A federal judge in Vermont has decided to allow a civil rights complaint against a Burlington nursing home to be heard by a jury, according to a filing this week.
The lawsuit, brought by the U.S. Equal Employment Opportunity Commission, alleges Elderwood at Burlington nursing home operators maintained a hostile work environment and failed to protect black employees from persistent racial harassment from residents in 2020.
In a filing this week, a federal District Court clerk set the jury draw for Dec. 7. The trial, which will be overseen by Chief District Judge Christina Reiss, is expected to start soon after, according to court records.
The federal commission in 2022 filed a complaint against 98 Starr Road Operating Co., LLC, which does business as Elderwood at Burlington. The complaint followed reporting by Seven Days recounting what employees said they experienced in 2020.
The complaint alleged six black staff members endured race-based verbal and physical assaults from white residents. The nursing home managers and supervisors were informed of the behavior and did not take sufficient or swift action to address the situation and prevent further harassment, according to the lawsuit.
In the complaint, the federal commission asked the federal court in Vermont to order the nursing home operators to pay financial relief to affected employees. The complaint also asked that the nursing home operators adopt and enforce policies to provide equal opportunities for black employees and eliminate “unlawful employment practices.”
The original complaint was then amended by the federal commission in 2024 to include Elderwood Administrative Services LLC, which is the company that also operates the Burlington nursing home with 98 Starr Road Operating Co., LLC. Jeffery Rubin and Warren Cole own the nursing home through these companies, according to the Centers for Medicare and Medicaid Services.
The commission demanded a jury trial in that amended complaint.
Elderwood at Burlington has come under federal scrutiny before. In 2021, federal regulators found Elderwood at Burlington had failed to provide adequate care for residents during a rampant outbreak of Covid-19 in the facility. The Burlington nursing home is rated one star out of five, according to the federal rating system by the Centers for Medicare and Medicaid Services. This low rating is due to below-average staffing, health inspections and quality measures.
In a March order, Reiss, the Vermont district judge, denied the operator’s request to settle the hostile work environment case without a full trial.
Elderwood asserted, among other things, that its leadership was limited in intervening during incidents that the lawsuit describes as racial harassment because of the need to comply with federal and state regulations against restraining or removing residents from a facility. Therefore, Elderwood argued the facility’s operators should be absolved of responsibility to prevent workplace harassment under Title VII of the Civil Rights Act of 1964.
But Vermont law does not bar the involuntary restraint or discharge of nursing home residents under certain circumstances including when necessary to protect the safety of themselves or others, according to the court order.
The EEOC and lawyers for Elderwood at Burlington declined to comment on the active litigation.
“Viewing the totality of the evidence in a light most favorable to the EEOC, a reasonable jury could find that the staff’s work environment was permeated with severe or pervasive racial discrimination and created an objectively and subjectively hostile work environment for which Elderwood did not take sufficiently prompt and effective remedial measures,” Riess wrote in the March order.
The state’s Department of Disabilities, Aging and Independent Living, which provides programs and services for older adults and people with disabilities, could not comment on the specifics of this case, according to a statement provided by spokesperson Rebecca Silbernagel.
But Silbernagel wrote that the Agency of Human Services, which oversees the department, is dedicated to the safety and welfare of people in the state’s long-term care system, “as well as support for those in our workforce who provide that care.”
