Nursing Assistant’s Smacking Alleged Groping Patient’s Hands Was Not “Protected Activity” For Sexual Harassment / Retaliation Claim, Court Holds

In Bills v. WVNH Emp, LLC, 2022 WL 17365256 (S.D.W.Va. Dec. 1, 2022), the court granted defendant’s motion for summary judgment dismissing her claim of wrongful termination asserted under the West Virginia Human Rights Act (WVHRA).

From the decision:

Unlike most wrongful termination cases, there is no dispute here as to why the Defendants terminated Ms. Bills’ employment. The Defendants terminated her employment for repeatedly smacking a patient who groped her. The Plaintiff seeks to portray her action as smacking his hands away from her to halt the inappropriate touching, but Ms. Bills clearly explained in her initial incident report, in her witness statement soon after the incident, and in her deposition, that she smacked his hands and scolded him to “reprimand” him, “like you would a child misbehaving.” (D. Bills Depo. at 62:9 and 61::1–2.) Thus, the only issue to be resolved is whether the WVHRA prohibits an employer from firing an employee who physically punishes a patient for sexually harassing her.

The Court finds that Ms. Bills’ actions in smacking a nursing home resident’s hands and scolding him for groping her are not protected by the WVHRA. The Plaintiff has not identified any case, even outside the nursing home context, in which physical violence or physical punishment directed at an asserted sexual harasser was found to constitute a protected activity in opposition to an unlawful employment practice. Opposition to an unlawful employment practice typically involves reporting it and/or demanding that the employer correct the problem. The Court need not reach the question of whether Ms. Bills’ actions legally constituted patient abuse, regardless of the DHHR’s decision to drop the investigation into the matter, because it is clear that physically punishing a patient is not a reasonable means of opposing sexual harassment in the workplace.

The issue in this case is quite narrow. The Plaintiff contends that the Defendant’s position would require employees to submit to sexual assaults by patients. Employees may certainly demand that their employer ensure a workplace safe from sexual harassment. The record does not establish the nature of the training provided to staff who must interact with patients who lack sexual inhibitions or exhibit other behavioral issues, or the resources and precautions available, beyond noting that staff were to enter John Doe’s room in pairs. If the staff, reasonably believing that John Doe’s action created an unlawful employment condition, needed additional resources or other protective measures to care for John Doe without being groped, filing complaints and demanding such resources would be protected activity. There is no factual record or legal argument to support any analysis of a healthcare facility’s obligations to its employees in managing discrimination or harassment from patients, and this case is limited to the question of whether the Defendants engaged in unlawful retaliation under the WVHRA by terminating Ms. Bills’ employment for smacking John Doe’s hands.

The court concluded that it was unnecessary for it to determine whether the patient’s actions constituted sexual harassment, whether plaintiff’s response constituted patient abuse, what obligation her employer had to protect employees from such harassment, etc.

Rather, explained the court, since the parties agreed that plaintiff was terminated for smacking a patient’s hands, and “[s]macking a patient’s hands and scolding him in response to inappropriate touching is not a protected activity in opposition to an unlawful workplace practice,” dismissal was warranted.

While the court’s decision was limited to its application and interpretation of West Virginia law, it supported its conclusion in part by citing to Fourth Circuit case law holding that “illegal actions cannot constitute protected activity under” Title VII of the Civil Rights Act of 1964, coupled with its observation that it will “construe the [WVHRA] to coincide with the prevailing federal application of Title VII unless there are variations in the statutory language that call for divergent applications or there are some other compelling reasons justifying a different result.”

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