The Fourth Circuit recently reaffirmed that not all forms of opposition constitute protected activity.

In Bills v. WVNH EMP, LLC, the Fourth Circuit unanimously affirmed the Southern District of West Virginia’s Order granting Defendants WVNH EMP, LLC, and Lanette Kuhnash’s (“Defendants”) motion for summary judgment on plaintiff Dorothy Bills’ (“Bills”) wrongful termination action under the West Virginia Human Rights Act (“WVHRA”). The sole issue was whether Bills engaged in protected activity under the WVHRA when she opposed sexual harassment by hitting a patient to stop him from groping her. Both courts agreed that Bills’ conduct was not protected by the WVHRA.

Background

In October 2018, Bills began working as a Certified Nursing Assistant at Worthington Healthcare Center. In July 2019, Bills and other staff were responsible for caring for a patient with limited mental capacity who could not control his actions or understand their effect. He was sexually aggressive, and staff were told to enter his room in pairs. At some point, Bills was in the patient’s room alone while another nurse took her break, and she leaned in close to him to provide him with water and help keep him in bed when he began to sit up, at which time he reached out and groped her. Bills smacked his hands in response, telling him it was not nice to touch her. Another coworker told her that smacking his hands was abuse and advised her to report the incident. Worthington has a policy prohibiting physical abuse, including any form of corporal punishment, and specifically prohibits slapping of hands.

In an incident report dated July 18, 2019, Bills wrote that the patient “kept trying to touch me in wrong places ... I, Dorothy, smacked his hands and he left me alone until I provided care for him again, I smacked his hands again and he left me alone while providing care each time. I did not smack him hard enough to hurt him, just like you would a child for misbehaving.” A witness also observed that Bills smacked the patient’s hands away. Defendants sent the report to a social worker, who filed a report with the West Virginia Department of Health and Human Services (DHHR). Defendants also suspended Bills’ employment.

On January 31, 2020, Bills received a letter from the Office of Health Facility Licensure and Certification stating that the allegation of neglect regarding the July 18, 2019 incident had been dropped. Bills did not hear anything further about her employment status from Defendants and did not receive a termination letter. However, the incident report Defendants sent to the DHHR indicated that Bills was terminated, and on August 1, 2019, Defendants entered her termination into the computer system. Bills’ suit followed, and Defendants moved for summary judgement on Bills’ sole claim for wrongful termination thereafter.

The District Court’s Decision

In analyzing Defendants’ motion for summary judgment, the court focused on one issue: whether the WVHRA prohibits an employer from firing an employee who physically punishes a patient for sexually harassing her. The Defendants argued that hitting a patient is not protected activity. Bills, however, argued that her actions did constitute protected activity because unwanted sexual groping violated the WVHRA, and she smacked the patient’s hands in response to that violative conduct.

The court ultimately concluded that Bills’ actions did not constitute protected activity. Under the WVHRA, protected activity includes opposition to a practice that the plaintiff reasonably and in good faith believes violates the provisions of the WVHRA. However, the employee’s opposition must be reasonable in the sense that it must be based on a set of facts and a legal theory that are plausible and the view must be honestly held and be more than a cover for troublemaking. The court noted that opposition to an unlawful employment practice typically involves reporting it and/or demanding that the employer correct the problem. Bills did not identify any case 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. As a result, the court granted summary judgment to Defendants.

The Fourth Circuit Affirms the Decision

Bills appealed, however the Fourth Circuit agreed with the district court’s decision, finding that Bills did not carry her burden to show that her actions—which she described as “smack[ing] [a patient’s] hands” away “not . . . hard enough to hurt him, just like you would a child for misbehaving” to stop him from groping her—constituted protected activity under the WVHRA. Accordingly, the Fourth Circuit affirmed the district court’s order granting summary judgment to Defendants.

Employer Takeaways

This decision illustrates that hold that not all opposition constitutes protected activity. Particularly when, as in this case, the employer has an underlying policy prohibiting the use of physical contact, an employee’s subsequent use of physical force—even to combat unwelcome sexual advances—will constitute “unreasonable” opposition and constitute valid grounds for discipline.

Employers should:

1. Examine their underlying workplace policies to ensure they place employees on notice of unacceptable conduct.
2. Address employee incidents on a case-by-case basis.
3. Consult with counsel if faced with an incident that may implicate employee “unreasonable opposition.”