Retaliation Case Study: Nurse Assistant Cannot Slap Patient's Hand as Protected Activity In Dismissed Retaliation Claim

Author: Gregg Mosson | | Categories: Attorney , Employment Law , Lawyer , Legal Consultation

In the context of a nursing home, nurses and certified nurse assistants deal with some difficult patients while providing intimate care.  In the matter of Bills v. WVNH EMP, LLC, et. al., a certified nurse assistant in West Virginia caring for a disabled male patient with cognitive disorientation, who made advances on her, was not protected by federal sexual harassment law when slapping his hand away on three different admitted occasions.  Bills v. WVNH EMP, LLC, et. al., Mem. Op., Civ. No. 2:22-cv-00093 (D. W. Va. Dec. 1, 2022). 

As a result she was lawfully fired, after the final slapping incident was reported by co-workers as patient abuse.  The nurse assistance here was investigated as well by the West Virginia certifying agency, but found not to have committed patient abuse.  Still, she was fired for this slapping because she violated the nursing home's policies on not hitting patients, the nursing home claimed to the agency and court.

In summary, the trial court dismissed the case because the nurse assistant admitted to slapping the patient's hand on three occasions as a form of deterance, like you would a misbehaving child, she said.  The Court found this sort of punitive battery was neither complaining about sexual harassment at work and also could not constitute opposing it, which are the two categories of protected activity, in Bills v. WVNH EMP, LLC, et. al., Mem. Op., Civ. No. 2:22-cv-00093 (D. W. Va. Dec. 1, 2022).  The Fourth Circuit has affirmed.  Bills v. WVNH EMP, LLC, et. al., Slip Op. 22-2274 (May 30, 2024) (unpublished).

The Bills opinion represents the importance of every statement in an employment law case.  Here the trial court focused on the nurse assistance's admission that she slapped the patient as a form of punishment, like a misbehaving child, to dismiss the legal claim.  In other words, if the nurse assistant had simply slapped the patient's hand once in split second reaction to the patient's invasive harassment, this decision would not apply.

II. Discussion:

When an employee complains about or opposes sexual harassment at work, this can constitute protected activity. 

If so, it is protected from retaliation, including termination.  The West Virginia District Court focused on this nurse-assistant and patient interaction as it relates to either complaining about sexual harassment at work or opposing it, the two subsection definitions of protected activity.  As the nurse assistant did not complain by any account, but slapped a patient, it was analyzed under the category of oppositionBills v. WVNH EMP, LLC, et. al., Slip Op. pp. 8-10.

As the Court stated: "The Fourth Circuit has held that illegal actions cannot constitute protected activity under Title VII.  Netter v. Barnes, 908 F.3d 932, 939 (4th Cir. 2018) (citing Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253 at fn. 3 (4th Cir. 1998) (reviewing confidential personnel files to identify comparators was not protected activity).  Further, conduct in opposition to an unlawful practice must be reasonable.  Id. at 938."

Protected activity is "reporting it and/or demanding that the employer correct the problem," said the Court.  Bills v. WVNH EMP, LLC, et. al., Slip Op. p. 9.

Here in the court's reasoning, the nurse assistant could have complained to the employer further about this patient or demanded the problem be corrected, as either complaining or opposing protected activity.  The nursing facility did have a policy that this patient required two staff members be present for care.  A further rule, whether demanded or implemented, might have required this male patient be cared for my male staff, whether GNA, CNA, or otherwise.

The court's ruling did rely on the nurse assistance's own admission that she slapped the patient like a misbehaving child, and so "it is clear that physically punishing a patient is not a reasonable means of opposing sexual harassment in the workplace."  Slip Op. 9.

Hypothetically, if a nurse assistant protected herself or himself in a one-time reaction and then complained about sexual harassment, that individual would be better positioned to argue she or he engaged in natural self-defense in the heat of the moment coupled with Title VII protected activity. 

Without doubt, nursing home care is difficult: important, delicate, and demanding.  Hitting a patient also can constitute patient abuse.  It takes a self-possessed professional to navigate any harassment by a disabled patient.


If you work in the healthcare field with aggressive patients, complaining about workplace dangers such as sexual harassment or other forms of illegal harassment can constitute protected activity.  If there is an aggressive incident with a patient, reasonable self-defense may not disqualify one from protection because if it is reasonable, it should be protected as part of "reasonable opposition" to the harassment incident.  This said, the medical professional likely needs to report it too, because simply defending oneself does not inform automatically the employer (medical facility) of the problem afoot.  It does depend.

Here in Bills, the Court opined: "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."  Slip Op. 9.

Because the Fourth Circuit has affirmed through an unpublished opinion, this case is not binding on the federal courts in Maryland.  See Bills v. WVNH EMP, LLC, et. al., Slip Op. 22-2274 (May 30, 2024) (unpublished).  However, the decision is illustrative guidance.


          Gregg H. Mosson, Esq.

          Mosson Law, LLC


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