The protections against employer retaliation in the West Virginia Human Rights Act do not extend to a nurse who physically disciplined a patient for groping her. In Dorothy Bills v. WVNH Emp, L.L.C. and Lanette Kuhnash (S.D.W. Va. No. 2:22-cv-00093, December 1, 2022).
Dorothy Bills was a certified nursing assistant at Worthington Healthcare Center in Worthington, West Virginia. In July 2019, Ms. Bills cared for John Doe, who had limited mental capacity and could not control his actions. Due to the patient’s sexual aggression, management instructed staff to enter his room in pairs.
Entering John Doe’s room alone because her coworker was on a break, Ms. Bills approached his bed to give him water and help keep him in bed as he sat up. After he touched her breasts and vaginal area, she smacked his hand and told her it was “not nice” to touch her. Following the advice of a coworker, she filed an incident report on July 18, 2019, likening her actions to punishing a child for misbehaving. Overall, Ms. Bills admitted to hitting the patient’s hands on three separate occasions, claiming she acted as if disciplining a child.
The director of nursing, Lanette Kuhnash, forwarded the report to a social worker and suspended Ms. Bills. The social worker filed an account with the West Virginia Department of Health and Human Services (DHHR), which ultimately dropped charges against her. However, the hospital terminated her.
Ms. Bills sued WVNH Emp, L.L.C., which operates Worthington Healthcare Center, and Ms. Kuhnash. She asserted that her termination was retaliation for resisting sexual harassment in violation of the West Virginia Human Rights Act.
WVNH and Ms. Kuhnash motioned for summary judgment. Finding no genuine issues of material fact, the court grants summary judgment.
The West Virginia Human Rights Act (WVHRA) does not stop an employer from discharging an employee for physically punishing a sexually offensive patient. Ms. Bill’s physical actions were not an attempt to prevent the groping but, rather, a punishment to the patient. The WVHRA protects employees from retaliation when they report sexual harassment and ask that the employer intervene. In a narrow holding, the court concludes that the WVHRA does not protect employees who respond to sexual harassment by physically reprimanding a patient.
It is unnecessary to decide whether the patient’s behavior was workplace sexual harassment or whether Ms. Bills abused the patient. Because smacking a patient’s hands as punishment for groping is not protected behavior under the WVHRA, the court grants the motion for summary judgment.
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