A nursing home worker’s hand-slapping of a groping resident is not protected under the West Virginia Human Rights Act, a federal court has ruled.

Worthington Healthcare Center fired Dorothy Bills after she slapped the hand of a mentally challenged resident who had been groping her. Bills sued for wrongful termination and WVNH Emp LLC, the company that owns Worthington, asked for a summary judgment. 

In issuing the dismissal, the court noted, “it is clear that physically punishing a patient is not a reasonable means of opposing sexual harassment in the workplace.”

The US District Court for the Southern District of West Virginia last week said Bills’ own description of the slapping was crucial in its decision to dismiss the wrongful termination suit and used the US Civil Rights Act of 1964 to partially support its ruling. 

“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,’” read part of the decision.

“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.”

Even though the decision was specific to its application and interpretation of West Virginia statute, the court supported its ruling partially by citing case law that said “illegal actions cannot constitute protected activity under” Title VII of the Civil Rights Act of 1964, according to a blog post at pospislaw.com.

The court said that case law, in combination with its perception to “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,” informed its decision.

“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,” read the decision.

“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 Department of Health and Human Resources’ 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.”