In a span of no more than three days the nursing assistant complained of sexual harassment by a patient, was written up for insubordination, was twice sent home early and was terminated.  Proximity in time between a legally protected activity by an employee and adverse action by the employer can be evidence of employer retaliation. UNITED STATES DISTRICT COURT OHIO May 17, 2018

  One of the nurses aides’ duties at the nursing home was taking residents outside and supervising them while they smoked.  One of the facility’s mentally disabled residents sexually harassed an aide while he and several other residents were outside smoking.  

  The aide complained to her unit manager, who basically laughed it off saying, "He’s just human, he’s a man."  Then the aide went over her manager’s head to the administrator of the facility, to complain about the harassment itself and her unit manager’s response which she felt was inadequate.  The administrator told her if it happened again the resident would be removed from the facility.  The administrator also promised to see to it that the resident’s care plan was altered so that this particular aide would not be assigned to care for him.  He said he would also implement a new policy that two staff members would be assigned to supervise residents when they went outside to smoke.  However, nothing was ever actually done to follow through with the changes promised by the administrator.

  More than a month after the first incident the aide was again assigned to take the same group of residents out to smoke, by herself.   The same resident sexually harassed her again.  She phoned the facility’s new administrator.  Two days later she refused to take the same resident outside to smoke.  That drew verbal criticism from her unit manager.  That afternoon she was brought into a meeting with her unit manager, the head of human resources and the administrator.  The next day she was fired for insubordination over her complaints of sexual harassment that went outside the chain of command.

  The US District Court for the Southern District of Ohio believed the accusation of insubordination was only a smokescreen for retaliation for which the aide can sue her former employer.  The facility had no actual policy for a chain of command employees were expected to follow for voicing complaints of on-the-job harassment.  An employee’s right to complain about sexual harassment and to be free from employer retaliation for doing so is guaranteed by US and state antidiscrimination laws.  It is irrelevant whether the offensive acts complained of amounted to sexual harassment as defined by law, as long as the employee had a good-faith belief his or her rights were violated. Cotton v. Nursing Home, 2018 WL 2271009 (S.D. Ohio, May 17, 2018).