Nurse’s assault claims will go to jury

Where a co-worker touched a UVA nurse on at least three occasions and she either appeared uncomfortable or told co-workers she was uncomfortable, and the touching occurred at the same time she requested he stop making sexual comments, the assault and battery claims survived summary judgment, but her emotional distress and hostile work environment claims were dismissed. 

Background

Tina McCoy worked at the UVA Medical Center as a nurse for nearly four years before filing sexual harassment complaints against two co-workers: Charles Wilson and Ryan Rall. Ultimately, McCoy filed suit against them and UVA. 

Now pending are motions for summary judgment filed by Wilson, Rall and UVA. Wilson and Rall’s motion addresses McCoy’s claims for assault, battery and intentional infliction of emotional distress, or IIED. The UVA motion addresses McCoy’s claims for IIED and hostile work environment under Title VII.

Assault and battery 

Battery requires unwanted physical touching, and the record shows that Rall never touched McCoy. Thus, there is no actionable claim of battery.

As for the assault claim, another employee saw Rall stand 18 inches away from McCoy and corner her in the medication room. But the record contains no evidence in which McCoy described Rall’s physical acts toward her. She did not testify that Rall put her in fear or apprehension of imminent bodily harm. There is also no evidence that Rall ever acted in a manner that McCoy interpreted to be threatening to her person. Rall’s conduct toward McCoy may have been unprofessional, but his statements alone do not vault Rall’s cornering of McCoy into an assault. Accordingly, the court will grant Rall’s motion for summary judgment as to the assault and battery count against him.

With respect to Wilson, there is a genuine dispute of material fact as to whether he assaulted and battered McCoy. There is ample evidence to show that Wilson touched McCoy in the workplace on at least three occasions and that McCoy either appeared uncomfortable, or told co-workers she was uncomfortable, with Wilson’s behavior. These acts occurred at a period in time when McCoy was asking Wilson to stop making sexual comments to her. Accordingly, the court will deny Wilson’s motion for summary judgment as to the assault and battery claim against him.

IIED

It is undisputed that Wilson and Rall both made inappropriate and rude comments to McCoy. Statements like “[y]ou are so beautiful, damn you are just fine so hot” or “I don’t care if your [sic] married or not if you change your mind let me know” are unprofessional, but McCoy has not shown that they were “so outrageous in character, and so extreme in degree,” as to be considered “utterly intolerable in civilized” society. Rall’s two comments about “get[ting] hard” do not meet the high threshold for an IIED claim under Virginia law. All three defendants are granted summary judgment on the IIED claim.

Hostile work environment

To prevail on a hostile work environment claim against the employer, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff’s [protected characteristic]; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” The fourth prong is fatal to McCoy’s case.

Throughout late 2017 and March 2018, McCoy had access to procedures for reporting complaints of workplace misconduct but did not pursue those outlets. She did not notify UVA management about the inappropriate behavior until the meeting March 7, 2018.

Moreover, the Fourth Circuit has held that “when an employer’s remedial response results in the cessation of the complained of conduct, liability must cease as well.” Upon learning about the harassment, UVA immediately placed Wilson and Rall on administrative leave and undertook a three-week long investigation. When the investigation was finished, UVA instituted remedial action against Wilson, counseled Rall and implemented measures to keep McCoy separated from them. Therefore, the court will grant UVA’s motion for summary judgment as to the Title VII claim.

UVA’s motion for summary judgment granted. Rall’s motion for summary judgment granted. Wilson’s motion for summary judgment denied.

McCoy v. University of Virginia Medical Center, Case No. 3:19-cv-50, Feb. 9, 2021. WDVA at Charlottesville (Moon). VLW 021-3-055. 20 pp.