“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Amul Thapar cast the deciding vote to affirm the dismissal without trial of a woman’s workplace retaliation claim for reporting sexual harassment against her and other women. The May 2020 decision was in Nethery v. Quality Care Investors.

Thomila Nethery worked as a physical therapist assistant at a nursing home operated by Quality Care in Lebanon, Tennessee. Nethery was employed by Reliant Management Group, which contracted with facilities like Quality Care to provide services to patients.

Nethery was supervised by Patrick Grubbs, also a Reliant employee. Nethery reported that Grubbs sexually harassed her and other female workers. On one occasion, when she was heading to the bathroom to give a required urine sample, Grubbs told her “I’m going to sniff it … I’m going to splash it in my face. I love golden showers.” On another, he made sexually suggestive comments to her and “used a licorice stick to mimic oral sex.” Nethery explained that Grubbs “made sexual comments to Nethery and other therapists daily” and “called Nethery and other therapists ‘witch’ or ‘b—-.’”

In April 2016, Nethery and other employees complained to Reliant about Grubbs. After investigation, Reliant removed Grubbs from the facility and later fired him.

One day after Grubbs was removed, Samantha Mullins, Quality Care’s administrator for the Lebanon facility, approached Nethery to discuss the situation. Mullins told Nethery that she wanted to know what happened and that she could “remove” anyone she thought wasn’t a “good fit.” (Mullins later denied making these statements, but testimony from other Reliant employees corroborated Nethery’s account.)

At the end of April, Reliant’s regional manager told Nethery that she would have to be removed from the Lebanon facility so the company could “keep its contract” with Quality Care. She was told that she could not transfer to any nearby facilities because they also belonged to Quality Care, and that her only transfer option was to go out of state. She declined and was fired, although Reliant gave her “the highest recommendation” for her performance of her duties.

Nethery filed suit against Quality Care, contending that it had violated Title VII by complaining about her to Reliant when she reported Grubbs’ sexual harassment and by having her fired in retaliation. Reliant’s chief operating officer (COO) testified in district court that Mullins was “upset” that Grubbs had been fired and had complained that Nethery filed a report against Grubbs. The COO also stated that Mullins specifically requested that Nethery “not practice” in the Lebanon facility because she was not a “team player “and a “good fit.”

Despite this testimony and other facts, the district court granted summary judgment against Nethery without a trial, and Thapar was the deciding vote in an unsigned Sixth Circuit opinion affirming the decision. The majority claimed that unlike in previous cases, Quality Care was simply a client of Reliant and although Quality Care “may have affected” Nethery’s ability to work at the Lebanon facility, it “did not prevent her” from working at other facilities that were “out-of-state.”

George W. Bush nominee Helene White strongly dissented. She explained that based on relevant case law, even when a non-employer is a client, as in this case, it can be liable under Title VII where it has “significantly affected or interfered with” access to employment opportunities for a prohibited reason – in this case, in retaliation for a complaint about sexual harassment. The out-of-state offer was clearly not enough to warrant summary judgment against Nethery, White went on, particularly since the record was silent as to whether the offer “would have involved a demotion, reduced pay, reduced hours, or other forms of adverse action.”

White concluded that the record would support the conclusion that “Mullins had Nethery removed from the Lebanon facility because she was upset over Nethery’s allegations against Grubbs,” and that therefore Quality Care’s actions had the effect of “denying” Nethery employment “based upon impermissible grounds under Title VII.”

White would have sent the case back for reconsideration and possibly a trial on Nethery’s claims. But as a result of Thapar’s deciding vote, Nethery no longer has  a chance to seek justice for the sexual harassment she endured