A noogie could be retaliation. (I’ll take “What We Were Never Taught In Law School” for $400.)

Giphy.com

noogie || noun noog·ie \ ˈnu̇-gē \

According to Merriam Webster, a “noogie” is the act of rubbing one’s knuckles on a person’s head so as to produce a mildly painful sensation.

But, could a noogie be considered an act of retaliation under Title VII of the Civil Rights Act of 1964?

(Hey, what did you expect? It can’t be Harry Potter around here every day.)

So about dem noogies…

***shudders with flashback to summer camp***

For today’s case, let’s head down to Alabama for Howell v. Baptist Health System, Inc. (opinion here). Ms. Howell alleged that Baptist required her to work in an environment tainted by pervasive sexual harassment and retaliated against her for lodging complaints related to that harassment.

The big incident, according to Ms. Howell, was an encounter with an outside pharmaceutical sales representative who allegedly made a series of inappropriate comments including referring to a “lesbian affair” conducted by a previous clinic manager and claiming that he was “a very controlled lover . . . [who] could rock [Howell’s] world.”

After that ick, Ms. Howell complained to one of the clinic physicians, Dr. Wilson. And that’s when things really got weird:

Dr. Wilson also took the opportunity to make a series of inappropriate comments including: (1) a reference to the previous clinic manager having sex with Goldweber; (2) a reference to the previous clinic manager’s “camel toe;” and (3) looking down Howell’s blouse while telling Howell she should appreciate men who looked at her breasts because “humans are the only people that have sex looking at each other.” … Bizarrely, Dr. Wilson also gave Howell a “head noogie,” a term the parties use to refer to Dr. Wilson’s practice of grabbing another person’s head and pressing his forehead against their face…. Including this incident, Howell asserts that she received five “head noogies” from Dr. Wilson.

Five “head noogies”?!?

(By the way, asking for a friend, is there another kind of noogie? Anyway…)

Among other things, the plaintiff alleged that these head noogies violated Title VII as acts of retaliation? Is she right?

Do “head noogies” violate Title VII?

To establish retaliation, the plaintiff is required to show three elements.

  • First, she engaged in an activity protected under Title VII (e.g., complaining about discrimination).
  • Second, she suffered an adverse employment action. While many people picture a termination or a suspension when thinking about an adverse employment action, all a plaintiff has to show is that the employer acted so as to dissuade a reasonable worker from making or supporting a charge of discrimination.
  • Finally, the third element of the retaliation claim is that there was a causal connection between the protected activity and the adverse employment action.

Here, we know that the plaintiff complained. But, what about the second prong? No, she wasn’t fired. But, could a head noogie dissuade a worker from making or supporting a charge of discrimination?

(It sure made me think twice about not wiping the seat after using the bathroom at summer camp but, again, I digress…)

Here’s what Judge Abdul Kallon had to say about that:

The argument that Howell did not suffer an adverse employment action based on her protected conduct is equally unavailing….Here, there is evidence that after Howell complained about being sexually harassed by Goldweber, Dr. Wilson confronted Howell in her office and noted that he was “pissed” about the report….Previously, Dr. Wilson had also admonished Howell not to report the event, a confrontation during which he administered a “head noogie” to Howell, a direct act of physical intimidation….Further, on at least three occasions following the Goldweber incident, Dr. Wilson approached Howell in the hall and again administered a “head noogie.”… A reasonable person could certainly take this behavior as Dr. Wilson’s attempt to continue to physically intimidate Howell to prevent her from raising additional complaints.

So, not only is a noogie on the list of 16 school pranks on Wikipedia, it may be enough to earn a jury trial on a Title VII retaliation claim.

 

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