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Home Health Aide Files Sexual Harassment and Retaliation Suit

Shelby Krzastek

On March 8, 2017, Anita Poe-Smith filed suit against Epic Health Services, Inc. (“Epic”), and Leo and Sherrie Weigand, alleging sexual harassment and retaliation. Ms. Poe-Smith works for Epic as a home health aide.

In February 2015, Epic assigned Ms. Poe-Smith to work for a client residing in the home of Leo and Sherrie Weigand. Ms. Poe-Smith claims that from February 2015 to May 2015, Mr. Weigand sexually harassed her by directing sexual innuendos and inappropriate comments toward her and, ultimately, physically assaulting her when, according to Ms. Poe-Smith, Mr. Weigand pushed her down and hit her on her buttocks. After reporting the incident to Epic, Ms. Poe-Smith was offered a new assignment, which she was unable to accept because it interfered with her familial obligations. Several weeks later, Epic offered her another full-time assignment, which she accepted. Ms. Poe-Smith then sued Epic Health Services and the homeowners for sexual harassment and retaliation.

At summary judgment, Epic argued that, because it offered Ms. Poe-Smith a new assignment immediately after her first complaint, it had taken immediate corrective action and could not be liable for the harassment. Ms. Poe-Smith argued that Epic should have been aware of Mr. Weigand’s behavior based on his interactions with a supervisor at Epic, as well as Mr. Weigand’s history with other home healthcare services. Ms. Poe-Smith claimed that Mr. Weigand had been calling her supervisor and sexually harassing her during the same time that Ms. Poe-Smith was working in Mr. Weigand’s home. Mr. Weigand also asked the supervisor if he was allowed to give Ms. Poe-Smith gifts.

The U.S. District Court for the District of Delaware found it plausible that Ms. Poe-Smith’s employer should have known about the harassment before she complained. The court, however, dismissed Ms. Poe-Smith’s claims that Epic had retaliated against her by failing to give her a new assignment that was comparable to her current one on the grounds that, days after Ms. Poe-Smith’s complaint, Epic offered her a new assignment, and, after denying that one, offered her job opportunities until she found one that was acceptable.

The court’s decision followed various district and circuit courts which had determined that an employer is responsible for the harassment of its employee by a non-employee when the employer knows or should have known of the harassment and fails to take immediate corrective action. Accepting Ms. Poe-Smith’s allegations as true, the court decided that Epic should have known about Mr. Weigand’s inappropriate behavior prior to Ms. Poe-Smith’s complaint because Mr. Weigand sexually harassed Ms. Poe-Smith’s supervisor over the phone, and Epic should have known he was engaging in similarly inappropriate behavior with her. Moreover, Mr. Weigand’s question to the supervisor about giving gifts to Ms. Poe-Smith should have forewarned the supervisor of the possibility that Mr. Weigand was acting inappropriately toward her.

If you have experienced sexual harassment or have otherwise been subjected to discrimination and harassment in the workplace, please contact The Harman Firm, LLP.

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