Labor & Employment Law Daily Wrap Up, RETALIATION—6th Cir.: No error in requiring CNA to show reasonable, good faith belief conduct she reported was rape, (Sep 11, 2025)

By Kathleen Kapusta, J.D.

The district court also did not abuse its discretion in allowing the admission of limited evidence of the certified nursing assistant’s sexual history.

While a certified nursing assistant who reported that she had been raped by a security guard did not need to prove that the conduct was, as a legal matter, a rape, she did need to show, for purposes of her Title VII retaliation claim, her reasonable and good faith belief the conduct violated Title VII, the Sixth Circuit stated, finding the district court did not err in requiring this. Nor did the lower court err in admitting evidence at trial of her sexual behavior, including communications with the security guard, to demonstrate her consent to the alleged rape (Graf v. Morristown-Hamblen Hospital Association, No. 24-5798 (6th Cir. Sept. 10, 2025)).

Work friends? As an emergency room CNA, the plaintiff worked alongside security guards who were employed by a third-party security firm and stationed around the department. In June 2021, she and one of the guards began texting each other, exchanging hundreds of texts during the following months. Though the CNA characterized her relationship with the guard as “work friends,” she admitted she discussed her past abusive relationships and intimate sexual matters with him. For his part, he claimed they “were both part of the BDSM world” and were having intimate, sexual conversations. The two also met regularly doing their breaks.

Alleged rape. One day in June 2021, the CNA agreed to meet the guard for lunch. He took her the security office, where she was not authorized to be. Once there, she claimed he handcuffed and raped her. The guard, however, contended that the encounter was consensual and that while she said “no” and “stop” several times, they had discussed safe words prior to the encounter and “no” and “stop” were not their agreed-upon words.

The CNA did not report the incident and during the following weeks, she continued to text with him, purportedly because she was scared and wanted to appease him. He claimed, however, that they sent explicit pictures and videos “back and forth as playful banter to each other as either teasing or showing something off.” They also continued to meet in person.

He’s fired. In October, after learning that the guard was being investigated by the hospital for sexually harassing another employee, the CNA told the guard’s supervisor that he had raped her. She submitted a written report the next day and when the guard admitted to having sex with her, he was fired.

After an investigation, the company that employed the guard submitted a report noting that the CNA had entered the security office “through the side door in the boiler room to prevent being seen by any cameras;” that the guard admitted to having consensual sex with her but denied that it was forced; and that he claimed he had videos and pictures of the two of them exposing themselves, which they had sent each other.

She’s fired. The hospital, after interviewing the CNA, ultimately fired her because “she was in an unauthorized area while on the clock and had intercourse on company property.”

Lower court proceedings. The CNA later sued, asserting claims under Title VII for hostile work environment, sexual harassment, and retaliation, as well as a variety of common-law tort claims. The district court granted summary judgment on her sexual harassment and hostile work environment claims but allowed her retaliation claim and one tort claim to advance to trial. Prior to trial, it found that evidence of her communications with the guard, including the explicit photographs, were admissible. It also found that evidence as to whether or not she had consented to the encounter was relevant to determine whether she had a reasonable and good faith belief her allegations constituted a Title VII violation. After trial, the jury ruled in favor of the hospital and the court entered judgment against the CNA.

Reasonable and good faith requirement. On appeal, the CNA first argued that the district court erred in concluding that, to establish her Title VII retaliation claim, she was required to prove her reasonable and good-faith belief she was raped. Disagreeing, the Sixth Circuit noted that it has held that “[a] person opposing an apparently discriminatory practice does not bear the entire risk that it is in fact lawful; he or she must only have a good faith belief that the practice is unlawful.” Further, the court observed, it has since interpreted that language to mean that a retaliation claimant must demonstrate “that the opposition [was] based on ‘a reasonable and good faith belief that the opposed practices were unlawful’” to prove they engaged in protected conduct. A retaliation claimant, however, does not need to oppose actual Title VII violations to be protected from retaliation.

Thus, said the court, while the CNA did not need to prove to the jury that the conduct she reported was actually rape, she did need to show she reasonably believed the conduct violated Title VII. Moreover, the hospital was entitled to introduce evidence rebutting her alleged good-faith belief, including evidence she consented to the sexual encounter, as that was directly relevant to the reasonableness of her belief in whether Title VII prohibits that conduct.

Though the CNA argued that “there is no need to determine whether there was a good faith belief when a report of rape is so obviously a practice that is violative of Title VII,” the court explained that its inquiry was not whether a rape violates Title VII but whether she had a good-faith belief the guard raped her. And while it has not explicitly held that a plaintiff may fail to satisfy the reasonable and good-faith belief standard where “there are not facts from which a plaintiff could have reasonably believed that a violation occurred,” the court noted that several of its sister circuits “have made clear that Title VII retaliation plaintiffs do not engage in protected conduct when they make a false, fabricated, or malicious complaint of unlawful conduct because such plaintiffs do not reasonably and in good faith believe in the truth of their complaint.”

No error. Thus, even though it was reasonable for the employee to believe that a rape by a hospital security guard violated Title VII, she still had to prove her reasonable, good-faith belief that the guard’s purported conduct constituted sexual harassment, said the court. Thus, the district court did not err in concluding that in proving her retaliation claim to a jury, she was required to demonstrate she reasonably and in good faith believed that, when she made her complaint against the guard, she was reporting a rape.

The court cautioned, however, that while an employer, in rebutting a plaintiff’s reasonable and good-faith belief, may introduce evidence the complainant believed the alleged sexual misconduct was consensual, the evidence must be narrowly tailored to the complainant’s own belief in the consensual or nonconsensual nature of the alleged misconduct.

Evidence of sexual history, predisposition. The CNA also argued the district court abused its discretion in determining that evidence of her communications with the guard, including the pictures she sent to him, were admissible despite the limitations of Rule 412. While she claimed the court erred in failing to adequately determine that the probative value of the proffered evidence substantially outweighed the danger of harm and unfair prejudice to her, Rule 412, the appeals court observed, prohibits the admission of “evidence offered to prove that a victim engaged in other sexual behavior” in a proceeding “involving alleged sexual misconduct.”

Here, the hospital sought to introduce evidence of the CNA’s sexual communications with the guard to show she consented to the sexual encounter, not to prove that she engaged in other sexual behavior. “Under these circumstances,” said the court, “the evidence of [the CNA’s] sexual behavior—i.e., her communications about her sexual preferences and the sexually explicit photographs of herself that she sent to [the guard]—did not prove that she consented to ‘other sexual behavior’ but this specific sexual behavior.” Accordingly, the district court did not err in allowing the hospital to introduce the evidence.

To the extent evidence of her communication with the guard might be offered to prove her sexual predisposition, the court pointed out that evidence of the CNA’s references to the BDSM community and her identification as generally submissive was admitted at trial for the narrow purpose of demonstrating her consent to the specific encounter with guard and no evidence was offered to prove her sexual predisposition.

Reputation and sexual history. As to the CNA’s contention the district court erred in admitting evidence of her sexual behavior outside of her interactions with the guard, the court found it unclear what she was referring to as the district court barred the introduction of any evidence of her “private communications regarding her sexual preferences or predisposition” with any of her coworkers or other security guards. The only evidence going to her reputation introduced at trial, the court again observed, was evidence related to her discussion of the BDSM lifestyle and her general sexual preferences with the guard and it was offered to show her reputation for sexual behavior but in the limited context of demonstrating her consent to the encounter with the guard. Accordingly, the court found no reversible error in admitting certain categories of evidence.

The case is No. 24-5798.

Judge: Moore, K.

Attorneys: Heather Moore Collins (HMC Civil Rights Law) for Samantha Graf. Jay W. Mader (Arnett, Baker, Draper & Hagood) for Morristown-Hamblen Hospital Association.

Companies: Morristown-Hamblen Hospital Association

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