Any intentional use of race, said the court, whether for malicious or benign motives, is subject to careful judicial scrutiny.
A supervisor’s reassignment of an African-American nurse just moments after being told by the nurse that a patient did not want that “black bitch” taking care of her provided direct evidence sufficient to raise a triable fact issue regarding her hospital employer’s intent, a federal court in Michigan ruled. Denying summary judgment against the nurse’s Title VII, Section 1981, and state-law race bias claims, the court also found that the reassignment for the last two and a half hours of her shift, if based on race, could be an adverse employment action (Williams v. Beaumont Health System, August 26, 2019, Roberts, V.).
With less than three hours left in her shift, the nurse attempted to help one of her assigned patients go to the bathroom. When the patient lost her footing getting out of bed, the nurse grabbed her to prevent her from falling. The patient then allegedly told the nurse not to touch her and requested a new caregiver.
No black nurse. Out in the hallway, the nurse purportedly overhead the patient tell someone on the phone that she did not want “that black bitch” taking care of her. Another coworker also overhead the comment. She immediately reported the comment to her supervisor, who then spoke to the patient. The nurse, again standing outside the patient’s room, allegedly overheard the patient tell the supervisor she did not want a black nurse. The supervisor then removed the nurse from caring for the patient and assigned a white nurse to take her place.
A little rough. At the end of her shift, the nurse told an HR rep what had happened, including that the patient never gave the supervisor a reason why she didn’t want the nurse anymore. Asked to investigate, the clinical manager talked to the patient, who said the nurse had been a “little rough” with her when she was trying to get out of bed. Although the hospital claimed the patient never said anything about the nurse’s race, the nurse claimed the patient was never asked whether she made a request based on race or whether she referred to the nurse as a “black bitch.”
At a subsequent meeting, HR allegedly told the nurse that patients have a right to refuse care for whatever reason. It was undisputed the hospital did not have a policy on what to do if a patient requests care based on the caregiver’s race.
Misplaced focus. Moving for summary judgment on the nurse’s race discrimination claim, the hospital argued that the patient’s statements, which were the only evidence of discrimination, could not be imputed to it. But this focus was “misplaced,” said the court, finding it important that moments after the supervisor was told of the “black bitch” comment, she reassigned the nurse.
Further, said the court, contrary to the hospital’s assertions, express classifications are not the only form of direct evidence of an intent to discriminate. Here, the nurse told the supervisor about the “black bitch” comment just before her reassignment and the patient also allegedly told the supervisor that she did not want a black nurse. Thus, a reasonable jury could find these nearly contemporaneous events were directly related to the supervisor’s decision-making process. In addition, the supervisor admitted that her asserted justification—that the patient said she did not like the nurse’s attitude—was not a legitimate reason to reassign the nurse. Accordingly, the court found the nurse provided sufficient direct evidence to raise a fact issue regarding the hospital’s intent.
Adverse action. Also rejected was the hospital’s assertion that the nurse did not suffer an adverse action because the reassignment was merely temporary or de minimis. Not only have courts found that an employer’s race-based assignment in itself may be an adverse action, they have held that even a brief abridgment of a plaintiff’s Section 1981 rights is actionable, observed the court here. Although the hospital cited to Crane v. Mary Free Bed Rehab. Hosp., in which that court found that a race-based assignment was de minimis, in that case the plaintiff had no direct care responsibility for the patient in question.
Here, however, the employee was assigned to provide care for the patient and was allegedly reassigned to accommodate her race-based preference. If this reassignment, observed the court, was based on the nurse’s race, it was an impermissible alteration of her responsibilities and the terms and conditions of her employment that was more than temporary or de minimis.
Nurse’s testimony. And while the hospital also argued that the nurse could not “recall with any consistency” what she overheard the patient say on the phone, and that she testified to at least nine versions of what the patient allegedly told the supervisor, the court found she did not “blatantly” contradict herself. Further, her coworker corroborated her testimony.
As to the hospital’s argument that the nurse had previously said the patient did not give the supervisor a reason for wanting a change, the nurse countered that she meant a “legitimate” reason and was very upset after the incident. Given this explanation and her coworker’s corroboration, a reasonable jury could credit her testimony.
Not hearsay. Nor were the patient’s statements inadmissible hearsay as the employer contended. Rather than attempting to prove the truth of the matter asserted—that the patient did not want a black nurse—the statements were relevant to show how the supervisor reacted to those statements. The nurse was attempting to prove the supervisor reassigned her to accommodate the patient’s racial preference, the court pointed out, and she would testify to show what the supervisor knew before she reassigned her.
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