Labor & Employment Law Daily Ghanaian nurse’s reassignment to ‘diversity job’ was adverse employment action
Wednesday, December 11, 2019

Ghanaian nurse’s reassignment to ‘diversity job’ was adverse employment action

By Kathleen Kennedy-Luczak, J.D.

As the only black member of the nursing management team, the nurse manager, an immigrant from Ghana, was the only person who suffered a significant alteration to her job duties in a department reorganization.

A federal district court in Utah dismissed in part the claims of a nurse manager who contended that she was subjected to discrimination and retaliation based on her race and national origin in violation of Title VII. Although the court concluded that the timeline of events did not support the nurse’s retaliation claim, she produced evidence to show that she was treated less favorably than others not in her protected class allowing the discrimination claim to survive the hospital’s summary judgment challenge (Adjei-Poku v. University of Utah, December 6, 2019, Kimball, D.).

Department restructuring. The nurse manager, a Ghanaian immigrant, has worked for the University of Utah hospital since 1995, rising from the position of a clinical nurse to a nurse director. Following a restructuring of the nursing department, the employee’s chain of command was changed. Her new supervisor noted what she perceived to be inadequacies in the employee’s skillset as an associate director. After more than a year, the supervisor determined that the department under the employee’s authority “need[ed] a new face” and reassigned the employee to a smaller unit. Subsequently, the employee informed hospital executives that she believed she was being discriminated against.

Nonexistent diversity job. The chief nursing officer advised the employee she would need to learn to work with her supervisor. In addition, the chief nursing officer offered the employee a newly-expanded role as the Director of Diversity. Yet, when the employee reported to begin her new diversity job, she was informed that the university had not yet created the position and the role had neither a budget nor a position description. Over the next several months, the employee retained her same salary and benefits while assisting to create the details of the new diversity role. However, the employee began to feel that her reassignment to the diversity position was the result of discrimination.

Complaint filed. Eventually, the employee accepted a new job as a nurse manager in a different department and, following her departure, the diversity position ceased to exist. The nurse filed suit, claiming discrimination and retaliation based on race and national origin in violation of Title VII. Specifically, the employee alleged that her supervisor eroded her authority, diminished the scope of her work, humiliated her in staff meetings, mocked her accent, moved her to a nonexistent position, removed her from nursing duties despite exemplary performance, and transferred her responsibilities to white women with less experience. Furthermore, the employee claimed she was transferred to the nonexistent diversity position in retaliation for her complaints about her supervisor. The university moved for summary judgment.

Supervisor’s comments. The employee contended that her supervisor’s mocking of her accent on various occasions constituted direct evidence of discrimination. The court considered whether such evidence demonstrated that the supervisor acted on her alleged discriminatory beliefs. The supervisor’s comments about her difficulty in understanding the employee could be interpreted as nondiscriminatory, especially given that the comments highlighted by the employee lacked any facially discriminatory remarks. Also, the evidence did not demonstrate that the supervisor reassigned the employee for discriminatory reasons. Although the comments could suggest that the supervisor acted based on racial animus, the court could not reach such a determination without relying on inference or presumption. Therefore, the court concluded that the employee’s testimony did not qualify as direct evidence of discrimination.

Adverse employment action. Next, the court considered whether the employee suffered an adverse employment action that occurred under circumstances which give rise to an inference of unlawful discrimination. The hospital argued that the employee did not suffer an adverse employment action because there was no change in pay or benefits, she voluntarily accepted the diversity job, and many employees’ responsibilities shifted in the reorganization. However, the court was not persuaded.

Despite not suffering a reduction in pay or benefits, the employee was reassigned to a position that involved significantly different responsibilities. The court characterized the diversity job as clerical-type work and no longer the duties of a medically-trained professional. It was a job that did not actually exist when the employee accepted it. Moreover, other employees were not reassigned to positions that involved significantly different responsibilities.

Protected class. Finally, the court determined that the employee produced sufficient evidence to show that she was treated less favorably than those not in her protected class. As the only black member of the nursing management team, the employee was the only person who suffered significant alterations to her job duties in the reorganization. In addition, the employee testified that all the responsibilities taken from her were given to white employees. Although the hospital articulated legitimate reasons for the supervisor’s actions, the court concluded that the employee provided sufficient evidence to create a genuine issue of material fact precluding summary judgment. Accordingly, the hospital’s motion was denied as to the employee’s discrimination claim.

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