A respiratory therapist can proceed with her civil rights claims because questions remain about whether her hospital employer intended to honor a patient’s request that he not be treated by black employees, a federal court has ruled. Caprice McCrary v. Oakwood Healthcare, Inc., C.A. No. 14-14053 (E.D. Mich. Mar. 16, 2016).

Caprice McCrary, an African-American, works as a respiratory therapist at Oakwood Hospital. A patient treated in the Hospital’s emergency department and subsequently admitted informed a nurse-in-training in the emergency department that he did not want any black people taking care of him. The nurse-in-training made a note in the patient’s record that he stated, “I do not want any black people taking care of me at all.” When McCrary later went to patient’s room to provide him a breathing treatment, the patient twice refused to allow her to treat him, once saying to her that she must not have read his chart.

McCrary complained to the Hospital about the patient’s request. The Hospital apologized for how the request was handled and informed the patient that it would not honor the request. The Hospital also told McCrary she could treat the patient, could have someone accompany her when she did so if she was afraid of him, and could have a different assignment if that was her preference. When McCrary went to treat the patient, she found that he was no longer on the unit where she was assigned.

McCrary sued the Hospital, alleging that by allowing the assignment of its employees to care for the patient to be based on race, the Hospital violated 42 U.S.C. § 1981, which prohibits intentional race discrimination in the making and enforcing of contracts involving both public and private actors, and Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), which prohibits discrimination with respect to employment, compensation, or a term, condition, or privilege of employment. The Hospital filed a motion for summary judgment seeking to dismiss McCrary’s claims.

The court noted some discrepancies in the factual record called for denying summary judgment. First, the Hospital had not identified the charge nurse to whom the nurse-in-training presented the patient’s request, raising a question as to what she was told about how the Hospital would handle the patient’s request. The nurse-in-training did not write in the patient’s record that the request would not be granted, which she testified she believes she would have done if she had been given such an instruction. There also was a question as to the credence a nurse gave to the notation in the patient’s record, since he asked McCrary to find someone else (i.e., a Caucasian respiratory therapist) to treat the patient. Finally, because the record fails to reflect when the patient actually underwent surgery, a question remained as to whether the patient was moved to avoid having McCrary be the respiratory therapist called upon to perform the patient’s needed breathing treatments.

The court denied the Hospital’s motion for summary judgment on all counts, concluding a reasonable jury could find that by recording patients’ race-preference requests in the patients’ record, failing to have a policy for handling race-based requests by patient, and by not training its employees to reject those requests, the Hospital purposefully allowed the assignment of its employees’ duties to be determined by their race.

It is important for employers to note that unlike Title VII of the Civil Rights Act and many state anti-discrimination laws, the state and federal laws at issue in this case do not require a plaintiff to demonstrate that she suffered an adverse employment action. Accordingly, the court rejected the Hospital’s argument that McCrary’s claims should be dismissed because this single patient encounter did not alter her terms and conditions of employment, e.g., she was not disciplined and suffered no loss of pay and no reduction in hours.

This case highlights the importance of training and maintaining clear anti-discrimination policies.