UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CAPRICE MCCRARY, 

 

Plaintiff, Civil Case No. 14-14053 

 Honorable Linda V. Parker 

v. 

 

OAKWOOD HEALTHCARE, INC., 

Defendant. 

________________________________/ 

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT

 This lawsuit arises from an incident where a patient at Defendant’s hospital 

refused Plaintiff’s care because she is African-American. Plaintiff charges Defendant 

with race discrimination in violation of 42 U.S.C. § 1981 and Michigan’s ElliotLarsen Civil Rights Act (“ELCRA”) as a result.1

 Presently before the Court is 

Defendant’s motion for summary judgment, filed pursuant to Federal Rule of Civil 

Procedure 56 on August 28, 2015. (ECF No. 21.) The motion has been fully briefed. 

(ECF Nos. 22, 23.) The Court held oral argument with respect to Defendant’s motion 

on February 9, 2016. For the reasons that follow, the Court is denying the motion. 

 

1 Plaintiff asserted a claim of intentional infliction of emotional distress in her 

Complaint; however, she concedes to the dismissal of this claim in response to 

Defendant’s motion. (ECF No. 22 at Pg ID 163 n.1.) Defendant construed 

Plaintiff’s Complaint as also alleging a hostile work environment claim under 

§ 1981 and the ELCRA. Plaintiff indicates in her response brief that she is not 

asserting such a claim. (Id. at Pg ID 173 and n.2.) 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 1 of 17 Pg ID 284
2 

I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is 

appropriate “if the movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

The central inquiry is “whether the evidence presents a sufficient disagreement to 

require submission to a jury or whether it is so one-sided that one party must prevail 

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 

After adequate time for discovery and upon motion, Rule 56 mandates summary 

judgment against a party who fails to establish the existence of an element essential to 

that party’s case and on which that party bears the burden of proof at trial. Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

The movant has the initial burden of showing “the absence of a genuine issue 

of material fact.” Id. at 323. Once the movant meets this burden, the “nonmoving 

party must come forward with specific facts showing that there is a genuine issue for 

trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986) (internal quotation marks and citation omitted). To demonstrate a genuine 

issue, the nonmoving party must present sufficient evidence upon which a jury could 

reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty 

Lobby, 477 U.S. at 252. 

“A party asserting that a fact cannot be or is genuinely disputed” must 

designate specifically the materials in the record supporting the assertion, “including 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 2 of 17 Pg ID 285
3 

depositions, documents, electronically stored information, affidavits or declarations, 

stipulations, admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 

56(c)(1). The court must accept as true the non-movant’s evidence and draw “all 

justifiable inferences” in the non-movant’s favor. See Liberty Lobby, 477 U.S. at 255. 

II. Factual Background

 In May 2013, Plaintiff began working as a respiratory therapist at Oakwood 

Hospital (“Oakwood” or “hospital”) in Dearborn, Michigan. (ECF No. 22, Ex. 1 at 

13-15, 18, 47.) Plaintiff is African American. She is a very good therapist, is hardworking, and is qualified to do her job. (Id., Ex. 3 at 15.) Oakwood in fact has 

selected Plaintiff before as its “Employee of the Quarter.” (ECF No. 21, Ex. 1.) 

Plaintiff typically works a shift from 6:30 p.m. to 6:30 a.m., three days a week. 

(ECF No. 22, Ex. 1 at 8.) Elisa Benscoter, the manager of the Respiratory Care 

Department, has been Plaintiff’s supervisor throughout Plaintiff’s employment at 

Oakwood. (Id. at 29; Ex. 3 at 6, 8.) Benscoter usually works a ten-hour shift 

beginning at 5:30 or 6:00 a.m. (Id., Ex. 3 at 8-9.) When Benscoter is not at the 

hospital, Plaintiff reports to a senior respiratory therapist or charge therapist. (Id. at 

10-11.) Holly McShane is one of those senior respiratory therapists. (Id. at 11.) 

 On October 8, 2014, at approximately 1:43 p.m., a patient was admitted to 

Oakwood’s Emergency Room Department. He was experiencing shortness of breath 

and had a collapsed lung. (ECF No. 22, Ex. 4 at 26-27.) Angela Gilhooly, a nurse in 

training at the time, tended to the patient. (Id. at 10, 18-19.) After the patient was 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 3 of 17 Pg ID 286
4 

stabilized, he told Gilhooly that he did not want any black people taking care of him 

during his stay. (Id. at 10.) Gilhooly left the room and told her preceptor (i.e., a 

registered nurse who supervises a nurse in training), who told Gilhooly to notify the 

charge nurse and put the statement in the patient’s record. (Id. at 10, 19.) Gilhooly 

claims that she contacted the charge nurse by phone. (Id. at 11.) At the time of her 

deposition in this case, Gilhooly could not recall the name of the charge nurse she 

contacted or the charge nurse’s response when Gilhooly shared the patient’s comment. 

(Id. 11-12.) 

In its Answers to Plaintiff’s Interrogatories, Defendant identified Cheryl 

Aerson as the charge nurse for that day and time. (ECF No. 22, Ex. 10.) Aerson was 

an Assistant Clinical Manager in Oakwood’s Emergency Department in October 

2014. (Id., Ex. 2 at 6.) Aerson testified during her deposition in this case that 

although she was told that she worked on October 8, 2014, and typically worked the 

6:00 a.m. to 6:00 p.m. shift, she would not have been a charge nurse then. (Id. at 6-9.) 

Aerson further testified that she was unaware of the patient’s request on October 8 and 

would remember if she had been told about it. (Id. at 7, 11.) Counsel for the parties 

informed the Court at the motion hearing that they have not been able to identify who 

else may have been the charge nurse on duty when the patient made the request to 

Gilhooly. 

According to Gilhooly, she was directed by her preceptor to note the patient’s 

request in his record. Gilhooly therefore made the following notation in his record: 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 4 of 17 Pg ID 287
5 

“Pt made a request to writer stating ‘I do not want any black people taking care of me 

at all.’ Writer notified charge nurse of request.” (ECF No. 21, Ex. 8.) Gilhooly did 

not make a note in the patient’s record with respect to whether or not Oakwood would 

honor his request. (Id.) Gilhooly testified during her deposition that she never told 

the patient that his request would be granted. (ECF No. 22, Ex. 4 at 27.) She also 

testified that if the charge nurse had told her to advise the patient that his request was 

denied, she would have noted that in his record. (Id. at 16.) 

 Oakwood’s Manager of Patient Relations and Service Excellence, Rhonda 

Jordan, is not aware of Defendant having a written policy precluding employees from 

granting a patient’s request for care based on race. (ECF No. 22, Ex. 5 at 9.) 

Nevertheless, Jordan recalled five or six prior occasions during her twelve year tenure 

at Oakwood when she learned of patients requesting a specific caregiver based on the 

worker’s protected class. (Id. at 6, 8-9.) According to Jordan, on those occasions, 

Oakwood denied the patient’s request. (Id. at 9.) Oakwood does have a written 

policy promoting “the practice of providing an equal employment opportunity for all 

persons” which also provides “that all employees have the right to work in an 

environment free from discrimination relating to the privileges of employment.” 

(ECF No. 21, Ex. 4 at Pg ID 113.) 

 At some point on October 8, the patient was transferred from the Emergency 

Room Department to the hospital’s fourth floor. Plaintiff was assigned to provide 

respiratory care on that floor during her overnight shift spanning October 8-9. At 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 5 of 17 Pg ID 288
6 

12:14 a.m. on October 9, a male nurse called Plaintiff to the patient’s room to do a 

breathing treatment. (ECF No. 22, Ex. 1 at 49.) After Plaintiff entered the patient’s 

room and began to introduce herself to him, the patient told Plaintiff that she had to 

leave and that she must not have read his chart. (Id. at 51.) When Plaintiff attempted 

to log onto the computer in the room to review his chart, the patient told her to leave 

the room. (Id. at 67.) 

Plaintiff summoned the nurse who called her to the room, told the nurse that 

she is not allowed in the room, and asked the nurse to find out why. (Id. at 67.) The 

nurse went into the patient’s room and, when he came back into the hallway, told 

Plaintiff that it is because she is black. (Id. at 67-78.) The nurse asked Plaintiff if 

there was someone else she could get to do the treatment, but no other respiratory 

therapist was available. (Id. at 69-71.) Plaintiff made a note in the patient’s Progress 

Report: “Was called to give patient breathing treatment. As I introduce myself to the 

patient, he replied that I must leave, because he will not have any treatment given by 

me because I was Black.” (ECF No. 22, Ex. 7.) 

Several hours later, the same nurse called Plaintiff to the patient’s room to do a 

breathing treatment. (Id., Ex. 1 at 50.) When Plaintiff arrived at the door to the 

patient’s room, she called to the nurse and told him that she was the respiratory 

therapist responding to the call and to ask the patient whether she could do the 

treatment. (Id. at 72.) When the nurse returned to Plaintiff, he told her that the patient 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 6 of 17 Pg ID 289
7 

would wait until shift change. (Id.) Plaintiff made a note in the patient’s Progress 

Report that he again refused to be treated by Plaintiff. (Id., Ex. 8.) 

During her shift, Plaintiff informed McShane about the patient’s refusal to be 

treated by Plaintiff because of her race. (Id., Ex. 1 at 99.) When Benscoter arrived at 

the hospital at around 5:30 on the morning of October 9, McShane approached 

Benscoter and told her that Plaintiff wanted to speak with her about the incident that 

occurred. (ECF No. 21, Ex. 3 at 16.) Before Benscoter could look for Plaintiff, 

however, Plaintiff found her and told her about the incident. (Id.; ECF No. 22, Ex. 1 

at 102) After Benscoter spoke with Plaintiff and met with her staff to get the morning 

shift started, she went to the fourth floor to report the incident to the Assistant Clinical 

Manager, Courtney Taylor. (ECF No. 21, Ex. 3 at 22-23; Ex. 6 at 14.) Benscoter also 

planned to contact Human Resources. (Id.) 

When Benscoter arrived at Taylor’s office, however, David Squires, a manager 

from Human Resources, already was there discussing the incident with Taylor. (Id.) 

Sometime after seven o’clock, Plaintiff had called Human Resources from her home 

and had spoken with Sherry Huffman. (ECF No. 22, Ex. 1 at 106.) During that 

conversation, Plaintiff told Huffman about the incident with the patient the night 

before. (Id. at 107.) Huffman apologized to Plaintiff, said that the request should 

never have been in the chart, and indicated that she would look into it and call 

Plaintiff later. (Id.) Squires informed Benscoter that he and Taylor were going to go 

and speak with the patient. (ECF No. 21, Ex. 3 at 24.) 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 7 of 17 Pg ID 290
8 

Squires in fact contacted Oakwood’s Patient Relations Representative, Rhonda 

Jordan, and asked that she speak with the patient and explain that Oakwood would not 

meet the patient’s request to not be treated by black employees. (Id., Ex. 6 at 7-8.) 

Jordan and Taylor then went to the patient’s room. (Id. at 14.) After introducing 

themselves, Jordan explained to the patient that the hospital could not grant his 

request to not have African American people care for him. (Id.) Jordan told the 

patient that Oakwood is a diverse hospital, that all of its employees are competent and 

professional equally, and that “if he wasn’t happy, he could choose his services 

elsewhere.” (Id.) At 11:58 a.m. on October 9, 2014, Taylor made a note in the 

patient’s record reflecting the discussion, writing: “Patient informed that hospital 

unable to grant request for racial choice of staff. Rhonda Jordan at bedside from guest 

relations.” (ECF No. 21, Ex. 13.) During her deposition, Jordan claimed that she and 

Taylor had met with the patient a couple of hours earlier than when the record entry 

was made, as she recalls doing so within an hour of her arrival at work. (Id., Ex. 6 at 

17.) 

Squires, Huffman, and Plaintiff’s director called Plaintiff at around 4:30 p.m. 

on October 9, after Jordan’s and Taylor’s conversation with the patient. (ECF No. 22, 

Ex. 1 at 108.) According to Plaintiff, they told her that they had someone meet with 

the patient and “let him know that that couldn’t go on.” (Id. at 110.) Plaintiff 

indicated that they also were apologetic, said it never should have happened, and 

asked Plaintiff if she was afraid of the patient and wanted a different assignment or 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 8 of 17 Pg ID 291
9 

wanted someone to go in the patient’s room with her to treat him. (Id. at 110-11.) 

Plaintiff responded that she was not afraid and that she did not need someone to go 

into the patient’s room with her if they had talked to him and he understood that they 

were all there to help him. (Id.) However, when Plaintiff arrived at work that 

evening, she learned that the patient had been moved to a different floor to which she 

was not assigned. (Id. at 111.) 

According to Benscoter, the patient was moved from the fourth floor (where 

Plaintiff was assigned) to the seventh floor, a surgical floor, because he was ultimately 

getting surgery at Oakwood. (ECF No. 21, Ex. 3 at 49.) The record fails to reflect 

when this surgery took place. According to Defendant’s Answers to Plaintiff’s 

Interrogatories, at least eleven African American caregivers treated the patient during 

his remaining stay at Oakwood. (Id., Ex. 14 at Pg ID 148.) 

III. Applicable Law and Analysis

 Plaintiff claims that Defendant’s response to the patient’s request to not be 

treated by African American caregivers during his stay at Oakwood constitutes race 

discrimination in violation of § 1981 and ELCRA.2

 As Plaintiff clarifies in response 

to Defendant’s motion, she is contending that Defendant violated § 1981 and the 

 

2 As Defendant points out, Plaintiff bypassed the Equal Employment Opportunity 

Commission and filed this lawsuit within two weeks of the incident. Because she 

did not file an EEOC complaint, she cannot maintain a cause of action under Title 

VII of the Civil Rights Act of 1964. See Young v. DaimlerChrysler Corp., 52 F. 

App’x 637, 639 (6th Cir. 2002) (citing 42 U.S.C. § 2000e-5(e)). 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 9 of 17 Pg ID 292
10 

ELCRA by allowing the assignment of its employees to care for the patient based on 

race. (ECF No. 22 at Pg ID 174-75.) 

Section 1981 “prohibits intentional race discrimination in the making and 

enforcing of contracts involving both public and private actors.” Amini v. Oberlin 

Coll., 440 F.3d 350, 358 (6th Cir. 2006) (citing Christian v. Wal-Mart Stores, Inc., 

252 F.3d 862, 867-68 (6th Cir. 2001)). “The statute’s protection extends to ‘the 

making, performance, modification, and termination of contracts, and the enjoyment 

of all benefits, privileges, terms, and conditions of the contractual relationship.’ ” Id. 

(quoting 42 U.S.C. § 1981(b)). “Section 1981 liability must be founded on purposeful 

discrimination.” Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999) 

(citing Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 389 (1982)). 

“[P]roof of discriminatory intent is essential” to prove a violation of the statute. Id. 

(citing Gen. Bldg. Contractors, 458 U.S. at 388). 

The ELCRA similarly prohibits “discriminat[ion] against an individual with 

respect to employment, compensation, or a term, condition, or privilege of 

employment, because of . . . race.” Mich. Comp. Laws § 37.2202(1)(a). Section 1981 

and the ELCRA are analyzed under the same framework. See Thompson v. City of 

Lansing, 410 F. App’x 922, 934 (6th Cir. 2011) (unpublished) (citing Jackson v. 

Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999) (“We review claims of alleged race 

discrimination brought under § 1981 and the [ELCRA] under the same standards as 

claims for race discrimination brought under Title VII”)). 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 10 of 17 Pg ID 293
11 

 A plaintiff claiming race discrimination under § 1981 must prove the 

following: 

that (1) [s]he belongs to an identifiable class of persons who are subject 

to discrimination based on their race; (2) the defendant intended to 

discriminate against h[er] on the basis of race; and (3) the defendant’s 

discriminatory conduct abridged a right enumerated in section 1981(a). 

Amini, 440 F.3d at 358. The defendant’s intent can be established by direct evidence 

or inferentially. Id. (citing Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir. 

1985)). Plaintiff argues that Gilhooly’s medical record entry restricted Oakwood’s 

African American employees from caring for the patient and that such “segregation in 

assignments is discrimination and unlawful whether it is for one hour, o[ne] shift, 24 

hours, days or weeks.” (ECF No. 22 at Pg Id 181.) The Court finds sufficient 

evidence from which a reasonable jury could agree with Plaintiff. 

As Jordan’s testimony reflects, Oakwood is likely to have, and has had in the 

past, patients who request care based on the race of Oakwood’s employees. There is 

no written policy instructing Oakwood’s employees to reject the racial preferences of 

its patients. Oakwood also does not conduct any training or otherwise advise its 

employees on how to handle such race-based requests. Apparently, Oakwood’s 

written equal employment policy is insufficient to advise its employees on how to 

confront such requests. Oakwood would lead this Court to believe that the failure to 

immediately address the patient’s request in this case resulted from the fact that the 

employees it assigns to handle such requests do not work during the overnight shifts. 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 11 of 17 Pg ID 294
12 

The patient was admitted to the hospital at approximately 1:43 p.m. (i.e., during the 

day shift), however, and Gilhooly recorded the patient’s race preference request in his 

medical chart at 3:46 p.m. (also during the day shift). (ECF No. 21, Ex. 8.) This 

raises a question for the jury as to whether Oakwood would have ever addressed the 

request but for Plaintiff’s complaints, or absent Plaintiff’s complaints, would have 

simply left the request in the patient’s chart to be followed by its employees.3

The result in this case, at least for one of Plaintiff’s shifts, was that the patient’s 

request was placed in his record and the patient believed the hospital was adhering to 

his request. Notably, Oakwood has not identified the nurse in charge to whom 

Gilhooly presented the patient’s request. Thus there is a question raised as to what 

Gilhooly in fact was told with respect to how Oakwood would handle the patient’s 

request. She certainly did not write in the patient’s chart that the request would not be 

granted, which Gilhooly testified she believes she would have done had this been the 

instruction she was given. There also is a question of fact as to what credence the 

male nurse gave to the notation in the patient’s record, as the record reflects that he 

 

3 Notably, a jury reasonably could conclude that if Jordan alone has become aware 

of at least six instances of patients making race preference requests, such incidents 

occur more frequently throughout Oakwood’s various locations. The record does 

not reflect how often such requests are noted in patients’ records, are not 

addressed, and therefore are left to impact the assignment of caregivers to those 

patients. Clearly it would be a burdensome task to make this determination. 

Nevertheless, a jury reasonably could conclude that patients’ race-preference 

requests are effectively being granted by Defendant as a result of its instruction to 

their employees to include those requests in the patient’s record (as Gilhooly was 

instructed) and its failure to train employees to address (i.e., deny) such requests. 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 12 of 17 Pg ID 295
13 

asked Plaintiff to find someone else (i.e., a Caucasian respiratory therapist) to treat the 

patient. Finally, as the record fails to reflect when the patient actually underwent 

surgery, a question remains as to whether the patient was moved, when he was (i.e., 

before Plaintiff returned to work), to avoid Plaintiff being the respiratory therapist 

called to perform his needed breathing treatments. 

In short, a reasonable jury could find that Defendant’s failure to train its 

employees or provide a policy for handling race-based requests by patients results in 

those requests being placed in the patient’s charts and honored unless and until an 

employee who is prevented from doing her job as a result of such a request complains. 

In other words, a reasonable jury could find that by recording patients’ racepreference requests in the patients’ record and not training its employees to reject 

those requests, Defendant purposefully allows for the assignment of its employees’ 

duties based on their race. As such, this Court finds at least two of the cases cited by 

Plaintiff instructive in deciding that Plaintiff presents sufficient evidence to survive 

Defendant’s summary judgment motion: Chaney v. Plainfield Healthcare Center, 612 

F.3d 908 (7th Cir. 2010) and Patterson v. UPMC South Hills Health System Home 

Health, LP, No. 03-89, 2005 U.S. Dist. LEXIS 47610 (W.D. Pa. 2005) (unpublished) 

(ECF No. 22, Ex. 11). Based on those cases, the Court finds that Plaintiff has 

presented sufficient evidence to establish the elements of her § 1981 and ELCRA 

claims. 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 13 of 17 Pg ID 296
14 

Defendant nevertheless contends that Plaintiff’s claims fail because she did not 

suffer an adverse action. Defendant argues that “[a]n employment action must 

amount to ‘a materially adverse change’ in the terms or conditions of employment to 

be actionable.” (ECF No. 21 at Pg ID 90, quoting Kocsis v. Multi-Care Mgmt., Inc., 

973 F.3d 876, 885 (6th Cir. 1996); Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 

(6th Cir. 2004).) According to Defendant, “this one patient encounter did not alter 

Plaintiff’s terms and conditions of employment.” (Id.) This is because: 

Plaintiff has continued to treat patients of various races and 

ethnicities. . . . Her hours were not cut. . . . Her pay was not 

reduced. . . . She was not demoted or disciplined. Indeed, she continues 

to work in the same department of the hospital, treats patients, with the 

same title and with the same supervisor. 

(Id., citing Ex. 11.) As stated earlier, Plaintiff maintains that a “segregation in 

assignments is discrimination and unlawful whether it is for one hour, o[ne] shift, 24 

hours, days or weeks.” (ECF No. 22 at Pg Id 177, 181.) 

As an initial matter, this Court does not believe that the existence of an 

“adverse action”-- as typically defined in the case law-- is necessarily an element of a 

plaintiff’s § 1981 claim. As stated before, to prove a violation of the statute, a 

plaintiff must show only that: “(1) [s]he belongs to an identifiable class of persons 

who are subject to discrimination based on their race; (2) the defendant intended to 

discriminate against h[er] on the basis of race; and (3) the defendant’s discriminatory 

conduct abridged a right enumerated in section 1981(a).” Amini, 440 F.3d at 358 

(emphasis added). To prove the third element, the plaintiff need only show that a 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 14 of 17 Pg ID 297
15 

right enumerated under § 1981 was abridged as a result of the defendant’s 

discriminatory conduct.4

 Section 1981 protects a non-white person’s “right . . . to 

make and enforce contracts . . . as is enjoyed by white citizens” and defines the right 

“to make and enforce contracts” to include “the making, performance, modification, 

and termination of contracts, and the enjoyment of all benefits, privileges, terms, and 

conditions of the contractual relationship.” 42 U.S.C. § 1981. Id. § 1981(b). A right 

protected under § 1981 may be abridged without necessarily causing a “materially 

adverse change in the terms of [the plaintiff’s] employment,” as that term has been 

defined.5

 See Kocsis, 97 F.3d at 886. 

Furthermore, this Court believes that even a temporary or brief (i.e. de minimis) 

abridgement of a plaintiff’s rights under § 1981 is actionable. As one district judge in 

the District of Maryland expressed in an instructive case, 

Section 1981 violations need not be extended or unmitigated to qualify 

the plaintiff for damages. Although the length or nature of the violation 

may affect the plaintiff’s award, the fact that an act of contractual 

discrimination was short or de minimis does not make it any less a 

 

4 The existence of an “adverse action”-- as that term is typically defined-- appears 

to become relevant only with respect to the plaintiff’s proof of the defendant’s 

intent to discriminate against the plaintiff on the basis of race, and only if the 

plaintiff needs to rely on the burden-shifting McDonnell Douglas framework to 

prove her claim. See Amini, 440 F.3d at 358; see also White v. Baxter Healthcare 

Corp., 533 F.3d 381, 391 (6th Cir. 2008). 5 As the Supreme Court has provided, an adverse employment action typically 

involves “a significant change in employment status, such as hiring, firing, failing 

to promote, reassignment with significant different responsibilities, or a decision 

causing a significant change in benefits. Burlington Indus., Inc. v. Ellerth, 524 

U.S. 742, 761 (1998). 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 15 of 17 Pg ID 298
16 

violation. Indeed, “[c]ivil rights are founded not on a relativist calculus 

of discriminatory behavior but on the principle that deprivations of rights 

resulting from racial animus are unlawful.” 

Williams v. Cloverland Farms Dairy, Inc., 78 F. Supp. 2d 479, 485-86 (D. Md. 1999) 

(quoting Yates v. Hagerstown Lodge No. 212 Loyal Order of Moose, 878 F. Supp. 

788, 796 (D. Md. 1995)); see also Patterson, 2005 WL 6720844, at *9 (finding 

support for the plaintiff’s § 1981 claim arising from the notation in a patient’s record 

of “no black RNs”, finding “it . . . clear that, even in the absence of a monetary loss, 

job assignments based on race constitute adverse employment actions because such 

assignments affect the terms and conditions of employment.”). The Court further 

believes that it is a question for the jury as to whether Plaintiff’s one encounter with a 

racist patient and, perhaps more importantly, Defendant’s response to the patient, 

were sufficient to alter the terms and conditions of her employment. 

The Sixth Circuit’s unpublished decision in Crane v. Mary Free Bed 

Rehabilitation Hospital, -- F. App’x --, 2015 WL 8593471 (2015), does not otherwise 

lead this Court to conclude that Plaintiff’s claims fail. There, the Sixth Circuit upheld 

the grant of summary judgment to the defendant on the plaintiff’s § 1981 claim 

because, in addition to suffering no material change in the terms or conditions of her 

employment, the court found that “[a]ny potential exclusion from the patient’s room 

was not a removal of responsibilities because [the plaintiff] was not responsible for 

direct patient care.” Id. at *5. Plaintiff, in comparison, was responsible for direct 

patient care and, on two occasions, was actually excluded from a patient’s room and 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 16 of 17 Pg ID 299
17 

removed from her responsibilities for caring for the patient. Even if Crane instructs 

that the infringement on a plaintiff’s § 1981 rights must be more than de minimis to 

survive summary judgment, viewing the facts in a light most favorable to Plaintiff, the 

Court believes a reasonable jury could find that this incident had more than an 

insignificant impact on the terms and conditions of her employment.

 For these reasons, the Court finds sufficient factual disputes to render 

Plaintiff’s § 1981 and ELCRA claims better resolved by a jury than a judge. 

Accordingly, 

IT IS ORDERED, that Defendant’s motion for summary judgment is 

DENIED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: March 16, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, March 16, 2016, by electronic and/or U.S. 

First Class mail. 

 s/ Richard Loury 

 Case Manager 

4:14-cv-14053-LVP-RSW Doc # 28 Filed 03/16/16 Pg 17 of 17 Pg ID 300