Speech Pathologist’s Race Harassment Claim Advances

Takeaway: Because the anti-discrimination laws applicable to federal agencies prohibit discrimination in making an employment decision, the McDonnell Douglas proof framework did not apply. Instead, if any improper consideration influences an agency’s employment decision, an employee can recover even if the same decision would have been made absent discrimination. Based on this analysis, the 11th U.S. Circuit Court of Appeals reinstated a federal employee’s claims that her agency considered her race in harassing and discharging her.

A Black woman who worked as a speech pathologist for the traumatic brain injury clinic at Martin Army Hospital from 2010 to 2017 alleged mistreatment from her supervisors and colleagues.

The plaintiff was the only speech pathologist and the only Black female provider at the clinic, which treated active-duty military members and their families for mild and moderate head injuries. She alleged that during her time at the clinic, white patients were diverted from her care, complaints were drummed up about her to justify mistreatment, and she experienced other race-based harassment.

The plaintiff claimed that a clinic physician referred patients for neuropsychological testing, then a neuropsychologist referred some of them to her for speech language therapy. But after white patients had an initial consultation with her, the physician often asserted that they had complained about her. He used these complaints to justify referring them to a white male occupational therapist at the clinic or to off-base providers. The neuropsychologist and the plaintiff complained to her supervisor about this practice.

The plaintiff alleged that, to justify this patient-diversion scheme, the physician and a nurse care manager encouraged white male patients to complain about her. She claimed that the physician told a patient that she had “angry Black woman syndrome” and said that the patient had to be careful with her. No patient ever used the clinic’s formal process to lodge a complaint. Still, the informal complaints led to a noticeable decrease in her patient load compared to those of her colleagues.

The plaintiff had created a cognitive skills-building group, which was going to be transferred to another provider. In discussing the transition, the occupational therapist belittled the work required to manage the group by saying “a monkey could do that job.” In another incident, the plaintiff’s supervisor looked at a photo of her children and asked if they all had the same father.

The plaintiff filed five complaints with the U.S. Equal Employment Opportunity Commission (EEOC) during her employment. In April 2017, she complained that the nurse manager wrote a negative and false note about her in a patient’s chart. She emailed the chart to her military supervisors, a civilian Health Insurance Portability and Accountability Act (HIPAA) officer, and her union representative (a nonhospital employee). She also brought the medical information to her congressman’s office to complain about the note, and the office made copies of it. She thought this was not a violation of patient privacy because it was a whistleblower complaint.

However, the plaintiff’s supervisor decided that this conduct violated the patient privacy provisions of HIPAA and recommended that she be removed from federal service. In response, the plaintiff filed her fifth EEOC complaint. She was discharged and chose to sue, alleging race-based disparate treatment, retaliation, a retaliatory hostile work environment, and a racially hostile work environment. The secretary of the Army moved for summary judgment on all claims, which was granted.

The plaintiff appealed. Regarding her race discrimination claim, the 11th U.S. Circuit Court of Appeals reasoned that the law requires all staff actions in military departments be made free from discrimination. This does not require that the plaintiff prove that discrimination caused her termination—rather, only that discrimination tainted the decision-making process. However, if discrimination affected the decision but did not cause the termination, she cannot obtain reinstatement or recover back pay.

The court found that the plaintiff presented sufficient evidence that her supervisor impermissibly considered her race and sufficiently demonstrated racial harassment to support her hostile work environment claim. As a result, the 11th Circuit reversed summary judgment on the plaintiff’s disparate treatment and hostile work environment claims.

Buckley v. Secretary of the Army, 11th Cir., No. 21-12332 (March 28, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.