Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—S.D. Ohio: Black nurse’s bias, retaliation claims over non-selection for an APP position advance to trial, (Sep 22, 2026)

By Kathleen Kapusta, J.D.

The nurse claimed that between 2018 and 2024, she applied for dozens of Advanced Practice Provider positions with the medical center but was never selected.

Allowing a Black nurse to proceed to trial on her claim her university medical center employer discriminated against her when it failed to select her for an advanced practice provider (APP) position, and instead selected a white candidate, a federal court in Ohio found the two candidates were similarly situated and the nurse may have been more qualified. She also presented evidence that the medical center’s reasons for not hiring her were factually false and shifted over time. Her Title VII retaliation claim also survived the medical center’s summary judgment motion (Solis v. The Ohio State University Wexner Medical Center, No. 2:25-cv-278 (S.D. Ohio Sept. 21, 2026)).

The plaintiff began working as a staff nurse for the medical center in 2011 and later became licensed as an Advanced Practice Registered Nurse with a certification in Family Medical Care. She claimed she applied for multiple APP positions at the medical center between 2018 and 2024 but did not receive a single offer. She ultimately filed discrimination charges with the Ohio Civil Rights Commission (OCRC).

In order to obtain the necessary hours to maintain her license, she began working part-time as a nurse practitioner at another hospital while continuing to work part-time at the medical center.

Prior lawsuit. In April 2023, the nurse sued the medical center for race discrimination. The district court granted summary judgment to her employer, which was affirmed on appeal.

2024 application. In May 2024, the nurse applied for an Addiction Medicine APP position at the medical center. Although she was among the seven candidates selected for an interview, she was not advanced to the next round despite her 13 months of experience in addiction medicine. Instead, the position was awarded to a white candidate whose resume did not specify any prior addiction medicine experience. The nurse again filed additional charges with the OCRC and sued the medical center alleging race discrimination in violation of Title VII.

Similarly situated. At issue in the nurse’s prima facie case was whether her qualifications were similarly situated to those of the selectee. Here, said the court, a reasonable juror could find that the two candidates were similarly situated, if not that the nurse was more qualified. Both possessed the relevant education and had experience as APPs. And while the selectee had more APP experience and conducted opioid use disorder research, the nurse had concrete experience in providing addiction medicine treatment. Thus, the court found that she satisfied this element of her prima facie case.

In response, the medical center offered a legitimate, nondiscriminatory reason for not selecting the nurse—the selectee had a doctoral nursing degree, five years of APP experience, and had conducted extensive research in addiction medicine.

Pretext. To show pretext, the nurse argued that the medical center’s reasons for not hiring her, including its claim in the OCRS submission that she did not provide her addiction medicine experience during the interview, were factually false. After concluding that the OCRC position statement was not inadmissible hearsay, the court agreed that the medical center’s statement was false. While the nurse might have supplemented her addiction medicine experience with the hiring manager following the interview, she testified that she did inform him and another APP of her experience setting up addiction medicine services at the hospital where she also worked and they both testified that she discussed her addiction medicine experience during the interview.

Nor was it true, as the medical center stated in the OCRS letter, that the selectee had an “Adult Gerontology Acute Care Nurse Practitioner certification.” It subsequently claimed this was a mere typological error as it was actually referring to another candidate who did possess the certification. The court, however, declined to credit this contention given that the “error” appeared in an official position statement to the OCRC as well as “the attention to detail expected in preparing such legal documents.”

Shifting rationales. Further, said the court, a reasonable juror could find the medical center shifted its rationale. Initially, the hiring manager told the nurse she was selected from the initial pool of candidates because she possessed specific addiction medicine experience. He then told her she was not selected because there were candidates who had more APP experience in addiction medicine than her; there were candidates with more experience specifically starting and building an addiction medicine IP team; and there were more candidates with clinical/academic research directly related to the addiction medicine population.

Then, in the OCRS letter, the medical center stated that the nurse did not get the job because the selectee’s experience was superior to her experience; she had limited nursing experience in addiction medicine; and she did not provide her experience in this area during the interview. The letter also stated that the selectee had an Adult Gerontology Acute Care Nurse Practitioner certification; had extensive research in addiction medicine; and her nursing experience was a better fit for the position.

During litigation, the court observed, the medical center echoed some of these reasons, added new reasons, and eliminated reasons cited to the OCRC. Indeed, for the first time, it claimed that the nurse did not interview well. It also no longer claimed the selectee had the Adult Gerontology Acute Care Nurse Practitioner certification or that the nurse did not mention her addiction medicine experience during the interview. Based on this, the court found genuine issues of material fact as to pretext.

Statistical evidence. The nurse also pointed to a statistical analysis conducted by a Ph.D. who performed a Chi-Square statistical test which indicated that the medical center employed only 49 African-American APPs, whereas 86 Black APPs were expected to be employed based on the relevant labor market. According to the medical center, this evidence did not eliminate the most common nondiscriminatory explanation for the nurse’s non-selection—she was inferior to the other candidates.

Finding a genuine issue of material fact, the court noted that in the Sixth Circuit, statistical analysis must be based on the relevant labor market and there is no requirement that an expert must look at the underlying materials of the applicants in the specific case for the analysis to be relevant. Nor was the nurse required to present a statistical analysis that overcomes all critiques. And while statistical evidence is not probative of pretext on its own, the court found the nurse’s evidence, when considered together with the other pretext evidence, created a genuine issue of fact as to whether the medical center’s proffered reasons were pretextual. Accordingly, it denied summary judgment on her race discrimination claim.

Retaliation. As to the nurse’s retaliation claim, the medical center argued that her protected conduct in 2022—filing charges with the OCRC and the EEOC—was too temporally attenuated from the 2024 non-selection decision. Disagreeing, the court noted that the nurse filed her first lawsuit in April 2023 and filed her appeal of that lawsuit in March 2024, which was still pending when she applied for the APP position in May 2024. Thus, the court found she was engaged in protected activity until the appeal was affirmed in October 2024, which was well after the alleged retaliatory conduct occurred. Further, only two months had elapsed between the initiation of the appeal and her non-selection for the position.

Moreover, said the court, her interview was the first opportunity for the hiring manager to retaliate against her after learning of her charges of discrimination, as it was the first contact she had with him since 2021. The court also found it telling that the hiring manager, who was aware of the nurse’s litigation, did not rank her for the initial interview process while the APP who was also involved in the hiring process, and who was unaware of her protected activity, ranked her as a candidate worthy of an initial interview. The nurse also claimed the hiring manager was abrupt, curt, and appeared disinterested during the 2024 interview.

Finding for the same reasons already discussed that the nurse established pretext for her retaliation claim, the court also denied summary against this claim as well.

The case is No. 2:25-cv-278.

Judge: Marbley, A.

Attorneys: Joshua R. Cohen (Cohen Rosenthal & Kramer) for Stephanie Solis. Drew Corner Piersall (Littler Mendelson) for The Ohio State University Wexner Medical Center.

Companies: The Ohio State University Wexner Medical Center

Cases: RaceDiscrimination Discrimination Retaliation EvidenceDiscovery OhioNews