Labor & Employment Law Daily Wrap Up, RETALIATION—E.D. Mich.: Black security assistants at psychiatric hospital, fired after patient altercation, advance retaliation claims, (Apr 21, 2026)

By Kathleen Kapusta, J.D.

Both employees had a history of filing complaints about racial discrimination and retaliation, including complaints of systemic racial issues and implicit bias.

Two Black Forensic Security Assistants (FSA) at a psychiatric hospital who were fired after one was involved in a physical encounter with a patient that the other allegedly failed to fully report can advance to trial on their Title VII retaliation claims, a federal court in Michigan ruled, finding evidence that the stated reasons for their terminations—abuse and neglect—were pretextual. The race discrimination claim of the assistant involved in the altercation failed, however, as he was unable to show a white FSA engaged in comparable conduct and was not fired (Harrison v. Michigan Department of Health and Human Services, No. 22-12034 (E.D. Mich. Apr. 17, 2026)).

Physical encounter. In August 2020, the FSAs were approached by a patient who cursed at them, used racial slurs, challenged the male FSA to a fight, and then spit at him. The male FSA immediately lunged at the patient and brought him to the floor where other staff helped to restrain him and take him to a seclusion room. A nurse who examined the patient later that day noted only a bruised right elbow and forearm and scabbed abrasions on his right knuckles.

Suspected abuse. Two days later, the director of the forensic psychiatric center reviewed the video of the incident and reported suspected patient abuse to the Office of Recipient Rights (ORR) and the state police. The hospital director also referred the incident to ORR and the male FSA was suspended pending the investigation. Six days after that, the patient was diagnosed with closed fractures of four ribs on his right side and a concussion without loss of consciousness. In December, the female FSA was also suspended.

Prior complaints. Both FSAs had previously complained of race discrimination and retaliation. The female FSA filed EEOC charges in 2017 and 2018 and in April 2020, she complained to the Michigan Civil Service Commission about systemic racial issues, including a manager asking during a meeting “why are there so many Black people in here?” In June 2020, she complained to the hospital director about ongoing systemic racism and in September, she complained about implicit bias and disparate treatment, referencing the male FSA’s suspension. She also forwarded the complaint to the Michigan governor.

The male FSA complained in 2017 about discriminatory harassment and filed EEOC charges in 2020 complaining about disparate treatment. In September 2020, he forwarded to the governor an email in which a coworker complained that the male FSA had been suspended while a white FSA had been praised after restraining a patient.

Abuse. In September, ORR concluded that the male FSA’s conduct constituted Abuse I, which is defined as an “act... by an employee... that caused or contributed to... serious physical harm to a recipient.” In the findings section, however, the report stated that the FSA “committed a nonaccidental act that caused or contributed to nonserious physical harm to a recipient.” Two days later, the hospital director issued a summary report stating that the FSA’s conduct caused serious physical harm to the patient. The ORR also found that the female FSA committed Neglect 1 by failing to fully report the incident.

Fired. Both FSAs were subsequently fired. After the male FSA’s termination, the HR director issued a memo stating that, “due to a typing error,” the director’s summary report had been amended to change “non-serious physical harm” to “serious physical harm.”

Retaliation. Addressing the FSAs’ claims they suffered retaliation as a result of their prior complaints of discrimination, the court noted that their prior complaints to hospital leadership and to the governor constituted protected activity under Title VII’s opposition clause. Further, the hospital did not dispute knowing about these complaints or terminating the FSAs’ employment.

As to evidence of a causal connection between their terminations and the protected activity, the court noted that as to the male FSA, he sent complaints on September 1, 2020, and was fired just over a month later, which was sufficient to support an inference of causation. While he had been suspended prior to September 1, and the investigation was already underway, the termination decision had not yet been made and this, said the court, was sufficient to present an inference that events after the September 1 complaints influenced the pace and course of the disciplinary process.

Regarding the female FSA, she also complained on September 1 but was not fired until December 14, making the temporal proximity weaker. The court, however, noted evidence that at least three other staff members witnessed the incident with the patient and the male FSA and did not report it, yet they were never subject to the same ORR charge. Taken together, said the court, this was enough to create a genuine dispute on causation.

Pretext. Because the hospital proffered legitimate, nonretaliatory reasons for the dismissals—ORR’s determination that their conduct constituted Abuse 1 and Neglect 1—the court turned to evidence of pretext, including as to the male FSA, a conspicuous inconsistency in the ORR materials. Specifically, while ORR classified his conduct as Abuse I, which turned on serious physical harm, the findings section of the report stated that he caused or contributed to nonserious physical harm.

Then, after his termination, HR issued a memo stating that the director’s summary report had been amended, “due to a typing error,” to change “non-serious physical harm” to “serious physical harm.” A reasonable jury, said the court, “could regard that sequence as evidence of post hoc revision rather than mere clerical correction.”

Turning to the female FSA, the court noted that she submitted an incident report but was fired for “failure to report” while other witnesses who did not submit incident reports were apparently not disciplined at all. Pointing to evidence indicating management knew that other staff members had witnessed the incident without reporting it, the court found a jury could conclude the FSA was singled out. Therefore, the court denied summary judgment against their retaliation claims.

Race discrimination. In support of his Title VII race discrimination claim, the male FSA argued that a white FSA engaged in comparable conduct and was not fired. After reviewing the videos of the two incidents, however, the court found no reasonable jury could find the two restraint events displayed the same FSA conduct. The plaintiff, after being spat at, charged the patient, wrapped his arms around him, and drove him to the floor with enough force to knock off his shoes. In contrast, the white FSA grabbed a patient around his waist after the patient tried to physically force his way past him. He then brought the patient down in a visibly more controlled manner.

In short, said the court, “the videos do not support an inference that the [male FSA] and his alleged comparator ‘engaged in the same conduct without differentiating or mitigating circumstances’ to distinguish the conduct or the employer’s treatment of it.” Accordingly, the court granted summary judgment against this claim.

The case is No. 22-12034.

Judge: Kumar, S.

Attorneys: Eric I. Frankie (Law Office of Eric I. Frankie) for Antonio Harrison. Breanna J. Listermann, Michigan Department of the Attorney General, for Michigan Department of Health and Human Services.

Cases: Retaliation RaceDiscrimination Discrimination Discharge PublicEmployees MichiganNews