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WILBORN v. PRIMARY CARE SPECIALISTS

September 23, 1994

SANDRA L. WILBORN, Plaintiff,
v.
PRIMARY CARE SPECIALISTS, LTD., KAREN ROSE, and ROBERT TETIK, M.D., Defendants.


Castillo


The opinion of the court was delivered by: RUBEN CASTILLO

On August 25, 1994, the Court held a bench trial in this matter. Thereafter, the Court considered the written closing arguments submitted by each party. The Court hereby enters the following Findings of Fact and Conclusions of Law. The Findings of Fact are based upon consideration of all the admissible evidence as well as this Court's assessment of the credibility of the trial witnesses.

 FINDINGS OF FACT

 1. On November 4, 1991, Plaintiff Sandra Wilborn ("Wilborn") was hired by Primary Care Specialists, Ltd. ("Primary Care") to serve as a Marketing Representative. Ms. Wilborn is of African-American descent.

 2. Defendant Primary Care, during all relevant times, operated a health care clinic under the name of First Care Clinic ("the Clinic") at 1158 W. Taylor Street, Chicago, Illinois.

 3. Ms. Wilborn executed a written employment agreement with Primary Care on November 4, 1991. (Plaintiff's Ex. A). Pursuant to this agreement, Ms. Wilborn's annual compensation was $ 35,000 per year with an annual bonus equal to five percent (5%) of Primary Care's net increase in gross receipts for each contract year. The agreement was of unlimited duration subject to its termination provisions. This agreement was signed by Primary Care's President -- Dr. Robert D. Tetik, a named non-minority defendant in this case.

 4. Paragraph 9 of Ms. Wilborn's employment agreement allowed Primary Care to terminate her employment upon 7 days notice for cause and upon 30 days notice without cause.

 5. During her employment at Primary Care, Ms. Wilborn was able to successfully solicit new clients and expand the business of the Clinic.

 6. Plaintiff's supervisor was Dr. Robert Knapp, the Clinic's Medical Director, who is deceased and whose testimony was not available at trial.

 7. Shortly after Ms. Wilborn started working at Primary Care, Ms. Karen Rose (a named non-minority defendant in this case) was hired to serve as the Office Manager of Primary Care. Although Ms. Rose had no apparent official supervisory authority over Ms. Wilborn, Ms. Wilborn did report to Ms. Rose with respect to "client service" issues.

 8. On November 27, 1991, Ms. Rose distributed a list of forty-three (43) racially derogatory jokes about African-Americans to Ms. Wilborn. (Plaintiff's Ex. J). Thereafter, Ms. Wilborn complained about this matter to Dr. Robert Tetik and faxed a copy of these jokes to Dr. Tetik. Ms. Wilborn also complained about this matter to the Clinic's Medical Director, Dr. Robert Knapp.

 9. Ms. Rose was formally disciplined for the November 27, 1991 incident and was the subject of a formal "Behavior/Performance Counseling Report." (Defendants' Ex. 3). Primary Care handled personnel issues through a part-time consultant, Sue Waxstein, who testified that Ms. Rose was warned never to repeat this incident. Ms. Waxstein is employed as the Director of Human Resources for a counseling company called EMSCO Management Services. Ms. Waxstein's report stated that Ms. Rose's behavior was "most inappropriate behavior for a supervisor and showed very poor judgment." (Defendants' Ex. 3). Nevertheless, Primary Care allowed Ms. Rose and Ms. Wilborn to work together without any clear lines of authority between their respective Marketing Representative and Office Manager positions.

 10. From November 28, 1991 until January 2, 1992, Ms. Wilborn worked at Primary Care without incident.

 11. On January 3, 1992, Ms. Wilborn and Ms. Rose had a disagreement about client relations issues involving the Bulk Mail Center. These issues were documented in a memorandum sent by Ms. Wilborn to Dr. Tetik on January 7, 1992. (Plaintiff's Ex. K).

 12. The January 3, 1992 incident forms the fundamental basis for events which gave rise to this lawsuit. The incident was the subject of a formal "Behavior/Performance Counseling Report" which was prepared by Ms. Waxstein and issued to Ms. Wilborn. Although the dispute involved both Ms. Rose and Ms. Wilborn, only Ms. Wilborn was issued a counseling report. The report indicated that Ms. Wilborn had lost her temper and had raised her voice in front of patients and staff. The report further stated that "the staff were concerned with [Ms. Wilborn's] behavior and approached Dr. Polk and Karen Rose with their concerns." (Plaintiff's Ex. C). Despite the fact that Ms. Wilborn had never experienced any prior behavioral problems at the Clinic, the report concluded that "future behavioral problems will lead to further disciplinary actions and possible termination." (Id.).

 13. No probative evidence was presented at trial which showed that Ms. Rose was disciplined in any way for her role in the January 3, 1992 incident despite the fact that Primary Care was well aware of the prior November 27, 1991 incident involving Ms. Rose and Ms. Wilborn, in which Ms. Rose "showed very poor judgment." (Defendants' Ex. 3).

 14. On January 10, 1992, Ms. Wilborn met with her supervisor Dr. Knapp and Sue Waxstein to discuss the January 7, 1992 "Behavior/Performance Counseling Report" which related to the January 3, 1992 incident. This meeting is documented in a January 10, 1992 memorandum prepared by Ms. Waxstein. (Plaintiff's Ex. D).

 16. Ms. Wilborn's expressed desire to file a discrimination suit is well documented in Ms. Waxstein's January 10, 1992 memorandum. (Plaintiff's Ex. D). This memo indicated:

 
[Ms. Wilborn] agreed to sign the Counseling Report, but stated several times that she was planning to immediately file a discrimination suit against us. I explained that a reprimand for arguing with a co-worker in front of others is not an act of discrimination.
 
Efforts were continually made by [Ms. Wilborn] to focus the discussion on other issues, i.e., co-workers' incompetence, personality conflicts, and lack of communication. She did finally acknowledge her inappropriate behavior; she again stated she would file a discrimination suit against us in any case and left.

 (Id.)

 17. Ms. Wilborn immediately left the January 10, 1992 meeting with Dr. Knapp and Ms. Waxstein and attempted to file a complaint with the Illinois Department of Human Rights. However, by the time she reached the Commission's offices it was 4:30 p.m. and no one was available to process her complaint. The next day, Ms. Wilborn apparently prepared an intake worksheet. A formal discrimination charge was eventually prepared by the Department of Human Rights on or about January 28, 1992. (Plaintiff's Ex. L). Ms. ...


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