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PEREZ v. NORWEGIAN-AMERICAN HOSP.

February 4, 2003

VALENTINA PEREZ, PLAINTIFF
V.
NORWEGIAN-AMERICAN HOSPITAL, IVAN RIVERA, AND STEVE DAHL DEFENDANTS.



The opinion of the court was delivered by: Norgle, District Judge

OPINION AND ORDER

Before the court is Defendants' motion for summary judgment. For the following reasons, the motion is granted.

I. BACKGROUND*fn1

Valentina Perez ("Perez") filed suit against her former employer, Norwegian-American Hospital ("NAH"), and former co-workers, Ivan Rivera ("Rivera") and Steve Dahl ("Dahl"), based on events occurring between January and September of 2000. Specifically, Perez' complaint contains five counts: Count I, sexual discrimination under 42 U.S.C. § 1981(a); Count II, failure to promote under 42 U.S.C. § 2000e-2; Count III, retaliation under 42 U.S.C. § 2000e-3; Count IV, state law intentional battery; and Count V, state law intentional infliction of emotional distress. The distillate of Perez' federal claims, which are brought solely against NAH, are that she had been discriminated against because of her gender, alleging a mosaic of incidents in support of those claims.

The Department of Public Security ("Security Department") at NAH is responsible for security at the hospital. The Security Department is organized in a para-militaristic hierarchy. Until June 15, 2000, the highest position within the Security Department of NAH was the Director of Security. The Director of Security reported directly to the Chief Operating Officer of NAH, Mary Toma ("Toma"). At all times pertinent to this matter, James Byrnes ("Byrnes") held the position of Director of Security. Byrnes resigned in June of 2000, and thereafter NAH reorganized the structure of the Security Department. The position of Director of Security was eliminated and replaced with the position of Lieutenant. As implemented, the newly created position of Lieutenant reported directly to Toma, and was responsible for general oversight of the Security Department. The Lieutenant position was awarded to Rivera in July 2000.*fn2

The remainder of this organizational hierarchy consisted of Sergeants, Corporals*fn3, and security officers. The security officers were assigned to various posts during their shifts.*fn4 These security officers were immediately supervised by Corporals, who were the individuals on a shift that would assume responsibility in a Sergeant's absence. The Sergeants had general oversight and responsibility of the shifts to which they were assigned, and in addition, scheduled the work shifts of security officers, relieved security officers during break times, and were also responsible for checking the mechanical security systems in place at NAN.

In July of 1989, Perez was hired by NAN as a security officer in the Security Department. In 1993, Perez was promoted to Officer in Charge.*fn5 Then in late 1994 or early 1995, Perez was promoted to the position of Sergeant. Perez' formal evaluations indicate that she performed her duties well throughout this time.

In 1997, Dahl, a DuPage County Sheriff Deputy, began working as a consultant to NAN, in response to gang-related crime problems at the hospital. Dahl's responsibilities included hiring additional off-duty Chicago Police Department officers to serve as armed security guards for NAH. Dahl and these armed security guards worked in the emergency room during the hours of 6:00 PM to 2:00 AM. These off-duty police officers operated under a separate chain of command from the unarmed security guards.

The genesis of Perez' sexual discrimination claims can be traced to an incident that is alleged to have occurred on January 10, 2000. On that date, Perez alleges that as she exited an elevator, Dahl hit her on the buttocks with a schedule book that he was carrying. Dahl was waiting to enter the elevator with Byrnes when this incident is alleged to have occurred. Perez indicated that she suffered pain as a result of the contact, but "self-treated it," and remained at work for the duration of her shift.

That very day, Perez complained to Byrnes of the incident. The following day, Perez also reported the incident to the Director of Human Resources, Russ Dickow ("Dickow"). In her response to defendants' Local Rule 56.1 statement, Perez states: "Ms. Perez denies that Norwegian conducted any meeting concerning her incident report at any time." (Pl.'s Resp. to Defs.' 56.1 statement ¶ 47.) However, in her deposition, Perez indicates that she did meet with Dickow and Byrnes, and further states that Byrnes indicated that he did not observe the alleged incident. (See Pl.'s Dep. pg. 176-78) Thus, it is undisputed that on January 28, 2000, Perez, Byrnes and Dickow met to discuss the incident. At this meeting, Byrnes indicated that he did not see the alleged incident and that Dahl denied hitting Perez. Despite his denial, Dahl was talked to about the matter and told to act in a professional manner.

On July 27, 2000, Rivera called Perez to a meeting to discuss her performance, and areas of concern. Rivera drafted a memo that detailed his areas of concern by listing numerous infractions which Perez allegedly committed. As a result of this meeting, Rivera determined that Perez would be transferred to the night shift. Rivera indicated that the reasons for the transfer were because the shift that Perez supervised had the most problems, to allow Perez to improve her performance, and to balance the shifts. Perez alleges that the infractions, which Rivera documented, are false and that they were fabricated solely to discipline her for filing her internal complaint against Dahl. However, once again, Perez admits that she committed a number of the infractions which were detailed in Rivera's memo.

Perez filed three separate claims of discrimination with the Equal Employment Opportunity Commission ("EEOC"). The first claim was filed on July 25, 2000, and contained the allegations of the January 10, 2000 incident, the rumors of her imminent demotion or termination, and the denial of an opportunity for a promotion. The second claim was filed on August 4, 2000, and contained allegations of being retaliated against for filing the first EEOC claim; specifically, that two days after she filed the initial EEOC claim she was transferred to another shift under the supervision of a lower ranking employee. However, it is undisputed that NAH first learned of the EEOC charges on August 9, 2000. The third claim was filed on January 24, 2001, and reiterated the allegations contained in the second claim, and alleged that she had been constructively discharged.

Plaintiff left work on September 19, 2000 and then went on sick leave. Plaintiff did not return to NAH afterwards, and tendered her resignation letter to Rivera and the Human Resources department on November 19, 2000.

Perez filed the present lawsuit on October 26, 2000. Perez bases her sexual discrimination claims on a mosaic of allegations. First, Perez contends that NAH fostered a hostile work environment, as evidenced by: 1) the January 10th incident where Dahl hit her on the buttocks, 2) NAH's failure to investigate the incident, 3) Dahl's actions in watching her and taking notes, and 4) the actions of her co-workers who "shunned her and isolated her and perpetuated rumors that she would be demoted" after they learned of her complaint against Dahl. Second, Perez contends that she was not promoted to the position of Lieutenant, while another male employee with equal or lesser qualifications was awarded the promotion. Third, Perez contends that after the alleged incident on January 10, NAH retaliated against her for reporting the complaint. She indicates that her co-workers ostracized her and perpetuated rumors about her demotion or termination, false allegations of policy violations were made against her, she was transferred to another shift, and this transfer was in effect a demotion because she was forced to report to a subordinate employee. In addition, Perez contends that while she and another male employee were ineligible for "comp time," she was denied "comp time," which was mistakenly given to another male employee.*fn6 in short, Perez claims that she was constructively discharged, since all of these actions led to a "work environment so uncomfortable that no person could reasonably be expected to endure it."

NAH filed a motion for summary judgment, which the court now addresses.

II. DISCUSSION

A. Standards for Summary Judgment:

Summary judgment is permissible when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c), "Factual disputes are `material' only when they `might affect the outcome of the suit under the governing law.'" Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 610 (7th Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999). Thus, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The days are gone, if they ever existed, when the nonmoving party could sit back and simply poke holes in the moving party's summary judgment motion." Fitzpatrick v. ...


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