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EARNEST v. SHRINERS HOSPITALS FOR CHILDREN

September 16, 2003

DELORIS EARNEST, PLAINTIFF,
v.
SHRINERS HOSPITALS FOR CHILDREN, DEFENDANT



The opinion of the court was delivered by: John W. Darrah, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Deloris Earnest, filed a two-count complaint against Defendant, Shriners Hospitals for Children, alleging age discrimination and a state claim of retaliatory discharge. Presently before the Court is Shriners' Motion for Summary Judgment.

BACKGROUND

Shriners is a network of twenty-two pediatric speciality hospitals located throughout North America, including a hospital in Chicago, where children receive medical care free of charge. (Def.'s 56.1(a)(3) Statement ¶ 10). Shriners hired Earnest as a nursing assistant at its Chicago hospital in August 1981. (Id., ¶ 11).

Beginning in 1999, other nurse assistants made comments about Earnest's age, including asking when she was going to retire and telling her it was time for the younger generation to take over. Beginning in 2000, younger nursing assistants referred to the employees who worked Earnest's shift as "old age people". (Def.'s 56.1(a)(3) Statement ¶ 12; Plaint.'s Response to ¶ 12). The six nursing assistants Earnest identified as making such comments were not assigned to the unit where Earnest worked during the night shift. However, two of the nursing assistants that made such [ Page 2]

comments occasionally worked in Earnest's unit if their unit was not busy. In addition, Earnest sometimes encountered the nursing assistants when she arrived fifteen minutes before her shift or at the end of her shift. (Id., ¶ 13). Beginning in 2000, Michaleen LaCivitia, one of Earnest's supervisors, made comments on several occasions that the younger nursing assistants "would put [Earnest] to shame" and had more strength than Plaintiff to work with the adolescent patients. (Plaint's 56.1(b)(3) Statement ¶ 66). Earnest did not complain in any fashion at any time about the comments made by the nursing assistants. (Def.'s 56.1(a)(3) Statement ¶ 14).

Throughout her employment at Shriners, Earnest received merit increases and positive performance evaluations from all her supervisors. (Def.'s 56.1(a)(3) Statement ¶ 15). Earnest's last two annual evaluations had the higher ratings than Earnest had received previously. (Id., ¶ 16). In May 2002, Earnest was nominated for the Outstanding Nursing Assistant Award. Earnest finished second in the voting for this award, the highest she had ever received for this award, (Id., ¶ 26).

On May 5, 2002, Earnest was present when Beata Lostumbo, another nursing assistant, asked Marilyn Ruszkowski, a nurse at Shriners, about changing the dressing on a patient's wound. (Def.'s 56.1(a)(3) Statement ¶ 17). Earnest asked Ruszkowski why Lostumbo was changing dressings while Earnest was not; Ruszkowski replied, "Maybe [Lostumbo] was trained to do them." (Id., ¶ 18). Earnest asked Ruszkowski why Earnest had not been trained to do dressing changes and told Ruszkowski that Lostumbo "ha[d] to have a degree in order to do this at Shriners Hospital." (Id., ¶ 19). Earnest did not mention Illinois law during her conversation with Ruszkowski, and she is unaware of any provision of Illinois law that makes it illegal for nursing assistants to change dressings. (Id., ¶ 20). Earnest believed that Lostumbo was disciplined for her conduct through a conversation she had with LaCivitia. (Id., ¶ 23). Earnest was not disciplined for reporting or [ Page 3]

observing any of Lostumbo's conduct. (Id., ¶ 24). Neither James Pawlowicz, Shriners' Human Resources Director, nor Shirley Bradley, Shriners' Human Resources Specialist, were aware of any complaint by Earnest about Lostumbo's performance of duties beyond her scope of a nursing assistant. Neither were aware of the discipline that Lostumbo received for performing duties outside her position. (Id., ¶ 25). Following the May 5th incident, Earnest was labeled "a mole" by Lostumbo and another registered nurse. (Plaint.'s 56.1(b)(3) Statement ¶ 72).

On June 27, 2002, Earnest attended one of several meetings Pawlowicz conducted for all Chicago Shriners' employees to discuss a new employee handbook. (Def.'s 56.1(a)(3) Statement ¶ 27). Prior to this meeting, Earnest had two face-to-face conversations with Pawlowicz. The first meeting was a brief introduction when Pawlowicz first started at Shrines. The second conversation concerned questions Earnest had about benefits. (Id., ¶ 28). Pawlowicz does not recall either conversation. (Id., ¶ 29). Shriners employs approximately 335 employees at the Chicago Hospital, and Pawlowicz knows approximately one-third of the Chicago employees by name. (Id., ¶ 30-31). Earnest was not one of the employees Pawlowicz knew by name during her employment at Shriners. (Id., ¶ 32). Pawlowicz works primarily during the day and has limited contact with employees, such as Earnest, who work the night shift. (Id., ¶ 33).

At the Handbook Meeting, which Earnest attended with approximately fifteen other employees, Pawlowicz discussed Shriners' policy of employment at will. (Def.'s 561.(a)(3) Statement ¶ 34). Pawlowicz testified that he directed his comments about employment termination to everyone in the room. Earnest, who was seated right in front of Pawlowicz, believed that some of Pawlowicz's comments referred only to her. (Id., ¶ 35).

Earnest testified that Pawlowicz directed his comments to her. These comments included [ Page 4]

looking around the room and stating, "I know what's on everyone's mind". He then looked directly at Earnest and asked, "Why is she still here?". Pawlowicz continued looking straight at Earnest with a malicious look on his face. Pawlowicz said that Earnest was a "bad seed" that he would "weed out" and "get rid of her. He stated that with the new handbook he could "get rid" of Earnest without giving a reason or cause and that he would "weed [Earnest] out and get rid of [her] soon, yet and soon." He repeated the same thing over and over for about fifteen minutes. He also stated, "What you've done to this hospital." (Id., ¶ 36; Earnest's Dep. pp. 61-64).

Bradley was present at the same meeting as Earnest. Bradley recalls Pawlowicz's using the words "getting rid of in connection with his discussion of at-will employment. She also recalls that Pawlowicz may have referenced a "bad seed" when discussing disciplinary actions. Bradley did not believe that any comments were directed at a specific employee, including Earnest. (Plaint.'s 56.1(b)(3) Statement ¶ 82; Def.'s Response ¶ 82). Pawlowicz denies that he used the words "get rid of and "bad seed". (Plaint.'s 56.1(b)(3) Statement ¶ 83).

Based on the events of the Handbook Meeting, Earnest decided to retire because she believed that she was going to be fired. Earnest did not want to be "escorted out" of the hospital. (Id., ¶ 38, Earnest's Dep. pp. 70-71). Prior to the Handbook Meeting, Earnest never had expressed any intention of retiring. (Id., ¶ 39). Earnest's only reason for retiring was due to her age and for reporting Lostumbo's misconduct, as Earnest ...


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