United States District Court, N.D. Illinois
April 26, 2004.
SIR EZELL WILKINS, Plaintiff
RIVEREDGE HOSPITAL, Defendant
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Sir Ezell Wilkins ("Wilkins") has sued his former employer Riveredge
Hospital ("Riveredge") under Title VII of the Civil Rights Act of 1964
(42 U.S.C. § 2000e) for assertedly discriminating against him on
account of sex when it terminated his employment and then refused to
rehire him after an internal appeal. Riveredge has moved for summary
judgment pursuant to Fed.R.Civ.P. ("Rule") 56, and both parties have
complied for the most part with this District Court's LR 56. I.*fn1
Because Wilkins has not created a reasonable factual inference that
either or both of Riveredge's decisions (1) to terminate him and then
(2) not to rehire him were because of his sex, Riveredge's motion for
summary judgment is granted and this action is dismissed.
Rule 56 Standards
Every Rule 56 movant must establish the absence of a genuine issue of
material fact (Celotex Corp. v. Catrett, (477 U.S. 317, 322-23 (1986)).
For that purpose this Court considers the evidentiary record in the light
most favorable to the nonmovant and draws all reasonable inferences in
his favor (Lesch y. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.
2002)). But to avoid summary judgment a nonmovant "must produce more than
a scintilla of evidence to support his position" that a genuine issue of
material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th
Cir. 2001)) and "must set forth specific facts that demonstrate a genuine
issue of triable fact" (id.). Ultimately summary judgment is warranted
only if a reasonable jury could not return a verdict for the nonmovant
(Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows
is a summary of the facts viewed in the light most favorable to nonmovant
Wilkins but within the limitations created by the extent of his
compliance (or noncompliance) with the strictures of LR 56.1.
Riveredge is a mental health facility specializing in psychiatric care
for adolescents (W. St. ¶ 1; R. St. ¶ 5). Between October 2000 and
November 2001 Wilkins worked as a night shift mental health counselor,
serving predominantly in one of Riveredge's female adolescent units (W. St. ¶ 1; R. St. 18; W. Resp. ¶
9), His immediate supervisor was Nurse Manager Elaine Shemroske
("Shemroske") (W. St. ¶ 5). One of Wilkins' regular duties was to
conduct patient rounds every fifteen minutes by physically "eyeballing"
each patient and making a notation of the patient's location on
Psychiatric Nurse Flow Sheets ("Rounds Sheets") (W. St. ¶¶ 10, 19; R. St.
¶¶ 20, 28, 30, 35; W. Resp. ¶ 22).
On November 7, 2001 a patient named "Dominique" was discharged from
Riveredge at 6 p.m. (W. St. ¶ l3). Wilkins was the Riveredge employee
who escorted her to the lobby and then (as required) separated her Rounds
Sheet from the rest of the pile of such sheets and left it on the nurse's
desk (W. St. ¶¶ 15-16, R. St. ¶ 47). But Wilkins did not put Dominique's
Rounds Sheet in the "closed file box" also as required and as he had
done when he assisted with discharging previous patients (R. St. ¶¶ 45,
48). At about the same time another employee in the unit lost, her keys,
so that all patients were sent to their rooms until the missing keys
could be located (W. St. ¶¶ 5, 9).
When Wilkins returned from discharging Dominique, he picked up the
stack of Rounds Sheets and began to conduct rounds (W. St. ¶ 17).
Although Wilkins says he was unaware of it, Dominique's Rounds Sheet was somehow in the pile of Rounds Sheets,*fn2 and
throughout the course of the evening Wilkins made several notations on
Dominique's Rounds Sheet that she was either "in room," "in group" or
"sleeping" (W. St. ¶¶ 18, 22; R. St. ¶¶ 53, 55). Two notations on
Dominique's Rounds Sheet were also made by Riveredge employee Sherrie
Dean ("Dean") after Dominique's discharge (W. St. ¶ 56; R. St. ¶ 99).
Because Dominique had in fact been discharged several hours earlier, of
course Wilkins did not really see her when he made the several notations
of having done so on her Rounds Sheet (R. Resp. ¶ 20). Wilkins says
he veered from his normal practice of eyeballing each patient that night
because (due to the lost keys incident) all of the patients were in their
rooms and not at different locations throughout the unit as usual. So
rather than locating each individual patient visually and then making a
notation on her Rounds Sheet, Wilkins simply verified that all patients
were in their rooms and then marked the Rounds Sheets accordingly, but
without checking the individual names (W. St. ¶¶ 19-21; R. St. ¶
50; R. Resp. ¶¶ 19-20). But at the end of his shift Wilkins reviewed
the Rounds Sheets and realized that Dominique's had been inadvertently
filled in throughout the course of the night long after she had left the hospital (W. St. ¶
After noticing the problem with Dominique's Rounds Sheet in the
morning, Shemroske brought the sheet to her immediate supervisor Pat
Thomas ("Thomas," also a female)(W. St. ¶¶ 26, 30; R. St. ¶¶ 6, 57).
Shemroske showed Thomas the entries that Wilkins had made on Dominique's
Rounds Sheet and recommended that Wilkins be terminated for falsification
of patient records (W. St. ¶¶ 31-33, R. St. ¶ 58).
When Wilkins arrived for work on November 8, 2001 he was immediately
called into a meeting with Shemroske, Thomas and HR representative Karen
Lindsay ("Lindsay") (W. St. ¶ 40). Thomas showed Wilkins Dominique's
Rounds Sheet and asked him if he had made the entries. He freely admitted
that he had. Thomas informed him that his conduct was grounds for termination, and Wilkins
was promptly terminated for falsification of patient records (W. St.
141; R. St. ¶ 68).
As permitted by Riveredge's grievance policy, Wilkins appealed his
termination (W. St. ¶ 46). In his appeal letter Wilkins explained the
unusual circumstances surrounding his conduct (the lost keys issue plus
his assertion that he wag unaware that Dominique's Rounds Sheet was in
the pile of Rounds Sheets he was completing) and argued that he was
terminated for a clerical error that he was never given the opportunity
to correct (W. St. ¶¶ 47-48). Although Wilkins asked that his grievance
hearing be held before CEO Mark Russell ("Russell"), the hearing was
conducted by CFO Jack Barzilai ("Barzilai") and attended by Lindsay (W.
St. ¶¶ 52-53; R. St. ¶¶ 82-83; W. Resp. ¶ 79).
After hearing Wilkins' explanation and arguments, Barzilai was not
persuaded that Wilkins' discharge was unwarranted based on the
circumstances, and he therefore denied the request for reinstatement (R.
St. ¶¶ 86-87). Wilkins's current lawsuit stems from his belief that
Riveredge's decisions to terminate and then not to rehire him were
related to his sex (R. St. ¶ 3).
Application of the Rule 56 Standards
Amidst this factual brouhaha, Wilkins discrimination claim is really
entirely hinged on one idea: Both he and Dean made entries on Dominique's
Rounds Sheet, but (1) initially Wilkins was terminated and Dean was not and (2) ultimately, after Dean was then
terminated, she was rehired and Wilkins was not.
Wilkins attempts to prove that claim for reverse sex discrimination*fn4
using both methods available to such a claimant (Mills v. Health Care
Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999)). Under the direct method
Wilkins must produce either direct or circumstantial evidence that would
entitle a jury to conclude that Riveredge discriminated against him
because of his sex (Rogers v. City of Chicago, 320 F.3d 748, 753-54 (7th
Cir. 2003)). Alternatively Wilkins could rely on the indirect method
first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under that rubric Wilkins must first establish a prima facie case
of sex discrimination by raising a genuine issue of material fact as to a
set of factors particularized to his circumstances (Flores v. preferred
Technical Group, 182 F.3d 512, 515 (7th Cir. 1999)). If he meets that
hurdle, the burden then shifts to Riveredge to offer a legitimate
nondiscriminatory reason for its actions (Gordon v. United Airlines.
Inc., 246 F.3d 878, 886 (7th Cir. 2001)). And if it does so, then the
burden of production finally shifts back to Wilkins (who always has the burden of persuasion) to show*fn5 that Riveredge discriminated against
him based on his sex, most likely by showing that its asserted reason is
so factually baseless, insufficiently explanatory or otherwise dubious
that a jury could find it unworthy of credence and really a pretext for
discrimination (id. at 888-89).
Wilkins' attempt to avoid summary judgment via the direct method fails
quickly. There is no doubt that Shemroske made numerous comments that
could indicate a bias against men. She frequently expressed concerns
about the male/female ratio in the unit and about males working in a
female adolescent unit generally. Those concerns were sought to be
justified by her on several rationales, including the convincing view
that there were certain tasks (like bathing supervision) that ought to be
performed only by female staff members, as well as a generalization
perhaps more conclusionary that only the most mature male staff could
handle dealing with some of the emotional issues prevalent among the
girls (W. St. ¶¶ 73, 81-82, 85-88; R. St. ¶¶ 127-28; R. Resp. ¶¶ 73, 82).
But the problem with pointing to such comments by Shemroske is that
they fail to equate to direct evidence of Riveredge's discriminatory
motivation, because they are not comments by any of its decisionmakers.
Nor is there any indication that they somehow poisoned the well from
which the decisionmakers drew their decisions to terminate and not to
rehire Wilkins (Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir.
As to the first of those considerations, Shemroske was not responsible
for Riveredge's decision to terminate Wilkins, nor was she involved in
the decision not to rehire him after his grievance hearing (W, St, ¶
38; R. St. ¶ 90). Certainly she was the Riveredge employee who
originally brought Wilkins' conduct to the attention of the chain of
command, and clearly it was within her authority to recommend whether or
not an employee should be terminated (W. St. ¶¶ 30-34; R. Resp. ¶¶ 29,
34). Nonetheless the ultimate decisions to terminate Wilkins, and later
not to rehire him, had to be made by a member of Riveredge's executive
staff (W. St. ¶ 38; R. St. ¶ 61; R. Resp. ¶¶ 29, 37).
Of course an upper manager reviewing decisions may sometimes function
merely as a cat's-paw for determinations really made by a more direct
supervisor such as Shemroske (Willis v. Marion County Auditor's Office,
118 F.3d 542, 547 (7th Cir. 1997)). And if this were a situation where
the executive employees who made the choices to terminate and then not to rehire Wilkins based their
decisions only or even materially on information provided to them by
Shemroske, what could fairly be viewed as her discriminatory perspective
could raise a reasonable inference that Riveredge discriminated against
Wilkins on account of his sex (Mateu-Anderegg v. Sch. Dist. of Whitefish
Bay, 304 F.3d 618, 627 (7th Cir. 2002) (Ripple, J., concurring)).
But that it not the case here. Looking first to the decision to
terminate Wilkina, it is clear that several different people (including
Shemroske, Thomas and Lindsay) all provided information to the final
executive decisionmaker (W. St. ¶¶ 33, 35, 37-38; R. Resp. ¶ 37).
Wilkins has not presented any evidence that either Thomas or Lindsay was
anything but impartial in her presentation of the situation. Indeed,
Thomas' previous disagreement with Shemroske regarding her opinions about
the impact of having men in her unit suggests that even if Shemroske's
views influenced her own actions, Thomas' involvement sufficiently
insulated the final decision to terminate Wilkins from any anti-male
animus (W. St. ¶ 99; R, St. ¶¶ 128, 130).
It is also clear that Shemroske played no role at all in the later
decision not to rehire Wilkins (R. St. ¶ 90). At that analytically
distinct stage (Sauzek v. Exxon Coal USA., Inc., 202 F.3d 913, 920 (7th
Cir. 2000)), Barzilai alone considered the arguments that Wilkins
presented in his appeals letter and gave him ample opportunity to explain himself in person at his grievance
hearing (W. St. ¶ 53; R. St. ¶ 86).
With there thus being no indication that either employment decision
independently made by Riveredge's executive staff was tainted by
Shemroske's comments, no causal link even arguably exists between those
comments and the decisions. Shemroske's comments are not even enough to
approach a "convincing mosaic" of circumstantial evidence that could
create an inference of intentional discrimination, such as to allow
Wilkins to survive summary judgment on a direct method theory (Cerutti
v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003); Schreiner v.
Caterpiller, Inc., 250 F.3d 1096, 1099 (7th Cir. 2001)).
Wilkins must therefore seek to turn to the ready-made presumptions of
the indirect method. In that respect his first hurdle is to meet his
prima facie burden by creating at least reasonable inferences (1) that
some background circumstances exist that indicate that Riveredge is one
of those unique employers that discriminates against men (who have
historically been a favored group), (2) that Wilkins suffered an adverse
employment action and (3) that he was treated less favorably than other
similarly situated employees (Mills, 171 F.3d at 454, 457).*fn6 In terms of the first factor, several of Shemroske's comments (explored
earlier in this opinion) reflect that she was acutely aware of the sex of
the employees in her unit. Regardless of her nondecisionmaker status in
this instance, Shemroske's comments might suffice to raise a genuine
issue of material fact for purposes of the required flexible inquiry
(id. at 457). Next, it is readily apparent that Wilkins suffered adverse
employment actions when he was terminated and when his request for
reinstatement was denied after a grievance hearing (R, St. ¶ 87). But as
to the final prong of the necessary prima facie sex discrimination case,
Wilkins asserts that he was treated less favorably than Dean. And there
he fails because he has not raised a genuine issue of material fact to
imply that he and Dean were similarly situated, such that a comparison
would contribute meaningfully to a discrimination evaluation.
Employees are "similarly situated" if they are directly comparable in
all material respects (Patterson v. Avery Denniaon Corp., 281 F.3d 676,
680 (7th Cir. 2002)). In the disparate discipline context, that typically
means a plaintiff and his assertedly comparable employee were subject to
the same standards, had the same supervisor "and had engaged in similar
conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them"
(Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)).
At the threshold it must be held that the only proper comparison
between Wilkins and Dean looks to Riveredge's divergent decisions to
rehire Dean but not Wilkins after their respective grievance hearings. To
be sure, Wilkins argues that the circumstances surrounding his original
termination should also be considered because Dean also made false
entries on Dominique's Rounds Sheets but was not terminated in November
2001 for her conduct (W. St. ¶¶ 56-57). But that is a red herring, for
the record reveals that Dean was not terminated in November 2001 because
Riveredge did not know of Dean's violations at that time (R. St. ¶¶
71, 80, 88-89).*fn7 When Riveredge did find out about Dean's conduct
several months later, it promptly terminated her (R. St. ¶¶ 94, 98).
Clearly the relevant Wilkins-Dean comparison at the rehiring stage is incongruous as to several factors. First, even though Shemroske
supervised both Wilkins and Dean, they are still not appropriately
comparable because different people were responsible for the decisions to
rehire Dean and not to rehire Wilkins (Radue, 219 F.3d at 618). It was
Barzilai who made the decision not to rehire Wilkins after his grievance
hearing (R. St. ¶ 87). By contrast, Dean's grievance hearing was
attended by Russell, HR representative Marc Pieart ("Pieart") and
Thomas, with the decision to rehire Dean being made by Russell alone,
despite recommendations from both Pieart and Thomas that Dean should not
be rehired (W. St. ¶¶ 67, 70-72; R. St. ¶¶ 104, 110; W. Resp. ¶ 105).
Wilkins has proffered nothing to cast any cloud on the evidence as to the
executive personnel who were responsible for the decisions to rehire or
not to rehire the two employees (R. St. ¶ 139; W. Resp. ¶¶ 87, 104).*fn8
Just as importantly and as an independent ground for rejecting Wilkins'
contentions, he has not provided any arguable showing that, in light of
all facts and circumstances involving the two employees, the conduct that
he and Dean engaged in was sufficiently indistinguishable so that Riveredge could not legitimately
rehire Dean while rejecting Wilkins (Radue, 219 F.3d at 618). In that
regard there is no dispute that violations of Riveredge's policy as to
falsification of patient records (or any other hospital policy
violations) are reviewable matters, with the ultimate decision to
terminate an employee being within the discretion of an executive member
of Riveredge's administration given all the facts and circumstances (W.
St. ¶ 49; R. St. ¶ l03). And as the following analysis shows, nothing
supports a reasonable inference that the discretion was exercised in a
In Wilkins' case Barzilai determined that Wilkins' effort to present
explanatory circumstances did not excuse his otherwise violative conduct,
so that the decision to terminate Wilkins had been correct (W. St. ¶
53; R. St. ¶ 86; R. Resp. f54). On the other hand, in reviewing
Dean's situation Russell concluded that Dean's conduct did not warrant
the same consequence that had been visited on Wilkins. To that end
Russell referred to the facts (!) that Wilkins had personally facilitated
Dominique's discharge while Dean had not, (2) that Wilkins and not Dean
was responsible for separating Dominique's Rounds Sheet from the rest of
the sheets and (3) that Wilkins had erroneously marked Dominique as "in
room," "in group" and "sleeping" over the course of six hours, while Dean
had incorrectly initialed Dominique's Rounds Sheet only twice over the course of 15 minutes and had not completed the
accompanying location code (W. St. 167; R. St. ¶¶ 99, 105-07).
As is often repeated in the caselaw, it is not this Court's role to sit
as a super-personnel department by second guessing decisions that are
within Riveredge's discretionary business judgment. That is particularly
true where, as here, Riveredge has articulated specific and rational
reasons for the divergence between the decisions to rehire Dean and not
to rehire Wilkins (Gordon, 246 F.3d at 888-89; Snipes v. Ill. Dep't of
Corr., 291 F.3d 460, 463 (7th Cir. 2002)).
That characterization parallels the required consideration at the third
(pretext) stage of the indirect method analysis (Gordon, 246 F.3d at
892). And that being so, Wilkins' prima facie case of sex discrimination
fails, so that Riveredge is not obligated to proceed with its burden of
explanation under the McDonnell Douglas scheme (Cerutti, 349 F.3d at
Although what has been said before now suffices to defeat Wilkins'
claims, it is also true that nothing suggests Riveredge's stated reasons
for its actions were a pretext for discrimination (R. St. ¶ 68). No
evidence even hints that either Barzilai or Russell was being
discriminatory (or for that matter that either of them was being
unreasonable) in reaching their respective decisions (Flores, 182 F.3d at
516). There is no question that Barzilai was unaware that Dean had initialed Dominique's
Rounds Sheet when he made the decision as to Wilkins, and as already
stated Russell articulated several sound bases for his decision (R. St.
¶¶ 89, 105-07).
Wilkins' charge of a sex-discriminatory discharge is wholly empty, and
the same thing is true of his claim that Riveredge discriminated against
him when Russell decided to rehire Dean for her conduct several months
after Barzilai had declined to rehire Wilkins for what Wilkins asserts is
comparable conduct. Both of those contentions are totally unsupported by
the factual record before this Court. There is no genuine issue of
material fact, so that Riveredge's Rule 56 motion is granted and this
action is dismissed.