United States District Court, N.D. Illinois, Eastern Division
August 18, 2004.
MARY LESNIK, Plaintiff,
COOK COUNTY, Defendant.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Mary Lesnik filed a complaint on May 13, 2002 against
Defendant Cook County ("the County") alleging national origin
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e(3)(a).
Lesnik, a U.S. citizen of Polish descent, worked as a nurse
practitioner assigned to the Nephrology Clinic at Cook County
Hospital until her termination on October 19, 2001. She was one
of four nurse practitioners assigned to the Nephrology Clinic
during the relevant time period, the others being Barbara Kenny
(female/African American), Mary Joseph (female/East Indian), and
Prema David (female/East Indian). Dr. George Dunea, a white male,
was the Chairman of the Divison of Nephrology/Hypertension during
the relevant time period. Pursuant to Illinois law, the Bureau of
Health required all nurse practitioners to secure a collaborative
agreement with a physician by July 15, 2001. Each nurse
practitioner was responsible for securing an agreement, and a
physician's decision to enter a collaborative agreement was
strictly voluntary. Dr. Dunea notified Lesnik on October 10, 2001
that he would not enter into a collaborative agreement with her.
On October 19, 2001, an administrative hearing was held at which
Dr. Dunea recommended Lesnik's removal from practice. She was
terminated effective October 19, 2001 for the stated reason that she did not have a collaborative agreement with a
physician. Count I of Lesnik's Complaint alleges disparate
treatment on the basis of national origin and gender. Count II
alleges a pattern and practice of retaliation purposely designed
to punish her for assisting another nurse practitioner in the
prosecution of her similar EEOC claims against the County. The
County now moves for summary judgment on both counts.
Summary judgment should be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The
County bears the burden of showing that the record does not
disclose a genuine dispute of a material fact. See Haefling v.
UPS, 169 F.3d 494, 497 (7th Cir. 1999). I will draw all
reasonable factual inferences in favor of Lesnik, the non-movant.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A prima facie case of intentional discrimination combined with
sufficient evidence for a reasonable jury to reject the County's
nondiscriminatory explanations for Lesnik's suspension and
termination is adequate to sustain a finding of liability for
intentional discrimination, and, therefore, would preclude
summary judgment. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 140 (2000).
Count I: Disparate Treatment
Under Title VII, an employer may not lawfully "fail or refuse
to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. 2000e-2. A plaintiff without direct
evidence of discrimination, such as an admission, may establish a prima facie
case of disparate treatment by satisfying the three-part,
burden-shifting test articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See also Olsen v. Marshall & Ilsley
Corp., 267 F.3d 597, 600 (7th Cir. 2001). Under this approach,
Lesnik must show that (1) she is a member of a protected class,
(2) she was meeting her employer's legitimate work expectations,
(3) she suffered an adverse employment action, and (4) her
employer treated similarly situated employees outside the
protected class more favorably. See McDonnell Douglas Corp.,
411 U.S. at 802-03; Lalvani v. Cook County, 269 F.3d 785, 789
(7th Cir. 2001). If Lesnik successfully establishes her prima
facie case, the burden shifts to the County to articulate a
legitimate, nondiscriminatory reason for the employment action.
See Olsen, 267 F.3d at 600. Lesnik then carries the burden of
proving that the County's proffered reason was a pretext for
discrimination. See Id.
Since the first element of the McDonnell Douglas test does
not appear to be in dispute,*fn1 I will move directly to the
second element, whether Lesnik has shown that she has met her
employer's legitimate work expectations. The County argues that
Lesnik cannot do this because she was suspended for failing to
follow department protocol. It is undisputed that Lesnik did not
provide the requisite notice to her department for her
unscheduled absence. The hearing officer who heard the complaint
filed against Lesnik found that Lesnik did not follow
departmental protocol and suspended Lesnik for four days.
However, a single citation does not definitively establish, for
purposes of this motion, that Lesnik was not meeting the County's
overall work requirements. I move now to the third element of the McDonnell-Douglas
test, which requires Lesnik to show that she was subject to an
adverse employment action. To establish that an employment action
qualifies as adverse, Lesnik must show a materially adverse
change in the terms, conditions, or privileges of employment, and
the action must be more disruptive than a mere inconvenience or
the alteration of job responsibilities. See Hilt-Dyson v. City
of Chicago, 282 F.3d 456, 465 (7th Cir. 2002) ; Johnson v. City
of Fort Wayne, 91 F.3d 922, 932 (7th Cir. 1996). The County
argues that the only possible adverse employment actions taken
against Lesnik were her May 7, 2001 4-day suspension and her
October 19, 2001 discharge, both of which had tangible job
consequences. See Sweeney v. West, 149 F.3d 550, 556 (7th Cir.
Lesnik's Complaint alleges that Dr. Ahmed and Dr. Dunea
subjected her to additional adverse actions. Lesnik alleges that
Dr. Ahmed interfered with the performance of her job duties,
threatened her, and told her that women are considered "nothing"
and are "burned alive" in India for insubordination when they
become "too outspoken about their rights." Lesnik presents no
evidence, however, that Dr. Ahmed's conduct resulted in tangible
job consequences or a change in her material working conditions.
On the basis of Lesnik's allegations, Dr. Ahmed's conduct, which
would be inappropriate and offensive if true, does not rise to
the kind of severe and pervasive harassing conduct required to be
considered an adverse employment action.*fn2 See
Hilt-Dyson, 282 F.3d at 466. Lesnik further alleges that Dr. Dunea's written reprimand of
her conduct and his refusal to sign her collaborative agreement
constituted disparate treatment. The Seventh Circuit has ruled
that such a reprimand is not alone an adverse employment action
under Title VII unless it is accompanied by job loss or demotion.
See Krause v. City of La Crosse, 246 F.3d 995 (7th Cir. 2001).
Accordingly, I find that the reprimand was not an adverse action
within the meaning of Title VII.*fn3 Dr. Dunea's refusal to
enter into a collaborative agreement presents a more difficult
question. I think the loss of job security caused by Dr. Dunea's
refusal to enter into a collaborative agreement was sufficient to
cause a material change to Lesnik's working condition and
qualifies it as an adverse employment action.
The fourth and final element of the McDonnell-Douglas test
requires Lesnik to show that she was treated less favorably than
employees outside her protected class, a burden which the County
claims has not been met. With respect to Lesnik's suspension, the
County is certainly correct.*fn4 Lesnik has not presented
any evidence of nurses who failed to properly report unscheduled
absences going unpunished. As to Dr. Dunea's refusal to enter
into a collective bargaining agreement with her and her ultimate
termination, Lesnik has presented some minimal evidence of disparate treatment.*fn5 Lesnik points out that
the three other nurse practitioners in her department who were
not of Polish decent were able to secure collaborative agreements
with physicians and, therefore, were not terminated.*fn6
When viewed in the light most favorable to Lesnik, this scant
evidence is enough to establish the final element of her prima
facie case for discrimination.
Once Lesnik has established her prima facie case for
discrimination, the burden shifts to the County to give a
legitimate, non-discriminatory reason for Dr. Dunea's refusal to
enter into a collective bargaining agreement with Lesnik and for
Lesnik's ultimate termination. Physicians are not compelled to
enter into collaborative agreements with nurse practitioners.
They may do so voluntarily, and nurse practitioners are
responsible for securing their own collaborative agreements. Dr.
Dunea's stated reasons for not signing an agreement with Lesnik
were that she had been subject to previous disciplinary actions
and that she had received complaints from other doctors
concerning her conduct. So long as he did not refuse to
collaborate with her because of her national origin, Dr. Dunea
was within his right to refuse. Since Lesnik has not presented
any evidence to suggest that these reasons were pretextual, I
accept them as legitimate, nondiscriminatory reasons for Dr.
Dunea's actions and grant summary judgment on Lesnik's claims of
discrimination. Count II: Retaliation
Title VII prohibits employers from retaliating against an
employee who has accused the employer of violating the Act,
opposed any practice made unlawful by Title VII, or who has
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing. 42 U.S.C. § 2000e-3(a);
Fine v. Ryan Int'l Airlines, 305 F.3d 746, 751 (7th Cir. 2002).
Lesnik may prove a claim of retaliation through either the direct
method proof or the indirect, burden-shifting method articulated
in McDonnell Douglas. See Rogers v. City of Chi., 320 F.3d 748,
753 (7th Cir. 2003); Hilt-Dyson, 282 F.3d at 465; Stone v.
City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th
Cir. 2002). The County argues that Lesnik cannot establish
retaliation under either method.
To establish retaliation under the direct method of proof using
circumstantial evidence*fn7 Lesnik must show that (1) she
engaged in statutorily protected activity, (2) she suffered an
adverse employment action, and (3) that a causal connection or
nexus exists between the protected activity and the adverse
action. See McKenzie v. Ill. DOT, 92 F.3d 473, 483 (7th Cir.
1996); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307,
1313 (7th Cir. 1989). To demonstrate a causal link, Lesnik must
show that the County would not have taken the adverse action "but
for" the protected expression. See McKenzie, 92 F.3d at 482;
Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d 469, 479 (7th
Lesnik claims that the County retaliated against her for
assisting another nurse practitioner, Evelyn J.D. Szymanski, in
the prosecution of her EEOC claims against Cook County. Lesnik, in her Response to Defendant's Brief, mentions
only her "open support of Szymanski" and states that she was
identified as a friend and supporter of Szymanski, had often
conferred with her concerning her claims, and agreed to testify
on her behalf at her trial. Lesnik has not, however, presented
any evidence that she actually testified, assisted, or
participated in an investigation, proceeding, or hearing related
to the EEOC claim. She has also not presented evidence that she
opposed discrimination on Szymanski's behalf. While she makes
conclusory statements about Dr. Raba's and Dr. Ahmed's knowledge
of her relationship with Szymanski, they are unsupported by the
evidence cited. At most, the evidence shows only that Lesnik
volunteered to Ahmed that "[t]his may go further than the union,
EEOC, Department of Labor, et cetera." The evidence demonstrates,
therefore, only what Lesnik alleged in her Brief: that it may
have been known that she was supportive of Szymanski's EEOC claim
and may have discussed the case with her, neither of which are
protected expressions. This limited involvement with out more
does not rise to the level of a statutorily protected activity.
In any event, Dr. Raba's and Dr. Ahmed's knowledge is
irrelevant because Lesnik does not contend they were responsible
for taking any adverse employment actions against her. More
importantly, Lesnik provides no evidence that Dr. Dunea was aware
that Lesnik was supportive of Szymanski's case, let alone
assisting or participating in it. She relies on temporal
proximity, which is rarely sufficient to create a triable issue
of fact. See Stone, 281 F.3d at 644. Without such evidence,
Lesnik cannot sustain a prima facie case that Dr. Dunea initiated
either the disciplinary action in May or her termination in
October in retaliation for her support of Szymanski. Lesnik also fails to present sufficient evidence of the third
element, that a causal connection exists between her support for
Szymanski and her suspension and termination. See McKenzie,
92 F.3d at 482. She does not show that the hearing officer, who
suspended her, or Dr. Dunea, who declined to sign her agreement
and pursued her termination, would not have taken those actions
but for her support for Szymanski. Id. As noted above, she
relies on only temporal proximity. See Stone, 281 F.3d at 644.
Even if Lesnik could establish a prima facie case, the County's
stated non-discriminatory reason for terminating Lesnik would be
enough to support summary judgment unless Lesnik could show that
a genuine issue of material fact exists as to whether the
County's stated reason is merely pretextual. See Anderson v.
Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir. 1994);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993). The
reason given by the County was not only sufficient to motivate
the discharge, it is based on fact and was required by Illinois
law. As discussed above, Lesnik has not provided evidence that
Dr. Dunea refused to enter a collaborative agreement in
retaliation for her support of Szymanski. In fact, Dr. Dunea's
decision to enter into a collaborative agreement with Lesnik
would have been voluntary and is not otherwise required. Dr.
Dunea stated that he did not enter into an agreement with Lesnik
because other doctors had complained about her behavior and
because she had been subject to disciplinary actions. Without
evidence that he refused to sign the agreement for impermissible,
discriminatory reasons, Lesnik cannot show that Dr. Dunea's
stated reasons for not entering an agreement with her was
pretextual. Her claim of retaliation must, therefore, fail using
the direct method. The indirect method of establishing a prima facie case depends
on the same elements discussed above. Stone, 281 F.3d at 642.
For the same reasons cited above, I cannot conclude that Lesnik
has made out a prima facie case for retaliation using the
indirect method. Even if she had presented evidence establishing
a prima facie case, she has not offered sufficient evidence to
show that the County's stated reason for terminating her or
reprimanding her were merely pretext.
For the reasons stated above, the Defendant's Motion for
Summary Judgment is GRANTED.