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Marchman v. Advocate Bethany Hospital

July 12, 2006


The opinion of the court was delivered by: John F. Grady, United States District Judge


Before the court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, defendant's motion is granted.


The following relevant facts are drawn from the parties' statements of material facts, with any differences between them resolved in Marchman's favor. Pursuant to Local Rule 56.1(b)(3)(C), all material facts set forth in the defendant's statement are deemed to be admitted unless controverted by the statement of the plaintiff.

Defendant Advocate Health Care d/b/a Bethany Hospital ("Advocate") is a hospital located in Oakbrook, Illinois. Plaintiff Timothy Marchman ("Marchman") was employed by Advocate as a Nuclear Medicine Lead Technician in the hospital's radiology department. As a Nuclear Medicine Lead Technician, Marchman performed diagnostic testing, received and recorded radioactive material, performed scans on patients, and prepared on-call associate's schedules. Marchman began work on July 7, 2000. His supervisor was Milton Barnes ("Barnes"), Bethany Hospital's Director of Diagnostic Services.

Although the Nuclear Medicine section of the Radiology Department operated 24-hours a day, seven days a week, Marchman was its only full-time employee. During the time of Marchman's employment, the section also had one contract employee, Rafig Qadri ("Qadri"). Both Marchman and Qadri were assigned on-call and call-in assignments after regular working hours and weekends. "On-call" refers to situations where (1) an associate is not required to remain on the work premises, but is required to be available for phone contact, or (2) an associate is required to carry and respond to a paging or beeping device during hours other than his normal work time. "Call-in" refers to instances where (1) an on-call associate is required to return to his work site after he has finished work for the day and has already left the site, (2) an associate who is on-call is called in early before his scheduled shift, or (3) an associate is called in on his day off. Marchman and Qadri were paid $3.00 per hour when assigned to on-call duty. They were paid time and one-half when called in, with a guaranteed minimum of two hours of work.

Advocate's pay period consists of 14 consecutive calendar days, beginning on a Sunday and ending on a Saturday. Advocate does not pay daily overtime. Rather, hours can be accumulated towards overtime. Associates are required to work more than 40 hours a week to earn overtime. Hours that can be accumulated towards overtime include regular hours, clinical and non-clinical educational hours, and call-in hours worked. Hours that cannot be accumulated toward overtime include paid time off, on-call, and call-in guaranteed minimum hours.

When Marchman began his employment at Advocate, he was paid $23.75 per hour. He subsequently received salary increases in 2001, 2002, and 2003. His final salary was $29.17 per hour. In December 2003 Barnes informed him that he would not be awarded a salary increase.

Pursuant to Advocate's compensation policy, an associate is paid his regular hourly rate for all hours spent attending an approved continuing education program during working hours. Marchman attended a continuing education class on November 8, 2002, for which he was paid. He also produced a money order receipt dated October 24, 2003 in support of his claim that he attended a second educational course that month. However, Barnes stated in an affidavit that he never received or approved the reimbursement request.*fn1

At various times during July 2003, December 2003, and February 2004, Marchman complained verbally to Lisa Dobbs ("Dobbs"), Executive Director of the hospital, that Advocate had failed to pay him for overtime. In response to one of the 2003 inquiries, Dobbs explained to him that an associate was required to work more than 40 hours during a pay period week to earn overtime.*fn2 Barnes and representatives from human resources later provided Marchman with Advocate's overtime policy.

On February 16, 2004 Marchman attended a Town Hall meeting at Bethany Hospital where Advocate corporate officials met with Bethany employees concerning the Advocate system and employee relations. During the Town Hall meeting Marchman complained to Advocate's corporate officials that it had failed to pay him properly for overtime for all hours worked over eight hours during a day. After the meeting, he discussed his complaint with the human resources department and Barnes. Barnes explained to Marchman that he was not eligible for overtime if he did not work over 40 hours during a pay period and that vacation leave hours are not considered in the calculation of weekly hours for overtime.

Marchman claims that on February 6, 2004, Nazareen Ashraf ("Ashraf"), an EKG technician in the Radiology Department, reported to her supervisor that Marchman may have damaged the nuclear medicine camera. After receiving the complaint, Barnes requested that Tom Collins ("Collins"), Site Manager for Clinical Engineering for Bethany Hospital, inspect the nuclear medicine camera to determine whether it had been damaged. Upon completion of an investigation, Barnes concluded that Marchman had not damaged the nuclear medicine camera. Marchman admitted that no co-workers approached him concerning the allegation that he may have damaged the nuclear medicine camera.

Sometime around February 4, 2004, a Bethany Hospital associate informed Human Resources that she had been sexually harassed by Marchman. After the Human Resources department received the complaint, Brenda Mitchell ("Mitchell"), a Human Resources representative, conducted an investigation pursuant to Advocate's General and Sexual Harassment Policy. The investigation included extensive interviews of Ashraf, Marchman, Mary Bruce ("Bruce"), Ashraf's supervisor, Ashraf's co-workers, and Barnes. After the investigation, Mitchell prepared an investigation report that concluded that Marchman's actions were in violation of Advocate's General Harassment and Sexual Harassment policy. The report was submitted to Jason Spigner, Director of Human Resources, Barnes and Advocate's Workplace Diversity Department. On February 17, 2004, Advocate terminated Marchman's employment for violation of its sexual harassment policy.

Marchman filed a Formal Resolution Request contesting the allegations of sexual harassment. An arbitration panel was formed, consisting of Al Lewis, Vice President of Workforce Diversity, Jeane Jones, an Advocate Associate, and Verna Dowden, an Advocate Manager. On February 25, 2004, the Arbitration Panel held a hearing. Marchman, Ashraf, Barnes, Bruce and other associates participated in the hearing. On March 25, 2004, the Arbitration Panel issued a final and binding decision that upheld Advocate's termination of Marchman. Subsequent to his termination, Marchman did not file a wage claim with any federal or state administrative agency.

On September 16, 2004, Marchman filed his five-count pro se complaint. Count I is a claim under the Federal Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. In particular, Marchman claims that Advocate failed to pay him for on-call hours worked on the following dates: September 9, 2000; October 1-2, 2000; October 7-8, 2000; October 28-29, 2000; November 4-5, 2000; November 25-26, 2000; December 13-14, 2000; December 23-24, 2000; December 24-25, 2000; December 31, 2000--January 1, 2001; January 20-21, 2001; February 17-18, 2001; October 18-19, 2003; and October 25-26, 2003. Marchman also contends that he was not paid for overtime hours worked during the pay period of August 10-23, 2003, and that he was entitled to overtime for days on which he worked more than eight hours during the period of December 26, 2003-February 16, 2004.

Count II asserts a claim for retaliation under the FLSA. Marchman contends that his employment was terminated in retaliation for his complaints regarding Advocate's failure to compensate him properly for overtime hours worked, in violation of ยง 15(a)(3) of the FLSA. He also argues in his response brief that he was terminated ...

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