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Birch v. Illinois Bone & Joint Institute

September 28, 2006


The opinion of the court was delivered by: Judge Ronald A Guzmán


Elizabeth C. Birch has sued Illinois Bone & Joint Institute, Ltd. ("IBJI") for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Before the Court is IBJI's motion for summary judgment. For the reasons provided in this Memorandum Opinion and Order, the Court grants the motion.


On February 5, 1999, Birch began working part-time for defendant IBJI as an X-ray assistant/dark room technician in its Center for Orthopedic Surgery ("COS") division. (Def.'s LR56.1(a)(3) Stmt. ("Def.'s LR56.1(a)(3)") ¶¶ 2, 18, 73.) IBJI*fn2 is a group of medical practices that operate under the same corporate identity. (Id. ¶ 1.) IBJI outsources many of its administrative functions to Healthcare Information Services ("HIS"), a limited liability corporation in the business of health care consulting and administration that generates fifty percent of its revenues by providing services to IBJI.*fn3 (Id. ¶¶ 34, 36.)

In April 2003, IBJI promoted Birch to Purchasing Coordinator, a full-time supply purchasing position. (Id. ¶ 72; Pl.'s LR56.1(b)(3)(C) Stmt. ("Pl.'s LR56.1(b)(3)(C)") ¶ 163.) As Purchasing Coordinator, Birch reported to Maureen Zizzo, Administrator. (Pl.'s LR56.1(b)(3)(C) ¶ 159.)

After Birch's promotion, she began handling the purchasing of medical supplies for IBJI's offices in Des Plaines and Morton Grove, the Gottlieb Hospital office and various satellite clinics. (Id. ¶ 72.) During her tenure, Birch never established any formal ordering procedures for ordering COS' medical supplies. (Id. ¶ 76.) On February 5, 2004, Zizzo rated Birch's performance as a three on a five-point scale, indicating that Birch had met IBJI's basic requirements. (Pl.'s LR56.1(b)(3)(C) ¶¶ 167-68.)

In 2003, at a IBJI shareholder meeting, IBJI's management set a goal to expand group purchasing resources. (Def.'s LR56.1(a)(3) ¶ 50.) The management committee recognized a need to standardize product and lower inventory in order to reduce overhead and establish group purchasing for all of the IBJI sites. (Id. ¶ 53; Pl.'s Ex. E, Zizzo Dep. 55.) Wold stated that he felt there was noone employed at either HIS or IBJI who was qualified to lead the purchasing system he envisioned. (Def.'s LR56.1(a)(3)¶ 51.) Zizzo had informed Wold that Birch had not developed internal controls, protocol or policies to control inventory throughout COS. (Id. ¶ 52.) In July or August 2004, the PMC decided to outsource COS' inventory control and purchasing services to HIS. (Id. ¶¶ 51, 54.)

Around August or September 2004, IBJI began outsourcing its purchasing and inventory control services to non-party HIS. (Id. ¶¶ 188, 196; Pl.'s Ex. P, Wold Dep. at 19; Def.'s LR56.1(a)(3) ¶¶ 34-36.) At that time, Birch began working with William Whelehan, HIS' Director of Purchasing Services. (Pl.'s LR56.1(b)(3)(C) ¶ 197.) Whelehan's duties included centralizing purchasing procurement, negotiating volume discounts, using an electronic data base and structuring staffing for inventory control. (Id. ¶ 194.)

In late August or early September, Whelehan states that he told Birch not to sign a revised contract with Caligor for medical supplies, and Birch recalls that Whelehan told her that he wanted to review it. (Id. ¶ 201; Pl.'s Ex. H, Whelehan Dep. 25, 35; Pl.'s Ex. A, Birch Dep. 220.) On August 26, 2004, Birch signed the contract without informing Whelehan or giving him an opportunity to review it. (Def.'s LR56.1(a)(3) ¶ 107.) Birch says that she signed the revised contract because she believed it would save IBJI money and she was angry that Zizzo would not look at it. (Def.'s Ex. J, Birch Dep. at 220-21.) Birch stated that a Caligor representative had told her that the contract was just a formality and could be terminated at any time. (Def.'s LR56.1(a)(3) ¶ 110.) Whelehan was upset when he found out and informed Zizzo that he did not want to be "the guardian of a contract [he] didn't sign and have to deal with [the] consequences." (Id. ¶ 108.)

In August 2004, Whelehan realized he would need assistance so he asked that the position of Inventory Control/Buyer be created, and HIS approved it. (Id. ¶ 122.) Whelehan's first choice for the position did not work out because the candidate, who was male, demanded too high of a salary. (Id. ¶ 124.) Whelehan then contacted David Hammond, with whom Whelehan had worked previously, to determine whether he was interested in the position. (Id. ¶¶ 125-26.) Hammond had worked for the Burrows Company, where he ordered and received supplies, established and maintained par levels, established a process to check and remove expired supplies and equipment, used spreadsheets to track inventory and adjust to changing demand and discontinued supplies, followed up on missing shipments and back orders and worked with hospital staff and vendors to adjust par levels with changes in demand or preferences. (Id. ¶ 128.) Whelehan conducted three interviews with Hammond before Whelehan offered him, and Hammond accepted, the Inventory Control/Buyer position at HIS. (Id. ¶ 131.) Whelehan did not consider Birch for the position because he already had another candidate, Hammond, in mind and he felt that Birch's signing of the Caligor contract "verged on insubordination." (Id. ¶ 130.)*fn4

On September 29, 2004, Birch met with Charles Henry, the Human Resources Administrator for IBJI and HIS, at IBJI's corporate office. (Id. ¶ 117.) Henry informed Birch that her position had been outsourced to HIS. (Id.)

On October 15, 2004, Birch filed a charge of discrimination with the EEOC. (Id. ¶ 139.) On October 29, 2004, Birch received a right-to-sue letter from the EEOC. (Compl. ¶ 6.) Birch then timely filed the instant suit. IBJI has moved for summary judgment.


Summary judgment is proper 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; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding a motion for summary judgment, the court must construe all facts and reasonable inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

IBJI moves for summary judgment on two grounds: (1) Birch's claim fails because IBJI and HIS cannot be treated as a single employer; and (2) in the alternative, Birch has failed to establish a genuine issue as to a material fact regarding a prima facie case of discrimination and pretext. The Court holds that based on the undisputed facts in the record, IBJI cannot be held liable for the conduct of HIS, a non-party. Even if the Court were to conclude that IBJI could be held liable for HIS' conduct, Birch has failed to raise a genuine issue as to a material ...

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