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Everett v. Cook County

March 30, 2010

CAROL A. EVERETT, PLAINTIFF,
v.
COOK COUNTY, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Carol A. Everett ("Everett") filed suit against her former employer, Cook County, alleging that it discharged her in violation of the Shakman Consent Decree, § 1983, Title VII, and § 1981. More specifically, Count I of Everett's Second Amended Complaint claims a violation of the consent decree entered in Shakman v. Democratic Org. of Cook County, 481 F. Supp. 1315, 1358 (N.D. Ill. 1979), vacated sub nom. Shakman v. Dunne, 829 F.2d 1387, 1389 (7th Cir. 1987), forbidding Cook County from basing any aspect or term of employment on politics. Count II claims that Everett was laid off for reasons of political patronage in violation of § 1983 and the First Amendment, Count IV claims race and gender discrimination in violation of Title VII, and Count V seeks a writ of certiorari requiring Cook County to certify the entire record of proceedings before its hearings officer for review by this Court. Pursuant to an agreed motion by the parties, the Court dismissed Count III of Everett's Second Amended Complaint alleging race and gender discrimination in violation of § 1981 on September 4, 2009. (See R. 94.) Cook County now moves for summary judgment on each of Everett's claims. For the reasons stated below, the Court grants Cook County's Motion for Summary Judgment as to Counts I, II, and VI, and relinquishes jurisdiction over Count V.

STATEMENT OF UNDISPUTED FACTS*fn1

I. Relevant Cook County Bureau of Health Employees in 2007

Cermak Health Services of Cook County ("Cermak") is a division within the Bureau of Health for Cook County (the "Bureau of Health") that provides healthcare to Cook County Detainees. (Pl. 56.1 Resp. ¶¶ 1, 8.) The Bureau of Health employed Dr. Robert Simon ("Simon") as Interim Bureau Chief between January 2007 and approximately April or March 2008. (Pl. 56.1 Resp. ¶ 9.) Simon reported directly to Cook County Board President Todd Stroger ("Stroger"). (Pl. 56.1 Resp. ¶ 9.)

The Chief Operating Officer at Cermak in 2007 was David Fagus ("Fagus"), and the Medical Directors were Dr. Sergio Rodriguez ("Rodriguez") and Dr. Connie Manella ("Manella"). (Pl. 56.1 Resp. ¶ 10.) Dr. Eileen Couture ("Couture") served as Director of Emergency Services at Cermak between 2000 or 2001 and 2004, after which she was transferred to Oak Forest Hospital but remained an attending physician at Cermak. (Pl. 56.1 Resp. ¶ 16.) In February 2007, Couture became Interim Medical Director at Cermak, and remained in that position until August 2008. (Pl. 56.1 Resp. ¶ 16.)

As of February 2007, Cermak employed five salaried dentists: Dr. Jack Liu ("Liu"), a Chinese-American male; Dr. Shandra Bundy-Smith ("Bundy-Smith"), an African-American female; Dr. Ronald Townsend ("Townsend"), an African-American male; Dr. Allen Knox ("Knox"), an African-American male; and Everett, a Caucasian female. (Pl. 56.1 Resp. ¶ 23.) Knox was the Dental Director, and all of the other dentists held the position of Dentist II. (Pl. 56.1 Resp. ¶ 23.)

Cook County first employed Everett as a dentist at Cermak on June 14, 1982. (Pl. 56.1 Resp. ¶¶ 1, 8.) She worked full-time at Cermak until 1990 or 1991, then worked half-time until 2005, when she once again began working full time. (Pl. 56.1 Resp. ¶ 6.) Throughout her career, Everett has been involved in several dental organizations, including: the Chicago Dental Society, where she served as branch President; the American Association of Women Dentists, where she served as President; the Illinois Dental Society, where she served as a delegate to the house of delegates; the American Dental Association; and Maytek, an organization that focuses on treating patients with HIV. (Def. 56.1 Resp. ¶ 12.) Membership in such organizations allows dentists to improve their dental skills. (Def. 56.1 Resp. ¶ 12.) Cermak hired Townsend on January 25, 1993, and he has always worked full time at Cermak. (Pl. 56.1 Resp. ¶ 56.) Knox conducted several evaluations of Townsend over the course of his employment and determined that his performance of his duties was quite sufficient and that he was a very good dentist. (Pl. 56.1 Resp. ¶ 69.) According to the 2003 Dental/Oral Surgery Individual Statistics, when Everett was working 60% time and Townsend was working full time, Everett completed 248 sessions and Townsend completed 284 sessions. (Def. 56.1 Resp. ¶ 8.)

Townsend began a part-time private dental clinic in 1990 or 1991. (Pl. 56.1 Resp. ¶ 58.) In 2004, his practice moved to a new location at 452 E. 75th Street. (Pl. 56.1 Resp. ¶ 58.) Townsend's private dental clinic made a $300 campaign contribution to the 8th Ward Regular Democratic Organization in September 2000. (Pl. 56.1 Resp. ¶ 59.) Townsend made this contribution to the 8th Ward because he purchased tickets from Knox for an 8th Ward fundraiser. (Pl. 56.1 Resp. ¶ 60.) Townsend does not know where the 8th Ward is located or whether Stroger's political base is in the 8th Ward. (Pl. 56.1 Resp. ¶ 60.) Townsend also made two campaign contributions totaling $225 to "Citizens for Lyle" in April 2006 and May 2006. (Pl. 56.1 Resp. ¶ 59.) Townsend is aware that his clinic's location at 452 E. 75th Street is within the 6th Ward and that Freddrenna Lyle ("Lyle") is the City of Chicago Alderman. (Pl. 56.1 Resp. ¶ 61.) Townsend also knows William Beavers, a former City of Chicago Alderman. (Pl. 56.1 Resp. ¶ 61.) Townsend's clinic did not make any other campaign contributions prior to the March 2007 layoffs. (Pl. 56.1 Resp. ¶ 59.)

II. Budget Shortfall

In 2007, Cook County had a budget shortfall of $500 million and decided to cut $130 million of that shortfall from the healthcare budget. (Pl. 56.1 Resp. ¶ 11.) On January 7, 2007, Stroger directed Simon to submit recommendations to trim the healthcare budget that would have the least impact on quality of care and provision of essential services. (Pl. 56.1 Resp. ¶ 12.) Stroger told Simon to submit these recommendations prior to the budget approval deadline of February 29, 2009. (Pl. 56.1 Resp. ¶ 12.) Simon then assembled a team of individuals to evaluate the healthcare facilities in order to effectuate $100 million in budget cuts. (Pl. 56.1 Resp. ¶ 13.) Once evaluations were complete, a group of directors would present their recommendations for restructuring to Simon and describe the impact of those recommendations. (Pl. 56.1 Resp. ¶ 13.)

Simon assigned Couture to evaluate all of the Cermak programs, including the Dental Department, on the basis of productivity, services provided, and patient numbers in order to identify which services were essential. (Pl. 56.1 Resp. ¶ 15.) Because the National Commission on Correctional Health Care standards for dentistry merely require that emergency dentistry be accessible to detainees, Couture recommended that Cermak serve only emergent needs. (Pl. 56.1 Resp. ¶ 24.)

In mid to late January 2007, Simon determined that the dental department at Cermak could be reduced to one dentist to address only emergency situations. (Pl. 56.1 Resp. ¶ 25.) On January 17, 2007, Simon met with Chief of Cook County Human Resources Kim Gilmore ("Gilmore") and Stroger's Chief of Staff Lance Tyson ("Tyson") to develop a selection process for non-union employees, including dentists, that would result in retaining the best possible employees. (Pl. 56.1 Resp. ¶ 19.) It was important to consider factors other than seniority because many times those individuals with the most seniority would perform less clinical and more administrative work, or would not have as much experience in a particular area. (Pl. 56.1 Resp. ¶ 20.)

Simon then directed Couture to determine who would be the most qualified candidate for the remaining dentist position. (Pl. 56.1 Resp. ¶ 21.)*fn2 If the recommended individual had the most seniority, then it was not necessary to conduct further interviews; if, however, the individual recommended did not have the most seniority, then the recommendation had to be based on objective criteria, such as productivity, management skills, evaluations, and hours worked. (Pl. 56.1 Resp. ¶ 21.) If a more senior individual had qualifications equal to the individual they were considering, then all of the medical directors, including Couture, were instructed that the most senior individual should be retained. (Pl. 56.1 Resp. ¶ 21.) It was not necessary to interview candidates where one individual was going to be retained and the director could make a determination based on the data and information available. (Pl. 56.1 Resp. ¶ 26.) Because only one dentist would be retained at Cermak, no Cook County rule required Couture to interview the dentists at Cermak prior to the layoffs. (Pl. 56.1 Resp. ¶ 26.)

In determining which dentist to retain, Couture considered each dentist's knowledge about necessary, emergent dental care, such as extractions, pain and suffering, infection, and decay. (Pl. 56.1 Resp. ¶ 30; D. 56.1 TAB 6, pp 74-76.) When Couture worked as Director of Emergency Services at Cermak and as an Emergency Room physician at Stroger, she became aware of certain work habits of Cermak dentists, including their responses to calls from ER physicians and complications resulting from their treatment. (Pl. 56.1 Resp. ¶ 29.) Prior to the layoff, Couture reviewed a report that was included in her report to Simon, and was likely made more recently than 2003. (Pl. 56.1 Resp. ¶ 33; D. 56.1 TAB 6, pp 68-69, 70-71.) She also consulted with several medical directors, but does not specifically recall anything that she said to them or they said to her, and threw away the notes that she had from those conversations when she left her position at Cermak in 2008. (Def. 56.1 Resp. ¶¶ 31-32; Pl. 56.1 TAB 10, pp. 59-61.) In making her decision, Couture did not speak with any of the then-current Cermak dentists regarding productivity, time management ability, or his or her desire to assume a leadership role. (Def. 56.1 Resp. ¶ 25.) Indeed, Everett neither interviewed with nor conversed with Couture prior to the layoff. (Def. 56.1 Resp. ¶ 21.) No one asked Everett to provide any information regarding her skills, abilities, and experience prior to the layoff. (Def. 56.1 Resp. ¶ 21.) Couture also did not consult with Knox or Fagus regarding her recommendation or review the Cook County Personnel Rules for Physicians and Dentists. (Def. 56.1 Resp. ¶¶ 26-27, 33.)

When preparing her recommendation to Simon, Couture considered recommending more than one dentist; however, she did not consider the selection of the remaining dentist to be a choice between Townsend and Everett. (Pl. 56.1 Resp. ¶ 27; Def. 56.1 Resp. ¶ 30.) Couture ultimately decided to recommend Townsend to be the dentist retained at Cermak based on her personal experience, her evaluation of the program, and recommendations of others. (Pl. 56.1 Resp. ¶ 34.) She thought it best to retain an individual with management experience and flexibility in providing dental care. (Pl. 56.1 Resp. ¶ 35.) In Couture's experience, Townsend had exhibited flexibility and knowledge by squeezing patients into his schedule for emergent care, always returning her calls, and having a grasp of systemic as well as individual patient problems. (Pl. 56.1 Resp. ¶ 36.)

Couture also determined that Townsend possessed greater leadership skills than Everett and could better reorganize the dental department. (Pl. 56.1 Resp. ¶ 38.) Townsend had experience serving as Acting Director of Dental Services ("Acting Director") on several occasions in Knox's absence. (Pl. 56.1 Resp. ¶ 37.) Although Everett could have informed Knox of her desire to serve as Acting Director in his absence, she never did. (Pl. 56.1 Resp. ¶ 68.) Moreover, while Everett prepared letters to management on five to ten occasions regarding clinical and staffing issues and served in a leadership role when a clinical emergency arose, she has no recollection of assuming such a role between 2005 and 2007. (Pl. 56.1 Resp. ¶ 70, 72; Def. 56.1 Resp. ¶ 10; Pl. 56.1 TAB 5, pp. 21-22.) Like all dentists at Cermak, Everett supervised the dental assistants who worked under her direction. (Pl. 56.1 Resp. ¶ 71.)

Couture was never aware of any political position or affiliation held by either Townsend or Everett. (Pl. 56.1 Resp. ¶ 45.) Everett admits that she has no knowledge that Couture was aware of Townsend's political affiliation, and has no knowledge the Couture based any of her decisions on race or gender. (Pl. 56.1 Resp. ¶ 49, 51.)

In January or February 2007, Couture submitted her report of recommendations to Simon, which described how the budget could be cut in order to retain necessary services. (Pl. 56.1 Resp. ¶ 40.) Couture included the budget reduction plans from the previous Bureau Chief in her recommendation. (Pl. 56.1 Resp. ¶ 28.) She never, however, provided any document explaining how she arrived at the decision to recommend Townsend. (Pl. 56.1 Resp. ¶ 43.) She advised Simon that she thought Townsend was the best qualified for the job in terms of productivity and experience with management. (Pl. 56.1 Resp. ¶ 42.) At the time that Couture made her recommendation, she was not aware that Everett was the most senior dentist at Cermak. (Def. 56.1 Resp. ¶ 37.)

Simon made the final decisions regarding the budge cut recommendations, and specifically who would be retained as a dentist at Cermak. (Pl. 56.1 Resp. ¶¶ 14, 41.) Simon did not know Everett or Townsend, however, and depended on Couture to objectively look at all of the information about the dentists and make her recommendation. (Pl. 56.1 Resp. ¶ 46; Def. 56.1 Resp. ¶¶ 22-23.) Simon did not consult with Knox or Fagus in making his determination, and Fagus is not aware of anyone other than Couture providing information to Simon regarding the dentists' performance prior to the layoff. (Def. 56.1 Resp. ¶¶ 26-28.) At no time did anyone ask Simon to keep a doctor, nurse, or dentist in office based on their personal preferences. (Pl. 56.1 Resp. ¶ 47.) Indeed, prior to the March 2007 layoffs, Townsend did not have conversations or interviews with Simon, Couture, Fagus, Knox, or anyone associated with the Cook County government regarding the reduction in force, his skills, productivity, leadership abilities, management experience, or any desire on his part to assume a leadership role at Cermak. (Pl. 56.1 Resp. ¶ 63.) Everett admits that she has no knowledge that Simon was aware of Townsend's political affiliation, and has no knowledge that Simon based any of his retention decisions on race or gender. (Pl. 56.1 Resp. ¶ 50.)

In February 2007, Cermak erroneously issued layoff letters to Liu, Bundy-Smith, and Knox that were subsequently rescinded on February 22, 2007. (Pl. 56.1 Resp. ¶ 53; Def. 56.1 Resp. ¶ 29.) In late February or early March 2007, Townsend told Everett that the two of them would be the remaining dentists at Cermak. (Pl. 56.1 Resp. ¶ 74.) Cermak subsequently laid off Liu, Bundy-Smith, and Knox, and then laid off Everett on March 29, 2007. (Pl. 56.1 Resp. ¶ 54.) On the Monday after her termination, Everett inferred from a conversation with Townsend that when Everett was laid off, Townsend believed that he would also be laid off because she was more senior than him. (Pl. 56.1 Resp. ¶ 55.)

On June 26, 2007, Fagus sent a letter to Everett explaining the basis for her layoff. (Pl. 56.1 Resp. ¶ 75.) He prepared the letter based on information obtained from Couture. (Pl. 56.1 Resp. ¶ 75.) On June 29, 2007, pursuant to Everett's request, Cook County conducted a hearing for the purpose of reviewing the decision to lay off Everett. (Pl. 56.1 Resp. ¶ 76.) The hearing officer later issued a decision upholding the layoff. (Pl. 56.1 Resp. ¶ 76.)

Later in 2007, because dental services at Oak Forest Hospital ("Oak Forest") were being eliminated, Couture and the CEO of Oak Forest decided to transfer Dr. Tom Prozorovski ("Prozorovski"), the Chief Dental Surgeon at Oak Forest, to provide dental services at Cemak. (Pl. 56.1 Resp. ¶ 64.) Prozorovski was originally borrowed to Cermak and paid out of Oak Forest's budget; in 2008, however, he was transferred to Cermak's budget. (Pl. 56.1 Resp. ¶ 64.) Prozorovski is a 47 or 48 year old Caucasian male who speaks four languages, including Spanish. (Pl. 56.1 Resp. ¶ 65.) For a short period of time in 2008 when the ...


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