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Renta v. County of Cook

August 19, 2010

VIVIAN J. RENTA, M.D., PLAINTIFF,
v.
COUNTY OF COOK, RUSSELL TOMAR, M.D., INDIVIDUALLY, AND MARIN SEKOSAN, M.D., INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Vivian J. Renta ("Renta") was employed by John H. Stroger, Jr. Hospital of Cook County (the "Hospital") from 1995 until 2004, when the Cook County ("County") Board voted to terminate her membership and clinical privileges. Renta subsequently brought this suit against the County, Russell Tomar ("Tomar"), and Marin Sekosan ("Sekosan") (collectively, "defendants") pursuant to 42 U.S.C. §§ 1981 and 1983 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Renta asserts claims of race, national origin, and gender discrimination and retaliation. This case is presently before the court on defendants' motion for summary judgment and defendants' motion to strike certain factual statements by Renta in opposition to defendants' motion for summary judgment. For the reasons stated within, defendants' motion is granted in part and denied in part.

I. DEFENDANTS'MOTION TO STRIKE

Before addressing the factual background of this case, the court addresses defendants' motion to strike, by which defendants ask the court to disregard certain of:

Renta's responses to defendants' statement of facts; her statements of additional fact; and factual representations she makes in briefing but not in her statements of additional fact. (Doc. 140.)

A. Renta's Responses to Defendants' Statement of Facts

Defendants urge the striking of several of Renta's responses to their statements of fact for the following reasons. First, defendants contend that Renta's affidavit, which she offers as evidentiary support for several of her responses, contradicts her sworn testimony and therefore should be disregarded, see Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir. 2005), leaving several responses to defendants' statements of fact unsupported. Defendants assert that Renta's affidavit contradicts her deposition testimony regarding whether Tomar knew of an EEOC charge filed by Renta, which is a question relevant to her claim that he retaliated against her, discussed at greater length in Section IV within. Having reviewed the cited parts of Renta's affidavit and deposition transcript, the court does not find a contradiction between the two, and accordingly rejects defendants' first argument.

Second, defendants assert that Renta, in response to their statements of fact, raises a "dispute" not by contradicting their statements of fact, but rather by adding factual detail not part of the original statement of fact. Renta's practice is not in strict conformity with the local rules, which require additional factual detail to be set forth separately. See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). However, the court declines to strike Renta's responses that add additional factual assertions because defendants do not explain adequately what prejudice they suffer by Renta's addition of factual material in her responses.

Third, defendants move to strike certain responses to their statements 12 and 52, in which Renta asserts that the statement of fact is "disputed" without citation to any evidence. Those responses do not cite any evidence in support and are deemed admitted. Senske v. Sybase, Inc., 588 F.3d 501, 503-04 n.1 (7th Cir. 2009).

Fourth, defendants move to strike certain responses in which Renta states only "disputed" and re-cites the same evidence cited by defendants or cites new evidence without explaining how it raises a disputed issue of fact. For disputes raised by Renta without any explanation of the dispute, she bears the risk that any dispute will be disregarded. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991); Ammons, 368 F.3d at 817. The court strikes Renta's responses to defendants' statements 10, 11, 15, 21, 36, 37, and 39 and deems those statements of fact admitted.

Fifth, defendants object that some of Renta's responses state only "disputed," and cite a multi-page document without citing a specific page. For example, Renta's responses to defendants' statements 29, 30, 31, 32, 35, and 41, all state "Disputed" and cite the entirety of defendants' Exhibit 24, a nineteen-page report. Such citations fail to comport with the Seventh Circuit's standards for opposing summary judgment, see Ammons, 368 F.3d at 817-18, and with this court's standing order on motions for summary judgment, see Standing Order 3 (noting that citations "must be specific. For example, a reference to a transcript that does not include the page and line numbers is not a 'specific' reference. The court will not search a multi-page document nor guess as to which language in a document the party relies upon." (emphasis in original)). Given the opportunity to respond to defendants' motion to strike, and an opportunity to rectify the deficiencies in her responses, Renta offers an explanation of each of her responses but, critically, offers no specific page numbers in her cited Exhibit 24. (Doc. 52 at 11-13.) Accordingly, the court deems defendants' statements 29, 30, 31, 32, and 35 admitted.*fn1

B. Renta's Evidence in Support of her Statement of Additional Facts

Defendants also move to strike six exhibits that Renta produces in response to defendants' motion for summary judgment, and her statements of additional facts based on those exhibits. Each of the exhibits at issue is pertinent only to Renta's First Amendment retaliation claim, which she brings pursuant to § 1983. The court resolves this part of defendants' motion in addressing Renta's First Amendment retaliation claim in section IV.A within.

C. Facts Proffered in Renta's Brief

Last, defendants move to strike certain factual statements in Renta's brief in opposition to defendants' motion for summary judgment on the ground that the statements are not contained in Renta's statement of additional facts. The court may disregard factual assertions in briefing that are unsupported by citations to statements of fact. Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1108-09 (7th Cir. 2004). However, with one exception discussed in regard to Renta's gender discrimination claim within, defendants do not identify any factual assertions contained solely in Renta's brief. The court declines to strike facts that are not specifically identified.

Defendants' motion to strike is granted in part and denied in remaining part.

II. BACKGROUND

Renta began work at the Hospital in 1995 as a part-time pathologist. (Defs.' Stmt. ¶ 10.)*fn2 Tomar was Chairman of the Department of Pathology at the Hospital from 1999 until February 2007. (Id. ¶ 3.) Sekosan has been a Director of Anatomical Pathology in the Department of Pathology at the Hospital since 2001. (Id. ¶ 4.)

In 1996, Renta was suspended with pay, although the parties dispute the reason for her suspension. Upon completion of her suspension, Renta was reinstated to clinical duties, albeit with supervision. (Id. ¶¶ 10-11.) In the following years, several doctors at the Hospital complained that Renta breached Hospital protocol. The complaining doctors asserted that at several conferences Renta made presentations in which she misrepresented the complaining doctors' diagnoses and voiced her disagreement with those diagnoses without first consulting the doctors who originally made the diagnoses. (Id. ¶¶ 14-16.) Renta concedes that presentations revealing such disagreement were against Hospital protocol. (Id. ¶ 14.) Believing that Renta had difficulty relating to her colleagues, Tomar referred her to the Peer Review Committee (the "PRC") in 2001, but the PRC recommended that no disciplinary action be taken against Renta.*fn3 (Defs.' Stmt. ¶ 18.) Renta continued to work at the Hospital and, in September 2002, Tomar and Sekosan signed Renta's re-credentialing papers. (Id. ¶ 21.)

On February 27, 2003, a Hospital doctor wrote a memorandum to Sekosan, copying Renta, complaining of Renta's lack of respect for her colleagues and specifically stating that Renta was "getting out of hand...." (Id. ¶ 25.) The next day, Renta filed an Equal Employment Opportunity Commission ("EEOC") charge in which she complained of discrimination based on her gender and national origin, Puerto Rican. (Id. ¶ 26.)

In May 2003, while conducting a random quality assurance review of pathology cases, Sekosan and two other pathologists uncovered a misdiagnosis made by Renta. (Id. ¶ 29.) Later that same month, Sekosan uncovered another misdiagnosis by Renta. (Id. ¶¶ 30-32). Sekosan then consulted with Tomar, who determined that Renta had committed "nine critical errors" over the previous two years, and, on May 22, 2003, suspended Renta from clinical duties and referred her to the PRC. (Defs.' Stmt. ¶ 33; Pl.'s Stmt. ¶ 21.)

The PRC conducted an investigation that included interviews not only of Renta, Tomar, and Sekosan, but also of every attending pathologist in the Department of Pathology, each of which lasted an hour or more. On September 9, 2003, the PRC recommended that Renta be allowed to return to her clinical duties immediately, but also that she undergo a period of observation regarding the accuracy of her diagnoses and counseling for her behavioral issues. (Defs.' Stmt. ¶¶ 34-35; see also Pl.'s Stmt. ¶¶ 22, 25-26.) Rachel Rubin presented the PRC's recommendation to the Executive Medical Staff ("EMS"), so that the EMS could consider the PRC's recommendations and make a recommendation regarding the proper discipline. (Defs.' Stmt. ¶¶ 36-38.) Defendants Tomar and Sekosan were both members of the EMS. (Id. ¶ 37.)

The EMS recommended the revocation of Renta's medical staff membership and clinical privileges--the harshest penalty Rubin and an EMS member could remember the EMS issuing--due to Renta's unprofessional behavior and lack of professional competence. (Id. ¶¶ 38-39; Pl.'s Stmt. ¶ 25). This EMS member could not recall the EMS ignoring the PRC's recommendation in any other case (Defs.' Stmt. ¶ 27), and said that the EMS would ignore the PRC's recommendation only on the motion of an EMS member familiar with the circumstances of the case (id. ¶ 28). Minutes of EMS meetings are normally kept, but none exist for the meeting at which the EMS recommended the termination of Renta's privileges. (Id. ¶ 30.) The entire EMS proceeding took one hour and forty-seven minutes. (Id. ¶ 34.)

The EMS recommendation was then presented to a peer review hearing committee (the "PRHC") (id. ¶ 39), which heard over 50 hours of testimony regarding Renta spanning 16 days (id. ¶ 40). During the PRHC hearings, Renta was afforded counsel and a full opportunity to present relevant evidence. (Defs.' Stmt. ¶ 39.)

The PRHC determined that Renta had failed to meet her burden to show that the EMS's recommendation lacked a factual basis or was arbitrary, capricious, or unreasonable (id. ¶¶ 42-43), which Renta was required to prove even though no record (such as minutes) existed to document the EMS's recommendation. On June 10, 2004, the EMS voted unanimously to reaffirm its recommendation, which was then forwarded to the Hospital's Joint Conference Committee, which concurred unanimously with the EMS. (Id. ¶¶ 44-46.) The recommendation was then forwarded the Cook County Board, which terminated Renta's medical staff membership and clinical privileges effective September 21, 2004. (Id. ¶ 47.)

III. LEGAL STANDARD

Summary judgment is warranted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Turner v. Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010); Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009). In evaluating a defendant's motion for summary judgment, the court must first determine whether the defendant has demonstrated the absence of a genuine issue of material fact and so is entitled to judgment as a matter of law. See Beard v. Banks, 548 U.S. 521, 529 (2006). If the defendant has done so, the court next inquires whether the plaintiff has established a genuine issue of material fact regarding each of the elements of her case. Id.; Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999). If not, then the court should enter judgment as a matter of law. Beard, 548 U.S. at 529.

IV. ANALYSIS

Defendants argue that they are entitled to summary judgment on Renta's:

(A) First Amendment retaliation claim (Count I); (B) race and gender discrimination claims (Counts II, III, IV, and V); (C) Title VII and ยง 1981 retaliation claims (Counts II and III); (D) claims insofar as they seek to impose Monell liability (Counts I, II, IV, and V); and (E) claims ...


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