Appeals from the United States District Court for the Southern District of Illinois. No. 04 C 4162-G. Patrick Murphy, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge
ARGUED SEPTEMBER 15, 2008
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
Archie D. Thompson, Jr. was the only African-American paramedic in the Southern Illinois Regional Emergency Medical System. He was reduced to probationary status after he assisted a diabetic patient in her home but did not call medical control after the patient declined further treatment, even though other paramedics had handled diabetic patient responses the same way and were not disciplined. A jury agreed with Thompson that he was placed on probation only because of his race and awarded him $500,000. Memorial Hospital of Carbondale appeals the jury's verdict against it. Although it defended its case at trial on the basis that race was not the reason for the probation decision, it argues different theories on appeal. We conclude that none warrant reversal. Because it knew before trial that whether Memorial and Thompson had a contractual relationship was a factual question but it did not raise the issue at trial, we affirm the judgment on Thompson's 42 U.S.C. § 1981 claim. A jury could have drawn the inference that Paula Bierman, the Emergency Medical System Coordinator, had a singular influence on the probation decision, so the admission of her racial animus was not an abuse of discretion. And in light of the fact that it did not argue to the jury that Thompson had failed to suffer a materially adverse employment action, we deny its request to set aside the verdict on that basis. We do, however, find that remittitur of the $500,000 verdict to $250,000 is warranted. Finally, we deny Thompson's cross appeal of the grant of summary judgment against him on his claims of hostile work environment and constructive termination, as the circumstances here did not rise to those levels.
Memorial Hospital of Carbondale is responsible for medical control of the Southern Illinois Regional Emergency Medical System. The Jackson County Ambulance Service (JCAS) served the Southern Illinois Regional Emergency System. Archie Thompson became a JCAS paramedic in 1998. Thompson was the only African-American paramedic with JCAS and the only African-American who had worked as a full-time paramedic in the system.
On September 29, 2003, Thompson responded to a call for a diabetic emergency, to an address he recognized as the site of a previous diabetic call. When he arrived, he found a woman lying on her bed and immediately checked her blood glucose level. He administered D50, a dextrose solution, and the woman immediately came to. Thompson told her that the ambulance could take her to the hospital, but the woman declined and asserted that she did not want further assistance. After the woman signed a form refusing further medical treatment, Thompson returned to his ambulance base.
When he arrived back at his base, he spoke with Tim Brumley, the JCAS supervisor on duty at the time. Brumley asked Thompson whether he had called medical control before accepting the patient's refusal of further treatment, and Thompson responded that he had not.
Brumley told Thompson that he should have contacted medical control because the call had been an advanced life support call where Thompson had started an IV and administered the dextrose solution. Thompson said he would make the call in the future. The next day, Thompson responded to a diabetic call, and he called medical control before he returned to his base.
The System had protocols in place for different scenarios, including responses to diabetic emergencies. The protocol in effect in September 2003 provided that upon responding to a diabetic emergency call, a para-medic should call medical control after administering a dextrose solution and before leaving the patient. This protocol, which had been updated about two years earlier, was not available in up-to-date form in Thompson's ambulance or at his base in September 2003, and Thompson maintained he did not know about it.
After Brumley spoke with Thompson, he checked with other paramedics to assess whether they had also failed to contact the hospital under similar circumstances. Paramedic Aaron Glen, who is white, told Brumley that he had handled a diabetic call the same way that Thompson had, and another paramedic acknowledged that he might have handled a diabetic call the same way. Brumley then contacted Paula Bierman, who was the System's Emergency Medical System Coordinator. She began in that role in 1992. Brumley informed Bierman that there was a problem with paramedics' responses to diabetic calls. He described the September 29, 2003 diabetic emergency in which Thompson had not called medical control. Bierman asked Brumley to write an incident report, which Brumley did. Within a few days, Brumley also informed Bierman that Glen said he had been handling diabetic calls the same way as Thompson had.
On October 3, 2003, Bierman wrote on the bottom of Brumley's incident report that system protocols had not been followed regarding contacting medical control in diabetic emergencies. Bierman also wrote a one-page letter to Dr. Daniel Doolittle, the Medical Director at Memorial, a position he assumed in 2003. Bierman's letter began, "Archie Thompson handled this call with a total disregard for System protocols and requirements." She wrote that his failure to know the protocol was "an unacceptable excuse" and also that Thompson had failed to maintain proficiency in drip rates and dosages as evidenced by a recent examination where he missed ten of twelve questions, and that the failure was serious and warranted immediate disciplinary action. Bierman also informed Dr. Doolittle that a memorandum had been sent to all JCAS personnel reinforcing the importance of following protocol and notifying them that failure to comply is cause for dismissal.
Within a few days of receiving Bierman's letter, Dr. Doolittle specifically asked Bierman whether she was aware of anyone else who had not followed the protocol, and Bierman responded "no." Dr. Doolittle also asked Bierman to run reports to check whether any other para-medic had violated this protocol. Bierman reported back that she did not locate any other instances.
Dr. Doolittle did speak with Gerald Lence, a JCAS supervisor who said he thought Thompson should be suspended, and two other supervisors, one of whom thought other paramedics had failed to follow the diabetic protocol but was not sure.
On October 6, 2003, Bierman drafted and signed Dr. Doolittle's initials on a "Report of Disciplinary Action" which stated that Thompson is "removed from primary paramedic duties until further notice and investigation is complete." The reason given was twofold:
(1) Thompson initiated advanced life support procedures and discontinued treatment on a hypoglycemic patient without contact with medical control, and (2) Thompson was unable to demonstrate competency in the system drug administration and had missed ten out of twelve drug calculation questions on a quiz. All the other para-medics took the drug calculation quiz as well, but Bierman acknowledged at trial that despite requests to produce the tests, the only test that could be found was Thompson's.
Bierman and Dr. Doolittle met with Thompson on October 6, and two days later, Thompson received a letter stating that he had been placed on paid probation for three months. The letter noted the violation of protocol and the drug calculation test score, and it also mentioned that Thompson had weakness in communication skills and that his radio reports lacked organization and failed to relay important medical information and assessment. Bierman sent an email the same day to the JCAS paramedic supervisors advising them that Thompson "will undergo strict disciplinary action." The email said he had been "reduced to probationary status" and directed that supervisors were to observe Thompson's performance and not intervene unless absolutely necessary. In addition, supervisors were not to give Thompson feedback on how he handled the calls except to protect a patient, even if he requested feedback. The reduction to probationary status meant that Thompson had to be supervised on all calls. His work schedule also would be altered with various days and shifts, and additional testing or skill demonstration could be imposed.
Thompson was the only paramedic in the system placed on probation for violating the diabetic protocol, although Dr. Doolittle, Brumley, and Dottie Miles, the Director of the Ambulance Service, all testified that violating the protocol was a serious matter and that anyone who violated the protocol should be disciplined in the same manner. Thompson testified that during his probation, while he was supervised by Lence, he was exposed to a homeless person's blood and that even though he asked for assistance because the person was bleeding, no supervisors assisted him.
Thompson also testified that before he became a full-time paramedic, Bierman called him into her office and said he was about to become a paramedic and could not do what other paramedics do. He recounted at trial: "And I looked at her and I said, Paula, what do you mean? Is it because I'm black I can't do what other para-medics do? She said, yes, it's because you are black you can't do what other paramedics do, and I'll be watching you." Thompson stated that he was shocked, humiliated, and in disbelief after the conversation. On another occasion, he said, Bierman threatened him that he would be hearing from her and said that because he was black, he would not be able to do what other paramedics did. He also stated that on one occasion in the hospital emergency room, Bierman criticized him, testifying, "[a]nd if my memory serves me right, and I know it does, she reminded me again that I couldn't do what other paramedics do because I am black." Thompson ...