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Vivian J. Renta, M.D v. County of Cook

January 26, 2011


The opinion of the court was delivered by: Judge Feinerman


Plaintiff Vivian Renta, formerly a pathologist at John H. Stroger, Jr. Hospital of Cook County, alleges in this lawsuit that she suffered adverse employment actions and ultimately dismissal due to discrimination and retaliation by her former supervisors, Defendants Russell Tomar and Marin Sekosan, and her former employer, Defendant County of Cook. In an opinion and order issued last year, familiarity with which is assumed, the court granted summary judgment against Renta on her First Amendment retaliation claim under 42 U.S.C. § 1983, to Cook County on Renta's Monell claims under 42 U.S.C. §§ 1981 and 1983, and to Sekosan on Renta's § 1981 retaliation claim. The court denied summary judgment on Renta's gender, race, and national origin discrimination claims against all Defendants under Title VII and §§ 1981 and 1983, on her § 1981 retaliation claim against Tomar, and on her Title VII retaliation claim against Cook County. See 2010 WL 3365942 (N.D. Ill. Aug. 19, 2010) (Gottschall, J.).

Invoking Fed. R. Civ. P. 59(e), Defendants have moved for reconsideration of the order insofar as it denied summary judgment. The only submission requiring extended discussion is Defendants' argument that they were unfairly disadvantaged by the court's failure to enforce Local Rule 56.1 with respect to evidence submitted by Renta on her race, gender, and national origin discrimination claims. Renta seeks to prove discrimination under the indirect McDonnell Douglas method, one element of which is that "'other similarly situated employees who were not members of the protected class were treated more favorably.'" 2010 WL 3365942, at *6 (quoting Fane v. Locke Reynolds, LLP, 480 F.3d 534, 538 (7th Cir. 2007)). Renta's summary judgment opposition brief identified several comparators. See Doc. 130 at 10-11. For support, the brief directly cited Renta's affidavit, not her Local Rule 56.1 statement of additional facts; in fact, Renta's Local Rule 56.1 statement (Doc. 131) did not reference the comparators at all. See 2010 WL 3365942, at *8. The court's summary judgment opinion acknowledged that this was procedurally improper, but declined Defendants' invitation to disregard the comparators, reasoning that Defendants "do not explain what prejudice they suffer by virtue of the court's consideration of the comparators," that Defendants "put forth no facts or argument suggesting that the persons in question are not meaningful comparators, or committed errors less serious than those committed by Renta," and that "while the prejudice to defendants in declining to strike Renta's comparators is slight, striking Renta's comparators would be fatal to her gender discrimination claim." Ibid.

In seeking reconsideration, Defendants contend that they did not specifically address Renta's comparators because they assumed, based on prior rulings from the Northern District of Illinois, that the court would not consider comparators that Renta's Local Rule 56.1 statement failed to reference. See, e.g., Byrd-Tolson v. Supervalu, Inc., 500 F. Supp. 2d 962, 966 (N.D. Ill. 2007) ("facts are properly presented through the framework of the Rule 56.1 statements, and not through citation in the briefs to raw record material"); Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000) ("supporting documents submitted with a motion that are not referred to in the statement of facts will be ignored"); Kaplan v. City of Chicago, 2004 WL 2496462, at *2 (N.D.

Ill. Nov. 4, 2004); Parsons Tanning Co. ex rel. Weinstein v. Schwartz, 2004 WL 1593909, at *1 (N.D. Ill. July 15, 2004). The court's decision to excuse Renta's noncompliance, Defendants assert, was unexpected and deprived them of the opportunity to submit evidence and argument to rebut Renta's factual and legal claims regarding the comparators. Defendants include such evidence and argument in their reconsideration motion.

At the threshold, Renta maintains that Defendants may not introduce new evidence in a reconsideration motion, noting that Rule 59(e) "does not provide a vehicle for a party to undo its own procedural failures, and . does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Renta's contention is unpersuasive. Defendants seek not to avoid their own procedural failures, but only to remedy the prejudice they suffered from Renta's procedural failures. And because Defendants' assumption that the court would enforce Local Rule 56.1 was not unreasonable, it cannot be said that their summary judgment papers "could and should have" presented evidence and argument regarding the comparators.

Accordingly, Defendants' motion is appropriate to the limited extent that is presents such evidence and argument. Considering Defendants' materials and Renta's substantive response thereto, the court concludes that Renta has failed to adduce evidence showing that similarly situated employees outside her protected classes were treated more favorably than she. Accordingly, Defendants are entitled to summary judgment on Renta's gender, race, and national origin discrimination claims.

A. Gender Discrimination Claims

To prove that she was similarly situated to an employee outside the protected class, a plaintiff "normally" must show "that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000); see also Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 479 (7th Cir. 2010). The plaintiff's showing must establish that the employees were similarly situated in all material respects. See Naik v. Boehringer Ingelheim Pharm., Inc., 627 F.3d 596, 600 (7th Cir. 2010); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000). "In determining whether two employees are similarly situated the court must look at all relevant factors . ." Radue, 219 F.3d at 617.

Renta's comparators for her gender discrimination claim are five male pathologists: Defendant Sekosan, Gerardo Fronda, Ephraim Axelrod, Bourke Firfer, and John Kennedy. Renta contends that those pathologists were not disciplined or terminated even though they committed diagnostic errors similar to the nine errors that preceded Renta's suspension, peer review, and dismissal.

It is doubtful that Defendant Sekosan is an appropriate comparator. As Director of Anatomical Anthology in the Department of Pathology, Sekosan was among Renta's supervisors, and settled law holds that supervisors generally are not similarly situated to their subordinates. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002); Connolly v. Ala Carte Entm't, Inc., 2002 WL 31248497, at *5 (N.D. Ill. Oct. 7, 2002). In any event, all five male comparators-Sekosan and the four others-are not similarly situated because Renta has failed to present evidence showing that they committed actual diagnostic errors with nearly the same frequency as she did.

Renta's affidavit asserts that Fronda and Sekosan committed five diagnostic errors comparable to hers, that Axelrod and Firfer committed four, and that Kennedy committed one. Defendants respond, supported by Sekosan's affidavit, that with one exception (a misdiagnosis by Axelrod), the errors Renta attributes to her comparators were not "errors" at all. Instead, Sekosan explains, the comparators' initial diagnoses were revised or modified after Intradepartmental Consensus Conferences, Interdepartmental Treatment and Planning Conferences, or consultations with outside physicians-approved procedures in which multiple doctors are consulted to reach consensus on diagnosis and/or treatment in difficult cases. In those instances, Sekosan avers, the hospital's ordinary consultative processes have been followed and the revision cannot be characterized as the correction of an "error." By contrast, Sekosan states, the nine errors that led to Renta's peer review, suspension, and termination were discovered through the quality assurance process, such as during postoperative biopsies or when other physicians caught an incorrect diagnosis. As the court's summary judgment opinion noted in articulating the undisputed facts:

In May 2003, while conducting a random quality assurance review of pathology cases, Sekosan and two other pathologists uncovered a misdiagnosis made by Renta. Later that same month, Sekosan uncovered another misdiagnosis by Renta. Renta 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 [Peer Review Committee]. 2010 WL 3365942 , at *3 (citations omitted); see also id. at *2 (deeming admitted paragraphs 29-32 and 35 of Defendants' statement of undisputed facts, which summarized certain of Renta's diagnostic errors).

Renta does not (and could not) dispute the summary judgment opinion's statement that "nine critical errors" preceded the suspension and peer review process that resulted in her dismissal. Nor does Renta dispute Defendants' contention that those nine errors were discovered through quality assurance and not through the approved consultative processes described above. And Renta expressly admits that "[m]ost of the errors" she attributes to the male comparators "were not discovered as a part of quality assurance, but instead through conferences discussing diagnosis and treatment." Doc. 131-8 at 7, ΒΆ 26; see also Doc. 130 at 11 (acknowledging that the "critical errors" Renta attributes to her male comparators "are based simply on Dr. Renta's own practice in the department and on various conferences as the OB/GYN oncology conference, the breast conference, and the tumor board, and are without the benefit of data derived from quality assurance protocols") (citations omitted). Renta has identified only two exceptions-the one error by Axelrod acknowledged by ...

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