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Daphne Livsey v. Adventist Lagrange Memorial Hospital

March 9, 2011

DAPHNE LIVSEY, PLAINTIFFS,
v.
ADVENTIST LAGRANGE MEMORIAL HOSPITAL, A/K/A ADVENTIST HEALTH SYSTEMS/ SUNBELT, INC. DEFENDANTS.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

Daphne Livsey filed suit claiming that Adventist violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., by discriminating against her based on her race and her gender, and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. by discriminating against her based on her age. Ms. Livsey also alleges a claim for hostile work environment under Title VII as well as a retaliation claim. Adventist LaGrange Memorial Hospital ("Adventist") moves for summary judgment as to all of the claims. For the reasons stated below, Adventist's motion for summary judgment is granted as to all claims.

I. Facts

General Background

Adventist, a member of Adventist Midwest Health, employs over 1,100 employees at its 230 bed acute-care hospital located in LaGrange, Illinois. Ms. Livsey, a resident of Glen Ellyn, Illinois, is a former employee of Adventist who was terminated on December 17, 2008.

Prior Litigation and Release

In 2004 and part of 2005, Ms. Livsey was employed at Adventist Hinsdale Hospital, which is an affiliate of Adventist. In October 2005, Ms. Livsey transferred from Adventist Hinsdale Hospital to Adventist. During 2005, prior to her transfer from Adventist Hinsdale Hospital to Adventist, Ms. Livsey filed two separate charges of discrimination with the EEOC against Adventist Hinsdale Hospital. She subsequently filed a lawsuit against Adventist Hinsdale Hospital asserting claims in connection with the second of the two EEOC charges filed in 2005. That lawsuit was pending in the United States District Court for the Northern District of Illinois, Eastern Division and was assigned case number 07 C 5261.

Pursuant to a settlement and release in that case, Adventist, as an affiliate of Adventist Hinsdale Hospital, was released and discharged by Ms. Livsey from all claims concerning any act or omission prior to February 15, 2008. Thus, the claims presently before this court concern only the time period of Ms. Livsey's employment with Adventist from February 16, 2008, through her termination on December 17, 2008.

Ms. Livsey's Current Claims Against Adventist

On April 17, 2008, Ms. Livsey filed her first charge of discrimination against Adventist before the EEOC ("First Charge"). The First Charge was assigned charge number 440-2008-04959, and complains only of race, sex, and age discrimination, and retaliation; it does not complain of or mention the terms harassment or hostile work environment. In December 2008, Ms. Livsey filed her second charge of discrimination against Adventist before the EEOC ("Second Charge"). The Second Charge was assigned charge number 440-2009-01385 and complains only of retaliation; it does not complain of or mention the terms harassment or hostile work environment. At the time Ms. Livsey filed the First Charge, the Second Charge, and the Complaint in this litigation she was represented by her attorney, Michael Smith. Mr. Smith is the same attorney who represented her in the prior litigation against Adventist Hinsdale Hospital that resulted in the previously-mentioned release.

In this lawsuit Ms. Livsey purports to complain of eight different alleged events at Adventist between February 15, 2008 and December 17, 2008. Specifically, she alleges that: (1) she was subjected to an unlawful hostile work environment and harassment; (2) her schedule in February and March of 2008 was unfair because she had to take more unpaid time off than others; (3) in August 2008, she was initially granted her birthday off, but then forced to work on that day for a discriminatory or retaliatory purpose; (4) she received two disciplinary write-ups in August 2008 for a discriminatory or retaliatory purpose; (5) she received two disciplinary write-ups and a suspension in October 2008 for a discriminatory or retaliatory purpose; (6) she did not receive an annual raise in October 2008 for a discriminatory or retaliatory purpose; (7) she submitted resumes for open positions at Adventist, but did not get those positions; and (8) she was terminated in December 2008 for a discriminatory or retaliatory purpose (Livsey Dep. at 171-175, 218, 245-46).

Ms. Livsey is now proceeding pro se in this litigation. During her deposition on June 10, 2010, her counsel, Joshua D. McCann, stated on the record following the lunch-break: "I've conferred with Michael Smith and [Ms. Livsey]. We have recommended to [Ms. Livsey] that she sign the stipulation to dismiss [this litigation with prejudice]. She has elected not to do so. Under the circumstances, we cannot go forward with the case and we will be withdrawing as soon as possible without causing undue hardship or prejudice to [Ms. Livsey]." Citing "an impasse in the[] relationship [between counsel and Ms. Livsey] due to this evidence which has caused an irretrievable breakdown in the direction of this case which inhibits counsel from being an effective advocate of the claims of [Ms. Livsey]," Ms. Livsey's counsel subsequently withdrew from this litigation on June 22, 2010, pursuant to court order.

Ms. Livsey's Hostile Environment Claim

At all times relevant to the complaint, Ms. Livsey worked at Adventist's main hospital campus in La Grange, Illinois, as a full-time radiology services assistant, performing such tasks as hanging x-ray films for the hospital's radiologists, answering calls, registering patients, making copies, and running small errands as needed by the radiologists. Ms. Livsey worked the second shift from 2:30 p.m. to 11:00 p.m. There were no other full-time radiology services assistants working the second shift. Four other full-time radiology services assistants worked the first shift from 6:00 a.m. to 2:30 p.m. Janet Narish, Adventist's Radiology Supervisor, supervised the full-time radiology service assistants. Ms. Livsey admits that Ms. Narish was a "very nice person", who was a "very flexible manager when it [came] to schedule modifications to [Ms. Livsey], and that she did not have any concern or issue with Ms. Narish."

Ms. Livsey does not complain about any conduct by anyone from her second shift. Because of their different work schedules, any overlap Ms. Livsey had with the four full-time radiology service assistants from the first shift was a "minimal part of [her] day." However, Ms. Livsey claims that her co-workers from the first shift: (i) left her what she perceived as hostile notes, and (ii) gave her the "cold shoulder" by being quiet when she walked in the room, gave her evil looks, and did not say "hello" to her when she greeted them. Ms. Livsey does not complain about any other alleged hostility from her co-workers and admits that she has no evidence that the alleged "hostile" treatment she claims to have received from her co-workers from the other shift was motivated by her age, race or gender. According to Ms. Livsey, she believes that her co-workers from the other shift treated her this way because they were upset about an article in a local paper called "The Doings" about her prior litigation against Adventist Hinsdale Hospital. Ms. Livsey concedes that it is equally possible that they treated her this way because they did not like her or like working with her. She further admits that none of her co-workers, supervisors, or any representative from Adventist's human resources department ever made any comments, wrote any notes, or left any messages that were based on or in any way made reference to her age, race, or gender.

With respect to the "cold shoulder" allegations, after July 2008, the minimal overlap Ms. Livsey had with her co-workers from the first shift had ended as Ms. Livsey arrived at work for the start of the second shift after her co-workers for the first shift had left for the day. As to the perceived "hostile" notes to her from her co-workers on the first shift, Ms. Livsey admits that the shifts left notes for each other as necessary. For example, if work did not get done on one of the shifts, that shift would leave a note for the next shift explaining what needed to be done.

According to Ms. Livsey, she received fewer than 20 notes from her co-workers that she considered negative. Livsey admits that the first two pages of Livsey Dep. Ex. 7 are representative of and similar to the notes she received on the second shift from the first shift that she considered to be "hostile." The first note stated, "Who did [Iron Mountain] on Friday evening and put every folder in the wrong spot? Clearly marked for Tuesday 5/27 and half were in reschedules and half in Thursday's slot. Thanks for the inconvenience and wasting half an hour of my morning." The second note stated, "This is halfway done. I refuse to do the rest.

[heart sign], Rich." Rich was one of Ms. Livsey's co-workers who worked the first shift.

Ms. Livsey also claims that on two occasions she received a note containing profanity. One such note stated "You fucked up." Ms. Livsey complained to Ms. Narish about the profanity and after her complaint, Ms. Livsey never received another note with profanity. To the extent Ms. Livsey received additional notes after her complaint about profanity to Ms. Narish, they were similar to or of the same type as the first two pages of Livsey Dep. Ex. 7 and described above. On June 3, 2008, Ms. Narish held a 30-minute meeting with the radiology services assistants from the first and second shifts and an Adventist Human Resources representative in attendance. She emphasized that any messages left by co-workers for one another must be professional and respectful. She further instructed the radiology assistants to contact her if necessary and noted that disciplinary action would follow if the assistants communicated with one another unprofessionally.

Ms. Livsey also claims that, in February 2008, a janitor at Adventist responded to Ms. Livsey's question "Where is my candy?" by grabbing his "crotch" and saying or suggesting, "Here's your candy." Ms. Livsey complained about the incident to Garry Giertuga, Director of HR for Adventist Hinsdale Hospital. Following her complaint to Mr. Giertuga, Ms. Livsey admits that no similar incident ever occurred again and the janitor never bothered her again. Following Ms. Livsey's complaint, Adventist met with the janitor in question and disciplined him for making this gesture by issuing him a written warning. To date, no future incidents have been reported to Adventist involving the janitor concerning Ms. Livsey or anyone else.

Ms. Livsey's Termination

On October 23, 2008, Ms. Livsey sent an email to Janet Narish and Garry Giertuga stating "I, Daphne Livsey, will not be into work today, nor the rest of the week. I will be taking my FMLA as soon as the doctor forwards all papers to Sharon, the nurse. Sorry for any inconvenient [sic] this may have caused. However my personal health is at stake. The mental anguish i [sic] endure during my tenor [sic] with Adventist Health Care for the past 4 years has been drastic. My ...


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