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Alex Gu v. Provena St. Joseph Medical Center

February 29, 2012

ALEX GU, PLAINTIFF,
v.
PROVENA ST. JOSEPH MEDICAL CENTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' motion for summary judgment. For the reasons stated below, the motion is granted in its entirety.

BACKGROUND

Plaintiff Alex Gu (Gu) alleges in his pro se complaint that he is a Surgical Assistant. Gu contends that he began working at Defendant Provena St. Joseph Medical Center (Provena) in January of 2000. Gu contends that in 2004, his contract was not renewed and that no reason was given for not renewing his contract. Gu indicates that after his contract expired, he worked at Provena as an independent Surgical Assistant. In August 2009, Gu allegedly assisted in surgery and billed the patient's insurance company, but Gu was allegedly unable to get full compensation for performing the surgery. Gu allegedly contacted the patient and asked her to contact the insurance company and request a reasonable payment for Gu. Gu was then allegedly told that his surgery privileges at Provena had been revoked permanently. Gu also alleges that in 2010, he received an offer to renew his surgery privileges, but was informed that any physician working with Gu must cover him under the surgeon's malpractice insurance.

Gu includes in his pro se complaint claims alleging violations of the Fifth and Fourteenth Amendments (Count I), retaliatory discharge claims (Count II), and employment discrimination claims, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq. (Count III). Defendants now move for summary judgment on all claims.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" of material fact in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

I. Constitutional Claims

Defendants argue that Gu has failed to point to sufficient evidence to support a claim based upon any constitutional violation. In general, the federal Constitution provides protections against governmental action, rather than against actions by private individuals. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 619 (1991)(stating that "[t]he Constitution's protections of individual liberty and equal protection apply in general only to action by the government"); Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009)(stating that "[t]he Constitution prevents governmental actors from forbidding, or penalizing, speech that is protected under the first amendment" and that a plaintiff can recover from a "private actor who has conspired with" or acted "in concert" with state actors); Dunham v. Frank's Nursery & Crafts, Inc., 919 F.2d 1281, 1283 (7th Cir. 1990)(stating that "the right to equal protection of the laws expressed in the fourteenth amendment has been found by implication in the due process clause of the fifth amendment, which applies to federal action"); Downie v. Powers, 193 F.2d 760, 765 (10th Cir. 1952)(stating that [i]t cannot be doubted that the Fourteenth Amendment erects no shield against merely private conduct, however discriminatory or wrongful"); Richards v. Duke University, 480 F.Supp.2d 222, 238-39 (D.D.C. 2007)(stating that "[g]enerally, constitutional protections of individual rights and liberties only apply to actions by governmental bodies").

In the instant action, Gu has not pointed to evidence showing Defendants are state or federal actors. Nor has Gu pointed to evidence showing that Defendants were acting in concert with a governmental actor or acting in any manner that would implicate federal or state constitutional protections. Gu admits, pursuant to Local Rule 56.1, that Provena is a private hospital. (R SF Par. 2). Nor does Gu dispute that Defendants Beth Hughes and Mary Alberts are employees of Provena. (R SF Par. 1); (Compl. Par. 5). Therefore, Gu has failed to point to sufficient evidence to show a violation of the Fifth or Fourteenth Amendments by Defendants, and therefore, Defendants' motion for summary judgment on the constitutional claims in Count I is granted.

II. Retaliatory Discharge Claims

Defendants argue that Gu has failed to point to sufficient evidence to support a retaliatory discharge claim. For a retaliatory discharge claim brought under Illinois law, a plaintiff must establish: "(1) [h]e has been discharged; (2) in retaliation for h[is] activities; and (3) the discharge violates a clear mandate of public policy." Thomas v. Guardsmark, LLC, 487 F.3d 531, 535-36 (7th Cir. 2007). In the instant action, it is undisputed that Gu was not employed by any of Defendants. Although Gu indicates in response to some of Defendants' statements of material facts that he denies such facts, Gu fails in his response to cite to the record in support of his denials, and such facts are therefore deemed undisputed pursuant to Local Rule 56.1. (R SF Par. 1, 3-5, 7); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008)(stating that "[d]istrict courts are entitled to expect strict compliance with Rule 56.1")(internal quotations omitted)(quoting Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)); LR 56.1; Dent v. Bestfoods, 2003 WL 22025008, at *1 n.1 (N.D. Ill. 2003)(explaining that a denial is improper if the denial is not accompanied by specific references to admissible evidence or at least evidence that represents admissible evidence). At this juncture, it is incumbent upon Gu to point to evidence to support his version of the facts, and he can no longer rely upon mere beliefs and allegations. Koszola v. ...


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