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Vietta L. Johnson, M.D., and Daniel Ivankovich, M.D v. County of Cook

July 16, 2012


The opinion of the court was delivered by: Judge Feinerman

Judge Feinerman


Drs. Vietta L. Johnson, Daniel Ivankovich, and Karen Nash brought the first of these consolidated suits (08 C 2139) against their former employer, Cook County, as well as Drs. Robert Simon, Aaron Hamb, and Clifford Crawford, alleging First Amendment and Equal Protection Clause violations under 42 U.S.C. § 1983 and claims under 42 U.S.C. § 1985, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d)(1). Doc. 1 (all record citations are to Case 08 C 2139 unless otherwise indicated). Drs. Johnson and Ivankovich then filed an amended complaint, which alleged the same claims and terminated Dr. Nash as a plaintiff. Doc. 16. The same day, Dr. Nash filed her own suit (08 C 3648) against Cook County, alleging violations of Title VII and the Equal Pay Act. Doc. 1 (08 C 3648). The § 1985 claims have been dismissed. 2009 WL 331531 (N.D. Ill. Feb. 10, 2009) (Cox, M.J.). Defendants have moved for summary judgment on the remaining claims. Doc. 205. The motion is granted in part and denied in part.


The facts are stated as favorably to Plaintiffs as the record and Local Rule 56.1 allow. On summary judgment, the court must assume the truth of those facts but does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012).

Plaintiffs are three physicians formerly employed by the Cook County Bureau of Health. The Bureau of Health operates seven health facilities in Cook County, including Stroger Hospital and Provident Hospital. Doc. 265-1 at ¶ 10. Dr. Johnson, an African-American female, was the Director/Chair of the Division of Orthopedic and Podiatric Surgery at Provident from 1998 through 2007. Id. at ¶ 1. Dr. Ivankovich, a white male, was a surgeon in Provident's Division of Orthopedics from 2002 through 2007. Id. at ¶ 2. Dr. Nash, an African-American female, was an oral and maxillofacial surgeon at Provident from 1992 through 2007. Id. at ¶ 3; Doc. 265-8 at 40. The individual defendants are doctors as well. Dr. Simon was the Interim Bureau Chief of the Cook County Bureau of Health from December 2006 through mid-2008. Doc. 265-1 at ¶ 7; Doc. 265-5 at 117, 162. Dr. Crawford was Chairman of Provident's Department of Surgery and the direct supervisor of Dr. Johnson and Dr. Nash. Doc. 265-1 at ¶ 5; Doc. 269 at ¶ 40. Dr. Hamb was Provident's Chief Medical Officer. Doc. 265-1 at ¶ 6.

I. Bureau of Health Budget Cuts and Plaintiffs' Terminations

Cook County experienced a significant budget shortfall in 2007. Doc. 265-1 at ¶ 25. As a result, Cook County Board of Commissioners President Todd Stroger tasked Dr. Simon with cutting the Bureau's budget. Id. at ¶ 26; Doc. 265-5 at 118. Dr. Simon solicited input from various Bureau doctors regarding the impact of cutting certain services. Doc. 265-1 at ¶¶ 35, 37, 50. While Dr. Simon was reviewing possible cuts, Dr. Mark Gonzalez, the chair of orthopedics at Stroger and acting bureau chair for orthopedics in early 2007, contacted Dr. Ivankovich to discuss his future at Provident. Doc. 269 at ¶ 5. Dr. Gonzalez told Dr. Ivankovich that the number of orthopedic surgeon positions at Provident would be reduced from two to one, and that "they" wanted Dr. Ivankovich to fill the single remaining position. Ibid. Dr. Ivankovich responded that Dr. Johnson also should be retained, but Dr. Gonzalez said that "they" did not want to keep her. Id. at ¶ 6. The record does not reveal to whom Dr. Gonzalez was referring by "they." Dr. Gonzalez added that women in orthopedics do not do much and that Dr. Johnson was "just another black physician troublemaker." Ibid.; Doc. 265-8 at 36, ¶ 5. (It bears repeating that the facts are stated in the light most favorable to Plaintiffs.)

In mid-February 2007, approximately six weeks after President Stroger first approached him, Dr. Simon submitted a proposed budget with $100 million in cuts. Doc. 265-1 at ¶ 29; Doc. 269 at ¶ 7. The budget identified which Bureau departments and positions would be retained, but did not identify which particular physicians would be retained. Doc. 269 at ¶ 1; Doc. 265-5 at 140-41. The proposed budget cut Provident's orthopedic surgical and oral and maxillofacial surgical services, with the thought that patients requiring those services could be seen at Stroger. Doc. 265-1 at ¶¶ 40, 46, 64. The Board approved Dr. Simon's proposed budget on February 23, 2007. Doc. 269 at ¶ 7.

Once the budget was approved, Dr. Simon was supposed to implement a process to determine which doctors would be retained. Id. at ¶ 15; Doc. 265-8 at 32, ¶ 7. Where specialties were being consolidated at one hospital, as with the consolidation of orthopedic surgery at Stroger, all of the Bureau's doctors in that specialty were to be given the opportunity to apply and interview for the remaining positions. Doc. 269 at ¶ 15; Doc. 265-8 at 32, ¶ 7. Interviews were conducted for doctors in several specialties. Doc. 269 at ¶ 22. The interviews scheduled for orthopedic surgeons and for oral and maxillofacial surgeons were cancelled. Id. at ¶¶ 19, 21. According to Dr. Simon, those interviews were cancelled because those departments would no longer exist at Provident. Id. at ¶ 20-21. But in fact the Bureau did continue to offer some orthopedic services at Provident. Id. at ¶ 13.

On April 13, 2007, Drs. Johnson, Ivankovich, and Nash were terminated. Doc. 265-1 at ¶¶ 1-3. Before the terminations, Dr. Simon asked Drs. Hamb and Crawford for a report on Dr. Johnson's performance and Dr. Ivankovich's productivity. Id. at ¶ 33; Doc. 265-4 at 6, 136. Dr. Simon did not ask for assessments of any other doctors. Doc. 265-1 at ¶ 33; Doc. 265-4 at 6, 110. Dr. Simon testified that he does not remember receiving assessments of Drs. Johnson and Ivankovich, and that his decision to terminate them was not based on their individual productivity. Doc. 265-1 at ¶ 44; Doc. 265-5 at 156.

II. Plaintiffs' Speech

Prior to their terminations, Drs. Johnson and Ivankovich were publicly critical of the proposed budget cuts. In 2006, Dr. Johnson spoke out against the cuts at a large community meeting at a local church. Doc. 269 at ¶ 3. Dr. Johnson also participated in two rallies outside Provident to protest the cuts. Doc. 265-1 at ¶ 93. Local television coverage of one of the rallies showed Dr. Johnson saying that a 50% budget cut "would be a cut to the bone." Ibid. Dr. Johnson spoke about the community impact of the budget cuts on a local radio show, Doc. 269 at ¶ 3, during meetings with Operation PUSH, Doc. 265-1 at ¶¶ 87-88, 90, and during a Cook County Board meeting, id. at ¶ 86; Doc. 209 at 141-143. In a February 2007 Chicago Tribune article titled "Why Cook hospitals are losing millions," Dr. Ivankovich was quoted as saying: "Give me a social worker and someone to help with the paperwork, and I could generate millions of dollars from Medicaid and Medicare a year." Doc. 265-4 at 201.

III. Work Environment

While employed at Provident, Drs. Johnson and Nash both had run-ins with Dr. Crawford, their supervisor. During an evening meeting on August 21, 2003, Dr. Johnson told Dr. Crawford that she needed to return home to relieve her babysitter. Doc. 269 at ¶ 23; Doc. 265-5 at 43. Dr. Crawford responded by asking whether her job was important to her, and then told her to "go home and be a mother." Doc. 269 at ¶ 23; Doc. 265-5 at 43. When Dr. Johnson decided to stay, Dr. Crawford threatened to physically remove her from his office and to call security. Doc. 269 at ¶ 23; Doc. 265-5 at 43. Dr. Crawford then stood up and stepped out from behind his desk, making Dr. Johnson feel physically threatened. Doc. 269 at ¶ 23; Doc. 265-5 at 43-44. Following this incident, Dr. Crawford repeatedly asked Dr. Johnson whether she had worked a forty-hour week. Doc. 265-5 at 38.

In June 2005, Dr. Johnson was involved in an operating room incident with another doctor in her division. Dr. Crawford sided with the other doctor, who was male, without first consulting Dr. Johnson about what had occurred. Doc. 269 at ¶ 25; Doc. 265-5 at 40-41. In October 2005, Dr. Crawford accused Dr. Johnson of insubordination because, when supporting two staff members during a meeting, she accused Dr. Crawford of lying. Doc. 269 at ¶ 25; Doc. 265-5 at 45-46. Also in 2005, when Dr. Johnson's patients did not appear for surgery, Dr. Crawford accused her of scheduling "ghost cases." Doc. 269 at ¶ 25; Doc. 265-5 at 38. Dr. Johnson complained about these events in a July 20, 2005 letter to Dr. Crawford regarding the operating room incident, Doc. 265-7 at 4, and in an October 28, 2005 letter referencing that incident and others, id. at 20.

In August 2006, Dr. Crawford wrote Dr. Johnson a letter reprimanding her for arriving late to her clinic without giving prior notice. Doc. 210-18 at 1. Dr. Crawford did so even though Dr. Johnson had notified the clinic that she would be late due to a medical condition that required immediate care. Doc. 265-5 at 48-49. During a conversation with Drs. Ivankovich and Johnson, Dr. Crawford questioned Dr. Johnson's ability to perform difficult cases. Doc. 265-4 at 175. Dr. Ivankovich described the exchange as follows:

Crawford: Are you going to do them? You can't do those. You're not able to do those, are you?

Ivankovich: Of course she can do it.

Johnson: Of course I can do it.

Crawford: She's not able to do it? You're not able to do it?

Ibid. Dr. Ivankovich understood Dr. Crawford's statements to be "based on the fact that [Dr. Johnson] was a foot and ankle surgeon and because she went into a field that was not manly in doing spines and big hip replacements, that she was unable to do that. And I think he did pick on that as sort of a recurring theme as a-just a slight of her ability, Dr. Johnson's ability and her competence." Ibid.

The final incident between Dr. Johnson and Dr. Crawford occurred in January 2007. Dr. Johnson's division had refused to sign a letter regarding productivity. Doc. 265-5 at 37. Dr. Crawford told Dr. Johnson that the doctors in her division needed to be more like Dr. Jackie Harrison (a woman) and say "yes, sir" when Dr. Crawford asked them to do something. Id. at 36. Dr. Johnson testified that she believed Dr. Crawford's actions were hostile. Id. at 61.

Between 2003 and 2007, Dr. Nash "constantly" had major arguments with Dr. Crawford, some of which involved profanity. Doc. 265-5 at 101-02. In certain instances, the arguments occurred when Dr. Nash "sided with Dr. Johnson." Id. at 102. Dr. Nash observed similar treatment by Dr. Crawford towards Dr. Johnson, but not towards other doctors. Ibid.

IV. Compensation

During their last three years at Provident, Drs. Johnson and Nash were paid less than male doctors at Stroger. Dr. Johnson was paid less than Dr. Gonzalez, the male chair of orthopedics at Stroger. Doc. 269 at ¶ 35. Dr. Ivankovich testified that Drs. Johnson and Gonzalez had equivalent duties in that both were "division chairmen for orthopedics[,] . had meetings, . had budgets," and supervised residents. Doc. 265-4 at 182, 184. Dr. Gonzalez testified that his position at Stroger was "the equivalent of the position" that Dr. Johnson held at Provident. Id. at 70. Stroger is a level one trauma facility while Provident is not. Doc. 265-1 at ¶ 13. The parties dispute whether the job of a non-emergency room physician doctor at a level one trauma facility is comparable to the same job at a non-level one trauma facility.

Dr. Nash was paid less than Dr. Henry Fung, a male oral and maxillofacial surgeon at Stroger. Doc. 269 at ¶ 36. Drs. Nash and Fung both trained at Stroger. Ibid.; Doc. 265-8 at 41. Their responsibilities included being on-call, conducting clinics, performing surgery on major oral and maxillofacial fractures and trauma, performing dentoalveolar surgery, and treating major pathology. Doc. 269 at ¶ 36; Doc. 265-8 at 41.


Dr. Johnson alleges: (1) that her termination was due to race and sex discrimination in violation of Title VII and the Equal Protection Clause; (2) that her termination also was due to retaliation in violation of the First Amendment; (3) that she was subjected to a hostile work environment in violation of Title VII; and (4) that she suffered wage discrimination in violation of Title VII and the Equal Pay Act. Dr. Nash alleges: (1) that her termination was due to race and sex discrimination in violation of Title VII; (2) that she was subjected to a hostile work environment in violation of Title VII; and (3) that she suffered wage discrimination in violation of Title VII and the Equal Pay Act. Dr. Ivankovich alleges that his termination was due to retaliation in violation of Title VII, the Equal Protection Clause, ...

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