The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Before the court is plaintiff Dr. Nathalie McCammon-Chase's Motion for Partial Summary Judgment. [Dkt 66.] Defendants Circle Family Center ("CFC")and Dr. Bruce Peoples have filed their opposition to the motion (Defs.' Resp.) [dkt 75-2], and McCammon-Chase has filed her reply (Pl.'s Reply) [dkt 82].*fn1 For the reasons that follow, McCammon-Chase's motion is denied.
McCammon-Chase brings claims of sex discrimination under 42 U.S.C. §
2000(e)(5) and breach of contract against CFC, and a claim of
violation of the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. §§ 115/1, et seq., against both CFC and its
Chief Medical Officer Bruce Peoples. (Compl.) [Dkt 5.]*fn2
The court has jurisdiction over the federal claim pursuant to
28 U.S.C. §§ 1331, 1337 and 42 U.S.C. § 2000(e)(5), and supplemental
jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
The parties consented to the exercise of jurisdiction by a United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt
CFC is a not-for-profit organization licensed to do business in the state of Illinois. (Defs.' LR Stmt. ¶ 2.) Beginning on or about September 1, 2007, McCammon-Chase was employed by CFC as its director of the Maternal Child Health Program. (Id. ¶¶ 1, 5; Pl.'s LR Stmt., Ex. C, Dep. Bruce Peoples at 170.) Shortly thereafter, Dr. Parks-Johnson became co-director of the Maternal Child Health Program. (Pl.'s LR Stmt., Ex. B, Dep. Nathalie McCammon-Chase at 59-60.)
McCammon-Chase and CFC entered into a written employment contract (the "Agreement") for the period of September 1, 2007 though August 31, 2009. (Defs.' LR Stmt. ¶ 5.)*fn4 Pursuant to the Agreement, either party could terminate without cause by providing the other with written 90-day notice. (Agreement at 2.) In her complaint, McCammon-Chase alleges that she was constructively discharged and tendered a resignation letter in May 2009, but continued working until she was terminated on September 3, 2009. (Compl. ¶ 45, 47.) The parties agree that she worked for CFC at least through the August 31, 2009 expiration of the Agreement. (Defs.' LR Stmt. ¶ 11; Ans. ¶ 47 [dkt 16].)
Pursuant to the Agreement, McCammon-Chase promised, among other things, to "develop and expand CFC's Maternal Child Program," to provide family practice services including prenatal, deliveries and post-partum care with a minimum expectation of 2136 patient care visits, or "encounters," per year, and to participate in on-call after hours services. (Agreement at 1-2.) She promised to "work collaboratively with CFC staff to assure quality services to CFC patients and meet productivity goals." (Id. at 2.) In turn, CFC promised to employ McCammon-Chase as a full-time provider of medical care to CFC patients, and to pay her a specified compensation package including a base salary and bonuses for delivering babies. (Id. at 1.) It further committed to "provide additional OB Provider support . . . to assist with deliveries and call" after 90 days of her employment, and to pay her $50 per hour for on-call coverage beginning on the 91st day if it had not retained a third provider by that time. (Id.)
CFC paid McCammon-Chase quarterly delivery bonuses at the beginning of their relationship, although the parties dispute the timeliness of those payments. (Def.'s LR Stmt. ¶ 10.) After its payment to McCammon-Chase for deliveries through September 30, 2008, however, CFC made no further bonus payments due to inadequate revenue. (Defs.' LR Stmt. ¶¶ 10, 11.) According to CFC, when it learned that its financial difficulties meant it could no longer pay quarterly bonuses, it promptly notified McCammon-Chase. (Id.) McCammon-Chase continued to perform both vaginal and cesarean deliveries until the end of her contract term. (Id. ¶ 11.)
CFC did not retain an additional obstetrics provider by the 91st day of McCammon-Chase's employment. (Defs.' LR Stmt. ¶ 13.) As a result, McCammon-Chase worked on-call hours to cover obstetric shifts. (Id. ¶ 13; Peoples Dep. at 254.) She was not paid for the on-call hours that she worked. (Defs.' LR Stmt. ¶ 14.) According to CFC, it made good faith efforts to hire an additional obstetrics provider, but was unable to do so. (Id. ¶ 13.) CFC says that it did, however, arrange for family physician Dr. Tin Fang and physician assistant Kristen Hainey to assist McCammon-Chase and Parks-Johnson by providing patients with routine prenatal and post-natal care. (Id. ¶ 21; Defs.' LR Stmt., Ex. B, Aff. Bruce Peoples ¶ 14.) Although McCammon-Chase disputes much of CFC's statement, she does not dispute that portion. (Pl.'s Resp. Add'l Facts ¶ 21.)
CFC says that it informed McCammon-Chase and Parks-Johnson in a February 2008 meeting that it could not afford to pay their on-call time. (Defs.' LR Stmt. ¶ 21.) It says that it offered both doctors a waiver of the 90-day termination notice provision if either chose to resign, or the ability to stay with CFC and waive the right to on-call pay. (Id.; Peoples Aff. ¶ 14.) McCammon-Chase disputes that. (Pl.'s Resp. Add'l Facts ¶ 21.) McCammon-Chase continued working for CFC after the meeting and continued working on-call hours. (Pl.'s Resp. Add'l Facts ¶ 21; Defs.' LR Stmt. ¶ 13; Peoples Aff. ¶ 14.)
McCammon-Chase seeks partial summary judgment on her claim that CFC breached the Agreement, which she argues it did in two ways: first, by failing to pay her for the on-call hours she worked after her 90th day of employment; and second, by failing to pay her bonuses for deliveries she performed after September 13, 2008. (Pl.'s Mem. At 7.) [Dkt 67.] CFC admits that it did not pay McCammon-Chase for on-call work, but says that she waived that provision of the Agreement after CFC advised that it couldn't afford to pay it, and that, in any event, she suffered no damages as a result of its nonpayment. (Defs.' Resp. at 5-6, 9-10.) CFC also admits that it did not pay McCammon-Chase delivery bonuses after September 13, 2008, but says that it is not liable for breach of contract since McCammon-Chase materially breached the contract in a number of ways, including failing to keep and submit necessary records. (Id. at 6-9.) McCammon-Chase argues that CFC's defenses are affirmative and have been waived since they were not pled earlier, and that even if they are considered, they are not sufficiently supported to withstand her motion for summary judgment. (Pl.'s Reply at 2-15.)
A party may move for summary judgment on a claim or defense, or part of a claim or defense. Fed. R. Civ. P. 56(a). Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. To oppose a motion for summary judgment successfully, the responding party may not simply rest on its pleadings, but rather must submit evidentiary materials showing that a material fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1). A genuine dispute of material fact exists when there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying applicable evidence. Bombard v. Ft. Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996). In determining whether a genuine dispute of material fact exists, the court construes all facts and draws all reasonable and justifiable inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255.
Under Rule 56.1 of the Local Rules for the Northern District of Illinois, the party moving for summary judgment must submit a statement of material facts as to which that party contends there is no genuine issue and that entitles the party to judgment as a matter of law. N.D. Ill. Loc. R. 56.1(a). The statement must be supported by specific reference to affidavits, parts of the record or other supporting materials relied upon to support the facts that are set forth in each paragraph. Id. The opposing party must provide a response that either admits or denies each of the moving party's statements, and must specifically cite affidavits, parts of the record or other supporting evidence relied upon to support any denials. Id. ¶ (b)(3). Where the opposing party fails to identify such materials, the moving party's allegations, where properly supported, will be deemed admitted. Id.
Local Rule 56.1 "serves an important function by ensuring that the proposed findings of fact are in a form that permits the district court to analyze the admissible evidence supporting particular factual propositions and determine precisely what facts, if any, are material and disputed." Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir. 2010). The submission of arguments and non-responsive facts in a Local Rule 56.1 statement defeats its purpose. Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 528 (7th Cir. 2000). When reviewing Local Rule 56.1 statements, the court need not "wade through improper denials and legal arguments in search of a genuinely disputed fact." Id. at 529; accord Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008). The court carefully reviews each Local Rule statement and disregards any intertwined argument, conclusion or unsupported fact.*fn5
I. Unpaid On-Call Time and Delivery Bonuses
McCammon-Chase claims that CFC breached the Agreement by not paying her on-call time after her 90th day of employment. (Pl.'s Mem. at 7.) Pursuant to the Agreement, CFC: 12. Agree[d] to provide additional OB [Obstetrics] Provider support (with active participation from the OB providers) to assist with deliveries and call, after ninety days of employment. If after a good faith effort, the CFC medical director determines that we are unable to recruit a third medical doctor within the 90 day period, on day 91 and thereafter, CFC agrees to pay an hourly rate of $50 for back-up on-call coverage provided in the absence of the third medical doctor. (Agreement at 1.)
She also claims that CFC breached the agreement by failing to pay her bonuses for deliveries. (Pl.'s Mem. at 7.) Pursuant to the Agreement, CFC promised that it would:
3. Pay quarterly bonuses to Physician as mutually agreed upon from funds generated from deliveries. After satisfactory reconciliation the bonuses will be paid within ...