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Digioia v. Independence Plus, Inc.

United States District Court, N.D. Illinois, Eastern Division

January 14, 2014



JOAN B. GOTTSCHALL, District Judge.

Plaintiff April DiGioia has sued defendant Independence Plus, Inc. ("Independence Plus") for sex and pregnancy discrimination and retaliation, pursuant to Title VII, 42 U.S.C. § 2000e. DiGioia alleges that she applied for a nursing position with Independence Plus, an in-home health care service provider, but was not hired because she was pregnant. Independence Plus now moves for summary judgment on DiGioia's claims pursuant to Federal Rule of Civil Procedure 56. Because, construing the facts and drawing all permissible inferences in DiGioia's favor, a reasonable jury could find that DiGioia was not permitted to complete the hiring process because she was pregnant, the court denies the motion.


The court takes the following facts from the parties' Local Rule 56.1 Statements of Facts ("SOFs"), to the extent that they are supported by admissible evidence and relevant to issues raised in the motion. Where facts are disputed, the court takes no position as to which version of the disputed matter is correct. See Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

Independence Plus is an in-home health care provider that specializes in medically complex cases, such as ventilator- and technology-dependent patients. Independence Plus is able to care for patients at home who once would have to be cared for in an ICU. Independence Plus has 300 to 400 nurses on staff in a given year. Its nurses work one-on-one with patients in the patient's homes without supervision. Nurses must know how to care for the patients and be able to think under pressure. Independence Plus is in constant need of nurses and must often turn away patients due to a lack of qualified nurses. Independence Plus maintains that its hiring standards cannot be compromised without a risk to patient safety.[1]

Independence Plus recruits prospective nurse applicants by contacting nurses with a current license and at least one year of experience. Recruiters first screen the applicants to make sure they meet these minimum requirements. A job recruiter for Independence Plus found DiGioia's resume on CareerBuilder. He called her, telling her that he was a recruiter. DiGioia testified that she "understood what that meant because that's how home health care works." (Def.'s SOF Ex. 8 (DiGioia Dep. I) 49:8-9, ECF No. 33.)

In February 2011, DiGioia sought a position with Independence Plus as a Licensed Practical Nurse. Celeste Clarke was Independence Plus's Director of Human Resources at the time. She was ultimately responsible for the hiring process, making the final decision as to whether or not to hire an applicant. She was also responsible for the company's discrimination training. Clarke stated in an affidavit that the other staff assisting in the hiring process had no authority to turn away nurses who met Independence Plus's standards and were required to go to her with any questions that arose during the process. (Def.'s SOF Ex. 4 (Clarke Aff.) ¶ 7, ECF No. 33.)

According to Clarke, after an applicant is recruited, the applicant must come in to the Independence Plus offices to complete an application. At that point, the application process is turned over to a human resources coordinator. When DiGioia applied, that person was Elizabeth Gusman. Gusman scheduled appointments for nurse applicants and assisted in processing and collecting documents to facilitate the interview process. Gusman also sent out a list of documents that applicants needed to provide and was responsible for ensuring that every required document was in the applicant's file, and she assigned three on-line exams that applicants were required to take, either at home or in the Independence Plus office.

The written application required prospective nurses to list their last three employers, including employment dates, contact information, position, salary, and reason for leaving. At the end of the form, applicants signed to certify that the information provided was true and that employers and references were authorized to furnish information regarding past employment. To complete the application process and become an active employee, nurses also had to provide documents, including a nursing school transcript or diploma, pass on-line tests, and pass a clinical interview. They then had to complete pre-employment training and pass reference and license checks. Finally, they had to complete an orientation in a patient's home. Independence Plus commonly rejected nurse applicants for various reasons, such as failing to demonstrate good skills during pre-employment training and testing.

DiGioia appeared at the Independence Plus offices for an intake interview on February 9, 2011. She was not visibly pregnant. DiGioia provided Gusman with a doctor's note and the results of her last tuberculosis test. The note did not state that DiGioia was pregnant, but it was on stationery from an obstetrics and gynecology practice. It stated that DiGioia could return to work on September 8, 2011, and participate in all activities. (Def.'s SOF Ex. 9 (Note), ECF No. 33.) The tuberculosis test was conducted before DiGioia's pregnancy began and did not indicate that she was pregnant. (Def.'s SOF Ex. 10 (TB test), ECF No. 33.) DiGioia testified that she gave Gusman a note with a lifting restriction stating that she could not carry anything over fifty pounds because she was pregnant. (DiGioia Dep. I 59:11-21.)

Gusman testified at deposition, "No nurse [applicant] ever told me that they were pregnant." (Def.'s SOF Ex. 13 (Gusman Dep. 23:5-6, ECF No. 33.) Gusman testified that she did not recall meeting DiGioia and did not recall the intake interview on February 9, 2011. She further testified that she did not recall any nurse providing her with a lifting restriction and had no recollection of rejecting any applicant because of her pregnancy.

Pamela Wick was responsible for conducting clinical interviews with nurse applicants. Wick reported directly to Clarke. Her duties included reviewing and discussing the applicant's experience and nursing background, as listed on the application, and making a judgment call as to whether the applicant met the requirements of the job and could safely work without supervision. After screening applicants, Wick decided whether they could move on in the application process. She was the only person who interviewed nurse applicants in February 2011 and typically interviewed six applicants a day. If applicants failed the clinical interview or did not qualify to be interviewed, they were escorted out of the office. Wick was terminated from Independence Plus around January 4, 2012.

DiGioia testified that Wick spoke with her and that "[t]he majority of the conversation" was about her pregnancy. (DiGioia Dep. I 68:15.) She testified that Wick told her that she was qualified but that "right now we cannot hire you because you're pregnant." ( Id. at 64:2-3.) DiGioia testified that Wick told her, "my supervisor would be angry with me and I can't hire you because you're pregnant and the lifting restrictions that show on here." ( Id. at 66:13-16.)[2]

Independence Plus's job description for a Licensed Practical Nurse requires that the nurse be able to lift fifty pounds and be able to perform other physical tasks. A nurse who could not lift fifty pounds would not be hired, and the lifting restriction was applied consistently. DiGioia testified that she was able to lift up to fifty pounds. The parties agree that, despite her restriction, she met Independence Plus's physical requirements and that the restriction would not have disqualified DiGioia from a nursing job with Independence Plus. Clarke stated in an ...

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