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Miljkovic v. University Anesthesiologists

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

September 18, 2014

UNIVERSITY ANESTHESIOLOGISTS, S.C., an Illinois corporation, Defendant

Page 885

For Aldijana Miljkovic, Plaintiff: Seth Robert Halpern, LEAD ATTORNEY, Carlie Shane Marvel, Malkinson & Halpern, P.C., Chicago, IL.

For University Anesthesiologists, S.C., an Illinois Corporation, Defendant: Michael B. Brohman, LEAD ATTORNEY, Alon Stein, Kamensky Rubenstein Hochiman & Delott LLP, Lincolnwood, IL.

Page 886



Plaintiff Aldijana Miljkovic worked as a medical assistant for defendant University Anesthesiologists, S.C. (" UA" ) from June 2008 until September 2009 when she was fired for not promptly and properly reporting that a vial of Demerol was missing from the locked narcotics cabinet. Defendant UA claims the decision was based not only on this incident, but also on plaintiff's earlier performance problems in February 2009 when she was placed on three-month probation.

Plaintiff believes discrimination motivated the decision. She alleges that Renata Lukenda, her immediate supervisor, and her second-level supervisor, Dr. Olga Ivankovich, falsely accused her of wrongdoing to get her fired because they were Croatians and Christians who disliked plaintiff's national origin (Bosnian) and religion (Muslim). Plaintiff alleges that they created a hostile environment by making comments critical of Bosnians and Muslims. She also alleges that, in October 2008, defendant failed to accommodate her request to take off work for the Muslim holiday of Ramadan.

The court has jurisdiction of the parties and the subject matter. 42 U.S.C. § § 2000e et seq. and 28 U.S.C. § 1391.

Defendant UA moves for summary judgment. On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 274 n.1, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009); Malen v. MTD Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010); Stokes v. Bd. of Educ. of City of Chicago, 599 F.3d 617, 619

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(7th Cir. 2010). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324; O'Brien v. Encotech Constr., 2004 WL 609798 *1 (N.D. Ill. March 23, 2004). Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Lorillard Tobacco Co. v. A & E Oil, Inc., 503 F.3d 588, 594-95 (7th Cir. 2007); Yasak v. Ret. Bd. of Policemen's Annuity & Benefit Fund of Chicago, 357 F.3d 677, 679 (7th Cir. 2004); Lampley v. Mitcheff, 2010 WL 4362826 *6 (N.D. Ind. Oct. 27, 2010). As the Seventh Circuit has summarized:

The party moving for summary judgment carries the initial burden of production to identify " those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by " 'showing--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this burden, the nonmovant must " set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). " The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be 'material.'" Logan, 96 F.3d at 978. " Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute." Id. (citation omitted). In determining whether the nonmovant has identified a " material" issue of fact for trial, we are guided by the applicable substantive law; " [o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (citation omitted). Furthermore, a factual dispute is " genuine" for summary judgment purposes only 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Hence, a " metaphysical doubt" regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and " the nonmovant fails to demonstrate a genuine issue for trial 'where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party . . . .'" Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

Outlaw, 259 F.3d at 837.

Resolving all genuine factual disputes and drawing all reasonable inferences in plaintiff's favor, the following facts are assumed to be true for purposes of summary judgment. Plaintiff is a Muslim who was born in Bosnia and lived there until she

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was 11 years old. On June 13, 2008, she was hired by defendant to work in its Pain Center. The decision to hire plaintiff was made by Dr. Olga Ivankovich, an Orthodox Christian who grew up in the part of Yugoslavia that is now Croatia.[1]

Dr. Olga was not in the Pain Center on a daily basis and left management to Renata Lukenda, plaintiff's immediate supervisor. Dr. Olga told all the medical assistants that orders from Lukenda were to be followed and treated as if said by Dr. Olga. Lukenda is Christian. Although there is a dispute about Lukenda's national origin, plaintiff states that Lukenda constantly made comments praising Croatia and criticizing Bosnia, thus evidencing that she self-identified as Croatian.[2]

On September 9, 2008, plaintiff asked to take off almost a month in vacation. She was going to Bosnia to visit her new husband's family and had scheduled the trip before taking the job. She did not tell UA that she was taking the time off to observe the Muslim holiday of Ramadan. UA approved the request, and plaintiff went to Bosnia from approximately September 11, 2008 through October 6, 2008.

After plaintiff returned from Bosnia in October 2008, she requested a day off to observe a Muslim holiday that was scheduled to occur in December 2008. Lukenda told plaintiff that the Muslim holiday was not a " real holiday" and she could not take the day off.

Plaintiff alleges that Lukenda and Dr. Olga made various workplace comments critical of Bosnia or Muslims. The comments are summarized below in the analysis of the hostile environment claim.

Plaintiff alleges that Lukenda constantly and unfairly criticized plaintiff about her work and told her that her mistakes were because she was Bosnian. One job of the medical assistants was to transfer information from patient charts to billing sheets to be sent to a billing company. According to plaintiff, it was routine for medical assistants to have sheets returned for clarification, but in plaintiff's case only, Lukenda would characterize these routine occurrences as mistakes.

On February 8, 2009, Lukenda sent a memo to Dr. Olga describing problems with plaintiff's work which included problems with billing sheets and failing to return phone calls to patients. On February 10, 2009, Dr. Olga placed plaintiff on a three-month probation and gave her a memo explaining the reasons. Dr. Olga physically threw the memo at plaintiff while yelling at her to get out of her office. Sanja, a non-Muslim medical assistant, and Dorota, a non-Muslim/non-Bosnian medical assistant, also had billing corrections come back during this time, but neither were placed on probation or had a disciplinary memo thrown at them.

In June or July 2009, plaintiff reported to Pat McHale of the Human Resources Department that Lukenda and Dr. Olga were treating her unfairly and making comments about her being a Bosnian-Muslim. No action was taken after this discussion, and neither Lukenda or Dr. Olga changed their behavior.

In July 2009, plaintiff asked Lukenda whether she could take off for a Muslim holiday scheduled for September 21, 2009. Lukenda ...

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