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Kirk v. Advocate Health and Hospitals Corp.

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

November 14, 2017



          Charles P. Kocoras, United States District Judge.

         On March 22 2016, Dr. Jennifer Kristen Kirk (“Kirk”) filed a four-count complaint against Advocate Health and Hospitals Corporation, an Illinois Not-for-Profit Corporation d/b/a Advocate Medical Group (“AMG”). The complaint alleged the following causes of action: Sexual Discrimination and Sexual Harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (“Title VII”), as amended by the Civil Rights Act of 1991 and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. (“IHRA”) (Counts I & II); Retaliation in violation of Title VII (Count III); and Breach of Contract (Count IV). Advocate seeks summary judgment in its favor on all counts.

         Discovery has now been completed, permitting the Court's consideration of AMG's Motion for Summary Judgment (“Motion”) as to all claims against it. For the following reasons, the Court grants the Motion as to Counts I, II, and III. Count IV, the Breach of Contract count, is dismissed without prejudice.


         The following facts taken from the record are undisputed, except where otherwise noted.

         a. Kirk's Hiring and Patient Coverage Issues

         On April 22, 2014, Kirk entered into an Employment Agreement with AMG. On June 16, 2014, Kirk started working for AMG at the Advocate Good Samaritan Hospital (“Good Samaritan”) as a general surgeon, where she reported to Manoj Shah, M.D. (“Shah”), AMG Medical Director of Surgery, Advocate Lutheran General Hospital Director of Trauma and Surgery, and Governing Council Member.

         At the time Kirk began, AMG already had a group of five trauma surgeons who took general surgery call in Good Samaritan's emergency room: Grace Chang (“Chang”), Jim Cole (“Cole”), Amy Stewart (“Stewart”), Mike Iwanicki (“Iwanicki”), and Vijay Nair (“Nair”) (collectively, “Trauma Group”). With Kirk's arrival, a new four-person general surgery group was to be formed with Iwanicki and Nair coming from the Trauma Group, and Kirk and another doctor operating out of Good Samaritan, Mohan Airan (“Airan”). Kirk understood that Airan, approximately 80-years-old at the time, would be transferring his robust private practice to AMG.

         The discovery record reflects that in September 2014, Kirk's relationship with Airan deteriorated following an incident in the operating room. Airan, disagreeing with Kirk's planned surgical approach, dramatically stepped away from the operating table, removed his gown and gloves, threw them to the floor, and left the room before the procedure began. Kirk contends that Airan displayed “malicious and libelous behavior” following the incident by declaring to Good Samaritan staff that Kirk was an unsafe doctor and poor surgeon.

         Kirk also asserts that Airan, as an employee of AMG, was part-and-parcel of the “large corporate entity” that discriminated against her in something of a general discrimination scheme. Kirk ascribes this corporate misconduct to a great many individuals, a charge AMG vigorously disputes.

         Airan's disdain for Kirk led, in part, to what she contends was a recurring problem in obtaining coverage of her patients when she was absent. In order to retain medical staff membership at Good Samaritan, Kirk was obligated to find alternative coverage for her patients during her absences. This required the securing of a “current active, medical staff member” at Good Samaritan to cover her when necessary, one who held the same or similar privileges as Kirk.

         Kirk knew that if she was out of town, “the expectation was that [she] would find coverage for [her] practice” by “signing out” her patients to Airan, the Trauma Group, or privileged Good Samaritan colleagues, although Kirk claims that she never received instruction from AMG on the appropriate “sign out” procedure. AMG alleges that it never prevented Kirk from utilizing the coverage process, and both parties agree that there was never time off that Kirk was unable to take because she could not secure coverage, including holidays.

         In April 2015, Kirk for the first time asked the Trauma Group to cover her. Chang did so, leaving notes on the patient's chart that Kirk opined were “defensive and inflammatory.” Chang's note read: “I am seeing this patient because Dr. Kirk is out of town. I have never seen this patient before in my life. I was not present at this patient's surgery and I'm just seeing the patient because Dr. Kirk is not here.” Later that same month, Kirk met with Shah to inform him that the Trauma Group was unhappy about having to cover her patients, that Airan was refusing to cover her patients, and that Nair and Iwanicki were only available to cover her when they were in-house taking their trauma rotation.

         On August 18, 2015, Kirk claims that Shah told her that the Trauma Group would not cover her patient while she was away for 48 hours taking her son to college. The day before Kirk's August 18 discussion with Shah, Chang assisted Kirk with a complex surgery. Chang called Shah on August 18 to inform him of a complication during surgery and to make it clear to Shah that the Trauma Group “broadly” would not cover the patient in Kirk's absence. AMG contends that later that same day, Stanley told Kirk that despite Chang's statement to Shah, Iwanicki agreed to cover her.

         Kirk contends that, in her August 18 discussion with Shah, after he told her that nobody from the Trauma Group would assist her while she was away, Shah asked her not to leave town. Kirk responded that she would secure competent coverage from outside the Trauma Group, which she did. Kirk states that Stanley failed to inform Kirk that Iwanicki would cover her until after she acquired independent coverage. Kirk further claims that she refused Stanley's offer of Iwanicki's help because she felt uncomfortable accepting the Trauma Group's assistance following Shah's divulgence that the trauma surgeons did not want to cover her patients.

         The parties agree that at no time did the members of the Trauma Group ever personally tell Kirk that they would not cover her. But, according to Kirk, her superiors repeatedly told her that the Trauma Group would not cover her, and therefore, she was forced to seek coverage from doctors at Good Samaritan who were not AMG employees. Moreover, Kirk claims that the Trauma Group would cover Airan's general surgery cases. AMG notes, however, that Kirk did not know if the Trauma Group was uncomfortable covering for Airan, if he ever used someone outside the trauma group for coverage, or who from the Trauma Group ever actually covered Airan. Kirk further contends that, after August 2015, Iwanicki and Nair ignored her email requests for coverage and did not agree to cover her patients.

         On August 27, 2015, Kirk, Shah, Stanley, and Nancy Christie (“Christie”), AMG's Vice President of Operations, met to discuss the “issue of call coverage.” Determining that Kirk's issues were a “serious” problem, Shah asked for a month to respond due to how busy he was. AMG and Kirk agree that at neither this meeting nor at any other time while she was employed by AMG did Kirk mention that she believed that the treatment she was receiving was sex-based or make any allegations of sexual harassment or retaliation.

         According to AMG, Shah responded to Kirk's concerns by speaking to both the Trauma Group and Kirk about improving communications and considering Kirk's request for hiring another surgeon. Kirk denies that Shah seriously considered her proposals at the August 27 meeting.

         When asked to identify who discriminated against her in the context of coverage, Kirk stated that she did not know, but that “men and women, Nancy, Christie, Manoj Shah” and others did not respond to her. Kirk also claims that when she went to Shah on three separate occasions with complaints about Airan and the lack of coverage from her male partners, Shah raised unsubstantiated claims of medical mismanagement on Kirk's behalf.

         b. Sexual Harassment

         Kirk believes that Iwanicki made inappropriate sexual comments and gestures towards her in four ways: (1) in the fall of 2014, in the back work room of the general surgery office, Iwanicki said, “I'm a shoe guy and those shoes are fucking sexy, ” in the presence of nurse practitioner Gina Kidder (“Kidder”); (2) between the fall of 2014 and summer of 2015, at least four times in the hallway, Iwanicki said, “Hey, Kirk, let me see your shoes, ” occasionally in the presence of Kidder and the general public; (3) on August 26, 2015, at a medical staff appreciation dinner, Iwanicki greeted Kirk, embraced her, and tried to kiss her face, mouth, and neck, and said, “You are so fucking hot, ” in the presence of Kirk's husband; and (4) on December 3, 2015, while in the ER in the presence of a patient and an ER physician, Iwanicki said, “That's the fucking sexiest outfit I've ever seen.” Kirk only ever heard Iwanicki make sex-based comments.

         Kirk “assumed” that AMG had harassment, EEOC, and non-retaliation policies, and knew that AMG had a Human Resources department (“HR”), but she never reported any of her concerns to HR. Kirk adds that she was embarrassed by Iwanicki's actions and was worried about creating further potential conflict by pointing out Iwanicki's behavior on the heels of her coverage issues. The first time Kirk complained of sexual harassment was through her lawyer after she resigned on February 4, 2016.

         c. Peer Review

         On November 14, 2013, Kirk signed AMG's “Advocate Healthcare Network Applicant's Consent and Release” form in connection with her application for clinical privileges at Good Samaritan. Kirk understood that her Employment Agreement required continuous compliance with AMG and Good Samaritan's bylaws, rules, and policies, but could not recall whether she saw such bylaws prior to or at the time of her hire, nor if she saw them at all while employed by AMG.

         Good Samaritan's Medical Staff Peer Review Process utilizes Clinical Quality Committees (“CQCs”) to provide peer review of its staff. The CQC is designed to improve quality of care and can receive cases for review for any myriad of reasons. Kirk believes that she likely saw peer review ...

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