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Sestak v. Northwestern Memorial Healthcare

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

November 28, 2017

MARY SESTAK, Plaintiff,
NORTHWESTERN MEMORIAL HEALTHCARE, an Illinois not-for-profit corporation Defendant.



         Plaintiff Mary Sestak worked as a staff nurse at Northwestern Memorial Hospital from 2000 until 2013. Defendant Northwestern Memorial Healthcare (NMH) terminated Sestak's employment after she accessed the medical records of an infant in the neonatal intensive care unit (“NICU”) and provided that infant with “touch therapy.” NMH argues that it fired Sestak because it concluded that she violated the Health Insurance Portability and Accountability Act of 1996, NMH's Privacy and Confidentiality Policy, and NMH's Rules of Personal Conduct by “perform[ing] work outside the scope” of her employment. Sestak argues that these rationales are pretextual and that Defendant in fact terminated her on the basis of her age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34. Defendant has moved for summary judgment on this claim, but the court concludes that there are genuine disputes of fact regarding Defendant's motives for her discharge.


         Mary Sestak was born on November 27, 1958. (Def.'s Local Rule 56.1 Statement of Material Facts [58] (hereafter “Def.'s SOF”) ¶ 1.) She holds a B.S. degree in agriculture and an associate's degree in nursing. (Decl. of Mary Sestak (hereafter “Sestak Decl.”) ¶ 1, Ex. 3 to Pl.'s Statement of Material Facts [63] (hereafter “Pl.'s SOF”).) She has been licensed as a nurse since June 1985, qualified to work in the areas of labor and delivery. (Id.)

         Beginning on August 4, 2000, Sestak worked for NMH as a staff nurse in the labor and delivery department. (Def.'s SOF ¶ 1.) Although the parties dispute whether Sestak ever received informal criticism of her performance, they agree that all her formal performance evaluations were positive. (Pl.'s SOF ¶¶ 4-5; Def.'s Resp. to Pl.'s Statement of Material Facts [84] (hereafter “Def.'s Resp. to Pl.'s SOF”) ¶ 4-5.) These evaluations stated, variously, that Sestak “[a]ssesses and cares for patients safely, ” “[p]rovides competent patient care, ” “[p]rovides safe patient care, ” “[d]emonstrates compliance with patient care policies, ” and “[p]ractices accountability using nursing process.” (Pl.'s SOF ¶ 4.) They also stated that Sestak was a “[g]reat RN with lots of experience, 27 plus years” who “[l]oves bedside nursing.” (Id.) Sestak received several pay raises during her tenure at NMH. (Id.)

         Despite these positive evaluations, Sestak perceived an attitude among some in her Department that “older nurses were taking too long with the patients.” (Deposition of Mary Sestak (hereafter “Sestak Dep.”) 75:23-24, Ex. 1 to Pl.'s SOF.) At one meeting with her supervisors Kim Armour and Melissa Kelley, for example, Sestak remembers an unidentified individual stating that “older nurses would have difficulty” complying with new guidelines relating to the speed at which patients should be moved “out of labor in delivery, ” because older nurses “are too slow and spend too much time with patients.” (Sestak. Decl. ¶ 10.)[1] Defendant denies that any such statement was made (Def.'s Resp. to Pl.'s SOF ¶ 10) and maintains that any age-related comments plaintiff overheard prior to November 13, 2013, were made by non-supervisory employees. (Def.'s SOF ¶ 50.)

         The parties also dispute whether the attitude Sestak describes led to any differential treatment of older nurses at NMH. (Pl.'s SOF ¶ 10; Def.'s Resp. to Pl.'s SOF ¶ 10.) Sestak claims that “older” nurses were often “given really difficult assignments.” (Sestak Dep. 159:1.) She recounts one incident in which a charge nurse assigned “a very large patient” to Sestak, rather than “any of the younger nurses that had come up in the queue.” (Sestak Dep. 82:20-83:6.)[2] On another occasion, Sestak was assigned “a prostitute who was a drug seeker” because other nurses viewed that patient as “undesirable.” (Id. 160:7-20.)

         Sestak further claims that she “observed younger nurses not being disciplined or being less harshly disciplined for things that older nurses were disciplined for.” (Pl.'s SOF ¶ 12.) She testifies that “younger people at the hospital” regularly violated policies prohibiting employees from conducting personal business during worktime. (Sestak Dep. 160:16-22.) “They always have their iPhones out, and no one says anything, ” Sestak claims. (Id.)

         NMH disputes Sestak's general allegations of disparate treatment. (Def.'s Resp. to Pl.'s SOF ¶¶ 10-12.) It asserts that of the fifteen employees in Sestak's Department who “separated employment” with NHM in 2013, “only one (1) was over forty (40) years old-Plaintiff.” (Def.'s SOF ¶ 55.) But this statistic is not particularly illuminating, as it appears that of those individuals, Plaintiff was the only one terminated by NMH for cause or disciplinary reasons. (Pl.'s SOF Ex. 12.)[3]

         I. Events leading to Sestak's termination

         On November 5, 2013, Sestak was assigned to care for a patient in the labor and delivery unit who eventually gave birth to twins after Sestak's shift ended. (Def.'s SOF ¶¶ 10- 12.) The parties dispute whether Sestak was also “assigned” to care for the twins while their mother was in labor. (Def.'s Resp. to Pl.'s SOF ¶ 14.) Sestak claims that she was assigned to care for both the mother and the unborn babies during this time. (Pl.'s SOF ¶ 14.)[4] Defendant suggests that Plaintiff was assigned only to care for the mother, but Defendant has not identified another nurse as having been assigned to care for the unborn twins, nor has Defendant suggested that a nurse caring for a woman in labor has no responsibility for the unborn baby. (Def.'s SOF ¶ 10.) In any event, Sestak asserts that she “charted on medical records of both babies, ” as well as their mother, while they were in the labor and delivery unit. (Pl.'s SOF ¶ 14.) She also asserts that she “bonded” with both the mother and father of the twins over a discussion of their “mutual belief in the power of touch therapy-that it was good for brain development, weight gain, [and] balance development.” (Pl.'s SOF ¶ 15.)[5] At the father's request, Sestak gave him her telephone number when her shift ended on November 5. (Def.'s SOF ¶ 11.)

         The mother gave birth to twins the next day, while Sestak was not at work. (Def.'s SOF ¶ 12.) After delivery, one of the twins was taken to the neonatal intensive care unit (“NICU”) at NMH. (Id.) On November 9, 2013, the infants' father called Sestak and asked her questions about the infant being treated in the NICU. (Pl.'s SOF ¶ 16.)[6] Sestak told the father that she would look at the infant's medical chart, and he responded by saying “ok.” (Id.)[7] Sestak then “briefly” examined the infant's chart “only to see what had happened in the delivery.” (Id.) Sestak claims she did not share the information from the infant's chart with anyone. (Id.) Defendant disputes this assertion based on an electronic report created on the morning of November 13, 2013, by NICU nurse Moira Hoelting. (Def.'s Resp. to Pl.'s SOF ¶ 16.) According to that report, which Hoelting prepared at the request of NICU charge-nurse Courtney Sypult and NICU manager Diane Stonner, Sestak told Hoelting on November 12 that “she had been reading the MRI and test results in the chart and asked specific questions regarding patient's care.” (Deposition of Moira Hoelting (hereafter “Hoelting Dep.”) 14:15-17:17, Ex. 10 to Pl.'s. SOF; NMH0406, Ex. 8 to Def.'s SOF.)

         According to Sestak, she and the infant's parents “had further discussions” in which the parents told Sestak that they were “worried [the infant] was not getting proper care in the NICU.” Plaintiff offers no details about when or where these conversations occurred. (Sestak Decl. ¶ 15; Pl.'s SOF ¶ 17.) She does recall that she responded by explaining to the parents that she “was not a NICU nurse, but that [the infant] was in good hands and whatever can be done is being done.” (Pl.'s SOF ¶ 17.) The parents then asked what they could do to help, and Sestak “discussed skin to skin and therapeutic touch” with them. (Pl.'s SOF ¶ 17.)[8]

         On November 12, 2013, the infant's father sent Sestak a text message asking if she would go to the NICU to help provide “PT” for the infant. (Def.'s SOF ¶ 15.) Sestak responded that she “was busy” and “couldn't come up there, ” but that she would do so “after the shift.” (Id. at ¶ 16.) She again accessed the infant's medical chart “only briefly to see if [the infant] was stable enough for skin to skin.” (Pl.'s SOF ¶ 18.)[9] She contends she “only looked at the chart for the purpose of caring for the family, and she believed [the infant] was her patient at the time because she continued to care for the family.” (Id.; Def.'s Resp. to Pl.'s SOF ¶ 18.)

         After her shift ended on November 12, Sestak went to the NICU “intending to meet” the infant's parents “to show them skin to skin and touch therapy.” (Def.'s SOF ¶ 19; Pl.'s SOF ¶ 20.)[10] Sestak walked into the area where the infant was located, but the infant's parents were not present. (Def.'s SOF ¶ 20.) Plaintiff claims that she spoke with Moira Hoelting, [11] the NICU nurse caring for the infant on November 12, who asked Sestak “what had happened” to the infant during labor and delivery. (Sestak Decl. ¶ 18.) According to Plaintiff, she “did not give Hoelting any information concerning what had happened to [the infant]” during labor and delivery. (Pl.'s SOF ¶ 22.)[12] Sestak claims she asked for and received permission from Hoelting to perform touch therapy on the infant after washing her hands. (Id. at ¶¶ 23-24.) Sestak recalls that Hoelting remained by the bedside and remarked that the infant's response to Sestak's touch was “amazing.” (Pl.'s SOF ¶ 25-26.)[13] Sestak then told Hoelting that she would return the following day at a time when the infant's parents were likely to be present. (Id. at ¶ 26.) Hoelting did not tell Sestak that her actions were inappropriate or that she shouldn't return to the NICU. (Id.)

         In NMH's version of events, by contrast, Sestak “was already at the baby's bedside rubbing the arms and legs of the baby” when Hoelting first approached her. (Def.'s Resp. to Pl.'s SOF ¶¶ 23-24; Def.'s SOF ¶ 22.) Sestak “introduced herself to Hoelting as an L&D nurse” and “told Hoelting that she took care of Infant's mother during her stay in L&D.” (Id.) She also informed Hoelting that she had “previously read Infant's EEG and MRI results” and “asked what the outcomes were about them.” (Id.) Hoelting “was brief with Plaintiff” because Hoelting “was trained to respond to people asking questions about a patients [sic] status by saying the patient is ‘doing well.'” (Def.'s Resp. to Pl.'s SOF ¶¶ 25-26.) The next morning, Hoelting created a “Northwestern Event Tracking System (‘NETS') report regarding Plaintiff visiting Infant in the NICU.” (Def.'s SOF ¶ 24.) As noted above, this report stated that a “[l]abor and delivery RN came to patient bedside in the NICU asking questions about patient's status. She said she had been reading the MRI and test results in the chart and asked specific results regarding patient's care. She said she would be back again to visit patient the next day.” (NMH0406, Ex. 8 to Def.'s SOF.)

         After leaving the NICU on November 12, Sestak sent another text message to the infant's father, stating that she “just went and did massage on [Infant] and will do another tomorrow.” (Def.'s SOF ¶ 25.) The following day, Sestak again texted the infant's father, this time stating that she would “come by the [NICU] tonight” and that it was “better to do it after hours when it is quieter.” (Id.) After Sestak's shift ended on November 13, she again “used her badge” to enter the NICU. (Def.'s SOF ¶ 27.) Unlike the previous day, Sestak was not wearing her nursing uniform when she entered the NICU. (Id.) This time, at the request of NICU manager Tim Rog, Sestak left the NICU and did not return. (Pl.'s SOF ¶ 27.) NICU nurse Deb Bafia later created a NETS report concerning the incident. (Def.'s SOF ¶ 30; Pl.'s Resp. to Def.'s SOF ¶ 30.) The report stated, among other things, that Bafia “was standing at patient's bedside, when a lady in street clothes walked in asked me if I was the pateint's [sic] nurse, then she began to scrub in.” (NMH 0408, Ex. 8 to Def.'s SOF.)[14]

         In November 2013, Melissa Kelley and Sue Fulara were Sestak's direct supervisors in the Labor and Delivery Department. (Def.'s SOF ¶ 7.) Kelley, in turn, reported to Kim Armour, NMH's Director of Women's Health. (Id. at ¶ 8.) By November 14, supervisors had become aware of the events described above (the record does not say how), and asked Sestak to attend a meeting with Armour and Kelley, as well as Alexander Masten (NMH's Compliance Program Coordinator) and Eric McGee (a Human Resources consultant assigned to the Labor and Delivery Department). (Pl.'s SOF ¶¶ 29-30; Def.'s SOF ¶¶ 31-35.)[15] The purpose of the meeting was to determine whether Sestak's actions “warranted disciplinary action” or resulted in a “reportable breach” of the Health Insurance Portability and Accountability Act (“HIPAA”). (Def.'s SOF ¶ 35.) That Act generally prohibits unauthorized access to or disclosure of private medical information.

         The parties dispute what was said at this meeting. According to Sestak, the discussion focused “almost entirely” on her “viewing the medical charts” of the infant. (Pl.'s SOF ¶ 32.) “No one said anything at the meeting about touch therapy being inappropriate or violating any policy.” (Id.) Sestak told the group that the infant's father had given her permission to look at the infant's medical charts, and she showed the father's text messages to Masten and McGee. (Pl.'s SOF ¶ 31.)[16] According to Sestak, after hearing Sestak's explanation and reviewing the text messages, Masten concluded that “there was no violation of HIPAA.” (Id. at ¶ 32.) Kim Armour then moved the conversation away from the narrow question of whether Sestak violated HIPAA. According to Sestak, Armour stated that “‘older nurses' often have difficulty understanding when the mother and baby become separate patients.” (Id. at ¶ 33.) Armour then told Sestak “that she was sorry but she had to make an example of [Sestak].” (Id.) Sestak's account is corroborated by handwritten notes that she made in her personal calendar “immediately following the meeting” on November 14. (Sestak Decl. ¶ 27; Sestak Dep. 33:12-24.)[17] At ...

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