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Crum v. Advocate North Side Health Network

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

February 26, 2018

Robert Crum, Plaintiff,
v.
Advocate North Side Health Network, Defendant.

          MEMORANDUM OPINION AND ORDER

          MANISH S. SHAH, UNITED STATES DISTRICT JUDGE.

         Plaintiff Robert Crum brings this action against his former employer, defendant Advocate North Side Health Network, for age discrimination, retaliation, and a hostile work environment under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. Advocate moves for summary judgment on Crum's claims. That motion is granted.

         I. Legal Standards

         Summary judgment is appropriate 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. Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Roh v. Starbucks Corp., 2018 WL 663093, at *2 (7th Cir. 2018).

         II. Background

         Robert Crum worked as a Public Safety Officer for Advocate Illinois Masonic Medical Center. [56] ¶¶ 1-2.[1] During the period of Crum's employment that is relevant to this case, Lee Matthews was Crum's supervisor. Id. ¶ 2. Crum and Matthews were both born in 1953. Id. ¶ 2.

         Advocate has a progressive disciplinary policy, which describes the bases for discipline and the various levels of discipline. Id. ¶ 4. Level 1 and 2 Corrective Actions are warnings that are “active” for six months, meaning that if an employee on one of those levels receives another corrective action, then that new corrective action will be deemed to be at the next highest level. Id. Level 3 is a final warning, and it is “active” for one year; if an employee is disciplined within one year of receiving a Level 3, then that employee may be terminated. Id. The policy includes a “Just Culture Decision Matrix, ” which helps managers to make fair decisions in disciplining employees. Id.

         Additionally, Advocate has an Associate Conflict Resolution program, which allows an employee to submit certain workplace concerns for resolution, such as a challenge to a corrective action. Id. ¶ 7. First, the employee is encouraged to resolve the matter by conferring with his manager. Id. If the situation is not resolved, then the employee must contact a Human Resources Professional within seven calendar days. Id. At that point, the unresolved issues may be addressed under one of five different “tracks” or methods of resolution. Id. One of these tracks involves facilitated discussions between the employee, his manager (or the manager's superior), and a Human Resources Professional. Id. If the issue is still unresolved after having been submitted to one of these five tracks, then the employee may formally request either mediation or arbitration. Id.

         A. Crum's Employment History

         On May 19, 2015, Matthews gave Crum a Level 1 Corrective Action Notice.[2] Id. ¶ 5; see also [52-1] at 276, 280. The CAN stated that Crum used the department radio to broadcast rude and discourteous comments about another public safety officer on April 24, 2015, in violation of Advocate's policies. [56] ¶ 5; see also [52-1] at 280. At his deposition, Advocate asked Crum if he recalled using the radio in April 2015 to criticize another officer; Crum testified: “I recall talking over the radio but not - not this incident. It was just the opposite of the way that he got this written.” [52-1] at 40-41, 153:16-154:4. When Advocate followed up by asking what Crum did recall, he said: “I don't - I don't remember the incident.” Id. at 41, 154:5- 6.

         On June 22, 2015, Matthews gave Crum a Level 2 CAN, which stated that Crum slept while on duty and that he failed to communicate with fellow public safety officers. [56] ¶ 10; see also [52-1] at 300, 304. Matthews concluded that Crum engaged in such behavior after Matthews reviewed relevant video footage and conducted interviews with relevant staff. [56] ¶ 11. Then, on September 22, 2015, Matthews gave Crum a Level 3 CAN, which stated that Crum failed to properly screen a patient's property for contraband. Id. ¶ 19; see also [52-1] at 375; [52-5] at 108. Matthews concluded that Crum engaged in such behavior after Matthews reviewed video footage and conducted interviews with staff. [56] ¶ 20. Per advice from Advocate's Associate Relations Specialist, Robert Favaro, Matthews applied Advocate's Just Culture Decision Matrix to Crum's case and Matthews decided to give Crum a Level 3 CAN for the incident, instead of terminating Crum at that time. Id. ¶ 21; [52-5] at 2, ¶ 2.

         Crum used Advocate's Associate Conflict Resolution program to object to all three of the CANs he received. [56] ¶¶ 6, 13, 22. Pursuant to this program, Crum met with Matthews, Favaro, and the Administrator of Finance on two separate occasions-first to discuss his concerns about the Level 1 CAN, and next to discuss his concerns about the Level 2 CAN. Id. ¶ 8, 13. Ultimately, the finance administrator decided to uphold both CANs. Id. ¶¶ 8, 13.[3] With respect to his Level 3 CAN, Crum met with Matthews and Favaro to discuss his objections, id. ¶ 22, [4]and after that meeting, Matthews decided to uphold the Level 3 CAN, [52-5] at 8, ¶ 35.

         Unsatisfied with Advocate's reconsideration of his disciplinary actions, Crum pursued arbitration through Advocate's Conflict Resolution program. [56] ¶ 24. Crum wished to arbitrate all three of his CANs, but Favaro decided to narrow the subject of the arbitration to Crum's Level 3 CAN, since the first two were over six-months old, thereby rendering them inactive under Advocate's policy. Id. The arbitration did not occur because Crum did not submit the required forms. Id. ¶ 27; see also [52-5] at 10, ¶¶ 43-46.

         Nevertheless, Crum maintains that the incident involved in the Level 1 CAN “happened just the opposite of the way that Matthews wrote it down.” [67] ¶ 61. In other words, it was the other officer and not Crum who displayed rude and discourteous behavior. Id. Although Crum does not believe that he was rude, he does admit that he used the radio to broadcast a comment about the other officer sleeping. Id. As for the Level 2 CAN, Crum says that Advocate relied on an unsubstantiated report by a security guard that Crum was sleeping and that the image that the guard supposedly took of Crum does not look like Crum nor does it look like a sleeping person. Id. ¶¶ 63-64. With respect to the Level 3 CAN, Crum says he was at home and not working when the patient was improperly screened and was able to sneak a box cutter into the facility. Id. ¶ 65. Crum points to surveillance video of him working during his midnight shift. Id. Such evidence, however, does not prove that Crum was at home and not working earlier in the day, when the box cutter escaped detection. Crum's reliance on statements by the nurse who authored a report about the incident is improper, see Id. ¶¶ 66-67; the nurse's statements are inadmissible hearsay. The same is true of Crum's reference to conversation he overheard two staff members having about the incident. Id. ¶ 68.

         On March 6, 2016, the Chicago Police Department arrested Crum because a fellow public safety officer had called the police alleging that he felt threatened by Crum. [56] ¶ 28; see also [52-4] at 11, ¶ 45; [67] ¶ 42. Matthews was not on-site during the incident, and he did not direct anyone to call the police, nor did he request that the police arrest Crum. [56] ¶ 28. Due to company policy, Advocate suspended Crum during the investigation into his arrest.[5] Id. ¶ 29. After the investigation concluded, Advocate did not discipline Crum; instead, Advocate reinstated Crum and after some delay due to an “oversight, ” Advocate granted Crum his back pay for the duration of his suspension.[6] Id. ¶¶ 30-31.

         A few months before the arrest, Matthews rated Crum as “Approaching Expectations” on his performance evaluation because of Crum's “performance issues.”[7] Id. ¶ 34; see also [52-4] at 12-13, ¶ 58. Several weeks after his arrest, Crum met with Matthews and the Director of Human Resources, Bill Corbin, to discuss his continuing poor performance. [56] ¶ 36. Matthews and Corbin presented a “Memo of Concern” to Crum and instructed Crum to obey its instructions since he was already on a Level 3 CAN. Id.

         In 2016, Crum asked Matthews for a shift transfer within Advocate's Public Safety Department. Id. ¶ 79. Crum also tried to transfer to other Advocate facilities. Id. ¶ 83. At the time of those applications, Crum's Level 3 CAN was in effect. Id. Advocate rejected Crum's four applications and offered employees ranging from ages thirty-three to sixty-one each of the positions. Id. Although Crum believes that HR, specifically Corbin and Favaro, prevented his applications from being accepted, Crum's citation to the record does not contain admissible evidence to support his theory. Id.; see also [67] ¶ 85. Rather, recruiters at Advocate's headquarters rejected Crum's applications at the initial screening phase, and neither Corbin nor Favaro had any involvement in that process. [56] ¶ 86. Three of the positions to which Crum applied would not have provided a higher pay rate than what Crum was already receiving at the time he submitted his applications; and one of the positions would have provided a lower pay rate. Id. ¶ 84.

         Advocate terminated Crum on June 23, 2016; the termination notice stated that on May 31, 2016, Crum failed to properly communicate with his fellow officers and that he failed to double-check a patient's property, as he was required by Advocate policy. Id. ¶ 40. Crum does not believe that the reasons Matthews gave for terminating him were genuine; he says that Matthews terminated him only after Crum refused to take a retirement option and that only after his refusal did Matthews claim that he was terminating Crum for failing to communicate with co-workers, failing to double-check a bag, and failing to wand a bag (all of which Crum says was not true). Id. Crum's assertions, however, do not controvert Advocate's statement regarding Matthews's belief about his own reasoning. Matthews investigated the May 31, 2016 incident by reviewing relevant surveillance footage, emails, and records. Id. ¶¶ 40-41. Matthews also discussed the matter with Corbin and Advocate's legal department, which led Matthews and Corbin to the decision that termination was the appropriate response. Id. ¶ 42. Crum met with Matthews and Corbin to discuss his policy violations; but since Crum did not provide any information to negate their conclusion that he had violated Advocate policy, they informed Crum that Advocate was terminating him.[8] Id. ¶¶ 43, 45. The parties dispute whether they discussed Crum's retirement during this meeting.[9] Id. ¶ 43.

         Using Advocate's Conflict Resolution program, Crum objected to his termination. Id. ¶ 50. This prompted Matthews and Favaro to contact Crum to schedule a meeting. Id. Crum did not respond and eventually, Advocate closed the Conflict Resolution case regarding his termination. Id. Yet, Crum remains convinced that the asserted bases for each of his CANs were invalid. [67] ¶ 60.

         B. Advocate's Treatment of Older Employees

         There is no evidence that Advocate had a plan to replace older employees with younger employees.[10] [56] ¶ 71. The email that Crum relies on to claim that Advocate has such a policy, can be summarized as follows: Corbin emailed Matthews on November 10, 2015 to “check in on the progress and accountability” of the associates that Matthews had rated as “a low performer” because Advocate sought to gather more data about its “efforts to move low performers up or out.” [65-2] at 50. Corbin requested that Matthews identify any associate that had been given “a DAW, Memo of Concern, Coaching, or other type of Pre-Corrective action notification” and to identify any associate who is improving and who will no longer be a low performer. Id. at 51. Crum's name and three other names (Franklin, Genever, and Robert) appeared under “Current List.” Id. Matthews responded: “Ms. Franklin has retired. Mr. Crum as you know has been struggling.” Id. at 50.

         Facially, Corbin's email describes Advocate's intention to move low performers “up or out”; and Matthews's response confirms that Crum continues to not meet performance expectations. Crum testified that the three employees listed in the email were “in their 60s, ” [52-2] at 23, 291:5-19, and the record shows that Advocate hired a forty-two year old to fill Franklin's position, and a forty-four year old to fill William's position, [56] ¶ 70. But this is not sufficient to permit an inference that “low performers” was code for “old employees.” The majority of Matthews's reports were above the age of forty, id. ¶ 73, and he terminated and disciplined several public safety officers who were younger than Crum, id. ¶ 72:

Name

Age

Disciplinary Action

Gillespie Lamont

37

Termination

Kenneth Brown

43

Termination

Elizabeth Pinto

47

Termination

Williams Mosezell

50

Level 1, 2, and 3

Ron Belardo

53

Level 1

Miguel Perez

35

Level 2

Juan Lopez

31

Level 1, Termination

Dwayne Jackson

35

Termination

Jarrett Bridgman

50

Termination

Frederick Jones

43

Level 1

Id. Moreover, as of the filing of Advocate's Statement of Facts, Advocate has not filled Crum's position with another employee. Id. ¶ 50.

         The parties dispute whether Matthews: (1) hit Crum on the back of his neck during a briefing on May 21, 2012, id. ¶ 64; (2) exposed Crum to “hazardous material” (bed bugs), id. ¶ 65; (3) denied Crum a bullet-proof vest, id. ¶ 67; and (4) told or otherwise threatened other officers to retire, id. ¶ 69; [67] ¶ 12. For purposes of this summary judgment motion, I assume Crum's version of these events to be true.

         C. EEOC Charges

         While employed at Advocate, Crum filed three charges with the EEOC against Advocate. The first two were on January 11, 2012 and June 11, 2015; for both, Crum filed a charge for race and age discrimination, as well as retaliation. [56] ¶¶ 76-77. He did not file a lawsuit based on either charge, though. Id. Matthews does not recall Crum filing these charges, [11] and Favaro learned that Crum filed these charges after Crum's termination.[12] Id.

         On May 2, 2016, Crum went to the EEOC to complain about his treatment at Advocate; Crum did not recall if he ever told anyone at Advocate that he had visited the EEOC on that date. Id. ΒΆ 74. Neither Matthews, Corbin, or Favaro was aware that Crum intended to file ...


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