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Otetiani v. Advocate Health And Hospital Corp.

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

August 1, 2018

JAMON OTETIANI EL, Plaintiff,
v.
ADVOCATE HEALTH AND HOSPITAL CORP., d/b/a ADVOCATE MEDICAL GROUP, Defendants.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER UNITED STATES DISTRICT JUDGE

         Plaintiff Jamon Otetiani El, who identifies as Native American, alleges that his former employer, Defendant Advocate Health and Hospital Group, violated Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 by discharging him on the basis of race. Defendant has moved for summary judgment [28], contending that Otetiani El was discharged because of his unsatisfactory job performance, not because of his race. (Memo. of Law in Supp. of Def.'s Mot. for Summ. J. [29] (“Def.'s Opening Br.”), 1.) For the reasons explained here, the court concludes there are no disputes of material fact on this issue and that Advocate is entitled to judgment as a matter of law.

         FACTUAL BACKGROUND

         I. Requirements of LR 56.1

         The requirements established by this court's Local Rule 56.1 are familiar: a party moving for summary judgment must submit a statement of material facts consisting of short numbered paragraphs, each one supported by specific references to the record and other supporting materials. N.D.Ill. L.R. 56.1(a)(3). The Rule requires, further, that a party opposing summary judgment respond to the moving party's numbered paragraph and include, “in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon . . . .” N.D.Ill. L.R. 56.1 (b)(3). To ensure that a pro se litigant understands these requirements, our Local Rule 56.2 directs that the moving party provide such a litigant with notice of the requirements for responding properly and the consequences for failing to do so. Defendant Advocate has served the appropriate notice in this case [31]. Because Plaintiff's response to the motion nevertheless does not comply with Local Rule 56.1, Advocate argues that it must be disregarded. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005) (district court may discount or disregard a pro se litigant's statement of facts that does not comply with Local Rule 56.1).

         In his Rule 56.1 response [34], Plaintiff has not responded to the numbered paragraphs in Defendant's Rule 56.1 statement and failed to support his assertions with citations to specific page numbers or paragraph numbers in the record. The court nevertheless has reviewed his response liberally, adopting those factual allegations that Defendant has admitted or are adequately supported by evidence in the record.

         II. Background

         Defendant Advocate, the largest healthcare system in Illinois, is a not-for-profit organization that operates hospitals, outpatient centers, immediate care clinics, surgical centers, laboratories, imaging centers, and physical therapy locations. (Gustafson Decl. ¶ 4, Ex. C to Def.'s Statement of Material Facts [30] (“DSOF”).) In 1994, Advocate hired Plaintiff to work as a Radiologic Technologist at an Advocate facility that provides x-ray examinations and other services in South Holland, Illinois. (Id. at ¶ 5; Otetiani El Dep. 33:6-9, 78:3-4, Ex. B to DSOF.) For the first 16 years of his employment, Plaintiff identified as African American and was known by the name James Kane. (Otetiani El Dep. 5:12-13, 19:7-13, 21:9-17.) Around 2009, through his own independent research, Plaintiff discovered that he is in fact Native American. (Id. at 19:19-24, 20:1-6.) In August 2010, Plaintiff legally changed his name to Jamon Otetiani El. (Id. at 18:15-16, 19:7-13.) Later that year, Plaintiff notified Advocate's HR department of his name change and changed his race-identification in Advocate's records to Native American. (Id. at 18:15-22, 19:8-13.)

         Defendant maintains an Equal Employment Opportunity Policy under which all Advocate employees are expected to “act fairly [and] without regard to [employees'] race, color, creed, national origin, ethnicity, gender, age, sexual orientation, or disabilities.” (Advocate Equal Employment Opportunity Policy (“EEO Policy”), Ex. D to DSOF.) Advocate has also adopted a Corrective Action Policy that seeks to ensure discipline is administered fairly and consistently to all employees. (Gustafson Decl. ¶ 6.) The Corrective Action Policy identifies the following as rule violations: “negligence, abuse or inattention to patient care, ” “failure or refusal to perform assigned duties or carry out instructions, or engaging in any other insubordinate behavior, ” “failure to adhere to departmental, facility, or System standards of quality, ” and “willful or careless disregard of safety rules.” (Corrective Action Policy 2-3, Ex. E to DSOF.) The policy also outlines three types of disciplinary measures which Defendant may take against an employee prior to termination: Level 1 Warning, Level 2 Warning, or Level 3 Warning. (Id. at 3.) Advocate's Policy also identifies certain rules, those critical to patient safety, as “Red Rules.” (Id. at 2.) Defendant has the discretion to skip a warning level when an employee is guilty of a serious violation such as a Red Rule violation. (Id. at 3.)

         Radiology Supervisor Ruby Johnson, an African American, was Plaintiff's direct supervisor from 2013 through the time of his discharge. (Johnson Decl. ¶¶ 1, 4, Ex. F to DSOF.) Johnson reported to the Imaging Services Manager, Camilla Nix, Caucasian, who reported to the Director of Radiology, Karen Tyrell Isaacs, also Caucasian. (Id. at ¶ 5; Gustafson Decl. ¶ 7.) Plaintiff asserts, without citing any supporting evidence, that Nix was his direct supervisor, but Johnson has attested that she herself, together with Nix and Isaacs, administered the Corrective Action Policy in disciplining Plaintiff. (Johnson Decl. ¶ 6.)

         III. Plaintiff's Disciplinary History

         On May 13, 2013, Plaintiff entered the waiting room and called out the name of a patient scheduled for an x-ray procedure. An Hispanic woman who did not speak English responded. (Otetiani El Dep. 82:4-13.) Plaintiff asked the woman to confirm that was her name, and she did; after the x-ray was performed, however, someone determined that the woman x-rayed was the wrong patient. (Id.; Johnson Decl. ¶ 7.) The record does not specify who made this determination, or how, but Plaintiff admits that he identified the wrong patient. (Pl.'s Compl. [7], 4.) He admits, further, that the correct procedure is to ask for the patient's name as well as his or her birth date, and that he failed to ask this patient for her birth date. (Otetiani El Dep. 82:2-24.) After this incident, Johnson, Nix, and Isaacs discussed it and agreed that performing an x-ray on an incorrect patient jeopardizes patient safety and that Plaintiff's failure to properly identify the patient constituted a Red Rule violation. (Johnson Decl. ¶ 8.) Further, because of the seriousness of the violation, Johnson, Nix, and Isaacs bypassed the step of issuing a Level 1 Warning to Plaintiff and instead proceeded directly to a Level 2 Warning. (Id.; May 22, 2013 Corrective Action, Ex. G to DSOF.) Plaintiff did not challenge the disciplinary action; he admittedly “felt bad about making such a mistake.” (Pl.'s Compl. 4.)

         On June 12, 2013, Plaintiff received an order from a doctor for two sets of x-rays, one of a patient's hand and another of the patient's wrist. (Otetiani El Dep. 46:8-23.) Plaintiff personally believed that both of the necessary views could be captured in one x-ray and therefore decided on his own to combine the two x-rays. (Id. at 89:3-7, 20-24, 90:1-9; Johnson Decl. ¶ 9.) Plaintiff did not consult with the ordering doctor nor his supervisor about this decision, even though he knew that Advocate policy requires Radiology Technologists to perform x-rays as requested by the ordering doctor. (Otetiani El Dep. 90:10-24, 91:3-24; Advocate X-Ray Procedures, Ex. H to DSOF.) In his Statement of Facts, Plaintiff asserts that he chose to combine the x-ray orders because the patient was a child and he wanted to save the child from unnecessary radiation. (Pl.'s Statement of Facts [34] (“PSOF”), 3.) Notably, the x-ray record itself identifies the patient's age as 82; though Plaintiff disputes this, he offers nothing to rebut the hospital record beyond his own suspicion that Advocate falsified records of the patient's age. (Johnson Decl. ¶ 10; June 12, 2013, X-Ray Order, Ex. I to DSOF.) There is no evidence of such falsification, but the court notes that it makes no difference, as Advocate policy requires compliance with a doctor's x-ray orders, regardless of the patient's age. (Johnson Decl. ¶ 10; Advocate X-Ray Procedures.) Plaintiff also suggests that the doctor did not complain about his decision to take just one x-ray. (PSOF 3.) Again, the court presumes that discipline for a rules violation is appropriate regardless of whether a doctor has complained. In any event, Plaintiff cites nothing in support of this suggestion, either, and Defendant has submitted a sworn statement from Nix that the doctor did indeed complain about Plaintiff's failure to follow the x-ray orders. (Nix Reply Decl. ¶ 4, Ex. A to Def.'s Resp. to PSOF [39].)

         On June 27, 2013, Johnson issued a Level 3 Final Warning to Plaintiff for his failure to follow the doctor's x-ray orders on June 12. (June 27, 2013 Corrective Action, Ex. J to DSOF; Otetiani El Dep. 45:19-24.) Plaintiff knew that this level of warning meant that any further disciplinary action taken against him within 12 months could result in his termination. (Otetiani El Dep. 92:10-15.) Plaintiff contends that a similarly-situated employee, who is not Native American, engaged in the same type of violation and was not disciplined (id. at 93:9-24), but he again fails to cite to any evidence to support this allegation. For its part, Defendant has presented evidence that the other employee to whom Plaintiff refers, who incorrectly performed an abdominal x-ray, was indeed disciplined-he received a Level 1 Warning for this error. (Walter Johnson Corrective Action Notice, Ex. M to DSOF.)

         Pursuant to Advocate Policy, Plaintiff appealed his Level 3 Warning. When a disciplinary measure is appealed, Advocate convenes an arbitration panel to conduct an impartial review of a disciplinary decision. The panel consists of three members: a Facilitator from the Human Resources department, a Management Panel member, and an Associate Panel member who may be chosen by the employee at issue. (Favaro Decl. ¶¶ 4-5, Ex. B to Def.'s Resp. to PSOF.) A majority vote of the panel makes the decision binding and final. (Id. at ¶ 5.)

         The arbitration panel formed to review Plaintiff's Level 3 Warning consisted of John Favaro as the Facilitator from HR, Antwinette Wimbish as the Management Panel member, and Samuella McKnight as the Associate Panel member. (Id. at ¶¶ 3-5; Wimbish Decl. ¶¶ 3-5, Ex. C to Def.'s Resp. to PSOF.) The arbitration took place on September 20, 2013, and resulted in upholding the disciplinary action. (Id.; Otetiani El Dep. 122:5-10.) Plaintiff alleges that the arbitration process in his case was unfair and that the vote cast by Samuella McKnight (the arbitrator he had selected) “wasn't considered.” (PSOF 7-8.) He also asserts that Ruby Johnson, who was not part of the arbitration panel, was nevertheless permitted to vote. (Id.) When asked at his deposition to identify the source for his assertions regarding McKnight and Johnson, however, Plaintiff refused to do so. (Otetiani El Dep. 51:8-52:2.) In opposition to summary judgment, Plaintiff effectively identifies his source: he has submitted the declaration of Ms. McKnight, who contends her vote was ignored and Ruby Johnson's was counted instead. (See Second McKnight Decl. ΒΆΒΆ 4-8, Ex. L to PSOF.) Plaintiff's failure to identify the source of this information in discovery arguably deprived Defendant of the opportunity to depose Ms. McKnight or otherwise rebut her claims; but the court notes ...


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