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Marcial v. Rush University Medical Center

United States District Court, N.D. Illinois

August 21, 2019

MARICEL MARCIAL, Plaintiff,
v.
RUSH UNIVERSITY MEDICAL CENTER; DR. MICHAEL KREMER, in his individual capacity; RAY NARBONE, in his individual capacity; and JILL WIMBERLEY, in her individual capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          Susan E. Cox Magistrate Judge

         For the reasons discussed below, Defendants' Motions for Summary Judgment [Dkt. 126, 130] are granted, and judgment is entered in favor of the Defendants.

         BACKGROUND

         Plaintiff Maricel Marcial (“Plaintiff”) is an Asian woman of Filipina descent, who was over 40 years old during the time period relevant to this matter. (Dkt. 143 at ¶ 3.) In 2012, Plaintiff, who had previously worked as a registered nurse in an Intensive Care Unit (“ICU”), enrolled in the Certified Registered Nurse Anesthetist (“CRNA”) program at the Rush University Medical Center (“Rush”) College of Nursing. (Id. at ¶2.) Plaintiff entered the CRNA program with 27 other Student Registered Nurse Anesthetists (“SRNA”) in her cohort, including 23 women, six other minority students, and one other student over 40 years old. (Id. at ¶ 4.)

         The first portion of the CRNA program was a didactic curriculum, which was primarily classroom learning, and was successfully completed by Plaintiff. (Id. at ¶ 33.) During this portion of the program, SRNAs also participated in a “clinical practicum, ” which gives students (including Plaintiff) “incremental experience under the supervision of CRNAs.” (Id. at ¶ 34.) The second portion of the program is a 15-month clinical residency, in which SRNAs assist CRNAs in providing anesthesia to patients. (Id. at ¶ 36.) CRNAs would supervise SRNAs during their residency, and would submit “formative evaluations, ” detailing the SRNAs' performance. (Id. at ¶ 38.)

         SRNAs were given a student handbook, which provided Rush's policy on evaluations and clinical grades for SRNAs. (Id. at ¶ 17.) In relevant part, the handbook states:

First year students need to obtain daily (formative) evaluations from physicians and CRNAs with whom they are assigned. A summative evaluation is prepared at the end of each trimester. During the clinical immersion residency, students will obtain at least two clinical evaluations each week, and will continue to have summative evaluations prepared. . . . Clinical practicum and clinical residency course grades are pass-fail. A passing grade is awarded if the student consistently meets or exceeds . . . applicable rotation objectives for clinical residency as demonstrated by a majority of satisfactory or higher ratings on formative evaluations.
Multiple unsatisfactory ratings or repeated patient safety concerns may be grounds for course failure. . . . An Academic Improvement Form will be generated to document written warning of potential course failure.

(Id. at ¶ 17.)

         According to CRNA program policy, a student who received more than three formative evaluations with unsatisfactory ratings in areas impacting patient safety may receive a failing clinical residency grade. (Id. at ¶ 44.)

         Plaintiff began her clinical residency in May 2013. (Id. at ¶ 46.) On May 10, 2013, Plaintiff was assigned to work with Defendant Jill Wimberly for the first time; Defendant Wimberly rated Plaintiff's performance as satisfactory and wrote positive comments on Plaintiff's formative evaluation form. (Id. at ¶ 47.) On June 11, 2013, Plaintiff was assigned to work with Eva Fisher, another CRNA at Rush. (Id. at ¶ 48.) On an evaluation dated June 18, 2013, Ms. Fisher wrote that Plaintiff had made mistakes while working on an infant patient, including having the wrong size endotracheal tube and drawing up the incorrect medication dosage for the infant's weight. (Id. at ¶ 49.) Plaintiff contends that Fisher did not say anything negative to her about her performance on June 11, and that she did not receive the evaluation dated June 18 until June 22. (Id. at ¶ 48.) Plaintiff also claims that she saw Ms. Fisher and Defendant Wimberly speaking in the nurse's lounge on June 21, and that their facial expressions and gestures suggested that they were speaking about Plaintiff in a disparaging way. (Id. at ¶ 48.) According to Plaintiff, “[t]he circumstances raise a fact issue that [Fisher's evaluation] was backdated in collusion with Wimberly.”[1] (Id. at ¶ 48.)

         On June 20, 2013, Plaintiff was once again assigned to Defendant Wimberly's supervision. (Id. at ¶ 50.) On this occasion, Wimberly claimed to observe several deficiencies, and her evaluation of Plaintiff reflected those issues, including incorrect dosing and having the incorrect breathing tube during the operating room setup. (Id. at ¶¶ 50-51.) Plaintiff maintains that this evaluation is incorrect and misleading, and that Wimberly was highly emotional and not impartial in her judgment of Plaintiff's performance. (Id.)

         On July 1, 2013, Plaintiff was assigned to work with Alida Hooker, another CRNA at Rush. (Dkt. 129-12 at 24.) Ms. Hooker rated Plaintiff as unsatisfactory in the area of “recogniz[ing] intraoperative complications (utilizing ECG, invasive and/or noninvasive monitors and physical assessment.” (Id.) The following day, Defendant Michael Kremer, Program Direct of the CRNA program, emailed Ms. Hooker for feedback on Plaintiff's performance because Plaintiff “had some challenges, ” and Kremer wanted “to stay on top of how things are going.” (Id. at 26.) Ms. Hooker responded that Plaintiff was prepared during “set up, ” but “appeared disorganized once we got to the intubation.” (Id.) Ms. Hooker also noted that Plaintiff “kept an eye on the vitals, but seemed to take them as they came, not proactive in treating them and even realizing what [blood pressure] was too low.” (Id.) Ms. Hooker concluded that Plaintiff “shows some difficulty with prioritizing and then following through and finishing tasks” and “becomes scattered and acts in a nervous rush.” (Id.) It is Plaintiff's position that the patient in question had a 20% drop in blood pressure on only one reading, and that the standard of care only requires action on the basis of vital sign trends, not a single data point. (Dkt. 143 at ¶ 57.)

         Plaintiff then met with Defendant Kremer to discuss her need to improve her clinical performance, and the possibility of dismissal if she continued to receive unsatisfactory clinical evaluations. (Id. at ¶ 60.) Defendant Kremer provided Plaintiff with a copy of her Academic Improvement Form; the Academic Improvement Plan stated that a student “requires a formal academic improvement plan when one or more course objectives are not being met, ” which “if not addressed, put the student at risk for receiving a non-passing final grade in this course.” (Dkt. 129-14 at 1.) The Academic Improvement Form highlighted that Plaintiff had received “unsatisfactory ratings in the areas of patient safety, clinical judgment and professionalism, ” and reflected that Defendant Kremer discussed the need for Plaintiff to be more consistent in her clinical performance and the availability of counseling services. (Dkt. 143 at ¶¶ 61-62.)

         On July 23, 2013, Plaintiff was evaluated by Dr. Judith Wiley. The evaluation rated Plaintiff as “below the level expected” in airway management and recognizing intraoperative complications. (Dkt. 129-12 at 34.) Dr. Wiley also noted that Plaintiff “[n]eed[ed] more direction that I would expect at this point of the program, ” and that she could not answer questions regarding material covered during the didactic program. (Id.) She also stated that Plaintiff “seems to have difficulty remembering or following directions.” (Id.) Plaintiff states that this review is misleading. (Dkt. 143 at ¶ 63.)

         On July 30, 2013, Plaintiff was working under the supervision of CRNA Amy Gawura. (Id. at ¶ 66.) Ms. Gawura rated Plaintiff as “unsatisfactory” in the following areas: “psychomotor skills, ” “clinical judgment, ” and “professionalism.” (Id.) Gawura indicated that Plaintiff was unsure whether to ventilate a patient using a mask airway or an endotracheal tube, and that Plaintiff's mistake caused a breathing problem in the patient that Ms. Gawura had to correct. (Id. at ¶ 66.) Plaintiff again does not believe that the criticisms are correct or true. (Id.)

         In August 2013, Plaintiff met with Defendant Kremer and Dr. Wiley to discuss her failure to improve her clinical performance, and Plaintiff decided to withdraw nonpassing from her clinical residency. (Id. at ¶¶ 68-69.) Plaintiff requested a leave of absence, which was granted, and was scheduled to return at the start of the new academic term in January 2014. (Id. at ¶ 70.)

         During Plaintiff's leave of absence, she met with Defendants Kremer and Narbone, Chief Anesthetist and Director of Operating Room Services, to address the challenges Plaintiff would face upon her return to the program. (Id. at ¶ 72.) Defendant Kremer presented Plaintiff with other programs at Rush to which she could transfer, and Kremer requested Narbone to minimize Plaintiff's assignments with Defendant Wimberly.[2] According to Plaintiff, Narbone told Plaintiff she was “delusional” to think she could succeed in the CRNA program, and said “I don't suppose you are the youngest in your class, so why waste your time on something that will make you miserable?” (Dkt. 151 at ¶ 10.)

         On November 19, 2013, Plaintiff reviewed and signed a Student Learning Contract in anticipation of her return to the CRNA program; the Student Learning Contract provided certain benchmarks for Plaintiff's improvements in clinical performance and professionalism. (Dkt. 143 at ¶¶ 75-76.) Plaintiff claims that Kremer pressured her to withdraw from the CRNA program at this meeting, stating “you choose not to accept counsel from people who vehemently feel for many years that your chance of being successful are slim at best.” (Dkt. 151 at ¶ 11.)

         Plaintiff returned to the clinical residency course in January 2014, and met weekly with Defendant Kremer to review her progress. (Dkt. 143 at ¶¶ 78-79.) Upon her return to the program, Plaintiff's performance was rated as unsatisfactory by 13 different CRNAs. (Id. at ¶ 79.) Among the examples that Plaintiff does not dispute:[3]

• On January 9, 2014, CRNA Kathleen Oksvarek rated Plaintiff as unsatisfactory in the area of clinical judgment, noting that Plaintiff had failed to notice an abnormal EKG. (Id. at ¶ 80.)
• On January 15, 2014, CRNA Lea Forester rated Plaintiff as unsatisfactory in the areas of patient safety, clinical judgment, and professionalism. (Id. at ¶ 81.)
• On January 24, 2014, CRNA Rene Przygodzka noted that Plaintiff needed “continuous support.” (Id. at ¶ 89.)
• On February 3, 2014, CRNA Jillian Klunk rated Plaintiff as unsatisfactory in the areas of psychomotor skills and professionalism.
• On February 13, 2014, Dr. Wiley rated Plaintiff's performance as below the level expected. (Id. at ¶ 94.)
• On February 18, 2014, Dr. Wiley rated Plaintiff's performance as below the level expected or unsatisfactory in the areas of patient safety, psychomotor skills, and ...

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