Nash v. County Of Cook

Filing 166

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 7/16/2012.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VIETTA L. JOHNSON, M.D., and DANIEL IVANKOVICH, )
M.D.,
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF COOK, ROBERT R. SIMON, M.D., AARON )
HAMB, M.D., and CLIFFORD CRAWFORD, M.D.,
)
)
Defendants.
)
)
)
KAREN NASH, M.D.,
)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF COOK,
)
)
Defendant.
)

08 C 2139
Judge Feinerman

08 C 3648
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Drs. Vietta L. Johnson, Daniel Ivankovich, and Karen Nash brought the first of these
consolidated suits (08 C 2139) against their former employer, Cook County, as well as Drs.
Robert Simon, Aaron Hamb, and Clifford Crawford, alleging First Amendment and Equal
Protection Clause violations under 42 U.S.C. § 1983 and claims under 42 U.S.C. § 1985, Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C.
§ 206(d)(1). Doc. 1 (all record citations are to Case 08 C 2139 unless otherwise indicated). Drs.
Johnson and Ivankovich then filed an amended complaint, which alleged the same claims and
terminated Dr. Nash as a plaintiff. Doc. 16. The same day, Dr. Nash filed her own suit (08 C
-1-

3648) against Cook County, alleging violations of Title VII and the Equal Pay Act. Doc. 1 (08 C
3648). The § 1985 claims have been dismissed. 2009 WL 331531 (N.D. Ill. Feb. 10, 2009)
(Cox, M.J.). Defendants have moved for summary judgment on the remaining claims. Doc.
205. The motion is granted in part and denied in part.
Background
The facts are stated as favorably to Plaintiffs as the record and Local Rule 56.1 allow.
On summary judgment, the court must assume the truth of those facts but does not vouch for
them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012).
Plaintiffs are three physicians formerly employed by the Cook County Bureau of Health.
The Bureau of Health operates seven health facilities in Cook County, including Stroger Hospital
and Provident Hospital. Doc. 265-1 at ¶ 10. Dr. Johnson, an African-American female, was the
Director/Chair of the Division of Orthopedic and Podiatric Surgery at Provident from 1998
through 2007. Id. at ¶ 1. Dr. Ivankovich, a white male, was a surgeon in Provident’s Division of
Orthopedics from 2002 through 2007. Id. at ¶ 2. Dr. Nash, an African-American female, was an
oral and maxillofacial surgeon at Provident from 1992 through 2007. Id. at ¶ 3; Doc. 265-8 at
40. The individual defendants are doctors as well. Dr. Simon was the Interim Bureau Chief of
the Cook County Bureau of Health from December 2006 through mid-2008. Doc. 265-1 at ¶ 7;
Doc. 265-5 at 117, 162. Dr. Crawford was Chairman of Provident’s Department of Surgery and
the direct supervisor of Dr. Johnson and Dr. Nash. Doc. 265-1 at ¶ 5; Doc. 269 at ¶ 40. Dr.
Hamb was Provident’s Chief Medical Officer. Doc. 265-1 at ¶ 6.
I.

Bureau of Health Budget Cuts and Plaintiffs’ Terminations
Cook County experienced a significant budget shortfall in 2007. Doc. 265-1 at ¶ 25. As

a result, Cook County Board of Commissioners President Todd Stroger tasked Dr. Simon with
-2-

cutting the Bureau’s budget. Id. at ¶ 26; Doc. 265-5 at 118. Dr. Simon solicited input from
various Bureau doctors regarding the impact of cutting certain services. Doc. 265-1 at ¶¶ 35, 37,
50. While Dr. Simon was reviewing possible cuts, Dr. Mark Gonzalez, the chair of orthopedics
at Stroger and acting bureau chair for orthopedics in early 2007, contacted Dr. Ivankovich to
discuss his future at Provident. Doc. 269 at ¶ 5. Dr. Gonzalez told Dr. Ivankovich that the
number of orthopedic surgeon positions at Provident would be reduced from two to one, and that
“they” wanted Dr. Ivankovich to fill the single remaining position. Ibid. Dr. Ivankovich
responded that Dr. Johnson also should be retained, but Dr. Gonzalez said that “they” did not
want to keep her. Id. at ¶ 6. The record does not reveal to whom Dr. Gonzalez was referring by
“they.” Dr. Gonzalez added that women in orthopedics do not do much and that Dr. Johnson
was “just another black physician troublemaker.” Ibid.; Doc. 265-8 at 36, ¶ 5. (It bears
repeating that the facts are stated in the light most favorable to Plaintiffs.)
In mid-February 2007, approximately six weeks after President Stroger first approached
him, Dr. Simon submitted a proposed budget with $100 million in cuts. Doc. 265-1 at ¶ 29; Doc.
269 at ¶ 7. The budget identified which Bureau departments and positions would be retained,
but did not identify which particular physicians would be retained. Doc. 269 at ¶ 1; Doc. 265-5
at 140-41. The proposed budget cut Provident’s orthopedic surgical and oral and maxillofacial
surgical services, with the thought that patients requiring those services could be seen at Stroger.
Doc. 265-1 at ¶¶ 40, 46, 64. The Board approved Dr. Simon’s proposed budget on February 23,
2007. Doc. 269 at ¶ 7.
Once the budget was approved, Dr. Simon was supposed to implement a process to
determine which doctors would be retained. Id. at ¶ 15; Doc. 265-8 at 32, ¶ 7. Where
specialities were being consolidated at one hospital, as with the consolidation of orthopedic
-3-

surgery at Stroger, all of the Bureau’s doctors in that specialty were to be given the opportunity
to apply and interview for the remaining positions. Doc. 269 at ¶ 15; Doc. 265-8 at 32, ¶ 7.
Interviews were conducted for doctors in several specialties. Doc. 269 at ¶ 22. The interviews
scheduled for orthopedic surgeons and for oral and maxillofacial surgeons were cancelled. Id. at
¶¶ 19, 21. According to Dr. Simon, those interviews were cancelled because those departments
would no longer exist at Provident. Id. at ¶ 20-21. But in fact the Bureau did continue to offer
some orthopedic services at Provident. Id. at ¶ 13.
On April 13, 2007, Drs. Johnson, Ivankovich, and Nash were terminated. Doc. 265-1 at
¶¶ 1-3. Before the terminations, Dr. Simon asked Drs. Hamb and Crawford for a report on Dr.
Johnson’s performance and Dr. Ivankovich’s productivity. Id. at ¶ 33; Doc. 265-4 at 6, 136. Dr.
Simon did not ask for assessments of any other doctors. Doc. 265-1 at ¶ 33; Doc. 265-4 at 6,
110. Dr. Simon testified that he does not remember receiving assessments of Drs. Johnson and
Ivankovich, and that his decision to terminate them was not based on their individual
productivity. Doc. 265-1 at ¶ 44; Doc. 265-5 at 156.
II.

Plaintiffs’ Speech
Prior to their terminations, Drs. Johnson and Ivankovich were publicly critical of the

proposed budget cuts. In 2006, Dr. Johnson spoke out against the cuts at a large community
meeting at a local church. Doc. 269 at ¶ 3. Dr. Johnson also participated in two rallies outside
Provident to protest the cuts. Doc. 265-1 at ¶ 93. Local television coverage of one of the rallies
showed Dr. Johnson saying that a 50% budget cut “would be a cut to the bone.” Ibid. Dr.
Johnson spoke about the community impact of the budget cuts on a local radio show, Doc. 269 at
¶ 3, during meetings with Operation PUSH, Doc. 265-1 at ¶¶ 87-88, 90, and during a Cook
County Board meeting, id. at ¶ 86; Doc. 209 at 141-143. In a February 2007 Chicago Tribune
-4-

article titled “Why Cook hospitals are losing millions,” Dr. Ivankovich was quoted as saying:
“Give me a social worker and someone to help with the paperwork, and I could generate millions
of dollars from Medicaid and Medicare a year.” Doc. 265-4 at 201.
III.

Work Environment
While employed at Provident, Drs. Johnson and Nash both had run-ins with Dr.

Crawford, their supervisor. During an evening meeting on August 21, 2003, Dr. Johnson told
Dr. Crawford that she needed to return home to relieve her babysitter. Doc. 269 at ¶ 23; Doc.
265-5 at 43. Dr. Crawford responded by asking whether her job was important to her, and then
told her to “go home and be a mother.” Doc. 269 at ¶ 23; Doc. 265-5 at 43. When Dr. Johnson
decided to stay, Dr. Crawford threatened to physically remove her from his office and to call
security. Doc. 269 at ¶ 23; Doc. 265-5 at 43. Dr. Crawford then stood up and stepped out from
behind his desk, making Dr. Johnson feel physically threatened. Doc. 269 at ¶ 23; Doc. 265-5 at
43-44. Following this incident, Dr. Crawford repeatedly asked Dr. Johnson whether she had
worked a forty-hour week. Doc. 265-5 at 38.
In June 2005, Dr. Johnson was involved in an operating room incident with another
doctor in her division. Dr. Crawford sided with the other doctor, who was male, without first
consulting Dr. Johnson about what had occurred. Doc. 269 at ¶ 25; Doc. 265-5 at 40-41. In
October 2005, Dr. Crawford accused Dr. Johnson of insubordination because, when supporting
two staff members during a meeting, she accused Dr. Crawford of lying. Doc. 269 at ¶ 25; Doc.
265-5 at 45-46. Also in 2005, when Dr. Johnson’s patients did not appear for surgery, Dr.
Crawford accused her of scheduling “ghost cases.” Doc. 269 at ¶ 25; Doc. 265-5 at 38. Dr.
Johnson complained about these events in a July 20, 2005 letter to Dr. Crawford regarding the

-5-

operating room incident, Doc. 265-7 at 4, and in an October 28, 2005 letter referencing that
incident and others, id. at 20.
In August 2006, Dr. Crawford wrote Dr. Johnson a letter reprimanding her for arriving
late to her clinic without giving prior notice. Doc. 210-18 at 1. Dr. Crawford did so even though
Dr. Johnson had notified the clinic that she would be late due to a medical condition that
required immediate care. Doc. 265-5 at 48-49. During a conversation with Drs. Ivankovich and
Johnson, Dr. Crawford questioned Dr. Johnson’s ability to perform difficult cases. Doc. 265-4 at
175. Dr. Ivankovich described the exchange as follows:
Crawford:

Are you going to do them? You can’t do those. You’re not
able to do those, are you?

Ivankovich:

Of course she can do it.

Johnson:

Of course I can do it.

Crawford:

She’s not able to do it? You’re not able to do it?

Ibid. Dr. Ivankovich understood Dr. Crawford’s statements to be “based on the fact that [Dr.
Johnson] was a foot and ankle surgeon and because she went into a field that was not manly in
doing spines and big hip replacements, that she was unable to do that. And I think he did pick on
that as sort of a recurring theme as a—just a slight of her ability, Dr. Johnson’s ability and her
competence.” Ibid.
The final incident between Dr. Johnson and Dr. Crawford occurred in January 2007. Dr.
Johnson’s division had refused to sign a letter regarding productivity. Doc. 265-5 at 37. Dr.
Crawford told Dr. Johnson that the doctors in her division needed to be more like Dr. Jackie
Harrison (a woman) and say “yes, sir” when Dr. Crawford asked them to do something. Id. at
36. Dr. Johnson testified that she believed Dr. Crawford’s actions were hostile. Id. at 61.
-6-

Between 2003 and 2007, Dr. Nash “constantly” had major arguments with Dr. Crawford,
some of which involved profanity. Doc. 265-5 at 101-02. In certain instances, the arguments
occurred when Dr. Nash “sided with Dr. Johnson.” Id. at 102. Dr. Nash observed similar
treatment by Dr. Crawford towards Dr. Johnson, but not towards other doctors. Ibid.
IV.

Compensation
During their last three years at Provident, Drs. Johnson and Nash were paid less than

male doctors at Stroger. Dr. Johnson was paid less than Dr. Gonzalez, the male chair of
orthopedics at Stroger. Doc. 269 at ¶ 35. Dr. Ivankovich testified that Drs. Johnson and
Gonzalez had equivalent duties in that both were “division chairmen for orthopedics[,] … had
meetings, … had budgets,” and supervised residents. Doc. 265-4 at 182, 184. Dr. Gonzalez
testified that his position at Stroger was “the equivalent of the position” that Dr. Johnson held at
Provident. Id. at 70. Stroger is a level one trauma facility while Provident is not. Doc. 265-1 at
¶ 13. The parties dispute whether the job of a non-emergency room physician doctor at a level
one trauma facility is comparable to the same job at a non-level one trauma facility.
Dr. Nash was paid less than Dr. Henry Fung, a male oral and maxillofacial surgeon at
Stroger. Doc. 269 at ¶ 36. Drs. Nash and Fung both trained at Stroger. Ibid.; Doc. 265-8 at 41.
Their responsibilities included being on-call, conducting clinics, performing surgery on major
oral and maxillofacial fractures and trauma, performing dentoalveolar surgery, and treating
major pathology. Doc. 269 at ¶ 36; Doc. 265-8 at 41.
Discussion
Dr. Johnson alleges: (1) that her termination was due to race and sex discrimination in
violation of Title VII and the Equal Protection Clause; (2) that her termination also was due to
retaliation in violation of the First Amendment; (3) that she was subjected to a hostile work
-7-

environment in violation of Title VII; and (4) that she suffered wage discrimination in violation
of Title VII and the Equal Pay Act. Dr. Nash alleges: (1) that her termination was due to race
and sex discrimination in violation of Title VII; (2) that she was subjected to a hostile work
environment in violation of Title VII; and (3) that she suffered wage discrimination in violation
of Title VII and the Equal Pay Act. Dr. Ivankovich alleges that his termination was due to
retaliation in violation of Title VII, the Equal Protection Clause, and the First Amendment.
Unless otherwise noted, Defendants will be referred to collectively even though Dr. Nash’s
claims are brought only against Cook County and not against Drs. Simon, Crawford, and Hamb.
I.

Wage Discrimination Claims
A.

Equal Pay Act

Drs. Johnson and Nash allege that Defendants violated the Equal Pay Act (“EPA”) by
paying them less than similarly situated male colleagues. Specifically, Dr. Johnson claims that
she was paid less as chair of orthopedics at Provident than Dr. Gonzalez, a male, was paid as
chair of orthopedics at Stroger. Dr. Nash claims that she was paid less as an oral and
maxillofacial surgeon at Provident than Dr. Henry Fung, a male, was paid as an oral and
maxillofacial surgeon at Stroger.
“The EPA prohibits employers from paying employees different wages based on gender.”
Warren v. Solo Cup Co., 516 F.3d 627, 629 (7th Cir. 2008). “To establish a prima facie case of
wage discrimination under the EPA, [Johnson and Nash] must show that: (1) higher wages were
paid to a male employee, (2) for equal work requiring substantially similar skill, effort and
responsibilities, and (3) the work was performed under similar working conditions.” Stopka v.
Alliance of Am. Insurers, 141 F.3d 681, 685 (7th Cir. 1998). “‘Skill’ includes … such factors as
‘experience, training, education, and ability.’” Id. at 686 (quoting 29 C.F.R. § 1620.15(a)).
-8-

“[T]he comparison at this juncture is between positions, not individuals.” Cullen v. Ind. Univ.
Bd. of Trs., 338 F.3d 693, 699 (7th Cir. 2003).
Defendants argue that Plaintiffs cannot satisfy the second and third prongs because the
work performed by doctors at Provident, a non-level one trauma facility, does not require
substantially similar skill and effort to the work performed by doctors at Stroger, a level one
facility. Defendants’ argument fails, at least at the summary judgment stage. True, Defendants
offer evidence tending to show that the cases handled at Stroger were different from those
handled at Provident. Doc. 265-1 at ¶¶ 15, 16, 18; Doc. 227 at 70, 104. But Plaintiffs counter
with an expert report from Dr. John Fairman, who opines that doctors at level one facilities are
not required to “have heightened skills, credentials, or experience, as compared to doctors at
other hospitals.” Doc. 265-9 at 3. Dr. Fairman also opines that the mere fact that a hospital is a
level one facility “does not mean that the doctors work harder … [or] … that the doctors handle
more complex cases in any significant numbers.” Ibid. Dr. Fairman’s opinion is based on his 27
years of experience working in health care administration, including a brief period as Provident’s
Chief Operating Officer. Id. at 2, 10. Although Defendants object to Plaintiffs’ use of Dr.
Fairman’s expert report, Doc. 270 at 19, the objection is forfeited because Defendants fail to
develop a legal argument or to cite any supporting authority. See Kramer v. Banc of Am. Sec.,
LLC, 355 F.3d 961, 964 n.1 (7th Cir. 2004); United States v. Berkowitz, 927 F.2d 1376, 1384
(7th Cir. 1991). In any event, Dr. Nash herself testified that the dental clinic and the oral and
maxillofacial surgery services at Provident and Stroger were comparable. Doc. 265-5 at 101.
“[A]t the summary judgment stage, the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Shaffer v. Am. Medical Ass’n, 662 F.3d 439, 443 (7th Cir. 2011) (quoting Anderson v.
-9-

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)) (internal quotation marks omitted). Because
there is a genuine dispute as to whether doctors at a level one facility perform work that requires
substantially similar skill, effort, and responsibilities to the work performed by doctors at a nonlevel one facility, summary judgment on the EPA claims is denied.
B.

Title VII

Drs. Johnson and Nash also allege sex-based wage discrimination in violation of Title
VII. Although Defendants’ initial brief sets forth the legal requirements for a Title VII wage
discrimination claim, its substantive argument addresses only the EPA claims. Doc. 239 at 1316. If Title VII and EPA were equivalent with respect to wage discrimination, this would not be
a problem. But they are not equivalent, as a defendant entitled to summary judgment on an EPA
claim still can be liable for wage discrimination under Title VII based on the same conduct. See
Loyd v. Phillips Bros., Inc., 25 F.3d 518, 524-25 (7th Cir. 1994) (“Even when jobs are not
sufficiently similar to constitute ‘equal work’ under the Equal Pay Act, a Title VII claim for
wage discrimination is not precluded.”). Accordingly, even though Defendants substantively
address the Title VII wage discrimination claim in their reply brief, any challenge to that claim
on summary judgment is forfeited. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009)
(“the district court is entitled to find that an argument raised for the first time in a reply brief is
forfeited”); Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 389 (7th Cir. 2003)
(“Because Volvo raised the applicability of the Maine statute in its reply brief, the district court
was entitled to find that Volvo waived the issue.”).
II.

Hostile Work Environment Claims
Drs. Johnson and Nash claim that they were subjected to a hostile work environment, in

violation of Title VII, due to sex-based harassment and mistreatment by Dr. Crawford. To
-10-

survive summary judgment on these claims, Drs. Johnson and Nash must demonstrate: “(1) that
[their] work environment was both objectively and subjectively offensive; (2) that the
harassment was based on [their sex]; (3) that the conduct was either severe or pervasive; and (4)
that there is a basis for employer liability.” Jajeh v. Cnty. of Cook, 678 F.3d 560, 2012 WL
1522014, at *3 (7th Cir. 2012). “Although sexual harassment is usually thought of in terms of
sexual demands, it can include employer action based on [sex] but having nothing to do with
sexuality.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007) (quoting 3
Lex K. Larson, Employment Discrimination § 46.01[3] (2d ed. 2000)).
Dr. Johnson’s evidence, which is set forth in the Background section and will not be
repeated here, shows that Dr. Crawford took a handful of actions over a three-year period that
she considered “hostile” and that he also repeatedly questioned whether she worked a forty-hour
week. Dr. Johnson’s hostile work environment claim fails because no reasonable jury could find
that the conduct in question—only some of which was based on sex—was severe or pervasive.
Title VII does not impose a “general civility code,” and “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (internal quotation marks and citation omitted). Relevant considerations include
“the frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Applying this standard in Scruggs v. Garst Seed Co., 587 F.3d 832 (7th Cir. 2009), the Seventh
Circuit affirmed a grant of summary judgment on a hostile work environment claim where the
plaintiff’s male co-worker introduced her to other employees as the person in charge of “cookies
-11-

with sprinkles”; said that he hated “pushy, aggressive women” and that the plaintiff was such a
woman; said that she was “made for the back seat of a car” and looked like a “dyke”; and
subjected her to mistreatment that was not explicitly sex-based, such as hitting her with a
clipboard. Id. at 836, 841. The court held that this conduct was not enough for the plaintiff to
show that the alleged sex-based harassment was “objectively severe or pervasive.” Id. at 841.
As the court explained, “relatively isolated gender-based comments and remarks” and
“occasional inappropriate comments … do not rise to the level of an objectively hostile work
environment under Title VII.” Id. at 835, 841.
In Patt v. Family Health Sys., Inc., 280 F.3d 749 (7th Cir. 2002), the Seventh Circuit held
that eight gender-based comments over several years were not sufficiently severe or pervasive to
support a hostile work environment. Id. at 754. The court likewise rejected a hostile work
environment claim in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir.1993), where the
plaintiff’s supervisor jokingly called her a “dumb blond,” placed his hand on her shoulder
several times, placed “I love you” signs in her work area, attempted to kiss her, and asked her
out on dates. Id. at 337. And in Rogers v. City of Chicago, 320 F.3d 748 (7th Cir. 2003), the
Seventh Circuit affirmed summary judgment where the plaintiff “c[ould] prove little more than
that she encountered a number of offensive comments over a period of months … [and]
experienced one incident of physical contact.” Id. at 753.
The conduct of which Dr. Johnson complains, while hardly admirable, is no worse than
conduct the Seventh Circuit has held insufficient to ground a hostile work environment claim. It
follows that summary judgment is warranted on her claim. See Ellis v. CCA of Tenn. LLC, 650
F.3d 640, 649-50 (7th Cir. 2011) (“in situating plaintiffs’ allegations among the case-law
guideposts, their limited number of claims are insufficiently severe to support a hostile work
-12-

environment claim”) (collecting cases); cf. Lapka v. Chertoff, 517 F.3d 974 (7th Cir. 2008)
(“assaults within the workplace create an objectively hostile work environment for an employee
even when they are isolated”); Valentine v. City of Chicago, 452 F.3d 670, 682 (7th Cir. 2006)
(holding that a hostile work environment claim could proceed where the plaintiff’s co-worker
“made [vulgar] comments or gestures directly to [her] on a nearly daily basis and touched her on
half a dozen occasions”).
The conduct of which Dr. Nash complains also falls short of being severe or pervasive.
The evidence at most shows that between 2003 and 2007, Dr. Nash had several arguments with
Dr. Crawford, some of which were sparked by her alignment with Dr. Johnson, and that Dr.
Nash observed Dr. Crawford treating Dr. Johnson poorly. A reasonable jury could not find from
this evidence that Dr. Nash satisfied the “severe or pervasive” element of her hostile work
environment claim. See Scruggs, 587 F.3d at 841; Rogers, 320 F.3d at 753; Patt, 280 F.3d at
754; Weiss, 990 F.2d at 337.
III.

Termination – Race and Sex Discrimination Claims
Drs. Johnson and Nash allege that their terminations were due to race and sex

discrimination in violation of Title VII, and Dr. Johnson also presses an equal protection claim
under § 1983. “The same requirements for proving discrimination apply to claims under Title
VII … and § 1983.” Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 850 n.7 (7th Cir.
2010). A plaintiff may avoid summary judgment through either the direct or indirect methods of
proof. See Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). Drs. Johnson and Nash
pursue both methods, which are considered in turn.

-13-

A.

Direct Method

“Under the ‘direct method,’ the plaintiff may avoid summary judgment by presenting
sufficient evidence, either direct or circumstantial, that the employer’s discriminatory animus
motivated an adverse employment action.” Ibid. Direct evidence would be “an outright
admission that an action was taken for discriminatory reasons.” Everett v. Cook Cnty., 655 F.3d
723, 729 (7th Cir. 2011); see also Coleman, 667 F.3d at 860. Circumstantial evidence is
“evidence that points to discriminatory animus through a longer chain of inferences.” Everett,
655 F.3d at 729. Such evidence typically falls into one of three categories: “(1) ambiguous
statements or behavior towards other employees in the protected group; (2) evidence, statistical
or otherwise, that similarly situated employees outside of the protected group systematically
receive better treatment; and (3) evidence that the employer offered a pretextual reason for an
adverse employment action.” Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir.
2011); see also Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 734 (7th Cir. 2011). The
appropriate focus “is not whether the evidence offered is direct or circumstantial but rather
whether the evidence points directly to a discriminatory reason for the employer’s action.”
Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008) (internal quotation marks omitted); see also
Everett, 655 F.3d at 729; Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 672 (7th
Cir. 2011).
Plaintiffs contend that Dr. Gonzalez’s (supposed) statement that Dr. Johnson was “just
another black physician troublemaker” constitutes direct evidence of discrimination. Doc. 265 at
12; Doc. 269 at ¶ 6; Doc. 265-8 at 36, ¶ 5. The contention is without merit. Precedent holds that
“[d]erogatory remarks based on an employee’s race can be direct evidence of discrimination if
they are made by the decisionmaker (or by a person who influences the decisionmaker), near the
-14-

time of the decision to fire the employee, and in relation to the employee’s discharge.” Ellis v.
UPS, Inc., 523 F.3d 823, 829 (7th Cir. 2008). “A decisionmaker is the person responsible for the
contested decision.” Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 379 (7th Cir.
2011) (internal quotation marks omitted).
Dr. Gonzalez’s statement does not qualify as direct evidence of discrimination. It is
undisputed that Dr. Simon, not Dr. Gonzalez, made the decision to terminate Drs. Johnson and
Nash. Doc. 270 at 6; Doc. 265-1 at ¶ 31. Although Plaintiffs assert that Dr. Gonzalez
“participated in a scheme to use the budget cuts to replace Provident’s orthopedic surgeons with
a Stroger surgeon,” Doc. 265 at 12, the evidentiary material they cite does not support their
assertion. Doc. 269 at ¶ 6; Doc. 265-8 at ¶ 5. Specifically, Plaintiffs cite Dr. Ivankovich’s
declaration that “Dr. Gonzalez said they were planning on getting rid of Dr. Johnson.” Doc. 269
at ¶ 6; Doc. 265-8 at ¶ 5. Dr. Ivankovich does not specify to whom Dr. Gonzalez was referring
when he said “they,” and his declaration provides no evidence that Dr. Gonzalez influenced Dr.
Simon’s decision to terminate Drs. Johnson and Nash. Because Dr. Gonzalez was not the
decisionmaker and because there is no evidence that Dr. Gonzalez influenced the actual
decisionmaker, Dr. Gonzalez’s statement is not direct evidence of discrimination. See Romans v.
Mich. Dep’t of Human Servs., 668 F.3d 826, 835-36 (6th Cir. 2012) (evidence of racial animus
by non-decisionmaker does not constitute direct evidence of discrimination absent evidence that
the non-decisionmaker influenced the decisionmaker); Shorette v. Rite Aid of Maine, Inc., 155
F.3d 8, 13 (1st Cir. 1998) (holding that a district manager’s arguably discriminatory comment
was not direct evidence of discrimination where the plaintiff “adduced no evidence that [the
manager] had authority to determine whether [the plaintiff] was to be retained by Rite Aid, nor
that [the manager] played any role in the decision to demote [the plaintiff] to key cashier”).
-15-

With respect to circumstantial evidence, Plaintiffs rely on record materials that show
essentially the following three facts. First, while Defendants created and then implemented a
policy for determining which doctors would be terminated in conjunction with the budget cuts,
Doc. 269 at ¶ 15; Doc. 265-8 at ¶ 7, Defendants did not follow that policy in deciding to
terminate Drs. Johnson and Nash, Doc. 269 at ¶¶ 19-21. Second, while Defendants claimed that
they planned to eliminate orthopedics at Provident, they did not in fact do so. Id. at ¶ 13. Third,
although Defendants claimed that they did not consider doctors’ individual characteristics in
deciding who to terminate, Dr. Simon in fact considered Dr. Johnson’s productivity. Doc. 265-1
at ¶ 33; Doc. 269 at ¶ 11; Doc. 215 at 72.
The only thing that can be inferred from this evidence is that Defendants’ explanation for
why Drs. Johnson and Nash were terminated is pretextual—that is, that the explanation is a lie
rather than the true reason they were terminated. See Diaz, 653 F.3d at 588 (a supervisor’s
irregularly structured hiring process is evidence of pretext); Hasan v. Foley & Lardner LLP, 552
F.3d 520, 531 (7th Cir. 2008) (pretext is shown by an employer’s decision to hire new people
after claiming that the plaintiff was terminated because her position was no longer necessary);
Germano v. Int’l Profit Ass’n, Inc., 544 F.3d 798, 807 (7th Cir. 2008) (contemporaneous
evidence conflicting with the employer’s proffered justification is evidence of pretext); Davis v.
Wis. Dep’t of Corrs., 445 F.3d 971, 976-77 (7th Cir. 2006) (an employer’s failure to follow its
own discipline policy is evidence of pretext); Rudin v. Lincoln Land Comm. Coll., 420 F.3d 712,
727 (7th Cir. 2005) (an employer’s failure to follow its own employment policy demonstrates
pretext). Plaintiffs do not argue otherwise; the section of their brief addressing circumstantial
evidence under the direct method of proof focuses exclusively on pretext. Doc. 265 at 10-17.

-16-

Evidence “that the employer offered a pretextual reason for an adverse employment
action” can support an inference of discrimination under the direct method. Coleman, 667 F.3d
at 860 (internal quotation marks omitted). However, the Seventh Circuit has held that pretext
evidence, standing alone, is insufficient under the direct method. In Venturelli v. ARC Comm.
Servs., Inc., 350 F.3d 592 (7th Cir. 2003), the court held that “[c]ircumstantial evidence under
the direct method … must allow a jury to infer more than pretext; it must itself show that the
decisionmaker acted because of the prohibited animus.” Id. at 601 (emphasis added). The court
reinforced the same point in Van Antwerp v. City of Peoria, Ill., 627 F.3d 295 (7th Cir. 2010):
[A]ssuming Van Antwerp marshaled enough circumstantial evidence to
show pretext, his claim of discrimination under the direct method would
still fail. Evidence offered under the direct method must allow a jury to
infer more than pretext; it must itself show that the decisionmaker acted
because of the prohibited animus. Even if Van Antwerp had shown that the
Department lied about the lack of an opening, he has pointed to no evidence
that would raise an inference that the Department failed to transfer him
because of his age, and we can find none. Without some minimal showing
that the “real reason” for cancelling his transfer was based on age, Van
Antwerp’s direct claim fails.
Id. at 298-99 (internal quotation marks and citations omitted). It follows that Plaintiffs’
circumstantial evidence does not permit them to forestall summary judgment under the direct
method. See Venturelli, 350 F.3d at 601.
Plaintiffs cite several cases in arguing that “once the employee has cast doubt upon the
employer’s proffered reasons for the termination, the issue of whether the employer
discriminated” is for the jury. Doc. 265 at 10-11 (quoting Rudin, 420 F.3d at 720); see also id. at
11, 13-14 (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000); Diaz, 653
F.3d at 588; Radentz v. Marion Cnty., 640 F.3d 754, 761 (7th Cir. 2011); Filar v. Bd. of Educ. of
City of Chi., 526 F.3d 1054, 1063 (7th Cir. 2008); Davis, 445 F.3d at 976-77; Gordon v. United
-17-

Airlines, Inc., 246 F.3d 878, 890-91 (7th Cir. 2001); Pryor v. Seyfarth, Shaw, Fairweather &
Geraldson, 212 F.3d 976, 980 (7th Cir. 2000)). That proposition, however, applies only under
the indirect method of proof. With one exception, the cases cited by Plaintiffs involved the use
of pretext evidence under the indirect method. This stands to reason, as a plaintiff can survive
summary judgment under the indirect method without evidence of discriminatory intent. See
Rudin, 420 F.3d at 725-26 (“at summary judgment,” a plaintiff proceeding under the indirect
method “is not required to establish pretext and provide evidence of a discriminatory motive by
the defendant”) (internal quotation marks omitted). Under the direct method, by contrast, “the
focus … is whether the evidence points directly to a discriminatory reason for the employer’s
action.” Silverman, 637 F.3d at 734 n.3 (internal quotation marks omitted); see also Venturelli,
350 F.3d at 601.
In one case cited by Plaintiffs, Diaz v. Kraft Foods Global, Inc., supra, the plaintiffs
survived summary judgment under the direct method based, in part, on pretext evidence. The
plaintiffs in Diaz, whose positions at Kraft were being eliminated, were unable to apply for other
positions at the company because their supervisor refused to consider them. 653 F.3d at 585.
Relying on the direct method to show that they were shut out because they were Hispanic, the
plaintiffs adduced evidence showing that their supervisor: (1) exhibited bias towards Hispanics
by assigning them, but not non-Hispanic employees, disfavored tasks; (2) used an irregular
hiring process to fill the available positions; and (3) stated that a different employee was hired
because that employee was “white like [the supervisor].” Id. at 589. The Seventh Circuit held
that this evidence—particularly the supervisor’s comment about the race of the hired employee,
which went far beyond the pretext evidence involving the use of an irregular hiring
process—was sufficient to allow a reasonable jury to conclude that bias against Hispanics
-18-

motivated the supervisor’s hiring decision. See ibid. (noting “the force of the … evidence,
especially [the supervisor’s] statement”).
Here, by contrast to Diaz, the only circumstantial evidence Plaintiffs have pretext
evidence. As the Seventh Circuit held in Venturelli and Van Antwerp, such evidence is
insufficient under the direct method. See Anderson v. Jewel Food Stores, Inc., 837 F. Supp. 2d
826, 831-32 (N.D. Ill. 2011).
B.

Indirect Method

“Under the indirect method, the plaintiff carries ‘the initial burden under the statute of
establishing a prima facie case of … discrimination.’” Coleman, 667 F.3d at 845 (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)) (omission in original). “If she
establishes a prima facie case, then the burden shifts to [Defendants] to articulate a legitimate,
nondiscriminatory reason for her termination which if believed by the trier of fact, would support
a finding that unlawful discrimination was not the cause of the employment action.” Petts v.
Rockledge Furniture LLC, 534 F.3d 715, 725 (7th Cir. 2008) (internal quotation marks omitted).
“If the employer meets this burden, the burden shifts back to the plaintiff to demonstrate that the
employer’s proffered reason is pretextual.” Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 751
(7th Cir. 2006).
To establish a prima facie case under the indirect method, a plaintiff must present
evidence that: “(1) she is a member of a protected class, (2) her job performance met [the
employer’s] legitimate expectations, (3) she suffered an adverse employment action, and (4)
another similarly situated individual who was not in the protected class was treated more
favorably than the plaintiff.” Coleman, 667 F.3d at 845 (internal quotation marks omitted)
(alteration in original). This rule is modified in certain categories of cases. See Michas v.
-19-

Health Cost Controls of Ill., 209 F.3d 687, 693 (7th Cir. 2000) (“recognizing the variety of
adverse employment actions covered within the broad reach of the discrimination statutes, [the
Seventh Circuit] ha[s] adapted the requirements for making a prima facie case in special cases to
reflect the reality of the workplace”). One category consists of mini-reduction-in-force (“miniRIF”) cases, “where the dismissed employee’s duties are absorbed by another employee or
employees rather than eliminated.” Petts, 534 F.3d at 725; see also Paluck v. Gooding Rubber
Co., 221 F.3d 1003, 1011 n.5 (7th Cir. 2000) (“When a terminated employee’s duties were
absorbed by other employees rather than eliminated from the company altogether, we do not
require the employee plaintiff to make out the prima facie case normally required for reduction
in force cases.”). The parties agree that this is a mini-RIF case. In such a case, “the court
applies a modified version of the fourth prong of the prima facie case,” requiring “proof that the
plaintiff’s duties were absorbed by employees not in the protected class.” Petts, 534 F.3d at 725;
see also Michas, 209 F.3d at 693 (“because the fired employee’s duties are absorbed by other
workers and the employee was ‘replaced,’ not eliminated, we only require that a plaintiff
demonstrate that his duties were absorbed by employees who were not members of the protected
class”); Bellaver v. Quanex Corp., 200 F.3d 485, 493-94 (7th Cir. 2000) (same).
Plaintiffs argue that they have satisfied the fourth prong because their duties were
absorbed by non-African-American, male surgeons. Doc. 265 at 20. To support this assertion,
Plaintiffs cite their Local Rule 56.1(b)(3)(B) response to Paragraph 40 of Defendants’ Local
Rule 56.1(a)(3) statement. Paragraph 40 of Defendants’ statement says: “On cutting oral and
maxillofacial surgical services from Provident, Dr. Simon hoped that Stroger could
accommodate those patients.” Doc. 206 at ¶ 40. Plaintiffs’ response says: “Not disputed. All of
the oral maxillofacial surgeons at Stroger were male, and none were African-American. All of
-20-

the orthopedic surgeons at Stroger were male, and none were African-American.” Doc. 265-1 at
¶ 40 (citations omitted). The second and third sentences of the response are extraneous to the
substance of Paragraph 40 of Defendants’ statement. Paragraph 40 merely states that Dr. Simon
hoped that Stroger could accommodate the patients who otherwise would have received oral and
maxillofacial surgical services at Provident. Plaintiffs did not dispute that statement. But rather
than stopping there, they proceeded to recite facts regarding the sex and race of Stroger’s oral
and maxillofacial surgeons and orthopedic surgeons. Those facts are not even arguably
responsive to Defendants’ statement.
Defendants cry foul in their reply brief, arguing that the additional facts, smuggled as
they were into Plaintiffs’ Local Rule 56.1(b)(3)(B) response, violate Local Rule 56.1(b)(3) and
should be disregarded. Doc. 270 at 4. Defendants are correct. Local Rule 56.1(b)(3)(B)
requires the non-movant to “respon[d] to each numbered paragraph in the moving party’s
statement, including, in the case of any disagreement, specific references to the affidavits, parts
of the record, and other supporting materials relied upon.” It is inappropriate for a non-movant
to include additional facts, meaning facts extraneous to the substance of the paragraph to which
the non-movant is responding, in a Local Rule 56.1(b)(3)(B) response. See Ciomber v.
Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008) (affirming the district court’s
refusal to consider additional facts set forth in the non-movant’s Local Rule 56.1(b)(3)(B)
response); Eason v. Nolan, 416 F. App’x 569 (7th Cir. 2011) (same). Rather, “Local Rule 56.1
requires specifically that a litigant seeking to oppose a motion for summary judgment file a
response that contains a separate statement” under Local Rule 56.1(b)(3)(C) “of any additional
facts that require the denial of summary judgment.” Cichon v. Exelon Generation Co., 401 F.3d
803, 809 (7th Cir. 2005) (omission in original) (quoting N.D. Ill. L.R. 56.1(b)(3)(C)) (internal
-21-

quotation marks omitted); Parvati Corp. v. City of Oak Forest, 2012 WL 957479, at *1 (N.D. Ill.
Mar. 20, 2012) (“Also, Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a
separate statement of additional facts that requires the denial of summary judgment.”) (emphasis
added). The second and third sentences of Paragraph 40 of Plaintiffs’ Local Rule 56.1(b)(3)(B)
statement therefore will be disregarded. See Ciomber, 527 F.3d at 643; Wojtanek v.
Consolidated Container Co., 2011 WL 4036126, at *5 (N.D. Ill. Sept. 12, 2011) (“[A] court may
disregard any additional facts in a party’s response to the opposing party’s statement of facts”).
This result is not inconsistent with Sojka v. Bovis Lend Lease, Inc., __ F.3d __, 2012 WL
2765031 (7th Cir. July 10, 2012). In granting summary judgment, the district court in Sojka
declined to consider facts that the non-movant set forth in his Local Rule 56.1(b)(3)(C) statement
of additional facts but that were not separately discussed in the non-movant’s brief. Id. at *2, 4.
The Seventh Circuit held that this was improper, explaining that facts properly presented by the
non-movant in a Local Rule 56.1(b)(3) statement need not be repeated in the non-movant’s brief.
Id. at *4-5. By contrast to the non-movant in Sojka, Plaintiffs here did not properly present
additional facts regarding the race and sex of surgeons at Stroger under Local Rule 56.1(b)(3);
instead, as just explained, they presented those facts in their Local Rule 56.1(b)(3)(B) response
rather than in their Local Rule 56.1(b)(3)(C) statement. This unfairly deprived Defendants of a
vehicle under Local Rule 56.1 to dispute those facts, as the rule permits movants to reply only to
a Local Rule 56.1(b)(3)(C) statement, not to a Local Rule 56.1(b)(3)(B) response. See N.D. Ill.
L.R. 56.1(a)(3) (“If additional material facts are submitted by the opposing party pursuant to
section (b), the moving party may submit a concise reply in the form prescribed in that section
for a response. All material facts set forth in the statement filed pursuant to section (b)(3)(C)
will be deemed admitted unless controverted by the statement of the moving party.”). Sojka did
-22-

not mention Ciomber, let alone disapprove its holding that the non-movant may not set forth
additional facts in its Local Rule 56.1(b)(3)(B) response and that the district court may disregard
such facts. 527 F.3d at 643.
Plaintiffs filed a motion to strike Defendants’ request that the court disregard Paragraph
40 of Plaintiffs’ Local Rule 56.1(b)(3)(B) response. Doc. 273. Plaintiffs first argue that
Defendants’ request is a motion and therefore failed to comply with Local Rule 5.3(b)’s notice
requirement. That argument does Plaintiffs no good, for the court has broad discretion to strictly
enforce Local Rule 56.1 regardless of whether a party requests such enforcement. See Raymond
v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006) (“district courts are entitled to expect
strict compliance with Local Rule 56.1”); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924
(7th Cir. 1994) (“there is nothing improper in the court enforcing [a local summary judgment]
rule strictly, even if the parties themselves have not raised the matter”); Speed Boats of Tex., LP
v. Bank of Am., N.A., 2011 WL 759955, at *1 n.1 (N.D. Ill. Feb. 25, 2011) (“a party’s choice not
to raise [an opposing party’s Local Rule 56.1 violation] does not preclude a district court from
holding a party to account for such violations sua sponte”). Plaintiffs’ next argument, that their
response does comply with Local Rule 56.1, is wrong for the reasons set forth above. Finally,
Plaintiffs ask the court to consider a revised version of their Local Rule 56.1(b)(3)(B) response.
Doc. 273-2. The request is denied, as the proposed revisions are made to other paragraphs of
Plaintiffs’ Local Rule 56.1(b)(3)(B) response; no revisions are made to Plaintiffs’ response to
Paragraph 40 of Defendants’ Local Rule 56.1(a)(3) statement.
As previously noted, to satisfy the fourth prong of their prima facie case under the
indirect method, Plaintiffs must show that their job responsibilities were absorbed by individuals
outside their protected classes. See Petts, 534 F.3d at 725. Plaintiffs have not properly
-23-

presented to the court any such evidence. Plaintiffs therefore cannot defeat summary judgment
under the indirect method on their claims that their terminations were caused by race and sex
discrimination in violation of Title VII and the Equal Protection Clause.
IV.

Termination – Retaliation Claims
A.

Dr. Ivankovich – Title VII and Equal Protection

In his Title VII retaliation claim, Dr. Ivankovich alleges that Defendants terminated him
because he complained about their mistreatment of Dr. Johnson and because he refused to help
them further discriminate against her. Doc. 16 at ¶¶ 63-68. Defendants do not argue for
summary judgment on that claim in their motion or their initial brief. Docs. 205, 239. Their
belated inclusion of that argument in their reply brief, Doc. 270 at 9-11, in unavailing. It is
axiomatic that “a party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); see also Costello v. Grundon, 651 F.3d 614, 635 (7th Cir. 2011) (“As the moving
party, [the defendant] had the initial burden of identifying the basis for seeking summary
judgment.”). Defendants’ failure to address the Title VII retaliation claim until their reply brief
forfeits any argument they might have had for summary judgment on that claim. See Narducci,
572 F.3d at 324; AB Volvo, 349 F.3d at 389.
Defendants preserved their argument for summary judgment on Dr. Ivankovich’s claim
that the retaliation against him violated the Equal Protection Clause. Doc. 205 at 2; Doc. 239 at
23-24. That argument is correct. Dr. Ivankovich’s “right to be free from retaliation for
protesting … [race and] sex discrimination is a right created by Title VII, not the equal
protection clause.” Gray v. Lacke, 885 F.2d 399, 414 (7th Cir. 1989); see also Boyd v. Ill. State
Police, 384 F.3d 888, 898 (7th Cir. 2004) (“the right to be free from retaliation may be
-24-

vindicated under the First Amendment or Title VII, but not the equal protection clause”).
Summary judgment therefore is granted on Dr. Ivankovich’s equal protection claim.
B.

Drs. Johnson and Ivankovich – First Amendment

Drs. Ivankovich and Johnson allege that Defendants violated the First Amendment by
terminating them in retaliation for speaking out against the Bureau’s proposed budget cuts. To
succeed on a First Amendment retaliation claim brought, a plaintiff must show that: “(1) his
speech was constitutionally protected; (2) he has suffered a deprivation likely to deter free
speech; and (3) his speech was at least a motivating factor in the employer’s actions.” Kidwell v.
Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012). Defendants focus on the first requirement,
arguing that Plaintiffs’ speech is not constitutionally protected. “[T]he determination of whether
speech is constitutionally protected is a question of law for the court.” Houskins v. Sheahan, 549
F.3d 480, 489 (7th Cir. 2008).
“[P]ublic employees do not surrender all their First Amendment rights by reason of their
employment. Rather, the First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos,
547 US. 410, 417 (2006). However, “[w]hen public employees make statements pursuant to
their official duties, the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer discipline.”
Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 671 (7th Cir. 2009) (quoting Garcetti, 547
U.S. at 421) (internal quotation marks omitted). Accordingly, the speech of Drs. Johnson and
Ivankovich is constitutionally protected only if (1) they spoke in their capacities as private
citizens, as opposed to their capacities as Cook County physicians, and (2) they spoke on matters
of public concern. Ibid. On this record, Plaintiffs’ speech satisfies both requirements.
-25-

1.

Speech as Private Citizens

“Determining what falls within the scope of an employee’s duties is a practical exercise
that focuses on the duties an employee actually is expected to perform.” Renken v. Gregory, 541
F.3d 769, 773 (7th Cir. 2008) (internal quotation marks omitted); see also Morales v. Jones, 494
F.3d 590, 596 (7th Cir. 2007). The inquiry turns on a “commonsense, contextual analysis of the
role the public employee assumed in making the speech.” Ogden v. Atterholt, 606 F.3d 355, 360
n.2 (7th Cir. 2010). A public employee’s speech may be protected if it is “the kind of activity
engaged in by citizens who do not work for the government,” such as “writing a letter to a local
newspaper, or discussing politics with a co-worker.” Garcetti, 547 U.S. at 423-24. Speech
generally is unprotected if made pursuant to an individual’s employment responsibilities, where
“there is no relevant analogue to speech by citizens who are not government employees.” Id. at
424.
The Seventh Circuit applied these principles in Wackett v. City of Beaver Dam, 642 F.3d
578 (7th Cir. 2011), where a city employee alleged that the city retaliated against him for
attending a public hearing to criticize its decision to purchase a particular tractor. In holding that
the plaintiff was speaking in his official capacity, the court noted that he was responsible for
overseeing the bidding process for the new tractor and that he and his boss, the director of the
city agency in question, attended the hearing specifically to recommend that the Board vote to
purchase a different tractor. Id. at 581-82. Likewise, in Ogden v. Atterholt, supra, the Seventh
Circuit held that the plaintiff, a state agency’s division manager, was speaking in his official
capacity when he sent a memorandum to his supervisor requesting that his department be
reorganized. The court characterized the memorandum as “an official request by a division
manager, acting in that capacity, asking for a departmental reorganization—no more, no less.”
-26-

606 F.3d at 360. The court explained that the memorandum “reflect[ed] exactly the sort of
localized employment-related speech Garcetti held was not entitled to First Amendment
protection.” Id. at 359.
The Seventh Circuit reached a different result in Milwaukee Deputy Sheriff’s Ass’n v.
Clarke, 574 F.3d 370 (7th Cir. 2009). The Milwaukee County sheriff, who had been criticized
for using on-duty officers to escort him to the airport and to patrol his home, posted the
following quote on a bulletin board: “If you are afraid or have lost your courage, you may go
home, otherwise you will ruin the morale of others.” Id. at 373. In response, the plaintiff, a
deputy sheriff, published this statement in the police union’s newsletter:
If you are afraid or you have lost your courage and need two deputies and a
sergeant to escort you every time you fly in and out of the airport and patrol
deputies to drive by your house when you’re out of town you should resign
and go home! Then you would lift the morale of this whole department
(a.k.a. office).
Id. at 373-74. The newsletter was distributed to current and retired union members, as well as to
private businesses, sponsors, and the Milwaukee County Board of Supervisors. The Seventh
Circuit held that the deputy was speaking as a citizen because he “drafted his statement while
off-duty, he reported the conduct externally, and no evidence indicates that the speech was
‘pursuant to’ or ‘owe[d] its existence to’ his official duties.” Id. at 377 n.3 (quoting Garcetti,
547 U.S. at 421). Likewise, in Matrisciano v. Randle, 569 F.3d 723 (7th Cir. 2009), the Seventh
Circuit held that the plaintiff, an Assistant Deputy Director of the Illinois Department of
Corrections, was not speaking pursuant to his official duties when he testified at a prison review
board hearing in support of an inmate’s release. The court explained that the plaintiff
“voluntarily testified before the Board on a day that he took off from work,” and that his “job
description does not hint at voluntary testimony before the Board.” Id. at 731.
-27-

Using these precedents as guideposts, it is clear that Drs. Johnson and Ivankovich were
speaking in their capacities as private citizens and not pursuant to their official responsibilities.
They were not employed in policymaking positions when they spoke. Doc. 269 at ¶ 38. Rather,
their job responsibilities were limited to the operations of the Division of Orthopedic and
Podiatric Surgery at Provident. Ibid.; Doc. 265-7 at 12; Doc. 265-4 at 82. There is no evidence
that Dr. Johnson was on duty when she attended the two rallies, spoke to Operation PUSH
representatives, or spoke at a community meeting. Likewise, there is no evidence that Dr.
Ivankovich was working when he was interviewed by the Tribune. Contrary to Defendants’
contention, the evidence does not establish that “Plaintiffs’ responsibilities included advocating
for funding to their division.” Doc. 239 at 18. Their job descriptions make no mention of
budgeting matters, Doc. 265-7 at 12; Doc. 265-4 at 82, leaving no reason to believe they were
responsible for publicly (or privately) advocating about the Bureau’s budget.
Dr. Ivankovich’s testimony that “[w]hen we go to the media, we’re physicians,” Doc.
222 at 91, does not warrant a different result. Just because Drs. Ivankovich and Johnson were
speaking as physicians does not mean they were speaking in their capacities as Cook County
physicians. The Supreme Court “has acknowledged the importance of promoting the public’s
interest in receiving the well-informed views of government employees engaging in civic
discussion.” Garcetti, 547 U.S. at 419. In Pickering v. Board of Education of Township High
School District 205, 391 U.S. 563 (1968), the Court addressed whether a public school teacher’s
letter to a local newspaper discussing his school board’s funding policies was constitutionally
protected. In holding that it was, the Court explained: “Teachers are, as a class, the members of
a community most likely to have informed and definite opinions as to how funds allotted to the
operations of the schools should be spent. Accordingly, it is essential that they be able to speak
-28-

out freely on such questions without fear of retaliatory dismissal.” Id. at 572. The Court has
since observed that “[t]he same is true of many other categories of public employees.” Garcetti,
547 U.S. at 421. As physicians, Drs. Johnson and Ivankovich had “informed and definite
opinions as to how funds allotted to the operations of [Cook County hospitals] should be spent.”
And as in Clarke, the only connection between Plaintiffs’ speech and their employment was that
they knew of the potential effects of the budget cuts through their positions at Cook County. See
Clarke, 574 F.3d at 377 n.3 (“The only connections between Schuh’s speech and his
employment were that Sheriff Clarke was his superior and that he learned of Clarke’s conduct
through his position as a deputy.”). These connections are not enough to render their speech
non-private. See ibid.; Matrisciano, 569 F.3d at 731; Chaklos v. Stevens, 560 F.3d 705, 711-12
(7th Cir. 2009).
Nor does Davis v. Cook County, 534 F.3d 650 (7th Cir. 2008), warrant a different result.
In Davis, a Cook County emergency room nurse sent a memorandum to the hospital’s Employee
Assistance Counselor and hospital officials expressing concern that “the ER was operating
without any team-work and professionalism.” Id. at 653. The Seventh Circuit concluded that
the nurse wrote the memo in her capacity as a public employee because “[t]he issue she
discusses in the memo concern particular job responsibilities of a registered nurse.” Ibid.
Unlike the nurse in Davis, Drs. Johnson and Ivankovich were addressing issues that extended
beyond their particular job responsibilities. Dr. Johnson’s speech addressed how the potential
budget cuts would impact a variety of hospital departments, Doc. 269 at ¶ 3, and the community
as a whole, Doc. 265-1 at ¶¶ 87-88, 90, 93. Dr. Ivankovich’s interview with the Tribune focused
on Provident’s Medicaid and Medicare billing practices. In Davis, there was evidence that one
of the nurse’s responsibilities was to “act as an advocate,” 534 F.3d at 653, and the Seventh
-29-

Circuit concluded that she was doing just that in her memorandum. By contrast, there is no
evidence here that Dr. Johnson was responsible for Provident’s or the Bureau’s budgets or that
Dr. Ivankovich was responsible for Provident’s billing practices.
For these reasons, Drs. Johnson and Ivankovich were speaking in their capacities as
private citizens, not pursuant to their official responsibilities. Perhaps reasonable people in the
individual defendants’ shoes could have come to a different conclusion. But because Defendants
do not argue for qualified immunity, either in their initial brief or their reply brief, there is no
need to run that question to ground. See Narducci, 572 F.3d at 324 (“the district court was
entitled to find that [the defendants] waived the qualified immunity defense in the summary
judgment proceedings because they failed to raise the issue before their reply brief”); Bakalis v.
Golembeski, 125 F.3d 576, 579 (7th Cir. 1997) (same).
2.

Matter of Public Concern

“Whether an employee’s speech addresses a matter of public concern must be determined
by the content, form, and context of a given statement, as revealed by the whole record.”
Connick v. Myers, 461 U.S. 138, 147-48 (1983). “In analyzing the ‘content, form, and context of
a given statement’ to determine if the statements are constitutionally protected,” the Seventh
Circuit “ha[s] stressed that content is the most important.” Nagle v. Vill. of Calumet Park, 554
F.3d 1106, 1123 (7th Cir. 2009) (internal quotation marks omitted).
Defendants do not dispute that the Bureau’s budget cuts were a matter of public concern.
Instead, Defendants maintain that Plaintiffs’ speech is not protected because their motive for
opposing the budget cuts was to save their jobs. Doc. 239 at 20. Governing precedent holds that
“[a]lthough [courts should] consider the motive of the speaker as part of the ‘context’ in which
the speech was made, … speech of public importance is only transformed into a matter of private
-30-

concern when it is motivated solely by the speaker’s personal interests.” Chaklos, 560 F.3d at
714; see also Bivens v. Trent, 591 F.3d 555, 561 (7th Cir. 2010) (“the motive of the speaker is a
relevant, though not dispositive, factor because the speech will not be protected if the only point
of the speech was to further some purely private interest”) (emphasis added) (internal quotation
marks omitted). “[T]he fact that the speaker was partly motivated by personal concerns does not
necessarily mean the speech cannot also be a matter of public concern.” Ibid. (emphasis added).
Dr. Johnson expressed herself about the proposed budget cuts several times. The record
shows that she was not motivated solely (or even largely) by her personal interests. When
speaking at the 2006 community meeting, Dr. Johnson addressed the impact of budget cuts on
patient care, specifically addressing the importance of pediatrics and of obstetrics and
gynecology, as those departments were being considered for elimination at Provident. Doc. 269
at ¶ 3; Doc. 265-5 at 18-19. When appearing as a guest on a local radio show, Dr. Johnson
expressed her concern about the community impact of the budget cuts and, in particular, about
the loss of the obstetrics department. Doc. 269 at ¶ 3; Doc. 265-5 at 29. During meetings with
Operation PUSH, Dr. Johnson again addressed the impending budget cuts as well as the
differences between Stroger and Provident hospitals, noting that 90% of the Bureau’s AfricanAmerican physicians worked at Provident or in the ambulatory care system. Doc. 265-1 at ¶ 88;
Doc. 209 at 147. And when interviewed on television during one of the two rallies she attended,
Johnson said that a 50% cut at Provident “would be a cut to the bone.” Doc. 265-1 at ¶ 93; Doc.
209 at 171. Given this evidence, Dr. Johnson’s speech was motivated, at least in part, by the
impact the budget cuts would have on the community. It follows that her speech was not
entirely motivated by her personal interests, and therefore that it is protected by the First
Amendment. See Clarke, 574 F.3d at 380 (explaining that in Chaklos, although “[t]he
-31-

employees’ purpose in speaking was mixed, the [speech’s] content contained matters of public
interest, and the speech deserved protection under the First Amendment”); Houskins, 549 F.3d at
490 (“[t]he fact that an employee has a personal stake in the subject matter of the speech does
not necessarily remove the speech from the scope of public concern”).
The same holds for Dr. Ivankovich’s speech. Dr. Ivankovich’s interview with the
Tribune focused exclusively on the Bureau’s billing practices. The Tribune reported that 39% of
the bills the Bureau submitted to Medicaid for reimbursement were rejected due to errors made
by poorly trained staff. The article went on to quote Dr. Ivankovich as saying that the addition
of a social worker and someone to process paperwork would lead to “millions of dollars from
Medicaid and Medicare a year.” Doc. 265-4 at 201.
“It is … well established that speech protesting government waste addresses a matter of
public concern and is therefore entitled to constitutional protection.” Chaklos, 560 F.3d at 713;
see also Valentino, 575 F.3d at 671-72. Whether the Bureau was being “run in an efficient and
effective manner is clearly an important matter of public concern.” Wainscott v. Henry, 315
F.3d 844, 849 (7th Cir. 2003). Dr. Ivankovich’s statements to the Tribune addressed the
Bureau’s inefficient billing practices, and “[a]n employee’s ability to highlight the misuse of
public funds or breaches of public trust is a critical weapon in the fight against government …
inefficiency.” Ibid. Given this, Dr. Ivankovich’s speech was not motivated solely by his own
personal interest in saving his job.
3.

Monell Liability

Drs. Johnson and Ivankovich bring their First Amendment retaliation claims not only
against the individual defendants, but also against Cook County. “Municipal agencies can be
found liable under § 1983 for violating a plaintiff’s civil rights through (1) an express municipal
-32-

policy; (2) a widespread practice constituting custom or usage; or (3) a constitutional injury
caused or ratified by a person with final policymaking authority.” Darchak v. City of Chi. Bd. of
Educ., 580 F.3d 622, 630 (7th Cir. 2009) (internal quotation marks omitted). Plaintiffs contend
that Cook County is liable because Dr. Simon had final policymaking authority.
“State law determines who legally constitutes a final policymaker.” Id. at 629. “In order
to have final policymaking authority, an official must possess [r]esponsibiltiy for making law or
setting policy, that is, authority to adopt rules for the conduct of government.” Rasche v. Vill. of
Beecher, 336 F.3d 588, 600 (7th Cir. 2003) (internal quotation marks omitted). “Helpful in
determining whether an official is a final decisionmaker is an inquiry into: (1) whether the
official is constrained by policies of other officials or legislative bodies; (2) whether the
official’s decision on the issue in question is subject to meaningful review; and (3) whether the
policy decision purportedly made by the official is within the realm of the official’s grant of
authority.” Valentino, 575 F.3d at 676 (internal quotation marks omitted). Pertinent to those
inquiries are a municipality’s “relevant customs and practices having the force of law” and its
“positive law, including ordinances, rules and regulations.” Ibid. (internal quotation marks
omitted). The question whether Dr. Simon had final policymaking authority presents an issue of
law for the court. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (“As with other
questions of state law relevant to the application of federal law, the identification of those
officials whose decisions represent the official policy of the local governmental unit is itself a
legal question to be resolved by the trial judge before the case is submitted to the jury.”);
McNabola v. Chi. Trans. Auth., 10 F.3d 501, 510 (7th Cir. 1993) (“the Supreme Court explained
that prior to submitting a case to the jury, the court must determine the identity of the official
policymakers and that once the policymakers have been identified, ‘it is for the jury to determine
-33-

whether their decisions have caused the deprivation of rights at issue by policies which
affirmatively command that it occur …’”) (quoting Jett, 491 U.S. at 737).
Defendants argue that Dr. Simon did not have final policymaking authority because he
needed approval from the Cook County Board to eliminate a department or division within the
Bureau. Doc. 216 at 23. Defendants’ conclusion does not follow from their premise. The
question under Monell is not whether Dr. Simon had final authority over the elimination of
departments or divisions in the Bureau, but whether he was the final policymaker on personnel
decisions, including whom to terminate when implementing the budget cuts. See Valentino, 575
F.3d at 676 (“Our inquiry is not whether an official is a policymaker on all matters for the
municipality, but whether he is a policymaker in a particular area, or on a particular issue; here,
the relevant question is whether Mayor Owen is a policy-maker on personnel decisions.”)
(internal quotation marks omitted).
On that question, the record shows that Dr. Simon was the final policymaker on
personnel decisions. “Defendants do not point to any laws, statutes, or ordinances which place
[personnel] policy setting authority in the hands of the [Board].” Valentino, 575 F.3d at 677.
Moreover, the Board’s decision to eliminate Provident’s orthopedic surgery and oral and
maxillofacial surgery departments did not automatically result in the terminations of
Drs. Johnson and Ivankovich. To the contrary, Dr. Simon testified that he was responsible for
implementing the Board-approved budget cuts, a responsibility that included deciding how
termination decisions would be made and which physicians would be terminated. Doc. 269 at
¶ 1; Doc. 265-5 at 140.
The Bureau’s bylaws, which the Board approved in 2000, Doc. 265-6 at 81, further
support the conclusion that Dr. Simon had final policymaking authority on the personnel
-34-

decisions at issue in this case. The bylaws state that “[e]ach Affiliate Hospital … shall have a
Chief Operating Officer” and that “[s]ubject to the authority of the Chief of the Bureau, the
authority and duties of the Chief Operating Officer shall include … [t]he selection, supervision,
and discharge of employees and the development and maintenance of personnel policies and
practices.” Id. at 82-84 (emphasis added). Provident is one of the Bureau’s affiliate hospitals.
Doc. 265-1 at ¶ 10. A person has final policymaking authority if he has authority to set policy
for hiring and firing. See Kujawski v. Bd. of Comm’rs of Bartholomew Cnty., Ind., 183 F.3d 734,
739 (7th Cir. 1999) (“There must be a delegation of authority to set policy for hiring and firing,
not a delegation of only the final authority to hire and fire.”). By approving the bylaws, the
Board delegated to Dr. Simon the authority over hiring and firing. And because Dr. Simon had
final policymaking authority with regard to personnel decisions, Cook County may be held liable
if the jury finds that Dr. Simon terminated Drs. Johnson and Ivankovich in violation of the First
Amendment. See Valentino, 575 F.3d at 678.
Conclusion
For the foregoing reasons, Defendants’ summary judgment motion (Doc. 205) is granted
in part and denied in part. Summary judgment is granted as to Dr. Nash’s and Dr. Johnson’s
termination claims under Title VII and the Equal Protection Clause, Dr. Ivankovich’s retaliation
claim under the Equal Protection Clause, and Dr. Nash’s and Dr. Johnson’s Title VII hostile
work environment claims. The summary judgment motion otherwise is denied. Plaintiffs’
motion to strike Defendants’ motion to strike (Doc. 273) is denied. This case will proceed to
trial on Dr. Johnson’s and Dr. Ivankovich’s First Amendment retaliation claims, Dr.

-35-

Ivankovich’s Title VII retaliation claim, and Dr. Johnson’s and Dr. Nash’s Title VII and Equal
Pay Act wage discrimination claims.

July 16, 2012
United States District Judge

-36-