Brown v. Wynscape Nursing & Rehabilitation Center et al

Filing 60

Opinion and Order entered. Defendant's motion for summary judgment 28 is granted. It is hereby ordered that summary judgment is entered in favor of Defendants and against Plaintiff. Status hearing set for 3/13/2014 is stricken. Mail AO 450. Civil case terminated. Signed by the Honorable Sara L. Ellis on 3/12/2014: Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THELMA BROWN,

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Plaintiff,
v.
WYNSCAPE NURSING &
REHABILITATION CENTER and
WYNDEMERE,
Defendants.

No. 12 C 5179
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Thelma Brown, who is African-American, filed a pro se complaint against
Wyndemere LLC (“Wyndemere”), 1 alleging race discrimination and retaliation in violation of 42
U.S.C. § 1981 and the Illinois Human Rights Act (“IHRA”), 775 Ill. Comp. Stat. 5/1-101 et seq.,
after she was terminated from her position at a nursing home operated by Wyndemere.
Wyndemere filed a motion for summary judgment on all of Brown’s claims. Because Brown did
not establish a prima facie case of discrimination, demonstrate that Wyndemere’s termination of
her was pretextual, or engage in any statutorily protected activity, Wyndemere’s motion [28] is
granted.
BACKGROUND
I.

Compliance with Local Rule 56.1
As an initial matter, the Court must address Brown’s compliance, or lack thereof, with

Northern District of Illinois Local Rule 56.1, which provides detailed instructions as to how
litigants should prepare their summary judgment motions and responses. Pursuant to Local Rule
1

Wyndemere asserts that it was improperly sued as “Wynscape Nursing & Rehabilitation Center and
Wyndemere.”

56.1, a party seeking summary judgment must submit a statement of undisputed material facts
that support judgment in its favor as a matter of law. N.D. Ill. L.R. 56.1(a). The party opposing
the motion must then submit a concise response to the movant’s statement of material facts.
N.D. Ill. L.R. 56.1(b)(3). That statement is to include a response 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[.]” N.D. Ill. L.R.
56.1(b)(3)(B). In other words, the opposing party may not simply deny the facts presented by
the moving party; it must instead cite “specific evidentiary materials justifying the denial.”
Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). Although “it is appropriate to apply
[Local Rule 56.1] less strictly to pro se pleadings . . . . a pro se litigant is not completely excused
from the requirements of Local Rule 56.1.” Lumpkins-Benford v. Allstate Ins. Co., --- F. Supp.
2d ----, 2013 WL 5952168, at *1 (N.D. Ill. Nov. 5, 2013).
Brown’s response to Wyndemere’s Local Rule 56.1 statement fails to comply with these
requirements. She purports to deny or qualify Wyndemere’s statements but does not provide any
citations to the record to support these denials or qualifications. All material facts set forth in
those paragraphs are thus deemed admitted to the extent supported by the record. N.D. Ill. L.R.
56.1(b)(3)(C); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[A] mere disagreement with
the movant’s asserted facts is inadequate if made without reference to specific supporting
material.”). Brown has also admitted that numerous paragraphs of Wyndemere’s statement are
true while improperly incorporating additional facts or asserting that these statements are taken
out of context. The additional statements are stricken. See Ammons v. Aramark Unif. Servs.,
Inc., 368 F.3d 809, 818 (7th Cir. 2004); Buttron v. Sheehan, No. 00 C 4451, 2003 WL 21801222,
at *5 (N.D. Ill. Aug. 4, 2003). Brown’s statement of additional facts is also stricken. The

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majority of the additional statements of fact are not properly supported by citations, as required
by Local Rule 56.1(b)(3)(C). Where provided, the citations do not support the propositions for
which they purportedly stand. In summary, in accordance with Local Rule 56.1, the Court
deems Wyndemere’s statement of material facts admitted and does not consider Brown’s
unsupported factual assertions in response or in her statement of additional facts. See Wilson v.
Kautex, Inc., 371 F. App’x 663, 664 (7th Cir. 2010) (strictly enforcing Local Rule 56.1 was
“well within the district court’s discretion” even though the plaintiff in the Title VII case was a
pro se litigant); Smith, 321 F.3d at 682–83 (same).
II.

Factual Background
Wyndemere operates several facilities that provide various living options for senior

citizens. One of these facilities, Wynscape Nursing & Rehabilitation Center (“Wynscape”),
offers skilled nursing care and specialized short-term rehabilitation for senior citizens and is
regulated by the Illinois Department of Public Health (“IDPH”). IDPH conducts annual audits to
ensure that Wyndemere is in compliance with its regulations.
Wyndemere is an equal opportunity employer and maintains anti-harassment and antiretaliation policies. It also employs a progressive disciplinary process, which is set forth in an
employee handbook. That process consists of the following steps: (1) a verbal warning, (2) a
first written warning, (3) a second written warning with or without a suspension, and (4)
termination. Rule violations that result in progressive disciplinary action include “[a]cting in a
disrespectful or rude manner,” “[f]ailure to properly record time worked,” and “[v]iolation of
Wyndemere personnel policies.” Def.’s Ex. 17 at Def 384. “Refusing, neglecting, or avoiding
duties” may result in immediate termination or suspension while the violation is investigated. Id.
at Def 384–85.

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A.

Brown’s Employment with Wyndemere

Brown was employed by Wyndemere as a Life Activity/Programming Partner (“Life
Activity Partner”) at Wynscape from approximately June 1, 2010 until February 16, 2011.
Brown was supervised by Jennifer Franck, Wyndemere’s Life Enrichment Program Manager,
who hired Brown and subsequently, terminated her. As a Life Activity Partner, Brown
“offer[ed] support to patients/residents with their ongoing mental, social, physical, emotional,
behavioral, and/or spiritual wellbeing,” was “[r]esponsible for accurately assessing, identifying
and executing life enrichment activities,” and “[p]rovide[d] aid to the Resident Services Manager
with event planning, orchestration of activities, meaningful encounters and overall support of the
department.” Def.’s Ex. 7 at Def 083. Life Activity Partners were expected to perform different
activities with residents each day. They also were expected to gather residents for activities,
which included transporting them to and from the activities as necessary. Additionally, Brown’s
job duties included submitting assessments of residents’ behavior and their participation in
activities and programs at Wynscape, in accordance with IDPH guidelines. These assessments
were to be completed within 72 hours of a resident’s admission to Wynscape so as to comply
with an IDPH deadline.
In mid-September 2010, Franck gave Brown multiple oral warnings regarding several
performance issues. Brown was warned not to leave residents alone on Wynscape’s patio and to
ensure that the assessments she was submitting were fully completed. Franck also made Brown
aware in several emails that she was violating Wyndemere’s timekeeping policies by, for
example, punching in or out early or not taking a lunch break, although these do not appear to
have been considered formal warnings under Wyndemere’s progressive discipline policy. On
September 28, 2010, Brown received her first written warning for being aggressive and rude to a

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co-worker, which according to Wyndemere’s investigation, frightened one of the residents. The
written warning stated that “[a]ny further incidents of aggressive or inappropriate behavior
towards another will result in further disciplinary action up to and including termination.” Def.’s
Ex. 9 at Def 147. Brown admitted that the incident occurred but maintained that it was taken out
of context and blown out of proportion.
On October 1, 2010, Franck sent Brown and several other Life Activity Partners an email
emphasizing the importance of completing assessments within 72 hours of a resident’s
admission. Franck offered her assistance if the Life Activity Partners had problems completing
the assessments in a timely manner. On October 18, 2010, after Brown had not completed two
assessments within 72 hours as required by Wyndemere and IDPH regulations, Franck sent
Brown an email reminding her of her obligation to timely complete the assessments.
On January 10, 2011, Brown received a final written warning detailing a variety of
performance and behavioral issues. The issues were summarized as:
•

Being non-responsive to questions or comments from staff
and/or residents.

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Being rigid or non-cooperative when it means activities you
conduct need to be altered or items you have need to be
shared with other persons.

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The perception that you show favoritism toward some
residents and do not pay as much attention to the needs of
others.

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The tone/manner in which you speak and the words you
choose to use with residents and staff is perceived as harsh
or inappropriate[.]

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Questioning the care provided to residents with other staff
in front of residents and/or their family members. This
questioning comes across as non-supportive of the care
provided and undermines our ability to properly conduct
business.
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•

Despite having been trained and coached, you continue to
submit documentation that is incomplete and/or inaccurate.

Def.’s Ex. 14 at Def 184. The warning listed specific actions Brown was expected to take to
address the outlined concerns. It concluded by stating that “[f]urther instances of performance or
behavior issues may result in additional disciplinary action up to, and including, termination.”
Id. at Def 185.
Despite this admonition that failure to correct her behavior could result in additional
disciplinary action including termination, Brown failed to timely complete five assessments
assigned to her. Franck provided her with additional time to complete these assessments, but
Brown failed to meet these deadlines as well. Thus, on February 16, 2011, Wyndemere
terminated Brown’s employment for failure to complete her assigned tasks despite having been
trained and counseled. At the time she was terminated, Brown admitted that she had not
completed her assessments in a timely manner.
B.

Comparators

Brown claims that three other Life Activity Partners—Patricia Stuart (Caucasian), Diane
Lombardi (Caucasian), and Catherine Charan (Indian)—were treated more favorably than she.
Patricia Stuart, who is Caucasian, received a verbal warning about attendance, discussing gossip
at work, using her cellular phone at work, and the need to complete all paperwork. On February
9, 2011, Franck issued Stuart her first written warning for missing paperwork and sleeping while
in charge of residents. At some point, Wyndemere learned that Stuart appeared to have a
disability within the meaning of the American Disabilities Act and thus Wyndemere provided
Stuart with the reasonable accommodation of taking short off-the-clock breaks during which she
could sleep. Even with this accommodation, however, Stuart was unable to complete her

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essential job functions. Ultimately unable to determine any other reasonable accommodations
that would allow Stuart to perform her job, Wyndemere terminated Stuart in June 2012.
Diane Lombardi, who is Caucasian, received a verbal warning for rude behavior after
complaining that she was required to help out at the front desk, as well as a verbal warning to
improve attendance taking, to improve patient involvement in activities, to introduce herself to
new residents and discuss activities with them, and to socialize with residents during meals.
Brown could offer no examples of Charan receiving more favorable treatment.
LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee’s notes. The party
seeking summary judgment bears the initial burden of proving that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the
evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue
for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a
bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light
most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

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ANALYSIS
I.

Race Discrimination Claims
A plaintiff claiming race discrimination under both § 1981 and the IHRA can prove her

case under the direct or indirect method of proof. Antonetti v. Abbott Labs., 563 F.3d 587, 591 &
n.4 (7th Cir. 2009); Freeman United Coal Mining Co. v. Human Rights Comm’n, 527 N.E.2d
1289, 1294, 173 Ill. App. 3d 965, 123 Ill. Dec. 514 (1988). 2 Brown has not set forth any
admissible direct evidence of discrimination, and thus the Court will proceed to analyze her
claim under the familiar indirect method of proof set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under this approach, to
demonstrate a prima facie case of discrimination, Brown must show that (1) she is a member of a
protected class, (2) she was meeting Wyndemere’s legitimate expectations, (3) she suffered an
adverse employment action, and (4) similarly situated employees outside of her protected class
were treated more favorably. Naficy v. Ill. Dep’t. of Human Servs., 697 F.3d 504, 511 (7th Cir.
2012). If Brown establishes a prima facie case, Wyndemere must present evidence showing a
legitimate, nondiscriminatory reason for the employment action. Id. Brown must then present
evidence showing that Wyndemere’s stated reason is pretextual. Id. at 511–12.
Wyndemere argues that Brown was not meeting its legitimate expectations, that her
complaints about being required to perform certain job duties do not amount to adverse
employment actions, and that she has failed to demonstrate that similarly situated employees
outside of her protected class were treated more favorably. Additionally, Wyndemere argues
that it has articulated a legitimate, nondiscriminatory reason for Brown’s termination—her

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Because Illinois law uses the same standards as the Seventh Circuit in analyzing IHRA discrimination
claims, the Court will cite to pertinent federal cases in its analysis. See Brandenburg v. Henderson, No.
09-0558-DRH, 2011 WL 2941307, at *2 n.3 (S.D. Ill. July 20, 2011).

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failure to timely complete the assessments despite numerous warnings—and that Brown cannot
establish that that reason was pretextual.
A.

Legitimate Expectations

Wyndemere first argues that Brown was not meeting its legitimate expectations at the
time of her termination as evidenced by the repeated application of its progressive discipline
policy to Brown. Although the Seventh Circuit has cautioned that district courts need not reach
the pretext analysis without first determining whether the plaintiff’s prima facie case is met,
where “an employer has cited performance issues as the justification for its adverse action, the
performance element of the prima facie case cannot be separated from the question whether the
employer proffered a nonpretextual explanation for its challenged conduct.” Duncan v.
Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486, 491 (7th Cir. 2008); see also Keeton v.
Morningstar, Inc., 667 F.3d 877, 885 (7th Cir. 2012). Accordingly, whether Brown was meeting
Wyndemere’s legitimate expectations will be discussed in connection with the pretext analysis
below.
B.

Adverse Employment Action

“An adverse employment action is one that significantly alters the terms and conditions
of the employee’s job.” Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004). An adverse
employment action must be materially adverse, such as a termination or demotion, and not just a
“mere inconvenience or an alteration of job responsibilities.” Hilt-Dyson v. City of Chicago, 282
F.3d 456, 465–66 (7th Cir. 2002) (quoting Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 612 (7th Cir.
2001)). There is no dispute that Brown suffered an adverse employment action when she was
terminated. But she also complains that she was given additional jobs, such as transporting
residents to and from activities, performing different activities for her group each day, and

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starting her group earlier than the scheduled time. None of these alleged extra jobs, however,
rises to the level of an adverse employment action. Rather, Wyndemere has submitted evidence
that they were part of her regular job duties and thus are not actionable as adverse employment
actions.
C.

Similarly Situated Employees

To make out her prima facie case, Brown must also identify similarly situated employees
outside her protected class who were treated more favorably. To show that an employee is
similarly situated, Brown must demonstrate that the employee “(1) dealt with the same
supervisor, (2) [was] subject to the same standards, and (3) engaged in similar conduct without
such differentiating or mitigating circumstances as would distinguish their conduct or the
employer’s treatment of them.” Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012)
(internal quotations omitted) (citation omitted). Brown identifies three Life Activity Partners,
Stuart, Lombardi, and Charan, all of whom are non-African-American, as similarly situated. She
has failed, however, to submit any admissible evidence to establish that they engaged in similar
conduct without differentiating or mitigating circumstances but were not terminated. The only
evidence of record is that submitted by Wyndemere, none of which supports a finding that any of
these employees were similarly situated. The evidence before the Court indicates that Stuart was
counseled for similar behavior and ultimately terminated, although after Wyndemere determined
that it could not reasonably accommodate Stuart’s disability. Although Lombardi received a
verbal warning, there is no indication that further issues arose with her work performance
warranting additional disciplinary steps. No evidence is before the Court regarding Charan’s
behavior and whether it warranted discipline under Wyndemere’s progressive discipline policy.
Thus, because Brown has failed to meet her burden of showing that similarly situated employees

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were treated differently, she has failed to establish a prima facie case of discrimination and
summary judgment could be granted on this basis alone.
D.

Pretext

Even if Brown had established her prima facie case, however, her discrimination claims
would still fail because she cannot demonstrate that Wyndemere’s reason for her termination—
that she had failed to timely complete the assessments as required by IDHR regulations despite
numerous warnings—was pretextual. To establish pretext, Brown must demonstrate that “(a) the
employer’s nondiscriminatory reason was dishonest; and (b) the employer’s true reason was
based on a discriminatory intent.” E.E.O.C. v. Target Corp., 460 F.3d 946, 960 (7th Cir.2006).
“A plaintiff shows that a reason is pretextual ‘directly by persuading the court that a
discriminatory reason more likely motivated the defendants or indirectly by showing that the
defendants’ proffered explanation is unworthy of credence.’ ” Blise v. Antaramian, 409 F.3d
861, 867 (7th Cir. 2005) (brackets omitted) (quoting Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). In determining whether
an employer’s explanation is honest, courts look to the reasonableness of the explanation.
See Duncan, 518 F.3d at 492; Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000) (“The
focus of a pretext inquiry is whether the employer’s stated reason was honest, not whether it was
accurate, wise or well-considered.”).
Brown has not presented any evidence that Wyndemere’s proffered reason for her
termination was dishonest or based on discriminatory intent. In fact, she admitted both at her
termination meeting and in her deposition that she had not timely completed her assigned
assessments, undercutting any argument that she was meeting Wyndemere’s legitimate
expectations and that Wyndemere’s stated reason for her termination was pretextual. Although

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she may believe that Wyndemere’s policies were applied unevenly to her and that her failure to
complete the assigned assessments did not warrant termination, the Court does not sit as a “super
personnel department that second-guesses employer’s business judgments.” Millbrook v. IBP,
Inc., 280 F.3d 1169, 1181 (7th Cir. 2002) (citation omitted) (internal quotation marks omitted).
Because Brown has not established a prima facie case of discrimination and has not called into
question Wyndemere’s proffered reason for her termination, the Court grants Wyndemere’s
motion for summary judgment on Brown’s race discrimination claims.
II.

Retaliation Claims
In her complaint, Brown also indicated that she was claiming retaliation. Brown may

again prove this claim under either the direct or indirect method of proof. Everroad v. Scott
Truck Sys., Inc., 604 F.3d 471, 481 (7th Cir. 2010); Hoffelt v. Ill. Dep’t of Human Rights, 867
N.E.2d 14, 19, 367 Ill. App. 3d 628, 310 Ill. Dec. 701 (2006). A common element under both
methods, however, is that Brown engaged in statutorily protected activity. Everroad, 604 F.3d at
481. But aside from submitting her EEOC charge after her termination, which would not support
a retaliation claim with respect to her termination, Brown acknowledges that she did not engage
in any statutorily protected activity. Thus, her retaliation claim fails and summary judgment is
granted for Wyndemere on Brown’s retaliation claims.

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CONCLUSION
For the foregoing reasons, Wyndemere’s motion for summary judgment [28] is granted.
This case is terminated.

Dated: March 12, 2014
SARA L. ELLIS
United States District Judge

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