Camacho v. Gynecologic Specialists of Northwestern, S.C.

Filing 56

OPINION and Order Signed by the Honorable Charles R. Norgle, Sr on March 25,2016. Mailed notice(ph, )

IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DURCY CAMACHO,

Civil Action No.

Plaintiff,

13

CV 3891

Hon. Charles R. Norgle

v.

GYNECOLOGIC SPECIALISTS OF
NORTHWESTERN, S.C.,
Defendant.

OPINION AND ORDER
Charles R. Norgle, United States District Judge

Plaintiff Durcy Camacho ("Plaintiff') was terminated by her employer, Defendant
Gynecologic Specialists of Northwestern, S.C. ("Defendant"), while taking an approved medical
leave of absence due to the birth of her daughter. After exhausting her administrative remedies,
she received a Right to Sue Letter from the Equal Employment Opportunity Commission on May

15, 2013. Nine days later, Plaintiff filed a complaint alleging that Defendant unlawfully
discriminated against her on the basis of her pregnancy, race, and/or gender-putative violations

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. $ 2000e et seq. ("Title VII"),

and

supplemental Illinois statutes. Before the Court is Defendant's motion for summary judgment on

all of Plaintiff s claims. For the following reasons, Defendant's motion is granted in part

and

denied in part.

I. BACKGROUND'
Defendant is a gynecological and obstetrics practice that, during2010 and 2011, was
owned by three female doctors-Drs. Snow, Streicher, and Blumenthal. Plaintiff, a Hispanic

rThe Court takes the undisputed facts from the parties' Local Rule 56.1 statements and notes disputed
facts, if any, within the text.

female, started working for Defendant in July of 2006 as a medical records clerk. Plaintiff
remained in her position as a medical records clerk until Defendant terminated her employment

on April 15, 2011, three weeks after the birth of her daughter. When Plaintiff s employment
ended, Defendant employed between twenty and twenty-five employees, twenty of whom were
female and four of whom were Hispanic.
Throughout the time that Plaintiff worked for Defendant, there had been an ebb and flow

of the number of people employed by Defendant, particularly at the medical records clerk
position. In September of 2008, Defendant closed its obstetrics practice and the number of
treating doctors fell from eight to three; Defendant decided to downsize its medical records staff
as a result. Defendant terminated Tamara White's employment, an African-American female

who was never pregnant while she worked for Defendant. That employment decision left two
records clerks, Plaintiff and Ketlyne Guillaume. Defendant downsized again in January 2009,

eliminating Ms. Guillaume's position; Mrs. Guillaume was not Hispanic but had taken
pregnancy-related medical leave in 2006. The reduction in staff left Plaintiff as the sole medical

records clerk. During her time as the sole medical records clerk, Plaintiff complained to Jeff
Rekett, the Practice Manager for Defendant, about being overwhelmed with work. Plaintiff

worked as the only medical records clerk until November 2009, when Defendant hired Jessie
Brett and Angela Pasha, both Caucasian women, as part-time medical records clerks. Ms. Brett
stopped working for Defendant on May

27,20l},leaving Ms. Pasha

and Plaintiff as the only two

medical records clerks.
Between 2006 and October 201,0, Defendant evaluated Plaintiffs work performance five

times, in which her performance appeared satisfactory overall and she continued to receive
modest pay increases. Defendant states that Mr. Rekett received a complaint from Ms. Pasha on

December 22,2010, that Plaintiff was not productive enough, effectively shifting extra job duties

to Ms. Pasha. When Mr. Rekett shared the complaint with Dr. Snow, she relayed that she had
heard a similar complaint about Plaintiff from another employee. Defendant contends that

Plaintiff s work perfoffnance had been questioned and scrutinizedby Plaintiff s supervisors since
2009.
Defendant does not have a written maternity leave policy that it provides or publishes to
its employees. However, it is evident that Defendant has a standard policy of allowing employees

six weeks off maternity leave and will extend an employee's time off if it is medically necessary.

Defendant previously provided maternity leave

to four

women other than Plaintiff--Ms.

Guillaume, Beth Byrd, Mariana Pehar, and Nicole Carbonara. Ms. Guillaume took four and a

half weeks of leave in 2006, Ms. Byrd took six weeks of leave in 2006, Ms. Pehar took twelve
weeks of leave in 2008 because she had medical complications related to the birth of her twins,

and Ms. Carbonara took six weeks

of leave in 2009. Defendant terminated Ms.

Carbonara's

employment at the end of her approved six-week leave on December 15, 2009, because she did
not retum to work after she asked

for-but did not receive-additional time off.

Plaintiff was pregnant several times during her employment with Defendant. In 2008, she
was pregnant with twins, but she miscarried. In 2009, she requested and received time off for her
pregnancy; however, the second pregnancy also resulted in a miscarriage. Between March and
November of 2009, Plaintiff did not go to work for medical reasons on twenty-eight occasions.

Sometime in the summer of 2010, Plaintiff informed Defendant that she had become
pregnant for the third time. Medical complications related
thereafter. She took

to her pregnancy

off work from August 10th through lTth

pursuant

began shortly

to a doctor's

order

because she was having abnormal bleeding. Upon her return to work, her doctor did not impose

any pregnancy-related work restrictions. Plaintiff remembers Mr. Rekett telling her in August

of

2010 that she could not leave work to attend future doctor's appointments; she had to schedule
the appointments outside of work hours. However, Plaintiff did not follow Mr. Rekett's directive

and continued

to attend her doctor appointments during work

admonished by

Mr. Rekett, Plaintiff was not disciplined for attending doctor

hours. Other than being
appointments

during work hours.

Plaintiff visited her doctor on December 24, 2010, because she noticed abnormal
bleeding again. After the appointment, she received written instructions from her nurse that she
could resume a normal amount of activity. Around the same time of the doctor's visit, Plaintiff
asked

Mr. Rekett if she could be assigned to light duty work, meaning that she would no longer

have to climb a ladder to access medical records or collect the medical records from the treating

doctor's offices. For example, she asked to no longer pick up heavy files from the floor of Dr.
Streicher's office. In addition, Plaintiff had access to a push cart so that she did not have to carry

the files from place to place, but she had to

lift them on her own. Mr.

Rekett asserts that he

modified Plaintifls duties accordingly, but Plaintiff contends that her requested accommodations
were not honored. Defendant asserts that it has not provided light duty assignments to any of its
employees because these duties are essential job functions for medical records clerks.

On January 8,2011, Plaintiff told Mr. Rekett of her intent to take a medical leave of
absence after the birth

of her child, expected to be April 3, 2011. At that time, Mr. Rekett

informed Plaintiff of Defendant's policy to "allow six weeks off work for the birth of a child."

Def.'s Local Rule 56.1(a)(3) Statement Undisputed Material Facts Supp. Mot. Summ. J. fl 40.
Plaintiff then had complications with her pregnancy, which required her to remain on bedrest

until delivery; she provided the doctor's note requiring such to Defendant on January 28,2011.
Defendant granted Plaintiff s request for the needed bedrest.

ln February, a few weeks after Plaintiff went on bedrest, Mr. Rekett called Plaintiff

and

told her that she would be responsible for paying the portion of insurance premiums that were
being paid by Defendant, roughly $500 per month. Mr. Rekett and Plaintiff also discussed
whether Plaintiff could acquire alternative health insurance; such as, being added

to

her

husband's health insurance policy. Plaintiff could not find alternative health insurance options
and could not pay Defendant's portion of the health insurance premiums. Defendant continued to

pay Plaintiffls health insurance premiums until the end of April, the month she was terminated.

Plaintiff gave birth to her daughter on March 25,2011, and thereafter began her maternity leave
pursuant to Defendant's policy.

Meanwhile, in Plaintiff s absence, Mr. Rekett and Dr. Snow observed that Ms. Pasha
could handle the medical records duties as the sole clerk. Around February 2011, Defendant
decided to promote Ms. Pasha to a receptionist position and hire a replacement medical records

clerk. On March 1,2011, Defendant hired Darcee Kingsley as a medical records clerk. Pleased

with Ms. Kingsley's work, Dr. Snow decided that Defendant only needed one medical records
clerk. With the agreement of the other two owners, Defendant terminated Plaintiff s employment

on April 15,2011. To effect the termination, Mr. Rekett called Plaintiff and told her that
Defendant was "'down-sizing"'and it had "eliminated one position"-hers. Def.'s Resp. to Pl.'s

Additional Facts !f 31. Since then, Defendant hired another treating doctor in January of 2012,
and because of the addition,

it hired an additional medical records clerk

as

well.

II. DISCUSSION
A. Standard of Decision
At the summary judgment stage, the Court views the record in the light most favorable to
the nonmoving party and construes all reasonable inferences in her favor. Hart v. Mannina, 798
F.3d 578, 584 (7th Cir. 2015) (citation omitted).

"[A] court may not make credibility

determinations, weigh the evidence, or decide which inferences to draw from the facts; these are

jobs for a factfinder." Payne v. Pauley , 337 F .3d 7 67 , 770 (7th Cir. 2003) (citing Anderson v.

Liberty Lobby. Inc. , 477

U .5. 242, 255 ( I 986)). "Summary

judgment is appropriate only where

there are no genuine issues of material fact and the moving part[y is] entitled to judgment as a
matter of law." Hart,798 F.3d at 584 (citing Fed. R. Civ. P. 56(a)); see also Celotex Com. v.
Catrett, 477 U.S. 317,322 (1986).
such that a reasonable

"A genuine issue of material fact exists when the evidence is

jury could return

a

verdict for the nonmoving party." Wells v. Coker, 707

F.3d756,760 (7thCir.2013) (intemal quotation marks and citation omitted). Specifically in
Title VII case, such

as

a

this, "[s]ummary judgment for the defendant is appropriate if the plaintiff

fails to carry [her] burden to establish a prima facie case or is unable to show a genuine dispute
about whether the neutral reason advanced by the employer was merely pretextual." Smith v.

Chi. Transit Auth., 806 F.3d 900, 904 (7th Cir. 2015).

B. The Merits of Defendants' Motion for Summary Judgment
Defendant moves

for

summary judgment

in its favor on all

counts

in Plaintiffs

Complaint, arguing that Plaintiff fails to sufficiently show that Defendant illegally discriminated
against her. Plaintiff avers that genuine issues of material fact preclude summary judgment and
that her discrimination claims should be left for

a

jury to decide. In attacking summary judgment,

Plaintiff conflates her six legal claims into a single argument; contending that: "Under either the

direct or indirect method of proof, several questions of material fact prohibit [Defendant] from

proving as a matter of law that [Defendant] did not discriminate against [her] based upon her
race, pregnancy, and/or sex." Pl.'s Durcy Camacho's Resp. Opp. Def. Gynecologic Specialists

of

Northwestern, S.C.'s Mot. Summ. J. 2 [hereinafter "Pl.'s Resp."]. However, Plaintiff disregards
the intricate analysis required in Title VII cases and distorts the burden of proof at the summary
judgment stage of litigation. While the facts are construed in her favor, the burden to establish a
prima facie case remains her burden.

Title VII makes it unlawful for employers to discriminate against an employee "because

of such individual's race, color, religion, sex, or national origin" 42 U.S.C. $ 2000(e)-2(a)(l).
There are two ways that a plaintiff can show a claim of employment discrimination under Title

VII and survive a motion for summary judgment, utilizing either the "direct" or "indirect"
method of proof. Smith v. Chicago Transit Authorit.v, 806 F.3d 900, 904 (7th Cir. 2015).

Under the direct method, a plaintiff can present two types of evidence. Id. One type
evidence is direct evidence---evidence

of

of the employer's discriminatory intent; such as, "an

explicit admission by the employer that a particular decision was motivated by discrimination."
Diaz v. Kraft Foods Global. Inc., 653 F.3d 582, 587 (7th Cir.

20ll).

There is no direct evidence

in this case because Plaintiff has not submitted evidence of a discriminatory statement made by
anyone employed by Defendant. Cf. Maldonado v. U.S. Bank, 186 F.3d 759,766 (7th Cir. 1999)

(finding direct evidence of discrimination because the defendant told the plaintifl who was
pregnant, that she was fired "'due to [her] condition"'). The absence of direct evidence is not
unusual because it rarely exists. See Diaz, 653 F.3d at 587.

The second type of evidence in the direct method context is circumstantial evidence.
Circumstantial evidence is basically anything else "othat point[s] directly to a discriminatory

reason for the employer's action."' Smith, 806 F.3d at 905 (quoting Davis v. Con-Wav Transp.

Cent. Express. Inc., 368 F.3d 776, 783 (7th Cir. 2004)). Relevant examples of "circumstantial
evidence include 'suspicious timing, ambiguous oral or written statements, or behavior toward or
comments directed at other employees in the protected group."' Smith, 806 F.3d at 905 (quoting

Good

v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Ck. 2012)). What constitutes

a

sufficient amount of circumstantial evidence to survive summary judgment has been labeled a
"convincing mosaic," Smith, 806 F.3d at 905, or described as

ooa

longer chain of inferences,"

Diaz,653 F.3d at 587. As discussed infra, Plaintiff refers to several instances of circumstantial
evidence to argue that Defendant illegally discriminated against her.
Because the direct method of proof is not mutually exclusive, a

plaintiff can also defeat a

summary judgment motion by using the indirect method of proof as promulgated in McDonnell

Douslas v.

Green,4ll U.5.792 (1973).

See Smith, 806 F.3d at 905; see also Orton-Bell v.

Indiana, 759 F.3d 768,773 (7th Cir. 2014) ("While all relevant direct and circumstantial
evidence is considered (in its 'totality') in both methods, we do indeed consider the 'direct' and

'indirect' methods separately when reviewing summary judgment because we are not authorized
to abjure a framework that the Supreme Court has established."). Under the McDonnell Douglas
framework, a plaintiff must establish his or her prima facie case, then the burden shifts to the
employer to provide a legitimate, nondiscriminatory reason for the adverse employment action,
and finally plaintiff may rebut the employer's reason as

pretext-"'a phony reason for some

action."'Smith,806 F.3d at 905 (quoting Wolf v. Buss (Am.) Inc.,77 F.3d914,919 (7th Cir.
1996)). No matter how a plaintiff presents the employment discrimination claim, "'the continued

focus [is] on whether the plaintiff has introduced sufficient evidence to give rise to an inference

of intentional discrimination."' Smith, 806 F.3d at 905 (quoting Young v. United Parcel Serv..
Inc., 135 S. Ct. 1338, 1355 (2015)).

l. Evidence of Defendant's discrimination based upon Plaintiffs pregnancy, childbirth
or related medical conditions
"Congress amended Title

VII in

1978 to explicitly extend protection to pregnant women:

'[w]omen affected by pregnancy, childbirth or related medical conditions shall be treated the
same

for all employment-related purposes...as other persons not so affected but similar in their

ability or inability to work...."'Maldonado, 186 F.3d at762 (citing 42 U.S.C. $ 2000e(k))."To
prevail on a pregnancy discrimination claim, a plaintiff 'must show that she was treated
differently because of her pregnancy."'

]d

at 763 (quoting Geier v. Medtronic, Inc. ,99 F.3d 238,

241 (7th Cir. 1996)). And as summarized supra, circumstantial evidence of discrimination can be
shown in three ways:

(1) suspicious timing, ambiguous oral or written statements, or behavior toward or
comments directed at other employees in the protected group; (2) evidence,
whether or not rigorously statistical, that similarly situated employees outside the
protected class received systematically better treatment; and (3) evidence that the
employee was qualified for the job in question but was passed over in favor of a
person outside the protected class and the employer's reason is a pretext for
discrimination.
Darchak v. City of Chicaeo Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009). The third type of
circumstantial evidence is most applicable in this case.

Viewing the evidence in the light most favorable to Plaintiff, as the Court must do in
reviewing a summary judgment motion, the Court finds that Plaintiff was qualified for the
medical records clerk position-she had worked

for Defendant for almost five years and

continued to receive pay increases during that time. While Plaintiff was out on an approved
medical leave, Defendant effectively replaced her with Ms. Kingsley, who was not pregnant and
outside of the protected class. Defendant's characterization of o'down-sizing"-promoting Ms.

Pasha to receptionist,

filling Ms. Pasha's position with Ms. Kingsley, and eliminating Plaintiff

s

position-could be considered by a reasonable jury as pretext for its unlawful discriminatory
intentions. Further emphasizing the possibility that Defendant's downsizing explanation was
pretext is the phone call that Plaintiff received from Mr. Reckett, during which he demanded that
she begin paying Defendant's portion of her health insurance premiums while she was on leave.

Additionally, there was not a decrease in treating doctors to precipitate the reduction in staff like
there had been in the past. Moreover, Defendant terminated Plaintiff only three weeks into her

post-delivery medical leave, which, by Defendant's own policy, was supposed to extend for six
weeks. Therefore, a reasonable jury could find circumstantial evidence showing that Defendant
treated Plaintiff differently because she was "affected by pregnancy, childbirth or related medical

conditions." 42 U.S.C. $ 2000e(k). Because the Court finds that there is sufficient circumstantial

evidence

to

support Plaintiffs Count

Ill-being unlawfully

terminated

on the basis of

pregnancy, childbith or related medical conditions-it does not reach an analysis under the
indirect method of proof. See Paz v. Wauconda Healthcare & Rehab. Ctr. , 464 F.3d 659 (7th Cir.
2006) (remanding to district court after finding sufficient evidence under direct method of proof
and not reaching analysis under the indirect method of proof).
2.

Plaintiffs roce and gender claims

Regarding Plaintiff s claim that she was unlawfully discriminated against because she is

Hispanic or because she is a woman, the evidence under either the direct or indirect methods

of

proof is much less convincing. In its trilogy of opinions discussing the summary judgment
standard, the Supreme Court held that the onus is on the non-movingparty to produce admissible

evidence

to demonstrate a genuine issue of material fact, not on the moving party to

give

evidence that there is no factual dispute. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

10

475 U.S. 574, 588 (1986) (requiring non-moving party to produce positive evidence of an
essential element of the claim to survive summary judgment); Anderson v. Liberty Lobby. Inc.,

477 U.5.242,249 (1986) ("[T]here is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party."); Celotex Corp. v.
Catrett, 477 U.S. 317 , 322-23 (1986) ("[T]he plain language of Rule 56(c) mandates the entry

of

summary judgment, . . . against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on which that party

will

bear the

burden of proof at trial."). Or, as the Seventh Circuit succinctly stated, 'osummary judgment is the

'put up or shut up' moment in a lawsuit." See Siegel v. Shell Oil Co. , 612 F .3d 932,937 (7th Cir.
2010).

In the introduction of her Response, Plaintiff argues, inter alia, that she was paid

less

than the other Caucasian medical records clerks who were hired after her and that the junior
clerks remained employed after Plaintiff was terminated. However, the remainder of her brief
does not return to these two factual contentions to explain how these two facts,

if true,

conclusion that she was discriminated against on the basis of race or gender.
province of the courts to complete litigants' thoughts for them, and [courts]

lead to the

"[I]t is not the

will not address []

underdeveloped arguments." White Eagle Co-Op Ass'n v. Conner, 553 F.3d 467,476 n.6 (7th

Cir. 2009); see also Paulcheck v. Union Pac. R. Co., Case No. 09 CY 4226,2010 WL 1727856

*1 (N.D. Ill. Apr. 29,2010) (collecting
arguments

cases) (finding "that

it is not for the court to make

for a party, and that skeletal and unsupported arguments are deemed waived.")

Therefore, the Court finds that Plaintiff fails to meet her burden of establishing a prima facie
case under the direct method of proof.

11

To support an indirect method of proof, Plaintiff-in a similarly undeveloped fashionconcludes that she "has established all four elements for establishing a prima facie case of race,
sex and pregnancy discrimination"; but she does not cite to any factual support in the record for

that conclusion. Pl.'s Resp. 11. Instead, she surmises that "the record is rife with evidence
showing that similarly situated non-Hispanic, non-pregnant employees received favorable
treatment

-

i.e., kept their employment and/or wds promoted, while [Plaintiff] lost her

employment." Id. While

it is true that Ms. Pasha

and Ms. Kingsley remained employed with

Defendant beyond the date that Plaintiff was terminated, such a conclusory remark is not enough

to establish a prima facie case for unlawful discrimination under the indirect method of proof.
Because Plaintiff has not produced any argument to show what evidence supports the essential
elements of her race or gender discrimination claims, the Court grants summary judgment to
Defendant on Counts I and V.
3.

Plaintiffs

state luw cluims under the

lllinois Human Rights Act.

Plaintiff has not argued that she has presented sufficient evidence to succeed under the
supplemental state law claims. In a footnote, Plaintiff states,

"As [Defendant] noted, given

the

high similarity of the intent and construction of Title VII and the IHRA, the use of Title VII case

law is appropriate to analyze discrimination under both." Pl.'s Resp. 14 n. 1 1. Plaintiff does not
indicate where Defendant noted this proposition and her response is absent any legal support for
her assumption. Plaintiff s response is devoid of any citation to the Illinois Human Rights Act,
775

lll. Comp.

Stat. 512-l0I et seq., citation to a case from the Illinois courts interpreting the

Act, or citation to a Seventh Circuit or District Court case interpreting the Act. The Court will
not formulate a prima facie case on these state law claims on her behalf. See White Eaele Co-Op

Ass'n, 553 F.3d at 476 n.6. Therefore, the Court deems Plaintiff s state law claims are waived

t2

and insufficient to defeat Defendant's motion for summary judgment. Accordingly, summary
judgment on Counts II, IV, and VI is entered in favor of Defendant.

III. CONCLUSION
The Court finds that sufficient circumstantial evidence exists such that a reasonable jury

could return a verdict favorable to Plaintiff on Count
Defendant's motion for summary judgment on Count

III of her Complaint. Therefore,

III is denied. As to the remaining Counts in

Plaintiff s Complaint, Plaintiff failed to present an argument sufficient to show that she has met
her burden of establishing a prima facie claim. Therefore, Defendant's motion for summary
judgment is granted on the remaining counts. Accordingly, Defendant's summary judgment
motion is granted in part and denied in part.

IT IS SO ORDERED.

CHARLES RONALD NORG
United States District Court

DATE: March 25,2016

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