Lawton v. Weil Foot and Ankle Institute, LLC
Filing
154
MEMORANDUM Opinion and Order: Defendant Swedish Covenant Hospital's motion for summary judgment 119 is denied. Plaintiff's motion to strike 152 is denied as moot. A status hearing is set for March 17, 2021 at 9:30 a.m. The parties shall confer regarding the possibility of settlement and the scheduling of next steps, and they shall file a joint status report by March 12, 2021. Signed by the Honorable Jorge L. Alonso on 2/10/2021. Notice mailed by Judge's staff (lf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES LAWTON
Plaintiff,
v.
WEIL FOOT & ANKLE
INSTITUTE, LLC and SWEDISH
COVENANT HOSPITAL,
Defendants.
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No. 17 CV 00297
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Defendant Swedish Covenant Hospital seeks summary judgment in its favor on plaintiff’s
claim that he was wrongfully discharged in retaliation for complaining of discrimination prohibited
by the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. For the reasons set
forth below, the motion is denied.
BACKGROUND
The following is the relevant factual background, viewing the facts in the light most
favorable to plaintiff (as the Court must at this stage). See Fish v. GreatBanc Tr. Co., 749 F.3d
671, 674 (7th Cir. 2014) (“We do not necessarily vouch for the objective accuracy of all factual
statements here, but defendants moved for summary judgment, which requires that we view the
evidence in this harsh light.”). In 2014, plaintiff, Dr. James Lawton, became a co-director of the
podiatric residency program at Swedish Covenant Hospital (“SCH”). At that time, he was also
employed by Weil Foot & Ankle Institute, LLC, (“WFAI”) as a practicing podiatric physician and
surgeon. In 2015, plaintiff suffered from a painful and debilitating medical condition, a ruptured
disc in his neck, which required surgery. He sought certain accommodations from WFAI,
including time off, but WFAI did not accommodate him. On May 4, 2015, WFAI terminated
plaintiff. Plaintiff filed an EEOC charge against WFAI, claiming that his discharge was the product
of discrimination on the basis of disability, in violation of the ADA. In January 2017, after
receiving his right-to-sue letter from the EEOC, plaintiff filed this lawsuit against WFAI.
Meanwhile, plaintiff continued working as co-director of the podiatric residency program
at SCH, and Dr. Derek Kelly, then the Chief Medical Officer at SCH, was satisfied with his job
performance. (Def.’s LR 56.1 Resp. ¶ 9, ECF No. 150.) However, plaintiff’s relationship with the
other co-director, Dr. Gregory Amarantos, who “owns an interest” in WFAI (Pl.’s LR 56.1 Resp.
¶ 10, ECF No. 145), became tense. Dr. Amarantos told Dr. Kelly that plaintiff had sued his practice.
(Def.’s LR 56.1 Resp. ¶ 21.)
In February 2017, plaintiff and Dr. Amarantos met with Dr. Bruce McNulty, who had
recently replaced Dr. Kelly as SCH’s Chief Medical Officer, and Dr. Eric Gluck, SCH’s Chief
Academic Officer. During this meeting, Dr. Amarantos stated that he was upset over the lawsuit
and its financial cost to his practice. According to plaintiff, Dr. Amarantos screamed out that
plaintiff was suing him in federal court and he “wants something fucking done about it.” (Id. ¶ 23.)
Plaintiff felt that Dr. Amarantos became increasingly hostile toward him from that point
forward. In the spring of 2017, plaintiff and Dr. Amarantos were unable to cooperate in creating
the rotational schedule for the 2017-2018 academic year, instead creating alternative versions of
the schedule. (Pl.’s LR 56.1 Resp. ¶ 29.) Dr. McNulty became frustrated by what he perceived to
be the co-directors’ inability to communicate and collaborate effectively. (Id.; see id. ¶ 32; Def.’s
LR 56.1 Stmt., Ex. D, McNulty Dep. at 62:14-63:1, 119:19-22, ECF No. 121-4.)
In late July 2017, Dr. McNulty told plaintiff that he was preparing to “interview[] other
people to be director or co-directors of” the podiatric residency program, having been told that
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plaintiff was uncooperative. (Id. ¶ 27; see Pl.’s LR 56.1 Resp. ¶¶ 28, 33.) As he explained at his
deposition, Dr. McNulty had become concerned about the “lack of ability of the two program
directors to communicate in a way that allowed the program to be functional,” so “a decision
needed to be made to do something.” (Pl.’s LR 56.1 Resp. ¶ 32.)
In August 2017, Dr. McNulty conveyed some feedback to plaintiff from some of the
residents he supervised, hoping it would be “valuable for him” as he continued to work with
residents. (Pl.’s LR 56.1 Resp. ¶ 35.) Dr. McNulty recalls that plaintiff seemed “accepting” of the
feedback at the time. (McNulty Dep. at 49:5.) However, two of the residents who had offered
feedback complained that, following this conversation with Dr. McNulty, plaintiff angrily
confronted them about it; one reported that plaintiff had punched a wall during the encounter. (Pl.’s
LR 56.1 Resp.. ¶¶ 37-38.) According to plaintiff, Dr. McNulty told plaintiff of these residents’
complaints but did not tell him the details, and, having seen those details in the course of this
litigation, plaintiff disputes many of them, asserting that his conversations with the residents were
civil, his demeanor was not angry or threatening, and he did not punch a wall. (Defs.’ LR 56.1
Resp. ¶ 33, see id. ¶¶ 28-30.) 1 Dr. McNulty testified at his deposition that, after the residents
complained about the angry confrontations, he called plaintiff for an explanation, and he does not
remember what plaintiff said in response, although he does remember that he was already
considering terminating plaintiff at that time. (McNulty Dep. at 55:15-56:11).
On September 1, 2017, SCH terminated plaintiff. Dr. McNulty testified that it was
“essentially” his decision, which he made because of the ongoing communication problems
between plaintiff and Dr. Amarantos combined with what he saw as plaintiff’s inappropriately
angry confrontation with the complaining residents. (Pl.’s LR 56.1 Resp.. ¶ 42.) He testified that
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Defendant purports to dispute that Dr. McNulty refused to tell plaintiff the details of the written complaint,
although it does not cite contrary evidence. (Id. ¶ 33.)
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for “several months” he had known that “one or both” of Dr. Amarantos and plaintiff “needed to
go” for the residency program to have effective leadership, but he was not specifically considering
terminating plaintiff until he learned of the angry confrontations with the complaining residents in
August 2017. (Id. (citing McNulty Dep. at 112:2-15); see also McNulty Dep. at 49-56, 63:2-6.)
According to plaintiff, Dr. McNulty told him, “you made up my mind for me,” although Dr.
McNulty had never really listened to plaintiff’s “side of the story.” (Pl.’s Ex. 8, Lawton Dep. at
417:18-418:8, ECF No. 145-8.)
Following his termination from SCH, plaintiff filed an EEOC charge against SCH. After
receiving a right-to-sue letter, plaintiff amended his complaint in this case to assert an ADA
retaliation claim against defendant. On April 15, 2020, plaintiff stipulated to dismiss his claims
against WFAI pursuant to a settlement (see Stipulation of Dismissal, ECF No. 118), leaving his
retaliation claim against SCH as the only remaining claim in this suit.
DISCUSSION
“The Court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Wackett v. City of Beaver Dam, 642 F.3d 578, 581 (7th Cir. 2011). A genuine dispute
of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court may not
weigh conflicting evidence or make credibility determinations, but the party opposing summary
judgment must point to competent evidence that would be admissible at trial to demonstrate a
genuine dispute of material fact. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 705
(7th Cir. 2011); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The court will enter
summary judgment against a party who does not “come forward with evidence that would
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reasonably permit the finder of fact to find in [its] favor on a material question.” Modrowski v.
Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013). The Court construes all facts and draws all
reasonable inferences in favor of the nonmoving party. Chaib v. Geo Grp., Inc., 819 F.3d 337,
341 (7th Cir. 2016).
The ADA provides, as a “general rule,” that “[n]o covered entity shall discriminate against
a qualified individual on the basis of disability in regard to . . . the . . . discharge of employees . . .
and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The statute
defines the term “discriminate against a qualified individual on the basis of disability” to include
“not making reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an . . . employee” or “denying employment
opportunities” to employees who need such accommodations. Id. § 12112(b)(5)(A-B). The ADA’s
retaliation provision states that “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this Act or because such individual
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this Act.” 42 U.S.C. § 12203. “In order to prove a claim of retaliation, the employee
must show: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse action;
and (3) a causal connection between the two.” Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No.
524, 795 F.3d 698, 701 (7th Cir. 2015). “[T]he appropriate question on summary judgment is
simply: could a reasonable jury find based on all available evidence that a . . . retaliatory motive
caused [plaintiff’s] termination?” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 569 (7th Cir. 2017);
cf. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016) (“[T]he sole question that
matters [is] [w]hether a reasonable juror could conclude that [plaintiff] would have kept his job if
he had [not complained of disability discrimination] and everything else had remained the same.”);
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see also Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004) (noting that courts
generally evaluate claims of retaliation the same way under various different statutes prohibiting
employment discrimination, including the ADA and Title VII)..
Defendant argues that it is entitled to summary judgment because plaintiff has not produced
evidence establishing a causal connection between the protected activity (his lawsuit against
WFAI) and the adverse action (his termination from SCH). According to defendant, while the
lawsuit may have caused tension between plaintiff and his co-director, Dr. Amarantos, there is no
evidence that it played any role in SCH’s decision to terminate plaintiff. It was Dr. McNulty who
made that decision, and, defendant argues, the decision was based on two factors: (1) the
ineffective leadership of the podiatric residency program that Dr. McNulty believed plaintiff and
Dr. Amarantos were providing, and (2) plaintiff’s angry confrontation of the two residents who
had provided feedback to Dr. McNulty about plaintiff’s performance as director. This lawsuit,
defendant argues, was not a factor in the decision.
In the end, the jury might well agree with defendant, but the Court cannot say that no
reasonable juror could find otherwise. Considering plaintiff’s termination in its full factual context
and viewing the evidence from plaintiff’s point of view, a reasonable juror could conclude that
plaintiff would have kept his job if he had never filed this lawsuit to complain that WFAI
discriminated against him based on his disability.
The Seventh Circuit has recognized that evidence of a pretextual reason for a termination
decision, in combination with evidence of suspicious timing, can together create a genuine issue
of fact. See Coleman v. Donahoe, 667 F.3d 835, 860-62 (7th Cir. 2012); see also Haworth v.
Round Lake Area Sch., Cmty. Unit Sch. Dist. 116, No. 17 C 7038, 2019 WL 3080928, at *6-8
(N.D. Ill. July 15, 2019). To demonstrate that an employer’s given reason for an adverse
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employment action was a pretext for an unlawful motive, an employee must demonstrate not just
“faulty reasoning or mistaken judgment on the part of the employer,” but that the employer’s
reason is a “lie, specifically a phony reason” for the adverse employment action. Tibbs v. Admin.
Office of the Ill. Courts, 860 F.3d 502, 506 (7th Cir. 2017) (internal quotations marks omitted).
The employee may make the requisite showing by, for example, pointing to evidence that the
proffered reason is “factually baseless” or “insufficient to motivate” the employer’s action. Id.
(internal quotations marks omitted). When an employer fails to follow its own procedures in taking
an adverse employment action and faults the employee based on “subjective criteria,” particularly
when the employee is experienced and well-qualified, it leaves itself vulnerable to a factfinder’s
inference that its given reason for the decision was a pretext for an unlawful motive. See Guinto v.
Exelon Generation Co., LLC, 341 F. App’x 240, 246 (7th Cir. 2009) (citing Rudin v. Lincoln Land
Cmty. Coll., 420 F.3d 712, 727 (7th Cir.2005), Giacoletto v. Amax Zinc Co., 954 F.2d 424, 42728 (7th Cir.1992), and Bell v. EPA, 232 F.3d 546, 551-52 (7th Cir.2000)).
Whether the timing of the adverse action lends support to the inference of causation
“depends on context, just as an evaluation of context is essential to determine whether an
employer’s explanation [for an adverse employment action] is fishy enough to support an inference
that the real reason must be discriminatory.” Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312,
315 (7th Cir. 2011). Because the issue depends on context, there is no “bright-line numeric rule,”
Coleman, 667 F.3d at 861, providing that, after a certain length of time, an adverse action is too
far removed from the protected activity for the mere “order of events” to suggest a “causal link,”
Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998). In cases where no other
evidence suggests a causal nexus, a few months (or indeed much less) may be too long, see, e.g.,
Davidson, 133 F.3d at 511; cf. Loudermilk, 636 F.3d at 315. On the other hand, when there is
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“corroborating evidence of retaliatory motive,” an “interval” of “months” may not be too long to
defeat the inference of causation, see Coleman, 667 F.3d at 861; Malin v. Hospira, Inc., 762 F.3d
552, 559 (7th Cir. 2014) (explaining that the “mere passage of time is not legally conclusive proof
against retaliation” (internal quotation marks omitted) and citing cases stating that an inference of
causation is permissible even if a period of one or two years separates the protected activity from
the adverse action). The district court “may not view recency alone as the decisive factor,” if the
surrounding circumstances leading up to the protected activity or events transpiring during the
interim between the protected activity and the adverse action suggest an unlawful motive. See
Hasan v. Foley & Lardner LLP, 552 F.3d 520, 528–29 (7th Cir. 2008) (supervisor’s anti-Muslim
comments on September 11, 2001, were not too remote to support causation of Muslim employee’s
termination over a year later, where the employee was purportedly terminated for reduced output
and deteriorating performance, although he had received positive performance reviews and found
plenty of work prior to September 11, and his department as a whole did not lack work afterward).
The Seventh Circuit has stated (in dicta) that an employment discrimination plaintiff may
be able demonstrate a triable issue of material fact by adducing evidence that his “former employer
waited in the weeds for five or ten years and then retaliated” against him for protected activity.
Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 n.6 (7th Cir. 1996). Several judges have relied
on these dicta to conclude that, where the evidence suggests that the employer lay in wait for an
employee who had made protected complaints of discrimination, firing him as soon as a plausible
pretext presented itself, the employee has a triable retaliation claim. See Eversole v. Spurlino
Materials of Indianapolis, LLC, 804 F. Supp. 2d 922, 935 (S.D. Ind. 2011) (“[I]t is not difficult to
imagine that [the employer] patiently waited in the weeds to retaliate against [the plaintiff], and
that [the plaintiff’s accident, two years after plaintiff filed an employment discrimination suit,]
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gave it the opportunity to strike while the iron was hot.”); Bowers v. Radiological Soc. of N. Am.,
Inc., 101 F. Supp. 2d 691, 696 (N.D. Ill. 2000) (denying summary judgment because, where the
plaintiff was fired based on an “evaluation” provided by a “harassing supervisor with a sexual
grudge,” a “rational jury might believe” that the supervisor had “waited until an opportunity
presented itself to bushwack [sic]” the plaintiff); Kotaska v. Fed. Express Corp., 966 F.3d 624,
641 (7th Cir. 2020) (Hamilton, J., dissenting) (concluding that summary judgment should have
been denied, even though the adverse action came two years after the protected activity, because
the employer’s “managers retaliated against [the plaintiff] at their very first opportunity to do so”);
see also McGuire v. City of Springfield, Ill., 280 F.3d 794, 796 (7th Cir. 2002) (ten-year gap
between protected activity and termination did not necessarily preclude an inference of causation
when, under the circumstances of the case, the termination came when a convenient, “early
opportunity” presented itself); Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 929-30 (7th Cir. 2020)
(“Employers long ago ‘taught their supervisory employees not to put discriminatory beliefs or
attitudes into words oral or written.’”) (quoting Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736
(7th Cir. 1994)).
Turning to the facts of this case, while there is some evidence that plaintiff and Dr.
Amarantos had certain disagreements over the direction of the residency program prior to 2017,
there is also evidence that, until plaintiff filed this lawsuit, they generally “got along,” and they
could resolve for themselves any disputes that arose between them to keep the program running
smoothly (Pl.’s LR 56.1 Resp. ¶¶ 13-14). According to plaintiff, after plaintiff filed this lawsuit,
Dr. Amarantos angrily shouted in a meeting with their superiors that he “want[ed] something
fucking done about it,” and Dr. Amarantos was increasingly hostile thereafter. A reasonable juror
could find that the increasing hostility impeded the smooth direction of the residency program,
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which caused Dr. McNulty to become frustrated with plaintiff and Dr. Amarantos, and to feel that
“one or both” of them “needed to go.” (McNulty Dep. at 112:2-15.) Dr. McNulty testified that he
decided to terminate plaintiff after hearing that he had angrily confronted the residents who had
provided feedback about his direction of the program; but plaintiff denies that he behaved in an
angry or threatening manner with these residents, and he says that upon terminating him, Dr.
McNulty told him, “you made up my mind for me,” although Dr. McNulty had never really listened
to plaintiff’s “side of the story.” (Pl.’s Ex. 8, Lawton Dep. at 417:18-418:8.) Both Dr. Gluck and
Dr. Kelly suggested that, in effecting plaintiff’s termination so hastily, without any sort of hearing
or fuller investigation into the incident or incidents that precipitated it, SCH departed from its
normal practices. (Def.’s LR 56.1 Resp. ¶¶ 38, 40.)
Based on that evidence, a reasonable juror could conclude that plaintiff and Dr.
Amarantos’s problems getting along did not predate the filing of this suit and instead stemmed
from it. Further, a reasonable juror could find that Dr. Amarantos, if he did not outright ask for
plaintiff to be fired, put SCH in a him-or-me situation by refusing to collaborate or cooperate with
him in directing the residency program, until, fed up, SCH seized on a pretext for terminating
plaintiff that happened to present itself. The asserted reason for terminating plaintiff—the August
2017 confrontations with the residents who had given feedback about him—was sufficiently
“fishy” to permit an inference that it was a pretext because there is evidence in Dr. Gluck and Dr.
Kelly’s testimony that SCH departed from its normal procedures by failing to investigate the
incidents more thoroughly. Moreover, it appears that Dr. McNulty made the decision based on his
own subjective belief that plaintiff’s conduct was so unacceptable as to amount to a firable offense,
without resort to a source of objective standards.
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In light of all the relevant facts and circumstances, a reasonable juror could conclude in
this case, like in Eversole, 804 F. Supp. 2d at 935, that defendant seized on the first plausible
pretext for terminating plaintiff following Dr. Amarantos’s angry outburst that he wanted
“something fucking done” about plaintiff and this lawsuit. Cf. Roy v. Correct Care Sols., LLC, 914
F.3d 52, 71 (1st Cir. 2019) (“A third party’s retaliatory or discriminatory animus can cause an
employer’s adverse action where, as a jury might find here, the employer knew that animus
motivated the third-party’s actions or demands and simply accepted those actions or demands.”);
Pettis v. Alexander Graphics, Ltd., 52 F. Supp. 2d 950, 954 (S.D. Ind. 1999) (Hamilton, J.) (when
conduct leading to plaintiff’s dismissal was provoked by another employee who treated him in a
discriminatory manner, “a jury could reasonably conclude that [the employer’s] asserted reason
for [the plaintiff’s] termination was a convenient and plausible excuse”). A reasonable factfinder
who credited plaintiff’s evidence and drew inferences from it favorable to plaintiff could conclude
that defendant’s decision to terminate plaintiff was “a disingenuous overreaction to justify
dismissal of an annoying employee who asserted his rights under the ADA.” Miller v. Illinois Dep't
of Transp., 643 F.3d 190, 200 (7th Cir. 2011); see Pickett v. Sheridan Health Care Ctr., 610 F.3d
434, 442 (7th Cir. 2010) (upholding jury verdict on retaliation claim because jury could reasonably
infer that the employer was “fed up” with the plaintiff for “impermissible reasons” because she
had engaged in protected activity and was “waiting for an excuse to get rid of her,” and the
evidence left room for doubt about whether the employer’s proffered reason for its decision was
sufficiently egregious to warrant “automatic termination”); see also Sayger v. Riceland Foods,
Inc., 735 F.3d 1025, 1032-33 (8th Cir. 2013) (“[T]he evidence shows that [the employer] viewed
the complaints about [a discriminating employee] as a greater problem than his own behavior . . .
[which] permit[ed] an inference that the company simply viewed those who complained as
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“troublemakers.”). A reasonable jury could return a verdict for plaintiff in this case, so defendant’s
motion for summary judgment is denied.
Plaintiff has moved to strike certain of the facts in defendant’s Local Rule 56.1 statement
of additional facts, but the Court need not address his arguments because, even considering all of
the evidence defendant has adduced, plaintiff’s claim still survives defendant’s motion for
summary judgment. Additionally, in their Local Rule 56.1 responses, the parties raise certain
objections to the other’s facts, but the Court disregards inadmissible or improper statements as a
matter of course, which will have no effect on the ruling in any case, so it need not address these
objections individually.
CONCLUSION
Defendant Swedish Covenant Hospital’s motion for summary judgment [119] is denied.
Plaintiff’s motion to strike [152] is denied as moot. A status hearing is set for March 17, 2021. The
parties shall confer regarding the possibility of settlement and the scheduling of next steps, and
they shall file a joint status report by March 12, 2021.
SO ORDERED.
ENTERED: February 10, 2021
______________________
HON. JORGE ALONSO
United States District Judge
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