Safrithis v. Shulkin

Filing 38

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 9/25/2018. Before the Court is Defendant's motion for summary judgment 18 . For the reasons set forth below, the motion 18 is granted in part and denied in part. The case is set for further status on October 9, 2018 at 9:00 a.m.Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AUDRIE SAFRITHIS,
Plaintiff,
v.
DAVID J. SHULKIN,
Defendant.

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Case No. 17-cv-2067
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s motion for summary judgment [18]. For the reasons set
forth below, the motion [18] is granted in part and denied in part. The case is set for further status
on October 9, 2018 at 9:00 a.m.
I.

Background
On June 30, 2013, Plaintiff Audrie Safrithis was appointed as a Certified Registered Nurse

Anesthetist (“CRNA”) at the Jesse Brown VA Medical Center in Chicago. [26 (Resp. Def.’s Stmt.
of Facts), at ¶ 1.] Plaintiff’s position was subject to a two-year probationary period. [Id.] While
Plaintiff worked at Veterans Affairs (the “VA” or “Defendant”), Dr. Ronald Albrecht was the chief
of the anesthesiology unit and he was in charge of the department. [Id. at ¶ 2.] CRNAs at the VA
were assigned to provide anesthesia services to patients during surgical procedures. [Id. at ¶ 3.]
CRNAs are required to stay at the patient’s bedside during the entire surgical procedure to monitor
the patient in case anesthesia care is required and to ensure that the patient wakes comfortably and
is able to breathe on his or her own. [Id.] CRNAs may not leave a patient’s bedside whenever
they want a break; rather, they first must find an available anesthesia attending physician, resident,

or CRNA who can take over the procedure. [Id.] Besides CRNAs, the anesthesiology department
at the VA also included attending physicians and residents. [Id. at ¶ 5.] Residents performed
essentially the same duties that the CRNAs performed. [Id.] Attending physicians supervised the
CRNA or resident assigned to each patient. [Id.]
In or around February 2014, Plaintiff discovered that she was pregnant. [Id. at ¶ 6.]
Plaintiff had a high-risk pregnancy due to her age, and her pregnancy was complicated by
pregnancy-induced hypertension, of which she informed her first level supervisor at the time, Dr.
Syed Raza. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 1.]1 When Plaintiff asked Dr. Albrecht if she
could work offsite less frequently during her pregnancy, Dr. Albrecht denied her request and told
her that she should “be able to do everything like everybody else.” [Id.] Plaintiff went on
maternity leave on or about September 15, 2014. [26 (Resp. Def.’s Stmt. of Facts), at ¶ 6.] She
gave birth on September 18, 2014, and she returned to work on January 12, 2015. [Id. at ¶¶ 6-7.]
Before Plaintiff went on maternity leave, she was given “high satisfactory” ratings in all categories
of her proficiency report, which was signed by Dr. Albrecht and Dr. Raza, and described her as
“very conscientious,” “competent,” and as giving “number one priority” to her patients. [32 (Resp.
Pl.’s Stmt. of Facts), at ¶ 2.]
A.

Plaintiff’s Pumping and the March 24, 2015 Incident

When Plaintiff returned to work, she planned to take breaks to pump breast milk to feed
her baby. [Id. at ¶ 3.] Plaintiff aimed to pump approximately every two hours. [Id.] At the time
she returned to work, Plaintiff was able to pump either in the CRNA office or in the locker room
downstairs from the anesthesia department. [26 (Resp. Def.’s Stmt. of Facts), at ¶ 8.] Although

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Defendant admitted that Plaintiff testified to this fact. Because the Court credits Plaintiff’s testimony on
Defendant’s motion for summary judgment, Defendant effectively has admitted this fact and any other facts
to which Defendant admits that Plaintiff’s testimony supports.

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both locations had locked doors, neither location had a sink. [Id.] A dedicated lactation room also
was available, but it was located in another building on the VA campus. [Id.] Plaintiff found that
the lactation room was too far from the anesthesia department. [Id.] In April of 2015, the VA
opened a new lactation room in Plaintiff’s building. [Id.] Plaintiff was paid for the time she spent
pumping breast milk on breaks. [Id. at ¶ 9.]
Plaintiff claims that when she returned to work, she was harassed and discriminated against
based on her status as a breastfeeding female. On January 12, 2015, Plaintiff’s first day back from
maternity leave, Plaintiff requested a break to go pump when Dr. Phil Espaldon told her she could
go because she had “not done anything all day.” [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 5.] CRNA
Robert Kloth testified that he believed that Plaintiff’s pumping in the afternoon was an
inconvenient time for attending anesthesiologists and that some (but not all) of the attendings were
frustrated about it. [Id. at ¶ 33.] He also testified that there was animosity between Plaintiff and
Drs. Angelov and Fox. [Id.] Indeed, Plaintiff testified that Dr. Fox would ask Plaintiff how she
could be reached while pumping, told Plaintiff to alert the group when she was going to pump, and
pounded on the door while Plaintiff was pumping asking Plaintiff what she was doing, what she
had been doing, and whether she had to pump at that time. [Id. at ¶ 7.]2
On March 24, 2015, Plaintiff wrote Dr. Albrecht a letter complaining that she believed she
was being harassed by Dr. Fox, an attending physician. [26 (Resp. Def.’s Stmt. of Facts), at ¶ 10.]
In the letter, Plaintiff complained of an incident that occurred on March 23, 2015. [Id. at ¶ 11.]
According to the letter, Dr. Fox approached Plaintiff and asked her to give another CRNA a break.
[Id.] Plaintiff reports that she explained to Dr. Fox that she needed to pump. [Id.] When she
finished pumping approximately 30 minutes later, the other CRNA no longer needed a break. [Id.]
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Defendant disputes that Dr. Fox was pounding on the door, but that fact is supported by Plaintiff’s
deposition testimony, which the Court credits for the purposes of this summary judgment motion.

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But Plaintiff still felt like Dr. Fox was watching her to see if she would relieve the other CRNA.
[Id.] In the letter, Plaintiff reported to Dr. Albrecht that she felt she was being singled out and
harassed by Dr. Fox and that Dr. Fox should have asked someone else to give the CRNA a break.
[Id. at ¶ 12.] Plaintiff reported that she believed she was being harassed because she was taking
breaks to pump breast milk. [Id.] She also reported that she had heard from another staff member
that Dr. Fox had told staff members that Plaintiff had been “doing nothing for the past hour.” [Id.]
In response to Plaintiff’s letter, Dr. Albrecht met individually with Plaintiff and with Dr. Fox. [Id.
at ¶ 13.] But Plaintiff testified that nothing happened in response to her complaint.3 [20-2
(Safrithis Dep.), at 89:2-4.]
B.

March 30, 2015 Incident

The code-blue pager is a notification device that should alarm if a patient goes into cardiac
and/or respiratory arrest anywhere in the hospital. [26 (Resp. Def.’s Stmt. of Facts), at ¶ 19.]
When a code blue is announced, one representative from the anesthesiology group would be
responsible for immediately responding, along with representatives from each of several other
hospital departments. [Id.] The representative from the anesthesiology group is responsible for
opening the arrested patient’s airway. [Id.] A code blue is announced over both the code-blue
pagers and the overhead intercom system in order to reduce the risk of a technological failure. Id.
at ¶ 20. The individual responsible for the code-blue pager must immediately respond to a code
blue whether it is announced over the pager, over the intercom, or both. [Id. at ¶ 21.] When the

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Defendant objects to Plaintiff’s assertion that nothing came of Plaintiff’s complaint, citing to an email
from Dr. Albrecht attempting to setup a team meeting to “improve communication and bolster department
relationships.” [20-2 (Def.’s Ex. 12), at 85.] It is not clear from the email that the meeting was being setup
to address Plaintiff’s complaint. Furthermore, Plaintiff informed Dr. Albrecht that she could only attend
the meeting on her day off if she was permitted to bring her child, which she was not. [20-2 (Safrithis
Dep.), at 89:5-22.] The meeting was not rescheduled to allow Plaintiff to attend. [32 (Resp. Pl.’s Stmt. of
Facts), at ¶ 18.] Thus, even assuming the meeting was setup to address Plaintiff’s complaint, a jury could
conclude that a meeting excluding Plaintiff was insufficient to address Plaintiff’s complaint.

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individual responsible for the code-blue pager ends her tour of duty or otherwise cannot perform
emergency code-blue duties, she is required to physically hand the code-blue pager to another staff
member, so it always is clear who is responsible for responding to a code blue. [Id. at ¶ 22.]
On March 30, 2015, Dr. Felix Angelov instructed resident Dr. Alexandra Baracan to give
the hospital’s code-blue pager to Plaintiff after stating there was an emergency in GI.4 [32 (Resp.
Pl.’s Stmt. of Facts), at ¶ 5.] At some point later, Plaintiff called Dr. Angelov at a technician’s
instruction, and Dr. Angelov asked Plaintiff to see a patient. [Id. at ¶ 12.] While on the phone,
Plaintiff heard Dr. Kahn (the doctor performing the operation) saying “we’re done, we’re done,”
and Dr. Angelov say they were coming “up,” which indicated to Plaintiff that they would be back
to the anesthesiology department within five or ten minutes. [Id.] After Plaintiff saw a patient for
five or ten minutes, she came back to the anesthesiology department and took some notes. [Id. at
¶ 13.] At that point, Plaintiff could no longer wait to pump, so she changed her clothes and put
the code-blue pager in the anesthesia resident’s room. [Id. at ¶¶ 13-14.] Plaintiff testified that she
ran into Dr. Angelov in the hallway on her way to pump about 30 seconds later and told him where
she left the pager and updated him on the status of the patient. [Id. at ¶ 14.] Plaintiff also testified
that she was not “trying to find” Dr. Angelov because she believed he was coming right back. [Id.]
Dr. Baracan then ran to the residents’ room to get there as fast as possible to pick up the pager.
[26 (Resp. Def.’s Stmt. of Facts), at ¶ 28.] Dr. Baracan found the pager completely unattended on
the desk. Id. Plaintiff finished pumping at approximately 5:00 or 5:30 p.m. [Id. at ¶ 30.] Plaintiff
says that she went home when she was done pumping because it was the end of her tour of duty.
[Id.]

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The Court infers that “GI” refers to the Gastroenterology Department. However, “GI” is not defined or
otherwise identified in Plaintiff’s Statement of Additional Facts. Where the emergency was occurring,
however, has no bearing on the legal issues before the Court on Defendant’s motion for summary judgment.

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A day or so later, Plaintiff told Dr. Angelov that she did not know that it was improper to
leave the code pager on the resident’s desk because she had seen it left there before. [32 (Resp.
Pl.’s Stmt. of Facts), at ¶ 15.] Dr. Angelov told Plaintiff that he was not going to write up the
incident. [Id.] Plaintiff notified Dr. Raza about the incident soon after, and Plaintiff was never
responsible for the code-blue pager again. [Id.] Prior to March 2015, Plaintiff had never assumed
responsibility of the code-blue pager before at any of her places of employment, nor had she ever
been involved in a code-blue announcement. [Id. at ¶ 24.] During Plaintiff’s employment
interview, Dr. Albrecht told her “that’s what residents are here for,” when Plaintiff inquired about
the code-blue pager responsibility. [Id.] Plaintiff did not receive training on how to use the codeblue pager because when a code blue is announced via the pager (and overhead) the location of the
code blue also is announced. [Id.]
C.

May 19, 2015 and June 9, 2015 Incidents

On May 15, 2015, Dr. Albrecht sent an email to the anesthesiology group—including
Plaintiff—regarding phones that had been provided to all anesthesiology staff. [26 (Resp. Def.’s
Stmt. of Facts), at ¶ 15.] Dr. Albrecht stated that it was his expectation that all attending
physicians, CRNAs, and techs would have these phones active and on their person during their
tours of duty. [Id.] A week or two after the phones were distributed in May 2015, Plaintiff
informed Drs. Raza, Angelov, Albrecht and Timothy VadeBoncouer that she would not bring her
phone with her while she was pumping because it was a stressor that prevented her from expressing
milk. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 19.]
On May 19, 2015, two physicians attempted to contact Plaintiff on her work phone during
her tour of duty, but they were unable to reach her because she was pumping. [26 (Resp. Def.’s
Stmt. of Facts), at ¶ 16.] Dr. Albrecht found Plaintiff’s phone on the desk in the empty CRNA

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office.5 [Id.] In an email the next day, Dr. Albrecht instructed Plaintiff to carry her work phone
during her tour of duty. [Id.] After this email, Plaintiff told Dr. Albrecht that she would not carry
her phone with her when she went to pump because the interruptions negatively impact her ability
to express milk. [Id.]
On June 9, 2015, Plaintiff again did not answer her work phone when an attending
physician tried to reach her during her tour of duty because she was not carrying her work phone
while she was pumping. [Id. at ¶ 17.] The attending physician then texted Plaintiff on her personal
phone. [Id.] As a result of this text, Plaintiff had difficulty expressing milk and had to stop
pumping. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 20.] Plaintiff claims that she carried her personal
phone with her so that she could be cognizant of what time it was in order to be sure she was not
away for too long. [Id.] As a result of this incident, Plaintiff wrote Dr. Albrecht an email indicating
that she believed she was being harassed while nursing and that the harassment was causing her
stress. [See 20-2 (Def.’s Ex. 15), at 92-93.] Dr. Albrecht again instructed Plaintiff by email that
she was expected to carry her phone during her tour of duty [26 (Resp. Def.’s Stmt. of Facts), at
¶ 18], but he also instructed Plaintiff that she did not need to answer the phone while she was on
an approved break. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 19.] After that email, Plaintiff again told
Dr. Albrecht that she would not carry her work phone when she went to pump. [26 (Resp. Def.’s
Stmt. of Facts), at ¶ 18.]
C.

Summary Review Board

On June 12, 2015, there are at least a couple emails between Dr. Albrecht, Dr. Angelov,
and others discussing the March 30, 2015 incident. [20-2 (Def.’s Exs. 16 and 17), at 94-97.] On
June 15, 2015, Dr. Albrecht requested that a summary review board be convened to review
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Plaintiff does not admit or deny this assertion. Because Plaintiff has not identified any contrary evidence
or challenged Defendant’s evidentiary support, the Court deems the fact admitted.

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Plaintiff’s conduct. [26 (Resp. Def.’s Stmt. of Facts), at ¶ 32.] Dr. Albrecht reported three
incidents of potential misconduct. [Id.] First, Dr. Albrecht reported that Plaintiff had repeatedly
refused to carry her work phone while she was on break. [Id.] Second, Dr. Albrecht reported that
on March 30, 2015, Plaintiff had abandoned the code-blue pager in the residents’ room and left
the anesthesiology department in street clothes prior to the end of her tour of duty.6 [Id.] Third,
Dr. Albrecht reported the disagreement between Plaintiff and Dr. Fox regarding whether Plaintiff
should be required to take over for another CRNA to give him a break. [Id.] Although Dr. Albrecht
identified multiple incidents of potential misconduct, he testified that that the issue raised to the
Summary Review Board was “limited to this particular episode” regarding the blue code pager,
which occurred on March 30, 2015. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 22.] That same month,
after the summary review board was requested, Dr. Angelov told Plaintiff “we just want to get rid
of you” and “we don’t want you here anymore.” [Id. at ¶ 23.]7
On June 16, 2015, Dr. Jeffrey Ryan, the chair of the summary review board, sent Plaintiff
a letter informing her of the summary review board and the allegations against her. [26 (Resp.
Def.’s Stmt. of Facts), at ¶ 33.] The letter identified four alleged deficiencies in conduct on the
part of Plaintiff: (1) the failure to properly hand-off a “code-blue” pager on or about March 30,
2015 (“Charge A”), (2) the failure to follow established leave procedures by leaving before
Plaintiff’s tour of duty ended on March 30, 2015 and June 2, 2015 (“Charge B”), (3) inappropriate
conduct for failing to relieve another employee on March 23, 2015 (“Charge C”), and (4) failure

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Dr. Albrecht accused Plaintiff of leaving at 3:37 p.m. on June 2, 2015 and leaving at approximately 4:45
on March 30, 2015. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 27.] Although Plaintiff has identified evidence
indicating that she did not leave as early as she was accused of leaving, [id.], Plaintiff has not shown that
Dr. Albrecht was aware of such evidence. Furthermore, Defendant has cited to reports that Plaintiff did
leave before 5:30 p.m. on those days. [See, e.g., 32-2, at 28.]
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Defendant disputes this fact. Because Plaintiff’s deposition testimony supports the fact, however, the
Court accepts it as true for purposes of considering Defendant’s summary judgment motion.

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to follow instructions by failing to carry her phone at all times in order to promote better
communication on May 15, 2015 and June 9, 2015 (“Charge D”). [20-2 (Def.’s Ex. 20), at 12526.]
The summary review board was made up of Dr. Jeffrey Ryan (chairperson), health systems
specialist Mark Weisenberger (secretary), nurse Lenne Robles, and CRNA Andy Tracy. [26
(Resp. Def.’s Stmt. of Facts), at ¶ 34.] Plaintiff did not know any of these individuals before the
Summary Review Board. [Id.] Plaintiff submitted a written statement regarding her conduct. [Id.
at ¶ 33.] Dr. Albrecht was brought before the members of the Summary Review Board “to provide
any additional information that may not [have been] included in the evidence file.” [20-2 (Def.’s
Ex. 22), at 147.] At that time, Dr. Albrecht stated that his real concern with Plaintiff’s performance
was the patient safety issue relating to Charge A, the only charge sustained. [Id. at 147, 149.]
The summary review board sustained the allegation that Plaintiff had failed to properly
hand off the code-blue pager (Charge A) but found that the remaining charges were not sustained.
[Id. at 149.] Still, the Summary Review Board believed that Plaintiff’s failure to properly hand
off the code-blue pager resulted in a risk to the health and safety of patients that was of sufficient
gravity to warrant Plaintiff’s separation from the VA. [Id.] The Summary Review Board members
voted unanimously for a separation. [Id.] Plaintiff disputes the Summary Review Board’s
conclusions. [26 (Resp. Def.’s Stmt. of Facts), at ¶ 36.] Dr. Ryan, the chairperson of the summary
review board, did not know that Plaintiff had engaged in any protected activity prior to the
summary review board hearing. [Id. at ¶ 37.] Dr. Ryan denies that the summary review board
took any action to discriminate against Plaintiff on the basis of her sex or in retaliation for prior
protected activity. [Id.]

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By letter dated June 25, 2015, Plaintiff was informed of the summary review board’s
recommendation, and was told that she would be separated from service at the VA as of June 26,
2015. [Id. at ¶ 38.] Plaintiff was given the option to resign in lieu of termination, and she resigned
her position on June 25, 2015. [Id. at ¶ 39.] Plaintiff resigned because she feared that a termination
would affect future job prospects. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 31.] Dr. Albrecht instructed
Plaintiff to write “for personal reasons” on her resignation letter. [Id.]
II.

Legal Standard
Summary judgment is appropriate “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). A genuine dispute as to any 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). In determining summary judgment motions, “facts must be viewed in the light
most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott
v. Harris, 550 U.S. 372, 380 (2007). The party seeking summary judgment has the burden of
establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
Summary judgment is proper where “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.” Gibbs
v. Lomas, 755 F.3d 529, 536 (7th Cir. 2014) (quoting Jewett v. Anders, 521 F.3d 818, 821 (7th Cir.
2008)). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). “The court need consider only the cited materials, but it may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3). With each motion for summary judgment filed pursuant to
Rule 56 “the moving party shall serve and file—(1) any affidavits and other materials referred to
in Fed. R. Civ. P. 56(e); (2) a supporting memorandum of law; and (3) a statement of material facts
as to which the moving party contends there is no genuine issue and that entitle the moving party
to a judgment as a matter of law[.]” LR 56.1 (N.D. Ill.). The statement of material facts “shall
consist of short numbered paragraphs, including within each paragraph specific references to the
affidavits, parts of the record, and other supporting materials relied upon to support the facts set
forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the
motion.” Id.
“Once a party has made a properly-supported motion for summary judgment, the opposing
party may not simply rest upon the pleadings but must instead submit evidentiary materials that
‘set forth specific facts showing that there is a genuine issue for trial.’” Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (quoting Fed. R. Civ. P. 56(e)); see also
Anderson, 477 U.S. at 250. A genuine issue of material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
party seeking summary judgment has the burden of establishing the lack of any genuine issue of
material fact. See Celotex Corp., 477 U.S. at 323. In evaluating a motion for summary judgment,
the Court will construe all facts in the light most favorable to the nonmoving party and draw all

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reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827 F.3d 699, 704 (7th Cir.
2016).
III.

Analysis
A.

Fair Labor Standards Act Claim

Plaintiff claims that Defendant violated Section 207(r) of the Fair Labor Standards Act
(“FLSA), 29 U.S.C. § 201 et seq., by interfering with her ability to take breaks in order to express
breast milk. Section 207 of the FLSA requires employers to provide “(A) a reasonable break time
for an employee to express breast milk for her nursing child for 1 year after the child’s birth each
time such employee has need to express the milk; and (B) a place, other than a bathroom, that is
shielded from view and free from intrusion from coworkers and the public, which may be used by
an employee to express breast milk.” 29 U.S.C.A. § 207(r)(1).
Defendant argues that, even assuming that Plaintiff can prove that Defendant violated
Section 207, Defendant is entitled to summary judgment on Plaintiff’s FLSA claim because she
cannot show that she lost wages due to an inadequate space for lactation or being denied the ability
to take lactation breaks. Section 216(b) of the FLSA establishes the mechanism for private
enforcement of Section 207, but it limits a plaintiff’s recovery to unpaid wages and overtime.
29 U.S.C. § 216(b). Thus, a plaintiff bringing an FLSA claim under Section 207(r) may only
recover “lost wages and overtime, liquidated damages, attorneys’ fees, and costs that result from
the employer’s failure to provide an adequate space for lactation.” Tolene v. T-Mobile, USA, Inc.,
178 F. Supp. 3d 674, 680 (N.D. Ill. 2016).
Plaintiff effectively concedes that she cannot establish such damages and that she has no
remedy under Section 207(r) of the FLSA, but argues that the Court nonetheless should allow her
to proceed with her claims because damages are not a requisite element of her FLSA claim.

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Plaintiff does not, however, cite any case in support of this proposition. In fact, the courts that
have addressed the issue have concluded that a plaintiff cannot proceed with a claim under the
FLSA without alleging recoverable damages. See Tolene, 178 F. Supp. 3d at 680 (granting
summary judgment); Hicks v. Tuscaloosa, 2015 WL 6123209, at *29 (N.D. Ala. Oct. 19, 2015)
(same); Salz v. Casey’s Marketing Co., 2012 WL 2952998, at *3 (N.D. Iowa July 19, 2012)
(granting motion to dismiss).
Furthermore, as Defendant notes, Plaintiff essentially is asking that the Court allow
Plaintiff to proceed to trial on her FLSA claim knowing that Plaintiff will not be able to obtain any
relief—a position untenable with Article III’s standing requirements. See Ewell v. Toney, 853 F.3d
911, 917 (7th Cir. 2017) (“Without a redressable injury, [plaintiff] lacks Article III standing to
press this claim.” (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62 (1992)).
Accordingly, the Court grants summary judgment in favor of Defendant on Plaintiff’s FLSA claim.
B.

Title VII Claims
i.

Exhaustion Requirement

Defendant argues that to the extent Plaintiff seeks to bring Title VII claims based on
claimed harassment for taking lactation breaks, Plaintiff’s claims are barred because Plaintiff failed
to exhaust her administrative remedies. “Generally, a plaintiff may not bring claims under Title
VII that were not originally included in the charges made to the EEOC.” Sitar v. Ind. Dep’t of
Transp., 344 F.3d 720, 726 (7th Cir. 2003) (citations omitted). “The purpose of the requirement
of filing a charge before the EEOC is twofold. First, it serves to notify the charged party of the
alleged violation. Second, it gives the EEOC an opportunity for conciliation, which effectuates
Title VII’s primary goal of securing voluntary compliance with its mandates.” Schnellbaecher, et
al. v. Baskin Clothing Co., et al., 887 F.2d 124, 126 (7th Cir. 1989) (citation omitted). In order to

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determine whether claims fall within the scope of earlier charges, the Court first considers
“whether the allegations are like or reasonably related to those contained in the EEOC complaint.”
Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005). Second, if they are, the Court asks, “whether
the current claim reasonably could have developed from the EEOC’s investigation of the charges
before it.” Id. (citing Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 502 (7th Cir. 1994)).
The standard for whether charges are reasonably related is “liberal.” Teal v. Potter, 559 F.3d 687,
692 (7th Cir. 2009). Whether Plaintiff’s discharge claims are within the scope of her EEOC charge
is a question of law. Conner v. Ill. Dep’t of Natural Res., 413 F.3d 675, 680 (7th Cir. 2005).
First, the Court must consider whether Plaintiff’s harassment allegations “are like or
reasonably related to those contained in the EEOC complaint.” Ezell, 400 F.3d at 1046. “[T]o be
like or reasonably related to an administrative charge, the relevant claim and the administrative
charge must, at minimum describe the same conduct and implicate the same individuals.”
Reynolds v. Tangherlini, 737 F.3d 1093, 1100 (7th Cir. 2013) (internal quotations omitted). In her
EEOC charge, Plaintiff indicated that she sought to bring a sex discrimination claim and a
retaliation claim relating to an occurrence on June 26, 2015—presumable referring to the day she
resigned.8 [20-2 (Def.’s Ex. 26), at 161.] Plaintiff’s EEOC charge indicated that she believed she
was constructively discharged “because of her gender (female)” and “in retaliation for opposing
discrimination.” [Id.] However, Plaintiff’s EEOC charge does not include any factual details
regarding any alleged harassment occurring before her discharge. The Seventh Circuit has noted
that “the requirement of some specificity in a charge is not a ‘mere technicality.’” Rush v.
McDonald’s Corp., 966 F.2d 1104, 1111 (7th Cir. 1992). Thus, the Seventh Circuit has held in

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Plaintiff resigned on June 25, 2015. [26 (Resp. Def.’s Stmt. of Facts), at ¶ 39.] Although the charge’s
reference to June 26, 2015 appears to be a mistake, the charge makes clear that Plaintiff is challenging her
resignation as a constructive discharge.

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connection with a racial harassment claim that “[s]ome detail, beyond a statement that ‘I believe I
have been discriminated against because of my race, Black’ is necessary to allow the agency to
perform its statutory duty.” Id. In connection with Plaintiff’s sexual harassment claims, Plaintiff’s
EEOC charge does not provide any more detail than that found insufficient by the Seventh Circuit
in Rush. The fact that Plaintiff was represented by counsel when she filed her EEOC charge further
supports the conclusion that Plaintiff’s charge is lacking sufficient detail to raise any sexual
harassment claim apart from her constructive discharge claim. Id. (“Any doubt we might have
that racial harassment was never brought to the attention of the EEOC is resolved in this case by
noting that here, [plaintiff] apparently was advised by her attorney even at the stage of filing her
charge with the EEOC.”). Accordingly, Defendant is granted summary judgment on Plaintiff’s
Title VII claims to the extent they relate to alleged sexual harassment independent from Plaintiff’s
alleged constructive discharge.
This conclusion is supported by the fact that Plaintiff cannot provide any explanation as to
how the limited allegations in the EEOC charge describe the same conduct and implicate the same
individuals as Plaintiff’s sexual harassment allegations. Instead, Plaintiff argues that the same
conduct and individuals were referenced during the course of the EEOC investigation. [29, at 5
(“While [Plaintiff’s] Complaint and EEO Claim involved a variety of conduct and individuals, the
same conduct and same individuals were repeatedly implicated and described in the slew of EEO
Affidavits during the EEO Investigation.”).] While Plaintiff must show that her “claim reasonably
could have developed from the [EEOC’s] investigation of the charges before it” in order to find
that the claim sufficiently was exhausted, such a showing is not sufficient. As discussed above,
this determination comes after the Court determines whether the allegations are like or reasonably

15

related to those contained in the EEOC complaint. Because Plaintiff fails to make such a showing,
the Court need not continue with the second step of the analysis.9
This does not mean that Plaintiff’s allegations of sexual harassment are irrelevant.
Defendant has not argued that Plaintiff failed sufficiently to exhaust her constructive discharge
claim. Thus, Plaintiff’s Title VII claims based on her alleged constructive discharge remain. In a
constructive discharge case, a plaintiff is “forced to resign because her working conditions, from
the standpoint of the reasonable employee, have become unbearable.” Mosher v. Dollar Tree
Stores, Inc., 240 F.3d 662, 667 (7th Cir. 2001) (citing Lindale v. Tokheim Corp., 145 F.3d 953,
955 (7th Cir. 1998)). A constructive discharge claim can be based on either (i) discriminatory
harassment or (ii) communications to the employee indicating that “the handwriting was on the
wall and the axe was about to fall[.]” E.E.O.C. v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th
Cir. 2002) (internal quotation marks and citation omitted). Thus, Plaintiff may present evidence
of harassment to the extent such harassment led to Plaintiff’s constructive discharge.10
ii.

Evidence of Discrimination and/or Retaliation

Defendant argues that Plaintiff cannot show that Defendant acted with a discriminatory or
retaliatory motive, which is a necessary requirement for her Title VII claims. Both Plaintiff and
Defendant address Plaintiff’s “direct” evidence of discrimination and retaliation separately from

9

Plaintiff cites Reynolds v. Tangherlini, 737 F.3d 1093 (7th Cir. 2013), in support of the proposition that
“[t]he scope of the administrative charge brought against an employer is determined by examining the
claims that were ‘brought to the EEOC’s attention,’ not by whether the EEOC actually considered or
disposed of a given claim. [29, at 6.] But Reynolds also makes clear that “to be like or reasonably related
to an administrative charge, the relevant claim and the administrative charge must, at minimum describe
the same conduct and implicate the same individuals.” 737 F.3d at 1100 (internal quotations omitted).
Plaintiff fails to explain how the limited allegations in the administrative charge satisfy that standard with
respect to her sexual harassment claims independent from her constructive discharge claim.

10

Because Plaintiff did not exhaust her sexual harassment claims independent from her constructive
discharge claim, the Court need not consider whether such claims also are barred as untimely.

16

Plaintiff’s “indirect” evidence of discrimination and retaliation. However, the Seventh Circuit has
made clear that “[e]vidence must be considered as a whole, rather than asking whether any
particular piece of evidence proves the case by itself—or whether just the ‘direct’ evidence does
so, or the ‘indirect’ evidence.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir.
2016). The relevant question therefore is “whether the evidence would permit a reasonable
factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor
caused the discharge or other adverse employment action.” Id.
Based on the evidence before the Court, a reasonable jury could infer that Plaintiff’s
internal complaints and status as a breastfeeding female caused Plaintiff to be constructively
discharged.11 Before Plaintiff returned from maternity leave, she was given “high satisfactory”
ratings in all categories of her proficiency report—which was signed by Dr. Albrecht and
Dr. Raza—and described as “very conscientious,” “competent,” and as giving “number one
priority” to her patients. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 2.] Even when Plaintiff returned,
she had the highest workload of all CRNA’s and handled the most complex cases. [Id.] Plaintiff
also presented evidence indicating that co-workers thought highly of her and that she maintained
her performance after returning from maternity leave. [27-7 (Pl.’s Ex. F), at ¶ 4.]
Still, Plaintiff repeatedly complained that she believed she was being harassed because of
her pumping. Days after Plaintiff’s complaint regarding the June 9, 2015 incident, Dr. Albrecht,

11

Defendant does not contest Plaintiff’s claim that her status as a breastfeeding female is a protected
classification. The circuit courts that have addressed the issue have concluded that breastfeeding is a
medical condition related to pregnancy that is protected under the Pregnancy Discrimination Act, which
amended Title VII. E.E.O.C. v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013)(“Lactation is
the physiological process of secreting milk from mammary glands and is directly caused by hormonal
changes associated with pregnancy and childbirth.”); Hicks v. City of Tuscaloosa, Alabama, 870 F.3d 1253,
1260 (11th Cir. 2017) (“Taking adverse actions based on woman’s breastfeeding is prohibited by the PDA
but employers are not required to give special accommodations to breastfeeding mothers.”). Because
Defendant has not raised this argument, Court declines to address what appears to be a matter of first
impression in this circuit.

17

Dr. Angelov, and others appeared to be collecting information regarding the March 30, 2015
incident. Days after that, Dr. Albrecht requested that the Summary Review Board be convened to
review Plaintiff’s conduct. That same month, after the Summary Review Board was requested,
Dr. Angelov told Plaintiff “we just want to get rid of you” and “we don’t want you here anymore.”
Given all of the evidence before the Court, a reasonable jury could conclude that
Dr. Albrecht’s initiation of the Summary Review Board—which ultimately resulted in Plaintiff’s
constructive discharge—was motivated by a discriminatory animus. Dr. Albrecht testified that the
issue raised to the Summary Review Board was “limited to this particular episode” regarding the
blue code pager, which occurred on March 30, 2015. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 22.]
Dr. Albrecht also testified that Plaintiff’s abandonment of the code-blue pager on March 25, 2015
“consisted grounds for a special PSB to review the dereliction” and that he approached the chief
of staff who then convened one. [20-2 (Def.’s Ex. 29), at 173.]
While this explanation may seem plausible on its face, it is undermined by the fact that
Dr. Albrecht waited until June 15, 2015 to request that the Summary Review Board be convened.
[26 (Resp. Def.’s Stmt. of Facts), at ¶ 32.] It is further undermined by the fact that the documents
for credentialing Plaintiff for re-appointment were signed by Dr. Albrecht and Dr. Raza in May of
2015. [32 (Resp. Pl.’s Stmt. of Facts), at ¶ 32.] If the incident with code-blue pager was as serious
as Defendant now contends, the Court would expect that Dr. Albrecht would have requested that
the Summary Review Board convene immediately after the incident, not months later.
Viewing this evidence in the light most favorable to Plaintiff, a reasonable jury could find
that Dr. Albrecht’s justification for requesting to convene the Summary Review Board was
pretextual. See, e.g., Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011) (“The
Civil Rights Act of 1964 does not require employers to have ‘just cause’ for sacking a worker, but

18

an employer who advances a fishy reason takes the risk that disbelief of the reason will support an
inference that it is a pretext for discrimination.” (citation omitted)); Stalter v. Wal-Mart Stores,
Inc., 195 F.3d 285, 290 (7th Cir. 1999) (employee’s firing for “theft” because he took a few potato
chips from a co-worker’s open bag in the break room where the co-worker did not object to the
taking, defied “any common understanding of the term” and so lacked credibility). Furthermore,
the fact that Dr. Albrecht requested that the Summary Review Board convene less than a week
after Plaintiff complained about the June 9, 2015 incident further supports a finding of animus.
Lang v. Ill. Dep’t of Children & Family Servs., 361 F.3d 416, 419 (7th Cir. 2004) (“Close temporal
proximity provides evidence of causation, and may permit a plaintiff to survive summary judgment
provided that there is also other evidence that supports the inference of a causal link.” (internal
citations omitted)); see also Magyar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 772 (7th Cir.
2008) (“This court has found a month short enough to reinforce an inference of retaliation.” (citing
Lang, 361 F.3d at 419)). Plaintiff therefore has presented sufficient evidence for a reasonable jury
to conclude that Dr. Albrecht acted with improper animus. Because Dr. Albrecht was not the
ultimate decision-maker, however, the Court must consider whether any animus held by
Dr. Albrecht can be attributed to the ultimate decision makers (i.e., the members of the Summary
Review Board) under a cat’s paw theory.
iii.

Cat’s Paw Theory

Plaintiff argues that a jury could conclude that, even if the Summary Review Board was
the ultimate decision-maker and even if the members of the Summary Review Board lacked a
retaliatory motive, Dr. Albrecht’s animus was imputed to the Summary Review Board by way of
the cat’s paw theory. That theory applies when a biased party “who lacks decision-making power
uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory

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employment action.” Woods v. City of Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). “To survive
summary judgment on such a theory, the plaintiff must provide ‘evidence that the biased
subordinate actually harbored discriminatory animus against the victim of the subject employment
action, and evidence that the biased subordinate’s scheme was the proximate cause of the adverse
employment action.’” Milligan-Ramstad v. Stanley, 877 F.3d 705, 711 (7th Cir. 2017) (quoting
Johnson v. Koppers, Inc., 726 F.3d 910, 914 (7th Cir. 2013)). As discussed above, Plaintiff has
identified sufficient evidence for a reasonable jury to conclude that Dr. Albrecht harbored
discriminatory animus towards Plaintiff. The key question therefore is whether Plaintiff has
identified sufficient evidence for a reasonable jury to find that Dr. Albrecht’ action was “a causal
factor of the ultimate employment action” under the traditional tort-law concept of proximate
cause. Staub v. Proctor Hosp., 562 U.S. 411, 420 (2011) (citations omitted).
An unbiased decision maker can break the casual chain. Roberts v. Columbia Coll.
Chicago, 821 F.3d 855, 866 (7th Cir. 2016) (affirming summary judgment of discrimination claim
where the decision maker conducted independent investigation of alleged plagiarism, making
subordinate’s alleged animus “too remote” to support liability under a cat’s paw theory); Grant v.
Trustees of Indiana Univ., 870 F.3d 562, 569 (7th Cir. 2017), reh’g and suggestion for reh’g en
banc denied (Sept. 28, 2017) (affirming summary judgment on Title VII claims based on the cat’s
paw theory where plaintiff failed to show that person with animus had any input or influence over
the decision maker after submitting the case to the decision maker); see also Young v. Dillon
Companies, Inc., 468 F.3d 1243, 1253 (10th Cir. 2006) (“[W]e have held that an unbiased
supervisor can break the causal chain by conducting an ‘independent investigation’ of the
allegations against an employee.”). But if the independent investigation relies on facts provided
by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer

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(either directly or through the ultimate decisionmaker) will have effectively delegated the
factfinding portion of the investigation to the biased supervisor. Staub v. Proctor Hosp., 562 U.S.
411, 421 (2011); see also Miller v. Polaris Labs., LLC, 797 F.3d 486, 490 (7th Cir. 2015) (“An
employer is liable under Title VII or Section 1981 when ‘a non-decision-making employee with
discriminatory animus provided factual information or input that may have affected the adverse
employment action.’” (quoting Matthews v. Waukesha Cty., 759 F.3d 821, 829 (7th Cir. 2014))).
Plaintiff argues that because the Summary Review Board’s review of Plaintiff’s conduct
was initiated and based on Dr. Albrecht’s input, she may proceed under a cat’s paw theory. The
Court agrees. It was Dr. Albrecht that requested that the Summary Review Board convene to
review Plaintiff’s performance. [20-2 (Def.’s Ex. 19), at 122-23.] Furthermore, Dr. Albrecht was
brought before the members of the Summary Review Board “to provide any additional information
that may not [have been] included in the evidence file.” [20-2 (Def.’s Ex. 22), at 147.] At that
time, Dr. Albrecht stated that his real concern with Plaintiff’s performance was the patient safety
issue relating to Charge A, the only charge sustained. [Id. at 147, 149.]
Given Dr. Albrecht’s involvement in initiating the review and providing information to the
Summary Review Board, a reasonable jury could conclude that Dr. Albrecht was the proximate
cause of Plaintiff’s constructive termination. Little v. Illinois Dep’t of Revenue, 369 F.3d 1007,
1015 (7th Cir. 2004) (“Even someone who merely recommends a termination is considered a
decisionmaker for purposes of assessing pretext when he was the one functionally, if not formally,
responsible for the decision.” (citations omitted)). Defendant argues that Plaintiff cannot proceed
on a cat’s paw theory because Dr. Albrecht just provided the Summary Review Board with
accurate information, but—in light of Dr. Albrecht’s delay in requesting review of Plaintiff’s
conduct—it is questionable whether Dr. Albrecht’s representations regarding the severity of the

21

incident with the code-blue pager actually were truthful. Brewer v. Bd. of Trustees of the Univ. of
Ill., 479 F.3d 908, 917 (2007) (cat’s paw theory may be accepted where individual supplies
“misinformation or fail[s] to provide relevant information to the person making the employment
decision”); cf. Lindsey v. Walgreen Co., 615 F.3d 873, 876 (7th Cir. 2010) (affirming summary
judgment where supposed cat’s paw manipulator did not conceal evidence from or present
falsehoods to decisionmaker).
The Court recognizes that Defendant has presented evidence indicating that it was
dangerous and improper for Plaintiff to leave the code-blue pager unattended. [20-2 (Def.’s Ex.
29), at 172-73, ¶ 3 (Dr. Albrecht affidavit averring that he believed a veteran could have died as a
result of Plaintiff’s actions on March 30, 2015 if there had been an emergency involving an airway
issue, which was not uncommon).] The Seventh Circuit has cautioned district judges about second
guessing legitimate employment decisions, as a court “is not a super personnel department that
second-guesses employers’ business judgments.” Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 895
(7th Cir. 2016) (citation and quotation marks omitted). Still, the more serious the nature of
Plaintiff’s conduct in March of 2015, the more questionable it is that Dr. Albrecht waited nearly
three months to request a review of Plaintiff’s conduct.

A jury ultimately may find that

Defendant’s conduct was justified and not based on any improper motive, but Plaintiff has
identified sufficient evidence to present that issue to a jury.
IV.

Conclusion
For the reasons set forth above, Defendant’s motion for summary judgment [18] is granted

in part and denied in part. The case is set for further status on October 9, 2018 at 9:00 a.m.

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Dated: September 25, 2018

____________________________
Robert M. Dow, Jr.
United States District Judge

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