Melgoza v. Rush University Medical Center, a not-for-profit corporation
Filing
225
MEMORANDUM Opinion and Order: For the reasons stated in the Memorandum Opinion and Order, Defendant's motion for summary judgment 150 is granted in part and denied in part. Melgoza's motion for leave to file her affidavit 198 is denied . The following claims remain for trial on the grounds explained in the Order: Count I (Equal Pay Act), Counts III and IV (Title VII discrimination), and Count V (Title VII retaliation). Signed by the Honorable Mary M. Rowland on 11/9/2020. (For further detail see attached order.) Parties shall file a joint status report by 12/4/20 stating whether a settlement conference would be productive.Mailed notice. (dm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NORMA MELGOZA,
Plaintiff,
Case No. 17-cv-6819
v.
RUSH UNIVERSITY MEDICAL
CENTER,
Judge Mary M. Rowland
Defendant.
MEMORANDUM OPINION AND ORDER
Norma Melgoza brings this employment discrimination action against Rush
University Medical Center. Rush has moved for summary judgment on all of
Melgoza’s claims. For the reasons stated below, Rush’s motion for summary judgment
[150] is granted in part and denied in part.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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). The substantive law controls which facts are
material. Id. After a “properly supported motion for summary judgment is made, the
adverse party must set forth specific facts showing that there is a genuine issue for
trial.” Id. at 250 (internal quotations omitted).
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The Court “consider[s] all of the evidence in the record in the light most favorable
to the non-moving party, and [] draw[s] all reasonable inferences from that evidence
in favor of the party opposing summary judgment.” Skiba v. Ill. Cent. R.R. Co., 884
F.3d 708, 717 (7th Cir. 2018) (internal citation and quotations omitted). The Court
“must refrain from making credibility determinations or weighing evidence.”
Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson,
477 U.S. at 255). In ruling on summary judgment, the Court gives the non-moving
party “the benefit of reasonable inferences from the evidence, but not speculative
inferences in [its] favor.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016)
(internal citations omitted). “The controlling question is whether a reasonable trier
of fact could find in favor of the non-moving party on the evidence submitted in
support of and opposition to the motion for summary judgment.” Id. (citation
omitted).
BACKGROUND 1
I. Melgoza’s Career at Rush
Melgoza is a Mexican-American female. (DSOF ¶ 1). She is currently employed as
a Director at Rush. (Id.). Rush is an Illinois not-for-profit corporation that is part of
a multifaceted non-profit health care organization. (Id. ¶¶ 2, 20). Melgoza began her
employment at Rush in 2006 as Assistant Vice President. (Id. ¶ 33). That year she
was appointed cancer conference coordinator for Rush’s Cancer Committee. (PSOF ¶
The facts in this Background section are undisputed unless otherwise noted. Rush’s Rule
56.1 Statement of Facts (Dkt. 152) is abbreviated as “DSOF”. Melgoza’s Rule 56.1 Statement
of Facts (Dkt. 168) is abbreviated as “PSOF”. Melgoza responded to Rush’s Statement of Facts
at Dkt. 167 and Rush responded to Melgoza’s Statement of Facts at Dkt. 193.
1
2
10). According to Melgoza’s former supervisor, she was the first woman executive
leader since Rush’s founding in 1837. (Id. ¶ 14).
In November 2010, Melgoza was promoted to Associate Vice President (“AVP”).
(DSOF ¶ 33). As an AVP, Melgoza had various managerial duties and was responsible
for various departments. (Id.). Melgoza reported to Robert Clapp from 2006 to 2012.
(Id. ¶ 34). She then reported to Michael Mulroe, who was a Vice President. (Id. ¶¶ 25,
34). As an AVP, in addition to benefits, Melgoza had a base salary as well as
management incentive compensation (“MICP”). (Id. ¶ 40). The MICP was 15% of base
salary at target, and 22.5% at max of base salary. (Id.). Since 2006, Melgoza has
expressed her interest in advancing her career at Rush. (PSOF ¶ 25).
II. Elimination of Melgoza’s Position
On or about July 14, 2016, Rush eliminated Melgoza’s position as Associate Vice
President. (DSOF ¶ 35). Rush explained the decision as a result of a restructuring of
cancer services under a “cancer service line” (although Melgoza disputes both the
existence of a cancer service line and the reason for her position elimination). (Id. ¶
36; Dkt. 167 at 18). Melgoza thereafter became a Director, reporting to Leo Correa
until January 2017. (DSOF ¶¶ 38, 39). She continued her oversight of cancer-related
services as a Director under Correa. (PSOF ¶ 38). As Director, Melgoza was no longer
eligible for the MICP but Rush provided her with a different type of incentive pay,
although she disputes that incentive was comparable to the MICP. (DSOF ¶ 44; Dkt.
167 at 23). As AVP, Melgoza was “grade 28” and as Director she was given the highest
grade for that position, “grade 9.” (PSOF ¶ 69).
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III. Melgoza’s Claims
On May 8, 2017, Melgoza filed a Charge of Discrimination (“Charge”) with the
Equal Employment Opportunity Commission (“EEOC”). (DSOF ¶ 96). She received
an EEOC “right to sue” letter on August 24, 2017. (Id. ¶ 97). She filed this lawsuit on
September 21, 2017. (Dkt. 1). In her Amended Complaint (or “complaint”) (Dkt. 43),
Melgoza brings claims against Rush for violation of the Equal Pay Act of 1963 (EPA)
(Count I), retaliation for exercising her rights under the EPA (Count II), violation of
Title VII of the Civil Rights Act of 1964 (Title VII) (Counts III and IV), retaliation for
exercising her rights under Title VII (Count V), and violation of the Illinois Human
Rights Act (IHRA) (Count VI).
ANALYSIS
I. Local Rule 56.1 and Melgoza’s Affidavit
The purpose of Local Rule 56.1 statements is to “streamline the resolution of
summary judgment motions by having the parties identify undisputed material facts
and cite the supporting evidence.” Laborers' Pension Fund v. Innovation Landscape,
Inc., 2019 WL 6699190, at *1 (N.D. Ill. Dec. 9, 2019) (citation omitted). Here neither
party fully complied with Local Rule 56.1, unfortunately making the Court’s task
more difficult. For example, while the Court agrees with Rush that Melgoza at times
misrepresented the evidence, Rush also sometimes responded to Melgoza’s statement
of facts by arguing that the documents did not support the statement when in fact
they did. While the Court can require strict compliance with Local Rule 56.1, it has
discretion in that regard. Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 414
4
(7th Cir. 2019). Accordingly particular evidence is addressed in the opinion as is
necessary.
Melgoza has filed a motion for leave to file her affidavit [198]. She seeks to
authenticate certain exhibits including her “handwritten notes, summaries and
timelines of events authored and complied by [her], and her description of her job
duties and claims.” (Id. at 6). Some of these documents the Court did not need to rely
on either because they lacked relevance or because the facts were supported by
evidence elsewhere in the record. However, the Court will not permit Melgoza to rely
on her own handwritten notes and her timelines if these notes are being offered to
prove the truth of the matter asserted in them. See Alexander v. Cit Tech. Fin. Servs.,
Inc., 217 F. Supp. 2d 867, 883 (N.D. Ill. 2002). She does not argue that these are
present sense impressions that constitute an exception to the hearsay rule. See id.
Instead these notes appear to have been created at a variety of times, as recently as
2019, and she sometimes broadly states that they were created from her “memory.”
Moreover, Melgoza’s reliance on these documents contravenes the purpose of
Local Rule 56.1. For example she relies on “Group Exhibit MMM” throughout her
statement of facts sometimes without citation to any particular page number. Group
Exhibit MMM is a nearly 300 page document. This is not appropriate on summary
judgment. The Court is not obligated “to scour the record looking for factual disputes.”
Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir. 2016) (citation and quotations omitted);
see also Malec v. Sanford, 191 F.R.D. 581, 583-84 (N.D. Ill. 2000) (parties’ Rule 56.1
statements must cite specific references to the record); Gray v. Ghosh, 2013 WL
5
5497250, at *5 (N.D. Ill. Oct. 3, 2013) (“facts may be considered on summary judgment
only if they are presented in a compliant Local Rule 56.1 statement or response.”).
Melgoza’s motion [198] is denied.
II. Equal Pay Act
Melgoza claims that Rush paid her less than male employees for substantially
equal work and retaliated against her for exercising her rights under the EPA. 2 “The
Equal Pay Act prohibits employers from discriminating between its employees by
paying an employee lower wages than the employer pays an employee of the opposite
sex.” Terry v. Gary Cmty. Sch. Corp., 910 F.3d 1000, 1008 (7th Cir. 2018) (citing 29
U.S.C. § 206(d)(1)). “Because a plaintiff’s burden of proof is different for Equal Pay
Act claims than it is for Title VII and § 1983 claims, we review [plaintiff’s] Equal Pay
Act claim first, then address her claims brought under Title VII.” Lauderdale v. Ill.
Dep't of Human Servs., 876 F.3d 904, 907 (7th Cir. 2017).
A. Relevant Time Period
Rush seeks to limit the relevant time period for Melgoza’s EPA claim based on the
allegations in her complaint and the statute of limitations. Rush argues that
Melgoza’s EPA claim is limited to her time as AVP from September 2014 to July 2016
Melgoza argues that “added rigor” should be applied in this case (Dkt. 166 at 13). While
courts should be cautious because employment discrimination cases often will turn on issues
of intent and credibility (Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 692
(7th Cir. 2000)), the Seventh Circuit has clarified on several occasions that “there is not a
separate rule of civil procedure governing summary judgment in employment discrimination
cases.” Bagley v. Blagojevich, 646 F.3d 378, 389 (7th Cir. 2011) (internal citation and
quotations omitted). “[T]he ultimate question...is whether a reasonable jury could find
prohibited discrimination.” Lauderdale, 876 F.3d at 907 (citation and internal quotations
omitted).
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(Dkt. 194 at 6, 9) (although as discussed below Rush argues it should be even more
narrow because of the statute of limitations). The Court agrees with Rush that
Melgoza’s EPA claim should be limited to her time as AVP but does not agree that
the two year statute of limitations applies as a matter of law.
Melgoza alleged in her complaint that “[t]hroughout [her] tenure as an Associate
Vice President” she was paid “$100,000.00 to $250,000.00 less per year than her male
and/or non-Mexican-American colleagues performing substantially equal work.” (Am.
Compl. ¶32) (emphasis added). However, in responding to summary judgment
Melgoza relies on her position as Director to support her EPA claim. “[A] plaintiff
‘may not amend his complaint through arguments in his brief in opposition to a
motion for summary judgment.’” Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir.
2012) (citation omitted). See BRC Rubber & Plastics, Inc. v. Cont'l Carbon Co., 900
F.3d 529, 541 (7th Cir. 2018) (“although a plaintiff generally can alter the legal
theories asserted in its complaint, it cannot alter the factual basis of [its] complaint
at summary judgment.”) (citation omitted). Because of the specificity required
regarding EPA comparators, the Court will not permit Melgoza to rely on a different
position she held during a different time frame, effectively amending her complaint
on summary judgment. See Cullen v. Indiana Univ. Bd. of Trustees, 338 F.3d 693,
698–99 (7th Cir. 2003) (describing the elements of a prima facie EPA claim); see also
Kent v. City of Chicago, 814 F. Supp. 2d 808, 815-16 (N.D. Ill. 2011) (barring EPA
plaintiff from relying on a new comparator identified for the first time in response to
defendant’s summary judgment motion).
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Turning to the Associate Vice President position, Rush argues that the EPA’s two
year, as opposed to three year statute of limitations (see 29 U.S.C. § 255(a)) applies
because Melgoza has not presented any evidence that Rush’s alleged EPA violation
was willful. As a result, Rush argues, Melgoza cannot recover for any alleged EPA
violations before September 21, 2015 (since she filed her original complaint on
September 21, 2017). Melgoza responds that a jury should decide if the two or three
year statute of limitations applies.
“A violation is ‘willful’ under the [EPA] if the defendant either knew he was
violating the [EPA] or was indifferent to whether he was violating it or not (and
therefore ‘reckless’).” E.E.O.C. v. Madison Cmty. Unit Sch. Dist. No. 12, 818 F.2d 577,
585 (7th Cir. 1987) (citations omitted). Melgoza has provided enough evidence to
create a jury question whether Rush was indifferent about violating the EPA. In 2013,
Melgoza complained to a senior vice president, Dr. David Ansell, that her requests
for equal pay were being ignored, and Dr. Ansell responded that if she complained to
HR, her days would be numbered. (PSOF ¶29). 3 In 2015, she formally requested a
pay equity review and discussed that request with her supervisor, who she says
dismissed the request. (Id. ¶30). And in 2016, at a Women’s Leadership Council focus
group meeting where the then-head of Human Resources (HR) Mary Ellen Schopp
was present, Melgoza publicly stated that Mulroe failed to address her wage
complaints that she was not being paid equitably. (Id. ¶32; see also DSOF ¶24). The
Rush objects to Melgoza’s reliance on complaints that pre-date 2014 (Dkt. 193 at 20), but to
decide if a jury question exists whether Rush was indifferent to violating the EPA for
purposes of the statute of limitations, Rush has not cited authority requiring the Court to
limit its analysis to September 2014 through July 2016.
3
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statute of limitations question will be left to a jury. See White v. Zema Sys. Corp.,
1996 WL 666683, at *2 (N.D. Ill. Nov. 14, 1996) (whether defendant willfully violated
EPA giving rise to three year statute of limitations was question of fact to be decided
by the trier of fact) (citing Bankston v. State of Illinois, 60 F.3d 1249, 1253 (7th Cir.
1995)); see also Bum Hoon Lee v. BK Schaumburg Inc., 2020 WL 3577994, at *6 (N.D.
Ill. July 1, 2020).
For these reasons, for purposes of summary judgment, Melgoza’s EPA claim is
limited to the time period of September 21, 2014 through July 14, 2016.
B. Comparators
Rush argues that Melgoza fails to identify any proper comparators for her EPA
claim. To establish a prima facie claim under the EPA, an employee must
demonstrate “a difference in pay despite having a job that requires ‘equal skill, effort,
and responsibility’ as the comparator and a job that is performed under similar
working conditions to the comparator…If the employee makes this showing, the
burden of proof shifts to the employer to prove some neutral factor that explains the
difference in pay.” Terry, 910 F.3d at 1008 (citations and quotations omitted). A prima
facie case of wage discrimination requires a plaintiff to show “by a preponderance of
the evidence, that: (1) higher wages were paid to a male employee, (2) for equal work
requiring substantially similar skill, effort and responsibilities, and (3) the work was
performed under similar working conditions. No proof of discriminatory intent is
required.” Warren v. Solo Cup Co., 516 F.3d 627, 629 (7th Cir. 2008) (internal
citations and quotations omitted). Melgoza identifies the following comparators: (1)
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Mike Mulroe; (2) Scott Sonnenchein; (3) Shaun Cooper; (4) Leo Correa; (5) Josh Ellis;
and (6) Jeremy Strong. (Dkt. 166 at 14).
Mike Mulroe: Melgoza argues that her position as AVP was substantially equal
to that of Mulroe, Vice President of Hospital Operations. (PSOF ¶ 44). Melgoza’s
response brief does not specify whether she is comparing her responsibilities in 201416 as AVP to Mulroe’s responsibilities in 2014-16 or to Mulroe’s responsibilities in
2018. As Rush points out, Melgoza identifies Mulroe’s total compensation only for
2018. (PSOF ¶ 44; Dkt. 194 at 9). Having identified Mulroe’s 2018 compensation only
and having failed to articulate the comparison she is asking the Court to make, the
Court cannot determine whether the work Melgoza and Mulroe performed required
substantially similar skill, effort and responsibility, was done under similar working
conditions, and whether Mulroe received higher wages for that work. See Cullen, 338
F.3d at 698–99 (“The EPA specifies three separate elements that are to be considered
in comparing job duties: skill, effort and responsibility. Each of these elements must
be met individually to establish a prima facie case. Moreover, the jobs must be
performed under similar working conditions.”) (citations omitted); Leong v. SAP Am.,
Inc., 67 F. Supp. 3d 972, 985 (N.D. Ill. 2014) (it is not the court’s responsibility to
parse plaintiff’s argument about comparators); see also Riley v. City of Kokomo, 909
F.3d 182, 190 (7th Cir. 2018) (“It is not the obligation of th[e] court to research and
construct the legal arguments open to parties, especially when they are represented
by counsel.”) (internal citations and quotations omitted).
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Scott Sonnenchein: As a Vice President of Hospital Operations, Sonnenchein
was responsible for surgical care, interventional services, endoscopy, and all of
nursing that fell under those groups. (PSOF ¶ 47). His responsibilities also included
scheduling, the ear nose and throat clinic, interventional radiology, EP labs, cath
labs,
neuroendovascular,
and
procedure
rooms.
(Id.)
He
had
budgeting
responsibilities to review all expenses and revenue projections, full time employees,
and all expense lines. (Id.) He oversaw approximately 500 to 600 full time employees.
(Sonnenchein Dep. Dkt. 171-11, Exh. R, at p. 42).
As AVP, Melgoza’s responsibilities covered complex clinical areas and support
functions. (PSOF ¶ 16). She was responsible for breast imaging, radiation oncology,
medical physics, dialysis, plasmapheresis, and emergency management. (Id. ¶ 18).
Her portfolio also included guest relations, interpreter services, volunteer services,
the security department, linen services, and environmental services. (Id. ¶ 17). As
AVP, Melgoza was responsible for budgets exceeding $200 million in revenue, a
budget of $80 million, over 700 full time employees, 3.1 million cleanable clinical
square feet, and between nine and eleven clinical support departments at one time,
and had level four purchasing authority which permits spending up to $1,000,000.
(Id. ¶ 19). 4
In support of these statements, Melgoza relies on a number of documents. The Court agrees
with Rush that not all of documents support all of Melgoza’s statements as it relates to her
duties in 2014-2016. For example although she lists “services leader for cancer, dermatology,
research”, she did not mention dermatology at her deposition or on her resume, and she
testified that she lost oversight of cancer and research in 2012. (Melgoza Dep. p. 380).
However, the Court has relied on statements supported by Melgoza’s deposition testimony
(Exhibit B) and her resume (Exhibit BBB). Rush does not object to Melgoza’s reliance on her
4
11
Comparing Sonnenchien’s and Melgoza’s positions as to skill, effort and
responsibility shows they are proper comparators. First as to skill, which “includes
consideration of such factors as experience, training, education, and ability” (29
C.F.R. § 1620.15(a)), both Sonnenchien and Melgoza had Bachelor’s and Master’s
degrees. (PSOF ¶¶ 1, 46). Both had been in the healthcare industry since the 1990s.
(Id. ¶¶ 4, 46). As to effort, Melgoza was responsible for more than 700 full time
employees and Sonnenchein for approximately 500 to 600 full time employees. As to
responsibility, Melgoza and Sonnenchein had a common core of tasks—responsibility
for multiple clinical areas and for support or administrative areas. Sonnenchein’s
estimated budget size for all departments was in the hundreds of millions of dollars
and Melgoza’s exceeded $200 million (Id. ¶¶ 19, 47). Finally Rush does not dispute
that Melgoza and Sonnenchein worked under similar working conditions.
Other than taking issue with some of the documents Melgoza relies on as
evidence 5, Rush’s only response to Melgoza’s reliance on Sonnenchein as a
comparator is that Sonnenchein was a Vice President and generally Vice Presidents
have greater responsibilities than AVPs. (Dkt. 194 at 10). But “[a]ctual job
performance and content, not job titles, are key.” Soto v. Adams Elevator Equip. Co.,
resume, and it is well-settled that she can rely on her deposition testimony. See Johnson v.
Advocate Health and Hospitals Corp., 892 F.3d 887, 901 (7th Cir. 2018).
Rush is correct that Melgoza miscites Sonnenchein’s deposition testimony about how many
full time employees he oversees (Dkt. 193 at 32), and the Court has cited the correct
testimony: 500 to 600 employees. (Sonnenchein Dep. at p. 42). However, it is unclear to the
Court why Rush objects to the documents Melgoza relies on showing the compensation of
Sonnenchein (or the other comparators) since Melgoza relies on Sonnenchein’s W-2’s issued
by Rush. (Exh. WWW). Rush provides no basis for objecting to the W-2’s as evidence of
compensation.
5
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941 F.2d 543, 548 (7th Cir. 1991); Markel v. Bd. of Regents of Univ. of Wisconsin Sys.,
276 F.3d 906, 913 (7th Cir. 2002) (the jobs compared should be “substantially equal,
based upon actual job performance and content—not job titles, classifications or
descriptions.”) (citations and quotations omitted); see also Fallon v. State of Ill., 882
F.2d 1206, 1209 (7th Cir. 1989) (‘The crucial finding on the equal work issue is
whether the jobs to be compared have a common core of tasks, i.e., whether a
significant portion of the two jobs is identical.) (citations and quotations omitted).
Having found a common core of tasks between Melgoza’s and Sonnenchein’s
positions, the Court “ask[s] whether any additional tasks make the jobs ‘substantially
different.’” Cullen, 338 F.3d at 698. Rush has not provided any evidence that
Sonnenchein had additional tasks making his job substantially different from
Melgoza’s. Based on the record, Melgoza was responsible for approximately 100 more
full time employees than Sonnenchein. In addition, “in determining whether equal
pay is being paid for equal work, the size of the pay differential, though not
determinative…is highly relevant…[meaning that a smaller differential is] more
likely [] to be justified by a small difference in the work.” Sims-Fingers v. City of
Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007) (citation omitted). In 2015, Melgoza’s
approximate compensation was $172,540 and Sonnenchein’s was more than double
that, $367,663. (DSOF ¶ 47; PSOF ¶ 47, Exh. WWW). In 2016, the difference was
similar ($182,319.44 for Melgoza and $377,668.52 for Sonnenchein). (DSOF ¶ 48;
13
Exh. WWW). 6 Melgoza has established that Sonnenchein is an appropriate
comparator for her EPA claim.
Shaun Cooper: In March 2015, Cooper was promoted to AVP, Rush Children’s
Hospital at a base salary of $159,500. (PSOF ¶ 53). This was less than Melgoza’s
salary at the time (approximately $172,540). Melgoza refers to Cooper’s salary when
he became Chief Administrative Officer in 2018 but this outside of the relevant time
frame for her EPA claim. Melgoza fails to establish that Cooper is a proper
comparator.
Josh Ellis: Melgoza identifies Ellis’s 2016 salary, which was less than hers.
(PSOF ¶ 54). She points to his 2018 salary (id. ¶ 55), but that is outside of the relevant
time frame. Thus Melgoza cannot rely on Ellis as a comparator.
Jeremy Strong: Melgoza compares her AVP position to Strong’s AVP position.
(Dkt. 166 at 17). Both were AVPs in 2015 and 2016. (PSOF ¶ 49). Strong had
responsibility for the operating room, perioperative space, recovery, interventional
radiology, cardiac cath, neuroendovascular, electrophysiology, therapies, inpatient
rehab facility, and JRB apartments. (Id.) In 2015, his salary was $191,901 compared
to $172,540 for Melgoza, and his salary in 2016 was $196,153 compared to Melgoza’s
$182,319. (Id.; Exh. XXX). See King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 473
(7th Cir. 2012) (“Even a dollar’s difference based on sex violates both Title VII and
the Equal Pay Act.”). Both Strong and Melgoza have master’s degrees. (PSOF ¶¶ 1,
48). Strong was responsible for 500-700 full time employees and Melgoza for 700 full
6
These numbers represent “wages, tips and other compensation”, not “Medicare wages.”
14
time employees. (Id. ¶¶ 19, 49; (Strong Dep., Dkt. 173-15, Ex. YYY, p. 24)). They had
a common core of tasks—responsibility for multiple clinical areas and for support of
administrative areas. (PSOF ¶¶17-19, 49). Rush points to Strong’s testimony that (1)
he could have been responsible for approximately $100 million more than Melgoza in
his budgets and (2) he managed an independent living facility in addition to
overseeing his departments. But Rush does not explain how this makes their jobs
“substantially different.” Cullen, 338 F.3d at 698 (emphasis added). For example, in
addition to other responsibilities, Melgoza was the cancer conference coordinator.
(PSOF ¶10). The Court finds Strong is a proper comparator for Melgoza’s EPA claim.
Leo Correa: Correa was hired by Rush in 2005 and became AVP in 2013. (PSOF
¶¶50-51). As to skill, effort, and responsibility, Melgoza has shown that her job was
comparable to Correa’s. Both individuals had bachelor’s and master’s degrees. (Id.
¶¶1, 50). Both had responsibility for substantive medical areas and administrative
duties. Rush stresses that Correa was responsible for an “entire service line” made
up of 500 employees, but Melgoza was responsible for 700 employees, and Rush does
not explain how Correa’s responsibility made his job substantially different from
Melgoza’s. In 2015, Melgoza’s approximate compensation was $172,540 and Correa’s
was $206,483. (PSOF ¶ 51; Exh. ZZZ). Correa’s 2016 salary was $227,517 and
Melgoza’s was $182,319. (Id.). As with Strong and Sonnenchein, Rush does not
dispute that Melgoza and Correa worked under similar working conditions. Correa is
a proper comparator for Melgoza’s EPA claim.
15
In sum, Melgoza has made a prima facie EPA case based on the following
comparators: Sonnenchein, Strong, and Correa.
C. Bona Fide Business Reason
Rush contends that even if Melgoza can make out a prima facie case under the
EPA, bona fide business-related reasons justify any wage discrepancies. “Once a
plaintiff establishes a prima facie case under the Equal Pay Act, the burden of proof
shifts to the employer to show that the pay disparity is due to: (1) a seniority system;
(2) a merit system; (3) a system which measures earnings by quantity or quality of
production; or (4) any other factor other than sex. These are affirmative defenses on
which the employer bears the burden of proof (persuasion).” Fallon, 882 F.2d at 1211
(citations omitted). Rush argues that the fourth affirmative defense—the “catchall”—applies. See id. This exception “embraces an almost limitless number of factors,
so long as they do not involve sex” and “we ask only whether the factor is
discriminatorily applied or if it causes a discriminatory effect.” Id. (citations omitted).
Rush contends that it had a bona fide, gender neutral rationale for any
discrepancy in pay: a grade system for AVPs where grades are determined based on
job description, responsibilities, skills and education, and market data is used to
develop a salary range for each grade level. (Dkt. 151 at 15). First, this does not apply
to Melgoza’s comparator, Sonnenchein, since he was a VP while she was an AVP, and
Rush’s Sylvia Chen testified that VP positions “were never graded.” (Chen Dep. (Dkt.
155-20), p. 66). Rush does not explain how its alleged business reason applies to the
difference between his pay and Melgoza’s, and Rush does not offer any other reason
16
for the difference. (Dkt. 151 at 15; Dkt. 194 at 12-13). As Melgoza points out, in
addition to VP positions, some AVP positions were not graded. (Dkt. 167 at 21).
Indeed, Chen explained that some AVP positions were not graded and the identifier
“admin/tech manager 28” was entered into the system, even though a grade was not
actually associated with the position, and “admin/tech manager 28” does not have any
minimum or maximum salary associated with it. (Chen Dep. p. 67). Chen testified
that there were a “handful of AVP-level jobs that were nongraded including
[Melgoza’s].” (Id. p. 68, emphasis added). Thus Chen’s testimony contradicts Rush’s
rationale that a grading system explains the difference in Melgoza’s salary compared
to men.
As to Strong and Correa, who were AVPs at the same time as Melgoza, in 2015
and 2016, Melgoza, Strong, and Correa were all “admin/tech manager 28”. (PSOF ¶
69; Exh. LL). Even assuming for the sake of argument that Rush’s grading system
applied to all AVPs, Rush does not explain how that system resulted in the actual
salary differentials. See King, 678 F.3d at 474 (where defendant articulated
potentially explanatory variables without proving that they actually accounted for
the difference, district court erred in granting summary judgment to defendant on
EPA claim); Leong, 67 F. Supp. 3d at 984 (employer “must prove that the explanatory
variable actually accounts for the difference; it is an affirmative defense as to which
the defendant bears the burdens of production and persuasion…Under the [EPA], it
is not up to the plaintiff to establish that the employer’s neutral reasoning is
pretextual; the employer must prove its reasons outright once the plaintiff has shown
17
a prima facie case of pay disparity.”) (emphasis in original) (citations omitted). Cf.
Warren, 516 F.3d at 630 (specifically evaluating two employees in terms of whether
differential was bona fide).
Rush has failed to meet its burden to prove a gender neutral rationale for the
discrepancy in pay between Sonnenchein, Strong and Correa on one hand and
Melgoza on the other. Melgoza’s EPA unequal pay claim withstands summary
judgment.
D. Retaliation under the EPA
Melgoza claims that Rush discriminated against her for exercising her rights
under the EPA. Melgoza must establish that: “(1) she engaged in statutorily protected
expression; (2) she suffered an adverse employment action; and (3) there was a causal
link between the protected expression and the adverse action.” Leong, 67 F. Supp. 3d
at 985. As for her protected expression, Melgoza points to her statement in 2006 to
her supervisor Clapp that she was underpaid, her April 14, 2015 formal request to
her supervisor Mulroe for an equitable salary review, and her statement in a 2016
WLC meeting that her wage inequality had not been addressed. (Dkt. 166 at 27).
Melgoza’s complaint in 2006 was ten years before any alleged adverse action. She
does not provide any evidence to connect her complaint in 2006 with her demotion in
2016. Moreover, she testified that after complaining to Clapp in 2006, he worked with
HR (albeit not as quickly as she would have liked), HR performed a market review for
her salary as an Assistant Vice President, and as a result Rush increased her salary
by 6% or 8%, and then later in 2010 she was promoted to Associate Vice President.
18
(Melgoza Dep., Exh. B, pp. 67-68). Melgoza does not claim that Clapp, who passed away
in 2012 (DSOF ¶ 34), was involved in any retaliation against her. Melgoza’s 2006
complaint cannot form the basis of a retaliation claim.
Melgoza’s April 2015 request for review of her salary did not mention that she
believed she was paid less because of her gender. (PSOF ¶ 30, Exh. OOO). In that
request, she asked Mulroe to “please review my salary based on the dynamic span of
my portfolio, education and experience. I want to be treated and compensated
equitably for my effort based on the market.” (Id.). At her deposition she also did not
testify that she told Mulroe that she believed the wage inequity was based on her
gender. (PSOF ¶ 30, Melgoza Dep., pp. 528-535). Similarly, her statement in the
January 2016 WLC meeting was that Mulroe had failed to address her wage
complaints and she was not being paid equitably, but again did not state that she was
being paid inequitably because of her gender. 7
“A complaint about dissatisfaction with one’s compensation in general does not
trigger protection of the statute.” Leong, 67 F. Supp. 3d at 986. The evidence does not
show that Melgoza’s complaints in 2015 and 2016 referenced gender-based pay
discrepancies. In Jaburek v. Foxx, 813 F.3d 626, 634 (7th Cir. 2016) 8 for example,
plaintiff requested an audit to determine whether her compensation correlated to her
As discussed, Melgoza cannot rely on Exhibits M or HHH. Moreover, Exhibit M provides
the incorrect date for the April 2015 memo to Mulroe (instead giving a date of June 24, 2016)
and still does not show she complained of inequitable pay because of her gender. (Exh. M,
Dkt. 169-9 at 4).
7
Jaburek involved a Title VII retaliation claim. Retaliation under Title VII and the Equal
Pay Act are evaluated under a similar standard. See Krause v. City of La Crosse, 246 F.3d
995, 1000 (7th Cir. 2001).
8
19
work. However, “none of [plaintiff’s] documents or statements contain[ed] oppositional
language or complaints or refer to any discrimination towards [plaintiff].” Id. Cf. Betts
v. Option Care Enterprises, Inc., 2019 WL 193914, at *10 (N.D. Ill. Jan. 15, 2019)
(plaintiff alleged that in her complaint to her supervisor “she asked for a raise ‘so her
earnings would be comparable to those of similarly situated men, particularly Hess.’
Her complaint therefore was directed specifically at gender-based pay discrepancies,
rather than general dissatisfaction about pay.”). Rush’s summary judgment motion on
Melgoza’s claim for retaliation under the EPA is therefore granted.
In sum, Melgoza can proceed on her EPA wage inequity claim (Count I) based only
on the three comparators identified. Summary judgment is granted in favor of Rush
on her EPA retaliation claim (Count II).
III. Title VII – Discrimination
Melgoza alleges that Rush discriminated against her in violation of Title VII based
on her gender and national origin. She claims Title VII violations based on (1)
unequal pay; (2) her demotion; (3) Rush’s failure to allow her to prepare for
interviews; and (4) Rush’s failure to promote her to more advanced positions.
Under Title VII, it is an unlawful employment practice for an employer “to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). “The critical question on
summary judgment is whether [plaintiff] presented evidence that would permit a
reasonable fact-finder to conclude that the [defendant] took a materially adverse
20
employment action against [plaintiff] because of her sex.” Terry, 910 F.3d at 1004
(citations omitted). “Discrimination claims may survive summary judgment when a
plaintiff presents evidence that permits a reasonable factfinder to conclude that the
employer took an adverse action against the employee because of the employee’s race
or national origin. In deciding motions for summary judgment, courts must consider
the evidence as a whole.” de Lima Silva v. Dep't of Corr., 917 F.3d 546, 559 (7th Cir.
2019) (citing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)).
A. Interviews and failure to promote
Rush argues that Melgoza failed to respond to its argument that her
discrimination claims failed based on the theories that Rush did not allow her to
prepare for interviews and did not promote her to more advanced positions. (Dkt. 194
at 18). The Court agrees. Melgoza has abandoned her Title VII discrimination claim
based on those two theories. See Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th Cir.
2008) (where plaintiff failed to defend her claim against defendant’s arguments on
summary judgment, she abandoned that claim); Palmer v. Marion Cty., 327 F.3d 588,
597-98 (7th Cir. 2003); Barnes v. Nw. Repossession, LLC, 210 F. Supp. 3d 954, 970
(N.D. Ill. 2016) (plaintiff’s failure to respond to defendant’s argument that it was
entitled to summary judgment on claim meant that plaintiff conceded that summary
judgment on that claim was warranted).
B. Unequal Pay
Melgoza claims that Rush violated Title VII by failing to pay her the same as men
and/or non-Mexican American individuals. Melgoza “must present sufficient evidence
21
that she was a member of a protected class, she performed reasonably on the job in
line with the employer’s legitimate expectations, she was subjected to an adverse
employment action, and similarly situated employees of the opposite sex were treated
more favorably.” Lauderdale, 876 F.3d at 910. Unlike the EPA, Title VII requires
plaintiff to show defendant’s intent to discriminate. See Fallon, 882 F.2d at 1213.
Similar to her EPA claim, Melgoza relies on comparators to show discrimination.
Under Title VII, “[s]imilarly situated employees must be directly comparable to the
plaintiff in all material respects, yet this is a flexible inquiry with no magic formula.
Whether a comparator is similarly situated is usually a question for the fact-finder,
and summary judgment is appropriate only when no reasonable fact-finder could find
that plaintiffs have met their burden on the issue.” Barbera v. Pearson Educ., Inc.,
906 F.3d 621, 629 (7th Cir. 2018) (citations and quotations omitted). “The purpose of
the inquiry is to eliminate other possible explanatory variables, such as differing
roles, performance histories, or decision-making personnel, which helps isolate the
critical independent variable—discriminatory animus.” Skiba, 884 F.3d at 723
(citations and quotations omitted).
The male comparators Melgoza relies on are Mulroe, Sonnenschein, Strong,
Cooper, Correa, and Ellis (Dkt. 166 at 21). The Court’s analysis, supra, shows that
Melgoza has provided enough evidence that Sonnenschein, Strong and Correa are
directly comparable to Melgoza in all material respects. However, a reasonable factfinder could not find that Melgoza met her burden as to Mulroe, Cooper, and Ellis
22
because she has not provided sufficient evidence to compare their jobs and
compensation while she was AVP. 9
If Rush articulates a nondiscriminatory reason for the pay discrepancy, the
burden shifts to Melgoza to “prove that the employer’s justification was pretext for a
decision made on prohibited criteria.” Lauderdale, 876 F.3d at 910. 10 Rush’s
justification for the pay discrepancies is a difference in responsibilities, educational
requirements, and skills and the grading system for AVP’s. (Dkt. 151 at 23). For
Melgoza’s EPA claim, the Court found that Rush failed to meet its burden to prove a
gender neutral rationale for the pay discrepancy because of contradictions in the
record and because Rush did not show how the grading system actually applied to
Melgoza and her comparators. But for her Title VII claim, Melgoza has the burden to
show pretext to rebut Rush’s justification. She “must show that her employer did not
honestly believe in the reasons it gave for setting salaries.” Keeton v. Morningstar,
Inc., 667 F.3d 877, 885 (7th Cir. 2012). “Pretext means a dishonest explanation, a lie
rather than an oddity or an error.” Everroad, 604 F.3d at 479 (citations and
quotations omitted). Melgoza does not discuss pretext in the context of her Title VII
unequal pay claim, and only argues that her requests for an equity review were
As discussed earlier regarding her EPA claim, Melgoza provides no basis to extend her Title
VII equal pay claim to her position as Director starting in July 2016.
9
As to Melgoza’s six female (non-Mexican American) comparators (Dkt. 166 at 21), the Court
agrees with Rush that Melgoza has not provided enough evidence about these comparators
for the Court to find “enough common factors...to allow for a meaningful comparison in order
to divine whether intentional discrimination was at play.” Skiba, 884 F.3d at 723. However
the Court need not address the issue in detail because Melgoza has failed to carry her burden
on the issue of pretext. See Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 478 (7th Cir.
2010) (some cases warrant skipping initial burden-shifting to focus on question of pretext).
10
23
ignored and Rush did not follow its own salary review procedures. (Dkt. 166 at 21).
This is not “’significantly probative admissible evidence’ from which it could be
inferred that the employer’s reason was false and that the actual reason was
discriminatory.” Giwa v. City of Peoria, 917 F. Supp. 2d 850, 857 (C.D. Ill. 2013)
(emphasis added) (citing Jones v. Union Pac. R.R., 302 F.3d 735 (7th Cir. 2002)).
Therefore a reasonable juror could not infer both that Rush’s reason for the pay
discrepancy was false and that the actual reason was discriminatory.
Rush’s summary judgment motion on Melgoza’s Title VII claim based on unequal
pay is granted.
C. Mini-RIF
Melgoza argues that when Rush restructured its cancer services line in July 2016,
hers was the only position eliminated in a “mini-RIF” (reduction in force). (Dkt. 166
at 11, 25). “The point of the mini-RIF, unlike a true RIF, is that the job really was not
eliminated at all; because the fired employee’s duties were absorbed by others, they
were effectively ‘replaced,’ not eliminated.” Bellaver v. Quanex Corp., 200 F.3d 485,
495 (7th Cir. 2000). “Because of the fear that employers might misuse the RIF
description to recharacterize ordinary terminations as reductions in force when they
terminate an individual with a unique job, we have dispensed with the requirement
that the plaintiff show ‘similarly situated’ employees who were treated more
favorably. Instead, because the fired employee’s duties are absorbed by other workers
and the employee was ‘replaced, not eliminated,’ we only require that a plaintiff
demonstrate that his duties were absorbed by employees who were not members of
24
the protected class.” Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 693
(7th Cir. 2000) (citations omitted).
To survive summary judgment on her mini-RIF discrimination theory, Melgoza
must show (1) she is a member of a protected class, (2) she reasonably performed to
Rush’s expectations, (3) she was subject to an adverse employment action and (4) her
duties were absorbed by employees who were not members of the protected class. See
Michas, 209 F.3d at 693. Rush does not dispute any of these elements of Melgoza’s
prima facie case. (Dkt. 151 at 22-23). 11
Although Rush argues that Melgoza’s characterization of her transition to
Director as a “demotion” is a “legal conclusion” (Dkt. 193 at 23), Rush does not dispute
that her position was eliminated or that the elimination was an adverse employment
action. Moreover, Senior Vice President and Chief Operating Officer Cynthia
Barginere (the supervisor of Melgoza’s supervisor) referred to it as a “demotion.”
(Barginere Dep. (Dkt. 171-13) p. 100); see also DSOF ¶ 23). As to the fourth prong,
Melgoza’s non-cancer related portfolio of departments became the responsibility of
Mulroe (a white male). (Dkt. 166 at 25-26; Dkt. 151 at 17-18; DSOF ¶ 37). The three
cancer-related departments Melgoza was responsible for were moved to the cancer
service line under Correa (a Mexican American male). (Id.). Rush does not dispute
Rush asserts that Melgoza has not identified a similarly situated employee who was treated
more favorably. (Dkt. 151 at 23). But for purposes of her mini-RIF discrimination theory, she
does not need to make that showing. Bellaver, 200 F.3d 485 at 495 (“The plaintiff in a singledischarge case does not need to make a showing that ‘similarly situated’ employees were
treated better because the inference of discrimination arises from the fact that they were
constructively ‘replaced’ by workers outside of the protected class.”).
11
25
that Melgoza continued her oversight of these cancer-related services as a Director
under Correa. (PSOF ¶ 38).
Melgoza has created a presumption of discrimination so the burden shifts to Rush
“to present a legitimate non-discriminatory motive for the adverse employment
action.” Michas, 209 F.3d at 694. Rush contends that it eliminated Melgoza’s position
in a legitimate restructuring decision “to operationalize the cancer service line” to
better serve its cancer patients. (Dkt. 151 at 17, 23). Because Melgoza was responsible
for three departments to be moved under the cancer service line, Rush argues that
the portfolio of departments remaining under Melgoza’s purview did not warrant an
AVP position. (Id.). There are two problems with Rush’s explanation. First, Rush’s
reason for restructuring departments does not provide a legitimate nondiscriminatory motive for the adverse employment action against Melgoza. Second,
even accepting Rush’s explanation that after the restructuring, an AVP position was
not
warranted
given
Melgoza’s
remaining
responsibilities
under
Mulroe’s
supervision, Rush does not explain why Melgoza could not have kept her AVP title
when she transitioned to her position in the cancer service line.
Rush does not argue that Melgoza had any performance issues or that eliminating
her AVP position was financially necessary. To the contrary, Rush argues that
Melgoza’s base pay did not decrease as a result of her transition to Director and Rush
even provided her a unique incentive program not generally available to other
Directors. (DSOF ¶¶ 44, 51). Thus Rush has failed to set forth a legitimate nondiscriminatory motive for the adverse employment action to rebut Melgoza’s prima
26
facie case of discrimination. Cf. Michas, 209 F.3d at 694-95 (deposition testimony
supported company’s financial rationale that employee’s discharge was economically
motivated); Bagwe v. Sedgwick Claims Mgmt. Servs., 811 F.3d 866, 881 (7th Cir.
2016) (company’s reason for termination—plaintiff’s poor leadership skills—was
supported by evidence that plaintiff was on performance improvement plan and
employer had received multiple complaints about plaintiff's inability to work with
others). Even if Rush had set forth a legitimate reason, considering the evidence as a
whole, Melgoza has identified weaknesses and inconsistencies in Rush’s explanation
for her demotion such that a reasonable juror could find the explanation unworthy of
credence. 12
Melgoza’s Title VII discrimination claim based on her mini-RIF theory survives
summary judgment.
D. Hostile Work Environment
Melgoza claims that she was subjected to a hostile work environment at Rush.
“When the workplace is permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
Megloza has provided evidence of pretext. (Dkt. 166 at 26; PSOF ¶ 36; Dkt. 167 at 16).
Pretext requires evidence from which it can be inferred that Rush did not, at the time of
Melgoza’s demotion, honestly believe the reason it gave for demoting her. See Michas, 209
F.3d at 695; Coleman v. Donahoe, 667 F.3d 835, 852 (7th Cir. 2012). Melgoza points to
Barginere’s testimony stating that Rush could have kept Melgoza as an AVP. (Barginere Dep.
pp. 96-100). Further supporting Melgoza’s contention that she could have been kept her AVP
title is an organizational chart created by Mulroe in May 2016. (PSOF ¶ 36, Exh. QQQQ). At
his deposition, Mulroe explained that the chart shows three options for the transition in 2016,
in the first of which, Melgoza is an AVP along with another AVP. In addition, Rush does not
dispute that non-Mexican American male employees had their duties changed during the
restructuring but none were demoted. (Dkt. 166 at 26; Dkt. 194 at 16-18).
12
27
employment and create an abusive working environment, Title VII is violated.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993) (internal
citations and quotations omitted). “This is a demanding standard; a plaintiff's
evidence must go well beyond showing rudeness or incivility…, even if it need not
reach the point of ‘hellishness.’” Demkovich v. St. Andrew the Apostle Par., Calumet
City, 973 F.3d 718, 728 (7th Cir. 2020) (citations omitted).
Melgoza argues that three events, taken together, create a jury question about
whether she endured a hostile work environment: (1) in early 2013, during a meeting
with Melgoza, executive vice president Michael Dandorph mentioned his Cuban
girlfriend and his boat; (2) in February 2017, Bianco, during an interview with
Melgoza, called her a snob because she went to Smith College; and (3) in November
2017, Dr. DeCresce began Melgoza’s interview by putting on a Donald Trump mask.
(Dkt. 166 at 22). Melgoza is correct that in hostile work environment cases, courts
analyze the totality of the circumstances (see Hall v. City of Chicago, 713 F.3d 325,
331 (7th Cir. 2013)) and statements by supervisors are taken more seriously than coworkers’ statements. (Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 638 (7th Cir. 2019)).
However, “employers generally do not face liability for off-color comments, isolated
incidents, teasing, and other unpleasantries that are, unfortunately, not uncommon
in the workplace.” Swyear v. Fare Foods Corp., 911 F.3d 874, 881 (7th Cir. 2018); see
also Passananti v. Cook Cty., 689 F.3d 655, 667 (7th Cir. 2012) (“[o]ffhand comments,
isolated incidents, and simple teasing do not rise to the level of conduct that alters
the terms and conditions of employment.”). Here, the incidents were infrequent—
28
Melgoza identifies three incidents that occurred over the course of more than four
years. They also lacked the severity of comments and conduct in other cases where
the Seventh Circuit has held that the hostile work environment question should be
decided by a jury. For example Melgoza relies on Robinson v. Perales, 894 F.3d 818
(7th Cir. 2018), reh’g denied (July 24, 2018), in which an employee’s supervisor used
a particular racial epithet toward him on multiple occasions. The Seventh Circuit
held that “Perales’s multiple uses of the word n- - - -r in combination with his
heightened scrutiny of Robinson and his call to others to take action against Robinson
are sufficient to create a triable issue for a jury on whether the harassment was
severe or pervasive enough to constitute a hostile work environment.” Id. at 828. In
Hall, 713 F.3d 325, also cited by Melgoza, plaintiff’s supervisor assigned her
unnecessary menial work, forbade her coworkers from speaking to her, prohibited her
from division meetings, stopped her efforts to take on more work, and subjected her
to occasional verbal outbursts and a minor physical altercation. Id. at 330-31. The
incidents Melgoza describes do not rise to the level of the comments and conduct in
Robinson or Hall. Melgoza also does not explain how the three incidents altered the
conditions of her employment.
While the Court understands Melgoza’s distress in response to these alleged
incidents, when considered on their own or in combination, a reasonable juror could
not find them to have created a hostile work environment. Accordingly Rush’s motion
for summary judgment on the hostile work environment claim is granted.
29
IV. Title VII Retaliation
A prima facie case of retaliation under Title VII requires a plaintiff to show: “(1)
[s]he engaged in a statutorily protected activity, (2) [her] employer took a materially
adverse action against him, and (3) there is a causal link between the protected
activity and the adverse action.” Mollet v. City of Greenfield, 926 F.3d 894, 896 (7th
Cir. 2019). Melgoza has put forth several theories of retaliation, one of which survives
summary judgment.
First, for the same reasons that Melgoza’s EPA retaliation claim fails, discussed
supra, her Title VII retaliation claim based on her alleged complaints of unequal pay
also fail. Second, Melgoza argues that her demotion was retaliation for her complaints
of discrimination against Mexican-Americans. (Dkt. 166 at 30). For support, Melgoza
points to the facts that she was a founding member of Rush’s Diversity Leadership
Council and “vocal in promoting opportunities for diverse leaders in healthcare,
particularly those of Mexican-American and Latino descent.” (PSOF ¶ 12). However
Melgoza has not “produce[d] evidence of an adverse employment action that was
instigated by her ‘complaining about prohibited discrimination.’” Jaburek, 813 F.3d
at 626 (emphasis added). “A retaliation claimant must produce evidence that she gave
‘a cognizable expression of opposition’ to discriminatory practices.” Id. Moreover, this
argument is undeveloped and therefore waived. See Riley, 909 F.3d at 190.
Melgoza’s final theory of retaliation is that Rush denied her promotion in 2017 in
retaliation for her complaints of discrimination after her demotion and her filing of
the EEOC charge and this litigation. (Dkt. 166 at 31-33). Here Rush again does not
30
dispute that there was a materially adverse action. See Hill v. Potter, 625 F.3d 998,
1003 (7th Cir. 2010) (failure to promote can be adverse action). And Rush does not
dispute that the EEOC charge, her complaint in this case, and 2017 complaint to HR
are protected activity. 13 Rush argues, however, that Melgoza cannot show any casual
link between her protected activity and the adverse action.
Melgoza relies on circumstantial evidence including “suspicious timing” to show
the causal link. 14 “Suspicious timing alone rarely establishes causation, but if there
is corroborating evidence that supports an inference of causation, suspicious timing
may permit a plaintiff to survive summary judgment.” Sklyarsky v. Means-Knaus
Partners, L.P., 777 F.3d 892, 898 (7th Cir. 2015). Melgoza claims that following her
May 2017 EEOC charge and September 21, 2017 complaint, she failed to get the
cancer administrator position in December 2017. (PSOF ¶ 87). 15 While this
In terms of protected activities, the Court focuses on Melgoza’s May 2017 EEOC Charge,
September 2017 complaint and November 2017 HR complaint. Melgoza makes general
references to complaints of discrimination after her 2016 demotion and before her EEOC
Charge, but she fails to produce evidence that she complained that she was demoted because
she was a Latina woman. For example she argues that she had a conversation with Dr. Ansell
in March 2017 (PSOF ¶ 74), but she did not actually testify about any details of that
conversation at her deposition (Exhibit B), nor does Exhibit PPPP, an email amongst some
Rush executives in 2017 about President Obama’s “hopeful and inspiring message”, show
that she made complaints about prohibited discrimination.
13
Circumstantial evidence to support causation can include: “(1) suspicious timing; (2)
ambiguous statements or behavior towards other employees in the protected group; (3)
evidence, statistical or otherwise, that similarly situated employees outside of the protected
group systematically receive[d] better treatment; and (4) evidence that the employer offered
a pretextual reason for an adverse employment action.” Rowlands v. United Parcel Serv. Fort Wayne, 901 F.3d 792, 802 (7th Cir. 2018) (citation omitted).
14
As to the other promotion she did not get, the interim cancer position in early 2017, that
came before the May 2017 EEOC charge and September 2017 complaint.
15
31
approximate three month period between filing her complaint and being denied the
promotion would not alone establish causation, additional record evidence supports
an inference of causation, creating a jury question about whether Rush retaliated
against Melgoza for filing this litigation and for her HR complaint.
Melgoza had multiple interviews for the cancer administrator position including
with DeCresce and Dandorph. (PSOF ¶ 84; DSOF ¶ 83). On November 1, 2017, at her
interview with DeCresce, she says DeCresce wore a Trump mask. (PSOF ¶ 85; Exh.
SSSS). On November 30, 2017, she reported to HR and Dandorph and Ranga
Krishman that DeCresce wore a Trump mask during her interview. (Exh. SSSS). HR
conducted an investigation, interviewing Melgoza and DeCresce each on December 4
and 5, 2017. (Id.) HR also interviewed Peter Jokich on December 7; Jokich reported
that Melgoza told him about DeCresce wearing the Trump mask on the same day as
her interview. (Id.) On December 20, 2017, HR informed Melgoza that they closed the
investigation because they were “not able to substantiate the version of the incident
as reported.” (Id.). (HR did instruct DeCresce to remove the mask from Rush
property. (DSOF ¶ 86)). Six days later, on December 26, HR informed Melgoza that
she did not get the cancer administrator position. (PSOF ¶ 87). Rush says it
determined none of the internal candidates were qualified for the job. (DSOF ¶ 87).
In May 2018, Rush retained an outside search firm to conduct a nationwide search to
fill the position. (Id.) The outside search firm presented twelve candidates to Rush,
one of whom was Melgoza, the only Rush employee. (Basara Dep., Exh. DD, pp. 3539). Rush decided not to move forward with Melgoza’s candidacy. (DSOF ¶ 89).
32
A reasonable juror could infer causation from this evidence. See Coleman, 667 F.3d
at 861 (reasonable juror could infer retaliation from sequence of protected activities
and subsequent retaliatory action). After filing her complaint in September 2017,
Melgoza complained to HR and her superiors in November 2017 about experiencing
conduct during an interview for a promotion which she felt was offensive to her as a
woman of Mexican heritage. (Exh. SSSS). One of the individuals she complained to,
Dandorph, was both President of Rush and also a hiring manager for the promotion
she was seeking. (Dkt. 167 at 34; PSOF ¶13; Schopp Dep. pp. 187-88). Dandorph
additionally testified that he was offended by her EEOC charges against him.
(Dandorph Dep. pp. 97-98).
In addition, Rush claimed Melgoza was not qualified for the position, but several
months later, an outside search firm reviewing candidates nationwide for the position
recommended Melgoza as a final candidate. The search firm’s presentation of
Melgoza as an objectively qualified candidate supports Melgoza’s theory that Rush’s
reason for not promoting her was pretextual. See Greengrass v. Int'l Monetary Sys.
Ltd., 776 F.3d 481, 486 (7th Cir. 2015) (plaintiff provided evidence of both suspicious
timing and animus, including an email as showing defendant’s disdain for the EEOC
process and animus against plaintiff for filing her complaint); Rowlands, 901 F.3d at
803 (suspicious timing combined with evidence that decision for adverse employment
action was pretextual raised jury question as to retaliation).
Viewing the facts in the light most favorable to Melgoza and considering the
evidence as a whole, she has provided sufficient evidence warranting a trial on the
33
question of whether her September 2017 lawsuit and November 2017 HR complaint
were tied to Rush’s decision not to promote her.
V. Illinois Human Rights Act Claim
Finally, Rush contends that Melgoza cannot bring an IHRA claim because she
failed to exhaust her administrative remedies. Melgoza counters that Rush waived
that affirmative defense by waiting until summary judgment to raise it. “A
defendant’s failure to plead an affirmative defense may result in a waiver of the
defense if the defendant has relinquished it knowingly and intelligently, or forfeiture
if the defendant merely failed to preserve the defense by pleading it.” Reed v.
Columbia St. Mary's Hosp., 915 F.3d 473, 478 (7th Cir. 2019). However the Seventh
Circuit has made clear the rule is “not to be applied rigidly.” Id.
First, in Rush’s answer to Melgoza’s amended complaint, it answered her
allegation that she had “fully exhausted all of her administrative remedies” by
admitting she had “exhausted her administrative remedies with the EEOC” (Dkt. 45
at 24, emphasis added) but denying the remaining allegations of that paragraph. (Id.)
Rush also asserted the affirmative dense that she was barred from relief “sought for
actions outside the scope of her EEOC charge.” (Id. at 37). While neither of these
statements explicitly raised the affirmative defense that Melgoza failed to exhaust
her administrative remedies under the IHRA, Rush did at least provide some notice
of that defense.
Furthermore, Melgoza does not articulate any harm arising from Rush’s delay in
asserting the defense. “We will generally find that the failure to plead an affirmative
34
defense in the answer works a forfeiture ‘only if the plaintiff is harmed by the
defendant’s delay in asserting it.’” Reed, 915 F.3d at 478 (citation omitted). Melgoza
does not point to any evidence in the record that would show she exhausted her
remedies under the IHRA nor does she argue that she has any such documentation
but did not have the opportunity to produce it because of Rush’s delay in raising the
defense. To the contrary, attached to the amended complaint is a letter from the
Illinois Department of Human Rights explaining the procedure before the EEOC and
the Commission, but not otherwise attaching any documentation from the
Commission. (Dkt. 43-1). See Perez v. Cook Cty. Sheriff's Office, 2020 WL 777288, at
*3 (N.D. Ill. Feb. 18, 2020) (explaining that even with the EEOC-IHRA workshare
agreement, an EEOC right to sue letter is not a substitute for a final order from the
Illinois Human Rights Commission); see also Principe v. Vill. of Melrose Park, 2020
WL 4815908, at *4 (N.D. Ill. Aug. 18, 2020) (explaining EEOC and IHRA procedures
and dismissing IHRA claim for failure to exhaust).
Rush’s summary judgment on Melgoza’s IHRA claim is granted. 16
CONCLUSION
For the stated reasons, Defendant Rush’s motion for summary judgment [150] is
granted in part and denied in part. Melgoza’s motion for leave to file her affidavit
[198] is denied. The following claims remain for trial: Count I (Equal Pay Act) based
on three comparators, Counts III and IV (Title VII) based on Melgoza’s mini-RIF
Finally, as to the EPA and Title VII claims, for similar reasons discussed supra related to
the EPA statute of limitations issue, the issues of damages, willfulness and good faith will be
decided by a jury. The Court declines Rush’s invitation to decide those issues as a matter of
law at this stage.
16
35
theory, and Count V (Title VII retaliation) based on Melgoza’s theory that Rush did
not promote her in retaliation for filing her complaint in this case and complaint to
HR in November of 2017.
E N T E R:
Dated: November 9, 2020
MARY M. ROWLAND
United States District Judge
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