Dirickson v. Intuitive Surgical, Inc.

Filing 181

MEMORANDUM Opinion and Order: This Court grants in part and denies in part Defendant's motion for summary judgment 130 . All but Plaintiff's Illinois Whistleblower Act claim will proceed to trial. This Court notes that Plaintiff requests sanctions because she believes Defendant's motion for summary judgment is "frivolous." 150 at 36. This Court does not find Defendant's motion frivolous, and thus, denies Plaintiff's request. Signed by the Honorable Mary M. Rowland on 2/20/2023. (See attached Order for further detail.) Mailed notice. (dm, )

Case: 1:19-cv-07149 Document #: 181 Filed: 02/20/23 Page 1 of 44 PageID #:5582

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MERRILEE DIRICKSON,
Plaintiff,

Case No. 19-CV-7149

v.
INTUITIVE SURGICAL, INC.,

Judge Mary M. Rowland

Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Merrilee Dirickson worked in sales for Defendant Intuitive Surgical,
Inc. until Defendant terminated her. Defendant maintains it did so because of
Plaintiff’s poor work performance. Plaintiff sees it differently, claiming that
Defendant subjected her to a hostile work environment, discriminated against her
because of her sex, and retaliated against her. Plaintiff brings a variety of federal and
state-law claims to seek redress for her alleged injuries. Defendant moves for
summary judgment on all claims. [130]. For the reasons explained below, this Court
grants in part and denies in part Defendant’s motion.
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.

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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 (quoting Fed. R. Civ. P. 56(e)).
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.” Logan v. City of Chicago,
4 F.4th 529, 536 (7th Cir. 2021) (quotation 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 Chicago, 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.
BACKGROUND
As a preliminary matter, Defendant raises evidentiary objections regarding
Plaintiff’s response to Defendant’s statement of facts and statement of additional
facts. This Court maintains broad discretion to enforce the local rules governing
summary judgment motions, Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir.
2014); Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371,

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382 n.2 (7th Cir. 2008), and addresses Defendant’s evidentiary objections before
turning to the facts of the case.
Defendant contends that many of Plaintiff’s responses to Defendant’s
statement of facts contain additional “facts” rather than dispute the cited fact. Id.
This Court has reviewed some of these responses and agrees that Plaintiff often
improperly introduces new additional facts in her responses to Plaintiff’s facts. See
De v. City of Chicago, 912 F. Supp. 2d 709, 715 (N.D. Ill. 2012) (noting that the “the
nonmoving party’s additional facts belong in a separate statement”). One such
example, among many, is contained in Plaintiff’s response to Defendant’s fact 45. See
[151] ¶ 45. Defendant’s fact 45 contains a simple assertion that Plaintiff complained
about gender discrimination in two emails on February 20, 2018 and on March 1,
2018. Id. Instead of simply admitting or disputing these facts, Plaintiff responds to
this fact with seventeen pages of additional factual assertions presenting her account
of events. See id. This is frustrating to the Court, as it appears Plaintiff has “intended
to complicate rather than simplify the court’s task.” Portis v. City of Chicago, 510 F.
Supp. 2d 461, 463–64 (N.D. Ill. 2007). Regardless, given the length of the parties’
submissions, this Court will not strike these responses wholesale, and will instead
evaluate them on a fact-by-fact basis, to the extent pertinent to the analysis.
Defendant argues that fifty-five of Plaintiff’s responses to Defendant’s
statement of facts do not cite to record evidence and impermissibly cross-reference
other facts. [170] at 10. Again, this Court sees no need to dive into these responses at

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the outset and will assess these facts on a case-by-case basis, to the extent material
to its analysis.
Defendant moves to strike the declaration of Plaintiff’s former colleague,
Amanda C., because it lacks foundation, includes hearsay, and states legal
conclusions. [170] at 12. This Court has reviewed Amanda C.’s declaration [153-42]
and agrees that it contains several statements that are not admissible. For instance,
Amanda C. speculates that Defendant permitted one supervisor to remain employed
at the company despite being fully aware that he was a serial sexual harasser. Id. ¶
6. Speculation is, of course, not evidence. Piotrowski v. Menard, Inc., 842 F.3d 1035,
1039 (7th Cir. 2016). Amanda C. also offers impermissible hearsay, stating that she
heard from someone else that the supervisor had sex with a subordinate in a hotel
room. Id. ¶ 7; Fed. R. Evid. 801. This Court disregards these inadmissible statements.
Amanda C.’s declaration, however, does contain many other statements that are not
based on hearsay or speculation and do not state legal conclusions. For example, she
attests to her own experience of being sexually harassed by a supervisor, and of
another experience with coming forward to complain about sexual harassment. [15342] ¶¶ 6–7. These are facts based on her personal knowledge and are not otherwise
inadmissible. Thus, this Court will not strike the entirety of Amanda C.’s declaration.
With these evidentiary issues resolved, this Court turns to the background
facts, which it takes from Defendant’s statement of facts (DSOF) [132], Plaintiff’s
response to Defendant’s statement of facts (PRSOF) [151] and statement of additional

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facts (PSAF) [152], and Defendant’s response to Plaintiff’s statement of additional
facts (DRSAF) [172].
I. The Parties
Defendant operates a robotics company that sells the DaVinci Robot; the Robot
assists surgeons in performing minimally invasive surgery. DSOF ¶ 1. Defendant
employed Plaintiff from April 2013 to January 2019, most recently as an Area Sales
Manager (ASM) in Chicago. Id. ¶ 2.
Defendant initially hired Plaintiff in 2013 as a Clinical Sales Representative
(CSR) and promoted her twice within two years—first to Senior CSR in 2014, and to
ASM in 2016. PSAF ¶ 1. In 2014, Plaintiff attained 103% of her sales quota; in 2015,
she reached 100% of her sales quota. Id. In 2016, she attained 115% of her sales
quota and ranked 13th out of 27 ASMs nationally. Id. As a CSR and senior CSR,
Plaintiff grew the company’s general surgery business in her territory over 600%. Id.
¶ 2.
II. ASM Responsibilities
When Defendant made Plaintiff an ASM in 2016, she moved from Defendant’s
“clinical” to “capital” side of its business. DSOF ¶ 7. While they collaborate with each
other, the “clinical” sales force primarily builds relationships with individual doctors
and promotes the use of existing Robots for surgeries, while the “capital” sales force
typically sells new or upgraded Robots to hospitals. Id. ¶ 8. Defendant’s “capital” sales
strategy applicable to ASMs includes the fundamental “5 Pillars” sales approach: (1)
clinical selling; (2) QTI (quantify the impact); (3) MDE (market development event)

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strategy; (4) impending events; and (5) executive discovery and validations. Id. ¶ 10.
The first pillar—clinical selling—requires ASMs to identify, target, and engage with
surgeons with the goal of developing them into advocates of Defendant’s robotic
products. Id. ¶ 11. The second, QTI, entails observing and meeting with surgeons who
use Defendant’s products, analyzing their surgical data to quantify the value of the
Robot, and presenting each surgeon with individualized, quantitative analysis
demonstrating the medical and economic impact of Defendant’s Robots. Id. ¶ 12.
Pillars three and four—MDE strategy and impending events—require ASMs to assist
surgeons in planning and presenting the data gathered during the second pillar at
educational events. Id. ¶ 13. And the final pillar, executive discovery and validations,
requires ASMs to present to hospital executives. Id. ¶ 14.
III. Plaintiff’s Performance As An ASM
In 2016, Plaintiff’s first year as an ASM, she ranked 14th out of 29 ASMs and
exceeded her quota. Id. ¶ 15.
According to Defendant, in 2017, Plaintiff’s then-manager, Andy Stoner,
determined that Plaintiff was having difficulty utilizing the “capital” sales force’s
fundamental sales strategy which impacted her performance. Id. ¶ 16. In October
2017, Stoner wrote himself an email, documenting a conversation he claims to have
had with Plaintiff. [133-19]; DSOF ¶ 19. In it, he wrote: “Since she is not happy in the
ASM role, we discussed her moving forward in the ASM role or moving to a CSR role.
. . . I told her that [she] has high support to continue [working] with [Defendant] but
that there were some concerns with her ability to do the ASM job. At that time she

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asked me if I could get Chip to waive her non-compete clause.” [133-19] at 2. Plaintiff
disputes that she said the things Stoner wrote, particularly with respect to her
unhappiness in the ASM role. PRSOF ¶ 19. According to Plaintiff, when she spoke
with Stoner in October 2017, she was asking him to support her with the all-male
clinical team and that the male clinical sales managers refused to align, partner, and
collaborate with her. Id.
By the end of 2017, hospital administrators began to indicate that Plaintiff
should not be included in future conversations about sales. DSOF ¶ 21. Toward the
end of 2017, a chair of a hospital’s surgical division said that Plaintiff was harming
the ability to move forward and was “too pushy.” [133-16] at 40. Another, a vice
president of surgical services, asked that Plaintiff “take a backseat” on any capital
conversations. Id. at 41. According to Defendant, by December 2017, Plaintiff was
“way behind” her target sales, finishing 46% to quota. DSOF ¶ 22. Plaintiff does not
dispute the 46% figure, but insists that 2017 was a “rebuilding year” after a successful
year in 2016. PRSOF ¶ 22.
At the end of 2017, as a result of organizational changes, the management of
the Chicago market transitioned from Area Vice President of the Eastern U.S., Chip
Bowman, to Area Vice President of the Western U.S., Lucas Docter. DSOF ¶ 23.
Docter testified that he spoke with Bowman about Plaintiff as part of the transition.
[133-2] at 19–20. Bowman told Docter that Stoner had been working with Plaintiff on
her development; that the company allowed her to pursue employment with a
competitor, but she did not get the job; and that afterward, Bowman and Stoner

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planned “to put [Plaintiff] on a performance improvement plan.” Id. at 21. Bowman
also told Docter that Plaintiff “was not performing the fundamentals or the key
activities of the role.” Id. at 25. In addition, Docter received reports from Lindsay
Otradovec (the Chicago area Clinical Sales Director at the time) that Plaintiff was
canceling meetings with doctors, was difficult to reach, and was generally
unprepared. [133-12] ¶ 22. Docter also heard from Otradovec that two hospital
executives in Plaintiff’s territory had told Otradovec that they no longer wanted to
work with Plaintiff. Id. ¶ 23.
As part of the company’s realignment, Docter promoted Victor Ebong to Area
Sales Director in the Western Region; as a result, Ebong took over management
responsibilities for Stoner. DSOF ¶ 25. Until that time, Ebong worked in Denver and
had no responsibility for the Chicago market. Id. Upon the transition, Stoner relayed
to Ebong that Plaintiff “was having struggles in the ASM jobs,” that she “wasn’t sure
if she wanted to do the ASM job anymore,” and that “she was actually interviewing
with another robotics company.” [133-9] at 11–13. Stoner told Ebong that “I felt like
there was going to be some performance management that was going to be taking
place if her and I were still aligned.” Id. at 13.
Defendant ranked Plaintiff 37th out of 37 ASMs in 2017. DSOF ¶ 27; [133-2]
at 4. Defendant based this ranking on several factors including quota attainment,
expanding Defendant’s reach, total number of Robots sold, and number of strategic
accounts. DSOF ¶ 27. Subsequently, Brett Kirouac (a male individual), manager of
sales operations and analytics, recommended moving sales for Northern Chicago from

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Plaintiff to a male ASM, Mark N., who had sold 200% to quota in 2017. Id. ¶¶ 28, 29.
Docter ultimately agreed with Kirouac’s recommendation. Id. ¶ 29. As Ebong
testified, although Docter made the ultimate decision, the decision was reached after
input from a group of people including Kirouac, Lindsey Otravodec (the clinical sales
director), and Ebong himself. [133-15] at 25–26. Although the realignment did not
affect Plaintiff’s base or the target commission she could earn, DSOF ¶ 32, Plaintiff’s
actual compensation suffered by more than half a million dollars, PRSOF ¶ 32.
In Ebong’s first in-person meeting with Plaintiff on January 5, 2018, Ebong
explained that Defendant was realigning some of Plaintiff’s accounts to Mark N.
DSOF ¶ 33. As Ebong recalls, upon hearing the news, Plaintiff “started saying stuff
like I’ve seen the organization try and do this before, you know, to female employee
or push them out.” [133-15] at 33. On January 7, 2018, Ebong advised Docter that he
thought the company should place Plaintiff on a performance plan. DSOF ¶ 37.
A fundamental aspect of Defendant’s management of its sales force involves
“field rides,” where managers accompany and observe their direct reports on the road
by attending meetings during a several days’ trip and providing feedback. Id. ¶ 38.
Plaintiff testified that during Ebong’s field ride with her in January 2018, he
“intimidated me, he berated me, he discriminated against me” in delivering feedback
to her. [133-1] at 55, 59, 140; DSOF ¶ 40.
IV. Plaintiff’s Continued Performance and Complaints in 2018
On February 5, 2018, Plaintiff called ComplianceLine, a complaint hotline that
Defendant uses, and alleged that Ebong had engaged in unethical conduct during a

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meeting four days prior by bribing a doctor with grant money in return for the doctor
agreeing to audit a training course. DSOF ¶ 41; PRSOF ¶ 41. Following receipt of this
hotline complaint, Nancy Hill, Defendant’s Vice President of Employee Relations,
asked Henry Pastor, the Director of Human Resources, and his report, Sarah Sirko,
to conduct an investigation into Plaintiff’s complaint. DSOF ¶ 42. Pastor and/or Sirko
interviewed Plaintiff, Kamilah Brewton (Plaintiff’s team member who was present
during the meeting in which Ebong allegedly bribed a doctor), Ebong, and the doctor
in question. Id. ¶ 43. Pastor and Sirko also reviewed documentation. Id. They
concluded that Ebong had not committed a compliance violation and had not engaged
in any wrongdoing. Id.
On or around February 20, 2018, and in a follow up email on March 1, 2018,
Plaintiff complained to Pastor and Sirko that Ebong had engaged in gender
discrimination when he verbally harassed her in a public restaurant, interrogated
her, and mischaracterized her performance, and that Defendant discriminated
against her when it realigned her territory and gave some of her accounts to Mark N.
Id. ¶ 45. Plaintiff also complained that Ebong had discriminated against two female
employees he previously managed, Gina Steinhoff and Jennifer Lehmann. Id.
Docter took over Plaintiff’s management at the end of February 2018. Id. ¶ 47.
Plaintiff asserts, however, that in retaliation for her complaints against Ebong,
Docter issued Plaintiff a performance improvement plan (PIP) under Ebong’s
supervision and required Plaintiff to continue reporting to Ebong. PRSOF ¶ 47.

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Pastor and Sirko initiated an investigation into Plaintiff’s February and March
2018 complaints and interviewed several current and former employees—Plaintiff,
Lehmann, Steinhoff, Adam Clark, Jarrod Bowers, Docter, Ebong, Otradovec, Stoner,
and Kirouac. DSOF ¶ 48. Lehmann and Steinhoff corroborated that Ebong had been
verbally aggressive with them and felt that he had unfairly managed them. Id. ¶ 49.
As Lehmann testified in her deposition, during a work trip Ebong leaned into her and
aggressively spoke to her. [153-15] at 13. Lehmann testified she was afraid for her
physical safety. Id. at 14. Steinhoff testified that Ebong talked about the size of his
genitalia at a work outing. [153-16] at 37–38. She also testified about an altercation
at a meeting where Ebong was “using his voice to belittle and turn it into my
performance, my unwillingness to do certain things, and ultimately that I just wanted
to leave the company and go get married.” [153-16] at 10. Steinhoff testified that she
believed Ebong was disparaging her because he knew she was planning to move to a
small town with her fiancé. Id. at 13. After the investigation, Pastor and Sirko
concluded that Ebong was overly direct and confrontational in his management of
Plaintiff, but that his conduct was not based on her gender. DSOF ¶ 52. Plaintiff
disputes that Pastor and Sirko conducted a good faith investigation. PRSOF ¶ 52.
In or around February or March 2018, Docter met with Ebong and coached him
on issues he had with his interactions with team members. DSOF ¶ 54.
In early March 2018, Docter conducted a field ride with Plaintiff, during which
he concluded she needed to improve her application of the 5 Pillars sales strategy.
[133-12] ¶ 24. According to Docter’s declaration, she underperformed during this field

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ride. Specifically, Plaintiff did not reach out to a local team in another state with
which they were coordinating; the slide decks she presented did not have commitment
dates for the surgeons and hospitals, as required under Pillar 4; and the slide deck
had information about the wrong Robot. Id. Docter also assessed that Plaintiff failed
to effectively utilize and implement the first three of the 5 Pillars, such that when
she would try to get to Pillar 5 (validations from a hospital’s C-suite), she would suffer
from not having done the legwork. Id. ¶ 25. On March 8, 2019, Docter emailed
Plaintiff about a specific meeting with executives and explained that Plaintiff’s slide
deck missed key information about a Robot and omitted dates of upcoming planned
market events, and instructed it was important to have this information in a meeting
with hospital executives and surgeons. Id. ¶ 26.
Docter issued Plaintiff a PIP on March 27, 2018 that instructed Plaintiff to
focus her efforts on the 5 Pillars. Id. ¶ 27. Docter issued Plaintiff a Final Written
Warning (FWW) on April 27, 2018. DSOF ¶ 66. Docter says he did so because Plaintiff
did not make sufficient progress on the specific actions outline in her PIP after thirty
days. [133-12] ¶ 34.
V. Plaintiff’s Medical Leave and Return
From May 2018 to November 2018, Plaintiff took a medical leave of absence.
DSOF ¶ 68. Plaintiff says she required the leave because of “severe stress and anxiety
caused by Defendant.” PSAF ¶ 39. Upon her return, Docter kept Plaintiff’s PIP and
FWW in place; however, Docter did not require her to complete the FWW within
thirty days of her return and instead gave her thirty days to reacclimate herself with

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the territory and an additional thirty days to meet her PIP requirements. [133-12] ¶
37.
Shortly after her return from leave, on November 8, 2018, Plaintiff sent an
email to Pastor, Docter, and Ebong stating that she did not want to have any contact
with Ebong and that she was “physically afraid” of Ebong. DSOF ¶ 70. Ebong emailed
a response to Docter and Pastor stating, among other things, that he had “never
physically threatened” Plaintiff, that he did not think it was a good idea for him to
communicate with Plaintiff “in any way, shape, form or fashion,” and that he could
not continue to have a working relationship with her. Id. Defendant maintains that
as a result, Docter decided (after consulting with Pastor), that Ebong would no longer
have contact with Plaintiff and that Docter would be responsible for all of Plaintiff’s
management as of November 9, 2018. Id. ¶ 72. Plaintiff did, however, remain on
Ebong’s team, and thus, Docter continued to communicate with Ebong, including
about how she progressed in her PIP. [133-2] at 90.
On November 12, 2018, Plaintiff emailed Pastor, Docter, and Sirko, restating
her belief that her PIP was discriminatory and that she was pursuing her claims
“through the legal process.” DSOF ¶ 73. Less than a month later, on December 5,
2018, Docter informed Plaintiff she was given a final thirty days to comply with her
FWW and detailed the areas where she had not made progress against the 5 Pillars.
Id. ¶ 74. Docter further noted other mandatory metrics that Plaintiff failed to meet
in the previous four weeks, including: (1) only providing two updates to her
Chessboard pipeline management tool in weekly reports when Defendant expected

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her to provide four; (2) failing to provide any pre-call planning sheets when Defendant
expected to provide three completed pre-call planning sheets each day; (3) only
sending one weekly recap on her performance to plan (which was twenty-one days
later) when Defendant expected her to send four recaps on a weekly basis; (4) failing
to update her MDE plan; and (5) failing to track her “Milestone Activities,” which led
Docter to believe that Plaintiff had completed only two of the weekly activities, when
he expected her to perform fourteen per week. Id. ¶ 75. In November and December
2018, Docter received reports from members of his Chicago team, including
Otradovec, stating that Plaintiff was missing calls, canceling appointments, failing
to respond to emails, failing to visit hospitals, and failing to show up to scheduled
dinner meetings with customers and colleagues. [133-12] ¶ 41.
Plaintiff sent Docter and Pastor an email on December 14, 2018. [133-69]. In
it, she stated that “the re-acclimation process was extensive and the expectation that
I complete the weekly activities my first week back is unrealistic.” Id. at 2. She also
said: “Notwithstanding your unfair criticism, I believe I am currently ranked #31 out
of 36 ASMs and . . . I have forecasted five deals that will close in December.” She
continued that “I am surprised and disappointed that you continue to threaten to fire
me” and “have no doubt that this would not be happening to me if I were a man or
had not reported my concerns of unlawful treatment.” Id. at 3.
According to Docter, he became concerned that Plaintiff was not even trying to
make progress and accordingly directed a review of her email volume, mileage, and
credit card usage for the months of November and December 2018 and compared

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them to the same data from 2017. [133-12] ¶ 42. The review revealed that Plaintiff’s
work activity “was very low” in December 2018; she also had not logged any mileage
for November or December 2018, and her email activity fell off significantly. Id. ¶ 43.
On December 27, 2017, Outset Medical, Inc. offered Plaintiff a job, and she
accepted the position on December 31, 2018, while still employed with Defendant.
DSOF ¶ 81. Plaintiff did not advise anyone at the company that she accepted another
position. Id. ¶ 82. According to Defendant, she missed a sales meeting with hospital
executives on January 3, 2019 and booked a vacation to St. Lucia for January 7–12,
2019, which coincided with Defendant’s national sales meeting where in-person
attendance was mandatory. Id. Plaintiff, for her part, disputes that she “missed” the
sales meeting, as she texted her colleague Andrew Geers that she would be missing.
PRSOF ¶ 82.
VI. Plaintiff’s Termination
Docter terminated Plaintiff’s employment on January 3, 2019. DSOF ¶ 83. He
asserts that he made this decision because of Plaintiff’s “failures to make material
progress on the objectively measurable expectations in her PIP, FWW, and her overall
lack of sales activity.” [133-12] ¶ 45. Although he consulted with Pastor and internal
legal counsel, Docter made the final decision to terminate Plaintiff. Id. ¶ 46. Docter
did not confer with Ebong about his decision to terminate Plaintiff. Id. ¶ 47.
In December 2018, Ebong complained of discrimination against Plaintiff via
email. DSOF ¶ 58. When Pastor spoke to Ebong about his complaint in January 2019,

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Ebong said he understood Dirickson had been terminated, and that because she had
left the company, he did not see a reason to pursue his complaint. Id.
VII. Plaintiff’s
Environment

Additional

Evidence

Relating

to

Hostile

Work

Plaintiff claims Defendant subjected her and other female colleagues to a
hostile work environment. As to herself, Plaintiff claims that Ebong bragged to her
that his wife was a supermodel from Europe whom he had met when he was a
basketball player. PSAF ¶ 29. 1
Plaintiff also points to evidence of other female employees’ experiences. 2 As
one example, a male supervisor, Adam Clark, approached a female subordinate, put
his arm around her waist, and tried to kiss her several times at a work event in 2017.
PSAF ¶ 10; DRSAF ¶ 10. Pastor and Sirko investigated the subordinate’s assault
complaint against Clark; Pastor then issued Clark a final written warning. PSAF ¶
11.

Plaintiff also includes facts regarding an incident that occurred in January 2018 at a company
meeting in Houston, Texas, but this Court disregards these facts as inadmissible. See PSAF ¶¶ 26–28.
The facts rely upon the complaint’s allegations which are insufficient on summary judgment. Beardsall
v. CVS Pharmacy, Inc., 953 F.3d 969, 972 (7th Cir. 2020) (cautioning that the non-moving party must
“go beyond the pleadings and support its contentions with proper documentary evidence.”) (quotation
omitted). Fact 26 also cites to some underlying deposition testimony, but this Court’s review of the
deposition testimony reveals that they do not support the asserted fact.
1

Plaintiff recounts the experience of one of those employees, Stephanie H., by citing to Stephanie H.’s
EEOC charge. See PSAF ¶¶ 6–9. Plaintiff also attempts to submit evidence regarding another female
employee, Marietta D., citing to Marietta’s EEOC charge. PSAF ¶¶ 13–14. Because statements in an
EEOC charge constitute inadmissible hearsay, this Court disregards these facts. See, e.g., Stolarczyk
ex rel. Est. of Stolarczyk v. Senator Int'l Freight Forwarding, LLC, 376 F. Supp. 2d 834, 843 nn. 6 &
11 (N.D. Ill. 2005) (noting that statements from an EEOC charge are not admissible).
2

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Plaintiff submits the declaration of a female employee, Amanda C. [153-42]. In
it, Amanda states that Matt Robinson sexually harassed her after a party held at
Adam Clark’s house in 2017. Id. ¶ 3. After the party, Amanda went back to a hotel
bar for a drink with another employee; Robinson approached, appearing “extremely
drunk,” and commented that Amanda was “so sexy” and “so beautiful.” Id. According
to Amanda, Robinson repeatedly attempted to physically touch her and said multiple
times “let’s go up [to] my room.” Id. Amanda states she made clear to him that his
comments and physical touching were not welcome. Id. The bartender told Robinson
to “back off.” Id. Amanda did not report this incident. Id. ¶ 4.
Amanda claims Adam Clark was a serial “predator” and habitual drunk and
harassed multiple women at the company. Id. ¶ 5. Amanda personally witnessed
Clark stick his hand up the skirt and touch the thighs of Samantha, a clinical sales
manager, one of his direct reports. Id. Moreover, Amanda attests, Clark was drunk
at work meetings and functions “dozens of times.” Id. ¶ 6. He would “lean into women
too close, tell them how attractive they wer[e] and/or otherwise give them uninvited
and unwanted sexual attention.” Id. He did this to Amanda on one or two occasions.
Id.
Amanda came forward on behalf of multiple women at the company to report
Clark’s sexual harassment toward the end of 2021. Id. ¶ 7. Amanda states that she
found out that Clark was found to have violated the company’s code of conduct and
advised he would be fired, id., but then on a Zoom call that she attended, Clark
announced he was retiring for health reasons, id. ¶ 8. Amanda believes that

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Defendant retaliated against her for reporting against Clark. Id. ¶ 11. Specifically,
the company’s vice president told her that she was being prepared for a promotion
before she participated in the Clark sexual harassment investigation; after she
participated, however, she was told she was no longer “in line for promotion.” Id.
VIII. Defendant’s Discipline Policy and Treatment of Male Employees
Defendant asserts that the company has no formal progressive discipline
policy. [133-12] ¶ 33. Pastor testified, however, that Defendant implemented a
“formal progressive discipline policy” within its sales force that was in place in 2018.
[153-1] at 13.
As of the third quarter of 2016, male ASM Chris Andrews ranked last among
all ASMs nationally at the same time Plaintiff was ranked fourteenth. PSAF ¶ 30.
Andrews ended 2016 ranked 26 out of 27 and had only attained 60% of his quota. Id.
Defendant did not give Andrews a PIP or any performance management for his
performance in 2016. Id. Defendant did give Andrews a “Verbal Warning Letter” in
the fall of 2018. [133-12] ¶ 32 & pp. 16–18. As Ebong testified, a “Verbal Warning
Letter” is “one step” before a PIP. [153-9] at 55. According to the “Verbal Warning
Letter,” Andrews’ “performance, behaviors, and selling activities” were “sub
optimal” and below expectations in 2018. [133-12] at 17. Andrews also had drafted
a letter on behalf of the doctor and showed it to people without getting approval from
the doctor, causing the doctor to ask to no longer work with the company. [153-9] at
56. Andrews resigned in March 2019. [133-5] at 20. In November 2018, Andrews
verbally complained to the company that Ebong was a “bully” who “pushes so hard

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that he makes people feel uncomfortable.” DSOF ¶ 55. Andrews’ complaints about
Ebong were corroborated by several of Ebong’s current and former male and female
reports—who stated that Ebong was aggressive, confrontational, and condescending
in his communications with them. Id. ¶ 56.
ASM Brian Brant received a written warning in 2015 or 2016 from his ASD,
Tyler Boob, because “his alignment with his counterparts was poor.” [133-12] at 12.
Brant did not move past the written warning and voluntarily resigned. Id. at 13.
ASM Mike Hodgkiss failed to meet his quota attainment for two consecutive
years—in 2016, he attained 60% of his quota, and in 2017, he attained 67% of his
quota. PSAF ¶ 31. Hodgkiss was not given a PIP until April 2018. Id.
From 2015 to October 2020, ten male ASMs reporting to Docter directly or
indirectly (through another manager), were issued written warnings or PIPs; none,
however, were given a FWW like Plaintiff. Id. ¶ 33. According to Docter, prior to
Plaintiff, every person he put on a PIP either improved in the ways the PIP required
of them or they resigned. [133-12] ¶ 29.
IX. Alleged Retaliation
On February 26, 2018, Plaintiff raised her belief with Docter, Pastor, and Sirko
that Ebong was purposely leaving her out of communications—specifically in his
weekly reports—and stated in email to them that she had “personally secured more
than 50% of the attendees at a VIP event at Defendant’s corporate office, secured all
travel and logistics for nearly all the participants, led a lab for all surgeons,
participated in the VIP session, and led a recap call about the event” and further

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stated in her email that she “worked with surgeons” to develop and craft the Cadaver
Lab, “secured the lab space”, “booked” a doctor to lead a course, and worked with
various department chairs to ensure participation from all specialties. PSAF ¶ 37.
Ebong, in his recap of the event, did not mention Plaintiff. Id. Pastor and Docter
responded by claiming that Ebong was following their instructions to limit his
communication with or about her while they investigated her complaints of
discrimination. Id. ¶ 38.
On November 8, 2018, after Plaintiff returned to work from medical leave,
Otradovec reported to Ebong that Plaintiff had adjusted some call times with CSMs
because Ebong said that he had to join them with her; Otradovec asked Ebong if it
was true that he asked Plaintiff to join the calls with CSMs. Id. ¶ 39. Ebong responded
to Otradovec that it was not true: “Not true regarding need to adjust call times for me.
Told her it was unlikely I would be able to join due to ASD all day meeting and my
vacation Thursday and Friday. I asked her to CC me on follow up. I told her this in
writing and verbally on the phone call yesterday morning. Thank you for keeping me
in the loop.” Id. The email from Ebong to Plaintiff did not, however, mention Ebong’s
vacation, and rather said “I will jump on as much as I can over the next day or so. I
will be in an All Day ASD meeting beginning tomorrow.” Id. ¶ 40. According to
Plaintiff, Docter later chastised her when she submitted her activity report for the
week, stating: “I did not join due to customer meetings, and [Ebong] was on vacation,
both of which were communicated to you.” Id. ¶ 41.

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On February 15, 2018, ten days after Plaintiff reported Ebong’s alleged ethics
violation for bribing a doctor, Ebong sent Pastor an email with the subject “Merrillee
Follow Up & Next Steps” in which he wrote he was “concerned with her performance
and pattern of dishonesty as hindrances to our business and damaging our culture”
and asked Pastor and human resources to “address[ ] this with [Plaintiff] during the
debrief.” Id. ¶ 44.
Plaintiff received a letter on December 24, 2018 from Ebong’s lawyer titled
“Cease and Desist – False Accusations.” [155-32]. The letter demanded that Plaintiff
stop making statements that were defamatory and harassing against Ebong. Id. at 2.
On January 4, 2019, Plaintiff forwarded the letter to Pastor and Docter, stating she
was “extremely concerned over how the company handles my concerns of
discrimination and retaliation.” Id. at 1. Ebong based his letter on information he had
learned from human resources (Pastor and Sirko) while they investigated Plaintiff’s
discrimination and retaliation complaints. PSAF ¶ 46.
On December 27, 2018, Plaintiff, through her lawyer, wrote to Defendant’s
attorneys that Ebong’s letter was “obvious retaliation” for Plaintiff’s complaints of
discrimination and retaliation. [153-23] at 1. Defendant’s attorneys responded the
same day that “Intuitive takes seriously and fully investigates all complaints, as it
will do with the complaints raised by both Ms. Dirickson and Mr. Ebong.” PSAF ¶ 47.
X. Plaintiff’s Claims
Plaintiff brings a five-count complaint. Count I alleges sex discrimination
under disparate treatment and hostile work environment theories in violation of Title

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VII of the Civil Rights Act of 1964; Count II alleges retaliation in violation of Title
VII; Count III alleges sex discrimination under the Illinois Human Rights Act (IHRA);
Count IV alleges retaliation under the IHRA; Count V alleges retaliatory discharge
in violation of Illinois law; and Count VI asserts a violation of the Illinois
Whistleblower Act. [1]. Defendant has moved for summary judgment on all counts.
[130].
ANALYSIS
I.

Sex Discrimination – Disparate Treatment
The Court begins with Plaintiff’s sex discrimination claim under Title VII and

the IHRA. Courts apply the well-established Title VII legal standard to IHRA
discrimination claims. Mahran v. Advoc. Christ Med. Ctr., 12 F.4th 708, 714 (7th Cir.
2021) (observing that the “legal standard is the same under” Title VII and the IHRA).
Plaintiff may defeat summary judgment by proceeding under one or two cognizable
frameworks for evaluating discrimination claims under the IHRA.
First, Plaintiff may proceed under the burden-shifting framework the Supreme
Court developed in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Lewis v.
Ind. Wesleyan Univ., 36 F.4th 755, 759 (7th Cir. 2022). Under McDonnell Douglas, a
plaintiff must first establish a prima facie case by showing that: “(1) he belongs to a
protected class; (2) he met his employer’s legitimate expectations; (3) he suffered an
adverse employment action; and (4) another similarly situated employee outside of
his protected class received better treatment from his employer.” Igasaki v. Ill. Dep’t
of Fin. & Pro. Regul., 988 F.3d 948, 957 (7th Cir. 2021); see also Chatman v. Bd. of

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Educ. of City of Chi., 5 F.4th 738, 746 (7th Cir. 2021). Once the plaintiff establishes
a prima facie case, the burden then “shifts to the employer to offer a
nondiscriminatory motive”; if the employer does this, “the burden shifts back to the
plaintiff to show that the employer’s stated reason was a pretext.” Igasaki, 988 F.3d
at 957 (quoting Purtue v. Wis. Dep’t of Corr., 963 F.3d 598, 601–02 (7th Cir. 2020),
reh’g denied (July 31, 2020)).
In Ortiz v. Werner Enterprises, Inc., the Seventh Circuit introduced an
alternative to the McDonnell Douglas framework. See Palmer v. Ind. Univ., 31 F.4th
583, 589 (7th Cir. 2022). Under Ortiz, this Court asks simply “whether the evidence
would permit a reasonable factfinder to conclude that the plaintiff’s [membership in
a protected class] . . . caused the discharge or other adverse employment action” at
issue. 834 F.3d 760, 765 (7th Cir. 2016); see also Nigro v. Ind. Univ. Health Care
Assocs., Inc., 40 F.4th 488, 491 (7th Cir. 2022). Under Ortiz, courts assess the
evidence as a whole, rather than asking whether any particular piece of evidence
proves the case by itself. Lewis, 36 F.4th at 760. The Seventh Circuit’s decision in
Ortiz, however, “did not alter ‘McDonnell Douglas or any other burden-shifting
framework.’” McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 807 (7th Cir.
2017) (quoting Ortiz, 834 F.3d at 766).
Here, Plaintiff does not proceed under the McDonnell Douglas framework,
[150] at 16, so this Court will assess the evidence under the holistic Ortiz standard.
Under Ortiz, Plaintiff must adduce sufficient evidence for a reasonable jury to
conclude that her sex caused an adverse employment action. Inojosa v. Bd. of Trustees

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of City Colleges of Chi., Cmty. Coll. Dist. 508, No. 20 C 1114, 2022 WL 4604578, at *4
(N.D. Ill. Sept. 30, 2022) (citing Ortiz, 834 F.3d at 765). Because there is no direct
evidence of discrimination here, Plaintiff must present circumstantial evidence
supporting an inference of intentional discrimination. As the Seventh Circuit has
explained, “three broad types” of circumstantial evidence meet this burden:
ambiguous or suggestive comments or conduct; better treatment of similarly-situated
comparators; and dishonest employer justifications for disparate treatment. Joll v.
Valparaiso Cmty. Sch., 953 F.3d 923, 929 (7th Cir. 2020). Plaintiff contends she has
sufficient evidence that Defendant took adverse employment actions—her
termination, her PIP and FWW, her territory realignment—based on her sex. The
Court considers each alleged adverse action below.
A.

PIP/FWW Leading to Termination

Generally, a PIP or FWW, without more, does not qualify as an adverse
employment action in the discrimination context. See Leghari v. Wilkie, No. 1:19-CV360, 2022 WL 3700877, at *5 (N.D. Ind. Aug. 25, 2022) (noting that the Seventh
Circuit has “strongly suggested” that a PIP will rarely—if ever—be an adverse
employment action on its own) (citing Smart v. Ball State Univ., 89 F.3d 437, 442 (7th
Cir. 1996)). But here, the PIP and FWW is not “unaccompanied by [any] tangible job
consequence,”

because

in

this

case,

it

justified

Plaintiff’s

discharge—an

unquestionably adverse employment action. Nwoke v. Univ. of Chi. Med. Ctr., No. 16
C 9153, 2020 WL 1233829, at *10 (N.D. Ill. Mar. 13, 2020) (alteration in original)
(quotation omitted). Thus, although the PIP and FWW are not themselves adverse

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employment actions, the Court “will consider the evidence” of these vehicles of “pretermination scrutiny . . . to determine whether [they] support[] an inference that she
was terminated for a discriminatory reason.” Id. at *11.
Here, Plaintiff adduces several different pieces of circumstantial evidence that
raise an inference that Defendant’s disciplinary actions and subsequent termination
were motivated by her sex. First, she points to evidence that at least one male ASM
with performance issues received lesser forms of discipline. Defendant disciplined
Plaintiff the first year she missed her sales quota—2017—by placing her on a PIP. In
contrast, male ASM Chris Andrews—who reported to Ebong and Docter, like
Plaintiff—ranked 26 out of 27 ASMs at the end of 2016 and only attained 60% of his
quota. PSAF ¶ 30. Defendant did not give Andrews a PIP for missing his quota for
that year. Rather, Defendant waited until the fall of 2018 before issuing Andrews a
“Verbal Warning Letter,” which according to Ebong, was “one step before” a PIP. [1539] at 55; [133-12] ¶ 32 & pp. 16–18.
Plaintiff attempts to point to other male comparators to demonstrate that
Defendant treated her male counterparts more favorably. She points to Brian Brant,
an employee who had vague performance issues and was issued a warning, not a PIP,
before resigning. PRSOF ¶ 63. Brant reported to Docter. [170] at 16. She does not
detail the “performance issues,” however, and thus does not demonstrate that Brant
is a suitable comparator. See Johnson v. Advocate Health and Hosps. Corp., 892 F.3d
887, 896–97 (7th Cir. 2018) (affirming grant of summary judgment because plaintiff
provided

insufficient

evidence

of similarly situated employees).

Plaintiff

also

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contends that male employees Mike Hodgkiss and Kris Benson received lesser
discipline for similar performance issues. [150] at 11. But as to these employees,
Plaintiff does not present any evidence that they received discipline from Docter
and/or Ebong, as she did. Hodgkiss and Benson therefore do not make for suitable
comparators. See Orton-Bell v. Indiana, 759 F.3d 768, 777 (7th Cir. 2014) (instructing
that a similarly situated comparator must at least deal with the same supervisor);
Jasnic v. Bisco, Inc., No. 1:20-CV-02507, 2022 WL 971606, at *6 (N.D. Ill. Mar. 31,
2022) (holding that the absence of a shared disciplinary decision-maker with Plaintiff
foreclosed a finding that five employees were similarly situated comparators).
Notwithstanding, Plaintiff has identified one male comparator, Andrews,
whom the Defendant arguably treated more favorably in terms of discipline. The jury
could draw an inference of discriminatory intent based on this evidence. See Harden
v. Marion Cnty. Sheriff's Dep’t, 799 F.3d 857, 865 (7th Cir. 2015) (noting that
“selective enforcement” can raise an inference of discrimination) (quotation omitted);
see also, e.g., Principe v. Village of Melrose Park, No. 20 CV 1545, 2022 WL 488937,
at *10 (N.D. Ill. Feb. 17, 2022) (holding that “inconsistent disciplinary practices,”
among other pieces of evidence, supported the plaintiff’s discrimination claim).
Plaintiff also adduces circumstantial evidence that Defendant gave a dishonest
reason for disciplining her and ultimately terminating her. This dovetails with the
comparator inquiry. That is, Defendant maintains that the reason it put her on a PIP
and FWW and eventually terminated her was based solely on performance. The
record supports this account: by the time Defendant put Plaintiff on the PIP, it

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believed she was not performing well and had not succeeded on the 5 Pillars. And by
the time Defendant terminated Plaintiff, Defendant believed Plaintiff did not make
progress on the 5 Pillars and was not making sufficient sales. A jury could believe
that Defendant disciplined and terminated Plaintiff because of her subpar work
performance. Yet, as discussed, Plaintiff has offered countervailing “evidence that
[Andrews, a male comparator] received better treatment . . . under similar
circumstances” such that the Defendant’s justifications for disciplining Plaintiff “lack
trustworthiness.” Whitmore v. Wheaton Vill. Nursing & Rehab. Ctr., LLC, No. 20 CV
1732, 2022 WL 1422754, at *6 (N.D. Ill. May 5, 2022). A jury could reasonably infer
discriminatory intent based on the disparate treatment.
As additional evidence of discriminatory intent, Plaintiff offers an email she
sent to Docter and Pastor on December 14, 2018, shortly before her termination. [13369]. In that email, she discusses being ranked #31 out of 36 ASMs and forecasting
five deals that will close in December. Id. Crediting Plaintiff’s account, a jury could
believe that Plaintiff’s performance did not suffer as much as Defendant claimed it
did and that Defendant’s concerns about Plaintiff’s performance were mere pretext
for discrimination. See Giacoletto v. Amax Zinc Co., 954 F.2d 424, 428 (7th Cir. 1992)
(concluding that a jury could infer discrimination where an employer implemented a
“subjective employment decision” contradicted by “objective evidence” of the
plaintiff’s capabilities).
Moreover, “behavior toward or comments directed at other employees in the
protected group is one type of circumstantial evidence that can support an inference

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of discrimination.” Vega v. Chi. Park Dist., 954 F.3d 996, 1005 (7th Cir. 2020)
(internal quotation marks and citation omitted); see also Henderson v. Shulkin, 720
F. App’x 776, 784 (7th Cir. 2017). Here, Plaintiff has pointed to evidence of other
employees’ experiences with a male supervisor, Adam Clark, who assaulted a female
subordinate at work event in 2017. PSAF ¶ 10; DRSAF ¶ 10. Amanda C., Plaintiff’s
colleague, also claims to have been sexually harassed by a male employee at Adam
Clark’s house in 2017. [153-42]. Amanda C. claims that Adam Clark was a “serial
predator” who harassed multiple women at the company, with the company taking
no discipline against him. Id. ¶ 5. Amanda C. also claims that when she participated
in the company’s investigation of Clark in 2021, she believes she was retaliated
against by the company in that a promotion that she was promised prior to her
participation in the investigation was withdraw afterward. Id. ¶ 11. Amanda C.
described in her 2022 resignation email that the company perpetuated a
“misogynistic boys club in the sales organization” and explained that attending a
national meeting “as a woman at this organization has always made me feel like a
piece of meat.” PSAF ¶ 25. This evidence regarding Defendant’s mistreatment of
other women supports an inference of discrimination. See Vega, 954 F.3d at 1005
(finding that “testimony that the Park District mistreated other Hispanic employees,”
such as that Hispanic supervisor was assigned to “rough” parks on purpose and that
another employee retired after being told she and her staff were being watched,
supported a reasonable inference of discrimination). For its part, Defendant argues
that Amanda C.’s experience was different from Plaintiff’s, and that it is not clear

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whether they shared the same supervisors or decisionmakers. See [170] at 13. Thus,
Defendant argues, Amanda C.’s experience sheds no light on Plaintiff’s own
experience. Id. While Defendant remains free to argue this to a jury, Amanda C.’s
experience is not irrelevant, and it is “the jury’s job to weigh” the evidence, “make
credibility determinations, and evaluate the trial record based on its collective
common sense.” Stragapede v. City of Evanston, 865 F.3d 861, 866 (7th Cir. 2017), as
amended (Aug. 8, 2017).
For these reasons, Plaintiff has raised a triable issue of fact on whether her
PIP, FWW, and ultimate termination were discriminatory.
B.
Plaintiff

Territory Realignment
also

contends

that

Defendant’s

territory

realignment

was

discriminatory. Defendant counters that the territory realignment does not qualify
as an adverse action because it did not affect her base compensation nor her target
commissions. [131] at 12. Plaintiff, however, maintains that her actual compensation
suffered by more than a half a million dollars. PRSOF ¶ 32. Indeed, a lateral transfer
that results in a reduction in pay can qualify as an adverse employment action. See
West v. Radtke, 48 F.4th 836, 849 (7th Cir. 2022) (noting that a reduction in
compensation, fringe benefits, or other financial terms of employment qualifies as an
adverse employment action under Title VII).
Notwithstanding, the record contains no facts suggesting that Defendant’s
territory realignment occurred due to Plaintiff’s sex. The undisputed portions of the
record show that Plaintiff ranked last of the ASMs in 2017, and that as a result,

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Defendant decided to move sales for Northern Chicago from Plaintiff to Mark N., who
sold to 200% quota in 2017. DSOF ¶¶ 27–29. Plaintiff does not fully develop this
argument about the territory realignment. She argues that Defendant “has a pattern
of taking accounts away from women and giving them to men,” [150] at 25, but the
exhibits upon which she relies to support this argument come from PSAF ¶¶ 7–8,
which contain inadmissible hearsay statements from other female employees in their
EEOC charges. Plaintiff thus fails to raise a triable issue that Defendant realigned
her accounts based on her sex. Plaintiff cannot base her discrimination claim on this
the territory realignment which does not constitute an adverse action.
II.

Retaliation
This Court next assesses whether Plaintiff raises a triable issue on her

retaliation claim. This claim is somewhat difficult to discern. Plaintiff appears to
assert that Defendant retaliated against her for lodging her internal discrimination
complaints and ethics violation against Ebong, and that this retaliation manifested
in a few different forms—termination, the PIP/FWW, “intense monitoring and
heightened scrutiny” by Ebong and Docter, Ebong’s “harassment and physical
intimidation,” Defendant’s inadequate investigation into her complaints, Ebong’s and
Docter’s negative field ride reports, Ebong excluding Plaintiff from communications
and Docter condoning it, and Ebong’s decision to limit her to just 10 accounts when
she returned from medical leave.
To survive summary judgment on this claim, Plaintiff must present evidence
of: (1) a statutorily protected activity; (2) a materially adverse action taken by the

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employer; and (3) a causal connection between the two. Abebe v. Health & Hosp. Corp.
of Marion Cnty., 35 F.4th 601, 607 (7th Cir. 2022). The “evidence presented ‘must be
considered as a whole, rather than asking whether any particular piece of evidence
proves the case by itself. . . . Evidence is evidence. Relevant evidence must be
considered and irrelevant evidence disregarded.” Lesiv v. Ill. Cent. R.R. Co., 39 F.4th
903, 911 (7th Cir. 2022) (quoting Ortiz, 834 F.3d at 765). The inquiry boils down to
one question: Does the record contain sufficient evidence to permit a reasonable
factfinder to conclude that retaliatory motive caused the materially adverse action?
Id. On the element of causation, Plaintiff must show that Defendant would not have
taken the adverse action but for her protected activity. Greengrass v. Int’l Monetary
Sys. Ltd., 776 F.3d 481, 486 (7th Cir. 2015). Plaintiff can meet her burden on
causation by presenting direct evidence of retaliation in the form of admissions, or
alternatively, by pointing to circumstantial evidence, “including evidence of
suspicious timing, ambiguous statements, behavior toward or comments directed at
other employees in the protected group, and other bits and pieces from which an
inference of [retaliatory] intent might be drawn.” Scaife v. U.S. Dep’t of Veterans Affs.,
49 F.4th 1109, 1118 (7th Cir. 2022); see also Huff v. Buttigieg, 42 F.4th 638, 646 (7th
Cir. 2022). Defendant may rebut the inference of causation “with evidence of a
nondiscriminatory explanation for the challenged action,” after which the “burden
returns to [Plaintiff] to show that the . . . nondiscriminatory explanation is
pretextual.” Jokich v. Rush Univ. Med. Ctr., 42 F.4th 626, 634 (7th Cir. 2022).

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Initially, not all of Plaintiff’s alleged adverse actions qualify as materially
adverse under Title VII. The Supreme Court cautions that “it is important to separate
significant from trivial harms,” and that Title VII “does not set forth a general civility
code for the American workplace.” Lewis v. Wilkie, 909 F.3d 858, 867 (7th Cir. 2018)
(quoting Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, (2006)). For
example, Ebong’s threat to sue Plaintiff is not itself a materially adverse action; it is
an “unfulfilled threat[ ] that result[ed] in no material harm” because Ebong did not
ultimately pursue legal action and Plaintiff demonstrates no concrete harm
stemming from that threat. Id. at 869 (noting that a threat that results in “no injury
or harm greater than stress and worry” does not constitute an adverse action in itself,
even if it can be probative to retaliatory intent behind a more concrete adverse action).
Similarly, Plaintiff’s complaints that Ebong and Docter gave her harsh
performance reviews after field rides do not amount to materially adverse actions.
Flanagan v. Off. of Chief Judge of Cir. Ct. of Cook Cnty., Ill., No. 06 C 1462, 2007 WL
2875726, at *11 (N.D. Ill. Sept. 28, 2007) (noting that “negative performance
evaluations alone cannot constitute a materially adverse employment action in the
Seventh Circuit”) (citing Haywood v. Lucent Techs., 323 F.3d 524, 532 (7th Cir.
2003)). Nor does increased scrutiny or monitoring, see Trimble v. All.-DeKalb/RockTenn Co., 801 F. Supp. 2d 764, 775 (N.D. Ill. 2011), exclusion from communications
by Ebong, see Gupta v. City of Chicago, No. 16 C 9682, 2017 WL 2653144, at *5 (N.D.
Ill. June 20, 2017) (noting that “snubbing” from supervisors is not materially
adverse), or Defendant’s alleged failure to adequately investigate Plaintiff’s

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complaints, see Kuhn v. United Airlines, 63 F. Supp. 3d 796, 803 (N.D. Ill. 2014), aff’d
sub nom. Kuhn v. United Airlines, Inc., 640 F. App’x 534 (7th Cir. 2016); Clemmer v.
Off. of Chief Judge of Cir. Ct. of Cook Cnty. & State of Ill., No. 06 C 3361, 2008 WL
5100859, at *15 (N.D. Ill. Dec. 2, 2008) (“Clemmer may have preferred her employer
to do more in its investigation, but its failure to conduct an inquiry to her satisfaction
does not constitute an adverse action.”).
Plaintiff also contends that Defendant’s decision to limit her to just ten
accounts following her medical leave does constitute an adverse employment action.
[150] at 29. But the facts demonstrate that Plaintiff was not so limited. The exhibit
she relies on to demonstrate this fact shows that, upon her return from medical leave,
Docter emailed her a list of ten accounts and asked her to “include each of these
targets and plans into your chessboard management tool.” [153-18]. Docter followed
up later to clarify that the “10 targeted accounts, and respective surgeons, provided
to you last week, are the best pipeline management opportunities that need your
focus in order to build out your mid and long term pipeline. By all means, if you would
like to discuss the remaining 70 accounts if you feel there is an opportunity, I am
certainly open to this.” [167-49] at 3. Accordingly, the contemporaneous evidence does
not corroborate Plaintiff’s assertion that Defendant shut her out from other accounts.
The only remaining asserted actions are Ebong’s alleged harassment and
physical intimidation, the PIP/FWW, and the termination. The Court assesses those
below.

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A.

Harassment and Intimidation

Plaintiff asserts that Ebong harassed and intimidated her in retaliation for her
internal

complaints.

[150]

at

29.

“Harassment

can

constitute

a materially adverse action for retaliation purposes” if “serious enough to dissuade a
reasonable employee from engaging in protected activity.” Poullard v. McDonald, 829
F.3d 844, 857–58 (7th Cir. 2016). Plaintiff can “assert that the collective harassment
she experienced in retaliation amounted to an impermissible retaliatory action.”
McCracken v. Indiana, No. 1:19-CV-02290-JRS-MG, 2021 WL 4454113, at *17 (S.D.
Ind. Sept. 29, 2021).
Viewed collectively, the record contains sufficient evidence that Ebong
harassed Plaintiff for retaliatory purposes. Plaintiff offers her deposition testimony,
for example, that during a field ride with Ebong on February 1, 2018 he berated,
threatened, and screamed at her in the middle of a hospital cafeteria with customers
around. [153-3] at 53. This harassment occurred shortly after Plaintiff initially
complained about discrimination on January 5, 2018 when Ebong informed her that
her accounts were to be reassigned to a male employee. A reasonable jury could find
that, given the timing of events and Plaintiff’s account of the interaction, which made
her physically afraid, the harassment was materially adverse and was motivated by
Plaintiff’s complaint. See Coleman v. Donahoe, 667 F.3d 835, 861 (7th Cir. 2012).
The record also contains evidence that Ebong harassed her for reporting his
alleged ethics violation. On February 15, ten days after she made the ethics complaint
about Ebong to ComplianceLine, Ebong emailed Pastor that he was “concerned with

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her performance and pattern of dishonesty as hindrances to our business and
damaging our culture” and asked Pastor and human resources to “address[ ] this with
[Plaintiff] during the debrief.” PSAF ¶¶ 42, 44. Plaintiff also produces evidence that,
on February 26, 2018, she raised concerns with human resources that Ebong shut her
out of conversations—specifically in his weekly reports. PSAF ¶ 37. Ebong also
threatened to sue Plaintiff over her internal complaints, by sending a cease-anddesist letter from his attorney to Plaintiff’s attorney while both remained employed
at the company. [155-32]. While, as discussed above, these individual events may not
themselves qualify as materially adverse, a reasonable jury could find that they
amount to “collective harassment” that Ebong subjected Plaintiff to in retaliation for
her complaints. McCracken, 2021 WL 4454113, at *17; see, e.g., Poullard, 829 F.3d at
857 (noting that unfulfilled threats, though not actionable, “may well be relevant
evidence of retaliatory intent behind a more concrete adverse action”).
For these reasons, Plaintiff has raised a triable issue as to whether she
experienced retaliatory harassment for engaging in protected activity.
B.

PIP/FWW and Termination

As with the discrimination claim, the parties dispute whether a PIP and FWW
qualify as adverse actions in the retaliation context. As in the discrimination context,
in the retaliation context, a PIP, “without more, does not rise to this level” of an
adverse employment action. Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d
866, 889 (7th Cir. 2016). It can, however, be “relevant evidence of retaliation” behind

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a more concrete action—here, termination. Id. Thus, this Court will again analyze
the PIP/FWW and termination together.
Defendant argues that the PIP, FWW, and subsequent termination was not
retaliatory. A jury could certainly believe Defendant’s argument, as the record
demonstrates that Plaintiff suffered from multiple performance-related issues giving
rise to the PIP, the FWW, and ultimately her termination. Leading up to the PIP and
FWW, it is undisputed that in 2017, Plaintiff’s performance suffered and at the end
of the year, she was ranked 37th out of 37 ASMs and finished only 46% to quota. DSOF
¶¶ 22, 37. Upon the company’s transition through which Ebong replaced Stoner as
Plaintiff’s supervisor, Stoner told Ebong that Plaintiff was struggling in the ASM job.
[133-9] at 11–13. Stoner also told Ebong that “I felt like there was going to be some
performance management that was going to be taking place if her and I were still
aligned.” Id. at 13. Docter took over Plaintiff’s management at the end of February
2018. DSOF ¶ 47. During a field ride with Plaintiff in early March 2018, Docter
concluded she needed to improve her application of the 5 Pillars sales strategy. [13312] ¶ 24. As Docter explains in his declaration, Plaintiff did not reach out to a local
team in another state with which they were coordinating; the slide decks she
presented did not have commitment dates for the surgeons and hospitals, as required
under Pillar 4; and the slide deck had information about the wrong Robot. Id. Docter
also assessed that Plaintiff failed to effectively utilize and implement the first three
of the 5 Pillars, such that when she would try to get to Pillar 5 (validations from a
hospital’s C-suite), she would suffer from not having done the legwork. Id. ¶ 25. On

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March 8, 2019, Docter emailed Plaintiff about a specific meeting with executives and
explained that Plaintiff’s slide deck missed key information about a Robot and
omitted dates of upcoming planned market events, and instructed it was important
to have this information in a meeting with hospital executives and surgeons. Id. ¶ 26.
The PIP issued on March 27, 2018 was intended to focus her efforts on the 5 Pillars.
Id. ¶ 27. Docter issued Plaintiff a Final Written Warning (FWW) on April 27, 2018.
DSOF ¶ 66. Docter attests that he did so because she did not make sufficient progress
on the specific actions outline in her PIP after thirty days. [133-12] ¶ 34. These facts
show that Defendant had legitimate work performance concerns with Plaintiff and
placed her on the PIP and FWW due to those concerns.
But the record contains countervailing evidence raising an inference of
retaliatory intent. Plaintiff offers evidence that she complained to Ebong on January
5, 2018 about gender discrimination, and that two days later, on January 7, 2018,
Ebong recommended to Docter that the company should place Plaintiff on a
performance plan, see [150] at 32; DSOF ¶¶ 33, 37, and Docter did eventually place
Plaintiff on the PIP. This suspicious timing “can support an inference of
a retaliatory motive.” Lesiv, 39 F.4th at 920.
Moreover, as discussed above in analyzing Plaintiff’s discrimination claim,
Plaintiff has evidence that Defendant treated Chris Andrews more favorably. Based
on the raw data, Andrews suffered from similar performance-related issues as
Plaintiff but Docter did not put him on a PIP as quickly as it did Plaintiff, and did not
terminate Andrews. Andrews did not raise any complaints of discrimination or ethics

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violations, as Plaintiff did. See, e.g., Collins v. Village of Woodridge, 96 F. Supp. 2d
744, 753 (N.D. Ill. 2000) (holding that evidence of a pattern of bad evaluations
following the plaintiff’s internal complaint, combined with evidence of a similarlysituated comparator who received more favorable treatment, sufficiently created a
triable issue on causation in the retaliation context); cf. Poullard, 829 F.3d at 859
(affirming summary judgment on retaliation claim because the plaintiff did not
identify a similarly situated comparator who the defendant treated more favorably
and who did not engage in protected activity).
Additionally, it remains disputed whether Ebong influenced Docter’s decisions
to discipline and terminate Plaintiff. There is evidence, as discussed, that Ebong was
angry about Plaintiff’s complaints of discrimination and about his alleged ethics
violation, from which a reasonable fact-finder could conclude that Ebong
recommended the PIP to Docter in retaliation. And there is evidence that Ebong
continued to influence Docter’s management of Plaintiff: according to Plaintiff, even
after she returned from medical leave, she remained on Ebong’s team, and Docter
continued to communicate with Ebong about Plaintiff’s progress on her PIP. [133-2]
at 90. There is also evidence that Ebong made misrepresentations about his
communications with Plaintiff that caused Docter to perceive her in an unfavorable
light. PSAF ¶¶ 39–40. Given this evidence that Ebong had Docter’s ear, there is a
genuine issue of material fact as to whether Defendant might be liable under a cat’s
paw theory of retaliation. See Huff, 42 F.4th at 647 (explaining that under the cat’s
paw theory of liability, an “employer may be liable for the retaliatory actions of a

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subordinate who lacked formal decision-making power if the subordinate’s actions
were the proximate cause of the adverse employment action”).
Construing the record in Plaintiff’s favor, as this Court must on summary
judgment, it finds that Plaintiff has produced evidence from which a jury could find
retaliation.
III.

Hostile Work Environment

The Court next analyzes whether Plaintiff establishes sufficient evidence to
proceed on her hostile work environment theory.
To prove this claim, Plaintiff must show: (1) Defendant subjected her to
unwelcome harassment; (2) the harassment was based on her sex; (3) the harassment
was severe or pervasive; and (4) there is a basis for employer liability. Brooks v.
Avancez, 39 F.4th 424, 441 (7th Cir. 2022); Scaife, 49 F.4th at 1115–16. The Court
bears in mind that a hostile-work-environment claim is a single “unlawful
employment practice” that includes every act composing that claim, whether those
acts are independently actionable or not. Green v. Brennan, 578 U.S. 547, 557 (2016)
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–121 (2002)).
Plaintiff bases her hostile work environment theory on a totality of circumstances,
including overtly sexual comments; verbal harassment; being physically intimidated,
berated in public, excluded from meetings and communications; and being held to
unreasonable performance expectations not placed on men; being subjected to
increased monitoring; and being threatened by legal action by Ebong. [150] at 23–24.

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Defendant argues that Plaintiff has insufficient evidence on the second and
third elements of a hostile work environment claim.
A.

Harassment Based on Sex

On the second element—whether Defendant subjected Plaintiff to harassment
based on her sex—Defendant argues that Ebong and Docter did not harass her
because she was a woman. [170] at 22. To be sure, the record demonstrates that
Ebong’s subordinates—men and women—had issues with his management style. One
male ASM, Chris Andrews described Ebong as a “bully” who “pushes so hard that he
makes people feel uncomfortable.” DSOF ¶ 55. But “forms of harassment that might
seem neutral in terms of race (or sex or other protected status) can contribute to a
hostile work environment claim if other evidence supports a reasonable inference
tying the harassment to the plaintiff’s protected status.” Cole v. Bd. of Trustees of N.
Ill. Univ., 838 F.3d 888, 896 (7th Cir. 2016). Superficially “neutral events” can
contribute to a hostile work environment as part of “the entire context of the
workplace.” Id. (quoting Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1046 (7th Cir.
2002)). Plaintiff provides more context from which a reasonable juror could conclude
that Ebong harassed her because of her sex. For instance, two other female coworkers, Lehmann and Steinhoff, provided testimony about their interactions with
Ebong. Lehmann testified that Ebong leaned into her, causing her to be afraid for her
physical safety. [153-15] at 13. Steinhoff testified that Ebong talked about the size of
his genitalia at a work outing; and that he also made a comment about her wanting
to leave the company and get married during a meeting. [153-16] at 10, 37–38. These

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actions and comments evidence gender animus. Based on these pieces of evidence, a
jury could reasonably view the allegedly harassing conduct as the product of hostility
toward women. See Hall v. City of Chicago, 713 F.3d 325, 333 (7th Cir. 2013) (“If a
supervisor treated all women hostilely, we generally permit an inference that the
actor was motivated by their gender.”); see also, e.g., S.C. v. Metro. Gov’t of Nashville
& Davidson Cnty., Tenn., 579 F. Supp. 3d 999, 1036 (M.D. Tenn. 2022) (noting that
evidence that a “supervisor was abusive toward women more often than men” can
support the inference that harassment was sex-based when it is facially genderneutral); see Sanderson v. Wy. Highway Patrol, 976 F.3d 1164, 1174 (10th Cir. 2020)
(instructing that the jury ordinarily decides “whether facially sex-neutral conduct
constitutes harassment based on sex”).
Similarly, a reasonable jury could conclude that Docter’s management of
Plaintiff was based on her sex. As discussed above, Docter placed Plaintiff on a
progressive discipline policy instead of allowing her a grace period as he did a
similarly situated male comparator, Chris Andrews, and according to Plaintiff,
subjected her to increased monitoring of her work performance, travel, and email
accounts. Viewed in totality, this Court cannot say that there is no evidence that
Docter’s actions were not sex-based. See Hall, 713 F.3d at 331.
B.

Severe or Pervasive Harassment

Defendant also argues that Plaintiff’s hostile work environment does not
withstand summary judgment because she cannot show that the harassment toward
her was objectively offensive, and thus, she cannot satisfy the “severe or pervasive”

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prong of her claim. [170] at 22–24; see Smith v. Ne. Ill. Univ., 388 F.3d 559, 566 (7th
Cir. 2004) (“Ultimately, to satisfy the ‘severe or pervasive’ prong, the plaintiff must
show that the work environment was both subjectively and objectively offensive.”).
This Court disagrees. Such inquiries are generally reserved for the jury. See Johnson
v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 901 (7th Cir. 2018) (“Whether
harassment was so severe or pervasive as to constitute a hostile work environment is
generally a question of fact for the jury.”). Construing the evidence in her favor, the
jury could reasonably find that the work environment Plaintiff complains of—
consisting of verbal and physical intimidation by her supervisor, a culture of sexism
toward women, and the imposition of more difficult standards for work performance
compared to men—is sufficiently severe or pervasive to constitute an actionable
hostile work environment.
For these reasons, this Court denies summary judgment on Plaintiff’s hostile
work environment theory.
IV.

Retaliatory Discharge
Next, Plaintiff asserts that Defendant fired her in retaliation for her reporting

Ebong’s attempt to bribe a doctor in violation of Illinois law. [150] at 34.
To survive summary judgment on an Illinois retaliatory discharge claim, a
plaintiff set forth evidence that: “(1) the employer discharged the employee (2)
in retaliation for the employee’s protected activities, and (3) that the discharge was
in contravention of a clearly mandated public policy.” Perez v. Staples Cont. & Com.
LLC, 31 F.4th 560, 571 (7th Cir. 2022). Defendant does not dispute that Plaintiff has

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evidence of the first and third elements; instead, Defendant argues that Plaintiff
cannot prove that her ethics complaint against Ebong caused Plaintiff’s termination.
[170] at 30.
For the same reasons as discussed above, this Court finds that Plaintiff has
adduced sufficient evidence from which a jury could reasonably find that her ethics
complaint against Ebong caused her termination. This Court therefore denies
summary judgment on Plaintiff’s retaliatory discharge claim. See, e.g., Masud v.
Rohr-Grove Motors, Inc., No. 13 C 6419, 2015 WL 5950712, at *8 (N.D. Ill. Oct. 13,
2015) (denying summary judgment on retaliatory discharge claim for the same
reasons as the Title VII retaliation claim).
V.

Illinois Whistleblower Act
Finally, Defendant moves for summary judgment on Plaintiff’s IWA claim. The

IWA prohibits an employer from retaliating against an employee “for refusing to
participate in an activity that would result in a violation of a State or federal law,
rule, or regulation.” 740 Ill. Comp. Stat. 174/20. There “are two aspects to such a
claim: (1) the refusal to participate; and (2) the violation of a statute, rule, or
regulation.” Perez, 31 F.4th at 574 (citing Roberts v. Bd. of Trustees of Cmty. Coll.
Dist. No. 508, 135 N.E.3d 891, 900–01 (Ill. 2019)).
Defendant argues that Plaintiff has no evidence that she refused to participate
in Ebong’s alleged bribe of the doctor. [170] at 30. This Court agrees. Under the IWA,
refusing means refusing; “it does not mean ‘complaining’ or ‘questioning.’” Perez v.
Staples Cont. & Com. LLC, No. 16-CV-7481, 2020 WL 6448296, at *10 (N.D. Ill. Nov.

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3, 2020) (quoting Sardiga v. N. Tr. Co., 948 N.E.2d 652, 657 (Ill. App. Ct. 2011)); see
also, e.g., Robinson v. Alter Barge Line, Inc., 513 F.3d 668, 670 (7th Cir. 2008)
(explaining that the plaintiff did not refuse to participate in illegal activity under the
IWA because he “was never invited to” engage in it). The evidence shows that Plaintiff
reported Ebong’s conduct by filing a formal report with a compliance hotline and
participating in the subsequent investigation. There is no further evidence, however,
that Ebong asked, and Plaintiff refused, to participate in the alleged bribe. This Court
therefore grants summary judgment on Defendant on Plaintiff’s IWA claim.
CONCLUSION
For the reasons explained above, this Court grants in part and denies in part
Defendant’s motion for summary judgment [130]. All but Plaintiff’s Illinois
Whistleblower Act claim will proceed to trial. This Court notes that Plaintiff requests
sanctions because she believes Defendant’s motion for summary judgment is
“frivolous.” [150] at 36. This Court does not find Defendant’s motion frivolous, and
thus, denies Plaintiff’s request.

E N T E R:
Dated: February 20, 2023
MARY M. ROWLAND
United States District Judge

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