Eib v. Marion General Hospital Inc.

          OPINION AND ORDER

          William C. Lee, Judge

         This matter is before the Court on the motion for summary judgment filed by Defendant Marion General Hospital (ECF 31). Plaintiff Roger Eib filed a response in opposition (ECF 35) and Marion Hospital filed a reply (ECF 37). For the reasons explained below, the motion is GRANTED in part and DENIED in part.

         BACKGROUND

         Roger Eib filed this lawsuit against Marion General Hospital, his former employer, alleging age discrimination. Amended Complaint (ECF 11). Eib alleges that “Defendant Marion General Hospital . . . discriminated against and created a hostile work environment with respect to its former employee, Plaintiff Roger L. Eib . . . on the basis of his age and retaliated against Mr. Eib for opposing said discrimination, all in violation of the Age Discrimination in Employment Act[.]” Plaintiff's Response in Opposition, p. 1. Eib explains that he was hired by Marion General in 1977 “full-time . . . in the position of Emergency Medical Technician.” Amended Complaint, p. 2. He was 22 years old at the time. Id. Three years later, Eib “became certified as a paramedic . . . [and] began working for MGH in the position of Paramedic. Within approximately five years . . . Mr. Eib was promoted to the position of Supervisor within the Ambulance Department of MGH.” Id. Many years later, “[a]fter Mr. Eib came to be forty years of age, MGH began a pattern of discriminatory actions directed at Mr. Eib because of his age including, but not limited to, pretextual disciplinary action. The pattern of discriminatory actions directed at Mr. Eib by MGH created an on-going hostile work environment.” Id. Eib further alleges that his “job title was changed several times between his promotion to the position of Supervisor and September of 2013 at which time his job title was Unit Shift Manager, though his job duties and responsibilities were substantially unchanged.” Id. Eib claims that on September 26, 2013, he “was demoted from his position as Unit Shift Manager to Paramedic . . . [and] [t]he position of Unit Manager was filled by an employee substantially younger than Mr. Eib.” Id., p. 3. Jumping ahead several months, Eib contends that after he was demoted “he began to be mandated to work overtime immediately after the end of his regularly scheduled shift at a significantly increased rate and significantly more often than similarly situated employees. Between December of 2014 and March of 2016 Mr. Eib was mandated to work past the end of his regular shift more than three (3) times as often as the average for employees of the Ambulance Department and nearly twice as often as the next most frequently mandated employee.” Plaintiff's Response in Opposition, p. 10.^[1] Eib alleges that “[o]n or about April 26, 2016, Mr. Eib was the subject of a three day unpaid disciplinary suspension due to his age . . . [and] [o]n or about August 17, 2016, Mr. Eib was the subject of an indefinite paid suspension due to his age.” Amended Complaint, p. 3. Eib filed a charge of discrimination against MGH with the Equal Employment Opportunity Commission on September 26, 2016. Id. Eib alleges that he was fired the very next day when he “attended a meeting with representatives of MGH during which Mr. Eib stated that he had filed the above-referenced charge[.]” Id., p. 4. Eib then filed a second charge of discrimination on September 27, 2016, alleging that his termination was in retaliation for having filed his first charge. Id. Eib states that “[o]n or about June 14, 2017, the EEOC issued a Notice of Right to Sue in each of the two claims of discrimination filed by Mr. Eib against MGH[.]” Id. Eib attached copies of these Right to Sue letters to his Complaint. See ECF 11-1 and 11-2. Eib seeks “compensatory damages-to include back pay, [front] pay, and the value of lost benefits . . . liquidated damages in an amount equal to the determined compensatory damages . . . punitive damages in an amount of $33, 390, 000.00 . . . [and] all reasonable litigation costs and attorney fees[.]” Id., p. 5.

         STANDARD OF REVIEW

         I. Summary judgment standard.

         Summary judgment is appropriate when the record shows that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See Id. at 255. However, neither the “mere existence of some alleged factual dispute between the parties, ” id. at 247, nor the existence of “some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).

         Summary judgment is not a substitute for a trial on the merits nor is it a vehicle for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). However, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). “[Speculation and conjecture” also cannot defeat a motion for summary judgment. Cooney v. Casady, 735 F.3d 514, 519 (7th Cir. 2013). In addition, not all factual disputes will preclude the entry of summary judgment, only those that “could affect the outcome of the suit under governing law.” Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (citation omitted).

         As the Seventh Circuit has explained many times and reiterated recently, a district court's task on summary judgment is as follows:

On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder. Rather, the court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Summary judgment is not appropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. We must look therefore at the evidence as a jury might, construing the record in the light most favorable to the nonmovant and avoiding the temptation to decide which party's version of the facts is more likely true. As we have said many times, summary judgment cannot be used to resolve swearing contests between litigants.

Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (quoting Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)).

         II. Age Discrimination in Employment Act.

         The ADEA provides, in pertinent part, as follows:

It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

. . .

It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment . . . because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.

29 U.S.C. § 623(a)(1) and (d). And as this Court recently explained:

[T]he ADEA makes it unlawful for an employer to take adverse action against an employee who is forty years or older “because of such individual's age.” 29 U.S.C. §§ 623(a)(1), 631(a). Age must be “the ‘reason' that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Therefore, “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for' cause of the challenged adverse employment action.” Id. at 180. In this sense, the ADEA is somewhat narrower than Title VII. Carson v. Lake Cty. Ind., 865 F.3d 526, 532 (7th Cir. 2017).

Hope v. ArcelorMittal Burns Harbor, LLC, 2019 WL 450700, at *11 (N.D. Ind. Feb. 4, 2019). When called upon to assess the merits of a claim, this Court is charged with examining the evidence “as a whole” to determine if a reasonable jury could conclude that a plaintiff's age was the reason he suffered an adverse employment action. The Seventh Circuit, in the case of Ortiz v. Werner Enters., Inc., clarified the standard of review applicable to employment discrimination cases. Another district court summarized the Seventh Circuit's holding in Ortiz as follows:

Courts previously spoke of proceeding under an indirect or direct method to establish discrimination, but the Seventh Circuit has instructed that instead of using such tests, the Court should consider the evidence “as a whole” to determine whether it “would permit a reasonable factfinder to conclude that the plaintiff's [race, religion, or national origin] caused the [adverse employment action].” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). The Court must determine “whether a reasonable factfinder could ‘conclude that [Mahran's] proscribed factor caused the [adverse employment action].'” Brown v. DS Servs. of Am., Inc., 246 F.Supp.3d 1206, 1216 (N.D. Ill. 2017) (quoting Ortiz, 834 F.3d at 765). This does not mean, however, that the Court cannot consider the traditional burden-shifting test laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), under which Mahran attempts to demonstrate that he has the evidence needed to survive summary judgment. Ortiz, 834 F.3d at 766 (noting that its decision does not overrule McDonnell Douglas). The Court considers the evidence through the McDonnell Douglas framework and then turns to a cumulative review of the evidence to determine whether a reasonable factfinder could determine that Mahran's religion or national origin caused the complained-of adverse actions. See David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).

Mahran v. Advocate Health & Hosps. Corp., 2019 WL 952131, at *9 (N.D. Ill. Feb. 26, 2019).

         The McDonnell Douglas burden-shifting method “allows a plaintiff to establish a prima facie case of discrimination and then rebut a defendant's stated non-discriminatory reason for the termination.” Rivera v. WestRock Servs. Inc., 2018 WL 6528017, at *3 (N.D. Ill.Dec. 12, 2018) (citing David, 846 F.3d at 224). A plaintiff may establish a prima facie case by presenting facts that 1) he belongs to a protected class, 2) he was meeting his employer's legitimate expectations, 3) he suffered an adverse employment action, and 4) his employer treated similarly situated, younger employees more favorably. Id. If a plaintiff does this, then the defendant employer “must articulate a legitimate, nondiscriminatory reason” for an adverse employment action, “at which point the burden shifts back” to the plaintiff to submit evidence showing that the employer's reason is pretextual. Id. (quoting Brown v. DS Services of America, Inc., 246 F.Supp.3d 1206, 1217 (N.D. Ill. 2017)).

         DISCUSSION

         As stated above, Eib contends that MGH discriminated against him on the basis of his age on several occasions over the span of several years, and that those incidents were part of a continuing pattern of discriminatory conduct. MGH insists that Eib's attempts to characterize discrete acts of alleged discrimination as a continuing violation is really an attempt to evade the fact that most of his claims are time-barred. MGH argues that those claims that are not time-barred, including Eib's hostile environment claim and retaliation claim, fail to survive summary judgment because Eib cannot establish a prima facie case under McDonnell Douglas.

         MGH correctly notes that “a charge of discrimination under the ADEA must be filed within 180 days of the alleged adverse employment action.” Defendant's Brief in Support (ECF 32), p. 4 (citations omitted). MGH contends Eib failed to do that, arguing as follows:

Eib's initial EEOC charge was filed on September 26, 2016. . . . In that charge, Eib claimed that the Hospital's alleged unlawful employment practices included: 1) harassment and discrimination through January of 2016 based on the assignment of overtime; 2) discriminatorily [sic] “demoting” Eib from his charge paramedic position in September of 2013; and 3) harassment and discrimination in the form of a disciplinary suspension on April 26, 2016 and an investigatory suspension on August 17, 2016. . . . All of Eib's claims, other than item 3 above, were untimely filed and therefore subject to dismissal.

Id. MGH notes that “[f]or any alleged harassing or discriminatory overtime assignments that took place through January 31, 2016[, ] to be properly brought before this Court, the EEOC charge would had to have been filed on or before July 29, 2016-180 days after the last day of January, 2016. . . . The charge was actually filed on September 26, 2016, which is nearly two months too late to include such claims.” Id., p. 5. MGH also insists that “[s]ignificantly more untimely is Eib's claim that he was discriminatorily [sic] demoted in September of 2013. . . . Eib was more than two years too late for the filing of that claim. Accordingly, Eib's claims that he was demoted from his charge paramedic position based on his age in September of 2013 and his claim that his overtime assignments through January of 2016 were harassing and discriminatory are untimely and subject to dismissal.” Id.

         In his response, Eib does not dispute that an ADEA claim must be filed with the EEOC within 180 days of the alleged discriminatory act, but insists that the continuing violation doctrine applies and breathes life into claims that would otherwise be time-barred. Plaintiff's Response in Opposition (ECF 35), p. 5. Eib's argument is as follows:

The Supreme Court . . . has recognized the continuing violation theory under which a continuing pattern of discrimination is actionable so long as a present violation is demonstrated. United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977). Since this recognition by the Supreme Court, the Seventh Circuit Court of Appeals has discussed three theories under which a plaintiff may establish a continuing violation: 1) when an employer makes employment decisions over time that make it difficult for the employee to determine the actual date of discrimination, 2) an employer's express, openly espoused policy that is alleged to be discriminatory, and 3) where discrete acts of discrimination are part of an ongoing pattern and at least one of the discrete acts occurred within the relevant limitations period.

Id. (citing Stewart v. CPC International, Inc., 679 F.2d 117, 120-21 (7th Cir. 1982)). Eib states that “[i]t is the third enumerated theory upon which Mr. Eib relies in bringing forth allegations relating to discrete acts occurring more than 180 day[s] prior to his filing of charges with the EEOC.” Id., pp. 5-6.

         MGH argues that “[t]he continuing violation exception does not apply to Eib's claims.” Defendant's Reply in ...