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Simpson v. Franciscan Alliance, Inc.

United States Court of Appeals, Seventh Circuit

June 28, 2016

Arlene Simpson, Plaintiff-Appellant,
Franciscan Alliance, Inc., d/b/a Franciscan St. James Health, Defendant-Appellee.

          Argued April 27, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 5857 - Manish S. Shah, Judge.

          Before Flaum, Manion, and Williams, Circuit Judges.


         Arlene Simpson, a registered nurse, claimed that she was fired from her job in a surgical unit at Franciscan St. James Health principally because she is over age 40 and African American. The district court granted St. James's motion for summary judgment, reasoning that Simpson had established a prima facie case of discrimination under the indirect method of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), but lacked evidence that the defendant's explanation for firing her was pretextual. We conclude, however, that Simpson did not even establish a prima facie case of discrimination, let alone that the proffered explanation was pretextual. We thus affirm the district court's judgment.

         I. Background

         Simpson began working at St. James in 2008. She wasn't reprimanded for violating any hospital rules until after 2009 when Maureen Kelly, a Caucasian woman, became the patient-care manager for Simpson's department. As manager Kelly directly supervised Simpson, and from October 2010 through September 2011 she disciplined Simpson four times using a form called an "Employee Corrective Action Report." The discipline was progressive, and the fourth incident resulted in the termination of Simpson's employment.

         Simpson lodged a charge of age, race, gender, and disability discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission. After the EEOC issued a right-to-sue letter, Simpson filed suit in August 2013, claiming age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621– 634, and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17. (Simpson's complaint also included claims of gender discrimination under Title VII and disability discrimination in violation of the Americans with Disabilities Act, but those claims have been abandoned.) Simpson alleged that, despite satisfactorily performing her job duties, she had been reprimanded by Kelly, and ultimately fired, based on false allegations of misconduct.

         At summary judgment St. James argued that Simpson could not establish a prima facie case of discrimination, asserting that she had not been performing up to expectations and could not identify a similarly situated coworker who was treated more favorably. St. James pointed to the four Employee Corrective Action Reports and also to unsatisfactory performance evaluations, deposition testimony (including Kelly's testimony that she had addressed a fifth incident of misconduct informally instead of using an Employee Corrective Action Report to reprimand Simpson), and the defendant's manual of policies and procedures. Moreover, St. James added, Simpson was not disputing the existence of the complaints from patients and their families which underlie two of the formal reprimands. The reprimands, St. James argued, provided a nondiscriminatory basis for discharging Simpson, whether or not other evidence established a prima facie case of discrimination.

         The first reprimand, from October 2010, asserts that Simpson had disregarded a doctor's orders to change a patient's surgical dressing and stop the patient's controlled pain medication. Three months later, in January 2011, Simpson received the second reprimand, this time accusing her of improperly directing a patient-care technician to take her place for two procedures that required a nurse. That reprimand further accused Simpson of making it appear in one of the patient's files that she had been present for the procedure. Both written reprimands include a warning: "Further omissions in order compliance will result in corrective action up to and including termination." Simpson refused to sign the second reprimand and, at that time, submitted a response disputing its allegations.

         The third reprimand, in July 2011, was issued after St. James had received three complaints from patients in a single month. According to the Employee Corrective Action Report, Simpson confronted a patient after a family member complained to the supervising nurse about Simpson's strong perfume. Then a few days later, the narrative continues, Simpson and another nurse, Nancy Galderia, were rude to a patient who complained about the room's cleanliness. And, finally, a week after that incident, Simpson ignored a doctor's order to connect the suction for a patient's stomach tube, prompting the patient's family to complain that she had acted as if caring for the patient was a bother. This time the written reprimand warned Simpson that "[a]ny further concerns for behavior, attitude, or work performance will result in termination." Simpson submitted a formal appeal from this third reprimand disputing the accuracy of the allegations made by the complaining patients or family members, but did not allege discrimination. The hospital's CEO, along with the director of nursing, the chief nursing officer, and a panel of Simpson's coworkers reviewed her appeal but upheld the reprimand.

         The last straw, according to St. James, came two months later in September 2011. According to the narrative of the fourth Employee Corrective Action Report, Simpson confronted a patient and removed her morphine pump prematurely after learning about the patient's complaint that Simpson never brought her ice as promised. By the patient's telling, Simpson said she did not "need any bad marks" against her and accused the patient of lying about asking for ice. The reprimand, also referencing the previous allegations against Simpson, cites the hospital's "Employee Code of Behavior, " which authorizes discharge for "major violations" including "[d]iscourteous, abusive or inconsiderate treatment of patients, visitors, physicians or coworkers." Simpson appealed from this reprimand as well-without alleging any discrimination-and the CEO, director of clinical integration, chief nursing officer, and a panel of Simpson's coworkers all agreed that she should be fired.

         St. James also pointed to Simpson's deposition, during which she could not identify any potential comparator. Simpson essentially conceded that she did not have evidence of similarly situated coworkers being treated more favorably: "Everything that's written in the office is between you and the manager … . I just know about myself."

         In opposing St. James's motion for summary judgment, Simpson argued that the defendant's reliance on the Employee Corrective Action Reports was pretextual. Simpson asserted that she had been held to a higher standard than employees who are not African American or were younger than 40. She submitted favorable reviews received from supervisors and patients before Kelly's arrival and a negative review that Kelly had written in 2010. Simpson disputed the truth of the accusations from patients and family members recounted in the reprimands but did not dispute that the accusations had been made.

         Simpson also submitted her own affidavit attesting to personal knowledge of two white nurses, one of them under age 40, who had not been fired or even disciplined after St. James had received complaints from patients. One of those nurses, Simpson asserted, had been accused by a patient of being rude and ...

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