REBECCA R. PALLMEYER, District Judge.
Plaintiff Mary Sestak worked as a staff nurse at Northwestern Memorial Hospital from 2000 until 2013. Defendant Northwestern Memorial Healthcare (NMH) terminated Sestak's employment after she accessed the medical records of an infant in the neonatal intensive care unit ("NICU") and provided that infant with "touch therapy." NMH argues that it fired Sestak because it concluded that she violated the Health Insurance Portability and Accountability Act of 1996, NMH's Privacy and Confidentiality Policy, and NMH's Rules of Personal Conduct by "perform[ing] work outside the scope" of her employment. Sestak argues that these rationales are pretextual and that Defendant in fact terminated her on the basis of her age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34. Defendant has moved for summary judgment on this claim, but the court concludes that there are genuine disputes of fact regarding Defendant's motives for her discharge.
Mary Sestak was born on November 27, 1958. (Def.'s Local Rule 56.1 Statement of Material Facts [58] (hereafter "Def.'s SOF") ¶ 1.) She holds a B.S. degree in agriculture and an associate's degree in nursing. (Decl. of Mary Sestak (hereafter "Sestak Decl.") ¶ 1, Ex. 3 to Pl.'s Statement of Material Facts [63] (hereafter "Pl.'s SOF").) She has been licensed as a nurse since June 1985, qualified to work in the areas of labor and delivery. (Id.)
Beginning on August 4, 2000, Sestak worked for NMH as a staff nurse in the labor and delivery department. (Def.'s SOF ¶ 1.) Although the parties dispute whether Sestak ever received informal criticism of her performance, they agree that all her formal performance evaluations were positive. (Pl.'s SOF ¶¶ 4-5; Def.'s Resp. to Pl.'s Statement of Material Facts [84] (hereafter "Def.'s Resp. to Pl.'s SOF") ¶ 4-5.) These evaluations stated, variously, that Sestak "[a]ssesses and cares for patients safely," "[p]rovides competent patient care," "[p]rovides safe patient care," "[d]emonstrates compliance with patient care policies," and "[p]ractices accountability using nursing process." (Pl.'s SOF ¶ 4.) They also stated that Sestak was a "[g]reat RN with lots of experience, 27 plus years" who "[l]oves bedside nursing." (Id.) Sestak received several pay raises during her tenure at NMH. (Id.)
Despite these positive evaluations, Sestak perceived an attitude among some in her Department that "older nurses were taking too long with the patients." (Deposition of Mary Sestak (hereafter "Sestak Dep.") 75:23-24, Ex. 1 to Pl.'s SOF.) At one meeting with her supervisors Kim Armour and Melissa Kelley, for example, Sestak remembers an unidentified individual stating that "older nurses would have difficulty" complying with new guidelines relating to the speed at which patients should be moved "out of labor in delivery," because older nurses "are too slow and spend too much time with patients." (Sestak. Decl. ¶ 10.)
The parties also dispute whether the attitude Sestak describes led to any differential treatment of older nurses at NMH. (Pl.'s SOF ¶ 10; Def.'s Resp. to Pl.'s SOF ¶ 10.) Sestak claims that "older" nurses were often "given really difficult assignments." (Sestak Dep. 159:1.) She recounts one incident in which a charge nurse assigned "a very large patient" to Sestak, rather than "any of the younger nurses that had come up in the queue." (Sestak Dep. 82:20-83:6.)
Sestak further claims that she "observed younger nurses not being disciplined or being less harshly disciplined for things that older nurses were disciplined for." (Pl.'s SOF ¶ 12.) She testifies that "younger people at the hospital" regularly violated policies prohibiting employees from conducting personal business during worktime. (Sestak Dep. 160:16-22.) "They always have their iPhones out, and no one says anything," Sestak claims. (Id.)
NMH disputes Sestak's general allegations of disparate treatment. (Def.'s Resp. to Pl.'s SOF ¶¶ 10-12.) It asserts that of the fifteen employees in Sestak's Department who "separated employment" with NHM in 2013, "only one (1) was over forty (40) years old—Plaintiff." (Def.'s SOF ¶ 55.) But this statistic is not particularly illuminating, as it appears that of those individuals, Plaintiff was the only one terminated by NMH for cause or disciplinary reasons. (Pl.'s SOF Ex. 12.)
On November 5, 2013, Sestak was assigned to care for a patient in the labor and delivery unit who eventually gave birth to twins after Sestak's shift ended. (Def.'s SOF ¶¶ 10-12.) The parties dispute whether Sestak was also "assigned" to care for the twins while their mother was in labor. (Def.'s Resp. to Pl.'s SOF ¶ 14.) Sestak claims that she was assigned to care for both the mother and the unborn babies during this time. (Pl.'s SOF ¶ 14.)
The mother gave birth to twins the next day, while Sestak was not at work. (Def.'s SOF ¶ 12.) After delivery, one of the twins was taken to the neonatal intensive care unit ("NICU") at NMH. (Id.) On November 9, 2013, the infants' father called Sestak and asked her questions about the infant being treated in the NICU. (Pl.'s SOF ¶ 16.)
According to Sestak, she and the infant's parents "had further discussions" in which the parents told Sestak that they were "worried [the infant] was not getting proper care in the NICU." Plaintiff offers no details about when or where these conversations occurred. (Sestak Decl. ¶ 15; Pl.'s SOF ¶ 17.) She does recall that she responded by explaining to the parents that she "was not a NICU nurse, but that [the infant] was in good hands and whatever can be done is being done." (Pl.'s SOF ¶ 17.) The parents then asked what they could do to help, and Sestak "discussed skin to skin and therapeutic touch" with them. (Pl.'s SOF ¶ 17.)
On November 12, 2013, the infant's father sent Sestak a text message asking if she would go to the NICU to help provide "PT" for the infant. (Def.'s SOF ¶ 15.) Sestak responded that she "was busy" and "couldn't come up there," but that she would do so "after the shift." (Id. at ¶ 16.) She again accessed the infant's medical chart "only briefly to see if [the infant] was stable enough for skin to skin." (Pl.'s SOF ¶ 18.)
After her shift ended on November 12, Sestak went to the NICU "intending to meet" the infant's parents "to show them skin to skin and touch therapy." (Def.'s SOF ¶ 19; Pl.'s SOF ¶ 20.)
In NMH's version of events, by contrast, Sestak "was already at the baby's bedside rubbing the arms and legs of the baby" when Hoelting first approached her. (Def.'s Resp. to Pl.'s SOF ¶¶ 23-24; Def.'s SOF ¶ 22.) Sestak "introduced herself to Hoelting as an L&D nurse" and "told Hoelting that she took care of Infant's mother during her stay in L&D." (Id.) She also informed Hoelting that she had "previously read Infant's EEG and MRI results" and "asked what the outcomes were about them." (Id.) Hoelting "was brief with Plaintiff" because Hoelting "was trained to respond to people asking questions about a patients [sic] status by saying the patient is `doing well.'" (Def.'s Resp. to Pl.'s SOF ¶¶ 25-26.) The next morning, Hoelting created a "Northwestern Event Tracking System (`NETS') report regarding Plaintiff visiting Infant in the NICU." (Def.'s SOF ¶ 24.) As noted above, this report stated that a "[l]abor and delivery RN came to patient bedside in the NICU asking questions about patient's status. She said she had been reading the MRI and test results in the chart and asked specific results regarding patient's care. She said she would be back again to visit patient the next day." (NMH0406, Ex. 8 to Def.'s SOF.)
After leaving the NICU on November 12, Sestak sent another text message to the infant's father, stating that she "just went and did massage on [Infant] and will do another tomorrow." (Def.'s SOF ¶ 25.) The following day, Sestak again texted the infant's father, this time stating that she would "come by the [NICU] tonight" and that it was "better to do it after hours when it is quieter." (Id.) After Sestak's shift ended on November 13, she again "used her badge" to enter the NICU. (Def.'s SOF ¶ 27.) Unlike the previous day, Sestak was not wearing her nursing uniform when she entered the NICU. (Id.) This time, at the request of NICU manager Tim Rog, Sestak left the NICU and did not return. (Pl.'s SOF ¶ 27.) NICU nurse Deb Bafia later created a NETS report concerning the incident. (Def.'s SOF ¶ 30; Pl.'s Resp. to Def.'s SOF ¶ 30.) The report stated, among other things, that Bafia "was standing at patient's bedside, when a lady in street clothes walked in asked me if I was the pateint's [sic] nurse, then she began to scrub in." (NMH 0408, Ex. 8 to Def.'s SOF.)
In November 2013, Melissa Kelley and Sue Fulara were Sestak's direct supervisors in the Labor and Delivery Department. (Def.'s SOF ¶ 7.) Kelley, in turn, reported to Kim Armour, NMH's Director of Women's Health. (Id. at ¶ 8.) By November 14, supervisors had become aware of the events described above (the record does not say how), and asked Sestak to attend a meeting with Armour and Kelley, as well as Alexander Masten (NMH's Compliance Program Coordinator) and Eric McGee (a Human Resources consultant assigned to the Labor and Delivery Department). (Pl.'s SOF ¶¶ 29-30; Def.'s SOF ¶¶ 31-35.)
The parties dispute what was said at this meeting. According to Sestak, the discussion focused "almost entirely" on her "viewing the medical charts" of the infant. (Pl.'s SOF ¶ 32.) "No one said anything at the meeting about touch therapy being inappropriate or violating any policy." (Id.) Sestak told the group that the infant's father had given her permission to look at the infant's medical charts, and she showed the father's text messages to Masten and McGee. (Pl.'s SOF ¶ 31.)
NMH denies that Kelley, Armour, Masten, and McGee "were entirely focused on Plaintiff viewing Infant's charts." (Def.'s Resp. to Pl.'s SOF ¶ 32.) It also denies that Masten announced that no HIPAA violation occurred or that Armour made a comment about "older nurses." (Id. at ¶¶ 32-33.) Instead, NMH maintains that Armour told Sestak that if she "felt she couldn't critically think through the boundaries that [Plaintiff] was being upheld to, that any prudent nurse would be upheld to, that maybe it's important that we go and do some education and training." (Id. at ¶ 33.)
The parties also dispute what happened after the meeting. According to Sestak, "Armour made [the] decision to terminate Ms. Sestak on November 18, 2013." (Pl.'s SOF ¶ 36.) Armour did so, Sestak contends, "without looking at any of [Sestak's] past evaluations" and before receiving "documents reflecting Ms. Sestak's access to the baby's medical charts." (Id. at ¶ 37.) Although Armour's decision to terminate was finalized on November 18, Sestak continues, it was not communicated to Sestak until November 22. (Id. at ¶ 39.) In the interim, Eric McGee wrote an e-mail to Armour and others who had attended the November 14 meeting suggesting that the attendees should be "on the same page" concerning the reasons for terminating Sestak. (Id. at ¶ 38.)
To support her account of the timing of the discharge decision, Sestak cites Eric McGee's testimony that the decision "would have been made per Kim Armour's e-mail on the 18th." (Deposition of Eric McGee (hereafter "McGee Dep.") 30:9-13, Ex. 6 to Pl.'s SOF.)
NMH disputes Sestak account about the timing of the decision and identity of the decision makers. According to NMH, "[t]he decision to terminate Plaintiff was made collectively by Armour, Kelley, Masten, and McGee." (Def.'s Resp. to Pl.'s SOF ¶ 36.) This decision was not made on November 18, NMH asserts, but rather on November 22—the same day Sestak learned of it. (Def.'s SOF ¶ 42.) Even if Armour did make the decision, NMH maintains, she did so based on an "investigation" that involved her own "review of patient records, badging records, NETS Reports, and Armour's discussions with Plaintiff where Plaintiff refused to acknowledge that there was an issue with Plaintiff's actions." (Def.'s Resp. to Pl.'s SOF ¶ 37.) And regardless of who made the decision, Defendant claims it was made "because NMH determined that she: (1) violated NMH's Privacy and Confidentiality Policy; (2) violated NMH's Rules for Personal Conduct;
Though NMH contends that Kelley participated in the termination decision, the deposition passages NMH cites do not directly support that contention. Kelley testified at one point that the investigation into Sesak's conduct "was held above me." (Kelley Dep. 60:12-17.) In a second passage, Kelley states that the decision to terminate Sestak was made by "executive leadership and corporate integrity. I don't know who specifically. It was a decision made above my level." (Id. at 43:9-18.)
NMH also cites a form titled "NMH HIPAA Breach Analysis and Risk Assessment Tool," dated December 16, 2013, which refers to "a lengthy, ongoing investigation and numerous conversations with management in the Labor and Delivery Department, conversations with Human Resources, and finally conversations with Mary Sestak." (Deposition of Alexander Masten (hereafter "Masten Dep.") Ex. 2, Ex. 6 to Def.'s Resp. to Pl.'s SOF.) Alexander Masten testified that he drafted this portion of the form, but his knowledge of the investigation was based only on "the meeting that we had with Mary and those other folks." (Id. at 36:1-24.) NMH cites testimony of Eric McGee that it was "all of our opinions" that Sestak had violated the hospital's privacy and confidentiality policy. Similarly, the decision that Sestak had violated the hospital's rules for personal conduct was made by "the group, the director, the manager, myself. I think the senior VP was involved, and, again, in my opinion, it was a violation, and I think everyone concurred." (McGee Dep. 36:1-20.)
Sestak filed a charge of discrimination with the Equal Employment Opportunity Commission on May 6, 2014. (Def.'s SOF ¶ 2.) The EEOC issued a Dismissal and Notice of Rights on March 31, 2016, and Sestak filed this suit on June 20, 2016. (Id. at ¶¶ 2-3.) Defendant now moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
To prevail on a motion for summary judgment, the moving party must demonstrate 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). The materiality of a fact depends on its relation to the underlying claim. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is genuine where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In all employment discrimination cases, the "proper question to ask" at the summary judgment stage "is `whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.'" Ferrill v. Oak-Creek-Franklin Joint School District, 860 F.3d 494, 499 (7th Cir. 2017) (quoting Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016)). Evidence that a proscribed factor caused an adverse employment action "must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself." Ortiz, 834 F.3d at 765.
The parties do not dispute that Sestak was protected by the ADEA when she was fired. (Def.'s Mot. for Summ. J. 9.) Nor do they dispute that she suffered an adverse employment action. (Id.) Rather, they dispute whether the plaintiff has presented sufficient evidence that age was the reason for her discharge. Sestak points to numerous factual disputes relating to this issue, including: (1) whether Kim Armour made an age-related comment at the November 14 meeting; (2) whether NMH treated Moira Hoelting more leniently than Sestak despite Hoelting's alleged participation in the incident on November 12, 2013;
Sestak states in her declaration that Kim Armour told her at the November 14 meeting that "older nurses have difficulty understanding when the mother and baby become separate patients, and that [Armour] was sorry but she had to make an example of me." Sestak Decl. ¶ 25. Sestak also points to her "contemporaneous notes" that "memorialized those comments." (Pl.'s Opp. to Mot. for Summ. J. 10.)
NMH denies that Armour made these comments (Def.'s Reply Mem. in Supp. of Mot. for Summ. J. 7), but the denial shows that there is a genuine dispute about this. NMH's real argument is that the dispute doesn't pertain to a "material" fact, because "[e]ven if true, these alleged statements" are not enough to "create an inference that Plaintiff was fired because of her age." (Id.) In support of this argument, NMH cites Ransom v. CSC Consulting, Inc., 217 F.3d 467 (7th Cir. 2000), a case brought by a former company vice president fired less than two years after he was hired. As evidence that the decision reflected age discrimination, the plaintiff in Ransom cited a statement from CSC's CEO that the company needed to "refresh the officer group" in order to "keep the younger people from leaving." Id. at 469. Affirming summary judgment, the Seventh Circuit held that the CEO's statement was insufficient, on its own, to support an inference of age discrimination. The CEO's statement referred to a "`promote and eliminate' dynamic that had `always' been in play at the companies where he worked, including CSC, A.T. Kearney, and Morgan Stanley." Id. "Direct evidence" of age discrimination, the court observed, "`must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question.'" Id. at 468 (quoting Baron v. Highland Park, 195 F.3d 333, 339 (7th Cir. 1999)).
NMH analogizes Kim Armour's alleged statements to the CEO's statements in Ransom, characterizing them as "general observations about the nursing behavior at NMHC, rather than a direct explanation about Plaintiff's termination." (Def.'s Mem. in Supp. of Mot. for Summ. J. 7.) The analogy is not compelling. Unlike the CEO in Ransom, Armour allegedly said that that she "had to make an example" of Sestak. (Sestak Decl. ¶ 25.) This language explicitly connects Armour's concern about "older nurses" to the question of how NMH should respond to Sestak's actions between November 9 and November 13, 2013. Nothing in Ransom suggests that the CEO similarly connected his general comment about "younger people" to the decision to fire the plaintiff in that case.
NMH also argues that Sestak's interpretation of the phrase "older nurses" is "subjective," and therefore insufficient to support an inference of discrimination. (Def.'s Mem. in Supp. of Mot. for Summ. J. 7.) It is true that the "subjective beliefs" of a plaintiff cannot, without more, "create a genuine issue of material fact." Mills v. First Federal Sav. & Loan Ass'n, 83 F.3d 833, 841 (7th Cir. 1996) (citing McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir. 1989)). But Sestak's interpretation of Armour's alleged statements in this case is not nearly as subjective as those in cases where the court found summary judgment to be appropriate. In Mills, for example, one of the plaintiff's supervisors expressed concern that she "might not be able to keep up" with her job duties. 83 F.3d at 841. This supervisor made no reference to her age. Id. Rather, the plaintiff herself "subjectively perceived these comments as age related" when "they were not necessarily so." Id. Although another supervisor did state, at a different meeting, that the plaintiff "would have a terrible time getting another job because of [her] age," this supervisor "was trying to express empathy and understanding concerning the plaintiff's predicament." Id. at 42. The remark did not have "any discriminatory undertones." Id.
Kim Armour, on the other hand, made explicit reference to "older nurses" as having trouble understanding a practice standard, as well as her own belief about the need to "make an example" of Sestak as a result of this trouble. (Sestak Decl. ¶ 25.) It is, of course, possible to interpret this statement as simply identifying one common trait among nurses who shared Sestak's difficulty meeting NMH's expectations. But the statement can also fairly be interpreted in a way that makes age the driving force behind Armour's decision to fire Sestak. At the very least, there are multiple reasonable interpretations of the statement. Sestak's case, therefore differs from Mills, where the "only . . . reasonable interpretation" was that the plaintiff's supervisors' comments were benign. 83 F.3d at 841.
Armour allegedly made an age-related comment in a meeting focused entirely on Sestak's actions at NMH, rather than in a general conversation about the human resources policies of multiple corporations or about the challenges of being an older job applicant. Armour explicitly connected that age-related comment to the question of how NMH should respond to Sestak's conduct. Four days later, Armour allegedly made the decision to terminate Ms. Sestak's employment. These facts are enough to distinguish Sestak's case from Ransom and Mills. A reasonable jury could conclude on the basis of this evidence that Plaintiff was fired because of her age. See Fakete v. Aetna, Inc., 308 F.3d 335, 339 (3d Cir. 2002) (reasonable jury could find that interviewer's statement to plaintiff that the company preferred "younger single people" was "a clear, direct warning . . . that [plaintiff] was too old to work for [defendant]").
Because Defendant has failed to show the absence of any genuine dispute about a fact that is material to Plaintiff's claim, its motion for summary judgment [36] is denied. Plaintiff's motion to set a briefing schedule on evidentiary objections [87] is terminated as moot.