looking around the room and stating, “I know what’s on everyone’s mind”. He then looked directly
at Eamest and asked, “Why is she still here?”. Pawlowicz continued looking straight at Earnest with
a malicious look on his face. Pawlowicz said that Earnest was a “bad seed” that he would “weed
out” and “get rid of’ her. He stated that with the new handbook he could “get rid” of Earnest
without giving a reason or cause and that he would “weed [Earnest] out and get rid of [her] soon, yet
and soon.” He repeated the same thing over and over for about fifteen minutes. He also stated,
“What you’ve done to this hospital.” (Id., | 36; Earnest’s Dep. pp. 61-64).

Bradley was present at the same meeting as Earnest. Bradley recalls Pawlowicz’s using the
words “getting rid of” in connection with his discussion of at-will employment. She also recalls that
Pawlowicz may have referenced a “bad seed” when discussing disciplinary actions. Bradley did not
believe that any comments were directed at a specific employee, including Earnest. (Plaint.’s
56.1(b)(3) Statement { 82; Def.’s Response { 82). Pawlowicz denies that he used the words “get rid
of” and “bad seed”. (Plaint.’s 56.1(b)(3) Statement 4 83).

Based on the events of the Handbook Meeting, Earnest decided to retire because she believed
that she was going to be fired. Earnest did not want to be “escorted out” of the hospital. (Id., 38,
Earnest’s Dep. pp. 70-71). Prior to the Handbook Meeting, Earnest never had expressed any
intention of retiring. (Id., 39). Earnest’s only reason for retiring was due to her age and for
reporting Lostumbo’s misconduct, as Earnest believes was conveyed in Pawlowicz’s comments at
the Handbook meeting. (Plaint.’s 56.1(b)(3) Statement 94).

Earnest worked the night shift of Thursday, June 27, 2002, her first scheduled shift after the
Handbook Meeting. She also worked her shift on June 29, 2002. (Def.’s 56.1(a)(3) Statement 40).

Earnest was scheduled to work on June 30, 2002; but she called in sick. (Id., § 41).



meeting her employer’s legitimate expectations and that she was discharged.

Plaintiff alleges that the adverse employment action was her forced retirement, which
constitutes a constructive discharge.

To establish a constructive discharge, a plaintiff must show that her “working conditions
were so intolerable that a reasonable person would have been compelled to resign.” Simpson v.
Borg-Warner Automotive, Inc., 196 F.3d 873, 877 (7th Cir. 1999). The plaintiff must also show that
the intolerable working conditions were because of impermissible age discrimination. Bennington,
275 F.3d at 660.

To constitute intolerable working conditions, the conditions must be even more egregious
than that of the high standard for hostile work environment because in the “ordinary case, an
employee is expected to remain at work while seeking redress.” See Tutman v. WBBM-TV, Inc., 209
F.3d 1044, 1050 (7th Cir. 2000). Intolerable working conditions have been found in such
environments where an employee was subjected to escalating sexual remarks culminating in a
physical assault and death threat, Brooms v. Regal Tube Co., 881 F.2d 412, 423-24 (7th Cir. 1989);
where a manager held a gun to the employee’s temple, took a picture and then circulated the picture
at a company meeting, stating that “this is what a nigger looks like with a gun to his head”, Taylor
y. Western & Southern Life Ins. Co., 966 F.2d 1188, 1191, 1199 (7th Cir. 1992); and where an
employee’s disputed sexual relationship with her supervisor resulted in a suicide attempt, Snider v.
Consolidated Coal Co., 973 F.2d 555, 557, 561 (7th Cir. 1992).

On the other hand, working environments that do not constitute an intolerable working
condition include: an employee that was shunned, received harassing phone calls, discovered that

someone had gone through their papers in their work locker, and who was told once that his safety


Well, her voice sort of, you know, was breaking, and I felt at that time

I wouldn’t pursue it because I knew she was going to come in on

Monday because I told her — I said, you know, if there’s something

going on at — I was trying to be very empathetic and sympathetic

because I didn’t understand what was going on so I was a little

confused of why she was just retiring on the spot. She said that she

just wanted me to process her retirement...
(Id., (9-44). Bradley also recalls asking Earnest if anything was going on or if anything happened;
Earnest didn’t answer — “she wouldn’t say.” (Id., 143). Based on Earnest’s comments during the
telephone conversation, Bradley understood that Earnest’s last day of work would be June 29, 2002,
and that she wanted her retirement date to be July 1, 2002. (Id., | 45).

On July 1, 2002, Earnest handed Bradley a letter that stated: As of July 1, 2002, I, Deloris
Earnest, am requesting that my retirement come into effect.” (Def.’s 56.1(a)(3) Statement { 47).
Bradley recalls telling Earnest twice at the July 1" meeting that she did not have to retire and that
Earnest could take a leave of absence if something had happened that Earnest did not want to
discuss. (Id., {] 48-49). Earnest’s daughter, Tiffany, who was also at the July 1* meeting, does not
recall Bradley making these statements. (Tiffany’s Dep. pp. 23-28). Bradley also asked Earnest to
do an exit interview, but Earnest refused to do so. (Def.’s 56.1(a)(3) Statement { 50).

On July 1, 2002, Bradley told Mary Kneip, a Shriners’s employee who prepared the nursing
assistants’ work schedule, that Earnest was bringing in a letter stating that she was retiring. Kneip
noticed that Earnest was scheduled to work that night so she made arrangements for the shift to be
covered. Kneip put a line through Earnest’s name on the printed schedule for July 1, 2002. (Def.’s
56.1(a)(3) Statement {] 53).

During her employment, Earnest never complained to Shriners in any fashion at any time

about the comments allegedly made by Pawlowicz at the Handbook Meeting. Earnest was aware


On July 1, 2002, Earnest telephoned Bradley to inquire about retirement. Earnest described
the conversation as follows:

Itelephoned her between 8:00 and 9:00 on July 1, 2002, and I said to
her that I would like to proceed — to find out the process in
proceeding with retirement because I felt like I was being forced to
retire, and her next words were, is anything wrong? I didn’t answer
that for the simple reason I told her I was forced to retire and she was
at the handbook meeting.

(Def.’s $6.1(a)(3) Statement J 42). Bradley, who believed that Earnest telephoned on June 28, 2002,
described this same telephone conversation as follows:

I received a phone call from Deloris Earnest. At first, I thought she
was requesting for an estimate of her retirement benefits and then she
clarified it and she stated that she wanted me to process her
retirement.

eK
[S]he ... stated to me that she was going to be working on Saturday
the 29", but that was going to be her last day that she worked.

oR ee
During the course of the conversation when she clarified that she
wanted me to process her retirement, I told her that usually the
employees let me know like four or five months in advance that
they’re going to retire so they can sort of like get an estimate of what
their monthly amount would be and is that what she wanted me to do.
She reiterated that no, she was retiring and that would I process it,
and at that time I told her well, in order for me to process her
retirement then I would need something from her in writing regardin; ig
that when her last day would be and I could go ahead and process her
retirement. So at that time, she told me that she would come in on
Monday because she had to wait for her daughter and that she would
bring it in then.

kK
I thought maybe something had happened and I was rather concerned
because it was a very odd request. In the 14 years, almost 14 years,
that I had worked at Shriners, I had never had a retirement like that so
it was very awkward to me for her to, you know, just do it like that.
You know, I was glad that she was coming up on Monday because I
thought maybe she and I could sort of talk because I thought we had

a good rapport with one another,
ORK



individual or otherwise discriminate against any individual ... because of such individual’s age.” 29
US.C. § 623(a)(1); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). A plaintiff
may prove discrimination through either direct or circumstantial evidence or the indirect burden-
shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jackson
v. E.J. Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999) (Jackson). Direct evidence is defined as
“evidence, ‘which if believed by the trier of fact, will prove the particular fact in question without
reliance on inference or presumption.” Plair v. E.J. Brach & Sons, 105 F.3d 343, 347 (7" Cir.
1997) (citation omitted). In an employment discrimination case, direct evidence must speak directly
to the issue of discriminatory intent; and it must relate to the specific employment decision in
question. Cowen v. Glenbrook Security Serv., Inc., 123 F.3d 438, 443 (7th Cir. 1997). Plaintiff has
not presented any direct evidence of discrimination; thus, the focus is on the McDonnell Douglas
burden-shifting method. See Credo v. Zema Systems Corp., 944 F. Supp. 677, 682 (N.D. It. 1996)
(Title VII and ADEA claims are analyzed according to McDonnell Douglas).

Under the McDonnell Douglas burden-shifting test, the plaintiff must first establish a prima
facie case by the preponderance of the evidence. Jackson, 176 F.3d at 982. The plaintiff must show
that her age was a determining factor in the employer’s decision. See Adreani v. First Colonial
Bankshares Corp., 154 F.3d 389, 393 (7th Cir. 1998). The plaintiff must establish that: (1) she was
in a protected class (40 years of age or older (29 U.S.C. § 631(a)); (2) she performed her job duties
such that she was meeting her employer’s legitimate expectations; (3) despite her performance, she
suffered an adverse employment action; and (4) similarly situated younger employees were treated
more favorably. See Bennington v. Caterpillar Inc. 275 F.3d 654, 659 (7th Cir. 2001) (Bennington).

In the instant case, Plaintiff has established that she is in a protected class and that she was



Minute Order Fétm (06/97)

United States District Court, Northern District of Illinois

vty Magia Jose John W. Darrah “Thun Asigned Judge
CASE NUMBER 02 C 6533 DATE 9/16/2003
CASE DELORIS EARNEST vs. SHRINERS HOSPITALS FOR CHILDREN
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

as to Count I.

(il) ff [For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

qd) im Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer brief due.

(4) Oo Ruling/Hearingon_____sset for at

(5) ao Status hearing[held/continued to] [set for/re-set for]on__setfor__at

(6) Oo Pretrial conference[held/continued to] (set for/re-set for]on__setfor__——sat__

(7) Qo Trial[set for/re-set for] on__—at

(8) ia [Bench/Jury trial] [Hearing] held/continued to__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) Cl Local Rule 41.1 OO FRCP41(a)(1) 0 FRCP41(a)(2).

(10) a [Other docket entry] | Enter Memorandum Opinion And Order. Shriners’ motion for summary

judgment is denied in part and granted in part. Summary judgment is denied as to Count I and granted

No notices required, advised in open court.

tices required.
No notices reqi number of notices

Notices mailed by judge’s staff.

SEP 18 2003

date docksted

wo | Docketing to mail notices, a
Mail AO 450 form. tea QR

Copy to judge/magistrate judge.

Notified counsel by telephone.

inigals

2irn Hd LY d3S £0

due med notin
courtroom cata
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initials =
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employee that the failure to remember something was “the last straw”; and, when the employee
arrived at work, her belongings were packed and her office was being used for storage. EEOC, 276
F.3d at 332.

Here, Pawlowicz’s comments that Earnest believes were directed at her at the Handbook
Meeting demonstrate a genuine issue of material fact as to whether Shriners acted in a manner so as
to communicate to Earnest that she would be terminated.

Furthermore, “a constructive discharge claim requires evidence that quitting was the only
way the plaintiff could extricate herself from the intolerable conditions.” Sweeney v. West, 149 F.3d
550, 558 (7" Cir. 1998). Here, the individual that made the comments to Earnest, Pawlowicz, was
also the individual that Earnest would speak to concerning any alleged discriminatory conduct at
work. Accordingly, a genuine issue of material fact exists as to whether quitting was the only way
that Earnest could remove herself from the alleged intolerable working conditions.

To establish a prima facie case of retaliatory discharge under Illinois law, a plaintiff must
show that she was (1) discharged, (2) in retaliation for her activities, and (3) that the discharge
violates a clear mandate of public policy. See Hinthorn v. Roland’s of Bloomington, Inc., 119 Ill.
2d 526, 529 (1988) (Hinthorn). Furthermore, while Illinois does not recognize a claim for
“constructive retaliatory discharge”, see Welsh v. Commonwealth Edison Co., 306 Ill. App. 3d 148,
152 (1999), an employee may be determined to have been discharged even though the words “you’re
fired” have not been spoken, see Hinthorn, 119 Ill. 2d at 912. “So long as the employer’s message
that the employee has been involuntarily terminated is clearly and unequivocally communicated to
the employee, there has been an actual discharge, regardless of the form such discharge takes.”

Hinthorn, 119 Ill. 2d at 912.

11



might be in jeopardy, Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886-87 (7th Cir. 1998);
an employee that had a series of work restrictions placed on him, the denial of flex-time requests,
a bar on speaking to coworkers about non-work related matters, and shortened breaks, Rabinovitz
v. Pena, 89 F.3d 482, 489 (7th Cir. 1996); and an employee that received an arbitrary reprimand, was
excluded from office activities, assigned to a fallow sales territory, and received lack of supervisor
support, Harriston vy. Chicago Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993).

In the instant case, when reviewing all of the evidence and the reasonable inferences that may
be drawn from the evidence in the light most favorable to Earnest, a genuine issue of material fact
exists as to whether Earnest’s working conditions were so intolerable that a reasonable person would
have been compelled to resign. The “adverse” working conditions, including a number of comments
made by coworkers that related to Earnest’s age and the alleged comments by Pawlowicz at the June
27" Handbook Meeting, present a genuine issue of whether her working conditions were so
intolerable that a reasonable person would have been compelled to resign.

Earnest also contends that Pawlowicz’s comments at the Handbook Meeting communicated
to Earnest that she would be terminated and, as such, constituted a constructive discharge.

A constructive discharge can also be shown by demonstrating that the employer acts in a
manner so as to communicate to a reasonable employee that she will be terminated, and the
employec resigns. See Equal Employment Opportunity Comm’n v. University of Chicago Hospitals,
276 F.3d 326, 332 (7th Cir. 2002) (EEOC). For example, in EEOC, the court found that the
employee was constructively discharged after the employee’s evaluations became significantly
changed when a new supervisor arrived; the employee was repeatedly accused of failing to follow

directives; the new supervisor was hostile to the employee’s religious beliefs; a supervisor told the

10



that Shriners had established a grievance procedure and discrimination complaint resolution process
to address complaints about coworker’s conduct. (Id., 4 54).

Earnest believes that Pawlowicz and Bradley decided to terminate Earnest’s employment.
(Def.’s 56.1(a)(3) Statement $57). Neither Pawlowicz or Bradley had supervisory authority over
Earnest, and neither had the authority to terminate Earnest’s employment. (Id., {{[ 58-59). Earnest’s
belief that Pawlowicz wanted to terminate her employment is based entirely on her perception of his
comments at the Handbook Meeting, which, she admits, did not include any comments about her
age. (Id., 61). Earnest does not believe that Bradley was biased against her because of her age.
(Id., ] 62).

Following Earnest’s retirement, Lostumbo worked extra hours to cover Earnest’s shift. In
November 2002, Shriners hired Stefania Hudesku as an additional nursing assistant. Hudesku is 36
years old. (Plaint.’s 56.1(b)(3) Statement { 97).

ANALYSIS

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
All the evidence and the reasonable inferences that may be drawn from the evidence are viewed in
the light most favorable to the nonmovant. Miller v. American Family Mutual Ins. Co., 203 F.3d
997, 1003 (7th Cir. 2000). Summary judgment may be granted when no “reasonable jury could
return a verdict for the nonmoving party.” Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).

The Age Discrimination in Employment Act (ADEA) makes it unlawful to “discharge any



observing any of Lostumbo’s conduct. (Id., 24). Neither James Pawlowicz, Shriners’ Human
Resources Director, nor Shirley Bradley, Shriners’ Human Resources Specialist, were aware of any
complaint by Earnest about Lostumbo’s performance of duties beyond her scope of a nursing
assistant. Neither were aware of the discipline that Lostumbo received for performing duties outside
her position. (Id.,§25). Following the May 5" incident, Earnest was labeled “a mole” by Lostumbo
and another registered nurse. (Plaint.’s 56.1(b)(3) Statement {| 72).

On June 27, 2002, Earnest attended one of several meetings Pawlowicz conducted for all
Chicago Shriners’ employees to discuss a new employee handbook. (Def.’s 56.1(a)(3) Statement
4]27). Prior to this meeting, Earnest had two face-to-face conversations with Pawlowicz. The first
meeting was a brief introduction when Pawlowicz first started at Shrines. The second conversation
concerned questions Earnest had about benefits. (Id., 4 28). Pawlowicz does not recall cither
conversation. (Id., 29). Shriners employs approximately 335 employees at the Chicago Hospital,
and Pawlowicz knows approximately one-third of the Chicago employees by name. (Id., 30-31).
Earnest was not one of the employees Pawlowicz knew by name during her employment at Shriners.
(Id., 32). Pawlowicz works primarily during the day and has limited contact with employees, such
as Earnest, who work the night shift. (Id., § 33).

At the Handbook Meeting, which Earnest attended with approximately fifteen other
employees, Pawlowicz discussed Shriners’ policy of employment at will. (Def.’s 561.(a)(3)
Statement { 34). Pawlowicz testified that he directed his comments about employment termination
to everyone in the room. Earnest, who was seated right in front of Pawlowicz, believed that some
of Pawlowicz’s comments referred only to her. (Id., 435).

Earnest testified that Pawlowicz directed his comments to her. These comments included



comments occasionally worked in Earnest’s unit if their unit was not busy. In addition, Earnest
sometimes encountered the nursing assistants when she arrived fifteen minutes before her shift or
at the end of her shift. (Id., § 13). Beginning in 2000, Michaleen LaCivitia, one of Earnest’s
supervisors, made comments on several occasions that the younger nursing assistants “would put
{Earnest] to shame” and had more strength than Plaintiff to work with the adolescent patients.
(Plaint’s 56.1(b)(3) Statement {| 66). Earnest did not complain in any fashion at any time about the
comments made by the nursing assistants. (Def.’s 56.1(a)(3) Statement { 14).

Throughout her employment at Shriners, Earnest received merit increases and positive
performance evaluations from all her supervisors. (Def.’s 56.1(a)(3) Statement § 15). Earnest’s last
two annual evaluations had the higher ratings than Earnest had received previously. (Id., J 16). In
May 2002, Earnest was nominated for the Outstanding Nursing Assistant Award. Earnest finished
second in the voting for this award, the highest she had ever received for this award. (Id., 426).

On May 5, 2002, Earnest was present when Beata Lostumbo, another nursing assistant, asked
Marilyn Ruszkowski, a nurse at Shriners, about changing the dressing on a patient’s wound. (Def.’s
56.1(a)(3) Statement J 17). Earnest asked Ruszkowski why Lostumbo was changing dressings while
Earnest was not; Ruszkowski replied, “Maybe ([Lostumbo] was trained to do them.” (Id., { 18).
Earnest asked Ruszkowski why Earnest had not been trained to do dressing changes and told
Ruszkowski that Lostumbo “ha[d] to have a degree in order to do this at Shriners Hospital.” (Id.,
419). Earnest did not mention Illinois law during her conversation with Ruszkowski, and she is
unaware of any provision of Illinois law that makes it illegal for nursing assistants to change
dressings. (Id., 20). Earnest believed that Lostumbo was disciplined for her conduct through a

conversation she had with LaCivitia. (Id., § 23). Earnest was not disciplined for reporting or


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKE
TED
DELORIS EARNEST, ) SEP 1 8 2003
Plaintiff, }
v. } No. 02 C 6533
SHRINERS HOSPITALS FOR CHILDREN, } Judge John W. Darrah
Defendant. }

MEMORANDUM OPINION AND ORDER

Plaintiff, Deloris Eamest, filed a two-count complaint against Defendant, Shriners Hospitals
for Children, alleging age discrimination and a state claim of retaliatory discharge. Presently before
the Court is Shriners’ Motion for Summary Judgment.

BACKGROUND

Shriners is a network of twenty-two pediatric speciality hospitals located throughout North
America, including a hospital in Chicago, where children receive medical care free of charge.
(Def.’s 56.1(a)(3) Statement ] 10). Shriners hired Earnest as a nursing assistant at its Chicago
hospital in August 1981. (Id., § 11).

Beginning in 1999, other nurse assistants made comments about Earest’s age, including
asking when she was going to retire and telling her it was time for the younger generation to take
over. Beginning in 2000, younger nursing assistants referred to the employees who worked Earnest’s
shift as “old age people”. (Def.’s 56.1(a)(3) Statement 12; Plaint.’s Response to | 12). The six
nursing assistants Earnest identified as making such comments were not assigned to the unit where

Earnest worked during the night shift. However, two of the nursing assistants that made such

ae



For example, in Hinthorn, the court found that an employee was discharged where she signed
a voluntary resignation form. However, in that case, the employer told the employee that she should
seek other employment, informed the employee that she had too many injuries, had the employee
sign a “voluntary resignation” form, and told the employee that, by signing the resignation form, she
would be able to leave her employment under her own free will. See Hinthorn, 119 Ill. 2d at 910.

Earnest concedes that Illinois does not recognize a claim for constructive retaliatory
discharge. Earnest argues that her forced retirement should be construed as a discharge. As
discussed above, a genuine issue of material fact exists as to whether Pawlowicz’s comments at the
Handbook Meeting constitute a clear and unequivocal communication that Earnest was involuntarily
terminated.

However, Earnest has failed to show that her “discharge” was in retaliation for her activities
of informing a supervisor about a coworker’s performance of duties beyond the scope of her work.
Earnest testified that Pawlowicz and Bradley made the decision to terminate her employment.
However, neither Pawlowicz nor Bradley knew about Earnest’s informing a supervisor about the co-
worker’s performance of duties beyond the scope of her work; and neither had the authority to
terminate Earnest’s employment.

CONCLUSION
For the reasons stated above, Shriners’ Motion for Summary Judgment is denied in part and

granted in part. Summary judgment is denied as to Count I

id av as to Count I.
/

Dated: F- Jb -03
TOHN DARRAH
ited/States District Judge

12