IIL. Discussion

In the current case, Szymanski claims that Defendant retaliated against her for engaging
in protected EEOC activity in violation of Title VII in an intentional and continuing fashion.
Namely, Szymanski alleges that Defendant: was “creating a file” on her in order to discharge her;
falsely accused her of failing to perform patient interviews; excluded her from an educational
lecture and assigned her to see patients; denied her the use of a pager, voice mail, and a key to the
administrative office; removed her from patient care duties to clean patient education files;
excluded her from overtime; suspended her; and ultimately discharged her,

The Seventh Circuit recently clarified the proper standard for analyzing retaliation claims

on summary judgment in Stone v. City of Indianapolis Pub, Utils. Div., 281 F.3d 640, 644 (71h

Cir. 2002) by articulating two routes to summary judgment. Under the first route, a plaintiff may
present direct evidence that she engaged in protected activity and that, as a result, she suffered
some adverse employment action. Id. If the evidence is uncontradicted, plaintiff is entitled to
summary judgment; if, however, the defendant presents unrebutted evidence that it would have
taken the adverse action regardless of any retaliatory motive, the defendant is entitled to
summary judgment. Id. Under the second route, which is the McDonnell Douglas indirect
method, a plaintiff must show that (1) she engaged in protected activity; (2) she was subjected to
adverse employment action; (3) she was performing her job in a satisfactory marmer, and (4) she
was treated less favorably than any other similarly situated employee who did not engage in such
protected activity. Id.; see also Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002),
If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to

articulate a legitimate, noninvidious reason for the adverse action. Stone, 281 F.3d at 644; Hilt.

-13-



nurse practitioners in the ASC: Szymanski, Shirley Muse-Blackstone, Michelle Coleman, and
Cynthia Williams.

Dr. Than Win (Dr, Win”) became the Director of the ASC in January 2000. Dr. Win
was aware of Szymanski’s several EEOC filings, and he also was aware that Szymanski had
identified him as a responsible management official in her disparate pay and retaliation charges
filed with the EEOC in early 2000, Further, Dr. Win participated in pre-trial discovery and
testificd in Szymanski’s initial federal trial held on April 1-3, 2002.

Dr. John Raba is, and was at all times relevant, the Co-Medical Director of the ASC and
Medical Director of the Fantus Health Center (“Fantus”). Dr. Raba acted as Dr. Win’s
immediate supervisor. Dr. Raba also was aware that Szymanski had filed EEOC charges against
the Defendant.

Polices and Procedures Regarding Eligibility for Nurse Practitioners in the ASC

Under the IWinois Nursing and Advanced Practice Act, all Nurse Practitioners practicing
in Illinois must have a written “Collaborative Agreement” (also referred to as “Supervision
Document”) with a physician that conforms to the requirements of the Act. This requirement
applied to all Nurse Practitioners in the ASC in July 2001. Pursuant to this requirement, by
January 3, 2002, the Cook County Bureau of Health Services (the “Bureau”) finalized and put
into effect a policy (the “Bureau Policy”) specific to Advanced Practice Nurses, including Nurse
Practitioners, employed by affiliates of the Bureau. This policy is the only bureau-wide policy
regarding collaborative agreements between physicians and mid-level practitioners. The Bureau
Policy contained the Bureau’s requirements regarding approval of Bureau Mid-Level

Practitioners (“MLPs”) practicing with Bureau health facilities and programs, and it has been

-4.



Luckily for this Court, there is no need to resolve this conundrum at this point because
even if evidence of a causal link is required, Szymanski has produced enough evidence to create
a genuine issue of material fact on that issue. Szymanski filed no less than seven EEOC charges
against Defendant between January 2000 and April 24, 2002 and two federal lawsuits. Further,
her jury trial for her first federal lawsuit commenced on April 1, 2002 and ended April 3, 2002, a
mere five days before Szymanski was suspended. Given that Szymanski participated ina flurry
of EEOC activity, and that her supervisors were well aware of that activity, this Court cannot say
as a matter of law that there is no causal link between Szymanski’s protected activity and her
adverse employment actions.

Similarly Situated Employees

Defendant also argues that Szymanski does not establish a prima facie case of retaliation
because she fails to demonstrate that she was treated differently from any similarly situated
employee who did not engage in statutorily protected expression because the requirement to
secure a Collaborative Agreement applied to all Nurse Practitioners. Contrary to Defendant’s
argument, however, Szymanski has created genuine issues of fact on this issue. There is
evidence in the record that Szymanski may have had a more difficult time in finding physicians
who would agree to work with her as well as evidence that Dr. Raba and/or Dr. Win may have
impeded her efforts in securing a Collaborative Agreement. Thus, this Court finds that
Szymanski has established a prima facie case of retaliation.

Pretext
Once Szymanski establishes a prima facie case of retaliation, the burden shifts to the

employer to articulate a legitimate, noninvidious reason for the adverse action. Stone, 281 F.3d

-17-



Raba spoke with Dr. Brahmbhatt on the phone and Dr, Brahmbhatt indicated to Dr. Raba that he
did not want to be Szymanski’s collaborative physician.’ On April 8, 2002, Szymanski was
suspended for not having a signed collaborative agreement, and she was notificd that a hearing
would be held on April 23, 2002 to discuss her situation.

On April 23, 2002, Szymanski informed Dr. Raba that Dr. Glenn Harrison had agreed to
act as her collaborative physician, and she submitted a Collaborative Agreement signed by Dr.
Harrison,’ Dr. Harrison is an Intemist on staff at the Department of Medicine and Dr. Win
admitted that Dr. Harrison’s signed Collaborative Agreement satisfied each and every
requirement contained in the Bureau Policy. Dr. Raba, however, did not allow Dr. Harrison to
act as Szymanski’s collaborative physician because Dr. Harrison does not work in the Fantus
Clinic; rather, Dr. Harrison works at the Woodlawn Health Center, which is several miles away.

Dr. Harrison would not be allowed to see patients in the Fantus Clinic without the approval of

® On April 19, 2002, Dr. Brahmbhatt submitted a letter to Dr. Raba that stated:
Last month (March), Miss Evelyn Szymanski asked me to sign her
collaborative agreement form for advance nurse practitioner. | told
her that I would need to find out more information regarding this
from the Director of Cook County Hospital. After finding out, |
decided not to sign her form.
On 3/30/02 - Saturday, Miss Evelyn Szymanski paged me. T told
her that I can not sign her collaborative agreement form and asked
her to find another physician for the same.

Dr. Brahmbhatt did not want to be a collaborative physician because he was an hourly paid
physician. He previously acted as a collaborative physician for Cindy Williams, but that was
only for two months.

7 Defendant disputes this fact, arguing that the Plaintiff did not offer proper support.
The Plaintiff submitted, however, a letter dated April 23, 2002 stating that she obtained a
Collaborative Agreement with Dr. Harrison, and a Collaborative Agreement that appears to be
signed by both Szymanski and Dr. Harrison.

-9-



procedures for the review and investigation of such matters, including a procedure for conducting
a hearing in the event that it intends to reduce or terminate the eligibility of an MLP to practice
within Affiliates pursuant to a Supervision Document,

The Bureau Policy further provides that a Bureau Physician delegating collaborative and
prescriptive privileges to an MLP under a Collaborative Agreement must, at a minimum, a)
participate in the formulation of guidelines and privileges included in such agreement; b) be on
the site at least once a month to provide the MLP with direction, consultation, and oversight; c)
be available through (elecommunication with the MLP for consultation on medical problems,
complications, or emergencies; and d) arrange for an alternate physician at times when the
collaborative physician is otherwise unavailable.

Szymanski’s Employment

During November 2000, the Cook County Joint Conference Committee (“JCC”)
tecommended Szymanski’s continued employment as a Nurse Associate in the Department of
Medicine, Division of General Medicine for the period of November 1, 2000 through November
2002. According to Dr. Win, the JCC is specifically authorized to review the credentials of
Nurse Associates and make recommendations concerning their continued employment.

Each Affiliate must adopt a policy that is consistent with the provisions of the Bureau
Policy. In the event that an Affiliate does not adopt a policy, the Bureau’s Policy serves as that
Affiliate’s policy. Fantus, under the direction of Dr. Raba, utilized the Bureau Policy as its
policy for the ASC in which Szymanski worked. According to the Bureau Policy, a

Collaborating Physician can supervise no more than two MLPs. This policy was the only written



implemented within each Bureau Affiliate, including Cook County Hospital and the Cook
County Ambulatory and Community Health Network.

Under the policy, Nurse Practitioners are considered Bureau MLPs. Further, “Bureau
Physician” refers to a licensed physician who provides medical services within Bureau health
facilities and who has been approved by the Medical Director of the Affiliate and the
Chairperson of the department within which he or she provides services to provide medical
direction and oversight to a Bureau MLP pursuant to a Supervision Document within Bureau
facilities and programs. Only Bureau Physicians who have been approved by the Medical
Director of the relevant Affiliate are permitted to enter into Supervision Documents,
Notwithstanding any determination by the MLP Committee that an MLP is eligible, and
notwithstanding approval by the Affiliate Credentials Committee to practice pursuant 10 a
Supervision Document, Bureau Physicians are not obligated to enter into or to maintain a
Supervision Document.

‘The Bureau Policy provides that MLPs secking to practice within Bureau Affiliates must
submit (through the Medical Director) to the Bureau MLP Committee evidence of the
qualifications and a Supervision Document signed by a Bureau Physician. In those instances
where a Bureau Physician refuses to renew or otherwise limit the scope of a collaborative
agreement with an MLP, such physician must: a) notify the MLP Committee in writing of such
action and b) provide immediate written notification to the Chair of the MLP Committee and the
Affiliate Credentials Committee. Upon being advised of such nonrenewal or limitation of a
collaborative agreement, the MLP Committee reviews the information and determines whether it

wishes to hmit or terminate the eligibility of an MLP. The MLP Committee may adopt

-5-



at 644; Hilt-Dyson, 282 F.3d at 465. Defendant's reason for suspending and subscquently
terminating Szymanski was that she was unable to satisfy the minimum requirements of the
Nurse Practitioner position by failing to secure a Collaborative Agreement with a qualified
Bureau Physician. Szymanski, however, has shown that a genuine issue of fact exists regarding
whether Defendant’s reason is pretextual. Szymanski asked no less than four physicians to be
her collaborative physician, and all at least initially seemed interested until they discussed the
matter with Dr, Raba and/or Dr, Win, Further, on April 23, 2002, Szymanski furnished a
Collaborative Agreement signed by Dr. Harrison, which Dr. Raba rejected because Dr. Harrison
does not work on site. Dr. Raba’s reason for rejecting Dr. Harrison, however, was not made
pursuant to the Bureau Policy but to the intemal guidelines he created “sometime in March
2002.” Because this Court finds that the record in this case is replete with material issues of fact
regarding whether Defendant retaliated against Szymanski in firing her, both Plaintiff's and
Defendant’s motions for summary judgment are denied.
TV, Conclusion

For the foregoing reasons, the Plaintiff's and Defendant’s motions for summary judgment

are DENIED in their entirety.

Enter:

David H. Coar
United States District Judge

Dated: November 8, 2002

-18-



that he was not qualified to act as Szymanski’s collaborative physician.’ On March 22, 2002,

Szymanski informed Dr. Raba in writing that Dr. Washy Ahmed had agreed to act as her
collaborating physician. Dr, Ahmed, however, did not agree to act as Szymanski’s collaborating
physician. He initially told her that he was not sure and that he needed to check into it. He then
had some communication with Dr. Win and decided not to serve as Szymanski’s collaborating
physician. His stated reason was that he did not want to be a collaborative physician because he
was employed as a service physician at an hourly rate. On April 12, 2002, Dr. Ahmed submitted
a letter to Dr. Raba stating:

Tam writing this letter to inform you that | have never consented to give my name
as a collaborative physician for a nurse practitioner’s license. I would like to put a
few facts straight for the record. On Friday, March 22, 2002, when I returned
from Ground Rounds, Miss. Szymanski asked me, “will you sign my
Collaborative Physicians Form?” J replied, “I’m not sure what you are talking
about and which form you are speaking of?” I also told her, “let me find out more
about it then Tl (ell you whether I will sign it or not.” After that, T went to the
Core Center in order to continue work. When I returned, I went to Dr. Than
Win’s office to find out about it. There J came to know that Miss, Szymanski
wrote a letter to Dr. Raba that I have promised her to sign the collaborative form,
which was a surprise to me. On Monday morning, I saw Miss. Szymanski in ASC
and she asked about it. She then said “Oh that’s fine.” Then I told her to write a
letter to Dr. Raba regarding this issue, that I have never consented, in order to
rectify the issuc. She then said, “If you don’t want to sign it’s o.k. I understand it,
we can still be friends.” Then she walked out of the area.

Sometime in March 2002, Szymanski asked Dr. Manish Brahmbhatt if he would act as

her collaborative physician and sign a Collaborative Agreement with her. Shortly thereafter, Dr.

> The record is not clear whether Dr. Raba used the word “unqualified” in speaking
with Dr. Parker. Dr. Raba said that he told Dr. Parker that, as a rehab doctor, Dr. Parker
was not trained in the clinical field that staffs the ASC, and he therefore was not qualified to
train Szymanski. It was Dr. Parker’s understanding that Dr. Raba wanted someone in internal
medicine to serve as Szymanski’s collaborative physician, and he said that this made sense to
him. Dr. Parker also believed that Dr. Raba would “check” into getting someone from
internal medicine.

-8-



Minute Onder Frm (08/97)

United States District Court, Northern District of Illinois

Name of Assij 5 Sitting Judge it or
or Mantras Dude David H. Coar “than Aaiped Suge
CASE NUMBER 01 C9588 DATE 11/8/2002
CASE Szymanski v. County of Cook
TITLE

[In the following box (a) indicate the party filing the motion, ¢-g., plaintiff, defendant, 3rd party plaintiff, und (b) state brielly the nature

MOTION: of the motion being presented.]

Plaintiff's and Defendant’s Cross-Motions for Summary Judgment

DOCKET ENTRY:

ap) o Filed motion of [ use listing in “Motion” box above.)
(2) im) Brief in support of motion due
a oO Answer bricfto motion due___. Reply to answer brief due__.
(4) Q Ruling/Hearing on set for at.
(5) oO Status hearing[held/contimued to] [set for/re-set for] on setfor at
(6) Ol Pretrial conference{held/continucd to] [set for/re-set for]on ___—ssct for___ at
(7) oO Trial[set for/re-sct for]on___—_—aat
(8) o [Bench/Jury trial] [Hearing] held/continued to____at
a

(9) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) CGeneralRule21 OFRCP41(a)\(1) Ol FRCP41(a)(2).

(10) i {Other docket entry] For the reasons stated in the attached memorandum opinion and order, the
Plaintiffs and Defendant’s Motions for Summary Judgment [1 10-1] are DENIED in their entirety.

dsl Ooms

Document
Number

39-

(dl) @ [For further detail see attached memorandum opinion and order.]

Na notices required, advised in open court

No natices required, umber vf wtives

Notices mailed by judge's staff. NOY Q 8 2082

Notified counsel by telephone

date duckeleu

f
Ll gy initials

| Docketing lo mail notices.

Mail AQ 450 form. Lunod LOWLSid “sn
Copy to judge/magistrute judge. W319
courtroom S4ZtHd 8- AON 20 este made) mt
mds(Ie) deputy’s
central Clerk's Office mailing Ueputy initials



Besides Szymanski, two other Nurse Practitioners have been suspended and/or terminated
for not having a collaborative agreement: Mary Lesnik and Kathy Antunovich. Lesnik has filed
EEOC charges against Defendant. Specifically, she filed EEOC case number 2002CF0037
against Defendant on July 12, 2001. Further, Lesnik was listed as one of Szymanski’s witnesses
in Szymanski’s first federal lawsuit tried April 1-2, 2002. Lesnik was discharged effective
October 19, 2001. Lesnik, a Nurse Practitioner employed in the Department of Nephrology, was
under the supervision of Dr. George Dunca. Dr. Raba had no firsthand knowledge or
involvement with Lesnik’s situation.

Antunovich was discharged on May 1, 2002, Antunovich currently has a Title VII
Tetaliation case pending in the United States District Court, Northern District of Tllinois, At the
time of her termination, Antunovich had three signed collaborative agreements on file, The first
collaborative agreement was with Dr. Michael McDermott, dated July 11, 2001; the collaborative
agreement signed by Dr. James Calvin, who was unable to continue serving as her collaborative
physician when he ceased working at the ASC full time, is dated August 2, 2002; and the third
collaborative agreement was with Dr. Franklin Saksena, dated April 26, 2002. Antunovich, a
Nurse Practitioner employed in the Department of Cardiology, was not under the supervision of
Dr. Raba, but she was paid out of the ambulatory budget. Dr. Raba had no input into the
decision-making process regarding the proposed collaborative agreements or the decision to
discharge Antunovich,

Szymanski's EEOC Activity
On January 31, 2000, Szymanski filed a discrimination charge against the Defendant with

the Equal Employment Opportunity Commission (“EEOC”), On April 3, 2000, Szymanski

-ll-



the medical director and he therefore was not able to enter into a Collaborative Agreement
without the approval of the medical director. In fact, no Nurse Practitioner in the Fantus
Clinic/ASC under the direction of Dr. Raba has a Bureau Physician employed outside of the
Fantus Clinic/ASC as a collaborative physician.

Szymanski was discharged on April 23, 2002 because she was unable to obtain a
collaborative agreement with a physician. Dr. Raba stated that he has “signed off” on every
collaborative agreement submitted by Nurse Practitioners in the ASC with the sole exception of
Szymanski’s signed agreement. While Dr. Raba discussed Szymanski’s ineligibility with Linda
Strickland (a member of either the MLP Committee or the Credentials Committee), he did not
forward the decision to terminate Szymanski for lack of eligibility to either of these Committees.
It was Dr. Raba’s understanding that it was not necessary to notify the MLP or Credentials
Committees in situations where a nurse practitioner failed to meet the basic requirements of the
Advanced Nurse Practice Act, Rather, as he understood it, only in situations where adverse
actions were the cause of the suspension of privileges was it necessary to notify the committees.

On June 19, 2002, Szymanski sent a request to Ruth Rothstein for a hearing before the
Credentials Committee regarding her termination. On July 22, 2002, Szymanski’s counsel sent a
second request for a hearing to the Credentials Committee regarding Szymanski’s eligibility to

continue her employment at Cook County.*

® At some point prior to her termination, Szymanski had been falsely accused of not
performing patient interviews and Dr. Rahim told her that Cook County was “creating a file on
her.” No action, however, was taken against Szymanski as a result of this alleged surveillance,
nor was she disciplined for failing to perform patient interviews.

-10-



policy in effect at the time Szymanski was suspended.? Under the Fantus/ASC guidelines, there
ate approximately 25 to 30 physicians that would have been qualified and acccptable to act asa
collaborating physician with Szymanski. Of those physicians, Szymanski had a close working
relationship with 5 or 6.

On July 13, 2001, Dr. Than Win signed an “Advanced Practice Nurse/Bureau Physician
Collaborative Practice Agreement” for all four nurse practitioners in the ASC, including
Szymanski. In March 2002, however, Dr. Win became aware that, under the Bureau Policy, he
could only serve as a collaborative physician to two Nurse Practitioners. Dr. Win alrcady signed
prescriptive authority documents with Nurse Practitioners Michelle Coleman and Shirley Muse-
Blackstone, so he informed Szymanski and Cindy Williams that he would no longer be able to
serve as their collaborative physician. In March 2002, Dr. Raba informed Szymanski by letter
that Dr. Win could no longer serve as her collaborative physician and that she would have to
identify another physician by April 5, 2002.‘

On or about March 20, 2002, Szymanski advised Dr, Raba that Dr, Frank Parker had
agreed to act as her collaborative physician. Dr. Parker has been a full-time staff physician in the
ASC for five years, and he has evaluated Szymanski’s clinical performance as a Nurse ‘

Practitioner in the ASC. After receiving notice of Dr. Parker’s willingness to be Szymanski’s

collaborative physician, Dr. Raba called Dr. Parker to his office. Dr. Raba informed Dr. Parker

3 In addition to the Bureau Policy, however, at some point during the spring of 2002,
Fantus adopted guidelines that contained additional criteria a Bureau Physician had to meet in
order to serve as a Collaborating Physician to an MLP. One criterion is that a Collaborating
Physician must “routinely and regularly work[]” in the clinic in which the MLP works.

‘ This notification came approximately two weeks before Szymanski's jury trial on
April 1-3, 2002.

-7-



On cross-motions for summary judgment, each movant must individually satisfy the

requirements of Rule 56. Great West Cas. Co. v. Rogers Cartage Co,, No, 00 C 6621, 2001 WL

1607608, at *1 (N.D. TIl. 2001); Proviso Ass’n of Retarded Citizens v. Village of Westchester,
914 F. Supp. 1555, 1560 (N.D. Ill. 1996). Thus, the traditional standards for summary judgment
still apply cven though both parties have moved for summary judgment. Blum vy. Fisher and
Fisher, Attorneys at Law, 961 F. Supp. 1218, 1222 (N.D, Ill. 1997). This Court thus considers
the merits of each cross-motion separately and draws all reasonable inferences and resolves all
factual uncertainties against the party whose motion is under consideration. Q’Regan v.

Arbitration Forums, Inc., 246 F.2d 975, 983 (7th Cir. 2001). This “Janus-like perspective . ..

sometimes forces the denial of both motions,” but only where there are material facts in dispute.
Buttitta v. City of Chicago, 803 F. Supp. 213, 217 (N.D. Hl. 1992).
TI. Background
The following facts are taken from the parties’ Local Rule 56. 1(a)(3) and (b)(3)
Statement of Material Facts.? Szymanski, a resident of Westchester, Illinois, began her
employment with Defendant at Cook County Hospital on January 3, 1983 as a licensed Nurse

Practitioner in the Ambulatory Screening Clinic (“ASC”). As of July 13, 2001, there were four

2 Unless otherwise indicated by a showing of disagreement, the facts listed below are
undisputed. This Court disregarded responses or portions of responses that either 1) were
unsupported by the portion of the record cited or 2) improperly contained argument instead of
concise admissions or denials, as required by Local Rule 56.1, which this Court strictly
enforces. Further, statements and responses that are not supported by the record are
disregarded. See Johnson v. Indopco Inc., 887 F.Supp. 1092, 1095 (N.D. Ill. 1995). “[A]
lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-
intensive, and neither appellate courts nor district courts are obliged in our adversary system
to scour the record looking for factual disputes.” Greer v. Bd. of Educ, , 267 F.3d 723, 727
(7th Cir, 2001).

3.



Dyson, 282 F.3d at 465, Under this McDonnell Douglas framework, the plaintiff “need not show
even an attenuated causal link.” Stone, 281 F.3d at 645. Once the defendant articulates a
legitimate, noninvidious reason for the adverse action, the burden shifts back to the plaintiff to
demonstrate the pretextual nature of the proffered reason. Hilt-Dyson, 282 F.3d at 465. At this
point, if the plaintiff fails to establish pretext, then her retaliation claim cannot survive summary
judgment. Id. The ultimate burden of persuasion always remains with the plaintiff. Texas Dep't
of Cmty. Affairs v, Burdine, 450 U.S, 248, 253-56 (1981).

Because Szymanski presents no direct evidence of retaliation, which is “evidence that

establishes without resort to inferences from circumstantial evidence,” Stone, 281 F.3d at 644,

she must proceed under the second, burden-shifting method articulated in Stone. The Defendant
argues that Szymanski cammot establish a prima facie case of retaliation. First, Defendant argucs
that the only actions that Szymanski has identified that qualify as adverse employment actions
are her suspension and termination, Defendant argues that the other acts Szymanski identifies in
her briefs--loss of overtime pay, removal from patient care duties, increased surveillance (Le.,
“creating a file” on her), notice of disciplinary actions (including being falsely accused of failing
to perform patient interviews), exclusion from lectures and training sessions, denial of pager,
voice mail, and keys to the administration office--do not constitute adverse employment actions,
Second, the Defendant argues that, while suspension and termination constitute adverse
employment actions, Szymanski still fails to establish a prima facie case of retaliation because
she cannot show that there was a causal link between her EEOC activity and any adverse action,
or that she was treated differently from any similarly situated employee who did not engage in

statutorily protected expression.

-14-



F.3d 437, 440 (7th Cir, 1996) (holding that “not everything that makes an employee unhappy is
actionable)-- it is not clear that, in combination, they do not constitute material alterations of the
conditions of her employment. See Oest v. ill. Dept. of Corrections, 240 F.3d 605, 612 (7th Cir.
2001) (stating that a “materially adverse change might be indicated by a termination of
employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a
matenal loss of benefits, significantly diminished material responsibilities, or other indices that
might he unique to a particular situation”) (emphasis added). Whether she can prove damage as
aresult of these actions is an entirely different matter, not involved in the instant motions.
Causal Connection

Defendant argues that even though Szymanski can show she suffered an adverse
employment action in her suspension and termination from employment, she cannot show that
there is a causal connection between her protected activity and the adverse employment actions.
Under Stone, because Szymanski proceeds with the McDonnell Douglas indirect method to
prove her retaliation claim, she does not need to establish a causal connection, sec 281 F.3d at
645, It is unclear, however, whether Stone broke new ground or mercly suggested another way
of looking at the cases. Compare Fine v. Ryan Int'l Airlines, 305 F.3d 750, 751-52 (7th Cir,

2002) (requiring evidence of a causal link); Wells vy. Unisource Worldwide Inc., 289 F.3d 1001,

1008 (7th Cir, 2002) (affirming summary judgment for employer where employee failed to
establish a causal link between protected activity and an adverse employment action); Franzoni v.
Hartmarx Corp., 300 F.3d 767, 772 (7th Cir. 2002) (same). Thus, it is not entirely clear whether
a plaintiff must demonstrate a causal connection between her protected expression and the

adverse employment action taken against her to survive summary judgment.

-16-



genuine issue of material fact exists for trial when, in viewing the record and all reasonable
inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could
return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 2510 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).

The movant bears the burden of establishing that no genuine issue of material fact exists.
Cclotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct, 2548, 2553 (1986); Hedberg y. Indiana
Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). Ifthe movant meets this burden, the non-movant
must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule
56(e); Celotex, 477 U.S. at 324, 106 §, Ct. at 2553, Because the purpose of summary judgment
is to isolate and dispose of factually unsupported claims, the non-movant must respond to the
motion with evidence setting forth specific facts showing that there is a genuine issue for (rial.

Fed.R.Civ.P 56(e); Michael, 259 F.3d at 845; Albiero v. City of Kankakee, 246 F.3d 927, 932

(7th Cir. 2001). To successfully oppose the motion for summary judgment, the non-movant
carmot rest on the pleadings alone, but must designate specific facts in affidavits, depositions,
answers to interrogatories or admissions that establish that there is a genuine triable issue. Selan
v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). A scintilla of evidence in support of the non-
movant's position is insufficient, and the non-movant “‘must do more than simply show that
there is some metaphysical doubt as to the material fact.’”” Id. (quoting Matsushita Elec. Indus

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); see also Anderson, 477 U.S, at 250, 106

S. Ct. at 2511. Weighing evidence, determining credibility, and drawing reasonable inferences
are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477

USS. at 255, 106 S. Ct. at 2515.

-2-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
EVELYN J.D. SZYMANSKI, )
) No. 01 C9588
Plaintiff, )
) HONORABLE DAVID H. COAR
v. )
)
COUNTY OF COOK )
) DOCKETED
Defendant. )

MAY 0 8 2002

MEMORANDUM OPINION AND ORDER

Evelyn J.D. Szymanski (“Szymanski” or “Plaintiff’) brings a retaliation action against her
employer, County of Cook (“Defendant”) pursuant to Title VII of the Civil Rights Act of 1964
(“Title VIT"), as amended, 42 U.S.C. § 20006¢ et seq.. Szymanski alleges that Defendant
unlawfully retaliated against her for filing discrimination charges with the EEOC and for
bringing a federal discrimination lawsuit against it.' Before this Court are plaintiff Szymanski’s
and Defendant County’s cross motions for summary judgment. For the reasons stated below, this
Court DENIES Plaintiff's and Defendant’s motions for summary judgment in their entirety.

I, Summary Judgment Standard

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show 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.” Tred.

R. Civ. P. 56(c); Michael v. St. Joseph County, et. al., 259 F.3d 842, 845 (7th Cir. 2001). A

' That case, Szymanski v. County of Cook, No. 00 C 4737, also was tried before this
Court.

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amended her EEOC charge to include a claim of retaliation. Specifically, Szymanski alleged that
she was segregated from her coworkers, denied access to her patients, and reassigned to clean
patient education files in retaliation of her EEOC activity. On June 21, 2000, Szymanski filed
another EEOC charge against Defendant alleging that she bad been assigned to “health risk
housekeeping dutics not covered by her job description” in retaliation of her EEOC activity. On
August 4, 2000, Szymanski filed a complaint in the United States District Court, Northem
District of Illinois (No. 00 C 4737) against Defendant alleging discrimination in employment on
the basis of national origin and retaliation pursuant to Title VII of the Civil Rights Act of 1964,
as amended. On July 12, 2001, Szymanski filed another EEOC charge against Defendant
alleging that Defendant subjected her to undue surveillance in order to “‘ercate a file” to cause her
termination without cause on the bases of national origin, race, and retaliation for engaging in
EEOC activity. On August 1, 2001, Szymanski filed an EEOC charge against Defendant alleging
a continuing pattern of discrimination on the bases of national origin, race, and retaliation for
engaging in EEOC activity. On December 17, 2001, Szymanski filed this instant action in this
Court alleging a continuing pattern and practice of discrimination in employment on the basis of
retaliation pursuant to Title VII.

On April 1-3, 2002, Szymanski’s first federal lawsuit, case No. 00 C 4737, was tried by a
jury before this Court. Following a verdict in favor of Defendant, Szymanski filed an appcal to
the Seventh Circuit Court of Appeals. On April 8, 2002, Szymanski filed an EEOC charge
against Defendant alleging she was suspended from her employment in retaliation of her EEOC
activity. On April 24, 2002, Szymanski filed an EEOC charge against Defendant alleging that

she was terminated in retaliation of her EEOC activity.

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Adverse Employment Actions

As to Defendant's argument about adverse employment actions, this Court partially
agrees. Two of the actions that Szymanski identifies as adverse employment actions are claims
that she raised in her first federal lawsuit--loss of overtime pay and removal from patient care
duties--and they therefore have been adjudicated. Szymanski attempts to relitigate these actions
by arguing that, under her “continuing violation” theory, evidence of prior adverse actions is
admissible to establish a pattern and practice of retaliatory animus and/or hostile work
environment. The continuing violation theory, however, was not intended to be used to
circumvent res judicata. Rather, the continuing violation theory “allows a plaintiff to get relief
for a time-barred act by linking it with an act that is within the limitations period.” Selan y.

Kiley, 969 F.2d 560, 564 (7th Cir, 1992): see also E.E.O.C. v, Harvey L. Wamer & Assocs., 91

F.3d 963, 969 (7th Cir. 1996) (quoting same), The purpose of this theory is to permit the
inclusion of acts whose character as discriminatory acts was not apparent at the time they
occurred.” Speer v, Rand McNally & Co., 123 F.3d 658, 663-64 (7th Cir. 1997) (citations

omitted); see also Place vy. Abbott Labs., 215 F.3d 803, 807 (7th Cir. 2000). The statute of

himitations is not an issue in this case, and all of the cases that Plaintiff cites are inapposite.
Thus, Plaintiff may not argue these acts as proof of retaliation in this case.

As to Szymanski’s other allegations--that Defendant increased surveillance on her (i.e.,
“crcat[ed] a file” on her), gave her notice of disciplinary actions (including being falsely accused
of failing to perform patient interviews), excluded her from lectures and training sessions, and
denied her use of pager, voice mail, and keys to the administration office--while they do not

individually constitute material adverse employment actions, see Smart v. Ball State Univ., 89

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