Wilkins, Sir Ezell v. Riveredge Hospital , 130 F. App'x 823 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 1, 2005
Decided May 10, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2356
SIR EZELL WILKINS, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 02 C 9232
RIVEREDGE HOSPITAL,
Defendant-Appellee. Milton I. Shadur,
Judge.
ORDER
After Riveredge Hospital fired Sir Ezell Wilkins from his position as a mental
health counselor and upheld that decision in a grievance hearing, Wilkins filed suit
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17, alleging
gender discrimination. The district court granted summary judgment in favor of
Riveredge, reasoning that there was not enough evidence to support Wilkins’s
reverse-discrimination claim. We affirm.
I.
Taking all facts and inferences in favor of Wilkins as the nonmoving party,
Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1107 (7th Cir. 2004), we
recount the events underlying his discrimination claim. Wilkins was one of two
No.04-2356 Page 2
full-time male mental health counselors who worked the evening shift in the female
adolescent unit at Riveredge hospital. Female patients in the unit, ranging from
age 12 to 18, suffer mental health issues such as depression, suicidal tendencies,
drug and alcohol abuse, and post-traumatic stress from sexual abuse.
Mental health counselors monitor the safety of the patients and occasionally
become involved in matters of hygiene, such as bathing and menstruation. As part
of their duties, counselors conduct “patient rounds” at 15-minute intervals and
document the patients’ locations on “Psychiatric Nursing Flow Sheets.” This
procedure provides the hospital with a means to account for patients and ensure
they are not harming themselves. The task requires counselors to “eyeball” the
patient when recording her whereabouts.
Pat Thomas, the Riveredge director of patient care services, hired Wilkins at
the same time as Dwayne Ross and Lori Carr, two other mental health counselors.
Elaine Shemroske, the nurse manager of the unit and Thomas’s subordinate,
directly supervised all counselors in the adolescent girls’ unit including Wilkins and
Ross. Shemroske was involved in hiring candidates and could recommend firing
employees.
Shemroske’s personal views about the hospital policy and the misconduct of
two other employees provide the historical backdrop for this case. Shemroske
openly expressed her belief to Thomas and to other nursing managers and
counselors on her unit that Riveredge should staff its adolescent girls’ unit with a
higher ratio of female counselors to males. She advocated that “the reality of the
work” on an adolescent girls’ unit was that sometimes “you really need females,”
referring to issues such as bathing and searches. Shemroske also worried about
unhealthy relationships forming between female patients and male staff members,
noting that the patients often have “rescue fantasies about men” and that “males
needed to be extremely mature and have their own stuff together.” She brought
these concerns to the attention of Thomas, and even went so far as to personally
contact the hospital’s attorneys to ask if she could consider gender in hiring.
Thomas, her boss, disagreed with Shemroske’s views, instead identifying a
“balancing” of male and female staff as the hiring goal and noting that more males
needed to be hired. Shemroske attested in her deposition that she was ultimately
persuaded by Thomas’s position, although she did not say when the change
occurred.
The misconduct of the other employees, as relevant here, established that
failing to accurately record the locations of the patients on their Flow Sheets during
patient rounds is grounds for termination. In July 2001, Riveredge fired a male
and a female employee after an investigation into the escape of two patients
revealed that these employees had falsely documented having seen the patients
No.04-2356 Page 3
during rounds. Afterwards, Thomas and the nurse managers including Shemroske
stressed to counselors that the hospital would not tolerate falsification of records,
and that the “precedent” of termination had been set for such lapses.
The specter of falsified records arose again on November 7, 2001, when
Wilkins inaccurately recorded a Flow Sheet for a patient he discharged earlier that
day; his actions and the hospital’s response triggered this lawsuit. When Wilkins
arrived at work that day at 3:00 p.m., the patients were all confined to the two “day
rooms” because the unit was on “lockdown” due to a missing set of keys. A little
before 6:00 p.m., Shemroske ordered each patient to be confined to her room for the
rest of the night. Moments later, however, Wilkins discharged one of the patients,
Dominque, to her mother and escorted the two outside the facility. According to
Wilkins’s testimony at his deposition, another counselor, Sherri Dean, saw that
Dominque was being discharged. When discharging Dominque, Wilkins pulled her
Flow Sheet from the pile of other patients (a separate sheet is used through an
entire day for each patient) and placed it on the nurse’s desk instead of filing it in a
lock box in accordance with his standard practice. Unbeknownst to Wilkins,
Dominque’s sheet was placed back in the pile with the other patients’ Flow Sheets
during the time he escorted Dominque out of the hospital.
Although staff members generally are responsible for making rounds during
no more than two hours per shift, Wilkins covered for other employees preoccupied
with the lockdown and completed patient rounds at various times between 5:15
p.m. and 11:30 p.m. According to Wilkins, his usual practice was to mark down the
location of each patient and initial her Flow Sheet at the time he observed her. In
his deposition, however, Wilkins claimed that on this occasion, because the patients
were all confined to their rooms when he conducted his rounds, he instead verified
first that each patient was present and then completed all the Flow Sheets at once
without looking at the names on the sheets because the information he was
recording on each sheet was the same. Not realizing that Dominque’s Flow Sheet
had been returned to the stack, Wilkins initialed her as present as well, even
though he obviously knew she was no longer a patient at the hospital. Still,
Wilkins acknowledged at his deposition that a therapy session was held in the day
room that night; he did not say if every patient was at the session or, if not, how he
came to mark Dominque as being at that session between 8:30 and 8:45 p.m.
During those same six hours, Sherri Dean conducted the rounds twice at 10:30 p.m.
and 10:45 p.m. She too marked on Dominque’s Flow Sheet that the patient was in
her room sleeping. While reviewing the Flow Sheets at 11:30 p.m. at the end of his
shift, Wilkins realized that he completed Dominque’s sheet for the period after she
was discharged. Wilkins insists that he placed a post-it note on Dominque’s sheet
advising Shemroske of his mistake and placed the sheet in Shemroske’s mailbox,
although Shemroske never mentioned the note to her supervisors and at her
deposition denied ever receiving it.
No.04-2356 Page 4
The next day Shemroske brought Dominque’s inaccurate sheet to the
attention of Thomas. Thomas and Shemroske came to the conclusion that Wilkins
had falsified Dominque’s Flow Sheet and that he should be terminated for the
offense. Thomas next contacted Karen Lindsey in human resources to inform her of
the proposed termination. Thomas and Lindsey sought and received approval to
terminate Wilkins from CEO Mark Russell, who had sole authority to fire an
employee. When deposed, all four management employees denied knowing at that
time that Dean had also initialed Dominque’s sheet after she was discharged.
Thomas, Shemroske, and Lindsey met with Wilkins when he arrived for work
that day. When Thomas confronted Wilkins with the inaccurate Flow Sheet, he
admitted to making the entries. Thomas informed him that falsifying a report is
grounds for termination and presented him with paperwork for his discharge.
Wilkins was told to put in writing anything he had to say about the events of the
night before. The meeting concluded after Thomas explained the grievance process
to Wilkins.
Shemroske met with Dwayne Ross and the other counselors to inform them
that Wilkins no longer worked at Riveredge but declined to give the reason for his
departure. When Ross approached Shemroske after the meeting, Shemroske
revealed that the discharge related to Wilkins’s falsifying records. According to his
testimony at summary judgment, Ross responded by questioning whether Dean
would also be fired because she “covered for him last night so that means her name
is on there too.” Shemroske did not reply, and there is no evidence that she
confronted Dean or ever relayed Ross’s comments to Thomas or anyone else.
Wilkins appealed his firing through grievance procedures in late November
2001. Typically, the CEO conducts the grievance hearing, but Russell had a
schedule conflict, so Jack Barzilai, the Chief Financial Officer, presided over the
hearing with Lindsey observing. Barzilai denied Wilkins’s appeal because “the
circumstances explained by Mr. Wilkins did not justify or excuse his conduct.”
Having internally grieved his termination to no avail, Wilkins filed a charge with
the Equal Employment Opportunity Commission, alleging gender discrimination
based on the disparate disciplinary treatment given to him as compared to Dean,
who had yet to be confronted about her like handling of Dominque’s Flow Sheet.
Wilkins knew about Dean’s conduct the night of November 7, 2001; he conceded at
his deposition that he never alerted anyone at Riveredge to her similar actions.
All those involved in Wilkins’s termination, including Shemroske, claim to
have first discovered that Dean erroneously completed Dominque’s Flow Sheet
when the EEOC investigator questioned why Dean was not fired along with
Wilkins. Once notified of Dean’s similar conduct, Thomas recommended to CEO
Russell and to Mark Pieart, the new director of human resources, that Dean be
No.04-2356 Page 5
fired, and Russell authorized the termination. Dean appealed her discharge in a
grievance hearing before Russell, who relented. Later during his deposition,
Russell testified that whether to terminate an employee for falsifying documents
was a “reviewable matter,” and explained that he considered various factors in
reviewing Dean’s case, including “the environment, the clinical surroundings and
methodology of entry.” According to Russell, the situation warranted treating Dean
more favorably because (1) Wilkins had “actually facilitated the physical
discharge”; (2) no falsification would have occurred if Wilkins had followed
procedure and removed Dominque’s sheet from the other sheets; and (3) Wilkins’s
entries had Dominque in group, in her room, and sleeping whereas Dean’s entries
only marked Dominque as sleeping.
After receiving a right-to-sue letter from the EEOC, Wilkins filed this suit in
December 2002, alleging gender discrimination. The district court granted
Riveredge’s motion for summary judgment, reasoning that Wilkins lacked sufficient
evidence to support a claim of discrimination under either the direct method or the
indirect method. For the direct method, the court recognized that Shemroske made
comments that could be construed as demonstrating bias against men. But the
court reasoned that Shemroske was not the decisionmaker and, in the court’s view,
there was no evidence that she influenced Thomas, Lindsey, or Russell or played a
role in the grievance procedure. In determinating that Wilkins also could not
establish discrimination through the indirect method, the court reasoned that Dean
was fired immediately upon the discovery of her conduct and later rehired based on
identified differences in her conduct as compared to Wilkins. In addition, the court
commented that different decisionmakers were involved in the grievance processes
for Wilkins and Dean. The court thus concluded that the two were not similarly
situated.
II.
Two potential claims under Title VII could be brought from the different
treatment of Wilkins versus Dean: 1) the immediate firing of Wilkins in contrast to
the several-month delay before Dean was fired and 2) the rehiring of Dean and not
Wilkins. Regarding the first claim, Wilkins does not frame his argument to focus
on the several-month delay in firing Dean, and so we do not address it. See Sauzek
v. Exxon Coal USA, Inc., 202 F.3d 913, 920 (7th Cir. 2000) (initial termination
decision separate and distinct from subsequent decision not to rehire employee).
That said, there may have been merit to a claim suggesting that there was
discrimination in the several-month delay between Wilkins’s termination and
Dean’s based on the role Shemroske played in causing that delay. Shemroske’s
desire to consider gender in hiring counselors suggests a discriminatory animus not
justified by any hospital policy of considering gender a bona fide occupational
qualification. See Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d
No.04-2356 Page 6
1106, 1112 & n.9 (7th Cir. 1998) (when BFOQ not argued, supervisor’s comment
about need for woman in EEO position so that women felt comfortable reporting
harassment was probative of discriminatory intent); Venters v. City of Delphi, 123
F.3d 956, 972-73 (7th Cir. 1997) (remarks by decisionmaker reflecting propensity to
evaluate employees based on illegal criteria are direct evidence of discrimination).
And Shemroske’s withholding from decisionmakers Thomas and Russell key
information—her early knowledge of Dean’s identical behavior and the post-it note
that Wilkins left for her—may have imputed her discriminatory animus to Thomas
and Russell, at least until their independent discovery of Dean’s behavior several
months later. See Lust v. Sealy, Inc., 383 F.3d 580, 583-84 (7th Cir. 2004)
(supervisor who could only recommend promoting employee was not decisionmaker
but could still potentially influence decisionmaker by withholding information);
Maarouf v. Walker Mfg. Co., 210 F.3d 750, 754 (7th Cir. 2000) (comments not tied
directly to termination but showing opinion “clouded” by discriminatory animus
could cast doubt on termination if supervisor influenced decision).
Instead, Wilkins’s claim with regard to his initial firing focuses generally on
Shemroske’s discriminatory animus and her role in the decisionmaking process.
But without a claim focusing on the delay rather than the general decision to fire
Wilkins, the challenge falls away. The decisionmakers, Thomas and Russell, also
fired Dean upon discovery of her conduct, and so the treatment of Wilkins and Dean
for the initial termination decisions ultimately was the same. Hence, there is
insufficient evidence that Shemroske’s discriminatory animus influenced the
overall decisionmaking process. See Cerutti v. BASF Corp., 349 F.3d 1055, 1063
(7th Cir. 2003) (even though subordinates with discriminatory animus participated
in selection panel, no other evidence from which jury could infer that animus
influenced panel’s deliberation to fire employees). Rather, the relevant adverse
action for Wilkins’s claim is the later decision to rehire Dean and not him.
Yet Wilkins cannot succeed on this claim under either the direct or indirect
method. For the direct method, Wilkins must show either through direct or
circumstantial evidence that impermissible consideration of his gender motivated
Riveredge to fire him initially or to uphold that decision in the grievance
proceedings. See Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938-39 (7th Cir.
2003). Where there is no direct evidence of employer’s discriminatory animus, a
“convincing mosaic” of circumstantial evidence pointing “directly to a discriminatory
reason for the employer's action” may suffice. Sartor v. Spherion Corp., 388 F.3d
275, 278 (7th Cir. 2004) (internal quotations and citations omitted). Here it is
undisputed that Shemroske had no role in the grievance proceedings, and so her
discriminatory animus could not have tainted those decisions. See Cerutti, 349
F.3d at 1062 (lack of involvement in decision breaks causal connection with
subordinate’s discriminatory animus). Barzilai’s decision to uphold Wilkins’s
termination was not a rubberstamp of the initial decision to fire him: Barzilai held
No.04-2356 Page 7
a hearing which Lindsey observed where Wilkins had a full opportunity to explain
his conduct. Cf. Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (finding
discriminatory animus of “man on the spot” tainted committee where committee
acted as mere rubberstamp of that employee’s decision). And Barzilai expressed his
reasons for not rehiring Wilkins in his affidavit, noting that he believed that
Wilkins’s explanation did not justify his conduct and that he did not find it
persuasive. Without more to tie Shemroske’s comments to the decision to fire
Wilkins, there is insufficient direct evidence that discriminatory animus motivated
his termination.
Wilkins also fails to establish that genuine issues of material fact exist under
the indirect method established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). For Wilkins to make out a prima facie case in this context, he
needed to establish that (1) background circumstances exist demonstrating that
Riveredge had reason or inclination to discriminate invidiously against males;
(2) that the discipline amounted to an adverse employment action; and (3) that he
was disciplined more harshly than a similarly situated female employee. See
Katerinos v. U.S. Dep’t of the Treasury, 368 F.3d 733, 736 (7th Cir. 2004); Flores v.
Preferred Tech. Group, 182 F.3d 512, 515 (7th Cir. 1999) (plaintiff who was fired
ostensibly for engaging in same misconduct as other employees who were retained
did not need to show that she was meeting employer’s legitimate job expectations in
order to pursue claim for disparate disciplinary treatment). A similarly situated
employee must engage in similar conduct, be subject to the same workplace rules,
and have the same supervisor. Adams, 324 F.3d at 940. With the prima facie case
established, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the discharge. O’Neal v. City of Chicago, 392 F.3d
909, 911 (7th Cir. 2004). The plaintiff can then present evidence that the reason is
pretextual. Id.We need not go beyond the fourth prong of the prima facie case because
Wilkins cannot demonstrate that Dean and he were similarly situated. As
underscored by Russell’s articulation of why he rehired Dean, she committed a less
egregious act than Wilkins. Dean made only two false notations in a half hour
period, whereas Wilkins recorded incorrect entries for five hours. See Peters v.
Renaissance Hotel Operating Co., 307 F.3d 535, 546 (7th Cir. 2002) (employee not
comparable to others who falsified activity logs but were not disciplined because
employee’s falsification more serious and was committed after prior warnings). The
more minor role Dean played presents mitigating circumstances that distinguishes
her conduct from Wilkins and thus Riveredge’s treatment of her. See Ezell v.
Potter, 400 F.3d 1041, 1050 (7th Cir. 2005) (employees not similarly situated where
there are mitigating factors); Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th
Cir. 2002). Because Wilkins failed to establish a prima facie case of discrimination,
our inquiry ends. We AFFIRM the judgment of the district court.