Maldonado v. Ochsner Clinic

Malcolm v. Duckett (Summary)

NEGLIGENT CREDENTIALING

Malcolm v. Duckett, No. L-10-1110 (Ohio Ct. App. Feb. 25, 2011)

An Ohio appeals court affirmed a lower court’s judgment, granting summary judgment to a defendant hospital and dismissing a patient’s claim for negligent credentialing, finding that the plaintiff’s cause of action was time-barred by a two-year statute of limitation.

A cause of action for negligent credentialing accrues when the plaintiff knows or should know that he or she was injured as a result of a hospital’s negligent credentialing procedures or practices. The court ruled that the “alerting” event occurred when the plaintiff, through her attorneys and her expert witness, had knowledge of the physician’s pattern of negligence in prior cases. The court found that this constructive knowledge was sufficient to put her on notice of the need to investigate the facts and circumstances relevant to her claim and to determine whether the medical malpractice of the physician could have been prevented had the hospital credentialed the physician in accordance with the applicable standard of care. However, because this “alerting event” was more than two years prior to the date that the plaintiff filed the negligent credentialing claim against the hospital, the claim for negligent credentialing was time-barred and dismissed.

 

 

Maio v. Aetna Inc

Maio v. Aetna Inc.,
No. 99-1854 (3rd Cir., August 11, 2000)

Plaintiffs filed a class action
suit against Aetna alleging violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) and state law. The plaintiffs alleged that
Aetna engaged in a fraudulent scheme designed to induce individuals to enroll
in its HMO plan by representing “that its primary commitment, in connection
with the healthcare services provided to its HMO members, is to maintain and
improve the quality of care given to such members and that defendants’ policies
are designed to accomplish these goals.” The United States District Court
for the Eastern District of Pennsylvania granted defendants’ motion to dismiss
the RICO claims. The court also dismissed the state law claims without prejudice
for lack of subject matter jurisdiction. The plaintiffs appealed. The United
States Court of Appeals for the Third Circuit affirmed the district court’s
decision. In so ruling, the court found that the appellants failed to establish
that they suffered a tangible economic injury compensable under RICO. In its
opinion, the court said: “a showing of injury requires proof of a concrete
financial loss and not mere injury to a valuable intangible property interest.”

Makris v. Westchester County — Dec. 2002 (Full Case)

 

Anna Makris, etc., appellant,

v.

Westchester County, et al., respondents. (Index No. 246/97)

2000-06613, 2000-09815

Supreme Court, Appellate Division, Second Department, New York

Decided on December 9, 2002

Submitted – October 30, 2002

 

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, STEPHEN
G. CRANE, JJ.

 

APPEARANCES OF COUNSEL

 

Rubert & Gross, P.C. (Soledad Rubert, Arthur Sisser, and

 

Richard Gross of counsel), for

 

appellant.

 

Kanterman & Taub, P.C., New York, N.Y. (Karen L. Wagner

 

of counsel), for respondents

 

Westchester County, Westchester County

 

Medical Center, and Samuel Kasoff.**2

(Cite as: 2002 WL 31761404 (N.Y.A.D. 2 Dept.), 2002 N.Y. Slip Op. 09176, **2 )

 

Rende, Ryan & Downes, LLP, White Plains, N.Y. (Wayne M.

 

Rubin of counsel), for respondents

 

Bruce Roseman, Robert Wolff,

 

Ronald Jacobson, and Martin

 

Kutscher.

 

PER CURIAM OPINION

 

In an action to recover damages for medical malpractice, the plaintiff appeals (1), as limited by
her brief, from so much of an order of the Supreme Court, Westchester County (Coppola, J.),
entered June 19, 2000, as granted the motion of the defendants Westchester County, Westchester
County Medical Center, and Samuel Kasoff for a protective order with respect to her combined
disclosure demands, granted the cross motion of those defendants for a protective order with
respect to stated items in her supplemental disclosure demands, and denied those branches of her
separate cross motions which were to direct those defendants to respond to her combined
disclosure demands and supplemental disclosure demands, and (2) from an order of the same
court, entered September 27, 2000, which granted the motion of the defendants Westchester
County, Westchester County Medical Center, and Samuel Kasoff for a protective order with
respect to stated items in her revised combined disclosure demands.

 

ORDERED that the order entered June 19, 2000, is modified, on the law and in the exercise of
discretion, by (1) deleting the provisions thereof granting those branches of the motion and the
cross motion of the defendants Westchester County, Westchester County Medical Center, and
Samuel Kasoff which were for a protective order with respect to items 1, 6, and 32 of the
documents section of the combined disclosure demands dated February 14, 2000, and denying
those branches of the plaintiff’s cross motions with respect to those items, and substituting
therefor provisions denying those branches of the motion and the separate cross motion with
respect to those items, and granting those branches of the plaintiff’s separate cross motions to the
extent of directing those defendants to provide any statements made or given by an individual
defendant at or to any meeting held pursuant to Education Law § 6527(3) regarding the subject
matter of this action, (2) deleting the provisions thereof granting those branches of the motion
and the cross motion of the defendants Westchester County, Westchester County Medical Center,
and Samuel Kasoff which were for a protective order with respect to items 31, 47, 48, 49, 50,
51, 52, 53, 54, and 55 of the documents section of the combined disclosure demands dated
February 14, 2000, and items 2, 3, 4, 5, and 6 of the supplemental disclosure demands dated
March 24, 2000, and denying those branches of the plaintiff’s separate cross motions with respect
to those items, and substituting therefor provisions denying those branches of the motion and the
cross motion, and granting those branches of the plaintiff’s separate cross motions with respect
to those items, and (3) deleting the provision thereof granting that branch of the motion of the
defendants Westchester County, Westchester County Medical Center, and Samuel Kasoff which
was for a protective order with respect to item 20 of the documents section of the combined
disclosure demands dated February 14, 2000, and substituting therefor a provision denying that
branch of the motion to the extent of directing those defendants to provide the medical staff rules
of the Westchester County Medical Center in effect in October 1987 concerning the
qualifications required to perform shunt revisions and spinal taps; as so modified, the order
entered June 19, 2000, is affirmed insofaras appealed from; without costs or disbursements; and
it is further,

 

ORDERED that the order entered September 27, 2000, is modified, on the law and in the
exercise of discretion, by (1) deleting the provision thereof granting that branch of the motion
which was for a protective order with respect to item 26(i) of the documents section of the
revised combined disclosure demands dated August 3, 2000, and substituting therefor a provision
denying that branch of the motion and directing the defendants Westchester County, Westchester
County Medical Center and Samuel Kasoff to identify the relationship between Westchester
County Medical Center and Dr. John R. Mangiardi; as so modified, the order entered September
27, 2000, is affirmed; without costs or disbursements; and it is further,

 

ORDERED that the defendants Westchester County, Westchester County Medical Center, and
Samuel Kasoff shall produce the records or reports of any meeting held pursuant to Education
Law § 6527(3) involving the subject matter of this action in the Supreme Court, Westchester
County, for an in camera review to determine whether any material therein is exempt from
disclosure; and it is further,

 

ORDERED that the matter is remitted to the Supreme Court, Westchester County, to set a
schedule for compliance and for further proceedings consistent herewith.

The items numbered 1, 6, and 32 in the documents section of the plaintiff’s combined disclosure
demands (duplicated by the items numbered 1, 4, and 21 in the documents section of the
plaintiff’s revised combined disclosure demands), are proper insofar as the plaintiff seeks
disclosure of statements made or given by the individual defendants at or to any meeting held
pursuant to Education Law § 6527(3) involving the subject matter of this action (see vanBergen
v Long Beach Med. Ctr., 277 AD2d 374; Lakshmanan v North Shore Univ. Hosp., 202 AD2d
398, 399; Swartzenberg v Trivedi, 189 AD2d 151, 153- 154). Thus, the defendants Westchester
County, Westchester County Medical Center, and Samuel Kasoff, are directed to produce the
records or reports of any such meeting held in connection with the subject matter of this action
in the Supreme Court, Westchester County. Since these materials may contain confidential
material, the Supreme Court, Westchester County, shall conduct an in camera review and redact
any material which is exempt from disclosure.

 

Item 20 of the documents section of the combined disclosure demands is granted to the extent
it seeks the medical staff rules of the Westchester County Medical Center in effect in October
1987 concerning the qualifications required to perform shunt revisions and spinal taps. This
request was improperly denied since it is intelligible and pertains to the procedures performed
on the infant plaintiff. The order entered September 27, 2000, was addressed to the revised
combined disclosure demands, which repeat demands earlier interposed. To the extent this court
is granting the plaintiff the information she seeks on the appeal from the order entered June 19,
2000, it is unnecessary to grant the same relief on the appeal from the order entered September
27, 2000, with the exception of item 26(i) of the revised combined demands regarding Dr. John
R. Mangiardi, the nature of whose relationship with Westchester County Medical Center was not
requested earlier.

 

While the Supreme Court properly found that many of the other discovery requests were
inappropriate, we find that the items granted herein are not vague, overly broad, unduly
burdensome or call for the production of privileged or irrelevant materials (see Keller v Nieves,
178 AD2d 509, 510; cf. Holness v Chrysler Corp., 220 AD2d 721; Harris v City of New York,
211 AD2d 662, 663; Hirsch v Catholic Med. Center of Brooklyn & Queens, 91 AD2d 1033).

The plaintiff’s remaining contentions are without merit (see Kahre- Richardes Family Foundation
v Village of Baldwinsville, 101 AD2d 689).

 

S. MILLER, J.P., KRAUSMAN, SCHMIDT and CRANE, JJ., concur.

 

ENTER:

James Edward Pelzer

Clerk

N.Y.A.D. 2 Dept. 2002.

Makris v Westchester County

END OF DOCUMENT

Mahorner v. Florida

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JAMES G. MAHORNER,

Plaintiff,

Case No. 3:08-cv-300-J-33TEM

v.
STATE OF FLORIDA and BILL McCOLLUM,
Attorney General of Florida,
Defendants.
_____________________________________/
ORDER
This matter comes before the Court pursuant to Defendants’
Motion to Dismiss or, Alternatively, Motion for Summary Judgment
(Doc. # 3), which was filed on April 21, 2008. Plaintiff filed a
Response in Opposition to Defendants’ dispositive motion on April
28, 2008. (Doc. # 6). Also on April 28, 2008, Plaintiff filed his
Motion for Summary Judgment (Doc. # 7), and Defendants filed their
Response in Opposition to Plaintiff’s Motion for Summary Judgment
on May 1, 2008. (Doc. # 9). On July 9, 2008, Plaintiff filed his
Motion for Accelerated Ruling (Doc. # 11). For the reasons that
follow, this Court grants Defendants’ motion to dismiss the
complaint in this case.
Plaintiff’s Complaint
I.
Pro se Plaintiff James G. Mahorner, a seventy-six-year-old
former practicing attorney, filed his complaint seeking injunctive
and declaratory relief on March 25, 2008. (Doc. # 1).
Specifically, Plaintiff “seeks a declaratory judgment of

unconstitutionality and an injunction barring enforcement of the
assisted suicide provision of Section 782.08, Florida Statute,
Assisting Self-Murder.” (Doc. # 1 at 1). Plaintiff asserts in his
complaint that a medical condition associated with “ischemic
occurrences created by stress” and “multiple mini-strokes” has
depleted Plaintiff’s mental capacity. (Doc. # 1 at ¶ 2.1).
Further, Plaintiff submits that he is “under constant threat of
substantial loss of competency and/or consciousness. Once such
occurs, Plaintiff will have no personal choice and, therefore, must
select his choice and now obtain judicial approval of his choice to
have a non-lingering, quick, medically-created death unrelated to
the pain of starvation.” (Doc. # 1 at ¶ 2.1). Plaintiff desires to
hire a physician to inject him with “a lethal pain-relieving” drug
to hasten his demise. (Doc. # 1 at ¶ 4.1).
However, Florida Statute Section 782.08, Florida’s Assisted-
Suicide Statute, clearly criminalizes assisted suicide: “Every
person deliberately assisting another in the commission of self-
murder shall be guilty of manslaughter, a felony of the second
degree, punishable as provided in Sections 775.082, 775.083, or
775.084.”
Plaintiff asserts a number of arguments in his challenge of
Florida’s Assisted-Suicide Statute, Section 782.08. Prominently,
Plaintiff asserts that Florida’s Assisted-Suicide Statute violates
the Equal Protection Clause as well as the Due Process Clause of

2

the Fourteenth Amendment. Notably, Plaintiff argues:
The statute -– by making assistance by physicians,
family, or others a felony –- prevents competent,
terminally ill adults from exercising the right to choose
or pre-choose, before the occurrence of illness, the
hastening of inevitable death by a medically assisted
quick procedure that avoids lingering, painful death by
starvation. The statute denies these individuals the
liberty and privacy to decide what to do with their own
bodies and lives and forces them to endure pain, anguish,
and loss of dignity through a tortuous death rather than
receiving a medically assisted non-tortuous, painless
death. The statute denies the equal protection given to
convicted murders who are guaranteed a quick, painless
death under a medical procedure. It denies the painless,
medically assisted death given to dogs and other animals
because a dog owner permits death by starvation rather
than the quick medically assisted death given by a
veterinarian, the owner is sentenced for the felony of
the aggravated animal abuse. The statute denies the
equal protection given to those quickly terminated by
removal from life supporting pulmonary machines. The
last four months of life in a medical situation are more
expensive than the treatment given during the preceding
adult lifetime. The tortuous lingering death required by
anti-assisted suicide statutes takes plaintiff’s property
without due process so that the transfer of plaintiff’s
funds to the hospital provides extensive taxes for
federal and other governments that impact plaintiff and
other[s] similarly situated.
(Doc. # 1 at 1-2).
Thus, Plaintiff contends that, under Florida’s Assisted-Suicide
Statute, he fares worse than criminals facing the death penalty and
dogs euthanized by veterinarians. In addition, Plaintiff contends
that the Florida Assisted-Suicide Statute “denies [him] the equal
protection given to those quickly terminated by removal from life
supporting pulmonary machines.” (Doc. # 1 at 2). Further,
Plaintiff asserts, “Women are given control of their bodies with

3

medically assisted abortion and the denial of such comparable right
to males who have highly limited control of their bodies at time of
death is as chauvinistic as the draft laws of the past.” (Doc. # 1
at 2).1
Plaintiff seeks a declaration from this Court that the
Florida Assisted-Suicide Statute is unconstitutional. In the
alternative, Plaintiff seeks an order from this Court allowing him
to hire a physician to hasten his death under certain conditions.
II. Defendants’ Motion to Dismiss or Motion for Summary Judgment
Defendants assert that Plaintiff’s complaint should be
dismissed for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, or, in the alternative, that this
Court should enter summary judgment in favor of Defendants because
the United States Supreme Court has squarely addressed this issue
and Plaintiff has no right to an assisted suicide. See Washington
v. Glucksberg, 521 U.S. 702 (1997). The Court will address these
issues in turn.
III. Legal Standard
Motion to Dismiss
A.

1 Plaintiff’s complaint also contains a number of unsupported
and inflammatory allegations which appear to be unrelated to
Plaintiff’s pending request. For example, Plaintiff asserts,
“Special children whose blood type brings thousands of dollars per
withdrawal are kidnapped and held in slavery for their
productivity.” (Doc. # 1 at 1). This Court’s present order has
attempted to separate the wheat from the chaff.
4

On a motion to dismiss, a district court must accept as true
all the allegations in the complaint and construe them in the light
most favorable to the plaintiff. Jackson v. Bellsouth Telecomms.,
372 F.3d 1250, 1262 (11th Cir. 2004). A court must favor the
plaintiff with all reasonable inferences from the allegations in
the complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990) (“On a motion to dismiss, the
facts stated in [the] complaint and all reasonable inferences
therefrom are taken as true.”). The complaint may not be dismissed
if the factual allegations, taken as true, suffice to “raise a
right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1964–65 (2007) (concluding that complaint
need not state “detailed factual allegations” but must state
sufficient factual allegations to raise right to relief above
speculative level). Thus, a complaint may be dismissed only if all
the factual allegations, taken as true and construed in the light
most favorable to the plaintiff, fail to raise a right to relief
above the speculative level.
B.
Motion for Summary Judgment
Summary judgment is appropriate “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 judgment as a matter of law.” Fed.R.Civ.P. 56(c). A factual

5

dispute alone is not enough to defeat a properly pled motion for
summary judgment; only the existence of a genuine issue of material
fact will preclude a grant of summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996)(citing Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,
918 (11th Cir. 1993)). A fact is material if it may affect the
outcome of the suit under the governing law. Allen v. Tyson Foods,
Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears
the initial burden of showing the court, by reference to materials
on file, that there are no genuine issues of material fact that
should be decided at trial. Hickson Corp. v. N. Crossarm Co.,
Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)(citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). “When a moving party has
discharged its burden, the non-moving party must then ‘go beyond
the pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.
1995)(citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations or
evidence, the non-moving party’s evidence is presumed to be true

6

and all reasonable inferences must be drawn in the non-moving
party’s favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161,
1164 (11th Cir. 2003). If a reasonable fact finder evaluating the
evidence could draw more than one inference from the facts, and if
that inference introduces a genuine issue of material fact, the
court should not grant summary judgment. Samples ex rel. Samples
v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988)(citing
Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835
F.2d 855, 856 (11th Cir. 1988)). However, if non-movant’s response
consists of nothing “more than a repetition of his conclusional
allegations,” summary judgment is not only proper, but required.
Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981), cert. denied,
456 U.S. 1010 (1982).
IV. Analysis
This Court has had the opportunity to review case law from the
United States Supreme Court, as well as from the Florida Supreme
Court, which direct the dismissal of Plaintiff’s complaint. This
Court appreciates that Plaintiff may be facing difficult issues
which, subjectively, cause Plaintiff to question the value of his
own life; however, this Court cannot provide the relief that
Plaintiff seeks via his complaint.
This Court will begin its analysis with a discussion of
Washington v. Glucksberg, 521 U.S. 702 (1997), a case which is
squarely on point and decisive as to the primary issues presented

7

in this case. In Glucksberg, physicians, terminally ill patients,
and “Compassion in Dying” an advocacy group, petitioned the
district court for an order finding that Washington’s ban of
physician-assisted suicide was unconstitutional. Similar to the
arguments presented by Plaintiff in the present case, the
plaintiffs in Glucksberg asserted “the existence of a liberty
interest protected by the Fourteenth Amendment which extends to a
personal choice by a mentally competent, terminally ill adult to
commit physician-assisted suicide.” Id. at 708. The district court
agreed with the plaintiffs and entered an order declaring
Washington’s statute barring physician-assisted suicide to be
unconstitutional. Id. The district court found that the statute
in question “places an undue burden on the exercise of [that]
constitutionally protected liberty interest . . . [and] violated
the Equal Protection Clause’s requirement that all persons
similarly situated be treated alike.” Id. at 708 (internal
citations omitted).
The defendants in Glucksberg, the State of Washington and its
Attorney General, appealed the district court’s ruling to the Ninth
Circuit. Id. A panel of the Court of Appeals for the Ninth Circuit
reversed the district court’s order, noting, “in the two hundred
and five years of our existence no constitutional right to aid in
killing oneself has ever been asserted and upheld by a court of
final jurisdiction.” Id. at 708-709 (citing Compassion in Dying v.

8

Washington, 49 F.3d 586, 591 (1995). Thereafter, the Ninth Circuit
reheard the case en banc, reversed the panel’s decision, and
affirmed the district court. Glucksberg, 521 U.S. at 709 (citing
Compassion in Dying v. Washington, 79 F.3d 790 (1996). The Ninth
Circuit upheld the district court’s order finding the ban of
assisted suicide as unconstitutional, emphasizing “the Constitution
encompasses a due process liberty interest in controlling the time
and manner of one’s death –- that there is, in short, a
constitutionally-recognized right to die.” Glucksberg, 521 U.S. at
709 (citing Compassion in Dying v. Washington, 79 F.3d at 816. The
Ninth Circuit did not address the district court’s equal protection
holding.
The United States Supreme Court granted certiorari and
reversed. The Court delved into a lengthy Due Process analysis
“examining our Nation’s history, legal traditions, and practices,”
noting that “[i]n almost every State –- indeed, in almost every
western democracy -– it is a crime to assist suicide.” Glucksberg,
521 U.S. at 710. The Court continued, “The States’ assisted-
suicide bans are not innovations. Rather, they are longstanding
expressions of the States’ commitment to the protection and
preservation of all human life.” Id. The Court further noted,
“opposition to and condemnation of suicide -– and, therefore, of
assisting suicide -– are consistent and enduring themes of our
philosophical, legal, and cultural heritages.” Id. at 711.

9

The Court described the history of assisted-suicide law and
then opened the door to debate, noting, “[t]hough deeply rooted,
the States’ assisted-suicide bans have in recent years been
reexamined and, generally, reaffirmed.” Id. at 716. The Court
explained that, due to advances in medicine and technology
“Americans today are increasingly likely to die in institutions,
from chronic illness.” Id. Due to this shift, “public concern and
democratic action are sharply focused on how best to protect
dignity and independence at the end of life.” Id. Against this
backdrop, the Court determined:
The history of the law’s treatment of assisted suicide in
this country has been and continues to be one of the
rejection of nearly all efforts to permit it. That being
the case, our decisions lead us to conclude that the
asserted “right” to assistance in committing suicide is
not a fundamental liberty interest protected by the Due
Process Clause. The Constitution also requires, however,
that Washington’s assisted-suicide ban be rationally
related to legitimate government interests. . . . This
requirement is unquestionably met here.
Id. at 728.
In closing, the Court indicated that Washington’s assisted-
suicide statute does not violate the Fourteenth Amendment either on
its face or as applied to competent, terminally ill adults who wish
to hasten their death. Id. at 735.2 “The question presented in

2 The Court invited future discussion; however, noting:
“Throughout the Nation, Americans are engaged in an earnest and
profound debate about the morality, legality, and practicality of
physician-assisted suicide. Our holding permits this debate to
10

this case is whether Washington’s prohibition against ‘causing’ or
‘aiding’ a suicide offends the Fourteenth Amendment to the United
States Constitution. We hold that it does not.” Id. at 705-706.
In a concurring opinion, Justice Stevens provides further
illumination of the issue before this Court. Commenting on the
sanctity of life and the value that each human being inherently
possesses, Justice Stevens offered as follows:
History and tradition provide ample support for refusing
to recognize an open-ended constitutional right to commit
suicide. Much more than the State’s paternalistic
interest in protecting the individual from the
irrevocable consequences of an ill-advised decision
motivated by temporary concerns is at stake. There is
truth in John Donne’s observation that “No man is an
island.”3 The State has an interest in preserving and
fostering the benefits that every human being may provide
to the community — a community that thrives on the
exchange of ideas, expressions of affection, shared
memories and humorous incidents as well as on the
material contributions that its members create and
support. The value to others of a person’s life is far
too precious to allow the individual to claim a
constitutional entitlement to complete autonomy in making
a decision to end that life. Thus, I fully agree with
the Court that the “liberty” protected by the Due Process

continue, as it should in a democratic society.” Id. at 735.
3 “Who casts not up his eyes to the sun when it rises? but who
takes off his eye from a comet when that breaks out? Who bends not
his ear to any bell which upon any occasion rings? but who can
remove it from that bell which is passing a piece of himself out of
this world? No man is an island, entire of itself; every man is a
piece of the continent, a part of the main. If a clod be washed
away by the sea, Europe is the less, as well as if a promontory
were, as well as if a manor of thy friend’s or of thine own were;
any man’s death diminishes me, because I am involved in mankind;
and therefore, never send to know for whom the bell tolls; it tolls
for thee.” J. Donne, Meditation No. 17, Devotions Upon Emergent
Occasions 86, 87 (A. Raspa ed. 1987).
11

Clause does not include a categorical “right to commit
suicide which itself includes the right to assistance in
doing so.”
Id. at 740-741.
Justice Stevens’ enlightening comments concerning the
intrinsic value of each human life are juxtaposed with the
following admonition, which is particularly pertinent to the
present case: “A State, like Washington, that has authorized the
death penalty and thereby has concluded that the sanctity of human
life does not require that it always be preserved, must acknowledge
that there are situations in which an interest in hastening death
is legitimate. Indeed, not only is that interest sometimes
legitimate, I am also convinced that there are times when it is
entitled to constitutional protection.” Id. at 741.
Thus, Glucksberg established that a statutory ban of assisted-
suicide does not violate the Due Process Clause of the Fourteenth
Amendment. On the very same day that Glucksberg was decided, the
Court issued a companion decision in Vacco v. Quill, 521 U.S. 793
(1997). In Vacco, the Court upheld New York’s statutory ban of
assisted-suicide against an argument that it violated the Equal
Protection Clause of the Fourteenth Amendment. Specifically, the
plaintiffs in Vacco, physicians and terminally ill adults,
petitioned the district court for an order overturning New York’s
ban of assisted-suicide and argued “because New York permits a
competent person to refuse life-sustaining medical treatment, and

12

because refusal of such treatment is ‘essentially the same thing,’
as physician suicide, New York’s assisted-suicide ban violates the
Equal Protection clause. Id. at 798 (citing Quill v. Koppell, 870
F. Supp. 78, 84 (SDNY 1994)). The district court denied the
petitioners’ request and ruled, “It is hardly unreasonable or
irrational for the State to recognize a difference between allowing
nature to take its course, even in the most severe situations, and
intentionally using an artificial death-producing device.” Id. at
84-85. However, the Court of Appeals for the Second Circuit
reversed the district court and determined that “New York law does
not treat equally all competent persons who are in the final stages
of fatal illness and wish to hasten their deaths. . . . [t]hose in
the final stages of terminal illness who are on life-support
systems are allowed to hasten their deaths by directing the removal
of such systems; but those who are similarly situated, except for
the previous attachment of life-sustaining equipment, are not
allowed to hasten death by self-administering prescribed drugs.”
Id. at 727-729. The Second Circuit determined that “the ending of
life by [the withdrawal of life-support systems] is nothing more
nor less than assisted suicide.” Id. at 729. The Second Circuit
concluded, “to the extent that New York’s statutes prohibit a
physician from prescribing medications to be self-administered by
a mentally competent, terminally ill person in the final stages of
his terminal illness, they are not rationally related to any

13

legitimate state interest.” Id. at 731.
The Supreme Court reversed the Second Circuit and affirmed the
district court, finding that the following “legitimate state
interests” satisfy the constitutional requirement that a
legislative classification bear a rational relation to some
legitimate end: “prohibiting intentional killing and preserving
life; preventing suicide; maintaining physicians’ role as their
patients’ healers; protecting vulnerable people from indifference,
prejudice, and psychological and financial pressure to end their
lives; and avoiding the possible slide towards euthanasia.” Vacco,
521 U.S. at 808-809. The Court concluded: “Logic and contemporary
practice support New York’s judgment that the acts [withdrawal of
life-support systems versus physician-assisted suicide] are
different, and New York may, therefore, consistent with the
Constitution, treat them differently.” Id. at 808.
Similarly, the Florida Supreme Court in Krischer v. McIver,
697 So. 2d 97 (1997), upheld Florida’s Assisted-Suicide Statute
which is in question in the present case. The Florida Supreme
Court relied upon Glucksberg to determine that Florida’s ban of
assisted-suicide did not violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. 697 So. 2d
at 100. In addition, the Florida Supreme Court relied upon Vacco
to determine that Florida’s Assisted-Suicide Statute did not
violate the Equal Protection Clause of the Fourteenth Amendment to

14

the United States Constitution. Id. After exhaustive analysis, the
Florida Supreme Court in Krischer also determined that the
Assisted-Suicide Statute passed constitutional muster under
Florida’s State Constitution, particularly under Florida’s
guarantee of privacy contained in the Florida Constitution’s
declaration of rights, Article I, Section 23, Florida Constitution.
Id. at 104.
It is clear that this Court is on solid ground in determining
that Plaintiff’s complaint fails to state a cause of action under
Rule 12(b)(6) of the Federal Rules of Civil Procedure and, to the
extent it seeks relief under the Fourteenth Amendment, is subject
to dismissal under Glucksberg, Vacco, and Krischer. This Court
will now take the opportunity to emphasize its refusal to grant the
relief that Plaintiff seeks. Plaintiff requests, among other
things: “an order that provides for him to receive from a physician
a lethal pain-relieving injection of the nature given to those
being executed should a physician of plaintiff’s enter into
plaintiff’s medical record a statement that plaintiff has less than
a 30% chance within three months of obtaining a mental capacity of
75 I.Q. points or a statement that plaintiff has less than a 30%
chance within three months of improving his physical capacity to
30% of the norm for his age.” (Doc. # 1 at ¶ 4.5).
An opinion lifting the statutory ban of assisted-suicide in
this case due to Plaintiff’s diminished mental capacity and on the

15

loose standards that he enumerates would constitute a great
miscarriage of justice. In addition to authorizing the imprudent
extinguishment of Plaintiff’s own existence, such an order could
open the door to future arguments comparing the quality of one’s
life with one’s intellectual capabilities, as reflected on a
standardized IQ test.4 This is especially troubling as Plaintiff
requests an order allowing physician-assisted suicide upon his IQ
falling to 70 points -– the highest possible score that a person
can have while still qualifying as “mentally retarded” under
generally accepted standards. This Court’s independent research
reveals the following excerpt from Atkins v. Virginia, 536 U.S. 304
(2002):
The Wechsler Adult Intelligence Scales Test (WAIS-III)
[is] the standard instrument in the United States for
assessing intellectual functioning. . . . The test
measures an intelligence range from 45 to 155. The mean
score of the test is 100, which means that a person
receiving a score of 100 is considered to have an average
level of cognitive functioning. It is estimated that
between 1 and 3 percent of the population has an IQ
between 70 and 75 or lower, which is typically considered
the cutoff IQ score for the intellectual function prong
of the mental retardation definition.
Atkins, 536 U.S. at 309 n.5. (Internal citations omitted).
Plaintiff’s arguments regarding his diminished IQ are supported by
unquestionably inappropriate conclusions.

4 While Plaintiff generally mentions his physical capabilities,
it seems apparent to this Court that Plaintiff’s primary concern,
as a member of MENSA and former practicing attorney, is his
intellectual ability.

16

Furthermore, Plaintiff’s assertion that dogs scheduled for
euthanasia and convicted criminals awaiting execution are similarly
situated to Plaintiff for Equal Protection analysis is unworthy of
further analysis, as is Plaintiff’s comparison of abortion and
physician assisted-suicide. Plaintiff’s arguments are insufficient
to fell Florida’s Assisted-Suicide Statute, a version of which has
been in place since 1868.5 This Court will not declare Florida’s
Assisted-Suicide Statute unconstitutional. Furthermore, this Court
denies Plaintiff’s request for an order specifically allowing him
to hire a physician to terminate his own life when his IQ reaches
70 or upon any other circumstance. The vast shift in the well-
established legal landscape that Plaintiff requests in this case is
not substantiated by Plaintiff’s complaint. This Court thus grants
Defendant’s motion to dismiss the complaint.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Defendants’ Motion to Dismiss or, Alternatively, Motion for
Summary Judgment (Doc. # 3) is GRANTED.
(2) Plaintiff’s complaint (Doc. # 1) is dismissed.

5 See Krischer, 697 So. 2d at 100 (“Florida imposes criminal
responsibility on those who assist others in committing suicide.
Section 782.08, Florida Statutes (1995), which was first enacted in
1868, provides in pertinent part that every person deliberately
assisting another in the commission of self murder shall be guilty
of manslaughter. Thus, it is clear that the public policy of this
state as expressed by the legislature is opposed to assisted
suicide.”)(internal citations omitted).
17

(3) The Clerk is directed to terminate all pending motions,
enter judgment accordingly, and to close the case.
DONE and ORDERED in Chambers in Jacksonville, Florida, this
14th day of July, 2008.

Copies: All Parties of Record

18

Magruder v. Jasper County Hosp.,

Magruder v. Jasper County Hosp.,
No. 4:01 CV 0067 (N.D. Ind. Jan. 30, 2003)

The United States District Court for the Northern District of Indiana granted
a hospital summary judgment dismissing a patient’s EMTALA claim in a malpractice
case. Recognizing that EMTALA has not been construed to establish a national
standard of care, the court noted case law establishing that the EMTALA’s statutory
duty to screen patients is fulfilled if the screening examination is reasonably
calculated to identify critical medical conditions affecting the patient. The
court held there was insufficient evidence presented to establish a claim under
the screening requirement of EMTALA.

 

 

Madsen v. Idaho Emergency Physicians, P.A. – Summary

TITLE VII

Madsen v. Idaho Emergency Physicians, P.A. , No. CV-09-243-S-EJL (D. Idaho July 22, 2010)

The United States District Court for the District of Idaho granted a physician’s motion to reconsider an order of summary judgment against her in an employment discrimination case she filed against a physician group. The court found that the physician’s claims were not time-barred because a 300-day statute of limitations applied to the physician’s claims.

The physician had initially filed her complaint with an Idaho human rights agency that had a work share agreement with the Equal Employment Opportunity Commission ("EEOC"), which allowed the agency to constructively receive EEOC charges as the EEOC’s agent. The work share agreement allowed a party to file a charge with a state agency within 240 days of the alleged unlawful employment practice and trigger the 300-day statute of limitations.

The court also agreed to reconsider whether the physician alleged an act contributing to her hostile work environment claim against the group within the 300-day period and whether the continuing harm doctrine could be applied to her hostile work environment claim.

 

MacManus v. Chattanooga-Hamilton County Hosp. Auth.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA

H. CAMERON MACMANUS,

Plaintiff,

v.

CHATTANOOGA-HAMILTON COUNTY
HOSPITAL AUTHORITY d/b/a Erlanger
Hospital and BLEDSOE COUNTY,
TENNESSEE,

Defendants.

)
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Case No. 1:08-cv-96
Judge Mattice

MEMORANDUM AND ORDER

Plaintiff H. Cameron MacManus initially filed this action in the Chancery Court of

Bledsoe County, Tennessee against Defendants Chattanooga-Hamilton County Hospital

Authority d/b/a Erlanger Hospital and Bledsoe County, Tennessee alleging breach of

contract, procurement of a breach of contract in violation of Tenn. Code § 46-50-109,

tortious interference with Plaintiff’s contractual relationships, and interference with

Plaintiff’s prospective business advantages. (Court Doc. 1-2.) Defendant removed the

case to this Court pursuant to 28 U.S.C. § 1441. (Court Doc. 1-1.)

Before the Court is Plaintiff’s Motion to Remand [Court Doc. 20]. For the reasons

explained below, Plaintiff’s Motion to Remand will be GRANTED.

I.

FACTS AND PROCEDURAL HISTORY

The facts, as recited below, are not in dispute.

Plaintiff is an osteopathic physician licensed to practice medicine in Tennessee.

(Court Doc. 1-2 (“Complaint”), ¶ 1.) Defendant Bledsoe County is a governmental

subdivision of the State of Tennessee which owns Bledsoe County Hospital, d/b/a Erlanger

Bledsoe Hospital (“Erlanger-Bledsoe”), which is a 25-bed acute care hospital located in

Pikeville, Tennessee. (Id. ¶ 3.) Defendant Chattanooga-Hamilton County Hospital

Authority, d/b/a Erlanger Health System (“Erlanger”), is a governmental hospital authority

located in Chattanooga, Tennessee. (Id. ¶ 2; Court Doc. 4 (“Answer”), ¶ 2.) Erlanger is

the lessee and operator of Erlanger-Bledsoe. (Answer ¶ 3.)

Plaintiff is board-certified in family medicine and has had medical staff privileges at

Erlanger-Bledsoe since 1994. (Id. ¶ 5.) On March 5, 2008, Plaintiff received a letter from

Dr. James W . Kennedy, notifying him that his medical staff privileges at Erlanger, including

his privileges to admit patients to Erlanger-Bledsoe, had been suspended. (Id. ¶ 6.) The

stated basis for this suspension was an audit of a number of Plaintiff’s patients’ charts.

(Id.; Complaint ¶ 6.) Dr. Kennedy’s letter relied upon certain provisions of the Erlanger

Staff Bylaws. (Complaint ¶ 7; Answer ¶ 7.)

On March 28, 2008, Plaintiff filed a complaint in the Chancery Court of Bledsoe

County claiming that the suspension of his medical privileges constituted a breach of

contract, procurement of breach of contract in violation of Tenn. Code § 46-50-109, tortious

interference with his contractual relationships, and interference with his prospective

business advantages. (Complaint ¶¶ 11-14.) Plaintiff requested injunctive relief to restore

his privileges, an award of damages, and attorney’s fees. (Id. at 4-5.)

Defendants removed the case to this Court on April 24, 2008. (Court Doc. 1.)

Plaintiff then filed a Motion for Preliminary Injunction and Issuance of Show Cause Order

and the Court set a hearing on Plaintiff’s motion for May 12, 2008. (Court Docs. 3,5.) At

the hearing on Plaintiff’s preliminary injunction motion, the Court sua sponte raised the

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issue of whether it has subject matter jurisdiction over this case. After hearing brief

argument from both parties, the Court recessed the hearing to afford the parties an

opportunity to file briefs on that issue. Plaintiff filed a Motion to Remand and a supporting

memorandum on May 13, 2008 [Court Docs. 20, 21] and Erlanger responded on May 15,

2008 [Court Doc. 22]. Defendant Bledsoe County represented to the Court at the hearing

that it has no position on whether this Court has subject matter jurisdiction over this action

and will defend in either forum.

II.

ANALYSIS

Federal courts are courts of limited jurisdiction. Walburn v. Lockheed Martin Corp.,

431 F.3d 966, 970 (6th Cir. 2005); Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003).

Accordingly, “it is presumed that a cause lies outside this limited jurisdiction, and the

burden of establishing the contrary rests upon the party asserting jurisdiction.” Hudson,

347 F.3d at 141.

Pursuant to 28 U.S.C. § 1441(a), a civil action brought in state court may be

removed to federal court if the federal court has original jurisdiction over the matter.

Federal courts have original jurisdiction over “all civil actions arising under the Constitution,

laws, or treatises of the United States.” 28 U.S.C. § 1331.

Defendants removed this case because they contend that it “require[s] the resolution

of a substantial question of federal law (i.e., whether a proper ‘professional review action’

was conducted by Defendant pursuant to the [Health Care Quality Improvement Act of

1986 (‘HCQIA’)]).” (Court Doc. 1 at 2.) Defendant argues that “[a]lthough not expressly
1

1
A s n o te d ab o ve , D e fe n d a n t B le d s o e C o u n t y h a s n o t ta k e n a p os it io n on th e is s u e o f
ju r is d ic t ion so the C ou r t ’s re fe ren c e to “D e fe nd an t” is in ten de d to inc lud e o n ly D e fe nd an t E r lan ge r .

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pled in Plaintiff’s complaint, a federal question is nonetheless both intrinsic and central to

Plaintiff’s causes of action.” (Id. at 4.)

A.

Well-Pleaded Complaint Rule

“To determine whether the claim arises under federal law, we examine the ‘well

pleaded’ allegations of the complaint and ignore potential defenses[.]” Beneficial Nat’l

Bank v. Anderson, 539 U.S. 1, 6 (2003). Even “a defense that relies on the preclusive

effect of a prior federal judgment or the pre-emptive effect of a federal statute will not

provide a basis for removal.” Id. (citations omitted).

It is undisputed that, Plaintiff has not raised, on the face of his complaint, a federal

question. Plaintiff’s claims are based solely on state law. See, e.g., Kadinger v. Wayne

Chemical, Inc., 56 F.3d 64 (6 Cir. 1995) (breach of contract is a state law claim).
th

Accordingly, Plaintiff’s complaint does not facially raise an issue of federal law that would

confer subject matter jurisdiction on the Court.

B.

Exceptions to the Well-Pleaded Complaint Rule

There are, however, limited exceptions to the “well-pleaded complaint” rule. One

exception is the artful-pleading doctrine, which states that a plaintiff may not “avoid removal

jurisdiction by artfully casting their essentially federal law claims as state-law claims.”

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2 (1981) (quotation marks,

citations, and edits omitted). A related exception is the complete-preemption doctrine,

which states that removal is proper “when a federal statute wholly displaces the state-law

cause of action through complete pre-emption.” Beneficial Nat’l Bank v. Anderson, 539

U.S. 1, 8 (2003). A third exception is the substantial-federal-question doctrine, which

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applies “where the vindication of a right under state law necessarily turn[s] on some

construction of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463

U.S. 1 (1983). Under these limited circumstances, a defendant may force a plaintiff into

federal court despite the plaintiff’s desire to proceed in state court.

Defendants argue that the Court has federal jurisdiction under the third exception –

the “substantial federal question” doctrine. (Court Doc. 22 at 6-7.) Under this exception,

a federal court can have jurisdiction over seemingly state law claims if “a state law claim

necessarily raises a stated federal issue, actually disputed and substantial, which a federal

forum may entertain without disturbing any congressionally approved balance of federal

and state judicial responsibilities.” Grable & Sons Metal Products, Inc. v. Darue

Engineering & Mfg., 545 U.S. 308, 314 (2005). “The mere presence of a federal issue in

a state law cause of action does not automatically confer federal question jurisdiction,

either originally or on removal. Such jurisdiction remains exceptional and federal courts

must determine its availability, issue by issue.” Mikulski v. Centerior Energy Corp., 501

F.3d 555, 565 (6 Cir. 2007) (en banc).
th

The “substantial federal question” doctrine has three components: (1) the state-law

claim must necessarily raise a disputed federal issue; (2) the federal interest in the issue

must be substantial; and (3) the exercise of jurisdiction must not disturb the congressionally

approved balance of federal and state judicial responsibilities. Mikulski, 501 F.3d at 568.

The Court will analyze the facts of the case at bar against each of these three components.

-5-

1.

Claims necessarily raise a disputed federal issue

Defendant argues that Plaintiff’s claims necessarily raise a disputed federal issue

because the Court will be required to determine “whether a proper ‘professional review

action’ was conducted by Defendant Erlanger pursuant to the HCQIA.” (Court Doc. 22 at
2

12.)

The HCQIA is a federal statutory scheme that was enacted in 1986 to address the

rising problem of medical malpractice and the ability of incompetent doctors to move

between states without having their prior practice records follow them. 42 U.S.C. § 11101.

It created a national registry which requires various entities to report on doctor’s medical

malpractice insurance coverage, investigations conducted by Boards of Medical

Examiners, and disciplinary actions taken by peer review committees. Id. at §§ 11131-

11134. It also sets standards for what constitutes an appropriate peer review action and

creates a presumptive immunity from monetary damages awarded against participants in

the peer review process. Id. at § 11111.

It is undisputed that the HCQIA will be involved in the ultimate determination of this

action. Defendant has raised the immunity provisions of the HCQIA as an affirmative

defense to its liability for monetary damages. (Court Doc. 4 at 3.)

It is a long-standing principle of federal jurisdiction that the presence of a federal

2
D e fe n d a n t d ire c ts the C o u r t to a s im ila r c a s e cu r re n t ly pe n d in g be fo re th is C o u r t , S t ra t ie n k o
v . C h a tta n o o g a -H am ilto n C o u n ty H o s p ita l A u th o r ity , e t a l., in w h ic h th e C o u r t re fu s e d to rem a n d th e c as e .
S t ra t ie n k o is d is t in g u is h a b le , h ow e ve r , b e c au s e in th a t c a s e , it w a s u nd is p u te d th a t th e c ou r t h a d o r ig in a l
ju r isd ic t io n o ve r a num b e r o f p la in t if f ’s c la im s . T h e is s u e the re w a s w h e the r the co u r t s h o u ld e x e rc is e its
s u p p lem e n ta l ju r is d ic t io n o ve r p la in t if f ’s s ta te law c la im s o n c e th e fe d e ra l c la im s w e re d ism is s e d . H e re , th e
C o u r t is de te rm in ing w h e th e r it ha s o r ig ina l ju r is d ic tio n o ve r th e ca s e , w h ic h is an en t ire ly se p a ra te inq u iry.
S e e E x x o n M o b il C o rp . v . A lla p a tta h S e rv s . , In c ., 5 4 5 U .S . 5 4 6 , 5 5 9 (2 0 0 5 ) (c o u r t m u s t f irs t d e te rm in e w h e th e r
it ha s o r ig in a l ju r isd ic t io n o ve r o ne o f th e c la im s in p la in t i f f ’s com p la in t be fo re the n de te rm in in g w h e the r to
in vo k e su p p lem e n ta l ju r isd ic t io n ) .

-6-

question in a defense does not confer subject matter jurisdiction on a federal court. Merrell

Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808 (1986) (“A defense that raises

a federal question is inadequate to confer federal jurisdiction.”) In fact, “a case may not

be removed to federal court on the basis of a federal defense . . . even if the defense is

anticipated in plaintiff’s complaint, and even if both parties admit that the defense is the

only question truly at issue in the case.” Franchise Tax Bd. V. Construction Laborers

Vacation Trust, 463 U.S. 1, 14 (1983). Moreover, a federal question is not necessarily

raised by a case “when the complaint on its face states alternate theories supporting a

state-law claim, at least one of which does not involve a federal question.” Long v. Bando

Mfg. of America, 201 F.3d 754, 760 (6th Cir. 2000).

Under these principles, whether the Court has jurisdiction over this case depends

on whether the HCQIA is necessary to prove an element of Plaintiff’s case or whether it

arises only in relation to Defendant’s affirmative defense. If the HCQIA arises only in the

context of Defendant’s affirmative defense, the Court is without subject matter jurisdiction.

If Plaintiff must invoke the HCQIA in order to establish an element of one of his causes of

action, the Court may have jurisdiction.

Plaintiff has brought a claim for breach of contract. (Complaint ¶ 11.) To prove

breach of contract, Plaintiff will be required to establish: “(1) the existence of an

enforceable contract, (2) nonperformance amounting to a breach of the contract, and (3)

damages caused by the breach of contract.” C&W Asset Acquisition, LLC v. Oggs, 230

S.W .3d 671, 677 (Tenn. Ct. App. 2007).

The HCQIA would likely arise, if at all, through Plaintiff’s efforts to show that

-7-

Defendant breached the contract. Plaintiff’s complaint states that his suspension occurred

after a “hurried audit of several of plaintiff’s patient’s charts.” (Complaint ¶ 6.) Plaintiff also

states that “the allegations contained in Dr. Kennedy’s letter [notifying him that his

privileges were suspended] are pretextual, in that Erlanger is displeased that Dr.

MacManus has not referred all of his patients to Erlanger for various treatments which

cannot be addressed adequately at Erlanger-Bledsoe.” (Id.)

The Medical Staff Bylaws are incorporated by reference into Plaintiff’s employment

contract. (Court Doc. 16-2 at 3.) Section Four of the Bylaws sets forth the appropriate
3

procedure for instituting and implementing “corrective actions,” including suspensions of

doctor’s privileges. (Court Doc. 16-3.) The Bylaws do not reference or purport to

incorporate the HCQIA or any other federal law.

If Plaintiff can establish that Defendant conducted a “hurried audit” that did not

comply with the Bylaws, he could arguably establish that Defendant had breached his

employment contract. Because the Bylaws set forth their own administrative procedure

for handling the suspension of a doctor’s privileges, it appears that Plaintiff can establish

all of the elements of his breach of contract claim without reference to the HCQIA.

Defendant alleges that a federal issue is necessarily raised by Plaintiff’s complaint

because “Plaintiff’s causes of action cannot be resolved without determining the

appropriateness of the professional review action taken by Defendant Erlanger resulting

in the suspension of Plaintiff’s privileges.” (Court Doc. 22 at 5.) The Court recognizes that

3
P la in t if f c la im s tha t he is no t su b jec t to the E r lan ge r S ta f f B ylaw s be c au s e n o o ne a t E r lan ge r –
B led s oe eve r vo ted fo r , ap p ro ved o r o the rw is e en do rse d the B ylaw s . (C om p la in t ¶ 7 . ) H ow eve r , th is ap pe a rs
to b e a n a lte rn a t ive a rg um e n t to P la in t if f ’s c la im th a t D e fe n d a n t ’s re a s o n fo r th e re vo c a t io n o f h is p r iv ile g e s
w a s p re te x u a l an d ba s e d on a hu r r ie d au d it o f p a t ie n t ’s ch a r ts .

-8-

Plaintiff might be able to prove a breach of contract by showing that Defendant had

conducted an improper peer review under the HCQIA. But a claim does not necessarily

involve federal law when a plaintiff can establish all of the elements of his cause of action

without reference to federal law. Long v. Bando Mfg. of America, 201 F.3d 754, 760 (6th

Cir. 2000). Because Plaintiff can prove his breach of contract claim by simply showing that

Defendant did not comply with the procedures outlined in the Bylaws, which would not

require any analysis of, or reference to, the HCQIA, it is irrelevant that Plaintiff might also

be able to establish a breach by showing that Defendant violated the HCQIA.

Plaintiff has also brought an inducement or procurement of a breach of contract

claim pursuant to Tenn. Code § 46-50-109. (Complaint ¶ 12.) The elements for a claim

of procurement of breach of contract are:

(1) there must be a legal contract; (2) the wrongdoer must
have knowledge of the existence of the contract; (3) there must
be an intention to induce its breach; (4) the wrongdoer must
have acted maliciously; (5) there must be a breach of the
contract; (6) the act complained of must be the proximate
cause of the breach of the contract; and (7) there must have
been damages resulting from the breach of the contract.

Myers v. Pickering Firm, 959 S.W .2d 152, 158 (Tenn. Ct. App. 1997). Similar to what was

discussed above, none of these elements necessarily involves the application or

interpretation of federal law.

Plaintiff has further brought claims for tortious interference with his contractual

relationship and interference his prospective business advantages. (Complaint ¶ 13 & 14.)

The elements for a claim of tortious interference with a business relationship are: “(1) the

existence of a business relationship or expectancy (not necessarily contractual); (2)

knowledge by the interferer of the relationship or expectancy; (3) an intentional act of

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interference; (4) proof that the interference caused the harm sustained; and (5) damage

to the plaintiff.” See Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W .3d 691, 699

(Tenn. 2002). The elements for interference with a business relationship are:

(1) an existing business relationship with specific third parties
or a prospective relationship with an identifiable class of third
persons; (2) the defendant’s knowledge of that relationship and
not a mere awareness of the plaintiff’s business dealings with
others in general; (3) the defendant’s intent to cause the
breach or termination of the business relationship; (4) the
defendant’s improper motive or improper means . . . and
finally, (5) damages resulting from the tortious interference.

Id. at 701. As with the claims above, for Plaintiff to prove the elements of both of these

causes of action, he need not refer to, or rely on, federal law.

Defendant claims that “[t]he Court cannot decide Plaintiff’s causes of action without

deciding Defendant Erlanger’s compliance with the HCQIA.” (Court Doc. 22 at 8.) But the

Court has set forth the necessary elements of each of Plaintiff’s claims and none requires

Plaintiff to show that Erlanger did not comply with the HCQIA to prevail on his claims.

Defendant also argues that the HCQIA’s presumption against damages must be

reed by Plaintiff as a necessary element of his claims. (Id. at 9.) However, with regard

to damages, all that Tennessee law requires is Plaintiff to show that he suffered damages

as a result of Defendant’s conduct.

Defendant further argues that “Plaintiff has the burden of proving that Defendant

Erlanger has not met the HCQIA’s standards before he can recover any damages pursuant

to his causes of action set forth in his Complaint.” (Court Doc. 22 at 5.) It is true that, to

recover monetary damages from Defendant, Plaintiff will have to overcome the reable

presumption that the peer review was conducted in accordance with the HCQIA. 42

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U.S.C. § 1112(a). Whether Plaintiff suffered damages, however, is an issue separate and

apart from whether he is entitled to recover damages. To prevail on his claims, as

discussed above, he must establish that he suffered damages as a result of Defendant’s

conduct. His ability to recover monetary damages depends on whether he can rebut the

presumption raised by Defendant’s affirmative defense.

If Plaintiff proves all of the elements of his claims but does not overcome HCQIA’s

immunity provisions, he may still be entitled to non-monetary relief. See Manion v. Evans,

986 F.2d 1036, 1042 (6th Cir. 1993) (holding that the plain language of the HCQIA

provides immunity only from damages, not from suit). The HCQIA provides that, if a

professional review action meets the Act’s standards, the peer review participants “shall

not be liable in damages.” 42 U.S.C. § 11111(a)(1) (emphasis added). It does not

preclude injunctive or declaratory relief. Manion, 986 F.2d at 1041. If Plaintiff can establish

all of the elements of his claims, he may be entitled to injunctive or declaratory relief,

regardless of whether he defeats Defendant’s HCQIA affirmative defense.

Defendant’s argument on this point appears to conflate Plaintiff’s prima facie case

with Plaintiff’s obligation to rebut Defendant’s affirmative defense. What Plaintiff may be

required to prove in order to recover monetary damages from Defendant is not part of his

prima facie case, but arises only as a response to Defendant’s assertion of the HCQIA’s

immunity provisions as an affirmative defense. Because Plaintiff is required to show only

that he suffered damages as a result of Defendant’s actions, which he can do without

reference to the HCQIA, he can establish all of the elements of his claim under state law.

In evaulating whether the Court has jurisdiction, it must consider only what Plaintif f is

-11-

required to prove to prevail on his claim, and must ignore potential defenses. Beneficial

Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003).

Defendant argues that whether a proper peer review was conducted is the central

issue in this case. (Court Doc. 22 at 5.) While that contention might be true, it is not

enough to confer federal jurisdiction. Quite simply, a federal court does not have

jurisdiction over a case when federal law is evoked by a defense, “even if the defense is

anticipated in plaintiff’s complaint, and even if both parties admit that the defense is the

only question truly at issue in the case.” Franchise Tax Bd., 463 U.S. at 14.

Federal courts addressing similar cases have found that there is no federal

jurisdiction and have, therefore, remanded to state court. See, e.g., Matthews v. Lancaster

General Hospital, 883 F. Supp. 1016 (E.D. Pa. 1995) (after granting summary judgment

on plaintiff’s federal antitrust claim, the court remanded plaintiff’s remaining breach of

contract, interference with contractual relations and civil conspiracy claims); Zamaniam v.

Christain Health Ministry, 1994 WL 396179 (E.D. La. July 22, 1994) (remanding plaintiff’s

claims, including breach of contract and tortious interference with contractual relations, for

lack of a federal question). In Shah v. Oalmetto Health Alliance, 2006 WL 3230755

(D.S.C. 2006), the plaintiff, a doctor who had been subject to disciplinary proceedings by

his employer, brought six state-law claims, including breach of contract and tortious

interference with contract. Plaintiff’s complaint alluded to the HCQIA in an attempt to rebut

the statute’s presumptive immunity for the defendants. Id. at *2. Plaintiff did not, however,

purport to assert a claim based on the HCQIA. The court held that the complaint did not

involve a federal claim and that the HCQIA would be relevant only as a potential defense.

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Id. at *3. The Court remanded the case to state court because there were “no federal

claims pled or implied in the Amended complaint.” Id. at *4.

In sum, the Court concludes that Plaintiff can prove all of the elements of his claims

without necessarily invoking federal law. Accordingly, this case fails the first part of the

substantial-federal-question doctrine – that the state-law claim necessarily raises a

disputed federal issue. Mikulski, 501 F.3d at 568.

2.

Substantial Federal Question

Even if the Court were convinced that Plaintiff’s claims necessarily raised a federal

issue, it would have jurisdiction over this case only if that federal question is “substantial.”

To have jurisdiction pursuant to § 1331 under the substantial federal question exception

to the well-pleaded complaint rule, the case must involve “not only a contested federal

issue, but a substantial one, indicating a serious federal interest in claiming the advantages

thought to be inherent in a federal forum.” Grable, 545 U.S. at 313. “A ‘substantial’ federal

question involves the interpretation of a federal statute that actually is in dispute in the

litigation and is so important that it ‘sensibly belongs in federal court.’” Eastman v. Marine

Mechanical Corp., 438 F.3d 544, 552 (6 Cir. 2006) (quoting Grable, 545 U.S. at 315)).
th

It is undisputed that the HCQIA does not provide a federal cause of action.

Defendant argues, correctly, that the lack of a federal cause of action does not bar the

exercise of federal jurisdiction. See Grable, 545 U.S. at 317 (federal cause of action not

a necessary requirement for invoking federal jurisdiction). The Sixth Circuit has stated that

the absence of a federal cause of action, while not dispositive of this issue, provides a

starting point for the analysis. “Congress’ withholding a private right of action . . . is an

-13-

important signal to its view of the substantiality of the federal question involved.” Eastman

v. Marine Mechanical Corp., 438 F.3d 544, 552 (6th Cir. 2006). “Merrell Dow thought it

improbable that the Congress, having made no provision for a federal cause of action,

would have meant to welcome any state-law tort case implicating federal law solely

because the violation of a federal statute is said to create a reable presumption of

negligence under state law. In this situation, no welcome mat meant keep out.” Grable,

545 U.S. at 319. In this case, HCQIA’s absence of a federal cause of action is a strong

indicator that Congress did not intend for the federal courts to have jurisdiction.

Defendant argues that “the meaning and application fo the HCQIA is an important

issue of federal law that sensibly belongs in federal court.” (Court Doc. 22 at 11.) In

adopting the HCQIA, Congress recognized that federal action was necessary to address

the increasing occurrence of medical malpractice, the need to improve medical care, and

to restrict the ability of incompetent physicians to move between states without disclosing

their disciplinary actions. 42 U.S.C. § 11101(1)-(2). Congress observed that these

problems could be remedied through “effective professional peer review” and noted that

the threat of monetary damages against peer review participants was hampering the peer

review process. Id. at 11101(3)-(4). Overall, Congress found an “overriding national need

to provide incentive and protection for physicians engaging in effective peer review.” Id.

at 11101(5).

While this expression of legislative intent shows that Congress felt there was a

substantial problem that needed to be addressed by federal action, it is also notable to

consider what Congress did not include in the statute. Congress did not legislate a

requirement that the peer review process be litigated in federal court. If anything, allowing

-14-

cases to be litigated in federal court purely because they might raise an issue under the

HCQIA seems to be contrary to the purpose of the statute. The HCQIA creates a

presumptive immunity for participants in the peer review process, 42 U.S.C. § 11111,

which would seem likely to diminish, or at least to discourage, litigation arising in this

context. “The intent of the HCQIA was not to disturb, but to reinforce, the preexisting

reluctance of courts to substitute their judgment on the merits for that of health care

professionals.” Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1337

(11th Cir. 1994).

While Congress recognized that the need to improve medical care was a nationwide

problem greater than that which any state legislature could tackle alone, it did not indicate

that the federal courts would be better equipped to handle cases involving the HCQIA than

state courts. A problem that requires federal legislative intervention does not necessarily

require the intervention of the federal courts. For obvious reasons, the federal government

is in a better position than the individual states to set up a national database for reporting

and tracking incompetent physicians. It is not a necessary corollary, however, that federal

courts must be involved in overseeing that process. As Justice Brennan wrote in his

concurrence in Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 68 (1987),

“the prudent course for a federal court that does not find a clear congressional intent to

create removal jurisdiction will be to remand the case to state court.” There is no clear

expression of congressional intent to create removal jurisdiction in the HCQIA. Wayne v.

Genesis Medical Ctr., 140 F.3d 1145, 1148 (8th Cir. 1998). The lack of such clear intent

to provide a federal forum is indicative of Congress’s views on the issue.

-15-

In Grable, the Supreme Court noted that the United States government “has a direct

interest in the availability of a federal forum to vindicate its own administrative action, and

buyers . . . may find it valuable to come before judges used to federal tax matters.” 545

U.S. at 315. The federal government does not have such a direct interest in this case.

This case does not involve the collection of federal taxes or any other expressly federal

function. There is an obvious distinction between the federal government’s substantial

interest in collecting taxes, which fund the operation of the federal government, and the

lack of a substantial interest in overseeing the physician peer review process. The Court

is not convinced that litigants, in cases involving doctor’s privileges and the peer review

process, would find it more valuable to have their case presided over by a federal judge

than a state court judge. If anything, state court judges are likely more familiar with the

medical administrative procedures and general medical legal issues, the state courts being

home to the vast majority of medical malpractice and other similar actions. See Daniel v.

Power, 2005 WL 1958376 (S.D. Ill. 2005) (medical malpractice is “a creature of state law”).

The Supreme Court has indicated that constitutional questions are more likely to

reach the level of substantiality necessary to invoke federal jurisdiction. Merrell Dow, 478

U.S. at 814 n.12. The federal law at issue in this case is a statute designed to encourage

peer review by immunizing its participants from monetary damages. See 42 U.S.C. §

11101. It does not involve federal constitutional matters or concerns. Plaintiff’s claims are

contractual and do not raise any constitutional considerations.

Accordingly, for all of the reasons discussed above, the Court finds that the federal

question invoked in this case, if any, is not sufficiently “substantial” to confer federal

jurisdiction.

-16-

3.

Balance of federal and state judicial responsibilities

Finally, a federal court should not assert jurisdiction over a case if doing so would

impermissibly disrupt the congressionally approved balance of federal and state judicial

responsibilities. See Grable, 545 U.S. at 315. The Court must “inquire into the risk of

upsetting the intended balance by opening the federal courts to an undesirable quantity of

litigation.” Id. This inquiry is necessarily speculative. Id.

While the Court doubts that allowing any doctor whose privileges have been

revoked to bring a case in federal court would cause a “flood of litigation” or “overwhelm

the federal courts,” the number of such cases is not insignificant. The fact that Congress

did not create a federal cause of action under the HCQIA is relevant here. The Supreme

Court has stated that “even if the actual number of cases prove not to be overwhelming,

or even uncomfortably burdensome, it appears unlikely that Congress – through its silence

– intended to open the federal court door quite so wide” as to allow federal jurisdiction

when no federal cause of action has been established. Id.

From a policy perspective, the Court is mindful that state courts are generally

presumed to be competent to interpret and apply federal law. See Zwickler v. Koota, 389

U.S. 241, 245, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) (“During most of the Nation’s first

century, Congress relied on the state courts to vindicate essential rights arising under the

Constitution and federal laws.”). Plaintiff’s claims are traditional state-law actions and the

Court has no doubt that Tennessee state courts are fully competent to interpret the

provisions of the HCQIA that may arise during the resolution of this action.

Overall, a review of the case law on the “substantial federal question” doctrine

-17-

shows that there are far more examples of when and why not to allow removal on this

basis than there are showing when and why to allow removal. See Little v. Perdue

Pharma, L.P., 227 F. Supp. 2d 838, 857 (S.D. Ohio 2002) (comprehensively reviewing

Supreme Court case law on the substantial federal question doctrine). The Sixth Circuit

has expressly stated that federal jurisdiction under the “substantial federal question”

doctrine “remains exceptional and federal courts must determine its availability, issue by

issue.” Mikulski v. Centerior Energy Corp., 501 F.3d 555, 565 (6 Cir. 2007) (en banc).
th

Combining the general presumption that a cause of action lies outside of the federal courts

jurisdiction, see Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003), with the fact that

federal jurisdiction should be invoked via the “substantial federal question” doctrine only

under “exceptional” circumstances, the Court concludes that remand is warranted.

III.

CONCLUSION

For the reasons discussed above, Plaintiff’s Motion to Remand [Court Doc. 20] is

GRANTED and this case is remanded to the Chancery Court of Bledsoe County,

Tennessee.

A separate Order will enter.

SO ORDERED this 19th day of May, 2008.

/s/Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

-18-

Magyar v. Saint Joseph Reg’l Med. Ctr. – Full Text

In th e
Un ited S tates Court o f Appea ls
F o r th e S ev en th C ircu it

No . 07-2197

JESSICA MAGYAR,

P la in ti f f-Appel lan t,

v .

SAINT JOSEPH REGIONAL M EDICAL CENTER,

D efendant-A pp ellee .

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:05-CV-0452—Robert L. Miller, Jr., Chief Judge.

ARGUED NOVEMBER 7 , 2007—D EC IDED SEPTEMBER 12 , 2008

Be fore POSNER, WOOD , and W ILLIAMS, C ircu it Judges .
WOOD , C ircu it Judge . Jessica M agyar (to whom we refer
in th is op in ion us ing her form er last nam e o f H ous ton ) los t
her job a t Sa in t Joseph Reg iona l M ed ical Cen te r (“ the
Hosp ita l” ) a fter she comp lained abou t perceived sexua l
haras sm en t . She sued th e Hosp ita l on th e theo ry th a t it
had v io la ted the an ti-re ta lia t ion prov is ion of T it le V II of
the C iv il R igh ts Ac t of 1964 , 42 U .S .C . § 2000e-3 (a ). Rea son –
ing tha t the evidence Hous ton subm it ted in response to

2

No . 07-2197

the Hosp ita l’s summ ary judgmen t m o t ion cou ld no t
support a find ing of causat ion , or in the a ltern a t ive
cou ld no t show tha t th e H osp ita l’s sta ted m o t ive for
term ina t ing her was pre tex tua l, the d is tric t cour t gran ted
summ a ry judgm en t to the H osp ita l . If we w ere the u lti-
m a t e tr ier of fac t , we wou ld f ind th is to be a c lose case .
W e are no t , how ev e r , and we conc lud e tha t the record
view ed in the ligh t m os t favo rab le to H ou ston wou ld
pe rm it her to p reva il . W e the re fo re reve rse and remand
for fur ther proceed ings .

I
W h ile at tend ing college , Hous ton took a p os i t ion on
Ap r il 19 , 2004 , as a pa rt -t im e a ss is tan t schedu le r in the
Hosp i ta l ’s surg ica l depar tmen t . She was c lassified as a
PRN emp loyee , w h ich m eans tha t her work hours de –
pend ed on the needs o f the Hosp ita l; she d id no t need to
con form to regu lar hours , d id no t rece ive bene fits , and was
no t requ ired to accep t work hou rs when offered . Th e
equ iva len t of a fu l l-t im e surgery schedu ler pos it ion was
covered by three peop le : one regu lar par t-t im e emp loyee
(Ca rm en Sanchez) who wo rked ha lf-t im e , and two PRN
emp loyees (Hous ton and M ik isha W i l l iam s , a lso a
college s tuden t) who toge ther took up the o the r ha lf of the
hours .
One day , Da le Car l , a 52 -year-o ld m ale co-w orker , cam e
in to a crow d ed H osp ita l lounge where there were no free
cha irs . P lopp ing down on 22 -year-o ld H ou s ton ’s lap , he
wh ispered “You ’re pre t ty” in to her ear. Hous ton w as no t
am used . Th is happen ed som e t im e betw een her Ap ril

No . 07-2197

3

h ir ing da te and la te Ju ly or early Augus t . Tha t was no t
the first ins tance o f Car l’s m isbehavior . Hous ton test ified
a t he r depos i t ion tha t app rox im a te ly one w eek before
tha t inc iden t , Car l had a lso sa t on h er lap and wh ispered
a comm en t abou t her appearance . She exp la ined tha t
“ I wa s hop ing it wa s ju s t a one-t im e occu rren ce , and
I d idn ’ t— I d idn ’t really— tha t wa s m y firs t real job and
I rea lly d idn ’t know wha t to do . And I had to check to see ,
you know , like wha t are the exact s tanda rd s in the
wo rk fo rce . And then I knew once he d id tha t the
second t im e tha t I had to talk to her because it was no t a
one -t im e occu rrence .” W hen Car l repea ted the sam e
m ove , Hou ston conc luded tha t it wa s tim e to take act ion .
A round the first week o f Augus t , Hous ton repor ted
the second inc iden t to Pam Godda rd , her bos s . Du ring
th is m ee ting , G oddard expressed re luc tance to speak to
Car l abou t the inc iden t if Hou ston was unw illing to file
a form a l comp lain t . In response , Hous ton revea led tha t
she had been a v ic tim of sexua l as sau l t in the pas t and
therefore she w as sen s i t ive to su ch behav ior . Goddard
agreed to speak to Car l and apparen t ly d id so la ter tha t
day . A lthough the d issen t asserts tha t Car l “apo log ized
p ro fu s e ly ,” no th ing in th e record show s that he eve r
said a wo rd to Hou s ton o r that she even hea rd tha t he
had apo log ized to Godd ard . The reason is because
Godd ard ac tua l ly told h im no t to apo log ize to Hous ton
when he asked whe ther he shou ld do so .
The d is sent con tend s tha t G odda rd dea lt w i th the
sexua l harassm en t comp lain t e ffec t ive ly , as no fur ther
inc iden ts took p lace . Bu t tha t is on ly ha lf the s tory ; from

4

No . 07-2197

Hous ton ’s perspec t ive , there was no ev idence tha t any –
th ing (effec t ive or o therw ise) had happened . Godd a rd
took no s teps wha tsoev er to commun icate w ith Hous ton
regard ing any resolu t ion of her com p la in t , and so a trier
o f fact cou ld in fe r tha t Hou s ton (e specia lly g iven the
earlier inc iden t o f sexua l assau lt ) was le ft in fear tha t a t
any mom en t the re m igh t be a th ird in c iden t . Goddard
d oes no t even a llege tha t she fo llow ed up w ith H ous t on ;
her depos it ion tes tim ony revea ls tha t she s imp ly assum ed
tha t the m a t ter had been pu t to res t : “I ta lked to M r . Ca r l
tha t a fternoon regard ing M s . [Hous ton ] ’s comp lain t .
I hea rd noth ing mo re from M s . [Hou s ton ] rega rd ing
M r . Car l and be lieved the issue had been resolved to
M s . [Hou ston ]’s sa tis fac tion , as I had spoken to M r . C ar l ,
as M s . [H ou s ton ] reques ted , and no fur ther inc iden ts
had occu rred .”
Hou s ton had eve ry reason to wonde r whe ther any
act ion had b een taken at a ll ; she p robab ly at tr ibu ted the
lack of fu rther inc iden ts to her own at temp ts to avoid Car l .
W hen asked in he r depos it ion whethe r Car l d id anyth ing
tha t Hous ton cons id ered harass ing in na ture a fter Hous –
ton ’s conversa tion w i th Godd ard , Hous ton test ified as
fo llow s : “No . Bu t I a lso tried to s tay as much away
from any con tact w i th h im . You know , I t ried to avoid any
o f the conversa t ions tha t I— you know , I tr ied to keep
any th ing I had w ith h im sho rt .” A l though the d is sent
a ssert s tha t Hou s ton sen t an em a il to Godda rd after the
m eet ing to exp re ss sat is fact ion w ith Godda rd ’s hand ling
o f the comp lain t (“ the sm iley -face em a il” ), th is em a il was
sen t on Ju ly 16 , weeks before the m ee t ing in ques tion ,
and d id no t per tain to the Car l inc iden t .

No . 07-2197

5

There fore , on Sep tember 17 , h av ing rece ived no fo llow –
up in form a tion from Goddard abou t the re so lu t ion o f the
inc iden t , Hous ton com p la ined abou t Goddard ’s fa i lure
to respond to her comp lain t to the Hosp i t a l ’s General
Counse l and Organ iza t iona l In tegr i ty Off icer , Rober t
W ade . Som e tim e du r ing the fo llow ing week , W ade con –
ta c ted Hum an Resources (“HR” ) , and HR ins truc ted
Godd ard to m ee t w i th Hous ton aga in . On Sep t ember 24 ,
Hou s ton and Godda rd m e t tw ice ; at som e p o in t , the
d iscu ss ion tu rned from the inc iden t w i th C a r l to the
ques t ion why Hous ton fe lt the need to approach W ade .
The nex t day , Goddard em a iled W ad e to repor t tha t
Hou ston ’s issu es “a re resolved .”
Godd ard w as m is taken . On Sep tem ber 26 (n ine days
a fter her first con tac t w i th W ade ) , Hous ton sen t W ade a
form al let te r add ressed “To W hom It M ay Con cern ,”
comp lain ing abou t the manner in wh ich Godd ard had
hand led her in it ia l comp lain t and the new fac t tha t Hous –
ton ’s “ job had been pos ted on the job lis tings” w ithou t
not ify ing her , in appa rent “ re ta lia tion fo r m e tu rn ing
her [Godd a rd ] in .” Hous ton ’s affidav it and her Sep tem –
ber 26 le t ter bo th ind ica te that sh e con sid ered it inap –
p ropr ia te tha t she had to revea l her traum a t ic pas t in
order to prod Goddard in to ac t ion . On O c tober 7 ,
Godd ard subm it ted to HR a job requ is it ion form to res truc –
ture th e posit ion covered by PRN emp loyees Hous ton
and W illiam s in to a sing le regu lar h a lf-t im e posit ion
w ith bene fits . The d issen t de fends Godd ard ’s dec is ion to
expend budge t fund s on the paym en t of benefits by
assum ing that , if Goddard d id no t use these fund s , they
wou ld d isappear in the nex t budge t cyc le . There is no
support in th e record for th is fac tual assump t ion (w h ich

6

No . 07-2197

in te rp re ts the record in the ligh t m o s t favorable to the
de fendan t Hosp ita l) , nor for assum ing tha t th is fa c t ,
even if true , mo t ivated Godda rd ’s decis ion .
In an y ev en t , Hous ton was unab le to b id for the new
pos it ion becau se it con flic ted w ith h er c lass sch edu le . On
Oc tober 20 , the Hosp i ta l gave the
job , wh ich now
inc lud ed bene fits , to W illiam s , who was the on ly person
to b id for it since she had d ropp ed ou t o f co llege and freed
up her schedu le . Two days la ter , Goddard to ld H ous ton
tha t she rema ined c la ss ified a s a PRN and tha t she
wou ld be ca lled if sh e was need ed .
Godd ard ’s s tatem en t turned ou t to be on ly ha lf true .
Sho r t ly a f t er she to ld H ous ton tha t she w as st ill a PRN ,
Goddard to ld W illiam s and Sanchez to let her know if
they needed som eone to cover for them , ra ther than
ca lling Hous ton . The Hosp ita l asserts tha t the reason for
th is
ins truc t ion w as Godd ard ’s bus iness po l icy of
cover ing sh ifts w ith regu lar em p loyee s when ever it is
poss ib le to do so w i th ou t pay ing overt im e , ra ther than
us ing PRN s . Be tw een Oc tober 22 , 2004 , and Apr il 26 , 2005 ,
Hou s ton was not ca lled in to work a t the H osp ita l a
s ing le t im e . On Ap r il 26 , 2005 , she received not ice tha t she
had been form a l ly term ina ted becau se she d id no t work
enough hou rs a s a PRN emp loyee du ring the re levan t
pe riod ; on the Term ina t ion Form subm it ted to HR e ffect ing
th is ac tion , Godda rd m a rked “no” in the box asking
whe ther the emp loyee was e lig ib le for reh ire .
Be liev ing that the Hosp ita l had reta lia ted aga ins t her
for com p la in ing abou t Car l’s harassm en t and for com –
p lain ing abou t its fa ilure adequa te ly to add re ss tha t
hara ssmen t , Hou ston filed th is su it under T it le V II. The

No . 07-2197

7

d ist ric t cou rt gran ted summ ary judgm en t to the H osp ita l ,
find ing tha t H ous ton had fa iled to estab lish a pr ima fac ie
case of re ta lia tion , and tha t she fa iled to show that the
Hosp i ta l ’s asser t ion tha t it was p lann ing to res truc tu re
her job was p re tex tual .

II
Be fore tu rn ing to H ous ton ’s argum en ts on appea l , w e
shou ld add ress a procedura l po in t tha t the Hosp ita l has
ra ised in support of it s judgm ent . In the d is tr ic t cou rt , the
Hosp ita l moved to strike H ou ston ’s a ffidav it becau se it
w as uns igned , bear ing ins tead so le ly an “e lec tron ic s igna –
ture .” The d is tric t cour t den ied the m o t ion because Hous –
ton subm it ted ano ther affidav it on wh ich her ac tua l
s ignatu re was add ed n ea r th e e lec tron ic s ignatu re . On
appea l , the Hosp i ta l asks th is cou r t to d isregard Hous ton ’s
a ffidav it and thus to eva lua te Hous ton ’s response to its
summ a ry judgm ent w i thou t tha t in form a tion .
A d is t r ic t cour t ’s ru l ing on a mo t ion to s trike an
affid av it is review ed for an abuse o f d isc re tion . M anno ia v .
Farrow , 476 F .3d 453 , 456 (7 th C ir . 2007) . The Hosp ita l
w as no t pre jud iced by the in it ia l de fec t in the a ff id av i t
( to the ex ten t tha t i t w as a defec t a t a l l in a wor ld whe re
elec tron ic s ign a tu res are regu lar ly honored , see , e .g . ,
E lec tron ic Signa tures in G loba l and N a t iona l Comm erce
A c t , 15 U .S .C . § 7001 (requ iring recogn ition of elec tron ic
s igna ture s) , Un iform E lect ron ic T ran sact ion s Ac t , and
Ind iana E lec tron ic D ig ita l S ignatu re A c t , Bu rn s Ind . Cod e
Ann . § 5-24-3 -1) . In any even t , Hou ston imm ed iately
sub st itu ted a copy w i th a t rad it iona l s igna ture . The

8

No . 07-2197

d is tr ic t cou rt d id not abu se it s d iscre tion in deny ing
H osp ita l’s m o t ion to s tr ike . H ous ton ’s a ffidav it is thu s
properly part of the record be fore us .

III
The on ly issue rem a in ing in th is app ea l is whe ther
the d is tric t cour t erred in gran t ing summ ary judgm en t for
the Hosp i ta l . W e review a gran t of summ a ry judgm ent
de novo . Sound o f M usic C o . v . 3M , 477 F .3d 910 , 914 (7 th
C ir . 2007) .
A c la im of re talia t ion under T it le V II m ay be es tab lished
under e i ther the d irec t m e thod or the ind irec t bur-
den-sh ift ing me thod , wh ich is an adap ta tion of the
fam i lia r framewo rk se t forth in M cDonnel l D oug las Corp . v .
G reen , 411 U .S. 792 (1973) . See St one v . C ity o f Ind ianap o l is
Pu b . U ti ls . D iv ., 281 F .3d 640 , 644 (7 th C ir . 2002 ). Hous ton
has decided to re ly on the d irect m e thod of p roof . To
es tab lish a prim a facie case th is way , she mu s t “p re sent
d irec t ev idence o f a s tatu torily p ro tec ted ac t iv ity , an
adverse emp loym en t ac t ion , and a causa l connec t ion
be tw een th e two .” H ayw ood v . Lucent Techs ., Inc ., 323 F .3d
524 , 531 (7 th C ir . 2003 ). W e con s ide r each e lemen t in tu rn .

A . Statutorily p rotected activity
The Ho sp ital a rgues tha t Hou ston wa s not engaging
in s tatu torily pro tec ted act iv ity because , even by
H ou ston ’s a llega t ion s , th e re ta lia t ion was a respon se to
h e r app roach ing W ade to comp la in abou t Goddard ’s
com p la in t -m anagem en t sk ills (“ in re ta lia t ion for m e

No . 07-2197

9

turn ing her in” ) , no t her ear lier app roach to Goddard to
comp lain abou t Car l’s alleged sexua l harassm en t .
The d istric t cou r t imp l ic it ly re jec ted th is argum en t ,
s tat ing that “[e ]ven though the Hosp ita l is correc t tha t M s .
Hous ton ’s com p la in t to M r . W ade abou t M s . Goddard
can ’t be seen a s a comp la in t abou t sexua l ha ra ssmen t
or d iscr im inat ion , M s . Hou ston ’s comp la in t abou t inap –
p rop ria te touch ing by M r . Car l clear ly fa lls w ith in
T i tle V II protec tion .” In support o f her pos it ion , Hous ton
c ites the d is tr ic t cou rt ’s decis ion in John son v . Coun ty o f
N assau , 480 F . Supp . 2d 581 , 602 (E .D .N .Y . 2 007 ) . The
court there found tha t the p la in t i f f , who w as D irec tor o f
the O f fice o f D iversity , had stepped ou ts ide h is job du t ies
and therefo re engaged in p ro tec ted ac tiv ity , becau se in
add it ion to rais ing emp loyee comp lain ts of d iscrim ina –
t ion “he comp la ined tha t De fendan t s we re not fu lfilling
the ir du t ie s under T it le V II in p rope rly inve st iga ting
these comp lain ts .” Wh ile tha t case is obv ious ly not
b ind ing on th is cour t and the fac ts are som ewha t d ifferen t ,
w e find it persuas ive . Tak ing the fac ts in the ligh t mos t
favorab le to Hous ton , as we mus t at th is stage , the com –
p la in t to Goddard w ith th e fo llow -up com p la in t to Wade
m ade up one con t inuous comp lain t proce ss to wh ich
Hous ton resorted . In e ffec t , she w as ask in g W ade to
ensure tha t the ins t itu t ion do som e th ing abou t sexua l
ha rassm en t ; there i s no t a h in t tha t she had ano the r ,
unre la ted , gr ievan ce abou t Goddard .1

1
W e no te in th is conne ct ion tha t th e p ro cedu re s fo r add re ss ing
sexu a l ha rassm en t p lay a cr i t ica l ro le in th is area o f the law .
(con t inued . . .)

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No . 07-2197

W e no te tha t , to succeed on a re ta lia t ion c la im ,
Hou s ton need not p rove tha t the under ly ing cond uc t she
pe rceived as sexua l hara ssmen t a c tua lly wa s se riou s
enough to con st itu te a T it le V I I v iola tion . In stead , she
need on ly show that , when in st itu t ing her gr ievanc e , she
had a “s in cere and rea sonab le be lie f” that sh e was op –
pos ing an un law fu l prac tice . H amner v . St . V incent H osp . &
H ea lth Care C tr., Inc ., 224 F .3d 701 , 706-07 (7 th C ir . 2000) .
The ob jec t ive reasonab leness o f the be lie f is n o t assessed
by exam in ing wh e ther the conduc t was pers is ten t or
seve re enough to be un law fu l , bu t m erely whether it falls
in to the ca tegory of conduc t proh ib ited by the s tatu te .
Con trast id . (ho ld ing tha t gr ievance abou t ha ra ssmen t
engende red by “hom ophob ia” w a s not ob ject ively reason –
ab le and thus cou ld no t form th e bas is of a reta lia t ion
c la im , because “ [s ]exua l or ien ta tion is not a c lassifica t ion
tha t is pro te c ted under T it le V II” ). T it le V II does protec t
emp loyees from d iscr im ina t ion on the ba sis of sex , and

1
( . . .con t inued )
Ind e ed , in F aragher v . C ity o f B o ca R a ton , 524 U .S . 775 (1998 ) , and
Bu r ling ton Indu s . , In c . v . E l le rth , 524 U .S . 742 (1998 ) , the Sup rem e
Cou r t re cogn iz ed a p rocedu ra l a ffirm a t iv e d e fense fo r em p loy –
e rs , wh en harassm en t by a sup e rv iso r d o e s no t re su l t in a
tang ib le em p loym en t ac t ion . I f the em p lo y e r has exe rc ised
rea son ab le care to p rev en t and corr ec t ha rassm en t (typ ica l ly
th rough an e ffec tive an t i -ha rassm en t po l icy fo r the wo rkp lace )
and th e em p loy ee ha s un reasonab ly fa iled to ava i l h er se lf o f
tha t po l icy , then the em p loye r w i ll p reva i l . See F aragh er , 524 U .S .
a t 807 -08 ; E l le rth , 524 U .S . a t 764 -6 5 . An em p loy ee in th e m id s t
o f com p la in ing abou t und er ly ing ha rassm en t m ay w e l l w ish
to cr it ic ize the com pany ’s p rocedu res a t the sam e t im e .

No . 07-2197

11

sexua l harassm en t is a rec ogn ized spec ies o f such d is –
cr im ina t ion . 29 C .F .R . § 1604 .11 .
In th is cas e , the record su ffic ien t ly demons trates tha t
Hou ston sub jec tively felt that sh e had been sexu ally
harassed . In add i t ion , the lap inc iden ts involved ac tua l
touch ing . Th is cour t has often r ecogn ized in the pas t
tha t unw an ted phys ica l con ta c t fa lls on the m ore severe
sid e fo r p u rposes of sexual haras sm en t . A s w e noted in
P a tton v . Key ston e RV Co . , 455 F .3d 812 (7 th C ir . 2006) :
Ou r preceden t provides som e gu idance on how to
eva lua te the sever ity o f harassm en t :
On one s ide lie sexua l assau l ts ; other phys ica l
con tac t , wh e ther amorous or hos t i le , for wh ich
there is no consen t express or imp l ied ; un inv i t ed
sexua l solic ita tions ; in t im ida t ing words or ac ts;
obscene language or gestures ; pornograph ic p ic –
tures . On the other s ide lies the occas iona l vu lgar
ban ter, t inged w ith sexua l innuendo , of coarse or
boorish worke rs . . . .
455 F .3d a t 816 , c it ing Baskerv il le v . Cu ll igan In t’ l Co ., 50
F .3d 428 , 430 (7 th C ir . 1995 ) . See also , e .g . , W orth v . Tyer ,
276 F .3d 249 , 268 (7 th C ir . 2001 ) (“The fac t tha t conduc t
that invo lves tou ch ing as opposed to verba l behav io r
increases the sever ity of the s ituat ion .”) ; H ostet ler v . Qua l ity
D ining , Inc . , 218 F .3d 798 , 806 (7 th C ir . 20 00 ) . H av ing a
m an o ld enough to be her fa ther p lop in to he r lap and pu t
h is lip s to her ea r to wh isper “you ’re beau t ifu l” is the
type o f occu rrence tha t , if it happened often enough ,
cou ld con st itu te sexua l hara ssmen t , and so Hou ston ’ s
grievance was ob jec t ive ly reasonab le .

12

No . 07-2197

V iew ing the evidence in th e l igh t mos t favorab le to
Hou s ton , we conc lude tha t she has shown tha t she
engaged in a statu tor i ly p rotec ted act iv ity when she
comp la in ed up th e chain of comm and .

B . Adverse emp loym en t ac tion
The par t ies do no t d ispu te tha t H ou s ton su ffered an
adverse em p loym en t ac t ion . Whe ther we look to her
in it ia l loss of work around O c tober 20 , 2004 , wh en her
PRN po sit ion d isappeared and W illiam s rece ived the
n ew part -t im e job , or w e focu s on h er even tual ou t-and –
ou t term inat ion on Ap r il 26 (w ith th e add ed in su lt st ip –
u lat ing that she was no t e lig ib le for reh ire) , her case
easily sa t is fies th is elem en t .

C . Causa l conn ec tion
The las t e lem en t Hous ton mus t es tab lish is a causal
connec tion be tween he r statu to r ily p ro tec ted act iv ity and
the adverse emp loym en t ac t ion . Susp ic ious t im ing , to –
ge th er w ith other fac ts , can som e t im es raise an in ference
of a cau sa l connec tion . La lvan i v . Cook C ounty , 269 F .3d
785 , 790 (7 th C ir . 2001) ; Pa luck v . Good ing Rubber Co ., 221
F .3d 1003 , 1009-10 (7th C ir . 2000) . Hou ston and the H osp i-
ta l argue over wh e ther the w indow o f t im e in th is case
wa s narrow enough to be susp ic iou s . W e can measure the
t im e in seve ra l ways . The way mo s t favorable to the
H osp ita l wou ld be from Hous ton ’s ear ly Augus t com –
p lain t to Goddard to her term ina t ion le t ter a lm os t ten
m on th s la te r . The w ay m os t favo rab le to H ou ston wou ld

No . 07-2197

13

be from her renewed comp lain t to W ade on Sep tember 26
(w h en Goddard rea lized that Hou ston was not go ing to
le t the sub jec t drop ) to the day wh en G od d ard sub –
m i t ted the res tru c tu r ing reques t to HR , on O c tober 7— a
m ere n ine days . Or on e m igh t look at Hous ton ’s first
comp lain t to W ade on Sep tem ber 17 as the s tar ting –
po in t and her d ism issal from her ex is t ing PRN job on
Oc tober 20 , approx im a tely a mon th la ter , as the end -po in t .
Th is court has found a mon th shor t enough to re in force
an in ference of re talia t ion . See Lang v . Ill . D ep’t o f Children
& F am i ly S ervs . , 361 F .3d 416 , 419 (7 th C ir . 2004 ) (adverse
emp loym en t ac t ions began “ the sam e m on th” p la in t iff
f iled the rac ia l d iscr im ina t ion gr ievan ce w i th h is un ion) .
A lthou gh the lap inc iden ts took p lace in early Augus t
(and perhap s a b it ear lier) , w e th ink tha t the ap –
p roach mo st favo rab le to Hou ston is to as sum e tha t the
susp ic ious -t im ing c lock was res tar ted on Sep tem ber 17 ,
becau se tha t is when Hou s ton comp la ined to W ade , the
Gen eral Counse l and Integ rity O ffice r . From that po in t , it
is at mos t n ine days b e fo re the first sign of an adverse
emp loym en t ac t ion , because by the Sep tember 26 le t ter
Hous ton a lready knew tha t her job h ad been pos ted on
th e job lis t ings . Th e fac t that fu ll ex ecu tion of th e adver se
ac tion took a wh ile longe r for bu reau cra tic rea sons is
imm a ter ia l . On ce the whee ls were in mo t ion , Goddard
subm it ted the requ is it ion form on October 7 , filled the
pos it ion on Oc tober 20 , den ied Hous ton w ork hours ,
w aited seve ra l mon th s , and then term inated her in Ap ril
for work ing insu f fic ien t hours (a flaw tha t Goddard w as
ab le to eng ineer herse lf) .

14

No . 07-2197

The Ho sp ital at temp t s to m in im ize the causal link
be tw een Hous ton ’s comp la in t to W ade and Goddard ’s
a lleged ly re ta lia tory re st ruc tu r ing of the job by po in t ing
ou t tha t Godd ard “exp l ic it ly s ta ted (in a secre t ly -tape –
recorded conversa tion ) tha t she h ad no prob lem w i th
‘anyone t ak ing any th ing to the Lega l Depar tm en t .’” First
o f a ll , no trier o f fac t wou ld be compe lled to be lieve
Goddard ’s protestat ion of open -m indedness . Second , wh ile
Goddard d id
li tera l ly u t ter these word s , they are
sandw iched be tween o th er words ; taken as a who le ,
a ra t iona l jury cou ld in terpre t the conversa tion in Hous –
ton ’s favor . He re is the fu ll quotat ion :
I have no p rob lem w i th anyone taking anyth ing to the
lega l depa rtmen t bu t I am ju s t cu riou s when the
s itua t ion was dea lt w i th I though t it was dea lt w i th
very effec t ive ly it was a pos it ive ou t com e . You got
wha t you asked fo r . A nd yet you s till because you
don ’t th ink I sa id the r igh t w ord s or I ph ra sed the r igh t
sen tence wha t w as your expec ta t ion o f wha t you
w an ted to see happen a fter tak ing it to the hosp ita l (? )
depar tm en t .
(Hosp ital Supp . App . 36 ) (impe rfect ion s in transcr ip t of the
tape -recorded conve rsat ion ). A rea sonab le ju ry cou ld find
Godd ard ’s s tatem en ts defensive and accusatory. She com es
across as hav ing a sub s tan t ia l p rob lem w i th Hous ton ’s
dec is ion to take the m a t ter to the legal depar tmen t , desp ite
her per func tory sta tem en t to the con trary . Th is , toge ther
w ith tes t im ony from Hous ton tha t Godd ard ’s tone w i th
her w as de fens ive and irrita ted , Goddard ’s own adm iss ion
tha t she fe lt “ shocked” and “bew i lde red” when she

No . 07-2197

15

learned tha t Hous ton had c om p la ined abou t Goddard ’s
hand ling of the comp la in t , and the fact tha t Godd a rd
pos ted H ous ton ’s job on the job lis t ings w i th in a few days
of th is m ee ting , is m ore than m ere susp ic iou s t im ing . It is
suffic ient to ra ise an in fe rence of causat ion .

D . Bu t-for Causa tion
Even i f a ll that is true , the H osp ita l argues , it is st ill
en tit led to summ ary judgm en t on the bas is of what it ca lls
unrebu t ted ev idence tha t Goddard a lready in tended to
e lim ina te Hou ston ’s job for a legit im a te bu sines s reason .
Compare S tone, 281 F .3d a t 644 (ho ld ing tha t summ ary
judgm en t in favor of de fendan t is requ ired when de fen –
dan t p resen ts “unrebu tted ev id en ce that he wou ld have
taken the adverse emp loym ent act ion aga in s t the p la in –
t iff even if he had had no re ta l ia tory mo t ive”) .
Th rough Godd ard ’s depos it ion , the Hosp ita l presen ted
ev idence tha t , upon taking the job o f D irec tor o f Surg ica l
Serv ices in June 2004 , Goddard learned tha t two PRN s
(Hou s ton and W illiam s ) we re do ing the job of one
regu lar part -t im e emp loyee . Goddard tes t ified tha t sh e
regarded th is as an und es irab le bus iness prac tice , because
the budge t a llowed for a par t -t im e posit ion w i th bene fits ,
so it shou ld be f illed in tha t w ay . (The po in t abou t benefits
w as an odd one , g iven the fac t th a t benefits impose sub –
s tan t ia l cos ts on emp loye rs . An Augu st 2005 s tudy pe r –
form ed for the Sm a ll Bus iness A dm in is tra t ion reported
tha t abou t 29% of a bus iness ’s to ta l compensa t ion cos ts
for hour ly emp loyees is at tribu tab le to bene fits . See “Cos t
o f Emp loyee Bene fits in Sm a ll and L arge Bu s inesses ,” at 6 ,

16

No . 07-2197

a t www .sba .gov/advo /research /rs262 to t .pd f (las t v is ited
7/19 /08) . It is unc lea r why Goddard though t that it wou ld
be be t ter if h er emp loyer shou ldered tha t burden .) A lso ,
sh e said , a regu lar em p loyee wou ld have p red ictab le
and re liab le hou rs comm itm en ts (though there is n o
ev iden ce that Hou ston and W illiam s w ere eve r unavail-
ab le when the H osp ita l need ed them .)
It is t rue tha t Hou s ton re sponded on ly by comm ent ing
tha t Godd ard ’s s tatem en ts were se lf-serv ing , bu t th is was
jus t ano ther w ay o f saying tha t a trier o f fac t w ou ld have
to eva lua te everyth ing Goddard sa id and d ec ide wha t
to accep t and wha t to re ject . Even w ithou t d irect rebu t t ing
ev idence from Hous ton , the Hosp i tal’s ev idence fa ils to
e stab lish tha t Hou s ton firs t wou ld have los t her PRN
pos it ion and then wou ld have been e ffec t ive ly black lis ted
for a ll s im ilar work un t il her term ina t ion in the absence
o f th e re ta lia tory mo t ive . It m ere ly show s that th e job
res truc tur ing m igh t have occurred anyway a t som e po in t .
On th e o ther hand , a trier of fac t m igh t have seen
Godd ard ’s exp lana t ion of the t im ing of her ac tion as
on ly a post hoc ju st ifica t ion . Goddard sta ted :
I fe lt the s itua t ion I inher ited ( tw o PRN emp loyees
filling a regu lar , par t-t im e posit ion ) wou ld need to
be add ressed . . . . A fter dea ling w i th the mos t
c rit ical is sues facing the Su rg ical Se rv ice Departmen t
th rough the summ er of 2004 , I turned m y at ten t ion
to correc t ing the use o f PRN em p loyees in a regu lar
pos it ion in the fa ll of 2004 .
The Hosp ita l canno t m ee t its burden on summ ary judg –
m ent by hav ing the ac tor say on ly tha t she wa s th ink ing

No . 07-2197

17

vague ly of res truc turing the job and p lanned to do it when
she go t arou nd to it . The fac t tha t the Hosp i ta l a lso pre –
sen ted tes tim ony th a t Goddard had no t had a s itua t ion
in wh ich two PRN s were sharing a job in a l l her pr ior
m anagem en t yea rs at the hosp ita l does not com p el a
d ifferen t r e su lt . To the con trary , the fac t-finder cou ld
con c lud e tha t the fac t tha t the “s itua t ion” con t inued
w ithou t be ing “add ressed” for over three m on ths ind ica tes
tha t there wa s no u rgency or even inev itab ility abou t
the Hosp ital’s decis ion to te rm ina te Hou ston ’s pos it ion .
A lthough the d issen t con tends there is “no doub t” tha t
Goddard in tended to conve rt the PRN po si t ion s from the
t im e she cam e on boa rd desp ite the delay in ca rry ing ou t
th is in ten tion , it is ab le to com e to that con c lu s ion on ly
by v iew ing the eviden ce in the record in the ligh t mos t
favorab le to the H osp ita l . Tha t is no t the standard w e
mus t app ly ; in our v iew there is enough in the record to
ent it le a reasonab le ju ry to find in favor of Hou ston .
* * *
B ecau se Hou ston has es tab lish ed a p r im a facie case of
reta lia t ion and the Hosp ita l has no t shown an absence
o f m a ter ia l fac t on the ques t ion whe ther it wou ld have
taken the sam e ac t ion even w i thou t a re talia tory mo t ive ,
w e REVERSE the d is tr ic t cour t’s gran t of summ ary judg –
m en t in favor of th e Hosp ita l and REMAND the case for
fur ther proceed ings .

18

No . 07-2197

POSNER, C ircuit Judge , d issen t ing . The p la in t iff , Jess ica
Hous ton , con tends tha t the de fendan t , a hosp ita l tha t
form er ly emp loyed her , d ism issed her from her qu ar ter-
t im e job in re ta lia tion for her hav ing comp la ined to the
hosp ita l’s genera l coun se l abou t the hand ling of her
c la im of sexua l harassm en t . There is insu f fic ien t ev idence
o f re talia t ion to a l low the case to go to a jury ; and even
if there were su ffic ien t ev iden ce , th ere is no evidence o f
re ta lia tion for engaging in p rotec ted conduc t , and w ithou t
tha t , there is no v io la t ion of T it le V II. T h e d is tric t judge
wa s there fore r igh t to gran t summ a ry judgm en t fo r the
de fendan t , and we shou ld affirm .
Short ly a fter Hou ston wa s h ired a s an as sis tan t
schedu ler in the hosp i ta l ’s su rgery depar tm en t , whe re
sh e and another co llege s tuden t shared a half – t im e pos i-
t ion , P am Goddard becam e the sen ior d irec tor o f surg ica l
serv ices . She had worked for the hosp i ta l for m any years
and as sen ior services d irec tor su p erv ised more than
200 emp loyees . The job o f as sis tan t schedu ler is a respon si-
b le one . It inc lud es p rov id ing s c rub s to phys ic ians , en ter-
ing in fo rm a t ion con cern ing t imes for su rgery tha t are
g iven to the schedu le r by a nu rse , and orde ring and
p icking up x -rays for use in forthcom ing surg ica l opera –
tions . College kid s w ho like Hou ston were working on ly
one -quar ter o f a norm a l work w eek d id no t w ork regu lar
hou rs and th e re wa s no as su rance tha t e ithe r she or the
o ther assis tan t schedu ler wou ld be availab le at all t im es
when they we re needed . G odd a rd wan ted to rep lace the
two co llege s tud en ts w ith a regu lar ha lf-t im e emp loyee ,
and even tually sh e d id .

No . 07-2197

19

Bu t m eanwh ile th ere had been an inc iden t a t work in
w h ich a m a le emp loyee had sa t down in Hous ton ’s lap
un inv ited and sa id “You ’re beau t ifu l ,” and ano ther
inc iden t in wh ich he had “wh isp ered [to her ] an unw el-
com e sexua l comm ent ,” though she ha s no t sa id wha t the
comm en t w as . A fter the second inc iden t Hous ton com –
p lained to Godd ard . The la t ter was reluc tan t to take
ac t ion becau se Hous ton had no t invoked the hosp i ta l ’s
prescr ibed procedure for comp lain ing abou t sexua l
hara ssmen t—un t il Hous ton vo lun teered the in forma t ion
tha t she had been the v ic t im of a sexua l assau lt , though
no t by the sam e m an o r a t th e hosp i ta l . The sam e af ter-
noon that Goddard learned th is , she spoke to the m ale
emp loyee abou t whom Hous ton had comp lained . H e was
con tr ite , and th ere was no rep et it ion of h is offen s iv e
behav ior . So , in a m a t ter of a few hours , Hous ton ’s griev –
an ce was su ccess fu lly reso lved .
Hou s ton made no fu rthe r c om p la in ts e ithe r abou t the
m a le em p loyee who she c la im ed had harassed her or
abou t anyone e lse , and th is is compe lling evidence tha t
Godd ard ’s ac t ion in response to her comp lain t had been
e ffec t ive . The s ta tem en t in the m a jority op in ion tha t
Hou s ton “probab ly at tribu ted
the
lack o f
fur ther
inc iden ts to her own a t temp ts to avo id ” the a lleged
harasser is a con jec tu re that has no bas is in th e record ;
she d id test ify tha t she tried to m in im ize her con tac ts
w i th h im , bu t tha t is the na tura l reac t ion to som eone
who you th ink has harassed you , wh e ther or no t you
fear fu r the r ha ra ssmen t . There is a lso no ba sis for the
a ssert ion in the ma jor ity op in ion tha t by no t report ing the
conversa t ion w i th the a l leged haras se r , Goddard had lef t

20

No . 07-2197

Hous ton “ in fear tha t a t any m om en t the re m igh t be a th ird
inc iden t .” No reasonab le ju ry cou ld d raw such an in fe r –
ence . Hous ton had m ade no com p la in t abou t the first
inc iden t , a fter the second inc id en t had said tha t she was
in “no ru sh” to mee t w i th Godda rd , filed no comp la in t
agains t the harasser , m ad e no e ffort to fo llow up w i th
G odda rd , and wa ited two mon th s be fore tak ing the
m a t ter to the general counse l . Those are not the ac tions o f
som eone in fear of a th ird inc iden t of hara ssmen t “a t any
m om en t .” W hen she d id even tua lly comp la in to the
genera l counse l, she sa id noth ing abou t fearing a th ird ac t
o f harassm en t . H is notes of the ir m ee t ing , report ing wha t
she told h im , s t a te tha t “ac tion s have stopped .” The
harassm en t was a c losed book . Hous ton ’s comp lain t to
the genera l counse l was abou t Goddard ’s hand ling of
her comp lain t . Sh e to ld h im she shou ld no t have had to
shar e w i th Goddard persona l in forma t ion in order to ge t
act ion on he r comp la in t of hara ssmen t . (O f cou rse , she
d idn ’ t “have” to share any th in g ; a ll she had to do was to
fo llow the procedures spec ified by the hosp ita l, and no t
c la im ed to be inadequa te , for comp lain ing abou t harass –
m en t .)
A t a mee ting w ith Godda rd short ly after comp la in ing
to the gene ra l coun se l, Hou s ton secre tly recorded a con –
versa tion in wh ich Godd ard sa id : “ I have no prob lem
w i th anyone taking anyth ing to the lega l depa rtmen t bu t
I am jus t cur iou s when the s itua t ion was dea lt w i th
I though t it was dea lt w i th very effec t ive ly it was a
p os i t iv e ou tcom e . You got wha t you asked for . . . . I am
so rry that you fee l the w ay you fee l that as d ifficu lt . . . .
I fe l t like it was hand led w e l l bu t obv iou s ly you d idn ’ t

No . 07-2197

21

and you are en tit led to you r op in ion .” Hou ston rep lied :
“I sa id that at the end you hand led it co rrec tly after I to ld
you a ll the s tu f f and I stand o[n ] tha t .” No t ice of the
res truc tured job— a ha lf-t im e job in p lace of the tw o
quar ter -t im e jobs one of wh ich Hous ton had filled—w as
pos ted a few days la ter . Hous ton cou ld no t app ly for
the job because a ha lf-t im e job wou ld no t leave her
enough tim e for her college c lasses .
It s tra in s credu lity tha t Goddard wou ld h ave con –
verted two jobs for college k ids in to on e regu lar job (w ith
benefit s) me re ly to ge t rid of Hou ston becau se of the
la tter ’s c rit ic ism o f Godda rd ’s hand ling of her comp la in t
o f harassm en t . (Even tha t , as we sha l l see , wou ldn ’ t be
enough to crea te a pr im a fac ie case . H ou s ton was no t
com p lain ing tha t Goddard had failed to dea l effec tively
w ith sexua l harassm en t . There was no harassm en t after
she first con tac ted Goddard , and sh e acknow ledges tha t
“a t the end you hand led it correc t ly .” Tha t “end” cam e
w ith in hours o f H ous ton ’s f irst comp lain ing abou t harass –
m en t .) It is tru e t ha t the res truc tu r ing of the job cam e
hard on the hee ls o f the m ee ting (the one Hous ton
secre t ly recorded ) a t wh ich Godd ard expressed irri ta t ion
(who w ou ldn ’t? ) a t H ous ton ’s hav ing comp la ined to th e
genera l counse l . Bu t th er e is no evidence to con trad ic t
Godd ard ’s c la im tha t she in tended the res truc tur ing from
the s ta r t and tha t the de lay in imp lemen ta tion wa s due
to her hav ing more press ing m a t ters to a t tend to in her
new job .
The m a jority exp resses puzz lem en t that Goddard wou ld
pre fer hav ing one part -t im e emp loyee w i th bene fi ts to

22

No . 07-2197

two par t -t im e emp loyees w i thou t ben e f i ts , s ince bene fits
are an expense . Bu t her depar tmen ta l budge t a llow ed for
a part -t im e posi t ion w i th bene fits , and it made sense for
her to use the fund s allo t ted for tha t p os it ion before they
d isappeared in the n ex t budge t cyc le . The m a jor i ty ’s
con jecture is based on a governm en t report conce rn ing
average emp loyee bene f its , a repor t tha t m akes no refer-
ence to th e ben efits expen se of th e St . Joseph Reg iona l
M ed ica l Cen ter— obv iou s ly not a ll emp loye rs pay the
sam e benefit s . M oreove r , a part -t im e emp loyee who
rece ives bene fits is bound to be m ore depend ab le than
one who does no t , because par t -t im e jobs w i th bene fits
are tough to c om e by . “Part -t im e workers are much less
like ly
to have emp loym en t -based hea lth
insu rance
than fu ll-t im ers . . . . In 2004 , 18 .6 percen t o f p a rt -t im e
workers were covered by emp loym en t -based hea lth
bene fits through the ir own emp loyer, compared w i th
61 .5 percen t o f fu ll-tim e worke rs .” Emp loyee Ben efit
Research Ins t itu te , “EBR I N ew s : Grow ing Trend o f Part –
T im e W orkers Feed s In to Overa l l Dec l ine of U .S .
H ea l th Coverage ,” M ay 2 , 2006 , www .ebr i .org /pd f /
PR_735_2M ay06 .pd f (v is ited Aug . 22 , 2008 ); to sam e effec t ,
see Peter S . Fisher , E laine D its ler , Colin Gordon and Dav id
W es t , “N on standard Jobs , Sub standard Ben efits ,” Ju ly
2005 , pp . 15-22 , h t tp :/ /c fcw .org /Nons tandard .pd f (v is ited
Aug . 22 , 2008) . And it is preferab le from an em p loyer ’s
s tandpo in t to have one person do ing a job ra ther than
two sp lit ting it , wh ich comp licates supe rv is ion and in –
creases paperwork ( two separa te personne l f iles , e tc .).
H ou s ton po in ts ou t tha t a fter the h ir ing of a regu lar
em p loyee to do her job she was st ill ava ilab le for part -t im e

No . 07-2197

23

the regu lar emp loyee was som e t im es
work , s ince
swamped , bu t tha t Goddard gave her no wo rk . Bu t
Godd ard tes tified w i thou t con trad ic tion tha t her pract ice
w as to o ffer par t-t im e work to oth er r egu lar emp loyees
first—wh ich wou ld certa in ly be the norma l pract ice— and
tha t there wa s noth ing le ft over for the co llege k id s . (The
m a jor i ty op in ion odd ly de scr ibes th is as “b lack l is t[ ing]”
Hou ston .)
Hous ton argues tha t the fac t tha t Godd ard cons idered
he r rude and d is re spect fu l (notab ly in secre tly record ing
th eir conversa t ion in v io la t ion of Illinois law , 720 ILCS
5 /14 -2 (a )(1 )) is ev idence o f reta lia t ion . No ; it is ev idence
tha t Godd ard cons idered Hous ton rude and d isrespec t-
fu l— and an in fringer o f Goddard ’s legally pro tec ted
p rivacy righ ts and ungratefu l to boo t , for G oddard cou ld
have ins is ted tha t Hous ton fo llow the hosp i ta l’s prescribed
p rocedu re for comp la in ing abou t sexua l hara ssmen t , bu t
ins tead she cu t th e red tape and con fron ted the a lleged
harasser w ithou t requ iring Hous ton to f i le a comp lain t .
It is not a v io la t ion of T it le V II to re fuse to emp loy a
p er son whom you cons ider (whe ther or no t reasonab ly )
rude and d is re sp ec tfu l , bu t in any even t there is no evi-
dence tha t tha t was the m o t ive for the res truc tur ing .
The m a jority th inks it su sp iciou s that Goddard felt
“shocked” and “bew ildered” when she learned tha t
Hous ton h ad comp la ined abou t her to he r emp loyer ’s
lawyer. Tha t is the na tural hum an reac tion to a ground less
comp la in t to you r su p e r ior . The ma jor ity’s reason ing
p laces em p loyees such as P am Goddard in an impossib le
pos it ion : If the emp loyee reac ts ind ignan t ly to be ing

24

No . 07-2197

comp la ined abou t , th is is taken as evidence of re ta lia tion ;
bu t if she reac ts by adm it ting tha t the comp la in t abou t
her to her sup e r ior is ju s t ified , or by not p ro tes ting
seem s tac it ly to adm it tha t , she se ts herse lf and her com –
p an y up for a law su it (w ith the adm iss ion as ev idence )
for failing to hand le a cla im of sexual haras sm en t in
ac cordan ce w ith T itle V II .
The m a jor i ty bols ters its argum en t tha t Goddard w as
conduc t ing a vend e t ta aga ins t Hous ton by say ing that
a fter filling the res truc tured job Godd ard “den ied [Hous –
ton ] work hours , w a ited several m on ths , and then te rm i –
na ted her in Apr il for work ing insu ffic ien t hours (a flaw
that Goddard was ab le to enginee r herse lf) .” Bu t if
Goddard wan ted to p un ish Hou ston , a ll sh e had to do
w as no t g ive her an ass ignm en t . No work , no pay . Wha t
add itional ben efit d id Goddard ob ta in by form ally term i-
n a t ing her? W hy no t have le t her tw is t in the w ind ,
a lw ays hop ing she m igh t rece ive an ass ignm en t?
I conc lude tha t no reasonab le jury cou ld f ind a re ta l ia tory
m ot ive in Goddard ’s ac tions . Bu t i f I am w rong and it
cou ld , it cou ld not take the n ext s tep and find tha t the
reta lia t ion w as for s ta tu tor ily pro tec ted act iv ity , tha t is ,
for “oppos [ing ] any prac tice m ade an un law fu l em p loy –
m en t prac t ice by [T i tle V II] .” 42 U .S .C . § 2000e-3 (a ). Hous –
ton ’s on ly concern in comp lain ing to the general counse l
and repea t ing the comp lain t to Godd ard wa s w ith
Godd ard ’s no t hav ing acted un t il Hous ton told h er of
hav ing been the v ic t im of a sexua l assau lt prior to her
emp loym ent by the hosp ital . Hou ston wa s comp la in ing
to the genera l counse l no t o f hav ing been sexua lly harassed

No . 07-2197

25

(she m en t ioned the a lleg ed harassm en t on ly by way of
background , for tha t grievance had long s ince been re –
so lved ) , bu t o f Goddard ’s hand ling of the grievance . In
th e conve rsat ion w ith Goddard
that she sec re tly
recorded in v io la t ion o f Illino is law , Hous ton con f irm ed
that sh e h ad comp lained to the gen eral counse l on ly
becau se she d idn ’t like hav ing had to share “all th e s tu ff .”
(In fact she hadn ’t had to , as I noted ea r l ie r . ) Y e t she
took the in it ia t ive in sharing the in form a tion w ith the
gen era l counse l and now , in th is law su it , w ith th e wor ld .
The m a jority ’s s tatem en t tha t “ in e ffec t , [Hous ton ] was
ask in g [ the general counse l] to ensure tha t the ins t itu t ion
do som e th ing abou t sexua l harassm en t” is an unw arran ted
gloss on Hou ston ’s own vers ion of h er comp lain t (“ in
e ffec t” is the g iveaway ) . Hous ton was no t concerned
abou t sexua l harassm en t . The a lleged harassm en t was
h is tory , and there is no th ing to sugges t tha t she w as
concerned abou t ac tua l or po ten t ia l harassm en t of other
emp loyees . The s ta tem en t in a footno te of the m a jority
op in ion tha t “an emp loyee in the m id s t of comp la in ing
abou t und er ly ing harassm en t may w e ll w ish to cr it ic ize
the company ’s p rocedu re s a t the sam e t im e” thu s con ta in s
two er rors : Hou ston wa s not comp la in ing abou t be ing
h arassed— tha t comp la in t had been re so lved
long
ago— and sh e was no t comp la in ing abou t the company ’s
procedu res either . I canno t find any h in t tha t she w as
d issa t is fied w ith those p ro cedures . She does argue tha t
Goddard v io la ted them . The hosp ital’s an t ihara ssmen t
po licy (the on ly p o s sib le “p rocedu re s” to wh ich the
m a jority op in ion can be referr ing ) s ta tes tha t “If you
be lieve you or any o ther emp loyee is being sub jec ted to

26

No . 07-2197

conduc t or comm en ts tha t v io la te th is po l icy , you are
en cou raged and have a respon sib ility to imm ed iately
repor t these ma t ters to the Hum an Resources Depar t –
m en t . If for any reason you do no t fee l com fortab le report –
ing you r concerns to Hum an resources , you m ay repor t
your con cerns to the In tegrity O f ficer .” H ouston be lieved
that sh e had been harassed , and sh e th e r e fore had a
re sp ons ib ility to report the m a t ter no t to Goddard , bu t
to e ithe r the Hum an Resou rces Departmen t or the
In tegrity O f ficer . She d id no t fu l fill tha t respons ib ility .
Goddard , who d id no t w i tn es s the inc iden t tha t Hous ton
a lleged to be ha rassm en t , d id no t , wh en Hous ton first
spoke to her , be lieve that Hou ston had b e en harassed .
No t tha t she d isbe lieved it ; she jus t d idn ’t have ev idence
beyond H ou s ton ’s say -so. So the po licy d id not requ ire
her to repor t the m a t ter to the Hum an Resou rces Depar t-
m en t or the In tegr i ty Off icer .
No t ice also tha t Godd ard cou ld have comp l ied w ith
the an t iha ra s sm ent po licy
fu lly
ju s t by report ing
Hous ton ’s concern to the Hum an R esources Depar tm en t .
That wou ld have de layed remed ia tion . Goddard wen t ou t
of her way , by d irec t ly con fron t ing the a l leged haras ser ,
to m ake sure tha t the prob lem was reso lved imm ed ia tely .
The s ta tem en t in the m a jority op in ion tha t Hous ton
“sub jec tively felt that she had been sexual ly haras sed ,”
wh i le t rue , is irre levan t . She wa s not (I repea t) comp la in ing
abou t th e harasser . Sh e was com p la in ing abou t Goddard ,
who had not hara ssed her . If when Hou s ton m e t w i th the
gene ra l coun se l she w a s s till conce rned abou t be ing
sexua lly harassed , why d idn ’ t she te ll h im ? N or had

No . 07-2197

27

Godd ard failed to hand le H ous ton ’s comp lain t of sexua l
harassm en t proper ly . She had , as Hous ton concedes ,
ac ted correc t ly in th e end . And in the beg inn ing too; her
in it ia l re luc tance to take ac t ion h ad been reasonab le . W e
wa rned in M cDonnel l v . C isneros, 84 F .3d 256 , 260 -61 (7 th
C ir . 1996 ), aga ins t p lac ing superv isors on a razor ’s edge ,
where if they fa il to a c t prec ip i ta tely on a comp lain t of
sexual haras sm en t they are sued for v iola ting T itle V II ,
wh ile if they ac t prec ip i ta tely they are sued by the a lleged
harasser . “A lleged harassers . . . have brough t a num ber of
s tate comm on law c la im s , inc lud ing wrong fu l d ischarge ,
breach of con trac t , tor tious in terferen ce w i th an emp loy –
m en t con trac t , inva s ion o f pr ivacy, neg ligen t inves tiga –
t ion , in ten t iona l in terference w ith an emp loym en t re la –
t ionsh ip , de fam a t ion , libe l, and in ten t iona l in f lic t ion of
em ot ional d ist ress .” 1 A lba Con te , Sexua l H arassm en t in the
W orkp lace : Law and P ractice 703 -05 (3d ed . 2000) ; see also
Barbara L indem ann & Dav id D . Kadue , Sexua l H arass-
m en t in Em p loym en t Law 359-60 (1992) .
A t firs t Godda rd wa sn ’t sure tha t the inc iden t abou t
wh ich Hou ston w a s com p lain ing had been sexually
m o t iva ted , because Hous ton ’s ema il reques t ing the m ee t-
ing to d iscu ss i t had sa id tha t it was “not a rush” (tha t is ,
tha t there wa s no u rgency abou t Godda rd ’s m eet ing
w i th her) and because H ous ton w as unw illing to us e th e
hosp ita l’s prescribed procedure for repor ting sexua l
harassm en t . Short ly after the m ee ting w i th Goddard o f
wh ich Hou ston now comp la in s (the m eet ing in wh ich she
revea led the sexua l assau lt ), she em a iled Godd ard say ing :
“Thank you . . . so much for lis ten ing and unders tand ing .
You m ad e m e fee l a lo t m ore com fortab le when I le ft .

28

No . 07-2197

Thanks ( .” The statem ent in the m a jor ity op in ion tha t the
m eet ing to wh ich the em a il re fe rred wa s not abou t the
a lleged sexua l har assm en t is unpersuas ive in ligh t of
Hous ton ’s fa ilure to o ffer an a l te rna t ive exp lana t ion of
wha t the m ee ting was abou t .
Hous ton is not comp lain ing that Goddard in te rroga ted
he r abou t he r s exu a l h is tory in a way tha t m igh t d iscour-
age comp la in ts abou t sexua l hara ssmen t . T here wa s no
in terroga tion . The in forma t ion abou t a prev ious sexua l
assau lt was vo lun teered by Hous ton in order to prod
Goddard into what cou ld have tu rned ou t to be a p rec ip i-
ta te reac tion to the com p lain t . A s the m a jority pu ts it “In
re spon se [to Godda rd ’s re luc tance to speak to the
a l leged harasse r un less Hous ton f i led a form a l comp la in t ] ,
Hous ton revea led tha t sh e h ad b een a v ic t im of sexua l
as sau lt .”
Godd ard ’s reluc tance to ac t , un t il Hous ton vo lun teered
the in forma t ion suggest ive o f Hous ton ’s spec ia l sens it iv ity
to sexua l harassm en t , was no t on ly reasonab le bu t a lso
harm less , because no harassm en t occurred in the br ie f
in te rval (a m a tter of hou rs ) be tween Hou s ton ’s comp la in –
ing abou t the hara ssmen t and Godda rd ’s tak ing ac tion ,
conceded by Hous ton to have been e ffec t ive— in fac t i t
w as , as I no ted , beyond the ca ll of du ty .
The on ly possib le exp lanat ion for H ou ston ’s d ram at ic
sw erve from be ing p lea sed w i th Goddard ’s hand l ing of
the situa t ion
lit iga tion
to
(the sm iley -face em a il)
p lann ing , comp lete w ith an i l lega l secre t tape record ing ,
is tha t she saw tha t she w as abou t to lose he r job . O ther-
w ise the two -m on th in terva l be tw een the m ee ting w i th

No . 07-2197

29

Goddard tha t is the core of he r comp la in t abou t Goddard ’s
handling of the harassm en t gr ievance and the m ee ting w i th
the gene ra l coun se l makes no sense (and she reques ted and
m e t w ith the genera l counse l on the sam e day , so th e
d e lay was her doing , not h is) . Noth ing had happen ed in
between . W e know she knew abou t the job re st ruc tu r ing
by Sep tem ber 26 , and she m ay w e ll have got ten w ind of
it earlier— befo re the m ee ting w ith the gen eral counse l ,
wh ich took p lace on Sep tember 17 .
She c la im s not to have known tha t Godd ard had spoken
w i th the accu sed haras ser abou t the inc iden t . Bu t Goddard
had to ld Hou ston she wou ld do so , and why wou ldn ’ t
Hous ton e ither assum e she had or , i f uncerta in , check
w ith h er? It ’s no t as if th e harassm ent had con tinued ,
wh ich wou ld have suggested tha t Godd ard had no t
fo llowed th rough . On the con tra ry , the fact tha t the
harassm en t ceased shou ld have m ade Hous ton rea lize
tha t Godd ard had done as prom ised— as sh e had .
To say as the m a jor i ty op in ion does tha t Hous ton
“engaged in a statu tor ily p ro tec t ed ac tiv ity when she
com p la ined up the cha in o f comm and” is to equ ivocate .
H er comp lain t to Goddard abou t sexua l harassm en t was
p ro tec ted ; her comp la in t to the gene ra l coun se l abou t
Godd ard , and i ts r ep e t it ion to Godd ard in the recorded
conve rsat ion , were not . That is why , ev en i f Goddard d id
r es t ru ctu re th e job ju st in ord er to ge t rid of Hou ston
for hav ing crit ic ized her , her ac tion , wh ile it wou ld no t
have been n ice , cou ld not have v iola ted T itle V II .
Aga ins t th is the m a jority op in ion jus t c ites a d is tr ic t
cou rt d ec ision and rem arks that it m ust “ tak[e ] the fac ts in

30

No . 07-2197

the l igh t m os t favorab le to Hous ton .” Th e d is tr ic t cou r t
case is inappos ite (and anyway is not au thority ) because
the p la in t iff’s comp lain t in tha t case concerned the vio –
la tion of du t ie s imposed by T it le V I I, and there wa s no
v io la t ion of any such du ty in th is case . Hous ton com –
p la ined abou t hara ssmen t ; the ho sp ital re sponded ; the
ha rassm en t ceased . The ev idence tha t she was no t com –
p lain ing to the genera l counse l abou t prote c ted act iv ity
cons is ts of her own adm iss ions .
Suppose she had comp la ined to Godda rd abou t the
firs t inc iden t o f unw an ted at ten tion from the m ale
cowo rke r, Godda rd had done noth ing , and then the
second in c iden t had occu rred . Whe ther or no t Goddard
had ac ted reasonab ly in fa iling to p revent tha t second
inc iden t , H ou s ton cou ld not be fired for comp la in ing
abou t Godd ard ’s fa ilure ; for tha t fa i lure wou ld ra ise a
ques t ion abou t th e ad equacy of th e hosp ita l’s p rac t ic e s
or p rocedures for preven t ing sexua l harassm en t , and so
she wou ld no t have lacked a “reasonab le belie f” (whe ther
or not correc t) that the hosp ita l had vio lated T itle V II .
H er comp lain t wou ld be statu to rily p ro tec ted , e .g . ,
H o lland v . Jef ferson N a tiona l L ife Ins. Co ., 883 F .2d 1307 , 1315
(7 th C ir . 1989 ), because she wou ld be comp la in ing abou t
inac t ion , no t abou t insens it iv ity .
A ll tha t the hosp ita l “was requ ired to do in order to
sa t is fy its ob liga t ion s under T it le V II was to take p romp t
act ion reasonab ly ca lcu la ted to end the hara ssmen t and
reasonab ly like ly to preven t the condu c t from recurring .
The s tep s taken by [G oddard ] c lear ly sa t is fied th is s t an –
dard .” B erry v . D e lta A irlines , 260 F .3d 803 , 813 (7 th C ir .

No . 07-2197

31

2001) ; see also C erros v . Stee l Techno log ies , Inc ., 398 F .3d 944 ,
954 (7 th C ir . 2005) (“ the eff icacy of an emp loyer ’s
rem ed ia l ac tion is ma ter ia l to our de term ina t ion whe ther
the ac t ion was ‘reasonab ly like ly to preven t the harass-
m en t from recu rring’ ”) ; W i l l iam s v . W aste M anagem en t o f
I ll ino is , 361 F .3d 1021 , 1029 -30 (7 th C ir . 2004 ) (“ the ne t
resu l t [of a m ere verba l warn ing] was tha t W i ll iam s ’s
comp la in t wa s dea lt w i th w ith in twen ty -fou r hou rs , and
he exp er ienced no fur the r race-based haras sm en t”) ;
And reoli v . Ga tes , 482 F .3d 641 , 644 n . 2 (3d C ir . 2007) (“a
rem ed ia l ac tion tha t stops the harassm en t is ad equa te as
a m at te r of law ”) ; Swenson v . Po t ter , 271 F .3d 1184 , 1196 –
98 (9th C ir . 2001 ) ; Sp icer v . V i rg in ia , 66 F .3d 705 , 710 -11
(4 th C ir . 1995 ). No reasonab le pe rson wou ld have though t
tha t Godd ard had v io la ted T i t le V II by her hand l ing of
Hous ton ’s comp lain t ; the m a jority ’s con trary conc lu s ion
is incons is ten t w ith the case law .
M y co lleagues a re dece ived . Th is is not a ca se abou t
the sexua l ha ra ssmen t of an emp loyee , bu t abou t the
lit iga tion harassm en t of an emp loyer. The d is tric t judge
w as r igh t to end it .

9 -1 2 -0 8

Magyar v. Saint Joseph Reg’l Med. Ctr. – Summary

SEXUAL HARASSMENT – RETALIATION

Magyar v. Saint Joseph Reg’l Med. Ctr., No. 07-2197 (7th Cir. Sept. 12, 2008)

The United States Court of Appeals, Seventh Circuit reversed a district court’s grant of summary judgment in favor of a hospital in a suit brought by a former employee alleging retaliation for allegations of sexual harassment, holding that the employee adequately demonstrated that she had engaged in a statutorily protected activity and that she suffered an adverse employment action as a result.

The court found that "complaining up the chain of command" by the employee after being dissatisfied with her supervisor’s response was still statutorily protected activity because the underlying allegation remained sexual harassment. Further, there was undoubtedly an adverse employment action since the employee was restructured out of her position. Finally, the court concluded that causation was sufficiently established to survive summary judgment, considering that the timing between the final complaint and the restructuring of the employee’s position was at least nine days and at most one month apart.