Magriz v. St. Barnabas Hosp.

Medical Malpractice

Magriz v. St. Barnabas Hosp., 2007 N.Y. Slip. Op. 06444 (N.Y.A.D. Aug. 16, 2007)

The Supreme Court of New York, Appellate Division, dismissed a patient’s malpractice suit against a hospital, holding that because the patient’s claims against the individual physicians who treated her in the hospital’s emergency room were barred by the statute of limitations, it necessarily followed that any related cause of action against the hospital based on the doctrine of employer liability must also be dismissed. The court noted that "while a hospital may be vicariously liable for acts of independent physicians where a patient enters the hospital through the emergency room, and seeks treatment from the hospital rather than a particular physician, such rationale presupposes that the patient has a viable cause of action against the physicians who treated her."

 

MacDonald v. City Hosp. (Summary)

MALPRACTICE CAPS

MacDonald v. City Hosp., Inc., No. 35543 (W.Va. June 22, 2011)

The Supreme Court of Appeals of West Virginia upheld the constitutionality of a statute setting caps of $500,000 for non‑economic damages in medical malpractice cases involving death or significant injury, and caps of $250,000 for non-economic damages in other malpractice cases. The court found that the legislature had the power to institute such caps in an attempt to attract physicians to the state by decreasing medical malpractice premiums, and noted that its decision was consistent with the majority of jurisdictions that have considered caps on non-economic damages.

In addition, the court affirmed the lower court’s decision to deny the hospital’s motions for summary judgment, judgment as a matter of law, and for a new trial as to the patient’s negligence claim against the hospital. It agreed with the lower court that, pursuant to the hospital’s own policies and procedures, the pharmacy had a duty to alert the physician of possible adverse interactions of the medicines he prescribed. And the court found that it was reasonable for the jury to conclude that the failure of the pharmacy to warn the physician was a proximate cause of the patient’s injuries.

 

Machamer v. Hospital of the University of Pennsylvania

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANICE MACHAMER : CIVIL ACTION:

v. :

:

HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA : NO. 98-6109

MEMORANDUM AND ORDER

Norma L. Shapiro, S.J. May 8, 2000

Janice Machamer (“Machamer”), a nursing assistant, alleges
her employer, the Hospital of the University of Pennsylvania
(“HUP”), violated the Americans with Disabilities Act, 42 U.S.C.
12101 et seq. (“ADA”), when it refused to accommodate her
disability by transferring her to the night shift. HUP, moving
for summary judgment pursuant to Federal Rule of Civil Procedure
56(c), claims that Machamer did not suffer from a disability, is
not a “qualified individual with a disability” under the ADA, and
that it had no knowledge of Machamer’s alleged disability so it
had no duty to provide any accommodation. There are no genuine
issues of material fact regarding these claims; HUP’s motion for
summary judgment will be granted.

BACKGROUND

Machamer was hired by HUP as a nursing assistant on December
12, 1995. On March 25, 1996, during her probationary period,⁽¹⁾
Machamer sustained a back injury while lifting a patient from a
bed. Machamer took a leave of absence, during which time she
received workers’ compensation benefits and underwent treatment
for her injury from various practitioners in the University of
Pennsylvania Health System. After examining Machamer in November
and December, 1996, Dr. William Ball and Dr. David Lenrow found
that Machamer could not perform her functions as a nursing
assistant without reasonable accommodation. On December 18,
1996, Dr. Marilyn Howarth examined Machamer and found that she
was able to return to work with no restrictions.

Machamer resumed her nursing assistant position on December
30, 1996, and was notified that she would be placed on the day
shift to receive training and mentoring necessary for her to
complete successfully her post-hiring probationary period
(extended from May 11, 1996 because of her work related injury).
During that shift, Machamer experienced back pain, was referred
to Occupational Medicine, examined by Dr. Howarth, and released
to return to full duty. Machamer proceeded to work several day
shifts until she was terminated on January 8, 1997; HUP believed
two incidents on December 30 and December 31, 1996 threatened the
well-being of patients under Machamer’s care. See 5/27/99 Nancy
Rodenhausen Affidavit, p. 2. On September 8, 1997, Machamer
filed a petition for reinstatement of workers’ compensation
benefits; this petition was denied. See 5/27/99 Rosemary Osman-Koss Affidavit, p. 2.

HUP argues that summary judgment in its favor should be
granted because Machamer was not disabled when she returned to
work, was not a “qualified individual with a disability” under
the ADA, and was terminated for her failure to provide competent
care to her patients. Machamer claims that she was disabled, she
was terminated because of her disability, and she could have
continued to work with a reasonable accommodation for her
disability, i.e., transfer to the night shift.

DISCUSSION

Summary judgment may be awarded “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 party moving for summary judgment bears the initial
burden of demonstrating the absence of facts supporting the non-moving party’s claim by pointing to the pleadings, depositions or
other items mentioned in Rule 56(c); the non-moving party must
then introduce specific evidence of a genuine issue for trial.
See Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). “When a
motion for summary judgment is made and supported as provided in
[Rule 56], an adverse party may not rest upon the mere
allegations or denials of the adverse party’s pleading, but the
adverse party’s response, by affidavits or as otherwise provided
in [Rule 56], must set forth specific facts showing that there is
a genuine issue for trial. If the adverse party does not so
respond, summary judgment, if appropriate, shall be entered
against the adverse party.” Fed. R. Civ. P. 56(e).

A genuine issue of material fact exists only when “the
evidence is such that a reasonable jury could return a verdict
for the non-moving party.” See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In making this determination, the
court must draw all justifiable inferences in the non-movant’s
favor. See id. at 255.

The ADA provides that “[n]o covered entity shall
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. 12112(a).

A “qualified individual with a disability” is defined by the
ADA as a person “with a disability who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires.”
42 U.S.C. 12111(8). A “disability” is defined as: “(A) a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a
record of such impairment; or (c) being regarded as having such
an impairment.” 42 U.S.C. 12102(2).

To establish a prima facie case of discrimination under the
ADA, the plaintiff must show: “(1) [s]he is a disabled person
within the meaning of the ADA; (2) [s]he is otherwise qualified
to perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) [s]he has
suffered an otherwise adverse employment decision as a result of
discrimination.” See Gaul v. Lucent Technologies, 134 F.3d 576,
580 (3d Cir. 1998).

As the party moving for summary judgment, HUP has pointed to
affidavits and depositions that illustrate the absence of facts
supporting Machamer’s claim. HUP refutes Machamer’s claim of
disability by demonstrating that Dr. Howarth examined Machamer
and released her to work as a nursing assistant without
restriction and without requiring any accommodation. See 5/28/99
Dr. Marilyn Howarth deposition, p. 2. HUP contests Machamer’s
qualification to perform the essential functions of the job, with
or without reasonable accommodations, because in Machamer’s
deposition she stated that she could not have performed her job
on the night shift and HUP could have provided no accommodations
enabling her to perform that job. See 5/10/99 Janice Machamer
deposition, p. 258-59. Finally, HUP contends that Machamer’s
termination did not result from discrimination, but that Machamer
was terminated because she had, on two occasions, provided sub-standard patient care. On December 30 and December 31, 1996,
Machamer: 1) inappropriately left a confused patient’s bed in the
high position with the side rails down; and 2) improperly
manipulated a patient’s peritoneal dialysis bag that caused an
adverse outcome for the patient. See 5/27/99 Nancy Rodenhausen
affidavit, p. 3; see also Def. Pre-trial Mem. p.3. HUP having
met its burden, Machamer must establish specific material facts
at issue in the record to defeat the motion for summary judgment.
Machamer has not met her burden for any of the elements
required to establish her prima facie case. In determining
whether Machamer was “disabled” within the meaning of the ADA
after her return to work in December, 1996, this court is to
“determine the existence of disabilities on a case-by-case
basis.” See Albertsons, Inc. v. Kirkingburg, __U.S. __, 119
S.Ct. 2162, 2169 (1999). To prove that she is “disabled,”
Machamer must demonstrate that she has, or has a record of, a
physical impairment that substantially limits a major life
activity and that she had this limitation during the time she
claims she was denied reasonable accommodation. See Taylor v.
Phoenixville School Dist., 184 F.3d 296, 308 (3d Cir. 1999).

The issue is Machamer’s ability to work as a nursing
assistant on her return in December, 1996. Working has been
identified as a major life activity. See Walton v. Mental Health
Assoc., 168 F.3d 661, 665 (3d Cir. 1999). If Machamer’s ability
to work was substantially limited by a physical impairment at the
time she requested accommodation, she meets the “disability”
requirement.

Although the ADA does not define “substantially limits,” the
Supreme Court has stated that “substantially” suggests that the
limitation must be “considerable or specified to a large degree.”
See Sutton v. United Airlines, Inc., __ U.S. __, 119 S.Ct. 2139,
2150 (1999), but it need not be the equivalent of an “utter
inabilit[y].” See Albertsons, 119 S.Ct. 2162 at 2168.

Machamer claims that there were conflicting medical opinions
regarding her condition, but has not provided any evidence on the
record of such a conflict. The alleged opinions of Dr. Lenrow
and Dr. Ball, if verified, would have created this conflict, but
stating the opinion of her physician in the complaint or motion
is not enough to meet her burden for opposing a summary judgment
motion. See Fed. R. Civ. Proc. 56(c).

Machamer also claims that, even if she were not disabled at
the time, she had a “record of such impairment” and, therefore,
qualified as disabled. A “record of such impairment” means a
“history” of the condition such as a chronic reoccurrence of an
ailment. See School Bd. Of Nassau County v. Arline, 480 U.S.
273, 281 (1987). Machamer has not “by affidavits or as otherwise
provided in [Rule 56], set forth specific facts showing that
there is a genuine issue” of the existence of such a history.
See Fed. R. Civ. P. 56(e). In fact, Machamer stated in her
deposition that she had never had a back injury prior to her
injury on March 25, 1996. See 5/10/99 Janice Machamer
deposition, p. 168. Machamer has not met her burden of
demonstrating the existence of a genuine issue of material fact
on the record.

Machamer has also not met her burden of demonstrating that
there are genuine issues of material fact regarding her
qualifications to perform the essential functions of her job,
with or without reasonable accommodations by the employer.
Machamer argues she was qualified if given an accommodation by
placement on the less burdensome night shift and that she did
work several day shifts. In her deposition, Machamer stated that
there were no positions in the hospital that she could have
performed between December 30, 1996 and January 8, 1997. See
4/28/99 Janice Machamer deposition, pp. 167-68, 250-51, 258-61.⁽²⁾
HUP demonstrated that her performance during that period was sub-standard, and Machamer has produced no evidence to counter this
allegation.

Machamer has not demonstrated there are genuine issues of
material fact regarding whether the adverse employment decision
she suffered was a result of disability discrimination. HUP
offered a nursing manager’s affidavit that Machamer was
terminated because of two incidents in which Machamer’s actions
threatened the well-being of patients under her care. Machamer
provided no evidence challenging this or establishing the
existence of a genuine issue of material fact regarding her
termination.

CONCLUSION

As the adverse party to the motion for summary judgment,
Machamer may not merely rest upon the pleadings, as she did, but
must provide admissible evidence demonstrating the existence of a
genuine issue for trial. Machamer has failed to meet her burden
and, because HUP established it is entitled to a judgment as a
matter of law, summary judgment will be granted in favor of HUP.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANICE MACHAMER : CIVIL ACTION

:

v. :

:

HOSPITAL OF THE UNIVERSITY :

OF PENNSYLVANIA : NO. 98-6109

 

ORDER

AND NOW, this ___th day of May, 2000, upon consideration of
defendant’s motion for summary judgment and plaintiff’s response
in opposition, after argument on June 24, 1999 at which counsel
for all parties were heard, in accordance with the attached
memorandum,

It is ORDERED that:

Defendant’s motion for summary judgment is GRANTED. Judgment is entered for the defendant and against the plaintiff.

_____________________________

Norma L. Shapiro, S.J.

1. Her ninety day probationary period had been extended from March 11,
1996 to May 11, 1996 because of absenteeism and failure to meet work
performance goals; more time was required to evaluate her performance.

2. Plaintiff’s counsel argues that “[p]laintiff’s deposition testimony on
the [sic] Hospital relies merely points to Plaintiff’s confusion about the
legal niceties of ADA law.” The “legal niceties” of ADA law are irrelevant to
what Machamer thought.

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.

)
)
)
)
)
)
)
)
)
)
)
)

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 .

-3-

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.

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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 ) .

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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

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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 .

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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

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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

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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

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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.

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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.

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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

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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

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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 .

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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 .

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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 .

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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.

 

MacManus v. Chattanooga-Hamilton County Hosp. Auth.

JURISDICTION IN HCQIA CASES

MacManus v. Chattanooga-Hamilton County Hosp. Auth., No. 1:08-cv-96 (E.D. Tenn. May 19, 2008)

The United States District Court for the Eastern District of Tennessee found that a hospital did not create federal jurisdiction by evoking the Health Care Quality Improvement Act of 1986 ("HCQIA") as its defense to a lawsuit brought by a physician. The physician alleged that the hospital was liable for breach of contract, tortious interference with a contractual relationship, and interference with prospective business advantages after it suspended his medical staff privileges. The hospital removed the case to federal court, asserting federal question jurisdiction on the basis that the affirmative defenses it intended to assert would invoke the HCQIA. However, the court remanded the case back to state court, holding that a federal court does not have jurisdiction over a case when federal law is evoked by a defense. The court also found that the physician could establish each of the elements of his claims without any reference to federal law.

Lyons v. Iowa Bd. of Med. (Full Text)

IN THE COURT OF APPEALS OF IOWA

No. 9-340 / 08-1538
Filed June 17, 2009

LYNN LYONS, D.O.,

Petitioner-Appellant,

vs.

IOWA BOARD OF MEDICINE,

Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Douglas K. Staskal,

Judge.

A urologist appeals the district court decision affirming the Iowa Board of

Medicine’s discipline of him, claiming multiple errors. AFFIRMED.

Michael Sellers of Sellers, Haraldson & Binford, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Theresa Weeg, Assistant

Attorney General, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

2

VAITHESWARAN, P.J.

Lynn Lyons appeals a district court decision affirming the Iowa Board of

Medicine’s suspension of his license to practice medicine in Iowa. He claims the

board (A) was without authority to discipline him in connection with his treatment

of a single patient, (B) did not have jurisdiction to commence a disciplinary action

against him as a non-resident of Iowa with a lapsed license, (C) erred in refusing

to appoint a new panel for his second hearing, and (D) erred in refusing to

facilitate the production of certain medical records.

I.

Background Facts and Proceedings

Lynn Lyons, a board-certified urologist, practiced in Fort Dodge, Iowa,

from 2000 to 2001. One of his patients was a teenage girl with urination issues.

To treat her condition, Dr. Lyons twice suffused the girl ’s bladder with a solution

containing the drug capsaicin. The patient’s kidneys soon failed, as did her

bladder and ureters.

The patient was taken to the Mayo Clinic in Minnesota, where physicians

transplanted one of her father’s kidneys into her body and inserted a catheter to

drain her urine.

Meanwhile, Lyons moved to Dallas, Texas, where he continued to practice

medicine. His Iowa medical license became inactive in 2004.

In 2005, the board alleged that Lyons was professionally incompetent.

Lyons did not appear at the hearing. Following the hearing, the board issued a

proposed decision revoking Lyons’s Iowa medical license. On learning of the

ruling, Lyons asked to have the proposed decision rescinded on the ground that

3

he did not receive notice of the hearing. The board agreed to hold a second

hearing.

Two of the three board members who served on the original panel sat on

the second panel. Lyons initially objected to their participation. Before the

hearing, however, his attorney softened his position, telling those board

members, “If on the record both of you are prepared to willingly state that you are

confident and positive [your participation in the prior hearing] will not be a

problem, we will accept that.” Both panel members effectively made that on -the-

record affirmation. The panel considered evidence and issued a proposed

decision finding Lyons professionally incompetent. The panel imposed a ninety –

day suspension of Dr. Lyons’s Iowa license.

After the proposed decision was filed, Lyons asked the board for an

additional 3500 pages of medical records. The Department of Inspections and

Appeals granted Lyons’s request. Shortly thereafter, Lyons asked the board to

issue a subpoena for all the patient ’s medical records from the Mayo Clinic. The

State moved to quash the request and the administrative law judge granted the

State’s motion. The judge also denied Lyons’s request to have the board obtain

a medical release from the patient so that he could directly obtain the Mayo Clinic

records. The case proceeded to an appeal hearing before the Board of Medicine

after which the full board affirmed the proposed panel decision. On judicial

review, the district court affirmed the board. This appeal followed.

II.

Analysis

A.

Lyons first contends the board did not have “authority to discipline a

licensee in a case involving alleged simple negligence in a single case.” This

4

argument appears to implicate the standard of review set forth in Iowa Code

section 17A.19(10)(b) (2007) (“Beyond the authority delegated to the agency by

any provision of law or in violation of any provision of law.”).

Lyons was disciplined for violation of Iowa Code sections 147.55(2) and

272C.10(2), as defined in a board rule. See Iowa Admin. Code r. 653-

12.4(2)(a)–(c) (2005). Iowa Code section 147.55(2) provides that a license to

practice a health-related profession shall be revoked or suspended when a

licensee is guilty of professional incompetency. Section 272C.10(2) provides that

the medical licensing board shall establish ru les for the suspension or revocation

of a professional

license

for multiple grounds,

including

“professional

incompetency.” The Board’s rule defines “professional incompetency” as

including:

a.
A substantial lack of knowledge or ability to discharge
professional obligations within the scope of the physician ’s or
surgeon’s practice;
b.
A substantial deviation by the physician from the standards
of learning or skill ordinarily possessed and applied by other
physicians or surgeons in the state of Iowa acting in the same or
similar circumstances;
c.
A failure by a physician or surgeon to exercise in a
substantial respect that degree of care which is ordinarily exercised
by the average physician or surgeon in the state of Iowa acting in
the same or similar circumstances.

Iowa Admin. Code r. 653-12.4(2)(a)–(c). Nothing in these cited statutory

provisions or in the cited rule precludes the board from disciplining a physician

for substandard treatment of a single patient. An unpublished court of appeals

opinion on which Lyons relies for a contrary proposition did not construe these

provisions and, for that reason, is inapposite. Additionally, the Iowa Supreme

5

Court has affirmed a finding of incompetency based on the treatment of a single

patient in a related context, stating:

Logic does not support the idea that no matter how bad an incident
of malpractice may be
further
the board must await
that
incompetent acts of dental practice before it can suspend the
dentist’s license. We reject this notion.

Bd. of Dental Exam’rs v. Hufford, 461 N.W .2d 194, 201 (Iowa 1990).

Under this subheading, Lyons also appears to assert that there was

insufficient evidence

to support

the board’s

findings of professional

incompetence. Our review of this assertion is for substantial evidence . Iowa

Code § 17A.19(10)(f). A peer review report listing five significant violations of

professional norms, together with other records and testimony, amount to more

than substantial evidence supporting the agency’s fact-findings. While pieces of

this evidence, taken out of context, might support different findings, those pieces

do not require reversal under the pertinent judicial review standard. See Trade

Prof’ls, Inc. v. Shriver, 661 N.W .2d 119, 123 (Iowa 2003) (stating that agency, as

fact-finder, is free to accept or reject evidence as it chooses).

B.

Lyons next argues that the board did not have authority to pursue

disciplinary action against him because his license was inactive. Again, we apply

the standard of review set forth in Iowa Code section 17A.19(10)(b).

Contrary to Lyons’s assertion, the legislature has authorized the board to

regulate lapsed licenses. Specifically, a pertinent statute states that a lapsed

license is not invalid. Iowa Code § 147.10 (“Failure to renew the license within a

reasonable time after the expiration shall not inva lidate the license, but a

reasonable penalty may be assessed by the board.”). Another statute allows the

6

board to address “inactive licensee re-entry.” See id. § 272C.1(3); see also id.

§ 272C.2(2)(f). Finally, board rules implementing the pertinent sta tute specify

that “[a] physician whose license is inactive continues to hold the privilege of

licensure in Iowa but may not practice medicine under an Iowa license until the

license is reinstated to current, active status.” Iowa Admin. Code r. 653 –

9.12(1)(c) (2008). The board, therefore, was authorized to act on Lyons ’s lapsed

license.

We recognize that Lyons did not put his lapsed Iowa license in issue by

expressing an intent to renew it. This fact cannot deprive the board of authority

to consider a complaint arising from his treatment of a patient while he was

practicing in Iowa. As the Iowa Supreme Court stated,

We do not consider the question involved moot, merely because
the appellee is not at present making full use of his license to
practice . . . . To hold otherwise places in the hands of the accused
practitioner himself the power to escape the penalty provided by
law for a violation of the rules governing the conduct of his
profession, no matter how gross his misconduct may have been.

State v. Otterholt, 234 Iowa 1286, 1291–92, 15 N.W .2d. 529, 532 (1944). We

conclude the board had authority to discipline Lyons notwithstanding the fact that

his Iowa license lapsed and Lyons did not affirmatively seek reinstatement.

C.

Lyons contends that it was improper for two members of the panel

that authored the first proposed decision to serve on the panel at his second

hearing. We conclude Lyons acquiesced in their participation at the second

hearing and, accordingly, waived error on this issue.

D.

Lyons finally takes issue with the administrative law judge ’s refusal

to facilitate the release of additional medical records. A party may request

7

additional evidence after the issuance of a proposed decision if certain criteria

are met. Iowa Admin. Code r. 653-25.24(2)(e). Lyons was allowed to submit

3500 additional pages of medical records. Additionally, Lyons knew before the

proposed decision was issued that the patient was treated at the Mayo Clinic,

and he could have sought documents from that clinic in advance of the second

hearing. For these reasons, we conclude the board did not act unreasonably or

arbitrarily in denying Lyons’s request for a subpoena or medical release.

AFFIRMED.