Bommiasamy v. NES Oklahoma, Inc.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

VEERASIKKU BOMMIASAMY, M.D., )

)

Plaintiff, )

)

v. ) Case No. 4:21-cv-04001-SLD-JEH

)

GALESBURG HOSPITAL CORPORATION )

d/b/a GALESBURG COTTAGE HOSPITAL and )

NES OKLAHOMA, INC., )

)

Defendants. )

ORDER

Plaintiff Veerasikku Bommiasamy alleges that Defendants NES Oklahoma, Inc. (“NES”)

and Galesburg Hospital Corporation d/b/a Galesburg Cottage Hospital (“GCH”) discriminated

against him on the basis of national origin and age, in violation of Title VII, 42 U.S.C. §§ 2000e–

2000e-17, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634.

Before the Court are NES’s Combined Motion and Memorandum of Law in Support of

Summary Judgment (“NES Motion for Summary Judgment”), ECF No. 35, GCH’s Motion for

Summary Judgment, ECF No. 36, and Plaintiff’s Motion to Strike Opinions and Hearsay in

Declaration of Steven Wexler, M.D. and All References Thereto in NES Oklahoma, Inc.’s

Summary Judgment Papers, and for the Imposition of Rule 37(c)(1) Sanctions (“Motion to Strike

Wexler Declaration”), ECF No. 41. For the reasons that follow, the summary judgment motions

are GRANTED, and Plaintiff’s motion to strike is DENIED.

BACKGROUND1

Plaintiff was an emergency-room physician and began practicing medicine in GCH’s

Emergency Department (“ED”) in 2007. On November 30, 2017, GCH entered into a contract

with NES—the Staffing Agreement—whereby NES would provide GCH with independent-

contractor physicians to work within GCH’s ED. That same day, Plaintiff signed a contract—

Plaintiff’s Physician Agreement—with NES to continue providing his services in GCH’s ED.2

Plaintiff’s Physician Agreement provided for a one-year term, which would renew automatically

upon each expiration of such term. The impetus for this case was Plaintiff’s permanent removal

from the GCH ED schedule and the termination of his Physician Agreement with NES, which

Plaintiff argues was the result of unlawful discrimination on the basis of national origin and age.

The parties tell conflicting stories about when and why Plaintiff was terminated, as well as

whether the reasons given for his termination were honest.

The parties at least agree on the identities of the relevant actors to this case. On the NES

side during the relevant time periods, Heather Mott was Account Manager, Dr. Thomas Singel

was Site Medical Director for the GCH ED, Dr. Steve Wexler was Chief Medical Officer and

Regional Medical Director, Thomas Brown was Regional Vice President, and Doris Kirkland

1 At summary judgment, a court must “constru[e] the record in the light most favorable to the nonmovant.” Payne v.

Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Unless otherwise noted, this factual background is drawn from the

statements of undisputed material facts in the summary judgment motions, see NES Mot. Summ. J. 5–28; GCH Mot.

Summ. J. 3–14, Plaintiff’s responses to those statements of undisputed material facts, see Resp. GCH Mot. Summ. J.

2–18, ECF No. 66; Resp. NES Mot. Summ. J. 2–53, ECF No. 67, Plaintiff’s identical statements of additional

material facts offered in response to each motion, see, e.g., Resp. NES Mot. Summ. J. 53–94, the replies thereto, see

GCH Reply Mot. Summ. J. 2–276, ECF No. 70; NES Reply Mot. Summ. J. 1–144, ECF No. 71, and exhibits

attached to those filings.

2 The counterparty to Plaintiff’s Physician Agreement was NES, see Pl.’s Physician Agreement, NES Mot. Summ. J.

Ex. 4, ECF No. 35-5, whereas the counterparty to the Staffing Agreement was NES Michigan, Inc, see Staffing

Agreement, GCH Mot. Summ. J. Ex. 2, ECF No. 36-2. Thomas Brown, a signatory to Plaintiff’s Physician

Agreement, see Pl.’s Physician Agreement 6, and a regional vice president of operations for NES during the relevant

time periods, see Brown Dep. 8:21–10:21, NES Mot. Summ. J. Ex. 18, ECF No. 35-19, testified in his deposition

that the counterparty to Plaintiff’s Physician Agreement should have been NES Michigan, Inc, see id. at 78:8–17.

No parties make any arguments which render this mistake material. The Court’s use of NES refers interchangeably

to NES Michigan, Inc or NES Oklahoma, Inc., as appropriate.

was a recruiter working to place physicians at GCH, though she stopped working on tasks related

to GCH around March 2018. On the GCH side, Cassie Cirimotich was Chief Quality Officer,

Pam Davis was Chief Nursing Officer, Dr. Frank Peppers was Chief of Staff, and James Flynn

was Chief Executive Officer.

I. Dr. Singel’s Role

The parties vigorously dispute the role that Dr. Singel played in Plaintiff’s ultimate

termination. Plaintiff described many instances of Dr. Singel making harmful comments towards

him and mistreating him. On multiple occasions, Dr. Singel: (1) told Plaintiff that he looked and

was dirty; (2) asked Plaintiff how many wives he had and made references to harems; (3) told

Plaintiff that his vegetarian food smelled bad; (4) told Plaintiff that he was too old and that he

should not work so many hours at his age; (5) confronted Plaintiff and stood in a threatening and

close posture, pointing his finger in Plaintiff’s face; and (6) threw Plaintiff’s food away. Plaintiff

also stated that Dr. Singel said to him that the doctors’ breakroom was not a place for him, that

he should not eat in the doctors’ breakroom nor wash his plates in that room, and that he made

too much money.3 Plaintiff testified that when he confronted Dr. Singel about this pattern of

behavior, Dr. Singel threatened to cut his shifts and to put him on night shifts. Plaintiff also

testified that Dr. Singel’s harassment began in February or March of 2018, but that he stopped

eating in the breakroom in May or June 2018, and that Dr. Singel stopped making these harmful

comments in July 2018 or earlier. Plaintiff noted that most of the time their schedules did not

overlap, such that they did not interact. Dr. Singel testified that he recommended that Plaintiff

3 Plaintiff also asserts that Dr. Singel told others that “if he tells [Plaintiff] to sit, [Plaintiff] will sit, and if he says

[Plaintiff] should stand, [Plaintiff] will stand.” Pl. Decl. ¶ 46k, Resp. NES Mot. Summ. J. Ex. A, ECF No. 67-1 at

1–36. In his deposition, Plaintiff testified that others told him that Dr. Singel said this—not that he personally

witnessed Dr. Singel making these remarks. Pl. Dep. 53:12–19, NES Mot. Summ. J. Ex. 2, ECF No. 35-3. This is

hearsay and therefore not admissible.

be terminated, and that he “probably” told Brown and Dr. Wexler of his opinion. Singel Dep.

63:12–22, Resp. NES Mot. Summ. J. Ex. M, ECF No. 67-13.

II. The Meetings

The parties agree that three meetings—September 23, October 23, and November 16 of

2018—were critical to the decision to terminate Plaintiff. Brown took handwritten notes during

these meetings, which he later typed up. Brown testified that he “put everything on one

document,” including the email from Cirimotich, “to send over to . . . [NES’s] attorney to show

him everything [he] had.” Brown Dep. 83:6–9, NES Mot. Summ. J. Ex. 18, ECF No. 35-19.

On September 23, 2018, Brown, Dr. Wexler, Flynn, and Davis met to discuss issues

related to Plaintiff. Flynn had called Brown to set up a meeting to discuss terminating Plaintiff.

Flynn and Davis “questioned [Plaintiff’s] effectiveness” and noted that he “had become

increasingly slow, needed help using the EMR system and [was] generally difficult to deal with.”

Brown’s Notes 5, NES Mot. Summ. J. Ex. 19, ECF No. 35-20. Flynn and Davis also questioned

his “medical judgment”—Brown circled this phrase and wrote and underlined the word “wow”

next to it. Id. at 2. Dr. Wexler asked if there were clinical concerns related to Plaintiff, and

Davis responded that those would be investigated. Flynn wanted Plaintiff to be treated with

respect. The GCH side wanted the decision to remove Plaintiff to come from NES, but the NES

side explained that Plaintiff’s Physician Agreement allowed GCH to request his removal from

the GCH ED schedule. Specifically, they discussed how both NES and Plaintiff were

empowered to terminate Plaintiff’s Physician Agreement upon ninety-days’ notice, but NES

could circumvent this ninety-day period and terminate Plaintiff’s Physician Agreement

immediately if NES was “notified either orally or in writing by an administrative employee or by

a licensed physician at a medical institution in which the Physician [wa]s providing medical

services pursuant to [Plaintiff’s Physician Agreement] that the service of the Physician [wa]s

unsatisfactory to the medical institution.” Pl.’s Physician Agreement ¶ 1, NES Mot. Summ. J.

Ex. 4, ECF No. 35-5; see also Brown Dep. 96:6–9 (testifying that he read this language from

Plaintiff’s Physician Agreement in this meeting). They agreed to a follow-up meeting. Brown

made a note to talk to Dr. Wexler after the call and wrote the word “Crazy!!” next to that note.

Brown’s Notes 2.

On October 23, Brown, Dr. Wexler, Flynn, Davis, and Cirimotich met to discuss issues

related to Plaintiff. They discussed the language in Plaintiff’s Physician Agreement and the

Staffing Agreement concerning the removal of providers. Cirimotich discussed clinical concerns

that she had regarding Plaintiff, which Wexler requested that she put in writing. Flynn reiterated

that Plaintiff was to be treated with respect. Again, Brown wrote and underlined the word

“crazy.” Id. at 3. Dr. Wexler asked about timeline, and Davis said that Plaintiff should be

removed quickly and that it should not drag out past the end of the year. Flynn stated that he

wanted to review the relevant contract language and that he would provide a letter requesting

that Plaintiff be removed from the GCH ED schedule.

On November 16, Brown, Dr. Wexler, Flynn, Davis, and Cirimotich met a final time.

Flynn stated that he agreed with the contract language and would be providing NES with a letter

requesting that Plaintiff be permanently removed from the GCH ED schedule. Flynn reiterated

the need to treat Plaintiff with respect. The attendees discussed the language that would be used

in the letter requesting his removal. Brown stated that he would wait to receive the official

request in writing from GCH before removing Plaintiff. Flynn sent the letter to Brown on

November 20, which stated that Flynn understood that NES’s “agreement with the providers

allows removing [a provider] from the schedule if there are concerns by the facility and if

requested by the facility,” and asked that Brown “accept this communication as a request to

remove [Plaintiff] from the staffing schedule of [his] Emergency Department.” Nov. 20, 2018

Letter from James Flynn to Thomas Brown (“November 20 Letter”), NES Mot. Summ. J. Ex. 26,

ECF No. 35-27. In a subsequent letter to Plaintiff informing him that NES was concluding its

relationship with him, Brown stated that “[a] number of performance related issues and

scheduling challenges have led to [GCH] requesting you be removed from the schedule effective

December 31, 2018.” Dec. 18, 2018 Letter from Thomas Brown to Veerasikku Bommiasamy

(“December 18 Letter”), NES Mot. Summ. J. Ex. 27, ECF No. 35-28.

III. Scheduling Concerns

The termination letter from NES cited scheduling concerns as a reason for Plaintiff’s

termination. See id. The physician schedules for the GCH ED had two shifts—a day shift of

7:00 a.m. to 7:00 p.m., and a night shift of 7:00 p.m. to 7:00 a.m. Schedules for the GCH ED

were made by NES and provided to physicians 60 to 90 days in advance. Physicians could swap

shifts amongst themselves. After the Staffing Agreement between NES and GCH was in place,

the schedules were initially created by Kirkland, but the last schedule she created was for March

2018, at which point Mott made the schedules. Mott described her process for making schedules

as first soliciting availability from physicians, then inserting Dr. Singel into the schedule due to

his administrative responsibilities and contractual full-time status, then inserting other physicians

with “an express contractual obligation to work a ‘full-time’ number of shifts,” into the schedule,

and finally inserting part-time physicians into the schedule. Mott Decl. ¶ 17–20, NES Mot.

Summ. J. Ex. 5, ECF No. 35-6. Plaintiff’s Physician Agreement did not specify whether he was

full-time or part-time.4 In 2018, Plaintiff was unavailable at least from May 25 to June 8,

4 Plaintiff cites an email from Kirkland describing Plaintiff as “our full timer.” See Nov. 30, 2017 Email from Doris

Kirkland to Veerasikku Bommiasamy, Resp. NES Mot. Summ. J. Ex. E, ECF No. 67-5. The copy of this email that

November 12 to November 16, November 25 to November 30, and December 1 to December

14.5 However, Plaintiff was frequently willing to cover shifts for other physicians, as well as to

work holidays and weekends.

Plaintiff had requested that NES schedule him only for day shifts in blocks of four to five

shifts at a time—totaling approximately twelve shifts per month—because he did not drive and

commuted “300 miles round trip” to work his shifts at GCH. Mar. 30, 2018 Email from

Veerasikku Bommiasamy to Heather Mott, NES Mot. Summ. J. Ex. 11, ECF No. 35-12. In

contemporaneous statements about the GCH ED schedules, Plaintiff stated that he had a verbal

agreement that he would only be scheduled for day shifts. See Mar. 26, 2018 Email from

Veerasikku Bommiasamy to Heather Mott, NES Mot. Summ. J. Ex. 9, ECF No. 35-10 (“As we

discussed in the past with Doris and Tom ( because of my age 71 years), we all agreed that I’ll be

given only day shifts .”). Mott avers that she was unaware of any such agreement. Plaintiff was

scheduled to work five-hour portions of the night shifts for April 5 and April 6 of 2018—

otherwise, Plaintiff did not work night shifts. Plaintiff received notice of his finalized schedules

for November 2018 and December 2018 by November 5, 2018, and by November 15, 2018, he

had notice that he had been removed from all of his shifts in January 2019.

The parties dispute the extent to which Dr. Singel was also involved in creating the

schedules. According to NES, Dr. Singel was not involved in making the schedules—only Mott

Plaintiff attached to his filing was printed on May 26, 2023. See id. Discovery in this case closed on March 31,

2023. See Oct. 5, 2022 Text Order. Both NES and GCH state that this email was not produced in discovery and

argue that it should be disregarded. See, e.g., GCH Reply Mot. Summ. J. 121; NES Reply Mot. Summ. J. 48. A

party may not rely on information which was not properly produced to supply evidence on a motion unless such

“failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Plaintiff offers no explanation for why

this email was not produced before the close of discovery, so the Court does not consider it.

5 Plaintiff again relies on previously undisclosed text messages to support that he cancelled his scheduled trip from

May 25 to June 8 and informed Mott that he was newly available on those dates on April 27. See Text Messages

from Veerasikku Bommiasamy to Heather Mott, Resp. NES Mot. Summ. J. Ex. F, ECF No. 67-6; GCH Reply Mot.

Summ. J. 125; NES Reply Mot. Summ. J. 54. The Court does not consider these untimely text messages.

or Kirkland made them. See, e.g., Mott Decl. ¶ 7 (“I do not recall Dr. Singel having any role in

actually making the GCH ED physician schedules in May 2018 through January 2019. I made

those schedules.”). Conversely, GCH represented to the Equal Employment Opportunity

Commission (“EEOC”) that “Dr. Singel was . . . the individual responsible for coordinating

[Plaintiff]’s shifts in the [ED].” Dec. 6, 2019 Letter from Rachel Wright to Julie Bretz, US

EEOC 2, Resp. NES Mot. Summ. J. Ex. I, ECF No. 67-9 at 2–3. Plaintiff highlights that Dr.

Singel’s Physician Agreement made him responsible “responsible for administering overall

performance of the Company.”6 Resp. NES Mot. Summ. J. 16, ECF No. 67 (quoting Singel

Physician Agreement 9, NES Mot. Summ. J. Ex. 12, ECF No. 35-13). In response to Plaintiff’s

complaints about being scheduled for the night shifts on April 5 and 6, Mott stated that she

talked with Dr. Singel about that schedule. See Mar. 27, 2018 Email from Heather Mott to

Veerasikku Bommiasamy, NES Mot. Summ. J. Ex. 9, ECF No. 35-10 (“I have talked with Dr.

Singel, and I will certainly try to find alternate coverage for those two evenings, but worst case,

we will need you to work them.”). Davis also testified that she “believe[d] Dr. Singel was in

charge of the schedule.” Davis Dep. 95:16–18, NES Mot. Summ. J. Ex. 22, ECF No. 35-23.

IV. Performance Concerns

Neither the November 20 Letter nor the December 18 Letter are specific about the

performance concerns upon which Plaintiff’s ultimate termination was based. According to

Brown’s notes from the September 23, 2018 meeting where Plaintiff’s termination was first

discussed, Davis and Flynn identified Plaintiff’s clinical judgment, effectiveness, and ability to

use the EMR system. Brown’s notes from the second meeting on October 23 indicate that

Cirimotich had clinical concerns as well but do not substantiate what those concerns were. Other

6 Dr. Singel’s Physician Agreement does not define “Company,” but does define “Corporation” as “NES Medical

Services of Michigan.” Singel Physician Agreement 9.

evidence sheds light on the various clinical concerns that were contemporaneously identified.

Dr. Wexler’s declaration highlights five things in particular: (1) the endotracheal (“ET”) tube

incident; (2) the stress test incident; (3) the first code situation (referring to a situation where a

patient is near death); (4) the second code situation; and (5) the EMR system issues.

The ET tube incident was documented in an email from Dr. Singel written on October 24,

2018—a day after the second meeting where Plaintiff’s termination was discussed. See Oct. 24,

2018 Email from Thomas Singel to Veerasikku Bommiasamy, NES Mot. Summ. J. Ex. 23, ECF

No. 35-24. Dr. Singel’s email was addressed to Plaintiff, Dr. Wexler, and Brown, and it

informed Plaintiff that Dr. Singel had been informed by “[n]ursing administration” that Plaintiff

“admitted a patient to the floor, at the end of life, with comfort measures only,” and that “[t]he

problem was that [Plaintiff] left the [ET] tube in the patient, after disconnecting the ventilator.”

Id. Dr. Wexler avers that, in his opinion, “[l]eaving an ET tube in a patient after the ventilator is

discontinued is inexplicable and inexcusable,” and was “an act of egregious incompetence.”

Wexler Decl. ¶ 13, NES Mot. Summ. J. Ex. 20, ECF No. 35-21. Cirimotich described this

incident as “significant” and “traumatizing for the [patient’s] family.” Cirimotich Dep. 74:12–

21, NES Mot. Summ. J. Ex. 21, ECF No. 35-22.

The stress test incident was described in that same October 24, 2018, email, and Dr.

Singel noted that “[c]ardiac rehab complained that [Plaintiff] scheduled a stress test on a patient

that could not ambulate well enough to come close to completing it.” Oct. 24, 2018 Email from

Thomas Singel to Veerasikku Bommiasamy. Dr. Wexler avers that he “considered [Plaintiff’s]

decision to give a treadmill stress test to a patient who could not complete the test a signal that

[Plaintiff] lacked the ability to understand and comprehend the situation at hand—which was

unacceptable for an ED physician.” Wexler Decl. ¶ 14. Cirimotich described the stress test

incident as “not a significant issue.” Cirimotich Dep. 73:23–74:11.

The two code incidents were identified in an email from Cirimotich, sent on October 31,

2018, one week after the second meeting in which Dr. Wexler asked her to document her clinical

concerns. In the first code situation, Cirimotich observed an “overall lack of leadership by

[Plaintiff],” specifically noting that: (1) the patient was not sedated before being intubated; (2) a

“shockable rhythm” was not being addressed in a timely manner and when this was brought to

Plaintiff’s attention he told staff to “give him a few minutes to figure it out;” (3) and Plaintiff had

to redraw the patient’s blood because he did not utilize heparinized tubes. Oct. 31, 2018 Email

from Cassie Cirimotich to Thomas Brown, NES Mot. Summ. J. Ex. 25, ECF No. 35-26. Dr.

Wexler avers that he thought Plaintiff’s “response to the first code situation was extremely

troubling,” and that Plaintiff’s “need for a few minutes to figure out a situation in which a

patient’s death was imminent [was] appalling.” Wexler Decl. ¶ 17.

In the second code situation, Cirimotich observed Plaintiff “not giving clear direction to

staff, mumbling to himself, pacing, and staff having to interrupt him to clarify orders and

dosages,” as well as “leav[ing] the room twice.” Id. Dr. Wexler avers that he thought that

Plaintiff’s “actions of leaving the room twice while a patient was dying, and failing to provide

clear direction to the ED team, were inexcusable.” Wexler Decl. ¶ 18. Again, Cirimotich

thought this incident demonstrated insufficient leadership by Plaintiff. Cirimotich Dep. 46:1–20.

Cirimotich testified that she thought that these code issues were “very, very concerning

incidents,” and would “be a reason to not have a provider.” Id. at 130:20–24.

As to the EMR issues, Cirimotich also recalled Plaintiff having “great difficulty” with

that system. Id. at 135:12–14. When asked for the reasons “that anyone gave for removing

[Plaintiff] from the schedule” in her deposition, Davis pointed to the EMR system. Davis Dep.

91:12–22 (“[Plaintiff] struggled with the electronic health record and with, you know, fluidity

with that without assistance and so that’s what bubbled up to me because the nursing staff were

the ones that would have to do that assistance and it pulled them out of their job duties.”).

Cirimotich recalled other complaints about Plaintiff’s clinical performance. She testified

that patients complained about how Plaintiff treated pain, specifically that “he had the most

complaints about not treating pain[,] more than any other physician in the [ED].” Cirimotich

Dep. 34:21–36:23. She also pointed to complaints from other physicians about Plaintiff’s

communications about their patients whom he treated, such as “transfer[ring] the patient to

Peoria 45 minutes away without consulting their primary care provider or their specialist here.”

Id. at 39:18–40:9. She also testified that Plaintiff would walk “around the block” on breaks

during his shifts in the ED without a pager and that it was difficult to explain to Plaintiff the

importance of properly documenting certain quality measures which were reported to

government entities. Id. at 54:4–21.

Other documentary evidence captured some potential concerns related to Plaintiff’s

performance. GCH was subject to certain federal standards and requirements, including the

standards imposed by the Center for Medicare and Medicaid Services (“CMS”). Variances from

those standards could arise from improper care or a physician’s failure to properly document

care. Administrative employees of GCH would review patients’ medical charts to determine

whether the charts contained any variances from statistical and other standards set by CMS.

Deviations from those standards were discussed with physicians. For example, Cheryl Hanson,

an administrative employee of GCH reporting to Cirimotich, informed Plaintiff that “[a] variance

occurred when fluid resuscitation was not given to the target volume of 2,041 ml. based on body

weight” in one of his sepsis cases. Dec. 17, 2018 Letter from Cheryl Hanson to Veerasikku

Bommiasamy, NES Mot. Summ. J. Ex. 30, ECF No. 35-31.

GCH had a peer-review process, wherein physicians would be asked to review the care

that another physician provided considering the applicable CMS standards and to conclude

whether they agreed with the care provided by that physician. A peer review committee, such as

the Medical Care Review Committee, would assign a score from 1 to 5, with a score of 3

denoting “treatment inappropriate, but adverse impact on the patient was minor or minimal,

temporary or permanent harm.” See, e.g., Dec. 17, 2018 Letter from Cassie Ciromitich to

Veerasikku Bommiasamy, NES Mot. Summ. J. Ex. 29, ECF No. 35-30. Variances were not

always peer reviewed. Dr. Singel was on the Medical Care Review Committee. There is no

evidence that the two code situations, ET tube incident, and stress test incident described above

were referred for peer review.

However, at least one incident involving Plaintiff was referred for peer review. See GCH

Interrog. Resp. 7–10, GCH Mot. Summ. J. Ex. 1, ECF No. 36-1 (describing Quality

Improvement Medical Staff Peer review forms for Plaintiff for 2017 and 2018). Medical record

number 424-051 was potentially a ST-elevation myocardial infarction (“STEMI”) case, meaning

an indication of a type of heart attack. Jenna Johnson, GCH’s chest pain coordinator within

GCH’s quality department who reported to Cirimotich, referred the case to peer review.

Cirimotich testified that the patient’s chart indicated “a pretty big delay in . . . care and

treatment.” Cirimotich Dep. 81:13–21. The peer review focused on “the EKG, [Plaintiff’s]

interpretation and that a ‘Stemi alert’ was not called and that patient was not transferred within

the 60 minutes timeframe.” Oct. 24, 2018 Email from Cassie Cirimotich to Veerasikku

Bommiasamy, NES Mot. Summ. J. Ex. 28, ECF No. 35-29. The peer review resulted in a score

of 3 and the case was referred to GCH’s Medical Care Review Committee.

Before the Medical Care Review Committee met to discuss the STEMI case, Plaintiff

sent a letter to Cirimotich expressing concern that Dr. Singel would be on that committee

because Plaintiff “had some ongoing disputes with Dr. Singel regarding [his] scheduling and

contract rights with NES” and Dr. Singel had “displayed some personal animus toward [him] on

a number of issues which [he did not] believe [were] pertinent to medical staff review of th[e]

matter.” Nov. 2, 2018 Letter from Veerasikku Bommiasamy to Cassie Cirimotich, Resp. NES

Mot. Summ. J. Ex. Q, ECF No. 67-17. Cirimotich testified that she was not concerned about Dr.

Singel’s presence on the committee because he would be only one of six to eight members of the

committee and would not chair the committee. The Medical Care Review Committee

recommended that Plaintiff’s “next five (5) cardiac cases be peer reviewed with focus on

appropriate care, treatment, and documentation.” Dec. 17, 2018 Letter from Cassie Cirimotich to

Veerasikku Bommiasamy.

V. Reasons for Plaintiff’s Termination

Different sides tell differing stories about the exact reasons for Plaintiff’s termination—

scheduling, performance, or both. NES personnel focus on the performance issues. Brown’s

notes on the three meetings do not make any mention of scheduling difficulties. Instead, the

notes describe Plaintiff’s issues using the EMR system, his medical judgment, that Plaintiff “was

generally difficult to deal with,” and other clinical concerns which Dr. Wexler requested that

Cirimotich put in writing. Brown’s Notes 5. Dr. Wexler avers that Plaintiff “had been with the

hospital for many years and was well-liked, but the nurses and quality employees knew that [he]

was not a high-quality physician,” and that nurses had “to cover for [him] in critical cases.”

Wexler Decl. ¶ 8. Dr. Wexler’s “impression was that GCH management knew that [Plaintiff]

was not qualified to work in the GCH ED, but management hoped he would decide that for

himself so that the hospital would not have to take action to remove [him].” Id.

Dr. Wexler also avers that he thought that “Flynn, Davis, and Cirimotich wanted

[Plaintiff] removed from the GCH ED schedule for performance reasons,” because those

“performance deficiencies were being discussed at and around the time Davis said [in the second

meeting on October 23, 2018] that [Plaintiff] should be removed from the schedule by the end of

the year 2018.” Id. ¶ 20; see also id. (“I had every reason to believe that GCH wanted [Plaintiff]

removed from the GCH ED schedule for those performance reasons.”). Similarly, Brown avers

that he “believed that GCH wanted NES to remove [Plaintiff] from the GCH ED schedule

because of his performance deficiencies—and [he] believed that to be Flynn’s motivation for

sending the [November 20 L]etter asking for [Plaintiff]’s removal.” Brown Decl. ¶ 17, NES

Mot. Summ. J. Ex. 8, ECF No. 35-9. They both aver that GCH started the discussions that led to

Plaintiff’s termination, and that they had to accept GCH’s decision to permanently remove him

from the GCH ED schedule. See, e.g., Wexler Decl. ¶¶ 7, 22 (“[A]s a practical business matter,

NES has to honor a hospital’s request to remove a physician from the hospital.”). They also

discuss scheduling issues in their declarations, but Dr. Wexler makes “clear[ that Plaintiff]’s

performance deficiencies were, on their own, sufficient reason to terminate his Physician

Agreement with NES.” Id. ¶ 27.

Conversely, GCH focuses on the schedule. Flynn testified that the November 20 Letter

was “written to NES to remove [Plaintiff] from the schedule. . . because [Plaintiff] couldn’t work

the schedule that [NES] needed.” Flynn Dep. 19:3–6, NES Mot. Summ. J. Ex. 24, ECF No. 35-

25. Before the EEOC, GCH stated that it asked NES to stop scheduling Plaintiff in GCH’s ED

because of GCH’s “legitimate concerns over physician productivity and patient safety caused by

[Plaintiff]’s scheduling demands.” Dec. 6, 2019 Letter from Rachel Wright to Julie Bretz, US

EEOC 2. That letter also claimed that “[o]nce [Plaintiff]’s assignment [via NES] at [GCH]

started, it quickly became apparent that his scheduling demands were a bad fit for the [ED],” and

that the GCH ED “had a longstanding practice for daytime providers to work no more than three

consecutive 12-hour shifts.” Id. GCH also denied that it decided to terminate Plaintiff’s

Physician Agreement because it did not “have that authority.” Id.

VI. Procedural History

On September 12, 2019, Plaintiff filed administrative charges against both NES and

GCH, alleging they discriminated against him on the basis of age and national origin. He filed

his complaint on January 4, 2021. See generally Compl., ECF No. 1. He alleges that NES and

GCH discriminated against him by subjecting him to harassment, reducing his shifts, and

terminating him. See, e.g., id. ¶¶ 17–19. NES moves for summary judgment on all of Plaintiff’s

claims against it, arguing that nearly all of Plaintiff’s claims are time-barred7 and there were

legitimate, non-discriminatory reasons for all the alleged adverse actions. NES Mot. Summ. J.

3–5. GCH also moves for summary judgment on all claims against it, arguing that there were

legitimate non-discriminatory reasons for all of its decisions.8 GCH Mot. Summ. J. 2. GCH

7 NES also argues that “to the extent Plaintiff’s Complaint is construed to include claims of unlawful retaliation,

such claims fail because Plaintiff failed to exhaust administrative remedies by including allegations of retaliation

within the scope of a timely-filed [administrative] charge.” NES Mot. Summ. J. 5. During his deposition, Plaintiff

testified that he believed Defendants retaliated against him and his counsel indicated an intention to amend the

complaint to include a retaliation claim. Pl. Dep. 24:23–26:15. But Plaintiff never amended his complaint to

include a retaliation claim. And he admits that he “does not allege a retaliation claim in the Complaint . . . [so] no

such claim is before this Court.” Resp. GCH Mot. Summ. J. 8, ECF No. 66.

8 GCH also argues that Plaintiff was an independent contractor, not its employee. GCH Mot. Summ. J. 2. To

maintain an action under either the ADEA or Title VII, a plaintiff must point to the existence of an employment

relationship between himself and the defendant—status as an independent contractor is insufficient. See Knight v.

United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir. 1991) (Title VII); Hayden v. La-Z-Boy Chair Co., 9

F.3d 617, 619 (7th Cir. 1993) (ADEA). The Court need not resolve this dispute as it finds that summary judgment

in favor of GCH is appropriate on other grounds, so it assumes for purposes of this order that Plaintiff was an

employee of GCH.

joined in NES’s arguments that Plaintiff’s claims are time-barred. Joinder 1, ECF No. 37.

Plaintiff moves to strike parts of a declaration NES submitted in support of its summary

judgment motion. See generally Mot. Strike Wexler Decl.

DISCUSSION

I. Legal Standard

Summary judgment is proper when “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). To preclude summary judgment, the nonmovant must “make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court

must construe the record in the light most favorable to the nonmovant, Payne v. Pauley, 337 F.3d

767, 770 (7th Cir. 2003), “resolving all factual disputes and drawing all reasonable inferences in

favor of [the nonmovant],” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017). The

nonmovant “is not entitled to the benefit of inferences that are supported by only speculation or

conjecture.” Nichols v. Mich. City Plant Plan. Dep’t, 755 F.3d 594, 599 (7th Cir. 2014)

(quotation marks omitted). “[T]he mere existence of some alleged factual dispute is insufficient

to defeat a motion for summary judgment,” Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015)

(quotation marks omitted), as “there must be evidence on which the jury could reasonably find

for the [nonmovant],” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

II. Analysis

A. Motion to Strike

Plaintiff argues that the Court should strike Dr. Wexler’s declaration. See generally Mot.

Strike Wexler Decl. Dr. Wexler’s declaration contains his opinions as NES’s Chief Medical

Officer and Regional Medical Director about the various concerns about Plaintiff’s job

performance, see Wexler Decl. ¶¶ 2, 12–14, 17–18, 23, as well as his legal understanding of the

contract between NES and GCH, see id. ¶¶ 10, 22. Plaintiff argues that these portions of Dr.

Wexler’s declaration constitute expert opinion testimony, which must be stricken because (1)

NES did not disclose Dr. Wexler as an expert witness and failed to comply with the Federal

Rules of Civil Procedure concerning expert witnesses, Mot. Strike Wexler Decl. 4–6; (2) Dr.

Wexler’s declaration lacks sufficient foundation and is based on inadmissible hearsay, not

personal knowledge, id. at 6–10, 11–12; and (3) Dr. Wexler’s purported legal opinions “lack any

disclosure, lack any support from the declarant’s experience or education, and lack any fact

basis,” id. at 9.

NES counters that Dr. Wexler’s declaration is “is directed at the reasons why he found

Plaintiff’s performance unacceptable—not issues of medical causation or prognosis or even

failure to meet an objective professional standard,” and therefore does not constitute expert

testimony. NES Resp. Mot. Strike Wexler Decl. 5–7, ECF No. 47. Further, NES argues that Dr.

Wexler’s declaration does not suffer from any foundation or hearsay issues because the

statements are not offered to prove the truth of the matters asserted and were based on personal

knowledge he gained as a decisionmaker for NES. Id. at 7–12. Finally, NES maintains that Dr.

Wexler’s testimony about the contract between NES and GCH does not relate to any ultimate

legal conclusion regarding contract issues like the materiality of a breach, but instead his

admissible understanding of the contract while participating in employment decisions as a

decisionmaker for NES. Id. at 12–13.

The employment-law context of the instant case is critical as it informs the purpose for

which Dr. Wexler’s testimony is offered. Plaintiff cites two cases to support his position that Dr.

Wexler’s declaration contains expert testimony, and both cases are 42 U.S.C. § 1983 cases

analyzing testimony from doctors concerning the effect of gunshot wounds and the use of a

Taser respectively. See Mot. Strike Wexler Decl. 5 (citing Banister v. Burton, 636 F.3d 828, 832

(7th Cir. 2011) (gunshot), and Moriconi v. Koester, No. 11-cv-3022, 2014 WL 3704797, at *3

(C.D. Ill. July 25, 2014) (Taser)). However, Dr. Wexler’s testimony is not being offered to

resolve questions of medical causation or any other material issue which would require expert

qualification. Instead, his testimony is offered to show what he believed at the time the decision

to terminate Plaintiff was made. See Khungar v. Access Cmty. Health Network, 985 F.3d 565,

574 (7th Cir. 2021) (“The question is not whether the [employer’s performance] ratings were

right but whether the employer’s description of its reasons is honest.” (alteration in original)

(quotation marks omitted)).

For example, Dr. Wexler describes Plaintiff’s failure to remove the ET tube from a

patient after taking that patient off a ventilator as an “act of torture.” Wexler Decl. ¶ 13.

Plaintiff describes this characterization as “inflammatory and bizarre,” and argues that his

decision to not remove the ET tube was “a commonplace event in medical practice which

medical literature supports as appropriate patient care.” Mot. Strike Wexler Decl. 8, 10.

Plaintiff’s argument misses the mark—Dr. Wexler’s testimony is not offered to establish whether

Plaintiff’s actions were appropriate patient care, but rather to establish what Wexler thought of

Plaintiff’s actions as a decisionmaker. See Wexler Decl. ¶ 13 (“In my opinion, that single

incident, by itself, justified the removal of [Plaintiff] from the GCH ED schedule and the

termination of his contract with NES. . . . Learning that [Plaintiff] did that to a patient made me

upset.”). Dr. Wexler did not need to be qualified as an expert to provide testimony concerning

his contemporaneous beliefs, such that Plaintiff’s argument that Dr. Wexler based his testimony

on “extremely insufficient facts or data” is irrelevant. See Mot. Strike Wexler Decl. 7 (citing

Fed. R. Evid. 702 (requiring that expert testimony be “based on sufficient facts or data”)).9

Dr. Wexler’s declaration has a sufficient foundation. It is derived from his

“participat[ion] in discussions that ultimately led to the removal of [Plaintiff] from the ED

schedule at GCH and the termination of his independent contractor Physician Agreement with

NES,” as well as his seven years of experience with NES. Wexler Decl. ¶¶ 2, 6. Dr. Wexler did

not need to be present for the incidents which allegedly led to Plaintiff’s termination to reach an

employment decision based on those incidents, and he could rely on reports from others to form

an understanding or impression of Plaintiff’s conduct. See Uhlir v. City of Wheaton, No. 18 C

3215, 2019 WL 6827642, at *6 (N.D. Ill. Dec. 9, 2019) (“[E]mployers are not required to base

employment decisions on evidence that would satisfy the Federal Rules of Evidence.”); Krnich v.

FPC Corp., No. 19-cv-5358, 2021 WL 3930306, at *3 (N.D. Ill. Sept. 2, 2021) (“Employment

can provide the foundation for facts and perceptions relating to that employment.”).

Nor does Dr. Wexler’s declaration suffer from hearsay issues. As a fact witness, “[Dr.

Wexler] [can] testify about his state of mind, including his motivations for his decisions.” See

Krnich, 2021 WL 3930306, at *4; see also Khungar, 985 F.3d at 575 (“The complaints here are

not hearsay because they are not offered to show that [the employee] in fact engaged in the

conduct complained of, but to show [the decisionmaker]’s state of mind when he made his

recommendation.” (quotation marks omitted)); Noone v. Presence Hosps. PRV, 149 F. Supp. 3d

904, 909 (N.D. Ill. 2015) (collecting cases concerning the use of evidence for the non-hearsay

9 Plaintiff’s arguments concerning the insufficiency of Dr. Wexler’s investigation of this incident and other concerns

raised about Plaintiff go to the merits of his discrimination claim—specifically whether Defendants’ proffered

reasons for Plaintiff’s termination were pretextual—and the probative value of Wexler’s declaration, not its

admissibility or character as expert testimony. Cf. Khungar, 985 F.3d at 576 (discussing the sufficiency of an

employer’s investigation into complaints about an employee in the context of pretext).

purpose of showing a statement’s effect on a decisionmaker). Plaintiff’s arguments that Dr.

Wexler’s declaration misstates the exact details of the ET tube incident, stress test incident, and

two code situations, see Mot. Strike Wexler Decl. 9, address the probative value of Wexler’s

declaration, not its admissibility or character as expert testimony.

Finally, Dr. Wexler’s testimony about his understanding of the contract between NES and

GCH does not constitute an impermissible legal opinion. That testimony instead relates to his

belief about the options NES had under the contract, a belief which was formed—either correctly

or incorrectly—in the course of his employment with NES. Cf. United States v. Agee, No. 1:19-

cr-00103-TWP-DLP, 2021 WL 2894784, at *2 (S.D. Ind. July 9, 2021) (allowing lay opinion

testimony from “four [Small Business Administration (“SBA”)] employees . . . about the rules,

regulations, and standard operating procedures governing the SBA programs” because “the SBA

witnesses acquired their knowledge of SBA rules and practices during the course of their

employment with the SBA, and their testimony will be limited to their personal knowledge of

SBA rules and practices”). In sum, Dr. Wexler’s declaration is not expert testimony or otherwise

inadmissible, and Plaintiff’s motion to strike is DENIED.10

B. Administrative Exhaustion

For non-federal employees,11 a prerequisite to commencing a suit under either the ADEA

or Title VII is filing “a charge with the EEOC or equivalent state agency.” See Wrolstad v. Cuna

Mut. Ins. Soc’y, 911 F.3d 450, 456 (7th Cir. 2018) (ADEA); Begolli v. Home Depot U.S.A., Inc.,

10 Plaintiff additionally seeks to strike “every reference to the [Wexler] declaration throughout NES’s summary

judgment papers filed in this matter,” as well the portions of Brown’s declaration which refer to Wexler’s

declaration. Mot. Strike Wexler Decl. 2, 11–12. Because the Court concludes there is no basis to strike Wexler’s

declaration itself, the Court does not strike other filings which are allegedly “infected throughout with Dr. Wexler’s

opinions.” See id. at 10.

11 A federal employee need not “seek relief from his employing agency or the EEOC” and may instead “decide to

present the merits of his claim to a federal court in the first instance.” Stevens v. Dep’t of Treasury, 500 U.S. 1, 5–6

(1991) (citing 29 U.S.C. § 633a).

701 F.3d 1158, 1159 (7th Cir. 2012) (Title VII); see also Trujillo v. Rockledge Furniture LLC,

926 F.3d 395, 399–400 & n.2 (7th Cir. 2019) (describing differences between the administrative

exhaustion requirements for the ADEA and Title VII). The administrative charge is meant to

“give[] the employer notice of the employee’s grievances,” so the civil action that stems from the

administrative charge “must, at a minimum, describe the same conduct and implicate the same

individuals.” Huri v. Off. of the Chief Judge of the Cir. Ct. of Cook Cnty., 804 F.3d 826, 831–32

(7th Cir. 2015). However, “[c]ourts review the scope of an EEOC charge liberally,” and “[t]o be

cognizable in federal court, a [employment discrimination] claim must simply be like or

reasonably related to the allegations of the charge and growing out of such allegations.” Id. at

831 (quotation marks omitted) (so holding in a Title VII case); see also Reynolds v. Tangherlini,

737 F.3d 1093, 1101–02 (7th Cir. 2013) (applying this standard to ADEA claims).

Additionally, there are time limits for filing an administrative charge. “In a State that has

an entity with the authority to grant or seek relief with respect to the alleged unlawful practice,

an employee who initially files a grievance with that agency must file the charge with the EEOC

within 300 days of the employment practice . . . .” Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 109 (2002) (citing 42 U.S.C. § 2000e-5(e)(1)). Illinois is such a “deferral state,” see,

e.g., Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 839 (7th Cir. 2014), such that a

plaintiff’s administrative charge before the EEOC “must be filed within 300 days of the unlawful

[employment] practice,” provided that the charge is also filed with the relevant state agency,

Wrolstad, 911 F.3d at 456; Begolli, 701 F.3d at 1159; see also Gilardi v. Schroeder, 833 F.2d

1226, 1229–31 (7th Cir. 1987) (describing the operation of this rule for deferral states under both

Title VII and the ADEA).

Deciding when an “unlawful employment practice” has “occurred” depends on whether

the claim involves “discrete discriminatory acts [or] hostile work environment claims.” Morgan,

536 U.S. at 110. “[T]ermination, failure to promote, denial of transfer, or refusal to hire” are

discrete discriminatory acts, id. at 114, as are “[r]eassignment[s] of duties and suspensions,”

Bass, 746 F.3d at 840, and each paycheck, Groesch v. City of Springfield, 635 F.3d 1020, 1027

(7th Cir. 2011). For discrete acts, “the clock for th[e] limitations period commences when an

employer communicates an adverse employment decision to the employee, not when the full

consequences of that action are felt.” Wrolstad, 911 F.3d at 456 (quotation marks omitted). “To

start the limitations clock, however, the employer’s decision must be final, ultimate, [and] non-

tentative, and the employee must receive unequivocal notice of it.” Id. (alteration in original)

(quotation marks omitted). “[D]iscrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113.

Conversely, “[a] hostile work environment claim is administratively exhausted if ‘all acts which

constitute the claim are part of the same unlawful employment practice and at least one act falls

within the time period.’” Hambrick v. Kijakazi, 79 F.4th 835, 841 (7th Cir. 2023) (quoting

Morgan, 536 U.S. at 122).

Plaintiff’s administrative charges were filed with the Illinois Department of Human

Rights and EEOC against NES and GCH on September 12, 2019. See NES Charge of

Discrimination, NES Mot. Summ. J. Ex. 3, ECF No. 35-4; GCH Charge of Discrimination, GCH

Mot. Summ. J. Ex. 19, ECF No. 36-19. Thus, the operative date for the limitations period is 300

days prior—November 16, 2018. See, e.g., Wrolstad, 911 F.3d at 456. Defendants argue that

Plaintiff’s claims that the number of shifts he was scheduled for was reduced, that he was

removed from the GCH ED schedule, and that he was subjected to a hostile work environment

are time-barred and otherwise unexhausted. NES Mot. Summ. J. 30–33.

1. Number of Shifts

NES argues that Plaintiff’s claim that he was assigned to fewer shifts at the end of 2018

is administratively barred as untimely and not within the scope of Plaintiff’s administrative

charges. Id. at 30–31. Initial monthly schedules for shifts were provided to physicians 60 to 90

days in advance. Id. ¶ 27. Three months are at issue: November 2018, December 2018, and

January 2019. Plaintiff received notice of his scheduled shifts for November 2018 and

December 2018 by October 11, 2018, and those schedules did not change after November 5,

2018, and October 24, 2018, respectively. Id. ¶¶ 29–30. Similarly, as of November 15, 2018,

Plaintiff had received notice that he had been removed from all his previously scheduled shifts in

January 2019. Id. ¶ 37; see also Schedule Change Documentation, NES Mot. Summ. J. Ex. 14,

ECF No. 35-15 (showing that by November 14, 2018, Plaintiff had reviewed the automated

notifications which informed him that he had been removed from the January 2019 schedule).

Plaintiff does not respond to NES’s arguments regarding whether he exhausted claims

related to the number of shifts he received in November and December 2018. See Resp. NES

Mot. Summ. J. 94–98; NES Reply Mot. Summ. J. 146, ECF No. 71 (noting Plaintiff’s failure to

respond). Plaintiff states that “he knew his GCH ED scheduled dates for January, 2019 had been

removed” by November 15, 2018. Resp. NES Mot. Summ. J. 97 (emphasis removed) (citing

Schedule Change Documentation). He does not point to any evidence that would create a

genuine dispute as to whether the schedule for January 2019 changed after November 15, 2018.

He also concedes that his administrative charges did not mention alleged discrimination with

respect to the number of shifts he worked each month. Id. at 2. Like a suspension or paycheck,

each monthly schedule was a discrete act. Cf. Morgan, 536 U.S. at 114; Groesch, 635 F.3d at

1027. Therefore, the Court finds that claims of discrimination based on the number of shifts

Plaintiff was scheduled to work in November 2018, December 2018, and January 2019 were not

exhausted and that Plaintiff cannot seek relief based solely on those months’ schedules. See

Morgan, 536 U.S. at 113.

2. Removal from GCH ED Schedule

NES argues that claims related to Plaintiff’s complete removal from the GCH ED

schedule are unexhausted—and therefore barred—as untimely and unrelated to the

administrative charges’ allegations. NES Mot. Summ. J. 31. Plaintiff disagrees that claims

based on his permanent removal from the ED schedule are untimely because the decisionmakers

themselves had not yet decided to permanently remove Plaintiff from the GCH ED schedule by

November 16, 2018, and because Plaintiff did not receive unequivocal notice of this removal

until January 3, 2019. Resp. NES Mot. Summ. J. 95–98. Plaintiff had received notice of his

complete removal from the January 2019 schedule by November 16, 2018, but viewing the facts

in the light most favorable to Plaintiff, as far as he knew this removal could have been just for

January and not subsequent months. See Wrolstad, 911 F.3d at 456 (“[T]he employer’s decision

must be final, ultimate, [and] non-tentative, and the employee must receive unequivocal notice of

it.” (second alteration in original) (quotation marks omitted)). Flynn’s letter to NES—formally

requesting that Plaintiff be permanently removed from the GCH ED schedule—was not authored

until November 20, 2018. See Nov. 20, 2018 Letter from James Flynn to Thomas Brown.

Plaintiff was not sent a copy of this letter until January 3, 2019. See Jan. 3, 2019 Email from

Thomas Brown to Veerasikku Bommiasamy, Resp. NES Mot. Summ. J. Ex. P, ECF No. 67-16 at

3–4. Claims based on Plaintiff’s permanent removal from the GCH ED schedule are not barred

as untimely because Plaintiff did not receive unequivocal and final notice of NES’s decision until

January 3, 2019.12

However, Plaintiff fails to respond to NES’s argument that claims based on his

permanent removal from the GCH ED schedule are outside the scope of the administrative

charges. See Resp. NES Mot. Summ. J. 95–98. Plaintiff concedes that his administrative

charges did not make any allegations regarding his permanent removal from the GCH ED

schedule, as opposed to termination of his services. Resp. NES Mot. Summ. J. 2; NES Reply

Mot. Summ. J. 146. As “it is not [the Court’s] responsibility to make the parties’ arguments for

them,” United States v. Leo, 792 F.3d 742, 749 (7th Cir. 2015), the Court finds that claims based

solely on Plaintiff’s permanent removal from the GCH ED schedule are unexhausted and

therefore barred.

3. Hostile Work Environment Harassment

NES argues that Plaintiff’s harassment claims—regarding a hostile work environment—

are untimely and unexhausted. NES Mot. Summ. J. 31–33. Unlike the discrete employment

practices discussed above, only one act which is a part of the allegedly unlawful employment

practice need to have occurred after November 16, 2018, for this claim to be timely. See

Hambrick, 79 F.4th at 841. NES notes that Plaintiff testified that Dr. Singel stopped making

discriminatory remarks directed at Plaintiff by July 2018 or earlier. NES Mot. Summ. J. ¶ 120.

Once again, Plaintiff does not respond to NES’s arguments that this claim is untimely. Resp.

12 NES points to handwritten correspondence from Plaintiff which states that he had “been terminated . . . as of Nov

15, 2018” to argue that Plaintiff had notice of his termination and permanent removal from the GCH ED schedule by

November 15, 2018. See NES Mot. Summ. J. ¶ 38 (citing Jan. 28, 2019 Letter from Veerasikku Bommiasamy to

Frank Peppers, NES Mot. Summ. J. Ex. 17, ECF No. 35-18). However, that handwritten correspondence is dated

January 28, 2019, and Plaintiff avers that he “surmised, in hindsight, that the decision to eliminate and terminate

[his] employment had been made by November 15, 2018.” Pl. Decl. ¶ 133. At a minimum, there is a genuine

dispute of material fact as to whether Plaintiff knew that he had been permanently removed from the GCH ED

schedule and terminated by November 15, 2018, precluding a finding that claims based on his permanent removal

from the GCH ED schedule or termination are barred as untimely.

NES Mot. Summ. J. 95–98; NES Reply Mot. Summ. J. 146. Therefore, Plaintiff has failed to

point to any timely allegations of harassment, such that his claim of discrimination based upon a

hostile work environment is untimely and barred.

In sum, only claims related to Plaintiff’s ultimate termination are exhausted and properly

considered as part of the instant case. Plaintiff’s claims related to his permanent removal were

timely, but his failure to allege in his EEOC charge that his permanent removal was

discriminatory means that the claim is unexhausted and barred. Plaintiff’s arguments treat the

permanent removal and ultimate termination as part of a continuing violation, but they are

discrete acts and Plaintiff may only seek relief based on his ultimate termination. See Morgan,

536 U.S. at 113 (“[The plaintiff] could not use a termination that fell within the limitations

period to pull in the time-barred discriminatory act.” (citing Del. State Coll. v. Ricks, 449 U.S.

250, 257 (1980))). Additionally, while viewing the facts in the light most favorable to Plaintiff,

GCH’s request to permanently remove Plaintiff from the GCH ED schedule contributed to his

ultimate termination, GCH had no authority to terminate Plaintiff’s physician agreement—that

was NES’s sole decision. See Pl.’s Physician Agreement ¶ 1 (“[T]his Agreement may be

terminated by the Corporation immediately . . . .” (emphasis added)); GCH Mot. Summ J. ¶ 54.

Because Plaintiff has failed to show that GCH should be liable for NES’s allegedly

discriminatory exercise of its rights under the Plaintiff Physician Agreement, GCH’s Motion for

Summary Judgment is GRANTED.

C. Discriminatory Termination

Title VII makes it unlawful for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Similarly,

the ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any

individual [in the protected class] . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1).

To survive summary judgment on claims under either statute, a plaintiff must point to evidence

that “would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex,

religion, or other proscribed factor caused the discharge or other adverse employment action.

Evidence must be considered as a whole, rather than asking whether any particular piece of

evidence proves the case by itself . . . .” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th

Cir. 2016).

There is no question that Plaintiff—born in India and over the age of forty—has protected

characteristics. See Resp. NES Mot. Summ. J. 59; Johal v. Little Lady Foods, Inc., No. 02 C

8481, 2004 WL 1745749, at *13 (N.D. Ill. July 30, 2004) (“As a [person] born in India over the

age of forty, [the plaintiff] falls into several protected classes: . . . age, national origin, and

color.”), aff’d, 434 F.3d 943 (7th Cir. 2006). He was terminated, which is indisputably an

adverse employment action. See, e.g., Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012).

NES argues that Plaintiff cannot succeed under either the holistic standard of Ortiz or the

burden-shifting framework of McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). See,

e.g., NES Mot. Summ. J. 34–36. The McDonell Douglas framework is not as useful where, as

here, the defendant relies upon performance problems as the legitimate, non-discriminatory

reasons for the plaintiff’s termination. See Khungar, 985 F.3d at 573. The Court proceeds

straight to the Ortiz inquiry and considers whether there is sufficient evidence from which a jury

could conclude that Plaintiff was illegally terminated because of his age, national origin, or both.

See Vichio v. US Foods, Inc., 88 F.4th 687, 691 (7th Cir. 2023) (“Because [the employer] has

raised [the employee]’s performance as the reason for his termination, we need not consider [the

employee]’s prima facie case under McDonell Douglas or conduct a separate analysis of the facts

under the two frameworks.”); Coleman, 667 F.3d at 857 (“[C]omparator evidence is relevant at

the pretext stage.”). Plaintiff argues that there is sufficient evidence because NES gave

pretextual reasons for his termination and because similarly situated physicians were treated

differently. E.g., Resp. NES Mot. Summ. J. 98–113.

1. Treatment of Similarly Situated Employees

The inquiry for similarly situated employees was summarized in McDaniel v. Progress

Rail Locomotive, Inc., 940 F.3d 360, 368–69 (7th Cir. 2019). There, the Seventh Circuit stated:

Although similarly situated employees need not be identical in every conceivable

way, they must be directly comparable to the plaintiff in all material respects. In

the usual case a plaintiff must at least show that the comparators (1) dealt with the

same supervisor, (2) were subject to the same standards, and (3) engaged in similar

conduct without such differentiating or mitigating circumstances as would

distinguish their conduct or the employer’s treatment of them. But this is not a hard

and fast test, and there is no magic to these considerations. In the employment

discrimination context, the requirement to find a similarly situated comparator is

really just the same requirement that any case demands—the requirement to submit

relevant evidence. Whether a comparator is similarly situated is typically a

question for the fact finder, unless, of course, the plaintiff has no evidence from

which a reasonable fact finder could conclude that the plaintiff met his burden on

this issue.

Id. (quotation marks omitted). “The purpose of the similarly situated prong is to eliminate other

possible explanatory variables, such as differing roles, performance histories, or decision-making

personnel, which helps isolate the critical independent variable – discriminatory animus.”

Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 719 (7th Cir. 2021)

(quotation marks omitted).

Plaintiff points to Drs. David W. Dean and Christopher M. Herman as his comparators.

Resp. NES Mot. Summ. J. 111–13. Both are white men over twenty years younger than

Plaintiff, were born in the United States, speak without a “non-American . . . accent when

speaking English,” and were already working at the GCH ED when NES entered into the

Staffing Agreement with GCH. Id. at 112. Both signed Physician Agreements with NES, which

the comparator doctors assert were similar to Plaintiff’s Physician Agreement. See, e.g., id.

(citing Dean Decl. ¶¶ 4–5, Resp. NES Mot. Summ. J. Ex. N, ECF No. 67-14 (“In late 2017, I

signed a Physician Agreement and Addendum with NES similar to the Physician Agreement and

Addendum that [Plaintiff] signed with NES in late 2017 . . . .”)). All three were “supervised by

and reported to the same individuals, and w[ere] subject to the same standards, policies and

review structures and procedures.” Id. Drs. Dean and Herman continued to work in the GCH

ED until the relevant Staffing Agreement ended, sometime after January 1, 2019. See Dean

Decl. ¶ 8; Herman Decl. ¶ 6, Resp. NES Mot. Summ. J. Ex. O, ECF No. 67-15. Both Drs. Dean

and Herman assert that they never experienced any form of discrimination, and that they were

excellent ED physicians, like Plaintiff. See Dean Decl. ¶¶ 9–10; Herman Decl. ¶¶ 7–8.

Defendants state that Plaintiff has failed to adduce evidence of sufficient comparators.

See NES Mot. Summ. J. 37–38; GCH Mot. Summ. J. 22–24. They argue that: (1) the

declarations of Drs. Dean and Herman are conclusory and therefore inadmissible as summary-

judgment evidence, NES Reply Mot. Summ. J. 142; and (2) the declarations fail to establish

“even one instance in which Drs. Dean or Herman engaged in conduct that NES considered

deficient, with respect to Plaintiff, without consequence, so Plaintiff’s comparisons of himself to

Drs. Dean and Herman are entirely misplaced,” id. at 143. Plaintiff does not respond to the first

argument but argues without citation to any authority that the second argument is “misplaced, as

each of these ‘difficulties’ and ‘concerns’ was knowingly fabricated as pretexts for the removal

of Plaintiff.” Resp. NES Mot. Summ. J. 112.

“[I]n order to show that a coworker is similarly situated to a terminated employee, the

employee must show that the other coworker had a comparable set of failings.” Burks v. Wis,

Dep’t of Transp., 464 F.3d 744, 751 (7th Cir. 2006) (quotation marks omitted); see also Simpson

v. Franciscan All., Inc., 827 F.3d 656, 662 (7th Cir. 2016) (“An employee who does not have a

similar disciplinary history and performance record as the plaintiff is not similarly situated.”).

Plaintiff does not even attempt to make a showing that Drs. Dean or Herman had similar

scheduling requirements or that they engaged in any specific work-related misconduct, let alone

conduct that is similar to what NES cites as the performance concerns that justified Plaintiff’s

termination. Because neither physician “had a comparable set of failings,” neither of them are

“similarly situated.” Burks, 464 F.3d at 752 (quotation marks omitted).

Plaintiff’s perfunctory argument that NES’s stated concerns were pretextual and therefore

he need not point to comparable failings is unsupported and unpersuasive in light of cases like

Burks and Simpson. The point of the similarly situated prong is to “eliminate other possible

explanatory variables,” and Plaintiff does not provide any competent evidence as to the variable

of work performance. See Marnocha, 986 F.3d at 719 (quotation marks omitted). Plaintiff has

failed to adduce sufficient evidence of a similarly situated comparator.13

2. Performance and Pretext

Plaintiff must show that there is sufficient evidence to allow a reasonable jury to

conclude that NES’s cited legitimate, non-discriminatory reasons for his termination “are

pretextual, meaning false, allowing an inference that the [Defendants’] true intent was

13 Throughout his responses, Plaintiff also compares himself to Dr. Singel. See, e.g., Resp. NES Mot. Summ. J. 104

(“In other words, Dr. Singel himself was more consistently unavailable and more difficult to schedule that

Plaintiff.”). “Ordinarily, a plaintiff is not similarly situated to another employee when the plaintiff is subordinate to

that employee.” Mirocha v. Palos Cmty. Hosp., 240 F. Supp. 3d 822, 842 (N.D. Ill. 2017). The Court finds that that

are not “enough common factors to allow for a meaningful comparison,” see id., between Plaintiff and Dr. Singel

because of the effect of Dr. Singel’s administrative responsibilities on his scheduling and Plaintiff’s lack of similar

responsibilities, see Mott Decl. ¶ 17.

discriminatory.” Runkel v. City of Springfield, 51 F.4th 736, 744 (7th Cir. 2022); see also St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (holding that a showing of pretext

“(particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the

elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of

the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of

intentional discrimination . . . .”). Defendants insist that showing pretext is not enough—

Plaintiff must “also show that the explanations are a pretext for the prohibited animus.” NES

Mot. Summ. J. 38 (quoting Chatman v. Bd. of Educ. of City of Chi., 5 F.4th 738, 747 (7th Cir.

2021)). But see Baines v. Walgreen Co., 863 F.3d 656, 665 (7th Cir. 2017) (“Evidence that an

employer lied about the reasons for an adverse employment action permits a trier of fact to infer

that the decision was actually motivated by discriminatory animus.”).

More recent decisions cast doubt on Defendants’ assertion that pretext by itself is

insufficient, absent some further showing of prohibited animus. See Runkel, 51 F.4th at 745 n.3

(instructing that language in prior decisions which could suggest that “a showing of pretext

requires a plaintiff to show the employer’s non-discriminatory reason was dishonest, and also to

show that the employer’s true reason was discriminatory . . . . should not be interpreted to

suggest that a plaintiff must show both pretext and some additional evidence of discrimination to

permit the inference of unlawful intent”). “[A]n employer’s dishonest explanation of a decision

can, by itself, support an inference that its real reason was unlawful.” Vichio v. US Foods, Inc.,

88 F.4th 687, 695 (7th Cir. 2023) (quotation marks omitted).

Defendants point out that many of Plaintiff’s arguments turn on his evaluation of his own

performance. See, e.g., GCH Mot. Summ. J. 26. For example, Plaintiff testified that he did not

make any mistakes at GCH. Pl. Dep. 126:4–127:6, NES Mot. Summ. J. Ex. 2, ECF No. 35-3;

see also Pl. Decl. ¶ 36, Resp. NES Mot. Summ. J. Ex. A, ECF No. 67-1 at 1–36 (asserting that

prior to Dr. Singel’s first shift at the GCH ED, he had never been criticized for how he handled

patient’s pain, as compared with any other physician); id. ¶¶ 95–104 (asserting that his handling

of the ET tube incident was proper); id. ¶¶ 90–94 (asserting that the stress test incident was not

his fault and instead the fault of the cardiac rehabilitation physician); id. ¶¶ 106–26 (asserting

that he handled the code situations properly); id. ¶¶ 62–63 (asserting that any negative peer-

review finding was wrong). In some circumstances, a plaintiff’s assertion that his job

performance was satisfactory can show that the plaintiff was meeting her employer’s legitimate

expectations. See Oates v. Discovery Zone, 116 F.3d 1161, 1171–72 (7th Cir. 1997).

But an employee’s “own evaluation of his work cannot be imputed to [the employer], and

is insufficient to permit his case to survive past summary judgment.” Dickerson v. Bd. of

Trustees of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 603 (7th Cir. 2011); see also Lauth v.

Covance, Inc., 863 F.3d 708, 715–16 (7th Cir. 2017); Wyninger v. New Venture Gear, Inc., 361

F.3d 965, 980 (7th Cir. 2004) (“An employee’s self-evaluation cannot create an issue of fact

about an employer’s honest assessment of inadequate performance.”). “In considering whether

[Plaintiff] met [Defendants’] expectations, [t]he proper inquiry mandates looking at [Plaintiff’s]

job performance through the eyes of h[is] supervisors at the time. The question is not whether

the [employer’s performance] ratings were right but whether the employer’s description of its

reasons is honest.” Khungar, 985 F.3d at 574 (third and last alteration in original) (quotation

marks omitted).

Dr. Wexler and Brown aver that the legitimate, non-discriminatory reasons for the

ultimate termination of Plaintiff’s Physician agreement were the ET tube incident, the stress test

incident, the two code situations, EMR issues, Plaintiff’s scheduling difficulties, and the lack of

another open position for which Plaintiff was qualified at the time that he was removed from the

GCH ED schedule. Wexler Decl. ¶¶ 26–27; Brown Decl. ¶¶ 21–22; see also NES Mot. Summ.

J. ¶¶ 46–49, 54–62, 71–73, 82. Plaintiff makes a variety of evidentiary objections to these

material facts, none of which have merit. Resp. NES Mot. Summ. J. 25–26, 28–31, 34–37, 41–

42. For example, he objects to the assertion that Davis told Dr. Wexler and Brown about

Plaintiff’s EMR issues because “the source of any rumor that Plaintiff’s need for help using

EMR is not even identified,” and that Davis’s testimony constitutes hearsay and lacks

foundation. See id. at 24.

His foundation objection is meritless—Davis was Chief Nursing Officer, and

“[e]mployment can provide the foundation for facts and perceptions relating to that

employment,” Krnich, 2021 WL 3930306, at *3; see also Cirimotich Dep. 128:10–16 (testifying

that “the nurse leader and nurse director of the emergency department report[ed]” to Davis);

Davis Dep. 15:5–10 (testifying that “the emergency department manager was my direct report,

and she had I would guess about 25 staff of emergency nurses and technicians that reported to

her”); id. at 15:20–16:3 (testifying that Mindy Ragon was GCH’s emergency department

manager); id. at 91:15–92:2 (testifying that “the ER director,” Mindy Ragon “would have been”

the person to bring to Davis’s attention Plaintiff’s issues with the EMR system). Davis’s

position as CNO and GCH’s reporting structure supplies the necessary foundation for this

testimony. The hearsay objection also misses the mark. These statements are not used to prove

the truth of Plaintiff’s performance—that Plaintiff in fact struggled with the EMR system—but

rather what the relevant decisionmakers believed when they decided to terminate Plaintiff. See,

e.g., Khungar, 985 F.3d at 574. Plaintiff attempts to create a dispute of material fact on this

point by pointing to his affidavit, in which he asserts: “I have never needed nor requested help

from anyone using the EMR system, on which I am fully proficient.” Pl. Decl. ¶ 129. To the

extent that Plaintiff attempts to create a dispute of fact regarding what Dr. Wexler and Brown

believed about Plaintiff’s performance when NES terminated his Physician Agreement by

arguing that such statements are hearsay, lack foundation, are expert testimony, or do not align

with Plaintiff’s evaluation of his own performance,14 the Court rejects the argument and deems

the disputed fact to be admitted.

Plaintiff argues that NES’s reasons are pretextual because Dr. Wexler and Brown failed

to take certain steps that Plaintiff thought would be necessary to justify his termination. The

Court finds the Seventh Circuit’s decision in Khungar to be informative. See id. at 575–77. The

Seventh Circuit considered and rejected the physician-plaintiff’s attempts to undermine her

employer’s arguments that her performance was unsatisfactory. Id. Specifically, the Seventh

Circuit rejected the plaintiff’s arguments that: (1) complaints about her performance were

fabricated because “the complaints weren’t brought to her attention” because the fact “[t]hat [the

plaintiff] wasn’t informed of each complaint tells us only that; it does not mean they were

fictitious,” id. at 575; (2) her termination was “unusual—and thus pretextual—because [the

employer] did not conduct an investigation into her conduct or follow its normal policy” because

there was no “policy or procedure for responding to patient complaints” and courts “do not tell

14 Unlike Dr. Wexler’s testimony, Plaintiff’s affidavit’s citations to medical treatises and journals to establish that

his care in the ET tube incident was proper does constitute impermissible expert testimony because Plaintiff was not

disclosed as an expert witness and this testimony is offered to prove the applicable standard of medical care and

Plaintiff’s non-deviation therefrom. Cf. Massey v. United States, 312 F.3d 272, 280 (7th Cir. 2002) (applying

Illinois law to a medical malpractice claim and noting “expert medical testimony is required to establish the standard

of care and the defendant physician’s deviation from that standard” (quotation marks omitted)). Also, the purported

statements of the patient’s family members and other unidentified medical professionals involved in the patient’s

care are offered to prove the truth of the matters they assert, namely that others agreed with Plaintiff’s decision to

not extubate the patient, see, e.g., Pl. Decl. ¶ 97 (“The ED manager in charge, the hospital-wide supervisor, the

patient’s primary care doctor (whom I called to consult), and myself together agreed with the decision not to

extubate the patient when the ventilator was removed”), and are therefore impermissible hearsay. The Court finds

that these inadmissible assertions are not competent summary-judgment evidence.

employers how to discipline employees; rather, [they] ensure that the process is not

discriminatory,” id. at 576 (quotation marks omitted); and (3) the stated reasons for her

termination—relating to a purported threat to destroy the employer’s clinic—was pretextual

because “even if [the court] assume[d] that [the plaintiff] never made a threating statement . . .

[t]he undisputed evidence show[ed] that [an HR employee] had cause to believe that [the

plaintiff] made a threatening statement,” id. at 576–77 (quotation marks omitted). The Seventh

Circuit also highlighted the testimony of the chief medical officer and health center manager

“that they were merely putting together information for Human Resources in anticipation of

invoking the ninety-day notice” which was required under the plaintiff’s employment agreement.

Id. at 570, 575.

Plaintiff advances many of the same arguments which were rejected in Khungar. He

asserts that the ET tube incident and stress test were fabricated because they were not “peer

reviewed or otherwise investigated,” and “Brown, Dr. Wexler, and GCH’s administration never

sought to consult Plaintiff regarding either of the two clinical situations.” Resp. NES Mot.

Summ. J. 107. But Plaintiff has not adduced any evidence that GCH had a policy which required

that physicians be contacted about complaints against them nor that such complaints always be

referred to peer review. See NES Mot. Summ. J. ¶ 103. That Plaintiff was not informed of a

complaint tells the Court only that, it does not mean that the complaint was fictitious. See

Khungar, 985 F.3d at 575. Similarly, the lack of a policy regarding when—as opposed to how—

a peer review must be conducted means that the lack of peer review or investigation into a given

complaint does not tell the Court that an incident which was not peer reviewed must be fictitious

or the product of pretext. See id. at 576. Finally, even if Plaintiff’s conduct in the ET tube

incident, stress test incident, and two code situations was indeed proper, the undisputed evidence

shows that the decisionmakers had descriptions of Plaintiff’s performance—which they had

cause to believe was deficient—before them when they decided to terminate Plaintiff. See id.

Attempting to show that Cirimotich’s reasoning was pretextual, Plaintiff highlights that

“Cirimotich was purely an administrative nurse, not a physician capable of understanding and

reviewing Plaintiff’s performance in complex ‘code’ situations.” Resp. NES Mot. Summ. J. 109.

He points to GCH’s interrogatory responses—which stated that “the Chief Quality Officer would

not have managed, evaluated, or otherwise supervised Plaintiff (who was an independent

contractor) or evaluated the performance of his work,” GCH Interrog. Resp. 11—and argues this

“hallmarks her ‘code’ narratives as pretextual,” Resp. NES Mot. Summ. J. 108–09. But that

same interrogatory response noted that Cirimotich might “have general information concerning

quality concerns,” GCH Interrog. Resp. 11, and there is no evidence that any decisionmakers had

reason to doubt her competency to observe and record her observations. Similarly, Cirimotich

made her observations at the end of October—her October 31, 2018 email states that the code

incidents occurred over “the past 2 days,” see Oct. 31, 2018 Email from Cassie Cirimotich to

Thomas Brown—after Cirimotich met with Brown, Dr. Wexler, Davis, and Flynn on October 23

and Dr. Wexler told her to write down her clinical concerns about Plaintiff. But compiling a

record to justify termination is not itself a discriminatory act. Cf. Khungar, 985 F.3d at 575.

Plaintiff points to Dr. Singel’s role in Plaintiff’s ultimate termination—he allegedly

oversaw scheduling, he sat on certain peer review committees that judged Plaintiff’s work, he

relayed the ET tube and stress incidents to Dr. Wexler and Brown, and he recommended that

Plaintiff be terminated. See, e.g., Resp. NES Mot. Summ. J. 105. Plaintiff does not argue that

Dr. Singel was the ultimate decisionmaker for NES and—although not described as such—his

theory of liability is essentially the “cat’s paw” theory. See Simpson v. Beaver Dam Cmty.

Hosps., Inc., 780 F.3d 784, 797–98 (7th Cir. 2015). To succeed on a cat’s paw theory, “the

plaintiff must present evidence that the biased subordinate actually harbored discriminatory

animus against him and that the subordinate’s scheme proximately caused the adverse

employment action.” Sinha v. Bradley Univ., 995 F.3d 568, 574 (7th Cir. 2021) (quotation

marks omitted). The theory requires Plaintiff to show that Dr. Singel “was motivated by

discriminatory animus and falsely reported his behavior” to Dr. Wexler, Brown, or both.

Simpson, 780 F.3d at 798. He would also need “to raise an issue as to pretext for each proffered

concern to withstand summary judgment.” Id. “An employer may avoid cat’s-paw liability if

the decisionmaker is not wholly dependent on a single source of information and conducts her

own investigation into the facts relevant to the decision.” Sinha, 995 F.3d at 574 (quotation

marks omitted).

To the extent that Dr. Singel’s threatening comments, which ended in July 2018, are not

stray remarks, see Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 934–35 (7th Cir. 2020);

Almblade v. Wormuth, No. 4:20-cv-04196-SLD-JEH, 2021 WL 4341931, at *7 (C.D. Ill. Sept.

23, 2021), no reasonable jury could find for Plaintiff on a cat’s paw basis because Dr. Singel was

not involved in each basis that was identified for Plaintiff’s ultimate termination. There is at

least a genuine dispute of material fact as to whether Dr. Singel exercised control over

scheduling. See Dec. 6, 2019 Letter from Rachel Wright to Julie Bretz, US EEOC 2; Singel

Physician Agreement 9; Mar. 27, 2018 Email from Heather Mott to Veerasikku Bommiasamy;

Davis Dep. 95:16–18. However, Plaintiff has not sufficiently supported his assertion that

“[b]ecause Dr. Singel was in charge of the ED scheduling, this complaint [about Plaintiff’s

scheduling difficulties] necessarily came from him.” Resp. NES Mot. Summ. J. 102. The

scheduling complaints—which remain valid despite Plaintiff’s willingness to work shifts that

met his parameter of only day-shifts—are just as likely to have come from Mott or recruiters like

Kirkland. See Wexler Decl. ¶ 25 (“[T]he physicians wanted a balance of day and overnight

shifts—and physicians were generally unwilling to work only overnight shifts.”); id.

(“Accommodating [Plaintiff]’s demands to only work day shifts made it harder to recruit and

retain physicians . . . . [Plaintiff]’s refusal to work night shifts was a problem for NES beyond the

simple fact of [Plaintiff]’s refusal to work at least half of the shifts each month.”); see also Mott

Decl ¶¶ 16, 22. Plaintiff “is not entitled to the benefit of inferences that are supported only by

speculation or conjecture.” See Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). More simply,

Dr. Singel was not involved in the reporting of the two code narratives and the EMR issues.15

Because Plaintiff cannot “raise an issue as to pretext for each proffered concern,” he cannot

“withstand summary judgment” on this theory of liability. See Simpson, 780 F.3d at 798.

All that is left is the suspicious timeline. See Resp. NES Mot. Summ. J. 106–07. The ET

tube incident, stress test incident, and code narratives were only surfaced after the

decisionmakers had already met twice to discuss Plaintiff’s termination. A reasonable jury might

be tempted to find this suspicious and a sign that Plaintiff’s “termination seemed to be

predetermined.” See Vichio, 88 F.4th at 692. However, some concerns predated the meetings

that precipitated Plaintiff’s removal from the GCH ED schedule, such as the EMR issues, his

speed, and his overall effectiveness. It would be unreasonable for a jury to infer discriminatory

intent from the act of documenting existing concerns in anticipation of justifying a termination.

Cf. Khungar, 985 F.3d at 575. Without more compelling and competent circumstantial evidence,

15 One of the code narratives references states that Plaintiff “had to be retrieved by the director of the ED,” Brown’s

Notes 6, which Plaintiff interprets to be Dr. Singel, see Resp. NES Mot. Summ. J. 89–90. He disputes that Dr.

Singel could have been there, based on the relevant GCH ED schedule. Id. This ignores Dr. Singel’s administrative

and supervisory responsibilities but is ultimately immaterial as it does not affect the first code narrative, which Dr.

Wexler thought also demonstrated poor leadership and provided a reason to terminate Plaintiff. See Wexler Decl.

¶ 17.

Plaintiff cannot convince a reasonable jury that NES’s decisionmakers did not honestly believe

that their stated reasons for terminating Plaintiff’s Physician Agreement were legitimate, non-

discriminatory reasons.

CONCLUSION

Accordingly, NES’s Combined Motion and Memorandum of Law in Support of

Summary Judgment, ECF No. 35, is GRANTED, GCH’s Motion for Summary Judgment, ECF

No. 36, is GRANTED, and Plaintiff’s Motion to Strike Opinions and Hearsay in Declaration of

Steven Wexler, M.D. and All References Thereto in NES’s Summary Judgment Papers, and for

the Imposition of Rule 37(c)(1) Sanctions, ECF No. 41, is DENIED. The Clerk is directed to

enter judgment and close the case.

Entered this 29th day of March, 2024.

s/ Sara Darrow

SARA DARROW

CHIEF UNITED STATES DISTRICT JUDGE