Khungar v. Access Community Health Network

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

POOJA KHUNGAR, )

)

Plaintiff, )

) No. 18-cv-01454

v. )

) Judge Andrea R. Wood

ACCESS COMMUNITY HEALTH )

NETWORK, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Pooja Khungar, a pediatrician, has brought this suit against Defendant Access

Community Health Network (“ACHN”), her former employer. She alleges that ACHN

discriminated against her on the basis of her national origin and race (Indian and Southeast

Asian), as well as her religion (non-Christian), and also terminated her in retaliation for

complaining about the treatment to which she was subjected, all in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Now before the Court are

ACHN’s motion for summary judgment under Federal Rule of Civil Procedure 56 (Dkt. No. 50),

as well as various motions by the parties seeking to strike certain material from and add certain

other material to the summary judgment record (Dkt. Nos. 70, 71, 76, 80, 83). For the reasons

discussed below, the Court grants ACHN’s summary judgment motion and disposes of the

various other motions as indicated below.

BACKGROUND

The parties dispute many material facts. Here, for purposes of considering summary

judgment, the Court sets forward the facts as favorably to Khungar, the nonmovant, as the record

and Local Rule 56.1 permit. See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893

(7th Cir. 2018).

Khungar claims that, as an Indian doctor who does not practice the Christian faith, she

faced discrimination at the hands of the largely Hispanic and Christian staff at her former

workplace. Khungar began working for ACHN as a pediatrician around July 28, 2014. (Pl.’s

Resp. to Defs.’ Statement of Undisputed Facts (“PRSOF”) ¶ 1, Dkt. No. 62.) She worked at

ACHN’s Kedzie Health Clinic in Chicago throughout her employment with ACHN. (Defs.’

Statement of Undisputed Facts (“DSOMF”) ¶ 1, Dkt. No. 49.) Around May 31, 2016, ACHN

confirmed that Khungar was fully credentialed in accordance with state guidelines and ACHN

policies and approved her employment from July 1, 2016 to July 1, 2018. (PRSOMF, Ex. 12,

Dkt. No. 62-1.) Khungar’s employment contract renewed automatically each year, provided

neither she nor ACHN terminated it; it last renewed on July 28, 2016. (DSOMF, Ex. U, Landivar

Dep. 31:1–19, Dkt. No. 49-21.)

While the parties agree on the identities of the individuals who worked with Khungar at

ACHN, they disagree on the roles that Khungar’s colleagues played in her termination. Until

August 12, 2016, Dr. Charles Barron served as the regional medical director and Khungar’s

immediate supervisor. (DSOMF ¶ 3.) Dr. Andres Mafla subsequently replaced Barron in that

role. Beginning in February 2016, Dr. Jairo Mejia served as chief medical officer, a role in which

he oversaw providers like Khungar and provided guidance for patient care and regulatory issues.

(DSOMF ¶ 5; Ex. E, Mejia Dep. 5:7–11, Dkt. No. 49-5.) The individuals who interacted with

Khungar most frequently at the Kedzie clinic were fellow pediatrician Dr. Tara De Jesus, health

center manager Alicia Mariscal, and medical assistants Jasmine Angel and Gloria Rosales.

(DSOMF, Ex. AA, De Jesus Dec. ¶ 1, Dkt. No. 49-26; DSOMF ¶¶ 6, 13.)

By 2015, Khungar’s relationships with her Kedzie clinic colleagues had begun to

deteriorate. Khungar contends that because she was not Hispanic or Christian like most of her

coworkers, the others singled her out for disparagement based on her ethnicity and religion by

mocking her for her “ethnic cooking” and “Indian religion,” excluding her from Christian

religious celebrations, and otherwise harassing her. (PRSOMF, Ex. 43, Khungar Decl. ¶ 23, Dkt.

No. 62-4.) Khungar further contends that Mariscal, upset she had not been asked to participate in

recruiting Khungar, told Khungar she would not have let a white nurse practitioner from Yale

work at Kedzie and implied that a “rich white woman who shops at Bloomingdales” would not

be suited to Kedzie. (Id. ¶ 3.) Khungar also claims that Mariscal favored De Jesus, who, like

Mariscal, was Puerto Rican, over Khungar. (Id. ¶ 5.) Khungar claims that she complained about

these problems to Barron at a November 2015 meeting that included Mariscal, after which

Mariscal targeted Khungar for mockery based on her ethnicity and worked with De Jesus

actively to solicit complaints from patients about Khungar. (Id. ¶ 13.)

ACHN contends that any problems Khungar experienced at Kedzie resulted from her

own behavior toward staff and patients. On August 18, 2015, Barron sent Khungar what he

labelled a “final warning” letter, which chastised her for accessing the medical record of a patient

to obtain contact information for an employee who was absent from work. (DSOMF, Ex. J, Aug.

18, 2015 Letter from Barron, Dkt. No. 49-10.) Concerned for the absent employee’s safety,

Khungar accessed a patient chart to find the phone number of that employee’s relative.

(PRSOMF, Ex. 43, Khungar Decl. ¶ 6.) But because Khungar accessed the patient’s information

for what ACHN deemed to be her own personal use, a violation of the patient privacy protections

set out in the Health Insurance Portability and Accountability Act (“HIPAA”), Barron cautioned

her that this letter served as her “Final Warning.” (DSOMF, Ex. J., Aug. 18, 2015 Letter from

Barron.)

In addition, on May 3, 2016, a patient’s mother complained to De Jesus that Khungar had

not fully examined a thirteen-year-old patient to determine the root of her pelvic pain and instead

insinuated without any evidence that the child was sexually active. (DSOMF ¶¶ 10–11; DSOMF,

Ex. L, Patient Complaint, Dkt No. 49-12.) ACHN further contends that on May 19, 2016, Angel

complained to Mariscal that Khungar made comments to Rosales and Angel implying that

Rosales was not performing her job correctly. (DSOMF, Ex. F, Mejia Decl. ¶ 6, Decl. Ex. 2, Dkt.

No. 49-6.) Those complaints were routed to Mariscal, who apparently passed them on to Barron.

(DSOMF, Ex. C, Barron Decl. ¶¶ 2–3, Dkt. No. 49-3.) Barron subsequently conducted a

performance review with Khungar on June 6, 2016. (DSOMF ¶ 14; PRSOMF, Ex. 43, Khungar

Decl. ¶ 10.) He now contends that he told Mejia and others at a credentialing committee meeting

on June 8, 2016 that he had concerns about Khungar’s performance and would address them with

her, but Khungar contends he never raised any concerns about her behavior either at the

performance review or afterward. (DSOMF, Ex. C, Barron Decl. ¶¶ 2–6; PRSOMF, Ex. 43,

Khungar Dec. ¶ 10.)

Shortly after Khungar’s performance review, De Jesus and Mariscal received another

complaint from a parent, who told De Jesus that Khungar had recommended that her son not take

his psychiatric medication out of a concern he would become impotent, despite the fact that the

parent believed the medication was helping her child. (DSOMF, Ex. X, June 2016 De Jesus

Complaint, Dkt. No. 49-24; id., Ex. AA, De Jesus Decl. ¶ 2.) De Jesus also told Mariscal that

Kedzie staff had received a number of unsolicited complaints from parents about Khungar failing

to listen during appointments, not properly examining patients, not explaining herself during

appointments, and sharing inappropriate personal information (such as her dating life) with them.

(DSOMF, Ex. X, June 2016 De Jesus Complaint; id., Ex. AA, De Jesus Decl.; id., Ex. DD, Aug.

25, 2016 SafetyZone Report, Dkt. No. 49-29.) Khungar contends that these were not

spontaneous, unprompted complaints; instead, she believes that Mariscal and De Jesus actively

solicited complaints from patients in retaliation for Khungar complaining to Barron about

Mariscal’s racist statements. (PRSOMF, Ex. 43, Khungar Decl. ¶ 13.) Regardless, all of the

complaints about Khungar were forwarded to Barron and, after his departure, Mejia.

On June 9, 2016, Mariscal complained in an email to Barron, Laura Whalley (a regional

director at ACHN), Etta Henderson (ACHN compliance director), and various other individuals

working in human resources about Facebook messages that Khungar exchanged with a Kedzie

medical assistant, Mayra Gonzalez, characterizing the exchange as one in which Khungar

claimed she was denied a raise because Angel was a “back stabber.” (DSOMF ¶ 16; DSOMF,

Ex. O, Mariscal June 9, 2016 Email, Dkt. No. 49-15.) In the messages submitted by Khungar in

opposition to summary judgment, however, Khungar merely informs Gonzalez that, at her

meeting with Barron, Khungar requested she no longer be assigned to work with Angel.

(PRSOMF, Ex. 52, Facebook Messages., Dkt. No. 62-9) The following morning, Khungar

contacted Whalley and Henderson about a Facebook post shared by Angel in May 2015 that

noted a deceased child was a patient at ACHN. (DSOMF ¶ 18; id., Ex. Q, June 9, 2016, Email

from Laura Whalley, Dkt. No. 49-17.) Henderson and Stephanie Lilly, then a human resources

manager, directed Angel to remove the post, which she did. (DSOMF ¶ 19.) Khungar contends

she had reported Angel’s Facebook post to Mariscal prior to June 2016 and that Mariscal had

failed to take any action. (PRSOMF, Ex. 43, Khungar Dec. ¶ 11.)

Khungar asserts that throughout this time, her coworkers continued to make inappropriate

comments about her ethnicity and religion. After Rosales asked Khungar inappropriate personal

questions about Khungar’s religious beliefs (such as whether she believed in God) and whether

she would ever date a Hispanic man, Khungar requested that Mariscal speak with Rosales about

her conduct and reassign Rosales so she would work with other physicians. (DSOMF, Ex. R,

June 11, 2016, Khungar Email to Mariscal, Dkt., No. 49-18.) Khungar contends that Mariscal

called her a liar. (PRSOMF, Ex. 49, Khungar Dep. 104:11–19, Dkt. No. 62-6.) ACHN, on the

other hand, contends that Mariscal told Khungar that Rosales would be reassigned; however,

despite Khungar’s appeal to Mariscal, Khungar still sometimes had to work with Rosales, who

began leaving pamphlets about Christianity in Khungar’s patient-exam rooms. (PRSOMF, Ex.

49, Khungar Dep. 113:14–18.) Despite Khungar’s efforts, no file was maintained at ACHN

regarding her complaints of harassment. (DSOMF, Ex. FF, Riley Dep. 54:16–19, Dkt. No. 49-

31.)

On June 15, 2016, Mariscal emailed Lilly, Mejia, Barron, and Whalley to report a series

of complaints about Khungar that she claimed to have received from other Kedzie staff

members. (DSOMF ¶ 27; id., Ex. M, Mariscal Decl., Decl. Exs. 1–3, Dkt. No. 49-13.) In one

complaint, a parent of a patient complained that Khungar had appeared bored and failed to

conduct a physical exam of the patient, despite the patient complaining of pain. (DSOMF, Ex. M,

Mariscal Decl., Decl. Ex. 1.) Mariscal also asserted that employees were complaining about

Khungar allegedly snapping at Angel, following Angel around to make sure she did not draw

blood from a patient, refusing to speak to her outside of work, and bad mouthing her to other

employees. (Id. Decl. Ex. 3.) Khungar does not dispute that this email was sent but contends that

Mariscal actively sought to solicit complaints about Khungar, rather than simply documenting

complaints that employees brought to her unprompted. She further claims she was never

informed about any of the complaints. (PRSOMF, Ex. 43, Khungar Decl. ¶¶ 7–8.)

Mejia contends that at some point in July 2016, after all the above had occurred, Barron

spoke with him regarding Khungar’s “poor performance.” (DSOMF ¶ 30; DSOMF, Ex. F, Mejia

Decl. ¶ 3.) Mejia emailed Eleva Riley, ACHN’s Vice President of Human Resources, noting the

“multiple situations” with Khungar and his purported concern that she was “not mentally stable”

and needed to be closely observed. (DSOMF ¶¶ 36, 51; DSOMF, Ex. Z, June 17, 2016 Mejia to

Riley Email, Dkt. No. 49-25.) In doing so, he forwarded an email that De Jesus had sent Mariscal

detailing that Khungar made her uncomfortable by revealing personal details about Khungar’s

ex-boyfriend and that many patients complained to De Jesus that Khungar did not listen or

explain things clearly, did not examine them, and inappropriately shared personal details such as

financial troubles and her problems with her ex-boyfriend, with them. (Id.) And on July 12,

2016, De Jesus emailed Mariscal another complaint from a parent, in which the parent claimed

Khungar failed to examine her daughter’s abdomen despite the daughter complaining of severe

abdominal pain, which a second doctor diagnosed as appendicitis. (DSOMF ¶ 37; id., De Jesus

Decl. ¶ 2, Decl. Ex. 1.) After receiving a copy of the complaint, Mejia emailed Lilly to let her

know he would be “keeping the situation on hold” to see how Khungar behaved; in response,

Lilly told him it was “inevitable” Khungar would have “to be let go” soon. (DSOMF, Ex. F,

Mejia Decl. ¶ 10, Ex. 6.) Throughout August, Mariscal recorded additional complaints about

Khungar failing to conduct detailed examinations of patients and missing diagnoses.

(DSOMF ¶¶ 45, 47.)

At some point in September, Mejia decided to recommend that ACHN terminate

Khungar’s employment by not renewing her employment agreement. He contends that he did so

“[b]ased on the number, nature, and severity of complaints from minor patients’ parents

regarding the poor medical care and treatment” Khungar delivered. (DSOMF ¶ 48; id., Ex. F,

Mejia Decl. ¶ 16.) Mejia met with Mariscal, De Jesus, and Whalley on September 28, 2016 to let

them know he would be recommending Khungar’s termination based on parents’ complaints and

that De Jesus, the only other pediatrician, would be responsible for Khungar’s patients after she

left. (DSOMF ¶¶ 49–50.) Mejia then notified Riley and Lilly of the same. (DSOMF ¶ 51;

DSOMF, Ex. K, Sept. 28, 2018 Mejia Email, Dkt. No. 49-11.) At some later point, Riley

reviewed the same complaints that Mejia had seen before ultimately approving the termination

recommendation. (DSOMF ¶ 59; id., Ex. B, Riley Decl. ¶ 6, Dkt. No. 49-2.)

On November 21, 2016, Mejia, Lilly, and Mafla1 met with Khungar and informed her

that ACHN was terminating her employment with a 90-day notice period. (DSOMF ¶¶ 60–61.)

ACHN contends that Mejia then provided Khungar with the 90-day written notice required to

terminate her employment; Khungar, however, contends that she never received the notice and

that she attempted to resign instead. (DSOMF, Ex. E, Mejia Dep. 42:13–43:7; PRSOMF, Ex. 43,

Khungar Dep. 242:3–12.) Later that same day, Khungar emailed Mejia, Lilly, and Mafla to note

that her complaints about inappropriate and culturally insensitive behavior had never been

addressed. (DSOMF ¶ 64.) Mejia responded that he had not known about any of those

allegations prior to the termination meeting and he would forward her email to human resources

for investigation. (DSOMF ¶ 65; id., Ex. II, November 21, 2016 Email Chain, Dkt. No. 49-34.)

Riley then arranged to meet with Khungar to discuss her complaints (though they twice

1 Mafla became interim regional medical director at some point around the end of October or start of

November 2016. (DSOMF, Ex. D, Mafla Dep. 4:21–5:4, Dkt. No. 49-4.) While the parties appear to agree

that Mafla was at the termination meeting on November 21, 2016, the only mention of Mafla’s potential

presence was by Mejia in his deposition, in which he could not recall whether Mafla had attended the

meeting. (DSOMF, Ex. E, Mejia Dep. 43:6–10.)

postponed the meeting due to Khungar being ill), and Riley ultimately terminated Khungar

before the meeting could take place. (DSOMF ¶¶ 69–70.)

On November 30, 2016, Khungar filed a discrimination charge with the Equal

Employment Opportunity Commission (“EEOC”), alleging that she had faced discrimination on

the basis of race, sex, religion, and national origin. (DSOMF, Ex. LL, Nov. 30, 2016 EEOC

Charge, Dkt. No. 49-37.) She contends that she informed Mariscal immediately after she filed

the charge. (PRSOMF, Ex. 43, Khungar Decl. ¶ 20.)

On December 14, 2016, Riley terminated Khungar’s employment, effective immediately,

purportedly as a result of a statement Khungar made on December 10, 2016. ACHN and

Khungar have drastically different interpretations of the December 10 incident. Khungar

contends that she was working with Marcy Sooneva, another ACHN employee, to file

paperwork. (PRSOMF, Ex. 49, Khungar Dep. 289:17–20.) After obtaining government approval

for an extremely expensive and time-sensitive treatment for an infant patient, Khungar asked

Sooneva to scan the document confirming the treatment because Khungar would be departing

before the treatment was complete. (Id. 291:9–292:7.) As Khungar did so, she said that “[i]f

anything happens to this piece of paper, if there’s a fire, if there’s a flood, if somebody rips this

piece of paper, I can’t come back and sign it.” (Id. 292:7–11.) She heard a medical assistant,

Julie Loza, say “don’t do it” but had no idea what Loza meant by it. (Id. 292:12–293:4.) From

Khungar’s perspective, her remark was clearly facetious.

ACHN, however, has a different take on the December 10 incident. Loza, who admits she

was not part of Khungar’s conversation with Sooneva, states that she heard Khungar say

something along the lines of “what will happen if this place got on fire.” (DSOMF, Ex. MM,

Loza Dep. 38:16–39:9, Dkt. No. 49-38.) Loza jumped in to tell Khungar that if she wanted to do

something to the clinic, she should do it when Loza was not present. (Id. 39:20–24.) Loza

appears to have taken Khungar’s statement at least somewhat seriously. The following Monday,

another Kedzie physician, Paula Cavens, apparently overheard Loza discussing the December 10

statement and reported it to Mariscal and Lilly, who subsequently informed Riley. (DSOMF, Ex.

FF, Riley Dep. 68:22–69:21.) On December 14, 2016, Riley visited the Kedzie clinic to

investigate. (Id. 71:3–8.) During her visit, she met with Loza, Cavens, and Khungar, and had

Loza make a written statement about the incident. (Id. 72:1–19.) Riley did not ask Khungar about

the context in which the December 10 statement was made. (Id. 73:20–22.) But Riley did ask

Khungar if she had actually made a statement about the building catching fire after she left. (Id.

73:7–13.) Riley later testified that Khungar responded flippantly. (Id.) According to Riley,

Khungar denied having made the reported statement and instead told Riley that she said “what

happens if the place blows up when I leave?” (Id.) However, Khungar contends that she denied

making any such statement and told Riley that all she said was that the particular paperwork

needed to be scanned in case it happened to be destroyed. (PRSOMF, Ex. 49, Khungar Dep.

303:22–304:5.) At that point, Riley terminated her on the spot and stayed with her as Khungar

packed up her items and left. (DSOMF, Ex. FF, Riley Dep. 66:20–67:11.) Riley subsequently

sent Khungar a letter confirming that Khungar had been terminated for making an inappropriate

statement on December 10. (DSOMF ¶ 81.) Khungar does not deny receiving the letter, but

contends that the reason given was a pretext for her unlawful termination.

DISCUSSION

Under Federal Rule of Civil Procedure 56, the Court grants summary judgment “if 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 do so, the movant must identify

relevant segments from the pleadings, depositions, admissions, affidavits, or answers to

interrogatories that demonstrate the lack of any genuine material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). On the other side, to defeat a summary judgment motion, an opposing

party must respond by setting forth specific facts showing there is a genuine factual issue for

trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there is

a genuine factual issue for trial, the Court must view all evidence in the light most favorable to

and draw all reasonable inferences in favor of the nonmovant. Harney v. Speedway

SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). But the genuineness of a factual

dispute suffices to defeat a motion for summary judgment only “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Lawrence v. Kenosha County,

391 F.3d 837, 842 (7th Cir. 2004) (quoting Anderson, 477 U.S. at 248). The “mere existence of

some alleged factual dispute” does not suffice to defeat a motion for summary judgment.

Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015) (citation and internal quotation marks

omitted).

I. Discrimination Based on Race, National Origin, and Religion (Count I)

In Count I, Khungar claims that ACHN unlawfully discriminated against her based on her

race, national original, and religion.

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

respect to [her] 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). To survive

a motion for summary judgment on a Title VII discrimination claim, a plaintiff must present

“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.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). The

“[e]vidence must be considered as a whole, rather than asking whether any particular piece of

evidence proves the case by itself. . . . Relevant evidence must be considered and irrelevant

evidence disregarded.” Id. Nonetheless, when considering a summary judgment motion, the

Court may utilize the burden-shifting test articulated in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), “as an efficient way to organize, present, and assess evidence.” Johnson, 892

F.3d at 894; see also David v. Bd. of Trs. of Cmty. College Dist. No. 808, 846 F.3d 216, 224 (7th

Cir. 2017) (noting that Ortiz “did not alter” the McDonnell Douglas burden-shifting framework.)

Here, the parties invoke the McDonnell Douglas framework in making their arguments, so the

Court will address the arguments using that framework as well—bearing in mind that the

ultimate question is whether Khungar has presented enough evidence of discrimination to

support a jury verdict in her favor.

A. McDonnell Douglas Prima Facie Case

To establish a prima facie case of discrimination under the McDonnell Douglas

framework, Khungar must demonstrate that (1) she is part of a protected class; (2) her job

performance met her employer’s expectations; (3) she suffered an adverse employment action;

and (4) at least one similarly-situated individual outside her protected class received better

treatment. Simpson v. Franciscan All., Inc., 827 F.3d 656, 661 (7th Cir. 2016). With respect to

the second element, a plaintiff generally must show that she met her employer’s legitimate

expectations unless she alleges that the employer selectively punished her even though other

employees failed to meet expectations. Curry v. Menard, Inc., 270 F.3d 473, 478 (7th Cir. 2001);

Flores v. Preferred Tech. Grp, 182 F.3d 512, 515 (7th Cir. 1999). If a plaintiff establishes a

prima facie case of discrimination, the employer must then “set forth a legitimate

nondiscriminatory reason for [the adverse employment action] which if believed by the trier of

fact, would support a finding that unlawful discrimination was not the cause of the employment

action.” Nichols v. S. Ill. Univ.—Edwardsville, 510 F.3d 772, 783 (7th Cir. 2007) (citation and

internal quotation marks omitted). If the employer does so, the burden shifts back to the plaintiff

to prove that the employer’s proffered reason for the adverse employment action was pretextual.

Walker v. Glickman, 241 F.3d 884, 889 (7th Cir. 2001). To show pretext, the plaintiff must

demonstrate either that her employer’s motive was a discriminatory one or that the proffered

reason is “unworthy of credence.” Zaccagnini v. Charles Levy Circulating Co., 338 F.3d 672,

676 (7th Cir. 2003).

Here, Khungar has satisfied the first element of a prima facie case: she has shown that

she is a member of a protected class due to her race (Asian), her national origin (Indian), and her

religion (non-Christian). She also has satisfied the third element because she suffered an adverse

employment action when ACHN terminated her. Khungar runs into trouble, however, with the

second and fourth elements.

For the second element, Khungar has not adduced sufficient evidence that her

performance met ACHN’s legitimate expectations. With respect to her interaction with patients

alone, ACHN has produced a multitude of complaints from parents contending that Khungar did

not properly treat their children. One complaint, for example, alleges that Khungar failed to

examine the abdomen of a child patient complaining of abdominal pain. (DSOMF ¶ 37; id., Ex.

AA, De Jesus Decl. ¶ 2, Decl. Ex. 1.) Another complaint accuses Khungar of insinuating that a

thirteen-year-old patient was suffering from pelvic pain because she was sexually active and

failing to examine her fully. (DSOMF ¶¶ 10–11; id., Ex. L, Patient Complaint.) Whether these

complaints were solicited by De Jesus and Mariscal, as Khungar contends, is of no moment—

what matters is that the complaints were forwarded to Barron, the regional medical director and

Khungar’s immediate supervisor until mid-2016, and Mejia, the chief medical officer overseeing

providers.2 Both Barron and Mejia attest that they reviewed those complaints, and Mejia states

that he decided to recommend that Khungar be terminated because he believed the complaints

evidenced poor work performance. (DSOMF, Ex. C, Barron Decl. ¶ 3; DSOMF, Ex. F, Mejia

Decl. ¶ 16.) In fact, Mejia noted in an email to Riley and Lilly that he believed Khungar’s poor

performance was putting patients and the organization at high risk. (DSOMF, Ex. K, Sept. 28,

2016 Email Chain.)

Moreover, beyond the patient complaints, Khungar does not dispute that she received a

final written warning on August 18, 2015 for accessing a patient’s file to obtain contact

information for an absent coworker. (DSOMF, Ex. J, Aug. 18, 2015 Letter from Barron.)

Khungar may have had good intentions in doing so—indeed, she contends she was concerned for

the absent employee’s safety. (PRSOM, Ex. 43, Khungar Decl. ¶ 6.) But it remains undisputed

that Barron, her supervisor, considered it to be a serious HIPAA violation worthy of a warning

letter. Khungar therefore cannot dispute that she had at least one mark on her record an entire

year before she was terminated.

Even if Khungar could demonstrate that her work performance was satisfactory, she fails

to identify any similarly-situated individual who received better treatment than she received—the

fourth element of a prima facie case. To do so, she must find coworkers who had a similar set of

disciplinary issues. See Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 751 (7th Cir. 2006)

2 Mafla, Barron’s replacement, was not hired until late October or early November 2016, after many of

the events described had taken place. He testified that he did not follow up with complaints about

Khungar because Mejia was taking care of the situation, and that while normally the regional medical

director was responsible for reviewing complaints, the decision to terminate Khungar had already been

made before Mejia joined ACHN. (DSOMF, Ex. D, Mafla Dep. 27:1–29:17.)

(finding a coworker not to be similarly situated because no “comparable set of failings” existed).

Moreover, to be similarly situated, the Seventh Circuit generally requires two employees facing

disciplinary issues to have “dealt with the same supervisor, [be] subject to the same workplace

rules, and [have] engaged in similar conduct, but nonetheless received disparate treatment for no

apparent legitimate reason.” Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 940 (7th Cir. 2003).

Khungar contends that ACHN treated non-Indian providers more favorably than it treated

her. She uses as two examples medical assistant Angel, who posted private patient information

on Facebook, and De Jesus, who Khungar alleges threatened her. Khungar does not clearly state

that her purported comparators had a different race, national origin, or religion than her, which is

a prerequisite to her disparate treatment claim. But even assuming that Angel and De Jesus are

not members of one or more of the same protected classes as Khungar, she still fails to show that

they are appropriate comparators.

First, with respect to De Jesus, Khungar has adduced no evidence suggesting De Jesus

had any staff or patient complaints filed against her, let alone multiple complaints as was the

case with Khungar. Nor does Khungar suggest that De Jesus committed a HIPAA violation.

Khungar instead offers that, at one point, Barron told Mejia that he thought De Jesus had an issue

with the way she communicated with people. (DSOMF, Ex. E, Mejia Dep. 74:4–9.) Khungaralso

notes that De Jesus had some sort of workplace altercation with a medical assistant, but the only

evidence she cites in support of this claim is Mariscal’s testimony that De Jesus had a falling out

with Gonzalez and that both individuals asked to be placed with other providers. (DSOMF, Ex.

M, Mariscal Dep. 92:15–22.) In sum, the Court sees no evidence of conduct on the part of De

Jesus that comes close to the sort of performance issues Khungar had.

Second, with respect to Angel, Khungar again offers little in the way of comparable

conduct. She contends only that Angel also committed a HIPAA violation and allegedly

threatened Khungar yet was not disciplined. But neither Angel nor Khungar faced termination

for their purported HIPAA violations. Moreover, the suggestion that Angel threatened Khungar

by having Gonzalez tell her that Angel “knows karate” seems to be a stretch—particularly given

that Gonzalez followed up the statement with “lol,” a term commonly understood to mean “laugh

out loud” and used to indicate that a statement is made in jest. Even if Angel did threaten

Khungar, Angel and Khungar worked in entirely different circumstances: Angel was a medical

assistant who reported to Mariscal, while Khungar was a pediatrician who reported to Barron and

Mejia.

In short, Khungar has failed to satisfy her burden of finding at least one other employee

comparable to her “in all material respects.” Burks, 464 F.3d at 751 (citation and internal

quotation marks omitted). Since neither of the individuals Khungar identifies constitutes a

suitable comparator, this provides a second reason that Khungar cannot make out a prima facie

case of discrimination using the McDonell Douglas approach. See McGowan v. Deere & Co.,

581 F.3d 575, 580 (7th Cir. 2009) (“Because [the plaintiff] is unable to demonstrate that a

similarly-situated person not in the protected class was treated more favorably than he was, he

cannot make out a prima facie case of racial discrimination.”).

B. Legitimate Nondiscriminatory Reason and Pretext

As Khungar has failed to establish a prima facie case under McDonnell Douglas, the

Court’s analysis could end there. But even if she could make out a prima facie case, Khungar

still would not survive summary judgment because ACHN has presented a legitimate

nondiscriminatory reason for terminating her and she has not created a triable issue as to whether

that reason was a pretext.

ACHN claims that it terminated Khungar due to her poor work performance and has

adduced ample evidence to support that position. As noted above, there were numerous patient

complaints against Khungar, and some other employees believed that she was putting patient

safety at risk. In addition, Khungar had received a warning for violating patient privacy laws

after she accessed a patient’s file to find contact information for an absent employee.

Khungar contends that Mariscal and De Jesus worked together to solicit the patient

complaints to retaliate against Khungar for complaining about Mariscal’s favoritism toward De

Jesus and other racist comments. But the evidence Khungar cites in support of this narrative is

thin. For instance, to support the contention that Mariscal actively solicited patient complaints,

Khungar points to a line in an email from Mariscal stating “I know we are compiling

information” with respect to Khungar. (PRSOMF ¶ 27.) But when questioned at her deposition,

Mariscal explained that she was told to record incidents and send the reports to her superiors.

(DSOMF, Ex. G, Mariscal Dep. 56:4–15, Dkt. No. 49-7.) It is a significant stretch to read her

comment in the email to imply that Mariscal was not simply compiling information but instead

actively soliciting it from the parents of patients. Since Khungar points to no other support in the

record, the Court cannot make such a leap in logic as to infer that Mariscal and De Jesus were

actively seeking out complaints.

Khungar nonetheless contends that the complaints are entirely pretext and that she was

actually targeted for termination because of her race, national origin, or religion.3 In support of

3 The Court notes that Khungar’s First Amended Complaint does not contain a hostile work environment

or harassment claim, and it does not mention any adverse employment action other than her termination.

this claim, Khungar relies on statements by her coworkers that she claims exhibited their

prejudice and intent to discriminate against her. For example, her fellow employees made fun of

her for her “ethnic cooking” and “Indian religion.” (PRSOMF, Ex. 43, Khungar Decl. ¶ 23.)

However, “[d]erogatory statements made by someone who is not involved in making the

employment decision at issue are not evidence that the decision was discriminatory,” although it

may be possible to infer discriminatory intent if the person who made the statements had input

into the adverse employment action and made the statements around the time of and in reference

to the action. Rozskowiak v. Vill. of Arlington Heights, 415 F.3d 608, 612 (7th Cir. 2005). Here,

none of the allegedly discriminatory remarks about Khungar were made by her supervisors, and

there is no evidence that the individuals who did make the arguably discriminatory remarks had

input into the decision to terminate her. Khungar offers no evidence suggesting that Barron,

Mejia, Mafla, or Riley collaborated with Mariscal to solicit complaints against Khungar or

otherwise discriminate against her. So even if Khungar had adduced sufficient evidence that

Mariscal and other employees manufactured complaints against her because of her race, national

origin, or religion, Khungar has not presented any evidence that would permit a factfinder to

attribute that discriminatory intent to her supervisors. Khungar has, therefore, failed to show that

ACHN’s stated reason for terminating her was pretext.

In sum, Khungar has not presented sufficient evidence of a triable issue of fact on her

discrimination claim. Accordingly, the Court grants summary judgment in favor of ACHN on

Count I.

Thus, her Title VII discrimination claim is based entirely on the adverse employment action of her

termination.

II. Retaliation (Count II)

In Count II, Khungar claims that ACHN terminated her in retaliation for her complaints

about the hostility she faced from her co-workers.

In addition to prohibiting discrimination, Title VII also prohibits employers from

retaliating against employees for engaging in activity protected by the statute. 42 U.S.C.

§ 2000e-3(a). To survive summary judgment on her Title VII retaliation claim, Khungar must

adduce sufficient evidence that “(1) [s]he engaged in an activity protected by the statute; (2)

[s]he suffered an adverse employment action; and (3) there is a causal link between the protected

activity and the adverse action.” Lewis v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018). Similar to

disparate treatment discrimination claims, older retaliation case law distinguished between a

direct method of proof, which relied on a “direct causal link,” and an indirect method, which

relied on the McDonnell-Douglas burden-shifting framework. Id. But the Seventh Circuit more

recently has made clear that those two methods are not separate legal standards but instead “just

means to consider whether one fact . . . caused another.” Id. (quoting Ortiz, 834 F.3d at 764–65).

The fundamental question is simply whether a proscribed factor caused an adverse employment

action. Id. at 866–67 (citing Ortiz, 834 F.3d at 764–65).

Khungar has shown that she engaged in protected activity by reporting discriminatory

statements to her supervisors on three occasions and by filing a charge with the EEOC. See 42

U.S.C. § 2000e-3(a). And Khungar suffered an adverse employment action when ACHN

terminated her on December 14, 2016. But she has failed to establish a genuine issue of material

fact as to whether the protected activity caused her termination. As noted above, there were

numerous patient complaints against Khungar, she had received a written warning for violating

patient privacy laws, and shortly before her termination she made a statement that some

employees took as a threat. The best evidence of causation to which Khungar can point is that

ACHN terminated her about two weeks after she filed an EEOC charge, which could indicate

suspicious timing. But ACHN, in turn, can point to unrebutted record evidence that the person

who made the decision to terminate Khungar did not know about the EEOC charge when he fired

her. (DSOMF ¶ 71; id., Ex. B, Riley Decl. ¶ 7.) See Daza v. Indiana, 941 F.3d 303, 309 (7th Cir.

2019) (explaining that “[a]s a threshold matter, the plaintiff must show that the defendant was

aware of the protected conduct;” only then may suspicious timing alone demonstrate a causal

connection). Given the lack of other reasons to infer a retaliatory discharge—such as similarly-

situated employees who were not fired or more satisfactory job performance by Khungar—the

Court concludes that judgment for ACHN as a matter of law is appropriate as to Count II.

III. Motions to Strike

Before concluding, the Court must also address the parties’ multiple motions directed

toward the record. The Court has left its disposition of these motions to the end because

Khungar’s claims fail regardless of whether the materials about which each side complains are

considered as part of the record, but some explanation for the Court’s rulings is nonetheless

appropriate.

A. ACHN’s Motion to Strike Khungar’s Unemployment Decisions

Motions to strike, while permissible, are generally disfavored because they most often

serve only to delay litigation. See Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286,

1294 (7th Cir. 1989). In this case, ACHN asks the Court to strike as inadmissible hearsay two

exhibits Khungar submitted in support of her response to ACHN’s Local Rule 56.1 Statement: a

2017 decision from the Illinois Department of Employment Security (“IDES”) on Khungar’s

eligibility for unemployment benefits and a 2017 IDES Board of Review decision. (See Dkt. No.

70.) Khungar has offered the decisions to show that the December 10, 2016 incident when she

allegedly made threats toward her employer was not, in fact, misconduct worthy of termination.

Motions to strike should be reserved for matters that are truly redundant, immaterial,

impertinent, or scandalous; they should not be used to assert mere inadmissibility of otherwise

inoffensive evidence. See Fed. R. Civ. P. 12(f); Delta Consulting Grp., Inc. v. R. Randle Constr.,

Inc., 554 F.3d 1133, 1141–42 (7th Cir. 2009). Evidentiary objections are better raised in the

context of the summary judgment filings provided for in Federal Rule of Civil Procedure 56 and

Local Rule 56.1, which, for example, allow a party to respond to a purportedly undisputed fact

by objecting that the fact cannot be presented in a form that would be admissible in evidence. See

Fed. R. Civ. P. 56 (c)(2). Filing a separate motion to strike is generally not helpful, as it simply

multiplies the number of motions and pages of briefing. Indeed, this is the very reason why

motions to strike are considered “disfavored.”

In any case, the Court agrees that the decisions here are unlikely to be admissible at trial

and therefore cannot create a triable issue of material fact. But even considering those decisions

as support for Khungar’s view of the December 10 incident, ACHN still has provided ample

evidence in the form of patient complaints and a purported HIPPA violation that Khungar was

not meeting her employer’s legitimate expectations and that ACHN had a non-discriminatory

reason for terminating her. Nothing in the IDES and Board of Review decisions changes the fact

that Khungar has failed to identify a similarly-situated individual who was treated differently by

ACHN than she was treated. In the end, the Court finds it unnecessary to strike the IDES and

Board of Review decisions. But even considering them, they have no impact on the Court’s

conclusion that ACHN is entitled to summary judgment in its favor. The Court therefore denies

ACHN’s motion to strike those decisions.

B. ACHN’s Motion to Strike Declarations

ACHN has also moved to strike five paragraphs of Khungar’s declaration and all of

Victoria Navarro’s declaration, which Khungar relies on in her response to Defendant’s Rule

56.1 statement and statement of additional facts. (See Dkt. No. 71.) ACHN claims that certain

paragraphs of Khungar’s declaration are inadmissible hearsay or contradict her deposition

testimony, and that each statement in Navarro’s declaration is either inadmissible hearsay,

lacking in foundation, or time barred. ACHN also contends that Khungar improperly failed to

identify Navarro in her initial disclosures as someone who possessed relevant knowledge or

information.

While it asks the Court to strike the offending statements, ACHN appears to rely on

Federal Rule of Civil Procedure 56(c), a procedural rule that allows a party to object to record

evidence in a summary judgment proceeding that could not be presented in an admissible form at

trial but does not expressly provide a means to strike material. See Fed. R. Civ. P. 56(c)(2), (4).

As discussed above, in most circumstances, it is unnecessary for the Court actually to strike

exhibits allegedly containing evidence that could not be admitted in any form at trial. That is the

case here. ACHN’s motion to strike is thus denied.

C. Khungar’s Motion to Strike ACHN’s Reply

As part of its summary judgment briefing, ACHN has submitted a reply in support of its

initial Rule 56.1 statement of material facts—or what it labels as Defendant’s Replies to

Plaintiff’s Responses to Defendant’s Rule 56.1 Statements. (Dkt. No. 75.) Khungar moves to

strike this reply as impermissible under Local Rule 56.1.

The purpose of Local Rule 56.1 is “to have the litigants present to the district court a

clear, concise list of material facts that are central to the summary judgment determination.”

Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015). The Rule permits the

movant to submit a “concise reply” if the opposing party submits “additional material facts.”

L.R. 56.1(a) (emphasis added). It does not, as ACHN contends, provide for a reply in support of

the movant’s initial statement of material facts. Moreover, at no point did ACHN seek leave

from the Court to file its reply statement of material facts, which amounted to 80 pages of

additional material. District courts are “entitled to expect strict compliance with Rule 56.1.”

Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). Accordingly, the

Court grants Khungar’s motion to strike the reply and disregards the reply in its entirety.

D. ACHN’s Remaining Motions

ACHN also moves to substitute Exhibit F in its summary judgment papers on the basis

that it inadvertently submitted Mejia’s declaration without a signature page. (Dkt. No. 76.)

Khungar opposes the request, contending that ACHN is attempting to include new documents

along with the declaration. The Court might be more sympathetic to that concern if the additional

exhibit—Mejia’s declaration—had not already been included in ACHN’s initial submission. (See

Dkt. No. 49-12.) But since the email chain about which Khungar complaints was previously

submitted in its entirety as Exhibit K, the Court finds no prejudice to Khungar and grants

ACHN’s motion to substitute the exhibit.

Lastly, ACHN has filed a motion to file an amended reply that would exceed the page

limit for a brief by one page. (Dkt. No. 83.) ACHN contends that it needs to file an amended

reply to address Khungar’s hearsay evidence in the event that the Court, as it has above, grants

Khungar’s motion to strike ACHN’s impermissible reply in support of its Rule 56.1 statement of

material facts. The Court accepts that ACHN did not realize it needed another avenue in which to

preserve its hearsay objections (other than the improper reply)—although ACHN should have

been aware that, at the very least, it needed to seek leave from the Court to file a reply statement

of material facts and that, therefore, such a filing may not have been the best way to present its

only arguments about hearsay. The Court grants ACHN’s request to file an amended reply and

exceed page limits.

CONCLUSION

For the foregoing reasons, ACHN’s motion for summary judgment (Dkt. No. 50) is

granted. The Clerk will enter Judgment in favor of ACHN and against Khungar. In addition,

ACHN’s motions to strike Khungar’s exhibits and declarations (Dkt. Nos. 70, 71) are denied.

Khungar’s motion to strike ACHN’s improper reply in support of its Rule 56.1 Statement of

Material Facts (Dkt. No. 80) is granted. Finally, ACHN’s motions to substitute Exhibit F (Dkt.

No. 76) and to file an amended reply brief (Dkt. No. 83) are granted.

ENTERED:

Dated: May 7, 2020 b 7 ba opel.

Andrea R. Wood

United States District Judge

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