Williams v. Whitley Memorial Hospital, Inc. d/b/a Parkview Warsaw Medical Complex

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

TRACEY WILLIAMS,

Plaintiff,

v. Case No. 3:21-CV-892 JD

WHITLEY MEMORIAL HOSPITAL, INC.

D/B/A PARKVIEW WARSAW MEDICAL

COMPLEX, et al.,

Defendants.

OPINION AND ORDER

The Defendants, Whitley Memorial Hospital, Inc. d/b/a Parkview Warsaw Medical

Complex and Parkview Health Systems, Inc. (collectively “Parkview”), have moved for

summary judgment on the Plaintiff, Tracey Williams’, claims under Title VII of the Civil Rights

Act of 1964, the Health Insurance Portability and Accountability Act (HIPAA), the Emergency

Medical Treatment and Active Labor ACT (EMTALA), and the Anti-Kickback Act (AKA). (DE

20.) Parkview has also moved to strike some of the evidence Ms. Williams has marshalled in her

response to the motion. (DE 32.)

Ms. Williams has brought three claims against Parkview under Title VII, a hostile work

environment claim (Count I), a sex discrimination claim (Count II), and a retaliation claim

(Count IV). Ms. Williams has also brought a claim for retaliation under the HIPAA, the

EMTALA, and the AKA (Count III). For the following reasons, the Court grants the motion for

Counts I, II, and III but denies the motion for Count IV.

A. Factual Background1

Ms. Williams is a Registered Nurse who was employed by Parkview from June 2015

until her termination on November 19, 2019. (DE 20-2 at 11:20–21, 82:5–6.). Starting in July

2016, and until her termination, Ms. Williams served as the Nursing Manger of the Emergency

Room Department at the Warsaw Medical Complex. (Id. at 12:13–16.) As the Department’s

Nurse Manager, Ms. Williams supervised a staff of around forty employees. (Id. at 13:25–14:2.)

On July 23, 2019, Nurse Kristin Sedlmeyer, a member of Ms. Williams’ staff at Warsaw,

approached Ms. Williams. (Id. at 17:10–18:4.) Nurse Sedlmeyer reported that a physician in the

Emergency Department, Dr. Winther, had inappropriately touched her during an ultrasound by

resting his hand on her clothed genitals, and made inappropriate remarks to her.2 (Id. at 17:10–

18:4, 26:7–18.) Dr. Winther worked at Parkview and was subject to their employee conduct

regulations but was formally employed by Professional Emergency Physicians which provides

physician staff to the emergency room and retained disciplinary authority over their doctors. (DE

20-3 ¶¶ 8–9.) Nurse Sedlmeyer conveyed she did not want to file a complaint with human

resources about the incident but requested Ms. Williams speak to Dr. Winther and get him to

cease his behavior. (DE 20-2 at 27:4–10.) At the time this incident occurred, Parkview had in

place an Anti-Harassment and Complaint Procedure (“Anti-Harassment Policy”) which required

supervisors to report possible harassment situations to human resources. (DE 20-6 at 8–9.) Ms.

1 The Court notes neither party’s brief on the motion for summary judgment includes a factual

background section. (See DE 21, DE 27.) The inclusion of a factual background section in the brief is very

useful to the Court in laying the factual groundwork for the motion, especially in factually dense cases

such as this.

2 Ms. Williams complaint anonymizes the names of these two individuals, as does Parkview’s

motion brief and reply. Ms. Williams’ response brief, however, utilizes their proper names but does not

explain the shift from anonymized names. For maximum clarity, the Court will also refer to these

individuals by their proper names.

Williams knew of the Anti-Harassment Policy but prior to the incident with Nurse Sedlmeyer

had never read it in detail. (DE 20-2 at 35:16–36:5, 145:2–9.)

Ms. Williams spoke privately with Dr. Winther about the allegations sometime later in

July. (Id. at 27:16–19, 28:2–25.) Ms. Williams stated she confirmed the identity of the accuser

during this meeting, Dr. Winther apologized to her and conveyed he wanted to apologize to

Nurse Sedlmeyer as well. (Id. at 28:12–20, 29:14–23.) Following this meeting, Ms. Williams

informed Nurse Sedlmeyer of the meeting, and met with Dr. Gutwein, the Medical Director of

Parkview Warsaw. (Id. 29:25–30:9, 31:19–25.) Ms. Williams reported the details of the situation

to Dr. Gutwein and during the meeting the two decided to report the incident to human resources.

(Id. at 32:4–16.) On August 20, 2019, Ms. Williams met with Kim Harris of Parkview human

resources to report the incident. (Id. at 34:3–11.)

Human resources launched an investigation into the allegation which interviewed fifteen

Emergency Department staff, collected very little feedback about Dr. Winther, and found that the

allegation against Dr. Winther could not be substantiated.3 (DE 27-7 at 32–33.) The investigation

lasted from August 21, 2019, until September 5, 2019, and concluded with a recommendation

that the Warsaw Emergency Department staff undergo harassment in the workplace training

conducted by human resources. (Id. at 33.)

Ms. Williams testified at her deposition that she had experienced inappropriate touching

and comments from Dr. Winther on three occasions. The first incident was one week before

Nurse Sedlmeyer’s complaint, Dr. Winther allegedly grabbed Ms. Williams’ buttocks as she

3 From the investigation notes it is unclear if Nurse Sedlmeyer ever completed an interview or

filed a written statement. The notes indicate that she was unable to complete an attempted interview,

requested to file a written statement, but had not as of August 29, 2019, and the investigation concluded

on September 5, 2019. (DE 27-7 at 32–33.)

walked through a door ahead of him. (DE 20-2 at 19:21–20:15.) The second incident was in

2016, within a few months of her taking the Nurse Manager role at Parkview. Dr. Winther made

inappropriate comments about Ms. Williams’ attire when she stopped by the hospital for a social

visit after using the gym. (Id. at 20:20–21:12.) In particular, Dr. Winther allegedly asked Ms.

Williams if yoga pants were “going to be the new uniform.” (Id. at 21:1–8.) The third incident

involved Dr. Winther’s comment about a photo Ms. Winther kept in her office, in which she was

wearing a bathing suit. (Id. at 139:14–140:4.) Ms. Williams had been instructed to remove the

photograph by her supervisor on the basis it could be offensive to her staff. (Id.) Dr. Winther

allegedly asked about the photograph while conducting rounds with Ms. Williams, and upon

being told it was taken down, he allegedly stated “Well, give it to me. I’ll hang it up in the

doctor’s lounge.” (Id. at 140:5–9.) The incident with the photograph occurred at some point

before Dr. Winther allegedly grabbed Ms. Williams’ buttocks. (Id. at 140: 10–12.) Ms. Williams

testified that she did not report any of these incidents to her supervisors, or Parkview human

resources. (Id. at 21:13–14, 21:21–22, 175:1–10.)

On August 4, 2019, the Parkview Emergency Department had an incident (“the

EMTALA incident”) where a pregnant patient went into preterm labor and the Emergency

Department staff could not provide adequate treatment which resulted in the prematurely born

infant passing away. (Id. at 44:24–47:24.) Ms. Williams was not working on the day of this

incident but learned of it afterward from coworkers. (Id. at 43:10–15.) The death of the infant led

to an investigation by the Centers for Medicare and Medicaid Services (“CMS”) for potential

violation of EMTALA. (DE 20-7 ¶ 5.) The CMS investigation found an EMTALA violation

occurred because the Emergency Department failed to provide for an appropriate transfer to

another facility. (Id. ¶ 6.)

Ms. Williams testified that several times prior to the EMTALA incident she

communicated to coworkers that the Emergency Department was not equipped to handle the

delivery of an infant. (DE 20-2 at 50:22–51:19.) Ms. Williams never submitted any written

complaints about her belief to her supervisors or Parkview leadership. (Id. at 53:19–20.) Ms.

Williams indicates she does not believe she was terminated or placed on a Performance

Improvement Plan (“PIP”) for reporting an EMTALA violation, but believes Parkview placed

her on a PIP because it received an EMTALA violation from CMS. (Id. at 120:19–121:8., DE 26

Response ¶ 62 (Plaintiff’s response to ¶ 62 on p.19–20).)

Ms. Williams also believes Parkview staff inappropriately disclosed HIPAA protected

information to a third party when the mother and infant were transferred to Kosciusko

Community Hospital. (DE 20-2 at 75:10–24.) Believing this was a HIPAA violation, Ms.

Williams reported it to Scott Gabriel, the President of Parkview Whitley Hospital and Parkview

Warsaw. (Id. at 76:11–20.)

Following the EMTALA incident Parkview implemented a remedial action plan (DE 20-

7 ¶ 7.) Ms. Williams was assigned several responsibilities as part of implementing this plan. (DE

20-3 ¶ 21(d).) Ms. Williams, however, was not disciplined or penalized in any way as a result of

the EMTALA incident and Parkview does not attribute any fault to her for causing or

contributing to the EMTALA incident. (Id.)

Also following the EMTALA incident, Parkview conducted a Root Cause Analysis

(“RCA”) which is a meeting of all responsible parties and leadership to review an incident,

ensure all measures were properly taken, and determine whether there were any lessons to draw.

(DE 20-2 at 48: 10–19.) The purpose of the RCA is to determine where improvements can be

made in patient care and is not to assign blame or find fault. (Id. at 49:17–23.) Ms. Williams

sought to attend the RCA for the EMTALA incident but was informed by Jeff Rockett, the Vice

President of Outpatient Services4 at Parkview Warsaw, that he would not include her in the

meeting. (Id. at 60:7–61:10.) Mr. Rockett communicated to Ms. Williams that she was not

invited because Parkview leadership wanted to limit attendance to individuals who were part of

the EMTALA event. (Id. at 65:3–14.) The final composition of the RCA was fourteen

individuals, ten of whom were women, and included members of Ms. Williams’ staff. (DE 20-7

¶ 7, p. 4; DE 20-2 at 63:10 (Ms. Williams’ testimony that her staff was not excluded), 64:2–8

(listing members of her staff who attended).) The individual tasked with leading the committee

was also a woman. (DE 20-7 ¶ 14, p.4.)

Ms. Williams testified that she believed she was excluded from the RCA on the basis of

her sex. (DE 20-2 at 63:6–15.) Ms. Williams believes that Mr. Rockett’s explanation for not

inviting her to the RCA was insincere because individuals from the Parkview Regional Medical

Center, who were not involved in the event, were invited to participate.5 (Id. at 65:16–24.)

Parkview has also proffered the rationale that they excluded Ms. Williams from the RCA

because of concerns she had coached, or would coach, her staff members on questions about any

medical care the pre-viable infant did or did not receive during the EMTALA event. (DE 20-4 ¶

10; DE 20-7 at ¶ 17.) Ms. Williams contends this explanation is implausible given that she and

Parkview agree that neither her nor her staff contributed to the death of the infant, and therefore

there would be no need for coaching responses.

4 Ms. Williams’ testimony referred to him as Vice President of Operations, but this appears to be a

functional description and his formal title is Vice President of Outpatient Services. (See, e.g., DE 20-4 at ¶

9.) From the Court’s review of the record there is no substantive distinction between these titles.

5 Parkview Regional Medical Center is one of the hospitals where the Warsaw staff tried to

transfer the patient when she entered pre-term labor. (DE 20-2 at 46:2–9.)

During the second week of August 2019, Ms. Williams met with the Interim Director of

Nursing to discuss the EMTALA event. (DE 20-2 at 113:3–19.) During this meeting Mr. Rockett

and Mr. Gabriel “abruptly” entered the office and sat down at the table where the meeting was

occurring. (Id.) Neither of these men said anything during the meeting, but Ms. Williams

indicates she nonetheless felt intimidated by their presence because they were her direct

supervisors and she had thus far been excluded from discussions regarding the EMTALA event

and the RCA. (Id. at 114:1–115:21.)

On October 29, 2019, Ms. Williams was placed on a Performance Improvement Plan

(“PIP”) by her supervisor Ashley Wirges. (DE 20-2 at 40:10–12; DE 20-3 ¶ 15.) Ms. Williams’

PIP was scheduled to last thirty days. (DE 20-3 ¶ 19.) Ms. Williams has not identified a similarly

situated male coworker who was placed on a PIP. (DE 20-2 at 88:22–89:8.) Parkview indicates

there were several factors for placing Ms. Williams on a PIP. These included that she failed to

timely escalate Nurse Sedlmeyer’s hostile work environment complaint to human resources, (DE

20-3 at ¶21(a)–(e)), that human resources received negative feedback from Ms. Williams’

subordinates concerning her performance during the course of the investigation into Nurse

Sedlmeyer’s complaint (DE 20-5 at ¶¶ 11–13, DE 20-5 at p.2), and the fact Ms. Wirges received

further negative feedback from Ms. Williams’ subordinates via email and during hospital rounds,

including the fact that she did not foster an environment of trust (DE 20-3 ¶21(c)). Ms. Wirges’

declaration indicates that she felt, based on her interactions with Ms. Williams, that Ms.

Williams was not focused on her responsibilities related to the Remedial Action Plan. (DE 20-3

¶21(d).) Specifically, Ms. Williams did not take ownership of her assigned tasks, and Wirges had

to continually push Ms. Williams to ensure the tasks were completed in a timely manner. (Id.)

Ms. Williams argues that she was one of the highest performers in the Parkview system

for her entire tenure as Nurse Manager. (DE 20-2 at 164:23–165:23.) Ms. Williams specifically

notes her positive results on her Co-Worker Engagement Service (DE 27-20) and her history of

positive annual evaluations from her employer (DE 27-13 at 1–58.). Notably, Ms. Williams’

2019 annual report, which was finalized on July 10, 2019, noted she had managed a number of

relationship issues within her team with mentoring and setting accountabilities. (Id. at 55.) The

report also described her as “well respected by other leaders, physicians, and her staff.” (Id. at

56.)

While the PIP was in place Ms. Wirges met with Ms. Williams several times to discuss

her progress. (DE 20-3 ¶ 26.) Ms. Williams conveyed to Ms. Wirges that she had been struggling

and lying awake at night for being placed on the PIP. (DE 27-9 at 6.) Nonetheless, both Ms.

Williams and Ms. Wirges felt these meetings were productive. ( DE 20-3 ¶ 27; DE 27-9 at 1–3.)

Outside of these meetings Ms. Wirges learned that Ms. Williams was “verbalizing her

discontent” with Parkview leadership. (DE 20-3 ¶¶ 28–29.) These actions include Ms. Williams

allegedly contacting Angela Jacobs, the Medical Surgical Manager Nurse at Parkview Whitley,

and encouraging her to file a hostile work environment complaint. (DE 20-2 at 91:22–93:16,

93:20–94:4.) Ms. Wirges was informed of Ms. Williams’ communication with Ms. Jacobs by

Erin Goldsberry, the Vice President of Parkview Noble, who reported the contact had occurred

and Ms. Williams was “shit stirring.” (DE 20-3 ¶ 29.) Ms. Goldsberry likewise communicated

that Ms. Williams had expressed an opinion that she was dissatisfied with the leadership of Scott

Gabriel and Jeff Rockett, and that Ms. Williams was allegedly contacting other disgruntled

Parkview employees to “form a coalition against Parkview management.” (Id.)

Ms. Wirges’ notes, dated November 13, 2019, indicate she received a phone call from

another executive level administrator (presumably Ms. Goldsberry) who reported receiving a

phone call from a female manager at Whitley (presumably Ms. Jacobs). (DE 27-9 at 3.) The

Whitley manager reported that she received a call from Ms. Williams with an overarching theme

of “I see how you are being treated and it’s not right” and that Ms. Williams indicated she

planned to file something with corporate and the manager could join her in filing. (DE 27-9 at 3.)

Ms. Wirges noted her thought that this frame of discussion was contrary to Parkview’s standard

of behavior “Together We’re Better” and Ms. Wirges’ belief this policy discouraged managers

from framing issues in a “us” versus “them” attitude. (Id.) Ms. Wirges notes also indicate that

Ms. Wirges communicated these beliefs and expectations to Ms. Williams during a meeting to

discuss the PIP. (Id.)

Ms. Wirges concluded this behavior showed Ms. Williams was unwilling to accept her

coaching and her aid in overcoming performance issues. (DE 20-3 at ¶ 31.) Ms. Wirges then

made the decision to terminate Ms. Williams with the input of Mr. Rockett and Mr. Gabriel. (Id.)

Parkview’s position is that they terminated Ms. Williams due to her poor job performance and

unwillingness to accept coaching to correct her performance issues. (Id. ¶¶ 31, 33.) Ms. Williams

was offered the opportunity to resign and receive a severance package on November 20, 2019.6

(Id. ¶ 32.) Ms. Williams did not accept this offer and her termination was finalized on December

17, 2019. (Id.) This meeting occurred within one week after Ms. Williams said she encouraged

Ms. Jacobs to report her hostile work environment complaint. (DE 20-2 at 121:9–13.)

6 Ms. Williams contends she was told she was being terminated at this meeting and was offered a

severance package option immediately after being orally terminated. (DE 20-2 at 98:4–6, 100:12–23.) No

matter what exactly was said during this meeting, the parties seem to agree that on November 29, 2019,

everyone involved was aware Ms. Williams’ employment with Parkview was ending and December 17,

2019, was the formalization of that understanding.

On August 12, 2020, Ms. Williams filed a charge with the Indiana Civil Rights

Commission. (DE 20-2 at 107:9–108:8.) The charge was drafted for Ms. Williams by the Equal

Employment Opportunity Commission (“EEOC”) through the administrative complaint process.

(Id. at 107:2–22.) The EEOC determined it would not proceed with its investigation and

provided Ms. Williams with notice of her right to sue on August 31, 2021. (DE 20-6 ¶ 13, p.66–

70.) On October 26, 2021, Ms. Williams filed her civil complaint in Indiana state court (DE 5)

and the case was removed to this Court on November 24, 2021. (DE 1.)

B. Parkview’s Motion to Strike (DE 32)

Prior to resolving the motion for summary judgment, the Court will address the motion to

strike.

Parkview has also moved to strike Plaintiff’s Exhibit Y (DE 27-27) as inadmissible

hearsay, and portions of Ms. Williams response to Parkview’s Statement of Material Facts (DE

27) and her Additional Material Facts (Id.)7 to be stricken for lacking citations to the record as

required by the Local Rules. (DE 32.) As the second target of the motion, Parkview asks the

Court to strike paragraphs 78, 79, and 129 of the response, and paragraph 129 of the Additional

Material Facts. Parkview also requests that the Court strike portions of several paragraphs which

are allegedly argumentative and unsupported by the record but embedded in factual content.

Specifically, portions of response paragraphs 103, 108, 143, and Additional Material Facts

paragraphs 103, 80, 81, and 108.

7 Pursuant to Local Rule, Ms. Williams Statement of Additional Material Facts is a subsection of

her response to Parkview’s Statement of Material Facts.

Ms. Williams does not substantively respond to this motion, rather she argues that it is

procedurally improper based on this District’s Local Rule 56. She points to Local Rule 56-1(f)

which became effective on February 25, 2022. This rule directs parties to address issues of

admissibility or materiality of evidence in their summary judgment briefs and prohibits parties

from filing separate motions to strike. N.D. Ind. L.R. 56-1(f). The previous version of the Rule

required the parties to raise such disputes in separate motions to strike.8 N.D. Ind. L.R. 56-1(e)

(Nov. 18, 2019, Ed.). Parkview did not file a reply brief addressing this argument.

The Court will deny this motion as moot. Beginning with Exhibit Y, the Court did not

need to consider this piece of evidence in resolving the motion for summary judgment. Exhibit Y

is an excerpt of a text message conversation between Ms. Williams and a coworker, Angela

Jacobs, regarding Ms. Jacobs intentions to report she was experiencing a hostile work

environment to Parkview with Ms. Williams’ encouragement. Further, it is unclear why the

parties are disputing the admissibility of this evidence given, as previously discussed, Parkview

has conceded this conversation took place and they were aware of it when they chose to

terminate Ms. Williams. As the parties have agreed this conversation happened and Parkview

was aware of it, there is no need for the Court to determine the admissibility of the evidence to

consider that fact.

The Court now turns to the second target of the motion to strike, specific portions of Ms.

Williams’ response to Parkview’s Statement of Material Facts and Ms. Williams’ Additional

Material Facts. These portions allegedly lack citations to the record in violation of Local Rules

56-1(b)(2)(C) and 56-1(b)(2)(D)(ii). The Court finds that all of the challenged text previously

8 The Court will note that Parkview does refer to the Motion to Strike in their summary judgment

reply brief but does not restate the substantive arguments. (DE 30 at 9 n.2.)

described constitutes legal argument or legal conclusion about the facts. Under no circumstances

would the Court consider the parties’ legal conclusions as statements of fact, which means none

of the challenged content would factor into the Court’s consideration of the motion for summary

judgment.9 The Court will disregard any apparent legal conclusions and independently apply the

law to the facts, which makes the request to strike moot. See Pfeil v. Rogers, 757 F.2d 850, 862

(7th Cir. 1985); see also Paniaguas v. Aldon Cos. Inc., 2006 WL 2568210, *4 (N.D. Ind. Sept. 5,

2006) (when considering a motion to strike portions of an affidavit in support of a motion for

summary judgment, courts will only strike and disregard the improper portions of the affidavit

and allow all appropriate recitations of fact to stand).

Accordingly, Parkview’s motion to strike (DE 32) is DENIED as moot.

C. Legal Standard

On summary judgment, the burden is on the moving party to demonstrate 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). That means that the Court must construe all facts in the light most

favorable to the nonmoving party, making every legitimate inference and resolving every doubt

in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is

not a tool to decide legitimately contested issues, and it may not be granted unless no reasonable

jury could decide in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

9 Of course, the Court will still consider legal arguments the parties properly present in their

briefs. The Court’s action of striking or disregarding legal argument improperly placed in the Statement

of Material Facts does not reflect the Court’s view on the merits of that argument.

However, a party opposing a properly supported summary judgment motion may not rely

merely on allegations or denials in its own pleading, but rather must “marshal and present the

court with the evidence she contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,

621 F.3d 651, 654 (7th Cir. 2010). There must be more than a mere scintilla of evidence in

support of the opposing party’s position and “inferences relying on mere speculation or

conjecture will not suffice.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir.

2009); Anderson, 477 U.S. at 252. Instead, the opposing party must have “evidence on which the

jury could reasonably find” in his or her favor. Anderson, 477 U.S. at 252.

D. Discussion

Title VII of the Civil Rights Act of 1964 prohibits employers from “discriminat[ing]

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Ms. Williams has

brought three claims against Parkview under Title VII: a hostile work environment claim (Count

I), a sex discrimination claim (Count II), and a retaliation claim (Count IV). Ms. Williams has

also brought a claim for retaliation under the HIPAA, the EMTALA, and the AKA (Count III).

Parkview has moved for summary judgment on all four counts.

(1) Ms. Williams has conceded she has no legal claim under the EMTALA, the

HIPAA or the AKA and that Parkview is entitled to summary judgment on Count III

Parkview argues that they are entitled to summary judgment on Count III of Ms.

Williams’ complaint because she cannot bring a claim against them under either HIPAA or

EMTALA and she has not asserted a claim under the AKA.10 Ms. Williams has not responded to

these arguments in her response brief. Accordingly, she has waived these arguments and the

Court will grant summary judgment to Parkview. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466

(7th Cir. 2010) (Failure to respond to an argument results in waiver); Rangel v. Schmidt, 2011

WL 4496506, *12 (N.D. Ind. Sept. 27, 2011) (“when a party fails to respond to an issue raised in

a summary judgment motion, the issue is deemed abandoned and waived”).

The Court will briefly explain the reasoning and legal authority behind each of

Parkview’s arguments. Starting with the HIPAA, Parkview correctly argues that there is no cause

of action for private citizens, such as Ms. Williams, to enforce the Act. Rather, the enforcement

right of action is limited to the United States of America and the Attorneys General of the several

states. Lundell v. Reg'l, 2013 WL 633319, at *2 (N.D. Ind. Feb. 20, 2013). Turning to the

EMTALA, Parkview argues that Ms. Williams cannot bring a claim for retaliation under the

whistleblower protection provisions of that statute because she did not report a violation.

Parkview has cited to legal authority which supports this proposition. See Genova v. Banner

Health, 734 F.3d 1095, 1099 (10th Cir. 2013) (EMTALA’s whistleblower protection provision

“permits suit only when the plaintiff was harmed by or reported an existing EMTALA violation,

not an impending one.”). Ms. Williams does not dispute that she seeks protection under the

statute for reporting an impending violation. Finally, the AKA. Parkview argues they are entitled

to summary judgment on this claim because Ms. Williams has failed to develop it. Specifically,

Ms. Williams’ complaint makes two passing references to an “Anti-Kickback Act” but never

10 Parkview also argues that the HIPAA and EMTALA claims are procedurally barred because

they were not raised in her EEOC complaint. Generally, the Court would resolve a procedural question

before the substantive question, but in light of Ms. Williams concession on the merits of the legal

argument the procedural question is moot. Thus, the Court assumes, without deciding, Ms. Williams

could permissibly raise the HIPAA and EMTALA claims in her complaint and will dismiss them on the

merits.

refers to a specific statutory provision, nor explains what conduct violates this act or why she has

a right to bring suit under it. (DE 5 at 2, 10.) The Court agrees that Ms. Williams has failed to

state a claim by not describing the cause of action or including how the facts satisfy the

elements.11 See Shipley, 947 F.3d at 1062–63.

As a result, the Court grants Parkview summary judgment on Count III of Ms. Williams

complaint.

(2) Ms. Williams hostile work environment claim was timely filed, but she has

failed to state a prima facie case (Count I)

Parkview argues they are entitled to summary judgment on Ms. Williams’ hostile work

environment claim because two procedural defects bar her from bringing the claim, and, on the

merits, she has failed to state a claim which survives summary judgment. The Court will address

the procedural arguments and, if necessary, advance to the merits. The two procedural arguments

are: (1) Ms. Williams failed to raise a hostile work environment claim in her charge of

discrimination to the EEOC and (2) Ms. Williams’ hostile work environment claim is time

barred because she filed her EEOC charge regarding this claim outside the statute of limitations.

(a) Ms. Williams raised her hostile work environment claim in her EEOC charge

11 It is possible Ms. Williams was referring to the federal criminal statute codified at 42 U.S.C.

§ 1320a–7b(b). That statute is commonly known as the Anti-Kickback Act and regulates payments in

federal healthcare programs. If Ms. Williams was speaking of this statute, her claim would fail as that law

does not have a private right of action. DeBartolo v. Healthsouth Corp., 569 F.3d 736, 738–39 (noting that

statute is known as the Anti-Kickback Act and Seventh Circuit precedent holds there is no private right of

action).

Parkview first argues that Ms. Williams’ hostile work environment claim should be

dismissed, because her charge with the EEOC failed to raise a hostile work environment claim

that included the specific “term hostile work environment.”

As a precondition to filing claims under Title VII, a plaintiff is required to file a charge

with the EEOC. Huri v. Off. of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826,

831 (7th Cir. 2015) (citing Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013)).

That said, Courts review the scope of an EEOC charge liberally. Id. (internal citation omitted).

The charge is not required to include every fact that, “individually or in combination, forms the

basis of a subsequent lawsuit's claims.” Id. (citing Cheek v. Western and Southern Life Ins. Co.,

31 F.3d 497, 500 (7th Cir. 1994)). Rather, to be cognizable in federal court the Title VII claim

merely has to be “like or reasonably related to the allegations of the charge and growing out of

such allegations.” Id. (quoting Cheek, 31 F.3d at 500).

Ms. Williams’ claim clears this modest hurdle. Ms. Williams EEOC charge does not

utilize the phrase “hostile work environment,” but it alleges most of the same incidents of

harassment contained in her Title VII claim perpetrated by the same actors. Specifically, her

placement on a PIP and exclusion from the RCA. (Compare DE 5 at 7–8 (civil complaint) with

DE 20-6 at 66–70 (EEOC charge)).

Further, Huri expressly rejected the idea that a plaintiff’s failure to use the phrase “hostile

work environment” in her EEOC charge is dispositive. 804 F.3d at 832. Ms. Huri, like Ms.

Williams, did not use the phrase hostile work environment in her EEOC charge. Id. But she

alleged she had endured harassment based on her religion and national origin over the course of

her employment. Id. The Seventh Circuit noted that the term harassment was frequently used to

describe the conduct which makes up a hostile work environment and that it would not penalize

Ms. Huri for “describing her plight with the same interchangeable phraseology frequently used

by this Court.” Id. As such, the Court will not punish Ms. Williams for failing to use the phrase

“hostile work environment” in her EEOC charge.

Accordingly, the Court will deny Parkview’s request for summary judgment on

exhaustion.

(b) Ms. Williams’ hostile work environment claim is not barred by the statute of

limitations

Parkview’s second procedural argument is that Ms. Williams hostile work environment

claim is time barred because she filed her charge with the EEOC more than 300 days after the

last underlying event.

In deferral states12 such as Indiana, a plaintiff who asserts Title VII claims has 300 days

from the alleged discriminatory or retaliatory act to file a time charge of discrimination with the

EEOC. Chatman v. Bd. of Educ. of City of Chicago, 5 F.4th 738, 744 (7th Cir. 2021). A

defendant may invoke a plaintiff’s failure to timely file a charge with the EEOC as an affirmative

defense. Id. When the statute of limitations begins to toll is not necessarily a straightforward

question, as the Supreme Court has held that the continuing violation doctrine can reset the clock

based on repeated employer violations.

In National Railroad Passenger Corp. v. Morgan, the Supreme Court explained when a

plaintiff may rely on the continuing violation doctrine to recover for discriminatory acts that fall

12 The normal statute of limitations for filing with the EEOC is 180 days, but it is expanded to 300

days if the complainant files their charge with the appropriate state or local agency. See 42 U.S.C. § 2000e-

5(e)(1) (Title VII statute of limitations). The parties do not dispute Ms. Williams is entitled to the 300-day

window.

outside the 300–day limitations period. 536 U.S. 101 (2002). The doctrine operates differently

according to the type of discriminatory act alleged—“discrete” discriminatory acts or acts

contributing to a hostile work environment. Morgan, 536 U.S. at 114–15. The Supreme Court

gave examples of discrete acts including “termination, failure to promote, denial of transfer, or

refusal to hire.” Id. at 114.

The Court explained that each discrete act starts a “new clock” for filing charges and the

clock starts on the date the act occurred. Id. at 113. Further, “any discrete discriminatory acts that

fall outside the statute of limitations are time-barred even though they may relate to other

discrete acts that fall within the statute of limitations.” Lucas v. Chi. Transit Auth., 367 F.3d 714,

723 (7th Cir. 2004) (citing Morgan, 536 U.S. at 112–13.) Likewise, a timely filed discrete act

“cannot save discrete acts that are related but not timely filed.” Id. (citing Morgan, 536 U.S. at

112.)

The Court then distinguished discrete acts from a second category of acts, those

contributing to a hostile work environment. Lucas, 367 F.3d at 724. These claims involve

“repeated conduct” which “may not be actionable on its own.” Id. (quoting Morgan, 536 U.S. at

115). Instead, “such claims are based on the cumulative effect of individual acts.” Id.

Consequently, the incidents constituting a hostile work environment are part of a single unlawful

employment practice and “provided that an act contributing to the claim occurs within the filing

period, the entire time period of the hostile work environment may be determined by a court for

the purposes of determining liability.” Id. (quoting Morgan, 536 U.S. at 117.)

The parties do not dispute that Ms. Williams filed her EEOC charge on August 12, 2020.

Nor do the parties dispute that 300 days prior would be October 17, 2019, or that the continuing

violation doctrine applies given Ms. Williams is alleging a hostile work environment. Instead,

the parties dispute when the last act contributing to the hostile work environment occurred.

Parkview suggests that September 1, 2019, is the most accurate estimate given, by

Parkview’s account, all five acts of harassment Ms. Williams alleged occurred during or before

August 2019. Parkview argues those five acts are (1) Ms. Williams being sexually harassed by

Dr. Winther sometime before July 2019, (2) Ms. Williams being told by management she

mishandled Nurse Sedlmeyer’s harassment complaint in August 2019, (3) Ms. Williams being

excluded from the RCA on August 6, 2019, (4) Ms. Williams having an “intimidating meeting”

with two superiors in August 2019, and (5) Ms. Williams’ alleged warnings to Parkview about

its inability to deliver a pre-viable fetus before the EMTALA event of August 4, 2019. (DE 21 at

4; DE 30 at 2–3.)

Ms. Williams replies that this list is incorrect and misses events which would render her

claim timely. Namely, her placement on a PIP on October 29, 2019, and her termination by

Parkview on November 19, 2019. (DE 27 at 12, 26; see also DE 5 at 7 (incorporating by

reference her placement on a PIP and termination as hostile work environment acts), 5–6

(describing that her placement on the PIP as a part of her hostile work environment claim).)

Parkview’s reply brief does not address Ms. Williams’ argument. Instead, Parkview

restates its belief that the hostile work environment claim only consists of the five acts

enumerated in their principal brief, indifferent or unaware of the contrary characterization in Ms.

Williams’ complaint and her response. This is unhelpful briefing, but the Court’s own research

of the question has found sufficient guidance to decide the argument

In Boss v. Castro, the Seventh Circuit held that implementing a PIP is not a materially

adverse employment action in the discrimination context. 816 F.3d 910, 918 (7th Cir. 2016)

(collecting cases). The court then stated that a “legitimate, non-pretextual” PIP could not support

a hostile work environment claim. Id. at 920. But this passage of Boss implies that placing an

employee on a PIP may be an act of harassment contributing to a hostile work environment when

the PIP is illegitimate or is pretextual. Id. at 920.13 In addition, a fellow Judge within this district

has found that while a negative performance review or placement on a PIP alone is not sufficient

to constitute an adverse employment action, these events can be part of an actionable hostile

work environment claim. Jain v. Int’l Trucking and Engine Corp., 2007 WL 2904088, at *10

(N.D. Ind. 2007).

In light of this authority, the Court finds the last act of alleged harassment underlying the

hostile work environment claim was Parkview placing Ms. Williams on a PIP on October 29,

2019, which is within 300 days of when Ms. Williams filed her EEOC charge. Accordingly, Ms.

Williams timely filed her EEOC charge, and Parkview is not entitled to summary judgment on

the basis of the statute of limitations.

Having rejected Parkview’s procedural arguments, the Court will now advance to the

merits of Ms. Williams’ hostile work environment claim.

(c) Ms. Williams has failed to state a prima facie case for her hostile work

environment claim

Turning to the merits of Ms. Williams’ hostile work environment claim, the Court finds

Parkview is entitled to summary judgment.

13 The parties did not sufficiently brief the issue of whether failure on the merits of the only act

within the statute of limitations that is a continuing violation case renders the entire claim time-barred or

how the equitable tolling argument Ms. Williams raised would apply to that situation. Therefore, in an

abundance of caution, the Court will analyze the hostile work environment claim on the merits, though it

notes the ultimate ruling is the same under either approach.

To have her hostile work environment claim survive summary judgment, Ms. Williams

must present evidence of four elements: (1) unwelcome harassment, (2) based on a protected

characteristic, (3) that was so severe or pervasive as to alter the conditions of employment and

create a hostile or abusive working environment, and (4) a basis for employer liability.

Demkovich v. St. Andrew the Apostle Par., 3 F.4th 968, 977 (7th Cir. 2021) (en banc) (citing

Howard v. Cook Cty. Sheriff’s Off., 989 F.3d 587, 600 (7th Cir. 2021)). A successful hostile

work environment claim based on sexual harassment need not involve sexual conduct, but can be

successful by showing the work environment was sexist. Swyear v. Fare Foods Corp., 911 F.3d

874, 880 (7th Cir. 2018).

Parkview argues that Ms. Williams has not established the third and fourth elements of

this claim related to her alleged harassment by Dr. Winther. Parkview also argues that the

remaining incidents Ms. Williams complains of do not satisfy the first, second, or third elements.

The Court will use the same grouping to discuss Ms. Williams’ claim and begin with the

incidents involving Dr. Winther.

(i) Ms. Williams has not established employer liability for her alleged harassment

by Dr. Winther

The Court agrees with Parkview that Ms. Williams has not established employer liability

regarding her alleged harassment by Dr. Winther. As a reminder, Ms. Williams alleges Dr.

Winther sexually harassed her three times: commenting on workout clothes sometime in 2016,

commenting on her bathing suit photo at some unspecified time, and grabbing her buttocks in

July 2019.

The inquiry for employer liability under Title VII begins with determining whether the

harassment was caused by a coworker or a supervisor. An employer can be liable for hostile

work environment claims either through strict liability, which is incurred when a supervisory

employee is involved in the unlawful employment practice, or through negligence which is

incurred when the employer is “negligent in either discovering or remedying the harassment

[perpetrated by others, such as coworkers or customers].” Johnson v. Advoc. Health & Hosps.

Corp., 892 F.3d 887, 904 (7th Cir. 2018). In determining whether an employer was negligent, the

Court asks whether they took “prompt and appropriate corrective action reasonable likely to

prevent the harassment from recurring.” Id. at 906 (quoting Cole v. Bd. of Trustees of N. Illinois

Univ., 838 F.3d 888, 898 (7th Cir. 2016).

Further, an employer cannot be expected to correct sexual harassment unless the

employee makes a concerted effort to inform the employer that a problem exists. Perry v. Harris

Chernin, Inc., 126 F.3d 1010, 1014 (7th Cir. 1997). Therefore, notice or knowledge of the

harassment is a prerequisite for liability. Id. To survive summary judgment, the plaintiff must

present evidence to show that she gave the employer enough information to make a reasonable

employer think there was some possibility that she was being sexually harassed. Zimmerman v.

Cook Cty. Sheriff’s Dept., 96 F.3d 1017, 1019 (7th Cir. 1996). It is also possible to establish

notice through the complaints of other employees or inferring knowledge based on the “sheer

pervasiveness” of the harassment. Id. As the Court will discuss however, based on the currently

constituted record, the only manner in which Parkview could have learned of Ms. Williams

alleged harassment was through her reporting it.

As for Ms. Williams’ alleged harassment by Dr. Winther, the parties do not dispute he

was Ms. Williams’ coworker14 and Ms. Williams admits that she never informed her supervisors

or human resources of any of these harassing acts. With no other argument, this lack of notice to

Parkview of Dr. Winther’s behavior would preclude Ms. Williams from building a hostile work

environment claim off those actions.

Recognizing this issue, Ms. Williams argue that employer liability exists because

Parkview was negligent in their investigation of Nurse Sedlmeyer’s complaint and but for that

negligence they would have discovered that Ms. Williams was also harassed. To begin, Ms.

Williams does not proffer any case law to support the proposition that an employer becomes

categorically liable to Employee A for failing to discover Employee A was harassed while

investigating the harassment complaint filed by Employee B, no matter what that investigation

finds. This Court has previously noted it is skeptical of unexplained assertions that investigations

into incidents involving one coworker should have discovered conduct related to a plaintiff. See

Owens v. Forest River Mfg., LLC, 2022 WL 4535425, at *7 n.7 (N.D. Ind. Sept. 28, 2022).

Ms. Williams advances three arguments on why Parkview’s investigation was negligent:

(1) they did not interview Ms. Williams about her experience with Dr. Winther, (2) Dr. Winther

was not terminated or disciplined as a result of the investigation despite evidence corroborating

Nurse Sedlmeyer’s claim, and (3) Dr. Winther was later investigated a second time and Parkview

took disciplinary action. None of these arguments persuade the Court that Parkview’s

14 Ms. Williams response objects to Parkview’s use of the term “co-employee” to describe Dr.

Winther in their briefing, but ultimately notes the term is interchangeable with coworker as used in the

case law. (DE 27 at 20.) The Court agrees the two terms are interchangeable and notes Ms. Williams does

not allege that Dr. Winther was a supervisor.

investigation was negligent or that they otherwise failed to take prompt and appropriate

corrective action. Johnson, 892 F.3d at 906.

As to the first argument, Ms. Williams never explains why she should have been

interviewed as part of a reasonable investigation into Dr. Winther’s harassment of Nurse

Sedlmeyer. From the facts laid before the Court, Ms. Williams, in her role as Nurse Sedlmeyer’s

supervisor, elevated a complaint of sexual harassment to Parkview human resources. Human

resources then investigated, including interviewing fifteen Emergency Department staff about

the allegations. At no point does it appear any witness provided information to the investigators

suggesting Ms. Williams had faced sexual harassment or that Ms. Williams had personal

knowledge of the events underlying the complaint. Nor does the record suggest Ms. Williams

provided such information to human resources. Without any more explanation from Ms.

Williams, it is hard to discern a motive for human resources to interview a supervisor who has no

personal knowledge of the allegation being investigated and whose only involvement seems

limited to the ministerial duty of advancing a subordinates’ complaint.

On the second argument, Ms. Williams’ disagreement with the result of the investigation

does not make it negligent. More importantly, the Court is unsure what bearing this investigation

has on Ms. Williams’ claims given she does not meaningfully argue, and no evidence suggests

that any of her alleged harassment was or should have been discovered during this particular

investigation. To recap, after completing its investigation, human resources concluded that the

accusation against Dr. Winther could be not substantiated yet recommended that the entire staff

receive sexual harassment training. Ms. Williams argues this result is negligent as five nurses

provided some substantiation for Nurse Sedlmeyer’s complaint, and the failure to terminate Dr.

Winther shows negligence in remedying his behavior. The Court would take a moment to

elaborate on these five accounts. While the five nurses indicate having heard of the alleged

incident between Nurse Sedlmeyer and Dr. Winther, with some being informed by Nurse

Sedlmeyer of her experience and others hearing of it secondhand, none witnessed it or otherwise

reported observing misconduct by Dr. Winther towards Nurse Sedlmeyer, themselves, or Ms.

Williams. (DE 27-7 at 1, 5, 12, 15, 27.) Also, as previously noted, it is unclear from the record

whether Nurse Sedlmeyer fully participated in the investigation.

Nothing about these five accounts indicates Parkview was negligent for not interviewing

Ms. Williams or failing to discover her experience with Dr. Winther. None of the interviewees

mentioned any problems between Ms. Williams or Dr. Winther, nor did they raise additional

allegations of misconduct besides Nurse Sedlmeyer’s. Phrased another way, there is no evidence

that any leads emerged in the investigation of Nurse Sedlmeyer’s complaint which would have

pointed investigators to the incidents involving Ms. Williams. It is not negligence to fail to

pursue non-existent leads. If, counterfactually, one of the nurses had reported Dr. Winther

previously harassed Ms. Williams or was a chronic harasser of other females in the Emergency

Department and Parkview opted against following up, then that would be the beginning of a

claim of negligence for Ms. Williams. But those are not the facts of this case.

Again, Ms. Williams does not explain why she should have been interviewed as a part of

this investigation. There remains no explanation of why Parkview would have been aware of Ms.

Williams’ issues with Dr. Winther, and no evidence in the record fills in the gap either. Thus, the

Court cannot conclude Parkview negligently failed to discover Dr. Winther’s alleged harassment

of Ms. Williams in its investigation of Nurse Sedlmeyer’s complaint.

Ms. Williams’ third argument is also without merit. In June 2020, well after the

Sedlmeyer investigation had concluded on September 5, 2019, (DE 27-7 at 33), and well after

the three incidents involving Ms. Williams, another complaint was brought against Dr. Winther

by two nurses. (DE 27-3 at 1–2.) These nurses alleged a series of sexually harassing acts by Dr.

Winther in October and November 2019, and April 2020. Based on the multiple substantiated

allegations of inappropriate behavior in this new complaint, while also noting Dr. Winther had

been investigated for sexual harassment less than a year prior, human resources recommended

that he lose his employment privileges at Parkview. (Id. at 2.) The fact Parkview reached a

different conclusion in the second investigation after learning of events which occurred after the

initial investigation concluded is not evidence that the first investigation was negligent.

Undoubtedly, the negligence standard does not demand employers retain precognitive human

resources investigators to detect future employee harassment. The Court is thus unpersuaded that

Parkview terminating Dr. Winther’s privileges for his conduct after the second investigation

proves that initial investigation was negligent.

Accordingly, the Court finds that Ms. Williams has not established employer liability for

her alleged sexual harassment by Dr. Winther because she has not established Parkview had

sufficient knowledge of his conduct.

(ii) Dr. Winther’s conduct does not rise to the level of severe and pervasive

harassment

In the alternative, Parkview would be entitled to summary judgment as Ms. Williams has

not shown Dr. Winther’s conduct meets the legal threshold of severe or pervasive harassment.

The third element of a hostile work environment claim requires the unwelcome conduct

to be severe or pervasive from both a subjective and an objective point of view. Howard v. Cook

Cty. Sheriff’s Off., 989 F.3d 587, 600 (7th Cir. 2021). To be considered severe or pervasive

enough to create a hostile work environment, the conduct at issue must be “extreme.” Id.

(internal quotations omitted). This test is not, and by its nature cannot be, “mathematically

precise.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). Determining whether

conduct rises to this level is a fact intensive inquiry which requires evaluating the totality of the

circumstances. Demkovich, 3 F.4th at 977. This includes “‘the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's work performance.’”

Howard, 989 F.3d at 600 (quoting Harris, 510 U.S. at 22). Further, “isolated and minor incidents

of questionable conduct generally will not warrant a conclusion of sexual harassment.” Hilt-

Dyson v. City of Chicago, 282 F.3d 456, 463 (7th Cir. 2002) (internal citation omitted).

Dr. Winther’s conduct does not satisfy this standard. Dr. Winther’s conduct was

somewhat infrequent, with three events over the course of three years which weighs against

finding it to be severe or pervasive. Patt v. Fam. Health Sys., Inc., 280 F.3d 749, 752 (7th Cir.

2002) (eight sexual comments made by a handful of individuals over several years were too

isolated and sporadic to constitute severe or pervasive harassment; Filipovic v. K&R Exp. Sys.,

Inc., 176 F.3d 390, 398 (7th Cir. 1999) (four national-origin comments made over the course of

more than a year were too infrequent to sustain a hostile work environment claim).

The severity of Dr. Winther’s conduct is more favorable to Ms. Williams’ argument but

is still not enough to create a claim. Dr. Winther’s two verbal statements were not physically

threatening or humiliating to Ms. Williams, and as offensive utterances, do not weigh strongly in

favor of finding a severe or pervasive environment. Harris, 510 U.S. at 23 (courts should

consider whether a statement is “physically threatening or humiliating, or a mere offensive

utterance”).

Dr. Winther’s act of grabbing Ms. Williams’ buttocks, as an act of physical touching, is

more severe than mere verbal conduct. Still, offensive physical touching does not automatically

create a hostile work environment claim and “[p]hysical harassment lies along a continuum just

as verbal harassment does.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000).

At one end are forms of physical contact, such as a hand on the shoulder or a peck on the cheek,

which although unwelcome and uncomfortable for the person touched are relatively minor. Id.

Even cruder acts such as a kiss on the lips or pinch on the buttocks may not constitute severe

harassment when they occur in isolation. Id. (collecting cases); see also Swyear, 911 F.3d at 882

(reaffirming this holding in Hostetler); Cooper v. Eaton Corp., 498 F. Supp. 3d 1053, 1065–66

(N.D. Ind. 2020) (citing the Hostetler holding in granting summary judgment on a claim where a

male coworker poked a female coworker several times around her waistline, bra line, and

possibly touched her breast). At the other end of the spectrum lies “forced physical contact and

touching of sexual body parts, which may be sufficient, even in isolation, to support a claim of

hostile work environment.” Bilal v. Rotec Indus., 326 Fed. App’x 949, 958 (7th Cir. 2009)

(unpublished) (citing Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001)).

Dr. Winther’s single act of grabbing Ms. Williams’ buttocks is reprehensible but fits in

the middle of the spectrum and due to its relative isolation, would not be regarded as severe

under the governing case law. Bilal, 326 Fed. App’x at 958 (defendant’s alleged act of “taking a

chocolate out of his mouth and placing it in Bilal's, while bizarre and disgusting …. because it

occurred in relative isolation, cannot be regarded as severe under the existing case law.”);

Adusumilli v. City of Chicago, 164 F.3d 353, 361–62 (7th Cir.1998) (“four isolated incidents in

which a co-worker briefly touched her arm, fingers, or buttocks” was insufficient); Koelsch v.

Beltone Elecs. Corp., 46 F.3d 705, 706–08 (7th Cir.1995) (one incident in which supervisor

rubbed foot against plaintiff's leg and another where he grabbed plaintiff's buttocks was

insufficient); Weiss v. Coca–Cola Bottling Co., 990 F.2d 333, 337 (7th Cir.1993) (finding that

two attempts by a supervisor to kiss the plaintiff were insufficient).

After examining Dr. Winther’s conduct holistically, the Court finds it is clearly

inappropriate but does not meet the threshold of severe or pervasive necessary to sustain a hostile

work environment claim.

(iii) Ms. Williams has not shown any of the remaining incidents of alleged

harassment occurred on the basis of her sex, or that they rise to the level of severe or pervasive

harassment

Besides the alleged harassment by Dr. Winther, Ms. Williams alleges that her placement

on a PIP15, Mr. Rockett and Mr. Gabriel being present during a meeting, and her exclusion from

the RCA constitute harassing acts which created a hostile work environment.

The Court will begin with Ms. Williams exclusion from the RCA. The Court agrees with

Parkview on an initial matter that it is odd to frame this as a hostile work environment claim

instead of sex discrimination. This exclusion is not harassment or abuse as normally discussed in

Title VII cases, and exclusion from a work opportunity seems to fit within the framework of a

sex discrimination claim more naturally.16 But in either case Ms. Williams has failed to state a

prima facie claim based on this event.

15 Parkview frames Ms. Williams being told she mishandled Nurse Sedlmeyer’s complaint as an

alleged act of harassment (See supra § D(2)(b).) The Court views it as a component of Ms. Williams being

placed on the PIP as it was one of the justifications.

16 Ms. Williams also uses it as part of her sex discrimination claim in Count II.

Both hostile work environment and sex discrimination claims require that the adverse

events be based on the plaintiff’s sex, “a protected characteristic.” Demkovich, 3 F.4th at 977

(hostile work environment); Nigro v. Indiana Univ. Health Care Assocs., Inc., 40 F.4th 488, 491

(7th Cir. 2022) (“To establish that an employer discriminated against her in contravention of

Title VII, a plaintiff must show that her membership in a protected class caused her discharge or

other adverse employment action.”). Ms. Williams suffers from a failure of proof on this point.

Ms. Williams does not have direct evidence she was excluded based on her sex, rather she asks

the Court to make an inference based on indirect evidence. This is permissible in Title VII cases

but is unavailing to Ms. Williams.

Parkview notes, and Ms. Williams does not dispute, that ten out of the fourteen RCA

attendees were women including the presiding member. This fact strongly undermines Ms.

Williams contention that her sex was the basis for her exclusion from the RCA. It is hard to

conclude anti-female animus was responsible for the composition of a group, when that group

ends up being 70% female and led by a woman. Ms. Williams tries to get around this issue by

emphasizing her status as a manager and arguing that none of the ten female attendees were

“similarly situated colleagues of the Plaintiff or members of nurse leadership.” (DE 27 at 27.) In

effect, Ms. Williams seeks to redefine her claim to be sex discrimination against female

managers. This amendment is unavailing to Ms. Williams.

The only evidence supporting this variation of her argument is Ms. Williams’ deposition

testimony indicating that she did not know of any female nurse leadership who were present at

the RCA. (DE 20-2 at 154:14–15.) If female nurse leadership was excluded from a meeting but

male nurse leadership was included, that might be the start of a claim. But that is not the

evidence present here. Ms. Williams next statement in her deposition, after noting no female

nurse leadership was present at the RCA, seemingly indicates that no nursing leadership was

present at all. (Id. at 154:19–155:4.) This is further corroborated by an exhibit to the declaration

of Kathleen Martinez, a Parkview Risk Analyst, which lists the attendees at the RCA. (DE 20-7

at 4.) None of the individuals listed are men in roles Ms. Williams would describe as nurse

leadership.17 (Id.) As a result, the Court finds no evidence in the record to support Ms. Williams

contention that female nurse leadership was excluded from the RCA, but male nurse leadership

was included. As such, her recharacterized claim based on the composition of the RCA cannot

withstand summary judgment. See Roger Whitmore’s Auto. Services, Inc. v. Lake Cty., 424 F.3d

659, 669 (7th Cir. 2005) (to defeat summary judgment the plaintiff must present something

beyond “bare speculation or a scintilla of evidence”).

Additionally, and in the alternative, Ms. Williams has offered no evidence that her

exclusion from the RCA altered the conditions of her employment. Earlier, the Court noted how

the purpose of the RCA is to determine where improvements can be made in patient care and is

not to assign blame or find fault. Ms. Williams offers no explanation on how her exclusion from

the RCA altered her conditions of employment. So the Court finds her exclusion from the RCA

does not constitute an act of harassment that can support a hostile work environment claim.

In a related vein, and looking ahead to Ms. Williams’ sex discrimination claim, the Court

will note that the RCA exclusion also does not constitute an adverse employment action.

Adverse employment actions are generally economic injuries such as dismissal, suspension, or

failure to promote. Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir.

2002). Even so, an adverse action is not limited solely to economic injuries. Collins v. Illinois,

17 Ms. Williams considers Nurse Leadership roles to be “Nurse manager, nurse supervisor, or

executive nurse director.” (DE 20-2 at 154:16–18.) It is unclear if the RCA member identified as an “RN

(Lead)” would qualify under this definition. (DE 20-7 at 4.)

830 F.2d 692, 703 (7th Cir. 1987) (holding that a lateral transfer was really a demotion because

the transfer included the loss of a host of accoutrements such as business cards, desk, phone, and

listing in professional directories). Still, “not everything that makes an employee unhappy is an

actionable adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). For

example, the denial of reimbursement for travel expenses and denial of bonuses are generally not

adverse employment actions. Fyfe v. City of Fort Wayne, 241 F.3d 597, 602 (7th Cir. 2001)

(travel expenses); Miller v. Am. Fam. Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2001) (denial

of bonus).

Ms. Williams’ exclusion from the RCA did not affect her compensation, work conditions,

or job responsibilities in any way the Court can discern. While Ms. Williams did have to

implement a Remedial Action Plan with her staff as a result of the EMTALA event, she has not

argued the terms of the plan would be any different if she had attended the RCA or that her

obligation to follow directives on patient care and Emergency Department operations is different

from her preexisting duties.

For the same reasons, the Court cannot conclude the exclusion from the RCA satisfies the

objective element of severe or pervasive harassment. See Howard, 989 F.3d at 600 (severe or

pervasive harassment is measured by both subjective and objective standards). The subjective

prong turns on whether the evidence shows the plaintiff individually found the conduct to be

severe or pervasive, while the objective prong examines whether a reasonable person would find

the conduct to be severe or pervasive. EEOC v. Costco Wholesale Corp., 906 F.3d 618, 625 (7th

Cir. 2018) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)). While Ms.

Williams has indicated that she found these events to be subjectively offensive, she has not

thoroughly developed why exclusion from this work activity is objectively offensive or cited any

legal authority to that effect.

The Court finds that Ms. Williams has not shown that her exclusion from the RCA was

on the basis of her sex, nor that her exclusion altered her conditions of employment or

constituted an adverse employment action, nor that it was objectively severe or pervasive.

Consequently, her exclusion from the RCA cannot sustain either a hostile work environment or a

sex discrimination claim.

Turning to her placement on a PIP, there is a similar failure of evidence that it was

motivated by Ms. Williams’ sex. As previously noted, Ms. Williams admits she cannot identify a

similarly situated male coworker who was not placed on a PIP to serve as a comparator. (DE 20-

2 at 88:22–89:8.) The only evidence Ms. Williams offers to show that she was placed on a PIP

due to her sex is her own speculative testimony about Parkview’s motive. Parkview has offered

evidence for the non-prohibited rationale that she was placed on a PIP due to her poor

performance in implementing the Remedial Action Plan and because of negative feedback from

subordinates.18 In the absence of any contrary evidence, the Court finds Ms. Williams’ claim

cannot survive summary judgment.

In the alternative, the Court would note that Ms. Williams placement on a PIP alone or

alongside the other facts here would not constitute severe or pervasive harassment. Again, this

standard requires the conduct to satisfy both an objective and a subjective component. Howard,

989 F.3d at 600. The record shows Ms. Williams experienced subjective distress from being

placed on a PIP, “struggling” and lying awake at night after her placement. (DE 27-9 at 6.)

18 The Court would note that Ms. Williams also seems to argue her placement on a PIP was

Parkview’s decision to scapegoat her for the fact they received an EMTALA violation. Nothing about that

claim supports the inference that Ms. Williams was placed on a PIP on the basis of her sex.

However, Ms. Williams does not explain how the PIP constitutes objectively severe or

pervasive harassment. Nor has she discussed how the terms or requirements of the plan and how

those affected her job performance. From the face of the document, it only imposes modest

requirements that Ms. Williams: (1) sign the standards of behavior document, (2) complete

leadership training on sexual harassment, (3) continue to work to build trust with her team, and

(4) review HR report about licensures and certifications coming due then connect with

coworkers before renewal times and remove coworkers from the schedule if not timely renewed.

(DE 20-3 at 11.) Perhaps these terms were burdensome in the manner they were applied to Ms.

Williams or there are other conditions imposed which are not reflected here. But without

evidence of such conduct Ms. Williams’ claim falls considerably short of establishing the PIP

was objectively severe or pervasive harassment. Consequently, the Court cannot conclude it was

objectively offensive.

Further, the Seventh Circuit has expressed skepticism about the severity of PIPs. Abebe v.

Health and Hosp. Corp. of Marion Cty., 35 F.4th 601, 607 (7th Cir. 2022) (“Performance

improvement plans, particularly minimally onerous ones ... are not, without more, adverse

employment actions.” (internal quotation omitted)); see also Cole v. Illinois, 5662 F.3d 812, 816

(7th Cir. 2009) (finding that a PIP was not an adverse employment action even though the

employee was required to submit daily and weekly schedules to her supervisors). The Court

recognizes these cases are discussing PIPs in the context of a Title VII retaliation claim, which is

distinct from a hostile work environment claim. Still, these causes of action are related enough to

help guide the Court’s present analysis and Ms. Williams has presented no caselaw which would

dispute the Court’s reasoning.

For her claim about Mr. Rockett and Mr. Gabriel entering her meeting with the Interim

Director of Nursing, the Court finds no basis for concluding this was on the basis of her sex or

constitutes severe or pervasive harassment. Ms. Williams offers no reasoning to show how their

attendance was motivated by her sex. Further, Ms. Williams subjective discomfort at their

presence is not sufficient to make this severe or pervasive harassment. Neither of these men said

anything while they sat in on the meeting, let alone anything harassing or threatening to her. Ms.

Williams has also not offered any explanation of how their mere physical presence was

intimidating, such as that they engaged in physically acts which could be viewed as intimidating.

See Owens, 2022 WL 4535425, at *6, *6 n.5 (finding that a female plaintiff’s allegation she felt

“intimidated” by the mere fact she was alone in a meeting with two male supervisors was not

sufficient to constitute an act of harassment).

Considering the totality of the circumstances alleged by Ms. Williams, the Court finds

she has not shown she was subject to harassment on the basis of her sex which was severe or

pervasive. Even assuming all these alleged events were on the basis of Ms. Williams’ sex, the

infrequency of these events and respective levels of severity do not collectively establish severe

or pervasive harassment in Ms. Williams workplace during the relevant time period.

For these reasons, the Court finds that Ms. Williams has not established a prima facie

hostile work environment claim and Parkview is entitled to summary judgment on Count I.

(3) Ms. Williams has not made a prima facie case for sex discrimination and

Parkview is entitled to summary judgment on Count III.

Parkview argues they are entitled to summary judgment on Ms. Williams’ sex

discrimination claim as she has not shown that any of the actions Parkview took against her were

on the basis of her sex. The Court agrees and will grant summary judgment on this count.

To establish that an employer discriminated against her in violation of Title VII, a

plaintiff must show that her membership in a protected class caused her discharge or other

adverse employment action. Nigro v. Indiana Univ. Health Care Assocs., Inc., 40 F.4th 488, 491

(7th Cir. 2022).

A plaintiff can go about showing that in two ways. The first method is the McDonnell-

Douglas burden shifting framework. At the first step, this framework requires a plaintiff to show

that (1) she belongs to a protected class, (2) she met her employer’s legitimate expectations, (3)

she suffered an adverse employment action, and (4) she was treated less favorably than similarly

situated employees outside of her protected class. Id. (referring to McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973)). If the plaintiff makes this initial showing, the burden shifts to the

employer to show nondiscriminatory reasons for the decision. Igasaki v. Ill. Dept. of Fin. and

Professional Regulation, 988 F.3d 948, 957 (7th Cir. 2021). The third and final step is the

opportunity for the plaintiff to disprove the nondiscriminatory reason as pretextual. Id. The

second method is the holistic evaluation of Ortiz, in which the plaintiff must show that the

adverse employment action would not have happened to her if she had a different sex and

everything else had remained the same. Id. (citing Ortiz v. Warner Enterprises, Inc., 834 F.3d

760, 764 (7th Cir. 2016)). In performing this holistic analysis, the Court places all the available

evidence, direct and circumstantial into a “single pile” and “evaluate[s] it as a whole.” Ortiz, 834

F.3d at 766.

Under either of these standards Ms. Williams’ claim suffers from a failure of proof and

Parkview is entitled to summary judgment. Ms. Williams alleges her placement on a PIP,

exclusion from the RCA, and her termination were on the basis of her sex. In the previous

section of this order, the Court explained how Ms. Williams failed to show that her placement on

a PIP or exclusion from the RCA were on the basis of her sex.19 That reasoning applies with

equal force here. Consequently, the only issue left to decide is whether Ms. Williams’

termination was on the basis of her sex.

Applying the McDonnell-Douglas framework, Ms. Williams claim fails because she has

not identified a single similarly situated male employee who received better treatment. Failing to

point to even a single comparator is grounds for granting summary judgment. Igasaki, 988 F.3d

at 952–54.20 In order to establish a prima facie sex discrimination claim, a similarly situated

employee must be “directly comparable” to the plaintiff in all “material respects.” Id. at 958

(citing Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 365–66 (7th Cir. 2009)). This

requirement includes that the coworkers engaged in comparable rule or policy violations.

Patterson, 589 F.3d at 365–66. Typically whether an employee is similarly situated is a question

for the finder of fact, unless the plaintiff has no evidence from which a reasonable fact finder

could conclude that the plaintiff met his burden on this issue. Igasaki, 988 F.3d at 958.

Generally, the plaintiff is required to show that the two employees (1) dealt with the same

decisionmaker, (2) were subject to the same standards, and (3) had engaged in similar conduct

19 The Court would also incorporate its prior analysis on why Ms. Williams has not shown that

her “intimidating meeting” with Parkview officials was on the basis of sex, even though it is unclear if

Ms. Williams is arguing that event was part of her sex discrimination claim.

20 The lack of a proper comparator would also foreclose Ms. Williams’ sex discrimination claim

even if the Court also considered the RCA and PIP placement for this claim as she has not identified a

comparator for either of those acts.

without differentiating circumstances that would distinguish their conduct or the employer’s

treatment of them. Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012) (internal citations

and quotations omitted). That said, the Seventh Circuit has cautioned these requirements are not

a “magic formula” and the similarly situated inquiry should be a flexible consideration of all the

facts in the case. Id.

Ms. Williams argues that Dr. Winther is a similarly situated employee and that he was

comparatively treated better because he was not placed on a PIP or terminated despite his

sexually harassing behavior. The Court disagrees and finds that given the facts of this case, Dr.

Winther cannot serve as a comparator and Parkview is entitled to summary judgment.

To begin, Dr. Winther and Ms. Williams did not have a common employer, let alone a

common direct supervisor. Ms. Williams was an employee of Parkview and Dr. Winther was an

employee of Professional Emergency Physicians. The decision to place Ms. Williams on a PIP

and ultimately to terminate her was made by her immediate supervisor, Ashley Wirges. It is

unclear from the record who had disciplinary authority over Dr. Winther, but the record does

indicate that the recommendation for his admitting privileges to be revoked was made by Kim

Harris, a human resources consultant for Parkview. (DE 27-3 at 3–4.) The record also reflects

Ms. Wirges lacked disciplinary authority over Dr. Winther. (DE 20-3 ¶ 8.) The inference of a

discriminatory motive is weaker when there are different decision-makers, since they “may rely

on different factors when deciding whether, and how severely, to discipline an employee.”

Coleman, 667 F.3d at 847 (quoting Ellis v. United Parcel Serv., 523 F.3d 823, 826 (7th Cir.

2008)). As such, this weighs against finding Dr. Winther to be a comparator.

Next, Ms. Williams and Dr. Winther were not subject to the same set of standards. While

both were subject to Parkview’s Anti-Discrimination Policy, Ms. Williams was also a supervisor

which gave her distinct obligations under that policy and related to her other roles. For example,

under the Policy Ms. Williams was obligated to receive reports of misconduct from her

employees and elevate them to human resources. Apart from the Policy, Ms. Williams was also

responsible for ensuring her staff’s performance of their duties such as implementing the

remedial action plan. Nothing in the record reflects Dr. Winther held such supervisory

responsibilities. This is important because Parkview does not claim they fired Ms. Williams for

engaging in sexual harassment. They claim she was fired because of the poor quality of her

work. Precedent dictates that in cases “[w]here the issue is the quality of a plaintiff's work, a

difference between the plaintiff's and comparators' positions can be important because this

difference will often by itself account for the less favorable treatment of the plaintiff.” Coleman,

667 F.3d at 849 (citing Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009) (“the

comparators must be similar enough that differences in their treatment cannot be explained by

other variables, such as distinctions in their roles or performance histories”)). This also weighs

against Dr. Winther serving as a comparator.

Finally, the Court comes to whether Ms. Williams and Dr. Winther engaged in similar

conduct. The comparators need not have engaged in identical conduct to qualify as similarly

situated, rather their conduct need only be “similar.” Coleman, 667 F.3d at 850. For example, it

is generally sufficient for the comparator to have violated the same rule as the plaintiff in an

equally serious or more serious manner. Id. at 850. While this is not a restrictive standard, Ms.

Williams cannot satisfy it here. Her alleged misconduct is poor work performance in leading and

managing her subordinates but Dr. Winther allegedly sexually harassed coworkers. These actions

are not similar enough to allow a meaningful comparison.

Ms. Williams’s arguments to the contrary are unavailing. Ms. Williams’ arguments rely

on heavily generalizing her and Dr. Winther’s roles and actions. Specifically, she frames them

both as employees in the Emergency Department, subject to the same hospital standards such as

the Anti-Harassment Policy, with the same job duties of caring for patients. These arguments are

unpersuasive as they wave away important distinctions in the two individuals’ job roles which

impacts what standards they were subject to, the fact they dealt with different decisionmakers,

and the fact the engaged in fundamentally different types of conduct. Thus, the Court concludes

that Ms. Williams has not identified a similarly situated employee as required by the McDonnell-

Douglas framework.

In considering the evidence holistically, the Court reaches the same conclusion. Ms.

Williams testified in her deposition that she believes the negative things which happened to her

at work were on account of her sex. However, Ms. Williams has not provided any evidence

beyond that testimony that her sex was a motive for her exclusion from the RCA, her placement

on a PIP, or her ultimate termination. Therefore she has not established a prima facie case which

can survive summary judgment. See Jones v. Parkview Hosp. Inc., 2020 WL 6291462, *12 (N.D.

Ind. Oct. 26, 2020) (subjective beliefs and conclusory allegations are not evidence of

discrimination) (internal citations omitted).

The Court finds Ms. Williams’ claim does not satisfy the first step of the McDonnell-

Douglas framework, and also fails under the holistic Ortiz framework, as she has not shown the

adverse actions she experienced were on account of her sex. As such, Parkview is entitled to

summary judgment on Count III.

(4) Ms. Williams’ Title VII retaliation claim is sufficient to survive summary

judgment (Count IV)

Ms. Williams’ fourth claim is for retaliation under Title VII. Ms. Williams alleges that

Parkview terminated her in retaliation for encouraging her coworker Angela Jacobs to report

Title VII violations. Parkview argues they are entitled to summary judgment because Ms.

Williams was terminated due to her poor job performance and not on account of any

communications with Ms. Jacobs. The Court agrees with Ms. Williams and will deny summary

judgment.

For her retaliation claim to survive summary judgment, Ms. Williams must produce

evidence that (1) she engaged in statutorily protected activity, (2) a materially adverse action was

taken against her by her employer, and (3) there is a causal connection between (1) and (2). Lesiv

v. Ill. Cent. R.R. Co., 39 F.4th 903, 911 (7th Cir. 2022). In this case the parties do not dispute that

Ms. Williams’ termination qualifies as a materially adverse employment action, nor do they

explicitly dispute that she engaged in protected activity.21

A plaintiff establishes a causal connection by showing that the defendant “would not

have taken the adverse … action but for [her] protected activity. Baines v. Walgreen Co., 863

F.3d 656, 661 (7th Cir. 2017) (quoting Greengrass v. Int’l Monetary Sys., Ltd., 776 F.3d 481,

486 (7th Cir. 2015)). A plaintiff may establish this causal relationship through the direct method,

or the indirect method. Id. The direct method being evidence such as an admission by an

employer of an unlawful aim, and the indirect method being an inference assembled from the

evidence in the record that it is more likely than not that discrimination lay behind the adverse

21 Parkview’s reply brief may, for the first time, dispute whether Ms. Williams’ activity qualifies

for Title VII protection. The Court will address this issue later in this order.

action.22 Id. Regardless of the method being used, the fundamental obligation of the Court is to

examine all evidence in the record and determine whether a reasonable jury could conclude that

a plaintiff’s protected activity caused her to suffer an adverse employment action. Lesiv, 39 F.4th

at 918 (citing Ortiz, 834 F.3d at 765).

Ms. Williams does not specify what theory she is proceeding under and instead generally

argues that the evidence is sufficient for a jury to infer causation. In the end, the question of what

specific framework Ms. Williams is proceeding under is mooted by the fact there is sufficient

evidence in the record for a reasonable juror to conclude Ms. Williams was terminated based on

her protected activity.

The Court agrees with this assessment. The Court reaches this conclusion for three

reasons. First, Parkview admits to knowing about Ms. Williams’ protected activity when they

chose to terminate her. Second, Ms. Williams’ termination was only a week after her protected

activity, which under these circumstances is sufficient to infer causation. Third, there is a

genuine dispute of material fact over whether Parkview’s stated reason for Ms. Williams

termination was pretextual.

Ms. Williams argues that her termination was in retaliation for encouraging Ms. Jacobs to

file a report about her allegedly hostile work environment. Ms. Williams alleges that within one

week of encouraging Ms. Jacobs, she was terminated. Parkview has admitted, and evidence in

the record shows, they were aware of Ms. Williams speaking with Ms. Jacobs prior to deciding

to terminate Ms. Williams. This includes Ms. Wirges receiving a phone call from Ms.

Goldsberry, the Vice President of Parkview Noble, informing Ms. Wirges of the contact and

22 While the indirect method is often assessed using the McDonnell-Douglas burden shifting

framework, neither party has invoked that framework here. Accordingly, the Court will perform the

wholistic analysis of the record as discussed in Lesiv.

reporting that Ms. Williams was “shit stirring.” (DE 20-3 at ¶ 29.) Ms. Wirges’ personal notes of

the call also indicate that the overarching theme of Ms. Williams conversation with Ms. Jacobs

was “I see how you are being treated and it’s not right” and that Ms. Williams conveyed she was

going to file something with corporate and the manager could join her in filing. (DE 27-9 at 3.)

This evidence is enough to allow Ms. Williams’ retaliation claim to survive summary

judgment. Particularly, the evidence shows that Ms. Wirges was aware of Ms. Williams

approaching managers at Whitley and seemingly encouraging them to join her in filing a

grievance with the corporate office before Ms. Williams was terminated. See Eaton v. J.H.

Findorff & Son, Inc., 1 F.4th 508, 512–13 (7th Cir. 2021) (a plaintiff must establish the decision

maker had actual knowledge of the protected activity) Further, for the reasons discussed there is

a question of material fact as to whether Ms. Williams was performing her duties according to

expectations when she was terminated.

Ms. Williams also argues that the temporal proximity of her conversation with Ms.

Jacobs and her termination shows she was terminated based on that protected activity. The

Seventh Circuit has cautioned that “suspicious timing is rarely enough to create a triable issue.”

Khungar v. Access Cmty. Health Network, 985 F.3d 565, 578 (7th Cir. 2021) (quoting Casna v.

City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). To prevail on such an argument the

plaintiff is also required, as “a threshold matter” to show that the defendant was aware of the

protected conduct. Id. (internal quotations and citations omitted). Further, generally only a few

days may elapse between the protected activity and the adverse action in order to infer causation.

Id. at 578–79; see also Kidwell v. Eisenhower, 679 F.3d 957, 966–67 (7th Cir. 2012) (discussing

cases which found one-to-three-day gaps were sufficiently close, but a two-month gap was not);

Rowlands v. United Parcel Serv.-Fort Wayne, 901 F.3d 792, 802 (7th Cir. 2018) (finding that a

one-month gap to be sufficiently close when there was evidence of pretext for the termination).

The Court finds that Rowlands is dispositive guidance here for two reasons. First, the

record shows Parkview was aware of Mr. Williams’ protected activity. Second, as will be

discussed below, there is objective evidence of pretext for the termination because there is a

genuine dispute of material fact over whether Parkview’s reason for termination is genuine. In

Rowlands, those facts meant that one month between the protected activity and termination was

close enough to infer causation and survive summary judgment. Here, the time span is only a

week.

Parkview argues they are entitled to summary judgment because they have offered

evidence of Ms. Williams’ poor job performance as a legitimate reason for her termination, and

she has not provided evidence establishing Parkview’s rationale was pretextual. Parkview also

argues that Ms. Williams has provided no admissible evidence that Ms. Jacobs actually reported

a hostile work environment to her supervisors or Parkview human resources. Thus, Parkview

argues, the only fact supporting the retaliation argument is temporal proximity between Ms.

Williams encouraging Ms. Jacobs to file a report and being terminated, proximity which is not

close enough to survive summary judgment.

The Court disagrees and finds there is a genuine dispute of material fact as to whether

Ms. Williams’ termination was pretextual. Parkview has mustered evidence that her job

performance was declining before her termination. Specifically, the reports of poor performance

that Ms. Wirges received from Ms. Williams’ coworkers. That said, this is contradicted by other

evidence from the same general time period that Ms. Williams was a good employee.

Specifically, the Court would refer to her annual evaluation completed in July 2019 which

positively reports on Ms. Williams workplace performance and the 2019 Coworker Engagement

Survey results.23

Pretext is not just “faulty reasoning or mistaken judgment” by an employer. Crain v.

McDonough, 63 F.4th 585, 593 (7th Cir. 2023) (quoting Burton v. Bd. of Regents of Univ. of Wis.

Sys., 851 F.3d 690, 698 (7th Cir. 2017)). Rather it is a “lie, specifically a phony reason for some

action.” Id. The pretext inquiry accordingly requires the Court to evaluate the honesty of the

employer’s explanation, rather than its reasonableness. Id. To demonstrate pretext a plaintiff

must “identify such weaknesses, implausibilities, inconsistencies, or contradictions [in the

employer’s stated rationale] that would permit a reasonable person to conclude that the stated

reasons are unworthy of credence.” Id. (quoting Robertson v. Dep’t of Health Servs., 949 F.3d

37, 380 (7th Cir. 2020) (modifications omitted)). A plaintiff’s contention that the employer’s

reasons are pretextual must be corroborated by some objective evidence and cannot rely solely

on her subjective impression. O’Connor v. DePaul Univ., 123 F.3d 665, 670 (7th Cir. 1997).

Parkview’s proffered reason for terminating Ms. Williams is her poor job performance,

particularly relating to her ability to lead her staff and implement new policies as a result of the

EMTALA event. Ms. Williams has mustered objective evidence that during the tenure of her

employment she received positive performance evaluations, including an annual performance

evaluation finalized shortly before her placement on a PIP. See O’Connor, 123 F.3d at 670. The

Court recognizes that the fact Ms. Williams was placed on a PIP prior to engaging in her Title

23 Ms. Williams does not quite explain how to read the results of the Coworker Engagement

Survey, nor does she clarify whether all the questions are actually an appraisal of her leadership. (See DE

26 p. 37–38, Response ¶ 122 (claiming the survey shows “Plaintiff is above the Parkview mean in every

category of evaluation” even though several prompts appear to be about non-managerial coworkers (See,

e.g., DE 27-20 at 8 (“The nurses I work with are clinically competent”)). Nonetheless, the survey does

appear to contain positive results regarding Ms. Williams leadership as a manager. (DE 27-20 at 10

(reflecting an above mean score for the prompt “My manager is an effective advocate for staff nurses.”)

VII protected activity weighs against finding pretext. Crain, 63 F.4th at 594–95 (evidence of the

employer raising performance issues prior to the protected activity undermines a conclusion the

performance issues were pretextual). However, the parties agree that Ms. Williams and Ms.

Wirges had productive meetings regarding the progress of the PIP which is indicative Ms.

Williams was adequately satisfying her employer’s progress requirements.

Viewed cumulatively, this evidence creates an inconsistency about the quality of Ms.

Williams’ job performance leading up to her termination which would allow a reasonable jury to

conclude Parkview’s stated reasons were unworthy of credence. Therefore, a reasonable jury

could conclude from this evidence that Parkview’s stated reason for Ms. Williams’ termination

was pretextual and she was actually terminated based on her protected activity.

This conclusion is buttressed by Seventh Circuit precedent. A portion of Parkview’s

stated rationale for terminating Ms. Williams appears to be a charge of insubordination or

disloyalty related to her alleged formation of a “coalition” against management. The Seventh

Circuit has held that an employer cannot retaliate against employees who complain of Title VII

violations “‘under the ruse that the employee was being disloyal or insubordinate by opposing

unlawful activity.’” Xiong v. Bd. of Regents of Univ. of Wis. Sys., 62 F.4th 350, 355 (7th Cir.

2023) (quoting Castro v. DeVry Univ., 786 F.3d 559, 569 (7th Cir. 2015)). The Court interprets

this precedent as advising caution in resolving summary judgment motions that turn on

distinguishing unprotected insubordinate conduct from protected opposition to unlawful activity.

As applied to this case, given there is evidence suggesting possible multiple motives for Ms.

Williams’ termination it should be left to a jury to determine which motives drove the decision.

Given the mixed evidence there is a genuine dispute of material fact which must be

submitted to the jury to resolve, and summary judgment is inappropriate. Xiong, 62 F.4th at 355

(“If an adverse employment action is the result of two different causes—one prohibited by Title

VII and the other permissible—then summary judgment should not be granted to an employer.

…. It is up to the jury, not a court at summary judgment, to unravel the competing, and perhaps

intertwined, narratives as to why [the employer] decided to take that action.”).

Parkview’s reply brief also appears to raise the new argument that encouraging a

coworker to file a report of conduct prohibited by Title VII is not a protected activity and this is a

separate basis to grant them summary judgment. Parkview does not dispute that Ms. Williams’

encouraged Ms. Jacobs to report misconduct or that they were aware of this encouragement

when they chose to terminate her. But Parkview argues that “Plaintiff has not provided any

admissible evidence that Ms. Jacobs ever reported to anyone at Parkview… that she was the

victim of sexual harassment or a hostile work environment.” (DE 30 at 9 (emphasis added).) The

thrust of this statement seems to be Ms. Williams’ encouragement is not protected activity unless

Ms. Jacobs actually filed a complaint.

First, it is improper to raise new arguments in a reply brief and this argument is

consequently waived. White v. United States, 8 F.4th 547, 552 (7th Cir. 2021) (“[A]rguments

raised for the first time in [a] reply brief are waived because they leave no chance to respond” ).

Second, Parkview’s assertion is unsupported by citation to legal authority and this Court has

previously found encouraging coworkers to exercise their Title VII rights is protected activity.

Oszust v. Town of St. John, 212 F. Supp. 3d 770, 777 (N.D. Ind. 2016) (plaintiff’s actions of

supporting, assisting, and encouraging three female coworkers in reporting sexual harassment is

“squarely within” Title VII protected activity) (internal citations omitted).

Accordingly, the Court will deny Parkview’s motion for summary judgment on Count IV

as the evidence, when viewed holistically, would allow a reasonable juror to conclude that Ms.

Williams’s protected activity was the cause of her termination.

E. Conclusion

Accordingly, the Court DENIES as moot the Defendants’ motion to strike. (DE 32.) The

Court GRANTS in part and DENIES in part Defendants’ motion for summary judgment. (DE

20.) The Court GRANTS summary judgment to Parkview on Count I (hostile work

environment), Count II (sex discrimination), and Count III (HIPAA and EMTALA retaliation)

but DENIES summary judgment on Count IV (Title VII retaliation)

SO ORDERED.

ENTERED: September 18, 2023

/s/ JON E. DEGUILIO

Judge

United States District Court