Velasco, Fe A. v. IL Dept Human Servic

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1391

FE A. VELASCO, M.D.,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF HUMAN SERVICES,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 4314--Suzanne B. Conlon, Judge.

Argued September 26, 2000--Decided April 12, 2001

Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.

COFFEY, Circuit Judge. On June 30, 1999, Dr. Fe

A. Velasco, a Filipino-American woman, filed a

four-count complaint alleging that the Illinois

Department of Human Services’ decision to

terminate her employment violated a number of

federal employment laws. Specifically, Velasco

asserted race and gender discrimination under

Title VII (Count One), race discrimination under

42 U.S.C. sec. 1981 (Count Two), retaliation

under Title VII and 42 U.S.C. sec. 1981 (Count

Three), and a violation of the Americans with

Disabilities Act (ADA) (Count Four). On August

16, 1999, the Illinois Department of Human

Services filed a motion to dismiss the first two

counts of Velasco’s complaint, alleging that: (1)

Velasco’s Title VII race and gender

discrimination claims (Count One) were untimely

as they were filed more than 90 days after she

received a right-to-sue letter; and (2) that the

Eleventh Amendment immunized the Department of

Human Services from Velasco’s 42 U.S.C. sec. 1981

claims (Count Two). The district court granted

the defendant’s motion and dismissed counts one

and two of Velasco’s complaint. On December 3,

1999, the Department also moved for summary

judgment on counts three and four of Velasco’s

complaint, contending: (1) that it had a

legitimate, nondiscriminatory reason for

discharging Velasco; and (2) that Velasco was not

a "qualified individual with a disability" under

the ADA. The district court granted summary

judgment to the Department with respect to counts

three and four, and dismissed Velasco’s

complaint. We affirm.

I. BACKGROUND

A. Factual History

In 1986, the Illinois Department of Human

Services hired Fe Velasco, M.D., as a forensic

psychiatrist at the Elgin Mental Health Center

(Elgin) to treat primarily those patients who

either had been adjudged mentally incompetent to

stand trial or had been acquitted of criminal

charges by reason of insanity. On August 15,

1997, Velasco volunteered to be Elgin’s Medical

Officer of the Day (MOD) during the evening shift

and was, therefore, the only physician on duty at

Elgin from 4:00 p.m. until midnight. As the MOD,

Velasco was responsible for attending to all

medical emergencies at the facility.

That evening, at approximately 8:00 p.m., a

patient in the Wines building began choking on

food, and, at 8:04 p.m. a "Code Blue" alert was

announced over Elgin’s voice page system./1

Velasco, as the MOD, was obligated to respond

immediately to the Code Blue and provide medical

treatment to the patient. At the time of the Code

Blue, she was sitting in the Elgin Medical

Building, but claims that she did not hear the

announcement./2 In any event, Velasco became

aware of the emergency minutes later (at 8:08

p.m.) when her personal pager directed her to

call an extension in the Wines Building. Upon

calling, Velasco spoke with nurse Paul Bute and

learned that he had performed the Heimlich

maneuver (without success) on a choking patient.

Despite being informed by Bute that the patient

was gasping for air, Velasco did not immediately

respond to the emergency, but instead asked Bute

to "keep her updated on the situation" because

"she was in the middle of her lunch."

Meanwhile, paramedics from St. Joseph’s Hospital

arrived at approximately 8:14 p.m. and left with

the patient at approximately 8:25. p.m./3

Velasco, according to her own deposition

testimony, was only a "five minute" walk away,

but did not arrive at the Wines building until

after the paramedics had departed with the

patient, some twenty minutes after the Code Blue

page was initially activated. Although the

patient was released from St. Joseph’s Hospital

a few hours later that evening, Velasco did not

actually visit the patient until 1:35 a.m. the

next morning.

Dr. Stephen Dinwiddie, who as the Elgin Medical

Director supervises all medical professionals

employed at Elgin, met with Velasco on Monday,

August 18, 1997. During the meeting, Dr.

Dinwiddie informed Velasco that he had ordered an

internal investigation of the Code Blue incident

referenced above. Dr. Dinwiddie further advised

Velasco that if the investigation concluded that

she did not provide a timely response to the

choking patient, she should consider resigning

rather than facing charges of neglect of duty

which could result in termination of her

employment. Almost one month later, on September

11, 1997, the Elgin internal investigation office

submitted a report to Dr. Dinwiddie that stated:

There appears to be no dispute that Dr. Velasco

was not present on the unit, and did not seek nor

attend to the patient, from the beginning of the

choking episode to the time of the transfer to

St. Joseph’s. Neither is this (her non-

attendance) refuted in any of the statements

completed by staff interviewed subsequent to the

incident.

Based on this report, Dr. Dinwiddie sent a

letter to Darek Williams, the Elgin Director of

Human Resources, recommending that Velasco’s

employment be terminated. According to Dr.

Dinwiddie’s letter, his recommendation to

discharge Dr. Velasco was based on the following:

That when "Dr. Velasco was called and told of the

acute choking situation, she said that she was in

the ’middle of dinner and to keep her updated.’"

That when "she arrived on the Unit after the

patient had been transported . . . she wrote a

note which has a date, but no time, thus

potentially obscuring her role in this incident."

That the patient returned at 10:15 but that Dr.

Velasco "did not examine the patient in person

until" 1:35 a.m. the next morning, "according to

her progress note."

Dr. Velasco’s failure to respond to the emergency

call that the patient was choking in a timely

way.

Dr. Velasco had been disciplined twice for

serious offenses, in particular and most

recently, for failing to go to another patient

who was exhibiting seizure symptoms.

Under the terms of a master agreement

negotiated by the American Federation of State

County and Municipal Employees (AFSCME), no Elgin

employee could be disciplined or discharged

without first being afforded a hearing allowing

the employee the opportunity to rebut any charges

of wrongdoing. After reviewing Dr. Dinwiddie’s

report, Darek Williams scheduled a pre-

disciplinary hearing for November 21, 1997, to

consider whether Velasco’s employment at Elgin

should be terminated. Shortly before this pre-

disciplinary hearing, however, an AFSCME

representative contacted Williams and secured a

continuance of the hearing because Velasco had

been placed on medical leave.

Velasco was placed on medical leave on November

18, 1997, after calling Elgin’s timekeeper and

stating that she had checked into a hospital for

depression./4 In support of Velasco’s request

for medical leave, on January 23, 1998, Dr. E.A.

Perakis, a psychiatrist, submitted a letter to

Elgin’s human resources director stating that

Velasco had been under his care since November

18, 1997, at which time he had advised her to

take a medical leave of absence. Some months

later, on May 12, 1998, Dr. Perakis submitted a

letter stating:

Dr. Velasco has been under my care since November

18, 1997 and has been treated for symptoms of

severe depression. During the past two years, she

has struggled with poor concentration, decreased

energy levels, tearfulness, and a severely

depressed mood. She has not been able to function

at a level which would enable her to practice

psychiatry.

I do not feel that [Velasco] was in any condition

to function adequately in her duties as a

psychiatrist nor to function sufficiently while

in any other kind of demanding job that would

utilize her skill level. I would definitely

consider the patient to have been totally

disabled during this period.

Prior to Dr. Perakis’ May 12, 1998 letter, no one

at Elgin had been informed that Velasco had a

disability which required accommodation. In fact,

Dr. Velasco never completed a "Request for

Reasonable Accommodation" form for her

disability.

While Dr. Velasco applied for continuing medical

leave, Dr. Edith Hartman became aware that

Velasco’s staff privileges would expire in August

1998./5 On July 8, 1998, Dr. Hartman wrote

Velasco and warned:

Please be advised that your membership in the

Medical Staff Organization, and your privileges

as Physician Specialist C will expire on August

28, 1998.

In response, Velasco wrote a letter to Dr.

Hartman on July 12, 1998, stating:

Thank you for your kind consideration. I am

requesting the application for renewal of

membership in the Medical Staff organization be

sent to my residence as I am still medically

unfit to return back to work.

One month later, on August 12, 1998, Velasco

submitted an application to renew her staff

privileges at Elgin. On the application, Velasco

responded "No" to the question "Do you have any

physical or mental condition which could impact

on your ability to carry out any assigned

duties?" despite the fact that she: (1) had

admitted only a month before in her letter to Dr.

Hartman that she was "medically unfit to return

back to work"; and (2) was currently on medical

leave. On August 20, 1998, the Credentials

Committee allowed Velasco’s staff privileges at

Elgin to lapse because of her unresolved

personnel and health issues.

On August 20, 1998, more than one year after

the Code Blue incident occurred, Elgin management

sent a notice to Velasco, stating:

Elgin Mental Health Center is contemplating

imposing disciplinary action upon you. (See

attached memo [alleging misconduct in handling

the "Code Blue" emergency of August 15, 1997])

According to AFSCME Master Contract, you will

have an opportunity in which to respond to these

charges. Therefore a conference has been

rescheduled for you on August 26, 1998 at 2:00

p.m. in Conference Room 113 of the Administration

Building.

At the August 26 conference, you may be

represented by your bargaining unit

representative.

Velasco requested that the hearing, now scheduled

more than one year after the incident, be delayed

due to her continuing health problems, but her

request was denied. On the date of the hearing,

Dr. Dinwiddie appeared on behalf of Elgin

management, recited the results of the internal

investigation report, and argued for her

discharge. As Velasco neither attended the

hearing nor requested that an AFSCME official

appear on her behalf, Dr. Dinwiddie’s arguments

and allegations went unchallenged and Velasco was

discharged effective on October 25, 1998.

B. Procedural History

Dr. Velasco originally filed charges with the

Equal Employment Opportunity Commission (EEOC)

and the Illinois Department of Human Rights

(IDHR) alleging race and gender discrimination

under Title VII of the Civil Rights Act of 1964,

42 U.S.C. sec.2000e, et seq., in March 1998.

Shortly thereafter, on May 18, 1998, Velasco

received a right-to-sue letter from the EEOC and

IDHR. Almost two months later, on August 14,

1998, she filed a two-count complaint in federal

court alleging race discrimination and Title VII

gender discrimination. On January 26, 1999,

Velasco moved (without reciting a reason) to

voluntarily dismiss her first complaint pursuant

to Fed. R. Civ. P. 41, and the trial judge

granted her motion.

On February 22, 1998, only one month after

dismissing her first complaint, Velasco filed new

charges with the EEOC and IDHR alleging

retaliation and disability discrimination, but

not race discrimination. She received a right-to-

sue letter dated April 28, 1999, in response to

these charges. On June 30, 1999, Velasco filed

her second complaint and alleged race and gender

discrimination under Title VII despite the fact

that she had not made an allegation of race

discrimination in her February 1999 complaint to

the EEOC and IDHR. Thus, the second complaint was

filed over one year after the EEOC’s May 1998

right-to-sue letter authorizing a suit based on

race discrimination.

On August 16, 1999, the Department filed a

motion to dismiss alleging that: (1) the race and

gender discrimination under Title VII claims in

Count One were filed more then 90 days after the

right-to-sue letter was issued and were,

therefore, untimely; and (2) that the Eleventh

Amendment immunized the Department, an agency of

the state of Illinois, from liability under 42

U.S.C. sec. 1981. The district court granted the

defendant’s motion and dismissed the Title VII

race and gender discrimination claims in Count

One and the section 1981 claims in Count Two.

On December 3, 1999, the Department moved for

summary judgment on the remaining counts

(alleging violation of the ADA and discriminatory

retaliation) contending that: (1) the department

had a legitimate nondiscriminatory reason for

discharging Velasco; and (2) Velasco was not a

"qualified individual with a disability" under

the ADA. The district court granted the

Department’s motion on January 14, 2000, and

dismissed Velasco’s remaining claims. Velasco

appeals.

II. DISCUSSION

We review de novo the district court’s decision

to grant both a motion for summary judgment and

a motion to dismiss, accepting all facts and

inferences in a light most favorable to Velasco.

Vukadinovich v. Board of Sch. Trustees, 978 F.2d

403, 408 (7th Cir. 1992), cert. denied, 510 U.S.

844 (1993). Summary judgment is appropriate

whenever "the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is

no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a

matter of law." Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). "If

no reasonable jury could find for the party

opposing the motion, it must be granted."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

A. ADA Claim

Whatever the merits of Velasco’s ADA claim were

before she filed her suit, the Supreme Court’s

recent decision in Board of Trustees of the Univ.

of Alabama v. Garrett, 121 S. Ct. 955 (2001) bars

her ADA claim under the Eleventh Amendment. We

are, of course, bound to follow the holdings of

our nation’s highest court. United States v.

Gillespie, 974 F.2d 796, 804 (7th Cir. 1992)

("[O]ur obligation is to follow Supreme Court

precedent, not contract or expand it . . . .").

Given that the Garrett decision is directly on

point, we need not address this issue any

further.

B. Title VII Retaliation Claim

Dr. Velasco contends that the district court

improperly granted summary judgment on her claim

of retaliation under Title VII. On appeal, Dr.

Velasco argues that a factual question exists as

to whether she was terminated in retaliation for

her decision to file charges of race and sex

discrimination against the Illinois Department of

Human Services. We disagree.

As is well known, Title VII prohibits an

employer from taking adverse employment action or

discriminating against an employee merely because

the employee

. . . has opposed any practice made an unlawful

employment practice by this subchapter, or

because he has made a charge, testified, assisted

or participated in any manner in an

investigation, proceeding or hearing under this

subchapter.

42 U.S.C. sec. 2000e-3(a). Thus, it is unlawful

for an employer to discharge an employee simply

because that employee has filed a charge under

Title VII. Juarez v. Ameritech Mobile

Communications, Inc., 957 F.2d 317, 321 (7th Cir.

1992).

1. Burden-Shifting Analysis

Dr. Velasco employed the burden-shifting

approach originally espoused in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) in resisting

the Department’s motion for summary judgment on

her retaliation claim. In the present case, the

Department concedes that Dr. Velasco can set

forth a prima facie case that she engaged in

protected activity by filing charges of

discrimination with the EEOC, and shortly

thereafter, suffered an adverse employment

action, namely being discharged./6 Under

McDonnell Douglas’ indirect, burden-shifting

approach, this concession forces the Department

to articulate a nondiscriminatory reason for

terminating Velasco’s employment which, if taken

as true, would support the conclusion that there

did exist a nondiscriminatory reason for her

discharge. St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 513 (1993). The Department asserts that

Velasco was terminated because she failed to

timely respond and supply medical attention

during a life-threatening Code Blue emergency

while serving as the Elgin MOD on August 15,

1997.

Importantly, we have recently decided that an

employer that claims that a physician’s actions

have endangered patients has articulated a non-

discriminatory explanation for discharge that

satisfies this burden of production. Bekker v.

Humana Health Plan, Inc., 229 F.3d 662 (7th Cir.

2000). As we are of the opinion that a doctor

endangers persons entrusted to her care if and

when she fails to timely respond to medical

emergencies, we hold that the Department has

satisfactorily articulated a non-discriminatory

reason for terminating Velasco’s employment.

As the Department has asserted a non-

discriminatory justification, the burden now

shifts to Dr. Velasco to prove by a preponderance

of the evidence that the Department’s proffered

reason was merely a pretext for discrimination.

To demonstrate pretext, Velasco must demonstrate

that the Department’s articulated reason for her

discharge either: (1) has no basis in fact; (2)

did not actually motivate her discharge; or (3)

was insufficient to motivate her discharge.

Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.

1995).

Upon review of the record, we are convinced

that the Department’s asserted reason for her

discharge was supported by an adequate factual

basis. It is undisputed that a medical emergency

occurred on August 15, 1997, when a Code Blue

page announced an emergency in the Wines

Building. It is further undisputed that another

hospital employee, Jean Cattron, who was in the

same building as Velasco at the time of the Code

Blue call not only heard the call, but responded

to the alert and assisted the patient prior to

the arrival of paramedics. The record

demonstrates that Velasco, by her own admission,

did not arrive in the building until after

paramedics had left with the patient. Finally,

Velasco admits she advised a nurse attending to

the patient during the life-threatening emergency

that she was on her "lunch break." We also hold

that Dr. Velasco has failed to demonstrate that

her handling of the Code Blue incident did not

"actually motivate" her discharge or was

"insufficient to motivate" her discharge.

Collier, 66 F.3d at 892.

Dr. Velasco asserts that the temporal proximity

between the time she filed a charge of

discrimination (September 2, 1997) and Dr.

Dinwiddie’s recommendation to terminate her

employment (October 14, 1997) creates a question

of fact as to whether the Department discharged

her in retaliation for filing a discrimination

claim. Dr. Velasco’s reliance on the temporal

proximity between her complaint and discharge is

misplaced because Dr. Dinwiddie became concerned

about Dr. Velasco’s mishandling of the Code Blue

incident well before Velasco filed a

discrimination charge. In fact, on August 18,

1997, Dr. Dinwiddie told Velasco that she should

consider resigning rather than proceeding through

disciplinary proceedings that would likely result

in her termination.

C. Race Discrimination

Dr. Velasco’s final argument is that the

district court erred in dismissing her race

discrimination claim as being untimely. A

plaintiff must file an action for race

discrimination within 90 days of receiving a

right-to-sue letter. Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990). Dr. Velasco

received a right-to-sue letter on May 18, 1998,

and timely filed her first complaint against the

Department alleging race and gender

discrimination under Title VII on August 14,

1998. On January 26, 1999, however, Velasco moved

to voluntarily dismiss her first complaint

pursuant to Fed. R. Civ. P. 41, and the court

granted her motion.

When Velasco filed new charges with the EEOC on

February 22, 1998, she alleged retaliation and

disability discrimination, but did not re-assert

charges of race discrimination. Consequently, the

April 28, 1999 right-to-sue letter she received

in response to her February charges authorizes

her to file a suit for "retaliation and

disability discrimination" but not race

discrimination. Thus, the only authorization Dr.

Velasco has ever received to bring the claim of

race discrimination contained in her second

complaint was conferred on May 18, 1998, over one

year prior to her filing of the second complaint.

Her race discrimination count is clearly not

timely. See generally Brown v. Hartshorene Pub.

Sch. Dist. #1, 926 F.2d 959, 961 (10th Cir. 1991)

("Courts have specifically held that the filing

of a complaint that is dismissed without

prejudice does not toll the statutory filing

period of Title VII. See Price v. Digital Equip.

Corp., 846 F.2d 1026, 1027 (5th Cir. 1988) (per

curiam); Wilson v. Grumman Ohio Corp., 815 F.2d

26, 28 (6th Cir. 1987) (per curiam). We agree.").

The district court’s decision is

AFFIRMED.

/1 Code Blue is the highest, most urgent call used

at the Elgin facility and signifies a life-

threatening medical emergency. Elgin’s "voice

page system" is a series of loud speakers

contained in almost every building at Elgin,

including the Medical Building where Velasco was

seated at the time that the Code Blue was

announced.

/2 Jean Cattron, another Elgin employee, stated in

a subsequent investigation that she (Cattron) was

in the Medical Building and heard the Code Blue

announced over the loud speakers.

/3 Dr. Velasco alleges that the paramedics

transferred the patient at 8:15 p.m. not 8:25

p.m., but offers no support for this contention.

More importantly, she does not dispute that the

paramedics, arriving from a separate medical

treatment facility, responded to the emergency

and transferred the patient to St. Joseph’s

Hospital before she arrived on the scene.

/4 Due to Velasco’s numerous requests, her medical

leave was eventually extended through November 4,

1998, and she never returned to work at Elgin.

/5 "Staff Privileges" at a hospital allow a licensed

doctor to practice medicine at a particular

institution. As the Chair of the Elgin

Credentials Committee during all times relevant

to this appeal, Dr. Hartman reviewed requests

from doctors to obtain or renew staff privileges

at Elgin.

/6 To establish a prima facie case of retaliation

under Title VII, Velasco must prove that (1) she

engaged in statutorily protected expression; (2)

she suffered an adverse action by her employer;

and (3) there is a causal link between the

protected expression and the adverse action.

Adusumilli v. City of Chicago, 164 F.3d 353, 362

(7th Cir. 1998).