Ptasznik, Grace v. Saint Joseph Hospita

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-2687

GRACE PTASZNIK,

Plaintiff-Appellant,

v.

ST. JOSEPH HOSPITAL and

RESURRECTION HEALTH CARE,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 0320—Amy J. St. Eve, Judge.

____________

ARGUED JUNE 1, 2006—DECIDED SEPTEMBER 21, 2006

____________

Before FLAUM, Chief Judge, and WILLIAMS and SYKES,

Circuit Judges.

WILLIAMS, Circuit Judge. In this employment discrimina-

tion lawsuit, Grace Ptasznik, who is a Polish immigrant,

was terminated from her job as a sleep technician at St.

Joseph Hospital for allegedly failing to follow protocol while

attending to a patient. Ptasznik sued St. Joseph and

Resurrection Health Care, a network of healthcare provid-

ers that includes the hospital, claiming she was subjected

to age discrimination, national origin discrimination, and a

hostile work environment. Ptasznik sought federal relief

pursuant to the Age Discrimination in Employment Act of

1967 (“ADEA”), 29 U.S.C. § 621 et seq., Title VII of the Civil

2 No. 05-2687

Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C.

§ 1981. Ptasznik also asserted a state law claim against the

defendants for defamation.

St. Joseph Hospital and Resurrection Healthcare filed a

motion for summary judgment on all claims, and Ptasznik

filed a partial cross-motion for summary judgment on her

defamation claim. The district court granted summary

judgment to the defendants on all of Ptasznik’s claims,

and she now appeals.1 Because Ptasznik has failed to create

a triable issue of fact as to whether her employer discrimi-

nated against or defamed her, we affirm the judgment of

the district court.

I. BACKGROUND

The following facts are recited in the light most favor-

able to Ptasznik, who was the non-moving party for pur-

poses of summary judgment: Grace Ptasznik, a fifty-one

year old Polish immigrant, began working as a sleep

technician at the St. Joseph Hospital sleep center in 2001.

The hospital’s sleep center, which is located in Chicago,

Illinois, is a research facility that conducts sleep studies

to determine whether patients suffer from sleep disorders.

Elena Kurth was the Director of Rehabilitation Services

and the manager of the Sleep Center. Dr. Joanne Kirby was

responsible for clinical oversight of the St. Joseph Sleep

Center, as well as reviewing and interpreting sleep studies

performed by the technicians. Sara Piekielny served as

Director of Human Resources throughout Ptasznik’s tenure

at St. Joseph.

1

Ptasznik did not address in her appellate brief whether the

district court erred when it granted summary judgment on her

hostile work environment claim. Therefore, we assume she

has abandoned that claim on appeal.

No. 05-2687 3

When she started her job, Ptasznik initially reported to

Elena Kurth. In May 2002, Gina Ogunseye was promoted

and became Ptasznik’s immediate supervisor. According to

Ptasznik, Ogunseye made repeated harassing references

to her national origin and age. For instance, in November

2002, Ogunseye told Ptasznik “you’re old, you’re Polish, and

you’re stupid.” On another occasion, in January 2003,

Ogunseye allegedly told Ptasznik that she would be better

suited as a cleaning lady. Ptasznik also alleges that at other

unspecified times her supervisor made disparaging com-

ments about her age and Polish ancestry.

Ptasznik was ultimately terminated from her job, alleg-

edly for improperly performing a sleep study. During a

sleep study, a technician monitors the sleeping patient’s

vital statistics by attaching sensors or electrodes to the

patient; these sensors are then connected to a computer

that monitors the patient’s heart rate and oxygen levels.

Ptasznik does not dispute that she received a copy of the

hospital’s “Protocol for Record Documentation,” which

instructs sleep technicians to document the computer-

generated data every 30 to 45 minutes during the study. If

there are any discrepancies in the data, the hospital’s

protocol requires the technician to document and investi-

gate the problem and, in some instances, notify the sleep

center director or a hospital physician. If a patient’s blood

oxygen level registers at 89% or below, known as a

“desaturation,” the technician must first verify that the

sensor readings are accurate and then add oxygen by

applying continuous positive air pressure (“CPAP”). If blood

oxygen levels do not improve, the technician must inform

the director or a physician. If a study ends early, the

technician is required to document the reason for terminat-

ing the study.

On January 24, 2003, Ptasznik conducted a sleep study on

a patient to determine if the patient suffered from a sleep

disorder. At some point during the study, the patient

4 No. 05-2687

experienced trouble breathing, and Ptasznik made the

following entry on her “Tech Impression Sheet”:

Patient’s nose blocked. She states to have nose surgery

years ago. Patient says she has allergy, also. Patient

can’t close her mouth for longer than minute or two

because she can’t breathe. Mouth open when CPAP.

Patient asked for stronger air and she wanted to try.

She desaturated. I didn’t add oxygen because she is

having severe apnea and can’t get mouth closed for

CPAP. So I didn’t enter O2 for that reason.2

Ptasznik also noted on her tech impression sheet that she

observed the patient’s oxygen level drop to 43% and to 47%,

and she noted that the patient experienced “steady low

desaturations.” At some point during the study, Ptasznik

applied a CPAP to the patient, but subsequently removed

it when the patient reported being unable to breathe. After

the failed attempt to administer the CPAP, Ptasznik

terminated the study and stopped recording entries for the

patient in her log. Over the course of the eight hour study,

Ptasznik documented the patient’s oxygen levels on three

occasions. Ptasznik did not contact a doctor during or after

the study, and she did not document a reason for ending the

study early.

On February 7, 2003, Ogunseye, Kurth and Kirby met

with Ptasznik to discuss the January 24 sleep study.

Regarding the inconsistencies between the desaturation

data and her apparent failure to respond to the computer-

generated readings properly, Ptasznik stated that she

did not observe oxygen levels as low as 40-50% and, there-

fore, did not deem it necessary to recheck the accuracy of

2

Appendix to Def.’s Local Rule 56.1 (a)(3) Statement of Material

Facts, Ptasznik Dep. Ex.

No. 05-2687 5

the sensors connected to the patient.3 Ptasznik also stated

that she did not continue to apply oxygen because of the

patient’s intolerance for CPAP. After the meeting,

Ogunseye, Kurth, Kirby and Piekielny collectively de-

cided to terminate Ptasznik for endangering the patient

during the January 24 sleep study. Ptasznik unsuccessfully

appealed her termination through the hospital’s grievance

process. She also sought unemployment benefits, and her

supervisors testified at the benefits hearing that Ptasznik

was terminated for placing the patient at a critical risk of

harm. After Ptasznik’s discharge, a 30-year-old Caucasian

man who had worked part-time as a sleep technician was

hired full-time in the sleep center; a 31-year-old Afri-

can-American woman was also shifted from part-time to

full-time work.

Ptasnik filed suit against St. Joseph Hospital and Resur-

rection Healthcare, claiming she was subjected to age and

national origin discrimination, a hostile work environment,

and defamation. The United States District Court for the

Northern District of Illinois granted summary judgment to

the defendants. This timely appeal followed.

II. ANALYSIS

We review the district court’s judgment de novo, Ashman

v. Barrows, 438 F.3d 781, 784 (7th Cir. 2006), and con-

clude that Ptasznik has failed to create a material, triable

issue of fact to survive summary judgment. Summary

judgment is appropriate when the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with any affidavits, show that there is no genuine issue of

3

As we will discuss below, Ptasznik’s response is inconsistent,

given her notes on the tech impression sheet that she observed the

patient’s oxygen level reach 47% and 43%.

6 No. 05-2687

material fact and the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). If the moving party meets this

burden, the nonmoving party must then go beyond the

pleadings and set forth specific facts showing that there is

a genuine issue for trial. Fed. R. Civ. P. 56(e); Becker v.

Tenenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir.

1990). The existence of merely a scintilla of evidence in

support of the nonmoving party’s position is insufficient;

there must be evidence on which the jury could reasonably

find for the nonmoving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986).

A. Ptasznik’s Age and National Origin Discrimination

Claims

Ptasznik contends that her age and national origin

were impermissible motivating factors in the hospital’s

decision to terminate her in violation of the Age Discrimina-

tion in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621

et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., and 42 U.S.C. § 1981.4 Ptasznik

may establish her discrimination claims using either the

4

Ptasznik articulated her section 1981 claim in terms of national

origin discrimination. Although national origin discrimination is

not expressly prohibited under section 1981, the Supreme Court

has defined the term “race” in section 1981 broadly to include

identifiable classes of persons subjected to intentional discrimina-

tion on the basis of their ancestry or ethnic characteristics.

Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 756 (7th Cir. 2006)

(citing Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613

(1987)); see Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467,

1472 (7th Cir. 1993) (citing Lopez v. S.B. Thomas, Inc., 831 F.2d

1184, 1188 (2d Cir. 1987) (section 1981 protection extended to

employee of Puerto Rican descent who alleged national origin

discrimination)).

No. 05-2687 7

direct or indirect methods of proof, Scaife v. Cook County,

446 F.3d 735, 739 (7th Cir. 2006); she has failed to do so

under either method.

First, under the direct method, Ptasznik must put forth

evidence that her employer’s decision to terminate her

had a discriminatory motivation. Raymond v. Ameritech

Corp., 442 F.3d 600, 610 (7th Cir. 2006); Rudin v. Lincoln

Land Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005). She

may do so under the direct method by providing direct

evidence, such as an “outright admission” of discrimination,

Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir.

2005), or by presenting sufficient circumstantial evidence.

See Jordan v. City of Gary, 396 F.3d 825, 832 (7th Cir.

2005) (internal citations omitted). But such circumstantial

evidence must point directly to a discriminatory reason for

the termination decision. See Cerutti v. BASF Corp., 349

F.3d 1055, 1063 (7th Cir. 2003) (statements regarding

plaintiff’s age did not form a convincing mosaic of circum-

stantial evidence sufficient to prevail under direct method

where the prejudicial views were not clearly linked to

termination decision).

Viewing the facts in her favor, we are unpersuaded that

Ptasznik’s evidence is sufficient to create a triable issue

of discrimination under the direct method. The defendants

certainly do not admit discriminating against Ptasznik. And

Ogunseye’s comments that Ptasznik was “too Polish” and

“too old,” although off-color and probably inappropriate for

the workplace, nonetheless do not constitute sufficient

evidence that her employer was motivated to terminate her

because of her national origin or age. Jordan, 396 F.3d at

832. Ptasznik alleges that the discriminatory comments

occurred approximately five times in the six months before

her termination; however, because she cannot recall the

dates and details of Ogunseye’s statements, it is unclear

from the record that the comments were proximate to her

discharge. Also, terminated hospital employee Fred Burks

8 No. 05-2687

testified during his deposition that Ogunseye told him that

she wanted to “hire new people” for the sleep center.

However, this statement is too ambiguous to infer discrimi-

natory intent. And, even assuming Ogunseye wanted to hire

younger, non-Polish employees, such a preference alone is

not sufficient circumstantial evidence under the direct

method of proving discrimination. See Mlynczak v. Bodman,

442 F.3d 1050, 1058 (7th Cir. 2006) (evidence that a

decisionmaker generally favored hiring minorities does not

prove under the direct method that any particular decision

he made was for discriminatory reasons).

Ptasznik also fails to survive summary judgment

under the indirect method of proof set forth in the Supreme

Court’s decision in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). To establish a discrimination claim by

the indirect method, Ptasznik has the initial burden of

proving a prima facie case that (1) she is a member of a

protected class, (2) she performed reasonably on the job in

accord with her employers’ legitimate expectations, (3)

despite her reasonable performance, she was subjected to

an adverse employment action, and (4) similarly situated

employees outside of her protected class were treated more

favorably by the employer. Id.; Rozskowiak v. Vill. of

Arlington Heights, 415 F.3d 608, 614 (7th Cir. 2005).

If Ptasznik’s evidence is sufficient for a jury to find a

prima facie case of unlawful discrimination, then the

burden shifts to the defendants to rebut the prima facie

case by articulating a legitimate, nondiscriminatory rea-

son for terminating her. McDonnell Douglas, 411 U.S. at

802. Even if Ptasznik establishes conclusively that the

decision to fire her was motivated in part by discrimination,

the defendants may avoid liability by demonstrating that

they would have made the same decision despite the alleged

unlawful motive. Gleason v. Mesirow Fin. Inc., 118 F.3d

1134, 1140 (7th Cir. 1997) (citing Geier v. Medtronic, Inc.,

99 F.3d 238, 241 (7th Cir. 1996)).

No. 05-2687 9

Once the defendants articulate a legitimate reason for

termination, the burden then shifts back to Ptasznik to

prove that the stated reason for her termination is

pretextual. McDonnell Douglas, 411 U.S. at 804. “A pre-

text . . . is a deliberate falsehood.” Forrester v. Rauland-

Borg Corp., 453 F.3d 416, 419 (7th Cir. 2006); Kulumani v.

Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir.

2000) (“[P]retext means a dishonest explanation, a lie

rather than an oddity or an error.”). “The focus of a

pretext inquiry is whether the employer’s stated reason was

honest, not whether it was accurate, wise or well-consid-

ered.” Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir.

2000). Pretext is not necessarily established merely when

the plaintiff demonstrates the employer’s reason

was mistaken. An employer’s mistaken belief that the

plaintiff’s conduct merited termination is not unlawful, so

long as the belief was honestly held. See Wade v. Lerner

N.Y., Inc., 243 F.3d 319, 323 (7th Cir. 2001) (plaintiff’s

age discrimination claim failed where her employer mistak-

enly, but honestly, believed the plaintiff had been late for

work).

We have on several occasions upheld summary judg-

ment where the plaintiff failed to show his or her

employer’s reasons for the adverse action were pretextual.

For example, in Ballance v. City of Springfield, despite

evidence that a similarly situated black police officer had

been treated more favorably, we held that a white officer’s

discrimination suit could not survive summary judgment

because the police chief honestly believed the officer’s

disciplinary problems warranted his termination. 424 F.3d

614, 621 (7th Cir. 2005). Similarly, in Alexander v. Wiscon-

sin Dep’t of Health & Family Services, 263 F.3d 673, 687

(7th Cir. 2001), where an African-American plaintiff

claimed that his race motivated his termination, we con-

cluded evidence that fellow employees had made numerous

racially hostile comments did not rebut the employer’s

evidence that the plaintiff was terminated for insubordina-

10 No. 05-2687

tion and threatening coworkers. And, more analogously, in

Rozskowiak v. Village of Arlington Heights, 415 F.3d 608,

611 (7th Cir. 2005), the plaintiff’s supervisor told him he

“would probably be losing [his] job because [he] was a

stupid Polack” and made other derogatory comments about

his Polish ancestry. We affirmed summary judgment to the

defendants, reasoning that the derogatory remarks were

unrelated to the plaintiff’s termination, and the plaintiff

was terminated for legitimate, job-related reasons. Id. at

612.

Even assuming that the record creates an initial inference

of national origin and age discrimination, the defendants

rebutted Ptasznik’s prima facie case by articulating a

legitimate reason for terminating her. Namely, the hospital

concluded that Ptasznik failed to document her results of

the sleep study every 30-45 minutes, endangered a patient

when she failed to contact appropriate medical personnel,

and failed to document the reason for terminating the

study. Ptasznik has failed to show St. Joseph’s legitimate,

non-discriminatory reasons for firing her were pretextual.

To attempt to show pretext, Ptasznik maintains that

hospital staff members, including Ogunseye, were aware

that a computer glitch had generated inaccurate patient

oxygen levels before the January 24 sleep study. Further,

Ptasznik contends that she was unaware of the inaccurate

computer data until after the study ended. However, in her

technician impression log, Ptasznik manually recorded that

the patient’s oxygen levels dropped to 47% and 43% and

that the patient experienced “steady low desaturation.”

Even if we agreed with Ptasznik that she should not have

been discharged for a computer glitch that was known to

the hospital, the hospital has proffered other legitimate

reasons for her termination that she has failed to rebut.

Ptasznik has failed to explain why she did not document the

reason for the early termination of the sleep study. Further,

when Ptasznik was asked during her deposition why she

No. 05-2687 11

failed to record the patient’s vitals every 30-45 minutes as

protocol required, she responded: “I was busy with other

things, and it was not absolutely necessary to put more.”5

Thus, given Ptasznik’s admitted failure to follow hospital

protocol in at least two other respects, summary judg-

ment on her discrimination claims was proper.

By so finding, we are not condoning the alleged actions of

Ptasznik’s employer. Arguably, the hospital overreacted and

unnecessarily fired an employee with an otherwise compe-

tent performance record. Nevertheless, it is not our role to

determine the competency of or interfere in employment

decisions simply where we believe an employer has made a

poor choice. Federal courts have authority to correct an

adverse employment action only where the employer’s

decision is unlawful, and not merely when the adverse

action is unwise or even unfair. “We do not sit

as a super-personnel department with authority to re-

view an employer’s business decision as to whether someone

should be fired or disciplined because of a work-rule viola-

tion.” Ballance, 424 F.3d at 621. Therefore, our inquiry is

limited to whether there is a material factual dispute as to

whether the employer honestly believed the stated, legiti-

mate reasons for the adverse action. Unfortunately for

Ptasznik, her evidence is insufficient for a jury to reason-

ably conclude that an impermissible factor such as her age

or national origin motivated the hospital’s decision to

terminate her. Because she has failed to discredit the

defendants’ legitimate, non-discriminatory reasons for firing

her, the district court did not err when it granted summary

judgment for St. Joseph Hospital and Resurrection

Healthcare.

5

Appendix to Pl.’s Response to Def.’s Rule 56.1(a)(3) Statement

of Material Facts, Ptasznik Dep., p. 173.

12 No. 05-2687

B. Ptasznik’s Defamation Claim

Ptasznik also asserted a claim under Illinois law against

the defendants for defamation. Ptasznik maintains that the

defendants knowingly and falsely accused her of putting the

patient’s safety at risk during the sleep study, depriving the

patient of 50% oxygen, and directly endangering the

patient. Ptasznik contends the defendants published these

defamatory statements in emails and documents created

during its internal investigation of her conduct, as well as

during an unemployment benefits hearing after her dis-

charge. Ogunseye and Kurth later testified in their deposi-

tions that they lacked the expertise to make such conclu-

sions. The district court granted summary judgment to the

defendants, and we affirm.

“To prove defamation, a plaintiff must show that the

defendant made a false statement about the plaintiff, there

was an unprivileged publication to a third party by the

defendant, and the publication damaged the plaintiff.”

Popko v. Cont’l Cas. Co., 823 N.E.2d 184, 188 (Ill. App. Ct.

2005). Illinois law recognizes a per se cause of action for

defamation when the defamatory statements are so

serious that reputational injury may be presumed. Defama-

tion per se claims include falsely imputing an inability to

perform or want of integrity in the duties of office, employ-

ment, or profession. Van Horne v. Muller, 705 N.E.2d 898,

903 (Ill. 1998). However, vague, unprovable statements and

statements of opinion do not give rise to a defamation claim;

instead, Illinois law requires that the allegedly defamatory

statement contain an objectively verifiable factual asser-

tion. Wynne v. Loyola Univ. of Chicago, 741 N.E.2d 669, 676

(Ill. App. Ct. 2000).

Here, Ptasznik claims the defendants defamed her in

various emails and documents that were circulated among

hospital personnel during the investigation of the January

24 sleep study. For example, in an email to Human Re-

No. 05-2687 13

sources Director Piekielny, Kurth wrote that Ptasznik “put

us at significant risk: the patient could have gone into

arrhythmia and coded.” Also, in a timeline Ogunseye and

Kurth created entitled “Grace termination events”, the pair

stated that Ptasznik’s conduct placed the patient at signifi-

cant risk.6 According to Ptasznik, the truth of

these statements is readily verifiable, and Kurth and

Ogunseye knew them to be false. Although as a theoretical

matter, the truth of Kurth and Ogunseye’s statements

may well be verifiable, we nonetheless conclude that

summary judgment was proper because Ptasznik has failed

to produce evidence suggesting that the statements were

false. Ptasznik’s own observations, as recorded on the

technician impression sheet, indicate that the patient

experienced “steady low desaturation” at “43%” and “47%,”

which would have placed the patient at risk. Even if the

readings were inaccurate because of a computer glitch,

Ptasznik presents no evidence that she was aware of the

degree of imprecision. Unless she knew that the degree

of imprecision safely placed the patient above the 89%

(desaturation) threshold, the evidence only supports a

finding that Ptasznik should have taken action. Thus,

Ptasznik’s supervisor’s statements were consistent with her

own records of the study, and, without evidence to the

contrary, a jury could not reasonably conclude that the

statements were intentionally or recklessly false.7

6

Notably, under Illinois law, statements are sufficiently pub-

lished for defamation purposes when they are recited in an

interoffice document, such as an investigative memorandum

regarding whether an employee should be fired. See Popko, 823

N.E.2d at 188; see also Gibson v. Philip Morris, Inc., 685 N.E.2d

638, 645 (Ill. App. Ct. 1997) (defamatory statements regarding

plaintiff ’s termination were published when they were included in

a corporate memo to the company’s human resources department).

7

The defendants also contended the statements were protected

by a qualified privilege that they did not abuse. See, e.g., Popko,

(continued...)

14 No. 05-2687

Ptasznik also argues that the defendants defamed her

when Kurth, Ogunseye, and Piekielny testified at her

unemployment benefits hearing that she “directly endan-

gered a patient” which resulted in a “critical risk of harm”

to the patient during a sleep study. This argument likewise

fails. Illinois law provides the following absolute privilege

for statements made during and in connection with an

unemployment benefits proceeding:

Sec. 1900.1. Privileged Communications. All letters,

reports, or communications of any kind, either oral or

written, from an employer or his workers to each other,

or to the Director or any of his agents, representatives,

or employees, made in connection with the administra-

tion of this [Unemployment Benefits] Act shall be

absolutely privileged and shall not be the basis of any

slander or libel suit in any court of this State unless

they are false in fact and malicious in intent.

820 ILL. COMP. STAT. 405/1900.1 (2006).

In Cianci v. Pettibone Corp., 698 N.E.2d 674, 680 (Ill. App.

Ct. 1998), the Illinois Appellate Court held that a super-

visor’s statements at an unemployment compensation

hearing enjoyed absolute privilege because there was no

evidence of reckless disregard for the truth or falsity of

the statements. Similarly, here, the allegedly defamatory

statements were made during an unemployment benefits

hearing, and Ptasznik has failed to set forth evidence

that the testimony was false and malicious. Therefore,

the district court did not err when it granted summary

judgment on Ptasznik’s defamation claim.

7

(...continued)

823 N.E.2d at 190; Larson v. Decatur Mem’l Hosp., 602 N.E.2d

864, 867 (Ill. App. Ct. 1992). In light of the result we have

reached, we need not address this additional argument.

No. 05-2687 15

III. CONCLUSION

For the reasons set forth in this opinion, the judgment

of the district court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-21-06