Opinion
IPO0-1359-C-M/S
December 20, 2001
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the motion for summary judgment filed by Defendants St. Joseph Hospital and Health Center ("the Hospital"), Dr. David R. Gettle ("Dr. Gettle"), and Dr. John Rudy ("Dr. Rudy"), on Plaintiff Dr. Madhu Rao's ("Dr. Rao") federal claims. Dr. Rao filed this matter alleging claims of sexual harassment, retaliation, and discrimination based upon her sex and national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Dr. Rao also alleged claims of retaliation and national origin discrimination under 42 U.S.C. § 1981. Defendants did not move for summary judgment on Dr. Rao's claims under Indiana law, so the Court need not discuss them. The parties have fully briefed the issues, and the matter is now ripe for ruling.
I. FACTUAL BACKGROUND A. DR. RAO'S AGREEMENT AND DUTIES WITH HOSPITAL
Dr. Rao has an M.D. and is Board Certified in Psychiatry. Stmt. of Facts ¶ 78. She has been working as a professional psychiatrist for 15 years. Id. ¶ 80. Dr. Rao first contracted with the Hospital as a psychiatrist in 1992. Id. ¶ 81. More recently, on or around March 2, 1998, the Hospital entered into a Medical Director Agreement ("Agreement") with her. Id. ¶ 5. The Agreement had a term of two years with no provision for automatic renewal. Id. ¶ 6. The specific term of the Agreement ran from March 2, 1998, through and including February 28, 2000. Id. ¶ 7. Included in the Agreement was the specific provision under which the parties agreed that Dr. Rao would perform her duties as an independent contractor. Id. ¶ 8. The Agreement specifically provided as follows:
Independent contractor: In performing the services herein specified, MEDICAL DIRECTOR will be acting as an independent contractor. HOSPITAL and MEDICAL DIRECTOR agree that MEDICAL DIRECTOR is not an employee of the HOSPITAL. Nothing contained in this Agreement shall be construed to create a partnership or joint venture between HOSPITAL and MEDICAL DIRECTOR, nor authorize either HOSPITAL or MEDICAL DIRECTOR to act as general or special agent of the other party in any respect, except as specifically set forth in this Agreement.
Id. ¶ 28.
For all amounts it paid to Dr. Rao for professional medical services rendered to patients at the Behavioral Sciences Department, the Hospital provided her with a Form 1099 for tax purposes. Id. ¶ 26.
The Hospital paid Dr. Rao according to the agreed-upon fee schedule contained in the Agreement. Id. ¶ 30. The Agreement also provided the following responsibilities for Dr. Rao:
(a) Be accountable to the Director of Behavioral Services for the medical direction and general clinical oversight of the PROGRAM, monitor the quality of medical care provided, participate in quality assurance activities as required by the HOSPITAL and its medical staff, and assist HOSPITAL in meeting the standards of the Joint Commission on Accreditation of Hospitals, the licensing requirements of the Indiana State Board of Health, and the certification requirements of the Indiana Department of Mental Health.
(b) Review and sign all treatment plans and health insurance claims for patients under MEDICAL DIRECTOR'S care or delegate such responsibilities to designated physicians as necessary and appropriate.
(c) Assist in establishing the PROGRAM as strong and integral services of the HOSPITAL; assist in promoting the PROGRAM to the community at large.
(d) Participate in managed care programs that the HOSPITAL deems appropriate and specifically furnish evidence of Blue Cross Blue Shield Preferred Care Physician status, having signed the Preferred Provider Agreement and the October 1, 1998, Addendum.
Id. ¶ 31. The Hospital did not withhold income, social security, or other employment taxes from the professional fees it paid Dr. Rao. Id. ¶ 14. The Hospital did not provide Dr. Rao with any health, medical, or life insurance benefits, nor did it provide her any retirement or disability benefits. Id. ¶ 15. In addition, Dr. Rao was not covered by worker's compensation. Id. ¶ 16. At all times during her relationship with the Hospital, Dr. Rao provided her own medical malpractice insurance. Id. ¶ 17. She did not receive paid vacation or other paid benefits from the Hospital. Id. ¶ 18.
Dr. Rao was one of the main physicians in the Behavioral Services Program at the Hospital. Id. ¶ 103. She was present at the Hospital at least 30 hours per week, as stipulated by her Agreement, but she also regularly spent time at the Marion office and was often busy with patients on the weekends. Id. ¶ 104. Dr. Rao was the primary admitting psychiatrist for the inpatient unit and the adolescent unit between 1996 and 1998. Id. ¶¶ 106-107. According to Dr. Rao, she was also responsible for 85% of all psychiatric services provided by the Stress Center. Id. ¶ 108. Dr. Rao covered patients who came in for inpatient treatment and gave orders for their treatment. Id. ¶ 109. She also supervised the inpatient treatment patients. Id. ¶ 110. Dr. Rao was available for outpatient services for psychiatric consultation, for medical consultation, or for medication reviews. Id. ¶ 111. When Dr. Bowman partially retired toward the end of 1995, Dr. Rao discussed with Dr. Rudy — the Director of the Behavioral Services Department — several times the need for additional coverage. Id. ¶ 114.
Dr. Bowman apparently retired from the Hospital in 1996. Id. ¶ 51. According to the Hospital, from 1989 to 1995 it had an independent contractor relationship with Dr. Bowman. From approximately 1992 until 1995, Dr. Bowman was Co-Medical Director of the Stress Center with Dr. Rao. Unlike Dr. Rao, Dr. Bowman's contract with the Hospital contained a non-compete clause that prevented him from competing with the Hospital. Id. ¶¶ 35, 37; Rao Aff. ¶ 5.
Dr. Rao was not required under the Agreement to report at any particular time to any particular office in the Hospital. Id. ¶ 9. Instead, the only stipulation in the Agreement was that Dr. Rao be present at the Hospital for a minimum of 30 hours per week. Id. ¶ 12. According to Dr. Rao, however, the Hospital controlled her schedule and the times when she saw patients. Rao Dep. at 91; Plaintiff's Ex. 14, No. 1. For example, when Dr. Rao asked if she could see certain patients at times outside the schedule the Hospital set for her, she was told that she could not see any patients outside the normal Hospital operating hours. Rao Dep. at 92-93.
Also pursuant to the Agreement, the Hospital provided office space at no cost to Dr. Rao for her duties as Medical Director. Stmt. of Facts ¶ 10. The office space served the dual purpose of allowing her to perform her duties as Medical Director and see patients in her capacity as a psychiatrist. Id. ¶ 133. As part of Dr. Rao's duties, the Hospital required her to meet with staff once a week to coordinate the treatment of patients. Id. ¶ 130.
Dr. Rao possessed significant specialized skills as a psychiatrist. Id. ¶ 19. According to the Hospital, she had the authority to exercise her own independent discretion concerning the care she delivered to patients based on her professional judgment as to what was in their best interests. Id. ¶ 20.
Dr. Rao disputes this, however. For example, there were many times that she wanted to discontinue treatment of patients because they failed to comply with her medical advice. The Hospital, however, told her she had to accept those patients because they were under a program with which the Hospital had contracted to provide services. Plaintiff's Ex. 14. In November 1999, Dr. Rao terminated the treatment of a patient due to the patient's mother's refusal to follow treatment. Dr. Rudy insisted that Dr. Rao continue treatment of the patient because the patient was receiving therapy from one of the Hospital's contract therapists. Id.
The Hospital also contends that it did not control Dr. Rao in the methods of diagnosis or treatment of patients. Stmt. of Facts ¶ 21. Dr Rao disagrees, pointing to an incident in April of 1999 when two female patients were admitted under Dr. Rao's care. Dr. David Seltzer provided weekend coverage of them and then scheduled them back to meet with him instead of Dr. Rao. Plaintiff's Ex. 14. The following month, Dr. Seltzer changed the diagnosis of one of Dr. Rao's patients, discontinued the medication Dr. Rao had prescribed, and ordered the patient to follow up with him instead of with Dr. Rao. Plaintiff's Ex. 10.
The parties also dispute the extent of Dr. Rao's discretion in admitting patients and her freedom to work at other hospitals. The Hospital contends that Dr. Rao was not required to admit patients and was free to maintain medical staff privileges at other hospitals and mental health facilities during the time she was under contract with it. Stmt. of Facts ¶ 22. Dr. Rao, however, states that she was required to admit patients to the Hospital and could not refuse to admit them when they were part of the various Employee Assistance Programs or other providers with whom the Hospital had a relationship. Rao Dep. at 101-102.
In addition, from mid-1994 until early 2000, Dr. Rao did not provide any medical services for any other competing mental health facility or hospital. Rao Aff. ¶ 175. Although Dr. Rao's Agreement did not specifically prohibit her from having a competing practice, the Hospital made it clear to her many times that she was not to have a competing practice, and that she was not to admit patients at competing hospitals. Rao Dep. at 94-96; Plaintiff's Ex. 14. For example, Dr. Rao was specifically told that she could not have a relationship with Howard Community Hospital. Rao Aff. II ¶ 15.
Earlier in her tenure with the Hospital, Dr. Rao did provide services for other entities. For example, from 1992 to 1994 she maintained medical staff privileges that allowed her to admit and treat patients at Koala Hospital and Counseling Center in Lebanon, Indiana. Stmt. of Facts ¶ 23. Also during the course of her relationship with the Hospital, she saw and treated patients at the Indiana Girls School in Kokomo; Family Services of Marion, Indiana; and the Kokomo Academy. Id. ¶ 24. Dr. Rudy instructed Dr. Rao to supervise the therapists at Family Services in Marion to develop a referral source. Dr. Rao saw no patients at that facility, but instead spent only a couple of hours every other week supervising the therapists so they would become a referral source. Rao Aff. II ¶ 16. The Hospital also had a contract with Kokomo Academy to provide emergency room psychological and psychiatric services. Dr. Rudy asked Dr. Rao to provide the psychiatric services for this facility. After the contract ended, the facility asked Dr. Rao to continue providing her services. Dr. Rudy approved this arrangement until a replacement was found. Id. ¶ 17.
Despite the fact that her Agreement did not stipulate as much, Dr. Rao had to be available at all times to act as a consultant to the emergency room patients and admit patients if they met psychiatric or chemical dependency criteria. Stmt. of Facts ¶ 90. According to Dr. Rao, she was also subject to performance evaluation by the Hospital, although she does not explain in detail what all that entailed. Id. ¶ 93. The Hospital denies that she was subject to performance evaluations like other Hospital employees.
Rudy Aff. ¶ 20. Dr. Rao was subject to evaluations by the Office of Medical Affairs every two years to be re-credentialed and to stay on as active medical staff. Stmt. of Facts ¶ 93. The number of patients assigned to Dr. Rao and the demands placed upon her required her to spend at least 80 hours per week fulfilling the Hospital's requirements. Id. ¶ 94.
The majority of the weekend call consults were Dr. Rao's responsibility. Id. ¶ 95. In addition, all psychiatric consults requested from any floor of the Hospital had to be done by Dr. Rao, with the exception of when Dr. Bowman was occasionally available. Id. ¶ 98. Dr. Rao had discussed with Dr. Rudy that she needed more physician assistants and staff to cover the caseload, particularly on the weekends. Rudy Dep. at 95. Dr. Rao was also required to provide services at the Marion office 2 1/2 days per week to develop referral sources for the Hospital. Stmt. of Facts ¶ 97. Dr. Rudy told Dr. Rao that she had to refer patients to the Hospital's own therapists. Id. ¶ 119.
Dr. Rao could not use the therapist of her choice; instead, she was required to use the therapists with whom the Hospital had contracted. Id. ¶ 120. The Hospital disputes this, claiming that Dr. Rao had the authority at all times to exercise her own independent discretion concerning the medical care she delivered to her patients based upon her professional judgment as to what medical care was in their best interests. In addition, according to the Hospital, Dr. Rao's medical evaluations, diagnoses, treatment methods, and medication prescriptions were based exclusively upon her professional judgment. The Hospital also contends that Dr. Rao was not required to admit patients to the Hospital. Rudy Aff. ¶¶ 16-17.
Dr. Rao could not bill patients differently based upon the type of services provided; she had to bill all patients a flat rate that was set by the Hospital. Stmt. of Facts ¶ 122. Billing statements to various referral agencies were sent under the Hospital's letterhead and its federal identification number. Id. ¶¶ 123-124. Moreover, the Hospital determined with whom Dr. Rao worked in terms of staff and controlled how that staff administered her practice. Id. ¶ 126. Although it is the Hospital's position that Dr. Rao could turn away any patients she wanted to, Dr. Rao testified that if the Hospital assigned a patient to her, whether she wanted to deal with that particular patient or not, she had to take that patient. Id. ¶ 128. Also, although the Hospital disputes it, Dr. Rao asserts that she had no control over the extent of therapy a patient was to receive. Id. ¶ 129.
B. DR. RAO'S PROBLEMS WITH DR. SELTZER
The only other Medical Director in the Hospital's Behavioral Services Program during December 1998 through September 1999 was Dr. Seltzer. Id. ¶ 52. Dr. Seltzer did not have the authority to give Dr. Rao a raise or to lower her compensation; to promote or demote her; to terminate her Agreement; to send her home early; or to change her employment status regarding hours served. Id. ¶ 77.
Dr. Rao and Dr. Seltzer shared many of the same responsibilities; their positions were very similar in that both were psychiatrists in the Behavioral Services Department of the Hospital. Id. ¶ 181. In addition, both were Medical Directors, and both reported to Dr. Rudy. Id. ¶¶ 184-185. They admitted and treated inpatients and outpatients, had inpatient staffing, were on rotating call, and did consultations on the medical side of the Hospital. Id. ¶¶ 186-189. In addition, they both went to off-site areas connected with the Hospital to treat patients. Id. ¶ 190.
Unlike Dr. Rao, Dr. Seltzer did not have a written contract. Id. ¶ 55. Dr. Seltzer's position description and Dr. Rao's Agreement contained similar job descriptions. For example, both documents stipulated that they would assist in establishing the Behavioral Services Program as a strong and integral part of the Hospital. Id. ¶ 192. Both documents also required the doctors to assist in promoting the program to the community at large, and stipulated that the doctors would participate in managed care programs that the Hospital deemed appropriate. Id. ¶¶ 193-194. Kathleen Korbelak ("Korbelak"), CEO of the Hospital, understood that Dr. Seltzer and Dr. Rao were co-Medical Directors, and assumed that they would work their responsibilities out collaboratively. Id. ¶ 195.
As an employee, Dr. Seltzer was subject to the Hospital's employment policies and employee evaluation standards and requirements. Id. ¶ 57. Whereas Dr. Rudy received complaints from referral sources about Dr. Rao, he did not receive similar complaints from referral sources about Dr. Seltzer. Id. ¶ 58. In the Hospital's opinion, Dr. Seltzer — unlike Dr.Rao — effectively promoted the program. Id. ¶ 59.
Dr. Rao claims that the Hospital told all therapists to report to Dr. Seltzer without consulting with her. Many of these therapists were seeing Dr. Rao's patients and ordinarily would have consulted Dr. Rao.
The Hospital, however, gave Dr. Seltzer the authority to supervise these therapists and the care of them without Dr. Rao's knowledge. Id. ¶ 139. Dr. Seltzer's authority also resulted in some of Dr. Rao's patients being switched over to his care. Id. ¶ 140. According to Dr. Rao, several therapists took it upon themselves to switch patients over to Dr. Seltzer's care without consulting her. Id. ¶ 141. When she asked why some of her patients were being switched over to Dr. Seltzer, she was told that the patients had requested the switch. Id. ¶ 142. One time Dr. Rao walked by a patient and David Stouse, the Assistant Director of Behavioral Services at the Hospital, and the patient pointed to Dr. Rao and said, "there is my doctor." Id. ¶ 145. Stouse did not respond to this comment, and instead called Dr. Seltzer to take care of the patient. Id. ¶ 146.
Dr. Rao apparently thought the Dr. Seltzer was trying to "steal" her patients. As Dr. Rao is responsible for billing patients, any "patient stealing" on the part of Dr. Seltzer could result in a material loss of benefits to her. Id. ¶ 148. Dr. Rudy's notes reflect that he was aware of Dr. Rao's allegation of "patient stealing" by Dr. Seltzer. Id. ¶ 150; Plaintiff's Ex. 10. Dr. Rudy specifically noted Dr. Rao's allegation that Dr. Seltzer had changed the diagnosis of one of her patients, discontinued the medication she had prescribed, and ordered the patients to follow up with him instead of Dr. Rao. Stmt. of Facts ¶ 151.
According to Dr. Rao, one of her patients ended up in the intensive care unit for four days because of Dr. Seltzer's interference. The Hospital did not reprimand Dr. Seltzer in any way. Id. ¶¶ 152-153.
On May 10, 1999, Dr. Rudy documented that, due to incidents of Dr. Seltzer's inappropriate conduct during sessions with Dr. Rao's patients, she had requested that he not be allowed to supervise her patients. Id. ¶ 155. Dr. Rudy did not allow Dr. Rao to supervise the care of her own patients with therapists until July 1999, despite many requests. Rao Aff. II ¶ 7. In response to Dr. Rao's complaints about Dr. Seltzer's conduct toward patients and other complaints, Dr. Rudy and Stouse told her that she was paranoid and causing problems. Stmt. of Facts ¶ 157.
In August of 1999, the Medical Executive Committee ("MEC") investigated Dr. Seltzer. As part of its investigation, the MEC received a large amount of information from Dr. Rao documenting Dr. Seltzer's sexual harassment of patients. Id. ¶¶ 240-241. Dr. Rao also submitted information concerning Dr. Seltzer's unauthorized and inappropriate commandeering of her patient care, medications, and diagnoses. Id. ¶ 242.
The MEC did not give Dr. Rao any information concerning the nature and extent of its investigation of Dr. Seltzer, but informed her that the result of her complaint would be "greater scrutiny and watchfulness." Id. ¶ 244. Dr. Gettle, Vice President of Medical Affairs, also assured Dr. Rao that they were "going to be watching" Dr. Seltzer. Id. ¶ 246. The Hospital terminated Dr. Seltzer in 1999. Dr. Gettle denies knowing what led up to Dr. Seltzer's termination. Id. ¶¶ 252-253.
C. DR. RAO'S COMPLAINTS TO THE HOSPITAL AND THE TERMINATION OF HER AGREEMENT
Dr. Rao apparently first complained to the Hospital in 1994 that she had been harassed by Dr. Bowman. Id. ¶ 67. Despite her complaints about Dr. Bowman, the Hospital renewed her Medical Agreements. Id. ¶ 68. Beginning in February 1999, Dr. Rao contends that Dr. Seltzer began sexually harassing her. Id. ¶ 260. Every single day until the end of March 1999, as Dr. Rao walked in Dr. Seltzer would tell her that she was so wonderful, was so lovely, and that her clothes were wonderful. He would put his arms around her and tug on her clothes. He would also tell her sexual jokes. Rao Dep. at 132-135.
On one occasion in March of 1999, Dr. Seltzer took Dr. Rao by the shoulder, jerked her around and said, "You look lovely. What a lovely dress. Let me look at your back." Stmt. of Facts ¶ 265. Dr. Seltzer would also tug on Dr. Rao's clothes and made sexual jokes to her. Id. ¶ 268.
Dr. Rao first reported Dr. Seltzer's harassment to Dr. Rudy in February of 1999. Id. ¶ 269. The next month, Dr. Rao again discussed Dr. Seltzer's behavior with Dr. Rudy. At that time, Dr. Rudy indicated that he had talked to Dr. Seltzer about his conduct and stated to Dr. Seltzer "that it is not appropriate." Id. ¶ 71. Dr. Rudy had a second conversation regarding Dr. Seltzer's behavior in late March 1999, following the incident in which Dr. Seltzer stated how lovely Dr. Rao looked and admired her dress and ultimately spun her around and said, "Let me see your back." Id. ¶ 72. Following Dr. Rudy's second discussion, Dr. Seltzer's sexually harassing conduct as described by Dr. Rao ceased, at least as far as that conduct related to Dr. Rao personally. Id. ¶ 73.
On May 12, 1999, shortly after Dr. Rao started reporting Dr. Seltzer's sexual harassment of her and her patients, Dr. Rudy gave Dr. Seltzer a good three-month progress report. Id. ¶ 238. In the evaluation, Dr. Rudy wrote, "Dr. Seltzer has excellent rapport with patients and staff. He has good interpersonal skills." Id. ¶ 239.
According to Dr. Rao, when she started voicing her concerns about Dr. Seltzer's sexual harassment and medical misconduct, the Stress Center staff began calling her an "aggressor." Id. ¶ 174. Dr. Seltzer began criticizing her and making negative comments about her to other physicians, patients, and staff. Id. ¶ 175. At some point, Dr. Rudy learned that Dr. Seltzer had been critical of Dr. Rao professionally with one of the physicians associated with American Health Network. Id. ¶ 176.
Dr. Rao also believes that the Hospital retaliated against her for complaining about Dr. Seltzer's sexual harassment of patients. Id. ¶ 273. On May 10, 1999, Dr. Rao reported to Dr. Rudy that during a session, Dr. Seltzer held a patient's hand and told her that they were "connecting." Id. ¶ 275. Dr. Rao also reported that after the session, Dr. Seltzer followed her into the hospital room, sat on the bed, put his arms around her, and said, "I told you we have this connection. Otherwise, how would I have known to come here and see you? How would I have known that you were needing me?" Id. ¶ 276.
A different patient contacted Dr. Rao when stories about Dr. Rao's and Dr. Seltzer's problems started appearing in the news. Id. ¶ 278. This patient told Dr. Rao that, during her sessions with Dr. Seltzer, he would insist on sitting close to her, hugging her, and commenting on her body. Id. ¶ 279.
In June 1999, Dr. Rao complained to the MEC, Korbelack, and Dr. Gettle about Dr. Seltzer's sexual harassment of her and one of her patients. Id. ¶ 177; Plaintiff's Ex. 14, No. 7. Dr. Rao told Dr. Gettle that she was afraid that Dr. Seltzer would retaliate against her and that she wanted him to do something about it. Rao Dep. at 220.
In June or July 1999, Dr. Rao told Dr. Rudy that she was going to the Equal Employment Opportunity Commission ("EEOC") to file a formal complaint if her concerns about Dr. Seltzer were not addressed. Rao Aff. ¶ 127. In August of 1999, Dr. Rao obtained the services of attorney Michael Sutherlin, who sent a letter to Korbelak and Dr. Gettle concerning Dr. Rao's worries about Dr. Seltzer. Stmt. of Facts ¶ 162. The letter threatened that Dr. Rao would go to the Licensing Board and do whatever else was necessary. Id. ¶ 164. Dr. Rao and her attorney instructed Korbelak and Dr. Gettle that they had two weeks to respond. Id. ¶ 165. Neither Korbelak nor Dr. Gettle responded to the letter. Id. ¶ 166. Dr. Rao also told Dr. Rudy that she was going to the EEOC to complain about discrimination if the Hospital did not renew her Agreement. Rao Aff. ¶¶ 152-154.
Also around August 1999, Dr. Rao talked to Dr. Galvin, the chairperson of the Ethics Committee of the Indiana Psychiatric Society, about her concerns and about retaliation at the Hospital. Rao Dep. at 221. Dr. Galvin told her that the ethics code required her to fulfill her responsibility and to do something about the situation at the Hospital as it related to Dr. Seltzer. Id. at 221.
On September 14, 1999, Dr. Rao complained to the Indiana Attorney General's Office about Dr. Seltzer's sexual harassment. Stmt. of Facts ¶ 270. Dr. Rao complained that she had gone through the Hospital administration concerning Dr. Seltzer's inappropriate conduct toward her, but received no feedback. Id. ¶ 271. She also expressed her concern that, despite her complaints to the Hospital, Dr. Seltzer continued to practice medicine and that he was a "danger and threat to patients." Id. ¶¶ 280-281. Dr. Rao's complaints to the Attorney General's Office did not reference discrimination based upon her national origin. Id. ¶ 66.
In late January 2000, the Hospital decided not to renew Dr. Rao's Agreement. Id. ¶ 64. On or around February 3, 2000, Dr. Rudy informed Dr. Rao of the Hospital's intention not to renew her Agreement. Id. ¶ 60. In a letter dated that same day, Dr. Rudy set forth specific reasons in justification for the Hospital's decision. Id. ¶ 61. At the time it delivered the February 3, 2000, letter informing Dr. Rao of the decision not to renew her Agreement, the Hospital had no notice that she had filed a charge of discrimination with the EEOC. Id. ¶ 65.
According to the Hospital, it decided not to renew Dr. Rao's Agreement for several reasons, including:
(a) Her refusal to comply with Dr. Rudy's instructions that she establish a cooperative relationship with the medical staff.
(b) Her failure to promote the Behavioral Services Program to the community as required by the Agreement.
(c) Her failure to establish the Program as a strong and integral service of the Hospital when she adversely affected employee morale by harassing, intimidating and badgering nurses and other staff in relation to her dispute with Dr. Seltzer.
(d) She did not establish a cooperative relationship with the medical staff, which had the effect of compromising the trust of medical staff in the Behavioral Services Program.
Id. ¶ 69. Dr. Rudy indicated to Deborah Sparks, a nurse who was responsible for helping Dr. Rao in managing care of psychiatric patients, that the reasons given were not the real reason for Dr. Rao's termination. Sparks Aff. ¶ 30. According to the Hospital, it replaced Dr. Rao with Dr. Rajendra Trivedi, an Indian.
E. DR. RAO'S EEOC CHARGES
Dr. Rao filed a charge of discrimination with the EEOC on either February 2 or February 3, 2000. Although it is not clearly marked, the charge appears to be filed-stamped February 3, 2000. See Defendant's Ex. 15. The charge referenced Dr. Seltzer's retaliation against Dr. Rao for her reports of his sexual harassment of her and her patients. Stmt. of Facts ¶ 171. The charge also alleged that Dr. Rao had been sexually harassed and discriminated against because of her sex and national origin. Id. ¶ 1. Dr. Seltzer is the only individual named that the Hospital allegedly treated more favorably. Id. ¶ 53.
Nearly a week later, Dr. Rao filed another EEOC charge alleging additional violations of Title VII in that she had been discriminated against based upon her sex and national origin, and that she had been retaliated against. Id. ¶ 2. Dr. Rao contends that she filed this second charge on February 9, 2000, but the file-stamped copy of the charge indicates it was filed on February 10, 2000. See Defendant's Exhibit 15.
This second charge resulted from the Hospital's decision not to renew her Agreement. Stmt. of Facts ¶ 3. Dr. Rao believes that she was continually "put down" and not acknowledged because she was an Indian woman. Id. ¶ 283. According to Dr. Rao, Dr. Gettle and Dr. Rudy said they were not going to tolerate a foreign woman coming in and telling them what to do. Rao Dep. at 166. Also, Dr. Rao alleges that Dr. Rudy told her there was no reason to justify the kind of treatment she was getting. Stmt. of Facts ¶ 286. Sometime in June 1999, Dr. Rudy allegedly told Dr. Rao that she was being discriminated against.
Dr. Rao also claims that he told her that she had three strikes against her: her sex, her national origin, and the fact that she lived outside of Kokomo. Id. ¶¶ 287-288. Dr. Rudy denies saying this, and instead explains that in response to a conversation with Dr. Rao where she told him that she felt like she had to work harder to prove herself because of her ethnic background and because of her sex, he told her that she probably felt like she had three strikes against her because she was female, was Indian, and lived outside of Kokomo. Rudy Dep. II at 55.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Logan v. Caterpillar, Inc., 246 F.3d 912, 923 (7th Cir. 2001). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has recently emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. TITLE VII STANDARDS
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. An employer may also be liable for discrimination within the meaning of Title VII if an employee is subject to a hostile work environment based on her sex. In addition, Title VII makes it unlawful for an employer to retaliate against an employee for various protected activities, including complaining of discrimination. 42 U.S.C. § 2000e-3(a).
Where a plaintiff has no direct evidence of discrimination, she must present sufficient evidence to establish a prima facie case of discrimination under the burden-shifting methodology of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To prove a prima facie case of discrimination with respect to her claim that the Hospital failed to renew her Agreement — which, as will be explained later, is really a claim that it failed to rehire her — Dr. Rao must show that: (1) she was a member of a protected group; (2) she applied for and was qualified for the position sought; (3) the Hospital rejected her for the position; and (4) the Hospital hired or continued to seek a person whose sex or national origin was different from that of Dr. Rao's, but whose qualifications were similar or less than those of Dr. Rao. Von Zuckerstein v. Argonne National Laboratory, 984 F.2d 1467, 1474 (7th Cir.), cert. denied, 510 U.S. 959, 114 S.Ct. 419(1993).
The standard for establishing a prima facie case of retaliation is slightly different. Due to a "causal connection" requirement, "[t]he McDonnell Douglas standard that we apply in most of our retaliation cases is not really the McDonnell Douglas standard." Nordstrom, Inc. v. Dunn, 260 F.3d 778, 783 (7th Cir. 2001) (citing Bourbon v. Kmart Corp., 223 F.3d 469, 475 (7th Cir. 2000) (Posner, J., concurring)). Rather, a plaintiff must establish that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action subsequent to her participation; and (3) there was a causal link between the adverse action and the protected activity. Id. (citing Sweeney v. West, 149 F.3d 550, 555 (7th Cir. 1998). To prove a causal link, the plaintiff is required to show that the employer would not have taken the adverse action "but for" the plaintiff's engagement in the protected activity. Id. (citing McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 483 (7th Cir. 1996).
If Dr. Rao successfully establishes a prima facie case of either discrimination or retaliation, the Hospital may nevertheless escape liability by articulating a "legitimate, nondiscriminatory reason" for its action. Id. (citing Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994)). If the Hospital clears this hurdle, the burden once again shifts to Dr. Rao, who must then provide evidence that the Hospital's asserted rationale is merely pretextual. Id. (citing Essex v. United Parcel Serv., Inc., 111 F.3d 1304, 1309 (7th Cir. 1997)). Although the burden of production shifts under this method, the burden of persuasion rests at all times on the plaintiff. Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1117 (7th Cir. 2001) (quoting Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998)).
C. SECTION 1981 STANDARDS
Section 1981 provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts, . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Although § 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical. Johnson v. City of Fort Wayne, 91 F.3d 922, 940 (7th Cir. 1996), (citing Von Zuckerstein, 984 F.2d at 1472 (7th Cir.); Bailey v. Northern Indiana Pub. Serv. Co., 910 F.2d 406, 410 (7th Cir. 1990)). Accord, Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999), cert. denied, 530 U.S. 1204 (2000) (Courts employ the same legal framework in analyzing Title VII and § 1981 claims).
III. DISCUSSION A. WAS DR. RAO AN EMPLOYEE OF THE HOSPITAL?
The parties vigorously dispute whether Dr. Rao was an employee or an independent contractor of the Hospital. The distinction is important, for if she were an independent contractor her Title VII claims would fail. See Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999), cert. denied, 530 U.S. 1204 (2000). Both parties appear to agree that the controlling Seventh Circuit case on this precise issue is Alexander v. Rush North Shore Med. Ctr., 101 F.3d 487 (7th Cir. 1996), cert. denied, 522 U.S. 811 (1997). In Rush, the plaintiff had staff privileges as an anesthesiologist at Rush North Shore.
As a condition of his privileges, he was required to spend a certain amount of time per week "on call" to the hospital's emergency room. Id. at 489. When the hospital later revoked his staff privileges for violation of the on-call policy, Dr. Alexander filed a lawsuit claiming that the hospital had discriminated against him because of his religion and national origin in violation of Title VII. Id. at 489-490. The hospital asserted that Dr. Alexander had no claim under Title VII because there was no employer-employee relationship. The Seventh Circuit noted that there were five factors to consider in deciding whether an individual is an employee or an independent contractor:
(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations.
Id. at 492. Of those factors, the employer's right to control is the most important. Id. at 492-493.
Therefore, "[i]f an employer has the right to control and direct the work of an individual not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist." Id. at 493 (citations omitted). The Hospital contends that the facts in Alexander are on all fours with Dr. Rao's situation, and that because the Seventh Circuit found Dr. Alexander to be an independent contractor, this Court must do the same with respect to Dr. Rao. But the facts the Seventh Circuit relied upon in its decision are somewhat different than those presented in this matter. A comparison of Dr. Alexander's situation with Dr. Rao's would be helpful:
DR. ALEXANDER DR. RAO Dr. Similarly, Dr. Rao did not Alexander did not supply supply her own equipmentor his own equipment or assistants, but she did have assistants, but he did have significant specialized skills. significant specialized skills. Id. at 493. The hospital was not responsible Same. for paying malpractice insurance premiums, employment benefits, or income/social security taxes. Id. Dr. Alexander billed his patients It is not clear exactly how Dr. and he collected his fees directly Rao or the Hospital billed patients, from them. Id. but it appears that she collected her fees from the Hospital, not from the patients. Dr. Alexander never received any The Hospital provided Dr. Rao with compensation, paid vacation, private office space, which allowed her to office space, or any other paid perform her duties as the Medical benefits from the hospital. Id. Director and to see patients in her capacity as a psychiatrist. The Hospital issued her a Form 1099 for all payments, as opposed to a Form W-2. She received no paid benefits or paid vacation, with the exception of two weeks paid leave in or around 1992 for continuing medical education. Dr. Alexander was not required to Dr. Rao had to admit patients who met admit his patients to the hospital. certain criteria and/or were in one Id. of the Hospital's programs, but there is no evidence of whether she had to admit her own patients — to the extent she had any — to the Hospital. Dr. Alexander was free to associate The Hospital made it clear to Dr. Rao himself with other hospitals if he many times that she was not to have a wanted to do so. Id. competing practice, and that she was not to admit patients at competing hospitals. For example, Dr. Rao was specifically told that she could not have a relationship with Howard Community Hospital. Dr. Alexander had the authority to If Dr. Rao determined that a patient exercise his own independent needed therapy, she had no control over discretion concerning the care he which therapists she could send them to. delivered to his patients based upon Instead, she had to send them to the his professional judgment as to what Hospital's therapists. Once when she was in their best interests. Id. terminated the treatment of a patient because the patient was not cooperating with treatment, Dr. Rudy insisted that she accept the patient back and resume treatment. In April of 1999, when two female patients were admitted under Dr. Rao's care, Dr. Seltzer saw them on a weekend and scheduled them back to meet with him. The next month, Dr. Seltzer changed the diagnosis of one of Dr. Rao's patients, discontinued the medication Dr. Rao had prescribed, and ordered the patient to follow up with him instead of Dr. Rao. That same month, Dr. Seltzer took another patient off medication Dr. Rao had prescribed and put the patient on different medication. Thus, while many aspects of Dr. Alexander's situation were similar to Dr. Rao's, there were also some significant differences. For example, while Dr. Alexander was free to work at different hospitals, Dr. Rudy made it clear to Dr. Rao that she was not to admit patients at competing hospitals, including Howard Community Hospital in Kokomo. This certainly is evidence of the Hospital attempting to exert control over Dr. Rao. In addition, Dr. Rao had no discretion to refer a patient to the therapist of her choice; instead, she was required to send all patients to the Hospital's therapists. Once when Dr. Rao terminated the treatment of a patient because the patient was not cooperating with treatment, Dr. Rudy insisted that she accept the patient back and resume treatment. Based upon these facts, it appears that the Hospital exerted some control over Dr. Rao's practice, and the Court cannot determine as a matter of law that there was no employer-employee relationship. Accordingly, the Court will consider the merits of Dr. Rao's Title VII claims.B. DR. RAO'S TITLE VII CLAIMS FOR RETALIATION 1. The Non-Renewal of Her Agreement
Dr. Rao believes that she was retaliated against for complaining of Dr. Seltzer's sexual harassment. See Plaintiff's Response Brief at 28. In particular, she claims that the Hospital decided not to renew her Agreement because of those complaints. Actually, as will be discussed later, the real adverse employment action — if there was one — was the failure to rehire Dr. Rao as the Medical Director. Her Agreement simply expired by its own terms, and the Hospital then notified her that it was not going to renew it. The expiration of the Agreement, in and of itself, was not an adverse employment action. In any event, to establish a prima facie case of retaliation under Title VII, Dr. Rao must show the following elements: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse action. Lalvani v. Cook County, Illinois, 269 F.3d 785, 790 (7th Cir. 2001).It is undisputed that Dr. Rao filed EEOC charges, which is clearly protected activity, in February of 2000. It is also undisputed, however, that Dr. Rudy and the Hospital had determined in January of 2000 that it would not renew her Agreement, and that they communicated their decision to Dr. Rao before that had any notice or knowledge that she had filed a charge. Thus, the Hospital's decision not to renew Dr. Rao's Agreement could not have been based upon the fact that she filed those EEOC charges. See Maarouf v. Walker Manufacturing Co., 210 F.3d 750, 755 (absent knowledge on decisionmaker's part of protected activity, plaintiff lacks a causal link between the termination and the complaint of discrimination).
The only other protected activity that could support a claim that the Hospital's decision not to renew her Agreement was retaliatory was her earlier complaints of sexual discrimination. The last time Dr. Rao had complained of sexual harassment before the Hospital's decision was in September 1999 when she wrote the Attorney General's Office. The Hospital contends that the lapse of approximately four months between that protected activity and the adverse employment action demonstrates that there was no causal connection.
"Generally, a plaintiff may establish such a link through evidence that the discharge took place on the heels of protected activity." Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 399 (7th Cir. 1999) (citations omitted). A substantial time lapse between the protected activity and the adverse employment action, however, "is counter-evidence of any causal connection." Id. (citing Johnson v. Univ. of Wis.-Eau Claire, 70 F.3d 469, 480 (7th Cir. 1995). Given the delay between Dr. Rao's most recent complaint and the Hospital's decision not to renew her Agreement, the Court finds that Dr. Rao has failed to establish a causal link between her protected activity and the Hospital's decision not to renew her Agreement. Id. (finding lapse of four months to be too long to support causal link). Accord, Equal Employment Opportunity Commission v. Nicosia, 253 F.3d 943, 952-953 (7th Cir. 2001) (temporal proximity of plaintiff's termination with his filing of an EEOC charge (some six weeks) was insufficient to establish retaliation); Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918-919 (7th Cir. 2000) (interval of three months too long to support an inference of retaliation). As a result, the Hospital is entitled to summary judgment on Dr. Rao's claim that it failed to renew her Agreement in retaliation for her complaints of harassment.
2. The "Patient Stealing" by Dr. Seltzer
In her first EEOC charge, Dr. Rao alleged that Dr. Seltzer began retaliating against her by telling her patients that she was not giving them proper care, and by being very critical of her in front of fellow members of the professional staff. See Plaintiff's Exs. 6-7. Dr. Rao claims that Dr. Seltzer was actually "stealing" her patients, and that this was sufficient to constitute an adverse employment action under Title VII. As the parties recognize, it is well settled that Title VII does not cover "everything that makes an employee unhappy." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). A material adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).
Such a material change "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Id.
The Court assumes that if Dr. Seltzer were actually "stealing" Dr. Rao's patients, and that this resulted in a loss of income to Dr. Rao, such conduct could amount to an adverse employment action. The record before the Court, however, does not support such an allegation. Dr. Rao alleges in conclusory fashion that Dr. Seltzer's authority over the therapists resulted in some of her patients being switched over to his care. There is no evidence of when this happened, how many times it happened, or whether it adversely affected Dr. Rao's income. In addition, while Dr. Rao asserts that any patient stealing by Dr. Seltzer could result in a material loss of benefits to her, see Stmt. of Facts ¶ 148, there is no evidence that she actually suffered such a loss. Without such evidence, Dr. Rao's allegation of "patient stealing" is insufficient to amount to an adverse employment action under Title VII. The Hospital is entitled to summary judgment on that claim, as well.
Although it did not have to address the issue, the Court notes that even if this "patient stealing" had amounted to an adverse employment action, it is not clear that there was any causal connection between Dr. Rao's complaints about Dr. Seltzer and his alleged retaliatory acts. Indeed, Dr. Rao herself believes that the Hospital administrators — not Dr. Seltzer — instructed the therapists to switch patients over to Dr. Seltzer's care without consulting Dr. Rao. Stmt. of Facts ¶ 141.
C. DR. RAO'S TITLE VII CLAIMS FOR SEX AND NATIONAL ORIGIN DISCRIMINATION
As discussed earlier, to establish a prima facie case of sex or national origin discrimination under Title VII, Dr. Rao must establish the following elements: (1) she was a member of a protected group; (2) she applied for and was qualified for the position sought; (3) the Hospital rejected her for the position; and (4) the Hospital hired or continued to seek a person whose sex or national origin was different from that of Dr. Rao's, but whose qualifications were similar or less than those of Dr. Rao. Von Zuckerstein, 984 F.2d at 1474 (7th Cir. 1993). Dr. Rao argues that this is not the proper analytical framework for her claim because "failure to renew an individual's contract is a far cry from failing to hire an individual." Plaintiff's Response Brief at 24. The Court does not agree. Dr. Rao had an Agreement with the Hospital that ran for a period of two years. She does not allege that the Hospital somehow prematurely terminated that relationship. In addition, the Hospital was under no obligation to renew the Agreement, and she did continue to receive the compensation and benefits due her under her Agreement until it expired. Accordingly, it seems that what Dr. Rao is really claiming is that the Hospital refused to rehire her because of her sex and national origin. As a result, the prima facie elements of a failure to rehire case are appropriate. See Turner v. Chicago S.D.A. Academy, 1998 WL 808993, *4 (N.D.Ill. November 17, 1998) (noting that a decision not to renew a contract is analogous to a failure to hire ADEA claim), (citing Degen v. American Association of Oral and Maxillofacial Surgeons, 1994 WL 13754, *1 (N.D.Ill. January 14, 1994).In this case, the parties have focused primarily on whether Dr. Rao was meeting the legitimate expectations of her employer and whether Dr. Seltzer was similarly situated to her. These elements are part of a plaintiff's prima facie case in a claim of discriminatory termination, not for failure to rehire. Accordingly, to allow the parties to fully address Dr. Rao's claims in the failure to hire framework, the Court will DENY the Hospital's motion for summary judgment on her Title VII claims for sex and national origin discrimination with respect to the Hospital's failure to renew her Agreement. The Hospital shall have 30 days from the date of this Order to serve Dr. Rao with a renewed motion for summary judgment on these claims.
D. DR. RAO'S CLAIM FOR SEXUAL HARASSMENT
Dr. Rao has also asserted a claim for sexual harassment, claiming that Dr. Seltzer harassed her to a point of creating a hostile work environment. It is undisputed that Dr. Seltzer did not have the authority to give Dr. Rao a raise or lower her compensation, to promote or demote her, to terminate her Agreement, to send her home early, or to change her employment status regarding hours served. Stmt. of Facts ¶ 77.
As a result, it appears that Dr. Seltzer was a co-worker, and not a supervisor of Dr. Rao. In that case, the Hospital would only be liable for his sexual harassment of her — assuming the alleged harassment rose to the level of a hostile work environment — if it "knew or should have known about [Dr. Seltzer]'s acts of harassment and failed to take appropriate remedial action." Berry v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001) (citing McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480 (7th Cir. 1996) (citation and internal quotation omitted)). Here, Dr. Rao concedes that after Dr. Rudy talked to Dr. Seltzer about his inappropriate conduct toward her, the harassment ceased. See Plaintiff's Response Brief at 34.
With no other evidence that the Hospital's efforts to rectify Dr. Seltzer's harassment after receiving Dr. Rao's complaints were not reasonably likely to end the harassment, Dr. Rao's sexual harassment claim fails. As a result, the Court GRANTS the Hospital's motion for summary judgment on Dr. Rao's sexual harassment claim under Title VII.
E. DR. RAO'S CLAIMS FOR NATIONAL ORIGIN DISCRIMINATION UNDER § 1981
The Hospital has also moved for summary judgment on Dr. Rao's claims of national origin discrimination under § 1981. According to the Hospital, there is no evidence that it discriminated or retaliated against Dr. Rao because of her national origin. Dr. Rao did not respond to the Hospital's argument with respect to her retaliation claim, so she has abandoned that claim. See Bombard, 92 F.3d at 562, n. 2 (plaintiff abandoned his FMLA claim after failing to respond to the FMLA arguments in defendant's motion for summary judgment). With respect to her assertion that the Hospital discriminated against her because of her national origin, Indian, she does not state a claim under § 1981. See Nowak v. Palatine Community Consolidated School Dist. No. 15, 2001 WL 619521, *4 (N.D.Ill. May 29, 2001), relying upon Von Zuckerstein, 984 F.2d at 1472 ("claims founded on [foreign born] status are not cognizable under § 1981, which is designed to remedy discrimination based on race or ethnicity."). As a result, the Court GRANTS the Hospital's motion for summary judgment on Dr. Rao's claims for national origin discrimination under § 1981.
IV. CONCLUSION
In sum, the Court finds that there is a factual dispute with respect to whether Dr. Rao was an employee or an independent contractor of the Hospital. As to her specific federal claims, the Court has ruled as follows:
(1) The Court GRANTS the Hospital's motion for summary judgment on Dr. Rao's retaliation claims under Title VII;
(2) The Court GRANTS the Hospital's motion for summary judgment on Dr. Rao's claim for sexual harassment under Title VII;
(3) The Court GRANTS the Hospital's motion for summary judgment on Dr. Rao's claims for national origin discrimination under § 1981; and (4) The Court DENIES the Hospital's motion for summary judgment on Dr. Rao's claim for sex and national origin discrimination under Title VII because the parties have not had an adequate opportunity to address those claims under the analytical framework of a failure to rehire claim. The Hospital shall have 30 days from the date of this Order within which to serve Dr. Rao with a renewed motion for summary judgment.