Katherine Liu v. Cook County, Illinois , 817 F.3d 307 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1775
KATHERINE LIU,
Plaintiff-Appellant,
v.
COOK COUNTY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 6544 — George M. Marovich, Judge.
____________________
ARGUED SEPTEMBER 9, 2015 — DECIDED MARCH 15, 2016
____________________
Before POSNER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Dr. Katherine Liu worked as a
general surgeon at Cook County’s Stroger Hospital for more
than two decades before she lost her surgical privileges and
was denied reappointment in 2008. Cook County and the
three individual defendants, Dr. Richard Keen, Dr. James
Madura, and the estate of Dr. Phillip Donahue, contend that
those actions were based on Dr. Liu’s repeated refusal to op-
erate on patients with appendicitis. Dr. Liu claims that their
2 No. 14-1775
reasoning masked unlawful discrimination and retaliation.
She brought a number of claims against defendants, includ-
ing alleged violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2(a) & 2000e-3(a), and 42 U.S.C.
§ 1981.
The district court granted defendants’ motion for sum-
mary judgment, finding that no reasonable trier of fact could
conclude their reasons were pretextual. We agree. Dr. Liu
has presented only the sparsest evidence of animus based on
her race, sex, and national origin, none of it linked to the de-
cisions at issue. She has also failed to present evidence creat-
ing a genuine dispute of fact as to whether the defendants’
stated reasons for disciplining her were honest. We therefore
affirm the decision of the district court.
I. Background
A. Facts for Summary Judgment
In assessing whether the defendants were entitled to
summary judgment, we examine the record in the light most
favorable to Dr. Liu as the non-moving party, resolve all evi-
dentiary conflicts in her favor, and grant her all reasonable
inferences that the record permits. Coleman v. Donahoe, 667
F.3d 835, 842 (7th Cir. 2012).
1. The Parties
Dr. Katherine Liu is an Asian woman of Chinese descent.
She began working at Stroger Hospital in 1984. With the ex-
ception of 1985, when she received a “good” performance
appraisal from the Department of Surgery, she consistently
received ratings of “excellent” and “superior” up until an-
nual appraisals were discontinued in 1999.
No. 14-1775 3
As for the individual defendants, Dr. Keen was Chairman
of the Department of Surgery. Dr. Madura was Chair of the
Surgical Oversight Committee, or SOC. Dr. Donahue was
Chief of the Division of General Surgery. All three had man-
agerial responsibilities related to patient care at Stroger.
In 2001, a patient at Stroger died from a ruptured appen-
dix. That tragedy prompted Dr. Keen to write to the Hospital
Surgical Oversight Committee advising that as a corrective
action the Department of Surgery would admit patients with
abdominal pain to surgical service so the hospital could rec-
ognize problems requiring surgery and operate on them ear-
ly. This pro-surgery approach set the stage for the eventual
conflict between the defendants and Dr. Liu.
2. Early Disputes
Dr. Liu says that the discrimination began in 2003, when
Drs. Keen and Donahue began sending a disproportionate
number of her cases to review committees as compared to
her white male colleagues. Her declaration does not provide
enough detail about her colleagues to support the claim of
disproportionality, but she says that throughout 2003 and
2004, she met with Dr. Bradley Langer, the interim Medical
Director at the time, to discuss the disparities she perceived.
She has offered no direct evidence that Drs. Keen and Madu-
ra harbored animus toward her based on race, sex, or na-
tional origin. As for Dr. Donahue, Dr. Liu points to a handful
of inappropriate remarks he made, including: (1) in 2000, he
called her a “good girl” until she asked him to stop; (2) when
she requested a raise, he asked why she needed one because
her husband worked; and (3) he asked Dr. Susan Gilkey out-
side of Dr. Liu’s presence why all female doctors “have to be
bitches.”
4 No. 14-1775
3. The Appendicitis Cases
In December 2004, the SOC discussed a case in which Dr.
Liu treated a nineteen-year-old patient with appendicitis
non-operatively and the patient suffered a heart attack. The
minutes indicated that “Timing of operating was delayed”
and that Dr. Donahue would “counsel Dr. Liu regarding
treatment of appendicitis.” The minutes also stated, howev-
er, that “Dr. Liu’s care was deemed adequate.”
This was the first in a series of clashes between Dr. Liu
and the Stroger Hospital administration regarding her pro-
fessional judgment as it pertained to the non-operative
treatment of appendicitis.1 On April 7, 2005, the SOC met
and discussed I.G., a patient who presented with appendici-
tis and whom Dr. Liu treated non-operatively. The minutes
stated in part:
Dr. Donahue has counseled Dr. Liu (who is the
Attending surgeon) about her method of treat-
ing appendicitis by antibiotics only without in-
itial surgical intervention as being non-
conventional. If Dr. Liu is going to treat acute
appendicitis w/ antibiotics, then it has been re-
quested that it be done in a prospective man-
ner under research protocol with IRB approval.
1 Dr. Liu also received some criticism for non-appendicitis cases over the
next few years, including a reprimand for delaying an operation in Oc-
tober 2006, an SOC review of a patient with a “subclinical dehiscence,”
or partial separation of a previously closed incision, in the same month,
an order restricting her ability to handle esophageal cases in February
2007, and a reprimand in August 2007 for a gastroesophagectomy she
performed. She says all these criticisms were unjustified. The non-
appendicitis cases do not play a role in our decision.
No. 14-1775 5
There was no further discussion necessary, because the care
was deemed appropriate in this case.
In December 2006, the SOC discussed another of Dr. Liu’s
appendicitis cases. The minutes contained little detail about
the case itself, but the consensus was “that the management
process was not adequate; deficient care.” Dr. Liu was sup-
posed to be invited to the next meeting to offer her own
views on the case, but she says that never occurred.
In May 2007, Dr. Madura wrote to Dr. Donahue after at-
tending a Mortality and Morbidity Conference. The confer-
ence featured a case involving a 25-year-old male patient,
J.E., who presented with twelve hours of right lower quad-
rant pain, elevated white blood cell count, and a CT scan
clearly showing acute appendicitis with a fecalith (a hard-
ened mass of feces). Dr. Liu treated him with antibiotics and
did not perform surgery. Seven to ten days later, the patient
returned with an abscess and spent several days in the hos-
pital. According to Dr. Madura, the audience unanimously
agreed that J.E. should have received an operation when first
admitted. He wrote that he was concerned that Dr. Liu was
deviating from the standard of care for research purposes
and that he was referring the J.E. case to the SOC.
Before the SOC reviewed the case, Dr. Keen received a
letter from resident physician Dr. Niki Christopoulos ex-
pressing similar concerns about the management of J.E.’s
case. Dr. Christopoulos wrote that J.E. had “begged” for an
operation during his first admission, but that Dr. Liu had de-
cided to manage his case non-operatively. Dr. Christopoulos
believed Dr. Liu had “grossly mismanaged” the case.
6 No. 14-1775
The SOC reviewed the J.E. case twice, on June 7 and July
19, 2007. It recorded the following list of issues in its minutes
for both meetings:
1. No protocol for antibiotic management
2. Patient is not advised of surgical vs. an-
tibiotic management.
3. Misinterpretation of data
4. Inconsistency with resident & Attending
reports.
5. Failure to treat non-improving condi-
tion.
The SOC decided to send a letter to the Division Chief re-
garding “Dr. Liu’s ongoing mismanagement of appendicitis
calling for corrective action/disciplinary action.” It also con-
sidered recommending that Dr. Liu be sent to Peer Review,
although it put the vote on hold until Dr. Liu could present
her side of the case.
On September 6, 2007, the SOC met to discuss several of
Dr. Liu’s cases. The SOC had previously discussed two of
them, I.G. and J.E. A third appendicitis case was erroneously
attributed to Dr. Liu but actually belonged to a different
physician. A fourth was unrelated to non-operative appendi-
citis treatment but instead involved Dr. Liu’s failure to diag-
nose a patient with cancer. The SOC agreed to generate a let-
ter to Drs. Donahue and Keen expressing its view that Dr.
Liu’s care and management of appendicitis were deficient
and recommending a reprimand. Dr. Madura read the letter
addressed to Dr. Donahue at an SOC meeting on October 4,
2007.
No. 14-1775 7
On October 16, 2007, Dr. Donahue wrote Dr. Liu regard-
ing her approach to appendicitis. He proposed that in cases
of acute appendicitis, she simply perform an appendectomy,
and, if she believed operation was inappropriate, she consult
with a colleague. Dr. Liu responded via letter dated Novem-
ber 8, 2007. She defended non-operative appendicitis treat-
ment as medically sound and wrote that she did not recall
Dr. Donahue requesting that she operate on all cases of sus-
pected acute appendicitis. She further wrote that she would
have proceeded to surgery immediately if she had previous-
ly understood his position. She professed to be willing to fol-
low Dr. Donahue’s request that “all cases of suspected un-
complicated acute appendicitis in our institution receive
surgery,” at least pending the development of a formal pro-
tocol for non-operative management.
Four days later, Dr. Madura wrote a letter to Dr. Donahue
about three additional cases purportedly involving Dr. Liu’s
non-operative treatment of appendicitis. (Dr. Liu contends
just one of the patients actually had appendicitis.) So Dr.
Donahue wrote Dr. Liu again on November 16, citing wasted
resources and increased morbidity risk when appendicitis
was treated without surgery. He instructed her to develop a
protocol for non-operative management of appendicitis if
she believed it appropriate. He also warned her that failure
to comply with division policies would lead to censure. At
Dr. Keen’s request, Dr. Madura conducted a departmental
quality control project comparing operative and non-
operative appendicitis treatment in nearly 1,200 past appen-
dicitis cases at Stroger. He concluded that acute appendicitis
required urgent surgery. Dr. Liu was notified of this recom-
mendation.
8 No. 14-1775
Nevertheless, on January 14, 2008, Dr. Madura discov-
ered the case of F.G., another appendicitis patient whom Dr.
Liu treated with antibiotics. He wrote to Drs. Donahue and
Keen that he believed F.G.’s care was “inappropriately man-
aged” and concluded: “It is only a matter of time before a
tragic outcome results from this problem.” Dr. Donahue
wrote to Dr. Liu on February 22:
Following an earlier note in which I asked that
you desist from your practice of experimental
treatment of acute appendicitis[,] I was disap-
pointed when your case of a similar nature was
presented at morbidity conference, since the
young patient had additional CAT scans and
unnecessary hospital days. Also, the young
man has his diseased appendix in situ, and is
still at risk of complications in the future.
In my note of October 16th, I directed you to
consult with another surgeon if you felt com-
pelled to consider antibiotic treatment in cases
of acute appendicitis. You did not do so [in]
this case, and possibly others. It is inappropri-
ate to not follow directions from a Division
Chief, and such deficiencies will have to be
considered when reappointments are pending.
Please comply with Division policies in the fu-
ture.
The SOC likewise disagreed with Dr. Liu’s treatment of F.G.
On March 6, 2008, the SOC concluded there had been “inap-
propriate management” and agreed to send a letter to Dr.
No. 14-1775 9
Liu “stating that the committee disagrees with her continued
management of appendicitis.”
4. Dr. Liu Continues Non-Operative Treatment
Dr. Liu apparently did not change her approach to ap-
pendicitis cases. On April 10, Dr. Donahue wrote her another
letter reading in part:
Following two earlier cases, I asked that you
desist from your unorthodox treatment of
acute appendicitis. I was disappointed to read
your note that a patient with acute appendicitis
was being treated with antibiotics for invalid
reasons. When he failed to improve several
days later, his appendix was removed. This pa-
tient was placed at unnecessary risk because of
your approach, which I categorize as “poor
judgment” as well as failure to consult with
another surgeon for your unorthodoxy. As the
agenda showed in the Division meeting this
morning, judgment as well as conformity to
Division policies will be considered in the re-
appointment process.
On May 2, Dr. Liu responded. She said she “agreed to
perform appendectomy for all cases of noncomplicated ap-
pendicitis” but contended the case had involved complicated
appendicitis, for which antibiotic treatment is “accepted
management.” Three days later, Dr. Madura also wrote to
Dr. Liu, informing her that her ongoing mismanagement of
appendicitis cases and failure to comply with Dr. Donahue’s
proposal would be presented to the Hospital Oversight
Committee. He wrote that what concerned the Committee
10 No. 14-1775
most was Dr. Liu’s “insistence that you should not have to be
subject to the plan of action outlined by Dr. Donahue be-
cause you too are a senior attending.”
The conflict soon came to a head. On July 19, a young pa-
tient of Dr. Liu’s named Sandoval ended up in the surgical
intensive care unit with serious complications. The Hospital
Oversight Committee reviewed ICU admissions daily for
quality assurance purposes. That same day, a member of
Quality Assurance contacted Dr. Keen to tell him about
Sandoval. Two committees met in special session to address
the case: the Hospital Oversight Committee on July 21, and
the SOC on July 24. The SOC determined that Sandoval’s
ruptured appendicitis was apparent in a CT scan, but Dr. Liu
did not operate until the next morning. Dr. Madura wrote to
Drs. Keen and Donahue on July 24 informing them of the
SOC’s unanimous conclusion that Dr. Liu’s treatment of ap-
pendicitis fell below the standard of care and was jeopardiz-
ing patients’ lives.
Around this same time, Dr. Liu was taking action to
combat what she felt was unfair disparagement of her prac-
tices. On July 18, she received a memo written by Dr. Do-
nahue months before, which opened: “Previously I have
asked that you operate on all cases of suspected acute ap-
pendicitis, since that is the way that American surgeons treat
adult patients with acute appendicitis.” The memo repeated
Dr. Donahue’s earlier proposal that Dr. Liu consult with a
colleague if she felt operative treatment was inappropriate in
a particular case of appendicitis. On July 22, Dr. Liu sent a
memo defending her performance to Dr. Donahue, copying
Dr. Keen and the new interim Medical Director, Dr. Maurice
No. 14-1775 11
Lemon. She also met with Dr. Lemon to complain of discrim-
ination on July 25.
5. Suspension, Review, and Termination
Soon after, Dr. Keen took decisive action of his own. On
August 4, 2008, he suspended Dr. Liu’s surgical privileges
and limited her cases to those of “low complexity.” He noti-
fied Dr. Liu, Dr. Janice Benson, President of the Medical
Staff, and Dr. Jay Mayefsky, Chair of the Peer Review Com-
mittee. Dr. Liu was on leave at the time. Dr. Keen’s letter was
re-sent to her late in August.
Two weeks after she was suspended, Dr. Liu met with
Drs. Langer and Lemon. They asked her to resign and forgo
peer review, but she refused. On August 22, they proposed
that in exchange for restoration of her privileges, Dr. Liu
agree to a departmental policy regarding acute appendicitis
treatment and acknowledge that she could have operated on
Sandoval earlier. Dr. Liu agreed, but on August 26, Dr. Lang-
er indicated that Dr. Keen and the SOC wanted “something a
bit more all-encompassing than that.” He asked her to
acknowledge that she could have operated earlier in several
other cases. Dr. Liu did not reply. On August 29, Dr. Langer
indicated that he could not restore Dr. Liu’s privileges.
Stroger Hospital’s bylaws require the standing Peer Re-
view Committee to review summary suspensions. Over the
next few weeks, members interviewed Drs. Keen, Liu, and
others. The Committee also reviewed medical records and
reports from the Hospital Oversight Committee and Drs. Liu
and Keen, and received correspondence from other physi-
cians. Drs. Keen, Madura, and Donahue did not control the
Peer Review Committee and in fact were not on the Commit-
12 No. 14-1775
tee at all. Dr. Liu suggests that the proceedings were none-
theless unfair because she had insufficient notice of the con-
duct she was to rebut and was forced to review cases that
were several years old.
Though the timing is unclear, during the review process,
another appendicitis case involving Dr. Liu came to Dr.
Keen’s attention. Sometime in October 2007, Dr. Liu had
been an attending physician for a patient named Diane
Bucki. Dr. Liu was part of the decision to treat Bucki’s ap-
pendicitis with antibiotics. Bucki’s appendix eventually per-
forated, and she received emergency surgery at a different
hospital. She sued the County, Dr. Liu, and a former intern
for malpractice. The case eventually settled for $190,000,
though Dr. Liu was dismissed from the lawsuit before the
execution of the settlement. The County told Dr. Keen of the
case around the time of the settlement. He added that case to
the mix.
On September 25, the Committee issued its unanimous
report. As “Complaints,” the report listed Dr. Liu’s non-
operative management of appendicitis despite repeated in-
structions to the contrary and her “large number of compli-
cations on more complex cases,” although the Committee
also “felt that she is bright and a competent surgeon.” The
Committee found:
1. The process of oversight in the Department
of Surgery is not without the potential for
bias, and this may lead a department mem-
ber to feel that she/he is the subject of unfair
scrutiny. This can cause animosity, and elic-
it stubbornness and reluctance to change.
No. 14-1775 13
2. That being said, there is sufficient evidence
to support the complaints against Dr. Liu.
She is not managing appendicitis as per the
accepted standard of care at Stroger Hospi-
tal, and some of her patients have therefore
experienced complications. She has refused
to follow the directives of her department
and division chiefs. She has exhibited poor
judgment in the management of several
other types of surgical cases. These have led
to [a] number of complications.
3. The Committee is especially concerned
with Dr. Liu’s lack of insight into her prob-
lems.
The Committee recommended that the suspension continue
until Dr. Liu completed counseling, “with the goals of gain-
ing insight into her problems, accepting responsibility for
her actions, and learning how to change in response to feed-
back.” The Committee recommended restoring her privileg-
es once she completed counseling.
The Executive Medical Staff, or EMS, is composed of
about 40 individuals and is responsible for independently
reviewing peer review reports. No single person controls the
EMS. Pursuant to the bylaws, the EMS met and discussed
Dr. Liu’s summary suspension three times in October.
Though the EMS voted against terminating Dr. Liu on Octo-
ber 14, ultimately, on October 22, all the EMS members pre-
sent (save one who abstained) voted to keep the suspension
in full force and to reduce Dr. Liu’s clinical privileges to a
limited number of general surgery cases.
14 No. 14-1775
At Stroger, every physician must reapply and be reap-
pointed to the staff every two years. In Dr. Liu’s case, the
Credentials Committee recommended denying reappoint-
ment. Drs. Madura and Donahue were recused from the
Committee but spoke about Dr. Liu’s clinical deficiencies. Dr.
Keen was never part of the Committee; he, too, spoke about
Dr. Liu. Dr. Mayefsky summarized the Peer Review Commit-
tee’s findings on the summary suspension. During her own
appearance before the Credentials Committee, Dr. Liu de-
fended her conduct by stating that she was “entitled to treat
patients in the way she sees best.”
The EMS adopted the Credentials Committee’s recom-
mendation against reappointment by a vote of eighteen to
one, with two abstentions. Dr. Liu appealed both decisions.
A three-person committee selected by medical staff president
Dr. Benson conducted an evidentiary hearing in the fall of
2009. A successful appeal required the physician to show by
clear and convincing evidence that the EMS decision was ar-
bitrary, capricious, or unreasonable—a task presumably
made difficult by the fact that the EMS did not keep records
of its decision-making process. After nine sessions, including
fifteen witnesses and dozens of exhibits, the leader of the
committee, Dr. David Levine, drafted unanimous recom-
mendations finding that Dr. Liu had not proven her case and
upholding both the summary suspension and the denial of
reappointment. Drs. Keen and Madura had no control over
the hearing committee. By the time the hearing committee
issued its recommendation, Dr. Donahue had passed away.
Dr. Liu nevertheless attacks this process as unfair, primarily
because the number of cases asserted against her increased
throughout.
No. 14-1775 15
This was not quite the end of the process Dr. Liu re-
ceived, though. Pursuant to the bylaws, on January 12, 2010,
EMS adopted the hearing committee’s recommendations by
a vote of eighteen to seven, with three abstentions. The Joint
Conference Committee upheld that determination by a vote
of six to three in March. The Health System Board of Direc-
tors upheld the determination again in April.
Finally, also in January 2010, Dr. Liu was terminated for
her behavior during the suspension and reappointment pro-
ceedings. She accessed patient records to try to prove that
her performance was better than that of her colleagues. Dr.
Keen brought disciplinary charges against her. Following a
hearing before an independent hearing officer, she was dis-
charged, ostensibly for violating the Health Insurance Porta-
bility and Accountability Act, or HIPAA, the Cook County
Health and Hospital System Privacy Policy, and Stroger’s
own HIPAA policy.
B. Procedural History
Dr. Liu brought suit alleging race, sex, and national
origin discrimination, as well as retaliation and harassment.
She asserted a number of other claims as well, but those are
not at issue in this appeal. Defendants moved for summary
judgment, and the district court granted that motion in its
entirety. With respect to the Title VII discrimination and re-
taliation claims, the court assumed without deciding that Dr.
Liu could establish a prima facie case of discrimination. It
then identified the defendants’ stated non-discriminatory
reason for disciplining Dr. Liu—the failure to treat appendi-
citis with surgery—and held that Dr. Liu had failed to raise a
genuine dispute of fact as to whether that reason was a pre-
text for discrimination based on race, sex, or national origin.
16 No. 14-1775
The court also rejected the harassment claims because the
letters and reprimands Dr. Liu received were neither objec-
tively offensive nor related to her sex, race, or national
origin. Finally, on her retaliation claims, the court held that
Dr. Liu had produced insufficient evidence to show causa-
tion under the direct method and that she could not prevail
under the indirect method due to a lack of evidence of pre-
text. Dr. Liu appealed with respect to these claims. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
II. Analysis
We review de novo the district court’s decision to grant
summary judgment. Ripberger v. Corizon, Inc., 773 F.3d 871,
876 (7th Cir. 2014). In discrimination and retaliation cases
under Title VII, a plaintiff may defeat summary judgment
via either the direct or indirect method of proof, id. (discrim-
ination); Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th
Cir. 2012) (retaliation), though it is a mistake to adhere too
rigidly to those methods. The proper question under either
method is simply whether a reasonable trier of fact could in-
fer retaliation or discrimination. See Castro v. DeVry Universi-
ty, Inc., 786 F.3d 559, 564 (7th Cir. 2015), citing, among other
cases, Bass v. Joliet Public School Dist. No. 86, 746 F.3d 835, 840
(7th Cir. 2014), and Coleman v. Donahoe, 667 F.3d 835, 863 (7th
Cir. 2012) (Wood, J., concurring) (arguing that “the time has
come to collapse all these tests into one”). The substantive
standards and methods of proof that apply to Title VII race
discrimination and retaliation claims also apply to Dr. Liu’s
claims under 42 U.S.C. § 1981. Smith v. Bray, 681 F.3d 888, 896
(7th Cir. 2012). We follow Dr. Liu’s lead in considering her
claims for discrimination and retaliation together before
turning to her hostile work environment claim.
No. 14-1775 17
A. Discrimination and Retaliation
The district court analyzed Dr. Liu’s national origin and
sex discrimination claims under both the direct and indirect
methods of proof, her race-based discrimination claims un-
der the indirect method only, and her retaliation claims un-
der the direct and indirect methods. On appeal, Dr. Liu ar-
gues only that her claims should have survived summary
judgment under the indirect method of proof. Under the in-
direct method, a plaintiff must establish a prima facie case of
discrimination or retaliation, after which the burden shifts to
the employer to articulate a non-discriminatory reason for its
action. Then, the burden shifts back to the employee to show
that reason is pretextual. Collins v. American Red Cross, 715
F.3d 994, 999–1000 (7th Cir. 2013) (discrimination); Harper,
687 F.3d at 309 (retaliation). Of course, “when all is said and
done, the fundamental question at the summary judgment
stage is simply whether a reasonable jury could find prohib-
ited discrimination.” Bass, 746 F.3d at 840.
Like the district court and the parties, we focus our anal-
ysis on the question of pretext. The burden is on the plaintiff
to offer evidence that her employer’s stated non-
discriminatory reason was a lie intended to mask unlawful
discrimination. E.g., Harden v. Marion County Sheriff’s Dep’t,
799 F.3d 857, 864 (7th Cir. 2015); Widmar v. Sun Chemical
Corp., 772 F.3d 457, 465 (7th Cir. 2014); Naik v. Boehringer
Ingelheim Pharmaceuticals, Inc., 627 F.3d 596, 601 (7th Cir.
2010). “The question is not whether the employer’s stated
reason was inaccurate or unfair, but whether the employer
honestly believed the reason it has offered” for the adverse
action. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th
Cir. 2011).
18 No. 14-1775
Even if an employer’s decision is mistaken, there is no
pretext so long as the decision-maker honestly believed the
non-discriminatory reason. Hague v. Thompson Distribution
Co., 436 F.3d 816, 823 (7th Cir. 2006), quoting Ballance v. City
of Springfield, 424 F.3d 614, 617 (7th Cir. 2005); see also Yindee
v. CCH Inc., 458 F.3d 599, 602 (7th Cir. 2006) (“It is not
enough to demonstrate that the employer was mistaken, in-
considerate, short-fused, or otherwise benighted; none of
those possibilities violates federal law. Poor personnel man-
agement receives its comeuppance in the market rather than
the courts.”) (citations omitted). A plaintiff may show a gen-
uine dispute of fact on pretext by identifying “such weak-
nesses, implausibilities, inconsistencies, or contradictions” in
a stated reason that a reasonable trier of fact could find it
“unworthy of credence.” Harper, 687 F.3d at 311, quoting
Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir.
2007).
To justify the actions taken against Dr. Liu, defendants re-
ly on her failure to operate immediately in appendicitis cas-
es. Over several years, Dr. Liu received frequent instructions
to operate when patients presented with appendicitis. The
undisputed facts show that she repeatedly refused to do so.
After several incidents in which patients suffered “complica-
tions,” a euphemism here for grave dangers to life and
health, her privileges were suspended and she was denied
reappointment to the hospital staff. These determinations
were affirmed no fewer than six times by different medical
committees, passing through the Peer Review Commit-
tee/Credentials Committee, the EMS, the three-person hear-
ing committee, the EMS a second time, the Joint Conference
Committee, and the Health System Board of Directors.
No. 14-1775 19
On this record, we cannot agree with Dr. Liu that the de-
fendants’ stated non-discriminatory reason for the actions
they took was “highly questionable.” Dr. Liu points to noth-
ing in the record supporting her argument that defendants
“created” a false “trail of alleged wrongdoing.” In fact, she
continues to defend on the merits her many decisions not to
operate on patients with appendicitis. And her complaints
about the fairness of the process she received and defend-
ants’ tendency to introduce additional evidence do not show
that defendants secretly “directed” all the stages of inde-
pendent review or served as “the prosecutors, the witnesses,
and the jury.” While Drs. Keen, Madura, and Donahue were
certainly involved in presenting the case against her, she has
presented no evidence that they controlled these bodies’ de-
cision-making.
Dr. Liu argues that defendants were medically off-base in
condemning the non-operative approach to appendicitis. She
asserts that the use of antibiotics to treat appendicitis has
support in the medical literature and that it was appropriate
for the patients she treated that way. For purposes of sum-
mary judgment, we must allow for the possibility that de-
fendants were unduly narrow-minded on the medical issues.
But this would not make their reasoning any less believable,
particularly given the complications that some patients like
J.E., Diane Bucki, and Sandoval suffered when Dr. Liu de-
layed operating or chose not to operate at all.
Dr. Liu also points to purported weaknesses in defend-
ants’ reasoning, which, as we have said, can permit an infer-
ence of pretext. Harper, 687 F.3d at 311. She first attacks the
punishment imposed upon her as inconsistent with her sup-
posed transgressions. If her failure to perform surgery truly
20 No. 14-1775
drove defendants’ decisions, she argues, the proper course of
action would be to encourage surgery by instituting a proc-
torship or ordering her to operate on appendicitis patients.
But the record demonstrates that defendants attempted to do
exactly that for months. They directed Dr. Liu to operate on
appendicitis patients or to consult with a colleague if she be-
lieved operating was inappropriate in a given case. She re-
peatedly refused to comply. The fact that defendants eventu-
ally decided to restrict Dr. Liu’s privileges altogether does
not, in light of her history, undermine the credibility of de-
fendants’ concerns over her repeated refusal to operate on
appendicitis patients as directed. The undisputed facts show
her history of non-compliance with earlier efforts to encour-
age her to operate, supported by her statement to the Cre-
dentials Committee that she was “entitled” to treat patients
as she saw fit.
Dr. Liu also argues that a trier of fact could infer pretext
because she was punished for treating appendicitis non-
operatively when defendants themselves admit that other
general surgeons also use non-operative treatment at least
two to three percent of the time without repercussions. But
Dr. Liu has presented no evidence that any other surgeon (1)
managed appendicitis non-operatively after explicit instruc-
tions not to do so; or (2) caused, or appeared to cause, the
complications that Dr. Liu’s treatments appeared to cause.
Put another way, Dr. Liu oversimplifies the conduct for
which she was punished. After she refused to comply with
repeated instructions to operate on appendicitis patients and
her patients experienced several near-tragedies, Stroger ter-
minated her privileges and denied her reappointment. She
has pointed to no other surgeon who engaged in a compar-
able course of conduct.
No. 14-1775 21
Next, Dr. Liu argues that the other reprimands she re-
ceived show pretext because those clashes were not related
to her treatment of appendicitis. But Dr. Liu does not explain
how these earlier admonitions, even if we presume they
were unfair, call into question the legitimacy of defendants’
concern about her repeated non-operative treatment of ap-
pendicitis. To the extent her theory is that these non-
appendicitis reprimands were part of a broad conspiracy to
discriminate, the theory is not a reasonable inference on this
record. The evidence of unlawful animus is minimal, and
defendants’ non-discriminatory justification is well-
supported. Without supporting evidence, Dr. Liu’s attempt
to characterize the appendicitis dispute as one more volley
in a discriminatory “assault on her professional competence”
is only speculation. See Matthews v. Waukesha County, 759
F.3d 821, 824 (7th Cir. 2014) (non-moving party is not entitled
to the benefit of “inferences that are supported only by spec-
ulation or conjecture”).
Finally, Dr. Liu argues that the offer of what she calls the
“backroom deal,” in which she was offered the chance to
avoid peer review if she agreed to abide by a departmental
policy for treatment of appendicitis and to admit her errors
in a number of cases, suggests pretext. In her view, the offer
shows that no one truly believed she was a danger to pa-
tients because she could have kept her privileges and her
appointment if she had “submitted.” Again, that inference is
not reasonable on this record, which is replete with undis-
puted evidence that defendants and the SOC believed Dr.
Liu’s approach was dangerous—to say nothing of the com-
plications that actually occurred in some cases.
22 No. 14-1775
The same is true of what Dr. Liu calls the HIPAA “ruse.”
She says that she was well within her rights to access patient
information to prove that her colleagues erred more fre-
quently than she did, and that defendants’ HIPAA expert
was unaware of any cases in which a physician was termi-
nated for violating HIPAA. But the pretext inquiry turns on
honesty, not correctness, and even if we assume a less severe
punishment might have been more appropriate, that fact
does not, without more, provide evidence of pretext. See Za-
yas v. Rockford Memorial Hospital, 740 F.3d 1154, 1158–59 (7th
Cir. 2014) (“Thus, it is irrelevant if Zayas’ emails were not
egregious enough to justify her termination, as long as
Griesman believed they were. … Therefore, we have no
trouble finding that Zayas’ emails were not a pretextual basis
for her termination.”).
As a matter of medical science, we must assume for pur-
poses of summary judgment that Dr. Liu might ultimately be
correct that her approach to appendicitis treatment will
prove to be sound. But as we have said many times, we do
not sit as a super-personnel department, examining the wis-
dom of employers’ business decisions. E.g., Widmar v. Sun
Chemical Corp., 772 F.3d 457, 464 (7th Cir. 2014); Traylor v.
Brown, 295 F.3d 783, 790 (7th Cir. 2002); see also Forrester v.
Rauland-Borg Corp., 453 F.3d 416, 418 (7th Cir. 2006) (in ana-
lyzing pretext, “the question is never whether the employer
was mistaken, cruel, unethical, out of his head, or downright
irrational in taking the action for the stated reason, but simp-
ly whether the stated reason was his reason: not a good rea-
son, but the true reason”) (emphasis in original). By the same
token, we certainly do not sit as a super-medical review
committee. Nothing in the record before us suggests that de-
fendants’ concern with Dr. Liu’s repeated refusal to operate
No. 14-1775 23
on appendicitis and the repeated dangerous “complications”
was false. The district court correctly granted summary
judgment for defendants on these claims for race, sex, and
national origin discrimination and for retaliation.
B. Hostile Work Environment
To survive summary judgment on her claims for hostile
work environment, Dr. Liu must have presented sufficient
evidence to present a material issue of fact on four elements:
(1) her work environment must have been subjectively and
objectively offensive; (2) her race, sex, and/or national origin
must have been the cause of the harassment; (3) the conduct
must have been severe or pervasive; and (4) there must be a
basis for employer liability, meaning either that a supervisor
participated in the harassment or that Stroger Hospital was
negligent in discovering or remedying co-worker harass-
ment. Montgomery v. American Airlines, Inc., 626 F.3d 382, 390
(7th Cir. 2010).
Dr. Liu contends that the reprimands she received, in-
cluding those unrelated to her treatment of appendicitis,
constituted harassment sufficiently offensive, pervasive, and
severe to overcome summary judgment. We need not decide
this question, however, because no evidence permits a rea-
sonable inference that those reprimands were related to Dr.
Liu’s membership in any protected class. Dr. Liu proffers on-
ly Dr. Donahue’s statements to prove a connection: (1) he
called her a “good girl” in the year 2000; (2) he once asked
Dr. Liu why she needed a raise when her husband worked;
(3) he asked a different female doctor, outside of Dr. Liu’s
presence, why all female doctors have to be “bitches”; and
(4) he sent the May 2, 2008 memo stating that “American
surgeons” treat appendicitis with surgery. Dr. Liu has of-
24 No. 14-1775
fered no evidence that the first three remarks, none of which
came from Drs. Keen or Madura, are connected in any way
to the memoranda and reprimands she received much later.
Dr. Donahue’s “American doctors” remark did appear in one
of the letters that Dr. Liu condemns as harassment, but that
single ambiguous remark, bolstered by nothing more than
Dr. Liu’s own speculation, cannot support her theory that
national-origin bias motivated the defendants’ behavior in
communicating their disagreement with the quality of care
she provided to patients.
The judgment of the district court is AFFIRMED.