Leitgen v. Franciscan Skemp Healthcare, Inc. ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1496
C HRISTINE L EITGEN,
Plaintiff-Appellant,
v.
F RANCISCAN S KEMP H EALTHCARE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-cv-038-bbc—Barbara B. Crabb, Judge.
A RGUED S EPTEMBER 17, 2009—D ECIDED JANUARY 13, 2011
Before R OVNER, S YKES, and T INDER, Circuit Judges.
R OVNER, Circuit Judge. Dr. Christine Leitgen sued
her former employer, Franciscan Skemp Healthcare
(“the Hospital”), under Title VII of the Civil Rights Act
of 1964, claiming as relevant here that it retaliated
against her by forcing her to resign after she com-
plained that its compensation scheme unlawfully under-
paid physicians based on gender. The Hospital pools
revenue received for childbirth deliveries and redistrib-
2 No. 09-1496
utes the receipts equally among all physicians in the
obstetrics department, but Leitgen advocated for a
system that would pay physicians on a per-delivery
basis. The district court granted summary judgment for
the Hospital. We affirm.
I.
Leitgen began working as a physician in the Hospital’s
Department of Obstetrics and Gynecology in 1993.
The number of doctors in the group fluctuated with
time, but when Leitgen joined she became the fourth
physician and second woman in the group. Over the
years Leitgen developed her practice and became one of
the department’s most in-demand and highest paid
doctors, frequently performing more than 100 deliveries
per year. In January 1999, the department appointed her
to serve as chairperson, and in 2002 it reappointed her to
a second term. Leitgen stepped down before her second
term expired, however, to dedicate more time to her
clinical practice, and after about a year of interim leader-
ship, the Hospital eventually hired Dr. Edward Sandy
in August 2004 to serve as the department’s new chair.
A.
Throughout Leitgen’s employment, the Hospital billed
pregnant women for a package of services that included
both prenatal care and delivery. And although the
Hospital compensated the patient’s primary physician
directly for providing prenatal services, it pooled the
No. 09-1496 3
revenue generated from the delivery and redistributed
it equally among the physicians in the group. Because
of this policy of sharing delivery revenue, the doctors
who performed the most deliveries—regardless of
gender—received less payment than they would under
a system where each doctor was paid purely for
services rendered.
At several points during Leitgen’s employment, she
and other female physicians expressed concern that,
because each woman in the practice had a larger patient
base and thus tended to perform more deliveries than
each man, the Hospital’s policy of pooling delivery reve-
nue meant that the women were unfairly compensated
for their birthing services. Between 1993 and 1999, even
though her salary was one of the highest in her group,
Leitgen complained numerous times about the pay struc-
ture to the then-chair of the department. At one point
the chair raised the issue with the Hospital’s compensa-
tion committee and learned that any change would
have to be made within the department. No change was
made after these initial inquiries.
The female physicians again raised the issue during
Leitgen’s tenure as chair. At that point it remained
unclear whether a change required a unanimous vote of
the department, but regardless, Leitgen did not try to
modify the system because the female doctors in the
group feared that a change would adversely affect the
department’s morale. In 2003, one of the department’s
other female physicians, Dr. Karen Keil, complained again
to Leitgen about the compensation setup, pointing out
4 No. 09-1496
that because she and Leitgen currently performed more
deliveries than anyone else in the group, the system
was most detrimental to them. When Sandy became the
department chair, both Keil and Leitgen informed him
that they thought the compensation system was unfair
to them, both as women and as high-volume physicians.
(The parties dispute whether Leitgen and Keil framed
their problem with the compensation system as im-
plicating possible gender discrimination, but for pur-
poses of summary judgment we resolve that dispute
in Leitgen’s favor.)
In light of these complaints, the department’s physi-
cians discussed compensation schemes several times.
When Sandy became chair, he put the issue on the
agenda for multiple department meetings and distrib-
uted scholarly work outlining different potential models
of compensation. Sandy also expressed a concern that
paying doctors based purely on their number of
deliveries would tempt them to schedule medically
unnecessary inductions so that patients would give
birth during a particular shift. At no point during any
of these discussions did Leitgen or any other doctor ask
for a vote on the issue, and the shared-revenue arrange-
ment remained in place.
When Leitgen’s intra-departmental complaints proved
unproductive, she took her concerns directly to Tom
Tiggelaar, who was the secretary of the Hospital’s com-
pensation committee, the Hospital’s vice president of
finance, and the chief financial officer. On August 14,
2006, Leitgen emailed Tiggelaar requesting a meeting, and
No. 09-1496 5
Tiggelaar responded by speaking to Sandy about the
issue and by reaching out to other employees to
request statistics regarding Leitgen’s production as com-
pared to other members of the department. After
receiving delivery statistics, Tiggelaar met with Leitgen
on September 5, 2006, to discuss the matter. Leitgen
complained that the compensation system adversely
affected her pay and that she thought the pooling and
sharing of delivery revenues was discriminatory to
women. (The Hospital disputes that gender-based dis-
crimination was part of this conversation, but again, we
assume for purposes of summary judgment that Leitgen
communicated the potential discriminatory import of
her concerns.) After the brief meeting, neither party
followed through on promises to resume their conversa-
tion. But, according to Tiggelaar, he reported “the essence”
of the meeting to both Sandy and Diane Holmay (one
of Leitgen’s supervisors) within a day or two. Leitgen
herself also informed Sandy that the meeting had taken
place. According to Leitgen, Sandy was annoyed that
she had taken her concerns outside of the department,
and their relationship suddenly soured after her meeting
with Tiggelaar.
B.
Although Leitgen generated substantial revenue on
behalf of the Hospital, her time with the OB/GYN depart-
ment was marred by conflicts with patients and staff.
Leitgen takes issue with the way other staff members
perceived her behavior during these conflicts, but she
6 No. 09-1496
acknowledges that patients and nurses complained about
her communication style. Even though we construe the
facts in Leitgen’s favor, we need not ignore the undis-
puted fact that these unflattering complaints were made
by patients and staff. For example, in 2001 a nurse com-
plained that Leitgen chastised her about her perfor-
mance and stated that it was “typical of the poor nursing
care” in the department. The following year, a patient
experiencing an ectopic pregnancy reported that Leitgen
refused to treat her. Later in 2002, a different nurse con-
fronted Leitgen, telling her that members of the sup-
port staff found her demeanor condescending. In 2003,
Leitgen met with members of the Hospital’s management
to discuss her combative communication with other
employees, and after that meeting one of the managers
recommended to Holmay that Leitgen be fired because
of her communication problems. But the Hospital
did not fire Leitgen at that time, and the following year
she and Holmay met with the same manager again to
discuss similar issues of teamwork and collaboration.
During that meeting Holmay confronted Leitgen about
new incidents involving conduct that Holmay con-
sidered disruptive to patient safety and staff camaraderie.
Even after these conversations with management
about respectful communication, nurses continued to
take issue with Leitgen’s behavior, and they reported
their concerns to Bonnie Young, the director of the depart-
ment’s nursing staff. Here again, Leitgen disputes the
way her behavior was perceived by the staff involved,
but admits that she received multiple oral warnings
between 2004 and 2006 that her communication with the
No. 09-1496 7
support staff was problematic. For example, Leitgen
acknowledges that at least two nurses told Young that
they refused to continue working in the department
because of the way Leitgen had treated them.
Despite these continued communication problems, in
her performance evaluation in March 2006, both Sandy
and Holmay identified positive contributions that
Leitgen made to the department. They told Leitgen that
she had shown some improvement in her interactions
with support staff and was an asset to the Hospital.
Sandy also asked Leitgen to serve on the recruiting com-
mittee, and he invited her to represent the department
at a conference at the end of the year. As of March 2006,
both Holmay and Sandy agreed that Leitgen faced no
risk of termination.
But four months after this performance evaluation,
nurses began to renew their complaints about Leitgen.
In July 2006, Young reported to Sandy that another
nurse, Wendy Stone, had complained that Leitgen had
humiliated and verbally abused her in front of a patient.
(Leitgen admits to having made comments that upset
Stone in front of a patient but contends that the com-
ments were justified by Stone’s performance.) The same
day that Sandy learned of the incident he wrote the first
of a number of emails to Holmay about the possibility
of disciplining Leitgen. In this email, Sandy said that he
had tolerated Leitgen because she added value to the
department, but he also commented that her behavior
could not “go on forever.” After meeting with Stone to
discuss the incident, Sandy sent another email to Holmay
8 No. 09-1496
stating that they needed to meet in person because, upon
reflection, he believed that Leitgen’s interpersonal con-
flicts were more serious than he had previously under-
stood. Both Stone’s complaint and Sandy’s decision
to explore discipline against Leitgen occurred more
than a month before Leitgen met with Tiggelaar in early
September 2006 to complain about the compensation
system.
Leitgen’s deteriorating relationship with nursing
staff and patients continued throughout September. For
example, while Leitgen was in the middle of a delivery,
a nurse called asking for assistance with a non-urgent
matter. Leitgen could not take the call herself, but she
told the person relaying the message to “go hit” the
nurse who had requested assistance. Leitgen later testi-
fied that she had meant this comment facetiously, but
she admitted that some people in the room apparently
did not take it as a joke. That same month a patient com-
plained that Leitgen had blamed her for the difficulties
that had arisen during her emergency Caesarean sec-
tion. And around the same time, Young received two
additional complaints from staff members about Leitgen:
a nurse complained that she had been belittled, and a
midwife reported that she was unable to build a collabora-
tive practice with Leitgen. Young did not notify Leitgen
about either of these incidents or complaints.
During September (the exact date is uncertain), while
she was still serving on the recruiting committee, Leitgen
also made comments that members of the Hospital
viewed as disloyal to its recruiting mission. Leitgen told
No. 09-1496 9
a doctor that the department was recruiting that she felt
her ideas were not heard, that she had little respect for
the nursing staff, and that she felt unhappy at the Hospi-
tal. In the course of that conversation, Leitgen told the
recruit that she would not have joined the Hospital
“knowing what she knows now” and that she might
be gone by the time he arrived. After this conversation
with Leitgen, the recruit contacted Sandy and expressed
a concern about accepting a position with the Hospital
because he feared that the physicians were unhappy.
C.
By early September 2006, having decided the previ-
ous month to discipline Leitgen for her abuse of staff,
Sandy and Holmay began preparing a recommendation
that Leitgen be terminated. They met with a member of
the management committee to determine what docu-
ments they would need, and shortly after this meeting,
Holmay asked Young to prepare a timeline listing in-
stances where nurses or patients had reported that
Leitgen was either rude or disruptive. Young prepared a
first draft of this timeline by September 8, 2006, based on
unofficial, private notes that she kept regarding conflicts
between staff members. Although Young memorialized
complaints from nurses regarding interactions with
doctors and other staff in these notes, she did not, as a
general rule, investigate the incidents or take note of
opposing viewpoints. Holmay and Sandy had been ex-
changing emails about disciplining Leitgen since at least
July 2006, but before September 2006 no one had been
10 No. 09-1496
gathering documentation about Leitgen “for the pur-
poses of termination.” In addition to requesting
the timeline, Sandy began excluding Leitgen from con-
versations about recruiting and told her that she would
no longer be representing the Hospital at the upcoming
conference. Sandy did not inform Leitgen that she was
in jeopardy of being fired.
On October 31, 2006, Sandy formally recommended to
the Hospital’s executive committee that it terminate
Leitgen. He supported his recommendation with the
following documentation: personal letters from both
him and Holmay, Young’s timeline, and a separate
timeline created by Holmay. Through these documents
and their personal statements to the committee, both
Sandy and Holmay expressed their opinion that, although
Leitgen was an amply qualified physician, her hostility
toward staff and patients was unacceptable. In addition
to these concerns, one of the members of the executive
committee emphasized that he was dissatisfied by the
negative comments Leitgen had made recently to the
physician the Hospital had been trying to recruit. After
hearing recommendations from Sandy and Holmay, the
committee voted to fire Leitgen.
On November 14, 2006, Leitgen attended a “termination
session” where members of the executive committee
told her that she could either resign or be fired. Leitgen
quit the following day. Holmay attended the meeting
with two other hospital administrators, but Sandy was
absent. At the meeting, the Hospital told Leitgen that
it was terminating her because of the numerous com-
No. 09-1496 11
plaints that nurses and patients had made against her
over the years. In discharging Leitgen, the Hospital
elected not to follow its policy recommending that it
notify employees in writing of potential disciplinary
actions resulting from disruptive behavior.
The district court granted summary judgment for the
Hospital. It bypassed the question whether Leitgen’s
complaints regarding the compensation system were
protected conduct and concluded that, even if they quali-
fied, no reasonable jury could find a causal connection
between Leitgen’s complaints and her forced resignation.
The court found it significant that Leitgen had been
complaining about the compensation system for years,
but the Hospital did not force her to resign until after
a flurry of complaints from nurses regarding her conduct.
II.
On appeal, Leitgen relies exclusively on the direct
method of proof to argue that genuine issues of material
fact prevent summary judgment for the Hospital. To
survive summary judgment on her retaliation claim
under the direct method, Leitgen needed to provide
sufficient direct or circumstantial evidence to establish
(1) that she engaged in protected conduct, (2) that she
suffered an adverse employment action, and (3) that there
was a causal connection between the two. See Jones v.
Res-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010); Casna v. City
of Loves Park, 574 F.3d 420, 426 (7th Cir. 2009). There is
no dispute that Leitgen’s forced resignation constitutes
an adverse employment action, so we are left with the
12 No. 09-1496
questions whether Leitgen engaged in protected conduct
and whether that conduct was causally connected to
her forced resignation. The district court bypassed the
issue of protected conduct, but because Leitgen focuses
on her conversation with Tiggelaar as the applicable
protected conduct and that conversation is relevant to
the question of causation, we begin our analysis there.
A.
For Leitgen to show that she engaged in protected
conduct, she had to prove that she had a reasonable,
good-faith belief that the compensation system was
discriminatory when she complained about it, but she
need not prove that the system was actually discrim-
inatory such that she would have prevailed on a claim
of intentional discrimination under Title VII. See Tate v.
Exec. Mgmt. Servs., Inc., 546 F.3d 528, 532 (7th Cir. 2008);
Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002).
Our requirement that Leitgen have a reasonable, good-
faith belief that her complaint involved gender discrim-
ination is not onerous. See Mattson v. Caterpillar, Inc., 359
F.3d 885, 892 (7th Cir. 2004). She simply had to show that
her belief that she was complaining about unlawful
discrimination was not “ ‘completely groundless.’ ” See
Fine, 305 F.3d at 752 (quoting McDonnell v. Cisneros, 84
F.3d 256, 259 (7th Cir. 1996)).
In her appellate brief, Leitgen acknowledges the Hospi-
tal’s argument that she never engaged in protected
conduct but responds that the Supreme Court’s decision
in Crawford v. Metro. Gov’t of Nashville & Davidson Cnty.,
No. 09-1496 13
129 S. Ct. 846 (2009), establishes that her complaints were
protected. Crawford addressed only whether cooperating
with an employer’s internal investigation of discrim-
ination was protected conduct, id. at 850-51, and is
not dispositive here. Instead, the question here is
whether Leitgen reasonably believed that her com-
plaints about the compensation system amounted to
more than a gender-neutral accusation that the system
unfairly penalized her as a high-volume physician and
instead charged gender discrimination.
Title VII, of course, prohibits discriminatory compensa-
tion based on gender, see 42 U.S.C. § 2000e-2(a)(1);
Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 656 (7th
Cir. 2010). The Hospital recognizes that a disparity
in pay based on gender would violate Title VII, but
argues that Leitgen lacked an objectively reasonable
belief that the Hospital’s pay system intentionally dis-
criminated against women. The Hospital supports its
position by pointing out that the compensation system
had remained the same throughout Leitgen’s employ-
ment, that Leitgen did not try to change the system
during her tenure as department chair, and that the
Hospital justified the pay scheme with the nondiscrim-
inatory interest in discouraging elective inductions.
But these reasons do not undermine the sincerity or
reasonableness of Leitgen’s complaint that she believed
the Hospital’s pay scheme to be discriminatory based
on gender. Throughout her opposition to summary judg-
ment, Leitgen has repeatedly pointed to evidence that
she has always framed her complaints as a potential
issue of gender discrimination. Moreover, the ongoing
14 No. 09-1496
nature of her complaints during her tenure, and her
tolerance of the system while she was chair, do not con-
clusively show that her complaints about the pay
system were unreasonable or insincere. Instead, these
facts suggest that the impediments to changing the com-
pensation system at the Hospital were significant and
enduring. Thus, we credit Leitgen’s contention for pur-
poses of summary judgment that her conversation
with Tiggelaar was protected conduct. We note, however,
that Leitgen’s focus on her conversation with Tiggelaar
as the particular instance of protected conduct that
caused her termination is relevant to the issue of causal
connection.
B.
Leitgen next argues that she presented sufficient evi-
dence that the Hospital’s decision to fire her was
motivated by her complaints about the compensation
system, particularly her conversation with Tiggelaar. To
establish a causal connection between her allegedly
protected conduct and her forced resignation, Leitgen
had to show that her complaints were “a substantial or
motivating factor” in the Hospital’s decision to fire her.
See Gates v. Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir.
2008) (citation and quotation omitted). Leitgen points to
circumstantial evidence that, in her view, shows that the
Hospital based its decision, at least in part, on her com-
plaints about the compensation system. We address her
evidence and, like the district court, conclude that the
inferences Leitgen attempts to draw from it are too at-
No. 09-1496 15
tenuated to survive summary judgment when con-
sidered individually or together.
Leitgen relies most heavily on the temporal proximity
between her conversation with Tiggelaar and her forced
resignation. As we have often observed, suspicious
timing alone is almost always insufficient to survive
summary judgment. Leonard v. E. Ill. Univ., 606 F.3d 428,
432-33 (7th Cir. 2010); Turner v. Saloon, Ltd., 595 F.3d 679,
687 (7th Cir. 2010). Leitgen nonetheless contends that
this case is the exception because Sandy and Holmay
began preparing for her termination just days after her
meeting with Tiggelaar. See Casna, 574 F.3d at 427 (finding
that suspicious timing created triable issue where em-
ployee was terminated one day after protected conduct);
Spiegla v. Hull, 371 F.3d 928, 943 (7th Cir. 2004) (four days
later); McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796-
97 (7th Cir. 1997) (two or three days later). After re-
viewing the evidence, we find that Leitgen cannot over-
come the general rule that suspicious timing alone is
insufficient to support a claim of retaliation.
First, Leitgen’s conversation with Tiggelaar was not the
first time that she complained about the compensation
system. To the contrary, she first pursued this issue
with the department years before the Hospital fired her.
When an employee’s protected conduct is separated by
a significant period of time from the adverse employ-
ment action, the proximity of the incidents does not
support a causal connection between them. See Leonard,
606 F.3d at 432 (finding adverse employment action six
months after protected conduct insufficient to establish
16 No. 09-1496
retaliation claim); Argyropoulos v. City of Alton, 539 F.3d
724, 734 (7th Cir. 2008) (seven weeks between events).
Leitgen responds that her complaints were ongoing
up until September 2006, and therefore a large time gap
does not separate her protected conduct from her dis-
charge. But this response misses the point. Because she
had been complaining to hospital executives about the
pay system for years, she must offer a valid reason why
her conversation with Tiggelaar would suddenly trigger
retaliation. She proposes one reason: It was the first
time she raised her concern to anyone outside the de-
partment. But this assertion is incorrect. Leitgen testified
that, with the help of the then-chair of the department,
she raised these concerns with the compensation com-
mittee (who are people outside the department) sometime
before she herself became chair in 1999. Even though
these extra-departmental complaints occurred before
Sandy came to the Hospital, Leitgen admitted that both
Sandy and Holmay—the executives who recommended
her termination—knew of her concerns about the com-
pensation system years before the Hospital forced her
to resign. A claim of retaliation based on suspicious
timing depends on what the relevant decision-makers
knew and when, see Salas v. Wis. Dep’t of Corr., 493 F.3d 913,
925 (7th Cir. 2007); Tomanovich v. City of Indianapolis, 457
F.3d 656, 668 (7th Cir. 2006), and here the evidence
shows that the relevant decision-makers knew of
Leitgen’s belief that the compensation system was dis-
criminatory long before they decided to terminate her.
Leitgen’s reliance on her conversation with Tiggelaar
as the protected conduct that caused her termination is
No. 09-1496 17
also flawed because Sandy and Holmay had begun dis-
cussing ways to discipline Leitgen before that meeting
ever took place. Sandy and Holmay exchanged emails
about how best to discipline Leitgen after she belittled
Nurse Stone in front of a patient in July 2006, weeks
before Leitgen wrote to Tiggelaar to request a meeting
and more than a month before that meeting occurred.
When a retaliation claim is based on suspicious timing,
“the order of events is even more important than the
time between them; the theory doesn’t work if the re-
taliatory act precedes the protected activity.” Leonard, 606
F.3d at 432. Here, although Leitgen asserts that there is
a dispute of fact, the evidence is conclusive that Sandy
and Holmay had decided to consider various disciplinary
responses to Leitgen’s disruptive behavior well before
she engaged in the allegedly protected conduct of talking
to Tiggelaar. And Holmay’s admission that no one had
begun gathering documentation to support the recom-
mendation for Leitgen’s termination until Septem-
ber 2006 does not refute the undisputed evidence that
Sandy and Holmay had already decided to pursue some
type of discipline against Leitgen well before she ever
met with Tiggelaar.
Leitgen next argues that the Hospital’s sudden creation
of a timeline of her “unacceptable behavior” just three
days after her meeting with Tiggelaar is suspicious
enough to overcome summary judgment. Although a
retaliation claim can be supported by evidence of “sudden
dissatisfaction with an employee’s performance,” particu-
larly when an employee has a generally good record,
Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir. 2005),
18 No. 09-1496
the evidence in this case belies that characterization.
Leitgen refers us to her “outstanding” performance
evaluation in March 2006, but in that evaluation, Sandy
and Holmay told her that her interpersonal relationships
had merely “improved.” In any event, Sandy and Holmay
did not suddenly become dissatisfied with Leitgen’s
behavior after she met with Tiggelaar; the evidence
shows that they both considered her behavior to be prob-
lematic before the meeting, and they were already in
the midst of devising methods to respond when she
requested the meeting. The undisputed evidence also
establishes that Holmay had been dissatisfied with
Leitgen’s interpersonal flaws for a long time, so much so
that she participated in meetings with administrators
three years earlier that had resulted in a recommenda-
tion that Leitgen be fired.
Leitgen also faults the Hospital for creating and relying
on a timeline that was not based on pre-existing docu-
ments and for failing to comply with its policy recom-
mending written warnings of unacceptable behavior. The
Hospital’s policy favors, but does not require, the
written notice that Leitgen claims she never received. By
Leitgen’s own admission, she learned of many of the
complaints against her when she was orally warned
about her behavior. And she does not deny that she
attended multiple meetings with Hospital administrators
where they notified her of their problems with her
attitude toward coworkers. Given that Leitgen admits
that she attended disciplinary meetings and received oral
warnings, the Hospital’s neglect to follow its recom-
mended policy of documenting those discussions is not
evidence of retaliation.
No. 09-1496 19
Finally, Leitgen argues that the Hospital also retaliated
against Keil, another female physician, by forcing her
to quit after she complained that the pay system dis-
criminated against her as a woman. This treatment,
Leitgen urges, further supports her claim of retaliation.
Although the Hospital’s discrimination against other
employees who raised similar complaints would be
circumstantial evidence to support Leitgen’s retaliation
claim, see Hasan v. Foley & Lardner LLP, 552 F.3d 520, 527
(7th Cir. 2008); Troupe v. May Dep’t Stores Co., 20 F.3d 734,
737 (7th Cir. 1994), Leitgen’s reliance on Keil is
unavailing because the record contains no evidence that
the Hospital did in fact discriminate against Keil.
For the foregoing reasons, we therefore A FFIRM the
judgment of the district court.
1-13-11