TONDALAYA GAMBLE, M.D., Plaintiff-Appellant, v. COUNTY OF COOK, et al., Defendants-Appellees.
No. 23-1531
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 24, 2024 — DECIDED JULY 2, 2024
Before WOOD,1 SCUDDER, and LEE, Circuit Judges.
LEE, Circuit Judge. Tondalaya Gamble, a Black physician, worked at Cook County Health‘s John Stroger Hospital for roughly eleven years. Gamble has sued Cook County, as well as her former department and division chairs, Edward Linn and Fidel Abrego, for race discrimination. Gamble alleges that Cook County violated Title VII of the Civil Rights Act of 1964,
I. Background
Following a three-year medical fellowship in urogynecology, Gamble accepted a position at Stroger Hospital in 2009. Gamble joined the Obstetrics and Gynecology (OB/GYN) department. The department had five divisions, including general OB/GYN. Linn served as the Chair of the department and oversaw each division. Abrego chaired the general OB/GYN division and reported to Linn. Physicians within the OB/GYN department were classified as either generalists responsible for providing general OB/GYN services, or subspecialists charged with specialized OB/GYN care.
Over the course of Gamble‘s employment, she dealt with large patient loads and at various times requested additional support. Many of Gamble‘s requests went unanswered. After a little over a decade at Stroger, Gamble resigned in 2020 and later filed this suit.
II. Analysis
Gamble asserts that Linn, Abrego, and Cook County discriminated against her based on her race. According to Gamble, the district court erred in granting summary judgment in thеir favor because she had presented evidence that she was paid less than similarly situated non-Black physicians.
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a mattеr of law.”
Gamble had two paths to survive summary judgment. She either needed to establish a dispute of material fact under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or more generally present enough evidence from which a reasonable jury could find that Defеndants discriminated against her because she‘s Black. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 766 (7th Cir. 2016) (stating that, when evaluating race discrimination claims, “all evidence belongs in a single pile and must be evaluated as a whole“). Gamble pursues both avenues. We begin with Gamble‘s efforts to establish a prima facie case under McDonnell Douglas.2 To demonstrate a prima facie case of disparate pay, Gamble must show that: (1) she is a member of a protected group; (2) she was fulfilling her employer‘s legitimate performance expectations; and (3) she suffered an adverse employment action in that she was paid a lower salary than a “similarly situatеd” nonprotected class member. Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 274 (7th Cir. 2004).
Neither party disputes that Gamble satisfies the first and second prongs. As a Black woman, Gamble belongs to a protected class, and Defendants acknowledge that she met Stroger‘s legitimate expectations. But ultimately, no rеasonable jury could find from this record that Gamble was similarly situated to her chosen comparators. “To prevail by showing a similarly situated employee was treated differently, a plaintiff must show the purported comparator was ‘directly comparable tо her in all material respects’ so as to ‘eliminate other possible explanatory variables.‘” Downing v. Abbott Lab‘ys, 48 F.4th 793, 805 (7th Cir. 2022) (quoting Williams v. Off. of Chief Judge of Cook Cnty., 839 F.3d 617, 626 (7th Cir. 2016)). In deciding whether two employees are directly comparable, courts look at a host of relevant factors, including whether the employees “(i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications—provided the employer considered these latter factors in making the personnel decision.” Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003).
Gamble identifies two white physicians as potential comparators—Bruce Rosenzweig and Karen Fish. At the time of Gamble‘s hire, Rosenzweig staffed the urogynecology clinic. Rosenzweig was a part-time employee and worked half the hours of full-time employees, including Gamble. Both physicians staffed the urogynecology clinic for roughly a year, after which Cook County Health eliminated Rosenzweig‘s role, and he was let go. As for Fish, Stroger hired her as a general obstetrician within the OB/GYN department a shоrt time before Gamble. Based on Fish‘s experience—mainly in laparoscopic surgery—she was hired as an attending physician, grade level eleven.
According to Gamble, she and Rosenzweig were similarly situated because they were both trained urogynecologists, they both worked in the OB/GYN department, they reported to the same department chair, and they both treated Stroger‘s urogynecology patients in the clinic and operating room. Despite their similarities, Gamble maintains that she was paid less, which allows a jury to infer nеfarious racial discrimination.
We have observed that full-time and part-time employees often lack sufficient similarities to serve as adequate comparators. See Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1155 (7th Cir. 1997). This is because, in addition to working fewer hours, part-time employees typically receive less pay and different benefits than their full-time counterparts. But it is important to note that the part-time versus full-time distinction is not dispositive in and of itself. Instead, to determine whether employees (full-time and part-time) are similarly situated, we use a “flexible, common-sense, and factual” approach. Coleman v. Donohoe, 667 F.3d 835, 841 (7th Cir. 2012). And only where a part-time employee and a full-time employee differ solely in hours worked and are materially similar in all other respects can they serve as relevant comparators. See, e.g., Johnson v. Statewide Investigative Servs., Inc., No. 22-2820, 2023 WL 8643636, at *3 (7th Cir. Dec. 14, 2023). Thus, when comparing a part-time worker to a full-time worker, we examine whether differences other than their assigned hours come along with that status.
Here, we agree with the district court that Gamble and Rosenzweig are not similarly situated—but not only because they worked a different number of weekly hours. At the time Gamble was hired, Rosenzweig had been practicing in urogynecology for many years. Rosenzweig held a different title than Gamble, and they performed different duties. He worked as a urogynecology subspecialist, while she was hired as a generalist. Gamble had to take on-call shifts in the general OB/GYN clinic; Rosenzweig worked exclusively in the urogynecology clinic. It is true that Gamble performed subspecialty duties (in addition to her generalist responsibilities) and that she wished to be reclassified as a subspecialist. But she herself says her title and position never changed. Furthermore, given that they were both salaried employees, Gamble does not explain why simply doubling Rosenzweig‘s salary based on hours worked provides the correct point of сomparison. (Indeed, there could be many reasons why a hospital might have to pay a physician who works half-time more than half of a full-time physician‘s salary, the lack of full-time benefits being one.) Finally, there is no evidence in the record that the CBA governing Gamble‘s employment also applied to Rosenzweig. These differences make Rosenzweig an inapt comparator for Gamble‘s discrimination claim.
The district court‘s determination that Gamble and Fish are not similarly situated also finds support in the record. Although Fish and Gamble both worked in the OB/GYN department, they had different levels of experience and were hired to perform different duties. Fish had extensive experience in minimally invasive surgeries and was hired specifically to fill a departmental deficiency in laparoscopiс surgeries. By contrast, at the time of her hire, Gamble had recently finished her urogynecology fellowship.
Glossing over these differences, Gamble focuses on various points in time when Fish earned more than she did. For example,
In addition to the burden-shifting framework of McDonnell Douglas, Gamble also invokes the totality approach articulated in Ortiz, pointing to other ways in which she was treated less favorably than her non-Black counterparts. For example, she argues, Rosenzweig never had to assist in the general obstetrics and gynecology clinic while Gamble did. Similarly, she says, Fish did not have to practice in the urogynecology clinic and cover generalist duties, while she did. Gamble also cites a 2013 grievance filed by the Union on her behalf. The grievance alleged that Cook County had violated the CBA by failing to adjust Gamble‘s pay or work conditions after she had complained that the differences were discriminatory. Cook County settled the grievance by raising Gamble‘s pay, and this, she contends, is evidence of race discrimination (never mind that the raise bоosted Gamble‘s pay above Fish‘s for a time).
Gamble is correct that a factfinder may infer discrimination when an employer treats a Black employee less favorably than similarly situated non-Black employees. de Lima Silva v. Dep‘t of Corr., 917 F.3d 546, 559 (7th Cir. 2019). But as we explained, the non-Black physicians Gamble presents are not similarly situated. Fish had more experience and focused on minimally invasive surgeries. And Rosenzweig was not employed as a generalist at all. So even if Fish or Rosenzweig were paid more for their work, or they had easier workloads, thosе facts do not support an inference of race discrimination. And Gamble presents no other evidence suggesting that her pay or demanding work responsibilities were because of her race. Given the paucity of evidence to support her claims, wе agree that no reasonable jury could find that Cook County, Linn, or Abrego subjected Gamble to race discrimination.
III. Conclusion
The judgment of the district court is AFFIRMED.