                         NONPRECEDENTIAL DISPOSTION
                          To be cited only in accordance with
                                  Fed. R. App. P. 32.1




              United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                    Argued April 12, 2010
                                    Decided June 16, 2010

                                              Before

                            RICHARD D. CUDAHY, Circuit Judge

                            RICHARD A. POSNER, Circuit Judge

                            TERENCE T. EVANS, Circuit Judge

No. 09-2948

PHILLIS DEWITT,                                        Appeal from the United States District
                       Plaintiff-Appellant,            Court for the Central District
                                                       of Illinois.
       v.
                                                       No. 1:06-cv-01181-JBM-BGC
PROCTOR HOSPITAL, an Illinois
not-for-profit corporation,                            Joe Billy McDade,
                       Defendant-Appellee.             Judge.



                                          ORDER

       In the first go-around of this employment discrimination case, Phillis Dewitt alleged
that Proctor Hospital terminated her employment as a registered nurse in violation of her
“association” rights under the Americans with Disabilities Act (ADA), and because of her
age and gender. Proctor, arguing that she did not have enough evidence to prove her
claims, moved for summary judgment. While the motion was pending, Dewitt sought leave
to amend her complaint and add a fourth count alleging retaliation in violation of the
Employee Retirement Income Security Act (ERISA). She also filed a motion for judgment on
No. 09-2948                                                                             Page 2

the pleadings. The district court granted Proctor’s motion for summary judgment on all
three counts, and denied Dewitt’s motion to add the fourth count and her motion for
judgment on the pleadings. Dewitt appealed, and we affirmed the district court’s dismissal
of her age and gender discrimination claims, but reversed with respect to her ADA
association claim. Further, we reversed the district court’s denial of her motion for leave to
amend, but upheld its denial of her motion for judgment on the pleadings. See Dewitt v.
Proctor Hospital, 517 F.3d 944 (7th Cir. 2008).

        Back in the district court, Dewitt added the ERISA claim to her complaint. After
eight months of discovery, Proctor again moved for summary judgment. This time,
however, the hospital argued (it hinted at this during the first round) that Dewitt was fired
for inappropriate, unprofessional, and disrespectful behavior. Dewitt not only opposed the
summary judgment motion, but also filed a motion of her own to strike parts of an affidavit
Proctor offered that went to the heart of the ADA ”association” discrimination claim. The
district court granted Proctor’s motion and denied Dewitt’s motion to strike. Dewitt
appeals once again.

        In September 2001, Proctor hired Dewitt to work as a nurse on an “as-needed” basis.
One month later, she was promoted to second-shift clinical manager where she supervised
nurses and other Proctor staff members. In the summer of 2005, she switched to part-time
and shared the responsibilities of second-shift clinical manager with a coworker. In her last
evaluation, her immediate supervisor, Mary Jane Davis, the Vice President of Nursing,
described her as an “outstanding clinical manager [who] consistently goes the extra mile.”
A little later, as we shall see, Davis came to see Dewitt in a far less favorable light.

       During all this time, Dewitt was experiencing difficulties at home. Her husband,
Anthony, who was covered under Proctor’s health insurance plan, was suffering from
prostate cancer (he was first diagnosed with the condition in 1994) and receiving expensive
medical care. Since Proctor was self-insured, it paid for medical costs up to $250,000.
Anything above $250,000 was covered by a “stop-loss” policy issued by the Standard
Security Life Insurance Company of New York.

         Not surprisingly, Proctor kept a careful eye on its employee’s medical expenses. In
fact, each quarter the administrator of Proctor’s medical plan prepared a “Stop-Loss Report”
for Linda Buck, Proctor’s Vice President of Human Resources, which identified all
employees whose recent medical claims exceeded $25,000. These reports showed that in
2003, Anthony’s medical claims were $71,684. In 2004, they increased to $177,826. In the
first eight months of 2005, the expenses were $67,281.50.

      At work, Dewitt frequently discussed her husband’s medical condition with other
employees including Davis. She also submitted a Family and Medical Leave Act request to
No. 09-2948                                                                            Page 3

Davis which indicated that her husband’s cancer was terminal. In September 2004, Davis
asked Dewitt about the treatment Anthony was receiving. When Dewitt responded that he
was receiving chemotherapy and radiation, Davis asked her if she had considered hospice
care for her husband. Dewitt explained that Anthony’s doctor considered hospice care at
that time to be premature. Davis then told Dewitt that a committee was reviewing
Anthony’s unusually high medical expenses. Five months later, in February of 2005, Davis
once again inquired about Anthony’s condition. Dewitt informed her that it had not
changed. Six months later, in August 2005, Proctor terminated her employment.

        In her suit, Dewitt invoked the seldom used “association discrimination” prong of
the ADA. She argued that her husband had a disability (Proctor doesn’t contest the point)
and that she was fired because his medical bills, growing out of the disability, were a
financial burden to the hospital under its self-insured expense reimbursement plan. This,
she argued, was “association discrimination” under the ADA. As the concurring opinion in
our first decision notes, however, this claim might very well have been doomed from the
get-go. Yet Proctor again doesn’t rest its defense on the point. Instead, it says the
admittedly high medical expenses incurred by Anthony didn’t cause it to show Dewitt the
door. The reason Dewitt was let go, says Proctor, was a conflict with her supervisor, Davis.
And it’s undisputed that a conflict existed. In furtherance of the conflict, it appears
undisputed that Dewitt:

       • Openly questioned whether she wanted to continue working at Proctor;
       • Said she had philosophical differences with Davis’ “management style;”
       • Threatened to escalate the conflict by taking her dispute with Davis to
       both a VP and the CEO of the hospital; and
       • Called Davis “rude and obnoxious” although she denied that she did so “loudly.”

       In our earlier opinion, we wrote that if “Proctor had a legitimate, nondiscriminatory
reason for firing Dewitt, she would be out of luck.” Dewitt v. Proctor, 517 F.3d at 949. This
observation also holds true for the new ERISA retaliation claim.

        Based on these undisputed facts, we agree with the district court that Proctor had a
legitimate nondiscriminatory reason for terminating Dewitt’s employment. She simply
can’t show that Proctor’s stated reason for its action was a pretext for covering up ADA
discrimination based on her association with her (most likely) disabled husband — even if
that claim had legs in the first place.

       Accordingly, the judgment of the district court is AFFIRMED.
