In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1391

FE A. VELASCO, M.D.,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF HUMAN SERVICES,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4314--Suzanne B. Conlon, Judge.


Argued September 26, 2000--Decided April 12, 2001




  Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.

  COFFEY, Circuit Judge. On June 30, 1999, Dr. Fe
A. Velasco, a Filipino-American woman, filed a
four-count complaint alleging that the Illinois
Department of Human Services’ decision to
terminate her employment violated a number of
federal employment laws. Specifically, Velasco
asserted race and gender discrimination under
Title VII (Count One), race discrimination under
42 U.S.C. sec. 1981 (Count Two), retaliation
under Title VII and 42 U.S.C. sec. 1981 (Count
Three), and a violation of the Americans with
Disabilities Act (ADA) (Count Four). On August
16, 1999, the Illinois Department of Human
Services filed a motion to dismiss the first two
counts of Velasco’s complaint, alleging that: (1)
Velasco’s Title VII race and gender
discrimination claims (Count One) were untimely
as they were filed more than 90 days after she
received a right-to-sue letter; and (2) that the
Eleventh Amendment immunized the Department of
Human Services from Velasco’s 42 U.S.C. sec. 1981
claims (Count Two). The district court granted
the defendant’s motion and dismissed counts one
and two of Velasco’s complaint. On December 3,
1999, the Department also moved for summary
judgment on counts three and four of Velasco’s
complaint, contending: (1) that it had a
legitimate, nondiscriminatory reason for
discharging Velasco; and (2) that Velasco was not
a "qualified individual with a disability" under
the ADA. The district court granted summary
judgment to the Department with respect to counts
three and four, and dismissed Velasco’s
complaint. We affirm.

I.   BACKGROUND
A.   Factual History

  In 1986, the Illinois Department of Human
Services hired Fe Velasco, M.D., as a forensic
psychiatrist at the Elgin Mental Health Center
(Elgin) to treat primarily those patients who
either had been adjudged mentally incompetent to
stand trial or had been acquitted of criminal
charges by reason of insanity. On August 15,
1997, Velasco volunteered to be Elgin’s Medical
Officer of the Day (MOD) during the evening shift
and was, therefore, the only physician on duty at
Elgin from 4:00 p.m. until midnight. As the MOD,
Velasco was responsible for attending to all
medical emergencies at the facility.

  That evening, at approximately 8:00 p.m., a
patient in the Wines building began choking on
food, and, at 8:04 p.m. a "Code Blue" alert was
announced over Elgin’s voice page system./1
Velasco, as the MOD, was obligated to respond
immediately to the Code Blue and provide medical
treatment to the patient. At the time of the Code
Blue, she was sitting in the Elgin Medical
Building, but claims that she did not hear the
announcement./2 In any event, Velasco became
aware of the emergency minutes later (at 8:08
p.m.) when her personal pager directed her to
call an extension in the Wines Building. Upon
calling, Velasco spoke with nurse Paul Bute and
learned that he had performed the Heimlich
maneuver (without success) on a choking patient.
Despite being informed by Bute that the patient
was gasping for air, Velasco did not immediately
respond to the emergency, but instead asked Bute
to "keep her updated on the situation" because
"she was in the middle of her lunch."

  Meanwhile, paramedics from St. Joseph’s Hospital
arrived at approximately 8:14 p.m. and left with
the patient at approximately 8:25. p.m./3
Velasco, according to her own deposition
testimony, was only a "five minute" walk away,
but did not arrive at the Wines building until
after the paramedics had departed with the
patient, some twenty minutes after the Code Blue
page was initially activated. Although the
patient was released from St. Joseph’s Hospital
a few hours later that evening, Velasco did not
actually visit the patient until 1:35 a.m. the
next morning.

  Dr. Stephen Dinwiddie, who as the Elgin Medical
Director supervises all medical professionals
employed at Elgin, met with Velasco on Monday,
August 18, 1997. During the meeting, Dr.
Dinwiddie informed Velasco that he had ordered an
internal investigation of the Code Blue incident
referenced above. Dr. Dinwiddie further advised
Velasco that if the investigation concluded that
she did not provide a timely response to the
choking patient, she should consider resigning
rather than facing charges of neglect of duty
which could result in termination of her
employment. Almost one month later, on September
11, 1997, the Elgin internal investigation office
submitted a report to Dr. Dinwiddie that stated:

There appears to be no dispute that Dr. Velasco
was not present on the unit, and did not seek nor
attend to the patient, from the beginning of the
choking episode to the time of the transfer to
St. Joseph’s. Neither is this (her non-
attendance) refuted in any of the statements
completed by staff interviewed subsequent to the
incident.

  Based on this report, Dr. Dinwiddie sent a
letter to Darek Williams, the Elgin Director of
Human Resources, recommending that Velasco’s
employment be terminated. According to Dr.
Dinwiddie’s letter, his recommendation to
discharge Dr. Velasco was based on the following:

That when "Dr. Velasco was called and told of the
acute choking situation, she said that she was in
the ’middle of dinner and to keep her updated.’"

That when "she arrived on the Unit after the
patient had been transported . . . she wrote a
note which has a date, but no time, thus
potentially obscuring her role in this incident."

That the patient returned at 10:15 but that Dr.
Velasco "did not examine the patient in person
until" 1:35 a.m. the next morning, "according to
her progress note."

Dr. Velasco’s failure to respond to the emergency
call that the patient was choking in a timely
way.

Dr. Velasco had been disciplined twice for
serious offenses, in particular and most
recently, for failing to go to another patient
who was exhibiting seizure symptoms.

  Under the terms of a master agreement
negotiated by the American Federation of State
County and Municipal Employees (AFSCME), no Elgin
employee could be disciplined or discharged
without first being afforded a hearing allowing
the employee the opportunity to rebut any charges
of wrongdoing. After reviewing Dr. Dinwiddie’s
report, Darek Williams scheduled a pre-
disciplinary hearing for November 21, 1997, to
consider whether Velasco’s employment at Elgin
should be terminated. Shortly before this pre-
disciplinary hearing, however, an AFSCME
representative contacted Williams and secured a
continuance of the hearing because Velasco had
been placed on medical leave.

  Velasco was placed on medical leave on November
18, 1997, after calling Elgin’s timekeeper and
stating that she had checked into a hospital for
depression./4 In support of Velasco’s request
for medical leave, on January 23, 1998, Dr. E.A.
Perakis, a psychiatrist, submitted a letter to
Elgin’s human resources director stating that
Velasco had been under his care since November
18, 1997, at which time he had advised her to
take a medical leave of absence. Some months
later, on May 12, 1998, Dr. Perakis submitted a
letter stating:

Dr. Velasco has been under my care since November
18, 1997 and has been treated for symptoms of
severe depression. During the past two years, she
has struggled with poor concentration, decreased
energy levels, tearfulness, and a severely
depressed mood. She has not been able to function
at a level which would enable her to practice
psychiatry.

I do not feel that [Velasco] was in any condition
to function adequately in her duties as a
psychiatrist nor to function sufficiently while
in any other kind of demanding job that would
utilize her skill level. I would definitely
consider the patient to have been totally
disabled during this period.

Prior to Dr. Perakis’ May 12, 1998 letter, no one
at Elgin had been informed that Velasco had a
disability which required accommodation. In fact,
Dr. Velasco never completed a "Request for
Reasonable Accommodation" form for her
disability.

  While Dr. Velasco applied for continuing medical
leave, Dr. Edith Hartman became aware that
Velasco’s staff privileges would expire in August
1998./5 On July 8, 1998, Dr. Hartman wrote
Velasco and warned:

Please be advised that your membership in the
Medical Staff Organization, and your privileges
as Physician Specialist C will expire on August
28, 1998.

In response, Velasco wrote a letter to Dr.
Hartman on July 12, 1998, stating:
Thank you for your kind consideration. I am
requesting the application for renewal of
membership in the Medical Staff organization be
sent to my residence as I am still medically
unfit to return back to work.

One month later, on August 12, 1998, Velasco
submitted an application to renew her staff
privileges at Elgin. On the application, Velasco
responded "No" to the question "Do you have any
physical or mental condition which could impact
on your ability to carry out any assigned
duties?" despite the fact that she: (1) had
admitted only a month before in her letter to Dr.
Hartman that she was "medically unfit to return
back to work"; and (2) was currently on medical
leave. On August 20, 1998, the Credentials
Committee allowed Velasco’s staff privileges at
Elgin to lapse because of her unresolved
personnel and health issues.

  On August 20, 1998, more than one year after
the Code Blue incident occurred, Elgin management
sent a notice to Velasco, stating:

Elgin Mental Health Center is contemplating
imposing disciplinary action upon you. (See
attached memo [alleging misconduct in handling
the "Code Blue" emergency of August 15, 1997])
According to AFSCME Master Contract, you will
have an opportunity in which to respond to these
charges. Therefore a conference has been
rescheduled for you on August 26, 1998 at 2:00
p.m. in Conference Room 113 of the Administration
Building.

At the August 26 conference, you may be
represented by your bargaining unit
representative.

Velasco requested that the hearing, now scheduled
more than one year after the incident, be delayed
due to her continuing health problems, but her
request was denied. On the date of the hearing,
Dr. Dinwiddie appeared on behalf of Elgin
management, recited the results of the internal
investigation report, and argued for her
discharge. As Velasco neither attended the
hearing nor requested that an AFSCME official
appear on her behalf, Dr. Dinwiddie’s arguments
and allegations went unchallenged and Velasco was
discharged effective on October 25, 1998.

B.   Procedural History

  Dr. Velasco originally filed charges with the
Equal Employment Opportunity Commission (EEOC)
and the Illinois Department of Human Rights
(IDHR) alleging race and gender discrimination
under Title VII of the Civil Rights Act of 1964,
42 U.S.C. sec.2000e, et seq., in March 1998.
Shortly thereafter, on May 18, 1998, Velasco
received a right-to-sue letter from the EEOC and
IDHR. Almost two months later, on August 14,
1998, she filed a two-count complaint in federal
court alleging race discrimination and Title VII
gender discrimination. On January 26, 1999,
Velasco moved (without reciting a reason) to
voluntarily dismiss her first complaint pursuant
to Fed. R. Civ. P. 41, and the trial judge
granted her motion.

  On February 22, 1998, only one month after
dismissing her first complaint, Velasco filed new
charges with the EEOC and IDHR alleging
retaliation and disability discrimination, but
not race discrimination. She received a right-to-
sue letter dated April 28, 1999, in response to
these charges. On June 30, 1999, Velasco filed
her second complaint and alleged race and gender
discrimination under Title VII despite the fact
that she had not made an allegation of race
discrimination in her February 1999 complaint to
the EEOC and IDHR. Thus, the second complaint was
filed over one year after the EEOC’s May 1998
right-to-sue letter authorizing a suit based on
race discrimination.

  On August 16, 1999, the Department filed a
motion to dismiss alleging that: (1) the race and
gender discrimination under Title VII claims in
Count One were filed more then 90 days after the
right-to-sue letter was issued and were,
therefore, untimely; and (2) that the Eleventh
Amendment immunized the Department, an agency of
the state of Illinois, from liability under 42
U.S.C. sec. 1981. The district court granted the
defendant’s motion and dismissed the Title VII
race and gender discrimination claims in Count
One and the section 1981 claims in Count Two.

  On December 3, 1999, the Department moved for
summary judgment on the remaining counts
(alleging violation of the ADA and discriminatory
retaliation) contending that: (1) the department
had a legitimate nondiscriminatory reason for
discharging Velasco; and (2) Velasco was not a
"qualified individual with a disability" under
the ADA. The district court granted the
Department’s motion on January 14, 2000, and
dismissed Velasco’s remaining claims. Velasco
appeals.

II.   DISCUSSION

  We review de novo the district court’s decision
to grant both a motion for summary judgment and
a motion to dismiss, accepting all facts and
inferences in a light most favorable to Velasco.
Vukadinovich v. Board of Sch. Trustees, 978 F.2d
403, 408 (7th Cir. 1992), cert. denied, 510 U.S.
844 (1993). Summary judgment is appropriate
whenever "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." Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). "If
no reasonable jury could find for the party
opposing the motion, it must be granted."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).

A.   ADA Claim

  Whatever the merits of Velasco’s ADA claim were
before she filed her suit, the Supreme Court’s
recent decision in Board of Trustees of the Univ.
of Alabama v. Garrett, 121 S. Ct. 955 (2001) bars
her ADA claim under the Eleventh Amendment. We
are, of course, bound to follow the holdings of
our nation’s highest court. United States v.
Gillespie, 974 F.2d 796, 804 (7th Cir. 1992)
("[O]ur obligation is to follow Supreme Court
precedent, not contract or expand it . . . .").
Given that the Garrett decision is directly on
point, we need not address this issue any
further.

B.   Title VII Retaliation Claim

  Dr. Velasco contends that the district court
improperly granted summary judgment on her claim
of retaliation under Title VII. On appeal, Dr.
Velasco argues that a factual question exists as
to whether she was terminated in retaliation for
her decision to file charges of race and sex
discrimination against the Illinois Department of
Human Services. We disagree.

  As is well known, Title VII prohibits an
employer from taking adverse employment action or
discriminating against an employee merely because
the employee

. . . has opposed any practice made an unlawful
employment practice by this subchapter, or
because he has made a charge, testified, assisted
or participated in any manner in an
investigation, proceeding or hearing under this
subchapter.

42 U.S.C. sec. 2000e-3(a). Thus, it is unlawful
for an employer to discharge an employee simply
because that employee has filed a charge under
Title VII. Juarez v. Ameritech Mobile
Communications, Inc., 957 F.2d 317, 321 (7th Cir.
1992).
  1.   Burden-Shifting Analysis

  Dr. Velasco employed the burden-shifting
approach originally espoused in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) in resisting
the Department’s motion for summary judgment on
her retaliation claim. In the present case, the
Department concedes that Dr. Velasco can set
forth a prima facie case that she engaged in
protected activity by filing charges of
discrimination with the EEOC, and shortly
thereafter, suffered an adverse employment
action, namely being discharged./6 Under
McDonnell Douglas’ indirect, burden-shifting
approach, this concession forces the Department
to articulate a nondiscriminatory reason for
terminating Velasco’s employment which, if taken
as true, would support the conclusion that there
did exist a nondiscriminatory reason for her
discharge. St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 513 (1993). The Department asserts that
Velasco was terminated because she failed to
timely respond and supply medical attention
during a life-threatening Code Blue emergency
while serving as the Elgin MOD on August 15,
1997.

  Importantly, we have recently decided that an
employer that claims that a physician’s actions
have endangered patients has articulated a non-
discriminatory explanation for discharge that
satisfies this burden of production. Bekker v.
Humana Health Plan, Inc., 229 F.3d 662 (7th Cir.
2000). As we are of the opinion that a doctor
endangers persons entrusted to her care if and
when she fails to timely respond to medical
emergencies, we hold that the Department has
satisfactorily articulated a non-discriminatory
reason for terminating Velasco’s employment.

  As the Department has asserted a non-
discriminatory justification, the burden now
shifts to Dr. Velasco to prove by a preponderance
of the evidence that the Department’s proffered
reason was merely a pretext for discrimination.
To demonstrate pretext, Velasco must demonstrate
that the Department’s articulated reason for her
discharge either: (1) has no basis in fact; (2)
did not actually motivate her discharge; or (3)
was insufficient to motivate her discharge.
Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.
1995).

  Upon review of the record, we are convinced
that the Department’s asserted reason for her
discharge was supported by an adequate factual
basis. It is undisputed that a medical emergency
occurred on August 15, 1997, when a Code Blue
page announced an emergency in the Wines
Building. It is further undisputed that another
hospital employee, Jean Cattron, who was in the
same building as Velasco at the time of the Code
Blue call not only heard the call, but responded
to the alert and assisted the patient prior to
the arrival of paramedics. The record
demonstrates that Velasco, by her own admission,
did not arrive in the building until after
paramedics had left with the patient. Finally,
Velasco admits she advised a nurse attending to
the patient during the life-threatening emergency
that she was on her "lunch break." We also hold
that Dr. Velasco has failed to demonstrate that
her handling of the Code Blue incident did not
"actually motivate" her discharge or was
"insufficient to motivate" her discharge.
Collier, 66 F.3d at 892.

  Dr. Velasco asserts that the temporal proximity
between the time she filed a charge of
discrimination (September 2, 1997) and Dr.
Dinwiddie’s recommendation to terminate her
employment (October 14, 1997) creates a question
of fact as to whether the Department discharged
her in retaliation for filing a discrimination
claim. Dr. Velasco’s reliance on the temporal
proximity between her complaint and discharge is
misplaced because Dr. Dinwiddie became concerned
about Dr. Velasco’s mishandling of the Code Blue
incident well before Velasco filed a
discrimination charge. In fact, on August 18,
1997, Dr. Dinwiddie told Velasco that she should
consider resigning rather than proceeding through
disciplinary proceedings that would likely result
in her termination.

C.   Race Discrimination

  Dr. Velasco’s final argument is that the
district court erred in dismissing her race
discrimination claim as being untimely. A
plaintiff must file an action for race
discrimination within 90 days of receiving a
right-to-sue letter. Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990). Dr. Velasco
received a right-to-sue letter on May 18, 1998,
and timely filed her first complaint against the
Department alleging race and gender
discrimination under Title VII on August 14,
1998. On January 26, 1999, however, Velasco moved
to voluntarily dismiss her first complaint
pursuant to Fed. R. Civ. P. 41, and the court
granted her motion.

  When Velasco filed new charges with the EEOC on
February 22, 1998, she alleged retaliation and
disability discrimination, but did not re-assert
charges of race discrimination. Consequently, the
April 28, 1999 right-to-sue letter she received
in response to her February charges authorizes
her to file a suit for "retaliation and
disability discrimination" but not race
discrimination. Thus, the only authorization Dr.
Velasco has ever received to bring the claim of
race discrimination contained in her second
complaint was conferred on May 18, 1998, over one
year prior to her filing of the second complaint.
Her race discrimination count is clearly not
timely. See generally Brown v. Hartshorene Pub.
Sch. Dist. #1, 926 F.2d 959, 961 (10th Cir. 1991)
("Courts have specifically held that the filing
of a complaint that is dismissed without
prejudice does not toll the statutory filing
period of Title VII. See Price v. Digital Equip.
Corp., 846 F.2d 1026, 1027 (5th Cir. 1988) (per
curiam); Wilson v. Grumman Ohio Corp., 815 F.2d
26, 28 (6th Cir. 1987) (per curiam). We agree.").

  The district court’s decision is

AFFIRMED.



/1 Code Blue is the highest, most urgent call used
at the Elgin facility and signifies a life-
threatening medical emergency. Elgin’s "voice
page system" is a series of loud speakers
contained in almost every building at Elgin,
including the Medical Building where Velasco was
seated at the time that the Code Blue was
announced.

/2 Jean Cattron, another Elgin employee, stated in
a subsequent investigation that she (Cattron) was
in the Medical Building and heard the Code Blue
announced over the loud speakers.

/3 Dr. Velasco alleges that the paramedics
transferred the patient at 8:15 p.m. not 8:25
p.m., but offers no support for this contention.
More importantly, she does not dispute that the
paramedics, arriving from a separate medical
treatment facility, responded to the emergency
and transferred the patient to St. Joseph’s
Hospital before she arrived on the scene.

/4 Due to Velasco’s numerous requests, her medical
leave was eventually extended through November 4,
1998, and she never returned to work at Elgin.

/5 "Staff Privileges" at a hospital allow a licensed
doctor to practice medicine at a particular
institution. As the Chair of the Elgin
Credentials Committee during all times relevant
to this appeal, Dr. Hartman reviewed requests
from doctors to obtain or renew staff privileges
at Elgin.
/6 To establish a prima facie case of retaliation
under Title VII, Velasco must prove that (1) she
engaged in statutorily protected expression; (2)
she suffered an adverse action by her employer;
and (3) there is a causal link between the
protected expression and the adverse action.
Adusumilli v. City of Chicago, 164 F.3d 353, 362
(7th Cir. 1998).
