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Weihaupt v. American Medical Association

decided: May 2, 1989.

DAVID B. WEIHAUPT, PLAINTIFF-APPELLANT,
v.
AMERICAN MEDICAL ASSOCIATION, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 88 C 7917 -- James B. Moran, Judge.

Posner, Coffey, and Ripple, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge

Plaintiff David Weihaupt appeals the district court's grant of summary judgment and award of costs in favor of the American Medical Association ("AMA"), Weihaupt's former employer, in an age discrimination suit under 29 U.S.C. ยง 621, et seq. ("ADEA"). We affirm the grant of summary judgment in favor of the AMA. Because the district court failed to decide whether the AMA's requested costs are allowable and reasonable both in amount and necessity, we vacate the portion of the district court's judgment awarding costs and remand for such a determination.

I.

The plaintiff began working for the AMA at age thirty-three in 1965. He was initially employed as a field representative in the AMA's Field Services office in Chicago, Illinois. After the AMA reorganized its field service operations in 1972, Weihaupt worked in the area of physician membership development.

In 1977, Weihaupt became Special Assistant to the Director of the Public Affairs Division. In this position he organized and implemented a program of conferences in which AMA leaders met with their counterparts in the business community to discuss strategies to combat escalating health care costs. The AMA admits that due in large part to Weihaupt's efforts in developing this program, the AMA was able to further its goal of establishing local medical-business coalitions designed to encourage business entities to provide adequate medical insurance coverage to their employees. Weihaupt's success in this area was responsible for his promotion to Director of the Office of Corporate Liaison ("OCL"), a position requiring Weihaupt to intensify his efforts to further develop local medical-business coalitions. According to the plaintiff, he worked six days per week and traveled 100,000 miles per year in fulfilling the responsibilities of his position.

In November 1980, Kenneth Monroe, age thirty-four, became AMA Vice-President for Health Services Policy -- a position making him responsible for, among others, the activities of OCL. In May 1981, Monroe conducted his first formal evaluation of Weihaupt's performance as OCL director. Monroe gave Weihaupt an "overall satisfactory" rating, commenting that Weihaupt made "a fine contribution in a visible, difficult area . . . ." He described as "excellent" Weihaupt's work in establishing local coalitions and found that he worked extremely well with coalition participants. Monroe stated that he was not as accomplished in conceptualizing and setting priorities among his own programs and the AMA's other objectives in this area, and further that Weihaupt's writing skills left something to be desired.

In June 1981, pursuant to a plan for broad changes throughout the AMA, Monroe restructured and reorganized the Health Services Policy group. The two-person Office of Corporate Liaison, then headed by Weihaupt, was renamed the Department of Medical-Business Relations ("DMBR") and placed under the supervision of William Cohan, age fifty-one, the Director of the Division of Health Services.

At approximately the same time this reorganization was being implemented, Weihaupt became aware of the fact that he was suffering from cancer, causing absence from work for surgery, treatment and recuperation for a period extending from October 1981 until mid-January 1982.

In late 1981, the AMA House of Delegates adopted a resolution, "Coalitions for Health Care," which encouraged the medical, business and labor communities to go "beyond the important stage of discourse and exchanging views" and jointly develop specific health care programs and projects. In response to this resolution, Monroe directed Cohan to develop and implement a divisional plan, as well as undertake a staffing analysis for his division -- particularly for DMBR. On January 12, 1982, Cohan sent a memorandum to Monroe describing the skills required of the director and the staff of DMBR in order to implement the expanded goals for health care coalitions to comply with the guidelines the AMA House of Delegates set forth. Cohan identified the following skills as "essential": (1) the ability to conceptualize the most effective actions to be taken; (2) the ability to plan and organize the necessary work; (3) an analytical problem-solving ability; and (4) well-developed written and verbal communication skills.

After reviewing Cohan's list of qualifications, Monroe determined that Weihaupt was no longer qualified to direct the Department of Medical-Business Relations. Specifically, Monroe believed that Weihaupt lacked the ability to develop the measures necessary to implement the AMA's goals and analyze and conceptualize a plan, as well as organize a coherent strategy for the expanded coalition program. Furthermore, Monroe was of the opinion that Weihaupt's writing skills were inadequate to serve as the director of DMBR. Cohan, Weihaupt's immediate supervisor, agreed with Monroe's assessment of Weihaupt's skills and abilities, as well as his shortcomings.

Monroe thereafter reviewed his assessment of Weihaupt with Whalen Strohbar, Deputy Executive Vice-President of the AMA and Monroe's supervisor. Strohbar, age fifty, in addition to being a close personal friend of Weihaupt's, was very familiar with his work, had known him since 1965 when both of them were in the field service and also had had the opportunity to supervise him between 1972 and 1975. Strohbar concurred in Monroe's assessment of Weihaupt's abilities, as well as his conclusion that Weihaupt was not qualified to become the director of DMBR due to the requirements of the newly structured position, including the department's new policy-oriented responsibilities. Strohbar made it clear, though, that he believed Monroe should offer Weihaupt a staff position in the Department of Medical-Business Relations or an opportunity to transfer to another position within the AMA.

On February 4, 1982, Monroe informed Weihaupt, then fifty years old, of the new focus for DMBR and his conclusion that Weihaupt could no longer remain as director of the department because he lacked the skills essential for that position. Monroe added that Weihaupt would be retained in his liaison role with local medical societies, without any decrease in salary or benefits. Weihaupt queried Monroe, asking if this change in position was a demotion; Monroe responded that it was. Monroe and Weihaupt then discussed the current state of Weihaupt's health, his right to consider another position within the AMA, and the possibility of retirement under the AMA pension plan. According to Weihaupt, at the conclusion of this discussion Monroe asked him what he thought about the decision to replace him as the DMBR director. Weihaupt responded that "it was evident to [him] that the AMA wanted younger people . . . and considering that [he] had been seriously ill and was over fifty years old and due for an increase, [he] wasn't surprised." Monroe did not respond to this statement. At the close of the meeting, Monroe suggested that Weihaupt speak with other AMA officials regarding his benefits under the AMA pension plan. The district court summarized the discussions between the plaintiff and these officials in its memorandum and order:

"Plaintiff subsequently met with the AMA's vice-president of human resources, Chris Theodore, who produced a list of possible retirement plans for plaintiff to pursue. Plaintiff claims that Theodore suggested that it would be best if plaintiff terminated his employment, although the context indicates that the suggestion related to plaintiff's health due to cancer. Apparently Strohbar had the same recommendation for plaintiff. Plaintiff again met with Monroe to determine whether he was being offered a new job or whether he was being asked to leave. Monroe reportedly stated that both were up for consideration. Plaintiff does not state that he then asked for a final word on whether he was being fired. Instead, plaintiff continued to consider his options and later met with AMA general counsel, Bernie Hirsch. At his deposition Hirsch testified that he informed plaintiff that there were particularly beneficial provisions for 'involuntary' retirement and termination for employees when there is a significant change of duties. Plaintiff claims that Hirsch informed him that he had no choice but to leave the AMA, but plaintiff also testified that Hirsch thought he was going to die soon, and again the context indicates that Hirsch meant that plaintiff had no choice because of his health. In fact, in August 1985 plaintiff filed an affidavit with the Social Security Administration claiming that he was totally disabled as of March 1982. There was never any reference by any AMA official about plaintiff's age.

Prior to his departure from the AMA, plaintiff produced a list of severance requests. Drawing from those requests the AMA agreed to continue plaintiff's health insurance until November 1982, to provide a stipend to cover two additional years of insurance coverage, to pay plaintiff six months' severance pay, to pay a lump sum retirement amount approaching $250,000, and to provide letters of recommendation and assistance in establishing a new business venture. Upon leaving the AMA plaintiff submitted a written resignation which concluded: 'I have decided to exercise my options within the AMA's Employee Benefit Plan and to retire from service.' Although plaintiff testified that Monroe told him it would be better for him to resign rather than be discharged, and threatened to withhold his severance requests unless he did so, plaintiff's severance requests specifically recognized that he had the option to remain with the AMA."

Weihaupt v. American Medical Association, 1988 U.S. Dist. Lexis 1835, No. 83 C 7917, slip op. at 5-6 (N.D. Ill. February 29, 1988).

In August 1982, the AMA hired Susan Kuntz, age thirty-six, for the position of Director of the Department of Health Care Coalitions, which had absorbed the Department of Medical-Business Relations. Kuntz's responsibilities in her previous employment included the researching of health care issues, editing a monthly newsletter, analyzing proposed legislation, drafting testimony, and preparing written responses to proposed federal rules.

On November 4, 1983, Weihaupt filed this age discrimination action in the United States District Court for the Northern District of Illinois, alleging that the AMA had violated the ADEA in demoting and/or discharging him from his position as DMBR director because of his age. After extensive discovery the AMA moved for summary judgment arguing that no reasonable jury could find that the AMA discharged or demoted Weihaupt because of his age based on the evidence presented. The district court granted the AMA's motion on February 29, 1988, ruling that Weihaupt had failed to offer evidence sufficient to establish that he was directly or constructively discharged or that his alleged demotion was based on his age. In addition, the AMA submitted a bill of costs to recover its expenses in responding to Weihaupt's claim. Weihaupt objected to the AMA's bill of costs due to its lack of specificity. The district court agreed with the AMA's position regarding costs and awarded them $3,055.30 for deposition costs and $3,086.60 for photocopying expenses.

On appeal, Weihaupt argues that: (1) the district court erred in granting summary judgment in favor of the AMA because the evidence created genuine issues of material fact regarding whether the AMA had discharged him and whether the AMA's proffered reasons for demoting and/or discharging him were pretexts for age discrimination; and (2) the district court erred in awarding costs to the AMA because the AMA filled to specifically itemize the ...


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