was treating a patient, but rather, that he refused to return the phone calls of emergency room personnel who wished to schedule him for the on-call roster. (Id.)
If this explanation is accurate, then Drs. Alexander and Friedman are not similarly situated. Dr. Friedman allegedly refused to be placed on the on-call roster. Thus, unlike Dr. Alexander's refusal to assist a specific patient, Dr. Friedman's misconduct would not have endangered a patient's welfare. Rush cannot be considered to have acted unreasonably or arbitrarily because it differentiated between misconduct that endangers a person and misconduct which does not. See Johnson v. Artim Transp. Sys. Inc., 826 F.2d 538, 544 (7th Cir. 1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1998, 100 L. Ed. 2d 229 (1988). As such, Dr. Alexander would not be similarly situated to Dr. Friedman.
Rush, however, has failed to show the court that no genuine issue exists with respect to the facts Rush has averred. Rush attributed its assertion that Dr. Friedman only refused to be placed on the on-call roster, rather than refused a specific request to go to the hospital, to Dr. Chervony. (Def. Reply Br. at 12 n.6 (citing Dep. of Chervony at 26-27)) Yet Dr. Chervony testified that he did "not remember that [Dr. Friedman] refused to come to the emergency room." (Dep. of Chervony at 26-27) Rush cannot demonstrate the nonexistence of a genuine issue of material fact by simply noting that one person does not remember it being to the contrary. Smith v. Joliet, 965 F.2d 235, 238 (7th Cir. 1992) (plaintiff did not establish a genuine issue of material fact as to whether the police department received excessive force complaints by merely presenting the deposition of an officer who did not remember the absence of complaints); Unterreiner v. Volkswagen of Am., Inc., 8 F.3d 1206, 1210 (7th Cir. 1993) (party does not present a genuine issue of material fact by submitting affidavits which purport to establish a given fact if the affiant admits that his memory is faulty). Thus, Rush has failed to show that Dr. Friedman is not similarly situated to plaintiff.
(4) Dr. Abrams
Dr. Alexander also alleges he is similarly situated to Dr. Bernard Abrams. In 1986, Dr. Abrams failed to respond to a call when he was the on-call surgeon. (Pl.'s Resp. Mem. at 3; Ex. I to Pl.'s 12(n) Stmt.) As a result, the hospital suspended his staff privileges. (Id.) Five days later, when Dr. Abrams noted that the hospital may have violated Dr. Abrams' due process rights by suspending him without notice, Rush reinstated his privileges. (Id.) Dr. Abrams then discussed the episode with Rush; his version "differed from the allegation" the hospital received. (Id.) The hospital advised Dr. Abrams that a proper response to an emergency room call included a trip to the hospital to at least assess the patient. (Id.) Rush then concluded "no further suspension was deemed necessary." (Id.) Thus, when Dr. Abrams failed to respond to a call, Rush suspended him, and for only five days.
In response, Rush merely contends "if Dr. Alexander seeks to avoid summary judgment by arguing that he was treated differently than Dr. Abrams, it is his burden to offer facts which show that he and Dr. Abrams were similarly situated." (Def.'s Reply Br. at 10 (citing St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2747 (1993))) Yet Dr. Alexander has produced uncontroverted evidence from the hospital describing Dr. Abrams' misconduct as a "failure to respond." (Pl.'s 12(n) Stmt., Ex. I) Interestingly enough, the hospital termed Dr. Alexander's misconduct failure to "appropriately" respond. (Pl.'s 12(n) Stmt., Ex. U) The court cannot conclude that "failure to respond" implicates different misconduct from that of failure to "appropriately" respond. Moreover, with respect to the aforementioned two incidents, Rush presented evidence and explanation as to how each doctor's "failure to respond" was distinguishable from Dr. Alexander's "failure to respond." (Def.'s Reply Br. at 12 (arguing that failure to respond differs if it involves negligence as opposed to intentional wrongdoing)) With respect to Dr. Abrams, however, Rush has neglected to provide any explanation for distinguishing the two.
On a motion for summary judgment, the moving party has the initial burden of demonstrating that no genuine issue exists as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Here, Rush has failed to meet this burden. The precise character of Dr. Abrams' "failure to respond" is a material fact as his "failure to respond" may be comparable to that of Dr. Alexander; thus, this incident could demonstrate that Rush treated a similarly situated caucasian doctor differently than it treated an Egyptian doctor of the Muslim faith.
In summary, a genuine issue of material fact exists as to whether Drs. Abrams and Friedman were similarly situated to Dr. Alexander. No genuine issue exists with respect to Drs. Britt and Taxman, and accordingly, the hospital's motion is granted to this extent. See FED. R. CIV. P. 56(d). At trial, Dr. Alexander may not attempt to show a prima facie case by presenting evidence regarding the infractions of Drs. Britt and Taxman.
For the foregoing reasons, the court grants Rush's motion for summary judgment with respect to the similarity of Dr. Alexander to Drs. Britt and Friedman and with respect to the honesty of Rush's belief in Dr. Alexander's misconduct. The issue that remains for trial is the comparability of Dr. Alexander's misconduct to that of Drs. Abrams and Taxman and the resulting sanctions imposed by Rush.
Date: MAY 06 1994
JAMES H. ALESIA
United States District Judge