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Weisbrot v. Medical College of Wisconsin

March 28, 1996






Appeal from the United States District Court for the Eastern District of Wisconsin. No. 93 C 1096--Robert W. Warren, Judge.

Before CUDAHY, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.



Sabina Weisbrot filed this suit under Title VII and the Age Discrimination in Employment Act ("ADEA") after her employer, the Medical College of Wisconsin ("MCW"), terminated her employment as a Research Technician. The district court granted MCW's motion for summary judgment on both claims. Ms. Weisbrot now appeals the entry of summary judgment on her ADEA claim. For the reasons set forth in the following opinion, we affirm the judgment of the district court.


Sabina Weisbrot, a sixty-five year-old Polish immigrant, worked at MCW from June 1972 until her discharge in February 1992. Ms. Weisbrot was hired as a Laboratory Technician by Dr. Ronald Kalkhoff, then Chief of the Endocrine/Metabolic Division of the MCW Department of Medicine. She was reclassified as a Research Technician in 1983 and continued to work for Dr. Kalkhoff until his death in December 1990. Dr. Kalkhoff directed the TOPS Obesity and Metabolic Research Program at MCW, which was funded entirely by a grant from the TOPS Club, Inc., an outside funding agency. *fn1 His research was conducted separately from the remainder of the Endocrine/Metabolic Division in an entity informally denominated the "Kalkhoff Division."

Upon Dr. Kalkhoff's death in December 1990, Dr. Ahmed Kissebah was appointed Interim Director of the TOPS program at MCW. At that time, there were three employees in the "Kalkhoff Division": Jacqueline Marks (Laboratory Supervisor--age 53); Ann Schwoerer (Administrative Secretary--age 35); and Sabina Weisbrot (Research Technician--age 64). The TOPS grant funded the salaries and fringe benefits for these three employees. *fn2

Soon after Dr. Kalkhoff's death in 1990, Dr. Kissebah learned that funding for the TOPS program at MCW would be discontinued. Although Dr. Kissebah was unsuccessful in his attempt to secure additional funding, TOPS did agree to make one final payment to the program that would fund it through June 30, 1992--the end of MCW's fiscal year. The TOPS Club, Inc. requested that Dr. Kissebah use his discretion in determining the best use of the final payment in light of the fact that the program was to be phased out. Dr. Kissebah determined that there was some research value in completing certain laboratory work begun by Dr. Kalkhoff. Accordingly, on October 24, 1991, Dr. Kissebah submitted a budget for the final TOPS payment that funded Ms. Weisbrot's salary through February 1992 and the salaries of Ms. Marks and Ms. Schwoerer through November 1991. The budget called for any remaining TOPS funds to be preserved and awarded to other faculty investigators interested in pursuing obesity research.

When the TOPS program was eliminated, Dr. Kissebah arranged for Ms. Marks to occupy an equivalent Laboratory Supervisor position at MCW. She did not file a formal application to transfer to this new position. Ms. Schwoerer, the administrative secretary, declined a similar offer from Dr. Kissebah because she preferred to collect unemployment compensation. Ms. Weisbrot was not offered an equivalent position and, on January 24, 1992, MCW notified Ms. Weisbrot that her position would be terminated at the end of February.

From September 5, 1991, to February 27, 1992, the MCW "Job Opportunities Bulletin" listed four Research Technician positions and seven Senior Research Technician positions as vacant. Each of these positions would have been considered either an inter-section transfer or a promotion for Ms. Weisbrot. Accordingly, MCW policy would have required her to apply formally for these positions. With no reason to suspect that her position was being eliminated, however, Ms. Weisbrot did not apply for continued employment at MCW until after receiving her termination notice on January 24, 1991.

On February 19, 1992, Ms. Weisbrot submitted a written application for employment as a Senior Research Technician at MCW. MCW considers applications to be "active" for sixty days, and the personnel office forwarded her application to the two departments (Pharmacology and Physiology) that listed openings for a Senior Research Technician during that period. Neither department offered a position to Ms. Weisbrot. MCW records indicate that neither of these positions was filled until late 1993.

On March 3, 1992, a representative of the MCW personnel office contacted Ms. Weisbrot by telephone. According to the affidavit of Dianne Golden, then Assistant Director of Employment at MCW, she contacted Ms. Weisbrot in an effort to improve her application. Ms. Weisbrot's application lacked any detailed information as to the kinds of tasks that she had performed at MCW during her employment and, again according to Ms. Golden, candidates who included detailed information on their prior experience were more likely to find employment at MCW than candidates who provided minimal information on prior work experience. Ms. Golden expressed these concerns to Ms. Weisbrot first during their telephone conversation and later in a letter dated the same day:

As we discussed during our telephone conversation today, we have received your application for employment. We would be happy to consider you for other MCW positions for which you qualify. However, your application is not complete. That is, it does not list specific duties performed in your last position. I'm returning your application to you. On the back of the application, please list the primary duties performed during your ...

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