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BERNALES v. COOK COUNTY
April 16, 2001
RICARDO BERNALES, PLAINTIFF,
COOK COUNTY, DEFENDANT.
The opinion of the court was delivered by: Levin, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Ricardo Bernales ("Plaintiff") seeks recovery in a
Second Amended Complaint against Defendant Cook County
("Defendant") for national origin discrimination and retaliation
in violation of Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et seq. Pending before the court is Defendant's motion
for summary judgment pursuant to Fed.R.Civ.P.56. For the reasons
set forth below, the court grants Defendant's motion for summary
Plaintiff, who is a physician, began working in the
Allergy/Immunology Division of the Department of Pediatrics at
Cook County Hospital in August, 1978. Def.'s Local
Rule 56.1(a)(3) St. ¶ 1. On January 26, 1993, Plaintiff sent a letter
to Dr. Agnes Lattimer, the Medical Director of Cook County
Hospital, expressing an interest in the chairman position of the
Division of Pediatric Allergy/Immunology. Id. ¶ 2. Plaintiff
understood that the position would become vacant on May 1, 1993,
when the current chairman, Dr. Lim, planned on retiring. Id.
On March 31, 1993, Plaintiff applied for the chairman position
when he sent a letter accompanied by his curriculum vitae to Dr.
Rosita Pildes, the Interim Chairman of the Department of
Pediatrics. Id. ¶ 3. Dr. James Moy also applied for the
chairman position. Id. 4.
After Plaintiff applied for the position, Dr. Pildes had a
conversation with Dr. Philip Ziring, who had been hired as the
Chairman of the Department of Pediatrics, but who did not begin
working at Cook County Hospital until June, 1993. Id. ¶ 5. Dr.
Pildes informed Dr. Ziring that Plaintiff and Dr. Moy were the
only two applicants for the chairman position. Id. Dr. Ziring
indicated that he was not ready to make a decision regarding the
chairman position and asked that Dr. Pildes make no decision on
the matter. Id. Dr. Pildes advised Plaintiff of the situation
and told him that he could discuss the chairman position with
Dr. Ziring after he began working at Cook County Hospital. Id.
Dr. Pildes retired from Cook County Hospital on May 29, 1993.
Id. ¶ 6. Before leaving her position, Dr. Pildes discussed
both Plaintiffs and Dr. Moy's applications. Id. Dr. Pildes
told Dr. Ziring that Plaintiff was devoted to patient care, but
that during the fifteen years she had worked with him, he had
not demonstrated any academic interests. Id Dr. Pildes also
told Dr. Ziring that Plaintiff had not received any research
grants, participated in any teaching initiatives or conducted
any outreach activities. Id. Dr. Pildes told Dr. Ziring that
Dr. Moy was "well qualified" for the position. Id.
Dr. Ziring identified four missions of the hospital and
department. Id. ¶ 7. First, department doctors were
responsible for providing patient care on both an inpatient and
outpatient basis. Id. Second, doctors in the department were
responsible for the educational programs needed to train
residents, fellows, and medical students. Id. Third,
department doctors were responsible for conducting research and
obtaining research grant funds, particularly in those areas of
interest to under served children. Id. Fourth, department
doctors were responsible for utilizing county resources while at
the same time taking steps to develop initiatives for new
programs and services through outreach activities. Id.
After Dr. Ziring began working at Cook County Hospital, he met
with and interviewed Plaintiff for the chairman position by
engaging in discussions with him about his qualifications, his
interests, the future of the department, and other interests
impacting on the department. Id. 8. Dr. Ziring also discussed
Plaintiffs leadership abilities and other qualifications for the
position with other department doctors who had worked
extensively with Plaintiff, including Dr. Pildes, Dr. Zuba, Dr.
Rao, and Dr. Lim. Id. Dr. Ziring observed Plaintiffs work and
reviewed his personnel file. Id. Moreover, Dr. Moy, the only
other candidate for the position, who did not work at Cook
County Hospital (i.e., he worked at Rush-Presbyterian St. Luke's
Medical Center) was also considered for the position. However,
Dr. Moy was subjected to a more structured interview process.
Id. ¶ 9.
In considering Plaintiffs and Dr. Moy's qualifications for the
position, Dr. Ziring determined that the successful candidate
should possess the following characteristics:
The position of chief of division, in the Department
of Pediatrics, requires a variety of important
The head of the division requires them to be an
excellent clinician with expertise in a particular
area that the division is responsible for. It
requires them to be an excellent educator, to have
experience and qualifications in research, and to be
aware of the administrative requirements in the
I guess I would summarize by saying that the position
of division chief is a leadership position. It's not
one that has primary responsibility in any one of
those particular areas, such as a major focus on
patient care or a major focus on education. But it
has to encompass all of the areas of concern of the
division, and so it's a leadership position. Id. ¶
Dr. Ziring further testified that:
. . . this was a leadership position in the
department, this was not a position looking for a
doctor to provide more hands-on clinical services to
children. It was a person to develop new programs,
new educational programs, new services, grant
programs, new educational programs, and new relations
with Rush which were evolving at that time. Id.
On August 16, 1993, Dr. Ziring recommended that Dr. Moy be
appointed to the position of department chairman, which would be
effective on September 13, 1993. Id. ¶ 11. In his
recommendation, Dr. Ziring stated, in pertinent part, that:
Doctor Moy is certified by the American Board of
Pediatrics and American Board of Allergy/Immunology,
and has been in the Department of
Allergy/Immunology/Microbiology at Rush-Presbyterian
St. Luke's Medical Center for the last six years. He
is highly regarded as a clinician and teacher and is
currently funded by the NIH in the study of
eosinophil function. Dr. Moy will be a full-time
employee of the Department of Pediatrics at Cook
County Hospital while he maintains his faculty
appointment and research laboratory at Rush Medical
Doctor Moy is committed to expanding the availability
of allergy/immunology services to other departments
at Cook County Hospital and to building new asthma
prevention and treatment services in the community.
He promises to be an important new addition to the
medical staff of Cook County Hospital. Id
Dr. Ziring determined that Dr. Moy's qualifications exceeded
those of Plaintiff, and Dr. Moy was appointed Chairman of the
Allergy/Immunology Division in September, 1993. Id. 12. Dr.
Ziring discussed his reasons for selecting Dr. Moy for the
chairman position with Plaintiff. Id ¶ 13. At that time,
Plaintiff expressed his concern that he had not been promoted at
Cook County Hospital after many years of service and felt that
his salary was insufficient. Id. Dr. Ziring told Plaintiff
that he would work hard to promote him to a position for which
he qualified. Id.
On the same day that Dr. Ziring recommended Dr. Moy for the
chairman position, he recommended that Plaintiff be promoted to
the position of senior physician, which would be effective on
September 13, 1993. Id. ¶ 14. In his recommendation, Dr.
Ziring stated, in pertinent part, that:
Dr. Ziring's recommendation to promote Plaintiff was approved.
On February 28, 1994, Plaintiff filed a charge of
discrimination with the Illinois Department of Human Rights and
the U.S. Equal Employment Opportunity Commission ("EEOC")
(Charge No. 1994CA2233). Id. ¶ 15. Plaintiff alleged that he
was discriminated against on the basis of his national origin
(Peruvian) when he was not promoted to the chairman position.
Id. Plaintiff, subsequently, amended his Charge, claiming that
he was also discriminated when his performance was called into
question by his supervisors and when he received negative
comments on his performance evaluation. Id.
In the summer of 1995, the department chairmen at Cook County
Hospital were told that the Cook County Board was going to
provide less money in fiscal year 1996 for operating Cook County
Hospital. Id. ¶ 16. The department chairmen were instructed to
cut their operating budgets by eight percent. Id. They were
told that they could make recommendations on how to implement
the eight percent reduction for their departments or
alternatively, if a chairman did not make a recommendation, the
departmental budget reductions would be made without their input
from that department. Id.
Dr. Ziring reviewed the Department of Pediatrics budget to
determine how he would make the mandatory budget reductions
while having a minimal impact on patient care. Id. at ¶ 17.
Dr. Ziring recommended the elimination of five positions, three
of which were full-time physicians. Id. The positions that Dr.
Ziring sought to eliminate were:
1. the most senior administrative post in the
department, then held by an employee named Susan
Zinner, who is Caucasian;
2. the position of Senior Attending Physician,
Ambulatory Division, then held by Dr. Christine
Odell, who is Caucasian;
3. the position of Senior Attending Physician,
Division of Pediatric Cardiology, then held by Dr.
David Gordon, who is Caucasian;
4. the position of Senior Attending Physician,
Division of Allergy/Immunology, then held by Dr.