(7th Cir. 1996). The following examples could be introduced as
evidence of pretext: "(1) the proffered reasons are factually
baseless; (2) the proffered reasons were not the actual
motivation for the [adverse decision]; or (3) the proffered
reasons were insufficient to motivate the [adverse decision]."
Wolf v. Buss, Inc., 77 F.3d 914, 919 (7th Cir. 1996).
Title VII prohibits retaliation against an employee who has
engaged in activity protected by the Act.
42 U.S.C. § 2000e-3(a). Section 2000e-3(a) states that "it shall be an
unlawful employment practice for an employer to discriminate
against any of its employees . . . because [they have] 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. § 2000e3(a).
A retaliation claim is subject to the same McDonnell Douglas
burdenshifting analysis. Alexander v. Gerhardt Enter., Inc.,
40 F.3d 187, 195 (7th Cir. 1994.) A plaintiff, however, must
first establish a prima facie case of retaliation. To establish
a prima facie case of retaliation, a plaintiff must show that
(1) he engaged in a statutorily protected activity; (2) he
suffered an adverse employment action; and (3) there is a causal
link between the protected activity and the adverse action.
Jones v. General Electric Info. Serv., 3 F. Supp.2d 910, 918
(N.D.Ill. 1998). In order to establish a causal link, a
plaintiff must demonstrate that the defendant "would not have
take the adverse action `but for' the protected expression."
Adusumilli v. City of Chicago, 164 F.3d 353, 363 (7th Cir.
A causal link may be established by showing that a plaintiffs
discharge took place on the "heels of [the] protected activity"
Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir.
1994) because suspicious timing constitutes circumstantial, or
indirect, evidence to support a claim of discrimination. Troupe
v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).
Thus, a short time span between two events can be enough for
plaintiff to create a triable issue as to the required causal
link. See Johnson v. City of Fort Wayne, Ind, 91 F.3d 922, 939
(7th Cir. 1996) (finding that a reasonable inference on the
causation issue arises when the adverse job action came two
weeks after the filing of the EEOC complaint.) See also
Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398 (7th
Cir. 1999) (plaintiff could not establish a causal connection
between the occurrence of the protected activity and adverse
action because of a four month time lapse). Therefore, if there
is a substantial lapse of time between a plaintiffs protected
activity and a defendant's adverse action, the lapse of time is
"counter-evidence of any causal connection." Johnson v. Univ.
of Wis. — Eau Claire, 70 F.3d 469, 480 (7th Cir. 1995).
In Count I, Plaintiff alleges that he was discriminated
against on the basis of his national origin when Defendant
discharged him from his position as senior physician in 1995.2d
Am. Complt. Defendant, on the other hand, asserts that Plaintiff
is unable to produce either direct or indirect evidence that
Defendant discriminated against him based on his national
origin. Def.'s Reply at 1.
Plaintiff first argues that direct evidence of discrimination
does in fact exist because Dr. Ziring made the
following statement to Plaintiff: "[h]ave you had your tacos
today." Pl.'s Resp. at 9. In order for isolated comments to
constitute direct evidence of discrimination, they must be
"`contemporaneous with the discharge or causally related to the
discharged decision making process.'" Kennedy v. Schoenberg,
Fisher & Newman, Ltd., 140 F.3d 716, 723 (7th Cir. 1998)
(internal citations omitted). Moreover, "[s]tray remarks in the
workplace . . . cannot justify requiring the employer to prove
that its . . . decisions were based on legitimate criteria."
Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct.
1775, 104 L.Ed.2d 268.
In reviewing the record, this court finds that the above
referenced statement was made on only one occasion, and while
Plaintiff did not specify when Dr. Ziring made the comment, it
was sometime after Dr. Ziring began working at Cook County
Hospital in June, 1993, when Plaintiff and Dr. Ziring were on
friendly terms. Def.'s Reply 3; Def.'s Local Rule 56.1(a)(3) ¶
38. The court finds that Dr. Ziring's isolated comment to
Plaintiff is not discriminatory on its face and that Dr.
Ziring's statement was neither contemporaneously nor causally
related to the decision-making process regarding the elimination
of Plaintiffs position which commenced no earlier than summer,
1995. Therefore, the court finds that this statement cannot be
viewed as constituting direct evidence of discrimination.
Plaintiff next argues that he can establish a prima facie case
of discrimination using a McDonnell Douglas analysis. Pl.'s
Reply at 9-10. Under the McDonnell Douglas framework, a
plaintiff establishes a prima facie case of employment
discrimination by showing by a preponderance of the evidence
that: (1) he is a member of a protected class; (2) he was
qualified for the job in question or was meeting his employer's
legitimate performance expectations; (3) he suffered an adverse
employment action; and (4) the employer treated similarly
situated employees outside the protected class more favorably.
Foster, 168 F.3d at 1035; see Bragg, 164 F.3d 373. Plaintiff
asserts that he has met all four factors under McDonnell
Douglas and has, therefore, established indirect evidence of
Defendant, on the other hand, argues that Plaintiff has failed
to establish a prima facie case under McDonnell Douglas
because he cannot establish that others outside his protected
class were treated more favorably under similar circumstances.
Def.'s Mem. at 9. Defendant cites record evidence indicating
that Dr. Ziring recommended the elimination of two Caucasian
physicians' equivalent positions, Dr. Odell and Dr. Gordon, at
the same time and under the same circumstances that he
recommended the elimination of Plaintiffs position. Def.'s Reply
at 3. Plaintiff, however, contends, that Dr. Odell and Dr.
Gordon were not treated the same as Plaintiff because Dr. Odell
resigned (after her position had been recommended for
elimination) and Dr. Gordon filed a lawsuit against Defendant.
Pl.'s Mem. at 10; Def.'s Local Rule 56.1(a)(3) St. ¶ 18.
Based on the record, the court finds that Dr. Ziring did in
fact treat Dr. Odell and Dr. Gordon in the same manner as he
treated Plaintiff because he recommended the elimination of
their positions at the same time as Plaintiffs in order to meet
the required eight percent budget reduction mandate. The fact
that Dr. Odell resigned after her position had been recommended
for elimination and Dr. Gordon instituted a law suit against
Defendant is immaterial. The court holds that Plaintiff cannot
establish a prima facie case of discrimination for Count I
because Dr. Ziring did not treat similarly situated
physicians outside the protected class more favorably than
In addition, Defendant's decision to recommend the elimination
of these positions was based on a legitimate, nondiscriminatory
reason. Vakharia, 190 F.3d at 806. For instance, Plaintiffs
position as well as Dr. Odell and Dr. Gordon's positions were
recommended for elimination in order to allow the department to
operate within its budgetary constraints while continuing to
provide comprehensive care to patients. Def.'s Local
Rule 56.1(a)(3) St. ¶ 19. Dr. Ziring was faced with having to make a
difficult choice between eliminating programs designed to meet
the needs of indigent children who had no available heath care
and eliminating the positions of three senior physicians. Id.
at 7, 16, 17, 19. Defendant used its business judgment and
determined that the functions of the senior physicians could be
Alternatively, even arguendo, if the court could find that
Plaintiff can establish a prima facie case of discrimination,
Plaintiff would still need to prove that Defendant's proffered
reason for eliminating his position was a pretext for
discrimination. Vakharia, 190 F.3d at 806-07. Plaintiff offers
two arguments to this end.*fn1 Plaintiff argues that
Defendant's explanation for its budget reduction is a pretext
for discrimination because Dr. Ziring did not recommend the
elimination of Dr. Yu's position when he recommended the
elimination of his position. Pl.'s Mem. at 10-11. Plaintiff
asserts that Defendant's recommendation constitutes evidence of
discrimination because Dr. Yu is not board certified in
pediatrics and has less experience than Plaintiff. Id.
The record indicates that even though Dr. Yu is not board
certified in pediatrics, that he is board certified in both
allergy/immunology and internal medicine. Resp. to Pl.'s Local
Rule 56 1(b)(3) St. ¶ 40. Dr. Yu is also certified to treat
children with allergic conditions. Id. The evidence further
shows, that in the past, when there has been a medical need, the
Department of Pediatrics has employed internists who were board
certified in allergy/immunology. Id. In fact, Plaintiff, who
is not board certified in internal medicine, testified that he
cared for adults with allergic conditions for many years at Cook
County Hospital because there was no adult allergist. Id.
Dr. Yu was also rated as "superior" on his employee
evaluation. Resp. to Pl.'s Local Rule 56.1(b)(3) St. ¶ 31.
Furthermore, on his evaluation, it was noted that Dr. Yu was
extremely hardworking, was well liked by his patients, and had
handled most of the clinical responsibilities in the division.
Id. The record shows, however, that Plaintiff had frequent
meetings with Dr. Ziring and Dr. Moy (his supervisor) regarding
his performance. Resp. to Pl.'s Local Rule 56.1(b)(3) St. ¶ 29.
Dr. Ziring testified about Plaintiffs performance as follows:
A. Dr. Odell resigned between the time that Dr.
Ziring recommended the
elimination of her position in August, 1995 and the
time that Dr. Ziring learned that his
recommendation had been accepted by the Cook County
Board of Commissioners in December, 1995. I'd like
to answer the questions in two parts. The first
part is that Dr. Moy and I had frequent meetings
with [Plaintiff] to inform him that he was not
performing his duties at the required level of
competence. We, on the other hand, had not reached
the point where we believed that his position, as
an employee, was one in which we were prepared to
refer it for peer review.
We counseled him repeatedly on his performance, his
behavior, the patients, and his lack of
responsiveness to our requests for his performing
various duties that were part of the departmental
mission, which he often did not carry out. We were
having increasing concern about [Plaintiffs] work
However, if your question relates specifically to
maintaining his position as an employee, that process
requires a referral to peer review as a medical staff
procedure, and that process we have not initiated.
Q. [Plaintiff] was evaluated every year by Dr. Moy;
is that correct?
Q. Did [Plaintiff] ever receive an evaluation from
Dr. Moy that indicated that he was performing his
duties below the level of competence to maintain
A. [Plaintiffs] duties were many and diverse. His
duties included seeing patients in the clinic,
teaching residents and medical students, carrying
out research mission of the organization, and
attending to administrative functions as I out
lined earlier in my remarks.
In some areas, [Plaintiff] did well He was very
attentive to the needs of his patients. He was very
devoted especially to a certain number of pa tients
that he had a long-term relationship with. His
teaching function we felt needed improvement because
he repeatedly taught residents and medical students
based on his personal anecdotal experience, and not
sufficiently backed up by materials based in the
accepted medical literature.
He did not comply with a number of requests for
working in [outlying] clinics, which I personally
asked him to do. So there were areas where he
performed at a reasonable level within his job
description and in areas that did not perform well.
Furthermore, in April 1995, it was noted on Plaintiffs employee
evaluation that he needed better organizational skills and
tended to practice medicine that was not supported by medical
literature. Resp. to Pl.'s Local Rule 56.1(b)(3) St. ¶ 29.