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BERNALES v. COOK COUNTY

April 16, 2001

RICARDO BERNALES, PLAINTIFF,
V.
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 judgment.

BACKGROUND FACTS

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 characteristics.
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 position.
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. ¶ 10.

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 School.
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:

During his long and loyal tenure at Cook County Hospital, [Plaintiff] has provided quality care for our patients, and since the retirement of Dr. Lim in May, he has been the Acting Chief of the division and has had sole responsibility for the patient care and resident education program in the Division of Allergy/Immunology. Id.

Dr. Ziring's recommendation to promote Plaintiff was approved. Id.

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. ...

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