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May 15, 2003


The opinion of the court was delivered by: Harry D. Leinenweber, Judge, United States District Court.


Plaintiff Louis A. Papp ("Papp") brings this complaint against Midwest Physician Group Ltd. ("MPG") alleging disparate treatment in violation of the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. § 621, et seq. Presently before the Court is MPG's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Court grants the motion and dismisses this action in its entirety.


This action arises out of a reduction in force ("RIF") that MPG, a not-for-profit corporation that provides medical services at clinics in and around Chicago, implemented in the spring of 2000. Up until that time, five physicians had worked full-time in MPG's pediatrics department, Papp among them. As part of the RIF, MPG elected not to renew Papp's full-time employment contract which was set to expire on June 30, 2000, and instead offered him a half-time "hospitalist" position. Papp refused MPG's offer to convert his employment to half-time, and was therefore terminated as of June 30, 2000. Papp was 50 years of age at that time. MPG claims that its decision not to renew Papp's contract and to instead offer him a half-time position was motivated by its "need to `rightsize' MPG's pediatrics department by reducing the number of physicians employed in that department in order to cut costs and alleviate the department's ongoing financial difficulties." (Def.'s Mem. at 3.) Papp, on the other hand, contends that the decision was the result of age-based animus.

MPG's pediatrics department began to experience financial difficulties and run deficits in 1999 (and perhaps as early as 1998). To help meet this problem, in June 1999 Dr. Rita Mathewson, chairperson of the pediatrics department, considered downsizing the department from five full-time physicians to tour by June 30, 2000, the end of the next fiscal year. (Pl.'s Resp. to Def.'s Statement of Facts ¶ 64.) In a further effort to alleviate some of the department's financial problems and to avoid the potential necessity of downsizing, in July 1999 Mathewson herself took two pay cuts (the first of which totaled $30,000) and also reduced the salary of each of the other pediatric physicians by the amount of his or her respective malpractice insurance premium. (Id. ¶¶ 65-66.) In addition, in November 1999, one of MPG's outpatient clinics was opened to receive Medicaid patients in an effort to enhance revenue." (Id. ¶ 67.)

Notwithstanding these cost-cutting efforts, by early 2000 the department was running a deficit of more than $600,000. An analysis performed at that time by Deborah Nelson, MPG's chief financial officer, revealed that (i) the volume of patients being seen by the department could not support the number of physicians employed, and (ii) the most significant expenditure within the department was physician compensation. Based on this data, Mathewson and Nelson concluded that the number of full-time physicians needed to be reduced. MPG separately considered eliminating one or two full-time physicians, but these alternatives were each rejected, the former because it would not have fully eliminated the department's deficit, and the latter for tear that the physician staff would find itself overburdened. Ultimately, Nelson and Mathewson concluded that the most financially sound option was to reduce the pediatrics department from five to 3.5 full-time physicians and to increase the department's patient base. (Pl.'s Resp. to Def.'s Statement of Facts ¶¶ 72-73, 83.) In effect, the planned reduction in force meant that one full-time physician position would be eliminated, and one of the formerly full-time physicians would be converted to half-time. Nelson, with Mathewson's endorsement, recommended this course of action to MPG's finance committee and its board of directors, and received final approval from each of those bodies on March 28, 2000.

MPG claims that Mathewson was solely responsible for developing a plan for implementing the reduction in force by selecting the particular physicians that would be downsized. Papp contests whether Mathewson was "solely" responsible for this decision. (Id. ¶¶ 17, 94.) In any event, MPG contends that Mathewson had five physicians from which to choose: herself (age 39); Papp (age 50); Dr. Cathy Macyko (age 40); Dr. Michael Jakubowski (age 43); and Dr. Narges Razavizadeh (age 56). Mathewson considered each to be a fully competent, exemplary physician who was a good educator and who provided quality care to his or her patients. MPG states that Mathewson selected Razavizadeh as the one full-time reduction based on geographic considerations and the department's on-call requirements. MPG further states that Mathewson created a half-time "hospitalist" position which would involve one of the formerly full-time physicians in the department taking responsibility for MPG's inpatient neonatal services, deliveries and teaching duties at St. James Hospital, while the remaining three full-time physicians would be responsible for seeing patients at MPG's three outpatient clinics. According to MPG, utilizing a half-time "hospitalist" in this way along with the three remaining full-time physicians would maximize the department's productivity and revenue.

In selecting a suitable candidate to recommend to MPG's finance committee and board of directors for the hospitalist position, Mathewson considered a number of factors, including qualifications, special certifications, availability and other job responsibilities. Of particular importance to the hospitalist position would be the ability to handle neonatal emergencies as well as to provide other more routine neonatal services. Of the four physicians remaining after Razavizadeh was selected for termination, MPG claims that Papp was the best and most obvious for the hospitalist position, as he was the only physician in the department certified in neonatology. According to MPG, other factors also pointed to Papp as the best candidate, including: (i) the teaching aspects of the hospitalist position, which were thought to mesh well with Papp's expressed enjoyment of teaching in a patient setting; and (ii) the fact that the hospitalist would primarily work morning hours, which fit Papp's scheduling preference.

MPG also notes that Mathewson believed that Papp, while he had been a full-time physician serving in the Olympia Fields outpatient clinic, had been engaging in questionable scheduling practices which involved inserting fictional patient names into Wednesday afternoon appointment slots. Mathewson believed that Papp was "blocking off" his schedule in this way so that he could leave the clinic on Wednesdays before his scheduled time of 5:00 p.m. (See Mathewson Dep. at 79-81.) Mathewson was concerned that this scheduling practice, combined with Papp's general preference for arriving early and leaving early, would compromise his accessibility on Wednesday afternoons (many pediatric patients prefer afternoon, after-school appointments), and could in turn hamper MPG's plan to increase revenue. Mathewson, who had been trained and mentored by Papp while she was a young doctor, found it difficult in her role as chairperson of the pediatrics department to confront Papp about these scheduling irregularities, and she hoped to avoid the issue altogether by offering Papp the inpatient hospitalist position, which primarily required morning hours and would not have involved an outpatient appointment schedule. (See, e.g., Id. at 84-85.)

As previously noted, on March 28, 2000 MPG's finance committee and board of directors approved Nelson and Mathewson's proposal to reduce the pediatrics department to 3.5 full-time physicians. it was then time to deliver the bad news to the affected physicians. Given the pre-existing mentoring and training relationship between Papp and Mathewson and the fact that Mathewson "held . . . and continue[s] to hold [Papp] in very great regard" (Mathewson Dep. at 85), Mathewson found it particularly awkward to communicate to Papp the decision not to renew his full-time contract, so she asked Dave Thomas, MPG's chief executive officer, to do so. On March 30, 2000, Thomas conveyed the non-renewal decision to Papp and offered him the half-time hospitalist position. (Pl.'s Resp. to Def.'s Statement of Facts ¶ 163.) Papp refused to accept MPG's offer, and his employment therefore came to an end on June 30, 2000.


A. Summary Judgment

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). A fact is "material" if it could affect the outcome of the suit under the governing law; a dispute is "genuine" where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Supreme Court has emphasized "that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue [of material fact] for trial." Id. at 249. In performing this task, all factual disputes are resolved, and all reasonable inferences are drawn, in favor of the nonmoving party. Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). However, "[s]elf-serving assertions without factual support in the record will not defeat a motion for summary judgment." Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994).

The burden is initially upon the movant to identify those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," if any, that the moving party believes demonstrate an absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party may not rest upon the mere allegations contained in the nonmoving party's pleading, but rather "must set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). Accordingly, summary judgment is mandatory "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. In such a situation, there can be "`no genuine issue as to any material fact', since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.


Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (a)(1). "[L]iability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). Age must have had "a determinative influence on the outcome" of the employer's decision-making process. Id.

"A plaintiff can establish age discrimination through direct evidence, or more commonly through the burden-shifting method of McDonnell-Douglas v. Green, 411 U.S. 792 (1973)." Beatty v. Wood, 204 F.3d 713, 716 (7th Cir. 2000). "`[D]irect evidence' is defined as evidence which, if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997) (internal quotation marks omitted). Direct evidence consists of "smoking gun remarks indicating intentional discrimination" along the lines of "I fired you because of your age, " Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000), or other "employer statement[s] that reveal[] hostility to older workers," Castleman v. Acme Boot Co., 959 F.2d 1417, 1420 (7th Cir. 1992). Predictably enough, "[d]irect evidence . . . is rarely found." Castleman, 959 F.2d at 1420. "To prove age discrimination using direct evidence, an ADEA plaintiff must establish that he would not have been discharged `but for' his employer's motive to discriminate against him because of his age." Mills v. First Federal Sav. & Loan Ass'n of Belvidere, 83 F.3d 833, 840 (7th Cir. 1996) (internal quotation marks omitted). "[S]tatements which constitute direct evidence of discrimination may come from either an employer or his or her agents." Mills, 83 F.3d at 841.

If an age discrimination plaintiff is relying instead on indirect evidence, he must proceed under the burden-shifting methodology of McDonnell-Douglas. "First, the plaintiff must establish a prima fade case of discrimination," Reeves, 530 U.S. at 142, which entails "show[ing] that: (1) he was over forty years of age; (2) he was meeting his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated, substantially younger employees were treated more favorably. Franzoni v. Hartmarx Corp., 300 F.3d 767, at 771-72 (7th Cir. 2002).

If the plaintiff succeeds in establishing a prima facie case, this creates a rebuttable presumption of discrimination, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's discharge. If the employer is successful, the presumption dissolves, and the burden shifts back to the employee to show that the employer's proffered reasons are a pretext for age discrimination.
Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994). "Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves, 530 U.S. at 143 (internal quotation marks omitted).

For an employer's "reason to be `legitimate,' in the sense of sufficient to rebut a prima facie case, it need not be a good or sympathetic justification for what the employer did; it need only be nondiscriminatory and . . . explain why the challenged action was taken." Mills, 83 F.3d at 845 n. 8. "A pretext, in employment law, is a `phony reason' that the employer offers for engaging in discriminatory conduct (e.g., firing an employee because of her age and claiming it was for some other reason)." Id. at 845 (internal quotation marks omitted). To prove that an employer's proffered explanation for its employment action was merely pretext for age discrimination, a plaintiff must prove by a preponderance of the evidence that the explanation is "unworthy of credence." Reeves, 530 U.S. at 143 (internal quotation marks omitted); see also E.E.O.C. v. Cur Lady of Resurrection Med. Center, 77 F.3d 145, 149 (7th Cir. 1996) ("[P]retext . . . means a lie, specifically a phony reason for some action." (internal quotation marks omitted)); Castleman, 959 F.2d at 1422 (to show pretext, plaintiff must demonstrate that employer "made up" its reason). In attempting to show pretext, "[t]he plaintiff must specifically refute the facts which allegedly support the employer's proffered reasons." Collier v. Budd Co., 66 F.3d 886, 893 (7th Cir. 1995) (internal quotation marks omitted); cf. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 473 (7th Cir. 2002) ("Where an employer offers multiple independently sufficient justifications for an adverse employment action, the plaintiff-employee must cast doubt on each of them."). All that said, it bears special emphasis at the outset that it is not the province of this Court to pass on the wisdom or fairness of an employer's business decisions. Indeed, as the Seventh Circuit has often cautioned, "[n]either the jury nor this Court is empowered to act as a `super-personnel department' and decide if [an employer's employment decision] was unwise or unjustified." Castleman, 959 F.2d at 1422.


A. Direct Evidence

Papp claims to have offered up two pieces of direct evidence of age discrimination: (i) testimony by Mathewson, as an agent of MPG, "that she knew Dr. Papp was retiring at 55, and that she considered that fact in making the decision regarding his employment" (Pl's Mem. at 11); and (ii) testimony by Razavizadeh that Thomas "told [her] during her termination meeting, `Maybe [it's] time you retired.'" (Id.) Papp believes that this evidence "shows that age was a motivating factor in the decision to terminate Dr. Papp's contract." (Id. at 11-12.) Then this evidence is viewed in its proper context, it is clear that Papp is mistaken.

It is worth reproducing here the actual dialogue that took place during Mathewson's deposition that Papp somehow believes constitutes direct evidence of age-based animus:

Q. I believe you testified that you were aware that Dr. Papp was intending to retire at age 55?
A: Yes.

Q: And he freely discussed that in the department?

A: Yes.

Q: So everybody ...

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