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United States District Court, N.D. Illinois

February 3, 2004.

GERALD O. STRAUCH, M.D., Plaintiff,

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


Dr. Gerald O. Strauch ("Strauch") has sued both his former employer the American College of Surgeons ("College") and College's Staff Members' Retirement Plan, charging federal statutory violations and advancing some common law claims, all stemming from the end of his employment relationship with College. College has moved for partial summary judgment pursuant to Fed.R.Civ.P. ("Rule") 56 as to two, and a portion of a third, of Strauch's claims based on the Age Discrimination in Employment Act ("ADEA," 29 U.S.C. § 621-634*fn1: his claims that College (1) violated ADEA, (2) did so wilfully and (3) withheld monies due to him in retaliation for his advancing his ADEA claims (Third Amended Complaint ("TAC") Counts I, II and VI).*fn2 Page 2

Both sides have complied with this District Court's LR 56.1.*fn3 Because Strauch has raised a genuine issue of material fact as to his age discrimination and wilful violation claims, College's motion is denied as to Counts I and II. But because Strauch has acknowledged error as to a portion of the amount sought in his retaliation claim (an error based on mistaken information that College had given him), College's motion is granted as to that portion of Count VI.

  Summary Judgment Standards

  Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, (477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a nonmovant "must produce Page 3 more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.) Ultimately, summary judgment is proper only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the facts viewed in the light most favorable to nonmovant Strauch.


  Strauch began his tenure with College in November 1987 at age 55 (C. St. ¶¶ 5, 7). As Director of College's trauma and assembly departments Strauch was responsible (among other duties) for coordinating College's educational programming and its annual conference (C. St. ¶¶ 8-9).

  In January 2000 Dr. Thomas Russell ("Russell") became College's Executive Director (C, St. ¶ 11). One of Russell's goals was to develop a reorganization plan ("Reorganization") that would examine College's vision and goals and revamp its organization and focus so that College would continue to be a relevant force in the medical community (S. St. ¶ 22; C. St. ¶ 13; S. Resp. ¶ 12).

  Two things occurred shortly after Russell joined College. First he decided that as part of the Reorganization one employee Page 4 would have sole responsibility for all of College's educational programming under a newly created Department of Education and that the job of planning College's annual conference would be allocated to a part-time volunteer (C. St. ¶¶ 23-24). Second, at about the same time (probably in the spring of 2000) Strauch told Russell that he anticipated staying at College only until his 15th anniversary (in November 2002) so that his pension would vest fully*fn4 and he would then retire (S. St. ¶ 63; C. St. ¶ 16).*fn5

  Russell immediately began to look for individuals to fill Page 5 the new positions (C. St. ¶ 29; S, Resp, ¶ 29), Strauch was instrumental in helping to find the prospective replacements and in transitioning his duties to them as they began their employment with College (C. St. ¶¶ 35, 37, 43).

  Once Strauch finished his assistance in those respects, Russell told him that his services were no longer needed (C. St. ¶¶ 39, 50, 51; S. Ex. 5 at ACS 1756; Russell Dep. 193:21-194:19). Strauch then reminded Russell of their earlier conversations about retirement and repeated that he was not ready to retire but wanted to work for College until his 15th anniversary in November 2002 (C. St. ¶ 53; S. Ex. 5 at ACS 1756-57).

  In an effort to resolve that conflict — Strauch had not reached his previously announced retirement date (on either party's version of that announcement), but College had accelerated the Reorganization so that his duties were already being performed by other people — both College and Russell drew up agreements that would have allowed Strauch to continue working (albeit in a new capacity and at much reduced compensation) through his 15th anniversary with College to permit full pension vesting. Although differing materially as to the salary and benefits Strauch would receive in the interim in comparison to his existing compensation, both proposals were structured so that Strauch could eventually collect all his retirement benefits (C. St. ¶¶ 54, 56; Russell Dep. 183:6-184:19). When negotiations Page 6 about those alternate arrangements eventually failed, Strauch's employment with College was terminated on December 31, 2001 (S. St. ¶ 23).

  Application of the Rule 56 Standards

 Count I: Age Discrimination

  Any employer who discharges an employee "because of such individual's age" violates Section 623(a)(1). That is precisely (and once all the smoke and mirrors are cleared away, really quite simply) what Strauch claims College has done: ended his employment with College because of his age.

  Before this opinion delves into the substance of that claim, it is useful to parse the tangle of different methods available for analysis of Strauch's contention that he was the victim of disparate treatment. In that respect Strauch must raise a genuine issue of material fact as to whether College's decision to terminate him was actually motivated by intentional age discrimination (Hazen Paper Co. v. Biggins, 507 U.S. 604, 609-10 (1993)).*fn6 And that may be done by either of two methods — a direct method and an indirect method (Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001)).*fn7 Page 7

  Under the direct method a plaintiff may adduce direct evidence that shows a clear acknowledgment of discriminatory intent by the employer (id.; Volovsek v. Wis. Dep't of Agric., Trade & Consumer Prot., 344 F.3d 680, 689 (7th Cir. 2003)). Alternatively a plaintiff may succeed under the direct method without any direct evidence at all by creating a "convincing mosaic of discrimination" out of circumstantial evidence (Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)).*fn8 Such circumstantial evidence typically includes (although it is not limited to) suspicious timing, ambiguously discriminatory statements, behavior towards other employees, evidence that similarly situated non-protected employees were treated more favorably than the plaintiff or evidence that any nondiscriminatory reasons an employer advances for its decision are merely a pretext for discrimination (id., at 736-37; Volovsek, 344 F.3d at 689-90).

  Instead of the just-described approach, a plaintiff armed only with circumstantial evidence may choose to pursue the Page 8 indirect method (Volovsek, 344 F.3d at 692).*fn9 That follows the familiar burden-shifting roadmap first articulated in McDonnell Douglas Corp., y. Green, 411 U.S. 792 (1973). First such a plaintiff creates a presumption of discrimination by producing a prima facie case of discrimination with a set of situation-specific requirements (Schuster v. Lucent Tech. Inc., 327 F.3d 569, 574 (7th Cir. 2003)). In response defendant must then proffer a legitimate nondiscriminatory reason for its adverse employment action (id.), At that stage plaintiff must prove that the employer was actually motivated by discrimination (id.), most typically by showing that the employer's stated reason is factually untrue or otherwise unworthy of credence (id.)

  It is apparent that there are not really major differences between the direct method through the use of circumstantial evidence and the indirect method route. And regardless of which approach a plaintiff chooses, at the summary judgment stage a court always "look[s] for proof of intentional discrimination based on an examination of all the evidence in the record viewed in the light favorable to the nonmoving party" (EEOC v. Bd. of Regents of Univ. of Wis. Sys., 288 F.3d 296, 302 (7th Cir. 2002)) — In those ultimate terms, this Court sees no reason to Page 9 agonize over which label should be used to analyze Strauch's ADEA claim.

  That conclusion has been reached quite apart from the effect of the Supreme Court's recent clarification in Desert Palace, Inc. v. Costa, 123 S.Ct. 2148, 2155 (2003) that a Title VII plaintiff need not offer direct evidence of discrimination to use a mixed-motive analysis (see, e.g., Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1005 (7th Cir. 2000), characterizing the terms "direct method" and "mixed motives method" as synonymous). Although that holding has largely mooted the already slim differences between the methods,*fn10 the substantial difference in remedies afforded if the mixed motive route is followed would make it undesirable to telescope the analysis where (as here) neither side has expressed a desire to pursue that avenue. Page 10

  Instead this opinion will forgo having to choose between the available methods because of the parties' own imprecision in identifying which method of analysis should be used. Some explanation is in order in that respect.

  For its part, College initially (and incorrectly) assumed that Strauch must use the indirect method because he does not have any direct evidence of discrimination, but it then proceeded to skip right to the third stage of that analysis (C. Mem. 10).*fn11 Strauch, on the other hand, initially referred to the possibility of proceeding under both methods (or at least to the possibility of having some direct evidence, which appears to suggest the use of the direct method) — but then, like College, he eventually proceeded under the indirect method and also immediately skipped to the third stage of analysis without addressing the intervening steps (perhaps because College has not addressed them) (S. Mem. 9-10, 13),

  That strategy of moving directly to the final stage of the indirect method is certainly permissible, and perhaps even Page 11 preferable (EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F.3d 145, 149-50 (7th Cir. 1996) (citations omitted)), and it also indicates that the parties do not really need burden shifting to flesh out their positions. This opinion will accordingly follow the litigants' lead by examining the evidence to see if Strauch has raised a genuine issue of material fact (by either direct or circumstantial evidence) as to whether College's adverse employment action was at least in part motivated by age.

  To that end this Court must first identify that adverse employment action. As College would have it, Strauch's "age discrimination fails because the employment decision at issue does not concern the termination of his employment but rather the timing of his termination" (C. Mem. 2, emphasis in original). So, says College, the facts that Strauch himself had planned to retire and that his employment was at will, so that College had the prerogative to terminate him whenever it saw fit — without notice or cause — precludes any viable ADEA claim on Strauch's part (C. Mem. 10-11; C. R. Mem. 1). And College seeks support in such cases as Colosi v. Electri-Flex Co., 965 F.2d 500, 504 (7th Cir. 1992).

  But it takes only a moment's thought to recognize that the conclusion College seeks to draw is a non sequitur. After all, if the timing of an employee's termination is motivated in whole or in part by the employee's age, that is just as age Page 12 discriminatory (and hence just as actionable) as if the employee's age motivated the act of termination.

  To be sure, College advances as a non-age-discriminatory explanation the contention that after it learned of Strauch's intention to retire it hired new employees to assume his duties, then addressed transitional issues, so that once the new employees took over the duties it would have been fiscally irresponsible for College to continue paying Strauch to do a job that in substance no longer existed (C. Mem. 13; C. St. ¶¶ 50-51; see Leibforth v. Belvidere Nat'l Bank, 337 F.3d 931, 934 (7th Cir. 2003)). But that position ignores the prospect that a factfinder could determine that the entire scenario was conceived and implemented by Dr. Russell (that is, by College) in a manner that was prompted in whole or in part by Dr. Strauch's age.

  In short, the very issue of timing — the entire course of conduct by which Russell caused Strauch to become expendable by the end of 2001 rather than at the later time Russell knew to be Strauch's planned retirement date — was College's "adverse employment action" as defined in such cases as Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000). And if any of College's decisions leading to that result was entirely or partially attributable to Strauch's age, College's ADEA-related motion must be denied.

  With that ultimate question to be kept in mind as the Page 13 evidence is examined, it is time (speaking of timing) to do just that. Unfortunately that requires a good deal of exposition, because Strauch has identified a substantial amount of circumstantial evidence that could lead a factfinder to rule that College (through decisionmaker Russell) acted with a discriminatory motivation.

  To begin with, Strauch points to a slew of what a jury could consider as age-related comments uttered by Russell.*fn12 For example, Russell explained the impetus for the Reorganization as a realization that College had "lost its relevance" and could not "just keep doing thing the old ways." As he put it, the Reorganization would allow College to "set a different course for the future" in order to "go into the 21st century" (S. St. ¶¶ 19, 22).

  In that regard Russell noted that the Reorganization would focus on new skills because (S. St. ¶ 19):

  Just like a young surgeon today, a young surgeon coming out of training needs a plan to be competitive in this century. It's not going to be the same things that served Dr. Strauch or served me well in the last Page 14 century. You need new skills, and that's what we're trying to do with the college.

 Additionally, Russell described College (S. St. ¶ 22) as:

in a process of reorganizing, getting some new people on the bus and getting some people off the bus that had done a really good job, but we were in a different era.
  As n.12 suggests, any consideration of the extent to which such comments may contribute to a potential inference of discrimination calls for a contextualized evaluation of the remarks — a consideration of such factors as the identity of the speaker, the substance of the comments and the causal relationship between the comments and the contested employment action (Huff v. UARCO, Inc., 122 F.3d 374, 385 (7th Cir. 1997); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998)). What follows looks at those factors.

  As for the first factor, little need be said. Because Russell was solely responsible for the decision to terminate Strauch and Jonasson, as well as the decision to either terminate or "encourage the retirement" of Lynch,*fn13 the fact that Russell made all those statements increases their probative force (S. St. ¶¶ 26-28).

  What of the comments' substance? While none is openly Page 15 hostile towards older workers, many include "code words" for age that could potentially reflect ageist sentiments such as references to the future, different eras and new skills (Bd. of Regents, 288 F.3d at 303). And just because some of the comments are only ambiguously age-oriented does not of course mean they must necessarily be viewed as nonprobative of discrimination. Instead that fact further supports the conclusion that summary judgment is unwarranted because "the task of disambiguating ambiguous utterances is for trial, not for summary judgment" (Shager, 913 F.2d at 402).

  Finally, a jury could reasonably infer a causal relationship between Russell's comments and his decisions about Strauch's job. While comments not directly related to an employment decision that is at issue generally have less evidentiary value than comments intimately associated with the decision, even seemingly unrelated "stray remarks" could contribute to a finding of liability (Schuster, 327 F.3d at 576; Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 922-23 (8th Cir. 2000); Ercegovich, 154 F.3d at 355). One example of that possibility is Russell's repetition of "21st century" language in both his general comments describing the qualities he was looking for in the person who would fill the new education position as well as when expressing his doubts that Strauch specifically had those skills. That similarity could allow a jury to infer that if Russell's Page 16 broad comments were tinged with ageism, perhaps the decisions adverse to Strauch were also tainted by discriminatory intent (S. St. ¶¶ 33, 35).

  Additionally, some of Russell's comments to other employees such as Jonasson and Lynch could also indicate that he was associating younger employees with the kind of change he was trying to implement at College. Jonasson remembers Russell telling her that her work style would "inhibit the development of the younger people he was hiring" (S. St. ¶ 40).*fn14 Russell also testified that although Lynch was "knowledgeable" and "a real team player" he was "not what he was a few years ago" (S. St. ¶ 53) and that the Reorganization would affect his duties because (S, St. ¶ 54):

sometimes people are doing jobs that were needed in the past but the relevance of that job and maybe some of those groups doesn't exist today like it did a few years ago.
Again, although those statements do not pertain directly to Strauch, the comments could support an inference that if Russell harbored discriminatory motives when making decisions regarding Jonasson and Lynch, the same motives could well have played into his decisions about Strauch (Huff, 122 F.3d at 386). Page 17

  To repeat the point made in n.12, it may be unlikely that any of those comments could alone raise a sufficiently strong inference of discrimination to overcome summary judgment. Indeed, College will be able to argue to the jury that even those comments in combination would not suffice. But once again it is the totality of circumstantial evidence — the other matters discussed hereafter, as well as what has been covered to this point — that pose a jury question.

  Before this opinion turns to the evidence other than Russell's statements to which Strauch points, attention should be paid to one specific category of his comments. Those comprise Russell's conversations with Strauch (and Jonasson and Lynch) about their retirement plans.

  In that respect the question is not whether College terminated Strauch because he was about to retire or whether College systematically terminated employees who were about to retire. Hazen Paper, 507 U.S. at 611-12 teaches that although retirement and age are correlated, they are also analytically distinct — so that such a motive (although perhaps not legal because of other statutes) does not violate ADEA as such (see also Leibforth, 337 F.3d at 934). Instead retirement-related inquiries could be probative of a discriminatory campaign to encourage older employees to leave College, with questioning employees about retirement being a part of that effort (Kaniff v. Page 18 Allstate Ins. Co., 121 F.3d 258, 263 (7th Cir. 1997)).

  Courts of course recognize that an employer "has a legitimate interest in learning its employees' plans for the future and it would be absurd to deter such inquiries by treating them as evidence of unlawful conduct" (Colosi, 965 F.2d at 502). But even so, such inquiries that surpass the bounds of reasonableness could contribute to an inference of age discrimination (Cox v. Dubugue Bank & Trust Co., 163 F.3d 492, 497 (8th Cir. 1998)).

  All of that forms the matrix for an examination of Russell's retirement-related conversations with each employee. As for Strauch himself, it was Russell and not Strauch who broached the subject in May 2000 when Russell told Strauch of the Reorganization. Russell characterizes that as a congenial conversation in which Russell first said that College was making bigger plans and wanted to make sure that Strauch's plans fit in with those plans, and then Strauch assertedly responded with a clear statement that he planned to retire "at age seventy" (Russell Dep. 70:14-73:5). Yet Russell also acknowledges that his conversation with Strauch about retirement was also part of a larger scheme to "get people to understand what we were trying to do . . . that the strategic plan was rolling out and that we were going to be reorganizing and sort of reshuffling, changing Page 19 responsibilities" (S. St. ¶ 51).*fn15

  That additional layer is fleshed out by examining conversations that Russell had with other employees about retirement. Russell spoke extensively with Lynch about his retirement plans and the Reorganization and testified that because the Reorganization "sort of rang his bell," Lynch's decision to retire (assuming for the moment that he was not terminated) was undoubtedly connected to his realization that his job was going to be eliminated as part of the Reorganisation (C. Resp. ¶¶ 25, 56; S. St. ¶ 51).

  Russell's conversations with Jonasson about retirement were also closely linked to discussions about job elimination. Russell maintains that Jonasson had previously suggested to him that she was willing to retire when Russell thought the time was right but that she reneged on that score when Russell indicated to her that the College was "moving into a new era" and that the Reorganization would provide a good occasion for her retirement Page 20 (Russell Dep. 304:19-305:9). Jonasson recalls the incident very differently. She maintains that Russell threatened her with termination if she did not retire (or become a part-time employee) as part of the Reorganization (S. St. ¶¶ 37-39, 40-42).

  For Rule 56 purposes, the need to draw reasonable pro-Strauch inferences calls for discrediting Russell's version of events in favor of Strauch's and Jonasson's. That being so, there is at least a genuine issue of material fact as to whether Russell's inquiries were reasonable under the circumstances or whether he hounded Strauch and other older employees enough to begin to raise an inference of age discrimination (see Kaniff, 121 F.3d at 263).

  So much then for the impact of decisionmaker Russell's statements. But in addition, a factfinding jury could reasonably find that inconsistencies on College's part in seeking to justify its decisions regarding Strauch also weigh in the scales to create the required issue of material fact.

  Thus even though College stresses Strauch's declared intention to retire as its motivation for terminating him and for its other actions in connection with that termination (C. Resp. ¶ 32; C. Mem. 13), Russell's testimony labels the Reorganization as the "real" impetus for its actions (S. Resp. ¶ 29):

  It was really the restructuring of the college, and the fact that he had stated that he wanted to retire at 70 was sort of something else. But the real thing was that we were reorganizing The American College of Surgeons. Page 21

 And elsewhere Russell points to asserted deficiencies in Strauch's performance as motivating his termination decision (Russell Dep. 98:2-102:22, S. Ex. 9 at Resp. ¶ 4) — an assertion wholly at odds with College's agreement that Strauch was "not fired for poor performance" and that the termination was "unrelated to his performance of his job duties and responsibilities," as well as by the overwhelmingly positive performance reviews that Strauch had received from Russell throughout the course of his employment (S. St. ¶¶ 11-12, 15-16; Fisher, 225 F.3d at 920-21).*fn16

  That concludes a review of the evidence from Strauch's perspective, as Rule 56 requires. And as stated earlier, the combination of Russell's statements and other circumstantial evidence, viewed through a pro-Strauch lens, suffices to raise a genuine issue of material fact about the possibility of age discrimination (Zaccagnini v. Chas. Levy Circulating Co., Page 22 338 F.3d 672, 676-77 (7th Cir. 2003)).

  One final point should be addressed: College's contention that Russell's own membership in the ADA-protected class (he was 61 when he terminated Strauch) weakens any inference of discrimination (C. Mem. 14). Quite apart from the obvious proposition that shared status in a protected class between plaintiff and decisionmaker does not preclude a finding of intentional discrimination (see, e.g., United States v. Crosby, 59 F.3d 1133, 1135 n.4 (11th Cir. 1995)),*fn17 the most that such shared status could do would be to add a factor on College's side of the balance scales — but it must be remembered that the weighing of evidence plays no part in Rule 56 jurisprudence.

  Moreover, in an ironic way a factfinding jury could well view Russell's status as a member of the ADEA-protected class as a factor contributing to a decision motivated at least in part by age discrimination. Russell said that he did not think that he himself would be qualified for a job similar to any of the new positions that would call for performing Strauch's assigned duties after the Reorganization (S. St. ¶ 36):

  I mean, you know, I look at myself. I don't have those skills. I mean, I was an active surgeon teaching Page 23 students and residents, and it's a very different era right now.

 It is surely a permissible inference that Russell's self-perception of his own lack of skills, in light of his age, also extended to Strauch — a mindset that represents the very kind of stereotyping that ADEA prohibits (Hazen Paper, 507 U.S. at 511-12).

 Count II: Willful Violation of ADEA

  ADEA provides for liquidated damages only where a defendant's conduct has been "willful" (Section 626(b)). Employers commit willful violations when they know that their conduct is prohibited or when they recklessly disregard the possibility that their conduct is prohibited (Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 P.3d 573, 581 (7th Cir. 2003)). Conversely, no employer is in willful violation of the ADEA where it incorrectly but in good faith believes its conduct is not prohibited (id.).

  At this stage of the case, with the question of College's liability for Strauch's underlying discrimination claim still open, it is obviously premature to entertain a willfulness determination. College's summary judgment motion is denied as to Count II as well.

 Count VI: Retaliation Under ADEA

  In part Strauch's Count VI retaliation claim charged not only a retaliatory delay in the payment of amounts due him from Page 24 College but in one instance — the payment of his benefits under College's Severance Plan — a shortfall of some $200,000 in the amount ultimately paid to him on December 30, 2002 (well after he brought suit). Now College has confirmed that its original larger figure as represented to Strauch had been a "typo," and Strauch has accepted the accuracy of the later (and much lower) figure.

  College's characterization of its motion to verify that Strauch is no longer seeking the higher amount really does not fit the Rule 56 mold, as contrasted with its being a Rule 16 issue-narrowing motion. Strauch's responsive memorandum devotes only a brief footnote (S. Mem. 18 n.7) to a confirmation that he had "separately notified defendants that he is not seeking that difference based upon the representation that the higher amount was provided in error," so that "[t]his aspect of the motion was, at best, unnecessary." In light of the absence of dispute over the substance of the motion, this Court grants it (even though Strauch may be right as to the lack of necessity, this ruling confirms the matter of record).


  Because of the existence of genuine issues of material fact, College's motion targeting TAG Counts I and II is denied. With no dispute existing as to a portion of the relief sought under TAC Count VI, its motion as to that portion is granted. This Page 25 case will go to trial on all of Strauch's claims, subject only to the Count VI partial limitation.

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