United States District Court, N.D. Illinois
February 3, 2004.
GERALD O. STRAUCH, M.D., Plaintiff,
AMERICAN COLLEGE OF SURGEONS, Defendant
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
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
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
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
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
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,
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
about those alternate arrangements eventually failed, Strauch's
employment with College was terminated on December 31, 2001 (S. St. ¶
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
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
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
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
agonize over which label should be used to analyze Strauch's ADEA
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.
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
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
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
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.
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
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
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
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
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
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. ¶
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).
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.
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
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
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
(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
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
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
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
students and residents, and it's a very different era
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
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
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
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
case will go to trial on all of Strauch's claims, subject only to
the Count VI partial limitation.