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STRAUCH v. AMERICAN COLLEGE OF SURGEONS

February 3, 2004.

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

  Facts

  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 ...


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