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Wiechen v. Palos Community Hospital

September 28, 2006



Pro se plaintiff Richard Wiechen ("Wiechen") has charged Palos Community Hospital ("Palos") with two types of employment discrimination, one ascribable to his multiple sclerosis ("MS") and the other because of his age--the first of those being an asserted violation of the Americans with Disabilities Act ("ADA," 42 U.S.C. §§12101 to 12117), while the second is an asserted violation of the Age Discrimination in Employment Act ("ADEA," 29 U.S.C. §§621 to 634).*fn1 Palos has moved for summary judgment on each of those claims under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Palos' motion is granted as to both the ADA and the ADEA charges.

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 non-movant "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)). Ultimately summary judgment is appropriate only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

What follows is a summary of the facts as viewed in the light most favorable to the plaintiff, but only so long as those facts are supported by record evidence.*fn2 In that respect, as reflected in its P. R. Mem. and its LR 56.1(a)(3) response, Palos has identified a number of substantial defects in Wiechen's LR 56.1(b)(3) response to Palos' initial statement of material facts. Those comprise Wiechen's admission of many of the facts in Palos' statement (either directly or by incomplete denial), his argumentative rather than factually based denials, his insertion of extraneous information in his own responses and his reliance on assertions unsupported in the manner required by Rule 56(e). As Palos also notes correctly, LR 56.1 calls for strict compliance, so that a non-movant's failure to comply is treated as the admission of the movant's statement of facts (Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) is exemplary of a host of cases so holding).

Non-movant Wiechen was also entitled under LR 56.1(b)(3) to submit a statement of any additional facts that would trigger the denial of summary judgment. Wiechen has ventured to provide such facts, some in attempted compliance with the LR and others embedded in his memorandum of law, and still others improperly buried in his responses to Palos' LR 56.1(a)(3) statement. More problematic than their improper form, many of those asserted facts are unsupported by admissible evidence based on personal knowledge, as required by Rule 56(e).

This opinion could simply disregard any such nonconforming evidence (see, e.g., Cichon v. Exelon Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005)). But mindful that Wiechen has proceeded pro se, this Court (as always) heeds the teaching of Haines v. Kerner, 404 U.S. 519, 520 (1972)(per curiam) and will not hold him to the strict standards that it expects lawyers to satisfy. Instead this Court has attempted to ferret out and consider all admissible evidence set forth by Wiechen in his submissions. Even so, Wiechen has not overcome Palos' motion for summary judgment.


Palos is a hospital located in Palos Heights, Illinois (P. St. ¶3). Wiechen, born in 1954, was employed in Palos' accounting department (he is a Certified Public Accountant) from 1994 until his termination in October 2004 (P. St. ¶¶4, 5, 73; W. Mem. 1-2; W. Dep. 6:8-9). In 1999 Wiechen was diagnosed with MS (P. St. ¶24). While the disease has had no effect on his cognitive abilities, by 2004 it had created some observable physical symptoms (P. St. ¶27; W. St. ¶32).

All was apparently well with Wiechen's employment at Palos until October 2003, when Tom Laporte ("Laporte") joined Palos as an Assistant Vice President of Finance responsible for all accounting functions at Palos, including supervision of the staff (Wiechen included) in the accounting department (P. St. ¶¶6-7; W. Mem. 2). At that time Laporte reassigned job responsibilities among the staff (again including Wiechen)(P. St. ¶8; W. Mem. 2). As part of his newly configured duties, Wiechen became responsible for reconciling Palos' home health care facility's records with the hospital's general ledger, reconciling Blue Cross accounts with particular patient accounts at Palos and ensuring that prepaid expenses at the hospital were properly recorded and amortized (P. St. ¶¶9-11).

By February 9, 2004 Laporte found cause to issue a first record of employee counseling to Wiechen, based on Laporte's review of his work on those new assignments (P. St. ¶12).*fn3 That review revealed that the home health care accounts for which Wiechen was responsible had not been reconciled and that Wiechen had neither investigated nor explained the problem to Laporte's satisfaction (id. ¶¶13-16). Finding that Wiechen had also conducted an incomplete analysis of the prepaid accounts so that a $170,000 adjustment had to be made, Laporte considered Wiechen's handling of that responsibility unsatisfactory as well (id. ¶17). In the record of employee counseling, Laporte directed Wiechen to improve his performance over the next month, including correcting the errors that Laporte had noted (id. ¶18).

In response Wiechen wrote this on his employee counseling record (P. St. 21; W. Mem. 2):

Any help that you can give me would be appreciated. I do not want to use my MS as an excuse, but I'm truly doing the best I can.

While Wiechen believes that his MS symptoms had become apparent by 2004, both Laporte and Palos' Director of Human Resources Bill Cleary ("Cleary") swear that the just-quoted note on his employee counseling record was the first time that they learned of his MS (P. St. ¶¶30-32; W. St. ¶32).

After reading the note, Cleary requested that Wiechen meet with him (P. St. ¶33; W. Mem. 2). That meeting took place on February 18, and Cleary then told Wiechen about Palos' long-term disability plan for which he might qualify. While the exact details of that and surrounding conversations are disputed, Wiechen's version (credited for present purposes) is that Cleary told him "he had to make a decision if he wanted to go on disability," that he "could not continue employment" and that Palos management was giving Wiechen no option other than to go on disability (W. St. ¶35; W. Mem. 2). Cleary later provided Wiechen with the necessary forms to apply for Palos' long term disability program (P. St. ¶36; W. Mem. 2). Unable or unwilling to obtain a required physician's approval, Wiechen told Cleary he would not be applying for Palos' disability plan (P. St. ¶37; W. St. ¶37; W. Mem. 3).

Believing that Wiechen had not improved his performance, Laporte issued him a second record of employee counseling at the end of March (P. St. ¶38), reflecting that Wiechen's reconciliations of his accounts had continued to be unsatisfactory, with unexplained differences, and that there had again been improperly recorded costs in his prepaid accounts statement (P. St. ¶¶39-42). Laporte gave Wiechen another opportunity to improve his performance to meet Laporte's expectations, but in August Laporte wrote up Wiechen for a third time, finding that the accounts for which Wiechen was responsible were still unreconciled and insufficiently explained (P. St. ...

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