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Tubergen v. St. Vincent Hospital and Health Care Center

February 21, 2008


Appeal from the United States District Court for the Southern District of Indiana. No. 1:04-cv-01765-JDT-WTL-John Daniel Tinder, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge


Before FLAUM, KANNE, ROVNER, Circuit Judges.

Laverne Tubergen alleges that St. Vincent Hospital and Health Care Center ("St. Vincent") discharged him on the basis of age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). The district court granted summary judgment in favor of St. Vincent, and we affirm.

I. Background

Tubergen is a 65 year-old ear, nose and throat doctor. He has utilized his skills as a physician and a business administrator*fn1 in a number of capacities, including work as an Army flight surgeon, a tenured professor, and an operator of a private business enterprise. From March 1997 through June 20, 2004, he was employed by St. Vincent under a contract as a Service Line Medical Director.

St. Vincent had what it referred to as a "service line" for each of the medical specialties that it provided. There were nine Service Lines in total. Each service line was characterized by dual leadership, in the sense that each was run by one physician, the Medical Director, and one nurse administrator, the Executive Director. The Medical and Executive Directors for a particular Service Line specialized in that area of clinical services. They were responsible for all of the business-related functions of their particular specialty, including operational budgets, strategic planning, clinical management, staffing and scheduling of employees, marketing, and employee relations. Medical Directors tended to be employed on a part-time basis, and focused more on physician management. Tubergen was employed as the Medical Director of the Surgical Specialties Service Line and the Musculoskeletal Service Line. Most recently, he was employed on a two-year contract for part-time employment set to expire on June 30, 2004. However, either party could prematurely terminate the agreement after ninety days' written notice.

In late 2002, St. Vincent realized that in order to remain competitive, it needed to streamline its operations and organizational structure with an eye towards becoming more efficient. In December 2002, it hired James Houser as its Chief Operating Officer with a mandate to improve operations. Houser had previous experience with reorganizations and reductions-in-force ("RIF"). He hired two outside consulting firms and constructed a steering committee of twenty St. Vincent employees to help guide the analysis and implementation. Effectively, Houser had ultimate authority over the decisions that were made. At the outset, Houser hypothesized that the Service Line structure was an expensive way to run a hospital, and he held meetings with the various Service Line heads in order to discuss the issue. Dr. Michael Wiemann and nurse Jean Meyer, Medical and Executive Directors of the Oncology Service Line, requested a meeting with Houser to discuss the potential for reorganization. They were concerned about the possibility of losing their jobs, and they offered to help Houser with his project. As a result, he made them a part of his steering team. Tubergen never approached anyone about assisting with the reorganization because he believed that his Service Line was run well, and he generally believed in the system.*fn2

After researching the issue, Houser concluded that the Service Line structure was inefficient in that it created redundant costs across various business functions. It turns out that running the hospital as nine mini-organizations made less sense than running it as one whole enterprise. Why, for instance, would you have nine groups independently working on a marketing strategy when this task could instead be consolidated across the various groups? Thus a central element of the RIF was that the Service Line management structure was to be abolished and clinical services were to be reorganized with an eye towards centralizing certain core business functions. The structure was replaced with a similar dual leadership role that spread across the several clinical specialties as opposed to having a Medical and Executive Director for each specialty. The new Chief Medical Officer and Chief Nursing Officer positions were ultimately offered to Wiemann and Meyer. Several new positions were created that would report to these two officers. With respect to Tubergen's former job, his duties were divided between approximately 24 individuals. After certain positions were eliminated and others were created, Houser made the determinations as to who would fill the new positions.

The RIF eliminated over 300 positions in total. On June 20, 2003, St. Vincent communicated the results of the RIF to the various parties affected by it. Houser met in person with some of the individuals to let them know the news, including Tubergen, Cindy Leigh, Linda Hermann, and Mary Ann Scott. He told Tubergen that "this has nothing to do with your performance. Your job has been eliminated." He added that "we welcome you to review at any time the St. Vincent job posting and apply for any vacant position for which you are qualified." Tubergen did not apply for any of these new positions because, in his view, the efforts would have been futile as St. Vincent would not consider him seriously. Shortly after they were fired, Tubergen and Scott were discussing the situation, and Scott mentioned that Dr. Laws told her that Houser had told him that he was "getting rid of the old guard." Tubergen then spoke with Laws regarding this comment and Laws told him that Houser made the statement "with respect to the firing of [Scott, Hermann and Leigh]." Specifically, Laws recalled "sitting in [Houser's] office at a time before the RIF when [Houser] informed [Laws] that Mary Ann Scott was going to be terminated and it was the beginning of getting rid of the old guard." Further, Laws stated that the "context of the meeting was . . . what was going to happen to the children's hospital personnel." Houser himself does not remember making the statement, but noted that if he did make it, "it was referencing structure, not people . . . it would have been in the context of a change in leadership . . . moving away from one model and into another model."

On December 5, 2003, Tubergen filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). On August 2, 2004, he received his right to sue letter from the EEOC and then filed a complaint in the district court. He alleges that he was wrongfully terminated because of his age in violation of the ADEA. After discovery, the district court ruled in favor of St. Vincent and granted its summary judgment motion.

II. Discussion

On appeal, Tubergen makes two separate but related arguments. First, he contends that the district court erred in determining that Houser's alleged ageist statements failed to give rise to a reasonable inference of age discrimination. Second, he maintains that the district court incorrectly concluded that he had failed to establish that any similarly ...

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