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Daniel Schwarz v. Loyola University Medical Center

June 11, 2012


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Plaintiff Daniel Schwarz ("Schwarz") filed a seven-count amended complaint [6] against Defendant Loyola University Medical Center ("Loyola") alleging discriminatory employment practices. Before the Court is Loyola's motion for summary judgment [111]. For the reasons explained below, the Court grants summary judgment for Loyola and against Schwarz on the Americans with Disability claims and dismisses the remaining counts without prejudice to refiling in state court. The case is terminated and judgment is entered in favor of Defendant Loyola on the ADA's counts.



Plaintiff Daniel Schwarz is a licensed physician who has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"). Schwarz commenced and completed his general surgery residency at the Medical College of Ohio between July 1988 and June 1993. He began a plastic surgery residency at the University of Michigan in July 1993, but was terminated from the program prior to its completion in October 1996 for performance and behavior issues. Plaintiff was a trauma surgeon at St. Vincent's Medical Center in Toledo, Ohio between September 1993 and July 1999, although he testified that his last trauma call at St. Vincent's was in November 1997. Between 1997 and 2006, Plaintiff did not treat any patients. Rather, he was employed as a financial consultant/loan officer between 1998-2004. He returned to the University of Michigan as a research fellow in June 2004.

In February 2006, Schwarz submitted an application to the Plastic Surgery Central Application Service, which matched him with Loyola's plastic surgery residency program. In his personal statement submitted with his application, Schwarz stated that he was terminated from the University of Michigan "for reasons I created" and testified that those reasons were "behaviors secondary to [his] undiagnosed, untreated ADHD and alcoholism." Pl. Resp. ¶ 7. In his statement, he also stated that he had "completely rectified the issues that contributed to [his] release." He supported his application with letters of recommendation making the same assertions.*fn2

In considering Schwarz's application for a plastic surgery resident position, some Loyola personnel expressed concern about the circumstances that led to Schwarz's termination from the University of Michigan as well as concern about Schwarz's absence from clinical practice for some time. Pl. Resp. ¶ 13. It was determined that Schwarz would be admitted into the plastic surgery residency program conditional upon his successful completion of a three month period working in the Burn Unit under the supervision of Dr. Gamelli. At that time, Dr. Gamelli was the chairman of the Department of Surgery and Director of the Burn Unit. Pl. Resp. ¶ 14. Dr. Gamelli testified that he intended for Schwarz to have a "warm-up" period to "prove that [Schwarz] had the capacity to the work and that he was fit for duty."

On May 11, 2006, Dr. Cimino, Assistant Professor in the Division of Plastic Reconstructive Surgery at Loyola, discussed with Schwarz the proposed plan of action and conditions to his employment in the plastic surgery residency program. Pl. Resp. ¶ 15. The day of this conversation with Dr. Cimino, Schwarz signed a letter advising him that he had been provisionally accepted into the plastic surgery residency program at Loyola upon the condition that he complete "a three-month period of re-integration into clinical work" and participate in a mentorship program. Pl. Resp. ¶ 17.

On September 1, 2006, Loyola and Schwarz executed a Graduate Medical Education Agreement ("Agreement"). This Agreement includes the provision under the heading "Remediation Provision," which states:

The Resident understands and hereby acknowledges that upon receipt of Illinois medical licensure, but prior to participating in resident rotations required by PGY-7 plastic surgery residents, he will be assigned to a non-accredited general surgery rotation where he will receive training under the direct supervision of the Chairman of the Department of Surgery for a period of time not to exceed three months. The Resident further understands and hereby acknowledges that he will not receive credit toward graduation and/or certification for the time spent in the general surgical rotation. Upon successful completion of this non-accredited general surgical training, the Resident shall begin his participation in the plastic surgery residency-training program where he will be eligible to receive credit toward graduation and/or certification. If the Resident does not successfully compete the general surgical training, he will not be permitted to participate in the plastic surgery residency-training program and this Agreement shall terminate immediately.

Pl. Resp. ¶ 18.

Prior to executing the agreement, Plaintiff responded to his receipt of the agreement in an e-mail to Dr. Dado and Kim Echert dated July 21, 2006, for which he put the heading "Contract great-everything go!" and stated: "Thank you all for the consideration and detail with my contract * * * the non-accredited Genl Surgery is a great benefit: it may allow me to be eligible for recertification of my General Surgery Boards. Every aspect of what you have considered and provided has worked out well for all parties. I am grateful." See Plaintiff Dep. Ex. 11. In the e-mail, Dr. Schwarz also indicated he would defer to Dr. Doot and GME to make adjustments regarding the "proactive random monitoring agreement." In an August 17, 2006 e-mail to Dr. Dado, Residency Program Director for the Division of Plastic and Reconstructive Surgery, Schwarz stated that he was having some issues with logistics (moving from Michigan and "cleaning up prior matters:"), however he stated "***Once I start Sept 1, this will be a COMPLETELY closed book. I will NOT have any unfinished items; will be up-to-date, and will NOT have any excuses or reasons to prevent me from being the best resident." Pl. Resp. ¶ 21. Plaintiff left his home in Michigan to move to Chicago, Illinois at approximately 3:00 p.m. on August 31, 2006 with plans to begin working at Loyola on 8:00 a.m. the following day. Pl. Resp. ¶ 22. After beginning his employment at Loyola, Schwarz continued to assist students at the University of Michigan and continued to work on completing his federal tax returns from prior years. Pl. Resp. ¶ 24.

Several doctors at Loyola testified that, from the beginning of Schwarz's employment at Loyola, Schwarz' lack of promptness concerned them. A memo from Dr. Brewster, the chief resident in the Burn Unit while Schwarz was working there, noted that Schwarz did not demonstrate promptness in responding to pagers. Pl. Resp. ¶ 25. Additionally, a first year resident in the general surgery training, Dr. Gresik, testified that Plaintiff was frequently late to work. Pl. Resp. ¶ 26. She further testified that Plaintiff did not participate in doing all of the work that the other residents in the Burn Unit did, forcing the other residents to work more.

Schwarz contests the factual basis for these statements. Pl. Resp. ¶ 26. However, Schwarz testified "there may have been a couple of pages I wasn't able to immediately address." Pl. Resp. ¶ 25.

Schwarz's interactions with doctors and hospital staff also were a documented concern. Dr. Gresik testified that Schwarz yelled over her during rounds several times. She also testified that Schwarz yelled defensively to Dr. Brewster about "an excuse or incorrect information about what was going on with the patient" and that this impaired the ability of the team to continue rounds. Pl. Resp. ΒΆ 28. Schwarz denies the frequency that ...

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