Karagiannis v. Allcare Dental Management, LLC et al
Filing
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OPINION entered by Chief Judge Michael P. McCuskey on 8/01/2011. Allcare's Motion for Summary Judgment 31 is GRANTED. Judgment is entered in favor of Allcare and against Plaintiff on Plaintiff's Complaint. The final pretrial conference scheduled for September 2, 2011 at 11:00 AM and the Jury Trial scheduled for September 12, 2011 at 9:00 AM are VACATED. This case is terminated. See written Opinion. (DE, ilcd)
E-FILED
Monday, 01 August, 2011 10:13:17 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
_____________________________________________________________________________
THOMAS V. KARAGIANNIS,
Plaintiff,
v.
ALLCARE DENTAL MANAGEMENT, LLC;
ALLCARE DENTAL & DENTURES OF
ILLINOIS - BATES DDS, P.C., d/b/a Allcare
Dental & Dentures,
Defendants.
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Case No. 10-CV-2085
OPINION
This case is before the court for ruling on the Motion for Summary Judgment (#31) filed by
Defendants, Allcare Dental Management, LLC, and Allcare Dental & Dentures of Illinois - Bates
DDS, P.C. d/b/a/ Allcare Dental & Dentures (collectively referred to as “Allcare”). This court has
carefully reviewed the arguments of the parties and the documents filed by the parties. Following
this careful and thorough review, Allcare’s Motion for Summary Judgment (#31) is GRANTED.
FACTS1
In April 2007, Plaintiff, Thomas V. Karagiannis, began working for Allcare as the comanaging clinical director of its Bradley, Illinois office. Plaintiff was 47 years old when he was
hired and had approximately 19 years of experience in dentistry, which was a factor in his selection
by Allcare. Around the same time, Allcare also hired Dr. Patrick Conaghan to be the other comanaging clinical director for the Bradley office. Dr. Conaghan was 44 years old and his level of
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The facts are taken from Allcare’s statement of undisputed facts and the documents
submitted by the parties, including affidavits and the transcript of Plaintiff’s deposition. This
court has only included facts which are adequately supported by evidence in the record.
experience was similar to that of Plaintiff. Both Plaintiff and Dr. Conaghan were eligible to receive
bonus monies based upon the performance of the Bradley office.
At some point, Dr. Conaghan became concerned that Plaintiff presented a malpractice risk
to Allcare because of his treatment practices. This concern developed based upon Dr. Conaghan’s
observations of Plaintiff while treating patients as well as his review of patient charts. Dr. Conaghan
frequently observed the work of Plaintiff when he became involved with a shared patient who was
also worked on by Plaintiff. Dr. Conaghan observed that many of Plaintiff’s diagnoses were
incorrect and his impressions and bite registrations were poor. Dr. Conaghan also observed Plaintiff
dislocate a patient’s jaw and perforate the root of another patient. According to Plaintiff, Dr.
Conaghan questioned him in front of patients regarding his restorative work on a few occasions.
In his discussions with Plaintiff, Dr. Conaghan did not mention Plaintiff’s age. Plaintiff claims Dr.
Conaghan harassed him. Plaintiff testified at his deposition, however, that Dr. Conaghan did not
harass him about his age but, instead, the harassment was motivated by Dr. Conaghan’s desire to
collect Plaintiff’s share of the bonus pool.
Dr. Conaghan expressed his concerns about Plaintiff’s negligent care and treatment of
patients to Allcare’s management. Dr. Tara Zrinyi, Allcare’s Regional Managing Clinical Director,
conducted an on-site investigation of Plaintiff’s patient records. Based upon Dr. Zrinyi’s findings,
Allcare believed Plaintiff’s treatment of patients exposed it to potential malpractice claims. Allcare
decided to terminate Plaintiff’s employment. It is undisputed that, on August 23, 2007, Plaintiff was
presented with Dr. Zrinyi’s findings and, based solely on those findings, was offered the choice of
voluntary resignation or termination. Plaintiff chose to resign on August 23, 2007. Plaintiff was 48
years old. A few weeks after the termination of Plaintiff’s employment, Allcare hired Dr. Patricia
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Tarallo, a 44-year-old dentist with over 15 years’ experience, to replace him.
PROCEDURAL HISTORY
On March 17, 2008, Plaintiff filed a charge of discrimination with the Illinois Department
of Human Rights and the Equal Employment Opportunity Commission (EEOC). Plaintiff alleged
that he was discriminated against because of his age, 48, in violation of the Age Discrimination in
Employment Act of 1967, as amended (ADEA). On January 14, 2010, the EEOC sent Plaintiff a
Notice of Right to Sue. On April 12, 2010, Plaintiff filed his Complaint (#1) in this court. Plaintiff
alleged that the termination of his employment violated the ADEA because he was terminated
because of his age.
On May 31, 2011, Allcare filed a Motion for Summary Judgment (#31) and attached
supporting exhibits. Allcare argued that it is entitled to summary judgment because Plaintiff cannot
set forth a prima facie case of age discrimination nor can he show that Allcare’s reason for
termination was pretextual.
On July 8, 2011, Plaintiff filed a Response to Motion for Summary Judgment (#34). Plaintiff
argued that summary judgment is inappropriate because there “are facts Plaintiff directly disputes.”
Plaintiff stated that he disputed various facts listed in Allcare’s statement of undisputed facts. For
example, Plaintiff denied that Dr. Conaghan observed poor treatment of patients by Plaintiff and
denied that Allcare decided to terminate Plaintiff’s employment based upon Dr. Zinryi’s findings
which Allcare believed exposed it to potential malpractice claims. Plaintiff did not cite to any
evidentiary support for his denials.
On July 22, 2011, Allcare filed its Reply (#35). Allcare pointed out that Local Rule 7.1 of
the Local Rules of the Central District of Illinois provides that the party responding to a motion for
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summary judgment must provide “evidentiary documentation referenced by specific page” for each
individual statement of fact which is disputed. See Local R. 7.1(D)(2)(b)(2). The Rule further
provides that a “failure to respond to any numbered fact will be deemed an admission of the fact.”
Local R. 7.1(D)(2)(b)(6). Allcare argued that all of the facts included in its statement of undisputed
facts must be deemed admitted by Plaintiff. Allcare also argued that, based upon the undisputed
facts, it is entitled to summary judgment on Plaintiff’s age discrimination claim.
ANALYSIS
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary
judgment, a district court “has one task and one task only: to decide, based on the evidence of record,
whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp.,
24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court must construe the evidence
in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Singer v. Raemisch, 593
F.3d 529, 533 (7th Cir. 2010). However, a court’s favor toward the nonmoving party does not extend
to drawing inferences which are only supported by speculation or conjecture. See Singer, 593 F.3d
at 533.
The party opposing summary judgment may not rely on the allegations contained in the
pleadings. Waldridge, 24 F.3d at 920. “[I]nstead, the nonmovant must present definite, competent
evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004).
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Summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a party must show what
evidence it has that would convince a trier of fact to accept its version of events.” Koszola v. Bd.
of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004), quoting Johnson v. Cambridge
Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Specifically, to survive summary judgment, the
nonmoving party “must make a sufficient showing of evidence for each essential element of its case
on which it bears the burden at trial.” Kampmier v. Emeritus Corp., 472 F.3d 930, 936 (7th Cir.
2007), citing Celotex Corp., 477 U.S. at 322-23.
FACTS DEEMED ADMITTED
First of all, this court agrees with Allcare that Plaintiff did not follow Local Rule 7.1 and
Allcare’s statement of undisputed facts, which was supported by documentary evidence, must be
deemed admitted. The Seventh Circuit has repeatedly upheld the strict enforcement of local rules
and has sustained the entry of summary judgment when the non-movant has failed to submit a factual
statement in the form called for by the pertinent local rule. See Waldridge, 24 F.3d at 922. In such
a circumstance, the non-movant is deemed to have conceded the movant’s version of the facts. See
Waldridge, 24 F.3d at 922; Coffey v. Cox, 218 F. Supp. 2d 997, 999 n.3 (C.D. Ill. 2003). Plaintiff’s
denials do not cite any evidence in support and Allcare’s statements of fact are deemed admitted.
See Senske v. Sybase, Inc., 588 F.3d 501, 503 n.1 (7th Cir. 2009); Renta v. County of Cook, 735 F.
Supp. 2d 957, 963 (N.D. Ill. 2010).
PLAINTIFF’S ADEA CLAIM
“The ADEA prohibits an employer from discriminating against an employee because of his
age.” Mach v. Will County Sheriff, 580 F.3d 495, 498 (7th Cir. 2009). The ADEA protects workers
who are 40 or older. 29 U.S.C. § 631(a). The United States Supreme Court has held that it is not
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sufficient for a plaintiff in an ADEA case to show that age was a motivating factor and must, instead,
demonstrate that age was the “but-for” cause of the challenged employment action. Gross v. FBL
Fin. Servs., Inc., ___ U.S. ___, 129 S. Ct. 2343, 2352 (2009); see also Mach, 580 F.3d at 498.
A plaintiff can attempt to demonstrate discrimination under either the direct or indirect
method of proof. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir. 2006). Plaintiff has not
argued, or shown, that he can proceed under the direct method by presenting direct or circumstantial
evidence of discrimination on the basis of his age. Therefore, Plaintiff must proceed using indirect
proof under the burden shifting analysis from McDonald Douglas Corp. v. Green, 411 U.S. 792
(1973). See Duncan v. Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486, 490 (7th Cir. 2008). To
establish a prima facie case of age discrimination under the indirect method, Plaintiff must show that:
(1) he was a member of the protected class; (2) he was meeting his employer’s legitimate
expectations; (3) he suffered an adverse employment action; and (4) other similarly situated
employees who were not members of his protected class or were substantially younger were treated
more favorably. See Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d 470, 475 (7th
Cir. 2008). In a case involving a plaintiff who was discharged and replaced, the fourth prong of the
prima facie case can be met by showing that the plaintiff’s replacement was substantially younger
than the plaintiff. See Olson v. N. FS, Inc., 387 F.3d 632, 635-36 (7th Cir. 2004). If a plaintiff can
establish all four elements of his prima facie case, the burden shifts to the defendant to offer a
legitimate, nondiscriminatory reason for the adverse employment action. See Hemsworth v.
Quotesworth.com, Inc., 476 F.3d 487, 492 (7th Cir. 2007). If the defendant meets this burden, the
plaintiff must attempt to show that the defendant’s stated reasons are pretextual. Hemsworth, 476
F.3d at 492. However, if Plaintiff does not meet his burden to establish the elements of a prima facie
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case, summary judgment is appropriate in favor of Allcare. See Hemsworth, 476 F.3d at 492.
Allcare has not contested that Plaintiff can establish the first and third prongs of his prima
facie case. These elements are met because Plaintiff is over 40 years old and his employment was
terminated.2 Allcare has argued, however, that Plaintiff cannot establish the second and fourth
prongs of the prima facie case. Allcare stated that it is apparent from the evidence that Plaintiff was
not meeting Defendants’ legitimate expectations at the time of his termination. Allcare argued that
Plaintiff was terminated based on concern over his negligent treatment of patients. Allcare pointed
out that the evidence shows that Dr. Conaghan became concerned that Plaintiff’s treatment of
patients was negligent and was jeopardizing patient safety and that, as a result of Plaintiff’s treatment
practices, Allcare was exposed to a risk of malpractice lawsuits. Allcare stated that Dr. Zrinyi’s
subsequent investigation confirmed Dr. Conaghan’s concerns and Plaintiff was terminated as a result
of these findings. Regarding the fourth prong, Allcare stated that the evidence shows that Plaintiff
was not replaced with a “substantially younger” dentist. Plaintiff’s replacement, Dr. Patricia Tarallo,
was 44 years old when she was hired, only four years younger than Plaintiff.
As far as the second prong, Plaintiff has disputed that he was not meeting Allcare’s legitimate
expectations. He bases his argument on his own testimony that Dr. Conaghan gave Dr. Zrinyi
misinformation about him. Plaintiff testified that there were never any written or verbal complaints
about him made by any patient and also testified that he was given a favorable 90-day review.
Plaintiff also relied on his assertion that he filed a wage claim against Allcare in the circuit court of
Kankakee County based upon its failure to pay him the bonus pay he was owed. Plaintiff further
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Defendants noted that Plaintiff actually elected to voluntarily resign. They stated that,
for purposes of this motion only, they concede that Plaintiff’s separation from his employment
satisfies that third prong of his prima facie case.
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asserted that he was awarded $5,562.81, plus attorney’s fees and costs of suit, in the circuit court.
Plaintiff does not explain why his successful wage claim has any relevance to his age discrimination
claim in this court. This court can only speculate that Plaintiff is trying to argue that he would not
have been awarded bonus pay if he had not performed satisfactorily. In their Reply, Defendants have
persuasively argued that Allcare’s statements regarding Plaintiff’s poor performance have been
deemed admitted and must be taken as true and that his separate, unrelated action against Allcare for
wages that he believed were owed to him after he was fired has absolutely nothing to do with
Plaintiff’s age discrimination claim. However, this court concludes that it does not need to discuss
the issue of whether Plaintiff was meeting Allcare’s legitimate expectations because it is clear that
Plaintiff cannot establish the fourth prong of his prima facie case.
The United States Supreme Court has recognized that the prima facie case requires “evidence
adequate to create an inference that an employment decision was based on a[n] [illegal]
discriminatory criterion . . . .” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13
(1996) (emphasis in original), quoting Teamsters v. United States, 431 U.S. 324, 358 (1977). The
Court then stated:
In the age-discrimination context, such an inference cannot be drawn
from the replacement of one worker with another worker
insignificantly younger. Because the ADEA prohibits discrimination
on the basis of age and not class membership, the fact that the
replacement is substantially younger than the plaintiff is a far more
reliable indicator of age discrimination than is the fact that the
plaintiff was replaced by someone outside the protected class.
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O’Connor, 517 U.S. at 313. The Seventh Circuit has repeatedly recognized that “substantially
younger” generally means ten years younger (or more). See Nagle v. Vill. of Calumet Park, 554 F.3d
1106, 1118 (7th Cir. 2009); Duncan, 518 F.3d at 493; Tubergen, 517 F.3d at 475 n.4 (7th Cir. 2008);
Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003);
Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 676 n.1 (7th Cir. 1997); see also Runyon v.
Applied Extrusion Techs., Inc., 619 F.3d 735, 740 (7th Cir. 2010). The court in Tubergen noted that
“[u]nder the ADEA, in the case of younger employees that fall above the age of forty, the age
difference must be ten years or greater in order to be presumptively substantial.” Tubergen, 517 F.3d
at 475 n.4, citing Bennington v. Caterpillar, Inc., 275 F.3d 654, 659 (7th Cir. 2001).
Plaintiff has argued that he has met his burden by showing that he was replaced by someone
younger and argued that the ten year line “is not indelible,” citing E.E.O.C. v. Bd of Regents of Univ.
of Wisc. Sys., 288 F.3d 296, 302 (7th Cir. 2002). In that case, however, the EEOC brought an age
discrimination suit on behalf of four employees. E.E.O.C., 288 F.3d at 298-99. Some of the persons
hired to replace the four employees were 10 years younger than the plaintiffs and some were not.
See E.E.O.C., 288 F.3d at 302. The Seventh Circuit determined that the fact that some of the
replacement employees were not 10 years younger did not undermine the jury’s verdict in the
EEOC’s favor. The court stated that “the line we draw is not so bright as to exclude cases where the
gap is smaller but evidence nevertheless reveals the employer’s decision to be motivated by the
plaintiff’s age.” E.E.O.C., 288 F.3d at 302, quoting Hartley v. Wisc. Bell, Inc., 124 F.3d 887, 893
(7th Cir. 1997). In this case, it is undisputed that Plaintiff was replaced by an employee who was over
40 and in the protected class and was only four years younger than Plaintiff. Further, Plaintiff has
provided absolutely no evidence that Allcare’s decision was motivated by Plaintiff’s age. Therefore,
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the case cited provides no support for Plaintiff’s argument that he has met his burden to establish a
prima facie case by showing that he was replaced by an employee who was four years younger.
The Seventh Circuit has held that differences of less that ten years between the plaintiff and
the employees allegedly treated more favorably is not significant enough to present a prima facie case
under the ADEA. See Bennington, 275 F.3d at 659 (five year difference not enough); Hartley, 124
F.3d at 893 (noting that six year and seven year difference in age between the plaintiff and
employees allegedly treated more favorably was “a presumptively insubstantial gap”). Based on this
clear precedent, this court concludes that Plaintiff has not established the fourth prong of the prima
facie case, that he was replaced by a substantially younger employee. This court concludes that no
inference of discrimination on the basis of age can be made from the fact that the 48-year-old
Plaintiff was replaced by a 44-year-old employee. Plaintiff has not established a prima facie case
of age discrimination and Allcare is entitled to summary judgment.
IT IS THEREFORE ORDERED THAT:
(1) Allcare’s Motion for Summary Judgment (#31) is GRANTED. Judgment is entered in
favor of Allcare and against Plaintiff on Plaintiff’s Complaint.
(2) The final pretrial conference scheduled for September 2, 2011, at 11:00 a.m. and the jury
trial scheduled for September 12, 2011, at 9:00 a.m. are hereby VACATED.
(3) This case is terminated.
ENTERED this 1st day of August, 2011
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE
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