Schwarz v. Loyola Healthcare Systems
MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 6/11/2012. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LOYOLA UNIVERSITY MEDICAL
Case No.: 08 C 5019
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Daniel Schwarz (“Schwarz”) filed a seven-count amended complaint  against
Defendant Loyola University Medical Center (“Loyola”) alleging discriminatory employment
practices. Before the Court is Loyola’s motion for summary judgment . 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
The Court takes all relevant facts primarily from the parties’ Local Rule (“L.R.”) 56.1 statements:
Defendant’s Statement of Facts (“Def. SOF”) , Plaintiff’s Response to Defendant’s Statement of
Facts (“Pl. Resp.”) , Plaintiff’s Statement of Additional Facts (“Pl. SOAF”) , and Defendant’s
Response to the Plaintiff’s Statement of Additional Facts (Def. Resp.) .
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]
He supported his application with letters of recommendation making the same
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
One of those letters, from Dr. Steven Buchman at the University of Michigan, observed that Plaintiff’s
difficulties “were not compatible with the rigors and demands essential to both fulfill the requirements of
residency or to move on professionally as a proficient practitioner.” Conversely, Dr. Buchman did state
that Plaintiff’s laboratory work was “remarkable.”
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
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 PGY7 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
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 email, 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. ¶ 28. Schwarz denies the frequency that Dr. Gresik alleges but acknowledges
two instances in which he raised his voice while working. Pl. Resp. ¶ 28.
Loyola made certain accommodations in an attempt to work with Plaintiff. On Schwarz’s
first night for in-house call, Dr. Brewster stayed with him. Pl. Resp. ¶ 32. Additionally, Dr.
Brewster met with Schwarz in the mornings after nights that Schwarz was on call to confer with
him regarding his performance. Pl. Resp. ¶ 32.
Schwarz’s patient load (when he was not on
call) also was reduced. Despite the accommodations, Dr. Brewster testified that Schwarz’s
performance did not improve. On September 19, 2006, Dr. Brewster provided Dr. Gamelli with
a written report opposing Plaintiff’s continued residency training. Dr. Brewster testified that
Plaintiff failed in his interpersonal relationships with other healthcare providers and engaged in
emotionally charged and unprofessional acts such as arguing with nurses, being absent from the
unit, not returning calls, and blaming others for patients doing poorly. Dr. Gamelli also received
reports of Plaintiff’s behavior from nurses in the Burn Unit. The incidents reported included an
unexplained delay in responding to a page to examine a bleeding patient; arguing with nurses
who questioned the appropriateness of medication orders that Plaintiff gave; calling a female
patient care technician a demeaning name; making an inappropriate comment to a patient; and
confronting a nurse about treatment in front of a patient. Plaintiff admits to being “less than
perfect,” but disputes that his unprofessional behavior extended beyond a few isolated incidents.
In addition, Dr. Gamelli personally observed Plaintiff’s behavior and felt that Plaintiff’s selfcontrol was poor, and wholly inadequate in times of relatively mild stress, and that Plaintiff’s
interpersonal skills were far below the expectations of a medical professional.
Dr. Gamelli ultimately concluded that “the demands and expectations of a
physician/surgeon exceed that which [Plaintiff] is capable of meeting” and that for Plaintiff to
continue in the training program “is simply not fair to him, to the program or to the patients that
he would have primary decision-making responsibility.” Dr. Gamelli terminated Plaintiff’s
employment by letter dated September 22, 2006. The letter stated that Plaintiff demonstrated
poor clinical knowledge and judgment and that attempts to assist him went unheeded. The letter
additionally stated that staff members raised concerns almost daily about Plaintiff’s inappropriate
behavior, including demeaning and derogatory comments directed toward hospital staff
members, and that, despite attempts to address Plaintiff’s interpersonal skills, the inappropriate
The letter further stated that Plaintiff’s conduct had undermined his
credibility and compromised patient care. Plaintiff was advised that he was being terminated for
failure to provide safe, effective, and compassionate patient care commensurate with his level of
advancement and responsibility; harassment or abuse of other hospital staff; and repetitive
unprofessional conduct. Although Plaintiff had been employed by Loyola for less than a month,
payment was tendered to him for the entire three-month period that he could have been in the
general surgery residency rotation. Plaintiff appealed his termination and a grievance hearing
was held on November 7, 2006. The Grievance Committee, followed by the Dean of the Stritch
School of Medicine, upheld Plaintiff’s termination.
In his sworn interrogatory answers in this action, Plaintiff set forth the life activities that
are impacted by his ADHD:
My specific disabling conditions include symptoms commonly found in Attention
Deficit Hyperactivity Disorder (ADHD), general anxiety disorder, substance use
disorder, among others. Major life activities that I am limited in performing
include verbal cognition, sleeping, social interaction, maintaining and forming
relationships, communication, short term memory, attention, perception,
impulsive behavior, concentration with distractions, reading comprehension,
scheduling, completing tasks, taking care of personal needs, eating, requesting
clarification, responding appropriately to negative feedback, maintaining stamina,
among others. As with anyone suffering from ADHD, my medication provided
some relief and control, however, a number of major life activities impacted by
my ADHD are still impaired even while on medication. Each of these limitations
become heightened or significantly more severe when I am sleep deprived or
unable to take medications.
My disability impacts/impacted these activities in the following ways: I need to
write down instructions and ask multiple questions for clarity; I cannot sleep
because my mind races; distractions prevent my ability to focus on a task and
complete it; I need to re-read books and must memorize them. I require
meticulous lists to complete common daily tasks, life grocery shopping, paying
bills, opening mail, completing chores and eating. I am often misunderstood by
my peers and I find myself rambling on and on; I require a structured environment
with specific goals and tasks; I sometimes “freeze” or am unable to comprehend a
situation; I am always “rushing”; I am sometimes perceived as absent minded;
and I require reminders to set alarms to keep my schedule. Investigation
Summary Judgment Standard
Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). In determining whether there is a genuine issue of fact,
the Court “must construe the facts and draw all reasonable inferences in the light most favorable
to the nonmoving party.” Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).
To avoid summary judgment, the opposing party must go beyond the pleadings and “set
forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). A genuine issue
of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the
Id. at 248.
The party seeking summary judgment has the burden of
establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). In turn, summary judgment is proper against “a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Id. at 322. And the non-moving party
“must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other
words, “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S at 252.
No heightened standard of summary judgment exists in employment discrimination
cases, nor is there a separate rule of civil procedure governing summary judgment in
employment cases. Alexander v. Wisconsin Dept. of Health and Family Servs., 263 F.3d 673,
681 (7th Cir. 2001) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir.
1997)). However, intent and credibility frequently are critical issues in employment cases that in
many instances are genuinely contestable and not appropriate for a court to decide on summary
judgment. See id. Nevertheless, summary judgment in favor of the defendant is hardly unknown
or, for that matter, rare in employment discrimination cases. Wallace, 103 F.3d at 1396.
Plaintiff alleges that Loyola’s termination of his employment as a surgical resident
constituted discrimination based on his alleged disability, Attention Deficit Hyperactivity
Disorder (“ADHD”), in violation of the Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act. Loyola contends that summary judgment on Plaintiff’s five federal claims is
appropriate because Plaintiff is not a qualified individual with a disability under the ADA for
two reasons: (1) Plaintiff could not perform the essential functions of a surgical resident with or
without reasonable accommodation, as demonstrated by his performance and behavior; and (2)
the ADA provides no bar to discipline for employee misconduct. Defendant also maintains that
Plaintiff has failed to develop any factual or legal support for his state law claims for retaliatory
discharge and defamation.
The ADA Claims
The ADA was enacted “to provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).
Two distinct types of discrimination are encompassed within the ADA. Sieberns v. Wal-Mart
Stores, Inc., 125 F.3d 1019, 1021 (1997). First, discrimination means treating “a qualified
individual with a disability” differently because of the disability. Bultemeyer v. Fort Wayne
Comm. Sch., 100 F.3d 1281, 1283 (7th Cir. 1996). This is sometimes referred to as disparate
(a claim “that other employees who were not disabled were treated more
favorably * * * [is a] claim for disparate treatment”). Second, a separate claim of discrimination
can be alleged under the ADA for failing to provide reasonable accommodation. Sieberns, 125
F.3d at 1022; Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996)
(“Unlawful discrimination under the ADA includes both discriminatory discharge and the failure
to provide reasonable accommodation.”).
Plaintiff’s argument encompasses both theories of discrimination.3 However, regardless
of the type of discrimination alleged, Plaintiff must first establish that he was a “qualified
individual with a disability.” See Mobley v. Allstate Ins. Co., 531 F.3d 539, 545 (7th Cir. 2008);
Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001). The ADA defines “qualified
individual” as “an individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires.” 42 U.S.C.
§ 12111(8); see also Timmons v. General Motors Corp., 469 F.3d 1122, 1127 (7th Cir. 2006) (to
make out a prima facie case, a plaintiff must show that he suffers from a “disability,” is qualified
to perform the essential functions of the job in question with or without reasonable
accommodation, and has suffered an adverse employment action as a result of his disability).4
The plaintiff bears the burden of proof on the issue of whether he is a “qualified individual”
under the ADA. Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1998). Therefore,
if no reasonable trier of fact could find that Plaintiff was capable of performing the essential
functions of his position at Loyola, with or without reasonable accommodation, then Plaintiff is
not a qualified individual under the ADA and summary judgment must be granted.
At the outset of his memorandum in opposition to Defendant’s motion for summary judgment, Plaintiff
states that his “primary claim in this litigation” is that Loyola discriminated against him by purportedly
changing its offer of employment to require him to initially successfully complete a reintegration period.
See Pl.’s Opp. at 1. To the extent that is Plaintiff’s allegation in this case, it was rejected by the Court in
denying Plaintiff’s motion for leave to file a second amended complaint: “What Plaintiff fails to
acknowledge is that the May letter * * * ‘provisionally’ accepted him into the Program, subject to the
condition that he participate in a three-month period for reintegration into clinical work.” [99 at 5.] The
contract that Plaintiff negotiated and signed is explicit on this point, and therefore Plaintiff’s “primary
claim” has no merit.
The same standards apply to determine whether the Rehabilitation Act has been violated in the
employment context. See Jackson v. City of Chicago, 414 F.3d 806, 810-11 (7th Cir. 2005).
Plaintiff’s ADA claims center on Plaintiff’s allegation that he should have been provided
“a slow gradual warmup period.”
Pl.’s Opp. at 3.
However, even accepting Plaintiff’s
contention that he has a disability, Defendant has put forth sufficient evidence that Plaintiff
cannot perform the essential functions of surgical resident with or without reasonable
accommodation and Plaintiff has failed to rebut this evidence with sufficient evidence of his
own. The undisputed facts before the Court depict Plaintiff’s position in the Burn Unit as
requiring interpersonal skills, organization, and the ability to provide safe and appropriate care
for patients. The overwhelming evidence demonstrates that Plaintiff was unable to perform these
functions. The nature and extent of Plaintiff’s disabilities set forth in his own interrogatory
answers demonstrate that he cannot meet the demands of a surgical resident, much less a
practicing surgeon operating without the patient care safeguards built into a residency program.
In addition to the limitations set forth by Plaintiff, Defendant’s surgical training program expert
opined on Plaintiff’s self-proclaimed limitations:
Dr. Schwarz states, in his answers to defendant’s interrogatories, that he is limited
in performing verbal cognition, social interaction, maintaining and forming
relationships, communication, short term memory, attention, perception,
concentrating with any distractions, reading comprehension, scheduling,
completing tasks and maintaining stamina, among others. In addition, he states
that he is prone to impulsive behavior. He is by his own admission not qualified
to train as a surgeon. I would tell you as a training surgeon that serious deficits in
any one or two, or arguably three of these qualities would be enough to prohibit
someone from training successfully as a surgeon in particular, maybe as a
physician at all. If stress, fatigue, long and unpredictable hours, or unexpected
problems can cause a lapse into adverse behaviors, then a medical career is
inappropriate * * * * Regardless, for the hospital and its patients, Dr. Gamelli is
obligated to ensure that patients and staff are not subjected to the uncontrolled
behavior and poor performance that Dr. Schwarz exhibited.
Furthermore, one of Plaintiff’s own witnesses, Dr. William Kuzon, the current Section Head for
Plastic Surgery at University of Michigan, testified that he did not believe Loyola’s assignment
of Plaintiff to the Burn Unit was inappropriate:
There is this basic tenet of clinical medicine that you can do it or you can’t * * *
And so if you’re going to enter into a clinical medical training program and
you’re prepared to enter into that clinical training program * * * you should be
able to handle any rotation, that you shouldn’t need to sort of, quote, ‘ease into it
somehow’ * * * because you’re either above the line or you’re not.
Def. Ex. 10, Kuzon Dep. at 69:18-70:12.
On top of Plaintiff’s admissions and the experts’ opinions, neither Dr. Gamelli (Chairman
of the Department of Surgery) nor Dr. Brewster (chief resident on the Burn Unit) believed that
Plaintiff was able to provide safe and effective patient care, with or without accommodation.
Plaintiff concedes that his re-entry into clinical work was to be personally monitored and
evaluated by Dr. Gamelli. Pl.’s Opp. at 4. It is undisputed that Dr. Gamelli worked with
Plaintiff, and that he assessed Plaintiff’s knowledge, judgment and reasoning to be insufficient.
Although Plaintiff disagrees with Dr. Gamelli’s assessment, there is no dispute that Dr. Gamelli
found Plaintiff’s performance to be sub-par. It also is undisputed that Dr. Brewster advised Dr.
Gamelli that he believed that Plaintiff’s medical knowledge and clinical judgment were deficient
in areas critical to patient care and that Plaintiff’s performance did not improve despite the
accommodations afforded him. Again, while Plaintiff disagrees, his supervisors did not believe
that he could perform the essential functions of a surgical resident with or without
accommodation. In Dr. Gamelli’s words, “the demands and expectations of a physician surgeon
exceed that which [Plaintiff] is capable of meeting.” Dr. Brewster concluded: “I could not help
Danny improve, and that this was who he was and sufficient for him not to be recommended for
continued employment or training. Not to do so would endanger patients during his training and
after his training.” Dr. Brewster and Dr. Gamelli were charged with making judgment calls
about residents, and there is no basis for suggesting or inferring that their assessments of
Plaintiff’s abilities—in terms of his capabilities as a surgical resident—reflect a discriminatory
Dr. Gamelli—who bore the ultimate responsibility for evaluating Plaintiff’s
performance and determining whether he had the necessary skill, judgment, and professionalism
to move on in his training as a plastic surgeon—did not believe Plaintiff was qualified to do so,
and Plaintiff has failed to present any evidence—beyond his own opinion—that he was qualified.
A recent Fourth Circuit decision supports Dr. Gamelli’s decision. In Shin v. University of
Maryland Medical System, 369 Fed. Appx. 472 (4th Cir. 2010), the plaintiff was a resident
physician with possible ADHD who sought a reduced workload. Based on the undisputed fact
that one of the essential functions of the plaintiff’s position as a hospital resident was to “provide
safe and appropriate care for patients,” the district court determined that the plaintiff could not
perform the essential functions of his position with or without reasonable accommodation. As in
this case, in Shin, the plaintiff’s supervisors believed that the plaintiff exercised poor judgment in
critical situations, failed to check on changes in patients’ conditions, and required constant
supervision. The Fourth Circuit affirmed summary judgment, concluding that “no reasonable
jury could find that, while at UNMSC, Dr. Shin provided safe and appropriate care for patients
with efficiency and reasonable autonomy.” Id. at 481; see also Jakubowski v. Christ Hospital,
627 F.3d 195 (6th Cir. 2010) (upholding summary judgment in favor of hospital against a
resident physician who had Asperger’s disorder and concluding that no reasonable
accommodations existed that would not pose an undue hardship on the hospital and/or a direct
threat to patient care). Based on the record in this case, the same can be said of Dr. Schwarz.5
The Fourth Circuit also upheld the district court’s determination that Dr. Shin’s proposed
accommodations were not reasonable: “the ADA does not require an employer to assign an employee to
permanent light duty * * * nor does it require an employer to reallocate job duties in order to change the
essential functions of a job.” Id. at 482. In that regard, the workload reduction that Dr. Shin sought was
in direct conflict with the residency educational goals designed to develop competency, which require
doctors to function at a level allowing complex problem solving, including simultaneously managing
multiple patient care situations and dealing with ambiguity. In noting those considerations, the Fourth
The other basis for Plaintiff's termination was his inappropriate and unprofessional
behavior. In is undisputed that Dr. Gamelli received reports about Plaintiff’s behavior from Dr.
Brewster, from the head nurse for the Burn Unit, Jeanie Leggett, and from other members of the
Burn Unit nursing staff.
In addition, Dr. Gamelli independently observed Plaintiff’s
inappropriate interactions with nurses, patients, students, resident staff and other members of the
What struck me about Dr. Schwarz was the continuous turmoil that seemed to
exist in his inner-personal relationships with various members of the team. There
were always actions that he was attempting to explain and attempting to have
them seen in another light; other than the light of reality. There was frequently a
need to apologize for things that had been said or done. Only in hindsight did he
seem to have some recognition of their inappropriateness * * * * His self-control
is poor at best and at times of relatively mild stress, it is wholly inadequate. His
ability for introspection and reflection is minimal * * * * His interpersonal skills
are simply way below the expectation of a professional and certainly that of a
Gamelli Dep. Ex. A, p. 2; Gamelli Dep. at 154: 13-157:8.
Plaintiff concedes that his behavior was “less than perfect” (Pl.’s Opp. at 6), but he
attributes his behavior to an unsuccessful effort to reduce his hours and to fatigue from
purportedly having to work more than 80 hours per week in some weeks. However, whether
Plaintiff attributes his behavior to a disability or to the number of hours he worked, or to
displeasure over being required to do a reintegration into clinical practice after being absent from
the profession for several years, is of no moment, because the ADA provides no bar to discipline
for misconduct. Pernice v. City of Chicago, 237 F.3d 783, 785 (7th Cir. 2001). Furthermore,
Defendant has presented expert testimony that the ability to effectively communicate with
professional colleagues is essential to safe patient care, and Plaintiff has not refuted Defendant’s
Circuit expressed reluctance to substitute its judgment on the standards for professional and academic
achievement. This Court echoes the Fourth Circuit’s views, which apply equally in this case.
evidence or demonstrated that he was able to perform this function to the satisfaction of his
The undisputed facts demonstrate that Dr. Gamelli made the decision to terminate
Plaintiff's employment based on his assessment that Plaintiff failed to provide safe and effective
patient care, and engaged in unprofessional conduct including harassment and abuse of other
hospital staff. Plaintiff can disagree with that decision, but he has not submitted any evidence
that Dr. Gamelli made his decision on any other basis. To show pretext, a plaintiff must show
more than that the defendant’s decision was “mistaken, ill considered or foolish” and as long as
the employer honestly believes those reasons, pretext has not been shown. Bodenstab v. County
of Cook, 569 F.3d 651, 657 (7th Cir. 2009) (affirming summary judgment on the plaintiff
physician’s ADA claims); see also Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.
2006). Here, Plaintiff relies upon his unsupported speculation that he was terminated because
“they thought he was on drugs” (Pl.’s Opp. at 6), but Plaintiff has not presented any evidence
that Dr. Gamelli had any such concerns. Furthermore, neither Dr. Brewster nor the nurses who
reported to Dr. Gamelli on Plaintiff’s performance and behavior expressed any such concern.
Rather, Dr. Gamelli’s focus was on Plaintiff’s ability to “attest to his clinical skills, judgment and
Notably, Plaintiff’s misbehavior disqualifying him as an individual with a disability under the ADA is
further evidenced by his employment history subsequent to Loyola. One of Plaintiff's subsequent
employers required him to sign a form after he had been working there for over a year, agreeing to
interact with all staff in a professional and respectful manner and to operate within the hospital’s policies
and procedures. Plaintiff’s employment was terminated shortly thereafter, with instructions to not return
during the three-month notice period. Another employment relationship ended after just one month, and
the employer testified that he would have fired Plaintiff if they had been unable to reach a mutual
agreement for the employment to end. Still another employer testified that he believed Plaintiff’s
professional judgment, performance, and behavior endangered patient safety, and he reported Plaintiff to
the Michigan Board of Medicine. In the three years between August 2007-August 2010, Plaintiff held 10
different employment positions. Although the Court’s conclusions in this case are based on the fact that
Plaintiff failed to demonstrate that he was qualified for the position of a surgical resident at Loyola (with
or without reasonable accommodations)—and not on what transpired after Plaintiff left Loyola—this
history is consistent with Loyola’s assessment of whether Plaintiff ever was (or is) capable of performing
in accordance with LUMC’s legitimate job requirements.
compatibility to our program.” A reasonable fact-finder could not possibly infer that Loyola
“hastily discharged Plaintiff because they feared he had relapsed” into substance abuse (Pl.’s
Opp. at 6) because there is no evidence upon which any such inference could be made. As the
Seventh Circuit has stated: “[O]ur favor toward the nonmoving party does not extend to drawing
‘[i]nferences that are supported by only speculation or conjecture.’ Thus, we have explained that
the nonmoving party ‘must do more than raise some metaphysical doubt as to the material facts;
[she] must come forward with specific facts showing that there is a genuine issue for trial.’”
Argyropoulos v. City of Alton, 359 F.3d 724, 732 (7th Cir. 2008). The mere fact that Loyola was
aware that Plaintiff had a substance abuse problem at some point in the past is not evidence that
it regarded him as disabled. See, e.g., Tate v. Illinois Workers’ Compensation Commission, 2011
WL 1738575, at *6 (N.D. Ill. May 12, 2011) (“Tate fails to appreciate that IWCC’s awareness of
her medical condition is not sufficient to establish that IWCC believed Tate was disabled or that
her medical condition substantially limited her ability to work.”). While Dr. Gamelli knew of
Plaintiff’s prior history of substance abuse, Plaintiff has not presented any evidence that Dr.
Gamelli believed Plaintiff had lapsed or was about to lapse. Nor is there any evidence that Dr.
Gamelli made his decision to terminate Plaintiff's employment based on anything other than his
assessment that Plaintiff lacked the necessary knowledge and judgment to be a surgeon, and
exhibited behavior which could not be tolerated.7
Plaintiff makes no effort to rebut the cases cited by Loyola in which summary judgment on ADA
claims was granted in similar circumstances, i.e., where the defendant hospital terminated the
employment of a resident physician for performance and/or behavior problems and the appellate court
affirmed the trial court’s grant of summary judgment because the plaintiff failed to establish that he was a
qualified individual with a disability. See Def. Memo at 9-10; Shin, 369 Fed. Appx. 472 (4th Cir. 2010);
Jakubowski, 627 F.3d 195 (6th Cir. 2010).
In the absence of evidence and case law, Plaintiff makes the argument that pretext can be
established by Loyola’s purported failure to follow its own progressive discipline policies. The
fundamental flaw in this argument is that it is contradicted by evidence, namely that Loyola’s
policy for “Corrective Disciplinary Action” expressly allows for termination at any stage of the
disciplinary process based on the circumstances:
Initiation of disciplinary action shall be the province of the program director or
the Chief of Staff. Residents may be subject to written warning, suspension or
termination. Discipline may be progressive, in that it follows the order listed
below. However, depending upon the severity of an incident or extenuating
circumstances, discipline may begin at any stage, including termination.
Furthermore, Dr. Gamelli testified: “Progressive discipline? This is not about discipline. This is
about training * * * * I am trying to determine how if someone is capable of doing the kind of
work that a surgeon needs to be capable of doing.” Gamelli Dep. at 36:12-16. Defendant has
put forth evidence that Plaintiff was not meeting the requirements of his provisional residency
program and Plaintiff has not rebutted this evidence with his own evidence demonstrating that
this is a lie and that he actually was terminated for discriminatory reasons.8
Finally, to the extent that Plaintiff is attempting to proceed on his federal retaliation
claim, it fails. The one paragraph devoted to a retaliation claim in Plaintiff’s response brief
sheds little light on his allegations, but a generous reading of Plaintiff’s response suggests that he
claims that he was retaliated against for either complaining about the number of hours that he
was required to work or requesting that he work fewer hours. The evidence establishes that Dr.
Gamelli—who made the decision to end Plaintiff’s employment—terminated Plaintiff’s
employment solely because his inability to handle the rigors of the position and his poor
performance and behavior.
Furthermore, Plaintiff has not presented any evidence that Dr.
In addition to failing to provide sufficient evidence to rebut Defendant’s evidence, Plaintiff’s two pages
of legal analysis—covering his seven claims—falls well short of the mark.
Gamelli was even aware of any complaints by Plaintiff about his hours. Likewise, Dr. Brewster,
who recommended to Dr. Gamelli that Plaintiff’s employment be terminated, testified that
Plaintiff did not express any concern about the hours that he was working. In other words,
neither the person who made the termination decision, Dr. Gamelli, nor the person who
recommended that decision be made, Dr. Brewster, was aware of any concern or complaint by
Plaintiff about the number of hours he was working. Accordingly, there is no causal link
between any complaint that Plaintiff allegedly made about his hours and his termination, and
thus no reasonable basis for a fact-finder to infer retaliation on that basis. Thus,. See also
Bodenstab v. Cook County, 569 F.3d 651, 659 (7th Cir. 1999) (concluding that even if
“Bodenstab engaged in protected activities, he did not present sufficient evidence that the
defendants fired him because he engaged in those activities”).
State Law Claims
Based on the analysis set forth above, all of Plaintiff’s federal claims (Counts I through
V, which were brought pursuant to the ADA) are subject to dismissal. Because the Court has
granted summary judgment as to the only claims over which it has original jurisdiction, it must
now address whether to retain jurisdiction over the remaining state law claims. See 28 U.S.C.
§ 1367(c)(3). The Seventh Circuit consistently has stated that “it is well-established law of this
circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever
all federal claims have been dismissed prior to trial.” Groce v. Eli Lilly, 193 F.3d 496, 501 (7th
Cir. 1999); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995); Brazinski v. Amoco
Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993).
Finding no justification for
departing from that “usual practice”9 in this case, the Court dismisses without prejudice the state
law claims asserted in Counts VI and VII.
For the foregoing reasons, the Court grants summary judgment  for the Defendant
and against Plaintiff on Counts I, II, III, IV, and V. The Court dismisses Counts VI and VII
without prejudice to re-filing in state court, if Plaintiff so chooses. This case is terminated and
judgment is entered in favor of Defendant on Counts I, II, III, IV and V.
Dated: June 11, 2012
Robert M. Dow, Jr.
United States District Judge
In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir. 1994), the Seventh Circuit noted that
there occasionally are “unusual cases in which the balance of factors to be considered under the pendent
jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point to a federal decision
of the state-law claims on the merits.” The first example that the Court discussed occurs “when the
statute of limitations has run on the pendent claim, precluding the filing of a separate suit in state court.”
Id. at 1251. That concern is not present here, however, because Illinois law gives Plaintiff one year from
the dismissal on jurisdictional grounds of state law claims in federal court in which to refile those claims
in state court. See 735 ILCS 5/13-217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir. 2008).
Dismissal without prejudice also is appropriate here because substantial judicial resources have not been
committed to the state law counts of Plaintiff’s complaint. Wright, 29 F.3d at 1251. Finally, although
Plaintiff’s state law claims appear to lack merit, it is not “absolutely clear how the pendent claims can be
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