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Circuit Court finds no age discrimination

Jennifer Nelson
January 1, 2008
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A doctor whose job was terminated as part of hospital restructuring didn't provide enough evidence to show he was let go based on his age, the 7th Circuit Court of Appeals ruled today.

In Laverne Tubergen v. St. Vincent Hospital and Health Care Center, Inc., No. 06-4304, Dr. Tubergen filed a discrimination complaint against St. Vincent under the Age Discrimination in Employment Act of 1967. In an effort to streamline its operations and become more efficient, the hospital hired James Houser as its chief operating officer. Before restructuring, St. Vincent had a "service line" for each of the nine medical specialties it provided, and each service line was run by a medical director, who was a physician, and an executive director that was a nurse.

Tubergen - a 65-year-old ear, nose, and throat doctor - served as a medical director. He had a two-year contract for part-time employment with the hospital that could be terminated by either party after 90 days written notice.

Houser determined the service-line structure was an inefficient way to run the hospital and abolished the system. The structure was replaced with a similar dual-leadership role that spread across several clinical specialties. More than 300 positions were eliminated as a result, including Tubergen's job. Houser met with Tubergen to tell him his job was eliminated as a result of the cutbacks and that he was welcome to apply for any of the newly created positions. Tubergen never applied for any positions because he believed the hospital would not take him seriously.

A co-worker told Tubergen that she had been told by another co-worker that Houser had commented he was "getting rid of the old guard." Tubergen took that statement to mean the older employees at the hospital, even though Houser made the comment in regards to the children's hospital personnel. Tubergen filed a charge of discrimination with the Equal Employment Opportunity Commission in late 2003 and filed suit in the U.S. District Court, Southern District of Indiana in 2004. The District Court granted summary judgment in favor of the hospital.

The 7th Circuit affirmed the District Court's decision, finding Tubergen provided insufficient evidence to back his age discrimination claim. Tubergen argued Houser's alleged comments about "the old guard" could give rise to a reasonable inference of age discrimination. The record showed the co-worker who overheard the comment noted it was in reference to the children's hospital, where Tubergen did not work. Also, it is possible to not take the reference of "the old guard" to literally mean "old" people, and it's more likely in line with getting rid of the previous structure, not individuals, as Houser explained he meant it in his deposition, wrote Judge Joel Flaum.

The record showed Tubergen was considered for other positions; however, he was not a qualified candidate. Tubergen also made no effort to apply for other jobs within the hospital, wrote Judge Flaum.

In addition, those who remained with the hospital after the restructuring varied in age, and the ages of the more than 300 people whose positions were eliminated also varied.

"Overall, the record reflects that Tubergen cannot employ the direct method to make a case for age discrimination," wrote Judge Flaum, noting Tubergen could also try to pursue his claim with the indirect method.

However, his claim would also fail the method's four-prong test, which requires evidence that other similarly situated employees who were not members of Tubergen's protected class or were substantially younger were treated more favorably. The hospital provided both its younger and older employees the same placement opportunities after the restructuring, he wrote.
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