United States District Court, N.D. Indiana, Fort Wayne Division
ROGER L. EIB, Plaintiff,
MARION GENERAL HOSPITAL, INC., Defendant.
OPINION AND ORDER
William C. Lee, Judge
matter is before the Court on the motion for summary judgment
filed by Defendant Marion General Hospital (ECF 31).
Plaintiff Roger Eib filed a response in opposition (ECF 35)
and Marion Hospital filed a reply (ECF 37). For the reasons
explained below, the motion is GRANTED in part and DENIED in
Eib filed this lawsuit against Marion General Hospital, his
former employer, alleging age discrimination. Amended
Complaint (ECF 11). Eib alleges that “Defendant Marion
General Hospital . . . discriminated against and created a
hostile work environment with respect to its former employee,
Plaintiff Roger L. Eib . . . on the basis of his age and
retaliated against Mr. Eib for opposing said discrimination,
all in violation of the Age Discrimination in Employment
Act[.]” Plaintiff's Response in Opposition, p. 1.
Eib explains that he was hired by Marion General in 1977
“full-time . . . in the position of Emergency Medical
Technician.” Amended Complaint, p. 2. He was 22 years
old at the time. Id. Three years later, Eib
“became certified as a paramedic . . . [and] began
working for MGH in the position of Paramedic. Within
approximately five years . . . Mr. Eib was promoted to the
position of Supervisor within the Ambulance Department of
MGH.” Id. Many years later, “[a]fter Mr.
Eib came to be forty years of age, MGH began a pattern of
discriminatory actions directed at Mr. Eib because of his age
including, but not limited to, pretextual disciplinary
action. The pattern of discriminatory actions directed at Mr.
Eib by MGH created an on-going hostile work
environment.” Id. Eib further alleges that his
“job title was changed several times between his
promotion to the position of Supervisor and September of 2013
at which time his job title was Unit Shift Manager, though
his job duties and responsibilities were substantially
unchanged.” Id. Eib claims that on September
26, 2013, he “was demoted from his position as Unit
Shift Manager to Paramedic . . . [and] [t]he position of Unit
Manager was filled by an employee substantially younger than
Mr. Eib.” Id., p. 3. Jumping ahead several
months, Eib contends that after he was demoted “he
began to be mandated to work overtime immediately after the
end of his regularly scheduled shift at a significantly
increased rate and significantly more often than similarly
situated employees. Between December of 2014 and March of
2016 Mr. Eib was mandated to work past the end of his regular
shift more than three (3) times as often as the average for
employees of the Ambulance Department and nearly twice as
often as the next most frequently mandated employee.”
Plaintiff's Response in Opposition, p. 10. Eib alleges that
“[o]n or about April 26, 2016, Mr. Eib was the subject
of a three day unpaid disciplinary suspension due to his age
. . . [and] [o]n or about August 17, 2016, Mr. Eib was the
subject of an indefinite paid suspension due to his
age.” Amended Complaint, p. 3. Eib filed a charge of
discrimination against MGH with the Equal Employment
Opportunity Commission on September 26, 2016. Id.
Eib alleges that he was fired the very next day when he
“attended a meeting with representatives of MGH during
which Mr. Eib stated that he had filed the above-referenced
charge[.]” Id., p. 4. Eib then filed a second
charge of discrimination on September 27, 2016, alleging that
his termination was in retaliation for having filed his first
charge. Id. Eib states that “[o]n or about
June 14, 2017, the EEOC issued a Notice of Right to Sue in
each of the two claims of discrimination filed by Mr. Eib
against MGH[.]” Id. Eib attached copies of
these Right to Sue letters to his Complaint. See ECF
11-1 and 11-2. Eib seeks “compensatory damages-to
include back pay, [front] pay, and the value of lost benefits
. . . liquidated damages in an amount equal to the determined
compensatory damages . . . punitive damages in an amount of
$33, 390, 000.00 . . . [and] all reasonable litigation costs
and attorney fees[.]” Id., p. 5.
Summary judgment standard.
judgment is appropriate when the record shows 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); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Disputes concerning
material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In deciding whether genuine issues of
material fact exist, the court construes all facts in a light
most favorable to the non-moving party and draws all
reasonable inferences in favor of the non-moving party.
See Id. at 255. However, neither the “mere
existence of some alleged factual dispute between the
parties, ” id. at 247, nor the existence of
“some metaphysical doubt as to the material facts,
” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), will defeat a motion
for summary judgment. Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
judgment is not a substitute for a trial on the merits nor is
it a vehicle for resolving factual disputes. Waldridge v.
Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore, after drawing all reasonable inferences from the
facts in favor of the non-movant, if genuine doubts remain
and a reasonable fact-finder could find for the party
opposing the motion, summary judgment is inappropriate.
See Shields Enterprises, Inc. v. First Chicago
Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v.
City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).
However, if it is clear that a plaintiff will be unable to
satisfy the legal requirements necessary to establish his or
her case, summary judgment is not only appropriate, but
mandated. See Celotex, 477 U.S. at 322; Ziliak
v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003).
“[Speculation and conjecture” also cannot defeat
a motion for summary judgment. Cooney v. Casady, 735
F.3d 514, 519 (7th Cir. 2013). In addition, not all factual
disputes will preclude the entry of summary judgment, only
those that “could affect the outcome of the suit under
governing law.” Outlaw v. Newkirk, 259 F.3d
833, 837 (7th Cir. 2001) (citation omitted).
Seventh Circuit has explained many times and reiterated
recently, a district court's task on summary judgment is
On summary judgment a court may not make credibility
determinations, weigh the evidence, or decide which
inferences to draw from the facts; these are jobs for a
factfinder. Rather, the 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. Summary
judgment is not appropriate if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. We must look therefore at the evidence as a jury
might, construing the record in the light most favorable to
the nonmovant and avoiding the temptation to decide which
party's version of the facts is more likely true. As we
have said many times, summary judgment cannot be used to
resolve swearing contests between litigants.
Johnson v. Advocate Health & Hosps. Corp., 892
F.3d 887, 893 (7th Cir. 2018) (quoting Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003)).
Age Discrimination in Employment Act.
ADEA provides, in pertinent part, as follows:
It shall be unlawful for an employer-
(1) to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual's age;
. . .
It shall be unlawful for an employer to discriminate against
any of his employees or applicants for employment . . .
because such individual, member or applicant for membership
has opposed any practice made unlawful by this section, or
because such individual, member or applicant for membership
has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or litigation
under this chapter.
29 U.S.C. § 623(a)(1) and (d). And as this Court
[T]he ADEA makes it unlawful for an employer to take adverse
action against an employee who is forty years or older
“because of such individual's age.” 29 U.S.C.
§§ 623(a)(1), 631(a). Age must be “the
‘reason' that the employer decided to act.”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009). Therefore, “a plaintiff bringing a
disparate-treatment claim pursuant to the ADEA must prove, by
a preponderance of the evidence, that age was the
‘but-for' cause of the challenged adverse
employment action.” Id. at 180. In this sense,
the ADEA is somewhat narrower than Title VII. Carson v.
Lake Cty. Ind., 865 F.3d 526, 532 (7th Cir. 2017).
Hope v. ArcelorMittal Burns Harbor, LLC, 2019 WL
450700, at *11 (N.D. Ind. Feb. 4, 2019). When called upon to
assess the merits of a claim, this Court is charged with
examining the evidence “as a whole” to determine
if a reasonable jury could conclude that a plaintiff's
age was the reason he suffered an adverse employment action.
The Seventh Circuit, in the case of Ortiz v. Werner
Enters., Inc., clarified the standard of review
applicable to employment discrimination cases. Another
district court summarized the Seventh Circuit's holding
in Ortiz as follows:
Courts previously spoke of proceeding under an indirect or
direct method to establish discrimination, but the Seventh
Circuit has instructed that instead of using such tests, the
Court should consider the evidence “as a whole”
to determine whether it “would permit a reasonable
factfinder to conclude that the plaintiff's [race,
religion, or national origin] caused the [adverse employment
action].” Ortiz v. Werner Enters., Inc., 834
F.3d 760, 765 (7th Cir. 2016). The Court must determine
“whether a reasonable factfinder could ‘conclude
that [Mahran's] proscribed factor caused the [adverse
employment action].'” Brown v. DS Servs. of
Am., Inc., 246 F.Supp.3d 1206, 1216 (N.D. Ill. 2017)
(quoting Ortiz, 834 F.3d at 765). This does not
mean, however, that the Court cannot consider the traditional
burden-shifting test laid out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), under which Mahran attempts to demonstrate that he
has the evidence needed to survive summary judgment.
Ortiz, 834 F.3d at 766 (noting that its decision
does not overrule McDonnell Douglas). The Court
considers the evidence through the McDonnell Douglas
framework and then turns to a cumulative review of the
evidence to determine whether a reasonable factfinder could
determine that Mahran's religion or national origin
caused the complained-of adverse actions. See David v.
Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216,
224 (7th Cir. 2017).
Mahran v. Advocate Health & Hosps. Corp., 2019
WL 952131, at *9 (N.D. Ill. Feb. 26, 2019).
McDonnell Douglas burden-shifting method
“allows a plaintiff to establish a prima
facie case of discrimination and then rebut a
defendant's stated non-discriminatory reason for the
termination.” Rivera v. WestRock Servs. Inc.,
2018 WL 6528017, at *3 (N.D. Ill.Dec. 12, 2018) (citing
David, 846 F.3d at 224). A plaintiff may establish a
prima facie case by presenting facts that 1) he
belongs to a protected class, 2) he was meeting his
employer's legitimate expectations, 3) he suffered an
adverse employment action, and 4) his employer treated
similarly situated, younger employees more favorably.
Id. If a plaintiff does this, then the defendant
employer “must articulate a legitimate,
nondiscriminatory reason” for an adverse employment
action, “at which point the burden shifts back”
to the plaintiff to submit evidence showing that the
employer's reason is pretextual. Id. (quoting
Brown v. DS Services of America, Inc., 246 F.Supp.3d
1206, 1217 (N.D. Ill. 2017)).
stated above, Eib contends that MGH discriminated against him
on the basis of his age on several occasions over the span of
several years, and that those incidents were part of a
continuing pattern of discriminatory conduct. MGH insists
that Eib's attempts to characterize discrete acts of
alleged discrimination as a continuing violation is really an
attempt to evade the fact that most of his claims are
time-barred. MGH argues that those claims that are not
time-barred, including Eib's hostile environment claim
and retaliation claim, fail to survive summary judgment
because Eib cannot establish a prima facie case
under McDonnell Douglas.
correctly notes that “a charge of discrimination under
the ADEA must be filed within 180 days of the alleged adverse
employment action.” Defendant's Brief in Support
(ECF 32), p. 4 (citations omitted). MGH contends Eib failed
to do that, arguing as follows:
Eib's initial EEOC charge was filed on September 26,
2016. . . . In that charge, Eib claimed that the
Hospital's alleged unlawful employment practices
included: 1) harassment and discrimination through January of
2016 based on the assignment of overtime; 2) discriminatorily
[sic] “demoting” Eib from his charge paramedic
position in September of 2013; and 3) harassment and
discrimination in the form of a disciplinary suspension on
April 26, 2016 and an investigatory suspension on August 17,
2016. . . . All of Eib's claims, other than item 3 above,
were untimely filed and therefore subject to dismissal.
Id. MGH notes that “[f]or any alleged
harassing or discriminatory overtime assignments that took
place through January 31, 2016[, ] to be properly brought
before this Court, the EEOC charge would had to have been
filed on or before July 29, 2016-180 days after the last day
of January, 2016. . . . The charge was actually filed on
September 26, 2016, which is nearly two months too late to
include such claims.” Id., p. 5. MGH also
insists that “[s]ignificantly more untimely is
Eib's claim that he was discriminatorily [sic] demoted in
September of 2013. . . . Eib was more than two years too late
for the filing of that claim. Accordingly, Eib's claims
that he was demoted from his charge paramedic position based
on his age in September of 2013 and his claim that his
overtime assignments through January of 2016 were harassing
and discriminatory are untimely and subject to
response, Eib does not dispute that an ADEA claim must be
filed with the EEOC within 180 days of the alleged
discriminatory act, but insists that the continuing violation
doctrine applies and breathes life into claims that would
otherwise be time-barred. Plaintiff's Response in
Opposition (ECF 35), p. 5. Eib's argument is as follows:
The Supreme Court . . . has recognized the continuing
violation theory under which a continuing pattern of
discrimination is actionable so long as a present violation
is demonstrated. United Air Lines, Inc. v. Evans,
431 U.S. 553 (1977). Since this recognition by the Supreme
Court, the Seventh Circuit Court of Appeals has discussed
three theories under which a plaintiff may establish a
continuing violation: 1) when an employer makes employment
decisions over time that make it difficult for the employee
to determine the actual date of discrimination, 2) an
employer's express, openly espoused policy that is
alleged to be discriminatory, and 3) where discrete acts of
discrimination are part of an ongoing pattern and at least
one of the discrete acts occurred within the relevant
Id. (citing Stewart v. CPC International,
Inc., 679 F.2d 117, 120-21 (7th Cir. 1982)). Eib states
that “[i]t is the third enumerated theory upon which
Mr. Eib relies in bringing forth allegations relating to
discrete acts occurring more than 180 day[s] prior to his
filing of charges with the EEOC.” Id., pp.
argues that “[t]he continuing violation exception does
not apply to Eib's claims.” Defendant's Reply