In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4304
LAVERNE TUBERGEN,
Plaintiff-Appellant,
v.
ST. VINCENT HOSPITAL AND HEALTH CARE CENTER, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana.
No. 1:04-cv-01765-JDT-WTL—John Daniel Tinder, Judge.
____________
ARGUED NOVEMBER 6, 2007—DECIDED FEBRUARY 21, 2008
____________
Before FLAUM, KANNE, ROVNER, Circuit Judges.
FLAUM, Circuit Judge. Laverne Tubergen alleges that
St. Vincent Hospital and Health Care Center (“St. Vin-
cent”) discharged him on the basis of age, in violation of
the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 621, et seq. (“ADEA”). The district court granted
summary judgment in favor of St. Vincent, and we affirm.
I. Background
Tubergen is a 65 year-old ear, nose and throat doctor. He
has utilized his skills as a physician and a business
2 No. 06-4304
administrator1 in a number of capacities, including work
as an Army flight surgeon, a tenured professor, and an
operator of a private business enterprise. From March
1997 through June 20, 2004, he was employed by St.
Vincent under a contract as a Service Line Medical
Director.
St. Vincent had what it referred to as a “service line” for
each of the medical specialties that it provided. There
were nine Service Lines in total. Each service line was
characterized by dual leadership, in the sense that each
was run by one physician, the Medical Director, and one
nurse administrator, the Executive Director. The Med-
ical and Executive Directors for a particular Service
Line specialized in that area of clinical services. They
were responsible for all of the business-related functions
of their particular specialty, including operational bud-
gets, strategic planning, clinical management, staffing
and scheduling of employees, marketing, and employee
relations. Medical Directors tended to be employed on a
part-time basis, and focused more on physician manage-
ment. Tubergen was employed as the Medical Director
of the Surgical Specialities Service Line and the
Musculoskeletal Service Line. Most recently, he was
employed on a two-year contract for part-time employ-
ment set to expire on June 30, 2004. However, either
party could prematurely terminate the agreement after
ninety days’ written notice.
In late 2002, St. Vincent realized that in order to re-
main competitive, it needed to streamline its operations
and organizational structure with an eye towards becom-
ing more efficient. In December 2002, it hired James
Houser as its Chief Operating Officer with a mandate
to improve operations. Houser had previous experience
1
In addition to his M.D., Tubergen also holds an M.B.A.
No. 06-4304 3
with reorganizations and reductions-in-force (“RIF”). He
hired two outside consulting firms and constructed a
steering committee of twenty St. Vincent employees to
help guide the analysis and implementation. Effectively,
Houser had ultimate authority over the decisions that
were made. At the outset, Houser hypothesized that the
Service Line structure was an expensive way to run a
hospital, and he held meetings with the various Service
Line heads in order to discuss the issue. Dr. Michael
Wiemann and nurse Jean Meyer, Medical and Executive
Directors of the Oncology Service Line, requested a
meeting with Houser to discuss the potential for reor-
ganization. They were concerned about the possibility
of losing their jobs, and they offered to help Houser
with his project. As a result, he made them a part of
his steering team. Tubergen never approached anyone
about assisting with the reorganization because he be-
lieved that his Service Line was run well, and he gen-
erally believed in the system.2
After researching the issue, Houser concluded that the
Service Line structure was inefficient in that it created
redundant costs across various business functions. It
turns out that running the hospital as nine mini-organi-
zations made less sense than running it as one whole
enterprise. Why, for instance, would you have nine
groups independently working on a marketing strategy
when this task could instead be consolidated across the
various groups? Thus a central element of the RIF was
that the Service Line management structure was to
be abolished and clinical services were to be reorganized
with an eye towards centralizing certain core business
functions. The structure was replaced with a similar dual
2
Tubergen did unsuccessfully apply for the position of hos-
pital president.
4 No. 06-4304
leadership role that spread across the several clinical
specialties as opposed to having a Medical and Executive
Director for each specialty. The new Chief Medical Officer
and Chief Nursing Officer positions were ultimately
offered to Wiemann and Meyer. Several new positions
were created that would report to these two officers.
With respect to Tubergen’s former job, his duties were
divided between approximately 24 individuals. After
certain positions were eliminated and others were
created, Houser made the determinations as to who
would fill the new positions.
The RIF eliminated over 300 positions in total. On June
20, 2003, St. Vincent communicated the results of the
RIF to the various parties affected by it. Houser met in
person with some of the individuals to let them know the
news, including Tubergen, Cindy Leigh, Linda Hermann,
and Mary Ann Scott. He told Tubergen that “this has
nothing to do with your performance. Your job has been
eliminated.” He added that “we welcome you to review
at any time the St. Vincent job posting and apply for
any vacant position for which you are qualified.” Tubergen
did not apply for any of these new positions because, in
his view, the efforts would have been futile as St. Vincent
would not consider him seriously. Shortly after they
were fired, Tubergen and Scott were discussing the
situation, and Scott mentioned that Dr. Laws told her
that Houser had told him that he was “getting rid of the
old guard.” Tubergen then spoke with Laws regarding this
comment and Laws told him that Houser made the
statement “with respect to the firing of [Scott, Hermann
and Leigh].” Specifically, Laws recalled “sitting in
[Houser’s] office at a time before the RIF when [Houser]
informed [Laws] that Mary Ann Scott was going to be
terminated and it was the beginning of getting rid of the
old guard.” Further, Laws stated that the “context of
the meeting was . . . what was going to happen to the
No. 06-4304 5
children’s hospital personnel.” Houser himself does not
remember making the statement, but noted that if he did
make it, “it was referencing structure, not
people . . . it would have been in the context of a change
in leadership . . . moving away from one model and into
another model.”
On December 5, 2003, Tubergen filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission (“EEOC”). On August 2, 2004, he received
his right to sue letter from the EEOC and then filed a
complaint in the district court. He alleges that he was
wrongfully terminated because of his age in violation of
the ADEA. After discovery, the district court ruled in
favor of St. Vincent and granted its summary judgment
motion.
II. Discussion
On appeal, Tubergen makes two separate but related
arguments. First, he contends that the district court erred
in determining that Houser’s alleged ageist statements
failed to give rise to a reasonable inference of age dis-
crimination. Second, he maintains that the district court
incorrectly concluded that he had failed to establish that
any similarly situated, substantially younger employees
received better treatment. We analyze each issue in turn.
A
We review the district court’s grant of summary judg-
ment de novo. Jackson v. County of Racine, 474 F.3d 493,
498 (7th Cir. 2007). Summary judgment is appropriate
when there are no genuine issues as to any material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). While we construe all facts and reasonable infer-
6 No. 06-4304
ences in favor of the nonmoving party, “[i]nferences that
are supported by only speculation or conjecture will not
defeat a summary judgment motion.” McDonald v. Vill. of
Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004).
The ADEA seeks to protect those over the age of
forty from age discrimination in the workplace. A plain-
tiff suing under this statute may proceed with his case
in one of two ways. The first avenue, dubbed the direct
method, requires that the plaintiff adduce either “direct or
circumstantial evidence that the employer’s decision to
take the adverse job action was motivated by an impermis-
sible purpose . . . .” Adams v. Wal-Mart Stores, Inc., 324
F.3d. 935, 938-39 (7th Cir. 2003). Circumstantial evid-
ence can come in the form of suspicious timing or be-
havior, or evidence that younger but similarly situated
employees received better treatment. Troupe v. May Dep’t
Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).
The district court is correct in observing that there is
no direct evidence that Tubergen was eliminated due to
his age. Tubergen argues that the “old guard” comment
was sufficient, at least at the summary judgment stage,
to show direct proof of discrimination. However, the rec-
ord indicates that Dr. Laws, who heard the comment,
believed that the statement was made with regard to
children’s hospital staffing—an area where Tubergen did
not work. To be sure, Tubergen’s name was not men-
tioned in the conversation, nor was it used in a context
that could include him.
Tubergen contends in the alternative that the state-
ment provides circumstantial evidence of discrimination,
particularly since it was made close to the time of his
termination. It is pellucid, however, that the entire service
line structure was revamped and all Medical Director
positions were eliminated irrespective of age. Also, over
300 employees were eliminated as a part of the RIF,
No. 06-4304 7
which makes it highly unlikely that the comment was
a reflection of age-based animus or that the RIF was a
ruse to allow St. Vincent to rid itself of its senescent
employees. Even if we exclude context for a moment, in a
previous case, we held that “[n]o weight can be attached
to an overheard comment that [the plaintiff] does not like
to promote ‘good old boys,’ since any competent user of
the English . . . language knows that to be a good old boy
one need not be old, or for that matter good.” Lindsey v.
Baxter Healthcare Corp., 962 F.2d 586, 588 (7th Cir. 1992).
So too here, we know that members of the “old guard” need
not be old.3 The term’s etymology, referring to the Imperial
Guard of Napoleon I, and its definition, describing a
conservative faction, lend credence to the idea that it
ascribes a quality to a structure, not the individuals
that compose it. THE AMERICAN HERITAGE DICTIONARY OF
THE ENGLISH LANGUAGE 1224 (4th ed. 2000). This is
consistent with how Houser explained his comments
during his deposition. Furthermore, as we have already
noted, the context in which the comment was made makes
it even more unlikely that Houser was thinking about
Tubergen at all, much less his age.
Independent of the “old guard” comment, Tubergen
contends that younger administrators whose positions
were eliminated received automatic consideration for
employment under the new structure. But it is clear
from the record that Houser and the consultants consid-
ered Tubergen for newly created positions. They deter-
mined that he was not the best person to fill these posi-
tions, and that he showed little interest in the new struc-
ture. Indeed, Tubergen did not even apply for any of the
newly created positions.
3
For completeness, we should note that they also need not be
guards.
8 No. 06-4304
Tubergen also argues that other former Medical and
Executive Directors obtained employment under the new
structure while he did not. The district court is correct
in concluding that Executive Directors are not appro-
priate comparators because these positions are filled by
nurses, and they require a different educational back-
ground and skill set. See Burks v. Wis. Dep’t of Transp.,
464 F.3d 744, 751 (7th Cir. 2006). With respect to the
other medical directors, their attributes and outcomes
do not help Tubergen’s case. Only five of the individuals
who held Medical Director positions remained with St.
Vincent after the RIF. Only one of these five was more
than ten years younger than Tubergen.4 Yet two who
were no longer employed after the RIF were more than
ten years younger than Tubergen.
Tubergen maintains that the set of individuals whose
outcomes we should examine should be larger than
St. Vincent Medical Directors. He does not adequately
explain why we should look beyond Medical Directors. But
even if we examine the comparators that Tubergen urges
us to use, he is still unable to make a claim. The first of
these individuals, Gary Fammartino (age 47), was placed
in a new vice president position charged with ordering
medical products. He was previously a respiratory thera-
pist. Tubergen was not considered for this position be-
cause it emphasized business expertise related to supply
chain activities, which he did not possess. The second
individual, Dr. Spanenburg (age 36), was retained as
Case Management Medical Director. Tubergen simply
asserts that he was better qualified for the job, but there
4
Under 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. Bennington
v. Caterpillar, Inc., 275 F.3d 654, 659 (7th Cir. 2001).
No. 06-4304 9
is no indication that St. Vincent held the same belief,
which is what is most relevant. Further, this position was
not available until after Tubergen was eliminated, and he
did not apply for this (or any other) newly created job. The
third individual, Dr. LeGrand (age 56), was appointed
to the position of Chief of Surgery. This comparison is not
useful because he is not substantially younger than
Tubergen, and, again, the position was not created until
after the initial job cuts. Finally, Dr. Roughraff (age
42), became Orthopedic Department Chair, which is
unilluminating because it is an elected position.
Overall, the record reflects that Tubergen cannot em-
ploy the direct method to make a case for age discrim-
ination. The “old guard” comment was made in reference
to a completely different group of individuals—those
working in the children’s hospital—and was likely to
refer to structure, as opposed to the age of the employees
being eliminated. Moreover, many employees—both young
and old—were eliminated and retained under the RIF.
Finally, any of the comparators that Tubergen seeks to
use as evidence of age discrimination are inapposite for
the various reasons detailed above.
Tubergen could eschew the direct method and instead
pursue his age discrimination claim through what we
refer to as the indirect method. To proceed under this
framework, Tubergen must prove that: (1) he was a
member of a 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 pro-
tected class or were substantially younger were treated
more favorably. Gordon v. United Airlines, Inc., 246 F.3d
878, 885-86 (7th Cir. 2001). It is only the fourth prong
that is at issue here, and we have articulated above
why Tubergen cannot leap over this hurdle. In this re-
structuring context, St. Vincent was required to provide
10 No. 06-4304
its older employees with the same placement oppor-
tunities as it provided its younger employees who were
subject to the RIF. Radue v. Kimberly-Clark Corp., 219
F.3d 612, 615 (7th Cir. 2000). Crucially, if the older
employee fails to take advantage of those opportunities,
they foreclose any claim of discrimination. Torry v.
Northrup Grumman Corp., 399 F.3d 876, 879 (7th Cir.
2005).
Because Tubergen also did not put forth evidence that
his failure to apply was caused by a discriminatory
practice, St. Vincent is not required to offer a legitimate
reason for its actions. See Sublett v. John Wiley & Sons,
Inc., 463 F.3d 731, 738-39 (7th Cir. 2006). Even so, St.
Vincent does provide such a explanation: it sought to
eliminate the entire Service Line structure in order to
streamline its operations. Tubergen provides no reason
to doubt the veracity of this claim, and it would be diffi-
cult for him to do so knowing that over 300 young and
old employees were eliminated and many young and old
employees were retained. He tries to argue that the
strategy did not cut costs, but this Court’s role is not
to measure the success of a given strategy. We must
simply ascertain whether St. Vincent believed that its
restructuring efforts would attain its stated goals, and
we see no reason to doubt that here.
No. 06-4304 11
III. Conclusion
For the foregoing reasons, we AFFIRM the entry of
summary judgment in favor of St. Vincent.
USCA-02-C-0072—2-21-08