Opinion
98 C 5050
February 17, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff, Mahmoud Hammoudah (Hammoudali), brings this employment discrimination action, alleging violations of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. He alleges that Rush-Presbyterian-St. Luke's Medical Center (Rush) discriminated against him on the basis of his national origin, religion and age by refusing to hire him for a therapeutic radiological physicist position. Defendant now moves for summary judgment. For the following reasons, the court grants the motion for summary judgment.
Although plaintiff, acting pro Se, did file a Local Rule 12 (N) response to defendant's Rule 12(M) statement of facts, much of his response was argument or non-responsive to the factual allegation defendant presented. The court has included factual issues from plaintiff's statement of additional facts where the cited record supported his assertions.
Rush is an acute care hospital and teaching and research institution in Chicago. James C.H. Chu is director of Rush's Section of Medical Physics in the Department of Radiation Oncology. Chu has held his current position since 1990 and is also a professor at Rush University College of Health Sciences and Rush Medical College, and chairman of Rush's Department of Medical Physics. His national origin is Taiwan and he has no religious affiliation. He was born July 6, 1948. Chu reports to V. Amod Saxena, chairman of the Department of Radiation Oncology. Saxena was born November 8, 1936, his national origin is India and his religion is Hindu.
In March 1997, Chu placed an advertisement in a professional society bulletin for a therapeutic radiological physicist position. The ad stated that the candidates needed a doctoral degree with appropriate professional certification. Candidates at senior levels were preferred.
Before placing the ad, Chu had offered the position to a professional acquaintance, Sou-Tung Chiu-Tsao. Chiu-Tsao had been the head of the Physics Division of the Department of Radiation Oncology at Henry Ford Hospital in Detroit since 1990, had continuously worked in the field since 1976, and had recent teaching and clinical experience as well as more than 50 published papers and abstracts. Chu knew that Chiu-Tsao was Chinese but did not know her religion or age. He believed her to be in her early 50s.
Chiu-Tsao interviewed at Rush in December 1996 with Chu, Saxena and three additional faculty members with expertise in medical physics. Two of these members were of U.S. origin and one was of Taiwan origin. Based on feedback from the other interviewers and his own impressions, and with Saxena's concurrence, Chu offered the position to Chiu-Tsao. She ultimately declined and Chu advertised the opening.
In response to the ad, Chu received letters of interest from 41 individuals, including plaintiff. Hammoudah had previously applied for therapeutic radiological physicist positions at Rush in 1992 and 1996. In 1997, he submitted the same resume he had submitted for the 1996 opening. Hammoudah has a Ph.D. in biophysics from the State University of New York at Buffalo, an M.S. in medical physics from Manitoba University, Manitoba, Canada, and a B.S. in physics and chemistry from Cairo University, Cairo, Egypt. His most recent employment at the time he submitted his resume in 1997 was at the King Abdulaziz Hospital in Jeddah, Saudi Arabia. Although Hammoudah claims he submitted a three-page list of his publications, Chu states that he never saw this list and Hammoudah's resume indicates only that he published "one dissertation, two theses, nine publications, [and] ten accepted abstracts." Hammoudah's national origin is Egyptian and his religion is Islam. He was born on October 27, 1938, making him 58 years old in March 1997.
After receiving the applications for the position, Chu scored each applicant on a scale of one to five points, with one point being the best and five points being the worst. He scored plaintiff a five-the worst rating-based on the following assessments: 1) plaintiff had no regular employment since June 1994; 2) he had not worked in the medical physics field since June 1994; 3) he had changed jobs nine times since 1980 and his longest period of employment was 4 1/2 years at a cancer treatment center in Indiana; 4) he had not taught since 1988; 5) his resume did not clearly indicate whether he had any clinical teaching experience; 6) Chu did not consider plaintiff's previous employers to be prestigious medical centers; and 7) the resume listed no publications.
At the time Chu scored plaintiff's resume, he also knew that plaintiff had recently worked as a gas station attendant. Chu did not consider this position indicative of competence as a therapeutic radiological physicist. Hammoudah alleges that Chu knew he had been ill with a major depression and was seeking to reenter the medical physics field.
Rush asserts that Chu interviewed two candidates for the position, Rulon Mayer and X. Allen Li. Chu knew from Mayer's resume that he was a U.S. citizen but did not know his national origin, age or religion. Li's resume indicated he was a Canadian citizen and that he was born in 1963. Most of the applicants' resumes did not list age, national origin, or religion although defendant points out that many of the applicants who were not chosen for interviews had names indicating an Asian/Pacific Islander national origin. At least two who did list their ages were younger than 40.
Hammoudah disputes this, claiming that the position statement defendant submitted to the EEOC indicated that four candidates were interviewed. The letter does list four candidates, one of whom was Chiu-Tsao. It appears that one candidate, David Mellenberg. was either considered for an interview or completed an interview but subsequently withdrew his name from consideration.
Mayer had been a senior physicist and assistant professor at Johns Hopkins Hospital and Medical School since 1990. Chu considered Johns Hopkins one of the premier medical and cancer treatment centers in the world. Mayer had graduate degrees from Brown University and his bachelors degree from Massachusetts Institute of Technology. He had published 38 articles, many of which Chu considered significant contributions to the medical physics field.
Li had been a radiation oncology physicist at Ottawa Regional Cancer Center in Ontario, Canada, since 1994. Since that time he had teaching and clinical experience in medical physics and had published or submitted 21 papers. Several of his papers related to the "Monte Carlo" computer technique, which simulates the interaction of radiation with matter and is used in the medical physics field to simulate a patient's reaction to radiation therapy. Chu claims that the physicists at Rush did not have expertise in the Monte Carlo technique and wanted to develop such expertise. He states that the Ottawa Center is one of the leading cancer centers in Canada.
Although Chu claims he had no knowledge of Li's national origin, plaintiff asserts that Li has a strong Chinese accent. This allegation is supported by a letter of recommendation that David Rogers provided for Li, in which Rogers states that he couldn't speak to Li's teaching capabilities because he hadn't observed him teaching but that his strong accent might make him difficult to understand. Hammoudah also points out that Chu's claim that he rejected applicants with Asian/Pacific Islander surnames indicates that Chu would have recognized that Li's surname was Asian/Pacific Islander as well.
Mayer interviewed with Chu, Saxena and five additional faculty members, three of U.S. national origin, one of Taiwan origin and one of Vietnamese origin. Li interviewed with Chu, Saxena and four additional faculty members, one of Indian origin, two of U.S. origin and one of Taiwan origin. Based on his own impression as well as feedback from the other interviewers, Chu offered the position to Mayer after receiving Saxena's concurrence. Mayer declined, and Chu offered the position to Li, who accepted. Rush notified Hammoudah in a July 22, 1997, letter that he had not been selected for the position. In November 1997, Hammoudah filed a charge alleging discrimination based on national origin and age with the Illinois Department of Human Rights (IDHR), which cross-filed the charge with the Equal Employment Opportunity Commission (EEOC). In April 1998, plaintiff filed a charge alleging that Rush had refused to hire him because of his religion. Neither charge mentions his applying for positions in 1992 or 1996. After receiving his notice of right to sue from the EEOC, plaintiff filed the instant action in August 1998, alleging that Rush's failure to hire him in 1992 and 1996, as well as in 1997, was discrimination based on national origin, religion and age.
In April 1998, Chu selected a current medical physics department employee, John Zimmer, to fill a therapeutic radiological position. Zimmer, a U.S. citizen born in 1953, had received a masters in medical physics from Rush and had been in the postdoctoral medical physics program at Rush since 1994. In 1999, Li resigned to take a position at the University of Maryland. Chu hired Damian Bernard, a U.S. citizen born in 1956, who had worked in Rush's medical physics section since 1983.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) states that summary judgment "shall be rendered forthwith if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must "view the record and all reasonable inferences drawn from the record in the light most favorable to the non-moving party." Sample v. Aldi, Inc., 61 F.3d 544, 546 (7th Cir. 1995). "[A] party will be successful in opposing summary judgment only when they present definite, competent evidence to rebut the motion." Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997).
III. Discussion
Rush moves for summary judgment on the following bases: 1) any allegations relating to plaintiff's rejection for positions in 1992 and 1996 are barred as untimely and because they were not included in plaintiff's EEOC charges; and 2) Rush rejected plaintiff in 1997 because it determined that he was not sufficiently qualified for the position and the candidates it interviewed and offered the position to were better qualified. Rush maintains that plaintiff has failed to establish that Rush's reasons for rejecting him were pretext for discrimination based on national origin, age or religion.
A. Untimely Charges
As to the defendant's first argument, the court agrees that plaintiff cannot pursue a claim for Rush's failure to hire him in 1992 or 1996 because these actions occurred more than 300 days before plaintiff filed his EEOC charge on November 26, 1997. 42 U.S.C. § 2000e-5 (e); 29 U.S.C. § 626 (d). "When an employer acts in a discrete fashion, such as failing to hire . . ., this discrete act clearly triggers the running of the limitations period." Banas v. American Airlines, 969 F.2d 477, 481 (7th Cir. 1992). A further bar is plaintiff's failure to include these allegations in his EEOC charge. McKenzie v. Illinois Department of Transportation, 92 F.3d 473, 481 (7th Cir. 1996).
B. Legitimate, Nondiscriminatory Reason for Failure to Hire
To establish a prima facie case of discrimination for failure to hire, the plaintiff must show: 1) he belongs to a protected group; 2) he applied for and was qualified for the position; 3) he was rejected for the position; and 4) the defendant hired a person outside the protected class who had similar or lesser qualifications than the plaintiff. See Pafford v. Herman, 148 F.3d 658, 669 (7th Cir. 1998) (failure to promote). If the plaintiff establishes a prima facie case, the defendant must articulate a legitimate, nondiscriminatory reason for its employment decision. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Once the defendant provides a legitimate reason for the termination, the plaintiff must establish that the defendant's proffered reasons are pretextual. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. The burden of persuasion, however, remains at all times with the plaintiff Id.
The court need not consider the elements of the prima facie case and can proceed to a discussion of whether the plaintiff has established pretext in instances where the defendant has proffered a legitimate, nondiscriminatory reason for its employment action. Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135 (7th Cir. 1985). Although defendant denies that it considered plaintiff qualified for the position, it has also proffered a legitimate, nondiscriminatory reason for its failure to hire him-that the other candidates were better qualified. The court will therefore proceed to plaintiff's claim that the basis for refusing to hire was pretextual. To establish pretext, plaintiff must establish that: 1) the proffered reason is factually baseless; 2) it was not the actual motivation for the failure to hire; or 3) the proffered reason was insufficient to motivate the failure to hire. See Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996).
Rush asserts that the other candidates it considered for the position were more qualified than plaintiff and that plaintiff has proffered no evidence to rebut the basis for Chu's decision. Chiu-Tsao, Meyer, and Li had all been steadily employed in the medical physics field, were working at prestigious medical or cancer treatment centers, published numerous articles in the field, and had recent teaching and clinical experience.
The bulk of plaintiff's response, which the court gleans mainly from his statement of facts, is that plaintiff had extensive experience in the medical physics field that made him more qualified than any other candidate. He claims that Mayer's and Li's lack of board certification indicate that they were not more qualified than he. In response to Chu's critique of his job hopping, Hammoudah points out that Li also held numerous jobs. Hammoudah also maintains that he did have teaching and clinical experience and that his publications and work experience were higher quality than Li's.
What Hammoudah fails to do, however, is to rebut Rush's claims that his failure to have worked in the medical physics field since 1994; his unstable work record, his lack of recent teaching experience and any clinical experience; his failure to identify any of his publications by name, date or topic; and his lack of prestigious prior employers were together the actual reason Chu determined he was not as qualified as other applicants. The evidence indicates that Chu had specific, non-discriminatory reasons for his decision that Hammoudah was less qualified than the other candidates. Hammoudah's self-serving assessment of his qualifications and publications cannot establish pretext for discrimination. See Gustovich v. AT T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992). In determining whether an employer's reason for the employment action is mere pretext, courts must consider whether the decision makers honestly believed the reason and had a reasonable basis for that belief, not whether the reason for the action was a correct business judgment. Eiland v. Trinity Hospital, 150 F.3d 747, 753 (7th Cir. 1998). As to Hammoudah's criticisms of the other applicants' qualifications, Rush maintains, for example, that board certification was not mandatory for the position, that much of plaintiff's own teaching and clinical experience was not included in his resume, that his experience was not recent, and that the titles and subjects of his publications were not included in his resume. According to Rush, Hammoudah's determination that Li's recent work experience was limited or of lesser quality than his is simply contradicted by the information included in Li's resume.
"Given that [plaintiff's] own descriptions of the applicants' education and experience demonstrate the difficulty in comparing the two backgrounds, the court is not enthusiastic about second-guessing [Rush's] decision. Indeed, courts do not sit as a `super-personnel department' to review a company's business decisions." Williams v. Illinois Department of Public Aid, 1999 WL 1267722, *3 (citing Ghosh v. Ind. Dept. of Environ. Mgmt., 192 F.3d 1087, 1093 (7th Cir. 1999)).
IV. Conclusion
Hammoudah has failed to present evidence establishing that Chu's reasons for not hiring him were pretextual for discrimination based on national origin, religion or age. The court therefore grants Rush's motion for summary judgment.
ORDERED: For the foregoing reasons, the court grants the motion for summary judgment.