Philip C. Bodenstab, M.D. v. County of Cook ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1450
P HILIP C. B ODENSTAB, M.D.,
Plaintiff-Appellant,
v.
C OUNTY OF C OOK, L ACY L. T HOMAS, and
B RADLEY L ANGER, M.D.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 281—William J. Hibbler, Judge.
A RGUED F EBRUARY 12, 2009—D ECIDED JUNE 22, 2009
Before E ASTERBROOK, Chief Judge, and F LAUM and
M ANION, Circuit Judges.
M ANION, Circuit Judge. Philip Bodenstab sued Cook
County and Cook County Hospital’s Chief Operating
Officer, Lacy Thom as, and M ed ical D irector,
Bradley Langer, after he was fired from his position as an
anesthesiologist at Cook County Hospital (now known as
Stroger Hospital). Bodenstab alleged he was fired in
2 No. 08-1450
violation of the Americans with Disabilities Act (“ADA”),
and for exercising his First Amendment rights. Bodenstab
also sought to overturn the state administrative decision
upholding his firing and argued that the termination
proceedings violated his due process rights. The defen-
dants moved for summary judgment, arguing that they
were justified in firing Bodenstab because he had threat-
ened to kill his supervisor and co-workers. The district
court granted the defendants summary judgment and
Bodenstab appeals. We affirm.
I.
Dr. Philip Bodenstab began working as an anesthesiolo-
gist at Cook County Hospital in Chicago, Illinois in 1993.
On February 22, 2002, Bodenstab telephoned a friend,
Jennifer Wengeler, who lived in Seattle, Washington.
According to Wengeler, Bodenstab (who had recently
been diagnosed with a cancerous lesion on his lip) told
her that he was going to the Mayo Clinic and that if the
cancer had metastasized, he was going to kill his super-
visor, Dr. Winnie, and other co-workers. According to
Wengeler, Bodenstab further stated that it was possible
he might die in the ensuing gun battle with police.
Wengeler stated that out of concern for the safety of
Bodenstab and his co-workers, she contacted the
Chicago Police and the Seattle FBI office.
The Chicago Police and the FBI started an investigation
into the threats and alerted Cook County Hospital Medical
Director (and defendant) Bradley Langer. They told Langer
that the death threats were credible. Defendant Lacy
No. 08-1450 3
Thomas also reviewed the police reports, and later partici-
pated in the decision to fire Bodenstab.
Rather than firing Bodenstab immediately, the hospital
administratively suspended Bodenstab, with pay, and
directed him to make an appointment with a forensic
psychiatrist for a fitness of duty evaluation. Bodenstab
refused. Eventually, Bodenstab and the hospital agreed
that he would obtain treatment at the Professional
Renewal Center (“PRC”) in Lawrence, Kansas. Bodenstab
completed a five-day multi-disciplinary assessment at
the PRC on August 24, 2002. The multi-disciplinary
assessment concluded that Bodenstab suffered from
paranoid and narcissistic personality features and occupa-
tional and interpersonal stressors. After the conclusion
of the assessment, on August 26, 2002, Bodenstab elected
to be admitted to the PRC’s “Intensive Day Treatment
Program” and he continued this treatment for approxi-
mately three months.
Upon Bodenstab’s discharge from treatment in late
November 2002, the PRC provided Cook County with a
Treatm ent D ischarge Summary. The Discharge
Summary stated that Bodenstab was fit to return to
practice, but not “to a work situation that is emotionally,
politically, or interpersonally charged, as such an en-
vironment would likely strain his ability to work with
others in a consensual and cooperative manner.” The
Discharge Summary also recommended that Bodenstab
continue to be monitored by a psychiatrist and enter
into a longer psychotherapy program, but it appears
Bodenstab did neither.
4 No. 08-1450
After Bodenstab’s discharge from the PRC, Cook County
asked its psychiatrist, Dr. Deepak Kapoor, to interview
Bodenstab. Kapoor was concerned that Bodenstab exhib-
ited paranoia and interpersonally charged issues and
Kapoor felt concerned for his own safety. On January 17,
2003, the hospital informed Bodenstab that it would
hold a pre-disciplinary hearing concerning his behavior.
The notice specified that Bodenstab had been accused of a
major infraction—threatening to kill the department co-
chairperson, Dr. Winnie, and four or five co-workers.
Defendant Thomas presided over the pre-disciplinary
hearing. Following the hearing, Thomas concluded that
Bodenstab’s conduct warranted discharge. Bodenstab
appealed the decision to an independent Hearing Officer.
The Hearing Officer affirmed the decision to terminate
Bodenstab, stating that hospital management appropri-
ately did not want to risk placing Bodenstab’s co-
workers in harm’s way.
After he was fired, Bodenstab sued Cook County, Lacy
Thomas, and Bradley Langer (hereinafter “Cook County”).
He sought to overturn the administrative decision termi-
nating him, and also alleged that his firing violated the
First Amendment, the Americans with Disabilities Act,
and his due process rights. The district court granted the
defendants summary judgment and Bodenstab appeals.
II.
On appeal, Bodenstab challenges the district court’s
grant of summary judgment on each of the claims he
presented. We consider each claim in turn, “bearing in
No. 08-1450 5
mind that we review a district court’s grant of summary
judgment de novo and view the evidence in the light most
favorable to the appellant.” Hancock v. Potter, 531 F.3d
474, 478 (7th Cir. 2008).
A. ADA Claims
First we consider Bodenstab’s ADA claims. Bodenstab
presented several theories for recovery under the ADA,
including disparate treatment, failure to accommodate,
and retaliation. The district court granted Cook County
summary judgment on each of these claims because,
among other reasons, it concluded that Bodenstab
“was not disabled within the meaning of the ADA.”
The ADA prohibits discrimination against a “qualified
individual with a disability.” 42 U.S.C. § 12112(a). An
individual has a “disability” within the meaning of the
ADA if he has “a physical or mental impairment that
substantially limits one or more major life activities . . .; a
record of such an impairment; or [is] . . . regarded as
having such an impairment.” 42 U.S.C. § 12102(2).
Bodenstab does not claim that he has an actual impair-
ment that substantially limits a major life activity, but
rather argues that Cook County regarded him as having
such an impairment, namely being impaired in the
ability to interact with others. It is unclear whether
“interacting with others” is, in itself, a “major life activity”
within the meaning of the ADA. In Emerson v. Northern
States Power Co., 256 F.3d 506, 511 (7th Cir. 2001), the
plaintiff had argued that her brain injury impaired her
6 No. 08-1450
in the major life activity of “interacting with others,” but
we noted that she offered “no legal precedent to
support her assertion.” Accordingly, we treated her
impairment in “interacting with others” as a factor that
fed “into the major life activities of learning and working.”
Id. In this case, though, Bodenstab claims interacting
with others as the sole “major life activity,” so there is
nothing else into which this factor can feed. And since
Emerson we have not further considered this issue.
However, we need not decide whether “interacting with
others” qualifies as a “major life activity,” or, if it does,
whether Bodenstab was substantially limited in this
activity. Even assuming arguendo that “interacting with
others” is a “major life activity,” and further assuming
arguendo that Bodenstab was “substantially limited in
this activity,” as explained below, his ADA claims still
fail for several reasons.1
Bodenstab’s first claim is for disparate treatment.
Bodenstab alleges that Cook County fired him because of
his perceived disability and that its assertion that it
fired him because of his alleged threats is pretextual. While
the question of pretext arises only after a plaintiff has
established a prima facie case of discrimination and the
1
Bodenstab also argues in passing that he is disabled within the
meaning of the ADA because he has a record of a disability,
again in the major life activity of “interacting with others.”
This argument is undeveloped, but as noted, we need not
resolve the issue because Bodenstab’s ADA claims fail even
assuming he is “a qualified individual with a disability.”
No. 08-1450 7
employer has countered with a legitimate non-discrimina-
tory reason for the adverse action, we can skip over the
initial burden-shifting of the indirect method and focus
on the question of pretext. Rummery v. Illinois Bell Tel.
Co., 250 F.3d 553, 556 (7th Cir. 2001) (“Like the district
court, we will assume, without deciding, that [the plaintiff]
established a prima facie case of discrimination.”).2
2
In arguing that he has established a prima facie case of
disparate treatment, Bodenstab claims that Cook County
punished him more severely for his misconduct than similarly
situated employees who were not “disabled.” For an individual
to succeed on a discrimination claim based on alleged
disparate treatment in discipline, the other individuals must
be comparable “in all material respects.” Brummett v. Sinclair
Broad. Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005). This includes
a showing that the employee held the same type of job, was
disciplined by the same supervisor, was subject to the same
standards, had comparable experience and qualifications,
and engaged in the same conduct without differentiating or
mitigating circumstances. Id. at 692-93. Discipline from a
different supervisor “sheds no light” on the disciplinary
decision. Little v. Illinois Dep’t of Revenue, 369 F.3d 1007, 1012
(7th Cir. 2004). In support of his position, Bodenstab points to
several individuals who were disciplined (but not fired) for
various conduct, such as fighting with other employees or
bringing a handgun to the hospital. None of these other em-
ployees’ conduct, however, was comparable to Bodenstab’s
and none was supervised by the same individuals. Therefore,
Bodenstab also did not present sufficient evidence that
similarly situated individuals without a disability were treated
more favorably.
8 No. 08-1450
“Pretext means a dishonest explanation, a lie rather than
an oddity or an error.” Faas v. Sears, Roebuck & Co., 532 F.3d
633, 642 (7th Cir. 2008) (internal quotations omitted)
“Showing pretext requires [p]roof that the defendant’s
explanation is unworthy of credence.” Filar v. Bd. of Educ.
of City of Chicago., 526 F.3d 1054, 1063 (7th Cir. 2008)
(internal quotations omitted).
In this case, Cook County presented evidence that it
fired Bodenstab because he had threatened his co-workers.
On appeal, Bodenstab spends a great deal of time
downplaying his threats, characterizing them as “condi-
tional syllogisms” and claiming Wengeler misinterpreted
his comments. However, “to show pretext, [plaintiff] must
show more than [defendant’s] decision was mistaken, ill
considered or foolish, [and] as long as [the employer]
honestly believes those reasons, pretext has not been
shown.” Hague v. Thompson Distrib. Co., 436 F.3d 816, 823
(7th Cir. 2006)) (internal quotation omitted). Thus, “[o]ur
only concern is with the honesty of [Cook County’s]
beliefs,” and not with whether Bodenstab actually made
the specific threats, as claimed by Wengeler. Petts v.
Rockledge Furniture LLC, 534 F.3d 715, 726 (7th Cir. 2008).
Bodenstab does not present any evidence calling into
question the sincerity of Cook County’s belief that he
had threatened to harm his co-workers and that it fired
him for that reason. Rather, the undisputed evidence
supports Cook County’s belief that Bodenstab made
these threats. Specifically, Cook County received an
incident report from the Chicago Police Department that
stated: “Jennifer Wengeler contacted [the police depart-
No. 08-1450 9
ment]. She stated that she had received a call on
22Feb02 from Bodenstab. He stated, in summary, that
he was going to the Mayo Clinic for tests and if these
tests turned out badly he was going to kill Dr. Alon
Winnie and other staff members at Cook County Hospital.”
Cook County also received a Multi-Disciplinary Assess-
ment Report from the PRC that also referred to Wengeler’s
statement that “Dr. Bodenstab indicated that if he were
to find out that his cancer had spread, he had ‘plans to
kill’ his former chief, Dr. Alon Winnie, and four to five
of his physician coworkers.” The Multi-Disciplinary
Report then stated: “Dr. Bodenstab does not deny having
a conversation with the informant that was thematically
consistent with what is outlined above, but denies
having any intent to actually carry out a murder-suicide.”
Moreover, Bodenstab admitted to telling Wengeler: “Well
maybe I’ll take some people with me if, if I have cancer,
if I’m found to have metastases. Maybe, maybe it
wouldn’t be so bad being dead if you have metastases.
They shoot horses don’t they? If I have metastases, then
maybe I would take some people with me.”
In response, Bodenstab argues that because the
Hearing Officer rejected Cook County’s reliance on the
threats as a basis for firing him, a jury could also find
that reason pretextual. Bodenstab, however, misrepresents
the Hearing Officer’s decision. In affirming Cook County’s
decision to terminate Bodenstab, the Hearing Officer did
not reject Cook County’s conclusion that Bodenstab
had threatened his co-workers; rather, the Hearing Officer
did not reach the issue, ruling instead that he merely
needed “to decide if Management could justify its conclu-
10 No. 08-1450
sion to discharge [Bodenstab].” The Hearing Officer then
concluded that Cook County was justified in discharging
Bodenstab because “[i]t would have been too risky to
chance returning [Bodenstab] to his previous position as
a Doctor of Anesthesiology at Stroger Hospital in view of
the recommendations and observations made by PRC
Staff.” Thus, the Hearing Officer’s decision does not
support Bodenstab’s claim of pretext.
Bodenstab also claims that he presented sufficient
evidence of pretext, as well as circumstantial evidence of
discrimination, by showing that Cook County failed to
follow its own internal policies and by pointing to incon-
sistencies in various witnesses’ testimony. Bodenstab,
however, did not develop these arguments until his
reply brief and thus has waived any such argument. See
United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006)
(holding that arguments not fully developed until a reply
brief are waived). In any event, the evidence Bodenstab
identifies does not support a reasonable inference of
discrimination. Nor does it counter the evidence Cook
County presented that it fired Bodenstab for threatening
(or because it reasonably believed he had threatened)
his co-workers.
In addition to firing Bodenstab for threatening his co-
workers, Cook County informed Bodenstab that it further
believed he was a “direct threat to the health and safety
of other individuals in the workplace” and thus was no
longer qualified to work as an anesthesiologist at Cook
County. Under the ADA, an individual is not qualified if
he presents a “direct threat” to his own health and safety
No. 08-1450 11
or that of others. Chevron U.S.A. Inc. v. Echazabal, 536
U.S. 73, 78-79, 87 (2002). In this circuit, the employer has
“the burden to show that an employee posed a direct threat
to workplace safety that could not be eliminated by a
reasonable accommodation.” Branham v. Snow, 392
F.3d 896, 906 (7th Cir. 2004).
We need not decide, however, whether the undisputed
evidence supports Cook County’s conclusion that
Bodenstab presented a direct threat to others. Even if
Cook County could not satisfy its burden of establishing
that Bodenstab presented a direct threat to the health
and safety of others in the workplace, summary judg-
ment was nonetheless appropriate because Cook County
presented undisputed evidence that it fired Bodenstab
for threatening his co-workers. As we explained in Fischer
v. Avanade, Inc., 519 F.3d 393, 403-04 (7th Cir. 2008), “when
a defendant has offered multiple nondiscriminatory
reasons for its hiring decision, showing that one of these
reasons is pretextual is not enough . . . .” While Fischer
noted that “there may be circumstances where ‘multiple
grounds offered by the defendant . . . are so intertwined, or
the pretextual character of one of them so fishy and
suspicious, that the plaintiff could withstand summary
judgment,’ ” id. at 404 (internal quotation omitted), this
case is not one of those rare circumstances. Rather,
Bodenstab’s challenge to the “direct threat” basis for his
termination rests not on the pretext of that rationale, but
on a claim that his condition did not present a direct
threat. Thus, even if Cook County improperly determined
that Bodenstab presented a “direct threat” within the
meaning of the ADA, summary judgment on the termina-
12 No. 08-1450
tion claim was nonetheless appropriate because Cook
County had a legitimate nondiscriminatory reason for
firing Bodenstab—the threats he had already made (or
that it reasonably believed he had made).
In addition to his disparate treatment claim, Bodenstab
presented a failure to accommodate claim. That claim
fails for the simple reason that, as explained above, the
evidence established that Cook County fired Bodenstab
because of his threats to harm co-workers. There is no
legal obligation to “accommodate” conduct, as opposed
to a disability, as we explained in Spath v. Hayes Wheels
Intern.-Indiana, Inc., 211 F.3d 392 (7th Cir. 2000). In Spath,
the employer fired the plaintiff after he was injured
while engaging in horseplay, and then when confronted
with the facts, lied about the incident. The plaintiff sued
his employer and argued with respect to his failure to
accommodate claim “that his organic brain syndrome,
mild mental retardation, and dependent personality
disorder . . . caused him to deny involvement in the
horseplay incident because he sometimes does not remem-
ber what he was doing or what he might have said in
the past.” Id. at 395 n.5. We explained that “[i]n essence,
Spath is asking this Court to extend the ADA . . . to
prevent an employer from terminating an employee
who lies, just because the lying is allegedly connected to
a disability.” Id. We rejected this argument, noting that
“the ADA does not require this.” Id. See also Jones v. Am.
Postal Workers Union, 192 F.3d 417, 429 (4th Cir. 1999) (“The
law is well settled that the ADA is not violated when an
employer discharges an individual based upon the em-
ployee’s misconduct, even if the misconduct is related to
No. 08-1450 13
a disability.”). Similarly, in this case, Cook County did not
have an obligation to accommodate Bodenstab’s threats,
even if they were somehow related to a disability.
Bodenstab’s final ADA claim is for retaliation; Bodenstab
argues that he was fired for engaging in various protected
activities. It is questionable whether the activities
Bodenstab identifies—writing a letter to defendant
Thomas asking to be reinstated, his complaints about
being forced to undergo psychiatric examinations, and his
identifying reasonable accommodations in his summary
judgment memorandum—are protected activities. How-
ever, even assuming Bodenstab engaged in protected
activities, he did not present sufficient evidence that the
defendants fired him because he engaged those activities.
Rather, the undisputed evidence shows that Cook County
fired Bodenstab for threatening his co-workers. Thus, his
retaliation claim also fails. See, e.g., Jasmantas v. Subaru-
Isuzu Automotive, Inc., 139 F.3d 1155, 1157 (7th Cir. 1998)
(affirming grant of summary judgment to employer on
plaintiff’s retaliation claim where evidence showed em-
ployer fired plaintiff because it believed she had “been
dishonest with the company about her injuries” and
plaintiff’s evidence did not indicate this reason was
pretextual).
B. First Amendment
Next, we consider Bodenstab’s First Amendment claim.
Bodenstab claims that he engaged in constitutionally
protected speech and was fired in retaliation for engaging
in that speech. Specifically, Bodenstab says that he
14 No. 08-1450
spoke out against, among other things, patient abandon-
ment, ghost surgeries, lack of credentialed physicians,
and physicians sleeping on duty. The district court granted
Cook County summary judgment on Bodenstab’s First
Amendment claim, concluding that his speech was not
constitutionally protected and was too remote in time
from his termination to establish causation.
“To make out a prima facie case of first amendment
retaliation, a public employee must present evidence
that: (1) his speech was constitutionally protected,
(2) he has suffered a deprivation likely to deter free
speech, and (3) his speech was at least a motivating
factor in the employer’s action.” Massey v. Johnson, 457
F.3d 711, 716 (7th Cir. 2006) (citations omitted). If the
plaintiff can satisfy this burden, the defendant may
avoid judgment by showing he “would have taken the
same action even in the absence of [the plaintiff’s] exercise
of his First Amendment rights.” Samuelson v. LaPorte
Cmty. Sch. Corp., 526 F.3d 1046, 1053 (7th Cir. 2008).
On appeal, Bodenstab initially argues that the district
court erred in granting Cook County summary judgment
on his First Amendment claim because Cook County did
not seek summary judgment on this claim until its reply
brief. As a result, Bodenstab argues that he was denied
the opportunity to submit evidence showing he had
engaged in protected speech and that there was a causal
connection between his speech and his termination.
While it is true that before the district court Cook County
did not support its argument for summary judgment on
Bodenstab’s First Amendment claim until its reply brief,
No. 08-1450 15
Cook County did move for summary judgment on all
claims, including Bodenstab’s § 1983 claim brought in
Count II. In Count II, Bodenstab presented five distinct
theories for recovery under § 1983, including his First
Amendment claim. After Bodenstab pointed out in his
response memorandum that his § 1983 claim presented
multiple theories of recovery, including a First Amend-
ment claim, Cook County addressed the propriety of
summary judgment on the First Amendment claim in its
reply brief. In doing so, Cook County did not present any
new evidence. Rather, Cook County relied on the evi-
dence Bodenstab submitted as part of the summary
judgment proceedings, including an exhibit Bodenstab
submitted which listed forty-one documents he claimed
constituted protected speech.
On appeal, Bodenstab notes that the exhibit merely
summarized the forty-one documents, and that had he
known Cook County was seeking summary judgment on
his First Amendment claim, he would have presented the
actual documents. According to Bodenstab, the “form,
content and level of distribution on the ‘cc’ list” of those
documents would have established that he had engaged
in protected First Amendment speech.
However, even assuming that Bodenstab succeeded
in establishing that he engaged in constitutionally pro-
tected speech,3 his First Amendment claim fails for the
3
“Speech is constitutionally protected if (1) the employee
spoke as a citizen on matters of public concern, and (2) the
(continued...)
16 No. 08-1450
same reason as his ADA claims: Cook County presented
undisputed evidence that it fired Bodenstab because he
threatened to kill his co-workers. Bodenstab has not
presented any evidence calling into question the
veracity of Cook County’s rationale for his termination.
Although Bodenstab might not have had notice that his
First Amendment claim was under summary judgment
consideration, he clearly knew that Cook County was
relying on his threats as the basis for his termination. In
the context of his ADA claim, Bodenstab had more than
ample opportunity to present evidence that that was not
the real reason Cook County fired him, but he failed to do
so. Because the same legitimate non-discriminatory
reason defeats any First Amendment claim, the district
court did not err in granting the defendants summary
judgment on that claim as well. See Golden Years
Homestead, Inc. v. Buckland, 557 F.3d 457, 462 (7th Cir. 2009)
(upholding a grant of summary judgment where the
3
(...continued)
interest of the employee as a citizen in commenting upon
matters of public concern outweighs the interest of the State
as an employer in promoting the efficiency of the public
services it performs through its employees.” Sigsworth v. City
of Aurora, Ill., 487 F.3d 506, 509 (7th Cir. 2007). As the
Supreme Court explained in Garcetti v. Ceballos, 547 U.S. 410,
421 (2006), “when public employees make statements pursu-
ant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer disci-
pline.”
No. 08-1450 17
evidence relating to the defendant’s possible retaliatory
motive was the same for the state law claims not
addressed as the federal constitutional claims which were
addressed); Acequia, Inc. v. Prudential Ins. Co. of Am., 226
F.3d 798, 807 (7th Cir. 2000) (upholding grant of sum-
mary judgment where the losing party had notice of the
basis for the motion for summary judgment on one claim
and that same basis doomed the remaining seven claims).
Moreover, on appeal Bodenstab had every opportunity to
address the issue of causation in the context of the First
Amendment claim and he did not identify any additional
evidence which would help his case. “[A] sua sponte
judgment may be affirmed if the complaining party
cannot show on appeal that it was deprived of the op-
portunity to present a viable claim,” Tranzact Tech., Ltd. v.
Evergreen Partners, Ltd., 366 F.3d 542, 549 (7th Cir. 2004), as
there is “no reason to remand the case because [the plain-
tiff] was given a full opportunity to make its argument on
appeal.” S. Ill. Riverboat Casino Cruises, Inc. v. Triangle
Insulation & Sheet Metal Co., 302 F.3d 667, 678 (7th Cir.
2002). See also Buckland, 557 F.3d at 462 (upholding a
grant of summary judgment even though the defendant
did not specifically address state law claims in its
opening motion for summary judgment because the
plaintiff did not identify any significant evidence that it
omitted).
C. Common Law Certiorari
Bodenstab’s next claim is a supplemental state law
claim for common law certiorari. Under Illinois law,
18 No. 08-1450
“[w]here the Administrative Review Law has not been
expressly adopted, the writ of common law certiorari
survives as an available method of reviewing the actions of
agencies and tribunals exercising administrative func-
tions.” Stratton v. Wenona Community Unit Dist. No. 1, 551
N.E.2d 640, 645 (Ill. 1990). As the Illinois Supreme Court
explained, “[t]he common law writ of certiorari was devel-
oped to provide a means whereby a petitioner who was
without avenue of appeal or direct review could obtain
limited review over action by a court or other tribunal
exercising quasi-judicial functions.” Id. Thus, “where a
final administrative decision has been rendered,” such
as the one affirming Bodenstab’s firing, a court may
review that decision. Id. 645-46.
In reviewing an administrative decision, the question
“under common law certiorari, as in statutory certiorari
proceedings, is whether the record contains any evidence
which fairly tends to support the agency’s findings.”
Maddox v. Williamson Cnt. Bd. of Comm’rs, 475 N.E.2d
1349, 1354 (Ill. App. Ct. 1985). Courts may “not reweigh
the evidence and may set aside the agency’s findings
only if they are palpably or manifestly against the weight
of the evidence.” Id. In reviewing an agency’s decision to
discharge an employee, we “further ask whether the
agency’s findings of fact [were] sufficient to warrant
discharge under the applicable standard of conduct. Id.A “discharge will be overturned where found to be arbi-
trary and unreasonable.” Id. “Simply put, if there is
evidence of record that supports the agency’s determina-
No. 08-1450 19
tion, it must be affirmed.” 4 Kimball Dawson, LLC v. City
of Chicago Dept. of Zoning, 861 N.E.2d 216, 222 (Ill. App. Ct.
2006).
In this case, the Hearing Officer who reviewed
Bodenstab’s discharge found that “[i]t would have been
too risky to chance returning [Bodenstab] to his previous
position as a Doctor of Anesthesiology at Stroger
Hospital in view of the recommendations and observa-
tions made by PRC Staff.” The Hearing Officer further
concluded that “[m]anagement could not place [Bodenstab]
in a situation which could have resulted in the disruption
of operations at Stroger Hospital and/or place his co-
workers in harm’s way.” Based on these factual findings,
the Hearing Officer concluded that Cook County was
justified in discharging Bodenstab.
As noted above, we may not reweigh the evidence or set
aside the Hearing Officer’s findings of fact unless they
were “palpably or manifestly against the weight of the
evidence.” Maddox, 475 N.E.2d at 1354. In this case, the
evidence supported the Hearing Officer’s findings of fact.
As the Hearing Officer noted, the PRC concluded that
Bodenstab could not work safely in an “emotionally,
politically, or interpersonally charged environment.” The
4
The parties dispute whether under Illinois law, the adminis-
trative findings of “cause” are considered “prima facie true and
correct.” We need not delve into this question of state law
because, as discussed below, Bodenstab’s common law
certiorari claim fails whether or not we consider the agency’s
determination of cause prima facie true.
20 No. 08-1450
Hearing Officer also heard testimony concerning
Bodenstab’s time at Cook County and this testimony
further supported the Hearing Officer’s conclusion that
it was “too risky” to return Bodenstab to his position as
a Doctor of Anesthesiology.
The Hearing Officer likewise did not err in concluding
that Cook County was justified in terminating Bodenstab
based on these facts. In Illinois, “ ‘cause’ has been
judicially defined as some substantial shortcoming which
renders the employee’s continuance in his office or em-
ployment in some way detrimental to the discipline and
efficiency of the service.” Davis v. City of Evanston, 629
N.E.2d 125, 132 (Ill. App. Ct. 1993) (internal citations
omitted). Bodenstab’s inability to work safely in an
“emotionally, politically, or interpersonally charged
environment” qualifies as a substantial shortcoming,
rendering his continuance as an anesthesiologist detri-
mental to the discipline and efficiency of service. Accord-
ingly, we affirm the Hearing Officer’s decision up-
holding Bodenstab’s termination.
Bodenstab also challenges the Hearing Officer’s
decision by arguing that in reviewing his termination,
the Hearing Officer should have applied the rules set
forth in the Medical Staff Bylaws, as opposed to the Rules
and Regulations Governing Employee Conduct. The
Hearing Officer rejected this argument, concluding that
the Medical Staff Bylaws governed medical staff member-
ship and clinical privileges at Cook County health
facilities and not disciplinary actions, whereas dis-
ciplinary actions were governed by the Hospital Rules
No. 08-1450 21
and Regulations Governing Employee Conduct. Because in
this case Cook County sought to terminate Bodenstab
based on the “just cause” provisions contained in the
Hospital Rules and Regulations, the Hearing Officer’s
decision to apply those rules was supported by the evi-
dence.
Bodenstab further argues that the Hearing Officer erred
in upholding his firing because County Board President
John H. Stroger did not approve his discharge, as he
claims was required by County policy. The record evi-
dence, however, does not support Bodenstab’s claim
that Stroger had not approved of his termination.
Bodenstab bore the burden of proof, and thus to avoid
summary judgment needed to present such evidence.
He did not do so, and accordingly this argument fails
as well.5
D. Due Process Claims
Finally, Bodenstab argues that the district court erred in
granting the defendants summary judgment on his due
process claims. The Supreme Court in Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 542 (1985), held that
5
In his reply brief, Bodenstab also asserts that the Hearing
Officer improperly upheld his discharge based on off-duty
conduct. By not making this argument until his reply brief, it is
waived. Alhalabi, 443 F.3d at 611. In any event, we agree with
the Hearing Officer that the fact that Bodenstab made the
threats while off duty is irrelevant, as they clearly affected
his ability to practice medicine safely while on duty.
22 No. 08-1450
due process “requires some kind of a hearing prior to the
discharge of an employee who has a constitutionally
protected property interest in his employment.” (internal
quotations omitted). Under Loudermill, “when adequate
post-termination proceedings exist, a pretermination
hearing need only provide ‘an initial check against mis-
taken decisions—essentially, a determination of whether
there are reasonable grounds to believe that the charges
against the employee are true and support the proposed
action.’ ” Michalowicz v. Village of Bedford Park, 528 F.3d
530, 536-37 (7th Cir. 2008) (quoting Loudermill, 470 U.S.
at 545-46).
In this case, prior to his termination, Cook County
provided Bodenstab with a pre-termination hearing. Cook
County notified him by letter dated January 17, 2003, that
this hearing would take place on February 20, 2003, “to
discuss the charges set forth below.” The letter then
stated that Bodenstab had “committed a major cause
infraction by threatening to kill [his] former Department
Chairperson and four to five of [his] co-workers.” Cook
County also provided a summary of the grounds sup-
porting this charge, noting the reports it had received
from the Chicago Police Department and the FBI, and
stated that “[i]f the above charges are supported by
sufficient facts, you may be disciplined up to and including
discharge.” The letter also summarized Bodenstab’s
treatment at the PRC and the Multi-Disciplinary Assess-
ment Diagnostic Report, as well as the PRC Report’s
statement that Bodenstab should not return “to a work
situation that is emotionally, politically, or interpersonally
charged as such an environment would likely strain his
No. 08-1450 23
ability to work with others in a consensual and cooperative
manner.” The letter then concluded that “[g]iven the
serious nature of your threats against the lives of your co-
workers and in consideration of . . . the report from the
Professional Renewal Center . . . the County believes that
you pose a direct threat to the health and safety of other
individuals in the workplace.” The noticed pre-termination
hearing was eventually held on May 12, 2003. (Bodenstab
had requested various delays from the original February
20, 2003, hearing date.) At the pre-termination hearing
Bodenstab had the opportunity to respond to the charges
set forth in the January 17, 2003 letter.
For a pre-termination hearing to comply with due
process requirements the employee must receive: (1) oral
or written notice of the charges; (2) an explanation of the
employer’s evidence; and (3) an opportunity to tell his
side of the story. Staples v. City of Milwaukee, 142 F.3d
383, 385 (7th Cir. 1998). The notice and pre-termination
hearing Bodenstab received more than complied with
the mandates of the due process clause.
Following the pre-termination hearing, Bodenstab
appealed his termination and received another hearing. At
that hearing, Bodenstab again had the opportunity to
present his side of the story and respond to the allega-
tions stated in the January 17, 2003 letter. As explained
above, following that hearing, the Hearing Officer con-
cluded that Cook County properly terminated Bodenstab
because it was “too risky” to return Bodenstab to his
position as a Doctor of Anesthesiology.
In response, Bodenstab argues he was denied adequate
pre- and post-termination hearings because he was
24 No. 08-1450
notified that he was being discharged for a “major cause
infraction” (his alleged threats), but was then terminated
for a different reason (his inability to work safely as an
anaesthesiologist at Cook County Hospital). However, the
January 17, 2003, letter was not so limited; rather, that
letter also specifically referred to and explained the
basis for Cook County’s conclusion that Bodenstab
could not be retained as an anaesthesiologist because he
was a direct threat to the health and safety of others. At
the final hearing, Bodenstab had the opportunity to
present evidence and arguments concerning the PRC
Reports and his ability to function safely at Cook County
Hospital. Thus, he had more than sufficient notice and
an opportunity to be heard on the grounds on which the
final Hearing Officer affirmed his termination. For
these reasons, Bodenstab’s due process claims fail.
III.
Cook County presented undisputed evidence that it
fired Bodenstab because he threatened to kill his co-
workers. Bodenstab did not present sufficient evidence of
pretext to avoid summary judgment on Cook County’s
ADA claims. These threats likewise doomed Bodenstab’s
First Amendment retaliation claim. Additionally, the
Hearing Officer’s decision affirming Bodenstab’s termina-
tion was proper and thus Bodenstab’s common law
certiorari claim likewise fails. Finally, Bodenstab’s due
process claims fail because Cook County provided him
with constitutionally sufficient notice and an opportunity
to be heard. Accordingly, the district court properly
No. 08-1450 25
granted Cook County summary judgment. For these
and the foregoing reasons, we A FFIRM .
6-22-09