Auston v. Schubnell

• Decision Date: 18 June 1997
• Docket Number: No. 96-1132,96-1132
• Citation: 116 F.3d 251
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 610 Gene M. AUSTON, IV, Plaintiff-Appellant, v. Tom SCHUBNELL et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 251

116 F.3d 251

74 Fair Empl.Prac.Cas. (BNA) 610

Gene M. AUSTON, IV, Plaintiff-Appellant, v. Tom SCHUBNELL et al., Defendants-Appellees.

No. 96-1132.

United States Court of Appeals Seventh Circuit.

Argued Oct. 29, 1996.

Decided June 18, 1997.

Gene M. Auston, IV, Captain (argued), Evanston, IL, pro se.

Frederick T. Smith (argued), Joan E. Gale, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendants-Appellees.

Before CUMMINGS, COFFEY, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Captain Gene Auston worked for a period of time at Children's Memorial Medical Center (the Hospital) as a weekend day staff nurse. In 1992, he was involved in two car accidents, in both of which he suffered injuries serious enough to require him to take a leave of absence from his job. His problems arose when he attempted to extend his time off from the second leave. After a lengthy period of negotiations, grievance procedures, and discussions with hospital personnel, Austin's employment with the Hospital was terminated. He then filed this suit in state court under Title VII and the Americans with Disabilities Act, claiming that he had suffered sex discrimination and discrimination on account of a perceived disability. He also asserted six supplemental state claims, for breach of contract, wrongful termination, misrepresentation, "tortious acts of bad faith and possibly fraud," intentional infliction of emotional distress, and tortious interference with contract. The Hospital removed the action to federal court, where in due course the district court granted the Hospital's motion for summary judgment and dismissed certain other claims that Auston had abandoned. We agree that Auston failed to raise a genuine issue of fact on any of the claims that are still in the case, and we therefore affirm.

Because we are reviewing the district court's grant of a motion for summary judgment, we present the facts in the light most favorable to Auston. Schmidt v. Methodist Hospital of Indiana, Inc., 89 F.3d 342, 344 (7th Cir.1996). Before joining the Hospital's staff, Auston had been living in Fort Knox, Kentucky. When he learned of the open position at the Hospital, he interviewed with defendant Tom Schubnell, the Clinical Nurse Manager for the Operating Room. During the interview, Schubnell told Auston that if Auston accepted the position of a weekend day nurse (under a special incentive pay system known as the Baylor program) and if he deferred his plans to attend law school for a year, he could have a job at the Hospital until he graduated from law school. Under the Baylor program, the Hospital was entitled to provide incentive pay to part-time weekend nurses working at a .6 full-time equivalent (FTE) level, in selected weekend positions. The program was designed to make it easier to find staff willing to work 12-hour shifts on weekends. Some time after this interview, the Hospital offered Auston the Baylor weekend position, and he accepted, beginning work in September 1991.

For the first nine months or so, the Hospital placed Auston in an orientation and training program. In the Spring of 1992, he began working the two 12-hour shifts in the weekend day-time Baylor position in the Operating Room that he and Schubnell had discussed. In September 1992, again as contemplated, he began law school. Not long afterwards, on September 30, 1992, he was involved in the first of the two car accidents that affected his job. He did not take a leave of absence immediately, but he did request and take a leave without pay in March and April 1993, in order to undergo surgery to correct an injury he had suffered in the September accident. After his leave expired, the Hospital returned him to his weekend day-time Baylor position.

In June 1993, Auston was involved in another car accident. This time, he called Schubnell, who was his supervisor, and told Schubnell that he would be unable to work. Auston concedes that the Hospital had at the time a written policy on leaves of absence without pay. Employees requesting such a leave must apply for it after all their paid leave time has been exhausted and if they expect to be absent for more than ten working days. Applications must be in writing, properly documented, and submitted "well in advance" of the first unpaid day. The policy also stated that the Hospital did not guarantee reinstatement to anyone returning from medical, educational, or personal leave. Instead, placement would depend on the availability of a job. If no suitable position could be found within one month, the employee would be considered laid off and his employment at the Hospital terminated.

In keeping with this policy, Schubnell wrote to Auston on June 30, 1993, and told him that effective July 4, 1993, his paid leave would expire and he would need to apply for an unpaid leave. Schubnell's letter also clearly stated that Auston would need to submit a physician's note to support his application, and that Auston would need to meet with Schubnell to negotiate his staffing hours. The letter also informed Auston that he would need to work weekday shifts, either from 7:00 a.m. to 3:00 p.m., or from 7:00 a.m to 5:00 p.m., whichever was better. (Presumably the longer shifts would have permitted Auston to accumulate his 48 hours per pay period with fewer days in the Hospital per week.) Notwithstanding this letter, Auston did not provide the physician's note Schubnell had requested, nor did he specify how long he wanted to remain on leave. He did write on July 7, 1993, to confirm that he wanted a leave of absence and that he wanted to retain his .6 FTE position.

While Auston was on leave, other employees took over his duties in the Operating Room. The Hospital did not place the substitutes in the Baylor program. To the contrary, it decided to eliminate the Baylor position that Auston had filled, as part of a broader program of labor cost containment. Auston disputes the Hospital's contention that it intended ultimately to eliminate all the Baylor positions, pointing out that Karen Anderson, Director of Nursing, Operating Room Services, who would have had a key role in deciding whether to do away with OR Baylor positions, testified in her deposition that she "could not even state that a decision to eliminate a Baylor position in the OR had been reached prior to May, 1994." He also contends that the Hospital continued the Baylor program and "hired new Baylors" long after his termination. He does not, however, dispute the broader fact that the Hospital was reducing those positions overall during the relevant time period.

On September 15, 1993, Schubnell wrote to Auston informing him that his employment had been terminated effective September 20, 1993, because of his failure to supply medical documentation to the Hospital in support of his leave and his failure to communicate with Schubnell since his July 7 letter. Far from ending matters, Schubnell's September 15 letter was the beginning of a lengthy process during which Auston challenged the Hospital's decision in every way available to him. Briefly, Auston protested Schubnell's decision, pointing out that Schubnell had promised to discuss his status once he was medically released to work. Defendant Jamie O'Malley, Vice President of Patient Services, met with Auston, investigated his case, and decided that Schubnell's letter was ambiguous. She therefore reinstated Austin to the .6 FTE position and extended his leave until December 7, 1993.

Not content with that, Auston wrote to Defendant Jeanne Martin, the Hospital's Director of Employee Relations, and complained that the Hospital was violating numerous laws. He alleged in that letter that he was not being treated as favorably as another employee, Sue Lee, who was still receiving Baylor pay in a weekend night position. (Lee, the Hospital noted later, had never taken a leave of absence.) Auston's discussions with Martin eventually led him to file a formal grievance with the Hospital. After a formal hearing, the grievance panel decided to reinstate him, to delete any reference to his termination from his file, and to grant him two additional months of leave beginning November 2, 1993. The panel did not grant his request to be assigned to a supervisor other than Schubnell, and it said nothing about his Baylor position.

Shortly after the panel reached its decision, Martin told Auston that he would no longer work in the weekend position or receive Baylor pay. Schubnell decided instead to place Auston in a weekday, non-Baylor position. Auston took the news badly, writing a letter on December 15, 1993, to Defendant Theodore Leiterman, Executive Vice President of the Hospital, threatening to sue on a variety of grounds if he were not returned to the precise job he had before his leave. Letters and threats continued during December, culminating with a meeting between Martin and Auston on December 29...