talk to the other Physicians whose names he had

asked for and received. Because this will

significantly affect my career in Anesthesiology,

I respectfully ask that a complete and sufficient

inquiry into this be done. Talking only to the

one Physician who initiated the accusation and

the Medical Director who signed the termination

slip, is insufficient in my opinion.

In an affidavit, plaintiff states: "Very shortly [after
August 4, 2000], I demanded from Drs. Feld and Albrecht that I be
given a hearing and an opportunity to be heard regarding my
termination from the University's program; they did not provide
me with one pursuant to my requests." Pl. Aug. 27, 2003 Aff.
"17. Plaintiff does not specify whether these were oral
requests or written requests. He does not provide any details as
to the language of these requests. Perhaps the purported request
to Albrecht is meant to refer to the request in the August 10
letter that there be "a complete and sufficient inquiry."
Particularly in light of Feld's and Albrecht's denials that any
oral request for a hearing was made to either of them,
plaintiff's affidavit is not specific enough to establish that
any oral request for a hearing was made in August 2000.

In calendar year 2001, plaintiff applied for medical
residencies through the Electronic Residency Application Service

("ERAS") .7 He did not obtain a resident position through that

Process nor has he in subsequent years. The only offer of

7In the ERAS application, plaintiff lists the Ayr
Hospital residency as being from August 1999 to February 1999
(sic). As the reason for leaving, he wrote “six month contract
breeched and finished."

- 19 -


Id. (quoting Malien, 486 U.S. at 242).

Here, plaintiff had a significant interest in resolving
his residency status and it was possible, though not necessarily
likely, that the pretermination decision would be overturned.
Plaintiff had an interest in quickly resolving the situation
because substantial delay in his being reinstated may have
allowed his medical skills to become stale such that, by March
2003, he no longer had the ability or qualifications to begin a
residency even if his dismissal had been overturned. Two and
one-half years was too long to wait. Cf. Sonnleitner, 304 F.3d
at 714. The question exists, though, as to whose fault was the
delay. If the delay was largely attributable to plaintiff, see
Yorktown Medical Laboratory, Inc. v, Perales, 948 F.2d 84, 90 (2d
Cir. 1991), or the University's delay was otherwise justified,
then there could be no due process violation resulting from the
delay.

Although plaintiff was not promptly provided with written
notice of his termination, he was nevertheless entitled to
request a hearing any time after his residency was terminated,
but no later than 14 days after receiving written notice. The
only evidence that plaintiff presents of having requested a
hearing prior to November 2002 is the August 10, 2000 fax to
Albrecht in which plaintiff states in part: "I respectfully ask
that a complete and sufficient inquiry into this be done." This

is not a clear request for a hearing. An “inguiry" would be an

- 40 -


pretermination process that was provided was sufficient to
satisfy due process. In any event, plaintiff was also provided
with a formal hearing which more than satisfied the process

to which he was entitled. To the extent plaintiff was
constitutionally entitled to any further process following
defendant's pretermination decision, plaintiff would be entitled
to an impartial decisionmaker. Although plaintiff contends the
hearing panel was not impartial, he fails to provide evidence to
overcome the presumption of impartiality. Cf. Head, 225 F.3d at
803; Ryan, 185 F.3d at 762.

Plaintiff contends that a due process violation occurs
where a public entity violates its own rules and procedures,
apparently contending the procedural requirements of Exhibit B of
the Agreement were not followed. Plaintiff does not identify
what procedure was violated,’ but, even assuming one of the
Procedures was not followed, this contention is without merit. A
procedure required by contract, statute, or regulation does not

create a constitutionally protected right nor does violation of a

Plaintiff may be contending the delay in providing the
notice of termination violated the procedural provisions of
Exhibit B. That, however, is not true. The body of the
Agreement does not require written notice of termination. See
Agreement § 10(b). Exhibit B does not expressly require written
notification of termination; it only sets the time for the
resident's request for a hearing based on when written notice is
provided. A resident could request a hearing prior to written
notice, but no later than 14 days after written notice. But even
if Exhibit B is read as implicitly requiring written notice of a
termination, it does not set a deadline for providing written
notice, The University did eventually provide written notice.

- 36 ~


discharge, even if it affects further employment opportunities,
does not by itself satisfy the first element. R. iff v it
ilwa e, 795 F.2d 612, 625 (7th Cir. 1986). Additionally,

plaintiff has not shown that he was actually foreclosed from
any employment opportunity as a result of the discharge.
Contrary to plaintiff's contention, he must show an actual
denial of an employment opportunity caused by the stigmatization.
Townsend, 256 F.3d at 670. Moreover, plaintiff was subsequently
provided with a hearing that upheld his discharge on grounds of
dishonesty. Therefore, even if he can show public disclosure of
the stigmatization that affected an employment opportunity, he
cannot contend that it was without due process. As discussed in
§ II(B) (3) sw , the hearing that was provided was adequate.
And even if there was delay, that is immaterial since the grounds
for the termination were upheld. There is no evidence that an
earlier hearing would have instead resulted in his name being
cleared,

Count Five will be dismissed.

D. Class of One

An equal protection claim based on a "class of one" may
be brought "where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in
treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). To make out such a claim, it must be shown that the

defendant acted with vindictiveness, ill will, or some other

- 45 -


a) by the University in the event the Resident
fails to obtain the appropriate medical
license from the State of Illinois within
thirty (30) days of the commencement date of
this Agreement. In lieu of termination, the
University may take such disciplinary action
against the Resident it deems appropriate
including suspension without pay from the
program.

b) by the University upon the failure of the
Resident to comply with the terms and duties
described in this agreement.

c) by the Resident upon the University's
failure to comply with the terms of this
Agreement provided the Resident furnishes
thirty (30) day advance written notice to
the University.

d) by mutual agreement of the parties as
evidenced in writing.

11. Procedural Right: In the event this
Agreement is terminated by the University or the
Resident is disciplined, the Resident shall have
such procedural rights as set forth in Exhibit B
attached hereto. Such rights shall not be
applicable if said termination is due to
Resident's failure to obtain or retain an
appropriate license from the State of Illinois or
if covered by paragraphs J, K, or L of exhibit B
attached hereto.

Exhibit B of the Agreement is a document entitled

“Procedural Rights to Suspension/Termination." Under the title,

“Effective date: July 1, 1991" is printed. Dr. Feld was not
personally involved in establishing the content of Exhibit B.
provides in part:

a. Within fourteen (14) days of written
notification of his or her suspension or
termination, a Resident may request an informal
hearing before a Committee, as more fully
described below. The Resident's request shall be
in writing and submitted to the Department Head
or such individual acting in a similar capacity
depending on the particular program the Resident
is enrolled in.

-~13-

It


Even assuming the transcript of the hearing is relevant
to the Count Seven tortious interference claim, plaintiff has not
shown that a genuine factual dispute exists as to whether a
violation of the Illinois Eavesdropping Act occurred, nor has
Plaintiff made a sufficient legal argument in support of such a
contention. As to supporting facts, plaintiff has not shown that
facts exist which do not constitute implied consent through
acquiescence to conversations knowingly being recorded. See
People v. Ceja, 204 Ill. 2d 332, 789 N.E.2d 1228, 1241 (2003).

As to any legal argument, plaintiff has made none.

Additionally, even if the recording itself were not
admissible,®° Feld was present at the hearing and states in his
affidavit that the transcript is accurate. Therefore, for
purposes of summary judgment, the transcript shows facts for
which Feld could provide testimony at trial, that is, Feld could
provide testimony as to what occurred at the hearing and who said
what. Cf. Jessup v. National R.R. Passenger Corp., 2002 WL
507124 *1 n.2 (N.D. Ill. April 3, 2002) (affidavit may properly
incorporate content of hearing transcript if affiant could
testify to the content based on personal knowledge). Plaintiff

provides no contrary evidence that the statements made at the

At a trial, the recording, not the transcript would be
the admissible evidence. Unless the parties stipulated to its
accuracy and admission, the transcript would only be provided as
an aid in listening to the tape recording. See United States v.
Jordan, 223 F.3d 676, 688-90 (7th Cir. 2000); United States v.
Singleton, 125 F.3d 1097, 1104-05 (7th Cir. 1997), cert. denied,
522 U.S. 1098 (1998); 7th Cir. Crim. Jury Instr. 3.17.

App. 20


defendant has provided authentication. See Schwartz Aff. 1 3;
Bailie Aff. 7 5.

The separately raised objections to plaintiff's
deposition and Def. Exh. L-55 and L~57a are separately discussed
below.

None of the summary judgment exhibits submitted by
defendant will be ignored because lacking adequate foundation or
authentication. Whether any of the exhibits contains
inadmissible hearsay or other inadmissible content is a distinct
issue that will be addressed separately.

B. Hearsay Objections (1, 5, 7, 12, 16)

A number of plaintiff's objections include objections of

hearsay. These will be addressed together. First, plaintiff
contends that no potentially hearsay evidence may be considered
unless defendant's statement of facts expressly articulates the
basis for admission. That contention is without merit. While
the burden is on the proponent of the evidence to make a
sufficient showing that any particular piece of evidence is
admissible, United States v. Robbins, 197 F.3d 829, 838 (7th Cir.

1999); American Automotive Accessories, Inc. v. Fishman, 175 F.3d
534, 540 (7th Cir. 1999), evidentiary objections must first be

raised by the opposing side. See Zayre Corp. v. S.M. & R. Co.,

882 F.2d 1145, 1150 (7th Cir. 1989); Gorence v. Eagle Food

Centers, 1999 WL 199619 *3 (N.D. Ill. April 1, 1999), aff'd,
242 F.3d 759 (7th Cir. 2001). There is no rule preventing a

party moving for summary judgment from responding to evidentiary

App. 5


denies that Def. Exh. L~46 is an accurate copy of the
application. The objections generally do not identify the
purported inaccuracy and plaintiff does not point to any
deposition testimony or affidavit supporting the document

is inaccurate. Defendant provides the affidavit of the
Administrator of the Department of Anesthesiology (Mickey Leavy)
who identifies herself as the Department's keeper of records.
She authenticates the application as does defendant. Plaintiff
does not create any genuine factual dispute that Def. Exh. L-46
is not authentic.

Defendant submits four letters identified as letters

from plaintiff, one addressed to defendant (L-21), two to Leavy
(L-26, L-29), and one to Dr. Ronald Albrecht (L-25). Plaintiff
apparently denies the authenticity of these letters. However,
plaintiff points to no deposition testimony or affidavit denying
he authored and sent these letters. Each of the recipients
identifies the respective letters as an accurate copy of a letter
he or she received from plaintiff. Feld Aff. {@ 15; Leavy Aff.
q@ 8; Albrecht Aff. 7 9. Additionally, a reasonable finder of
fact could only find that the signature of plaintiff matches
other authentic signatures contained in the record, e.g., the
signature on his own affidavit. Albrecht also authenticates a
letter he sent to plaintiff. See Def. Exh. L-36; Albrecht Aff.
@ 13. These letters have been adequately authenticated.

Defendant provides two e-mails purported to be from

plaintiff to Leavy, one of which is requested to be printed and

App. 3


described, defendant does not present any evidence regarding
other applicants.

The only evidence defendant presents on this subject is
evidence that the criteria for enrollment in the program has
changed since the time that plaintiff was first admitted,
Plaintiff does not point to a request for such information nor a
failure to adequately respond to such a request. In any event,
the change in admission criteria is not material to today's
decision. Thus any dispute about disclosures related to this
subject need not be resolved.

Plaintiff also complains that, had defendant provided
applications of other applicants, he could have shown that
submissions of other documents were date stamped whereas some of
his were not. Plaintiff contends this would show that some of
the documents that defendant contends are part of his application
really were not. Plaintiff, however, could have made such a
showing even without discovery as to other applicants' files.
Plaintiff could have provided his own affidavit or declaration
attesting to the documents he actually submitted. Also, to the
extent his date-stamping theory has credence, he could have shown
that some of the documents said to be part of his application
were date stamped while others were not.

D. Objection 3

Plaintiff asserts that "issues of motive or intent are

generally inappropriate subjects to be decided on a motion for

summary judgment.” While it may be true that issues of motive

App. 9


proof, but that does not preclude crediting the statement that
the identified exhibit was received. As was previously
discussed, see App. § A supra, there is adequate proof as to the
authenticity of the letters included among defendant's exhibits.
F. ectio

Objection 6 is that statements in certain affidavits are
not supported by a proper foundation. The nature of this
objection is not clear. Plaintiff cites Swift Brothers v.
Swift Sons, Inc., 921 F. Supp. 267 (E.D. Pa. 1995), in support of
this contention, without any specific page citation. That case,
however, contains no holding as to foundation. It does have a
holding concerning hearsay. See id. at 277. In any event, it
will be considered whether an adequate foundation exists for
statements or documents referenced in an affidavit or testimony.

G. Objection 8

Plaintiff contends it is improper to "assert legal and
other conclusions in a statement of material facts." It is true
that legal conclusions should not be contained in a Rule 56.1
statement. See Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill.
2000). However, a witness may testify to conclusions he or she
infers from the underlying facts. See Fed. R. Evid. 701, 704(a).
A summary judgment affidavit may include inferences and opinions
as long as they are based on underlying facts of which the
affiant has personal knowledge. Payne v. Pauley, 337 F.3d 767,

772 (7th Cir. 2003); Drake v. Minnesota Mining & Manufacturing
Co., 134 F.3d 878, 887 (7th Cir. 1998). And the Rule 56.1

App. 12


A. Objection 1

Plaintiff objects that certain documents have not been
specifically authenticated by an affidavit, including application
documents he purportedly submitted to the University, letters or
e-mails purportedly sent by plaintiff, and records of the
University.

It is true that documents submitted in support of a
summary judgment motion must be authenticated in order to be
admissible. Scott v. Fdinburg, 346 F.3d 752, 759-60 & n.7 (7th
Cir. 2003). Authentication "is satisfied by evidence sufficient
to support a finding that the matter in question is what its
proponent claims." Fed. R. Evid. 901(a). This includes
"[tlestimony that a matter is what it is claimed to be." Id.
901(b) (1). Documents produced by an opponent during discovery
may be treated as authentic. International Paper Co. v.
Androscoggin Energy LLC, 2002 WL 31155069 *2 (N.D. Ill. Sept. 26,

2002); Spears v. Delphi Automotive Systems Corp., 2002 WL 1880756

*6-7 (S.D. Ind. Aug. 15, 2002). Where authenticated documents
containing a person's signature are in the record, the finder of
fact may determine whether other documents contain an authentic
signature. Fed. R. Evid. 901(b) (3); United States v. Papia,

910 F.2d 1357, 1366 (7th Cir. 1990); United States v. Spano,
2002 WL 31557624 *4 (N.D. Ill. Nov. 18, 2002); Electronics
Boutigue Holdings Corp. v. Zuccarini, 2001 WL 83388 *5 n.7 (E.D.
Pa. Jan. 25, 2001), aff'd by unpublished order, 33 Fed. Appx.

APPENDI


harms, it was found that reinstatement to suspended status was
appropriate relief. See id. at *6-8. Neither party makes any
argument that this reinstatement affected any right to notice, a
hearing, or reinstatement that plaintiff otherwise had.

Approximately November 1, 2002, plaintiff received a
letter signed by Albrecht (Def. Exh. L-36) which the parties
agree was the first written notice plaintiff received from the
University that his residency had been terminated. The notice
also advised plaintiff of his right to request a hearing as to
his "status" with the University and the Program. The notice
listed three grounds for his termination: (1) providing false
and misleading information about past "skeletons," specifically
the failure to disclose problems at Ayr Hospital; (2) being
ineligible for employment because still lacking a visa and
Illinois medical license after August 1, 2000; and (3) being
unqualified to provide anesthesiology services to patients.

A hearing was held on March 3, 2003. Present at the
hearing were the three members of the hearing panel (David
Schwartz, Charles Lurido, and Nancy Burke), Feld, and Fenje.
Jose Salazar, who was recording the hearing, was also present.
The three panel members were all physicians employed in the
Anesthesiology Department. None of them were involved in
plaintiff's application process and none had been previously
aware that plaintiff had been admitted into the residency Program

and then terminated. All three panel members knew Feld from

- 23 -



investigation by Albrecht or others at the University. That is
not the same as a hearing. Moreover, there is no evidence that
plaintiff followed up on the request by inquiring when a hearing
would be scheduled. This should not be understood as a request
for a hearing. There is no evidence that plaintiff requested a
hearing prior to November 2002." Perhaps plaintiff's position
is that defendant was at fault for failing to issue a written
notice of termination advising him of his right to a hearing or
that the University was making it clear that it did not believe
he was entitled to a hearing and therefore would not have
provided one even if requested. Plaintiff, however, does not
spell out such an argument nor does he provide any evidence of a
refusal on the University's part. However, there is also a
burden on defendant to show a justification for the delay.
Defendant does not attempt to provide either a factual or legal
argument justifying the delay. All defendant does is cite to De
Vito and assert that a two-year delay is not automatically a
constitutional violation. On the facts and arguments before the
court, it cannot be determined whether the delay was justified.
But even assuming plaintiff was entitled toa

posttermination hearing and that the delay did not comport

“The present lawsuit was not filed until December 19,
2001, over 16 months after plaintiff's residency had been
terminated. The complaint requested reinstatement as relief, not
a hearing. Plaintiff does not present any evidence that he
requested a hearing between the time the suit was filed and when
the University provided written notice of the termination.
Defendant also presents no evidence regarding what happened
during this time period.

-41-


overcome the evidence to the contrary. There is no contention or
evidence that plaintiff expressly consented to the recording, but
he has not provided sufficient evidence to support a genuine
factual dispute as to whether or not he was aware the recording
was occurring. On defendant's summary judgment motion, it must
be taken as true that plaintiff was aware the hearing was being
recorded.

In any event, even if plaintiff was unaware a recording
was being made and did not consent to it, he makes no legal
argument as to why that is a basis for excluding the recording
from evidence. Even recorded conversations that violate state
law are admissible in federal proceedings, at least in regard to
federal claims, if the recordings comport with the federal
requirement that one party consent. United States v. D'Antoni,
874 F.2d 1214, 1218-19 (7th Cir. 1989); United States v.
Goodapple, 958 F.2d 1402, 1410 n.3 (7th Cir. 1992); Unite
States v. Teller, 412 F.2d 374, 377 (7th Cir. 1969), cert.
denied, 402 U.S. 949 (1971); Glinski v. City of Chicago, 2002 WL

113884 *4 (N.D. Ill. Jan. 29, 2002); Johnson v. Around The Clock

Security, Inc., 2002 WL 472269 (N.D. 111. March 28, 2002).
But see G.M. Harston Construction Co. v. City of Chicago, 209

F. Supp. 2d 902, 906 (N,D. Ill. 2002); Mi v._ Roadw. x) s
Inc., 135 F. Supp. 2d 884, 891-92 (N.D, Ill. 2001). Glinski,
2002 WL 113884 at *5~7, holds that violation of Illinois's
Eavesdropping Act precludes use of such evidence in support of

state law claims.

App. 19


to show evidence of purportedly disputed facts if those facts are
not plausible

in light of the entire record. See NLFC, Inc. v. Devcom

Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied,

515 U.S. 1104 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481,
485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd.,
844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852
(1988). As the Seventh Circuit has summarized:

The party moving for summary judgment
carries the initial burden of production to
identify "those portions of the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence
of a genuine issue of material fact." Logan v.
Commercial Union Ins. Co., 96 F.3d 971, 978 (7th
Cir. 1996) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986) (citation and internal quotation
omitted)). The moving party may discharge this
burden by "'showing'--that is, pointing out to
the district court--that there is an absence of
evidence to support the nonmoving party's case."
Celotex, 477 U.S. at 325, 106 S. Ct. 2548. Once
the moving party satisfies this burden, the
nonmovant must "set forth specific facts showing
that there is a genuine issue for trial." Fed.
R. Civ. P. 56(e). "The nonmovant must do

more, however, than demonstrate some factual
disagreement between the parties; the issue

must be 'material.'" Logan, 96 F.3d at 978.
“Irrelevant or unnecessary facts do not preclude
summary judgment even when they are in dispute."
Id. (citation omitted). In determining whether
the nonmovant has identified a "material" issue
of fact for trial, we are guided by the
applicable substantive law; “[o]nly disputes that
could affect the outcome of the suit under
governing law will properly preclude the entry of

summary judgment." McGinn vy. Burlington Nor
R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996)
(citation omitted). Furthermore, a factual

dispute is "genuine" for summary judgment


also provided. See Fenje Dep. at 1, 90-92, 282-84, 353-54, 356,
392. The deposition excerpts will be considered.
N. Objection 15

Plaintiff objects that certain paragraphs of Def.
56.1(a) (3) contain improper characterizations in that they assert
opinions and argumentative characterizations. Most of the
objected to paragraphs contain statements as to state of mind or
causation. If supported by the cited exhibits, such statements
are proper factual statements. In any event, the court will only
credit adequately supported facts.

QO. Objection 17

Plaintiff contends some of defendant's citations to the
record are not specific enough.** These objections are generally
without any merit whatsoever. This objection is sometimes
included when specific paragraphs of an affidavit are cited. It
is also frequently used when defendant cites a page of:a
deposition. Such a citation is sufficient; the party need not
cite exact lines of a deposition. Defendant has some citations
to multiple pages of a deposition, but that is because the
pertinent testimony (sometimes interspersed with objections of
plaintiff's counsel or lengthened by evasive answers of
plaintiff) is of that length. No citation in any of defendant's

Local Rule 56.1 statements has been found to be so lacking in

%such objection is ironic coming from a party that often
cites lengthy cases without specific page citations.

App. 22


hearing were other than as reflected in the transcript. There is
no genuine factual dispute as to what occurred at the hearing.

To the extent plaintiff is contending that statements
made at the hearing are inadmissible hearsay, that contention is
also without merit. The entire hearing can be considered as
evidence of procedures that were provided to plaintiff and
information that was before the hearing panel in making its
decision. Id; App. § B supra. See also Scherer v. Rockwell
International Corp., 975 F.2d 356, 358 n.2 (7th Cir. 1992)
(dictum). That would not be hearsay since the statements would
not be being used to show the truth of the matter contained
therein. Additionally, plaintiff's statements at the hearing are
nonhearsay admissions that defendant may present as evidence,
just as plaintiff may use statements Feld (and possibly others)
made at the hearing. See App. § B supra.

The transcript of the March 2003 hearing may properly be
considered on summary judgment.

M. Objection 14

Plaintiff contends the portions of his deposition that
have been presented may not be used because not properly
certified. See Fed. R. Civ. P. 30(f), 56(e); Pfeil v. Rogers,
757 F.2d 850, 859-60 (7th Cir. 1985), cert. denied, 475 U.S. 1107
(1986). The transcript excerpts that are provided, however,
contain the title page showing the title of this case and that

plaintiff is the deponent and the reporter's certification is

App. 21


from this district has construed "short" to mean the paragraph
should contain “only one or two individual allegations." Malec,
191 F.R.D. at 583. There is no present need to precisely
quantify what is meant by “short." None of the objected to
paragraphs can be characterized as either long or complex. They
are all short, simple, and clear enough to be readily amenable to
response. No factual assertion of defendant will be ignored
because contained in a too lengthy or complex paragraph. Compare

Graney v. Hartford Financial Services, Inc., 2002 WL 31248509 *2

(N.D. Ill. Oct. 4, 2002).


a student for academic reasons requires an expert evaluation of
cumulative information and is not readily adapted to the
procedural tools of judicial or administrative decisionmaking.”
Id. The reluctance to interfere with the academic process is
greater the higher the level of education. Id. at 90; Shaboon v.
Duncan, 252 F.3d 722, 730 (5th Cir. 2001).

A medical residency is a hybrid position in which the
resident is both a student and an employee. However, it is
primarily a learning position for which the limited due process
rights afforded an academic decision about a student apply.
Shaboon, 252 F.3d at 729-32; Ezekwo, 940 F.2d at 784-85; Davis v.
Mann, 882 F.2d 967, 974 (5th Cir. 1989). The Supreme Court was
clear that no hearing is required regarding academic decisions.
Horowitz, 435 U.S. at 90; Shaboon, 252 F.3d at 730; Ezekwo, 940
F.2d at 785; Davis, 882 F.2d at 975. The Supreme Court did not
make clear what minimal procedures are required. As to medical
residencies, case law holds that notice of the grounds for the
decision and an opportunity to respond is sufficient. Shaboon,

252 F.3d at 730; Ezekwo, 940 F.2d at 785; Davis, 882 F.2d at 975.

Academic grounds for dismissal from a residency program
include reasons that go to the resident's fitness to perform as a
doctor. Shaboon, 252 F.3d at 731. Issues as to having the
proper character to be a doctor are academic grounds. Cf.
Horowitz, 435 U.S. 91 at n.6 ("Personal hygiene and timeliness
may be as important factors in a school's determination of

whether a student will make a good medical doctor as the

- 34 -


employment that plaintiff has received since August 2000 was to
work for Western Health Care Corporation in Newfoundland, but he
could not take that position because he did not have or obtain
the necessary medical license. Plaintiff has not had any paying
position since August 2000. The only type of medical training
plaintiff has participated in since August 2000 was being in the
department of family medicine at Royal Jubilee Hospital in
October and November 2000 in order to learn psychiatry.

Feld and Albrecht have not told anyone outside the
University of plaintiff being terminated from the Program. No
employer or other resident program has contacted them for a
reference for plaintiff. Plaintiff states in an affidavit that
he must explain in employment and residency applications his
termination and the gap in his employment and that "friends,
family members, and others" know of his termination.® Pl.

Aug. 27, 2003 Aff. WI 22-24. Plaintiff, however, does not
identify any specific employers or persons with whom he has had
such discussions. Moreover, these statements in his affidavit
are contradicted by his deposition testimony and other evidence.
The 2001 ERAS application makes no mention of plaintiff's
residency experience at the University and plaintiff testified at
his deposition that he could not recall whether he was

interviewed for any resident positions or whether he applied in

*The only nonhearsay evidence of this would be that
plaintiff discussed the matter with his friends, family, and
others.

- 20 -


interview with Dr. Feld did in fact take place

well after December 1999.

Based upon my findings, I believe that Dr.

Feld acted appropriately in denying you the

position.

Def. Exh. L-81. Again, there is no evidence that Bailie's
decision would have been different had the initial hearing been
held closer in time to plaintiff's actual dismissal.

Plaintiff provides no competent evidence that he suffered
any emotional injury as a result of any delays in providing him
with a hearing.® The only evidence of emotional injury that
plaintiff points to is one sentence of an affidavit. "The
University's delay in offering me a purported hearing regarding
my termination from the University's program for approximately
two years has led to emotional distress for me, and I am claiming
damages for this in my lawsuit." Pl. Sept. 29, 2003 Aff. @ 44.

But when the injured party's own testimony is the

only proof of emotional damages, he must explain

the circumstances of his injury in reasonable
detail; he cannot rely on mere conclusory
statements. Biggs v. Village of Dupo, 892 F.2d
1298, 1304 (7th Cir. 1990). Thus, we have said
that bare allegations by a plaintiff that the
defendant’s conduct made him "depressed,"
“humiliated, or the like are not sufficient to

‘Defendant also contends that plaintiff has waived any
claim for emotional injuries based on his response to an
Interrogatory. See Def. Exh. J Answer 8. Additionally,
defendant contends that any present testimony of suffering
emotional injury cannot be credited because it would contradict
plaintiff's deposition testimony where he did not include
emotional injury in response to a question of what harm has
resulted from delays in receiving a hearing. See Pl. Dep. 55-63.
Since plaintiff does not presently provide competent evidence of
emotional injury, those issues need not be decided.

~ 26 -


defendant's summary judgment motion, it will be assumed to be
true that plaintiff's ability to obtain admission into another
residency program is now more difficult in light of his not
having practiced or been in training (other than for a couple
months) during the last few years. There is, however, no
competent evidence that that situation or his termination from
the Program has actually been the cause of his being denied any
employment or training opportunity.

On May 29, 2002, a preliminary injunction was entered
against defendant in his official capacity:

ordering that (1) by no later than May 30, 2002,

plaintiff is to be temporarily reinstated into

the anesthesiology residency program of the

University of Illinois at Chicago Medical School;

(2) upon reinstatement, plaintiff shall be under

indefinite suspension without compensation,

benefits, accrual of seniority, the right to any

training, or the authority to treat patients; and

(3) this order shall remain in force until final
judgment is entered in this case or this case is

. dismissed
Judgment dated May 28, 2002 [24]. See also Fenje v. Feld, 2002
WL 1160158 *8 (N.D. Ill. May 29, 2002) ("Fenje II"). On

plaintiff's motion for preliminary relief, it was found that he
had failed to show that he had any more than a limited
possibility of success, but that he faced the possibility of
losing his U.S. Educational Commission for Foreign Medical
Graduates certificate if not reinstated whereas there was no
significant harm to the University from a "paper" reinstatement

of plaintiff. Balancing the likelihood of success and potential

- 22 -


student's ability to take a case history or diagnose an
illness.”). The determination that plaintiff lacked the
candor or honest character necessary to be a resident and
anesthesiologist was a dismissal based on academic grounds,
not a disciplinary decision.

Here, prior to his termination, plaintiff was given
notice of the potential grounds for his dismissal and an
opportunity to present his response and attempt to convince Feld
not to dismiss him. That was sufficient process in plaintiff's
Situation. Additionally, there is no contention that, as of the
time of the pretermination process, defendant was not an
impartial decisionmaker. In any event, impartiality is presumed
and plaintiff has not provided any basis for overcoming that
presumption. See Head, 225 F.3d at 803; Bakalis v. Golembeski,
35 F.3d 318, 325~26 (7th Cir. 1994); Alexander v. Board of
Education of Indian Prairie School District No. 204, 1998 WL
699020 *9 (N.D. Ill. Oct. 5, 1998). See also Ryan v. Illinois
Department of Children §& Family Services, 185 F.3d 751, 762 (7th

Cir. 1999). Plaintiff received adequate pretermination process.

Count One will be dismissed.
3. Posttermination Hearing
Plaintiff's claims concerning the denial of a timely
posttermination hearing fail for a number of reasons.
As was already discussed in § II(B)(2) supra regarding
pretermination process, plaintiff was entitled to only limited

process and was not entitled to a formal hearing. The

- 35 -


competency to deliver patient care had been questioned, and
plaintiff's six-month residency had therefore been cut short.
After discussing the matter with Albrecht and other
members of the informal selection committee, defendant concluded
that plaintiff should not be a resident in the Program. The
others agreed as well.S Approximately August 4, 2000, defendant
telephonically informed plaintiff that a decision had been made
to terminate his participation in the Program.* Although the
Agreement provided that plaintiff's residency began August 1, he
had not actually reported for duty yet and had not yet obtained a
visa to come to the United States. Ina July 26, 2000 e~mail to
Leavy, plaintiff had reported he still needed to obtain more

documentation for his medical license application, he did not yet

SAlbrecht states in his affidavit (1 7) that he made the
final decision. However, plaintiff points to a May 14, 2002
affidavit of defendant (1 7) from which it can be inferred that
defendant himself made the ultimate decision that plaintiff
should not be in the Program. Also, defendant's current
affidavit ("@ 12) is ambiguous as to who made the final decision.
On defendant's summary judgment motion, it is taken as true that,
following consultation with the others, defendant personally made
the decision that plaintiff should not be in the Program.

‘Defendant characterizes the termination as the
withdrawal of the offer because he contends he would not have
been aware of whether plaintiff and University officials had
already signed a residency agreement. However, defendant's
June 19, 2000 letter confirms plaintiff's prior acceptance and
refers to an August 1, 2000 start date. Therefore, it can
reasonably be inferred that defendant was aware (or at least
believed) that plaintiff's residency had already begun. In any
event, under the terms of the Agreement, the residency had begun
on August 1, 2000, so preventing plaintiff's further
participation in the Program would be a termination regardless of
what defendant may have believed plaintiff's status was as of
August 4, 2000.

-17-


specificity that the pertinent portion of the record cannot be
located.
PR. Objection 18

Plaintiff objects to three paragraphs of Def. 56.1(a) (3)
as being immaterial. Objecting to materiality does not deny a
fact. If that were the only objection, the fact would be deemed
admitted, L.R. 56.1(b) (3) (B); Richter v. Village of Oak Brook,
2003 WL 22169763 *4 nn.14,16 (N.D. Ill. Sept. 19, 2003), though
its materiality would still be a legal issue going to the merits
of the summary judgment motion. To the extent any of the
ebjected to paragraphs contain immaterial facts, those facts will
either not be mentioned at all in reciting the facts assumed to
be true for purposes of summary judgment or their consideration
will not affect the outcome. One of the paragraphs though, Def.
56.1(a) (3) 9 35, clearly contains immaterial facts. That
plaintiff testified at his deposition that he was unaware of any
motive for Feld's actions other than those Feld has stated is not
material. To the extent Feld's motive is a material issue for
summary judgment, plaintiff's perceptions as to that motive as of
the time of his deposition do not matter. All that would matter
is whether defendant, through counsel, presently presents
evidence raising a genuine factual dispute as to Feld's motive.

Q. Objection 19

Plaintiff contends that some of the paragraphs in Def.

56,.1(a) (3) contain multiple assertions in violation of L.R.

56.1(a)'s requirement of "short" paragraphs. At least one case

App. 23


See also Scott, 346 F.3d at 759 n.6. This rule applies to the
nonmoving party as to factual issues on which he will bear the

burden of proof. Chapple v, National Starch & Chemical Co. &

Oil, 178 F.3d 501, 504 (7th Cir. 1999) (quoting Chemsource
Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997)).

It generally does not apply to the moving party's initial burden.
As previously stated, the moving party need not provide
affidavits or deposition testimony showing the nonexistence of
essential elements of the nonmoving party's claim. Celotex, 477
U.S. at 324. Thus, conclusory evidence as to those issues is
more than sufficient. It is only as to factual issues on which
defendant bears the burden or otherwise must make an affirmative
showing that he must present non-conclusory evidence.”

Additionally, as to certain simple and straightforward
facts, conclusory testimony or affidavit statements will suffice.
For example, to show that he received a letter, it is sufficient
for the affiant to simply state that he or she received an
identified document. See, e.g., Feld Aff. 7 15; Albrecht Aff.
G9. That is not a statement that must be ignored because

conclusory. Whether the letter is authentic and was actually

‘written or sent by the purported author may require additional

"To the extent the movant is seeking to overcome
evidence presented by the nonmovant, the movant would need to
present non-conclusory evidence. In most such situations,
however, that the nonmovant has evidence supporting its position
would mean that a genuine factual dispute exists. The movant's
evidence would have to be so overwhelming and conclusive as
compared to the nonmovant's evidence that no genuine factual
dispute exists.

App. 11


Defendant James Feld, M.D., is a licensed physician in
the state of Illinois. During times pertinent to this
litigation, defendant served as the chair of an informal
selection committee for the University's Anesthesiology Residency
Training Program (the "Program"). The selection committee makes
recommendations as to admission to the Program with the final
decision being made by Ronald Albrecht, M.D., who, as Director of
the Anesthesiology Department, is technically also the Director
of the Department's Residency Program. However, in the letter to
plaintiff confirming plaintiff's acceptance into the Program,
Feld inserted the title Director of the Program under his
signature. In an affidavit previously submitted in opposition to
plaintiff's motions for preliminary relief, defendant expressly
stated he was Director of the Program. On defendant's summary
judgment motion, it is taken as true that Feld was the de facto
Director of the Program even if he did not have that actual
title.

In 2000, plaintiff submitted an application to the
Program. Just above plaintiff's signature, the application form
includes the following:

I have read and I understand the instructions for

the completion of this application. I certify

that the information submitted on these

application materials is complete and correct to

the best of my knowledge. I understand that any

false or misleading information may disqualify me
for this position.



permitted, to provide patient services. Defendant had some time
to make a decision about terminating plaintiff before he would
actually be reporting for duty. Still, the University instead
offered the position to a different applicant, so it did have
some interest in quickly resolving plaintiff's status so that it
could fill the position if necessary.

As to any risk of error, that was not a factor that
called for more extensive procedures. Here, plaintiff did not
dispute that he was asked about problems or skeletons nor did
he dispute that he did not reveal the dismissal from Ayr Hospital
during the oral interview. His application itself showed whether
the Ayr Hospital experience had been disclosed in those papers.
If the decision to terminate plaintiff's participation had
been made based on whether plaintiff actually provided poor
patient services at Ayr Hospital, further investigation and
pretermination procedures might have helped. However, that was
not the basis for the decision. It is undisputed that the only
basis for the termination decision was the failure to disclose
the residency and quick dismissal at Ayr Hospital, the facts of
which were not in dispute. The only real question was whether
the failure to disclose was such an indication of dishonesty that
plaintiff did not have the appropriate character to participate
in the Program and be an anesthesiologist.

Another consideration going to the private interests
involved and the appropriateness of pretermination procedures is

whether posttermination procedures would also be available, as

- 32 -


Dunning (f/k/a Klikunas) is the Information Services
Officer/Licensing Specialist with the University's Office of
Graduate Medical Education. She provides information regarding
procedures for obtaining medical licenses and the attempt to
obtain a medical license for plaintiff. She also states that
Feld did not inform her in August 2000 that he had withdrawn
the offer to plaintiff. Additionally, Dunning provides
authentication for two exhibits (L-37, L-43), for which other
means of authentication is also provided. Defendant contends he
adequately disclosed Dunning in response to Interrogatory No. 2.
The only reference to Dunning contained therein is a reference to
a July 20, 2000 e-mail from "Kikunas (sic)" to plaintiff.*® The
subject of the e-mail is problems with plaintiff's Illinois
medical license application. This was sufficient notice to
plaintiff that Dunning (Klikunas) was a potential witness as to
the subjects on which she presently provides affidavit testimony.
Cf. Ecoco, Inc. v. Universal Beauty Products, Inc., 1998 WL
887072 *2 (N.D. Ill. Dec. 11, 1998). Alternatively, even if the
disclosure was deficient in not specifically reciting Dunning's
potential testimony, plaintiff was not harmed. Plaintiff had
sufficient notice and awareness of Dunning's role such that he

had adequate information on which to decide whether or not to

4A copy of this e-mail is provided with Def. 56.1(a) (3)
Reply [117]. It is attached to and authenticated by Dunning's
supplemental affidavit and labeled as Def. Exh. 13.

App. 16


depose her. Plaintiff provides no specific argument to the
contrary.*® Dunning's affidavits will be considered.
J. Objection 11

Plaintiff objects to statements in affidavits based on
what a person "heard," "felt," or "thinks." The quoted words do
not actually appear in the affidavit statements to which
plaintiff objects. This objection is just a variation on
plaintiff's state of mind and hearsay objections. Such
objections are generally without merit. See App. § B supra., A
witness may testify as to his or her own state of mind. As to
other persons, the witness generally may only testify as to
another person's statements or conduct (to the extent not
inadmissible hearsay), but not as to the other person's actual
state of mind.

K. Objection 12

Issues of hearsay, App. § B supra; personal knowledge and
conclusory statements, App. § G supra; and foundation and
authentication, App. § A supra, have already been addressed.

L. Objections 13 & 20
Plaintiff objects to the use of the transcript created

from the audio tape of the March 2003 hearing. He objects that

Objection 10 itself does not mention specific witnesses
and only provides a citation to defendant's amended interrogatory
responses as a whole. No other background information is
provided. That plaintiff is objecting to Dunning can only be
determined because 10 is one of a string of objections listed in
Pl. 56.1(b) (3) (A) in response to each paragraph for which
defendant cites to Dunning's affidavit.

App. 17


an adequate foundation has not been laid. However, an adequate
foundation has been provided. See Salazar Aff. 4% 1-3; Mordan
Aff. 7 2; Feld Aff. @ 18; Schwartz Aff. 7 3.

Plaintiff also objects that the transcript should not be
considered because he was informed that any proceedings were not
transcribed or recorded, he was not aware the recording occurred,
and he never consented to such a recording. Contrary to
Plaintiff's contention, he was not told that the hearing would
not be recorded. The December 13, 2002 letter from Donna
Williamson upon which he relies instead states in response to his
written question: "8. Will the proceedings be transcribed or
recorded? The procedures do not provide for that, but the
Committee could decide to do so." The three hearing panel
members and Salazar all provide affidavits supporting that
microphones, the recording device, and Salazar were in plain view
during the hearing, that any person in attendance could see a
recording was being made, and that nobody objected to the
recording, The first sentence of the transcript is Schwartz
stating: "Jose [Salazar}, we're going to go on." At one point
the hearing was interrupted and plaintiff was advised that his
attorney wanted to speak to him. Following that interruption,
Schwartz stated: "Jose, we're off. Okay, we're going to go back
on. Dr. Fenje, could you continue, please." At the conclusion
of the hearing, Schwartz stated: "Thank you. We're off the
record." Plaintiff's conclusory statement in his affidavit that

he was unaware a recording was being made is insufficient to

App. 18


498 U.S. 821 (1990) (no property interest came into being
because, under applicable federal statute, Veteran
Administration's appointment of an unlicensed physician was void
ab initio). The failure to obtain a medical license should be
viewed as a possible cause for terminating the Agreement, which
is consistent with plaintiff's interest in the one-year
appointment being a property right.

Defendant's other contention is that no property interest
was created because the contract was contingent on the
truthfulness of the representations contained therein. Again,
this is a cause for termination, not a contingency that prevents
a property interest from coming into being. See Hostrop v. Board
of Junior College District No. 515, 523 F.2d 569, 574 (7th Cir.
1975), cert, denied, 425 U.S. 963 (1976); Rodney v. Secretary of
Army, _._ F. Supp. 2d ___, 2003 WL 22700868 *13 (D.D.C. Nov. 6,

2003).
2. Pretermination Hearing

Plaintiff contends that he was entitled to a
pretermination hearing. Where a public employee has a property
interest in a position, the employee ordinarily will have, absent
exigent circumstances, a right to notice and a reasonable
opportunity to respond prior to termination. an. yv. Suburban
Bus Division of Regional Transportation Authority, 52 P.3d 623,

628 (7th Cir. 1995); Patrick v, Miller, 953 F.2d 1240, 1245 (10th

Cir. 1992). However, due process is a flexible concept. Chaney,

52 F.3d at 628. The procedural due process requirements

- 29 -


Even if a party fails to authenticate a document properly
or to lay a proper foundation, the opposing party is not acting
in good faith in raising such an objection if the party
nevertheless knows that the document is authentic. See
Erickson v. Baxter Healthcare, Inc., 151 F. Supp. 2d 952, 971
{N.D. Ill. 2001); In re Interstate Steel Setters, Inc., 65 B.R.
312, 316 (Bankr. N.D. Ill. 1986). For example, although a
deposition transcript should be certified by the court reporter,
objecting that the certification is missing is inappropriate and
merely obstructive when the objecting party has no basis for
believing the transcript is inauthentic or inaccurate. This is
especially true when the certification is not missing.
Additionally, such oppositional conduct often does not serve the
client because it obscures possible meritorious contentions.
Nevertheless, the court will consider the objections that have
been raised. However, it is not this bench's practice to strike
any motions or any portion of a Rule 56.1 statement. To the
extent a factual statement is not adequately supported, it will
not be credited. The objections are generally addressed in the
Appendix attached to the end of today's Opinion (hereinafter
"Appendix" or "App."). The rulings that are recited in the
Appendix have been applied in setting forth the facts to be taken
as true for purposes of summary judgment.

Plaintiff's second objections to defendant's evidence in

support of its motions for summary judgment and motion to strike



purposes only when there is "sufficient evidence
favoring the nonmoving party for a jury to return
a verdict for that party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). Hence, a "metaphysical
doubt" regarding the existence of a genuine fact
issue is not enough to stave off summary
judgment, and "the nonmovant fails to demonstrate
a genuine issue for trial 'where the record taken
as a whole could not lead a rational trier of
fact to find for the non-moving party... .'"

Logan, 96 F.3d at 978 (quoting Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986)).

Outlaw, 259 F.3d at 837.

I. PLAINTIFF'S EVIDENTIARY OBJECTIONS

The parties and, especially, the attorneys involved in
this case have had a particularly contentious relationship.
At the deposition of plaintiff, repeated and unnecessary
interruptions and objections by plaintiff's counsel, as well as
evasive answers by plaintiff himself, resulted in the deposition
being continued to another date under the supervision of the
magistrate judge assigned to the case. Obstructive conduct has
again been exhibited in plaintiff's Local Rule 56.1(b) (3) (A)
statement ("Pl. 56.1(b) (3) (A)") responding to defendant's Local
Rule 56.1(a) (3) statement ("Def. 56.1(a)(3)"). Plaintiff objects
to virtually every assertion contained in defendant's statement
and also moves to strike the entire statement. Most of the

objections are without merit.


have a visa, and he would not be able to begin on August 1. Def.
Exh. L-16. Although plaintiff was orally informed by defendant
that his residency was terminated and plaintiff understood that
his residency had been terminated as indicated by subsequent
communications, see, e.g. Def. Exh. L-25, at the time plaintiff
was not provided written notice that his residency was terminated
nor was he advised of his contractual right to a hearing.

It is undisputed that defendant's basis for the
termination was plaintiff's failure to be candid, honest, and
forthcoming about possible problems in his background, especially
in light of the post-interview e-mail/letter again emphasizing
there were no problems. Whether plaintiff's performance in the
Ayr Hospital residency was actually deficient was not a basis for
the termination.

After defendant informed plaintiff of the termination,
plaintiff sent an August 10, 2000 fax to Albrecht (Def. Exh.
L-25) in which plaintiff acknowledges that Feld had ended his
participation in the residency Program. Plaintiff mentions the
termination related to the Ayr Hospital position, referring to a
six-month contract with Ayr Hospital and being terminated after
12 days because Gibson considered him "unsafe." Plaintiff denies
Gibson's accusations and mentions that he instituted breach of
contract proceedings regarding the Ayr Hospital dismissal.
Plaintiff closes the letter as follows:

In my opinion, Dr. Feld did not carry out as

complete an investigation into this as he
indicated initially he would. Dr. Feld did not

- 18 -


file its response to the objections [118] and that response has

been considered.

iI. DEFENDANT'S SUMMARY JUDGMENT MOTION
A. Facts

Resolving all genuine factual disputes and drawing all
reasonable inferences in plaintiff's favor, and resolving
plaintiff's objections in the manner discussed in the Appendix
infra, the facts assumed to be true for purposes of defendant's
motion for summary judgment are as follows.

Plaintiff Paul Fenje, M.D., presently resides in Canada.
In 1994, he graduated from medical school in Ireland. In his
September 29, 2003 affidavit, plaintiff represents that he is
presently licensed to practice medicine in Ireland, which may
constitute licensure for all of the European Union. As of
March 3, 2003, though, he testified that he was not then licensed
to practice in Great Britain or the United States. When asked
why he had no license, he did not mention being licensed in
Ireland and instead responded that he still had to complete Part
Two of the Medical Council Account Exam. It is undisputed that
plaintiff has never been licensed to practice medicine in any
state of the United States. Plaintiff's application to the
Program also indicates that he attended the University of Toronto
where he obtained a B.S. in biochemistry, an M.S. from the
Department of Clinical Pharmacology and Biochemistry, and had

worked toward a Ph.D. in the Department of Pathology.


being in the Anesthesiology Department, but were not social
friends of Feld.

At the hearing, plaintiff was not permitted to have his
attorney present nor did any attorney represent the University or
present charges. Fenje was permitted to present a written and
eral opening statement as well as other documentary evidence and
his own testimony. Feld spoke in favor of the termination.
Neither side was permitted to present any testimony other than
that of Fenje and Feld. Fenje and Feld were permitted to
question each other, though Fenje did not ask any questions of
Feld. Schwartz instructed the parties to submit documentary
evidence to the panel and each other prior to the hearing date.
No discovery was permitted specifically for the hearing, but, by
March 3, 2003, much of the discovery in this court case had been
completed.

The hearing panel unanimously upheld the decision to
terminate plaintiff's participation in the Program. The decision
was based solely on the first ground stated in the November 1,
2002 notice. Schwartz's March 11, 2003 written decision on
behalf of the panel states:

It is the unanimous opinion of the hearing
committee that Dr. James Feld acted properly

on August 4, 2000 by retracting the offer

of a residency position in the Department of

Anesthesiology for Dr. Fenje. We find this to

be so for the following reasons:

1. Dr. Fenje's Curriculum Vitae is
deliberately misleading in that it does not

include exact dates of attendance for his
training and failed to include his leaving Ayr

- 24 -


‘ “Mine Order Form (06°97)

y

ql)

granted in part and denied in part. Defendant's motion to strike is granted in part and denied in part. Defendant's
motion for summary judgment [90] is granted. Plaintiff's motion for summary judgment [97] is denied. The
preliminary injunction entered on May 29, 2002 is dissolved. The Clerk of the Court is directed to enter judgment in
favor of defendant and against plaintiff dismissing plaintiff's cause of action with prejudice except that the Count
Seven tortious interference claim is dismissed without prejudice for lack of subject matter jurisdiction.

oe United States District Court, Northern District of Mlinois
KY" Name of Assigned Judge Sitting Judge If Oth
or Magistrate Judge WILLIAM T. HART than Assigned Tudge

CASE NUMBER 01 C 9684 DATE DECEMBER 8, 2003

CASE PAUL FENJE, M.D. v, JAMES FELD, M.D., etc.

TITLE

[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
@ Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due. :
(4) im Ruling/Hearing on set for at
(5) a Status hearing [held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(o) Oo Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at .
Q) iw} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
OFRCP4(m) General Rule21 OFRCP41(ay(i) O FRCP41(a}(2).

(10) M- (Other docket entry] Plaintiff's motion to strike [95] is denied. Defendant's motion for leave to file
response [118] is granted. Plaintiff's second objections to defendant's evidence and motion to strike the same [108] is

a [For further detail see Memorandum Opinion and Order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

o | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.

ov | Mail AO 450 form. lunoa dYLSIa’s"
Copy to judge/magistrate judge. te 372 a

courroom COS HY 8~ 93g eg
” intial

oT GFW Wa acrime receives in

central Clerk’s Office



was a permanent resident residing in Illinois or some other state
at the time this lawsuit was filed. There is nothing to indicate
that Feld is not a United States citizen or permanent resident
residing in Illinois or a nearby state. The Second Amended
Complaint does not allege a specific amount of damages, but
plaintiff has indicated that he is seeking $20,000,000 in damages
for his claims. It appears that complete diversity of
citizenship and the jurisdictional amount requirement are
Satisfied as to Count Seven. Therefore, although all the federal
claims are being dismissed, a basis still could exist for
considering Count Seven.

Defendant, however, contends that jurisdiction is lacking
for another reason. Defendant contends jurisdiction over Count
Seven is exclusively in the Illinois Court of Claims because,
although he is being sued in his individual capacity, defendant's
relationship with plaintiff exists solely because of defendant's
employment with the University. If jurisdiction over this claim
is exclusively in the Illinois Court of Claims, this court lacks
jurisdiction to consider the claim. Turner v. Miller, 301 F.3d
599, 602-03 (7th Cir. 2002); Feldman v. Ho, 171 F.3d 494, 498
(7th Cir.), cert. denied, 528 U.S. 928 (1999).

. . « (T]he prohibition "against making the

State of Illinois a party to a suit cannot be

evaded by making an action nominally one against

the servants or agents of the State when the real

claim is against the State of Illinois itself and

when the State of Illinois is the party vitally

interested." (Sass v. Kramer (1978), 72 Ill. 2d

485, 491, 21 Ill. Dec. 528, 381 N.E.2d 975.)
Sovereign immunity affords no protection,

~ 47 -


were any "skeletons" in plaintiff's "closet." Plaintiff
responded there were none.

A few days after the interview, plaintiff sent a May 10,
2000 e-mail to Department of Anesthesiology Administrator Mickey
Leavy with a "letter" that he asked to be printed out and
forwarded to defendant, which it was. The letter begins, "This
is just to put on paper for your convenience about what we last
talked about." The letter states in part:

There are no skeletons of any kind in any of

my closets here. I don't smoke, and rarely

drink. I have never used any kind of illegal,

illicit or recreational drug of any kind. I have

never had any kind of confrontation with Police,

been arrested or been charged with any type of

felony, misdemeanor, or any kind of criminal

activity. Even in traffic offenses, I've had one

parking ticket and one speeding ticket. In the

speeding ticket there was no substance to it but

because it was less expensive to simply pay it

than take it to court I paid it.

In fact, plaintiff had been dismissed from the Ayr
Hospital residency and had retained an attorney who pursued legal
proceedings related to this dismissal. The Ayr Hospital legal
proceedings continued until at least July 2000. In an August 10,
2000 letter to Albrecht, plaintiff mentioned those proceedings.
The only reasonable inference is that plaintiff was well aware in
May, June, and July 2000 that a dispute existed regarding his
residency at Ayr Hospital.

Sometime prior to June 19, 2000, defendant and the
selection committee recommended to Albrecht that plaintiff be

admitted into the Program and Albrecht concurred. Sometime prior

-il1-



Included in plaintiff's application, was a document
labeled as a curriculum vitae. Neither the curriculum vitae nor
anything else in the application makes any mention of plaintiff
having been in a residency program at Ayr Hospital in Scotland in
1999. Plaintiff later submitted a document labeled as work
history (Def. Exh. L-37),‘ which refers to being at Ayr Hospital
from August 1, 1999 to October 31, 1999. He describes his work
for those three months as follows: "Postgraduate training as an
SHO/Resident in Emergency Medicine at Ayr General Hospital, Ayr,
Scotland, and studied for Canadian Part 2 exam, and continued
writing medically oriented book." This document, however, was
submitted after plaintiff had accepted the offer of the residency
at the University. It was submitted to University staff
assisting him with an application for a medical license. It
was not made part of the application that was seen by the
selection committee or Albrecht. Defendant and Albrecht were
unaware of the work history document prior to the initial
decision to terminate plaintiff's participation in the Program.

As part of the admission process for the Program,
defendant interviewed plaintiff. At the conclusion of the
interview, defendant asked plaintiff if there was anything else
defendant should know about plaintiff's background including any

trouble in any prior training programs. Defendant asked if there

‘Defendant's summary judgment exhibit L, which is
contained in defendant's Appendix of Exhibits [92], consists of a
number of items identified as Defendant Exhibit No. _. This
opinion will refer to these as L-[No.]}.

-10-


and intent often cannot be resolved on summary judgment,

Scheib v. Grant, 22 F.3d 149, 155 (7th Cir.), cert. denied, 513
U.S. 929 (1994), "summary judgment will not be defeated simply
because issues of motive or intent are involved." Morgan v.
Harris Trust & Savings Bank, 867 F.2d 1023, 1026 (7th Cir. 1989).
See also Cliff v. Board of School Commissioners of City of
Indianapolis, Ind., 42 F.3d 403, 409 (7th Cir. 1994); Beard v.
Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988);

Campbell _v, Henderson, 2002 WL 1732361 *4 (N.D. Ill. July 26,

2002), aff'd by unpublished order sub nom., Campbell v. Potter,
57 Fed. Appx. 267, 2003 WL 1120196 (7th Cir. March 11, 2003);

Budgetel Inns v. Micros Systems, 2002 WL 32123532 *22 (E.D. Wis.

Jan. 30, 2002); Trever_v. Shop-Rite, Inc., 35 F. Supp. 2d 678,

681 (E.D. Wis. 1999). There is no basis for excluding evidence
as to motive or intent. Instead, it is a legal question as to
whether the evidence undisputedly establishes any material
factual issues.
E. Objection 4

As to approximately 70% (according to defendant's count)
of the paragraphs of Def. 56.1(a) (3), plaintiff raises Objection
4 that the supporting evidence is conclusory. It is true that
"[blare allegations not supported by specific facts are
insufficient in opposing a motion for summary judgment."
Hildebrandt v. Tllinois Department of Natural Resources, 347 F.3d

1014, 1036 (7th Cir. 2003) (quoting Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989)) (emphasis added).

App. 10


program, there is no evidence that he would be the one
responsible for providing the hearing. Paragraph A of Exhibit B
provides that the request for a hearing is submitted to the
“Department Head," which would be Albrecht as the Director of the
Anesthesiology Department. Albrecht would have also been
responsible for issuing the written notice of termination. Any
unconstitutional delay in providing a hearing cannot be
attributed to Feld in his individual capacity. Therefore, no
damages can be awarded related to any delay.*

In sum, plaintiff's claim for a denial of a prompt
posttermination hearing fails because plaintiff was not entitled
to any posttermination hearing. Alternatively, such a claim
fails because he was provided with an adequate hearing and, even
if such a hearing was unconstitutionally delayed, plaintiff was
not harmed by the delay and therefore can obtain no relief for
the delay that occurred.

Counts Two, Three, and Four will be dismissed.

Sti

Plaintiff contends he was deprived of a liberty interest
in that he was stigmatized in being discharged on grounds of
dishonesty. A liberty interest may be threatened when a public

employee is discharged under circumstances where “the

MAlso, plaintiff has not shown he suffered any emotional
injury caused by the delay, though that could still leave the
possibility of nominal damages, see Alston, 231 F.3d at 386;
Fenje IJ, 2002 WL 1160158 at *3, if there were a defendant
against whom such damages could be awarded.

~ 43 -


Plaintiff's particular situation is unusual. Ordinarily,
a public employee who has a property right in his or her
employment is already working in the position at the time of
discharge. Here, however, plaintiff had not yet started in the
position and had not yet obtained a visa to enter and work in the
United States. He had not yet arrived in the city where he was
to work. Additionally, he had not yet obtained a medical license
necessary to fully perform his duties. These facts cut both
ways. On the one hand, plaintiff had less of an interest than an
existing employee who suddenly becomes jobless, losing both
income and benefits. Plaintiff still had an interest in
resolving his situation with the University so that he would know
if he must seek other residencies or employment instead, but that
would not be quite as strong an interest as some one who was
actually employed and being paid and then lost his or her
position. On the other hand, the University's interest is also
less than the usual situation since it did not have as urgent a
need to dismiss plaintiff in that he was not yet performing any
duties nor would he be immediately available to perform any
duties. Moreover, while the University has a substantial
interest in precluding a possibly unqualified resident from
providing patient services, particularly in the high-risk medical
field of anesthesiology, cf. Ezekwo v. New York City Health &
Hospitals Corp., 940 F.2d 775, 785 (2d Cir.), cert. denied, 502
U.S. 1013 (1991), here that interest did not bring any urgency to

the matter because plaintiff was not yet available, or even

-31-


however, when it is alleged that the State's
agent acted in violation of statutory or
constitutional law or in excess of his authority,
and in those instances an action may be brought
in circuit court.

. . . [W]hen "there are (1) no allegations
that an agent or employee of the State acted
beyond the scope of his authority through
wrongful acts; (2) the duty alleged to have been
breached was not owed to the public generally
independent of the fact of State employment; and
(3) where the complained-of actions involve
matters ordinarily within that employee's normal
and official functions of the State, then the
cause of action is only nominally against the
employee." ([Robb v. Sutton, (1986)} 147 I11l.
App. 3d [710,]) 716, 101 Ill. Dec. 85, 498 N.EB.2d
267.) In those circumstances, the action is one
against the State and must, therefore, be brought
in the Court of Claims.

Healy v. Vaupel, 133 Ill. 2d 295, 549 N.E.2d 1240, 1247 (1990).

Here, it is alleged in the tortious interference count
that "Defendant Feld's actions were based on ill will, an
illegitimate animus, 'personal reasons,' retribution or spite,
and/or were an effort to unlawfully punish the Plaintiff, they
were unjustified, illegal and were intended to harm and damage
the Plaintiff without right or justifiable cause." 2d Am. Compl.
q 44.

Claims of tortious interference with contract made
against a state employee generally will fall within the
jurisdiction of the Illinois Court of Claims. Se +e

Feldman, 171 F.3d at 498; Welch v. Illinois Supreme Court, 322

Ill. App. 3d 345, 751 N.B.2d 1187, 1194 (3d Dist. 2001);
Wozniak v. Conry, 288 Ill. App. 3d 129, 679 N.E.2d 1255, 1257-59
(4th Dist.}, appeal denied, 174 Ill. 2d 597, 686 N.E.2d 1174

- 48 -


applicable to a particular situation are highly fact-specific and
therefore depend on the particular situation. Sonnleitner v.
York, 304 F.3d 704, 713 (7th Cir. 2002). In determining the
process that is due, the three~part Mathews balancing test is
applied for both pretermination and posttermination process.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976); Sonnleitner,

304 F.3d at 712-13. The three, factors that are balanced are:
"First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;
and finally, the Government's interest." Id. at 712 (quoting
Gilbert v. Homar, 520 U.S. 924, 932 (1997) (quoting Mathews, 424
U.S. at 335)). Even if it is determined that pretermination
process is due, the procedures to be provided may be informal and
need not be elaborate. As long as adequate posttermination
procedures are available, the pretermination procedures require
less. Sonnleitner, 304 F.3d at 711; Head v, Chicago School
Reform Bd. of Trustees, 225 F.3d 794, 803-04 (7th Cir. 2000);
Alston v, King, 157 F.3d 1113, 1117 (7th Cir. 1998). Ordinarily,
"at a minimum: (1) oral or written notice of the charges; (2) an
explanation of the employer's evidence; and (3) an opportunity
for the employee to tell his or her side of the story" is
required, as well as an impartial decisionmaker. Head, 225 F.3d

at 803-04.

~ 30-


potential as witnesses, defendant was not obliged to supplement
his interrogatory answers to identify them as witnesses and
therefore there was no violation of Rule 26(e) that would support

barring use of these two witnesses. Everst v. Credit Protection

Association, L.P., 2003 WL 22048719 *1 n.1 (N.D. Ill. Aug. 25,
2003). In any event, plaintiff was not harmed in any way by the
failure to disclose these potential witnesses. The affidavits of
Schwartz and Bailie will be considered.

Salazar tape recorded the March 2003 hearing and his
affidavit establishes that these tapes were provided to the
Office of the University Counsel. Mordan is an employee of the
University's Bureau of Office Services. She received the tapes
from the University Counsel and verifies that the transcripts
accurately reflect the content of the tapes. Defendant contends
these two did not have to be identified in response to
Interrogatory No. 2 because they only authenticate an exhibit,
they do not provide testimony as to facts themselves. Even if
they should have been identified in a supplemental response to
this interrogatory, there is no contention by plaintiff that the
transcript of the hearing is inaccurate and plaintiff does not
point to what could have been gained had these witnesses been
identified. Feld and Albrecht also state in their affidavits
that the transcript is accurate. Since plaintiff has not been
prejudiced, the affidavits of Salazar and Mordan will be

considered.

App. 15


the same [108]? is a more detailed statement of plaintiff's
previously filed motion to strike defendant's Local Rule
56.1(a) (3) statement of material facts [95]. The earlier motion
will be denied as moot. Plaintiff's Local Rule 56.1(b) (3) (A)
response to defendant's Local Rule 56.1(a) (3) statement of
material facts [110] appears to be identical to Document [108]
except that Document [110] omits the language requesting that
items be struck. Document [110] first sets forth 20 types of
objections with supporting case law, then responds paragraph-by-
paragraph to defendant's statement of facts while referencing the
previously recited objections. This is the set of objections
that are considered in the Appendix and the objection numbers
referenced therein are those contained in Document 110.3 While
referencing the objections is permissible to avoid repeating the
same legal argument over and over, as to the objections raised to
a specific paragraph, the specific basis for the objection still

must be made sufficiently clear. Defendant is granted leave to

The bracketed numbers refer to the docket entry number
of the referenced document.

3Wwithout the baseless and obstructive objections raised
by plaintiff, and with sufficient clarity as to the particular
objection raised regarding specific paragraphs of the Local Rule
56.1 statement, this is the type of format preferred by this
bench. This bench does not favor motions to strike Rule 56.1
statements or summary judgment exhibits. See Sisto v. Ameritech

Sickness & Accident Disability Benefit Plan, 2003 WL 22472022 *2
(N.D. Ill. Oct. 31, 2003); Sphere Drake Ins. Ltd. v. All American

Life Insurance Co., F. Supp. 2d, 2003 WL 22232840 *3
(N.D. Ill. Sept. 22, 2003); Qgborn v. United Food & Commercial
Workers, Local No. 881, 2000 WL 1409855 *2-3 & nn.2-4 (N.D. Ill.
Sept. 25, 2000), aff'd, 305 F.3d 763 (7th Cir. 2002).



2002 or 2003. He also testified at his deposition that he did
not know if he informed any other residency program about his
experience at the University. Additionally, he testified that he
did not know of anyone outside the University who had been told
of his experience with the University. Since the statements in
the affidavit contradict plaintiff's deposition testimony and no
explanation is provided for the changed testimony, these

statements in the affidavit will not be credited. Beckel v.

Wal-Mart Associates, Inc., 301 F.3d 621, 623 (7th Cir. 2002);
Bahnaman v. Lucent Technologies, Inc., 219 F. Supp. 2d 921, 926
(N.D. Ill. 2002). See also Cleveland v, Policy Management

Systems Corp., 526 U.S. 795, 806-07 (1999). There is no credible
evidence that anyone other than employees of the University and
those involved in this litigation are aware that plaintiff was
terminated from the Program, let alone the stated reasons for the
termination.

Plaintiff provides testimony as to his own belief that
his not having been in practice or a training program for a few
years and having been terminated from the Program will
substantially harm his chances of being admitted into another
residency program. Such testimony is not sufficient to show the
truth of his belief. Defendant does admit that he would closely
scrutinize a residency applicant who had not received medical
training for more than one and one~half years. It can be
inferred from this that other decisionmakers for residency

programs would have similar reservations. For purposes of

- 21 -


statements of any agents acting on Feld's behalf. This is
particularly true in regard to the official capacity claims since
most prior statements come from employees of the University.
C. Objection 2

Plaintiff contends that defendant should be barred from
using certain evidence that defendant declined to disclose during
discovery. In ruling on a discovery dispute, the court declined
to compel further discovery but stated, ". . . if you go to trial
and [either of] you have given an inadequate response, if you try
to offer evidence that you haven't produced that the other side
has asked for, and that side then objects to it, I won't receive
it." Jan. 23, 20037* Tr. at 6. Plaintiff contends he was denied
discovery as to other disciplinary hearings that took place,
admissions criteria for applicants, and the files of other
applicants. Plaintiff, however, does not point to
interrogatories or document requests in which he requested such
materials. Although he does not cite to it in support of this
objection, plaintiff does provide defendant's response to
interrogatories. See Pl. F.R.C.P. 56(e) & LR 56.1(b) (1) [111]
Exh. C. The only questions asked about other candidates had
specific criteria and defendant responded that no persons fell
within those categories. Id. questions 10-12. But, even

assuming defendant failed to adequately respond in the manner

‘6The copy of the transcript attached to defendant's
Response to Plaintiff's Second Objections is misdated January 23,
2002.

App. 8


statement itself certainly may include the ultimate factual
determinations to be made by the trier of fact. Those
statements, though, must be sufficiently supported by the cited
evidence or related evidence upon which it relies.

In any event, it is a factual statement, not a legal
conclusion, that a person decided to withdraw an offer. See Def.

56.1(a) (3) G29, 34. Cf, Taylor v. Canteen Corp., 69 F.3d 773,

784 (7th Cir. 1995) (factual issues as to whether contract offer

was accepted); R_& B Group, Inc. v. BCI Burke Co., 982 F. Supp.
549, 555 (N.D. Ill. 1997). The legal effect of such action
is the legal issue. It is also a factual statement when a
person states his reasons for taking a particular action. See
Def. 56.1(a) (3) G1 32-34. Cf, Eastridge v. Rhode Island College,
996 F. Supp. 161, 167 (D.R.I. 1998).
H. Objection 9

Plaintiff objects to certain statements in affidavits as
being self-serving without adequate factual support. Seventh
Circuit case law supports "the proposition that self~serving,
uncorroborated, and conclusory statements in testimony are
insufficient to defeat a motion for summary judgment." Payne,
337 F.3d at 773 (collecting cases). “It is not the self-serving
nature of the affidavits, however, that sealed their fate in
these cases. After all, most affidavits submitted for these
purposes are self-serving." Id. Instead, the affidavits failed
to defeat summary judgment because they were not based on

personal knowledge, contained speculative conclusions, or were

App. 13


public employee.** There is no constitutional right to have
counsel present at such hearings. See Panozzo v. Rhoads,

905 F.2d 135, 139-40 (7th Cir. 1990); Kramarski v. Village of
Orland Park, 2002 WL 1827637 *13 (N.D. Ill. Aug. 9, 2002). There

is no constitutional right to confront witnesses or present live

witnesses at such hearings. See Staples vy. City of Milwaukee,
142 F.3d 383, 387 (7th Cir. 1998); Ses Eva: on,

1995 WL 625431 *3 (N.D. Ill. Oct. 23, 1995), aff'd by unpublished
order, 97 F.3d 1454 (7th Cir. 1996), cert. denied, 519 U.S. 1117
(1997); Hubbard v, Village of Streamwood, 1995 WL 151830 *3 (N.D.
Ill. April 3, 1995); Moescowitz v. Brown, 850 F. Supp. 1185, 1195

(S.D.N.¥. 1994). Due process does not require that witness
statements be provided prior to the hearing or that the
opportunity for discovery be provided prior to the hearing. See
Swank v. Smart, 898 F.2d 1247, 1254-55 (7th Cir.), cert. denied,
498 U.S. 853 (1990); Moscowitz, 850 F. Supp. at 1195; Peterson v.

Unified School District No. 418, 724 F. Supp. 829, 833-34 (D.
Kan. 1989). It is sufficient that plaintiff was aware of all the

evidence that was provided to the hearing panel and had the
opportunity to rebut it. See Swank, 898 F.2d at 1254-55. There
is also no constitutional requirement that the hearing comport

with rules of evidence. Amundsen v. Chicago Park District,

4Although a number of the cases cited below involved
pretermination hearings, they were situations in which the public
employee was provided the fullest hearing she or he would receive
prior to termination. They are not situations like the present
one where the employee was provided with lesser procedures prior
to termination and fuller procedures after termination.

- 38 -


218 F.3d 712, 717 (7th Cir. 2000). Lastly, termination
procedures do not violate due process because the decisionmaker
is not empowered to award monetary damages. See Schacht v.
Wisconsin Department of Corrections, 175 F.3d 497, 503 (7th Cir.
1999).

Plaintiff's other contention is that the delay in
providing plaintiff written notice and eventually a hearing is a
violation of due process. It has previously been held that the
pretermination process provided to plaintiff was all that) the
Constitution required, Therefore, any delay in providing a
further hearing would not violate due process. If, nowa¥jer,
plaintiff was constitutionally entitled to a prrecinlien
proceeding of some type as well, it would be possible that the
two and one~half year delay in providing a postterminatiion

proceeding would itself be a due process violation. See De

a
Vito v. Chicago Park District, 972 F.2d 851, 855-58 (Teh Cir.

1992). 5

yy
4}

In determining whether such a delay would have’ [been a

violation of due process, the factors set forth in FDIC v.

Mallen, 486 U.S. 230, 242 (1988), would be applied. De Vito, 972
7
1

F.2d at 855. ‘ i

In determining how long a delay is justified in
affording a post-suspension hearing and decision,
it is important to examine the importance of the
private interest and the harm to the interest;
occasioned by the delay; the justification
offered by the government for the delay and its
relation to the underlying governmental interest;
and the likelihood that the interim decision may
have been erroneous.

- 39 -


provided to defendant. See Def. Exh. L-3, L-16. Leavy states in
her affidavit that these are accurate copies of e-mails she
received from plaintiff. Leavy Aff. 11 7, 9. The printed
e-mails show a source e-mail address that matches that shown on
plaintiff's letterhead that is included in other authenticated
documents. The contend of the e-mails is consistent with other
evidence. Defendant Exhibits L-3 and L-16 have been adequately
authenticated. Leavy also adequately authenticates an e-mail
communication she received and replied to as between herself and
another University employee, Denise Hicks-Llorens. See Def. Exh.
L-33; Leavy Aff. @ 33.

Defendant Exhibit L-43, plaintiff's license application
to the Illinois Department of Professional Regulation ("IDPR") is
adequately authenticated by the certification of an IDPR keeper
of records. Fed. R. Evid. 902(1).

The letter from Patricia Leiser to plaintiff (Def. Exh.
L-35), the document entitled "Work History--Dr. Paul Fenje, Jr."
(Def. Exh. L-37), plaintiff's notice of hearing before a Scottish
employment tribunal (Def. Exh. L-47), and plaintiff's Electronic
Residency Application Service application (Def. Exh. L-59) are
adequately authenticated in that they were produced by plaintiff
in discovery. Exhibit L-37 is further authenticated by the
affidavit of Marla Dunning (f 2).

The decision following plaintiff's hearing (Def. Exh.
L-54) and decision on appeal (Def. Exh. L-81) apparently are not

objected to as lacking an adequate foundation. In any event,

App. 4


establish injury unless the facts underlying the
case are so inherently degrading that it would be
reasonable to infer that a person would suffer
emotional distress from the defendant’s action.
Alston v. King, 231 F.3d 383, 388 (7th Cir.
2000); United States v. Balistrieri, 981 F.2d
916, 931-32 (7th Cir. 1992).

Denius v. Dunlap, 330 F.3d 919, 929-30 (7th Cir. 2003).
Plaintiff's statement in his affidavit is insufficient to
establish that he suffered any emotional injury caused by delay.

B. Deprivation of Property Interest Without Due Process

Plaintiff contends he had a property interest in his
residency position that entitled him to a pretermination hearing
or, alternatively, a timely and adequate posttermination hearing.

. Existence of P: r nteres

In order to be entitled to the due process protections
raised in Counts One through Four, plaintiff must have had a
protectable property interest in the residency position. See
Omosegbon v. Wells, 335 F.3d 668, 674-75 (7th Cir. 2003). Here,
the Agreement had a provision that, absent agreement of the
parties, plaintiff's residency could only be terminated for
cause. Thus, as long as an enforceable contract existed,
plaintiff would have a property interest in his residency. See

id.; Lalvani v. Cook County, Till., 269 F.3d 785, 791 (7th Cir.

2001); Fenje I, 2002 WL 959837 at *6. Defendant contends the
Agreement does not create a property interest because the

contract was contingent.

~27-


344 F.3d 702, 707 (7th Cir. 2003). Out-of-court statements
presented for other purposes are not hearsay. Statements
intended to show, for example, the speaker's state of mind,

EEOC v. University of Chicago Hospitals, 276 F.3d 326, 333 (7th

Cir. 2002); Aetna Life Insurance Co. v. Wise, 184 F.3d 660, 665~

66 (7th Cir. 1999), offers and negotiations between parties,

Hydrite Chemical Co. v. Calumet Lubricants Co., 47 F.3d 887, 892
(7th Cir. 1995), and notices or knowledge of a party, Cook v.

Navistar International Transportation Corp., 940 F.2d 207, 213

(7th Cir. 1991); Kemper/Pri ndu: i ve
Watson Americas, Inc., 1998 WL 704049 *4 (N.D. Ill. Sept. 30,

1998), are not hearsay. It is not hearsay for defendant or other
University officials to state that they made a decision based on
information reported to them. While the statements reporting
such information generally will be hearsay not admissible to show
the truth of the reported information, the statements are not
inadmissible hearsay for purposes of showing the information
relied upon or considered in making a decision. Schuster v.

Shepard Chevrolet, Inc., 2002 WL 507130 *5 (N.D. Ill. April 3,

2002); Teal_v. Chicago Sun-Times, Inc., 2001 WL 1609384 *1i n.1
(N.D. Ill. Dec. 14, 2001); Newton v. Chicago School Reform Board

of Trustees, 2000 WL 1367612 *6 (N.D. Ill. Sept. 13, 2000).
Additionally, plaintiff's own prior statements are admissible
nonhearsay as an admission of a party-opponent and may be used as
such by defendant. Fed. R. Evid. 801(d)(2). Similarly, prior

statements by Feld may be so used by plaintiff, as well as prior

App. 7


conclusory. Id. at 772-73. Characterizing the evidentiary
support as self-serving adds nothing to the objection. The
evidentiary support will only be found to be deficient to the
extent it is not based on personal knowledge or lacks support for
the underlying facts, see App. § G supra, or because it is
improperly conclusory, see App. § E supra.
I. Objection 10

Plaintiff objects that some of the affidavits submitted
by defendant are from witnesses who were not disclosed by
defendant in response to discovery requests. Plaintiff objects
to the affidavits of Dunning, Jose Salazar, Dorothy Mordan, David
Schwartz, and Michael Bailie.

Federal Rule of Civil Procedure Rule 37(c) (1) provides
in part:

A party that without substantial

justification fails to disclose information

required by Rule 26(a) or 26(e)(1), or to amend a

prior response to discovery as required by Rule

26{e) (2), is not, unless such failure is

harmless, permitted to use as evidence at a

trial, at a hearing, or on a motion any witness

or information not so disclosed. In addition to

or in lieu of this sanction, the court, on motion

and after affording an opportunity to be heard,

may impose other appropriate sanctions.

Schwartz presided at plaintiff's March 2003 hearing and
Bailie decided the appeal of the hearing panel's decision.
Neither were known witnesses at the time defendant provided his

amended interrogatory answers in January 2003. Since plaintiff

was well aware of Schwartz's and Bailie's roles and their

App. 14


nonmovant and all factual disputes resolved in favor of the

nonmovant. Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991,

994-95 (7th Cir. 2003); Palmer v. Marion County, 327 F.3d 588,
592 (7th Cir. 2003); Abrams v. Walker, 307 F.3d 650, 653-54 (7th
Cir. 2002). The burden of establishing a lack of any genuine
issue of material fact rests on the movant. Outlaw v. Newkirk,
259 F.3d 833, 837 (7th Cir. 2001); Wollin v, Gondert, 192 F.3d
616, 621-22 (7th Cir, 1999). The nonmovant, however, must make a
showing sufficient to establish any essential element for which
he will bear the burden of proof at trial. Celotex Corp. v.
atrett, 477 U.S. 317, 322 (1986); Binz v. Brandt Construction
Co., 301 F.3d 529, 532 (7th Cir. 2002); Traylor v. B ,
295 F.3d 783, 790 (7th Cir. 2002). The movant need not provide
affidavits or deposition testimony showing the nonexistence of
such essential elements. Celotex, 477 U.S. at 324. However, the
movant must place his arguments within a factual context and a
court is not obliged to address unfocused arguments. Anderson v.
Cornejo, 225 F. Supp. 2d 834, 845 (N.D. Ill. 2002); Qak Ridge
Care Center, Inc. v. Racine County, Wis., 896 F. Supp. 867, 876
(E.D. Wis. 1995); In re ContiCommodity Services, Inc. Securities
Litigation, 733 F. Supp. 1555, 1571 (N.D. Ill. 1990), rev'd in
part on other grounds sub nom., Brown v. United States, 976 F.2d

1104 (7th Cir. 1992), aff'd in part sub nom., ContiCommodity
Services, Inc. v. Ragan, 63 F.3d 438 (5th Cir. 1995), cert.

denied, 517 U.S. 1104 (1996). Additionally, it is not sufficient


similarly malevolent animus. Discovery House, Inc. v.
Consolidated City of Indianapolis, 319 F.3d 277, 283 (7th Cir.),
cert. denied, 124 S. Ct. 301 (2003); Nevel_ v. Village of
Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002); Hilton v. City of
Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000), cert. denied, 531
U.S. 1080 (2001); Fenje I, 2002 WL 959837 at *7. Moreover,
"[iJ11 will must be the sole cause of the complained-of action."

Nevel, 297 F.3d at 681 (quoting Albiero v. City of Kankakee,

246 F.3d 927, 932 (7th Cir. 2001)).

Defendant contends this claim fails because there is no
evidence of vindictiveness or another similar animus. Plaintiff
only points to evidence that Feld terminated the residency
because of plaintiff's lack of candor and that defendant intended
to do so. That is not evidence of vindictiveness or ill will of
any sort. Count Six will be dismissed.

E. Tortious Interference

Count Seven is a state law claim that defendant, in his
individual capacity, tortiously interfered with plaintiff's
contract with the University. Although plaintiff alleges in the
complaint that Count Seven is before the court based on
supplemental jurisdiction, see 28 U.S.C. § 1367(a), it appears
that diversity jurisdiction would ordinarily support that count.
See 28 U.S.C. § 1332(a) (2). Plaintiff is alleged to be a citizen
of Canada, he states in his affidavit that he currently resides
in Canada, and it has been represented throughout this litigation

that he resides in Canada. There is no indication that plaintiff

- 46 -


individual's good name, reputation, honor or integrity are at
stake by such charges as immorality, dishonesty, alcoholism,

disloyalty, Communism or subversive acts." Townsend vy. Vallas,

256 F.3d 661, 669 (7th Cir. 2001) (quoting Munson vy. Friske,
754 F.2d 683, 693 (7th Cir. 1985)). In order to make a claim of

unconstitutional stigmatization, “the employee must show that
(1) he was stigmatized by the defendant's conduct, (2) the
stigmatizing information was publicly disclosed and (3) he
suffered a tangible loss of other employment opportunities as a
result of public disclosure." Townsend, 256 F.3d at 669-70.
"The first element requires the employee to show that a public
official made defamatory statements about him." t rg v.
Board of Education, Hardin County Community Unit School District
No. 1, 143 F.3d 351, 356 (7th Cir. 1998), cert. denied, 525 U.S.
1069 (1999). The statement must be shown to be factual in
nature, to be false, to have come from the mouth of a public
official. Id. To satisfy the third element, it must be shown
that some employment opportunity was actually denied because of
the disparaging statement. Townsend, 256 F.3d at 670.

Plaintiff cannot satisfy any of these elements. It is
undisputed that plaintiff worked a short period of time at Ayr
Hospital and that he did not disclose that information during the
application process. Thus, he has not shown that the grounds for
the termination of his residency were false. There also is no
evidence that Feld or any other University employee publicly

disclosed that plaintiff was discharged because of dishonesty. A

- 44 -


depose her. Plaintiff provides no specific argument to the
contrary.** Dunning's affidavits will be considered.
J. Objection 11

Plaintiff objects to statements in affidavits based on
what a person "heard," “felt," or "thinks." The quoted words do
not actually appear in the affidavit statements to which
plaintiff objects. This objection is just a variation on
plaintiff's state of mind and hearsay objections. Such
objections are generally without merit. See App. § B supra. A
witness may testify as to his or her own state of mind. As to
other persons, the witness generally may only testify as to
another person's statements or conduct (to the extent not
inadmissible hearsay), but not as to the other person's actual
state of mind.

ctio'

Issues of hearsay, App. § B supra; personal knowledge and
conclusory statements, App. § G supra; and foundation and
authentication, App. § A supra, have already been addressed.

L. Objections 13 & 20
Plaintiff objects to the use of the transcript created

from the audio tape of the March 2003 hearing. He objects that

Objection 10 itself does not mention specific witnesses
and only provides a citation to defendant's amended interrogatory
responses as a whole. No other background information is
provided. That plaintiff is objecting to Dunning can only be
determined because 10 is one of a string of objections listed in
Pl. 56.1(b) (3) (A) in response to each paragraph for which
defendant cites to Dunning's affidavit.

App. 17


b. The written notification of suspension and/or
termination shall include an explanation from the
Department Head (or such individual acting in a
similar capacity depending on the particular
program the Resident is enrolled in) of the
reason(s) for such suspension or termination.
The written notification shall also advise the
Resident of his or her right to request an
informal hearing pursuant to this Exhibit.
c. [Composition of hearing Committee.]
d. The Committee shall convene the hearing
within ten (10) days of the Resident's written
request and shall notify the resident in writing
of the date, time, and place for the hearing as
soon as reasonably possible, but no less than 72
hours in advance of the hearing.
e. The Resident and the Department Head or his
or her designee or Program Director shall be
present at the hearing and shall each present
such information or materials (oral or written)
as they wish to support their case. No other
representative shall be present during the
hearing. Each shall be permitted to review all
materials submitted to the Committee during the
hearing.
f. (Committee decides by majority.]
g. {Requirement of written decision stating
reason. ]
h. A Resident may appeal the Committee's
decision to the Associate Dean of Graduate
Medical Education within ten (10) days of receipt
of the committee's decision. The Associate Dean
shall render his or her decision in writing
within a reasonable time, which shall not exceed
thirty (30) days. In the event the Associate
Dean intends to reverse the Committee's decision,
he or she first must appoint another Committee,
in consultation with the Department Head, to
discuss the matter. The Resident may appeal the
Associate Dean's decision to the Dean of the
College of Medicine within ten (10) days. The
Dean shall render his or her decision within ten
(10) days and such decision shall be final.

we kk ok
1. The procedural rights provided under this
Exhibit do not relate to departmental
determinations relating to certification and/or
evaluation of the Resident's academic or clinical
competence. Such certification shall be handled
according to the standards of the various
specialty boards.

-14-


objections in its reply or even from providing additional
foundation materials with the reply. See Elahanmi v. Franklin
College of Indiana, Inc., 2000 WL 1707934 *1 (S.D. Ind. Oct. 2,
2000). The moving party also need not explicitly set forth in
its Local Rule 56.1(a) (3) statement the basis (e.g., a hearsay
exception) for each piece of evidence being admissible nor need
it anticipate and respond in advance to every possible objection
that might be raised to the admissibility of a piece of evidence.
No rule contains such a requirement and imposing one would be
particularly tedious and greatly expand the length of Local Rule
56.1 statements. Plaintiff misreads Spencer v. Office of

Illinois Attorney General, 2002 WL 31898190 *1 (N.D. Ill.

Dec. 31, 2002), in contending such a rule exists. That case
contains the following: "Furthermore, Exhibit G relies on
hearsay, yet Spencer fails to articulate a hearsay exception as
mandated by the Rules. See FRE 801-805." That case is saying
that it is mandatory to meet one of the exceptions in order to
admit hearsay; it is not saying that it is mandatory to
articulate the basis for admission in a Local Rule 56.1 statement
prior to any objection being raised.

Objections 5, 7, 12, and 16 do not raise any particular
hearsay issue. There is no dispute that hearsay that does not
meet one of the permissible exceptions may not be considered. It
is noted, though, that hearsay is defined as out-of-court

statements “offered in evidence to prove the truth of the matter

asserted." Fed. R. Evid. 801(c); United States v. Rettenberger,

App. 6


See also Scott, 346 F.3d at 759 n.6. This rule applies to the
nonmoving party as to factual issues on which he will bear the
burden of proof. v. Nati & Chemica -
Oil, 178 F.3d 501, 504 (7th Cir. 1999) (quoting Chemsource
Inc. v. Hub.Group, Inc., 106 F.3d 1358, 21361 (7th Cir. 1997)).
It generally does not apply to the moving party's initial burden.
As previously stated, the moving party need not provide
affidavits or deposition testimony showing the nonexistence of
essential elements of the nonmoving party's claim. Celotex, 477
U.S. at 324. Thus, conclusory evidence as to those issues is
more than sufficient. It is only as to factual issues on which
defendant bears the burden or otherwise must make an affirmative
showing that he must present non~conclusory evidence.”
Additionally, as to certain simple and straightforward
facts, conclusory testimony or affidavit statements will suffice.
For example, to show that he received a letter, it is sufficient
for the affiant to simply state that he or she received an
identified document. See, e.g., Feld Aff. 4 15; Albrecht Aff.
@ 9. That is not a statement that must be ignored because
conclusory. Whether the letter is authentic and was actually

written or sent by the purported author may require additional

MTMTo the extent the movant is seeking to overcome
evidence presented by the nonmovant, the movant would need to
present non-conclusory evidence. In most such situations,
however, that the nonmovant has evidence supporting its position
would mean that a genuine factual dispute exists. The movant's
evidence would have to be so overwhelming and conclusive as
compared to the nonmovant's evidence that no genuine factual
dispute exists.

App. 11


fault for any delay in submitting his medical license
application.

As of late July and early August 2000, Feld was not
personally aware that the Agreement had been signed by plaintiff
and the University officials. In late July 2000, defendant
received an anonymous telephone call suggesting plaintiff had had
difficulties during residency training at Ayr Hospital in
Scotland. The anonymous caller aiso suggested contacting
attending physician Fiona Gibson and the Medical Director at Ayr
Hospital. Defendant thereafter contacted plaintiff, who provided
his views on the matter and provided defendant with the names of
people that could be contacted at Ayr Hospital. Plaintiff also
faxed defendant a letter dated August 1, 2000 in which plaintiff
states his position. In the letter, plaintiff mentions a number
of his references that should be contacted and also states:

In retrospect, I had never considered this

incident any kind of a closet skeleton and had

thought of it as a personality clash of some kind

with Dr. Fiona Gibson but why completely eluded

me. Dr. Gibson had concluded I had some kind of

Psychiatric obsessive trait because I attended

the ER department while not working simply

because I wanted to learn more. Dr. Gibson also

concluded I had been having Epileptic Petit Mal

seizures because as I speak, I sometimes pause

and ponder the question and my response, and

rarely blurt out answers without considering the

response. ee

I very much hope you do talk to my lawyer in

Ayr, Mr. Brian Murphy, ....

Def. Exh. L-21. Defendant only contacted Gibson and the Medical

Director who told him plaintiff had been a resident, his

~ 16 -


a
2

4 eh

official capacity; that is, the official capacity claims are not
for damages, which would be barred by the Eleventh Amendment.
See Fenje v. Board of Governors of the University of Illinois at
Chicago Medical School, 2002 WL 959837 *3 (N.D. Ill. May 9, 2002)
("Fenje I"). Count One is a claim pursuant to 42 U.S.C. § 1983
that plaintiff was denied constitutional due process in that he
was denied a pretermination hearing. Count Two is a § 1983 claim
that plaintiff was denied due process in that he was denied an
adequate posttermination hearing. Count Three is a § 1983 claim
that plaintiff was denied due process in that his posttermination
hearing was delayed. Count Four is a § 1983 claim that the
Resident Agreement plaintiff entered into with the University is
facially unconstitutional in violation of due process in that it
did not expressly provide for a time period in which to hold a
termination hearing. Count Five is a § 1983 due process claim
that plaintiff's termination improperly stigmatized him. Count
Six is a § 1983 equal protection "class of one" claim.’ Count
Seven is a state law claim that defendant Feld tortiously
interfered with plaintiff's contract with the University.

On a motion for summary judgment, the entire record is

considered with all reasonable inferences drawn in favor of the

‘Although the class of one claim contained in the
original complaint was dismissed, see Fenjie I, 2002 WL 959837
at *6-7, the Second Amended Complaint corrects the deficiency
that was the basis for that dismissal.



contract, statute, or regulation, by itself, constitute a
violation of due process. Horowitz, 435 U.S. at 92 n.8;

Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002); Fuller v.

Dillon, 236 F.3d 876, 880 (7th Cir.), cert. denied, 532 U.S. 1072
(2001); Campbell v. City of Champaign, 940 F.2d 1111, 1113 (7th
Cir. 1991); W v. Board ustees of Bal iversi

2002 WL 31242240 *5 (S.D. Ind. July 18, 2002); Kelm v. Arlington
Heights Park District, 1999 WL 753930 *6 (N.D. Ill. Sept. 15,
1999).

Even if this were the usual public employment situation
where plaintiff would have been entitled to a hearing on his
termination, the hearing he was provided complied with those due
process rules. Plaintiff was provided notice of the possible
grounds for his termination. The University was required to
provide copies of the documentary evidence it was presenting and
plaintiff was aware of the only live witness other than himself,
Feld. Plaintiff was permitted to provide both a written and oral
opening statement. He was allowed to present his own documentary
evidence and his own testimony, and, although he did not avail
himself of the opportunity, he would have been permitted to
question Feld. Plaintiff was also permitted to present argument
on his behalf. As previously set forth, the hearing panel was
impartial. Additionally, the panel set forth in writing the
reasons for its decision.

The purported hearing deficiencies raised by plaintiff

are not constitutionally required in a termination hearing for a

-37-


Hospital after only 12 days of a six month
contract.

2. When asked about past experiences at his
interview with Dr. Feld, Dr. Fenje did not take
this opportunity to correct his omission from his
Curriculum Vitae and explain the circumstances of
his leaving Ayr Hospital.

The hearing committee therefore finds that
Dr. Paul Fenje was justly denied a position as a
Resident in the Department of Anesthesiology at
the University of Illinois at Chicago and,
further, that he should not be given residency
status.

Plaintiff points to no evidence from which it could
reasonably be inferred that this decision would have been
different had the hearing been held closer to the time his
residency was terminated.

Plaintiff appealed the panel's decision to Michael
Bailie, Vice Dean of the College of Medicine. Prior to reaching
a decision, Bailie had oral conversations with plaintiff and
defendant. Plaintiff was provided the opportunity to submit an
additional written statement but did not. Bailie upheld the
decision to terminate plaintiff's participation in the Program.
In his June 13, 2003 decision, he explained:

The basis for your rejection as a resident

at the University of Illinois College of Medicine

Department of Anesthesiology was that you failed

to provide disclosure of your tenure at Ayr

Hospital in your material submitted to the

Department. In addition, when given the

opportunity to disclose this information to Dr.

Feld during and after your interview, you failed

to do so.

In your statement to me, you indicated that
you thought the interview had taken place before

you went to Ayr Hospital and that explained why
you did not have it on your resume. However, the

- 25 -


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PAUL FENJE, M.D.,
Plaintiff,
Vv. No. 01 C 9684
JAMES FELD, M.D., in his

official capacity and in his
individual capacity,

Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiff Paul Fenje, M.D. claims that he was improperly
terminated from the anesthesiology residency program ("the
Program") at the University of Illinois at Chicago Medical School
(the "University"). Named as the defendant in this case is James
Feld, M.D., individually and in his official capacity as a
University employee involved in the Program. Pending are both
parties' motions for summary judgment and related motions to
strike.

Plaintiff's Second Amended Complaint contains seven
counts as follows. Except for Count Seven which is brought
against defendant Feld in his individual capacity only, each
count is brought against Feld in his individual and official

capacity, with only injunctive relief being sought in his j22


(1997); Manageme Associati' of Illinois, Inc. v. a fe}

Regents of Northern Illinois University, 248 Ill. App. 3d 599,
618 N.E.2d 694, 704-06 (1st Dist. 1993); Sarpolis v. Board of

Trustees of University of Tll., 52 Ill. Ct. Cl. 390 (2000).

But compare Boloun v, Williams, 2002 WL 31426647 *13 (N.D. Ill.

Oct. 25, 2002). Plaintiff's allegations do not take the tortious
interference claim outside the general rule. This court lacks
jurisdiction to consider Count Seven. Count Seven will be
dismissed without prejudice for lack of subject matter
jurisdiction.
III. CONCLUSION

For the reasons set forth above, defendant is entitled to
summary judgment dismissing plaintiff's cause of action with
prejudice except that the state law tortious interference claim
will be dismissed without prejudice for lack of subject matter
jurisdiction. Since undisputed facts support that defendant is
entitled to summary judgment, it is unnecessary to separately
address plaintiff's summary judgment motion which will be
denied.** Since plaintiff's cause of action is now being
dismissed, the preliminary injunction that was previously granted
will be dissolved.

IT IS THEREFORE ORDERED that plaintiff's motion to strike

defendant's Local Rule 56.1(a) (3) statement of material facts

Where Pl. 56.1(b) (3) (A) or plaintiff's brief in
opposition to summary judgment cited to plaintiff's Local Rule
56.1(a) (3) statement filed with his own summary judgment motion,
plaintiff's summary judgment submission was considered.

- 49 ~


well as the nature and timing of such proceedings. Sonnleitner,

304 F.3d at 713. Under the terms of Exhibit B of the Agreement,

the resident has 14 days to request a hearing and the hearing is

to be convened within 10 days, though no express deadline exists

for the conclusion of the hearing and issuance of a decision. As
to plaintiff, the posttermination hearing was not held until more
than two and one-half years after his dismissal. A delay of that
long is a factor favoring fuller pretermination procedures. See
id. at 713-14.

It is unnecessary to determine precisely how the above
factors should be balanced. They ordinarily would call for some
pretermination procedures, but not the fullest possible hearing.
There is, however, another overriding consideration that has not
yet been addressed and which establishes that plaintiff was
entitled to only minimal procedures. In academic situations, the
Supreme Court has held that dismissal on academic grounds, unlike
dismissal on disciplinary grounds, requires only minimal due
process protections, if any. Boar £ tors iversit £
Mo. _v. Horowitz, 435 U.S. 78, 85-91 (1978). No hearing, either
pretermination or posttermination, is required. Id. at 89-90.
"Academic evaluations of a student, in contrast to disciplinary
determinations, bear little resemblance to the judicial and
administrative fact-finding proceedings to which we have
traditionally attached a full-hearing requirement. . .. Like
the decision of an individual professor as to the proper grade

for a student in his course, the determination whether to dismiss

-~ 33 -


with due process requirements, plaintiff still has not shown
entitlement to relief. Plaintiff was provided with a hearing
which upheld his dismissal and there is no evidence that the
result would have been any different had a more timely hearing
been provided. There is also no evidence that plaintiff suffered
any emotional injury as a result of the delay. Therefore,
plaintiff would not be entitled to official capacity injunctive
relief reinstating plaintiff. See Patterson v. Portch, 853 F.2d
1399, 1407-08 (7th Cir. 1988); Fenje IZ, 2002 WL 1160158 at *3.
Neither would plaintiff be entitled to any injunctive relief
prohibiting future délays in providing hearings since plaintiff
has already received his hearing and is no longer a resident at
risk of being dismissed, so he does not having standing to seek

such relief. See generally City of Los Angeles v. Lyons, 461

U.S. 95 (1983).7> Any damages relief can only be awarded as
against defendant in his individual capacity. While there is

evidence that Feld was the de facto director of the residency

Plaintiff also contends the hearing procedure set forth
in Exhibit B is facially unconstitutional in that it contains no
express provision as to when a hearing must be held. Feld was
not personally responsible for the terms contained in Exhibit B.
Any claim for deficiencies in Exhibit B would only go against
defendant in his official capacity. For the same reasons stated
in the text, plaintiff would not be entitled to reinstatement and
would lack standing for any other form of official capacity
relief. Also, it is not a constitutional violation to fail to
have an express written provision as to when a hearing must be
held. See De Vito, 972 F.2d at 857. A facial deficiency might
occur only if there was an express provision mandating that a
resident had to wait a specified and unreasonable period of time
before a hearing could take place.

- 42 ~


First, defendant points to § 10(a) of the Agreement which
permits the University to terminate the Agreement if a medical
license is not obtained within 30 days of the commencement of the
Agreement. The medical license, however, is not made a condition
precedent to the contract being in force. Instead, the Agreement
provides that it was effective June 23, 2000 and that the term of
plaintiff's employment began August 1, 2000. Failure to obtain
the license is a ground for terminating the Agreement 30 days
after the residency begins, not a condition that prevents the
Agreement from being enforceable. Such a reading is fully
consistent with § 4(b) of the Agreement which provides that
failure to have a medical license precludes the resident from
performing patient services, not that it prevents the residency
from commencing. Moreover, it is not provided that the Agreement
automatically terminates after 30 days if the license is not
obtained. At the University's option, the Agreement may be
either terminated or the University may take disciplinary action,
including suspension without pay. Furthermore, plaintiff's
residency was not terminated on the ground that he lacked a
medical license. Although the lack of a license was mentioned in
the November 1, 2002 notice, Feld's decision was based entirely
upon the failure to disclose the Ayr Hospital situation, as
were the decisions of the hearing panel and Vice Dean Bailie.
Section 10(a) of the Agreement did not prevent plaintiff from
having a protectable property interest in his residency. Compare

Hannon v. Turnage, 892 F.2d 653, 659 (7th Cir.), cert. denied,

~ 28 -


to June 19, defendant communicated to plaintiff that he was
admitted to the Program and plaintiff indicated his acceptance.
Defendant sent plaintiff a June 19, 2000 letter confirming that
Plaintiff had accepted an offer of a "4-year residency to begin
August 1, 2000." Defendant signed the letter as "Director,
Anesthesiology Residency Training Program." The letter also
indicated that the Graduate Medical School office would contact
plaintiff about completing the process.

On July 17, 2000, plaintiff received his Resident
Agreement (the "Agreement"), which he signed and returned. On
July 24, the Agreement was signed by Albrecht, who was
denominated as "Program Director," and, in early August, it was
signed by the Associate Dean of Graduate Medical Education. The
effective date, as stated on the Agreement, was June 23, 2000.
The Agreement is for a one-year residency commencing August 1,
2000. There is a provision for reappointment for further time
periods upon the recommendation of the Program Director.

The Agreement includes the following provisions:

4. Representations: The Resident represents the
following:
kok o*

b) That he/she possess a valid State of
Illinois medical license. Such license will
be obtained at the Resident's own expense.
Failure to provide proof of such license as
of the commencement date of this Agreement
shall prohibit the resident from providing
any patient care services subject to any
additional rights the University may have
pursuant to Section 10 of this Agreement.

we Kk

10. Termination: This Agreement may be

terminated as follows:

-12-


proof, but that does not preclude crediting the statement that

the identified exhibit was received. As was previously

discussed, see App. § A supra, there is adequate proof as to the

authenticity of the letters included among defendant's exhibits.
FE. Objection 6

Objection 6 is that statements in certain affidavits are
not supported by a proper foundation. The nature of this
objection is not clear. Plaintiff cites Swift Brothers v.

Swift Sons, Inc., 921 F. Supp. 267 (E.D. Pa. 1995), in support of

this contention, without any specific page citation. That case,

however, contains no holding as to foundation. It does have a

holding concerning hearsay. See id. at 277. In any event, it

will be considered whether an adequate foundation exists for

statements or documents referenced in an affidavit or testimony.
G. Objection &

Plaintiff contends it is improper to “assert legal and
ether conclusions in a statement of material facts." It is true
that legal conclusions should not be contained in a Rule 56.1
statement. See Malec v, Sanford, 191 F.R.D. 581, 583 (N.D. Ill.
2000). However, a witness may testify to conclusions he or she
infers from the underlying facts. See Fed. R. Evid. 701, 704(a)-
A summary judgment affidavit may include inferences and opinions
as long as they are based on underlying facts of which the
affiant has personal knowledge. Payne v. Pauley, 337 F.3d 767,
772 (7th Cir. 2003); Drake v. Minnesota Mining & Manufacturing

Co., 134 F.3d 878, 887 (7th Cir. 1998). And the Rule 56.1

App. 12


[95] is denied. Defendant's motion for leave to file response
(118] is granted. Plaintiff's second objections to defendant's
evidence and motion to strike the same [108] is granted in part
and denied in part. Defendant's motion to strike is granted in
part and denied in part. Defendant's motion for summary judgment
[90] is granted. Plaintiff's motion for summary judgment [97] is
denied. The preliminary injunction entered on May 29, 2002 is
dissolved. The Clerk of the Court is directed to enter judgment
in favor of defendant and against plaintiff dismissing
plaintiff's cause of action with prejudice except that the Count
Seven tortious interference claim is dismissed without prejudice

for lack of subject matter jurisdiction.

Willan Lor

UNITED STATES DISTRICT JODGE

ENTER:

DATED: DECEMBER 8 , 2003

- 50 -


647, 2002 WL 917789 (3d Cir. April 25, 2002). E-mail
communications may be authenticated as being from the purported
author based on an affidavit of the recipient; the e-mail address
from which it originated; comparison of the content to other
evidence; and/or statements or other communications from the
purported author acknowledging the e-mail communication that is

being authenticated. See United States v. Siddiqui, 235 F.3d

1318, 1322-23 (llth Cir. 2000), cert. denied, 533 U.S. 940
(2001); B.S. ex rel. Schneider y. Board of School Trustees,
Fort Wayne Community Schools, 255 F. Supp. 2d 891, 893-94 (N.D.

Ind. 2003); Uncle Henry's Inc. v. Plaut Consulting Inc., 240
F. Supp. 2d 63, 71-72 (D. Me. 2003).

Rule 56 provides in part that "papers or parts thereof
referred to in an affidavit shall be attached thereto or served
therewith." Fed. R. Civ. P. 56(e) (emphasis added). Plaintiff
may be objecting that papers referred to in particular affidavits
are not attached thereto. Documents cited in a particular
affidavit are not separately attached to each affidavit.

However, defendant's Appendix of Exhibits [92] binds together all
the affidavits and all the documentary evidence relied upon.

This certainly satisfies the "served therewith" alternative if
not the "attached thereto" alternative as well. No document
lacks a proper foundation for not being attached to an affidavit.

Defendant Exhibit L-46 is represented to be plaintiff's
application for the residency program. In Pl. 56.1(b) (3) (A),

plaintiff repeatedly admits that he submitted an application but

App. 2


After being informed of plaintiff's acceptance in mid-
June 2000, Leavy and Marla Dunning of the Office of Graduate
Medical Education contacted plaintiff and assisted him with
submitting an application for the required medical license. They
do not state when they first contacted him. Plaintiff first
provided a license application on July 12, 2000. However, that
application was incomplete. Letters and e-mails from plaintiff,
which are admissible against plaintiff under Fed. R. Evid.
801(d) (2), show that, in mid-August, plaintiff was still
attempting to obtain documentation necessary for his application.
See Def. Exh. L-26, L-29. It was not until August 30, 2000 that
plaintiff had submitted all the documents necessary to obtain a
license. On that date, however, Leavy also learned that
plaintiff's acceptance into the Program had been withdrawn so she
did not submit the materials. Even if the license application
had been submitted at that time, it still would have taken
additional time thereafter to receive the license. Plaintiff
states in an affidavit that the University was at fault for any
delays. See Pl. Sept. 29, 2003 Aff. TJ 37-43. In his affidavit,
though, plaintiff does not refer to any dates nor identify any
specific act of a University employee that contributed to the
delay. The conclusory statements in plaintiff's affidavit are
not supported by specific facts and therefore do not support a

genuine factual dispute as to the University, not he, being at

- 15 -