representations as to his Certificate and its possible
expiration. Therefore, it will be assumed that plaintiff's
present reinstatement would prevent his Certificate from expiring
and that renewing the certificate would require a significant
investment of time and money. It is found that plaintiff just
barely satisfies the irreparable harm requirement.

Although it is being assumed that plaintiff has some
likelihood of success in obtaining reinstatement and some
irreparable harm, neither is high on the scale. As previously
indicated, it also must be considered that there is a possible
risk to the public if plaintiff were to be reinstated such that
he would immediately begin attending patients. Placing plaintiff
in such a position would also be potentially harmful to defendant
in that it would place the University at risk of malpractice
liability. If this were the only possible form of relief, the
sliding scale would go against granting preliminary relief.

However, preliminary relief can be shaped in a manner
that represents essentially no burden whatsoever for defendant
and does not place any risk on the public nor require any
significant public expenditures. At the time the injunction
motion was presented in court, plaintiff suggested reinstating
him in the residency program without requiring that defendant
actually permit him to act as a resident. Essentially, this

would just be a "paper" reinstatement into the residency program.
3 P

- 19 -


As previously discussed, even if plaintiff's procedural
rights are shown to be violated, he would not be entitled to
reinstatement as relief unless it can be shown that a hearing
would have resulted in his being reinstated in the program.
Defendant contends cause existed for terminating plaintiff's
participation because he was not fully candid during the
interview process. On the limited evidence before the court, the
merits of this contention cannot be estimated with much clarity.
As previously discussed, the inability to develop the preliminary
injunction record is the result of plaintiff's dilatory conduct.
Thus, doubt as to this issue will be resolved against plaintiff.
It will be assumed that it is more likely than not that this
factual issue will be resolved against plaintiff. Failure on
this issue would preclude reinstatement. Therefore, it is more
likely than not that plaintiff will not ultimately succeed in
obtaining reinstatement. However, it is still possible that
plaintiff will succeed in proving that a hearing would have
resulted in a finding that plaintiff be permitted to participate
in the residency program.

As to likelihood of success on the merits, it is found
that plaintiff has some likelihood of success on the merits, but
that it is more likely than not that he will not be able to prove
that he is entitled to reinstatement. However, there can be a

sufficient basis for granting a preliminary injunction if the

- 13-


rejection in March 2001, waiting for the March 2002 announcement
did not excuse further delay in bringing suit or seeking
preliminary relief. Even if it did, he still waited almost two
more months after March 21, 2002 before moving for preliminary
relief. Thus, the urgent need for preliminary relief is
plaintiff's own creation which he could have avoided by timely
and diligently acting to protect his rights.

Plaintiff's delay in seeking a preliminary injunction
does not act as laches precluding any possibility of relief or
absolutely precluding a showing of irreparable harm. Ideal
Industries, Inc. v. Gardner Bender, Inc., 612 F.2d 1018, 1025
(7th Cir. 1979), cert. denied, 447 U.S. 924 (1980). That effect
could only arise if defendant had been lulled into a false sense
of security or acted to his detriment in reliance on the delay.

See id.; Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 903 (7th

Cir. 2001); Praefke Auto Electric & Battery Co. v. Tecumseh
Products Co., 123 F. Supp. 2d 470, 478-79 & n.8 (E.D. Wis. 2000).
The delay, however, is still a factor to be considered. To the
extent the urgency created by the delay prevents the evidence
from being adequately developed, the weakness in the evidence or
failure to make an adequate showing of a likelihood of success or
irreparable harm will be held against the movant. Additionally,

the delay may be considered in balancing the hardships. See

League of Women Voters v. Diamond, 923 F. Supp. 266, 275


There would be no possible risk to the public because plaintiff
would not actually be attending patients. Defendant would not
incur any expenses or burden because the injunction will
expressly provide that no salary is to be paid. Instead, the
order will provide that plaintiff is reinstated, but placed on
suspension without pay pending resolution of this court case.®
Whether this will actually prevent the Certificate from expiring
is unknown, but plaintiff believes that it will and, since no
burden is being placed on defendant, equity favors this attempt
to preserve rights of plaintiff that might otherwise be lost
during the pendency of judicial proceedings.

IT IS THEREFORE ORDERED that plaintiff's motions (a) to
xeconsider order of May 15, 2002, (b) to strike the affidavit of
James Feld, the exhibit, and portions of defendants' response to
plaintiff's motion for a temporary injunction, and (c) to strike

defendants' response to plaintiff's motion for a temporary

*At the prior court hearing, defendant also offered to
provide a hearing for plaintiff as to whether he should be fully
reinstated into the residency program. Defendant is free to
offer such a hearing during the pendency of the preliminary
injunction. Plaintiff expressed a disinclination to accept such
an offer, but he does so at the peril of being found to have
waived his procedural due process claim. While plaintiff may be
justified in questioning whether he can still expect a fair and
impartial hearing once he has already filed suit, see Patterson,
859 F.2d at 1407, the burden would likely be on plaintiff to show
at trial that declining such an offer (should it be made) was
justified. Plaintiff also has a duty to mitigate his damages.
Id. at 1408. Additionally, it is possible that accepting such a
hearing would result in his reinstatement or at least have some
healing affect. See id. at 1407.

- 20 -


Department of Professional Regulation may set additional
standards. See 225 ILCS 60/11(A) (2) (b) (1999).7 A regulation
of the Department provides: "In addition, if the applicant is a
graduate of a medical college outside of the United States or
Canada, he/she must hold a current certification, at the time of
application for licensure/examination, from the Educational
Commission for Foreign Medical Graduates." 68 Ill. Admin. Code
§ 1285.20(k). That regulation apparently incorporates the
Education Commission's definition of a "current" certification.
It is unclear whether plaintiff would suffer irreparable
harm if a preliminary injunction is denied. If reinstatement
into the program also means reinstatement of an August 1, 2000
matriculation date, then he avoids the need for recertification
even if he is not reinstated until the completion of this case
sometime after May 31, 2002. On the other side, if the
Certificate already expired on May 27, 2002 or if reinstatement
today would still result in a later start date that does not
prevent the expiration of the Certificate, the possible
irreparable harm has already occurred and entry of a preliminary
injunction will not avoid it. Still, the other possibility is

that reinstatement this week prevents the Certificate from

7Prior to March 23, 1999, this statute included an
express provision that a foreign medical school graduate "has
taken and passed the Educational Commission of Foreign Medical
Graduates Examination."

-17-


properly delegated the authority to do so. Defendant does
provide an affidavit in which he states plaintiff did not submit
a written request for a hearing. In plaintiff's affidavit, he
contends he repeatedly "demanded" a hearing, though he does not
specify whether any of those demands were in writing.” In his
response, defendant also sets forth his reasons for terminating
plaintiff's participation in the residency program. Feld states
that, at his interview with plaintiff, he asked plaintiff if he
had had any problems in past training programs, including whether
there were any “skeletons in [plaintiff's] closet." Feld states
that plaintiff disclosed no such problems and was thereafter
accepted in the program. However, Feld subsequently received

an anonymous telephone call about plaintiff and further
investigation disclosed that plaintiff had been terminated from

a residency program in 1999. In plaintiff's August 10, 2000
letter, he admits that he did not disclose this information at
the interview, and states it was because he "considered the event
a personal attack and not of significance." Defendant further
states in his affidavit that the decision to withdraw the offer
was "not because of some apparent problem at a previous residency

training program, but because he was not candid with me. [In

*Defendant provides an August 10, 2000 letter from
plaintiff in which plaintiff states: "I respectfully ask that a
complete and sufficient inquiry into this be done." That could
be construed as a written request for a hearing.


Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir.
1992). If the court is satisfied that these
three conditions have been met, then it must
consider the irreparable harm that the nonmoving
party will suffer if preliminary relief is
granted, balancing such harm against the
irreparable harm the moving party will suffer if
relief is denied. See Storck USA, L.P. v. Farley
Candy Co., 14 F.3d 311, 314 (7th Cir. 1994).
Finally, the court must consider the public
interest (non-parties) in denying or granting the
injunction. Id. The court then weighs all of
these factors, "sitting as would a chancellor in
equity," when it decides whether to grant the
injunction. Abbott Labs., 971 F.2d at 12. This
process involves engaging in what we term the
sliding scale approach; the more likely the
plaintiff will succeed on the merits, the less
the balance of irreparable harms need favor the
plaintiff's position. Id. The sliding scale
approach is not mathematical in nature, rather
"it is more properly characterized as subjective
and intuitive, one which permits district courts
to weigh the competing considerations and mold
appropriate relief." Id.

Ty, Inc., 237 F.3d at 895-96.

It has already been held that plaintiff has adequately
alleged a property interest in the residency program and a denial
of constitutional due process in not being provided a hearing to
contest his termination from the program. See Fenje TI, 2002 WL
859837 at *3-6. But even if plaintiff were to prove all the
allegations of his complaint, it does not necessarily mean that
the appropriate relief would be reinstatement into the residency
program. As to a claim for damages, it is possible to obtain
damages for the termination itself if it can be shown both that

procedural rights were denied and that such denial had a causal


(D. Me.), aff'd, 82 F.3d 546 (1st Cir. 1996); Bates v. Jones, 904
F. Supp. 1080, 1097 (N.D. Cal. 1995). Also, delay in pursuing
relief undercuts claims of irreparable harm and may be considered
as circumstantial evidence that the potential harm to plaintiff

is not irreparable or as great as claimed. See Ideal Industries,

612 F.2d at 1025; Praefke, 123 F. Supp. 2d at 478-79; Eldon

Industries, Inc. v. Rubbermaid, Inc., 735 F. Supp. 786, 797
(N.D. Ill. 1990); Mylan Pharmaceuticals, Inc. v. Shalala,

81 F. Supp. 2d 30, 43-44 (D.D.C. 2000); Abner Reaity, Inc. v.
Administrator of General Services Administration, 1998 WL 67663
*5 (S.D.N.Y. Feb. 18, 1998); Costello v. McEnery, 767 F. Supp.
72, 78 (S.D.N.Y.), aff'd by unpublished order, 948 F.2d 1278
(2d Cir. 1991), cert. denied, 504 U.S. 980 (1992).

Because of the urgency of a need for a ruling, the court
will rule on the motion for preliminary injunction based on the
papers that are before the court. However, because the urgency
has been brought about by plaintiff's dilatory conduct, doubts or
close factual issues generally will be resolved against
plaintiff.

In ruling on plaintiff's motion for preliminary
injunction, this court applies a "sliding scale approach."

A party seeking to obtain a preliminary
injunction must demonstrate: (1) its case has
some likelihood of success on the merits;

(2) that no adequate remedy at law exists; and

(3) it will suffer irreparable harm if the
injunction is not granted. See Abbott Labs. v.


expiring and keeps open the possibility that plaintiff will not
have to be recertified in the event he ultimately succeeds on his
claim for reinstatement. But even under this last scenario, a
question exists as to the extent of the harm. Plaintiff contends
it would take several years to prepare for recertification. It
is doubted, however, that it would take as long to prepare a
second time as it took the first time. Moreover, to the extent
it is true that plaintiff presently needs that much time to again
prepare for the test, a serious question would exist as to
whether he is presently qualified to perform the duties of a
medical resident. It would not be in the public interest to
order the reinstatement of a person not qualified to practice
medicine, even more so in the high-risk medical field of
anesthesiology.

As previously discussed, plaintiff's delay in seeking
preliminary relief is circumstantial evidence going against
finding that irreparable harm is actually present. Additionally,
as previously discussed, any doubt resulting from deficiencies in
the record will be resolved against plaintiff. Further,
resolving doubt in that manner is consistent with plaintiff
having the burden to show irreparable harm. The one factor that
brings pause is that, despite defendant's presumably ready access
to such information and evidence, defendant did not provide any

significant evidence gr argument disputing plaintiff's

- 18 -


on probation for one semester and given a failing grade in a
course that was a mandatory prerequisite for further nursing

studies); Bordelon v. Chicago School Reform Board of Trustees,

8 F. Supp. 2d 779 (N.D. Ill. 1998) (reinstating principal as the
principal of his former school after he had been transferred to a
"paper shuffler" position in the Central Office at the same rate
of pay as a principal). Also, at least one court has held that
following success on the merits of a claim that employment was
terminated in violation of procedural due process, a presumption
would arise that reinstatement in the former position is an
appropriate remedy. See Coleman v. Lane, 1994 WL 171446 *1-2
{(N.D. Ill. May 2, 1994). That presumption, though, would be
rebutted if, inter alia, it was shown adequate cause existed to
terminate the employee, that the employee was no longer qualified
to perform the job duties, or that no openings existed. See id.;
Gaddy v. Abex Corp., 884 F.2d 312, 319 (7th Cir. 1989).

In moving to dismiss the complaint, defendant contended
plaintiff's due process claim failed because his resident
contract was unenforceable in that it was not signed by an
authorized agent of the University and because plaintiff never
made a written request for a hearing as is required under the
University's procedures. In response to the motion for a

preliminary injunction, defendant points to no evidence and makes

no contention that the persons who signed the contract were not


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; Sitting Judge if O
arse Magiseate Judge WILLIAM T. HART tturanhed Sudse
CASE NUMBER 01 C 9684 DATE MAY 29, 2002
CASE PAUL FENJE, M.D. vy. JAMES FELD, M.D., ete.
TITLE

of the motion being presented.]

{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

CIFRCP4(m) (General Rule2i COFRCP41(a)(1) C1 FRCP41(a)(2).

plaintiff and against defendant James Feld as set forth in today's opinion.

al) lf [For further detail see order attached to the original minute order.]

MOTION:
DOCKET ENTRY:

ql) oO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

@) im} Answer brief to motion due. . Reply to answer brief due.

(4) Oo Ruling/Hearingon__—_setfor_ at

(5) a Status hearing [held/continued to] [set for/re-set for]on__setfor__—_at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor__—s—sat__—
(7) im Trial[set for/re-set forlon_ at.

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto___aat

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

(10) [Other docket entry] Plaintiff's motions (a) to reconsider order of May 15, 2002, (b) to
strike the affidavit of James Feld, the exhibit, and portions of defendants' response to plaintiff's
motion for a temporary injunction, and (c) to strike defendants' response to plaintiff's motion for a
temporary injunction are denied. Plaintiff's motion for preliminary injunction [17] is granted in part
and denied in part. The Clerk of the Court is directed to enter a preliminary injunction in favorof

vo No notices required, advised in open court.

No notices required, number of notices

Notices mailed by judge’s staff. MAY 2.9 2

Notified counsel by telephone.

date docketed

Docketing to mail notices.

& | Mail AO 450 form,

docketing deputy initials

Copy to judge/magistrate judge

courtroom
ow deputy’s
initials

Datertime, received in:
Central Clerk’s Office

smaiting initials



agreement could not be terminated without cause. Therefore, as
long as the contract was enforceable, plaintiff had a property
interest in his resident position. Fenje I, 2002 WL 959837 at
*3, 6. The only issue that has been raised as to the agreement's
enforceability is the question of whether it was signed by an
authorized official. Defendant does not dispute that the
agreement was signed by the Director of the Department of
Anesthesiology and Senior Associate Dean for Medical Education of
the College of Medicine. There is no present contention that
these persons were not authorized to sign the agreement on behalf
of the University.* On the record presently before the court, it
is more likely than not that plaintiff will be able to show that
the contract is enforceable.

Plaintiff's claim is for the denial of constitutional due
process, not for the contractual enforcement of the procedural
rights incorporated in the contract. However, there is no
contention that the contractual procedures are not sufficient to
satisfy due process requirements. Where constitutionally
sufficient procedures are available, including adequate notice of
the available procedures, no procedural due process violation
occurs when the complaining party fails to make use of those

procedures. Cotton v. Jackson, 216 F.3d 1328, 1331 (llth Cir.

3Even if not formally authorized, it is possible that a
pattern or practice of having such persons sign the contract
could be construed as an accepted University policy.

-11-


other words, I concluded at the time that he had misrepresented
his background." Defendant does not dispute that he
telephonically informed plaintiff of his removal from the program
and does not make any contention that he thereafter informed
plaintiff in writing.

Plaintiff's resident agreement incorporates the
procedural rights contained in an exhibit to the agreement
entitled "Procedural Rights to Suspension/Termination." That
document includes the following provisions:

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.

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.

The first issue to consider is plaintiff's likelihood of
success in obtaining final relief in the form of reinstatement
into the residency program. The facts before the court support

that the resident agreement went into effect on August 1, 2000

and was thereafter terminated. The facts also support that this

~10-


connection with the termination. Alston v. King, 231 F.3d 383,
386 (7th Cir. 2000). However, if plaintiff would have been
terminated from the program even if a hearing and other
procedural rights had been provided, he would not be entitled to
damages resulting from the termination itself. Id. He still
could be entitled to damages such as emotional distress, if such
stress was attributable to the procedural deficiencies
themselves, not just the termination. Id. If that causal
connection also could not be proven, then plaintiff would be
limited to nominal damages. Id. Similarly, as to injunctive
relief, if plaintiff cannot show a hearing would have resulted in
his reinstatement in the program, he would not be entitled to
injunctive relief ordering a reinstatement. Or in exercising
equity to fashion appropriate equitable relief, it may be found
that the appropriate relief is to order that a hearing be held,
with plaintiff also being entitled to any damages having a causal
connection to the delay in providing a hearing. See, e.g.,
Patterson v. Portch, 853 F.2d 1399, 1407-08 (7th Cir. 1988).
Still, it is recognized that circumstances may exist that justify
preliminary injunctive relief ordering reinstatement pending
resolution of the merits of a procedural due process claim. See,

e.g., Jones v. Board of Governors of University of North

Carolina, 704 F.2d 713 (4th Cir. 1983) (reinstatement of nursing

student terminated from the nursing program after she was placed


injunction are denied. Plaintiff's motion for preliminary
injunction [17] is granted in part and denied in part. The Clerk
of the Court is directed to enter a preliminary injunction in
favor of plaintiff and against defendant James Feld 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.

Wityri. T bet

UNITED STATES DISTRICT JUDGE

ENTER:

DATED: MAY 2& , 2002

-21-


denied, plaintiff was provided with the opportunity to file a
reply brief in support of a preliminary injunction, and a further
hearing date was set for May 28, 2002.

Ordinarily, an opportunity for discovery and an
evidentiary hearing on contested factual issues would be provided
before ruling on plaintiff's request for a preliminary
injunction. However, plaintiff's delay in bringing his present
motion does not allow time for such proceedings to be completed
prior to the expiration of his Certificate. The Certificate
expressly states on its face that it is valid through May 2002,
so plaintiff has known of the expiration date since the
Certificate was issued in July 1999. Nevertheless, plaintiff
waited more than 16 months after his termination before filing
the present lawsuit and, even after filing suit, waited almost
five more months before requesting preliminary relief
approximately two weeks before the Certificate expires.

Plaintiff offers no express explanation for the delay. He does
mention going through the National Residency Matching Program in
2001 and 2002 in an attempt to get into another residency
program, but being rejected by all programs. Although plaintiff
fails to mention the specific dates of his rejection, the court
takes judicial notice of news reports that the 2002 announcement
date for the Matching Program was March 21. Given that plaintiff

already knew of the May 2002 expiration date and his complete


other factors sufficiently weigh in plaintiff's favor. The
“minimum threshold for likelihood of success . . . is a low one:
‘(ijt is enough that the plaintiff's chances are better than
negligible . .. .'" Sofinet v. INS, 188 F.3d 703, 707 (7th Cir.
1999) (quoting Roland Machinery Co. v. Dresser Industries, Inc.,
749 F.2d 380, 387 (7th Cir. 1984)). Accord T Inc., 237 F.3d at
897.

The next question is whether no adequate remedy at law
exists. According to plaintiff's affidavit, following his
termination from the University of Illinois residency program, he
has not been able to get into another residency program.
Plaintiff will not be able to practice anesthesiology if he does
not complete a residency program in that field.‘ Therefore,
monetary relief would not be an adequate remedy because it would
still leave plaintiff without the ability to practice in his
chosen field.

Another basic requirement for a preliminary injunction is
a showing of irreparable harm. Plaintiff provides a copy of his
Certificate showing that it is valid through May 2002. Plaintiff
states in his second affidavit that it took him several years of

clinical training and academic study to pass the tests necessary

‘The complaint alleges that plaintiff is "a medical
doctor." It is unclear if this means that he may practice in
other medical fields in Canada, where he is a citizen, or if this
simply means that he has graduated from medical school and passed
his initial licensing tests.

-14-


The precise date and effect of the expiration of the
Certificate is unclear. If matriculation into the residency
program prior to the expiration date is all that is required,
then arguably plaintiff matriculated into the program on
August 1, 2000. If plaintiff were to be reinstated into the
program, it is unclear whether the date measured against the
expiration date of the Certificate would still be his initial
matriculation date or the date of reinstatement. It is also
possible that it would be a later date even if he were reinstated
now. The Educational Commission's website refers to the "start
date" of the Program. Neither party makes any representation as
to how the anesthesiology residency program is run, but it is
possible that it is a structured program that starts each August.
Reinstatement presently may actually mean that plaintiff would
have to wait until August 2002 for his start date. Moreover,
regardless of the Educational Commission's views as to the
expiration of the certificates it issues, it is actually Illinois
law that determines licensing requirements for doctors practicing
medicine in this state. Illinois statutory law contains certain
requirements for graduates of medical colleges located outside

the United States and Canada® and also provides that the Illinois

*Although a Canadian citizen, plaintiff apparently
attended medical school outside Canada and the United States. No
representation is made as to the particular medical school that
plaintiff attended.

-16-


plaintiff's due process claims against Feld in his individual and

official capacities. See Fenje v. Board of Governors of the

University of Tllinois at Chicago Medical School, 2002 WL 959837

(N.D. Ill. May 9, 2002) ("Fenje I"). Plaintiff alleges that he
had a property interest in his participation in the residency
program and that he was not provided a hearing to contest his
termination.

On May 13, 2002, plaintiff filed a motion for a
“temporary injunction" which was presented in court on May 15,
2002. Plaintiff had not previously requested preliminary relief
or expedited proceedings. Plaintiff seeks preliminary relief
reinstating him in the residency program. He contends such
relief is urgently needed because his certificate from the
Educational Commission for Foreign Medical Graduates (the
"Certificate"), which is generally required of graduates of
foreign medical schools who are in United States medical
residency programs, expires May 31, 2002. The court construed
plaintiff's request for a "temporary injunction" as a request for
both a temporary restraining order and preliminary injunction.
See generally Fed. R. Civ. P. 65. On May 15, after being
presented with defendant's written response, and after hearing

from both sides in court, the temporary restraining order was

*The other named defendant and plaintiff's equal
protection claim were dismissed.


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

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

official capacity and in his
individual capacity,

Defendant.

MEMORANDUM OPINION AND ORDER

In the summer of 2000, plaintiff Paul Fenje, a Canadian
citizen, was accepted into the anesthesiology residency program
at the University of Illinois at Chicago Medical School. The
residency was to run from August 1, 2000 until July 31, 2001.
Defendant James Feld is the Director of the Residency Training
Program for the Department of Anesthesiology at the University of
Illinois Hospital. On August 4, 2000, Feld informed plaintiff
that he was terminated from the residency program. Approximately
16 months later, in December 2001, plaintiff filed the present
lawsuit. Following this court's May 8, 2002 ruling on

defendants' motion to dismiss, the only remaining claims are

4?


2000); R.E. Grills Construction Co. v. Alabama Department of

Transportation, F. Supp. 2d , & n.5, 2002 WL 857319
*3 & n.5 (N.D. Ala. April 25, 2002); Rhyce v. Martin, 173

F. Supp. 2d 521, 530-31 (E.D. La. 2001); Locasio v. Winchester

Board of Education, 2000 WL 303224 *4 & n.8 (D. Conn. Feb. 17,

2000); Waste Conversion, Inc. v. Sims, 868 F. Supp. 643, 652

(D.N.J. 1994); Mid Gulf, Inc. v. Bishop, 792 F. Supp. 1205, 1211

(D. Kan. 1992). Defendant contends that plaintiff did not
request a hearing. The two parties' affidavits are in
disagreement as to whether plaintiff actually requested a
hearing, though plaintiff does not expressly state that he
requested a hearing in writing as would be required under the
contract and procedures. The one letter provided, however,
requests a "complete and sufficient inquiry" which could be
understood as a request for a hearing. However, the written
request requirement of the contract does not come into play until
the University first notifies plaintiff in writing of the
termination and also advises him of his right to a hearing.
There is no indication that the University ever notified
plaintiff in writing that he was terminated from the program or
that, after his termination, he was ever notified in writing or
otherwise of his right to a hearing. On the present record, it
does not appear likely that it will be shown that plaintiff

waived his opportunity for a hearing.

-~12-


for certification. Without providing any documents from the
Educational Commission itself, plaintiff represents that, if he
has not matriculated into a residency training program before the
Certificate expires, he will have to again take the clinical
examinations. He further represents that it would again take
several years of studying to pass the clinical examination.
Plaintiff provides no documentation from the Educational
Commission to support his representation that he would need to
again take the examination to renew his Certificate. Defendant
questions plaintiff's representation as supported only by
plaintiff's conclusory affidavit, but provides no evidence of its

own.®

‘Presumably, the Medical College would have employees who
are aware of the Educational Commission's practices and the
certification requirements for its residency programs and
therefore would have an ability to refute any incorrect
representations that plaintiff may have made about the
certification process. If defendant had serious questions about
plaintiff's representations, it should have provided its own
evidence. A check of the Educational Commission's website
(http: //www.ecfmg.org) confirms plaintiff's representation that
he will have to retake the clinical skills assessment test in
order to obtain a three-year renewal of the Certificate. The
website also supports that plaintiff is required to "enter" a
program before the Certificate's expiration date; there
apparently is no requirement that the program be completed before
expiration of the Certificate. "Enter" is further defined as
meaning the "start date" of the program must be before the
expiration date of the Certificate. The website also indicates
that a certificate is valid for three years from the date of a
passing performance for the pertinent test. Plaintiff's
Certificate states: "CLINICAL SKILLS ASSESSMENT MAY 27, 1999.
VALID THROUGH MAY 2002." It is possible that the Certificate
actually expired on May 27, 2002, not at the end of May as the
Certificate otherwise indicates.

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