Clay, Pamela R. v. Holy Cross Hospital ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2916
Pamela R. Clay,
Plaintiff-Appellant,
v.
Holy Cross Hospital,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 3835--James F. Holderman, Judge.
Argued February 16, 2001--Decided June 14, 2001
Before Easterbrook, Manion, and Diane P.
Wood, Circuit Judges.
Manion, Circuit Judge. Dr. Pamela Clay
sued her former employer, Holy Cross
Hospital, alleging that the Hospital
terminated her because of her pregnancy
in violation of Title VII. The Hospital
moved for summary judgment. The district
court granted the motion, concluding that
Clay failed to demonstrate that the
Hospital’s legitimate, non-discriminatory
reason for her termination was a pretext
for discrimination (the Hospital
administration asserted that Clay failed
to demonstrate the dedication necessary
to grow her practice into a profitable
enterprise). Clay appeals./1 We affirm.
I.
Holy Cross Hospital is located in
Chicago, Illinois. In 1992, the Hospital
embarked on a plan to create a
Neighborhood Affiliate Network
("Network") of primary care physicians
who would practice in offices in the
community surrounding the Hospital. The
Hospital’s strategy was to subsidize the
network of physicians with
guaranteedsalaries until their practices
matured into profitable enterprises, thus
eliminating the need for the Hospital’s
subsidy. A Practice Management Department
managed the daily operations of the
Network. Bill Seliga, the Hospital’s Vice
President of Practice Management, headed
the Practice Management Department and
reported directly to the Hospital’s Chief
Executive Officer, Mark Clement.
The Hospital hired its first physician
for the Network in 1993. From the
beginning of the Network’s creation,
Clement explained to the Network’s
physicians that they were expected to
"hustle" to build a profitable practice
because, at some point, they would be on
their own.
In June 1996, the Hospital hired Dr.
Pamela Clay to work as a pediatrician at
its Ford City Neighborhood Affiliate.
Clay signed a written employment contract
entitling her to an initial salary of
$100,000. The contract allowed either
Clay or the Hospital to terminate the
employment relationship upon 90 days’
notice. The Ford City Affiliate was under
the administrative control of Julie
Rudolph, a clinical operations manager in
the Hospital’s Practice Management
Department.
Clay became pregnant in late October
1997. (She did not disclose her pregnancy
to the Hospital’s administration until
May 1998.) By early 1998, the Network
failed to reach a break-even point and
continued to need the Hospital’s subsidy.
Additionally, the Hospital was having
financial difficulties of its own at that
time. Clement concluded that the Hospital
could no longer afford to subsidize the
Network at then-present levels, in part
due to reductions in Medicare payments
caused by the Balanced Budget Act of
1997. In the first few months of 1998,
the Hospital was losing approximately
$300,000 per month on the Network.
Due to the Network’s poor financial
performance, on April 14, 1998, Clement
met with Seliga to review the Network’s
subsidy and the fact that some physicians
and their practices were not performing
as well as expected. Clement asked Seliga
to assess the practice of each physician
in the Network to determine which
physicians "were going to get the
hospital where it needed to be," and
which physicians should be "prune[d]"
from the Network. Clement asked Seliga to
assess each physician’s practice,
including subjective factors like how
hard a physician was working, and whether
the physician was participating in the
Hospital’s marketing efforts in order to
build a profitable practice.
After his meeting with Clement, Seliga
met with several managers in the Practice
Management Department, including Julie
Rudolph, and Theresa Gaffney, the
Hospital’s Marketing Director. At that
meeting, Seliga told the practice
managers that the Hospital needed to
reduce the Network’s subsidy, and that it
would likely have to lay off some
physicians. He solicited the managers’
opinions on which physicians to
terminate. The practice managers
commented on each physician’s willingness
to participate in practice-building
efforts, and on their likelihood to grow
their practices. The group created a
preliminary list of physicians they
perceived to be less likely to grow their
practices to profitability. That initial
list included Clay and eight other
physicians.
Between April 14 and April 20, 1998,
Seliga reviewed Clay’s numbers concerning
her revenues, expenses, participation in
community events, hours in the office,
marketing activities, procedures provided
to patients, and patient volume. Then on
April 20, Seliga met again with Gaffney
and the practice managers to discuss the
list of proposed layoffs. According to
Seliga, the group reached a consensus
that each physician on the list was
unlikely to grow their practice to
profitability because they lacked the
willingness to participate in marketing
activities or to make the other efforts
required to see, attract, and service
more patients. The issue of pregnancy was
never brought up in the decision-making
process.
After some additional meetings between
Seliga, Clement, and other Hospital
administrators, the list of physician
layoffs was finalized on May 1, 1998. The
reduction-in-force ("RIF") was termed the
"Neighborhood Affiliate Reorganization"
and was expected to save the Hospital
approximately $2 million. As the head of
the Practice Management Department, Bill
Seliga had the ultimate authority,
subject to Mark Clement’s review, to
decide which physicians would be
terminated under the RIF.
Seliga testified that he decided to
terminate Clay because he concluded that
she would not achieve a financially-self-
sufficient practice regardless of the
amount of assistance she received from
the Hospital. According to Seliga, he
based his decision on his own knowledge
of Clay’s performance and on the advice
he received from other Hospital
employees, including Julie Rudolph and
Theresa Gaffney. Seliga testified that he
was advised by Gaffney that Clay was
uncooperative with the Hospital’s
marketing efforts, and that she failed to
participate in any of the Hospital’s 25
marketing events. Seliga also states that
he was told that Clay had low patient
accessibility. Patient accessibility
means the amount of time that a physician
is in her office and her receptivity to
walk-in patients. It is undisputed that
patient accessibility is "the key" to
building a successful practice. According
to Seliga, Gaffney and Rudolph told him
that Clay was unwilling to see patients
outside of her scheduled office time, and
that she would turn patients away who
were waiting in her office at the end of
her schedule. Seliga also testified that
Rudolph informed him that Clay was
reluctant to take advantage of
opportunities to grow her practice by
covering for other physicians who were
unavailable. And Seliga determined that
Clay’s practice had low growth and low
revenue, and that she had a generally
uncooperative attitude. Therefore, Seliga
claims that he concluded that Clay failed
to demonstrate the entrepreneurial spirit
and commitment necessary to grow her
practice into a profitable enterprise.
Clement, Rudolph and Gaffney
corroborated Seliga’s testimony.
According to Clement, physicians were
selected for termination because "what
they might have been looking for in a
position may not have been consistent
with what we were looking for in a
physician." Clement testified further as
to the kind of physician that the
Hospital was not seeking: "Some
physicians, some employees are looking
for a j-o-b, an entitlement; I’ll do my
40 hours; I’m not going to be responsible
for growing the practice; I’m not going
to be an owner." Rudolph affirmed that
the physicians selected for termination
were assessed to be less likely to grow
their practices than those who were
retained. Rudolph also testified that she
commented to Seliga about Clay’s
reluctance to see patients after hours.
And Rudolph noted Clay’s inadequate
revenue, as her net collections amounted
to $22,453 for the six-month period from
July 1997 to December 1997, while she
received a $50,000 salary for that same
period. Furthermore, Gaffney testified
that she told Seliga about Clay’s
unwillingness to participate in the
Hospital’s marketing efforts.
On May 14, 1998, Seliga met with Clay
about her termination. Seliga testified
that he first learned of Clay’s pregnancy
at that meeting. The following day, on
May 15, the Hospital formally announced
the Reorganization.
After the announcement of her
termination, Clay sued the Hospital,
alleging that she was terminated because
of her pregnancy in violation of Title
VII. The Hospital moved for summary
judgment, arguing that Clay could not
establish a prima facie case of pregnancy
discrimination because Seliga, the
Hospital’s decision-maker, was unaware of
Clay’s pregnancy when he selected her for
termination. The Hospital also argued
that Clay could not show that the
Hospital’s legitimate, non-discriminatory
reason for her termination (Seliga’s
belief that Clay failed to demonstrate
the potential to grow her practice to
profitability) was a pretext for
discrimination.
In her response to the Hospital’s
motion, Clay argued that she established
a prima facie case because Seliga knew
about her pregnancy before he selected
her for termination. Clay became pregnant
in late October 1997, and was pregnant
for a full nine months until she
delivered her baby on July 16, 1998.
According to Clay, she started to become
visibly pregnant in February 1998. She
testified that it is her "belief" that
Seliga knew of her pregnancy because she
and Seliga had attended a few Hospital
conferences and meetings in February,
March, and April of 1998. But Clay also
testified that she did not disclose her
pregnancy to the Hospital’s
administration until May 6, 1998, when
she faxed her request for maternity leave
to the Practice Management Office.
Clay also responded to the Hospital’s
motion for summary judgment by presenting
evidence that the Hospital ranked her
number 32 out of 70 physicians in the
Network according to the financial
performance of her practice. Thus, Clay
presented evidence that she treated more
patients and generated more revenue
during her first year of practice than
other physicians who were not terminated
by the Hospital.
The district court granted summary
judgment for the Hospital, concluding
that Clay failed to create a genuine
issue of material fact that the
Hospital’s proffered reason for her
termination was a pretext for
discrimination. The court determined that
Clay failed to "squarely rebut" the
reason offered by the Hospital for her
termination: the Hospital
administration’s belief that Clay lacked
the willingness to do what was necessary
to make her practice profitable, like
participate in the Hospital’s marketing
efforts, increase her patient
accessibility, and see patients at other
locations. Clay appeals.
II.
Clay argues on appeal that the district
court erroneously granted summary
judgment for the Hospital. We review de
novo the district court’s decision to
grant summary judgment, construing all
facts, and drawing all reasonable
inferences from those facts, in favor of
Clay, the non-moving party. Oest v.
Illinois Dep’t. of Corrections, 240 F.3d
605, 610 (7th Cir. 2001). Summary
judgment is proper when the "pleadings,
depositions, answers to interrogatories,
and admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law."
Fed.R.Civ.P. 56(c).
According to Clay, the Hospital violated
Title VII when it terminated her because
of her pregnancy. "The Pregnancy
Discrimination Act amended Title VII of
the Civil Rights Act to clarify that
pregnancy discrimination is included in
Title VII’s prohibition on sex
discrimination."/2 Ilhardt v. Sara Lee
Corp., 118 F.3d 1151, 1154 (7th Cir.
1997). Clay presents no direct evidence
of discrimination, and thus she proceeds
under the burden-shifting approach of
McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). According to this
method, Clay must first present a prima
facie case of discrimination by
establishing that: (1) she was pregnant
(a member of a protected class) and her
employer knew that she was pregnant; (2)
she was performing her duties
satisfactorily; (3) she was discharged;
and (4) similarly situated employees not
in the protected class were treated more
favorably. Ilhardt, 118 F.3d at 1154-55.
If Clay presents a prima facie case, then
the burden of production shifts to the
Hospital to articulate a legitimate, non-
discriminatory reason for her
termination. See Bekker v. Humana Health
Plan, Inc., 229 F.3d 662, 672 (7th Cir.
2000). Once the Hospital has proffered a
legitimate reason, the inference of
discrimination disappears, and Clay must
prove by a preponderance of the evidence
that the Hospital’s proffered reason was
a pretext for intentional discrimination.
Id. The ultimate burden to prove
intentional discrimination remains with
Clay. Id.The district court bypassed
consideration of whether Clay established
a prima facie case, stating that
"[b]ecause [Clay] has made no showing of
pretext, this court need not decide
whether she has established a prima facie
case of discrimination." Clay argues on
appeal that she presented sufficient
evidence to create a genuine issue of
material fact that the Hospital’s
proffered reason for her termination was
a pretext for discrimination. Pretext
"means a dishonest explanation, a lie
rather than an oddity or an error." Kulu
mani v. Blue Cross Blue Shield Ass’n.,
224 F.3d 681, 685 (7th Cir. 2000). "A
’pretext for discrimination’ means more
than an unusual act; it means something
worse than a business error; ’pretext’
means deceit used to cover one’s tracks."
Id. at 684. "On the issue of pretext, our
only concern is the honesty of the
employer’s explanation." O’Connor v.
DePaul University, 123 F.3d 665, 671 (7th
Cir. 1997). Thus, even if Seliga’s
reasons for Clay’s termination were
"mistaken, ill considered or foolish, so
long as [Seliga] honestly believed those
reasons, pretext has not been shown."
Jordan v. Summers, 205 F.3d 337, 343 (7th
Cir. 2000).
Clay first argues that she established
pretext because she presented facts
demonstrating that Seliga lied when he
testified that he did not know about
Clay’s pregnancy before selecting her for
termination under the RIF, and thus
Seliga lacks credibility. In support of
her contention, Clay testified that she
"started becoming visibly pregnant in
February 1998," and that it was her
"belief" that Seliga knew about her
pregnancy because she and Seliga attended
approximately two or three Hospital
conferences or meetings in early 1998.
Clay also asserts in her response brief
that her "husband announced his wife’s
pregnancy to Bill Seliga" at a conference
in March 1998. According to Clay, these
facts demonstrate that Seliga lacks
credibility, and thus "it should follow
that everything he [Seliga] says
regarding Dr. Clay is either suspect or
wholly without merit." Hence, Clay
contends that her case turns on the issue
of Seliga’s credibility, which is best
resolved by a jury.
The district court considered Seliga’s
credibility as an issue pertinent only to
whether Clay had established her prima
facie case. The court chose not to sort
out the question of whether Seliga did or
did not know Clay was pregnant; instead,
the court bypassed the prima facie
analysis and proceeded to the question of
whether Clay raised a triable issue of
fact regarding pretext./3
Although the court left that step of the
prima facie case unanswered, Clay insists
that the timing of Seliga’s knowledge of
her pregnancy is pivotal to her pretext
claim. Yet a review of the record does
not establish the inference that Seliga
knew about her pregnancy before he
selected her for the RIF. No doubt there
were earlier occasions when he had an
opportunity to make that discovery. But
Clay’s assertion that her husband
announced her pregnancy to Seliga lacks
support in the record. Mr. Clay’s
affidavit states that he "discussed [his]
impending fatherhood in the company of
Bill Seliga" at a conference in March
1998. Mr. Clay does not allege that
Seliga heard his conversation or acknowl
edged it in any way. Dr. Clay testified
that the conference was held in a "large
room" and was attended by "approximately
30 or 40" people./4 Just because Seliga
was in the same large room with a number
of people does not justify the inference
that he heard Mr. Clay’s discussions with
others about his wife’s pregnancy./5
Moreover, Dr. Clay testified that she
"was trying to keep things quiet"/6
about her pregnancy from the Hospital’s
administration (including Seliga) until
May 6, 1998, when she faxed in her
request for maternity leave. Precisely
because Dr. Clay was "trying to keep
things quiet" about her pregnancy from
Hospital officials until May 6 supports
the inference that she was not certain
that Seliga knew about her pregnancy at
that time. We conclude that the record
does not support Clay’s allegation that
Seliga knew about her pregnancy before he
selected her for the RIF./7
But even if Clay presented sufficient
evidence to create a triable issue that
Seliga lied about when he became aware of
Clay’s pregnancy, Clay’s pretext argument
is still unavailing. To prove pretext,
Clay must present facts that cast doubt
on the Hospital’s specific reasons for
her termination. Paluck v. Gooding Rubber
Co., 221 F.3d 1003, 1013 (7th Cir. 2000);
see also Sweeney v. West, 149 F.3d 550,
557 (7th Cir. 1998) ("The plaintiff must
call the employer’s honesty into question
by rebutting the reason given.").
Therefore, Clay’s pretext claim turns on
Seliga’s credibility on his stated
reasons for her termination only after
Clay has offered "specific evidence from
which the finder of fact may reasonably
infer that the proffered reasons do not
represent the truth." Collier v. Budd
Co., 66 F.3d 886, 893 (7th Cir. 1995).
Clay’s "burden is to squarely rebut the
articulated reason for [her] discharge."
Plair v. E.J. Brach & Sons, Inc., 105
F.3d 343, 349 (7th Cir. 1997). Moreover,
she must present facts to rebut each and
every legitimate, non-discriminatory
reason advanced by the Hospital in order
to survive summary judgment. See Adreani
v. First Colonial Bankshares Corp., 154
F.3d 389, 399 (7th Cir. 1998) ("The
existence of a genuine issue of triable
fact with respect to some of the reasons
for discharge proffered by the employer
is of no consequence as long as at least
one reason is uncontested."). Clay has
not met her burden in this case.
The Hospital’s stated reason for Clay’s
discharge under the RIF is that the
administration (especially the decision-
maker, Bill Seliga) honestly believed
that Clay "lacked the drive, work ethic,
and dedication to grow her practice to
profitability in the future." More
specifically, the Hospital asserts that
Seliga believed that Clay had a generally
uncooperative attitude, failed to
participate in the Hospital’s marketing
events, was unwilling to maintain a high
level of patient accessibility, was
reluctant to cover for other physicians,
and maintained a practice that had low
growth and low revenue.
Clay attempts to prove pretext by
presenting evidence that the financial
performance of her practice ranked number
32 out of the 70 physicians in the
Network, and that she treated more
patients and generated more revenue
during her first year of practice than
other physicians who were not terminated
by the Hospital.
While Clay’s evidence indicates that her
practice may have performed better
financially than other physicians who
were not terminated by the Hospital, Clay
does not show that her practice was
profitable, as it was losing money for
the Hospital. Therefore, compared to a
profitable practice, Clay’s practice did
indeed have low revenue. Moreover, Clay’s
evidence does not rebut Seliga’s other
reasons for his decision to select Clay
for termination under the RIF. See
Adreani, 154 F.3d at 399.
Seliga selected physicians for the RIF
according to his assessment of each
physician’s potential to build his or her
practice into a profitable enterprise, as
well as on the current financial
performance of the practice. It is
undisputed that Clement asked Seliga to
assess each physician’s practice,
including subjective factors like how
hard a physician was working and whether
she was participating in the hospital’s
marketing efforts to build a profitable
practice. It is also undisputed that
Seliga solicited the opinions of the
Hospital’s marketing and practice
managers on the "physicians’
participation and receptivity to volume
building, and the physicians’ likelihood
to grow their practices." Clay’s evidence
does not rebut these reasons regarding
Seliga’s assessment of her efforts at
building her practice into a profitable
enterprise.
Clay presents no evidence to rebut
Seliga’s testimony that Gaffney advised
him that Clay was uncooperative with the
Hospital’s marketing efforts, and that
Clay failed to participate in any of the
Hospital’s 25 marketing events. Clay
attempts to refute this reason with her
own testimony that she solicited new
patients by participating in a radio
broadcast, appearing at a mall, visiting
a local factory and joining a community
board. But this evidence does not
indicate that Clay participated in the
Hospital’s marketing events, and thus it
does not rebut Gaffney’s assertion, or
the fact that Gaffney notified Seliga
about her frustration with Clay’s lack of
participation. Thus, Clay’s testimony
does not demonstrate pretext because it
does not show that Seliga did not
honestly believe that Clay was unwilling
to participate in the Hospital’s
marketing events. See O’Connor, 123 F.3d
at 671.
Clay also fails to show that Seliga did
not honestly believe that she was
unwilling to increase her patient
accessibility. According to Seliga,
Gaffney and Rudolph informed him that
Clay would refuse to see patients outside
of her scheduled office time. Rudolph’s
deposition testimony confirmed Seliga’s
assertion. And Clay presents no evidence
to rebut the basis of Seliga’s belief, or
to show that he did not honestly believe
that Clay was unwilling to increase her
patient accessibility.
Another reason for Seliga’s decision to
terminate Clay was his belief, based on
Rudolph’s information, that Clay was
reluctant to build her practice by
covering for other physicians. Clay
attempts to refute this reason by
identifying excerpts of her deposition
testimony where she stated that she had
in fact covered for other doctors. But
Clay made no such argument at summary
judgment, and thus it is waived. See
Arendt v. Vetta Sports, Inc., 99 F.3d
231, 237 (7th Cir. 1996) ("’We have long
refused to consider arguments that were
not presented to the district court
inresponse to summary judgment
motions.’") (quoting Cooper v. Lane, 969
F.2d 368, 371 (7th Cir. 1992)). Moreover,
her testimony does not show pretext
because it does not rebut the basis of
Seliga’s belief (Rudolph’s comments that
Clay was reluctant to cover for other
physicians), or that Seliga honestly
believed that Clay was lacking in this
area./8 Therefore, Clay has failed to
prove pretext because she has not
presented facts to refute Seliga’s
reasons for her termination.
We also note that the Hospital did not
rely solely on Seliga’s testimony, as
Clement, Rudolph and Gaffney corroborated
Seliga’s description of his methodology
in conducting the RIF, and the basis for
his belief that Clay had failed to
demonstrate the dedication necessary to
build her practice into a profitable
enterprise. It is also undisputed that
the issue of pregnancy was never brought
up in the decision-making process, and
that Seliga collaborated with other
practice managers to compose the list of
physicians to be terminated. We conclude,
therefore, that Clay’s pretext arguments
are unavailing.
III.
Clay has failed to demonstrate that the
Hospital’s proffered reason for her
termination was a pretext for intentional
discrimination. Clay has not shown that
the Hospital’s decision-maker, Bill
Seliga, did not honestly believe that
Clay lacked the drive, work ethic, and
dedication to grow her practice into a
profitable enterprise. We thus AFFIRM the
district court.
FOOTNOTES
/1 Clay claimed to the district court that the
Hospital terminated her, and failed to offer her
a transfer, in violation of Title VII and the
Family and Medical Leave Act ("FMLA"). Although
the district court granted summary judgment for
the Hospital on all of her claims, Clay has only
presented a sufficient argument on appeal to
challenge her termination as a violation of Title
VII. See Kalis v. Colgate-Palmolive Co., 231 F.3d
1049, 1057 n.5 (7th Cir. 2000) ("’We repeatedly
have made clear that perfunctory and undeveloped
arguments, and arguments that are unsupported by
pertinent authority, are waived.’") (quoting
United States v. Berkowitz, 927 F.2d 1376, 1384
(7th Cir. 1991)). Therefore, the only argument
that Clay has not waived on appeal is that the
district court erred in granting summary judgment
for the Hospital on her claim that she was
terminated because of her pregnancy in violation
of Title VII.
/2 The Pregnancy Discrimination Act provides that
"women affected by pregnancy, childbirth, or
related medical conditions shall be treated the
same for all employment related purposes . . . as
other persons not so affected but similar in
their ability or inability to work." 42 U.S.C.
sec. 2000e(k).
/3 The district court stated: "This court accepts
Dr. Clay’s improperly-filed evidence that she and
Seliga were in the same place at the same time on
several occasions while Dr. Clay was visibly
pregnant. This court also accepts Dr. Clay’s
evidence casting doubt on Seliga’s credibility,
so as to undercut his explanation that he did not
know Dr. Clay was pregnant when he decided to
terminate her employment. Nevertheless, this
court declines to decide whether Dr. Clay’s
evidence is sufficient to create a genuine issue
of whether the decision-maker knew she was preg-
nant at the time she was terminated under Title
VII or whether Holy Cross would have terminated
her but for her decision to take a maternity
leave under the FMLA. Because plaintiff has made
no showing of pretext, this court need not decide
whether she has established a prima facie case of
discrimination."
/4 Dr. Clay also testified that she had no recollec-
tion whether she was ever "face-to-face" with
Seliga at that event.
/5 On the one hand, Clay testified that she "was
trying to keep things quiet" about her pregnancy
from Hospital officials until May 1998, but the
affidavit by her husband (in which he avers that
he discussed and even celebrated his wife’s
pregnancy in the proximity of the same Hospital
officials in March 1998) obviously conflicts with
her intent.
/6 In Clay’s deposition, she was asked: "Why didn’t
you send that maternity leave request form in
earlier than you did [in early May]?" Clay
answered: "Again, because I was trying to keep
things quiet. I didn’t want those who were not
friends of mine to be aware of the fact that I
was pregnant, so that’s why I waited."
/7 Without showing that Seliga actually knew of her
pregnancy, Clay would not have established the
first element of a prima facie case of pregnancy
discrimination because she had not shown that her
employer knew that she was pregnant. Ilhardt, 118
F.3d at 1154. As noted, the district court by-
passed that question. Moreover, it is undisputed
that eight other Holy Cross physicians had been
pregnant, had taken maternity leave, and had not
been terminated. Clay’s response to that fact is
that all except one of those physicians were
retained before Holy Cross began to lose substan-
tial amounts of money. But one of the eight
physicians, Dr. Beth Davis-Phillpotts, went on
maternity leave, returned, was initially selected
for the RIF, but then Seliga determined that she
would "hustle" to build a profitable practice if
she were given a second chance, and thus she was
retained and placed at another location in the
Network.
/8 Clay also argues for the first time on appeal
that because the Hospital produced no written
standards for Network physicians, and no perfor-
mance evaluations or other written assessments of
Clay’s job performance, that is further evidence
of pretext. Because Clay never made this argument
to the district court, it is waived. Arendt, 99
F.3d at 237. Moreover, the argument lacks merit.
There is no dispute that Clement asked Seliga to
assess each physician’s practice, including
subjective factors like the physician’s efforts
to grow her practice. And it is discernable from
the record that Seliga’s method in conducting the
RIF involved his consultation with the Hospital’s
marketing and practice managers before he select-
ed the physicians for termination under the RIF.
While more precise and objective criteria may
have been possible, "any lack of precision in the
articulated standards does not mean that [Clay’s]
inclusion in the RIF was necessarily a pretext
for [pregnancy] discrimination." Paluck, 221 F.3d
at 1014. "The dispositive question is whether
[Clay] has shown that [the Hospital’s] stated
reason for including her in the RIF . . . was
pretextual." Id. at 1015. Because Clay has failed
to refute the Hospital’s reason for her termina-
tion, this argument fails.
DIANE P. WOOD, Circuit Judge, concurring in the
judgment. It may be true that there are some
people so obtuse that they cannot recognize the
condition of a woman six or seven months along in
her pregnancy, and that there are some pregnan-
cies that are not detectable until the day of
delivery. These, however, are the rare cases. I
make this point in order to disagree with the
majority’s conclusion, ante at 12, that "the
record does not support Clay’s allegation that
Seliga knew about her pregnancy before he select-
ed her for the RIF." To the contrary, as the
district court recognized and as even the major-
ity’s opinion tacitly acknowledges, there are
genuinely disputed issues of fact about the state
of his knowledge.
The record shows that Pamela Clay became preg-
nant in late October 1997 and that she delivered
a full-term baby in mid-July 1998. It also shows,
according to Clay’s affidavit, that she had
become visibly pregnant by February 1998. This is
not only a fact of which Clay obviously had
personal knowledge; it is one she was willing to
back up with contemporaneous photographs of
herself, which she proffered at the summary
judgment stage. Beyond that, common experience
suggests that most women are "showing" well
before that time, as a brief glance at the
patrons in a maternity clothing store would
confirm. The record, taken in the light most
favorable to Clay’s position, also shows that she
attended either two or three hospital conferences
or meetings with Bill Seliga between February
1998 and before April 1998, when he became en-
gaged in the RIF process. The majority’s opinion
does not take issue with any of these points. See
ante at 7. Instead, it appears to place decisive
weight on the fact that Clay did not "disclose"
(verbally) her pregnancy to Seliga until May 6,
1998, approximately two months before she deliv-
ered the baby. A trier of fact might believe
Seliga’s story that he (a hospital manager) was
oblivious to Clay’s visible pregnancy at the time
of those meetings, but a trier of fact with the
photographs in front of it equally might find
such a story incredible. I see no warrant for the
majority’s decision to resolve this issue of fact
in the Hospital’s favor, at the summary judgment
stage. Indeed, in light of its subsequent discus-
sion of pretext, this part of the opinion is
little more than dicta in any event. I would find
that Clay successfully established her prima
facie case of discrimination.
This case turns, as so many do, on the issue of
pretext. If we now assume that Seliga knew that
Clay was pregnant, lied about his knowledge, and
chose her for termination in the RIF procedure,
is this enough to cast doubt on the other reasons
the Hospital proffered for asking Clay to leave?
That, I believe, is a much closer question. The
Hospital points to substantial evidence all of
which shows that Clay was not the kind of "team
player" or financial performer it wanted. Clay
has made two mistaken assumptions here. First,
she apparently believes that her case is won if
she can prove that Seliga was lying about his
knowledge of her condition; that, however, is not
true. The question remains whether that lie is
enough to taint all the rest of the Hospital’s
evidence about its reasons for including her in
the RIF. It is not, as the majority explains, if
an untainted reason remains that independently
supports the employment decision. Second, Clay
appears to think that the way to raise a genuine
issue of fact on the pretext question is to
present evidence that would refute the Hospital’s
ultimate conclusion that she was not likely to be
a good doctor, a good business generator, and a
good financial risk. That, too, is not correct;
the question instead is whether there is any
evidence that suggests that these were not bona
fide reasons for the Hospital’s actions. If the
Hospital wanted people to attend its own market-
ing events rather than addressing the topic of
marketing with a free-lance approach, it was
entitled to take this position. Clay’s earnings
hardly made her a star among the doctors; she was
instead squarely in the middle, ranked financial-
ly as number 32 out of 70. For these reasons, as
well as the others the majority discusses in the
opinion, ante at 12-16, I would affirm the dis-
trict court’s decision on the basis that Dr. Clay
has not raised a genuine issue of material fact
on the question of pretext. I therefore concur in
the judgment.