*1 injuries, on; and so one can’t have the The award of restitution vacated and the productive subtractions for use without the case remanded calculation, using the additions for harms caused off-label principles in opinion, of the amount uses. Defendants do not propose to make that defendants owe to each of AbTox’s harms, restitution for these they so can’t customers.
obtain subtractions either.
There problem: remains one What of
the machines that remained in service af- (from
ter the recall? recall A notice is
customer’s perspective) an option rather
than a hospitals command. Some re-
turned their Plazlyte machines; others junked them; but a few kept them and DEWITT, Phillis Plaintiff-Appellant, them, using continued even purchasing ex- tra sterilant from AbTox to extend their (The lives. FDA allowed AbTox to sell the HOSPITAL, PROCTOR an Illinois peracetic hospitals acid to that certified not-for-profit corporation, their awareness of the recall and the rea- Defendant-Appellee. it.) sons behind These customers evident- No. 07-1957.
ly believed that the machines valu- and, if hospitals took care to avoid able— United States Court of Appeals, certain kinds instruments, they contin- Seventh Circuit. ued to be safe. think We that no restitu- Argued Nov. 2007. tion is owed to that, customers with full knowledge, continued operate Plazlyte Decided Feb. 2008. longer machines for than necessary replace them. (Hospitals that retained the
Plazlyte only sterilizers until they could new, approved
secure equipment should be
grouped with hospitals that returned them recall.)
in the In principle hospitals that
kept their machines in long-term service
are entitled to compensation reduc-
tion in the value Plazlyte sterilizers (not
would have on resale only because of
the blow to their reputation but also be- spare
cause parts will be hard by), to come (or
but unless that proxy, value
reduction in the machines’ expected useful
lives) can determined, judge should
assume that hospitals kept their
Plazlyte machines for more year than a
after the recall notice will use them until
they wear out.
The judgment district court is
affirmed except respect to restitution. *2 Peoria, IL, Plain- Williamson,
J.Nile tiff-Appellant. Campbell, Russo, & Davis A.
Richard Defendant-Appellee. Peoria, IL, for POSNER, CUDAHY, Before EVANS, Judges. Circuit EVANS, Judge. Circuit job as from her she was After 47- Hospital, at Proctor nurse registered sued, alleging “as- Dewitt Phillis year-old Ameri- under the discrimination” sociation (ADA) as well Act Disabilities cans The dis- discrimination. gender age and summary judgment entered court trict favor of Proctor. The court also proved denied (unpaid time), absence” allowing Dewitt’s motion for leave to amend her reach the minimum number of complaint to add a claim retalia- ERISA necessary hours to qualify for benefits. tion. Today we resolve appeal Since Proctor *3 self-insured, it took a from those decisions. keen interest in the medical claims submit- September 2001, In Proctor, hospital a ted by its employees. Each quarter, Peoria, Illinois, hired Dewitt fact, to work Progressive as Services, Benefits the ad- a nurse on an “as-needed” basis. Proctor ministrator of Proctor’s plan, medical pre- apparently liked how Dewitt job did her pared “stop-loss report” for Linda K. because the following month was pro- Buck, she vice-president Proctor’s of human moted to permanent position of sec- resources. report identified all em- ond-shift clinical manager. In role, ployees whose recent medical claims ex- supervised Dewitt nurses and other Proc- $25,000. ceeded staff tor members. The stop-loss reports highlighted De- years Three job, into the Dewitt expenses. witt’s Although Dewitt was not switched to the first-shift clinical manager listed reports (indi- for 2001 and 2002 slot. In 2005, the summer of she switched cating that her family’s expenses, to a part-time schedule, sharing the re- particularly those husband, of her were sponsibilities of second-shift clinical man- $25,000), less than during the next three ager with a coworker. years Anthony underwent costly medical procedures. 2003, In the Dewitts’ medical Dewitt, (for it appears we must assume claims for Anthony $71,684. were 2004, In the facts to be as she presents them at this figure jumped $177,826. to In the first stage of the proceedings), was a valuable eight 2005, months of the expenses were employee. In her last evaluation, her su- $67,281.50. pervisor, Mary Davis, Jane described her as an “outstanding clinical manager In September [who] 2004, Davis confronted consistently goes the extra mile.” But Dewitt about Anthony’s high medical things were quite as rosy they claims. Specifically, she asked what treat- appeared. ment Anthony was receiving, and Dewitt responded that he was undergoing chemo- Dewitt husband, and her Anthony, were therapy and radiation. Davis asked De- covered under Proctor’s health insurance witt if she had considered hospice care for plan. Throughout Dewitt’s tenure at Proc- her husband; Dewitt responded that An- tor, Anthony suffered prostate cancer thony’s doctor considered less expensive expensive received medical care. His hospice care placement to premature. be covered medical expenses paid were by Davis explained that a committee was re- Proctor, which was partially self-insured. viewing Anthony’s medical expenses, which It paid for members’ covered medical costs she described as unusually high. up $250,000 per year. Anything above this “stop-loss” figure was covered In February 2005, Davis again pulled policy issued by the Standard Security Dewitt aside to ask about Anthony’s treat- Life Insurance Company of New York. ment. Dewitt informed her that Antho- ny’s situation had not changed.
Dewitt was able to maintain health in- surance coverage for herself and Anthony In May 2005, organized Davis a meeting even during her part-time short stint, since for Proctor’s clinical managers. She in- Proctor credited Dewitt with “hospital ap- formed the employees that Proctor faced De- compared quite modest tually which, according troubles, financial expenses cut witt’s. effort a “creative” Davis, required $173,712.32short of $4,114.05, staggering costs. that, Dewitt top On total. Dewitt’s August Dewitt Proctor job about Lockhart’s nothing offers next “ineligible to designated say he was than other responsibilities provided in the future.” rehired room emergency and an nurse registered for rehire” “ineligible explanation no court, on this The district manager. benefits Dewitt’s decision.1 record, correctly concluded sparse Au- end through the continued claim had gender discrimination for COBRA that, paid After Dewitt gust. *4 not, as re- again did she fail to because a get to (which able she was coverage Doug- McDonnell ubiquitous quired months) and herself of 18 maximum “similarly situated” a test, identify las months, as it turned But 18 her husband. received sex who the other of member year Anthony, a out, necessary wasn’t hospi- from the treatment more favorable fired, up gave was Dewitt after and week a tal. August on He died cancer. fight with 9, 2006. claim best to Dewitt’s come Now we litigated “as- infrequently she invokes discrimi gender age Dewitt’s of the section discrimination” sociation On resolved. quickly can be claims nation 12112(b)(4), an 42 U.S.C. ADA. Under replaced was claim, says she she age her discriminating prohibited is employer Michelle named 25-year-old woman by a of “the a result employee this on “evidence” Dewitt’s But Patton. with individual disability of an known than statement nothing more is point have a known to employee] is [the whom her is not based affidavit her Specifically, relationship or association.” Proctor, the other knowledge. personal to avoid fired her that alleges she Ms. knowledge from hand, personal offers substan- for the pay continue having to two during the that effect Buck being incurred that were costs tial medical discharge, sev following Dewitt’s months self-in- Proctor’s under husband by her (a eight is total eral different plan. insurance sured health was spot before her filled suggested) Glover, who Sarilee permanently, given, issue, Lar case on seminal In our inability Dewitt’s old. years was Machines Business International imer v. often- under requirement, satisfy the (7th Cir.2004), we 698, 700 Corp., test, she that Douglas McDonnell cited “asso into which categories three outlined pro outside by someone replaced generally plaintiffs ciation discrimination” years under group tected (2) —someone (1) dis expense; them called fall. We claim. discrimination age her age—dooms (3) association; distraction. ability by scenario, that noted we “expense” In discrimination gender her Ditto for has spouse her because fired employee, a male that alleges claim, Dewitt where costly to the disability expenses, high medical health company’s by the (i.e., covered he is Lockhart, fired. Ray named chap scope the intended is within plan) ac- expenses Lockhart’s But forward, not some- but it is moves this case brief, says, elabora- without 1. In developed so far. been thing has tion, for "insubordina- was fired that Dewitt position as Proctor's may bewell That tion.” “associational discrimination” section would have to be “creative” in cutting the ADA. costs. Douglas test is not easi- McDonnell powers-that-be That the at Proctor were ly under the adaptable claims section specifically in high interested cost of permits ADA causes action Anthony’s medical treatment is obvious. It’s a like a association discrimination. bit Davis, (and supervisor person trying push foot stepsister big mean ultimately her), pulled who Dewitt tiny glass slippers. into one of Cinderella’s aside inquire twice five months to about Larimer, struggled with the task Anthony’s condition. These conversations reformulating Douglas the McDonnell indicate that Davis was very interested test, suggesting that a similar effort limiting Anthony’s claims. their During Hartog Academy, Den Wasatch chat, first Davis informed Dewitt (10th Cir.1997), F.3d 1076 while close Proctor committee was reviewing Antho- mark, improved. could be tweaked and ny’s unusually high expenses. suggested plaintiff, And so we that a with- She also asked Anthony’s Dewitt whether discrimination, out direct evidence of could doctor hospice placement— had considered *5 (1) prove by establishing her case that: cheaper a far costly “alternative” to the qualified job she was at the of time chemotherapy Anthony and radiation was action; (2) employment the adverse she receiving. subjected to employment
was an adverse (3) Finally, action; timing termi- Dewitt’s by she was known her employer nation suggests that the financial at the albatross time have a relative associate (4) Anthony’s disability; with her case continued cancer treatment falls into an important three factor in categories one relevant Proctor’s deci- distraction, or sion. expense, August association. Lar- Dewitt was fired in 2005— imer, at 370 F.3d 701-02. five months after her last chat with Davis and three after months Proctor warned may all While this be well and employees impending about “creative” case, good, we think Dewitt’s the final cost-cutting measures. One could reason- analysis, does not to be considered ably infer that Dewitt was terminated af- light of the McDonnell Douglas tweaked ter Proctor conducted its latest periodic fairly test she cir- persuasive because has analysis and, of medical claim “outliers” suggesting cumstantial that her evidence around, this time decided that “wait its relying case best viewed as one on direct and see” strategy the Dewitts was so, think, jury evidence. And we should costing hospital tens of thousands of consider her claim. every year. juror dollars A reasonable Proctor, could conclude that which faced a evidence suggests uncontroverted struggle financial Proctor, trouble, length, of indeterminate which faced financial very Anthony—a multi-year was concerned that cutting about concerned costs. cancer on unusually high veteran—might linger Because Proctor’s indefinite- “stop- ly. distinguishes loss” didn’t kick in until This later fact coverage claims Dewitt’s $250,000, personally exceeded case from the situation in it felt the Larimer where heavy expenses. employee’s daughters bite of the fired twin Proctor wasn’t “healthy discreet about its concerns: in the and normal” longer and thus no May meeting, Davis employment informed Proc- disabled when the termination tor’s clinical managers hospital decision was made. Dewitt, terminating none since it feared that arguments, makes several Anthony’s It con- expensive might find contends treatment persuasive. indefinitely Dewitt could tinue COBRA cover- its decision to terminate high age expire cost of after 18 months. would
not have been based Anthony’s treatment because the cancer Because Dewitt has established that di- employ- other female expenses of evidence of rect “association discrimina- Specifically, those of Dewitt. ees exceeded may tion” motivated Proctor points evidence her, al- jury decision fire should be ex- 2004, and Dewitt’s claims were lowed to consider her claim. one or two other em- those of ceeded Lastly, Dewitt contends that however, unclear, whether ployees. It is in refusing court erred to allow her to (or members), other plan these complaint amend her add a claim of that Proctor Anthony, had conditions like retaliation. The district court de ERISA require expensive prolonged, feared motion on the futili nied Dewitt’s basis of potentially which could medical treatment ty, it determined claim since that her Thus, with- into the future. continue far ultimately would have failed. We review employees’ cumulative comparison out a mo deny district court’s decision to predic- expenses and treatment tion for leave amend for an abuse of tions, appeal has little argument this Randolph discretion. Cada ex rel. v. Nor summary at the basis of record Co., Ry. & Western 290 F.3d folk judgment stage of the case. (7th Cir.2002). of its claim that never support ERISA, *6 employ § an Under 510 to restrict the Dewitts’ access to sought may discharge er participant not “a insurance, Proctor to its deci- points health beneficiary any exercising right for coverage Dewitt maintain her help sion to provisions he is entitled under the part-time to a schedule when she switched plan.” 29 benefit U.S.C. According summer of 2005. De- provision to dis 1140. This intended witt, however, a part-time switch to her courage employers discharging or ha con- contingent on Proctor schedule attempt in an rassing their medical benefits. we tinuing her Since using pension or prevent them from their favor, facts in Dewitt’s interpret must v. Oil medical benefits. Lindemann Mobil therefore assume Proctor Cir.1998). 290, 141 295 Corp., it regardless how re- well-aware request to maintain her sponded to To determine whether the district coverage, Dewitt would not have health rejected Dewitt’s amend properly court voluntarily. relinquished her benefits futile, we must determine whether ment her ERISA retaliation claim would survive Finally, argues firing Proctor De- summary goal judgment. for See accomplished not motion witt would it—freeing v. Min. & itself of Sound Music Co. Minnesota Dewitt attributes Cir.2007). Co., 910, 477 F.3d Anthony’s steep Mfg. De- bills-—since legitimate, If had a nondiscrimina post-termination CO- eligible witt was Dewitt, however, firing she would be tory reason argument, BRA insurance. This not then be able to important puzzle. out of luck. piece out an She leaves Ins. retaliation. Isbell v. Allstate if financial re- show Even Proctor shared some 788, Co., Be sponsibility for the continuation of bene- 418 F.3d however, cause, fits, money by Proctor elected save would nonetheless push apparent position that Dewitt was to be answered to decide the case—the insubordination, fired for Dewitt should ways alternative of establishing a prima have been allowed to amend her complaint facie case of discrimination and their suita- to include allegation of ERISA bility retalia- to the discrimination charged in this tion. case—and a third question difference —the between discrimination on grounds of ex- A jury reasonable could conclude that pense and discrimination grounds for- against Dewitt, retaliated and thus bidden federal regarding which committed violation, an ERISA when they law— discussion the majority opinion showed her 3, the door on August 2005. seems to me incomplete and potentially said, But that we note that Dewitt’s two misleading. claims, one under ADA and the other ERISA, under overlap, perhaps complete- The standard understanding is that ly. Both essentially present the same fac- there ways are two to make out a prima tual question why did Proctor fire De- — facie case of discrimination —which is to witt? If a jury find that Dewitt say, a showing in advance of trial sufficient was fired insubordination, not because to defeat the defendant’s motion for sum- her husband was costing the hospital a ton mary judgment. They are the “direct of money under its self-insured medical method” and the “indirect method,” the plan, that would be the end of the case. If latter being that of McDonnell Douglas the insubordination rejected defense is and Corp. Green, U.S. 93 S.Ct. the jury concludes that Anthony’s ex- 36 (1973); L.Ed.2d see, e.g., Timmons penses were the real motivating factor, v. General Motors Corp., 469 F.3d damages based on a discrimina- —whether (7th Cir.2006). The direct method tion claim under the ADA or a retaliation is the one that litigants would use if there claim under ERISA —would seem to be were no McDonnell Douglas test. The the same. that being With situation, plaintiff would marshal all his direct and remand, thought some given should be circumstantial evidence of discrimination to whether having two claims here instead (“direct” here meaning, as distinct from its of one does anything other than unduly *7 use in the phrase method,” “direct evi- complicate the proceedings. dence that is not which, in circumstantial' — reasons, For these we AffiRm the dis- a case, discrimination usually means ad- trict court’s grant of summary judgment to missions) and the defendant would do the Proctor on Dewitt’s age gender and dis- same with regard to evidence countering crimination claims. We Reverse both the an inference of discrimination. ques- The grant of summary judgment on the ADA tion would then be whether a reasonable association discrimination claim and the jury could infer discrimination if the rec- denial of Dewitt’s motion to amend her ord at trial were the same as the record on complaint. The case is Remanded to the summary judgment (except that some of district court for further proceedings. the evidence given in documentary in form summary the judgment proceedings would
POSNER, Circuit Judge, concurring. be given trial). in oral form at a If I agree with the decision and so, with most the defendant’s motion for summary of Judge Evans’s characteristically lucid judgment would be denied. That is the majority opinion. I write separately to basis the reversal of the dismissal of raise questions two that seem to me to be the claim of disability discrimination in this worth flagging although they do not have case.
951 evidence direct case has in discrimination a prima a establish used evidence indirect as the well would of discrimination method indirect the case under facie prima out a make required evi- evidence circumstantial of the part be often Douglas he under McDonnell method. case direct facie the under presented dence ap that either discrimination, to show for ex- not have does racial a case of other, from the had in taken isolation proach, a black fact that the ample, can com the and facie case—he prima one a white out by a makes replaced been Co., 511 Walgreen for the reason Simple the them.” mum bine was defendant (7th Cir.2007); Logan evidence of cf. be some F.3d 670-71 replacement America, of the element Another North Textron motivation. racial v. Kautex missing maybe Cir.2001); (7th Burns v. might be method indirect F.3d — a and qualifications Inc., had better AAF-McQuay, white the reported job Cir.1996). kind different slightly But that of command. chain a different
up that McDonnell assumed I have far So by some additional plugged could hole method appropriate an provides Douglas discrimination, statis- perhaps evidence case under facie establishing prima a defen- composition racial tics provision litigated “association” rarely pool of relation force in work dant’s Act, the Disabilities with Americans demonstration “Any potential workers. discrimination forbids provision judgment a support enough to strong individual because qualified “a re- if the favor plaintiffs disability of an individual the known proof does do, if the even will mains silent is known individual qualified whom Carson pigeonholes.” into a set of fit relationship or association.” a 157, 159 Corp., 82 F.3d Steel v. Bethlehem v. In- 12112(b)(4); Larimer see U.S.C. curiam). Cir.1996) (per Corp., 370 Machines Business ternational parties a mistake it was So explained As we F.3d 698 litigate toway think that case to slightly in a Larimer, repeated of estab two methods to address v. General in Timmons context different were in if each facie case as lishing prima 1127-28, F.3d at Corp., supra, Motors conse One compartment. own sealed Doug- the McDonnell to clone attempt lawyer the defendant’s quence case association for use test las failing error tactical damaging amade pri- to establish plaintiff would enable (even simple any evidence produce that the by showing merely case facie ma nondiscriminatory rea denial) of a sworn (a plaintiff knowing employer, (though he terminating plaintiff son meeting the sense *8 worker qualified evidence), the have such claims an associ- had expectations) employer’s to es had failed plaintiff the ground that the person, a disabled ation method by either case facie prima tablish employment adverse took other or plaintiff so, the but Maybe separately. taken him with replaced and him action of dis evidence other presented plaintiff employ- adverse (or take similar did silence the defendant’s besides crimination did not who someone against) action ment and that the plaintiff, it had fired why disabled with a a known association itself, silence, insufficient though in- Yet the 701-02. at 370 F.3d person. tactical another (at given least enough the facts scanty from these ference defendant, I discuss by the blunder ac- employer’s had induced association when facie case later) prima aout to make forcing justify weak too tion plaintiff “[W]hen balance. added 952 produce defendant to evidence that he would only to talk up at work his had taken the different, action for a relationship to a person; disabled such
innocent reason.
relationships are not uncommon.
people
Some
feel
do
distaste for associ
An employer’s most likely concern about
ating with a
person.
disabled
But
an employee who has a
relative,
disabled
(and
employer
employees
prejudices
whose
especially a spouse
child,
or
is that
the employer might
condone)
share or
are
relative’s
expenses
may be cov-
not being asked in an “association”
case
by
ered
the employer’s employee health
associate with a
person.
disabled
He is
plan. There is a positive correlation be-
not another employee,
a stranger
but
tween being disabled and having abnor-
the workplace with whom one of the em
mally high medical expenses, just as there
ployees happens to have a relationship.
positive
is a
correlation between
age
Prejudice against an employee who merely
an employee and his salary because most
has a relationship with a
person
disabled
regular
receive
raises
long
exists;
doubtless
pointed
as we
out in Lar
they perform satisfactorily. Suppose a
imer v. International Business Machines
company encounters rough waters and de-
Corp., supra, 370
699-700;
F.3d at
also
see
cides to
retrench
firing its
expen-
most
Tyndall v. National
Centers,
Education
sive employees. They are likely to be
Inc.,
(4th
209,
F.3d
31
214
Cir.1994), an
older on average than the employees who
employer might worry
plaintiff
retained,
are
but as
many
we said
years
would be distracted from his work by the
ago, and the Supreme Court confirmed in
disability of the person with whom he had
Paper
Hazen
Co. v. Biggins, 507
604,
U.S.
a relationship, might
think the disease
611-12, 113
1701,
S.Ct.
ee whose disability no is there bill—then
medical defendant if the It’s as
discrimination. the medical cap on placed simply
had incurred, cause whatever
expenses, for. reimburse it would So far a case. be such appears This America, STATES reveals, defendant UNITED record Plaintiff-Appellee, dis- her husband not because plaintiff expenses— but because abled v. had lower any have been not might not did to a condition ANDERSON, been due Defendant- they E. Gerald aof disabili- statutory definition meet Appellant. an amount defendant costing the
ty—were No. 06-2205. spend. unwilling to it was money that majority in the recited the evidence All Appeals, Court States United costs,” (“cutting costs concerns opinion Circuit. Seventh treat- Anthony’s medical cost “high etc.) albatross,” ment,” “financial 13, 2007. Sept. Argued nondisabling had who person 28, 2008. Feb. Decided equally incur. could condition indeed, to be appears cost was If only motive
case, the defendant’s of, the defendant complained
action disability discrimination. guilty
not Center, Anthony Medical v. St. Christian 1051,1052-53
Inc., 117 F.3d argument, made it has never
But however, a Since, proper. reversal
so a motion to file does
defendant all, 11 Moore’s at summary judgment 56.32[1], at Practice, pp.
Federal 56(b), ed.1997); (3d Fed.R.Civ.P. to 56-261 one file doesn’t does if he it, Smith arguments all his
include Cir.1994), 300, 305
Richert, argue able will be defendant