Gay v. Chicago Smile Group

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DR. ROBIN GAY, DR. MARIA )

ZALDUENDO, and DR. DAVID )

YUDKOWSKY, )

)

Plaintiffs, )

) No. 18 C 7389

v. )

) Judge Sara L. Ellis

CHICAGOLAND SMILE GROUP and )

DOWNTOWN DENTAL RIVER NORTH, )

LLC, )

)

Defendants. )

OPINION AND ORDER

Plaintiffs Dr. Robin Gay, Dr. Maria Zalduendo, and Dr. David Yudkowsky are dentists

over the age of forty who previously practiced at Defendant Downtown Dental River North

(“DDRN”), managed by Defendant Chicagoland Smile Group. Following the termination of

their employment at DDRN, Plaintiffs filed this action, claiming that Defendants discriminated

against them in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 621 et seq. DDRN acquired the practice that employed Plaintiffs in May 2017, and Plaintiffs

allege that the discrimination occurred thereafter. Gay and Zalduendo also claim that Defendants

breached their employment contracts and violated the Illinois Wage Payment and Collection Act

(“IWPCA”), 820 Ill. Comp. Stat. § 115/1 et seq. Gay and Zalduendo also seek an accounting.

Defendants have moved for summary judgment on Plaintiffs’ complaint and have also moved to

bar certain evidence of damages. Because Gay’s claims are untimely and Zalduendo and

Yudkowsky have not demonstrated a genuine issue of material fact as to whether their age

caused their terminations, the Court grants summary judgment to Defendants on Plaintiffs’

ADEA claims. The Court additionally grants summary judgment to Defendants on Gay and

Zalduendo’s breach of contract and IWPCA claims because they have failed to provide any

reasonable basis for the computation of their damages. Finally, the Court grants summary

judgment to Defendants on Gay and Zalduendo’s accounting claims because they have failed to

establish a genuine issue of material fact as to the elements of an accounting under Illinois law.

The Court denies Defendants’ motion to bar as moot.

BACKGROUND1

According to the complaint, prior to March 13, 2014, 3D Dental Services, Limited

(“Predecessor”) operated dental practices at various locations including at 676 N. Michigan

Avenue, Suite 3500, Chicago, Illinois (the “Practice”). On December 22, 1998, Yudkowsky

entered into an employment agreement to provide dental services at the Practice. Gay entered

into a contract with Predecessor to provide dental services at the Practice, as well as two other

locations, commencing July 1, 2015. On December 31, 2014, Zalduendo entered into a contract

to perform dental services at the Practice.

In May 2017, DDRN acquired the Practice from the Predecessor. DDRN based

Plaintiffs’ compensation on collected patient billings, so a number of variables affected

Plaintiffs’ compensation including, without limitation: (1) the number of patients each dentist

saw, (2) the lab costs of the services each dentist performed for each patient (with respect to Gay

and Zalduendo only); (3) the amount actually charged to the patient for the services each dentist

performed; and (4) the extent to which each patient and/or their insurer actually paid DDRN for

the services performed.

1 The Court derives the facts in this section from the Joint Statement of Undisputed Material Facts,

Plaintiffs’ Statement of Disputed Material Facts, and Defendants’ responses thereto. The Court considers

the statements and responses in Plaintiffs’ Statement to the extent appropriately presented, supported, and

relevant to resolution of the pending motion for summary judgment. All facts are taken in the light most

favorable to Plaintiffs, the non-movants.

I. Dr. Gay

Gay was fifty-eight years old when Plaintiffs filed their complaint. Prior to March 2,

2017, Gay was the highest producing dentist in the Practice. Following the takeover in May

2017, DDRN replaced Gay as clinical director with Roshan Parikh, one of Chicagoland Smile

Group’s founders, who was thirty-five or thirty-six years old at the time. Gay had twelve years

of experience as a clinical director and over 1,000 patients before DDRN removed her from that

position, which she had hoped to keep. On October 9, 2017, Gay submitted her written

resignation; the effective date of her resignation was November 8, 2017. That written

resignation notice does not state that she experienced age discrimination under Defendants. Gay

testified that her objective in sending the resignation letter was to transition out of the DDRN

practice.

In 2017, prior to her resignation, Gay worked at DDRN three days a week. Instead of a

fixed salary, DDRN compensated Gay under a formula that first subtracted lab costs for her

Invisalign cases from the gross amount DDRN collected from patients for services Gay

performed, then multiplied the resulting number by thirty-five percent, and finally subtracted half

of Gay’s lab costs for services (other than Invisalign) she performed. This formula did not

change in 2017.

When Gay submitted her resignation, she accepted an offer to work as the Dental

Director of Howard Brown Health Center (“Howard Brown”). At that time, she also intended to

accept another offer with a second employer and eventually accepted the position. Gay had been

applying for jobs outside of the Practice in February 2017, and perhaps as early as October 2016.

Gay started the dental program at Howard Brown and was the only employee at the inception of

that program. Additionally, Howard Brown had no dental patients at its inception. Pursuant to

her agreement with Howard Brown, Gay was to receive compensation at the rate of $100 per

hour until March 31, 2018. Beginning April 1, 2018, Gay earned an annual salary of $176,000.

On August 3, 2018, Gay filed an administrative charge of discrimination; October 7,

2017 was 300 days prior to the filing of her charge. Gay did not make any complaints of age

discrimination during her employment. In the charge, Gay alleged that DDRN discriminated

against her in violation of the ADEA. The allegations relate to events that occurred after DDRN

management took over the Practice on May 2, 2017. In the months following the takeover, there

were delays in DDRN’s issuance of bills to patients for services, which affected all DDRN

dentists. Specifically, Gay testified that after the takeover, her “collection plummeted” and the

number of patients that she saw was “greatly reduced.” Doc. 69-2, Gay Dep. 50:23–51:1. Gay

further testified that she was spoken to in a “rude, disrespectful way” between the takeover and

October 1, 2017. Doc. 69-2, Gay Dep. 74:4–23, 77:2–21. Gay cannot identify any patient that

should have been scheduled with her but was instead seen by a different DDRN dentist. Nor can

Gay identify any specific instance in October 2017 when a patient should have been scheduled

with her but was not. Gay did not witness anyone at DDRN make any age-related comments or

slurs directed to her, and she did not personally observe anyone make age-related comments or

slurs about anyone else during her employment with DDRN. Gay limited the scope of her

breach of contract, accounting, and IWPCA claims to the timeframe of May 2, 2017 and

thereafter.

II. Dr. Zalduendo

At the time that Plaintiffs filed the complaint, Zalduendo was fifty-nine years old. In

2017 and until her termination in 2018, Zalduendo worked for DDRN part-time, three or

occasionally four days a week. She wanted to continue to work that schedule at the time of her

termination. Zalduendo was not paid a fixed salary. Instead, DDRN based her compensation on

a formula calculated by taking thirty-two percent of net revenue collected from patients for

services she performed and subtracting fifty percent of lab costs for services she performed. This

formula did not change in 2017 or 2018.

In the final months of 2017, DDRN developed a business strategy for re-branding and

revamping the DDRN practice. A key component of that strategy was to employ dentists who

worked a full-time schedule, working every Monday through Friday, with the potential for

expanded weekday evening and Saturday hours. DDRN management believed that such a

strategy would improve the DDRN practice because appointments on nights and weekends might

better accommodate patients’ schedules. DDRN management did not think that Zalduendo

would be willing to work a full-time schedule, in which she worked every Monday through

Friday, with the potential for expanded weekday evening and Saturday hours. DDRN never

asked Zalduendo if she was willing to work a different schedule.

Another key component of DDRN’s re-branding strategy was to implement “same-day

dentistry” procedures. Several dentists at DDRN, including Zalduendo, historically had a

practice of conducting approximately ninety minute comprehensive examinations and

consultations with new patients as the patient’s first visit to DDRN. Such examinations

generally included x-rays and a thorough periodontal exam to create a treatment plan but did not

include a teeth cleaning. Patients would then be required to make a subsequent visit to DDRN in

order to, for instance, get their teeth cleaned, have a cavity filled, or begin treatment. Same-day

dentistry, however, involved a new patient receiving a teeth cleaning, cavity filling, or other

treatment that could be performed in the appointment window during the initial visit to the

practice. This avoided a patient scheduling and attending a second appointment for such

services. DDRN management believed that same-day dentistry was a better fit for patients’ busy

lives. DDRN management did not believe Zalduendo would be willing to consistently

implement same-day dentistry procedures.

On April 18, 2018, DDRN terminated Zalduendo because it “[had] undertaken a strategic

initiative to rebrand and relaunch Manus Northwestern Oral Health Center.” Doc. 69-16 at 1.

DDRN did not mention or refer to Zalduendo’s age when DDRN communicated that it was

terminating her employment. DDRN did not provide Zalduendo the contractually-mandated

notice upon her termination. On September 17, 2018, Zalduendo filed an administrative charge

of age discrimination; November 21, 2017 was 300 days prior to the filing of her charge.

Zalduendo did not personally observe anyone make any age-related comments or slurs to her or

about her or anyone else during her employment with DDRN. Zalduendo did not complain of

age discrimination during her employment. Zalduendo limited the scope of her breach of

contract, accounting, and IWPCA claims to the timeframe following the termination of her

employment. Zalduendo testified that she was compensated properly during her employment.

III. Dr. Yudkowsky

At the time that Plaintiffs filed the complaint, Yudkowsky was fifty-nine years old. He

worked for DDRN part-time, four days a week and wanted to continue working that schedule at

the time of his termination. Rather than paying Yudkowsky a fixed salary, DDRN compensated

him with thirty-one percent of net revenue collected from patients for services he provided. This

compensation formula did not change in 2017 or 2018. DDRN management never asked

Yudkowsky whether he would be willing to work a different schedule, although it believed that

he would not be willing to work full-time. DDRN management also did not think that

Yudkowsky would be willing to consistently implement same-day dentistry procedures.

Yudkowsky testified that DDRN management wanted him to stop conducting ninety minute new

patient consultations during the initial new patient visit and that DDRN management instead

wanted a hygienist to clean new patients’ teeth during their initial visit. Yudkowsky also

testified that he continued with the ninety minute new patient consultations that DDRN wanted

him to cease doing.

On April 18, 2018, DDRN terminated Yudkowsky because it “[had] undertaken a

strategic initiative to rebrand and relaunch Manus Northwestern Oral Health Center.” Doc. 69-

19 at 1. DDRN did not provide Yudkowsky the contractually-mandated notice upon his

termination. When DDRN terminated Yudkowsky’s employment, it did not mention or refer to

his age. Yudkowsky did not personally observe anyone make any age-related comments or slurs

about him or anyone else during his employment with DDRN. Yudkowsky also did not

complain of age discrimination during his employment. On September 21, 2018, Yudkowsky

filed an administrative charge of discrimination; November 25, 2017 was 300 days prior to the

filing of his charge.

IV. Potential Comparators

Gay identified Dr. Sharmi Shah as a purported comparator. Gay and Shah did not begin

working at DDRN at the same time. When DDRN hired Shah, her compensation formula was

not the same as Gay’s compensation formula. Shah’s compensation formula went into effect in

February 2017 and was not changed on May 2, 2017 or thereafter. Additionally, although she

did not perform Clinical Director duties at DDRN after May 2, 2017, Gay received monthly

Clinical Director compensation. Unlike Gay, Shah did not come to DDRN with an extensive

base of patients. Instead, DDRN hired Shah to treat the existing patient base.

Plaintiffs also identified Dr. Mary Grant and Dr. Lindsey Harbron as allegedly similarly

situated dentists under the age of 40. Both began working at DDRN in 2018; Harbron began in

March and Grant began in April. DDRN hired Grant and Harbron with the expectation that they

would work a full-time schedule, in which they worked every Monday through Friday, with the

potential for expanded weekday evening and Saturday hours. DDRN also expected that they

would consistently implement same-day dentistry procedures. Zalduendo and Yudkowsky do

not know the schedules that Grant and Harbron worked. Nor does Zalduendo know the

schedules that DDRN expected them to work. Gay was not employed at DDRN at the same time

as Grant or Harbron, never met them, and knows nothing about their compensation agreements.

DDRN compensated Grant pursuant to a formula calculated by taking thirty-two percent

of net revenue collected from patients for services she performed and subtracting fifty percent of

lab costs for services she performed. DDRN compensated Harbron under a similar formula,

calculated by taking thirty-three percent of net revenue collected from patients for services she

performed and subtracting fifty percent of lab costs for services she performed. Zalduendo has

no knowledge of any other DDRN dentist’s compensation, including Grant and Harbron.

On some occasions when DDRN allocated patients to Grant or Harbron, Yudkowsky and

Zalduendo did not have availability in their schedules to see those patients. Patient scheduling

can be affected by factors that include, but are not limited to, whether a dentist has an opening in

his or her schedule, how long a particular patient’s procedure or appointment is expected to take,

and the date and time when the patient would like to be seen. Unlike Yudkowsky and

Zalduendo, Grant and Harbron did not have existing patient loads when they began working at

DDRN. As such, DDRN allocated patients with the intention that the total daily patient loads of

Grant and Harbron would be similar to the other DDRN dentists’ daily patient loads. Zalduendo

and Yudkowsky do not know whether Grant and Harbron brought their own patients to DDRN

when they began work. Zalduendo also does not know the actual number of new patients

allocated to the DDRN dentists, nor does she know whether the volume of new patients to

DDRN was increasing, decreasing, or staying the same from October 2017 through April 2018.

Zalduendo does not know what other DDRN dentists’ patient loads were in the timeframe of

November 2017 to April 2018. Additionally, Zalduendo does not know exactly how her or

Yudkowsky’s respective patient loads compared to Grant’s and Harbron’s respective patient

loads; however, Zalduendo testified that she had no reason to disagree with the assertion that her

existing patient load was significantly larger than Grant’s patient load when Grant began at

DDRN. During the respective timeframes when the employment of Grant and Harbron

overlapped with the employment of Zalduendo and Yudkowsky, the respective total patient loads

Zalduendo and Yudkowsky each had were greater than the total patient loads that Grant and

Harbron each had.

LEGAL STANDARD

Summary judgment obviates the need for a trial where there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.

To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and

assess the proof as presented in depositions, answers to interrogatories, admissions, and

affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee’s notes. The party

seeking summary judgment bears the initial burden of proving that no genuine issue of material

fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving

party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to

identify specific material facts that demonstrate a genuine issue for trial. Id. at 324; Insolia v.

Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a bare contention that an issue

of fact exists does not create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th

Cir. 2000), the Court must construe all facts in a light most favorable to the non-moving party

and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

ANALYSIS

I. ADEA Claims

A. Statute of Limitations

The parties first dispute whether Plaintiffs’ ADEA claims are time-barred. To bring an

age discrimination claim, a plaintiff must file a charge with the EEOC within 300 days of the

alleged discriminatory act. See Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 890 (7th Cir. 2016)

(“ADEA claims must be filed within 300 days of the alleged discriminatory act or unlawful

practice.” (citing 29 U.S.C. § 626(d)(1)(B))); see also Flannery v. Recording Indus. Ass’n of

Am., 354 F.3d 632, 637 (7th Cir. 2004). Here, Gay filed her charge of discrimination on August

3, 2018, so any ADEA violation related to an incident that occurred before October 7, 2017 is

time-barred. Zalduendo filed a charge of discrimination on September 17, 2018, so any ADEA

violation related to an incident that occurred before November 21, 2017 is similarly time-barred.

Finally, Yudkowsky filed a charge of discrimination on September 21, 2018, thus, any ADEA

violation related to an incident that occurred before November 25, 2017 is time-barred.

Plaintiffs argue, however, that the continuing violation doctrine applies and the Court

should view the practice of “slowly stripping existing patients away from older doctors over

time” as one continuing violation. Doc. 72 at 9. The continuing violation doctrine allows a

plaintiff to “obtain relief for a time-barred act of discrimination by linking it with acts that fall

within the statutory limitations period.” Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396

(7th Cir. 1999); see also Dasgupta v. Univ. of Wis. Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir.

1997) (“A continuing violation is one that could not reasonably have been expected to be made

the subject of a lawsuit when it first occurred because its character as a violation did not become

clear until it was repeated during the limitations period.”). As an initial matter, for the doctrine

to apply, a plaintiff must identify acts of discrimination that occurred within the limitations

period. See Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 381 (7th Cir. 2000); see also

Benjamin v. Katten Muchin & Zavis, 10 F. App’x 346, 356 (7th Cir. 2001) (“The continuing

violation theory applies only if specific acts of discrimination occurred within the limitations

period.”).

Looking to Gay’s discrimination claims, Gay does not identify an act of discrimination

that occurred within the limitations period. Plaintiffs seek to connect Gay’s discrimination

claims to Yudkowsky and Zalduendo’s claims by arguing that the “practice of slowly stripping

existing patients away from older doctors over time must be taken as one continuing violation.”

Doc. 72 at 9. However, for the continuing violation doctrine to apply to Gay’s discrimination

claims, she must identify an act of discrimination within the limitations period specific to her,

rather than rely on acts of discrimination against Yudkowsky and Zalduendo. See Reed v.

Lawrence Chevrolet, Inc., 14 F. App’x 679, 684 (7th Cir. 2001) (“[T]he continuing violation

doctrine does not apply where a time-barred incident cannot be linked with a timely incident, or

where the time-barred incident alone should have triggered the plaintiff's awareness of his

rights.”). Instead, Plaintiffs’ opposition brief only states that Plaintiffs became aware of the

allegedly discriminatory conduct after they discussed the situation together, which is not specific.

Doc. 72 at 10. The complaint alleges that Defendants constructively discharged Gay on

November 8, 2017; however, Gay testified that she was constructively discharged in May 2017,

and Plaintiffs’ opposition brief makes no mention of the constructive discharge claim. Doc. 69-

2, Gay Dep. 178:17–19, 179:6–8. Plaintiffs also do not respond to Defendants’ detailed

argument that Gay’s constructive discharge claim fails on the merits, even if it was timely. Such

failure to respond results in waiver of the constructive discharge claim. See Bonte v. U.S. Bank,

N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument—as the [plaintiffs]

have done here—results in waiver.”). Accordingly, the continuing violation doctrine is

inapplicable to Gay’s claims. See Benjamin, 10 F. App’x at 356 (the plaintiff cannot invoke the

continuing violation doctrine because he failed to identify any act of discrimination within the

limitations period); see also Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002)

(“Requiring plaintiffs to identify a limitations period violation is necessary to enable courts to

distinguish an ongoing pattern of discrimination from non-actionable situations involving the

persisting effects of past discrimination.” (internal quotation marks omitted)), overruled on other

grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013). The Court finds that Gay’s claims

are time-barred in their entirety.

Alternatively, Yudkowsky and Zalduendo each identify an act within the limitations

period, indicating that the continuing violation doctrine could apply. The Seventh Circuit has

recognized three general instances in which the continuing violation theory applies. The first

type arises when the precise day of the violation is difficult to pinpoint because the employer’s

decision-making process occurred over a period of time. Place v. Abbott Labs., 215 F.3d 803,

808 (7th Cir. 2000). The second type stems from cases in which the employer has a systematic,

openly espoused policy that is allegedly discriminatory. See id. The third form of a continuing

violation arises when the employer’s discriminatory conduct is “so covert” that the

discriminatory character is not immediately apparent. Place, 215 F.3d at 808.

Here, Plaintiffs discuss the third form of continuing violation, so the Court focuses its

analysis accordingly.2 This theory applies to plaintiffs who only realize “with the benefit of

2 Plaintiffs briefly note that any form of the continuing violation theory applies; however, the first two

forms are inapplicable. First, Plaintiffs do not point to any facts suggesting that the relevant decision-

making process occurred over a period of time. Second, Plaintiffs have not alleged that there was an

openly discriminatory policy of firing members of a certain age group. Indeed, Plaintiffs contend that

Defendants never revealed “their plans to hire younger dentists and give them the older dentists’

patients.” Doc. 72 at 10. If Defendants never revealed their plan, then it cannot be said that there was an

openly espoused policy. See Jones v. Merchants Nat’l Bank & Tr. Co. of Indianapolis, 42 F.3d 1054,

1058 (7th Cir. 1994) (second type of continuing violation theory did not apply because the plaintiff did

not allege that the employer had “an explicit, clearly conveyed policy of discriminating against blacks in

promotion decisions”). At most, Plaintiffs assert that Shah told Zalduendo that Dr. Viren Patel admitted

he was firing older dentists and hiring younger dentists so DDRN could train them from the beginning

and said “out with the old, in with the new.” Doc. 71 ¶ 8. However, this statement is inadmissible

hearsay. Rather than offer Shah’s sworn testimony, Plaintiffs offer only Zalduendo’s statement repeating

what Shah heard from Patel. See MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 656

(7th Cir. 2011) (affirming district court’s finding that statement was inadmissible hearsay where the party

only offered testimony of its own employees repeating what the declarant told them instead of offering

the sworn testimony of the declarant). Plaintiffs also present the fact that Dr. Mathew Caruso overheard

Patel admit to Darcy Surinak, Director of Operations at DDRN, that he was firing older dentists and

replacing them with newer dentists as soon as possible; this is inadmissible hearsay for the same reason.

See Doc. 71 ¶ 8. There is no admissible evidence in the record that suggests an openly discriminatory

policy.

hindsight” that their employer discriminated against them. See id. However, if the plaintiff

“knows or with the exercise of reasonable diligence would have known after each act that it was

discriminatory and had harmed” her, the theory is inapplicable. Id. (quoting Moskowitz v.

Trustees of Purdue Univ., 5 F.3d 279, 281–82 (7th Cir. 1993)). Place explained that this theory

makes the most sense in a sexual harassment case, where the first offensive comment or

inappropriate conduct would not have alerted the employee to its harassing quality. See id.; see

also Rouse v. Chicago Transit Auth., No. 13-CV-5260, 2016 WL 5233591, at *9 (N.D. Ill. Sept.

21, 2016) (“[T]he precedent from this Circuit is not entirely clear concerning the continued

applicability [of the continuing violation doctrine] to employment discrimination claims (other

than hostile work environment claims).”).

Here, Plaintiffs contend that Defendants’ actions were covert because they “never

revealed to Plaintiffs their plans to hire younger dentists and give them the older dentists’

patients.” Doc. 72 at 10. It is not completely clear to the Court the frequency at which

Defendants reassigned Yudkowsky and Zalduendo’s patients to younger dentists. However, the

facts indicate that this occurred for about a year prior to their terminations. Defendants argue

that the doctrine is inapplicable because the compensation of Plaintiffs involved discrete acts.

The Court acknowledges that compensation has been found to constitute a discrete act. See

Hildebrandt v. Ill. Dep’t of Nat. Res., 347 F.3d 1014, 1028 (7th Cir. 2003) (the plaintiff’s

paychecks that included discriminatory pay was a “discrete discriminatory act, not subject to the

continuing violation doctrine”). However, here, Plaintiffs focus on the reassignment of patients

to younger dentists. Although there is perhaps an argument that Plaintiffs should have noticed

the reassignments negatively affecting their compensation when their “ability to earn their

historical income was cut in half,” Doc. 72 at 1, the Court finds that the doctrine may apply here.

Viewing the record in the light most favorable to Plaintiffs, there are facts to suggest that

Defendants’ transfer of patients from Plaintiffs and assignment of them to younger dentists was

so subtle that they did not recognize it as discrimination until their termination. Nonetheless, as

discussed further below, even if this doctrine applies, Plaintiffs’ claims fail on the merits.

B. Merits3

Yudkowsky and Zalduendo bring claims for discrimination under the ADEA. Plaintiffs

raise two related theories of discrimination. First, Plaintiffs contend that Defendants

discriminated against them because DDRN took patients that Plaintiffs normally would have

treated and assigned them to younger dentists that Defendants hired after acquiring the practice

and thereby reduced Plaintiffs’ compensation. Doc. 72 at 1. Second, Plaintiffs allege that

Defendants discriminated against them by terminating them.

“The ADEA protects workers 40 years of age and older from age-based employment

discrimination.” Wrolstad v. Cuna Mut. Ins. Soc’y, 911 F.3d 450, 454 (7th Cir. 2018). To

prevail on their age discrimination claims, Plaintiffs must show that but for their age, the

discrimination would not have occurred; “it’s not enough to show that age was a motivating

factor.” See id. Therefore, at the summary judgment stage, the inquiry is whether the evidence

would permit a reasonable factfinder to conclude that age caused the adverse employment action.

See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016). There are two methods by

which Plaintiffs may carry their burden. First, Plaintiffs may present direct or circumstantial

evidence that Defendants took the challenged job actions against them because of their age. See

Wrolstad, 911 F.3d at 454. Second, Plaintiffs may proceed under the McDonnell Douglas

burden-shifting framework “by producing evidence that a similarly situated person not in the

3 Because Gay’s claims are time-barred, the Court limits any reference to “Plaintiffs” within this section

to Yudkowsky and Zalduendo.

protected class was treated more favorably.” Id. If Plaintiffs carry their burden, the burden

shifts to Defendants to identify a legitimate, nondiscriminatory reason for the challenged action.

See id. The burden then returns to Plaintiffs to show that the stated reason was pretext for

discrimination. See id. Regardless of the method that Plaintiffs choose, “the basic question at

the summary-judgment stage is whether the evidence as a whole would allow a reasonable jury

to find that the plaintiff suffered an adverse job action because of his age.” Id.; see also Ortiz,

834 F.3d at 764.

Plaintiffs reference the McDonnell Douglas framework, so the Court will first address

that method. Under the McDonnell Douglas approach, Plaintiffs must show evidence that:

(1) they are members of a protected class; (2) they were meeting Defendants’ legitimate

expectations; (3) they suffered an adverse employment action; and (4) similarly situated

employees who were not members of their protected class were treated more favorably. See

McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 368 (7th Cir. 2019). First, Plaintiffs

are over the age of forty and are therefore members of the ADEA protected class. Second,

Plaintiffs contend that Defendants “had no issue with their performance as dentists” and there

was no evidence of poor performance. Doc. 72 at 11. But this is not the relevant inquiry;

instead, Plaintiffs must show that they were meeting Defendants’ legitimate expectations.

Plaintiffs suggest that there is an issue of material fact because Defendants assumed Plaintiffs

would be unwilling to adapt to Defendants’ changes. However, the evidence indicates that

Defendants implemented a revised policy for same-day dentistry procedures that Yudkowsky

refused to follow. Indeed, Yudkowsky testified that he continued to conduct the ninety minute

new patient consultations that DDRN wanted him to stop. Nonetheless, the Court proceeds to

the third and fourth factors.

An adverse employment action involves “a materially adverse change in the terms and

conditions of employment [that is] more disruptive than a mere inconvenience or an alteration of

job responsibilities.” Alamo v. Bliss, 864 F.3d 541, 552 (7th Cir. 2017) (quoting Stockett v.

Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000)). There are three general categories

of adverse employment actions: “(1) termination or reduction in compensation, fringe benefits,

or other financial terms of employment; (2) transfers or changes in job duties that cause an

employee’s skills to atrophy and reduce future career prospects; and (3) unbearable changes in

job conditions, such as a hostile work environment or conditions amounting to constructive

discharge.” Barton v. Zimmer, Inc., 662 F.3d 448, 453–454 (7th Cir. 2011). Yudkowsky and

Zalduendo undoubtedly suffered an adverse employment action when DDRN terminated them.

See, e.g., O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004). Although Plaintiffs do

not specifically identify DDRN’s alleged transfer of patients and the resulting decrease in

compensation as an adverse action, because much of their brief focuses on this action as

discriminatory, the Court evaluates whether it qualifies as a materially adverse action.

As discussed, a reduction in compensation is an adverse employment action. However,

Defendants argue that Plaintiffs’ compensation was not fixed but instead depended on a formula

that included amounts collected from patients. Defendants further contend that Plaintiffs did not

produce any evidence that shows their compensation should have remained constant during any

timeframe. Plaintiffs claim that DDRN took existing patients from them and gave them to

younger dentists, resulting in a decreased patient load and loss of income. Plaintiffs continue to

repeat these broad allegations throughout their opposition brief and response to Defendants’

motion to bar. See Doc. 72 at 11 (“The older dentists’ incomes were immediately adversely

affected as a result.”); id. at 12 (“[T]he evidence indicates that at the time they were fired, DDRN

wished to jettison Zalduendo and Yudkowsky because their younger replacements were already

hired and already treating Zalduendo and Yudkowsky’s patients.”); id. at 13 (“DDRN hired new

younger dentists; gave them Plaintiffs’ patients; and then summarily fired Zalduendo and

Yudkowsky.”); see also Doc. 70 ¶¶ 11, 26 (plaintiffs claim they were “prevented from treating

their usual and customary volume of patients” and “suffer[ed] a drastic loss of their opportunity

to earn income over time.” (emphasis omitted)). However, Plaintiffs point to nothing to

demonstrate that they saw fewer patients following the takeover. Nor do they point to anything

that demonstrates a reduction in compensation. In fact, Plaintiffs put forth no evidence as to how

their patient loads or compensation changed following DDRN’s takeover. At this stage,

Plaintiffs have the burden of demonstrating that there is a material issue of fact. Plaintiffs have

failed to satisfy this burden: they have not pointed to any evidence about their historic patient

loads, the change in patient load, or any other facts that would suggest that DDRN “took”

patients from them. Accordingly, the Court concludes that Yudkowsky and Zalduendo’s

terminations are the only actionable adverse actions, as those are the only adverse actions

identified by Plaintiffs and of which there is a triable issue of material fact.

Moreover, the final factor dooms Plaintiffs’ prima facie case because Plaintiffs have

failed to identify similarly situated employees. “Although similarly situated employees ‘need

not be identical in every conceivable way,’ they ‘must be directly comparable to the plaintiff in

all material respects.’” McDaniel, 940 F.3d at 368 (quoting Coleman v. Donahoe, 667 F.3d 835,

846 (7th Cir. 2012)) (internal quotation marks omitted)). “The purpose of the inquiry ‘is to

eliminate other possible explanatory variables, such as differing roles, performance histories, or

decision-making personnel, which helps isolate the critical independent variable—discriminatory

animus.’” Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 723 (7th Cir. 2018) (quoting Coleman,

667 F.3d at 846) (internal quotation marks omitted). Generally, a plaintiff must show that the

comparators dealt with the same supervisor, the employer subjected them to the same standards,

and the comparators engaged in similar conduct “without such differentiating or mitigating

circumstances as would distinguish their conduct or the employer’s treatment of them.” See

McDaniel, 940 F.3d at 368. Plaintiffs do not identify comparators in their brief. Their repeated

references to “all dentists” as being similarly situated does not create a triable issue of material

fact that there were comparators. See Doc. 72 at 14 (“[A]ll of the dentists were performing

identical services for patients.” (emphasis added)); id. (“All of the dentists, new or old, were

compensated in the same manner by a formula.”); id. (“[T]here is no actual salient distinction or

difference between the Plaintiffs and their replacements.”). And even if the Court looks to the

joint statement of undisputed facts, which identifies Grant and Harbron as comparators, there is

insufficient information. But see Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887,

898 (7th Cir. 2018) (court should not need to “dig through” the statement of facts for comparator

evidence). Although the Court assumes that Grant and Harbron had the same supervisor as

Plaintiffs and that DDRN subjected them to the same standards, Plaintiffs do not point to

anything to raise an issue of fact that the alleged comparators engaged in the same conduct as

Plaintiffs or had the same performance reviews. Under the McDonnell Douglas framework,

Plaintiffs have the burden to make a prima facie showing and they have not done so here. See

McDaniel, 940 F.3d at 369 (affirming summary judgment in part because the plaintiff’s

conclusory assertion that there was “evidence that he was treated less favorably than similarly

situated employees” was insufficient to raise an issue of fact); Skiba, 884 F.3d at 723 (plaintiff’s

comparator argument failed because he did not provide any detail about employees’

qualifications or employment history and instead just listed their names and positions); Johnson,

892 F.3d at 898 (plaintiffs did not satisfy comparator element where they offered no evidence

about who the comparator was and whether she had a similar disciplinary record and

performance reviews).

Plaintiffs’ claims do not fare better under the Ortiz holistic approach. Under Ortiz, the

Court assesses “whether the evidence would permit a reasonable factfinder to conclude” that

Plaintiffs’ age caused their termination.4 Ortiz, 834 F.3d at 765. Plaintiffs’ termination notices

indicate that Chicagoland Smile Group terminated them because it “[undertook] a strategic

initiative to rebrand and relaunch Manus Northwestern Oral Health Center.” Doc. 69-16 at 1;

Doc. 69-19 at 1. The record indicates that DDRN implemented new policies, including an

expanded schedule for dentists and same-day dentistry procedures. Both Plaintiffs worked a

reduced schedule and testified that they wanted to continue working that schedule at the time of

their termination. Additionally, Yudkowsky continued with the ninety minute new patient

consultations that DDRN requested him to stop doing. Plaintiffs argue that there is a triable

issue of material fact because DDRN never asked them whether they would be willing to work a

different schedule. Instead, Defendants contend that they “believed” Plaintiffs would be

unwilling to work full-time and consistently implement the same-day dentistry procedures. Doc.

69 ¶ 30, 36. However, the Court “do[es] not sit as a superpersonnel department that reexamines

an entity’s business decision and reviews the propriety of the decision.” Stewart v. Henderson,

207 F.3d 374, 378 (7th Cir. 2000); cf. id. (“The focus of a pretext inquiry is whether the

employer’s stated reason was honest, not whether it was accurate, wise, or well-considered.”).

Here, Defendants’ stated reason for Plaintiffs’ termination is clear: implementation of new

policies. Defendants’ reason for termination was honest; they believed, and the record suggests,

4 Again, the Court restricts its analysis to Plaintiffs’ termination because that is the only adverse

employment action that Plaintiffs identify with any specificity.

that Plaintiffs would not follow the new policies. Additionally, the record indicates that

Plaintiffs did not personally observe anyone make any age-related comments or slurs to them or

about them or anyone else during their employment with DDRN. In short, Plaintiffs’ belief that

they were terminated because of their age is insufficient. See Davis v. Ford Motor Co., 751 F.

App’x 949, 951 (7th Cir. 2019) (“[A]n unsubstantiated belief [that defendants discriminated] is

insufficient to overcome summary judgment.”). After considering all of the evidence, the Court

cannot conclude Plaintiffs’ age was the but for cause of their termination. Therefore, the Court

grants summary judgment to Defendants on Plaintiffs’ ADEA discrimination claims.

II. Breach of Contract and IWPCA Claims

Gay and Zalduendo bring breach of contract and IWPCA claims against Defendants for

failing to compensate them under their employment contracts. Although Yudkowsky did not

include any factual allegations suggesting that Defendants failed to give him the contractually-

related notice of termination in the complaint, in their opposition brief, Plaintiffs assert that

Defendants breached Yudkowsky’s contract by terminating him without notice. Yudkowsky

cannot amend the complaint to introduce new factual bases for liability at this stage. See Colbert

v. City of Chicago, 851 F.3d 649, 656 (7th Cir. 2017) (“[A] party may neither amend its

pleadings by argument in opposition to summary judgment nor introduce new theories of

liability in opposition to summary judgment.” (quoting Whitaker v. Milwaukee Cty., 772 F.3d

802, 808 (7th Cir. 2014))). Therefore, the Court only addresses these claims with respect to Gay

and Zalduendo and limits any reference to “Plaintiffs” in this section to them.

The IWPCA “provide[s] employees with a cause of action for the timely and complete

payment of earned wages or final compensation, without retaliation from employers.” Costello

v. BeavEx, Inc., 810 F.3d 1045, 1050 (7th Cir. 2016) (quoting Byung Moo Soh v. Target Mktg.

Sys., Inc., 353 Ill. App. 3d 126, 129 (2004)). The IWPCA defines “wage” narrowly as

“compensation owed an employee by an employer pursuant to an employment contract or

agreement between the 2 parties.” 820 Ill. Comp. Stat. 115/2. Therefore, to establish a claim

under the IWPCA, Plaintiffs must show that that Defendants owe them wages pursuant to their

employment contracts. See Enger v. Chicago Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir.

2016). Accordingly, Plaintiffs must show a breach of contract under Illinois law. See Barker v.

Quick Test, Inc., No. 13 C 4369, 2016 WL 1019708, at *11 (N.D. Ill. Mar. 15, 2016) (citing

Enger, 812 F.3d at 570).

For a breach of contract claim, a plaintiff must show: “(1) the existence of a valid and

enforceable contract; (2) performance by the plaintiff; (3) breach of contract by the defendant;

and (4) resultant injury to the plaintiff.” Hess v. Kanoski & Assocs., 668 F.3d 446, 452 (7th Cir.

2012). Here, Defendants dispute the third and fourth elements. Defendants contend that

Plaintiffs have produced no evidence that Defendants failed to properly compensate them.

Further, Defendants argue that there is no evidence that Plaintiffs suffered damages and Plaintiffs

cannot prove damages to a reasonable degree of certainty. The latter argument is also the focus

of Defendants’ motion to bar, so the Court concentrates on that here. In addition to establishing

that they sustained damages, Plaintiffs must “establish a reasonable basis for computation of

those damages.” TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 632 (7th Cir. 2007)

(citation omitted); Assaf v. Trinity Med. Ctr., 821 F.3d 847, 848 (7th Cir. 2016). Moreover,

“[t]he party claiming damage bears the burden of proving those damages to a reasonable degree

of certainty.” TAS, 491 F.3d at 632; see also Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d

506, 518 (7th Cir. 2011); Dowd & Dowd, Ltd. v. Gleason, 352 Ill. App. 3d 365, 383 (2004) (“A

plaintiff must prove damages to a reasonable degree of certainty, and evidence cannot be remote,

speculative, or uncertain.”).

Plaintiffs set forth their damages as follows. Gay seeks damages amounting to $516,000

and lists amounts in the following categories: lost wages in 2017 and 2018, interest on loan,

liquidated damages, and attorneys’ fees. Zalduendo seeks damages amounting to $193,962.08

and includes the same listed categories, as well as unpaid wages and interest for unpaid wages.

However, absent from these lists are any calculations as to how Plaintiffs arrived at these

amounts. Zalduendo does not specify the amount of wages that Defendants refused to pay. Gay

does not indicate the specific dates of lost wages, which she should be able to provide because

she seeks payment of monthly wages that she earned. Notably, the record indicates that Gay and

Zalduendo’s compensation was based on variables that included the number of patients each

dentist saw and the associated lab costs of services. Without more information about these

factors before and after Defendants’ takeover or any detailed computation as to lost wages,

Plaintiffs’ damages calculations are merely speculative.5 Plaintiffs also claim that Defendants

refused to pay them compensation that they earned. See Doc. 15 ¶¶ 51, 90, 94. But they do not

specify the dates they provided services, services rendered, or the amounts that Defendants

allegedly refused to pay. Additionally, Zalduendo testified that she was compensated

appropriately during her employment and limited the scope of her claims to the period following

her termination, see Doc. 69 ¶ 72, but the calculations do not include any details about this.

Accordingly, Plaintiffs have failed to provide any reasonable basis for the computation of their

damages and the Court grants summary judgment to Defendants on Plaintiffs’ breach of contract

5 Plaintiffs’ opposition brief focuses on the claim that Zalduendo is “entitled to collect compensation for

collected billings for a period of 60 days following the termination date.” Doc. 72 at 15.

and IWPCA claims.6 See Barker, 2016 WL 1019708, at *12 (granting summary judgment

because the plaintiff’s failure to specify the date, number, or amount of commissions that the

defendant allegedly refused to pay would not permit a reasonable jury to find that the plaintiff

provided a reasonable basis for computation of damages); cf. Merry Gentleman, LLC v. George

& Leona Prods., Inc., 799 F.3d 827, 828, 832 (7th Cir. 2015) (affirming summary judgment for

the defendant because the plaintiff failed to present a genuine issue of fact on damages theory

and explaining that reasonable trier of fact could not conclude that the plaintiff sustained $5.5

million in damages); DiPerna v. Chicago Sch. of Prof’l Psych., 893 F.3d 1001, 1006 n.6 (7th Cir.

2018) (“Damages are an essential element of a breach of contract action and a claimant’s failure

to prove damages entitles the defendant to judgment as a matter of law.” (quoting In re Ill. Bell

Tel. Link-Up II, 2013 IL App (1st) 113349, ¶ 19)).

The Court’s conclusion is reinforced by the fact that this Court previously ordered

Plaintiffs to provide all outstanding discovery responses. This included all “[a]mounts,

explanations, calculations—and supporting documents, if any—for the alleged damages for each

Plaintiff’s unpaid wage and breach of contract claims.” Doc. 52 at 2. Following that order, on

March 9, Plaintiffs represented to Defendants that Zalduendo was seeking lost income prior to

termination for a reduction in patients, as reflected in his tax returns and W2s. Doc. 63-12 at 2.

The email did not detail any amounts, explanations, or calculations. Plaintiffs now argue that

their mandatory initial discovery disclosures include damages calculations; however, those do

6 Additionally, Plaintiffs’ opposition brief does not even address Gay’s damages theory, so Plaintiffs

waived any argument that the Court should not grant summary judgment on her breach of contract and

IWPCA claims. See Domka v. Portage Cty., Wis., 523 F.3d 776, 783 (7th Cir. 2008) (“It is a well-settled

rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or

factual, why summary judgment should not be entered.”); Humphries v. CBOCS W., Inc., 474 F.3d 387,

407 (7th Cir. 2007), aff'd, 553 U.S. 442 (2008) (the plaintiff forfeited discrimination claim “by devoting

only a skeletal argument in response” to the defendant’s motion for summary judgment).

not include the information that this Court previously instructed Plaintiffs to provide. The cases

that Plaintiffs cite to support their argument that the initial disclosure provides sufficient

information about damages are not persuasive. Jabat v. Smith involved a challenge to the

damages award following trial and whether the evidence supported that award; that is not the

inquiry here. 201 F.3d 852, 857 (7th Cir. 2000). And Trustmark Insurance v. General and

Cologne Life Re of America involved the testimony of a damages and actuarial sciences expert,

as well as an actuarial model to calculate future damages. 424 F.3d 542, 552 (7th Cir. 2005).

Overall, Plaintiffs have provided no reasonable basis for the computation of damages, as

the case law and this Court’s order required. See Dunkin’ Donuts Inc. v. N.A.S.T., Inc., 428 F.

Supp. 2d 761, 772 (N.D. Ill. 2005) (granting judgment as a matter of law for the defendants

because the plaintiff was unwilling and unable to present competent and admissible evidence of

damages despite repeated demands to do so); see also Mission Measurement Corp. v. Blackbaud,

Inc., No. 16 C 6003, 2019 WL 4958236, at *3 (N.D. Ill. Oct. 8, 2019) (the court would dismiss

any alleged damages under Rule 37 because the plaintiff failed to disclose damages calculations

and did not show that its failure was harmless). The Court grants summary judgment for

Defendants on Zalduendo and Gay’s breach of contract and IWPCA claims.

III. Accounting

Finally, Defendants move for summary judgment on Gay and Zalduendo’s accounting

claims. Defendants argue that the accounting claims fail because they are based entirely on

alleged contracts and, if there was a breach, Plaintiffs would have an adequate remedy at law.

To prove a claim for an accounting, a plaintiff must establish that there is no adequate remedy at

law, as well as one of the following: “(1) a breach of a fiduciary relationship, (2) a need for

discovery, (3) fraud, or (4) the existence of mutual accounts which are of a complex nature.”

Kempner Mobile Elecs., Inc. v. Sw. Bell Mobile Sys., 428 F.3d 706, 715 (7th Cir. 2005) (citing

Mann v. Kemper Fin. Cos., 247 Ill. App. 3d 966 (1992)).

Plaintiffs do not respond to Defendants’ motion for summary judgment on these claims.7

Further, neither Gay nor Zalduendo provided facts to suggest that they are without an adequate

legal remedy. See Triple Canopy, Inc. v. Moore, No. 04 C 3265, 2005 WL 1629768, at *5 (N.D.

Ill. July 1, 2005) (“[T]o survive summary judgment, the Plaintiffs will need to show that the

legal remedy of a jury damages award is not a reasonable one before an equitable accounting

would be necessary.”). Moreover, Defendants’ motion suggests that discovery has occurred on

these claims, and Plaintiffs do not argue that discovery was inadequate. See Kozyrkov v.

Aculocity, LLC, No. 16 C 6961, 2017 WL 528385, at *7 (N.D. Ill. Feb. 9, 2017) (dismissing

accounting claim because discovery would reveal all of the accounting information pertinent to

the breach of contract claim); Gerace v. Andrews, 227 F. Supp. 3d 946, 953 (N.D. Ill. 2016) (if

plaintiff could obtain the information she sought through discovery, equitable accounting claim

would fail). Because Gay and Zalduendo have failed to establish a genuine issue of material fact

as to the elements of an accounting under Illinois law, the Court grants summary judgment for

Defendants. See Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir. 2014)

(“[S]ummary judgment is proper against ‘a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case and on which that party will

bear the burden of proof at trial.’” (citing Celotex, 477 U.S. at 322)).

7 Plaintiffs’ opposition brief only includes the following statement with respect to the accounting claims:

“Plaintiffs are seeking an accounting of all post-termination collections for work [Yudkowsky]

performed.” Doc. 72 at 15. However, similar to the breach of contract and IWPCA claims, the complaint

does not indicate that Yudkowsky seeks an accounting. As discussed, Yudkowsky cannot assert such a

claim at this stage.

CONCLUSION

For the foregoing reasons, the Court grants Defendants’ motion for summary judgment

[67] and enters judgment for Defendants on Plaintiffs’ complaint. The Court denies Defendants’

motion to bar [63] as moot. Civil case terminated.

Dated: December 3, 2020 ( Ne

SARA L. ELLIS

United States District Judge

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