The Indiana Lawyer Daily reported on this case earlier in the month under the headline Circuit Court finds no age discrimination. The article does a a good job of explaining why there was no case under the federal ADEA.
"In Laverne Tubergen v. St. Vincent Hospital and Health Care Center, Inc., No. 06-4304, Dr. Tubergen filed a discrimination complaint against St. Vincent under the Age Discrimination in Employment Act of 1967. In an effort to streamline its operations and become more efficient, the hospital hired James Houser as its chief operating officer. Before restructuring, St. Vincent had a 'service line' for each of the nine medical specialties it provided, and each service line was run by a medical director, who was a physician, and an executive director that was a nurse."
The 7th Circuit affirmed the District Court's decision, finding Tubergen provided insufficient evidence to back his age discrimination claim. Tubergen argued Houser's alleged comments about "the old guard" could give rise to a reasonable inference of age discrimination. The record showed the co-worker who overheard the comment noted it was in reference to the children's hospital, where Tubergen did not work. Also, it is possible to not take the reference of "the old guard" to literally mean "old" people, and it's more likely in line with getting rid of the previous structure, not individuals, as Houser explained he meant it in his desposition, wrote Judge Joel Flaum.
The record showed Tubergen was considered for other positions; however, he was not a qualified candidate. Tubergen also made no effort to apply for other jobs within the hospital, wrote Judge Flaum.
In addition, those who remained with the hospital after the restructuring varied in age, and the ages of the more than 300 people whose positions were eliminated also varied.