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No. 94 C 2048
July 17 1997 Decided
For CARLOS CHAPA plaintiff: Michael Francis Lefkow Brendan Patrick Meyer Attorney at Law Chicago IL.
For JURA ADAMS M.D. individually and in her official capacity defendant: Neil P. Gantz Attorney at Law Chicago IL. For BRUCE FLETCHER individually and in his official capacity defendant: George Freeman Galland Jr. Miner Barnhill & Galland Chicago IL.
JAMES B. MORAN Senior Judge U.S. District Court
The Hon. Justice James B. Moran

Plaintiff Carlos Chapa has brought this suit against Rush-Presbyterian-St. Luke's Health Plans Inc. and Rush-Prudential Health Plans Inc. (Rush-Anchor) Mental Health for Prepaid Plans Inc. Dr. Jura Adams M.D. and Bruce Fletcher R.N. claiming illegal racial discrimination under 42 U.S.C. SEC. 1981 (Count I) and illegal discrimination on the basis of plaintiff's disabilities under 29 U.S.C. . 794 (Count III). Plaintiff has also sued Dr. Adams and Mr. Fletcher for tortuous interference with contractual relations (Count VIII) and Rush-Anchor for breach of contract (Count IX). *fn1 Defendants have moved for summary judgment and plaintiff has made a cross-motion for partial summary judgment as to Counts III VIII and XI. For the following reasons defendants' motion for summary judgment is granted as to Counts I III and VIII and is denied as to Count IX. Plaintiff's motion for partial summary judgment is denied.


Plaintiff Carlos Chapa is an American citizen of Mexican descent who was employed by Peoples Gas a public utility from January 26 1981 to April 3 1992. He progressed though several positions in that company until he was promoted to Senior Service Specialist I in 1987. In that position plaintiff performed a variety of duties including turning on gas for customers setting and removing meters and repairing gas leaks. The proper performance of these duties was critical to public safety because failures could result in fires explosions or asphyxiation from carbon monoxide.

Although Chapa received promotions over the course of his employment he also experienced a number of disciplinary problems. Over the years he received warnings regarding excessive absenteeism failure to follow company rules and involvement in a preventable automobile accident. These problems escalated in 1990 when Chapa received two disciplinary layoffs one for falsely reporting that he had located and repaired a leak and one for making a temporary leak repair without authorization. Finally Chapa was demoted in October 1990 for falsely reporting once again that he had located and repaired a gas leak. In the summer of 1991 he was given the opportunity to regain his former position by attending a one-week training school and taking a series of qualifying examinations. Chapa failed several of these exams and so he was not upgraded. Finally on October 8 1991 Chapa failed a random drug test (given pursuant to Department of Transportation regulations) because he had used cocaine and marijuana the night before the test. He had apparently been using marijuana on a regular basis since the early 1970s and had used cocaine with some frequency starting in 1987. He was also a "binge drinker and had injured himself in an alcohol-related car accident in 1987.

After failing the drug test plaintiff was told that he would be fired unless he entered a substance abuse rehabilitation program. Plaintiff signed a Conditions of Continued Employment agreement requiring him to observe all terms of the rehabilitation and aftercare program and stating: "Violation of any of these conditions will result in my discharge." After a further assessment plaintiff was referred to the substance abuse program at Rush-Anchor Health Maintenance Organization. He reported to this program on October 23 1991. Chapa completed the initial intensive day hospital portion of the program on November 15 of that year at which point he entered the after-care program. Upon entry into aftercare Chapa signed a Behavioral Contract for Outpatient Substance Abuse Treatment which required him to attend seven Narcotics Anonymous or Alcoholics Anonymous meetings per week to meet with a counselor (Donna Resnick Beers) once a week and to submit to random drug tests. These requirements remained in effect from November 22 1991 to January 22 1992. Chapa was slow in following Rush-Anchor's advice to obtain a sponsor to help him with his rehabilitation but otherwise he appears to have satisfied Rush-Anchor's expectations of him. Chapa obtained a temporary sponsor in January 1992 and was still in touch with him at the time of his deposition.

Chapa continued to participate in the aftercare program after January 22 1992 although there is no written contract setting forth his obligations during this period. Having completed the program's required 90 meetings in 90 days plaintiff believed that he was no longer required to continue attending N.A. and A.A. meetings. By his own admission plaintiff's participation in these meetings dropped off dramatically after January 22 and he started going to church and Bible study meetings instead. He missed some meetings with his counselor Donna Resnick -- some because she canceled them and some because he called in sick. On the occasions that Chapa called in sick Ms. Resnick was apparently never available to take his call; nor did she ever return any of his calls. Throughout this period plaintiff avoided all use of drugs and alcohol and considered himself substantially in compliance with the terms of the aftercare program. Although Ms. Resnick and Mr. Fletcher the program director continued to encourage him to go to meetings they gave him the impression that his progress in the program was satisfactory. *fn2 They never warned him that he was in danger of expulsion.

After completing the day hospital program in November 1991 plaintiff returned to his job at Peoples Gas. Throughout the treatment period he experienced depression and anxiety because of his precarious job situation and because he felt he would never regain his old position at Peoples Gas or obtain any other significant promotion. Chapa also felt that his supervisor was persecuting him and was responsible for many of his problems at work. As a result of this job-related stress Chapa began to exhibit symptoms of major depression stomach aches insomnia and unpredictable and uncontrollable crying fits. These symptoms got worse over time and on March 20 1992 Chapa called his supervisor and told him he was ill and could not come to work. Chapa stayed home for approximately two weeks although he did see a Rush-Anchor physician named Dr. Roerig twice during that time period. After the second visit Dr. Roerig referred Chapa to a psychiatrist named Dr. Jura Adams.

On April 2 1992 Chapa went to see Dr. Adams. The meeting lasted approximately half an hour to forty-five minutes. Over the course of the meeting Chapa gave Dr. Adams the basic outline of his current situation: his drug use his work problems and his feelings of anger and depression. He also gave her a personal history telling her that he had been in a gang as a young man that he had dealt drugs for a time and that he had "roughed some people up" when he was in the gang. In response to Chapa's statements about his work problems Dr. Adams asked him whether he harbored ill feelings toward anyone at Peoples Gas. He told her about his belief that his supervisor was persecuting him and said that he "wouldn't mind killing him sometimes." Chapa also told Dr. Adams I wouldn't personally hurt him, but I know people who would. Throughout the meeting Chapa gave Dr. Adams the impression that he was very angry.

Chapa's statements combined with his unstable emotional condition convinced Dr. Adams that Chapa was potentially homicidal and that his supervisor was in danger of imminent harm. Therefore Dr. Adams immediately contacted Bruce Fletcher the head of the Rush-Anchor drug rehabilitation program and told him of the situation. Fletcher contacted both the Chicago Police Department and Peoples Gas to warn them of the situation. Fletcher also told Peoples Gas that Rush-Anchor was separating Chapa from its drug rehabilitation program and wrote two letters confirming this fact. *fn3 In the meantime at the request of Peoples Gas Chapa was examined by another psychiatrist named Dr. Tuder. Dr. Tuder determined that Chapa was not homicidal and posed no threat to his supervisor and recommended that he be reinstated to the drug rehabilitation program and treated for his depression. Nonetheless Peoples Gas fired Chapa because his separation from the aftercare program violated the terms of his Conditions of Continued Employment agreement. Rush-Anchor refused to reinstate Chapa in the program and now states that he was removed both because of the implied threat he made to his supervisor and because of his non-compliance with the rehabilitation program.

After he was terminated Chapa's union filed a grievance against Peoples Gas which was decided in favor of Peoples Gas. Chapa then filed this lawsuit claiming that Rush-Anchor Rush-Presbyterian-St. Luke's Health Plans Inc. Mental Health for Prepaid Plans Inc. Bruce Fletcher and Dr. Jura Adams illegally discriminated against him on the basis of his race and his disability. *fn4 He also claims that Dr. Adams and Mr. Fletcher tortuously interfered with his contractual relationship with Peoples Gas and that Rush-Anchor violated its contractual obligation to provide him with adequate mental health treatment. Defendants move for summary judgment and plaintiff moves for partial summary judgment as to Counts III VIII and XI.


Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.56(c); Renovitch v. Kaufman 905 F.2d 1040 1044 (7th Cir.1990). We will make all reasonable factual inferences against summary judgment. See Adickes v. S.H. Kress & Co. 398 U.S. 144 157 26 L. Ed. 2d 142 90 S. Ct. 1598 (1970).

  1. Racial Discrimination (Count I)
Plaintiff has presented no direct evidence of racial discrimination and therefore can set forth a claim under 42 U.S.C. SEC. 1981 only if he can meet the standards set forth by the Supreme Court in McDonnell Douglas v. Green 411 U.S. 792 36 L. Ed. 2d 668 93 S. Ct. 1817 (1973). Under this analysis plaintiff must first establish a prima facie case of discrimination by showing (1) that he is a member of a protected class; (2) that he performed according to Rush-Anchor's legitimate expectations; (3) that he suffered an adverse action at Rush-Anchor's hands; and (4) that similarly situated individuals of other groups were treated more favorably. Bratton v. Roadway Package System Inc. 77 F.3d 168 176 (7thCir. 1996). If plaintiff establishes a prima facie case the burden then shifts to Rush-Anchor to show a legitimate non-discriminatory reason for taking action against him. Pilditch v. Board of Education 3 F.3d 1113 1116 (7th Cir.1993) cert. denied 510 U.S. 1116 127 L. Ed. 2d 385 114 S. Ct. 1065 (1994). Once Rush-Anchor has made such a showing the burden shifts back to Chapa to prove that the proffered reason is pre textual and that the action was really caused by racial discrimination. Id.

Chapa has failed to make a prima facie case of racial discrimination because he has presented no evidence that similarly situated individuals of other races were treated more favorably than he. Chapa himself has testified that while he was present in the program five people were dropped: two Caucasians and three African Americans. One of the Caucasians a woman was dropped from the program because her clothes and demeanor were distracting to the male participants. Although this anecdotal evidence is not sufficient in itself to show a lack of racial discrimination neither does it support plaintiff's claim. With no evidence that similarly situated patients from other ethnic groups were treated more favorably than he plaintiff cannot make out a prima facie case of racial discrimination. *fn5

Even if plaintiff had established a prima facie case defendants have given us at least one convincing non-discriminatory reason for separating plaintiff from the aftercare program: Chapa's statements to Dr. Adams regarding his desire to kill his foreman. The decision to terminate a person from a drug rehabilitation program for making such statements to a psychiatrist at a time of emotional crisis may be inappropriate but it is not racially discriminatory. *fn6 Nor does plaintiff argue that this reason is pre textual. In fact he has stated in his pleadings and depositions that he believes he was discharged from the program because of his statements to Dr. Adams. Because plaintiff has failed to present any evidence showing that he was treated differently than similarly situated white patients and because defendants have presented a non-discriminatory reason for discharging plaintiff we grant defendants' summary judgment motion as to Count I.

  1. Handicap Discrimination (Count III)
Plaintiff's next claim is that Dr. Adams Mr. Fletcher Rush-Anchor and Mental Health for Prepaid Plans discriminated against him on the basis of his disability in violation of the Rehabilitation Act 29 U.S.C. SEC. 794. The Act provides in relevant part:

No otherwise qualified individual with a disability ... shall solely by reason of her or his disability be excluded from the participation in be denied the benefits of or be subjected to discrimination under any program or activity receiving Federal financial assistance.

To establish a prima facie case under the Act plaintiff must show (1) that he qualifies as an "individual with a disability" under the Act; (2) that he is "otherwise qualified" to participate in the drug rehabilitation program; (3) that he was subjected to discrimination solely by reason of...his disability; and (4) that the rehabilitation program receives federal financial assistance. Grzan v. Charter Hospital of Northwest Indiana 104 F.3d 116 119 (7th Cir.1997).

As an initial matter we note that regardless of the merit of Chapa's Rehabilitation Act claim he cannot pursue it against either Bruce Fletcher or Dr. Adams. Although the Rush-Anchor program itself may receive federal funds and thus be subject to suit under the Act employees and independent contractors such as Fletcher and Adams are not. The Seventh Circuit has recently made this point very clearly: "Employees of the recipients of federal financial assistance are not in themselves the recipients of such assistance." Grzan 104 F.3d at 120 (dismissing Rehabilitation Act claim against employee of hospital). Therefore even were we to find that Chapa had established a prima facie case against Rush-Anchor we would dismiss the claim against Mr. Fletcher and Dr. Adams.

But Chapa has not made a prima facie Rehabilitation Act claim against Rush-Anchor or any other defendant. We noted in our order of August 5 1996 that "it is difficult to contend that prior addiction is the reason for termination from an addiction aftercare treatment program unless the program wanted to self-destruct." The Seventh Circuit has recently made this point even more emphatically. In Grzan v. Charter Hospital of Northwest Indiana 104 F.3d at 121-122 the Seventh Circuit found that a former psychiatric patient could not bring a Rehabilitation Act claim against the hospital that treated her because the Act "is ill suited for bringing claims of discriminatory medical treatment against a facility when the plaintiff is comparing her treatment (medical or non-medical) to the treatment afforded other handicapped individuals." More specifically the court found that the plaintiff could not establish that she was otherwise qualified for the treatment program since her disability was the very thing that qualified her for admission to the hospital: "'An otherwise qualified person is one who is able to meet all of a program's requirements in spite of [her] handicap.'" Id. at 120 (quoting Southeastern Community College v. Davis 442 U.S. 397 406 60 L. Ed. 2d 980 99 S. Ct. 2361 (1979)). The court further found that Grzan could not establish that she had been discriminated against solely by reason of her handicap. "'The word solely provides the key: the discrimination must come from the handicap and the handicap alone. If others with the same handicap do not suffer the discrimination then the discrimination does not result 'solely by reason of the handi-cap.'" Id. (quoting Johnson by Johnson v. Thompson 971 F.2d 1487 1493 (10th Cir. 1992) cert. denied 507 U.S. 910 122 L. Ed. 2d 654 113 S. Ct. 1255 (1993)). In short the court found that the plain meaning of the Act "all but excludes claims for disparate medical treatment among similarly handicapped persons 104 F.3d at 122, and that this exclusion reflects Congress' intent that the Act not be used to create a federal malpractice tort remedy." Id. at 123.

Like Grzan Chapa's handicap--drug addiction--is the very thing that qualified him for the Rush-Anchor program in the first place. All of the other patients at Rush-Anchor had the same handicap; without it they would not be admitted. Chapa cannot credibly claim that his drug addiction was the reason he was terminated from the rehabilitation program when the many people who successfully completed the program all possessed the very same handicap.

In fact plaintiff's Rehabilitation Act claim is a dressed-up medical malpractice claim. He has submitted affidavits from several psychiatrists expressing their disapproval of Dr. Adams' diagnosis of Chapa. One of these psychiatrists a Dr. Elkun has couched his disapproval in a diagnosis of his own: Not only was Dr. Adams' determination that Chapa was homicidal mistaken; the misdiagnosis itself shows that Dr. Adams suffered a "potent counter-transference reaction" to Chapa because of his disability and his past experience as a gang member. In other words Dr. Adams found Chapa to be homicidal because of her subconscious bias against drug addicts with criminal histories. It is not clear how Dr. Elkun's medical training gave him the power not only to criticize the medical practices of other doctors but also to make long-distance diagnoses of their personality disorders. But even if we presumed that Elkun could see directly into Dr. Adams' mind his criticism of her treatment of Chapa would still amount to a claim of medical malpractice. Dr. Elkun argues essentially that Dr. Adams' "counter-transference" caused her to give the wrong weight to the various factors she used in making her diagnosis and thus she made a mistake. But he does not argue that this counter-transference was caused solely by plaintiff's disability. Rather he says that she reacts to people whom "she perceives as having either problems with recurrent substance abuse or carrying a diagnosis of antisocial/criminal personality disorder or being involved in 'gang-life' at one point in their lives." In short Dr. Adams reacts to people who have all the negative qualities including a history of drug abuse that were revealed in plaintiff's interview with her. But a Rehabilitation Act claim can only be established if the discrimination is based solely on the plaintiff's disability. Dr. Adams has treated many drug addicts without finding them to be homicidal. Therefore we must conclude that even if Dr. Adams is as maladjusted as Dr. Elkun claims she did not violate the Act.

  1. Tortious Interference with Contractual Relations (Count VIII)
Plaintiff's next claim is that Dr. Adams and Mr. Fletcher tortuously interfered with his employment relationship with Peoples Gas in two ways. First they wrongfully notified Peoples Gas of Chapa's alleged threat to his supervisor thus breaching the confidentiality of the doctor-patient relationship and undermining Chapa's position at Peoples Gas. Secondly they terminated Chapa from the aftercare program and thereby caused him to lose his job. For these two actions Chapa argues both Fletcher and Adams should be held liable for tortuous interference with contractual relations.

Neither Fletcher nor Adams can be held liable for transmitting Chapa's statements to his employer and to the police. Under Illinois law a therapist is permitted to disclose confidential patient communications "when and to the extent in the therapist's sole discretion disclosure is necessary to warn or protect a specific individual against whom a recipient has made a specific threat of violence where there exists a therapist-recipient relationship." 740 ILCS 110/11. Both the therapist and any individual or institution that aids her is immune from civil liability arising from such disclosure if made in good faith. Id. Good faith is presumed under the statute. Id.

Chapa does not argue that Adams' and Fletcher's disclosure of his statements is not covered by the Illinois immunity statute. Rather he argues that this statute is preempted by 42 U.S.C. SEC. 290dd-2 and its accompanying regulations which require that all patient records in substance abuse programs receiving federal assistance be kept confidential (with certain limited exceptions). This argument fails for several reasons. First Chapa's visit to Dr. Adams does not appear to have been related to his participation in the drug rehabilitation program. Chapa was referred to Dr. Adams by a Rush-Anchor physician not by an employee of Rush-Anchor's drug rehabilitation program. Dr. Adams met with Chapa to treat him for his depression not for his drug addiction. The statute's accompanying regulations state that where the drug rehabilitation program is part of a general medical facility the term "program" only applies to that unit and those personnel whose primary function is to provide treatment for substance abuse. 42 C.F.R. SEC. 2.12. The term does not cover personnel who treat a patient for depression even though that patient also participates in a drug rehabilitation program run by the same medical facility.

Secondly even if Chapa's visit to Dr. Adams were considered part of the drug rehabilitation program the information conveyed by Adams and Fletcher is not protected by 42 U.S.C. SEC. 290dd-2. Congress enacted 42 U.S.C. SEC. 290dd-2 as part of a broader statutory scheme for coordinating federal drug and alcohol policy. The confidentiality provisions are intended to prevent disclosures that would identify persons as patients of substance abuse programs lest the threat of such disclosures deter people from seeking treatment for these problems. Thus the statute's accompanying regulations state that restrictions on disclosure apply only to information that would "identify a patient as an alcohol or drug abuser either directly by reference to other publicly available information or through verification of such an identification by another person." 42 C.F.R. SEC. 2.12(i). The information given by Adams to Fletcher and by Fletcher to Peoples Gas and the police does not identify Chapa as a substance abuser. It identifies him as a possibly homicidal psychiatric patient - and this is what he is upset about. But the statute is not intended to protect drug rehabilitation patients from all kinds of damaging information; only from information that reveals their status as drug rehabilitation patients. Therefore the statute is inapplicable.

Finally even if the statute were applicable it would not preempt the Illinois immunity statute. The Sixth Circuit has recently held that there is no private right of action under 42 U.S.C. SEC. 290dd-2. Ellison v. Cocke County Tennessee et al. 63 F.3d 467 (6th Cir. 1995). The court found that Congress intended to deter forbidden disclosures but not to create new federal confidentiality rights. Thus violations of the statute can result in criminal penalties but not in private lawsuits. Were we to find that SEC. 290dd-2 preempted state immunity statutes the effect would be the same as if we allowed a private action directly under the statute. In either case the patient would be given new substantive confidentiality rights. Just as SEC. 290dd-2 does not create a private right of action it does not override state immunity statutes in the context of civil liability. Chapa cannot recover for any injury resulting from the disclosure of his statements to Dr. Adams.

Nor does the decision to terminate Chapa from the rehabilitation program amount to tortuous interference with contractual relations. To establish a tortuous interference claim under Illinois law the plaintiff must show (1) the existence of a valid and enforceable contract between the plaintiff and a third party; (2) the defendant's awareness of the contractual relation; (3) the defendant's intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the third party caused by the defendant's wrongful conduct; and (5) damages. HPI Health Care Services Inc. v. Mt. Vernon Hospital Inc. 131 Ill. 2d 145 154-55 545 N.E.2d 672 137 Ill. Dec. 19 (1989) (citations omitted). The element of inducement which is essential to the establishment of a tortuous interference claim requires more than the knowledge that one's conduct is substantially certain to result in one party breaking its contract with another. R.E. Davis Chemical Corp. v. Diasonics Inc. 826 F.2d 678 687 (7th Cir. 1987) modified on other grounds 924 F.2d 709 (7th Cir. 1991). Rather this element "requires some active persuasion encouragement or inciting that goes beyond merely providing information in a passive way." In re Estate of Albergo v. Hull 275 Ill. App. 3d 439 656 N.E.2d 97 103 211 Ill. Dec. 905 (2d Dist. 1995) (citations omitted).

Plaintiff has not made any showing that either Fletcher or Adams induced Peoples Gas to break its contract with him. Although Fletcher as head of the Rush-Anchor rehabilitation program knew that terminating Chapa from the program could lead to his dismissal nothing in the record indicates that Fletcher desired this result or that he acted to encourage it. There is even less in the record to implicate Dr. Adams. All she did was notify Fletcher that Chapa had made threatening statements about his supervisor. She had nothing to do with the decision to terminate Chapa from the rehabilitation program and never had any direct contact with Peoples Gas. Because Chapa cannot establish the requisite element of inducement his tortuous interference claim fails. We grant summary judgment as to Count VIII.

  1. Breach of Contract (Count IX)
Finally plaintiff argues that he is the third party beneficiary to the medical coverage contract between Peoples Gas and Rush-Anchor and that Rush-Anchor violated the contract by wrongfully expelling him from its drug rehabilitation program for health reasons. This claim may not be wholly without merit. As the Illinois Supreme Court has stated The rule is settled in this state that, if a contract be entered into for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. People ex rel. Resnik v. Curtis & Davis Architects & Planners Inc. 78 Ill. 2d 381 400 N.E.2d 918 919 36 Ill. Dec. 338 (Ill. 1980) (quoting Carson Pirie Scott & Co. v. Parrett 346 Ill. 252 178 N.E. 498 501 (Ill. 1931)). On its face the contract between Rush-Anchor and Peoples Gas appears intended to benefit Peoples Gas employees directly. The contract requires Rush-Anchor to provide medical services directly to Peoples Gas employees and limits the circumstances under which their coverage can be terminated. Such an agreement would appear to be a classic example of a contract creating a third party beneficiary. See Sosin v. Hayes 258 Ill. App. 3d 949 630 N.E.2d 969 196 Ill. Dec. 804 (Ill.App. 1st Dist. 1994) (covered dependent of signatory to health insurance contract was a third party beneficiary of the contract). The Illinois Supreme Court has also cautioned us however that because the status of third party beneficiaries is determined by the intention of the parties we must examine all of the contract and the circumstances surrounding the parties at the time of its execution. People ex rel. Resnick 400 N.E.2d at 991; see also Vidimos Inc. v. Laser Lab Ltd. 99 F.3d 217 219 (7th Cir.1996) ("Contracts often benefit persons besides the signatories and a breach harms them. To allow all these injured beneficiaries to sue would expose contract promissory to enormous potential liabilities.") The parties have paid relatively little attention to the question of Chapa's status as a third party beneficiary. For this reason we cannot resolve this question at this time.

Assuming Chapa establishes his status as a third party beneficiary he may be able to make a claim for breach of contract. From the record before us it appears possible that Rush-Anchor terminated Chapa from its rehabilitation program because of his health that is because his session with Dr. Adams revealed that Chapa had severe emotional problems that Bruce Fletcher simply did not want to confront (see fn.2). If this is the case Rush-Anchor may have violated the contractual provision in which it promises not to terminate the HMO coverage of any covered individual because of "the health status of the covered individual." *fn7 Because the reason for terminating Chapa from the rehabilitation plan continues to be a disputed issue of material fact we cannot grant summary judgment to either party at this time.

We are also prevented from resolving this claim because Rush-Anchor has raised a new issue that needs further exploration. In its final reply brief Rush-Anchor argued almost in passing that this contract action is precluded by ERISA which covers employee health benefit packages like the one at issue here. Neither party has fully stated its position as to the impact ERISA should have on the resolution of this claim. We will need a fuller briefing of this issue before we can resolve the case.


For the foregoing reasons defendants' motion for summary judgment is granted as to Counts I III and VIII and is denied as to Count XI. Plaintiff's motion for partial summary judgment is denied.


Senior Judge U.S. District Court


*fn1 Counts II IV V VI and VII were deleted pursuant to our order of August 5 1996 denying plaintiff leave to add them to the complaint.

*fn2 Chapa's level of compliance with program requirements after January 22 1992 is very difficult to determine. Rush-Anchor did not ask Chapa to sign a contract stating its expectations of him during this period. Chapa has repeatedly testified that his attendance at N.A. and A.A. meetings etc. was no longer required after the initial 90-day period expired. Bruce Fletcher and Donna Resnick Beers have testified otherwise. Our attempt to untangle this conflict is made more difficult by the fact that there are no contemporaneous records of Chapa's progress in the rehabilitation program. Bruce Fletcher has submitted a series of notes purporting to describe Chapa's increasing noncompliance with the rehabilitation program. Fletcher has admitted however that he made all of these notes after Chapa had been dismissed from the program. Fletcher claims that he transcribed the notes from the "anecdotal notes" made by Donna Resnick Beers over the course of her dealings with Chapa. These original notes no longer exist however. Thus it is impossible to determine to what extent the secondhand after-the-fact notes submitted by Fletcher reflect Chapa's actual progress and to what extent they constitute a pre textual justification for his dismissal. Rush-Anchor's rather casual approach to record keeping may have created a disputed issue of material fact.

*fn3 Fletcher apparently signed Dr. Adams' name to these letters without Dr. Adams' direct authorization. The letters do accurately reflect Dr. Adams' statement to Fletcher that she no longer considered Chapa to be under her care. They are misleading however insofar as they indicate that Dr. Adams decided to separate Chapa from the aftercare program. This decision was made by Bruce Fletcher.

*fn4 Chapa also named Peoples Gas as a defendant in his original suit but has since settled his claim against that defendant.

*fn5 Plaintiff has asked us to reconsider our order of August 5 1996 denying plaintiff's last-minute motion to compel defendants to produce additional discovery materials relevant to their treatment of patients of various racial groupings. Plaintiff has not presented any strong reason to revisit that order and we decline to do so.

*fn6 Defendants claim that Chapa was also terminated from the program for "regular non-compliance but as we have noted above, the evidence currently before us makes it appear that this reason may possibly be pre textual.

*fn7 The meaning of this passage is somewhat in dispute. Defendant argues that as long as it continued to provide general HMO coverage to Chapa it did not breach the agreement even if it terminated him from the rehabilitation program for health reasons. Such a narrow reading of the provision is neither necessary nor desirable. Were we to adopt it Rush-Anchor could expel the more difficult to treat cancer patients from its oncology program without breaching its contract so long as it did not exclude them from other kinds of health coverage.