Levenstein v. Salafsky

• Decision Date: 11 July 2005
• Docket Number: No. 04-1306.,No. 03-3637.,No. 03-3653.,03-3637.,03-3653.,04-1306.
• Citation: 414 F.3d 767
• Parties: Joseph H. LEVENSTEIN, Plaintiff-Appellant, v. Bernard SALAFSKY, Patricia A. Gill, and David C. Broski, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

414 F.3d 767

Joseph H. LEVENSTEIN, Plaintiff-Appellant, v. Bernard SALAFSKY, Patricia A. Gill, and David C. Broski, Defendants-Appellees.

No. 03-3637.

No. 03-3653.

No. 04-1306.

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2004.

Decided July 11, 2005.

Richard R. Winter, Sarah E. Pace (argued), Holland & Knight, Chicago, IL, for Plaintiff-Appellant.

Carla J. Rozycki (argued), Jenner & Block, Chicago, IL, for Defendants-Appellees.

Before MANION, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

In this case, we reach the dénouement of the lawsuit that Dr. Joseph H. Levenstein has been pursuing against three officials of the medical school of the University of Illinois located in Rockford, Illinois. When the case was last before this court, we affirmed the district court's interlocutory ruling that the defendant university officials were not entitled to qualified immunity. Levenstein v. Salafsky, 164 F.3d 345 (7th Cir.1998) (Levenstein I). Eventually, the district court conducted a bench trial, after which it found that Levenstein had not shown that he had been constructively discharged, nor had he established an equal protection violation. The court accordingly entered judgment in favor of the defendants. This time it is Levenstein who is appealing. Although we have no trouble imagining how a trier of fact might have ruled in his favor, that is not the proper standard of review at this stage of the litigation. The district court's findings of fact were not clearly erroneous, nor do we find legal error in its opinion. We therefore affirm.

I

Levenstein joined the medical school faculty of the University of Illinois in Rockford in 1990, as a tenure-track professor, after a distinguished career in South Africa that we described in Levenstein I, 164 F.3d at 348. Before the events giving rise to this lawsuit, he served as the head of the Department of Family and Community Medicine (the Department), first for the Rockford campus, and later for all four University of Illinois campuses. He was granted tenure in 1992. In 1994. Dean Bernard Salafsky, one of the defendants and Levenstein's immediate supervisor, recommended Levenstein for a Faculty of the Year Award and nominated him for the Pugh Charitable Trust "Primary Care Achievement Award." In 1995, Levenstein became the chair of the University of Illinois College of Medicine Primary Care Institute.

Starting around the middle of 1994, however, two events began to unfold: first, Levenstein and Salafsky had a falling-out over the financing and management of the University's Medical Service Plan (MSP), which was a fund designed to cover varlous medical school operating expenses like faculty salaries and maintenance; second, in the spring of 1995, defendant Patricia A. Gill, the Deputy Chancellor of Affirmative Action Programs (AAP), received an anonymous letter from a medical student alleging that Levenstein had sexually harassed her. Levenstein saw the University's response to the sexual harassment complaint as a veiled effort to undermine his efforts to understand deficits in the budgets of the MSP and the Department and to expose financial mismanagement.

Briefly, the financial dispute began when Salafsky's office revealed in mid-1994 that the MSP might be facing a cumulative deficit of an amount significantly greater than its operational losses of approximately $280,000 in 1993 and $260,000 in 1994. Over Salafsky's objection, Levenstein led the formation of an executive committee to serve as a "watchdog" over Salafsky's administration. Later that year, Salafsky proposed the construction of a new specialty clinic to be called the East Side Clinic. Levenstein and the other watchdog committee members agreed that such a clinic would be desirable, but questioned whether the MSP could afford it and whether it could be justified from an educational standpoint. As time went on, Levenstein asked more and more questions about the $400,000 MSP deficit and the projected $500,000 departmental deficit, but Salafsky was unresponsive. On April 19, 1995, the two had a confrontation at an executive committee meeting. Dr. Frank Chmelik, Chair of the Rockford MSP, approached Salafsky in an effort to resolve the problem. Ominously, Salafsky told Chmelik that "there was a much larger problem than this that would become more obvious over the ensuing weeks."

Salafsky was referring to the anonymous harassment complaint, which Gill had received only two days earlier, on April 17. On April 27, Gill forwarded a copy of the letter to Levenstein and to Salafsky. She advised Levenstein that there would be no investigation unless the anonymous complainant came forward. On May 1, a physician at Rockford who had worked with Levenstein contacted Gill to report inappropriate conduct by Levenstein. She, too, did not reveal her identity to Gill until later, but she did pass along her complaint to her immediate supervisor. On May 8, two more similar complaints came in, this time from two of Levenstein's departmental support staff. Salafsky was told about the later complaints.

On May 11, Salafsky and the Associate Regional Dean, Dr. Donald Wortmann, met with Levenstein to discuss the sexual harassment complaints. They told him that if he did not resign effective 5:00 pm that day, he would be suspended with pay pending the outcome of an investigation. As of the time of that meeting, no formal complaints had yet been filed, although Salafsky knew both the identities of some of the complainants and that they wished to pursue formal charges. After hearing all of this, Levenstein telephoned Gill to confirm what had been happening. At the end of the day, Salafsky suspended Levenstein with pay as promised.

The next day, Salafsky called a meeting of the faculty at which he announced Levenstein's suspension and the circumstances that had prompted it. He said, inaccurately, that Gill had received four letters in the last month; in fact, she had received only the one anonymous letter. Formal letters were not long in coming, however. On May 17, the author of the anonymous letter came forward, wrote a new letter, and signed a formal complaint. The two support staff members did likewise, and on May 21, the three women filed a joint "Request for Action" form. With this in hand, Gill opened an investigation.

On May 24, Gill informed Levenstein about the specifics of the complaints and outlined the investigation process. He was permitted to respond in writing to the allegations, which he did, denying any sexually offensive conduct. Gill completed her investigation on July 23. She submitted a report concluding that Levenstein had violated the University's sexual harassment policy to her supervisor, the head of AAP. The supervisor agreed and made two recommendations in the alternative: either Levenstein should be restricted for three years from exercising authority over female subordinates, with the exception of restrictions on classroom instruction, lecturing, and patient treatment; or, if it was not possible to create an arrangement that permitted him to perform fully as a member of the faculty, he should be terminated.

Levenstein submitted an appeal from the AAP's findings and recommendations on August 9 to defendant David C. Broski, the Chancellor of the University. Broski assembled a three-person Faculty Appeal Panel with help from Gill to handle the appeal. The panel conducted its own investigation; it gave Levenstein the opportunity to comment on various witness statements and to make a final statement. Its report, issued on November 20, essentially agreed with Gill's initial conclusion that Levenstein had engaged in offensive conduct. It made no recommendations for corrective action, but it observed that the earlier recommendation was contradictory and could not be carried out.

On December 21, 1995, Broski recommended to the president of the University, James J. Stukel, that Levenstein's tenure should be reviewed "with the intent to revoke." Broski also advised President Stukel that Levenstein had been placed on paid leave pending the out-come of the investigatory proceedings. At the same time, Broski notified Levenstein that he was relieved of his duties as department head and that Broski had recommended to Stukel that dismissal proceedings be commenced.

Stukel accepted that recommendation on January 6, 1996, and concluded that Levenstein should remain suspended. He communicated this to Levenstein, described the dismissal procedure, and indicated that he would seek the advice of the Faculty Advisory Committee after he reviewed the relevant materials. On February 7, 1996, he asked for the Committee's recommendation whether tenure revocation proceedings should begin. He also ordered that Levenstein be given other duties, without changing his compensation (which had remained in place throughout this period). Charles Lane Rice, the Vice Dean of the College of Medicine, assigned Levenstein the menial task of reviewing and evaluating medical videotapes for content and accuracy.

In the meantime, Levenstein, frustrated by what he perceived to be the slow pace of the proceedings, bias on the part of decisionmakers, and the pretextual nature of the actions being taken against him, brought charges of academic misconduct against Salafsky and other administrators at the Rockford campus. The Faculty Advisory Committee advised President Stukel that they would take up the question of Levenstein's termination after they had assessed Levenstein's charges against Salafsky.

The Committee's result was partially favorable, partially unfavorable to Levenstein. Although it reported on April 15 that it found no merit in Levenstein's charges against Salafsky, the next day it recommended to Stukel that he should not pursue termination of Levenstein's tenure. Instead, the Committee thought, the less drastic measures of reassignment and rehabilitation were appropriate. In coming to this...