Selan v. Kiley
| Decision Date | 04 August 1992 |
| Docket Number | No. 90-3623,90-3623 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 775, 59 Empl. Prac. Dec. P 41,664 Kate T. SELAN, Plaintiff-Appellant, v. Ann KILEY, Illinois Department of Mental Health, Illinois State Psychiatric Institute, and Ronald Davidson, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gerald A. Goldman, Arthur R. Ehrlich (argued), Goldman & Marcus, Chicago, Ill., for plaintiff-appellant.
Paula Giroux, Asst. Atty. Gen., Ann Plunkett Sheldon, Daniel N. Malato, Asst. Atty. Gen. (argued), Office of Atty. Gen., Civil Appeals Div., Chicago, Ill., for defendants-appellees.
Before CUMMINGS and RIPPLE, Circuit Judges, and CRABB, District Judge. *
Plaintiff-appellant Kate Selan filed this employment discrimination suit against her employer, the Illinois Department of Mental Health, her place of employment, the Illinois State Psychiatric Institute, and two of her supervisors. Ms. Selan alleged that the defendants had discriminated against her on the basis of age, retaliated against her for testifying in a co-worker's racial discrimination suit, denied her right to enforce grievance provisions of her employment contract, and breached her employment contract. The district court granted the defendants partial summary judgment; the court found that some of the claims were time-barred and others were premature. The remaining claims were tried before the bench, and the court found in favor of the defendants. Ms. Selan appeals, and we affirm.
On August 4, 1976, Kate Selan, a certified social worker with a masters degree in social work, began working for the Illinois Department of Mental Health (IDMH) as one of five unit chiefs at the Read Henry Horner Children's Center (Horner), in Chicago. Ronald Davidson, Ph.D., was the director at Horner from January or March 1985 through February 1986. At all relevant times, Ann Kiley was director of the IDMH. On May 31, 1985, when Ms. Selan was fifty-nine years old, the IDMH transferred her to the Illinois State Psychiatric Institute (the Institute), also in Chicago, where she assumed a lower-rank position but maintained the same salary and benefits she enjoyed at Horner. The position she had held at Horner was filled by two younger employees: Arthur Bloch, M.D., who was thirty-six years old at the time of Ms. Selan's transfer, and Lois McCarthy, a certified social worker, who was also thirty-six when Ms. Selan was transferred. In February 1986, Dr. Davidson also transferred from Horner to the Institute and became its associate director.
On June 16, 1986, Ms. Selan received a written reprimand from Jim Guidi, her direct supervisor at the Institute, for unprofessional conduct and use of abusive language toward a supervisor. On August 29, 1986, Ms. Selan received a written reprimand for nonfeasance and poor work performance from Susan Nowak, M.D., her unit director. In late 1986 or early 1987, Ms. Selan testified on behalf of a fellow employee, Chester Riley, who alleged that he had been discriminated against on the basis of his race. On May 30, 1987, Ms. Selan received a three-day suspension for "nonfeasance and failure to follow established procedures." Joint Statement of Uncontested Facts, (R.49) at 7. On November 2, 1987, Ms. Selan received a ten-day suspension for "harassment and verbal abuse of subordinates; failure to follow unit policies, and verbal threats and intimidation of co-workers." Id.
While she was employed at the Institute, Ms. Selan performed several functions, including clinical supervision of other social workers, administrative supervision of other social workers, 1 and individual psychotherapy of adolescent clients. In late 1985, then associate unit chief James Guidi removed from Ms. Selan responsibility for the individual psychotherapy of an adolescent client, "RS". After 1985, Ms. Selan never requested, and was never assigned, individual psychotherapy duties. In January 1986, Ms. Selan was assigned supervision of Mary Diamond, a new employee at the Institute. In June 1987, Ms. Selan began supervising Christina Kraemer, who was also a new employee at the Institute. In September and October 1987, Diamond and Kraemer each requested a new supervisor. In October 1987, both requests were granted, and Ms. Selan ceased supervising Kraemer and Diamond. Ms. Selan did not request any additional clinical supervisory duties.
On or around July 1, 1988, Ms. Selan applied to the Institute's social work privileging committee for a renewal of her professional privileges. The committee, an advisory body without mandate power, was composed of seven social workers who were Ms. Selan's peers; none of the individual defendants and no member of the Institute's administration took part in committee decisions. On or about July 25, 1988, the committee granted Ms. Selan's request for recordkeeping, client assessment, crisis intervention, discharge planning, and administrative supervision privileges, but denied her request for clinical supervision privileges. Ms. Selan did not request and did not receive individual psychotherapy privileges.
In 1987 and 1988, Ms. Selan filed four grievances under state administrative regulations against the defendants. Grievance number 88-05-105 alleged that the defendants wrongfully removed her supervisory responsibilities; grievance number 88-55-70 contested the three-day suspension; grievance number 88-45-104 contested her February 1987 performance evaluation; and grievance number 88-55-71 challenged the ten-day suspension. The grievances advanced to the fourth and final level of review, at which time Ms. Selan requested that further review be stayed until after trial in this case.
On October 11, 1989, Ms. Selan filed a five-count complaint against IDMH, the Institute, Dr. Davidson, and Ms. Kiley, in federal district court. Count one alleged that the defendants had violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, by (1) transferring her from unit chief at Horner to a less prestigious position at the Institute and replacing her with younger employees, and (2) "removing her professional credentials" by withdrawing her clinical supervision privileges in 1988. Count two alleged that the defendants had violated 42 U.S.C. § 1983 and her rights under the Equal Protection Clause by demoting her and withdrawing her privileges in retaliation for her participation in Chester Riley's discrimination suit. Count three alleged that the defendants had violated 42 U.S.C. § 1981 by denying Ms. Selan her right to enforce her contractual grievance rights, also in retaliation for her having helped Riley. Count four alleged that the defendants had breached her employment contract, in violation of Illinois law, by denying her meritorious grievances. On November 8, 1989, Ms. Selan amended her complaint to add count five, alleging that the defendants' retaliatory action also violated her rights under Title VII, 42 U.S.C. § 2000e.
The defendants moved for partial summary judgment. The court granted summary judgment as to those parts of counts one, two, and three that concerned the May 31, 1985, 2 transfer/demotion from Horner to the Institute. Because the transfer/demotion occurred more than four years before Ms. Selan filed her complaint (October 11, 1989), the court ruled that claims concerning it were barred by the applicable statute of limitations. However, the court found that the second act alleged--the withdrawal of supervisory privileges in July and August 1988--was within the statutory timeframe. The court rejected Ms. Selan's argument that the two acts were part of a continuing pattern of discrimination. The court granted summary judgment as to all of count four because Ms. Selan had voluntarily stayed the grievance procedure, and thus the grievances had never reached a final adjudication that could constitute a denial. The court did not address count five because the defendants had not moved for summary judgment with respect to count five. Mem. Op. of Sept. 26, 1990, (R.41) at 1-6.
Thus, the case "boiled down to plaintiff's allegations that she was denied her professional privileges and credentials July 25, 1988 by reason of age discrimination by defendants and in retaliation for her making statements favorable to Chester Riley's racial discrimination claim." Mem.Op. of Oct. 29, 1990, (R.51) at 3. The case was tried before the bench, and the court found in favor of the defendants and against Ms. Selan on the remaining claims.
Ms. Selan raises two main issues on appeal: (A) whether the district court erred on summary judgment in finding that there was not a continuing pattern of discrimination, and (B) whether the court erred after trial in finding that the defendants' removal of Ms. Selan's psychotherapy and clinical supervision duties was not an act of age discrimination or retaliation.
In response to the defendants' motion for partial summary judgment, Ms. Selan attempted to persuade the district court that her claims regarding the May 1985 demotion/transfer were not time-barred because that event was part of a continuing pattern of discrimination against her. The district court rejected this argument because the complaint did not allege a continuing violation but, rather, only two acts that were more than three years apart--the May 31, 1985, demotion/transfer and the July 25, 1988, removal of privileges. Mem.Op. of Sept. 26, 1990, (R.41) at 2. On appeal, Ms. Selan contends that the district court overlooked evidence of additional events between 1985 and 1988, which she offered in her response to the defendants' motion for summary judgment.
We review de novo a district court's grant of summary judgment. Doe v. Allied-Signal, Inc., 925 F.2d 1007, 1008 (7th Cir.1991). We " 'must view the record and...
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