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Klein v. Trustees of Indiana University and Nancy Buckles

decided: June 20, 1985.

JUDITH KLEIN, PLAINTIFF-APPELLANT,
v.
TRUSTEES OF INDIANA UNIVERSITY AND NANCY BUCKLES, DEFENDANTS-APPELLEES



In the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 82 C 1992 - S. Hugh Dillin, Judge.

Coffey, Flaum, Circuit Judges, and Jameson, Senior District Judge.*fn*

Author: Coffey

COFFEY, Circuit Judge.

The plaintiff appeals a grant of summary judgment to the defendants on her retaliatory discharge claim under Title VII of the 1964 Civil Rights Act as well as the dismissal of pendent claims for wrongful discharge, breach of employment contract, and intentional infliction of emotional distress. We affirm.

I.

The plaintiff, Judith Klein, was employed as a staff psychiatrist in the Counseling and Psychiatric Services Unit ("CAPS") of the Indiana University Student Health Center in July 1974. When Klein was hired, the Student Health Center, located in Bloomington, Indiana, allowed Klein a specified number of hours during three afternoons per week to conduct a private practice in her office in her home. According to Klein, this arrangement was permitted under Health Center policy and was a determinative reason for her accepting employment in 1974. The written policy of the Health Center concerning time off provided:

"(1) A half-day per week will be granted to compensate for subsequent Saturday morning coverage or other Student Health Center authorized activities performed outside of regular hours that week."

Klein became the Acting Director of Psychiatry at the Student Health Center in 1976 and was appointed as an Associate Director of Psychiatry in 1977.

In January of 1979, the University appointed one Dr. Thomas Foster as director of CAPS, rather than Klein who had also applied for the position. In May of 1979, Foster eliminated the Associate Director of Psychiatry position. On June 8, 1979, Klein filed a charge with the Equal Employment Opportunity Commission ("EEOC") and a complaint with the Indiana Civil Rights Commission alleging that the defendant had awarded the position of Director to a less-qualified male.

In July of 1979, Foster directed Klein to consolidate her private practice time into one afternoon a week, Thursdays. Although she objected to the change in her schedule, Klein complied with Foster's order. According to Klein, Foster urged her to dismiss the charge before the EEOC and also "continually sent her notice of administrative positions at other institutions and indicated that plaintiff will be happier somewhere else." Foster, who had not planned to remain in the Director's position for an extended period of time, left an unfavorable evaluation of Klein's performance and competency when he resigned from CAPS in the spring of 1981. The defendant, Nancy Buckles, replaced Foster as Director of CAPS.

The EEOC issued a right to sue letter on April 14, 1981, and because the plaintiff, Klein, allowed 90 days to pass without filing an action in Federal court, she abandoned her right to pursue in Federal court her claim that the University had discriminated against her on the basis of sex when it failed to promote her to the position of Director in 1979.*fn1 On August 19, 1981, shortly after the 90-day limitation period for filing the sex discrimination lawsuit in Federal court had passed, Buckles informed Klein that her private practice time could no longer be taken on Thursday afternoons but must be taken on either Tuesday or Friday morning. Klein, who at that time was the only staff psychiatrist at the Student Health Center, was directed to alter her schedule to accommodate the schedules of two other psychiatrists who were in private practice and employed by the Student Health Center on a part-time basis. The Student Health Center, which normally employed three staff psychiatrists, obtained the services of the private part-time practitioners in order that they might provide continuous psychiatric coverage at the Center. Klein objected, arguing that most of her private patients were children who would have to miss school to see her in the morning. Although Buckles expressed some regret over the hardship caused to Klein, she declined to ask the private practitioners to change their schedules to accommodate Klein's needs. Klein responded that "she would have to think about it." On August 20, 1981, Klein sent Buckles a memo stating:

"As per our conversation and your request of 8/19, I have given the subject considerable thought and I have decided that I will utilize Tuesday and Friday mornings as my off-clinic time."

On August 24, 1981, Buckles responded to Klein by written memo, stating that Klein must have misunderstood -- she was to select either Tuesday morning or Friday morning, but not both. On the following day, Klein sent Buckles a memo stating simply, "I did not misunderstand."

Buckles referred the situation to Nancy Tardy, the Director of the Student Health Center, who informed Klein by memo dated August 27, 1981, that Klein could not be given two half days of private practice time per week. Tardy further instructed Klein that because Buckles had scheduled Tuesday morning for Klein's private practice times, she expected Klein to fulfill her normal duties ...


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