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Kirschenbaum v. Northwestern University

April 12, 2000


The opinion of the court was delivered by: Justice Burke


Appeal from the Circuit Court of Cook County.

Honorable David Lichtenstein, Judge Presiding.

Plaintiff Daniel Kirschenbaum appeals from an order of the circuit court entering judgment in favor of defendant Northwestern University (Northwestern) and against plaintiff following a bench trial in a breach of employment contract action brought by plaintiff against Northwestern. Plaintiff contends on appeal that the trial court erred in (1) denying plaintiff's motion for substitution of judge; (2) ruling that Northwestern had not breached the tenure-based employment contract entered into between plaintiff and Northwestern; (3) failing to find a constructive discharge without cause; and (4) finding that the tenure- based employment contract did not obligate Northwestern to provide plaintiff with a reasonable annual salary and benefits. For the reasons set forth below, we affirm.

Plaintiff, a tenured professor of Clinical Psychiatry and Behavioral Sciences at Northwestern University Medical School (Northwestern's medical school) filed a two-count complaint in the chancery division of the circuit court against defendants Northwestern, Northwestern's medical school, and Northwestern University Medical Faculty Foundation (the Foundation) for breach of contract. Plaintiff alleged that defendants had failed to provide him with a salary as well as teaching and clinical responsibilities and research facilities. Count I, which sought specific performance, was dismissed for failure to state a claim. Count II, the remaining claim, sought damages for breach of the contract. The record indicates that plaintiff voluntarily dismissed Northwestern's medical school as a party prior to trial and did not seek to hold the Foundation liable at trial.

The second document is a letter dated November 19, 1990, authored by Robert Duncan, Provost of Northwestern, which informs plaintiff that Northwestern's board of trustees had approved Duncan's recommendation that plaintiff be "promoted to Professor of Psychiatry with tenure effective September 1, 1990."

The last two documents are the two handbooks referenced in Dr. Nutter's letter to plaintiff, entitled "Northwestern University Faculty Handbook" (the University Handbook) and "Northwestern University Medical School Faculty Handbook" (the Medical School Handbook). The University Handbook specifies, in pertinent part, that "[t]enure is signified by an appointment for an indefinite period." The Medical School Handbook also specifies, in pertinent part, that "[t]he award of tenure carries with it an indefinite term of appointment for all faculty members who receive this honor," and it defines the salary obligation undertaken by Northwestern in connection with tenure awarded to one of its medical school faculty members as follows:

"The financial obligation inherent in [Northwestern] granting tenure is defined as a base salary. A faculty member will be notified in writing by the dean at the time tenure is awarded regarding the level of the base salary. The base salary is usually zero for physician faculty members who are awarded tenure."

Subsequent to numerous pleadings filed by the parties, including a motion for summary judgment filed by Northwestern which was denied, this case was transferred from the chancery division to the law division of the circuit court for further proceedings and trial. [Nonpublishable material removed under Supreme Court Rule 23].

At trial, both parties agreed that plaintiff remained a tenured faculty member at Northwestern. The parties presented the following evidence which chronicles the events preceding, during, and subsequent to plaintiff's tenure. In 1984, Northwestern had appointed plaintiff to its medical school faculty as a non-tenured Associate Professor of Psychiatry and Behavioral Sciences for a one-year term; postdating this term, plaintiff served a five-year non-tenured term. Plaintiff conceded, and the evidence showed, that he was advised both orally and in writing that his appointment was for a tenure-eligible track position with a zero-base salary. Plaintiff was advised that, in accord with Northwestern's "zero-base salary policy," plaintiff would not receive any salary from Northwestern should he eventually be awarded tenure but that "there would be hopefully other sources of reimbursement for him." In addition, plaintiff received a letter dated November 2, 1984, from Harold Visotsky, chair of the Department of Psychiatry and Behavioral Science at the Northwestern's medical school, stating that plaintiff had been appointed to the "faculty of Northwestern University Medical School at the rank of Associate Professor of Psychiatry and Behavioral Sciences. This is a tenure eligible track position and the Northwestern University Medical School base salary is zero. ***

You will be required to volunteer three hours per week of contributed service, which would be over and above that given for your salaried position, and you are expected to attend the monthly departmental meetings as scheduled. ***


The detailing of your salaried work assignments are necessarily condensed in this letter and the formal contract should be referenced as a more definite description of your conditions of employment.

As part of your academic appointment, you will be expected to supervise clinical psychology and psychiatry residents and medical students, to conduct educational diagnostic seminars, and to serve on qualification and dissertation committees. In addition, you will be expected to continue your research work in obesity and health psychology. *** It is expected that this work will result in extramural grant submissions and funding, as well as publications in relevant journals."

Dr. Nutter testified that Northwestern's medical school had adopted a zero-base salary policy for its tenured licensed clinical faculty, which had been in place at least two years preceding plaintiff's appointment to Northwestern's medical school clinical faculty in 1985. Nutter testified that Northwestern had adopted its zero-base salary for its tenured clinical medical school faculty members for two reasons. First, Northwestern provided limited funds to its medical school and, therefore, its medical school and clinical departments lacked the financial resources to commit to the clinicians who receive tenure; in other words, Northwestern's medical school could not practically guarantee the salaries of its tenured clinical faculty members. Secondly, Northwestern's medical school faculty earned sizeable salaries from non-university sources, including practice plans and teaching hospitals. As of 1997, according to Nutter, Northwestern's medical school was one of 20 medical schools that had awarded tenure in their clinical departments without attaching onto the tenure award any school financial obligation.

According to Dr. Nutter, who had participated in placing Northwestern's zero-base salary policy in the Medical School Handbook, underlying Northwestern's zero-base salary for tenured medical school clinical faculty members were two salary components: a "base" salary described in the Medical School Handbook as "zero;" and a "total" salary which referred to the total amount of salary paid to faculty members from Northwestern and all "approved" sources identified in the Medical School Handbook. According to Nutter, the approved sources included in pertinent part, the Northwestern Memorial Hospital (the Hospital) and the Foundation, two distinct entities with which Northwestern had entered into affiliation agreements.

The evidence further revealed that plaintiff had received a salary from 1985 to 1992, not from Northwestern, but from the Hospital and the Foundation. Specifically, simultaneous with plaintiff's appointment in 1985 as an associate professor at Northwestern's medical school, plaintiff had signed a written employment agreement with the Hospital. The agreement stated that "[i]n consideration of the services to be performed by [plaintiff] pursuant to this Agreement, [the Hospital] shall pay to [Northwestern] the amount of $45,000 per year to be paid to [plaintiff] by [Northwestern]." In accordance with this agreement, plaintiff's salary was provided by the Hospital, even though his paychecks were issued by Northwestern pursuant to a previously arranged agreement between Northwestern and the Hospital. Under the agreement between Northwestern and the Hospital, the Hospital would reimburse Northwestern for all funds Northwestern disbursed to plaintiff. The evidence also showed that plaintiff knew that the Hospital, and not Northwestern, was the source of his salary, i.e., a faculty action form that accompanied plaintiff's application for tenure in 1989 indicated that plaintiff's salary source was derived solely from the Hospital.

Pursuant to the plaintiff's employment agreement with the Hospital, plaintiff was required to devote approximately 40 hours each week counseling patients of the Hospital's Eating Disorders Program, a program administered and funded by the Hospital. Plaintiff's employment with the Hospital continued into 1991, with the chairmen of his department (first Dr. Harold Visotsky and then Dr. Sheldon Miller) recommending his total salary each year.

Effective September 1, 1990, plaintiff was promoted from associate professor to full professor with tenure at Northwestern. According to Dr. Nutter, plaintiff was awarded tenure as a full-time member of a clinical department and as a health professional, and no financial obligation on Northwestern's part was attached to plaintiff's tenure award. Nutter, the author of the letter dated August 24, 1990, informing plaintiff that he had been granted tenure by Northwestern, testified that plaintiff never asked him what was meant by the language used in the letter. Plaintiff, as a tenured professor, continued to teach and research and perform ...

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