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Carpenter v. University of Alabama Health Services Foundation, P.C.

United States District Court, N.D. Alabama, Southern Division

March 9, 2018

JOHN T. CARPENTER, JR., Plaintiff,
v.
UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C., Defendant.

          MEMORANDUM OPINION

          R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.

         This case is before the court on the Motion for Summary Judgment filed by Defendant University of Alabama Health Services Foundation, P.C. (“Defendant” or “UAHSF”), the sole remaining Defendant in this case. (Doc. # 40). The parties have fully briefed this Motion (Docs. # 41, 44, 48), and it is under submission. In this suit, Plaintiff seeks a declaration that his departure from the staff of UAHSF, as well as the faculty of the University of Alabama at Birmingham's (“UAB”) School of Medicine, violated his procedural due process rights under federal law and Alabama state law. (Complaint at ¶ 49).[1] He also seeks an order directing a “hearing in accordance with requirements of law and UAB's own internal procedures for termination of tenured faculty, ” reinstatement pending such a hearing, restoration of clinical privileges, and back pay. (See id.). Defendant argues that any claim against it is moot, that Plaintiff waived his procedural due process rights by resigning, and that it is not a state actor who must comply with procedural due process requirements. After careful review, and for the reasons explained below, the court concludes that Defendant is entitled to summary judgment on the federal procedural due process count raised against it, and that Plaintiff cannot succeed on any federal procedural due process claim because the undisputed evidence shows he voluntarily resigned from his faculty and staff positions.

         I. Factual Background[2]

         In August 1973, the UAB School of Medicine hired Plaintiff as a professor. (Carpenter Deposition at 24).[3] Plaintiff obtained tenure at UAB in 1977. (Id.). In 1974, Plaintiff signed an employment agreement with Defendant. (Doc. # 40-7). That employment agreement stated that Plaintiff was “a regular member of the Faculty of the School of Medicine of the University of Alabama in Birmingham.” (Id. at 2). Ultimately, Plaintiff worked at UAB's School of Medicine for forty years. (Carpenter Deposition at 24). Plaintiff practiced “oncology with a specialty in breast cancer.” (Id. at 15).

         In September 2013, Dr. Boris Pasche, who worked as the deputy director of the cancer center at UAB's School of Medicine, received a call from Dr. Jennifer De Los Santos. (Pasche Deposition at 5, 31).[4] De Los Santos informed Pasche that she had reported Plaintiff to a risk management committee because Plaintiff had utilized hormone therapy for a long period of time on a patient whose breast cancer was progressing. (Id. at 31). Plaintiff has recounted that he kept the patient on hormone therapy because she suffered from severe depression for several months before agreeing to undergo chemotherapy. (Carpenter Deposition at 61-62). Pasche instructed Dr. Lisle Nabell to review Plaintiff's patient records to determine whether the reported issue was an isolated incident. (Pasche Deposition at 34). Pasche also contacted Dr. Robert Bourge, who served as the vice chair of clinical affairs in UAB's Department of Medicine, to inform him about the faculty issue. (Id. at 31-32). According to Pasche, Bourge discussed the matter with the risk management department and Dr. Seth Landefeld, the chair of UAB's Department of Medicine, and asked Pasche to set up a meeting with Plaintiff. (Id. at 32).

         Plaintiff has testified that, on September 10, 2013, Pasche's secretary contacted him around 4:00 P.M. and asked him to attend a meeting at Pasche's office after Plaintiff finished his clinical assignments. (Carpenter Deposition at 57). Plaintiff received no advance warning about the purpose of the meeting. (Id. at 59). Plaintiff entered the meeting and observed Pasche, Bourge, and other administrators from Landefeld's office. (Id. at 57-58). Pasche informed Plaintiff of De Los Santos's complaint that Plaintiff had continued preoperative treatment of a cancer patient for an unusually long period. (Id. at 60-61). According to Plaintiff, Pasche offered him no opportunity to respond to the complaint. (Id. at 66). Pasche also explained to Plaintiff that he had discussed the matter with the risk management committee and that “he had told the committee that he thought [Plaintiff] had no clinical judgment, and that if anybody came to see me on a given day, that . . . there was absolutely no way to predict what advice [Plaintiff] might give them.” (Id. at 62-63). Pasche related to Plaintiff that the risk management committee had concluded that such a doctor could not practice at UAB. (Id. at 63). Pasche told Plaintiff that he “would have to resign.” (Id.).

         After Pasche discussed the incident that led to the meeting, Bourge told Plaintiff “in a rather leering voice” that Plaintiff's “other alternative [was] to go to a hearing, the reports of which [would] be reported to the National Practitioner Database.”[5] (Id. at 63). Bourge boasted that he had never lost such a hearing. (Id. at 63-64). Bourge did not describe how such a hearing would be conducted. (Id. at 164-65). Plaintiff was permitted to complete his patient notes but told that his patients would be reassigned to other doctors. (Id. at 64). Pasche and Bourge did not ask Plaintiff to decide whether to resign during the meeting. (Id. at 67). They did not give him a specific period of time in which to decide whether to resign or contest the charges.[6] (Id.). After the meeting adjourned, Pasche told Plaintiff “that he felt that it would not be possible to get the [risk management] committee to reconsider its decision, and that he also thought that it would not be possible for [Plaintiff] to practice there given the information he had told them about [Plaintiff].” (Id. at 75-76). Pasche explained that Plaintiff might be able to continue teaching and research in a voluntary, unpaid faculty position. (Id. at 76).

         Plaintiff has testified that the September 10 meeting intimidated him because he had received no advance warning that he would be asked to resign. (Id. at 64). He felt that the complaint “distorted” the clinical care he had provided. (Id. at 159). He understood that Pasche and Bourge had presented him a choice to either resign or contest the charges against him in a formal proceeding. (Id. at 66-67). But, Plaintiff believed that he would not be reinstated because he had been told that the risk committee's decision was final and Pasche had asserted that he “would never recommend [Plaintiff] for practice again.” (Id. at 159-60). And, if the termination was reported to the National Practitioner Database, Plaintiff believed that he would have to explain the reasons for the termination to another prospective employer. (Id. at 160-61).

         When he returned to his office on September 10, Plaintiff told his nurse that he was “going to have to resign.” (Id. at 80-82). Plaintiff briefly described the meeting to his wife and “told her that I was going to be forced to resign because of the things that had been said about me.” (Id. at 83-84). Plaintiff did not speak with an attorney after the meeting and did not speak to anyone else at UAB on September 11, 2013. (Id. at 85). He discussed the meeting with one or two friends, but he cannot recall what he discussed during those conversations. (Id.). On September 11, 2013, Plaintiff “mostly thought about what had happened and tried to put some perspective on it and to think about realistic likelihoods of pursuing one way or another.” (Id.). He drafted some notes for the patients he had seen on September 10. (Id. at 86). He did not attend a meeting of UAB's institutional review board on September 11.[7] (Id. at 104-05). On September 11, a UAB employee drafted a resignation letter for Plaintiff, in which he would resign from his positions at UAB and UAHSF. (See Doc. # 40-5 at 85).[8]

         On September 12, 2013, Plaintiff met with Pasche again for twenty to thirty minutes. (Carpenter Deposition at 89-90). During that meeting, Pasche reiterated that “he thought there was no possibility of reconsideration or reversal of the committee's decision and that he thought there was zero chance that [Plaintiff] could ever practice again at UAB no matter what.” (Id. at 89). Pasche presented Plaintiff with a pre-written resignation letter. (Id. at 90). The letter states that Plaintiff voluntarily resigned from his professorship at UAB and his staff position at UAHSF, effective September 30, 2013. (Doc. # 40-4 at 60). It also states that Plaintiff would “provide a written plan for ongoing research and academic activities” that he wished to continue pursuing. (Id.). Plaintiff signed the resignation letter during the meeting. (Carpenter Deposition at 90-91). When he signed the letter, he believed that he was choosing to resign and foregoing a termination hearing. (Id. at 35, 92-93). Thereafter, on September 12, Pasche sent an email to the oncology faculty and staff at UAB informing them of Plaintiff's retirement. (Doc. # 40-4 at 61).

         After submitting the resignation letter, Plaintiff had second thoughts and decided that he did not want to resign from UAB. (Carpenter Deposition at 35). In late September 2013, Plaintiff met with Landefeld and asked him for permission to withdraw the resignation. (Id. at 35-36, 99-100). Plaintiff brought medical articles to support his preoperative treatment of a patient, but Landefeld explained that he could not evaluate the matter. (Id. at 100-01). Landefeld told Plaintiff that he could only regain clinical privileges if Pasche and Nabell agreed to reinstate them. (Id. at 101). In late September or early October 2013, Landefeld met with Plaintiff and Dr. Kirby Bland in another meeting. (Id. at 101-02). Thereafter, Plaintiff discussed a possible reinstatement with Nabell and asked if she would support his reinstatement. (Id. at 108-09). In an October 16, 2013 email to Landefeld, Bourge confirmed that Nabell and he did not support Plaintiff's reinstatement. (Doc. # 40-5 at 90). (See also Id. at 94-95) (emails by Nabell and Pasche discussing their opposition to Plaintiff's reinstatement). On November 20, 2013, a senior associate dean at UAB told Plaintiff that (1) UAB and UAHSF had accepted his resignation, (2) no mechanism existed for rescinding an accepted resignation, and (3) the resignations were final. (Id. at 68-69).

         II. Standard of Review

         Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving party has met its burden, Rule 56 requires the non-moving party to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file -- designate specific facts showing that there is a genuine issue for trial. Id. at 324.

         The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving ...


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