Kieran Bhattacharya v. James Murray, Jr.

93 F.4th 675

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1999

KIERAN RAVI BHATTACHARYA,

Plaintiff - Appellant,

v.

JAMES B. MURRAY, JR., in his official capacity as Rector of the Board of Visitors of the University of Virginia; WHITTINGTON W. CLEMENT, in his official capacity as Vice Rector of the Board of Visitors of the University of Virginia; ROBERT M. BLUE; MARK T. BOWLES; L. D. BRITT, M.D. , M.P.H.; FRANK M. CONNER, III; ELIZABETH M. CRANWELL; THOMAS A. DEPASQUALE; BARBARA J. FRIED; JOHN A. GRIFFIN; LOUIS S. HADDAD; ROBERT D. HARDIE; MAURICE A. JONES; BABUR B. LATEEF, M.D.; ANGELA HUCLES MANGANO; C. EVANS POSTON, JR.; JAMES V. REYES, in his official capacity as Member of the Board of Visitors of the University of Virginia; PETER C. BRUNJES, in his official capacity as Member of the Board of Visitors of the University of Virginia; MELISSA FIELDING, in her official capacity as Deputy Chief of Police of the University of Virginia; JOHN J. DENSMORE, M.D., Ph.D., in his official capacity as Associate Dean for Admissions and Student Affairs of the University of Virginia School of Medicine; JIM B. TUCKER, M.D., in his official capacity as Chair of the Academic Standards and Achievement Committee of the University of Virginia School of Medicine; CHRISTINE PETERSON, M.D., Assistant Dean for Medical Education of the University of Virginia School of Medicine; EVELYN R. FLEMING; CARLOS M. BROWN; LEWIS FRANKLIN (L. F.) PAYNE, JR.,

Defendants - Appellees.

No. 22-2064 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 2 of 57

JAMES B. MURRAY, JR., in his official capacity as Rector of the Board of Visitors of the University of Virginia; WHITTINGTON WHITESIDE CLEMENT, in his official capacity as Vice Rector of the Board of Visitors of the University of Virginia; ROBERT M. BLUE; MARK T. BOWLES; L. D. BRITT, M.D. , M.P.H.; FRANK M. CONNER, III; ELIZABETH M. CRANWELL; THOMAS A. DEPASQUALE; BARBARA J. FRIED; JOHN A. GRIFFIN; LOUIS S. HADDAD; ROBERT D. HARDIE; MAURICE A. JONES; BABUR B. LATEEF, M.D.; ANGELA HUCLES MANGANO; C. EVANS POSTON, JR.; JAMES V. REYES, in his official capacity as Member of the Board of Visitors of the University of Virginia; PETER C. BRUNJES, in his official capacity as Member of the Board of Visitors of the University of Virginia; MELISSA FIELDING, in her official capacity as Deputy Chief of Police of the University of Virginia; JOHN J. DENSMORE, M.D., Ph.D., in his official capacity as Associate Dean for Admissions and Student Affairs of the University of Virginia School of Medicine; JIM B. TUCKER, M.D., in his official capacity as Chair of the Academic Standards and Achievement Committee of the University of Virginia School of Medicine; CHRISTINE PETERSON, M.D., Assistant Dean for Medical Education of the University of Virginia School of Medicine; EVELYN R. FLEMING; CARLOS M. BROWN; LEWIS FRANKLIN (L. F.) PAYNE, JR.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:19-cv-00054-NKM-JCH)

Argued: October 24, 2023 Decided: February 26, 2024

Before THACKER and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.

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Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Keenan concurred. Judge Quattlebaum wrote a separate opinion concurring in part and dissenting in part.

ARGUED: Michael J. Lockerby, FOLEY & LARDNER LLP, Washington, D.C., for Appellant. Frederick William Eberstadt, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Jason S. Miyares, Attorney General, Charles H. Slemp, III, Chief Deputy Attorney General, Andrew N. Ferguson, Solicitor General, Erika L. Maley, Principal Deputy Solicitor General, Kevin M. Gallagher, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

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THACKER, Circuit Judge:

Kieran Bhattacharya (“Appellant”) is a former medical student at the University of

Virgnia School of Medicine (“UVA”). He claims that numerous UVA officials

(collectively, “Appellees”) 1 reprimanded, suspended, and then expelled him in violation of

the First Amendment because of the views he expressed during a faculty panel -- in other

words, because of his protected speech. Appellees assert they took these actions against

Appellant not because of his speech, but as a result of Appellant’s confrontational,

threatening, behavior.

The district court sided with Appellees, holding at summary judgment that

Appellant could point to no evidence that Appellees punished Appellant due to his speech.

We agree. Appellant has failed to present evidence sufficient to create a triable issue

as to whether his speech caused the actions UVA took against him. A medical school’s

administrators have the authority to set the minimum standards of professionalism for

conferral of a medical doctorate. Even more, they have the authority and obligation to

ensure the safety of the school’s faculty and staff. Appellees appropriately exercised that

authority with due regard for the Constitution.

We affirm.

1 The Appellees include James B. Murray, Jr., Whittington Whiteside Clement, Robert M. Blue, Mark T. Bowles, Dr. L.D. Britt, Frank M. Conner, III, Elizabeth M. Cranwell, Thomas A. DePasquale, Barbara J. Fried, John A. Griffin, Louis S. Haddad, Robert D. Hardie, Maurice A. Jones, Dr. Babur B. Lateef, Angela Hucles Mangano, C. Evans Poston, Jr., James V. Reyes, Peter C. Brunjes, Melissa Fielding, Dr. John J. Densmore, Dr. Jim B. Tucker, Dr. Christine Peterson, Evelyn R. Fleming, Carlos M. Brown, and Lewis Franklin (L.F.) Payne Jr.

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I.

A.

Appellant began medical school at UVA in the fall of 2016. By January 2017,

Appellant checked himself into UVA Health System’s emergency department with mental

health symptoms. He reported that he was “feeling out of it in the head.” J.A. at 2050. 2

While Appellant was in the hospital, his roommates contacted Appellee Dr. John

Densmore, the Dean of Student Affairs, about Appellant’s problems. Dean Densmore

visited Appellant in the hospital. Following a two week hospitalization, during which

Appellant had symptoms “consistent with a manic episode of psychosis,” id. at 1313,

Appellant was discharged and was diagnosed with “[b]ipolar disorder, current manic

episode, with psychosis,” id. Appellant took a voluntary leave from UVA starting on

February 7, 2017. He returned to class in Spring 2018.

In September 2018, Appellant reported to Dr. Christine Peterson, a faculty member

who was the dean on call at the time, 3 that a mental health episode was preventing him

from sleeping or studying. He requested that he be able to delay taking an exam, and his

request was granted. Dean Peterson informed other faculty members, including Dean

Densmore, about Appellant’s call.

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

The dean on call is a UVA faculty member available to help with student crisis 3

management and incident response.

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B.

On October 25, 2018, the student chapter of the American Medical Women’s

Association hosted a faculty panel called “Microaggressions: Why Are ‘They’ So

Sensitive?” Appellant attended that panel, and he claims to have been punished by UVA

for certain statements he made, and questions he asked, on the topic of microaggressions. 4

During the panel, several faculty members offered their views and research on

microaggressions, and another faculty member moderated. At the end, the moderator

opened the floor for questions from the audience. Appellant was the first student to address

the panel. He had the following interaction:

[Appellant]: Hello. Thank you for your presentation. I had a few questions just to clarify your definition of microaggressions. Is it a requirement, to be a victim of microaggression, that you are a member of a marginalized group?

[Dr. Beverly] Adams[, a faculty panelist]: Very good question. And no. And no—

[Appellant]: But in the definition, it just said you have to be a member of a marginalized group—in the definition you just provided in the last slide. So that’s contradictory.

[Dr.] Adams: What I had there is kind of the generalized definition. In fact, I extend it beyond that. As you see, I extend it to any marginalized group, and sometimes it’s not a marginalized group. There are examples that you would think

4 “A statement, action, or incident regarded as an instance of indirect, subtle, or unintentional discrimination or prejudice against members of a marginalized group such as a racial minority.” Microaggression, Oxford English Dictionary (July 2023), https://perma.cc/H9PW-9E9M.

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maybe not fit, such as body size, height, [or] weight. And if that is how you would like to see me expand it, yes, indeed, that’s how I do.

[Appellant]: Yeah, follow-up question. Exactly how do you define marginalized and who is a marginalized group? Where does that go? I mean, it seems extremely nonspecific.

[Dr.] Adams: And—that’s intentional. That’s intentional to make it more nonspecific . . . .

J.A. 1314–16.

After this exchange, Appellant continued to critique Dr. Adams’ theory and impugn

her research as anecdotal. Appellant asked a series of follow-up questions until UVA

faculty panelist Dr. Sara Rasmussen intervened. Dr. Rasmussen discussed her own

understanding of microaggressions, offered an anecdote, and attempted to open the floor

to other students for questions. But Appellant took the microphone again to contest Dr.

Rasmussen’s statements, and the two briefly argued until Dr. Rasmussen called on another

student to ask a question.

One of the faculty panelists, Dr. Nora Kern, later emailed Dean Peterson about

Appellant’s interaction with the panel. Drs. Kern and Peterson were the only members of

the UVA faculty present during the microaggressions panel. Dr. Kern initiated the email

exchange by asking if Dean Peterson knew who the “extremely unprofessional” student

during the panel discussion was, and she suggested his behavior should be discussed by

the School of Medicine’s Academic Standards and Achievement Committee (“ASAC”).

J.A. 1316. Dr. Kern expressed concern about how Appellant’s professionalism would

affect his rotations. Dean Peterson told Dr. Kern that, if she wished, she could submit a

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“Concern Card,” a tool used by UVA to monitor students’ professional behavior, which

“may prompt review by ASAC but contains no punitive effect.” Id. Thereafter, Dr. Kern

submitted a Professionalism Concern Card to memorialize her concerns with Appellant’s

colloquy.

On November 1, Dean Densmore, who was Appellant’s dean, submitted the

Concern Card to the ASAC for review. The ASAC considered the Concern Card in a

November 14 meeting and voted unanimously to send Appellant a letter the following day

(the “ASAC Letter”). 5 The letter was sent by Dr. Jim B. Tucker, a member of the ASAC.

It read in its entirety as follows:

The [ASAC] has received notice of a concern about your behavior at a recent AMWA panel. It was thought to be unnecessarily antagonistic and disrespectful. Certainly, people may have different opinions on various issues, but they need to express them in appropriate ways. It is always important in medicine to show mutual respect to all: colleagues, other staff, and patients and their families. We would suggest that you consider getting counseling in order to work on your skills of being able to express yourself appropriately.

J.A. 765.

C.

On November 14, the same day the ASAC met and voted to send the ASAC Letter

to Appellant, Dean Densmore met with Appellant in person to discuss his failing grade in

his hematology course. Appellant’s behavior during this meeting gave Dean Densmore

5 Dean Densmore was not at the ASAC meeting and did not vote on whether to send the letter.

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cause for concern, so Dean Densmore asked Appellant either to consult with his private

psychiatrist or seek evaluation at UVA Student Health’s Counsel and Psychological

Services (“CAPS”). After the meeting, Appellant and Dean Densmore walked together to

CAPS. A clinician evaluated Appellant, and, based on Appellant’s behavior during the

evaluation, petitioned for an emergency custody order. University police then escorted

Appellant to the UVA Medical Center where he was hospitalized until November 16, 2018.

Two days after Appellant’s discharge from emergency custody, police officers

responded to a domestic incident at Appellant’s apartment between Appellant and his

mother. The next day, November 19, Appellant’s mother filed a petition to have Appellant

involuntarily committed. She alleged Appellant “got inches from [her] face screaming and

pounding fists toward me so that I felt I was in imminent harm.” J.A. 1317. A magistrate

issued an emergency custody order for Appellant that day based upon “probable cause”

that Appellant “ha[d] a mental illness and [wa]s in need of hospitalization or treatment,

and . . . a substantial likelihood that, as a result of mental illness, [Appellant would] . . .

cause serious physical harm to self or others, as evidenced by recent behavior.” J.A. 986.

The same day this second emergency custody order was issued, Appellant’s ex-

girlfriend, also a medical student at UVA, sought Dean Peterson’s help obtaining a

protective order against Appellant. Dean Peterson helped Appellant’s ex-girlfriend obtain

the protective order by writing a letter in support of the ex-girlfriend’s petition. 6

6 On November 26, 2018, a municipal court in Charlottesville awarded Appellant’s ex-girlfriend a protective order based upon a preliminary finding that she was “in immediate and present danger of family abuse or there [wa]s sufficient evidence to (Continued) 9 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 10 of 57

Also on November 19, Appellant met again with Dean Densmore. And once again,

Appellant’s behavior caused Dean Densmore concern. As a result, University Police were

contacted. The police intercepted Appellant as he was leaving the building. Because an

emergency custody order had been entered in response to Appellant’s mother’s petition,

Appellant was taken into custody and transported to the emergency department at UVA

Medical Center. Based upon clinicians’ diagnosis of Appellant, a municipal court issued

a temporary detention order for Appellant to be transported to Poplar Springs Hospital in

Petersburg, Virginia.

Upon Appellant’s release from the hospital on November 26, 2018, Dean Densmore

emailed Appellant to tell him he would need to be cleared by CAPS before returning to

class because the UVA medical school attendance policy required students to be medically

evaluated if they missed two or more consecutive days due to illness.

D.

On November 28, 2018, the ASAC held a meeting with Appellant to discuss his

enrollment status. At the beginning of the meeting, Appellant photographed the ASAC

members collectively. Appellant made an audio recording of the meeting on his cell phone,

and the meeting was videoed on the body camera of a police officer who attended the

meeting.

The district court described the meeting as follows:

establish probable cause that family abuse ha[d] recently occurred so as to justify an ex parte proceeding.” J.A. 2703.

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ASAC held a meeting on November 28, 2018 to discuss [Appellant]’s enrollment status and invited [Appellant] to attend. In the prior weeks, administrators at the medical school had discussed various avenues to suspend [Appellant] from the medical school, determining that he could not be suspended on academic or Title IX grounds. At the November 28 meeting, [Appellant] repeatedly attempted to bring up the microaggression panel, but [was] told that “[had been] addressed last month,” and that “the reason we’re having this meeting tonight is that there’s concern about your interactions and behaviors most recently.” Dr. Bart Nathan similarly explained: “We are having this discussion because we are concerned about your professionalism and professional behavior in medical school.”

J.A. 1318–19 (citations omitted). At the end of the meeting, while still recording,

Appellant asked the ASAC members each of their names individually.

After the meeting, the ASAC decided that Appellant failed to meet the school’s

requirements for continued enrollment and voted unanimously to suspend him. The next

day, November 29, 2018, the ASAC sent Appellant a letter informing him he was

suspended for one year. In relevant part, the letter stated as follows:

[ASAC] has determined that your aggressive and inappropriate interactions in multiple situations, including in public settings, during a speaker’s lecture, with your Dean, and during the committee meeting yesterday, constitute a violation of the School of Medicine’s Technical Standards that are found at: [link]. Those Standards, in relevant part and as related to professionalism, state that each student is responsible for: Demonstrating self-awareness and self-analysis of one’s emotional state and reactions; Modulating affect under adverse and stressful conditions and fatigue; Establishing effective working relationships with faculty, other professionals and students in a variety of environments; and Communicating in a non-judgmental way with persons whose beliefs and understandings differ from one’s own.

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J.A. 871. The letter further stated that Appellant could appeal the suspension, which he

did, though the suspension process was put on hold and eventually derailed by the events

that followed.

E.

In December 2018, UVA became aware that Appellant was posting about his

suspension online. This included the photographs he took of the ASAC members, which

Appellant posted to the message board 4chan 7 with the caption, “These are the f[***]gots

ruining my life.” J.A. 1181. The message prompted posts from other users encouraging

acts of violence against the ASAC members.

On December 30, 2018, UVA police met with UVA’s Threat Assessment Team to

address Appellant’s behavior. They discussed the protective order Appellant’s ex-

girlfriend obtained against Appellant; his multiple involuntary commitments; his threats

against faculty members at UVA; and his “pattern of retaliatory behavior.” J.A. 1320. The

police decided to issue a no trespass order (“NTO”) against Appellant which was delivered

to Appellant orally on a telephone call. The police followed up and mailed a written

version of the NTO to Appellant’s parents’ house on January 2, 2019. The written NTO

prohibited Appellant from entering UVA grounds for four years except as a patient of the

medical center and explained the process for appealing the order. The deadline for

7 4chan is “a simple image-based bulletin board where anyone can post comments and share images. There are boards dedicated to a variety of topics, from Japanese animation and culture to videogames, music, and photography. Users do not need to register an account before participating in the community.” 4chan, https:/perma.cc/XN5N- XTF7 (last visited Dec. 21, 2023).

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appealing the NTO was five days from the date of service. Appellant did not appeal the

NTO until July 21, 2019. UVA considered and denied Appellant’s appeal of the NTO as

untimely because it was filed more than six months after the order was issued.

F.

On September 16, 2019, Appellant filed a pro se Complaint against Appellees

alleging two claims, a First Amendment claim and a Fifth Amendment procedural due

process claim. He retained counsel and filed an Amended Complaint in February 2020,

alleging four claims: (1) a First Amendment retaliation claim; (2) a Fourteenth Amendment

due process claim; (3) a claim for conspiracy to interfere with civil rights in violation of 42

U.S.C. § 1985; and (4) a common law conspiracy claim. Appellees moved to dismiss the

First Amended Complaint, and on March 31, 2021, the district court dismissed all claims

except Appellant’s First Amendment retaliation claim. Appellant then sought leave to file

a Second Amended Complaint with additional facts regarding his First Amendment claim,

a new conspiracy claim, and additional defendants, including his ex-girlfriend. On March

16, 2022, the district court denied Appellant’s request to amend his complaint to add a civil

conspiracy claim and to add his ex-girlfriend as a defendant. Appellant accordingly filed

a Second Amended Complaint, alleging only First Amendment retaliation.

Appellees moved for summary judgment. They argued Appellant could not show

that Appellees took adverse action against him because of his protected speech and that

Appellees Densmore and Peterson were shielded by qualified immunity. The district court

granted the motion. The court held Appellant had failed to show that several of the actions

of which he complained, including the Concern Card, the ASAC Letter, and the

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requirement of CAPS clearance, were adverse actions under the First Amendment. The

court also held that Appellant had failed to present evidence of a causal connection between

his speech and any of Appellees’ actions.

The evidence indicated Appellees took action against Appellant for each of the

following reasons:

• Multiple involuntary hospitalizations for psychiatric treatment • Threats against his mother, which resulted in an emergency custody order • Intimidating behavior toward his girlfriend, which resulted in an emergency protective order • Confrontational conduct directed at his dean • Abrasive, interruptive exchanges with faculty, including at the faculty panel and in the ASAC meeting • Disclosing the identities and likenesses of UVA administrators with an accompanying slur in an online forum

Appellant timely appealed.

II.

We review a district court’s grant of summary judgment de novo. Guthrie v. PHH

Mortg. Corp., 79 F.4th 328, 342 (4th Cir. 2023) (citing Sedar v. Reston Town Ctr. Prop.,

LLC, 988 F.3d 756, 761 (4th Cir. 2021)). Summary judgment is appropriate only when

there are “no genuine disputes as to any material fact.” Id. A dispute is “genuine” if the

evidence presented would allow a reasonable factfinder to find for the nonmovant. Id. A

fact is “material” if it may influence the outcome of the suit under governing law. Jones

v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016).

A court cannot substitute its judgment for that of the factfinder and award summary

judgment based on its prediction of the result at trial. Guthrie, 79 F.4th at 342. But a court

must award summary judgment when “the evidence could not permit a reasonable jury to 14 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 15 of 57

return a favorable verdict” for the nonmoving party. Id. In making that determination, a

court must view all facts, and reasonable inferences taken therefrom, in the light most

favorable to the nonmoving party -- here, Appellant. Davison v. Rose, 19 F.4th 626, 633

(4th Cir. 2021), cert. denied, 143 S. Ct. 106 (2022).

Ordinarily, when a district court denies leave to amend, we review the district

court’s denial for abuse of discretion. Mowery v. Nat’l Geospatial-Intel. Agency, 42 F.4th

428, 442 (4th Cir. 2022), cert. denied, 143 S. Ct. 783 (2023); United States ex rel.

Nicholson v. MedCom Carolinas, Inc., 42 F.4th 185, 197 (4th Cir. 2022). But when a

district court denies leave to amend based upon the futility of the proposed amendment, as

the court did here, that denial amounts to a dismissal of the proposed claims as legally

insufficient, and we review the court’s judgment de novo. See Cannon v. Peck, 36 F.4th

547, 575 (4th Cir. 2022). Similarly, when, as here, a district court dismisses a count for

failure to state a claim, we review the dismissal de novo, taking as true all plausible, well

pled allegations in the complaint. United States ex rel. Taylor v. Boyko, 39 F.4th 177, 189

(4th Cir. 2022) (citing Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).

III.

Appellant raises three issues on appeal. First, he argues the district court resolved

genuine disputes of fact in favor of Appellees at summary judgment, discrediting evidence

that he was punished for protected speech. Second, he argues the district court erroneously

denied him leave to add a conspiracy claim on the basis that his proposed amendment was

futile. And third, he argues the district court erred in dismissing his due process claim

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because his dismissal from UVA was disciplinary, not academic, and he argues he received

inadequate process for a disciplinary dismissal.

Summary Judgment: First Amendment Claim

The district court determined that Appellant presented no evidence at summary

judgment from which a reasonable factfinder could decide he was retaliated against

because of his protected speech. The court observed, “[Appellant] still has nothing more

than speculation to support his claim -- he has not unearthed even a scintilla of evidence

that would demonstrate that Defendants took any adverse action against him because of his

protected speech.” J.A. 1330. Instead, the court held, UVA took action because of

Appellant’s conduct, which included his being “repeatedly involuntarily committed to

mental health institutions for threatening others.” Id. at 1331. As a result, the district court

awarded summary judgment against Appellant. We agree with the district court’s

assessment.

A review of the record in this case yields but one conclusion: Appellant was

suspended, and later banned, from UVA because of his confrontational and threatening

behavior, not his speech.

1.

First Amendment Framework

The First Amendment’s Free Speech Clause provides, “Congress shall make no

law . . . abridging the freedom of speech.” U.S. Const. amend. I. The parties do not dispute

that, as a general matter, the First Amendment constrains UVA’s actions, as UVA is an

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arm of the Commonwealth of Virginia. See, e.g., Porter v. Bd. of Trustees of N.C. State

Univ., 72 F.4th 573, 582 (4th Cir. 2023); Cuccinelli v. Rector, Visitors of Univ. of Va., 722

S.E.2d 626, 630 (Va. 2012).

Here, Appellant has sued Appellees under a theory of First Amendment retaliation.

The First Amendment’s Free Speech Clause guarantees both “the affirmative right to

speak” and the concomitant “right to be free from retaliation by a public official for the

exercise of that right.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d

474, 499 (4th Cir. 2005) (quoting Suarez Corp. Indus. V. McGraw, 202 F.3d 676, 685 (4th

Cir. 2000)). “A plaintiff claiming First Amendment retaliation must demonstrate that: ‘(1)

[he] engaged in protected First Amendment activity, (2) the defendants took some action

that adversely affected [his] First Amendment rights, and (3) there was a causal relationship

between [his] protected activity and the defendants’ conduct.’” Davison v. Rose, 19 F.4th

626, 636 (4th Cir. 2021) (alteration in original) (quoting Constantine, 411 F.3d at 499),

cert. denied, 143 S. Ct. 106 (2022).

The district court rested its summary judgment order upon adverse action and

causation, granting Appellant the benefit of the doubt regarding his “protected speech” --

i.e., the views and criticisms he offered regarding microaggressions during the

microaggressions panel. Appellant contends the district court erred as to both the adverse

action and causation elements, first by discounting several of his asserted adverse actions

and then by determining that Appellant could not point to “any evidence in the record that

could reasonably support a jury verdict in his favor on the causation prong.” J.A. 1327.

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Like the district court, we assume without holding that Appellant engaged in

protected speech at the microaggressions panel.

2.

Adverse Actions and Causation

The district court held that Appellant “put forward no direct evidence that [the

Appellees] considered the content of his speech in undertaking any of the adverse actions

in question.” J.A. 1328. The court held this was true for all actions taken against

Appellant, including those the court deemed “adverse actions” and those it did not.

The district court placed particular emphasis on the fact that any references to the

microaggressions panel that cropped up in later actions -- the Concern Card, the ASAC

Letter, Appellant’s suspension, Appellant’s psychiatric evaluations, and the NTO --

referred to the tone and demeanor of Appellant’s speech during the panel, not the content.

And the district court held, citing this court, “[I]t is not a Constitutional violation for

government officials to take protective or preventative action based on the manner or

context in which an individual speaks, especially where the speech is aggressive or

threatening.” J.A. 1328 (citing Davison, 19 F.4th at 637; Wood v. Arnold, 321 F. Supp. 3d

565, 581 (D. Md. 2018), aff’d, 915 F.3d 308 (4th Cir. 2019)).

But Appellant contends he did present evidence that UVA took adverse actions

against him because of the contested speech. To make that case, Appellant must explain

how the district court erred in linking the actions taken against him to his conduct, as

opposed to his speech. See Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (“[I]t is

not enough that the protected expression played a role or was a motivating factor in the

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retaliation; claimant must show that ‘but for’ the protected expression the [state actor]

would not have taken the alleged retaliatory action.”) (alterations in original) (quoting

Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990)). He

must demonstrate that the court ignored material evidence that would allow a factfinder to

determine UVA punished him for his speech, or that the court sided with UVA when

material facts pointed both ways, creating a genuine issue for a factfinder to resolve.

Guthrie v. PHH Mortg. Corp., 79 F.4th 328, 342 (4th Cir. 2023) (noting a court may not

“base a grant of summary judgment merely on the belief ‘that the movant will prevail if

the action is tried on the merits’”) (quoting Sedar v. Reston Town Ctr. Prop., LLC, 988

F.3d 756, 761 (4th Cir. 2021)).

Contrary to Appellant’s assertion, the record is replete with evidence that Appellees

took the actions they did against Appellant based upon his conduct, which rendered him

unfit, in their view, for the professional practice of medicine. On the other hand, the

evidence they took these steps because of the content of his speech is slim to none, and no

reasonable factfinder could agree with Appellant’s theory of the case.

Professionalism Concern Card and the ASAC Letter

The first actions Appellant contends were adverse actions taken because of his

speech at the microaggressions panel were the Professionalism Concern Card submitted by

Dr. Kern and the ASAC Letter following up on the Concern Card. The district court

determined that neither action was an “adverse action” for First Amendment purposes and

19 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 20 of 57

that, regardless, Appellant could not show that UVA took either of these actions because

of Appellant’s protected speech.

The district court determined that the Concern Card and the ASAC Letter were not

adverse actions. An adverse action for First Amendment purposes is one that “may tend

to chill individuals’ exercise of constitutional rights.” Constantine, 411 F.3d at 500

(quoting ACLU of Md., Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir. 1993)). A

plaintiff asserting adverse action must show more than “de minimis inconvenience.” Id.

(citing ACLU of Md., 999 F.2d at 786 n.6). An action chills speech if it “would likely deter

‘a person of ordinary firmness’ from the exercise of Fourth Amendment rights.” Id.

(citations omitted). Whether an action chills speech is an “objective” analysis we conduct

“in light of the circumstances presented in [a] particular case.” The Baltimore Sun Co. v.

Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006).

As to the Concern Card, the district court held it was not an adverse action because

it had no punitive effect on its own, independent of the ASAC’s review, and because

Appellant was not even aware of the Concern Card until after he had been banned from

UVA. The district court held the Concern Card was “a referral for another party to consider

discipline that [Appellant] did not know about.” Bhattacharya v. Murray, No. 3:19-cv-

00054 (W.D. Va. July 21, 2022), ECF No. 487, at 11–12. And the district court held that

the ASAC Letter did not impose or threaten consequences of sufficient severity to qualify

as an adverse action.

20 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 21 of 57

We agree that the Concern Card was not an adverse action. The Concern Card was

a routine documentation that had no punitive effect on its own. We have held that even

more severe actions than the Concern Card were insufficient for First Amendment

purposes. See Suarez Corp. Indus., 202 F.3d at 686 (“[C]ourts have declined to find that

an employer’s actions have adversely affected an employee’s exercise of his First

Amendment rights where the employer’s alleged retaliatory acts were criticisms, false

accusations, or verbal reprimands.”) (citations omitted).

We also agree that the ASAC Letter was not an adverse action. “[W]here a public

official’s alleged retaliation is in the nature of speech, in the absence of threat, coercion, or

intimidation intimating that punishment, sanction, or adverse regulatory action will

immediately follow, such speech does not adversely affect a citizen’s First Amendment

rights, even if defamatory.” Suarez Corp. Indus., 202 F.3d at 687. We do not regard the

ASAC Letter as threatening, coercing, or intimidating Appellant, or as holding punishment

over him. The ASAC Letter merely observed that Appellant was unnecessarily

antagonistic, reminded him that people may have different opinions as long as they express

them appropriately, and encouraged him to develop the skills of showing mutual respect to

his colleagues. Thus, the ASAC Letter was not an action which would chill the speech of

a person of ordinary firmness and did not violate Appellant’s First Amendment rights. 8

8 The same is true of the November 14 vote to reprimand Appellant, which was the basis for the November 15 ASAC Letter. See Suarez Corp. Indus., 202 F.3d at 686 (“[C]ourts have declined to find that an employer’s actions have adversely affected an employee’s exercise of his First Amendment rights where the employer’s alleged (Continued) 21 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 22 of 57

The district court also determined that Appellant could not make the causal link as

to the Concern Card because it said “nothing about the content of [Appellant’s] speech—

only that he was ‘antagonistic’—and that Dr. Kern was worried about how [he] would do

on wards.” J.A. 1328 (internal alterations and quotation marks omitted).

For context, Concern Cards are forms for faculty to document observed

professionalism issues with a UVA medical student. See J.A. 641 (“Praise/Concern Cards

and written narratives are assessment tools used to describe behaviors in areas of altruism;

honesty and integrity; caring, compassion and communication; respect for others; respect

for differences; responsibility and accountability; excellence and scholarship; leadership

and knowledge and other skills related to professionalism.”); id. (“Any breach of

professionalism resulting in a recorded observation, e.g., Professionalism Concern

Card . . . must be addressed with the student by his/her college dean and documentation of

the discussion must be recorded.”); see also Bhattacharya v. Murray, No. 3:19-cv-00054

(W.D. Va. July 21, 2022), ECF No. 487, at 11 (“[T]he professionalism concern card had

no punitive effect in itself; it was simply a referral to a committee to consider further

punitive action . . . .”).

But in any case, as the district court properly noted, Dr. Kern’s Concern Card did

not target the content of Appellant’s expression, only the manner of his delivery. See J.A.

retaliatory acts were criticisms, false accusations, or verbal reprimands.”) (citations omitted).

22 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 23 of 57

753 (“I am shocked that a med student would show so little respect toward faculty

members. It worries me how he will do on wards.”). Indeed, Dr. Kern’s emails with Dean

Peterson make quite clear that the concern was not with Appellant’s expressed views but,

instead, with his tone and demeanor:

I more was curious where this anger/frustration was coming from; he was talking so fast, I wasn’t even sure what he was saying exactly or asking. But if he handles himself in that kind of manner on the wards, that is not acceptable behavior.

J.A. 756 (emphasis supplied). It was these thoughts that found their way into the Concern

Card, which manifestly deals with Appellant’s unprofessional behavior, not the content of

his speech.

The same is true of the ASAC Letter. This letter grew out of the Concern Card

because Dean Densmore asked the ASAC to consider the Concern Card as evidence of

Appellant’s “extreme professionalism lapse.” J.A. 759. The ASAC did consider that lapse

which culminated in the ASAC Letter being sent to Appellant:

The [ASAC] has received notice of a concern about your behavior at a recent AMWA panel. It was thought to be unnecessarily antagonistic and disrespectful. Certainly, people may have different opinions on various issues, but they need to express them in appropriate ways. It is always important in medicine to show mutual respect to all: colleagues, other staff, and patients and their families. We would suggest that you consider getting counseling in order to work on your skills of being able to express yourself appropriately.

J.A. 765 (emphases supplied). Plainly this letter dealt with Appellant’s “behavior,” not

with the content of his speech, the validity of which the ASAC expressly granted:

“Certainly, people may have different opinions on various issues, but they need to express 23 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 24 of 57

them in appropriate ways.” Id.; see also Davison, 19 F.4th at 637 (affirming summary

judgment when a no trespass order was instituted not because “of a causal relationship

[with] his protected speech” but because of “threats and antagonistic behavior”).

Accordingly, we agree with the district court that neither the ASAC Letter, nor the

Concern Card that prompted it, were adverse actions caused by Appellant’s speech.

Psychiatric Evaluations

As discussed above, Appellant had two psychiatric evaluations, one on November

14, 2018, and another on November 19, 2018. The district court found no material

evidence indicating Appellant was subjected to these evaluations because of his protected

speech. Appellant contends this was error. He argues that his views led to the evaluations

because Dr. Kern’s description of Appellant’s “antagonis[m] toward the panel” “found its

way into . . . the November 14, 2018 [evaluation] . . . [and] the November 19 [evaluation].”

Opening Br. at 42–43. This contention is belied by the record.

November 14 Psychiatric Evaluation

The November 14 evaluation took place after Appellant met with Dean Densmore

to discuss Appellant’s failing grade in hematology. The district court determined that

Appellant’s “behavior during the meeting caused Dean Densmore to become concerned

about [Appellant’s] mental health,” so Dean Densmore asked Appellant either to “consult

with his private psychiatrist or go to [CAPS] for evaluation.” J.A. 1317. The clinicians at

CAPS evaluated Appellant, and based upon his behavior, they “petitioned for an

24 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 25 of 57

emergency custody order, which was granted, and University Police escorted [Appellant]

to the UVA Medical Center,” where he was admitted and held until November 16, 2018.

Id.

The record indicates that when Dean Densmore insisted that Appellant seek

evaluation on November 14, it was out of concern for “[Appellant’s] health” and his

“behavior,” not his speech. S.J.A. 40. More specifically, according to the CAPS notes at

intake, Dean Densmore had taken Appellant to CAPS for the following reasons:

“[Appellant] failed 2 of his last 3 exams; [he] attended a panel regarding microaggressions

and many concerns were raised by the panelists and others in attendance that [Appellant]

was confrontational; his girlfriend recently broke up with him because of his behavior,

describing him as paranoid (she was adamant that there were no safety concerns);” 9 “he

has not been sleeping; and he is smoking an increased amount of marijuana.” J.A. 2620.

Dean Densmore gave Appellant the choice whether to consult with a private psychiatrist

or walk with him to CAPS, and Appellant walked to CAPS with Densmore. Id.

The clinicians at CAPS who evaluated Appellant agreed with Dean Densmore’s

insistence that Appellant seek treatment, so much so that they concluded he might be

“experiencing a manic episode” with “delusions and paranoia,” that he did not seem

“connected to reality or able to function currently in daily activities,” and that he was “at

9 The November 14 evaluation took place before Appellant’s ex-girlfriend expressed her safety concerns which led to the order of protection.

25 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 26 of 57

risk of decompensating.” J.A. 2621–22. And the CAPS clinicians recommended that

Appellant be committed

[d]ue to [his] refusal to comply with treatment recommendation or allow for his treating provider to be notified, risk that his symptoms are worsening and could further decompensate, evidence of potential delusions or paranoia, and concern that he is not connected to reality or able to function currently in daily activities based on symptoms.

Id. at 2622. Appellant was thus referred to the emergency department at UVA Medical

Center for inpatient psychiatric hospitalization where he was diagnosed with “Bipolar I

disorder, manic, with psychotic features, with cannabis use disorder.” Id. at 665.

Given all of this, no reasonable factfinder would conclude that Dean Densmore

asked Appellant to seek treatment on November 14, 2018, because of his views on

microaggressions, as opposed to his manic episode and escalating string of worrying

behavior.

November 19 Psychiatric Evaluation

The November 19 evaluation occurred after Appellant returned to meet with Dean

Densmore again following his November 16 discharge from hospitalization. Appellant’s

behavior again caused Dean Densmore concern, so he contacted a colleague who, in turn,

contacted police. The police intercepted Appellant as he was leaving the building. At that

time, there was already an emergency custody order for Appellant based on his mother’s

petition filed the same day, November 19. As a result, police took Appellant into custody,

and transported him to the emergency department at UVA Medical Center. And the

26 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 27 of 57

municipal court issued a temporary detention order for Appellant. He was released on

November 26, 2018.

Again, the record makes clear that Appellant was treated and eventually hospitalized

not because of protected speech, but because his behavior gave Dean Densmore and the

physicians who treated Appellant cause for concern. Dean Densmore testified in his

deposition that during the meeting Appellant paced back and forth in front of Dean

Densmore’s desk, spoke to him in an accusatory manner, demanded to see his medical

license, and told him he needed to watch himself. Once Appellant had been taken by police

to the emergency department at UVA Medical Center, clinicians again agreed with Dean

Densmore regarding Appellant’s behavior. The treating physician stated:

I recall him and -- and recall my observations to be such that he was, indeed, anxious, had a labile mood and affect, was angry that he was in the emergency department. His speech was rapid and pressured. He did appear to be agitated and was acting aggressive and hyperactive. We were concerned about him potentially becoming combative due to his anger and aggression. We thought his thought content to be paranoid at times. We did not find his thought content to have any delusional components to that. We did think his -- his cognition and -- and memory were normal at the time insofar that he was not, at the time, having any sort of clear evidence of memory loss. He was acting impulsive with inappropriate judgment and did not necessarily endorse homicidal and suicidal ideation.

J.A. 796. The notes from Appellant’s admission to the emergency department reflect that

involuntary commitment was recommended due to Appellant’s “presentation of mania

27 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 28 of 57

symptoms, poor judgment, lack of insight into situation, irritability, and inability to care

for self.” S.J.A. 108.

Thus, while there is strong evidence, both from Dean Densmore and from the

practitioners who treated Appellant on November 19, that Appellant’s condition was such

that he needed psychiatric treatment, there is no evidence that he was compelled to seek

such treatment because of the views he expressed during the microaggressions panel.

Significantly, November 19 was the same day that Appellant’s mother sought an

order to have him involuntarily committed, in part because he “got inches from [her] face

screaming and pounding fists toward [her] so that [she] felt . . . in imminent harm.” J.A.

785–790. And it was also the same day Appellant’s ex-girlfriend, also a medical student

at UVA, sought Dean Peterson’s help obtaining a protective order against Appellant.

Accordingly, no reasonable factfinder would conclude that Appellant was

compelled to undergo psychiatric evaluation on because of his speech, as opposed to his

behavior and mental condition.

Clearance Requirement After Hospitalization

Next, Appellant contends that when Appellees required him to undergo a psychiatric

evaluation before returning to campus after his second involuntary committal, they were

retaliating against him for the views he expressed during the microaggressions panel. The

district court rejected this proposition, noting that (1) “the required health evaluation was

pursuant to a neutral policy,” J.A. at 1327, which applied to anyone returning from a health-

related absence for two days or more; and (2) the requirement was “minimally invasive”

28 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 29 of 57

and understandable within the context given Appellant’s history, id. (citing Couch v. Bd.

of Trustees of Mem’l Hosp., 587 F.3d 1223, 1240 (10th Cir. 2009)).

Appellant notes that both Dr. R.J. Canterbury, a UVA faculty member not named in

this case, and Dean Densmore emailed him to tell him he was required to meet with CAPS

before returning to campus. While Dr. Canterbury and Dean Densmore purported to

require as much pursuant to the UVA policy, there is no evidence whatsoever that they did

so in order to retaliate against Appellant for his views on microaggressions. Indeed, the

emails Appellant points to wherein Dr. Canterbury and Dean Densmore advise him of the

UVA policy say nothing about Appellant’s speech. Rather, the only evidence is from Dr.

Canterbury’s internal email to others, including Dean Densmore, in which Dr. Canterbury

noted that Appellant claimed he was being retaliated against for First Amendment

expression.

Thus, Appellant has provided no evidence that he was required to get medical

clearance before returning to class because of his views expressed during the

microaggressions panel, as opposed to his having been hospitalized with mania, psychosis,

etc. 10

As with the Professionalism Concern Card and the ASAC Letter, the district court 10

determined that requiring Appellant to be medically cleared before returning to campus was not an “adverse action” for First Amendment purposes. We do not address whether medical clearance was or was not an “adverse action” for First Amendment purposes, confining our analysis to whether Appellant’s speech during the microaggressions panel caused this requirement. It did not.

29 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 30 of 57

The ASAC Suspension

Next, Appellant contends the district court erred in holding there was not a triable

question whether he was suspended because of his protected speech during the

microaggressions panel. On appeal, Appellant theorizes that the ASAC voted to hold a

meeting regarding Appellant’s conduct -- and ultimately suspend him -- at the request of

Drs. Canterbury and Peterson, who, Appellant contends, had it out for him because of his

expressed views on microaggressions. See Opening Br. at 39 (asserting the ASAC

“apparently relied on what individuals like Canterbury [and] Peterson were telling them

they should do”). We turn back to the record to determine whether any material evidence

supports Appellant’s position. Again, it does not.

As to Dr. Canterbury, who is not a named defendant in this case, Appellant

apparently believes Dr. Canterbury was motivated to retaliate against Appellant because

he disagreed with what Appellant said during the microaggressions panel. Appellant

attempts to make this connection by pointing to communications Dr. Canterbury received

from students who were complaining about Appellant’s conduct during the panel.

Specifically, these students submitted reports via “Listening Post,” an online portal for

UVA students to submit reports about mistreatment or unprofessional conduct. The

students took issue with Appellant’s tone and behavior, which they called “extremely

disrespectful, unprofessional and condescending,” J.A. 1067, and “very disrespectful to the

panelists in his tone and manner of questioning,” id. at 1085. On their face, these posts do

not address Appellant’s views, but even if they did, they were merely forwarded to Dr.

30 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 31 of 57

Canterbury, prompting general observations on his part. See id. at 1066 (“Has he been the

subject of an ASAC discussion?”); id. at 1084 (“I have heard about this in general from

students and will follow up.”). The district court held these student complaints could not

have caused adverse actions against Appellant, because there is no evidence Appellees

relied upon these complaints in their decision making, and the other students are not

defendants.

Appellant submits on appeal that the student complaints caused adverse action

against him because Dr. Canterbury “hauled him in” before the ASAC based on the

complaints. See Opening Br. 43–44 (“Canterbury, Peterson, Reed, and others all acted

upon and relied upon such student complaints. Reed even directed a student to submit a

complaint to the ‘Listening Post[.]’”). In fact, at oral argument, when Appellant’s counsel

was asked repeatedly to point to any record evidence that Appellant’s views caused adverse

action, counsel could point only to these student complaints, arguing that Dr. Canterbury

“adopted” them. Oral Argument at 4:30, Bhattacharya v. Murray, No. 22-1999(L), 22-

2065 (4th Cir. Oct. 24, 2023), https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-

arguments (hereinafter “Oral Argument”).

However, there is simply no evidence that Dr. Canterbury orchestrated retaliation

against Appellant because he agreed with students who took issue with Appellant’s views

at the faculty panel. Dr. Canterbury did not even attend the panel. And Appellant admits

that “[Dr.] Canterbury never listened to what [Appellant] actually said on October 25,

2015,” a fact that gravely undermines the argument that Dr. Canterbury struck out against

Appellant because of his views. Opening Br. at 10. At best, Appellant has cited a single

31 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 32 of 57

email where, in response to a description primarily of Appellant’s behavior at the

microaggressions panel, Dr. Canterbury asked if Appellant “[h]as been the subject of an

ASAC discussion[.]” J.A. 1066–67. In another email, responding to a student portal post

objecting to Appellant’s “very disrespectful . . . tone and manner of questioning,” Dr.

Canterbury said, “I have heard about this in general from students and will follow up.” Id.

at 1084.

Most tenuous of all, Appellant attempts to link Dr. Canterbury to alleged adverse

actions through a Twitter (now known as X) post in which Dr. Canterbury complained

about the lack of professionalism demonstrated by United States Senator Mitch McConnell

during Justice Brett Kavanaugh’s confirmation hearings. Curiously, this tweet was one of

the only places in the record Appellant’s counsel could point to during oral argument in

attempt to support the assertion that Dr. Canterbury violated Appellant’s First Amendment

rights. Oral Argument at 2:50, 4:10. But, critically, the tweet does not even mention

Appellant. 11

Appellant also cites an email from Dr. Canterbury to Dr. Jim Tucker ostensibly to

indicate retaliation against Appellant in violation of the First Amendment. The email

indicates nothing of the sort. In entirety, it states:

Can you call an emergency meeting of the ASAC to discuss a student, Kieran Bhattacharya, who has been hospitalized for

11 The dissent notes that Dr. Canterbury emailed a colleague about Appellant’s “unprofessional behavior” during 2016 post-election town halls. Post at 47–48. And Appellant submits that Dean Peterson brought up Appellant’s views about the 2016 election during a meeting. Id. at 47. But there is no evidence that this behavior, or anything having to do with the 2016 election, contributed to UVA’s decisions related to Appellant.

32 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 33 of 57

psychotic mania twice in the past two weeks and was released yesterday. He is still manic and has been intimidating John Densmore-to the point that John had to have him taken from his office by police a week ago. John has all the details. I have used my emergency authority to tell him that he cannot return to the learning environment until he has been cleared by CAPS but that authority has time limits, of course. He is insisting on returning to class today-which is what I have forbidden. He’s still quite manic and likely psychotic.

J.A. 828. All Dr. Canterbury said in this email was what Appellees have said all along --

they took action against Appellant because of his conduct, not his speech.

Appellant also argues that Dean Peterson initiated the ASAC meeting or compelled

its members to vote to suspend him. But yet again, Appellant has provided no evidence to

support his assertion. Dean Peterson’s emails with Dr. Kern following the

microaggressions panel clearly reflect that they were not at all concerned with the content

of Appellant’s colloquy with the panel, but, rather, with his delivery. See J.A. 757

(initiating chain with email referencing “the student who asked the first questions and was

extremely unprofessional”; “that kind of behavior should be brought up at ASAC”); id. at

756 (“[H]e was talking so fast, I wasn’t even sure what he was saying exactly or asking.

But if he handles himself in that kind of manner on the wards, that is not acceptable

behavior.”).

Appellant cites other evidence in the record ostensibly to demonstrate that Dean

Peterson retaliated against him for his views during the microaggressions panel. However,

the record supports the opposite conclusion. It was not about his views. It was about his

delivery. For example, during her deposition, Dean Peterson consistently testified her

intention to communicate to Appellant “that he needs to learn the skills how to bring up . . . 33 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 34 of 57

even opposing ideas, in many different settings, without being rude and disrespectful to the

-- to the speaker whose ideas he is challenging.” J.A. 1042.

All told, contrary to Appellant’s arguments, the substance of the ASAC meeting to

discuss Appellant’s enrollment status, which led to his suspension, was not about his

speech during the microaggressions panel. Despite Appellant’s repeated efforts to raise

that speech during the ASAC meeting, Dr. Tucker, the administrator who led the meeting,

repeatedly noted the meeting was about Appellant’s behavior. The minutes from the

ASAC meeting reflect that the committee was “convened to discuss concerning behavior

exhibited by” Appellant. S.J.A. 80 (emphasis supplied). Following the meeting, the

committee resolved that Appellant failed the school’s technical standards, “especially the

Emotional, Attitudinal and Behavioral Skills.” Id. And the declarations of the voting

ASAC members confirm Appellant’s views were not considered. J.A. 939, 944, 949, 955,

962, 968, 973.

Finally, the suspension letter that the ASAC sent Appellant the day after the ASAC

meeting cited as grounds for his suspension “aggressive and inappropriate interactions in

multiple situations, including in public settings, during a speaker’s lecture, with [Dean

Densmore], and during the committee meeting [on November 28]”; this conduct

“constituted a violation of the School of Medicine’s technical standards.” J.A. 1319.

At bottom, the evidence points overwhelmingly to Appellant’s conduct, not his

expression as the basis for his suspension.

34 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 35 of 57

No Trespass Order

As with the suspension, the district court determined that Appellant had failed to

identify a triable issue as to whether Appellees procured a No Trespass Order from the

university police department to retaliate against him for views he expressed during the

panel discussion which occurred two months earlier. Appellant contends that the link

between that speech and the NTO is “[Dr.] Canterbury,” who, Appellant contends, was

biased against Appellant because of his views, and who also insisted “upon the NTO and

the UVA Police . . . issuing it based on the alleged online threats made by [Appellant].”

Opening Br. at 13.

The evidence is emphatically contrary to Appellant’s theory. The university police

possessed sole authority to issue the No Trespass Order, and they issued it for several well

founded reasons. First, Appellant’s girlfriend had taken out a protective order against him

for fear of her own safety, citing texts in which he said, “i dont love you and sincerely hope

that you kill yourself in the near future,” J.A. 2692, and because he had surreptitiously

moved a shovel into his bedroom. 12 Second, Appellant had told Dean Densmore to “watch

himself,” which the dean perceived as a threat. And third, Appellant had posted photos of

12 The officer who issued the No Trespass Order testified she issued it primarily to protect Appellant’s girlfriend, a student at the medical school. As discussed further below, Appellant disputes the credibility of his ex-girlfriend, arguing that she conspired with UVA administrators to have Appellant expelled because she was bitter that he broke up with her. That matters little for purposes of the First Amendment claim; the point is that UVA Police issued the NTO against Appellant for reasons unrelated to protected speech.

35 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 36 of 57

the ASAC members to 4chan, claiming they were punishing him for his views of

microaggressions -- “These are the f[***]ots ruining my life,” id. 1181 -- and the post

provoked several threatening responses, see S.J.A. 31 (“We really need someone like you

to snap and take these white traitors out.”); id. at 32 (“OP, march in there with a gun and

shoot the biggest f[***]ts in the room. make sure to shoot dead every single bastard that is

out to ruin your life and save others from going through the same.”).

In attempt to support his position, Appellant points to the NTO itself, arguing Dr.

Canterbury was instrumental in procuring it. But the NTO does not so much as mention

Dr. Canterbury. However, a related incident report does mention Appellant’s post to “an

alt-right web site/ chat room.” J.A. 1177. Appellant posits that this reference must mean

Dr. Canterbury was operating behind the scenes because in a separate email, Dr.

Canterbury mentioned to a faculty member that Appellant had wandered into an Alt-Right

chatroom (which he had). That is no connection at all.

Appellant further notes Dr. Canterbury emailed UVA medical students about

“disturbing online posts” “that Canterbury attributed to [Appellant].” Opening Br. at 13.

None of this provides support for Appellant’s theory that Dr. Canterbury was retaliating

against Appellant for the views he expressed on microaggressions. First of all, Dr.

Canterbury was correct. The online posts are disturbing. Second, the university police

were well within their authority to issue the NTO based on Appellant’s disturbing posts

and the threats that ensued as a result.

The record indicates conclusively that police issued the NTO to protect UVA’s

students and faculty based upon multiple reports of Appellant’s threatening conduct toward

36 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 37 of 57

his mother and girlfriend; after multiple psychiatric evaluations precipitating involuntary

hospitalizations; and after Appellant posted on 4chan a photo of faculty members with the

caption, “These are the f[***]ots ruining my life,” which post prompted a thread of

responses, some antisemitic, many racist, and some explicitly violent.

“The right to communicate is not limitless.” Lovern v. Edwards, 190 F.3d 648, 656

(4th Cir. 1999). In Lovern, we held, “School officials have the authority to control students

and school personnel on school property, and also have the authority and responsibility for

assuring that parents and third parties conduct themselves appropriately while on school

property.” Id. at 655 (citing Carey v. Brown, 447 U.S. 455, 470–71(1980); Goss v. Lopez,

419 U.S. 565, 582–83 (1975)). This concept applies equally to public universities like

UVA. Where, as here, administrators take steps to protect their faculty and students based

upon a pattern of conduct unrelated to protected speech, we see no First Amendment

violation. See Davison, 19 F.4th at 637 (“Davison has not sufficiently provided evidence

to prove that the no-trespass ban was issued because of his protected speech, as opposed to

his threats and antagonistic behavior.”).

While the First Amendment surely empowers Appellant to offer his views in

appropriate ways, it is not unfettered. The evidence here overwhelmingly points to the

conclusion that UVA administrators, through reasoned judgment, determined that

Appellant should be disqualified from maintaining his status as a UVA medical student

due to his pattern of confrontational and threatening behavior. The district court rightly

held that no reasonable jury could find otherwise.

37 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 38 of 57

We agree and affirm. 13

Denial of Leave to Amend: Conspiracy Claims

The district court denied Appellant leave to amend his complaint to add a claim of

civil conspiracy because the proposed amendment would have been futile for two reasons.

First, though Appellant sought to add his ex-girlfriend to the lawsuit, a medical student at

UVA, he had no plausible claim that she shared with UVA administrators an “illegal

objective,” nor that she committed any tortious conduct that would sustain a claim against

her. And second, the district court held Appellant could not bring a conspiracy claim

against UVA administrators because, pursuant to Virginia’s intracorporate conspiracy

doctrine, school officials cannot conspire with each other.

Appellant contends on appeal that these holdings were erroneous. He contends that

his ex-girlfriend and Appellees collaborated, and that he adequately alleged that individual

administrators had an independent personal stake in retaliating against him such as would

undermine the intracorporate conspiracy doctrine. We agree with the district court.

First, the court correctly rejected Appellant’s proposed amendment to add his ex-

girlfriend as a defendant. Conspiracy claims under both federal and Virginia common law

require Appellant to allege joint action in furtherance of some wrongful scheme. The

13 Because Appellant has failed to create a genuine issue that any constitutional violation occurred, we do not reach the question of qualified immunity.

38 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 39 of 57

Country Vintner, Inc. v. Louis Latour, Inc., 634 S.E.2d 745, 751 (Va. 2006) (“A common

law conspiracy consists of two or more persons combined to accomplish, by some

concerted action, some criminal or unlawful purpose or some lawful purpose by a criminal

or unlawful means.”); Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996) (“To

establish a civil conspiracy under § 1983, Appellants must present evidence that the

Appellees acted jointly in concert and that some overt act was done in furtherance of the

conspiracy which resulted in Appellants’ deprivation of a constitutional right.”). And

Virginia courts have long required of conspiracy allegations “that there was a common

understanding and a common design.” Ratcliffe v. Walker, 85 S.E. 575, 579 (Va. 1915).

But, here, Appellant failed to allege “that [his girlfriend] did anything wrongful or

tortious, as is required to state a claim for civil conspiracy.” J.A. at 373–74 (citing Dunlap

v. Cottman Transmission Sys., LLC, 754 S.E.2d 313, 317 (Va. 2015)); see also Almy v.

Grisham, 639 S.E.2d 182 (Va. 2007) (“[A] common law claim of civil conspiracy generally

requires proof that the underlying tort was committed.”); Blevins v. Mills, 106 Va. Cir. 297

(2020) (“Where there is no actionable claim for the underlying alleged wrong, there can be

no action for civil conspiracy based on that wrong.”).

In any event, since we hold Appellees did not violate the First Amendment, even if

Appellant’s ex-girlfriend had committed some tort to that end, the conspiracy count would

still fail inasmuch as there was no underlying deprivation of rights to sustain the

conspiracy. See Dunlap, 754 S.E.2d at 317 (“[C]onspiracy allegations do not set forth an

independent cause of action; instead, such allegations are sustainable only after an

underlying tort claim has been established.”).

39 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 40 of 57

Appellant also sought to add a claim that several UVA faculty members had

conspired to have him kicked out of UVA for exercising his First Amendment rights. The

district court rejected Appellant’s proposed amendment. Under the intracorporate

conspiracy doctrine, “an agreement between or among agents of the same legal entity,

when the agents act in their official capacities, is not an unlawful conspiracy.” Ziglar v.

Abbasi, 137 S. Ct. 1843, 1867 (2017); Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342,

352 (4th Cir. 2013) (“The intracorporate conspiracy doctrine recognizes that a corporation

cannot conspire with its agents because the agents’ acts are the corporation’s own.”). There

is an exception to this rule when an “officer has an independent personal stake in achieving

the corporation’s illegal objective.” Greenville Pub. Co. v. Daily Reflector, Inc., 496 F.2d

391, 399 (4th Cir. 1974); see also ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir.

2002) (holding the exception “applies only where a co-conspirator possesses a personal

stake independent of his relationship to the corporation”). 14

Appellant attempts to skirt the intracorporate conspiracy doctrine by invoking the

exception for an independent personal stake on the part of Dean Peterson. Appellant argues

that Dean Peterson acted outside the scope of her official duties in signing a letter to support

Appellant’s girlfriend’s application for an emergency protective order against Appellant.

As the district court noted, however, Appellant “failed to allege in his proposed [complaint]

14 Virginia has not yet recognized the independent personal stake exception. Because we hold Appellant has not carried his burden to show an independent personal stake, we assume without deciding that Virginia might apply such an exception.

40 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 41 of 57

that [Dr.] Peterson’s letter was outside of [her] duties, or make any allegation regarding the

letter at all.” J.A. 374. Regardless of Appellant’s failure to make this allegation in his

proposed complaint, the evidence shows Dean Peterson acted well within the scope of her

duties in helping a UVA medical student obtain a protective order against Appellant. As

the dean on call, Dean Peterson had a responsibility to handle crisis management. This

court and the Supreme Court of Virginia have observed that administrators “have

obligations . . . to protect their students.” Abbott v. Pastides, 900 F.3d 160, 173 (4th Cir.

2018); Burns v. Gagnon, 727 S.E.2d 634, 643 (Va. 2012). Dean Peterson performed that

obligation within the scope of her duties.

Additionally, we find neither error nor abuse of discretion in the district court’s

refusal to reopen this issue pursuant to 28 U.S.C. § 636(b)(1) to consider evidence

uncovered during discovery. Appellant asserts that, when the district court was considering

the magistrate judge’s recommendation to deny leave to amend, the district court should

have considered the letter Dean Peterson wrote on Appellant’s ex-girlfriend’s behalf to

help obtain a restraining order. This letter, Appellant contends, was produced during

discovery but before the district court ruled on the motion for leave to amend.

We reject this contention. If anything, the evidence only contradicted Appellant’s

theory of a conspiracy to violate his constitutional rights and of an independent personal

stake on the part of Dean Peterson. The evidence indicated no causal link between

Appellant’s protected speech and Appellees’ actions. Rather, it proved Appellees

sanctioned Appellant due to his unprofessional conduct, not his speech. And the evidence

indicated Dean Peterson carried out her duties as dean on call to protect a UVA student.

41 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 42 of 57

The district court was accordingly correct in rejecting Appellant’s proposed

amendment to add a conspiracy claim.

Dismissal: Due Process Claim

Finally, we turn to the third and final issue in this appeal, the district court’s

dismissal of Appellant’s due process claim. Appellant alleged that his due process rights

were violated because he was subject to a disciplinary removal from UVA, and a

disciplinary removal requires more process than he received. The district court disagreed,

holding Appellant was subject to discipline for failing to meet the essential academic

criterion of “professionalism.” Given this, the court held Appellant received adequate

process.

The Fourteenth Amendment’s Due Process Clause provides, “[N]or shall any State

deprive any person of life, liberty, or property, without due process of law . . . .” U.S.

Const. amend. XIV § 1. To succeed on his due process claim, Appellant must prove (1) a

cognizable “liberty” or “property” interest; (2) the deprivation of that interest by “some

form of state action”; and (3) that the procedures employed were constitutionally

inadequate. Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th

Cir. 2009) (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir.

1988)). While it is arguable whether Appellant has a property interest in continued

enrollment at UVA, the Supreme Court as well as this court have assumed without deciding

that such a property interest exists. See Regents of the Univ. of Mich. v. Ewing, 474 U.S.

214, 223 (1985); Tigrett v. Rector & Visitors of the Univ. of Va., 290 F.3d 620, 627 (4th

42 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 43 of 57

Cir. 2002). Therefore, we will assume without deciding that Appellant had such an interest.

Even so, Appellant was afforded adequate process.

Appellant argues the district court erred in determining his suspension and eventual

ban from UVA were academic, as opposed to disciplinary. And because Appellant

received only four hours’ notice of the ASAC hearing resulting in his suspension, and

because that hearing lasted only 28 minutes, he argues that he did not receive adequate

process. Appellant argues the same was true of the No Trespass Order banning him from

campus because he had no notice of it and no explanation of it until after the appeal

deadline.

The Due Process Clause does not require a “formal hearing” or “stringent

procedural protections” for academic dismissals as opposed to disciplinary action. Henson

v. Honor Comm. of Univ. of Va., 719 F.2d 69, 74 (4th Cir. 1983). We agree with the district

court that Appellant’s dismissal was not disciplinary, but academic, because the

professionalism concerns that the ASAC raised dealt with core competencies of UVA’s

curriculum for medical students. This court and the Supreme Court have held that

expulsions of medical students for lack of the professional competence required to practice

medicine are academic dismissals. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435

U.S. 78, 90 (1978) (holding student’s dismissal was academic in nature when school

determined she lacked “necessary clinical ability to perform adequately as a medical doctor

and was making insufficient progress toward that goal”); Halpern v. Wake Forest Univ.

Health Scis., 669 F.3d 454, 462 (4th Cir. 2012) (noting that “[i]n the context of due-process

challenges, the Supreme Court has held that a court should defer to a school’s professional

43 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 44 of 57

judgment regarding a student’s academic or professional qualifications”) (citing Horowitz,

435 U.S. at 92; Ewing, 474 U.S. at 225). And the Supreme Court has emphasized, “When

judges are asked to review the substance of a genuinely academic decision, . . . they may

not override it unless it is such a substantial departure from accepted academic norms as to

demonstrate the person or committee responsible did not actually exercise professional

judgment.” Ewing, 474 U.S. at 225.

The dissent questions whether UVA’s decision to suspend Appellant was “really an

academic decision,” or “perhaps [a decision] couched . . . as a matter of professionalism”

to avoid the complexities of addressing Appellant’s “obvious signs of mental illness . . .

head-on.” Post at 56. But UVA acted well within its authority in treating Appellant’s

behavior as a matter of professionalism, even if that behavior flowed from mental health

issues.

In Halpern, we approved a medical school’s dismissal of a student whose behavioral

issues prevented him from interacting professionally with patients and staff. 669 F.3d at

462–64. We emphasized that “we accord great respect to [the medical school’s]

professional judgments on these issues.” Id. at 463. We equated the deference owed to

the medical school as to a student’s professionalism and qualifications with the deference

owed “‘to evaluate academic performance.’” Id. (quoting Davis v. Univ. of N.C., 263 F.3d

95, 101–02 (4th Cir. 2001)). We observed that the medical school maintained

“professionalism []as an essential requirement.” Id.; see also id. (“[T]he Medical School

identified professionalism as a fundamental goal of its educational program, and it required

that students demonstrate professional behavior and attitudes prior to graduating.”). Thus,

44 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 45 of 57

the student’s dismissal was appropriate in view of his “treatment of staff both before and

after his medical leave,” “his behavior towards faculty,” and “instances of unprofessional

conduct reflected in his clinical evaluations.” Id. at 463–64. “Although, in isolation, these

may not have warranted [the student’s] evaluators giving him failing grades in

professionalism, the school reasonably considered them as part of an ongoing pattern of

unprofessional behavior.” Id. at 464. And all of this behavior flowed from a plaintiff who

concededly had mental health disabilities. Id. at 462 (“His ADHD and anxiety disorder

constitute disabilities giving rise to protection.”).

Here, like the medical school in Halpern, UVA had academic criteria of

professionalism specifically designed to ensure medical students could work effectively as

doctors. See J.A. 640 (“Professional attitudes and behaviors are components of the 12

Competencies Required of the Contemporary Physician that enable the independent

performance of the responsibilities of a physician and therefore are a requirement for the

successful award of the degree of Doctor of Medicine.”). It is thus clear that Appellant’s

suspension, and effective expulsion, for failure to meet the requirements of professionalism

was an academic dismissal. See Halpern, 669 F.3d at 463–64 (taking this view in the

disability accommodation context). And as in Halpern, we “accord great respect” to the

UVA’s professional judgments in that regard, even if Appellant’s behavior stemmed from

underlying mental health concerns. Id. at 463.

Given the academic nature of Appellant’s discipline, and affording appropriate

deference to the judgment of UVA administrators, the process Appellant received was

sufficient. Appellant had a hearing in which he was allowed to air his grievances at length,

45 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 46 of 57

and during which Appellees repeatedly explained to Appellant they were considering

taking action against him because of his behavior. To the extent Appellant complains the

grounds for discipline were not more thoroughly described during the hearing, or that the

hearing was too short, the reasons for both those issues are clear from the recording

Appellant himself took of the meeting: namely, that Appellant seized the floor at the outset

of the hearing and held it as long as he pleased.

As to the NTO, Appellant was afforded appropriate process given the dangers to

students and faculty perceived by university police. We have observed that students posing

“‘a continuing danger to persons or property or an ongoing threat of disrupting the

academic process may be immediately removed from school’ without a pre-deprivation

hearing.” See Davison, 19 F.4th at 642 (quoting Goss v. Lopez, 419 U.S. 565, 582 (1975)).

As in Davison, Appellant had notice by phone and in writing of the NTO, and he had the

opportunity to contest the NTO by appeal. Id. Given the risk of his disrupting academic

life at UVA, Appellant was afforded adequate process through the issuance of the NTO.

Therefore, we hold the district court properly dismissed Appellant’s due process

claim.

IV.

For all the above reasons, the district court’s award of summary judgment to

Appellees, denial of leave to amend, and dismissal of Appellant’s due process claim are

AFFIRMED.

46 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 47 of 57

QUATTLEBAUM, Circuit Judge, concurring in part and dissenting in part:

Courts rightly defer to the academic judgments of schools. And for good reason. We

are hardly equipped to micro-manage academic decisions outside our area of expertise. But

that general principle should not immunize actions cloaked in academic garb that are really

something else. Kieran Bhattacharya—a former University of Virginia Medical School

student—claims UVA used concerns about professionalism as a pretext to retaliate against

him for protected speech. And in my view, genuine disputes of material fact exist as to

whether he is right. So, I respectfully dissent in part. 1

UVA’s chapter of the American Medical Women’s Association sponsored a panel

discussion about microaggressions. During the event, a panel expressed their views on

microaggressions, generally describing unintentional or unconscious insults and statements

reflecting prejudice or stereotypes against a marginalized group. After the speakers

concluded their remarks, they invited questions and comments. Bhattacharya was the first

to speak. He asked four to five questions back-to-back. He also commented on the

panelists’ answers. His questions and comments reflected disagreement with the speakers.

He described one answer as “contradictory” to a slide used in the presentation. He labeled

one answer “extremely non-specific.” And he remarked that only a single “anecdotal case”

1 I take no issue with the district court’s order granting summary judgment as to UVA’s decisions after the vote to suspend Bhattacharya and as to his due process claim. I likewise see no reversible error in denying Bhattacharya’s motion to amend.

47 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 48 of 57

supported one presenter’s position. Even so, Bhattacharya did not violate any written or

stated guidelines about the question and comment session. Nor did he yell or make personal

attacks.

After the panel discussion, Dr. Nora Kern, who was a presenter at the panel and a

UVA medical school faculty member, emailed Dr. Christine Peterson, Assistant Dean of

Medical Education. After discussing Bhattacharya’s comments and behavior with Dr.

Peterson, who also attended the panel discussion, Dr. Kern filled out a Professionalism

Concern Card (“PCC”) and submitted it to Bhattacharya’s dean, Dr. John Densmore. Dr.

Kern described Bhattacharya’s questions as “quite antagonistic.” J.A. 459. She added that

he “pressed on and stated one faculty member was being contradictory” and that “[h]is

level of frustration/anger seemed to escalate.” J.A. 459. Dr. Kern concluded, “I am shocked

that a med student would show so little respect toward faculty members.” J.A. 459.

Dr. Densmore passed the PCC on to the Academic Standards and Achievement

Committee. But neither he nor Dr. Kern told Bhattacharya anything about the PCC.

After hearing from Dr. Kern, Dr. Peterson also emailed Bhattacharya. In that email,

she said that she “observed [his] discomfort with the speaker’s perspective on the topic” of

microaggressions. J.A. 165. In offering to meet with Bhattacharya, Dr. Peterson further

stated, “I think I can provide some perspective that will reassure you about what you are

and are not responsible for in interactions that could be uncomfortable even when that’s

not intended.” J.A. 165. Then, at their meeting, Bhattacharya claims that Dr. Peterson

brought up his prior comments about the 2016 election. And, after a colleague emailed

concerns raised by students about Bhattacharya’s criticism of the presenters at the

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microaggressions panel, Dr. R.J. Canterbury, Senior Associate Dean for Education at the

medical school, responded that Bhattacharya “exhibited unprofessional behavior twice in

the [2016] post-election town halls.” J.A. 1066. He added, “Now this.” J.A. 1066.

Just after the microaggressions panel discussion, Dr. Densmore also emailed

Bhattacharya “to check in and see how [he was] doing.” J.A. 168. They met a few days

later, but, like Dr. Peterson, Dr. Densmore did not tell Bhattacharya that a PCC had been

issued as a result of his questions and comments at the microaggressions discussion or that

he had sent the PCC to the Academic Standards and Achievement Committee.

Within a couple of weeks of Bhattacharya’s meetings with Dr. Peterson and Dr.

Densmore, the Academic Standards and Achievement Committee met to, among other

things, consider Bhattacharya’s PCC. No one told Bhattacharya about the meeting or gave

him an opportunity to be heard. Even so, the Committee voted to issue a letter of reprimand.

The letter stated, “The Academic Standards and Achievement Committee has received

notice of a concern about your behavior at a recent . . . panel. It was thought to be

unnecessarily antagonistic and disrespectful. Certainly, people may have different opinions

on various issues, but they need to express them in appropriate ways.” J.A. 465. The letter

continued, “We would suggest that you consider getting counseling in order to work on

your skills of being able to express yourself appropriately.” J.A. 465.

After the letter of reprimand, Bhattacharya’s mental health situation seemed to

deteriorate. His conduct became more erratic and aggressive. In fact, as the majority notes,

both UVA and Bhattacharya’s mother sought and obtained orders from local magistrate

judges requiring that Bhattacharya be taken into custody and hospitalized for emergency

49 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 50 of 57

treatment. What’s more, his ex-girlfriend obtained a protective order based on comments

he had made to her. And after he was released from the hospital, Bhattacharya was

aggressive in his interactions with Dr. Densmore.

The Academic Standards and Achievement Committee held another meeting, this

time to decide whether Bhattacharya should be suspended from school. While he received

no notice of the Committee’s earlier meeting, he got a little this time. The day of the

meeting, the medical school’s registrar emailed Bhattacharya advising him that the

Committee would meet that same day “to discuss [his] current enrollment status.” J.A. 481.

The email informed Bhattacharya, “You are invited to attend to share your insights with

the committee.” J.A. 481.

Despite the late and vague notice, Bhattacharya attended the meeting. During it, his

behavior was erratic. He was combative, even walking around the meeting room,

questioning the school officials and recording the events on his phone.

The Committee voted to suspend Bhattacharya. The next day, it sent Bhattacharya

a letter stating, “The Academic Standards and Achievement Committee has determined

that your aggressive and inappropriate interactions in multiple situations, including in

public settings, during a speaker’s lecture, with your Dean, and during the committee

meeting yesterday, constitute a violation of the School of Medicine’s [professionalism

standards].” J.A. 871. The letter advised Bhattacharya that the Committee “voted to

suspend [him] from school, effective immediately.” J.A. 871.

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Bhattacharya claims that, in retaliation for his comments at the microaggressions

panel, UVA violated his First Amendment rights by issuing the letter of reprimand and

then by suspending him. A plaintiff seeking to recover for First Amendment retaliation

must allege that (1) he engaged in protected First Amendment activity, (2) the defendants

took some action that adversely affected his First Amendment rights, and (3) there was a

causal relationship between the protected activity and the defendants’

conduct. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th

Cir. 2005). I will first consider Bhattacharya’s claim as to the letter of reprimand before

turning to his suspension.

The district court held that Bhattacharya’s speech at the panel discussion was

protected First Amendment activity. But it held that the Committee’s vote and resulting

letter of reprimand were not adverse actions—the second element of a First Amendment

retaliation claim—because they simply reminded Bhattacharya of the school’s professional

standards without threatening or imposing any “concrete consequences.” J.A. 1326. In

support of this conclusion, the court relied on our decision in Suarez Corporation

Industries v. McGraw, 202 F.3d 676 (4th Cir. 2000). And it is true that in that decision, we

held that a response by government officials that did not threaten, impose punishment or

sanctions, or intimidate did not adversely affect First Amendment rights for purposes of a

First Amendment retaliation claim. Id. at 690. But neither Suarez nor subsequent decisions

51 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 52 of 57

of the Supreme Court or our Court require an express threat in order to satisfy the adverse

action requirement. Indeed, after Suarez, we explained that “a plaintiff suffers adverse

action if the defendant’s allegedly retaliatory conduct would likely deter ‘a person of

ordinary firmness’ from the exercise of First Amendment rights.” Constantine, 411 F.3d at

500. In my view, there is, at a minimum, a genuine dispute of material fact as to whether a

student of ordinary firmness would be chilled from exercising his free speech rights if

immediately after doing so, he received a letter of reprimand from a faculty academic

standards committee calling his behavior “unnecessarily antagonistic and disrespectful,”

admonishing him to express his views “in appropriate ways” and suggesting he get

counseling. J.A. 465.

As to the third element—causation—the district court held that Bhattacharya had

“not unearthed even a scintilla of evidence that would demonstrate that Defendants took

any adverse action against him because of his protected speech.” J.A. 1330. I disagree.

There is no question that UVA reprimanded Bhattacharya because of what happened at the

microaggressions panel. The only question is whether there is a causal connection between

the content of his comments, the First Amendment activity, and UVA’s response, the

adverse action. 2 Constantine, 411 F.3d at 501.

UVA argues it reprimanded Bhattacharya based on the way he conducted himself.

And no doubt, the letter of reprimand describes Bhattacharya’s “behavior” as

2 Generally, such a plaintiff must show that, “but for” his protected speech, he would not have suffered the adverse action. See Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019).

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“unnecessarily antagonistic and disrespectful.” J.A. 465. But the way a school labels its

discipline cannot be dispositive. Otherwise, professionalism criticisms become fail-safe

tools to tamp down debate. No, a jury would reasonably look beyond labels to the actual

conduct of the parties when assessing an adverse action.

The most relevant evidence comes from the audio recording of the microaggressions

panel. Keep in mind that Bhattacharya’s behavior that led to the involuntary custody orders

and restraining order had not yet occurred. So, supposedly, the only behavior at issue to his

letter of reprimand is his conduct at the microaggressions panel. There, after being invited

to participate in open discussion, he expressed critical views on microaggressions and the

panel’s recommendations about them. He also questioned some of the panelists’

methodology. True, Bhattacharya’s questions and comments reflect passion and even some

frustration. But is that—especially during a Q & A session about a controversial topic on

a university campus—enough to issue a letter of reprimand calling his behavior

“unnecessarily antagonistic and disrespectful,” admonishing him to express his views “in

appropriate ways” and suggesting he get counseling? To me, there is enough evidence in

this record that a jury could conclude no. See Porter v. Bd. of Trustees of N. Carolina State

Univ., 72 F.4th 573, 595 (4th Cir. 2023) (Richardson, J., dissenting) (“dispute and

disagreement are integral, not antithetical, to a university’s mission”). A jury could

reasonably conclude that that UVA disguised its contempt for the content of Bhattacharya’s

speech by critiquing his professionalism.

Bhattacharya may not be able to convince a jury that he is right. But that is not our

standard. “Summary judgment cannot be granted merely because the court believes that

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the movant will prevail if the action is tried on the merits.” Jacobs v. N.C. Admin. Off. of

the Cts., 780 F.3d 562, 568 (4th Cir. 2015) (quoting 10A Charles Alan Wright et al., Federal

Practice and Procedure § 2728 (3d ed. 1998)). The court may grant summary judgment

only if it concludes that the evidence could not permit a reasonable jury to return a

favorable verdict for the nonmoving party. “Therefore, courts must view the evidence in

the light most favorable to the nonmoving party and refrain from weighing the evidence or

making credibility determinations.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d

651, 659 (4th Cir. 2018) (cleaned up). A court improperly weighs the evidence if it fails to

credit evidence that contradicts its factual conclusions or fails to draw reasonable

inferences in the light most favorable to the nonmoving party. Id. at 659–60. Construing

the evidence in the light most favorable to Bhattacharya, as we must, there is a genuine

dispute of material fact as to whether the letter of reprimand was an adverse action triggered

by the content of Bhattacharya’s speech. In my view, a reasonable jury could conclude that

UVA used its guidelines on professionalism to quiet dissenting views. I would let the jury

decide.

Bhattacharya also alleges UVA suspended him in retaliation for his comments about

microaggressions at the panel discussion. The district court, noting the defendants’

concession on this point, held that the suspension was an adverse action. But it reiterated

that the record contained no evidence that Bhattacharya was suspended because of the

content of his speech.

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Considering causation, the letter of suspension identified Bhattacharya’s conduct

“during a speaker’s lecture” as one of the examples of the “aggressive and inappropriate

interactions” that led to his suspension. J.A. 871. So, once again, the causation question is

whether UVA’s response to Bhattacharya’s questions and comments at the

microaggressions panel incident relates to what he said—content—or how he said it—

conduct. And, as already explained, there is a genuine dispute of material fact on that point

if we construe the evidence in the light most favorable to Bhattacharya.

But in fairness, despite those concerns, I might go along with my colleagues in the

majority on the suspension were it not for what seems so odd—and sad—about this case.

Bhattacharya suffered from mental illness even before the microaggressions panel. And by

the time of his suspension, the record indicates that—due to his mental illness—

Bhattacharya seemed to pose a potential threat to himself or others. At a minimum, by the

time of the suspension, he appeared to be in no position to continue as a medical school

student. Had UVA suspended Bhattacharya or taken other action based on his conduct that

led to the protective custody orders or protective orders, it would be hard to question such

decisions. The majority relies heavily on those decisions, and at oral argument, counsel for

UVA argued that this escalating and troubling conduct was the reason for the school’s

decisions. The problem in referring to this conduct, however, is that the school didn’t rely

on it in suspending Bhattacharya. In fact, the letter of suspension mentions only

Bhattacharya’s conduct at the panel discussion, in public settings, during meetings with

Dr. Densmore and before the Committee. See generally E.E.O.C. v. Sears Roebuck & Co.,

243 F.3d 846, 852-53 (4th Cir. 2001) (“the fact that Sears has offered different justifications

55 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 56 of 57

at different times for its failure to hire Santana is, in and of itself, probative of pretext”);

Lashley v. Spartanburg Methodist Coll., 66 F.4th 168, 177 (4th Cir. 2023) ( “A straight and

consistent line of explanation is more persuasive than one which wanders here, there, and

yonder.”)

Why radio silence on Bhattacharya’s obvious signs of mental illness?

Professionalism in medical schools and in the medical profession is, of course, important.

But is that really the issue here? It seems like UVA’s concerns were, or at least should have

been, about Bhattacharya’s mental health and his potential danger to himself or others. But

rather than identifying the real issues, UVA relied on professionalism. I realize that

addressing the real issues head-on might have been complicated. Doing so might have

implicated state or federal disability and discrimination laws. But if the real problems were

mental health—and all signals point that way—shouldn’t the school have addressed

Bhattacharya’s situation accordingly? Instead, perhaps coincidentally or perhaps

conveniently, it couched Bhattacharya’s suspension as a matter of professionalism, which

might require us to defer to UVA’s academic decisions. See Halpern v. Wake Forest Univ.

Health Sciences, 669 F. 3d 454, 462–63 (4th Cir. 2012).

Is this really an academic decision? “[W]e must take care ‘not to allow academic

decisions to disguise truly discriminatory requirements.’” Id. at 463 (quoting Zulke v.

Regents of the Univ. of Cal., 166 F.3d 1041, 1048 (9th Cir. 1999)). I worry that UVA and

its officials are trying to cloak the resolution of a situation involving serious issues of

mental health as a purely academic decision, perhaps to gain the advantage of the

deferential standard by which we review academic decisions.

56 USCA4 Appeal: 22-1999 Doc: 73 Filed: 02/26/2024 Pg: 57 of 57

Applying the well-settled summary judgment standard, there are genuine disputes

of material fact as to Bhattacharya’s First Amendment claims regarding UVA’s letter of

reprimand and suspension decision. As a result, I would vacate the district court’s order

granting summary judgment on those issues and remand the case for a jury trial.