UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________________
No. 99-30317 _______________________________
JOSEPH G. PASTOREK, II, M.D., Plaintiff-Appellant, v. MERVIN L. TRAIL, M.D.,ET AL, Defendants,
MERVIN L. TRAIL, M.D., ALLEN COPPING, D.D.S., SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, Defendants-Appellees. _______________________________
No. 99-31146 _______________________________
JOSEPH G. PASTOREK, II, M.D., Plaintiff-Appellant, v.
MERVIN L. TRAIL, M.D.,ET AL, Defendants,
CAROLYN ELKINS, SURVIVING SPOUSE AND EXECUTRIX OF THE ESTATE OF THOMAS E. ELKINS, M.D, Defendant-Appellee. _________________________________________________________________
Appeals from the United States District Court for the Eastern District of Louisiana, New Orleans Division (97-CV-3040-S) _________________________________________________________________ January 26, 2001 Before BARKSDALE AND BENAVIDES, Circuit Judges and VELA1, District Judge.
1 District Judge of the Southern District of Texas, sitting by designation.
1 PER CURIAM:2
This case arises out of the termination of Dr. Joseph G.
Pastorek (“appellant”) from the Louisiana State University
Medical School (“LSUMS”). Appellant was a tenured professor at
LSUMS in the Obstetrics-Gynecology Department. He specialized in
the treatment of high-risk pregnancies and, in addition to
teaching at LSUMS, appellant performed consultations on patients
referred to him by Dr. Annelle Blanchard (“Blanchard”), a local
obstetrician. In February of 1995, the East Jefferson General
Hospital held credentialing hearings to investigate allegations
that Blanchard was harming obstetrics patients by over-utilizing
high-risk procedures. Dr. Thomas E. Elkins (“Elkins”), chair of
the Obstetrics-Gynecology Department and appellant’s immediate
supervisor, encouraged appellant to stop participating in and
supporting Blanchard’s practices, but he refused.
On March 29, 1995, Elkins sent a formal letter of complaint
to LSUMS’s chancellor, Dr. Mervin L. Trail (“Trail”). In the
letter, Elkins recommended that Trail commence termination
proceedings against appellant on the ground that appellant
repeatedly refused to discontinue high-risk obstetric
consultations.
2 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
2 Trail informed appellant of the charges and provided him a
copy of Elkins’ complaint. Trail suspended appellant’s
obstetrics privileges but allowed him to continue teaching and
practicing gynecology. Trail appointed an ad hoc committee to
review the charges. This committee asked Dr. Gary Cunningham of
the Southwestern Medical Center to conduct an independent review.
Dr. Cunningham concluded that appellant engaged in “very
questionable obstetrical practices.” Based on Dr. Cunningham’s
conclusion, the committee recommended further investigation.
Trail requested an independent review by the American College of
Obstetricians and Gynecologists (“ACOG”). The ACOG found that,
of the nineteen consultations it reviewed, sixteen were
unsatisfactory because of inadequate documentation and two
clearly fell below the standard of care required of a physician.
Following the ACOG’s review, Trail terminated appellant’s
employment. Appellant appealed this decision to the Dean of
LSUMS, the LSUMS Standing Appeals Committee, and the President of
Louisiana State University. He lost each appeal but claims that
the hearings were biased against him. The LSU Board of
Supervisors(“LSU Board”) ratified the decision to terminate on
August 22, 1997.
Appellant filed suit under 42 U.S.C. §§ 1983 and 1985
against the LSU Board, Trail and President Copping in their
official capacities, Trail in his individual capacity and Elkins
3 in his individual capacity. Appellant seeks damages and
injunctive relief for violations of his due process rights under
the Fourteenth Amendment and his speech and association rights
under the First and Fourteenth Amendments. The district court
granted summary judgment in favor of the LSU Board and Chancellor
Trail and President Copping in their official capacities based on
Eleventh Amendment sovereign immunity. It granted summary
judgment in favor of Trail and Elkins in their individual
capacities based on qualified immunity. Appellant challenges
these grants of summary judgment.
I.
This Court reviews a grant of summary judgment de novo,
applying the same standard of review as the district court. See
Merritt-Campbell, Inc. v. RXP Products, Inc., 164 F.3d 957, 961
(5th Cir. 1999). Summary judgment is appropriate where there is
not a genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law. See id. This Court
makes all inferences and resolves all factual disputes in favor
of the non-movant. See id.
II.
The district court held that the Eleventh Amendment bars
appellant’s claims against the LSU Board. Appellant contends
that Eleventh Amendment immunity does not extend to state
agencies like the LSU Board. The Eleventh Amendment bars suits
4 in federal court by citizens of a state against their own state
or another state. U.S. CONST. amend. XI; Hans v. Louisiana, 134
U.S. 1, 11, 10 S.Ct. 504, 505 (1890). Further, a plaintiff
cannot avoid this sovereign immunity bar “by suing a state agency
or arm of a State” where the State is the real party in interest.
Richardson v. Southern University, 118 F.3d 450, 452 (5th Cir.
1997). This Court has recognized that “the majority of decisions
concerning the Eleventh Amendment status of state universities
have concluded the institutions were arms of the state” and
immune from suit. United Carolina Bank v. Board of Regents, 665
F.2d 553, 557 (5th Cir. Unit A 1982).
Six factors guide the determination of whether a university
board is immune from suit: (1) whether the state statutes and
case law characterize the agency as an arm of the state; (2) the
source of the funds for the agency; (3) the degree of local
autonomy the agency enjoys; (4) whether the agency is concerned
primarily with local, as opposed to state-wide problems; (5)
whether the agency has authority to sue and be sued in its own
name; and (6) whether the agency has the right to hold and use
property. See Delahoussaye v. City of New Iberia, 937 F.2d 144,
147 (5th Cir. 1991); Richardson, 118 F.3d at 452. In Richardson
v. Southern University, this Court determined that Southern
University’s Board of Supervisors was immune from suit under the
Eleventh Amendment because Louisiana law characterized the
5 university as an “arm of the state,” its funding comes from the
state, its autonomy is limited, its concerns are state-wide, and
the university must sue and be sued in the name of its Board of
Supervisors. Richardson, 118 F.3d. at 454-56.
Similarly, LSU is a state agency, see La. R.S. 36:642(B),
its funding comes from the state, see id. at 38:2436, its
autonomy is limited, see id. at 17:453, its concern is the
education of students across the state, and LSU cannot sue or be
sued in its own name, see id. at 17:335(A)(1), (6), (8), and (9).
Therefore, the LSU Board is an “arm of the state” that enjoys
Eleventh Amendment immunity, and the district court’s grant of
summary judgment on this issue was proper.
III.
The district court granted summary judgment in favor of
Trail and Copping in their official capacities on the ground that
the 11th Amendment bars appellant’s suit. The Eleventh Amendment
bars suit in federal court against state officials in their
official capacities when “the State is the real substantial party
in interest.” Ford Motor Co. v. Department of the Treasury, 323
U.S. 459, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). The State is
the real substantial party in interest where the judgment would
be satisfied out of the state treasury. See Voisin’s Oyster
House, Inc. v. Guidry, 799 F.2d 183, 188 (5th Cir. 1986). For
example, in Voisin’s Oyster House, Inc. v. Guidry, this Court
6 held that the Eleventh Amendment barred plaintiff’s claim against
the Secretary of the Louisiana Department of Wildlife and
Fisheries in his official capacity because the judgment, under
Louisiana law, would be satisfied out of the state treasury. Id.
As in Voisin’s Oyster House, a judgment against Trail or
President Copping in their official capacities must be paid out
of the state treasury under Louisiana law. See La. Const. art.
12, § 10; La. R.S. 13:5109B(2). This fact makes Louisiana the
“real substantial party in interest.” Guidry, 799 F.2d at 188.
Therefore, the Eleventh Amendment bars appellant’s claims against
Trail and Coping in their official capacities.
Furthermore, appellant’s 1983 claims for monetary damages
against Trail and Copping in their official capacities are barred
for an additional and independent reason. Section 1983
authorizes suit against a “person” to remedy civil rights
violations. See 42 U.S.C. § 1983. In Will v. Michigan
Department of State Police, the Supreme Court held that a state
employee acting in his or her official capacity is not a “person”
within the meaning of that term under section 1983. 491 U.S. 58,
71, 109 S.Ct. 2304, 2312 (1989). Here, appellant’s 1983 claim
for money damages is against two state employees, Trail and
Copping, in their official capacities. Therefore, summary
judgment on Appellant’s 1983 claims against Trail and Copping in
7 their official capacities was appropriate because they are not
“persons” under section 1983. See id.
IV.
Appellant contends that Trail and Elkins, in their
individual capacities, violated his constitutional rights (1) to
procedural due process, (2) to substantive due process, (3) to
free speech, and (4) by conspiring to violate these rights.
Trail and Elkins raised the defense of qualified immunity which
shields government officials from individual liability for civil
damages. See Coleman v. Houston Ind. School Dist., 113 F.3d 528,
532 (5th Cir. 1997). A public official loses qualified immunity
when (1) his actions violate a constitutional right, (2) that was
clearly established at the time of the violation, and (3) his
conduct was objectively unreasonable. Appellant’s claims fail
because neither Trail nor Elkins violated any of his clearly
established constitutional rights.
A.
Appellant argues that the termination proceedings did not
afford him procedural due process. Specifically, appellant
argues that Trail and Elkins did not give him notice of the
“actual reasons” for his termination and that the termination
hearing was biased.
Appellant alleges that he was denied due process because he
did not have an opportunity to respond to “the reasons which
8 actually motivated Dr. Trail” to terminate him. In Levitt v.
University of Texas at El Paso, this court articulated the due
process protections to which a tenured professor is entitled.
759 F.2d 1224, 1228 (5th Cir. 1985). Included among these
protections is the professor’s right to “be advised of the cause
for his termination in sufficient detail so as to enable him to
show any error that may exist.” Id. This notice requirement is
satisfied when a professor receives “notice of the charges
against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495
(1985).
Prior to terminating appellant, Trail sent a letter
informing him of the decision to institute termination
proceedings. The letter informed appellant of the charges and
requested a written response. These facts are not disputed.
This procedure gave appellant notice of the charges and an
opportunity to tell “his side of the story.” Therefore,
Appellant received the notice and opportunity to be heard that
due process requires.
Appellant also argues that the hearing he received was
biased because a lawyer participated as an advisor both in
drafting the initial charge letter and in the subsequent
hearings. Before being terminated, a tenured professor is
9 entitled to a hearing before a tribunal that possesses “an
apparent impartiality toward the charges.” Levitt, 759 F.2d at
1228. However, partiality is not established by the fact that
someone participated in the hearing and in the initial
investigation. See Duke v. North Texas State University, 469
F.2d 829, 834 (5th Cir. 1972). For example, in Duke v. North
Texas State University, this Court rejected plaintiff’s argument
that the hearing was biased simply because some of those who sat
on the panel also participated in the charging phase of the
termination proceedings. See id. Similarly, appellant argues
that the participation of an attorney in the charging and hearing
phases of the termination proceedings made the hearing biased
against him. Just as in Duke, such participation does not
constitute partiality, particularly where, as here, the allegedly
partial individual did not participate in the actual decision to
terminate. Summary judgment against appellant on his procedural
due process claims was appropriate.
B.
Appellant argues that Trail and Elkins violated his
substantive due process rights by terminating him without cause.
To succeed with a substantive due process claim, the public
employee must show: (1) that he had a property interest in his
employment and (2) that the employer’s termination of that
interest was arbitrary or capricious. See State of Texas v.
10 Walker, 142 F.3d 813, 819 (5th Cir. 1998). Neither the Supreme
Court nor this Court has squarely decided the issue of whether
faculty tenure is a property right. See id. Assuming it is,
appellant’s substantive due process claim nevertheless fails
because neither Trail’s nor Elkins’ actions were arbitrary or
capricious.
A public employer’s termination of an employee does not
violate substantive due process unless the determination “so
lacked a basis in fact that their decision to terminate him was
arbitrary or capricious, or taken without professional judgment.”
Id. The fact that reasonable minds could disagree on the
propriety of the decision is insufficient to defeat a public
official’s qualified immunity. See id.
In this case, Dr. Gary Cunningham, a physician not
associated with LSUMS, determined that appellant engaged in
“questionable obstetrical practices.” An independent review by
the ACOG resulted in a finding that, in two cases, appellant’s
care fell below the standard required of a physician. The ACOG
also found that appellant’s performance was unsatisfactory in
another sixteen cases because of inadequate medical record
documentation. Appellant was provided a hearing, an opportunity
to defend himself, and several appeals. Appellant may not agree
with Dr. Cunningham’s or the ACOG’s findings, but it cannot be
said that the decision to terminate him lacked a basis in fact.
11 Further, the extensive proceedings afforded appellant show that
the decision to terminate him was not made arbitrarily or
capriciously. Therefore, neither Trail nor Elkins violated
appellant’s substantive due process rights and summary judgment
in their favor on this issue was appropriate.
C.
Appellant claims that Trail and Elkins violated his free
speech rights under the First and Fourteenth Amendments.
Appellant argues that Elkins violated his First Amendment rights
by terminating him for supporting Blanchard and that Trail is
also responsible for this violation as Elkins’ supervisor.
The State’s interest in regulating the speech of its
employees is significantly different than its interest in
regulating the speech of its citizens. See Daly v. Sprague, 742
F.2d 896, 898 (5th Cir. 1984). A state operated hospital “has
the right, and the duty,” to regulate the conduct of its
physicians. Id. “Reasonable restraints on the practice of
medicine and professional actions cannot be defeated by pointing
to the fact that communication is involved.” Id. Because the
State possesses the power to regulate a doctor’s non-speech and
non-association activities, incidental restrictions are valid.
For example, in Daly v. Sprague, a physician argued that his
employer violated his First Amendment speech and association
rights by prohibiting him from seeing his patients. See id. We
12 held that any restriction on his First Amendment rights was
incidental to the valid and reasonable regulation of his conduct
as a physician. See id.
Here, Elkins told appellant that he should not support
Blanchard’s substandard medical practices because it would harm
appellant’s and the hospital’s reputations. Just as in Daly,
Elkins’ directive was a regulation of appellant’s professional
conduct, and any restriction on speech was incidental.
Appellant’s only basis for holding Trail liable for
violating his free speech rights is that Trail is responsible for
Elkins’ actions as his supervisor. As we have said, Elkins did
not violate appellant’s free speech rights, but, in any event,
only the direct acts or omissions of government officials will
give rise to individual liability under section 1983. See
Coleman v. Houston Independent School District, 113 F.3d 528,534
(5th Cir. 1997). Liability under section 1983 cannot be
predicated upon the vicarious liability doctrine of respondeat
superior. See id. Since Trail’s liability is predicated upon
the doctrine of respondeat superior rather than upon his own acts
or omissions, Trail is not liable under section 1983. Therefore,
the district court’s decision to grant summary judgment against
appellant on his free speech claims was proper.
D.
13 Appellant contends that he was deprived of a liberty
interest in his reputation because Elkins and LSUMS failed to
provide him a name-clearing hearing. A public employer may
deprive its employee of a liberty interest in his reputation
where it terminates him under stigmatizing circumstances without
giving the employee a name-clearing hearing. See Arrington v.
County of Dallas, 970 F.2d 1441, 1447 (5th Cir. 1992). To
successfully assert this claim, a plaintiff must allege that “he
was a public employee, he was discharged, that stigmatizing
charges were made against him in connection with the discharge,
that the charges were false, that the charges were made public,
that he requested a name-clearing hearing, and that the hearing
was denied.” Id. In Arrington v. County of Dallas, this Court
affirmed summary judgment against the public employee because he
failed to allege the publication element of the claim. Id.
Similarly, appellant in the instant case has failed to allege
that he ever requested a name-clearing hearing as required by
Arrington. Therefore, summary judgment against appellant on this
claim is appropriate.
E.
Appellant argues that his termination was the result of a
larger conspiracy involving Trail and Elkins. A section 1983
plaintiff may assert conspiracy claims, but such a claim is not
actionable without an underlying violation of section 1983. See
14 Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir.
1990). Where defendants are entitled to qualified immunity, the
underlying violation of section 1983 required to make out a
conspiracy claim does not exist. See id. Since Trail and Elkins
are entitled to qualified immunity, there is no violation of
section 1983 upon which to base conspiracy liability.
CONCLUSION
The Eleventh Amendment bars suit against the LSU Board and
Trail and Copping in their official capacities. Both Trail and
Elkins are entitled to qualified immunity because they did not
violate any of appellant’s clearly established constitutional
rights. In sum, all issues presented by appellant, including
those not specifically addressed in this opinion, are without
merit. Accordingly, we affirm the district court’s grant of
summary judgment against appellant.