Pastorek v. Trail

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this opinion should not be published and is not precedent except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

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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.

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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.

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 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

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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.

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