FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 27, 2017
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Elisabeth A. Shumaker
Clerk of Court
RAYMOND WINGER, M.D.,
Plaintiff - Appellant,
v. No. 17-3009
(D.C. No. 6:13-CV-01428-JTM)
MEADE DISTRICT HOSPITAL, (D. Kan.)
Defendant - Appellee.
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ORDER AND JUDGMENT*
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Before MATHESON, McKAY, and MORITZ, Circuit Judges.
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In the second appeal in this case, Dr. Raymond Winger challenges the district
court’s order granting summary judgment to Meade District Hospital on Dr. Winger’s
claim that the Hospital did not provide him with due process when it terminated his
employment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
The facts and early procedural history of this case are recounted in detail in
Winger v. Meade District Hospital, 646 F. App’x 674 (10th Cir. 2016) (Winger I). In
essence, shortly after the Hospital hired Dr. Winger, it fired him for providing
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
substandard care to two patients. Id. at 675-76. Before doing so, the Hospital’s Risk
Management Committee conducted an investigation that involved two meetings with
Dr. Winger and a review by a third-party organization, Docs Who Care. Id. at 675.
Even so, Dr. Winger filed a lawsuit, alleging the Hospital violated 42 U.S.C. § 1983
when it fired him without due process and infringed upon his liberty interest in his
reputation by reporting his termination to the state regulatory board. Id. at 676. The
district court granted summary judgment to the Hospital on both claims. Id.
Dr. Winger then filed the first appeal, with mixed results. In Winger I, we
affirmed the summary judgment grant on the liberty interest claim but reversed and
remanded the grant on the due process claim. Id. at 677-78. For the latter claim, we
determined that Dr. Winger did have a property interest in continued employment at
the Hospital for a defined time period, such that the Hospital could not deprive him
of his job without due process; however, we could not tell from the record whether
the Hospital provided due process, so we directed the district court to conduct
additional proceedings and answer that question. Id. at 676-77.
On remand, the Hospital filed a second summary judgment motion, asserting
that Dr. Winger received adequate due process before termination. The district court
agreed, entering summary judgment once again in favor of the Hospital. Dr. Winger
now appeals that ruling. “We review the district court’s grant of summary judgment
de novo.” Felkins v. City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014) (internal
quotation marks omitted). Summary judgment is appropriate if a movant “shows that
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there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Dr. Winger complains on appeal that the Hospital did not give him “any
procedural roadmap” to present his defense. Br. of Aplt. at 12. In particular, he
asserts the Hospital should have provided him with “advanced notice of the exact
misconduct being alleged against him,” an “explanation of the procedure to be
followed in evaluating his conduct,” and a “meaningful evidentiary hearing.” Id. at
8. In addition, he requests “more due process protections . . . than would be typically
required of a public employee” because mandatory reporting to the state regulatory
board negatively impacts a physician’s career. Id. at 13; see also Reply Br. of Aplt.
at 5 (advocating for “a much more robust due process procedure”).
Dr. Winger’s position does not comport with our case law. The directive we
gave the district court for the remand proceedings spells out what is, in fact, required:
In the employment context, due process requires a hearing with: (1) oral
or written notice of the charges; (2) an explanation of the evidence; and
(3) an opportunity for the employee to present his side of the story. A
full evidentiary hearing is not required, but the employee must be given
notice and an opportunity to respond.
Winger’s meetings with the risk management committee may
have satisfied these requirements, but the parties did not fully brief the
issue and it appears there may be disputed facts regarding the notice
provided, the nature of the meetings, and Winger’s opportunity to
defend himself. Because it is unclear from the record whether the
Hospital gave Winger adequate process, we leave it to the district court
to resolve this issue in the first instance.
Winger I, 646 F. App’x at 677 (internal quotation marks and citations omitted).
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The district court carefully applied the standard we articulated and determined
that Dr. Winger received adequate due process. See App., Vol. II at 411 (concluding
he “was given notice of the charges, an explanation of the evidence, and an
opportunity to present his side of the story”). We find no fault with its analysis. It is
clear from the record that Dr. Winger received notice of the charges against him—
together with an explanation of the supporting evidence—through two in-person
meetings with the Hospital’s Risk Management Committee and several letters
prepared by Docs Who Care. It is also clear that Dr. Winger had an opportunity to
present his side of the story to both the Committee and Docs Who Care, though he
chose not to take full advantage of it. Indeed, Dr. Winger conceded as much in his
opening brief:
Dr. Winger was shown the Docs Who Care letters [during a June 20,
2013, meeting]. Dr. Winger asked whether he could have the opportunity
to talk with Docs Who Care. The Committee agreed.
Dr. Winger testified that he later decided that contacting Docs
Who Care would be a waste of time because they had already reached
their conclusions. Instead, Dr. Winger opted to obtain a supporting
opinion from James Wiley, MD.
Dr. Winger presented the Hospital with the letter from
Dr. Wiley. . . . The committee brought Dr. Winger before it [during the
second meeting on July 2, 2013] and Dr. Winger explained his position.
Br. of Aplt. at 6-7 (citations omitted).
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Because we agree with the district court that there is no genuine issue of
material fact as to whether the Hospital satisfied the applicable due process standard
and the Hospital is entitled to judgment as a matter of law, we affirm.
Entered for the Court
Monroe G. McKay
Circuit Judge
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