Shaboon v. Duncan

REVISED - June 12, 2001

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-50175

MAY SHABOON, M.D.

Plaintiff-Appellee,
v.

CHARLES A. DUNCAN, M.D., ETC.; ET AL.,

Defendants,

CHARLES A. DUNCAN, M.D.; TONI DOLLINGER, M.D.; UNIVERSITY OF
TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, TEXAS,

Defendants-Appellants,

Appeal from the United States District Court for the
Western District of Texas

May 24, 2001

Before JONES and DeMOSS, Circuit Judges, and BARZILAY,* District
Judge.

EDITH H. JONES, Circuit Judge:

Plaintiff-appellee Dr. May Shaboon sued the appellants,

and many other parties, on numerous federal and state claims after

she was terminated from a state school’s medical residency program.

The trial court painstakingly sifted through Shaboon’s claims,

*
Judge, U.S. Court of International Trade, sitting by
designation.

1
granting dismissals or summary judgment to most of the defendants.

Drs. Duncan and Dollinger were denied summary judgment on some of

their claims of qualified immunity, and the medical school

unsuccessfully sought Eleventh Amendment immunity against Shaboon’s

ADA claim. On appeal by these remaining defendants, we sustain the

doctors’ contentions but conclude that the Health Science Center’s

immunity claim is best reviewed by the district court in the first

instance, following a recent Supreme Court decision.

FACTUAL AND PROCEDURAL HISTORY

Appellant University of Texas Health Science Center at

San Antonio (“Health Science Center”) is a state-sponsored medical

school.

Under a contractual arrangement, doctors in post-medical-

school residency programs at the Health Science Center have

clinical privileges at a hospital owned by the Bexar County

Hospital District (“Hospital District”) and the local VA Hospital.

Residents receive a stipend from one of the hospitals and may treat

patients under the supervision of hospital staff physicians. The

residents sign a memorandum of understanding with the hospitals

stating that, “under no circumstances will either Party terminate

this agreement prior to its expiration date without prior notice

and without providing the other party the opportunity to discuss

freely any differences, dissatisfactions, or grievances that may

exist.” If the Health Science Center terminates a doctor’s

2
residency, that doctor loses clinical privileges at the hospitals.

Shaboon began the second year of a three-year internal

medicine residency at the Health Science Center in August 1993.

The director of her residency program was appellant Dr. Charles

Duncan, a professor at the Health Science Center. Duncan also

served on the Hospital District’s executive committee, which plays

a central role in administering corrective actions.

On August 2, Shaboon had just finished a week in which

she claimed to have worked one hundred and eight hours. Duncan

sent her home because she looked tired. Shaboon returned on August

3 and observed a morning report in which Duncan and several

residents were discussing a mentally ill patient. Shaboon stated

that the residents were pointing and laughing at her, and she

believed that the group was talking about her. According to

Duncan, Shaboon actually believed she was the patient. Based on

this event, he persuaded her to see a psychiatrist.

Appellant Dr. Toni Dollinger, the Chief Resident in

psychiatry at the Health Science Center, examined Shaboon.

Dollinger’s notes from the exam state that Shaboon was very tense,

guarded, and moderately depressed. Shaboon discussed the morning

incident and stated that she was not recording her patient

interactions on charts. Shaboon reportedly was having trouble

sleeping and could not manage her patients and interns. She was

not violent or suicidal. Dollinger testified in deposition that

3
Shaboon was not thinking rationally, but was capable of making an

informed decision about seeking hospitalization.

Dollinger concluded that Shaboon satisfied the criteria

for involuntary hospitalization. She urged Shaboon to check into

a mental hospital voluntarily, and threatened to fill out

involuntary commitment paperwork if Shaboon did not.

Shaboon has a different account of Dollinger’s warning.

Dollinger reportedly said the police would take Shaboon to a mental

hospital in handcuffs if she did not go voluntarily. Dollinger

allegedly said that Shaboon’s friends would witness this and laugh,

which would be bad for Shaboon’s mental health. Dollinger

allegedly also stated that an involuntary commitment would taint

Shaboon’s professional record.

Although Dollinger said that she did not threaten to have

the police escort Shaboon to the hospital, she testified that it

was “fairly common” for police to escort patients involuntarily to

a hospital. Dollinger testified that she had initiated involuntary

commitments over fifty times, and that she had called the police to

escort patients on some of those occasions. She could not

specifically recall whether the police had handcuffed her patients,

but said “I imagine if they were combative they were [handcuffed].”

Shaboon agreed to go to the Villa Rosa mental hospital on

her own. Dr. Christopher Ticknor examined Shaboon there. In an

admission history dictated August 4, he wrote that upon admission

4
Shaboon was fully oriented to person, place, date, and time, and

that she was not a danger to herself or to others. Ticknor found

that Shaboon was suffering from major depression, and that she was

suffering from severe psychosocial stressors and obsessive

ruminations about her professional performance. He found that she

was “psychologically and physically exhausted and ha[d] deprived

herself of sleep, normal appetite and relaxation . . . .” Ticknor

concluded that “[h]ospitalization is indicated because of the

severity of the patient’s depression and the paralyzing nature of

her obsessive-compulsive disorder.”

Shaboon remained at Villa Rosa until August 11. She

decided to leave against Ticknor’s recommendation, but did not

immediately return to work or ask for time off. Despite his

efforts to contact Shaboon, Duncan did not see her until August 16.

When he saw her, he said she was absent without leave and required

her to produce a psychiatric report confirming that she could

resume treating patients.

Dr. Eileen Smith then evaluated Shaboon. Shaboon had

stopped taking psychiatric medications that Ticknor had prescribed

for her because they made her sick. Smith told Duncan that Shaboon

was not ready to return to work. Ticknor confirmed this to Duncan.

With Shaboon’s consent, Duncan received copies of psychiatric

records from Ticknor and Smith. According to records from

5
Ticknor’s hospital, Shaboon told doctors that her father sexually

abused her when she was a child.

Duncan decided to keep Shaboon away from patients and

told her to report daily to a conference room next to his office

and read medical literature. He testified that he lacked authority

to suspend her clinical privileges, and that only the Hospital

District could do so. Duncan stated that he removed her from

practicing temporarily on August 3, and characterized this as

“redirecting” her activities. He said that he really wanted her to

seek care and resolve her mental illness.

In an August 20 letter, Duncan and another professor at

the Health Science Center placed Shaboon on probation with respect

to her residency because of her mental illness and her refusal to

cooperate with psychiatrists. The letter stated that Shaboon was

not cooperating with Duncan and warned that the Health Science

Center would dismiss her if she did not improve her behavior and

performance.

Concurrently, Duncan began to discuss procedures to

revoke Shaboon’s clinical privileges with Dr. Nicholas Walsh,

president of the Hospital District’s medical-dental staff, and the

district’s legal counsel. Duncan wrote in a personal memorandum of

August 18 that he had ordered Shaboon to prepare a statement about

her difficulties in the program, but she did not initially

cooperate with the order.

6
 Duncan wrote to Walsh on August 19, requesting assistance

under Hospital District bylaws to discipline Shaboon. Duncan

testified in deposition that he believed the bylaws allowed Walsh

to suspend Shaboon’s privileges unilaterally.

The appellants assert that the Hospital District

suspended Shaboon’s clinical privileges at this point. They point

to testimony and an October 4 Advocacy Committee letter suggesting

that the Hospital District suspended her on an unspecified date in

late August. Hospital District records show, however, that the

district never suspended Shaboon. Walsh also could not recall

suspending her.

At Duncan’s suggestion, Shaboon met with doctors on the

Hospital District Physicians Advocacy Committee (“Advocacy

Committee”), which assists disciplined physicians in Hospital

District proceedings. The committee members, themselves

psychiatrists, asked to see Shaboon’s psychiatric records and talk

to her psychiatrist at the time, Dr. Malathi Koli. Shaboon offered

only to give them Koli’s opinion on her medical fitness and to

receive written questions for Koli. She stated in her deposition

that she did not want doctors in the hospital to know about her

childhood sexual abuse. Duncan also asked to speak to Koli, but

Shaboon offered him the same limited disclosure.

Rather than treat patients, Shaboon continued to report

to the conference room, and later the hospital library, during

7
September. Shaboon said that Duncan would not permit her to talk

to other doctors about her situation or attend resident conferences

and meetings. She alleged that during this period, Duncan taunted

her about the descriptions of sexual abuse in her medical records.

He reportedly made statements such as “I guess you don’t want to

talk about your father, huh,” and “I guess you don’t like being

touched.”

On September 10, the Advocacy Committee wrote a letter

requesting full access to medical records from Ticknor and Koli.

The letter stated that the committee could not recommend

reinstatement of her privileges if she did not sign consent forms.

Shaboon did not comply with the request.

On September 28, Duncan and another professor sent

Shaboon a letter giving her “formal notification” of her

probationary status in the residency program. The letter also

stated that her clinical privileges had been suspended back on

August 20. In addition, the letter asked for full access to Dr.

Koli and warned that the Health Science Center would terminate her

residency if she did not cooperate. The letter encouraged her to

hire legal counsel.

Shaboon retained attorney Raymond Karam. Karam met with

Duncan and Jack Park, the Hospital District’s executive director of

institutional services. Duncan and Park stated that Shaboon had

8
three options: she could resign, take a potentially permanent leave

of absence, or be fired by October 11.

Duncan and the acting chairman of the Health Science

Center Department of Medicine gave Shaboon an “intent to dismiss”

letter on or about October 12. The letter cited her “failure to

satisfy academic requirements.” “The deficiencies you have

demonstrated regarding your ability to care for patients and your

refusal to cooperate with our efforts to help you have caused you

to fail three months of your training.” The letter concluded,

“[i]f you can provide any evidence or reason to us as to why you

should not be dismissed from the program, then we will consider

that information prior to final dismissal procedures.”

Shaboon sent a letter to Duncan on October 14 asking to

remain in the program and to be allowed to make up lost time. The

Health Science Center formally dismissed Shaboon on October 15.

The VA Hospital terminated Shaboon, ending her salary, on October

20.

Duncan’s secretary told University police on October 27

that Shaboon called and threatened Dr. Janet Blodgett’s children.

Blodgett was an assistant professor who had supervised Shaboon

during Shaboon’s first year. Blodgett signed a typed police

affidavit a month later that described Shaboon’s phone conversation

with Duncan’s secretary. The affidavit also stated, “[B]oth Dr.

Ticknor and her most recent psychiatrist expressed frustration over

9
May’s failure to comply with longterm [sic] therapy . . . She fired

both psychiatrists once they advised treatment.”

Blodgett testified in deposition that she did not type

the affidavit and did not know who did. She stated that she had

heard that Shaboon had fired a psychiatrist, but did not recall the

source. She testified that she had never seen Shaboon’s medical

records, and could not recall talking with Shaboon about her

psychiatric treatment. Blodgett knew Ticknor well, but could not

recall discussing Shaboon with him or any other psychiatrist.

Shaboon could not recall speaking with Duncan’s

secretary, but recalled talking to Blodgett. She asserted that she

did not intend to threaten Blodgett’s children. Rather, she meant

to express that God would be good to Blodgett’s children if

Blodgett helped her. Shaboon said she was “really stressed out,”

and that what she said in English1 might not have represented her

ideas. When asked whether she had threatened to poke the eyes out

of Blodgett’s children, Shaboon replied, “I would never say

something like that to any child. . . . But if I said it, I might

have been very stressed out and very sick.”

Shaboon claimed that she had a phone altercation with

Duncan on October 27. Duncan reportedly told her that she could

not come back, and that the dismissal was her fault. Alluding to

1
Shaboon is of Syrian origin, and English is not her first
language.

10
the Health Science Center’s ten-point grading system, he reportedly

told Shaboon that she was “not a two, not a one, but a zero.”

Shaboon broke down and went out into the street throwing money. At

the request of Shaboon’s mother and sister, San Antonio police

picked her up, and she was hospitalized on that date.

Also on that date, Duncan notified the Tennessee Board of

Medical Examiners (“Tennessee Board”) that the Health Science

Center had dismissed Shaboon. Shaboon was applying for a license

to practice medicine in Tennessee, and Duncan had previously

written an unqualified recommendation on her behalf. On November

2, Duncan told the board about Shaboon’s alleged threat to

Blodgett’s children.

On November 5, the Tennessee Board asked for documents

relating to the dismissal. Shaboon had authorized Duncan to

provide information to the board in good faith about her

qualifications. Duncan sent the board Shaboon’s negative

evaluations and his correspondence with her. The Tennessee Board

rejected Shaboon’s application.

Shaboon’s current lawyer sent a letter to Duncan on

November 5 indicating that she wanted to appeal her dismissal.

Shaboon believed throughout these events that she was entitled to

a hearing if the Hospital District suspended her, but she claimed

that she never received a suspension. She believed that Duncan

would allow her to resume patient care after he satisfied his

11
“ego,” and that she was not suspended because she was still

receiving her salary. Park told the lawyer that Shaboon had lost

her appeal rights because she did not substantively respond to the

October 12 letter.

Shaboon filed suit in 1994, alleging a wide variety of

claims against virtually every person involved in these events. In

a series of rulings, the district court dismissed most of the

claims and most of the defendants. Duncan, Dollinger, and the

Health Science Center are the remaining defendants.

Duncan asserted qualified immunity from Shaboon’s due

process, privacy, and intentional infliction of emotional distress

claims, and moved for summary judgment. The district court denied

this motion, holding that fact issues remain on Duncan’s qualified

immunity defense.

Dollinger asserted qualified immunity from Shaboon’s

claims under state law for medical malpractice, gross negligence,

intentional infliction of emotional distress, and fraudulent

inducement, and moved for summary judgment. Shaboon countered this

motion with the testimony of her expert, psychiatry professor Dr.

Daniel Creson. Creson reviewed Dollinger’s treatment records and

deposition testimony, and opined that no reasonable doctor would

have committed Shaboon on August 3. Creson also said that it was

unacceptable for a psychiatrist to threaten involuntary commitment

if she knew that involuntary commitment was impracticable. The

12
court denied Dollinger’s summary judgment motion, holding that

Creson’s testimony created a fact issue on Dollinger’s qualified

immunity under Texas law.

Finally, the Health Science Center moved for summary

judgment on Shaboon’s ADA claim. The court held that material

issues of fact remained and denied summary judgment. This appeal

follows the court’s rulings.

QUALIFIED IMMUNITY AND APPELLATE JURISDICTION

Federal qualified immunity protects government officials

performing discretionary functions from civil damages liability.

“[W]hether an official protected by qualified immunity may be held

personally liable for an allegedly unlawful action generally turns

on the ‘objective legal reasonableness’ of the action, assessed in

light of the legal rules that were ‘clearly established’ at the

time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639

(1987) (citations omitted). “The contours of the right must be

sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Id.

Texas official immunity is similar, but focuses solely on

the objective legal reasonableness of the officer’s conduct.

Whether the allegedly violated right was “clearly established” is

irrelevant. Cantu v. Rocha, 77 F.3d 795, 808-09 (5th Cir.1996).

13
 This court may review orders denying qualified immunity

to the extent that they turn on an issue of law. Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985); see also Cantu, 77 F.3d at 803

(allowing an interlocutory appeal from an order denying Texas

official immunity). Although the district court explicitly stated

that material fact issues remain on the appellants’ qualified

immunity claims, this in itself does not preclude appellate review.

Behrens v. Pelletier, 516 U.S. 299, 313 (1996). We may still

evaluate the evidence that the district court deemed sufficiently

supported to determine whether the appellants acted reasonably as

a matter of law. See id.2

We may also review arguments that Shaboon’s asserted

rights were not clearly established in 1993. Mitchell, 472 U.S. at

528. A “necessary concomitant” to this review is an evaluation of

whether Shaboon had a liberty or property interest that supports

her due process claim. Siegert v. Gilley, 500 U.S. 226, 232

(1991).

2
This court reviews orders denying summary judgment de
novo, using the same standards as the district court. Cantu v.
Rocha, 77 F.3d 795, 805 (5th Cir.1996) (applying this standard in
a qualified immunity case); Burge v. Parish of St. Tammany, 187
F.3d 452, 464 (5th Cir.1999) (applying this standard in an Eleventh
Amendment case).

14
 Finally, this court may review an interlocutory appeal

based on Eleventh Amendment immunity. Puerto Rico Aqueduct & Sewer

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).

DISCUSSION

A. Liberty Interest in Medical Residency/Clinical
Privileges.

Shaboon contends, and the district court agreed, that her

dismissal from the residency program infringed her constitutional

liberty interests if unaccompanied by sufficient procedural

protections. Further, these violations might be found to be so

“clearly established” as to overcome Duncan’s qualified immunity

defense. These conclusions unfortunately misread the law of the

Supreme Court and this court, under which students’ due process

rights are evaluated on a scale commensurate with the nature of

their academic program and the type of discipline involved. In

particular, “[i]t is well-known that the primary purpose of a

residency program is not employment or a stipend, but the academic

training and academic certification for successful completion of

the program.” Davis v. Mann, 882 F.2d 967, 974 (5th Cir.1989)

The only direct support for Shaboon’s claimed liberty

interest derives from a recent Texas Supreme Court decision, which

held that there is at least a liberty interest in a graduate

education giving rise to procedural due process protections.

University of Texas Medical School at Houston v. Than, 701 S.W.2d

15
926, 930 (Tex. 1995). Than is distinguishable for several reasons.

Principally, as the Texas Supreme Court noted, Than interpreted the

Texas constitutional guarantee of “due course of law,” a provision

the court recognized as similar but not necessarily identical to

the Fourteenth Amendment’s due process clause. Texas Supreme Court

interpretations of Texas constitutional rights are no more than

persuasive authority for federal constitutional interpretation.

Second, Than, the plaintiff, was dismissed for cheating on an exam.

Thus, to the extent his case casts any light on the federal due

process clause, similar cases would involve student dismissals for

pure misconduct. As will be seen, this is not such a case.

Finally, Than postdates the events here by a couple of years. For

these reasons, Than furnished no “clearly established law”

applicable when Shaboon was dismissed.

Instead, the clearly established law includes the Supreme

Court’s Horowitz decision and several academic dismissal cases from

this court. In Horowitz, the Supreme Court upheld against a due

process challenge the termination of a medical school student whose

performance of duties was rated inadequate by the school staff.

Board of Curators of University of Missouri v. Horowitz, 435 U.S.

78, 98 S.Ct. 948 (1978). The Court emphasized its reluctance to

“ignore the historical judgment of educators and thereby formalize

the academic dismissal process by requiring a hearing.” 435 U.S.

at 90, 98 S.Ct. at 955. Moreover, the Court recognized that the

16
complexity of the student-faculty relationship increases “as one

advances through the varying regimes of the educational system.”

Id. The Court concluded that “in the academic context,” the cost

of imposing a hearing requirement is more likely to be detrimental

in postgraduate courses than it was found to be for the high school

students in Goss, a case involving solely behavioral discipline.

Id., citing Goss v. Lopez, 419 U.S. 565, 594 (1975) (holding that

high school students were entitled to notice and a hearing before

receiving a suspension for misconduct). Rather than decide

expressly whether Horowitz had a protected liberty or property

interest in her graduate medical education, the Court assumed the

existence of some such interest and held that the student received

all that the Fourteenth Amendment requires where “the school fully

informed [her] of the faculty’s dissatisfaction with her clinical

progress and the danger that this posed to timely graduation and

continued enrollment.” 435 U.S. at 85, 98 S.Ct. at 952.

This court faithfully followed Horowitz in a case where

a dental resident was dismissed for performance deficiencies

including tardiness and missed appointments with patients. Davis

v. Mann, 882 F.2d 967, 969 n.4 (5th Cir. 1989). Citing both

Horowitz and Goss, Davis observed that “[c]ourts overwhelmingly

agree that students, whether dismissed for academic or disciplinary

reasons, are not entitled to as much procedural protection under

17
the Fourteenth Amendment as employees who are terminated from their

jobs.” 882 F.2d at 973-74. And, pursuant to Horowitz, “Davis was

not entitled to any hearing -- much less the full-blown post-

termination hearing he received.” 882 F.2d at 975. The student

received ample notice of the charges against him and a warning of

the consequences that would follow his failure to improve

performance.3

Shaboon can prevail under these authorities only if she

was dismissed solely for behavioral misconduct and if the Health

Science Center, acting through Duncan, failed to accord her the

minimum procedural protections owed in cases of student dismissal.

The former proposition cannot be squared with Horowitz, and the

latter proposition is untenable. Shaboon’s dismissal was academic

if it “rested on the academic judgment of school officials that she

did not have the necessary clinical ability to perform adequately

as a medical doctor and was making insufficient progress toward

that goal.” Horowitz, 435 U.S. at 89-90, 98 S.Ct. at 955. In

Horowitz, the Court found that a medical student’s dismissal was

3
While the Supreme Court did not affirmatively rule in
Horowitz that a graduate school student has a liberty interest in
completing his program, a separate line of authorities holds that
public employees whose dismissals involve false, stigmatizing
charges may suffer violations of a liberty interest if they are
denied a hearing in which to clear their names. Rosenstein v. City
of Dallas, 876 F.2d 392, 395 (5th Cir.1989). As Shaboon was not a
public employee, these cases would not apply. And in any event,
she never requested a name-clearing hearing.

18
academic even though the school warned her to improve her personal

hygiene and attendance as well as her academic performance.

“Personal hygiene and timeliness may be as important factors in a

school’s determination of whether a student will make a good

medical doctor as the student’s ability to take a case history or

diagnose and illness.” Id. at 91 n.6, 98 S.Ct. at 955 n.6.

Here, the undisputed facts indicate that the Health

Science Center dismissed Shaboon for reasons related to her fitness

to perform as a doctor. Shaboon received several negative

evaluations and was suffering from mental problems on or after

August 3. She departed Villa Rosa against Ticknor’s recommendation

and stopped taking medication. Smith and Ticknor indicated that

Shaboon was not ready to treat patients. No psychiatrist ever

cleared Shaboon to return to work, and Shaboon missed clinical

rotations as a result. Although Shaboon’s intransigence might

suggest that her dismissal was disciplinary, her refusal to

acknowledge and deal with her problems furnished a sound academic

basis for her dismissal. As a matter of law, therefore, Shaboon

was not entitled to any type of hearing and cannot claim that Dr.

Duncan violated a liberty interest in her residency. See also

Davis, supra.

Nevertheless, Shaboon received sufficient procedural

protection even if her dismissal was solely for disciplinary

19
reasons. “All that Goss required [for disciplinary actions] was an

‘informal give-and-take” between the student and the administrative

body dismissing [her] that would, at least, give the student ‘the

opportunity to characterize [her] conduct and put it in what [she]

deems the proper context.’” Horowitz, 435 U.S. at 85-86, 98 S.Ct.

953 (quoting Goss, 419 U.S. at 584). Shaboon was informed that her

residency was in jeopardy and of her deficient performance. She

had several opportunities to comply with the official requests for

a review of her psychiatric records and to explain why she should

not be dismissed. She was allowed to have her attorney represent

her in a meeting with Duncan and Park. Thus, Shaboon received

sufficient process as a matter of law even if her dismissal was

disciplinary.

We reject for the same reasons Shaboon’s claim that

Duncan violated a liberty interest in her clinical privileges at

the Hospital District.4 Under the Hospital District bylaws,

Shaboon had limited privileges “to treat patients under the

supervision of the Active and Courtesy staff.” These privileges

were part of her educational program and were not distinct from her

residency. She lost the privileges for the same academic problems

that caused her to lose her residency, and so she had no right to

4
While it is not clear whether she asserts a liberty
interest in hospital privileges, we assume arguendo that she makes
such a contention.

20
a hearing. Even if the dismissal was disciplinary, she received

adequate process from agents of the Hospital District. Shaboon

therefore received all the process she was entitled to for her lost

residency and clinical privileges.

B. Property Interest in Clinical Privileges.

As with other forms of public employment, medical staff

privileges can constitute a property interest entitling the

employee to procedural due process before termination. The

district court held that a fact question exists concerning whether

Shaboon had a property interest in her privileges as a medical

resident working for the Hospital District.5 Physicians have a

property interest in clinical privileges if their contracts

explicitly or implicitly allow termination only for cause. See

Darlak v. Bobear, 814 F.2d 1055, 1061-62 (5th Cir.1987). See also

Caine v. Hardy, 943 F.2d 1406, 1411 (5th Cir.1991) (en banc).

As we have noted, a medical resident is not a traditional

public employee for due process purposes. But even if Shaboon was

a traditional employee, cases like Darlak would not control because

her agreements with the Hospital District did not establish a

property interest in her clinical privileges. Shaboon’s memorandum

of understanding gave her the right to discuss her grievances

5
The district court also held that Shaboon did not have a
property interest in her medical residency, and this ruling is not
on appeal.

21
informally, but did not require a formal hearing; there was no

implicit agreement that the Hospital District could terminate her

only for cause. The procedural protections in articles VIII and IX

of the Hospital District bylaws cover only licensed physicians.6

Shaboon did not have a license to practice medicine, and was

working under an institutional permit, a permit issued by the Texas

Board of Medical Examiners to unlicensed doctors contingent on

their participation in a residency program. Likewise, Shaboon’s

VA/BCHD contract was contingent on her continuing satisfactory

performance in the residency program. Thus, Shaboon has failed to

show that these agreements created any property interest in her

clinical privileges.

Furthermore, Davis established that medical residents are

not employees protected by the due process clause. Davis v. Mann,

882 F.2d 967, 974 (5th Cir.1989). In Davis, the court found no

clear legal support for the resident’s claimed property interest in

the “experience and instruction” of an ongoing residency,

notwithstanding that he was paid a salary. The court observed that

both the economic and noneconomic benefits of the employment were

inseparable from and ultimately dependent upon the plaintiff’s

6
The bylaws protect “practitioners.” A practitioner is
“an appropriately licensed allopathic or osteopathic physician with
a current unlimited license, or appropriately licensed physician,
podiatrist, dentist, or a dentist covered by exception under the
Texas Dental Practice Act.”

22
academic performance in the residency itself. Id. at 974. While

Davis primarily addressed property interests in residencies, its

facts are very similar and its analysis applies here. Shaboon’s

limited clinical privileges only entitled her to treat patients

under the supervision of Hospital District doctors, and her stipend

was only payable while she remained a student. These privileges

were not distinct from the performance of her residency. Thus,

Shaboon had no clearly established economic or noneconomic property

interest in the limited privileges.7 Duncan was entitled to

summary judgment on Shaboon’s due process claims.

C. Constitutional Privacy Claim.

Duncan argues that he is entitled to qualified immunity

from Shaboon’s Fourth Amendment privacy claim because his actions

were reasonable even if Shaboon’s allegations are true. The

district court found a fact question as to Duncan’s qualified

immunity because he sought Shaboon’s complete medical records,

allegedly disclosed Shaboon’s psychiatric history to Blodgett, and

mocked Shaboon’s past sexual abuse.

The Fourth Amendment, which applies to the states through

the Fourteenth Amendment, bars unreasonable governmental searches

and seizures. We evaluate the alleged disclosure by balancing the

7
Because Shaboon lacked a protected property interest, we
need not wade into the questions, much disputed by the parties,
concerning when her clinical privileges were terminated or whether
Duncan alone could effect termination.

23
intrusion on Shaboon’s privacy interest against legitimate

government interests. Leckelt v. Board of Comm’rs of Hosp. Dist.

No. 1, 909 F.2d 820, 832 (5th Cir.1990).

This court has held that medical residents like Shaboon

have a reduced expectation of privacy. Pierce v. Smith, 117 F.3d

866, 874 (5th Cir.1999) (holding that a hospital could test a

resident for drugs where the resident acted strangely). This is

because residents are both engaged in dangerous activity and

operate in an educational environment where intrusions on privacy

are more acceptable. Id. Residents “‘reasonably should expect

effective inquiry into their fitness and probity.’” Id. at 875

(citing National Treasury Employees Union v. Von Raab, 489 U.S.

656, 672 (1989)). Pierce noted that a “consequence of case-by-case

balancing of interests is that there will rarely be a basis for a

priori judgment that the disputed action violated ‘clearly

established’ constitutional rights.” 117 F.3d at 882, n.21.

This court has also held that patient safety interests

can outweigh a medical staff member’s privacy interest in his

medical records. In Leckelt, a hospital requested that a nurse

divulge the results of an HIV test after it received information

that the nurse was gay and had been sexually involved with an AIDS

carrier. This court concluded that the hospital’s strong interest

24
in protecting the health of patients justified the intrusion. Id.

at 833.

From these authorities, it follows that Duncan did not

commit clear privacy violations as a matter of law. Duncan had

valid reasons to seek Shaboon’s complete medical records so he

could evaluate her fitness to treat patients. The alleged

disclosure to Blodgett was minor and reasonable, given that

Blodgett had supervised Shaboon as a professor at the Health

Science Center.

We also conclude that Duncan’s alleged “mockery” of

Shaboon’s history of sexual abuse is not relevant to her privacy

claim. There is no evidence in the record that would support a

finding that others witnessed this mockery. Thus, Duncan could not

have violated Shaboon’s privacy. “There is no invasion of privacy

when the material disclosed was already known to the recipient.”

Cantu v. Rocha, 77 F.3d 795, 807 (5th Cir.1996) (finding no

invasion of privacy where a police officer disclosed information to

witnesses that they already knew).

D. Intentional Infliction of Emotional Distress by
Duncan.

Duncan contends that his treatment of Shaboon, even

accepting the district court’s characterization of his conduct, was

not so heinous as to deny him qualified immunity under state law

from her claim for intentional infliction of emotional distress.

25
The district court found a fact question on this claim because of

evidence that Duncan “managed” Shaboon’s situation with little

concern for her feelings.

Texas follows the Restatement (Second) of Torts § 46

approach to infliction of emotional distress. Duncan is liable if

1) he acted intentionally or recklessly; 2) his conduct was extreme

and outrageous’ 3) his actions caused Shaboon emotional distress;

and 4) Shaboon’s emotional distress was severe. Brewerton v.

Dalrymple, 997 S.W.2d 212, 215 (Tex. 1999). A claim “will not lie

if emotional distress is not the intended or primary consequence of

the defendant’s conduct.” GTE Southwest, Inc. v. Bruce, 998 S.W.2d

605, 611 (Tex. 1999).

To be actionably extreme and outrageous, conduct must be

so outrageous in character and so extreme in degree as to go beyond

all possible bounds of decency, and be atrocious and utterly

intolerable in a civilized community. Id. at 611. In GTE

Southwest, for example, the Texas Supreme Court held that an

employer’s two-year pattern of grossly abusive and physically

threatening conduct could be outrageous. Id. Merely insensitive

or even rude behavior, however, does not constitute extreme and

outrageous conduct. Id. at 612. A victim’s known susceptibility

to emotional distress is relevant to this inquiry. Motsenbocker v.

26
Potts, 863 S.W.2d 126, 132 (Tex. Ct. App.-Dallas 1993) (citing

Restatement (Second) of Torts § 46 cmt. f).

A wrongful discharge is not in itself outrageous.

Brewerton, 997 S.W.2d at 216. In Brewerton, the defendants made

negative comments about a professor in his tenure file and

recommended that he not continue on a tenure track. They also

restricted his speech about the contents of his tenure folder and

assigned him an excessive case load. The Texas Supreme Court held

that even if the defendants had retaliatory motives, their conduct

was not outrageous. Id. This court has held that an employer who

said he would “no longer tolerate [an employee’s] health problems,”

excluded the employee from meetings, and refused to acknowledge her

presence did not act outrageously. McConathy v. Dr. Pepper/Seven-

Up Corp., 131 F.3d 558, 564 (5th Cir.1998).

Here, the actions that the district court cited were not

extreme and outrageous. Duncan’s alleged efforts “to obtain and

keep information to himself” about Shaboon’s illness, “manufacture

a diagnosis”, and “seclude” Shaboon suggest at most a propensity to

terminate her residency unfairly. Such ill-motivated actions do

not constitute legally actionable infliction of emotional distress.

More problematic, given his knowledge of her mental

condition, are Duncan’s alleged statements to Shaboon about her

childhood sexual abuse. One Texas appellate court has held that

27
similar remarks can be extreme and outrageous. Soto v. El Paso

Natural Gas Co., 942 S.W.2d 671, 681 (Tex. Ct. App.-El Paso 1997)

(finding a jury issue based on remarks ridiculing a woman’s breast

cancer surgery and describing her as “lopsided” and having a

“plastic [breast]”). Nonetheless, we are not convinced that

Duncan’s alleged remarks went beyond all possible bounds of

decency, and were atrocious and utterly intolerable in a civilized

community. Shaboon was not exposed to these remarks over a

protracted period of time or physically threatened, as the

plaintiffs were in GTE Southwest. 998 S.W.2d at 611. We therefore

conclude that even accepting her allegations as true, Shaboon

cannot prevail on her intentional infliction of emotional distress

claim.

E. State law claims against Dollinger.

Dollinger asserts that she acted reasonably when she

examined Shaboon and should therefore be immune under state law

from Shaboon’s intentional infliction of emotional distress, gross

negligence, fraudulent inducement, and medical malpractice claims.

All of these claims revolve around whether Dollinger threatened

Shaboon into voluntary commitment at Villa Rosa by misinforming her

that she could be involuntarily committed and, if so, that she

would be led away as her friends laughed at her. The district

28
court found a fact question on whether Dollinger acted reasonably

based on Dr. Creson’s testimony on behalf of Shaboon.

As an initial matter, Shaboon cannot prevail on her

intentional infliction of emotional distress claim. There is no

evidence that emotional distress was the intended or primary

consequence of Dollinger’s alleged conduct.

Shaboon also cannot prevail on her gross negligence

claim. Gross negligence is a “breach of duty involving an extreme

degree of risk, considering the probability and magnitude of the

potential harm to others (an objective element) when the actor has

actual awareness of the risk involved but nevertheless proceeds in

conscious indifference to the rights, safety, or welfare of others

(a subjective element).” General Motors Corp. v. Sanchez, 997

S.W.2d 584, 595 (Tex.1999). Neither of these elements has been

satisfied here. Dollinger’s alleged threats represent at most

strong-arm tactics to get a patient who needed treatment to commit

herself voluntarily. Dollinger had no reason to believe that

medical treatment at Villa Rosa would present an extreme degree of

risk to Shaboon. Nor, as even Creson admitted, is there any

evidence that Dollinger was consciously indifferent to Shaboon’s

safety.

Shaboon has also failed to create a fact issue on her

fraudulent inducement claim. Under Texas law, the elements of a

fraudulent inducement claim are the same as the elements of a

29
simple fraud claim. Hamilton v. Segue Software, Inc., 232 F.3d

473, 480 (5th Cir.2000). Shaboon must establish 1) a material

representation; 2) which was false; 3) which was either known to be

false when made or was asserted without knowledge of the truth; 4)

which was intended to be acted upon; 5) which was relied upon; and

6) which caused injury. Id. Shaboon has presented no evidence

that Dollinger said anything false or that Dollinger knew her

statements were false. Shaboon has not rebutted Dollinger’s

testimony, based on experience, that Dollinger could in fact ask

the police to take Shaboon to the hospital in handcuffs. Although

Shaboon presented evidence that Dollinger would have breached a

standard of care by doing so, she has not presented evidence that

Dollinger made the threat in bad faith. Thus, we reject Shaboon’s

fraudulent inducement claim.

Whether Dollinger may obtain official immunity for her

alleged medical malpractice is a closer question.8 Dollinger is

entitled to Texas official immunity if she was 1) performing

discretionary duties; 2) in good faith; and 3) while acting within

the scope of her authority. City of Lancaster v. Chambers, 883

S.W.2d 650, 653 (Tex. 1994). The good faith element, which is the

8
To commit malpractice under Texas law, Dollinger had to
have breached a duty to Shaboon that proximately caused an actual
injury. Urbach v. United States, 869 F.2d 829, 831 (5th Cir.1989).

30
only one at issue, is “substantially” the same as the federal

“objective legal reasonableness” test:

[T]he test is one of objective legal reasonableness,
without regard to whether the government official
involved acted with subjective good faith. "[W]e look to
whether a reasonable official could have believed his or
her conduct to be lawful in light of clearly established
law and the information possessed by the official at the
time the conduct occurred." Thus, qualified immunity
protects "all but the plainly incompetent or those who
knowingly violate the law.”

Chambers, 883 S.W.2d at 656 (quoting Swint v. City of Wadley, 5

F.3d 1435, 1441-42 (11th Cir. 1993)). Dollinger is thus entitled

to immunity “even if [she] acted negligently.” Chambers, 883

S.W.2d at 655. To survive summary judgment, Shaboon had to show

that “no reasonable person in [Dollinger’s] position could have

thought the facts were such that they justified [her] acts.” Id.

at 657.

Courts should resolve immunity claims “at the earliest

possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224,

227, 112 S. Ct. 534, 536 (1991) (holding that the undisputed facts

showed that agents reasonably could have believed that probable

cause existed). This is because qualified immunity is immunity

from suit rather than a mere defense to liability. Id.

“Immunity’s shield against suit is lost . . . when [government]

defendants go to trial.” Presley v. City of Benbrook, 4 F.3d 405,

410 (5th Cir. 1993).

31
 The district court found a fact issue on Dollinger’s

qualified immunity defense because she allegedly used “questionable

tactics” to convince Shaboon to go voluntarily to Villa Rosa.

Dollinger’s alleged threat to commit Shaboon was only questionable,

however, if no reasonable doctor could have concluded that Shaboon

satisfied the standards for involuntary commitment.

Under Texas Health & Saf. Code § 574.011(a)(7), Shaboon

warranted involuntary commitment if she was 1) mentally ill; 2)

suffering severe and abnormal mental or physical distress; 3)

experiencing substantial mental or physical deterioration of her

ability to function independently; and 4) unable to make a rational

and informed decision as to whether to submit to treatment.

Dollinger testified that although Shaboon could make informed

decisions, Shaboon was not thinking rationally on August 3 and

satisfied the criteria for involuntary commitment. Creson

disagreed after reviewing depositions and Shaboon’s records.

We conclude that a reasonable jury could not find that

Dollinger failed to act with objective legal reasonableness. There

is no doubt that Shaboon was suffering from some degree of mental

illness on August 3. Ticknor’s examination indicates that Shaboon

was depriving herself of sleep, normal appetite, and relaxation.

He wrote that she was physically exhausted and was suffering from

major depression. He also wrote that she needed hospitalization

for her paralyzing obsessive-compulsive disorder. Ticknor’s

32
examination indicates that a reasonable doctor could have found

that Shaboon satisfied the criteria for involuntary commitment.

Creson’s testimony fails to create an issue of fact.

Granted, he testified that a reasonable psychiatrist would not have

found that Shaboon met the standard for commitment. Creson did

not, however, explain his reasoning in any detail. He did not

offer a competing diagnosis for Shaboon’s behavior. He never

pointed to parts of Shaboon’s medical examinations as evidence that

she did not satisfy the standard. He never explained which part of

the standard Shaboon did not satisfy. Creson’s testimony

effectively represents a bald, unexplained opinion on the ultimate

issue of Dollinger’s immunity. This is not sufficient to create an

issue of fact on Dollinger’s official immunity. “[U]nsupported

affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a

motion for summary judgment.” Orthopedic & Sports Injury Clinic v.

Wang Laboratories, Inc., 922 F.2d 220, 225 (5th Cir. 1991)

(affirming summary judgment on a gross negligence claim because the

expert opinions for the plaintiff were conclusory and not supported

by sufficient facts).

Furthermore, Creson’s testimony actually suggests that

Dollinger was at most negligent. His affidavit stated only that

Dollinger “violated the standard of care” and “breached the duty of

care.” These are terms of negligence. Creson testified that he

33
had “no information” that Dollinger consciously intended to harm

Shaboon or was consciously indifferent to Shaboon’s rights and

safety. Although Dollinger’s subjective beliefs are not at issue,

Creson is effectively testifying that the circumstances did not

indicate that she acted in bad faith. Chambers establishes that

Dollinger is immune from claims that she acted negligently. Thus,

Creson’s testimony and affidavit are not sufficient to create a

fact issue on Dollinger’s immunity.

Under the circumstances, therefore, we are unwilling to

strip Dollinger of her official immunity from suit based on

conclusory expert testimony that relies on cold medical records and

transcripts to second-guess Dollinger’s discretion. We conclude

that Dollinger is entitled as a matter of law to official immunity

from Shaboon’s medical malpractice claim.

F. State’s Eleventh Amendment Immunity from ADA claim.
The Health Science Center urges its sovereign immunity

under the Eleventh Amendment from Shaboon’s Title II ADA claim.9

Appellant recognizes that it is not immune from such claims under

this court’s decision in Coolbaugh v. State of Louisiana, 136 F.3d

430, 438 (5th Cir. 1998) (holding that states are not immune from

Title II ADA claims). We will adhere to Coolbaugh and at this time

9
Although the appellants did not raise this claim in the
district court, they may do so now. Neinast v. State of Texas, 217
F.3d 275, 279 (5th Cir. 2000) (holding that this court may consider
Eleventh Amendment immunity for the first time on appeal).

34
deny sovereign immunity to the Health Science Center, without

prejudice.

The Supreme Court recently held that states retain their

Eleventh Amendment immunity from suits brought under Title I of the

ADA. Board of Trustees of the University of Alabama v. Garrett,

2001 U.S. LEXIS 1700, *32-33 (2001). In so holding, however, the

Court declined to consider whether sovereign-immunity shields the

states from suits under Title II of ADA. Id. at *8 n.1. Coolbaugh

would ordinarily remain governing law in this circuit unless the

analysis in Garrett so plainly applies to Title II suits as to

overrule Coolbaugh sub silentio. On remand, the Health Science

Center may try to persuade the district court of that impact.

Since neither party has sufficiently foreseen or briefed the impact

of Garrett, it is premature for us to decide the issue.

CONCLUSION

For the reasons stated above, we conclude that Dr.

Duncan and Dr. Dollinger were entitled to summary judgment

against Shaboon’s claims, while the Health Science Center’s

immunity from her ADA Title II claim is not facially compelled by

the Supreme Court’s recent decision on ADA Title I sovereign

immunity. The district court’s judgment is AFFIRMED in Part, and

REVERSED in Part.

35