Couch v. Board of Trustees of Memorial Hospital of Carbon County

FILED
United States Court of Appeals
Tenth Circuit

December 3, 2009
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN W. COUCH, II, M.D.,

Plaintiff-Appellant,

v.

BOARD OF TRUSTEES OF THE
MEMORIAL HOSPITAL OF
CARBON COUNTY; PATSY
No. 08-8001
CARTER; DAVID CESKO, M.D.;
DUANE ABELS, D.O.; ARCHIE
KIRSCH, M.D.; CHARLES YOUNG,
M.D.; KENNETH SCHULZE, M.D.;
PALUR SRIDHARAN, M.D.; V.
RAJA CHANDRASEKARAN, M.D.,

Defendants-Appellees.

ORDER

Before TACHA, EBEL, and HARTZ, Circuit Judges.

Through clerical error, the opinion filed in this case on November 17, 2009,

omitted the concurrence of Judge Hartz. The attached opinion, which now

includes the concurrence but is otherwise unchanged, is hereby filed nunc pro
tunc to the original filing date.

Entered for the Court

Elisabeth A. Shumaker, Clerk

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 FILED
United States Court of Appeals
Tenth Circuit

November 17, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN W. COUCH, II, M.D.,

Plaintiff–Appellant,

v.

BOARD OF TRUSTEES OF THE
MEMORIAL HOSPITAL OF
CARBON COUNTY; PATSY No. 08-8001
CARTER; DAVID CESKO, M.D.;
DUANE ABELS, D.O.; ARCHIE
KIRSCH, M.D.; CHARLES YOUNG,
M.D.; KENNETH SCHULZE, M.D.;
PALUR SRIDHARAN, M.D.; V.
RAJA CHANDRASEKARAN, M.D.,

Defendants–Appellees.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:06-CV-00052-ABJ)

Elizabeth A. Phelan (Gregory R. Piché and Mark B. Wiletsky, with her on brief),
of Holland & Hart LLP, Boulder, Colorado, for Appellant.

Janet Schroer (Monty Barnett, John Lebsack and James M. Meseck on brief), of
White and Steele, P.C., Denver Colorado, for Appellees.

Before TACHA, EBEL, and HARTZ, Circuit Judges.
EBEL, Circuit Judge.

Dr. Marvin Wayne Couch appeals from summary judgment entered in favor

of defendants, Memorial Hospital of Carbon County (“MHCC”), a small rural

hospital where he has staff privileges, the hospital’s chief administrator, and six

of the ten other physicians who have privileges at MHCC. Dr. Couch brought this

action, pursuant to 42 U.S.C. § 1983, to remedy an alleged deprivation of his First

Amendment right of free speech caused by a “campaign of retaliation” he

allegedly had to endure as a result of speaking out about substance abuse at

MHCC. The district court concluded that Dr. Couch’s claims failed because he

could not establish that the defendants actions would chill speech nor could he

establish that the defendants’ actions were substantially motivated by his speech.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM for the reasons

that follow.

I. BACKGROUND

A. Factual Background

Dr. Marvin Wayne Couch, II, M.D., is a family doctor/obstetrician in

Rawlins, Wyoming. A graduate of the University of Wyoming School of

Medicine, Dr. Couch moved to the Rawlins area in 1997 when he was recruited to

join MHCC as part of an effort to build the hospital’s obstetrics practice. Soon

after Dr. Couch joined MHCC, interpersonal conflicts began to develop between

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Dr. Couch and Dr. David Cesko, M.D., another family doctor and obstetrician

who joined MHCC about the same time as Dr. Couch. Dr. Couch began to have

conflicts with medical staff as well. 1 Time, however, did not heal Dr. Couch’s

relationships with Dr. Cesko or hospital staff.

By the summer of 2001, Dr. Couch had begun to suspect that Dr. Cesko and

other staff physicians at MHCC were using alcohol and illegal drugs. Dr. Couch

shared his concerns with the hospital’s chief executive, Patsy Carter, and after he

found her unresponsive, reported these concerns to the Wyoming Board of

Medicine (“WBM”), a state agency that governs licensing of medical doctors. To

address these concerns, Dr. Couch also approached the hospital’s Board of

Trustees about changing the hospital’s testing policy from a for-cause drug and

alcohol testing policy to a random testing policy. The Board subsequently

discussed a random testing policy over several monthly Board meetings in the

winter and spring of 2002, but ultimately concluded not to implement any changes

to the drug and alcohol testing policy. Dr. Couch, however, continued to raise

1
These conflicts were first documented in 1999 in a report by the American
College of Obstetricians and Gynecologists (“ACOG”) on the quality of care of
MHCC’s obstetrics practice. The ACOG report was voluntarily solicited by
MHCC to evaluate Drs. Couch and Cesko’s “qualifications and skill levels” to
provide certain obstetric services. (Aplt. App. 374) The report specifically noted
that Dr. Couch was “hypersensitiv[e] to criticism,” that he had a demeanor that
others perceived “to be more arrogant and abrasive than [Dr. Couch] realizes or
intends,” and that Dr. Couch “seems less willing than [Dr. Cesko] to openly share
and explain his thought processes to the nursing staff in order to foster an
educational process. (Id. at 383-88.)

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concerns about substance abuse at MHCC, and even filed a request with the

WBM, in November 2002, to drug test a fellow physician, Dr. Scott Thomas, and

to investigate whether Dr. Thomas had mistreated patients as a result of a drug

impairment. Dr. Couch also continued to advocate for random drug and alcohol

testing, for instance, when he delivered a presentation to the Wyoming Healthcare

Commission at a September 2003 meeting, endorsing “a policy for the random

testing for drugs and alcohol for physicians and other health care providers.”

(Aplt. App. 1277, 1289.)

In 2006, Dr. Couch subsequently brought this action pursuant to 42 U.S.C.

§ 1983, alleging that the hospital and various individual defendants, who were on

hospital committees, instituted a “campaign” of retaliation against him for his

advocacy of a drug and alcohol testing, in violation of his First Amendment right

to free speech. The alleged “campaign” of retaliation included his non-

reappointment to a seat on the Medical Staff Performance Assessment and

Improvement Committee; several hospital investigations into disruptive conduct

by Dr. Couch; alleged patient mistreatment; billing and Medicare fraud; and the

hospital’s subsequent implementation of the corrective actions recommended by

those investigations. We will briefly detail the hospital’s investigations involving

Dr. Couch and the hospital’s corrective action below, which was thoroughly

recounted by the district court in its order granting summary judgment for the

defendants.

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 1. 2001 Rardin Investigation

The first alleged incidents of retaliation arose in October 2001, when

MHCC’s counsel, at the direction of the hospital’s Board of Trustees (the

“Board”), solicited Thomas Rardin, a private investigator, to investigate the

relationship between Drs. Couch and Cesko. As Rardin noted in his report of the

investigation, the Board was concerned that the acrimonious relationship might

“adversely affect[]” employees and the community. (Aplt. App. 471.) After

interviewing numerous staff members, and the doctors themselves, Rardin

concluded both doctors had engaged in inappropriate conduct towards each other. 2

Rardin’s report recommended that the hospital should send a letter to both

doctors “telling them to stop and either get along or maturely tolerate each other,”

and discussed the possibility of “psychological testing.” (Id. at 421.)

MHCC’s Chairman of the Board of Trustees, Judy Merrill, adopted

Rardin’s recommendation and sent Dr. Couch a letter, which acknowledged that

the report uncovered disruptive conduct, and that clarified hospital procedures,

instructed him not to ask people about Dr. Cesko’s personal life and not to make

disparaging comments about Dr. Cesko, and to follow the established chain of

command with regards to all complaints about hospital staff. Ms. Merrill sent a

2
Rardin noted that “Dr. Cesko appears to have lowered the level of his
[negative] activities and conduct in relation to Dr. Couch”; however, many of the
interviewees “believe[d] that Dr. Couch has not changed much and may not be
able to change.” (Aplt. App. 419-21.)

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similar letter to Dr. Cesko. Dr. Couch considered that the letter only “asked

[him] to do [ ] things [he] was already doing.” (Id. at 981.)

2. Disruptive Conduct Investigation

As discussed above, Dr. Couch filed a complaint with the WBM in

November 2002, alleging Dr. Thomas made two critical errors, and requested

“that the Board of Medicine require a hair drug test of Dr. Thomas . . . .” (Aplt.

App. 558-59.) On April 14, 2003, the WBM informed Dr. Couch by letter that

the Board’s “investigation of this matter has disclosed no evidence that Dr.

Thomas was either impaired and/or incompetent as alleged in your complaint.”

(Id. at 563.) Following the WBM’s finding that Dr. Couch’s complaint against

Dr. Thomas and his request for Dr. Thomas to undergo drug testing were

unsubstantiated, Dr. Thomas, on May 20, 2003, filed a “disruptive conduct

report” 3 with MHCC’s Executive Committee, 4 complaining that Dr. Couch

reported Dr. Thomas to the WBM without first discussing those concerns with Dr.

3
The hospital’s disruptive conduct policy provides that “[s]ingle incidents
or patterns of conduct which demonstrate unprofessional or uncooperative
behavior constitute disruptive conduct, and shall be addressed in accordance with
this policy.” (Aplt. App. 1069.)
4
MHCC has numerous different committees that are largely composed of
physicians who have privileges at the hospital, and also often include the
hospital’s chief administrator. The hospital’s bylaws provide that the Executive
Committee’s has broad responsibilities including “coordinat[ing] the activities
and general policies of the various [hospital] services”; “receiv[ing] and act[ing]
upon committee reports]”; and “implement[ing] policies of the Medical Staff.”
(Aplt. App. 661.)

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Thomas and following internal review procedures. 5 In response to the complaint,

on June 19, 2003, Dr. Duane Abels, the hospital’s chief of staff, established an ad

hoc committee consisting of Drs. Archie Kirsch and Charles Young to investigate

Dr. Thomas’s complaint. In turn, the ad hoc committee hired Thomas Rardin to

investigate the matter.

As a result of his investigation, Rardin prepared a report detailing the

substance of his interviews with the doctors and medical staff, 6 which the ad hoc

committee relied on in its “findings of investigation,” dated September 18, 2003,

concluding that “the method Dr. Couch chose to handle his complaint about Dr.

Thomas’ care . . . was inappropriate” and “constitute[d] disruptive conduct.”

(Aplt. App. 669.) The ad hoc committee explained that Dr. Couch’s conduct was

inappropriate because he “did not follow established practices of medical staff

peer review. [And] Dr. Couch was not open and honest with Dr. Thomas or the

Critical Care Committee [investigating Dr. Thomas’s alleged errors] about his

5
Dr. Thomas also stated his belief that Dr. Couch’s report to the WBM was
“less an anxious expression of true concern . . . for patient care and more a crass
and calculated attack on myself and my license to practice.” (Aplt. App. 566.)
Dr. Thomas later explained that “he believe[d] that Couch made the complaint
against him because of his opposition to random drug testing.” (Id. at 677.)
6
Rardin investigated the allegations in the complaint and conducted
interviews of Drs. Couch and Thomas, as well as hospital staff members and
Ms. Carter. Rardin’s report also included an interview with an anonymous nurse
who explained that he or she was concerned about Dr. Couch’s mistreatment of a
patient, who subsequently died under his care, and that Dr. Couch’s medical and
billing records did not accurately reflect Dr. Couch’s treatment of the patient.

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feelings that Dr. Thomas was impaired and committed ‘two major medical

mistakes.’” (Id.) The ad hoc committee then forwarded its report on the

disruptive conduct complaint to the Credentials Committee. 7

The Credentials Committee “concluded that in order for the investigation to

proceed a mental/psychiatric evaluation is needed.” (Aplt. App. 1357.) By a

letter dated October 31, 2003, the Committee directed Dr. Couch to receive an

evaluation, at his own expense, with Dr. Michael Gendel in Denver, Colorado.

After evaluating Dr. Couch on January 23, 2004, interviewing Dr. Couch’s

references, and reviewing pertinent documents from the hospital, Dr. Gendel

prepared a report, dated February 2004, concluding that Dr. Couch did not suffer

from a mental illness or disability. However, Dr. Gendel did recommend that Dr.

Couch seek pyschotherapeutic help to “develop more nuanced social skills and to

better recognize social demands and realities,” or alternatively “coaching,” which

is “a kind of assistance which focuses on the practical difficulties faced in

difficult workplace situations, and their practical solutions.” (Id. at 694.)

The Credentials Committee reviewed Dr. Gendel’s report and on May

11, 2004, it recommended to the Executive Committee that Dr. Couch “be placed

7
The Credentials Committee’s responsibilities, according to the hospital’s
bylaws, include “review[ing] the credentials of all applicants for medical staff
appointment, reappointment, clinical privileges [and] mak[ing] investigations of .
. . such applicants as may be necessary”; and “maintain[ing] continuing
surveillance of the professional performance of all individuals who have clinical
privileges in the hospital, and report and make recommendations to the Board as
needed.” (Aplt. App. 656.)

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on probation,” that he be ordered to “undergo psychotherapeutic treatment with a

psychiatrist chosen by the Credentials Committee,” that he be required to meet

with the Credentials Committee every three to six months and present a progress

report from the psychiatrist, and that medical staff be informed of the situation

and required to report any disruptive behavior. (Aplt. App. 1359.)

On June 2, 2004, the Executive Committee approved all of the Credentials

Committee’s recommendations concerning Dr. Couch’s disruptive conduct,

including the probation recommendation, and Dr. Couch was advised accordingly.

On January 20, 2005, the Executive Committee revisited this decision and

affirmed its June 2, 2004 disposition. Dr. Couch subsequently appealed the

Executive Committee’s action to an independent three-person hearing panel. 8

3. Billing Fraud Investigation

On September 30, 2003, around the time the ad hoc committee had

completed its investigation of the disruptive conduct complaint, Patsy Carter,

suspecting that Dr. Couch might have billed for services he did not perform, sent

the records of three patients 9 to the Mountain-Pacific Quality Health Foundation

8
An appeal normally would go before the “Committee of the Whole,” but
Dr. Couch entered into an agreement with the hospital for his appeal to be heard
before an independent panel.
9
The first patient whose records were sent to MPQHF was Joe Jones, a
member of the MHCC Board of Trustees who was treated by Dr. Couch on July
29, 2002. Mr. Jones initially reported his dissatisfaction with the way he was
billed to Ms. Carter in October 2002. After consulting with MHCC’s attorney,
(continued...)

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(“MPQHF”) for evaluation of whether Dr. Couch committed Medicare or billing

fraud. 10 MPQHF’s report confirmed the hospital’s suspicions, and indicated that

both of MPQHF’s peer reviewers concluded that Dr. Couch apparently was billing

for services that were not performed. The report recommended that Dr. Couch

receive thirty hours of training in charting in the next six months, be suspended

from call rotation for six months, and be required to dictate all his charts within

twenty-four hours of providing patient services. Further, the report recommended

that Dr. Couch be reported “to the Wyoming Board of Medicine and to the

9
(...continued)
Ms. Carter told him that he should raise billing issues with Medicare. Mr. Jones
initially filed a complaint with Medicare but “called them back and ‘dropped his
complaint’ . . . [because] this was a serious matter and . . . he did not want to
‘ruin Dr. Couch’s life.’” (Aplt. App. 1328.)

The second patient, Sharon Wilda, was treated by Dr. Couch in March
2002. Ms. Wilda later reported to Dr. Young that Dr. Couch had billed for an
“extensive Health and Physical” but had only looked down her throat and listened
to her heart. (Id. at 1329.)

The third patient, Corrine Klewin, was treated by Dr. Couch in April 2003.
Ms. Klewin presented with shortness of breath and the nurses paged Dr. Couch
multiple times but he did not arrive until over three hours later. By that time, the
patient had “coded,” and was placed on a ventilator. Dr. Couch billed for a
complete physical, although he apparently could not have conducted such a
physical once the patient had “coded.” Rardin’s investigation had revealed that at
least one nurse considered that Dr. Couch had billed for services that he could not
have performed in this case.
10
It is disputed whether the hospital’s Medical Staff PA&I Committee had
initially determined that it suspected that Dr. Couch had engaged in inappropriate
billing practices before Ms. Carter sent the records out to be independently
evaluated by MPQHF.

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National Practitioner Data Bank for his careless actions.” (Aplt. App. 1032.) As

per MPQHF’s recommendations, Ms. Carter forwarded MPQHF’s report to the

WBM. 11

Based on the results of the MPQHF report, the Credentials Committee, on

March 2, 2004, informed Dr. Couch that he was required “to obtain 30 hours of

training on proper coding and physician responsibility for coding in a formal

setting within the next 6 months.” (Aplt. App. 1372.) In an apparent effort to get

that training, Dr. Couch subsequently “attended a practice management course”;

however, the Credential Committee determined that the course did not fulfill the

proper course training requirements. (Id.) This matter was then forwarded to the

Executive Committee, which voted, on January 20, 2005, “to reduce [Dr.

Couch’s] clinical privileges in that he will be suspended from call rotation for

unassigned patients until he attends a total of 30 hours of training in proper

coding and physician responsibility in coding.” (Id. at 700.)

11
In response, on August 3, 2004, the WBM sent a letter to Dr. Couch
addressing the billing issues; although the letter did not conclude that he
fraudulently billed, it admonished him for his failure to promptly chart the
services of these three patients. The letter of admonition was made part of Dr.
Couch’s permanent file, but it was not made available to the public.

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 4. Patient Mistreatment Issues

In January 2005, the Medical Staff Performance Assessment and

Improvement (“PA&I”) Committee 12 began a review of several of Dr. Couch’s

cases, including the death of a patient, Corrine Klewin, while under Dr. Couch’s

care. The Critical Care Committee had previously initiated the review after

Klewin’s death in 2003, and had sent her medical records to be reviewed by an

independent reviewer, who had noted that the main cause of death was

“hyperglycemia and acidosis,” not hypotension, which was the main focus of Dr.

Couch’s treatments. (Aplt. App. 1026.) Based on the PA&I’s review of Dr.

Couch’s treatment of Ms. Klewin, the Committee requested him to attend

appropriate continuing medical education training on diabetic ketoacidosis.

5. Administrative Proceeding

On February 1, 2005, Patsy Carter sent Dr. Couch a letter formally

charging him with two counts of disruptive conduct. Count I involved a litany of

events including Dr. Couch’s conflicts with Drs. Cesko and Thomas, and his

recent failure to attend psychiatric treatment as required by the Executive

Committee. Count II involved MHCC’s concerns about Dr. Couch’s charting and

billing practices and his failure to attend training in proper coding as required by

12
The Medical Staff PA&I Committee’s responsibilities, according to the
hospital’s bylaws, include “monitor[ing] compliance with the Medical Staff PA&I
Plan”; “review[ing[ fallouts of designated Medical Staff PA&I indicators to
identify opportunities for improvement”; and “review[ing] clinical pertinence.”
(Aplt. App. 655.)

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the Executive Committee. Dr. Couch requested a due process hearing on these

charges, and MHCC and Dr. Couch entered into an agreement for a hearing before

an independent panel.

The scope of the hearing was subsequently expanded after the Credentials

Committee voted to recommend denying Dr. Couch’s reappointment to the

medical staff of MHCC, which was communicated to Dr. Couch in January 2006.

Re-appointment is required every two years, and based on Dr. Couch’s

“behavioral issues” and inappropriate care and treatment of several patients,

including Ms. Klewin, the Credentials Committee had recommended to the Board

that Dr. Couch not be reappointed to the medical staff.

The independent hearing panel heard testimony over four days in May and

July of 2006, during which time Dr. Couch was represented by legal counsel. On

July 26, 2006, the independent three-person panel issued a thorough report. The

panel determined that Dr. Couch “is a generally technically proficient

practitioner” but had provided substandard care to several patients, including

substandard management of diabetic ketoacidosis in the case of Corrine Klewin.

(Aplt. App. 1069.) The panel concluded, however, that Dr. Couch had only billed

for services that he had actually performed to Ms. Klewin, and that the panel did

not have enough information to determine whether Dr. Couch had or had not

billed for services that he did not perform for Ms. Wilda or Mr. Jones. The panel

further found that Dr. Couch’s inability to accept responsibility and “get along

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with many of his peers” is “disruptive to hospital operations and impact[s]

negatively on his ability to deal with hospital employees [and medical staff

members].” (Id. at 1076.) Also, the panel found that “Dr. Couch is disruptive in

that he fails to fulfill his work on the committees of the hospital.” 13 (Id.)

The hearing panel ultimately recommended that: (1) Dr. Couch should be

evaluated by a mutually agreed-upon psychiatrist; (2) Dr. Couch should properly

follow-up on any recommendations made by the psychiatrist; (3) Dr. Couch

should “make a documented good faith effort to improve relations” with MHCC

staff and doctors; (4) Dr. Couch should attend his committee meetings; (5)

Dr. Couch should “demonstrate competence in Diabetic Ketoacidosis

management”; and (6) Dr. Couch’s privilege to continue practicing at MHCC

should be “conditionally granted subject to the foregoing terms.” (Aplt. App.

1071-72.)

13
The panel also noted that the Executive Committee lacked the authority
to enforce its recommendation that Dr. Couch seek psychiatric assistance, but that
the recommendation was fair (although the panel felt that the psychiatrist should
have been a person who was mutually agreeable to Dr. Couch and the hospital not
a psychiatrist selected by the hospital). Likewise, the panel determined that the
Executive Committee could not place Dr. Couch on probation, but that “Dr.
Couch knew or should have known, from the bylaws, [that] the Executive
Committee could not [have] imposed [the] probation.” (Aplt. App. 1065.)

The panel also addressed Dr. Couch’s concerns that many of the physicians
who testified before the panel were biased against him, and found that the
“proceedings were not motivated by an improper bias.” (Id. at 1067.) Similarly,
the panel concluded that these proceedings were not “motivated by any improper
bias.” (Id.)

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 On October 23, 2006, the Board of Trustees adopted the independent

panel’s recommendations with only minor alterations. 14 (Aplt. App. 1082-84.)

B. Procedural Background

On November 6, 2007, the district court granted the defendants summary

judgment and Dr. Couch timely filed a Rule 59(e) motion to alter or amend the

judgment. Dr. Couch argued that additional evidence, including an affidavit from

an individual that she sold drugs to Dr. Cesko, established that defendants had a

motive to retaliate against him for his efforts to institute a random alcohol and

drug testing program because they were abusing drugs or alcohol or wanted to

protect or cover-up others’ substance abuse. The district court denied the motion,

and this appeal follows.

II. DISCUSSION

A. Standard of Review

We review de novo the district court’s grant of summary judgment,

applying the same legal standard used by the district court. Brammer-Hoelter v.

Twin Peaks Charter Acad., 492 F.3d 1192, 1201 (10th Cir. 2007). Summary

14
The Board also stated that “[a] documented good faith effort” in
improving his relations with MHCC staff and doctors “shall be noted by the
absence of medical staff and/or hospital employees incident reports concerning
Dr. Couch’s disruptive conduct.” (Aplt. App. 1083.) Further, the Board noted
that “[w]hile adopting the Hearing Panel’s recommendations . . . it is the Board’s
decision that the same should be complied with in the strictest sense and
noncompliance will result in Dr. Couch’s medical staff privileges being
immediately terminated by the Board of Trustees.” (Id.)

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judgment should be granted “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). “When applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving

party.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.,

165 F.3d 1321, 1326 (10th Cir. 1999). Because this case involves the First

Amendment, we independently examine the whole record to assure that the

district court’s judgment “does not constitute a forbidden intrusion on the field of

free expression.” Brammer-Hoelter, 492 F.3d at 1201 (quoting Citizens for Peace

in Space v. City of Colo. Springs, 477 F.3d 1212, 1219 (10th Cir. 2007)).

B. Garcetti/Pickering Analysis

“[T]he First Amendment protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of public concern.”

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968). Therefore, “a public employer cannot retaliate

against an employee for exercising his constitutionally protected right of free

speech.” Dill v. City of Edmond, Okla., 155 F.3d 1193, 1201 (10th Cir. 1998)

(citing Connick v. Myers, 461 U.S. 138, 146-47 (1983)). When analyzing a free

speech claim based on retaliation by an employer, this court applies the five-

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prong Garcetti/Pickering test. Dixon v. Kirkpatrick, 553 F.3d 1294, 1301-02

(10th Cir. 2009). Under the Garcetti/Pickering analysis,

First, the court must determine whether the employee speaks
pursuant to his official duties. If the employee speaks pursuant to his
official duties, then there is no constitutional protection because the
restriction on speech simply reflects the exercise of employer control
over what the employer itself has commissioned or created. Second,
if an employee does not speak pursuant to his official duties, but
instead speaks as a citizen, the court must determine whether the
subject of the speech is a matter of public concern. If the speech is
not a matter of public concern, then the speech is unprotected and the
inquiry ends. Third, if the employee speaks as a citizen on a matter
of public concern, the court must determine whether the employee's
interest in commenting on the issue outweighs the interest of the
state as employer. Fourth, assuming the employee’s interest
outweighs that of the employer, the employee must show that his
speech was a substantial factor or a motivating factor in a detrimental
employment decision. Finally, if the employee establishes that his
speech was such a factor, the employer may demonstrate that it
would have taken the same action against the employee even in the
absence of the protected speech.

Brammer-Hoelter, 492 F.3d at 1202-03 (internal quotations and alterations

omitted). We have noted that “[i]mplicit in the [Garcetti/]Pickering test is a

requirement that the public employer have taken some adverse employment action

against the employee.” Belcher v. City of McAlester, Okla., 324 F.3d 1203, 1207

n.4 (10th Cir. 2003).

C. Application of the Garcetti/Pickering Analysis

Dr. Couch alleges that he exercised his First Amendment right to speak in

two ways: (1) by advocating for a random drug and alcohol testing policy and (2)

by reporting to the hospital and WBM his concern that Dr. Thomas had a

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substance abuse problem. 15 The parties dispute whether Dr. Couch’s speech is

protected speech, i.e., whether it satisfies the first three prongs of the

Garcetti/Pickering test. We need not reach those issues because even assuming,

without deciding, that Dr. Couch’s speech is protected, we nonetheless conclude

that he has failed to establish the fourth prong of Garcetti that his speech was (a)

a substantial factor or a motivating factor in an (b) adverse employment action.

i. Substantial Motivating (Causation) Factor and Detrimental
Employment Decision (Adverse Employment Action)

Under the fourth-prong of Garcetti, plaintiffs bear the burden of

establishing both a detrimental employment decision (adverse employment action)

and “causation—that is, that the constitutionally protected speech was a

substantial motivating factor in the employer’s decision to adversely alter the

employee’s conditions of employment.” Maestas v. Segura, 416 F.3d 1182, 1188

& n.5 (10th Cir. 2005).

The district court granted summary judgment in favor of defendants

because Dr. Couch was unable to establish a genuine issue of fact on step-four of

the Garcetti-analysis. The court concluded that Dr. Couch had established neither

(a) any adverse employment action by defendants nor (b) that any or all of the

defendants’ actions were motivated by Dr. Couch’s speech. Like the district

15
Dr. Couch’s complaint only appears to allege that he exercised his First
Amendment right to speak in regards to his advocacy of a random drug and
alcohol testing policy; however, both parties address whether Dr. Couch’s
complaints about Dr. Thomas were protected speech.

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court, we will consider in the analysis that follows both parts of Dr. Couch’s

burden at step four: that he establish an adverse employment action and that he

establish causation.

With regard to the need to show causation as part of the fourth prong of

Garcetti, we have said “Although protected conduct closely followed by adverse

action may justify an inference of retaliatory motive, the mere temporal proximity

of Plaintiff’s protected speech to the adverse action is insufficient, without more,

to establish retaliatory motive.” Baca v. Sklar, 398 F.3d 1210, 1221 (10th Cir.

2005) (internal quotations, citations and alterations omitted). We have explained,

for instance, that it might be relevant in establishing a retaliatory motive that “the

employer expressed opposition to the employee’s speech,” Maestas, 416 F.3d at

1189, or that “the protected speech implicated the individual defendant in

wrongdoing.” Baca, 398 F.3d at 1221. On the other hand, we also have

explained that “evidence such as a long delay between the employee’s speech and

challenged conduct, or evidence of intervening events, tend to undermine any

inference of retaliatory motive and weaken the causal link.” Maestas, 416 F.3d at

1189 (internal citations omitted).

With regard to the need to show a detrimental employment decision or an

adverse employment action as part of the fourth prong of Garcetti, the Supreme

Court has noted that First Amendment protection extends beyond employer

conduct amounting to termination of employment or the substantial equivalent.

- 19 -
Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990). In Rutan, the

Supreme Court noted that such a limit would “fail to recognize that there are

deprivations less harsh than dismissal that nevertheless press state employees and

applicants to conform their beliefs and associations to some state-selected

orthodoxy.” 16 Id. In so doing the Court recognized that promotions, transfers,

recalls after layoff, and hiring decisions are actionable conduct. Id. Likewise,

this court has recognized that certain types of less severe conduct can be the basis

for a First Amendment claim, as we have noted on more than one occasion that

“some forms of retaliation may be actionable under the First Amendment while

insufficient to support a discrimination claim under Title VII.” Maestas, 416 F.3d

at 1188 n.5 (citing cases); see also Brammer-Hoelter, 492 F.3d at 1208

(forbidding teachers to speak with parents about school matters and blacklisting

teachers from future employment at the school could be an actionable adverse

employment action for First Amendment purposes); Schuler v. City of Boulder,

189 F.3d 1304, 1310 (10th Cir. 1999) (removing an employee’s job duties, issuing

a written reprimand, giving a poor performance evaluation, and transferring an

employee can be actionable in the First Amendment context). But “we have never

ruled that all [of an employer’s acts], no matter how trivial, are sufficient to

16
Although Rutan arose in the political patronage context, it has informed
our court’s determinations of the scope of actionable retaliation under the First
Amendment. See Schuler, 189 F.3d at 1309.

- 20 -
support a retaliation claim.” Lybrook v. Members of Farmington Mun. Sch. Bd.

of Educ., 232 F.3d 1334, 1340 (10th Cir. 2000).

In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53

(2006), the Court held that the actionable adverse employment action is broader

in the Title VII-retaliation context than in the Title VII-substantive

discrimination-context. Id. at 61. Specifically, the Court held that in order for an

employer’s conduct to be actionable, a plaintiff must show that the conduct

“might have dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Id. at 68 (internal quotation and citation omitted). This

standard is analogous to our definition of an adverse action in First Amendment

retaliation claims against defendants other than the plaintiff’s employers. Worrell

v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (Plaintiff must establish “that the

defendant’s actions caused the plaintiff to suffer an injury that would chill a

person of ordinary firmness from continuing to engage in that activity.” (internal

quotation omitted)). Also, this standard is consonant with the Supreme Court’s

discussion in Rutan that “deprivations” which “press state employees and

applicants to conform their beliefs and associations to some state-selected

orthodoxy” raise First Amendment concerns. 497 U.S. at 75.

The test in Burlington Northern is also consonant with our First

Amendment employment retaliation cases. For instance, just as Burlington

Northern held in the Title VII-retaliation context, we have explained that an

- 21 -
adverse action for purposes of retaliation under the First Amendment can be

broader than adverse actions in the Title VII discrimination context. Maestas, 416

F.3d at 1182 n.5 (noting that “some forms of retaliation may be actionable under

the First Amendment while insufficient to support a discrimination claim under

Title VII”). Additionally, the test in Burlington Northern is analogous to the

standard articulated by several other circuits in the First Amendment context.

See, e.g., Matrisciano v. Randle, 569 F.3d 723, 730 (7th Cir. 2009) (employee

must establish that “he suffered a deprivation likely to deter free speech”),

abrogation on other grounds recognized in Fairley v. Andrews, 578 F.3d 518,

525-26 (7th Cir. 2009); Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 (2d

Cir. 2006) (adopting Burlington Northern standard in the First Amendment

retaliation context); Nair v. Oakland County Cmty. Mental Health Auth., 443

F.3d 469, 478 (6th Cir. 2006) (adverse action means “an injury that would likely

chill a person of ordinary firmness from continuing to engage in [the protected]

activity”). But see Akins v. Fulton County, Ga., 420 F.3d 1293, 1300-01 & n.2

(11th Cir. 2005) (action must tend to chill free speech and alter some important

condition of employment to be adverse; but also observing that the First

Amendment and Title VII standards are “consonant”).

Therefore, in determining whether Dr. Couch’s complaints of retaliation

satisfy the fourth Garcetti-prong, we will consider whether the hospital’s specific

- 22 -
actions would “deter a reasonable person from exercising his . . . First

Amendment rights.” Brammer-Hoelter, 492 F.3d at 1208.

2. Application of the Prong Four Requirements of Causation and
Adverse Employment Action to the Allegations in This Case

a. 2001 Rardin Investigation and Corrective Action

Dr. Couch asserts that the first Rardin investigation, in 2001, which

occurred shortly after Dr. Couch first raised the issue of a random drug and

alcohol policy, and the Board of Trustee’s subsequent letter addressing the

investigation were retaliatory. Under the circumstances here, we conclude that

neither the investigation nor the letter constitute an adverse employment action

for First Amendment purposes.

A reasonable employee would not be deterred from exercising his First

Amendment rights because he was a subject of Rardin’s investigation. As the

Supreme Court explained in Burlington Northern, “[c]ontext matters” in

determining whether an employer’s conduct is actionable. 548 U.S. at 69

(explaining that “[t]he real social impact of workplace behavior often depends on

a constellation of surrounding circumstances, expectations, and relationships

which are not fully captured by a simple recitation of the words used or the

physical acts performed” (quoting Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 81-82 (1998)). Here, Rardin’s investigation was not just targeted at

Dr. Couch but was focused on both Drs. Couch and Cesko, and was commenced

- 23 -
after the ACOG report had already documented the interpersonal conflicts that

existed between the two doctors. Cf. Pierce v. Texas Dept. of Criminal Justice,

Inst. Div., 37 F.3d 1146, 1150 (5th Cir. 1994) (holding that investigating an

employee, where that investigation did not lead to any adverse action against the

employee, is not actionable under the First Amendment).

While Rardin’s report and recommendations ultimately led to the Board

issuing a letter, dated November 21, 2001, to Dr. Couch, this letter was also not

actionable because a reasonable person would not be deterred from speaking as a

result of the letter. Although a letter of reprimand may sometimes contribute to

an adverse employment action, particularly in the context of other conduct, Dr.

Couch has failed to establish that it could be considered adverse action here. Cf.

Baca, 398 F.3d at 1221 (reprimand in contravention of employer’s protocol in

conjunction with other conduct was actionable); Schuler, 189 F.3d at 1310

(written letter of reprimand concerning employee’s discussions of protected

speech as part of other extensive negative conduct was actionable). Although the

letter noted that the investigation revealed “disruptive” behavior, it did not

discuss Dr. Couch’s advocacy for a random testing policy; instead the letter

focused on recommended changes in Dr. Couch’s conduct. The recommendations

clearly were reasonable since Dr. Couch admitted he already was doing those

things. See Lybrook, 232 F.3d at 1341 (mandating a teacher to comply with a

professional development plan, meet with her supervisor on a regular basis, and

- 24 -
strive to act professionally towards her colleagues, although unwelcome, “are of

insufficient gravity to premise a First Amendment violation”). And Dr. Couch

was aware that a similar letter was also issued to Dr. Cesko, who had not engaged

in any protected speech. Thus, a reasonable person would not be deterred from

engaging in protected speech as a result of receiving the Board’s November 21,

2001 letter and so do not constitute adverse employment action.

Moreover, even if either the investigation or the letter were to constitute an

adverse employment action, Dr. Couch has failed to establish that his speech was

a motivating factor in causing these actions. The mere temporal proximity

between his speech and the events is insufficient here to establish a retaliatory

motive. The Rardin investigation and resulting Board’s actions were directed

equally at Dr. Cesko, who did not engage in any protected speech, and Dr. Couch

has failed to establish that Rardin or the Board had any reason to retaliate against

him for his speech. Although the Board eventually disagreed with Dr. Couch’s

proposals, it considered his proposals, and its ultimate decision not to implement

Dr. Couch’s proposed changes is not sufficient here to infer a retaliatory motive.

b. Non-reappointment to Medical Staff PA&I Committee

Dr. Couch also asserts that the hospital’s decision in July of 2003, not to

reappoint 17 him to his seat on the Medical Staff Performance and Assessment and

17
Dr. Couch statement that he was “removed” from this committee does not
accurately reflect the hospital’s action. The hospital has many committees
(continued...)

- 25 -
Improvement (“PA&I”) Committee was actionable. Although Dr. Couch

complains about his non-reappointment to the seat on the PA&I committee, he

does not explain the importance of the committee, whether a seat on the

committee is desirable from an employment perspective, or whether non-

reappointment can be considered comparable to a demotion. Cf. Schuler, 189

F.3d at 1309 (removing an important job duty from an employee can be

actionable); Baca, 398 F.3d at 1221 (depriving supervisory responsibilities can be

actionable). A seat on the committee could just as easily be considered a chore

instead of a benefit, and indeed Dr. Couch has had chronic problems of

attendance at hospital committee meetings—during the subsequent year his

meeting attendance numbers were abysmal, less than twenty percent, and far

below the requirements for reappointment of privileges. Indeed, Dr. Couch was

absent from the last two PA&I committee meetings before he was not re-

appointed. Under these circumstances, Dr. Couch has failed to establish that his

non-reappointment to the PA&I committee could have constituted actionable

retaliation.

17
(...continued)
composed of medical staff, and a condition of privileges at the hospital is at least
50% attendance on appointed committees. Appointments are made for a term, and
after the term expires, the hospital is free to appoint another individual to the
seat.

- 26 -
 c. Disruptive Conduct Investigation and Resulting Action

The most significant action taken against Dr. Couch were the restrictions

and requirements on Dr. Couch that flowed through investigations and

recommendations by the Ad hoc Committee, the Credentials Committee, the

Executive Committee and ultimately adopted by the Board of Trustees. Those

restrictions and requirements revolved around three major areas of concern:

disruptive conduct, billing fraud, and mistreatment of patients.

i. Ad hoc Committee’s Investigation

First, Dr. Couch asserts that the hospital’s investigation and corrective

action requirements resulting from Dr. Thomas’s disruptive conduct complaint

was in retaliation for his filing of a complaint against Dr. Thomas with the WBM.

After the hospital’s chief of staff Dr. Abel formed an ad hoc committee to

investigate Dr. Thomas’s report, the ad hoc committee hired Rardin to investigate

Dr. Couch’s alleged disruptive conduct. Like Rardin’s earlier investigation, this

investigation was of insufficient gravity to invoke First Amendment protection.

The ad hoc committee had no authority over Dr. Couch—it was only created to

investigate actions—and the matter was then forwarded to the Credentials

Committee, along with the ad hoc committee’s report that Dr. Couch’s handling

of his complaint was inappropriate, because “he did not follow established

practices of medical review” and “was not open and honest with Dr. Thomas or

the Critical Care Committee” investigating Dr. Thomas’s alleged errors.

- 27 -
 ii. Credentials Committee

After the Credentials Committee received the ad hoc committee’s

recommendations, it required Dr. Couch to submit to a mental/psychiatric

examination in order for the committee properly to decide on the appropriate

further action. In the context of this situation, that requirement did not constitute

an adverse employment action. Dr. Couch had documented difficulties getting

along with other doctors and staff at the hospital. Indeed, the independent ACOG

report, which was solicited before Dr. Couch ever engaged in potentially

protected speech, and the first Rardin investigation actually encouraged

counseling and anger management. Thus, the requirement for a one-time

psychiatric counseling had an understandable context and was minimally invasive

because it was only a one-time consultation. 18

Even if the requirement for a one-time psychiatric evaluation could be

considered an adverse action, Dr. Couch has failed to establish that the

Credentials Committee’s action was retaliatory. The temporal proximity between

the request for a psychiatric evaluation and Dr. Couch’s complaint with the WBM

was eleven months and is tenuous support for an inference of retaliation. Such

temporal proximity is insufficient without any other evidence that Dr. Couch’s

speech was a substantial motivating factor of the Committee’s conduct. See

18
It also appears that Dr. Couch may not even have known about the
ACOG report or Rardin’s recommendations before the Credential Committee’s
actions.

- 28 -
Maestas, 416 F.3d at 1189 (“temporal proximity is insufficient, without more, to

establish such speech as a substantial motivating factor in an adverse employment

decision”).

Furthermore, because the decision-maker was a committee, Dr. Couch

would need to establish that a majority of the members who voted on action were

biased or that a biased member was a substantial influence over the committee’s

ultimate action in order to satisfy his burden to establish causation. The

Credentials Committee consisted of Drs. Schulze, Chandra, Cesko, Sridharan, and

Smith, and Patsy Carter. Dr. Couch has presented some evidence that Drs. Cesko

and Sridharan had alcohol or drug abuse issues, which might suggest why they

would want to retaliate against him for his advocacy of a random testing policy.

See Maestas, 416 F.3d at 1189 (“Other evidence of causation may include

evidence the employer expressed opposition to the employee’s speech, or

evidence the speech implicated the employer in serious misconduct or

wrongdoing.”) (citation omitted). However, such a motive is pretty weak since

the hospital had already rejected Dr. Couch’s proposal and it is doubtful that the

physicians would have considered Dr. Couch’s speech was a threat to them

because the hospital already had indicated that it was concerned about physician

privacy by not requiring Dr. Thomas to undergo a drug test after concluding there

was not probable cause to suspect that he was using drugs. Dr. Couch’s speech

thus posed almost no threat to Drs. Cesko and Sridharan and would provide little

- 29 -
motive for them to retaliate. Additionally, Dr. Couch has produced only minimal

evidence that Ms. Carter might want to retaliate against Dr. Couch for his speech.

While Ms. Carter did indeed voice her dislike for Dr. Couch, he has produced no

evidence that her dislike was because of his advocacy for random testing policy

or because he reported Dr. Thomas to the WBM. 19 Finally and most importantly,

Dr. Couch has failed to establish that the other doctors had a motive to retaliate.

While they did vote against his random testing policy in 2002, such policy

disagreement without more is insufficient to establish a retaliatory motive. And

Dr. Couch’s insinuation that they were part of an “old boys’ club” that would

retaliate in order to protect their colleagues lacks any evidentiary support. 20

Therefore, Dr. Couch has failed to provide evidence supporting his claim that the

Committee’s ultimate action was retaliatory.

For most of the same reasons, Dr. Couch’s claim that the Credentials

Committee’s subsequent action on the disruptive conduct complaint satisfied the

fourth prong of Garcetti also must fail. After receiving Dr. Gendel’s evaluation,

19
While Dr. Couch has produced evidence that Ms. Carter disliked Dr.
Couch, that she thought he was “crazy,” and that she mentioned that Dr. Couch
had proposed a drug and alcohol testing program, Dr. Couch has not produced any
evidence that Ms. Carter disliked Dr. Couch because of his advocacy of the
testing program.
20
Additionally, insomuch as Dr. Couch asserts that other doctors would be
motivated to retaliate against him because they were substance abusers, he has
failed to present anything more than rumors or innuendos of such substance
abuse.

- 30 -
the Committee made several recommendations to the Executive Committee,

including that Dr. Couch “be placed on probation,” that he be ordered to “undergo

psychotherapeutic treatment with a psychiatrist chosen by the Credentials

Committee,” that he be required to meet with the Credentials Committee every

three to six months and present a progress report from the psychiatrist, and that

medical staff be informed of the situation and be required to report any disruptive

behavior. This recommendation did not constitute an adverse employment action

for First Amendment purposes. Under the circumstances here, where the

committee’s action was merely a recommendation for a higher committee to take

certain action, and where the higher committee conducts independent reviews of

lower committee’s actions, a reasonable person would not be deterred from

further speech. 21 Further, even if this could constitute an adverse employment

action, Dr. Couch has produced insufficient evidence of causation by the

Credentials Committee related to his protected speech for the previously

articulated reasons.

iii. Executive Committee

The Executive Committee subsequently approved, on June 2, 2004, all of

the Credentials Committee’s recommendations, including the probation and

psychiatric treatment recommendations, and on January 20, 2005, the Executive

21
Again, it is not clear that Dr. Couch ever knew of the recommendations,
and if he did not, they could not serve as a deterrent to a reasonable person.

- 31 -
Committee affirmed this disposition. While an employer’s action placing an

employee on probation and requiring continuing psychiatric treatment would

often be severe enough to constitute adverse employment action, here outside

reviewers had previously recommended these actions and Dr. Couch was able to

appeal these actions before an independent panel. 22 Cf. Somoza v. University of

Denver, 513 F.3d 1206, 1214 (10th Cir. 2008) (“[T]he fact that an employee

continues to be undeterred in his or her pursuit of a remedy, as here was the case,

may shed light as to whether the actions are sufficiently material and adverse to

be actionable.”). Thus, under the circumstances of this case, we cannot conclude

that the Executive Committee’s action would be likely to deter a reasonable

employee from speaking. In any event, even if the Committee’s action could

constitute an adverse employment action, Dr. Couch has failed to establish that

such action was retaliatory. The members that were present when the Committee

voted on its action were Drs. Chandra and Schulze, and Ms. Carter. There is no

evidence that any of these committee members were motivated to retaliate against

22
Although Dr. Couch notes that the Executive Committee’s decision stated
that he was not entitled to appeal the action, Dr. Couch did in fact eventually
effectively appeal the Committee’s action. While Dr. Couch might have initially
thought that such action was final (as Dr. Couch had notified the WBM that he
was placed on probation), this perception, even if true, was not reasonable as the
Executive Committee’s bylaws clearly indicated that it did not independently
have the authority to impose such action on Dr. Couch. Indeed, Dr. Couch did
not treat the Committee’s action as inviolate as he subsequently refused to
undergo psychotherapeutic treatment as directed by the Executive
Committee—and it was after such refusal that the hospital clarified that he had a
right to a due process hearing/appeal of the Committee’s decision.

- 32 -
Dr. Couch or that the Committee’s action was substantially motivated by

retaliation, and the rationale for the actions taken by the Executive Committee

was well established upon non-retaliation causes.

d. Billing Fraud Investigation and Corrective Action

The next major complaint that was brought to the Board involved

Dr. Couch’s charting practices and alleged billing fraud. The hospital’s

investigation on these issues followed a similar pattern to how the hospital dealt

with the disruptive conduct complaint: first, the hospital had an independent

reviewer investigate the allegations, second, the credentials committee made a

recommendation, and then the executive committee considered the matter.

An investigation of potential misconduct, as already noted, will generally

not constitute an adverse employment action. Here, the hospital has a legitimate

interest in assuring its physicians accurately billed their services (indeed at least

two patients complained about Dr. Couch’s bills), and the hospital’s solicitation

of an independent reviewer, MPQHF, to evaluate patient records that had mostly

been brought to the hospital’s attention because of patient complaints about

Dr. Couch’s billing practices would not deter a reasonable person from further

potential speech. In a highly regulated area like hospital billings and record

keeping, it can hardly be considered an adverse employment action that the

hospital would take steps to guarantee the accuracy and integrity of those

practices.

- 33 -
 MPQHF’s reviewers agreed with the hospital’s suspicions that Dr. Couch

might have billed for services he did not perform, and the hospital subsequently

implemented MPQHF’s recommendations, including reporting Dr. Couch’s action

to the WBM and requiring Dr. Couch to received thirty hours of training on

proper coding and charting. The reporting of Dr. Couch to the WBM and its

request that Dr. Couch enroll in training for proper coding and charting, under

these circumstances, would not deter a reasonable person from speaking or a

protected topic because this investigation was well grounded on reasons unrelated

to Dr. Couch’s protected speech. However, even if these requirements could

constitute adverse employment action, the fact that the hospital’s action merely

implemented recommendations of an independent outside reviewer undermines

any inference that the action was motived by retaliation. See Deschenie v. Bd. of

Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271, 1278 (10th Cir. 2007)

(“An inference of retaliatory motive may be undermined by . . . evidence of

intervening events.” (quotations omitted)).

Likewise, for much the same reasons, when the Credentials Committee

determined that Dr. Couch’s attendance in a practice management course did not

fulfill the proper course training requirements, and forwarded the matter to the

Executive Committee, Dr. Couch failed to establish that the Executive

Committee’s actions — suspending Dr. Couch from call rotation for unassigned

patients until he attended the proper thirty hours of training requirements —

- 34 -
constituted an adverse employment action or that this decision was motivated by

retaliation.

e. Patient Mistreatment Investigation and Corrective Action

The final general issue that ultimately was considered by the Board

involved Dr. Couch’s alleged mistreatment of several patients. The Medical Staff

PA&I Committee, after reviewing medical records for several patients, and

specifically the medical records of patient Corrine Klewin, requested Dr. Couch

to attend continuing medical education training. Dr. Couch was already required

to take continuing medical education classes in order to maintain his license to

practice medicine, 23 and the PA&I Committee’s specification of a particular class

as a result of its review of Dr. Couch’s treatment did not constitute an adverse

employment action. Especially in light of the fact that Dr. Couch has admitted

that it was appropriate for the hospital to look into his care and treatment of these

patients. Again, even if we were to conclude that the action was of sufficient

severity to invoke First Amendment protection, Dr. Couch failed to establish

causation. Dr. Couch failed to establish that a majority of the members of the

PA&I committee had a retaliatory motive. And the fact that an independent

review of Klewin’s death noted that Dr. Couch’s treatment of Ms. Klewin did not

23
Wyoming Board of Medicine’s Rules and Regulations, Chapter 3, Section
6(a), requires a physician to satisfactorily complete not less than sixty hours of
continuing medical education in order to renew his or her license to practice
medicine in Wyoming.

- 35 -
focus on the main cause of her death undermines any inference of retaliation. See

Deschenie, 473 F.3d at 1278. While Dr. Couch is correct that the Critical Care

Committee had previously initiated a review of Klewin’s death two years earlier,

the fact that the hospital revisited the issue two years later, without any additional

evidence, is insufficient to establish that the request for training on the cause of

death of a patient under Dr. Couch’s care was motivated by retaliation.

f. The Board’s October 23, 2006 Decision

The Board’s October 23, 2006 decision was the culmination of all of the

hospital’s prior actions discussed supra, including the charges of disruptive

conduct, charting and billing practice errors, inappropriate care and mistreatment

of several patients, and the Credential Committee’s recommendation to deny Dr.

Couch’s reappointment to the medical staff. The Board’s decision, which was

made after receiving recommendations from a three-person independent panel,

reappointed Dr. Couch to the medical staff but nonetheless mandated several

conditions for Dr. Couch’s future employment that arguably might have

constituted adverse employment action. 24 However, even here, the fact that these

24
The Board’s final decision required that (1) Dr. Couch be evaluated by a
mutually agreed-upon psychiatrist; (2) Dr. Couch to properly follow-up on any
recommendations made by the psychiatrist; (3) Dr. Couch to “make a documented
good faith effort to improve relations” with MHCC staff and doctors; (4) Dr.
Couch to attend his committee meetings; (5) Dr. Couch to “demonstrate
competence in Diabetic Ketoacidosis management”; and (6) Dr. Couch’s privilege
to continue practicing at MHCC was “conditionally granted subject to the
foregoing terms.”

- 36 -
actions all are well grounded on factors unrelated to Dr. Couch’s alleged

protected speech undercut the claim that, under these circumstances, this action

would reasonably deter protected speech.

Nonetheless, Dr. Couch has again failed to establish that his speech might

have been a substantial motivating factor for the Board’s action. The Board’s

decision was reached after retaining and reviewing the report of an independent

panel of reviewers, who heard four days of evidence. This independent, unbiased

investigation of Dr. Couch’s conduct removes any taint of bias that otherwise

could have existed. Cf. E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles,

450 F.3d 476, 485 (10th Cir. 2006) (decisionmaker’s use of an independent

investigation can remove taint from subordinate’s bias). Dr. Couch has failed to

produce evidence that the Board had an improper motive; while Dr. Couch has

produced evidence of a policy disagreement, the fact that the Board rejected Dr.

Couch’s random testing proposal almost four years prior, without more, is

insufficient evidence of bias. Dr. Couch has failed to offer that something more,

and his claims of retaliation consequently fail.

3. Garcetti’s Prong Five — Employer Would Have Taken Same Action
Against The Employee in the Absence of the Protected Speech

The Defendants also have established that alternate grounds under the fifth

prong of Garcetti that they would have taken the same actions against Dr. Couch

even in the absence of Dr. Couch’s speech. See Brammer-Hoelter, 492 F.3d at

- 37 -
1203. As already noted, the hospital’s actions followed a familiar course of

proceedings: independent outside review and then internal review,

recommendations, and corrective action to address issues documented by the

outside review. Here, the hospital responded appropriately to serious allegations

concerning interpersonal employee conflicts, billing fraud, and inadequate patient

care. The hospital’s investigations were entirely appropriate; and the hospital’s

corrective actions were reasonable and based on the recommendations of those

investigations. Therefore, the defendants have established the fifth Garcetti

prong.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment for the defendants. 25

25
The court’s business is public business and, therefore, we DENY the
parties’ motions to seal both the record on appeal and their briefs.

- 38 -
08-8001 - Couch v. Board of Trustees

HARTZ, Circuit Judge, concurring:

I concur in the result and join Judge Ebel’s opinion. I write separately to

emphasize one point. The opinion does not say that requiring an employee to see

a psychiatrist or to take a 30-hour training course can never be an adverse

employment action under the Pickering/Garcetti test. Indeed, I would think that

the prospect of either requirement by an employer would generally deter people of

ordinary firmness from speaking out. In the specific context of this case,

however, those impositions on Dr. Couch were not adverse employment actions.