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