Opinion
5-22-CV-00818-FB-RBF
05-02-2023
SEAN BARNETT, Plaintiff, v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, SHWETA BANSAL, STEPHANIE LEVINE, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Fred Biery:
This Report and Recommendation concerns Defendants Dr. Shweta Bansal and Dr. Stephanie Levine's Motion to Dismiss. See Dkt. No. 12. All pretrial matters have been referred for resolution, pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 6. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, the Motion to Dismiss, Dkt. No. 12, should be GRANTED in its entirety, and each of the claims against Defendants should be DISMISSED WITHOUT PREJUDICE.
Factual and Procedural Background
Captain Sean Barnett filed his Original Complaint against Defendants University of Texas Health Science Center at San Antonio (“UT Health”), Dr. Shweta Bansal, and Dr. Stephanie Levine, on July 27, 2022. In the Original Complaint, Barnett asserted claims via 42 U.S.C. § 1983 for retaliation in violation of the First Amendment and for defamation under state law. Barnett later amended his complaint to drop the claims against UT Health. See Dkt. No. 10 (“Am. Compl.”). Drs. Bansal and Levine filed the present Motion to Dismiss, requesting that the Court dismiss all claims against them.
Barnett is a member of the U.S. Air Force and a medical doctor who desires to become a kidney specialist and intensive-care-unit practitioner. In 2019, following completion of his medical residency, he was accepted into a Nephrology Fellowship program at UT Health. The fellowship is intended to train participating doctors in a specific area of specialty. During his time in the fellowship, Barnett alleges, he raised multiple concerns about patient treatment to Dr. Bansal, the Nephrology Fellowship Program Director, and also to other employees of UT Health. He claims Dr. Bansal, in response, told him, “not to worry about it.” Am. Compl. ¶ 15.
In August of 2020, according to Barnett, Dr. Bansal refused without explanation to approve Barnett's research proposal. In November of 2020, Barnett brought his girlfriend to the ER at UT Health. UT Health reported to the Air Force that Barnett had been “high on drugs and aggressive towards staff,” which Barnett denies. Id. ¶ 21. Barnett claims he and his girlfriend subsequently submitted a complaint to the patient-relations department, but no action was taken. Id. ¶ 22. Later, Barnett alleges, a chief compliance officer at UT Health told another doctor that there was a report from the Epic data system indicating Barnett had attempted to improperly access his girlfriend's medical chart, in violation of HIPAA. Id. ¶ 24. This information was then passed on to Dr. Bansal, who in turn reported it to Barnett's commanding officer in the Air Force, Dr. Benjamin Morrow. Barnett claims he never attempted to access the files and that UT Health made no attempt to verify the allegation before reporting it to the Air Force. Barnett asserts that the compliance officer later told him the report was based on a mistake in the Epic recording system and that he should not pursue the matter. Barnett requested a letter of apology related to this incident, but nothing happened. These events transpired sometime during or before January of 2021.
About two weeks after the compliance officer informed Barnett of the mistaken report, a clinical trial Barnett was involved in was stopped. And at around that same time, a different clinical trial Barnett had started was also shut down and not allowed to resume for a period of three months. In May of 2021, Barnett informed two supervisors of two incidents of what he believed were examples of dangerously inadequate patient care. He also attempted to file a safety report, but he was allegedly told only attending physicians could file reports. Later, Barnett applied for a research grant, which he alleges was then blocked by UT Health. Barnett raised additional complaints about patient care in November of 2021 and January of 2022. He was then placed on administrative status within the fellowship. Id. ¶ 41.
In February of 2022, Barnett was treating a patient and decided not to intubate the patient due to concerns about other medical issues. Another doctor determined it was necessary to intubate, and that doctor criticized Barnett's decision. On February 14, 2022, Barnett was dismissed from the fellowship. Dr. Levine, an employee of UT Health, signed the dismissal letter. The letter explained that Barnett was dismissed from the program because he had failed to recognize critically ill patients, wrote orders on jointly managed patients without discussing it with others, provided care outside the scope of the program, had “negative personal interactions,” and spoke with a “disparaging attitude” towards others, among other concerns. See Am. Compl. ¶ 81, Am. Compl. Ex. A (dismissal letter). The letter was also sent to the Air Force. Am. Compl. ¶ 88.
Barnett alleges that Drs. Bansal and Levine retaliated against him due to his exercise of protected speech. He argues that the numerous complaints he made about patient care as well as the complaints he made relating to the incident with his girlfriend and the suspected HIPAA violation amount to protected speech. He claims Dr. Bansal denied him research and funding opportunities in retaliation for that speech. He alleges his ultimate dismissal from the fellowship, pursuant to the letter signed by Dr. Levine, was the culmination of this improper retaliation.
Barnett further alleges that Dr. Bansal and Dr. Levine each made defamatory statements about him to his superiors in the Air Force. Specifically, he claims Dr. Bansal told Dr. Morrow that she had “proof” Barnett violated HIPAA, that she did so without verifying whether the accusation was true, and that in fact Barnett had not violated HIPAA. Barnett alleges the letter of dismissal signed by Dr. Levine constitutes defamation because it includes false statements about his work performance in that he “did not act in the way described in the letter.” Id. ¶ 83.
Defendants filed a motion to dismiss each of the claims asserted in the Amended Complaint. They argue that the First Amendment retaliation claims under § 1983 are barred by qualified immunity, and that the Complaint otherwise fails to state a retaliation claim. Defendants assert that the defamation claim against Dr. Bansal is barred by the statute of limitations, and that the Amended Complaint fails to state a defamation claim against Levine, or alternatively that the defamation claim against Dr. Levine is barred by official immunity. On November 28, 2022, the Court stayed and administratively closed this case pending a ruling on the motion to dismiss. See Dkt. No. 21.
Analysis
Each of the claims against the Defendants should be dismissed. First, the First Amendment retaliation claims against both Dr. Levine and Dr. Bansal fail because Barnett has not met his burden to overcome their assertion of qualified immunity. Second, the defamation claim against Dr. Bansal is barred by the one-year statute of limitations. Lastly, the defamation claim against Dr. Levine fails because Barnett has failed to plead sufficient facts to support a viable claim, given that the allegedly defamatory statements are non-actionable expressions of opinion.
A. Defendants are Entitled to Qualified Immunity as to the First Amendment Retaliation Claims.
It is undisputed that Drs. Bansal and Levine are both employees of UT Health who were acting in their official capacities when they took the various alleged actions cited by Barnett. They have accordingly invoked their entitlement to qualified immunity.
When qualified immunity is asserted at the motion to dismiss stage, as is the case here, a court has an “obligation . . . to carefully scrutinize [the complaint] before subjecting public officials to the burdens of broad-reaching discovery.” Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 263-64 (5th Cir. 2019) (alterations in original) (quotations omitted). The burden rests with the plaintiff to show qualified immunity does not apply. Waltman v. Payne, 535 F.3d 342, 346 (5th Cir. 2008). The Court must determine whether plaintiff's pleading “assert[s] facts which, if true, would overcome the defense of qualified immunity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (quotation omitted); Carswell v. Camp, 54 F.4th 307, 311 (5th Cir. 2022), pet. for cert. docketed, No. 22-959 (U.S. April 3, 2023) (same). To overcome an assertion of qualified immunity, a plaintiff must show “‘(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.'” Kelson v. Clark, 1 F.4th 411, 416 (5th Cir. 2021) (quotation omitted). A Court may take up the two required elements-whether a right was violated and whether that right was “clearly established”-in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Barnett has not met his burden of showing that the First Amendment right allegedly violated was “clearly established.” In his response to the motion to dismiss and corresponding assertion of qualified immunity, Barnett urges generally that “[t]he right to be free from retaliation when exercising First Amendment speech rights is a ‘well-established' right.” Dkt. No. 19 ¶ 38 (“Pl. Resp.”). Based on only this assertion, Barnett contends that the only “prong” of the qualified immunity test “at issue is the second.” Id. In support, Barnett cites Benes v. Puckett, 602 Fed.Appx. 589, 592 (5th Cir. 2015). Barnett's effort in this regard is insufficient to carry his burden. See Kelson, 1 F.4th at 416.
First Amendment jurisprudence distinguishes between protections afforded speech in a student-school context and speech in a public employee-workplace context. Student-school speech is protected unless it “materially and substantially disrupt[s] the work and discipline of the school.” Tinker v. Des Moines Ind. Sch. Dist., 393 U.S. 503, 513 (1969). In the publicemployment context, whether speech is protected depends on whether the employee is speaking as a private citizen and about a matter of public concern. Garcetti v. Ceballos, 547 U.S. 410, 417, 419 (2006). Showing that a right is “clearly established” requires that Barnett point to controlling authority that “defines the contours of the right in question with a high degree of particularity,” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013), such that a reasonable official would be on notice that their actions violated the plaintiff's rights, see, e.g., Morgan v. Swanson, 659 F.3d 359, 412 (5th Cir. 2011). Benes, the case cited by Barnett to support the “clearly established” prong, addresses a scenario factually distinct from Barnett's, and it also specifically recognizes the need for clarity and specificity to overcome qualified immunity. The Benes court ultimately found the defendants were entitled to qualified immunity because case law did not “clearly establish” whether the plaintiff was speaking within the context of his employment or as a private citizen. 602 Fed.Appx. at 594-95.
Bennett further asserts that the student-speech doctrine should govern, and that under this doctrine his rights were violated. Barnett, however, is not the typical type of student to whom this doctrine is applied-he was functioning in a professional capacity as a medical doctor, was an active member of the military paid by the Air Force, and yet was also enrolled as a student in a public university fellowship program. At the very least, there is a lack of certainty as to which standard applies. See Oyama v. Univ. of Hawaii, 813 F.3d 850, 860 (9th Cir. 2015) (concluding neither student-speech doctrine nor public employee doctrine, “standing alone, provide[d] an adequate framework for evaluating [plaintiff's] claim” where plaintiff was enrolled in a public university's student teacher program). Indeed, it is even unclear whether the same standard should apply to all the retaliation claims or various statements at issue in the claims. The bottom line is that it is not “clearly established” that Barnett's speech, as alleged, was protected under the First Amendment or what the contours of any protection would be.
Barnett claims he did not receive the stipend of up to $69,000 offered by the program, however he does not allege he worked in the program for free or paid to attend the program. He admits he was “paid by the Air Force” but does not elaborate as to how these payments relate to his work as a doctor in the fellowship program. See Pl. Resp. at 5.
Barnett argues in the alternative that his speech was protected under the employee-speech doctrine, see Pl. Resp. at 10-11, but his argument again lacks the needed specificity. Although he asserts his complaints about patient care would be protected because they are a “matter of public concern,” id. at 11, he does not address a threshold issue under this doctrine, whether his speech was made as a private citizen or as part of his employment. See Garcetti, 547 U.S. at 419. Indeed, a court must first determine if “the employee spoke as a citizen on a matter of public concern,” and if the employee did not, “the employee has no First Amendment cause of action based on [the] employer's reaction to the speech.” Id. (citations omitted); Davis v. McKinney, 518 F.3d 304, 312-13 (5th Cir. 2008) (discussing Garcetti and concluding the “first task” was to determine whether speech was made as part of plaintiff's public duties); Harrison v. Lilly, 854 Fed.Appx. 554, 556, 558 n.1 (5th Cir. 2021) (same).
Barnett's complaints about patient care likely qualify as speech “undertaken in the course of performing one's job,” or work-related complaints brought up the proper chain of command, which would not qualify as protected speech. Davis, 518 F.3d at 313. To the extent his complaints relating to the incident with his girlfriend and the subsequent suspected HIPAA violation were made in his capacity as a private citizen, it is not clear that such speech would be protected either, because it could be viewed as relating to personal events and accusations rather than a matter of public concern. See Anderson v. Valdez, 845 F.3d 580, 593 (5th Cir. 2016) (describing matters of public concern as matters relating to “political, social, or other concern to the community”) (quotation omitted). The point, however, is that no matter how the various statements are viewed now, it wasn't clearly established that the statements were protected at the time of the alleged retaliation. See Pearson, 555 U.S. at 227 (“[P]etitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the [alleged constitutional violation] that their conduct was unconstitutional.”). Ultimately, Barnett has failed to point to controlling authority that “defines the contours of the right in question with a high degree of particularity,” Wyatt, 718 F.3d at 503, such that a reasonable official would have been on notice that their actions violated the Barnett's rights, see Morgan, 659 F.3d at 412. Dr. Bansal and Dr. Levine are therefore entitled to qualified immunity on Barnett's First Amendment retaliation claims.
B. Barnett's Defamation Claim Against Dr. Bansal is Barred by the Statute of Limitations.
Under Texas law, a plaintiff must bring a defamation claim no later than one year after the claim accrues. Tex. Civ. Prac. & Rem. Code § 16.002(a). Accrual begins on the date the allegedly defamatory material was published. Wang v. Prudential Ins. Co. of Am., 439 Fed.Appx. 359, 366 (5th Cir. 2011) (citing Newsom v. Brod, 89 S.W.3d 732, 736 (Tex. App.-Houston [1st Dist.] 2002, no pet.). The defamation claim against Dr. Bansal is based on Bansal telling Barnett's superiors in the Air Force that there was “proof” Barnett had violated HIPAA. It is not clear from the Amended Complaint when precisely this occurred, but it could not have been any later than January of 2021, because Barnett alleges retaliation stemming from that incident occurred in January of 2021. The defamation claim therefore began to accrue at the latest on the last day of January of 2021. Barnett filed his Complaint on July 27, 2022, well outside the one-year limitations period.
Defendants pointed out in their Motion to Dismiss that the latest possible date for the alleged defamatory statement is January of 2021. Barnett did not contest this assertion in his Response.
There is no merit to Barnett's argument that the statute of limitations should be calculated as of February of 2022, when the dismissal letter signed by Dr. Levine was sent. According to Barnett, Dr. Levine's letter “republished” Dr. Bansal's allegedly defamatory statements because the letter “made references to the incidents involving Plaintiff and Bansal.” Pl. Resp. at 12. But Dr. Bansal did not sign Dr. Levine's letter and is not named in it. Moreover, the incident relating to the suspected HIPAA violation-the subject of the defamation claim-is not referenced in the letter. Accordingly, the alleged defamatory statements by Dr. Bansal were published at the latest in January of 2021, they were not republished in Dr. Levine's letter, and the defamation claim against Dr. Bansal is therefore barred by the statute of limitations.
The dismissal letter is quoted extensively in the Amended Complaint and attached thereto. It is additionally quoted in Response and attached as Exhibit C to the Response.
C. Barnett Fails to State a Defamation Claim Against Dr. Levine.
A defamation claim requires a plaintiff to show that the defendant (1) published a statement that concerned the plaintiff, (2) the statement was defamatory, and (3) the defendant acted with some degree of culpability regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.3d 568, 571 (Tex. 1998) (noting either malice or negligence standard could apply depending on the circumstances). A defamation claim is only actionable if the statement at issue is an assertion of fact, not merely an expression of opinion. Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989) (discussing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). Whether a given statement is an expression of opinion or an assertion of fact is a matter of law to be decided by the Court. Id. at 570.
The dismissal letter at issue is fundamentally an expression of Dr. Levine's opinions about Barnett's abilities as a doctor and his behavior in the fellowship program. Barnett unconvincingly argues the letter consists of statements intended to be interpreted as fact by the reader. But reading the letter belies such an assertion. The letter uses descriptive language to assert an opinion about Barnett's behavior, such as describing Barnett as “defensive” when corrected, or as having a “disparaging attitude.” Pl. Resp. Ex. C. Other parts of the letter consist of Dr. Levine's assessment of Barnett's abilities as a doctor and overall performance in the fellowship program, such as her assessment of Barnett's “concerning lack of recognition of critically ill patients” and his providing care outside the scope of the program. Id. While some of these opinions were surely formed based on factual events, the assertions in the letter represent Dr. Levine's subjective, professional assessment of Barnett's abilities and conduct. Courts are rightly wary to cast these types of professional opinions as “fact,” recognizing that supervisors must be free to make subjective assessments without fear of liability. See, e.g., Sayibu v. Univ. of Texas Sw. Med. Ctr. at Dallas, No. 3:09-CV-1244-B, 2010 WL 5139494, at *3 (N.D. Tex. Dec. 17, 2010) (finding dismissal letter in medical residency context was subjective opinion about plaintiff's abilities); Baldwin v. Univ. of Texas Med. Branch at Galveston, 945 F.Supp. 1022, 1035 (S.D. Tex. 1996), aff'd, 122 F.3d 1066 (5th Cir. 1997) (finding quarterly performance reviews in medical residency context were subjective opinions about plaintiff's performance).
Because dismissal is warranted on the grounds discussed herein, the Court need not address the issue of official immunity.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that the Motion to Dismiss, Dkt. No. 12, be GRANTED. Accordingly, each of the claims against each of of the remaining defendants should be DISMISSED WITHOUT PREJUDICE.
Having considered and acted upon all matters for which the above-entitled and numbered case was referred, it is ORDERED that the above-entitled and numbered case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.