Opinion
Case No. 3:01-CV-2053-M
November 8, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Amended Motion for Summary Judgment, filed July 18, 2002, in which Defendant seeks summary dismissal of all of Plaintiffs claims, which are for defamation, tortious interference with contractual relations, and retaliation. Upon consideration of the Motions, Response, Reply, the evidence submitted by the parties, and the law applicable to the issues before the Court, the Court is of the opinion that the Defendant's Motion should be granted in part and denied in part.
FACTUAL PREDICATE
In November 1999, Plaintiff was appointed Assistant Professor of Radiation Oncology at the University of Texas Southwestern Medical Center ("UTSW"), pursuant to an annually renewable contract. Defendant David A. Pistenmaa ("Pistenmaa"), Chairman of the Department of Radiation Oncology at UTSW, recruited Plaintiff for this position. While employed with UTSW, Plaintiff interacted with staff from the Physics and Dosimetry Division of UTSW, Parkland Health Hospital System ("Parkland"), and St. Paul University Hospital ("St. Paul"). On May 8, 2001, following a series of verbal and written reprimands directed to Plaintiff, Pistenmaa placed Plaintiff on administrative leave, with pay, for the balance of the 2000-2001 contractual term. Pistenmaa also informed Plaintiff of his decision to not renew Plaintiffs contract. The circumstances surrounding the non-renewal of Plaintiffs contract, and the conduct alleged to have occurred during the investigation which preceded the non-renewal decision, are the source of the dispute before the Court.
STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. "[T]he substantive law will identify which facts are material." Only disputes about those facts will preclude the granting of summary judgment. In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. If the moving party meets this initial burden, the burden then shifts to the nonmovant, who must produce evidence establishing a genuine issue of material fact for trial. The record before the court must be considered in the light most favorable to the opposing party. However, bare allegations in briefs and pleadings are insufficient to withstand summary judgment.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id.
Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990).
Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986).
Anderson, 477 U.S. at 248; Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985).
Alizadeh v. Safety Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).
ANALYSIS
A. DefamationTo maintain a claim for defamation under Texas law, Plaintiff must demonstrate that Pistenmaa: (1) published a statement about him; (2) that was defamatory; (3) while acting with at least negligence regarding the truth of the statement. A statement is defamatory if it tends to damage the reputation of another by subjecting him to public hatred, contempt, or ridicule. Whether a statement is reasonably capable of a defamatory meaning is a threshold question of law.
WFAA TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Associated Press v. Cook, 17 S.W.3d 447 (Tex.App.-Houston [1st Dist] 2000, no pet.).
Hansen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 92 (Tex.App.-Dallas 1995, writ denied).
Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653, 654-55 (Tex. 1987).
Pistenmaa avers that Plaintiff has no viable defamation claim because he cannot prove the elements, cannot overcome Pistenmaa's entitlement to qualified privilege and official immunity, and is barred from recovery on several of the alleged defamatory statements by the statute of limitations. The Court finds that Plaintiff has failed to produce sufficient evidence to support a defamation claim and, therefore, does not reach the qualified privilege, official immunity, or limitations defenses.
Plaintiff bases his defamation claim on several sets of facts. First, Plaintiff contends Pistenmaa told Dr. Glatstein, of the Radiation Oncology Department at the University of Pennsylvania, that at UTSW Plaintiff had unfavorable interactions with staff. Although Plaintiff offers evidence that Pistenmaa spoke to Dr. Glatstein about the subject, Plaintiff proffers no evidence to dispute the point that Pistenmaa had received negative reports about Plaintiffs unfavorable working relations with UTSW staff. It is undisputed that several staff members made oral and written complaints to Pistenmaa regarding their interrelations with Plaintiff. Even Joe Hicks, a former senior radiation therapist at Parkland who was supportive of Plaintiff during his employment at UTSW, avers in his Affidavit that Plaintiffs "aggressive style of patient care added stress to the Physics staff, nursing staff, and other support staff in an already overworked system." As the Texas Supreme Court has made clear, "fault is a constitutional prerequisite for defamation liability." Private plaintiffs must prove that the defendant was at least negligent as to the falsity of the statements made. With respect to Pistenmaa's alleged statements to Dr. Glatstein, Plaintiff has failed to produce any evidence on this element of his defamation claim, and summary judgement against him must, therefore, be granted.
Pl.'s App. at 164.
WFAA-TV, Inc., 978 S.W.2d at 571.
See Id.; Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex. 1976).
Plaintiffs second claim of defamation is that Pistenmaa conveyed to others outside UTSW that Plaintiff was untrustworthy. Plaintiff offers only his own deposition testimony as support for this contention. Plaintiff states that Pistenmaa must have spoken with faculty across the country "just based on the fact that [he] ha[d] gotten no . . . permanent job position." Plaintiff states this claim is "based on information [he] received at national meetings." and on his suspicion that Pistenmaa spoke to Dr. Glatstein and Dr. Earle. Additionally, Plaintiff claims that Dr. Rosenthal, who Plaintiff states previously worked at UTSW, told Plaintiff that Pistenmaa had "discredited him to Dr. Glatstein." Plaintiff also concludes that Pistenmaa must have also spoken to Dr. Earle at the University of California at Davis, "who is reportedly a close friend of Dr. Pistenmaa's."
Pl.'s App. at 39.
Id.
Id.
Pl.'s App. at 39.
It is axiomatic that a plaintiffs conclusory allegations, unsupported speculation, unsubstantiated assertions, and evidence based entirely on inadmissible hearsay will not defeat summary judgment. That Plaintiffs contention is unsupported by admissible evidence is underscored by his deposition testimony, in which he responded to a question probing the content of Pistenmaa's alleged statements to Dr. Earle by acknowledging that he "could only speculate." As a matter of law, because Plaintiff has produced no admissible evidence that Pistenmaa made the alleged defamatory statements, this claim is legally unsupportable.
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) ("[n]eedless to say, unsubstantiated assertions are not competent summary judgment evidence."); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992); Webster v. Bass Enterprises Production Co., 192 F. Supp.2d 684, 691 (N.D. Tex. 2002) (Lynn, J.) (striking portions of Plaintiffs Affidavit as conclusory and containing inadmissible hearsay); Satis Vacuum Ind. Vertriebs, A.G. v. Optovision Tech., Inc., No. 99-2147, 2001 WL 1142803, *1 (ND. Tex. Sept. 24, 2001) (Lynn, J.) (conclusory statements do not satisfy summary judgment burden). On this point, the Court notes that Pistenmaa seeks to strike Plaintiffs Affidavit in full because Plaintiff "has not attached one single document to support the hundreds of purported assertions of fact contained in his thirty-one (31) page single-spaced [A]ffidavit." Def.'s Reply at 3. Fed.R.Civ.P. Rule 56(e) states:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
The Fifth Circuit has held that when an affidavit contains both admissible and inadmissible statements, "[t]he court should disregard only the inadmissible portions of a challenged affidavit." Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir. 1992). Pistenmaa did not pinpoint which portions of Plaintiffs Affidavit violate this rule, but the Court will not consider those portions of Plaintiffs Affidavit which violate Rule 56(e). The Court also notes that in his Response to Defendant's Motion for Summary Judgment, Plaintiff objects to Pistenmaa's summary judgment evidence as violative of the Local Rules of the Northern District of Texas. By Order dated July 18, 2002, the Court granted Pistenmaa leave to amend his Motion for Summary Judgment to comply with the local rules and allowed Plaintiff leave to file an additional five-page response to Pistenmaa's Amended Motion. Both filings were made. Plaintiffs objections to Defendant's summary judgment evidence as violative of the Local Rules is thus moot.
Pl.'s App. at 39.
See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974).
Finally, Plaintiff alludes to other possible defamatory conduct by Pistenmaa:
Pistenmaa . . . began a campaign of slander and libel including the placement into [Plaintiff's] personnel file of falsified documents which defamed [Plaintiff] . . . Pistenmaa's statements and the falsified written documents placed in [Plaintiffs] file as well as similar statements to numerous others that disparaged [Plaintiffs] competency and professionalism constitute libel and slander because they tended to injure [Plaintiff s] reputation and expose him to public hatred, contempt, ridicule, financial injury, and impeached his honesty and integrity within his academic and professional discipline.
Pl.'s Pet. at 2-3.
In his Response, Plaintiff elaborates on this general allegation of defamation: "[Pistenmaa] made a concerted effort to seek out false information to place in Plaintiffs file which is available to anyone inquiring into Plaintiffs tenure at UTSW." In his Affidavit, Plaintiff asserts that, after he filed a formal grievance, "it was revealed to [him] that [his] personnel file had been stacked with countless accusatory documents . . . [that] misrepresented events described within them or included events that never occurred." The record contains several memoranda and reports that were allegedly placed in Plaintiffs personnel file.
Pl.'s Resp. at 5.
Pl.'s App. at 18. The Court considers this portion of Plaintiffs Affidavit compliant with Rule 56(e). Although the documents to which Plaintiff refers were not attached to the Affidavit, many such documents were attached to portions of Pistenmaa's Deposition which were included in Plaintiffs Appendix. Pla. App. at 70-100.
As stated by the Fifth Circuit, "[t]he party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim." The only statement in the personnel file that Plaintiff pinpoints is Pistenmaa's documentation of a forty-five minute delay in one of Plaintiffs procedures. However, Plaintiff contends that Pistenmaa "knew the delay was unavoidable based on [Plaintiffs] schedule [on] September 11, 2000." Plaintiff admits that Pistenmaa conducted an investigation of the circumstances surrounding the delay before memorializing it in the file. There is no evidence that Pistenmaa's documentation was defamatory or that Pistenmaa was at least negligent as to the truth of the statements contained in it.
Ragas, 136 F.3d 455, 458 (5th Cir. 1998); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment."), cert. denied, 506 U.S. 832 (1992); Copsey v. Swearingen, 36 F.3d 1347 n. 9 (5th Cir. 1994) (the district court had no obligation to consider evidence that the non-movant did not bring forth in opposition to the summary judgment motions). See also Barrow v. Greenville Indep. Sch. Dist., No. 00-1913, 2002 WL 628665 (N.D. Tex. April 18, 2002) (Fitzwater, J.) ("`Rule 56, therefore, saddles the non-movant with the duty to `designate' the specific facts in the record that create genuine issues precluding summary judgment, and does not impose upon the district court a duty to survey the entire record in search of evidence to support a non-movant's opposition.'") (quoting Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)).
Pl.'s App. at 10. The Court rejects this portion of Plaintiffs Affidavit. Plaintiff fails to attach any documentation regarding his schedule on September 11, 2000 and fails to demonstrate personal knowledge of Pistenmaa's awareness of Plaintiffs schedule that day. See FED. R. Civ. P. 56(e).
In short, Plaintiff has not produced sufficient evidence to defeat Defendant's Motion for Summary Judgment on Plaintiffs claim for defamation.
B. Tortious Interference with Contractual Relations
To prevail on a claim for tortious interference with contractual relations, Plaintiff must show that: (1) a binding contract existed between Plaintiff and UTSW; (2) Pistenmaa acted willfully and intentionally to interfere with that contract; (3) the intentional act(s) of Pistenmaa proximately caused harm to Plaintiff; and (4) Plaintiff suffered actual damages or loss as a result of those act(s).
Browning-Ferris Inc. V. Reyna, 865 S.W.2d 925, 926 (Tex. 1993).
Pistenmaa contends that Plaintiff cannot establish the necessary elements of his tortious interference with contractual relations claim because such a claim requires interference by a person not a party to the subject contract, and since Pistenmaa was acting as an agent of UTSW, there can be no interference as a matter of law.
Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995) (plaintiff cannot recover without proof that the agent acted in its own interest, at the expense of the principal).
In response to this general rule of law, Plaintiff cites two Texas Supreme Court cases which stand for the proposition that, in order to prove tortious interference in such a situation, the plaintiff must show that the agent willfully or intentionally acted to advance his own interest at the principal's expense. Here, the evidence before the Court in no way demonstrates that Pistenmaa was acting to advance his own interests at the expense of UTSW.
See Morgan Stanley Co. v. Texas Oil Co., 958 S.W.2d 178, 179 (Tex. 1997); Holloway, 898 S.W.2d at 796. See also Prudential Ins. Co. of America, 29 S.W.3d 74, 79 (Tex. 2000).
In Morgan Stanley Company v. Texas Oil Company, Tenneco hired Morgan Stanley as its agent in connection with the sale of its wholly-owned subsidiary. Texas Oil Company made an offer to buy the subsidiary and sued Morgan Stanley after Tenneco rejected that offer. Texas Oil Company claimed that Morgan Stanley failed to communicate its offer and self-interestedly encouraged Tenneco to make concessions to the successful bidder. The court of appeals reversed the trial court's grant of summary judgment in favor of Morgan Stanley, finding that fact issues existed due to the contention of self interest. The Texas Supreme Court reversed and rendered judgment in favor of Morgan Stanley, noting the absence of objective evidence that Morgan Stanley, as the agent, was acting contrary to its principal's best interests, especially absent any complaint from the principal regarding the agent's actions.
958 S.W.2d 178 (Tex. 1997).
Id. at 182.
Id.
As in Morgan Stanley, Plaintiff has failed to produce any evidence that Pistenmaa was "clearly acting based on his personal motivations when he orchestrated the non-renewal of Plaintiffs contract." In fact, the evidence before the Court suggests only the contrary. Pistenmaa received numerous complaints from the staff at UTSW, Parkland, and St. Paul regarding Plaintiffs attitude and behavior. Pistenmaa privately counseled Plaintiff, transferred Plaintiff to full-time duties at St. Paul, and granted Plaintiff pay while he was on administrative leave. Additionally, although Pistenmaa received approval from Dr. Robert J. Alpern, Dean of the University of Texas Southwestern Medical School, of his preliminary decision not to reappoint Plaintiff for the 2000-2001 year, he also discussed the matter with two members of the Department of Radiation Oncology faculty, and after doing so decided to reappoint Plaintiff for that year. This evidence belies Plaintiffs contention that Pistenmaa was motivated by his personal interests, rather than the best interests of UTSW. Further, there is no evidence that officials acting for UTSW complained of Pistenmaa's actions regarding Plaintiff
Pl.'s Resp. at 6.
Thus, Plaintiff has failed to present evidence to establish the elements of his tortious interference claim, and therefore Pistenmaa's Motion for Summary Judgment on it will be granted.
B. Retaliation
Plaintiffs final cause of action is for retaliation. Plaintiff claims that he spoke out on various issues regarding patient care during his tenure at UTSW and that his exercise of his constitutional right of free speech resulted in the non-renewal of his contract.
In Connick v. Myers, the United States Supreme Court reaffirmed the proposition that a governmental employer "cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." In order to establish his First Amendment retaliation claim, Plaintiff must demonstrate that his speech can be "fairly characterized as constituting speech on a matter of public concern." This is a question of law for the court. If the Plaintiff meets this burden, the Court must engage in the balancing test described in Pickering v. Board of Education. Plaintiff must present evidence that establishes, as a matter of law, that the employee's interest, as a citizen, in commenting upon matters of public concern outweighs "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." If the Court so finds, then it is up to the jury to resolve any remaining factual disputes as to whether the Plaintiffs protected speech was a substantial or motivating factor in the adverse employment decision, or whether the employer would have made the same employment decision in the absence of protected speech.
461 U.S. 138 (1983).
Id. at 142 (citing Keyishan v. Bd. of Regents, 385 U.S. 589, 605-606 (1967)).
Id. at 146.
Id.
391 U.S. 563 (1968).
Id. at 568.
See Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir. 2001).
Pistenmaa maintains that Plaintiffs claim of First Amendment retaliation cannot survive summary dismissal on several grounds. First, Pistenmaa contends that Plaintiff did not engage in protected speech. Second, Pistenmaa argues that, even if Plaintiffs speech was protected, such protected speech was not a substantial or motivating factor in any adverse employment action taken against Plaintiff, because Pistenmaa would have taken the same actions with respect to Plaintiff even in the absence of such protected speech. Finally, Pistenmaa asserts that Plaintiff cannot overcome the affirmative defense of qualified immunity.
The Court must first decide whether Plaintiff has demonstrated that he engaged in speech protected by the First Amendment. To fall under the umbrella of "constitutionally protected speech," the speech must involve a matter of public concern. Such a determination is made by considering the "content, form, and context of a given statement, as revealed by the whole record." When a public employee speaks only on personal matters, rather than on a matter of public concern, "absent the most unusual circumstances, a federal court is not the most appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."
Id. at 146.
Id. at 147-48.
Id. at 147.
Pistenmaa asks the Court to find, as a matter of law, that Plaintiff did not engage in protected speech. However, Plaintiff contends that he:
made complaints regarding patient care such as that seriously-ill indigent patients were not being treated equally to insured patients who were treated faster and better, and he complained about problems with dangerous equipment and antiquated procedures within the Physics Department, that patients often were delayed in commencing their treatment, that patients were not seeing a radiation oncologist with necessary frequency so that the clinic could close by five o'clock p.m., and that treatments were inaccurate.
Pl.'s Resp. at 8.
This contention is supported by deposition testimony and Affidavits of several of Plaintiffs co-workers. In response, Defendant maintains that Plaintiff spoke only privately to his employer and co-workers about matters of personal concern, and that such communications were made in Plaintiffs capacity as an employee, rather than as a citizen. However, the Fifth Circuit has held that a public employee does not "forfeit [his] right to speak by choosing an internal forum." Furthermore, "`[p]ublic employees by virtue of their public employment may make valuable contributions to public debate' . . . [and the] nature of their employment does not exclude the possibility that an issue of private concern to the employee may also be an issue of concern to the public." In some instances, Plaintiffs speech may have related to his personal concerns as an employee. On the other hand, there is evidence that Plaintiff spoke out on patient care issues at outside venues such as medical conferences. Viewing the evidence in the light most favorable to Plaintiff, the Court cannot agree with the Defendant that no evidence of protected speech exists.
Wilson v. U.T. Health Center, 973 F.2d 1263, 1270 (5th Cir. 1992).
Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001) (quoting Gonzalez v. Benavides, 774 F.2d 1295, 1299 (5th Cir. 1985).
The next issue in the Court's inquiry — whether the Plaintiffs interest in engaging in protected speech outweighed Pistenmaa's interests, as the representative of the employer, in efficiency — was not fully developed in his Motion. Thus, the Court reserves for the context of trial, the legal questions of whether Plaintiff engaged in protected speech and whether his right to do so without termination survives Pickering's balancing test.
The remaining factual issues are for the jury to resolve unless no evidence exists that creates a genuine dispute of material fact. As to causation, Pistenmaa maintains that there is no evidence that Plaintiffs exercise of his First Amendment right led to Pistenmaa's decision to suspend him and not to renew his contract. Pistenmaa points to substantial evidence suggesting that other factors motivated his decisions. The record contains numerous apparently contemporaneous notes of Pistenmaa's conversations with staff about Plaintiff and Pistenmaa's memoranda to Plaintiff regarding deficiencies in Plaintiffs performance, all suggesting that Plaintiff had difficulty working with staff and following general procedures and policies. Affidavits from several nurses, medical assistants, and faculty members at UTSW recount Plaintiffs inability to get along with staff members, his unprofessional behavior, his aggressive and abrasive attitude, and his unwillingness to accept authority. For example, Karen Chang, an Associate Professor in UTSW's Department of Radiation Oncology, stated that "[i]t was not unusual for [Plaintiff] to demonstrate his lack of respect for me and other members of the Rad-Onc Service staff by shouting and demeaning us in front of other staff members and patients. I reported instances of tardiness and [Plaintiffs] abusive behavior to my supervisor, Ken Gall, Ph.D." Additionally, one medical assistant explained the difficulty created by Plaintiffs non-compliance with scheduling procedures:
Def.'s App. at 487.
Although the Rad-Onc Service staff scheduled [Plaintiffs] appointments, [Plaintiff] told his patients to stop by any time, even when they did not have an appointment. His patients would do so and the presence of unscheduled patients would throw the entire Rad-Onc Service into chaos. Often [Plaintiff] would have patients in three of the four examination rooms at one time. This caused the five other physicians and their patients to have to wait even though they had scheduled appointments.
Def.'s App. at 469.
The Court recognizes that Pistenmaa may have had a variety of reasons for taking action against Plaintiff. However, the evidence suggests that there is a genuine dispute as to what motivated Pistenmaa's actions. There is substantial evidence in the record suggesting that Plaintiffs negative interactions with his co-workers was a source of friction and disruption. However, it is impossible to resolve as a matter of law whether Plaintiffs speech caused this friction and/or otherwise motivated Pistenmaa's decisions, or whether Pistenmaa's decisions were motivated by the disruption and tension Plaintiff caused, without regard to Plaintiffs exercise of his First Amendment right. The following excerpt from the deposition testimony of Joe Hicks, a former senior radiation therapist at Parkland, reveals the fact question presented:
[R]adiation and oncology is a referral department. . . And being a referral department really means that we're there to satisfy typically the medical oncologists and the surgical oncologist referrals . . Parkland radiation oncology is pretty strange in that you have . . . all these . . . very well-to-do people being referred to Parkland, and we're treating some of the poorest patients in all of Dallas, Parkland being a county hospital. And when it came to, you know, patients being treated, there was . . . no bones made about it: ["]Hey, this is [the patient of] a very well-known, well-respected physician, and if this [patient] . . . is to be treated, then . . . lets cut through all of the red tape . . . and get this patient treated.["] And if it's a Parkland patient, then it's a . . . double standard. . . [O]ne of the things I liked most about [Plaintiff] is that he went to bat for these patients instead of sitting back like a good junior [physician] and keeping quiet and doing what he's told . . . [Plaintiff] was a troublemaker. . . he rocked the boat.
Pl.'s App. at 149-54.
Similar accounts appear in Affidavits of several of Plaintiffs co-workers. Ruby Byers, a former radiation and oncology therapist at UTSW, states that:
[Plaintiff] would speak out whenever he believed his patients were not being given proper care. For instance, I can recall several occasions when patients would be ready and waiting for radiation treatment and the Physics personnel would be unprepared. . . Rather than allowing a patient to miss a needed treatment and/or allowing the patient to wait "on the table" [Plaintiff] would always inquire as to what the delay was and how it could be remedied. Parkland hospital provides services to indigent patients. It was my observation that the indigent patients were not given the same priority as paying patients. . . I witnessed non-paying patients, already scheduled for a treatment, removed from the schedule so that paying patients might be given their time-slot. These scheduling preferences were given to paying patients, regardless of how progressive either patients['] cancer was or how badly either patient needed treatment. . . It was my experience that [Plaintiff], consistent with his attitude to place the patient needs first, refused to go along with the Department policy of giving priority of paying patients.
Pl.'s App. at 143.
Viewing the evidence in the light most favorable to Plaintiff, the Court holds that fact issues exist as to Pistenmaa's motivation for taking adverse action against Plaintiff.
Finally, the Court concludes that it cannot grant summary judgment against the retaliation claim based on Pistenmaa's defense of qualified immunity. An analysis of qualified immunity requires a two-step approach. First, the threshold question is "whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the [official's] conduct violated a constitutional right." If the allegations could make out a constitutional violation, the second question is whether it would have been "clear to a reasonable [official] that his conduct was unlawful in the situation confronted." Thus, an official is entitled to the defense of qualified immunity "insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would be aware."
Keenan v. Tejeda, 290 F.3d 252, 261 (5th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Id.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The Court must first determine whether the allegations, viewed in the light most favorable to Plaintiff, reveal a constitutional violation. In the retaliation context, this entails a showing that Plaintiff spoke out on a matter of public concern, that Plaintiffs interest in engaging in such speech outweighed Defendant's interest as an employer, and that Defendant's adverse employment decisions were motivated by Plaintiffs speech, rather than by other factors. In deciding this threshold issue, there is no need for the Court to determine whether Plaintiff has conclusively proved his allegations. The test is whether a "constitutional right would have been violated were the allegations established."
Saucier v. Katz, 533 U.S. 194, 201 (2001).
Plaintiff has sufficiently alleged a claim of retaliation for the exercise of First Amendment rights. Defendant contends, however, that Plaintiff failed to plead his retaliation claim with particularity and that the rule requiring him to do so also places on him the burden to show why Pistenmaa would not be entitled to assert the defense of qualified immunity. This assertion is incorrect. Plaintiff is required to plead his retaliation claim with "`factual detail and particularity,' [and] not mere conclusionary allegations." However, Plaintiff is not required to plead his claim so as to avoid a qualified immunity defense. Plaintiff alleges that he spoke out on matters of public concern, namely patient care issues at UTSW; that his interest in doing so outweighed his employer's efficiency interest; and that his speech motivated Pistenmaa's adverse employment decisions, including the decision not to renew Plaintiffs contract. The Court finds that these allegations are sufficiently particular to state a constitutional claim. At the summary judgment stage, however, Plaintiff cannot rest on his pleadings. The Court must determine whether Plaintiff has produced sufficient evidence to establish a constitutional violation. As stated above, the Court holds that fact issues exist as to each element of Plaintiffs cause of action for retaliation.
Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999) (quoting Jackson v. Widnall, 99 F.3d 710, 715-16 (5th Cir. 1996) (internal citations omitted).
Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995) ("qualified immunity is a defense to be pleaded by a defendant official") (citing Siegert v. Gilley, 500 U.S. 226, 231 (1991)).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Accord, Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001).
The Court must next determine whether a reasonable official would have understood that the alleged conduct was a violation of Plaintiffs clearly established constitutional right. In Anderson v. Creighton, the Supreme Court clarified the requirement that a plaintiffs right must have been clearly established at the time of the official's conduct:
483 U.S. 635 (1987).
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Id. at 639 (internal citations omitted). Accord, McClendon v. City of Columbia, 305 F.3d 314, 332 (5th Cir. 2002).
The general rule that an employer "cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression" is well settled constitutional jurisprudence. More specific to this case, the Fifth Circuit has held that the "quality of nursing care given to any group of people, including inmates, is a matter of public concern."
Branton v. City of Dallas, 272 F.3d 730, 744 (5th Cir. 2001) (holding that this general rule has been in existence for at least thirty-four years).
Frazier v. King, 87 F.2d 820, 825 (5th Cir. 1989) (holding that a nurse's right to report violations of professional practice in a prison infirmary was clearly established at the time she was fired).
The Court holds that Plaintiffs right to speak out on such issues as the difference in the quality of medical care afforded to insured and uninsured, or paying and indigent, hospital patients was clearly established at the time Pistenmaa made employment decisions regarding Plaintiff. Thus, a reasonable official would have been aware that taking punitive actions against an employee for speaking out on such topics would be unlawful.
The Court notes that, ultimately, it is the Plaintiffs burden to show that his speech on these public matters was the cause of Pistenmaa's decisions. Plaintiff will have to prove such a causal link in spite of evidence suggesting other factors played at least a prominent role in the actions taken by Pistenmaa. However, the Court has concluded that a fact issue exists as to whether or not Plaintiffs speech motivated Pistenmaa's conduct, and it is, therefore, inappropriate for the Court to decide this issue on summary judgment. In a decision overturning a trial court's finding of qualified immunity, the Fifth Circuit recently held that while it was the plaintiffs ultimate burden to "prove that the exercise and content of her speech, rather than its time and manner, was the motivating factor in the adverse employment action she suffered," the issue turned on a "genuine dispute of material fact" and was not a proper issue for resolution by summary judgment.
Branton v. City of Dallas, 272 F.3d 730, 746 (5th Cir. 2001).
Id.
CONCLUSION
Therefore, Defendant's Amended Motion for Summary Judgment is GRANTED as to Plaintiffs causes of action for defamation and tortious interference and DENIED as to Defendant's cause of action for retaliation for the exercise of First Amendment rights.
SO ORDERED.