Cunningham v. Blackwell
| Citation | 568 F.Supp.3d 799 |
| Decision Date | 21 October 2021 |
| Docket Number | Civil No. 3:20-cv-00008-GFVT-EBA |
| Parties | Dr. Larry CUNNINGHAM, Plaintiff, v. BLACKWELL, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Bethany Nicole Baxter, Joe F. Childers, Joe F. Childers & Associates, Lexington, KY, for Plaintiff.
Bryan Howard Beauman, Donald C. Morgan, Sturgill, Turner, Barker & Moloney PLLC, William Eugene Thro, University of Kentucky Office of Legal Counsel, Lexington, KY, for Defendants David W. Blackwell, Dr. Larry Holloway, University of Kentucky.
Barbara A. Kriz, Kriz, Jenkins, Prewitt & Jones, PSC, Lexington, KY, for Defendant Stephanos Kyrkanides.
Bryan Howard Beauman, Donald C. Morgan, Sturgill, Turner, Barker & Moloney PLLC, Lexington, KY, for Defendant William Thro.
Gregory F. Van Tatenhove, United States District Judge This matter is before the Court upon cross-motions for summary judgment filed by Plaintiff Dr. Larry Cunningham and Defendants University of Kentucky, Provost David W. Blackwell, Dr. Larry Holloway, and General Counsel William E. Thro. [R. 63; R. 92.] In January 2019, Dr. Larry Cunningham, an employee of the University of Kentucky College of Dentistry, was accused of health care fraud and forbidden from engaging in clinical activities. [R. 63-4 at 21-26.] In response, Dr. Cunningham filed suit against multiple defendants including the University of Kentucky, Provost David W. Blackwell, Dr. Larry Holloway, and General Counsel William Thro. [R. 1.] In his Complaint, Dr. Cunningham alleges First Amendment retaliation, violations of his procedural and substantive due process rights, breach of contract, violations of Kentucky Wage and Hour law, violations of Kentucky's Whistleblower Act, and defamation, libel, and slander. Id. Dr. Cunningham now moves for summary judgment against Provost Blackwell for his procedural due process claim, against the University for his breach of contract claim, and against the University and Provost Blackwell1 for his wage and hour claim. [R. 63-4.] In response, the University, Provost Blackwell, Dr. Holloway, and General Counsel Thro move for summary judgment against Dr. Cunningham for all claims filed against them. [R. 92.]
Further relevant to this matter is a companion case, Shehata v. Blackwell, et al. , 3:20-cv-00012-GFVT. In that matter, Dr. Ehab Shehata, a former colleague of Dr. Cunningham who was also accused of having committed health care fraud, brings similar claims. The Court notes this companion case because the matters are closely intertwined and require frequent reference to one another. Specific to this matter, however, the Court, having reviewed the record, and for the reasons set forth herein, will GRANT IN PART and DENY IN PART both Motions [R. 63; R. 92.]
Dr. Larry Cunningham was employed at the University of Kentucky's College of Dentistry as medical doctor and licensed oral surgeon from 2001 to July, 2019. [R. 63-4.] In 2018, the UK Healthcare Corporate Compliance office began an investigation of Dr. Cunningham regarding a "documentation concern," which was later concluded without disciplinary action. [R. 63-4 at 12.] In January 2019, however, William Blackwell, the Provost of the University of Kentucky, informed Dr. Cunningham that he was being accused of fraud for "claiming credit for services which he did not perform." Id. at 21. Provost Blackwell indicated that he intended to pursue termination proceedings and, when Dr. Cunningham chose not to resign, forbade him from performing any clinical services. Id. As a result of this action, Dr. Cunningham was not allowed to treat patients in the faculty clinic, perform surgery at UK Chandler Hospital, oversee residents’ and interns’ patient care, teach clinical courses, or work at the Veterans’ Administration Hospital. See id. at 23. On May 24, Provost Blackwell issued a Statement of Charges against Dr. Cunningham, which initiated the termination process. [R. 62-18 at 193; 63-4 at 26.] Dr. Cunningham then resigned on June 7. [R. 63-4 at 29.] On January 1, 2020, Dr. Cunningham filed a Complaint alleging violations of his procedural and substantive due process rights, First Amendment retaliation, breach of contract, violations of Kentucky wage and hour law, violations of Kentucky's Whistleblower Act, and defamation. [R. 1-2.] The action was removed to federal court on January 27. Now, cross-motions for summary judgment are pending and ripe for review.
The Court first turns to Plaintiff Dr. Cunningham's Motion for Summary Judgment [R. 63-2.] In his Motion, Dr. Cunningham seeks summary judgment against Provost Blackwell for his procedural due process claim, against the University for his breach of contract claim, and against the University and Provost Blackwell in his individual capacity2 for his wage and hour claim.3 [R. 63-2; 63-4.] Summary judgment is appropriate when the pleadings, discovery materials, and other documents in the record show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A genuine dispute exists on a material fact, and thus summary judgment is improper, if the evidence shows ‘that a reasonable jury could return a verdict for the nonmoving party.’ " Olinger v. Corp. of the Pres. of the Church , 521 F. Supp. 2d 577, 582 (E.D. Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The moving party has the initial burden of demonstrating the basis for its motion and identifying those parts of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co., Inc. , 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its burden by showing "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548. Once the movant has satisfied this burden, the non-moving party must go beyond the pleadings and come forward with specific facts demonstrating there is a genuine issue in dispute. Hall Holding , 285 F.3d at 424 (citing Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).
The Court must then determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Booker v. Brown & Williamson Tobacco Co. , 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson , 477 U.S. at 251-52, 106 S.Ct. 2505 ). In doing so, the Court must review the facts and draw all reasonable inferences in favor of the non-moving party. Logan v. Denny's, Inc. , 259 F.3d 558, 566 (6th Cir. 2001). Summary judgment is inappropriate where there is a genuine conflict "in the evidence, with affirmative support on both sides, and where the question is which witness to believe." Dawson v. Dorman , 528 F. App'x 450, 452 (6th Cir. 2013).
Dr. Cunningham first seeks summary judgment against Provost Blackwell regarding his procedural due process claim. [R. 63-4 at 30-35.] In his motion, Dr. Cunningham alleges that Provost Blackwell deprived him of his property interest in performing clinical duties without due process. See id. In opposition, Defendants seek summary judgment in their favor, arguing Dr. Cunningham did not have a protected property interest in his clinical duties or his employment, and that regardless, Dr. Cunningham was afforded adequate process.4 [R. 92 at 24-32.]
The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that "No State shall deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. The procedural component of the Due Process Clause protects rights created by state law and guarantees that no significant deprivation of life, liberty or property will take place until notice has been provided and the individual has a meaningful opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). In Kentucky Department of Corrections v. Thompson , 490 U.S. 454, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989), the United States Supreme Court stated:
We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, Board of Regents of State Colleges v. Roth , 408 U.S. 564, 571, 92 S. Ct. 2701, 2706, 33 L.Ed.2d 548 (1972) ; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient, Hewitt v. Helms , 459 U.S. at 472, 103 S.Ct. at 871, 74 L. Ed. 2d 675. The types of interests that constitute "liberty" and "property" for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than "an abstract need or desire," Board of Regents v. Roth , 408 U.S. at 577, 92 S. Ct. at 2709, and must be based on more than "a unilateral hope," Connecticut Board of Pardons v. Dumschat , 452 U.S. 458, 465, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981). Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it.
Thompson , 490 U.S. at 460, 109 S.Ct. 1904.
Under step one, the Court must determine whether Dr. Cunningham held any property interests implicating procedural due process rights.5 [R. 63-4 at 30-32.] First, the Court will determine whether Dr. Cunningham held a property interest in his clinical duties, privileges, and attendant Dental Services Plan (DSP) income. Dr. Cunningham was a part of the College of Dentistry's DSP, which provided compensation in addition to his base salary for performing clinical services. Id. at 1-2. If a faculty member is listed as the Treating Provider for a clinical service, they receive forty to sixty percent of the payment collected for the service...
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