Cunningham v. Blackwell
| Citation | 41 F.4th 530 |
| Decision Date | 18 July 2022 |
| Docket Number | s. 21-6005/6174,s. 21-6006/6172 |
| Parties | Dr. Larry CUNNINGHAM, Plaintiff-Appellee (21-6005), Plaintiff-Appellant (21-6174), v. David W. BLACKWELL, Larry Holloway, and William Eugene Thro, individually, Defendants-Appellants (21-6005), Defendants-Appellees (21-6174). Dr. Ehab Shehata, Plaintiff-Appellee (21-6006), Plaintiff-Appellant (21-6172), v. David W. Blackwell, Larry Holloway, and William Eugene Thro, individually, Defendants-Appellants (21-6006), Defendants-Appellees (21-6172). |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: Joe F. Childers, CHILDERS & BAXTER, PLLC, Lexington, Kentucky, for Plaintiffs. Bryan H. Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, for Defendants. ON BRIEF: Joe F. Childers, CHILDERS & BAXTER, PLLC, Lexington, Kentucky, for Plaintiffs. Bryan H. Beauman, Donald C. Morgan, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, William E. Thro, UNIVERSITY OF KENTUCKY, Lexington, Kentucky, for Defendants. Ronald G. London, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, Washington, D.C., for Amicus Curiae in 21-6172.
Before: SUTTON, Chief Judge; BATCHELDER and DONALD, Circuit Judges.
SUTTON, C.J., delivered the opinion of the court in which BATCHELDER, J., joined, and DONALD, J., joined in part. DONALD, J. (pp. 544-47), delivered a separate opinion concurring in all but Parts III.A.1. and III.B.2. of the majority opinion.
The University of Kentucky investigated two dentistry professors for entering false data about whether they, or their students, had performed services for patients at a university clinic and whether they, or the clinic, should be paid for those services. While the investigation proceeded, the provost barred the professors from seeing patients in the clinic but allowed them to perform their other duties. After the investigation ended, both professors left the University. The professors sued, alleging the University violated their rights to due process under the Fourteenth Amendment and retaliated against them in violation of their rights to free speech under the First Amendment. Because the administrators did not violate clearly established law, qualified immunity protects them from each claim.
Doctor Larry Cunningham and Doctor Ehab Shehata worked at the University of Kentucky's College of Dentistry. Cunningham began teaching at the College in 2001, and he had tenure. Shehata began teaching at the College in 2013, and he did not have tenure. Both professors worked at the College's clinic for oral and maxillofacial surgery.
On top of their salaries as professors, Cunningham and Shehata received pay for their clinical work. If one of them cared for a patient, the clinic designated him as the treating provider, and he would receive 40% of the collectible income. If a dental resident or hygienist provided care, he or she was the treating provider. In that case, the College kept all of the money. In 2018, Cunningham received roughly $176,100 in salary and $203,900 for clinical work. That same year, Shehata earned roughly $132,000 in salary and $199,400 in clinical income.
In 2017, Stephanos Kyrkanides, the Dean of the College, changed how the billing office determined who served as the treating provider. The new system labeled the author of the patient notes in the medical records as the treating provider. This created a problem for Cunningham and Shehata, who regularly allowed student residents to draft the notes. Without seeking permission from the administration, they circumvented the new system by copying patient notes that the residents drafted, pasted them under their own names, and deleted the original records. That way, the system would show that Cunningham or Shehata served as the treating provider, and they would receive their 40% share. Cunningham used this workaround 24 times, Shehata 110 times. No other professors did this, and only a later audit of the records revealed what had happened.
In their defense, the professors say that they acted as the treating providers in each case, and merely allowed the residents to draft the notes to give them a chance to practice their documentation skills. Because the professors provided the care, they claim, any manipulation of the records did not make them inaccurate.
Right or wrong, the compliance office saw things differently. They learned of the practice in February 2018. Software logs confirmed it. Brett Short, the University's Chief Compliance Officer, grew concerned that Cunningham and Shehata manipulated the data for profit and exposed the University to potential liability by faking medical records and falsely reporting who had done the work and who should be paid for it. He told them to stop "immediately." CR.62-10 at 23. Short's office investigated and retained an accounting firm to audit the records. After the February meeting, the professors stopped copying and pasting the notes and started writing the notes themselves.
In October 2018, Short briefly met with Cunningham and Shehata to inform them he was almost done with his investigation and asked if they had any more information to provide. Short emailed each of them the next day to offer an opportunity to respond to the investigation "in writing." CR.92 - 22 at 2; SR.107-22 at 1. Neither professor responded to the substance of the allegations.
On January 16, 2019, Provost David Blackwell removed Kyrkanides, and Doctor Larry Holloway stepped in as Interim Dean.
The next day, Blackwell and Short met with Cunningham to tell him that the University would start dismissal proceedings unless he resigned. Cunningham asked if he could wait until June. Blackwell told Cunningham that he could remain there until June but that he could not see clinic patients in the interim.
Shehata's meeting followed. Blackwell asked Shehata several questions and gave him a chance to explain his position. While Blackwell entered the meeting with the expectation of firing Shehata, he hesitated after hearing Shehata's side of the story, especially after it "became apparent" to him that Shehata "may have been influenced toward the deleting, cutting, and pasting by" Cunningham. CR.62-2 at 51. Blackwell told Shehata not to work in the clinic until the investigation finished.
While the suspensions prevented the professors from earning clinic income, they still received their base salaries. Cunningham retained his other academic, research, and administrative obligations, and Shehata published research papers, met with students, and administered exams.
Within a few weeks of his meeting with Blackwell, Cunningham wrote to the University's General Counsel, William Thro, explaining why he revised the records. In March 2019, the parties met and unsuccessfully attempted to resolve the situation. Blackwell initiated dismissal proceedings against Cunningham in May. Cunningham resigned on June 7. In July, he began a new position as the chair of oral and maxillofacial surgery and associate dean of hospital affairs at the School of Dental Medicine at the University of Pittsburgh.
Shehata, meanwhile, sent a letter to Blackwell explaining his actions. In June, Shehata and Blackwell met again, along with Holloway. After the meeting, Blackwell renewed Shehata's teaching contract but continued to prevent him from doing clinical work. Holloway signed Shehata's contract on July 2, 2019.
After Shehata and the College agreed to the new contract, Thro offered to allow him to resume clinical duties if he satisfied certain terms. Foremost among the terms, Thro required that Shehata admit that he "intentionally altered patient notes which resulted in false documentation being submitted to third-party payors." SR.1-2 at 55. Shehata refused. In September 2019, Thro informed him that his employment would end nine months later on June 30, 2020. One week after leaving the University, Shehata began working as an assistant professor and predoctoral program director at the School of Dentistry at the University of Maryland at Baltimore.
Shehata and Cunningham sued the University and various administrators, including Blackwell, Holloway, and Thro. Each raised a slew of federal and state law claims, including due process claims under the Fourteenth Amendment and retaliation claims under the First and Fourteenth Amendments.
The parties filed cross-motions for summary judgment. The district court, as an initial matter, allowed the professors’ state law claims for breach of contract and wage-and-hour violations to proceed as well as a defamation claim by Cunningham against Blackwell. See Ky. Rev. Stat. §§ 45A.245, 337. Those claims are not at issue in this appeal.
The district court separately permitted the professors’ due process claims regarding the suspension of their clinical duties to proceed, finding genuine issues of material fact and denying qualified immunity to Blackwell, Holloway, and Thro. It rejected as a matter of law three other federal claims: a due process claim by Shehata about the timing of his departure, a free speech claim by Cunningham that administrators retaliated against him for giving testimony in another case against the dean, and a free speech claim by Shehata that the administrators did not renew his contract because he refused to sign the sworn statement.
Blackwell, Holloway, and Thro appeal the denial of qualified immunity on the professors’ due process claims regarding suspension of their clinical duties. The two professors cross-appeal the other three federal rulings. We have jurisdiction over each set of appeals.
Precedent settles our authority to review denials of qualified immunity. Leary v. Livingston County , 528 F.3d 438, 441–42 (6th Cir. 2008). While the professors worry about our authority to review factual disputes about the record, that problem does not arise today. The second prong of qualified immunity—clearly established law—does not implicate any such jurisdictional question. The...
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