Draghi v. County of Cook

Decision Date19 August 1999
Docket NumberNo. 98-1615,98-1615
Citation184 F.3d 689
Parties(7th Cir. 1999) Thomas Draghi, M.D., M.P.H., Plaintiff-Appellant, v. County of Cook, a unit of local government of the State of Illinois, John H. Stroger, Jr., as President and a Member of the Cook County Board, Ruth M. Rothstein, individually and as Chief of the Bureau of Health Services of Cook County, Illinois and as Director of Cook County Hospital, et al., Defendants-Appellees
CourtU.S. Court of Appeals — Seventh Circuit

Before Posner, Chief Judge, and Bauer, and Manion, Circuit Judges.

Bauer, Circuit Judge.

On April 14, 1997, Plaintiff Thomas Draghi, M.D., M.P.H., filed a nine-count amended complaint against Cook County Hospital (the "Hospital") and several other persons affiliated with the Hospital (collectively the "Defendants"), alleging violations of sec. 1983 of the Civil Rights Act, the Illinois Constitution, and state claims for breach of contract. The Defendants filed a motion for summary judgment, which the district court granted. Dr. Draghi now appeals the district court's grant of summary judgment in favor of the Defendants. We affirm.

I. Background

On July 21, 1993, the Hospital hired Dr. Draghi as a physician. As part of his employment, he was given a six-month provisional appointment as a medical staff member of the Hospital. According to the Hospital's Medical Staff Bylaws (the "Bylaws"), after six months of satisfactory performance, to be determined by the Executive Medical Staff (the "EMS"), a provisional appointee may be promoted to an attending physician.

On October 18, 1993, the acting Chairperson of the Department of Medicine for the Hospital informed Dr. Draghi that his clinical privileges were being summarily suspended. The suspension was based upon the following charges: (1) failing to comply with Hospital policy regarding ventilator adjustments; (2) placing a "do not resuscitate" order on an alert patient without discussing the order with the patient or family members; (3) inserting chest tubes without the proper credentials to perform the procedure; and (4) administering a sclerotherapy that was not indicated.

The suspension was referred to the Medical Staff's Peer Review Committee (the "PRC"). The PRC met several times on the matter of Dr. Draghi's suspension, and on November 22, 1993, the PRC recommended that Dr. Draghi be charged with insubordination but that his clinical privileges be restored. The recommendation of the PRC was then forwarded to the EMS for further review. The EMS reviewed the PRC's opinion and recommended that Dr. Draghi's medical privileges be revoked.

Pursuant to the Hospital's Bylaws, an adverse recommendation of the EMS entitled Dr. Draghi to a hearing. Accordingly, in September 1994, a Hearing Committee was formed and a hearing was held. On November 15, the Hearing Committee issued its report, recommending that all the charges against Dr. Draghi be dismissed and that his clinical privileges be restored. The recommendation of the Hearing Committee was sent back to the EMS for another review and recommendation. On December 13, the EMS approved the recommendation of the Hearing Committee and forwarded its recommendation to the Joint Conference Committee (the "JCC"). On January 24, 1995, the JCC rejected the EMS recommendation and determined that Dr. Draghi's clinical privileges should be revoked. On February 7, 1995, the Hospital's Board of Commissioners (the "Board"), the final authority on disciplinary termination matters, adopted the recommendation of the JCC and voted to terminate Dr. Draghi's provisional appointment, clinical privileges, and employment with the Hospital.

Because the decision of the Board was adverse to the recommendation of the EMS, the Hospital's Bylaws required that the Board's decision to terminate be returned to the JCC for review. On March 7, the JCC approved the Board's decision to terminate Dr. Draghi and returned its decision to the Board. On April 5, the Board affirmed its February 7 decision to terminate Dr. Draghi. On April 11, the Hospital's Interim Medical Director wrote Dr. Draghi a letter advising him of the Board's decision.

On April 14, 1997, Dr. Draghi filed a nine- count amended complaint against the Defendants in federal district court. On November 10, the district court issued an order granting the Defendants' motion for summary judgment as to four and one-half of the nine claims. The district court also ordered Dr. Draghi to file factual submissions (pursuant to No. Dist. Ill. Local Gen. R. 12(N)) before it decided the remaining issues in his amended complaint. On February 10, 1998, the district court granted summary judgment in favor of the Defendants on the remaining counts. In granting the Defendants' motion, the district court determined that Dr. Draghi failed to state a due process violation under the Fourteenth Amendment because he had failed to set forth any genuine issues of material fact identifying a property or liberty interest in his employment or clinical privileges at the Hospital. This appeal followed.

On appeal, Dr. Draghi argues that the district court erroneously granted summary judgment in favor of the Defendants because: (1) he had a protectible property interest in his local government employment and in the Hospital's clinical privileges, which he was denied without due process; (2) he had a protectible liberty interest in his employment and calling, which he was denied without due process; and (3) the Hospital violated his substantive due process rights by applying the Bylaws in an arbitrary and capricious manner.

II. Discussion
A. Standard of Review

Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). We review grants of summary judgment de novo. Dr. Draghi must make a showing sufficient to establish each essential element of his cause of action for which he will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548 (1986). He also must show that there is more than a mere metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 106 S. Ct. 1348 (1986). If we cannot find evidence to sustain a jury verdict in favor of Dr. Draghi, we will affirm the district court's grant of the Defendants' motion for summary judgment. Smith v. Severn, 129 F.3d at 419, 425.

In reviewing a motion for summary judgment, we view the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Id. "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." Id. (collecting cases).

B. Alleged Property Interests Creating a Procedural Due Process Violation

We first consider whether Dr. Draghi had a protectible property interest in either his local government employment or in his clinical privileges and if so, whether either of those property rights was denied without due process. The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, sec. 1. However, "property," for purposes of the Fourteenth Amendment, "denotes a broad range of interests that are secured by existing rules or understandings." Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694 (1972) (internal citations and quotations omitted). "Property interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487 (1985) (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701 (1972)).

According to Illinois courts, "[a] person has a property interest in his job where he has a legitimate expectation of continued employment . . . based on a legitimate claim of entitlement." Faustrum v. Board of Fire & Police Comm'rs, 608 N.E.2d 640, 641 (Ill. App. Ct. 1993). "To show a legitimate expectation of continued employment, a plaintiff must show a specific ordinance, state law, contract or understanding limiting the ability of the state or state entity to discharge him." Krecek v. Board of Police Comm'rs of La Grange Park, 646 N.E.2d 1314, 1318-19 (Ill. App. Ct. 1995). A "unilateral expectation of continued employment does not create an entitlement that the due process clause protects." Simpkins v. Sandwich Comm. Hosp., 854 F.2d 215, 218 (7th Cir. 1988). Here, Dr. Draghi has offered no ordinance, contract or other understanding that created a legitimate expectation of employment. Dr. Draghi's mere status as a Hospital employee does not create a property interest for purposes of the Fourteenth Amendment. Cf. Woodbury v. McKinnon, 447 F.2d 839, 842 (5th Cir. 1971) ("A doctor has no constitutional right to practice medicine in a public hospital.").

We next look to the terms of Dr. Draghi's provisional appointment at the Hospital to determine whether his "provisional appointee" status created a property interest for purposes of the Fourteenth Amendment. Article III, sec. 3b of the Bylaws provides, in pertinent part:

PROVISIONAL APPOINTMENT All initial appointments shall be provisional for six months. The Board, upon the recommendation of the [EMS], may extend a provisional appointment for one 6 month period. Provisional appointees shall be elevated to full appointment by the Board on recommendation of the [EMS] after six months of satisfactory service, but if not so recommended within one year of initial appointment, shall be...

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