Fiscus v. Piercey

• Decision Date: 06 January 2022
• Docket Number: 3:21-cv-00686
• Citation: 578 F.Supp.3d 968
• Parties: Michelle FISCUS, M.D., FAAP, Plaintiff, v. Commissioner Lisa PIERCEY, M.D., MBA, FAAP, Tennessee Department of Health, in her official and individual capacities; Chief Medical Officer Tim Jones, M.D., Tennessee Department of Health, in his official and individual capacities, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

578 F.Supp.3d 968

Michelle FISCUS, M.D., FAAP, Plaintiff,

v.Commissioner Lisa PIERCEY, M.D., MBA, FAAP, Tennessee Department of Health, in her official and individual capacities; Chief Medical Officer Tim Jones, M.D., Tennessee Department of Health, in his official and individual capacities, Defendants.

No. 3:21-cv-00686

United States District Court, M.D. Tennessee, Nashville Division.

Filed January 6, 2022

Christopher W. Smith, David Randolph Smith, Dominick R. Smith, William Lyon Chadwick, Jr., Law Offices of David Randolph Smith & Associates, Nashville, TN, for Plaintiff.

Hamilton Millwee, Stephanie A. Bergmeyer, Steven Ashley Hart, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

On July 12, 2021, Dr. Michelle Fiscus was terminated from her position as Medical Director of the Vaccine-Preventable Diseases and Immunization Program at the Tennessee Department of Health ("TDOH"). Days later, an internal memorandum ("the memo") began circulating in the media that Dr. Fiscus insists impugned her honesty and morality by "casting her as a rogue political operative pursuing her own agenda and as a self-dealing grifter of the public purse, seeking to divert government funds to an organization in which she had an unethical material financial interest." (Doc. No. 1, Cmpl. ¶ 123). When Dr. Fiscus requested, but did not receive, a name-clearing hearing as envisioned by the Supreme Court in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), she filed suit in this Court against the author of the memo, Dr. Tim Jones, TDOH Chief Medical Officer, and its recipient, TDOH Commissioner Dr. Lisa Piercey.

Although the Complaint runs 25 pages and contains 135 paragraphs, it has but one cause of action – a Fourteenth Amendment "stigma-plus" liberty interest claim. At a minimum, Defendants are entitled to qualified immunity on that claim and, accordingly, their Motion for Judgment on the Pleadings (Doc. No. 9) will be granted as to Dr. Fiscus's claim for monetary damages. They will remain as Defendants for purposes of potential declaratory and injunctive relief, however.

I.

Because it is central to the Complaint, the Court sets forth the memo from Dr. Jones to Dr. Piercey in its entirety:

Based on program management deficiencies and failure to follow appropriate processes and procedures, please accept this recommendation to expire the executive service of Dr. Michelle Fiscus, Director, Vaccine Preventable Diseases and Immunization Program (VPDIP), Tennessee Department of Health.

This recommendation is based on Dr. Fiscus's failure to maintain good working relationships with members of her team, her lack of effective leadership, her lack of appropriate management, and unwillingness to consult with superiors and other internal stakeholders on VPDIP projects.

On multiple occasions during the 2020-2021 COVID response, Dr. Fiscus has failed to maintain satisfactory and harmonious relationships among her team. In February 2021, CEDEP leadership and TDH Human Resources received multiple complaints from program staff regarding her management style, treatment of employees, and poor program morale. Dr. Dunn met with five senior team members who expressed consistent complaints related to management of the program by Dr. Fiscus during the COVID response. He had several coaching sessions with Dr. Fiscus, with minimal improvement in the situation noted. Two of her most senior leaders have subsequently resigned.

On March 7, 2021, Dr. Dunn and I met with Dr. Fiscus and another departmental physician to mediate complaints against Dr. Fiscus of disrespectful treatment and ineffective management. The meeting terminated with a refusal of both parties to communicate constructively, and with a refusal by the other physician to work further on the VPDIP team. Dr. Fiscus was coached on professionalism and teamwork.

Dating back to December 2020, the vaccine planning team required intervention by CEDEP leadership to address inefficient use of team resources, including poor inter-program communication regarding vaccine distribution. Repeated failures by Dr. Fiscus to appropriately delegate to others resulted in repetitive, long, and inefficient meetings. These meetings took already busy colleagues away from other tasks.

Over the past three months Dr. Fiscus requested to give a new non-profit organization TDH funding to support VPDIP activities. This organization was founded and led by Dr. Fiscus, had no Executive Director or other employees, and had no other substantive source of funding. Providing funds to such an entity would be poor judgement [sic] and a substantial conflict of interest.

In June, 2021, Dr. Fiscus communicated directly with a state university regarding the department producing COVID-vaccine reports for the institution. She did not notify or consult with supervisors, and the situation only became evident when departmental legal counsel received formal documents directly from the university memorializing the arrangement. The requested reports were not produced by the department.

In May, 2021, Dr. Fiscus broadly shared a letter regarding her own interpretation of state and federal law with external partners with respect to vaccinations

and other medical treatment of minors. The letter should have been reviewed by both leadership and departmental legal counsel. However, Dr. Fiscus did not share the letter nor otherwise include any of these parties in the drafting process prior to sending it out. This action resulted in confusion of both law and policy for private providers, parents, and legislators.

These examples clearly demonstrate that Dr. Fiscus's performance in this role has led to strained relationships with internal and external stakeholders at multiple levels, and to an ineffective and noncohesive workplace. Her leadership and management of her team does not foster the culture or environment expected at the Tennessee Department of Health.

(Doc. No. 1-1 at 1-2).

Dr. Fiscus was not aware of the memo or its contents at the time of her termination. Instead, she learned about the memo after it had been leaked to the press and received extensive coverage, including publication in the ASSOCIATED PRESS , the DAILY NEW JOURNAL in Murfreesboro, Tennessee, the CANADIAN PRESS , the CHATTANOOGA TIMES FREE PRESS , and the TENNESSEAN in Nashville. (Doc. No. 1-2 at 1-19). Some outlets published the memo in its entirety. A copy of the memo was also placed in Dr. Fiscus's personnel file by Defendants. (Cmpl. ¶ 17).

Dr. Fiscus particularly takes issue with two of the paragraphs in the memo that she deems to be stigmatizing for purpose of her Fourteenth Amendment claim. The first relates to her allegedly requesting funding for a non-profit agency, and the suggestion of financial impropriety and self-dealing in relation thereto. According to the allegations in the Complaint, which must be accepted as true on a motion to dismiss, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), this is an intentional and stigmatizing mis-characterization of what occurred. In actuality the non-profit in question was "ImmunizeTN," whose mission was "to ensure all Tennesseans benefit from the protections provided by immunizations so that together we can achieve a healthy, thriving Tennessee free of vaccine-preventable diseases." (Id. ¶ 25). Dr. Fiscus served "only in an ex-officio advisory capacity" to that non-profit, was not on the board of directors or payroll, and had "no financial interest whatsoever" in it. (Id. ¶ 26, 28). Moreover, Dr. Jones actually praised Dr. Fiscus for her role in the organization, writing in February 19, 2019 performance evaluation: "[Dr. Fiscus] has taken the initiative to start a statewide coalition[ImmunizeTN] which has been very successful." (Id. ¶ 27).

The second relates to the paragraph about Dr. Fiscus allegedly sharing a letter interpreting the law about vaccinating minors (and more specifically, the "mature minor doctrine" that holds some children are mature enough to make decisions for themselves), without it having been reviewed by her superiors and counsel. Again, accepting the Complaint's allegations as true, the allegations in that paragraph are demonstrably false.

According to Dr. Fiscus, her letter contained "language taken verbatim from a memorandum provided to [her] by Grant Mullins, a Dep[artment] of Health attorney," that was sent via email from him to her. (Id. ¶ 32). The email went on to state that the attached memorandum had been "blessed by the Governor's office" and that Dr. Fiscus should "feel free to distribute [it] to anyone." (Id. ¶ 33).

The notion that minors could be vaccinated without parental consent did not sit well with many. In fact, "Republican legislators took issue with the mature minor doctrine and specifically associated that doctrine with Dr. Fiscus." (Id. ¶ 38). One legislator even called for the dissolution of the Department of Health. (Id. ¶ 39). The ensuing imbroglio led to calls for Dr. Fiscus's removal, even though she did not "play any role in the creation of the mature minor doctrine or the [Department's] historical reliance on that doctrine." (Id. ¶ 41).

After the memo was disseminated, counsel for Dr. Fiscus sent Mr. Mullins and Defendants a formal request for a name-clearing hearing. That request was summarily denied by Mr. Mullins "because [Dr. Fiscus] has not established the elements necessary to show entitlement to a name-clearing hearing[.]" (Id. ¶¶ 43, 44).

Dr. Fiscus claims that, as a result of Dr. Smith's memo and what followed, her standing and association in the community were severely tarnished. She alleges that things became so bad that she and here husband placed their home up for sale, intending to relocate to another state where she could find employment. (Id. ¶¶ 45, 46).¹

Defendants move for judgment on the pleadings,...