Floyd-Gimon v. Univ. of Ark. for Med. Scis.

• Decision Date: 18 June 2013
• Docket Number: No. 12–1797.,12–1797.
• Citation: 716 F.3d 1141
• Parties: Donna FLOYD–GIMON, Plaintiff–Appellant v. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, by and through The BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS; John Ed Anthony, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Carl Johnson, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Jane Rogers, in her official capacity as a member of the Board of Trustees of the University of Arkansas; Sam Hilburn, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Mike Akin, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Jim Von Gremp, in his official capacity as a member of the Board of Trustees of the University of Arkansas; John Tyson, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Ben Hyneman, in his official capacity as a member of the Board of Trustees of the University of Arkansas; David Pryor, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Mark Waldrip, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Mary Helen Forest, in her personal capacity; Charles White, in his personal capacity; R.T. Fendley, in his personal capacity; Richard Pierson, in his official and personal capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

716 F.3d 1141

Donna FLOYD–GIMON, Plaintiff–Appellant

v.UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, by and through The BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS; John Ed Anthony, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Carl Johnson, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Jane Rogers, in her official capacity as a member of the Board of Trustees of the University of Arkansas; Sam Hilburn, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Mike Akin, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Jim Von Gremp, in his official capacity as a member of the Board of Trustees of the University of Arkansas; John Tyson, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Ben Hyneman, in his official capacity as a member of the Board of Trustees of the University of Arkansas; David Pryor, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Mark Waldrip, in his official capacity as a member of the Board of Trustees of the University of Arkansas; Mary Helen Forest, in her personal capacity; Charles White, in his personal capacity; R.T. Fendley, in his personal capacity; Richard Pierson, in his official and personal capacity, Defendants–Appellees.

No. 12–1797.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 16, 2013.

Filed: June 18, 2013.

Luther Oneal Sutter, argued, Benton, AR, Matthew Reid Krell, on the brief, Horn Lake, MS, for appellant.

Matthew Blayne McCoy, argued, Mark Arnold Hagemeier, on the brief, Little Rock, AR, for appellee.

Before RILEY, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.

RILEY, Chief Judge.

On May 9, 2008, the University of Arkansas for Medical Sciences (UAMS) terminated Donna Floyd–Gimon's employment based on gross misconduct. Floyd–Gimon sued UAMS, through its Board of Trustees; the trustees in their official capacity; Mary Helen Forrest, Charles White, and R.T. Fendley, each in their personal capacity; and Richard Pierson, in his official and personal capacities (collectively, defendants) under 42 U.S.C. § 1983, alleging, as relevant here, due process violations and gender discrimination in violation of Floyd–Gimon's equal protection rights.¹ Floyd–Gimon appeals from the district court's ² adverse grant of summary judgment. Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUNDA. Facts

Floyd–Gimon was one of two liver transplant coordinators at UAMS. Her immediate supervisors were Sue Weeks and Ann Butts. Floyd–Gimon's duties included monitoring and maintaining patients' records and entering their health information into the United Network for Organ Sharing (UNOS) database. Failing to enter lab results properly could adversely affect patients' eligibility for a transplant.

While auditing UAMS's liver transplant program in 2007 and 2008, UNOS more than once requested documentation of data entries, including several entries made by Floyd–Gimon. Floyd–Gimon and Sue Belcher, the other liver transplant coordinator, agreed Belcher would compile the source documents for UAMS's audit response.

On April 18, 2008, Weeks called Floyd–Gimon to inform her UNOS had questions about the audit, and Weeks asked Floyd–Gimon “about specific lab results and other documents for certain patients.” The same day, Weeks copied Floyd–Gimon on an email in which Weeks asked Belcher to find certain patient records missing from the audit response. On April 19, 2008, Butts included Floyd–Gimon on a second email sent to Belcher, discussing the missing records for several of the patients mentioned in Weeks' email. In total, Weeks' and Butts' emails mentioned nine or ten patients by name.

Weeks and Butts reviewed the audit response, which Belcher gave Weeks on April 24, 2008. Weeks reported her investigation of a suspicious-looking record in the audit response led to the discovery of physically “cut and pasted” records in shred bins. Several of the altered records concerned two of Floyd–Gimon's patients. Butts told her supervisor, Fendley, of the alterations, and Weeks told Forrest, who, as UAMS's Chief Nursing Officer (CNO), “is responsible for overseeing nursing practice quality at UAMS Medical Center and compliance with [Arkansas State Board of Nursing (ASBN) ] rules and regulations.”

On April 25, 2008, Floyd–Gimon, with Belcher, met with Fendley, Butts, and Weeks and was told “discrepancies in the records and ... some actual alterations of records were found,” including some records that had been “cut and pasted.” Floyd–Gimon denied involvement. She was placed on administrative leave the same day.

Jane Hohn and Paula Alonso, compliance officers for UAMS, began investigating who altered the records. At a meeting on April 29, 2008, “Hohn and Alonso asked [Floyd–Gimon] about manipulation of documents, if she was involved in the audit, who worked on it, who had access to her area, and who might have been there.” They also asked Floyd–Gimon whether she had falsified or altered documents, about “the system [Floyd–Gimon] used for documents,” and “the policy for keeping source documents.” Floyd–Gimon denied altering or falsifying records, but stated she “might have” “pull[ed] up a lab report for” Belcher, if Belcher had asked. Floyd–Gimon claims she repeatedly asked to see the allegedly altered documents, but was not permitted to do so at any point in the investigation.

Hohn and Alonso prepared a compliance report, summarizing some of the problems revealed by their investigation. The report detailed instances of inaccurately reported information (including “cut and pasted” records) and “unsupported/undocumented information reported to UNOS.” Some of the altered records Hohn and Alonso identified related to four patients mentioned in Weeks' April 18, 2008 email. Butts also mentioned one of these patients in her April 19, 2008 email.

Floyd–Gimon met with Fendley, Butts, and Dr. Nick Lang on May 9, 2008. At this meeting, Floyd–Gimon “was informed that UAMS determined she had altered medical records for the response to the April 18 audit request.” UAMS officially terminated Floyd–Gimon at the end of the meeting. Fendley's supervisor, Richard Pierson, approved the termination decision. Floyd–Gimon received a termination letter stating she was being terminated for gross misconduct, specifically because of “multiple instances” of Floyd–Gimon both “entering incorrect data into the [UNOS] data base” and altering patient records.³ Floyd–Gimon signed the termination letter, checking a box that indicated she had read, but disagreed with, the explanation of her termination.

On May 16, 2008, Floyd–Gimon filed a grievance with Charles White, the UAMS Assistant Vice Chancellor for Employee Relations, complaining she “was never given the specific details surrounding [her] termination, nor allowed to respond to the allegations[, and] even the ‘general’ statements made to [her] do not constitute ‘gross misconduct’ as defined in UAMS policies.” Floyd–Gimon asked to review the allegedly altered documents, learn “of the specific conduct” of which she was accused, and “be given an opportunity to respond to these allegations to some review panel to determine what discipline, if any, is appropriate.” She also said she “[u]ltimately ... would like to be reinstated, with back pay.”

UAMS's grievance procedure provides that the “Chancellor (or his/her designee) ... may elect to refer the matter to a grievance committee” composed of three UAMS staff members, to review the facts and make a recommendation. The record does not indicate whether such committees may or must conduct any sort of hearing. White, who was not involved in the termination decision, administered the grievance process, and inferentially, was acting as the Chancellor's designee. White either reviewed Floyd–Gimon's grievance himself or sent the grievance to Fendley and Pierson—a disputed fact—but did not refer Floyd–Gimon's grievance to any grievance committee.

At White's request, Fendley and Pierson wrote a memorandum stating their belief Floyd–Gimon's termination was justified because “it [was] clear that” Floyd–Gimon altered patient records, apparently due to “sloppiness ... and, when discovered,” Floyd–Gimon committed “numerous acts of record alteration in order to cover up ... inadequate record maintenance.” The memorandum characterized Floyd–Gimon's behavior as “gross misconduct potentially affecting not only patients' lives, but the ongoing viability of the UAMS Liver Transplant Program.” The memorandum described three specific alterations as examples. On June 6, 2008, White denied Floyd–Gimon's grievance.

On May 22, 2008, Forrest notified the ASBN by letter that UAMS terminated Floyd–Gimon's employment because Floyd–Gimon “intentionally alter[ed] patient medical records to produce source documents needed to respond to a routine care related audit.” In response, ASBN sent Floyd–Gimon a “Letter of Warning” stating, “While employed at UAMS you failed to accurately document ... medical record laboratory and diagnostic findings.”

B. Procedural History

Floyd–Gimon sued defendants under 42 U.S.C. § 1983 in the district court on June 15, 2010, alleging defendants violated the Fourteenth Amendment by depriving Floyd–Gimon of (1) a property interest in her employment without due process; (2) a liberty interest in her reputation without due process; ⁴ and (3) equal protection by terminating Floyd–Gimon because of her gender. On March 16, 2012, the district court granted defendants' motion for summary judgment, finding no evidence Floyd–Gimon either was deprived of any constitutionally protected property or liberty interest or was terminated because of her gender. The district court dismissed Floyd–Gimon's claims for monetary damages against UAMS and the...