GUSE v. Univ. of South Dakota
| Decision Date | 30 March 2011 |
| Docket Number | CIV. 08-4119-KES |
| Parties | STACY GUSE, Plaintiff, v. UNIVERSITY OF SOUTH DAKOTA; TERI BELLIS, acting in her individual and official capacities; KAREN OLMSTEAD, acting in her individual and official capacities; and MARNI JOHNSON, acting in her individual and official capacities, Defendants. |
| Court | U.S. District Court — District of South Dakota |
OPINION TEXT STARTS HERE
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' SUMMARY JUDGMENT MOTIONS
Plaintiff, Stacy Guse, filed suit against defendants, Professor Teri Bellis, Ph.D., Professor Marni Johnson, Ph.D., and University of South Dakota's Graduate School Dean Karen Olmstead, Ph.D., in their individual and official capacities and the University of South Dakota (USD), alleging violations of her substantive and procedural due process rights and retaliation in violation of the First Amendment under 42 U.S.C. § 1983. Guse also alleges state-law claims of breach of contract and negligent infliction of emotional distress. She seeks actual and punitive damages. Defendants move for summary judgment on all claims. Additionally, Dean Olmstead, Dr. Bellis, and Professor Johnson move for summary judgment on the individual capacity claims based on qualified immunity. Guse resists the motions. The motions are granted in part and denied in part.
BACKGROUND
In the light most favorable to Guse, the nonmoving party, the facts are as follows: Guse began an audiology clinical doctoral program at USD in the fall of 2005, which is offered through USD's Department of Communication Disorders (DCOM). It was the program's first year and Guse was one of five enrolled students.
All first-year graduate audiology students must complete twenty-five hours in USD's hearing clinic under faculty members' supervision. First-year students are paired with senior clinicians and Guse was paired with Amy Mattheis. Mattheis reported to Professor Johnson, the clinic director, that Guse overstepped her role as a first-year student because Guse gave her recommendations to patients even though the role of a first-year student is limited to observation. Guse disputes that Mattheis made the alleged report to Professor Johnson. Professor Johnson gave Guse a failing grade for the clinic course. Before receiving her final grade, no instructor had told Guse that she was violating American Speech-Language Hearing Association's (ASHA) ethics by providing her personal opinions to clinic patients.
On November 1, 2005, per Guse's request, hearing tests were performed on Guse's daughter, L.M., at USD's clinic. Dr. Bellis supervised the testing. Guse requested a copy of L.M.'s audiogram after the evaluation. Defendants claim that Dr. Bellis told Guse that she could not give Guse the results until certain correction factors were completed and that she was ethically unable to recommend hearing aids until the conclusion of the follow-up appointment. Guse denies that any ethical obligations were referenced and states that Dr. Bellis did not provide the audiogram report because it was in rough form. Dr. Bellis told Guse that she could request the report in writing and that the Heath Insurance Portability and Accountability Act of 1996 (HIPPA) required the clinic to comply with her request within a limited period of time.
Later, Guse saw Cassie Torgerson (now Billiet), an upper-level student, in the hallway and inquired about obtaining a copy of L.M.'s audiogram results so that Guse could take the report with her to a November 8, 2005, appointment with Sioux Falls otolaryngologist Dr. DeSautel. Billiet had participated in L.M.'s testing and she worked as Dr. Bellis's graduate assistant. Billiet told Guse that as L.M.'s mother Guse could have a copy of everything in her daughter's file. Billiet showed Guse the location of Guse's daughter's medical files and Billiet handed the file to Guse. Guse copied the file and placed the original back in Billiet's student folder. Defendants dispute these facts and contend that Billiet did not give Guse permission to access or copy L.M.'s file. Instead, Billiet claims that she saw Guse enter the file room without her permission and that she reported it to Dr. Bellis because of HIPPA and USD's strict policies on patient confidentiality. Dr. Bellis later removed L.M.'s file from the patient file room and put it in a locked drawer in her office.
Guse took L.M. to her appointment with Dr. DeSautel. Another clinic faculty member, Paul Brueggeman, Ph.D., later received medical clearance from Dr. DeSautel to fit L.M. for hearing aids.
Dr. Bellis scheduled a follow-up appointment with Dr. Brueggeman for November 29, 2005, at a time when Dr. Bellis's evaluative report would be in final form. Dr. Bellis was unexpectantly out of the office due to a death in the family on November 16 and 17. During this time, Guse contacted Dr. Brueggeman to discuss L.M.'s case and order hearing aids. When Guse met with Dr. Brueggeman and a senior clinician, Dr. Brueggeman could not find L.M.'s file because, unknown to clinic staff, it was locked in Dr. Bellis's office. On November 21, 2005, Dr. Brueggeman e-mailed Dr. Bellis and reported that he could not find L.M.'s file. L.M. appeared to be a candidate for amplification, and Dr. Brueggeman received medical clearance from Dr. DeSautel to fit L.M. for hearing aids. Because Dr. Brueggeman could not find L.M.'s file, the hearing aids were not ordered that day. Guse later secured hearing aids for L.M. through Starky Laboratories, Inc., a Minneapolis company.
Dr. Bellis finalized L.M.'s test results and wrote her evaluative report during the week of November 21, 2005. On November 28, 2005, Guse contacted Dr. Brueggeman because she had received L.M.'s hearing aids from Starky Laboratories and wanted Dr. Brueggeman to fit L.M. with the appropriate gain and output. Some time prior to the e-mail that Dr. Brueggeman had sent to Dr. Bellis on November 21, 2005, Dr. Brueggeman received medical clearance from Dr. DeSautel to fit L.M. for hearing aids. The fitting did not occur because L.M. had been removed from Dr. Brueggeman's calendar for an unknown reason. Guse received Dr. Bellis's audiogram report for L.M. in the mail on November 30, 2005.
On or about December 2 or 7, 2005, students in Dr. Bellis's "Professional Issues" course completed course and faculty evaluations. Billiet served as the proctor. The evaluations included a bubble sheet and an area for handwritten comments, which were to be typed up before faculty members received the evaluations to preserve students' anonymity. Billiet collected the evaluations and was directed to deliver them to DCOM's main office. That same day, Guse learned that Dr. Bellis had the handwritten evaluations in her possession. Guse felt that USD's confidentiality policy had been violated because Dr. Bellis had personal possession of her handwritten evaluations. Guse made an appointment with Dean Olmstead for December 15, 2005, through the Dean's assistant, to discuss the situation.
On December 8, 2005, clinic faculty, including Professor Johnson and Dr. Bellis, could not find L.M.'s file. They eventually searched the student clinicians' personal files in Dr. Bellis's office and allegedly found an unauthorized copy of the rough draft of L.M.'s audiogram in Guse's student file. They also allegedly found a fax of a medical release form dated November 17, 2005, from Dr. DeSautel's office to Dr. Brueggeman, authorizing Dr. Brueggeman to fit L.M. for hearing aids. Guse was not present for this search and denies she previously had accessed her student file because, as a first-year student, she did not handle patient files.
That same day, Dr. Bellis contacted Dean Olmstead about finding L.M.'s file in Guse's personal file, but she did not identify the student. During that conversation, Dean Olmstead told Dr. Bellis that she had an appointment with an audiology student the next week to discuss concerns over the anonymity of faculty evaluations.
A day later, on December 9, 2005, Dr. Bellis sent Dean Olmstead a nine-page memorandum discussing her allegations against Guse and her desire to have Guse dismissed from the audiology program. On December 13, 2005, Dean Olmstead, Dr. Bellis, Kurt Hackemer, Ph.D., Associate Dean of the College of Arts and Sciences, and Matthew Moen, Ph.D., Dean of the College of Arts and Sciences, met to discuss the procedures to be used to dismiss a student.
On December 15, 2005, Guse was scheduled to meet with Professor Johnson to discuss her clinic grade. Dr. Bellis also attended the meeting, even though Guse did not know that Dr. Bellis would be at the meeting. Dr. Bellis had already drafted a two-and-a-half page dismissal memorandum, handed it to Guse, told Guse she was dismissed, and collected Guse's clinic keys. A security guard waited outside the meeting to escort Guse from USD's premises and recover her clinic keys if necessary.
Later that day, Guse met with Dean Olmstead for the prescheduled meeting she had set up with Dean Olmstead's assistant to discuss Guse's confidentiality concerns about Dr. Bellis. Her complaint about confidentiality, however, was not discussed and Guse and Dean Olmstead only discussed the process for Guse to follow to appeal the dismissal decision. Guse claims that she never received the opportunity to discuss Dr. Bellis's alleged confidentiality breach.
On December 16, 2005, Guse sent a six-page response to Dr. Bellis's December 15 dismissal memorandum. After considering Guse's letter, Dean Olmstead sent an official dismissal letter to Guse dated December 22, 2005. Dean Olmstead informed Guse that Dean Moen would handle the grievance procedure.
Guse submitted a written response to Dean Moen on February 9, 2009, under step one of the graduate grievance procedure. In a February 23, 2009, letter, Dean Moen upheld Guse's dismissal but recommended that the dismissal be formally removed from Guse's graduate school records. Dean Moen also provided Guse...
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