Tufaro v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla.

• Docket Number: 23-6039
• Decision Date: 09 July 2024
• Citation: 107 F.4th 1121
• Parties: Anthony P. TUFARO, D.D.S., M.D., F.A.C.S., Plaintiff - Appellant, v. The State of OKLAHOMA EX REL. BOARD OF REGENTS OF the UNIVERSITY OF OKLAHOMA; Jason R. Sanders, M.D., MBA, in his individual and official capacities as the Senior Vice President and Provost; John P. Zubialde, M.D., in his individual and official capacities as the Executive Dean of the College of Medicine; Barish H. Edil, M.D., F.A.C.S., in his individual and official capacities as Chair of the Department of Surgery, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

107 F.4th 1121

Anthony P. TUFARO, D.D.S., M.D., F.A.C.S., Plaintiff - Appellant, v. The State of OKLAHOMA EX REL. BOARD OF REGENTS OF the UNIVERSITY OF OKLAHOMA;Jason R. Sanders, M.D.,MBA, in his individual and official capacities as the Senior Vice President and Provost;John P. Zubialde, M.D.,in his individual and official capacities as the Executive Dean of the College of Medicine;Barish H. Edil, M.D., F.A.C.S.,in his individual and official capacities as Chair of the Department of Surgery, Defendants - Appellees.

No. 23-6039

United States Court of Appeals, Tenth Circuit

FILED July 9, 2024

Appeal from the United States District Court for the Western District of Oklahoma(D.C.No. 5:20-CV-01138-J)

Shannon F. Davies, Spencer Fane, LLP(Courtney D. Powell, with her on the briefs), Oklahoma City, Oklahoma, for Appellant.

M. Daniel Weitman, University of Oklahoma Office of Legal Counsel(Tina S. Ipka and John C. Curtis, III, with him on the brief), Norman, Oklahoma, for Appellees.

Before HARTZ, McHUGH, and FEDERICO, Circuit Judges.

FEDERICO, Circuit Judge.

From 2017 to 2019, Dr. Anthony Tufaro served as Chief of Plastic & Reconstructive Surgery and Professor of Medicine at the University of Oklahoma ("OU").In 2019, OU gave Tufaro notice that his contract would not be renewed.Following his departure from OU, Tufaro filed a wrongful termination lawsuit in state court against OU and three OU doctors in his chain of command (the "Individual Defendants"; together with OU, "Defendants").Generally, he alleges that Defendants terminated him because he was exposing a range of discrepancies and misconduct within OU's Medical and Dental Colleges.

Tufaro's case was removed to federal court and, ultimately, none of his claims advanced past summary judgment.Tufaro now appeals several of the district court rulings that ended his case against Defendants.

I

In March 2017, OU offered Tufaro a "consecutive term" faculty position to serve as Professor of Surgery and Chief of Plastic and Reconstructive Surgery.His offer letter, which he and OU both signed, stated that he would be responsible for a range of research, teaching, clinical, supervisory, and administrative duties.

In September 2017, OU's Board of Regents formally approved Tufaro's appointment and sent him a contract for employment as a non-tenured faculty member.Under the contract terms, Tufaro was "eligible" for consecutive annual term appointments with no restriction on the number of terms he could serve.Aplt. App'x IIIat 128-29.Tufaro signed the contract on October 3, 2017.

Tufaro's contract also specifically incorporated and made Tufaro's employment subject to the OU Health Sciences Faculty Handbook (the "Handbook").The 2017 Handbook, which was in effect at the time, stated that "[c]onsecutive term appointments are automatically renewed for the next fiscal year unless notification of non-renewal is given[.]"Aplt. App'x Iat 39.The Handbook also included a notice period for any "non-renewal" that increased upon each year of employment at OU.For example, in year one, the Handbook guaranteed Tufaro 90 days' notice before any non-renewal could take effect and, in year two, guaranteed at least 180 days' notice.

Under Tufaro's OU employment agreement, Tufaro's appointment renewed automatically in October 2018.In January 2019, he began to voice internal complaints regarding the following topics:

1. billing for unperformed surgical procedures;

2. unsupervised resident surgical procedures;

3. surgical procedures performed outside clinic hours;

4. failing to properly secure medications and drugs;

5. breaches of patient confidentiality; and

6. improper billing and referral protocols by the affiliated oral surgeons employed by OU's College of Dentistry.

Aplt. App'x Vat 93.

Throughout early 2019, Tufaro voiced these complaints within OU by writing emails and engaging with OU's compliance department.All of Tufaro's complaint emails were sent from his official OU email address to other official OU email addresses (i.e., OU medical executives, compliance officials, and oral surgeons affiliated with OU's Dental College), and none of Tufaro's complaints, whether by email or in person, traveled outside OU's campus.

Tufaro's immediate supervisor, Dr. Barish Edil, was the Chair of Surgery at OU.Edil raised issues with Tufaro's performance in the written portion of Tufaro's 2019 annual review, written by hand in a box titled "Department Chair action items."Aplt. App'x IVat 225.Tufaro claims these comments were backfilled after his review to justify his termination.Around this time, Edil consulted with an OU in-house lawyer who suggested that OU could end Tufaro's employment using the non-renewal path set forth in the Handbook.Edil recommended this path in a letter to his supervisor, Dr. John Zubialde, the Dean of OU's Medical College.Edil's letter listed four reasons to support non-renewal, citing issues with Tufaro's "[l]ack of professionalism and collegiality[,]""[i]nsufficient clinical productivity and faculty oversight[,]""[p]oor leadership in recruitment[,]" and "[d]isregard for proper financial & fiduciary management of his division causing extensive losses to the Department and the Division since he began his term."Id at 219.

Zubialde agreed with Edil's suggestion and, in turn, recommended Tufaro's non-renewal to his supervisor, Dr. Jason Sanders.As OU's Senior Vice President and Provost of the Health Sciences Center, Sanders was OU's decisionmaker on this matter.He sent Tufaro a letter in May 2019 providing timely notice of non-renewal of Tufaro's contract.Sanders did not provide any reason or justification to Tufaro, but he did inform him that his employment would end in 180 days, on November 14, 2019, in accord with the notice provision required by the Handbook, § 3.2.7(b).Around six months later, in November 2019, Tufaro exited OU.

To recap, here is the sequence of Tufaro's hiring and departure from OU: The Path to Dr. Tufaro's Non-Renewal

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1. Hiring.OU hires Tufaro in October 2017.

2.Internal Complaints.In January 2019, Tufaro raises complaints on six topics.

3.Annual Review.Tufaro's annual review in March 2019 is positive, although Tufaro alleges that Edil backfilled negative comments.

4.Chair Suggestion.In March 2019, the Chair of Surgery recommends Tufaro's non-renewal to the Medical College Dean.

5.Dean Suggestion.The Dean agrees, and that same month, he recommends Tufaro's non-renewal to the Provost.

6.Notice of Non-Renewal.The Provost sends notice of non-renewal to Tufaro in May 2019, providing him 180 days' notice.

7.Exit from OU.In November 2019, Tufaro departs OU.

Tufaro further claims that, even after he departed, OU continued to retaliate against him.Tufaro alleges his replacement at OU told Tufaro's subsequent employer that his work was subpar and that he was no longer allowed to work with any OU medical residents.He alleges these two comments smeared his professional reputation and caused him harm.

II

The next year, Tufaro filed a lawsuit in Oklahoma state court, asserting he was wrongfully terminated.¹He named as defendants: (1) OU; (2) the Individual Defendants(Edil, Zubialde, and Sanders) in both their official and personal capacities; and (3) three oral surgeons (the "Oral Surgeon Defendants") affiliated with OU's College of Dentistry (who are not at issue in this appeal).Tufaro's Complaint alleged several claims for relief, including federal claims under 42 U.S.C. § 1983(the § 1983 claims) and Oklahoma state law claims.Four claims from the Complaint are at issue on appeal:

1.First Amendment retaliation under § 1983(against all Defendants);

2.Fourteenth Amendment deprivation of property and liberty under § 1983(against all Defendants);

3.Breach of contract (against OU); and

4.Violation of the Oklahoma Constitution, including a Burk tort,² and a freedom of speech claim under Article 2, § 22(against OU).

After a notice of removal, the case was transferred to federal court, in the United States District Court for the Western District of Oklahoma.

A

Once in federal court, Defendants filed a combined motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), which the district court granted in part and denied in part.Regarding the claims against OU at issue on appeal, the district court dismissed:

• all the § 1983 claims, because OU is not a "person";

• the breach of contract claim, because OU followed the Handbook; and

• the freedom of speech claim under Article 2, § 22, of the Oklahoma Constitution, because it does not create a private cause of action.

Tufaro's Burk tort claim, however, survived against OU.

Regarding the claims against the Individual Defendants at issue on appeal, the district court dismissed:

• all the § 1983 claims against the Individual Defendants in their official capacities, because they, too, are not "persons";

• the § 1983 First Amendment retaliation claim against Dr. Sanders in his personal capacity, because there was no allegation he was aware of Tufaro's complaints and therefore could not have retaliated based upon them; and

• the § 1983 liberty and property claims against all the Individual Defendants in their personal capacities, for failure to plead an entitlement (property claim) or the elements needed to show harm to reputation (liberty claim).

The § 1983 First Amendment retaliation claim against Zubialde and Edil (two of the three Individual Defendants) in their personal capacities survived the motion to dismiss, and the district court rejected their qualified immunity defenses.

The motion to dismiss order granted Tufaro leave to amend his complaint, and Tufaro filed a First Amended Complaint.Two claims alleged in the First Amended Complaint are now at issue on appeal:

• the § 1983 First Amendment retaliation claim against Dr. Edil and Dr. Zubialde; and

• the Burk tort claim against OU.

In the First Amended Complaint, Tufaro omitted, among other claims,...