Zaky v. United States Veterans Admin., Civ. No. F 82-114.

• Decision Date: 08 March 1985
• Docket Number: Civ. No. F 82-114.
• Citation: 605 F. Supp. 449
• Parties: Adib ZAKY, M.D., Plaintiff, v. UNITED STATES VETERANS ADMINISTRATION; James Woytassek; and Sun J. Guo, M.D., Defendants.
• Court: U.S. District Court — Northern District of Indiana

605 F. Supp. 449

Adib ZAKY, M.D., Plaintiff, v. UNITED STATES VETERANS ADMINISTRATION; James Woytassek; and Sun J. Guo, M.D., Defendants.

Civ. No. F 82-114.

United States District Court, N.D. Indiana, Fort Wayne Division.

October 18, 1984.

On Motion for Summary Judgment March 8, 1985.

COPYRIGHT MATERIAL OMITTED

Adib Zaky, M.D., pro se.

David H. Miller, Asst. U.S. Atty., Fort Wayne, Ind., for defendants.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendants' Motion to Dismiss and Motion for Summary Judgment, and plaintiff's Motion for Partial Summary Judgment. For the following reasons, defendants' motion for summary judgment will be granted in part and denied in part, and plaintiff's motion for partial summary judgment will be denied.

This case arises out of plaintiff Zaky's employment as a cardiologist at the V.A. Medical Center at Fort Wayne, Indiana. Zaky was hired on February 22, 1981 pursuant to 38 U.S.C. §§ 4104 and 4106, the statutory provisions which empower the Administrator of the Veterans Administration (V.A.) with hiring authority. Under § 4106(b), Zaky was a "probationary" employee. In the course of his employment, Zaky made various criticisms of, and recommendations for changes in, procedures at the Medical Center, as well as requests that certain accusations against him be investigated or ended. For purposes of resolving these motions, the substance of these recommendations and "complaints" is not important. It is important to note, however, that at least some of these complaints were directed at actions taken by Dr. V.N. Venkatachala, the Chief of Medical Service at the Medical Center.

A series of official charges concerning the plaintiff's work at the Center were filed on four occasions: December 1, 1981; March 15, 1982; April 9, 1982; and July 13, 1982. Zaky responded to each of these sets of charges by filing memoranda or by attempting to initiate some kind of grievance proceeding. On March 15, 1982, Zaky was officially reprimanded by a Professional Standards Board, of which Dr. Venkatachala was one of the three members; and on September 23, 1982 was issued a Notice of Separation after a Professional Standards Board had been convened on July 14, 1982.

Plaintiff's amended complaint alleges several causes of action: (1) his termination based on the recommendations of the July 14, 1982 Board constitutes an unlawful retaliation against the plaintiff for exercising his rights under the first amendment, the regulations under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.; (2) a violation of his "liberty interest" in his professional reputation protected by the fifth amendment, which required that plaintiff be given a hearing to clear his name; (3) the termination violated the minimum guarantees of fairness under 38 U.S.C. § 4106(b); and (4) the decision to terminate was arbitrary and capricious, and as such, subject to reversal by this court pursuant to the Administrative Procedure Act, 5 U.S.C. § 706.

Defendants have responded by filing first a motion to dismiss and then a motion for summary judgment on the entire complaint. For purposes of this order, the motion to dismiss is viewed as merged into the motion for summary judgment. The thrust of the defendants' position is that Dr. Zaky received all the procedural protection that he was entitled to receive under § 4106 and the fifth amendment, and that the statements made by Dr. Zaky were not "matters of public concern" so as to justify first amendment protection. Plaintiff has countered with opposing memoranda and his own motion for partial summary judgment on the fifth amendment issue.

Discussion

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court "can determine whether further exploration of the facts is necessary." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977). A party may not rest on the mere allegations of his pleadings or the bare contentions that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1984). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore's Federal Practice, § 56.15 (2d ed. 1984).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. The court views all evidence submitted in favor of the non-moving party. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Ass'n, 693 F.2d 636, 639 (7th Cir.1982). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Egger, 710 F.2d at 297. See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

This court now turns to the three issues raised by the motions for summary judgment.¹

38 U.S.C. § 4106

At the time of his suspension and termination, plaintiff Zaky was an appointed physician at the Medical Center under the terms of 38 U.S.C. § 4106. Subsection (b) of that section provides that

Such appointments as described in subsection (a) of this section shall be for a probationary period of two years and the record of each person serving under such appointment in the Medical, Dental, and Nursing services shall be reviewed from time to time by a board, appointed in accordance with the regulations of the Administrator, and if said board shall find him not fully qualified and satisfactory he shall be separated from the service.

The review mandated by this section is not extensive. As a probationary employee, Dr. Zaky has "no legitimate claim of entitlement to nor reasonable expectation of continued employment creating a property interest which would require a due process hearing." Giordano v. Roudebush, 448 F.Supp. 899, 904 (S.D.Iowa 1977), aff'd, 617 F.2d 511 (8th Cir.1980) (hereinafter "Giordano I"). He "may be dismissed in a summary review by the board," Giordano v. Roudebush, 617 F.2d 511, 517 (8th Cir.1980) (hereinafter "Giordano II"). During the review of his employment record, he is entitled to notice of why his work is considered deficient and an opportunity to make an oral or written statement on his behalf, Giordano II, 617 F.2d at 511; Kenneth v. Schmoll, 482 F.2d 90, 94 (10th Cir.1973), but he is not entitled to be represented by counsel or to confront and cross-examine witnesses. Giordano II; Schmoll, Suess v. Pugh, 245 F.Supp. 661, 665 (N.D.W.V.1965). Finally, limited review by a professional standards board of a probationary physician's professional competency is the only procedure available to him; § 4106 does not entitle him to any review of the board's disciplinary action. Giordano II.

According to the terms of § 4106(b), the professional standards board which reviews the probationary physician's record must be "appointed in accordance with regulations of the Administrator." According to the Veterans Administration regulations governing appointment of review boards (MP-5, part 2, Ch. 4, § 4(a), July 1, 1974),

Each employee who is subject to completion of the probationary requirements of 38 U.S.C. 4106(b) shall have his record reviewed in a fair and impartial manner by a professional standards board during his probationary period to determine whether his employment in the Department of Medicine and Surgery shall be continued. These reviews shall be based on the need therefor to insure that every reasonable step is taken to ascertain whether employees are fully qualified and satisfactory.

These regulations also require that a board notify a probationary physician in writing that evidence that the physician is not fully qualified is in his record. The notice shall inform the physician of the reasons for the review of his record, that he may appear personally or submit a written statement in his behalf, and that he is not entitled to legal representation during the conduct of the review. Section 4(c). Finally, the regulations provide that "findings and recommendations of the professional standards board will be based on a review of the employee's record and evidence presented during the conduct of the review." Section 4(d).

The defendants have moved for summary judgment, claiming that Dr. Zaky received all that he was entitled to under the statute. However, the statute indicates that the regulations of the Administrator, at least with respect to the appointment of the professional standards board, must be followed. Those regulations require that the review be conducted in a "fair and impartial manner." The thrust of Dr. Zaky's complaint is the board which suspended him was...