Lewis v. University of Texas Medical Branch

Case: 11-40456 Document: 00511701581 Page: 1 Date Filed: 12/20/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 20, 2011

No. 11-40456 Lyle W. Cayce

Summary Calendar Clerk

RAY P. LEWIS,

Plaintiff - Appellant

v.

UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON;

DR. GARLAND ANDERSON, Provost and Dean of Medicine, in His Official

Capacity; DR. TETSUO ASHIZAWA, Then Chairman of the Neurology

Department, in His Official Capacity; KIRK RODEN, Department

Administrative Head; DR. CLAUDIO SOTO; DR. PEDRO FERNANDEZ-

FUNEZ

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:

In this action brought under 42 U.S.C. § 1983 for wrongful termination,

Plaintiff-Appellant Ray P. Lewis (“Lewis”) appeals the district court’s grant of

summary judgment on his claims against Defendants-Appellees University of

Texas Medical Branch at Galveston (“UTMB”), Dr. Garland Anderson

(“Anderson”), Dr. Tetsuo Ashizawa (“Ashizawa”), Kirk Roden (“Roden”), Dr.

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No. 11-40456

Claudio Soto (“Soto”), and Dr. Pedro Fernandez-Funez (“Fernandez-Funez”). We

AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Until his termination in 2008, Lewis was employed by UTMB, a state

agency, to provide information technology support. In that role, Lewis served

three UTMB departments, including Neurology, the department for which

Dr. Ashizawa served as Chair and in which Drs. Soto and Fernandez-Funez

worked. According to Lewis, by at least late 2007, he had problems with

members of the Neurology department engaging in activities, and requesting

Lewis to engage in activities, which Lewis believed violated UTMB security

policies. Lewis’s solution was to limit Neurology department staff’s

administrative access to their computers, so that Lewis could review and decline

activities he felt breached UTMB policy. Lewis refused requests to allow greater

access by the Neurology department staff. These actions lead Drs. Soto and

Fernandez-Funez to complain about Lewis’s “inflexibility” to his supervisor,

Marie Camp (“Camp”). In an email to colleagues, Dr. Soto expressed a desire to

“get rid of the R problem.”

In early 2008, at about the time of these complaints, Lewis requested a

salary adjustment to bring his salary in line with the average of similar

employees. On March 1, 2008, the request was partially granted.

Shortly thereafter, on March 20, 2008, Camp and Roden, the department

administrator for the Neurology department, gave Lewis a performance

evaluation. The evaluation provided Lewis an overall score of “occasionally

meets,” the second highest of five levels. The evaluation also noted, however,

certain deficiencies in Lewis’s interaction with the colleagues for whom he

provided information services. The evaluation stated Lewis “needs to become

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more professional in dealing with the departmental customers and providing

their services.”1

Lewis refused to sign the evaluation, believing that it placed

disproportionate emphasis on Neurology department members’ complaints,

which Lewis believed were baseless and originated out of his responsibility to

enforce UTMB security policies. According to Lewis, because Roden would not

inform him of the reason for the noted deficiencies, Lewis conducted an in-person

survey of the UTMB employees he supported. After Dr. Fernandez-Funez

complained that Lewis could “use those surveys to identify the people getting

him in trouble,” Roden ordered Lewis to cease the survey, telling Lewis certain

employees possibly felt “harassed.” Lewis ceased the survey, but responded that

he was “following the explicit directive [Roden] gave [him] to contact Neurology

users” and “to identify what problems exist and [f]ormulate a solution[ ].”

On March 31, 2008, Camp issued a memorandum to Lewis providing a

description of issues related to Lewis’s work, and expectations as to each issue.

The memorandum stated that “[i]t would be helpful to us if you would develop

an action plan by no later than Monday, April 7, 2008,” and requested Lewis to

create proposed meeting agendas for weekly meetings with Camp to discuss

Lewis’s progress.

Lewis, however, did not draft an action plan nor a meeting agenda, but

rather filed a grievance with Ashizawa, alleging that his evaluation was biased

and without support, and that the “employee coaching” was in fact a disciplinary

action representing a “collaborative attempt[] to justify [his] unfair

compensation rate.” Ashizawa denied the grievance on April 14, 2008, noting,

1

The evaluation in the record also states Lewis was to “[d]evelop mutually accepted

goals and metrics to improve service delivery over the next six (6) months.” Lewis, however,

stated that the version he was shown on March 20, 2008 did not include that language and

that it was instead added at a later date.

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“during the past year I repeatedly heard complaints from our basic science

faculty regarding your inflexibility, which resulted in negative effects on the

efficient operations of our research activities.”

On April 18, 2008, Camp and Roden issued a joint “Memo of Job

Performance Expectations & Improvement Plan,” laying out the same issues and

expectations as the March 31 memo. The memo again requested Lewis create

an “action plan,” extending the deadline to April 25, 2008, and again requested

Lewis prepare agendas for weekly coaching and team management meetings.

Rather than complete the action plan or agendas, Lewis contacted UTMB

employees for whom he provided service and solicited letters of support. A

number of employees obliged, including at least two assistant professors in

Neurology, but not Dr. Soto or Dr. Fernandez-Funez. On April 29, 2008, Lewis

then appealed the denial of his grievance to Dr. Anderson, the Dean of UTMB’s

School of Medicine and Provost of UTMB. That same day, Lewis met with Camp

and Roden for the purpose of developing his action plan. Lewis, however,

refused to develop the plan on the ground that his grievance had been filed, and

that he believed their actions were inappropriate.

Around this same time, Roden requested Lewis inquire with Information

Systems about the status of a project. Instead of complying, Lewis responded,

“You seem to have a close relationship with the IS director and may get a more

immediate response if you pose your question to him[;] [i]n the meantime, my

best option is to be patient enough for the process to take place.”

On May 12, 2008, Camp and Roden issued another memo to Lewis, which

purportedly “serve[d] as a final written reminder due to [Lewis’s] failure to

maintain standards of conduct suitable and acceptable to the work environment

as required by UTMB [Policy], specifically [Lewis’s] failure to follow instructions

and to cooperate with [his] supervisor, resulting in impairment of the work

function.” The memo further ordered Lewis to “develop[] a performance

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improvement plan, and fully participat[e] in coaching meetings.” The memo

warned Lewis that further failure to adhere to the expectations could result in

his termination.

Lewis finally completed and submitted a plan to Camp on May 15,

apparently stating that he would continue to follow UTMB policies. Camp,

however, found Lewis’s plan deficient as it omitted information that was needed

in a performance improvement plan. She therefore emailed Lewis a model plan,

and requested that he “define the exact steps [he] [would] take to meet the

expectations in the areas [he] need[ed] to improve upon.” On May 19, Lewis

submitted his revised plan, which consisted of the form plan Camp had emailed

to him with following language as the action to be taken for each area of

improvement:

WILL CONTINUE TO COOPERATE AND WILL CONTINUE TO

FOLLOW UTMB POLICIES AND PROCEDURES AND BEST

PRACTICES (SEE ATTACHED)

The referenced attachment reiterated the complaints of his previous grievance,

alleging that Neurology’s complaints were baseless and arose out of his

enforcement of UTMB policies, and that Camp was attempting to force him to

acknowledge that his behavior was deficient in an attempt to justify a lower

salary. Camp did not find Lewis’s submitted plan satisfactory.

On May 30, 2008, Dr. Anderson denied Lewis’s grievance, noting, “you

were asked to submit a Performance Improvement Plan . . . [;] [t]o date, you have

not provided the plan.” Moreover, Dr. Anderson found “no evidence that you

have been asked to engage in illegal conduct.” Dr. Anderson concluded, “your

refusal to cooperate with your supervisors is due to an inability to accept

constructive criticism and work productively with others.”

On June 4, 2008, Lewis was notified by letter of his termination by Camp,

“due to [his] continued failure to maintain standards of conduct suitable and

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acceptable to the work environment, specifically [his] failure to follow

instructions and to cooperate with [his] supervisor.” Lewis appealed his

termination, and, pursuant to UTMB policy, a hearing was held on August 19,

2008, at which Lewis was represented by counsel. The hearing panel, consisting

of three individuals not named as parties here, heard testimony from Ashizawa,

Camp, Roden, Lewis, and the director of information services for UTMB. The

panel found that “UTMB proved by a preponderance of the credible evidence that

good cause exists for [Lewis’s] termination.” In particular, the panel found “[i]t

is evident that [Lewis] did not respect his supervisors as he has repeatedly

refused to sign job related paperwork and did not actively participate in the

[Performance Evaluation Process].” Lewis was notified of the panel’s decision

on September 4, 2008.

Thereafter, on March 6, 2009, Lewis brought the instant suit under 42

U.S.C. § 1983, alleging violations of his procedural and substantive due process

rights, and violation of his right to equal protection. On August 20, 2010,

Defendants moved for summary judgment. On January 26, 2011, the Magistrate

Judge to which the case had been referred issued a report and recommendation,

recommending summary judgment be granted to Defendants on Lewis’s

procedural due process and equal protection claims, and on Lewis’s substantive

due process claim against UTMB, but recommended summary judgment be

denied on Lewis’s remaining substantive due process claim against the

individual defendants. Each party filed objections to the Magistrate Judge’s

report, and, on March 16, 2011, the district court granted summary judgment to

Defendants on all of Lewis’s claims. This timely appeal followed.

STANDARD OF REVIEW

“We review a grant of summary judgment de novo, applying the same legal

standard as the district court.” Croft v. Governor of Tex., 562 F.3d 735, 742 (5th

Cir. 2009) (internal quotation marks omitted). Summary judgment should be

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rendered if the record demonstrates that “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). “An issue is material if its resolution could affect the outcome

of the action.” Daniels v. Cty. of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.

2001). “In deciding whether a fact issue has been created, the court must view

the facts and the inferences to be drawn therefrom in the light most favorable

to the nonmoving party.” Id. This Court may affirm summary judgment “on any

grounds supported by the record.” Lifecare Hosps., Inc. v. Health Plus of La.,

Inc., 418 F.3d 436, 439 (5th Cir. 2005).

ANALYSIS

Lewis appeals the district court’s grant of summary judgment on his

substantive due process claim.2 Lewis argues that he established a genuine

dispute of material fact as to his property interest in his employment with

UTMB and as to the basis for his termination. Lewis further argues that UTMB

is not entitled to immunity.

I. Eleventh Amendment

In resolving this appeal, the Court must first determine whether UTMB

is entitled to immunity from suit under the Eleventh Amendment. See United

States v. Tex. Tech Univ., 171 F.3d 279, 285-86 & n.9 (5th Cir. 1999) (stating that

Eleventh Amendment immunity must be resolved prior to reaching merits). “It

is clear, of course, that in the absence of consent a suit in which the State or one

of its agencies or departments is named as the defendant is proscribed by the

Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 100 (1984). Although Lewis argues his suit may proceed because he seeks

prospective relief, “[t]his jurisdictional bar applies regardless of the nature of the

relief sought,” id. Lewis confuses the ability to seek prospective relief against

2

Lewis does not appeal the district court’s grant of summary judgment on his equal

protection and procedural due process claims.

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state officials, see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989),

with an ability to seek prospective relief against the State and its agencies.

Lewis concedes UTMB is a state agency, see TEX. EDUC. CODE ANN. § 61.003(5),

TEX. GOV’T CODE ANN. § 572.002(10)(B), and does not argue Texas has consented

to suit. Nor has Congress expressly waived sovereign immunity for § 1983 suits.

See Quern v. Jordan, 440 U.S. 332, 340-45 (1979). Accordingly, UTMB is

immune from Lewis’s suit.

II. Substantive Due Process

“To succeed with a claim based on substantive due process in the public

employment context, the plaintiff must show two things: (1) that he had a

property interest/right in his employment, and (2) that the public employer’s

termination of that interest was arbitrary or capricious.” Moulton v. Cty. of

Beaumont, 991 F.2d 227, 230 (5th Cir.1993). “Substantive due process ‘bars

certain arbitrary, wrongful government actions regardless of the fairness of the

procedures used to implement them.’” Marco Outdoor Adv., Inc. v. Regional

Transit Auth., 489 F.3d 669, 673 n.3 (5th Cir. 2007) (quoting Zinermon v. Burch,

494 U.S. 113, 125 (1990)). Nonetheless, “substantive due process requires only

that public officials exercise professional judgment, in a nonarbitrary and

noncapricious manner, when depriving an individual of a protected property

interest.” Texas v. Walker, 142 F.3d 813, 819 (5th Cir. 1998) (citing Regents of

the Univ. of Mich. v. Ewing, 474 U.S. 214, 223-26 (1985)). The fact that

“reasonable minds could disagree on the propriety of [the plaintiff]’s

termination” is insufficient to defeat a public official’s qualified immunity

against a substantive due process claim. Id. Rather, the plaintiff must show

that the decision was “made without a rational connection between the known

facts and the decision or between the found facts and the evidence.” Meditrust

Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999)

(quotation marks omitted). The plaintiff must “demonstrate that the abuse of

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power by the state official shocks the conscience.” Marco, 489 F.3d at 673 n.3

(quotation marks omitted) (finding award of advertising contract to bidder other

than lowest did not “shock the conscience,” and thus did not establish violation

of substantive due process).

Here, putting aside Lewis’s purported property interest in his

employment, he nonetheless failed to identify a genuine dispute that his

termination was arbitrary and capricious, or that the decision was made without

professional judgment. Assuming the Neurology department’s complaints were

solely the result of Lewis’s required enforcement of UTMB security policies and

a desire on the part of Neurology department members to have Lewis

terminated, the decision to terminate him had a basis in undisputed fact: Lewis’s

continued disrespect for his superiors and refusal to cooperate with his

supervisors’ request to develop a performance improvement plan. See Walker,

142 F.3d at 819 (finding termination was not arbitrary and capricious where

plaintiff, inter alia, refused to cooperate with employer in resolving dispute).

Indeed, it was such refusal that was the stated basis for his termination, not his

interaction with Neurology. Lewis was requested, at least as early as March 31,

2008, to develop a memorandum outlining steps to improve “professional[ism]

in dealing with the departmental customers,” as well as other identified issues.

He submitted a plan roughly a month and a half later, after numerous

reminders and extensions. Even then his plan consisted of nothing more than

denial that any improvement was warranted, and an assurance, written in all

caps, that he would continue to behave as before. Lewis gave no credence to his

supervisor’s evaluation, and demonstrated no interest in utilizing the process

outlined by his supervisors to explore opportunities to improve his work, even

though he admitted “[g]rumbling” by staff he supported. In light of such

behavior, Lewis’s termination does not “shock the conscience.” See Marco, 489

F.3d at 673 n.3.

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Accordingly, Lewis fails to identify a genuine dispute to defeat summary

judgment on his substantive due process claim.

CONCLUSION

For the reasons stated above, the judgment of the district court is

AFFIRMED.

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