The opinion of the court was delivered by: Karen E. Schreier Chief Judge
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.
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 with a copy of the grievance procedure, which stated she had to file an appeal within fifteen days. On May 8, 2006, Guse e-mailed Dean Olmstead her step-two grievance letter. On May 16, 2006, Dean Olmstead responded and notified Guse that because she failed to file her appeal within fifteen days, her time for an appeal had expired.
Guse then filed a complaint against Dr. Bellis with Robert Hakl, USD's director of the Office of Equal Opportunity and Diversity, alleging that her dismissal was in retaliation for the complaint she made against Dr. Bellis. On May 26, 2006, Hakl concluded that there was no reasonable basis to believe that Guse was subject to retaliation. Guse then filed this lawsuit.
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Only disputes over facts that might affect the outcome of the case will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is inappropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court views the facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citation omitted).
Similarly, the nonmoving party receives "the benefit of all reasonable inferences to be drawn from the underlying facts" in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
Guse seeks damages for the alleged violations of her procedural and substantive due process rights and retaliation for exercising her First Amendment rights from Dean Olmstead, Dr. Bellis, and Professor Johnson in their individual and official capacities and from USD under § 1983. Section 1983 provides a civil cause of action against any person who, under color of state law, causes a deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States. 42 U.S.C. § 1983; McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009).
A. Individual Capacity Claims
In an individual capacity suit under § 1983, a plaintiff seeks to impose personal liability on a state actor for actions taken under color of state law. Monell v. Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978). Only state actors whose personal conduct caused the deprivation of a federal right are liable under § 1983. Pulaski Cnty. Republican Comm. v. Pulaski Cnty. Bd. of Election Comm'rs.,956 F.2d 172, 174 (8th Cir. 1992) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
When a state actor is sued in her individual capacity, she can plead an affirmative defense of qualified immunity. Serna v. Goodno, 567 F.3d 944, 952 (8th Cir. 2009). Qualified immunity will normally shield a state actor from individual liability if her conduct occurred during the course of her state-authorized activities. Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 (1982)).
To overcome a defense of qualified immunity, the court must find: "(1) whether the facts alleged, construed in the light most favorable to the nonmoving party, establish a violation of a constitutional right, and (2) whether such right was clearly established so that a reasonable [state actor] would have known her actions were unlawful." El-Ghazzawy v. Berthiaume, F.3d , No. 10-2058, 2011 WL 869599, at *3 (8th Cir. 2011) (citing Doe v. Flaherty, 623 F.3d 577, 583 (8th Cir. 2010); Harlow, 457 U.S. at 818). The court has the discretion to choose which prong to analyze first. Pearson v. Callahan, 555 U.S. 223, , 129 S. Ct. 801, 821-22 (2009) (overruling the mandatory two-prong analysis established in Saucier v. Katz, 533 U.S. 194 (2001)).
Under the second element, "[a] plaintiff who seeks damages for a violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue." Davis v. Scherer, 468 U.S. 183, 197 (1984); see also Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007) ("Although the defendant bears the burden of proof for this affirmative defense, the plaintiff must demonstrate that the law was clearly established."(citing Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002)). The decisive fact in the clearly established analysis is not whether the state actor's position turned out to be incorrect but rather was the question open at the time she acted. Mitchell v. Forsyth, 472 U.S. 511, 535 (1985). The law is clearly established if there is a Supreme Court or a Circuit Court of Appeals case on point. Roach v. Univ. of Utah, 968 F. Supp. 1446, 1454 (D. Utah 1997) (citing, among other cases, Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
If Guse can prove that the law was clearly established, the burden shifts to defendants to show that they acted reasonably in accordance with the clearly established law. Monroe, 495 F.3d at 594. To make this showing:
The contours of the right must be sufficiently clear that a reasonable official would understand that what [s]he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Anderson, 483 U.S. at 639-40. The issue revolves around a standard of objective reasonableness because "[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004); see also Riehm v. Engelking, 538 F.3d 952, 962 (8th Cir. 2008) ("Qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.' " (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))). Accordingly, the question is "whether a reasonable [university professor] could have believed [Guse's dismissal] to be lawful, in light of clearly established law and the information [defendants] possessed. [Defendants'] subjective beliefs about the [dismissal] are irrelevant." Anderson, 483 U.S. at 641. This is a case-by-case determination: " 'This second step is a fact-intensive inquiry and must be undertaken in light of the specific context of the case, not as a broad general proposition.' " ElGhazzawy, 2011 WL 869599, at *6 (quoting Seymour v. City of Des Moines, 519 F.3d 790, 798 (8th Cir. 2008)).
1. Procedural Due Process
Guse alleges violations of her procedural due process rights. The Fourteenth Amendment protects against a state depriving an individual of her liberty or property interest. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). Before Guse can argue that USD violated her due process rights, she must identify the right at issue. See id.
In their brief, defendants assume that Guse had a property interest in her continued enrollment in the audiology program. Docket 34 at 15 ("Assuming Guse had a property interest in her continued enrollment in the audiology program at USD . . . ."). In Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985), the Supreme Court "accept[ed] the University's invitation to 'assume the existence of a constitutionally protectable property right in [Ewing's] continued enrollment.' " Id. at 223 (quoting the oral argument transcript). Similarly, the court accepts defendants' invitation to assume that Guse had a property interest in her continued enrollment in USD's audiology program that is protected by the Fourteenth Amendment.
" 'Once it is determined that due process applies, the question remains what process is due.' " Goss v. Lopez, 419 U.S. 565, 577 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Whether a person is entitled to due process is a question of law for the court. Peery v. Brakke, 826 F.2d 740, 744 (8th Cir. 1987).
In a university student's procedural due process case, the initial determination is whether the dismissal was for an academic or disciplinary reason because "far less stringent procedural requirements [are necessary] in the case of an academic dismissal." Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 86 (1978). " 'Misconduct and failure to attain a standard of scholarship cannot be equated. . . . There is a clear dichotomy between a student's due process rights in disciplinary dismissals and in academic dismissals.' " Id. at 88 n.4 (quoting Mahavongsanan v. Hall, 529 F.2d 448, 449-50 (5th Cir. 1976)).
Courts typically defer to a university when it dismisses a student for academic reasons. Ewing, 474 U.S. at 225. Deference is given because to "determine whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking." Horowitz, 435 U.S. at 90. Contrastingly, a court gives less deference to a university's disciplinary decision. Id. While a university has the "latitude and discretion" to formulate its rules and regulations and set "general standards of conduct," a student discharged for a disciplinary reason must receive "adequate notice, definite charge, and a hearing with an opportunity to present one's own side of the case and with all necessary protective measures." Esteban v. Cent. Mo. State Coll., 415 F.2d 1077, 1088 (8th Cir. 1969)(citations omitted); see also Jones v. Snead, 431 F.2d 1115, 1117 (8th Cir. 1970) (articulating an identical standard). In Greenhill v. Bailey, 519 F.2d 5 (8th Cir. 1975), a case involving an academic dismissal that carried a stigma, the Eighth Circuit required "at the very least . . . an opportunity to appear personally to contest" the allegations. Id. at 7. In announcing that standard, the Greenhill court reasoned that its "holding today is not an effort to blur that distinction [between academic and disciplinary dismissals] but rather an acknowledgment that the dictates of due process, long recognized as applicable to disciplinary expulsion . . . apply in other cases as well . . . . " Id. at 8-9 (emphasis added). Accordingly, a student dismissed for either a disciplinary reason or an academic reason that carries a stigma should receive notice of all the allegations against her and an opportunity for an in-person hearing to present her side of the story.
Guse argues that she was dismissed for allegedly violating HIPPA and ASHA's ethical codes, and that her dismissal was discipline for these alleged violations. Defendants respond that audiology students must learn to abide by HIPPA and ASHA and that Guse's failure to do so meant that she did not meet USD's academic standards; thus, her dismissal was academic.
A disciplinary dismissal is usually based on a student's misconduct. Horowitz, 435 U.S. at 86. It is an objective determination and not "dependent upon the analytical expertise of professional academicians." Roth, 408 U.S. at 569. Disciplinary decisions bear a "resemblance to traditional judicial and administrative factfinding." Id. When a student is compelled by a university's rule, order, or law to do something and is discharged for failing to do as ordered, the discharge is disciplinary. Mauriello v. Univ. of Med. & Dentistry, 781 F.2d 46, 50 (3d Cir. 1986). ...