Fenje, Paul v. Feld, James ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1056
PAUL FENJE, M.D.,
Plaintiff-Appellant,
v.
JAMES FELD, M.D., in his official
capacity and in his individual capacity,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 9684—William T. Hart, Judge.
____________
ARGUED SEPTEMBER 22, 2004—DECIDED FEBRUARY 15, 2005
____________
Before COFFEY, WILLIAMS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Dr. Paul Fenje was accepted into
the anesthesiology residency program at the University
of Illinois at Chicago (UIC). Shortly thereafter, but before
the residency began, the program’s director learned that Dr.
Fenje had been terminated from a previous residency
because of questions about his competency. Based on his
lack of candor in the application process (he had not
disclosed his dismissal from the prior residency), Dr. Fenje
was dismissed from the UIC program. Fenje responded with
this lawsuit against the program’s director, Dr. James Feld,
alleging that the termination of his residency violated his
due process and equal protection rights under the Four-
2 No. 04-1056
teenth Amendment to the United States Constitution. The
district court granted summary judgment to the defendant
and Fenje appeals. We affirm.
I. Background
Dr. Fenje is an Irish national who attended medical
school in Ireland. In August 1999 he commenced work
as a resident in emergency medicine at a hospital in
Scotland. A mere twelve days after this residency began,
Fenje was dismissed from the program because his at-
tending physician had “questioned his competency to
deliver patient care” and did not consider Dr. Fenje’s
practice of medicine to be commensurate with the program’s
requirements. Dr. Fenje promptly initiated litigation in
Scotland, alleging breach of contract on the part of the
hospital.
In June 2000 Dr. Fenje applied for admission to the
anesthesiology residency program at UIC. Nowhere in the
materials submitted as part of his application did Dr. Fenje
mention his past association with the Scottish hospital, the
difficulties he had encountered there, or his ongoing
litigation against the hospital. Dr. Feld conducted a per-
sonal interview with Dr. Fenje and asked if there
was anything he should know about Dr. Fenje’s background,
including any work performed in previous train-
ing programs and whether Dr. Fenje had any “skeletons
in his closet.” Dr. Fenje responded that there was nothing
that Dr. Feld needed to know. A few days after the in-
terview, Dr. Fenje followed up with an e-mailed letter to Dr.
Feld confirming that “there are no skeletons of any kind in
any of my closets here.” Fenje’s letter went on to specifically
state that he did not smoke, drank alcohol
very infrequently, had never used illegal drugs, and had
never been arrested or charged with any crime more serious
than a single speeding ticket. Dr. Fenje was accepted into
No. 04-1056 3
the anesthesiology training program. A June 19, 2000,
letter from Dr. Feld confirmed his acceptance in writing and
indicated a start date of August 1, 2000.
On or about July 17, 2000, Dr. Fenje received and exe-
cuted a “Resident Agreement.” This document stated in part
that in the event the university were to dismiss Dr. Fenje
from the training program for cause, Fenje would receive
written notice; could request a hearing; the hearing would
be convened before “a committee”; Fenje and
a representative of the anesthesiology department would be
permitted to submit oral and written materials in support
of their respective cases (but no attorneys would be al-
lowed); and the committee would issue a written decision
that could be appealed to the Associate Dean of Graduate
Medical Education.
A few days after Dr. Fenje’s Resident Agreement was
executed, Dr. Feld received an anonymous telephone call
disclosing that Dr. Fenje had experienced “difficulties” at a
residency program in Scotland and suggesting that Dr. Feld
contact the director of the program for further information.
Dr. Feld followed up with calls to the director of the Scot-
tish residency program and Dr. Fenje’s supervising physi-
cian and was informed of the circumstances surrounding
Dr. Fenje’s termination. In a telephone conversation in late
July, Dr. Feld confronted Fenje with this information, and
Fenje was given the opportunity to respond and state his
position. Fenje characterized his difficulties in Scotland as
a clash of personalities between himself and the director of
the program, who, according to Fenje, had wrongfully
concluded that Fenje suffered from a “psychiatric obsessive
trait” and that his practice of medicine was “unsafe.” In a
follow-up letter to Dr. Feld dated August 1, 2000, Dr. Fenje
restated his view of the events culminating in his dismissal
from the Scottish training program, adding that “I had
never considered this incident any kind of a closet skeleton
and had thought of it as a personality clash of some
4 No. 04-1056
kind . . . .”
Dr. Feld consulted with other members of the anes-
thesiology department and obtained their approval to
terminate Fenje’s residency because of his dishonesty in the
application-and-interview process. Dr. Feld reasoned that
a doctor who has demonstrated a propensity to be less than
forthcoming concerning negative incidents in his work
history cannot be relied upon to communicate forthrightly
with supervising physicians on matters concerning patient
care. Dr. Feld called Fenje on August 4, 2000, and informed
him that he was terminated from the residency program.
Dr. Fenje was not provided with a written notice of termina-
tion at this time. In the two-month period following his
termination, Dr. Fenje wrote letters and e-mails to Dr. Feld
and Dr. Ronald Albrecht, the director of the anesthesiology
department, asking that the decision be reconsidered and
that Drs. Feld and Albrecht undertake a broader inquiry
before making a final decision. The decision was final,
however, and no “broader inquiry” was undertaken.
For reasons not made clear in the record, the UIC College
of Medicine did not provide Dr. Fenje with formal written
notice of his termination from the residency program until
more than two years after he was orally notified of the
decision by Dr. Feld. In the written notice signed by Dr.
Albrecht, Dr. Fenje was once again informed that he had
been dismissed from the program due to his lack of candor
in the application process, and that in the opinion of the
anesthesiology department, this shortcoming rendered him
unsuitable for residency training at UIC. The notice also
informed Dr. Fenje that he could request a hearing pursu-
ant to the terms of the Resident Agreement. Dr. Fenje
requested a hearing in a timely manner, and one was
convened on March 3, 2003, before a three-member commit-
tee comprised of physicians in the UIC anesthesiology
department. Evidence and argument were submitted by
Drs. Fenje and Feld without the participation of attorneys,
No. 04-1056 5
and the committee thereafter voted unanimously to uphold
the termination on the grounds of lack of candor in the
application process. The Vice Dean of the College of Medi-
cine upheld the decision on Dr. Fenje’s appeal.
Dr. Fenje filed this action pursuant to 42 U.S.C. § 1983,
alleging due process and equal protection violations.
Specifically, the complaint alleged that Dr. Fenje was
denied due process of law because there was no pre-
termination hearing, his posttermination hearing was
unjustifiably delayed, his Resident Agreement was flawed
for failing to prescribe a time frame following termina-
tion within which a posttermination hearing was re-
quired, and his dismissal wrongfully imposed a stigma upon
him that foreclosed other educational and/or vocational
opportunities. The complaint also alleged a violation of Dr.
Fenje’s right to equal protection on the ground that his
termination was undertaken solely by virtue of Dr. Feld’s
personal animus toward him.1
The district court dismissed the case on Dr. Feld’s motion
for summary judgment, holding that Fenje was only
entitled to notice of the grounds for the termination decision
and an opportunity to respond, and that Fenje had been
afforded at least this much process. Fenje v. Feld, 781 F.
Supp. 2d 781, 802 (N.D. Ill. 2003). As to the delay in
convening the hearing, the court held that no
posttermination hearing was constitutionally required,
and so the delay could not constitute a due process vio-
lation. Id. at 803-04. In the alternative, the court held
that Fenje was not prejudiced by the delay, and that the
delay could not be attributable to Dr. Feld in any event. Id.
at 805. The court dismissed Fenje’s claims of “stigmatiza-
1
The complaint also alleged a state law claim for tortious inter-
ference with contract that was dismissed by the district court. Dr.
Fenje has not appealed the dismissal of the state law claim.
6 No. 04-1056
tion” because the stated reason for his dismissal was
not false, and he was therefore not defamed by the defen-
dant’s actions. Id. at 806. Fenje’s equal protection claim was
dismissed because there was no evidence that Dr. Feld
had acted out of vindictiveness or other malevolent animus.
Id. at 807.
II. Discussion
A. Procedural Due Process
On appeal, Dr. Fenje reasserts his argument that his
right to due process was violated because he received no
pretermination hearing, his posttermination hearing
was unreasonably delayed, and the Resident Agreement did
not contain a provision that required his posttermination
hearing to be held within a reasonable time after termina-
tion. A plaintiff asserting the inadequacy of procedural
safeguards must first establish that the defendant’s actions
deprived him of either a liberty or a property interest
recognized by law. Bd. of Regents v. Roth, 408 U.S. 564, 569
(1972). The district court concluded that Dr. Fenje pos-
sessed a property interest in his continued participation in
the residency program, and this conclusion has not been
challenged on appeal. We therefore assume for purposes of
this appeal that Dr. Fenje’s dismissal deprived him of either
a liberty or property interest. We conclude that summary
judgment was properly granted because Fenje was provided
with at least as much process—more, actually—as was
required by the Fourteenth Amendment.
In Board of Curators of the University of Missouri v.
Horowitz, 435 U.S. 78 (1978), the Supreme Court considered
the quantum of due process owed by a state-run university
to a dismissed medical student. The Court distinguished
between dismissals from educational institutions on the
basis of an “academic” rationale and those that may
properly be characterized as “disciplinary.” Id. at 89-90. The
No. 04-1056 7
Court held that the dismissal of the medical student in
Horowitz was “academic” rather than “disciplinary” because
it “rested on the academic judgment of school officials that
she did not have the necessary clinical ability to perform
adequately as a medical doctor[.]” Id. at 89-90. The Court
further noted that an academic dismissal is one that
involves “a school’s determination of whether a student will
make a good doctor,” and the school’s consideration of a
student’s personal attributes—in Horowitz they were
hygiene and the ability to keep to a clinical schedule—may
permissibly factor into this “academic” decision. Id. at 91
n.6. More broadly, the Court characterized an academic
dismissal as one being “more subjective and evaluative”
than the “typical factual questions presented in the average
disciplinary decision.” Id. at 90. Academic dismissals,
requiring as they do the “expert evaluation . . . [and]
historic judgment of educators,” bear “little resemblance
to . . . judicial and administrative fact-finding proceedings.”
Id. at 89-90.
Disciplinary dismissals, by contrast, are those involv-
ing “the violation by a student of valid rules of conduct” or
“disruptive and insubordinate behavior.” Id. at 86, 90.
Disciplinary dismissals, being more objective in nature
and not dependent upon the analytical expertise of pro-
fessional academicians, will bear a “resemblance to tradi-
tional judicial and administrative factfinding[.]” Id. at 88-
89.
We have no difficulty concluding that Dr. Fenje’s dis-
missal falls within the ambit of an academic dismissal. It is
undisputed that prior to his acceptance by UIC, Dr. Fenje
failed to disclose his participation in the Scottish residency
program, much less his abrupt and unceremonious dis-
missal from the program and his subsequent lawsuit
against the hospital. His omission of this information in his
application and interview arose in circumstances in which
disclosure was clearly called for; Fenje was specifically
8 No. 04-1056
asked to disclose anything in his background that might
have a bearing on his candidacy for the UIC residency
program—including any “skeletons in the closet”—and
assured Dr. Feld that there were “no skeletons of any kind
in any of my closets.” Dr. Feld and his fellow anesthesiology
faculty members interpreted Fenje’s dishonesty in the
application process as undermining his future credibility as
a source of information concerning the care of seriously ill
patients. As explained by Dr. Feld in his oral testimony at
the termination hearing:
For most [residents], we can teach them the clinical
skills as well as knowledge to become a good anesthesi-
ologist. What we cannot teach is a sense of honesty,
being up front, fair play and communicating well. These
are traits well established and ones that we insist upon
in our incoming residents. We are constantly placed in
life and death situations. I don’t expect a resident to
know everything, but at least to be honest about the
situation, clinical data and outcome. Any sense of
coverup or not relaying all the information to me may
endanger patient lives. In Fenje’s case, his total disre-
gard to tell me about his dismissal at Arie Hospital in
his application, his CV or when point blank asked about
previous problems made him unfit to fulfill the role of
an anesthesia resident in our program. (Emphasis
added).
The nexus between Dr. Fenje’s lack of candor in the
application process and his capacity to be trusted with
patient care clearly pushes this decision into the realm
of an academic dismissal. Dr. Feld made a professional
judgment that a doctor-in-training who has demonstrated
a willingness to withhold damaging information when it
serves his purposes cannot be fully trusted to convey
all information crucial to the health of the patients commit-
ted to his care. As in Horowitz, this represents an academic
judgment by school officials, expert in the subjective
No. 04-1056 9
evaluation of medical doctors, that Dr. Fenje did not possess
the attributes necessary to adequately perform his clinical
duties as an anesthesiology resident.
Dr. Fenje argues that his termination was disciplinary,
not academic, on the strength of the District Court of Utah’s
holding in Roach v. University of Utah, 968 F. Supp. 1446(D. Utah 1997). In that case, the court found a graduate
student’s dismissal from a master’s degree program to be
disciplinary where the dismissal was based upon the
university’s conclusion that the student had provided
misleading information on his admission forms. Id. at 1453.
However, in Roach, unlike the present case, there was no
academic justification for the dismissal whatsoever. The
student in Roach received a letter from the school informing
him that his admission to the graduate program had been
rescinded, effective immediately, on the sole basis that he
had provided inaccurate information on his admission form.
The school did not provide any further explanation or
justification for the student’s dismissal, and the court
explicitly grounded its finding of a disciplinary dismissal on
the fact that “there is no evidence that . . . inability to
perform the work required by [the graduate program] . . . or
any failings whatsoever of an academic nature influenced
[the school’s] decision to suspend Roach.” Id. As discussed
above, Dr. Fenje’s lack of candor was explicitly linked to his
ability to adequately perform the duties of a resident. Roach
consequently does not support Dr. Fenje’s position.
Our holding that Dr. Fenje’s dismissal was “academic” is
consistent with this court’s decision in Martin v. Helstad,
699 F.2d 387 (7th Cir. 1983), in which a student’s accep-
tance to law school was revoked on the grounds that he had
failed to disclose information in his application relating to
past criminal history. Our opinion in Martin did not delve
into the school’s rationale for revoking the plaintiff’s
acceptance other than to note that it was accomplished “on
10 No. 04-1056
the grounds that the appellant’s application had failed to
disclose his federal conviction[.]” Id. at 391.2 However, in
the course of discussing Horowitz’s distinction between
academic and disciplinary dismissals, we commented on a
scenario in which such a dismissal would fall into the realm
of the academic:
To the extent that the Law School’s reconsideration
of the appellant’s acceptance to the Law School repre-
sented a reconsideration of his suitability as a law
student and potential lawyer, then the revocation of
his acceptance can be analogized more closely to an
academic than it can be to a disciplinary dismissal.
Id. at 391 (emphasis added).
Thus, the ingredient missing in Roach and only lurking
around the edges of Martin is squarely and fully presented
in this case—Dr. Fenje’s dismissal was based upon the
academic judgment of school officials that he was ill-
equipped to perform the work required of an anesthesiology
resident. His dismissal was therefore academic in nature.
In the case of academic dismissals, procedural due process
does not require any form of hearing before a decision-
making body, either before or after the termination decision
is made. Martin, 699 F.2d at 391; Horowitz, 435 U.S. at 87-
91. In an academic dismissal it is sufficient that the student
was informed of the nature of the faculty’s dissatisfaction
2
Martin was an appeal from the district court’s denial of a pre-
liminary injunction, and our review was consequently confined to
the question of whether the lower court had abused its discretion
in reaching its injunction decision. Martin, 699 F.2d at 389. Given
this lesser standard of review, we did not find it necessary to
definitively determine whether Martin’s dismissal was academic
or disciplinary, and went no further, for purposes of abuse of
discretion analysis, than finding that the law school’s action was
“colorably an academic dismissal.” Id. at 391.
No. 04-1056 11
and that the ultimate decision to dismiss was “careful and
deliberate.” Horowitz, 435 U.S. at 85.
Here, Dr. Fenje plainly received a greater degree of
procedural due process than required under the circum-
stances. He was fully informed of Dr. Feld’s concerns
and provided an opportunity to give his side of the story
in an effort to dissuade Dr. Feld from dismissing him
from the program. Dr. Fenje took advantage of this op-
portunity both orally and in writing. Dr. Feld reached a
“careful and deliberate” decision that Fenje was not suited
for anesthesiology residency training at UIC because of
his lack of candor. Although a posttermination hearing was
not constitutionally required, Dr. Fenje ultimately received
a full-blown posttermination hearing before an academic
committee and a subsequent administrative appeal. Dr.
Fenje cannot complain that a hearing to which he had no
entitlement was not convened in a timely manner, or that
his contract should have required that a hearing be held
within a specified time frame. The district court properly
granted Dr. Feld’s summary judgment motion on this claim.
B. Liberty Interest in the Pursuit of Occupation
Dr. Fenje argues that the district court erred in dismiss-
ing his claim that Dr. Feld violated his liberty interest in
being free from a stigmatizing dismissal without due
process of law. The precise legal framework under which
Fenje brings this claim is not entirely clear from his
scanty briefing and argument on this issue. It is true that
“state employees have a liberty interest in not being
discharged from their employment while being defamed
such that they cannot get other government employment.”
Strasburger v. Bd. of Educ., 143 F.3d 351, 356 (7th Cir.
1998). This court has also held that “when a state actor
attacks a person’s good name in a manner that makes
12 No. 04-1056
it ‘virtually impossible’ for the person to find new em-
ployment, that person’s liberty interest to pursue his
occupation is infringed.” Beischel v. Stone Bank Sch. Dist.,
362 F.3d 430, 439 (7th Cir. 2004). In yet another formula-
tion, we have stated that “if the character and circum-
stances of a public employer’s . . . conduct or statements are
such to have destroyed an employee’s freedom to
take advantage of other employment opportunities, the
employee can bring suit based upon the deprivation of
his freedom to pursue the occupation of his choice.” Hedrich
v. Bd. of Regents, 274 F.3d 1174, 1183 (7th Cir. 2001).
Dr. Fenje’s claim fails for numerous reasons, but it is
sufficient for our purposes to note that a claim alleging
the abridgement of a liberty interest in being free from
a “stigmatizing dismissal” at the hands of a public employer
requires, as a necessary element of the constitutional tort,
that a public official made false, defamatory statements of
fact about the plaintiff and the reasons for his termination.
Strasburger, 143 F.3d at 356; Hedrich, 274 F.3d at 1184;
Beischel, 362 F.3d at 439. The district court recognized this
required element and granted summary judgment because
the record contains no facts supporting it. Dr. Fenje does
not address this deficiency in his appellate brief and makes
no attempt to explain exactly when, where, or to whom Dr.
Feld made false factual statements concerning Dr. Fenje’s
dismissal from the UIC program. If Dr. Feld could be said
to have publicized the reasons underlying Dr. Fenje’s
dismissal at all (Fenje does not identify facts to show that
this occurred), Dr. Feld’s reasons were demonstrably and
indisputably true: Dr. Fenje was not forthcoming about his
dismissal from the residency at the Scottish hospital. The
district court properly granted summary judgment to the
defendant on this claim.
No. 04-1056 13
C. Equal Protection Claim
Dr. Fenje also alleged that his right to equal protection
was violated because his termination was accomplished
solely by virtue of Dr. Feld’s “ill will, animus . . . retribution
or spite” toward him. This is an attempt to bring this case
within the holding of Esmail v. Macrane, 53 F.3d 176 (7th
Cir. 1995), in which we stated that an “orchestrated
campaign of official harassment directed against [the
plaintiff] out of sheer malice,” “vindictiveness,” or “malig-
nant animosity” would state a claim for relief under the
Equal Protection Clause. See also Nevel v. Vill. of
Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002); Hilton v.
City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000) (so-
called “vindictive action” equal protection cases require
proof of “a totally illegitimate animus toward the plaintiff
by the defendant.”) The district court held that the record
was barren of any evidence from which an inference of
vindictiveness or ill will could be derived.
On appeal, Dr. Fenje suggests that Dr. Feld’s decision
to terminate him based upon a lack of candor in and of itself
is proof that the dismissal was the by-product of personal
animosity on the part of Dr. Feld. Although Dr. Fenje does
not say it in so many words, he must be arguing that Dr.
Feld was so personally offended upon his discovery of Dr.
Fenje’s duplicity that Dr. Feld engaged in a scheme to
retaliate against Dr. Fenje by securing his dismissal from
the residency program. The district court was correct that
there is not a shred of evidence in the record to support a
pejorative characterization of Dr. Feld’s motivation. As we
have noted, Dr. Feld’s decision was reached after consulta-
tion with his peers in the anesthesiology department and
was based upon a legitimate academic concern for Dr.
Fenje’s prospective ability to be entrusted with the care of
patients. There is no evidence of spite or malignant animos-
ity. Summary judgment dismissing this claim was appropri-
ate.
14 No. 04-1056
D. Discovery and Evidentiary Issues
Dr. Fenje has raised a host of objections to discovery
and evidentiary decisions by the district court. We need not
address these issues. The salient facts are few and undis-
puted: (1) Dr. Fenje was asked at his interview to describe
his past work experience and to disclose any “skeletons in
his closet”; (2) Dr. Fenje omitted any reference to his
dismissal from the residency program in Scotland in
response to the interview questioning; (3) upon discovery of
the withheld information, Dr. Fenje had an opportunity to
explain why he did not disclose his prior work history and
why his nondisclosure should not affect his association with
UIC; and (4) Dr. Feld and his colleagues in the anesthesiol-
ogy department reached a professional academic judgment
that Dr. Fenje’s dishonesty rendered him unfit for future
training at UIC.
We have concluded that summary judgment was properly
granted based upon the foregoing undisputed facts; Dr.
Fenje’s discovery and evidentiary arguments are therefore
superfluous. Fenje challenges the district court’s order
denying access to UIC’s files on other residency applicants;
the contents of other residents’ files have no bearing on our
evaluation of what process Dr. Fenje was due or whether
Dr. Feld made any false statements about Fenje’s termina-
tion or harbored any personal animosity toward him. Fenje
also contends that a variety of documents relied upon by the
district court lacked proper authentication; none of these
are essential to our decision and summary judgment would
have been proper even if the content of these documents
had been disregarded. This is not to say that the district
court erred in any respect in its extremely thorough and
painstaking rejection of Dr. Fenje’s evidentiary objections
in the ten-page appendix to its published opinion. See Fenje,
301 F. Supp. 2d at 809-19. Rather, we conclude only that we
need not undertake review of these aspects of the district
court’s decision in light of our decision on the merits of the
No. 04-1056 15
summary judgment.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-15-05