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Date: 07-25-2022

Case Style:

Dr. Larry Cunningham v. David W. Blackwell, et al.

Case Number: 21-6005/6174

Judge: Sutton

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Eastern District of Kentucky (Urban County)

Plaintiff's Attorney:





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Defendant's Attorney: Bryan H. Beauman, Donald C. Morgan, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, William E. Thro, UNIVERSITY OF KENTUCKY, Lexington, Kentucky, for Defendants.

Description: Lexington, Kentucky civil rights lawyers represented Plaintiff, who sued Defendants on a 1983 civil rights violation theory.

The University of Kentucky investigated two dentistry
professors for entering false data about whether they, or their students, had performed services
for patients at a university clinic and whether they, or the clinic, should be paid for those
services. While the investigation proceeded, the provost barred the professors from seeing
patients in the clinic but allowed them to perform their other duties. After the investigation
ended, both professors left the University. The professors sued, alleging the University violated
their rights to due process under the Fourteenth Amendment and retaliated against them in
violation of their rights to free speech under the First Amendment. Because the administrators
did not violate clearly established law, qualified immunity protects them from each claim.

I.

Doctor Larry Cunningham and Doctor Ehab Shehata worked at the University of
Kentucky’s College of Dentistry. Cunningham began teaching at the College in 2001, and he
had tenure. Shehata began teaching at the College in 2013, and he did not have tenure. Both
professors worked at the College’s clinic for oral and maxillofacial surgery.

On top of their salaries as professors, Cunningham and Shehata received pay for their
clinical work. If one of them cared for a patient, the clinic designated him as the treating
provider, and he would receive 40% of the collectible income. If a dental resident or hygienist
provided care, he or she was the treating provider. In that case, the College kept all of the
money. In 2018, Cunningham received roughly $176,100 in salary and $203,900 for clinical
work. That same year, Shehata earned roughly $132,000 in salary and $199,400 in clinical
income.

In 2017, Stephanos Kyrkanides, the Dean of the College, changed how the billing office
determined who served as the treating provider. The new system labeled the author of the
patient notes in the medical records as the treating provider. This created a problem for
Cunningham and Shehata, who regularly allowed student residents to draft the notes. Without
seeking permission from the administration, they circumvented the new system by copying
patient notes that the residents drafted, pasted them under their own names, and deleted the
original records. That way, the system would show that Cunningham or Shehata served as the
treating provider, and they would receive their 40% share. Cunningham used this workaround
24 times, Shehata 110 times. No other professors did this, and only a later audit of the records
revealed what had happened.

In their defense, the professors say that they acted as the treating providers in each case,
and merely allowed the residents to draft the notes to give them a chance to practice their
documentation skills. Because the professors provided the care, they claim, any manipulation of
the records did not make them inaccurate.

Right or wrong, the compliance office saw things differently. They learned of the
practice in February 2018. Software logs confirmed it. Brett Short, the University’s Chief
Compliance Officer, grew concerned that Cunningham and Shehata manipulated the data for
profit and exposed the University to potential liability by faking medical records and falsely
reporting who had done the work and who should be paid for it. He told them to stop
“immediately.” CR.62-10 at 23. Short’s office investigated and retained an accounting firm to
audit the records. After the February meeting, the professors stopped copying and pasting the
notes and started writing the notes themselves.

In October 2018, Short briefly met with Cunningham and Shehata to inform them he was
almost done with his investigation and asked if they had any more information to provide. Short
emailed each of them the next day to offer an opportunity to respond to the investigation “in
writing.” CR.92-22 at 2; SR.107-22 at 1. Neither professor responded to the substance of the
allegations.

On January 16, 2019, Provost David Blackwell removed Kyrkanides, and Doctor Larry
Holloway stepped in as Interim Dean.

The next day, Blackwell and Short met with Cunningham to tell him that the University
would start dismissal proceedings unless he resigned. Cunningham asked if he could wait until
June. Blackwell told Cunningham that he could remain there until June but that he could not see
clinic patients in the interim.

Shehata’s meeting followed. Blackwell asked Shehata several questions and gave him a
chance to explain his position. While Blackwell entered the meeting with the expectation of
firing Shehata, he hesitated after hearing Shehata’s side of the story, especially after it “became
apparent” to him that Shehata “may have been influenced toward the deleting, cutting, and
pasting by” Cunningham. CR.62-2 at 51. Blackwell told Shehata not to work in the clinic until
the investigation finished.

While the suspensions prevented the professors from earning clinic income, they still
received their base salaries. Cunningham retained his other academic, research, and
administrative obligations, and Shehata published research papers, met with students, and
administered exams.

Within a few weeks of his meeting with Blackwell, Cunningham wrote to the
University’s General Counsel, William Thro, explaining why he revised the records. In March
2019, the parties met and unsuccessfully attempted to resolve the situation. Blackwell initiated
dismissal proceedings against Cunningham in May. Cunningham resigned on June 7. In July, he
began a new position as the chair of oral and maxillofacial surgery and associate dean of hospital
affairs at the School of Dental Medicine at the University of Pittsburgh.

Shehata, meanwhile, sent a letter to Blackwell explaining his actions. In June, Shehata
and Blackwell met again, along with Holloway. After the meeting, Blackwell renewed Shehata’s
teaching contract but continued to prevent him from doing clinical work. Holloway signed
Shehata’s contract on July 2, 2019.

After Shehata and the College agreed to the new contract, Thro offered to allow him to
resume clinical duties if he satisfied certain terms. Foremost among the terms, Thro required
that Shehata admit that he “intentionally altered patient notes which resulted in false
documentation being submitted to third-party payors.” SR.1-2 at 55. Shehata refused. In
September 2019, Thro informed him that his employment would end nine months later on June
30, 2020. One week after leaving the University, Shehata began working as an assistant
professor and predoctoral program director at the School of Dentistry at the University of
Maryland at Baltimore.

Shehata and Cunningham sued the University and various administrators, including
Blackwell, Holloway, and Thro. Each raised a slew of federal and state law claims, including
due process claims under the Fourteenth Amendment and retaliation claims under the First and
Fourteenth Amendments.

The parties filed cross-motions for summary judgment. The district court, as an initial
matter, allowed the professors’ state law claims for breach of contract and wage-and-hour
violations to proceed as well as a defamation claim by Cunningham against Blackwell. See Ky.
Rev. Stat. §§ 45A.245, 337. Those claims are not at issue in this appeal.

The district court separately permitted the professors’ due process claims regarding the
suspension of their clinical duties to proceed, finding genuine issues of material fact and denying
qualified immunity to Blackwell, Holloway, and Thro. It rejected as a matter of law three other
federal claims: a due process claim by Shehata about the timing of his departure, a free speech
claim by Cunningham that administrators retaliated against him for giving testimony in another
case against the dean, and a free speech claim by Shehata that the administrators did not renew
his contract because he refused to sign the sworn statement.

Outcome:
For these reasons, we reverse the district court’s decision denying summary judgment to the administrators on the professors’ due process claims involving the suspension of their clinical duties and Cunningham’s constructive discharge. We affirm the district court’s decision granting summary judgment to the administrators on Shehata’s due process claim involving the early end to his appointment. We affirm the district court’s decision granting summary judgment
to the administrators on the professors’ First Amendment retaliation claims.

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Defendant's Experts:

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