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Weil v. White

United States District Court, M.D. Pennsylvania

October 24, 2014

STEPHEN WEIL, Plaintiff,

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[Copyrighted Material Omitted]

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Stephen Weil, Plaintiff, Pro se.

For Dr. David L. White, Defendant: Michael L. Harvey, Office of Attorney General, Harrisburg, PA.

For Walt Eisenhauer, Anna Mae Smith, John Leffert, Dr. Michael Greenberg, Dr. Deborah Erickson, Lane Bower, Mary Rose-Colley, Defendants: Michael L. Harvey, LEAD ATTORNEY, Office of Attorney General, Harrisburg, PA.

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Matthew W. Brann, United States District Judge.

Before the Court is the Defendants' Motion for Summary Judgment (ECF No. 52) on Plaintiff's Amended Complaint (ECF No. 2). Plaintiff, a former Physician Assistant Program student at Lock Haven University, filed this civil rights action alleging unconstitutional retaliation for his lawful exercise of free speech rights protected by the First Amendment to the United States Constitution. For the reasons that follow, the Defendants' Motion is granted and the Plaintiff's claims are dismissed.

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The following laborious narrative presents the relevant facts and background information for this summary judgment determination.

Plaintiff Stephen Weil (" Plaintiff" or " Weil" ) is a former Physician Assistant (PA) Program student at Lock Haven University (" LHU" ), an institution in the Pennsylvania State System of Higher Education. Defs.' Stat. Facts, ¶ 1, Nov. 19, 2013, ECF No. 54 [hereinafter Defs.' SOF]. The PA program is typically twenty-four (24) months in duration and leads to a Masters of Health Science Degree and a certificate as a Physician Assistant. Id., ¶ 11. The first year of the PA Program is devoted to classroom instruction (the didactic year); the second year is divided into five six-week clinical rotations, followed by an eighteen-week period of clinical training work in physician-supervised practices known as a preceptorship. Id., ¶ 12.

Weil's first unconventional contact with Lock Haven University officials occurred in April 2009, when members of the faculty asked Weil to attend a meeting because they had some concerns about him. Id., ¶ 16. The faculty presented Weil with a document, known as a behavioral contract, which detailed the faculty members' concern with his conduct. The concerns included allegations that he was frequently late for class, had been absent without permission, demonstrated a lack of sensitivity toward team members when working in a group, and behaved unprofessionally by repeatedly confronting faculty members. Id., ¶ ¶ 17, 18. Weil acknowledged that he understood that " continued violations of PA Program policies and procedures will result in disciplinary action including the possibility of grade reduction, suspension from the program and/or dismissal." Id., ¶ 19. While both the faculty and Weil signed the contract, Weil disputed the accuracy of some of the factual allegations and wrote a rebuttal. Id., ¶ ¶ 19-20.

Weil began his series of five clinical rotations in May 2009. Id., ¶ 22. During his fourth rotation, on October 17, 2009, Weil and his wife were in an automobile accident in which he sustained injuries. Id., ¶ 123. Weil was able to complete his fourth rotation, but had difficulty during his fifth rotation and was granted medical leave. Id., ¶ ¶ 23, 25. According to PA Program policy, extended absences for any reason may require additional didactic and/or clinical assignments, repetition of a course, extension of the length of the program, postponement of graduation, or termination from the program, all at the discretion of the program director. Id., ¶ 26. Because of the time Weil missed from the PA program, the faculty required that he complete and pass a written exam and conduct a physical examination, which he successfully completed. Id., ¶ 27.

When Weil returned from the leave of absence, he did not resume his fifth clinical rotation, but started the first nine week segment of his eighteen-week preceptorship. Id., ¶ 28. The course was scheduled to begin in January 2010, but Weil instead began in March 2010 due to his medical complications. Id., ¶ ¶ 28-29. Weil planned to complete the second nine-week segment of the preceptorship over the summer, necessitating the entry of a grade of Incomplete (" I" ) on his transcript at the conclusion of the Spring Semester 2010, which would be changed to the appropriate letter grade upon completion of the preceptorship in August 2010. Id., ¶ 30. A student who receives an Incomplete for a course must complete the requirements or outstanding work for that course by the middle of the following semester, or the Incomplete automatically becomes an " E"

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unless an extension is arranged. Id., ¶ 31. In June 2010, at the prompting of LHU's registrar, Defendant John Leffert, a member of the PA Program faculty and Weil's clinical adviser, changed the Incomplete grade to a " C" as a placeholder to prevent Weil from losing his financial aid until the actual grade was entered after Weil completed the rotation. Id., ¶ ¶ 333-35.

On June 21, 2010, Weil began his second and final nine-week clinical rotation for the preceptorship at Clinton Medical Associates (CMA), a private primary care medical group situate in Clinton County, Pennsylvania. Id., ¶ 36. Weil was assigned Defendant Michael Greenberg, M.D., as preceptor. Id. Greenberg is the president and CEO of Clinton Medical Associates, which is his primary occupation. Id., ¶ 2. Greenberg is also the medical director for LHU's PA Program, a position he has held since 1996 with duties that include: assisting the PA Program Director; providing medical guidance regarding the content of the curriculum; acting as a liaison with the medical community; and lecturing students in both the didactic and clinical components of the program. Id., ¶ 2.

Nadine McGraw is a Physician Assistant employed by CMA who also worked with Weil. Id., ¶ 37. Weil believed that both McGraw and Greenberg were upset about Weil's behavior during the first two weeks at CMA. The Parties differ in their conflicting explanations for this dispute. Greenberg and McGraw maintain that Weil engaged in a number of inappropriate acts including insubordinate behavior towards superiors, rudeness towards patients, and medical incompetence. Id., ¶ ¶ 38-40.

Weil claims that he was not surprised by McGraw and Greenberg's adverse reaction to his presence because, as he alleges, he observed medical and ethical irregularities occurring at CMA and began to voice his concerns with these practices. Specifically, Weil alleges that he observed fraudulent practices by McGraw and Greenberg, which included recording findings in patients' charts that did not exist in order to bill insurance companies for the corresponding tests. Pl.'s Stat. Facts ¶ 38, Jan. 6, 2014, ECF No. 63 [hereinafter Pl.'s SOF].

The discord surfaced on Wednesday of Weil's second week at CMA, June 30, 2010, when McGraw told Weil that she did not want him to accompany her to visit patients because she was concerned about his behavior and general incompetence. Defs.' SOF, ¶ 39. That same day, McGraw sent an email to Defendants Walter Eisenhauer,[1] Lane Bower,[2] Anna Mae Smith,[3] and Greenberg, informing them that Weil was no longer permitted to see patients with her and setting forth reasons for the decision, including: that he had been rude to McGraw, the nursing staff and patients; he had " diagnosed" patients with conditions and told them his diagnosis without checking with his preceptor, causing unnecessary stress and alarm; he questioned other providers' office notes and was judgmental

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of them; he frequently left early, came in late, and requested time off; he was generally unwilling to work and had a poor attitude that rendered him incapable of learning. Id., ¶ 40. Based on McGraw's complaints and refusal to work with him, Weil was suspended from the CMA rotation and told to report to Eisenhauer to discern the nature of the problems. Id., ¶ 41.

Weil spoke with Eisenhauer the following day and reported that he had ethical concerns with certain practices at CMA. He felt that he was singled out because of his knowledge of and opposition to those practices. Id., ¶ 43; Pl.'s SOF, ¶ 43. Following this meeting, on July 7, 2010, PA Program faculty members Bower, Harris and Leffert met with Weil at CMA to obtain information from McGraw about the problems she was having with Weil and to hear Weil's responses. Defs.' SOF, ¶ 45. This meeting was recorded and a transcript of the sound recording was produced which details both McGraw's and Weil's positions about Weil's behavior at CMA.[4] Id., ¶ ¶ 46-48.

During the first weeks of July 2010, Eisenhauer prepared a second behavioral contract for Weil, which provided that he would receive an " E" grade for the 18 credit practicum, and that his continuation in the PA Program was contingent on a number of factors including: an evaluation by the LHU Office of Academic Advising and Counseling and compliance with their recommendation; re-registering for the 18 credit practicum and completing the clinical experiences required for graduation; repeating all components of summative testing prior to graduation. Id., ¶ 58. The contract was debated among the faculty, and several members disagreed with some of its contents, namely the requirement that Weil repeat the entire 18-week preceptorship. Pl.'s SOF, ¶ ¶ 57, 63.

Eisenhauer presented Weil with this contract at a meeting with most of the department faculty on July 19, 2010.[5] Defs.' SOF, ¶ ¶ 59-60. Weil did not sign the contract and was advised that he could appeal the decision by the grade appeal process articulated in the PA Program handbook. Id., ¶ 64. When he asked the department faculty if he was still in the PA Program, they answered affirmatively. Id., ¶ 66.

On August 19, 2010, Bower wrote to Weil to inquire about his status because the department had not heard from him. Id., ¶ 69. Weil alleges that Bower provided Weil with erroneous appeal instructions in this letter. Pl.'s SOF, ¶ 69. On September 27, 2010, Leffert received a letter and application for graduation from Weil, who had not been in contact with PA Program faculty since the July 19 meeting. Defs.' SOF, ¶ 70-71. Leffert advised Weil by letter dated September 28, 2010 that his grade for the incomplete clinical preceptorship had been changed from C to E as planned, and that Leffert would no longer be Weil's advisor. Id., ¶ 74. The

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LHU registrar also did not approve Weil's application to graduate. Id., ¶ 75.

On December 12, 2010, Weil brought an appeal from his E grade, which he initially sent to Eisenhauer.[6] Eisenhauer advised Weil that the first step of the appeal should be sent to his academic adviser. Id., ¶ 78. Although Weil did not originally submit the appeal to Leffert because he stated that he was no longer his adviser, Leffert received the grade appeal from Weil on January 14, 2011. Id., ¶ 79; Pl.'s SOF, ¶ 78. Leffert denied the appeal on January 26, 2011, reasoning that the grade of E was not arbitrary or capricious because Weil had not attempted to complete the 18-week practicum course. Defs.' SOF, ¶ 80. Weil then appealed the grade to Eisenhauer, who denied the appeal because Weil had not complied with the requirements the PA Program faculty set for him to complete his degree. Id., ¶ ¶ 81-82.

On March 4, 2011, Weil appealed Eisenhauer's decision to Mary Rose-Colley, the interim dean for the College of Education and Human Services. Id., ¶ 83. Weil wrote that he had observed three instances of what he believed to be billing fraud at CMA. Id., ¶ 84. Rose-Colley conducted an investigation including reviewing Weil's letter and the documentation he supplied, the behavior contract, the audio recordings of the July 2010 meetings, and discussing the appeal and events surrounding the appeal with Anna Mae Smith and Weil. Id., ¶ ¶ 85-86. Rose-Colley did not believe Weil was a whistle-blower because he had not reported the allegations to Medicaid or Medicare authorities, but believed he was using the allegations as an excuse for his dismissal, and concluded that his grade should stand because Weil had completed only half the course. Id., ¶ ¶ 87-88.

Weil then appealed to Deborah Erickson, Provost and Vice-President of Academic Affairs, referring to the fact that he had reported billing irregularities in the CMA practice to PA Program faculty members. Id., ¶ 89. Upon reviewing the record, Erickson granted Weil's appeal and changed his grade from an E to an Incomplete on a temporary basis, allowing him to re-enroll with no tuition charged for the second half of the 18-week preceptorship. Id., ¶ 90.

Before returning to the preceptorship, Weil needed to complete both a comprehensive written exam and a physical examination skills evaluation, consistent with LHU PA Program policy. Id., ¶ 91. By letter dated July 27, 2011, Weil wrote to Erickson to inform her of his intention to return to the PA Program. David White, who succeeded Erickson as Provost and Vice-President of Academic Affairs, acknowledged the letter and confirmed the requirements necessary to Weil's returning to the program. Id., ¶ 93.

In August 2011, Weil informed Anne Mae Smith of his intention to return to the PA Program. In response, Smith informed Weil that his practical examination

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would be the head-to-toe physical examination that he had performed at the end of the didactic year and prior to restarting the program after his accident. Id., ¶ 97. Smith also informed Weil that the physical examination would be independently evaluated by three faculty members: one faculty member would observe the examination in person, and the other two would view a video of the examination. Id., ¶ 96. On August 30, 2011, in response to another email from Weil, Smith informed him that, during the physical examination, if he forgot to perform any central element of the examination (such as a vital signs check, or performing the abdominal exam out of order, etc.), that is grounds for immediate failure. Id., ¶ 99. Smith also provided Weil with the cover sheet for the examination that identified the allotted time period and grading criteria, which were standard for all students. Id., ¶ ¶ 100-01.

On September 15, 2011, Weil performed the practical examination, which was videotaped. Id., ¶ 103. After the three faculty members independently reviewed the examination (one with Weil, and two by videotape) and all three had determined that Weil had failed the exam, Smith informed Weil that he had failed the exam and set forth the reasons for his deficiencies. Defs.' SOF, ¶ ¶ 104-06. Smith advised Weil that he would be retested and if he did not meet the minimum standards for the exam, he would be dismissed from the program.[7] Id., ¶ 107. In response to a letter asking for clarification before taking the second exam, Smith informed Weil of the specific actions during the first exam that resulted in an automatic failure and outlined other actions or oversights that may result in an immediate failure, further emphasizing that the thirty-minute time limit was also a requirement. Id., ¶ 108.

Weil was retested on September 26, 2011. Id., ¶ 109. The same three faculty members graded this exam, which the Plaintiff alleges is in conflict with the PA Program Student Handbook's requirement that a different faculty be used in a second evaluation.[8] Pl.'s SOF, ¶ 109. Weil again failed this examination and was denied reentry into the PA Program. Defs.' SOF, ¶ 109. Michael A. Rackover, a professor and interim Program Director of the Physician Studies Program in the School of Science and Health of Philadelphia University, independently reviewed the video recordings of both Weil's September 15, 2011 and September 26, 2011 examinations.

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Id., ¶ 111-12. Rackover concluded that Weil failed both examinations.[9] Id., ¶ 112.

On or about October 4, 2011, Smith received correspondence from Weil asking about appeal options regarding his dismissal, and responded by informing Weil that he could file an appeal of his dismissal with Provost David White. Id., ¶ ¶ 113-14. Weil appealed his dismissal by a letter to White, dated February 7, 2012, again stating that he " reported several medical billing irregularities to Program faculty" concerning Greenberg and McGraw. Id., ¶ 115. By letter dated February 21, 2012, White denied Weil's appeal noting that Weil had not met the requirements for reentry into the PA Program and that White found nothing in the process or documents regarding his dismissal that warranted overturning the decision. Id., ¶ ¶ 116-17.

Subsequent to that determination, Weil filed the instant suit before this Court. Weil claims that the above captioned Defendants retaliated against Weil for engaging in speech protected by the First Amendment to the United States Constitution, a claim actionable against state actors through 42 ...

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