     Case: 12-50808       Document: 00512198774         Page: 1     Date Filed: 04/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 5, 2013
                                     No. 12-50808
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




RODERICK DAVID EKMARK, M.D.,

                                                  Plaintiff–Appellant,

versus

DOCTOR KENNETH MATTHEWS, In His Official and Individual Capacity;
DOCTOR LOIS BREADY, In Her Official and Individual Capacity,

                                                  Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-465




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Roderick Ekmark appeals a summary judgment, claiming that Doctors


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-50808

Kenneth Matthews and Lois Bready violated his Fourteenth Amendment due-
process rights by denying him a formal grievance hearing before refusing to
grant him a certification in psychiatry. We affirm.
      Ekmark is a former psychiatry resident at the University of Texas Health
Science Center at San Antonio (“UTHSC”). Matthews was the program director
for the Psychiatric Residency Program, and Bready oversaw UTHSC’s Graduate
Medical Education program. The psychiatry program requirements included
providing clinical care at the University Hospital and local Veterans Affairs
(“VA”) facilities.
      About September 2008, during Ekmark’s fourth and final year of the pro-
gram, an acquaintance and UTHSC employee told Bready that Ekmark had
admitted to an inappropriate relationship with a VA hospital patient. As a
result, UTHSC suspended Ekmark’s patient-care duties pending an investiga-
tion and offered him at least two opportunities to present his account of the situ-
ation, but he continued to deny the allegations. UTHSC notified the Texas Medi-
cal Board of the suspension, causing the Board to suspend Ekmark’s physician-
in-training permit.
      The VA was notified and began an investigation, during which UTHSC
placed the matter on hold. About November, the VA’s Administrative Investiga-
tion Board sent UTHSC a summary of its conclusion that the allegations were
more likely true than not and that, as a result, the VA had revoked Ekmark’s
privileges at all VA facilities. Ekmark informed UTHSC that he would appeal
the VA’s determination; in the meantime, UTHSC maintained the suspension.
      Although on clinical suspension, Ekmark was paid through the end of the
fourth-year contract. Because, however, he could not complete his clinical
duties, including his rotations at the VA, he did not receive the psychiatry certi-




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                                       No. 12-50808

fication.1 It is undisputed that he requested a formal grievance hearing but
never received one.
      Ekmark sued Matthews and Bready, alleging a deprivation of due process
and seeking damages and other relief. The district court granted summary judg-
ment, finding that Ekmark had no protected property interest in his certification
or ongoing education and was not entitled, under the Fourteenth Amendment,
to a formal grievance hearing. The court continued that, even assuming argu-
endo a property interest in continuing his residency, Ekmark had received the
required due-process protections.
      We review de novo a summary judgment, affirming on any basis supported
by the record, even if different from the district court’s reasoning. Reed v. Neo-
post USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is appro-
priate where 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).
      “The Fourteenth Amendment’s procedural protection of property is a safe-
guard of the security of interests that a person has already acquired in specific
benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576 (1972). Even
assuming arguendo Ekmark had any property interest in continuing his resi-
dency and achieving certification, he received all the process to which he was
entitled under the Fourteenth Amendment. See Davis v. Mann, 882 F.2d 967,
973 (5th Cir. 1989).
      In the context of due process, medical residents are students rather than
employees of the hospital. Shaboon v. Duncan, 252 F.3d 722, 729 (5th Cir.
2001). “It is well-known that the primary purpose of a residency program is not
employment or a stipend, but the academic training and the academic certifica-
tion for successful completion of the program.” Davis, 882 F.2d at 974. In rec-


      1
          In 2011, the Texas Medical Board allowed Ekmark to obtain a Texas medical license.

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                                  No. 12-50808

ognition of the complex student-faculty relationship, students are not entitled
to the same due process protections as are employees. Shaboon, 252 F.3d at 730.
      We further distinguish between the process required for students facing
discipline and academic actions that require “far less stringent procedural
requirements.” Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 86
(1978); see also Davis, 882 F.2d at 974. Educational institutions “should not be
weighted down with formalized procedural requirements imposed by actors
estranged from the academic environment.” Davis, 882 F.2d at 974. The physi-
cians and administrators directing residency programs are in the best position
to determine which candidates are suited to progress through the program and
have satisfactorily completed the requirements for certification. Id. Adverse
academic actions against medical residents require only the minimum procedure
of notice and not a hearing. Horowitz, 435 U.S. at 90; see also Shaboon, 252 F.3d
at 731.
      Bready and Matthew’s determination that Ekmark was unable to fulfill
the clinical residency requirements, and was thus unqualified for certification,
was academic in nature. Despite that the underlying disciplinary actions by the
VA affected Ekmark’s capacity to meet the certification prerequisites, his inabil-
ity to complete the program “furnished a sound academic basis for [the denial of
certification].” Shaboon, 252 F.3d at 731.
      Viewing the facts in the light most favorable to Ekmark, he received suffi-
cient process. Matthews notified Ekmark of his suspension and of the hospital’s
determination that he would not be able to complete the program if his
physician-in-training permit was not renewed. Contrary to Ekmark’s claims, he
was not entitled to a formal hearing. Id. Furthermore, even if a formal hearing
was required by UTHSC policy, the UTHSC rules do not establish the constitu-
tional floor of due process. Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1230
(5th Cir. 1985).

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                          No. 12-50808

 The summary judgment is AFFIRMED.




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