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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 18-11433
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:15-cv-01812-RDP



JOHN T. CARPENTER, JR.,

                                                            Plaintiff-Appellant,

                                 versus

THE UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION PC,
a domestic professional non-profit corporation,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                              (May 10, 2019)

Before JILL PRYOR, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Dr. John Carpenter, Jr., a physician who previously held a staff position with

the University of Alabama Health Services Foundation (“UAHSF”) and a tenured

faculty position at University of Alabama at Birmingham’s (“UAB”) School of

Medicine, brought a § 1983 claim against UAHSF, alleging a violation of his

property interest in continued employment in both positions when he was

wrongfully discharged without a pre-termination hearing. The district court

granted summary judgment to UAHSF, concluding that Carpenter failed to create a

genuine issue of material fact regarding whether he voluntarily resigned from his

position. We agree because, even viewing the evidence in the light most favorable

to Carpenter, his resignation was voluntary. He thus was not deprived of any

protected interest in his employment within the meaning of the Due Process

Clause. We affirm the district court.

                         I.     FACTUAL BACKGROUND

       Carpenter worked as a professor at the UAB School of Medicine for

approximately 40 years. For most of this time, he was a tenured faculty member.

Besides serving as a UAB faculty member, he practiced medicine as an employee

of UAHSF.1 He worked as an oncologist specializing in breast cancer.




       1
         UAHSF is a non-profit corporation through which all UAB medical care is provided.
UAB faculty members, like Carpenter, also have employment contracts with UAHSF to provide
health care services at UAB-affiliated hospitals and clinics.

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      This case arises out of Carpenter’s treatment of a patient with breast cancer.

Carpenter treated the patient with hormone therapy for approximately two years

before the patient began chemotherapy. According to Carpenter, he delayed

treating the patient with chemotherapy because she was depressed and did not want

to begin that treatment. While the patient continued on hormone therapy,

Carpenter also prescribed her an antidepressant drug. When the patient told

Carpenter she was ready, he had her begin chemotherapy.

      After the patient began chemotherapy, she was seen by Dr. Jennifer De Los

Santos, a UAB radiation oncologist. De Los Santos was concerned that Carpenter

had treated the patient with only hormone therapy for such a long period while her

breast cancer was progressing. De Los Santos reported Carpenter to UAHSF’s risk

management committee for inappropriate care of a patient. De Los Santos also

called Dr. Boris Pasche, Carpenter’s supervisor, with her concerns. De Los Santos

told Pasche that Carpenter’s treatment of the patient was “egregious,” “outside of

guideline[s], and “high risk.” Doc. 40-5 at 9. 2

      Pasche relayed De Los Santos’s concerns to Dr. Robert Bourge, the vice

chair of clinical affairs in UAB’s Department of Medicine. Bourge also discussed

Carpenter’s treatment of the patient with the risk management committee and with

Dr. Seth Landefeld, the chair of UAB’s Department of Medicine.

      2
          Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.

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      Later that day, Pasche’s secretary told Carpenter that once he finished seeing

patients, he needed to go see Pasche. Carpenter had no advance warning about the

purpose of the meeting. When Carpenter arrived to see Pasche, Pasche escorted

him to Landefeld’s office. Carpenter then met with Bourge, Pasche, and other

department administrative personnel. Pasche told Carpenter about De Los Santos’s

complaint. Pasche indicated that he had discussed the matter with the risk

management committee and determined that the patient had been treated too long

with preoperative treatment and that the case had not been managed according to

guidelines set forth in current medical research. Pasche said he had told the

committee that he thought Carpenter “had no clinical judgment, and that if

anybody came to see [Carpenter] on a given day, that . . . there was absolutely no

way to predict what advice [Carpenter] might give them.” Doc. 40-4 at 16. Pasche

then told Carpenter that the risk management committee had concluded that such a

doctor could not practice at UAB. Pasche told Carpenter that he would have to

resign. During the meeting, Carpenter had no opportunity to respond to the

accusations.

      After Pasche stated that Carpenter should resign, Bourge explained to

Carpenter that there was an alternative to resigning, which was that he could have a

hearing. Bourge provided no information about the procedures for the hearing, but

Carpenter understood that the hearing would review the appropriateness of the


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patient’s treatment. Bourge warned Carpenter that the outcome of the hearing

would be reported to the National Practitioner Database and that Bourge had

prevailed in every hearing in which he had participated.

      At the meeting, Carpenter was not asked to decide whether he would resign.

He also was not given a deadline when he had to make his decision. Carpenter was

told that his patients would be reassigned to other physicians, although he would

be permitted to complete his patient notes. Carpenter felt overwhelmed and

intimidated during the meeting.

      After the meeting ended, Pasche and Carpenter talked for a few more

minutes. Pasche told Carpenter that “he felt it would not be possible to get the

[risk management] committee to reconsider its decision” and that it would not be

possible for Carpenter to continue to practice at UAB given the information Pasche

had told the risk management committee. Doc. 40-4 at 19. Pasche suggested that

Carpenter potentially could continue teaching and research in a voluntary, unpaid

faculty position.

      After the meeting, Carpenter believed that even if he pursued a formal

hearing, he would not be reinstated. He also understood that if there was an

adverse result at the hearing, it would be reported to the National Practitioner

Database. Carpenter knew that if a termination was reported to the National




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Practitioner Database, it would become public knowledge and would make it more

difficult for him to be hired in the future.

      Carpenter then returned to the clinic and told his nurse that he was going to

have to resign. He went home and reported to his wife that he was going to have to

resign because, based on what he had been told at the meeting, there was no chance

that he could prevail at the hearing. The next day Carpenter weighed his options of

resigning or pursuing a hearing. He discussed the situation with one or two friends

but did not consult an attorney or speak with anyone at UAB. Carpenter also did

not review the UAB faculty handbook, which set forth the procedures that would

have governed the hearing.

      The following day—two days after the initial meeting—Carpenter and

Pasche met for about 20 minutes. Pasche again told Carpenter “he thought there

was no possibility of reconsideration or reversal of the committee’s decision and

that he thought there was zero chance that [Carpenter] could ever practice again at

UAB no matter what.” Doc. 40-4 at 23. Pasche then provided Carpenter with a

pre-prepared resignation later, which Carpenter signed.

      A few days after signing the letter, Carpenter had second thoughts about

resigning. Carpenter asked Landefeld to allow him to withdraw his resignation so

that he could proceed with a hearing. Carpenter also provided Landefeld with

copies of medical articles that he claimed supported his decision to treat the patient


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with hormone therapy for an extended period of time. Landefeld told Carpenter

that he could regain clinical privileges only if Pasche and another physician agreed

to his reinstatement. Eventually, UAB sent Carpenter a letter stating that his

resignation was final and that UAB had no mechanism for him to rescind his

resignation.

       Carpenter sued UAHSF in state court, alleging that he had been denied due

process under the Fourteenth Amendment and the Alabama Constitution because

he had not received a pre-termination hearing. UAHSF removed the case to

federal court.3 In federal court, UAHSF moved for summary judgment, arguing

that Carpenter had voluntarily resigned and thus waived his right to a hearing. The

district court granted summary judgment to UAHSF on Carpenter’s federal due

process claim, concluding that Carpenter had “voluntarily relinquished any

property interest” in his continued employment when he resigned. Doc. 49 at 12.

The court declined to exercise supplemental jurisdiction over Carpenter’s state law

due process claim. This is Carpenter’s appeal.




       3
         Carpenter also sued the Board of Trustees of the University of Alabama, which joined
in the removal of the suit. At the motion to dismiss stage, the district court determined that the
Board of Trustees was entitled to immunity from suit. Carpenter has not appealed the district
court’s dismissal of his claims against the Board of Trustees.

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                        II.    STANDARD OF REVIEW

      “We review de novo the district court’s grant of summary judgment,

construing the facts and drawing all reasonable inferences in favor of the

nonmoving party.” Smelter v. S. Home Care Servs., Inc., 904 F.3d 1276, 1284

(11th Cir. 2018). Summary judgment is appropriate if the record gives rise to “no

genuine dispute as to any material fact,” such that “the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material

fact exists when “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

                               III.   DISCUSSION

      Carpenter contends that UAHSF violated his constitutional right to

procedural due process when his employment was terminated without a hearing.

We assume for purposes of this appeal that Carpenter, as a tenured professor, had a

property interest in his continued employment. The issue on appeal is whether

UAHSF deprived Carpenter of this property interest without due process. If

Carpenter resigned of his own “free will even though prompted to do so by events

set in motion by [UAHSF], he relinquished his property interest voluntarily and

thus cannot establish that [UAHSF] deprived him of it within the meaning of the

due process clause.” Hargray v. City of Hallandale, 57 F.3d 1560, 1567 (11th Cir.


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1995) (internal quotation marks omitted). But if Carpenter’s resignation “was so

involuntary that it amounted to a constructive discharge,” it qualified as a

deprivation that triggered due process protections. Id. (internal quotation marks

omitted). Our inquiry thus focuses on the voluntariness of Carpenter’s resignation.

       We presume that an employee’s resignation is voluntary unless the

employee comes forward with “sufficient evidence to establish that the resignation

was involuntarily extracted.” Id. at 1568 (internal quotation marks omitted). We

have identified two circumstances when an employee’s resignation will be deemed

involuntary: when the employer either “forces the resignation by coercion or

duress” or “obtains the resignation by deceiving or mispresenting a material fact to

the employee.” Id. Carpenter contends that he was forced to resign under duress. 4

       To evaluate Carpenter’s claim of duress, we must consider whether, under

the totality of the circumstances, UAHSF’s conduct in obtaining Carpenter’s

resignation “deprived [him] of free will in choosing to resign.” Id. We have

identified a non-exhaustive list of factors to guide our analysis:

       (1) whether the employee was given some alternative to resignation;
       (2) whether the employee understood the nature of the choice he was
       given; (3) whether the employee was given a reasonable time in which
       to choose; (4) whether the employee was permitted to select the


       4
        On appeal, Carpenter also contends that UAHSF obtained his resignation through
deception or misrepresenting a material fact. But we will not consider this argument, which
Carpenter failed to raise in the district court and makes for the first time on appeal. See Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

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       effective date of the resignation; and (5) whether the employee had the
       advice of counsel.

Id. Here, after considering these factors and the totality of the circumstances, we

agree with the district court that, even viewing the evidence in the light most

favorable to Carpenter, he was not forced to resign.

       Beginning with the first factor, we conclude that Carpenter had an

alternative to resignation. Carpenter could have refused to resign and challenged

his termination at a hearing. Carpenter contends that Pasche’s statement that the

risk management committee’s decision would not be reconsidered indicates that

the hearing was not a meaningful alternative. But the objective evidence shows

that the hearing was a meaningful alternative because UAB’s faculty handbook

stated that the termination hearing would have been held before a separate hearing

committee. Although Carpenter could have stood firm and fought the charges

against him, he elected to resign his position. 5

       We do not dispute that Carpenter perceived resignation to be his only option.

Carpenter viewed the hearing as an unpleasant alternative given the risk that if he

lost at the hearing, his termination would be reported to the National Practitioner

Database. As Carpenter explained, such a report would have been “humiliating”


       5
          Carpenter alternatively argues that he could have been considered to be “constructively
discharged when his clinical privileges were immediately revoked” at the initial meeting. Reply
Br. at 3. Because he raises this argument for the first time in a reply brief, it is not properly
before us. See Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003).

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and made it “very difficult” for him to secure future employment. Appellant’s Br.

at 17. But in applying this factor, we use an objective standard, not Carpenter’s

subjective perception, to assess whether an alternative was available. See Hargray,

57 F.3d at 1568. (“The assessment of whether real alternatives were offered is

gauged by an objective standard rather than by the employee’s purely subjective

evaluation; that the employee may perceive his only option to be resignation is

irrelevant.” (alterations adopted) (internal quotation marks omitted)). The fact that

Carpenter was forced to choose “between comparably unpleasant alternatives”

does not alone establish that his resignation was involuntary. Id. (internal

quotation marks omitted). Applying this objective standard, we conclude that

Carpenter had the option to pursue a hearing and thus had an alternative to

resignation.

      Carpenter also argues that the option to pursue the hearing did not qualify as

a meaningful alternative because he might have been terminated after the hearing.

He contends that to qualify as an alternative, the option had to “offer continued

employment.” Appellant’s Br. at 17. Not so. We explained in Hargray that a

resignation can be voluntary even when the only alternative is facing possible

termination for cause. See Hargray, 57 F.3d at 1568; Christie v. United States,

518 F.2d 584, 588 (Ct. Cl. 1975) (“This court has repeatedly upheld the




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voluntariness of resignations where they were submitted to avoid threatened

termination for cause.”).

      Carpenter further contends that the first Hargray factor has not been

satisfied because UAHSF lacked good cause to terminate him. We have said that

this factor will not be satisfied when an “employer actually lacked good cause to

believe that grounds for the termination . . . existed.” Hargray, 57 F.3d at 1568.

But to establish that UAHSF lacked good cause, Carpenter was required to identify

evidence that suggested UAHSF “knew or believed” that its reason for threatening

to remove Carpenter “could not be substantiated.” Id. at 1569; see Schultz v. U.S.

Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987) (stating that an employee must “show

that the [employer] knew that the reason for the threatened removal could not be

substantiated”). Put differently, good cause will exist so long as the employer had

“prima facie evidence that an arguable basis for discharge existed.” Christie, 518

F.2d at 588.

      Here, there is no evidence that UAHSF knew or believed that its reason for

threatening to remove Carpenter could not be substantiated. UAHSF had an

arguable basis to discharge Carpenter based on his decision to treat a patient with

pre-operative hormones for two years while her cancer was progressing instead of

pursuing chemotherapy. Doc. 40-5 at 8-9. The record evidence shows that the

UAHSF physicians who reviewed the patient’s records believed that Carpenter’s


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decision was “unacceptable” as a medical strategy, Doc. 40-4 at 16, and that he had

placed the patient at risk. In light of this evidence, UAHSF had a good faith basis

to believe that it had grounds to discharge Carpenter.

         Turning to the second Hargray factor, we conclude that Carpenter

understood that there was a choice available to him and that he could either resign

or pursue a hearing. Carpenter contends that he did not understand that there was

an alternative to resigning because Pasche told him that he had to resign. But there

is no dispute that Bourge clarified that Carpenter had an alternative option, which

was to pursue a hearing. And Carpenter testified that he was told at the meeting

that he had a choice. Given Carpenter’s testimony that he was told he could pursue

a hearing, no reasonable could jury could find that Carpenter did not know he had

a choice.

         Carpenter argues that this factor is not satisfied because he lacked a

“complete understanding of what the choices were before him.” Appellant’s Br. at

20. He asserts that he was misled about the true nature of the choice before him

because Pasche had falsely told him that the committee’s decision was irrevocable

and could not be reconsidered at the hearing. Even if Carpenter left the meeting

unclear about the hearing procedures, he had an opportunity to consult the UAB

faculty handbook to review those procedures before deciding to resign but failed to

do so.


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      Regarding the third Hargray factor, we conclude that Carpenter was given a

reasonable time to decide whether to resign. We accept that Carpenter was caught

off-guard at the initial meeting. But there is no evidence that anyone at the

meeting made Carpenter decide on the spot whether to resign or request a hearing.

Carpenter instead was permitted to leave the meeting without deciding and then

used the next day to consider his decision. Before making up his mind, Carpenter

spoke with his wife and one or two friends about the decision. Carpenter could

have used this time to consult with an attorney or review the UAB faculty

handbook provisions regarding the termination hearing, but he chose not to do so.

On the second day after the meeting, Carpenter resigned. Because Carpenter was

given a meaningful opportunity to weigh his options, this factor suggests that his

resignation was voluntary.

      In support of his argument that he was not given a reasonable time to

consider his options, Carpenter cites to our decision in Rodriguez v. City of Doral,

863 F.3d 1343 (11th Cir. 2017). But Rodriguez is distinguishable. In Rodriguez,

we concluded that an employee was not given a reasonable time when he had only

five minutes to decide whether to resign or accept his termination. Id. at 1354.

Unlike the employee in Rodriguez who was forced to make a snap, on-the-spot

decision, Carpenter was given considerably more time to weigh his options and

decide whether to resign or fight the charges.


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      We acknowledge that the two final factors—whether Carpenter was

permitted to choose the date of his resignation (no) and whether he received the

advice of counsel (no)—favor Carpenter to some extent. But the advice of counsel

factor carries little weight here given that Carpenter chose not to seek legal advice

in the period between the initial meeting and signing the resignation letter.

Importantly, there is no indication that during this period anyone prevented

Carpenter from consulting with a lawyer.

      After considering the totality of the circumstances in this case, we cannot

say that a reasonable jury could find that Carpenter was under duress when he

resigned. As we have explained above, Carpenter had an alternative to resigning

because he could have pursued a hearing. In addition, he was given a reasonable

time to decide between his options. True, Carpenter did not fully understand the

procedures governing the hearing. But we again return to the fact that he had the

opportunity to learn about the hearing procedures prior to submitting his

resignation but failed to do so. Weighing all these factors, we conclude that

Carpenter failed to create a genuine issue of material fact about whether he

resigned voluntarily. Because Carpenter resigned of his own free will, even




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though prompted to do so by events set in motion by UAHSF, he cannot establish

any unconstitutional deprivation. 6

                                  IV.    CONCLUSION

       For the reasons set forth above, we affirm the district court’s order granting

summary judgment to UAHSF.

       AFFIRMED.




       6
          Carpenter also argues that to survive summary judgment, he had to come forward with
only a scintilla of evidence that he resigned under duress. He relies on an Alabama state court
decision to support this argument. Carpenter contends that we should apply Alabama’s state-law
summary judgment standard because the dispute arose in Alabama, Carpenter is an Alabama
citizen, and UAHSF is organized under Alabama law. This argument is meritless. A federal
district court must apply the federal summary judgment standard set forth in Federal Rule of
Civil Procedure 56, not the standard provided by state law. See Hanna v. Plumer, 380 U.S. 460,
469-70 (1965).

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