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Mullins v. Kyrkanides

United States District Court, E.D. Kentucky, Central Division, Lexington

September 28, 2018

DR. RAYNOR MULLINS, Plaintiff,
v.
STEPHANOS KYRKANIDES, Individually and in his Official Capacity as Dean of the University of Kentucky College of Dentistry, Defendant.

          OPINION AND ORDER

          ROBERT E. WIER UNITED STATES DISTRICT JUDGE.

         Defendant Stephanos Kyrkanides, in both his individual capacity and his official capacity as Dean of the University of Kentucky College of Dentistry (“UKCOD”), moves for summary judgment on Plaintiff Dr. Raynor Mullins's First Amendment retaliation Complaint brought under 42 U.S.C. § 1983. DE #44. The motion is fully briefed (DE ##49, 50), with extensive citations to the lengthy record. Summary judgment practice is not about fact-finding, but rather assessing whether there are material facts in genuine dispute to be resolved via trial. Here, the epic story of academic intrigue and the place of free speech at the UKCOD, involving contested interactions between Dr. Mullins, Dean Kyrkanides[1], and others, requires a trial. The Court does not pick between reasonably supported versions, and a jury will decide what actually happened. Except as to a limited part, the Court DENIES the motion for summary judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         The record in this case, fully audited by the Court, is extensive and replete with disagreements as to particular events and personal motives. Some of these disputes concern material facts ultimately necessary for resolution of the central issues. For purposes of ruling on Kyrkanides's summary judgment motion, the Court, as it must, views the record and draws reasonable inferences in favor of Plaintiff and his version of events, as detailed in his First Amended Complaint (DE #30) and summary judgment response (DE #49).

         Mullins is a public health dentist, who served as a member of the UKCOD faculty in various capacities from the completion of his residency in 1974 until his contract's lapse in the summer of 2017. DE #30 ¶ 1-7. Beginning in 2008, Mullins served in a post-retirement capacity as a member of the UKCOD's Emeritus Faculty. Id. at ¶ 9; DE #44-3 (Mullins's Post-Retirement Appointment); DE #49-8 (Mullins Dep.)[2] at 19. His employment, at least in the 2016-17 academic year, relied on grants awarded to the UKCOD. DE #49 ¶ 2. Mullins's spot typically hinged on grant funding.[3] See Id. at 1-3. However, he had been in the post-retirement post for approximately nine cycles, and during that time had been on several different grants and on some non-grant funding at times. See DE #49-8 at 27-33. Notably, the formal appointment paperwork does not list a grant-funded contingency. See DE #44-3. Mullins described his post-retirement role at the University as follows: “It was full-time research. I had minimum, I would say less than five percent, administrative responsibilities. I had a few teaching assignments but very few. And I worked part-time with the [S]enate on major initiatives . . . [M]y primary role was to help build the research partnerships in rural Kentucky.” DE #49-8 at 17-18.

         On approximately June 22, 2016, Kentucky Governor Matt Bevin announced a plan to alter Kentucky's Medicaid program called the “Kentucky HEALTH Waiver Proposal” (hereinafter “the Medicaid waiver” or “the waiver”). DE #30 ¶ 11. UK assigned Vice President for Administrative & External Affairs for UK HealthCare Mark Birdwhistell to work closely with the Governor's Office to design the waiver proposal. Id. at ¶ 12; DE #49-8 at 76. Part of the waiver plan would have eliminated or reduced dental coverage for the Kentucky Medicaid population; Mullins, who had a long history of dealing with underserved populations in the state, took a dim view of the changes.

         Mullins promptly intimated to Kyrkanides his concerns about the new waiver proposal. This included copying Kyrkanides on an initial reaction email. See DE #44-13. Then, “in a brief unplanned hall encounter . . . before Defendant left for a summer vacation in Greece, ” Kyrkanides allegedly told Mullins to “stay ‘off radio'” with respect to the waiver, and that this direction came from “up top.” DE #30 ¶ 14-15; see also DE #49-8 at 109-110. Mullins took this conversation to indicate that Kyrkanides, with support from and at the direction of UKCOD officials and the Governor's Office, wanted him to remain silent regarding his opposition to the waiver proposal. DE #30 ¶ 16. Mullins told Kyrkanides that, while he had not received any media requests yet, he planned to submit public comments opposing the waiver proposal. Id.; DE #49-8 at 109.

         On or about July 12, 2016, during the open period for submission of public comments on the waiver, Mullins, together with four other concerned dentists, submitted public comments critical of the waiver proposal. DE #30 ¶ 17; DE #44-14 (Comments). The comments explicitly issued in the individuals' personal capacities as citizens and were not representative of the UKCOD. DE #44-14 at 12. However, while Kyrkanides was in Greece on vacation, he received a phone call from (or prompted by) someone in the Bevin administration concerning Mullins's public comments. DE #30 ¶ 21; DE #49-12 (Cunningham Dep.) at 14-15; DE #49-9 (Raybould Dep.) at 22; DE #49-6 ¶ 6 (Ebersole Aff.). The contrast in versions here is stark. Kyrkanides claims to have had no idea of the comments' tone or content and not to have cared a whit: “Whatever the comments are, it's fine with me.” DE #49-13 (Kyrkanides Dep.) at 172. While the Dean describes himself as fully supportive of Mullins's right to comment, id., those he interacted with following the Greece vacation described things quite differently. See, e.g., DE #49-6 (Ebersole Aff.) ¶ 6 (recalling Kyrkanides telling him that “while on vacation in Greece, he [Kyrkanides] had received a call from Dr. Mark Birdwhistell in Frankfort concerning our Medicaid waiver comments, and that the signees . . . were aggravating the Governor's waiver process and . . . it was causing a problem for him and the College”); accord DE #49-9 (Raybould Dep.) at 29-30; DE #49-12 (Cunningham Dep.) at 14-15. There is plenteous evidence of a strong negative reaction by Kyrkanides. Mullins maintains that Kyrkanides's attitude and behavior toward him shifted and deteriorated from this point forward.

         In mid-August 2016, Mullins and Kyrkanides had what Mullins characterizes as a chance meeting in the office of UKCOD's Dr. Greg Zeller, where they briefly discussed Plaintiff's public comments; Mullins alleges that, at this meeting, Kyrkanides urged him to “get off radar” with respect to the waiver proposal. DE #30 ¶ 23; DE #49 at 8-9; DE #49-8 at 101, 143. Mullins took this statement to mean he should remain silent regarding his opposition to the waiver. Mullins also alleges that, around this time, Kyrkanides stated at a meeting at which Mullins's supervisors and colleagues were present, but Plaintiff was not, that Mullins “ha[d] to go.” DE #30 ¶ 26; see DE #49-9 at 21-22 (Dr. Raybould testifying to and confirming Kyrkanides's statement that “Raynor has got to go.”). On approximately August 24, 2016, Mullins states that Dr. Raybould informed him of Kyrkanides's comments at the meeting, which he memorialized in his notes from that conversation. DE #30 ¶ 27; see DE #49-11 (Mullins's August 24, 2016 meeting notes). Department Chair Dr. Cunningham confirmed that, on the day after Kyrkanides announced to Dr. Raybould that Mullins had “to go, ” the Dean definitively communicated to him and others that Mullins was “not to be involved anymore” in public health for the UKCOD. See DE 49-12 (Cunningham Dep.) at 17-18.

         Thus, at this time, per one reasonably supported version, Dean Kyrkanides not only had warned Mullins to stay “off radar, ” he had explicitly told Mullins's supervisor and Department Chair that Mullins was to be let go. This included a direct statement to Dr. Raybould and a direct statement to Dr. Cunningham. DE #49-12 (Cunningham Dep.) at 17 (describing Kyrkanides as “very clear” in stating “Dr. Mullins needed to-you know, not be involved anymore.”); see also DE #49-6 (Ebersole stating that Kyrkanides instructed: “Dr. Mullins should be excluded from public health research projects at UK College of Dentistry in the future.”). Per Raybould, the Dean expressed his unequivocal intent to end Mullins's employment and elicited help in framing up a plan to eliminate Mullins. See DE #49-9 at 21-23 (“And I was asked to figure out a way to have Raynor go.”); id. at 23-24 (discussing meeting the next day, where Kyrkanides said “we have to formulate a plan on how to deal with Raynor” and interpreting that to mean “that he [Mullins] wouldn't be able to be employed at UK anymore, was my understanding”).

         On September 7, 2016, Mullins alleges that, during a formal meeting with Kyrkanides, the Dean expressed similar direct sentiments once again, warning Mullins to be “off the radar” and not “to piss the Governor off.” DE #30 ¶¶ 28-33; see DE #49-8 (Mullins Dep.) at 147-53 (describing the September 7 meeting); see also DE #49-6 (Ebersole Aff.) at ¶ 7 (stating that Kyrkanides previously told him that he intended to “get Raynor Mullins ‘off the radar' on this subject[].”). Mullins again took these statements to indicate Kyrkanides's displeasure regarding his public comments on the Medicaid waiver. Mullins asserts that he did not meet or substantively communicate in person again with Kyrkanides after this September 7, 2016 meeting. DE #30 at ¶ 35; DE #49-8 at 50.

         Mullins described the alleged September meeting in detail in his deposition. See, e.g., DE #49-8 at 150, 152-53 (Mullins testifying that Kyrkanides did not deny he said “Raynor must go” when “confronted” at the September 7 meeting, but nevertheless describing the meeting as a “high-quality discussion” that left Mullins optimistic about his working relationship with the Dean going forward). His depiction dramatically differs from that of Kyrkanides. Cf. DE #49-13 (Kyrkanides Dep.) at 221-225 (testifying that he told Mullins he “came to Kentucky to do good things. If I lose my job over it . . . It's a risk I'm willing to take[, ]” and that, despite having “begged” Mullins to stay, Mullins became “upset and furious” and “raised his voice.”) Per Mullins, Kyrkanides, among other things, told Mullins he could have fired him for the Medicaid comments, warned him against aggravating the Governor's office, and implicated that Mullins must be quiet about the waiver. See DE #49-8 at 109, 142-43, 204-05; DE #49-15 (Mullins's September 7, 2016 Meeting Notes). In the meeting, Mullins elected to divulge to the Dean that Dr. Raybould had reported to him the Dean's intent to terminate Plaintiff at the College. See DE #49-15.

         Mullins alleges that, beginning around this time and continuing until his departure from the UKCOD, Kyrkanides undermined Mullins's relationships with UKCOD colleagues and negatively interfered with his efforts to procure additional grant funding for the 2017-18 academic year, all of which Mullins believed to be in retaliation for his Medicaid waiver comments. DE #30 ¶ 39; see DE #49-8 at 40-47. Plaintiff reports that he had some hope of reparation following the September 7 meeting, but an email chain the next week dashed most of that. The chain is a dense example of academic logomachy, but one rational take is that the emails show the Dean stirring up false dissension between Raybould and Mullins. See DE #49-18. Further, it is fair to infer that the Dean, who had prompted some of the inquiries or actions by Mullins, then used Mullins's involvement as a point of criticism. Eventually, in the chain, Kyrkanides essentially shut off further communications by telling Mullins to go through UKCOD hierarchy in the future. See Id. at 1.

         Several other record examples support Mullins's impression. Per Ms. Aalboe, a junior colleague and former division chair of Mullins, Kyrkanides took steps to alienate her from Plaintiff. See DE #49-7 (Aalboe Aff.) ¶ 6 (“I believed then, and believe now, that Dean Stephanos Kyrkanides was trying to undermine my professional relationship with Dr. Raynor Mullins.”). Kyrkanides also specifically directed Aalboe not to work with or include Mullins on future projects. Id. at ¶ 8. The Dean made similar remarks to other UKCOD faculty. See DE #49-6 ¶ 9 (Ebersole Aff.) (stating that Kyrkanides instructed that Mullins was to be excluded from public health research projects going forward); DE #49-12 (Cunningham Dep.) at 17-19 (stating that Kyrkanides informed him that Mullins was not to be involved in particular grant projects going forward).

         On January 17, 2017, Mullins received a certified letter informing him that his post-retirement appointment with the UKCOD would not be renewed for the 2017-18 academic year. DE #30 ¶ 47; DE #49-8 at 208-09. The letter justifies the nonrenewal on the following basis:

Moreover, we are not aware of any effort on your behalf to apply for or to secure any grant or other external funding in connection to your position. It is also unfortunate that in the current budget climate it is not possible for the College to support your post-retirement position from other funding streams.

DE 49-3 (January 17, 2017 Termination Letter). The signatories attributed the letter to the Dean. See, e.g., DE #49-12 (Cunningham Dep.) at 65 (confirming that “the Dean drafted it”). Per the record, the grants supporting Mullins in 2016-17 were, in fact, set to end. However, the accuracy of the letter's stated justification is subject to fair doubt. Mullins testified at length to his “effort” to secure additional funding. See DE #49-8 (Mullins Dep.) at 33-47 (listing grants and external funding sought). Further, the UKCOD budget seemingly might have afforded funding for the narrow commitment Mullins sought. Dean Kyrkanides himself suggested as much in his deposition. See DE #49-13 (Kyrkanides Dep.) at 281 (acknowledging the Dental Public Health department's “excess of revenues” and stating that “Dr. Raybould, should he want it, could have asked to utilize [it]”). As is typical in this record, Raybould and Cunningham had a very different view-they saw all funds as being in control of the Dean, and they rejected the notion that a Dean viewing Mullins as having “to go” would be receptive to continued funding for Mullins's position. See, e.g., DE #49-9 (Raybould Dep.) at 104-05 (stating that the Dean controlled all position funding and made it “clear” that Mullins was not to be on the payroll); DE #49-12 (Cunningham Dep.) at 17-18 (recalling Kyrkanides's “definitive” communication that Mullins was not to be involved in public health research projects going forward).

         Thereafter, in August 2017, Mullins filed this First Amendment retaliation action, originally against both Kyrkanides and Birdwhistell, in their individual and official capacities. DE #1 (Complaint). However, in April 2018, Mullins amended the Complaint to excise the claim against Birdwhistell. DE #30 (First Amended Complaint). Mullins's claim against Kyrkanides, in both his individual and official capacities, seeks both compensatory and punitive damages, as well as the injunctive remedy of reinstatement to his former position within the UKCOD.

         DISCUSSION

         I. Summary Judgment Standard

         Summary judgment is proper if “the movant shows that 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). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not “weigh the evidence and determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).

         The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106. S.Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 106 S.Ct. at 2552; see also id. at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” (emphasis in original)).

         A fact is “material” if the underlying substantive law identifies the fact as critical. Anderson, 106 S.Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S.Ct. at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ...


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