Medical School Professor can pursue failure of due process claim in dismissal.

Henry Kissinger once commented that academic politics are so brutal because "there is so little at stake." Just egos. In Gentilello, M.D. v. Rege, M.D. and Gilman, M.D. filed in the U.S. District Court, Northern District of Texas, Dallas Devision, Case 3:07-CV-01564L, Dr. Gentilello, a tenured professor at the University of Texas Southwestern Medical School in Dallas, was fired from his position as chairman of the Division of Burn, Trauma and Critical Care and from his endowed chair in Trauma Medicine for alleged unprofessional conduct, intimidation, inflammatory remarks and unwillingness to compromise. Dr. Gentilello alleged that he was terminated as a retaliatory measure as a result of his speaking to his superior, Dr. Rege about substandard patient care at Parkland Hospital due to discrimination based on patient socioeconomic backgrounds. He filed a civil rights claim under 42 U.S.C. § 1983 asserting retaliation for expressing his views on matters of public concern in violation of the First Amendment and removal of a life, liberty or property interest without due process of law.

In 2006, the U.S. Supreme Court in Garcatti v. Caballos, 547 U.S. 410, (2006), held that public employees could not assert First Amendment retaliation claims if their speech occurred in the course of their job responsibilities rather than an expression as a "citizen." The court in granting the defendants’ motion to dismiss as to the First Amendment claim noted that the communication occurred in a conversation with Dr. Gentilellos’ supervisor, resulted from special knowledge he obtained in his job and the speech was directed internally, not externally leading to the conclusions that it occurred during the course of his duties and his claim was therefore barred.

The court, however, accepted Dr. Gentilellos’ procedural due process claim and denied the motion to dismiss that. Dr. Gentilello argued that the grounds for his dismissal were pre-textural and in bad faith and that his dismissal was pre-determined, depriving him of a meaningful opportunity to be heard. He asserted that the notice of his removal provided false justification in order to mask retaliatory motive.

In allowing the due process claim to go forward, the court seems to have opened a back door to potentially circumvent the Garcetti decision and to possibly assist public employees who are confronting the narcissism of supervision and the command of silence in public employment during the course of their duties. There may be more at stake than meets the eye in these matters where public concerns are in issue.