UVA didn’t retaliate against medical student

Where a former student in the University of Virginia School of Medicine sued school officials for alleging retaliating against him for his speech, but he had no evidence showing the school considered the content of his speech in undertaking any of the adverse actions in question, the officials were granted summary judgment. 

Background

Kieran Ravi Bhattacharya contends that University of Virginia officials retaliated against him for his speech at a faculty panel on microaggressions. Pending before the court is their motion for summary judgment. 

Analysis

To prove his First Amendment retaliation claim at trial, Bhattacharya must prove that (1) he “engaged in protected First Amendment activity,” (2) “the defendants took some action that adversely affected [his] First Amendment rights” and (3) “there was a causal relationship between [his] protected activity and the defendants’ conduct.” There is no dispute in this case whether Bhattacharya engaged in protected speech.

Adverse action

To prove that defendants took an action that adversely affected Bhattacharya’s First Amendment rights at trial, Bhattacharya must demonstrate that defendants engaged in some conduct that “would likely deter ‘a person of ordinary firmness’ from the exercise of First Amendment rights.”

Plaintiff alleges that defendants took 10 adverse actions against him. Defendants concede that suspending Bhattacharya from the medical school and the no-trespass order would chill the speech of an ordinary person. In addition, this court has already held that the professionalism concern card was not an adverse action as a matter of law. Thus, the court will determine here whether there is a genuine dispute that the other alleged adverse actions are in fact cognizable as adverse actions as a matter of law.

The court holds that the Nov. 14, 2018, psychiatric evaluation was an adverse action. The court holds that the November 14 committee vote and the November 15 letter were not adverse actions as a matter of law because they carried no concrete consequences nor did they threaten concrete consequences. The court holds that the School of Medicine neutrally applying its attendance policy by requiring Bhattacharya to receive medical clearance pursuant to the school’s time and attendance policy after missing more than two days of class was not an adverse action as a matter of law.

In sum, there are genuine disputes with respect to four alleged adverse actions—the November 14 and 19 psychiatric evaluations and holds, the suspension and the no trespass order. The jury would have a sufficient evidentiary basis to find that those actions would chill the speech of a person of ordinary fitness.

Causal connection

Even viewing the evidence in the light most favorable to plaintiff, and drawing every reasonable inference in his favor, the court cannot identify any evidence in the record that could reasonably support a jury verdict in his favor on the causation prong of his First Amendment claim. This applies to both the set of alleged adverse actions that the court has held are actionable and those that the court has held are not actionable.

First, the court notes that it is not a Constitutional violation for government officials to take protective or preventative action based on the manner or context in which an individual speaks, especially where the speech is aggressive or threatening. Thus, Bhattacharya must provide evidence that goes to the content of his speech, not just its tone or demeanor.

Bhattacharya has put forward no direct evidence that defendants considered the content of his speech in undertaking any of the adverse actions in question. Bhattacharya instead attempts to rely in the alternative on a “pretext” theory—that all of defendants’ stated reasons for suspending him were just pretext for retaliating against his protected speech. But neither of his cases stands for the proposition that he can advance to trial on a First Amendment retaliation claim without any evidence in the record that defendants retaliated against him because of his protected speech.

Qualified immunity

The court further holds that Dr. Densmore and Dr. Peterson are entitled to qualified immunity for the claims against them in their individual capacities for money damages. Simply put, there is no clearly established First Amendment retaliation claim for taking action against a student who, in the same time period that he is repeatedly involuntarily committed to mental health institutions for threatening others, makes protected speech in an aggressive and unprofessional manner, especially where there is no evidence whatsoever that the content of his speech, rather than his tone or demeanor, was the cause of the adverse action. 

Defendants’ motion for summary judgment granted.

Bhattacharya v. Murray, Case No. 3:19-cv-54, Aug. 19, 2022. WDVA at Charlottesville (Moon). VLW 022-3-361. 20 pp.