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HALIM ASSAAD-FALTAS v. UNIVERSITY OF ARKANSAS FOR

March 1, 1989

MARIE-THERESE HALIM ASSAAD-FALTAS, PLAINTIFF
v.
UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES; AUBREY HOUGH, JR.; A.A. PAPPAS; and M. MELINDA SANDERS, DEFENDANTS; BOARD OF TRUSTEES OF THE UNIVERSITY OF ARKANSAS; AUBREY J. HOUGH, JR., M.D., Chairman of the Department of Pathology, UAMS; M. MELINDA SANDERS, M.D., Chairman of the Residency Training Committee, Department of Pathology, UAMS; and ALEXANDROS A. PAPPAS, M.D., Director of Clinical Laboratories UAMS, COUNTER-CLAIMANTS v. MARIE-THERESE HALIM ASSAAD-FALTAS, COUNTER-DEFENDANT; MARIE-THERESE H. ASSAAD-FALTAS, PLAINTIFF v. ALEXANDROS A. PAPPAS, M. MELINDA SANDERS, ROBIN JONES, ANNA FRANCINE TRYKA, HOUN YEE HOUN, MARIANNA PARDUE, ELIZABETH COCKERILL, LINDA FLORES, JANE LEWIS, ERIC REIMUND, SID EUDY, SAAD PAUL SHAHEEN AND ROBERT GRIFFIN, DEFENDANTS


Elsijane T. Roy, United States District Judge.


The opinion of the court was delivered by: ROY

ELSIJANE T. ROY, UNITED STATES DISTRICT JUDGE.

 The two consolidated cases before the Court have had a rather torturous history. The Eighth Circuit Court of Appeals has succinctly set out the history in Faltas v. University of Arkansas for Medical Sciences, No. 87-1951 (8th Cir. Dec. 27, 1988) (not designated for publication).

 
These appeals arise of out consolidated actions brought by Assaad against UAMS and members of the UAMS pathology department. Assaad is a Copt Eygptian national. She was appointed to a residency at UAMS for the period beginning July 1, 1986 and ending June 30, 1987. Assaad began her residency in a chemistry rotation, during which she was rated as having performed acceptably well. Her next rotation was in clinical pathology, where it appears that Assaad first began to have problems with the UAMS staff. The record indicates that Assaad was defensive and argumentative when offered constructive criticism by attending physicians.
 
The Residency Training Committee (Committee) became concerned with Assaad's performance and recommended that she work more closely with a senior resident while on call in the clinical pathology rotation. This recommendation was refused by Assaad, and she was assigned to an autopsy rotation. In December 1986, the Committee decided not to renew Assaad's appointment for 1987-1988.
 
During Assaad's autopsy rotation, numerous problems arose. On February 23, 1987, the Committee placed Assaad on probation for the following reasons: (1) her failure to complete fourteen overdue autopsies; (2) her failure to perform an autopsy as requested by Dr. Aubrey Hough, professor and chairman of the pathology department, and Dr. Robin Jones, director of the autopsy service; (3) her removal of disposable scrub suits and gloves from the VA Hospital without authorization; and (4) her unavailability to perform an autopsy on February 21 and 22, 1987. Assaad was removed from the autopsy rotation and from all on-call duties and given until March 17, 1987, to complete the overdue autopsies. On March 18, 1987, Assaad was terminated, apparently because of her failure to complete the outstanding autopsies (the letter of termination has since been expunged from Assaad's file).
 
Assaad appealed her termination to the UAMS Appeals Committee. After three days of hearings, the Appeals Committee negotiated a settlement containing the following conditions: (1) Hough would expunge his letter of termination of March 18, 1987; (2) Assaad would withdraw her appeals action; (3) Assaad would be allowed to complete the outstanding autopsies at the VA; (4) Assaad would receive a certificate for nine months of residency training; and (5) Assaad would resign as of April 30, 1987.
 
On June 1, 1987, Assaad brought an action for injunctive relief and damages pursuant to 42 U.S.C. §§ 1981 and 1983 against appellee UAMS, Hough and Drs. M. Melinda Sanders and Alexandros Pappas, staff pathologists and members of the Committee. Assaad alleges that she was terminated as a resident without cause and on the basis of race. It was also alleged that appellees violated the settlement agreement. Assaad then filed a motion for a temporary restraining order and preliminary injunction seeking to return to UAMS to complete her residency.
 
After a hearing, the district court denied Assaad's motion, concluding that under the factors set out in Dataphase, Assaad failed to satisfy her burden. Assaad appeals the denial of this motion in Appeal No. 87-1951.
 
On July 1, 1987, Assaad filed a second action alleging negligent training, negligence and assault, and libel and slander, naming as defendants many of the witnesses who had testified at the earlier hearing. Assaad applied for a preliminary injunction, this time to place her UAMS residency file under seal of the court, ordering appellees to refrain from quoting documents in the file, and ordering appellees to warrant that their employees, agents and servants would refrain from any publications not specifically authorized by Assaad.
 
The case was assigned to the same judge who was presiding over the previous case. The court set a hearing on Assaad's second application for a preliminary injunction, consolidated the two actions, and authorized the parties and the court to consider relevant evidence from the prior hearing. Two days before this hearing, Assaad sought to have forty-seven subpoenas served upon physicians and staff at UAMS and the VA Hospital. The court limited each side to six witnesses. On November 3, 1987 the district court denied the application for a preliminary injunction using the Dataphase test. Assaad appeals this denial in appeal No. 87-2678.
 
Assaad's third appeal is from the denial of two motions made after the hearing on her second application for a preliminary injunction. One of Assaad's subpoenas duces tecum was issued to obtain the tape recordings of the UAMS Appeals Committee hearings. These tapes were entered into evidence without having been played. After the hearing, the tapes were given to appellees' counsel to be copied for Assaad. Soon thereafter, it was discovered that only one session had been recorded and that the tapes from two other days of hearings were blank. Assaad moved for sanctions against appellees for refusing to provide her with these tapes, and for a hearing to reconstruct the contents of the tapes. Appellees responded by submitting affidavits of the custodian of the tapes and of all committee members who were present at the hearing regarding the circumstances surrounding the copying of the tapes at the appeal hearing and for Assaad after the second hearing.
 
Also, on January 14, 1988, Assaad filed a motion to recuse the district court judge because the judge had served on an advisory committee to UAMS between 1953 and 1955. Both the motion for sanctions and motion to recuse were denied by the district court in separate orders on March 7, 1988. Assaad appeals these orders in appeal No. 88-1590.

 Id. slip op. at 3-6.

 There are motions to dismiss and for summary judgment pending before the court. In light of the affirmance by the Eighth Circuit of this Court's denial of plaintiff's motions for a preliminary injunction, motion for sanctions and motion for recusal, the Court will now proceed with the motions to dismiss and for summary judgment.

 Plaintiff has named "the University of Arkansas for Medical Sciences" (UAMS) as a defendant in Case No. LR-C-87-365. UAMS is the name of a campus which is a part of the University of Arkansas, an institution of higher education established under Arkansas law. (Ark. Code Ann. §§ 6-64-401 et seq.). UAMS is not a separate institution or a corporate body which has the capacity to sue or be sued. Therefore, all allegations directed at UAMS are dismissed for failure to state a claim upon which relief can be granted.

 The next issue raised by defendants is that the Board of Trustees of the University of Arkansas is immune from suit under the Eleventh Amendment. As stated by the defendants, the Eighth Circuit considered the question of whether the University of Arkansas Board of Trustees was entitled to Eleventh Amendment immunity in Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985). In that case, appellees, the Chancellor and Athletic Director of the University of Arkansas at Pine Bluff, and the Board of Trustees of the University of Arkansas, argued that the United States Supreme Court holding in Arkansas v. Texas, 346 U.S. 368, 74 S. Ct. 109, 98 L. Ed. 80 (1953), entitled the University to Eleventh Amendment immunity.

 The Eighth Circuit acknowledged that Arkansas v. Texas "considered the relationship between the State of Arkansas and the University of Arkansas and held that 'the University of Arkansas is an official state instrumentality . . . and a suit against the the University is a suit against the State.' 346 U.S. at 370.'" However, the Eighth Circuit concluded that the Supreme Court's holding did not decide the issue of Eleventh Amendment immunity because it "was considering whether a suit by the University of Arkansas against the State of Texas was a suit between two states so as to come within the original jurisdiction of the Court," and was not deciding the University's status in the Eleventh Amendment context. Greenwood v. Ross, supra at 454.

 Without reaching a decision, the Eighth Circuit remanded Greenwood to the District Court for the Eastern District of Arkansas with directions "to make findings concerning whether the University of Arkansas is for Eleventh Amendment purposes a separate entity from the State of Arkansas."

 Although a decision by the District Court had not been rendered at the time the motion for summary judgment was filed, on January 29, 1988, United States District Judge George Howard entered a Memorandum Opinion and Order, making the following findings on the issue of Eleventh Amendment immunity.

 
Following the directions of the Eighth Circuit, the court now addresses whether the suit for damages against the University is barred by the Eleventh Amendment. On December 9, 1986, in the case of Lorman Drilling Contractors, Inc. v. U.S. Fidelity & Guaranty Co., 85-5191, out of the Western District of Arkansas, Judge Waters found that the University of Arkansas Board of Trustees is the state for purposes of the Eleventh Amendment and so is immune from suit. In Willis v. Laser, LR-C-86-311 (E.D. Ark. April 27, 1987), Judge Eisele also held that the University is immune from suit under the Eleventh Amendment. While plaintiff argues that the state has explicitly waived its immunity, the Court cannot find an express waiver of immunity in Ark. Stat. Ann. § 13-349 (M) (Repl. 1979) which merely provides the mechanism for payment of judicial awards through the payrolls. The Arkansas Supreme Court in Beaulieu v. Gray recently reaffirmed that Article V, § 20 of the Arkansas Constitution provides for sovereign immunity. See also, Pagan, Eleventh Amendment Analysis, 39 Ark. L. Rev. 447. Thus, while monetary damages against the University are barred by the Eleventh Amendment, prospective, equitable relief either by injunction or declaratory judgment is not barred. Slaughter v. Levine, 801 F.2d 288 (8th Cir. 1986). Furthermore, the Eleventh Amendment does not bar the Title VII claim against the University. Fitzpatrick v. Bitzer, 427 U.S. 445, [49 L. Ed. 2d 614, 96 S. Ct. 2666] (1976)

 Greenwood v. Ross, LR-C-79-406, pg. 4-5 (Jan. 29, 1988).

 The Court agrees with Judge Howard and will not address all of defendants' arguments on this issue. As an instrumentality of the State of Arkansas, the University of Arkansas and its officials are entitled to Eleventh Amendment immunity from damage claims brought under 42 U.S.C. § 1983. Summary judgment is therefore granted as to plaintiff's damage claims.

 Summary judgment is also appropriate as to plaintiff's pendent state law claim for breach of contract, alleged in LR-C-87-365. The Eleventh Amendment prohibits a federal court from entertaining pendent claims alleging state officials violated state law. Pennhurst State School and ...


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