742 F.2d 94 (3rd Cir. 1984), 83-5471, Krynicky v. University of Pittsburgh

Docket Nº:83-5471, 84-1077.
Citation:742 F.2d 94
Party Name:Harry T. KRYNICKY, Jr., Appellant, v. UNIVERSITY OF PITTSBURGH, Wesley W. Posvar, Paul N. Robinson, Rhoten A. Smith, Donald N. Henderson, Robert Nossen, Appellees. Rosemary SCHIER, Appellee, v. TEMPLE UNIVERSITY, Appellant.
Case Date:August 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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742 F.2d 94 (3rd Cir. 1984)

Harry T. KRYNICKY, Jr., Appellant,



Robinson, Rhoten A. Smith, Donald N. Henderson,

Robert Nossen, Appellees.

Rosemary SCHIER, Appellee,



Nos. 83-5471, 84-1077.

United States Court of Appeals, Third Circuit

August 23, 1984

Argued April 23, 1984.

As Amended Sept. 28, 1984.

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Michael P. Malakoff, Ellen M. Doyle (argued), Berger, Kapetan, Malakoff & Meyers, Pittsburgh, Pa., for appellant Harry T. Krynicky, Jr., No. 83-5471.

James J. Restivo, Jr. (argued), Michael J. Betts, Reed, Smith, Shaw & McClay, Ronald F. Talarico, University of Pittsburgh, Counsel's Office, Pittsburgh, Pa., for appellees, No. 83-5471.

Robert J. Reinstein, Eleanor W. Myers, Temple University, Philadelphia, Pa., amicus curiae, Temple University, No. 83-5471 and for appellant, No. 84-1077.

Marcy D. Colins (argued), Philadelphia, Pa., for appellee Rosemary Schier, No. 84-1077.

Before ADAMS and BECKER, Circuit Judges, and SAROKIN, District Judge [*].


BECKER, Circuit Judge.

These consolidated appeals present the question whether the recent Supreme Court decisions in Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); and Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), in effect overruled this court's decision in Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir.1977) (in banc ), which held that the University of Pittsburgh (and by implication Temple University)

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are "state actors" for purposes of 42 U.S.C. Sec. 1983.

The district courts reached differing results. In Krynicky the district court concluded that the Lugar trilogy had undermined Braden, and held that, because the Commonwealth of Pennsylvania had not participated with the University of Pittsburgh in making the faculty tenure decision challenged by Krynicky, the University's decision was not subject to the constraints of the fourteenth amendment. In Schier the district court reached the opposite result, holding that Braden was still controlling, and that the Commonwealth had so far insinuated itself into the operation of Temple University that the institution was subject to the mandates of the fourteenth amendment in connection with Schier's claim of retaliatory discharge.

Because we believe that Braden has not been overruled by the Lugar trilogy, we reverse in Krynicky and affirm in Schier.


A. Krynicky

Harry Krynicky, an Assistant Professor of English at the University of Pittsburgh, brought suit against the University and various administrative officials under 42 U.S.C. Sec. 1983, alleging that he had a "property" and "liberty" interest in his employment contract within the meaning of the fourteenth amendment, and that the University infringed those interests when it failed to notify him in a timely fashion of its decision to deny him tenure. In addition, Krynicky alleged that the tenure process generally denied him due process, and that the decision to deny him tenure was made in retaliation for his outspoken criticism of the University administration and his unorthodox teaching methods. 1 The linchpin of Krynicky's claim for purposes of this appeal is that the University's actions were taken "under color of state law" within the meaning of Sec. 1983 because of the relationship between the Commonwealth of Pennsylvania and the University.

The University and the individual defendants moved for summary judgment, but did not contest the existence of state action in the motion. The district court granted the motions in part. 560 F.Supp. 803. 2 Defendants then amended their answer to assert that there was no state action as required by Sec. 1983, and again moved for summary judgment. The district court thereupon granted the motion as to the remaining claims, stating that the reasoning of Rendell-Baker and Blum essentially superseded the Third Circuit's analysis in Braden, and that, therefore, Braden did not control. The court held that "the receipt of revenue from the state, membership of state nominees on the University's Board of Trustees, and statutory recognition that the University is part of the state's system of higher education are not sufficient to make the University's employment policies state decisions." Krynicky v. University of Pittsburgh, 563 F.Supp. 788, 789 (W.D.Pa.1983).

B. Schier

Rosemary Schier, who was an employee of Temple University Hospital from September

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1979 through September 3, 1981, brought suit against the University alleging that during the course of her employment, she was discriminated against on grounds of her sex, and that her supervisor had sexually harassed her, had retaliated against her for having filed internal complaints, and had forced her to sign a resignation memorandum. Schier sought relief under 42 U.S.C. Sec. 1983 and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e.

At the close of discovery, Temple moved for summary judgment on all claims, asserting that the Title VII claim was time-barred and that Schier had not presented any facts to support her claim that Temple had acted under color of state law for the purposes of Sec. 1983. The district court granted summary judgment on Schier's Title VII claim, but denied Temple's motion on the Sec. 1983 claim, holding that, under the symbiotic relationship test for state action articulated in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), the state had a sufficiently close relationship with Temple that actions taken by Temple were subject to constitutional scrutiny under section 1983. In reaching its decision, the district court considered the applicability of the Lugar trilogy to its decision, but concluded that Blum and Rendell-Baker did not overrule Burton, and that, therefore, the Third Circuit's opinion in Braden was still good law. Schier v. Temple University, 576 F.Supp. 1569 at 1578 (E.D.Pa.1984). However, recognizing that another district court in the circuit had reached the opposite result in the Krynicky case, the court certified for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b) the question "whether, for the purposes of 42 U.S.C. Sec. 1983, acts performed by employees of a statutorily designated 'state-related' institution of higher education such as Temple University constitute 'state action.' " We agreed to hear the appeal.


A. The State Action Requirement and the State Action Tests

The fifth and fourteenth amendments protect individuals only from governmental action. In order for Krynicky or Schier to benefit from these constitutional protections, they must show that the alleged violations of due process and freedom of speech are "fairly attributable to the state." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). The "state action requirement" preserves "individual freedom by limiting the reach of federal law and federal judicial power" and avoids "imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar, 457 U.S. at 936, 102 S.Ct. at 2754.

The requirement of section 1983 that the challenged activity be taken "under color of state law" 3 has been treated as identical to the "state action" element of the fourteenth amendment. Lugar, 457 U.S. at 929, 102 S.Ct. at 2750; Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 n. 7, 90 S.Ct. 1598, 1606 n. 7, 26 L.Ed.2d 142 (1970). What constitutes sufficient state participation to attribute activity to the state under section 1983 has proved to be an extremely difficult question. It has variously been characterized as "murky waters," Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589, 591 (3d Cir.1979), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 814 (1980); "obdurate," Braden v. University of Pittsburgh, 552 F.2d 948, 955 (3d Cir.1977); and a "protean concept," Magill v. Avonworth Baseball Conference, 516 F.2d 1328, 1331 (3d Cir.1975) (quoting Lewis,

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"The Meaning of State Action," 60 Colum.L.Rev. 1083, 1085 (1960)).

The Supreme Court to date has not developed a uniform test for ascertaining when state action exists and has stated that no such unitary test is possible. Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967). Instead, the Court has adopted a number of approaches whose application depends upon the circumstances. The Court has suggested that lower courts investigate carefully the facts of each case. Burton, 365 U.S. at 722, 81 S.Ct. at 860. Two of the approaches are relevant to these appeals: the "symbiotic relationship" test and the "nexus" test. 4

In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), the Supreme Court found state action where there was a "symbiotic relationship" between the acting party and the state. 5 The Court held that state action exists when:

The State has so far insinuated itself into a position of interdependence with ... [the acting party] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so "purely private" as to fall without the scope of the Fourteenth Amendment.

Id. at 725, 81 S.Ct. at 862...

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