Albright v. Longview Police Dept.

• Decision Date: 02 October 1989
• Docket Number: Nos. 88-2843,88-2895,s. 88-2843
• Citation: 884 F.2d 835
• Parties: 50 Fair Empl.Prac.Cas. 1673, 51 Empl. Prac. Dec. P 39,393, 14 Fed.R.Serv.3d 973, 4 Indiv.Empl.Rts.Cas. 1680 Gene ALBRIGHT and Bettie J. Page, Plaintiffs-Appellees, v. The LONGVIEW POLICE DEPARTMENT, etc., et al., Defendants, The Good Shepherd Hospital, Inc. d/b/a Good Shepherd Medical Center and The Board of Trustees of Good Shepherd Hospital, Inc. Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 835

884 F.2d 835

50 Fair Empl.Prac.Cas. 1673,

51 Empl. Prac. Dec. P 39,393, 14 Fed.R.Serv.3d 973,

4 Indiv.Empl.Rts.Cas. 1680

Gene ALBRIGHT and Bettie J. Page, Plaintiffs-Appellees, v. The LONGVIEW POLICE DEPARTMENT, etc., et al., Defendants The Good Shepherd Hospital, Inc. d/b/a Good Shepherd Medical Center and The Board of Trustees of Good Shepherd Hospital, Inc. Defendants-Appellants.

Nos. 88-2843, 88-2895.

United States Court of Appeals Fifth Circuit.

Oct. 2, 1989.

J. Richard Cheney, Wood Lucksinger & Epstein, Houston, Tex., Hugh M. Smith, Glen Rose, Tex., for defendants-appellants.

Larry R. Daves, Daves, Hahn & Levy, San Antonio, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Gene Albright filed suit under 42 U.S.C. Sec. 1983 for damages resulting from his termination as Personnel Director of Good Shepherd Hospital, Inc. and his arrest by the Beaumont, Texas, Police Department for distributing leaflets on hospital property.

The district court consolidated Albright's action with claims by Bettie J. Page, who sued under state law, 42 U.S.C. Sec. 1981 and Title VII to redress her alleged termination by Good Shepherd Hospital. Judgment was entered favorably to plaintiffs. Finding that the district court erred in concluding that Good Shepherd Hospital was a state actor under civil rights law, we reverse in part, vacate in part and remand the case as to Albright. We affirm the judgment in favor of Page.

BACKGROUND

Gene Albright was personnel director at Good Shepherd Hospital, Inc. ("Good Shepherd") until he was fired on June 5, 1985. Albright alleged that he was discharged in retaliation for protesting to the hospital administration various alleged violations of hospital policies and for assisting a group of nurse supervisors, including plaintiff Page, with their grievances against the hospital administration.

A week after his termination, Albright attempted to hand out to hospital employees leaflets discussing the circumstances of his discharge. In a short while, a hospital security guard informed Albright that he was violating a hospital policy prohibiting solicitation or distribution of literature by non-employees on hospital grounds. The guard warned that if Albright did not desist and leave the hospital premises, he would be arrested. The warning went unheeded and Albright was arrested. He was released after the hospital declined to press charges against him.

Addressing Albright's numerous claims for relief, the jury found as follows: First, the hospital summoned the Longview police to arrest Albright for distributing leaflets on hospital grounds, and this decision was motivated by a desire to suppress his unfavorable opinions. Second, the defendants

caused the police officer to arrest [Albright] by knowingly and willfully furnishing false information to that officer.

Third, although Albright proved that he discussed various grievances and concerns about racial discrimination with the hospital administration and nurses, the jury did not find that he was fired for that reason. Fourth, Albright had an employment agreement that provided he would not be discharged so long as his job performance was satisfactory. Fifth, specific procedures existed to govern the hospital's decision to fire Albright. In connection with the fourth and fifth interrogatories, the jury found that Albright

was discharged from his employment at the hospital in violation of established hospital policies or procedures or of his employment agreement.

Over the objection of Good Shepherd, the district court instructed the jury that the hospital was an instrumentality of Gregg County and was acting under color of state law, for purposes of the civil rights laws, in its actions toward Albright. The jury assessed his actual damages at $250,000, added $1.00 nominal damages for violation of his constitutional rights and then added $100,000.00 in punitive damages.

Page, a black female, began her career with Good Shepherd in 1973 as a graduate nurse. Page progressed from staff nurse to head nurse in 1976 and to clinical nurse supervisor in 1979. According to Page, a crisis of morale among the Good Shepherd nursing staff led to the retaliatory action taken against her. Morale had declined because the vice-president of nursing hired a white friend from the outside as nursing director rather than promoting Page or her black co-supervisor.

Page injured her shoulder during the summer of 1985, but she continued working through January, 1986, when she underwent surgery. During her recuperation, the hospital promoted another nurse to fill her position. In May 1986, Page's doctor released her to work so long as she avoided lifting. Upon her return to work, Page was advised that no supervisory position was available. The vice-president of nursing offered her only a floor position, and Page eventually obtained a position as a charge nurse. Her responsibilities were similar to those of a supervisor, but the salary was lower.

Page accordingly brought suit under 42 U.S.C. Sec. 1981 and Title VII, alleging intentional racial discrimination. The district court found in her favor and awarded over $20,000 in back-pay, reinstatement, and accommodations at work for her shoulder injury. Page also sued on the state law claim that she was discriminated against for filing a worker's compensation claim. The jury returned a verdict in her favor for $120,000 actual and $40,000 punitive damages.

THE ALBRIGHT CLAIMS

The first issue critical to sustaining Albright's judgment is whether the hospital, which contracted to operate and manage a facility built and owned by Gregg County, was a "state actor" for purposes of Section 1983. The district court instructed the jury that state action was present:

[F]or the purposes of the Plaintiff's Fourteenth Amendment and Sec. 1983 claims, the Defendants Good Shepherd Hospital and the Board of Trustees of Good Shepherd Hospital are considered to be instrumentalities of the State of Texas and were acting at all times "under the color of law."

You are reminded again that, as a matter of law, the defendants are deemed to have been acting "under the color of law" for all purposes relevant here.

The court's principal reason for this conclusion was "[t]he close nexus here ... between the private management of the hospital and the county's financial and other benefit[s]." We review the court's state action determination independently on appeal, since the question is a mixed one of law and fact. ¹ See Pullman Standard v. Swint, 456 U.S. 273, 287-88 n. 16, 102 S.Ct. 1781, 1789 n. 16, 72 L.Ed.2d 66 (1982).

Whether the conduct of private parties such as Good Shepherd is state action depends upon the specific facts and circumstances surrounding the challenged action. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961); Barnes v. Lehman, 861 F.2d 1383, 1385 (5th Cir.1988). As the Supreme Court recently explained in National Collegiate Athletic Association v. Tarkanian, --- U.S. ----, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988), the typical case raising a state action issue involves a private party's decisive step allegedly causing constitutional harm to the plaintiff, "and the question is whether the state was sufficiently involved to treat that decisive conduct as state action." 109 S.Ct. at 462. Several distinct lines of doctrine have been used to demonstrate sufficient state involvement or "nexus." The state may create a legal framework that governs the conduct. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). Alternatively, a state may delegate its traditional powers to private actors, or it may establish a "symbiotic interrelationship" with a private entity. See, e.g., West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Albright's claim tracks this last line of doctrine. He contends that the "symbiotic interrelationship" between Good Shepherd and Gregg County imbues the hospital's decisions with state action. Twice before we have considered similar state action questions involving county-owned, privately run hospitals, with differing results. See Greco v. Orange Memorial Hospital Corp., 513 F.2d 873, 882 (5th Cir.), cert.

                denied, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975), and Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214 (5th Cir.1987) mod. on other grounds and reh. en banc denied, 819 F.2d 545 (5th Cir.1987). 2   Resolving the state action question here turns on the weight and applicability of these two competing, but not conflicting precedents.  Of the two cases, Good Shepherd cites Greco in its behalf while Jatoi anchors Albright's argument.  We discuss each in turn
                

A. Greco.

In Greco, a physician who performed abortions sought the district court's declaration that the hospital's new policy of refusing to allow elective abortions to be performed in its facilities was unconstitutional. Our court upheld the district court's denial of relief, concluding that no state action was present. Dr. Greco relied primarily upon Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), in which the Supreme Court held that the Eagle Coffee Shoppe's refusal to serve blacks constituted state action in part because the coffee shop was located within, and paid rent to, the City's parking garage facility.

The Greco panel found Burton distinguishable on two grounds, the first and most obvious being that the hospital was not accused of racial discrimination. Hence, the Greco court recognized the maxim that state action is much more likely to be found when racial discrimination is involved. The court explained that:

The potentially...