Borrell v. Bloomsburg Univ. Arthur F. Richer

• Decision Date: 30 August 2017
• Docket Number: Nos. 15-2823, 16-3837, 16-3959.,s. 15-2823, 16-3837, 16-3959.
• Citation: 870 F.3d 154
• Parties: Angela BORRELL, Appellant in 16-3837 v. BLOOMSBURG UNIVERSITY Arthur F. Richer; Geisinger Medical Center, Appellants in 15-2823 Michelle Ficca, Appellant in 16-3959
• Court: U.S. Court of Appeals — Third Circuit

870 F.3d 154

Angela BORRELL, Appellant in 16-3837

v. BLOOMSBURG UNIVERSITYArthur F. Richer; Geisinger Medical Center, Appellants in 15-2823Michelle Ficca, Appellant in 16-3959

Nos. 15-2823, 16-3837, 16-3959.

United States Court of Appeals, Third Circuit.

Argued May 24, 2017

Filed: August 30, 2017

Barry H. Dyller [Argued], Theron J. Solomon, Dyller Law Firm, 88 North Franklin Street, Gettysburg House, Wilkes-Barre, PA 18701, Attorneys for Plaintiff–Appellee–Cross-Appellant Borrell

Thomas S. Giotto, Jaime S. Tuite [Argued], Tiffany A. Jenca, Esq., Buchanan Ingersoll & Rooney, 301 Grant Street, One Oxford Centre, 20th Floor, Pittsburgh, PA 15219, Attorneys for Appellants Geisinger Medical Center and Arthur Richer

John G. Knorr, III [Argued], Maryanne M. Lewis, Office of Attorney General of Pennsylvania, Strawberry Square, Harrisburg, PA 17120, Keli M. Neary, Pennsylvania State Police, Office of Chief Counsel, 1800 Elmerton Avenue, Harrisburg, PA 17110, Attorneys for Appellee Michelle Ficca

Seth A. Goldberg, Philip H. Lebowitz, Duane Morris, 30 South 17th Street, United Plaza, Philadelphia, PA 19103, Attorneys for Amicus Hospital & Healthsystem Association of Pennsylvania

Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal—which raises questions involving the state action doctrine and the Due Process Clause of the Fourteenth Amendment—has important ramifications for private hospitals that partner with public universities. Angela Borrell, a student working at a private hospital through a public university's clinical program, was dismissed for refusing to take a drug test in violation of hospital policy. She sued under 42 U.S.C. § 1983, claiming she was deprived of her property interest in the program without due process. Contrary to the judgment of the District Court, we hold that Defendants are entitled to judgment as a matter of law.

I

In 2007, Geisinger Medical Center (Geisinger or GMC) partnered with Bloomsburg University to establish the Nurse Anesthetist Program (NAP or Program). A private hospital, Geisinger runs the "Clinical Training portion of the Program" for the aspiring nurse anesthetists while Bloomsburg, a public university, teaches them in the classroom. App. 1510. The Program operates subject to a written collaboration agreement that provides, among other things, that Geisinger and Bloomsburg will cooperate by: establishing a joint admissions committee, staffing an advisory committee, agreeing on how many students to admit, approving guidelines for clinical training, and promoting and marketing the Program. In other ways, Geisinger's and Bloomsburg's principal roles in the Program remain distinct. Geisinger provides certificates upon completion of its clinic and Bloomsburg confers Master of Science degrees to students who complete both the coursework and the clinical component.

NAP students in Geisinger's clinic administer medical care to patients under the supervision of Geisinger employees. Accordingly, the collaboration agreement states that Geisinger's policies—including its drug and alcohol policy—apply to NAP students while participating in the clinic. See App. 1512. The agreement also provides that Geisinger has sole authority to remove an enrollee from the clinical portion of the NAP due to unsatisfactory performance or failure "to comply with applicable policies and standards of Geisinger." App. 9. Likewise, Bloomsburg's Student Handbook requires students to "comply with the drug and alcohol policies and drug testing procedures as required by agencies affiliated with the Department of Nursing," which includes Geisinger. Borrell v. Bloomsburg Univ. , 63 F.Supp.3d 418, 425 (M.D. Pa. 2014) (quoting policy).¹

Geisinger's drug and alcohol policy applies to all its employees and contractors (including clinical students working there). The policy states that drug tests "may be administered upon reasonable suspicion of substance abuse, (this may include [individual] situations ... where HR is made aware of alleged drug/alcohol use and deems it as reasonable cause to test the employee)." App. 1529. Any Geisinger worker "who refuses to cooperate in any aspect [of the testing process] ... shall be subject to disciplinary action, including termination, for a first refusal or any subsequent refusal." App. 1527. The policy does not provide for any pre-termination hearing or process.

The Director of the NAP at all times relevant to this case was a Geisinger nurse anesthetist named Arthur Richer. In that capacity, Richer became a joint employee of Geisinger and Bloomsburg, with Bloomsburg picking up a quarter of his salary. Richer managed the clinical component of the NAP at Geisinger while Michelle Ficca (Bloomsburg's Chair of Nursing) oversaw the Program's academic component.

In 2012, Richer terminated Angela Borrell for violating Geisinger's drug and alcohol policy by refusing to take a drug test when asked. Borrell, who previously had been a registered nurse at GMC, enrolled in the NAP in 2011 and began her clinical work in 2012. In September 2012, another nurse reported to Geisinger's Assistant Director of the NAP that Borrell used cocaine and "acted erratically" on a recent trip to New York. Borrell , 63 F.Supp.3d at 427. This claim was relayed to Richer, who had previously "noticed that Borrell appeared disheveled on a few occasions." Id. Richer discussed the allegation with three other GMC employees and Ficca—his counterpart at Bloomsburg. Richer and a member of Geisinger's Human Resources Department then met with Borrell and asked her to take a drug test. During this meeting, which lasted about an hour, Borrell asked several questions about the reason for the test and called her mother for advice. Borrell eventually refused to take the drug test, stating she "did not want her record to show that she submitted to a drug/urine screen." Id. at 428. Richer informed Borrell that she would have "no option to test later" and claims he told Borrell she might be terminated for refusing the test, but Borrell responded that she was willing to "face the consequences."

Geisinger Br. 10. Borrell claims she was warned of "consequences" generally, but not termination. Borrell , 63 F.Supp.3d at 428.

After consulting with Geisinger's Human Resources Department, Richer decided to dismiss Borrell from the Program the next day. He claims he did so in his capacity as Director of the clinical training portion of the NAP, and that Bloomsburg and Ficca played no part in the decision—though he informed them of it. In a September 25, 2012 letter, Richer informed Borrell that she was terminated from the NAP for her refusal to take a drug test. A draft of that letter was circulated among Geisinger Human Resources, Ficca, and Richer, who "all provided comments and suggestions as to the contents of the letter." Id. at 429. Richer then sent a final copy to Human Resources and Ficca. The letter was printed on joint GMC/Bloomsburg stationery and Richer and Ficca signed it. Richer signed as the "Director of the NAP," and Ficca signed indicating that she "reviewed the above information and agree[d] with the decision to terminate Angela Borrell from the ... Program." Id. (first alteration in original).

After she received the letter terminating her from the Program, Borrell tried to contact "Richer and others at both Geisinger and Bloomsburg ... to state her willingness to submit to a drug test." Id. That request was denied. Borrell then requested, but did not receive, a formal hearing from Bloomsburg to contest her termination from the Program. Ficca replied that since Bloomsburg had to honor Geisinger's drug policy, disqualification from GMC's clinic made her ineligible to complete her coursework at Bloomsburg necessary to complete the Program.

Borrell then commenced a § 1983 action in the United States District Court for the Middle District of Pennsylvania against GMC, Richer, Bloomsburg, and Ficca for, among other things, violation of her due process right to a pre-deprivation hearing. The District Court granted Borrell's motion for summary judgment with respect to GMC, Richer, and Ficca, holding them liable for denying Borrell due process. Essential to its holding, the District Court found that GMC and Richer were state actors and that Ficca was not entitled to qualified immunity. The Court then concluded that "because Defendants deprived Borrell of a property interest while acting under color of state law when they dismissed her from the NAP without due process, her motion for summary judgment as to liability on the procedural due process deprivation of property interest claim will be granted." Id. at 423. The case was then tried to a jury on the issue of damages. The jury awarded Borrell $415,000 in compensatory damages and $1,100,000 in punitive damages. Later granting the Defendants' remittitur motions, the District Court reduced Borrell's compensatory damages to $250,000 and her punitive damages to $750,000.

GMC, Richer, and Ficca timely appealed the adverse summary judgment along with other issues from the subsequent trial.

II

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over both "orders entered on motions for summary judgment," Mancini v. Northampton Cty. , 836 F.3d 308, 313 (3d Cir. 2016), and decisions regarding qualified immunity as pure legal issues, Sharp v. Johnson , 669 F.3d 144, 159 (3d Cir. 2012).

Summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In considering a summary judgment decision, "we view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Blunt v. Lower Merion Sch. Dist. , 767 F.3d 247, 265 (3d Cir. 2014) (citation omitted).

III

The primary issue...