Borrell v. Bloomsburg Univ.

Decision Date21 October 2014
Docket NumberCivil Action No. 3:CV–12–2123.
Citation63 F.Supp.3d 418
PartiesAngela BORRELL, Plaintiff, v. BLOOMSBURG UNIVERSITY, Geisinger Medical Center, and Arthur F. Richer and Michelle Ficca in their individual and official capacities, Defendants.
CourtU.S. District Court — Middle District of Pennsylvania

Barry H. Dyller, Law Office of Barry H. Dyller, Wilkes–Barre, PA, for Plaintiff.

Jaime S. Tuite, Thomas S. Giotto, Buchanan Ingersoll & Rooney, P.C., Pittsburgh, PA, Keli M. Neary, Office of Attorney General, Maryanne M. Lewis, Pennsylvania Office of Attorney General, Harrisburg, PA, for Defendants.


A. RICHARD CAPUTO, District Judge.

Presently before the Court are three motions: Plaintiff Angela Borrell's (Borrell) Motion for Partial Summary Judgment, (Doc. 86); Defendant Michelle Ficca's (Dr. Ficca) Motion for Summary Judgment, (Doc. 114); and Defendants Geisinger Medical Center (Geisinger) and Arthur Richer's (Richer) Motion for Summary Judgment, (Doc. 116).1 Borrell was dismissed as a student from Bloomsburg University (Bloomsburg) and Geisinger's collaborative Nurse Anesthesia Program (the “NAP”) in September 2012 after she refused to submit to a drug test. Shortly thereafter, Borrell commenced this action asserting, among others claims, deprivation of her equal protection and due process rights. With discovery now complete, Borrell seeks summary judgment as to liability on her procedural due process liberty and property interest claims, while Defendants move for summary judgment on all claims.

Because Borrell fails to present any evidence that she was treated differently from an individual that was “alike in all relevant aspects,” Defendants will be granted summary judgment on the “class of one” equal protection claim. Furthermore, since Defendants did not make public any false statements in relation to Borrell's dismissal from the NAP, Defendants' motion for summary judgment on the due process liberty interest claim will be granted. Conversely, 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.

I. Factual Background
A. The Nurse Anesthesia Program

In 2006, Richer was instructed by Geisinger's2 Executive Leadership Team to explore options with universities in order to create a joint or collaborative accreditation program. (Doc. 115, Defendants' Statement of Material Facts, “Defs.' SMF,” ¶ 1; Doc. 139, Plaintiff's Counterstatement of Facts, “Plf.'s CSF,” ¶ 1.) The following year, Geisinger decided to form a collaborative program, known as the Nurse Anesthesia Program (the “NAP”), with Bloomsburg, an educational institution of the System of Higher Education of the Commonwealth of Pennsylvania that provides a Masters of Science degree accredited by the Commission of Collegiate Nursing Education in the area of nursing for graduates of accredited programs. (Defs.' SMF, ¶¶ 2–3; Plf.'s CSF, ¶¶ 2–3.) The NAP was designed to be distinct from Geisinger's previous programs for registered nurses. (Defs.' SMF, ¶ 4; Plf.'s CSF, ¶ 4.) Under the NAP, students in the program are given the opportunity to perform hands-on work at Geisinger under the supervision of Certified Registered Nurse Anesthetists. (Defs.' SMF, ¶ 5; Plf.'s CSF, ¶ 5.)

In August 2007, Geisinger and Bloomburg entered into the “Collaboration Agreement for Nurse Anesthesia Education” (the “Agreement”). (Plf.'s Ex. 10.) As set forth in the Agreement, Bloomsburg “wishes to collaborate with Geisinger to support the Academic Training portion of the Program and provide the Program educational expertise and facilities,” and Geisinger “wishes to collaborate with University to support the Clinical Training portion of the Program and provide the Program clinical expertise and facilities.” (Id. ) The Agreement provides that “none of the provisions of this Agreement are intended to create nor shall be deemed or construed to create any relationship between the parties other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of this Agreement.” (Id. at ¶ 9.7.)

The parties' duties and responsibilities are enumerated in the Agreement. For example, students that complete the Clinical Training portion of the NAP receive a Certificate of Completion from Geisinger, while Bloomsburg provides a MS Degree in Nursing to students that successfully complete the program. (Id. at ¶ 2.1) Both parties were also required to assist with meeting the necessary criteria for accreditation standards. (Id. at ¶ 2.2.) The Agreement further provides that “[b]oth parties shall:” (1) “develop a joint Admissions Committee to finalize admission criteria and recommend admission of Students into the Program;” (2) “designate at least three (3) representatives to serve on an advisory council for the program;” (3) “establish and mutually agree upon the number of Students that will be allowed to participate in the Program for each class;” (4) “develop and approve the curricula for Students while they are participating in the Clinical Training at Geisinger;” and (5) “develop guidelines for the Clinical Training portion of the Program with incorporation into University's Department of Nursing Graduate Student Handbook and based on University academic policies.” (Id. at ¶ 2.2.) The Agreement also requires both parties to promote and market the NAP. (Id. at ¶ 2.6.) Bloomsburg further agreed to “advise Students that Students will, while participating in the Clinical Training portion of the Program, be expected to adhere to all applicable policies and standards of Geisinger,” including Geisinger's Drug and Alcohol Policy. (Id. at ¶ 2.8.) And, [s]ubject to the terms of this Agreement, Geisinger shall have sole authority and control over all aspects of Clinical Training provided to Students pursuant to this Agreement including, without limitation, designation of patients and facilities.” (Id. at ¶ 2.4.) Similarly, the Agreement provides that Geisinger may exclude a Student from participation in the Clinical Training if (i) the Student's performance is unsatisfactory to Geisinger; (ii) the Student fails to comply with applicable policies and standards of Geisinger; or (iii) the Student's health status may prevent attendance and successful completion of the Clinical Training portion of the Program. Geisinger will notify University in the event a student is excluded.” (Id. at ¶ 8.2.)

As to compensation, Bloomsburg is required to pay Geisinger “at the beginning of each semester, at the rate of 50% of the billed tuition and related fees.” (Id. at ¶ 5.1.) Bloomsburg is also obligated to hire “the Program Director as a full-time tenure track graduate faculty member of the Department of Nursing.” (Id. ) “Program Director” is defined as:

the individual interviewed, approved and employed by both University and Geisinger to oversee the Program and serve as the liaison between Geisinger and University relative to the Program. As an employee of both Geisinger and University, Program Director shall be entitled to any benefits or entitlements associated with such employment with each party in accordance with each party's policies....

(Id. at ¶ 1.4.)

The Agreement provides that the NAP is approximately thirty-three (33) months in duration. (Id. at ¶ 2.2.) Approximately twenty-three (23) to twenty-five (25) months are dedicated to the Clinical Training portion of the program. (Id. ) During the Clinical Training portion of the NAP, the students work with and under the supervision of Geisinger employees. (Defs.' SMF, ¶ 41; Plfs. CSF, ¶ 41.) Geisinger owns the buildings in which it operates. (Defs.' SMF, ¶ 37; Plfs. CSF, ¶ 37.)

Geisinger and Bloomsburg have joint employees. (Doc. 88, Plaintiff's Statement of Material Facts, “Plf.'s SMF,” ¶¶ 10–11; Doc. 132, Defendants' Counterstatement of Facts, “Defs.' CSF,” ¶¶ 10–11.) Defendant Richer worked as the Interim Program Director from 2008 until 2010 solely as a Geisinger employee. (Defs.' SMF, ¶ 23; Plfs. CSF, ¶ 23.) In 2010, once students arrived to begin the clinical training in the NAP, Richer became a joint employee of Bloomsburg and Geisinger. (Richer Dep., 375:10–13; Plf.'s Ex. 11.) Richer was the Director of the NAP at that time. (Plf.'s SMF, ¶ 10; Defs.' CSF, ¶ 10.) Richer's pay did not change after he became a joint employee of Bloomsburg and Geisinger, as he continued to receive a yearly salary of $190,000.00. (Defs.' SMF, ¶ 26; Plfs. CSF, ¶ 26.) However, Bloomsburg began paying approximately twenty-five percent (25%) of Richer's salary, in the annual amount of $45,225.97. (Defs.' SMF, ¶ 27; Plfs. CSF, ¶ 27.) Prior to becoming a joint employee of Bloomsburg and Geisinger, Richer worked exclusively for Geisinger. (Defs.' SMF, ¶ 28; Plfs. CSF, ¶ 28.)

Other joint Bloomsburg–Geisinger employees were Brenda Wands (“Dr. Wands”) and Debra Minzola (“Minzola”). (Plf.'s SMF, ¶ 11; Defs.' CSF, ¶ 11.) Dr. Wands was the assistant Program Director, (Dr. Wands Dep., 16:1–6, 17:3–8), and Minzola is now the assistant Program Director. (Minzola Dep., 11:4–7.)

The NAP makes up only a small percentage of Geisinger's annual budget. (Defs.' SMF, ¶ 53; Plfs. CSF, ¶ 53.) For example, in 2012, Geisinger's overall budget was $65,485,379, while its annual investment in the NAP is approximately $870,979. (Defs.' SMF, ¶¶ 54–55; Plfs. CSF, ¶ 54–55.) And, while Geisinger indicates that its net loss on its investment in the NAP is approximately $749,979 per year, (Defs.' SMF, ¶ 56), Geisinger leadership desired to develop the NAP “as a source of recruitment for future nurse anesthetists to staff the Geisinger entities.” (Richer Dep., 56:16–19.)

B. Bloomsburg and Geisinger Policies and Procedures

Bloomsburg's Department of Nursing prepared a Graduate Student Handbook for its students seeking a Master of Science in...

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