Sigmon v. CommunityCare HMO Inc.

• Decision Date: 11 December 2000
• Docket Number: No. 99-5196,PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES,99-5196
• Parties: (10th Cir. 2000) DON SIGMON,, v. COMMUNITYCARE HMO, INC., AN OKLAHOMA CORPORATION, DOING BUSINESS AS COMMUNITY CARE BEHAVIORAL HEALTH SERVICES EAP; MITCHELL GODI, AN INDIVIDUAL,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1121

234 F.3d 1121 (10th Cir. 2000)

DON SIGMON, PLAINTIFF-APPELLANT, v. COMMUNITYCARE HMO, INC., AN OKLAHOMA CORPORATION, DOING BUSINESS AS COMMUNITY CARE BEHAVIORAL HEALTH SERVICES EAP; MITCHELL GODI, AN INDIVIDUAL, DEFENDANTS-APPELLEES.

No. 99-5196

U.S. Court of Appeals, Tenth Circuit

December 11, 2000

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 97-CV-845) Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, Oklahoma for Plaintiff-Appellant.

Jon E. Brightmire (s. Douglas Dodd with him on the brief), Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma for Defendant- Appellees.

Before Baldock, Ebel, and Murphy, Circuit Judges.

Ebel, Circuit Judge.

Don Sigmon ("Sigmon") is an employee of the city of Tulsa, Oklahoma ("Tulsa" or "the City"). In June 1997, Sigmon was randomly selected to undergo testing for the presence of alcohol and narcotics in his bloodstream pursuant to a drug testing policy covering certain of Tulsa's employees. He tested positive for marijuana, and Tulsa conditioned his continued employment upon his completion of a substance abuse program recommended by CommunityCare HMO, Inc. ("CommunityCare"), a private corporation providing services to the City. CommunityCare and Mitchell Godi ("Godi"), an Employee Assistance Program counselor employed by CommunityCare, referred Sigmon to a substance abuse program which Sigmon objected to because of religious content which he found to be disagreeable. Sigmon claims he was thus faced with a choice between enduring repeated offensive religious experiences or losing his job with the City.

Sigmon sued CommunityCare, Godi, (collectively "the Appellees") and the City for conspiring to force him to undergo an offensive religious experience on threat of termination of his employment, in violation of 42 U.S.C. § 1983. The City settled with Sigmon, and consequently Sigmon proceeded with his claims against only CommunityCare and Godi. The district court granted summary judgment for CommunityCare and Godi, holding that they did not act under color of state law as required by § 1983. ¹ Sigmon now appeals, and we AFFIRM.

I. BACKGROUND

A. Tulsa's Drug and Alcohol Program and its Relationship with CommunityCare

The city of Tulsa maintains a policy designed to prevent drug and alcohol abuse by its employees. Pursuant to this policy, Tulsa requires employees in safety-related or otherwise sensitive jobs to submit to random drug and alcohol testing. Typically, employees who test positive are given the opportunity to retain their jobs by (1) passing a "return to work" test demonstrating they are free of drugs and alcohol; (2) submitting to additional periodic testing; and (3) successfully completing substance abuse treatment as provided through an Employee Assistance Program ("EAP") offered by Tulsa to help its employees cope with a variety of personal problems.

In August 1992, Tulsa entered into a contract with CommunityCare ² whereby CommunityCare was to act as an independent contractor providing substance abuse counseling and other services to Tulsa employees referred to it pursuant to Tulsa's EAP. The record shows that CommunityCare identified independent third-party health care providers to supply these services, and then referred Tulsa's employees to those providers for actual treatment. In most cases, CommunityCare recommended an intensive treatment program usually lasting for a period of several weeks, with periodic follow-up treatment for one year. Neither the contract itself nor the EAP program purported to modify Tulsa's existing disciplinary policies or to transfer any authority to discipline employees from Tulsa to CommunityCare. ³ CommunityCare has entered into numerous similar agreements with other public and private entities which it performs in substantially the same manner. CommunityCare's agreement with Tulsa remained in effect throughout the time of the events at issue in this lawsuit.

B. CommunityCare's Actions with respect to Don Sigmon

On June 17, 1997, pursuant to its drug testing policy, Tulsa ordered Sigmon to submit to a random urinalyses to screen for drugs and alcohol. Soon thereafter, a doctor employed by Tulsa notified Sigmon that he had tested positive for marijuana, and Sigmon's supervisor, Don McGlory ("McGlory"), enrolled him in Tulsa's EAP. Sigmon concedes that he had smoked marijuana the evening before he took the test.

As an initial step in entering Tulsa's EAP, Sigmon and McGlory both signed a "Post-Rehabilitation Drug and Alcohol Testing Agreement" dated June 18, 1997 ("the Post-Rehabilitation Agreement"). The Post- Rehabilitation Agreement contains Sigmon's promise, as a condition of his continued employment, to undergo periodic additional drug testing. Further, Sigmon acknowledged that "any unsatisfactory cooperation, compliance or attendance with the Employee Assistance Program's contract provider . . . will result in the initiation of pretermination procedures and disciplinary action."

After signing the Post-Rehabilitation Agreement, Sigmon was sent to see Godi at CommunityCare for assessment and referral to treatment. Godi referred him to an intensive six-week substance abuse treatment program provided by Laureate Psychiatric Clinic and Hospital ("Laureate") which was based on a "12-Step" program of recovery. A devout Christian, Sigmon was offended by the program's references to a self-defined "higher power" instead of the traditional Judeo-Christian figures of God and Jesus Christ, but he nevertheless completed his initial course of treatment.

After Sigmon completed Laureate's initial intensive treatment program, Godi and a Laureate counselor met with Sigmon and McGlory to inform Sigmon that he was being referred for an additional one-year course of follow-up treatment. Godi presented Sigmon with a form entitled "Return to Duty/Post Treatment Agreement" ("Return to Duty Agreement") that: (1) required Sigmon to undergo a "continuing care" program at Laureate and to attend a minimum of two meetings per week for a period of one year of either Alcoholics Anonymous ("AA") or Narcotics Anonymous ("NA"); (2) stated Sigmon "understood . . . that failure to comply with its terms may result in disciplinary action, up to and including termination of [his] employment;" and (3) incorporated the grievance and arbitration procedures of Tulsa's collective bargaining agreement to settle disputes arising under the Return to Duty Agreement. Laureate's AA and NA programs are both based on a "12-Step" method and advance religious ideas similar to those expressed in Laureate's more intensive program.

Both Sigmon and McGlory refused to sign the agreement, and Sigmon heatedly objected to the religious content of the programs. Sigmon alleges that Godi "mentioned" termination at least twice during this meeting. Godi stated in his deposition that he told Sigmon it was his duty to report Sigmon's refusal to comply with the EAP to Tulsa, and concedes he might have told Sigmon his report could prompt Tulsa to begin pretermination proceedings pursuant to the Post-Rehabilitation Agreement Sigmon had entered into with Tulsa.

Godi reported Sigmon's refusal to attend AA and NA meetings to Tulsa's human resources department and participated in a meeting with McGlory and several members of Tulsa's human resources department to discuss possible disciplinary actions against Sigmon. The record shows that Godi may have recommended Sigmon be terminated in the interest of maintaining consistency in Tulsa's drug and alcohol disciplinary actions.

Based on this meeting, McGlory told Sigmon that he had a choice of either attending the meetings, facing termination hearings, or submitting to a formal reprimand and a 30-day suspension from his job. Sigmon continued in his refusal to attend the meetings, and the City began the paperwork necessary to institute hearings leading to Sigmon's possible termination. In response, Sigmon filed the present lawsuit.

C. Procedural History

Sigmon sued Tulsa, CommunityCare, and Godi under the Civil Rights Act of 1871, 42 U.S.C. § 1983, ⁴ alleging that they conspired to force Sigmon to participate in an offensive religious program on threat of termination of his employment with Tulsa, thereby violating his rights under the First and Fourteenth Amendments. Following an evidentiary hearing conducted on September 19, 1997, the district court entered a temporary restraining order enjoining Tulsa from taking any disciplinary action against Sigmon for refusing to participate in a 12- step program, and later issued a preliminary injunction covering the same conduct. On August 11, 1999, the district court entered a consent judgment against Tulsa disposing of all of Sigmon's claims against Tulsa.

In July 1998, CommunityCare and Godi jointly filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that there is no dispute of material fact sufficient to establish that they acted under color of law as required under 42 U.S.C. § 1983. The district court granted the Appellees' motion on September 16, 1998, and Sigmon filed a notice of appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

II. DISCUSSION

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Kaul, 83 F.3d at...