Angela Borrell v. Bloomsburg University

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

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

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

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-12-cv-02123)

District Judge: Honorable A. Richard Caputo

Argued May 24, 2017

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

(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

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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

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

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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.

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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.

1

Bloomsburg’s Student Handbook “also sets forth a

‘review process’” for students suspected of violating its

terms. Borrell, 63 F. Supp. 3d at 426. The Student Nurse

Anesthetist Handbook in the collaboration agreement allows

students to “initiate a grievance” if they have a complaint

about a disciplinary action and commits “to being reasonable

in an attempt to correct [any] offense.” Id. The purported

violation in this case was of GMC’s drug and alcohol policy,

which provides no grievance process.

5

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

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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

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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).

8

III

The primary issue on appeal is whether GMC, Richer,

or Ficca are liable for denying Borrell due process when she

was dismissed from the NAP. Because (A) GMC and Richer

are not state actors with respect to Richer’s decision to

dismiss Borrell and (B) Ficca is entitled to qualified immunity

for her involvement in Borrell’s termination, we hold that no

Defendant is liable to Borrell.

A

First, we must determine whether the conduct of GMC

and Richer should be considered state action. “The Fourteenth

Amendment governs only state conduct, not that of private

citizens.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). So

Borrell’s claim is not cognizable unless she was harmed

“under color of law,” a standard identical to the Fourteenth

Amendment’s “state action” requirement. United States v.

Price, 383 U.S. 787, 794 n.7 (1966).

In Kach, this Court summarized “three broad tests

generated by Supreme Court jurisprudence to determine

whether state action exists” in close cases and they are all

“fact-specific.” 589 F.3d at 646. Those tests are: “(1) whether

the private entity has exercised powers that are traditionally

the exclusive prerogative of the state; (2) whether the private

party has acted with the help of or in concert with state

officials; and (3) whether 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.” Id. (alterations and citation omitted). Of seminal

importance to this appeal, we have clarified that the relevant

question is not whether the private actor and the state have a

9

close relationship generally, but whether there is “such a

close nexus between the State and the challenged action that

seemingly private behavior may be fairly treated as that of the

State itself.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir.

2005) (emphasis added) (citation omitted). In other words, the

government must be “responsible for the specific conduct of

which the plaintiff complains.” Blum v. Yaretsky, 457 U.S.

991, 1004 (1982) (emphasis omitted). And this is true even

when the actor is employed by the state. As we explained in

Mark v. Borough of Hatboro, “an otherwise private tort is not

committed under color of law simply because the tortfeasor is

an employee of the state.” 51 F.3d 1137, 1150 (3d Cir. 1995).

Contrary to Borrell’s argument, then, Richer’s joint

employment with Bloomsburg and GMC’s partnership with

Bloomsburg with respect to the Program do not “end the

inquiry” on the state actor question. Borrell Br. 33.

Rather, the pertinent question is whether Richer was

wearing his Geisinger hat or his Bloomsburg hat when he

decided to terminate Borrell. Actions taken “in the ambit of

[non–state motivated] pursuits” are excluded from state

action. Screws v. United States, 325 U.S. 91, 111 (1945). The

record shows that Richer’s actions were authorized by

Geisinger to enforce its drug and alcohol policy, and not

pursued under any authority granted him by the state. Simply

put, Richer did not need permission from Bloomsburg to fire

a Geisinger worker who violated a hospital policy.

In concluding that Geisinger acted under color of state

law, the District Court focused on the fact that it “was a

willful participant in joint activity, the NAP, with

Bloomsburg.” Borrell, 63 F. Supp. 3d at 436. But as we

noted, that should have been the beginning of the inquiry, not

the end of it. The government must have also been closely

10

involved with the decision to terminate Borrell for that action

to be “fairly attributable to the state.” Crissman v. Dover

Downs Entm’t Inc., 289 F.3d 231, 245 n.18 (3d Cir. 2002).

The District Court found, and Borrell argues, that

Geisinger’s termination of Borrell is “fairly attributable to the

state” for two main reasons: (1) Richer, a joint employee of

GMC and Bloomsburg, terminated Borrell via a letter on

“joint Bloomsburg-Geinsinger station[e]ry”; and (2) Ficca, a

Bloomsburg employee, was involved in the termination

process by providing input to Richer regarding Borrell’s

termination letter and by signing it. Borrell, 63 F. Supp. 3d at

436. As discussed already, the fact that Richer was a joint

employee does not answer the question of whether his

decision to enforce GMC’s drug and alcohol policy by

terminating Borrell was “caused by the exercise of some right

or privilege created by the State or by a rule of conduct

imposed by . . . a person for whom the State is responsible.”

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Richer’s decision was to enforce the hospital’s preexisting

policy requiring employees to participate in drug tests when

asked, and GMC had already fired four other nurses for

violating the same policy. Neither Bloomsburg nor its

agreement with Geisinger played any part in creating the

policy enforced in this case; the agreement merely made clear

that Geisinger’s employee policies would govern the behavior

of clinical students while they were working at the hospital.

In light of the controlling legal principles we have

articulated, the question boils down to which entity—the

hospital or the university—exercised the authority to

terminate Borrell for a violation of Geisinger policies. The

District Court concluded that because Ficca signed the

termination letter and was consulted regarding its contents,

11

“Bloomsburg and Geisinger jointly participated in

terminating Borrell from the NAP.” Borrell, 63 F. Supp. 3d at

436. The Court also stated that because Richer terminated

Borrell in his capacity as Director of the NAP, the decision

was made under the auspices of his employment by

Bloomsburg and therefore under the color of state law. Id. at

437.

The agreement between Geisinger and Bloomsburg

indicates otherwise. It makes clear that Geisinger retained the

authority to unilaterally “exclude a Student from participation

in the Clinical Training” if the student doesn’t comply with a

GMC policy. App. 1514. And when Richer made the decision

to terminate Borrell for violating hospital policy, he acted in

his capacity as a GMC employee, claiming he sought to

maintain nursing standards at the hospital. And his capacity

was not altered merely because he discussed this decision

with—and received input on his letter from—Ficca and

another joint-NAP employee. “Action taken by private

entities with the mere approval or acquiescence of the State

is not state action.” Kach, 589 F.3d at 649 (citation omitted).

Ficca’s signature on the termination letter purports to do

nothing more than concur with Richer’s decision, which is

not enough for state action. Rather, the state must have

“exercised control over the particular conduct that gave rise to

the plaintiff’s alleged constitutional deprivation.” Id. Under

the collaboration agreement, Bloomsburg had no such

control.

Notwithstanding his consultation with others, Richer

made the decision to fire someone working at GMC due to

her violation of a preexisting policy of the hospital, and he

had the authority to do so based on his position there. “[T]he

authority of state officials . . . was wholly unnecessary to

12

effectuate Borrell’s dismissal from the NAP.” GMC Third-

Step Br. 18. Accordingly, we must reverse the District

Court’s holding that GMC and Richer were state actors.

B

Turning to the case against Ficca, we hold that she is

entitled to qualified immunity. We do so because it was not

clearly established that Ficca’s agreement with Richer’s

decision, which she reasonably believed to be within his

authority as an employee of GMC, violated Borrell’s

constitutional rights.

Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley

v. Briggs, 475 U.S. 335, 341 (1986). If a government

official—in this case, Ficca—reasonably thinks her conduct

complies with the law, she is shielded from liability. See

Pearson v. Callahan, 555 U.S. 223, 244 (2009). Ficca is

entitled to qualified immunity as long as she does not violate

a “clearly established” constitutional or federal right. Sharp,

669 F.3d at 159 (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)). “A right is clearly established for qualified immunity

purposes where its contours are ‘sufficiently clear that a

reasonable official would understand that what [s]he is doing

violates that right.’” Id. (quoting Saucier, 533 U.S. at 202). In

other words, the application of the right to the issue at hand

must be “beyond debate.” Zaloga v. Borough of Moosic, 841

F.3d 170, 175 (3d Cir. 2016).

The record indicates that it is hardly “beyond debate”

that Ficca violated Borrell’s due process rights. Although

many cases have concluded that graduate students at public

universities have property interests in continuing their

13

education, see Borrell, 63 F. Supp. 3d at 458 (citing cases),

those cases do not speak to the right of a clinical student at a

private hospital to a hearing or comparable process before

termination—even if the natural consequence of that

termination is an inability to complete an educational

program. The District Court pointed to no cases even

suggesting such a right and we are aware of no such case.

And the district court cases cited cannot clearly establish law

for qualified immunity purposes in any event. See Camreta v.

Greene, 563 U.S. 692, 709 n.7 (2011).

Furthermore, there is no evidence of record to suggest

that Ficca could have done anything to stop Richer’s decision

to deny additional process to Borrell before terminating her

from the Program. The agreement between Geisinger and

Bloomsburg states that GMC “shall have sole authority and

control over all aspects of Clinical Training.” App. 1512. And

while the agreement requires Geisinger to notify Bloomsburg

before dismissing a student, Geisinger had the unilateral

authority to dismiss students from the clinical portion of the

Program, which would preclude them from obtaining the

certificate necessary to become a nurse anesthetist. And if

Ficca had no authority over Richer’s decision to terminate

Borrell, a reasonable official in Ficca’s position would not

have known that she owed Borrell any more process.

As for Ficca’s concurrence with Richer’s decision to

terminate Borrell, agreement is insufficient to demonstrate

liability absent actual authority to make the decision. And

without actual decisionmaking authority, Ficca’s edits,

suggestions, and participation in the termination letter do not

amount to a constitutional violation. Cf. McLaughlin v.

Watson, 271 F.3d 566, 573 (3d Cir. 2001). Additionally, any

process provided by Ficca at Bloomsburg could not have

14

forced Geisinger or Richer to change the decision to terminate

Borrell from the clinical portion of the Program based on her

violation of hospital policy. As Ficca notes by way of

analogy, if she “had dismissed Borrell from the Program for .

. . failing grades or cheating on an examination . . . no one

would say that she was entitled to a hearing from Geisinger.”

See Ficca Br. 25. Likewise, it’s not clear that Borrell was

owed a hearing from Ficca before Geisinger dismissed her

from the Program.

To support her claim that Ficca supervised Richer’s

termination decision, Borrell notes that Ficca responded

affirmatively when asked: “You are one person who Mr.

Richer would need to consult [before terminating a clinical

student], correct?” App. 329. But in context, Ficca had

claimed she did not know whether Richer was the final

decisionmaker on dismissals of clinical students and merely

asserted that Richer likely had to “discuss[]” any such

decision with other parties to make sure he was correctly

applying “policies that have been established.” App. 328–29.

Given the collaboration agreement’s requirement that

Bloomsburg had to receive notice of a termination decision,

this answer does not show that Ficca had authority to prevent

Richer’s decision. It shows only that she had to be notified of

it. 2

2

Borrell also claims that Ficca was “Richer’s direct

supervisor at [Bloomsburg],” and is thus liable because she

“did not take any steps to prevent her subordinate Richer

from sending the termination letter.” Borrell Br. 61 (citing

App. 553–54). But in the deposition to which Borrell refers,

Richer stated only that Ficca was “above” him “[i]n the

University hierarchy.” App. 554. While Ficca supervised

15

In responding to Ficca’s qualified immunity argument,

Borrell seems to miss the relevant question—would a

reasonable official have known that her actions violated a

clearly established right? Even if, as Borrell claims, Ficca

should have known that Richer’s actions were disciplinary

and not academic, and Borrell was thus entitled to more

process from someone, this does not answer the question of

whether Ficca was that person. Given all the factors discussed

herein, and given her reasonable understanding that she could

not have provided process for the clinical dismissal even if

she thought it was necessary in the abstract, the District Court

should have granted qualified immunity to Ficca.

IV

For the reasons stated, we will reverse the District

Court’s summary judgment and remand the case for entry of

judgment in favor of Geisinger, Richer, and Ficca.

Richer for university business, she did not supervise him in

his other capacities—such as his GMC-related supervisory

duties. Nothing in the NAP agreement gave Bloomsburg or

Ficca authority to control a decision by Geisinger or Richer to

remove a student from GMC’s clinic, and thus the Program.

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Borrell v. Bloomsburg University et al.

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

Judge Roth, concurring in part and concurring in the

judgment:

In regard to Part III.B, I would hold that Ficca and

Bloomsburg University’s participation in the dismissal of

Borrell from the program was academic, not disciplinary.

Although Borrell’s academic marks were satisfactory, once

she had been dismissed from the clinical portion of the NAP

program by Geisinger, she was no longer academically

qualified to complete the NAP. For that reason, she was not

being dismissed from the Bloomsburg University portion of

the program because she refused to take the drug test. She

was being dismissed because she was no longer academically

eligible to complete the program. Clearly, this action is

academic, rather than disciplinary.

Moreover, because Ficca and Bloomsburg University’s

action in dismissing Borrell from the program was not

disciplinary, she in fact received all the due process to which

she was entitled. See, e.g., Board of Curators of the

University of Missouri v. Horowitz, 435 U.S. 78, 85 (1978).

1