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Borrell v. Bloomsburg University

United States Court of Appeals, Third Circuit

August 30, 2017

ANGELA BORRELL, Appellant in 16-3837

          Argued May 24, 2017

         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

          Barry H. Dyller [Argued] Theron J. Solomon Dyller Law Firm Attorneys for Plaintiff-Appellee-Cross-Appellant Borrell

          Thomas S. Giotto Jaime S. Tuite [Argued] Tiffany A. Jenca, Esq. Buchanan Ingersoll & Rooney Attorneys for Appellants Geisinger Medical Center and Arthur Richer

          John G. Knorr, III [Argued] Maryanne M. Lewis Office of Attorney General of Pennsylvania, Keli M. Neary Pennsylvania State Police Office of Chief Counsel Attorneys for Appellee Michelle Ficca

          Seth A. Goldberg Philip H. Lebowitz Duane Morris Attorneys for Amicus Hospital & Healthsystem Association of Pennsylvania

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


          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.


         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 ...

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