May 24, 2017
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
H. Dyller [Argued] Theron J. Solomon Dyller Law Firm
Attorneys for Plaintiff-Appellee-Cross-Appellant Borrell
S. Giotto Jaime S. Tuite [Argued] Tiffany A. Jenca, Esq.
Buchanan Ingersoll & Rooney Attorneys for Appellants
Geisinger Medical Center and Arthur Richer
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
A. Goldberg Philip H. Lebowitz Duane Morris Attorneys for
Amicus Hospital & Healthsystem Association of
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
HARDIMAN, Circuit Judge.
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.
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.
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).
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.
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.
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 ...