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

.2 (Filed: August 30, 2017)

Barry H. Dyller [Argued] Theron J. Solomon Dyller Law Firm 88 North Franklin Street Gettysbu rg House Wilkes

- Barre, PA 18701 Attorney s for Plaintiff

–

Appell ee

– 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 R icher

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 171103 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 ramificatio ns 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 u nder 42 U.S.C. § 1983 , claiming she was deprived of her property interest in t he 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 private4 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, staff ing an advisory committee, agree ing on how many students to admit,

a p proving guidelines for c linical t raining, and promoting and marke ting the Program

. In other ways, Geisinger ’s and Bloomsburg’s principal roles in the Program remain distinct

. Geisinger provide s certificates upon completion of its clinic and Bloomsburg conf ers 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 c ollaboration a gre ement states that Geisinger ’s policies

— including its d rug and a lcohol p olicy

— apply to NAP students while participating in the clinic. See App. 1512

. The a greement also provides that Geisinger has sole authority to remove an enrollee from the clinical porti on 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 pro cedures as required by agencies affiliated with the Department of Nursing,” which includes Geisinger

.5 Borrell v. Bloomsburg Univ. , 63 F. Supp. 3d 418, 42 5 (M.D. Pa. 2014) (quoting policy)

. 1

Geisinger ’s drug and alcohol p olicy applies to all its employees and contractors (including cl inical students working there). The p olicy 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 re fusal 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 joi nt employee of Geisinger and Bloomsburg, with Bloomsburg picking up a quarter of his salary. Ric her 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 c ollaboration a greement allows

stu dents 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 G MC ’s d rug and a lcohol p olicy

, which provides no grievance process.6 In 201 2, Richer terminated Angela Borrell for violating Geisinger ’s d rug and a lcohol p olicy 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. I n 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 “noti ced 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 R esources D epartment then met with Borrell and as ked her to take a drug test. During t his 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 dr ug test, stating she “did not want her re cord 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 claim s he told Borrell she might be terminat ed 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 D epartment , Richer decided to dismiss Borrell fr om the Program the next day. He claims he did so in his capacity as D irector of the c linical 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 inf ormed Borrell that she was terminated from the NAP for7 h er 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 H uman R esources and Ficca. The letter was printed on joint GMC /Bloomsburg statione ry 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 , Bo rrell 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 si nce 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 Cou rt 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 Borrel l’s motion for summary judgment with respect to GMC , Richer, and Ficca

, hold ing 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 “bec ause Defendants deprived Borrell of a property interest8 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 in terest 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 Distr ict 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 is sues 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. , 8 36 F.3d 308, 313 (3d Cir. 2016), and decisions regarding qu alified immunity as pure legal issues, Sharp v. Johnson , 66 9 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

mat ter 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).9 III

The primary issue on appeal is whether GMC , Richer,

or Ficca are l iable for denying Borrell due process when she was dismissed from the NAP. B ecause ( A ) GMC and Richer are not state actors with respect to Ri cher’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 cons idered 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 ca ses 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 conce rt 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 c itation omitted). Of seminal importance to this appeal, we have clarified that the relevant question is not whether the private actor and the state have a10 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 S tate itself.” Leshko v. Servis , 423 F.3d 337, 339 (3d Cir. 2005) (emphasis added) (citation omitted). In other words, the
g overnment must be “responsible for the specific conduct of which th e 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 “en d the inquiry” on the state actor question. B orrell 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 ] pur suits” 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 stat e. Simply put, Richer did n ot need permission from Bloomsburg to fire

a Geisinger worker who violated a hospital policy.

In conclud ing 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 closely11 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 D istrict Court found, and Borrell argue s, t hat Geisinger’s termination of Borrell is “fai rly attributable to the

sta te” 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 d iscussed already , the fact that Richer was a joint employee does not answer the question of whether his decision to enforce GMC ’s d rug and a lcohol p olicy 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 S tate is responsible .” L ugar v. Edmondson Oil Co. , 457 U.S. 922, 93 7 ( 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

a greement with G eisinger played any part in creating the policy enforced in this case; the a greement merely made clear that Geisinger ’s employee policies would govern the behavior of clinical students while they were working a t the hospital

. In light of the controlling legal principles we have arti culated , 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 consul ted regarding its contents

,12 “Bloomsburg and Geisinger jointly participated in terminating Borrell from the NAP.” Borrell , 63 F. Supp. 3d at 436. T he Court also state d that because Richer terminated Borrell in his capacity as D irector of the NAP, the decisi on

was made under the auspices of his employment by Bloomsburg and therefore under the color of state law. Id. at 437.

The a greement between Geisinger and Bloomsburg indicates otherwise . It makes clear that Geisinger retain ed 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 , cl aiming he sought to maintain nursing standards at the hospital

. And his capacity was not altered merely because he discussed this decision wi th

— and received input on his letter from

— Ficca and another joi nt

- NAP employee . “Action taken by private entities wi th 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 acti on. 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 a greement, Bloomsburg had no such control.

Notwithstanding his consultation wi th other s, 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 to13 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 immuni ty . 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 right s

. Qualified immunity protects “all bu t 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 cle arly 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 conc luded that graduate st udents at public universities have property interests in continuing their14 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
p rogram

. The District Court pointed to no cases even suggesting such a right and we are aware of no such case. And the dist rict 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).

Further more , 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 a greement between Geisinger and Bloomsburg states that GMC “shall have sole authority and control over all aspects of Clinical Training.” App. 1512. And while th e a greement requires Geisinger to notify Bloomsburg before dismissing a student, Geisinger had the unilateral authority to dismiss students from the clinic al portion of the Pro gram, which would preclude them from obtaining the certificate necessary to beco me 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
t erminate Borrell

, agreement is insufficient to demonstrate liability absent actual authority to make the decision. And without actual decision making authority, Ficca’s ed its, suggestions, and participation in the termination letter do not
amount to a const itutional violation. Cf. McLaughlin v. Watson , 271 F.3d 566, 573 (3d Cir. 2001)

. Additionally

, any process provided by Ficca at Bloomsburg could not have15 force d Geisinger or Richer to change the decision to terminate Borrell from the clinical portion of th e 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 Geis inger .” 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 aff irmatively when asked: “You are one person who Mr. Richer would need to consult [before terminating a clin ical student], correct?” App. 329. But in context, Ficca had claimed she did not know whether Richer was the final decision maker on dismissals of clin ical 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 a greement’s requirement that Blo omsburg had to receive notice of a termination decision, this answer d oes 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. W hile Ficca supervised16 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 e ntitled 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 reasonabl e understanding that she could

no t have provided process for the clinical dismissal eve n 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 Ge isinger , Richer, and Ficca

.

Richer for u niversity business, she did not supervise him in his other capacities

— such as his GMC

- related s upervisory duties . N othing in the NAP agreement gave Bloomsburg or Ficca authority to control a decision by Geisinger or Richer to remove a student from GMC’s clini c, and thus the Program.1 Borrell v. Bloomsburg University et al. No s . 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

. Fo r 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 act ion 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).