On Appeal from the United States District Court for the Western District of Pennsylvania On Appeal from the United States District Court for the Eastern District of Pennsylvania
Before: ADAMS and BECKER, Circuit Judges, and SAROKIN, District Judge.*fn*
These consolidated appeals present the question whether the recent Supreme Court decisions in Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982); and Blum v. Yaretsky, 457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982), in effect overruled this court's decision in Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977) (in banc), which held that the University of Pittsburgh (and by implication Temple University) are "state actors" for purposes of 42 U.S.C. § 19983.
The district courts reached differing results. In Krynicky the district court concluded that the Lugar trilogy had undermined Braden, and held that, because the Commonwealth of Pennsylvania had not particiated with the University of Pittsburgh in making the faculty tenure decision challenged by Krynicky, the University's decision was not subject to the constraints of the fourteenth amendment. In Schier the district court reached the opposite result, holding that Braden was still controlling, and that the Commonwealth had so far insinuated itself into the operation of Temple University that the institution was subject to the mandates of the fourteenth amendment in connection with Schier's claim of retaliatory discharge.
Because we believe that Braden has not been overruled by the Lugar trilogy, wer reverse in Krynicky and affirm in Schier.
I. FACTUAL AND PROCEDURAL HISTORY
Harry Krynicky, an Assistant Professor of English at the University of Pittsburgh, brought suit against the University and various administrative officials under 42 U.S.C. § 1983, alleging that he had a "property" and "liberty" interest in his employment contract within the meaning of the fourteenth amendment, and that the University infringed those interests when it failed to notify him in a timely fashion of its decision to deny him tenure. In addition, Krynicky alleged that the tenure process generally denied him due process, and that the decision to deny him tenure was made in retaliation for his outspoken criticism of the University administration and his unorthodox teaching methods.*fn1 The linchpin of Krynicky's claim for purposes of this appeal is that the University's actions were taken "under color of state law" within the meaning of § 1983 because of the relationship between the Commonwealth of Pennsylvania and the University.
The University and the individual defendants moved for summary judgment, but did not contest the existence of state action. The district court granted the motions in part.*fn2 Defendants then amended their answer to assert that there was no state action as required by § 1983, and again moved for summary judgment. The district court thereupon granted the motion as to the remaining claims, stating that the reasoning of Rendell-Baker and Blum essentially superseded the Third Circuit's analysis in Braden, and that, therefore, Braden did not control. The court held that "the receipt of revenue from the state, membership of state nominees on the University's Board of Trustees, and statutory recognition that the University is part of the state's system of higher education are not sufficient to make the University's employment policies state decisions." Krynicky v. University of Pittsburgh, 563 F. Supp. 788, 789 (W.D. Pa. 1983).
Rosemary Schier, who was an employee of Temple University Hospital from September 1979 through September 3, 1981, brought suit against the University alleging that during the course of her employment, she was discriminated against on grounds of her sex, and that her supervisor had sexually harrassed her, had retaliated against her for having filed internal complaints, and had forced her to sign a resignation memorandum. Schier sought relief under 42 U.S.C. § 1983 and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
At the close of discovery, Temple moved for summary judgment on all claims, asserting that the Title VII claim was time-barred and that Schier had not presented any facts to support her claim that Temple had acted under color of state law for the purposes of § 1983. The district court granted summary judgment on Schier's Title VII claim, but denied Temple's motion on the § 1983 claim, holding that, under the symbiotic relationship test for state action articulated in Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961), the state had a sufficiently close relationship with Temple that actions taken by Temple were subject to constitutional scrutiny under section 1983. In reaching its decision, the district court considered the applicability of the Lugar trilogy to its decision, but concluded that Blum and Rendell-Baker did not overrule Burton, and that, therefore, the Third Circuit's opinion in Braden was still good law. Schier v. Temple University, 576 F. Supp. 1569, slip op. at 19-20 (E.D. Pa. 1984). However, recognizing that another district court in the circuit hadreached the opposite result in the Krynicky case, the court certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) the question "whether, for the purposes of 42 U.S.C. § 1983, acts performed by employees of a statutorily designated "state-related" institution of higher education such as Temple University constitute "state action." We agreed to hear the appeal.
A. The State Action Requirement and the State ...