United States District Court, M.D. Pennsylvania
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For Angela Borrell, Plaintiff: Barry H. Dyller, Law Office of Barry H. Dyller, Wilkes-Barre, PA.
For Bloomsburg University, Michelle Ficca, Defendants: Keli M. Neary, Office of Attorney General, Harrisburg, PA; Michael Scott Ferguson, Pennsylvania State System of Higher Education, Harrisburg, PA.
For Geisinger Medical Center, Arthur F. Richer, Defendants: Emilie R. Hammerstein, Jaime S. Tuite, Thomas S. Giotto, Buchanan Ingersoll & Rooney, P.C., Pittsburgh, PA.
A. Richard Caputo, United States District Judge.
Presently before the Court are motions to dismiss Plaintiff Angela Borrell's Amended Complaint filed by Defendants Bloomsburg University and Michelle Ficca (Doc. 29) and Geisinger Medical Center and Arther F. Richer. (Doc. 32.) Angela Borrell, formerly a student in the Nurse Anesthesia Program offered by Bloomsburg University in partnership with Geisinger Medical Center, contends Defendants breached the terms of their contractual agreements and violated her due process and equal protection rights when she was expelled from the program. The motions to dismiss will be granted in part and denied in part. Because the claims against Bloomsburg University, Michelle Ficca in her official capacity, and Arthur F. Richer in his official capacity as a Bloomsburg University employee are barred by Eleventh Amendment immunity, these claims will be dismissed. Furthermore, since neither the Bloomsburg University Department of Nursing Handbook nor the Geisinger Medical Center Drug and Alcohol Policy created binding contracts, the breach of contract claims will be dismissed. However, because Angela Borrell adequately alleges claims for the violation of her Fourteenth Amendment due process and equal protection rights, she will be permitted to proceed on these claims.
The Amended Complaint alleges the following:
Plaintiff Angela Borrell (" Borrell" ), at all times relevant to this action, was a student in the Bloomsburg University Nurse Anesthesia Program with a 3.69 GPA through the Fall 2012 semester. ( Am. Compl., ¶ 15.) Defendants in this action are Arthur F. Richer (" Richer" ), Michelle Ficca (" Ficca" ), Bloomsburg University (" Bloomsburg" ), and Geisinger Medical Center (" Geisinger" ). Defendant Richer is the Director of the Bloomsburg University Nurse Anesthesia Program. ( Id. at ¶ 5.) Defendant Ficca is the Chairperson of the Bloomsburg University Department of Nursing. ( Id. at ¶ 6.) Defendant Bloomsburg is an institute of higher education under the control and operation of the Commonwealth of Pennsylvania by virtue of its membership in the Pennsylvania State System of Higher Education. ( Id. at ¶ 2.) Defendant Geisinger is a Pennsylvania entity providing health care services. ( Id. at ¶ 3.)
Bloomsburg, by way of its Department of Nursing, partnered with Geisinger to provide a Nurse Anesthesia Program with accompanying certifications and/or degrees. ( Id. at ¶ 4.) Students in the Nurse Anesthesia Program are governed by the code of conduct established by the Bloomsburg University Nursing Department Handbook (the " Handbook" ). ( Id. at ¶ 11.) The Handbook outlines standards of conduct for students, as well as the processes and procedures for disciplining students that fail to comply with those standards. ( Id. at ¶ 12.) Students in the Nurse Anesthesia Program performing clinical hours are also governed by the Geisinger Drug and Alcohol Policy (the " Drug Policy" ). ( Id. at ¶ 13.) The Drug Policy provides disciplinary procedures for those students in the Nursing Anesthesia Program who deviate from the applicable standards of conduct. ( Id. at ¶ 14.) The Bloomsburg Nurse Anesthesia Program curriculum requires students to complete a
set number of clinical training hours at Geisinger involving hands-on tasks while under observation by licensed anesthetists. ( Id. at ¶ 10.)
On September 24, 2012, Borrell was summoned from her clinical training to speak with Richer. ( Id. at ¶ 17.) Richer indicated that he had noticed a change in her appearance and demeanor. ( Id. at ¶ 18.) Borrell found the comments surprising, as she had never been reprimanded about her appearance or demeanor by her clinical supervisors, professors, or Ficca. ( Id. at ¶ 19.) Borrell asked Richer to further explain his concerns. He refused, and instead requested her to submit to a drug test. ( Id. at ¶ ¶ 20-21.) Borrell was shocked by the implication that she was on drugs because she was not, and had never been, on any type of illegal drug. ( Id. at ¶ 22.) Borrell informed Richer that she was not on drugs and that she did not want her school record to indicate that she was administered a drug test. ( Id. at ¶ ¶ 23-24.) Borrell was told by Richer to immediately comply with the drug test request or she would " face the consequences." ( Id. at ¶ 25.)
During this conversation, Richer never identified the specific provisions of the Handbook or Drug Policy that Borrell was suspected of violating, the provisions requiring immediate compliance with the drug test request, or the provisions authorizing the administration of a drug test in Borrell's circumstances. ( Id. at ¶ ¶ 26-27; 49-54.) Richer further did not identify the consequences Borrell would face if she failed to comply with the demand for a drug test, or what provisions of the Handbook or Drug Policy authorized the threatened consequences. ( Id. at ¶ ¶ 28-29.)
Because Richer refused to explain the basis of his accusations or the consequences she could face, Borrell believed Richer was hiding his reasoning for requesting her to submit to a drug test. ( Id. at ¶ 30.) Borrell informed Richer that she wanted the opportunity to discuss the request with her parents. ( Id. at ¶ 32.) After talking with her parents, she decided to submit to the drug test. ( Id. at ¶ 33.)
Early the following morning, Borrell called Richer's personal cell phone to advise him that she would comply with his request. ( Id. at ¶ 34.) Since Richer did not answer his cell phone, Borrell called his office. ( Id. at ¶ 35.) Richer's secretary stated that he was in a meeting and would return her call. ( Id. at ¶ 36.) Borrell never received a return call. ( Id. ) Because Richer was unavailable, Borrell asked the secretary if she could speak to Brenda Wands, the co-director of the Nurse Anesthesia Program. ( Id. at ¶ 37.) Wands, however, did not feel comfortable speaking with Borrell. ( Id. at ¶ 38.)
Borrell then called the grievance coordinator at Bloomsburg, Bob Wislock. ( Id. at ¶ 39.) Wislock directed Borrell to contact Bob Marande, the Dean of the College of Science and Technology, prior to filing a grievance, and to keep him abreast of her situation. ( Id. at ¶ 40.) Despite several attempts, Borrell has been unable to reach Wislock since this initial conversation. ( Id. at ¶ 41.)
Later on September 25, 2012, Borrell contacted Marande to explain the situation. ( Id. at ¶ 42.) Marande indicated that she should not face problems if she complied with the drug test request. ( Id. ) He also instructed her to document her willingness to take the drug test in writing. ( Id. ) That afternoon, Borrell sent an email to Richer, with copies to Wands and Debra Minzola, a clinical director and professor of the program, reiterating the reasoning behind her actions and stating her willingness to submit to a drug test. ( Id. at ¶ 43.)
Borrell unsuccessfully attempted to contact the Directors of the Nurse Anesthesia Program and Marande on September 26, 2012. ( Id. at ¶ ¶ 44-45.) The next day, Borrell received a letter signed by Richer and Ficca informing her that she had been expelled from the Nurse Anesthesia Program as a result of her refusal to take the drug test. ( Id. at ¶ 46.) While the letter indicates that her refusal to take the drug test violated the Handbook and the Drug Policy, it fails to indicate those provisions specifically violated, ( id. at ¶ 47), because neither the Handbook nor the Policy required Borrell to take a drug test in her circumstances. ( Id. at ¶ ¶ 48-57.)
Upon receiving the expulsion letter, Borrell immediately sent Ficca a letter explaining her position, appealing the expulsion, and requesting the review process and a review panel hearing as set forth in the Handbook. ( Id. at ¶ 59.) Yet, to this day, Bloomsburg has never responded to her request for review. ( Id. at ¶ 60.)
Borrell, on September 27, 2012, contacted Marande about her expulsion. ( Id. at ¶ 61.) Marande informed her that Geisinger dismissed her from the Nurse Anesthesia Program and/or terminated her ability to perform clinical work at Geisinger. ( Id. ) Borrell also learned from Marande that Richer and Ficca were instructed not to speak with her by a member of Geisinger's Human Resource Department, believed to be Human Resources Director Brion Lieberman. ( Id. ) Borrell's expulsion from the Nurse Anesthesia Program was ordered, agreed, and/or consented to by both Bloomsburg and Geisinger. ( Id. at ¶ 62.)
The following week, on or about October 3, 2012, Borrell's counsel sent a letter to Richer and Ficca reiterating her position and requesting review of her expulsion. ( Id. at ¶ 63.) To date, Bloomsburg has not responded to Borrell's letter. ( Id. at ¶ 64.) Instead, on October 19, 2012, Geisinger's counsel contacted Borrell's lawyer and threatened a Dragonetti action if the matter was pursued further. ( Id. at ¶ 65.)
Prior to her expulsion, Borrell paid her tuition, attended classes, and worked in all required clinical aspects of the Nurse Anesthesia Program. ( Id. at ¶ 69.) And, while Borrell was a student in the Nurse Anesthesia Program, Richer specifically related to the students a story about a prior student with a narcotic addiction that stole narcotics from the program or Geisinger. ( Id. at ¶ 79.) That student was not expelled. ( Id. ) Rather, the student was offered treatment and counseling and allowed to return as a student to the Nurse Anesthesia Program. ( Id. )
Since her expulsion, Defendants have told Borrell that prospective employers contacting them about the circumstances of her termination from the Nurse Anesthesia Program will be informed that she failed to comply with their drug testing policy. ( Id. at ¶ 71.) Borrell has also been told that her expulsion would be considered in admissions decisions if she applied to any other graduate nursing programs at Bloomsburg. ( Id. at ¶ 72.) Borrell's employment with Geisinger in the Pediatric Intensive Care Unit from which she was on academic leave while a student in the Nurse Anesthesia Program was terminated by Geisinger. ( Id. at ¶ 74.) Defendants also informed the American Association of Nurse Anesthetists that Borrell was no longer a student in the program as a result of her failure to comply with the drug testing policy. ( Id. at ¶ 75.) The expulsion of Borrell for failure to comply with the drug testing policy and for using controlled substance was also made public by Defendants. ( Id. at ¶ 73.)
Based on the foregoing events, Borrell commenced this action on October 24,
2012. On February 19, 2013, Borrell filed an Amended Complaint asserting claims for violation of her due process and equal protection rights, as well as state law breach of contract claims. Defendants Bloomsburg and Ficca moved to dismiss the Amended Complaint on April 22, 2013, (Doc. 29), and Defendants Geisinger and Richer filed a motion to dismiss ...