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Borrell v. Bloomsburg University

United States District Court, M.D. Pennsylvania

October 21, 2014

BLOOMSBURG UNIVERSITY, GEISINGER MEDICAL CENTER, and ARTHUR F. RICHER and MICHELLE FICCA in their individual and official capacities, Defendants

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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: Jaime S. Tuite, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA; Keli M. Neary, Office of Attorney General, Harrisburg, PA; Maryanne M. Lewis, Pennsylvania Office of Attorney General, Civil Litigation Division, Harrisburg, PA.

For Geisinger Medical Center, Arthur F. Richer, Defendants: Jaime S. Tuite, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA; Thomas S. Giotto, Buchanan Ingersoll & Rooney, P.C., Pittsburgh, PA.

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A. Richard Caputo, United States District Judge.

Presently before the Court are three motions: Plaintiff Angela Borrell's (" Borrell" ) Motion for Partial Summary Judgment, (Doc. 86); Defendant Michelle Ficca's (" Dr. Ficca" ) Motion for Summary Judgment, (Doc. 114); and Defendants Geisinger Medical Center (" Geisinger" ) and Arthur Richer's (" Richer" ) Motion for Summary Judgment, (Doc. 116).[1] Borrell was dismissed as a student from Bloomsburg University (" Bloomsburg" ) and Geisinger's collaborative Nurse Anesthesia Program (the " NAP" ) in September 2012 after she refused to submit to a drug test. Shortly thereafter, Borrell commenced this action asserting, among others claims, deprivation of her equal protection and due process rights. With discovery now complete, Borrell seeks summary judgment as to liability on her procedural due process liberty and property interest claims, while Defendants move for summary judgment on all claims.

Because Borrell fails to present any evidence that she was treated differently from an individual that was " alike in all relevant aspects," Defendants will be granted summary judgment on the " class of one" equal protection claim. Furthermore, since Defendants did not make public any false statements in relation to Borrell's dismissal from the NAP, Defendants' motion for summary judgment on the due process liberty interest claim will be granted. Conversely, because Defendants deprived Borrell of a property interest 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 interest claim will be granted.

I. Factual Background

A. The Nurse Anesthesia Program

In 2006, Richer was instructed bye Geisinger's[2] Executive Leadership Team to explore options with universities in order to create a joint or collaborative accreditation program. (Doc. 115, Defendants' Statement of Material Facts, " Defs.' SMF," ¶ 1; Doc. 139, Plaintiff's Counterstatement of Facts, " Plf.'s CSF," ¶ 1.) The following year, Geisinger decided to form a collaborative program, known as the Nurse Anesthesia Program (the " NAP" ), with Bloomsburg, an educational institution of the System of Higher Education of the Commonwealth of Pennsylvania that provides a Masters of Science degree accredited by the Commission of Collegiate Nursing Education in the area of nursing for graduates of accredited programs. ( Defs.' SMF, ¶ ¶ 2-3; Plf.'s CSF, ¶ ¶ 2-3.) The NAP was designed to be distinct from Geisinger's previous programs for registered nurses. ( Defs. 'SMF, ¶ 4; Plf.'s CSF, ¶ 4.) Under the NAP, students in the program are given the opportunity to perform hands-on work at Geisinger under the supervision of Certified Registered

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Nurse Anesthetists. ( Defs.' SMF, ¶ 5; Plf.'s CSF, ¶ 5.)

In August 2007, Geisinger and Bloomburg entered into the " Collaboration Agreement for Nurse Anesthesia Education" (the " Agreement" ). ( Plf.'s Ex. 10.) As set forth in the Agreement, Bloomsburg " wishes to collaborate with Geisinger to support the Academic Training portion of the Program and provide the Program educational expertise and facilities," and Geisinger " wishes to collaborate with University to support the Clinical Training portion of the Program and provide the Program clinical expertise and facilities." ( Id.) The Agreement provides that " none of the provisions of this Agreement are intended to create nor shall be deemed or construed to create any relationship between the parties other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of this Agreement." ( Id. at ¶ 9.7.)

The parties' duties and responsibilities are enumerated in the Agreement. For example, students that complete the Clinical Training portion of the NAP receive a Certificate of Completion from Geisinger, while Bloomsburg provides a MS Degree in Nursing to students that successfully complete the program. ( Id. at ¶ 2.1) Both parties were also required to assist with meeting the necessary criteria for accreditation standards. ( Id. at ¶ 2.2.) The Agreement further provides that " [b]oth parties shall:" (1) " develop a joint Admissions Committee to finalize admission criteria and recommend admission of Students into the Program; " (2) " designate at least three (3) representatives to serve on an advisory council for the program; " (3) " establish and mutually agree upon the number of Students that will be allowed to participate in the Program for each class; " (4) " develop and approve the curricula for Students while they are participating in the Clinical Training at Geisinger; " and (5) " develop guidelines for the Clinical Training portion of the Program with incorporation into University's Department of Nursing Graduate Student Handbook and based on University academic policies." ( Id. at ¶ 2.2.) The Agreement also requires both parties to promote and market the NAP. ( Id. at ¶ 2.6.) Bloomsburg further agreed to " advise Students that Students will, while participating in the Clinical Training portion of the Program, be expected to adhere to all applicable policies and standards of Geisinger," including Geisinger's Drug and Alcohol Policy. ( Id. at ¶ 2.8.) And, " [s]ubject to the terms of this Agreement, Geisinger shall have sole authority and control over all aspects of Clinical Training provided to Students pursuant to this Agreement including, without limitation, designation of patients and facilities." ( Id. at ¶ 2.4.) Similarly, the Agreement provides that Geisinger may exclude a Student from participation in the Clinical Training if " (i) the Student's performance is unsatisfactory to Geisinger; (ii) the Student fails to comply with applicable policies and standards of Geisinger; or (iii) the Student's health status may prevent attendance and successful completion of the Clinical Training portion of the Program. Geisinger will notify University in the event a student is excluded." ( Id. at ¶ 8.2.)

As to compensation, Bloomsburg is required to pay Geisinger " at the beginning of each semester, at the rate of 50% of the billed tuition and related fees." ( Id. at ¶ 5.1.) Bloomsburg is also obligated to hire " the Program Director as a full-time tenure track graduate faculty member of the Department of Nursing." ( Id.) " Program Director" is defined as:

the individual interviewed, approved and employed by both University and Geisinger to oversee the Program and serve

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as the liaison between Geisinger and University relative to the Program. As an employee of both Geisinger and University, Program Director shall be entitled to any benefits or entitlements associated with such employment with each party in accordance with each party's policies. . . .

( Id. at ¶ 1.4.)

The Agreement provides that the NAP is approximately thirty-three (33) months in duration. ( Id. at ¶ 2.2.) Approximately twenty-three (23) to twenty-five (25) months are dedicated to the Clinical Training portion of the program. ( Id.) During the Clinical Training portion of the NAP, the students work with and under the supervision of Geisinger employees. ( Defs.' SMF, ¶ 41; Plfs. CSF, ¶ 41.) Geisinger owns the buildings in which it operates. ( Defs.' SMF, ¶ 37; Plfs. CSF, ¶ 37.)

Geisinger and Bloomsburg have joint employees. (Doc. 88, Plaintiff's Statement of Material Facts, " Plf.'s SMF," ¶ ¶ 10-11; Doc. 132, Defendants' Counterstatement of Facts, " Defs.' CSF," ¶ ¶ 10-11.) Defendant Richer worked as the Interim Program Director from 2008 until 2010 solely as a Geisinger employee. ( Defs.' SMF, ¶ 23; Plfs. CSF, ¶ 23.) In 2010, once students arrived to begin the clinical training in the NAP, Richer became a joint employee of Bloomsburg and Geisinger. ( Richer Dep., 375:10-13; Plf.'s Ex. 11.) Richer was the Director of the NAP at that time. ( Plf.'s SMF, ¶ 10; Defs.' CSF, ¶ 10.) Richer's pay did not change after he became a joint employee of Bloomsburg and Geisinger, as he continued to receive a yearly salary of $190,000.00. ( Defs.' SMF, ¶ 26; Plfs. CSF, ¶ 26.) However, Bloomsburg began paying approximately twenty-five percent (25%) of Richer's salary, in the annual amount of $45,225.97. ( Defs.' SMF, ¶ 27; Plfs. CSF, ¶ 27.) Prior to becoming a joint employee of Bloomsburg and Geisinger, Richer worked exclusively for Geisinger. ( Defs.' SMF, ¶ 28; Plfs. CSF, ¶ 28.)

Other joint Bloomsburg-Geisinger employees were Brenda Wands (" Dr. Wands" ) and Debra Minzola (" Minzola" ). ( Plf.'s SMF, ¶ 11; Defs.' CSF, ¶ 11.) Dr. Wands was the assistant Program Director, ( Dr. Wands Dep., 16:1-6, 17:3-8), and Minzola is now the assistant Program Director. ( Minzola Dep., 11:4-7.)

The NAP makes up only a small percentage of Geisinger's annual budget. ( Defs.' SMF, ¶ 53; Plfs. CSF, ¶ 53.) For example, in 2012, Geisinger's overall budget was $65,485,379, while its annual investment in the NAP is approximately $870,979. ( Defs.' SMF, ¶ ¶ 54-55; Plfs. CSF, ¶ 54-55.) And, while Geisinger indicates that its net loss on its investment in the NAP is approximately $749,979 per year, ( Defs.' SMF, ¶ 56), Geisinger leadership desired to develop the NAP " as a source of recruitment for future nurse anesthetists to staff the Geisinger entities." ( Richer Dep., 56:16-19.)

B. Bloomsburg and Geisinger Policies and Procedures

Bloomsburg's Department of Nursing prepared a Graduate Student Handbook for its students seeking a Master of Science in Nursing. (Plf.'s Ex. 16.) Specifically, the Departmental Code of Academic and Professional Conduct indicates that it applies " to all student activities on University owned property, any location affiliated with Bloomsburg University, or in the community at large." ( Id. at 67.) Under the Alcohol and Substance Abuse Policy, students are required to " comply with the drug and alcohol policies and drug testing procedures as required by agencies affiliated with the Department of Nursing." ( Id. at 70.) The Alcohol and Substance Abuse Policy further states: " [departmental sanctions will be rendered for a student in

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the nursing program who . . . refuses to comply with affiliated agencies drug and alcohol policies and drug screening policies and procedures." ( Id.) The Handbook also sets forth a " review process" which is to " be initiated for a student in the nursing program who has a suspected violation of university, department, clinical agency alcohol/substance use and abuse policies . . . ." ( Id.)

Section V of the Geisinger Health System/Bloomsburg University of Pennsylvania Nurse Anesthesia Program Administrative Manual is entitled the " Student Nurse Anesthetist Handbook." (Doc. 82, 122.) The purpose of the Student Nurse Anesthetist Handbook is to provide a " guide for students intended to promote student understanding of the [NAP]-Related policies, procedures and academic/clinical issues." ( Id. at 123.) Among the various policies and procedures set forth in the Nurse Anesthesia Program Administrative Manual is the " Grievance Procedure," which defines a grievance as " a complaint by a student concerning the clinical experiences, didactic evaluation, and/or disciplinary action during the Student's period of enrollment in the Clinical Core Course portion of the Program." ( Id. at 194.) The Administrative Manual also contains a " Code of Conduct/Discipline" policy, which provides that the NAP and Geisinger have established rules and regulations, and that " in the event there is a violation of one of these rules, we are committed to being reasonable in an attempt to correct the offense." ( Id. at 196.) Under the Code of Conduct/Discipline policy, the " Faculty Organization" is the agency responsible for the discipline of students, except in minor instances. ( Id.) This policy further enumerates offenses which are cause for immediate suspension and/or expulsion, one of which is the " unauthorized use, possession or distribution of controlled substances." ( Id.) The policy provides that it is " the student's right to initiate a grievance in the event that there is a disagreement with the decision of the Faculty Organization. Please refer to the Grievance Policy." ( Id.)

Geisinger also has a Drug and Alcohol Policy for purposes of outlining " Geisinger Health System standards and procedures for dealing with Alcohol and Drug use or abuse by employees, . . ." ( Plf.'s Ex. 13, 1.) Students are considered to be " Geisinger Health System Employee[s]" under the Drug and Alcohol Policy. ( Id. at 2.) The Drug and Alcohol Policy provides that no Geisinger Health System Employees " may use, possess, transport, promote or sell Alcohol, or any Drug or Drug Paraphernalia while performing work for Geisinger . . ., while on Geisinger Health System Premises, . . ." ( Id. at 5.) Furthermore, Geisinger Health System Employees are prohibited from reporting to work or remaining on duty while under the influence of or impaired by alcohol or any drug. ( Id.) Geisinger Health System Employees are obligated under the Drug and Alcohol Policy to comply with substance abuse testing procedures. Those procedures provide that " [s]uch tests may be administered upon reasonable suspicion of substance abuse, (this may include situations on a case by case basis where HR is made aware of alleged drug/alcohol abuse and deems it as reasonable cause to test the employee) . . . ." ( Id. at 6.). And, " [a]ny Geisinger Health System Employee who refuses to cooperate in any aspect of the Drug and/or Alcohol testing process described in this Policy shall be subject to disciplinary action, including termination, for a first refusal or any subsequent refusal." ( Id. at 4.)

C. Borrell's Enrollment, Participation, and Termination from the NAP

Borrell applied for entrance into the NAP for the class beginning Fall 2011.

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( Plf.'s Ex. 74.) Borrell was accepted into the NAP by letter dated December 10, 2010. ( Id.) The acceptance letter was signed by Dr. Ficca as Graduate Coordinator and Assistant Chairperson[3] and Richer as Interim Program Director on joint Bloomsburg-Geisinger letterhead. ( Id.) The only program within Bloomsburg that Borrell applied for and was accepted by was the NAP. ( Plf.'s Ex. 75, ¶ 7.) Borrell ultimately started in the NAP in 2011, ( Borrell Dep., 43:13), and her clinical course work began at Geisinger in May 2012. ( Id. at 59:8-10.) While a student in the NAP, Borrell paid her tuition, maintained her GPA at approximately 3.63-3.69, and performed her clinical work appropriately. ( Plf.'s SMF, ¶ 15; Defs.' CSF, ¶ 15.)

Shortly after Borrell's class (the class of 2014) began their clinical work, Dr. Wands noticed that Borrell would show up to class looking disheveled, tired, and moody. ( Dr. Wands Decl., ¶ 6.) However, Dr. Wands never documented her observations. ( Dr. Wands Dep., 83:8-22.) Richer also noticed that Borrell appeared disheveled on a few occasions, but, like Dr. Wands, he never documented these observations. ( Richer Dep., 103:1-23.)

On the evening of September 20, 2012, Monica Masemer (" Masemer" ), a student in the class of 2013, alerted Dr. Wands that a student would be coming forward about one of the registered nurses in the class of 2014. ( Defs.' SMF, ¶ 67; Plfs. CSF, ¶ 67.) Masemer knew through Justin Young (" Young" ), also a student in the class of 2013, that either Lindsey Reilly (" Reilly" ) or Young would come forward regarding Borrell having a potential drug problem. ( Defs.'SMF, ¶ 68; Plfs. CSF, ¶ 68.) Reilly had previously spoken with Young, her mentor, about her concern that Borrell was having issues with drug use. ( Defs.' SMF, ¶ 69; Plfs. CSF, ¶ 69.) Young spoke of that conversation with Masemer, who then communicated with Dr. Wands. ( Defs.' SMF, ¶ 71; Plfs. CSF, ¶ 71.)

The next day, Friday, September 21, 2012, Reilly met with Dr. Wands. ( Defs.' SMF, ¶ 72; Plfs. CSF, ¶ 72.) Reilly informed Dr. Wands that she witnessed Borrell use cocaine once in July 2012. ( Reilly Dep., 9:12-18, 47:13-14.) Reilly also informed Dr. Wands that Borrell acted erratically the previous weekend when they were in New York City. ( Id. at 46:22-47:17.) According to Borrell, Reilly reported this story because the two had gotten into an argument while they were in New York City. ( Borrell Dep., 156:17-24.)

The same day, Dr. Wands reported what she learned from Reilly to Dr. Ficca and Richer. ( Dr. Wands Decl., ¶ 18.) Dr. Wands spoke with Dr. Ficca and Richer at Bloomsburg while the three were preparing to start the interview process for the next class of anesthesia students. ( Dr. Ficca Dep., 50:7-51:11.) Dr. Wands stated that she had contact with students who reported to her that they had witnessed Borrell using cocaine and that she acted inappropriately on a weekend trip to New York. ( Id. at 51:13-18.)

On Monday, September 24, 2012, Borrell reported as usual to her clinical assignment at Geisinger at 6:00 a.m. ( Plf.'s SMF, ¶ 44; Defs.' CSF, ¶ 44.) Under the supervision of a certified registered nurse anesthetist, Borrell performed work, including administering anesthesia, on a patient or patients for three to five hours. ( Id.)

Also that morning, Dr. Wands, Richer, and Dr. Ficca met with Susan Hallick (" Hallick" ), Geisinger's Executive Vice

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President, System Chief Nursing Officer, to discuss Reilly's report of Borrell's use of cocaine. ( Defs.' SMF, ¶ 77; Plfs. CSF, ¶ 77.) Hallick is " responsible for ensuring that any matters of significance occurring in the NAP are handled consistently with GMC and Geisinger Health System's overall policies, procedures, and practices." ( Hallick Decl., ¶ 7.) The meeting took place in Hallick's office which was located at Geisinger. ( Ficca Dep., 61:6-9.) At that meeting, it was decided that Richer should contact Brion Lieberman (" Lieberman" ), Geisinger's Director of Human Resources, ( Lieberman Dep., 5:8), for further guidance. ( Ficca Dep., 63:18-19.) It was also decided at that meeting that Borrell needed to be taken out of the clinical area and drug tested. ( Richer Dep., ...

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