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Fagal v. Marywood University

United States District Court, M.D. Pennsylvania

October 11, 2017



          A. Richard Caputo United States District Judge

         Presently before this Court are Cross Motions for Summary Judgment filed by Plaintiff Dr. Frederick Fagal (“Fagal”) (Doc. 61) and Defendant Marywood University (“Marywood”) (Doc. 62). Additionally, Fagal has filed a Motion for Leave to File a Second Amended Complaint. (Doc. 91). Both Motions for Summary Judgment will be denied because there is a genuine dispute of material fact regarding the materiality of Fagal's breach of contract. Finally, Fagal's Motion for Leave to File a Second Amended Complaint will be denied as moot because Fagal's current complaint provides for nominal damages.

         I. Factual Background[1]

         A. The Parties

         Defendant Marywood is a Catholic university sponsored by the Congregation of the Sisters, Servants of the Immaculate Heart of Mary, and a Pennsylvania non-profit corporation located in Scranton, Pennsylvania. (Plaintiff's Statement of Material Facts (“PSMF”) ¶ 3, Doc. 66; Defendant's Statement of Material Facts (“DSMF”) ¶ 1, Doc. 69.) Marywood has adopted a set of “Core Values, ” which include respect for the value of each human being, diversity in the context of vibrant community, and the earth and all creation. (DSMF ¶ 4.) In the Fall semester of 1987, Plaintiff Fagal[2] became a member of Marywood's faculty. (PSMF ¶ 4.) Fagal attained tenure at Marywood in September 1994. (PSMF ¶ 5.) Throughout his employment at Marywood, Fagal was a professor in the Department of Social Sciences and reported to the Chairperson of the Department. (DSMF ¶ 7.) At all relevant times to this litigation, Marywood's President was Sister Anne Munley, IHM (“Munley”). (DSMF ¶ 5.)

         In 1992, Fagal signed a document entitled “Agreement and Appointment for FullTime Faculty.” (PSMF ¶ 7; Ex. 4, Doc. 66; Ex. 12, Doc. 66.) This document states that the “TERMS OF THIS AGREEMENT are offered . . . to Dr. Frederick Fagal Jr. . . . by Marywood College.” (Ex. 4.) The document further states that “[t]he policies and practices listed in the Faculty Manual are agreed upon by the parties hereto.” (Id.) Fagal and Marywood entered into written agreements for Fagal to serve on Marywood's full-time faculty for each year between 1992 and 2012. (PSMF ¶ 8.) For the 2010-2011 academic year, the parties entered into such an agreement, which was entitled “Tenured Faculty Letter of Agreement 2010-2011 Academic Year.” (Ex. 39, Doc. 66.) The parties do not dispute that they entered into this agreement.

         B. Relevant Marywood Policies [3]

         Marywood maintains a Faculty Handbook (the “Handbook”), which contains policies on, inter alia, contractual agreements with faculty members, faculty grievances and appeals, discipline, tenure, civil rights, computer use, academic freedom, and professional ethics. (DSMF ¶ 10; see Exs. 5(a)-5(b), Doc. 66.) On July 1, 2010, Marywood issued a new edition of its Handbook. (PSMF ¶ 11.) The third page of the Handbook states: “This handbook is effective with the 2010-2011 faculty letters of agreement.” (Ex. 5(a), at DEF3458, Doc. 66.)

         C. The Underlying Controversy

         In May 2011, Fagal and Munley signed a document titled “Tenured Faculty Letter of Agreement 2011-2012 Academic Year, ” which stated that Fagal would serve as a tenured Associate Professor from August 22, 2011 to May 18, 2012 and earn a salary of $76, 196.00 (PSMF ¶ 15; Ex. 6, Doc. 66.) The parties agree that Fagal was not an at-will employee during the relevant times. (PSMF ¶ 18; Defendant's Response (“DR”) ¶ 18.)

         In November 2011, Fagal invited a speaker from the Foundation for Individual Rights in Education (“FIRE”) to speak at Marywood later that month, in connection with Fagal's Introduction to Social Science class regarding free speech on college campuses. (PSMF ¶ 19; DSMF ¶ 29.) The topic of the FIRE presentation was “Know Your Rights: Free Speech and Thought Reform on Campus, ” which was related to Fagal's teachings on the U.S. Constitution. (PSMF ¶ 21.) Fagal paid for the FIRE speaker. (PSMF ¶ 20.) Fagal received approval from Marywood to hang posters announcing the FIRE speaker. (PSMF ¶ 22.) Approximately two days before the presentation, Fagal and some students, one of whom Fagal paid, hung posters around campus advertising the event and announcing a $50 attendance prize. (DSMF ¶ 30.) Fagal personally paid for some of these posters. (PSMF ¶ 22; DR ¶ 22.) Subsequently, Marywood personnel removed at least some of Fagal's posters without providing Fagal with any notice. (PSMF ¶ 23.) The parties dispute the reason(s) for why some of Fagal's posters were removed. (See DSMF ¶ 32; Plaintiff's Response (“PR”) ¶ 32, Doc. 84.) Fagal attempted to secure an apology and reimbursement from Marywood, but Marywood refused. (PSMF ¶ 24; DR ¶ 24.) No one from Marywood prevented the FIRE speaker from speaking, shortened the length of his speech, or otherwise tried to change or influence the topic of his discussion. (DSMF ¶ 33.) The FIRE speaker spoke at Marywood as scheduled. (DSMF ¶ 34.)

         On January 13, 2012, Fagal sent an email from his personal email address to Marywood faculty members concerning the removal of the posters.[4] (PSMF ¶ 26.) The email contained an “abstract” purporting to describe events that transpired, which stated in part:

On November 28-29, 2011, Marywood University tore down “stamped approved” posters announcing an open to all [FIRE] presentation. . . . On December 5[, ] Alan Levine, VP for Academic Affairs, told me [Fagal] there were no written policy statements which justified Marywood's action, but that my offer of a $50 random prize to a student for attending was, in the eyes of the administration's Executive Council which met on November 29, “pandering” to students to get them to come to class, and that this justified tearing down the posters . . . . It is transparently obvious Marywood University is discriminating against Professor Fagal.

(Ex. 9, Doc. 66.) The email also contained hyperlinks to two related YouTube videos created by Fagal, which criticized Munley and several other Marywood administrators for their involvement in the decision to remove the posters. (PSMF ¶¶ 27, 29; DSMF ¶¶ 36, 39.) The two videos are adaptations of scenes in Downfall, a 2004 German-language movie depicting the last days of Adolf Hitler's rule. (PSMF ¶ 29.) The scenes adapted by Fagal show Hitler chastising several of his lieutenants over setbacks suffered by the Nazis during World War II. (PSMF ¶ 29.) Fagal replaced the English subtitles with his own subtitles, which mocked the administration's conduct surrounding the FIRE speaker. (PSMF ¶ 29.) In Fagal's parody, the Hitler character is referred to as “FuhrMunley, ” and other members of the Marywood administration are depicted as members of the Nazi regime. (DSMF ¶ 39; see Exs. 10-11, Doc. 66.) One of the administrators depicted as a Nazi character in the video was Alan M. Levine, Ph.D. (“Levine”), Marywood's Vice President for Academic Affairs (“VPAA”), who is Jewish and who Fagal assumed was Jewish. (DSMF ¶ 40; PR ¶ 40.) Among other things, the video included a reference to a non-existent plot to have the Fagal character seduced and then accused of rape. (DSMF ¶ 41.) The Hitler character, “FuhrMunley, ” is depicted as saying, “If a rape charge is too brazen switch gears! BRIBE him! Use the old SS sisters of Subversion!” (DSMF ¶ 42.) Additionally, the Nazi character referred to as “LeVINE” is depicted as saying, “I should quit as VP and be a professor again but my young wife #2 and 1% kids need money.” (DSMF ¶ 43.) It was common knowledge that Dr. Levine had been divorced and remarried. (DSMF ¶ 44.) Fagal's email included hyperlinks to these videos, and they were also publically available on YouTube. (DSMF ¶ 45.) Other “Downfall videos, ” wherein the subtitles have been changed by the party posting the video, have appeared on YouTube.[5] (PSMF ¶ 31.) In his email, Fagal also advised the recipients about Marywood's Computer Use Policy and suggested that they respond to him using their personal email addresses. (DSMF ¶ 38.) Fagal signed this email in his capacity as an Associate Professor at Marywood. (DSMF ¶ 37.) These videos were not connected to any of Fagal's courses, research, or curriculum. (DSMF ¶ 47.) Fagal never apologized to Munley, Levine, or any other member of the Marywood administration. (DSMF ¶ 57; PR ¶ 57.)

         On January 17, 2012, Munley received an email from Levine informing her about Fagal's email and videos. (PSMF ¶ 32.) This was the first time that Munley was made aware of the email and videos. (PSMF ¶ 32.) Munley testified that, before discussing the email and videos with Fagal, she “had come to the conclusion that this was-this is something for which the individual concerned should be suspended.” (PSMF ¶ 32.) Before meeting with Fagal to discuss his email and videos, Munley and Marywood's Assistant Vice President for Human Resources, Patricia E. Dunleavy, Ph.D. (“Dunleavy”) worked together to create a list of “talking points.” (PSMF ¶ 34; DSMF ¶ 59.) Leading up to that meeting, it was Munley's plan to suspend Fagal regardless of what was said at the meeting. (PSMF ¶ 34.) Munley's “talking points” document included a bullet point which reads: “Ask Fagal to leave campus” and, underneath, “suspended with pay.” (Ex. 55, Doc. 66.) The document also included a bullet point titled “Alternate Plans, ” which included asking Fagal if he had a resolution in mind, such as retirement on the spot or a buyout of the remainder of his contract. (Id.) Additionally, the document included a bullet point titled “Post Suspension” and, underneath, stated that “Sister recom mends termination and prepares notice of charges.” (Id.)

         At approximately 8:45 AM on January 23, 2012, former Marywood Dean of the College of Arts and Sciences Michael A. Foley, Ph.D. (“Foley”), visited Fagal's office and informed him that Munley was summoning him to a meeting at 9:00 AM. (PSMF ¶ 37.) Fagal, Munley, Dunleavy, and Foley attended the meeting. (PSMF ¶ 38.) At the meeting, Munley asked Fagal whether he posted the videos on YouTube. (PSMF ¶ 39.) Fagal acknowledged that he had created and posted the videos. (PSMF ¶ 39; DSMF ¶ 64.) Munley asked Fagal to explain his actions, but when Fagal attempted to raise the issue of the poster removals, Munley indicated that she wanted to discuss the videos, not the poster incident. (PSMF ¶ 39; DSMF ¶ 66.) Fagal requested that Munley put her questions in writing so that he could craft a response, but Munley did not agree to do so. (PSMF ¶ 40.) At the meeting, Munley told Fagal that his employment was suspended effective immediately and that he should return his keys and university identification card. (PSMF ¶ 41.) Levine was not present at this meeting. (PSMF ¶ 42; DR ¶ 42; DSMF ¶ 62; PR ¶ 62.) At no time did Levine tell Fagal that he was suspended. (PSMF ¶ 42.) However, Levine testified that he agreed with Munley that the videos warranted Fagal's suspension. (DSMF ¶ 63.)

         At 2:24 PM on that same day, Dunleavy sent an email to Fagal confirming that he had been suspended and directing him to clean out his office. (PSMF ¶ 44.) At no time before Fagal's suspension did Marywood personnel tell Fagal that he posed an immediate harm to himself or others. (PSMF ¶ 46.) Additionally, Marywood did not provide Fagal with an oral or written warning, or an opportunity for monitored assistance relating to the email and videos. (PSMF ¶ 48.)

         On January 24, 2012, Frances D. Ferrese, Executive Secretary to Munley, sent an email to Fagal, which included as an attachment, inter alia, a letter to Fagal from Munley. (PSMF ¶ 49.) In that letter, Munley stated that she was “recommending that [Fagal's] tenure and employment with Marywood be terminated immediately; the University will, however, pay you the remainder of your 2011-12 Agreement and keep you on benefits through August, 2012.” (Ex. 15, Doc. 66.) The letter also provided the following Statement of Charges:

[Charge 1] Violation of Tenure Policy[, ] which includes “a strong acceptance by the Individual (requesting tenure) of the mission, goals and objective of the University”;
[Charge 2][6] Violation of the Civil Rights Policy (re in particular harassment of Dr. Levine and his family and other personal attacks on executive officers) . . .;
[Charge 3] Violation of Professional Ethics Policy[, ] which states that professors “do not discriminate against or harass colleagues”; and
[Charge 4] Violation of the University's Mission and Values as well as the principles of collegiality.

(Id.) Munley also stated in the letter that she was “prepared to send this statement of charges to a duly appointed faculty committee for review along with the emails and videos you forwarded to members of our community.” (Id.) Munley requested Fagal to sign and return an attached authorization form granting Marywood the permission to do so. (Id.) Prior to this letter, Marywood personnel took no remedial actions to resolve whatever issues they believed had led to Fagal's suspension. (PSMF ¶ 52.)

         On February 2, 2012, Fagal's attorney, Jonathan Cohen, sent a letter to Munley. (PSMF ¶ 54.) The letter expressed Plaintiff's opinion that Marywood was in breach of its contract with Fagal and requested the University to convene two ad hoc faculty committees pursuant to Marywood's PDP: one for the decision to suspend Fagal, and the other for Munley's recommendation to terminate Fagal. (Ex. 27, at DEF000193-196, Doc. 66.) Counsel also advised that the end of the second charge in Munley's letter was missing. (PSMF ¶ 54.) The next day, Dunleavy made a handwritten note regarding a meeting or phone conversation that she had with Munley regarding Fagal. (PSMF ¶ 55.) The note reads in part: “Progressive Discipline-n/a.” (Ex. 60, Doc. 66.) Dunleavy testified that she was conveying that progressive discipline was not applicable. (PSMF ¶ 55.)

         On February 8, 2012, Munley sent a second letter to Fagal, in which she again stated that she was recommending Fagal's tenure and employment be terminated immediately. (PSMF ¶¶ 56-57.) The letter also included a “revised statement of charges” and ...

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