United States District Court, M.D. Pennsylvania
FREDERICK F. FAGAL, JR., Plaintiff,
MARYWOOD UNIVERSITY, Defendant.
Richard Caputo United States District Judge
Fagal, PhD (“Dr. Fagal”), the Plaintiff, was a
tenured faculty member at Marywood University. Fagal was
terminated by Marywood, the Defendant, on April 3, 2012
following his development and distribution of two parodies
which depicted members of the Marywood administration as
Nazis (“Downfall videos”). Following his
termination, Dr. Fagal filed a Complaint in this Court, which
was amended on January 15, 2015, asserting a single claim
premised on a breach of contract. (Doc. 7.)
February 23, 2015, Marywood filed a Motion to Dismiss for
failure to state a claim upon which relief could be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Doc. 14.) This motion was fully briefed, and I
concluded that Dr. Fagal had pled facts sufficient to allege
a plausible claim. (Doc. 29.) Marywood answered the
Amended Complaint on June 30, 2015. (Doc. 30.) Next,
the parties filed cross motions for summary judgment.
(Docs. 61-62.) Both motions were denied because I
found that there was a genuine dispute of material fact
regarding the materiality of Dr. Fagal's breach of
contract. (Doc. 102.)
matter proceeded to trial on April 23, 2018. At the close of
Dr. Fagal's case, Marywood moved for Judgment on Partial
Findings under Federal Rule of Civil Procedure 52(c).
(Doc.131, at 12:18-20; 32:15-17.) I granted this
motion. (Doc.131, at 35:3-7.) As required by Rule
52, I must offer findings of fact and conclusions of law to
support this decision and enter judgment in favor of Marywood
and against Dr. Fagal. Fed.R.Civ.P. 52(a).
Federal Rule of Civil Procedure 52:
of the Federal Rules of Civil Procedure provides, in
Findings and Conclusions.
(1) In General. In an action tried on the
facts without a jury or with an advisory jury, the court must
find the facts specially and state its legal conclusions of
law separately. The findings and conclusions may be stated on
the record after the close of the evidence or may appear in
an opinion or a memorandum of decision filed by the court.
Judgment must be entered under Rule 58.
. . .
(c) Judgment on Partial Findings. If a party
has been fully heard on an issue during a nonjury trial and
the court finds against the party on that issue, the court
may enter judgment against the party on a claim or defense
that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue. The
court may, however, decline to render any judgment until the
close of the evidence. A judgement on partial findings must
be supported by findings of fact and conclusions of law as
required by Rule 52(a).
Pursuant to Rule 52(a), the Court's decision must
“be supported by subordinate factual findings.”
Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)
(citing O'Neill v. United States, 411 F.2d 139,
146 (3d Cir. 1969)). As applied to a Rule 52(c) motion, the
Court should apply “the same standard of proof and
weigh the evidence as it would at the conclusion of the
trial.” EBC, Inc. v. Clark Bldg. Sys., Inc.,
618 F.3d 253, 272 (3d Cir. 2010) (citing Emerson Elec.
Co. v. Farmer, 427 F.2d 1082, 1086 (5th Cir. 1970).
While the Court is not permitted to “view the evidence
through a particular lens or draw inferences favorable to
either party, ” Clark Bldg., 618 F.3d at 272
(citing Ritchie v. United States, 451 F.3d 1019,
1023 (9th Cir. 2006); Giant Eagle, Inc. v. Fed. Ins.
Co., 884 F.Supp. 979, 982 (W.D. Pa.1995)), the Court
should “make determinations of witness credibility
where appropriate.” Clark Bldg., 618 F.3d at
273 (citing Parker v. Long Beach Mortg. Co., 534
F.Supp.2d 528, 535 (E.D. Pa. 2008)).
Pennsylvania Law: Breach of Contract
Fagal asserted a single claim for breach of contract. He
argued that Marywood failed to provide him a variety of
process owed prior to his suspension and termination from
Marywood. Marywood disagreed and argued that: (1) Dr. Fagal
materially breached his contract with the University when he
distributed the Downfall videos, and thus was not
owed the process outlined in the contract; and (2) the
University complied with the procedures outlined in the
contract related to termination and suspension. While I do
not agree that Dr. Fagal materially breached the contract at
issue, I do find that Marywood University fulfilled its
obligations under the contract and provided Dr. Fagal with
the process owed.
order to prevail on a breach of contract claim under
Pennsylvania law, a plaintiff must demonstrate: (1) the
existence of a contract, including its essential terms; (2) a
breach of a duty imposed by the contract; and (3) resultant
damages. Haywood v. Univ. of Pittsburgh, 976
F.Supp.2d 606, 645 (W.D. Pa. 2013). “The fundamental
rule in interpreting the meaning of a contract is to
ascertain and give effect to the intent of the contracting
parties.” Murphy v. Duquesne Univ. of The Holy
Ghost, 777 A.2d 418, 429 (Pa. 2001) (citing Felte v.
White, 302 A.2d 347, 351 (Pa. 1973)). “Courts do
not assume that a contract's language was chosen
carelessly, nor do they assume that the parties were ignorant
of the meaning of the language they employed.”
Id. (citing Steuart v. McChesney, 444 A.2d
659, 661 (Pa. 1982)). Notably, “the meaning of an
unambiguous written instrument presents a question of law for
resolution by the court.” Murphy, 777 A.2d at
430 (citing Cmty. Coll. v. Cmty. Coll., Soc'y of the
Faculty, 375 A.2d 1267, 1275 (Pa. 1977)).
performance of a duty under a contract is due, any
nonperformance is a breach.” Widmer Eng'g, Inc.
v. Dufalla, 837 A.2d 459, 467 (Pa. Super. Ct. 2003)
(quoting Restatement (Second) of Contracts § 235(2));
see Grudkowski v. Foremost Ins. Co., 556 Fed.Appx.
165, 168 (3d Cir. 2014) (citing Dufalla, 837 A.2d at
467-68) (“At its core, a breach of contract involves
the nonperformance of any duty imposed by a contract between
parties.”). Thus, if a party is able to prove a breach
of contract but can show no damages flowing from the breach,
the party is nevertheless able to recover nominal damages
under Pennsylvania law. See Wolfe v. Allstate Prop. &
Cas. Ins. Co., 790 F.3d 487, 497 (3d Cir. 2015) (citing
Thorsen v. Iron & Glass Bank, 476 A.2d 928, 931
(Pa. Super. Ct. 1984)).
standard of review for an action for breach of a tenure
contract is the same as that applicable to a contract between
private parties.” Waggaman v. Villanova Univ.,
No. 04-4447, 2008 WL 4091015, at *20 (E.D. Pa. Sept. 4, 2008)
(citing Murphy, 777 A.2d at 429). The Pennsylvania
Supreme Court expressly declined to apply a deferential
standard of review in contractual disputes between a private
university and its professors. See Murphy,
777 A.2d at 428-29. However, the Pennsylvania Supreme Court
has also distinguished claims for breach of contract
contesting the merits of a private university's decision
to terminate a tenured professor, which are generally
unreviewable if the contract exclusively reserves such
decisions to the university, from claims that allege a
university failed to adhere to the procedural protections
afforded to tenured professors per the terms of their
employment contract, which are subject to judicial scrutiny.
See Ferrer v. Trs. of Univ. of Pa., 573 Pa.
310, 339-40 (2002); Murphy, 777 A.2d at 428-29,
443-44; see also Chen v. Pa. State Univ.,
No. 2-235, 2015 WL 9259395, at *2 (M.D. Pa. Dec. 18, 2015);
Waggaman, 2008 WL 4091015, at *20; Reardon v.
Allegheny Coll., 926 A.2d 477, 483 (Pa. Super. Ct.
2007). As the Ferrer court explained:
[A] breach of contract claim may be brought by a tenured
professor when it is asserted that the University failed to
comply with the procedures established by the parties'
contractual agreement. This cause of action is
distinguishable from a tenured professor's claim that a
university that has followed the established procedures for
termination has made the wrong decision. We stated that
“while [a professor] is free to assert in a court of
law that the process of forfeiture that was afforded him did
not comply with the [c]ontract's terms, he is not free to
demand that a jury re-consider and re-decide the merits of
Ferrer, 573 Pa. at 340 (quoting Murphy, 777
A.2d at 433).
Marywood Did Not Breach the Contract:
find that Marywood did not breach the contract at issue when
it suspended, and subsequently terminated, Dr. Fagal. While
Dr. Fagal points to a number of potential breaches, no
Marywood act or omissions resulted in a breach of its
contract with Dr. Fagal.
Dr. Fagal argued that his suspension was not consistent with
Marywood's Progressive Discipline Policy
(“PDP”). Specifically, Dr. Fagal contended that
he was owed a verbal or written warning and an opportunity to
remediate his conduct prior to suspension. While the PDP does
appear to strongly favor the use of “informal process,
” which includes the warnings now requested by Dr.
Fagal, the policy does not require such process for
all offending conduct. (Joint Ex. 3, at 40;
Joint Ex. 8.) In fact, the policy expressly states
that this “informal process” was only provided
“where applicable.” (Joint Ex. 8.) More
importantly, the Faculty Handbook explains that the
“informal process” was not applicable when
“[s]erious violations of professional
responsibilities” were in question. (Joint Ex. 3, at
40.) In other words, the informal procedures outlined in the
PDP are permissive. Moreover, Dr. Fagal was given the
opportunity to remediate his conduct, by way of an apology to
President Munley, but refused. (Doc. 124, at
115:21-25.) For these reasons, Marywood's failure to
provide informal process to Dr. Fagal-such as a verbal
warning or opportunity to remediate-does not amount to a
breach of the contract.
Dr. Fagal argued that Marywood breached the contract when
Marywood's President, not its Vice President of Academic
Affairs (“VPAA”), notified him of his suspension.
There is no question that the VPAA has the authority to
suspend a tenured faculty member: a “faculty member may
be suspended by the VPAA at any time during the
[disciplinary] proceedings.” (Joint Ex. 8.)
However, a superior officer at the University is endowed with
the powers of her subordinates. To suggest that the President
of the University, the VPAA's superior, did not have the
authority to notify Dr. Fagal of his suspension is simply
without merit. It is also important to remember that
President Munley removed VPAA Levine from participating in
Dr. Fagal's disciplinary proceedings because of his
emotional reaction to the Downfall videos.
(Doc. 124, at 10:15-19.) Thus, absent the VPAA,
there is no question that the President had the authority to
notify Dr. Fagal of his suspension.
Dr. Fagal argued that Marywood breached the contract when it
suspended him even though he did not pose a “immediate
harm” to himself or others. Dr. Fagal roots this
argument in the PDP, which explains: “[s]uspension is
justified if immediate harm to the faculty member or others
is threatened by the person's continuance in the faculty
position.” (Joint Ex. 8.)The policy does not
say suspension is only justified upon a finding of
immediate harm. Further, the policy does not limit harm to
physical harm, and Dr. Fagal elicited testimony from a number
of witnesses, including Dr. Levine, that suggested there was
an immediate psychological or emotional harm that would
result from Dr. Fagal's continued presence at Marywood.
(Doc. 124, at 10:10-14; 26:10-13; 27:6-23.) Finally, this
Court does not have the authority to review the
University's decision that Dr. Fagal did pose an
immediate harm. See Murphy, 777 A.2d at 428-29
(declining to reexamine a university's good-faith
conclusion that a tenured professor engaged in "serious
misconduct."); see also Mekuns v. Capella Educ.
Co., 655 Fed.Appx. 149, 150 (3d Cir. 2016) (“[A]s
a matter of Pennsylvania law, the provision of the policy
stating that ‘the decision of the university president
is final' precludes appellate-like review of the merits
of [the professors] disciplinary decision.”);
Yongsheng Chen v. Pa. State Univ., 2015 WL 9259395,
at *6 (M.D. Pa. Dec. 18, 2015) (“[I]n cases involving
university tenure decisions, while substantive review of a
university's tenure decision will not be conducted by the
courts, the procedural safeguards to which an applicant was
contractually entitled to may be reviewed.”); Furjan v.
Univ. of Pa., No. 718 EDA 2016, 2016 WL 7212502, at *3
(“The trial court's role in breach of contract
cases involving a university's decision to deny tenure to
a faculty member is limited to determining whether the
university complied with the procedure that it was
contractually obligated to extend to the applicant.”).
Dr. Fagal claims that Marywood breached the contract when it
refused to impanel two separate and distinct Ad Hoc
Committees; one to review his suspension and one to review
his termination. The policy, however, does not require the
President impanel two distinct Committees. Rather, the policy
states, “should a faculty member request that [an Ad
Hoc] Committee be convened twice (i.e. once for suspension
and once for dismissal), the membership of the committee
may be similar or different, a determination which
is made by the President . . . .” (Joint Ex.
8, at 2 (emphasis added).) Here, the President decided to
have a single panel, made up of the same faculty members.
(Joint Ex. 33.) This Committee considered both Dr.
Fagal's termination and suspension and found that
termination was proper. There was no need for a formal decision
on the legitimacy of Dr. Fagal's suspension because it
was subsumed in the termination. (Joint Ex. 36, at
3.) Thus, Marywood did not breach the contract when it failed
to impanel two distinct Ad Hoc Committees.
while raised in his pre-trial memorandum, no evidence was
provided to suggest that Dr. Fagal was retaliated against for
his use of the Faculty Grievance and Appeals policy.
Therefore, it will not serve as a basis to support a claim
for breach of contract.
above stated reasons, Dr. Fagal has failed to support a claim
for breach of contract. So, judgement will be entered in
favor of Marywood University and against Dr. Fagal.
Breach of Contract: Findings of Fact
Defendant Marywood University (“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,
the Fall semester of 1987, Plaintiff Frederick F. Fagal, Jr.
became a member of Marywood's faculty.
Fagal had earned a bachelor's degree from Union College
in 1968, a master's degree in Economics from Cornell
University in 1971, and a Ph.D. in Social Studies Education
from Syracuse University in 1981.
Fagal attained tenure at Marywood in September 1994.
Throughout his employment at Marywood, Dr. Fagal was a
professor in the Department of Social Sciences and reported
to the Chairperson of the Department.
all relevant times to this litigation, Marywood's
President was Sister Anne Munley, IHM (“Munley”).
1992, Dr. Fagal signed a document entitled “Agreement
and Appointment for Full-Time Faculty. This document states
that the “TERMS OF THIS AGREEMENT are offered . . . to
Dr. Frederick Fagal Jr. . . . by Marywood College.” The
document further states that “[t]he policies and
practices listed in the Faculty Manual are agreed upon by the
parties hereto.” 8. Dr. Fagal and Marywood entered into
written agreements for Dr. Fagal to serve on Marywood's
full-time faculty for each year between 1992 and 2012. 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.” 9. Marywood
maintains a Faculty Handbook (the “Handbook”),
which contains policies on contractual agreements with
faculty members, faculty grievances and appeals, discipline,
tenure, civil rights, computer use, academic freedom, and
July 1, 2010, Marywood issued a new edition of its Handbook.
The third page of the Handbook states: “This handbook
is effective with the 2010-2011 faculty letters of
agreement.” 11. In May 2011, Dr. Fagal and Munley
signed a document titled “Tenured Faculty Letter of
Agreement 2011-2012 Academic Year, ” which stated that
Dr. Fagal would serve as a tenured Associate Professor from
August 22, 2011 to May 18, 2012 and earn a salary of $76,
Fagal was not an at-will employee during the relevant times.
November 2011, Dr. Fagal invited a speaker from the
Foundation for Individual Rights in Education
(“FIRE”) to speak at Marywood later that month,
in connection with Dr. Fagal's Introduction to Social
Science class regarding free speech on college campuses.
topic of the FIRE presentation was “Know Your Rights:
Free Speech and Thought Reform on Campus, ” which was
related to Dr. Fagal's teachings on the U.S.
Constitution. Dr. Fagal paid for the FIRE speaker.
Approximately two days before the presentation, Dr. Fagal and
some students, one of whom Dr. Fagal paid, hung posters
around campus advertising ...