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Fagal v. Marywood University

United States District Court, M.D. Pennsylvania

April 27, 2018



          A. Richard Caputo United States District Judge

         Frederick 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.)

         On 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.)

         This 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).

         II. Discussion

         A. Federal Rule of Civil Procedure 52:

         Rule 52 of the Federal Rules of Civil Procedure provides, in pertinent part:

         (a) 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)).

         B. Pennsylvania Law: Breach of Contract

         Dr. 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.

         (1) Legal Standard:

         In 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)).

         “When 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)).

         “[T]he 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 his termination.”

Ferrer, 573 Pa. at 340 (quoting Murphy, 777 A.2d at 433).

         (2) Marywood Did Not Breach the Contract:

         Here, I 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.

         First, 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.

         Second, 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.

         Third, 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.”).

         Fourth, 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.[1] 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.

         Finally, 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.

         For the 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.

         C. Breach of Contract: Findings of Fact

         Undisputed Facts[2]

         1. 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, Pennsylvania.

         2. In the Fall semester of 1987, Plaintiff Frederick F. Fagal, Jr. became a member of Marywood's faculty.

         3. Dr. 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.

         4. Dr. Fagal attained tenure at Marywood in September 1994.

         5. Throughout his employment at Marywood, Dr. Fagal was a professor in the Department of Social Sciences and reported to the Chairperson of the Department.

         6. At all relevant times to this litigation, Marywood's President was Sister Anne Munley, IHM (“Munley”).

         7. In 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 professional ethics.

         10. On 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, 196.00.

         12. Dr. Fagal was not an at-will employee during the relevant times.

         13. In 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.

         14. The 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.

         15. Approximately two days before the presentation, Dr. Fagal and some students, one of whom Dr. Fagal paid, hung posters around campus advertising ...

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