United States District Court, M.D. Pennsylvania
John E. Jones III Judge
pending before the Court are cross-motions for summary
judgment. (Docs. 34, 38). Both motions have been fully
briefed, (Docs. 36, 41, 48, 50, 55, 56), and are ripe for
disposition. For the reasons, Defendants' motion shall be
granted and Plaintiff's motion shall be denied.
Charles Morgan (“Plaintiff” or
“Morgan”) has been a professor at Lock Haven
University of Pennsylvania (“LHU”) since 2004. He
has had tenure since 2009 and served as chair of the
mathematics department from 2011 to 2016. In 1989, more than
fifteen years prior to being hired by LHU, Morgan was
convicted in Kentucky of two counts sodomy and one count
sexual abuse. “Though the exact nature of
[Morgan's] crime is unclear, it appears that [Morgan],
who was 19 years old at the time, performed oral sex on an
8-year-old boy and engaged in another unspecified sexual act
with another minor.” Pennsylvania State Sys. of
Higher Educ., Lock Haven Univ. v. Ass'n of Pennsylvania
State Coll. & Univ. Faculties, 193 A.3d 486, 491
(Pa. Commw. Ct. 2018) (hereinafter
“PASSHE”). Morgan was sentenced to five
years' imprisonment but served less than four years after
completing a voluntary sex offender therapy program. In 2004,
approximately 15 years after his conviction, Morgan applied
for employment at LHU and truthfully told LHU that he had not
been convicted of a criminal offense in the last ten years.
LHU did not inquire any further concerning Morgan's
criminal history at that time.
2016, the Pennsylvania General Assembly enacted various
changes to Pennsylvania's Child Protective Services Law
(“CPSL”), 23 Pa.C.S. § 6301 et seq.
These changes mandated that an employer subject to the CPSL
shall not hire an applicant that has been identified as a
child abuse “perpetrator” or an applicant that
has been convicted of any of the offenses enumerated in the
statute. These enumerated crimes include, inter
alia, sexual assault, endangering the welfare of
children, sexual abuse of children, and corruption of minors.
These changes to the CPSL, however, did not apply “to
an employee of an institution of higher education whose
direct contact with children, in the course of employment, is
limited to” prospective, visiting students and/or
underage matriculated students. 23 Pa.C.S. § 6344.
February 20, 2015, LHU adopted the University Protection of
Minors Policy Handbook (“Minors Policy”), (Doc.
42-8), pursuant to instructions issued by the Pennsylvania
State System of Higher Education Board of Governors
(“PASSHE”) to “develop a criminal
background investigation policy and ensure its consistent
application . . . [in compliance] with federal and state laws
or regulations regarding criminal background investigations
and the use of such investigations in employment situations,
” (Doc. 42-7), and PASSHE's mandate that
“[e]ach State System entity offering or approving
programs that involve minors within the scope of this
document will establish and implement policies and procedures
consistent with this policy.” (Doc. 42-10 at ¶ C).
LHU's Minors Policy stated that “[t]he University
will notify employees by separate communication concerning
the details and timeline for obtaining the required
background clearances pursuant to both the Board of Governors
policy and the law.” (Doc. 42-8 at 7).
the CPSL seemed to apply only to prospective employees, the
Association of Pennsylvania State College and University
Faculties (“APSCUF” or “the Union”)
challenged PASSHE's background and reporting requirements
in the Pennsylvania Commonwealth Court as it applied to
current employees. PASSHE, 193 A.3d at 490-91. The
Commonwealth Court entered a preliminary injunction
preventing PASSHE from requiring APSCUF members, like Morgan,
to submit clearances “except with respect to PASSHE
employees who teach courses containing dual enrollees or who
are involved with programs that require the employees to have
direct contact with children.” Id.
Specifically, the Commonwealth Court noted, “all PASSHE
employees teaching an introductory level course, often
referred to as a ‘100-level course,' must submit
Section 6344 clearances.” Id. On April 26,
2017, the Supreme Court affirmed the Commonwealth Court's
order. PASSHE, 161 A.3d 193 (Pa. 2017).
after the Commonwealth Court's January 13, 2016 order,
Morgan and other LHU employees who were scheduled to teach
100-level courses or who were involved in programs which
required them to come in direct contact with minors were
asked to complete a background check. (Doc. 42-12). Morgan
complied, and his background check revealed his 1989 crimes.
April 6, 2016, LHU's President Michael Fiorentino, Jr.
(“Fiorentino”), wrote to Morgan informing him
that LHU intended to conduct a fact-finding investigation
“in response to information that has come to our
attention as a result of criminal background clearance
completed in accordance with PASSHE” policies. (Doc.
42-13). Specifically, Fiorentino noted, “[a]dditional
information was requested so that the University had a better
understanding of the circumstances surrounding your situation
prior to taking any action.” (Id.). Fiorentino
attached copies of the records received as part of the
background check and notified Morgan of the time, date, and
location of the fact-finding meeting scheduled to take place.
The letter also notified Morgan that he was being placed on
administrative leave with pay pending the results of that
April 15, 2016, Associate Vice President of Human Resources
Deana Hill (“Hill”) held a fact-finding meeting
attended by Morgan and Sara Miller, Morgan's
representative from APSCUF. (Doc. 42-14). At the meeting,
Morgan explained that he had not had any criminal issues
since his release from prison, that he had consistently
obeyed LHU's policies, that he was “a safe member
of the faculty, ” and that, in order to avoid ever
being “under suspicion, ” he always kept his
office door open. (Id.).
9, 2016, Fiorentino held a pre-disciplinary conference that
was attended by Hill, Morgan, and Miller. (Doc. 42-9). At
that conference, Morgan reiterated his view that
“twenty-seven years have passed” since his
conviction and that he is “not the same person as I was
18, 2016, Fiorentino sent Morgan a letter formally
terminating his employment at LHU. (Doc. 42-4). In the
letter, Fiorentino stated that Morgan was being terminated
“because of [his] criminal conviction of a reportable
offense[(s)] as defined by” the CPSL. (Id.).
Fiorentino noted that:
Your duties at Lock Haven University include a regular and
recurring teaching assignment that requires you provide
instruction in 100 level math courses in which
non-matriculated minors may enroll and you are involved in an
academic program for high school students hosted annually by
your department . . . . Therefore, given the grave nature of
your convictions and, after weighing the severity, relevancy,
and recency of those convictions, I conclude that the
severity and relevancy, together or independently, outweigh
any possible mitigation based upon the passage of time.
(Id.). Moreover, Fiorentino made clear that he did
“not agree with [Morgan's] assessment” that
he was not “the same person [that he was] at the time
of the conviction” and that the “strong policy
statement from the General Assembly” in amending the
CPSL which “would have served to disqualify [him] from
employment at [LHU had he been] currently seeking
employment” supported his decision. (Id.). As
such, Fiorentino concluded, LHU had “no alternative but
to terminate [Morgan's] employment effective
the support of the Union, Morgan challenged his termination
pursuant to his collective bargaining agreement before an
arbitrator. The arbitrator found Morgan's termination to
be without just cause and ordered his reinstatement.
Specifically, the arbitrator found that Morgan's
unblemished record since his release from prison and the fact
that LHU could easily schedule Morgan to teach courses that
did not expose him to underage students suggested that
Morgan's “missteps of his teenage years have not
followed him into middle age” and that there was only
an arbitrary relationship between Morgan's past crimes
and his present fitness to perform his position. (Doc.
42-20). The Pennsylvania Commonwealth Court affirmed the
arbitrator's decision, PASSHE, 193 A.3d at 503,
and the Pennsylvania Supreme Court denied allocatur.
PASSHE, 203 A.3d 980 (Pa. 2019).
December 2016, Morgan filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”) and
the Pennsylvania Human Relations Commission
(“PHRC”) raising claims of sex discrimination and
hostile work environment against LHU. On April 3, 2017, the
EEOC issued Morgan a right to sue letter.
filed the instant action on June 28, 2017, alleging
constitutional violations and gender discrimination under
Titles VII and IX. (Doc. 1). On April 10, 2018, Morgan filed
an amended complaint. (Doc. 22). In Counts I, II, II, IV, and
V of the amended complaint, Morgan contends that Fiorentino
and Hill, acting in their official capacities as LHU
administrators and acting under the color of state law,
deprived him of his substantive and procedural due process
rights, violated the Ex Post Facto Clause, the Equal
Protection Clause, and that his termination amounted to cruel
and unusual punishment. Accordingly, Morgan seeks damages and
other remedied under 42 U.S.C. § 1983. In Count VI, VII,
VIII, IX, Morgan asserts that PASSHE and LHU discriminated
against him and subjected him to a hostile work environment
in violation of Titles VII and IX. In Counts X and XI, Morgan
avers that Fiorentino and Hill discriminated against him and
subjected him to a hostile work environment in violation of
the Pennsylvania Human Relations Act (“PHRA”).
Discovery in this case completed on January 28, 2019.
March 22, 2019, Morgan filed the instant motion for partial
summary judgment, (Doc. 34), and a brief in support thereof.
(Doc. 36). The same day, Defendants Fiorentino, Hill, PASSHE,
and LHU (collectively, “Defendants”), filed their
own motion for summary judgment, (Doc. 38), and a brief in
support thereof. (Doc. 41). Defendants and Morgan both filed
briefs in opposition to opposing parties' motions on
April 19, 2019, (Docs. 48, 50), and reply briefs on May 3,
2019. (Docs. 55, 56). On May 13, 2019, after seeking leave of
Court, Morgan filed a Sur-Reply. (Doc. 61). Both motions for
summary judgment ...