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Morgan v. Fiorentino

United States District Court, M.D. Pennsylvania

June 27, 2019

MICHAEL FIORENTINO, JR., et al., Defendants.


          Hon. John E. Jones III Judge

         Presently 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.

         I. BACKGROUND

         Plaintiff 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.

         In 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.

         On 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).

         Because 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).

         Shortly 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.

         On 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 investigation. (Id.).

         On 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.).

         On May 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 then.” (Id.).

         On May 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 immediately.” (Id.).

         With 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).

         In 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.

         Morgan 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.

         On 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 ...

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