Krug v. Bloomsburg University

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY KRUG, : Civil No. 4:18-CV-1669

:

Plaintiff, :

:

v. :

:

BLOOMSBURG UNIVERSITY, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court are cross motions for summary judgment. Plaintiff filed a

motion for summary judgment on his due process claims on March 17, 2022.

(Doc. 79). Defendants then filed a motion for summary judgment on all of

Plaintiff’s claims on May 9, 2022. (Doc. 88.) The court finds that summary

judgment is not an appropriate vehicle to resolve the claims in this case, as disputes

of material fact exist on every claim. Therefore, both motions will be denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY1

Defendant Bloomsburg University (“BU”) is an institute of higher education

under the control and operation of the Commonwealth of Pennsylvania by virtue of

1 In considering the instant cross-motions for summary judgment, the court relied on the

following uncontested facts, or where the facts were disputed, viewed the facts and deduced all

reasonable inferences therefrom in the light most favorable to the nonmoving party in

accordance with the relevant standard for deciding a motion for summary judgment. However,

although the parties have thoroughly detailed the facts supporting their positions and responded

to the facts set out by opposing counsel, the court has carefully reviewed the parties’ submissions

and determined that there are too many disputes of material fact to warrant granting summary

judgment to either party on any claim. Therefore, it is not necessary for the court to provide

detailed findings of fact for the purpose of resolving the instant motions.

its membership in Defendant Pennsylvania State System of Higher Education

(“PASSHE”). (Doc. 80, ¶ 1.) Plaintiff Dr. Jeffrey Krug (“Dr. Krug”) was Dean of

the College of Business at BU beginning June 1, 2015. (Id. ¶ 2.) In July 2017,

Defendant Bashar Hanna (“President Hanna”) was named the new president of

BU. (Id. ¶ 4.) In the fall of 2017, Defendant James Krause (“Krause”) was the

interim provost at BU. (Id. ¶ 3.)

During the time period at issue, Judy Rostucher (“Rostucher”) was Dr.

Krug’s administrative assistant and Angela Crossley (“Crossley”) was President

Hanna’s administrative assistant. (Id. ¶ 5.) During the 2017-2018 academic year,

Robert Wislock (“Wislock”) was BU’s Title IX Coordinator. (Id. ¶ 6.) Terry and

JoAnn Zeigler were benefactors of BU, and the business school is formally named

after them as the Terry and JoAnn Zeigler College of Business. (Id. ¶ 7.)

President Hanna asked Terry Zeigler to serve as Dr. Krug’s executive coach and

Dr. Krug was permitted to discuss business concerns with Terry Zeigler in this

context. (Id. ¶ 8.) Andrew Lehman (“Chief Counsel Lehman”) was chief counsel

for PASSHE from July 2013 until April 2022. (Id. ¶ 9; Doc. 89, ¶ 9.)

On September 14, 2016, then-President of BU, David Soltz, granted Dr.

Krug tenure in accordance with Article 15 of the agreement between the

Association of Pennsylvania State College and University Faculties and PASSHE

(“Agreement”). (Doc. 80, ¶ 10.) Article 15 of the Agreement provides that

“[t]enure shall mean the right of a FACULTY MEMBER to hold his/her position

and not to be removed therefrom except for just cause as hereinafter set forth in

this Article or except as provided elsewhere in this Agreement.” (Id. ¶ 11.)

While these facts are undisputed, factual disputes arise as to whether Dr.

Krug was a tenured or an at-will employee because Dr. Krug was not assigned an

academic rank or appointed as a faculty member. (Doc. 89, ¶ 11, 122–23; Doc. 96,

¶ 123.) On March 9, 2018, President Hanna wrote a letter to Dr. Krug stating that

Dr. Krug was an at-will employee. (Doc. 80, ¶ 12.)

On October 30, 2017, Crossley reported to Dr. Robert Dampman, a member

of the University Council of Trustees, that President Hanna had touched her

inappropriately, that Hanna was making sexual advances, and that he retaliated

against her when she rebuffed him. (Id. ¶ 15.) Crossley also confided in

Rostucher that President Hanna touched her inappropriately and Rostucher

reported these allegations to Dr. Krug. (Id. ¶ 16.) Dr. Krug and Dr. Dampman

later discussed Crossley’s allegations. (Id. ¶ 17.)

On November 11, 2017, Dr. Krug phoned Terry Zeigler, who put the call on

speakerphone while with his wife, JoAnn. (Id. ¶ 18.) During the call, Dr. Krug

advised Terry Zeigler that President Hanna may be seeking to return the Zeiglers’

donation and also that a female subordinate of President Hanna’s was alleging that

President Hanna engaged in inappropriate behavior with her. (Id.) Several details

of this call, including whether identifying information about the complainant was

revealed are disputed. (Id.; Doc. 89, ¶ 18.)

Dr. Krug’s father, Alan Krug, has had a career in public policy and

legislative consulting. (Doc. 80, ¶ 19.) Alan Krug was a lobbyist within the

Pennsylvania legislature and was friendly with many legislators, including

legislators who were PASSHE board members. (Id.) Dr. Krug spoke to his father

about a woman coming to him with sexual harassment allegations and asked his

father’s advice. (Id. ¶ 20.) Several details of this call, including whether

identifying information about the complainant was revealed are disputed. (Id.;

Doc. 89, ¶ 20.) Alan Krug advised Dr. Krug to contact Angela Johnston

(“Johnston”), Dr. Krug’s sister, as she was Chief of Staff to the President at the

College of Wooster and was trained and experienced with handling sexual

harassment cases in a university setting. (Doc. 80, ¶ 21.)

Dr. Krug called Johnston and explained that a woman in his office advised

that another woman at the institution was alleging sexual harassment. (Id. ¶ 22.)

Several details of this call, including whether identifying information about the

complainant was revealed are disputed. (Id.; Doc. 89, ¶ 22.) Johnston advised that

as a result of Dr. Krug’s position at BU, he was a mandated reporter because he

was not a confidential resource, like a chaplain. (Doc. 80, ¶ 23.)

Having received this advice, Dr. Krug advised Crossley that he was a

mandated reporter, and that if she did not report her allegations to Wislock, the

Title IX Coordinator, Dr. Krug was obligated to do so. (Id. ¶ 26.) On November

13, 2017, Crossley, accompanied by Rostucher and Dr. Krug, went to the Title IX

office and reported the sexual harassment allegations against President Hanna to

Wislock. (Id. ¶ 27.) No official Title IX complaint was filed. (Id. ¶ 27.) PASSHE

conducted an investigation into the sexual harassment allegations and concluded

that Wislock did not properly handle Crossley’s allegations because he should have

immediately notified the state system that he received allegations against the

University President. (Id. ¶ 32.)

Johnston advised Dr. Krug to provide her phone number to Crossley to call

for advice if she wanted to, although Johnston did not know Crossley’s name or

job title. (Id. ¶ 34.) Dr. Krug complied. (Id. ¶ 35.) Crossley did call Johnston.

(Id. ¶ 36.) Subsequently, Johnston spoke to Alan Krug and disclosed both

Crossley’s and President Hanna’s identities in relation to the sexual harassment

allegations. (Id. ¶ 38.)

In the months that followed, Dr. Krug and Rostucher felt that they were

being retaliated against in numerous ways for assisting Crossley in reporting sexual

harassment. (Id. ¶¶ 42–50.) Defendants dispute their involvement in the alleged

retaliatory acts and the admissibility of statements about the actions. (Doc. 89, ¶¶

42–50.) Dr. Krug and Rostucher went to Wislock to file a complaint alleging

retaliation for assisting Crossley in making a Title IX complaint, asserting that

Krause’s and President Hanna’s administrative assistants, at Krause’s and/or

President Hanna’s direction, were spreading rumors that Dr. Krug and Rostucher

were engaged in a sexual affair, thus creating a hostile work environment. (Doc.

80, ¶¶ 51–53.) William Helzlsouer was appointed by PASSHE to investigate Dr.

Krug’s and Rostucher’s complaints of retaliation. (Id. ¶ 54.) Helzlsouer’s report

confirmed that rumors of a sexual affair were being spread, but also that there was

insufficient evidence to trace the origination of the rumors back to Dr. Krug’s and

Rostucher’s assistance of Crossley. (Id. ¶ 55; Doc. 89, ¶ 55; Doc. 81-36, pp. 5–6.)

On January 11, 2018, Dr. Krug received a letter from BU Human Resources

director Jerry Reed informing him that PASSHE had initiated an investigation into

Dr. Krug’s conduct as Dean of the College of Business, to investigate “the

disclosure of personnel matters not of public concern and information protected by

the Family Education Rights and Privacy Act, among other issues.” (Doc. 80, ¶

56.) Chief Counsel Lehman retained the law firm Ballard Spahr to act was

investigators on PASSHE’s behalf. (Id. ¶ 57.)

Dr. Krug received a letter in which he was directed to attend an interview

with Olabisi Ladeji Okubadejo and Meredith Swartz Dante (“the Ballard Spahr

attorneys”). (Id. ¶ 58.) Krause emailed Dr. Krug on January 12, 2018, advising

him that failure to participate in the university investigation interview would result

in discipline up to and including termination. (Id. ¶ 59.) The Ballard Spahr

attorneys emailed Dr. Krug’s counsel, Brian Caffrey, that Dr. Krug was required to

attend the interview without counsel. (Id. ¶ 60.)

There was no notetaker or stenographer present to verify the accuracy of

what the Ballard Spahr attorneys wrote down during any of the interviews they

conducted, including Dr. Krug’s interview. (Id. ¶ 67.) Ultimately, the Ballard

Spahr attorneys authored a report of their findings (“the Ballard Spahr report”),

concluding that Dr. Krug “made disclosures of private personnel information and

confidential student information” to four individuals––“his father, J[oAnn] Zeigler,

E. Evans, and N. Guiffre.” (Id. ¶ 68.) The Ballard Spahr attorneys did not

interview Crossley, Alan Krug, or Johnston. (Id. ¶ 69.) The Ballard Spahr report

indicates that Chris Jones, an attorney employed by PASSHE, was interviewed, but

no summary of his interview was included. (Id. ¶¶ 70–71.) Dr. Krug contested

allegations made by other individual during the Ballard Spahr attorneys’ interviews

and urged the attorneys to contact and interview John Braganini. (Id. ¶¶ 72–73.)

The Ballard Spahr attorneys did not interview John Braganini. (Id. ¶ 74.) John

Braganini’s declaration directly refutes some information contained within the

Ballard Spahr report. (Id. ¶ 75.)

PASSHE directed President Hanna to delegate decision-making authority

regarding a personnel matter to someone else, as President Hanna needed to be

walled off from the decision-making process. (Id. ¶ 76; Doc. 89, ¶ 76.) President

Hanna chose Krause, who was the second ranking officer at BU. (Doc. 80, ¶ 77;

Doc. 89, ¶ 76–77.)

Following the release of the Ballard Spahr final report on March 7, 2018, a

pre-disciplinary conference (“PDC”) was scheduled for Dr. Krug on March 9,

2018. (Doc. 80 ¶ 78.) In advance of the PDC, Krause intended to send Dr. Krug a

summary of the Ballard Spahr report, but inadvertently sent Dr. Krug the full

Ballard Spahr report. (Id. ¶ 78; Doc. 89, ¶ 78.)

On March 8, 2018, before the PDC was held, Suzanne Williamson

(“Williamson”), University Legal Counsel for PASSHE, emailed Krause suggested

language for disciplining Dr. Krug. (Id. ¶ 102.) The suggested language related

only to termination. (Id.) Defendants concede that Krause was “leaning toward”

termination prior to the PDC. (Doc. 89, ¶¶ 102, 145–46.) Defendants assert that

Krause wanted to hear what Dr. Krug had to say before making a final decision,

however, and that Krause was merely planning for termination as a potential

outcome. (Id. ¶¶ 102–03.) Later that evening, Krause emailed Williamson back,

attaching “draft emails to four key constituencies on campus,” all of which

announced Dr. Krug’s termination, effective March 21, 2018. (Doc. 80, ¶¶ 103–

04.)

Krause, PASSHE Assistant Vice Chancellor for Employee and Labor

Relations Lisa Sanno (“Ms. Sanno”), and Human Resources Specialist Aubry

McConnell (“Ms. McConnell”) were present for Dr. Krug’s PDC on March 9,

2018. (Doc. 80, ¶ 80.) During the PDC, Dr. Krug objected to Krause being

appointed as arbiter because he felt Krause was not a disinterested party. (Id. ¶

82.) Ms. Sanno interrupted Dr. Krug and directed him to focus on his actions

rather than the actions of Krause and President Hanna. (Id. ¶ 83–84; Doc. 89, ¶

83.) Dr. Krug continued to object to Krause’s involvement throughout his PDC.

(Doc. 80, ¶¶ 85–86.) Dr. Krug also objected to his inability to have counsel

present at the PDC, noting that President Hanna was permitted to have counsel

present at his PDC relating to Crossley’s allegations, as Dr. Krug felt the process

and this discrepancy was unfair. (Id. ¶ 87.)

During the PDC, Dr. Krug noted that he never spoke with his father or sister

about Crossley’s allegations after she reported the conduct to Wislock, so BU’s

policy prohibiting disclosure of such allegations did not apply, as no formal

complaint had been made at the time he spoke with his father and sister. (Id. ¶¶

88–91.) Dr. Krug noted the same as to conversations he had with Nick Giuffre and

the Zeiglers. (Id. ¶¶ 92–93.) Following the PDC, Dr. Krug submitted a written

memo to Krause, Ms. Sanno, and Ms. McConnell again objecting to Krause’s

involvement. (Id. ¶ 95.) Dr. Krug also attached an email sent to PASSHE Interim

Chancellor Karen Whitney requesting that a new arbiter outside of BU be

appointed. (Id. ¶ 96.) Chancellor Whitney did not respond, but Chief Counsel

Lehman responded, indicating that no conflict of interest had been identified. (Id.

¶ 97.)

Because Dr. Krug complained about not having sufficient time prior to the

PDC to review the Ballard Spahr report, Krause gave Dr. Krug until March 12,

2018 to review the report and provide a response. (Doc. 89, ¶ 143.) Dr. Krug

submitted a ten-page written response to the Ballard Spahr report on March 12,

2018. (Id. ¶ 144.)

Dr. Krug received a letter from Krause terminating his employment at BU

on March 21, 2018. (Id. ¶ 100.) Dr. Krug was walked off campus in front of

faculty and staff during what he testified was the most humiliating day of his life.

(Id. ¶ 101.) Following Dr. Krug’s termination, BU circulated a two-page statement

about his termination to the press, the students and faculty, presidents of PASSHE

institutions, and to BU’s Council of Trustees. The statement details the actions

leading to Dr. Krug’s termination and concludes that his “actions should be

considered an act of wanton or willful disregard of the University’s interests and

the interests of the employee/student he disclosed information about.” (Doc. 81-

37, p. 2.) The statement further states that Dr. Krug deliberately violated

University policy, applicable law (FERPA), principles of confidentiality

protections afforded to Title IX complaints and personnel matters, and disregarded

standards of behavior, including compliance and leadership responsibilities as a

Dean. (Id.) When searching for new employment, the circumstances of his

termination, as well as the instant lawsuit, were cited as concerns by prospective

employers. (Doc. 80, ¶¶ 111–16.)

Dr. Krug initiated this action by filing a complaint on August 22, 2018.

(Doc. 1.) An amended complaint was filed on December 29, 2018. (Doc. 22.)

The parties stipulated that Dr. Krug could again amend his complaint. (Doc. 53.)

On July 8, 2019, Dr. Krug filed his second amended complaint, which is now the

operative complaint. (Doc. 54.) Defendants filed an answer on July 18, 2019.

(Doc. 57.) The case was reassigned to the undersigned on November 25, 2019.

The remaining claims2 at issue in this case are: Count 1 – retaliation in

violation of Title IX, 20 U.S.C. § 1981(a) et seq. against BU and PASSHE

regarding Dr. Krug’s assistance of Angela Crossley in making a Title IX

complaint; Count 2 – retaliation in violation of Title IX, 20 U.S.C. § 1981(a) et

seq. against BU and PASSHE regarding Dr. Krug’s own complaint of retaliation to

2 After reviewing Defendants’ arguments on counts 6 and 10 of the second amended complaint,

Dr. Krug did not contest the arguments and withdrew those claims. (Doc. 97, p. 62.)

BU after assisting Angela Crossley; Count 3 – a violation of 42 U.S.C. § 1983

against President Hanna and Krause premised on retaliation in violation of the First

Amendment; Count 4 – a violation of 42 U.S.C. § 1983 against President Hanna

and Krause premised on a due process violation relating to Dr. Krug’s tenure as a

property interest; Count 5 – retaliation in violation of the Pennsylvania

Whistleblower Law, 43 Pa.C.S. § 1421 et seq. against all Defendants; Count 7 –

retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a) against BU and

PASSHE regarding Dr. Krug’s assistance of Angela Crossley in making a Title IX

complaint; Count 8 – retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a)

against BU and PASSHE regarding Dr. Krug’s own complaint of retaliation to BU

after assisting Angela Crossley; Count 9 – a violation of 42 U.S.C. § 1983 against

President Hanna and Krause premised on a due process violation relating to Dr.

Krug’s reputation as a liberty interest; Count 11 – retaliation in violation of the

Pennsylvania Human Rights Act, 43 Pa.C.S. § 955(d) against all Defendants

regarding Dr. Krug’s assistance of Angela Crossley in making a Title IX

complaint; and Count 12 – retaliation in violation of the Pennsylvania Human

Rights Act, 43 Pa.C.S. § 955(d) against all Defendants regarding Dr. Krug’s own

complaint of retaliation to BU after assisting Angela Crossley. (See Doc. 54, pp.

25–37.)

Dr. Krug filed his motion for summary judgment, statement of material

facts, exhibits, and brief in support on March 17, 2022. (Docs. 79–83.)

Defendants filed their motion for summary judgment, statement of material facts,

and brief in support on May 9, 2022. (Docs. 88–90.) The brief in support of

Defendants’ motion was also a brief in opposition to Dr. Krug’s motion for partial

summary judgment, by agreement of the parties. (Doc. 73.) Dr. Krug filed a

counter-statement of material facts and brief in opposition to Defendants’ motion

for summary judgment, which also acted as a reply brief to his own motion for

summary judgment, on June 13, 2022. (Docs. 96–97.) Defendants filed their reply

brief on July 27, 2022. (Doc. 108.) Thus, the motions are ripe for disposition.

Furthermore, while the parties were briefing the instant motions for

summary judgment, Defendants discovered that one of the declarations attached as

an exhibit to their statement of material facts was an unsigned declaration that was

a draft, rather than the final, signed declaration. Therefore, Defendants filed a

motion to amend/correct the summary judgment record on July 14, 2022. (Doc.

100.) In response, Dr. Krug filed a motion to strike the declaration entirely. (Doc.

101.) The court denied Dr. Krug’s motion to strike and granted Defendants’

motion to amend/correct the summary judgment record on January 23, 2023.

(Docs. 111–12.)

STANDARD OF REVIEW

A court may grant a motion for summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.” Thomas v.

Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

Dr. Krug’s motion for partial summary judgment seeks summary judgment

only on his due process claims. In contrast, Defendants’ motion for summary

judgment seeks summary judgment in their favor on all of Dr. Krug’s claims. The

court will first address the immunity issues raised by Defendants.

A. Immunity

1. Eleventh Amendment Immunity

Defendants argue that as to Counts 3, 4, 9, and 10 of the second amended

complaint, because Dr. Krug seeks compensatory damages pursuant to Section

1983, the individual Defendants are entitled to immunity pursuant to the Eleventh

Amendment to the Constitution because they were acting in their official

capacities. (Doc. 90, p. 31.)

In response, Dr. Krug asserts that the individual Defendants are sued

pursuant to Section 1983 in their individual, rather than official, capacities, so

Eleventh Amendment immunity does not apply. (Doc. 97, pp. 62–65.)

Defendants’ reply brief provides no further argument on this point. (See Doc.

108.)

Eleventh Amendment immunity bars suit against state officials sued in their

official capacities because the state is the true party in interest inasmuch as the

plaintiff seeks recovery from the state treasury. Atwell v. Schweiker, 274 Fed.

App’x 116, 117–18 (3d Cir. 2007) (citing Melo v. Hafer, 912 F.2d 628, 635 (3d

Cir. 1990)). The Eleventh Amendment does not, however, bar suits against state

officials sued in their personal capacities. Melo, 912 F.2d at 635. To determine

whether a plaintiff is suing a defendant in his personal capacity, official capacity,

or both, courts must look to the complaint and the course of proceedings. Id. In

doing so, the court in Atwell considered whether damages were requested from the

individual and the state, whether the defendant raised a qualified immunity

defense, and whether punitive damages were requested. Atwell, 274 Fed. App’x at

118. The Third Circuit has resolved doubts about the capacity in which defendants

were sued in favor of a plaintiff, and assumed the plaintiff sued them in their

individual capacities, where punitive damages are sought. Id.

Here, the second amended complaint does not explicitly state the capacity in

which Dr. Krug is suing the individual defendants. (Doc. 54, pp. 26–27, 32.)

However, just as in Atwell, Dr. Krug only seeks damages from the individual

defendants, rather than the state. (Id.) Furthermore, the individual defendants

raised a qualified immunity defense, which is available when a defendant is sued in

his individual capacity. (Doc. 90, pp. 41–43.) Lastly, Dr. Krug is seeking punitive

damages on his Section 1983 claims. (See Doc. 54, pp. 54–55.) Therefore, while

the complaint does not specify the capacity in which Krause and President Hanna

are being sued, this ambiguity should be resolved in Dr. Krug’s favor.

Accordingly, the individual Defendants are not entitled to Eleventh Amendment

immunity on these claims and summary judgment on this basis is denied.

2. Qualified Immunity

Next, the individual Defendants assert that they are entitled to qualified

immunity. (Doc. 90, pp. 41–43.) On this score, the individual Defendants argue

that Dr. Krug cannot establish that any constitutional violation occurred, but even

if he could, there was no clearly established violation of his constitutional rights

because he was an at-will employee who was terminated after violating university

policies and federal law. (Id. at 43.)

In response, Dr. Krug notes that terminating an employee in retaliation for

exercising free speech rights under the First Amendment violates clearly

established law. (Doc. 97, p. 66.) Dr. Krug also argues that a government

employee reporting sexual harassment is a matter of public concern. (Id.)

Furthermore, Dr. Krug contends that the law relating to due process in this context

is clear that the decisionmaker must be neutral, that the decision cannot be pre-

determined, and that the hearing must not be a sham. (Id. at 67.) Lastly, Dr. Krug

asserts that the law is clear that tenure constitutes a property interest and there is a

liberty interest in one’s reputation. (Id.) Again, the individual Defendants’ reply

brief does not address these arguments directly, but addresses the underlying

constitutional claims at issue. (See Doc. 108.)

The doctrine of qualified immunity protects government officials from

liability for civil damages “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Qualified

immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform their duties

reasonably.” Id. Qualified immunity “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986). Although qualified immunity is generally a question of

law that should be considered at the earliest possible stage of proceedings, a

genuine dispute of material fact may preclude summary judgment on qualified

immunity. Giles v. Kearney, 571 F.3d 318, 325–26 (3d Cir. 2009).

To overcome qualified immunity, a plaintiff must show “(1) that the official

violated a statutory or constitutional right and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft v. Al-Kidd, 563 U.S.

731, 735 (2011). In analyzing the facts, the court has discretion to decide which of

the prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

A right is “clearly established” for qualified immunity purposes only if “the

contours of the right” are “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1982). Thus, defendants are entitled to qualified immunity if

“reasonable officials in [their] position at the relevant time could have believed, in

light of what was in the decided case law, that their conduct would be lawful.” In

re Cit of Phila. Litig., 49 F.3d 945, 961 n.14 (3d Cir. 1995). However, for

reasonable officials to be on notice that their conduct would be unlawful, there

need not be “a previous precedent directly on point.” Acierno v. Cloutier, 40 F.3d

597, 620 (3d Cir. 1994); accord Anderson, 483 U.S. at 640 (holding that the

“clearly established” standard does not require that “the very action in question has

previously been held unlawful”). Rather, there need only be “some but not precise

factual correspondence between relevant precedents and the conduct at issue,” Pro,

81 F.3d at 1292 (internal citations and quotations omitted), so that “in the light of

pre-existing law the unlawfulness [would be] apparent.” Anderson, 483 U.S. at

640.

i. First Amendment Retaliation

A public employee seeking to state a claim for retaliation under the First

Amendment must allege that “(1) his speech is protected by the First Amendment

and (2) the speech was a substantial or motivating factor in the alleged retaliatory

action, which, if both are proved, shifts the burden to the employer to prove that

(3) the same action would have been taken even if the speech had not occurred.”

Daughter v. Sch. Dist. of Phila., 772 F.3d 979, 986 (3d Cir. 2014).

For the first element, a public employee’s speech is protected by the First

Amendment “when (1) in making it, the employee spoke as a citizen, (2) the

statement involved a matter of public concern, and (3) the government employer

did not have ‘an adequate justification for treating the employee differently from

any other member of the general public’ as a result of the statement he made.” Hill

v. Borough of Kutztown, 455 F.3d 225, 241–42 (3d Cir. 2006) (quoting Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006)).

For a public employee’s speech to be protected by the First Amendment, he

must have spoken as a citizen, meaning that his speech must not have been

undertaken pursuant to his job responsibilities as a public employee. See Garcetti,

547 U.S. at 421–22. As the Supreme Court has noted, “when public employees

make statements pursuant to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.” Id. at 421. However, if “the public

employee’s speech is not part of his ordinary job duties or is uttered as sworn

testimony in a judicial proceeding, then the employee is acting as a private citizen

and his speech hence may or may not be protected under the First Amendment,”

depending on whether the speech involved a matter of public or private concern.

Falco v. Zimmer, 767 F. App’x 288, 298–99 (3d Cir. 2019).

Relative to the second factor, whether the speech involved a matter of public

concern, this must be determined “by the content, form, and context of a given

statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138,

147–48 (1983). Speech involves a matter of public concern “when it can ‘be fairly

considered as relating to any matter of political, social, or other concern to the

community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of

general interest and of value and concern to the public.’” Snyder v. Phelps, 562

U.S. 443, 453 (2011). As the Third Circuit Court of Appeals has summarized,

jurisprudence in this area indicates that “speech disclosing public officials’

misfeasance is protected while speech intended to air personal grievances is not.”

Falco, 767 F. App’x at 303 (quoting Swineford v. Snyder Cnty Pa., 15 F.3d 1258,

1271 (3d Cir. 1994)).

At the final stage of this three-step inquiry, “courts balance ‘the public

employee’s interest in speaking about a matter of public concern and the value to

the community of [his] being free to speak on such matters’ against ‘the

government’s interest as an employer in promoting the efficiency of the services it

performs through its employees.’” Falco, 767 F. App’x at 303–04 (quoting Azzaro

v. Cnty of Allegheny, 110 F.3d 968, 980 (3d Cir. 1997)). “If the public employer’s

interest is ‘significantly greater’ than the public employee’s interest in contributing

to the public debate, then the public employee’s speech is not protected.” Id. at

304.

Having set forth the relevant inquiries, the court now turns to the facts of this

case. At the outset, the court notes that the second amended complaint lists several

instances of Dr. Krug’s speech. (Doc. 54, ¶¶ 118–122.) However, the parties’

arguments center on Dr. Krug’s assistance of Crossley in making a Title IX

complaint to BU. (Doc. 90, pp. 23–25; Doc. 97, pp. 32–49.) Thus, the court’s

analysis will likewise focus on that specific instance of speech.

Defendants first argue that Dr. Krug was not speaking as a citizen, as he

assisted Crossley in making her report because he was considered by BU to be a

mandated reporter. (Doc. 90, p. 25.) Dr. Krug, however, argues that all employees

who were not confidential resources or limited confidential resources were deemed

to be mandatory reporters at BU. (Doc. 97, pp. 46–47.) Additionally, Dr. Krug

notes that the critical inquiry in such cases is whether the speech at issue is

ordinarily within the scope of an employee’s duties, regardless of whether it

concerns those duties or contains information obtained through the course of

employment. (Id. at 48.)

The court agrees with Dr. Krug on this point. Several years after Garcetti,

the Supreme Court noted that the holding in Garcetti “said nothing about speech

that simply relates to public employment or concerns information learned in the

course of public employment.” Lane v. Franks, 573 U.S. 228, 239 (2014). Indeed,

“the mere fact that a citizen’s speech concerns information acquired by virtue of

his public employment does not transform that speech into employee––rather than

citizen–– speech.” Id. at 240. Rather, “the critical question under Garcetti is

whether the speech at issue is itself ordinarily within the scope of an employee’s

duties, not whether it merely concerns those duties.” Id. It is clear that assisting in

making a Title IX complaint to BU’s Title IX Coordinator was not ordinarily

within the scope of Dr. Krug’s duties as Dean of the College of Business at BU.

Therefore, Dr. Krug was speaking as a citizen.

The court then turns to whether the speech involved a matter of public

concern. Here, Defendants argue that Dr. Krug’s speech was not a matter of

public concern, but constituted merely personal grievances because the report did

not involve a general pattern of sexual harassment. (Doc. 90, p. 25.) In

opposition, Dr. Krug argues, citing Third Circuit case law, that speech involving

government impropriety occupies the highest rung of First Amendment protection

because of the public’s substantial interest in discovering governmental

improprieties. (Doc. 97, pp. 43–44.) Furthermore, Dr. Krug cites to Azzaro v.

Cnty of Allegheny, 110 F.3d 968 (3d Cir. 1997), in which the Third Circuit held

that speech by a government employee reporting sexual harassment was a matter

of public concern and was thus constitutionally protected speech. (Id. at 44.) Dr.

Krug then notes that President Hanna is an important public figure in a small town

like Bloomsburg, Pennsylvania, where BU students and faculty make up at least

42% of the town’s population. (Id. at 44–45.)

In reviewing the Azzaro opinion, as well as the other aforementioned cases,

the court finds Dr. Krug’s speech relating to allegations of sexual harassment

against a university’s president are a matter of public concern. In finding that

similar complaints were a matter of public concern, the Azzaro court noted that

sexual harassment, “when practiced by those exercising authority in the name of a

public official, is as much a matter of public concern as racial discrimination

practiced under similar circumstances.” Azzaro, 110 F.3d at 978. The court also

expressly rejected the notion that grievances about sexual harassment are only a

matter of public concern if they include indications that there is a systemic problem

interfering with the public agency’s performance of its governmental functions. Id.

at 980. Additionally, it is clear that Dr. Krug’s speech in this case can fairly be

considered as relating to a matter of concern to the community and discloses a

public official’s misfeasance.3 Therefore, the court concludes that Dr. Krug’s

speech was on a matter of public concern and was not merely a personal grievance.

3 In so finding, the court acknowledges Defendants’ arguments in their reply brief about the

factual backdrop of the Azzaro decision and that the court explicitly noted that not all public

employee complaints about sexual harassment are matters of public concern. (Doc. 108, p. 25.)

Defendants did not address the balancing of Dr. Krug’s interest in speaking

about a matter of public concern and the value to the community in his being free

to speak on such matters against BU’s interest as an employer. (See Doc. 90.)

Accordingly, Dr. Krug likewise did not offer an argument, but noted that in

Azzaro, the court concluded that the public interest was sufficient to outweigh any

legitimate countervailing governmental interest that might have been implicated.

(Doc. 97, p. 46.)

In Azzaro, the court noted that striking the appropriate balance under the

circumstances is not difficult, and that the public interest in such allegations clearly

outweighed any countervailing governmental interest that might have been

implicated. Azzaro, 110 F.3d at 980. Furthermore, the court noted that because the

complainant did not work in the same office as the subject of the sexual

harassment complaint and did not have an employment relationship requiring trust

and confidence, the reports could not have posed threats to the government’s

interest in efficiency of effectiveness. Id.

Because Defendants have failed to set forth a specific countervailing

government interest in this matter or explain how it such (unidentified) interest

would outweigh Dr. Krug’s interest in speaking about a matter of great public

However, upon examining the reasoning used by the Azzaro court, as well as the relevant

standard to be applied, the court easily concludes that the circumstances present in this case are

such that Dr. Krug’s speech involved a matter of public concern.

concern as well as the value to the community of such speech, the court concludes

that the balance weighs in favor of Dr. Krug.

Having determined that Dr. Krug’s speech was protected by the First

Amendment, the court turns to whether the right at issue here was “clearly

established.” Generally, it is clearly established that speech on a matter of public

concern, such as discrimination within the agency, is protected by the First

Amendment. See Connick, 461 U.S. at 146 (“[a]lthough the subject matter of Mrs.

Givhan’s statements were not the issue before the Court, it is clear that her

statements concerning the School District’s allegedly racially discriminatory

policies involved a matter of public concern”); see also Fender v. Del. Div. of

Revenue, 628 Fed. App’x 95, 97 (3d Cir. 2015) (holding that “[g]ender

discrimination is clearly a matter of political and social concern”). Additionally,

“[s]peech involving government impropriety occupies the highest rung of First

Amendment protection.” Feldman v. Phila. Housing Auth., 43 F.3d 823, 830 (3d

Cir. 1994). “Moreover, the public’s substantial interest in unearthing

governmental improprieties requires courts to foster legitimate whistleblowing.”

Id. Furthermore, cases decided prior to Dr. Krug’s termination are sufficiently

similar to put reasonable officials on notice that their conduct would be unlawful.

See Azzaro, 110 F.3d at 968; see also Montone v. City of Jersey City, 709 F.3d 181

(3d Cir. 2013).

The court acknowledges that Defendants have argued that there is no clearly

established constitutional rights that have been violated in this case. (Doc. 90, p.

43.) However, this assertion is premised on Defendants’ defining the right at issue

as the termination “of an at-will employee after an independent investigation

revealed that he had violated university policies and federal law.” (Id.) The court

is unable to conclude that this narrow definition is appropriate and has not defined

the right at issue so narrowly in this opinion.

The final determination for qualified immunity purposes is whether

Defendants’ conduct clearly violated Dr. Krug’s constitutional rights. While this is

ordinarily a question of law to be determined by the court, where the determination

is dependent upon disputed factual issues, the question is more properly resolved

by a jury. Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006) (citing

Johnson v. Jones, 515 U.S. 304, 313 (1995)). So it is here. There are numerous

factual disputes in this case specifically revolving around the individual

Defendants’ actions as they relate to the investigation, Dr. Krug’s PDC, and Dr.

Krug’s termination. Therefore, whether the individual Defendants’ conduct clearly

violated Dr. Krug’s constitutional rights is entirely dependent on these disputed

factual issues. This determination is not appropriate for resolution at the summary

judgment stage and will be left to a jury to resolve. Therefore, Defendants’

summary judgment motion is denied to the extent that the individual Defendants

seek summary judgment on Dr. Krug’s First Amendment claims on the basis of

qualified immunity.

ii. Due Process – Tenure

The next constitutional claim at issue is Dr. Krug’s due process claim

premised on tenure as a property interest. For procedural due process claims under

42 U.S.C. § 1983, a plaintiff must allege that (1) he was deprived of an individual

interest that is encompassed within the Fourteenth Amendment’s protection of life,

liberty, or property, and (2) the procedures available to him did not provide due

process of law. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

The meaning of “tenure” within PASSHE universities, including BU, was

that “[t]enure shall mean the right of a faculty member to hold his/her position and

not to be removed therefrom except for just cause as hereinafter set forth in this

Article or except as provided elsewhere in this Agreement.” (Doc. 80, ¶ 11; Doc.

89, ¶ 11.) However, a factual dispute exists as to whether or not Dr. Krug held a

tenured position at BU. (See Doc. 89, ¶ 11.)

Defendants do not appear to dispute that if Dr. Krug held a tenured position

at BU, that he had a property interest in continued employment. Indeed,

Defendants could not do so, as it is clear that there is a property interest in

continued employment where tenured employees have been informed that they

may only be terminated for cause. See Gilbert v. Homar, 520 U.S. 924, 928–29

(1997) (holding that “public employees who can be discharged only for cause have

a constitutionally protected property interest in their tenure and cannot be fired

without due process); see also McKinney v. Univ. of Pittsburgh, 915 F.3d 956,

960–61 (3d Cir. 2019) (“the Court has recognized a property interest in continued

employment where tenured faculty have been expressly informed that they may be

terminated only for cause”) (internal quotations omitted). Therefore, if Dr. Krug

held a tenured position at BU, his property interest is a clearly established right.

However, this due process claim is replete with factual disputes, beginning with

whether or not Dr. Krug was actually granted tenure. Additionally, the events

surrounding Dr. Krug’s PDC and whether he was truly given due process by a

neutral decisionmaker are replete with factual disputes.

Without even being able to determine whether Dr. Krug was an at-will

employee or a tenured employee with a property interest in continued employment,

as well as numerous other factual disputes, the court is unable to determine

whether his due process right was violated by the individual Defendants. Because

factual disputes preclude a finding that Defendants are entitled to summary

judgment on this claim on the basis of qualified immunity, Defendants’ summary

judgment motion is denied in this respect.

iii. Due Process – Reputation

The last constitutional claim at issue is Dr. Krug’s due process claim

premised on his reputation as a liberty interest. Here, Defendants’ only argument

is that Dr. Krug cannot sufficiently satisfy the “stigma-plus” test in order to

succeed on his due process claim. In fact, Defendants concede that individuals

have a protectable interest in their reputation. (Doc. 90, p. 33.) Thus, the

constitutional right at issue on this claim is clearly established. The question of

whether the individual Defendants’ conduct violated that right is one that cannot be

resolved on a motion for summary judgment, as several factual disputes exist

surrounding Dr. Krug’s PDC and whether he was truly given due process by a

neutral decisionmaker. These factual disputes are more properly left to a jury.

Therefore, Defendants’ summary judgment motion is denied to the extent that the

individual Defendants seek summary judgment on Dr. Krug’s due process claim

relating to his reputation on the basis of qualified immunity.

B. Defendants’ Motion for Summary Judgment on All Claims

Defendants moved for summary judgment on all of Dr. Krug’s claims. Dr.

Krug’s remaining claims can be separated into two main categories: due process

claims and retaliation claims. Though the retaliation claims are brought for

different instances of speech and under different statutes, the analysis is almost

identical. On the retaliation claims, Defendants argue that they are entitled to

summary judgment because Dr. Krug cannot prove a causal connection between

protected activities and termination. On the due process claims, Defendants argue

that Dr. Krug did not have a property interest in continued employment and that

they did not damage his reputation.

The court has carefully reviewed the voluminous filings of the parties and

finds that there are numerous disputes of material facts on these claims in this case

and Defendants are therefore not entitled to summary judgment.

C. Dr. Krug’s Motion for Summary Judgment on Due Process Claims

Dr. Krug moved for summary judgment only on the due process claims in

this case. Dr. Krug argues that the entire investigation and PDC were a sham, that

Krause was not a neutral decisionmaker, and that his termination was pre-decided.

Again, having carefully reviewed the voluminous filings of the parties, the court

finds that there are numerous disputes of material facts on the due process claims

in this case and Plaintiff is therefore not entitled to summary judgment.

CONCLUSION

For the reasons stated herein, the court will deny Plaintiff’s motion for

partial summary judgment, Doc. 79, as well as Defendants’ motion for summary

judgment, Doc. 88. An appropriate order will issue.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: February 13, 2023