# Krug v. Bloomsburg University

> District Court, M.D. Pennsylvania · February 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10412797

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412797

## How later opinions describe it (automated extraction)

- holding that the “clearly established” standard does not require that “the very action in question has previously been held unlawful”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412797. Public record. Not legal advice.