# Bishop v. University of Scranton

> District Court, M.D. Pennsylvania · July 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10413403

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** July 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10413403

## How later opinions describe it (automated extraction)

- holding that the first “test imposes a rigorous standard that is rarely satisfied”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
BENJAMIN BISHOP,

Plaintiff, CIVIL ACTION NO. 3:22-CV-01831
v.
(MEHALCHICK, M.J.)
UNIVERSITY OF SCRANTON, et al.,

Defendants.
MEMORANDUM
Presently before the Court a motion to dismiss brought by Defendants University of
Scranton (the “University”) and Jeffrey Gingerich (“Provost Gingerich”) (“University
Defendants”) (Doc. 13), and motion to dismiss brought by Defendant University of Scranton
Faculty Affairs Council (the “FAC”) (Doc. 15). On November 16, 2022, Plaintiff Benjamin
Bishop (“Bishop”) initiated this action by filing the complaint pursuant to 28 U.S.C. § 1331
and 1343. (Doc. 1). The parties have consented to proceed before the undersigned United
States Magistrate Judge pursuant to Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). (Doc. 18). For
the following reasons, Defendants’ motions to dismiss shall be GRANTED, and Plaintiff
shall be granted 28 days to file an amended complaint. (Doc. 13; Doc. 15).
I. BACKGROUND AND PROCEDURAL HISTORY
The events giving rise to this action, as set forth in the complaint, are as follows. At all
times germane to this action, Bishop was a tenured full professor at the University and a
member of the bargaining unit represented by the FAC. (Doc. 1, ¶¶ 9, 58). All parties were
bound by the provision of the Faculty Handbook of the University dated May 24, 2021. (Doc.
1, ¶ 10, at 19-115). The Faculty Handbook governs the relationship between the University
and its faculty, including the practices and policies for dismissal of a tenured professor. (Doc.
1, ¶ 11). After the Faculty Hearing Committee held a hearing and recommended that the
University terminate Bishop, Joseph Marina, President of the University, accepted the
recommendation and terminated Bishop’s employment on May 10, 2022, for refusing to
disclose his COVID-19 vaccination status. (Doc. 1, ¶ 13, at 117). According to the complaint,

Bishop was fully vaccinated, but “did not believe that it was the Defendant’s right to compel
him to disclose his vaccination status.” (Doc. 1, ¶ 14, at 119).
On November 16, 2022, Bishop filed the complaint against the University, Gingerich,
and the FAC (collectively, “Defendants”). (Doc. 1). In the complaint, Bishop asserts the
following causes of action: compulsion of political speech against the University (Count I);
violation of the rights to privacy and body autonomy found in the Fourteenth Amendment
against the University (Count II); wrongful dismissal in violation of Pennsylvania public
policy against the University (Count III); breach of contract against the University (Count
IV); violation of rights to due process against the University (Count V); violation of right to
be free from selective enforcement against the University (Count VI); defamation against the

University and Provost Gingerich (Count VII); and breach of duty of fair presentation against
the FAC (Count VIII). (Doc. 1, at 4-15). For relief, Bishop requests compensatory damages,
as well as attorney’s fees. (Doc. 1, at 16).
On January 30, 2023, University Defendants filed a motion to dismiss the complaint,
as well as a brief in support. (Doc. 13; Doc. 14). On the same day, the FAC filed a motion to
dismiss the complaint pursuant to Rule 12(b)(6), as well as a brief in support. (Doc. 15; Doc.
16). On March 17, 2023, Bishop filed briefs in opposition to Defendants’ motions to dismiss.
(Doc. 25; Doc. 26). The FAC filed a reply brief on March 30, 2023, and the University and
Gingerich filed a reply brief on March 31, 2023. (Doc. 27; Doc. 28).
The motions to dismiss has been fully briefed and are ripe for disposition. (Doc. 14;
Doc. 16; Doc. 25; Doc. 26; Doc. 27; Doc. 28).
II. MOTION TO DISMISS STANDARDS
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-
pleaded allegations in the complaint are true and viewing them in the light most favorable to
the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v.
Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)). Although a court must accept the factual allegations in a complaint as true, it
is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal
conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir.
2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Additionally, a court

need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated
Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
In Ashcroft v. Iqbal, the United States Supreme Court held that, when considering a
motion to dismiss, a court should “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” 556 U.S. 662, 679 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating a

motion to dismiss, a court may consider the facts alleged on the face of the complaint, as well
as “documents incorporated into the complaint by reference, and matters of which a court
may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
III. DISCUSSION
In the complaint, Bishop brings this action pursuant to 28 U.S.C. § 1331 and 1343 and

raises seven causes of action against the University, one cause of action against Provost
Gingerich, and one cause of action against the FAC. (Doc. 1). Defendants move to dismiss
the claims raised in Bishop’s complaint pursuant to Rule 12(b)(6). (Doc. 14; Doc. 16). The
Court will address each motion to dismiss separately.
A. UNIVERSITY DEFENDANTS’ MOTION TO DISMISS
University Defendants set forth the following arguments for dismissal: (1) Bishop’s
constitutional claims must be dismissed where he has not alleged that the University is a state
actor; (2) Bishop’s constitutional claims must be dismissed where he has not alleged a
violation of his constitutional rights; (3) Bishop’s wrongful termination claim must be

dismissed “where his [c]omplaint alleges that his termination was consistent with Pennsylvania
public policy;” (4) Bishop’s breach of contract claim must be dismissed “where it is pre-
empted by federal law, impermissibly challenges the outcome rather than the process of his
termination proceedings, and where he was terminated for adequate cause;” (5) Bishop’s
contractual due process claim must be dismissed “where he was provided with all process
required by the Faculty Handbook;” and (6) Bishop’s defamation claim must be dismissed
“where it is preempted by federal law and where [Bishop] has only alleged non-actionable
statements of opinion.” (Doc. 14, at 14-15).
1. Counts I, II, and VI
In Counts I, II, and VI of the complaint, Bishop asserts that the University violated his
constitutional rights under the First and Fourteenth Amendments, thus entitling him to a
recovery under 42 U.S.C. § 1983. (Doc. 1, at ¶¶ 15-33, 48-51). To assert a viable claim under
§ 1983, Bishop “must allege the violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation was committed by a person

acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). “The
color of state law element is the threshold issue; there is no liability under § 1983 for those not
acting under color of law.” Groman v. Twp. of Malapan, 47 F.3d 628, 638 (3d Cir. 1995). Here,
the University moves to dismiss Bishop’s § 1983 claims on the basis that he has not alleged
facts sufficient to plausibly show that the University was a state actor.
“[W]hether a defendant is acting under color of state law—i.e., whether the defendant
is a state actor—depends on whether there is ‘such a close nexus between the State and the
challenged action that seemingly private behavior may be fairly treated as that of the State
itself.’ ” Chetty v. Sardella, No. 22-CV-1549, 2022 WL 2048661, at *2 (E.D. Pa. June 7, 2022)

(quoting Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005)). In this undertaking, the United
States Court of Appeals for the Third Circuit has “outlined three broad tests generated by
Supreme Court jurisprudence to determine whether state action exists: (1) whether the private
entity has exercised powers that are traditionally the exclusive prerogative of the state,” (2)
“whether the private party has acted with the help of or in concert with state officials,” and
(3) “whether the State has so far insinuated itself into a position of interdependence with the
acting party that it must be recognized as a joint participant in the challenged activity.” Kach
v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and alteration omitted). Here,
the University does not qualify as a state actor under any of the tests.

The question under the first test “is whether the function performed has been
traditionally the exclusive prerogative of the State.” Rendell-Baker v. Kohn, 457 U.S. 830, 842
(1982) (internal quotations omitted). This test imposes a “heavy burden” that is rarely met.
Kach, 589 F.3d at 648; see also Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 165 (3d Cir. 2001)
(holding that the first “test imposes a rigorous standard that is rarely satisfied”). Functions

held to be the exclusive prerogative of the state include administration of elections of public
officials, Terry v. Adams, 345 U.S. 461, 468–70 (1953), operation of a company-owned town,
Marsh v. Alabama, 326 U.S. 501, 505–09 (1946), “the forcible removal of children from their
homes,” Est. of Adam Earp v. City of Phila., No. 96-CV-7141, 1997 WL 255506, at *2 (E.D. Pa.
May 7, 1997), and “internal affairs investigations of police officers,” Beu v. City of Vineland,
No. 20-CV-02510, 2020 WL 7418007, at *11 (D.N.J. Dec. 18, 2020).
In response to the motion to dismiss, Bishop argues that when the University adopted
the Royals Safe Together policy, which “mirrors” the federal and state government policies
regarding vaccination, testing, and masking, the University “acted under color of state law

because it was performing a traditional public function—creating healthcare policies designed
to prevent the spread or transmission of a virus.” (Doc. 25, at 14-15). Bishop contends that
“[t]he implementation of alleged health and safety policies during a pandemic are functions
that are traditionally the exclusive prerogative of the state.” (Doc. 25, at 14) (quotation marks
omitted). However, Bishop has failed to identify a single case in which a private school was
considered a state actor. “[C]ourts have overwhelmingly held that private schools and colleges
are not state actors, irrespective of whether they receive government funding.” Comegys v.
Valley Forge Mil. Acad. & Coll., No. CV 21-3848, 2022 WL 3229329, at *5 (E.D. Pa. Aug. 10,
2022); see also Stetson Sch., 256 F.3d at 165 (3d Cir. 2001) (“[I]t is clear that Stetson’s receipt

of government funds did not make it a state actor.”); Albert v. Carovano, 851 F.2d 561, 571 (2d
Cir. 1988); Berrios v. Inter Am. Univ., 535 F.2d 1330, 1332 (1st Cir. 1976) (“The district court
properly refused to take into account financial assistance from the federal government in
considering the presence of state action.”); Blouin v. Loyola Univ., 506 F.2d 20 (5th Cir. 1975);
Grafton v. Brooklyn L. Sch., 478 F.2d 1137 (2d Cir. 1973); Becker v. City Univ. of Seattle, 723 F.

Supp. 2d 807, 811 (E.D. Pa. 2010) (“[The plaintiff] has failed to identify a single case in which
higher education has been deemed a traditional public function, and the Court’s own research
has verified that none exists.”); Fisher v. Driscoll, 546 F. Supp. 861, 866 (E. D Pa. 1982) (“[T]he
small amount of state funds received by Villanova do not make the University's conduct state
action.”).
Consistent with well-settled precedent, the Court rejects Bishop’s assertion that the
University’s adoption of a policy similar to the federal and Pennsylvania health regulation
regarding COVID-19 converted the University’s action into that of the state for the purposes
of Bishop’s constitutional claims. See Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974)

(“The mere fact that a business is subject to state regulation does not by itself convert its action
into that of the State for the purposes of the Fourteenth Amendment.”). The Supreme Court
has found no merit in the argument that extensive state regulation of a school was sufficient
to make it a state actor, because the challenged conduct by a private school “was not
compelled or even influenced by any state regulation.” Rendell-Baker, 457 U.S. at 841.
Furthermore, in Finkbeiner v. Geisinger Clinic, this Court held that Pennsylvania’s “duty to
protect the health of the people and employ the most effective methods of disease suppression
is not exclusive,” and healthcare providers are not prohibited from doing more than the state-
mandated minimum to protect their patients and staff. No. 4:21-CV-01903, 2022 WL

3702004, at *5-6 (M.D. Pa. Aug. 26, 2022). Bishop has not met his heavy burden of showing
that it was a state actor under the first test. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158
(1978) (“While many functions have been traditionally performed by governments, very few
have been ‘exclusively reserved to the State.’ ”); Stetson Sch., Inc., 256 F.3d at 165 (noting that
the first “test imposes a rigorous standard that is rarely satisfied” (ellipsis, internal quotation

marks and citation omitted)).
The second test is “whether the private party has acted with the help of or in concert
with state officials.” Kach, 589 F.3d at 646. Under this test, “courts must ask first whether the
claimed constitutional deprivation resulted from the exercise of a right or privilege having its
source in state authority; and second, whether the private party charged with the deprivation
could be described in all fairness as a state actor.” Mark v. Borough of Hatboro, 51 F.3d 1137,
1143 (3d Cir. 1995) (internal citation and quotations omitted). Examples of state action under
this test include an employee conspiring with a police officer to racially discriminate against
a patron, Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970), and a private party’s joint

participation with state officials to seize a disputed property, Lugar v. Edmondson Oil Co., 457
U.S. 922, 942 (1982).
Bishop submits that the University is a state actor because it “followed the deep and
continuous encouragement of various U.S. agencies” and “Pennsylvania state officials” that
“encourage[ed] private employers to require vaccination.” (Doc. 1, ¶¶ 21-22). In opposition
to the instant motion, Bishop alleges the government helped in the adoption of the Royals
Back Together plan because it is “in keeping with,” “aligned with,” or “informed by”
guidance from the Centers for Disease Control and Prevention. (Doc. 25, at 15). However,
Bishop does not allege facts demonstrating that the University and the state jointly agreed to

adopt the Royals Back Together plan, or that the decision “resulted from the exercise of a
right or privilege having its source in state authority.” Mark, 51 F.3d at 1143. “Action taken
by private entities with the mere approval or acquiescence of the State is not state action.”
Finkbeiner, 2022 WL 3702004, at *6 (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52
(1999)). Thus, the University does not meet the definition of a state actor under the second

test.
The third test is “whether the State has so far insinuated itself into a position of
interdependence with the acting party that it must be recognized as a joint participant in the
challenged activity.” Kach, 589 F.3d at 646. In Burton v. Wilmington Parking Authority, the
United States Supreme Court found, under this test, that a restaurant that practiced racial
discrimination and was located within a public parking garage was a state actor because the
state had many “obligations and responsibilities” regarding the operation of the restaurant,
“mutual benefits” were conferred, and the restaurant operated “as an integral part of a public
building devoted to a public parking service.” 365 U.S. 714, 724 (1961). The Supreme Court

later applied the Burton test to a high school athletic association in Brentwood Academy v.
Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), finding state action because
a “great majority of the association’s member schools were public, representatives of the
schools acting in their official capacities selected members of the association’s governing
bodies, [and] state officials also sat on those bodies in an ex officio capacity.” Benn v. Universal
Health Sys., Inc., 371 F.3d 165, 172-73 (3d Cir. 2004) (citing Brentwood, 531 U.S. at 298-300).
Moreover, “the association was largely financed by gate receipts from member-school
tournaments, and association employees participated in the state retirement system.” Benn,
371 F.3d at 172-73.

Nothing in Bishop’s complaint suggests that the state has “insinuated itself into a
position of interdependence” with the University, as Kach’s third test requires. See 589 F.3d
at 646. Under that test, “state action will be found if there is a sufficiently close nexus between
the state and the challenged action of the regulated entity so that the action may be fairly treated
as that of the State itself.” Boyle v. Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71,

76 (3d Cir. 1991) (emphasis in original and internal quotation marks and citation omitted).
“[T]he purpose of this requirement is ‘to assure that constitutional standards are invoked only
when it can be said that the State is responsible for the specific conduct of which the plaintiff
complains.’” Boyle, 925 F.2d at 76 (some emphasis in original) (quoting Blum v. Yaretsky, 457
U.S. 991, 1004 (1982)). “Acts of private contractors do not become acts of the State simply
because they are performing public contracts. The State will be held responsible for a private
decision only when it has exercised coercive power or has provided such significant encouragement,
either overt or covert, that the choice must in law be deemed that of the State.” Boyle, 925 F.2d at 76
(emphasis supplied and internal quotation marks and citations omitted).

Bishop claims the University “became a state actor after following the deep and
continues encouragement of Pennsylvania state officials encouraging private employers to
require vaccination.” (Doc. 1, ¶ 22). Further, Bishop attempts to argue that “the government
is a joint participant” in the Royals Back Together plan and that the University “established
its COVID-19 policies by aligning with the CDC’s guidelines and recommendations.” (Doc.
25, at 16). These assertions do not reach the degree of involvement and interdependence
present in Burton and Brentwood. Bishop does not allege the state knew about, let alone agreed
to, the Royals Back Together plan. Therefore, Bishop’s complaint does not show a connection
between the University and the state to satisfy the definition of a state actor under the third

Kach test.
In sum, Bishop has failed to allege sufficient facts to establish that the University could
be considered a state actor for § 1983 purposes. Thus, the conduct being challenged here, as
pleaded, was not undertaken “under color of law.” The complaint lacks factual allegations to
support the conclusion that the University is a state actor. Accordingly, University

Defendants’ motion to dismiss is granted with respect to Bishop’s § 1983 constitutional
claims.
2. Count III
In Count III of the complaint, Bishop asserts a wrongful termination claim against the
University for violating Pennsylvania’s public policy regarding religious freedom and
compulsion of political speech. (Doc. 1, ¶¶ 34-36). Employment in Pennsylvania is typically
at-will. See McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (2000) (“[T]he
presumption of all non-contractual employment relations is that it is at-will and that this
presumption is an extremely strong one.”) (emphasis in original); White v. FedEx Corp., No.
1:19-CV-00325, 2019 WL 5102168, at *4 (M.D. Pa. Oct. 11, 2019) (“In the context of an

employment-at-will relationship, Pennsylvania courts have long recognized that an employer
may terminate an employee for any reason absent a contractual or statutory provision to the
contrary.”) (citing McLaughlin, 750 A.2d at 286). There is one exception to this general rule:
when a termination violates a “clear mandate of public policy.” Weaver v. Harpster, 975 A.2d
555, 563 (2009). This exception applies “only in the most limited circumstances,” and “the
power of the courts to declare pronouncements of public policy is sharply restricted.” Weaver,
975 A.2d at 563 (citing Mamlin v. Genoe, 17 A.2d 407, 409 (1941)). The Supreme Court of
Pennsylvania has instructed that a court should utilize the public policy exception “[o]nly in
the clearest of cases.” Weaver, 975 A.2d at 563.
What constitutes “public policy” in the Commonwealth is determined by reference to
judicial decisions of Pennsylvania courts, the Pennsylvania constitution, and statutes
promulgated by the Pennsylvania legislature. McLaughlin, 750 A.2d at 288. An employee’s
subjective belief that his termination violated public policy is not sufficient: “[A]bsent a

violation of law, it is difficult for an at-will employee seeking recovery for wrongful discharge
to point to a common law, legislative, or constitutional principle from which a clear public
policy [mandate] could be inferred.” Clark v. Modern Grp., Ltd., 9 F.3d 321, 328 (3d Cir. 1993).
Accordingly, “Pennsylvania courts have recognized the public policy exception where the
employer: (1) compels the employee to engage in criminal activity; (2) prevents the employee
from complying with a duty imposed by statute; or (3) discharges the employee when a statute
expressly prohibits such termination.” Zorek v. CVS Caremark Corp., No. 1:13-CV-1949, 2014
WL 12487695, at *3 (M.D. Pa. Apr. 16, 2014) (citing Tanay v. Encore Healthcare, LLC, 810 F.
Supp. 2d 734, 738 (E.D. Pa. 2011)).

University Defendants argue that this claim is fatally flawed for two reasons. First,
University Defendants argue Bishop’s claim must be dismissed because it is “preempted by
federal labor law since the Faculty Handbook is a collective bargaining agreement,” and “the
Pennsylvania Superior Court has held as a matter of substantive law that a cause of action for
wrongful discharge in violation of public policy is not available for unionized employees.”
(Doc. 14, at 23-24) (citing Ciferni v. Day & Zimmerman, Inc., 529 F. App’x 199, 202-04 (3d Cir.
2013)). Second, University Defendants argue that Bishop fails to identify any public policy
that would prevent the University from terminating him for refusing to follow the Royals Back
Together plan. (Doc. 14, at 24). To the extent Bishop vaguely alleges that his termination

violated Pennsylvania law against compulsion of speech and religious freedom, University
Defendants assert that Bishop “was not compelled to speak nor required to engage in symbolic
speech,” and Bishop “alleges no other facts concerning his religion or how it relates to the
facts at issue in this cause nor what Pennsylvania law could have been violated.” (Doc. 14, at
24 n.4).

In response, Bishop concedes that “[w]hile [Bishop] acknowledges that there is no
crime or statute that relates to [his] conduct, the University violated a clear mandate of public
policy in terminating [Bishop] after he was vaccinated in accordance with the University’s
COVID-19 policy, which was created in conformity with the CDC guidelines in place at the
time.” (Doc. 25, at 20). Bishop submits that he “complied with public policy, the University’s
guidelines, CDC guidelines and state guidelines with regard to vaccination,” because he did,
in fact, get vaccinated. (Doc. 25, at 20-21).
Under Pennsylvania law, “union employees subject to collective bargaining
agreements may not pursue wrongful discharge claims against former employers.” Coppola v.

Jneso–Pocono Med. Ctr., 400 F. App’x 683, 684 (3d Cir.2010); see also Black v. Cmty. Educ. Ctr.,
Inc., No. 13-CV-6102, 2014 WL 859313, at *4 (E.D. Pa. Mar. 4, 2014) (dismissing wrongful
termination claim brought by employee subject to a collective bargaining agreement). Bishop
does not provide any argument as to the validity of the arbitration provision in the FAC, a
collective bargaining agreement. Further, Bishop does not provide any argument that directly
counters the clear Pennsylvania case law holding that wrongful termination claims are only
available to at-will employees, and he does not argue that he was ever an at-will employee of
the University.
Accordingly, University Defendants’ motion to dismiss is granted with respect to

Count III of the complaint.
3. Counts IV and V
In Counts IV and V of the complaint, Bishop asserts a breach of contract claim and
violation of due process claim against the University based on the Faculty Handbook. (Doc.
1, ¶¶ 37-43, 44-47). In Count IV, Bishop contends the University breached the Faculty
Handbook because he was terminated “for reasons which were not related, directly and

substantially, to the fitness of [Bishop] in his professional capacity as a teacher and
researcher;” and “because of his exercise of his rights as an American citizen as allowed by
the faculty handbook.” (Doc. 1, ¶¶ 41-42). Specifically, Bishop asserts:
The University breached the agreement between [Bishop] and the University,
because [Bishop] was terminated ostensibly for refusing to disclose his
vaccination status which is not dismissal for adequate cause. While Jeffrey
Gingerich stated at the termination hearing that [Bishop] was bring terminated
because of a violation of Section 5.4L of the Faculty Handbook, which states
that the general responsibilities of full-time faculty members require
“[m]aintenance of a high standard of conduct, integrity, trust, and
professionalism when dealing with students, other faculty, staff, administrators,
and the public; . . .” the handbook does not indicate that this requirement is
cause for termination. Moreover, no evidence was presented at the termination
hearing that [Bishop] violated this particular section, especially because no
medical evidence in regard to COVID-19 as presented at the termination
hearing.

(Doc. 1, ¶ 39).
In Count V, Bishop alleges that the University failed to afford due process before
terminating Bishop’s employment because: (1) he was not allowed to be present at the hearing
when his termination was considered; (2) he was not allowed to call witnesses or cross-
examine witnesses on his behalf; (3) he was not allowed to present evidence at the proceeding;
(4) the University failed to meet its burden of proving that he had done anything which would
justify termination; (5) no witnesses were called to establish that he had done anything wrong;
and (6) no witnesses were sworn in and no evidence was presented that he was guilty of any
wrongdoing. (Doc. 1, ¶¶ 46-47). Bishop contends “Provost Gingerich ran the meeting and
presented unsworn testimony as to what he believed [Bishop] was guilty of to justify his
termination.” (Doc. 1, ¶ 47).
University Defendants argue that Bishop’s claims in Count IV and V fail because he is

a member of the FAC, a union, and the Faculty Handbook, a collectively-bargained for
agreement, provides that the remedy for any grievances over the application of the Faculty
Handbook is through the FAC’s decision to grieve the issue and, in its discretion, to file for
arbitration. (Doc. 14, at 25) (citing Faculty Handbook § 2 (recognizing FAC as a faculty
bargaining unit), and Faculty Handbook § 16 (setting forth grievance and arbitration
provisions)). University Defendants also argue that Bishop failed to follow the contractually-
required process for grievances regarding the University’s violation of the Faculty Handbook
in its decision to terminate his employment. (Doc. 14, at 28). In addition, University
Defendants submit that Bishop’s due process claim fails because the procedure by which
Bishop was terminated afforded him adequate process. (Doc. 14, at 28).

In opposition to the motion to dismiss, Bishop maintains that the University breached
its contract with him when it terminated his employment. (Doc. 25, at 22). Bishop states that
there was no evidence presented at the termination hearing to suggest he did not maintain a
high standard of conduct, integrity, trust, and professionalism, and the Faculty Handbook
does not provide that Section 5.4(L) is “adequate cause” for termination. (Doc. 25, at 22).
Bishop also alleges that he followed the procedures set forth in the Faculty Handbook to
challenge the termination process, but the University “breached its contract with [Bishop] by
failing to adhere to its policies regarding academic freedom and for ostensibly retaliating
against [Bishop]’s exercise of academic freedom.” (Doc. 25, at 23, 25).
At the onset, it is clear that, to the extent that Counts IV and V are in an attempt to
enforce the terms of the Faculty Handbook, and Defendants’ duties arising therefrom, the
claims are completely preempted by Section 301 of the Labor Management Relations Act
(“LMRA”). Section 301 of the LMRA has been held to completely preempt the field of labor

contracts such that any claim that requires interpretation of the terms of a CBA is deemed to
be preempted by Section 301. See Avco Corp. v. Aero Lodge, I.A.M. & A.W., 390 U.S. 557, 560
(1968) (finding that LMRA Section 301 completely preempts the field of labor contracts);
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985) (“questions relating to what the parties
to a labor agreement agreed, and what legal consequences were intended to flow from
breaches of that agreement, must be resolved by reference to uniform federal law, whether
such questions arise in the context of a suit for breach of contract or in a suit alleging liability
in tort”). Indeed, even if Bishop alleged the claims were brought pursuant to the Pennsylvania
law of contracts, the complete preemption doctrine requires that it be deemed a federal

Section 301 claim. Allis-Chalmers Corp., 471 U.S. at 210-11. Therefore, in light of the long-
standing policy of complete preemption in the interpretation of labor contracts, Counts IV
and V of Bishop’s complaint are not sufficient to give this Court federal question jurisdiction.
To the extent Bishop brings state law claims arising from his termination from the
University in violation of the Faculty Handbook and the University’s alleged failure to afford
Bishop sufficient process, such claims will be dismissed for failure to state a claim. In the
complaint, Bishop alleges that the University breached the Faculty Handbook because he was
dismissed for reasons not related, directly and substantially, to Bishop’s fitness in his
professional capacity as a teacher and researcher. (Doc. 1, ¶ 41).

Relevant here, Section 26.3 of the Faculty Handbook provides that “[t]ermination of
a tenured appointment, or of a special or probationary appointment before the end of the
specified term, may be effected by the institution for only financial exigency, discontinuance
of a program, national emergency or major catastrophe, or dismissal for adequate cause.”
(Doc. 1, at 72). The Faculty Handbook explains that “[a]dequate cause for a dismissal will be

related, directly and substantially, to the fitness of the faculty member in the faculty member’s
professional capacity as a teacher and researcher. Dismiss will not be used to restrain faculty
members in their exercise of academic freedom or other rights as American citizens.” (Doc.
1, at 73).
Having reviewed the Faculty Handbook, the Court is persuaded by University
Defendants’ argument that the collective bargaining agreement is clear and unambiguous in
setting out the process that is reserved to the University and its faculty for arriving at a
conclusive determination as to whether Bishop’s tenure should be terminated. While Bishop
“is free to assert in a court a law that the process . . . that was afforded [to] him did not comply
with the [Faculty Handbook]’s terms, he is not free to demand that a jury re-consider and re-

decide the merits of his termination.” Murphy v. Duquesne Univ. Of The Holy Ghost, 565 Pa.
571, 596, 777 A.2d 418, 433 (2001). Moreover, there is nothing in the Faculty Handbook to
indicate that any of the judgments relating to a faculty member’s continued employment with
the University, or lack thereof, would be open to a judge or jury to override. Indeed, it would
be unreasonable to believe that the parties intended that the process for deciding the matter
of employment, which is so carefully discussed in the Faculty Handbook t the point of final
determination, could be completely circumvented by the filing of a civil action. Rather, the
detailed provisions of the Faculty Handbook for deciding the matter have inherent in them
the intent of the collectively-bargaining parties that the agreed-upon process was to be final.
That intent, with respect to the finality of the process, is express and enforceable. Therefore,
the Court finds that Bishop’s breach of contract claim fails as a matter of law because he is
not entitled to litigate the merits of his termination in this breach of contract action. That is
to say, the questions as to whether he violated Section 5.4(L) of the Faculty Agreement and

whether this violation should have resulted in his termination have been conclusively and
finally decided.
Turning to Bishop’s due process claim, the Court finds that Bishop has not plausibly
alleged that he was deprived of the process required by the Faculty Handbook. In the
complaint, Bishop claims the University violated his due process rights guaranteed by the
Faculty Handbook because the University prevented him from attending his own termination
hearing, thereby preventing him from calling witnesses or cross-examining witnesses. (Doc.
1, ¶¶ 46-47, 49, at 121; Doc. 25, at 27).
Contrary to Bishop’s assertions, the Faculty Handbook does not provide him the right
to introduce documentary evidence, call witnesses, or cross-examine witnesses. Rather,

Appendix IV of the Faculty Handbook sets forth the procedural requirements relating to the
dismissal of faulty members. (Doc. 1, at 88). In relevant part, Appendix IV provides that
dismissal of a faculty member shall be initiated through a sequence of steps, including a formal
hearing on the charges in which “[t]he burden of proof that adequate cause exists rests with
the University and shall be satisfied only by clear and convincing evidence in the record
considered as a while.” (Doc. 1, at 88, 90). “If the faculty hearing waives a hearing, but denies
the charges, or asserts that the charges do not support a finding of adequate cause, the Faculty
Hearing Committee will evaluate all available evidence and rest its recommendation upon
the evidence in the record.” (Doc. 1, at 88-89). If the faculty member chooses to attend the
termination hearing, “the faculty member will be permitted to have an advisor from the
University community and legal counsel of the faculty member’s choosing,” will have the
right to produce witnesses as well as documentary and other evidence, and will have the right
to confront and cross-examine all witnesses. (Doc. 1, at 90). “The Hearing Committee's

recommendation will be based solely on the hearing record.” (Doc. 1, at 91).
Here, Bishop’s failure to attend the termination hearing is not a violation of the process
described above. Prior to Bishop’s termination hearing, he was advised that he could not
participate remotely and that he would not be permitted to attend the hearing unless he wore
a “higher-grade mask” and provided a negative COVID test result. (Doc. 1, ¶ 49, at 121; Doc.
25, at 28). Upon receiving this letter from the Faculty Hearing Committee, it appears Bishop
chose not to attend the termination hearing, and thereby chose not to present evidence, call
witnesses, or cross-examine witnesses. Bishop does not establish facts to suggest that the
Faculty Hearing Committee precluded him from attending his termination hearing and the
Court will not entertain conclusory, unsupported averments. The Faculty Handbook does not

provide Bishop the right to introduce documentary evidence, call witnesses, or cross-examine
witnesses if he elects not to attend the hearing where such evidence would be provided. As
such, Bishop has not identified any requirement proscribed in the Faculty Handbook that was
violated.
Accordingly, University Defendants’ motion to dismiss is granted and Bishop’s due
process claim is dismissed.
4. Count VII
In Count VII of the complaint, Bishop asserts a defamation claim against the
University and Provost Gingerich. (Doc. 1, ¶¶ 52-56). Bishop contends “Defendant’s
employees implied that [Bishop] was guilty of criminal conduct by failing to disclose his
vaccination status,” and “subjected [Bishop] to ridicule and blackened his character.” (Doc.
1, ¶¶ 55-56).
University Defendants move to dismiss Count VII of the complaint, arguing that

Bishop’s claims fail because “[t]he statements accorded to the University and Provost
Gingerich were made in connection with the proceedings that led to his termination, and are
accordingly preempted.” (Doc. 14, at 32). In addition, University Defendants argue that
Bishop’s claims fail because the alleged statements do not amount to defamation as “they are
statements of opinion based on disclosed facts.” (Doc. 14, at 34). University Defendants
maintain that neither statement implies anything about Bishop engaging in criminal conduct
and, thus, are non-actionable as the basis for a defamation claim. (Doc. 14, at 34-35).
In response, Bishop states he has established that Provost Gingerich’s statement is a
defamatory statement that is capable of defamatory meaning because he “has pled that
Gingerich made the statement in question, that Gingerich made the statement about [Bishop],

that it was intended to be defamatory because it implied that he was guilty of criminal
conduct, that the recipients would understand that it was made regarding [Bishop] and that
[Bishop] was harmed as a result.” (Doc. 25, at 30).
At the onset, in light of the dismissal of Bishop’s constitutional claims, the Court must
determine whether it has subject matter jurisdiction over this claim. Federal courts are courts
of limited jurisdiction, and when there is a question related to the Court’s subject matter
jurisdiction, that question must be resolved as a threshold matter. Zambelli Fireworks Mfg. Co.,
Inc. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010).
In Eash v. Cty. of York, Pennsylvania, the Count noted:
“To state a claim for defamation, a plaintiff must show: (1) the defamatory
character of the communication; (2) its publication by the defendant; (3) its
application to the plaintiff; (4) the understanding by the recipient of its
defamatory meaning; (5) the understanding by the recipient of it as intended to
be applied to the plaintiff; (6) special harm resulting to the plaintiff from its
publication; and (7) abuse of a conditionally privileged occasion.” Byars v. Sch.
Dist. of Philadelphia, 942 F. Supp. 2d 552, 563 (E.D. Pa. 2013) (citing 42 Pa.C.S.
§ 8343(a)). “Whether a communication is capable of defamatory meaning is a
‘threshold issue’ to be determined by the court.” Burton v. Teleflex Inc., 707 F.3d
417, 434 (3d Cir. 2013) (quoting Kurowski v. Burroughs, 994 A.2d 611, 617 (Pa.
Super. Ct. 2010)). “The statement must be examined in context to determine
its likely effect on the reader, and the Court should evaluate the effect it is likely
to produce in the minds of the average persons among whom it is intended to
circulate.” Id. (internal quotation marks and citations omitted).

450 F.Supp.3d 568, 581 (M.D. Pa. 2020).
The Court finds that Bishop’s defamation claims fail to state a claim upon which relief
may be granted. In the complaint, Bishop first alleges the University “criticized [Bishop] and
stated that [Bishop] was acting improperly by refusing to disclose his vaccination status.”
(Doc. 1, ¶ 53). Second, Bishop also alleges Provost Gingerich “stated that [Bishop] was a
danger to the health and safety of the campus both before and after [Bishop]’s termination
hearing.” (Doc. 1, ¶ 54). However, neither allegation identifies how the allegedly defamatory
statements were published, the understanding by any recipients of its defamatory meanings,
the understanding by any recipients of it as intended to be applied to Bishop, any special harm
resulting to Bishop from its publication, or abuse of a conditionally privileged occasion.
The Court finds Bishop’s argument that Provost Gingerich’s statement implied he was
unvaccinated and acting in a manner that was reckless to the campus is unpersuasive. “A
statement is deemed to be defamatory ‘if it tends to blacken a person’s reputation or expose
him to public hatred, contempt, or ridicule, or injure him in his business or profession.’”
Mzamane v. Winfrey, 693 F. Supp. 2d 442, 477 (E.D. Pa. 2010) (quoting Joseph v. Scranton Times
L.P., 959 A.2d 322, 334 (Pa. Superior Ct. 2008)). “Importantly, only statements of fact, rather
than mere expressions of opinion, are actionable under Pennsylvania law.” Mzamane, 693 F.
Supp. 2d at 477 (quoting Moore v. Cobb Nettleton, 889 A.2d 1262, 1267 (Pa. Super. Ct. 2005)).
Bishop’s defamation claims do not adequately state a claim for defamation against the
University and Provost Gingerich. Accordingly, University Defendants’ motion to dismiss

will be granted. (Doc. 13).
B. THE FAC’S MOTION TO DISMISS
The FAC moves to dismiss the complaint for failure to state a claim upon which relief
may be granted. (Doc. 15). The FAC argues Bishop’s complaint does not adequately allege
that the FAC breached its duty of fair representation because Bishop does not address the fact
that the FAC does not, and cannot, represent any faculty member in disciplinary proceedings.
(Doc. 16, at 16). The FAC argues that “the [c]omplaint addresses only the disciplinary
procedure and does not allege that [Bishop] fried a grievance to challenge his discharge after
receiving the University President’s decision on May 10, 2022.” (Doc. 16, at 17). Lastly, the

FAC asserts that Bishop’s statement regarding an alleged conflict of interest fails because
“[w]hen the University suspended [Bishop] pending his disciplinary proceeding, the
University needed to find adjunct faculty to teach the courses previously scheduled for
[Bishop],” and “[a]djuncts are the natural solution to unexpected temporary vacancies.”
(Doc. 16, at 17). In opposition, Bishop contends the allegations in the complaint are sufficient
to establish that the FAC breached its duty of fair representation at this stage in the
proceedings. (Doc. 26, at 12). Bishop states:
FAC’s conduct was arbitrary and in bad faith. There is no rational basis or
explanation to explain why FAC would fail to represent [Bishop] when the
University required [Bishop] to wear a “higher-grade mask” and provide a
negative COVID test result to attend his own termination proceeding when the
rest of the University students and faculty were not required to mask regardless
of vaccination status. Moreover, the University refused to allow [Bishop] to
attend remotely. [Bishop] grieved this issue, along with the others referenced
above, and FAC determined that none of his grievances had merit despite being
violations of the collective bargaining agreement. Moreover, FAC acted in bad
faith in recommending a close friend for [Bishop]’s teaching position rather
than defending him. This act demonstrates hostility toward Plaintiff that clearly
affected the union’s ability to represent Plaintiff fairly.

(Doc. 26, at 12).
As explained above, state law claims requiring the enforcement and interpretation of
collective bargaining agreements must be “brought under [Section] 301 and be resolved by
reference to federal law.” Allis-Chalmers Corp., 471 U.S. at 210-11. Ordinarily, an employee
who brings a claim against an employer for breach of a collective bargaining agreement is first
required to exhaust any grievance or arbitration remedies provided in the collective bargaining
agreement. DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 163 (1983). However, an
employee is not required to exhaust his remedies under the grievance procedures if the union
breaches its duty of fair representation in connection with the grievance process. DelCostello,
462 U.S. at 164.
In Count VIII of the complaint, Bishop asserts a breach of fair representation claim
against the FAC. (Doc. 1, ¶¶ 57-67). Bishop asserts that he is a member of the FAC’s
bargaining unit and, as such, the FAC “has the statutory duty to represent all members of the
employee bargaining unit fairly.” (Doc. 1, ¶¶ 58, 60). However, Bishop alleges that the FAC
violated or breached its duty of fair representation because the FAC “did not fairly and
adequately represent [Bishop] in the termination proceedings against him,” and “its actions
were arbitrary, discriminatory and were in bad faith.” (Doc. 1, ¶¶ 59, 62). For example,
Bishop avers that during the disciplinary action and remote hearing, Bishop requested to be
able to confer privately with a faculty representative, but the FAC opposed his request “even
though the university would have allowed [Bishop] to confer with a faculty representative.”
(Doc. 1, ¶ 65). Further, Bishop contends “[t]he FAC allowed the administration to exclude
[Bishop] from his own dismissal hearing,” and “[a]n officer of the FAC had a gross conflict
of interest because he lobbied to place a close friend in [Bishop]’s teaching position which
jeopardized his ability to properly aid [Bishop].” (Doc. 1, ¶¶ 66-67). As a result of the FAC’s

alleged actions, Bishop claims he was improperly terminated from his position at the
University and suffered monetary damages, as well as damage to his reputation. (Doc. 1, ¶
64).
In order to state a claim for a violation of the duty of fair representation, Bishop must
allege facts which demonstrate that the union’s conduct was arbitrary, discriminatory or in
bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967). “The mere refusal of a union to take a
complaint to arbitration does not establish a breach of duty, even if the member’s claim was
meritorious.” Bangura v. Pa. Soc. Servs. Union–SEIU 668, 2012 WL 6628045, at *3 (E.D. Pa.
Dec. 20, 2012) (quoting Findley v. Jones Motor Freight, 639 F.2d 953, 958 (3d Cir. 1981)).

Instead, “proof of arbitrary or bad faith union conduct in deciding not to proceed with the
grievance is necessary to establish lack of compliance with the fair representation.”
A union’s actions will only be deemed arbitrary if, “in light of the factual and legal
landscape at the time of the union's actions, the union's behavior is so far outside a wide range
of reasonableness as to be irrational.” Bakos v. Am. Airlines, Inc., 748 F. App’x 468, 471-472
(3d Cir. 2018) (quoting Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 67 (1991)). Such a
“ ‘wide range of reasonableness’ gives the union room to make discretionary decisions and
choices, even if those judgments are ultimately wrong.” Marquez v. Screen Actors Guild, Inc.,
525 U.S. 33, 45-46 (quoting Air Line Pilots Ass'n Int'l, 499 U.S. at 67). To show discrimination

on part of the union, “a plaintiff must adduce substantial evidence of discrimination that is
intentional, severe, and unrelated to legitimate union objectives.” Bakos, 748 F. App’x at 472
(quoting Addington v. U.S. Airline Pilots Ass'n, 791 F.3d 967, 984 (9th Cir. 2015) (internal
quotation marks omitted)). To show bad faith on part of the union, a plaintiff must put forth
“a showing of fraudulent, deceitful, or dishonest action.” Bakos, 748 F. App’x at 472 (quoting

White v. White Rose Food, 237 F.3d 174, 179 (2d Cir. 2001)). There are few facts alleged in the
complaint to support a claim of fair representation beyond “bald assertions” or “legal
conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir.1997). “[T]he
mere refusal of a union to take a complaint to arbitration does not establish a breach of duty,
even if the member's claim was meritorious.” Findley, 639 F.2d at 958; see also Seborowski v.
Pittsburgh Press Co., 188 F.3d 163, 169 (3d Cir. 1999). Nor is proof that a union acted
negligently sufficient to support Plaintiff's claim. Findley, 639 F.2d at 959. Bishop must plead
that the FAC’s actions were arbitrary, discriminatory, or undertaken in bad faith. Vaca, 386
U.S. at 190.

Section 2.1 of the Faculty Handbook provides, in relevant part, that “in matters
involving salary, hours of employment, and working conditions—including matters involving
an interpretation of this handbook—the officers of FAC alone have the authority to speak on
behalf of, and subsequently bind, the members of the bargaining unit.” (Doc. 1, at 28).
Appendix IV of the Faculty Handbook provides that the FAC’s role in the disciplinary hearing
is limited: “A FAC officer shall be permitted to attend the proceedings as an observer.” (Doc.
1, at 89) (emphasis added). The charged faulty member is not represented by the FAC. Rather,
the Faculty Handbook states that “[d]uring the hearing, the faculty member will be permitted
to have an advisor from the University and legal counsel of the faculty member’s choosing.

However, the faculty member may have only one advocate who can speak during the
hearing.” (Doc. 1, at 89). Thus, it is clear that the FAC does not have any active role in a
termination or disciplinary hearing.
To the extent Bishop attempts to assert a claim against the FAC for not adequately
representing him in the complaint/grievance/arbitration process, the complaint is devoid of

any facts to establish that Bishop filed a complaint to challenge his termination after receiving
the President’s decision on May 10, 2022. Therefore, the complaint fails to properly allege
that the FAC violated its duty of fair representation. Furthermore, conclusory allegations in
Bishop’s complaint that the FAC demonstrated a conflict of interest when an FAC officer
suggested a close friend to replace Bishop is unavailing. (Doc. 1, ¶ 67). There is no definitive
statement or other evidence regarding whether the FAC did in fact demonstrate a conflict of
interest. Hernandez v. United Steel Workers Ass’n, No. 1:10-CV-1350, 2010 WL 5092979, at *4
(M.D. Pa. Dec. 8, 2010). Because the Faculty Handbook did not provide for representation
by the FAC, the FAC’s failure to represent Bishop in the underlying proceedings cannot be

deemed arbitrary, discriminatory, or in bad faith.
Accordingly, the FAC’s motion to dismiss will be granted. (Doc. 15).
C. LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure
to state a claim, the district court must permit a curative amendment, unless an amendment
would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002). Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave
to amend.’” In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 564 F. App'x 672, 673 (3d
Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). The

Court is mindful the Supreme Court’s mandate that “where the courts are called upon to fulfill
their role as the primary guardians of the duty of fair representation, complaints should be
construed to avoid dismissals and the plaintiff at the very least should be given the opportunity
to file supplemental pleadings unless it appears beyond doubt that he cannot state a good
cause of action.” Hernandez, 2010 WL 5092979, at *5 (quoting Czosek v. O'Mara, 397 U.S. 25,

27, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970)). Therefore, the Court will grant Bishop leave to file
an amended complaint in an attempt to cure the deficiencies outlined herein. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Grayson, 293 F.3d at 108.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss (Doc. 13; Doc. 15) are
GRANTED. Bishop shall have 28 days to file an amended complaint setting forth allegations
in support of this civil action against Defendants and curing the deficiencies outlined herein.
An appropriate Order follows.

BY THE COURT:

Dated: July 17, 2023 s/ Karoline Mehalchick
KAROLINE MEHALCHICK
Chief United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413403. Public record. Not legal advice.