Fraser v. The Pennsylvania State University

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES FRASER, No. 4:22-CV-00726

Plaintiff, (Chief Judge Brann)

v.

THE PENNSYLVANIA STATE

UNIVERSITY, a Pennsylvania

education institution; DR. ROBERT

PAULSON, an individual, in his

official and individual capacities;

DR. MELISSA ROLLS, an individual,

in her official and individual capacities;

DR. ANDREW READ, an individual,

in his official and individual capacities;

and KEYSTONE NANO, INC. a

Pennsylvania business corporation,

Defendants.

MEMORANDUM OPINION

JULY 7, 2023

Six months ago, this Court dismissed Plaintiff James Fraser’s initial

Complaint in which Fraser alleged, among other things, violations of his free

speech and due process rights as well as violations of the Fair Labor Standards Act.

Fraser, a former Ph.D. candidate at The Pennsylvania State University, is now back

with an Amended Complaint. The claims and the Defendants1 are essentially the

1 Penn State and three members of the University’s faculty—Dr. Robert Paulson, Dr. Melissa

Rolls, and Dr. Andrew Read—as well as Keystone Nano, Inc., an independent company

same, but the pleadings have changed substantially. For some claims, Fraser

provides additional factual allegations. For others, Fraser tells an entirely new

story. But, for all his efforts to remedy the deficiencies that defeated his initial

Complaint, Fraser finds himself in the same spot: he has failed to allege a viable

federal cause of action. Accordingly, the Amended Complaint is dismissed—this

time with prejudice.

I. BACKGROUND

A. Fraser’s Doctoral Program and Funding Sources

Fraser began his doctoral studies at Penn State in 2014, pursuing his Ph.D. in

the University’s Molecular, Cellular, and Integrative Biosciences Graduate

Program.2 He completed the required coursework and then passed his qualifying

and comprehensive examinations on December 17, 2015, and November 21, 2016,

respectively, thereby allowing him to begin his doctoral candidacy.3 And to that

end, Dr. Robert Paulson, a Penn State faculty member within the University’s

Department of Veterinary and Biomedical Sciences, served as Fraser’s thesis

advisor.4 In that capacity, Dr. Paulson supervised Fraser’s doctoral studies and

served on his Dissertation Committee—the group of professors responsible for

assessing Fraser’s performance in the program and determining whether his work

2 Doc. 33 (Am. Compl.) ¶¶ 5, 12.

3 Id. ¶ 19.

ultimately merited the Ph.D.5 In addition to Dr. Paulson, Fraser’s Dissertation

Committee included Dr. Andrew Read and Dr. Melissa Rolls, professors within the

Penn State’s Department of Entomology and Department of Biochemistry and

Molecular Biology, respectively.6

During Fraser’s time at Penn State, his costs associated with his doctoral

program were covered by three separate sources of income: a stipend provided by

Penn State, a fellowship through the National Institutes of Health (“NIH”), and a

stipend financed by Dr. Read.7 The funding stream differed each academic year:

Academic Year Funding Type Funding Source Associated Work

2015–168 Stipend Penn State Teaching

Department of Assistant

Biology

2016–179 Fellowship NIH Thesis research,

additional

coursework, and a

workshop

5 Id. ¶¶ 23, 259–60.

6 Id. ¶¶ 8–9, 71, 290.

7 Id. ¶ 24.

8 Id. ¶ 25.

9 Id. ¶ 28. For this fellowship (known as an “NIHT32 grant and fellowship”), NIH provided

funding to Penn State to “enhance the training of academically gifted students who, like

2017–1810 Fellowship NIH Thesis research,

additional

coursework, and a

workshop

2018–1911 Stipend Penn State Teaching

Department of Assistant

Microbiology

2019–2012 Stipend Dr. Read Thesis research

According to Fraser, as a term of both the Penn State stipends and the NIH

fellowship, he was “not permitted [or] expected to perform any tasks outside thesis

work, except by permission and rationale.”13 It is unclear, however, how this

prohibition comports with other requirements of both the funding streams and the

Molecular, Cellular, and Integrative Biosciences Graduate Program through which

Fraser was pursuing his Ph.D. For example, Fraser alleges that “[t]o remain in

good standing with the [NIH] fellowship, students were encouraged to publish

papers, apply for and attend conferences, and seek awards and recognition that

could be used as statistics to renew the Program’s funding in subsequent years.”14

There is no indication that the papers, conferences, or awards were limited to

topics directly related to a fellowship recipient’s thesis.

10 Doc. 33 (Am. Compl.) ¶ 31.

11 Id. ¶ 34.

12 Id. ¶ 37. According to Fraser, this stipend “was covered by Dr. Read from his own money, as

well as grant money Dr. Read and Dr. Paulson received from Mr. Fraser’s work on malaria.”

Id.

13 Doc. 33 (Am. Compl.) ¶ 25; see also id. ¶ 28 (“As per the NIH T32 regulations, students who

were awarded this grant were not allowed to perform any work outside their thesis work for

any reason.”).

Separately, Fraser alleges that he was expected to perform laboratory

research in Dr. Paulson’s lab, conducting experiments supporting Dr. Paulson’s

independent research and assisting other graduate students’ thesis projects.15 Fraser

consistently describes the laboratory work as independent of his doctoral thesis and

“outside the scope” of both his own thesis work as well as his stipend and

fellowship duties.16 That said, Fraser emphasizes that if he did not complete the

laboratory work, “he would not have passed the Program.”17 Fraser offers no

explanation for how the work in Dr. Paulson’s lab was simultaneously “outside the

scope of his education Program” and a Program requirement.

Similarly, Fraser asserts that he was required to assist in work related to

Defendant Keystone Nano, an independent company that allegedly maintains a

commercial relationship with both Penn State and Dr. Paulson.18 Specifically,

Fraser provided laboratory support and research assistance to a Penn State post-

doctoral fellow and a technician who were conducting “Keystone Nano-related

work.”19 Fraser performed this work at Dr. Paulson’s direction, and it persisted

throughout his time in the doctoral program—regardless of Fraser’s funding

15 Id. ¶¶ 26–27, 29–30, 32–33, 35–36.

16 See, e.g., id. ¶ 40 (describing the laboratory work as “outside the scope of his education

Program, stipend duties, and fellowship duties”) (cleaned up).

17 Id.; see also id. ¶¶ 41–42 (same), 347–49 (same), 389–91 (same).

18 Doc. 33 (Am. Compl.) ¶ 27.

19 Id. ¶ 33 (“Mr. Fraser was expected to assist both postdoc, Diwakar Basthili, and technician,

Ian Huffnagle, in all Keystone Nano-related work, including experimental support, mouse care,

data analysis, and more, which required bleeding and weighing mice for Mr. Huffnagle,

stream.20 Indeed, Fraser repeatedly emphasizes that the work for Keystone Nano,

as with his efforts to assist other doctoral candidates’ thesis projects, was “outside

the scope” of his academic studies and the duties associated with his stipend and

fellowship.21 But, again, Fraser describes his work for Keystone Nano as

essentially a Program requirement and prerequisite for successful completion of his

doctorate, stating that “he would not have passed the [P]rogram” if he did not

“complete the work.”22

20 See id. ¶¶ 27 (describing Keystone Nano-related work in 2015–16), 30 (Keystone Nano-related

work in 2016–17), 33 (Keystone Nano-related work in 2017–18), 36 (Keystone Nano-related

work in 2018–19), 38 (Keystone Nano-related work in 2019–20).

21 See, e.g., id. ¶ 41 (“Keystone Nano . . . directed and controlled the manner in which Mr. Fraser

performed the work outside the scope of his education Program, stipend duties, and fellowship

duties.”).

22 Id.; see also id. ¶ 335 (“[D]espite not being an explicit requirement of the Program, Mr. Fraser

working for free (effectively as an indentured servant) was an implicit requirement of obtaining

his Ph.D.”).

To be clear, Fraser alleges that “[t]he work he performed for Penn State and Keystone Nano

was not performed as part of his education Program, stiped, or fellowship because it did not

add to his progress in his Program or thesis.” Id. ¶ 43. But there is no attempt to reconcile those

contradictory pleadings. Fraser alleges cryptically that “Keystone Nano would have exercised

its influence within Penn State through Keystone Nano’s relationships with [his] Program

Committee Members.” Id. ¶ 42.

This hypothetical outcome, however, is simply speculation. According to Fraser, Dr. Paulson

had a business relationship with Keystone Nano, which in turn “commercialize[d] Penn State’s

intellectual property.” Id. ¶¶ 30, 51, 226. But Fraser does not explain the nature of

Dr. Paulson’s purported commercial relationship with Keystone Nano or how, precisely,

Keystone Nano’s “commercializ[ing]” of Penn State’s intellectual property supposedly

rendered the University beholden to the company. Fraser similarly presents no allegations of

Keystone Nano exerting influence over Penn State’s decisions regarding its doctoral

candidates. And, as it relates to Fraser, there is no indication that any member of his

Dissertation Committee outside of Dr. Paulson had any relationship with Keystone Nano

whatsoever.

As best as the Court can tell, although Fraser’s work assisting Dr. Paulson’s research (both his

independent research and whatever work he performed and oversaw related to Keystone Nano)

and his fellow doctoral candidates’ thesis projects was unrelated to his thesis, Fraser was

expected to provide that assistance and his failure to do so could have jeopardized his standing

According to Fraser, Keystone Nano “directed and controlled the manner in

which [he] performed the work” on its behalf, and that it “possessed the power to

hire and fire [him].”23 That said, Fraser does not allege that he entered a formal

contractual relationship with Keystone Nano or that Keystone Nano ever

compensated (or represented that it would compensate) him for his work.24 Fraser

does not identify anyone at Keystone Nano with whom he spoke during his time at

Penn State—either to discuss the overall scope of his work on the company’s

behalf or any day-to-day obligations and expectations.25 And although Fraser

asserts that Keystone Nano “benefited from [his] work” and references the

company’s “communications to Penn State and Dr. Paulson,” the Amended

Complaint is bereft of any details of what Keystone Nano expected of Penn State,

how Fraser’s work related to those purported expectations, and whether anyone at

Keystone Nano was aware that Fraser was performing work for the company.26

23 Doc. 33 (Am. Compl.) ¶ 41.

24 See id. ¶¶ 23–66.

25 Id. At one point, Fraser describes Dr. Paulson as an “owner of Keystone Nano.” Id. ¶ 224. But

in a separate section of the Amended Complaint, he identifies an individual named Mark Kester

as the “owner of Keystone Nano,” and seemingly suggests that Dr. Paulson’s sole employer

was Penn State. Id. ¶ 30; see also id. ¶¶ 335 (discussing his “services requested by Dr. Paulson

in support of Dr. Kester and his company, Keystone Nano”), 340 (“Penn State, via the actions

of Dr. Paulson, its employee, and Keystone Nano, via the actions of Dr. Kester, its employee,

willfully failed to pay Mr. Fraser.”). It is therefore unclear from the Amended Complaint what

relationship (if any) Dr. Paulson had with Keystone Nano. There is no indication that

Dr. Paulson had the authority to hire, fire, or direct the work of Keystone Nano employees.

B. Fraser’s Complaints About the Misuse of Public Funds

According to Fraser, he considered the “additional duties” Dr. Paulson

assigned him—in particular, the work Fraser performed for Keystone Nano—

deeply troubling.27 Fraser describes the Keystone Nano-related work as “a

diversion of Penn State’s taxpayer resources [and] his federal taxpayer fellowship

monies to the personal benefit of Penn State, Dr. Paulson, and Keystone Nano.”28

Compelled by a sense of “civic obligation,” Fraser decided to “take action”—“not

for himself, but on behalf of the public and for the public’s benefit.”29

Consequently, in 2017, Fraser reported his concerns to Dr. Rolls and Dr.

Read.30 Fraser explains that “because it was matter of public concern,” he thought

it best to first raise the issue “in a discreet manner within the [Penn State Biology

Department].”31 Neither Dr. Rolls nor Dr. Read, however, were willing to act on

Fraser’s complaints; both were purportedly concerned about possible “political

reprisal” by Dr. Paulson, who was “extremely influential” in the Department.32

27 Id. ¶ 68.

28 Id.

29 Id. ¶ 69. The Court notes that this description of his concerns stands in stark contrast with how

Fraser characterized the matter in his initial Complaint. There, Fraser alleged that his

frustrations stemmed from the fact that he was “not paid” or “given academic credit” for the

additional work. Doc. 1 (Compl.) ¶ 25. Fraser framed the matter as “an impermissible conflict

of interest between his advisor and the University,” emphasizing the “diversion of Penn State

resources and his own labor to Dr. Paulson’s personal benefit.” Id. ¶ 27. As such, Fraser

alleged, he “felt he had a moral obligation to . . . bring his concerns to the attention of

Penn State.” ¶ 28.

30 Doc. 33 (Am. Compl.) ¶ 71.

31 Id. ¶ 70.

The matter, then, was seemingly dropped. For two years, Fraser continued in

his doctoral program, progressing with his thesis while also performing work on

behalf of Keystone Nano, without making any additional reports of purported

misconduct.33

But in April 2019, Dr. Rolls and Dr. Read met with Fraser and “informed

[him] that he had two options as to how to proceed in the wake of his reports of

public funds, facilities, and resources being misused” (i.e., his complaints from two

years prior): (1) “give up all his work completed to that point and start his thesis

over, presuming he could find a different advisor willing to take him”; or (2) “file

official complaints with the appropriate officials at Penn State.”34 Fraser “opted for

the second option and filed official reports of his public concerns with the

appropriate Penn State officials.”35 Fraser does not state when, exactly, he filed

those “official reports,” or what, precisely, he said in those reports. And he

likewise does not identify the “appropriate Penn State officials” to whom he sent

the complaints.36

C. Retaliatory Conduct

After receiving Fraser’s complaints, Penn State opened an investigation into

Dr. Paulson, though little came of it: the University “declined to make any findings

33 See id. ¶¶ 33–36, 73.

34 Id. ¶¶ 73–74.

35 Id. ¶ 75.

or take any action against Dr. Paulson.”37 That said, Dr. Paulson purportedly did

not take kindly to Fraser’s complaints. According to Fraser, “Dr. Paulson began

engaging in increasingly severe retaliatory conduct to keep [Fraser] quiet about the

Dr. Paulson-Keystone Nano-Penn State relationship and misuse of public funds,

resources, and facilities.”38

First, on May 30, 2019, Dr. Paulson informed Fraser in writing that he

would withhold Fraser’s stipend unless he “agreed to follow Dr. Paulson’s every

direction regardless of whether [he] believed it presented a conflict of interest with

Penn State or a violation of his contract with the University.”39 According to

Fraser, the letter had a chilling effect: “Fraser was scared to report the further

uncompensated work that was outside the scope of his Program that was to the

detriment of public funds.”40

Separately, Dr. Paulson spread false accusations that Fraser failed to credit

him on a conference presentation and also repeatedly locked Fraser out of the lab,

preventing him from “work[ing] on experiments for his doctoral research.”41 Fraser

does not, however, allege when either of those purportedly retaliatory actions

occurred. Aside from a single paragraph noting that Dr. Paulson “spread

accusations” that were “patently untrue,” the Amended Complaint is silent as to

37 Id. ¶ 76.

38 Id. ¶ 78.

39 Id. ¶ 79.

40 Id. ¶ 81.

this alleged retaliatory action.42 And regarding his access to the lab, the only other

pleadings in the Amended Complaint on the subject concern “an extensive Title IX

investigation” into a purportedly “baseless complaint from a fellow student”;

although Fraser was “cleared of all accusations of Title IX violations,” he “was

barred from being in the lab at the same time as the accusing student and

consequently was forced to alter his own research work and schedule to

accommodate the complainant, imposing what amounted to a de facto restraining

order.”43 It is unclear how, if at all, the allegations relate to one another.

Further, Fraser asserts that other members of the Penn State community

participated in the retaliation as well. In particular, Fraser highlights Dr. Rolls, who

in the fall semester of 2019 “demanded that [Fraser] turn over confidential data

regarding his research.”44 Fraser offers no explanation for how that demand relates

to his complaints about Dr. Paulson and Keystone Nano; instead, he simply notes

that Dr. Rolls had no “legal or contractual authority” to make such demands.45

D. Fraser’s Failed Thesis Defenses

Fraser was first scheduled to defend his thesis in December 2019.46 Leading

up to his defense, Fraser met with members of his Dissertation Committee

(presumably Dr. Rolls and Dr. Read), who gave Fraser instruction on what work he

42 Id. ¶ 82.

43 Id. ¶ 88–90.

44 Id. ¶ 86.

45 Id.

needed to perform “to successfully defend his thesis and be awarded his Ph.D.”47

And the week before his defense, Dr. Paulson and Dr. Rolls provided further

feedback on Fraser’s thesis—“last minute concerns,” in Fraser’s telling.48 Unhappy

with the “polish” of the thesis document—a criticism Fraser’s characterizes as

“seemingly arbitrary”—the Dissertation Committee postponed Fraser’s defense

until the first week of January 2020, giving Fraser a few extra weeks over the

University’s winter break to “write a new version of his thesis document.”49

After Fraser revised his thesis, Dr. Paulson and Dr. Rolls remained

unsatisfied with Fraser’s work, but Dr. Read “stepped in and authorized the

defense to proceed.”50 The result, however, was not in Fraser’s favor. Dr. Paulson

and Dr. Rolls “spent much of the presentation bombarding [Fraser] with disruptive

questions” on topics Fraser considered “largely irrelevant” to his thesis.51

Ultimately, the Dissertation Committee “failed” Fraser, citing the purportedly

“irrelevant” concerns raised during the defense.52

47 Id. ¶ 109.

48 Id. ¶ 114.

49 Id. ¶¶ 115, 118–19.

50 Id. ¶¶ 121–22.

51 Id. ¶¶ 126–27.

52 Id. ¶ 128; see also id. ¶¶ 138–39 (discussing a letter Fraser received on January 9, 2020,

“discussing the outcome of his failed January oral defense,” which “ostensibly cited the failure

of [Fraser] to field the largely irrelevant questions regarding the lifecycle of the parasite

Following Fraser’s failed first defense, Penn State gave him the opportunity

to revise his thesis and defend it a second time.53 To that end, the University sent

Fraser a letter detailing the issues he needed to address.54 And throughout the

spring semester of 2020, Fraser’s Dissertation Committee provided feedback on

additional revisions he needed to make to ensure a successful defense.55 Notably,

in the weeks before Fraser was set to defend his thesis a second time, the

Dissertation Committee “began making increasingly onerous demands regarding

access to [Fraser’s] supporting data,” with Dr. Paulson directing Fraser to “draft

and upload detailed explanations of each of the myriad experiments supporting his

thesis.”56 For his part, Fraser considered the requests “unnecessary”—a “bad faith

stalling tactic” rather than a “legitimate academic concern or inquiry.”57

Despite the extended back-and-forth with his Dissertation Committee, Fraser

asserts that he went “into his oral defense with almost no guidance regarding what

was expected of him.”58 And after the defense, Fraser “receive[d] word from the

[Dissertation Committee] that they had failed him a second time.”59 The

Dissertation Committee provided Fraser with a memo detailing their “reasoning for

53 Doc. 33 (Am. Compl.) ¶ 138–85. According to Fraser, Dr. Paulson and Dr. Rolls opposed the

decision to grant Fraser a second defense; they instead petitioned for Fraser’s expulsion.

See id. ¶ 151.

54 See Doc. 33 (Am. Compl.) ¶¶ 138–41.

55 See id. ¶¶ 152–57.

56 Id. ¶¶ 158–59.

57 Id. ¶ 162.

58 Id. ¶¶ 164–65, 176 (describing the “onerous demands” that “no other graduate student at

Penn State had been expected to [do]”).

failing him,” which centered on the fact that “throughout the oral defense, [Fraser]

made conclusions that extended far beyond the data presented”—reasoning Fraser

contests, as “none of [those] criticisms were provided to [him] prior to his second

oral defense, despite his conclusions being expressly stated in his thesis

document.”60

E. Appeal Process

After Fraser failed his thesis defense a second time, the Dissertation

Committee informed Fraser that he “would be ejected from the Program without

the Ph.D.”61 Fraser responded by appealing the decision.62 Fraser’s appeal was first

heard by an “Appeal Committee” comprised of certain Penn State faculty

members—including the professors on his Dissertation Committee.63 Fraser met

with the Appeal Committee on January 20, 2021, and five days later, the Appeal

Committee issued its decision denying Fraser’s appeal and affirming the

Dissertation Committee’s prior determination.64

In a written letter announcing its decision, the Appeal Committee explained

why it denied Fraser’s appeal, noting that the appeal “did not address the primary

cause for his failure during the oral defense” and that Fraser “was unwilling to take

feedback from the [Dissertation Committee] and incorporate it adequately into his

60 Id. ¶¶ 197–99.

61 Id. ¶ 192.

62 Id. ¶ 200.

63 Id. ¶ 202.

dissertation.”65 Fraser considers those explanations “ex post facto justifications

when in reality the decision was motivated by the [Appeal Committee members’]

personal animus” towards him.66

Fraser then appealed the decision of the Appeal Committee, this time to the

Dean of the Graduate School, Dr. Regina Vasilatos-Younken.67 Shortly thereafter,

the Dean issued a decision affirming the Appeal Committee “without substantial

comment.”68

F. Procedural History

In May 2022, Fraser initiated the instant action with a sixteen-count

Complaint, naming Penn State, Dr. Paulson, Dr. Rolls, Dr. Read, Keystone Nano,

and Dr. Mark Kester (the owner of Keystone Nano) as defendants.69 The

Complaint raised constitutional claims (alleging violations of the First Amendment

free speech rights and Fourteenth Amendment rights concerning substantive and

procedural due process), three counts asserting violations of the Fair Labor

65 Id. ¶¶ 213, 215.

66 Id. ¶ 212.

67 Id. ¶ 218.

68 Id. ¶ 219. Although Fraser makes no factual allegations about Dr. Vasilatos-Younken, he

asserts, based on “information and belief,” that she “was not an impartial decision maker”

because she “had a self-interest to ensure the Program that is part of her Graduate School did

not have a scandal involving a Committee member of a Program using public funds to advance

personal interests”—a fact that “would tarnish [her] image and reputation.” Id. ¶ 220. There is

no indication, however, that Dr. Vasilatos-Younken was even aware of the complaints Fraser

filed against Dr. Paulson in early 2019—approximately two years before

Dr. Vasilatos-Younken affirmed Fraser’s dismissal from his doctoral program.

Standards Act (“FLSA”), and various state law claims.70 The Defendants moved to

dismiss the Complaint in full,71 and the Court granted those motions, holding that

Fraser failed to allege violations of either the Constitution or the FLSA, and then

declined to exert supplemental jurisdiction over the state law claims.72

That dismissal, however, was without prejudice.73 Accordingly, Fraser filed

his Amended Complaint on February 21, 2023.74 Although the Amended

Complaint contains many new allegations—indeed, it is nearly twice the length of

the original—the claims and Defendants are substantially the same.75

The Defendants now move to dismiss the Amended Complaint.76 Those

motions have been fully briefed and are now ripe for disposition.77

70 Id.

71 See Doc. 12 (Penn State Mot. to Dismiss Initial Compl.); Doc. 26 (Keystone Nano Mot. to

Dismiss Initial Compl.). Please note: the motions to dismiss filed by Penn State were jointly

filed with the University faculty members named as defendants—Dr. Paulson, Dr. Rolls, and

Dr. Read. For the sake of simplicity, however, throughout this Memorandum Opinion, the

Court refers to those motions as Penn State’s.

72 Doc. 31 (Mem. Op.); Doc. 32 (Order).

73 Id.

74 Doc. 33 (Am. Compl.).

75 Fraser removed Dr. Kester as a defendant, consolidated his three FLSA claims into a single

count, and removed certain state law claims. Compare Doc. 1 (Compl.), with Doc. 33

(Am. Compl.).

76 Doc. 34 (Keystone Nano Mot. to Dismiss Am. Compl.); Doc. 35 (Penn State Mot. to Dismiss

Am. Compl.).

77 Keystone Nano Motion to Dismiss: Doc. 40 (Keystone Nano Br.); Doc. 41 (Fraser Opp. to

Keystone Nano Mot. to Dismiss); Doc. 48 (Keystone Nano Reply). Penn State Motion to

Dismiss: Doc. 42 (Penn State Br.); Doc. 49 (Fraser Opp. to Penn State Mot. to Dismiss);

II. LAW

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff fails to “state a claim upon which

relief can be granted.” Following Bell Atlantic Corp. v. Twombly78 and Ashcroft v.

Iqbal,79 “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’”80 In deciding a motion to dismiss, courts within the United States Court of

Appeals for the Third Circuit must follow three steps: (1) take note of the elements

the plaintiff must plead to state a claim; (2) identify allegations that, because they

are no more than conclusions, are not entitled to the assumption of truth; and (3)

assume the veracity of all well-pleaded factual allegations and determine whether

they plausibly give rise to an entitlement to relief.81

III. ANALYSIS

As with the claims in Fraser’s original Complaint, the claims the Amended

Complaint fall into three categories: (a) violations of rights secured by the United

States Constitution; (b) violations of the FLSA; and (c) violations of Pennsylvania

state law. And, again, the Court starts with the first two categories—that is, the

federal causes of action. For the reasons detailed below, the Court finds that

78 550 U.S. 544 (2007).

79 556 U.S. 662 (2009).

80 Id. at 678 (quoting Twombly, 550 U.S. at 570).

81 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

although the Amended Complaint addresses some of the deficiencies that

necessitated dismissal of the federal claims in the initial Complaint, the bulk of this

Court’s concerns remain. Accordingly, the Amended Complaint, like its

predecessor, fails to state a viable federal cause of action. The constitutional and

FLSA claims in the Amended Complaint are therefore dismissed, which again

obviates any need to address Fraser’s state law claims.

A. Constitutional Claims

In its motion to dismiss Fraser’s constitutional claims, Penn State presents

three arguments. First, Penn State contests the claims on substantive grounds,

asserting that the Amended Complaint—like the Complaint before it—lacks the

factual allegations necessary to sustain the constitutional claims presented. Second,

Penn State argues that the constitutional claims against the University faculty

members (i.e., Dr. Paulson, Dr. Rolls, and Dr. Read) should be dismissed because

the professors are qualifiedly immune. And third, Penn State asserts that Fraser

fails to establish Monell liability as to the University. The Court addresses each

argument in turn.

1. Substantive Arguments

Over four counts, Fraser alleges that Penn State and the members of his

Dissertation Committee violated three separate constitutional rights: (a) First

Amendment right to freedom of speech; (b) Fourteenth Amendment right to

substantive due process; and (c) Fourteenth Amendment right to procedural due

process. But as with the prior iterations of these claims, Fraser fails on all three

fronts.

a. First Amendment

Penn State first moves to dismiss Count I, Fraser’s claim that the University

and Dr. Paulson violated his First Amendment rights by retaliating against him for

filing complaints against Dr. Paulson for allegedly “misusing public funds,

resources, and facilities.”82 To establish a Section 1983 First Amendment

retaliation claim, a plaintiff must show that he participated in activity protected by

the First Amendment and that the defendant retaliated against him in a manner that

would be sufficient to deter a person of ordinary firmness from exercising his

constitutional rights.83 But Fraser has again failed to allege a viable First

Amendment claim. Although the Amended Complaint successfully reframes the

speech at issue to bring it within the ambit of the First Amendment, the factual

issues concerning causation and retaliation remain.

i. Protected Speech

In assessing whether the First Amendment protects a public employee’s

speech, the Court must first “determine whether the employee is speaking upon

matters of public concern.”84 If the employee’s speech relates only to his “personal

82 Doc. 33 (Am. Compl.) ¶ 77.

83 See Thomas v. Independence Township, 463 F.3d 285, 296 (3d Cir. 2006).

84 Borden v. School District of the Township of East Brunswick, 523 F.3d 153, 168 (3d Cir. 2008)

interest,” it is not protected by the First Amendment.85 The Supreme Court of the

United States instructs that “[w]hether an employee’s speech addresses a matter of

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

statement, as revealed by the whole record.”86 To qualify as “speech on a matter of

public concern,” the content must “generally address[] a social or political concern

of the community.”87 And even if the content concerns “something that may

impact the public,” the speech may nevertheless fall outside the parameters of the

First Amendment based on the “manner and context in which that statement was

made.”88 When the “overall thrust” of a statement concerns a purely “private

grievance[],” the inclusion of “collateral” comments that “touch[] upon a matter of

public concern” does not “tip the First Amendment balance.”89

In the initial Complaint, Fraser alleged that shortly after he started working

in Dr. Paulson’s lab at Penn State, “Dr. Paulson began tasking [him] with

additional responsibilities that were beyond the scope of his fellowships and thesis

85 Id. (explaining that “government officials should enjoy wide latitude in managing their offices,

without intrusive oversight by the judiciary in the name of the First Amendment”) (quoting

Connick, 461 U.S. at 146).

86 Connick, 461 U.S. at 147–48.

87 Borden, 523 F.3d at 170.

88 Miller v. Clinton County, 544 F.3d 542, 550 (3d Cir. 2008).

89 Id. at 550–51; see also Gorum v. Sessoms, 561 F.3d 179, 187 (3d Cir. 2009) (holding that a

university professor’s “speech” during the disciplinary hearing for a particular student “did not

involve a matter of public concern” because it simply “related to the personal grievance of one

student” and, even “assuming that [the professor] raised matters of public concern in assisting

[the student],” the context of the statements at issue obviate any First Amendment protection:

the speech at issue occurred during the student’s disciplinary hearing; “[t]here was no evidence

duties.”90 Fraser noted that he was “not paid” or “given academic credit” for the

additional work.91 According to Fraser, he was “concerned that [the additional

duties] represented an impermissible conflict of interest between his advisor and

the University,” as they “constituted a diversion of Penn State resources and his

own labor to Dr. Paulson’s personal benefit,” and, as such, he “felt he had a moral

obligation to bring his concerns to the attention of Penn State.”92

In the February 2023 Memorandum Opinion, this Court found that Fraser

failed to plead facts demonstrating that his speech was protected by the First

Amendment, explaining that Fraser’s allegations were “limited to his own one-on-

one relationship with his thesis advisor”; his speech did not “relate to a broad

social or policy issue at [Penn State]” or constitute a “breach[] [of] the public trust

in a manner that would meaningfully affect the greater [Penn State] community.”93

Following that ruling, Fraser filed his Amended Complaint in which he

recasts the nature of his concerns and complaints about Dr. Paulson. Fraser now

asserts that his concern about the “additional duties” related to the purported

“diversion of Penn State’s taxpayer resources, his federal taxpayer fellowship

monies to the personal benefit of Penn State, Dr. Paulson, and Keystone Nano.”94

The issue is no longer a possible conflict of interest between Dr. Paulson and Penn

90 Doc. 1 (Compl.) ¶ 23.

91 Id. ¶ 25.

92 Id. ¶¶ 27–28.

93 Doc. 31 (Mem. Op.) at 14–15 (citation and internal quotation marks and brackets omitted).

State, with Dr. Paulson benefiting from the uncompensated work of Penn State

graduate students to the detriment of both Penn State and the students; instead,

Fraser characterizes the alleged impropriety as a conspiracy between Dr. Paulson,

Keystone Nano, and Penn State, with all three—including Penn State—benefiting

at the taxpayer’s expense.95 Gone is the “moral obligation” Fraser felt to protect

the University, himself, and his fellow graduate students, replaced with the “civic

obligation” to take action, “not for himself, but on behalf of the public and for the

public’s benefit.”96

The Court finds it difficult to reconcile these seemingly contradictory

pleadings.97 At this stage, however, that is of no moment: because an “amended

95 Compare Doc. 1 (Compl.) ¶ 27 (“Mr. Fraser further believed these additional duties constituted

a diversion of Penn State resources and his own labor to Dr. Paulson’s personal benefit and

was concerned that they represented an impermissible conflict of interest between his advisor

and the University.”), with Doc. 33 (Am. Compl.) ¶ 64 (“Mr. Fraser further believed that these

additional duties constituted a diversion of Penn State’s taxpayer resources, his federal

taxpayer fellowship monies to the personal benefit of Penn State, Dr. Paulson, and

Keystone Nano.”).

96 Doc. 33 (Am. Compl.) ¶ 69.

97 Although there are, at present, no legal consequences associated with Fraser’s newfangled

description of his complaints, the Court finds the operative pleadings highly suspect. As

Penn State notes, Fraser’s recast explanation for his grievances with Dr. Paulson do not

necessarily accord with the remainder of the allegations in the Amended Complaint.

See Doc. 42 (Penn State Br.) at 13–14.

For example, when describing his “turbulent prior relationship” with Dr. Paulson, Doc. 33

(Am. Compl.) at 7 (capitalization from heading removed), Fraser expresses his frustration not

only with the work he allegedly performed for Keystone Nano that was outside the scope of

his “education Program, stipend duties, and fellowship duties,” but also with the work he did

“to assist in other students’ thesis projects in Dr. Paulson’s lab” for which he “was given no

credit”—work that seemingly had no relation to Keystone Nano. Id. ¶¶ 26–27, 30, 33 46, 55.

Moreover, Fraser’s complaints about “the work [he] performed for Penn State and

Keystone Nano’s benefit” center on how that work “detracted . . . from and interfered with

[his] education Program and thesis”—not the alleged “diversion of Penn State’s taxpayer

resources” that fueled his sense of “civic obligation.” Id. ¶¶ 43, 68–69, 350, 392. When Fraser

complaint supersedes the original and renders it of no legal effect,” all this Court

has before it are the allegations in the Amended Complaint. 98 And based on those

allegations, the Court is compelled to conclude that the speech at issue—the

“official reports” Fraser filed “with the appropriate offices at Penn State”

concerning Dr. Paulson’s misuse of federal and state taxpayer resources, facilities,

and student’s research for the benefit of Dr. Paulson and Keystone Nano”99—

pertained to “matters of public concern.”100

ii. Retaliatory Acts

Once a plaintiff establishes that he was speaking out on a matter of public

concern, he “must then show that the protected activated was a substantial or

motivating factor in the alleged retaliatory action,”101 and that “the alleged

his concerns to the attention of Penn State,” he did so “in a discreet manner within the

Department” by reporting the issue to Dr. Rolls and Dr. Read—he declined to issue a public

statement about his concerns “because,” he says, “it was a matter of public concern.” Id. ¶¶

69–70. And after Dr. Rolls and Dr. Read “indicated they were unwilling or unable to take

appropriate action” on Fraser’s reports of “taxpayer monies being misused,” Fraser took no

further steps to report the issue for two years. Id. ¶¶ 72–73. And when Fraser finally elected to

file a formal complaint with Penn State, he did so simply to avoid “start[ing] his thesis over”

with a new advisor. Id. ¶ 74.

Those allegations strongly suggest that Fraser’s initial account of events more accurately

reflects reality. That is troubling not simply because honesty and forthrightness are virtues

upon which the American legal system relies, but because the competing accounts of Fraser’s

actions would receive different legal treatment per the Third Circuit’s precedents. See, e.g.,

Gorum, 561 F.3d at 187.

98 West Run Student Housing Associates, LLC v. Huntington National Bank, 712 F.3d 165, 171

(3d Cir. 2013) (internal quotation marks and citation omitted).

99 Doc. 33 (Am. Compl.) ¶¶ 71–75.

100 Borden, 523 F.3d at 168; see also Lane v. Franks, 573 U.S. 228, 241 (2014) (“The content of

[the plaintiff’s] testimony—corruption in a public program and misuse of state funds—

obviously involves a matter of significant public concern.”).

retaliatory conduct was sufficient to deter a person of ordinary firmness from

exercising his First Amendment rights.”102 Relevant here, when a plaintiff alleges

“a campaign in retaliatory harassment,” the Court must consider the cumulative

effect of the alleged retaliatory conduct: “an entire campaign of harassment which

though trivial in detail may have been substantial in gross.”103 That said, before

accepting a plaintiff’s call to aggregate discrete acts of alleged retaliation, the

Court must determine whether each act was, in fact, causally connected to the

plaintiff’s protected speech.104

Here, Fraser predicates his Section 1983 First Amendment retaliation claim

on the following allegedly retaliatory acts:

 Dr. Paulson informed Fraser in writing “that he intended to withhold

[Fraser’s] stipend unless he agreed to follow Dr. Paulson’s every

direction,” effectively forcing Fraser “to engage in yet further

uncompensated work outside of the Program and for the benefit of the

Penn State-Keystone Nano-Dr. Paulson commercial relationship.”105

 Dr. Paulson “spread accusations amongst the Department that [Fraser]

had failed to credit him on a conference presentation when this

accusation was patently untrue.”106

 Dr. Paulson “locked [Fraser] out of the lab” on several occasions,

“thereby denying him access to Departmental resources that are part

102 McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal quotation marks and citation

omitted).

103 Suppan v. Dadonna, 203 F.3d 228, 234–35 (3d Cir. 2000) (internal quotation marks and

citation omitted).

104 See Brennan, 350 F.3d at 419–24 (individually “examin[ing] the allegations of retaliatory

conduct by each of the defendants” to determine whether “the alleged retaliatory conduct was

the result of [the plaintiff’s] protected speech”).

105 Doc. 33 (Am. Compl.) ¶ 79.

of the Program, such as the copier/scanner, and precious time to

continue work on experiments for his doctoral research.”107

 Dr. Rolls “demanded that [Fraser] turn over confidential data

regarding his research.”108

 Dr. Paulson and Dr. Rolls, one week before the schedule date of

Fraser’s thesis defense, “rais[ed] last minute concerns regarding

[Fraser’s] thesis document.”109

 The Dissertation Committee “cancelled” Fraser’s first thesis defense

“just two days before the scheduled [date],” instructing him “to go

home to Boston over winter break, write a new version of his thesis

document, and defend it in the first week of January before the official

start to the spring 2020 semester.”110

 Dr. Paulson and Dr. Rolls “resumed claiming [Fraser’s] thesis

document was insufficiently ‘polished’ to proceed to defense.”111

 The Dissertation Committee gave Fraser two opportunities to defend

his thesis—in January and July of 2020, respectively—and “failed”

Fraser both times, resulting in Fraser’s dismissal from the Program.112

These alleged actions of retaliation, however, lack either an articulated factual

nexus to Fraser’s protected speech or the requisite temporal proximity to establish

causation.

For Dr. Paulson’s May 2019 “threat” to withhold Fraser’s stipend, the

allegations do not demonstrate a retaliatory purpose. According to Fraser, the

laboratory work was unrelated to his thesis, which he performed “on behalf of

107 Id. ¶ 84.

108 Id. ¶ 86.

109 Id. ¶ 114.

110 Id. ¶¶ 118–19.

111 Id. ¶ 121.

Penn State and Keystone Nano” at Dr. Paulson’s direction, was “an implicit

requirement of obtaining his Ph.D.”113 But in 2019, Fraser “started to push back

and stopped agreeing to assist” on those additional assignments.114 The alleged

threat from Dr. Paulson, as Fraser frames it, concerned Fraser’s continued work on

the additional assignments—not Fraser’s official reports to the appropriate Penn

State officials.115 Simply demanding that a doctoral candidate continue with the

tasks he was always expected to perform does not constitute retaliation.

For the allegation that Dr. Paulson spread false accusations about Fraser

failing to credit him on a conference presentation, Fraser provides no information

on when Dr. Paulson purportedly made this false accusation. That is significant, as

an inference of retaliatory animus premised on temporal proximity is highly fact-

dependent—the plaintiff must show that the protected speech and alleged

retaliation were, in fact, sufficiently close in time.116 Moreover, even if Fraser had

alleged a sufficient temporal proximity between his protected speech and Dr.

Paulson’s false accusations, it would be of no consequence. As the Third Circuit

instructs, courts typically “decline[] to find that an employer’s actions have

adversely affected an employee’s exercise of his First Amendment rights where the

113 Id. ¶ 224.

114 Id. ¶ 39.

115 Id. ¶ 79.

116 See, e.g., Brennan, 350 F.3d at 420, 423–24 (“Although the nine-month gap here between

expression and alleged retaliation is not, by itself, sufficient to preclude an inference of

causation, . . . [a] twenty-one-month time lapse between [the] protected activities and [the false

employer’s alleged retaliatory acts were criticism, false accusations, or verbal

reprimands.”117

Fraser’s arguments about Dr. Paulson locking him out of the lab and Dr.

Rolls demanding that he turn over confidential data suffer from many of the same

defects as the prior two alleged retaliatory actions. Fraser does not allege when

either action supposedly occurred, making it impossible for this Court to draw any

inference based on temporal proximity.118 And the allegations Fraser does make

provide no other basis for a causal nexus with Fraser’s protected speech. For the

restrictions on accessing the lab, the only factual allegations potentially related to

this topic signal that “Fraser was barred from being in the lab at the same time as [a

fellow student who accused him of Title IX accusations].”119 For the confidential

data, Fraser says only that Dr. Rolls demanded the data “despite having no legal or

contractual authority to do so”; that pleading says nothing about why Dr. Rolls

supposedly wanted the data or how that demand pertained to Fraser’s complaints

against Dr. Paulson.120

The only other alleged retaliatory actions concern Fraser’s attempts to

defend his thesis.121 The earliest of those actions occurred in November 2019—

117 McKee, 436 F.3d at 170.

118 See Doc. 33 (Am. Compl.) ¶¶ 84, 86.

119 Doc. 33 (Am. Compl.) ¶ 90.

120 Id. ¶ 86.

seven months after Fraser filed the “official reports” against Dr. Paulson.122

Although that gap in time “is not, by itself, sufficient to preclude an inference of

causation,” it also does not suggest a causal link.123

Moreover, there is nothing other than Fraser’s claim of causation to connect

his complaints about Dr. Paulson and his failed attempts to defend his thesis.124

Fraser details the Doctoral Committee’s proffered bases for its decision to fail him

and then explains why he disagrees.125 But simply disagreeing with the Doctoral

Committee’s criticisms of his thesis and defense is not evidence of retaliatory

malice.

Further, as Fraser explains, he was provided the opportunity to contest the

Doctoral Committee’s decision. That decision was ratified first by an Appeal

Committee (which, to be fair, included members of his Dissertation Committee)

and then again by the Dean of the Graduate School.126 Far from validating Fraser’s

allegations of retaliation, the affirmance on appeal (particularly the decision by the

Graduate School Dean, a Penn State administrator who had no involvement in

Fraser’s two attempts to defend his thesis) suggests that the Doctoral Committee’s

decisions were well founded. Even when considering those facts in the light most

122 See id. ¶¶ 71–75, 114.

123 Brennan, 350 F.3d at 420.

124 See id. (“Although the nine-month gap here between expression and alleged retaliation is not,

by itself, sufficient to preclude an inference of causation, there is nothing other than [the

plaintiff’s] claim of causation to connect the two.”).

125 See Doc. 33 (Am. Compl.) ¶¶ 125–130, 197–99.

favorable to Fraser (as this Court must at this stage of the proceedings), the Court

finds no basis for concluding that Fraser’s dismissal from the doctoral program

constituted unlawful retaliation.

Lacking an inference based on temporal proximity or any factual allegations

directly indicating a retaliatory motive, Fraser has not alleged a causal nexus

between his protected speech and the actions at issue. Accordingly, the Court finds

that Fraser again fails to present a viable Section 1983 First Amendment retaliation

claim. Count I is dismissed.127

b. Substantive Due Process

In Count II, Fraser alleges that Penn State as well as the members of his

Dissertation Committee (i.e., Dr. Paulson, Dr. Rolls, and Dr. Read) violated his

constitutionally protected substantive due process rights when they dismissed him

from the doctoral program.128 But to sustain a Section 1983 substantive due

process claim, a plaintiff must establish (1) he has a protected property interest to

which the Fourteenth Amendment’s substantive due process protection applies,129

127 The Court premised its initial dismissal of Fraser’s First Amendment claim on Fraser’s

“inability to demonstrate the protected nature of his speech.” Doc. 31 (Mem. Op.) at 15 n.75.

That said, the Court explicated its concerns about causation as well, explaining that Fraser

“cannot show that his complaint about [Dr. Paulson] was a substantial factor behind the

University and the Professors’ decision to dismiss him from the Program,” and that the Court

finds Penn State’s “argument regarding temporal proximity persuasive.” Id. Fraser was

therefore on notice that the allegations in the initial Complaint were insufficient to establish

causation. The Court gave Fraser the opportunity to remedy those deficiencies, but he failed to

do so. Accordingly, the Court finds that further amendment of this claim would be futile. It is

therefore dismissed with prejudice.

128 See Doc. 33 (Am. Compl.) ¶¶ 248–65.

and (2) a state actor deprived him of that property interest “through an arbitrary

and deliberate abuse of authority.”130 Fraser has established neither.

First, the Third Circuit explains that “when a plaintiff challenges a non-

legislative state action (such as an adverse employment decision), [courts] must

look, as a threshold matter, to whether the property interest being deprived is

‘fundamental’ under the Constitution.”131 If the interest is not “fundamental,” the

governmental action “is entirely outside the ambit of substantive due process and

will be upheld so long as the state satisfies the requirements of procedural due

process.”132

In accordance with the Supreme Court’s admonition that courts should

exercise “utmost care whenever asked to break new ground in this field,”133 the

Third Circuit has “been reluctant to extend substantive due process protection to

other, less fundamental property interests.”134 Accordingly, the Third Circuit “has

strongly suggested that the right to continued graduate education is not protected

by substantive due process.”135

130 Elansari v. United States, 823 F. App’x 107, 112 (3d Cir. 2020) (citing

Independent Enterprises Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165,

1179–80 (3d Cir. 1997)).

131 Nicholas, 227 F.3d at 142.

132 Id.

133 Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

134 Nicholas, 227 F.3d at 141.

135 Manning v. Temple University, 157 F. App’x 509, 514 (3d Cir. 2005); see also Mauriello v.

University of Medicine and Dentistry of New Jersey, 781 F.2d 46, 50 (3d Cir. 1986) (favorably

citing Justice Powell’s concurrence in Regents of the University of Michigan v. Ewing, 474

Against that legal backdrop, this Court finds that Ph.D. candidates like

Fraser do not possess a constitutionally protected property interest in their

continued enrollment in their respective doctoral programs. Accordingly, Penn

State’s decision to dismiss Fraser falls “entirely outside the ambit of substantive

due process.”136

Second, even if the Court accepted Fraser’s position that his continued

enrollment in a doctoral program is a fundamental right, he has not shown that

Penn State’s decision to dismiss him constituted an “arbitrary and deliberate abuse

of authority.”137 As the Supreme Court held in Regents of University of Michigan

v. Ewing, “[w]hen judges are asked to review the substance of a genuinely

academic decision,” they “should show great respect for the faculty’s professional

judgment”; courts “may not override [the faculty’s decision] unless it is such a

substantial departure from accepted academic norms as to demonstrate that the

person or committee responsible did not actually exercise professional

judgment.”138

Applying that instruction, this Court in February 2023 dismissed the prior

iteration of Fraser’s substantive due process claim because “Fraser’s allegations,

even when viewed in the light most favorable to him, demonstrate that a state

his continued enrollment “is dubious at best,” as it bore “little resemblance to the fundamental

interests that previously had been viewed as implicitly protected by the Constitution”).

136 Nicholas, 227 F.3d at 142.

137 Elansari, 823 F. App’x at 112.

university decided to dismiss a graduate student after a panel consisting of multiple

educated professors found the student’s thesis presentation decision deficient on

two separate occasions.”139 The Court explained that those allegations “do not go

‘beyond the pale of reasoned academic decision-making’ or demonstrate a

conscience-shocking ‘departure from academic norms.’”140 Although Fraser’s

Amended Complaint supplements the initial pleadings with a significant number of

additional allegations, Fraser presents no new details concerning his failed attempts

to defend his thesis, the Doctoral Committee’s decision to dismiss him from the

Program, or his failed attempts to appeal the dismissal—at least, nothing that

materially alters the core factual circumstances surrounding his dismissal.141

Accordingly, the Court again finds that Fraser fails to plead facts

demonstrating that Penn State and the members of his Dissertation Committee

deprived him of a fundamental right through an arbitrary and deliberate abuse of

authority. Count II is therefore dismissed with prejudice.

c. Procedural Due Process

For his final constitutional claims (Counts III and IV), Fraser asserts that his

procedural due process rights were violated when the Dissertation Committee

139 Doc. 31 (Mem. Op.) at 19.

140 Id. (citations omitted).

dismissed him from the doctoral program and also during the appeals process.142

But this Court dismissed identical claims premised on identical pleadings in

February 2023.143 The reasoning underpinning that ruling applies with equal force

here.

Procedural due process requires “that a deprivation of life, liberty, or

property be preceded by notice and opportunity for hearing appropriate to the

nature of the case.”144 Recognizing that “[a] school is an academic institution, not a

courtroom or administrative hearing room,” the Supreme Court has “stopped short”

of finding that the Constitution’s guarantee of procedural due process necessitates

“a formal hearing” prior to a student’s suspension or dismissal from an academic

program.145 Instead, “more informal forms of notice and hearings suffice.”146

Specifically, “[b]efore a public university dismisses a student for

disciplinary reasons, the Due Process Clause requires that it afford ‘rudimentary

precautions against unfair or mistaken findings of misconduct and arbitrary

exclusion.’”147 And if the dismissal is for purely academic reasons, “it faces an

142 See Doc. 33 (Am. Compl.) ¶¶ 266–79 (Count III: procedural due process claim based on

dismissal from the Program), 280–94 (Count IV: procedural due process claim based on the

appeals process).

143 See Doc. 31 (Mem. Op.) at 20–25.

144 Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985) (internal quotation

marks and citation omitted).

145 Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 87–89 (1978).

146 Keles v. Bender, No. 21-1497, 2022 WL 840311, at *3 (3d Cir. 2022) (citing Horowitz, 435

U.S. at 89–90).

even lower hurdle; it need only provide ‘an informal-give-and-take between the

student and the administrative body’ responsible for the dismissal.”148

Here, the Dissertation Committee’s decision to dismiss Fraser from his

doctoral program was “academic” in nature—not disciplinary. As detailed in the

Amended Complaint, Fraser was dismissed from the program because his thesis

defense did not pass muster.149 According to Fraser, when the Dissertation

Committee explained its “reasoning for failing him,” the “only specific criticism

leveled was that ‘throughout the oral defense, [Fraser] made conclusions that

extended far beyond the data presented.”150 And when the Appeal Committee

denied Fraser’s appeal and affirmed his dismissal, it explained that Fraser’s appeal

“did not address the primary cause for his failure during the oral defense” (i.e.,

making conclusions that extended beyond the data) and that Fraser “was unwilling

to take feedback from the [Dissertation Committee] and incorporate it adequately

into his dissertation.”151 Those allegations demonstrate that Fraser was dismissed

not for an act of academic dishonesty such as plagiarism—which this Court has

148 Id. (citing Mauriello, 781 F.2d at 50).

149 See Doc. 33 (Am. Compl.) ¶¶ 186–92 (explaining that after his second thesis defense, he was

“ejected from the Program without the Ph.D.” because his Dissertation Committee “failed him

a second time”), 194–95 (expressing frustration “for being failed on grounds of the oral defense

alone”).

150 Id. ¶¶ 197–99.

held constitutes a “disciplinary” dismissal152—but, rather, because his Dissertation

Committee deemed his thesis inadequate, undeserving of a Ph.D.153

And under the more permissive standard of review for purely academic

actions, the Court finds that Penn State afforded Fraser the process he was due. As

Fraser alleges, he was given two separate opportunities to defend his thesis. Prior

to his first defense, his Dissertation Committee gave Fraser instruction on what

work he needed to perform “to successfully defend his thesis and be awarded his

Ph.D.”154 Indeed, concerned that Fraser’s thesis would not pass muster, the

Dissertation Committee postponed his defense, affording Fraser several additional

weeks to clean up his thesis and make the required revisions.155 And after Fraser

failed despite this direction, the Dissertation Committee outlined their concerns in

152 See Valentine v. Lock Haven University of Pennsylvania, 2014 WL 350857, at *6–7 (M.D. Pa.

July 14, 2014).

153 To be clear, Fraser also asserts, based “[u]pon information and belief,” that “the decision to

dismiss [him] was based in substantial part upon unsubstantiated accusations by Dr. Paulson

that [Fraser] had fabricated data.” Doc. 33 (Am. Compl.) ¶ 271. That allegation, however, does

not accord with the Dissertation Committee’s stated rationale for failing Fraser, which Fraser

quotes directly in his Amended Complaint. See id. ¶ 198. Further, by Fraser’s own admission,

the Dissertation Committee never said anything about Fraser fabricating data—either before

or after his second thesis defense. See id. ¶¶ 198, (describing the Dissertation Committee’s

conclusion that Fraser “made conclusions that extended far beyond the data presented” as

“[t]he only specific criticism leveled”), 272 (“At no point did the [Dissertation Committee]

inform [him] that he had fabricated data in any of the thesis drafts that he submitted prior to

his second defense.”). Perhaps Fraser is simply interpreting the Dissertation Committee’s

rather straightforward finding that he overstated his data as an accusation of data fabrication.

It’s hard to say. Regardless, at this stage, the Court need not credit such conclusory

allegations—particularly when they are inconsistent with the Amended Complaint’s factual

averments that are entitled to a presumption to truth. See Iqbal, 556 U.S. at 681 (holding that

“the allegations are conclusory and not entitled to be assumed true”).

154 Doc. 33 (Am. Compl.) ¶ 109.

writing and then provided Fraser further feedback in the weeks and months before

his second defense.156 By any measure, the extended back-and-forth between

Fraser and the members of his Dissertation Committee—which occurred over the

course of a full academic year—constitutes the type of informal “give-and-take

between the student and the administrative body responsible for the dismissal” that

courts require.157

Moreover, after the Dissertation Committee dismissed Fraser from his

doctoral program, Penn State granted Fraser the opportunity to appeal his

dismissal.158 And Fraser did, in fact, appeal.159 Although the first appellate body

(i.e., the Appeal Committee) included among its members the professors on

Fraser’s Dissertation Committee, Fraser’s second appeal went to the Dean of the

Graduate School, an unbiased administrator who was not involved in either of

Fraser’s failed defenses.160

Taken together, the year-long back-and-forth between Fraser and his

Dissertation Committee preceding his dismissal and the multi-level appeal process

culminating in a final review by an unbiased decisionmaker comfortably clears the

“low[] hurdle” courts have established for procedural due process challenges to

156 Id. ¶¶ 138–41, 152–57.

157 Keles, 2022 WL 840311, at *3 (citing Horowitz, 435 U.S. at 89–90) (internal quotation marks

omitted).

158 Doc. 33 (Am. Compl.) ¶¶ 200–22.

159 Id. ¶ 200.

student dismissals based on academic reasons.161 As such, Counts III and IV of the

Amended Complaint are dismissed. Because the Court’s ruling here aligns with its

February 2023 dismissal of the procedural due process claims presented in Fraser’s

initial Complaint—unaffected by any supplemental pleadings included in the

Amended Complaint—further amendment would be futile. The dismissal is

therefore with prejudice.

2. Qualified Immunity

Separately, the individual Penn State faculty members named as defendants

in this case—Dr. Paulson, Dr. Read, and Dr. Rolls—argue that the constitutional

claims against them should be dismissed because they are entitled to qualified

immunity.162 The Court agrees.

Federal and state officials are immune from lawsuits pertaining to official

conduct unless a plaintiff pleads facts showing the officials violated a statutory or

constitutional right that was “clearly established” at the time of the challenged

conduct.163 The Supreme Court explains that a government official’s conduct

“violates clearly established law when, at the time of the challenged conduct, the

contours of a right are sufficiently clear that every reasonable official would have

161 Keles, 2022 WL 840311, at *3 (citing Horowitz, 435 U.S. at 89–90) (internal quotation marks

omitted). Indeed, even if the Court deemed Penn State’s dismissal of Fraser to be “disciplinary”

in nature, the process the University employed for considering Fraser’s dissertation, dismissing

him from the doctoral program, and affirming that dismissal would exceed the “rudimentary

precautions against unfair or mistaken findings of misconduct and arbitrary exclusion” that

public universities must adopt for disciplinary actions. Id.

162 See Doc. 42 (Penn State Br.) at 12.

understood that what he is doing violates that right.”164 Such “clearly established

rights are derived either from binding Supreme Court and Third Circuit precedent

or from a robust consensus of cases of persuasive authority in the Courts of

Appeals.”165 And “[u]nless the plaintiff’s allegations state a claim of violation of

clearly established law, a defendant pleading qualified immunity is entitled to

dismissal before the commencement of discovery.”166

Here, Fraser does not dispute that Dr. Paulson, Dr. Reed, and Dr. Rolls, as

Penn State employees, are “public officials for Section 1983 purposes.”167 Instead,

Fraser opposes the professors’ qualified immunity defense solely on the basis that

“he has adequately pleaded that [they] did in fact violate Constitutional rights

clearly established by existing case law.”168 But that’s incorrect. As detailed above,

the pleadings in the Amended Complaint do not support Fraser’s constitutional

claims: the allegations fail to establish that either Penn State or its faculty members

violated Fraser’s rights guaranteed by the First and Fourteenth Amendments.

Because Fraser has “identified neither Supreme Court precedent nor a robust

consensus of cases of persuasive authority” demonstrating that Dr. Paulson, Dr.

164 Id. at 741 (internal quotation marks, brackets, and citation omitted).

165 Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir. 2018) (internal quotation marks and citation

omitted).

166 Mitchell v. Forsyth, 472 U.S. 511, 526 (1986)).

167 Doc. 42 (Penn State Br.) at 12; see also Doc. 49 (Fraser Opp. to Penn State Mot. to Dismiss)

at 17 (“Fraser therefore confines his arguments in response to those outlined [in his section

concerning the substance of the constitutional claims].”).

Reed, and Dr. Rolls violated clearly established law,169 his Section 1983 claim

against the professors is dismissed on qualified immunity grounds as well.170

3. Monell Liability

In its final argument in opposition to Fraser’s constitutional claims, Penn

State asserts that “Fraser’s claims against the University under Section 1983 must

be dismissed because he fails to state a claim under Monell,” emphasizing that

“Fraser does not identify any University policy that caused the alleged retaliation

or his termination from the Program.”171 The Court, however, need not address that

argument. To establish municipal liability for a constitutional violation, there must

first be a constitutional violation.172 And, as discussed, Fraser has failed to allege

that any member of the Penn State faculty violated his constitutional rights.

B. Fair Labor Standards Act

In Count XII of the Amended Complaint, Fraser reasserts his FLSA claims

against Keystone Nano and Penn State, arguing that both Defendants “failed to pay

[him] for all hours worked . . . outside the scope of his education Program, stipend

duties, and fellowship duties.”173 The Defendants have separately moved to dismiss

169 Mirabella v. Villard, 853 F.3d 641, 653 (3d Cir. 2017) (internal quotations marks and citation

omitted) (holding that defendants were entitled to qualified immunity at the pleading stage).

170 See also McKee, 436 F.3d at 171 (“Because [the plaintiff] has not alleged the deprivation of a

constitutional right, [the defendant] is entitled to qualified immunity.”).

171 Doc. 42 (Penn State Br.) at 11.

172 See Natale v. Camden County Correctional Facility, 318 F.3d 575, 584 (3d Cir. 2003) (holding

that to establish Monell liability, a plaintiff needs to show “that the policy caused the

constitutional violation [he] allege[s]”).

the FLSA claims, arguing that the FLSA protections do not apply to Fraser—at

least not regarding the work he performed for Keystone Nano and Penn State,

respectively.174

The FLSA established “baseline standards through federal minimum-wage,

maximum-hour, and overtime guarantees that cannot be modified by contract.”175

That said, FLSA protections “do not extend to everyone.”176 The FLSA applies

only to individuals “employed by an employer.”177 Put differently, to be covered,

an individual worker must be an “employee.”178 And even then, the FLSA

enumerates certain categories of employees to whom the title and its protections do

not apply.179

For the reasons provided below, the Court finds that Fraser was not a

covered employee of either Keystone Nano or Penn State.

1. Keystone Nano

Fraser first asserts that he is entitled to damages from Keystone Nano under

the FLSA because the company did not compensate him for work he performed on

its behalf.180 To be clear, Fraser does not allege that he ever entered a formal

174 See Doc. 40 (Keystone Nano Br.) at 6–16; Doc. 42 (Penn State Br.) at 31–35.

175 Smiley v. E.I. Dupont De Nemours and Co., 839 F.3d 325, 329–30 (3d Cir. 2016) (internal

quotation marks and citation omitted).

176 Clews v. County of Schuylkill, 12 F.4th 353, 359 (3d Cir. 2021).

177 29 U.S.C. § 203(e)(1); see also Razak v. Uber Technologies, Inc., 951 F.3d 137 (3d Cir. 2020)

(analyzing whether Uber drivers qualify as “employees” under the FLSA or are instead

properly categorized as independent contractors).

178 Id.

179 29 U.S.C. § 213.

contractual arrangement with Keystone Nano; there is no written employment

contract or agreement, no promise of payment, no express commitment of any

kind.181 Instead, Fraser claims that because he performed laboratory work for

Keystone Nano’s benefit while pursuing his Ph.D. at Penn State, he should be

considered a Keystone Nano employee—in substance, if not in form.182 Keystone

Nano disputes that, arguing that no employment relationship existed because no

one at Keystone Nano “ever had any contact or control whatsoever over Fraser.”183

The Court agrees with Keystone Nano.

When assessing whether an employer-employee relationship exists under the

FLSA, courts apply different legal standards based on the nature of the alleged

employment relationship at issue. Here, the parties disagree on what standard

should apply. Keystone Nano asks the Court to apply the six-part “economic

realities” test adopted by the Third Circuit in Donovan v. DialAmerica Marketing,

Inc.,184 which is principally “intended to measure and balance the competing

economic realities involved in an employee/independent contractor distinction.”185

Conversely, Fraser urges the Court to adopt the multi-factor test developed by the

181 See id. ¶¶ 23–66.

182 See Doc. 41 (Fraser Opp. to Keystone Nano Mot. to Dismiss) at 5–17.

183 Doc. 48 (Keystone Nano Reply) at 1.

184 See Doc. 40 (Keystone Nano Br.) at 8 (citing Razak, 951 F.3d at 142–43; Donovan v.

DialAmerica Marketing, Inc., 757 F.2d 1376, 1382 (3d Cir. 1985)).

185 Todaro v. Township of Union, 27 F. Supp. 2d 517, 534 (D.N.J. 1998) (internal quotation marks

United States Court of Appeals for the Second Circuit in Glatt ex rel. situated v.

Fox Searchlight Pictures, Inc. to assess the employment status of unpaid interns.186

But neither standard fits the circumstances at issue here. Keystone Nano

does not claim that it hired Fraser as an independent contractor, compensating him

for specific tasks performed; it argues there was no employment relationship of

any kind.187 And Fraser does not assert that he was hired to work for Keystone

Nano as an unpaid intern; indeed, the term “intern” does not appear in the

Amended Complaint.188 As this Court sees it, the role of Ph.D. candidate—

fundamentally academic in nature, but with an opportunity for (and, in some cases,

an expectation of) compensation from either the university or outside funding

sources—is distinct from other, traditional professional arrangements, and, as such,

it elides easy classification for purposes of an FLSA analysis.

That said, there are components of both the Donovan economic realities test

and the Glatt test for unpaid interns that are relevant here. Specifically, when

assessing a possible employment relationship between a doctoral candidate and an

external commercial entity,189 courts should consider the following factors: (1) the

186 See Doc. 41 (Fraser Opp. to Keystone Nano Mot. to Dismiss) at 8 (citing Glatt ex rel. situated

v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015)).

187 See Doc. 48 (Keystone Nano Reply) at 5 (“Fraser was a student at Penn State, and Fraser’s

work was directed by [Dr. Paulson], an employee of Penn State, as part of Fraser’s doctoral

program.”).

188 See Doc. 33 (Am. Compl.).

189 By external, this Court means a commercial entity independent of the university with which

relationship between the work performed and the Ph.D. candidate’s doctoral

program; (2) the Ph.D. candidate’s reasonable expectation of compensation; and

(3) the level of control the company exerted over the Ph.D. candidate’s work.190

Here, all three factors support Keystone Nano’s position that Fraser was not a

Keystone Nano employee during his time as a Ph.D. candidate at Penn State.

First, to the extent Fraser performed work for the benefit of Keystone Nano,

he did so as part of his doctoral program. Fraser was selected for the Keystone

Nano-related work because of his placement in the Ph.D. program; absent his

doctoral candidacy at Penn State, he would not have been eligible for the role.191

Fraser conducted the relevant research and experiments at a Penn State laboratory,

at the direction of Dr. Paulson, a Penn State professor.192 And Fraser’s continued

placement in, and successful completion of, his doctoral program was allegedly

contingent on, among other things, his work related to Keystone Nano.193 Because

190 See Glatt, 811 F.3d at 536–37 (“1. The extent to which the intern and the employer clearly

understand that there is no expectation of compensation. Any promise of compensation,

express or implied, suggests that the intern is an employee—and vice versa; . . . 3. The extent

to which the internship is tied to the intern’s formal education program . . . .”); Donovan, 757

F.2d at (“(1) the degree of the alleged employer’s right to control the manner in which the work

is to be performed . . . .”). The factors specified are non-exhaustive; this Court acknowledges

that different circumstances may necessitate the assessment of additional considerations.

See Glatt, 811 F.3d at 537 (noting that “the factors [specified] are non-exhaustive—courts may

consider relevant evidence beyond the specified factors in appropriate cases”).

191 Indeed, after Fraser “stopped agreeing to assist on the Keystone Nano work[,] . . . another

graduate student in Dr. Paulson’s lab replaced [him] in the Keystone Nano role.” Doc. 33

(Am. Compl.) ¶ 39.

192 See Doc. 33 (Am. Compl.) ¶¶ 20 (describing “the facilities and lab materials Mr. Fraser used

in Dr. Paulson’s lab”), 30 (discussing “Keystone Nano drugs sent to Dr. Paulson’s lab by Mark

Kester’s lab (owner of Keystone Nano)”).

193 See, e.g., id. ¶¶ 41 (asserting that if Fraser “did not complete the [Keystone Nano] work outside

Fraser’s work on behalf of Keystone Nano is inseparable from his doctoral

candidacy, this factor militates against the finding of an employer-employee

relationship.

Second, although Fraser alleges that he had “an expectation of

compensation,” the pleadings in the Amended Complaint fail to show that such an

expectation was reasonable.194 Fraser notes “Keystone Nano’s historical practice”

of “paying students for work conducted outside the scope of the education

Program, stipend duties, and fellowship duties,” but the Amended Complaint is

devoid of any factual averments substantiating that claim.195 To the extent the

Amended Complaint references non-stipend and non-fellowship funding for Penn

State graduate students, it provides that such funding was “customarily paid by

Penn State.”196

Moreover, as Keystone Nano argues, based on the pleadings in the

Amended Complaint, it is unclear that Keystone Nano “knew the nature of Fraser’s

program, that the work he allegedly performed was outside of his program, or that

anyone at Keystone Nano had any contact with Fraser at all.”197 Absent some

indication that individuals at Keystone Nano were aware of the work Fraser was

335 (“[D]espite not being an explicit requirement of the Program, Mr. Fraser working for free

(effectively as an indentured servant) was an implicit requirement of obtaining his Ph.D.”).

194 Doc. 41 (Fraser Opp. to Keystone Nano Mot. to Dismis) at 9.

195 Doc. 33 (Am. Compl.) ¶ 47.

196 Id. ¶ 334.

performing on the company’s behalf and communicated with Fraser about the

nature and scope of that work, the Court cannot credit Fraser’s claim that he

reasonably expected Keystone Nano to compensate him. Accordingly, this factor

likewise suggests that no employer-employee relationship existed between

Keystone Nano and Fraser.

And third, the Amended Complaint does not establish that Keystone Nano

had any control over the manner in which Fraser purportedly performed work on

the company’s behalf. In the February 2023 Memorandum Opinion dismissing the

Keystone Nano FLSA claim in Fraser’s initial Complaint, this Court held that

Fraser “failed to plead any facts that Keystone Nano exerted any significant control

over Fraser.”198 explaining that “[a]t most, . . . the Complaint [alleges] that Dr.

Paulson was affiliated with Keystone Nano, and that the alleged extracurricular

work Dr. Paulson required Fraser to complete somehow benefitted Keystone

Nano,” but that was “not enough to establish that Keystone Nano exercised any

‘control’ over Fraser.”199

The additional allegations in the Amended Complaint fail to remedy the

identified deficiencies. Indeed, when discussing this factor in his opposition brief,

Fraser again emphasizes only that “he was directed to perform tasks by Dr.

Paulson, on behalf of Keystone [Nano] and Penn State.”200 But as Keystone Nano

198 Doc. 31 (Mem. Op.) at 27

199 Id. (cleaned up).

notes, the Amended Complaint contains no details on “how Dr. Paulson, a Penn

State employee, was connected to Keystone Nano,” or whether Dr. Paulson “ever

took any direction from an employee of Keystone Nano related to Fraser’s

work.”201 Without such detail, Fraser cannot demonstrate that Keystone Nano

possessed the requisite right to control Fraser’s work needed to show the existence

of an employer-employee relationship.

Fraser has therefore failed to plead that he was an employee of Keystone

Nano. And as such, his FLSA claim against the company cannot proceed.202

2. Penn State

As it relates to Penn State, the question is whether a university’s doctoral

candidates—who are enrolled at the university and, as part of their doctoral

201 Doc. 48 (Keystone Nano Reply) at 6–7 (cleaned up).

202 Separately, Fraser argues that this Court should deem him a Keystone Nano employee under

the “joint employer” framework the Third Circuit adopted in In re Enterprise Rent-A-Car

Wage & Hour Employment Practices Litig., 683 F.3d 462, 469 (3d Cir. 2012). See Doc. 41

(Fraser Opp. to Keystone Nano Mot. to Dismiss) at 15–17. That framework consists of four

factors: “does the alleged employer have (1) authority to hire and fire employees; (2) authority

to promulgate work rules and assignments, and set conditions of employment, including

compensation, benefits, and hours; (3) day-to-day supervision, including employee discipline;

and (4) control of employee records, including payroll, insurance, taxes, and the like.”

In re Enterprise Rent-A-Car, 683 F.3d at 469. As this Court sees it, all four factors fall under

the broader parameters of an employer’s “control” of a purported employee. Consistent with

the Court’s conclusion that Fraser fails to plead that Keystone Nano possessed the right to

control his work on behalf of the company, the Court finds that the four “joint employment”

factors weigh against Fraser: there is no indication that Keystone Nano had the authority to

dictate which Penn State Ph.D. candidates worked on its research, the assignments and

conditions of the work the Ph.D. candidates performed, or the Ph.D. candidates’ day-to-day

tasks on Keystone Nano-related projects; nor does Fraser allege that Keystone Nano

maintained any employee records for the Penn State Ph.D. candidates performing work for the

company. Accordingly, Fraser’s FLSA claim against Keystone Nano fails on this theory as

programs, receive funding from either the university or an outside source—qualify

as university “employees” under the FLSA such that they are covered by the law’s

minimum wage and hour requirements. That question does not lend itself to a

bright-line rule, as the answer depends on the nature of both the work and the

funding stream. But, generally speaking, FLSA protections do not extend to

doctoral candidates. And here, they do not apply to Fraser.

Given the surprising paucity of prior legal rulings on the issue, the Court

relies instead on the text of the statute as well as the agency rules and guidance

relating thereto.203 Specifically, Section 13(a)(1) of the FLSA provides that the

statute’s minimum wage and hour requirements do not apply to “any employee

employed in a bona fide . . . professional capacity.”204 And United States

Department of Labor (“DOL”) regulations detail the types of workers who meet

that standard, including “learned professionals” and “teachers.”205

Although none of the DOL rules on “employee[s] employed in a bona fide

professional capacity” specifically discusses student-employees such as graduate

teaching assistants and research assistants, the DOL has issued guidance on the

matter. In a Fact Sheet titled “Higher Education Institutions and Overtime Pay

203 None of the parties directs the Court to any case law specifically addressing the issue of how

doctoral candidates are treated under the FLSA, and the Court, through its research, has not

found any.

204 29 U.S.C. § 213(a)(1).

205 See 29 C.F.R. § 541.301 (“Learned professionals” exemption); 29 C.F.R. § 541.303

Under the [FLSA],” most recently revised in September 2019, the DOL instructs

that neither graduate teaching assistants nor research assistants are covered by the

FLSA’s minimum wage and hours requirements, albeit for different reasons:

Graduate Teaching Assistants. Graduate teaching

assistants whose primary duty is teaching are exempt.

Because they qualify for the teacher exemption, they are

not subject to the salary basis and salary level tests.

Research Assistants. Generally, an educational

relationship exists when a graduate or undergraduate

student performs research under a faculty member’s

supervision while obtaining a degree. Under these

circumstances, the Department would not assert that an

employment relationship exists with either the school or

any grantor funding the student’s research. This is true

even though the student may receive a stipend for

performing the research.206

The Court is not bound by the DOL’s Fact Sheet,207 but it finds the DOL

guidance persuasive.208 For graduate teaching assistants, because Ph.D. candidates

serving in that capacity support university professors by assuming certain

206 United States Department of Labor, Fact Sheet #17S: Higher Education Institutions and

Overtime Pay Under the Fair Labor Standards Act (FLSA) (Revised Sept. 2019),

https://www.dol.gov/agencies/whd/fact-sheets/17s-overtime-educational-institutions.

207 See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (informal agency guidelines are

entitled to deference “only to the extent that [they] have the power to persuade”); see also

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (explaining that informal agency “rulings,

interpretations, and opinions . . . while not controlling upon the courts by reason of their

authority, do constitute a body of experience and informed judgment to which courts and

litigants may properly resort for guidance”; “[t]he weight of such a judgment in a particular

case will depend upon the thoroughness evident in its considerations, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those factors which

give it power to persuade”).

208 See Reich v. Parker Fire Protection Dist., 992 F.2d 1023, 1026–27 (10th Cir. 1993) (applying

obligations associated with instructing a class,209 they logically fit within the FLSA

exemption for “any employee with a primary duty of teaching, tutoring,

instructing, or lecturing in the activity of imparting knowledge and who is

employed and engaged in this activity as a teacher in an educational

establishment.”210 Indeed, the non-exhaustive list of professionals covered by the

teaching exemption found at 29 C.F.R. § 541.303(b) includes “teachers engaged in

automobile driving instruction” and “vocal or instrumental music instructors.”

Surely, if the exemption applies to driving school and music instructors, it covers

graduate teaching assistants as well. Accordingly, although graduate teaching

assistants likely qualify as “employees” under the FLSA, they are not subject to the

law’s minimum wage and hour requirements because they fall within an

enumerated exception.211

For graduate research assistants, the Court agrees with the DOL that to the

extent a Ph.D. candidate, in connection with her doctoral program, conducts

research under a professor’s supervision, that research does not create an

employer-employee relationship. Rather, that research role should be understood as

a component of the candidate’s doctoral studies.212

209 For example, this is how Fraser describes his duties as a teaching assistant with Penn State’s

biology department: “teach the classes, keep office hours, respond to student emails, and grade

assignments, tests, and papers.” Doc. 33 (Am. Compl.) ¶ 25.

210 29 C.F.R. § 541.303(a).

211 See 29 U.S.C. § 213(a)(1).

212 Moreover, even if the funded graduate assistant research was sufficiently independent of the

Against that backdrop, the Court finds that Fraser does not qualify as a non-

exempt employee of Penn State under the FLSA. For the two academic years in

which Fraser served as a teaching assistant (2015–16 and 2018–19),213 he fell

within the FLSA’s exemption for teachers, rendering the law’s minimum wage and

hours requirements inapplicable.214 For Fraser’s two academic years funded by an

NIH fellowship, the grant explicitly covered Fraser’s thesis work.215 And the

stipend Fraser received from Dr. Read likewise pertained to his doctoral studies.216

Accordingly, for the three years Fraser received funding for his research (unrelated

to any teaching obligations), no employment relationship existed—with either

Penn State or the NIH.217

To the extent Fraser believes the laboratory work unrelated to his

dissertation that Dr. Paulson directed him to do somehow changes his employment

relationship with Penn State, he is mistaken. By Fraser’s own admission, that lab

program—thus, making the research role more akin to a graduate teaching assistant position—

the Ph.D. candidate would likely be considered exempt under the “learned professionals”

exemption. See 29 C.F.R. § 541.303. To fall under that exemption, an employee must “perform

work requiring advanced knowledge” in a “field of science or learning” that is “customarily

acquired by a prolonged course of specialized intellectual instruction.” 29 C.F.R. § 541.303(a).

Although it appears this exemption has yet to be applied to graduate research assistants, courts

have found that the exemption covers post-doctoral research associates. See Balyasnikova v.

University of Illinois at Chicago, 2007 WL 2669106 (N.D. Ill. Sept. 7, 2007). This Court sees

no reason why the “learned professionals” exemption would apply to post-doctoral fellows

performing independent research but not their pre-doctoral counterparts performing similar

work.

213 See Doc. 33 (Am. Compl.) ¶¶ 25, 34.

214 See 29 C.F.R. § 541.303(a).

215 See Doc. 33 (Am. Compl.) ¶¶ 28, 31.

216 See id. ¶ 37.

work was required as part of his doctoral Program: if he did not perform that work,

“he would not have passed the Program.”218 Fraser may well believe that doctoral

programs like the Molecular, Cellular, and Integrative Biosciences Program at

Penn State should not require Ph.D. candidates to perform laboratory work at the

direction of their thesis advisors that is unrelated to their respective dissertations.

He may think that Ph.D. candidates should be permitted to conduct their doctoral

work unencumbered by external demands or requirements. His frustrations do not,

however, alter his employment status with Penn State as it relates to the FLSA.

Accordingly, Fraser’s FLSA claim against Penn State is dismissed.

C. State Law Claims

Fraser brings seven additional claims arising under Pennsylvania state

law.219 The Court, however, need not address those claims at this juncture. Because

Fraser’s federal claims must be dismissed, the Court will decline to exercise

supplemental jurisdiction over any state law claim.220

218 Doc. 33 (Am. Compl.) ¶¶ 40–42, 347–49, 389–91.

219 See Doc. 33 (Am. Compl.) ¶¶ 298–303 (Count V: Breach of Contract), 304–12 (Count VI:

Breach of Implied Covenant of Good Faith and Fair Dealing), 313–20 (Count VII: Promissory

Estoppel / Detrimental Reliance), 321–32 (Count VIII: Defamation Per Se and Defamation),

333–42 (Count IX: Violation of Pennsylvania Minimum Wage Act), 343–75 (Count X:

Violation of Pennsylvania Wage Payment and Collection Law), 376–85 (Count XI: Beach of

Implied Contract / Unjust Enrichment).

220 See 28 U.S.C. § 1367(c)(3); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)

(explaining general rule that if all federal claims are dismissed, courts should likewise dismiss

IV. CONCLUSION

While pursuing his Ph.D. at Penn State, Fraser twice tried and failed to

defend his doctoral thesis. Now, as a litigant in federal court, he has twice tried and

failed to present a viable federal claim based on his unsuccessful thesis defenses

and subsequent expulsion from his doctoral program. Fraser previously attempted

to appeal his dismissal with the appropriate Penn State officials to no avail.

Because further amendment of his claims here would be futile, Fraser’s Amended

Complaint is dismissed with prejudice; he is free to explore whether an appeal will

fare better with the Third Circuit.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge