Krug v. Bloomsburg University

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

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

:

Plaintiff, :

:

v. :

:

BLOOMSBURG UNIVERSITY, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is the motion for judgment as a matter of law and new trial,

filed by Defendants Bloomsburg University (“Bloomsburg”), Pennsylvania State

System of Higher Education (“PASSHE”), Dr. Bashar Hanna (“Dr. Hanna”) and

Dr. James Krause (“Dr. Krause”) (collectively, “Defendants”). (Doc. 191.) In the

amended complaint, Dr. Krug alleged his employment was terminated in

retaliation for assisting Bloomsburg University’s President Dr. Hanna’s executive

assistant in making allegations of sexual harassment and financial misconduct

against Dr. Hanna, in violation of multiple federal and state statutes.1 (Doc. 54.)

After a seven-day jury trial, the jury returned a verdict in favor of Dr. Krug on each

claim, awarding him $1,008,549 in back pay, $775,589 in front pay, $1,500,000 in

1 Dr. Krug alleged Title IX retaliation claims, Title VII retaliation claims, § 1983 First

Amendment retaliation and deprivation of procedural due process claims, as well as

Pennsylvania Whistleblower Law claims and retaliation claims under the Pennsylvania Human

Resources Act (“PHRA”) against Defendants stemming from his termination as Dean of the

Business School at Bloomsburg University. (Doc. 54.) Dr. Krug also alleged retaliation for

filing complaints of retaliation against him. (Id.)

compensatory damages, and $450,000 in punitive damages against Dr. Hanna and

$200,000 in punitive damages against Dr. Krause. (Doc. 176.) Defendants now

move for judgment as a matter of law and for a new trial under Federal Rules of

Civil Procedure 50(b) and 59. (Doc. 191.) For the reasons that follow,

Defendants’ motion for judgment as a matter of law and new trial will be denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY2

Dr. Krug initiated this case via complaint on August 22, 2018. (Doc. 1.)

Defendants answered that complaint on October 22, 2018. (Doc. 10.) Dr. Krug

filed the operative amended complaint on July 8, 2019, which Defendants

answered on July 18, 2019. (Docs. 54, 57.) The parties’ filed cross-motions for

summary judgment in March and May 2022, respectively. (Docs. 79, 88.) The

court denied both motions on February 13, 2023, and after a telephone conference

with the parties on February 16, 2023, this case was listed for a date certain trial.

(Docs. 114, 117.) The trial date was continued once, and ultimately commenced

on August 12, 2024. (Doc. 123.)

Dr. Krug proceeded to trial on ten claims against the Defendants: 1) § 1983

First Amendment retaliation against Drs. Hanna and Krause; 2) § 1983 Fourteenth

Amendment procedural due process deprivation of a property interest in

2 In this factual background section, the court has included only the facts elicited at trial that are

implicated by the parties’ arguments in the instant motion or necessary to provide sufficient

context.

employment against Drs. Hanna and Krause; 3) § 1983 deprivation of liberty

interest in reputation against Drs. Hanna and Krause; 4) Title VII retaliation for

reporting sexual harassment against Bloomsburg University and PASSHE; 5) Title

VII retaliation for complaining of retaliation against Bloomsburg University and

PASSHE; 6) Title IX retaliation for reporting sexual harassment against

Bloomsburg University and PASSHE; 7) Title IX retaliation for complaining of

retaliation against Bloomsburg University and PASSHE; 8) PHRA retaliation for

assisting in reporting sexual harassment against Bloomsburg University, PASSHE,

Dr. Hanna, and Dr. Krause; 9) PHRA retaliation for complaining of retaliation

against Bloomsburg University, PASSHE, Dr. Hanna, and Dr. Krause; and 10)

violation of the Pennsylvania Whistleblower Law against Bloomsburg University,

PASSHE, Dr. Hanna and Dr. Krause. Dr. Krug requested compensatory damages,

front pay, back pay, and punitive damages.

A. Pre-Trial Motions

Prior to the start of trial, Defendants filed three motions in limine and Dr.

Krug filed one. (Docs. 126, 128, 130, 148.) The resolution of one of these

motions warrants discussion because it bears on the instant motion.3 Defendants

3 The court granted Defendants’ motion in limine regarding the substance of misconduct

allegations against Dr. Hanna, deferred ruling on Defendants’ motion in limine regarding the

involvement of Bloomsburg University, and denied Defendants’ motion in limine request to file

further motions in limine. (Doc. 142.) The court denied Dr. Krug’s motion to find

Bloomsburg’s discrimination and harassment policy unconstitutional. (Doc. 156.)

filed a motion in limine to exclude the substance of the allegations against Dr.

Hanna, arguing that permitting Dr. Krug to explore the substance of the sexual

harassment allegations against Dr. Hanna did not have a proper purpose under

Federal Rule of Evidence 404(b), and any probative value would be outweighed by

prejudice, under Rule 403. (Doc. 127.) Dr. Krug opposed this request, arguing

that the evidence was admissible as part of the res gestae of the case and the

evidence is “part and parcel” of the underlying allegations. (Doc. 132.)

Initially, the court granted the motion in limine and held that Dr. Krug was

only permitted “to tell the jury how an allegation of misconduct regarding Dr.

Hanna was made, and the steps that were taken after the report of misconduct was

made. However, the specific details of the allegation of misconduct will be

precluded because those details would be unfairly prejudicial to Defendant

Hanna[.]” (Doc. 142.) After the court entered this order, Plaintiff’s counsel

requested “clarification” of the order, and both parties and the court discussed the

order on a telephonic status conference. (Doc. 146, 147.) During the status

conference, Plaintiff’s counsel asked whether he could reference that the

allegations dealt with sexual harassment and discrimination, generally. (Doc.

155.)4 Defense counsel argued that the idea Plaintiff could not meet his prima

4 The cited document is the minute sheet from the telephone conference. The substance of what

was said at the conference is taken from the court’s notes as reflected in the minute sheet.

facie case without reference to the type of allegations is false, and any reference to

sexual harassment or discrimination is unduly prejudicial and irrelevant. (Id.)

After this input from both parties, the court clarified its previous order and held

that “the parties may elicit the fact that the alleged misconduct was in the form of

sexual harassment or discrimination and financial wrongdoing or waste. The

parties may not elicit testimony regarding the specific actions that give rise to these

allegations.” (Doc. 158.)

With these evidentiary rulings in mind, Plaintiff’s counsel limited discussion

of the underlying allegations in his opening statement, specifically stating:

Let me tell you what happened. The first witness you’re going to hear

from, her name is Angela Crossley. Ms. Crossley was a secretary or

executive assistant to Dr. Hanna, and she was being sexually harassed.

Now, I’m not going to and none of us are going to talk about what that

sexual harassment entailed because this is not her case against Dr.

Hanna. There is no case. That’s not the issue. And that would not

really be fair to him in this retaliation case. All you need know is, she

complained he’s sexually harassing me. She didn’t know what to do.

He is a very big deal, and she didn’t know what to do.

(Doc. 196, p. 161.) Then, despite the court’s ruling and Plaintiff’s counsel’s

opening statement, Defendants’ counsel began to discuss the substance of the

allegations against Dr. Hanna during the defense opening. Plaintiff’s counsel

immediately objected. (Id. at 79, 80.) At sidebar, the court warned Defendants’

counsel that, “if you present this information to the jury, you are now injecting the

issue into the case. It will be a factual dispute that plaintiff can present evidence

on. Is that what your intention is?” and Defendants’ counsel confirmed that was

their intention. (Id. at 81.) Plaintiff’s counsel then requested a rebuttal opening

statement, since Plaintiff had not discussed the facts of the underlying sexual

harassment in his opening based on the court’s in limine ruling, and the court

granted the request. (Id.)

B. Plaintiff’s Evidence

Plaintiff began his case by presenting the testimony of Angela Crossley.

Ms. Crossley testified that she was the administrative assistant to the president of

Bloomsburg University; both Dr. Hanna and his predecessor. (Id. at 91.) Ms.

Crossley testified that, after Dr. Hanna began his tenure as president, while

performing her duties, she noticed financial red flags by Dr. Hanna such as

submitting receipts twice and inappropriate uses of discretionary funds. (Id. at 95,

96.) Ms. Crossley then detailed some of Dr. Hanna’s behavior towards her,

including, what she felt was inappropriate use of terms of endearment, rubbing her

shin with his foot when they were sitting in proximity to one another, rubbing her

arm or shoulder while they were talking, kissing her on the cheek when leaving a

group event. She also described one incident when she was crying in Dr. Hanna’s

office, and then he embraced her, kissed her forehead, and stated something along

the lines of “you remind me of my sisters when you cry.” (Id. at 97–104.)

Crossley also testified that she spoke to Bloomsburg University Trustee

Robert Dampman about Dr. Hanna’s behavior towards her. Eventually, after

receiving the advice of her friend Judy Rostucher, who worked for Dr. Krug, she

also spoke with Dr. Krug about her concerns. (Id. at 108–14.) Crossley testified

that she went with Dr. Krug and Judy Rostucher to report the alleged sexual

harassment to Bloomsburg University’s Title IX office, where she was met with

indifference. (Id. at 114–19.) Ms. Crossley testified that she met with

investigators from PASSHE regarding the allegations in public at a Panera Bread

and in the back of a van. (Id. at 120–25.)

Plaintiff next presented the testimony of Judy Rostucher, Ms. Crossley’s

friend, who worked with Dr. Krug, and who helped Ms. Crossley connect with Dr.

Krug, went with Crossley and Dr. Krug to report to the Title IX office, and

accompanied Crossley when she was interviewed by PASSHE investigators. (Id.

at 133–140.) Rostucher also testified to perceived retaliation she experienced after

helping Crossley report her allegations, including rumors of a romantic affair

spread about Rostucher and Dr. Krug and email irregularities. (Id. at 141–59.)

Rostucher testified about an investigative report into this situation which

misrepresented her interview. Specifically, Rostucher testified that her union

representative “flew into a rage” upon seeing the final report because “she

[Rostucher] never said any of this stuff.” (Id. at 165.)

Dr. Krug called Dr. Robert Dampman to testify that Angela Crossley

contacted him to discuss her allegations of sexual harassment against Dr. Hanna

around the end of October 2017. Dr. Dampman attempted to discuss these

allegations at Trustee meetings, but felt stonewalled. (Doc. 197, pp. 14–18, 23–

25.)

Next, Dr. Krug called Dr. Hanna as on cross. Dr. Hanna began by outlining

his career and testifying about a previous complaint against him while employed at

Kutztown University, and his ultimate separation from that University. (Id. at 39–

46.) Dr. Hanna also testified to recognizing an anonymous email which was sent

to Bloomsburg University from Delaware Valley University while Dr. Hanna was

applying for the president position at Bloomsburg, which referenced Dr. Hanna’s

behaviors towards women. (Id. at 63.) This email was admitted over Defendants’

objection for the specific purpose of proving PASSHE’s knowledge as to the

allegations contained in the email. (Id. at 66–70; 75, 76.)

Dr. Hanna testified to a letter he sent Dr. Krug on March 9, 2018, stating that

Dr. Krug was an at-will employee. Dr. Hanna testified that he did not know that

March 9, 2018 was the same date that Dr. Krug attended a pre-disciplinary

conference (“PDC”) with Dr. Krause to address Dr. Krug’s disclosures of Ms.

Crossley’s complaint. (Id. at 95–98.) Dr. Hanna testified that PASSHE initiated

moving Angela Crossley to different employment after she made allegations

against him. (Id. at 101–05.) Dr. Hanna testified that Suzanne Williamson

conferred with Dr. Krause prior to Dr. Krug’s PDC, and Ms. Williamson also

participated in Dr. Hanna’s PDC. (Id. at 106, 111.) Dr. Hanna testified that, after

his PDC with the Chancellor of PASSHE, where he was provided the opportunity

to have counsel and the opportunity to respond to the investigative report against

him, the Chancellor adopted the conclusions of the report that there had been “no

financial wrongdoing, no hostile work environment, no retaliation, and no sexual

harassment.” (Id. at 133, 134.)

Dr. Alan Krug also testified on behalf of his son, Dr. Jeffrey Krug. Dr. Alan

Krug testified to his career background as a lobbyist, and one conversation with his

son in which Dr. Jeffrey Krug told Alan Krug about a sexual harassment allegation

from a friend of Jeffrey Krug’s assistant, Judy Rostucher. (Id. at 148–53.) Dr.

Alan Krug also testified how he informed two state legislators who were on the

PASSHE board about the allegations against Dr. Hanna. (Id. at 153, 54.) Dr.

Jeffrey Krug’s sister, Angela Johnston, also testified as to her experience with Title

IX enforcement, her experiences in discussing Angela Crossley’s allegations with

Dr. Krug and Ms. Crossley herself on a separate occasion, and the advice that

Angela Johnston gave to her brother regarding the necessity that he report Ms.

Crossley’s allegations to the appropriate authorities. (Id. at 174–93.)

Dr. Jeffrey Krug testified on his own behalf. He testified as to his

professional background and how he came to work at Bloomsburg University. (Id.

at 193–221.) Dr. Krug also testified as to the pre-disciplinary conference (“PDC”)

that occurred with Dr. Krause, PASSHE employee Lisa Sanno, and a Bloomsburg

HR representative on March 9, 2018. (Id. at 221–23.) The night before the PDC,

Dr. Krug was inadvertently emailed the entirety of an independent investigation

undertaken by the law firm Ballard Spahr. (Id. at 224.) Dr. Krug also testified to

his meetings with Dr. Wislock, the Title IX coordinator, Angela Crossley, and

Judy Rostucher. (Id. at 235–50.)

Dr. Krug testified regarding retaliation that he experienced after assisting

Ms. Crossley report her allegations, such as an administrative assistant who was

moved into Dr. Krug’s office by Dr. Krause rifling through Dr. Krug’s belongings

and computer, files going missing, emails being read remotely, and rumors spread

about him and Ms. Rostucher. (Id. at 250-51, 259.) Dr. Krug and Ms. Rostucher

filed Title IX complaints regarding this alleged retaliation. (Id. at 262.)

Dr. Krug detailed his objection to Dr. Krause conducting the PDC, including

the fact that Dr. Krug had lodged complaints of retaliation against Dr. Krause, and

Dr. Krause’s statement at the PDC that Dr. Hanna had appointed Krause to be the

“arbiter” of Dr. Krug’s fate. (Doc. 198, p. 29.) Dr. Krug testified as to emails

between Dr. Krause and PASSHE legal counsel Suzanne Williamson, which

drafted Dr. Krug’s termination letter and an announcement regarding the

termination of Krug’s employment as Dean the day before Krug’s PDC. (Id. at

37–39.) Dr. Krug testified to the lack of information given to him before and

during the PDC, the fact that he was not allowed to have counsel at the meeting,

his attempts to provide his responses to the allegations against him, and PASSHE’s

response that the choice of Dr. Krause was at the President of Bloomsburg’s

statutory discretion, which PASSHE had no authority to disturb. (Id. at 39–52.)

Dr. Krug testified that his employment was terminated on March 21, 2018,

after Dr. Krause and HR director Jerry Reed personally delivered a letter to Dr.

Krug in his office and escorted him off campus. (Id. at 52.) The given reason for

the termination was violation of confidentiality and exposing a student record in

violation of FERPA. (Id.)

Dr. Krug testified about his emotional pain over this situation as well as the

difficulties he had in finding comparable employment after the termination of his

employment, due to a statement issued by Bloomsburg University that Dr. Krug

had violated student confidentiality. (Id. at 52–81.)

In a break in Dr. Krug’s testimony, Defendants attempted to admit the

Ballard Spahr investigative report into evidence. Defendants presented the

testimony of Suzanne Williamson, who is currently the vice president of

administration and chief of staff at Commonwealth University, which includes

campuses at Bloomsburg, Mansfield, and Lock Haven. (Id. at 116.) Williamson

testified that any documents maintained by Bloomsburg University prior to

merging with other Pennsylvania universities and becoming Commonwealth

University would be in the possession of Commonwealth University, as the

statutory successor of Bloomsburg University. (Id. at 117.) Williamson testified

that she is the de facto keeper of records for Commonwealth University,

Bloomsburg. (Id. at 117, 119.) She testified that the report at issue was generated

by an outside third party–Ballard Spahr–and was the report of an investigation

regarding the disclosure of confidential information by Dr. Jeffrey Krug and Judy

Rostucher. (Id. at 119.) Williamson testified that it was normal and common in

the course of business for Bloomsburg University to maintain documents prepared

by external parties. (Id.) Williamson testified that Ballard Spahr prepared three

different reports for this investigation, and Ballard Spahr was retained to provide

these investigation reports. (Id. at 122.) Williamson testified that she did not

believe Ballard Spahr recorded the interviews in any way. (Id. at 123.)

After Williamson’s testimony, the court did not admit the Ballard Spahr

report for multiple reasons. First, the court did not admit the report because

Williamson was not an appropriate custodian of records, given that she was not

employed at Bloomsburg University at the time the report was prepared, and she

could not testify to the foundational requirements of Federal Rule of Evidence

803(6). (Id. at 129.) The court also noted that the report was not prepared by

Bloomsburg employees, but by an outside law firm. (Id.) The court additionally

excluded the document because the preparers of the document did not have

personal knowledge of the matters in the report, and it was not established that it

was a regular practice of Bloomsburg to have investigative reports prepared by

outside firms. (Id.) The court also held that the document was prepared for the

purpose of an investigation and litigation of a personnel issue. (Id. at 130.)

Finally, the court noted that the credibility of the report had already been placed at

issue by testimony thus far at trial, as well as the issue of the report containing

hearsay within hearsay, for which there would need to be independent exceptions

to admit certain statements. (Id.)

Mr. John Braganini testified via recorded deposition testimony. (Id. at 198.)

Mr. Braganini testified that information contained in the Ballard Spahr report

regarding his willingness to give a gift was inaccurate. (Doc. 136-1, p. 8.) The

Ballard Spahr report relayed that Mr. Braganini decided not to give a gift after

hearing what occurred with Dr. Krug and Dr. Hanna. However, Braganini testified

that he actually never intended to give the gift that was solicited and, at that time,

he had not heard about what was happening with Dr. Krug and Dr. Hanna. (Id.)

Mr. Andrew Lehman, former chief counsel for PASSHE, testified that, after

a PASSHE investigation, it was recommended that the individuals who spread

rumors regarding Dr. Krug and Judy Rostucher should have pre-disciplinary

conferences. (Doc. 198, p. 206.) Mr. Lehman was also the person responsible for

hiring Ballard Spahr to investigate whether Dr. Krug had breached confidentiality

rules in discussing Ms. Crossley’s sexual harassment allegation. (Id. at 216.)

Lehman described the process of how he did so, and he directed Ballard Spahr to

only investigate speech that was not a matter of public concern. (Id. at 219.)

Lehman also testified that Dr. Hanna had been walled off from Dr. Krug’s

disciplinary proceedings and that Dr. Krause was chosen because he was next in

line, despite the presence of disagreements or “allegations of bias” against Dr.

Krause. (Id. at 224.) Dr. Lehman testified that Dr. Hanna was advised to recuse

himself from this investigation and appoint another administrator to handle it. (Id.

at 227.) Dr. Lehman testified that it was not common or an acceptable practice

within PASSHE to draft a termination letter in advance of a PDC. (Doc. 199, p.

19.) Lehman also testified that it was not a common or acceptable practice to pre-

draft letters to university constituencies regarding Dr. Krug’s employment

termination prior to the PDC. (Id. at 22, 23.)

Mr. Andrew Verzilli, qualified as an expert in economics, testified as to the

back pay and front pay to which Dr. Krug was entitled, totaling $1,800,549 in back

pay and $1,453,852 in front pay. (Id. at 40–56.)

Ms. Suzanne Williamson testified that she assisted Dr. Krause in drafting

Dr. Krug’s termination letter prior to the PDC, as well as reviewing the email to

four university constituencies. (Id. at 72–74.) Williamson also testified that it is

an acceptable practice to start drafting discipline letters following receipt of an

investigation report. (Id. at 72.) Mr. Jerry Reed, who was then the director of

human resources, testified that he had prepared the letter of termination for Dr.

Krug with input from PASSHE. (Id. at 118.)

Dr. James Krause testified next. Dr. Krause testified that he became aware

of Angela Crossley, in his opinion, gossiping about Dr. Hanna, and he thought that

was inappropriate. (Id. at 190.) Dr. Krause testified that Dr. Hanna appointed Dr.

Krause to be the arbiter of Dr. Krug’s case. (Id. at 194.) Krause also testified that

he reviewed the report with attorneys from Ballard Spahr. (Id. at 223.) Dr. Krause

testified he was working with Suzanne Williamson and PASSHE, and PASSHE

was the entity that instructed him to provide only a summary report to Dr. Krug.

(Id. at 236.) Dr. Krause testified that he spoke with potential replacements for Dr.

Krug as early as March 8. (Doc. 200, p. 22.) Krause testified that he relied on the

facts set forth in the Ballard Spahr report as well as Dr. Krug’s verbal testimony

and written responses. (Id. at 12.) Dr. Krause testified that he notified Dr. Hanna

on the morning of March 21, 2018, that Krause has decided to terminate Dr.

Krug’s employment. (Id. at 27.) After Dr. Krause’s testimony, Plaintiff rested.

C. Defendants’ Evidence

As part of Defendants’ case in chief, Dr. Hanna testified to his version of

what happened with Ms. Crossley. (Doc. 200, p. 46.) Dr. Hanna testified that

when Ms. Crossley was crying in his office, he sat next to her, placed his hand on

her shoulder, kissed her, and said she reminded him of one of his sisters. (Id.) Dr.

Hanna testified that he was made aware of allegations made against him by Ms.

Crossley on or about November 15, 2017, by PASSHE counsel Andrew Lehman.

(Id. at 54.) It was at this time that Mr. Lehman advised that PASSHE would

handle the situation, and that Dr. Hanna was not to do anything about it. (Id.) Ms.

Crossley was immediately transferred out of Dr. Hanna’s office, and he rarely saw

her afterward. (Id. at 55.) Dr. Hanna testified to the PDC he went through

regarding Ms. Crossley’s allegations and how he was allowed an attorney to

respond to the report and an attorney was present during the meeting. (Id. at 57.)

Dr. Hanna testified that he became aware of potential confidential disclosures

sometime around the New Year in 2018 after Mr. Lehman called him and asked

him to deputize someone to investigate the disclosures. (Id. at 61, 62.)

As part of Defendants’ case in chief, Dr. Krause testified again, beginning

with the contours of his relationship with Dr. Krug prior to the incidents at issue in

this case. Mainly, Dr. Krause testified to disagreements between himself and Dr.

Krug relating to vacation requests, appointment of an interim dean in the business

school, and minor failures to comply with Dr. Krause’s administrative requests.

(Id. at 105–23.) Dr. Krause then testified that Mr. Lehman informed him of the

investigation into confidential disclosures, and that Dr. Hanna was going to appoint

Dr. Krause to be the arbiter of the situation, but that it must not be discussed with

Dr. Hanna. (Id. at 128.) At this point, the Ballard Spahr report was admitted, over

Dr. Krug’s objection, for the limited purpose of showing the information Dr.

Krause relied on when deciding the disciplinary matter regarding Dr. Krug, not for

the truth of the contents of the report. (Id. at 133–37.) Dr. Krause then testified to

the contents of the Ballard Spahr report, including the identified disclosures and

the conclusions reached by the Ballard Spahr attorneys as to whether those

disclosures were appropriate. (Id. at 141–47.)

Dr. Krause testified that at the PDC, Dr. Krug addressed things outside of

the Ballard Spahr report, was rambling, contradictory, and blamed things on others.

(Id. at 151–61.) During cross-examination of Dr. Krause, Dr. Krug’s counsel

asked about the inconsistencies between the Ballard Spahr report and the evidence

elicited at trial, including Ballard Spahr not interviewing key witnesses, differences

between witnesses’ testimony, and inaccuracies in witnesses’ testimony. (Id. at

167–83.) Dr. Krause testified that he believed the Ballard Spahr report had all the

information he needed to make the decision, despite the lack of interviews from

Dr. Alan Krug, Angela Johnston, JoAnn Zeigler, and Angela Crossley. (Id. at

199.) Dr. Krause testified that he drafted a disciplinary letter that summarized the

key parts of the Ballard Spahr report the day before the PDC, but that the letter did

not contain any conclusions as to appropriate discipline. (Id. at 209–10.)

Defendants’ final witness was Dr. Robert Wislock, the Director of

Accommodations for Students with Disabilities and Equity. (Id. at 226.) Dr.

Wislock testified that he discussed confidentiality with Dr. Krug, Judy Rostucher,

and Angela Crossley when they met with him, although all three of those

individuals testified that he did not do so. (Id. at 255.)

D. Rule 50 Motions

At the close of evidence, but prior to submitting the matter to the jury,

Defendants moved for dismissal of PASSHE based on there being no evidence

showing personal involvement of PASSHE. (Doc. 201, p. 8.) Defendants contend

there was only evidence showing that PASSHE gave legal advice to its client. (Id.)

Defendants also moved for dismissal of Dr. Hanna based on lack of evidence of

personal involvement because the evidence presented was only conjecture and

speculation that Dr. Hanna was involved. (Id. at 9.) Defendants moved for

dismissal of the whistleblower claim because, based on McClain v. Mann, 2008

WL 975059, and Defendants’ contention that bringing a whistleblower complaint

to someone who is not the appropriate authority causes a whistleblower claim to

fail. (Id.) Defendants further argued that it was not established that Dr. Krug

raised the financial wrongdoing allegation to the appropriate authority. (Id. at 10.)

Defendants argued that conspiracy as a theory of liability is insufficient when the

individuals involved in the conspiracy are members of the same agency, here, Dr.

Hanna and Dr. Krause, relying on Piazza v. Young, 403 F.Supp. 3d 421, 440 (M.D.

Pa. 2019). (Id. at 10, 11.) Regarding the constitutionality of the Bloomsburg

discrimination policy, Defendants argued that, “even if the policy were to be

declared unconstitutional now six years after the fact, that would essentially be

giving the Defendants qualified immunity on that issue because they followed the

policy that was legal at the time.” (Id. at 20, 21.)

Dr. Krug responded that PASSHE was involved because Suzanne

Williamson, PASSHE’s employee, participated in drafting the termination letter

and statement with Dr. Krause, PASSHE retained Ballard Spahr to investigate and

write a report, and, Ballard Spahr, as PASSHE’s agent, made conscious choices of

who to interview and who not to interview, and that PASSHE directed Dr. Hanna

to appoint Dr. Krause. (Id. at 11, 12.) Dr. Krug further responded that Dr. Hanna

was personally involved because he appointed Krause, and also pointed to the

suspect timing between the March 9 PDC and the letter stating Dr. Krug was an at-

will employee, the suspect timing of Dr. Krug’s termination date being the same

date when Dr. Hanna was “exonerated” by PASSHE, and the suspect timing of Dr.

Hanna sending the email to the constituencies four minutes after receiving word

that Dr. Krug was terminated. (Id. at 12, 13.) Dr. Krug also responded that telling

other people does not negate a whistleblower claim when the appropriate authority

is also told, and Dr. Wislock was the appropriate authority for the financial

wrongdoing allegation, as well as the PASSHE investigators that Dr. Krug told.

(Id. at 13, 14.) Finally, Plaintiff responded that PASSHE and Bloomsburg

University are not the same entity and there could be a conspiracy between

employees of the two organizations. (Id. at 14.)

The court denied Defendants’ motion without prejudice and with leave to

renew after the verdict. (Id. at 16.) Regarding the argument about conspiracy, the

court held there was no standalone conspiracy claim to dismiss, and the issue of

conspiracy would be discussed further at the charge conference. (Id.)

Dr. Krug also made a Rule 50 motion, which was also denied without

prejudice with leave to renew the motion after the verdict. (Id. at 17–19.) Dr.

Krug did not file a renewed motion, and thus, the court will not outline the Rule 50

arguments here.

After closing arguments and jury instructions, which have not been

challenged here, the jury returned a verdict in favor of Dr. Krug on all claims, and

awarded him back pay, front pay, compensatory, and punitive damages. (Doc.

176.) The court affirmed the jury’s advisory verdict regarding back pay and front

pay, and the clerk entered judgment on August 21, 2024. (Docs. 181, 182.)

Thereafter, on August 30, 2024, Plaintiff filed a motion to alter judgment

and a motion for attorney’s fees. (Docs. 183, 185.) The briefing for the motion for

attorney’s fees was stayed pending the resolution of anticipated motions for

judgment as a matter of law and new trial. (Doc. 190.) Thereafter, Defendants

filed the instant motions. (Doc. 191.) The motions have been fully briefed and are

ripe for disposition.

JURISDICTION AND VENUE

The court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and

1343 because Dr. Krug brought claims under federal statutes, namely 42 U.S.C. §

1983, 20 U.S.C. § 1681(a), and 42 U.S.C. § 2000e. The court has supplemental

jurisdiction over the Pennsylvania Whistleblower Law and PHRA claims under 28

U.S.C. § 1367 because they are related to the federal claims. Venue is proper in

the Middle District of Pennsylvania under 28 U.S.C. § 1391(b) because all acts or

omissions giving rise to the claim occurred with the Middle District.

STANDARDS OF REVIEW

A. Rule 50(b)–Renewed Motion for Judgment as a Matter of Law

Federal Rule of Civil Procedure 50(b) provides: “If the court does not grant

a motion for judgment as a matter of law made under Rule 50(a), the court is

considered to have submitted the action to the jury subject to the court’s later

deciding the legal questions raised by the motion.” In ruling on a motion under

Rule 50(b), the court may “allow judgment on the verdict,” “order a new trial,” or

“direct the entry of judgment as a matter of law.” FED. R. CIV. P. 50(b)(1)–(3).

A court should “sparingly” enter judgment as a matter of law and, “only if,

viewing the evidence in the light most favorable to the nonmovant and giving it the

advantage of every fair and reasonable inference, there is insufficient evidence

from which a jury reasonably could find liability.” Marra v. Phila. Housing Auth.,

497 F.3d 286, 300 (3d Cir. 2007) (quoting CGB Occupational Therapy, Inc. v.

RHA Health Servs. Inc., 357 F.3d 375, 383 (3d Cir. 2004); and Moyer v. United

Dominion Indus., Inc., 473 F.3d 532, 545 n.8 (3d Cir. 2007)). The court must

“refrain from weighing the evidence, determining the credibility of witnesses, or

substituting [its] own version of the facts for that of the jury.” Id. (citing Lightning

Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).

B. Rule 59–Motion for a New Trial

Federal Rule of Civil Procedure 59(a)(1)(A) provides: “[t]he court may, on

motion, grant a new trial on all or some of the issues–and to any party–as follows:

after a jury trial, for any reason for which a new trial has heretofore been granted in

an action at law in federal court[.]” FED. R. CIV. P. 59(a)(1)(A).

The decision to grant a new trial is “confided almost entirely to the exercise

of discretion on the part of the trial court.” Allied Chemical Corp. v. Daiflon, Inc.,

449 U.S. 33, 36 (1980). The scope of that discretion is determined by reference to

the basis for the motion. If the motion is made on the basis of an evidentiary ruling

or prejudicial statements by counsel, the district court has broad discretion on

whether to grant or deny the motion and disturb the jury’s verdict. Klein v.

Hollings, 922 F.2d 1285, 1289–90 (3d Cir. 1993). “Admission of evidence is an

abuse of discretion if ‘the district court’s action was arbitrary, fanciful or clearly

unreasonable[.]” Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 519

(3d Cir. 2003).

Conversely, when the motion is based on the weight of the evidence being

against the verdict, the district court’s discretion is more limited. Klein, 922 F.2d

at 1290. “A new trial should be granted only where the great weight of the

evidence cuts against the verdict and ‘where a miscarriage of justice would result if

the verdict were to stand.’” Springer v. Henry, 435 F.3d 268, 274 (3d Cir. 2006)

(quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir.

1996)).

Further, Federal Rule of Civil Procedure 61 provides:

Unless justice requires otherwise, no error in admitting or excluding

evidence–or any other error by the court or a party–is ground for

granting a new trial, for setting aside a verdict, or for vacating,

modifying, or otherwise disturbing a judgment or order. At every stage

of the proceeding, the court must disregard all errors and defects that

do not affect any party’s substantial rights.

FED. R. CIV. P. 61. Thus, a new trial should only be granted when a party’s

substantial rights have been affected by an error. The Third Circuit has held that in

considering evidentiary rulings in a civil suit, a nonconstitutional error is a

harmless error “if it is highly probable that the error did not affect the outcome of

the case.” Glass v. Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994).

DISCUSSION

Defendants move both for judgment as a matter of law and for a new trial.

The court will first decide the renewed motion for judgment as a matter of law and

then decide the motion for a new trial.

A. Renewed Motion for Judgment as a Matter of Law

1. Personal Involvement of Dr. Hanna

Defendants argue that Dr. Hanna is entitled to judgment as a matter of law

because there was no evidence that he was personally involved in retaliatory

conduct regarding the § 1983 claims. (Doc. 205, p. 14.) Specifically, Dr. Hanna

argues that there was no evidence that he was personally involved in terminating

Dr. Krug’s employment or that he directed Dr. Krause to make a certain decision,

and the testimony showed that Dr. Hanna was “walled off” from any decision

regarding Dr. Krug’s employment. (Id. at 15–18.)

Conversely, Dr. Krug points to the following trial evidence to support Dr.

Hanna’s personal involvement in retaliation against Dr. Krug: (1) the timing of Dr.

Hanna’s letter stating Dr. Krug was at will and Dr. Krug’s PDC being on the same

day (Doc. 206, p. 15); (2) the timing of the date of the termination of Dr. Krug’s

employment and the decision regarding Dr. Hanna’s discipline (Id); (3) testimony

that Dr. Hanna appointed Dr. Krause as arbiter of Dr. Krug’s disciplinary matter

(Id); (4) the testimony and evidence that Dr. Hanna had been waiting for the email

regarding the termination of Dr. Krug’s employment and sent his own email to key

constituencies within four minutes of receiving it (Id); (5) and Dr. Hanna’s

participation in drafting and distributing a public statement regarding Dr. Krug’s

disclosures after the termination of Dr. Krug’s employment (Id. at 16). Dr. Krug

relies on the standard for deciding renewed judgments as a matter of law, and notes

that “all disputes of fact and inferences must be decided in Dr. Krug’s favor as the

verdict winner, [and] any evidence to the contrary is irrelevant for purposes of

defendants’ post-verdict motion.” (Id.) (citing Lightning Lube, Inc., 4 F.3d at

1166.). Plaintiff also points the court to the case Kengerski v. Harper, 23-1926,

2024 WL 4432081 (3d Cir. Oct. 7, 2024), in which the Third Circuit upheld a

verdict against a prison warden in which there was circumstantial evidence

regarding the warden’s knowledge. (Doc. 206, pp. 17, 18.)

In reply, Defendants discount the evidence presented by Plaintiff, arguing

that “[t]he concept that a person can both retaliate against an individual while

simultaneously giv[ing] that individual a raise does not make logical sense and

certainly does not rise to the level of circumstantial evidence of retaliation.” (Doc.

208, p. 3.) Defendants further argue that the timing of Dr. Hanna emailing the

trustees about the termination of Dr. Krug’s employment cannot support a verdict

because “the mere fact that he notified the Council of Trustees upon receiving the

email, does not demonstrate that he participated in the decision-making process.”

(Id. at 4.)

The court begins by noting that Dr. Hanna is only moving for judgment as a

matter of law with respect to the § 1983 claims, as those are the only claims for

which Dr. Hanna provides a standard. (Doc. 205, pp. 14, 15.) Accordingly, the

court will only consider whether there is the minimum quantum of evidence and

will draw all inferences in the light most favorable to the verdict winner to

determine whether Dr. Hanna was personally involved in conduct giving rise to the

§ 1983 claims.

To show that a defendant was personally involved in a constitutional

violation under § 1983, there must be a showing of personal direction,

“participation in[,] or actual knowledge of and acquiescence in the wrongful

conduct.” Rode v. Deallarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988);

Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d 210, 222 (3d Cir. 2015). Liability

cannot be premised solely on a theory of respondeat superior. Evancho v. Fisher,

423 F.3d 347, 353 (3d Cir. 2005).

As noted by Dr. Krug, the trial evidence showed that Dr. Hanna appointed

Dr. Krause to be the “arbiter” of Dr. Krug’s employment status. (Doc. 200, p.

194.) While Dr. Hanna testified that he did not know what he was appointing Dr.

Krause for, Dr. Krug also presented the circumstantial evidence regarding the

coinciding dates of Dr. Hanna’s letter stating Dr. Krug was an at-will employee

and Dr. Krug’s PDC. ( Pl’s Exhs. 50, 134.) Additionally, there was evidence that

Dr. Hanna was waiting for the email regarding Dr. Krug’s termination. (Pl’s Exh.

133.) The jury presumably adopted Dr. Krug’s preferred inference that the timing

of these events was not mere coincidence. For the deprivation of liberty interest

claim, Dr. Krug also presented evidence that Dr. Hanna participated in drafting a

statement, which was later used against Dr. Krug in unemployment compensation

proceedings. (Pl’s Exh. 139.) The court must adopt all inferences in favor of Dr.

Krug as verdict winner. This evidence, and adopting all inferences in favor of Dr.

Krug, is sufficient for the jury to have found that Dr. Hanna was personally

involved in the § 1983 First Amendment retaliation and liberty and property

interest deprivation claims against Dr. Krug. Accordingly, the motion is denied.

2. Pennsylvania Whistleblower Law

Defendants argue they are all entitled to judgment as a matter of law on the

Pennsylvania Whistleblower claim because “an alleged ‘report’ made to members

of the public or co-workers ‘serves as a death knell’ to a Whistleblower Act

claim[,]” specifically relying on the case McClain v. Munn, 2008 WL 975059, at

*4 (W.D. Pa. 2008). (Doc. 205, p. 19.) Dr. Krug discounts Defendants’ reliance

on McClain and points to the fact that he helped Ms. Crossley report to

Bloomsburg University’s Title IX Office, which was the proper authority as Ms.

Crossley’s employer. (Doc. 206, p. 20.)

The Pennsylvania Whistleblower Law provides that:

No employer may discharge, threaten or otherwise discriminate or

retaliate against an employee regarding the employee’s compensation,

terms, conditions, location or privileges of employment because the

employee or a person acting on behalf of the employee makes a good

faith report or is about to report, verbally or in writing, to the employer

or appropriate authority an instance of wrongdoing or waste by a public

body or an instance of waste by any other employer as defined in this

act.

43 P.S. § 1423(a). Succeeding on a Whistleblower Law claim requires a plaintiff

to “show not only that he filed a good faith report of wrongdoing or waste, [but] he

must also establish by concrete facts or surrounding circumstances that the report

led to the termination of his employment.” Cipriani v. Lycoming Cnty. Housing

Auth., 177 F.Supp.2d 303, 329 (M.D. Pa. 2001).

Defendants’ reliance on McClain is misplaced. The court in McClain held

that reporting solely to members of the public or co-workers is a “death knell” to a

Whistleblower Act claim. Id. at *4. In McClain, the court, at the motion to

dismiss procedural posture, decided that plaintiff had failed to plead a

Whistleblower Act claim because “McClain does not allege that he reported the

alleged [misconduct] to his supervisor, a superior, or any agent authorized to take

action on behalf of the defendant Township.” Id. Thus,“[p]laintiff’s Second

Amended Complaint simply avers that he told ‘coworkers’ and ‘members of the

public’ about the defendants’ alleged internet gambling. This omission alone

serves as a death-knell to his Whistleblower status.” Id. at *4. The conclusion

reached by the Western District of Pennsylvania makes sense because failing to

plead an element of a case would certainly be a “death knell” to a case. However,

interpreting this holding to mean that reporting to a someone who is not an

appropriate authority, while also reporting to an appropriate authority, is

unwarranted.

Here, as explained by Dr. Krug and not contested by Defendants,

Bloomsburg University is a “public body,” making it an “employer” under the

Whistleblower Law, and a proper place to make an allegation of waste or

wrongdoing. Id. §§ 1422, 1423(a). Dr. Krug physically went with Angela

Crossley to Dr. Wislock’s office, the University’s Title IX Coordinator in charge

of Title IX investigations, to assist her in making a good faith report of Dr.

Hanna’s alleged sexual harassment. (Doc. 197, pp. 235–50; Doc. 200, p. 228.)

This satisfies the Pennsylvania Whistleblower Law’s “employer” or “appropriate

authority” requirement. There has not been case law presented to the court

establishing that the fact that Dr. Krug also mentioned the harassment to family

members is relevant or fatal to this claim. Accordingly, the motion is denied.

3. Qualified Immunity Regarding Dr. Krause

Defendants argue that Dr. Krause is entitled to qualified immunity regarding

the § 1983 claims because he relied on the Ballard Spahr report to reach his

decision regarding Dr. Krug’s employment, and “it cannot be said that it is ‘clearly

established’ that it would be illegal, or even inappropriate, to do so.” (Doc. 205, p.

23.) Defendants argue that there was no evidence to contradict Dr. Krause’s

reliance on the report, and Plaintiff only “offer[ed] what is essentially a conspiracy

theory that this report was a sham, either purposely or out of incompetence or

sloth, or perhaps because Defendant Krause used it as an excuse to fire Plaintiff in

retaliation for assisting in reporting a sexual harassment claim against the

president.” (Id. at 22, 23.)

Dr. Krug argues that Defendants waived this argument because they failed to

raise it in their 50(a) motion, and because it is too vague for consideration. (Doc.

206, pp. 24, 25.) Dr. Krug also argues that Dr. Krause is not entitled to qualified

immunity regarding the § 1983 claims because he does not argue the law, but

rather, recounts his version of the facts, which the jury rejected. (Id. at 26.)

Defendants respond that qualified immunity can be raised at any time,

including after the conclusion of trial, and argue that Plaintiff has not been

prejudiced by the failure to raise the defense sooner. (Doc. 208, p. 5) (relying on

Sharp v. Johnson, 669 F.3d 144, 158 (3d Cir. 2012)). Defendants also assert that

their argument is not vague; rather, it is clear that Dr. Krause “relied on a report

from a law firm and accepted its conclusions, as he is not an attorney. There is no

clearly established law that indicates it is a violation of the law or Dr. Krug’s

rights–let alone inappropriate–for him to do so.” (Id. at 6.) Defendants also

challenge Plaintiff’s “conclusion”5 that Dr. Krause is only raising this defense

regarding the § 1983 claim. Defendants counter “that Defendant Krause accepted

the legal conclusions of an outside law firm, and there is no legal consensus that he

should not have done so, even if that report was erroneous in some way, either

factually or legally.” (Id. at 6.)

Preliminarily, the court will not decide this issue on the basis of waiver.

Both parties appear to be correct: failure to raise an argument in a Rule 50(a)

motion forfeits consideration of that argument on a Rule 50(b) motion, but the

Third Circuit has also plainly held that an affirmative defense, such as qualified

immunity, may be raised for the first time after trial if plaintiff suffers no

prejudice. Williams v. Runyon, 130 F.3d 568, 571–72 (3d Cir. 1997); Sharp, 669

5 Defendants state it “is not entirely clear” why Plaintiff concluded that Dr. Krause only raises

qualified immunity regarding claims under § 1983. (Doc. 208, p. 6.) However, it is clear to the

court why Plaintiff reached this conclusion: in their opening brief, Defendants only make

arguments regarding the § 1983 claims. (Doc. 205, p. 21.) (“In this case, constitutional claims

were brought against Defendant Krause pursuant to § 1983.”) In their motion, Defendants did

move for judgment as a matter of law in favor of Defendant Krause on all claims, however,

Defendants failed to address all claims in their brief. Accordingly, because Defendant

specifically addresses the § 1983 claims, the court will only examine qualified immunity in the

context of those claims.

F.3d at 158; see also Eddy v. Virgin Islands Water & Power Auth., 256 F.3d 204,

209 (3d Cir. 2001). Neither party has presented case law exactly on point with the

factual circumstances of this case,6 and the court’s independent research has failed

to produce any. Thus, in the absence of binding precedent squarely on point, the

court will not resolve this issue on the basis of waiver, but will address the merits.

The doctrine of qualified immunity recognizes that despite their participation

in constitutionally impermissible conduct, government officials “may nevertheless

be shielded from liability for civil damages if their actions did not violate ‘clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “protects government

officials ‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow, 457 U.S. at 818). The doctrine “protects all but the plainly incompetent or

6 The court notes that the procedural facts of Sharp are different than the procedural facts here.

The defendants in Sharp properly pleaded the affirmative defense of qualified immunity, failed

to raise it at summary judgment, and then raised it again at trial. Sharp, 669 F.3d at 158–59.

The Third Circuit held, on those procedural facts, that defendants had not waived the affirmative

defense. Id. (“Here, Defendants, who pled qualified immunity as an affirmative defense, placed

Sharp on notice of their intent to raise that defense at trial.”) The situation in this case is

different. Defendants properly pleaded the defense in their answer and also argued the issue on

summary judgment, but failed to raise it at any time during the trial, including during their Rule

50(a) motion. Thus, Defendants did not raise this issue at trial, as the defendants in Sharp did.

those who knowingly violate the law.” Kisela v. Hughes, 584 U.S. 100, 104

(2018) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). A defendant asserting

that he is entitled to qualified immunity has the burden to prove that the doctrine

applies. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014).

Courts follow a two-pronged test to determine whether qualified immunity

applies. Pearson, 555 U.S. at 232. The court may exercise its discretion in

deciding “which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.”

Pearson, 555 U.S. at 236. First, the court must determine whether the defendants

violated the plaintiff’s statutory or constitutional right. District of Columbia v.

Wesby, 583 U.S. 48, 63 (2018) (citing Reichle v. Howards, 566 U.S. 658, 664

(2012)). Although Defendants do not address this element at all, the jury has

decided that Defendant Krause violated Dr. Krug’s First Amendment right to be

free from retaliation for his speech as well as Dr. Krug’s Fourteenth Amendment

due process property right in his employment and his liberty interest in his

reputation. (Doc. 176.)

Second, the court must determine whether the right at issue was clearly

established at the time of the violation. Id. (citing Reichle, 566 U.S. at 664). “A

right is ‘clearly established’ . . . only if ‘the contours of the right’ are ‘sufficiently

clear that a reasonable official would understand that what he is doing violates that

right.’” Larsen v. Senate of Commw. of. Pa., 154 F.3d 82, 87 (3d Cir. 1998)

(quoting Anderson v. Creighton, 483 U.S. 635, 650 (1982)). Defining the contours

of the right requires a high degree of specificity, and “[a] rule is too general if the

unlawfulness of the [official’s] conduct ‘does not follow immediately from the

conclusion that [the rule] was firmly established.’” Wesby, 583 U.S. at 63 (quoting

Anderson, 483 U.S. at 641.) Thus, “so long as an official reasonably believes that

his conduct complies with the law, qualified immunity will shield that official from

liability.” Adamo v. Dillon, 900 F. Supp. 2d 499, 509 (M.D. Pa. 2012), aff’d, 539

F. App’x 51 (3d Cir. 2013).

Defendants do not make any argument regarding how clearly Dr. Krug’s

rights were defined at the time when Dr. Krause decided to terminate Dr. Krug’s

employment. Defendants do not even specify whether they are discussing Dr.

Krug’s First Amendment or Fourteenth Amendment rights. Defendants focus

instead on Dr. Krause’s right to rely on an investigative report. (Doc. 205, pp. 22,

23; Doc. 208, p. 6.) This does not carry their burden of showing that Dr. Krug’s

rights were not clearly established at the time of the constitutional violation such

that a reasonable official would not understand that what he was doing violated the

right.

In making the argument that Dr. Krug’s rights were not clearly established

because, in the situation faced by Dr. Krause, a reasonable official would rely on

the investigative report, Defendants do not cite any case law in support of this

position. The court has found analogous case law in which the Third Circuit held

that “a police officer who relies in good faith on a prosecutor’s legal opinion that

[an] arrest is warranted under the law is presumptively entitled to qualified

immunity from Fourth Amendment claims premised on a lack of probable cause.”

Kelly v. Borough of Carlisle, 622 F.3d 248, 255–56 (3d Cir 2010). In Kelly, the

Third Circuit explained “[t]hat reliance [on a legal opinion] must itself be

objectively reasonable, however, because ‘a wave of the prosecutor’s wand cannot

magically transform an unreasonable probable cause determination into a

reasonable one.’” Id. at 256. Additionally, “a plaintiff may rebut this presumption

by showing that, under all the factual and legal circumstances surrounding the

arrest, a reasonable officer would not have relied on the prosecutor’s advice.” Id.

The court finds that this case provides a framework for deciding whether Dr.

Krause’s reliance on the report was reasonable. Accordingly, the court will look to

the facts and circumstances surrounding Dr. Krause’s decision to terminate Dr.

Krug’s employment and whether it would be clear to a reasonable official in Dr.

Krause’s position that he could not terminate Dr. Krug’s employment without

violating Dr. Krug’s First or Fourteenth Amendment rights. See Springer v.

Henry, 435 F.3d 268, 280 (3d Cir. 2006).

Taking the facts in the light most favorable to the plaintiff, a reasonable

official in Dr. Krause’s situation should have known that terminating Dr. Krug’s

employment in these circumstances would violate Dr. Krug’s First and Fourteenth

Amendment rights. There was evidence presented that Dr. Krause and Ms.

Williamson drafted Dr. Krug’s termination letter and statement to the

constituencies prior to his PDC. And there was testimony from Mr. Lehman that

this is not a common or accepted practice within PASSHE. (Plaintiff’s Exhs. 76–

78; Doc. 199, p. 19–23.) Regarding whether reliance on the Ballard Spahr report

was appropriate, there is evidence there was no opportunity for Dr. Krug to make

his objections to the Ballard Spahr report prior to the PDC and that Dr. Krug made

known during the PDC that many of the allegations in the Ballard Spahr report

were false or inaccurate. (Doc. 198, p. 28; Pl’s Exh 65.) There was also testimony

that Dr. Krug made Dr. Krause aware that Dr. Krug believed Dr. Krause was

biased. (Doc. 198, p. 28.) These facts, with all inferences taken in favor of Dr.

Krug as the verdict winner, support a finding that it was not reasonable to

determine the outcome of the hearing prior to the hearing, rely on a report with

noted inaccuracies, and terminate Dr. Krug’s employment due to him speaking on

a matter of public concern.7 Accordingly, Defendant Krause was not entitled to

qualified immunity and thus, is not entitled to judgment as a matter of law.

4. Personal Involvement of PASSHE

Defendants argue there is no evidence showing involvement of PASSHE in

retaliatory conduct because: (1) it retained an outside law firm to conduct an

investigation; (2) it provided legal and labor relations advice to Bloomsburg

University and its personnel; (3) Dr. Krause made the decision to terminate

Plaintiff; and (4) there was no evidence presented to show PASSHE or its

personnel or representative were involved in unlawful retaliation against Plaintiff.

(Doc. 205, p. 24.)

Dr. Krug points to the following evidence to support PASSHE’s

involvement in the termination of his employment. First, he points to the

testimony from Dr. Krause and Suzanne Williamson, employed by PASSHE at the

time of the events in question, regarding drafting a termination letter prior to Dr.

Krug’s PDC. (Doc. 206, p. 9, 10.) Plaintiff notes that the jury was free to

disregard Krause and Williamson’s explanations of why they drafted this letter

prior to the termination of Dr. Krug’s employment if they found them

7 In its memorandum on summary judgment, this court previously held that “Dr. Krug’s speech

relating to allegations of sexual harassment against a university’s president are a matter of public

concern.” (Doc. 113, p. 25.) Specifically, the court held that “it is clear that Dr. Krug’s speech

in this case can fairly be considered as relating to a matter of concern to the community and

discloses a public official’s misfeasance.” (Id.)(citing Azzaro v. Cnty. of Allegheny, 110 F.3d

968, 978 (3d Cir. 1997)).

unbelievable. (Id. at 10.) Second, he points to Krause’s testimony that he was the

“arbiter” of Dr. Krug’s discipline but that he worked in collaboration with

PASSHE. (Id. at 10.) Third, Dr. Krug points to emails between Krause and

Williamson drafting the message to the University’s key constituencies, which

were drafted prior to Dr. Krug’s PDC. (Id.) Fourth, he points to the aligned dates

of the termination of Dr. Krug’s employment and the decision of Dr. Hanna’s

discipline. (Id. at 11.) Fifth, he points to the fact that PASSHE retained Ballard

Spahr to investigate Dr. Krug’s alleged disclosures. (Id.) Sixth, Dr. Krug notes

that Ballard Spahr, an agent of PASSHE, communicated with Dr. Krause prior to

the PDC. (Id.) Seventh, Dr. Krug relies upon Defendants’ decision not to present

any attorneys from Ballard Spahr or the witnesses that Ballard Spahr interviewed

at trial. (Id.) Eighth, he points to the Ballard Spahr report containing falsehoods

and misrepresenting witness testimony. (Id. at 12.) Ninth, Dr. Krug relies upon

the correspondence between Dr. Krug and Mr. Lehman in which Dr. Krug voiced

his complaints about the process he received, and Mr. Lehman’s reply that

PASSHE had no authority to interfere with the president’s decision of who should

handle Dr. Krug’s matter. (Id.) Tenth, Dr. Krug points to the fact that PASSHE

employee Lisa Sanno actually participated in the PDC. (Id.) And finally, Dr. Krug

relies upon Dr. Hanna’s testimony at trial that PASSHE handled both Dr. Hanna’s

PDC and Dr. Krug’s PDC. (Doc. 200, p. 85.)

As Plaintiff has laid out, there is ample evidence showing that PASSHE was

personally involved in the termination of Dr. Krug’s employment. Accordingly,

the renewed motion for judgment as a matter of law is denied on this ground.

B. Motion for New Trial

1. 404(b) Evidence Against Dr. Hanna

Defendants argue that evidence regarding allegations against Dr. Hanna at

two prior universities was improperly admitted character evidence under 404(b),

because it confused the issue of retaliation in this case with whether Dr. Hanna

should have been hired or whether PASSHE supported him. (Doc. 205, p. 26.)

Defendants specifically challenge the admission of an anonymous email and two

questions posed by plaintiff’s counsel on cross-examination, which were not

objected to at trial. (Id. at 27.) Defendants argue that defense counsel “had no

choice but to address these allegations to clarify the record[.]” (Id. at 28.)

Defendants argue “[t]hese unsubstantiated claims were wholly irrelevant to the

retaliation claim. They served no legitimate purpose, were highly prejudicial, and

clearly influenced the jury’s opinion of Dr. Hanna, as reflected in the punitive

damages awarded against him.” (Id.)

Dr. Krug responds that there was no objection at trial to questioning or

documents about Dr. Hanna’s time at Kutztown University, and accordingly, that

this argument is waived. (Doc. 206, pp. 28, 29.) Turning to the anonymous email

regarding Dr. Hanna’s time at Delaware Valley University, Dr. Krug notes that the

email was admitted for the limited purpose of showing that “Bloomsburg

University and PASSHE knew about DVU’s faculty’s concerns about how Hanna

treated women but decided to hire him anyway[,]” and this purpose was proper.

(Id. at 30.) Dr. Krug concludes that a full cross-examination of Dr. Hanna was

proper because the Defendants opened the door to evidence regarding whether Dr.

Hanna was “a sexual harasser/discriminator[.] Or [whether] Hanna [was] merely

someone who viewed Ms. Crossley–as Hanna testified and as his counsel

represented in her opening statement–as like his sister. Defendants cannot open a

door and then object to evidence they put at issue.” (Id. at 31.)

A new trial will not be granted because of the evidence, both through

questions and documents, of Dr. Hanna’s time at Kutztown University because

Defendants failed to object to the admission of the evidence at the time of trial.

Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 116 (3d Cir. 1992). There is an

exception to this waiver rule: an issue may be reviewed despite a failure to object

when “exceptional circumstances” including “the public interest requires that the

new issue be heard on appeal or when manifest injustice would result from the

failure to consider the new issue, or where it is apparent that counsel failed to

object to a fundamental and highly prejudicial error resulting in a miscarriage of

justice.” Id. However, Defendants do not argue any of these exceptional

circumstances, nor do they address their failure to object to any questioning

regarding Dr. Hanna’s time at Kutztown on a 404(b) basis. (Doc. 206, pp. 30, 31.)

Accordingly, the court will not grant a new trial due to the admission of this

evidence.

In any event, the evidence was admissible for the permissible 404(b)

purpose of showing Bloomsburg and PASSHE’s knowledge of certain allegations

against Dr. Hanna when they hired him. Bloomsburg and PASSHE’s knowledge

was relevant to the causation element of the retaliation claims against the two

entities because this information was helpful to the jury in considering the two

competing theories of the case presented by the parties. Dr. Krug’s theory was that

PASSHE and Bloomsburg terminated his employment in order to protect Dr.

Hanna from further allegations of inappropriate conduct toward women. The

Defendants’ theory was that Dr. Krug’s employment was terminated because he

breached confidentiality rules. Thus, the jury could consider the fact that PASSHE

had awareness of allegations about Dr. Hanna’s conduct towards women at other

institutions, and PASSHE then participated in the termination of Dr. Krug for

reporting about Dr. Hanna’s behavior toward a specific woman. Although the

substance of these allegations may be damaging to Dr. Hanna, the prejudice does

not substantially outweigh the relevance of this category of evidence.

Defendants did object to the introduction of the anonymous email regarding

Dr. Hanna’s time at Delaware Valley University on the basis that it could not be

authenticated by Dr. Hanna. (Doc. 197, p. 64.) In the course of discussion, Dr.

Krug’s counsel advised the court he was seeking to admit the email “to show that

PASSHE, which hired him [Dr. Hanna], knew all these things[.]” (Id. at 68.)

Defendants’ counsel responded that that purpose was irrelevant to a retaliation

claim or a due process claim. (Id.) Ultimately, the court overruled the objection

regarding the authenticity8 of the document and admitted the email “for the limited

purpose of shedding light on information received by Bloomsburg University and

PASSHE in the form of an anonymous email prior to hiring Dr. Hanna as president

of Bloomsburg University. However, this exhibit is not admitted to prove the truth

of the statements set forth in the anonymous email.” (Id. at 75, 76.)

Again, this email was admitted for the limited purpose of showing

Bloomsburg and PASSHE’s knowledge when they hired Dr. Hanna. This is a

proper Rule 404(b) purpose, and this evidence was relevant to Bloomsburg and

PASSHE’s decision making processes and motivations. This evidence was not

admitted for the purpose of showing the propensity of Dr. Hanna to behave in a

certain way. Additionally, the evidence was admitted with a limiting instruction,

as requested by counsel.

8 The reasons for overruling this objection are discussed infra.

While not favorable to Dr. Hanna, the prejudice associated with admitting

this document for a limited purpose does not outweigh the relevance of the

document. As the Third Circuit has opined, “[p]rejudice does not simply mean

damage to the opponent’s cause[,]” but rather, the law guards against unfair

prejudice, which is “prejudice of the sort which cloud[s] impartial scrutiny and

reasoned evaluation of the facts, which inhibit[s] neutral application of principles

of law to the facts as found.” Goodman v. Pa. Turnpike Comm’n, 293 F.3d 655,

670 (3d Cir. 2002). This evidence was relevant and admitted with a limiting

instruction in order to direct the jury’s consideration of it and mitigate prejudice

towards Dr. Hanna. Accordingly, the motion for new trial will be denied on this

ground.

2. Anonymous Email

Defendants argue that an anonymous email identifying allegations of Dr.

Hanna’s previous mistreatment of women was improperly admitted under Rule

901(a) because “[a]nonymous emails cannot be authenticated if an individual

cannot establish who wrote, delivered, or received the e-mail.” (Doc. 205, pp. 28–

30.) (citing Martsolf v. United Airlines, Inc., No. CV 13-1581, 2015 WL 8207435,

at *1 (W.D. Pa. Dec. 7, 2015); United States v. Browne, 834 F.3d 403, 410 (3d Cir.

2016); United States v. Vayner, 769 F.3d 125, 132 (2d Cir. 2014); United States v.

Southard, 700 F.2d 1, 23 (1st Cir. 1983)). Defendants argue that it was not

established who sent the email, and therefore it was not properly authenticated as

what it purports to be. (Id. at 30.) Defendants further argue that “the contents of

the email were inflammatory, and irrelevant to a retaliation and due process claim.

As a result, Defendants should be granted a new trial, as this evidence was both

inadmissible and was prejudicial beyond repair.” (Id.)

Dr. Krug responds that the email was properly authenticated as what it

purports to be: “the email sent to Bloomsburg University and PASSHE, and widely

circulated, prior to the hiring of Hanna as president.” (Doc. 206, p. 32.) Dr. Krug

distinguishes the cases cited by Defendants because the proponents of the emails in

those cases were trying to prove they were emails from certain individuals. (Id. at

34, 35.)

Federal Rule of Evidence 901(a) provides: “[t]o satisfy the requirement of

authenticating or identifying an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims

it is.” Fed. R. Evid. 901(a). The burden of authenticating a document is slight and

requires “evidence sufficient to support a finding that the item is what the

proponent claims it is.” United States v. Turner, 718 F.3d 226, 232 (3d Cir. 2013.)

(quoting Fed. R. Evid. 901(a)). The proponent must only make a prima facie case

of authenticity and, ultimately, the jury determines the authenticity of the evidence.

Id. A proponent may authenticate a document in a variety of ways, including

testimony of a witness with knowledge that “an item is what it is claimed to be.”

Fed. R. Evid. 901(b)(1).

At trial, Plaintiff’s counsel laid a foundation through Dr. Hanna’s testimony

that the anonymous email was an “email [that] went from Delaware Valley

University to people at Bloomsburg after I [Dr. Hanna] had interviewed for the

position of president at Bloomsburg[,]” and that Dr. Hanna became aware of the

email during the application process for the presidency of Bloomsburg through the

headhunter who was recruiting him. (Doc. 197, pp. 62, 63.) Dr. Hanna testified he

had seen the aforementioned email and identified Plaintiff’s Exhibit 192 as the

email in question. (Id. at 63.) Ultimately, after a question by the court at sidebar,

Defendant’s counsel admitted that this was the email received by Bloomsburg and

PASSHE and was the same email that Dr. Hanna had discussed with the

headhunter. (Id. at 69.) Therefore, Plaintiff laid a proper foundation for the email

pursuant to Rule 901.

The cases cited by Defendants are materially different. In Marstolf v. United

Airlines, Inc., No. 13-1581, 2015 WL 8207435, at * 2 (W.D. Pa. Dec. 7, 2015),

the court determined that the plaintiff had not produced competent evidence to

authenticate the emails as emanating from a certain person because plaintiff had

produced no evidence showing the emails were from that person, when the emails

had blacked out recipient’s address, subject line, and line showing date the e-mails

were sent. Id. Here, Dr. Krug never claimed that the email emanated from a

certain person and counsel admitted that this was the email that was sent to

Bloomsburg and PASSHE during Dr. Hanna’s hiring process.

In United States v. Browne, 834 F.3d 403 (3d Cir. 2016), the proponent of

anonymous Facebook messages attempted to show the messages were sent by the

defendant and were authentic under Rule 901(a). The Third Circuit noted that “the

relevance of the Facebook records hinges on the fact of authorship. To

authenticate the messages, the Government was therefore required to introduce

enough evidence such that the jury could reasonably find, by a preponderance of

the evidence, that [defendant] and the victims authored the Facebook messages at

issue.” Id. at 410. The case at bar is different because the relevance of the email

does not hinge on the authorship of the email. The relevance of the email was

related to Bloomsburg and PASSHE having received it. Defendants admitted that

they had received it. (Doc. 197, p. 69.) Thus, the email was properly authenticated

based on the purpose for which the evidence was introduced.

In United States v. Vayner, 769 F.3d 125, 131–32 (2d Cir. 2014), the Second

Circuit held that the Government had failed to authenticate a web page as authored

by defendant. Id. (“[t]he government did not provide a sufficient basis on which to

conclude that the proffered printout was what the government claimed it to be–

Zhyltsou’s [defendant’s] profile page[.]”) (emphasis in original.) Here, there was

no contention that this email was authored by a specific person and thus, needed to

be authenticated as such. The email was offered as an anonymous email sent to

PASSHE during Dr. Hanna’s hiring process, and counsel conceded that this was

such email.

In conclusion, the anonymous email was not being introduced as sent from a

specific person, and thus, was properly authenticated as the anonymous email

received by PASSHE and Bloomsburg during Dr. Hanna’s hiring process.

Therefore, the motion for a new trial will be denied on this basis.

3. Motion in limine Regarding Nature of Complaint against Dr.

Hanna

Defendants argue that allowing the jury to know that the underlying

protected activity involved sexual harassment was prejudicial to Dr. Hanna and

such information was irrelevant because Defendants did not dispute that Plaintiff

engaged in protected activity. (Doc. 205, p. 33.) Defendants argue “the nature of

the protected activity had no bearing on the case and should have been excluded,

particularly when categorizing it as ‘sexual harassment’ of an unclear sort is

outrageously prejudicial and effectively encourages the jury to speculate the

worst.” (Id. at 33.)

Dr. Krug responds that the court’s clarified ruling on the motion in limine—

allowing Plaintiff to mention that the allegations against Dr. Hanna were regarding

sexual harassment but not get into the details of what was alleged—was a

commonsense solution and consistent with applicable law which would allow

Plaintiff to meet the prima facie elements of his case, but not prejudice defendant

Hanna. (Doc. 206, pp. 41–43.) Dr. Krug then notes that the error lies in defense

counsel abandoning the motion in limine ruling and opening the door to the

underlying facts. (Id. at 44.)

In reply, Defendants argue that they conceded Plaintiff had engaged in

protected activity, at least regarding the Title VII, IX, and PHRA claims, and that

“modification of the motion in limine ruling to allow testimony about sexual

harassment resulted in unfair prejudice to defendants and warrants a new trial.”

(Doc. 208, pp. 7, 8.)

Initially, it appears Defendants are challenging this court’s modified motion

in limine ruling allowing the fact that the misconduct allegations were about sexual

harassment but prohibiting any evidence of the underlying substance of those

allegations. However, Defendants did not follow this ruling at trial. They chose to

open the door and allow the substance of the allegations against Dr. Hanna into the

trial after fair warning from the court during the defense opening statement. The

jury heard the substance of the allegations at trial because of defense counsel’s

strategic decision to make it an issue. To the extent that Defendants argue that the

jury knowing that the misconduct alleged was sexual harassment, Defendants have

advanced no different arguments than already presented to the court and the court

sees no reason to reconsider its prior rulings at this stage.

Additionally, regarding the argument that Defendants had agreed that Dr.

Krug engaged in protected activity, the court notes that a stipulation regarding

whether plaintiff had met the element of “engage in protected activity” for the Title

VII, IX, and PHRA claims was not presented throughout this trial. Accordingly,

the court instructed the jury on each element of those claims. In the brief in

support of their motion in limine, Defendants vaguely asserted they would concede

“for the retaliation claim” that Defendant engaged in protected activity.

Considering there were four retaliation claims in this lawsuit, which were based on

different events, this statement is not clear enough to qualify as Defendants

conceding an element of Plaintiff’s claims such that Plaintiff would not need to

establish that element at trial for each claim.

Moreover, Defendants do not adequately explain how allowing the jury to

hear the general nature of the underlying allegations is unduly prejudicial to Dr.

Hanna. As explained above, “[p]rejudice does not simply mean damage to the

opponent’s cause[,]” but rather, the law guards against unfair prejudice, that is,

“prejudice of the sort which cloud[s] impartial scrutiny and reasoned evaluation of

the facts, which inibit[s] neutral application of principles of law to the facts as

found.” Goodman, 293 F.3d at 670. Certainly, hearing that Dr. Hanna had been

accused of sexual harassment is ‘damaging’ to the jury’s perception of him.

However, the court does not believe that simply learning the allegations against Dr.

Hanna involved sexual harassment would render the jury unable to impartially

evaluate the events, or that any prejudice from this fact was substantially

outweighed by the probative value of Plaintiff being able to establish an element of

his case. Defense counsel could have minimized prejudice, as Plaintiff’s counsel

initially did, through argument and testimony. Rather, defense counsel decided to

open the door to a full description of Dr. Hanna’s conduct with Ms. Crossley.

Accordingly, the motion for a new trial will be denied on this basis.

4. Exclusion of Ballard Spahr Report for Failure to Qualify as a

Business Record

Defendants argue they are entitled to a new trial because the court failed to

admit the Ballard Spahr report as a business record. (Doc. 205, p. 34.) Defendants

argue the court’s ruling was erroneous based on the court’s reasoning that the

designated keeper of the records was not in the role at the time and that the report

was prepared for the purpose of litigation. (Id.) Defendants cite to Conoco Inc. v.

Dep’t of Energy, 99 F.3d 397, 391 (Fed. Cir. 1996) to argue that the qualifying

witness does not need to be the person who prepared or maintained the record, “as

long as the witness understands the system used to prepare the records.” (Id. at

35.) Defendants also argue the report was not prepared in anticipation of litigation

because “[a]n investigation report into the disclosure of confidential information is

not inherently prepared in anticipation of litigation.” (Id. at 36.)

Defendants further argue that the failure to admit the report was not

harmless, even though the report was eventually admitted for the limited purpose

of showing its effect on Dr. Krause, due to Plaintiff’s counsel’s “capitalization” on

the court’s ruling. (Doc. 205, p. 37.) For example, Defendants argue that

counsel’s comments as to the report being “such garbage that it’s not even

admissible for [the jury] to consider what’s in it is true[,]” and counsel’s side

comment that the report has not been admitted show that it was error for the court

not to admit the report. (Id.) Although it is clear that Defendants’ counsel did not

appreciate Dr. Krug’s counsel’s comments, it is not clear why counsel’s arguments

in closing or comments on whether evidence has yet to be admitted warrant a new

trial or show prejudice against Defendants.

With respect to the substance of this argument, Dr. Krug counters by

explaining how the Ballard Spahr report fails to meet each foundational

requirement of Rule 803(6). (Doc. 206, pp. 36–38.) Dr. Krug also points to the

rationale for Rule 803, which is that the regular processes of a business provide

assurance of reliability. (Id. at 38.) Additionally, Dr. Krug distinguishes each case

Defendants relied upon. (Id. at 39.) Finally, Dr. Krug argues that “the point of the

jury not being able to consider the truth of the Ballard Spahr report was because it

constituted hearsay (defendants chose not to call the report’s authors as witnesses),

and it also contained multiple levels of hearsay of various persons who defendants

chose not to call as witnesses.” (Id. at 40.)

In reply, Defendants, for the first time, attempt to show they have met the

foundational requirements of Rule 803(6). (Doc. 208, pp. 9, 10.) Defendants

argue that the Ballard Spahr attorneys who drafted this report had personal

knowledge because they conducted the interviews; reiterate that the keeper of the

records testified “external documents are routinely kept in the normal course of

business, and that an investigation of this nature is routine[;]” Defendants contest

that Plaintiff’s argument that hiring Ballard Spahr was not a regular practice of

PASSHE, and finally, Defendants argues that Plaintiff “ask[s] the Court to take

him at his word[]” that the interviews in the Ballard Spahr report are “pure

fiction[,]” despite Plaintiff accurately citing to the record wherein he presented

evidence from Ms. Rostucher and Jeffrey Krug that what was contained in the

report was not accurate to what they told interviewers. (Id. at 9, 10; Doc. 206, p.

40.)

Federal Rule of Evidence 803(6) provides:

A record of act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by–or from information

transmitted by–someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity

of a business, organization, occupation, or calling, whether or not

for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or

another qualified witness, or by a certification that complies with

Rule 902(11) or (12) or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the

method or circumstances of preparation indicate a lack of

trustworthiness.

FED. R. EVID. 803(6).

The Third Circuit has explained that, in order to admit a document

containing hearsay under this exception, the custodian or other qualified witness

must testify that:

(1) the declarant in the records had personal knowledge to make

accurate statements; (2) the declarant recorded the statements

contemporaneously with the actions that were the subject of the reports;

(3) the declarant made the record in the regular course of the business

activity; and (4) such records were regularly kept by the business.

United States v. Pelullo, 964 F.2d 193, 200 (3d Cir. 1992).

At trial, the court provided multiple reasons for not admitting the report.

Primarily, the court concluded that the Defendants failed to present testimony that

satisfied the foundational elements. As a preliminary matter, the court found that

Ms. Williamson was not a proper custodian because she was not employed by

Bloomsburg University at the time the record was made, so she could not have

personal knowledge of the foundational requirements at the time the document was

prepared. (Doc. 198, p. 129.) On the merits of the exception, the court found that

Defendants had not satisfied the foundational elements required of Rule 803(6)

because the preparers of the document (Ballard Spahr attorneys) did not have

personal knowledge of the matters related in the report, and additionally, it was not

a regular practice of Bloomsburg University to have outside law firms prepare

investigative reports. (Id.) Rather, Ms. Williamson simply testified that it was

common for Bloomsburg to maintain documents prepared by outside parties. (Id.)

As a separate, independent reason for not admitting the document as a

business record, the court noted that this document was prepared for the purpose of

investigation and litigation of an employee personnel issue, and, pursuant to

Palmer v. Hoffman, 318 U.S. 109 (1943), it was within the court’s discretion to

exclude the document. (Id. at 130.) The court also noted that the testimony so far

in the case had raised serious question regarding the reliability of information in

the report. (Id.) Further, the court also expressed hesitation over the layers of

hearsay contained with the document. Thus, while the document could potentially

be admissible, if an adequate foundation had been laid, each statement would have

had to satisfy its own hearsay exception. (Id.)

The court stands by this reasoning and does not find Defendants’ present

arguments to have merit. First, addressing whether Ms. Williamson was the proper

custodian, Defendants argue a proper records custodian need only “understand[]

the system used to prepare the records.” (Doc. 205, p. 35) (quoting Conoco Inc. v.

Dep’t of Energy, 99 F.3d 397, 391 (Fed. Cir. 1996)). Ms. Williamson did not

testify to this effect. She testified regarding the University’s process of hiring a

third party to conduct a report, but she did not testify about having any knowledge

as to how this specific report was prepared nor did she testify as to the University’s

process for maintaining reports, just that the University maintains outside third

party reports. (Doc. 198, p. 117–126.) This is insufficient to qualify her as a

records custodian. However, even if Ms. Williamson was a proper custodian, her

testimony did not present the foundational requirements in any event because she

was not employed by the University when the record was created or received by

the University. Pelullo, 964 F.3d at 201. In substance, Ms. Williamson basically

testified that this report was saved in a file by the University during her

employment with the University (which was later than when the document was

created and received).

Second, Defendants contend that the Ballard Spahr report was not prepared

in anticipation of litigation. (Doc. 205, p. 36.) Even if the court were to agree with

this argument, it would not rectify the fact that Defendants did not lay the

foundational requirements, as explained above. Finally, in Defendants’ reply brief,

Defendants attempt–for the first time–to address the foundational requirements of

Rule 803(6). (See Doc. 198, p. 127; Doc. 208, pp. 9, 10.) This explanation does

not change the testimony presented at trial, which did not establish the

foundational requirements of Rule 803(6).

Finally, Defendants argue it was error for the court to admit the report with a

limiting instruction because it undermined the report’s evidentiary value, which

was underscored by Plaintiff’s counsel using the court’s instruction to argue the

report was “garbage.” The court notes that there was no objection to the comment

at the time and thus, any objection to the comment has been waived. Accordingly,

the motion for a new trial is denied on this basis as well.

CONCLUSION

For the foregoing reasons, Defendants’ motion for judgment as a matter of

law is denied. Defendants’ motion for a new trial is also denied. An Order

follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: March 11, 2025