FENCHAK

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BARRY J. FENCHAK, CIVIL ACTION

Plaintiffs,

NO. 25-6313-KSM

v.

PENNSYLVANIA STATE UNIVERSITY,

et al.,

Defendants.

MEMORANDUM

Marston, J. April 17, 2026

Plaintiff Barry J. Fenchak was a member of the Board of Trustees of The Pennsylvania

State University from 2022 to 2025. During his tenure, Fenchak repeatedly (and at times,

publicly) sought financial information about administrative fees paid for managing the

University’s endowment and about the terms and conditions of a contract that the University was

negotiating with the sports ticketing company, Elevate Collegiate Ticketing, LLC. In June 2025,

the Board of Trustees voted to remove Fenchak from the Board, allegedly because of an

inappropriate sexual comment that he made while attending a Board meeting. Following his

removal, Fenchak brought this case against the University, former Board Chair Matthew

Schuyler, and Board Vice Chair David Kleppinger alleging defamation, false light, breach of

fiduciary duties, and violations of the United States and Pennsylvania Constitutions. (Doc. No.

1-3.) Defendants move to dismiss the Complaint in its entirety. (Doc. No. 6.) For the reasons

discussed below, that motion is granted in part and denied in part.

I. BACKGROUND1

The Board of Trustees is a nonprofit corporate body established by The Pennsylvania

State University’s Charter. (Doc. No. 1-3 at ¶ 18.) The Board is composed of 38 members,

some of whom are elected by alumni and some of whom are appointed, and it is governed by the

University’s Amended and Restated Bylaws. (Id. at ¶¶ 19–20.) In 2022, Fenchak was elected by

the University’s alumni to serve a three-year term as a voting member on the Board, and he

assumed his position on July 1, 2022. (Id. at ¶¶ 24–25.) Fenchak alleges that throughout his

tenure, he “engaged in principled, civil, and respectful debate” with other trustees, “[c]onsistent

with expectations of membership . . . as a Board of Trustees member.” (Id. at ¶ 34; accord id. at

¶¶ 33, 35–42.) In particular, there was significant debate between Fenchak and his fellow

trustees about whether he should be given access to: (1) financial information related to

administrative fees paid for management of the University’s endowment and (2) the terms and

conditions of the Elevate contract.

A. Administrative Fees

The Board is tasked with, among other things, overseeing and managing the University’s

endowment, which is valued at around $5 billion. (Id. at ¶ 48.) As a new trustee, Fenchak

sought to familiarize himself with the endowment by reviewing the University’s IRS Form 990

filings for the 2008 to 2023 calendar years. (Id. at ¶ 50.) During that review, Fenchak noticed

that “professional administrative fees paid to manage the . . . endowment rose dramatically in

2017, more than tripling the rate within (3) three years.” (Id. at ¶ 51.) Concerned, Fenchak spent

1 The following facts are taken from the Complaint, and are assumed true for purposes of the

instant motion. See Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (“The District

Court, in deciding a motion under Federal Rule of Civil Procedure 12(b)(6), [i]s required to accept as true

all factual allegations in the complaint and draw all inferences from the facts alleged in the light most

favorable to [the plaintiff].”).

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his first two years as trustee repeatedly requesting “access to the specific data and items that

totaled the aggregated figures listed on the IRS Form 990s” as “administrative fees reported to

have been paid by the University to manage the endowment.” (Id. at ¶ 53.) His requests,

however, were repeatedly denied, first, by the Vice Chair of the Board’s Finance Business and

Capital Planning Committee and later, by other “controlling Board of Trustees members,”

including Defendants Schuyler and Kleppinger. (Id. at ¶¶ 54–64.)

On July 16, 2024, Fenchak filed an action against the Board and Schuyler in the

Pennsylvania Court of Common Pleas for Centre County, seeking an order compelling

production of information related to the administrative fees. See Fenchak v. Pa. State Univ. Bd.

of Trs., No. 2024-CV-1843-CI (Centre Cnty. Ct. Comm. Pl.) (“Fenchak I”).

B. The Elevate Contract

A few months before filing Fenchak I, in the spring of 2024, Fenchak learned that the

University was entertaining a 10-year expanded ticketing partnership with the sports ticketing

company, Elevate, the goal of which would be to maximize revenue needed to support the

University’s ongoing $700 million renovation of Beaver Stadium, the University’s football

stadium. (Doc. No. 1-3 at ¶ 66; see also id. at ¶ 67 (alleging that the University and Elevate

“entered into a Letter of Intent”).) In April and May 2024, Fenchak “forwarded requests to

various controlling Board of Trustees members for access to information related to the terms of

and conditions of [the] contract under negotiation.” (Id. at ¶ 69.) Defendants Schuyler and

Kleppinger denied those requests on May 7, 2024, explaining that additional information about

the Elevate contract “would be provided to all trustees in the ordinary course.” (Id. at ¶ 71.)

Two weeks later, the Board convened a public meeting. (Id. at ¶ 73.) The purpose of the

meeting was for “voting members of the Board of Trustees to consider and act upon a Resolution

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for project approval concerning Beaver Stadium renovations.” (Id. at ¶¶ 80, 81.) The proposed

resolution authorized certain trustees to “cause the University to award contracts on behalf of the

University in furtherance of the ongoing Beaver Stadium Renovation Project, inclusive of [the

Elevate contract].” (Id. at ¶ 82.) During that meeting, Fenchak disclosed that he had previously

requested “access to information relating to the terms and conditions” of the Elevate contract but

his requests had been denied. (Id. at ¶ 85.) He also publicly asked Defendant Schuyler when all

the members of the Board would be given information about the Elevate contract and why that

information was being kept secret. (Id. at ¶¶ 88–89.)

On August 16, 2024, Fenchak renewed his request for a copy of the Elevate contract. (Id.

at ¶ 107.) Defendants Schuyler and Kleppinger once again denied the request, this time by letter

dated August 20, 2024:

We write in response to your August 16, 2024 request for the

University’s agreement with Elevate.

On multiple occasions, including April 18, 2024 and May 2, 2024,

all trustees were provided with detailed information about the

confidential financial guarantees and revenue share provision in the

proposed arrangement with Elevate. Questions were posed by

trustees and answered by University administrators regarding this

information, as well as related to the reference checks conducted to

confirm Elevate bona fides. As you know, the Board has received

and will continue to receive regular updates on the Beaver Stadium

renovation project, including information on ticket/seat sales.

While we welcome all trustees’ efforts to prepare for and

meaningfully participate in Board proceedings and fulfill their

oversight obligations to the University, your request for this

document is unreasonable, beyond that which is objectively

necessary for you to discharge your duties as a trustee, and seeks

information the University is not able to share due to legal

obligations it has with Elevate. Furthermore, your repeated

violations of your confidentiality obligations have created risks for

the University that inform our decision not to provide the contract

to you.

Under the terms of the University’s agreement with Elevate,

disclosure of the Agreement within the University is contractually

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restricted to those individuals who have a need to know such

information in connection with the University’s duties and

obligations under the Agreement. In other words, disclosure of the

Agreement within the University is limited to those persons tasked

with carrying out the obligations in the Agreement including Penn

State Finance operations that support those obligations.

Additionally, and despite your mischaracterization that such claims

of confidentiality are “specious,” the Elevate Agreement and the

framework of the Agreement itself, contains commercially sensitive

information that Elevate has sought to protect. Your prior

confidentiality breach related to Elevate—your disclosure of the

existence of a confidential letter of intent between the University

and Elevate in a public meeting of the Board in May 2024—was

raised by Elevate as a significant concern. Further sharing of

confidential information by you could damage the University’s

relationship with Elevate.

We are available to discuss further should you wish to do so.

(Id. at ¶ 108; id. at 68.)

One week later, on August 27, 2024, Fenchak amended his complaint in Fenchak I to

also seek an order compelling production of “information informing upon the terms and

conditions” of the Elevate contract. (Id. at ¶ 100.) The amended complaint quoted the August

20 letter verbatim and, except for the salutation, in its entirety. (See Doc. No. 6-3 at ¶ 103.)

Defendants answered the amended complaint in Fenchak I by filing preliminary objections,

which included a copy of the August 20 letter attached as an exhibit. (Doc. No. 1-3 at ¶ 109.)

C. Fenchak’s Investigation and Removal from the Board

On July 19, 2024—just a few days after he filed Fenchak I—Fenchak attended a Board

meeting at the University’s Altoona campus. (Doc. No. 1-3 at ¶ 91.) While there, he spoke to

three IT employees, and during the conversation, commented that “his wife says he cannot wear

baseball hats because it makes him look like ‘a penis with a hat on.’” (Id. at ¶¶92–93.) A sexual

harassment investigation was launched against Fenchak in connection with this comment, and it

was ultimately recommended that Fenchak be removed from the Board for violating the Trustee

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Code of Conduct. (Id. at ¶ 97.) A meeting was scheduled for October 2024 to rule on this

recommendation. (Id.)

Meanwhile, on July 30, 2024, the Board amended the University’s bylaws in two crucial

ways. First, the amended bylaws empowered “the Chair of the Board to restrict a member

Trustee’s access to University information.” (Id. at ¶ 105(f).) Second, the amended bylaws

“vested the Chair of the Board and the Chair of the Governance Committee with ultimate power

to sanction and remove member Trustees from their position on the Board.” (Id. at ¶ 105(g).)

After learning of the amended bylaws, Fenchak brought a second lawsuit, challenging the

amendments as facially unconstitutional under the Pennsylvania Constitution and state law. See

Fenchak v. The Pa. State Univ. Bd. of Trs., No. 2025-CV-0882-CI (Centre Cnty. Ct. Comm. Pl.)

(“Fenchak II”). The court rejected these arguments and dismissed the action on the pleadings.

(Doc. No. 6-2.)

Fenchak was ultimately removed as a trustee by a vote of 30 to 4 on June 16, 2025. (Id.

at ¶ 112.)2 He was also voted ineligible to be listed on the ballot in the 2025 alumni trustee

election. (Id. at ¶ 113.)

D. Procedural History

On October 30, 2025, Fenchak filed this action in the Court of Common Pleas of

Philadelphia County. (Doc. No. 1 at ¶ 1.) He brings claims for defamation, false light, breach of

fiduciary duties, and violations of the United States and Pennsylvania Constitutions against the

University, Schuyler, and Kleppinger. (Doc. No. 1-3.) Defendants removed the matter to this

2 Although not specified in the Complaint, Defendants note in their motion to dismiss that the

removal vote initially scheduled for October 9, 2024 was delayed because Fenchak obtained a preliminary

injunction in Fenchak I. (See Doc. No. 6-1 at 9.) The injunction was dissolved on May 16, 2025, and

Fenchak was then removed from the Board one month later. (Id. at 9–10.)

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Court on November 6, 2025. (See generally Doc. No. 1.) And two weeks later, they moved to

dismiss the Complaint in its entirety. (Doc. No. 6.) Fenchak opposes that motion. (Doc. No. 9.)

II. LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Zuber v. Boscov’s, 871 F.3d 255, 258 (3d Cir. 2017) (quotation marks

omitted). In reviewing a motion to dismiss, the court must accept as true the factual allegations

in the complaint and all reasonable inferences that can be drawn from those allegations. Id.

However, the court is not “compelled to accept unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Castleberry v. STI Grp., 863

F.3d 259, 263 (3d Cir. 2017) (quotation marks omitted). And “threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should

consider only the allegations in the complaint, as well as “documents that are attached to or

submitted with the complaint . . . and any matters incorporated by reference or integral to the

claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in

the record of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006);

accord Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011).

III. DISCUSSION

Fenchak brings three types of claims: (1) invasion of privacy (defamation and false

light), (2) breach of fiduciary duties, and (3) constitutional violations under the United States and

Pennsylvania Constitutions. All claims are asserted against all Defendants. Defendants have

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moved under Rule 12(b)(6) to dismiss the Complaint in its entirety. (Doc. No. 9.) The Court

considers Fenchak’s invasion of privacy claims (Counts I and II), his fiduciary claims (Count

III), and his constitutional claims (Counts IV through IX) in turn.

A. Invasion of Privacy Claims

In Counts I and II, Fenchak brings state law claims for defamation and false light, both of

which are premised on Defendants’ publication of the August 20, 2024 letter from Schuyler and

Kleppinger to Fenchak on the public docket in Fenchak I. (See Doc. No. 1-3 at ¶ 159

(“Defendants published or otherwise disseminated the defamatory communication contained in

the correspondence dated August 20, 2024, to the public at large September 17, 2024 at 3:16

p.m., by filing the correspondence of public record in the Office of the Centre County

Prothonotary . . . .”); id. at ¶ 176 (“The correspondence dated August 20, 2024, contains

statements which placed the plaintiff in a false light.”).) Defendants argue that these claims must

be dismissed because they are entitled to immunity under Pennsylvania’s doctrine of judicial

privilege. (Doc. No. 6-1 at 10–13.) The Court agrees.

In Pennsylvania, “[a]ll communications pertinent to any stage of a judicial proceeding are

accorded an absolute privilege which cannot be destroyed by abuse.” Binder v. Triangle Pubs.,

Inc., 275 A.2d 53, 56 (Pa. 1971); see also Post v. Mendel, 507 A.2d 351, 354–55 (Pa. 1986)

(“[T]here has long been recognized a realm of protected communications in judicial proceedings.

In this Commonwealth, protection for such communications is firmly established.”). Under this

doctrine, “statements by a party, a witness, counsel, or a judge cannot be the basis of a [tort]

action whether they occur in the pleadings or in open court,” Binder, 275 A.2d at 56, so long as

the communication is “issued in the regular course of judicial proceedings” and is “pertinent and

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material to the redress or relief sought,” Post, 507 A.2d at 355 (emphases omitted). Both

conditions are satisfied here.

First, Defendants published the August 20, 2024 letter as an exhibit to their preliminary

objections in Fenchak I, so the communication was made “in the regular course of judicial

proceedings.” Post, 507 A.2d at 355. Fenchak disputes this conclusion on the grounds that

Defendants “did not prepare” the August 20, 2024 letter “for purpose of initiating a judicial

proceedings [sic], nor did the defendants prepare the . . . letter in the regular course of judicial

proceedings.” (Doc. No. 9-1 at 18 (referring to the letter as “an extra-judicial act”).) But that

fact is immaterial to the analysis here. It is true that an extra-judicial communication is not

protected merely because it is filed in a judicial proceeding. See Post, 507 A.2d at 355–56

(holding privilege did not extend to “extra-judicial communications” like the defendant’s letter

because although the letter “made reference to matters which occurred in an ongoing trial, the

letter was not directly relevant to the court proceedings . . . . The letter was clearly not a part of

the judicial proceedings to which it made reference, and merely forwarding a copy of the letter to

the court did not make it a part of those proceedings”); Barto v. Felix, 378 A.2d 927, 930 (Pa.

Super. Ct. 1977) (“[J]udicial immunity does not protect the public defender in this case, for the

remarks made by him at the press conference were not made at a judicial proceeding. They did

not fall within the sphere of activities which judicial privilege was designed to protect.”). But

here, Fenchak is challenging the fact that the August 20, 2024 letter was published on the docket

in Fenchak I. (See, e.g., Doc. No. 1 at ¶ 159 (“Defendants published or otherwise disseminated

the defamatory communication contained in the correspondence dated August 20, 2024, to the

public at large September 17, 2024 . . . by filing the correspondence of public record in the

Office of the Centre County Prothonotary . . . .” (emphases added))). Accordingly, the Court

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finds the communication at issue was made “in the regular course of judicial proceedings.” Post,

507 A.2d at 355; see also Handy v. Del. River Surgical Suites, LLC, No. 19cv1028, 2023 WL

11884784, at *7 (E.D. Pa. Jan. 19, 2023) (finding the judicial privilege applied because

“[a]ttempting to admit evidence or attaching documents to pleadings is a communication with

the court attempting to seek relief”).3

Second, the letter’s contents were also “pertinent and material” to the proceeding. Post,

507 A.2d at 355. Fenchak I was about whether the Board wrongfully denied Fenchak access to

financial information about administrative fees and the Elevate contract. See generally Fenchak

I, Doc. No. 9 (Aug. 27, 2024). Defendants filed preliminary objections seeking dismissal of the

complaint and argued in part that Fenchak was not entitled to information related to the Elevate

contract under Pennsylvania law because—as explained to him in the August 20, 2024 letter—

his request sought “information the University is not able to share due to legal obligations it has

to Elevate” and his repeated violations of confidentiality had “created risks for the University”

that inform Defendants’ decision not to provide him with a copy of the proposed contract. Id.,

Doc. No. 10 at ¶ 47 (Sept. 16, 2024); see also id. at ¶ 54 (arguing that the complaint should be

dismissed at least in part because Fenchak did not “allege that he has not violated his

confidentiality obligations as a trustee”). Indeed, Fenchak can hardly dispute the letter’s

materiality given that his amended complaint in Fenchak I, which was filed on the public docket

weeks before Defendants’ preliminary objections, quoted the body of the letter verbatim and in

full. Id., Doc. No. 9 at ¶ 103.

3 The Court strongly disagrees with Fenchak’s contention that the “holding of Handy is burdened

with infirmities, misconstrues the concept of judicial [privilege], and troubling to understand.” (Doc. No.

9-1 at 20.)

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Because the communication that serves as the basis for Fenchak’s defamation and false

light claims was “issued in the regular course of judicial proceedings” and is “pertinent and

material to the redress or relief sought,” Post, 507 A.2d at 355 (emphases omitted), Defendants

are protected from suit on Fenchak’s defamation and false light claims by the judicial privilege,

see Handy, 2023 WL 11884784, at *7 (“Although the judicial privilege had its origin in

defamation actions, ‘it has now been extended to include all tort actions based on statements

made during judicial proceedings.’” (quoting Panitz v. Behrend, 632 A.2d 562, 564 (Pa. Super.

Ct. 1993))).4 Counts I and II are dismissed with prejudice.

B. Fiduciary Duty Claims

In Count III, Fenchak contends that Defendants “breached the duties of care owed” to

Fenchak when they (1) “[p]ublish[ed] or otherwise disseminat[ed] the defamatory

communication contained in the correspondence dated August 20, 2024 . . . by filing the

correspondence of public record in the Office of the Centre County Prothonotary” and

(2) “[r]etaliat[ed] against [Fenchak] for voicing his opinions, beliefs, or disagreements that differ

from the prevailing views maintained by defendants” and for otherwise engaging in “protected

speech.” (Doc. No. 1-3 at ¶ 198(a).) Defendants argue that Fenchak’s claims fail because none

of the Defendants owed a fiduciary duty to Fenchak. The Court agrees.5

4 Because the Court dismisses Counts I and II on this basis, we need not consider Defendants’

argument that Fenchak consented to the August 20, 2024 letter’s filing on the docket.

5 Defendants also argue, and the Court concludes, that Fenchak’s first contention likewise fails

for the reasons discussed in Part III.A.—Defendants’ publication of the August 20, 2024 letter is covered

by the judicial privilege. See Handy, 2023 WL 11884784, at *7 (recognizing that the judicial privilege

has “been extended to include all tort actions based on statements made during judicial proceedings”

(quoting Panitz, 632 A.2d at 564) (emphasis added)); see also Panitz, 632 A.2d at 564 (“Regardless of the

tort contained in the complaint, if the communication was made in connection with a judicial proceeding

and was material and relevant to it, the privilege applies. The privilege is equally applicable where the

cause of action is stated in terms of misrepresentation or a contractual requirement to exercise due care.”

(citations and quotation marks omitted)).

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Directors of a nonprofit corporation owe a fiduciary duty to the corporation; they do not

owe fiduciary duties to their fellow directors, nor are they owed fiduciary duties by the

corporation. See 15 Pa. Stat. & Cons. Stat. § 5717 (stating that the fiduciary duty owed by

individual directors is owed “solely to the nonprofit corporation and not to any member or

creditor or any other person or group, and may be enforced directly by the corporation or may be

enforced by an action in the right of the corporation, and may not be enforced directly by a

member or creditor or by any other person or group” (emphasis added)); Carlson v. Fawn Ridge

Estates Homeowners’ Ass’n, Inc., No. 1256 C.D. 2011, 2012 WL 1358573, at *3–5 (Pa.

Commw. Ct. Apr. 17, 2012) (affirming grant of summary judgment in favor of nonprofit

corporation and the corporation’s director because § 5717 “permits members of the nonprofit

corporation to bring an action for breach of fiduciary duty only as a derivative action on behalf

of the nonprofit corporation” and not for “breach of fiduciary duty or damages . . . against the

corporation or against directors or officers on their own behalf”).6 Contrary to Fenchak’s

suggestion (see Doc. No. 9-1 at 23), nothing in the statute establishing the University and the

Board of Trustees renders § 5717 inapplicable, authorizes trustees to bring suit on their own

6 Although Fenchak alleges that the relevant duties of care arose, at least in part, out of the

University’s bylaws (see Doc. No. 1-3 at ¶¶ 191–97), those allegations do not save Count III. Fenchak

has not alleged that the bylaws state that the duties of care run from one trustee to another or from the

University to a trustee. And the Court’s independent review of the bylaws revealed that they state only

that “[t]rustees have crucial fiduciary responsibilities towards the University under these Bylaws.”

Bylaws for Bd. of Tr’ees § 2.03(a), https://trustees.psu.edu/files/2025/12/Bylaw-Elections-Appendix-

2025-November.pdf (last visited Apr. 16, 2026) (emphasis added). Even if the Court were to ignore this

clear language, we still would not be inclined to read the bylaws in the manner Fenchak proposes,

because to do so would impermissibly render them at odds with § 5717. See 15 Pa. Stat. & Cons. Stat.

§ 5504(a) (“The bylaws may contain any provisions for managing the business and regulating the affairs

of the corporation not inconsistent with law or the articles [of incorporation].” (emphasis added)); see also

Fenchak v. The Pa. State Univ. Bd. of Trs., No. 25cv0882, 2025 WL 1643951, at *4 (Centre Cnty. Ct.

Comm. Pl. Apr. 14, 2025) (“The Board [of Trustees for the University] is further empowered by the

Pennsylvania Nonprofit Corporation Law to pass ‘any provisions for managing the business and

regulating the affairs of the corporation not inconsistent with laws or the articles.’” (quoting 15 Pa. Stat.

& Cons. Stat. § 5504(a)) (emphasis added)).

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behalf as board members, or alters the fiduciary relationship between trustees and the University

they represent. See 24 Pa. Stat. & Cons. Stat. § 2533 (establishing a board of trustees for what

would become the University and mandating that “said corporation shall by the same name have

power to sue and be sued” (emphasis added)).

Accordingly, Count III is also dismissed with prejudice.

C. Constitutional Claims for Deprivation of Free Speech

Last, Fenchak brings claims for unlawful retaliation in violation of the First Amendment

of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. The

state constitutional claims (Counts VII through IX) are quickly dismissed, however, as “[n]o

Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private cause of

action for damages under the Pennsylvania Constitution.” Pocono Mountain Charter Sch. v.

Pocono Mountain Sch. Dist., 442 F. App’x 681, 687 (3d Cir. 2011); see also, e.g., Dooley v. City

of Philadelphia, 153 F. Supp. 2d 628, 663 (E.D. Pa. 2001) (“Courts of this circuit that have

considered the question have concluded that Article I, Section 7 does not establish a private

cause of action for damages.”) (collecting cases).

That leaves Fenchak’s claims for unlawful retaliation under the First Amendment of the

United States Constitution (Counts IV through VI), which are brought pursuant to 42 U.S.C.

§ 1983.7 Fenchak contends that Defendants Schuyler and Kleppinger violated his First

7 That section provides in part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

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Amendment rights when they “deliberately retaliated against [him] as a result of the [his]

exercise of speech” (Doc. No. 1-3 at ¶¶ 233, 244)8 and that the University is vicariously liable

for their actions (id. at ¶¶ 208–27). “[T]o plead a claim for First Amendment retaliation, a

plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to

deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link

between the constitutionally protected conduct and the retaliatory action.” Willson v. Yerke, 604

F. App’x 149, 151 (3d Cir. 2015) (quotation marks omitted); see also Houston Comm’ty Coll.

Sys. v. Wilson, 595 U.S. 468, 474 (2022) (explaining that a plaintiff pursuing a claim for First

Amendment retaliation “must show, among other things, that the government took an ‘adverse

action’ in response to his speech that ‘would not have been taken absent the retaliatory motive.’”

(quoting Nieves v. Bartlett, 587 U.S. 391, 398 (2019))).

Here, Defendants, relying on the United States Supreme Court’s opinion in Garcetti v.

Ceballos, argue that Fenchak’s retaliation claims fail on the first element, because at all relevant

times, Fenchak was speaking in his capacity as a trustee, and never as a private citizen. (Doc.

No. 6-1 at 14 (citing Garcetti, 547 U.S. 410, 421–22 (2006)). In Garcetti, the Supreme Court

held that “when public employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment purposes, and the Constitution does

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured

by the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

8 The Complaint does not specify how Defendants Schuyler and Kleppinger allegedly retaliated

against Fenchak. (See Doc. No. 1-3 at ¶¶ 233, 244.) But based on Fenchak’s allegations against the

University, the Court infers that he views the entire course of events leading to his removal—i.e., the

sexual harassment investigation, the recommendation of removal, and Fenchak’s ultimate removal from

the Board of Trustees pursuant to the amended bylaws—as retaliatory. (See id. at ¶¶ 208–27.)

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not insulate their communications from employer discipline.” 547 U.S. at 421. The problem

with Defendants’ reliance on this holding is that it assumes Fenchak was a public employee, but

the allegations in the Complaint suggest he may be more appropriately considered an elected

public official. (Doc. No. 1-3 at ¶ 24 (alleging that Fenchak was “elected by the alumni” of the

University); id. at ¶¶ 209–10 (alleging that the University is a “state actor”)); see also Phelan v.

Laramie Cnty. Comm’ty Coll. Bd. of Trs., 235 F.3d 1243, 1247 (10th Cir. 2000) (finding “the

Board [of Trustees] members and [the plaintiff, as a trustee,] occupy the same positions as

elected officials”). If Fenchak is an elected official, then it is far from clear that Garcetti applies.

See Werkheiser v. Pocono Township, 780 F.3d 172, 177 (3d Cir. 2015) (“We pause here to

emphasize that we do not today decide whether Garcetti is applicable to elected officials’ speech

or not.”); Wilson v. Yerke, 604 F. App’x 149, 152 (3d Cir. 2015) (“Werkheiser did not

definitively answer the question whether Garcetti is applicable to elected officials’ speech, but it

did hold that the law was not clearly established on this issue.”); Croft v. Donegal Township, No.

20cv1430, 2021 WL 1146285, at *5 (W.D. Pa. Mar. 25, 2021) (“[T]he scope of [the protection

afforded an elected official’s speech]—and importantly, the type or degree of retaliatory conduct

sufficient to trigger a violation of the First Amendment—is not clear.”).

Although the Third Circuit in Werkheiser declined to address the issue, dicta in that case

suggests the rationale underlying Garcetti does not apply in the case of an elected public official.

See 780 F.3d at 178 (“Many of the reasons for restrictions on employee speech appear to apply

with much less force in the context of elected officials. Werkheiser’s speech as an elected

official is not subject to prior review or approval. To use Garcetti’s language, his speech is

neither ‘controlled’ nor ‘created’ in the same way that an employer controls the speech of a

typical public employee. . . . [And], there is no truly comparable analog to ‘managerial

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discipline’ when discussing retaliation between elected officials.” (quoting Garcetti, 547 U.S. at

424)); see also Jenevein v. Willing, 493 F.3d 551, 557–58 (5th Cir. 2007) (“[T]he preferable

course ought not draw directly upon the Pickering-Garcetti line of cases for sorting the free

speech rights of employees elected to state office.”); Phelan, 235 F.3d at 1247 (finding, albeit

before Garcetti was decided, that the Pickering line of cases did not apply to the plaintiff’s First

Amendment retaliation claim because she “is not a governmental employee or contractor,” and

instead, “occup[ies] the same position[ ] as [an] elected official[ ]”).

And, consistent with Werkheiser, Jenevein, and Phelan, many recent district courts have

declined to apply Garcetti in cases involving elected officials. See, e.g., Greenman v. City of

Hackensack, 486 F. Supp. 3d 811, 826 (D.N.J. 2020) (“In short, the Garcetti categories do not

read very readily onto the situation of an elected councilwoman, like Ms. Greenman. True, she

may suffer consequences for political speech—but not because she is in some subordinate role,

subject to the authority of her public employer. . . . Plaintiff spoke as elected official. (As I have

held, Garcetti does not apply as such. Speech is protected, but ‘retaliation,’ to be impermissible,

must rise to the level of interfering with plaintiff’s functioning as an elected official).”); Warren

v. DeSantis, 631 F. Supp. 3d 1188 (N.D. Fla. 2022) (“Garcetti deals with government

supervisors, their subordinates, and managerial discipline. The decision includes not a word

about the First Amendment rights of elected officials—the issue decided in Bond—and the

decision’s rationale simply does not apply to them. . . . [T]he weight of circuit authority supports

this analysis.” (collecting cases)). But see, e.g., Hartman v. Register, No. 06cv33, 2007 WL

915193, at *6 (S.D. Ohio Mar. 26, 2007) (“The distinction between the public employee in

Garcetti and an elected official, in this case Plaintiff, is inconsequential.”).

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Considering the unsettled nature of the case law and outstanding questions as to whether

trustees, like Fenchak, are more appropriately considered public employees or elected officials—

issues which no party meaningfully addresses9—the Court declines to dismiss Fenchak’s federal

constitutional claims at this juncture. Defendants may raise this argument again at summary

judgment if appropriate.10

IV. CONCLUSION

For the reasons discussed above, Defendants’ motion to dismiss is granted in part and

denied in part. It is denied as to Fenchak’s First Amendment claims (Counts IV through VI). It

is granted as to Fenchak’s remaining claims, all of which are dismissed with prejudice. An

appropriate order follows.

9 Fenchak argues that Garcetti is inapplicable, but, confusingly, not on the grounds that Fenchak

is an elected official. Instead, Fenchak argues that the University is a private entity for First Amendment

purposes, and thus, Fenchak could not have been speaking as a public employee under Garcetti. (See

Doc. No. 9-1 at 24–25 (“Discovery will reveal in this case plaintiff did not provide services to a

government or an instrumentality of the government. Although the University is recognized as a state

actor for purposes a [sic] Section 1983 liability, it is not identified as a government or an agency of the

Commonwealth by the Pennsylvania Supreme Court. To the contrary, Penn State University is a private

corporate identity, not government . . . . The doctrine which limits the constitutional protections

guaranteed by the First Amendment to public employee speech in the context of employment with the

government does not apply here.” (footnotes omitted))). But Fenchak simultaneously contends that the

University is a state actor subject to liability under § 1983. (Id.) He cannot have it both ways. If the

University is a state actor under § 1983, then it is also a public employer for purposes of the First

Amendment. Nothing in the cases cited by Fenchak alters that conclusion. Indeed, although the

Pennsylvania Supreme Court has found the “board of trustees of PSU is not governmental in nature” for

tax purposes, see Pa. State Univ. v. Derry Twp. Sch. Dist., 731 A.2d 1272, 1275 (Pa. 1999), the Third

Circuit and district courts in this Circuit have consistently recognized the University’s public nature when

it comes to § 1983 and claims for retaliation under the First Amendment, see, e.g., Am. Future Sys., Inc.

v. Pa. State Univ., 752 F.2d 854, 861 n.24 (3d Cir. 1984) (“Of course, the [F]irst [A]mendment would not

even be implicated if Penn State were not a ‘state actor’ for purposes of the [F]irst [A]mendment.”);

Nelatury v. Pa. State. Univ., 633 F. Supp. 3d 716, 729 (W.D. Pa. Oct. 3, 2022) (finding university

professor “works at PSU, so he is a public employee” and applying Garcetti). The issue here is whether

Fenchak, who was elected by University alumni to serve on the Board, is more appropriately considered

an employee or an elected official of the University, which again, is a public entity for purposes of this

lawsuit. This is the issue that the parties have yet to meaningfully brief.

10 Any future motion should address the cases discussed by the Court in this Memorandum.

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