Winter, T. v. The Pennsylvania State University ( 2020 )

J-A25018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DR. THOMAS WINTER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THE PENNSYLVANIA STATE : No. 745 MDA 2020
UNIVERSITY :
Appeal from the Order Entered March 20, 2020
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
8789 of 2016
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 30, 2020
Appellant, Dr. Thomas Winter, appeals from the March 20, 2020 order
granting summary judgment in favor of The Pennsylvania State University
(“Penn State”). We affirm.
The record demonstrates that, for 38 years, Penn State employed
Appellant as a tenured professor of physics in the Eberly College of Science at
Penn State’s Wilkes-Barre Campus in Lehman, Pennsylvania, Luzerne County.
Effective November 20, 2014, Penn State terminated Appellant from his
employment for “grave misconduct” stemming from Appellant’s alleged sexual
harassment of an undergraduate student.
Appellant filed a complaint on August 23, 2016, and an amended
complaint on October 4, 2016, against Penn State that raised a claim for
breach of contract related to his alleged unlawful termination and Penn State’s
J-A25018-20
alleged failure to act in good faith throughout the termination process. Penn
State filed preliminary objections in the nature of a demurrer to Appellant’s
amended complaint, which the trial court overruled. Penn State subsequently
filed an answer containing new matter to Appellant’s amended complaint.
On July 18, 2019, Penn State filed a motion for summary judgment,
arguing, “Penn State followed its policy and process for dismissal of tenured
faculty members when it terminated [Appellant]” and “[u]nder Pennsylvania
law, [Appellant] is not entitled to re-litigate the merits of that decision[.]” See
Penn State’s Motion for Summary Judgment, 7/18/19, at ¶ 70. On December
12, 2019, the trial court entertained argument on Penn State’s motion for
summary judgment. On March 20, 2020, the trial court, concluding that Penn
State acted in good faith and complied with its stated policies and procedures
for the dismissal of a tenured faculty member, entered an order granting
summary judgment in favor of Penn State.1 This appeal followed.
Appellant raises the following issue for our review:
Did the trial court commit an error of law by granting [Penn
State’s] motion for summary judgment, where a genuine issue of
material fact exists with respect to whether [Penn State] failed to
conduct the termination process and contractually agreed upon
procedures as set forth in [Penn State’s] polices, [specifically]
HR-70[] and [AD]-85, in good faith as required by Pennsylvania
law?
Appellant’s Brief at 4 (extraneous capitalization omitted).
____________________________________________
1 The trial court also filed an opinion on March 20, 2020.
-2-
J-A25018-20
Appellant’s issue challenges the trial court’s order granting summary
judgment, for which our standard and scope of review are well-settled.
A reviewing court may disturb the order of the trial court only
where it is established that the [trial] court committed an error of
law or abused its discretion. As with all questions of law, our
review is plenary.
In evaluating the trial court's decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. [See] Pa.R.C[iv].P. 1035.2. [Rule
1035.2] states that where there is no genuine issue of material
fact and the moving party is entitled to relief as a matter of law,
summary judgment may be entered. Where the non-moving
party bears the burden of proof on an issue, he may not merely
rely on his pleadings or answers in order to survive summary
judgment. Failure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which it bears
the burden of proof establishes the entitlement of the moving
party to judgment as a matter of law. Lastly, we will view the
record in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of material fact
must be resolved against the moving party.
Murphy v. Duquesne Univ. of The Holy Ghost, 777 A.2d 418, 429 (Pa.
2001) (case citations, ellipses, and quotation marks omitted) (rejecting the
“need or reason to devise special rules for restricting review” of a dispute
involving an institution of higher learning in a breach of contract case).
In a cause of action alleging a breach of contract, the plaintiff must
prove: “(1) the existence of a contract, (2) a breach of a duty imposed by the
contract, and (3) damages.” Sullivan v. Chartwell Inv. Partners, LP, 873
A.2d 710, 716 (Pa. Super. 2005) (citation omitted). In evaluating whether a
party is entitled to summary judgment, this Court must first determine the
-3-
J-A25018-20
terms of the contract, for which the principles of law that control this
determination are well-settled.
The fundamental rule in interpreting the meaning of a contract is
to ascertain and give effect to the intent of the contracting parties.
The intent of the parties to a written agreement is to be regarded
as being embodied in the writing itself. The whole instrument
must be taken together in arriving at contractual intent. Courts
do not assume that a contract's language was chosen carelessly,
nor do they assume that the parties were ignorant of the meaning
of the language they employed. When a writing is clear and
unequivocal, its meaning must be determined by its contents
alone.
Only where a contract's language is ambiguous may extrinsic or
parol evidence be considered to determine the intent of the
parties. A contract contains an ambiguity if it is reasonably
susceptible of different constructions and capable of being
understood in more than one sense. This question, however, is
not resolved in a vacuum. Instead, contractual terms are
ambiguous if they are subject to more than one reasonable
interpretation when applied to a particular set of facts. In the
absence of an ambiguity, the plain meaning of the agreement will
be enforced. The meaning of an unambiguous written instrument
presents a question of law for resolution by the court.
Murphy, 777 A.2d at 429-430 (citations and quotation marks omitted).
Here, Appellant, in sum, argues that a genuine issue of material fact
exists as to whether Penn State followed the policies and procedures outlined
in “Penn State Human Resources Policy HR-70 Dismissal of Tenured or
Tenure-Eligible Faculty Members” (“HR-70”) in good faith when Penn State
terminated Appellant’s employment. Appellant’s Brief at 12-24. Specifically,
Appellant asserts that Penn State deviated from the procedures, as set forth
in HR-70, when Kenneth Lehrman, Vice President for Affirmative Action and
Title IX Coordinator, (“Lehrman”) conducted what Appellant characterized as
-4-
J-A25018-20
an “ambush interview” after Lehrman received a complaint of sexual
harassment involving Appellant and did not provide Appellant notice of the
allegations prior to the meeting. Id. at 14-15. Appellant contends the trial
court erred when it concluded that the “ambush interview” was not part of the
formal termination proceedings, as set forth in HR-70, because the meeting
was investigatory in nature. Id. at 16. Rather, Appellant argues that the
meeting was the initial first step in the termination process, that the interview
failed to comply with the requirements set forth in HR-70, and that Penn State,
therefore, did not act in good faith when it deviated from the requirements
set forth in HR-70. Id. at 17. Appellant also contends that Penn State did
not act in good faith during Appellant’s meeting with Marilyn L. Hanes, Vice
President for Commonwealth Campuses and Dean of University College,
(“Hanes”) and Daniel J. Larson, Dean of the Eberly College of Science,
(“Larson”) subsequent to his “ambush interview” with Lehrman when Hanes
and Larson failed to question Appellant about the “apparent conflict between”
Lehrman’s report pertaining to the sexual harassment allegations 2 and
Appellant’s written rebuttal of the allegations. Id. at 18. Appellant also
asserts that a genuine issue of material fact exists as to whether Penn State
acted in good faith in conducting the Standing Joint Committee on Tenure
____________________________________________
2 On May 12, 2014, Lehrman wrote the Chancellor of Penn State’s
Wilkes-Barre Campus to report his conclusions after conducting an
investigation into the sexual harassment allegations and to recommend that
Penn State initiate dismissal proceedings against Appellant. See Penn State’s
Motion for Summary Judgment, 7/18/19, at “Doc. 8”, pages 239-244.
-5-
J-A25018-20
(“SJCT”) termination hearings because the chairperson of the SJCT was
“inadequately trained and [had] a conflict of interest with a witness.” Id. at
19-22. Finally, Appellant submits that a genuine issue of material fact exists
as to whether Penn State acted in good faith when the Office of the Provost,
having “just received the SJCT’s report [recommending Appellant’s
termination] the day before, already had a draft termination letter prepared
to forward to [Eric J. Barron, President of Penn State, (“Barron”)] for his
‘review and signature’.” Id. at 23.
Penn State asserts that the trial court correctly determined that the
termination proceedings contemplated by HR-70 were not initiated by
Lehrman’s meeting with Appellant. Penn State’s Brief at 15-17. Instead, Penn
State argues that the May 22, 2014 letter from Hanes to Appellant initiated
the termination proceedings pursuant to HR-70.3 Id. Penn State contends,
it is unreasonable to construe the process of investigating possible
misconduct as constituting part of the HR[-]70 dismissal process.
This is apparent from any reasoned interpretation of HR[-]70.
Indeed, to suggest otherwise would mean that the provisions of
HR[-]70 apply even when an investigation results in no finding of
misconduct sufficient to warrant the initiation of dismissal
proceedings.
____________________________________________
3 Following receipt of Lehrman’s report of May 12, 2014, Hanes sent a letter
to Appellant dated May 22, 2014 entitled “Notice of Initiation of Process for
Dismissal from University Employment”. Penn State’s Motion for Summary
Judgment, 7/18/19, at Exhibit J. This letter gave Appellant notice of the
initiation of the dismissal process pursuant to HR-70 and the reasons for
seeking his dismissal. The letter also advised Appellant of his right to respond
in writing, at a meeting, or both. Appellant chose both.
-6-
J-A25018-20
Id. at 16. Penn State maintains that Appellant’s termination complied with
the requirements set forth in HR-70 and that Appellant is attempting to
“secure a de novo judicial review of the merits of his termination under the
guise of a good faith argument.” Id. at 18 (citation omitted).
The trial court set forth its rationale for granting summary in favor of
Penn State as follows:
There is no dispute between the parties that the "contract” at issue
in this matter is [HR-70,] which was in effect at the time of
[Appellant’s] termination from employment by [Penn State.]
There is also no dispute that, under Pennsylvania Law, [Appellant]
is "not entitled to litigate the merits of his termination in this
breach of contract action, the question of whether his misconduct
should have resulted in the forfeiture of tenure having been
conclusively and finally decided" as a result of the process
conducted pursuant to HR-70. [See Murphy, 777 A.2d at 434.]
...
[Appellant] argues that [Penn State] failed to comply with HR-70's
terms in two ways: (1) The conducting of an "ambush interview"
of [Appellant] by [Lehrman] and (2) A breach of the "duty of good
faith" in [Penn State’s] “performance" of the contract.
It is undisputed that when [Appellant] was summoned to the office
of Albert Lozano, [] Director of Academic Affairs at Penn State's
Wilkes-Barre Campus, [(“Lozano”)] on March 20, 2014, he was
given no advance notice that he was going to be interviewed by
[] Lehrman regarding the allegations of sexual harassment that
had been [leveled] against him. [Appellant] asserts that this
"ambush interview" violated the HR-70 process[,] which required
that [Appellant] be "provided with written notice from the
administrator(s) of the alleged misconduct." [Penn State]
counters that the notice provisions of HR-70 were not implicated
until the "dismissal process" was initiated and that [] Lehrman's
interview of [Appellant] was part of the "investigation" process
that was being conducted in an effort to determine whether [Penn
State] should pursue a termination of [Appellant’s] employment[,]
or not. Upon a close reading of HR-70, the [trial c]ourt agrees
-7-
J-A25018-20
with [Penn State] that the notice provision of HR-70 does not
apply to an "investigatory process" but, rather, to the "initiation
of dismissal process" should an investigation warrant it. In the
present case, the [trial c]ourt concludes that the event that
triggered the applicability of HR-70's notice and subsequent
procedures was the post-investigation decision encompassed in
the May 22, 2014 letter from [] Hanes to [Appellant] entitled
"Notice of Initiation of Process for Dismissal from University
Employment."
With the exception of [] Lehrman's initial interview, [Appellant]
does not seriously question whether the other procedures set forth
in HR-70 were followed, rather he asserts that they were not
conducted in "good faith." As the Murphy Court stated, "when
an employer expressly provides in an employment contract for a
comprehensive evaluation and review process, a court may look
to the employer[’]s good faith to determine whether the employer
has[,] in fact[,] performed those contractual duties." Murphy,
777 A.2d at 434, quoting Baker v. Lafayette, 504 A.2d 247, 255
(Pa. Super. []1986). "The duty of good faith has been defined as
honesty in fact in the conduct or transaction concerned." Creeger
Brick and [Bldg.] Supply, Inc. v. Mid-State Bank and Trust
Co., 560 A.2d 151, 153 (Pa. Super. []1989). A review of the
entire record, including [Appellant’s] Answer and Exhibits in
response to [Penn State’s] Motion for Summary Judgment, leaves
the [trial c]ourt little doubt that [Penn State] carefully and
precisely followed the process set forth in HR-70 and that no
genuine issue of material fact has been raised by [Appellant] on
which a jury could reasonably conclude that [Penn State] did not
act in "good faith."
Trial Court Opinion, 3/20/20, at 3-6 (original ellipses and original brackets
omitted).
In order to address the merits of Appellant’s issue, we must first look at
the requirements set forth in HR-70 to determine the obligations of the parties
involved. HR-70 states, in pertinent part, as follows:
PURPOSE:
-8-
J-A25018-20
This policy is written to define the conditions and procedures
under which tenured faculty members . . . may be dismissed from
[Penn State] on grounds of adequate cause[.]
...
ADEQUATE CAUSE:
A tenured [] faculty member may be dismissed for adequate cause
as determined in accordance with this policy. Adequate cause
shall mean any one of the following: (i) lack of competence or
failure to perform in relation to the functions required by the
appointment, (ii) excessive absenteeism, (iii) moral turpitude, or
(iv) grave misconduct. . . .
INITIATION OF DISMISSAL PROCESS
A. The Steps That Shall be Followed to Initiate the
Dismissal Process
1. Within a reasonable time after the occurrence of events that
might give rise to termination for adequate cause are made
known to the appropriate administrator(s), the faculty
member will be provided with written notice from the
administrator(s) of the alleged misconduct constituting
adequate cause. The notice shall include a copy of or
references to this HR-70 policy and sufficient information
concerning the allegations to enable the faculty member to
make a meaningful response.
2. The faculty member will be given an opportunity to respond
to the allegations either in writing or at a meeting with the
appropriate administrator(s), or both, at the discretion of
the faculty member against whom allegations of misconduct
have been made. The affected faculty member shall be
accorded a reasonable amount of time to prepare a
response to the allegations.
3. The faculty member shall have the opportunity to meet with
the appropriate administrator(s) and he or she will be given
an explanation of the alleged misconduct. The
administrator, at his or her discretion, may respond to the
written submissions of the faculty member at this meeting.
The appropriate ombudsman shall be present as an
objective, informational resource at the meeting unless the
faculty member waives, in writing, the right to have the
-9-
J-A25018-20
ombudsman present. The meeting may be continued at the
discretion of the administrator(s) should there be a need for
additional time to resolve the matter or to obtain additional
information or otherwise for other good cause.
4. Following this meeting, the faculty member will again be
given an opportunity to respond in writing to the
administrator(s).
B. Process After Initial Meeting
The purpose of the meeting(s) and responses listed above is to
provide both parties with an understanding of the other party's
position, as well as an opportunity to settle the matter without
formal action.
1. If after the initial meeting an agreement is reached between
the appropriate administrator(s) and the faculty member,
then the matter will be resolved in accordance with the
agreement.
2. If after the initial meeting(s) the matter remains
unresolved, the appropriate administrator(s) may choose to
dismiss the matter if no serious concerns remain regarding
the faculty member's alleged misconduct. If serious
concerns remain, the appropriate Dean will consult with the
Executive Vice President and Provost about what further
action, if any, should be taken.
C. Referral to Standing Joint Committee on Tenure
If both the Dean and the Executive Vice President and Provost
concur that the disciplinary sanction of termination for adequate
cause is warranted under the circumstances, the matter will be
referred to the Standing Joint Committee on Tenure. The Dean
will promptly advise the faculty member of that determination in
writing by letter addressed to the affected faculty member and the
Standing Joint Committee on Tenure. The Dean's letter shall set
forth the specific basis for seeking adequate cause termination
and the specific conduct which serves as the basis for the
termination. Such written notification will advise the faculty
member that the matter will be referred to the Standing Joint
Committee on Tenure, unless the faculty member requests the
opportunity to resign in lieu of termination.
...
- 10 -
J-A25018-20
E. Burden of Proof
The burden of proof that adequate cause exists for the dismissal
of the faculty member [] rests with [Penn State] and shall be
satisfied only by clear and convincing evidence in the record
considered as a whole.
STANDING JOINT COMMITTEE ON TENURE:
 Role of the Committee
The Standing Joint Committee on Tenure acts solely in an
advisory capacity to the President on matters pertinent to
the dismissal of tenured [] faculty. It holds hearings to
receive evidence and adjudicate the matter and to provide
the President with a reasoned opinion and recommendation
for action with respect to the request to dismiss a faculty
member. The Standing Joint Committee on Tenure shall
exercise its obligations in accordance with the procedural
rules described in this HR-70.
 Establishment of the Committee
The Standing Joint Committee on Tenure shall consist of five
members: two members selected by the administration, and
three tenured faculty members selected by the elected
faculty members of [Penn State’s] Senate. The Chair will
be chosen by the Committee from the elected tenured
faculty members.
 Committee Procedural Rules
1. Preliminary Evaluation. The Standing Joint
Committee on Tenure will first evaluate whether or not
the charges of misconduct described in the Dean's letter,
if true, constitute adequate cause for dismissal. If the
Committee rules that the charges, taken as true, do not
constitute adequate cause for dismissal, the Committee
will issue a pre-hearing report, recommending to the
President that no further proceedings occur. If the
President agrees with the Committee's pre-hearing
report, he or she will terminate the dismissal process.
However, should the President disagree with this initial
determination, he or she shall so notify the Standing
Joint Committee on Tenure and the Standing Joint
- 11 -
J-A25018-20
Committee on Tenure shall, promptly upon receipt of this
notice, conduct the hearing described below.
Should the Standing Joint Committee on Tenure rule that
the charges may, if proven, constitute adequate cause
for dismissal, the hearing will be conducted and all
parties will be notified in writing.
2. Commencement of Hearing. The faculty member
against whom dismissal is sought shall have the
opportunity to be heard and present his or her own
defense before the Standing Joint Committee on Tenure.
The Standing Joint Committee on Tenure shall convene a
hearing within sixty (60) days, if reasonably possible,
after the date of the Dean's letter referring the matter to
the Committee. The hearing shall be limited to the
matters described in the letter relating to the grounds on
which termination of the faculty member is sought.
Except in extenuating circumstances and subject to the
concurrence of both parties, all members of the
Committee must be present when the Committee meets
at the hearing, including any continuance of the hearing,
and during all deliberations of the Committee in
connection with the hearing.
...
4. Presiding Official. The Committee Chair shall conduct
the hearing and the subsequent deliberations of the
Committee.
...
12. Committee Recommendations. At the conclusion of
the hearing, the Committee shall close the record and
meet in executive session, along with the Committee's
legal advisor, in order to deliberate. There shall be no
post-hearing submissions by either party, unless directed
by the Committee. The Committee shall issue a report
on the hearing to the President, with a copy to the faculty
members and the appropriate Dean, within 30 days from
the date of completion of the hearing, unless extenuating
circumstances require otherwise. The report shall set
forth the Committee's findings based on the evidence
presented at the hearing and its recommendation with
respect to termination for adequate cause. Where the
- 12 -
J-A25018-20
conclusion of the Committee is not unanimous, the report
must fairly reflect the minority views expressed by the
members. Dissenting or concurring opinions may be
included at the request of any Committee member.
13. Final Decision by President. The President shall be
the final decision-maker in all cases considered by the
Standing Joint Committee on Tenure. The President shall
notify the faculty member, the Standing Joint Committee
on Tenure, and the appropriate Dean of his or her
decision in writing. Once the President has made a final
determination as to whether adequate cause for
termination exists, the matter shall be closed and not
subject to further review.
Appellant’s Amended Complaint, 10/4/16, at Exhibit “A”.
Here, the record demonstrates that on March 3, 2014, a “Penn State
Sexual Harassment/Discrimination/Violence Report Form” was filed with Penn
State administration on behalf of an undergraduate student and against
Appellant alleging that Appellant sexually harassed the student in violation of
Penn State’s “Policy AD85 - Discrimination, Harassment, Sexual Harassment
and Related Inappropriate Conduct” (“AD-85”).4 See Appellant’s Amended
Complaint, 10/4/16, at ¶¶ 8, 24, 37; see also Penn State’s Motion for
Summary Judgment, 7/18/19, at “Doc. 7”, pages 234-237. On March 20,
2014, Lozano arranged, via an email,5 for Lehrman, who was responsible for
____________________________________________
4 AD-85 defines “sexual harassment” as “unwelcome sexual advances,
requests for sexual favors, and other verbal or physical conduct of a sexual
nature that is unwanted, inappropriate, or unconsented to.” See Appellant’s
Amended Complaint, 10/4/16, at Exhibit “B”.
5 Lozano’s email to Appellant stated, “I need to talk with you regarding an
academic matter. I will appreciate if you can come to see me tomorrow[,
- 13 -
J-A25018-20
investigating sexual harassment complaints,6 to meet with Appellant the next
day, but did not himself take part in the meeting. On May 12, 2014, Lehrman
authored a report to the Chancellor of Penn State’s Wilkes-Barre Campus,
recommending that dismissal proceedings be initiated against Appellant in
connection with the sexual harassment allegations. On May 22, 2014, Hanes
provided Appellant written notice that Penn State was initiating the process
for dismissal of Appellant from his employment. The letter, in pertinent part,
stated, “In accordance with the provisions of [HR-70], a copy of which is
enclosed, I am writing to advise you that this letter initiates the process for
your possible dismissal from [Penn State] employment, including your tenured
faculty appointment.” See Hanes Letter, 5/22/14, at unnumbered page 1.
The letter advised Appellant that he could respond to the notice either in
writing, or at a meeting with Hanes, or both. Id. Appellant filed a written
response to Hanes’s letter on June 17, 2014, and met with Hanes and Larson
on July 3, 2014. Thereafter, Hanes and Larson authored a joint letter to the
SJCT on August 11, 2014, recommending that Penn State terminate
____________________________________________
Friday, March 21, 2014.] See Appellant’s Brief in Opposition to [Penn State’s]
Motion for Summary Judgment, 12/4/19, at Exhibit “C”.
6 AD-85 states that “concerns about conduct by an employee [] that may
violate this policy” should be reported to Lehrman. See Appellant’s Amended
Complaint, 10/4/16, at Exhibit “B”.
- 14 -
J-A25018-20
Appellant’s employment.7 On August 28, 2014, the SJCT notified Appellant
that it was conducting a preliminary evaluation of the sexual harassment
allegations and possible termination of Appellant’s employment. The letter
also notified Appellant that a hearing on the matter was set for September 16,
2014, and October 1, 2014. On September 9, 2014, the SJCT notified
Appellant that after conducting a preliminary evaluation, it determined there
was cause for termination if the allegations were substantiated. After
conducting a hearing on the matter, at which Appellant was present,
represented by counsel, and able to offer witness testimony and other
evidence in his defense, the SJCT set forth its findings of fact and conclusions
in a letter to Barron, Penn State’s President, recommending the termination
of Appellant’s employment. On November 20, 2014, Barron notified Appellant
that his employment with Penn State was terminated effective immediately.
Based upon a review of the record, we concur with the trial court that
no genuine issue of material fact existed as to whether Penn State acted in
good faith and followed the policies and procedures as set forth in HR-70 when
it terminated Appellant’s employment. It is axiomatic that prior to initiating
any formal proceedings or charges against Appellant, Penn State needed to
perform due diligence in determining the veracity of the sexual harassment
allegations. To do otherwise, and accept the allegations of sexual harassment
____________________________________________
7 Nicholas P. Jones, Penn State’s Executive Vice President and Provost,
concurred in the recommendation set forth in the joint letter to the SJCT.
- 15 -
J-A25018-20
on their face and immediately begin formal termination proceedings without
first performing an investigation into the veracity of the allegations, could
irrevocably damage a person’s reputation, both professionally and personally,
if the allegations were proven false, and could lead to the potential for false
accusations being brought by a student as a retaliatory action for
dissatisfaction with a faculty member.
Appellant argues that the notice of the alleged misconduct constituting
adequate cause of dismissal of a tenured faculty member “shall include a copy
of or reference to [the] HR-70 policy and sufficient information concerning
the allegations to enable the faculty member to make a meaningful
response.” Appellant’s Brief at 16 (original emphasis omitted, emphasis
added). In so arguing, Appellant implies that Penn State is required to
formulate a substantiated, independent basis, i.e. “sufficient information
concerning the allegations,” upon which to articulate its position. Because
Penn State must have “sufficient information concerning the allegations” in
order to articulate its position on the alleged misconduct constituting adequate
cause for dismissal, Appellant and the HR-70 policy tacitly recognize that
investigation prior to notice is essential. Initiating formal termination
proceedings without first conducting an investigation is analogous to charging
a defendant with a crime before the police investigate and obtain evidence of
culpability.
Here, prior to beginning formal termination proceedings pursuant to
HR-70, Lehrman, who was charged with investigating allegations of sexual
- 16 -
J-A25018-20
harassment, performed an investigation into the sexual harassment
allegations brought against Appellant by, inter alia, meeting with Appellant
and speaking with other individuals. Subsequent to the conclusion of
Lehrman’s investigation, Hanes, Dean of University College, provided
Appellant with written notice of the sexual harassment allegations and
provided Appellant with a copy of HR-70, pursuant to Step A(1) of the
“Initiation of Dismissal Process” section of HR-70. We concur with the trial
court that there is no genuine issue of material fact “that the event that
triggered the applicability of HR-70's notice and subsequent procedures was
the post-investigation decision encompassed in the May 22, 2014 letter from
[] Hanes to [Appellant] entitled ‘Notice of Initiation of Process for Dismissal
from University Employment.’"
The essence of Appellant’s argument is not that Penn State
unreasonably delayed notice of the alleged misconduct that gave rise to the
adequate cause to initiate termination proceedings but, rather, that the notice
should have preceded the March 21, 2014 meeting between Lehrman and
Appellant. Appellant’s Brief at 12-17 For the reasons discussed supra, HR-70
required Penn State to investigate the veracity and circumstances of the
sexual harassment allegations, first, in order to gain “sufficient information
concerning the allegations” and then to apprise Appellant, in a HR-70 notice,
of Penn State’s position and to provide Appellant an opportunity to respond.
Compliance with HR-70 is achieved so long as notice is sent within a
reasonable time after an appropriate administrator learns of the “adequate
- 17 -
J-A25018-20
cause” event. See HR-70 at § A(1). HR-70 does not require that notice be
sent to the faculty member before a first or subsequent investigative
interaction, such as the meeting between Lehrman and Appellant.
Here, Lehrman met with Appellant as part of the investigative process
on March 21, 2014. Lehrman composed a report based upon his investigation
recommending that termination proceedings be initiated against Appellant and
sent that report to Hanes on May 12, 2014. Hanes subsequently provided
Appellant with notification pursuant to HR-70 on May 22, 2014. Ten days
elapsed between Lehrman’s report substantiating the occurrence of events
that might give rise to termination for adequate cause and Hanes’s HR-70
notice, a time period which certainly complies with the requirement that HR-70
notice be provided “within a reasonable time after the occurrence of events
that might give rise to termination for adequate cause are made known to
the appropriate administrator[.]”
We further concur with the trial court that no genuine issue of material
fact exists as to whether Penn State acted in good faith in performing its
contractual obligations pursuant to HR-70. Appellant contends that Penn
State acted in bad faith because (1) Hanes and Larson failed to question him
about the conflicts between the sexual harassment allegations, as stated in
Lehrman’s report to the Chancellor, and his version of events, as set forth in
his response letter, (2) the SJCT chairperson was inadequately trained and
had a conflict of interest, both of which, Appellant asserts, prevented the
faculty member from serving as the chair, and (3) a draft of Appellant’s
- 18 -
J-A25018-20
termination letter was prepared the day after the SJCT sent its
recommendation to Penn State’s president. With regard to Appellant’s first
contention, HR-70 states that “[t]he administrator, at his or her discretion,
may respond to the written submissions of the faculty member at the meeting”
and the purpose of the meeting was “to provide both parties with an
understanding of the other party’s position[.]” See HR-70 at §§ A(3) and B
(emphasis added). There is no requirement that the administrators, in this
case Hanes and Larson, were required to discuss the merits of the allegations
or Appellant’s response. The purpose of the meeting was to make Appellant
aware of Penn State’s position on the matter.
Regarding the qualifications for the chairperson of the SJCT, HR-70
states that the SJCT “shall consist of five members: two members selected by
the administration, and three tenured faculty members selected by the elected
faculty members of [Penn State’s] Senate. The Chair will be chosen by [the
SJCT’s members] from the elected tenured faculty members.” See HR-70 at
“Establishment of the Committee.” HR-70 does not set forth any qualifications
necessary for a tenured faculty member to be elected as chair of the SJCT
other than the requirement that the person must be one of the three tenured
faculty members elected by Penn State’s Senate to the SJCT and cannot be
one of the two members selected by the administration.8 Id.
____________________________________________
8 We, furthermore, find no record support for Appellant’s bald assertion that
the chair was unqualified to serve in this position because one of the witnesses
- 19 -
J-A25018-20
Finally, Appellant’s allegation that a termination letter was drafted for
review by Penn State’s president within one day of receiving the SJCT’s
recommendation to terminate Appellant’s employment does not give rise to a
genuine issue of material fact as to whether Penn State acted in good faith.
Given the seriousness of sexual harassment allegations and the need to
remove harassers where adequate cause for termination has been found, the
speed in which Penn State acted on this matter by drafting a termination letter
for the president’s review does not amount to an act of bad faith. Rather,
given the urgency with which such matters are to be resolved, as
demonstrated by the time restrictions set forth in HR-70, Penn State’s quick
action in drafting the termination letter amounts to a good faith effort to bring
resolution to the matter.
In viewing the evidence in the light most favorable to Appellant, as the
non-moving party, the evidence demonstrates that Penn State properly
initiated the dismissal proceedings via Hanes’s May 22, 2014 letter, and that
Penn State, in good faith, followed the policies and procedures outlined in
HR-70. Therefore, Appellant failed to demonstrate the existence of a genuine
issue of material fact.
____________________________________________
was the chairperson’s “boss’s boss.” The SJCT is comprised of five members
who are tasked with making a joint recommendation to Penn State’s
president, who is ultimately the final decision-marker, regarding the potential
termination of the faculty member’s employment. Here, the SJCT’s
recommendation to terminate Appellant’s employment was unanimous.
- 20 -
J-A25018-20
Based upon a review of the record, we discern no error of law or abuse
of discretion in the trial court’s order granting summary judgment in favor of
Penn State.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2020
- 21 -