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Date: 08-22-2024
Case Style:
Jeffrey Krug v. Bloomsburg Univesity, et al.
Case Number: 4:18-CV-1669
Judge: Jennifer Wifson
Court: United States District Court for the Middle District of Pennsylvania (Lycoming County)
Plaintiff's Attorney:
Defendant's Attorney: Christine C. Einerson, Jonathan M. Blake, Karen Mascio Romano, Keli M. Neary, Laren E. Sulcove
Description:
Williamsport, Pennsylvania civil rights wrongful termination retaliation lawyer represented the Plaintiff.
Jeffrey Krug, formoer dean of the Zeighler College of Business and a tenured faculty member claimed that he was wrongfully terminated in 2018.
Defendant Bloomsburg University (“BU”) is an institute of higher education under the control and operation of the Commonwealth of Pennsylvania by virtue of its membership in Defendant Pennsylvania State System of Higher Education (“PASSHE”). (Doc. 80, ¶ 1.) Plaintiff Dr. Jeffrey Krug (“Dr. Krug”) was Dean of the College of Business at BU beginning June 1, 2015. (Id. ¶ 2.) In July 2017, Defendant Bashar Hanna (“President Hanna”) was named the new president of BU. (Id. ¶ 4.) In the fall of 2017, Defendant James Krause (“Krause”) was the interim provost at BU. (Id. ¶ 3.)
During the time period at issue, Judy Rostucher (“Rostucher”) was Dr. Krug's administrative assistant and Angela Crossley (“Crossley”) was President Hanna's administrative assistant. (Id. ¶ 5.) During the 2017-2018 academic year, Robert Wislock (“Wislock”) was BU's Title IX Coordinator. (Id. ¶ 6.) Terry and JoAnn Zeigler were benefactors of BU, and the business school is formally named after them as the Terry and JoAnn Zeigler College of Business. (Id. ¶ 7.) President Hanna asked Terry Zeigler to serve as Dr. Krug's executive coach and Dr. Krug was permitted to discuss business concerns with Terry Zeigler in this context. (Id. ¶ 8.) Andrew Lehman (“Chief Counsel Lehman”) was chief counsel for PASSHE from July 2013 until April 2022. (Id. ¶ 9; Doc. 89, ¶ 9.)
On September 14, 2016, then-President of BU, David Soltz, granted Dr. Krug tenure in accordance with Article 15 of the agreement between the Association of Pennsylvania State College and University Faculties and PASSHE (“Agreement”). (Doc. 80, ¶ 10.) Article 15 of the Agreement provides that “[t]enure shall mean the right of a FACULTY MEMBER to hold his/her position and not to be removed therefrom except for just cause as hereinafter set forth in this Article or except as provided elsewhere in this Agreement.” (Id. ¶ 11.)
While these facts are undisputed, factual disputes arise as to whether Dr. Krug was a tenured or an at-will employee because Dr. Krug was not assigned an academic rank or appointed as a faculty member. (Doc. 89, ¶ 11, 122-23; Doc. 96, ¶ 123.) On March 9, 2018, President Hanna wrote a letter to Dr. Krug stating that Dr. Krug was an at-will employee. (Doc. 80, ¶ 12.)
On October 30, 2017, Crossley reported to Dr. Robert Dampman, a member of the University Council of Trustees, that President Hanna had touched her inappropriately, that Hanna was making sexual advances, and that he retaliated against her when she rebuffed him. (Id. ¶ 15.) Crossley also confided in Rostucher that President Hanna touched her inappropriately and Rostucher reported these allegations to Dr. Krug. (Id. ¶ 16.) Dr. Krug and Dr. Dampman later discussed Crossley's allegations. (Id. ¶ 17.)
On November 11, 2017, Dr. Krug phoned Terry Zeigler, who put the call on speakerphone while with his wife, JoAnn. (Id. ¶ 18.) During the call, Dr. Krug advised Terry Zeigler that President Hanna may be seeking to return the Zeiglers' donation and also that a female subordinate of President Hanna's was alleging that President Hanna engaged in inappropriate behavior with her. (Id.) Several details of this call, including whether identifying information about the complainant was revealed are disputed. (Id.; Doc. 89, ¶ 18.)
Dr. Krug's father, Alan Krug, has had a career in public policy and legislative consulting. (Doc. 80, ¶ 19.) Alan Krug was a lobbyist within the Pennsylvania legislature and was friendly with many legislators, including legislators who were PASSHE board members. (Id.) Dr. Krug spoke to his father about a woman coming to him with sexual harassment allegations and asked his father's advice. (Id. ¶ 20.) Several details of this call, including whether identifying information about the complainant was revealed are disputed. (Id.; Doc. 89, ¶ 20.) Alan Krug advised Dr. Krug to contact Angela Johnston (“Johnston”), Dr. Krug's sister, as she was Chief of Staff to the President at the College of Wooster and was trained and experienced with handling sexual harassment cases in a university setting. (Doc. 80, ¶ 21.)
Dr. Krug called Johnston and explained that a woman in his office advised that another woman at the institution was alleging sexual harassment. (Id. ¶ 22.) Several details of this call, including whether identifying information about the complainant was revealed are disputed. (Id.; Doc. 89, ¶ 22.) Johnston advised that as a result of Dr. Krug's position at BU, he was a mandated reporter because he was not a confidential resource, like a chaplain. (Doc. 80, ¶ 23.)
Having received this advice, Dr. Krug advised Crossley that he was a mandated reporter, and that if she did not report her allegations to Wislock, the Title IX Coordinator, Dr. Krug was obligated to do so. (Id. ¶ 26.) On November 13, 2017, Crossley, accompanied by Rostucher and Dr. Krug, went to the Title IX office and reported the sexual harassment allegations against President Hanna to Wislock. (Id. ¶ 27.) No official Title IX complaint was filed. (Id. ¶ 27.) PASSHE conducted an investigation into the sexual harassment allegations and concluded that Wislock did not properly handle Crossley's allegations because he should have immediately notified the state system that he received allegations against the University President. (Id. ¶ 32.)
Johnston advised Dr. Krug to provide her phone number to Crossley to call for advice if she wanted to, although Johnston did not know Crossley's name or job title. (Id. ¶ 34.) Dr. Krug complied. (Id. ¶ 35.) Crossley did call Johnston. (Id. ¶ 36.) Subsequently, Johnston spoke to Alan Krug and disclosed both Crossley's and President Hanna's identities in relation to the sexual harassment allegations. (Id. ¶ 38.)
In the months that followed, Dr. Krug and Rostucher felt that they were being retaliated against in numerous ways for assisting Crossley in reporting sexual harassment. (Id. ¶¶ 42-50.) Defendants dispute their involvement in the alleged retaliatory acts and the admissibility of statements about the actions. (Doc. 89, ¶¶ 42-50.) Dr. Krug and Rostucher went to Wislock to file a complaint alleging retaliation for assisting Crossley in making a Title IX complaint, asserting that Krause's and President Hanna's administrative assistants, at Krause's and/or President Hanna's direction, were spreading rumors that Dr. Krug and Rostucher were engaged in a sexual affair, thus creating a hostile work environment. (Doc. 80, ¶¶ 51-53.) William Helzlsouer was appointed by PASSHE to investigate Dr. Krug's and Rostucher's complaints of retaliation. (Id. ¶ 54.) Helzlsouer's report confirmed that rumors of a sexual affair were being spread, but also that there was insufficient evidence to trace the origination of the rumors back to Dr. Krug's and Rostucher's assistance of Crossley. (Id. ¶ 55; Doc. 89, ¶ 55; Doc. 81-36, pp. 5-6.)
On January 11, 2018, Dr. Krug received a letter from BU Human Resources director Jerry Reed informing him that PASSHE had initiated an investigation into Dr. Krug's conduct as Dean of the College of Business, to investigate “the disclosure of personnel matters not of public concern and information protected by the Family Education Rights and Privacy Act, among other issues.” (Doc. 80, ¶ 56.) Chief Counsel Lehman retained the law firm Ballard Spahr to act was investigators on PASSHE's behalf. (Id. ¶ 57.)
Dr. Krug received a letter in which he was directed to attend an interview with Olabisi Ladeji Okubadejo and Meredith Swartz Dante (“the Ballard Spahr attorneys”). (Id. ¶ 58.) Krause emailed Dr. Krug on January 12, 2018, advising him that failure to participate in the university investigation interview would result in discipline up to and including termination. (Id. ¶ 59.) The Ballard Spahr attorneys emailed Dr. Krug's counsel, Brian Caffrey, that Dr. Krug was required to attend the interview without counsel. (Id. ¶ 60.)
There was no notetaker or stenographer present to verify the accuracy of what the Ballard Spahr attorneys wrote down during any of the interviews they conducted, including Dr. Krug's interview. (Id. ¶ 67.) Ultimately, the Ballard Spahr attorneys authored a report of their findings (“the Ballard Spahr report”), concluding that Dr. Krug “made disclosures of private personnel information and confidential student information” to four individuals-“his father, J[oAnn] Zeigler, E. Evans, and N. Guiffre.” (Id. ¶ 68.) The Ballard Spahr attorneys did not interview Crossley, Alan Krug, or Johnston. (Id. ¶ 69.) The Ballard Spahr report indicates that Chris Jones, an attorney employed by PASSHE, was interviewed, but no summary of his interview was included. (Id. ¶¶ 70-71.) Dr. Krug contested allegations made by other individual during the Ballard Spahr attorneys' interviews and urged the attorneys to contact and interview John Braganini. (Id. ¶¶ 72-73.) The Ballard Spahr attorneys did not interview John Braganini. (Id. ¶ 74.) John Braganini's declaration directly refutes some information contained within the Ballard Spahr report. (Id. ¶ 75.)
PASSHE directed President Hanna to delegate decision-making authority regarding a personnel matter to someone else, as President Hanna needed to be walled off from the decision-making process. (Id. ¶ 76; Doc. 89, ¶ 76.) President Hanna chose Krause, who was the second ranking officer at BU. (Doc. 80, ¶ 77; Doc. 89, ¶ 76-77.)
Following the release of the Ballard Spahr final report on March 7, 2018, a pre-disciplinary conference (“PDC”) was scheduled for Dr. Krug on March 9, 2018. (Doc. 80 ¶ 78.) In advance of the PDC, Krause intended to send Dr. Krug a summary of the Ballard Spahr report, but inadvertently sent Dr. Krug the full Ballard Spahr report. (Id. ¶ 78; Doc. 89, ¶ 78.)
On March 8, 2018, before the PDC was held, Suzanne Williamson (“Williamson”), University Legal Counsel for PASSHE, emailed Krause suggested language for disciplining Dr. Krug. (Id. ¶ 102.) The suggested language related only to termination. (Id.) Defendants concede that Krause was “leaning toward” termination prior to the PDC. (Doc. 89, ¶¶ 102, 145-46.) Defendants assert that Krause wanted to hear what Dr. Krug had to say before making a final decision, however, and that Krause was merely planning for termination as a potential outcome. (Id. ¶¶ 102-03.) Later that evening, Krause emailed Williamson back, attaching “draft emails to four key constituencies on campus,” all of which announced Dr. Krug's termination, effective March 21, 2018. (Doc. 80, ¶¶ 10304.)
Krause, PASSHE Assistant Vice Chancellor for Employee and Labor Relations Lisa Sanno (“Ms. Sanno”), and Human Resources Specialist Aubry McConnell (“Ms. McConnell”) were present for Dr. Krug's PDC on March 9, 2018. (Doc. 80, ¶ 80.) During the PDC, Dr. Krug objected to Krause being appointed as arbiter because he felt Krause was not a disinterested party. (Id. ¶ 82.) Ms. Sanno interrupted Dr. Krug and directed him to focus on his actions rather than the actions of Krause and President Hanna. (Id. ¶ 83-84; Doc. 89, ¶ 83.) Dr. Krug continued to object to Krause's involvement throughout his PDC. (Doc. 80, ¶¶ 85-86.) Dr. Krug also objected to his inability to have counsel present at the PDC, noting that President Hanna was permitted to have counsel present at his PDC relating to Crossley's allegations, as Dr. Krug felt the process and this discrepancy was unfair. (Id. ¶ 87.)
During the PDC, Dr. Krug noted that he never spoke with his father or sister about Crossley's allegations after she reported the conduct to Wislock, so BU's policy prohibiting disclosure of such allegations did not apply, as no formal complaint had been made at the time he spoke with his father and sister. (Id. ¶¶ 88-91.) Dr. Krug noted the same as to conversations he had with Nick Giuffre and the Zeiglers. (Id. ¶¶ 92-93.) Following the PDC, Dr. Krug submitted a written memo to Krause, Ms. Sanno, and Ms. McConnell again objecting to Krause's involvement. (Id. ¶ 95.) Dr. Krug also attached an email sent to PASSHE Interim Chancellor Karen Whitney requesting that a new arbiter outside of BU be appointed. (Id. ¶ 96.) Chancellor Whitney did not respond, but Chief Counsel Lehman responded, indicating that no conflict of interest had been identified. (Id. ¶ 97.)
Because Dr. Krug complained about not having sufficient time prior to the PDC to review the Ballard Spahr report, Krause gave Dr. Krug until March 12, 2018 to review the report and provide a response. (Doc. 89, ¶ 143.) Dr. Krug submitted a ten-page written response to the Ballard Spahr report on March 12, 2018. (Id. ¶ 144.)
Dr. Krug received a letter from Krause terminating his employment at BU on March 21, 2018. (Id. ¶ 100.) Dr. Krug was walked off campus in front of faculty and staff during what he testified was the most humiliating day of his life. (Id. ¶ 101.) Following Dr. Krug's termination, BU circulated a two-page statement about his termination to the press, the students and faculty, presidents of PASSHE institutions, and to BU's Council of Trustees. The statement details the actions leading to Dr. Krug's termination and concludes that his “actions should be considered an act of wanton or willful disregard of the University's interests and the interests of the employee/student he disclosed information about.” (Doc. 81-37, p. 2.) The statement further states that Dr. Krug deliberately violated University policy, applicable law (FERPA), principles of confidentiality protections afforded to Title IX complaints and personnel matters, and disregarded standards of behavior, including compliance and leadership responsibilities as a Dean. (Id.) When searching for new employment, the circumstances of his termination, as well as the instant lawsuit, were cited as concerns by prospective employers. (Doc. 80, ¶¶ 111-16.)
Dr. Krug initiated this action by filing a complaint on August 22, 2018. (Doc. 1.) An amended complaint was filed on December 29, 2018. (Doc. 22.) The parties stipulated that Dr. Krug could again amend his complaint. (Doc. 53.) On July 8, 2019, Dr. Krug filed his second amended complaint, which is now the operative complaint. (Doc. 54.) Defendants filed an answer on July 18, 2019. (Doc. 57.) The case was reassigned to the undersigned on November 25, 2019.
The remaining claimsat issue in this case are: Count 1 - retaliation in violation of Title IX, 20 U.S.C. § 1981(a) et seq. against BU and PASSHE regarding Dr. Krug's assistance of Angela Crossley in making a Title IX complaint; Count 2 - retaliation in violation of Title IX, 20 U.S.C. § 1981(a) et seq. against BU and PASSHE regarding Dr. Krug's own complaint of retaliation to BU after assisting Angela Crossley; Count 3 - a violation of 42 U.S.C. § 1983 against President Hanna and Krause premised on retaliation in violation of the First Amendment; Count 4 - a violation of 42 U.S.C. § 1983 against President Hanna and Krause premised on a due process violation relating to Dr. Krug's tenure as a property interest; Count 5 - retaliation in violation of the Pennsylvania Whistleblower Law, 43 Pa.C.S. § 1421 et seq. against all Defendants; Count 7 -retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a) against BU and PASSHE regarding Dr. Krug's assistance of Angela Crossley in making a Title IX complaint; Count 8 - retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a) against BU and PASSHE regarding Dr. Krug's own complaint of retaliation to BU after assisting Angela Crossley; Count 9 - a violation of 42 U.S.C. § 1983 against President Hanna and Krause premised on a due process violation relating to Dr. Krug's reputation as a liberty interest; Count 11 - retaliation in violation of the Pennsylvania Human Rights Act, 43 Pa.C.S. § 955(d) against all Defendants regarding Dr. Krug's assistance of Angela Crossley in making a Title IX complaint; and Count 12 - retaliation in violation of the Pennsylvania Human Rights Act, 43 Pa.C.S. § 955(d) against all Defendants regarding Dr. Krug's own complaint of retaliation to BU after assisting Angela Crossley. (See Doc. 54, pp. 25-37.)
After reviewing Defendants' arguments on counts 6 and 10 of the second amended complaint, Dr. Krug did not contest the arguments and withdrew those claims. (Doc. 97, p. 62.)
Dr. Krug filed his motion for summary judgment, statement of material facts, exhibits, and brief in support on March 17, 2022. (Docs. 79-83.) Defendants filed their motion for summary judgment, statement of material facts, and brief in support on May 9, 2022. (Docs. 88-90.) The brief in support of Defendants' motion was also a brief in opposition to Dr. Krug's motion for partial summary judgment, by agreement of the parties. (Doc. 73.) Dr. Krug filed a counter-statement of material facts and brief in opposition to Defendants' motion for summary judgment, which also acted as a reply brief to his own motion for summary judgment, on June 13, 2022. (Docs. 96-97.) Defendants filed their reply brief on July 27, 2022. (Doc. 108.) Thus, the motions are ripe for disposition.
Furthermore, while the parties were briefing the instant motions for summary judgment, Defendants discovered that one of the declarations attached as an exhibit to their statement of material facts was an unsigned declaration that was a draft, rather than the final, signed declaration. Therefore, Defendants filed a motion to amend/correct the summary judgment record on July 14, 2022. (Doc. 100.) In response, Dr. Krug filed a motion to strike the declaration entirely. (Doc. 101.) The court denied Dr. Krug's motion to strike and granted Defendants' motion to amend/correct the summary judgment record on January 23, 2023. (Docs. 111-12.)
Outcome: 08/21/2024 181 ORDER - IT IS ORDERED that Dr. Krug is awarded $1,008,549 in back pay and $775,589 in front pay. See order for further details. Signed by Honorable Jennifer P. Wilson on 8/21/2024. (ve) (Entered: 08/21/2024)
08/21/2024 182 CLERK'S JUDGMENT in favor of Jeffrey Krug against Bloomsburg University, Pennsylvania State System of Higher Education, Bashar Hanna, James Krause. Signed by Deputy Clerk on 8/21/2024. (ve) (Entered: 08/21/2024)
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