Judge Allows Terminated Prof’s Breach-of-Contract Lawsuit to Proceed

July 2, 2015

Last month, a federal judge ruled that Professor Frederick Fagal’s breach-of-contract lawsuit against Marywood University (PA) could proceed, denying the university’s motion to dismiss the suit.

As we explained when Fagal first filed his lawsuit:

Tensions between Fagal and the university arose in late November 2011, when Fagal had FIRE’s Will Creeley speak to his “Introduction to Social Science” course. With the university’s permission, Fagal had hung posters advertising Will’s presentation around campus. But according to Fagal’s complaint (obtained via PACER), university personnel removed most of the posters without notice to Fagal, and without citing any policy explaining these actions.

In January 2012, Fagal emailed Marywood faculty, criticizing the university’s removal of his posters and its failure to uphold freedom of speech generally, and linking to a pair of video parodies on YouTube expressing the same sentiments.

After Fagal admitted posting the YouTube videos himself, he was first suspended and then ultimately terminated by the university. Represented by FIRE Legal Network member Jonathan Z. Cohen, Fagal filed suit in December 2014.

In his complaint, Fagal alleged that his rapid suspension and termination violated the university’s “progressive discipline” policy, which requires “a series of gradual steps involving strategies such as personal conferences, oral and written warnings, and opportunities for monitored assistance where applicable.”

In its motion to dismiss, Marywood University argued that the progressive discipline policy was only intended for use under certain circumstances, and thus Fagal could not plausibly claim that the lack of progressive discipline in his case constituted a breach of contract. U.S. District Judge A. Richard Caputo disagreed, holding that “[t]he progressive discipline policy appears to have been instituted to protect tenured faculty members from the type of instant suspension and termination that Professor Fagal experienced,” and that the policy “appears to apply in all circumstances.”

As a result, Judge Caputo ruled that Professor Fagal “has stated sufficient facts to state a plausible claim that Marywood breached its contract with him”—the legal standard required for a complaint to survive a motion to dismiss. Therefore, Fagal’s lawsuit against Marywood University will proceed, and we will keep you updated on any developments here on The Torch.