JEFFREY KRUG v. BLOOMSBURG UNIVERSITY, et al.
Civil No. 4:18-CV-1669
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 11, 2025
Judge Jennifer P. Wilson
Before the court is the motion for judgment as a matter of law and new trial, filed by Defendants Bloomsburg University (“Bloomsburg“), Pennsylvania State System of Higher Education (“PASSHE“), Dr. Bashar Hanna (“Dr. Hanna“) and Dr. James Krause (“Dr. Krause“) (collectively, “Defendants“). (Doc. 191.) In the amended complaint, Dr. Krug alleged his employment was terminated in retaliation for assisting Bloomsburg University‘s President Dr. Hanna‘s executive assistant in making allegations of sexual harassment and financial misconduct against Dr. Hanna, in violation of multiple federal and state statutes.1 (Doc. 54.) After a seven-day jury trial, the jury returned a verdict in favor of Dr. Krug on each claim, awarding him $1,008,549 in back pay, $775,589 in front pay, $1,500,000 in
compensatory damages, and $450,000 in punitive damages against Dr. Hanna and
FACTUAL BACKGROUND AND PROCEDURAL HISTORY2
Dr. Krug initiated this case via complaint on August 22, 2018. (Doc. 1.) Defendants answered that complaint on October 22, 2018. (Doc. 10.) Dr. Krug filed the operative amended complaint on July 8, 2019, which Defendants answered on July 18, 2019. (Docs. 54, 57.) The parties’ filed cross-motions for summary judgment in March and May 2022, respectively. (Docs. 79, 88.) The court denied both motions on February 13, 2023, and after a telephone conference with the parties on February 16, 2023, this case was listed for a date certain trial. (Docs. 114, 117.) The trial date was continued once, and ultimately commenced on August 12, 2024. (Doc. 123.)
Dr. Krug proceeded to trial on ten claims against the Defendants: 1)
A. Pre-Trial Motions
Prior to the start of trial, Defendants filed three motions in limine and Dr. Krug filed one. (Docs. 126, 128, 130, 148.) The resolution of one of these motions warrants discussion because it bears on the instant motion.3 Defendants
Initially, the court granted the motion in limine and held that Dr. Krug was only permitted “to tell the jury how an allegation of misconduct regarding Dr. Hanna was made, and the steps that were taken after the report of misconduct was made. However, the specific details of the allegation of misconduct will be precluded because those details would be unfairly prejudicial to Defendant Hanna[.]” (Doc. 142.) After the court entered this order, Plaintiff‘s counsel requested “clarification” of the order, and both parties and the court discussed the order on a telephonic status conference. (Doc. 146, 147.) During the status conference, Plaintiff‘s counsel asked whether he could reference that the allegations dealt with sexual harassment and discrimination, generally. (Doc. 155.)4 Defense counsel argued that the idea Plaintiff could not meet his prima
With these evidentiary rulings in mind, Plaintiff‘s counsel limited discussion of the underlying allegations in his opening statement, specifically stating:
Let me tell you what happened. The first witness you‘re going to hear from, her name is Angela Crossley. Ms. Crossley was a secretary or executive assistant to Dr. Hanna, and she was being sexually harassed.
Now, I‘m not going to and none of us are going to talk about what that sexual harassment entailed because this is not her case against Dr. Hanna. There is no case. That‘s not the issue. And that would not really be fair to him in this retaliation case. All you need know is, she complained he‘s sexually harassing me. She didn‘t know what to do. He is a very big deal, and she didn‘t know what to do.
(Doc. 196, p. 161.) Then, despite the court‘s ruling and Plaintiff‘s counsel‘s opening statement, Defendants’ counsel began to discuss the substance of the allegations against Dr. Hanna during the defense opening. Plaintiff‘s counsel immediately objected. (Id. at 79, 80.) At sidebar, the court warned Defendants’ counsel that, “if you present this information to the jury, you are now injecting the issue into the case. It will be a factual dispute that plaintiff can present evidence
B. Plaintiff‘s Evidence
Plaintiff began his case by presenting the testimony of Angela Crossley. Ms. Crossley testified that she was the administrative assistant to the president of Bloomsburg University; both Dr. Hanna and his predecessor. (Id. at 91.) Ms. Crossley testified that, after Dr. Hanna began his tenure as president, while performing her duties, she noticed financial red flags by Dr. Hanna such as submitting receipts twice and inappropriate uses of discretionary funds. (Id. at 95, 96.) Ms. Crossley then detailed some of Dr. Hanna‘s behavior towards her, including, what she felt was inappropriate use of terms of endearment, rubbing her shin with his foot when they were sitting in proximity to one another, rubbing her arm or shoulder while they were talking, kissing her on the cheek when leaving a group event. She also described one incident when she was crying in Dr. Hanna‘s office, and then he embraced her, kissed her forehead, and stated something along the lines of “you remind me of my sisters when you cry.” (Id. at 97–104.)
Plaintiff next presented the testimony of Judy Rostucher, Ms. Crossley‘s friend, who worked with Dr. Krug, and who helped Ms. Crossley connect with Dr. Krug, went with Crossley and Dr. Krug to report to the
Next, Dr. Krug called Dr. Hanna as on cross. Dr. Hanna began by outlining his career and testifying about a previous complaint against him while employed at Kutztown University, and his ultimate separation from that University. (Id. at 39–46.) Dr. Hanna also testified to recognizing an anonymous email which was sent to Bloomsburg University from Delaware Valley University while Dr. Hanna was applying for the president position at Bloomsburg, which referenced Dr. Hanna‘s behaviors towards women. (Id. at 63.) This email was admitted over Defendants’ objection for the specific purpose of proving PASSHE‘s knowledge as to the allegations contained in the email. (Id. at 66–70; 75, 76.)
Dr. Hanna testified to a letter he sent Dr. Krug on March 9, 2018, stating that Dr. Krug was an at-will employee. Dr. Hanna testified that he did not know that March 9, 2018 was the same date that Dr. Krug attended a pre-disciplinary conference (“PDC“) with Dr. Krause to address Dr. Krug‘s disclosures of Ms. Crossley‘s complaint. (Id. at 95–98.) Dr. Hanna testified that PASSHE initiated moving Angela Crossley to different employment after she made allegations
Dr. Alan Krug also testified on behalf of his son, Dr. Jeffrey Krug. Dr. Alan Krug testified to his career background as a lobbyist, and one conversation with his son in which Dr. Jeffrey Krug told Alan Krug about a sexual harassment allegation from a friend of Jeffrey Krug‘s assistant, Judy Rostucher. (Id. at 148–53.) Dr. Alan Krug also testified how he informed two state legislators who were on the PASSHE board about the allegations against Dr. Hanna. (Id. at 153, 54.) Dr. Jeffrey Krug‘s sister, Angela Johnston, also testified as to her experience with
Dr. Krug testified regarding retaliation that he experienced after assisting Ms. Crossley report her allegations, such as an administrative assistant who was moved into Dr. Krug‘s office by Dr. Krause rifling through Dr. Krug‘s belongings and computer, files going missing, emails being read remotely, and rumors spread about him and Ms. Rostucher. (Id. at 250-51, 259.) Dr. Krug and Ms. Rostucher filed
Dr. Krug detailed his objection to Dr. Krause conducting the PDC, including the fact that Dr. Krug had lodged complaints of retaliation against Dr. Krause, and Dr. Krause‘s statement at the PDC that Dr. Hanna had appointed Krause to be the “arbiter” of Dr. Krug‘s fate. (Doc. 198, p. 29.) Dr. Krug testified as to emails between Dr. Krause and PASSHE legal counsel Suzanne Williamson, which
Dr. Krug testified that his employment was terminated on March 21, 2018, after Dr. Krause and HR director Jerry Reed personally delivered a letter to Dr. Krug in his office and escorted him off campus. (Id. at 52.) The given reason for the termination was violation of confidentiality and exposing a student record in violation of
Dr. Krug testified about his emotional pain over this situation as well as the difficulties he had in finding comparable employment after the termination of his employment, due to a statement issued by Bloomsburg University that Dr. Krug had violated student confidentiality. (Id. at 52-81.)
In a break in Dr. Krug‘s testimony, Defendants attempted to admit the Ballard Spahr investigative report into evidence. Defendants presented the testimony of Suzanne Williamson, who is currently the vice president of administration and chief of staff at Commonwealth University, which includes
After Williamson‘s testimony, the court did not admit the Ballard Spahr report for multiple reasons. First, the court did not admit the report because Williamson was not an appropriate custodian of records, given that she was not employed at Bloomsburg University at the time the report was prepared, and she could not testify to the foundational requirements of
Mr. John Braganini testified via recorded deposition testimony. (Id. at 198.) Mr. Braganini testified that information contained in the Ballard Spahr report regarding his willingness to give a gift was inaccurate. (Doc. 136-1, p. 8.) The Ballard Spahr report relayed that Mr. Braganini decided not to give a gift after hearing what occurred with Dr. Krug and Dr. Hanna. However, Braganini testified that he actually never intended to give the gift that was solicited and, at that time, he had not heard about what was happening with Dr. Krug and Dr. Hanna. (Id.)
Mr. Andrew Lehman, former chief counsel for PASSHE, testified that, after a PASSHE investigation, it was recommended that the individuals who spread
Mr. Andrew Verzilli, qualified as an expert in economics, testified as to the back pay and front pay to which Dr. Krug was entitled, totaling $1,800,549 in back pay and $1,453,852 in front pay. (Id. at 40–56.)
Dr. James Krause testified next. Dr. Krause testified that he became aware of Angela Crossley, in his opinion, gossiping about Dr. Hanna, and he thought that was inappropriate. (Id. at 190.) Dr. Krause testified that Dr. Hanna appointed Dr. Krause to be the arbiter of Dr. Krug‘s case. (Id. at 194.) Krause also testified that he reviewed the report with attorneys from Ballard Spahr. (Id. at 223.) Dr. Krause testified he was working with Suzanne Williamson and PASSHE, and PASSHE was the entity that instructed him to provide only a summary report to Dr. Krug. (Id. at 236.) Dr. Krause testified that he spoke with potential replacements for Dr. Krug as early as March 8. (Doc. 200, p. 22.) Krause testified that he relied on the facts set forth in the Ballard Spahr report as well as Dr. Krug‘s verbal testimony and written responses. (Id. at 12.) Dr. Krause testified that he notified Dr. Hanna on the morning of March 21, 2018, that Krause has decided to terminate Dr. Krug‘s employment. (Id. at 27.) After Dr. Krause‘s testimony, Plaintiff rested.
As part of Defendants’ case in chief, Dr. Hanna testified to his version of what happened with Ms. Crossley. (Doc. 200, p. 46.) Dr. Hanna testified that when Ms. Crossley was crying in his office, he sat next to her, placed his hand on her shoulder, kissed her, and said she reminded him of one of his sisters. (Id.) Dr. Hanna testified that he was made aware of allegations made against him by Ms. Crossley on or about November 15, 2017, by PASSHE counsel Andrew Lehman. (Id. at 54.) It was at this time that Mr. Lehman advised that PASSHE would handle the situation, and that Dr. Hanna was not to do anything about it. (Id.) Ms. Crossley was immediately transferred out of Dr. Hanna‘s office, and he rarely saw her afterward. (Id. at 55.) Dr. Hanna testified to the PDC he went through regarding Ms. Crossley‘s allegations and how he was allowed an attorney to respond to the report and an attorney was present during the meeting. (Id. at 57.) Dr. Hanna testified that he became aware of potential confidential disclosures sometime around the New Year in 2018 after Mr. Lehman called him and asked him to deputize someone to investigate the disclosures. (Id. at 61, 62.)
As part of Defendants’ case in chief, Dr. Krause testified again, beginning with the contours of his relationship with Dr. Krug prior to the incidents at issue in this case. Mainly, Dr. Krause testified to disagreements between himself and Dr. Krug relating to vacation requests, appointment of an interim dean in the business
Dr. Krause testified that at the PDC, Dr. Krug addressed things outside of the Ballard Spahr report, was rambling, contradictory, and blamed things on others. (Id. at 151-61.) During cross-examination of Dr. Krause, Dr. Krug‘s counsel asked about the inconsistencies between the Ballard Spahr report and the evidence elicited at trial, including Ballard Spahr not interviewing key witnesses, differences between witnesses’ testimony, and inaccuracies in witnesses’ testimony. (Id. at 167-83.) Dr. Krause testified that he believed the Ballard Spahr report had all the information he needed to make the decision, despite the lack of interviews from Dr. Alan Krug, Angela Johnston, JoAnn Zeigler, and Angela Crossley. (Id. at
Defendants’ final witness was Dr. Robert Wislock, the Director of Accommodations for Students with Disabilities and Equity. (Id. at 226.) Dr. Wislock testified that he discussed confidentiality with Dr. Krug, Judy Rostucher, and Angela Crossley when they met with him, although all three of those individuals testified that he did not do so. (Id. at 255.)
D. Rule 50 Motions
At the close of evidence, but prior to submitting the matter to the jury, Defendants moved for dismissal of PASSHE based on there being no evidence showing personal involvement of PASSHE. (Doc. 201, p. 8.) Defendants contend there was only evidence showing that PASSHE gave legal advice to its client. (Id.) Defendants also moved for dismissal of Dr. Hanna based on lack of evidence of personal involvement because the evidence presented was only conjecture and speculation that Dr. Hanna was involved. (Id. at 9.) Defendants moved for dismissal of the whistleblower claim because, based on McClain v. Mann, 2008 WL 975059 (E.D. Pa. Mar. 31, 2008), and Defendants’ contention that bringing a whistleblower complaint to someone who is not the appropriate authority causes a whistleblower claim to fail. (Id.) Defendants further argued that it was not established that Dr. Krug
Dr. Krug responded that PASSHE was involved because Suzanne Williamson, PASSHE‘s employee, participated in drafting the termination letter and statement with Dr. Krause, PASSHE retained Ballard Spahr to investigate and write a report, and, Ballard Spahr, as PASSHE‘s agent, made conscious choices of who to interview and who not to interview, and that PASSHE directed Dr. Hanna to appoint Dr. Krause. (Id. at 11, 12.) Dr. Krug further responded that Dr. Hanna was personally involved because he appointed Krause, and also pointed to the suspect timing between the March 9 PDC and the letter stating Dr. Krug was an at-will employee, the suspect timing of Dr. Krug‘s termination date being the same date when Dr. Hanna was “exonerated” by PASSHE, and the suspect timing of Dr. Hanna sending the email to the constituencies four minutes after receiving word
The court denied Defendants’ motion without prejudice and with leave to renew after the verdict. (Id. at 16.) Regarding the argument about conspiracy, the court held there was no standalone conspiracy claim to dismiss, and the issue of conspiracy would be discussed further at the charge conference. (Id.)
Dr. Krug also made a
After closing arguments and jury instructions, which have not been challenged here, the jury returned a verdict in favor of Dr. Krug on all claims, and awarded him back pay, front pay, compensatory, and punitive damages. (Doc. 176.) The court affirmed the jury‘s advisory verdict regarding back pay and front pay, and the clerk entered judgment on August 21, 2024. (Docs. 181, 182.)
JURISDICTION AND VENUE
The court has jurisdiction over this case pursuant to
STANDARDS OF REVIEW
A. Rule 50(b)–Renewed Motion for Judgment as a Matter of Law
A court should “sparingly” enter judgment as a matter of law and, “only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.” Marra v. Phila. Housing Auth., 497 F.3d 286, 300 (3d Cir. 2007) (quoting CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375, 383 (3d Cir. 2004); and Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 545 n.8 (3d Cir. 2007)). The court must “refrain from weighing the evidence, determining the credibility of witnesses, or substituting [its] own version of the facts for that of the jury.” Id. (citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).
B. Rule 59–Motion for a New Trial
The decision to grant a new trial is “confided almost entirely to the exercise of discretion on the part of the trial court.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). The scope of that discretion is determined by reference to
Conversely, when the motion is based on the weight of the evidence being against the verdict, the district court‘s discretion is more limited. Klein, 922 F.2d at 1290. “A new trial should be granted only where the great weight of the evidence cuts against the verdict and ‘where a miscarriage of justice would result if the verdict were to stand.‘” Springer v. Henry, 435 F.3d 268, 274 (3d Cir. 2006) (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996)).
Further,
Unless justice requires otherwise, no error in admitting or excluding evidence–or any other error by the court or a party–is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party‘s substantial rights.
DISCUSSION
Defendants move both for judgment as a matter of law and for a new trial. The court will first decide the renewed motion for judgment as a matter of law and then decide the motion for a new trial.
A. Renewed Motion for Judgment as a Matter of Law
1. Personal Involvement of Dr. Hanna
Defendants argue that Dr. Hanna is entitled to judgment as a matter of law because there was no evidence that he was personally involved in retaliatory conduct regarding the § 1983 claims. (Doc. 205, p. 14.) Specifically, Dr. Hanna argues that there was no evidence that he was personally involved in terminating Dr. Krug‘s employment or that he directed Dr. Krause to make a certain decision, and the testimony showed that Dr. Hanna was “walled off” from any decision regarding Dr. Krug‘s employment. (Id. at 15–18.)
Conversely, Dr. Krug points to the following trial evidence to support Dr. Hanna‘s personal involvement in retaliation against Dr. Krug: (1) the timing of Dr. Hanna‘s letter stating Dr. Krug was at will and Dr. Krug‘s PDC being on the same day (Doc. 206, p. 15); (2) the timing of the date of the termination of Dr. Krug‘s
In reply, Defendants discount the evidence presented by Plaintiff, arguing that “[t]he concept that a person can both retaliate against an individual while simultaneously giv[ing] that individual a raise does not make logical sense and certainly does not rise to the level of circumstantial evidence of retaliation.” (Doc. 208, p. 3.) Defendants further argue that the timing of Dr. Hanna emailing the
The court begins by noting that Dr. Hanna is only moving for judgment as a matter of law with respect to the § 1983 claims, as those are the only claims for which Dr. Hanna provides a standard. (Doc. 205, pp. 14, 15.) Accordingly, the court will only consider whether there is the minimum quantum of evidence and will draw all inferences in the light most favorable to the verdict winner to determine whether Dr. Hanna was personally involved in conduct giving rise to the
To show that a defendant was personally involved in a constitutional violation under
As noted by Dr. Krug, the trial evidence showed that Dr. Hanna appointed Dr. Krause to be the “arbiter” of Dr. Krug‘s employment status. (Doc. 200, p.
2. Pennsylvania Whistleblower Law
Defendants argue they are all entitled to judgment as a matter of law on the Pennsylvania Whistleblower claim because “an alleged ‘report’ made to members of the public or co-workers ‘serves as a death knell’ to a Whistleblower Act claim[,]” specifically relying on the case McClain v. Munn, 2008 WL 975059, at *4 (W.D. Pa. 2008). (Doc. 205, p. 19.) Dr. Krug discounts Defendants’ reliance
The Pennsylvania Whistleblower Law provides that:
No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee‘s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste by a public body or an instance of waste by any other employer as defined in this act.
Defendants’ reliance on McClain is misplaced. The court in McClain held that reporting solely to members of the public or co-workers is a “death knell” to a Whistleblower Act claim. Id. at *4. In McClain, the court, at the motion to dismiss procedural posture, decided that plaintiff had failed to plead a Whistleblower Act claim because “McClain does not allege that he reported the alleged [misconduct] to his supervisor, a superior, or any agent authorized to take action on behalf of the defendant Township.” Id. Thus, “[p]laintiff‘s Second
Here, as explained by Dr. Krug and not contested by Defendants, Bloomsburg University is a “public body,” making it an “employer” under the Whistleblower Law, and a proper place to make an allegation of waste or wrongdoing.
3. Qualified Immunity Regarding Dr. Krause
Defendants argue that Dr. Krause is entitled to qualified immunity regarding the
Dr. Krug argues that Defendants waived this argument because they failed to raise it in their
Defendants respond that qualified immunity can be raised at any time, including after the conclusion of trial, and argue that Plaintiff has not been prejudiced by the failure to raise the defense sooner. (Doc. 208, p. 5) (relying on Sharp v. Johnson, 669 F.3d 144, 158 (3d Cir. 2012)). Defendants also assert that
Preliminarily, the court will not decide this issue on the basis of waiver. Both parties appear to be correct: failure to raise an argument in a
The doctrine of qualified immunity recognizes that despite their participation in constitutionally impermissible conduct, government officials “may nevertheless be shielded from liability for civil damages if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow, 457 U.S. at 818). The doctrine “protects all but the plainly incompetent or
Courts follow a two-pronged test to determine whether qualified immunity applies. Pearson, 555 U.S. at 232. The court may exercise its discretion in deciding “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. First, the court must determine whether the defendants violated the plaintiff‘s statutory or constitutional right. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). Although Defendants do not address this element at all, the jury has decided that Defendant Krause violated Dr. Krug‘s First Amendment right to be free from retaliation for his speech as well as Dr. Krug‘s Fourteenth Amendment due process property right in his employment and his liberty interest in his reputation. (Doc. 176.)
Second, the court must determine whether the right at issue was clearly established at the time of the violation. Id. (citing Reichle, 566 U.S. at 664). “A right is ‘clearly established’ . . . only if ‘the contours of the right’ are ‘sufficiently clear that a reasonable official would understand that what he is doing violates that
Defendants do not make any argument regarding how clearly Dr. Krug‘s rights were defined at the time when Dr. Krause decided to terminate Dr. Krug‘s employment. Defendants do not even specify whether they are discussing Dr. Krug‘s First Amendment or Fourteenth Amendment rights. Defendants focus instead on Dr. Krause‘s right to rely on an investigative report. (Doc. 205, pp. 22, 23; Doc. 208, p. 6.) This does not carry their burden of showing that Dr. Krug‘s rights were not clearly established at the time of the constitutional violation such that a reasonable official would not understand that what he was doing violated the right.
In making the argument that Dr. Krug‘s rights were not clearly established because, in the situation faced by Dr. Krause, a reasonable official would rely on
4. Personal Involvement of PASSHE
Defendants argue there is no evidence showing involvement of PASSHE in retaliatory conduct because: (1) it retained an outside law firm to conduct an investigation; (2) it provided legal and labor relations advice to Bloomsburg University and its personnel; (3) Dr. Krause made the decision to terminate Plaintiff; and (4) there was no evidence presented to show PASSHE or its personnel or representative were involved in unlawful retaliation against Plaintiff. (Doc. 205, p. 24.)
Dr. Krug points to the following evidence to support PASSHE‘s involvement in the termination of his employment. First, he points to the testimony from Dr. Krause and Suzanne Williamson, employed by PASSHE at the time of the events in question, regarding drafting a termination letter prior to Dr. Krug‘s PDC. (Doc. 206, p. 9, 10.) Plaintiff notes that the jury was free to disregard Krause and Williamson‘s explanations of why they drafted this letter prior to the termination of Dr. Krug‘s employment if they found them
B. Motion for New Trial
1. 404(b) Evidence Against Dr. Hanna
Defendants argue that evidence regarding allegations against Dr. Hanna at two prior universities was improperly admitted character evidence under 404(b), because it confused the issue of retaliation in this case with whether Dr. Hanna should have been hired or whether PASSHE supported him. (Doc. 205, p. 26.) Defendants specifically challenge the admission of an anonymous email and two questions posed by plaintiff‘s counsel on cross-examination, which were not objected to at trial. (Id. at 27.) Defendants argue that defense counsel “had no choice but to address these allegations to clarify the record[.]” (Id. at 28.) Defendants argue “[t]hese unsubstantiated claims were wholly irrelevant to the retaliation claim. They served no legitimate purpose, were highly prejudicial, and clearly influenced the jury‘s opinion of Dr. Hanna, as reflected in the punitive damages awarded against him.” (Id.)
Dr. Krug responds that there was no objection at trial to questioning or documents about Dr. Hanna‘s time at Kutztown University, and accordingly, that this argument is waived. (Doc. 206, pp. 28, 29.) Turning to the anonymous email
A new trial will not be granted because of the evidence, both through questions and documents, of Dr. Hanna‘s time at Kutztown University because Defendants failed to object to the admission of the evidence at the time of trial. Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 116 (3d Cir. 1992). There is an exception to this waiver rule: an issue may be reviewed despite a failure to object when “exceptional circumstances” including “the public interest requires that the new issue be heard on appeal or when manifest injustice would result from the failure to consider the new issue, or where it is apparent that counsel failed to object to a fundamental and highly prejudicial error resulting in a miscarriage of justice.” Id. However, Defendants do not argue any of these exceptional
In any event, the evidence was admissible for the permissible
Again, this email was admitted for the limited purpose of showing Bloomsburg and PASSHE‘s knowledge when they hired Dr. Hanna. This is a proper
2. Anonymous Email
Defendants argue that an anonymous email identifying allegations of Dr. Hanna‘s previous mistreatment of women was improperly admitted under
Dr. Krug responds that the email was properly authenticated as what it purports to be: “the email sent to Bloomsburg University and PASSHE, and widely circulated, prior to the hiring of Hanna as president.” (Doc. 206, p. 32.) Dr. Krug distinguishes the cases cited by Defendants because the proponents of the emails in those cases were trying to prove they were emails from certain individuals. (Id. at 34, 35.)
At trial, Plaintiff‘s counsel laid a foundation through Dr. Hanna‘s testimony that the anonymous email was an “email [that] went from Delaware Valley University to people at Bloomsburg after I [Dr. Hanna] had interviewed for the position of president at Bloomsburg[,]” and that Dr. Hanna became aware of the email during the application process for the presidency of Bloomsburg through the headhunter who was recruiting him. (Doc. 197, pp. 62, 63.) Dr. Hanna testified he had seen the aforementioned email and identified Plaintiff‘s Exhibit 192 as the email in question. (Id. at 63.) Ultimately, after a question by the court at sidebar, Defendant‘s counsel admitted that this was the email received by Bloomsburg and PASSHE and was the same email that Dr. Hanna had discussed with the headhunter. (Id. at 69.) Therefore, Plaintiff laid a proper foundation for the email pursuant to
The cases cited by Defendants are materially different. In Marstolf v. United Airlines, Inc., No. 13-1581, 2015 WL 8207435, at *2 (W.D. Pa. Dec. 7, 2015), the court determined that the plaintiff had not produced competent evidence to authenticate the emails as emanating from a certain person because plaintiff had produced no evidence showing the emails were from that person, when the emails had blacked out recipient‘s address, subject line, and line showing date the e-mails
In United States v. Browne, 834 F.3d 403 (3d Cir. 2016), the proponent of anonymous Facebook messages attempted to show the messages were sent by the defendant and were authentic under
In United States v. Vayner, 769 F.3d 125, 131-32 (2d Cir. 2014), the Second Circuit held that the Government had failed to authenticate a web page as authored by defendant. Id. (“[t]he government did not provide a sufficient basis on which to conclude that the proffered printout was what the government claimed it be-Zhyltsou‘s [defendant‘s] profile page[.]“) (emphasis in original.) Here, there was
In conclusion, the anonymous email was not being introduced as sent from a specific person, and thus, was properly authenticated as the anonymous email received by PASSHE and Bloomsburg during Dr. Hanna‘s hiring process. Therefore, the motion for a new trial will be denied on this basis.
3. Motion in limine Regarding Nature of Complaint against Dr. Hanna
Defendants argue that allowing the jury to know that the underlying protected activity involved sexual harassment was prejudicial to Dr. Hanna and such information was irrelevant because Defendants did not dispute that Plaintiff engaged in protected activity. (Doc. 205, p. 33.) Defendants argue “the nature of the protected activity had no bearing on the case and should have been excluded, particularly when categorizing it as ‘sexual harassment’ of an unclear sort is outrageously prejudicial and effectively encourages the jury to speculate the worst.” (Id. at 33.)
Dr. Krug responds that the court‘s clarified ruling on the motion in limine—allowing Plaintiff to mention that the allegations against Dr. Hanna were regarding sexual harassment but not get into the details of what was alleged—was a
In reply, Defendants argue that they conceded Plaintiff had engaged in protected activity, at least regarding the Title VII, IX, and PHRA claims, and that “modification of the motion in limine ruling to allow testimony about sexual harassment resulted in unfair prejudice to defendants and warrants a new trial.” (Doc. 208, pp. 7, 8.)
Initially, it appears Defendants are challenging this court‘s modified motion in limine ruling allowing the fact that the misconduct allegations were about sexual harassment but prohibiting any evidence of the underlying substance of those allegations. However, Defendants did not follow this ruling at trial. They chose to open the door and allow the substance of the allegations against Dr. Hanna into the trial after fair warning from the court during the defense opening statement. The jury heard the substance of the allegations at trial because of defense counsel‘s strategic decision to make it an issue. To the extent that Defendants argue that the jury knowing that the misconduct alleged was sexual harassment, Defendants have
Additionally, regarding the argument that Defendants had agreed that Dr. Krug engaged in protected activity, the court notes that a stipulation regarding whether plaintiff had met the element of “engage in protected activity” for the Title VII, IX, and PHRA claims was not presented throughout this trial. Accordingly, the court instructed the jury on each element of those claims. In the brief in support of their motion in limine, Defendants vaguely asserted they would concede “for the retaliation claim” that Defendant engaged in protected activity. Considering there were four retaliation claims in this lawsuit, which were based on different events, this statement is not clear enough to qualify as Defendants conceding an element of Plaintiff‘s claims such that Plaintiff would not need to establish that element at trial for each claim.
Moreover, Defendants do not adequately explain how allowing the jury to hear the general nature of the underlying allegations is unduly prejudicial to Dr. Hanna. As explained above, “[p]rejudice does not simply mean damage to the opponent‘s cause[,]” but rather, the law guards against unfair prejudice, that is, “prejudice of the sort which cloud[s] impartial scrutiny and reasoned evaluation of the facts, which inibit[s] neutral application of principles of law to the facts as found.” Goodman, 293 F.3d at 670. Certainly, hearing that Dr. Hanna had been
4. Exclusion of Ballard Spahr Report for Failure to Qualify as a Business Record
Defendants argue they are entitled to a new trial because the court failed to admit the Ballard Spahr report as a business record. (Doc. 205, p. 34.) Defendants argue the court‘s ruling was erroneous based on the court‘s reasoning that the designated keeper of the records was not in the role at the time and that the report was prepared for the purpose of litigation. (Id.) Defendants cite to Conoco Inc. v. Dep‘t of Energy, 99 F.3d 397, 391 (Fed. Cir. 1996) to argue that the qualifying witness does not need to be the person who prepared or maintained the record, “as long as the witness understands the system used to prepare the records.” (Id. at 35.) Defendants also argue the report was not prepared in anticipation of litigation
Defendants further argue that the failure to admit the report was not harmless, even though the report was eventually admitted for the limited purpose of showing its effect on Dr. Krause, due to Plaintiff‘s counsel‘s “capitalization” on the court‘s ruling. (Doc. 205, p. 37.) For example, Defendants argue that counsel‘s comments as to the report being “such garbage that it‘s not even admissible for [the jury] to consider what‘s in it is true[,]” and counsel‘s side comment that the report has not been admitted show that it was error for the court not to admit the report. (Id.) Although it is clear that Defendants’ counsel did not appreciate Dr. Krug‘s counsel‘s comments, it is not clear why counsel‘s arguments in closing or comments on whether evidence has yet to be admitted warrant a new trial or show prejudice against Defendants.
With respect to the substance of this argument, Dr. Krug counters by explaining how the Ballard Spahr report fails to meet each foundational requirement of
In reply, Defendants, for the first time, attempt to show they have met the foundational requirements of
A record of act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with
Rule 902(11) or(12) or with a statute permitting certification; and(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
The Third Circuit has explained that, in order to admit a document containing hearsay under this exception, the custodian or other qualified witness must testify that:
(1) the declarant in the records had personal knowledge to make accurate statements; (2) the declarant recorded the statements contemporaneously with the actions that were the subject of the reports; (3) the declarant made the record in the regular course of the business activity; and (4) such records were regularly kept by the business.
United States v. Pelullo, 964 F.2d 193, 200 (3d Cir. 1992).
At trial, the court provided multiple reasons for not admitting the report. Primarily, the court concluded that the Defendants failed to present testimony that satisfied the foundational elements. As a preliminary matter, the court found that Ms. Williamson was not a proper custodian because she was not employed by Bloomsburg University at the time the record was made, so she could not have
As a separate, independent reason for not admitting the document as a business record, the court noted that this document was prepared for the purpose of investigation and litigation of an employee personnel issue, and, pursuant to Palmer v. Hoffman, 318 U.S. 109 (1943), it was within the court‘s discretion to exclude the document. (Id. at 130.) The court also noted that the testimony so far in the case had raised serious question regarding the reliability of information in the report. (Id.) Further, the court also expressed hesitation over the layers of hearsay contained with the document. Thus, while the document could potentially be admissible, if an adequate foundation had been laid, each statement would have had to satisfy its own hearsay exception. (Id.)
The court stands by this reasoning and does not find Defendants’ present arguments to have merit. First, addressing whether Ms. Williamson was the proper
Second, Defendants contend that the Ballard Spahr report was not prepared in anticipation of litigation. (Doc. 205, p. 36.) Even if the court were to agree with this argument, it would not rectify the fact that Defendants did not lay the foundational requirements, as explained above. Finally, in Defendants’ reply brief, Defendants attempt—for the first time—to address the foundational requirements of
Finally, Defendants argue it was error for the court to admit the report with a limiting instruction because it undermined the report‘s evidentiary value, which was underscored by Plaintiff‘s counsel using the court‘s instruction to argue the report was “garbage.” The court notes that there was no objection to the comment at the time and thus, any objection to the comment has been waived. Accordingly, the motion for a new trial is denied on this basis as well.
CONCLUSION
For the foregoing reasons, Defendants’ motion for judgment as a matter of law is denied. Defendants’ motion for a new trial is also denied. An Order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: March 11, 2025