Krug v. Bloomsburg University et al

Filing 216

MEMORANDUM (Order to follow as separate docket entry) re 191 MOTION for New Trial filed by James Krause, Pennsylvania State System of Higher Education, Bashar Hanna, Bloomsburg University. Signed by Honorable Jennifer P. Wilson on 3/11/2025. (ve)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY KRUG,

:
:
Plaintiff,
:
:
v.
:
:
BLOOMSBURG UNIVERSITY, et al., :
:
Defendants.
:

Civil No. 4:18-CV-1669

Judge Jennifer P. Wilson

MEMORANDUM
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

1

Dr. Krug alleged Title IX retaliation claims, Title VII retaliation claims, § 1983 First
Amendment retaliation and deprivation of procedural due process claims, as well as
Pennsylvania Whistleblower Law claims and retaliation claims under the Pennsylvania Human
Resources Act (“PHRA”) against Defendants stemming from his termination as Dean of the
Business School at Bloomsburg University. (Doc. 54.) Dr. Krug also alleged retaliation for
filing complaints of retaliation against him. (Id.)
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compensatory damages, and $450,000 in punitive damages against Dr. Hanna and
$200,000 in punitive damages against Dr. Krause. (Doc. 176.) Defendants now
move for judgment as a matter of law and for a new trial under Federal Rules of
Civil Procedure 50(b) and 59. (Doc. 191.) For the reasons that follow,
Defendants’ motion for judgment as a matter of law and new trial will be denied.
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) § 1983
First Amendment retaliation against Drs. Hanna and Krause; 2) § 1983 Fourteenth
Amendment procedural due process deprivation of a property interest in

2

In this factual background section, the court has included only the facts elicited at trial that are
implicated by the parties’ arguments in the instant motion or necessary to provide sufficient
context.
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employment against Drs. Hanna and Krause; 3) § 1983 deprivation of liberty
interest in reputation against Drs. Hanna and Krause; 4) Title VII retaliation for
reporting sexual harassment against Bloomsburg University and PASSHE; 5) Title
VII retaliation for complaining of retaliation against Bloomsburg University and
PASSHE; 6) Title IX retaliation for reporting sexual harassment against
Bloomsburg University and PASSHE; 7) Title IX retaliation for complaining of
retaliation against Bloomsburg University and PASSHE; 8) PHRA retaliation for
assisting in reporting sexual harassment against Bloomsburg University, PASSHE,
Dr. Hanna, and Dr. Krause; 9) PHRA retaliation for complaining of retaliation
against Bloomsburg University, PASSHE, Dr. Hanna, and Dr. Krause; and 10)
violation of the Pennsylvania Whistleblower Law against Bloomsburg University,
PASSHE, Dr. Hanna and Dr. Krause. Dr. Krug requested compensatory damages,
front pay, back pay, and punitive damages.
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

The court granted Defendants’ motion in limine regarding the substance of misconduct
allegations against Dr. Hanna, deferred ruling on Defendants’ motion in limine regarding the
involvement of Bloomsburg University, and denied Defendants’ motion in limine request to file
further motions in limine. (Doc. 142.) The court denied Dr. Krug’s motion to find
Bloomsburg’s discrimination and harassment policy unconstitutional. (Doc. 156.)
3

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filed a motion in limine to exclude the substance of the allegations against Dr.
Hanna, arguing that permitting Dr. Krug to explore the substance of the sexual
harassment allegations against Dr. Hanna did not have a proper purpose under
Federal Rule of Evidence 404(b), and any probative value would be outweighed by
prejudice, under Rule 403. (Doc. 127.) Dr. Krug opposed this request, arguing
that the evidence was admissible as part of the res gestae of the case and the
evidence is “part and parcel” of the underlying allegations. (Doc. 132.)
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

4

The cited document is the minute sheet from the telephone conference. The substance of what
was said at the conference is taken from the court’s notes as reflected in the minute sheet.
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facie case without reference to the type of allegations is false, and any reference to
sexual harassment or discrimination is unduly prejudicial and irrelevant. (Id.)
After this input from both parties, the court clarified its previous order and held
that “the parties may elicit the fact that the alleged misconduct was in the form of
sexual harassment or discrimination and financial wrongdoing or waste. The
parties may not elicit testimony regarding the specific actions that give rise to these
allegations.” (Doc. 158.)
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
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on. Is that what your intention is?” and Defendants’ counsel confirmed that was
their intention. (Id. at 81.) Plaintiff’s counsel then requested a rebuttal opening
statement, since Plaintiff had not discussed the facts of the underlying sexual
harassment in his opening based on the court’s in limine ruling, and the court
granted the request. (Id.)
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.)

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Crossley also testified that she spoke to Bloomsburg University Trustee
Robert Dampman about Dr. Hanna’s behavior towards her. Eventually, after
receiving the advice of her friend Judy Rostucher, who worked for Dr. Krug, she
also spoke with Dr. Krug about her concerns. (Id. at 108–14.) Crossley testified
that she went with Dr. Krug and Judy Rostucher to report the alleged sexual
harassment to Bloomsburg University’s Title IX office, where she was met with
indifference. (Id. at 114–19.) Ms. Crossley testified that she met with
investigators from PASSHE regarding the allegations in public at a Panera Bread
and in the back of a van. (Id. at 120–25.)
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 Title IX office, and
accompanied Crossley when she was interviewed by PASSHE investigators. (Id.
at 133–140.) Rostucher also testified to perceived retaliation she experienced after
helping Crossley report her allegations, including rumors of a romantic affair
spread about Rostucher and Dr. Krug and email irregularities. (Id. at 141–59.)
Rostucher testified about an investigative report into this situation which
misrepresented her interview. Specifically, Rostucher testified that her union
representative “flew into a rage” upon seeing the final report because “she
[Rostucher] never said any of this stuff.” (Id. at 165.)
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Dr. Krug called Dr. Robert Dampman to testify that Angela Crossley
contacted him to discuss her allegations of sexual harassment against Dr. Hanna
around the end of October 2017. Dr. Dampman attempted to discuss these
allegations at Trustee meetings, but felt stonewalled. (Doc. 197, pp. 14–18, 23–
25.)
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
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against him. (Id. at 101–05.) Dr. Hanna testified that Suzanne Williamson
conferred with Dr. Krause prior to Dr. Krug’s PDC, and Ms. Williamson also
participated in Dr. Hanna’s PDC. (Id. at 106, 111.) Dr. Hanna testified that, after
his PDC with the Chancellor of PASSHE, where he was provided the opportunity
to have counsel and the opportunity to respond to the investigative report against
him, the Chancellor adopted the conclusions of the report that there had been “no
financial wrongdoing, no hostile work environment, no retaliation, and no sexual
harassment.” (Id. at 133, 134.)
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 Title
IX enforcement, her experiences in discussing Angela Crossley’s allegations with
Dr. Krug and Ms. Crossley herself on a separate occasion, and the advice that
Angela Johnston gave to her brother regarding the necessity that he report Ms.
Crossley’s allegations to the appropriate authorities. (Id. at 174–93.)

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Dr. Jeffrey Krug testified on his own behalf. He testified as to his
professional background and how he came to work at Bloomsburg University. (Id.
at 193–221.) Dr. Krug also testified as to the pre-disciplinary conference (“PDC”)
that occurred with Dr. Krause, PASSHE employee Lisa Sanno, and a Bloomsburg
HR representative on March 9, 2018. (Id. at 221–23.) The night before the PDC,
Dr. Krug was inadvertently emailed the entirety of an independent investigation
undertaken by the law firm Ballard Spahr. (Id. at 224.) Dr. Krug also testified to
his meetings with Dr. Wislock, the Title IX coordinator, Angela Crossley, and
Judy Rostucher. (Id. at 235–50.)
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 Title IX complaints regarding this alleged retaliation. (Id. at 262.)
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
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drafted Dr. Krug’s termination letter and an announcement regarding the
termination of Krug’s employment as Dean the day before Krug’s PDC. (Id. at
37–39.) Dr. Krug testified to the lack of information given to him before and
during the PDC, the fact that he was not allowed to have counsel at the meeting,
his attempts to provide his responses to the allegations against him, and PASSHE’s
response that the choice of Dr. Krause was at the President of Bloomsburg’s
statutory discretion, which PASSHE had no authority to disturb. (Id. at 39–52.)
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 FERPA. (Id.)
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
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campuses at Bloomsburg, Mansfield, and Lock Haven. (Id. at 116.) Williamson
testified that any documents maintained by Bloomsburg University prior to
merging with other Pennsylvania universities and becoming Commonwealth
University would be in the possession of Commonwealth University, as the
statutory successor of Bloomsburg University. (Id. at 117.) Williamson testified
that she is the de facto keeper of records for Commonwealth University,
Bloomsburg. (Id. at 117, 119.) She testified that the report at issue was generated
by an outside third party–Ballard Spahr–and was the report of an investigation
regarding the disclosure of confidential information by Dr. Jeffrey Krug and Judy
Rostucher. (Id. at 119.) Williamson testified that it was normal and common in
the course of business for Bloomsburg University to maintain documents prepared
by external parties. (Id.) Williamson testified that Ballard Spahr prepared three
different reports for this investigation, and Ballard Spahr was retained to provide
these investigation reports. (Id. at 122.) Williamson testified that she did not
believe Ballard Spahr recorded the interviews in any way. (Id. at 123.)
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 Federal Rule of Evidence
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803(6). (Id. at 129.) The court also noted that the report was not prepared by
Bloomsburg employees, but by an outside law firm. (Id.) The court additionally
excluded the document because the preparers of the document did not have
personal knowledge of the matters in the report, and it was not established that it
was a regular practice of Bloomsburg to have investigative reports prepared by
outside firms. (Id.) The court also held that the document was prepared for the
purpose of an investigation and litigation of a personnel issue. (Id. at 130.)
Finally, the court noted that the credibility of the report had already been placed at
issue by testimony thus far at trial, as well as the issue of the report containing
hearsay within hearsay, for which there would need to be independent exceptions
to admit certain statements. (Id.)
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
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rumors regarding Dr. Krug and Judy Rostucher should have pre-disciplinary
conferences. (Doc. 198, p. 206.) Mr. Lehman was also the person responsible for
hiring Ballard Spahr to investigate whether Dr. Krug had breached confidentiality
rules in discussing Ms. Crossley’s sexual harassment allegation. (Id. at 216.)
Lehman described the process of how he did so, and he directed Ballard Spahr to
only investigate speech that was not a matter of public concern. (Id. at 219.)
Lehman also testified that Dr. Hanna had been walled off from Dr. Krug’s
disciplinary proceedings and that Dr. Krause was chosen because he was next in
line, despite the presence of disagreements or “allegations of bias” against Dr.
Krause. (Id. at 224.) Dr. Lehman testified that Dr. Hanna was advised to recuse
himself from this investigation and appoint another administrator to handle it. (Id.
at 227.) Dr. Lehman testified that it was not common or an acceptable practice
within PASSHE to draft a termination letter in advance of a PDC. (Doc. 199, p.
19.) Lehman also testified that it was not a common or acceptable practice to predraft letters to university constituencies regarding Dr. Krug’s employment
termination prior to the PDC. (Id. at 22, 23.)
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.)

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Ms. Suzanne Williamson testified that she assisted Dr. Krause in drafting
Dr. Krug’s termination letter prior to the PDC, as well as reviewing the email to
four university constituencies. (Id. at 72–74.) Williamson also testified that it is
an acceptable practice to start drafting discipline letters following receipt of an
investigation report. (Id. at 72.) Mr. Jerry Reed, who was then the director of
human resources, testified that he had prepared the letter of termination for Dr.
Krug with input from PASSHE. (Id. at 118.)
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.
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C. Defendants’ Evidence
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

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school, and minor failures to comply with Dr. Krause’s administrative requests.
(Id. at 105–23.) Dr. Krause then testified that Mr. Lehman informed him of the
investigation into confidential disclosures, and that Dr. Hanna was going to appoint
Dr. Krause to be the arbiter of the situation, but that it must not be discussed with
Dr. Hanna. (Id. at 128.) At this point, the Ballard Spahr report was admitted, over
Dr. Krug’s objection, for the limited purpose of showing the information Dr.
Krause relied on when deciding the disciplinary matter regarding Dr. Krug, not for
the truth of the contents of the report. (Id. at 133–37.) Dr. Krause then testified to
the contents of the Ballard Spahr report, including the identified disclosures and
the conclusions reached by the Ballard Spahr attorneys as to whether those
disclosures were appropriate. (Id. at 141–47.)
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
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199.) Dr. Krause testified that he drafted a disciplinary letter that summarized the
key parts of the Ballard Spahr report the day before the PDC, but that the letter did
not contain any conclusions as to appropriate discipline. (Id. at 209–10.)
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, 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

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raised the financial wrongdoing allegation to the appropriate authority. (Id. at 10.)
Defendants argued that conspiracy as a theory of liability is insufficient when the
individuals involved in the conspiracy are members of the same agency, here, Dr.
Hanna and Dr. Krause, relying on Piazza v. Young, 403 F.Supp. 3d 421, 440 (M.D.
Pa. 2019). (Id. at 10, 11.) Regarding the constitutionality of the Bloomsburg
discrimination policy, Defendants argued that, “even if the policy were to be
declared unconstitutional now six years after the fact, that would essentially be
giving the Defendants qualified immunity on that issue because they followed the
policy that was legal at the time.” (Id. at 20, 21.)
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 atwill 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
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that Dr. Krug was terminated. (Id. at 12, 13.) Dr. Krug also responded that telling
other people does not negate a whistleblower claim when the appropriate authority
is also told, and Dr. Wislock was the appropriate authority for the financial
wrongdoing allegation, as well as the PASSHE investigators that Dr. Krug told.
(Id. at 13, 14.) Finally, Plaintiff responded that PASSHE and Bloomsburg
University are not the same entity and there could be a conspiracy between
employees of the two organizations. (Id. at 14.)
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 Rule 50 motion, which was also denied without
prejudice with leave to renew the motion after the verdict. (Id. at 17–19.) Dr.
Krug did not file a renewed motion, and thus, the court will not outline the Rule 50
arguments here.
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.)
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Thereafter, on August 30, 2024, Plaintiff filed a motion to alter judgment
and a motion for attorney’s fees. (Docs. 183, 185.) The briefing for the motion for
attorney’s fees was stayed pending the resolution of anticipated motions for
judgment as a matter of law and new trial. (Doc. 190.) Thereafter, Defendants
filed the instant motions. (Doc. 191.) The motions have been fully briefed and are
ripe for disposition.
JURISDICTION AND VENUE
The court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and
1343 because Dr. Krug brought claims under federal statutes, namely 42 U.S.C. §
1983, 20 U.S.C. § 1681(a), and 42 U.S.C. § 2000e. The court has supplemental
jurisdiction over the Pennsylvania Whistleblower Law and PHRA claims under 28
U.S.C. § 1367 because they are related to the federal claims. Venue is proper in
the Middle District of Pennsylvania under 28 U.S.C. § 1391(b) because all acts or
omissions giving rise to the claim occurred with the Middle District.
STANDARDS OF REVIEW
A. Rule 50(b)–Renewed Motion for Judgment as a Matter of Law
Federal Rule of Civil Procedure 50(b) provides: “If the court does not grant
a motion for judgment as a matter of law made under Rule 50(a), the court is
considered to have submitted the action to the jury subject to the court’s later
deciding the legal questions raised by the motion.” In ruling on a motion under

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Rule 50(b), the court may “allow judgment on the verdict,” “order a new trial,” or
“direct the entry of judgment as a matter of law.” FED. R. CIV. P. 50(b)(1)–(3).
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
Federal Rule of Civil Procedure 59(a)(1)(A) provides: “[t]he court may, on
motion, grant a new trial on all or some of the issues–and to any party–as follows:
after a jury trial, for any reason for which a new trial has heretofore been granted in
an action at law in federal court[.]” FED. R. CIV. P. 59(a)(1)(A).
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

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the basis for the motion. If the motion is made on the basis of an evidentiary ruling
or prejudicial statements by counsel, the district court has broad discretion on
whether to grant or deny the motion and disturb the jury’s verdict. Klein v.
Hollings, 922 F.2d 1285, 1289–90 (3d Cir. 1993). “Admission of evidence is an
abuse of discretion if ‘the district court’s action was arbitrary, fanciful or clearly
unreasonable[.]” Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 519
(3d Cir. 2003).
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, Federal Rule of Civil Procedure 61 provides:
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.
FED. R. CIV. P. 61. Thus, a new trial should only be granted when a party’s
substantial rights have been affected by an error. The Third Circuit has held that in
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considering evidentiary rulings in a civil suit, a nonconstitutional error is a
harmless error “if it is highly probable that the error did not affect the outcome of
the case.” Glass v. Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994).
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

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employment and the decision regarding Dr. Hanna’s discipline (Id); (3) testimony
that Dr. Hanna appointed Dr. Krause as arbiter of Dr. Krug’s disciplinary matter
(Id); (4) the testimony and evidence that Dr. Hanna had been waiting for the email
regarding the termination of Dr. Krug’s employment and sent his own email to key
constituencies within four minutes of receiving it (Id); (5) and Dr. Hanna’s
participation in drafting and distributing a public statement regarding Dr. Krug’s
disclosures after the termination of Dr. Krug’s employment (Id. at 16). Dr. Krug
relies on the standard for deciding renewed judgments as a matter of law, and notes
that “all disputes of fact and inferences must be decided in Dr. Krug’s favor as the
verdict winner, [and] any evidence to the contrary is irrelevant for purposes of
defendants’ post-verdict motion.” (Id.) (citing Lightning Lube, Inc., 4 F.3d at
1166.). Plaintiff also points the court to the case Kengerski v. Harper, 23-1926,
2024 WL 4432081 (3d Cir. Oct. 7, 2024), in which the Third Circuit upheld a
verdict against a prison warden in which there was circumstantial evidence
regarding the warden’s knowledge. (Doc. 206, pp. 17, 18.)
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
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trustees about the termination of Dr. Krug’s employment cannot support a verdict
because “the mere fact that he notified the Council of Trustees upon receiving the
email, does not demonstrate that he participated in the decision-making process.”
(Id. at 4.)
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
§ 1983 claims.
To show that a defendant was personally involved in a constitutional
violation under § 1983, there must be a showing of personal direction,
“participation in[,] or actual knowledge of and acquiescence in the wrongful
conduct.” Rode v. Deallarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988);
Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d 210, 222 (3d Cir. 2015). Liability
cannot be premised solely on a theory of respondeat superior. Evancho v. Fisher,
423 F.3d 347, 353 (3d Cir. 2005).
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.
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194.) While Dr. Hanna testified that he did not know what he was appointing Dr.
Krause for, Dr. Krug also presented the circumstantial evidence regarding the
coinciding dates of Dr. Hanna’s letter stating Dr. Krug was an at-will employee
and Dr. Krug’s PDC. ( Pl’s Exhs. 50, 134.) Additionally, there was evidence that
Dr. Hanna was waiting for the email regarding Dr. Krug’s termination. (Pl’s Exh.
133.) The jury presumably adopted Dr. Krug’s preferred inference that the timing
of these events was not mere coincidence. For the deprivation of liberty interest
claim, Dr. Krug also presented evidence that Dr. Hanna participated in drafting a
statement, which was later used against Dr. Krug in unemployment compensation
proceedings. (Pl’s Exh. 139.) The court must adopt all inferences in favor of Dr.
Krug as verdict winner. This evidence, and adopting all inferences in favor of Dr.
Krug, is sufficient for the jury to have found that Dr. Hanna was personally
involved in the § 1983 First Amendment retaliation and liberty and property
interest deprivation claims against Dr. Krug. Accordingly, the motion is denied.
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
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on McClain and points to the fact that he helped Ms. Crossley report to
Bloomsburg University’s Title IX Office, which was the proper authority as Ms.
Crossley’s employer. (Doc. 206, p. 20.)
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.
43 P.S. § 1423(a). Succeeding on a Whistleblower Law claim requires a plaintiff
to “show not only that he filed a good faith report of wrongdoing or waste, [but] he
must also establish by concrete facts or surrounding circumstances that the report
led to the termination of his employment.” Cipriani v. Lycoming Cnty. Housing
Auth., 177 F.Supp.2d 303, 329 (M.D. Pa. 2001).
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
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Amended Complaint simply avers that he told ‘coworkers’ and ‘members of the
public’ about the defendants’ alleged internet gambling. This omission alone
serves as a death-knell to his Whistleblower status.” Id. at *4. The conclusion
reached by the Western District of Pennsylvania makes sense because failing to
plead an element of a case would certainly be a “death knell” to a case. However,
interpreting this holding to mean that reporting to a someone who is not an
appropriate authority, while also reporting to an appropriate authority, is
unwarranted.
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. Id. §§ 1422, 1423(a). Dr. Krug physically went with Angela
Crossley to Dr. Wislock’s office, the University’s Title IX Coordinator in charge
of Title IX investigations, to assist her in making a good faith report of Dr.
Hanna’s alleged sexual harassment. (Doc. 197, pp. 235–50; Doc. 200, p. 228.)
This satisfies the Pennsylvania Whistleblower Law’s “employer” or “appropriate
authority” requirement. There has not been case law presented to the court
establishing that the fact that Dr. Krug also mentioned the harassment to family
members is relevant or fatal to this claim. Accordingly, the motion is denied.

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3. Qualified Immunity Regarding Dr. Krause
Defendants argue that Dr. Krause is entitled to qualified immunity regarding
the § 1983 claims because he relied on the Ballard Spahr report to reach his
decision regarding Dr. Krug’s employment, and “it cannot be said that it is ‘clearly
established’ that it would be illegal, or even inappropriate, to do so.” (Doc. 205, p.
23.) Defendants argue that there was no evidence to contradict Dr. Krause’s
reliance on the report, and Plaintiff only “offer[ed] what is essentially a conspiracy
theory that this report was a sham, either purposely or out of incompetence or
sloth, or perhaps because Defendant Krause used it as an excuse to fire Plaintiff in
retaliation for assisting in reporting a sexual harassment claim against the
president.” (Id. at 22, 23.)
Dr. Krug argues that Defendants waived this argument because they failed to
raise it in their 50(a) motion, and because it is too vague for consideration. (Doc.
206, pp. 24, 25.) Dr. Krug also argues that Dr. Krause is not entitled to qualified
immunity regarding the § 1983 claims because he does not argue the law, but
rather, recounts his version of the facts, which the jury rejected. (Id. at 26.)
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
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their argument is not vague; rather, it is clear that Dr. Krause “relied on a report
from a law firm and accepted its conclusions, as he is not an attorney. There is no
clearly established law that indicates it is a violation of the law or Dr. Krug’s
rights–let alone inappropriate–for him to do so.” (Id. at 6.) Defendants also
challenge Plaintiff’s “conclusion”5 that Dr. Krause is only raising this defense
regarding the § 1983 claim. Defendants counter “that Defendant Krause accepted
the legal conclusions of an outside law firm, and there is no legal consensus that he
should not have done so, even if that report was erroneous in some way, either
factually or legally.” (Id. at 6.)
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 Rule 50(a)
motion forfeits consideration of that argument on a Rule 50(b) motion, but the
Third Circuit has also plainly held that an affirmative defense, such as qualified
immunity, may be raised for the first time after trial if plaintiff suffers no
prejudice. Williams v. Runyon, 130 F.3d 568, 571–72 (3d Cir. 1997); Sharp, 669

Defendants state it “is not entirely clear” why Plaintiff concluded that Dr. Krause only raises
qualified immunity regarding claims under § 1983. (Doc. 208, p. 6.) However, it is clear to the
court why Plaintiff reached this conclusion: in their opening brief, Defendants only make
arguments regarding the § 1983 claims. (Doc. 205, p. 21.) (“In this case, constitutional claims
were brought against Defendant Krause pursuant to § 1983.”) In their motion, Defendants did
move for judgment as a matter of law in favor of Defendant Krause on all claims, however,
Defendants failed to address all claims in their brief. Accordingly, because Defendant
specifically addresses the § 1983 claims, the court will only examine qualified immunity in the
context of those claims.
5

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F.3d at 158; see also Eddy v. Virgin Islands Water & Power Auth., 256 F.3d 204,
209 (3d Cir. 2001). Neither party has presented case law exactly on point with the
factual circumstances of this case,6 and the court’s independent research has failed
to produce any. Thus, in the absence of binding precedent squarely on point, the
court will not resolve this issue on the basis of waiver, but will address the merits.
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

6

The court notes that the procedural facts of Sharp are different than the procedural facts here.
The defendants in Sharp properly pleaded the affirmative defense of qualified immunity, failed
to raise it at summary judgment, and then raised it again at trial. Sharp, 669 F.3d at 158–59.
The Third Circuit held, on those procedural facts, that defendants had not waived the affirmative
defense. Id. (“Here, Defendants, who pled qualified immunity as an affirmative defense, placed
Sharp on notice of their intent to raise that defense at trial.”) The situation in this case is
different. Defendants properly pleaded the defense in their answer and also argued the issue on
summary judgment, but failed to raise it at any time during the trial, including during their Rule
50(a) motion. Thus, Defendants did not raise this issue at trial, as the defendants in Sharp did.
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those who knowingly violate the law.” Kisela v. Hughes, 584 U.S. 100, 104
(2018) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). A defendant asserting
that he is entitled to qualified immunity has the burden to prove that the doctrine
applies. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014).
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
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right.’” Larsen v. Senate of Commw. of. Pa., 154 F.3d 82, 87 (3d Cir. 1998)
(quoting Anderson v. Creighton, 483 U.S. 635, 650 (1982)). Defining the contours
of the right requires a high degree of specificity, and “[a] rule is too general if the
unlawfulness of the [official’s] conduct ‘does not follow immediately from the
conclusion that [the rule] was firmly established.’” Wesby, 583 U.S. at 63 (quoting
Anderson, 483 U.S. at 641.) Thus, “so long as an official reasonably believes that
his conduct complies with the law, qualified immunity will shield that official from
liability.” Adamo v. Dillon, 900 F. Supp. 2d 499, 509 (M.D. Pa. 2012), aff’d, 539
F. App’x 51 (3d Cir. 2013).
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
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the investigative report, Defendants do not cite any case law in support of this
position. The court has found analogous case law in which the Third Circuit held
that “a police officer who relies in good faith on a prosecutor’s legal opinion that
[an] arrest is warranted under the law is presumptively entitled to qualified
immunity from Fourth Amendment claims premised on a lack of probable cause.”
Kelly v. Borough of Carlisle, 622 F.3d 248, 255–56 (3d Cir 2010). In Kelly, the
Third Circuit explained “[t]hat reliance [on a legal opinion] must itself be
objectively reasonable, however, because ‘a wave of the prosecutor’s wand cannot
magically transform an unreasonable probable cause determination into a
reasonable one.’” Id. at 256. Additionally, “a plaintiff may rebut this presumption
by showing that, under all the factual and legal circumstances surrounding the
arrest, a reasonable officer would not have relied on the prosecutor’s advice.” Id.
The court finds that this case provides a framework for deciding whether Dr.
Krause’s reliance on the report was reasonable. Accordingly, the court will look to
the facts and circumstances surrounding Dr. Krause’s decision to terminate Dr.
Krug’s employment and whether it would be clear to a reasonable official in Dr.
Krause’s position that he could not terminate Dr. Krug’s employment without
violating Dr. Krug’s First or Fourteenth Amendment rights. See Springer v.
Henry, 435 F.3d 268, 280 (3d Cir. 2006).

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Taking the facts in the light most favorable to the plaintiff, a reasonable
official in Dr. Krause’s situation should have known that terminating Dr. Krug’s
employment in these circumstances would violate Dr. Krug’s First and Fourteenth
Amendment rights. There was evidence presented that Dr. Krause and Ms.
Williamson drafted Dr. Krug’s termination letter and statement to the
constituencies prior to his PDC. And there was testimony from Mr. Lehman that
this is not a common or accepted practice within PASSHE. (Plaintiff’s Exhs. 76–
78; Doc. 199, p. 19–23.) Regarding whether reliance on the Ballard Spahr report
was appropriate, there is evidence there was no opportunity for Dr. Krug to make
his objections to the Ballard Spahr report prior to the PDC and that Dr. Krug made
known during the PDC that many of the allegations in the Ballard Spahr report
were false or inaccurate. (Doc. 198, p. 28; Pl’s Exh 65.) There was also testimony
that Dr. Krug made Dr. Krause aware that Dr. Krug believed Dr. Krause was
biased. (Doc. 198, p. 28.) These facts, with all inferences taken in favor of Dr.
Krug as the verdict winner, support a finding that it was not reasonable to
determine the outcome of the hearing prior to the hearing, rely on a report with
noted inaccuracies, and terminate Dr. Krug’s employment due to him speaking on

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a matter of public concern.7 Accordingly, Defendant Krause was not entitled to
qualified immunity and thus, is not entitled to judgment as a matter of law.
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

In its memorandum on summary judgment, this court previously held that “Dr. Krug’s speech
relating to allegations of sexual harassment against a university’s president are a matter of public
concern.” (Doc. 113, p. 25.) Specifically, the court held that “it is clear that Dr. Krug’s speech
in this case can fairly be considered as relating to a matter of concern to the community and
discloses a public official’s misfeasance.” (Id.)(citing Azzaro v. Cnty. of Allegheny, 110 F.3d
968, 978 (3d Cir. 1997)).
7

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unbelievable. (Id. at 10.) Second, he points to Krause’s testimony that he was the
“arbiter” of Dr. Krug’s discipline but that he worked in collaboration with
PASSHE. (Id. at 10.) Third, Dr. Krug points to emails between Krause and
Williamson drafting the message to the University’s key constituencies, which
were drafted prior to Dr. Krug’s PDC. (Id.) Fourth, he points to the aligned dates
of the termination of Dr. Krug’s employment and the decision of Dr. Hanna’s
discipline. (Id. at 11.) Fifth, he points to the fact that PASSHE retained Ballard
Spahr to investigate Dr. Krug’s alleged disclosures. (Id.) Sixth, Dr. Krug notes
that Ballard Spahr, an agent of PASSHE, communicated with Dr. Krause prior to
the PDC. (Id.) Seventh, Dr. Krug relies upon Defendants’ decision not to present
any attorneys from Ballard Spahr or the witnesses that Ballard Spahr interviewed
at trial. (Id.) Eighth, he points to the Ballard Spahr report containing falsehoods
and misrepresenting witness testimony. (Id. at 12.) Ninth, Dr. Krug relies upon
the correspondence between Dr. Krug and Mr. Lehman in which Dr. Krug voiced
his complaints about the process he received, and Mr. Lehman’s reply that
PASSHE had no authority to interfere with the president’s decision of who should
handle Dr. Krug’s matter. (Id.) Tenth, Dr. Krug points to the fact that PASSHE
employee Lisa Sanno actually participated in the PDC. (Id.) And finally, Dr. Krug
relies upon Dr. Hanna’s testimony at trial that PASSHE handled both Dr. Hanna’s
PDC and Dr. Krug’s PDC. (Doc. 200, p. 85.)
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As Plaintiff has laid out, there is ample evidence showing that PASSHE was
personally involved in the termination of Dr. Krug’s employment. Accordingly,
the renewed motion for judgment as a matter of law is denied on this ground.
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

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regarding Dr. Hanna’s time at Delaware Valley University, Dr. Krug notes that the
email was admitted for the limited purpose of showing that “Bloomsburg
University and PASSHE knew about DVU’s faculty’s concerns about how Hanna
treated women but decided to hire him anyway[,]” and this purpose was proper.
(Id. at 30.) Dr. Krug concludes that a full cross-examination of Dr. Hanna was
proper because the Defendants opened the door to evidence regarding whether Dr.
Hanna was “a sexual harasser/discriminator[.] Or [whether] Hanna [was] merely
someone who viewed Ms. Crossley–as Hanna testified and as his counsel
represented in her opening statement–as like his sister. Defendants cannot open a
door and then object to evidence they put at issue.” (Id. at 31.)
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
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circumstances, nor do they address their failure to object to any questioning
regarding Dr. Hanna’s time at Kutztown on a 404(b) basis. (Doc. 206, pp. 30, 31.)
Accordingly, the court will not grant a new trial due to the admission of this
evidence.
In any event, the evidence was admissible for the permissible 404(b)
purpose of showing Bloomsburg and PASSHE’s knowledge of certain allegations
against Dr. Hanna when they hired him. Bloomsburg and PASSHE’s knowledge
was relevant to the causation element of the retaliation claims against the two
entities because this information was helpful to the jury in considering the two
competing theories of the case presented by the parties. Dr. Krug’s theory was that
PASSHE and Bloomsburg terminated his employment in order to protect Dr.
Hanna from further allegations of inappropriate conduct toward women. The
Defendants’ theory was that Dr. Krug’s employment was terminated because he
breached confidentiality rules. Thus, the jury could consider the fact that PASSHE
had awareness of allegations about Dr. Hanna’s conduct towards women at other
institutions, and PASSHE then participated in the termination of Dr. Krug for
reporting about Dr. Hanna’s behavior toward a specific woman. Although the
substance of these allegations may be damaging to Dr. Hanna, the prejudice does
not substantially outweigh the relevance of this category of evidence.

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Defendants did object to the introduction of the anonymous email regarding
Dr. Hanna’s time at Delaware Valley University on the basis that it could not be
authenticated by Dr. Hanna. (Doc. 197, p. 64.) In the course of discussion, Dr.
Krug’s counsel advised the court he was seeking to admit the email “to show that
PASSHE, which hired him [Dr. Hanna], knew all these things[.]” (Id. at 68.)
Defendants’ counsel responded that that purpose was irrelevant to a retaliation
claim or a due process claim. (Id.) Ultimately, the court overruled the objection
regarding the authenticity8 of the document and admitted the email “for the limited
purpose of shedding light on information received by Bloomsburg University and
PASSHE in the form of an anonymous email prior to hiring Dr. Hanna as president
of Bloomsburg University. However, this exhibit is not admitted to prove the truth
of the statements set forth in the anonymous email.” (Id. at 75, 76.)
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 Rule 404(b) purpose, and this evidence was relevant to Bloomsburg and
PASSHE’s decision making processes and motivations. This evidence was not
admitted for the purpose of showing the propensity of Dr. Hanna to behave in a
certain way. Additionally, the evidence was admitted with a limiting instruction,
as requested by counsel.

8

The reasons for overruling this objection are discussed infra.
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While not favorable to Dr. Hanna, the prejudice associated with admitting
this document for a limited purpose does not outweigh the relevance of the
document. As the Third Circuit has opined, “[p]rejudice does not simply mean
damage to the opponent’s cause[,]” but rather, the law guards against unfair
prejudice, which is “prejudice of the sort which cloud[s] impartial scrutiny and
reasoned evaluation of the facts, which inhibit[s] neutral application of principles
of law to the facts as found.” Goodman v. Pa. Turnpike Comm’n, 293 F.3d 655,
670 (3d Cir. 2002). This evidence was relevant and admitted with a limiting
instruction in order to direct the jury’s consideration of it and mitigate prejudice
towards Dr. Hanna. Accordingly, the motion for new trial will be denied on this
ground.
2. Anonymous Email
Defendants argue that an anonymous email identifying allegations of Dr.
Hanna’s previous mistreatment of women was improperly admitted under Rule
901(a) because “[a]nonymous emails cannot be authenticated if an individual
cannot establish who wrote, delivered, or received the e-mail.” (Doc. 205, pp. 28–
30.) (citing Martsolf v. United Airlines, Inc., No. CV 13-1581, 2015 WL 8207435,
at *1 (W.D. Pa. Dec. 7, 2015); United States v. Browne, 834 F.3d 403, 410 (3d Cir.
2016); United States v. Vayner, 769 F.3d 125, 132 (2d Cir. 2014); United States v.
Southard, 700 F.2d 1, 23 (1st Cir. 1983)). Defendants argue that it was not
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established who sent the email, and therefore it was not properly authenticated as
what it purports to be. (Id. at 30.) Defendants further argue that “the contents of
the email were inflammatory, and irrelevant to a retaliation and due process claim.
As a result, Defendants should be granted a new trial, as this evidence was both
inadmissible and was prejudicial beyond repair.” (Id.)
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.)
Federal Rule of Evidence 901(a) provides: “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims
it is.” Fed. R. Evid. 901(a). The burden of authenticating a document is slight and
requires “evidence sufficient to support a finding that the item is what the
proponent claims it is.” United States v. Turner, 718 F.3d 226, 232 (3d Cir. 2013.)
(quoting Fed. R. Evid. 901(a)). The proponent must only make a prima facie case
of authenticity and, ultimately, the jury determines the authenticity of the evidence.
Id. A proponent may authenticate a document in a variety of ways, including
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testimony of a witness with knowledge that “an item is what it is claimed to be.”
Fed. R. Evid. 901(b)(1).
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 Rule 901.
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
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were sent. Id. Here, Dr. Krug never claimed that the email emanated from a
certain person and counsel admitted that this was the email that was sent to
Bloomsburg and PASSHE during Dr. Hanna’s hiring process.
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 Rule 901(a). The Third Circuit noted that “the
relevance of the Facebook records hinges on the fact of authorship. To
authenticate the messages, the Government was therefore required to introduce
enough evidence such that the jury could reasonably find, by a preponderance of
the evidence, that [defendant] and the victims authored the Facebook messages at
issue.” Id. at 410. The case at bar is different because the relevance of the email
does not hinge on the authorship of the email. The relevance of the email was
related to Bloomsburg and PASSHE having received it. Defendants admitted that
they had received it. (Doc. 197, p. 69.) Thus, the email was properly authenticated
based on the purpose for which the evidence was introduced.
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 to be–
Zhyltsou’s [defendant’s] profile page[.]”) (emphasis in original.) Here, there was
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no contention that this email was authored by a specific person and thus, needed to
be authenticated as such. The email was offered as an anonymous email sent to
PASSHE during Dr. Hanna’s hiring process, and counsel conceded that this was
such email.
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
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commonsense solution and consistent with applicable law which would allow
Plaintiff to meet the prima facie elements of his case, but not prejudice defendant
Hanna. (Doc. 206, pp. 41–43.) Dr. Krug then notes that the error lies in defense
counsel abandoning the motion in limine ruling and opening the door to the
underlying facts. (Id. at 44.)
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

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advanced no different arguments than already presented to the court and the court
sees no reason to reconsider its prior rulings at this stage.
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
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accused of sexual harassment is ‘damaging’ to the jury’s perception of him.
However, the court does not believe that simply learning the allegations against Dr.
Hanna involved sexual harassment would render the jury unable to impartially
evaluate the events, or that any prejudice from this fact was substantially
outweighed by the probative value of Plaintiff being able to establish an element of
his case. Defense counsel could have minimized prejudice, as Plaintiff’s counsel
initially did, through argument and testimony. Rather, defense counsel decided to
open the door to a full description of Dr. Hanna’s conduct with Ms. Crossley.
Accordingly, the motion for a new trial will be denied on this basis.
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

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because “[a]n investigation report into the disclosure of confidential information is
not inherently prepared in anticipation of litigation.” (Id. at 36.)
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 Rule 803(6). (Doc. 206, pp. 36–38.) Dr. Krug also points to the
rationale for Rule 803, which is that the regular processes of a business provide
assurance of reliability. (Id. at 38.) Additionally, Dr. Krug distinguishes each case
Defendants relied upon. (Id. at 39.) Finally, Dr. Krug argues that “the point of the
jury not being able to consider the truth of the Ballard Spahr report was because it
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constituted hearsay (defendants chose not to call the report’s authors as witnesses),
and it also contained multiple levels of hearsay of various persons who defendants
chose not to call as witnesses.” (Id. at 40.)
In reply, Defendants, for the first time, attempt to show they have met the
foundational requirements of Rule 803(6). (Doc. 208, pp. 9, 10.) Defendants
argue that the Ballard Spahr attorneys who drafted this report had personal
knowledge because they conducted the interviews; reiterate that the keeper of the
records testified “external documents are routinely kept in the normal course of
business, and that an investigation of this nature is routine[;]” Defendants contest
that Plaintiff’s argument that hiring Ballard Spahr was not a regular practice of
PASSHE, and finally, Defendants argues that Plaintiff “ask[s] the Court to take
him at his word[]” that the interviews in the Ballard Spahr report are “pure
fiction[,]” despite Plaintiff accurately citing to the record wherein he presented
evidence from Ms. Rostucher and Jeffrey Krug that what was contained in the
report was not accurate to what they told interviewers. (Id. at 9, 10; Doc. 206, p.
40.)
Federal Rule of Evidence 803(6) provides:
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;

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(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.
FED. R. EVID. 803(6).
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

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personal knowledge of the foundational requirements at the time the document was
prepared. (Doc. 198, p. 129.) On the merits of the exception, the court found that
Defendants had not satisfied the foundational elements required of Rule 803(6)
because the preparers of the document (Ballard Spahr attorneys) did not have
personal knowledge of the matters related in the report, and additionally, it was not
a regular practice of Bloomsburg University to have outside law firms prepare
investigative reports. (Id.) Rather, Ms. Williamson simply testified that it was
common for Bloomsburg to maintain documents prepared by outside parties. (Id.)
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
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custodian, Defendants argue a proper records custodian need only “understand[]
the system used to prepare the records.” (Doc. 205, p. 35) (quoting Conoco Inc. v.
Dep’t of Energy, 99 F.3d 397, 391 (Fed. Cir. 1996)). Ms. Williamson did not
testify to this effect. She testified regarding the University’s process of hiring a
third party to conduct a report, but she did not testify about having any knowledge
as to how this specific report was prepared nor did she testify as to the University’s
process for maintaining reports, just that the University maintains outside third
party reports. (Doc. 198, p. 117–126.) This is insufficient to qualify her as a
records custodian. However, even if Ms. Williamson was a proper custodian, her
testimony did not present the foundational requirements in any event because she
was not employed by the University when the record was created or received by
the University. Pelullo, 964 F.3d at 201. In substance, Ms. Williamson basically
testified that this report was saved in a file by the University during her
employment with the University (which was later than when the document was
created and received).
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
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Rule 803(6). (See Doc. 198, p. 127; Doc. 208, pp. 9, 10.) This explanation does
not change the testimony presented at trial, which did not establish the
foundational requirements of Rule 803(6).
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

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