TSHUDY v. PENNSYLVANIA STATE UNIVERSITY
Filing
42
MEMORANDUM (Order to follow as separate docket entry) re: 26 MOTION for Preliminary Injunction filed by Trisha Tshudy. Signed by Chief Judge Matthew W. Brann on 11/18/2022. (jr)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 4:22-CV-01431
TRISHA TSHUDY,
(Chief Judge Brann)
Plaintiff,
v.
PENNSYLVANIA STATE
UNIVERSITY,
Defendant.
MEMORANDUM OPINION
NOVEMBER 18, 2022
Plaintiff Trisha Tshudy is a law student with a documented disability, and her
law school—Penn State Dickinson Law—accommodated her disability in a variety
of ways. These accommodations included rescheduled and delayed examinations,
virtual class attendance, extension of time during examinations, a private room for
examinations, and more. During her 2L year, Penn State’s Honor Committee found
plagiarism in one of Tshudy’s final papers. After an Honor Committee hearing
confirmed that Tshudy had plagiarized, Tshudy was not expelled. Instead, she was
reprimanded, instructed to attend counseling, and informed that her full-tuition
scholarship would be revoked going forward.
Because Tshudy cannot re-enroll until her current tuition balance is paid, she
now moves to enjoin Penn State from revoking her scholarship so she can go back
to school for free, even after plagiarizing. But the standard for injunctive relief in
federal court is a very high one, and Tshudy’s Motion does not satisfy that standard.
Her Motion for a Preliminary Injunction is denied for the reasons set forth below.
I.
BACKGROUND
Plaintiff Trisha Tshudy is a student at Dickinson Law School, an accredited
law school of The Pennsylvania State University (known as “Penn State,” and the
Defendant in this case), where she received a full-tuition scholarship and was
granted accommodations for a documented disability.1 Those accommodations
included, among other allowances, remote enrollment for classes during the Fall
2021 semester and the ability to take her course examinations with extra time in a
private room.2 Tshudy alleges that Penn State then discriminated against her when
they refused to allow her to take her exams remotely.3
Taking the exams on campus, Tshudy alleges, caused her to become ill, which
resulted in her submitting an “incomplete” final paper to Adjunct Professor James
M. Gould for the course entitled “Biotech, Pharmaceuticals and the Law.”4 Penn
State avers that the law school had made clear to Tshudy that, despite her allowance
to attend classes remotely, she would be required to take her examinations in-person
and on campus.5 The law school also alleges that Tshudy did not ask for an extension
of time to submit her final paper for Professor Gould’s class or otherwise
1
2
3
4
5
Doc. 1 at ¶¶ 5, 8-9.
Doc. 28 at p. 2.
Doc. 1 at ¶ 10.
Id. at ¶¶ 11-13; see Doc. 28 at p. 7.
Doc. 28 at pp. 3-4.
2
communicate that she was having any trouble with the assignment or with meeting
the deadline.6
When Professor Gould reviewed Tshudy’s paper, he alerted Penn State
academic administrators that he suspected Tshudy had committed plagiarism
because her paper “exhibited a high degree of tracking with a Note published by
Hannah-Alise Rogers[.]”7 Penn State then used plagiarism comparison software to
compare Tshudy’s paper to the Rogers Note, which revealed that 29% of Tshudy’s
paper was indeed uncited content pulled directly from the Rogers Note.8 The law
school also performed a manual comparison of Tshudy’s paper against the Rogers
Note, and found that even more content in Tshudy’s paper had been lifted from
Rogers’ work.9
When Tshudy enrolled at Penn State, she signed the Dickinson Law Honor
Code, which defines “plagiarism” and sets forth the procedures for adjudicating
alleged substantive violations of the Code (including allegations of plagiarism).10
Because Penn State found that Tshudy may have plagiarized, Penn State initiated
disciplinary proceedings against her.11 Tshudy alleges that she was denied counsel
6
7
8
9
10
11
Id. at p. 5.
Id. at p. 7.
Id. at p. 7.
Id. at pp. 7-8.
Id. at p. 6.
Id. at p. 8.
3
during this proceeding and unable to “cross-examine” the software that had revealed
her offense.12
The hearing took place on January 14, 2022; Tshudy attended and did not
bring an attorney.13 While Penn State argues that the Honor Code expressly allows
for students to appear at hearings with legal representation, Tshudy alleges that she
was “denied” counsel.14 After the hearing, the Honor Code Committee found that
Tshudy violated the Honor Code and imposed a number of sanctions on her,
including a written reprimand to appear in her record and denial of credit for
Professor Gould’s course.15 Despite this finding, Tshudy was not expelled from Penn
State.16 She remains to this day a matriculated student of the law school, but—due
to her violation of the Honor Code—she is not considered to be in “good” academic
standing.17
On February 16, 2022, Dean Danielle Conway of Dickinson Law sent Tshudy
an e-mail informing Tshudy that her scholarship would be revoked because she was
no longer in good academic standing.18 Conway’s e-mail stated that Tshudy’s
12
13
14
15
16
17
18
Doc. 27 at p. 1.
Id. at p. 9.
Id.; Doc. 1 at ¶ 23.
Doc. 28 at p. 11. (“The Hearing Board also made the following factual findings: (a) Ms. Tshudy
had drawn upon and sometimes copied verbatim the Note published by Rogers in 2014 when
preparing her assignment for Professor Gould in violation of the court instructions and of the
Honor Code; and (b) Ms. Tshudy was at least disingenuous, and, at worse dishonest in
explaining the similarities between the Rogers Note and her own paper.”)
Id.
Id. at p. 12.
Id.
4
scholarship would not be retroactively revoked for her first three semesters (i.e., Fall
2020, Spring 2021, Fall 2021), but that it was revoked effective the Spring 2022
semester and would remain revoked for Tshudy’s third year.19 Accordingly, the email advised Tshudy that she had a tuition balance of $26,688 and was free to contact
the University’s Financial Aid office should she wish to apply for loans or inquire
about other available assistance to cover this balance.20 Penn State maintains that “at
the time her scholarship was revoked, Tshudy had sufficient time to apply for and
receive financial aid to allow for any loans to satisfy her outstanding balance . . . and
cover the cost of her remaining semesters at Dickinson[.]”21
The parties disagree about what happened next. Tshudy alleges that she
reached out to the Financial Aid office many times and was ignored, whereupon she
reached out to the Penn State Bursar’s Office instead.22 Tshudy argues that the
Bursar’s Office told her that Penn State had not followed proper procedures in
revoking her scholarship, and that it could not be revoked.23 At that point, Tshudy
alleges, Conway instructed Tshudy not to speak to anyone about the information she
received from the Bursar’s Office.24 Penn State agrees that Tshudy did contact
various administrative offices, including the Bursar’s Office, but asserts that she did
19
20
21
22
23
24
Id.
Id.
Id. at p. 13.
Doc. 1 at ¶ 16.
Id.
Id. at ¶ 17.
5
not do so to discuss loans or financial aid to cover her tuition balance; instead, Penn
State asserts, Tshudy asked the Bursar’s Office to reinstate her scholarship, which
she claimed had been removed due to an “administrative error.”25
According to Penn State, there had been no such error, and Tshudy had been
advised of the reasons why her scholarship had been revoked.26 Conway’s e-mail to
Tshudy, then, did not forbid her from speaking to financial administrators, but rather
only instructed her to “refrain from communicating to employees of Penn State
University and Dickinson Law that there was an administrative mistake regarding
the revocation of [Tshudy’s] scholarship.”27 Neither party alleges that Tshudy has
attempted to take out loans and/or secure alternative financing, or that she has been
unable to do so. Penn State avers that she remains a matriculated student and is free
to resume her studies upon payment of her tuition balance.28
Tshudy filed suit against Penn State on August 21, 2022, and moved for a
preliminary injunction on September 14, 2022.29 Her Motion seeks to enjoin Penn
State from “taking any action barring [Tshudy] from completing her third year as a
law student at Dickinson Law School . . . or revoking her scholarship.”30 That Motion
is has been fully briefed and is ripe for disposition.31
25
26
27
28
29
30
31
Doc. 28 at p. 13.
Id.
Id.
Id. at p. 1.
Doc. 26.
Id.
Docs. 26, 27, 28.
6
II.
LAW
The United States Court of Appeals for the Third Circuit has established that
preliminary injunctive relief is an “extraordinary remedy” that “should be granted
only in limited circumstances.”32 In determining whether to grant a request for a
preliminary injunction, courts consider four factors: (1) “whether the movant has
shown a reasonable probability of success on the merits”; (2) “whether the movant
will be irreparably injured by the denial of relief”; (3) “whether granting preliminary
relief will result in even greater harm to the nonmoving party”; and (4) “whether
granting the preliminary relief will be in the public interest.”33 Factors three and four,
however, are only considered if the “movant meet[s] the threshold for the first two
most critical factors: [she] must demonstrate that [she] can win on the merits (which
requires a showing significantly better than negligible)” and that “[she] is more
likely than not to suffer irreparable harm in the absence of preliminary relief.”34
III.
ANALYSIS
A.
Likelihood of Success on the Merits
Tshudy argues that she will likely succeed on the merits because “there is no
dispute that the University required her to take a final examination in person[,] which
32
33
34
Kos. Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citations omitted) (quoting
Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994));
see Philadelphia Vietnam Veterans Mem’l Soc’y v. Philadelphia, No. 21-1125, 2022 U.S. App.
LEXIS 7629, at *5-6 (3d Cir. Mar. 23, 2022).
Crissman v. Dover Down Ent. Inc., 239 F.3d 357, 364 (3d Cir. 2001).
Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017) (internal citations omitted).
7
was in violation of the right to reasonable accommodation.”35 Penn State, on the
other hand, argues that Tshudy cannot demonstrate likelihood of success on the
merits for any of her three asserted claims. The Court agrees with Penn State.
i.
Tshudy’s Due Process Claim
Tshudy alleges that her due process rights were violated when she was not
given counsel at the Honor Committee hearing or allowed to “cross-examine” the
non-sentient computer software used by Penn State to uncover her plagiarism, or her
other accusers.36 Tshudy also alleges that her due process rights were violated
because it was unlawful for Penn State to use the software they chose to use without
Tshudy’s consent,37 but those allegations do not make sense within the scope of due
process analysis and this Court declines to analyze them.
Penn State argues that Tshudy’s due process allegations will fail because
Tshudy was given the opportunity to be heard in a meaningful manner by an
impartial decision-maker at the hearing—indeed, she testified, examined witnesses,
and made closing remarks.38 Additionally, Penn State argues that it did not “deny”
35
36
37
38
Doc. 27 at p. 3. But is this the gravamen of her claims, that she was forced to take examinations
in person? Or is it that she was denied due process during the Honor Committee hearing? Or
that she was instructed not to deceive staff in the University’s administrative offices? It is not
this Court’s job to opine between the lines of this non-linear narrative. Success “on the merits”
certainly means more than whether a plaintiff can demonstrate that one fact in an alleged chain
of events is true.
Doc. 1 at ¶¶ 31-32.
E.g., Id. at ¶¶ 33-34 (“Ms. Tshudy’s paper was illegally submitted to Turnitin by defendant,
since her permission was a sine non qua for the use of Turnitin” and “The Turnitin End-Use
License Agreement requires that Tshudy would have had to agree to what defendant did
surreptitiously and without her consent.”)
Doc. 28 at p. 20.
8
Tshudy counsel, as the Honor Code provides that the accused student “has the right,
at their own expense, to secure legal representation for any stage of the Honor
proceeding.”39 Regarding Tshudy’s arguments about her inability to “crossexamine” the plagiarism-checking software Penn State used, Penn State argues that
it was under no obligation to conduct the hearing subject to the Federal Rules of
Evidence, and that the use of the software and presentation of its findings did not
violate Tshudy’s due process rights.40 The Court agrees with Penn State.
Due process is a “flexible concept and the process due in any situation is to
be determined by weighing: (1) the private interests at stake; (2) the governmental
interests at stake; and (3) the fairness and reliability of the existing procedures and
the probable value, if any, of additional procedural safeguards.”41 Although “the Due
Process Clause protects students during disciplinary hearings at public institutions,”
“[t]here is not a specific format that these proceedings have to follow, so long as the
university provides sufficient protections to comply with due process.”42
Procedural due process “requires that a deprivation of life, liberty, or property
be preceded by notice and opportunity for hearing appropriate to the nature of the
39
40
41
42
Id.
Id.
Palmer v. Merluzzi, 868 F.2d 90, 95 (3d Cir. 1989) (quoting Mathews v. Eldridge, 424 U.S.
319 (1976)).
Van Le v. Univ. of Med. & Dentistry, 379 Fed. Appx. 171, 174 (citing Sill v. Pennsylvania
State University, 462 F.2d 463, 469 (3d Cir. 1972)).
9
case,” and the type of notice and hearing “depends on the context.”43 In the academic
context, “more informal forms of notice and hearings suffice.”44 If a university
dismisses a student for academic reasons, “it need only provide an informal giveand-take between the student and the administrative body responsible for the
dismissal.”45
In the context of due process rights for students within state universities, the
Third Circuit has stated: “[C]ourts are generally ill-equipped to review subjective
academic appraisals of educational institutions, and [the Supreme Court]
admonished courts to permit university faculties a wide range of discretion in
making judgments as to the academic performance of students.”46 Further, “[t]he
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner” by “an impartial decisionmaker”—
those decisionmakers are “presumed to be impartial, and only evidence of ‘actual
bias or a likelihood of bias’ can support a due process claim.”47 And that alleged
prejudice “must be based on more than mere speculation and tenuous inferences.”48
43
44
45
46
47
48
Keles v. Bender, No. 21-1497, 2022 U.S. App. LEXIS 7373, at *8 (3d Cir. March 18, 2022)
(internal citations omitted).
Id.
Id.
Hankins v. Temple University, 829 F.2d 437, 444 (3d Cir. 1987) (citing Bd. of Curators of the
Univ. of Mo. v. Horowitz, 432 U.S. 78, 98 (1978) and Regents of the Univ. of Mich. V. Ewing,
474 U.S. 214 (1985)).
Park v. Temple Univ, 757 F. App’x 102, 106 (3d Cir. 2018) (citing Sill, 462 F.2d at 469.
Osei v. Temple Univ., No. 10-2042, 2011 U.S. Dist. LEXIS 113431, at *11 (E.D. Pa. Sept. 30,
2011), aff’d 518 F.App’x 86 (3d Cir. 2013).
10
Here, Tshudy’s due process claim is unlikely to succeed on the merits, and the
reason for this is quite simple. Tshudy has not been dismissed from Dickinson Law;
she is still a non-matriculated student who is free to enroll in classes once she pays
the remainder of her tuition balance. Yes, her scholarship was revoked, but it was
only revoked after the Honor Committee held a hearing where Tshudy gave remarks,
questioned witnesses, and meaningfully participated for the hours-long proceeding.
Under these facts, Tshudy was given the opportunity to be heard in a serious manner
(in a formal hearing) by an impartial decisionmaker (the Honor Committee).
Most fatal to Tshudy’s due process claim, however, is that fact that it is
brought in the context of an academic disciplinary hearing at a state university—and
there is no law establishing that the rights Tshudy alleges to have been violated exist.
First, Tshudy’s allegations imply that she had a right to university-provided counsel.
But no such right exists for accused students in this context.49 Tshudy similarly
alleges that Penn State violated her right to Procedural Due Process when it failed to
provide her with “expert advice” on how to “cross-examine” the Turnitin software
program.50 Again, due process affords accused state university students of no such
right. While Tshudy chose not to have an attorney present for the hearing, Penn State
did not “bar” her from retaining counsel. Most importantly, though, Penn State is
49
50
See Hewlette-Bullard v. Pocono Mountain School District, 522 F. Supp. 3d 78, 100 (M.D. Pa.
2021) (holding that while a school district must provide effective notice and an informal
hearing, “[t]o satisfy due process, the district is not required to provide the student an
opportunity to secure counsel, cross-examine witnesses, or call his own witnesses”).
Doc. 1 at ¶ 31.
11
correct in its assertion that academic institutions are under no obligation to provide
counsel to accused students in the context of state university disciplinary
proceedings.51
Finally, Tshudy’s allegations do not overcome the presumption of impartiality
to which this Court is bound to hold Penn State, nor do they allege actual bias.
Conversely, Penn State’s arguments lead this Court to believe that Penn State could
likely establish that the university had robust procedures in place to ensure
impartiality (e.g., Penn State had a detailed and thorough Honor Code in place,
which Tshudy and all students were required to read and affirm52), and that the
Committee was not biased against Tshudy on account of her disability—indeed,
neither party asserts that the Honor Committee demonstrated bias against her on
account of her disability. For these reasons, this Court finds that Tshudy’s due
process claim is unlikely to survive on the merits.
ii.
Tshudy’s Discrimination (ADA) Claim
Tshudy alleges that Penn State discriminated against her under the Americans
with Disabilities Act (“ADA”) by forcing her to take her Fall 2021 examinations on
campus to the detriment of her health.53 She also alleges that Penn State violated her
right to certain accommodations, to which she alleges Penn State had agreed and
51
52
53
Hewlette-Bullard, 522 F. Supp. 3d at 100.
Doc. 28 at pp. 6-7.
Doc. 1 at ¶ 41.
12
upon which she detrimentally relied.54 It follows, then, that those accommodations
would have been a stark exception to Penn State’s policy requiring students to take
examinations on campus (a policy Penn State alleges to exist).55
As this Court has stated, plaintiffs who allege violations under the ADA “may
proceed under any or all of three theories: disparate treatment, disparate impact, and
failure to make reasonable accommodation.”56 Penn State alleges that “it is unclear
from [Tshudy’s] Complaint and Amended Motion for Injunction what theory of
liability Ms. Tshudy is asserting under the ADA,”57 and this Court agrees—though
because the Complaint’s language arguably resembles that required for a “failure to
accommodate” claim, I will proceed assuming that Tshudy intended to being such a
claim. To be clear, Tshudy has not alleged facts or legal arguments suggesting she
is seeking relief under disparate treatment or disparate impact causes of action.
A “failure to accommodate” claim under the ADA requires a plaintiff to show
the following: “(1) that [she] is a disabled person within meaning of the ADA; (2)
[she] is otherwise qualified to perform essential functions of the job, with or without
reasonable accommodations by employer [or in this case, university]; and (3) [she]
has suffered otherwise adverse employment [or in this case, education] as a result of
54
55
56
57
Doc. 10 at p. 6.
Doc. 28 at pp. 3-4.
Frazier v. Pa. State Univ., No. 4:21-cv-00350, 2022 U.S. Dist. LEXIS 89811, at *14 (M.D.
Pa. May 18, 2022) (quoting Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown,
294 F.3d 35, 48 (2d Cir. 2002)).
Doc. 28 at p. 21.
13
discrimination.”58 In assessing a failure to accommodate claim, courts consider the
following: (1) whether the requested accommodation is reasonable; (2) whether it is
necessary; and (3) whether it would fundamentally alter the nature of the program.59
Tshudy alleges that she received accommodations from Penn State to take her
examinations online, and Penn State refutes this claim, stating that Tshudy never
requested to take her examinations online and instead cooperated with Penn State’s
known policy requiring students to take their examinations on campus.60 Penn State
alleges a long history of accommodating Tshudy’s disability in a variety of ways,
including a 100% extension of time to take examinations, an allowance to take
examinations in a private room with close proximity to a restroom, an allowance to
take breaks as needed during examinations, accommodation for Tshudy’s service
animal during the course of the examinations, and an allowance to have food,
beverages, and medications available and accessible to Tshudy during the course of
the examinations.61 Penn State even e-mailed Tshudy photographs of the
examination room and a description of the exit path from the testing room to the
restrooms.62
58
59
60
61
62
Strausser v. Gertrude Hawk Chocolates, Inc., No. 3:15-cv-2458, 2018 U.S. Dist. LEXIS
48794, at *5 (M.D. Pa. Mar. 26, 2018).
See Berardelli v. Allied Services Institute of Rehabilitation Medicine, 900 F.3d 104, 123 (3d
Cir. 2018).
Doc. 28 at p. 22.
Id. at pp. 3-4.
Id. at p. 5.
14
Tshudy’s ADA claim is unlikely to succeed on the merits because she likely
cannot establish that she explicitly requested, and Penn State granted, an
accommodation specifically allowing her to take her examinations remotely. Tshudy
alleges that Penn State had granted her an accommodation for “remote enrollment,”
but she does not specify how and whether that accommodation applied to
examinations—and her back-and-forth with Penn State administrators to make sure
that the testing environment would accommodate her disability indicate the opposite
of what Tshudy alleges, i.e., that she was aware of, and cooperative with, the oncampus testing requirement.63
In failing to demonstrate the existence of a remote test-taking accommodation,
Tshudy therefore likely cannot “describe what reasonable accommodations she
required or requested, nor [can] she describe what reasonable accommodations
[Penn State] denied.”64 And where a plaintiff “does not provide the Court with any
indication of what occurred to support her disability allegations, the Court cannot
engage in the necessary individualized assessment to determine whether she can
state a claim under the ADA.”65 Therefore, Tshudy’s ADA claim is unlikely to
succeed on the merits because she cannot satisfy the elements for a failure to
accommodate cause of action.
63
64
65
Doc. 1 at ¶ 9.
Geronimo v. Ford, No. 3:20-CV-02145, 2021 U.S. Dist. LEXIS 173870, at *16 (M.D. Pa. Sept.
14, 2021).
Id. at *17.
15
iii.
Tshudy’s First Amendment Claim
Tshudy alleges that her “First Amendment rights were violated when she was
instructed by Dean Conway not to discuss with any employees the Bursar’s
statement that her scholarship was illegally revoked.”66 To support this claim,
Tshudy attached to her Complaint and Motion the allegedly offending e-mail from
Conway to Tshudy, which this Court will quote in full below:
I have received the notes from the University Bursar about your calls
to this office. I confirmed that you contacted Penn State University
Bursar and Student Financial Services on April 6, 2022. The Bursar’s
Office confirmed that you communicated to them that your scholarship
was ‘removed in error.’ I also confirmed that on April 27, 2022 the
Bursar’s Office instructed you to contact the Dickinson Law Financial
Aid Office . . . Again, I direct you to await the decision of the
Affirmative Action Office. Until then, please refrain from
communicating to employees of Penn State University and Dickinson
Law that there was an administrative mistake regarding the revocation
of your scholarship.67
Tshudy’s alleged theory of liability here is unclear, so this Court will proceed
by assuming that Tshudy is bringing a claim of retaliation under the First
Amendment, applied to state actors via Section 1983. Such a claim has three
elements: (1) constitutionally protected conduct; (2) retaliatory action sufficient to
deter a person of ordinary firmness from exercising [her] constitutional rights; and
(3) a causal link between the constitutionally protected conduct and the retaliatory
action.68
66
67
68
Doc. 10 at ¶ 16(e); see Doc. 28 at p. 23.
Doc. 1, Ex. B.
Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).
16
As this Court has stated, “de minimus responses to protected speech such as
criticism, false accusations, or verbal reprimands do not rise to the level of actionable
retaliation.”69 The facts pled, and indeed, Conway’s e-mail itself (which forms the
basis of Tshudy’s claim) can, at most, be plausibly understood to be no more than
criticism, false accusation, or reprimand. This Court finds Penn State’s citation to
the Third Cicruit’s decision in Revell v. City of New Jersey appropriate and
instructive here.70 In that case, the plaintiff alleged that defendants had violated her
First Amendment rights by instructing her to stop a letter-writing campaign that was
critical of the City of Jersey City and its employees.71 The Third Circuit affirmed
this decision, holding that the instruction the plaintiff/appellant received was “the
equivalent to a few criticisms, admonishments, or verbal reprimands” not giving rise
to a First Amendment violation.72
This Court explored this standard in Herman v. Hosterman, where a plaintiff
police officer brought a Section 1983 First Amendment Claim against a municipality
and police chief, alleging that defendants retaliated against him and violated his First
Amendment rights by conducting an investigation of plaintiff that was based on
allegedly warrantless allegations of harassment.73 Plaintiff alleged that the stress of
69
70
71
72
73
Herman v. Hostram, No. 1:11-cv-989, 2011 U.S. Dist. LEXIS 120750 (M.D. Pa. Oct. 19, 2011)
(internal citations and quotations omitted).
Doc. 28 at pp. 25-26; 394 Fed. Appx. 903 (3d Cir. 2010).
Revell, 394 Fed. Appx. At 905.
Id. at 907; see Herman, 2011 U.S. Dist. LEXIS at *9-10.
Herman, 2011 U.S. Dist. LEXIS at *4.
17
this incident gave him hypertension, which caused him to suffer various harms and
prevented him from being able to continue working for a period of time.74 The
plaintiff did not allege that he was ever disciplined as a result of the investigation or
that any adverse action had been taken against him as the result of the investigation.75
In analyzing these allegations, this Court found that the alleged conduct of the
defendants did not satisfy the “person of reasonable firmness” standard, specifically
holding that “[p]laintiff has done nothing more than make a conclusory statement
regarding [the defendant’s] ‘deep antagonism’ without any supporting factual
allegations raising the allegation beyond the speculative level. . . [t]hese allegations
are precisely the type of de minimus allegations that the Third Circuit has found are
insufficient to support a claim for First Amendment retaliation [under Revell].”76
Dean Conway’s e-mail to Tshudy is akin to the instruction the
plaintiff/appellant received in Revell. There, the plaintiff was explicitly told to stop
an entire letter-writing campaign, and the Third Circuit affirmed the District Court’s
finding that no First Amendment violation had taken place. Here, Tshudy was
instructed to “please refrain” from making certain statements to Penn State
employees in certain offices. Guided by this Court’s analysis in Herman, a person
of ordinary firmness would not interpret Dean Conway’s e-mail as a deterrent to
First Amendment expression. As in Herman, Tshudy’s allegations are speculative—
74
75
76
Id.
Id.
Id. at *10.
18
the Complaint implies that Conway’s e-mail was motivated by a desire to keep
Tshudy from revealing to the Bursar’s Office that the law school had revoked her
scholarship in error, but aside from this conclusion, it pleads no additional facts that
can shift this claim from speculative territory into fertile ground.
This Court agrees with Penn State that Dean Conway’s e-mail “merely
requested that Tshudy stop misrepresenting to Penn State and/or Dickinson Law
employees that her scholarship was revoked in error when it was not.”77 Dean
Conway’s e-mail does not constitute actionable retaliation and Tshudy’s First
Amendment claim is unlikely to succeed on the merits.
B.
Irreparable Harm
Tshudy argues that denial of injunctive relief will result in her suffering
irreparable harm “since [she] will not be able to complete her third year of law school
unless she is immediately allowed to resume classes.”78 Penn State argues that the
university is not barring Tshudy from completing her third year of law school, and
that she is free to re-enroll as soon as she pays her tuition balance.79 In making this
argument, Penn State cites to a number of cases from this Court and from within this
judicial Circuit, all of which support a finding that loss of a scholarship, and delayed
academic pursuits, do not constitute irreparable harm under the injunctive relief
77
78
79
Doc. 28 at p. 24.
Doc. 26.
Doc. 28 at pp, 26-27.
19
standard. In keeping with that line of precedent and applicable cases, this Court
agrees with Penn State.
In demonstrating irreparable harm under the injunctive relief standard,
“[e]stablishing a risk of irreparable harm is not enough. A plaintiff has the burden of
proving a clear showing of immediate irreparable injury.”80 Additionally, “[t]he
requisite feared injury or harm must be irreparable—not merely serious or
substantial,” and “it must be of a peculiar nature, so that compensation in money
cannot atone for it.”81 The question then for this Court is whether Tshudy is being
irreparably harmed by the revocation of her scholarship and resulting delay in her
studies until she can pay the tuition balance.
In Howe v. Pa. State Univ. – Harrisburg, this Court answered this question in
the negative.82 There, the plaintiff (a student at Penn State’s Harrisburg campus) also
had his scholarship revoked after being disciplined by the university.83 He argued
that the suspension of his studies would force him to “take an entire year off of his
education,” which would prevent him from completing his education “in a timely
and ordinary manner.”84 This Court found that the plaintiff had not suffered
irreparable harm, because the loss of scholarships can be compensated for with
80
81
82
83
84
Ecri v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987); see Adams v. Freedom Forge
Corp., 204 F.3d 475, 487 (3d Cir. 2000); Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86,
91 (3d Cir. 1992).
Ecri, 809 F.2d at 226.
No. 1:16-0102, 2016 U.S. Dist. LEXIS 11981, at *19-20 (M.D. Pa. Feb. 2, 2016).
Id.
Id.
20
monetary damages.85 As for the delay in education, this Court also found that such
a delay “does not constitute irreparable harm which would not be compensated with
monetary damages in the future, if warranted.”86 Penn State also cited Doe v.
University Sciences, where the District Court held that any “loss of scholarship
money can undeniably be compensated by monetary damages.”87
Because Tshudy is alleging that her irreparable harm is the loss of her
scholarship and the delay of her law school career, and because this Court has held
that loss of scholarship money and a delay in educational pursuits are compensable
with monetary damages and therefore do not constitute irreparable harm, Tshudy has
failed to demonstrate that she will suffer irreparable harm if this Court does not grant
a preliminary injunction.
IV.
CONCLUSION
To obtain injunctive relief, Tshudy must demonstrate both a reasonable
probability that her claims will succeed on the merits, and that she will more than
likely suffer irreparable harm absent court intervention. She has shown neither.88
Accordingly, her Motion for a Preliminary Injunction is denied.
85
86
87
88
Id.
Id. (citing, e.g., Schulman v. Franklin & Marshall Coll., 371 Pa. Super. 345, 538 A.2d 49, 52
(Pa. Super. 1988) (student failed to establish that he would be irreparably harmed absent an
injunction, as he could be compensated by money damages for time lost from the classroom)).
No. 19-358, 2020 U.S. Dist. LEXIS 158684, at *10 (E.D. Pa. Sept. 1, 2020).
Because this Court has found that Tshudy fails to satisfy the first two factors required for a
preliminary injunction, I need not analyze factors three and four. See Reilly v. City of
Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017).
21
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
22
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