SCRANTON – The University of Scranton’s Faculty Affairs Council contends that the institution was right to fire a former professor, the latter of whom has charged that his constitutional rights to privacy and bodily autonomy were violated when the institution attempted to force him to disclose his COVID-19 vaccination status.
Benjamin Bishop of Orangeville first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Nov. 16 versus the University of Scranton, the University of Scranton’s Faculty Affairs Council and Jeffrey Gingerich, the University of Scranton’s former Provost and Senior Vice-President for Academic Affairs.
“At all times germane hereto, the plaintiff was a tenured full professor at the University of Scranton. All parties were bound by the provisions of the faculty handbook of the University of Scranton dated May 24, 2021. Pursuant to the terms and conditions of the aforementioned contract, the plaintiff could only be terminated by the defendant for financial exigency, discontinuance of a program, national emergency, major catastrophe or dismissal for adequate cause,” the suit said.
“Adequate cause for dismissal relates directly and substantially to the fitness of a faculty member in the faculty member’s professional capacity as a teacher and researcher. The contract specifically provides that dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights as American citizens. The defendant university violated the contract between the plaintiff and defendant by terminating the plaintiff from the university on May 10, 2022, ostensibly for refusing to disclose his COVID-19 vaccination status.”
The suit added that the plaintiff, who was in fact fully vaccinated, did not believe that it was the defendant university’s right to compel him to disclose his vaccination status and that he had “ethical concerns” about the university’s policies related to COVID-19.
“Through the actions of defendant and other non-party individuals and entities, vaccines have become politicized to a point whether receiving or declining a vaccine has become a political act in the eyes of the public, and being compelled into discussing one’s vaccine status is compelling that person to engage in political speech,” the suit stated.
“Disclosing one’s status as not vaccinated against COVID-19 has become politicized in such a way that the expressing of one’s opposition has acquired a political meaning: Bringing public derision down upon the individual or, in fewer instances, garnering public acclaim for the individual, largely depending on the political beliefs of the public toward coerced governmental action against its citizens. Because of its intensely toxic political nature, disclosing one’s COVID-19 vaccination status holds the intent, weight and social effect of partisan political speech, and should be treated as such by this Honorable Court.”
Bishop added that terminating him for refusing to disclose his vaccination status constituted a breach of his employment contract with the university, that he was not permitted to be present at the hearing when his termination was considered and that he was defamed by defendant Gingerich for refusing to disclose his vaccination status, among other allegations.
Counsel for the University of Scranton and Gingerich filed a motion to dismiss the complaint on Jan. 30, countering that the complaint failed to state claims upon which relief could be granted.
“Plaintiff brings a number of claims against the University stemming from his termination, none of which is cognizable. Plaintiff asserts assorted constitutional claims against the University (Counts I, II, and VI), but plaintiff has not alleged (and cannot allege) that the University of Scranton – a private, Catholic university – is a state actor. Even if the University were a state actor, each claim fails because plaintiff’s constitutional rights were not violated: He was not compelled to engage in speech (Count I), his bodily autonomy was not violated (Count II), and the law was not selectively enforced against him (Count VI),” according to the defendants’ dismissal motion.
“Plaintiff’s remaining claims fare no better. Plaintiff alleges his termination violated public policy (Count III) – an exceptionally difficult claim to plausibly allege – but there is no public policy against terminating an employee who willfully violates a University health and safety policy, and the claim is preempted by federal law because the Faculty Handbook is a collectively bargained for agreement. Plaintiff also brings a claim for breach of the Faculty Handbook’s termination provisions and process requirements (Counts IV and V). Plaintiff is barred from challenging the outcome of his disciplinary proceedings in this Court pursuant to the Faculty Handbook and under well-settled Pennsylvania law. Even if he could bring such a claim, he was terminated because his non-compliance with the vaccine policy rendered him unfit to serve as a professor, which met the Faculty Handbook’s ‘adequate cause’ requirement for termination.”
The motion added that Bishop “also has no viable due process claim because he has not alleged that he was deprived of any process owed to him” and that the majority of his process-oriented complaints “stem from his choice to skip the hearing concerning his misconduct because attending required him to wear a mask and take a COVID-19 test.”
“Plaintiff’s final cause of action is for defamation (Count VII) against the University and Provost Gingerich. Plaintiff alleges he was defamed by the University’s statement that he was acting ‘improperly’ by refusing disclose his vaccination status and Provost Gingerich’s statement that plaintiff was ‘a danger to the health and safety of the campus community.’ These are classic, non-actionable statements of opinion, and they should be dismissed. Because plaintiff’s claims against the University of Scranton and Provost Gingerich fail to meet the applicable pleading requirements (and cannot be amended to do so), the Court should dismiss the complaint with prejudice,” the motion continued.
UPDATE
On March 30, the University of Scranton’s Faculty Affairs Council replied to its own prior dismissal motion, also filed on Jan. 30, outlining why Bishop’s complaint should be thrown out.
“Dr. Bishop concedes that he must prove both that the University violated his contractual rights and that the Faculty Affairs Council breached its duty of fair representation. His effort fails. Simply stated, Dr. Bishop’s insubordination was a political statement, not a rejection of a dangerous vaccine,” according to the brief.
“Nor can Dr. Bishop legitimately state that he complied with the vaccination requirement. The University’s policy required informing the University of his compliance. But this would have been the ‘political speech’ that Dr. Bishop refused to make. Thus, the University reasonably interpreted Dr. Bishop’s silence as insubordination. In sum, Dr. Bishop’s opposition to the Union’s motion admits that he was insubordinate, which arbitrators and courts have held is just cause for discharge.”
The answering defendant further argued that Dr. Bishop’s claim that the Faculty Affairs Council breached its duty of fair representation is “no stronger.”
“Although Dr. Bishop explains what the University did wrong during the discipline hearing and describes the Union’s failure to support him during this process, he never addresses the Union’s argument that the Faculty Handbook, which he acknowledges is part of the collective bargaining agreement, expressly precludes the Union from participating in the disciplinary process,” the brief added.
“Dr. Bishop fails to address the legal predicates of his complaint against the Faculty Affairs Council: Can the Union’s compliance with the Faculty Handbook’s non-participation requirement constitute arbitrary, capricious, or discriminatory behavior? Did the Union breach its duty of fair representation where Dr. Bishop’s careful rendition of the facts proves that he was insubordinate? The answer to both questions is clearly ‘No.”
For counts of compulsion of political speech, violation of the rights to privacy and bodily autonomy under the Fourteenth Amendment to the U.S. Constitution, wrongful dismissal in violation of Pennsylvania Public Policy, breach of contract, violation of due process rights, violation of rights to be free from selective enforcement, defamation and breach of duty of fair representation, the plaintiff is seeking compensatory damages, professional reinstatement, costs, attorney’s fees and any additional and further relief the Court deems appropriate.
The plaintiff is represented by Franklin E. Kepner Jr. and Franklin E. Kepner III of Kepner Kepner & Corba, in Berwick.
The defendants are represented by Michael E. Baughman and Samuel D. Harrison of Troutman Pepper Hamilton Sanders in Philadelphia, Jason M. Weinstock of Ira H. Weinstock, P.C. in Harrisburg and Jonathan G. Axelrod of Beins Axelrod & Keating P.C., in Washington, D.C.
U.S. District Court for the Middle District of Pennsylvania case 3:22-cv-01831
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com