Thelen v. The Pa. State Sys. of Higher Educ.

KEVIN THELEN, Plaintiff, v. THE PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION, INDIANA UNIVERSITY OF PENNSYLVANIA, MICHAEL DRISCOLL, SUSANNA SINK and DEBRA FITZSIMONS, Defendants.

Civil Action No. 2:20-CV-1717

United States District Court, W.D. Pennsylvania

August 3, 2021

MEMORANDUM OPINION

PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE

I. Introduction

On November 9, 2020, Plaintiff Kevin Thelen (“Thelen”) commenced this employment discrimination action against The Pennsylvania State System of Higher Education (“PASSHE”); Indiana University of Pennsylvania (“IUP”); IUP President Michael Driscoll (“President Driscoll”); interim IUP Vice President of Administration and Finance Susanna Sink (“V.P. Sink”); and current IUP Vice President of Administration and Finance Debra Fitzsimons (“V.P Fitzsimons”) (collectively “Defendants”). (ECF Nos. 1; 10).

In his Amended Complaint, Thelen asserts the following claims: (1) First Amendment retaliation under 42 U.S.C. § 1983, against President Driscoll, V.P. Sink, and V.P. Fitzsimons; (2) discrimination under the Rehabilitation Act (“RA”), 29 U.S.C. § 794 et seq., against PASSHE and IUP; (3) discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C.§ 12101 et seq., against President Driscoll, V.P. Sink, and V.P. Fitzsimons; (4) retaliation for filing a workers' compensation claim in violation of Pennsylvania common law against President Driscoll, V.P. Sink, and V.P. Fitzsimons; (5) discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., against President Driscoll, V.P. Sink, and V.P. Fitzsimons; (6) discrimination on the basis of gender under Title VII, 42 U.S.C. § 2000e et seq., against PASSHE and IUP; (7) hostile work environment under Title VII against PASSHE and IUP; (8) retaliation under Title VII against PASSHE and IUP; (9) discrimination on the basis of gender under Title IX, 20 U.S.C. § 1681 et seq., against PASSHE and IUP; (10) hostile work environment under Title IX against PASSHE and IUP; and (11) retaliation under Title IX against PASSHE and IUP. (ECF No. 10).

For the reasons that follow, Defendants' motion will be granted in part and denied in part.

II. Facts Alleged in Amended Complaint

Prior to Thelen accepting an appointment to become the Director of Public Safety and University Police at IUP, Vice President Cornelius Wooten assured him that he would have the school's full support to increase police accountability. (ECF No. 10 ¶¶ 18, 26, 113). On August 8, 2015, Thelen began his ten-month renewable appointment as the Director of Public Safety and University Police. (Id. ¶¶ 18, 21). His appointment letter states:

Under the terms and conditions of Board of Governors Policy 1984-14-A: Terms and Conditions of Employment of Senior Policy Executives, you serve at the pleasure of the President and future extensions of this appointment will be determined by this office pursuant to the terms and conditions of Policy 1984-14-A.

(Id. ¶ 20). Thelen received subsequent renewal letters from the V.P. of Administration and Finance. (Id. ¶ 21). Although Thelen's appointment letter was issued by IUP, his W-2 identifies PASSHE as his employer. (Id. ¶ 22).

During his employment, Thelen uncovered a number of personnel and disciplinary problems at the university. (Id. ¶ 27). In 2015, after an officer seized evidence from a student's room (beer, drugs, and drug paraphernalia), the officer drank the beer in lieu of documenting its seizure in a police report. (Id. ¶¶ 27-28). Following an internal review, Thelen recommended that the officer be terminated. (Id. ¶ 28). An unidentified decisionmaker at IUP disagreed and reassigned the officer to the Facilities Department to work as a laborer. (Id. ¶ 29).

Similarly, when a female officer was sexually harassed during her new hire training, Thelen reported it to Associate Vice President for Human Resources Craig Bickley (“Bickley”). (Id. ¶¶ 30, 49). Bickley responded by asking Pablo Mendoza to investigate. (Id.) After Thelen complained to Bickley that this investigation had been poorly done, Bickley reassigned the Title IX complaint to an outside investigator. (Id.) Thelen again told Bickley that the investigation was deficient. (Id.) Ultimately, the alleged harasser negotiated an agreement whereby he resigned his employment in exchange for his daughter to continue her tuition-free studies at IUP. (Id. ¶ 30). Thelen's complaints that the investigation was faulty, which were made on behalf of the female officer, were outside the scope of his duties. (Id. ¶ 29).

Thelen also discovered that an officer was altering the trigger pulls on several Department-issued handguns. (Id. ¶ 31). As part of the ensuing investigation, Thelen identified at least one other officer who was doing the same thing. (Id. ¶ 32). Officer Chris Rearick was disciplined as a result. (Id.) Thelen represents that this investigation was also outside the scope of his duties. (Id. ¶ 34).

Subsequently, Thelen decided that an unnamed outside security team would no longer be permitted to work campus events because it had failed to comply with its contract with IUP during a prom held on campus. (Id. ¶¶ 34-40). Anthony Clement (“Clement”), V.P. Sink's brother, was part of this security team. (Id. ¶ 36). Thelen believes that Clement notified V.P. Sink of his decision. (Id. ¶ 40).

Thereafter, in September 2018, Rebecca Clement, V.P. Sink's niece, applied for a promotion in Thelen's department as a Public Safety Administrative Assistant. (Id. ¶ 41). Caroline Speer (“Speer”), who was already working in Thelen's department, was promoted to this position, however. (Id. ¶¶ 42-43). Because Thelen hired someone other than V.P. Sink's niece, V.P. Sink and several others including Megan Heilbrun (“Heilburn”), began spreading rumors that Speer was having an affair with Thelen. (Id. ¶¶ 44-45). Thelen learned of these rumors from Speer. (Id. ¶ 46). V.P. Sink's niece was later promoted to a position in a different department. (Id. ¶ 47).

Seven months later, the PASSHE Officers Association Union (“Union”), of which Officer Rearick was the President, filed two grievances against Thelen. (Id. ¶ 48). The first was in response to Thelen's directive to a supervisor to issue an Incident of Note for Officers Rearick and Porada, who as firing range instructors, allowed a female officer three attempts to qualify when Department policy only permitted two. (Id. ¶ 51). The second grievance was in response to Thelen's orders restricting officers' use of Department equipment while employed in an outside capacity and prohibiting officers from working outside employment within eight hours of an assigned shift or other duty assignment. (Id. ¶ 53).

Bickley denied the first grievance. (Id. ¶ 56). He partially sustained the second, ruling that whether an officer should be permitted to work outside employment within eight hours of a shift at IUP was a condition of employment and thus, subject to negotiation. (Id.) Although Thelen later asked Bickley to identify the provision in the collective bargaining agreement that addressed secondary employment conditions, he never received a response. (Id. ¶ 57).

On October 17, 2019, a no confidence letter signed by the Union president was issued against Thelen. (Id. ¶¶ 59-63). Eleven days later, V.P. Sink handed Thelen a copy of the letter but told Thelen “don't worry about it.” (Id. ¶ 63). The letter reads in part:

We believe that the lack of leadership, clear progressive direction, lack of understanding of the Pennsylvania rules of criminal procedures, lack of understanding of local judicial practices and rules pose a significant risk to the safety and security off[sic] all members of the [IUP] community and property. It is also the shared belief of the POA members, that the high turnover rate of employees at the Indiana University . . . Police Department is a direct result of a hostile work environment created by the current leadership of the department. During the tenure of the current leadership starting in 2015[, IUP] Police has lost twenty-two Police Officers and/or other departmental employees. We believe that the safety of all members of [the IUP] community are at risk. We propose to take this extraordinary step and have voted “No Confidence” in the leadership of this Police Department.

(Id. ¶ 59). Thelen denies these allegations. (Id. ¶ 60).

Almost a month later, V.P. Sink's Executive Assistant emailed Thelen and advised him that V.P. Sink no longer needed him to serve as the emcee at her retirement party. (Id. ¶ 69). Director of the IUP Police Academy Dennis Marsili told Thelen several days later that “I hear we're getting another search committee ready for your position.” (Id. ¶ 70). Director Marsili apologized to Thelen the next day, explaining that he had confused Thelen's position with another. (Id. ¶ 74).

In early December 2019, V.P. Sink informed Thelen that the Union had expressed additional concerns. (Id. ¶ 75). Its members were upset that (1) Thelen had eliminated the “no questions asked” leave policy without discussing it with his officers, (2) one of the Department's vehicles did not have a license plate, and (3) he brought his dog to work. (Id.). The Union also sought clarification concerning Thelen's use of Department investigators. (Id.)

In mid-December, V.P. Sink retired and was replaced by V.P. Fitzsimons. (Id. ¶ 77).

On December 27, 2019, Officer Noah Miller called off using a “no questions asked” personal day. (Id. ¶ 78). Because it would leave the Department short-staffed and the policy no longer existed, Thelen declined Officer Miller's request. (Id.) Officer Miller responded by notifying Thelen that he was sick, and Thelen advised him that he would need to provide a confirming note...