Tenured Prof Sues Marywood U. for Ignoring Its Own Policies to Fire Him

Frederick Fagal, formerly a tenured professor at Marywood University in Pennsylvania, filed a lawsuit against the university in federal court last week alleging that it suspended him and then terminated his employment without following its own written procedures.

Tensions between Fagal and the university arose in late November 2011, when Fagal had FIRE’s Will Creeley speak to his “Introduction to Social Science” course. With the university’s permission, Fagal had hung posters advertising Will’s presentation around campus. But according to Fagal’s complaint (obtained via PACER), university personnel removed most of the posters without notice to Fagal, and without citing any policy explaining these actions.

In January 2012, Fagal emailed Marywood faculty, criticizing the university’s removal of his posters and its failure to uphold freedom of speech generally, and linking to a pair of video parodies on YouTube expressing the same sentiments. Ten days later, after just a brief meeting in which Fagal admitted to posting the videos himself, Marywood President Sister Anne Munley suspended Fagal.

Fagal’s suit argues that Marywood’s written policies governing discipline of tenured faculty clearly state that the university must first attempt to resolve issues through “flexible” and “progressive” steps, “such as personal conferences, oral and written warnings, and opportunities for monitored assistance.” The Vice President for Academic Affairs—not the President—may suspend faculty members if there is a threat of “immediate harm to the faculty member or others,” a plainly irrelevant concern in this case.

Despite Marywood’s policies, Munley informed Fagal the next day that she was recommending his termination to a faculty committee for review and additionally charging him with violating Marywood’s Civil Rights Policy. Again, the suit alleges, Munley’s actions are inconsistent with university procedures; its Civil Rights Policy requires that an aggrieved party file a complaint and no one had done so. Further, university policy states that termination may be warranted if “remedial action(s) taken during the suspension does not sufficiently resolve … issues.” But no efforts were made at all to address Marywood administrators’ concerns before Munley took steps to terminate Fagal.

Although Munley offered to have a faculty committee review the decision to terminate Fagal, she did not, as policy required, allow the review of her decision to suspend him initially. Marywood defended this by stating that it had no obligations to Fagal under its written policies because Fagal had breached his contract with the university. In other words, as the complaint says, “any time that the University deemed—in its sole discretion—that a member of its community breached a contract with the University, then the University could disregard any of its own disciplinary policies. Such a position is absurd.”

Fagal filed a formal grievance against Munley for acting contrary to university policies. Marywood’s Faculty Grievance Committee concluded, apparently without further explanation, that all of his complaints were without merit. Munley subsequently declared her termination of Fagal to be final—a move that Fagal claims was retaliation for the grievance he filed against her. Confusingly, in the same letter in which Munley terminated Fagal, she also offered to convene a committee to review the suspension and termination. The committee did not agree with all of the charges against Fagal, but nevertheless upheld his termination. It did not, however, review his suspension separately, contrary to Marywood’s discipline policy. Finally, in June, Munley informed Fagal that his termination was indeed final.

Torch readers may remember my colleague Sarah McLaughlin’s recent analysis of how Marywood is failing to abide by its promises of free expression on campus, censoring student speech deemed by some to be offensive. The same problem exists here. To terminate Fagal because of a single email consisting of only speech that would be constitutionally protected in society at large is wholly inconsistent with Marywood’s written proclamation that “[f]ree inquiry and free expression are indispensable to the attainment” of the goals of the university: “the transmission of knowledge, the pursuit of truth, the development of students, and the general well-being of society.”

Further, the allegations of Fagal’s lawsuit, if true, demonstrate the administration’s failure to follow many more of its own written policies. As a tenured professor, Fagal was generally entitled to continuing employment—if he did in fact engage in misconduct, he was entitled to a number of procedural safeguards enumerated in Marywood’s policies. Yet according to his complaint, he was dismissed quickly and without justification.

This isn’t the first time Fagal has clashed with the university over matters of free speech. Back in 2006, FIRE wrote twice to Marywood in response to its censorship of items Fagal posted on his office door as well as the administration’s elimination of certain stories from the student newspaper.

FIRE will keep an eye out for updates on Fagal’s lawsuit.