IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tara Kent, PH.D, :
Petitioner :
:
v. :
:
Cheyney University of Pennsylvania :
and Pennsylvania State System of :
Higher Education, : No. 349 M.D. 2019
Respondents : Argued: November 14, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 15, 2022
Respondents, Cheyney University of Pennsylvania (Cheyney) and the
Pennsylvania State System of Higher Education (PASSHE)1 (jointly, Respondents)
seek summary relief in the form of a motion for summary judgment requesting that
this Court dismiss the petition for review2 filed by Tara Kent, Ph.D. (Dr. Kent). For
the reasons set forth below, we deny application for summary relief as to Cheyney
and grant it as to PASSHE.
1
Cheyney is a PASSHE member university. Section 2002-A of the Public School Code
of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, added by the Act of
November 12, 1982, P.L. 660, 24 P.S. § 20-2002-A.
2
Kent titled her original pleading as Complaint – Civil Action. For clarity, it is designated
here as a petition for review.
I. Background
Dr. Kent is a former employee of Cheyney, where she served in various
positions beginning in 2002; she was Cheyney’s Provost from spring 2017 until the
time of her termination in September 2018. Pet. for Rev., ¶ 1 & Ex. A. Dr. Kent
also served for 10 years as Dean of the Keystone Honors Academy program at
Cheyney (Program). Id. ¶ 17.
Dr. Kent alleges that in the summer of 2018, she met with Cheyney’s
president, Aaron Walton (President Walton), to express concerns about what she
perceived as misallocations of Program funds and improper lowering of Program
admission standards. Pet. for Rev., ¶¶ 32-44. However, she avers that President
Walton “conveyed no interest in considering – much less addressing – Dr. Kent’s
serious concerns.” Id., ¶ 44. Instead, “[w]hen confronted by Dr. Kent with evidence
of the misappropriation of state funding, [President] Walton became irate, accused
Dr. Kent of being an ‘obstructionist,’ stated that he did ‘not have time for this,’ and
demanded that Dr. Kent keep her concerns to herself.” Id., ¶ 40. Further objections
by Dr. Kent to what she believed were improper practices were also rebuffed. See
id., ¶¶ 45-47.
On September 7 and 10, 2018, Dr. Kent disclosed her concerns to
PASSHE’s chief legal counsel, vice chancellor, and other senior representatives.
Pet. for Rev., ¶¶ 48-49. On September 19, 2018, at a meeting with President Walton
and administrative personnel from Cheyney and PASSHE regarding Cheyney’s
faculty union, Dr. Kent, who believed President Walton had failed to disclose a
$100,000 no-bid contract to the union, “reminded [President] Walton and the senior
PASSHE representatives present at the meeting that any lack of transparency with
2
respect to Cheyney contracts would be a violation of Cheyney and Pennsylvania
procurement requirements.” Id., ¶ 53.
The next day, in the presence of “a senior PASSHE representative” not
identified by name in the petition for review,3 and without issuing a prior warning
or unsatisfactory performance review, President Walton handed Dr. Kent a
termination letter. Pet. for Rev., ¶¶ 54 & 56. Dr. Kent “believe[s] and therefore
aver[s] that [President] Walton’s decision to terminate Dr. Kent was rendered only after
consultation with, and with the approval of, senior PASSHE representatives.” Id.,
¶ 55.
Dr. Kent filed a petition for review in this Court asserting a claim under
Section 3(a) of the Whistleblower Law,4 which provides:
Persons not to be discharged.--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). Dr. Kent maintains that Respondents violated the Whistleblower
Law by terminating her in retaliation for her good faith reports to President Walton
and PASSHE regarding alleged “significant waste and wrongdoing” at Cheyney.
Pet. for Rev., ¶¶ 61-63.
3
In her brief in opposition to Respondents’ application for summary relief, Dr. Kent avers
that the official was PASSHE’s Assistant Vice Chancellor for Employee Labor Relations. Pet’r’s
Br. at 28.
4
Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421-1428.
3
Respondents deny Dr. Kent’s claims. Concerning the claim against
Cheyney, Respondents contend that Dr. Kent’s employment was not terminated
because of her reports alleging fiscal malfeasance, but because President Walton
“lost faith” in her after Dr. Kent criticized his efforts to boost Cheyney’s dwindling
enrollment by shifting Program scholarship awards to the enrollment department and
hiring a new director of enrollment management; and after Dr. Kent “withheld or
delayed Provost-level approval of funding for marketing materials” that were
“critical to Cheyney’s enrollment efforts.” Application for Summary Relief, ¶¶ 20-
24.
Respondents claim Dr. Kent cannot establish a prima facie case of
retaliation as required by the Whistleblower Law because the nature of her
complaints did not constitute a report of waste or wrongdoing within the meaning of
the Whistleblower Law, she did not make her report to an employer or appropriate
authority within the meaning of the Whistleblower Law, and she failed to point to
evidence of a causal connection between her alleged report and President Walton’s
decision to terminate her. Respondents’ Br. at 19-25. Further, Respondents argue
that even if Kent could establish a prima facie case of retaliation, the record
establishes that Kent’s termination was the result of legitimate, nondiscriminatory
reasons related to President Walton’s loss of faith in Dr. Kent. Id. at 25-26.
Respondents also contend the record is devoid of evidence that President Walton’s
reason for terminating Dr. Kent was pretextual. Id. at 26-27.
Concerning Dr. Kent’s claim against PASSHE, Respondents assert that
“the Provost is appointed by and reports to the Cheyney President and the Provost
serves at the pleasure of the President.” Answer to Pet. for Rev., ¶ 19; see also id.,
¶¶ 24-25 (stating that Dr. Kent was appointed Provost by, and reported to, President
4
Walton); Application for Summary Relief, ¶ 25 (averring that “[p]ursuant to the
terms of her appointment letter, [Dr. Kent] served at the pleasure of Cheyney’s
President”). Respondents aver that President Walton “had the sole authority over
the Provost’s authority and made the decision to terminate [Dr. Kent],” although he
“did have contact with PASSHE representatives regarding the logistics of [Dr.
Kent’s] termination, prior to its occurrence.” Answer to Pet. for Rev., ¶ 55. Thus,
Respondents assert that PASSHE had no part in terminating Dr. Kent’s employment,
as “the record establishes that the decision to terminate [Dr. Kent] was made [by]
Cheyney’s President, and not any officials of [PASSHE].” Application for
Summary Relief, ¶ 29; see also Respondents’ Br. at 25. PASSHE contends it cannot,
as a matter of law, be liable to Kent for a violation of the Whistleblower Law.
Following discovery, Respondents filed an application for summary
relief (Application). After briefing and oral argument, the Application is now ripe
for disposition.
II. Discussion
A. Applicable Legal Principles
Pennsylvania Rule of Appellate Procedure 1532(b) provides that, “[a]t
any time after the filing of a petition for review in an appellate or original jurisdiction
matter the court may on application enter judgment if the right of the applicant
thereto is clear.” Pa.R.A.P. 1532(b); Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d
192, 195 (Pa. Cmwlth. 2015). In deciding a request for summary relief, “this [C]ourt
must determine whether it is clear from the undisputed facts that either party has a
clear right to the relief requested.” Bell Atl.-Pa., Inc. v. Tpk. Comm’n, 703 A.2d 589,
590 (Pa. Cmwlth. 1997), aff’d, 713 A.2d 96 (Pa. 1998). “The record, for purposes
5
of the motion for summary relief, is the same as a record for purposes of a motion
for summary judgment.” Summit Sch., 108 A.3d at 195-96. Pursuant to
Pennsylvania Rule of Civil Procedure 1035.1, the record in a motion for summary
judgment includes any: “(1) pleadings, (2) depositions, answers to interrogatories,
admissions and affidavits, and (3) reports signed by an expert witness that would, if
filed, comply with [Pa.R.Civ.P. 4003.5(a)(1)], whether or not the reports have been
produced in response to interrogatories.” Pa.R.Civ.P. 1035.1.
However, “[i]t is well established that testimonial affidavits or
deposition testimony alone, even if not contradicted, is insufficient to establish the
absence of a genuine issue of material fact because the credibility of the testimony
is a matter for the factfinder.” Dep’t of Transp. v. UTP Corp., 847 A.2d 801, 806
(Pa. Cmwlth. 2004); see also Borough of Nanty-Glo v. Am. Sur. Co. of N.Y., 163 A.
523 (Pa. 1932); Pa.R.Civ.P. 1035.5, Note. “In ruling on applications for summary
relief, [this Court] must view the evidence of record in the light most favorable to
the non-moving party and enter judgment only if there is no genuine issue as to any
material facts and the right to judgment is clear as a matter of law.” Eleven Eleven
Pa., LLC v. State Bd. of Cosmetology, 169 A.3d 141, 145 (Pa. Cmwlth. 2017)
(internal brackets omitted).
To prevail on a Whistleblower Law claim, a petitioner must prove that
prior to the alleged retaliation, she reported or was about to report, in good faith, an
instance of wrongdoing. Section 4(a) of the Whistleblower Law, 43 P.S. § 1424(a).
However, the petitioner must do more than merely demonstrate that she was
terminated sometime after making a report. See Golaschevsky v. Dep’t of Env’t
Prot., 720 A.2d 757, 759 (Pa. 1998). Instead, “[t]he causal connection that the
Whistleblower Law requires must be demonstrated by concrete facts or surrounding
6
circumstances that the report of wrongdoing or waste led to the [petitioner’s]
dismissal, such as that there was specific direction or information received not to file
the report or that there would be adverse consequences because the report was filed.”
Evans v. Thomas Jefferson Univ., 81 A.3d 1062, 1070 (Pa. Cmwlth. 2013) (quoting
Golaschevsky, 720 A.2d at 759) (internal quotations omitted). “The Whistleblower
Law is not designed to provide insurance against discharge or discipline for an
employee who informs on every peccadillo of his fellow employees.” Id. at 1070
(internal quotations omitted). If a petitioner proves a causal connection between the
report of wrongdoing and her eventual termination, then the burden shifts to the
respondents to show that their actions were lawful. O’Rourke v. Dep’t of Corr., 778
A.2d 1194, 1200 (Pa. 2001); see also 43 P.S. § 1424(c). “[A]n employer should not
incur liability for independently justified adverse personnel action simply because
animus may exist based upon prior reports of wrongdoing.” O’Rourke, 778 A.2d at
1204.
B. Cheyney’s Application for Summary Relief
Respondents contend that Dr. Kent has not presented a prima facie
violation of the Whistleblower Law. Respondents observe that Section 2 of the
Whistleblower Law provides that to be protected by that law, a report of
“wrongdoing” must relate to a “violation which is not of a merely technical or
minimal nature of a Federal or State statute or regulation, of a political subdivision
ordinance or regulation or of a code of conduct or ethics designed to protect the
interest of the public or the employer.” Respondents’ Br. at 20 (quoting 43 P.S.
§ 1422) (additional quotation marks omitted). Here, according to Respondents, Dr.
Kent merely reported “regarding a handful of students who she believed fell slightly
7
short of the minimum eligibility standards set by Cheyney’s internal policy and were
nonetheless offered [Program] scholarships. This is not significant enough to
amount to wrongdoing or waste under the Whistleblower Law.” Respondents’ Br.
at 19-20.
Further, Respondents contend that, even if Dr. Kent could establish a
prima facie case, President Walton had a legitimate, nondiscriminatory reason to
terminate Dr. Kent because she “nearly caused a serious disruption in Cheyney’s
critical enrollment efforts due to her failure to approve funding that the President
had asked her to approve.” Respondents’ Br. at 25. Respondents similarly argue
that no evidence exists to suggest Dr. Kent’s termination was pretextual. In support
of this argument, they offer a bare assertion that “[t]he evidence instead establishes
Dr. Kent’s ‘whistleblowing’ campaign was nothing more than a focused effort to
undo any changes to the [Program scholarship] process, returning her to total control
over that [P]rogram, with little to no consideration of the dire situation the University
as a whole faced.” Id. at 26.
Dr. Kent counters that issues of material fact remain for determination.
Regarding the seriousness of the alleged wrongdoing she reported, Dr. Kent asserts
that she gave President Walton information about over 30 students who had been
improperly awarded restricted scholarships by the new director of enrollment
management who was hired by President Walton in 2018. Pet’r’s Br. at 22. Dr.
Kent alleges that at least 18 of those students improperly received scholarships
“without satisfying the more rigorous eligibility requirements established for [the
P]rogram.” Id. (citing Pet’r’s Ex. J, Interoffice Memorandum re: Scholarship
Policies). Moreover, Dr. Kent avers that the improperly awarded scholarships
resulted in wrongful use of over $375,000 annually and would have cost over $1.5
8
million over four years. Id. at 24. In addition to the monetary value of the Program
scholarships at issue, Dr. Kent asserts that “[b]oth the public and Cheyney have an
interest in ensuring that public scholarship monies are awarded based on known and
established criteria rather than the whim of a newly appointed administrator.” Id. at
26-27.
Regarding the alleged causal connection between Dr. Kent’s report of
alleged wrongdoing and President Walton’s termination of her employment, Dr.
Kent argues that she shared her concerns about wrongdoing with senior PASSHE
officials, against President Walton’s express directive not to tell anyone else. Pet’r’s
Br. at 22. Prior to that time, “Dr. Kent had consistently received excellent
performance reviews, had been promoted up through the ranks, and had been
promoted by President Walton himself to be Provost, Cheyney’s chief academic
officer.” Id. However, once Dr. Kent reported the alleged misuse of restricted
Program scholarship money for improper scholarship awards, “President Walton
became irate [and] accused Dr. Kent of being an obstructionist . . . .” Id. Dr. Kent
suggests that the facts and timing surrounding her termination, just one week after
she provided President Walton with a memorandum from the Cheyney Honors
Council regarding the misuse of restricted scholarship funds and requested a meeting
to discuss her proposed recommendations, establish a causal connection between her
allegations of wrongdoing and the termination of her employment. See id. at 28.
Finally, Dr. Kent contends she has raised a question of fact regarding
whether her employment was terminated pretextually. Notably, Dr. Kent avers that
at the time of her termination, in response to her repeated questions about why she
was being fired, President Walton would say only, “You’re an at-will employee and
that’s within my authority.” Pet’r’s Br. at 29 (first citing Pet’r’s Ex. A, Kent Dep.
9
at 237; and then citing Pet’r’s Ex. C, Kent aff., ¶ 20). According to Dr. Kent,
Respondents’ after-the-fact allegations that she failed to approve funding for
recruitment costs as ordered by President Walton do not provide a legitimate,
nondiscriminatory reason for her termination. Pet’r’s Br. at 30. Dr. Kent avers that
both she and another Cheyney administrator legitimately questioned the propriety of
using Program funds for general recruitment costs such as marketing materials, as
well as the exorbitant amounts being spent for such purposes. Id. (citing Pet’r’s Ex.
F, Blackman dep. at 20-30). Nevertheless, Dr. Kent agreed to follow the President’s
directive, but then learned that Cheyney’s Vice President of Finance had already
approved the authorization of funds. Pet’r’s Br. at 31.
In Vance v. Cheyney University of Pennsylvania (Pa. Cmwlth., No. 210
M.D. 2017, filed July 8, 2021),5 this Court considered a similar case involving the
termination of another Cheyney employee. We denied an application for summary
relief regarding a similar whistleblower claim by another terminated Cheyney
employee who alleged that she suffered retaliation after reporting fiscal malfeasance
involving scholarship funds. See id., slip op. at 8-9. We concluded that questions
of fact remained, including “the conduct and timing surrounding [the petitioner’s]
reporting of missing restricted scholarship funds, [the petitioner’s] treatment by
[Cheyney] thereafter, and the circumstances, factors, and decision-making process
surrounding the elimination of [the petitioner’s] position with [Cheyney], as well as
the parties’ competing interpretations thereof.” Id.
Like Vance, this case presents a situation where, despite Respondents’
insistence to the contrary, necessary findings of fact remain to be made. Those
5
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a),
unreported panel decisions of this Court, issued after January 15, 2008, may be cited for their
persuasive value. 210 Pa. Code § 69.414(a).
10
findings include, inter alia, whether Dr. Kent’s report alleging over 30 improperly
awarded scholarships was true, and if so, whether it asserted wrongdoing or waste
sufficient to constitute a report subject to the protection of the Whistleblower Law.
Factual findings are also required concerning whether President Walton directed Dr.
Kent to tell no one else of her concerns about improper Program scholarship awards
and, if he did issue such a directive, whether a threat of retaliation could properly be
inferred from his having done so. In addition, questions of fact remain concerning
whether Dr. Kent’s alleged failure to authorize an expenditure ordered by President
Walton constituted a legitimate, nondiscriminatory reason for her termination. As
such, factual disputes requiring credibility determinations and a need for formal
findings of fact remain that prevent the Court from granting the application for
summary relief as to Cheyney at this time. Accordingly, we deny the application for
summary relief insofar as it relates to Cheyney. See Sabater v. Pa. Ins. Dep’t (Pa.
Cmwlth., No. 637 M.D. 2014, filed Jan. 3, 2019), slip op. at 7 (denying an
application for summary relief regarding whistleblower claim where necessary
findings of fact remained to be made by a fact-finder).
C. PASSHE’s Application for Summary Relief
As set forth above, Section 3(a) of the Whistleblower Law provides that
an “employer” may not “discharge, threaten or otherwise discriminate or retaliate
against an employee” based on the employee’s good faith report of wrongdoing or
waste. 43 P.S. § 1423(a) (emphasis added). PASSHE separately contends that it
cannot be liable to Dr. Kent as a matter of law, because it was not Dr. Kent’s
employer and did not have authority to terminate her or otherwise take any action
against her in retaliation for her reports of alleged malfeasance by Cheyney
11
personnel regarding Program scholarship funds. See Application for Summary
Relief, ¶ 29; Respondents’ Br. at 25. We agree that neither the School Code nor the
record supports any claim against PASSHE.
Section 2006-A6 of the School Code, which sets forth the powers and
duties of PASSHE’s Board of Governors, authorizes PASSHE to appoint presidents
of member universities, but confers no authority to hire or fire other university
employees. See generally 24 P.S. § 20-2006-A. Thus, PASSHE was not statutorily
authorized to terminate Dr. Kent’s employment. Rather, Section 2010-A(1)7 of the
School Code confers that power solely upon the presidents of PASSHE member
universities, by authorizing university presidents “to appoint such employes,
professional and noninstructional, graduate assistants, etc. as necessary . . . .” 24
P.S. § 20-2010-A(1). Indeed, Dr. Kent expressly acknowledged that she served at
the pleasure of President Walton and that he had the authority to terminate her
employment unilaterally. Kent Dep. at 20-21.
Dr. Kent asserts that she received her paychecks and benefits through
PASSHE. Pet’r’s Br. at 3 n.2 (citing Pet’r’s Ex. C, Kent aff., ¶ 1).8 However,
PASSHE observes there is no dispute that Dr. Kent was an employee of Cheyney.
Respondents’ Reply Br. at 4 (citing Resp’ts’ Ex. A, Kent Dep. at 13-14). PASSHE
also points to Dr. Kent’s 2017 appointment as Cheney’s Provost, which was made
by Cheyney’s President on Cheyney letterhead. Respondents’ Reply Br. at 4 (first
citing Resp’ts’ Ex. A, Kent Dep. at 14-15 & 17; and then citing Respondents’ Reply
6
Added by the Act of November 12, 1982, P.L. 660.
7
See Note 6, infra.
8
At pages 28-29 of her brief, Dr. Kent also cites Appendix B to her opposition to the
application for summary relief, President Walton’s deposition at 8-9. However, our review of the
cited pages did not reveal any reference to Dr. Kent’s paychecks or benefits.
12
Br., Ex. T). The termination letter President Walton handed Dr. Kent on September
20, 2018 was likewise on Cheyney letterhead and was signed by President Walton;
it stated “you serve at the pleasure of the President of Cheyney University of
Pennsylvania” and “[t]his letter serves as official notice that your employment with
the University will be terminated effective September 28, 2018.” Respondents’
Reply Br. at 4-5 (emphasis added) (first citing Resp’ts’ Ex. A, Kent Dep. at 236-37;
and then quoting additional Respondents’ Reply Br., Ex. U) (additional quotation
marks omitted)).
Moreover, although Cheyney is a member university of PASSHE, Dr.
Kent failed to point to any evidence that PASSHE exerted control over the
termination decision or was in a relationship with Cheyney that could give rise to
vicarious liability on the part of PASSHE for conduct of Cheyney or its president.
The most Dr. Kent could assert was that a PASSHE representative was present in
the room when President Walton handed Dr. Kent a termination letter. Pet. for Rev.,
¶¶ 54 & 56. That is insufficient to demonstrate any control by PASSHE over
President Walton’s decision to terminate Dr. Kent.
For these reasons, we agree with PASSHE that it is entitled to summary
relief. We therefore grant the application for summary relief as it relates to
PASSHE, and we dismiss PASSHE as a party to this action.
13
III. Conclusion
Based on the foregoing discussion, we deny Respondents’ application
for summary relief as to Cheyney, grant the application for summary relief as to
PASSHE, and dismiss PASSHE from this action.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tara Kent, PH.D, :
Petitioner :
:
v. :
:
:
Cheyney University of Pennsylvania :
and Pennsylvania State System of :
Higher Education, : No. 349 M.D. 2019
Respondents :
ORDER
AND NOW, this 15th day of December, 2022, Respondents’
application for summary relief is DENIED insofar as it relates to Respondent
Cheyney University of Pennsylvania. The application for summary relief is
GRANTED insofar as it relates to Respondent Pennsylvania State System of Higher
Education (PASSHE), and PASSHE is DISMISSED as a party to this action.
__________________________________
CHRISTINE FIZZANO CANNON, Judge