professor commits a murder and i'd like to try and clarify exactly what the belief is that we're looking for here but i proposed to start with the language of the policy and we leave there's one provision which offers the court the clearest path to defining the university's responsibilities under the contract and that's in the procedure section under the heading meeting with administrator at the end of that paragraph it says that if the if the professor's explanation doesn't satisfy the administrator that do the administrator quote will specified corrective action to be taken the procedures applying the first place so didn't wasn't there a specification that is notification of suspension which according to the policy if you continue further says a fact ma'am may be suspended at any time during the proceedings so that happened were our position is that a contract by his terms has a few things it requires in every case it requires this commencement it requires a meeting with the administrator and requires this bus make a special occasion of corrective action in every case now there are other things that cannot big can also happen but but but yeah our position is is that in your heart out and if we could go earlier in the document where it reads that the policy recognizes personal and professional problems i'm r with the text of the contract and let me try to explain what i think the language you just referred to is important for the out but i think to the most important contractual provision here is the procedure section itself where there aren't these two different tracks that are laid out along the informal process for professional problems and in a second set of procedures and instead it's one process and it's and it's a single process that includes exactly the progressive and we have a provision that you can essentially leap frog to suspension whenever the phrase present a practical affairs thinks it's warranted wh why doesn't that and then the next step after that essentially is is dismissal why doesn't that just read for stat the reveal steps in between are in fact discretionary which w process explicitly laid out these two separate punishment tracks and here with this that is because we believe that the role of this process is corrective rather than punitive work we're including all of it in the process and that's why we're at united says both professional problems and and the serious violations and the contrary argument i think really struggles against the  is only procedures for the smaller stuff and there are no procedures that are laid out for the serious violations because that's an argument that they have to make because once  they and that is their position then it has to be their position because once they accepted the procedures are involved then they have to recognize the sequencing a fact of the procedures that are early in the polic believe in the policy there's percy jurors for when there's a decision to suspend or dismiss that is the convening of the at how can you answer yes so it appears that the policy sets forth steps that are taken that are tailored to the circumstances presented and that's true i don't dispute that there are other steps that are involved in this but the the problem that that the university has with  that there's kind of gray area about what steps are required in what situations but there is one thing that is black and white here and that is it has to start with this commencement of the house to be a meeting with the administrator and if the explanation given at that meeting doesn't behavior well no i don't agree about it it is certainly on in terms of suspending the the procedures clear you can suspended any time so there's no question about that the way i would understand the procedures to function contract he would be right there would be a breach of the contract but in that circumstance the university would have compelling defenses that they'd be a be able to offer under pennsylvania contract law in particular they'd be able to argue one possibility that they would argue well there was no action that we could specify that would correct the murder that took place well enough by implication what happened here the university of judged the posting of the video and its contents measured it against the sort of the guy post of the university and made a decision there was nothing short of suspension that could deal with the impact on the street living and others yes absolutely and so and and that's the crux of their absurdity argument is sort of functioning similar to to the possibility argument that i just laid out but there's a there's a key difference with the way that the university is trying to use observers the the frost event argument is not it would be absurd that it would be absurd to apply the policy i've written as to these two parties what they're saying is that there are some are there are hypothetical application of the contract the m there's some other situation that we can that we can imagine in which it would lead to absurd results and because it would lead to results in that in that imaginary circumstance therefore we don't have a duty to perform the contract here food because then the nature and it is from their perspective the way that they've been presented at the egregiousness a violation of the core values that is a kin to that and the district court found that that the harm that's covered you for purposes of suspension doesn't need to be physical harm harm to reputation or to you morality university violation of poor values could be sufficient so why is there really such a gap between that hypothetical example and what they allege is an injury here well i think there is because if you get away from the idea of the professor commits murder then the question you have is when you've got a professor who's done something like professor fadal did here which obviously i'm very undisputedly the university recognizes a serious issue but the question is is it absurd to think that in that kind of a will and there are we have the language under dismissal that says if remedial actions taken during suspension and this is not sufficiently resolve the issues that lead to think in the university me move toward the dismissal of the faculty member the focus there  is i mean is conditioned on the resolution and if the university is made it's determination its discretion this is not susceptible to resolution th corrective action to be taken and if their position is that there was no you know corrective action that was available then they can offer that as a defense and and and that is decided but it gets  there's there's no deference this to the question of their of their having followed the procedures that's what the pennsylvania supreme court in murphy it's clear about that this is looked at the same way as able to argue hey this wasn't really all that big a deal they shouldn't be allowed as just my memory they should be obvious while all that were able to argue is that they didn't follow the procedures and so they had the procedure that said bad to specify corrective action they didn't do it and the only the only legal if i have to to get around a breach of contract on that is to say well it would be absurd for us to have to do that and i and so and part of my argument here is it's clearly not absurd in a circumstance like this to i mean it's a legal determination whether it's absurd or not to apply that's not the not the university's judgment it's a legal question would be absurd and so part of my argument is it wouldn't  just i disagree with you i think that the that the language of the contract requires the university goods to specify remedial actions now if it's impossible for them to do that if that's their position then they get then they can fight about a position in court but they were choir and their circumstances were it would be impossible but it isn't impossible here and i think a part of the context that i think is helpful for understanding this is looking at how pennsylvania may have police the court dining room for murder would university there's one important finding in this case that's not before this court and that is the finding that dr fay all didn't incur didn't suffer any damages because he was case a reversal or and could set a precedent better university would under these circumstances would have to give a second or third chance for serious harassment by a faculty member how do you respond  doing anything else why is that incorrect but so looks looks take their view of that paragraph we comply even if we look and even if we do this and i'll argue later how that why has an absurd result and why that would actually be illegal for us additional light is not shed on the allegation or an explanation is not satisfactory that's where we are here the administrator will specify corrective action be taken the record is clear there we specify that he would be suspended as a result of his conduct and he was suspended and we specified that could then i corrected of action corrective means correcting something that the faculty member did wrong previously or remediating it or preventing future i don't understand how the suspension is corrective the suspension might be warranted for media harm but it's how it's talked about in the suspension paragraph not as being corrective but and i concede that the way it's talked about in this paragraph may not be corrected b where's the immediate harm that fable threatened the immediate harm was that by posting this this video that now it's created a hostile environment hostile work environment  severe and per visit now there's a case or two out there that find maybe one extruding situation could constitute but overwhelmingly it requires a pattern that you haven't pled a pattern absolutely your honor and if we do not see a pattern then why can we just defer to levine's expressed desire to have him fired right away as opposed to something that demonstrates that that was in good faith a judgment of immediate  honor in the record there was a pattern that was the stablish there was a a an offensive cartoon about muslim individuals that he was counting the media harm yes what in the record depicted a jewish faculty member as a nazi officer and and and directed stereotypes and made fun of his wife and his children and that we are now expected to it to  a pervasiveness or pattern because of some other episodes but that but but the triggering event as we understand it is this posting of his video and it was severe is that correct it was shocking the entire university was shocked by this the reputational harm cannot be reversed at this stage it was already out there of the impact to dr levine's family i think you touched by that you know he he eventually ended up losing his wife over this there was an this was an issue he said he would not have worked in this environment had we not suspended and terminated him he would have sued us for negligent retention had we given dr faygo a second or third chance maybe you could address your friend's comments over here your friend says you could you not disputed on pa error that it's two thousand live impulses that applies not the two thousand yes yes your honor in that two thousand just to answer the original question i think at the outset was that the the two thousand ten was there was no testimony relating to the progress of discipline policy in the record on that two thousand and ten policy to an exhibit three the only it was only offered for purposes of testimony on the disclosure of confidential information and criteria for removing a tenured faculty member is your friend correct in characterizing your argument as being if this is still innocence a two track policy and that the procedures laid out from the procedures head down  required in non serious cases but are not required in serious cases is that your position that is that is correct however i would bring the documents are the procedures that covered cyrix cases right in the ad hoc section your honor tools we've been describing this is tracks i like to to describe i think a better way to describe it is a tool box these are discretionary tools to deal with problems you can fix so maybe an oral warning written warning suspension and problems that so this is not all discretionary and you don't dispute there was no into the investigation conducted there was no meeting with the immediate supervisor appropriate dean there was not a series of warnings level disposed to be a gradual escalation supposed to start with immediate supervisor appropriate dean and then work its way up to the president the problem is that bean was mr levine ok and it would have been imprudent to not to have resolved ok so so be only getting back to your point about what is mandatory what is mandatory is no matter what if you move towards dismissal you get an ad hoc committee review and dr faygo got to  committees to review his terminations but there are some steps you have to get to before going to in the first what you don't just get there's no definition in the policy of what serious what's not you're saying it's entirely up to the university to decide that serious yes wrong ok so let's get t page two in the middle if remedial actions taken during this is spent does not suspicion sufficiently resolve the issues then the university may move towards dismissal of the faculty is missile provision is only for non serious offenses and serious offenses can go to dismissal without satisfying the requirements of the dismissal paragraph well what i'm saying your honor is under the dismissal paragraph there's a if there progression taken and that progression doesn't work because you decided to go to an act of progressive discipline and it doesn't work then you can move towards this method we're not there because we're medio action was never it was never on the table when he makes a video problem areas and we have a series of gradual steps now does your argument all hinge on trying to apply this phrase we're a political back to everything in that list no no your honor doesn't hinge in just back backing up to twenty ten policy when the when the policy when the contract with force it's clear we can't look at outside of of this contrary i think this country just so clear that we don't need to look at anything else you're on all you have to do is or you name it you would have to you would have to give eighth a second ending her chance before you can correct it what will take your friends absurdity argument on the other side and your reading the president can unilaterally decide that she's offended via a faculty member whose views she dislikes are detests and fire them and then that subset of decisions on reviewable and all the preceding steps are just in her discretion to skip over what meaningful review is there if the if there's a personality spat and i'm not saying that's the situation here i'm dimaggio a hypothetical scenario in which the president wants to get rid of a tenured faculty member who is a thorn in her side how does your reading put any teeth into this policy make it worth the paper it's printed on because before we dismiss a tenured faculty member we have to give him a peer review he got two committees to review it automatically gets to the ad hoc equity committee if you murder somebody if you write somebody if you make a video pick one note i'm asking how about the thorn in the faculty in the president's side hypo and i'm not saying that's this situation you're just hypothetically why isn't your reading absurd because the there is no the first page and a half has to not provide any protection to a faculty member if you're a thorn in the side you can declare immediate harm suspend the person and jump straight to that hot faculty committee and that's there's progressive discipline for issues that can be fixed and then there's you know that's like a screwdriver a verbal warning whatever and then there is a more serious calm doubt that would merit dismissal that's your saw  there's no definition in here of what's in which can there there well i think i think that the if you if you look at the language in the in the second sentence of the first paragraph it says that the universe regards disciplinary action as corrective not punitive the policy work of personal professional problems that may be rectified by informal education process and informal education process is not going to undo this viral video i just on the first page may have appeared to apply to some of the serious ones the bottom of the first day suspension says if it would be in direct violation of law you can suspend without pay otherwise it's with when we're talking about mileage and law and sound serious the top of the second page we have people who are addicted to alcohol addicted to drugs mentally ill and yet you seem to say that it's all in a non serious camp that sounds serious but it's still dealt with at the bottom of the first page and top of the second page when you're dick with alcohol or drugs counselling can fix it ok but it doesn't mean it's not serious it just didn't it's fixable it means that it's fixable ok and and i would note that under special systems and the only time that remedial action endeavor we're we're undertaking here i've i gather we're all in agreement that where we are looking to interpret a contract we're reviewing the district court's interpretation of that contract but the premise for many of your answer seems to be that we're limited to that the four corners of the contract i and and that we have to look at the contract it's being i mean us this was  about the the meaning of these contractual terms correct your honor there was testimony as to the meaning of the contractual terms and so there you go to the whole to the extent that judge proper what was the intent or be interpretation by the parties so when we have all we have that the district court finds out for example that suspension of the faculty member does not require an immediate threat of physical harm emotional or reputational harm meet that standard what your standard of review of that that finding the district court it's it would be i would say would be didn't know about that you would be able to look at the terms the contract and and you would have to accept the findings of fact in terms of that that the university's determination that there was you know this type of harm that district court find just records findings of fact we don't  would obviously be the under the much lower lower standard and the finding that the policy does not require informal processes for all offending conduct that would be under the lower standard since that is a finding  around i do have just a couple questions there was if some of the briefing talked about the district court the ruinously considering the two thousand and ten agreement and i think that the only place we see it is like a duck a parallel citation once dr fatal get all the process he was due there was a complaint filed he was given notice of it in that with the university's highest level officials giving notice of the consequences of at least from their point of view if eithe show contrition took many weeks before that video was taken down he suspended he's given he's invited multiple times by the university to participate in the the ad hoc committee review finally h findings of fact so so when we talk about it's not somebody that we just said you know what you're throwing in our side you're out of here didn't do that you got paid for seven months he got two committees to review he was it he got the what the policy requires and he said it's quote more importantly the faculty handbook explains that the informal process was not applicable when serious violations of professional responsibility we tell policy said there's there's two different procedures there's an informal procedure for the small stuff and there's a formal procedure for the big stuff but the language is being well it varies language that is taken from the old policy input i nto the new policy but it's but it's restrained in the new policy it's a repudiation of the old policy where it says because we recognize that the purpose of this is correct is therefore we're including both the small stuff and the big billable no my argument is that they will require to specify corrective action and that they didn't do it and that was it that that's the clearest requirement that they have their university believes that they're there is this specification of corrective action is one of the things that has to happen so that's what's in the contract is none right and so and so and so if there if that's the university's belief that there is none then we're into the realm of they breached the contract and they've got affirmative defenses and that a by failing to specify but then you're suggesting that if every instant no matter what the behavior is there must be a specification sounds like you're saying the fault on universities part is that they didn't say in writing or say out loud no remedial steps possible no corrective action possible instead they acted on it in a way that communicated that implicitly by going to suspension and dismissal if they've concluded there is no corrective action to be specified what we're do you find i move forward on anything any further discipline well it says will you draw our attention soon as you came up to the podium they have to specify corrective action yes and any so the answer to that will be an affirmative defense if it should be what can they do next into the contract and if the their behavior reflects none can be taken they should be able then to provoke proceed to the next step but that doesn't that doesn't make it any less of a breach of the eight or nine lines down which is when i turn to your attention to before they can suspend at any time to work which means they don't have to wait for corrective action they got suspended a time absolutely but they can't homemade them time and i mean that's that's what's that's  and it wasn't conditioned in any way on the idea that this is a lot serious thing or that there was some sort of substantive trigger for this specification of corrective action there simply was a blanket requirement of the specification of corrective action which you're saying has to be stated explicitly but if you have case if they have said here in the meeting or in writing simply that there is no corrective action available that that would satisfy the contract as as you interpret it now as i interpret it they're required to specify corrective action they have to say these are the things that would be correct the example well we're we're not disputing the immediate harm i think but the answer to your to the to the question of what to do with the findings i read the findings of fact as being a sensually  restating the conclusions of law i don't think that there are factual questions credibility issues or or or disputes a fact that are being decided there i understand the findings of fact here to be essential a fact or restatement of the enter judgment on partial findings you have to have findings of fact and conclusions of law but i don't think there were any legal and sorry any factual disputes here that the judge was was resolving or or purporting to resolve i think that there were that the statements that he made in the factual findings were were were driven by the legal conclusions and will restate in a legal conclusions thank you very much