J-A16017-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

JEFFREY THOMPSON 

Appellant

v.

THE PENNSYLVANIA STATE 

UNIVERSITY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1460 MDA 2022

Appeal from the Order Entered September 21, 2022

In the Court of Common Pleas of Centre County Civil Division at No(s): 

2017-1270

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 28, 2023

Appellant, Jeffrey Thompson, appeals from the order entered on 

September 21, 2022, in the Court of Common Pleas of Centre County, granting 

summary judgment in favor of The Pennsylvania State University (“PSU”). 

After careful review, we affirm. 

The trial court provided a detailed recitation of the facts and procedural 

history of this matter, which we need not reproduce herein. See Trial Court 

Opinion and Order (“TCOO”), 9/21/22, at 1-6. Briefly, Mr. Thompson was 

hired as the head coach of PSU’s women’s gymnastics program (“WGP”) in 

2010, pursuant to a written employment agreement. Id. at 2-3. In 2011, 

PSU reprimanded Mr. Thompson for his violations of the PSU Policy, which 

protected students’ right to privacy, and warned him that “further misconduct 

could lead to additional discipline or even termination.” Id. at 2. After several 
J-A16017-23

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anonymous letters criticizing Mr. Thompson’s performance with respect to the 

WGP and his treatment of the gymnasts, an investigation was conducted by 

the Deputy Director of Athletics. Id. at 3. The Academic Advisor and two 

senior members of the women’s gymnastics team denied the validity of the

allegations against Mr. Thompson. Id. 

In May of 2015, Mr. Thompson entered into a second written 

employment agreement with PSU, which went into effect immediately upon 

the expiration of the first employment contract. Id. This contract defined “for 

cause” termination as including, but not limited to, violations of the National 

Collegiate Athletic Association (“NCAA”), Big Ten, and PSU policies; failure to 

cooperate with supervisory authorities; and other misconduct. Id. In 

December of 2015, after PSU’s investigation of multiple anonymous 

complaints concerning the WGP, disciplinary letters were placed in Mr. 

Thompson’s personnel file, and he was warned that “future misconduct could 

result in further disciplinary action up to and including termination.” Id. at 4. 

In February of 2017, the assistant coaches of the WGP expressed concerns 

regarding Mr. Thompson’s conduct. Id. at 5. Subsequently, the Title IX 

Coordinator met with PSU’s Athletic Director to discuss Title IX violations and 

prior misconduct by Mr. Thompson. Id. at 5-6. Mr. Thompson was terminated 

on February 23, 2017, “for cause.” Id. at 6. 

On July 27, 2017, Mr. Thompson filed a complaint against PSU, alleging 

defamation, false light, and breach of contract. See generally Complaint, 

7/27/17. After the denial of its preliminary objections, PSU filed an answer 
J-A16017-23

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with new matter on December 17, 2018. Mr. Thompson filed a reply to PSU’s 

new matter on January 29, 2019. TCOO at 1; PSU’s Brief at 3. On July 11, 

2022, PSU filed a motion for summary judgment. TCOO at 1. Following the 

submission of briefs and oral argument, the trial court entered an order on 

September 21, 2022, granting summary judgment in favor of PSU and 

dismissing all claims brought by Mr. Thompson against PSU. Id. at 14. 

Mr. Thompson filed a timely appeal, followed by a timely, court-ordered 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On 

November 2, 2022, the trial court issued an opinion in compliance with Rule 

1925(a), indicating that the issues raised by Mr. Thompson were addressed in 

its September 21, 2022 opinion. On appeal, Mr. Thompson presents the 

following sole issue for our review: “Whether the trial court committed an 

error of law when it granted [PSU’s] motion for summary judgment when [Mr. 

Thompson] adduced evidence of actual malice in support of his defamation 

and false light invasion of privacy claims.” Mr. Thompson’s Brief at 4 (cleaned 

up).

1

 

Our standard of review of an order granting or denying summary 

judgment is well-settled:

We view the record in the light most favorable to the nonmoving 

party, and all doubts as to the existence of a genuine issue of 

material fact must be resolved against the moving party. Only 

where there is no genuine issue as to any material fact and it is

clear that the moving party is entitled to a judgment as a matter 

____________________________________________

1 Mr. Thompson does not challenge the trial court’s granting of summary 

judgment regarding his breach of contract claim against PSU. 
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of law will summary judgment be entered. Our scope of review of 

a trial court’s order granting or denying summary judgment is 

plenary, and our standard of review is clear: the trial court’s order 

will be reversed only where it is established that the court 

committed an error of law or abused its discretion. 

Siciliano v. Mueller, 149 A.3d 863, 864 (Pa. Super. 2016) (citation omitted). 

Mr. Thompson essentially argues:

Had the trial court reviewed the evidentiary record in the light 

most favorable to [him] and resolved all doubt as to the existence 

of a genuine issue of material fact against [PSU], [PSU’s] motion 

for summary judgment on [Mr. Thompson’s] defamation and false 

light claims should have been denied. The trial court’s reason for 

granting summary judgment, i.e., that [Mr. Thompson] adduced 

no evidence of actual malice was a clear error and misapplication 

of the law. 

Mr. Thompson’s Brief at 19. 

In reviewing Mr. Thompson’s arguments, we have considered the briefs 

of the parties, the certified record, and the applicable law. We have also 

assessed the detailed and well-reasoned opinion of the Honorable Jonathan 

D. Grine of the Court of Common Pleas of Centre County. Judge Grine’s 

opinion thoroughly explains his basis for granting PSU’s motion for summary 

judgment. See TCOO at 7-14. Specifically, Judge Grine addresses Mr. 

Thompson’s assertion that the court erred in granting summary judgment with

respect to the defamation and false light claims; he concludes that Mr. 

Thompson failed to show a genuine issue of material fact regarding these two 

claims. See id. at 7-10. Judge Grine’s decision is supported by ample, 

competent evidence in the record, and we discern no error of law or abuse of 
J-A16017-23

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discretion. Accordingly, we adopt his opinion as our own, and we affirm the 

order granting summary judgment in favor of PSU. 

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 11/28/2023
Circulated 10/31/2023 09:37 AM

APPENDIX A 

Opinion and Order of the Court of Common Pleas dated September 20, 2022 
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA 

a«co IBilIIN i.JI 

JEFFREY A. THOMPSON ·a a=»· 

Plaintiff, 

V. 

THE PENNSYLVANIA STA TE 

UNIVERSITY 

Defendant. 

Attorney for Plaintiff: 

Attorney for Defendant: 

NO. 2017-1270 

Thomas B. Anderson, Esq. 

John A. Snyder, Esq. 

OPINION AND ORDER 

. 

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Presently before the Court is The Pennsylvania State University's ("Defendant") Motion 

for Summary Judgment. Based upon the relevant case law and legal conclusions outlined herein, 

the Court grants Defendant's Motion for Summary Judgment in full for Plaintiffs claims of 

Defamation, False Light and Breach of Contract. 

PROCEDURAL HISTORY 

Plaintiff filed a complaint against Defendant on July 27, 2017, alleging Defamation, 

False Light, and Breach of Contract. On August 16, 2018, Defendant filed preliminary 

objections, which this Court denied in its October 25, 2018 Order and Opinion. On July 1I, 

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2022, Defendant filed the Motion for Summary Judgement referenced above. 
FACTUAL HISTORY 

Defendant hired Plaintiff to become the Head Coach of Penn State University's 

("PSU") Women's Gymnastics team in 2010. Plaintiff's wife, Rachelle Thompson, was hired as 

Assistant Coach. Plaintiff was in charge of directing, developing, and implementing the women's 

gymnastics program (the "WGP") at PSU. Plaintiffs duties included: program management; 

compliance with University, Big Ten and the National Collegiate Athletics Association (the 

"NCAA") rules, regulations, and policies; recommendation and supervision of WGP staff and 

assistant coaches; teaching, training, counseling, and advising student athletes; and recruiting and 

public relations. 

In late December 2011, Plaintiff and his wife were the subject of an investigation 

conducted by Vice President and Provost for Affirmative Action Kenneth Lehrman ("Dr. 

Lehrman"). Dr. Lehrman investigated claims that had been made by the parents of a gymnast 

asserting that Rachelle Thompson had engaged in behaviors that caused mental distress and 

anguish to the gymnast. Dr. Lehrman spoke with the affected gymnast, Plaintiff and his wife, 

several other members of the WGP, a member of the Mens' Gymnastics team, and the head 

Coach of the Mens' Gymnastics team. Dr. Lehrman concluded that both Plaintiff and his wife 

were responsible for violations of the PSU Policy, which protected students' rights to privacy, by 

Rachelle Thompson's interference in a student athlete's sexual relationship and Plaintiff's failure 

to stop such conduct. 

As a result of the 2011 investigation, Defendant sent letters of reprimand informing 

Plaintiff and his wife there would be close and continuing monitoring of the WGP and further 

misconduct could lead to additional discipline or even termination. In 2012, Plaintiff signed 

2 R.003510a 
documents certifying that he would abide by PSU's Code of Conduct for Intercollegiate 

Athletics (the "Code of Conduct"). 

In 2014, Defendant received several anonymous letters. These letters criticized the 

performance of Plaintiff and his wife with respect to the WGP. They included accusations of 

verbal and mental mistreatment; forcing gymnasts to train and compete while injured; bullying 

gymnasts about their weight; intimidation by threatening to withdraw scholarships and dismiss 

gymnasts from the team; intimidating support staff such as trainers and academic advisors; and 

causing low morale among the team. The letters called for an investigation and, in some 

instances, for Defendant to remove Plaintiff and his wife as coaches. The then-Deputy Director 

of Athletics, Charmelle Green ("Green") investigated these complaints by interviewing the 

Academic Advisor and two senior members of the team, all of whom denied that the complaints 

were valid. 

In August of 2014, Sandy Barbour ("Barbour") was hired as Athletic Director at Penn 

State. In November 2014, Defendant received additional anonymous letters, similar to the prior 

anonymous complaints, which did not provide any further details. Defendant did not undertake 

investigations based on those additional letters. 

On May 26, 2015, Plaintiff and Defendant entered into a second written employment 

agreement that was to go into effect immediately upon the expiration of Plaintiff's first 

employment contract. The subsequent employment period was July 1, 2015, through June 30, 

2018. The rights of termination, set forth in Item #7 of Exhibit E of Plaintiff's Answer and 

Counterstatement of Material Facts, includes a definition of "for cause" termination. This 

includes, but is not limited to, violations of NCAA, Big Ten, and Penn State policies, failure to 

cooperate with supervisory authorities, and other misconduct. If Defendant were to terminate 

3 R.003511a 
Plaintiff for cause, Plaintiff would only be entitled to compensation eared, but not yet paid, 

compared to the additional payment equal to half of his base salary for the remainder of the 

contract ten for termination without cause. 

In August, 2015, Plaintiff recommended Defendant hire Samantha Brown ("Brown") as 

an Assistant Coach for the GWP, which Defendant later did. Conflicts arose between Plaintiff 

and Brown over their coaching styles. Plaintiff later brought up documented complaints 

concerning Brown to the Athletics Department Administrator, Phillip Esten ("Esten"). Esten also 

met with Brown, who discussed a number of concerns with Plaintiff's coaching, including the 

amount of confrontation with the athletes; the ambiguity of whether the Plaintiff or his wife was 

the Head Coach; calling a student athlete a "pussy"; and ignoring the mental health issues of 

student athletes. 

On December 7, 2015, Esten met with Deputy Director of Athletics Lynn Holleran 

("Holleran") and Athletics Integrity Officer Julie Del Giorno ("Del Giomo") to discuss three 

anonymous hotline complaints conceming the WGP. Later that day, Esten told Plaintiff that 

WGP was "under review. On December 9, 2015, Del Giorno and Investigations Specialist Jeff 

Bowman ("Bowman") began their investigation into the December hotline complaints. 

On December 18, 2015, Esten and Assistant Director Andrea Wickerham (Wickerham") 

met with Plaintiff and his wife to address the concerns raised by Brown. Wickerham also held 

disciplinary meetings with Plaintiff and his wife individually. Following the meeting, 

disciplinary letters were placed in Plaintiffs personal file on December 22, 2015 and Plaintiff 

was warned that future misconduct could result in further disciplinary action up to and including 

termination. 

4 R.003512a 
On January I1, 2016, Defendant terminated Brown as Assistant Coach. Shortly after 

Brown's termination, a series of media stories were published that were largely critical of 

Plaintiff. On May 5, 2016, Pennlive published an article titled "Penn State Gymnasts Accuse 

Coaches of Mocking their Weight, Prying Into Personal Lives; 8 Leave Team." In the article, the 

Pennlive reporter wrote that Barbour, who said she would speak on Plaintiffs behalf, stated 

"They are aware of the fact that these allegations have been made.... They are cooperating fully 

and look forward to learning how they can improve." Plaintiff's Answer and Counterstatement of 

Material Facts, Exhibit D. Barbour also said: "the university puts significant resources into 

investigating claims of abuse and reiterated that nothing the department learned about the 

Thompsons in years past warranted severe reprimanding." Id. 

In June, 2016 Esten completed his end of season review of the 2015-2016 WGP season. 

The review process included an anonymous fall 2015 WGP Athlete Survey as well as spring 

2016 end of season reviews completed with all members of the WOP team. In the results, one of 

the thirteen team members felt the program exceeded expectations and six of the gymnasts felt 

the program fell below expectations. Six gymnasts rated Plaintiff as "poor" or "fair". Ten of the 

thirteen gymnasts felt there was "unreasonable pressure" to compete in voluntary activities. On 

May 20, 2016, Rachelle Thompson announced her intention to resign as Associate Head Coach, 

Women's Gymnastics. Plaintiff remained as Head Coach and Kera Molinaro ("Molinaro") and 

Josh Nilson ("Nilson") were hired as Assistant Coaches for the 2016-2017 season. 

On February 19, 2017, Esten attended an away meet in Texas. On the retum trip, 

Molinaro and Nilson asked to meet with Esten to discuss their concerns regarding the WGP, 

Plaintiff, and the things Plaintiff had done contrary to what Defendant asked him to do. This 

conduct included statements concerning athletes' bodies and sexual relationships. On February 

5 R.003513a 
22, 2017, Title IX Coordinator Paul Apicella ("Apicella") met with Molinaro and Nilson to 

discuss Plaintiffs conduct. On February 23, 2017, Esten and Apicella met with Plaintiff to 

review his conduct. Following that meeting, they met with Bardour to discuss Title IX violations 

and prior misconduct. Bardour terminated Thompson on February 23, 2017. The termination 

letter stated the firing was "for cause". After termination, Plaintiff applied for approximately 13 

NCAA Division I positions at various institutions. On June 27, 2017, Plaintiff accepted an offer 

of employment from a family friend and is currently employed at Pearland Gymnastics Academy 

in Pearland, Texas. 

DISCUSSION 

A party may move for summary judgment as a matter of law if, after completion of 

discovery relevant to the motion, an adverse party who will bear the burden of proof at trial has 

failed to produce evidence of facts essential to the cause of action. Pa. R.C.P. 1035.2. "The 

movant bears the burden of establishing that there is no genuine issue of material fact and that he 

is entitled to judgment as a matter of law...in addition, the moving party may meet its burden of 

showing an absence of material issues by demonstrating that there is an absence of evidence to 

support the nonmoving party's case." Becker v. Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 

110(7 Cir. 1990). 

To survive a motion for summary judgment, the non-moving party "must adduce 

sufficient evidence on an issue essential to his case and on which he bears the burden of proof 

such that a jury could return a verdict in his favor." Ertel • Patriot-News Co., 674 A.2d 1038, 

1042 (Pa. 1996). Non-moving parties seeking to avoid the entry of summary judgement may not 

establish an issue of fact or rebut the movant's evidence through reliance on the mere allegations 

6 

R.003514a 
or denials contained in their pleadings. See Pa. R.C.P. No. 1035.3(a); Briggs • SW Energy 

Production Co., 657 Pa. 38, 224 A.3d 334, 336 (Pa. 2020). In ruling on a Motion for summary 

judgment, "the court must examine the record in the light most favorable to the nonmoving 

party." Zimmerman ». Zimmerman, 469 A.2d 212, 213 (Pa. Super. 1983). 

A trial court is not bound by its earlier ruling on preliminary objections when considering 

a motion for summary judgement in the same case. Neidert v. Charlie, 143 A.3d 384,391 (Pa. 

Super. 2016). The Court notes that, despite its October 25, 2018 Order and Opinion dismissing 

Defendant's Preliminary Objections on these claims, the standard now is whether Plaintiff has 

successfully shown evidence of a dispute of material fact, not the standard for Preliminary 

Objections of whether, on the facts averred, the law says with certainty that no recovery is 

possible. Assoc. of Settlement Cos. V. Dept. of Banking, 977 A2d 1257, (Pa. Comm. Ct. 2009). 

L. DEFAMATION AND FALSE LIGHT 

The classification of a plaintiff as a public or private figure is a question of law to be 

determined initially by the trial court. See Am, Future Sys., Inc. v. Better Business Bureau of E. 

Pa., 592 Pa. 66, 76 (2007) (citing US. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 

914, 938 (3d. Cir. 1990)). A general-purpose public figure is an individual who occupies a 

position of fame or notoriety in the community through extensive involvement in the affairs of 

society. Gertz • Robert Welch inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed. 2d 780 (1974). 

Alternatively, a limited-purpose public figure is one who voluntarily injects himself or is drawn 

into a particular controversy and thereby become a public figure for a limited range of issues. 

Am. Future Sys., Inc., supra, 592 Pa., at 84. A public controversy must be a real dispute where 

7 R.003515a 
the outcome affects the general public or some segment of the public in an appreciable way. Rutt 

v. Bethlehems' Globe Pub Co., 335 Pa. Super. 163, 181, 484 A.2d 72, 81 (1984). This 

controversy may be created by the plaintiff's own actions. Id. 

A plaintiffs choice of a "profession which draws him regularly into regional and national 

view," "leads to fame and notoriety in the community," or "voluntarily assume[s] a position that 

invite[s] attention," such as athletes and coaches, may make a plaintiff a public figure. See 

generally, Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967) (Where a University of Georgia athletic 

director and former head football coach, who was well known and respected in coaching ranks, 

was a public figure because he "commanded a substantial amount of independent public interest 

at the time of the publications" and "may have attained that status by position alone.. ."), 

Here, Plaintiff was the Head Coach of the Women's Gymnastics Program at PSU. 

Plaintiff was the 2003 and 2008 Southeastern Conference (SEC) Coach of the Year, the 2008 

NCAA Regional Coach of the Year, and "one of only three coaches to take two different schools 

to the National Championships." (SMF, 10; J. Thompson Dep., 36:21-25). Plaintiff's position. 

performance in that role, and the program itself, identify Plaintiff as a public figure and, as such, 

the allegations by students and parents that led to this controversy are subjects of public interest 

in the local community, as well as nationally. Therefore, Plaintiff is at least a limited-purpose 

public figure. 

Additionally, Courts regard speech on matters impacting educational institutions and 

their athletic programs as matters of public concern. See generally, Curtis Pub. Co. ». Butts, 

supra, at 154. The statements at issue here involve prepared statements, press releases, and 

remarks by Barbour in media interviews responding to media inquiries seeking comment on 

& R.003516a 
.. 

allegations of mistreatment of student athletes by their coaches. These are legitimate and 

newsworthy matters of public concern that are of interest to the community. 

Where "the plaintiff is a public figure or official, . . or the statements relate to a matter 

of public concern, then to satisfy First Amendment strictures[,] the plaintiff must establish that 

the defendant made a false and defamatory statement with actual malice." Am. Future Sys. Inc.. 

supra, 592 Pa., at 83-83. This standard applies to the claim of Defamation as well as the claim of 

False Light. See Seale ». Gramercy Pictures, 964 F. Supp. 918, 924 (E.D. Pe. 1997); see also 

Time, Inc. • Hill, 385 U.S. 374, 389, 87 S. Ct. 534, 17 Ed. 2d 4456 (1967). 

As Plaintiff is a public figure and the allegations here involve matters of public concem. 

the relevant standard is whether the statement was made with actual malice. Am. Future Sys., 

Inc., supra, 592 Pa., at 83-84. A statement made with actual malice is made "with knowledge 

that it was false or with reckless disregard of whether it was false or not." N.Y. Times Co. v 

Sullivan, 376 U.S. 254, 279 (1964). "Mere negligence or carelessness is not evidence of actual 

malice...." Coleman v. Ogden Newspapers, Inc., 2016 Pa. Super. 136, 142 A.3d 898, 911 (Pa. 

Super. 2016). 

The statement at dispute here (the "Statement") is Barbour's statement to Pennlive in its 

May $, 2016 article titled "Penn State Gymnasts Accuse Coaches of Mocking their Weight, 

Prying Into Personal Lives; 8 Leave Team." In the article, Barbour stated "[t]hey are aware of 

the fact that these allegations have been made. ... They are cooperating fully and look forward 

to learning how they can improve." Plaintiff's Answer and Counterstatemnt of Material Facts, 

Exhibit D. This is the only statement by Defendant Plaintiff claims has a defamatory nature and 

depicts Plaintiff in a false light. 

9 R.003517a 
.. 

Plaintiff has offered no evidence that Barbour made the Statement with actual malice. 

that is, with knowledge of its falsity or reckless disregard of its falsity. Additionally, the 

Statement is not explicitly false. Esten, Green, Barbour, and others met with Plaintiff to discuss 

allegations and complaints at various times, including 2014 through 2016. Plaintiff was aware of 

the allegations. Although the Statement did not absolve Plaintiff of all allegations, Green's 2014 

investigation only concerned the complaints made in 2014 and Barbour did not have knowledge 

of whether the complaints made in 2015 and 2016 had merit. Therefore, the Statement was not 

false. Additionally, the Statement is merely Barbour's perception of Plaintiffs actions and 

reflects a positive view of the investigation, which, even if seen as a misperception and 

ambiguous, do not rise to the level of actual malice. The fact that Plaintiff did not tell Barbour 

that he was "cooperating fully" and was "look[ing] forward to leaming how [he] can improve" is 

irrelevant. Even if an individual could take it in a negative way, it was not a false statement. 

Moreover, actual malice is a subjective standard and Plaintiff has failed to produce anything 

from the record to indicate Barbour had actual malice in making the Statement. Defendant's 

failure to adopt Plaintiff s preferred message is not actionable defamation or false light. 

Therefore, under the standard of actual malice, Plaintiff has failed to show a genuine issue of 

material fact on his claims of Defamation and False Light. 

I1. BREACH OF CONTRACT 

Three elements are needed to sustain Plaintiffs claim of Breach of Contract: "(I) the 

existence of a contract, including its essential terms, (2) a breach of duty imposed by the 

contract, and (3) resultant damages." Meyer, Darrach. Buckler & Eck, P.L.L.C. • Law Firm of 

Malone Middleman, P.C., 635 Pa. 427, 137 A.3d 1247, 1258 (Pa. 2016). Here, neither party 

0 R.003518a 
disputes the existence of the contract. Instead, Plaintiff is alleging Defendant breached thc 

contract by terminating his employment without cause. 

The definition of "cause" for termination is outlined in Item #7 of Plaintiff's Answer and 

Counterstatement of Material Facts, Exhibit E, where it states: 

"c. Cause. The University may terminate this Contract for Cause. "Cause" as used in this 

contract includes, but is not limited to the following: 

() Deliberate and serious violation of NCAA or Big Ten Conference Rules, 

Regulations or Legislation by Employee [...] 

(iv) A violation by Employee of any policy of the University involving 

dishonesty, moral turpitude or conflict of interest, or any other personal conduct 

that materially impairs Employee's ability to fulfill his assigned duties or reflects 

adversely on Employee's fitness to serve as head women's Gymnastics coach; 

(v) Refusing or failing to comply with the directions of Director of Athletics 

or any other person with supervisory authority over Employee in good faith and to 

the best of Employee's abilities, after notice to Employee of the University's 

expectations; [...] 

(vii) Willful misconduct by Employee; 

(vii) Any other action or conduct of Employee which, to a material extent, 

reflects adversely on the good name and reputation of the University. 

Plaintiffs Answer and Counterstatement of Material Facts, Exhibit E, 7-8 

J1 R.003519a 
The record shows a history of allegations of misconduct from as early as 20ll and 

continuing until Plaintiff's termination. Plaintiff met with Esten, Green, Bardour and multiple 

other employees to discuss the allegations, remedial actions, and consequences. Plaintiff received 

letters in 2011 and 2016, stating that further misconduct could result in termination. 

Additionally, Plaintiff admitted at his deposition his consistent show of disrespect for the team 

members to the athletes and others with demeaning comments, such as: 

a. In discussing the relationship of a gymnast he believed was overweight; "Good, 

maybe [her boyfriend] will fuck some of the fat off of her." (Def. App. P. 835, N.T. 

152:6-7); 

b. Asking if gymnasts "were on their periods." (Def. App. P. 804, N.T. 28:8-16 and p. 

805 N.T. 29:10-12); 

c. With respect to a gymnast he felt was critical of him, Plaintiff stated "I fucking hate 

that bitch." (Def. App. P. 835, N.T. 152:16-18); 

d. Discussing a gymnast's body in the open gym, Plaintiff stated "she just keeps getting 

fatter and fatter." (Def. App. P. 804, N.T. 28:7-9); 

e. In spotting a gymnast, Plaintiff stated "she likes when I touch her butt." (Def. App. P. 

1063, N.T. 365:15-366:20); and 

f. Discussing a gymnast with mental health concems, Plaintiff stated: "I'm thinking she 

should take a whole week off this week and come back next Monday, as long as you 

don't think she will leave here and kill herself" (Def. App. P. 837, N.T. 158:3-7). 

Plaintiff admitted these and other similar comments in his deposition. Defendant states 

that these comments and Plaintiff's actions culminated in a negative environment for the WGP 

and gave Defendant "cause" to terminate Plaintiffs employment. Although the termination letter 

12 R.003520a 
merely stated Plaintiff was terminated "for cause", both Esten and Barbour stated his termination 

was due to the negative atmosphere Plaintiff caused in reference to his inappropriate comments. 

Plaintiff does not provide any precedent to support his position that Defendant needed to put the 

specific misconduct leading to his termination in the termination letter. Plaintiff now asks the 

Court to believe Defendant, despite the various instances of misconduct Plaintiff admitted to in 

the record, merely references those instances as a pretext in order to avoid paying Plaintiff more 

money. Plaintiff points to nothing in the record to support this position and has "cited no legal 

authority to support pretext as a viable basis for a breach of contract claim. See Balmat v. 

Certainteed Corp., No. 04-2505, 2007 WL 4570928, at 9 (E.D. Pa. 2007). After reviewing the 

record and the Plaintiffs undisputed attitude, actions, and comments concerning the student 

athletes, the Court finds no reasonable jury could conclude Plaintiff complied with his 

contractual obligations of fostering a positive relationship with the athletes and avoiding 

misconduct such as ridiculing and insulting the student athletes. 

The Court also notes that Plaintiff incorrectly applies the Nanty-Glo rule. The Nanty-Glo 

rule states "the party moving for summary judgement may not rely solely upon its own 

testimonial affidavits or depositions, or those of its witnesses, to establish the non-existence of 

genuine issues of material fact." Dudley ». USX Corp., 414 Pa. Super. 160, 606 A.2d 916, 920 

(Pa. Super. 1992); Nanty-Glo ». American Surety Co., 309 Pa. 236, 163 A. 523 (1932). The rule 

does not apply here, where Defendant supports its motion with admissions of the opposing party 

and relies on documentary evidence, such as the articles. See Wells Fargo Bank, N.A. v. Joseph, 

183 A.3d 1009, 1012 (Pa. Super. 2018). Additionally, the rule does not apply where Plaintiff, 

having the burden of production, fails to state a prima facie case and fails to produce evidence of 

13 R.003521a 
« 

a dispute of material issue of fact. See Ack V. Carroll Twp., 661 A.2d 514, 516-17 (Pa. Cmwlth. 

1995). 

As there is nothing in the record to support Plaintiffs claims and show a dispute of 

material issue of fact and, for the reasons stated above, the Court enters the following order: 

QRDER 

AND NOW, this l'day of September, 2022, after argument on the matter on 

September 1, 2022 and upon reviewing briefs on the matter, the Court GRANTS Defendant's 

Motion for Summary Judgement in full and Plaintiffs claims are DISMISSED. 

BY THE COURT, 

14 R.003522a 
Mimi Shento 

From: 

Sent: 

To: 

Subject: 

Sheri Geis 

Monday, October 30, 2023 12:15 PM 

Diane M. Cutrara; Mimi Shento 

A16017-23 Thompson V. PSU 

Hi! I just finished my memo in the above case. Lisa & Cory reviewed it. We are affirming on the trial court's opinion. I 

have the record at home with me. But the opinion is attached to the docketing statement on PACMS (14 pages). Can 

you please print it to attach to the memo and then give it to the Judge to review? Thank you! 

Sheri 

1