Pa. University President Settles Virus Whistleblower Suit

By Matthew Santoni
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Law360 (October 9, 2020, 4:16 PM EDT) -- The president of Indiana University of Pennsylvania on Friday settled a former employee's lawsuit claiming he was improperly fired for warning colleagues of a potential case of COVID-19 in his department, a day after a Pennsylvania federal magistrate denied the executive's bid to dismiss the retaliation suit.

Even though former director of facilities operations Donald Woolslayer had used his official IUP account when he emailed staff in late March to notify them that an employee had been exposed to the virus by his wife, that warning fell outside his official duties and was therefore speech by a private citizen protected by the First Amendment, U.S. Magistrate Judge Patricia L. Dodge said Thursday.

"The mode of Woolslayer's speech (work account) or his audience (only IUP employees) is not dispositive with respect to whether Woolslayer spoke as a citizen," Judge Dodge wrote in denying IUP President Michael Driscoll's motion to dismiss. "His duties did not encompass alerting IUP employees of a colleague's exposure to a highly contagious disease and advising them to seek medical advice. Because the speech at issue was not part of the work he was paid to perform on an ordinary basis, the court concludes that the complaint adequately alleges that Woolslayer spoke as a citizen."

On Friday, court records showed that Woolslayer and Driscoll had reached a settlement, the terms of which were not immediately disclosed.

Woolslayer's lawsuit claimed that he became concerned in late March after discovering that the spouse of one of his employees had been diagnosed with COVID-19, and the employee was self-quarantining. Woolslayer said he wanted to notify his colleagues, but his supervisors and the university's human resources department recommended against it.

On March 30, Woolslayer sent out a warning anyway, using his university email account to tell other university employees that a colleague had been potentially exposed to the virus and that they should seek medical advice about what to do. The next day, the lawsuit said, Driscoll fired Woolslayer, allegedly because university leadership no longer believed he could effectively perform his duties. Woolslayer sued Driscoll in Pittsburgh's federal court later in April.

Driscoll sought to dismiss the lawsuit on the grounds that, as a public employee of the Pennsylvania State System of Higher Education, Woolslayer's speech was not protected. But Judge Dodge said Thursday that Woolslayer had been acting as a citizen addressing a matter of public concern, and that Driscoll was not immune to liability as a state employee himself.

Woolslayer had contended that his job duties would not have included speaking for the university in such a manner, and Judge Dodge said that talking within the workplace didn't immediately make the talk part of his official duties.

Despite Driscoll's assertion that "the health status of a colleague's spouse and the colleague's subsequent self-quarantine is not a matter of public concern unless that colleague had exposed other employees to infection," Judge Dodge found the potential exposure to COVID-19 was a matter of public concern, especially given its timing in the early days of the pandemic.

"The public import of Woolslayer's email is underscored by its context: it was sent at a time when COVID-19 had caused a statewide public health emergency and had been declared a pandemic," she wrote. "This context bolsters the conclusion that Woolslayer spoke on a matter of public concern, that being the health and safety of not only the IUP community, but also those beyond the immediate community."

And though IUP employees like Driscoll nominally share the state's 11th Amendment immunity from being sued in their official capacities, Woolslayer had cited an exception to that immunity for when a plaintiff is seeking injunctive relief for an alleged federal law violation.

Since the alleged harm — being unable to return to his job — was an ongoing harm, Judge Dodge said Woolslayer could properly invoke the exception to Driscoll's immunity.

"The harm arising from an unconstitutional discharge is ongoing, even if the discharge itself is discrete. Accepting the allegations of the complaint as true, the harm caused by Woolslayer's unconstitutional termination is ongoing and the equitable relief he seeks from Driscoll in his official capacity is prospective," Judge Dodge wrote. "Therefore, Woolslayer's official capacity claim against Driscoll is not barred by the Eleventh Amendment."

The day after Judge Dodge issued her ruling denying the motion to dismiss, a court-appointed "neutral" evaluator filed a report that the case had been resolved. Judge Dodge administratively closed the case pending the execution of a settlement, which an attorney for Woolslayer said Friday remained confidential.

"Judge Dodge correctly held that discharging a public employee for alerting employees about the risks of COVID-19 violates the First Amendment of the U.S. Constitution, and that a high government official is not immune from a lawsuit if he or she does so," Samuel J. Cordes of Rothman Gordon PC told Law360 Friday.

A representative of the university declined to comment.

Woolslayer is represented by Samuel J. Cordes of Rothman Gordon PC.

Driscoll is represented by Sarah J. Simkin and Scott A. Bradley of the Pennsylvania attorney general's office.

The case is Woolslayer v. Driscoll, case number 2:20-cv-00573, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

WOOLSLAYER v. DRISCOLL


Case Number

2:20-cv-00573

Court

Pennsylvania Western

Nature of Suit

Civil Rights: Jobs

Judge

Patricia L. Dodge

Date Filed

April 21, 2020

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