Barry J. Fenchak, who served on the Board from 2022 to 2025, sued the University and two board leaders after his removal. He alleged that his dismissal was retaliation for his efforts to access confidential financial data regarding the University’s endowment and a major ticketing contract with Elevate Collegiate Ticketing, LLC.
The court granted the defendants’ motion to dismiss Fenchak’s state-law claims for defamation, false light, and breach of fiduciary duty. The judge ruled that communications filed in a related state court proceeding are protected by judicial privilege and that nonprofit directors owe fiduciary duties to the corporation, not to fellow trustees.
However, the court preserved Fenchak’s federal constitutional claims under 42 U.S.C. § 1983. The defendants argued that Fenchak’s speech was unprotected because he spoke in his official capacity as a trustee, citing the Supreme Court’s decision in Garcetti v. Ceballos.
The court rejected that argument at the pleading stage, noting that Garcetti applies to public employees, while Fenchak was elected by alumni. The judge observed that if Fenchak is an elected official, it is far from clear that Garcetti applies, citing Third Circuit precedent that declined to resolve the issue.
Citing Third Circuit precedent that declined to resolve the issue, the court held that the law is not clearly established on whether Garcetti bars First Amendment claims for elected officials. The judge noted that many district courts have declined to apply Garcetti in such contexts, while others have not.
Because the status of trustees as employees versus elected officials remains an unsettled question, the court denied the motion to dismiss the First Amendment claims. The defendants may raise the Garcetti argument again at summary judgment.