Contract Law and Interplay with Free Speech and Employment Law

A Professor Fired Over Hitler Parody Meme Can Proceed With Breach of Contract Suit

An interesting article appeared in the Legal Intelligencer.  There, it was reported that a former professor fired (following his online parody video showing faculty as Nazis) may go forward with a breach of contract claim against the university where he worked, a federal court in Pennsylvania has ruled. As reported by Max Mitchell:

A former professor who was fired after creating an online parody video depicting faculty members as Nazis can proceed with his breach of contract claims against the university where he worked, a federal court in Pennsylvania has ruled.

The teacher, Frederick Fagal, a tenured professor at Marywood University, a Roman Catholic institution, was fired after he created video adaptations of the 2004 German language film “Downfall,” which depicts the last few days of Adolf Hitler’s rule. The adaptation included replacing the English subtitles with his own subtitles mocking faculty members, including referring to the university’s president, Sister Anne Munley, as “FuhrMunley.”

The well-written article further provides:

According to U.S. District Judge Richard Caputo of the Middle District of Pennsylvania, the professor argued that he created the video as a means of supporting “open discussion and unrestricted exchange of ideas” in the wake of a dispute he had with the faculty, but the school contended that the conduct went against the school’s core values.

“This dispute, illustrating the subjective understandings of the contract, and the expectations flowing from it, are the reason why assessments of materiality are ‘inherently problematic,’” Caputo said, in denying summary judgment motions filed by both sides.

The contract claims, according to Caputo, could be traced back to November 2011, when Fagal invited a representative of the Foundation for Individual Rights in Education to speak at the school about free speech on college campuses. He had put up several posters advertising the event, but school personnel removed some of the posters. The school refused to reimburse Fagal, or apologize for removing the signs, Caputo said.

In January 2012, Fagal sent an email from his personal email address to school faculty members about the posters. The message included links to the YouTube videos he’d created.

Along with referring to the school president as FuhrMunley, the videos, which showed Hitler chastising several lieutenants, also depicted the school’s vice president of academic affairs, who is Jewish, as a Nazi, and referenced “a nonexistent plot to have the Fagal character seduced and then accused of rape,” Caputo said.

After learning about the videos, Munley took actions to suspend Fagal and have his contract terminated. The school stopped paying Fagal after August 2012, however, Fagal contended that Munley circumvented the appropriate disciplinary process, and therefore breached the contract.

According to Caputo, the dispositive issue on summary judgment boiled down to what each party believed was the purpose of Fagal’s employment contract. The school argued the contract was derived from the core values and mission of the school, but Fagal contended the purpose of his contract was to promote open discussion, so Caputo determined it would be premature to grant summary judgment.

This case illustrates the interplay between contract law, free speech, and employment law where, ultimately, contract law reigned supreme.

Parenthetically, the idea of filing for summary judgment in a breach of contract case is often a good tactic by the defense to remove from the jury’s consideration key issues, by asking the judge to interpret basic aspects of contract law.  On the defense side, it is generally a good idea to test a Plaintiff’s claim via motion for summary judgment, because even if one loses, the defense can still argue to the jury that the facts in the case fail to support a contract claim.

A denial of a motion for summary judgment puts the defendant in the same position it had been in originally:  awaiting a jury trial, where the will have before it facts regarding an alleged breach of contract.  On the other hand, for the plaintiff, surviving summary judgment can create momentum, in terms of settlement negotiations, because it means that (1) at least one person — the judge — felt that the case was not as clear cut as the defense had asserted in the motion for summary judgment, and (2) the parties will face the time and expense of a jury trial on issues of fact.

This will be an interesting case to watch, if the case proceeds to trial absent a confidential settlement. It will be up to the trial judge to determine what matters are relevant, based on a threshold showing by the attorney offering evidence.

Contact our Pittsburgh lawyers for contract related litigation issues.


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