A middle-school German teacher who settled a lawsuit claiming he was fired because he was an atheist failed to prove Middlebury Community Schools violated confidentiality terms of the settlement, the 7th Circuit Court of Appeals ruled Thursday.
The panel upheld a ruling for the school system in Kevin Pack v. Middlebury Community Schools, 20-1912.
Pack’s separate defamation claims against the Elkhart Truth newspaper were rejected by the Indiana Court of Appeals in 2019. Pack sued after the paper published a story under the headline, “Fired Northridge teacher, an atheist, sues Middlebury Community Schools for religious discrimination”.
In the instant federal lawsuit, Pack claimed his former employer had violated terms of the settlement in his initial suit.
After the school board fired Pack in 2014 after less than a year on the job, the school system posted a press release on its website, which remained as of Thursday, that denied unspecified “rumors” about what prompted his firing. “Mr. Pack was merely a poor teacher, whose overall performance regressed throughout the school year and showed no potential for improvement,” the letter read in part.
Pack alleged the schools violated the confidentiality terms of his settlement in three ways: by maintaining the press release on its website; by the superintendent submitting an affidavit critical of him in support of the Elkhart Truth’s motion to dismiss; and by making statements to prospective employers outside the bounds of the settlement. The Northern District rejected those claims, and its judgment was affirmed by the 7th Circuit.
The panel noted the press release was issued before Pack agreed to the settlement. “During settlement negotiations, Pack could have sought to include in the agreement an obligation that the School rescind the press release, remove it from its website, redact it, or protect it with a password. But Pack apparently did not seek any of this. Or if he did, the School did not agree,” Judge Daniel Manion wrote for the panel. “Indeed, the agreement releases prior claims, which include prior claims pertaining to the pre-existing press release.”
The 7th Circuit noted no Indiana Supreme Court case is on point regarding whether, as Pack argued, the press release “speaks anew each time someone accesses it,” but Pack did not seek transfer after the COA ruled against him in his defamation case. The COA also denied his petition for rehearing.
Nevertheless, the panel held, “Courts have consistently rejected arguments similar to Pack’s,” noting the cases he cited from other jurisdictions are of little help.
“We conclude that the Indiana Supreme Court would conclude that the press release is not a new statement each time someone accesses it on the School’s website, and that the first half of the settlement agreement’s forward-looking nondisparagement paragraph does not compel the School to retract, take down, redact, block, or password-protect the preexisting press release on its website,” the court held. “Merely maintaining its website with the pre-existing press release did not breach the first half of the non-disparagement paragraph.”
The second half of that nondisparagement paragraph dealt with the schools’ conduct, but the panel found Pack failed to develop that argument on appeal. “We make no prediction about what the Indiana Supreme Court would do with a well-developed and supported ‘conduct’ clause argument, distinct from a republication argument,” Manion wrote.
The panel also found the superintendent’s affidavit in the Elkhart Truth litigation was subject to absolute litigation privilege and that Pack was not helped by two callers he had pose as potential employers who were told by school staff members that he was fired. The settlement said the schools would provide only the positions Pack had held and dates of employment “without other information or comment.”
“(I)n his appellate reply brief (Pack) says he has never alleged the School provided information about (him) to his potential employers. Pack seemed to shift gears during oral arguments,” Manion wrote. “There, he reiterated his argument that the purpose of the sting operation was to show the School’s motive and intent. But, for the first time in this appeal, he also seemed to try to claim that the School’s statements to his recruited callers violated not merely the ‘prospective employers’ clause but also the broader non-disparagement clause. But Pack did not make this argument in his appellate briefing. So he lost the chance.
“Even accepting the facts in the light most favorable to Pack, and drawing all reasonable inferences in his favor, we agree with the district judge that the School is entitled to judgment as a matter of law,” the panel concluded.