A former teacher at a high school who was fired later sued the school, alleging he was fired because he was an atheist. After the teacher was dismissed, the school published a press release on its website stating that the teacher had been terminated. The teacher and the school entered into a settlement agreement that included a nondisparagement clause. The teacher later sued the school a second time, arguing that it violated the nondisparagement clause by keeping the press release active on its website. The district court granted summary judgment for the school, and the teacher appealed. The appellate panel affirmed the decision of the district court, finding that the settlement agreement clause was only forward-looking and that the teacher could have negotiated for the removal of the existing press release but failed to do so. The panel rejected the teacher’s argument that each time a person accessed the press release online a new breach occurred.
In August 2013, Middlebury Community Schools hired Kevin Pack to teach high school German. Pack’s employment was terminated less than a year later, in April 2014. Soon after the termination, the school published a press release about Pack on its website criticizing Pack. The press release remains publicly available on the school’s website. In January 2015, Pack sued the school, claiming that it fired him because he was an atheist.
In November 2016, Pack and the school settled the case and entered into a settlement agreement. Pack agreed to release all claims against the school accruing before November 2016. The school agreed to maintain a level of confidentiality and agreed to tell Pack’s prospective employers only limited information about him. In January 2017, Pack sued The Elkhart Truth in Indiana state court, alleging that a January 2015 article about his lawsuit defamed him. The school superintendent, Jane Allen, gave an affidavit in support of the newspaper’s motion to dismiss. The affidavit included the press release as an exhibit.
In June 2018, Pack recruited two acquaintances to call the school and pose as his prospective employers. During one call, Allen said that Pack was “terminated” and that the termination was “a matter of public record.” During another, Allen said Pack was “terminated” and that the termination was “for cause.” In November 2018, Pack sued the school for breach of the settlement agreement. Pack argued that the school’s decision to leave the press release on its website, to submit an affidavit in support of The Elkhart Times, and to communicate the fact of his termination to his recruited callers all violated the terms of the agreement. The district court granted summary judgment for the school, and Pack appealed.
The appellate panel began by addressing the press release. The panel stated that the settlement agreement contained a forward-looking non-disparagement paragraph. The panel found that as the clause was prospective, the agreement did not apply to the pre-existing press release. The panel noted that 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 password protect it, but he sought none of these things. Pack argued that every time anyone accesses the press release on the internet after the date of the agreement, the school breached the agreement anew.
The panel noted that the Indiana Supreme Court was silent on the issue of whether a statement on a website speaks anew each time someone accesses it, that a prospective-looking contract applied to a statement created before the contract. The panel stated that courts have consistently rejected arguments similar to Pack’s. The panel found that none of the cases cited by Pack to distinguish his argument were persuasive. The panel determined that the Indiana Supreme Court would conclude that the press release was not a new statement each time someone accessed it on the school’s website.
Next, the panel determined that the affidavit submitted by Allen was privileged, regardless of the fact that the affidavit was submitted voluntarily and not compelled by a subpoena. Finally, the panel found that Pack had no claim against the school related to the phone calls his acquaintances made because the callers were not actually prospective employers. The panel agreed with the district court that the school was entitled to judgment as a matter of law. The panel, therefore, affirmed the decision of the district court.
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