PHILADELPHIA (CN) — Marywood University didn’t hold back in its response to parody videos that portrayed its president, a nun, as Adolf Hitler. The professor responsible for the roast was swiftly fired.
Backing that result Thursday, Jackson Lewis attorney Donald English urged the Third Circuit to throw out an appeal from the 73-year-old professor, Frederick Fagal, against the Scranton-based Catholic university.
“Remedial action was never on the table when he presented a nun and faculty members as Nazis,” English said of Fagal.
Fagal shared the videos in an email on Jan. 13, 2012, two months after Marywood staff removed posters he had put up around campus, advertising that a speaker from the Foundation for Individual Rights in Education would be making a presentation at his social science class.
Taking footage from the 2004 movie “Downfall,” Fagal inserted English subtitles to portray the characters as fellow faculty members. With the Hitler character identified as Marywood’s then-president, Sister Anne Munley, a caption at one point reads: “My girdle is tight and I need to go to the ladies room.”
Though U.S. District Judge A. Richard Caputo sided with Marywood at a bench trial last year, attorney Matthew Stiegler argued for Fagal Thursday that the school breached his client’s contract.
“We’re not able to argue that this was acceptable and they shouldn’t have suspended him,” Matthew Stiegler. “We can only argue that they didn’t follow procedure.”
Pointing to the school’s own handbook, Stiegler said Marywood was required to consider remedial action.
U.S. Circuit Judge Cheryl Ann Krause questioned if Fagal’s Nazi video was even susceptible to a remedy, and if it was, why that remedy should not be left to Marywood’s discretion.
But Stiegler said the university is required to specify if no remedy exists.
“The language of the contract requires the university to specify remedial action,” said Stiegler. “Any less is a breach of the contract.”
When U.S. Circuit Judge Stephanos Bibas pressed the lawyer for the school on why it failed to take remedial action, however, English insisted that the severity of Fagal’s actions left the school Marywood no other choice but termination.
Bibas also highlighted language in the handbook about how the process of dismissal is supposed to be gradual.
English assured the panel that Fagal’s removal was gradual. In addition to getting paid for the remainder of his contract, Fagal had two committees of review before he was fired.
U.S. Circuit Judge Patty Shwartz rounded out the panel.