Third Circuit: Professor Who Compared Colleagues to Nazis Was Properly Fired 

(CN) – A Third Circuit panel Tuesday upheld the termination of a Marywood University professor who depicted the school’s president as Adolf Hitler in a 2012 parody video.

Frederic Fagal rewrote the captions from a scene in the 2004 film “Downfall” in which Hitler yells furiously upon realizing that the war is lost, to depict then-university president Sister Anne Munley as the Nazi leader and other staff members as Nazi officers.

Although the former tenured professor called the Catholic liberal arts university in Scranton, Pennsylvania, a "fat bureaucratic web and nun casino,” Fagal argued his employment contract required “progressive discipline” that should have protected him from outright termination.

"To put a fine point on it, Fagal contends that, although Marywood could immediately suspend a faculty member who assaulted a student, murdered the dean, or burned down a campus building, it is contractually obligated to undertake a series of corrective actions before it may dismiss the faculty member,” U.S. Circuit Judge Cheryl Ann Krause wrote in a 13-page opinion. 

Marywood University countered that, in cases of “serious violations of professional responsibilities,” the university reserves the right to waive its policy of progressive discipline.

The district court held a bench trial and, in March, entered judgment in favor of Marywood. Fagal appealed.

While both parties seemed to assume the court would review the issue de novo, it instead reviewed the district's findings for error as required by state law, reporting “no error in the district court’s interpretation of the policy.”

"For us to set aside the district court’s interpretation – which was based on text, testimony, and extrinsic evidence informing its factual findings – and to conclude that the policy must be interpreted, as a matter of law, solely on the basis of the text, we would have to conclude that the Policy unambiguously supported Fagal’s interpretation of it,” Krause wrote. “Unfortunately for Fagal, he cannot meet this high standard.” 

U.S. Circuit Judge Stephanos Bibas dissented. The former University of Pennsylvania law professor, who was appointed to the court by President Donald Trump, wrote that "the employment contract is the backbone of a tenured professor’s job."

Bibas asserted that the gradual steps described in the university contract are “not ‘absurd,’ but rather quite reasonable: they require adjudicating guilt and assessing blame and danger before imposing the final punishment."

"Marywood was free to pursue firing Fagal,” Bibas concluded. “But before it could do so, it had to follow its contractually required procedures. Its contract unambiguously mandated a series of gradual steps that it chose to ignore."

U.S. Circuit Judge Patty Schwartz rounded out the three-judge panel. Schwartz and Krause were both appointed to the court by Barack Obama. 

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