Pack v. Truth Publ'g Co.

122 N.E.3d 958

Kevin PACK, Appellant-Plaintiff,

v.TRUTH PUBLISHING COMPANY, INC., and John S. Dille III, Appellees-Defendants.

Court of Appeals Case No. 18A-PL-1742

Court of Appeals of Indiana.

Filed April 23, 2019

Attorney for Appellant: James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, Indiana

Attorneys for Appellees: Robert B. Thornburg, Maggie L. Smith, Frost Brown Todd LLC, Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] Kevin Pack appeals the trial court's entry of summary judgment for the Truth Publishing Company and John S. Dille III, the owners of The Elkhart Truth newspaper (collectively, "the Newspaper"). The trial court entered summary judgment after the Newspaper moved to dismiss Pack's defamation complaint under Indiana's Strategic Lawsuit Against Public Participation Act, Ind. Code §§ 34-7-7-1 to -10 (2018) ("the Anti-SLAPP statutes"). Pack raises five issues for our review,¹ which we consolidate and restate as the following two issues:

1. Whether the Newspaper's publication was in connection with a public issue.

2. Whether the Newspaper's publication was taken in good faith and with a reasonable basis in law and fact.

[2] We affirm.

Facts and Procedural History²

[3] In August of 2013, Kevin Pack, an atheist, began teaching German at Northridge High School ("NHS") in Middlebury on a probationary contract. Shortly after beginning his employment, Pack became the subject of various complaints by parents, students, and faculty. The complaints alleged that Pack had used profanity in class and had utilized films and literature that contained sexual content. Additionally, students alleged that Pack's lack of respect, organization, and guidance made it difficult to learn. Other NHS employees also complained of Pack's tardiness and absences from school and school functions.

[4] On February 24, 2014, Gerald Rasler, NHS's principal, issued to Pack a "Notice of Preliminary Decision of Immediate Cancellation of Contract." Appellant's App. Vol. II at 33. That notice cited Pack's alleged "immorality, insubordination, neglect of duty, and other just cause" as reasons to support the immediate cancellation of Pack's contract. Id. On February 28, Pack requested a private conference with Jane Allen, NHS's superintendent. Following that conference, Allen recommended the termination of Pack's contract to the Board of Trustees of Middlebury Community Schools ("the School Board"), and Pack requested a hearing with the School Board.

[5] On April 1, the School Board held a hearing at which Pack and his union representative were present. The next day, the School Board terminated Pack's employment. The School Board explained its decision with more than seventy findings of fact, which included the following findings:

19. Mr. Pack showed a movie titled "Lola Rennt" ("Run Lola Run") to his Level One (1) German class, made up primarily of freshmen and sophomores who are under the age of seventeen (17).

20. "Lola Rennt" is rated R in the United States.

21. "Lola Rennt" features scenes which represent two (2) individuals engaging in sadomasochism. The individuals are wearing tiny leather costumes. The male is pictured bent over a sofa, wearing nothing but a dog collar and a leather thong. The female is wearing leather lingerie while holding the male on a leash and winding up to strike him with a whip.

22. "Lola Rennt" contains multiple spoken swear words, including "F[**]k," "F[*****]g B[***]h," "D[**]n," and "S[**]t."

23. Several students expressed concerns to building level administrators and [to] their parents about struggles with their command of the German language due to a lack of review/lack of proper teaching methods to become familiar with the German language ....

24. Students expressed that they felt disrespected by Mr. Pack[ ] because he laughs at students' answers.

25. Students mentioned that Mr. Pack will occasionally yell or get angry if a student does not know the correct answer to a question.

26. Students reported that Mr. Pack will occasionally interrupt the students, sometimes with a comment that is irrelevant to what is being discussed in class.

* * *

28. Students complained that Mr. Pack's lack of organization and guidance often made it difficult to follow what was happening in class.

29. Students stated that the curriculum is confusing[ ] because they are never sure what they are going to learn in class or when to take notes.

30. Students stated that Mr. Pack has created a negative atmosphere where many students do not plan on taking future German classes at NHS.

* * *

36. Several students complained that Mr. Pack tests and quizzes them over topics never covered in class.

37. Students stated that Mr. Pack occasionally leaves the classroom during student presentations.

38. Several students stated that Mr. Pack has used swear words in front of students, using the words "F[**]k" and "G[*]d D[**]n."

39. Students stated that Mr. Pack told the class an inappropriate Jewish joke during a lesson over the Holocaust.

40. Several students stated that they received A's and/or A+'s for work which they had never completed.

41. Several students complained that Mr. Pack loses students' work.

42. Several students complained that[,] when Mr. Pack gave the semester final exam, he allowed the students to grade their own exams. This exam was a common assessment that was required by NHS to be given to all Level Two (2) German students. The results of this exam were used to assess how well the students were performing in German class.

43. Parents expressed concern to Mr. Rasler that their children had fallen behind and would like a plan for those of Mr. Pack's students who would like to continue taking German ... with another teacher.

44. Parents expressed concern to Jane Allen that their children had asked their permission to drop plans of taking future German classes due to their experiences in Mr. Pack's class.

45. Parents stated that they were forced to purchase Rosetta Stone German ... for their children's supplemental studies due to their lack of progress in Mr. Pack's class.

* * *

50. On December 10, 2013, students brought a book down to [another NHS German teacher's] classroom titled (in German), something along the lines of "All the German You Were Never Taught in School." The book featured nude drawings, foul language, and sexual content (even involving animals). The students said that Mr. Pack had pointed the book out to them at the beginning of the year and leaves it out for perusal on his counter....

* * *

58. On December 12, 2013, several students reported getting the mid-term exam with answers given to them.

Id. at 34-38 (citations omitted). Based on those and other findings, the School Board concluded as follows:

1. Based on the statements of fact[ ], Mr. Pack's actions constitute immorality.

2. Based on the statements of fact[ ], Mr. Pack's actions constitute insubordination.

3. Based on the statements of fact[ ], Mr. Pack's actions constitute neglect of duty.

4. Based on the statements of fact[ ], other just cause justifies the immediate cancellation of Mr. Pack's Contract.

Id. at 40.

[6] Following its decision to terminate Pack's employment, the School Board authorized a press release to explain its decision. The press release stated that Pack "d[id] not meet [the School Board's] expectations" of being "proficient and try[ing] to do [his] best when educating our students." Id. at 43. The press release further stated that Pack was "a poor teacher[ ] whose overall performance regressed throughout the school year and showed no potential for improvement." Id.

[7] On January 15, 2015, Pack filed a lawsuit against the Middlebury School Corporation in federal district court in which he alleged that his employment had been terminated, in violation of his federal rights, based on his atheism. Jeff Parrott, a reporter for the Newspaper, learned of Pack's federal complaint soon thereafter. He then reviewed Pack's filings in the federal court and the School Board's press release. He also requested the School Board's findings from Allen pursuant to Indiana's Access to Public Records Act, I.C. §§ 5-14-3-1 to -10 ("APRA"), and Allen provided him with those findings. Parrott further interviewed Pack and Allen, and he received a written statement from Pack's attorney.

[8] On January 24, the Newspaper published on its website an article authored by Parrott and entitled, "Fired Northridge teacher, an atheist, sues Middlebury Community Schools for religious discrimination." Appellant's App. Vol. II at 25. The article discussed the events leading up to Pack's termination and Pack's resulting federal lawsuit. The second sentence of the article stated that "the school corporation maintains it fired German teacher Kevin Pack for insubordination, immorality[,] and incompetence ." Id. (emphasis added).

[9] After the article's publication, Pack contacted Parrott and asserted that Parrott had incorrectly used the term "incompetence" as that specific word had not been recited by the School Board as one of its four reasons for terminating Pack's employment. Pack further informed Parrott that "incompetence" as it relates to the termination of a high school teacher has a specialized meaning, and Parrott's use of the word in an online article would make it harder for Pack to find reemployment. However, despite Pack's request, the Newspaper refused to retract its use of the word "incompetence" as it related to the termination of Pack's employment at NHS.

[10] Pack then sued the Newspaper for defamation. In particular, he asserted that the article incorrectly challenged his competence as a teacher, that the Newspaper "knew [the use of that word] to be untrue," and that, in using that word, the Newspaper "calculated" that it would "cause great injury" to Pack. Id. at 15. In response, the Newspaper moved to dismiss Pack's complaint under the Anti-SLAPP statutes.

[11] The trial court directed the parties to engage in discovery on the Newspaper's motion. Thereafter, the...