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Pack v. Truth Publishing Company, Inc.

Court of Appeals of Indiana

April 23, 2019

Kevin Pack, Appellant-Plaintiff,
Truth Publishing Company, Inc., and John S. Dille III, Appellees-Defendants.

          Appeal from the Elkhart Superior Court The Honorable Kristine A. Osterday, Judge Trial Court Cause No. 20D01-1701-PL-15

          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 History[2]

         [¶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 ...

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