Nolan v. Cn8

• Decision Date: 29 August 2011
• Docket Number: No. 10–2239.,10–2239.
• Parties: Barry NOLAN, Plaintiff, Appellant,v.CN8, the Comcast Network, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

656 F.3d 71

32 IER Cases 1293

Barry NOLAN, Plaintiff, Appellant,

v.CN8, the Comcast Network, et al., Defendants, Appellees.

No. 10–2239.

United States Court of Appeals, First Circuit.

Heard May 4, 2011.Decided Aug. 29, 2011.

Lawrence P. Murray, with whom Laura R. Studen, Joshua N. Cook, and Burns & Levinson LLP were on brief, for appellant.Joshua M. Davis, with whom Evan J. Shenkman, Asha A. Santos, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. were on brief, for appellees.Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.LIPEZ, Circuit Judge.

Barry Nolan, a regional television personality, was discharged from his employment with The Comcast Network, LLC (“Comcast”) after he publicly protested the selection of political commentator Bill O'Reilly for a prestigious broadcasting award. In response to this discharge, Nolan filed in the Massachusetts Superior Court a claim of speech-motivated retaliation under the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws Ann. ch. 12, §§ 11H, 11I. After Comcast's removal of the case to federal court, the district court entered summary judgment in favor of Comcast on Nolan's suit, finding no violation of the MCRA. We affirm.

I.

On appeal from the grant of summary judgment, we recite the facts of record in the light most favorable to the non-moving party. E.g., Faiola v. APCO Graphics, Inc., 629 F.3d 43, 45 (1st Cir.2010).

In 2008, Nolan was employed by Comcast as the executive producer and on-air host of the television program “Backstage with Barry Nolan.” The program aired on CN8, Comcast's northeast regional cable television network, and primarily featured celebrity interviews and local entertainment news. A written agreement set forth the terms of Nolan's employment with Comcast. By its terms, the employment was to run for two consecutive twelve-month periods, from May 2007 to May 2009.

Two paragraphs of the concise, ten-page document addressed the possibility of Nolan's premature discharge. Paragraph 6 set out several conditions under which Comcast was permitted to terminate the agreement without consequence. Among them were the following:

b. Termination by Company

I. The Company determines in its sole and absolute discretion that Employee should be removed from the position Employee is presently employed under this agreement;

...

v. Employee engages in any other act or omission warranting termination of employment in accordance with Company policy, including anything which, in the Company's sole and absolute judgment, brings Employee or the Company into public disrepute, contempt, ridicule, or scandal, or which, in the Company's sole and absolute judgment is offensive to a substantial segment of the viewing public or would reflect unfavorably on the Company's interests or reputation.

Paragraph 7 of the contract, meanwhile, established Comcast's obligations to Nolan should it elect to discharge him “for any reason other than the reasons set forth in Paragraph's [ sic ] 6(a) and 6(b) above.”

In April, Nolan learned that the New England chapter of the National Academy of Television Arts and Sciences (NATAS) intended to honor the high-profile Fox News commentator Bill O'Reilly with the prestigious Governor's Award. The award would be presented at NATAS's annual Emmy Awards ceremony in Boston. Nolan, himself a New England NATAS member and 2008 Emmy Award nominee, did not believe O'Reilly was a worthy choice for the award. On April 4, he sent a lengthy e-mail to other NATAS members in which he sharply criticized the selection of O'Reilly. He described the choice as, among other things, “an appalling and deeply offensive lapse in judgment,” one which he feared “would legitimize the buffoonish excuse for journalism that Mr. O'Reilly presents on a nightly basis.” Nolan sent this missive from his Comcast-affiliated e-mail address and included his Comcast-issued work phone number at the end of the message.

On April 8, Nolan's direct supervisor and CN8's Senior Director of Programming, Eileen Dolente, warned Nolan that he should “be selective about what [he] send[s] on the company address.” She also reminded him that Comcast needed to maintain a business relationship with NATAS because CN8 held the exclusive television broadcast rights for the Emmy Awards ceremony. Nolan acknowledged the warning and agreed to send future e-mails from his personal e-mail address.

Nolan continued to voice his displeasure with O'Reilly's selection for the Governor's Award, however. The day after the warning from Dolente, he was contacted by a reporter for the Boston Herald to provide his comments on the subject. Upon learning of Nolan's contact with the media, Jon Gorchow, CN8's Vice President and General Manager, sent Nolan a sternly worded e-mail detailing CN8's “official position” on the protest. Among other things, Nolan was informed that CN8 had already drafted a press release that it would issue, if necessary, to distance the network from his personal comments. He was also instructed not to attempt to solicit support for his “campaign” from other CN8 employees, and was encouraged to speak to CN8's public relations department before speaking to the press any further. The e-mail ended, “[B]y nature of your being a public figure, and a cn8 employee, you have certain obligations to the network that you must take into account here.”

Less than an hour after receiving Gorchow's e-mail, Nolan contacted the reporter from the Boston Herald to provide additional material about O'Reilly. On April 11, that newspaper published an article entitled “Barry Nolan pleads: Give Bill the boot!” In it, Nolan was identified as “CN8's Barry Nolan” and was twice quoted describing O'Reilly as a “mental case.” That same day, Nolan sent an e-mail from his personal e-mail address to other 2008 Emmy Award nominees in which he urged them to join his “petition of protest” lest their awards be “forever tarnished” by O'Reilly's receipt of the Governor's Award.

Following the Boston Herald story, Nolan's protest was heavily criticized in the online blog “Tabloid Baby.” Over the next few days, Nolan repeatedly defended his actions and attacked his online critics; he submitted a rejoinder to the initial article in “Tabloid Baby” in which he insinuated that the author had a drinking problem, and he derided critical commenters as “O'Reilly Fanboys.” He even dared one (who, though anonymous, purported to be an attorney) to “Sue me you dipstick.”

Just days before the Emmy Awards ceremony, Dolente flew from Philadelphia to Boston for a face-to-face meeting with Nolan. The purpose of the meeting was for Dolente to relay her instructions about Nolan's behavior at the upcoming Emmy ceremony. According to Nolan, Dolente's message was, “Be careful. Watch what you do. Don't make a scene. This is serious.” She also clearly implied that Nolan's continued protest could result in adverse economic consequences for him.

Nolan arrived at the awards ceremony on May 10 with approximately one hundred copies of a homemade pamphlet. The pamphlet, six pages in length, detailed numerous examples of why Nolan believed O'Reilly to be a poor choice for the Governor's Award, including rather explicit details that had emerged from a sexual harassment lawsuit against O'Reilly. Nolan left copies of his pamphlet in various public areas outside the ballroom in which the ceremony was to be held, and on the dining tables inside the ballroom, one of which had been purchased by Comcast for Nolan and the “Backstage” team to attend.

At the ceremony, Nolan was approached by NATAS president Tim Eagan, who expressed his disapproval of Nolan's protest. In addition, Nolan was confronted at his dining table by hotel security, who informed him that he had to stop distributing the pamphlets. When O'Reilly was formally announced as the recipient of the Governor's Award during the ceremony, Nolan stood up and left the room. He did not return to see his staff win Emmy Awards. The Senior Producer for Nolan's show said that his conduct “put a bit of a damper on the night for the staff.” She also stated that she was approached that night by a Comcast executive who conveyed his displeasure with Nolan's protest.

That evening, Gorchow called Mike Doyle, the President of Comcast's Eastern Division, to apprise him of Nolan's actions. Later, Gorchow typed up a chronology of events and the merits of suspending Nolan as an alternative to terminating him. Among other things, Gorchow wrote:

Barry put his own personal point of view ahead of the needs of the network, and did so at an industry function where he was a representative of the network, and presumably where his attendance was paid for by the network, and the result very well could have been extremely embarrassing for the network.

On May 12, Nolan received a memorandum suspending him for “insubordination and breach of contract.” The memorandum quoted Paragraph 6(b)(v) of the employment agreement and included claims that Nolan had been “observed in a heated exchange” with Eagan on the night of the awards ceremony and that “[a]fter the event there was much discussion among the attendees of what had occurred and the spectacle [he] created.” Nolan was ordered to refrain from any further communication with the media until his suspension was lifted. The next day, Dolente sent an e-mail to Nolan explaining, “[I]t's not the disagreement with the award decision that led to the suspension, but rather the actions you took, which directly contradict the language in your contract. That's the bottom line here....”

The same day Nolan received his suspension notice, Brian Roberts, Chairman and CEO of Fox News, received a letter from O'Reilly which read as follows:

We at The O'Reilly Factor have always considered Comcast to be an excellent business partner and I believe the same holds true for the entire Fox News Channel. Therefore, it was puzzling to see a Comcast employee, Barry Nolan, use Comcast corporate assets...