Termination Complete: Fox News, Bill O'Reilly, and Barry Nolan - Employment Law - U.S. First Circuit
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Termination Complete: Fox News, Bill O'Reilly, and Barry Nolan

Former Comcast regional television personality Barry Nolan lost his speech-motivated retaliation appeal against Comcast this week in the First Circuit Court of Appeals. Nolan claimed that he was fired for publicly criticizing Fox News’ Bill O’Reilly. The Court found that Nolan’s Comcast contract permitted his dismissal with or without cause and affirmed the district court’s dismissal of the case.

Is Barry Nolan a patriot or pinhead? Let’s turn to the talking points to examine whether Nolan’s firing was tainted with an O’Reilly factor.

Nolan was employed by Comcast as the executive producer and host of the television program “Backstage with Barry Nolan.” Two paragraphs of Nolan’s Comcast contract addressed the possibility of Nolan’s premature discharge, and afforded Comcast sole and absolute discretion to dismiss Nolan.

In April 2008, Nolan learned that Bill O'Reilly would receive the prestigious Governor's Award at National Academy of Television Arts and Sciences (NATAS) annual Emmy Awards ceremony in Boston. Nolan did not believe O'Reilly was a worthy choice for the award, so he sent a lengthy e-mail from his Comcast work account to other NATAS members in which he criticized the selection of O'Reilly.

Nolan's direct supervisor, Eileen Dolente, got wind of Nolan's missive and warned him to "be selective about what [he] send[s] on the company address." She also warned him that his actions could compromise Comcast's business interests. Nolan acknowledged the warning and agreed to send future emails from his personal email address, but he persisted in courting media attention about his dissatisfaction with O'Reilly's award. In the following weeks, Nolan was warned multiple times about his protest.

Nolan was eventually suspended for insubordination after he distributed 100 copies of a 6-page homemade pamphlet detailing why he thought O'Reilly to be a poor choice for the Governor's Award at the Emmy ceremony.

Following additional instances of insubordination during the suspension, Nolan was fired. Nolan responded by filing a one-count civil complaint pursuant to the Massachusetts Civil Rights Act, alleging that Comcast and its employees interfered with his right to free speech.

The success of Nolan's claim turned on whether or not he was an at-will employee at Comcast because the Massachusetts Supreme Judicial Court has refused to find actionable coercion in the termination of at-will employees under the MCRA. Nolan argued that he was a Comcast contract employee for a definite term who was terminated for cause, and should be allowed to proceed with his claim.

The First Circuit Court of Appeals disagreed, noting that Nolan's employment agreement, whether or not creating "at-will" employment, provided Comcast with discretion to terminate the agreement so close in substance to at-will employment that it could not be distinguished from at-will employment.

Do you think the First Circuit Court of Appeals made a fair and balanced decision in Barry Nolan's Comcast contract case? We've now exhausted our Fox News/Bill O'Reilly vocabulary, so this concludes our no spin zone.

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