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Muppets, Lannisters, and wrongful termination—which one isn’t like the others?

by Mark I. Schickman

Kermit the Frog has been fired! From his birth in 1955 until 1990, Kermit was performed by his creator, Jim Henson. Since 1990, veteran Muppet performer Steve Whitmire donned the green felt. During Whitmire’s tenure, Kermit appeared in over 20 movies, got a star on the Hollywood Walk of Fame, was grand marshal of the Tournament of Roses Parade, and was placed on a U.S postage stamp. The original puppet is in the Smithsonian, but he winters at Disney World. 

In what is most important in life—social media presence—Kermit is a rock star. “Sad Kermit” is a major meme, stemming from a viral four-minute video parody of the frog singing a nonfamily-suitable version of “Hurt.” The Internet again took interest last year when Good Morning America referred to another famous meme of a nonchalant Kermit sipping tea as the “tea lizard.” GMA was chastised from New York Magazine to Popular Science, in what fanside.com called “mass hysteria” over the show’s failure to understand the difference between a lizard and an amphibian.

So will cyberspace react to Whitmire’s abrupt termination on July 10? Whitmire claims he was fired mainly because he protected Kermit’s character when the script called for him to lie to his nephew. “I don’t think Kermit would lie to him,” Whitmire told the Hollywood Reporter, adding that he knew Kermit “better than anyone” and is “outspoken about what’s best for The Muppets.”

But Whitmire may have been too outspoken, crossing the line into “unacceptable business conduct over a period of many years,” according to Disney and The Muppets Studio, referring to his “appalling” conduct toward others. Brian Henson, the son of Kermit’s creator, said firing Whitmire would allow Kermit to return to the lovable prankster that his father created—and that Whitmire had lost.

This firing may be the quintessential creative control battle between the Henson family and the man who has been Kermit for 25 years, a sad case in which an employee failed to understand that he was crossing a line. Whitmire may not have a protectable interest; I don’t think that one can slander or protect a puppet’s reputation for truth.

At least no political foes were beheaded
But a protectable interest does arise in another highly publicized firing, this one described in the U.S. 11th Circuit Court of Appeals’ decision in Rodriguez vs. City of Doral, Florida. In the case, the court answered this question: When can you sue for wrongful termination after you’ve resigned and want to reconsider?

Anthony Rodriguez is a police officer and longtime friend and political supporter of Doral Mayor Juan Carlos Burmudez’s political rival. Of course Rodriguez has a constitutional right to his political beliefs and activities, and he is protected from any retaliation because of his exercise of those protected rights.

But, according to Rodriguez, Bermudez instructed Police Chief Ricardo Gomez to target him and lower his ratings and hound him off the force. Ultimately, he says, he was called into Gomez’s office, terminated immediately without reason, and given five minutes to resign if he didn’t want the termination on his record. Under duress, a crying Rodriguez resigned. He tried to revoke the resignation the next morning, was refused, and sued for violation of his constitutional rights.

Even under these facts showing extreme duress, the trial court threw out Rodriguez’s case because he resigned. The 11th Circuit reversed that decision, listing the factors a court should consider in deciding when duress exists, including, as was alleged here, the five-minute demand for an answer and the lack of any evidence of misconduct. It is a well-reasoned, factually interesting case.

But that’s not why the case is being quoted around the country. Rather, it’s because the court gratuitously opened the opinion with a completely irrelevant footnote citation to Tyrion Lannister from Game of Thrones, catching the interest of legal and business journals coast to coast. Who cares about coerced resignation? What did Tyrion have to say? If we want people to understand the law, the court seems to say, package it in what people are talking about. Everyone’s riding the dragon.

The ability to tap the public consciousness in this day of unlimited data is a rare and valuable gift, a key to success and a mystery to me. I’m green with envy over those who have it. And it’s not easy being green.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. He may be contacted at schickman@freelandlaw.com.