United States District Court, S.D. Florida
OMNIBUS ORDER ON ALL PENDING MOTIONS FOR SUMMARY
L. ROSENBERG, UNITED STATES DISTRICT JUDGE
a case with two competing stories. One such story is by the
Plaintiff in this case. Plaintiff brought this suit alleging
that he, a tenured university professor, was fired from his
position because of his exercise of his First Amendment
rights. A second story is told by Plaintiff's former
employer, a university, together with members of the
university's faculty. Defendants' story is that
Plaintiff was fired because he refused to comply with
university policies and procedures.
the Court are three motions: Plaintiff's Motion for
Partial Summary Judgment [DE 247], and two Motions for
Summary Judgment [DE 242] [DE 245] filed by Defendants. Each
Motion has been fully briefed. For the reasons set forth
below, Plaintiff's Motion for Partial Summary Judgment is
denied and Defendants' Motions for Summary Judgment are
granted in part and denied in part.
BACKGROUND AND INTRODUCTION
Court sets forth below some of the facts in this case for
background purposes. Although the Court has endeavored to
only set forth undisputed facts, to the extent disputed facts
below are germane to the Court's ultimate decision, those
disputed facts are discussed in the Court's analysis
James Tracy, was a tenured professor at Florida Atlantic
University-a Defendant in this case. DE 246 at 1. Plaintiff
taught in the School of Communications and Multimedia
Studies. Id. Some of Plaintiff's courses
included “Public Opinion and Modernity” and
“Culture of Conspiracy.” Id. Plaintiff
conducted research in mass shootings, the JFK assassination,
and the Sandy Hook Massacre-a mass shooting event in which
many children were reported to have been killed. See
December of 2012, Plaintiff began to blog about the Sandy
Hook shooting. DE 248 at 2. Plaintiff's blog suggested
that the Sandy Hook shooting had never taken place and was
“staged by the government to promote gun
control.” Id. Plaintiff's blog garnered
national attention and was widely reported by the press.
Id. Many people called on FAU to fire Plaintiff.
See Id. at 2-9.
January of 2013, FAU began to have internal discussions about
Plaintiff's blog. Id. Ultimately, FAU issued a
notice of discipline to Plaintiff pertaining to his lack of
an adequate disclaimer (drawing a distinction between
Plaintiff's opinions and FAU's opinions) on his blog.
Id. at 3. Plaintiff's union defended him.
Id. The parties eventually reached an agreement
wherein Plaintiff used a disclaimer on his blog that was to
FAU's satisfaction. Id. at 4.
Plaintiff amended the disclaimer on his blog, he continued to
teach courses at FAU. DE 246 at 5. In October of 2015,
however, a new dispute-a contractual dispute-arose between
the parties. Id. at 6. FAU has a Collective
Bargaining Agreement (the “CBA”) with its
faculty. Id. at 2. The CBA contains many terms and
conditions, including an article entitled “Conflict of
Interest/Outside Activity.” Id. This article,
hereinafter referred to as the “Policy, ” imposes
certain conditions upon faculty members. DE at 131-33. One
such condition of the Policy is that “[c]onflicts of
interest are prohibited.” Id. at 131. A
conflict of interest is defined as:
(1) any conflict between the private interests of the
employee and the public interests of the University, the
Board of Trustees, or the State of Florida, including
conflicts of interest specified under Florida Statutes;
(2) any activity which interferes with the full performance
of the employee's professional or institutional
responsibilities or obligations; or
(3) any outside teaching employment with any other
educational institution during a period in which the employee
has an appointment with Florida Atlantic University, except
with written approval of the Dean.
Id. The Policy also imposes certain reporting
requirements upon faculty, including the following:
An employee who proposes to engage in outside activity shall
provide his or her supervisor a detailed written description
of the proposed activity. The report shall include where
applicable, the name of the employer or other recipient of
services; the funding source; the location where such
activity shall be performed; the nature and extent of the
activity; and any intended use of University facilities,
equipment, or services. A new report shall be submitted for
outside activity previously reported at the beginning of each
academic year for outside activity of a continuing nature and
whenever there is a significant change in an activity
(nature, extent, funding, etc.) The reporting provisions of
this section shall not apply to activities performed wholly
during a period in which the employee has no appointment with
the University. Any outside activity which falls under the
provisions of this Article and in which the employee is
currently engaged but has not previously reported, shall be
reported within sixty (60) days of the execution of this
Agreement and shall conform to the provisions of this
Id. at 132. Importantly for this case, the CBA
contains a mandatory grievance procedure that a faculty
member must use if the member has a grievance with any
portion of the CBA, including the disclosure Policy.
Id. at 133.
October of 2015, Plaintiff was completing an electronic
acknowledgment form that FAU had sent to him. DE 246 at 6.
That form required Plaintiff to check a box
“acknowledging [his] obligation to report outside
activities” as well as other things. Id.
Plaintiff refused to check the box. Id. Instead,
Plaintiff printed out a hard copy of the form and submitted
it to FAU without checking the box. Id.
October of 2015, an FAU supervisor ordered Plaintiff to
report his outside activities by completing and submitting a
conflict of interest form. See DE 248 at 5.
Plaintiff does not appear to dispute that he was ordered to
complete the conflict of interest form multiple times by his
supervisors. See DE 274 at 5-6. In lieu of
completing the form in the manner in which FAU required,
Plaintiff, in his own words, “asked his supervisors for
clarification about the scope and application of the
Policy” and he also required from FAU “a signed
statement asserting FAU's position that his personal
activities (media criticism, alternative journalism, and
blogging) did not fall within the definition of
‘conflict of interest'” under the Policy. DE
248 at 5.
November 10, 2015, Defendants issued a notice of discipline
to Plaintiff. Id. The notice required Plaintiff to
submit conflict of interest forms within forty-eight hours.
Id. On November 22, 2015, Plaintiff responded by
letter, informing Defendants that he had not received the
clarification that he had requested on the
“considerable confusion” created by FAU's
administration of the Policy. Id. On December 11,
2015, Defendants responded to Plaintiff's letter by
informing him that he had until 5:00 p.m. on December 15,
2015, to “completely and accurately fill out the
conflict of interest forms.” Id. at 7.
Plaintiff appears to admit that he did not submit the forms
by 5:00 p.m. on December 15, 2015. Id. (“Tracy
did not receive [the e-mail] until the evening of December
December 16, 2015, Defendants issued a notice of termination
to Plaintiff. Defendants' position was that because
Plaintiff had refused to fill out his conflict of interest
forms, Defendants could not ascertain whether Plaintiff was
in compliance with the Policy (pertaining to outside
activities) in the CBA. Id.
sometime during the month of November of 2015, Plaintiff
requested assistance from his union. DE 246 at 7.
Plaintiff's union hired an attorney for Plaintiff.
Id. at 8. After Plaintiff received his notice of
termination, Plaintiff was required to file a grievance
contesting his termination within ten days. Id.
Plaintiff's attorney negotiated for an extension for
additional time to grieve. See Id. The extension was
granted. Id. at 9. Plaintiff never filed a
grievance. Instead, Plaintiff filed this lawsuit on April 25,
Plaintiff filed this lawsuit against FAU, certain individual
Defendants at FAU, his union, and certain individual
Defendants at his union. During the pendency of this suit,
however, Plaintiff reached a settlement agreement with all
union Defendants. Only FAU and the FAU individual Defendants
remain. The individual Defendants are John Kelly, the FAU
President, Diane Alperin, an FAU Vice Provost, and Heather
Coltman, an FAU Dean. The following counts are before the
Court: a civil rights retaliation claim pertaining to
Plaintiff's right to free speech (Count I), a claim
alleging a conspiracy to interfere with Plaintiff's civil
rights (Count II), a facial constitutional challenge against
the Policy (Count III), an as-applied constitutional
challenge against the Policy (Count IV), a request for a
declaration on the constitutionality of the Policy (Count V),
and a breach of contract claim (Count VI).
SUMMARY JUDGMENT STANDARD
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The existence of a factual dispute is not
by itself sufficient grounds to defeat a motion for summary
judgment; rather, “the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A dispute is genuine if “a reasonable
trier of fact could return judgment for the non-moving
party.” Miccosukee Tribe of Indians of Fla. v.
United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(citing Anderson, 477 U.S. at 247-48). A fact is
material if “it would affect the outcome of the suit
under the governing law.” Id. (citing
Anderson, 477 U.S. at 247-48).
deciding a summary judgment motion, the Court views the facts
in the light most favorable to the non-moving party and draws
all reasonable inferences in that party's favor. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
The Court does not weigh conflicting evidence. See Skop
v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir.
2007). Thus, upon discovering a genuine dispute of material
fact, the Court must deny summary judgment. See id.
moving party bears the initial burden of showing the absence
of a genuine dispute of material fact. See Shiver v.
Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the
moving party satisfies this burden, “the nonmoving
party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.'”
Ray v. Equifax Info. Servs., LLC, 327 F. App'x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)). Instead, “[t]he non-moving party must make
a sufficient showing on each essential element of the case
for which he has the burden of proof.” Id.
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). Accordingly, the non-moving party must produce
evidence, going beyond the pleadings, to show that a
reasonable jury could find in favor of that party. See
Shiver, 549 F.3d at 1343.
Court addresses Plaintiff's Motion for Summary Judgment
and Defendants' Motions for Summary Judgment by
considering each count in turn. After analyzing each count,
the Court considers the individual Defendants' argument
that they should be dismissed from this case.
Plaintiff's Count I - First Amendment
Plaintiff to establish a prima facie case for his First
Amendment claim, he must show: (1) that his speech may be
fairly characterized as constituting speech on a matter of
public concern, (2) that Plaintiff's First Amendment
interests outweigh the interest of his employer in promoting
the efficiency of the public services it performs through its
employees, and (3) that Plaintiff's speech played a
substantial part in Defendants' decision to terminate
Plaintiff. If Plaintiff proves the foregoing, then (4) the
burden shifts to Defendants to prove that they would have
taken the same action against Plaintiff even in the absence
of any protected speech. Morgan v. Ford, 6 F.3d 750,
754 (11th Cir. 1993). The Court examines each element of
Characterization of Plaintiff's Speech
contends that his constitutionally-protected speech is his
blog postings. He characterizes his blogs as his
observations, opinions, thoughts and viewpoints on
government, the media, current events, history and politics.
DE 248 at 2. Specifically, Plaintiff blogged about events in
the national news media, including mass casualty events.
Id. Plaintiff contends that he blogged from home
during personal time on his personal computer. Id.
Private speech on matters of public concern is protected by
the First Amendment. Connick v. Myers, 461 U.S. 138
contest the characterization of Plaintiff's
speech. Defendants argue that Plaintiff's
blogs overlapped with his work for FAU and that Plaintiff
used FAU resources for his blog postings. DE 270 at 2.
Defendants, inter alia, point to similarities
between Plaintiff's courses and Plaintiff's blog;
Defendants therefore contest that Plaintiff blogged as a
private citizen and instead characterize Plaintiff's
speech as that of a public employee. See Id.
“Government employers, like private employers, need a
significant degree of control over their employees' words
and actions; without it, there would be little chance for the
efficient provision of public services.” Garcetti
v. Ceballos, 547 U.S. 410, 418 (2006).
Court concludes that each side has evidence supporting their
respective positions and, as a result, a dispute of material
fact precludes summary judgment on the issue of how
Plaintiff's speech should be characterized. Each
party's Motion for Summary Judgment is denied as to this
Balancing of Plaintiff's Speech with Defendants'
Interest in Promoting the Efficiency of the Services it
Performs through its Employees
respect to the balancing of Plaintiff's speech with
Defendants' interests, this is an issue only tangentially
briefed by all parties. For Plaintiff's part, Plaintiff
assumes (in a footnote) in a cursory fashion that Defendants
are estopped from raising any such argument. DE 275 at 9 n.3.
For Defendants' part, Defendants argue (also in a
footnote) that Plaintiff's speech must be balanced
against the Defendants' interest in “peacefully
fulfilling its educational mission.” DE 245 at 7 n.3.
The Court declines to grant any relief on this incomplete
record, and each parties' Motion for Summary Judgment is
denied as to this issue.
Speech must have Played a Substantial Part in Defendants'
Decision to Terminate Plaintiff
parties vigorously contest whether Plaintiff's speech in
his blog postings played a substantial part in causing
Defendants' decision to terminate Plaintiff. The
Defendants rely upon evidence in the record that calls into
question whether FAU's decision to terminate Plaintiff
was connected to his blog postings. For example, there were
approximately two years between Plaintiff's most
controversial blog posting-which pertained to Sandy Hook-and
Plaintiff's termination. See, e.g., id.
During that period of time, FAU permitted Plaintiff to blog
as long as he abided by FAU-required disclaimers. See
Id. Defendants have sworn testimony that the basis for
Plaintiff's termination was his willful refusal to comply
with FAU's disclosure Policy. See id.
on the other hand, emphasizes that while he was permitted to
blog during this two-year time period, FAU was under constant
public pressure to fire him. See DE 248 at 2-4.
Plaintiff argues that his controversial speech was not
isolated to a single point in time but rather, his speech
continued to affect Defendants long after his speech was
published. Plaintiff also relies upon evidence that FAU
officials were distressed and embarrassed over the content on
Plaintiff's blog. See id.
record facts relevant to this issue are intertwined with the
facts relevant to Plaintiff's evidence that
Defendants' reason for termination was pretextual-those
facts are discussed below. Because of the close relationship
between the facts supporting the third element-causation-and
the facts supporting pretext, the Court's ruling
pertaining to causation is included in its analysis
pertaining to pretext.
Burden to Prove that they Would have Taken the Same Action
Against Plaintiff even in the Absence of any Protected
central issue in this case is why Plaintiff was terminated.
Defendants contend that Plaintiff was terminated because he
willfully refused to comply with FAU's policy on the
disclosure of outside activities. There is evidence in the
record to support Defendants' position. Defendants issued
a notice of discipline to Plaintiff informing him that he was
required to comply with the Policy and that he had not
complied. DE 243 at 6. Prior to being terminated, Plaintiff
willfully refused on multiple occasions to comply with the
Policy as FAU required. Id. at 6-7. Plaintiff's
termination was officially premised on his refusal to comply
with the Policy. Id.
burden to refute Defendants' non-discriminatory reason
for his termination is substantial. Plaintiff must take
Defendant's reason “head on and rebut it” and
he cannot succeed by “simply quarreling with the wisdom
of that reason.” Alvarez v. Royal Atl. Dev.,
Inc., 610 F.3d 1253, 1265-66 (11th Cir. 2010). Plaintiff
must have evidence that Defendant's non-discriminatory
reason for firing him was pretextual. Id. at 1264.
Plaintiff may satisfy this burden by showing that
Defendants' reasons are not credible by demonstrating
“such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's
proffered legitimate reasons for its actions that a
reasonable factfinder could find them unworthy of
credence.” Id. at 1265. The Court examines
Plaintiff's evidence of pretext.
Plaintiff's blog postings were provocative is, in
Plaintiff's own words, “an understatement.”
DE 247 at 7. Plaintiff blogged that the Sandy Hook massacre
did not occur and that the families of the victims of that
massacre were “playing a role.” See id.;
DE 248 at 2-3. Plaintiff's comments resulted in national
attention and a backlash from the parents of the victims at
Sandy Hook. DE 248 at 2-6; DE 247 at 7. Parents also alleged,
through an op-ed in the Sun Sentinel, that Plaintiff had
harassed them by asking for proof in connection with the
massacre. DE 248 at 6. In the years following Plaintiff's
blog postings about Sandy Hook, public pressure still existed
on FAU to fire Plaintiff-the controversy surrounding
Plaintiff's blogs never completely
subsided. See Id. FAU met to discuss
Plaintiff's blogging and the “impact” of the
negative press. Id. at 2. Certain handwritten
minutes indicate that Plaintiff's speech was a
“black eye on all faculty” and that in the
context of considering Plaintiff's First Amendment rights
FAU needed to find “winning metaphors.” DE
250-10. The minutes also indicate that there should be
“no email on this.” Id. After Plaintiff
was terminated, an FAU dean circulated an e-mail that read
“for the record, [Plaintiff] was not fired because he
didn't report things.” DE 250-45.
Court is required to view Plaintiff's evidence in the
light most favorable to him in connection with
Defendants' Motion for Summary Judgment. Viewed in
Plaintiff's favor, the evidence outlined above
establishes that (i) Defendants had a powerful motivation to
fire Plaintiff and (ii) Defendants were planning to find a
way to do just that. Defendants' basis for terminating
Plaintiff-his failure to comply with the Policy-has also been
subjected to reasonable attack by other evidence. For
example, FAU's administration of the Policy was altered
after FAU reached a settlement with Plaintiff pertaining to
Plaintiff's use of a disclaimer on his blog. DE 248 at 4.
Perhaps, as Plaintiff contends, FAU altered its
administration of the Policy because its prior efforts to
censor Plaintiff had failed. Defendants arguably knew that
their implementation of the Policy would have the result of
resistance from Plaintiff. On September 4, 2015, FAU faculty
members held a meeting in which several faculty members
voiced concerns over the Policy being applied to
constitutionally protected speech. Id. at 5. Soon
after, Defendants enforced the Policy against the person who
arguably had the most controversial public speech at the
university-Plaintiff. Furthermore, notwithstanding
Plaintiff's constitutionally-based protests against
FAU's administration of the Policy, Defendants ultimately
elected not to accept Plaintiff's untimely effort at full
compliance. When these events are taken in their entirety, in
context, and are viewed in Plaintiff's favor, a
reasonable inference exists that Defendants altered and
enforced their administration of the Policy against Plaintiff
for the pretextual purpose of finding a way to retaliate
against Plaintiff's speech.
full examination of the record, the Court concludes that
Plaintiff has sufficient evidence to demonstrate “such
weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer's proffered legitimate
reasons for its actions that a reasonable factfinder could
find them unworthy of credence.” Defendants contest
many of the facts relied upon by the Plaintiff and there is
evidence to support Defendants' position that Plaintiff
was insubordinate. This juxtaposition of facts serves to
highlight the dispute of material fact that exists as to the
reason Plaintiff was terminated-a factual determination that
must be made by a jury. For the foregoing reasons, each
party's Motion for Summary Judgment is denied as to Count
I, and Count I survives for trial.
Plaintiff's Count II - Conspiracy
second count alleges that a conspiracy existed to terminate
Plaintiff from his tenured position. Under the
intra-corporate conspiracy doctrine, FAU employees cannot
conspire amongst themselves or with FAU. See Dickerson v.
Alachua Cty. Comm'n, 200 F.3d 761, 767 (11th Cir.