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Tracy v. Florida Atlantic University Board of Trustees

United States District Court, S.D. Florida

October 31, 2017

JAMES TRACY, Plaintiff,



         This is 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.

         Before 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.


         The 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 section, infra.

         Plaintiff, 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 id.

         In 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.

         In 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.

         After 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 Article.

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.

         In 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.

         Also in 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.[1] 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.

         On 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 15, 2015.”).

         On 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.

         Earlier, 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, 2016.

         Initially, 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 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).

         In 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.

         The 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.

         III. ANALYSIS

         The 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.

         A. Plaintiff's Count I - First Amendment Retaliation

         For 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 Plaintiff's claim.

         The Characterization of Plaintiff's Speech

         Plaintiff 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 (1983).

         Defendants contest the characterization of Plaintiff's speech.[2] 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).

         The 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 issue.

         The Balancing of Plaintiff's Speech with Defendants' Interest in Promoting the Efficiency of the Services it Performs through its Employees

         With 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.

         Plaintiff's Speech must have Played a Substantial Part in Defendants' Decision to Terminate Plaintiff

         The 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.

         Plaintiff, 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.

         The 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.

         Defendants' Burden to Prove that they Would have Taken the Same Action Against Plaintiff even in the Absence of any Protected Speech

         The 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.

         Plaintiff's 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.

         That 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.[3] 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.[4] 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.

         The 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.

         After a 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.[5]

         B. Plaintiff's Count II - Conspiracy

         Plaintiff's 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. 2000). ...

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