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Tracy v. Florida Atlantic University Board of Trustees

United States District Court, S.D. Florida

April 24, 2018

JAMES TRACY, Plaintiff,



         This matter is before the Court on Plaintiff's Motion for New Trial [DE 453] and Plaintiff's Renewed Motion for Judgment as a Matter of Law [DE 450]. The motions have been fully briefed. The Court has reviewed the briefing papers, the evidence at trial, and the entire record. For the reasons set forth below, both motions are denied.

         I. BACKGROUND[1]

         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 imposes certain conditions upon faculty members. One such condition of the article 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 article 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. 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. 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 (also called an outside activities form) multiple times by his supervisors. See DE 274 at 5-6.[2] 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 CBA. 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 CBA, together with related policies. 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 admits that he did not submit the forms by 5:00 p.m. on December 15, 2015. DE 467 at 112.

         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 outside activities / conflict of interest portions of 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. After extensive motion practice, this case was tried from November 29, 2017, to December 11, 2017. A single count was submitted to the jury: Plaintiff's First Amendment retaliation claim. The jury returned a verdict on December 12, 2017, finding that Plaintiff's termination was unrelated to Plaintiff's exercise of his First Amendment rights. DE 437. On January 8, 2018, Plaintiff filed a Renewed Motion for Judgment as a Matter of Law. On January 12, 2018, Plaintiff filed a Motion for New Trial.


         A new trial should not be granted “unless, at a minimum, the verdict is against the great-not merely the greater-weight of the evidence.” Pensacola Motor Sales, Inc. v. Eastern Shore Toyota, LLC., 684 F.3d 1211, 1231 (11th Cir. 2012). Although the Court is permitted to weigh the evidence, it must be with this standard in mind. See Watts v. Great Atlantic & Pacific Tea Co., Inc., 842 F.2d 307, 310 (11th Cir. 1988) (“In ruling on a motion for new trial, the trial judge is permitted to weigh the evidence, but to grant the motion he must find the verdict contrary to the great, not merely the greater, weight of the evidence.”).

         In assessing evidentiary rulings already made by this Court, the question is whether the exclusion of the evidence affected Plaintiff's substantial rights. “Error in the admission or exclusion of evidence is harmless if it does not affect the substantial rights of the parties.” Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984). Plaintiff bears the burden of showing that the decision(s) affected his substantial rights. Id.

         Before the Court analyzes the merits of Plaintiff's arguments, the Court addresses one recurring issue in the motions before the Court. Plaintiff cites multiple times to the Court's Order on Summary Judgment and the Court's oral ruling denying Defendants' motion for judgment as a matter of law in support of his pending motions. Plaintiff's citations and quotations to the Court's prior orders reference the Court's discussion of the evidence. That is improper argument. The Court was required, in the cited orders, to view the evidence in the light most favorable to Plaintiff. With respect to Plaintiff's Motion for Judgment as a Matter of Law, the Court is required to view the evidence in the light most favorable to Defendants. With respect to Plaintiff's Motion for New Trial, the Court is required to independently weigh the evidence introduced at trial-not refer back to the Court's analysis of evidence viewed in the light most favorable to a specific party.

         Plaintiff raises five separate arguments: (A) that the jury's verdict was not supported by the evidence, (B) that this Court erred in excluding a certain audio recording, (C) that this Court erred in excluding certain third-party letters, (D) that this Court should enter judgment as a matter of law in Plaintiff's favor, and (E) that this Court should reconsider its prior Order on Summary Judgment. Each argument is considered in turn.

         A. The Jury's Verdict Was Supported by the Evidence at Trial

         The central premise in Plaintiff's Motion for New Trial is that the jury's verdict was against the great weight of the evidence. This contention is without merit. Instead, the Court concludes that the great weight of the evidence at trial was in favor of Defendants. The jury was entitled to disregard and discredit all of Plaintiff's evidence at trial, provided that there was an evidentiary basis on which to do so. And there was. Plaintiff's evidence was called into question in every possible way at trial. For the purpose of explaining why Plaintiff's premise is rejected by this Court, and for the purpose of demonstrating why the jury's decision was not against the great weight of the evidence, the Court sets forth below a portion of the evidence introduced at trial that favored Defendants.

         First, evidence was repeatedly introduced that Plaintiff was at all times permitted to blog without any censorship by Defendants:

Q. Did you place any limits on Professor Tracy's speech or his research?
A. Never.
Q. You didn't tell him to stop blogging and cut it off, none of that stuff?
A. No. He had the freedom to do that.

E.g., DE 470 at 120. The jury was entitled to credit this testimony. Similarly, Defendants repeatedly elicited testimony that if Plaintiff had complied with his obligation to complete all necessary university forms, he would have been permitted to keep his job:

Q. If Dr. Tracy had submitted the fully completed forms, would you have made the decision to send him the notice of proposed termination?
A. I would not have sent him that notice, correct.

DE 469 at 36. The jury was entitled to credit this testimony. Moreover, the period of time running from Plaintiff's most controversial blog posts about Sandy Hook to the time of Plaintiff's termination was three years-this time period calls into question the entire theory of Plaintiff's case. While Plaintiff contends that Defendants essentially bided their time, and were waiting for an opening to terminate Plaintiff because they disliked Plaintiff's blog speech, evidence was introduced at trial that called Plaintiff's theory into question.[3] By way of example, another professor at FAU caused a controversy that resulted in “massive media attention, ” because of an event entitled “Stomp on Jesus.” DE 470 at 135. That controversy resulted in a police presence on campus. DE 470 at 172. Yet, that professor was able to keep his job at FAU-there was no censorship. DE 470 at 135. Defendants' position throughout trial was that Plaintiff was terminated solely for his insubordination in refusing to fill out outside activities forms, and Plaintiff failed to produce any evidence of an employee at FAU who refused[4] to fill out the form (when asked to do so) and was treated differently. Instead, the evidence showed that another professor who, like Plaintiff, did not fill out the necessary forms and who received compensation from outside activities received a notice of termination. DE 469 at 22-23; Defendant's Exhibit 206.[5] Finally, Plaintiff's own witness, Professor Robe, admitted that if he were asked to fill out outside activity forms he would do so lest he be considered insubordinate. DE 470 at 224.

         Second, a large amount of evidence was introduced at trial that showed Plaintiff's refusal to fill out FAU forms was insubordinate. Plaintiff was advised to fill out the forms by virtually everyone-even his union representatives:

Q. What did you advise Professor Tracy once you read this letter?
A. I think I said something to the effect that -- I think I said something like sign it or -- I said, even if you say under duress, sign it, say you did it under duress to do it.
Q. You told him to submit the forms?
A. I believe so, yes, that is the best of my recollection. I am sure you have the emails that say that.
Q. Why did you recommend that Dr. Tracy fill out those outside activity forms in November 2015?
A. I was afraid he was going to get fired.
Q. And were you advising Dr. Tracy to try to help him keep his job?
A. Yes.

DE 471 at 86. Plaintiff's union representatives also advised Plaintiff that the insubordination charge was valid:

Q. And so you told Professor Tracy that the termination was likely valid, right?
A. Yes, I think that may have been my words.
Q. What was the reasoning, if any, behind that advice?
A. Well, one, every indication that I'd had from him prior to that was that they had a very good case against him on insubordination.

         Video Deposition of Mr. Michael Moats, 214:17. Evidence showed that Plaintiff privately admitted to others that his refusal to fill out the forms was a mistake-that he thought he would be protected from termination because of his tenured status:

Q. Based on your personal experience and your interactions with Dr. Tracy, did he seem to appreciate the gravity of this notice of proposed discipline and act in his own best interest?
A. I know when he was terminated, and that was actually the first time that I actually talked to him, most of the other communications were via email, I said, you know, if you thought the university was after you, why did you make it so easy for them? And he said -- I was referring to not filling out the forms, and he said, I thought tenure would protect me.

DE 471 at 88. Additionally:

Q. [W]hen in 2015 did you go back and look at [Plaintiff's file]?
A. After [Plaintiff] called me and said, ‘I think I fucked up.' Video Deposition of Michael Moats, 90:14. Evidence in the form of an e-mail from Plaintiff showed that Plaintiff knew his refusal to fill out the forms was insubordinate insofar as he called the insubordination charge against him “cut-and-dry” as follows:

         So Doug, yes, I am interested In going through the necessary grievance procedure and would appreciate your help. I don't know if the union will support the case to arbitration, because in terms of the specific description of "insubordination" and my actions it's cut-and-dry, the admin is like a mule regardless of how irrational its stances may be, and the union might not think we can prevail. Then again it could be resolved before arbitration. In any event, Defendants' Exhibit 111. Finally, the evidence also showed that Plaintiff was consistently told by others that any grievance of his proposed termination was unwinnable because the insubordination charge against him was so strong. See DE 471 at 96-105; Defendants' Exhibit 48.

         Third, Plaintiff's contention at trial was that he did not fill out FAU forms because those forms were confusing, but Defendants introduced substantial evidence to call into question Plaintiff's position. As an initial matter, it appears that Plaintiff, and Plaintiff alone, completely refused to fill out the forms. It therefore follows that every other faculty member or, at the very least, every other faculty member who was asked to fill out the forms, did so. A logical inference that the jury was entitled to make, then, was: “If every faculty member fills out the forms, how can the forms be so confusing that Plaintiff could not possibly fill them out?” Similarly, Plaintiff ultimately did fill out the forms, albeit after the deadline imposed by FAU, which logically led to a related question: “If Plaintiff ultimately filled out the forms, how was it impossible for him to fill out the forms earlier?” The reasonable and logical inference, then, that the jury was entitled to make, was that Plaintiff simply chose not to fill out the forms for his own purposes-to not even make an attempt. Defendants introduced evidence that showed that Plaintiff had an ulterior motive in choosing not to fill out the forms. Specifically, Plaintiff privately e-mailed a friend, using a non-university e-mail account, in which he said the following:

hours per week. Nor was I ever asked to do so by my chair. Although I mentioned that I contribute to GR I don't plan on using those pieces for promotion because they're not peer reviewed. Yet, they may inform some of my research and teaching. So I'm uncertain whether I should fill out such a form for the activity ex post facto, especially since it might give them reason to take disciplinary action as my remarks may no longer be regarded ...

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