United States District Court, S.D. Florida
ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL
AND DENYING PLAINTIFF'S RENEWED MOTION FOR JUDGMENT AS A
MATTER OF LAW
L ROSENBERG UNITED STATES DISTRICT JUDGE.
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.
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
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
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.
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 (also called an
outside activities 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 CBA. 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 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.
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.
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. 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.
ANALYSIS AND DISCUSSION
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
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.
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.
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.
The Jury's Verdict Was Supported by the Evidence at
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.
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?
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. 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 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. 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.
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
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?
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
A. Well, one, every indication that I'd had from him
prior to that was that they had a very good case against him
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
DE 471 at 88. Additionally:
Q. [W]hen in 2015 did you go back and look at
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:
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.
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 ...