Wednesday, February 22, 2017

Judge denies motion to dismiss James Tracy's suit against Florida Atlantic University



[Editor's note: For background, see "James Tracy: How Questioning the Sandy Hook Official Narrative cost me My Tenured Professorship". In this instance, a modicum of justice may prevail.]


UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:16-CV-80655-ROSENBERG/HOPKINS 

JAMES TRACY, Plaintiff,

v.

FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES a/k/a FLORIDA ATLANTIC UNIVERSITY, et al.,
Defendants. __________________________________/


ORDER DENYING DEFENDANTS’ MOTION TO DISMISS

This cause is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint [DE 97]. The Motion has been fully briefed. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

This is a case about the First Amendment right to free speech. The setting for this case is a college campus, which is certainly a familiar setting for First Amendment jurisprudence. The story of this case is a story of two competing narratives, both of which are present in the Second Amended Complaint before this Court. The first such narrative, brought by Plaintiff, is that he, a professor, was terminated for exercising his right to free speech in a personal, off-campus blog. The second narrative belongs to Defendants and, according to them, Plaintiff was terminated for consistently and willfully refusing to comply with internal administrative requirements regarding the reporting of outside activities. The crux of this case is that Plaintiff contends that the Defendants’ justification for termination was a pretext—an attempt to manufacture a reason to terminate Plaintiff due to Plaintiff’s controversial exercise of free speech in the area of mass shootings and related conspiracies on his personal blog.

In a prior complaint, the precise contours of Plaintiff’s allegations of pretext were not clear. After the Court held a hearing and heard argument on a motion to dismiss, the Court dismissed Plaintiff’s former complaint on multiple grounds. The primary focus of the Court’s decision was that Plaintiff needed to amend his complaint to provide greater clarity as to: (i) what specific constitutional violation he was alleged to have suffered, (ii) whom he was suing, and (iii) the precise legal basis for each of Plaintiff’s claims for relief. Plaintiff responded to the Court’s order by filing the Second Amended Complaint and, soon after, Defendants filed the Motion to Dismiss before this Court.

Plaintiff’s Second Amended Complaint contains the following counts:
  •   Count I – Retaliation in Violation of Right to Free Speech, against Defendant FAU and Defendants Kelly, Alperin, and Coltman.
  •   Count II – Conspiracy to Interfere with Plaintiff’s Civil Rights, against Defendants Alperin, Coltman, Kelly, Zoeller, Moats,UFF, FEA, and FAU. 
  •   Count III – Facial Challenge to FAU’s Conflict of Interest Policy, against Defendant FAU. 
  •   Count IV – As-Applied Challenge to Plaintiff’s Right to Free Speech, against Defendant FAU. 
  •   Count V – Declaratory Judgment and Injunction, against Defendant FAU.
  •  Count VI – State Law Breach of Contract, against Defendant FAU.

  • Defendants Kelly, Alperin, and Coltman are officials at Florida Atlantic University.Defendants Zoeller and Moats are representatives of Plaintiff’s former union. Defendants UFF (the United Faculty of Florida) and FEA (the Florida Education Association) are the unions Defendants Zoeller and Moats represent.
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II. LEGAL STANDARD APPLICABLE TO A MOTION TO DISMISS

To adequately plead a claim for relief, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Under Rule 12(b)(6), a motion to dismiss should be granted only if the plaintiff is unable to articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). When determining whether a claim has facial plausibility, “a court must view a complaint in the light most favorable to the plaintiff and accept all of the plaintiff’s well-pleaded facts as true.” Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1066 (11th Cir. 2007).

However, the court need not take allegations as true if they are merely “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. “Mere labels and conclusions or a formulaic recitation of the elements of a cause of action will not do, and a plaintiff cannot rely on naked assertions devoid of further factual enhancement.” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). “[I]f allegations are indeed more conclusory than factual, then the court does not have to assume their truth.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012).


III. ANALYSIS

Defendants argue that Plaintiff’s Second Amended Complaint should be dismissed for the following reasons: (1) the Second Amended Complaint fails to allege sufficient facts regarding Plaintiff’s claim that Defendant Kelly (an FAU official) retaliated against Plaintiff due to Plaintiff’s exercise of his constitutional rights, (2) the Second Amended Complaint fails to allege sufficient facts regarding Plaintiff’s claims that there was a conspiracy to deprive him of his constitutional rights, (3) Plaintiff has not pled that he was denied an underlying constitutional right, (4) Plaintiff’s allegations of conspiracy are insufficient under the intracorporate conspiracy doctrine, (5) Count III is duplicative of Count IV, and (6) Count IV is “not ripe” because Plaintiff failed to exhaust his administrative remedies. Each argument is addressed in turn.

1. The Second Amended Complaint’s Allegations Against Defendant Kelly (Count I)

Defendants argue that Plaintiff has failed to allege sufficient facts regarding Plaintiff’s claim that Defendant Kelly retaliated against Plaintiff in response to Plaintiff’s exercise of his First Amendment right to free speech (Plaintiff’s blog postings on mass shootings and related conspiracies). In the Court’s prior order dismissing Plaintiff’s complaint, the Court stated: “Plaintiff must clearly allege the basis for his retaliation claim.” DE 92 at 14. The basis for the Court’s conclusion was that it was unclear whether Plaintiff’s retaliation claim was premised on Plaintiff’s blog postings or on some other basis. Plaintiff responded to the Court’s prior order by significantly amending and clarifying his retaliation claim, yet Defendants still challenge the sufficiency of Plaintiff’s claim under the Federal Rules of Civil Procedure. The Court sets forth below the allegations Plaintiff has made against Defendant Kelly:

Defendant Kelly serves “at the pleasure of” the Defendant University’s Board of Trustees and is held “responsible for the University’s operation and management, performance, its fiscal accountability, and its compliance with federal and state laws, rules and regulations.” Sec. Am. Compl. ¶ 12.
Paragraph 13 of the Second Amended Complaint sets forth Defendant Kelly’s express responsibilities and duties at the Defendant University, including:

 “To be responsible for the organization, operation, and administration of the University . . . .”; “To execute all documents on behalf of the University and the BOT consistent with law . . . .”;
 “To serve as the principal liaison officer and official contact between the BOT and the faculty, staff and students of the university.”; “To establish and implement policies and procedures to recruit, appoint, transfer, promote, compensate, evaluate, reward, demote, discipline, and remove personnel . . . .”; and
 “To ensure [FAU’s] compliance with federal and state laws, rules, regulations, and other requirements which are applicable to the University.”
See Sec. Am. Compl. ¶ 13. (emphasis added).

Defendant Kelly is “President and Chief Executive Officer of Florida Atlantic University, designated by the Defendant University’s Board of Trustees. Defendant Kelly supervised, facilitated, recommended and/or approved discipline and termination of Professor Tracy in retaliation . . . for engaging in his constitutionally protected speech and expression on his personal blog.” Sec. Am. Compl. ¶ 14.

“In November and December 2015, Defendants Alperin, Coltman, and other senior FAU officials and representatives, including FAU General Counsel Larry Glick . . . planned to discipline Professor Tracy in retaliation for his personal blogging . . . under the supervision and with the approval of Defendant Kelly . . . .” Sec. Am. Compl. ¶ 91.

Plaintiff’s “constitutionally protected speech, including his uncompensated opinions and viewpoints expressed on his personal blog, played a substantial part and was a motivating factor” in the decision of Defendant Kelly to terminate Plaintiff. Sec. Am. Compl. ¶ 120.

Plaintiff’s “constitutionally protected speech played a substantial part and was a motivating factor” in the decision of Defendant Kelly to terminate Plaintiff. Sec. Am. Compl. ¶ 126.

Defendant Kelly “acted unconstitutionally and unlawfully in disciplining and terminating Professor Tracy in order to restrict his, and other similarly situated faculty member’s expression and freedom of speech.” Sec. Am. Compl. ¶ 127.

Defendant Kelly “had no legitimate government interest in disciplining or terminating Professor Tracy for his constitutionally protected personal blogging and online speech and expression.” Sec. Am. Compl. ¶ 128.

The retaliatory actions of Defendant Kelly “in response to Professor Tracy’s constitutionally protected speech, have had a chilling effect that acts as a deterrent to free speech.” Sec. Am. Compl. ¶ 130.

Defendant Kelly “acted intentionally, knowingly, willfully, wantonly, and in reckless disregard of Professor Tracy’s federally-protected constitutional rights and violated clearly established constitutional rights of which all reasonable college administrators and staff should have known . . . .” Sec. Am. Compl. ¶ 131.

Defendant Kelly “and other officials and representatives at the Defendant University who aided and abetted the unlawful discipline and termination of Professor Tracy acted intentionally, knowingly, willfully, wantonly, and in reckless disregard of Professor Tracy’s federally-protected constitutional rights, and without regard to the significant emotional and reputational damage such actions would cause.” Sec. Am. Compl. ¶ 132.

The Court concludes that the Plaintiff has not pled mere “labels and conclusions or a formulaic recitation of the elements of a cause of action.” Viewing all inferences in Plaintiff’s favor, as the Court must at this state of the proceedings, the inference from the allegations in the Second Amended Complaint is that Defendant Kelly was personally (and not vicariously) involved in a retaliatory violation of Plaintiff’s First Amendment rights. As a result, Defendant Kelly is sufficiently on notice of the claim against him such that he is able to answer that claim. For this reason, Defendants’ Motion to Dismiss is denied as to Count I.

2. The Second Amended Complaint’s Allegations Against Defendants Zoeller, Moats, Alperin, Coltman, and Kelly (Count II)

Just as with Count I, Defendants argue that Plaintiff has failed to allege sufficient facts regarding the Union Defendants (Zoeller and Moats) and the FAU Defendants (Alperin, Coltman, and Kelly) in connection with Plaintiff’s conspiracy count, Count II. In the Court’s prior order dismissing Plaintiff’s complaint, the Court required Plaintiff to amend his complaint to “plead his conspiracy counts with greater clarity as to who, what, where, when, and why.” DE 92 at 18. The Court again notes that it must view all allegations in the Second Amended Complaint in the light most favorable to Plaintiff, and it is in this light the Court sets forth below Plaintiff’s relevant allegations:

“In January 2013, Defendants Coltman, Alperin, and other senior FAU officials and representatives, including FAU General Counsel Larry Glick, “began planning how to use the public controversy surrounding Professor Tracy’s blog to not only discipline Professor Tracy for his blogging, but also to undermine FAU faculty union membership and representation.” Sec. Am. Compl. ¶ 50 See also Exhibit “AK”.

Defendant Coltman, Defendant Alperin and other senior officials and representatives of the Defendant University, including former FAU President Mary Jane Saunders and FAU General Counsel Glick began a coordinated effort to monitor Plaintiff’s blog, and “find winning metaphors” to overcome the First Amendment in “ethically” disciplining Plaintiff for his personal blogging. Sec. Am. Compl. ¶ 49, 53 See Exhibit “AK”.

Defendants Coltman, Alperin, FAU General Counsel Glick and other senior FAU officials and representatives, were directed not to communicate by e- mail, which could be discovered through public records requests. They also agreed to monitor and evaluate the personal blogging of Professor Tracy (“JT”), and to “centrally handle” the controversy surrounding the blog. Sec. Am. Compl. ¶ 53.

“In November and December 2015, Defendants Alperin, Coltman, and other senior FAU officials and representatives, including FAU General Counsel Larry Glick, once again planned to discipline Professor Tracy in retaliation for his personal blogging, this time under the supervision and with the approval of Defendant Kelly. Upon information and belief, in furtherance of their unlawful objectives, FAU’s General Counsel Glick met with Defendant Zoeller and reached an understanding and agreement that Defendants UFF and FEA would not contest the discipline and termination of Professor Tracy.” Sec. Am. Compl. ¶ 91.

“In furtherance of the conspiracy, Defendants Alperin, Coltman and FAU General Counsel Glick internally labeled Professor Tracy the “poster child” to “quit UFF membership”, and planned to use the controversy surrounding his personal blogging to undermine Professor Tracy’s representation by Defendants UFF and FEA.” Sec. Am. Compl. ¶ 145. See also Exhibit “AK”.

“In furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, and in retaliation for Professor Tracy’s personal blogging, the Defendant University, through Defendant Alperin canceled Professor Tracy’s course, “Media, War and Crisis” and reassigned Professor Tracy to an undergraduate course he had not previously taught, at times of the day that conflicted with his child care schedule.” Sec. Am. Compl. ¶ 146

“After initial efforts to discipline Professor Tracy for his personal blogging failed in 2013, Defendants Alperin and Coltman once again, in furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, attempted to unlawfully discipline Professor Tracy for his personal blogging in November and December of 2015.” Sec. Am. Compl. ¶ 147.

“Defendant Kelly personally supervised and approved FAU officials and representatives efforts in 2015 to discipline and dismiss Professor Tracy in retaliation for his personal blogging, with acknowledgement and approval of the Chairman of the Defendant University’s Board of Trustees.” Sec. Am. Compl. ¶ 148.

“In furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, in November and December of 2015, including December 17, 2015, Defendants Zoeller, individually and on behalf of the Defendants UFF and FEA, met with FAU General Counsel Larry Glick, acting on behalf of the Defendant University and Defendants Kelly, Alperin and Coltman. During these meetings, which occurred in person at FAU’s campus, an understanding and agreement was reached to sabotage Professor Tracy’s defense against FAU’s unlawful discipline, and to secure Professor Tracy’s termination or resignation in lieu of termination.” Sec. Am. Compl. ¶ 149.

“Although Defendant Moats and Defendants UFF and FEA previously advised and instructed Professor Tracy not to submit personal blogging to the Defendant University for approval or restriction when faced with identical unlawful directives and threats of discipline for his personal blogging, in 2015, in furtherance of the conspiracy, Defendants Moats and Defendants UFF and FEA about-faced Professor Tracy and aided and abetted Professor Tracy’s unlawful discipline and termination for his personal blogging. Defendant Moats and Defendants UFF and FEA agreed not to file a grievance or respond to the Defendant University’s Notices of Discipline on Professor Tracy’s behalf, while actively deceiving Professor Tracy into believing that a timely response and grievance would be filed by Defendants UFF and FEA.” Sec. Am. Compl. ¶ 150.

“In furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, Defendants Kelly, Alperin, Zoeller and other officials and representatives of the Defendant University and Defendants UFF and FEA, disregarded and dismissed multiple faculty complaints and requests for FAU officials to cease and desist infringing upon constitutionally protected faculty speech and expression.” Sec. Am. Compl. ¶ 151.

“In October, November and December of 2015, and in furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, Defendants Kelly, Alperin, Zoeller, Moats and other officials and representatives of the Defendant University and Defendants UFF and FEA ignored Professor Tracy’s complaints that his uncompensated, constitutionally protected personal blogging could not be subjected to restriction by the Defendant University.” Sec. Am. Compl. ¶ 152.

“In November 2015, in furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, Defendant Coltman demanded Professor Tracy submit four (4) years of personal blogging to FAU officials for evaluation.” Sec. Am. Compl. ¶ 153.

“In response to and in support of Defendant Coltman’s demands, and in furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, Defendants Zoeller and Moats coerced Professor Tracy into submitting four (4) years of constitutionally protected blogging to Defendant Coltman and the Defendant University.” Sec. Am. Compl. ¶ 154.

“In furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, in 2015, Defendants Alperin, Coltman, Kelly and other senior administrative officials and representatives of the Defendant University, including FAU General Counsel Glick, acted unconstitutionally and unlawfully in disciplining Professor Tracy in retaliation for his personal blogging.” Sec. Am. Compl. ¶ 155.

“In furtherance of the conspiracy to interfere with Professor Tracys civil rights, Defendants Zoeller, Defendant Moats and officials and/or representatives of Defendants UFF and FEA purposefully failed to file a grievance or contest the Defendant University’s retaliatory discipline of Professor Tracy for his personal blogging.” Sec. Am. Compl. ¶ 156.

“In furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, in 2015, Defendants Alperin, Coltman, Kelly and the Defendant University, acted unconstitutionally and unlawfully in issuing FAU’s Notice of Intent to Terminate Professor Tracy in retaliation for his personal blogging.” Sec. Am. Compl. ¶ 157.

“In furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, Defendant Zoeller and Defendant Moats, and other representatives of Defendants UFF and FEA purposefully failed to respond or grieve FAU’s Notice of Intent to Terminate, as promised to Professor Tracy, which could have deferred and prevented Professor Tracy’s termination.” Sec. Am. Compl. ¶ 158.

“In furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, Defendant Moats and Defendant Zoeller misadvised and attempted to mislead Professor Tracy into believing the unlawful and unconstitutional discipline by FAU was “valid” and lawful.” Sec. Am. Compl. ¶ 159. See also Exhibits “AA” & “AC”.

“In December 2015, in furtherance of the conspiracy to interfere with Professor Tracy’s civil rights, Defendants Moats and Defendant Zoeller also repeatedly instructed Professor Tracy not to exercise his constitutional rights, including his freedom of speech and expression.” Sec. Am. Compl. ¶ 160.

“In furtherance of the conspiracy, the Union Defendants, including Defendants Moats, Defendant Zoeller, and other representatives of the Defendants UFF and FEA attempted to pressure and coerce Professor Tracy into resigning from his tenured position.” Sec. Am. Compl. ¶ 161.

“In furtherance of the conspiracy, the Union Defendants, including Defendants Moats, Defendant Zoeller, and other representatives of the Defendants UFF and FEA attempted to discourage Professor Tracy from taking any legal action against the Defendant University, falsely claiming that any challenge to his termination would be unsuccessful.” Sec. Am. Compl. ¶ 162.

“Willful failure to file a timely response or grievance by representatives and agents of Defendants UFF and FEA, including but not limited to DefendantZoeller and Moats resulted in Professor Tracy’s discipline and termination by the Defendant University.” Sec. Am. Compl. ¶ 163.

The Court concludes that Plaintiff’s Second Amended Complaint satisfies federal pleading standards and does not amount to mere “labels and conclusions or a formulaic recitation of the elements of a cause of action.” There is sufficient factual content in the Second Amended Complaint as to who, what, where, when, and why such that Defendants can answer the claim of conspiracy to violate Plaintiff’s constitutional rights. With respect to these arguments, Defendants’ Motion to Dismiss is denied as to Count II.


3. Plaintiff’s Allegation that he was Denied a Constitutional Right (Count II)

Defendants raise the argument in their motion that Plaintiff has failed to allege that he was denied a constitutional right stemming from his allegations of conspiracy because “this Court has already determined that Plaintiff was afforded due process with respect to his termination.” DE 97 at 13. 

Defendants restate their argument in their reply in arguing that, “[A]s this Court ruled that Plaintiff was not denied his right to procedural due process, and Plaintiff’s only allegations stated with any particularity reflects that [Defendants] alleged conspiracy to deny him of his procedural due rights, Plaintiff cannot state a claim for conspiracy.” DE 104 at 6. Defendants’ premise is therefore that 

Plaintiff has only properly alleged a conspiracy to deprive him of procedural due process. The Court does not agree. It is true that the Court previously determined that Plaintiff’s claim for denial of procedural due process failed as a matter of law because Plaintiff was never denied procedural due process— he simply did not elect to avail himself of procedural due process. DE 92 at 16. But, that determination did not address whether Plaintiff suffered a constitutional injury that resulted from an alleged conspiracy to inflict such an injury. In fact, the Court even noted in its prior 11 order that “[T]he Court hereby rejects Defendants’ argument that Plaintiff cannot show his exercise of speech was adversely affected by his termination” by citing to Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005), which held that the proper test to determine whether a plaintiff suffers an adverse action, or a constitutional injury, is whether that action (here termination) would likely deter a person of ordinary firmness from the exercise of his First Amendment rights. Id. at 14. The Court finds that Plaintiff has alleged a conspiracy to deprive him of his First Amendment right to free speech, in accordance with federal pleading standards, for all of the reasons set forth above in section 2 and below in section 6. Defendants’ Motion to Dismiss is denied as to Count II as to any argument pertaining to procedural due process.

4. Plaintiff’s Allegations and the Intracorporate Conspiracy Doctrine (Count II)

Defendants argue that Plaintiff’s Second Amended Complaint fails under the intracorporate conspiracy doctrine. That doctrine holds that a corporation (or a public entity) cannot conspire with itself. Dickerson v. Alachua Cnty., 200 F.3d 761, 767 (11th Cir. 2000); see also Grider v. City of Auburn, 618 F.3d 1240, 1261 (11th Cir. 2010) (applying the doctrine to public entities). That is not Plaintiff’s allegation. Plaintiff’s allegation is that officials at a public entity conspired with union representatives to jointly deprive Plaintiff of his constitutional rights—the alleged conspiracy extends beyond Defendant FAU and encompasses representatives of an independent union3. For that reason, Defendants’ arguments under the intracorporate conspiracy doctrine are rejected, and Defendants’ Motion to Dismiss is denied as to Count II as to this ground.

5. The Relief Sought by Plaintiff as to Defendant FAU’s Policies (Count III and Count IV)

Defendants argue that Count III is duplicative of Count IV. The allegations in Count III are that a certain FAU policy (requiring disclosure of outside activities) is unconstitutional on its face. The allegations in Count IV are that the policy was applied to Plaintiff in an unconstitutional way.A plaintiff is permitted to plead causes of action in the alternative. See Fed. R. Civ. P. 8(d)(2); see also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805 (1999). Plaintiff’s express intent is to plead Count III and Count IV in the alternative. DE 102 at 16. For this reason, Defendants’ Motion to Dismiss is denied as to Count III and Count IV on these grounds.


6. Plaintiff’s Requirement to Exhaust Administrative Remedies (Count IV)

Defendants argue that Plaintiff cannot allege that a policy was applied to him in an unconstitutional way because, by his own allegations, Plaintiff did not comply with that policy. Defendants’ argument is targeted against Plaintiff’s as-applied challenge, Count IV. Unlike a facial constitutionality challenge, which is “purely legal [and] presumptively ripe for judicial review,” an as-applied constitutionality challenge addresses whether a law or rule is “unconstitutional on the facts of a particular case or party” and, as a result, “it necessarily requires the development of a factual record for the court to consider.” Harris v. Mexican Speciality Goods, Inc., 564 F. 3d 1301 (11th Cir. 200). 

Viewing all inferences in the Second Amended Complaint in the light most favorable to Plaintiff, the Court does not conclude, at this stage in the proceedings, that Plaintiff’s failure to exhaust administrative remedies means that Defendants’ policies could not have been applied to him in an unconstitutional way. The gravamen of Plaintiff’s Second Amended Complaint is that actions were taken against him, in a conspiracy, prior to his opportunity to exercise administrative remedies and that he received deceptive advice pertaining to his right to utilize administrative procedures. In light of the foregoing, a factual record is required to evaluate Count IV and Defendants’ Motion to Dismiss is denied as to that count.

Plaintiff has clarified that Count IV is intended as an as-applied challenge to FAU’s policy, not as a facial challenge to that policy (which is encompassed in Count III). DE 102 at 16 (“[T]he allegations of Count IV, detail exactly how the Policy was applied by the Defendant University to Plaintiff and his uncompensated personal blogging. See also Sec. Am. Compl. ¶ 211, 213. These allegations, read in the light most favorable to Plaintiff, draw the reasonable inference that the Policy was unconstitutional as-applied to Plaintiff, resulting in injury that can in fact be remedied by the Court.”).


IV. CONCLUSION AND RULING

For all of the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Second Amended Complaint satisfies federal pleading standards and Defendants’ Motion to Dismiss [DE 97] is DENIED. Defendants shall answer Plaintiff’s Amended Complaint within seven (7) days of the date of rendition of this Order.

DONE and ORDERED in Chambers, Fort Pierce, Florida, this 21st day of February, 2017.
_______________________________ ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to Counsel of Record
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40 comments:

  1. The Judge appears to have understood the legal predicament with which he is presented in a way that would be able to be ruled upon in a clear and definitive manner, in my opinion. I hope Dr Tracy is in a position to move forward in terms of resources legal and financial. I hope to see a clear positive outcome of the ensuing Court proceedings - one that will cause the future Academic / Institution relationships to be altered fundamentally and forever so-to-speak. This will be, if it is as I hope a profound disturbance to the academic system and will cause vast and catastrophic disruptions in the operation of most Institutions similar to the one from which I retired/was retrenched (think about the deception implied and how such trickery would no longer be possible).
    A seminal case IMO.

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  2. It is instructive to read through the legal language in this case and other similar cases to realize that there exist many legal details which will be brought to bear if and when the administrators decide to "get" some professor out of their sight using lawyers, but virtually none of these legal cases or details were disclosed to any of the roughly 1000 FAU professors at the time of their employment or afterward. In other words this omission is a form of deception or fraud. Also the conspiracy of the administrators and Unions is totally improper and should be a criminal offense. After all what is the point of having a Union if they are secretly in bed with the already corrupt administration of this so called University?

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  3. This case will likely be in the courts a long long time. If FAU loses they will most certainly appeal because all costs will be paid by taxpayers; if professor Tracy loses he will appeal if his funds do not run out. It is totally improper and unfair for University Administrators to use public money to pay for their legal fees while a professor must use his own money. They should have to pay their own legal fees and hire their own lawyers just like professor Tracy. This basic issue of unfairness exists at the very front end of all these similar lawsuits all over the country every day. This reflects the failure of the professors as a group to demand fundamental changes in the way these despicable so called "universities" operate. Boycott is a powerful non violent tool. All professors should learn to cooperate with each other and go on strike to protect each other's most basic fundamental rights of freedom of speech and thought if our institutions of so called "higher learning" are to survive in this country in any reasonable intelligent form. Frankly FAU should be completely shut down forever. This is the only kind of language the administrators and lawyers might understand.

    ReplyDelete
  4. https://www.aol.com/article/news/2017/02/22/appeals-court-rules-second-amendment-doesnt-protect-right-to-as/21719455/
    “Appeals court rules Second Amendment doesn't protect right to assault weapons”
    Only yesterday an appeals court in Virginia made the above ruling. It quoted the Sandy Hook Massacre as its justification or part of it. A large part of Professor Tracy’s efforts revolved around the Sandy Hook Hoax. But it is clear the Sandy Hook so called “Massacre” is nothing but a hoax and fake event. So when is this court going to acknowledge the truth about the Sandy Hook Hoax and change its ruling based on that fake event?

    ReplyDelete
  5. One must not make any inference from the judge's ruling on the outcome of any future trials. I hope James wins hands down. But he has a tough road ahead. They will be paying thousands of dollars an hour to the top expert lawyers in the country. Money is no object for them. All details from their side are secret. This is a classic David and Goliath case. They must win this or they stand to lose a great deal. Lawyers at their level win as much by inside connections with judges, and so on, as they do in a courtroom. Hope for the best, prepare for the worst. "It ain't over until it is over".

    ReplyDelete
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    ReplyDelete
  7. If Defendant loses, FAU WILL NOT appeal. The state government will not allow FAU to appeal using more public money from tax payers! FAU officials for self preservation, will invite Tracy to come back to work for FAU. These "smart" officials will not want a reputation of intentional wrong doing or of being ignorant of laws and regulations. Tracy was a tenured professor; FAU had no just cause to terminate Tracy. Any judge will rule in his favor. Take the pharmacist case in NH for example, a jury ordered Wal Mart to pay her $31 million for sex discrimination. Wal Mart threatened to appeal, but did not do it because appealing the case would cost Wal Mart more than $ 70 million!
    FAU does not belong to anyone of these officials; they come and go. Once FAU loses, Tracy will come back to FAU. The ridiculous matter will be put behind.

    ReplyDelete
  8. Tracy's team will work hard to have the judge deny FAU's summary judgement. Once summary judgement is denied, that will be the mark of success for Tracy. FAU will settle the case out of court. If FAU goes to trial and loses the battle, all the details of FAU's politics/conspiracy against its own tenured professors will become public record. Then, people will say FAU has hired some "morons" as unqualified and unethical administrators and these parasites will lose their jobs for sure...

    ReplyDelete
  9. Look at this order below; FAU is wasting tax payers' money on this trivial matter regarding Dr. Tracy and all professors' constitutionally protected rights, tenure rights!!!
    After Judge denies FAU's summary judgment, FAU SHOULD settle the case and reinstate Dr. Tracy!!! Otherwise, these morons of FAU officials will make themselves a laughing stock and the state government will fire certain unethical administrators in addition to punitive damages awarded by the court:
    PAPERLESS ORDER resetting trial and pretrial deadlines. Trial in this case is reset to the two week trial period beginning on October 30, 2017, however, the parties are notified that, depending on criminal matters, this case may be called up towards the end of the two week trial period and may roll over into the following trial period which begins on November 13, 2017. Calendar Call is reset to October 25, 2017. The pretrial status conference is reset to September 27, 2017. Proposed jury instructions are due by October 23, 2017. Objections to designations of deposition testimony is due by October 16, 2017. Pretrial stipulation due by September 30, 2017. Mediation must be completed by August 30, 2017. All pretrial motions, including motions for summary judgment and motions in limine, must be filed by August 7, 2017. The parties are ORDERED to file a joint stipulation by March 17, 2017 wherein the parties provide the Court with proposed dates for all other pretrial deadlines, including the deadline for fact discovery. Signed by Judge Robin L. Rosenberg on 3/15/2017. (bkd)

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  10. John Kelly has gained a heretical reputation for FAU to fire tenured professors; a new broom sweeps clean, but his tenure at FAU seems to be short lived as the Judge is coming after him. He will be held responsible for violating constitutionally protected rights as well as anti discrimination laws. Hahaha, Kelly, good luck with your stay in FAU's Presidential Home, a home for leading Presidents like Saunders who was effectively removed by FAU mediocre administrators who wanted to maintain the status quo because the vast majority of them are really good for nothing.
    Judge Robin is the greatest judge!
    Dr. Tracy, you will see sunlight, so will all other tenured professors across the nation and around the globe!
    Free speech and academic freedom are the hall marks of this democratic country and tenure rights cannot be trampled on by these unethical/unqualified parasites! Go back to your own state as UFF administrator survey has indicated!

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  11. FAU should fire their two attorneys and internal attorneys including Glick whose license should be suspended by the Federal Court. They know clearly FAU has no case and they charge FAU by the hour by using delaying tactics against tenured professors.
    There are so many competent and ethical people with law degrees. Why hire these unqualified and unethical morons to present to Judge Robin "pretextual" weak offenses, only to invite "a slap" in the FAU administration's FACE?

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  12. John Kelly last November got $80,000 award in addition to his $650,000 salary, $60,000 annual retirement fund! Students and faculty at FAU, open your eyes wide and ask why! So many attorneys were hired to defend him against numerous charges. FAU lacks any evidence to defend itself...

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  13. Current UFF President Bob Zoeller and Vice President Meredith Mountford should be fired because they use their "leadership" opportunities to COVER their own ASSES. These two are extremely unethical and unqualified. FAU faculty should vote them out for good.

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    1. You are a hack. Neither of them have any thing to win by not supporting Tracy which they did until he hired his own lawyer. You clearly know nothing about the case or them. Just another crank from D FAU!

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    2. Bob Zoeller and Meredith Mountford, listen, you idiots' idiots! You took Tracy's union dues, yet you betrayed him by going to bed with FAU ugliest administrators. How was your fucking with them? What did you gain by sleeping with those old women? UFF at Tallahassee will take care of you two idiots sooner or later. Step down if you were wise... Given your conspiracy against your own member/former UFF President, UFF FAU chapter has become notorious in the nation...

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  14. FAU Board of Trustees should fire John Kelly, the number 1 social parasite who has taken too much of money from FAU, yet has retaliated against tenured professors out of his slave owner mentality developed in SC! Apparently, he does not know his job and has abused his power and misguided a bunch of barking dogs including Alperin, Coltman, Zoeler who lack any academic credentials to be qualified leaders. Alperin got her degree from FIU? OMG... Her record at Research Gate is laughable...
    Serious scholars wonder why FAU is staffed with a lot of ASSHOLES?

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  15. Judge Robin has sent a clear signal to FAU: should you go to trial with Tracy, She will rule in Tracy's favor! Kelly better settle the case out of court. Otherwise, Kelly will lose face before FL governor and every Floridan.Kelly would give people an impression that he does not care about losing tax payers' money as long as he gets paid nearly a million per year as a rotting person/idiotic president!

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  16. Settlement conference was set for August 1!!!
    Kelly better give Tracy what he deserves. Otherwise, Kelly would get a SLAP in the face at trial. Free speech and academic freedom cannot be trampled on at FAU! FAU will vote Kelly out of FAU if he is aggressive at settlement conference.

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  17. Board of Trustees and Rick Scott should fire Kelly and Alperine and a few running dogs immediately before Federal Court issues "punitive damages" and injunctive relief to Tracy!

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  18. Dianne Alperin is the single most idiotic FAU administrator FAU should have not have hired her in the first place. She has a degree from FIU, a Tier II university like FAU. Now she is retired, but she installed her long time friend, from her same college, Michelle Hawkins to continue her long tradition of retaliating against tenured faculty and violating faculty's civil rights. What a damn place!

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  19. Dr. Tracy, your case will be settled August 1, for sure! If FAU does not give you your job back and goes to trial with you, this lawsuit will cost FAU/Tax Payers at least $10 million given the number of attorneys hired by both sides. Then, you know what would happen to these IDIOTIC FAU administrators. They would be removed from their jobs!!!

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  20. Legal bills mounting in Beth Burns case
    FAU wanted to repeat this?

    Had San Diego State, when it summoned Beth Burns to a meeting in April 2013 with the athletic director and a human resource representative, fired its longtime women’s basketball coach without cause and simply paid her the final four years of her contract, it would have cost the university $880,000.
    Instead, it fired her with cause and embarked on a three-year legal odyssey that already has cost the California State University system — and, by extension, taxpayers — more than that in legal fees alone, regardless of whether the $3.35 million awarded to Burns last September by a jury in San Diego Superior Court is overturned on appeal.
    And if CSU loses an appeal and is required to pay attorneys’ fees for Burns’ legal team, the total cost could soar north of $11 million.
    Burns sued in San Diego Superior Court, claiming whistleblower retaliation for complaining about potential Title IX violations, while CSU alleged she was fired for mistreating subordinates and even striking one. The case went to trial last summer and resulted in a judgment in Burns’ favor after a 12-person jury voted 9-3 on the key question in the verdict instructions.
    The legal bill has been mounting ever since.
    According to documents obtained through a public records request, CSU paid $934,869.15 to an outside law firm to litigate the case — $824,985.85 in billable hours and just under $110,000 in court expenses such as witness travel, depositions and transcripts.
    The total likely exceeds $1 million when you include salaries of in-house CSU and SDSU attorneys who managed the case and attended the month-long trial, plus other staff expenses. (There also was a $250,000 settlement paid to Adam Barrett, a first-year assistant coach who allegedly was elbowed by Burns on the bench during a game.)
    But the big money could come in a motion hearing scheduled for next month, when Judge John Meyer is expected to rule on the request for attorneys’ fees and associated costs by Burns’ legal team.
    Its request: $6.89 million.

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  21. FAU administrators are not SO Stupid. Dr. Tracy's case was settled!!!
    FAU cannot afford $10 million legal fees, plus punitive damages. Both state government and SACS accreditation would come after their ASSES if they invited court action to mess up with Dr. Tracy!
    For self preservation, FAU administrators swallowed a bitter pill and became losers! It served them RIGHT. Don't mess up with tenured professors for whatever bullshit reasons and you would enjoy being your God Damn Fucking mediocre administrators or parasites preying on FL tax payers' money!!!!!!!!

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  22. Dr. Tracy, don't be discouraged. Your case will be SETTLED prior to commencement of trial!!! Two reasons: 1. FAU attorneys need to make more money by billing the university by the hour because they know Judge will rule in your favor. Also, they want FAU to lose, then FAU would pay each attorney nearly 1 million dollars.
    2. Kelly and Coltman and Alperin must save their ugly face. If they let you win at this point, the general public will say, these administrators have no brains; they fired a tenured professor because they listened to Cooper etc. They must prove that they are fucking qualified as university administrators.

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  23. From Dr. Tracy's posted court documents, Liar Dianne Alperin has failed to answer pertinent questions at deposition. This unqualified and unethical FAU former Vice Provost will lose face at trial and her character will be cross examined before news media. She will start her nightmares during retirement. She had better completely retire from FAU and bury her ugly face...

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  24. The more attorneys FAU hires against Dr. Tracy, the more the court will penalize FAU for wasting tax payers' money! Punitive damages will be a sure thing. FAU will lose reputation and dignity. FAU has violated Dr. Tracy's constitutional rights and trampled on his tenure rights and academic freedom. The world will LAUGH at FAU's idiocy. Good luck to these FAU administrators (seeming morons) if they could retain their jobs...

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  25. What does tenure mean to Alperin and her newly handpicked Michelle Hawkins? How come Kelly did not do a nationwide search for a Vice Provost? These two women are such a disgrace to the whole FAU community. They know nothing about FAU handbook, let alone U.S constitution or state laws. They had better pee on themselves and drown themselves!!!!!!!!!!!!!!!!!!!!!!!!!!

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  26. Michelle Hawkins is an Orifice and IDIOT! This bitch must resign from her unqualified position! She should study intensively federal laws and state laws regarding retaliation or discrimination...

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  27. FIRE announces its Speech Code of the Month for August 2013: Florida Atlantic University (FAU).

    Perhaps in response to some of the recent controversy at the university, FAU—a public university—has adopted a new policy on “Free Speech and Campus Civility” (PDF). That policy states, in relevant part:

    Here at FAU, we encourage our campus community to exercise this cherished freedom in lively debate. In fact, we protect and promote that right. What we do insist on, however, is that everyone in the FAU community behave and speak to and about one another in ways that are not racist, religiously intolerant or otherwise degrading to others. (Emphasis added.)

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  28. These FAU idiots under Kelly/Alperin and Hawkins are still fighting, wasting taxpayer's money even though they know how the judge will rule in Tracy's favor...
    The 6 attorneys are simply greedy, billing FAU by the hour. They won't stop until they see their coffins, LOL...

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  29. Dr. Tracy, you are fighting for all tenured professors at Florida Atlantic University and tenured professors throughout the country! It is worth hiring two legal teams to represent you because you are challenging the most EVIL FAU administrators who have recklessly violated US Constitution. These morons must pay a price. DON'T let them set the precedent of firing a tenured professor based on their own BULLSHIT. The morons dare not proceed to trial with you. Your attorneys will cross examine em and their character will be called into question. Your summary judgment SHOULD be granted. Thank you for being a hero for all tenured professors! You deserve millions and these morons deserve punishment!!!!!!!!!!!!!!!!!!!!!!!!!

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    1. Prof. James Tracy is my hero. Go for it, Sir. We know that the academic world is too fragile to stand up and fight you - perhaps only certain dual-citizen types are driving the issue. I mean most academics seem not to have high moral fibre necessary to refute the dual-citizens. How wonderful to see the academics who join with Jim Fetzer and stand up and speak out. It says to me CHARACTER and courage. Well done to the fighting few.

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  30. FAU should not have filed summary judgment; they are simply playing dumb by not fully understanding the message by Judge Robin's order: The Federal Court will slap these FAU idiots and chauvinist pigs and rednecks in the face if they dare go to trial with Dr. Tracy. FAU idiots, open your dirty eyes and study the following rule regarding summary judgment and stop wasting tax payers' money. Your attorney fees should be used to support FAU faculty and students' teaching and research: In many employment law cases, the employer eventually files what is called a motion for summary judgment in which it asks the court to dismiss your case. These motions are decided by a judge, whose job is to determine whether you have enough evidence that you could prove your legal claims.
    Fortunately, when deciding whether to dismiss your case on a motion for summary judgment a judge is required to accept all of your facts as true as long as you have admissible evidence supporting them. That is true even if your employer has witnesses and evidence that appear to contradict those facts. The judge is merely supposed to decide whether you have enough evidence that you could prove your claims at a trial. It is not until your trial that a judge or jury is supposed to weigh your evidence against your employer’s evidence to decide who it believes.

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  31. SOME FAU academics absolutely don't high moral fibre. Ask how many tenured professors and staffers are suing FAU new admin under Kelly at this point. The more people are suing these unqualified/unethical administrators, the more likely, these idiots will lose their jobs. Let em fight Dr. Tracy in court and FAU will lose millions and HUGE negative publicity.

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  32. Kelly, Hawkins, Alperin and Coltman should be FIRED immediately by board of trustees for defending a meritless/frivolous lawsuit. FAU is doomed to fail in court. FAU will lose millions/plus negative publicity in the nation.
    Kelly, the number one racist/slave owner, go back to SC!

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  33. No worries, Dr. Tracy! From the court documents, Alperin's cohort admitted they did not terminate your tenured employment for violation of free speech. They terminated you based on a made up pretext, the unconstitutional FORM! This FORM is such bullshit, so minor administrative procedure, which cannot serve as grounds to fire you! Please note, these idiots dare not go to trial with you. The case may be settled on the EVE of trial!
    Celebrate your victory. Your students are waiting for your return!

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  34. Condolences to Florida Atlantic University:
    FAU hired a few Unstable, Dishonest, Immoral Bullies. Alperin is a long time parasite, waiting for a perfect opportunity to retaliate against Dr. Tracy. The mediocre administrators removed world class scientists Saunders and created a bloating administration including their spouses serving as assistant vice president or provost, drawing a large salary/benefits from FAU faculty and students!

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  35. Sudden withdrawal of Keith Soderling by FAU signifies some facts: 1. FAU does not want to leave the general public the impression that FAU killed a fly with a sledge hammer. For this unconstitutional form, FAU has no grounds to fire a tenured professor. 2. If FAU loses the case at trial, Keith is a smart attorney, he does not want to be associated with this shameful loss. He may have made enough money from FAU thus far. 3. FAU must reduce the number of attorneys because once FAU loses the case, the judge will order FAU to pay all attorney cost, which would be $10 million easily.
    By the end of the day, state government may reform FAU administration. Therefore, FAU folks, if you are wise, better settle the case on the court steps before it is too late. FAU folks cannot afford the embarrassment of losing the case! STOP treating your tenured professors like DIRT!
    Treat your professors with dignity and respect!

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  36. More than ever, surviving summary judgment is the key to victory in employment law, so much so that the vast majority of the time surviving the summary judgment motion is the functional equivalent of winning the case. In reviewing my cases over the past several years, surviving summary judgment generally has been followed by a rapid settlement or an easy
    @trial victory, almost invariably at figures far higher than would have settled the case months prior. So high is the bar for Plaintiffs on summary judgment that even most federal judges express surprise when a case does not settle shortly after the motion is denied. After all, everyone now realizes that what was once a tenuous relationship between surviving summary judgment and a victory on the merits for the Plaintiff is now a virtual certainty. Indeed, the overwhelming majority of the time, to avoid summary judgment is to win the case. Conversely, of course, the pressure is on the employer and attorney as well, frequently B and especially with a sympathetic Plaintiff and compelling facts B the possibility of dismissal via summary judgment is the employer’s last and best chance for victory.

    Dr. Tracy, you are winning the case for sure! Judge Robin has already sent the message to FAU. FAU idiots are playing dumb. But they won't shed tears until they see their coffins...

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  37. The law is more favorable to employees when they are harassed by a supervisor. If the individual harassing you is a supervisor (generally meaning they have hiring and firing authority or the ability to affect the terms and conditions of your employment) liability is often imputed to the employer. While there are of course caveats to this and defenses that the employer may rely on, a case is stronger when the harasser is a supervisor and not a mere co-worker.

    Dr. Tracy: your harassers are Coltman, Alperin, Kelly, Board of Trustees, Zoeler, Moats, Mountford, and Hawkins...

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