Employment Law Daily Conspiracy-blogger professor not entitled to new trial on First Amendment retaliation claim
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Friday, April 27, 2018

Conspiracy-blogger professor not entitled to new trial on First Amendment retaliation claim

By Kathleen Kapusta, J.D.

Denying post-trial motions by a former Florida Atlantic University professor after a jury found his termination was unrelated to the exercise of his First Amendment rights—he claimed his termination was motivated by his personal blog postings on mass shootings, particularly his claim that the Sandy Hook massacre was a hoax—a federal court in Florida found, among other things, that the great weight of the evidence at trial was in favor of the university and its board of trustees. Nor did the professor have standing to pursue his claims that FAU’s policies were unconstitutional given that he was no longer an employee of FAU and could not be reinstated by the court (Tracy v. Florida Atlantic University Board of Trustees aka Florida Atlantic University, April 24, 2018, Rosenberg, R.).

The tenured professor in the university’s School of Communications, who taught among other things a class on “Culture of Conspiracy,” began to blog about the Sandy Hook shooting in December 2012, suggesting it never happened and was “staged by the government to promote gun control.” The blog garnered national attention and caused many to call for his termination. In January 2013, FAU issued a notice of discipline pertaining to his lack of an adequate disclaimer on his blog and the professor ultimately amended his disclaimer.

Notice of termination. In October 2015, the professor was ordered to report his outside activities by completing and submitting a conflict of interest form. When he refused to complete the form by the designated deadline, he was issued a notice of termination. Rather than grieving his termination as required by the governing collective bargaining agreement, he sued the university. His First Amendment retaliation claim ultimately went to a jury, which found his termination was unrelated to the exercise of his First Amendment rights. The professor subsequently moved for a new trial and renewed his motion for judgment as a matter of law.

Verdict supported by evidence. The central premise in his motion for a new trial was that the jury verdict was against the great weight of the evidence but this contention, said the court, was without merit. First, there was evidence showing the professor was at all times permitted to blog without any censorship by FAU. There was also evidence that if he had complied with his obligation to complete all necessary forms, he would have been allowed to keep his job. Moreover, the court pointed out, the three years between his most controversial blog posts about Sandy Hook and his termination called into question the entire theory of his case.

And while he argued that the university was biding its time waiting for an opening to terminate him because of his blog speech, there was evidence another professor who caused a controversy that resulted in massive media attention and the presence of police on campus kept his job at FAU and there was no censorship. The university’s position throughout trial, the court pointed out, was that the professor was fired solely for his insubordination in refusing to fill out the outside activities form and he failed to produce any evidence of an FAU employee who refused to fill out the form (when asked to do so) and was treated differently.

Insubordination. There was also a large amount of evidence showing his refusal to fill out the form was insubordinate, including evidence he privately admitted to others his refusal was a mistake, he thought he would be protected from termination by his tenured status, and he called the insubordination charge against him “cut-and-dry.” As to his claim at trial that he did not fill out the required forms because they were confusing, it appeared that he alone completely refused to fill them out. Further, he ultimately did fill out the forms after the deadline imposed by FAU, leading to the logical inference that he simply chose not to fill out the forms for his own purpose.

Actual violation. In addition, there was evidence his refusal to fill out the forms was in the context of an actual violation with respect to the outside activities that he refused to report. He admitted to receiving compensation through his blog, privately admitted the blog was a reportable activity, was advised by the union that it could be a reportable activity, and admitted to spending hours of hours on his blog and related research and at times using school equipment while working on his blog and related podcasts. Further, he received compensation for a book entitled “Nobody Died at Sandy Hook: It was a FEMA Drill to Promote Gun Control,” which was not disclosed to FAU and which contained articles from his blog.

Noting further that there was evidence that called into question the professor’s truthfulness in general, the court pointed out that his best evidence could be divided into three categories: (1) his own testimony, (2) a vague phrase located in FAU documents, suggesting that, in the context of his employment, the university should “find winning metaphors,” and (3) celebratory emails that FAU employees exchanged after his termination. Finding that the great weight of the evidence was in the university’s favor, the court denied his motion as to any argument that the evidence did not support the jury’s verdict.

Exclusion of audio recording. As to his claim he was entitled to a new trial because the court erred in excluding an audio recording of an FAU senate faculty meeting, which showed that its outside activities policy and forms were confusing, the court explained that this was not a case about confusion, nor about what he was thinking when he acted as he did. Rather, it was about why he was terminated. Thus, evidence of confusion was not a core issue in the case. Moreover, he was allowed to introduce evidence of his confusion and thus excluding the audio, which was hearsay, did not affect his substantial rights.

Exclusion of letters. Nor was he entitled to a new trial because the court excluded two letters from constitutional rights groups expressing their support for him in 2013. The letters contained legal conclusions and were written years before his termination and he was not prevented from introducing similar evidence through another form.

Thus for all these reasons, the court denied his motion for a new trial. And for the same reasons, it also denied his renewed motion for judgment as a matter of law.

Motion for reconsideration. The professor styled his motion for reconsideration of the court’s prior grant of summary judgment (against his claim that FAU’s outside activity policy was unconstitutional) as part of his renewed motion for judgment as a matter of law. But the court was uncertain how the motion should be treated. If his intent was solely to move for reconsideration of the summary judgment order for a third time, the court denied his request for all of the reasons set forth in its order denying his first motion for reconsideration. If his intent was to move for judgment as a matter of law on his constitutional claims a second time, the court denied that request as well because it could not agree that “the record unquestionably establishes that FAU implemented a government policy, in the form of the conflict of interest Policy, that unconstitutionally chilled the speech of Plaintiff and others.”

Standing? Finding it was unable to ascertain how he had standing to pursue his constitutional claim, the court noted that assuming it were to reinstate his constitutional challenge and permit a trial on those claims, the jury’s verdict in his original trial bound him and thus it was no longer possible for the court to reinstate him to his former position. “While Plaintiff had standing to argue that FAU policies were unconstitutional at the onset of this case, the jury’s verdict has had the result of Plaintiff losing his standing to make that argument,” the court explained.

He could not argue that FAU’s policies caused his termination, because the jury’s verdict found his exercise of free speech had nothing to do with his termination, observed the court, noting that instead, the issue squarely before the jury was whether he was terminated as a result of his insubordination. Nor could the court discern how he could argue that FAU’s policies were so unconstitutional that they caused him to become insubordinate, which caused his termination, in light of the fact that every other faculty member complied with FAU policies, those faculty members did not become insubordinate while trying to comply with those policies, and he complied with FAU policies in the past without becoming insubordinate.

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