Labor & Employment Law Daily Fired Sandy-Hook-denying professor can’t revive claims against university employer
Thursday, November 19, 2020

Fired Sandy-Hook-denying professor can’t revive claims against university employer

By Brandi O. Brown, J.D.

The conspiracy-blogger professor was fired for insubordination when he refused to report his personal blog under a conflict of interest policy.

A professor who questioned, on a personal blog, whether the Sandy Hook massacre had occurred, and who was fired after refusing demands to report his blog under a CBA policy, was unable to revive claims against the university on appeal. Most of his claims had been dismissed on summary judgment, and a jury found in favor of the employer on his claim of First Amendment retaliation. The Eleventh Circuit affirmed, concluding that the university policy was not unconstitutionally vague or overbroad and that it did not operate as a prior restraint on speech under the unbridled-discretion doctrine. Moreover, the jury verdict on the retaliation claim was not against the weight of the evidence (Tracy v. Florida Atlantic University Board of Trustees, November 16, 2020, Carnes, J.).

Refused to report blog. Following the Sandy Hook Elementary School shooting in 2012, the tenured professor in the university’s School of Communications, where he taught among other things a class on “Culture of Conspiracy,” blogged about the massacre, questioning whether it had actually occurred. The university did not ask him to stop blogging, but it did request that he post an adequate disclaimer on his blog and that he report it as an outside activity as required under the faculty’s collective bargaining agreement. He posted a disclaimer approved by the employer, but he adamantly refused to report the blog, arguing that it did not qualify as “Reportable Outside Activity” under the CBA’s “Conflict of Interest/Outside Activities” policy.

Multiple warnings and termination. Subsequently, the employer made multiple attempts to get the professor to comply. In 2015, he refused to accept terms and conditions that included an acknowledgement that faculty must report outside activities. Rather than submit the report, the professor insisted that the employer clarify in writing that his blog was not a conflict of interest. Thereafter, the employer sent him a notice of discipline, giving him 48 hours to submit outside-activity reports and warning him that failure to do so would constitute insubordination.

The employer extended that deadline, which he had not met, and warned him that noncompliance could lead to termination. He didn’t meet the revised deadline and though he did later submit reports, he still did not report the blog. He received a final notice warning him that he would be fired if he did not respond within 10 days. He did not respond and was fired.

Lawsuit. His First Amendment retaliation claim ultimately went to a jury, which found his termination was unrelated to the exercise of his First Amendment rights. His other claims had been dismissed at summary judgment. He moved for a new trial and renewed his motion for judgment as a matter of law. Those motions were denied. He appealed those decisions, as well as the summary judgment decision dismissing his other claims.

Jury verdict. With regard to his motions for judgment as a matter of law and for a new trial, which were both focused on the retaliation claim, the court affirmed. In order to establish that he was fired in retaliation for protected speech, the professor had to prove that his speech played a “substantial part” in the employer’s decision. However, the jury found that the blog speech was not a motivating factor in the decision and there was more than sufficient evidence to support that verdict. The university presented evidence that he was fired for insubordination and that he would not have been disciplined if he had submitted complete outside-activity reports.

Indeed, the record showed that the employer “waged a multi-year battle” for his compliance. In fact, evidence showed that the professor knew he was being insubordinate—he told a union rep that his conduct was “cut-and-dry” insubordination but that he thought his tenure status would insulate him from discipline. There was also evidence he was not the only faculty member fired for insubordination for failure to complete the reports. The jury was entitled to weigh that evidence against circumstantial evidence he introduced and find for the employer.

Summary judgment. The court also addressed the professor’s arguments regarding the district court’s summary judgment decision. The district court correctly concluded that he failed to exhaust the CBA’s mandatory grievance-and-arbitration procedures. With regard to the remainder of the summary judgment determinations, which dealt with constitutional questions, the court likewise affirmed the lower court’s decision, although it reached the conclusion by a “different route.”

It concluded that the CBA’s conflict of interest policy and its reporting requirement, specifically with regard to “professional practice,” was not unconstitutionally vague. The plain meaning of “professional practice,” the court concluded, provided fair notice regarding what was reportable and did not present a risk of discriminatory or arbitrary enforcement. Moreover, the requirement clearly applied to the professor’s particular unreported activity because his blog clearly constituted a “professional practice,” as he was a media expert and it mirrored what he did professionally.

The court also found meritless his arguments that the reporting requirement was facially overbroad or that it constituted a content-based restriction on speech. It noted that the professor submitted no evidence the employer had ever determined that an outside speech activity constituted a prohibited conflict, even though the policy’s language had been part of the CBA for over 10 years.

Finally, the court concluded that the lower court did not abuse its discretion by excluding from trial a faculty senate meeting transcript that had “little probative value for the core issue at trial.”

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