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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10173 ________________________
D.C. Docket No. 9:16-cv-80655-RLR
JAMES TRACY,
Plaintiff-Appellant,
versus
FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, CHRISTOPHER BEETLE, JOHN W. KELLY, HEATHER COLTMAN, DIANE ALPERIN, FLORIDA EDUCATION ASSOCIATION, ROBERT ZOELLER, JR., MICHAEL MOATS,
Defendants-Appellees,
ANTHONY BARBAR, et al.,
Defendants. USCA11 Case: 18-10173 Date Filed: 11/16/2020 Page: 2 of 26
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(November 16, 2020)
Before MARCUS, JULIE CARNES, and KELLY,* Circuit Judges.
JULIE CARNES:
Following the December 14, 2012 Sandy Hook Elementary School shooting
in Newtown, Connecticut, where twenty children and six adults lost their lives,
Plaintiff James Tracy attracted national news media attention for publicly
questioning whether the massacre had in fact occurred. At the time, Plaintiff held
a tenured position in the School of Communication and Multimedia Studies at
Florida Atlantic University and maintained a personal online blog, called the
“Memory Hole Blog,” where he criticized the media and explored conspiracy
theories. The University did not ask Plaintiff to stop blogging but did request that
he post an adequate disclaimer on his blog and report his outside activities, as
required under the faculty’s collective bargaining agreement (“CBA”). As part of
a settlement agreement, Plaintiff complied in part, posting a University-approved
disclaimer. But he adamantly refused to report his blog, arguing that the blog did
* Honorable Paul J. Kelly, Jr., United States Circuit Judge for the Tenth Circuit, sitting by designation.
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not qualify as a “Reportable Outside Activity” under the CBA’s “Conflict of
Interest/Outside Activities” policy (“the Policy”). Approximately two years later,
after Plaintiff refused multiple requests to submit outside-activity reports and
ignored warnings that his recalcitrance could result in termination, the University
fired him for insubordination.
Plaintiff sued the University and associated individuals alleging that the
Policy was unconstitutionally vague, that his termination breached the CBA, and
that the University had used his insubordination as a pretext for First Amendment
retaliation. Concluding that Plaintiff had failed to exhaust his remedies and that
his vagueness challenge as to the Policy was not viable, the district court granted
summary judgment against Plaintiff on both his constitutional and breach-of-
contract claims. The court denied summary judgment as to Plaintiff’s First
Amendment retaliation claim, sending this claim to trial. The jury rejected
Plaintiff’s First Amendment retaliation claim after a nine-day trial. On appeal,
Plaintiff asks us to reverse the district court’s summary judgment rulings and to
overturn the jury verdict. We decline to do so and affirm the decisions below.
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I. PROCEDURAL HISTORY
Plaintiff’s Second Amended Complaint asserted six claims, only five of
which are at issue on appeal. 1 Claims 1, 3, and 4 were constitutional challenges
asserted under 42 U.S.C. § 1983. In Claim 1, Plaintiff alleged that Defendants had
terminated him in retaliation for exercising his constitutionally protected speech
rights. Claims 3 and 4 alleged that the Policy was vague and overbroad, both
facially and as applied to Plaintiff. Claim 5 requested a declaratory judgment that
the Policy was unconstitutional. Finally, in Claim 6, Plaintiff alleged that the
University had breached the CBA by firing him.
Defendants moved for summary judgment on all claims. In response,
Plaintiff moved for partial summary judgment on Claims 1, 3, 4, and 5, arguing
that the evidence showed he was terminated in retaliation for his protected speech
and that the Policy was unconstitutional. The district court denied Plaintiff’s
motion. As for Defendants’ motion, the district court granted summary judgment
to Defendants on Claims 2–6, but denied the motion with respect to Claim 1: the
First Amendment retaliation claim.
At trial, the jury returned a verdict for the University on Claim 1, finding
“[t]hat Professor Tracy’s blog speech was [not] a motivating factor in FAU’s
1 Plaintiff alleged in Claim 2 that his union conspired with the University to interfere with his civil rights. On appeal, Plaintiff does not challenge the district court’s grant of summary judgment to Defendants on that claim.
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decision to discharge him from employment.” Plaintiff moved for judgment as a
matter of law, arguing that the jury could not have reasonably found that his speech
did not motivate the University to fire him. In the alternative, Plaintiff moved for a
new trial, arguing that the verdict was against the great weight of the evidence, and
that the court had abused its discretion in excluding a transcript of a Faculty Senate
meeting where professors complained about the Policy. The district court denied
Plaintiff’s motions. This appeal followed.
II. DISCUSSION
A. Summary Judgment
The district court granted summary judgment to the University on Plaintiff’s
breach-of-contract claim (Claim 6), on his § 1983 claims that the Policy was
facially unconstitutional (Claim 3) and unconstitutional as applied to him (Claim
4), and on his declaratory-judgment claim that the Policy should be declared
unconstitutional (Claim 5). We affirm the district court’s summary judgment
rulings.
This Court reviews constitutional questions de novo. Fort Lauderdale Food
Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235, 1239 (11th Cir. 2018). We
also review de novo a district court’s grant of summary judgment, viewing the
evidence in the light most favorable to the non-moving party. Id. at 1239–40.
“The court shall grant summary judgment if the movant shows that there is no
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genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
1. Claim 6: Breach-of-contract claim
The district court correctly concluded that Plaintiff’s failure to exhaust the
CBA’s mandatory grievance-and-arbitration procedures barred his claim that the
University breached the CBA by firing him (Claim 6). “An employee claiming a
breach by his employer of the collective bargaining agreement is bound by the
terms of that agreement as to the method for enforcing his contractual rights” and
“must attempt to use the grievance and arbitration procedure established by the
employer and union in the collective bargaining agreement prior to bringing suit in
federal court.” Redmond v. Dresser Indus., Inc., 734 F.2d 633, 635 (11th Cir.
1984).
Plaintiff concedes that he did not grieve his disputes in accordance with the
CBA. He argues, however, that the grievance procedure was optional and that
grieving would have been futile. Plaintiff’s arguments are unpersuasive. The
CBA clearly provides that the grievance procedure was mandatory, stating that that
the procedure “shall be the sole and exclusive method for resolving the grievances
of employees.” As to his claim of futility, Plaintiff provides no support for his
conclusory statement that “filing a grievance would have been a meaningless
gesture.” As the district court correctly observed, Plaintiff was not at the mercy of
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the University’s judgment because the collective bargaining agreement provided
for an independent arbitrator. Accordingly, the district court did not err in granting
summary judgment on Plaintiff’s breach-of-contract claim.
2. Claims 3–5: Constitutional claims challenging the Policy Although we affirm the district court on the constitutional claims, we get
there by a different route than did that court. The district court granted summary
judgment to the University on Plaintiff’s constitutional claims challenging the
Policy under the First and Fourteenth Amendments (Claims 3–5), ruling that
Plaintiff failed to exhaust those claims through the CBA’s grievance procedure
and, in any event, that the CBA’s contractual terms, unlike positive law, are not
subject to a challenge on the ground of vagueness.2
2 The district court also indicated its belief that Plaintiff lacked appellate standing to challenge the district court’s grant of summary judgment on his claims that the Policy was unconstitutional because the jury’s determination that the University did not fire Plaintiff based on his speech left Plaintiff with no standing to challenge that policy. We disagree with that assessment. “The primary limitation on a litigant’s appellate standing is the adverseness requirement,” under which “[o]nly a litigant who is aggrieved by the judgment or order may appeal.” Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353–54 (11th Cir. 2003) (alteration accepted) (quotation marks omitted). The jury’s finding that the University did not fire Plaintiff for his speech did not decide Plaintiff’s claim that the University fired him for failing to comply with what he asserts to be an unconstitutional policy. In any event, even if one concluded that the jury’s finding precluded a reversal of the district court’s grant of summary judgment on the constitutional claims, Plaintiff has standing to challenge the summary judgment ruling because he has appealed that jury verdict, meaning a successful appeal could result in a new trial. The district court also ruled that Plaintiff had waived his constitutional challenge to the Policy because, as a former union president and as a union member, Plaintiff had accepted the CBA’s terms, one of which terms included the policy that Plaintiff now challenges. Defendants expressly abandoned their waiver defense at trial, however, and that ruling is not before us on appeal.
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In so explaining its ruling, the district court relied on Hawks v. City of
Pontiac, 874 F.2d 347 (6th Cir. 1989). In that case, the plaintiff police officer had
been demoted after violating a residency requirement in a collective bargaining
agreement. Id. at 348–49. The Sixth Circuit held that the officer could not
challenge the requirement because it was a contractual term that “may not be
characterized as a positive law subject to due process challenge for vagueness” and
the requirement’s interpretation was subject to the collective bargaining
agreement’s grievance and arbitration process. Id. at 349–50. Hawks has some
intuitive appeal because the vagueness doctrine concerns fair notice, and parties to
a contract are ordinarily presumed to understand terms to which they have agreed.
See FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (noting that the
vagueness doctrine addresses “[a] fundamental principle in our legal system . . .
that laws which regulate persons or entities must give fair notice of conduct that is
forbidden or required”); see also 27 Williston on Contracts § 70:114 (4th ed.)
(“One who signs or accepts a written contract, in the absence of fraud or other
wrongful act on the part of another contracting party, is conclusively presumed to
know its contents and to assent to them.”).
Nevertheless, there are reasons to doubt the viability of the Sixth Circuit’s
reasoning, given the existence of caselaw indicating that § 1983 claims generally
need not be exhausted and that collective bargaining agreements are not immune to
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constitutional challenges, plus the fact that courts regularly entertain vagueness
challenges to policies that do not qualify as positive law. Patsy v. Bd. of Regents of
State of Fla., 457 U.S. 496, 515–16 (1982) (holding that § 1983 claims need not be
exhausted unless Congress has “carved out . . . [an] exception to the no-exhaustion
rule”); Beaulieu v. City of Alabaster, 454 F.3d 1219, 1226–27 (11th Cir. 2006)
(“The Supreme Court and this Court have held that there is no requirement that a
plaintiff exhaust his administrative remedies before filing suit under § 1983.”
(citing Patsy, 457 U.S. at 516)); Narumanchi v. Bd. of Trustees of Connecticut
State Univ., 850 F.2d 70, 73 (2d Cir. 1988) (“Nor is it permissible, in light of Patsy
v. Board of Regents, supra, to require initial recourse to available state
proceedings, including union grievance proceedings, for the enforcement of First
Amendment rights protectable in federal court pursuant to section 1983.”); Wygant
v. Jackson Bd. of Educ., 476 U.S. 267, 273–74, 284 (1986) (holding that a
contractual provision in a collective bargaining agreement, which “operate[d]
against whites and in favor of certain minorities,” violated the Equal Protection
Clause); see, e.g., Doe v. Valencia Coll., 903 F.3d 1220, 1232–33 (11th Cir. 2018)
(concluding that a university’s code of conduct, which did not qualify as positive
law, was neither facially overbroad nor unconstitutionally vague); see also
Hamilton v. U.S. Postal Serv., 746 F.2d 1325, 1328 (8th Cir. 1984) (holding that a
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collective bargaining agreement’s standard for discipline was not
unconstitutionally vague).
That said, we need not accept or reject the Sixth Circuit’s reasoning to
resolve this appeal, as Plaintiff loses on the merits of his challenge. See Wetherbee
v. S. Co., 754 F.3d 901, 905 (11th Cir. 2014) (noting that we may affirm a district
court’s summary judgment ruling on any ground supported by the record). Thus,
without deciding the issue, we assume for the purposes of this appeal that Plaintiff
could constitutionally challenge the Policy on vagueness grounds.
In evaluating the merits of Plaintiff’s challenge, we note first that the CBA’s
Policy has two components. First, the Policy includes a reporting requirement,
under which a faculty member who proposes to engage in a “Reportable Outside
Activity” must submit “a detailed written description of the proposed activity.”
The CBA defines “Reportable Outside Activity” as “any compensated or
uncompensated professional practice, consulting, teaching or research, which is
not part of the employee’s assigned duties and for which the University has
provided no compensation.” (Emphasis added.) Second, the Policy includes a
prohibition on engaging in any “conflict of interest,” which is defined as including
(1) “any conflict between the private interests of the employee and the public
interests of the University,” (2) “any activity which interferes with the full
performance of the employee’s professional or institutional responsibilities or
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obligations,” and (3) “any outside teaching employment.” Thus, the Policy’s
reporting requirement allows the University to assess whether a professor’s outside
activity constitutes a conflict of interest, while the Policy’s prohibition on conflicts
of interest provides a mechanism for the University to prohibit an outside activity
that so qualifies.
Plaintiff raises two primary arguments, which roughly correspond to the
Policy’s two components. First, he argues that the reporting requirement is
unconstitutionally vague because the term “professional practice” in the definition
of “Reportable Outside Activity” does not give fair notice to professors as to what
must be reported. In particular, he contends that the term “professional practice” is
undefined and broad enough to encompass any outside activity because the Policy
states that the term includes both “compensated and uncompensated” activities.
Plaintiff’s argument is unpersuasive. “The void-for-vagueness doctrine
serves two central purposes: (1) to provide fair notice of prohibitions, so that
individuals may steer clear of unlawful conduct; and (2) to prevent arbitrary and
discriminatory enforcement of laws.” Mason v. Fla. Bar, 208 F.3d 952, 959 (11th
Cir. 2000). Accordingly, “[v]agueness arises when a statute is so unclear as to
what conduct is applicable that persons of common intelligence must necessarily
guess at its meaning and differ as to its application.” Id. at 958.
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Here, the term “professional practice” is not vague, especially when
considered in context. Further, the fact that the Policy does not define
“professional practice” is not dispositive. When a term is left undefined, “we
normally construe it in accord with its ordinary or natural meaning.” See Smith v.
United States, 508 U.S. 223, 228 (1993); accord F.D.I.C. v. Meyer, 510 U.S. 471,
476 (1994). On that score, the ordinary meaning of “professional practice” is
readily understandable, and its scope is limited. “Practice” means “to make use of”
or “to carry on or engage in.” Practice, Merriam-Webster Unabridged,
https://unabridged.merriam-webster.com/unabridged/practice (last visited Nov. 3,
2020). “Professional” is generally defined as “of, or relating to, or characteristic of
a profession or calling” or “engaged in one of the learned professions or in an
occupation requiring a high level of training and proficiency.” Professional,
Merriam-Webster Unabridged, https://unabridged.merriam-
webster.com/unabridged/professional (last visited Nov. 3, 2020). Thus,
“professional practice” refers to engaging in an activity characteristic of one’s
profession. That the Policy uses the term “professional practice” in this sense is
further confirmed by the fact that it appears in a list of activities typically engaged
in by academic professionals, such as “consulting,” “teaching,” and “research.”
See Third Nat’l Bank in Nashville v. Impac Ltd., Inc., 432 U.S. 312, 322 (1977) (“It
is a familiar principle of statutory construction that words grouped in a list should
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be given related meaning.”); see also Ace Am. Ins. Co. v. Wattles Co., 930 F.3d
1240, 1258–59 (11th Cir. 2019) (discussing the “associated words canon”).
Finally, because the plain meaning of “professional practice” limits the term’s
application to activities that are “professional” in nature, the term does not
encompass any and all outside activities, as Plaintiff contends.
While certain activities might less clearly connote a professional practice
than would other activities, that possibility does not render the Policy
unconstitutionally vague. See United States v. Williams, 553 U.S. 285, 306 (2008)
(“What renders a statute vague is not the possibility that it will sometimes be
difficult to determine whether the incriminating fact it establishes has been proved;
but rather the indeterminacy of precisely what that fact is.”); see also Fox
Television Stations, 567 U.S. at 253 (“[A] regulation is not vague because it may at
times be difficult to prove an incriminating fact but rather because it is unclear as
to what fact must be proved.”). “[P]erfect clarity and precise guidance have never
been required even of regulations that restrict expressive activity.” Ward v. Rock
Against Racism, 491 U.S. 781, 794 (1989). In short, we conclude that the plain
meaning of “professional practice” provides fair notice to persons of ordinary
intelligence as to what is reportable under the Policy and does not present a risk of
arbitrary or discriminatory enforcement.
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Plaintiff’s vagueness challenge fails for the additional reason that the
reporting requirement clearly applied to his own particular unreported activity.
Cf. Valencia Coll., 903 F.3d at 1233 (“[A] plaintiff whose speech is clearly
proscribed cannot raise a successful vagueness claim . . . .” (alteration and ellipsis
in original) (quotation marks omitted)). As his union president later testified, the
blog clearly constituted “professional practice” because Plaintiff was a media
expert who taught courses such as “The Culture of Conspiracy,” and the blog
closely mirrored what he did professionally.
Finally, we find meritless Plaintiff’s overarching First Amendment
arguments that the Policy’s reporting requirement is facially overbroad and
constitutes a content-based restriction on speech. A facial-overbreadth challenge
requires a showing that “the statute punishes a substantial amount of protected free
speech.” Valencia Coll., 903 F.3d at 1232 (emphasis omitted) (quotation marks
omitted). But the reporting requirement does not punish or restrict any speech; it
requires only that faculty report certain types of speech activities. That University
officials must perform a “cursory examination” of a professor’s speech content—
which is at most what the Policy requires to assess whether an activity qualifies as
a professional practice—does not transform the reporting requirement into a
content-based regulation. See Hill v. Colorado, 530 U.S. 703, 721–22 (2000)
(“We have never held, or suggested, that it is improper to look at the content of an
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oral or written statement in order to determine whether a rule of law applies to a
course of conduct.”). Nor has Plaintiff offered any persuasive argument why, as
applied to him, the requirement became a content-based regulation. Accordingly,
Plaintiff’s facial and as-applied First Amendment challenges to the Policy’s
reporting requirement fail.
Plaintiff’s second argument is that the Policy’s definition of “conflict of
interest,” combined with its prohibition of such conflicts, operates as a prior
restraint on speech that is unconstitutional under the unbridled-discretion doctrine.
The unbridled-discretion doctrine generally applies to licensing or permitting
schemes that require individuals to obtain permission before engaging in speech
activities. See, e.g., City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,
769–70 (1988). Under the doctrine, a licensing scheme that “allegedly vests
unbridled discretion in a government official over whether to permit or deny
expressive activity” can be challenged as facially unconstitutional. Id. at 755–56.
“To avoid unbridled discretion, the permit requirements should contain narrowly
drawn, reasonable, and definite standards to guide the official’s decision.”
Bloedorn v. Grube, 631 F.3d 1218, 1236 (11th Cir. 2011).
Here, Plaintiff contends that the definition of “conflict of interest,” which
includes any activity that conflicts with “the public interests of the University,”
fails to adequately constrain the University’s authority to prohibit outside
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activities. At first glance, Plaintiff’s argument is not entirely implausible. See
Lakewood, 486 U.S. at 769–70, 772 (holding that a licensing ordinance, which
gave the mayor authority to deny a permit if he deemed it “necessary and
reasonable,” was facially unconstitutional under the unbridled-discretion doctrine
because “nothing in the law as written require[d] the mayor to do more than make
the statement ‘it is not in the public interest’ when denying a permit application”).
On closer inspection, however, Plaintiff’s argument suffers from a critical
defect. Even assuming that the Policy applies to some speech activities, Plaintiff’s
unbridled-discretion claim fails because he has, at most, shown a “hypothetical
constitutional violation[] in the abstract.” Granite State Outdoor Advert., Inc. v.
City of St. Petersburg, 348 F.3d 1278, 1282 (11th Cir. 2003) (noting that “we
[were] reluctant to invalidate an entire legitimately-enacted ordinance absent more
of a showing it is as problematic as [the plaintiff] claims”). The Supreme Court
has held that, even when “unduly broad discretion” creates “a risk that [a licensing
official] will favor or disfavor speech based on its content,” such “abuse must be
dealt with if and when a pattern of unlawful favoritism appears, rather than by
insisting upon a degree of rigidity that is found in few legal arrangements.”
Thomas v. Chicago Park Dist., 534 U.S. 316, 323, 324–25 (2002); Wright v. City
of St. Petersburg, 833 F.3d 1291, 1299 (11th Cir. 2016) (“A discriminatory
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enforcement claim can be brought only if a pattern of selective enforcement
appears.”).
Here, Plaintiff submitted no evidence that the University has prohibited any
professor from engaging in any speech activity, much less that the University has
relied on a “public interest” rationale in doing so. Plaintiff’s failure to identify
even a single instance in which the University has determined that an outside
speech activity constitutes a prohibited “conflict of interest” is telling, as the trial
evidence indicated that the Policy’s language has been part of the CBA for well
over a decade. Indeed, Plaintiff’s claim that the “conflict of interest” definition is
facially overbroad is purely speculative. As the party with “the burden of
demonstrating, from the text of the law and from actual fact, that substantial
overbreadth exists,” Plaintiff has not shown “a realistic danger that the statute
itself will significantly compromise recognized First Amendment protections of
parties not before the Court.” Valencia Coll., 903 F.3d at 1232 (emphasis added)
(quotation marks omitted).
In short, we decline to require “a degree of rigidity that is found in few legal
arrangements” based on nothing more than a hypothetical fear that the University
might discriminate based on speech content when determining which outside
activities constitute a “conflict of interest.” Thomas, 534 U.S. at 325. Indeed,
Plaintiff could have tested the breadth of the conflict-of-interest prong by reporting
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the activity in question. At that point, the University could have decided whether
or not the conduct represented a conflict of interest and responded accordingly.3 It
was Plaintiff’s decision not to do so. Thus, Plaintiff’s challenge to the Policy’s
conflict-of-interest provision fails on the merits.
Given that Plaintiff’s constitutional challenges to the Policy asserted in
Claims 3 and 4 fail on the merits, his declaratory-judgment claim based on those
same grounds (Claim 5) fails as well. Accordingly, we affirm the district court’s
grant of summary judgment to the University on Claims 3–5.4
3 Indeed, the district court cited a lack of ripeness as an alternative ground for granting summary judgment to the University on Plaintiff’s as-applied challenge, found in Claim 4. By failing to address this ruling in his opening brief, Plaintiff has arguably abandoned Claim 4. Starship Enterprises of Atlanta, Inc. v. Coweta Cty., 708 F.3d 1243, 1252 n.12 (11th Cir. 2013). In any event, we conclude that the district court’s ripeness ruling was correct insofar as it addressed Plaintiff’s challenge to the University’s application of the Policy’s “conflict of interest” definition. “The ripeness doctrine protects federal courts from engaging in speculation or wasting their resources through the review of potential or abstract disputes.” Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997). Here, Plaintiff’s as-applied challenge to the conflict-of-interest provision was unripe because he failed to report his blog, thereby depriving the University of an opportunity to determine whether his blog speech constituted a prohibited “conflict of interest” under the Policy. See id. at 590 (holding that a First Amendment as-applied challenge to a zoning ordinance was unripe because the plaintiff did not satisfy its “obligation to obtain a conclusive response from someone with the knowledge and authority to speak for the City regarding the application of the zoning scheme to [the plaintiff’s] proposal”). In other words, the University never applied the conflict-of-interest provision and therefore never restricted Plaintiff’s speech. 4 On appeal, Plaintiff argues that we must reverse the district court’s grant of qualified immunity to two of the individual defendants on Claim 1 if we reverse the court’s summary judgment ruling on Claims 3–5. Because we affirm the district court’s summary judgment rulings, we obviously do not disturb the district court’s qualified-immunity rulings.
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B. Motions for Judgment as a Matter of Law and for a New Trial
Plaintiff not only attacks the district court’s grant of summary judgment as
to certain claims, but also challenges the jury’s verdict against him on the one
claim that went to trial: the retaliation claim. Arguing that no reasonable juror
could have found that his blog speech did not motivate the University to fire him,
Plaintiff argues that the district court erred in denying his motion for judgment as a
matter of law and abused its discretion in denying his motion for a new trial.
Plaintiff, however, cherry-picks the evidence supporting his theory of the case,
while ignoring the substantial body of evidence supporting the jury verdict.
Accordingly, his contentions on this point are unpersuasive.
We review de novo a district court’s denial of a renewed motion for
judgment as a matter of law, considering the evidence in the light most favorable to
the nonmoving party. EEOC v. Exel, Inc., 884 F.3d 1326, 1329 (11th Cir. 2018),
cert. denied sub nom. Travis v. Exel, Inc., 139 S. Ct. 1373 (2019). Judgment as a
matter of law is appropriate where a court finds that “a reasonable jury would not
have a legally sufficient evidentiary basis to find for [a] party on [an] issue.” Fed.
R. Civ. P. 50(a)(1). “We will not second-guess the jury or substitute our judgment
for its judgment if its verdict is supported by sufficient evidence.” Exel, 884 F.3d
at 1329 (quoting Lambert v. Fulton Cty., 253 F.3d 588, 594 (11th Cir. 2001)).
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We review for an abuse of discretion a denial of a motion for new trial.
Pensacola Motor Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1231 (11th
Cir. 2012). “A judge should grant a motion for a new trial when the verdict is
against the clear weight of the evidence or will result in a miscarriage of justice,
even though there may be substantial evidence which would prevent the direction
of a verdict.” Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183,
1186 (11th Cir. 2001) (quotation marks omitted). “Because it is critical that a
judge does not merely substitute his judgment for that of the jury, new trials should
not be granted on evidentiary grounds unless, at a minimum, the verdict is against
the great—not merely the greater—weight of the evidence.” Id. (quotation marks
omitted).
To establish that he was discharged in retaliation for protected speech,
Plaintiff had to prove, among other things, that his speech played a “substantial
part” in the University’s decision to terminate him. Anderson v. Burke Cty., 239
F.3d 1216, 1219 (11th Cir. 2001). The jury found that Plaintiff had failed to do so,
as it found that Plaintiff’s blog speech was not a motivating factor in the
University’s decision. We conclude that there was more than sufficient evidence
to support the jury’s verdict.
First, Vice Provost Diane Alperin and Dean Heather Coltman, who were
involved in the decision to fire Plaintiff, testified that the University terminated
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Plaintiff for insubordination, that the University would not have disciplined him if
he had submitted complete outside-activity reports, and that they never asked
Plaintiff to stop writing his blog. And contrary to Plaintiff’s argument, this “self-
serving testimony” was not “the only evidence [the University] offered in support
of its motivations.”
The record shows that the University waged a multi-year battle to get
Plaintiff to comply with his obligation to report outside activities. The
administration told Plaintiff to file an outside-activity form in 2013. He refused to
do so; instead he argued that he did not need to report his blog. Then, in 2015,
Plaintiff instigated a new conflict over the reporting requirements when he refused
to accept the “Terms and Conditions” of his annual academic assignment, one of
which terms included an acknowledgement that faculty must report outside
activities. Rather than agreeing to the “Terms and Conditions” and simply
reporting his blog, Plaintiff insisted that the University clarify in writing that his
blog could not constitute a conflict of interest.
Accordingly, in November 2015, the University sent Plaintiff a Notice of
Discipline, which gave him 48 hours to submit outside-activity reports and warned
that failure to do so would constitute insubordination. When Plaintiff did not
submit the forms and expressed confusion about the Policy, the University
extended the deadline, warning him that failure to comply with the new deadline
21 USCA11 Case: 18-10173 Date Filed: 11/16/2020 Page: 22 of 26
could result in termination. 5 But Plaintiff did not meet that deadline either.
Instead, Plaintiff untimely submitted incomplete outside-activity reports that failed
to identify his blog. Due to his failure to timely file complete outside-activity
reports, the University sent a final Notice of Proposed Discipline, which warned
Plaintiff that he would be terminated if he did not respond within ten days.
Astonishingly, Plaintiff did not respond and was terminated based on his own
default.6
Given the University’s multiple warnings that Plaintiff was required to file
outside-activity reports and Plaintiff’s repeated refusal to do so, there is little doubt
that Plaintiff was insubordinate. Indeed, Plaintiff privately confessed to his union
president that his conduct was “cut-and-dry” insubordination and that he had not
complied with University directives because he believed his tenure status would
insulate him against any discipline. Moreover, according to Vice Provost Alperin,
Plaintiff was not the only faculty member who was fired for insubordination after
failing to complete outside-activity reports. Given this evidence, and the
undisputed fact that the University had allowed Plaintiff to continue blogging for
5 Notably, while Plaintiff feigned ignorance as to whether he should report his Memory Hole Blog, his union president advised him to report the blog because it was “in line with what [Plaintiff] did professionally, the conspiracy theories, the media critiquing, media criticism, . . . [things] that were arguably an extension of what he did professionally.” 6 Plaintiff blamed his failure to respond on his union attorney’s incompetence.
22 USCA11 Case: 18-10173 Date Filed: 11/16/2020 Page: 23 of 26
over two years, a reasonable jury could have found that Plaintiff’s
insubordination—not his blog speech—was the University’s sole motivation for
firing him.
Although we agree that Plaintiff introduced some circumstantial evidence of
First Amendment retaliation, the jury was entitled to weigh the evidence. It did so,
and it found for the University. See McGinnis v. Am. Home Mortg. Servicing, Inc.,
817 F.3d 1241, 1254 (11th Cir. 2016) (holding that it is the jury’s role at trial to
weigh conflicting evidence and determine the credibility of witnesses). Because
sufficient evidence clearly supported the jury’s finding and because we cannot say
that the jury’s verdict was against the weight of the evidence, we affirm the
district court’s denial of Plaintiff’s renewed motion for judgment as a matter of law
and motion for a new trial.
C. Exclusion of the Faculty Senate Meeting Transcript
On appeal, Plaintiff argues that the court abused its discretion in excluding
an excerpt of the transcript of a September 2015 Faculty Senate meeting, which
excerpt captured a heated exchange over the Policy by faculty members. We
review evidentiary rulings for an abuse of discretion. U.S. Steel, LLC, v. Tieco,
Inc., 261 F.3d 1275, 1286 (11th Cir. 2001). “An error on an evidentiary ruling will
result in the reversal of a jury’s verdict only if a party establishes a substantial
prejudicial effect or a manifest injustice.” Id. We conclude that the district court
23 USCA11 Case: 18-10173 Date Filed: 11/16/2020 Page: 24 of 26
did not abuse its discretion when it denied admission of this transcript.
Accordingly, we affirm the court’s evidentiary ruling.
This Faculty Senate meeting transcript that Plaintiff sought to introduce at
trial reflected much antagonism by some faculty members as to the CBA Policy.
Several professors expressed confusion about what outside activities were
reportable under the Policy. Others took umbrage at the University’s follow-up
inquiries concerning certain activities that were reported. Vice Provost Alperin
commented that the University had been working to clarify the outside-activity
form. Finally, a faculty member who was running the meeting said that addressing
the professors’ concerns would be premature because he did not yet know the
relevant facts, but that their complaints could be the subject of a future meeting.
The district court ruled that the transcript contained a great deal of
inadmissible hearsay but, more importantly, that its admission would violate
Federal Rule of Evidence 403. The court reasoned that the angry remarks of some
of the professors, which did not concern Plaintiff’s specific case, would focus the
jury on the wisdom of the Policy, not on the question properly before the jury:
whether the University had terminated Plaintiff because of his blog or instead
because of his insubordination. As such, the transcript not only lacked probative
value, but it also created a substantial risk of unfair prejudice and jury confusion.
24 USCA11 Case: 18-10173 Date Filed: 11/16/2020 Page: 25 of 26
We find no error in the district court’s exclusion of this evidence pursuant to
Rule 403, as we agree with that court’s reasoning. Rule 403 permits a court to
“exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.
403.7 Given that the professors’ pique was the predominant focus of the Faculty
Senate meeting, there was a serious risk that admitting the transcript would cause
the University to suffer unfair prejudice, forcing it to defend its character against
inadmissible claims concerning other individuals, while distracting the jury from
their central obligation to decide the issue before them.
Moreover, the district court correctly found that statements regarding faculty
confusion had little probative value for the core issue at trial—whether the
University fired Plaintiff for his speech rather than for his admitted
insubordination. In seeking to introduce evidence of purported confusion by some
faculty members about the Policy, Plaintiff sought to corroborate his claim that he
was confused about the Policy, which he said might help to explain why he had
7 We reject Plaintiff’s argument that the professors’ complaints about the University’s enforcement of the Policy were relevant to show the effect of these remarks on Plaintiff and the University. As an initial matter, there is no evidence that Plaintiff was at the meeting. In any event, whether Plaintiff and the University knew that some professors disliked the Policy or that some professors indicated their confusion about the policy was irrelevant to whether the University fired Plaintiff because he wrote a blog.
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acted in an insubordinate manner. But whether or not another faculty member was
uncertain whether that member’s particular activity was reportable had nothing to
do with whether Plaintiff was confused about whether his own blogging activities
met the reporting requirement. Moreover, as the district court correctly noted, the
transcript evidence was cumulative of other evidence introduced by Plaintiff in
support of his claim that he was confused.
In short, we conclude that the district court did not abuse its discretion in
excluding the Faculty Senate meeting transcript.
III. CONCLUSION
After careful consideration, and with the benefit of oral argument, we affirm
the district court’s summary judgment rulings and its denial of Plaintiff’s post-trial
motions for judgment as a matter of law and for a new trial.
AFFIRMED.