Stern v. Leath
| Decision Date | 31 March 2022 |
| Docket Number | 3:18-CV-807-WKW [WO] |
| Parties | DR. MICHAEL L. STERN, Plaintiff, v. STEVEN LEATH, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
In 1964, Marvin Pickering, a public high school teacher in Will County, Illinois, wrote a letter to his local newspaper's editor, criticizing the school board's allocation of funding for athletic programs to the detriment of academic integrity. That unpopular letter got him fired but ultimately won him and all public employees First Amendment freedoms. See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 574 (1968).
Fast forward a half century later to Lee County, Alabama, where Plaintiff Michael L. Stern, Ph.D.-a tenured economics professor at Auburn University-had gained a reputation as a vocal critic of the College of Liberal Arts' public administration major for its disproportionate number of scholarship student-athletes, particularly those in the football program. Dr. Stern believed that the university was behind the clustering of student-athletes into this athletic-friendly major and that its athletic department had fought to retain the major against its recommended closure. He began vocalizing these concerns in 2014 at Auburn University's senate meetings and in news publications with national and state readership. Dr. Stern's criticism attacking the integrity of the public administration major and the Auburn athletic program was unpopular among university administrators, including Defendants.
In May 2018, Dr. Stern was removed as chair of the Department of Economics, a position he had held since 2010. His removal as chair was the last straw in what Dr. Stern categorizes as a campaign of harassment by university officials to discourage him from exercising his First Amendment rights to speak out against what he discerned was a scandalous academic major protecting star athletes.
In this 42 U.S.C. § 1983 action, Dr. Stern brings First Amendment retaliation claims against five Auburn University officials: President Jay Gogue in his official capacity; former President Steven Leath in his individual capacity; former Provost William Hardgrave in his individual capacity; former Provost Timothy R. Boosinger in his individual capacity; and former Dean of the College of Liberal Arts Joseph Aistrup in his individual capacity.[1] Dr. Stern requests back pay, punitive damages, injunctive relief, and that “he be placed in the position in which he would have worked absent the Defendants' retaliatory conduct” or, alternatively, that he receive front pay. (Doc. # 47, at 50.)
A prior order granted summary judgment in favor of Defendants on the conspiracy claims in Counts 2 and 3. This opinion addresses Defendants' motion for summary judgment on the First Amendment retaliation claims (Count 1). (Doc. # 82.) The motion is fully briefed with accompanying evidentiary submissions. (Docs. # 83-84, 89-90, 96-97, 103-04.) Based upon careful consideration of the evidence, the arguments of counsel, and the relevant law, the motion is due to be granted in part and denied in part. The claims that survive are: Dr. Stern's First Amendment retaliation claim challenging his removal as chair on May 25, 2018, against Dean Aistrup in his individual capacity; Dr. Stern's First Amendment retaliation claim challenging his failure to receive an annual evaluation in 2017, against former Provost Boosinger in his individual capacity; and Dr. Stern's First Amendment retaliation claims challenging the denial of a raise for the 2018-19 academic year and of a one-time merit supplement in December 2018, against former Dean Aistrup and former Provost Hardgrave in their individual capacities.
These claims also remain pending against President Gogue in his official capacity for prospective injunctive relief.
The court exercises subject matter jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights jurisdiction). Personal jurisdiction and venue are not contested.
To succeed on a motion for summary judgment, the moving party must demonstrate “that there is no 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). The court views the evidence, and all reasonable inferences drawn from it, in the light most favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. Or a movant who does not have a trial burden of production can assert, without citing the record, that the nonmoving party “cannot produce admissible evidence to support” a material fact. Fed.R.Civ.P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee's note ( ). If the movant meets its burden, the burden shifts to the nonmoving party to establish-with evidence beyond the pleadings-that a genuine dispute material to each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).
The parties' familiarity with the evidence is presumed. Only those facts necessary for resolution of the pending motion for summary are set out here.
Dr. Stern is an associate professor in the Department of Economics in the College of Liberal Arts at Auburn University. (See Doc. # 83-1, at 8-9 (Pl. Dep.).)[2]He received tenure during the 2009-10 academic year. In 2010, the faculty in his department elected him as chair. He was reelected two more times, in 2013 and 2016 but was removed midway in his third term by Dean Aistrup. (Doc. # 83-1, at 110-17, 369.) Dr. Stern continues to serve as an associate professor in the department. (Doc. # 83-1, at 28-29.)
Dean Aistrup became the dean of the College of Liberal Arts in September 2013, having come to Auburn University from another institution. (Doc. # 83-3, at ¶ 1 (Aistrup Decl.).) Dean Aistrup reported directly to the provost, Auburn University's chief academic officer. (Doc. # 83-3, at ¶ 2; Doc. # 83-5, at ¶ 2 (Boosinger Decl.).) Dr. Boosinger served as Auburn's provost from June 2012 until his retirement in December 2017. In January 2018, Dr. Bill Hardgrave succeeded Dr. Boosinger as provost. (Doc. # 83-9, at ¶¶ 1-2 (Hardgrave Decl.).)
The provost reports to Auburn University's president. (Doc. # 83-3, at ¶ 2.) From 2007 until June 2017, Auburn's president was Dr. Jay Gogue. Dr. Steven Leath succeeded Dr. Gogue as Auburn's president in June 2017 and served in that position until his resignation in June 2019. (Doc. # 83-8, at ¶ 1 (Gogue Decl.); Doc. # 83-12, at ¶ 1 (Leath Decl.).) Dr. Gogue returned as Auburn's president shortly thereafter. (Doc. # 83-8, at ¶ 1.)
Some background is helpful here about the governance of the economics department and the professional relationships between Dr. Stern and Defendants. During President Gogue's tenure from 2007-17, Dr. Stern was among the faculty members who interacted regularly with President Gogue as President Gogue had a “fairly ‘open door'” policy. (Doc. # 83-8, at ¶ 5.) Dr. Stern frequently brought up matters with President Gogue about various aspects of Auburn University, and particularly about the Department of Economics, in person, by phone, or through email. As a result of their interactions, President Gogue learned that the working relationship between Dean Aistrup and Dr. Stern had become difficult. (Doc. # 83-8, at ¶¶ 5, 6.) That relationship become so strained that toward the end of President Gogue's 2007-17 presidency, Dr. Stern asked President Gogue to remove the Department of Economics from the College of Liberal Arts and to place it elsewhere within Auburn's organizational structure. To provide an interim solution while further consideration was given to the economics department's future, on January 6, 2017, President Gogue directed that Dr. Stern would begin reporting to the provost's office, specifically to Associate Provost Emmett Winn, instead of to Dean Aistrup. This temporary change administratively moved the economics department out of the College of Liberal Arts. Provost Boosinger was not in favor of the new arrangement. (Doc. # 83-8, at ¶ 8; Doc. # 83-5, at ¶ 25.)
When President Leath became the new president in June 2017, Provost Boosinger recommended that the economics department return to the College of Liberal Arts. President Leath agreed, and in July 2017, he reinstated the Department of Economics to the College of Liberal Arts with the normal chair-to-dean chain of command restored. (Doc. # 83-12, at ¶¶ 4-6; Doc. # 83-5, at ¶¶ 25, 27, 28.) The Department of Economics remained under the reporting structure of the College of Liberal Arts after Hardgrave succeeded Boosinger as provost. (Doc. # 83-12, at ¶ 11.)
This action proceeds against Leath, Hardgrave, Boosinger, and Aistrup in their individual capacities. President Gogue is sued...
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