Tracy v. Fla. Atl. Univ. Bd. of Trs.

• Decision Date: 16 November 2020
• Docket Number: No. 18-10173,18-10173
• Citation: 980 F.3d 799
• Parties: James TRACY, Plaintiff-Appellant, v. 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

980 F.3d 799

James TRACY, Plaintiff-Appellant,

v. 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.

No. 18-10173

United States Court of Appeals, Eleventh Circuit.

November 16, 2020

Steven Blickensderfer, Richard J. Ovelmen, Rachel Ann Oostendorp, Carlton Fields Jorden Burt, PA, Miami, FL, Matthew Benzion, Benzion Law Group, PA, Wilton Manors, FL, Louis Frank Leo, IV, Joel D. Medgebow, Medgebow Law, PA, Coconut Creek, FL, for Plaintiff-Appellant

Jack J. Aiello, Holly Griffin Goodman, Gerard J. Curley, Roger William Feicht, Edward A. Marod, Gunster Yoakley & Stewart, PA, West Palm Beach, FL, for Defendant-Appellee Florida Atlantic University Board of Trustees

Holly Griffin Goodman, Gerard J. Curley, Gunster Yoakley & Stewart, PA, for Defendants-Appellees Christopher Beetle

Holly Griffin Goodman, Gerard J. Curley, Roger William Feicht, Gunster Yoakley & Stewart, PA, for Defendants-Appellees John W. Kelly, Heather Coltman, Diane Alperin

Robert F. McKee, Melissa C. Mihok, Robert F. McKee, PA, Tampa, FL, for Defendants-Appellees Florida Education Association, Michael Moats

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 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.

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 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 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 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

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, 132 S.Ct. 2307, 183 L.Ed.2d 234 (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...