Former Florida Atlantic U. professor could appeal after losing wrongful termination suit

By Sara McCleary | Dec 20, 2017

MIAMI – A former professor who says he was fired for comments he made on his personal blog has lost his wrongful termination suit but an appeal is possible.

MIAMI – A former professor who says he was fired for comments he made on his personal blog has lost his wrongful termination suit but an appeal is possible.

According to plaintiff James Tracy’s second amended complaint filed in U.S. District Court for the Southern District of Florida, Florida Atlantic University (FAU) terminated Tracy’s employment as a tenured assistant professor of communication in January 2016 as a result of comments he made on his personal blog about the December 2012 Sandy Hook Elementary School shooting.

“Following the incident, countless independent bloggers, journalists, and concerned citizens around the world, including Professor Tracy, blogged about questionable video and photographic evidence surfacing from Newtown, in addition to inconsistencies and anomalies in the official findings and reports ignored by national media,” said Tracy’s complaint.

Tracy alleges he was fired “in retaliation for his constitutionally protected speech, including  but not limited to the postings on his uncompensated personal blog,” and that his termination resulted in lost income, harm to his reputation, loss of his position, and out-of-pocket expenses including attorneys’ fees. He sought injunctive relief, including reinstatement to his position, compensatory damages, punitive damages, and costs of his lawsuit.

In its defense, FAU argued the blog contents were not the reason it terminated Tracy’s employment. 

“FAU officials falsely claimed Tracy failed to comply with a school policy called the ‘Conflict of Interest/Outside Activities’ Policy,” Louis Leo IV, founder of Florida Civil Rights Coalition, said to the Florida Record. “In reality, the policy was vague, confusing and widely misunderstood by the administrators tasked with enforcement of the policy, and, as a result, was contested by many faculty members as being used unlawfully and unconstitutionally to restrict faculty expression and speech.”

The jury returned a defense verdict Dec. 12, finding that Tracy’s blog speech was not the reason FAO terminated his employment. Leo believes the court’s exclusion of some evidence played a role in the decision.

“The jury was not permitted to see all of the evidence of the case,” he said. “For example, the district court excluded from trial crucial evidence of retaliation, including cease and desist letters sent to FAU from constitutional rights groups in defense of Professor Tracy’s blogging.

“The court also excluded evidence that showed the same FAU official who used the policy as a pretext to terminate Professor Tracy’s employment in 2015 had received multiple complaints about the unlawful use of the policy from other faculty members just months prior to disciplining Tracy for purported non-compliance with the policy.”

Leo also noted an audio recording of FAU’s vice provost admitting the forms related to the policy required clarification were not allowed as evidence during the trial.

 “The audio and transcript of this public record meeting was excluded from trial, and no witnesses were permitted to even reference this evidence during testimony,” Leo said. “Thus, the jury was not permitted to see or understand fully the facts and circumstances surrounding Professor Tracy’s firing.”

Leo said an appeal should be forthcoming.

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