Opinion
Case No.: 1:22cv75-MW/HTC
2023-06-21
Richard BURT, Plaintiff, v. W. Kent FUCHS, et al., Defendants.
Richard Errol Johnson, Tallahassee, FL, for Plaintiff. Michelle Bedoya Barnett, Samantha Giudici, Alexander Degance Barnett PA, Jacksonville, FL, for Defendants.
Richard Errol Johnson, Tallahassee, FL, for Plaintiff. Michelle Bedoya Barnett, Samantha Giudici, Alexander Degance Barnett PA, Jacksonville, FL, for Defendants. ORDER GRANTING AMENDED MOTION TO DISMISS Mark E. Walker, Chief United States District Judge
This is an employment retaliation case implicating rights under the First and Fourteenth Amendments. On granting Plaintiff's motion for rehearing on this Court's order granting Defendants' first motion to dismiss, ECF No. 26, this Court required the parties to address whether either Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), or its carve-out for "expression related to academic scholarship or classroom instruction," id. at 425, 126 S.Ct. 1951, applies to Plaintiff's free-speech claim. This Court has now considered, without hearing, Defendants' amended motion to dismiss, ECF No. 27, and Plaintiff's response, ECF No. 30. For the reasons that follow, Defendants' motion, ECF No. 27, is GRANTED.
I
This Court begins with the facts and relevant procedural history.
A
In deciding Defendants' motion to dismiss, this Court accepts Plaintiff's factual allegations as true and construes them in the light most favorable to Plaintiff. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). Plaintiff is a tenured full professor of English at the University of Florida (UF). ECF No. 1 ¶ 26. Around August 9, 2021, Plaintiff learned that faculty could teach remotely for the first three weeks of the upcoming semester. Id. ¶ 27. On August 13, 2021, however, Defendant W. Kent Fuchs, UF's president, issued a memorandum notifying UF faculty that classes could no longer be taught remotely for the semester. Id. ¶¶ 6, 30.
On August 16, 2021, Defendant Sidney Dobrin, chair of the UF's Department of English, sent an e-mail "offering a remote option" for teaching courses. Id. ¶¶ 9, 38. That same day, Defendant Dobrin scheduled a department meeting for August 18, 2021, on the topic of Defendant Fuchs's August 13, 2021, memorandum. Id. ¶ 31. The meeting was not mandatory, and Plaintiff did not attend. Id. ¶¶ 32, 71. According to UF Investigator Petra Pindar's report of the meeting, Defendant Dobrin "affirmed that remote teaching was no longer an option for faculty and that they should plan to move forward with face-to-face instruction." Id. ¶ 33. At some point that same day, Plaintiff responded to Defendant Dobrin's e-mail "offering a remote option," stating, "I will be providing a remote option." Id. ¶ 38.
On August 19, 2021, Defendant Dobrin e-mailed all faculty in the Department of English, stating that he could not provide minutes of the prior day's department meeting because "[t]he ground is shifting too often for me to convey policies in writing and be comfortable that those policies will remain constant." Id. ¶ 35. Defendant Dobrin also stated, "I recognize this is frustrating and that it makes planning for classes on Monday more than complicated." Id. ¶ 36. At some point that same day, Defendant Dobrin responded to Plaintiff's e-mail about a "remote option," simply thanking him for the information. Id. ¶ 39.
On August 22, 2021, Defendant Dobrin sent another e-mail to all faculty in the Department of English, stating, "Please remember that if you plan to provide a remote option for your students, you need to notify me and need to be sure that the option is identified on your syllabus and Canvas page by the end of the day tomorrow (Monday, August 22)." Id. ¶ 40.
"Canvas" is an online platform providing homepages for classes at UF. ECF No. 1 ¶ 28.
On August 23, 2021, Plaintiff e-mailed the students in his two courses to inform them that his classes would be held remotely. Id. ¶ 41. Plaintiff attached to that e-mail a statement from the president of UF's faculty union criticizing UF's lack of compliance with Centers for Disease Control and Prevention guidelines on COVID-19 and calling for improvements to UF's COVID-19 response. Id.
That same day, Defendant David E. Richardson, the Dean of the College of Liberal Arts and Sciences at UF, received a complaint from one of Plaintiff's students regarding Plaintiff's decision to teach class remotely. Id. ¶¶ 7, 42. Defendant Richardson forwarded the student complaint to Defendant Dobrin, who " 'reminded' Plaintiff that UF policy is 'clear' that all classes were in person . . . ." Id. ¶¶ 42, 44. Plaintiff asked Defendant Dobrin whether Plaintiff should send an e-mail correcting his earlier statement and stating that the classes would meet in person. Id. ¶ 45. Later that day, having received no response, Plaintiff drafted an e-mail to that effect and sent it to Defendant Dobrin for approval. Id. ¶ 46. Notwithstanding later disciplinary documents' account that Defendant Dobrin, on receiving the e-mail, expressly told Plaintiff not to do anything, Plaintiff received no such directive. Id. ¶ 47.
Later that same day, still having heard nothing from Defendant Dobrin, Plaintiff sent a second e-mail "stating that he had been ordered, by his Chair, against his will, to teach his classes face-to-face . . . ." Id. ¶ 48. This e-mail then stated, "You may stop reading here. If you want to learn what happened, you may keep reading. YOU ARE NOT REQUIRED TO KEEP READING. YOU MAY STOP HERE." Id. Plaintiff then included a reproduction of the e-mail exchanges between Plaintiff and Defendant Dobrin on the subject. Id.
On August 24, 2021, about fifteen minutes before Plaintiff's first class, Defendant Dobrin e-mailed Plaintiff to cancel his classes for the day, stating, "We will need to address this situation before you meet your students again." Id. ¶ 49. On August 25, 2021, Defendant Dobrin informed Plaintiff that his courses had been assigned to another professor. Id. ¶ 52.
On August 30, 2021, at Defendant Richardson's request, Defendant Mary Watt, an Associate Dean of UF's College of Liberal Arts and Sciences, placed Plaintiff on paid administrative leave pending investigation. Id. ¶¶ 8, 53, 58. The investigation, conducted by Investigator Pindar, initially concerned only whether Plaintiff had engaged in disruptive behavior prohibited under UF Regulation 1.008. Id. ¶¶ 56-57. At some point after Investigator Pindar interviewed Plaintiff, however, the investigation expanded, to include faculty misconduct, prohibited under UF Regulation 7.048, and a failure of faculty to treat colleagues, staff, and students civilly, in violation of Collective Bargaining Agreement (CBA) Article 10.3(b). Id. ¶¶ 59-60. Plaintiff received no notice of the expanded investigation and no additional opportunity to provide input or rebut the charges of which he was accused. Id. ¶ 59. Plaintiff characterizes the investigation as a "kangaroo" proceeding that "fabricated a factual record . . . ." Id. ¶ 102.
Investigator Pindar issued her Investigation Report on November 8, 2021, and found that all three charges were substantiated. Id. ¶ 62. Regarding Plaintiff's violation of UF Regulation 1.008, the Investigation Report cited both of Plaintiff's e-mails to students (setting out the remote format, then setting out the in-person format, as well as the attached messages and commentary), Plaintiff's failure to attend the August 18, 2021, department meeting (which the Investigation Report described as mandatory), and Plaintiff's failure to obey his supervisors' directives. Id. ¶¶ 67, 69, 71. The Investigation Report also stated that Plaintiff had been dishonest in claiming a good-faith belief, at the time he sent the first e-mail, that the option to hold class remotely was available. Id. ¶ 70.
Regarding Plaintiff's violation of UF Regulation 7.048, the Investigation Report cited Plaintiff's absence from the August 18, 2021, department meeting and his alleged insubordination in sending the second e-mail after Defendant Dobrin had apparently directed Plaintiff not to do anything. Id. ¶¶ 72-73. The Investigation Report also cited as insubordination and faculty misconduct Plaintiff's repeated use of the title "Herr Doktor Rev. Professor Blind Burt Ph.4KUltaHD, Department of loser Studies, Pharmakonology, and Cosmic Criticism" in his e-mail signature block. Id. ¶ 73.
Regarding Plaintiff's violation of CBA Article 10.3(b), the Investigation Report stated that Plaintiff's two e-mails to the students "could be perceived as adversarial and argumentative." Id. ¶ 75. It characterized the e-mails as coming "from a place of aggravation and anger at not being able to teach remotely." Id.
In a letter dated January 19, 2022, in response to the Investigation Report, Defendants Richardson and Dobrin notified Plaintiff of a proposal that he be suspended without pay for five days for "misconduct." Id. ¶¶ 81, 93. The letter also directed Plaintiff to "[1] comply with all university rules and all directions of the Chair, Dean and university leadership; [2] make all student-related email communications professional and applicable to the immediate discussion; [3] use the correct signature block; and [4] take courses in email effectiveness and cultivating judgment." Id. ¶ 82. According to the letter, "any future violations will result in the termination of Plaintiff's employment as a tenured professor." Id. ¶ 83. According to Plaintiff, these requirements constitute a "permanent probation" and set him up "to be fired on some pretext." Id. ¶¶ 83, 102.
The letter described Plaintiff's e-mails to students as "improper and unprofessional in content and form" and labeled as "provocative and adversarial" his statement that he had been ordered, by his chair and against his will, to teach in person. Id. ¶ 81. The letter provided as "the final reasons for the adverse action" Plaintiff's attachment of his e-mail exchange with Defendant Dobrin to his second e-mail to students and his use of the aforementioned title in the e-mail signature block. Id.
Plaintiff alleges two violations of his constitutional rights. First, Plaintiff argues that his two e-mails are protected speech and that his punishment for that speech violates the First Amendment, as incorporated through the Fourteenth Amendment. ECF No. 1 ¶ 101. Second, Plaintiff argues that Defendants—in ordering his "permanent probation" and proposed suspension consequent to the e-mail incident—deprived him of property without due process in violation of the Fourteenth Amendment, because the investigation into, and hearing on, the incident lacked procedural safeguards. Id. ¶ 102. Plaintiff sues Defendant Fuchs in his official capacity for equitable relief and the other three Defendants in their personal capacities for money damages. Id. ¶¶ 6-9.
B
This Court now turns to the relevant procedural history. Defendants initially moved to dismiss this case on June 3, 2022, raising four arguments. ECF No. 11. First, regarding the alleged First Amendment violation, Defendants argued that Plaintiff spoke neither as a citizen nor on a matter of public concern and that even if he did, Defendants had adequate justification for proscribing Plaintiff's speech. Id. at 5-13. Second, Defendants argued that Plaintiff had pleaded no independent Fourteenth Amendment substantive due process claim—only a First Amendment claim as incorporated through the Fourteenth. Id. at 13-14. Third, Defendants argued that the three Defendants sued in their individual capacities were entitled to qualified immunity. Id. at 14-20. Fourth, Defendants argued that Plaintiff was not entitled to injunctive relief on his First Amendment or procedural due process claim. Id. at 20-24. Regarding the procedural due process claim, Defendants asserted that Plaintiff had failed to allege a lack of adequate state remedies and an irreparable injury. Id. at 24.
This Court granted the motion to dismiss, focusing its analysis on Plaintiff's First Amendment claim. ECF No. 22. This Court held that because Plaintiff spoke in his e-mails in furtherance of his responsibilities as a professor, he spoke pursuant to his official duties as a public employee. Id. at 6-8. The First Amendment, this Court held, did not protect that speech. Id.
In reaching that conclusion, this Court relied on Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and its progeny. This Court did not address, however, whether or how the carve-out Garcetti left for "expression related to academic scholarship or classroom instruction," 547 U.S. at 425, 126 S.Ct. 1951, applied to this case—namely, a professor's gratuitous commentary and attachments in an e-mail to his class about the class format. Nor did this Court address whether Plaintiff had sufficiently alleged a procedural due process claim. This Court granted Plaintiff's motion for rehearing to consider both issues. ECF No. 26 at 2. To that end, this Court directed Defendants to file an amended motion to dismiss, and Plaintiff to file a response, that addressed Garcetti's "academic freedom" carve-out. Id. at 2-3. Both parties have complied.
II
In their amended motion to dismiss, Defendants attack Plaintiff's free-speech and procedural due process claims and assert that the Defendants sued individually are entitled to qualified immunity as to Plaintiff's free-speech claim. This Court will address all three arguments.
This Court will not address, however, three of Defendants' other arguments. First, Defendants argue that Plaintiff's substantive due process claim is subsumed within his First Amendment claim and should be dismissed. ECF No. 27 at 23-24. Because Plaintiff has stated that he did not raise a substantive due process claim, ECF No. 30 at 26, this Court does not reach Defendants' argument for dismissing it.
Second, Defendants argue that Plaintiff has failed to state a claim for equitable relief against Defendant Fuchs, but in making that argument, they merely reiterate that Plaintiff has failed to plead a First Amendment violation. ECF No. 27 at 30-31. Because this Court agrees with Defendant that Plaintiff's claims should be dismissed, this Court declines to discuss Plaintiff's claim for equitable relief separately.
Third, Defendants argue that the Defendants sued individually are also entitled to qualified immunity as to Plaintiff's procedural due process claim. As this Court discusses below, Plaintiff has insufficiently pleaded that a violation of his procedural due process rights has occurred, but this Court grants Plaintiff leave to amend his complaint to allege that no adequate state remedies are available. If Plaintiff amends his complaint accordingly, Defendants are free to re-raise the issue of qualified immunity as to Plaintiff's procedural due process claim.
Before moving to the arguments this Court will address, this Court sets out the applicable standard. "To withstand a motion to dismiss under Rule 12(b)(6), a complaint must include 'enough facts to state a claim to relief that is plausible on its face.' " Hunt, 814 F.3d at 1221 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A 'claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' " Hunt, 814 F.3d at 1221 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). "Plaintiff's allegations must amount to 'more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.' " Hunt, 814 F.3d at 1221 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
III
Now to the merits. This Court takes in turn Defendants' arguments as to Plaintiff's free-speech claim, the individual Defendants' entitlement to qualified immunity as to Plaintiff's free-speech claim, and Plaintiff's procedural due process claim.
A
Regarding Plaintiff's free-speech claim, Defendants argue that Garcetti's carve-out for "speech related to scholarship or teaching" does not apply here, because Plaintiff's e-mails (the speech for which he was disciplined) related to scheduling and the format of classroom instruction as opposed to teaching or scholarship. See ECF No. 27 at 4-7, 9-12. Defendants assert that, as a result, Plaintiff's speech—made pursuant to his responsibilities as a public employee and on a matter of internal concern—is not protected under the First Amendment. See id. at 12-17. Even if Plaintiff had spoken as a citizen as opposed to a public employee, Defendants argue, they had adequate justification for their treatment of Plaintiff. See id. at 17-19; see also id. at 19-23 (arguing that UF's interests in controlling its employee's speech outweigh Plaintiff's free-speech interests here).
Plaintiff, in response, argues that this case falls within Garcetti's carve-out and urges this Court to apply the analysis set out in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See ECF No. 30 at 20-21. Under that analysis, Plaintiff asserts, his speech is protected, because he spoke as a citizen on a matter of public concern (namely, UF's response to an ongoing pandemic) and because his interests in free speech outweigh UF's interests here. See id. at 8-11, 20-26. Both parties attempt to marshal to their cause Fourth-, Fifth-, Sixth-, and Ninth-Circuit cases interpreting Garcetti.
As this Court discusses below, Garcetti, not its carve-out, controls here. Plaintiff's e-mails related not to scholarship or teaching, but to the logistical task of setting a class format. Because Plaintiff spoke in his capacity as a public employee, his e-mails were not protected speech. His editorializing and addition of information superfluous to the task of setting class format do not change that conclusion. This Court first outlines the Supreme Court's First Amendment jurisprudence. Next, this Court explains why Garcetti provides the proper analysis here. That explanation examines the same circuit cases the parties have cited. Finally, this Court applies the Garcetti analysis to this case's facts.
1
A court considering a First Amendment challenge brought by a public employee must ask two questions. First, did the employee speak (a) "as a citizen" and (b) "on a matter of public concern"? Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (citing Pickering, 391 U.S. at 568, 88 S.Ct. 1731). Second, if the answer to the first question is yes, did "the relevant government entity ha[ve] an adequate justification for treating the employee differently from any other member of the general public"? Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (citing Pickering, 391 U.S. at 568, 88 S.Ct. 1731). If the answer to the first question is no, however, "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (citing Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).
In Garcetti, the Supreme Court narrowed the circumstances under which a public employee can speak "as a citizen" for purposes of the first question. The Supreme Court held that "[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer disciplines." Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. Thus, "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Id. at 421-22, 126 S.Ct. 1951. "It simply reflects the exercise of employer control over what the employer itself has commissioned or created." Id. at 422, 126 S.Ct. 1951 (citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ("[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.")).
But the Supreme Court expressly declined to "decide whether [its] analysis . . . would apply in the same manner to a case involving speech related to scholarship or teaching." Id. at 425, 126 S.Ct. 1951. In doing so, the Court acknowledged that "expression related to academic scholarship or classroom instruction [arguably] implicates additional constitutional interests that are not fully accounted for by [the] Court's customary employee-speech jurisprudence." Id.; see also id. at 438, 126 S.Ct. 1951 (Souter, J., dissenting) ("I have to hope that today's majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to . . . official duties.' " (quoting Grutter v. Bollinger, 539 U.S. 306, 329, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003))). The parties here disagree on the scope of this carve-out.
2
Garcetti's majority did not exempt official speech in the field of education generally—only in cases "involving speech related to scholarship or teaching," particularly "classroom instruction." Furthermore, Justice Souter's concern, to which the Garcetti majority responded, centered on "academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to . . . official duties.' " Id. at 438, 126 S.Ct. 1951 (Souter, J., dissenting) (quoting Grutter, 539 U.S. at 329, 123 S.Ct. 2325) (emphasis added). Thus, both the carve-out and the reasoning that prompted the carve out leave within Garcetti's ambit professors' speech—including classroom speech—not implicating "academic freedom" or "related to scholarship or teaching."
The Eleventh Circuit has yet to specifically address Garcetti's carve-out, but this Court declines Plaintiff's invitation to read Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022)—a case about student speech—as providing "a safe bet that the Eleventh Circuit will follow its . . . sisters in finding an academic exception to Garcetti that fits [Plaintiff]." ECF No. 30 at 19-20. On the contrary, the cases those "sisters"—the Fourth, Fifth, Sixth, and Ninth Circuits—decided demonstrate that Garcetti's carve-out does not apply.
This Court begins with the Fifth Circuit case because it relied in part on precedent that also binds this Court. In Buchanan v. Alexander, the Fifth Circuit held that the First Amendment did not protect a professor's "use of profanity and discussion of her sex life and the sex lives of her students" during classroom instruction and training sessions. 919 F.3d 847, 850-51, 853 (5th Cir. 2019). The Fifth Circuit did not once mention Garcetti. Instead, quoting a Fifth Circuit case from 1980, it affirmed that "classroom instruction is protected activity" and assessed the professor's claim under Pickering and Connick. Id. at 852-53 (quoting Kingsville Indep. Sch. Dist. v. Cooper, 611 F.2d 1109, 1113 (5th Cir. 1980)). In Buchanan, thus, the professor's speech came during teaching sessions, when she was tasked with educating students about her scholarly field.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Here, Plaintiff's speech—e-mails sent to students in order to coordinate logistics for upcoming classes, along with information superfluous to that coordination—was not teaching or uttered in a teaching setting, such as a lecture or discussion (whether in person, over Zoom, via an online forum, or otherwise). Consequently, Buchanan does not support Plaintiff's argument that Garcetti does not apply here.
The Fourth, Sixth, and Ninth Circuits have also held that Garcetti does not apply to professors' speech related to teaching or scholarship. They have also discussed where Garcetti does apply in the university setting.
In Adams v. Trustees of the University of North Carolina-Wilmington, the Fourth Circuit observed, "There may be instances in which a public university faculty member's assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching." 640 F.3d 550, 563 (4th Cir. 2011). "In that circumstance," the Fourth Circuit commented, "Garcetti may apply to the specific instances of the faculty member's speech carrying out those duties." Id.
Similarly, in Demers v. Austin, the Ninth Circuit enumerated types of speech unrelated to scholarship or teaching. These included proposals "to allocate one additional teaching credit for teaching a large class instead of a seminar, to adopt a dress code that would require male teachers to wear neckties, [and] to provide a wider range of choices in the student cafeteria." 746 F.3d 402, 415 (9th Cir. 2014). The Ninth Circuit presented this speech as a contrast to the plaintiff's speech—namely, circulating to local media and university and department administrators a plan, based on his expertise as a mass-communication professor, to reconnect his department and its students "to the real world of professional communicators." Id. at 407, 415. The Ninth Circuit held this speech to be "related to scholarship or teaching," such that Garcetti did not apply. Id. at 414.
Most recently, in Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021), the Sixth Circuit, reviewing a grant of the state's motion to dismiss, acknowledged that Garcetti's carve-out does not apply to "non-ideological ministerial task[s]" in classrooms, such as calling roll at the beginning of class. Id. at 507. At the same time, it held Garcetti inapplicable where a state university professor had refused, allegedly for religious and philosophical reasons, to use a student's preferred title and pronouns when leading discussion in his political philosophy class. Id. at 504-06. Rejecting the state's argument that the professor's pronoun use was unrelated to classroom instruction, the Sixth Circuit observed that "choices about how to lead classroom discussion shape the content of the instruction enormously." Id. at 506. It added that the professor's "choices touch[ed] on gender identity," which, according to the complaint, "often c[a]me[ ] up during class discussion in [the professor's] political philosophy courses." Id. (quotation omitted).
Plaintiff's speech here—e-mails about class logistics with gratuitous commentary added—tends toward what the Fourth, Sixth, and Nine Circuits have deemed unrelated to teaching or scholarship. Plaintiff sent them as part of his "non-ideological ministerial" responsibility to carry out "university policy" on class meetings by communicating the mode of those meetings. See Meriwether, 992 F.3d at 507; Adams, 640 F.3d at 563. Plaintiff's editorializing about that responsibility in his e-mails does not convert them to teaching or scholarship.
Relatedly, Plaintiff alleges no connection at all between his field of English and any content in his e-mails. In this regard, his First Amendment claim stands in stark contrast to those in Meriwether, where the professor alleged his pronoun use implicated the same questions of gender identity that frequently arose in his course, and in Demers, where the professor drew upon his scholarly expertise to propose a sweeping change in his department's approach to its field. Meriwether, 992 F.3d at 506; Demers, 746 F.3d at 415.
Finally, this Court recalls that it has recognized Garcetti's carve-out before. In Pernell v. Florida Board of Governors of State University System, professors and students challenged statutes and regulations barring professors from espousing various viewpoints in their "training or instruction" of "student[s] . . . ." Case Nos. 4:22cv304-MW/MAF, 641 F.Supp.3d 1218, 1231-33 (N.D. Fla. Nov. 17, 2022) (citing § 1000.05(4)(a), Florida Statutes (2022); Regulation 10.005, Prohibition of Discrimination in University Training or Instruction). This Court declined to apply Garcetti because "training or instruction" of university "student[s]" falls squarely within Garcetti's carve-out for "speech related to scholarship or teaching." Again, that is not the case here.
In sum, an academic exception to Garcetti exists, but it does not encompass Plaintiff's e-mails. Therefore, this Court must apply Garcetti to this case.
3
Applying Garcetti reveals that Plaintiff spoke pursuant to his duties as a public employee, not as a citizen. As mentioned above, Garcetti provides that the First Amendment does not protect "speech that owes its existence to a public employee's professional responsibilities." 547 U.S. at 421-22, 126 S.Ct. 1951. That clause, however, "must be read narrowly to encompass speech that an employee made in accordance with or in furtherance of the ordinary responsibilities of her employment, not merely speech that concerns the ordinary responsibilities of that employment." Alves v. Bd. of Regents, Univ. Sys. of Ga., 804 F.3d 1149, 1162 (11th Cir. 2015) (construing Lane v. Franks, 573 U.S. 228, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014)). In other words, speech by a public employee is citizen speech unless "the speech at issue itself owes its existence to the employee's professional responsibilities." Alves, 804 F.3d at 1161 (citations omitted). Whether a public employee speaks "in accordance with or in furtherance of [her] ordinary responsibilities" is a question of law for the court to decide. Id. at 1159.
"Garcetti and its progeny require a functional review of an employee's speech in relation to her duties or responsibilities" to determine whether she spoke in her official capacity. Id. at 1164 (citing Abdur-Rahman v. Walker, 567 F.3d 1278, 1285 (11th Cir. 2009)). Under that analysis, even speech that "does not bear the hallmarks of daily activity" can be government speech. Alves, 804 F.3d at 1165. For example, clinical institute supervisors spoke pursuant to their responsibilities when they penned a memorandum airing professional grievances about the institute director. Id. Although writing the memorandum was an extraordinary event, the supervisors had raised their concerns "in the course of performing . . . their ordinary roles as coordinators, psychologists, committee members, and supervisors," and the memorandum could not "reasonably be divorced from those responsibilities." Id. at 1164-65 (citing Abdur-Rahman, 567 F.3d at 1283).
A functional review here reveals that Plaintiff spoke pursuant to his official duties. Plaintiff sent his e-mails to establish the format of his English courses, which he is employed to teach, and sent them only to those students he was responsible for teaching. Plaintiff may have, in those same e-mails, also criticized UF's COVID-19 restrictions and pointed out an internal administrative miscommunication. Even so, his editorializing does not change the conclusion that his e-mails "owe[ ] [their] existence" to his professional responsibility to teach English courses. See Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951; Alves, 804 F.3d at 1161 (citation omitted).
Plaintiff seeks to portray his sending the e-mails as "an extraordinary one-off event," arguing that his "telling students how and where to attend a class was not part of his or any professor's job," but the responsibility of UF's "scheduling professionals." ECF No. 30 at 22. Even if it is "extraordinary" for a professor to send e-mails about class logistics, however, he sent them "in the course of performing . . . [his] ordinary role" as a course instructor, and they cannot "reasonably be divorced from th[at] responsibilit[y]." See Alves, 804 F.3d at 1164-65 (citation omitted). Thus, Plaintiff still sent these e-mails in his capacity as a public employee, not as a citizen.
Plaintiff also urges this Court to conceive of his e-mails as having two portions—to wit, an official portion setting the format of his class meetings, constituting government speech, and a citizen portion reacting as an individual to UF's choices of those formats. ECF No. 30 at 8-9. He asserts that just as the First Amendment protects individuals speaking simultaneously as citizens and public employees, so, too, must it protect citizen speech mixed with government speech. Id. (citing Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976)). And because "[i]t was the citizen part of [Plaintiff's] speech that caused the discipline[,]" Defendants violated Plaintiff's First Amendment rights.
Plaintiff's argument incorrectly blends the separate elements of speech "as a citizen" and speech "on a matter of public concern." The case Plaintiff cites in support, it is true, involved a teacher speaking to a school board "not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of government." Madison Jt. Sch. Dist. No. 8, 429 U.S. at 174-75, 97 S.Ct. 421. The teacher, however, was not speaking pursuant to his duties as an employee, but at a public school-board meeting as an undesignated member of the union with whom the school board was negotiating. That fact separates Madison Joint School District No. 8 from Garcetti, which holds "speech that owes its existence to a public employee's professional responsibilities" to be unprotected. Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951.
Moreover, if Plaintiff's argument were the law, it would render Garcetti a nullity. If Garcetti's purpose is to allow the government to control its own communications, see id. at 422-23, 126 S.Ct. 1951, parsing government communications for, and extending First Amendment protection to, citizen speech gratuitously sprinkled in would render Garcetti's holding worthless.
This might be a different case if Plaintiff had criticized UF's COVID-19 measures in a conversation with individuals who happened to be his students at an event unrelated to his class, such as a community art exhibition. There, Plaintiff, though still a public employee, would not have been speaking pursuant to his official duties. Likewise, this might be a different case if Plaintiff were a professor of infectious diseases at the UF College of Medicine and, in a lecture on the effectiveness of state government policies in controlling the spread of infectious diseases, quoted experts criticizing UF's COVID-19 policies as ineffective. Plaintiff would have given such a lecture pursuant to his duties as a public employee, but the speech would relate to scholarship or teaching and, thus, fall within Garcetti's carve-out. Instead, this case is about Plaintiff's editorializing and addition of gratuitous information in a logistical e-mail he sent in his capacity as a professor. The First Amendment does not protect such speech. Plaintiff's First Amendment claim is due to be dismissed.
This Court now turns to Defendants' arguments on qualified immunity for Defendants Richardson, Watt, and Dobrin as to Plaintiff's free-speech claim.
B
Defendants argue that Defendants Richardson, Watt, and Dobrin—all sued in their individual capacities—are entitled to qualified immunity. ECF No. 27 at 24. Although Plaintiff does not dispute that these Defendants acted within the scope of their discretionary duties, Plaintiff counters that their conduct violated clearly established constitutional rights. ECF No. 30 at 26-27.
"In order to receive qualified immunity, the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Carollo v. Boria, 833 F.3d 1322, 1328 (11th Cir. 2016) (quotation omitted). Then, "the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Id. (quotation omitted). "To meet this burden, a plaintiff must establish that (1) his complaint pleads a plausible claim that the defendant violated his federal rights (the 'merits' prong), and that (2) precedent in this Circuit at the time of the alleged violation 'clearly established' those rights (the 'immunity' prong)." Id. (citations omitted). "A Government official's conduct clearly violates established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates the right." Id. at 1333 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)) (cleaned up).
"Our Circuit uses two methods to determine whether a reasonable official would understand that his conduct violates a constitutional right." Carollo, 833 F.3d at 1333 (citation omitted). The first asks whether "binding opinions from the United States Supreme Court, the Eleventh Circuit Court of Appeals, and the highest court in the state where the action is filed gave the defendant fair warning that his treatment of the plaintiff was unconstitutional." Id. (cleaned up). "The second asks whether a public official's conduct lies so obviously at the very core of what federal law prohibits that the unlawfulness of the conduct was readily apparent to the public official, notwithstanding the lack of fact-specific case law on point." Id. (cleaned up). Notably, the Eleventh Circuit has repeatedly described as "clearly established" law the principle "that an employer may not demote or discharge a public employee for engaging in protected speech . . . ." Boyce v. Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007) (citations omitted).
Here, neither specific case law nor the core of federal constitutional values clearly establishes that Plaintiff's e-mails were protected speech. Indeed, this Court has already determined that Plaintiff's speech was not protected. Even assuming, arguendo, that this Court's determination is wrong, the issue Plaintiff raises, in light of public employee free-speech jurisprudence, does not present a readily apparent violation of Plaintiff's rights.
Again, this Court does not determine the individual Defendants' qualified immunity as to Plaintiff's procedural due process claim. As this Court discusses next, Plaintiff's procedural due process claim fails, but this Court grants Plaintiff leave to amend his complaint as to that claim. If Plaintiff amends his complaint accordingly, Defendants are free to raise the issue of qualified immunity again.
C
Defendants attack Plaintiff's procedural due process claim on three grounds. ECF No. 27 at 31. First, they assert that Plaintiff failed to allege that he had no adequate state remedy available to him. Id. at 32. Second, they assert that Plaintiff failed to allege that the disciplinary process deprived him of a cognizable protected interest. Id. at 33. Finally, they assert that Plaintiff has not alleged irreparable injury. Id. at 33-34. Because this Court agrees with Defendants' first argument, it does not reach the other two.
"The right to procedural due process ensures, in general, that an individual is afforded adequate safeguards before he is deprived of life, liberty, or property." Hollis v. W. Acad. Charter, Inc., 782 F. App'x 951, 957 (11th Cir. 2019) (citing McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir. 1994)). At the same time, "in procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (citation omitted) (emphasis in original). Consequently, "a procedural due process violation is not complete 'unless and until the State fails to provide due process' "; only then "does a constitutional violation actionable under section 1983 arise." McKinney, 20 F.3d at 1557 (quoting Zinermon, 494 U.S. at 123, 110 S.Ct. 975). So long as state remedies remain unpursued, a section 1983 claim simply "d[oes] not exist." Laskar v. Peterson, 771 F.3d 1291, 1300 (11th Cir. 2014).
Here, Plaintiff alleges that he was subjected to a "kangaroo" investigative process that "fabricated a factual record" without affording him the opportunity to rebut the charges against him. ECF No. 1 ¶¶ 59, 68-74, 80, 102. That investigation resulted in a proposed five-day suspension without pay and a "sort of permanent probation" that required Plaintiff "[1] comply with all university rules and all directions of the Chair, Dean and university leadership; [2] make all student-related email communications professional and applicable to the immediate discussion; [3] use the correct e-mail signature block; and [4] take courses in email effectiveness and cultivating judgment." Id. ¶¶ 81-83, 93, 102. Any "future violation" of those four terms will result in Plaintiff's termination as a tenured professor. Id. ¶ 83.
Plaintiff does not allege, however, that he availed himself of any disciplinary appeal process or remedy available under Florida law or, alternatively, that no such process or remedy is available. An internal appellate remedy may well exist. Plaintiff himself states that termination of a tenured professor, for example, is subject to "elaborate procedures and full due-process protections." ECF No. 30 at 32. And one remedy available as a matter of right would be a petition for certiorari filed in circuit court. See Decker v. Univ. of W. Fla., 85 So. 3d 571, 574 (Fla. 1st DCA 2012) (holding a petition for certiorari in circuit court to be the appropriate state-law remedy in student's challenge to university's disciplinary measures) (citing in part Fla. R. App. P. 9.190(b)(3)); Doe v. Valencia Coll., 903 F.3d 1220, 1234-35 (11th Cir. 2018) (applying Decker to bar student's procedural due process challenge to university's disciplinary measures where student did not file a petition for certiorari in circuit court).
Because Plaintiff has not alleged that he sought and was denied relief under Florida law, his procedural due process challenge "d[oes] not exist." Laskar, 771 F.3d at 1300. Nevertheless, if Plaintiff can, in good faith, allege that he first unsuccessfully pursued available remedies—or that no remedies exist—he may file an amended complaint realleging his procedural due process claim. Relatedly, as mentioned above, Defendants may re-raise the issue of Defendants Richardson, Watt, and Dobrin's qualified immunity as to Plaintiff's procedural due process claim if Plaintiff does amend his complaint.
Accordingly,
IT IS ORDERED:
1. Defendants' amended motion to dismiss, ECF No. 27, is GRANTED.
2. Plaintiff's complaint, ECF No. 1, is DISMISSED without prejudice.
3. Plaintiff has until Monday, July 3, 2023, to file—if he can in good faith—an amended complaint alleging that he unsuccessfully pursued remedies available under Florida law.
4. If Plaintiff does not file such an amended complaint, the Clerk shall enter judgment stating, "Plaintiff's claims against Defendants are dismissed," and close the file, immediately triggering Plaintiff's right to appeal.
SO ORDERED on June 21, 2023.