Stern v. Roberts

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

DR. MICHAEL L. STERN, )

)

Plaintiff, )

)

v. ) CASE NO. 3:18-CV-807-WKW

) [WO]

STEVEN LEATH, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

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,

1 Boosinger and Hardgrave no longer work for Auburn University, and Aistrup has stepped

down as dean of the economics department. The official-capacity suits against them, therefore,

are no longer appropriate. Also, the official-capacity claims against Boosinger, Hardgrave, and

Aistrup were unnecessary because they were redundant of the official-capacity claims against

President Gogue. See generally Penley v. Eslinger, 605 F.3d 843, 854 (11th Cir. 2010) (“Official-

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.

capacity suits . . . generally represent only another way of pleading an action against an entity of

which an officer is an agent.” (citation and quotation marks omitted)).

These claims also remain pending against President Gogue in his official capacity

for prospective injunctive relief.

II. JURISDICTION AND VENUE

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.

III. STANDARD OF REVIEW

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 (“Subdivision (c)(1)(B) recognizes that a party

need not always point to specific record materials . . . . [A] party who does not have

the trial burden of production may rely on a showing that a party who does have the

trial burden cannot produce admissible evidence to carry its burden as to the fact.”).

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).

IV. BACKGROUND

The parties’ familiarity with the evidence is presumed. Only those facts

necessary for resolution of the pending motion for summary are set out here.

A. Parties

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

2 Where a deposition is cited, the cited pages refer to the deposition pages. Record citations

otherwise use the pagination as listed in CM/ECF.

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 only in his official capacity.

B. The Speech and Retaliatory Acts

At his deposition, Dr. Stern summarizes that his protected speech occurred

principally in three publications (the Wall Street Journal, the Chronicle of Higher

Education, and the Alabama Gazette) and in a public forum (the Auburn University

Senate). (Doc. # 83-1, at 23.) In his summary judgment brief, Dr. Stern categorizes

fifteen instances of protected speech occurring in news articles, and at university

senate and committee meetings. The speech spans from February 4, 2014, to May

18, 2018. (See Doc. # 90, at 21–22 n.7, at 31, at 88.) Thirteen instances of speech

involve Dr. Stern’s protests about the clustering of athletes in the public

administration major, expressed through different outlets; the fourteenth instance

concerns his speech appearing in an article in the Auburn Plainsman in December

2014, which addressed his efforts to move the economics department out of the

Haley Center’s windowless basement; and the fifteenth instance occurred during a

meeting with then-President Leath in September 2017. (Doc. # 83-1, at 293–97.)

Dr. Stern alleges that in the aftermath of his speech, he endured a series of retaliatory

employment actions from Defendants. Discussion of the speech and allegedly

retaliatory actions follows.

1. Speech

a. University Senate Meeting, February 4, 2014

Because some of Dr. Stern’s speech occurred at University Senate meetings,

some background about the University Senate is helpful. The University Senate has

faculty and student representatives, and its monthly meetings are open to the public.

(Doc. # 83-1, at 43, 166–67.) After a presenter speaks, the floor opens for discussion

and questions. Any attendee—be it a student, a senator, or a member of the public—

can ask questions or make comments. (Doc. # 83-1, at 39–41, 43.) The purpose of

the University Senate, as set out in the University Senate Constitution, is as follows:

The University Senate is advisory to the president. In this capacity it is

the body having primary concern for the general academic policies of

the University, including those involving curricula, programs,

standards, faculty appointment, evaluation and development, student

academic affairs and libraries. The University Senate is also concerned

with issues that affect all members of the University community, such

as the budget, employee welfare programs, the calendar, and facilities.

(Doc. # 96, at 29.)

At the University Senate meeting on February 4, 2014, the faculty athletics

representative, Mary Boudreaux, gave a presentation addressing the NCAA’s

concerns about improper clustering of student-athletes in specified majors, but she

reported that Auburn University “didn’t have this problem.” (Doc. # 83-1, at 46.)

Dr. Stern, who at the time served as a senator, questioned her about the accuracy of

her report. He argued that there was an overrepresentation of student-athletes from

the football program in the public administration curriculum and that this

circumstance suggested academic misfeasance. (Doc. # 83-1, at 40–46, 140–43.)

Dr. Stern engaged the faculty athletics representative, Mary Boudreaux, as follows3:

Mike Stern, senator, Economics: You showed an interesting slide and

made some statements about the clustering of athletes in regards to

colleges (is what you showed). I wonder what percentage of football

players this past season who saw significant playing time were public

administration majors?

Mary Boudreaux . . .: I don’t have that information. I don’t know.

Mike Stern, senator, Economics: My colleague actually studied that

fact and I think he found something like, there are 20 times more likely

to be a public administration major than the average student at the

university. It was an amazing number. They were all in the exact same

major. So I am not sure about the slide and the statement you made

about clustering in the programs, but incurring the football team players

especially those that saw playing time, majors, we saw an awful lot of

a specific repeated major for the football team. But I don’t know if you

have broken it out by majors and particular athletic programs as

opposed to athletics broadly speaking because a lot of the concerns

about selection of majors, let’s face it, tends to be with the money

support. They are the money supports and that’s what the typical claims

are. So it would be nice to see with respect to the particular sports

programs that people are most concerned about in that regard, to see

actually what the distribution is in those particular programs, such as

football or basketball. Thank you.

3 The minutes and transcript from the February 4, 2014 University Senate meeting can be

found at https://www.auburn.edu/administration/governance/senate/minutes/2013-2014/min_

02_04_14. html (last visited Mar. 23, 2022).

Mary Boudreaux . . .: I am not familiar with public administration as a

major and I certainly would not want to say it’s an easy or bad major. I

have no problem with public administration, sounds like a good major

to me. But anyway, thank you.

b. December 2014 Auburn Plainsman’s article titled, Economics

Department Tries to Relocate After Five Years in Haley Center

In December 2014, an article was published in the student newspaper, the

Auburn Plainsman, titled, Economics Department Tries to Relocate After Five Years

in Haley Center. The article discussed the economics department’s offices in the

Haley Center basement, and Dr. Stern is quoted. (See Doc. # 89-5.) Although

discussion of this article surfaces in Dr. Stern’s summary judgment response (Doc.

# 90, at 31), Dr. Stern disclaimed during his deposition that he suffered retaliation

based on his speech in this article. (See Doc. # 83-1 at 106–07, 130.)

c. February 3, 2015 University Senate Meeting

At the February 3, 2015 University Senate meeting, the faculty athletics

representative made her annual presentation. Dr. Stern, who was serving as a

senator, aggressively challenged the faculty athletics representative about the

clustering of athletes in the public administration major. (Doc. # 83-1, at 130–55.)4

4 The minutes and transcript from the February 3, 2015 University Senate meeting can be

found at https://www.auburn.edu/administration/governance/senate/minutes/2014-2015/min_

02_03_15.html (last visited Mar. 23, 2022).

d. March 12, 2015 Senate Executive Committee Meeting

After the February 3, 2015 University Senate meeting, Dr. Stern received

official documents pertaining to the academic program review committee’s

recommendation to close the public administration major. Those documents

revealed “disparaging statements” about the major and contradicted the faculty

athletics representative’s annual presentation. (Doc. # 83-1, at 161–63.) Dr. Stern

wanted to report what he had learned to the University Senate executive committee,

which he did on March 12, 2015. (Doc. # 83-1, at 158–61, 169–72.)

e. Senate Steering Committee Meetings, April 23, 2015, and

May 7, 2015

The steering committee is the committee of the University Senate that

develops the agenda for the senate meetings. (Doc. # 83-1, at 178.) Dr. Stern went

before the senate steering committee twice—on April 23, 2015, and on May 7,

2015—to get placed on the University Senate’s agenda. He wanted to make a

presentation addressing the improper clustering of athletes in that major and the

academic program review committee’s recommendation to close the public

administration major. (Doc. # 83-1, at 179, 194–203; Doc. # 91-2, at ¶ 11.)

At the April 23, 2015 steering committee meeting, Provost Boosinger was

supposed to be in attendance, but he did not show up. Because Provost Boosinger

was absent, the chair of the senate delayed consideration of Dr. Stern’s request until

the next meeting in early May. (Doc. # 91-2, at ¶ 11.) At the May 7, 2015 steering

committee meeting, the committee voted against Dr. Stern’s request to address the

Senate. (Doc. # 83-1, at 208–10; Doc. # 90, at 25.)

f. August 28, 2015 Wall Street Journal Article

The Wall Street Journal published an article on August 28, 2015, titled At

Auburn, Athletics and Academics Collide. The article discussed suspicious student-

athlete clustering in Auburn’s public administration major, an academic program

review committee’s vote to close the major, and Provost Boosinger’s and Dean

Aistrup’s override of that vote after they received strong opposition from the athletic

department. (Doc. # 89-6.) The article was based in part on the documents Auburn

University provided in response to a public records request that Dr. Stern and other

faculty members in the economics department had initiated through an attorney.

(Doc. # 83-1, at 189.) Dr. Stern is quoted in the article: “Michael Stern, the chairman

of Auburn’s economics department and a former member of the faculty senate, said

athletics is so powerful at Auburn that it operates like a ‘second university.’

Whenever athletic interests intersect with an academic matter, he said, ‘it’s a

different kind of process.’” (Doc. # 89-6, at 2.)

g. October 20, 2015 Senate Meeting

At a University Senate meeting on October 20, 2015, Dr. Stern engaged in a

discussion about clustering of athletes in the public administration major with a

psychology professor who had served on the intercollegiate athletics committee. Dr.

Stern also confronted Provost Boosinger about a “forward curricula conspiracy” and

the clustering of athletes in the public administration major. (Doc. # 83-1, at 265–

73, 280.) Dr. Stern describes the forward curricula conspiracy as a plan between

Provost Boosinger and the athletics department to create or revise additional majors

that have sufficient flexibility and electives to accommodate a scholarship athlete’s

schedule. (Doc. # 83-1, at 270–72.)

h. November 1, 2015 Alabama Gazette Article titled, All the

Speaker’s Men and the Collapse of AU Athletics

On November 1, 2015, the Alabama Gazette published an article, titled All the

Speaker’s Men and the Collapse of AU Athletics. (Doc. # 97-2; Doc. # 89-29 at ¶ 3

(Sophocleus Aff.).) This article referenced the clustering of athletes in the public

administration major and reported on the public administration controversy

previously exposed by the Wall Street Journal. (Doc. # 97-2; Doc. # 89-29 at ¶¶ 3, 4;

Doc. # 83-1, at 273–77.) There is no mention of this article in the governing

complaint. (Doc. # 47.)

i. August 22, 2017 Senate Meeting

At the August 22, 2017 University Senate meeting, Dr. Stern asked then-

President Leath about the replacement for the retiring faculty athletics

representative. Although Dr. Stern testified at his deposition that he “may have”

brought up the clustering of athletes in the public administration major (Doc. # 83-

1, at 287–90), the transcript of the August 22, 2017 University Senate meeting, belies

that assertion. See https://www.auburn.edu/administration/governance/senate/

minutes/2017-2018/ min_08_22_17.html (last visited Mar. 23, 2022). Dr. Stern did

not mention the clustering issue at this meeting.

j. September 27, 2017 Meeting with then-President Leath

Dr. Stern met with President Leath on September 27, 2017. (Doc. # 83-1,

at 293–98.) Dr. Stern requested the meeting because he “had a lot of issues with the

faculty athletics representative.” (Doc. # 83-1, at 294.) At his deposition, recalling

his discussion with President Leath, Dr. Stern said: “[W]e talked about . . . the

faculty athletics representative position, what he was looking for in it, you know my

concerns, you know, what had happened in the past.” (Doc. # 83-1, at 295.) Dr.

Stern requested that President Leath appoint him as the faculty athletics

representative, but President Leath declined. (Doc. # 83-1, at 296–97.) At the end

of the meeting, Dr. Stern and President Leath “turned to talk a little bit about

economics.” (Doc. # 83-1, at 297.) Dr. Stern recounted his displeasure “‘with what

[was] going on,’” and President Leath agreed that “[t]hings [had] not been handled

correctly . . . .’” (Doc. # 83-1, at 297.) There are no other details about the discussion

in the record, and, according to Dr. Stern, he and President Leath “didn’t have time

to get into it.” (Doc. # 83-1, at 298.)

k. February 16, 2018 Chronicle of Higher Education Article

On February 16, 2018, the Chronicle of Higher Education published an

article, Inside Auburn’s Secret Effort to Advance an Athlete-Friendly Curriculum.

(Doc. # 89-7.) This article reignited and relived Dr. Stern’s involvement in exposing

student-athlete clustering in the public administration major. The article also

discussed Dr. Stern’s public records request, his “leak[ing] “everything to The Wall

Street Journal,” and his and Dean Aistrup’s strained relationship. (Doc. # 89-7,

at 11, 15.) Dr. Stern is pictured and quoted in this article:

“What they have done to me is necessary to keep people in line, or you

will have other people speak out,” says Stern, who provided The

Chronicle with documents that he had previously given to The Wall

Street Journal and other materials he obtained afterward. “There must

be penalties for those who don’t play ball, and there have to be rewards

for those who do. Auburn has been cleansed of dissent.”

(Doc. # 89-7, at 15.)

l. March 1, 2018 Alabama Gazette Article, The Auburn Greed

On March 1, 2018, a column titled, The Auburn Greed, was published in the

Alabama Gazette. (Doc. # 97-3; Doc. # 89-29, ¶ 6.) The column credited Dr. Stern

with exposing the public Administration “scandal.” (Doc. # 97-3, at 3.) The article

contains no statements or quotes by Dr. Stern. Nor does the article identify Dr. Stern

as a source of the article. (Doc. # 97-3, at 2–4.)

m. University Senate Meetings, March 20, 2018, and May 15,

2018

In the weeks that followed The Auburn Greed article, Dr. Stern attended two

University Senate meetings, one on March 20, 2018, and one on May 15, 2018. At

each meeting, he engaged the new faculty athletics representative about the allegedly

improper clustering of athletes in the public administration major. (See Doc. # 83-

1, at 292–93; 358–69.)5 At each of these meetings, Dr. Stern spoke as a substitute

for an elected senator.

2. Acts of Alleged Retaliation

Dr. Stern alleges that, as a consequence of his protected speech, he suffered

twenty-three acts of retaliation. (See Doc. # 90, at 136–37 (Pl.’s Chart of Allegedly

Retaliatory Acts).) Because, as discussed below, some of these acts are barred by

the statute of limitations, discussion of the untimely acts is unnecessary. Other acts

of retaliation also do not survive summary judgment because they either are acts of

non-parties or are institutional decisions that are not characteristic of adverse

employment actions. Discussion of these acts’ demise is in Part V.C.

5 The minutes and transcript from the March 20, 2018 University Senate meeting can be

found at https://www.auburn.edu/administration/governance/senate/transcripts/TrScrpt2017-

2018/transcript_03_20_18. html (last visited Mar. 23, 2022). The minutes and transcript from the

May 15, 2018 University Senate meeting can be found at https://www.auburn.edu/

administration/governance/senate/minutes/2017-2018/min_05_15_18.html (last visited Mar. 23,

2022).

Below are the acts of alleged retaliation that merit more detailed analysis, even

though not all of them ultimately survive summary judgment. These acts include

Dr. Stern’s removal as chair, as well as the denial of raises and bonuses in the 2016–

17, 2017–18, and 2018–19 academic years.

a. Raise for the 2016–17 Academic Year

In October 2016, Dr. Stern received a raise of 3.5% for the 2016–17 academic

year. At this time, the economics department was in the College of Liberal Arts.

Other chairs in the College of Liberal Arts received higher raises. The chair of the

psychology department, for example, received a 4% raise. Dr. Stern contends that

his raise should have been at least 4.5%.6 (Doc. # 91-2, at ¶ 19.) He argues that

Dean Aistrup and Provost Boosinger awarded him a 3.5% raise in retaliation for his

protected speech. The protected speech addressed the allegedly improper clustering

of athletes in the public administration major and the academic program review

committee’s recommendation to close the major. Dr. Stern spoke on these issues,

6 Dr. Stern also asserts that his one-time bonus of 2% in December 2016 was marginal

when compared to his colleagues’ bonuses ranging from 5% to 7%; however, it turned out that the

2% calculation was an accounting error. Dean Aistrup confirmed that a mistake had been, and

thereafter Provost Boosinger awarded Dr. Stern a 7% bonus, which he admits “place[d] him at the

top of the CLA [College of Liberal Arts] administrative distribution.” (Doc. # 91-2, at ¶ 20; Doc.

# 83-4, at 2–3; Doc. # 83-5, at ¶ 20.) To the extent that Dr. Stern contends that his initial 2% raise

was retaliatory, that argument is rejected. As Defendants correctly point out, there is no evidence

that the accounting error was “the product of intentional retaliation by Dean Aistrup.” (Doc. # 84,

at 69.) Further discussion on this point is not needed.

as chronologically significant, at an October 20, 2015 University Senate meeting and

as reported in the August 28, 2015 Wall Street Journal article.

b. Failure to Receive an Annual Evaluation on March 6, 2017

In March 2017, Dr. Stern reported to the provost’s office, specifically to

Associate Provost Emmett Winn, instead of to Dean Aistrup. Because this was Dr.

Stern’s first year under the governance of the provost’s office, Dr. Stern and Dr.

Winn had to decide how to handle Dr. Stern’s annual evaluation. (Doc. # 91-2,

at ¶ 22.) The two tentatively decided that Dr. Winn would author the evaluation,

subject to the approval of Winn’s superiors. A few days later, on March 6, 2017,

Dr. Winn emailed Dr. Stern, stating that: Provost Boosinger “touch[ed] base with

Dr. Gogue,” and “the decision is not to put you through [an annual evaluation] this

year.” (Doc. # 91-2, at 51.) Because positive annual evaluations are used to support

raises and to document good performances, Dr. Stern believes that the absence of an

annual evaluation in 2017 hindered his raises going forward. (Doc. # 83-1, at 510–

11.)

In his summary judgment response, Dr. Stern attributes his failure to receive

an annual evaluation on March 6, 2017, to President Leath and Provost Boosinger.

(Doc. # 90, at 137.) He does not point to any evidence, however, demonstrating that

President Leath, who “became employed by Auburn University on June 1, 2017”

(Doc. # 83-12, at ¶ 1), was involved in this decision. This act goes forward only as

to Provost Boosinger.

c. Raise and One-Time Merit Supplement for the 2017–18

Academic Year

Dr. Stern received a 3% raise for the 2017–18 academic year and a 3% one-

time merit supplement in December 2017. (Doc. # 91-2, at ¶ 24.) He originally had

agreed to the 3% raise and one-time merit supplement because at the time the

economics department was operating independently from the College of Liberal

Arts. As Dr. Stern explains it, “[A]ny dollar that I received beyond 3% would come

at the expense of the money available for the raises of my faculty.” (Doc. # 91-2,

at ¶ 23.) “This was not the case when we were mixed in with the large budget entity

of Liberal Acts, as I could get higher raises at the expense of inferior administrators

in the College rather than at the expense of my faculty.” (Doc. # 91-2, at ¶ 23.) But

by the time the 2017–18 academic year rolled around, Dr. Stern’s department had

been returned to the College of Liberal Arts. Because the economics department

was back under the governance of the College of Liberal Arts, Dr. Stern contends

that he should have received a higher raise and one-time merit supplement as those

payments “would not have come at the expense of [his] faculty.” (Doc. # 91-2,

at ¶ 24.) He attests that he was due a higher raise and one-time merit supplement

because he was “by objective measures, the best chair in the College of Liberal

Arts.” (Doc. # 91-2, at ¶ 24.)

Dr. Stern contends that Dean Aistrup and Provost Boosinger gave him a 3%

raise and 3% one-time merit supplement in retaliation for his protected speech.

(Doc. # 90, at 137.) The protected speech addressed the allegedly improper

clustering of athletes in the public administration major and the academic program

review committee’s recommendation to close the major. Dr. Stern spoke on these

issues, as chronologically significant and as stated above, at an October 20, 2015

University Senate meeting and as reported in the August 28, 2015 Wall Street

Journal article.7

d. Events Surrounding Removal as Chair on May 25, 2018

1. Protected Speech Immediately Preceding Dr. Stern’s

Removal as Chair

On March 20, 2018, and May 15, 2018, Dr. Stern spoke during two University

Senate meetings. At these meetings, Dr. Stern addressed the allegedly improper

clustering of athletes in the public administration major and the academic program

review committee’s rejected recommendation to close the major. Also, on February

16, 2018, the Chronicle of Higher Education article was published in which Dr.

7 As explained later in this opinion, Dr. Stern did not speak on these issues during the

August 22, 2017 University Senate meeting.

Stern was quoted concerning his involvement in exposing student-athlete clustering

in the public administration major. (Doc. # 89-7.)

In late April to early May 2018, Dean Aistrup decided to remove Dr. Stern as

chair. He implemented that decision on May 25, 2018, officially demoting Dr. Stern

from chair to an associate professor in the economics department. (Doc. # 83-3,

at ¶ 41.) When Dean Aistrup removed Stern as chair, he also provided him with a

memorandum reflecting that Dean Aistrup had evaluated his performance for 2017

as “unacceptable.” Dean Aistrup’s memorandum downgrading Dr. Stern’s

evaluation stated: “Dr. Stern, you did not provide me with your annual performance

review materials for 2017. In accordance with Provost Hardgrave’s directive of

April 6, 2018 (attached), you are given an evaluation of unacceptable.” (Doc. # 91-

2, at 48, 49; Doc. # 83-3, at ¶ 41.)

Dr. Stern continued to receive the same salary and benefits through the end of

his scheduled third term as chair (i.e., from June 2018 through August 2019). (Doc.

# 83-3, at 130, 144.) After that, Dr. Stern’s pay reverted to that of an associate

professor, which resulted in a $41,000 reduction in his annual salary. (See Doc. # 90,

at 164.)

2. Dean Aistrup’s Prior Attempts to Remove Dr. Stern as

Chair, As Told by Dr. Stern

Dr. Stern contends that his removal as chair was the culmination of a plan

Dean Aistrup devised in 2014 to oust him as chair for speaking out publicly against

the public administration major. That plan, as laid out by Dr. Stern, was as follows.

In the spring of 2014, which was after Dr. Stern had challenged the faculty

athletics representative at the February 5, 2014 University Senate meeting, Dean

Aistrup met with Dr. Stern for his annual evaluation. At that meeting, Dean Aistrup

initiated the topic of hiring an outside chair for the economics department to replace

Dr. Stern, but then followed up in an email asking Dr. Stern to keep quiet this

discussion “between [Dr. Stern] and the Dean’s office.” (Doc. # 83-1, at 100–01,

524–26; Doc. # 89-18 (Mar. 5, 2014 email).)

In August 2015, which was after Dr. Stern had again brought up the public

administration controversy at the February 2015 University Senate meeting, Dean

Aistrup discussed with Dr. Stern his desire to hire an outside chair for the economics

department. Dr. Stern strongly opposed the proposal of hiring an external chair.

(Doc. # 91-2, at ¶¶ 14, 15.) As a result of Dr. Stern’s opposition, in August 2015

(which was “just days before” the Wall Street Journal article), Dean Aistrup held a

meeting with the economics faculty for a vote to replace Dr. Stern as chair with an

“external hire”; to sweeten the offer, Dean Aistrup explained that the chair would be

paid from Provost Boosinger’s budget, and not from the economics department’s

budget. The faculty, however, voted unanimously against replacing Dr. Stern. (Doc.

# 83-1, at 524–25; see also Doc. # 83-2, at 66–73; Doc. # 91-2, at ¶ 15.)

A few months later, after Dr. Stern spoke out against the public administration

major at the October 20, 2015 University Senate meeting, Dean Aistrup tried to

create new policies for the College of Liberal Arts related to the chair position. (Doc.

# 83-1, at 526–27; see also Doc. # 89-21 (Aistrup’s Nov. 11, 2015 email requesting

a vote on changes to the “Chair Election Policy”).) According to Dr. Stern, these

policies would have permitted the dean to “reject without any sort of real reason the

department’s vote” on a chair. (Doc. # 83-1, at 527.) Finally, by Dr. Stern’s account,

on January 12, 2017, Dean Aistrup “admitted that he had been on a long campaign

to replace [Dr. Stern] as Chair, but that he had just been doing it ‘for [Dr. Stern’s]

own good.’” (Doc. # 91-2, at ¶ 20.)

Based on the foregoing facts, Dr. Stern contends that Dean Aistrup, with the

support of Provost Hardgrave and President Leath, removed him as chair in

retaliation for his protected speech, dating back to 2014.8 Dr. Stern also contends

that Dean Aistrup’s reason for the unacceptable evaluation is pretextual because

8 When Dean Aistrup made the decision to remove Dr. Stern as chair, Dr. Hardgrave had

succeeded Dr. Boosinger as provost. (Doc. # 83-9, at ¶¶ 1–2 (Hardgrave Decl.).)

Provost Hardgrave’s directive in the memorandum discussed a chair’s evaluation of

a faculty member, not a dean’s evaluation of a chair. (Doc. # 91-2, at ¶ 33.)

3. Dean Aistrup’s Prior Attempts to Remove Dr. Stern as

Chair, as Told by Dean Aistrup

Dean Aistrup admits that he, as well as Provost Boosinger, opposed Dr.

Stern’s serving a third term as chair, even though the economics department faculty

had voted in favor of Dr. Stern for a third term commencing in September 2016.

(Doc. # 83-3, at ¶ 25; Doc. # 83-5, at ¶ 19.) Dean Aistrup expressed his opposition

in a meeting with President Gogue and Provost Boosinger, but President Gogue

supported Dr. Stern’s third term as chair.9 Following this meeting, Dean Aistrup

was resigned to re-appoint Dr. Stern to a third term, unless he could convince Dr.

Stern to step aside voluntarily. (Doc. # 83-3, at ¶ 25.)

In April 2016, Dean Aistrup met with Dr. Stern for that purpose. Dean Aistrup

told “Dr. Stern that [he] believed his continued service as chair was stunting his

growth as an academic” and that Dr. Stern “would be better served by focusing on

research and publications as opposed to administrative duties” to help him obtain a

9 In the chart set out in his summary judgment response, Dr. Stern says that this meeting

occurred in September 2016. (Doc. # 90, at 137; see also Doc. # 90, at 35 (“In or around September

2016, Aistrup and Boosinger met with President Gogue, and Aistrup and Boosinger again

advocated to Gogue that Stern be removed as Chair.” (citing Doc. # 83-1, at 525, 527)).) The cited

evidence, which is Dr. Stern’s deposition testimony, does not indicate the date the meeting

occurred. Dean Aistrup testified, and his testimony is unrebutted, that the meeting occurred in

April 2016 (Doc. # 83-3, at ¶ 24.)

promotion from associate to full professor. (Doc. # 83-3, at ¶¶ 24–25.) Dr. Stern

did not agree to step aside as chair. Hence, Dean Aistrup told Dr. Stern in that

meeting that he would reappoint him as chair.10 (Doc. # 83-3, at ¶ 25.)

4. The Reasons Dean Aistrup Asserts for Removing Dr. Stern

as Chair

Dean Aistrup declares that his decision to remove Dr. Stern as chair of the

economics department was based primarily on grounds of insubordination. The

most egregious episodes of Dr. Stern’s insubordination, according to Dean Aistrup,

were (1) Dr. Stern’s refusal to acknowledge that the arrangement whereby the

economics department (and thus Dr. Stern) reported to Associate Provost Winn had

ended in July 2017; (2) Dr. Stern’s corresponding refusal to follow the proper chain-

of-command and, instead of seeking to address concerns and obligations with Dean

Aistrup or other the College of Liberal Arts leadership, going directly to the

President’s or Provost’s offices; (3) Dr. Stern’s refusal to hire senior faculty for the

Department of Economics as directed by Dean Aistrup; (4) Dr. Stern’s failure to

timely and properly submit tenure and promotion (“T&P”) files to Dean Aistrup and

instead to deliver the department’s T&P files to the Provost’s Office; (5) Dr. Stern’s

10 Dr. Stern says that, as of September 2016, Dean Aistrup had not formally reappointed

him as chair. (Doc. # 83-1, at 115 (“I received no documents stating that I had been reappointed

chair of the economics department.”); see generally Doc. # 83-1, at 115–21, 519–36; Doc. # 84,

at 156–58.) Dr. Stern admits though that, after his reelection to a third term, he continued to

perform all the duties of chair and to receive a chair’s salary. (Doc. # 83-1, at 116, 121.)

removal of Dean Aistrup from email distribution lists or refusal to include him at all;

(6) Dr. Stern’s refusal to participate in the 2017–18 academic program review

process for the Economics Department (before that process was postponed by

Provost Hardgrave); and (7) Dr. Stern’s refusal to participate in leadership meetings

for the College of Liberal Arts. (See Doc. # 83-3, at ¶¶ 32, 35–38, 41; Doc. # 83-5,

at ¶ 31; Doc. # 83-9, at ¶¶ 6, 8; Doc. # 83-12, at ¶¶ 9–10, 14.)

Dean Aistrup also argues that Dr. Stern’s removal as chair had nothing to do

with Dr. Stern’s protected speech at the University Senate meetings on March 20,

2018, and May 15, 2018. That is because he says he was unaware that Dr. Stern had

spoken at these University Senate meetings. (Doc. # 83-3, at ¶ 42.)

e. Denial of a Raise for the 2018–19 Academic Year and of a

One-Time Merit Supplement in December 2018

Dr. Stern did not receive a merit raise for the 2018–19 academic year. He also

did not receive a one-time merit supplement in December 2018. (Doc. # 91-2,

at ¶ 35 (“In October of 2018 and December of 2018, I did not receive any raise or

one-time merit supplement. That was consistent with me [sic] not receiving a raise

letter in September of 2018 like every other faculty member in the Department.”).)

Dr. Stern also was the only professor in his department who was not awarded a one-

time merit supplement in 2018, and he contends that Dean Aistrup’s cursory

performance rating of “unacceptable” in May 2018 is to blame. (Doc. # 83-1, 521–

23; Doc. # 90, at 115, 162.) This also was the only year he did not receive a bonus

since his appointment as chair of the economics department, despite his having

received excellent performance reviews throughout his tenure as chair. (See Doc.

# 89-3 (performance evaluations); Doc. # 90, at 164 (citing record).)

Dr. Stern contends that these monetary sanctions were in retaliation for “new

instances of protected speech.” (Doc. # 90, at 162.) He points to his having served

as a source for the Chronicle of Higher Education’s February 2018 article, which

discussed the issue of student-athlete clustering in the public administration major.

He also points to his speech at the March 2018 and May 2018 University Senate

meetings. (Doc. # 90, at 162–63.)

Because the University Guidelines provide that the provost had to approve

any raise of 0% (Doc. # 91-2, at ¶ 35), Dr. Stern seeks to hold Provost Hardgrave

responsible, as well as Dean Aistrup, for denying him a raise. Dr. Stern also

contends that Provost Boosinger is liable for this act (Doc. # 90, at 137 (chart)), but

he does not point to any evidence or argue any theory for holding Provost Boosinger

responsible. Provost Boosinger retired from Auburn University in December 2017.

These First Amendment retaliation claims proceed therefore against Provost

Hardgrave and Dean Aistrup, but not against Provost Boosinger.

V. DISCUSSION

Defendants assert myriad challenges. They invoke Eleventh Amendment

immunity and raise the statute of limitations as a bar to most of the allegedly

retaliatory acts. Defendants also argue that they had no notice (via the Second

Amended Complaint or otherwise) of some instances of protected speech, that other

of Dr. Stern’s speech does not receive First Amendment protection, that they are not

vicariously liable for acts by non-parties, and that none of the adverse acts is causally

connected to the protected speech. Defendants also raise qualified immunity as an

affirmative defense to some of the claims. Dr. Stern counters these arguments.

Bottom line, Defendants’ arguments are persuasive as to all but the following

of Dr. Stern’s First Amendment claims for relief for allegedly retaliatory acts: 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.

A. Eleventh Amendment Immunity

Defendants raise Eleventh Amendment immunity as a bar to the official-

capacity claims against President Gogue for monetary damages. (Doc. # 84, at 4

n.1.) Dr. Stern has not rebutted Defendants’ invocation of Eleventh Amendment

immunity, and appropriately so.

Dr. Gogue has Eleventh Amendment immunity in his official capacity, except

as to claims for prospective injunctive relief. See Hafer v. Melo, 502 U.S. 21, 25

(1991) (“Suits against state officials in their official capacity. . . should be treated as

suits against the State.”); Ex parte Young, 209 U.S. 123, 159–60 (1908). This

immunity forecloses Dr. Stern’s request, not only for monetary damages, but also

for an award of back pay. Lussier v. Dugger, 904 F.2d 661, 669 (11th Cir. 1990)

(Back pay is “retroactive relief” that “would constitute the payment of money

damages from the state treasury in a suit against state officials” and, thus, is barred

by the Eleventh Amendment). Accordingly, Defendants’ motion for summary

judgment based on Eleventh Amendment immunity is due to be granted.

B. Instances of Protected Speech that Are Not Properly Before the Court

Defendants argue that three instances of speech related to the controversy

about the public administration major are not properly before the court because they

are not mentioned in the governing second Amended Complaint. Additionally, they

point out that Dr. Stern affirmatively abandoned reliance on one of these instances

of speech.

In his summary judgment response, Dr. Stern relies on an article in the

Alabama Gazette, titled All the Speaker’s Men and the Collapse of AU Athletics,

which was published in November 2015. (Doc. # 97-2.) This article referenced the

clustering of athletes in the public administration major and reported on the public

administration controversy previously exposed by the Wall Street Journal. (Doc.

# 97-2 (article); Doc. # 89-29, at ¶¶ 3, 4; Doc. # 83-1, at 273–77.) Dr. Stern also

identifies the October 20, 2015 University Senate meeting as a forum in which he

engaged Provost Boosinger (and another faculty member) about the forward

curricula conspiracy and the athletic scandal surrounding the public administration

major. (See Doc. # 90, at 88.) Dr. Stern’s summary judgment response (Doc. # 90

at 96–98) also relies on the article titled, Economics Department Tries to Relocate

After Five Years in Haley Center, that was published in December 2014 in Auburn

University’s student newspaper, the Auburn Plainsman. The article discusses the

economics department’s offices in the Haley Center basement, and Dr. Stern is

quoted. (See Doc. # 89-5.)

The governing Second Amended Complaint, which contains 181 paragraphs,

does not mention Dr. Stern’s speech in the November 2015 Alabama Gazette article,

his speech at the October 20, 2015 University Senate meeting, or his speech in the

December 2014 Auburn Plainsman article. And there is no factual basis in the

allegations to read Dr. Stern’s First Amendment retaliation claims as resting on these

three occurrences of speech. A plaintiff may not amend the complaint through

summary judgment briefing. See Gilmour v. Gates, McDonald & Co., 382 F.3d

1312, 1315 (11th Cir. 2004). Defendants are entitled to notice of a plaintiff’s claims

in the complaint, and defendants are not required to “infer all possible claims that

could arise out of facts set forth in the complaint.” Id. To permit Dr. Stern to proceed

on First Amendment claims arising from this speech would subvert the purposes of

notice pleading under Federal Rule of Civil Procedure 8(a), which are “to enable the

responding party to identify the pleader’s claim, [to] frame a responsive pleading,

and to permit the court to determine which facts are intended to support which

claims.” Stinson ex rel. K.R. v. Maye, 824 F. App’x 849, 855 (11th Cir. 2020) (citing

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015)).

Dr. Stern’s belated attempts to bring First Amendment retaliation claims on these

instances of speech comes too late.

Also, Defendants point out that, during his deposition, Dr. Stern renounced

the third instance of speech. When asked if he was alleging retaliation by Defendants

because of his participation in the December 2014 Auburn Plainsman article, Dr.

Stern replied: “No, that is not my contention for this specific retaliation here that

we are seeking redress for. I don’t attribute those acts to that article.” (Doc. # 83-1

at 106–07, 130.) And Dr. Stern’s post-deposition affidavit does not attempt to

resurrect this speech as actionable. (Doc. # 91-2.) Defendants argue, and the court

agrees, that Dr. Stern “cannot now change his mind (or his pleadings) in an attempt

to avoid summary judgment.” (Doc. # 96, at 54.)

C. The Allegedly Retaliatory Acts (Adverse Employment Actions)11

Dr. Stern enumerates twenty-three allegedly retaliatory acts dating back to

2014. The list identifies each act, the date of each act, and who is responsible for

the act. (Doc. # 90, at 136–37.) The alleged acts range from written and oral

criticisms against Dr. Stern’s protests about the public administration major, inferior

treatment of the economics department, repeated efforts to remove Dr. Stern as chair

of the economics department, and the denial of full raises and bonuses. Those

committing these transgressions against Dr. Stern include Defendants and non-

Defendant university officials.

For the reasons discussed in the following four subparts, seventeen of the

alleged retaliatory acts are insufficient to support a First Amendment claim of

retaliation.

11 In this opinion, the phrases, “adverse employment action,” “acts of retaliation,” and

“retaliatory acts” are used interchangeably.

1. The Statute of Limitations and the Continuing Violation Doctrine

The statute of limitations on § 1983 claims brought in Alabama is two years.

See Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). The two-year statute

of limitations under § 1983 begins to run when the plaintiff knows or has reason to

know “(1) that [he] ha[s] suffered the injury that forms the basis of [his] complaint

and (2) who has inflicted the injury.” Chappell v. Rich, 340 F.3d 1279, 1283 (11th

Cir. 2003). Therefore, the triggering date for the running of the statute of limitations

on a § 1983 First Amendment retaliation claim is the date the plaintiff learns that a

defendant has retaliated against him for engaging in protected speech. The

retaliatory act—not the protected speech—is the significant event for measuring the

start date of the statute of limitations.

Defendants argue that all the acts of alleged retaliation occurring outside the

two-year period preceding September 18, 2018—the date Dr. Stern commenced this

action—are time barred. (Doc. # 84, at 45.) Dr. Stern acknowledges that the

retaliatory acts that accrued prior to September 18, 2016, fall outside the statute of

limitations. (See, e.g., Doc. # 90, at 136, 146.) He argues, though, that the

continuing violation doctrine permits him to sue on these otherwise time-barred

claims. (Doc. # 90, at 107–08.) For the reasons to follow, the two-year statute of

limitations establishes the temporal parameters of Dr. Stern’s timely claims, and the

continuing violation doctrine is inapplicable. As a result, the two-year statute of

limitations narrows Dr. Stern’s § 1983 First Amendment retaliation claims from

twenty-three to fifteen.

The continuing violation doctrine resurrects “an otherwise time-barred claim

when additional violations of the law occur within the statutory period.” McGroarty

v. Swearingen, 977 F.3d 1302, 1307 (11th Cir. 2020) (quoting Ctr. for Biological

Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006)). The doctrine is

constrained “to situations in which a reasonably prudent plaintiff would have been

unable to determine that a violation had occurred.” Ctr. for Biological Diversity v.

Hamilton, 453 F.3d 1331, 1335 (11th Cir. 2006). “If an event or series of events

should have alerted a reasonable person to act to assert his or her rights at the time

of the violation, the victim cannot later rely on the continuing violation doctrine.”

Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1221–22 (11th Cir. 2001) (holding

that the continuing violation doctrine did not save the plaintiff’s untimely charge

where the plaintiff “suspected age discrimination when he resigned”). In other

words, the continuing violation doctrine does not apply to discrete acts of

discrimination that occur outside the statute of limitations. Each discrete act starts a

new clock, and “discrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002).

The continuing violation doctrine originated in Title VII jurisprudence, see

id., but the Eleventh Circuit has extended the doctrine to claims under § 1983. See

City of Hialeah v. Rojas, 311 F.3d 1096, 1101–02 (11th Cir. 2002) (applying the

continuing violation doctrine to claims under § 1983); see also O’Connor v. City of

Newark, 440 F.3d 125, 127–28 (3d Cir. 2006) (“[T]he Morgan rule that individually

actionable allegations cannot be aggregated is of particular import in the context of

First Amendment retaliation claims.”); MacKenzie v. City of Miami Beach, Case No.

07-21357-Civ-Ungaro, 2008 WL 11331842, at *7 (S.D. Fla. Apr. 16, 2008)

(concluding that, as to a § 1983 claim, Morgan “effectively abolish[ed] the

‘continuing violation’ doctrine as applied to discrete acts.” (quoting Morgan, 536

U.S. at 113)).

Here, the facts are not suited for the continuing violation doctrine. The

evidence establishes that the alleged harms were discreet and were known to Dr.

Stern. Dr. Stern testified that, at the time of each allegedly retaliatory act, he

believed that his First Amendment rights had been violated. He also testified that

he knew, as early as 2014, that Defendants were taking retaliatory actions against

him for his speech. (See, e.g., Doc. # 83-1, at 100, 450–51 (Answer: “I believe . . .

retaliation began after that February ’14 . . . Senate meeting.” Question: “And you

knew . . . in 2014 that retaliatory actions were being taken against you, correct?”

Answer: “Correct.” Question: “Same thing is true for 2015, correct?” Answer:

“Yeah, 2014 forward.”).) Dr. Stern’s position in his summary judgment response is

consistent with his deposition testimony. He argues that each act of retaliation is

adverse under First Amendment jurisprudence (Doc. # 90, at 138–44) and that

“many of these individual retaliatory acts, alone, are sufficient to stand as adverse

actions that would, from an objective point of view, deter a person of ordinary

firmness from continuing to engage in protected speech . . . .” (Doc. # 90, at 146 &

n.96 (citation and internal footnote omitted); see also Doc. # 90, at 109 (contending

that the “diplomacy email” in February 2014 “could easily be seen as a reprimand”

in response to his comments made at the university senate meeting); Doc. # 90,

at 136 (“Most, if not all, of the alleged retaliatory acts are actionable as ‘adverse

actions’ under First Amendment jurisprudence[.]” (all caps omitted)). The acts of

which Dr. Stern complains, in his own words, are discrete, actionable acts of

retaliation. Dr. Stern was aware of his injuries when the acts occurred; therefore, it

is reasonable to expect that he should have filed a lawsuit alleging retaliation within

two years of each act.

Dr. Stern argues that the alleged retaliatory actions are timely because they

involved an ongoing campaign of harassment. (Doc. # 90, at 107–11.) He contends

that the alleged campaign of harassment is equivalent to a single claim that began

prior to but extended into the limitations period. This argument relies on Bennett v.

Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005), but that reliance is misplaced.

In Bennett, the plaintiffs alleged that law enforcement officers subjected them

to a campaign of harassment in retaliation for their support for a county referendum

that the sheriff opposed. 423 F.3d at 1248. The issue was whether the plaintiffs had

shown that the “retaliatory conduct adversely affected the protected speech,” as

required to demonstrate the second element of a First Amendment retaliation claim.

The Bennett court did not address the statute of limitations or the continuing

violation doctrine; its decision does not help Dr. Stern’s argument for saving

untimely retaliatory acts. As another district court in this circuit recently explained,

“the Bennett court focused on whether the pattern of harassment satisfied the

substantive elements of a retaliation claim . . . .” Davis v. Chapman, No. 3:19-CV-

24 (CAR), 2021 WL 4442358, at *4 (M.D. Ga. Sept. 28, 2021). It did not examine

a “pattern of harassment in the statute of limitations context” or hold that “a

campaign of harassment alters the statute of limitations rule.” Id. (rejecting the

continuing violation doctrine as sufficient to save time-barred acts of retaliation

brought under the First Amendment).

In sum, Dr. Stern filed his lawsuit on September 18, 2018. All Dr. Stern’s

claimed injuries that stemmed from Defendants’ allegedly retaliatory acts occurring

more than two years prior to September 18, 2018, are time-barred. The continuing

violation doctrine does not apply to save these discrete claims.

The time-barred acts total eight and encompass (1) Dean Aistrup’s

“diplomacy” email in February 2014, (2) Dean Aistrup’s proposals in 2014 and 2015

to hire an external senior faculty member to replace Dr. Stern as the chair of the

economics department, (3) Dr. Stern’s negative performance review for the 2014

year, (4) the University Senate steering committee’s May 2015 vote not to include

Dr. Stern on the senate’s agenda, (5) comments Dean Aistrup made to Dr. Stern at

the May 2015 College of Liberal Arts retreat, (6) the delay in providing Dr. Stern

with his five-year administrative review in the spring of 2016, and (7)–(8) Dr.

Stern’s low raises and bonuses in 2014 and 2015.12 (See Doc. # 84, at 48.) These

eight allegedly retaliatory acts are time barred and cannot form the basis of an

actionable First Amendment claim.

The following fifteen alleged acts of retaliation are not time barred:

Acts of Alleged Retaliation Date of Occurrence Individual Responsible

(1) Refusal to help with moving the September 18, 2016 Dean Aistrup and Provost

economics department out of the Haley through 2017 Boosinger

Center basement

(2) Failure to formally reappoint Dr. September 8, 2016 Dean Aistrup

Stern for the third term as Chair through May 25, 2018

(3) Provost Boosinger’s instruction not March 6, 2017 Provost Boosinger

to give Dr. Stern an annual evaluation

(which laid the groundwork for denying

Dr. Stern an annual raise and one-time

merit supplement in 2018)

12 It is not necessary, therefore, to address Defendants’ other arguments challenging these

acts.

(4) The return of the Department of July 5, 2017 Provost Boosinger and

Economics to the governance of the President Leath13

College of Liberal Arts

(5) Refusal to create an independent July 5, 2017 Provost Boosinger, Dean

School of Economics Aistrup, and President Leath

(6) Elimination of budget, blocking of Fall 2017–Spring Dean Aistrup and Provost

IT hire, other hiring obstacles, etc. 2018 Boosinger

(7) Removal as Chair14 (and acts May 25, 2018 Dean Aistrup, Provost

leading up to the removal, including Hardgrave, and President Leath

Dean Aistrup’s failed attempts to have

Dr. Stern removed either voluntarily or

involuntarily)

(8) Low annual raises for the 2016–17 September 18, 2016 Dean Aistrup and Provost

and 2017–18 academic years and low through Boosinger

bonus in 2017 December 2017

(9) No annual raise or bonus for the 2018 Dean Aistrup and Provosts

2018–19 academic year Boosinger and Hardgrave

(10) Attempts to have staff keep June 12, 2018 Dr. Kim and Dr. Aditi Sengupta

information and students away from Dr.

Stern

(11) Excluded as Senator July 30, 2018 Dr. Kim

(12) Replacement of Dr. Stern’s wife July 30, 2018 Dr. Kim

(Liliana Stern) as senator

(13) Removal of Dr. Stern’s access to November 9, 2018 Dr. Kim

budgetary information through the

Banner system

(14) Failure to appoint to departmental July 2018 through Dr. Kim

committees Spring 2019

(15) Removal from graduate student’s April 2019 Dr. Kim

dissertation committee

13 In his chart (Doc. # 90, at 136–37), Dr. Stern lists Dean Aistrup as a third administrator

who was involved in this decision, but he cites no evidence of Dean Aistrup’s involvement. The

evidence Dr. Stern cites (see Doc. # 90, at 154 n.104) is a July 5, 2017 memorandum from Provost

Boosinger to Dean Aistrup, informing Dean Aistrup that “I [Provost Boosinger] have made the

following decisions related to the Department of Economics,” including that “[t]he Department of

Economics will remain in the College of Liberal Arts.” (Doc. # 83-5, at 31.)

14 In his chart, Dr. Stern lists as separate retaliatory acts a 2016 meeting in which Dean

Aistrup and Provost Boosinger advocated unsuccessfully to President Gogue for Dr. Stern’s

removal as chair and (2) Dean Aistrup’s failure to formally reappoint Dr. Stern for the third term

as chair. (Doc. # 90, at 137.) Going forward, these acts are considered not as separate acts, but as

part of the context leading up to Dr. Stern’s removal as chair. This avoids any statute of limitation

bar as well, see supra note __.

(See Doc. # 90, at 137 (Pl.’s Chart).)

Notably, the chart above does not include any acts by President Gogue. Dr.

Stern testified that he is unaware of any retaliatory action taken against him by

President Gogue (Doc. # 83-1 at 467–68), and for that reason, Dr. Gogue is sued in

his official capacity only.

2. The Sufficiency of the Adverse Employment Actions to Sustain a

Claim of Retaliation Under the First Amendment

“[W]hether an employee suffered an ‘adverse employment action’ is a

‘preliminary matter’ that must be resolved first” when an employee alleges a First

Amendment retaliation claim. Buending v. Town of Redington Beach, 10 F.4th

1125, 1135 (11th Cir. 2021). With the tightening of the claims to timely acts of

alleged retaliation, the court turns to two additional challenges to Dr. Stern’s

assertions of adverse employment actions: (1) that the retaliatory acts by non-parties

are not actionable; and (2) and that some of the acts of alleged retaliation are

institutional decisions that are not characteristic of adverse employment actions.

Defendants’ arguments on these points are persuasive.

a. Acts of Retaliation by Non-Parties

In (10) through (15) in the above chart, Dr. Stern sets forth six acts of

retaliation by Dr. Hyeongwoo Kim and one act of retaliation by Dr. Aditi Sengupta.

(See also Doc. # 90, at 137 (chart); Doc. # 90, at 170–81.) Dr. Kim succeeded Dr.

Stern as chair of the economics department. As the new chair, Dr. Kim selected Dr.

Sengupta as co-director of the economics graduate program. (See Doc. # 90, at 53

n.38.) Neither Dr. Kim nor Dr. Sengupta is a party to this lawsuit.

Defendants contend that they cannot be held liable for the acts of their

subordinates—Dr. Kim and Dr. Sengupta—because vicarious liability is not

available under § 1983 and because Dr. Stern has not presented evidence suggesting

that Defendants are responsible for the acts of either Dr. Kim or Dr. Sengupta. (Doc.

# 84, at 40 n.15, 71; Doc. # 96, at 7.) They are correct, which presumptively is why

Dr. Stern has not addressed this argument in his summary judgment response.

Under § 1983, a supervisor can be held liable for his or her personal acts;

however, “[i]t is well established in this circuit that supervisory officials are not

liable under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir. 1999) (citation and internal quotation marks omitted); see also Monell v.

N.Y. City Dep’t of Social Serv., 436 U.S. 658 (1978).

In his summary judgment brief, Dr. Stern has not argued any theory or

presented any evidence to attach liability to any Defendant for the allegedly

retaliatory acts of Dr. Kim and Dr. Sengupta. Dr. Stern refers to his deposition

testimony (see, e.g., Doc. # 90, at 176, 178), but that testimony relies on nothing

more than speculation. Namely, Dr. Stern “suspects” that Dr. Kim “believes that

they [Hardgrave and Aistrup] are pleased by [his] discomfort,” (Doc. # 83-1, at 489–

90), but he has not connected that suspicion to any direct or inferential evidence.

(See Doc. # 90, at 178; Doc. # 83-1, at 475–77, 482–97; Doc. # 96, at 55–56.) The

other evidence he cites, which includes his and Jennifer Bruno’s affidavits (see Doc.

# 90, at 173–180), also does not link Dr. Kim’s acts to any directive of a Defendant.

Dr. Stern’s hunch that Defendants commanded Dr. Kim and Dr. Sengupta to deny

Dr. Stern job-necessary information, committee assignments, and a senator position,

no matter how steadfastly believed by him, is insufficient to survive summary

judgment. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)

(“Unsupported speculation does not meet a party’s burden of producing some

defense to a summary judgment motion. Speculation does not create a genuine issue

of fact; instead, it creates a false issue, the demolition of which is a primary goal of

summary judgment.” (cleaned up)). Accordingly, summary judgment is due to be

entered in Defendants’ favor on the First Amendment retaliation claims predicated

on the allegedly retaliatory acts of third parties, Dr. Kim and Dr. Sengupta.15

15 Defendants raise other challenges to these third-party acts, including that they do not

qualify as adverse employment actions (see Doc. # 84, at 48–53); however, it is unnecessary to

address these arguments.

b. Alleged Adverse Employment Actions by President Leath,

Provost Boosinger, and Dean Aistrup Pertaining to Institutional Decisions

Affecting the Economics Department

Defendants contend that some of the allegedly retaliatory acts are large-scale

institutional decisions that “are simply not of the nature to constitute an adverse

action against Stern.” (Doc. # 84, at 51.) Those acts, which are set out in (1), (4),

(5), and (6) in the above chart, encompass the following: (1) Dean Aistrup’s and

Provost Boosinger’s failure to provide adequate assistance in connection with the

relocation of the economics department out of the Haley Center basement; (4) the

related decision in 2017 to return the economics department to the College of Liberal

Arts; (5) President Leath’s decision in 2017, at Provost Boosinger’s

recommendation, not to establish an independent school of economics; and the

(6) cryptic “[e]limination of budget, blocking of IT hire, other hiring obstacles,

etc.”16 Although the parties have not cited, and this court has not found, on-point

16 In his response to the summary judgment motion, Dr. Stern captions the retaliatory acts

in (6) as including the “[e]limination of budget, blocking of IT hire, other hiring obstacles, etc.”

(Doc. # 90, at 151 (heading 2); see also Doc. # 90, at 137 (chart).) He alludes to these acts in a

footnote, stating only that, after the Department of Economics was returned to the College of

Liberal Arts in July 2017, Provost Boosinger and Dean Aistrup retaliated against him by “blocking

the budget, staffing, and hiring of an IT person.” (Doc. # 90, at 154 n.104.) Dr. Stern then cites

six pages of his deposition testimony. (Doc. # 83-1, at 251–53 (testifying that his speech “is

certainly responsible for various negative things that happened to the unit [economics department],

from blocking hiring, which hurts everybody, from not proceeding as we had agreed with our

school. Not having millions of dollars of surplus in the budget benefits everybody’s career in the

unit”); at 475 (testifying that President Leath conspired to “get rid of my budget, block hiring and

so forth”; at 509 (testifying that the July 5, 2017 memorandum from Provost Boosinger included

the “blocking of that IT hire at that time . . . “); at 509–10 (testifying that Dr. Boosinger’s retaliation

caselaw, this circuit’s precedent defining adverse employment actions in the First

Amendment public employment context supports Defendants’ position.

The circuit’s recent decision in Bell v. Sheriff of Broward County, 6 F.4th

1374 (11th Cir. 2021), which was decided after briefing on the summary judgment

motion closed, is instructive.

In Bell, the Eleventh Circuit acknowledged that its precedent is “muddled”

when it comes to defining an adverse employment action for a First Amendment

retaliation claim brought by a public employee. See 6 F.4th at 1377. The Bell court

examined its prior decisions on the subject. It explained that in 2004 it had held that

retaliatory adverse actions implicate “‘important condition[s] of employment,’” such

as “‘discharges, demotions, refusals to hire or promote, and reprimands.’” Id.

(quoting Stavropoulos v. Firestone, 361 F.3d 610, 618 (11th Cir. 2004), abrogated

as to Title VII standard by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

68 (2006)). The next year in 2005, it decided Bennett, holding that “‘a plaintiff

suffers adverse action if the defendant’s allegedly retaliatory conduct would likely

included “everything involved” with the “supposed return to liberal arts or the hire blocking and

so forth and elimination of new budget and so forth”).

This testimony does not establish what staffing was blocked or what the circumstances

were surrounding the “hiring of an IT person.” Also, Dr. Stern’s testimony does not elucidate on

what the “etc.” and “so forth” are. The absence of meaningful discussion and context about these

events requires guesswork as to how these actions qualify as adverse employment actions suffered

by Dr. Stern. From what can be gleaned, these actions occurred as a result of the decision to return

the economics department to the College of Liberal Arts. Because that decision meant that the

economics department would not have its own budget or its own staff, these non-descript events

are analyzed here.

deter a person of ordinary firmness from the exercise of First Amendment rights.’”

Id. (citing Bennett, 423 F.3d at 1250). The Bennett decision “distinguished

Stavropoulos” for claims brought by private citizens, id. (citing Bennett, 423 F.3d

at 1250), because “[p]lainly, private citizens cannot suffer adverse employment

actions at the hands of public officials who are not their employers.” Id. (citing

Bennett, 423 F.3d at 1252). However, the Eleventh Circuit then recognized that to

confuse matters, more than a decade later, in a “case involving the First Amendment

retaliation claim of a police officer, [the Eleventh Circuit] applied Bennett without

mentioning Stavropoulos.” Id. (citing Bailey v. Wheeler, 843 F.3d 473, 477, 480–

81 (11th Cir. 2016)). In Bell, the Eleventh Circuit found a “way out of the

precedential conundrum” because the deputy sheriff did not suffer an adverse

employment action “under both the Stravropoulos and Bennett standards.” Id.

at 1378. Hence, while in Bell the Eleventh Circuit thought it was important to flag

the “potential intra-circuit conflict,” it did not have to resolve the issue. Id.

The conundrum also is avoidable here. First, a reasonable, university

department chair would not have been dissuaded from exercising his personal

constitutional rights because higher-ranking university officials made institutional

decisions with which he disagreed. Here, one decision pertained to the physical

location of the economics department, and another decision was that the economics

department should be part of the College of Liberal Arts instead of a free-standing

college. A department chair may be professionally affected by these decisions, but

he or she does not suffer a sufficient personal effect from the decisions that is distinct

from the effect on the University generally.

Second, these decisions affected the entire economics department; they are

not synonymous with a discharge, demotion, or reprimand. They are not the types

of decisions and actions that support a First Amendment retaliation claim under the

circuit’s guiding principles. Dr. Stern cites no authority that supports a contrary

finding.

Accordingly, Defendants are entitled to summary judgment on Dr. Stern’s

First Amendment claims predicated on President Leath’s decision, at Provost

Boosinger’s recommendation, not to establish an independent school of economics;

the related decision to return the economics department to the College of Liberal

Arts; and Dean Aistrup’s and Provost Boosinger’s failure to provide adequate

assistance in connection with the relocation of the economics department out of the

Haley Center basement.17

17 Alternatively, as to the decision in July 2017 to administratively move the Department

of Economics back to the College of Liberal Arts and the related refusal to support the proposal

for an independent School of Economics, these acts are not temporally related to any of Dr. Stern’s

protected speech. The Wall Street Journal article was published in August 2015—twenty-three

months before these decisions were made. Dr. Stern did not engage in protected speech between

the Wall Street Journal article and the Chronicle of Higher Education article, which was published

in February 2018. Dr. Stern cannot create an inference of causation based on a 23-month temporal

gap.

c. Summary of Surviving Acts of Alleged Retaliation

The following acts of alleged retaliation remain for further analysis:

Acts of Alleged Retaliation Date of Occurrence Individual Responsible

(1) Provost Boosinger instructed Winn March 6, 2017 Provost Boosinger

not to give Dr. Stern an annual

evaluation, which laid the groundwork

for denying Dr. Stern an annual raise

and one-time merit supplement in 2018.

(2) Removal as Chair (and acts leading May 25, 2018 Dean Aistrup, Provost

up to the removal, including Dean Hardgrave, and President Leath

Aistrup’s failed attempts to have Dr.

Stern removed either voluntarily or

involuntarily)

(3) Low annual raises for the 2016–17 September 18, 2016 Dean Aistrup and Provost

and 2017–18 academic years and low through Boosinger

bonus in 2017 December 2017

(4) No annual raise for the 2018–19 2018 Dean Aistrup and Provosts

academic year or bonus in 2018 Boosinger and Hardgrave

(See Doc. # 90, at 137 (Pl.’s Chart).)

d. Qualified Immunity

Defendants argue that they are entitled to qualified immunity as to some, but

not all, claims. (Doc. # 84, at 56–61.) All claims upon which Defendants moved

for qualified immunity in their opening brief have been disposed of on other grounds,

as set out in the preceding discussion. It is, thus, unnecessary to address this defense.

In their reply brief (to which Dr. Stern has responded), Defendants raise a new

qualified immunity argument, which is addressed below.

C. Principles Governing First Amendment Retaliation

“[T]he First Amendment protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of public concern.” Garcetti

v. Ceballos, 547 U.S. 410, 417 (2006) (citations omitted). “[A]s a general matter the

First Amendment prohibits government officials from subjecting an individual to

retaliatory actions for engaging in protected speech.” Nieves v Barlett, 139 S. Ct.

1715, 1722 (2019) (citation and quotation marks omitted). However, “a public

employee’s right to freedom of speech is not absolute.” Carter v. City of Melbourne,

731 F.3d 1161, 1168 (11th Cir. 2013). A public employee does not enjoy an

unqualified right to freedom of speech because “the State has interests as an

employer in regulating the speech of its employees that differ significantly from

those it possesses in connection with regulation of the speech of the citizenry in

general.” Pickering, 391 U.S. at 568. Thus, the aim is to strike “a balance between

the interests of the [employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting the efficiency of

the public services it performs through its employees.” Id. (alteration added).

In the public employment context, a four-part test governs to strike the balance

whether the employee has proven a First Amendment retaliation claim. The

sequential inquiries are, first, “whether the employee spoke as a citizen on a matter

of public concern,” Garcetti, 547 U.S. at 418; second, “whether the employee’s

interest in speaking outweighs the government’s legitimate interest in efficient

public service”; third, “whether the speech played a substantial part in the

government’s challenged employment decision”; and fourth, “whether the

government would have made the same employment decision in the absence of the

protected conduct.” Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1563–

64 (11th Cir 1995) (citation omitted). The first two inquiries are “questions of law”

for the court. Moss v. City of Pembroke Pines, 782 F.3d 613, 618 (11th Cir. 2015)

(citation omitted). The third and fourth inquiries focus on the causal link between

the speech and the adverse employment action, and “are questions of fact” for the

jury, “unless the evidence is undisputed.” Id.

As to the burden of proof, the employee must prove the first three elements

by a preponderance of the evidence. Battle v. Bd. of Regents for Georgia, 468 F.3d

755, 760 (11th Cir. 2006). If the employee meets that burden, the burden shifts to

the employer to prove the fourth element by a preponderance of the evidence. See

id.

D. Protected Speech

To qualify as protected speech, a public employee must demonstrate (1) that

the speech “addressed a subject of public concern” and (2) that he “spoke in his

capacity as a citizen, rather than as an employee.” Moss, 782 F.3d at 618 (citing

Garcetti, 547 U.S. at 421). Speech relates to a matter of public concern when it is

“fairly considered as relating to any matter of political, social, or other concern to

the community.” Connick v. Myers, 461 U.S. 138, 146 (1983). To decide this issue,

courts scrutinize “the content, form, and context of a given statement, as revealed by

the whole record.” Id. at 147–48. The “public concern” requirement serves “to

prevent the federal courts from becoming ‘a roundtable for employee complaints

over internal office affairs.’” Carter, 731 F.3d at 1168 (quoting Connick, 461 U.S.

at 149). The Eleventh Circuit has “emphasized that ‘a public employee may not

transform a personal grievance into a matter of public concern by invoking a

supposed popular interest in the way public institutions are run.’” Id. (quoting

Ferrara v. Mills, 781 F.2d 1508, 1516 (11th Cir. 1986)).

Furthermore, when deciding whether an employee is speaking “as a citizen,”

the Supreme Court has looked at whether the speech was made pursuant to the

employee’s official duties. See Garcetti, 547 U.S. at 421. “Under Garcetti, the

central inquiry is whether the speech at issue owes its existence to the employee’s

professional responsibilities.” Alves v. Bd. of Regents of the Univ. Sys. of Georgia,

804 F.3d 1149, 1161 (11th Cir. 2015) (cleaned up). In other words, the court must

ask “whether the speech at issue is itself ordinarily within the scope of an employee’s

duties, not whether it merely concerns those duties.” Carollo v. Boria, 833 F.3d

1322, 1329 (11th Cir. 2016) (quoting Lane v. Franks, 573 U.S. 228, 239 (2014)).

The Eleventh Circuit also has addressed First Amendment speech in the public

higher-education setting. On the one hand, it has recognized that “speech that

concerns internal administration of the educational system and personal grievances

will not receive constitutional protection.” Maples v. Martin, 858 F.2d 1546, 1552

(11th Cir. 1988) (illustrating that speech criticizing salaries, tenure decisions, a

proposed course syllabus, and course assignments is unprotected (collecting cases)).

On the other hand, the Eleventh Circuit has concluded that “teachers whose speech

directly affects the public’s perception of the quality of education in a given

academic system find their speech protected.” Id. at 1553 (illustrating that protected

speech includes speech that addresses funding issues, admission policies, and

accreditation standards (collecting cases)).

In Maples, the Eleventh Circuit held that tenured engineering professors at

Auburn University engaged in protected speech when they published a report that

questioned the mechanical engineering department’s accreditation status based upon

“weaknesses in the curriculum, inadequate facilities, a low faculty-to-school ratio,

. . . the poor performance of Auburn graduates on the professional licensing exams

for engineers, all of which endanger[ed] the ability of the Department to prepare

students for professional engineering careers.” Id. “The status of an academic

department’s accreditation is the type of subject usually held to be of interest to the

general public.” Id.

1. Dr. Stern’s Protected Speech

Defendants accept that Dr. Stern’s speech appearing in the articles in the Wall

Street Journal and in the Chronicle of Higher Education, as well as Dr. Stern’s

remarks made to the University Senate and its committees, are protected speech.

(See Doc. # 84, at 40–41.) Through these mediums, Dr. Stern criticized the public

administration major. (But see Part IV.C.3.a. below.) He questioned the quality of

the courses in the public administration major, the major’s long-term educational

value, and the major’s ability to prepare graduates for employment in the field. He

also honed in on the major’s alleged syphoning of star athletes to safeguard their

athletic scholarships and academic eligibility.

Based on Maples, these instances of speech touch on matters of public

concern, and Dr. Stern lodged these criticisms as a private citizen, and not pursuant

to his professional job responsibilities. See 858 F.2d at 1553. Hence, Dr. Stern

engaged in protected speech when his speech on these issues was published in the

Wall Street Journal and in the Chronicle of Higher Education and when he made his

remarks to the University Senate and its committees.

2. Dr. Stern’s Speech that Is Not Protected

a. Dr. Stern’s Speech at the August 22, 2107 University Senate

Meeting

Dr. Stern overlooks that he did not speak about the number of scholarship

athletes majoring in public administration at the August 22, 2017 University Senate

meeting. Although Dr. Stern testified at his deposition that he “may have” brought

up the clustering issue (Doc. # 83-1, at 287–90), the transcript of the August 22,

2017 meeting reveals that he did not. See https://www.auburn.edu/

administration/governance/senate/minutes/2017-2018/min _08_22_17.html (last

visited Mar. 23, 2022). Dr. Stern asked President Leath about whether he had

selected someone to replace the retiring faculty athletics representative, but Dr. Stern

is not claiming in this lawsuit that this line of speech is protected under the First

Amendment. Because Dr. Stern did not discuss a topic at the August 22, 2017

meeting that falls within the parameters of what he is alleging is protected speech,

Dr. Stern’s dialogue with President Leath at the August 22, 2017 meeting will not

be considered in the First Amendment analysis.

b. Speech Pertaining to the Economics Department’s Facilities

Defendants contend that Dr. Stern’s vocal effort to move the economics department

out of the Haley Center is not protected speech. (Doc. # 96, at 3–6; see Doc. # 83-

1, at 35–36, 208, 211–12, 415, 465, 530, 532, 545–48.) This speech encompasses

Dr. Stern’s statements in an Auburn Plainsman’s article titled, Economics

Department Tries to Relocate After Five Years in Haley Center, in December 2014.

As already discussed, Dr. Stern has disavowed that he is claiming retaliation for his

speech in this article. (Doc. # 96, at 3; Doc. # 83-1 at 106–07, 130.) Even if Dr.

Stern were pursuing a retaliation claim based on this speech, the claim would not

succeed. When Dr. Stern engaged in speech and conduct related to his desire—as

chair of the Department of Economics—to move the department out of the Haley

Center’s windowless basement into better office space, he did so as an employee of

Auburn and in his capacity as chair, not as a private citizen. The evidence concedes

this point. In his 2014 self-assessment, Dr. Stern belabored his inability to achieve

the relocation of the economics department from the basement as one of his failures

as chair. (Aistrup Decl. at ¶ 15, Ex. E.) This speech was inextricable from his duties

and responsibilities as chair of the economics department. See Maples, 858 F.2d at

1553.

Second, Defendants argue that Dr. Stern’s discussion about the economics

department in his meeting with then-President Leath on September 27, 2017, is not

protected speech. (Doc. # 90, at 98.) The court agrees. Dr. Stern admits that his

statements to President Leath lacked substance. Dr. Stern testified that “towards the

end [of the meeting], we turned to talk a little bit about economics”; “I said, you

know, ‘[I’m] . . . very displeased with what is going on,’” to which President Leath

replied, ‘Things have not been handled correctly . . . .’” (Doc. # 83-1, at 297.) Dr.

Stern does not contend that there was any more to the conversation. Rather, he

confirmed at his deposition that he and President Leath “didn’t have time to get into

it.” (Doc. # 83-1, at 298.) This is not the sort of stuff of which protected speech is

made.

c. The March 2018 Alabama Gazette Article

Defendants also argue that the March 2018 article that ran in the Alabama

Gazette—The Auburn Greed—does not contain speech by Dr. Stern. Dr. Stern

responds that he “contributed significantly” to the article. (Doc. # 90, at 92.)

Defendants have the better argument.

This article credits Dr. Stern with his having “first exposed internally” the

public administration major “scandal,” as reported in the August 2015 Wall Street

Journal article. (Doc. # 97-3, at 3.) The Alabama Gazette summarized the Wall

Street Journal article, but it does not contain new speech by Dr. Stern. The article

also contains no statements made by Dr. Stern, and Dr. Stern is not identified in the

article as having supported or contributed to the March 2018 article. While the

article’s author has submitted an affidavit that Dr. Stern “contributed significantly

to the article” (Doc. # 89-29), there is no evidence that any Defendant knew of Dr.

Stern’s behind-the-scenes involvement in the article’s making. Dr. Stern’s

involvement cannot be gleaned from the article itself since it gives Dr. Stern no

attribution. Categorizing this article as containing protected speech by Dr. Stern is

too tenuous.

d. Qualified Immunity

In their reply brief, Dean Aistrup and Provost Boosinger raise a new qualified

immunity argument as to Dr. Stern’s speech about the public administration major

before the University Senate and its committees. (Doc. # 96, at 28–30.) Defendants

“concede[]” that Dr. Stern’s “speech delivered in the University Senate in 2014,

2015, and 2018 was protected by the First Amendment.” (Doc. # 96, at 28.) But

they argue that they are entitled to qualified immunity in their individual capacities

because it is “not clearly established in Eleventh Circuit or United States Supreme

Court precedent—and is not to this day—that Stern appeared and spoke in the Senate

(or a Senate committee) as a citizen rather than as an Auburn employee,” given that

the “University Senate exists as part of the ‘shared governance’ concept.” (Doc.

# 96, at 28–30.) Defendants also point out that Dr. Stern spoke either as a senator

or as a senator substitute at these meetings. In his sur-reply, Dr. Stern counters that

his “official duties as both a professor and Senate representative ended when he

began speaking about the Public Administration major, which had absolutely

nothing to do with his role as an economics professor or a Senate representative for

the Economics Department.” (Doc. # 103, at 3–8.)

Under the doctrine of qualified immunity, “courts may not award damages

against a government official in his personal capacity unless the official violated a

statutory or constitutional right, and the right was ‘clearly established’ at the time of

the challenged conduct.” Lane v. Franks, 573 U.S. 228, 243 (2014) (citation and

quotation marks omitted). A constitutional right—the First Amendment—is at issue

in this case. One element of the First Amendment inquiry is “whether the speech at

issue was made primarily in the employee’s role as citizen, or primarily in the role

of employee.” Kurtz v. Vickrey, 855 F.2d 723, 727 (11th Cir. 1988). Here,

Defendants focus on the clearly established prong of the qualified immunity inquiry.

“[T]he salient question . . . is whether the state of the law” at the time of the adverse

employment actions was clearly established so as to provide “fair warning” to

Defendants that, at the university senate and its committee meetings, Dr. Stern was

speaking primarily as a citizen, rather than as an employee, when he criticized a

college major that was not in his department or under his governance as chair of the

economics department. Tolan v. Cotton, 572 U.S. 650, 656 (2014) (citation and

quotation marks omitted).

Garcetti is instructive. In Garcetti, the Supreme Court held that, “when 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 discipline.” Garcetti, 547 U.S. at 421.

“The critical question under Garcetti is whether the speech at issue is itself ordinarily

within the scope of an employee’s duties, not whether it merely concerns those

duties.” Lane, 573 U.S. at 240. “Factors such as the employee’s job description,

whether the speech occurred at the workplace, and whether the speech concerns the

subject matter of the employee’s job may be relevant, but are not dispositive.”

Garcetti, 547 U.S. at 420–21. “Garcetti instructed that ‘[t]he proper inquiry is a

practical one.’” Moss, 782 F.3d at 618 (quoting Garcetti, 547 U.S. at 424).

However, “the mere fact that a citizen’s speech concerns information acquired by

virtue of his public employment does not transform that speech into employee—

rather than citizen—speech.” Lane, 573 U.S. at 240. Significantly, for purposes of

this opinion, the Eleventh Circuit has held that “Garcetti gave reasonable public

officials fair warning that it violates the First Amendment to terminate a colleague

in retaliation for speaking about matters of public concern that are outside the scope

of his ordinary job responsibilities.” Carollo, 833 F.3d at 1334.

Dr. Stern spoke seven times about the public administration major and athletic

clustering at University Senate meetings and at its committee meetings. He spoke

at the University Senate, once in 2014, once in 2015, and twice in 2018. He also

addressed the topic at three committee meetings—at a senate executive committee

meeting and at two senate steering committees—all in 2015. (See Doc. # 83-1, at 23,

165–72, 179, 186–88, 194–203, 208–10, 292–93,358–59.)

Dr. Stern has submitted evidence that his speech about the public

administration major was outside the scope of his ordinary job responsibilities as

chair of the economics department. Dr. Stern emphasizes that his job description as

chair did not concern the academic integrity of the public administration program.

The public administration major was housed in the political science department, not

in the economics department, and he exercised no governance over that major. (Doc.

# 90, at 76 (record citations omitted).) To bolster his position, Dr. Stern relies on

evidence that he did not obtain information about the public administration major

through his job as chair of the economics department. Rather, he had to rely on third

parties and a FOIA request. (Doc. # 90, at 76–77 (record citations omitted).) And,

while his speech at the University Senate meetings occurred on Auburn University’s

campus, it did not occur in the halls of Dr. Stern’s department. Also, Dr. Stern used

multiple public forums to voice his complaints about the public administration

major, including the Wall Street Journal. In other words, Dr. Stern did not limit his

forums to those affiliated with Auburn University, and Dean Aistrup and Provost

Boosinger knew that. (See, e.g., Doc. # 91-2, at ¶ 16 (notifying the steering

committee at its May 7, 2015 meeting, which Provost Boosinger attended, that he

(Dr. Stern) was going to work with a reporter on an article to expose the public

administration major’s flaws).) The Garcetti factors weigh decidedly in Dr. Stern’s

favor. See 547 U.S. at 420–21.

Defendants, though, point to the faculty handbook’s provisions providing that

the University Senate is the mechanism through which faculty members are involved

“in the formulation and review of institutional policies which affect the academic

and professional welfare of the University and the Faculty.” (Doc. # 96, at 29.)

Defendants argue that, when Dr. Stern spoke in the forum of the University Senate,

he spoke as an employee about institutional policies pertaining to an academic

major. Defendants’ argument that the forum takes the speech out of the parameters

of Garcetti’s fair warning is not convincing. The University Senate is a public forum

open for anyone to ask questions of a presenter. That is what Dr. Stern did; he

questioned the accuracy of the faculty athletics representative’s presentation in a

public meeting. Defendants’ argument might be stronger had Dr. Stern been the one

giving the presentation. But the steering committee, which sets the agenda for the

University Senate meetings, denied his request to make a formal presentation

addressing the suspicious clustering of athletes in the public administration major

and the rejected recommendation of the academic program review committee to

close the major. (Doc. # 83-1, at 208–10.) The steering committee did not think

that Dr. Stern’s speech was appropriate fodder for a University Senate meeting.

Because the evidence, construed in the light most favorable to Dr. Stern,

shows that the matters of public concern upon which Dr. Stern spoke were “outside

the scope of his ordinary job responsibilities,” Garcetti’s fair warning stands.

Carollo, 833 F.3d at 1334. Based upon the evidence at summary judgment and

Garcetti’s pronouncements, qualified immunity is improper on Defendants’

argument that it was not clearly established that Dr. Stern spoke at senate and

committee meetings as a citizen rather than as an employee.

3. Summary

The following chart delineates the instances of speech and adverse

employment actions, in chronological order, that go forward for an analysis of

causation.18 Because each adverse employment action is a discreet act, each action

constitutes a separate First Amendment retaliation claim.

Speech February 4, 2014 Senate meeting Dr. Stern confronts the faculty athletics

representative about improper clustering of

athletes in the public administration major

Speech February 3, 2015 Senate meeting Dr. Stern questions the faculty athletics

representative more aggressively regarding

clustering of athletes in the public

administration major

Senate Executive Committee Dr. Stern met with the University Senate

Meeting—March 12, 2015 Executive Committee to discuss what he

Speech

had learned regarding the Academic

Program Review documents and clustering

of athletes in the public administration

major.

Two Senate Steering Committee Dr. Stern went before the University

Meetings—April 23, 2015 & Senate Steering Committee twice in an

Speech

May 7, 2015 effort to get placed on the Senate’s agenda

to speak about the academic program

review documents and clustering of

athletes; his requests were denied.

Speech Wall Street Journal Article— This article exposed the clustering of

Aug. 28, 2015 athletes in the public administration major.

18 Causation, for example, addresses the arguments pertaining to temporal proximity.

Adverse March 6, 2017 Provost Boosinger instructed Winn not to

Act give Dr. Stern an annual evaluation, which

laid the groundwork for denying Dr. Stern

an annual raise and one-time merit

supplement in 2018.

Adverse September 18, 2016 through Dean Aistrup and Provost Boosinger

Acts December 2017 awarded Dr. Stern low annual raises for the

2016–17 and 2017–18 academic years and

a low bonus in 2017

Adverse 2018 Dean Aistrup and Provost Boosinger

Act denied Stern an annual raise and one-time

merit supplement in 2018

Speech Chronicle of Higher Education This article further exposes the clustering

Article—Inside Auburn’s Secret of athletes in the public administration

Effort to Advance an Athlete- major, as well as Auburn University

Friendly Curriculum—Feb. 16, administration’s attempt to cover it up

2018 through a “forward curricula conspiracy”

and the athletics department’s attempt to

stack the public administration program

with athletes before it was closed.

Speech March 20, 2018 University Dr. Stern questioned the new faculty

Senate meeting athletics representative about the clustering

of athletes in the public administration

major.

Speech May 15, 2018 University Senate Dr. Stern discussed the clustering of

Meeting athletes in the public administration major.

Adverse May 25, 2018 removal as chair Dean Aistrup, Provost Hardgrave, and

Act (and acts leading up to the President Leath were involved in Stern’s

removal, including Dean removal as chair.

Aistrup’s failed attempts to have

Dr. Stern removed either

voluntarily or involuntarily)

E. Whether the Employee’s Interest in Speaking Outweighs the

Government’s Legitimate Interest in Efficient Public Service (Pickering

Balancing)

The second element of the four-part Beckwith test considers “whether the

employee’s interest in speaking outweighs the government’s legitimate interest in

efficient public service.” Beckwith, 58 F.3d at 1563. Defendants’ arguments on this

element are limited. (See Doc. # 84, at 53–56; Doc. # 96, at 21–23.) As to the First

Amendment claims that go forward for additional analysis, Defendants have not

brought a challenge under this element. Rather, Defendants focus on the third and

fourth elements of the Beckwith test to which the discussion turns.

F. Whether the Speech Played a Substantial Part in the Challenged

Employment Decisions

Defendants argue that there is an absence of evidence on the third Pickering

factor. (Doc. # 84, at 61.) To get his claims before the jury, Dr. Stern “ha[s] to

present enough evidence for a reasonable jury to conclude that his protected speech

was a ‘substantial’ motivating factor in the decision to” remove him as chair and to

deny him raises and bonuses. Beckwith, 58 F.3d at 1564. In Beckwith, the Eleventh

Circuit explained that “the employee’s burden is not a heavy one.” Id. Beckwith

illustrated its point with a discussion of the Supreme Court’s decision in Waters v.

Churchill, 511 U.S. 661 (1994):

In Waters, Churchill brought a § 1983 claim against a state hospital

alleging that her termination was in retaliation for protected speech.

Briefly addressing the intent issue, the Court concluded that a material

issue of fact was created by evidence of Churchill’s criticism of hospital

policy, evidence of management “sensitivity” about the criticisms, and

evidence of conduct that, viewed in the light most favorable to the

plaintiff, showed management hostility because of the criticisms. The

Court relied on a sudden drop in Churchill’s performance evaluations,

criticism of her relationship with a doctor, and a supervisor’s unusual

ordering of Churchill out of an operating room as significant evidence

of management hostility. Thus, purely circumstantial evidence, taken

in the light most favorable to the plaintiff, can create a jury question on

the issue of the government’s motive.

Beckwith, 58 F.3d at 1564–65 (internal citations and footnotes omitted).

There is no “single” or bright-line standard for measuring whether an

employee meets his or her “burden of demonstrating that a retaliatory intent was a

‘substantial’ or ‘motivating factor’ behind a government employment decision.”

Beckwith, 58 F.3d at 1564. “[P]urely circumstantial evidence, taken in the light most

favorable to the plaintiff, can create a jury question on the issue of the government’s

motive.” Id. at 1565. A plaintiff could point to, for example, a “temporal

relationship between the protected speech and the adverse action,” evidence that the

asserted reason for the adverse employment action was pretextual, “any comments

made, or actions taken, by the employer indicating that the discharge was related to

the protected speech,” shifting reasons for implementing the adverse employment

action, or “evidence of management hostility to the speech in question.” Stanley v.

City of Dalton, 219 F.3d 1280, 1290 n.18 (11th Cir. 2000). A plaintiff also could

rely on a “sequence of events” between the first protected expression and the adverse

employment action to demonstrate “a relatively slow and deliberate process to

terminate” an employee: “the delay does not operate to destroy an inference of

causation.” Beckwith, 58 F.3d at 1564.

1. Removal as Chair

Dr. Stern alleges that Dean Aistrup removed him as chair of the economics

department on May 25, 2018, in retaliation for his speech regarding clustering of

student-athletes in the public administration, dating back to 2014. Dr. Stern also

testified that Provost Hardgrave, who assumed the provost position in January 2018,

and President Leath were involved in the retaliatory act of removing him as chair.

(Doc. # 83-1, at 476–78; Doc. # 90, at 137 (chart).)

a. Dean Aistrup

Defendants argue that, while Dr. Stern’s speech was protected by the First

Amendment, Dr. Stern has failed to produce sufficient evidence for a reasonable jury

to find “any causal connection” between Dr. Stern’s dismissal as chair and his

protected speech. According to Defendants, Dean Aistrup did not know about Dr.

Stern’s protected speech at the March 2018 and May 2018 University Senate

meetings. Dean Aistrup has submitted a declaration that he did not attend these two

meetings and did not learn about Dr. Stern’s speech at those meetings until after he

had removed Dr. Stern as chair. (Doc. # 83-3, at ¶ 42.) Defendants argue that,

because Dean Aistrup “did not have any knowledge of Stern’s speech,” Dr. Stern

“cannot show that his spring 2018 discussions about [the public administration

major] in the University Senate substantially motivated Dean Aistrup to make the

decision to remove him as Chair.” (Doc. # 84, at 66–67; see also Doc. # 96, at 34

(pointing out that Dr. Stern “completely ignores Defendants’ uncontradicted

evidence that Dean Aistrup, who made the decision to remove Stern as Chair, had

no knowledge whatsoever of Stern’s March 2018 or May 2018 Senate

presentations”).)

Dr. Stern bears the burden to “establish that the employer was actually aware

of the protected expression at the time it took adverse employment action.” Roberts

v. Rayonier, Inc., 135 F. App’x 351, 358 (11th Cir. 2005); cf. Brochu v. City of

Riviera Beach, 304 F.3d 1144, 1155–56 (11th Cir. 2002) (holding that the plaintiff

could not prove causation on a Title VII retaliation claim where there was no

evidence rebutting the decisionmaker’s affirmative attestation that he lacked

knowledge of the speech at the time he transferred the plaintiff). As this court has

said in the context of a First Amendment retaliation claim, “[n]o knowledge means

no motive.” Tipton v. Houston Cnty. Bd. of Educ., No. 1:17-CV-588-WKW, 2019

WL 2176174, at *5 (M.D. Ala. May 20, 2019). Dr. Stern’s summary judgment

response is devoid of any argument or citation to the record that raises a genuine

dispute of material fact that Dean Aistrup knew about Dr. Stern’s speech at these

two University Senate meetings. Dr. Stern has not pointed to any evidence from

which to infer Dean Aistrup’s knowledge, and his arguments do not address Dean

Aistrup’s explicit declaration. The court is not required to scour the record in search

of arguments and evidence to support a claim. See Resolution Trust Corp. v. Dunmar

Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the district court

to distill every potential argument that could be made based upon the materials

before it on summary judgment. Rather, the onus is upon the parties to formulate

arguments . . . .” (internal citation omitted)). Dean Aistrup’s declaration—

affirmatively denying knowledge of Dr. Stern’s speeches at the March 2018 and

May 2018 university senate meetings—stands unrebutted. There is, therefore, no

evidence from which to infer a causal connection between Dr. Stern’s removal as

chair and his protected speech at the March 2018 and May 2018 University Senate

meetings. Accordingly, Dr. Stern has failed to create a genuine dispute of material

fact that Dean Aistrup removed him as chair in retaliation for his speech at the March

2018 and May 2018 University Senate meetings.

Dr. Stern’s silence on this point does not defeat his claim that Dean Aistrup

removed him as chair in retaliation for his protected speech in the Chronicle of

Higher Education article. Dean Aistrup admits his knowledge of the Chronicle

article, but he argues that the “three-month gap between the February 16, 2018

Chronicle article and the May 25, 2018 removal [as chair] cannot, on its own,

support an inference of causation because the time period is not sufficiently close”

in time.” (Doc. # 84, at 67 (citation omitted).) This argument must fail.

In the First Amendment retaliation context, the Eleventh Circuit has opined

that “gaps of time, standing alone, do not preclude [a plaintiff] from producing

enough evidence for a reasonable jury to conclude that protected speech was a

substantial factor in the decision to terminate him.” Stanley, 219 F.3d at 1291 (citing

Beckwith, 58 F.3d at 1567; Schneider v. Indian River Comm. College Found., Inc.,

875 F.2d 1537, 1543 n.9 (11th Cir. 1989)). In Beckwith and Schneider, lapses of ten

and fourteen months between the protected speech and adverse employment actions

were not fatal to the employees’ First Amendment retaliation claim. See Beckwith,

58 F.3d at 1567 (fourteen-month lapse in time); Schneider v. Indian River Comm.

College Found., Inc., 875 F.2d 1537, 1543 n.9 (11th Cir. 1989) (ten months).

Considering these precedents, Defendants have not shown that the three-month gap,

“standing alone,” precludes Dr. Stern from establishing that his protected speech

was a substantial factor in the decision to remove him as chair. Rather, “all the

evidence and any logical inferences drawn from that evidence” must be considered.

Beckwith, 58 F.3d at 1564.

Dr. Stern has submitted sufficient circumstantial evidence, construed in favor

of the non-movant, to take his claims to the jury. This evidence includes the nature

of the actions and comments by Dean Aistrup toward Dr. Stern’s speech about the

suspicious clustering of student-athletes the public administration major and Dean

Aistrup’s attempts to remove Dr. Stern as chair that followed close on the heels of

Dr. Stern’s protected speech. See Stanley, 219 F.3d at1291 n.20; Beckwith, 58 F.3d

at 1564.

First, Dr. Stern’s evidence reveals that Dean Aistrup in the past had confronted

Dr. Stern about his public protests that Auburn University improperly clustered

athletes in the public administration major to protect their eligibility. According to

Dr. Stern, in May 2015, at a faculty retreat, Dean Aistrup told Dr. Stern that he

should keep his complaints “in house” and should stay away from the press. (Doc.

# 83-1, at 238–39; see also Doc. # 91-2, at ¶ 16.) Second, Dr. Stern submits evidence

that, after the return of the economics department to the College of Liberal Arts in

July 2017, Dean Aistrup delayed additional funding for the economics department

and deferred approval of Dr. Stern’s proposal for new faculty hires. (Doc. # 91-2,

at ¶¶ 25–29.) Third, there is some evidence suggesting that the process used to

appoint Dr. Stern’s replacement did not follow department procedures or practices.

(Compare Doc. # 83-7, at 110 (§ 2.3.2 of the Faculty Handbook) (“The chair or head

of a department, who serves as the chief representative of the department within an

institution, should be selected by departmental election or by appointment following

consultation with members of the department and of related departments[.]”) and

Doc. # 89-7, at ¶ 5 (College of Liberal Arts’ Procedures for Selection and

Appointment of Department Chairs and School Directors), with Docs. # 89-25, at ¶ 2

(Beard Aff.), Doc. # 89-27, at ¶ 5 (L. Stern Aff.), and Doc. # 89-28, at ¶ 11 (Seals

Aff.) (all attesting that they are voting faculty members in the economics department

and that Dean Aistrup did not consult with them concerning the appointment of Dr.

Kim as department chair).)

The foregoing “purely circumstantial evidence, taken in the light most

favorable to [Dr. Stern], can [and does] create a jury question on the issue of the

[Defendants’] motive.” Beckwith, 58 F.3d at 1565. Dr. Stern has created a genuine

dispute of material fact that his speech played a substantial part in his removal as

chair.

b. Provost Hardgrave

Dr. Stern testified that he believes that Provost Hardgrave, who became

Auburn’s Provost in January 2018, also was involved in the decision to remove him

as chair and harbored a retaliatory motive for the removal. (Doc. # 83-1 at 477–78.)

However, Dr. Stern’s deposition testimony is speculative on the issue of Provost

Hardgrave’s allegedly retaliatory motive, fails to rebut Provost Hardgrave’s

declaration, and does not create a genuine dispute of material fact for trial as to

Provost Hardgrave’s liability. (Doc. # 83-9, at ¶¶ 8–11.) Summary judgment is due

to be entered in Provost Hardgrave’s favor on Dr. Stern’s First Amendment

retaliation claim predicated on his removal as chair.

c. President Leath

In the chart in his summary judgment response, Dr. Stern lists President Leath

as an administrator who is responsible for his removal as chair. (Doc. # 90, at 137.)

Dr. Stern, though, does not point to any evidence or make any argument for holding

President Leath accountable for that decision. (See Doc. # 90, at 164–66.) Also, in

his deposition, Dr. Stern does not attribute any act pertaining to his removal as chair

to President Leath. (See, e.g., Doc. # 83-1, at 475–76.) For these reasons, President

Leath is entitled to summary judgment on Dr. Stern’s First Amendment retaliation

claim predicated on his removal as chair.

2. Dr. Stern’s Failure to Receive an Annual Evaluation in 2017 and the

Subsequent Denial of a Raise for the 2018–19 Academic Year and of a One-Time

Merit Supplement in December 2018

In October 2018, Dr. Stern did not receive a raise for the 2018–19 academic

year, and in December 2018, he did not receive a one-time merit supplement. (See

Doc. # 91-2, at ¶ 35.) Dr. Stern contends that Dean Aistrup and Provost Hardgrave

denied him a raise and a bonus in retaliation for “new instances of protected

speech.”19 (Doc. # 90, at 162; Doc. # 90, at 137 (chart).) He points to his having

served as a source for the Chronicle of Higher Education’s February 2018 article,

which discussed the issue of student-athlete clustering in the public administration

19 Dr. Stern’s evidence focuses on Dean Aistrup’s actions, as well as on the actions of the

“Provost.” (Doc. # 91-2, at ¶ 35 (“Provost”).) He attests that “[t]he University Guidelines

specifically stated that the Provost had to approve any raise of 0% . . . .” (Doc. # 91-2, at ¶ 35.)

But Dr. Stern does not identify which “Provost” (Boosinger or Hardgrave).” (Doc. # 91-2, at ¶ 35.)

This evidence, viewed in the light most favorable to Dr. Stern, supports a reasonable inference that

Provost Hardgrave, who became provost on January 1, 2018, had to approve the decision to deny

Dr. Stern a raise.

major. He also cites his speech at the March 2018 and May 2018 University Senate

meetings. (Doc. # 90, at 162–63.)

Defendants proffer two arguments in support of summary judgment. First,

they argue that “[t]he absence of temporal proximity negates any inference of

causation.” (Doc. # 84, at 70.) Pinpointing Dr. Stern’s speech as occurring on March

20, 2018, and May 15, 2018, at the University Senate meetings, Defendants focus

on the four- and six-month gaps between Dr. Stern’s speech and the dates the denials

of the raise and bonus went into effect. (Doc. # 84, at 70.) To reiterate but not to

belabor the point, a four- to six-month lapse between the protected speech and the

alleged retaliatory conduct is not fatal to a First Amendment retaliation claim. See

Stanley, 219 F.3d at 1291–92; see Schneider, 875 F.2d at 1543 n.9; Beckwith, 58

F.3d at 1566 (finding that the circumstantial evidence created a jury issue on

causation, notwithstanding that the employee’s protected speech occurred more than

a year prior to his termination and rejecting the argument “that it takes an improbable

leap over one year in time to conclude that Appellant’s speech substantially

motivated his termination”). The temporal gap is not conclusive in Defendants’

favor.

Second, Defendants argue that multiple, legitimate reasons supported the

withholding of a raise and bonus for Dr. Stern for the 2018–19 academic year. They

contend that Dr. Stern “receive[d] a 0%–0% [raise–bonus] because of his rank

insubordination [toward Dean Aistrup], his failure to complete the self-assessment

requested by Dean Aistrup, and the ‘unacceptable’ performance review rating he

received in the spring of 2018 [from Dean Aistrup].” (Doc. # 84, at 70 (citing

Aistrup Decl. at ¶ 41, Exs. Z, AA, CC).) A jury may find that these reasons

motivated Dean Aistrup and Provost Hardgrave in giving Dr. Stern no raise and no

bonus in 2018, but there remains a genuine dispute of material fact whether these

are the actual reasons or whether Dr. Stern’s protected speech motivated the

decisions.

To explain, Defendants rely on paragraph 41 of Dean Aistrup’s declaration to

rebut causation; however, in that paragraph Dean Aistrup is discussing his reasons

for removing Dr. Stern as chair in May 2018, not his reasons for withholding a pay

raise and bonus. (Doc. # 83-3, at ¶ 41 (explaining that, “[b]ecause of his repeated

and continuing acts of insubordination, . . . I removed [Dr. Stern] as chair on May

25, 2018” and provided him with a memorandum evaluating his performance as

“unacceptable” for his failure to “submit annual review documentation”).) The

attached exhibits—Z, AA, and CC—also do not speak to the justification for the

denial of the raise and bonus. Nowhere in his affidavit does Dean Aistrup discuss

the decision to withhold a raise and bonus to Dr. Stern in 2018 or argue that the

reasons for removing Dr. Stern are synonymous with the reasons for denying him a

raise and bonus. Hence, Defendants’ reliance on Dean Aistrup’s declaration as

supplying legitimate reasons for withholding a pay raise and bonus for Dr. Stern in

2018 is insufficient to establish the absence of a genuine dispute of material fact.

See Celotex Corp., 477 U.S. at 323. Defendants present an inadequate evidentiary

record upon which to find that these reasons are the actual reasons Dr. Stern was

denied a raise and bonus in 2018.

Even if it is assumed arguendo that these are the reasons for the denials of the

raise and bonus, Dr. Stern has submitted sufficient evidence to create a genuine

dispute of material fact about the authenticity of those reasons. First, Dr. Stern

attests that in 2017, he received both a raise and a bonus, notwithstanding that his

superior (Winn) decided not to require him to undergo an annual review that year.

(Doc. # 91-2, at ¶ 22.) This evidence suggests an internal inconsistency in the annual

review requirements imposed on Dr. Stern in 2017 and 2018. See Tidwell v. Carter

Prod., 135 F.3d 1422, 1428 (11th Cir. 1998) (“[T]he identification of inconsistencies

in an employer’s testimony can be evidence of pretext.”).

Second, Dr. Stern has submitted the annual review Dean Aistrup gave Dr.

Stern on May 25, 2018, in conjunction with his removal as chair. The two-sentence

annual review, which was for the 2017–18 academic year, assigned an

“unacceptable” rating and referenced the memorandum from Provost Hardgrave

concerning requirements for a department chair’s evaluation of a faculty member.

As Dr. Stern points out, until that date, May 25, 2018, he was a chair, not a faculty

member within the meaning of Provost Hardgrave’s memorandum. This raises the

question, which Defendants do not answer, of how Dr. Stern violated Provost

Hardgrave’s memorandum since for the 2017 year he served as a chair. Further, Dr.

Stern has submitted evidence indicating that the annual review process for a chair

evaluating a faculty member is “completely different from” the annual review

process of a dean evaluating a faculty member. (Doc. # 91-2, at ¶ 33; see also Doc.

# 90, at 160.) And he testified that he was not required to do a self-evaluation as

part of his annual review every year as chair of the economics department, although

he did them occasionally when asked by the Deans. (Doc. # 83-1 at 214–15.)

Third, Dr. Stern has submitted evidence of his generally favorable

recommendations prior to his demotion as chair. (See Doc. # 89-3.) The rating of

unacceptable in 2018 was his first. (Doc. # 91-2, at ¶ 40; see also Doc. # 90, at 33.)

Fourth, Dr. Stern has submitted evidence that Dean Aistrup harbored hostility

toward Dr. Stern for his vocal protests concerning the university’s alleged clustering

of star athletes in the public administration major. (See Doc. # 83-1, at 238.) During

the same time frame, Dean Aistrup also fired off an email to Dr. Stern rebuking him

for his comments at the February 4, 2014 University Senate meeting concerning the

substantial number of athletes majoring in public administration. (See Doc. # 83-3,

at 31 (email) “My most favorite chair,” Aistrup wrote. “Did you miss the lecture on

diplomacy? . . . [Y]ou could have made your point about Athletic Advisors without

mentioning any department at the Faculty Senate meeting, especially in our college.”

. . . “[Y]our remarks did cause collateral damage on PA [public administration], in a

very public way.”).

3. The Calculation of Dr. Stern’s Raise for the 2017–18 Academic Year

and of his One-Time Merit Supplement in December 2017

In October 2017, Dr. Stern received a 3% salary increase for the 2017–18

academic year, and in December 2017, he earned a 3% one-time merit supplement.

Attributing the decision to give him a 3% raise and 3% bonus to Provost Boosinger

and Dean Aistrup, he argues that the supplements are unjustifiably low in retaliation

for his protected speech.

Defendants argue two grounds for summary judgment on this claim. First,

they contend that there is no causal link between the 2017 compensation decisions

and any protected speech. Dr. Stern did not engage in protected speech between the

publication of the Wall Street Journal article in August 2015 and August 2017 (when

the amount of Dr. Stern’s raise and one-time merit supplement was decided). (Doc.

# 83-3, at ¶ 33.) Defendants argue that this two-year gap “negates any possibility of

a causal link.” (Doc. # 84, at 69.) Second, Defendants argue that Assistant Provost

Winn (a non-party)—not Provost Boosinger or Dean Aistrup—made the decision to

cap Dr. Stern’s raise and bonus at 3%. (Doc. # 84, at 69–70 (citing Doc. # 83-3, at

¶ 33).)

Defendants are correct that the two-year gap dispels any causal link between

the calculation of the raise for the 2017–18 academic year and Dr. Stern’s protected

speech.20 Dr. Stern cites no case, and no case was found, in which this protracted

length of time was sufficient to sustain the causal link for a First Amendment

retaliation claim. Dr. Stern argues, though, that the “continuing nature of

Defendants’ retaliation makes this element less critical in the overall analysis.”

(Doc. # 90, at 112.) But in light of the substantial narrowing of the claims, Dr.

Stern’s argument loses efficacy.

The evidence contains no inferences that these 2017 pay decisions were the

result of a retaliatory motive by Dean Aistrup. In his declaration, Dean Aistrup

states:

On August 9, 2017, I became aware that Associate Provost Winn

had assigned Dr. Stern a 3% merit raise and a 3% one-time salary

supplement. I emailed him with my belief that, in order to treat Dr.

Stern consistently with other chairs in the College of Liberal Arts whose

performance was similar to his, Dr. Stern should receive a 3.5% merit

increase and one-time supplement of 4%. Associate Provost Winn’s

response was that Dr. Stern did not want more than 3% and that he

wanted those dollars to be used to add to the salary increases for faculty

members in the Economics Department. Copies of those emails are

attached hereto as exhibit “S.”

(Doc. # 83-3, at ¶ 33.) The attached emails corroborate Dean Aistrup’s declaration.

20 The same conclusion would be reached, even if Dr. Stern’s speech at the October 20,

2015 University Senate meeting had been pleaded in the Second Amended Complaint, see supra

Part V.B.

Dr. Stern has pointed to no evidence that contradicts Dean Aistrup’s, and the

pertinent section of Dr. Stern’s summary judgment brief does not mention Dean

Aistrup in connection with these pay decisions. (Doc. # 90, at 168–69.) While Dr.

Stern has supplied evidence that Provost Boosinger was involved in the decision to

cap his raise and one-time merit supplement at 3%, the evidence indicates that

Provost Boosinger at the time of the decision was “respecting [Dr. Stern’s] request

as the Director of the independent School of Economics.” (Doc. # 91-2, at ¶ 23.)

Dr. Stern believes that Provost Boosinger’s subsequent failure to increase his raise

after the economics department returned to the governance of the College of Liberal

Arts in July 2017 was substantially motivated by his speech. (Doc. # 91-2, at ¶ 24.)

But Dr. Stern has not tethered this belief to any evidence. Rather, the belief is

speculative.

Dr. Stern has not raised a genuine dispute of material fact that his speech

played a substantial part in the calculation of his raise for the 2017–18 academic year

and of his one-time merit supplement in December 2017. Accordingly, Dean

Aistrup and Provost Boosinger are entitled to summary judgment on these First

Amendment retaliation claims.

4. Whether Dr. Stern’s Speech Played a Substantial Part in the

Calculation of His Raise for the 2016–17 Academic Year

In October 2016, Dr. Stern received a raise of 3.5% for the 2016–17 academic

year. He contends that the “unjustifiably low[] permanent raise” was an act of

retaliation by Dean Aistrup and Provost Boosinger and that he should have received

a raise of at least 4.5%. (Doc. # 90, at 137, 167.) Dr. Stern does not identify the

protected speech that he contends was the basis for this retaliation. (See Doc. # 90,

at 167.)

Defendants argue that Dr. Stern cannot show a causal connection between the

October 2016 compensation decision and the protected speech that is temporally

closest—namely, the Wall Street Journal article that ran in August 2015—because

the two events are spatially separated by more than a year. (Doc. # 84, at 69.) Dr.

Stern does not respond to this argument or point to any other circumstantial evidence

to support causation. (Doc. # 90, 167.) On the record and the arguments, the

fourteen-month gap between the protected speech and the 3.5% raise is too

attenuated to raise a genuine dispute of material fact that Dr. Stern’s speech played

a substantial part in the calculation of his raise for the 2016–17 academic year.

Accordingly, Defendants are entitled to summary judgment on this First Amendment

retaliation claim.

G. Whether Defendants Would Have Made the Same Employment Decisions

in the Absence of Dr. Stern’s speech

1. Removal as Chair

The fourth prong of the Beckwith test asks “whether the government would

have made the same employment decision in the absence of the protected conduct.”

58 F.3d at 1564. The issue turns to whether Defendants have demonstrated that there

is no genuine dispute of material fact that Dean Aistrup would have removed Dr.

Stern as chair in the absence of his protected speech. Defendants advance salient

points to show that Dean Aistrup had multiple, non-retaliatory reasons for removing

Dr. Stern as chair. Those include Dr. Stern’s resistance to following the chain of

command after the economics department was moved back to the College of Liberal

Arts, Dr. Stern’s absence from leadership meetings in the College of Liberal Arts,

his refusal to complete a self-evaluation in 2018, and Dean Aistrup’s belief that Dr.

Stern was causing lasting damage to the economics department through his speech.

(See Doc. # 84, at 72–77; Doc. # 96, at 36.)

These facts support arguments that defense counsel can make to a jury;

however, they do not establish as a matter of law that Dean Aistrup would have

removed Dr. Stern as chair absent his speech in the Chronicle article. Dean Aistrup

is not entitled to summary judgment based on his Beckwith affirmative defense.

2. Dr. Stern’s Failure to Receive an Annual Evaluation in 2017 and the

Subsequent Denial of a Raise for the 2018–19 Academic Year and of a One-Time

Merit Supplement in December 2018

Defendants also contend that they prevail on their affirmative defense as to all

claims “related to Stern’s raises and bonuses” because they have shown that “the

same compensation decisions would have been made had Stern not engaged in any

constitutionally protected activity.” (Doc. # 84, at 75.) The evidence though again

relies on Dean Aistrup’s declaration; this declaration is insufficient to satisfy

Defendants’ burden for the reasons previously articulated. Namely, that declaration

does not discuss the reasons for withholding a pay raise and bonus to Dr. Stern.

Accordingly, Defendants Aistrup and Hardgrave are not entitled to summary

judgment on their affirmative defense on the First Amendment retaliation claim

predicated on the denials of a raise and one-time merit supplement in 2018.

VI. CONCLUSION

It is ORDERED that Defendant’s motion for summary judgment (Doc. # 83)

is GRANTED in part and DENIED in part.

This actions proceeds to trial on the following First Amendment retaliation

claims: 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.

Summary judgment is GRANTED in Defendants’ favor on all of Dr. Stern’s

other First Amendment retaliation claims, including all claims against former

President Steven Leath.

DONE this 31st day of March, 2022.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE