Davis v. Auburn University et al

Filing 35

MEMORANDUM OPINION AND ORDER directing as follows: (1) the defs' 30 MOTION to Dismiss the plf's federal claims be and is hereby GRANTED and the federal claims be and are hereby DISMISSED with prejudice; (2) that the plf's state law claim be and is hereby DISMISSED without prejudice; (3) that the defs' 8 Joint MOTION to Dismiss be and is hereby DENIED as moot; (4) that the plf's 19 MOTION to Strike be and is hereby DENIED as moot; and (5) that this case be and is hereby DISMISSED. Signed by Honorable Judge Charles S. Coody on 7/15/16. (djy, ) (Main Document 35 replaced on 7/15/2016 to attach correct PDF document MEMORANDUM OPINION and ORDER) (qc/djy, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
W. MATTHEW DAVIS,
Plaintiff,
v.
JAY GOUGE, et al.,
Defendants.

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CIVIL ACT. NO. 3:15cv752-CSC
(WO)

MEMORANDUM OPINION and ORDER
I. INTRODUCTION
In this 42 U.S.C. § 1983 action, the plaintiff W. Matthew Davis (“Davis”) alleges that
his civil rights secured by the First and Fourteenth Amendments to the United States
Constitution were violated by the defendants at Auburn University. Davis alleges that he was
subjected to a retaliatory termination in violation of his First Amendment right to freedom
of speech. In addition, he asserts that he was denied substantive and procedural due process
rights. Finally, he contends that he was terminated in violation of ALA CODE § 36-25-24,
Alabama’s Whistleblower statute.1 The plaintiff names as defendants Jay Gouge, President

1

ALA CODE § 36-25-24 provides as follows.

(a) A supervisor shall not discharge, demote, transfer, or otherwise discriminate against a
public employee regarding such employee's compensation, terms, conditions, or privileges
of employment based on the employee's reporting a violation, or what he or she believes in
good faith to be a violation, of this chapter or giving truthful statements or truthful testimony
concerning an alleged ethics violation.
(b) Nothing in this chapter shall be construed in any manner to prevent or prohibit or
otherwise limit a supervisor from disciplining, discharging, transferring, or otherwise
affecting the terms and conditions of a public employee's employment so long as the
disciplinary action does not result from or is in no other manner connected with the public

of Auburn University; Jay Jacobs, Athletic Director of Auburn University; David Benedict,
Chief Operating Officer of the Auburn Athletic Department; Rich McGlynn, Senior
Associate Athletics Director of Auburn University; and Kevin Robinson, Executive Director
of Internal Auditing for Auburn University.

The plaintiff seeks injunctive relief,

reinstatement, lost wages, compensatory and punitive damages and attorney fees. The court
has jurisdiction of Davis’ federal claims pursuant to 28 U.S.C. § 1331, and supplemental
jurisdiction over his state law claim pursuant to 28 U.S.C. § 1367. Pursuant to 28 U.S.C. §
636(c), the parties have consented to entry of final judgment by the United States Magistrate
Judge.
This case is pending before the court on the defendants’ motion to dismiss the

employee's filing a complaint with the commission, giving truthful statements, and truthfully
testifying.
(c) No public employee shall file a complaint or otherwise initiate action against a public
official or other public employee without a good faith basis for believing the complaint to
be true and accurate.
(d) A supervisor who is alleged to have violated this section shall be subject to civil action
in the circuit courts of this state pursuant to the Alabama Rules of Civil Procedure as
promulgated by the Alabama Supreme Court.
(e) A public employee who without a good faith belief in the truthfulness and accuracy of
a complaint filed against a supervisor, shall be subject to a civil action in the circuit courts
in the State of Alabama pursuant to the Alabama Rules of Civil Procedure as promulgated
by the Supreme Court. Additionally, a public employee who without a good faith belief in
the truthfulness and accuracy of a complaint as filed against a supervisor shall be subject to
appropriate and applicable personnel action.
(f) Nothing in this section shall be construed to allow a public employee to file a complaint
to prevent, mitigate, lessen, or otherwise to extinguish existing or anticipated personnel
action by a supervisor. A public employee who willfully files such a complaint against a
supervisor shall, upon conviction, be guilty of the crime of false reporting.
ALA CODE § 36-25-24 (1975).

2

plaintiff’s amended complaint (doc. # 30) to which the plaintiff has responded (doc. # 32).2
On February 2, 2016, the court heard oral argument on the motion to dismiss. After careful
consideration of the motion to dismiss, the plaintiff’s response, and for good cause, the court
concludes the motion to dismiss is due to be GRANTED.
II. STANDARD OF REVIEW
In ruling on a motion to dismiss for failure to state a claim upon which relief can be
granted, the court must accept well-pled facts as true, but the court is not required to accept
a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (“[T]he tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions”). In evaluating the sufficiency of a plaintiff’s pleadings, the court must
indulge reasonable inferences in plaintiff’s favor, “but we are not required to draw plaintiff’s
inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir.
2005). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true
for the purpose of testing the sufficiency of plaintiff’s allegations. Id.. See also Iqbal, 556
U.S. at 681 (stating conclusory allegations are “not entitled to be assumed true”).
A complaint may be dismissed if the facts as pled do not state a claim for relief that
is plausible on its face. See Iqbal, 556 U.S. at 679 (explaining “only a complaint that states
a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550

2

Also pending before the court is the defendants’ joint motion to dismiss (doc. # 8) filed on
November 25, 2015 and the plaintiff’s motion to strike (doc. # 19) filed on December 21, 2015. These
motions were filed prior to the plaintiff’s filing of an amended complaint on January 11, 2016.
Consequently, these motions are due to be denied as moot.

3

U.S. 544, 561-62, 570 (2007) (retiring the prior “unless it appears beyond doubt that the
plaintiff can prove no set of facts” standard). In Twombly, the Supreme Court emphasized
that a complaint “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” 550 U.S. at 555. Factual allegations in a
complaint need not be detailed but “must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. (internal citations and emphasis omitted). In Iqbal, the Supreme Court
reiterated that although Fed. R. Civ. P. 8 does not require detailed factual allegations, it does
demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 556
U.S. at 678. The well-pled allegations must nudge the claim “across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570.
III. DISCUSSION
In Count One, Davis alleges he was terminated in retaliation for exercising his First
Amendment right of freedom of speech when he spoke out about ticketing improprieties at
Auburn University in the Tigers Unlimited program. In Count Two, the plaintiff alleges that
he was denied substantive and procedural due of law because he was terminated without
cause and for false reasons, and he did not receive a fair and impartial hearing. Finally, in
Count Three, the plaintiff alleges that he was terminated in violation of the Alabama
Whistleblower Act, Ala. Code § 36-25-4. The court addresses each claim seriatim.
A. Claims against Defendants in their official capacities for money damages.
To the extent Davis sues the defendants in their official capacities, the defendants
4

argue that they are state officers and entitled to Eleventh Amendment immunity.
Consequently, they argue that they are not subject to civil liability under § 1983.3 Will v.
Michigan Dept. of State Police, 491 U.S. 58 (1989). See also, Quern v. Jordan, 440 U.S. 332
(1979) (holding that § 1983 was not intended to abrogate a state’s Eleventh Amendment
immunity).
A state official may not be sued in his official capacity unless the state has
waived its Eleventh Amendment immunity, see Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67 (1984),
or Congress has abrogated the state’s immunity, see Seminole Tribe v. Florida,
517 U.S. 44, [59], 116 S. Ct. 1114, 1125, 134 L. Ed. 2d 252 (1996). Alabama
has not waived its Eleventh Amendment immunity, see Carr v. Florence, 916
F.2d 1521, 1525 (11th Cir. 1990) (citations omitted), and Congress has not
abrogated Alabama’s immunity. Therefore, Alabama state officials are
immune from claims brought against them in their official capacities.
Lancaster v. Monroe County, 116 F.3d 1419, 1429 (11th Cir. 1997).
The plaintiff concedes that his claims for monetary damages against the individual
defendants in their official capacities are due to be dismissed. (Doc. # 32 at 8). Thus, the
defendants’ motion to dismiss any claims for monetary relief against them in their official
capacities is due to be granted because they are absolute immune from damages in their
official capacities.
B.

First Amendment Claim - Retaliatory Termination (Count One). The court

now turns to Davis’ claim that he was terminated in retaliation for exercising his First
Amendment right to freedom of speech. Specifically, Davis asserts that he

3

Eleventh Amendment immunity does not foreclose suits for injunctive and/or declaratory relief; rather,
if applicable, it forecloses suits for compensable damage awards.

5

spoke out as a private citizen about matters of public concern when he raised
issues related to ticketing improprieties to Auburn University Chief Operating
Officer David Benedict while acting as an alumni and fan. Plaintiff further
exercised his First Amendment rights as a private citizen to speak about
matters of public concern when his representatives sent the December 11,
2014, letter on his behalf to various members of the Auburn University
Administration and Board and certain Auburn University boosters which
contained the statements he had earlier made to Benedict.
(Doc. # 25 at 9, ¶ 40).
A government employer may not terminate a public employee in retaliation for speech
protected under the First Amendment. See Rankin v. McPherson, 483 U.S. 378 (1987) ( “It
is clearly established that a State may not discharge an employee on a basis that infringes that
employee's constitutionally protected interest in freedom of speech.”); Garcetti v. Ceballos,
547 U.S. 410, 417 (2006) (“The Court has made clear that public employees do not surrender
all their First Amendment rights by reason of their employment.) See also Alves v. Bd. of
Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1159 (11th Cir. 2015). As a public
employee Davis, however, “does not enjoy an absolute right to freedom of speech.” Maggio
v. Sipple, 211 F.3d 1346, 1351 (11th Cir. 2000). See also Carter v. City of Melbourne, Fla.,
731 F.3d 1161, 1168 (11th Cir. 2013) quoting Bryson v. City of Waycross, 888 F.2d 1562,
1565 (11th Cir. 1989).
In Garcetti, we described a two-step inquiry into whether a public employee’s
speech is entitled to protection:
“The first requires determining whether the employee spoke as
a citizen on a matter of public concern. If the answer is no, the
employee has no First Amendment cause of action based on his
or her employer’s reaction to the speech. If the answer is yes,
then the possibility of a First Amendment claim arises.
6

*

*

*

In describing the first step in this inquiry, Garcetti distinguished
between employee speech and citizen speech. Whereas speech
as a citizen may trigger protection, the 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.” Id. at 421,
126 S.Ct. 1951.
Lane v. Franks, — U.S. —, —, 134 S.Ct. 2369, 2378 (2014).
The threshold issue, therefore, is whether Davis spoke as a citizen on “matters of
public concern.” See Lane, — U.S. at —; 134 S.Ct. at 2378. See also Connick v. Myers, 461
U.S. 138 (1983); Boyce v. Andrew, 510 F.3d 1333, 1342 (11th Cir. 2007) (citing D’Angelo
v. School Bd. of Polk Cnty, Fla., 497 F.3d 1203, 1209 (11th Cir. 2007)) (the court must
determine “(1) if the government employee spoke as an employee or citizen and (2) if the
speech addressed an issue relating to the mission of the government employer or a matter of
public concern.”). If the court determines that the plaintiff did not speak “as a citizen on a
matter of public concern,” Davis “has no First Amendment cause of action based on his ...
employer’s reaction to the speech.” Garcetti, 547 U.S. at 418. See also D’Angelo, 497 F.3d
at 1209.
“Whether a plaintiff has engaged in speech protected by the First Amendment is a
question of law which must be determined by the district court before a § 1983 claim can be
submitted to the jury.” Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir.
2002). Davis alleges the following facts in his amended complaint. See Doc. # 25. Davis

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was employed at Auburn University as the Director of Priority Program/Director of Sales for
Auburn University’s Tigers Unlimited ticket program. (Doc. # 25 at 3, ¶ 8). Davis reported
to Tim Jackson4 and David Benedict, the Chief Operating Officer of Auburn’s Athletic
Department. (Id. at ¶ 10). In 2014, during an audit, Davis discovered that “between 3,500
and 3,800 seats per year in the Tigers Unlimited donor area were not being utilized for the
Tiger Unlimited program.” (Id. at ¶ 11). According to Davis, these tickets were being sold
at face value instead of at the Tigers Unlimited ticket premium price. (Id).
Sometime in June or July 2014, Davis “reported these seating discrepancies to David
Benedict and told Benedict that the University was missing out on significant revenue by not
selling these tickets through Tigers Unlimited.” (Id. at ¶ 12). Davis reported other statements
to Benedict regarding customers purchasing Tiger Unlimited tickets without the benefit of
the Tigers Unlimited memberships. Davis was concerned that “hundreds of seats in the
stadium [were] incorrectly marked and invoiced at a lesser contribution level causing losses
in revenue and suggested to Benedict that the Tigers Unlimited per seat contributions be
audited . . .” (Id. at 4, ¶ 16). In the amended complaint, Davis asserts that he spoke to
Benedict because the “University was missing out on significant revenue by not selling these
tickets through Tigers Unlimited.” (Id. at 3, ¶ 12 and 4, ¶ 16).

4

In the amended complaint, the plaintiff does not identify Jackson’s role at Auburn University.
However, in his brief in opposition to the motion to dismiss and at oral argument on the motion, counsel for
the plaintiff asserted that Davis reported directly to Jackson. (Doc. # 34, Tr. at 25). Argument of counsel is,
of course, not a substitute for evidence. The burden is on the parties to present facts in support of their
positions. See generally Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d
1563, 1568 (11th Cir. 1994). Thus, the court considers only the facts stated in the amended complaint.

8

In the fall of 2014, the University, in conjunction with the Athletic Department, began
an investigation into alleged gambling involving student athlete information. (Id., at 4, ¶ 18).
While investigating the alleged gambling, it was discovered that Davis was communicating
with Mark Tilson, an Athletic Department consultant. (Id. at 4-5, ¶ 19). Unbeknownst to
Davis, Tilson’s consulting contract had ended, and Tilson was bidding on a new contract for
sales and marketing support to the Tigers Unlimited program. (Id. at 5, ¶¶ 19 & 20).
According to the University, Davis’ communications with Tilson during the bid process were
inappropriate. (Id. at ¶ 21).
On September 19, 2014, Davis was called into a meeting with Kevin Robinson, the
Director of Internal Accounting, and questioned about Tilson’s bid for the sales contract. (Id.
at ¶ 23). On September 24, 2014, Davis was suspended from his position at Auburn
University pending further investigation. (Id. at 6, ¶ 24).
Davis retained counsel and on December 11, 2014, his attorney “sent a letter to
numerous Auburn officials and board members5, . . . inquiring into Davis’ employment status
and raising several concerns, including the ‘alleged’ investigation that was being conducted
by Kevin Robinson and detailing the previous complaints that Davis raised with Benedict
prior to the Athletic Department beginning an investigation into the vague allegations of
gambling improprieties.” (Id. at ¶ 25) (footnote added).
On December 18, 2014, Davis received a response from Auburn providing him notice

5

In the amended complaint, Davis identifies Gouge and Jacobs as well as “numerous Auburn
officials and board members” as recipients of the letter.

9

of the investigation into “his potentially releasing student athlete information for gambling
purposes.” (Id. at ¶ 26). Davis was also notified that during that investigation, his
communications with Tilson was discovered. (Id.)
On February 17, 2015, Davis met with Auburn University officials and was presented
with a termination letter. (Id. at 7, ¶ 29). Davis was “being terminated because his actions
in communicating with Tilson were ‘questionable at best.’” (Id.)
Davis was subsequently terminated “and notified of his rights to appeal through the
grievance procedure.” (Id. at 8, ¶ 38). There is no allegation in the amended complaint that
Davis pursued an appeal of his termination.
In their motion to dismiss, the defendants assert that Davis’ speech is not protected
by the First Amendment because he was speaking as an employee and not a citizen, and he
spoke on a matter related to his job duties and not on a matter of public concern.6 See Doc.
# 30 at 9-19. Davis responds that he spoke to Benedict as “a concerned Auburn alumni and
fan of Auburn Athletics with the intent of helping the Athletic Department improving (sic)
its financial situation” is sufficient to establish that he was speaking as a private citizen on
a matter of public concern and defeat the defendants’ motion to dismiss. The court cannot
agree.

Davis’ conclusory statement that his reports to Benedict about the ticketing

discrepancies were made as a concerned alumni and fan is a legal conclusion unsupported

6

The defendants further assert that even if Davis’ speech was protected by the First Amendment,
they are entitled to qualified immunity. The court pretermits discussion of the defendants’ qualified
immunity defense.

10

by facts.
Because an employee’s speech is “rarely []entirely private or entirely public,” the
court makes the determination of whether an employee’s speech is a matter of public concern
“by examining ‘the content, form, and context of a given statement, as revealed by the whole
record.’” Maggio, 211F.3d at 1352 quoting Connick, 461 U.S. at 147. “The inquiry turns
on the “content, form, and context” of the speech. Lane, — U.S. at —, 134 S.Ct. at 2380.
After a thorough review of the amended complaint, considering the content, form and context
of Davis’ speech, the court concludes that Davis spoke primarily as an employee on matters
related to his job.
First, when Davis spoke to Benedict, his speech concerned ticketing improprieties
involving the Tiger Unlimited ticket program of which he was the Director. He had access
to the requisite information and learned about the ticketing discrepancies only through his
employment at Auburn. (Doc. # 25, Am. Compl. at 3, ¶ 11). Davis reported his concerns to
Benedict in Benedict’s capacity as the Chief Operating Officer of the Auburn Athletic
Department. (Id., at ¶ 10). As the Director of the Priority Program/Director of Sales for the
Tigers Unlimited program, Davis reported to Benedict, and his speech was related to his
position as Director. (Id.) Davis’ speech to Benedict was motivated by his concern that the
University “was missing out on significant revenue by not selling these tickets through Tigers
Unlimited.” (Id. at ¶ 12).
Davis’ statements to Benedict were made internally and were designed to improve the
financial condition of the department in which he was employed. (Id. at 3, ¶ 12 and 4, ¶ 16).
11

He spoke to Benedict at his place of employment concerning matters that related to his job
responsibilities. See Alves, 804 F.3d at 1161 (“Practical factors that may be relevant to, but
are not dispositive of, the inquiry include the employee’s job description, whether the speech
occurred at the workplace, and whether the speech concerned the subject matter of the
employee’s job.”) (emphasis in original). All of Davis’ speech to Benedict related to the
Tigers Unlimited ticketing program and was related to his job as Director. It matters not that
Davis spoke to Benedict without first speaking to his supervisor Jackson because Davis
admits in his amended complaint that Benedict was also his supervisor. (Doc. # 25, Am.
Compl. at 3, ¶ 10).7
Although Davis asserts that he was speaking as an alumni and a fan, this statement is
simply a legal conclusion couched as a fact, and is insufficient to overcome all the facts that
demonstrate that his speech was derived from his employment as Director of the Priority
Program/Director of Sales for the Tigers Unlimited program. Davis’ speech about ticketing
improprieties in the Tiger Unlimited ticket program “owes its existence” to his position as
Director. See Garcetti, 547 U.S. at 421-22 (“Restricting speech that owes its existence to a
public employee’s professional responsibilities does not infringe on any liberties the
employee might have enjoyed as a private citizen.”). See also Abdur-Rahman v. Walker, 567
F.3d 1278, 1285 (11th Cir. 2009) (“Speech that owes its existence to the official duties of

7

Davis argues in brief, (Doc. # 32, Pl’s Br. at 3) that his first speaking to Benedict supports a
conclusion that “he was not raising these issues in the course of his job . . .” (Id.). This inference is
unwarranted. Nothing in the amended complaint suggests that the administrative structure of the Auburn
Athletics Department is rigidly hierarchical such that as an employee Davis could not communicate with
Benedict.

12

public employees is not citizen speech even if those duties can be described so narrowly as
to not mandate the act of speaking.”). Davis’ speech regarding ticketing improprieties cannot
be separated from his employment as Director of the Priority Program/Director of Sales for
the Tigers Unlimited program. The subject matter of Davis’ job was priority ticket sales
through the Tiger Unlimited program. Davis cannot divorce his speech about ticketing
improprieties in the very program in which he was employed as the Director. See Id. The
court concludes that Davis’ speech was derived from and related to his job duties and
responsibilities. Davis’ speech “was made in furtherance of his . . . responsibilities . . . and
not as a private citizen.” Moss v. City of Pembroke Pines, 782 F.3d 613, 619 (11th Cir.
2015). Thus, the court concludes that Davis was not speaking as a private citizen when he
spoke to Benedict about his concerns about priority ticket sales through the Tigers Unlimited
program.
Furthermore, the court concludes that the matters about which Davis spoke to
Benedict all relate to Davis’ concerns as the Director of the Priority Program/Director of
Sales for the Tigers Unlimited program, and related to the manner in which tickets were
being sold at Auburn University. Thus, the speech was not on a matter of public concern.
See Maggio, 211 F.3d at 1352 discussing Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993).
Davis’ speech consisted of voicing his concern that non-Tiger Unlimited members were
purchasing tickets without paying the membership premium. As the Director of the Priority
Program/Director of Sales for the Tigers Unlimited program, the “main thrust” of Davis’
speech was not to “raise issues of public concern,” but rather to raise concerns related to his
13

job responsibilities in the Tigers Unlimited program. Davis’ speech was specifically related
to ticketing sales in the very program over which he was the Director. Maggio, supra.
“[W]hen public employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421. See also
Abdur-Rahman, 567 F.3d at 1283; Moss, 782 F.3d at 618; Rister v. Meese, 610 F. App’x 960,
960 (11th Cir. 2015). Thus, the court concludes that Davis was not speaking on matter of
public concern when he advised Benedict of his concerns related to the Tiger Unlimited
ticketing program.
If the government employee speaks “not as a citizen upon matters of public
concern, but instead as an employee upon matters only of personal interest,
absent the most unusual circumstances, a federal court is not the appropriate
forum in which to review the wisdom of a personnel decision taken by a public
agency allegedly in reaction to the employee's behavior.” Connick, 461 U.S.
at 147, 103 S.Ct. at 1690.
Maggio, 211 F.3d at 1351-52. See also Morgan, 6 F.3d at 754.
Davis asserts that he ‘spoke out’ “while acting as an alumni and a fan.” (Doc. # 25
at 9, ¶ 40). Nowhere in the amended complaint does Davis allege a public interest in his
speech.8 Moreover, Davis may not turn personal speech “into a matter of public concern by
invoking a supposed popular interest in the way public institutions are run.’” Boyce, 510
F.3d at 1344. “[T]he mere fact that the topic of the employee’s speech was one in which the
8

At oral argument on the motion to dismiss, counsel asserted that the ticketing improprieties
amounted “people stealing from the University” by a “scheme of people being hooked up with these tickets
without having to pay the premium.” (Doc. # 34, Tr. at 5). Argument of counsel is not a an acceptable
substitute for facts missing from the amended complaint.

14

public might or would have had a great interest is of little moment.” Morgan, 6 F.3d at 754
quoting Kurtz v. Vickrey, 855 F.2d 723, 727 (11th Cir. 1988).
Davis did not make his concerns about the Tigers Unlimited ticketing program public
until after he was terminated, and as serious as his allegations were about ticket
improprieties, Davis’ speech was motivated by his position as Director of Priority
Sales/Director of Sales for the Tigers Unlimited program. See Morgan, 6 F.3d at 754-55.
“[T]he relevant inquiry is not whether the public would be interested in the topic of the
speech at issue but rather is “whether the purpose of [the plaintiff’s] speech was to raise
issues of public concern.” Maggio, 211 F.3d at 1353. See also Sherrod v. Bd. of St. Lucie
Cty., 635 F. App’x 667, 672 (11th Cir. 2015) (Speech which happens “to touch on a topic of
potential public concern is not enough to transform [it] into constitutionally protected
speech.”).
To the extent that Davis asserts that his representative’s December 11, 2014 letter to
Auburn University officials is protected speech under the First Amendment, Davis has failed
to state a plausible claim that the speech was on a matter of public concern. In his amended
complaint, Davis affirmatively states the following regarding the letter.
25.
Davis heard nothing from Auburn regarding the investigation and
retained counsel to intervene. On December 11, 2014, Davis’ counsel sent a
letter to numerous Auburn officials and board members, including Gouge and
Jacobs, inquiring about Davis’ employment status and raising several
concerns, including the “alleged” investigation that was being conducted by
Kevin Robinson and detailing the previous complaints that Davis had raised
with Benedict prior to the Athletic Department beginning an investigation into
the vague allegations of gambling improprieties.

15

(Doc. # 25 at 6, ¶ 25).
In support of their motion to dismiss, the defendants attached a copy of the December
11, 2014 letter. In general, when the court considers matters outside the pleadings on a
motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6), the motion is converted into a motion
for summary judgment pursuant to FED.R.CIV.P. 56. However, the court may consider
exhibits attached to the motion to dismiss in certain circumstances.
Our Rule 12(b)(6) decisions have adopted the “incorporation by reference”
doctrine, see In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970
(9th Cir.1999), under which a document attached to a motion to dismiss may
be considered by the court without converting the motion into one for
summary judgment only if the attached document is: (1) central to the
plaintiff's claim; and (2) undisputed. See Harris v. Ivax Corp., 182 F.3d 799,
802 n. 2 (11th Cir.1999). “Undisputed” in this context means that the
authenticity of the document is not challenged. See, e.g., Beddall v. State Street
Bank and Trust Co., 137 F.3d 12, 16–17 (1st Cir.1998); GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997);
Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994).
Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). See also Fuller v. SunTrust Banks,
Inc., 744 F.3d 685, 696 (11th Cir. 2014) abrogated on other grounds Stargel v. SunTrust
Bank, Inc., 791 F.3d 1309 (11th Cir. 2015) (“This [C]ourt recognizes an exception, however,
in cases in which [1] a plaintiff refers to a document in its complaint, [2] the document is
central to [her] claim, [3] its contents are not in dispute, and [4] the defendant attaches the
document to its motion to dismiss.”); Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir.
1999) (“[A] document central to the complaint that the defense appends to its motion to
dismiss is also properly considered, provided that its content are not in dispute.”)
Davis refers to the letter in his amended complaint. See Doc. # 25 at 6, ¶¶ 25 & 26
16

and 9, ¶ 40. The letter is central to Davis’ claims, and Davis does not challenge the
authenticity of the letter. Thus, the court considers the contents of the letter when
considering the defendants’ motion to dismiss. In the letter, Davis inquires about his
employment status. See Doc. # 30, Ex. D. The letter, therefore, was motivated by Davis’
interest in his continued employment. See Morgan, 6 F.3d at 755; Maggio, 211 F.3d at 1354.
Davis contends that because he sent the letter to “boosters” in addition to Auburn officials
and board members, the letter constitutes speech by a citizen on a matter of public concern.
As specifically set out in paragraphs 9, 11-17 above, Plaintiff spoke out as a
private citizen about matters of public concern when he raised issues related
to ticketing improprieties to Auburn University Chief Operating Officer David
Benedict while acting as an alumni and fan. Davis further exercised his First
Amendment rights as a private citizen to speak about matters of public concern
when his representative sent the December 11, 2014, letter on his behalf to
various members of the Auburn University Administration and Board and
certain Auburn University boosters which contained the statements he had
earlier made to Benedict.
(Doc. # 25, Am. Compl. at 9, ¶ 40) (emphasis added).
Davis does not identify the boosters or the Auburn officials that received a copy of
the letter. However, it is apparent from the letter, that it was sent to employees of Auburn
University, members of the Board of Trustees for Auburn University, and board members
of the Tigers Unlimited Foundation. See Doc. # 30, Ex. D. The letter was not sent to
members of the general public. Thus, the court concludes that the letter was directly related
to Davis’ self interest in his employment with Auburn University. The court further
concludes that the letter was sent on Davis’ behalf as an employee of Auburn University’s
athletic department, related to Davis’ employment as Director of Priority Program/Director
17

of Sales of the Tigers Unlimited program, and was not a matter of public concern.
Accordingly, for the reasons as stated, the court concludes that because the plaintiff has
failed to establish that he spoke as a private citizen about matters of public concern, he has
failed to state a plausible First Amendment claim, and the defendants’ motion to dismiss is
due to be granted.
C. Substantial and Procedural Due Process Claims (Count Two). The plaintiff’s
substantive and procedural due process claims are premised on his allegation that he was
denied adequate notice of the allegations against him, was not informed of his rights, and was
denied the opportunity to present witnesses at his pre-termination hearing. (Doc. # 25 at 10,
¶ 47). The court turns first to Davis’ substantive due process claim. In a very conclusory
fashion, Davis contends that he was deprived “of his statutory and constitutional rights
granted by the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983
and Ala. Code § 36-26-100 et seq.” (Doc. # 25 at 10, ¶ 44).
“The substantive component of the Due Process Clause protects those rights
that are ‘fundamental,’ that is, rights that are ‘implicit in the concept of
ordered liberty.’” McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en
banc). Fundamental rights are those rights created by the Constitution.
DeKalb Stone, Inc. v. County of Dekalb, Ga., 106 F.3d 956, 959 n. 6 (11th Cir.
1997) (per curiam). “Property rights, or course, are not created by the
Constitution. Rather, they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as
state law.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709,
33 L.Ed.2d 548 (1972); see also Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th
Cir. 2002).
Greenbriar Village, L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1263 (11th Cir. 2203).
Although Davis complains that his substantive due process rights were violated, he
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must do more than simply assert that he is entitled to relief. “[A] plaintiff’s obligation to
provide the ‘grounds’ of his‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]”
Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). See also
Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. 2007) (plaintiff’s
“complaint must include “[f]actual allegations [adequate] to raise a right to relief above the
speculative level” quoting Twombly, supra). After a careful examination of the facts as
stated in the amended complaint, the court concludes that Davis has failed to state a viable
substantive due process claim. The Eleventh Circuit has clearly stated that there is no
substantive due process right to employment; rather only procedural due process rights are
available to pretextually terminated employees. McKinney v. Pate, 20 F. 3d 1550, 1560 (11th
Cir. 1994). It follows then that plaintiff’s claims for substantive due process violations are
due to be dismissed with prejudice for failure to state a claim.
Davis also alleges that he was denied procedural due process in the pre-termination
hearing process. As a matter of law, no procedural due process violation occurs unless and
until the state refuses to provide an opportunity to remedy the alleged bias,9 or other
procedural due process deprivations.10 The McKinney Court held that
procedural due process violations do not become complete “unless and until
the state refuses to provide due process.” Zinermon, 494 U.S. at 123, 110 S.Ct.
at 983. More specifically, in the case of an employment termination case, “due
9

10

McKinney v. Pate, 20 F.3d 1550, 1562 (11th Cir. 1994).
Tinney v. Shores, 77 F.3d 378, 381-82 (11th Cir. 1996).

19

process [does not] require the state to provide an impartial decisionmaker at
the pre-termination hearing. The state is obligated only to make available ‘the
means by which [the employee] can receive redress for the deprivations.’”
Schaper v. City of Huntsville, 813 F.2d 709, 715-16 (5th Cir. 1987) (quoting
Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420
(1981)) (footnote omitted). . . .
*

*

*

[E]ven if [the plaintiff] suffered a procedural deprivation at the hands of biased
[University officials] at his termination hearing, he has not suffered a violation
of his procedural due process rights unless and until the State of [Alabama]
refuses to make available a means to remedy the deprivation. As any bias on
the part of the [University officials] was not sanctioned by the state and was
the product of the intentional acts of the [University officials], . . . only the
state's refusal to provide a means to correct any error resulting from the bias
would engender a procedural process violation.
McKinney, 20 F. 3d at 1562.
The court concludes that the plaintiff fails to allege a valid procedural due process
claim because he has not alleged in his amended complaint that Alabama law provided him
an inadequate post-deprivation remedy. See Tinney v. Shores, 77 F.3d 378, 382 (11th Cir.
1996). Davis admits in his amended complaint that he was advised of his rights to appeal his
termination through the grievance process. (Doc. # 25 at 8, ¶ 38). The plaintiff does not
allege in his amended complaint that he attempted to take advantage of any state remedies
and was denied; rather, the plaintiff chose to file his claim in federal court. See McKinney,
20 F.3d at 1562. Davis has the burden of demonstrating the absence of meaningful state
post-deprivation proceedings. This he fails to do. Accordingly, the court concludes that the
plaintiff has failed to state a procedural due process claim upon which relief could be
granted.
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Furthermore, to invoke the protection of procedural due process, Davis must allege
“(1) deprivation of a constitutionally protected property interest; (2)
governmental action; and (3) constitutionally inadequate process.”
Miccosukee Tribe of Indians of Fla. v. United States, 716 F.3d 535, 559 (11th
Cir. 2013). We question whether Plaintiff[] successfully alleged the first
element, i.e., the deprivation of a constitutionally protected property interest.
We have said that “no procedural due process claim exists until a sufficiently
certain property right under state law is first shown.” Greenbriar Vill. [v.
Mountain Brook City,] 345 F.3d [1258], 1265 [(11th Cir. 2003) (per curiam)].
Ford v. Strange, 580 F. A’ppx 701, 711 (11th Cir. 2014)
Davis argues the employee handbook at Auburn University creates a property interest
in his employment sufficient to support a procedural due process claim. The court concludes
that Davis has not set forth sufficient facts to demonstrate that his procedural due process
claim is plausible particularly in light of Alabama law. “The general rule in Alabama is that
an employment contract at will may be terminated by either party with or without cause or
justification.” McCluskey v. Unicare Health Facility, Inc., 484 So. 2d 398, 400 (Ala. 1986).
See also, Harper v. Winston County, 892 So. 2d 346, 351 (Ala. 2004). However, “the
employment-at-will relationship can be modified by provision in an employee handbook by
which an employer promises not to discharge an employee except by specified procedures
or for specified causes.” Campisi v. Scoles Cadillac, Inc., 611 So. 2d 296, 298 (Ala. 1992).
Of course, to become a binding promise, the language used in the handbook
must be specific enough to constitute an actual offer rather than a mere
general statement of policy. However, whether a proposal is meant to be an
offer for a unilateral contract is determined by the outward manifestations of
the parties, rather than by their uncommunicated beliefs.... Indeed, if the
employer does not wish the policies contained in an employee handbook to be
construed as an offer for a unilateral contract, he is free to so state in the
handbook.
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Hoffman–LaRoche, Inc. v. Campbell, 512 So. 2d 725, 735 (Ala.1987) (emphasis added).
Davis makes general legal conclusions about the effect of language in the handbook
but he does not include any language from the handbook, nor does he attach a copy of the
handbook to his amended complaint. The defendants attached a copy of the handbook to
their motion to dismiss. Because the handbook is central to Davis’ procedural due process
claim, and Davis does not dispute the contents of the handbook, the court properly considers
the document. See Horsley, 304 F.3d at 1134; Harris, 182 F.3d at 802, n.2.
The question of whether a handbook policy constitutes a binding contract “is a matter
of law to be determined by the court.” Stinson v. Am. Sterilizer Co., 570 So. 2d 618, 621
(Ala. 1990). A review of section 1.1.3 of the employee handbook establishes that the
language is a general policy statement, not a specific promise sufficient to modify the
employment-at-will relationship between Davis and Auburn University.
Occasionally, the University, just as any other large organization, has to make
decisions without prior consultation with its employees. The University must,
therefore, maintain executive discretion to exercise the customary functions of
management including, but not limited to, the discretion to select, hire,
promote, transfer, demote, suspend, dismiss, assign, supervise, and discipline
employees; . . .This manual is not an employee contract but rather a
collection of university policies and information that will be of practical
use to employees.
(Doc. # 30, Ex. C at 5).
Under Alabama law, general policy statements in the handbook are insufficient to
create a binding contract. “If the employer reserves in the employee handbook the right to
change policies unilaterally, its reservation operates as a disclaimer to negate any inference

22

that the handbook constitutes an enforceable contract.” Harper, 892 So. 2d at 351. The
specific language of this section is sufficient to preclude enforcing the handbook as a
contract.
Davis argues that section 8.5, Involuntary Terminations, creates a protectable property
interest because that section provides that an employees “generally only subject to discipline
for cause.” (Doc. # 30, Ex. C at 43.). A review of the entire section demonstrates that the
language is not specific enough to alter Davis’ at-will employment status.
8.5 Involuntary Termination. Auburn University reserves the right to
manage its workforce as stated in section 1.1.3. However, consistent with
sound management practices, employees are generally only subject to
discipline or dismissal for cause. Each individual case for dismissal will be
evaluated on its own set of circumstances. Proper procedures for dismissing
an employee from the University are essential to ensure that any employee’s
rights are protected. This is accomplished through an appropriate hearing
which is conducted to ensure that the employee’s position is heard and
evaluated by supervision before any final decision is made. . . .
(Id.)
The provisions of the employee handbook, considered in its entirety, are not specific
enough to create a binding employment contract. The section states that employees “are
generally” only subject to dismissal for cause, and it states that each individual case . . . will
be evaluated on its own set of circumstances.” (Id.) (emphasis added). Auburn retains
“executive discretion . . . including, but not limited to, the discretion to . . . dismiss”
employees. The University also retains the discretion to deviate from or alter its policies and
procedures. See Doc # 30, Ex. C at 5. Consequently, the court concludes that “the
handbook, as a matter of law, could not reasonably be construed as a unilateral contract of
23

employment, modifying [Davis’] employment-at-will status; the handbook, as a matter of
law, could not be construed as constituting an enforceable contract of employment.” Stinson,
570 So. 2d at 622. See also Harper, 892 So. 2d at 352.
Based on the state of the law in Alabama, coupled with the language contained in the
handbook, the court concludes that the handbook language upon which Davis relies is not
specific enough to constitute a binding promise. Accordingly, the court concludes that Davis
has failed to allege a plausible procedural due process claim, and the defendants’ motion to
dismiss is due to be granted.
D. State Law Whistleblower Claim (Count Three). The court’s exercise of
supplemental jurisdiction over the remaining state law claim is discretionary. Under 28
U.S.C. § 1367(c)(3), the court may “decline to exercise supplemental jurisdiction over a
[state law] claim if the district court has dismissed all claims over which it has original
jurisdiction . . . ” The court declines to exercise supplemental jurisdiction over the
plaintiff’s state law claim, and this claim is due to be dismissed without prejudice.
IV. CONCLUSION
Accordingly, for the reasons as stated, it is
ORDERED and ADJUDGED as follows:
1.

That the defendants’ motion to dismiss the plaintiff’s federal claims (doc. # 30)

be and is hereby GRANTED and the federal claims be and are hereby DISMISSED with
prejudice;
2.

That the plaintiff’s state law claim be and is hereby DISMISSED without
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prejudice;
3.

That the defendants’ joint motion to dismiss (doc. # 8) filed on November 25,

2015 be and is hereby DENIED as moot;
4.

That the plaintiff’s motion to strike (doc. # 19) filed on December 21, 2015.

be and is hereby DENIED as moot; and
5.

That this case be and is hereby DISMISSED.

A separate final judgment will be entered
Done this 15th day of July, 2016.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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