Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 1 of 18 DAVID MICHAEL SMITH, PH.D, PLAINTIFF, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION V. NO. 3:13-cv-307 COLLEGE OF THE MAINLAND AND BOARD OF TRUSTEES FOR COLLEGE OF MAINLAND, DR. BETH LEWIS, PRESIDENT OF COLLEGE, AND DR. AMY LOCKLEAR, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS. PLAINTIFF S, DAVID MICHAEL SMITH, ORIGINAL COMPLAINT DAVID MICHAEL SMITH, hereinafter and sometimes referred to as Plaintiff, files this his original complaint complaining with regards to his termination of his employment. It is Plaintiff s position his termination was in violation of his federal rights (First Amendment). This lawsuit is brought against COLLEGE OF THE MAINLAND, BOARD OF TRUSTEES OF COLLEGE AND INDIVIDUAL DEFENDANTS, DR. BETH LEWIS AND DR. AMY LOCKLEAR, in their individual and official capacities. All Defendants are hereinafter and sometimes referred to as Defendants. Plaintiff would submit and show unto the Court as follows: JURISDICTION AND VENUE 1. Jurisdiction vests with this Court under 28 United States Code sections 1331 (federal question) and 1343 (civil 1
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 2 of 18 rights cases; First Amendment); U.S. CONST. Amend. I. 2. This complaint is also brought pursuant to 42 United States Code section 1983. 3. All actions giving rise to this matter occurred in Galveston County, Texas. PARTIES 4. Plaintiff, David Michael Smith, is a resident of the County of Galveston at all times material to this action, and at one time was an employee of Defendant College of the Mainland a governmental entity, until his termination from his employment. It is Plaintiff s belief his termination was in retaliation of his exercising and fighting to protect his and others First Amendment rights. 5. Defendant, Dr. Beth Lewis, is the President of the College of Mainland, at all times material to this action. 6. Defendant, Dr. Amy Locklear, serves in the position of Vice President for Instruction. 7. College of the Mainland is an educational institution located primarily in Texas City, Texas. The College is a twoyear college formed under Texas law. The College and its Trustees are in actuality one in the same. UNDERLYING FACTS 8. Plaintiff has previously filed two other cases seeking 2
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 3 of 18 to enforce and protect his and others First Amendment rights (David Michael Smith, Ph.D. v. The College of the Mainland, et al.; in the United States District Court for the Southern District of Texas Galveston Division; Case Number 3:11-cv-286 and David Michael Smith and Rona Smith v. The College of the Mainland, et al.; in the United States District Court for the Southern District of Texas Galveston Division, Cause No. 3:09- CV-152). 9. In the initial lawsuit (3:09-cv-152), Plaintiffs brought a claim seeking a temporary restraining order and temporary injunction pending a final trial. The underlying facts asserted in the first lawsuit contended Defendants undertook actions which violated Plaintiff s free speech rights and allegations Defendants actions constituted a prior restraint and targeted speech, which was in disagreement with the Board s positions (citing Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 828 (1995); City of Madison v. Wis. Emp. Ref. Comm n, 429 U.S. 167, 174 (1976); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). 10. The subject violation related to the Plaintiff attempting to address the Board in the public comments section of the Board Meeting of June 22, 2009, and policies enacted by the Board smacked of viewpoint discrimination. 3
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 4 of 18 11. Plaintiff asserted in the original claim that each Board meeting constituted a lost opportunity for Plaintiff to speak to their elected officials during the public comment section. In addition, Plaintiff(s) asserted they did not have an adequate remedy under law to speak, address and/or criticize their public officials once any given Board meeting has passed. 12. On January 20, 2010, the Magistrate Judge issued a Report and Recommendation (Case 3:09-cv-00152, doc. 22). The report was issued after the taking of testimony and argument in the Temporary Injunction hearing on January 14, 2010. 13. The Report and Recommendation recommended granting the preliminary injunction to enjoin the Defendants from (1) excluding members of the public from speaking at COM Board Meetings during the public comment portion of the meeting on matters of public concern relevant to the limited forum of the board meeting on the basis of the content or viewpoint of their speech, and (2) limiting the number of persons who may speak at COM board meetings during the public comment of the meeting on the same matters of public concern relevant to the limited forum of the board meeting (id. at p. 6 of Report and Recommendation). 14. This Court accepted the Report and Recommendation on February 9, 2010 (Case 3:09-cv-00152, doc. 24). After this 4
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 5 of 18 Court s order, the parties resolved the matter by the payment of Plaintiff s attorneys fees. 15. On June 23, 2011, Plaintiff brought the second lawsuit (David Michael Smith, Plaintiff v. The College of the Mainland, et al., Defendants; in the United States District Court for the Southern District of Texas; No. 3:11-286). The second lawsuit alleged in part the following: On or about June 23, 2010, Plaintiff was issued a Level 1 Disciplinary Letter referencing College Policy DH (EXHIBIT), Employee Standards of Conduct, Exhibit E, the Faculty Code of Professional Ethics, President Michael Elam and Department Chair Pam Millsap told Dr. Smith that he had violated Item #1 in the Faculty Code, which states, The professional educator shall treat all persons with respect, dignity, and justice, discriminating against no one on any arbitrary basis such as veteran s status, people with disabilities, and any such category against which discrimination is prohibited by state or federal laws. Plaintiff ha[d] previously filed a First Amendment complaint against the College when its Board or Board Chair sought to prohibit him and his wife from speaking. 5
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 6 of 18 In addition, the Union had previously filed a lawsuit directed against Elam s grievance and nonrenewal policies. The case was filed November 2009 in the state forum (Cause No. 09-cv-2148; COM-Unity v. College of the Mainland; in the 56th District Court of Galveston County, Texas). The resolution of the case involved revision of the College policies. The College of Mainland had allowed dues deductions for the union for 29 years at the time. The Board did not change the policy. Defendant Elam simply modified the policy with respect to Defendant s union (along with one other state union and a teachers association), by interpreting the policy as giving him the authority to end deductions. Defendant Elam ended the deductions in April 2010. At the regular Board meeting on June 28, 2010, the Board voted to restore the union s deductions. Plaintiff contended the reprimand was placed on his employment file to serve as a prelude to termination. Plaintiff contended the Defendants actions worked to chill Plaintiff s right of speech, assembly and association (this related to Plaintiff appearing at a June 17, 2010 board meeting). 6
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 7 of 18 In addition, on July 29, 2011, Defendant Chair, Dr. Millsap, presented Plaintiff with an unsigned draft of his job evaluation for September December 2009 and for all of 2010. Upon a review of the evaluation, Plaintiff noticed that Millsap had tendered to him his first negative remarks on a job evaluation in the thirteen years of his employment at the College. The evaluation gave Plaintiff a 2 score, meaning needs some improvement in accepts changes in work environment, procedures and work assignments in a positive way. The stated reason given was the Level 1 discipline in June 2010, a matter related in this lawsuit. Plaintiff informed by Dr. Millsap that he had disrupted the meeting. Plaintiff reminded Dr. Millsap that he had sued over the disciplinary action; Dr. Millsap responded, If you win the lawsuit, we can change the score. Dr. Millsap gave Plaintiff a 3 score (meaning, meets performance standards ) in working relationships with students is positive, supportive, and cooperative. The evaluation listed some positive student comments and also some negative comments 7
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 8 of 18 criticizing Dr. Smith s viewpoint. Millsap commented that Plaintiff need not change his political ideology but I think there is a way to make the students more comfortable. Plaintiff was also given a 3 score in serves on committees when elected or requested. Millsap explained that his service with the Union was not considered a College committee or organization. Millsap s statement actually represents a new interpretation of policy at the College. Under Annual Improvement Objectives or Goals, Millsap listed 2 for Objectives and Action Plan. Millsap wrote that Dr. Smith should 1. Refrain from insubordinate speech and behavior; 2. Comply with College policy; 3. Exercise academic responsibility in conjunction with academic freedom. Emphasis added. 16. This Court entered a Memorandum and Order (No. 3:11-286, doc. 38) on December 3, 2012, in which the Court granted in part and denied in part the Defendant s Motion for Summary Judgment. This Court explained, Although the College admits that Smith was reprimanded because he spoke, it argues that Smith was reprimanded only because of the allegedly disruptive 8
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 9 of 18 manner in which he spoke and not because of the content of his speech. But the following facts are more than enough evidence to allow a reasonable jury to find in favor of Smith on this element: the timeline of what transpired at the meeting, the controversial nature on which Smith spoke, and the fact that the object of Smith s criticism, Elam, filed the complaint that resulted in the reprimand. (id. at p. 17). 17. After the Court s Memorandum and Opinion was issued, the parties settled the second lawsuit. Retaliation and Adverse Action for Exercising his Rights 18. On May 21, 2013, Plaintiff received a Disciplinary Level 4 from Dr. Amy Locklear, Vice President of Instruction. The disciplinary action was dated May 20, 2013. The document alleges Plaintiff had been: Insubordinate in violation of COM Policy DM (Local). In violation of the College District s Code of Ethic, as prohibited in DM (Local) and DH (Local). The violation asserted no facts to support the violations but simply attached email exchanges between Plaintiff and Defendant Lewis, the President of the institution. The first email exchange was dated March 23, 2013, wherein Plaintiff asserted the President s previous email to faculty and staff had several substantial 9
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 10 of 18 omissions and even misleading statements. Plaintiff requested the President to send a follow-up message which clearly acknowledges our rights regarding elections as well as the statutory prohibition. Plaintiff signed the email David Michael Smith, Ph.D., Professor of Government, President COM-Unity. After his email to Defendant Lewis, Plaintiff did not receive a response and then followed his email to the President with an email dated April 1, 2013, to all faculty and staff seeking to explain their rights under state and federal law (in particular the right of the employees under the First Amendment) with regards to elections. Defendant Lewis responded to the March 23, 2013 email on April 23, 2013. She disagreed with Plaintiff s email stating her initial email to COM employees was sufficiently clear and did not warrant further explanation. In her email, Defendant Lewis then writes, When I failed to do as you instructed, you sent an email to all COM employees criticizing my failure to follow your directive and providing all employees with your interpretation of the policy. This and other email communications you have sent 10
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 11 of 18 recently have been inappropriate, and in many cases, insubordinate. Defendant Lewis email also criticized Plaintiff for distributing leaflets during COM s Homecoming event. Plaintiff responded to Defendant Lewis email on the same day and reminded the President of the instruction of his right to criticize your actions and the Board s actions stating those rights were protected by the First Amendment and academic freedom. Plaintiff also reminded Lewis of his right as to leaflets and agreed to a compromise position even with his belief the President was misreading the policy. And finally, Plaintiff wrote, The College has already had to settle the two lawsuits I filed after being mistreated by the Board and/or the President. I urge you to avoid such misconduct towards me in the future. 19. The proposed termination was allegedly pursuant to College policy, DM (Local). The policy provides an employee may be dismissed for one of the following reasons and then list fifteen grounds, including unsatisfactory job performance, insubordination, use of profane and abusive language, physical or mental condition that results in the employee inability to 11
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 12 of 18 perform the assigned job function, moral turpitude, insufficient notification to employee s immediate supervisor regarding personal absences, giving false reason for paid leave, falsification of application of employment, excessive absences, theft, physical violation of disruption of the work environment, violation of the College s District s code of ethics, violation of the core value and standards of conduct, intimidation or coercion of one employee by another due to the member status in any organization or because of race, color, religion, gender, etc., or any other basis prohibited by law, failure to report any arrest or conviction subsequent to employment by the College or inappropriate or unauthorized use of College District equipment or resources. 20. In the letter of termination, Plaintiff is accused of insubordination in violation of DM (Local). The document provides, Our investigation has revealed a pattern of behavior in which you routinely challenge directives and requirements from your supervisors. The document then sets out five (5) incidents, including i) challenging Dr. Locklear s directive that all faculty complete training in Quizdom, a new software program (no date is provided with respect to this allegation; albeit the College administrator would later admit Smith actually did undertake such a requirement); ii) demanding that 12
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 13 of 18 Dr. Millsap, as Department Chair, hold a Department meeting to address your concerns with administrative matters, including COM hiring practices, on or about March 6, 2010 (this allegations never was part and parcel of any faculty evaluation, in addition, the actions of Plaintiff is consistent with his role as President of the employee union, COM-Unity and his role as a professor with the institution); iii) stating you would refuse to comply with Student Learning Outcomes established by the Texas Higher Education Coordinating Board in email correspondence to Dr. Locklear and Dr. Millsap on or about May 10, 2012 (this allegation also was never brought up in an employee evaluation); iv) on April 1, 2013 that he sent an email to Dr. Lewis requesting she clarify her email to all employees regarding political activities and Plaintiff then sending an email to all employees criticizing Dr. Lewis failure to comply with your request and providing his own interpretation of the policy (this action is consistent with Plaintiff s role as President of the employee union and his free speech rights; v) threatening the administration and co-workers with legal action if they fail to accommodate his request. 21. On the same date of the Disciplinary Action, Defendant Lewis accepted the recommendation of Locklear and recommended the termination of Plaintiff. 13
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 14 of 18 22. Plaintiff is a tenured professor and as such his status is governed by College Policy DDB (Local), which provides that a faculty member who has been granted tenure shall have the status and responsibilities of a ranked member of the College District staff and shall continue employment until he or she: 1. voluntarily Resigns from employment of the College District; 2. Retires; 3. Is dismissed for cause; 4. Is released due to program closure; or 5. Dies. 23. A hearing before a hearing examiner took place on June 20, 2013. The examiner issued a report on July 16, 2013. The examiner made findings of fact but did not make a recommendation and/or findings whether the Administration had met its burden in the proposed termination. 24. On August 1, 2013, the parties appeared before the Board of Trustees to argue their respective positions with regards to the proposed termination. The Board of Trustee voted 6-0-1 and approved the proposed termination. 25. The actions of the Defendants were in direct violation of Plaintiff s First Amendment rights as a union official and as an employee speaking on matters of public concern. The actions of Defendants constitute recent and direct violation of the two previous Court orders and/or settlements concerning the same parties. 14
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 15 of 18 26. Texas law provides that the evaluation of tenured faculty member shall be based on the professional responsibility of the faculty member, in teaching, research service and administration, and include peer review of the faculty member (Texas Education Code, section 51.942). Texas law also provides evaluation process should commonly encompass commonly recognized academic due process rights, including the manner and scope of the evaluation, the opportunity to provide documentation during the evaluation process, and before a faculty member may be subject to disciplinary action on the basis of an evaluation conducted pursuant to this section, notice of specific charges and an opportunity for hearing on those charges. Id. And finally, the Texas law provides a tenured faculty member can be subjected to revocation of tenure or other appropriate disciplinary action if incompetency, neglect of duty, or other good cause is determined to be present. Id. 27. Academic freedom includes the freedom to express ones views on (1) on academic matters in the classroom and in the conduct of research, (2) on matters having to do with their institution and its policies; (3) on issues of public interest generally, and to do so even if their views are in conflict with one or another s perceived wisdom. 15
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 16 of 18 28. Defendants conduct is in violation of basic and fundamental Constitutional rights and represents a prior restraint on Plaintiff s speech. 29. Defendants conduct discriminates on the basis of content of speech and the message it conveys. Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 828 (1995); City of Madison v. Wis. Emp. Ref. Comm n, 429 U.S. 167, 174 (1976); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). 30. Defendants have violated Plaintiff David Michael Smith s free speech rights as a public employee speaking on matters of public concern. 31. Defendants actions are inconsistent with the settlement agreements in this matter and the history of the case and constitute retaliation for Plaintiff s previous assertion of his rights. 32. The actions of the Defendants have a chilling effect on the rights of union membership, free speech and free association. PRAYER FOR RELIEF 33. Plaintiff prays for declaratory judgment and a finding that the Defendant s actions violated the Plaintiff s First Amendment rights. 34. Plaintiff prays for actual damages, including lost 16
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 17 of 18 wages, past, present and future. Plaintiff also anticipates the loss of benefits associated with the loss of his employment. It is Plaintiff s anticipation these losses over the course of his tenure are approximately $700,000.00 (estimated loss over the work-life expectancy of Plaintiff; $59,000.00 annual salary), with an additional loss of $175,000.00 - $250,000.00 in loss benefits. 35. Plaintiff prays for compensatory damages ($750,000.00) associated with the actions taken by Defendants herein. Plaintiff has suffered stress, depression, anger, worry, emotional loss associated with his termination. The emotional distress associated with the actions of Defendants has also affected Plaintiff physically. 36. A finding that Defendants conduct discriminates on the basis of content of speech and the message it conveys. Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 828 (1995); City of Madison v. Wis. Emp. Ref. Comm n, 429 U.S. 167, 174 (1976); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). 37. Declaratory judgment and the enforcement of Plaintiff s rights under the last settlement agreement of the parties and/or a finding that Defendants actions have a chilling effect on the rights of union membership, free speech 17
Case 3:13-cv-00307 Document 1 Filed in TXSD on 08/23/13 Page 18 of 18 and free association. 38. Plaintiff prays for reasonable and necessary attorneys fees. The anticipated fees will range from $250,000.00 - $350,000.00. 39. Plaintiff prays for all matters in equity and law to which Plaintiff may be deemed entitled. 40. Plaintiff prays for pre and post-judgment interest and costs of court. 41. Alternatively, Plaintiff requests to be placed on an expedited docket to resolve these most important issues. DATE: August 23, 2013. Respectfully submitted, A JURY TRIAL IS DEMANDED /s/ ANTHONY P. GRIFFIN ANTHONY P. GRIFFIN ATTORNEY-IN-CHARGE A GRIFFIN LAWYERS 1115 TWENTY FIRST STREET GALVESTON, TEXAS 77550 409.763.0386 1.800.750.5034 FACSIMILE NO. 409.763.4102 STATE BAR NO. 08455300 FEDERAL I.D. NO. 4736 ATTORNEYS FOR PLAINTIFF DAVID MICHAEL SMITH c:word.smith_david_[third_claim]_plaintiff_original_complaint_[third_complaint] 18