IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAGA | '/ ED EASTERN DIVISION WS OTN AIT W. MATTHEW DAVIS, Plaintiff, v CIVIL ACTION NO: AUBURN UNIVERSITY; AUBURN UNIVERSITY BOARD OF ‘TRUSTEES; JAY GOUGE, in his official and individual eapacity as President of Auburn University; JAY JACOBS, in his offici individual capacity as Athletics of Auburn University; DAVID BENEDICT, in his official and individual eapacity as Associate Athletics Director of Auburn University; RICH MeGLYNN, in his official and individual capacity as Associate Athletics Director; KEVIN ROBINSON, in his official and individual capacity as Executive Director of Internal Audi JURY DEMAND Defendants. COMPLA} I. JURISDICTION 1, This is an action for legal and equitable relief to redress Defendants! violations of Plaintiff's constitutional rights. ‘The suit is brought to secure the protection of and to redress the deprivation of rights secured under the First and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, the “State Employees Protection Act,” Code of Alabama, § 36-26A-1 and certain torts recognized by the State of Alabama. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343, 28 U.S.C. §§ 2201 and 2202. Jurisdiction over Plaintiff's claims based on Alabama law exist under the doctrine of supplemental jurisdiction, 28 U.S.C. §1367. IL, PARTIES 2. Plaintiff, W. Matthew Davis ("Davis"), is over the age of nineteen years and is a resident of Lee County, Alabama, At all times relevant to this action Davis worked for Auburn University in Lee County, Alabama. 3. Defendant, Auburn University (“Auburn”), is located in Lee County, Alabama, and ion of the State of Alabama subject to suit. 4. Defendant, Auburn University Board of Trustees (“Board”), is an entity located in ‘Lee County, Alabama, and is a division of the State of Alabama subject to suit. 5. Defendant, Jay Gouge (“Gouge”), is sued in his individual and official capacity as President of Auburn University. 6. Defendant, Jay Jacobs (“Jacobs”), is sued in his individual and official capacity as Athletic Director of Aubum University. 7, Defendant, David Benedict (“Benedict”), is sued in his individual and official capacity as Chief Operating Officer of the Auburn Athletic Department, 8. Defendant, Rich McGlynn (“McGlynn”), is sued in his individual and official capacity as Senior Associate Athletics Director of Auburn University. 9. Defendant, Kevin Robinson (“Robinson”), is sued in his individual and official capacity as Executive Director of Internal Auditing for Auburn University.IIL FACTUAL ALLEGATIONS 10. Plaintiff, Davis, was employed with Auburn University as Director of the Priority Progtam/Director of Sales for Auburn University’s Tigers Unlimited program until his termination on February 17, 2015. 11, Davisisagraduate of Auburn University and isa fan, supporter, and employee of the athletic program. 12. Inhis position, Davis reported to Tim Jackson, David Benedict and Jay Jacobs. 13, Prior to June/July of 2014, Davis discovered during an audit of Aubum’s football stadium, Jordan-Hare Stadium, that between 3,500 and 3,800 seats per year in the Tigers Unlimited donor area were not being utilized for the Tigers Unlimited program, but were instead being sold at face value, without the University receiving the benefit of the Tigers Unlimited premium. 14, InJune/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, 15, Benedict reported Davis’ concerns to Athletic Director Jacobs. After this report, Benedict came back to Davis and told him to “keep his head down and mouth shut” and forget about those tickets. 16. Davis also reported to Benedict a conversation that Travis Holtkamp, an IMGL salesperson in charge of selling Tigers Unlimited memberships, had with an Aubum supporter and potential Tigers Unlimited customer from Gadsden, Alabama, That potential customer told Holtkamp that he did not want to pay for a Tigers Unlimited and said “why would I? I'm getting these same tickets already” and that he was “getting these tickets from Jeremy Roberts (“Roberts”).”Roberts is an Athletics Department employee in charge of parking next to the athletic complex. The ‘man was receiving tickets in the same area as Tigers Unlimited members, but not paying the same premium as the Tigers Unlimited members. 17. Davis reported the Holtkamp report to Benedict in person and also forwarded Benedict the email from Holtkamp discussing the incident, Davis did not hear back from Benedict regarding this report. 18, Around this same time frame, Davis also informed Benedict that hundreds of seats in the stadium that are 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 by a Big 4 accounting firm, in addition to other items. 19, Davis reported these allegations to Benediet as a concemed Aubum alumni and fan of Auburn Athletics with the intent of helping the Athletic Department improving its financial situation, 20. Unbeknownst to Davis, sometime after he reported these ticket violations to Benedict, the Athletic Department and University began investigating him based on abeliefthat some Athletic Department employee was leaking student athlete information used in gambling. Although there was no evidence suggesting that Davis was in any way involved in this alleged “gambling” conspiracy, he somehow was the only University employee investigated regarding these allegations. 21. According to the University, during this alleged investigation into “gambling”, it was. discovered that Davis had been in communication with an Athletic Department consultant, MarkTilson. Davis had been instructed to work with Tilson in his role as a consultant and was never {informed that Tilson’s contract with Auburn had ended. Tilson was still visiting Auburn and was still providing consulting services to members of the Athletic Department. 22, — Inlate August/early September 2015, the Athletic Department was taking bids on a sales and marketing support contract for Tigers Unlimited that was held by IMGL at the time, 23, According to the University, these communications with Tilson were inappropriate because Tilson was bidding on this contract to provide sales and marketing support to Tigers Unlimited. 24. However, at the same time that Tilson and Davis were communicating, Tilson was still providing consulting recommendations to Benedict, including recommendations to Benedict regarding the very same sales and marketing support contract he was bidding on. Davis was aware that Benedict was still consulting with Tilson regarding ticketing issues. Davis was also aware that Benedict had authorized for Tilson to have access to IMGL’s financial statements in his consulting role. VLE On September 19, 2014, Davis was called into a meeting with Kevin Robinson, Intemal Director of Intemal Accounting. During this meeting Davis was asked several questions about Tilson’s bid for the IMGL sales contract, During this meeting, Davis made it clear to Robinson that the only information that he had given Tilson was provided pursuant to his belief that Tilson was still acting as a consultant to the Athletic Department. Davis based this belief on discussions with Benedict and emails that he personally saw during the time period between Tilson and Benedict.26. Thereafter, on September 24, 2014, Davis was suspended from his position at Auburn pending an investigation. 27. 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 inquiring into Davis’ employment status and raising several concerns, including the “alleged” investigation that was being conducted by Kevin Robinson and the previous complaints that Davis had raised with Benedict prior to the Athletic Department beginning an investigation into the vague allegations of gambling improprieties. 28. That December 11, 2014 letter prompted a response from Auburn and a return letter ‘was sent from Rich McGlynn, Senior Associate Athletic Director, to Davis, requesting a meeting be set on December 18, 2014. This letter provided Davis with the first notice that there had been an investigation into his potentially releasing student athlete information for gambling purposes. The letter further stated that there was no evidence to support that accusation, but in performing the “investigation” the University had uncovered his communications with Tilson and was investigating those. 29. Davis and his counsel met with McGlynn and University counsel and a human resources representative on December 18, 2014. At this meeting, Davis was asked essentially the same questions as before and was not given any access to any emails or other documents had to support their allegations. 30. On January 5, 2015, Davis forwarded the University an email between Benedict and Tilson regarding Tilson’s consulting efforts which was dated July 11, 2014.31. On February 17, 2015, Davis and McGlynn had another meeting with counsel and Human Resources present. Atthis meeting, Davis was presented with a termination letter which told hhim that he was being terminated because his actions in communicating with Tilson were “questionable at best.” IV. CAUSES OF ACTION ‘ount One - First Amendment Free Speech Violation 32, Plaintiff adopts and re-alleges Paragraphs 1 through 31 above as if fully set forth herein. 33, Plaintiff spoke out about matters of public concern when he raised issues related to ticketing improprieties to Auburn University Chief Operating Officer David Benedict and that his First Amendment interests outweigh any interest Defendants may have had in suppressing such speech. Plaintiff further exercised his First Amendment rights to speak about matters of public concern when he sent to December 11, 2014, letter to various members of the Auburn University ‘Administration and Board and certain Auburn University boosters. 34. Defendants retaliated against him for the exercise of free speech guaranteed to him by the First Amendment to the United States Constitution and 42 U.S.C. §1983 by investigating him, suspending him and by terminating his employment. 35. Defendants acted with malice and/or reckless indifference toward Plaintiff. unt Two - Equal Protection 36. Plaintiff adopts and re-alleges Paragraphs 1 through 35 above as if fully set forth herein.37. Defendants’ conduct, as outlined herein, has deprived Plaintiff of his statutory and constitutional rights granted by the Fourteenth Amendment to the United States Constitution, 42 USS.C. § 1983 and § 36-26-100 et seq., Atall times relevant to Plaintiff’ allegations, Defendants were acting as government officials. 38. Specifically, Defendants’ conduct deprived Plaintiff of his right to Equal Protection under the law as provided by the Fourteenth Amendment of the United States Constitution, 39. Plaintiff brings this case as a “class of one” where, as a result of the investigation, suspension and termination he was subjected to, Plaintiff was intentionally treated differently than other similarly situated individuals, even though there was no rational basis for the difference in treatment. See, Village of Willowbrook, et al., v. Olech, 528 U.S. 562, 120 S.Ct. 1073 (2000). 40. Defendants’ conduct, as described above, in investigating, suspending and terminating, Plaintif?'s employment was irrational and wholly arbitrary and not related to any legitimate governmental purpose. Defendants’ conduct, as described above, was motivated by ill will toward Plaintiff due to the concerns Plaintiff raised regarding the issues he discovered related to Auburn’s football ticket scheme. 41. Defendants engaged in such conduct with malice and/or reckless indifference to Plaintiff's protected rights. Count Three - Substantive and Procedural Due Process 42, Plaintiff adopts and re-alleges Paragraphs 1 through 41 above as if fully set forth herein,43. Defendants’ conduct, as outlined herein, has deprived Plaintiff of his statutory and constitutional rights granted by the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983 and § 36-26-100 et seq. 44. Plaintiff had a property interest in his employment with the University and defendants’ actions in terminating Plaintiff deprived him of that property interest, 45. Additionally, Defendants deprived Plaintiff of his procedural due process rights by investigating him and suspending him without a hearing. 46. Defendants engaged in such conduct with malice and/or reckless indifference to Plaintiff's protected rights. Count Four - Alabama State Whistleblower Act - Ala, Code, 24 47. Plaintiff adopts and re-alleges Paragraphs 1 through 46 above as if fully set forth herein, 48, Plaintiff contends that by making the complaints regarding ticketing improprieties to Benedict and to all of those who received the December 11, 2014 letter sent on his behalf, he engaged in conduct covered by the State Whistleblower Act and that based on said conduct his tights under the Act were violated by Defendants. 49. Specifically, Plaintiff contends that his rights were violated and he was retaliated against after he made the complaints to Benedict in that he was made the subject of a frivolous investigation, he was suspended and investigated, and he was eventually terminated. 48. PlaintifFalso contends that he was retaliatory terminated in violation of this act after the December 11, 2014 letter was sent on his behalf to numerous Auburn officials raising the complaints he had made to Benedict and inquiring into his status after his suspension.50. Defendants acted with malice and/or reckless indifference toward Plaintiff. V. PRAYER FOR RELIEF WHEREFORE, Plaintiffrespectfully prays that this Court assume jurisdiction of this action and after trial: 1. Issue a declaratory judgment that the employment policies, practices, procedures, conditions and customs of Defendants are violative of the rights of Plaintiff as secured under the First and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, and the “State Whistleblower Act,” Code of Alabama, § 36-25-24. 2. Grant Plaintiff a permanent injunction enjoining Defendants, its agents, successors, employees, attorneys and those acting in concert with Defendants and at Defendants? request from continuing to violate the First and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, the “State Whistleblower Act,” and Code of Alabama, § 36-25-24, 3. Enteranorderrequiring Defendants to make Plaintiff whole by awarding him reinstatement to his former position with full duties and responsibilities, back-pay (plus interest), loss benefits, liquidated damages, punitive damages, compensatory damages, and/or nominal damages, declaratory and injunctive relief. 4, Plaintiff further prays for such other relief and benefits as the cause of justice may require, including but not limited to, an award of costs, attomey's fees and expenses. 10Kevin W. Jent Counsel for Plaintiff OF COUNSEL: WIGGINS CHILDS PANTAZIS FISHER GOLDFARB LLC ‘The Kress Building 301 Nineteenth Street North Birmingham, Alabama 35203 Telephone: (205) 314-0500 E-mail: dgp@wigginschilds.com Kjent@wigginschilds.com SERVE DEFENDANTS A‘ ‘Auburn University Jay Jacobs 101 Samford Hall David Benedict Auburn, Alabama 36849 Rich McGlynn ‘Auburn University Athletic Department 392 South Donahue Drive Auburn, Alabama Jay Gouge, President Kevin Robinson ‘Auburn University Auburn University 107 Samford Hall 304 Samford Hall Auburn, Alabama 36849 Auburn, Alabama 36849 Auburn University Board of Trustees clo Grant Davis, Secretary to Board of Trustees 105 Samford Hall Auburna, Alabama 36849 W