Appeal from the United States District Court for the Middle District of Florida. (No. 92-709-Civ-Orl-18). G. Kendall Sharp, Judge. This Opinion Substituted on Grant of Rehearing for Withdrawn Opinion of August 17, 1995, Previously Reported at: 1995 U.S. App. LEXIS 22597.
Before Black and Barkett, Circuit Judges, and Roney, Senior Circuit Judge.
ON PETITION FOR REHEARING
Professors Marion Brady, Thomas Ward and Alan Thornquest appeal judgments entered in favor of Brevard Community College administrators, College President Maxwell King and the College Board of Trustees (collectively "defendants") in this 42 U.S.C. § 1983 suit.*fn1 The professors, who were involved in union activity and publicly critical of the College and the Board of Trustees, claimed that they were transferred, fired and/or denied benefits in violation of their federal and state rights to free expression, petition, assembly and substantive due process. Brady further alleged that he was fired and denied benefits in violation of federal and state procedural due process. Finally, Brady and Thornquest claimed that the College's "dissent" policy violated their rights to free expression, petition and assembly. The district court granted summary judgment for defendants on all claims.
We affirm the district court's judgment as to all claims except Brady's claims that the College transferred him and the Board discharged him in retaliation for his free speech, and Brady and Thornquest's first amendment claims against the "dissent" policy. We reverse the judgment as to those claims and remand the case for further proceedings.
Marion Brady, a sociology professor at the College since 1976, became a vocal critic of the College administration and Board in 1988. In letters to the editor, public officials and the Board, Brady criticized the administration and Board for, among other things, expending funds to build the King Performing Arts Center, emphasizing public relations at the expense of education and failing to act on his complaints of improprieties.
In March 1992, Brady was informed by the College that he was being transferred to a different campus. Thereafter, in May 1992, President King recommended to the Board, pursuant to Rule 6A-14.0411(6), Florida Administrative Code, that Brady be discharged on the grounds that he was guilty of misconduct, gross insubordination and willful neglect of duty. Brady responded that President King's recommendation was filed to retaliate against him for exercising his rights to free speech, petition, assemble and work and to engage in union activity.
Believing the Board to be biased against him, Brady requested that it permit President King's petition to be heard by a Hearing Officer of the Florida Division of Administrative Hearings. The Board denied this request. Brady then filed a lawsuit in state court, asserting under both state law and § 1983 that his transfer by the College, and subsequent threatened termination as recommended by President King's petition, violated his statutory and constitutional rights. In addition to damages, Brady unsuccessfully sought an injunction prohibiting the Board from hearing the discharge petition. By letter, Brady also asked the Board to disqualify itself from hearing the petition because all of its members were biased against him. After only two of the five Trustees disqualified themselves, Brady filed a formal Suggestion for Disqualification of the remaining Trustees, pursuant to Section 120.071, Florida Statutes, which the Trustees denied.
Over Brady's objections, the Board ultimately held a hearing on President King's recommendation of discharge. The three Trustees who had not recused themselves heard from the administrators regarding the allegations of misconduct and gross insubordination, rejected Brady's charges that President King's recommendation and the Board's prospective action were motivated by unconstitutional retaliation, and discharged Brady. The Board also denied Brady accumulated sick leave.
Meanwhile, defendants removed Brady's pending state suit to federal district court. In his Amended Complaint, Brady changed his initial claim alleging that his threatened discharge based upon President King's petition was unconstitutional to one alleging that his actual discharge by the Board was in retaliation for exercising his first amendment rights. See Count II. In addition, Brady repeated in the Amended Complaint his transfer claim contained in the Initial Complaint. Id. Brady and Thornquest further alleged that the College's policy on "dissent" was unconstitutional, both facially and as applied.*fn2 See Counts VIII and IX. The lawsuit requested damages, declaratory relief and an injunction requiring immediate reinstatement and prohibiting enforcement of the "dissent" policy.
Following discovery, the district court granted summary judgment against Brady, determining that he was barred from relitigating factual issues the Board had considered. The court did not address the challenges to Brady's transfer or the College's "dissent" ...