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W. MATTHEW DAVIS
75 OCT I
A 10
Plaintiff
DEBRA P . HACEJ T. CL
U.S . DISTRGT COU RT
MLE D3T OS
A I
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAM4
E C E I V E D
EASTERN DIVISION
V
IVIL ACTION NO.:
AUBURN UNIVERSITY; AUBURN
UNIVERSITY BOARD OF
TRUSTEES; JAY GOUGE in his
official and individual capacity as
President of Auburn University;
JAY JACOBS in his official and
individual capacity as Director of
Athletics of Auburn University;
DAVID BENEDICT in his official
and individual capacity as Associate
Athletics Director of Auburn
University; RICH McG LYNN in his
official and individual capacity as
Associate Athletics Director;
KEVIN ROBINSON in his official
and individual capacity as Executive
Director of Internal Auditing
Defendants.
JURY DEMAND
COMPLAINT
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 S tate Employees Protection Act, Code of Alabama,
36-26A
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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 A labama law ex ist under the doctrine of supplementaj. jurisdiction, 28 U.S .C. 1367.
II 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
U niversity in Lee C ounty, Alabama.
3.
D efendant, A uburn U niversity ( A uburn ), is located in L ee Coun ty, A labama, and
is a division of the S tate of Alabam a subject to suit.
4. D efendant, Aubu rn U niversity Board of Trustees ( B oard ), is an entity located in
Lee C ounty, 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. D efendant, Jay Jacobs ( Jacobs ), is sued in his individual and official capacity as
A thletic Director of A uburn U niversity.
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 A ssociate A thletics Director of Auburn U niversity.
9.
Defendant, Kevin Robinson ( Robinson ), is sued in his individual and official
capacity
as
E xecutive Director of Internal A uditing for Au burn U niversity.
2
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III FACTUAL ALLEGATIONS
10.
Plaintiff, Davis, was employed with Auburn University as Director of the Priority
Program /D irector of S ales for Auburn U niversity's Tigers U nlimited program until his termination
on February 17, 2015.
11.
D avis is a graduate of Auburn U niversity and is a fan, supporter, and employee of the
athletic program.
12.
In
his posit ion, D avis reported to Tim Jackson, David B enedict and Jay Jacobs.
13.
Prior to June/July of 2014, Davis discovered during an audit of Auburn's football
stadium, Jordan-H are S tadium, that between 3,500 and 3,800 seats per year in the Tigers U nlimited
donor area w ere not being utilized for the Tigers U nlimited program, but were instead being sold at
face value, without the U niversity receiving the benefit of the Tigers U nlimited prem ium.
14.
In June/J uly 2014, Davis reported these seating discrepancies to
David
B enedict and
told Benedict that the U niversity w as missing out on significant revenue b y not selling these tickets
through Tigers U nlimited.
15.
Benedict reported Davis' concerns to Athletic Director Jacobs. After this report,
B enedict came back to D avis 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 U nlimited mem berships, had w ith an Aubu rn 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 ( R oberts ).
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Roberts is
an A thletics D epartment emp loyee in charge of parking next to the athletic complex. Th e
man w as receiving tickets in the same area as T igers Unlimited mem bers, but not paying the same
premium as the T igers U nlimited members.
17. Davis
reported the Holtkamp report to Benedict in person and also forwarded
B enedict the email from H oltkamp discussing the incident. Davis did not hear back from B enedict
regarding this report.
18.
Around this same time frame, Davis also informed Benedict that hundreds of seats
in the stadium that are incorrectly marked a nd 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 B ig 4 accoun ting firm, in addition to other items.
19.
D avis reported these allegations to Bened ict as a concerned A uburn 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 A thletic D epartment and U niversity began investigating him based on a be lief that some A thletic
D epartment emp loyee was leaking student athlete information used in gambling. Although there w as
no evidence suggesting that D avis was in any way involved in this alleged gambling conspiracy,
he som ehow was the only U niversity employee investigated regarding these allegations.
21.
A ccording to the U niversity, during this alleged investigation into gambling , it was
discovered that Davis had been in communication with an Athletic Department consultant, Mark
4
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Tjlson. 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
stil l providing consulting services to mem bers of the A thletic D epartment.
22.
In late Au gust/early S eptember 2015, the A thletic
Department
was taking bids on a
sales and marketing support contract for Tigers U nlimited that was held by IMG L a t the time.
23.
A ccording to the U niversity, these comm unications w ith Tilson w ere inappropriate
because Tilson was bidding on this contract to provide sales and marketing support to
Tigers
Unlimited.
24. H owever, at the same t ime that Ti lson and D avis were comm unicating, Ti lson was
still providing consulting recommendations to Benedict, including recommendations to Benedict
regarding the very same sales and m arketing support contract he was bidding on. D avis was aw are
that B enedict was stil l consulting with T ilson regarding ticketing issues. Davis w as also aw are that
B enedict had authorized for Tilson to have access to I MG L 's financial statements in his consulting
role.
25.
On September 19, 2014, Davis was called into a meeting with Kevin Robinson,
Internal Director of Internal Accounting. During this meeting Davis was asked several questions
about Tilson's bid for the IMOL sales contract. During this meeting, Davis made it clear to
R obinson 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 Bened ict.
Ii
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26 .
hereafter, on S eptember 24,2014,
Davis was
suspended from his position at Auburn
pending an investigation.
27. D avis heard nothing from A uburn regarding the investigation and retained counsel
to intervene. O n D ecembe r 11, 2014, Davis' counsel sent a letter to num erous A uburn officials and
board members inquiring into Davis' employment status and raising several concerns, including the
alleged investigation that was being conduc ted by Kevin Robinson and the previous complaints
that D avis had raised with Ben edict prior to the A thletic D epartment beginning an investigation into
the vague allegations of gambling improprieties.
28. That D ecember 11, 2014 letter prompted a response from A uburn 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 gam bling purposes. T he
letter further stated that there was no evidence to support that accusation, but in performing the
investigation the Un iversity had uncovered his comm unications with Tilson and was investigating
those.
29.
Davis and his counsel met with McGlynn and University counsel and a human
resources representative on Dece mbe r 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. O n January 5, 2015, Davis forwarded the U niversity an email between B enedict and
Tilson regarding Tilson's consulting efforts which w as dated July 11, 2014.
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31 .
n February 17, 2015, Davis and McG lynn had another meeting with counsel and
H uman R esources present. At this meeting, D avis was presented with a termination letter which told
him that he was being terminated because his actions in communicating with Tilson were
questionable at best.
IV CAUSES OF ACTION
Count One im First Amendm ent Free Speech Violation
32. Plaintiff adopts and re-alleges Paragraphs 1 through 31 above as if fully set forth
herein.
33. Plaintiff spoke out a bout m atters of public concern wh en he raised issues related to
ticketing imp roprieties to Aubu rn U niversity C hief O perating O fficer D avid Ben edict 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 D ecember 11, 2014, letter to various mem bers of the A uburn U niversi ty
A dministration and B oard and certain A uburn U niversi ty boosters.
34.
D efendants retaliated against him for the exercise of free speech guaranteed to him
by the First A mendment to the U nited S tates Constitution and 42 U .S.C . 1983 by investigating him,
suspending him and by terminating his employment.
35.
D efendants acted w ith malice and/or reckless indifference toward Plaintiff .
Count Two T
Equal Protection
36.
Plaintiff adopts and re-alleges Paragraphs 1 through 35 above as if fully set forth
herein.
7
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37 .
efendants' conduct, as ou tlined h erein, has deprived P laintiff 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.. A t all t imes relevant to Plaintiff's allegations, De fendants
were acting as government officials.
38.
S pecifically, Defendants' conduct deprived P laintiff of his right to E qual P rotection
under the law as provided by the Fourteenth Ame ndment of the U nited 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, P laintiff w as intentionally treated differently than
other similarly situated individuals, even though there was no rational basis for the difference in
treatment.
See, Village of W illowbrook; eta ., v. Olech, 528 U .S. 562, 120 S.C t . 1073 (2000).
40. D efendants' conduct, as described above, in investigating, suspending and terminating
Plaintiffs employment was irrational and wholly arbitrary and not related to any legitimate
governm ental purpose. D efendants' conduct, as described above, wa s motivated by ill will toward
Plaintiff due to the concerns P laintiff raised regarding the issues he discovered related to A uburn's
football ticket scheme.
41.
Defendants engaged in such conduct with malice and/or reckless indifference to
Plaintiffs protected rights.
Count T hree - Substantive and P rocedural Due Process
42.
Plaintiff adopts and re-alleges Paragraphs 1 through 41 above as if fully set forth
herein.
8
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43 .
efendants' conduc t, as outlined h erein, has deprived P laintiff 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 Ct 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.
A dditionally, D efendants deprived P laintiff of his procedural due proce ss rights by
investigating him and suspend ing 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 W histleblower Act - Ala. C ode.-36-25-24
47. Plaintiff adopts and re-alleges Paragraphs 1 through 46 above as if fully set forth
herein.
48.
Plaintiff contends that by m aking the com plaints regarding ticketing improprieties
to Benedict and to all of those who received the December 11, 2014 letter sent on his behalf, be
engaged in conduct covered by the State Whistleblower Act and that based on said conduct his rights
under the Act w ere violated by Defendants.
49. Specifically, Plaintiff contends that his tights 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 w as suspended and investigated, and h e w as eventually terminated.
48. Plaintiff also contends that he was retaliatorily terminated in violation of this act after
the December 11, 2014 letter was sent on his behalf to numerous Auburn officials raising the
com plaints he had made to B enedict and inquiring into his status after his suspension.
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50.
efendants acted w ith malice and/or reckless indifference tow ard P laintiff.
V PRAYER FOR RELIEF
W H ER EFO RE , Plaintiff respectfully prays that this Court assume jurisdiction of this action
and a fter trial:
Issue a declaratory judgment that the employment policies, practices,
procedures, conditions and customs of D efendants are violative of the rights of Plaintiff as secured
under the First and Fourteenth Am endments of the U nited States Constitution, 42 U .S.C . 1983, and
the S tate W histleblower A ct , C ode of A labama, 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
C onstitution, 42 U .S.C . 1983, the S tate W histleblower Act, and C ode of A labama, 36-25-24.
3. Enter an
order
requiring D efendants to make P laintiff w hole by aw arding him
reinstatement to his form er position with full duties and responsibilities, back-pay (plus interest),
loss benefits, liquidated damages, punitive damages, compensatory damages, and/or nominal
damages, d eclaratory and injunctive relief.
4.
Plaintiff further prays for such other relief and be nefits as the cause ofjustice
may require, including but not limited to, an aw ard of costs, attorney's fees and expenses.
10
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PLAINTIFF DEMANDS TRIAL BY STRUCK JURY
G . Pantazis
Kevin W. Jent
Counsel for Plaintiff
O F C O U N S E L:
W I G G I NS C H I L D S
P A N T A Z I S F IS H E R
G O L D F A R B LL C
The Kress Building
301 Nineteenth S treet North
Birmingham, Alabama 35203
Telephone:
205)
314 0500
E-mail:
gp(2Iwigginschilds.com
kjent(wigginschi1ds.com
SERVE DEFENDANTS AT:
A uburn U niversi ty
101 Samford H al l
Auburn, Alabama 36849
Jay G ouge, President
A uburn U niversi ty
107 Sam ford H al l
A uburn, A labama 36849
A uburn U niversi ty B oard of Trustees
do G rant Davis, Secretary to Board of T rustees
105 Samford H all
Auburna, Alabama 36849
Jay Jacobs
D avid B enedict
Rich McG lynn
A uburn U niversity A thlet ic D epartment
392 South D onahue Dr ive
A uburn, A labama
Kevin Robinson
A uburn U niversi ty
304 Samford Hall
A uburn , Alabama 36849
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Court Name: U S DISTRICT COURT - AL/H
Division: 2
Recei p
t Number: 4602036657
Cashier ID: awilliam
Transaction Date: 10/14/2015
Pa y
er Name: WIGGINS CHILDS QUINN PANTAZIS
CIVIL FILING FEE
For: WIGGINS CHILDS QUINN PANTAZIS
Amount:
400.00
CHECK
Check/Honey
Order Hum: 032320
Amt Tendered: 400.00
Total Due:
400.00
Total Tendered: 400.00
Chang
e Amt:0.00
3:15-cv-752
Davis v. Auburn University
, et al
Case 3:15-cv-00752-CSC Document 1-1 Filed 10/15/15 Page 1 of 1
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