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Moore v. Watson

September 7, 2010

GERIAN STEVEN MOORE AND GEORGE PROVIDENCE II, PLAINTIFF,
v.
DR. WAYNE WATSON, PRESIDENT, AND ERMA BROOKS WILLIAMS, ASSOCIATE TO PRESIDENT FOR COMMUNICATIONS AND EXTERNAL RELATIONS, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Dr. Gerian Steven Moore is the former faculty advisor to Tempo, the student-run campus newspaper at Chicago State University ("the University"). Plaintiff George Providence II is the former student editor of that publication. Following a series of controversial stories that appeared in Tempo, University officials removed Moore from his position as faculty advisor and ultimately terminated him from his post in the University's public relations department. Defendants, who are officers of the University named in their official capacities,*fn1 contend that Moore's termination was performance-related and had nothing to do with Tempo's controversial content. Plaintiffs, however, contend that the University's proffered reason for terminating Moore is pretextual, and that the firing was an act of retaliation for the student articles.

Plaintiffs further assert that the University's actions disrupted the newspaper's regular operation and effectively restrained its publication. Following Moore's ouster, Providence clashed frequently with University officials and with Moore's replacement as faculty advisor; a main point of contention was Providence's refusal to submit Tempo's editorial content for review prior to publication. Publication of Tempo ultimately ceased entirely because, Providence claims, his staff was barred from accessing the newspaper's offices. Providence himself subsequently withdrew from the University, citing harassment by University officials as his reason for departing.

In this lawsuit, Plaintiffs contend that the University's actions violated the First Amendment and the Illinois College Campus Press Act, 110 ILCS 13/1 et seq. The parties have filed cross-motions for summary judgment. For the reasons explained below, Plaintiffs' motion is denied and Defendants' motion is denied in part. The case raises a material dispute of fact that requires resolution by the finder of fact at trial.

BACKGROUND

During the relevant period, Tempo was the official student newspaper of Chicago State University, a public state institution located on Chicago's south side. (Def.'s 56.1 Resp. at ¶ 6.) For most of its history, the newspaper had a somewhat uncertain status at the University, publishing only sporadically because of lack of support and limited student interest. In fact, no issues of Tempo were published in 2006 or 2007 at all. (Id. at ¶ 10.) In 2007, however, the University made a concerted effort to re-establish Tempo. (Id. at ¶ 16.) In August of that year, then-University President Dr. Elnora Daniel hired Plaintiff Moore to serve as a lecturer and as Daniel's "Special Assistant." (Moore 11/21/2009 Aff. ¶ 9-10.) Moore's prior experience had been as a professor and scholar in the areas of American Culture, African-American Studies, and English.*fn2 (Moore's CV, Ex. H to Pl.'s Mot.) As part of Moore's duties at Chicago State, he was assigned to oversee the reestablishment of Tempo and to serve as the newspaper's faculty advisor once it began publication.

(Moore 11/21/2009 Aff. ¶ 15.) In January 2008, Moore was given a one-year contract to serve as the University's Director of Communications with the expectation, Moore maintains, that his contract would be renewed thereafter on an annual basis. (Moore 01/07/2010 Aff. at ¶ 17-18.)

In March 2008, the newspaper resumed regular operations, with a staff of student editors and writers, and funded by an "activities fee" paid by the student body. (Moore 11/21/2009 Aff. at ¶ ¶ 6, 8.) Moore described his role at Tempo as primarily "advis[ing] [the students] regarding journalistic ethics and procedure... not []exercis[ing] any editorial control, as that duty was the sole responsibility of the student editor and staff." (Id. at ¶ 17.) To that end, Moore testified, he refrained from reviewing or editing the newspaper's content prior to publication. (Id. at ¶ 19; Moore Dep. at 88.) Plaintiff Providence, who, at 48 years of age, was an unconventional college sophomore, became a columnist for Tempo in March 2008. (Pl.'s 56.1 Resp. at ¶ 7; Def.'s 56.1 Resp. at ¶ 4.) Providence had previously served as editor of the Occurrence, the student newspaper at Oakton Community College, and within a few weeks he was elevated to editor-in-chief at Tempo. (Id.)

From time to time, Providence and his staff published articles that were critical of the University and its administration. (Moore 11/21/2009 Aff. at ¶ 22.) In one such story, Tempo reported that the school's baseball coach had intentionally harmed a player. (Moore Dep. at 138.) In another, Tempo quoted the University's Financial Director as making derogatory remarks about the school. (Id.) The paper followed those stories with an investigative series looking into the school's failure to provide promised financial aid to some student athletes. (Id. at 140.)

According to Moore and Providence, Tempo's muckraking approach soon began generating substantial controversy on campus. Issues of the paper began being stolen from their racks, Moore testified; whole stacks of newspapers would seemingly disappear before students had the opportunity to read them. (Moore Dep. at 139-144.) According to Moore, his association with Tempo also began to alter the way he was treated by other faculty members and administrators. (Id. at 121-24.) On one occasion, a colleague told Moore that she didn't want to be seen talking with him. "You're walking around with a target on your back," the colleague purportedly said. "The Tempo is exposing all the dirt here."*fn3 (Id. at 122.) Moore said that his immediate supervisor at the time, Dr. Beverly John, was particularly concerned about the negative coverage the University was receiving in Tempo's pages. (Id. at 154.) On one occasion, John told Moore: "What y'all are doing is not right," apparently referring to Tempo's content. (Id. at 155.) John was also herself quoted in one article, which portrayed the school's Financial Director in a particularly negative light, as saying: "You're writing these articles to make the University look bad, and I will not cooperate with you." (Id. at 120.) Following that same article about the Financial Director, then-President Daniel told Moore that she considered it "a shame that that article got out like that." (Id. at 121.)

In June 2008, Daniel was forced to resign as University President amid a well-publicized scandal involving the misappropriation of school funds.*fn4 She was replaced by Interim-President Dr. Frank Pogue. (Def. 56.1 Resp at 8.) At some point following Daniel's departure, Moore was reassigned and placed under the direct supervision of Patricia Arnold, the school's "Executive Director of University Relations." (Moore Dep. at 47-48.) As the court understands Arnold's role, she held a non-academic position that essentially involved managing and overseeing the University's public relations efforts.

In September 2008, Moore established a "staff advisory board" for Tempo, which he asked Arnold and another University employee to join. (Id. at 77.) Moore conceived of the board, he said, as a way of "protecting" himself from the administration's ire over Tempo's content. (Id.) At the time, Moore had learned that Tempo was planning to run a series of articles investigating an apparent discrepancy in the funding of a costly University event that had taken place the previous spring. (Id. at 77-82.) Moore anticipated that the article would be particularly controversial in light of the recent well-known allegations concerning the misuse of funds at the school. "It was about money," Moore testified, "and money is always an issue at Chicago State." (Moore Dep at 80.) Moore said he was also concerned about rumors "floating around campus" that he had instigated some of Tempo's negative coverage of the University, and he hoped the existence of the board would insulate him from similar criticism over the planned investigative series. (Id. at 87-88.)

While Moore had anticipated that the board would oversee the newspaper's business operations only, he testified, Arnold wanted to use the board to engage in pre-publication review of the newspaper's editorial content. (Id. at 85-86; 99-100.) According to Moore, Arnold told him that she thought the newspaper was "horrible." (Id. at 101.) She "constantly criticized the quality of the writing" in Tempo, Moore testified, and she believed that the board should "proofread" the paper before it went to press. (Id.) In various conversations, Moore testified, Arnold expressed a desire to review the newspaper's content before publication as well. (Moore Dep. at 135-36.) When Moore told Arnold that he did not believe that the board had a "right to dictate the terms of how or what [the students said,] even if it's grammatically incorrect," Arnold purportedly responded: "Well, you can't just let the students do anything." (Id. at 136.) In mid-September, Arnold contacted Providence and offered to "proofread" the newspaper, but Providence declined the offer. In an e-mail dated September 25, 2008, Providence told Arnold that he would consider her comments on Tempo's past issues, but would not submit to any review of future issues before publication. (Providence E-mail, Ex. J to Pl.'s Mot.) "I just think that it is a bad precedent to allow administrators to see a student paper before it goes to press," Providence wrote to Arnold. (Id.) Arnold claims that she never insisted on editing Tempo and that she never wished to control the content of the newspaper. (Arnold Aff. at ¶ 4.) She also maintains that her primary concern was not the editorial content per se, but the grammatical and journalistic quality of the paper.

On September 29, 2008, Dr. Beverly John sent Arnold a memorandum, ostensibly to provide Arnold with some "insight" into the staff members who had been transferred to her supervision. (Transition Memo, Ex. K to Pl.'s Mot.) The memo is critical of Moore's credibility and performance, particularly regarding his work with Tempo. Specifically, John accused Moore of "buil[ding] a tenor of dishonesty and deceit" at the University. (Id.) "I firmly believe that Moore is behind the negative tenor of the student newspaper," John wrote. (Id.)

At about this same time, in late September 2008, Arnold asked Moore to prepare two press releases on behalf of the University. (Arnold Dep. 120-21.) Drafting these releases appears to have been a portion of Moore's new duties as a member of Arnold's public relations staff, and did not directly relate to his responsibilities as faculty advisorto Tempo. At the time of the assignment, Arnold testified, her office was very busy and she needed someone on her staff who was capable of writing press releases. (Id. at 121.) After reviewing the releases, Arnold said, she found the quality of Moore's work to be unsatisfactory. (Id. at 29-30; 121.) Though Arnold did not specify why she believed Moore's work was deficient, she did testify that, in her view, the releases were not satisfactorily written. (Id. at 121.) Moore claims that Arnold never explained to him that she needed final drafts for the press releases, so he prepared only rough drafts. (Moore Dep. at 162.) He also said that Arnold never reprimanded him nor expressed any dissatisfaction with the quality of his work. (Moore Aff. 11/21/2009 at ¶ 20.)

On October 6, 2008, Moore stated, Arnold called him into her office to discuss some of the articles that had appeared in a recent issue of Tempo. (Id. at 26.) According to Moore, Arnold questioned the editors' choice of stories, stating: "that's old news, that's not really news, that happened last year; why are they still writing about that?" (Id.) In addition to these criticisms, Moore said, Arnold also told him that "the paper did not have the right to inquire into the source of funds for student activities." (Id. at 28.)*fn5 Arnold denies making any of these statements. (Arnold Aff. at ¶ 1-2.) That same day, October 6, Arnold sent an e-mail to Moore and Providence, stating that she believed it was "a conflict of interest" for members of her staff to serve as faculty advisors to Tempo. (E-mail, Ex. M to Pl.'s Mot.) Arnold wrote that she had reviewed the "College Media Advisor's Code of Ethics" and discovered that "[t]he publicity interests of the university and the news goals of the student media are often incompatible." (Id.) She further stated that she would no longer serve in an advisory capacity to the newspaper and directed that Moore remain interim-advisor only until a suitable replacement could be found. (Id.) She sent a copy of the e-mail to interim President Pogue. (Id.)

Four days later, on October 10, 2008, Arnold took a step further, sending a letter to Pogue in which she recommended that the University terminate Moore's employment, "effective immediately." (Letter, Ex. O to Pl.'s Mot.) Arnold explained that her department "require[d] a public relations professional" and that Moore did not "have the required skill set or experience in the field." (Id.) Arnold testified that she based her stated conclusions about Moore's skill set and experience upon his unsatisfactory performance writing the two press releases. (Arnold Dep. at 35-37.) She also testified that she had conferred with her immediate superior, Katey Assem, about the prospect of firing Moore. (Arnold Dep. at 119.) Arnold denied that her decision to terminate Moore had anything to do with his role as advisor to Tempo. (Id.) It does not appear that Pogue took any steps to independently review or investigate Arnold's decision.

On October 13, 2008, Pogue notified Moore by letter of his termination, effective immediately. (Termination Letter, Ex. P to Pl.'s Mot.) Defendants contend that Moore's immediate termination was necessary because the public relations department had a "limited budget" and Moore was "not an effective employee." (Def's Stat. of Add'l Facts at ¶ 2.) Plaintiffs contest this assertion. Pogue's letter explained that, while Moore would be relieved of his duties at the University immediately, he would continue to receive his full salary until the expiration of his contract on December 31, 2008, but his contract would not be renewed. (Termination Letter, Ex. P to Pl.'s Mot.) The letter also indicated that if Moore had any questions, he should direct them to Arnold. (Id.)

Within days of Moore's termination, Providence began clashing with Arnold over the newspaper's access to University staff and what Providence perceived as a general "adversarial posture [by the University] towards the paper." (Providence E-mail, Ex. N to Pl.'s Mot.) Arnold testified that she merely requested that Tempo abide by the same protocols that she asked of every other news outlet. Specifically, Arnold asked that Tempo and other news outlets contact her office "as a courtesy" before they interviewed University employees. (Arnold Dep. at 48.) Nevertheless, Providence saw this protocol as a provocation and part of a larger attempt by Arnold to control Tempo's coverage of the University. (Providence E-mail, Ex. N to Pl.'s Mot.) In response to Arnold's policy, Providence threatened to file several "open documents requests" as an alternate means of gathering information on the University. (Id.)*fn6 It is unclear whether he ever filed such requests.

On October 30, 2008, Arnold sent Tempo a "Letter to the Editor," signed by a number of high-level University administrators. Though it is unclear whether the letter ultimately ran in print, the parties do not dispute its authenticity. It says, in part:

In recent issues, you have lobbed anti-Semitic, homophobic, and mean-spirited personal attacks that demonstrate that you are out of step with the expectations of the CSU family.

The First Amendment grants Tempo the right to force literate members of this community to suffer the humiliation of its poor news judgment, grammar, spelling, punctuation, syntax, layout and other faux pas that reflect poorly on the quality of teaching and learning at this institution of higher education. We do not wish to deny you ...


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