w. mattews davis suit

7/23/2019 W. Mattews Davis Suit

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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

Case 3:15-cv-00752-CSC Document 1 Filed 10/15/15 Page 1 of 11


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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.

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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

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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.

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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.

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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.

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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.

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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


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


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

w. mattews davis suit

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