Case: 5:19-cv-00188-DCR Doc #: 1 Filed: 04/29/19 Page: 1 of 15 - Page ID#: 1
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON No. 5:19-cv-______BUCK RYAN, ) ) Plaintiff ) ) vs. ) Complaint ) Jury Trial Demanded DAVID BLACKWELL, ) In his Individual Capacity, ) ) JOSEPH REED, ) In his Individual Capacity, ) ) DEREK LANE, ) In his Individual Capacity, ) ) MIKE FARRELL, ) In his Individual Capacity, ) ) Defendants ) ______)
Plaintiff Buck Ryan (Ryan) for his complaint against defendants David
Blackwell (Blackwell), in his individual capacity; Joseph Reed (Reed), in his
individual capacity; Derek Lane (Lane), in his individual capacity; and Mike
Farrell (Farrell), in his individual capacity states as follows:
I
Nature of the Action & Background
1. The most immediate and precipitating genesis of this case is an audit
report instigated by the University of Kentucky’s General Counsel’s office that
defamed Ryan, a long-standing and much-honored tenured university faculty
member, by asserting falsely and wrongly that he had exploited his faculty
position to reap undue monies from students in classes he taught by using one of
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his books as required class materials. The audit report which was done by Reed
remained secreted for many months after it was initially generated and its
existence was wholly unknown to Ryan.
2. Reed’s audit report was initially disclosed to Ryan on or after April 30,
2018, when he was presented with it by Interim Director Farrell of the journalism
school and then Dean Dan O’Hair of the university’s College of Communication
and Information. At a subsequent meeting, O’Hair demanded that Ryan resign
his tenured faculty position. When Ryan questioned the basis for this demand,
O’Hair cited Reed’s audit report and stated he was “only a messenger” regarding
the demand for Ryan’s resignation.
3. Ryan refused to resign his position and relinquish his constitutionally-
protected property right in continued employment in that capacity; instead, he
asserted his due process rights that attach thereto.
4. Upon Ryan’s assertion of his due process rights, Blackwell inaugurated
administrative proceedings to terminate Ryan’s tenured employment as a faculty
member, apparently the first time in 50 years or so that the university had
undertaken such an action. In further retaliation for Ryan’s assertion of his
constitutional rights, Blackwell defamed Ryan by stating falsely to third parties in
a press release issued by the University of Kentucky to at least the Lexington
Herald-Leader that Ryan “stole from students. And he used university resources
to do it.”
5. Ryan’s assertion of his due process rights regarding his continued
employment as a tenured faculty member were vindicated: a university
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committee concluded in August 2018 that there was no basis for the termination
proceedings and recommended that they be dropped.
6. Ryan at a public forum challenged Blackwell and university president
Eli Capilouto as to why they attempted to fire him with no grounds to do so and
defamed in this process. This speech addressed matters of public concern and
was protected by the First Amendment.
7. In retaliation for Ryan’s assertion and exercise of his constitutional
rights, Lane and Farrell have retaliated against him by fabricating false and
defamatory claims and removing his teaching responsibilities and discharging
him constructively as a faculty member.
8. Ryan’s claims arise under the common law of Kentucky and 42 U.S.C. §
1983. He seeks recovery of compensatory and punitive damages, costs, litigation
expenses and attorney’s fees.
II
Jurisdiction & Venue
9. This Court has jurisdiction over Ryan’s claims pursuant to 42 U.S.C. §
1983 pursuant to 28 U.S.C. § 1331. The Court has jurisdiction over Ryan’s state
law claims pursuant to 28 U.S.C. § 1367(a), as they are so related to the federal
law claims as to form part of the same case or controversy. Venue is proper in this
Court under 28 U.S.C. § 1391(b)(2), because the events giving rise to this action
occurred in Fayette County, Kentucky.
III
Parties
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10. Ryan is a resident of the Commonwealth of Kentucky and resides in
Fayette County, Kentucky.
11. Blackwell, Reed, Lane and Farrell are also residents of the
Commonwealth of Kentucky.
IV
Facts Giving Rise to the Lawsuit
12. Ryan has been employed at the University of Kentucky as a faculty
member in its School of Journalism & Media since 1994, when he was appointed
as journalism school director, having been recruited from Northwestern
University’s prestigious Medill School of Journalism.
13. At various times during his employment at UK, Ryan served as the first
permanent director of the merged School of Journalism and Telecommunications
(1994-2002), and the first executive director of the University’s First Amendment
Center based at the journalism school (2002-2004). From 1994 to 2002,
according to the endowment agreement, the journalism director also served as
the First Amendment Center director.
14. Ryan has received and been awarded numerous honors and teaching
awards during his employment at UK including being honored seven times in the
last eight years as "A Teacher Who Made a Difference" by UK's College of
Education (2018, 2017, 2016, 2015, 2014, 2013 and 2011); being nominated for
the College of Communication and Information 2018-2019 Faculty Teaching
Excellence Award; receiving the ODK Outstanding Leadership & Student
Enhancement Award presented by University of Kentucky President Eli
Capilouto at the 2nd Annual Leadership Awards ceremony of the Nu Circle
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Chapter of Omicron Delta Kappa, the National Leadership Honor Society, 2015;
receiving the Provost’s Award for Outstanding Teaching for Tenured Faculty at
the University of Kentucky, 2003, after previously being honored by Sigma Kappa
as a “Great Educator” at UK, 1996-97; being named one of Top 50 Journalism
Professors for 2012 by JournalismDegree.org; being honored as National
Runner-up for the 2011 Inspire Integrity Award from the National Society of
Collegiate Scholars, based in Washington, D.C.; and receiving the Faculty Partner
Award, University of Kentucky’s Division of Student Affairs, 2012. He received a
national Telly Award in 2002 for public affairs programming for his KET
documentary, “Citizen Kentucky: Democracy and the Media.”
15. Ryan is and has been since 1994 tenured as an associate professor at
UK.
16. The journalism classes that Ryan has taught at UK have regularly
included, in the last few years, JOU 101, Introduction to Journalism; JOU 303,
News Editing; and JOU 497, The Joy of Writing. For many years he taught his
“Citizen Kentucky: Journalism and Democracy” course in the Freshman
Discovery Seminar series and later in the Honors Program.
17. Ryan developed and regularly used in his classes a book, Writing
Baby, Editing Dog and You: A Friendly Place to Begin Improving Your Writing
(Writing Baby).
18. Ryan’s use of Writing Baby as a teaching aid was approved, in
accordance with university policy, and was listed on the syllabus for his classes.
Those syllabi were reviewed by Ryan’s administrative superiors at the university.
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Many faculty members at UK similarly use materials and books they have
authored or co-authored in the classes that they teach.
19. At a date presently unknown to Ryan, Reed was directed by the
university’s General Counsel’s office to investigate and prepare an audit report
regarding Ryan’s use of Writing Baby.
20. Reed prepared an audit report that included misrepresentations and
false statements, two of the most material being that (1) Ryan had profited “more
than $6K” from use of the Writing Baby book in his classes; and, (2) the audit
complied with the International Standards for the Professional Practice of
Internal Auditing issued by the Institute of Internal Auditors.
21. Reed’s report completely omitted any consideration of the costs
incurred in producing the books and falsely asserted that Ryan’s profits from the
sale of book were equal to the gross sales dollars.
22. Reed’s report was not consistent with the International Standards for
the Professional Practice of Internal Auditing issued by the Institute of Internal
Auditors.
23. Reed’s equating of gross sales dollars to equal profits is not consistent
with internal auditing standards or common sense.
24. Upon information and belief, Reed calculated both the profits and
asserted that the report complied with the aforementioned internal auditing
standards to increase and aggravate the false and negative light in which the
report portrayed Ryan.
25. In a memo dated April 30, 2018, Ryan was summoned to meet with
Dean Dan O’Hair of the College of Communication and Information and Interim
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Director Mike Farrell of the School of Journalism and Media to discuss Reed’s
audit report, which was dated November 6, 2018.
26. Ryan saw Reed’s audit report for the first time as an appendix to the
April 30, 2018, memo.
27. Ryan responded to O’Hair and Farrell with a five-page letter outlining
the audit’s faults, including the false and defamatory statements therein and
asking that the audit be voided.
28. In a subsequent meeting Ryan attended to discuss the aduit and his
five-page letter, Dean O’Hair did neither, only demanded Ryan’s resignation
based on the audit, which did not recommend that Ryan resign. Ryan refused to
resign as demanded by O’Hair.
29. Ryan has a property interest and right in his continued employment as
a tenured faculty member that is protected by the due process clause of the U.S.
Constitution’s Fourteenth Amendment.
30. Rather than submit to the demands for his resignation and the
surrender of his constitutionally-protected property interest and right in his
tenured faculty position, Ryan refused to resign, a refusal that constituted an
assertion of his due process rights under the Fourteenth Amendment.
31. As a result of Ryan’s refusal to resign his employment as a tenured
faculty member and his assertion of his due process rights and in retaliation for
both, Blackwell, on behalf of the University of Kentucky, inaugurated proceedings
to abrogate Ryan’s tenure and terminate his employment.
32. The action to terminate Ryan’s employment was reported in the
Lexington Herald-Leader in a story published May 17, 2018, “UK Moves to Fire
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Professor, Says Book Sales ‘Stole from Students.’ He Vows to Fight.” A copy of
this article is tendered as Ex. 1 to this complaint.
33. Blackwell stated to the Herald-Leader “that Ryan ‘stole from students.
And he used university resources to do it.”
34. Blackwell’s statement that Ryan “stole from students” is false, untrue
and constitutes defamation per se.
35. Blackwell made the false and defamatory statement that Ryan “stole
from students” and “used university resources to do it” in retaliation for Ryan’s
refusal to resign his tenured faculty position and for Ryan’s assertion of his due
process rights attaching to that property interest and right.
36. Ryan’s refusal to resign and assertion of his due process rights resulted
in the termination effort by the university being referred to its Senate Advisory
Committee on Privilege and Tenure (SACPT).
37. After conducting an investigation and taking other appropriate actions,
the SACPT issued a report dated August 6, 2018. A true copy of that report is
tendered as Ex. 2 to this complaint.
38. The SACPT members recommended unanimously that university
president Eli Capilouto end the effort to terminate Ryan’s employment and
tenure, because of a lack of basis or foundation for the action. See Ex. 2.
39. Neither Blackwell nor Capilouto nor anyone else on behalf of the
university has notified or informed Ryan that the efforts to terminate his tenure
and employment has been or will be ended.
40. To the contrary and rather than bringing to a halt the process to
terminate Ryan’s tenure, Capilouto has acknowledged at least impliedly the
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absence of any basis for Reed’s audit report conclusions and Blackwell’s
defamatory statement by requesting from Ryan the information and/or
documentation set forth in a memorandum dated November 2, 2018, from
Capilouto to Ryan and tendered herewith as Ex. 3 to this complaint.
41. Blackwell has neither retracted nor apologized for his false and
defamatory statements that Ryan “stole from students” and “used university
resources to do it”.
42. The proceedings to terminate Ryan’s tenure and employment as a
tenured faculty member became a widely-discussed issue and a matter of public
concern.
43. The efforts of faculty members at the University of Kentucky to
communicate with its Board of Trustees regarding the effort to terminate Ryan’s
tenure and employment were obstructed by the University’s General Counsel
reported the Kentucky Kernel, “’The most explosive internal issue’ in years. UK
faculty feel unrepresented in firing of tenured professor.” (June 1, 2018, true
copy tendered as Ex. 4 to this complaint).
44. Ryan challenged and protested to Blackwell and Capilouto at public
fora the initiation of the proceedings to terminate his tenure and employment.
45. Ryan’s statements at public fora regarding the proceedings to
terminate his tenure and employment constitute matters of public concern, as
they regard directly one of the most explosive internal issues at the University of
Kentucky in years.
46. As a result and in retaliation for Ryan’s assertion of his due process
rights and speech on matters of public concern and to further aggravate and
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exacerbate the injuries done Ryan by Blackwell’s and Reed’s false and defamatory
statements, Lane and Farrell have acted to constructively discharge Ryan as a
tenured faculty member and removed his teaching opportunities, while asserting
false and pretextual bases for doing so.
47. Blackwell, at all times pertinent hereto, has been employed as the
Provost for the University of Kentucky. His actions at issue herein have been
taken under color of law within the meaning of 42 U.S.C. § 1983. He is sued in his
individual capacity.
48. Reed, at all times pertinent hereto, has been employed as an auditor
for the University of Kentucky. His actions at issue herein have been taken under
color of law within the meaning of 42 U.S.C. § 1983. He is sued in his individual
capacity.
49. Lane, at all times pertinent hereto, has been employed as the Interim
Dean of the College of Communications and Information at the University of
Kentucky. His actions at issue herein have been taken under color of law within
the meaning of 42 U.S.C. § 1983. He is sued in his individual capacity.
50. Farrell, at all times pertinent hereto, has been employed as the Interim
Director of the School of Journalism and Media at the University of Kentucky.
His actions at issue herein have been taken under color of law within the meaning
of 42 U.S.C. § 1983. He is sued in his individual capacity.
51. As a direct and proximate result of defendants' wrongful actions and
their violations of Ryan’s rights including his constitutional rights, Ryan has
suffered public embarrassment and humiliation, emotional distress and mental
anguish including staggering damage to his personal and professional
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reputations.
52. Defendants, at all times pertinent to this action, acted in reckless and
gross indifference to Ryan’s rights including his constitutional rights.
V
Causes of Action
Count 1 – Retaliation for Ryan’s Assertion of His Due Process Rights
53. Ryan incorporates herein paragraphs 1 through 52 hereof.
54. Ryan as a tenured faculty member at the University of Kentucky has a
constitutionally-protected property right and interest in his continued
employment in that capacity.
55. Ryan has due process rights that attach to and protect his
constitutionally-protected property right and interest in his continued
employment as a tenured faculty member.
56. When Ryan refused to resign and relinquish his constitutionally-
protected property right and interest, his refusal constituted an assertion of his
due process rights regarding that same property right and interest.
57. Blackwell’s statements that Ryan “stole from students” and “used
university resources to do it” are false and untrue.
58. Blackwell’s statement that Ryan is a thief – that he “stole from
students” -- is defamation per se under Kentucky law.
59. Blackwell made the false and defamatory statement that Ryan is a thief
– that he “stole from students” – in retaliation for Ryan’s assertion of his due
process rights that attach to his constitutionally-protected property right and
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interest in his continued employment as a tenured faculty member at the
University of Kentucky.
60. As a direct and proximate result of the retaliation by Blackwell’s false
and defamatory statements, Ryan has suffered public embarrassment and
humiliation, emotional distress and mental anguish including staggering damage
to his personal and professional reputations.
61. Blackwell in stating publicly and falsely to the Lexington Herald-
Leader that Ryan had “stole from students” acted with gross negligence and/or
reckless and gross indifference to Ryan’s rights.
Count 2 – Defamation by Blackwell’s Statement
62. Ryan incorporates herein paragraphs 1 through 61 hereof.
63. Blackwell’s statement that Ryan “stole from students” is non-
privileged, was made to a third-party and is false and defamatory.
64. Blackwell’s false statement that Ryan is a thief is defamation per se
under Kentucky law.
65. As a direct and proximate result of by Blackwell’s false and defamatory
statements, Ryan has suffered public embarrassment and humiliation, emotional
distress and mental anguish including staggering damage to his personal and
professional reputations.
66. Blackwell in stating publicly and falsely that Ryan had “stole from
students” acted with gross negligence and/or reckless and gross indifference to
Ryan’s rights.
Count 3 - Defamation and False Light by Reed’s Report
67. Ryan incorporates herein paragraphs 1 through 66 hereof.
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68. Reed’s report defames Ryan and/or wrongly casts him in a false light
by falsely reporting that he reaped more than 6,000 dollars in royalties or profits
by improperly using and causing the sale of the Writing Baby book.
69. It was foreseeable to Reed that his audit report would be used to harm
and injure Ryan and that the false and incorrect information therein would
wrongfully promote these actions.
70. As a direct and proximate result of Reed’s wrongful acts and actions,
Ryan has suffered public embarrassment and humiliation, emotional distress and
mental anguish including staggering damage to his personal and professional
reputations.
71. Reed has acted with gross negligence and/or reckless and gross
indifference to Ryan’s rights.
Count 4 – Retaliation for Assertion of Constitutional Rights
72. Ryan incorporates herein paragraphs 1 through 71 hereof.
73. Ryan, as a tenured faculty member, has a clearly-established property
right and interest in his continued employment in that capacity.
74. Ryan has a clearly-established due process right that he asserted in
response to the demands for his resignation.
75. Ryan has a clearly-established right to free speech secured him by the
First Amendment to speak on matters of public concern.
76. The actions by Blackwell and Reed, on behalf of the university, to
terminate Ryan’s employment as a tenured faculty member were matters of
public concern.
77. Ryan’s protests, objections and speech on the unfounded and false
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grounds relied upon for the attempt to terminate his employment as a tenured
faculty member was speech on matters of public concern.
78. In retaliation for Ryan’s assertion of his constitutional rights,
defendants have continued their efforts to coerce Ryan to resign his employment
as a tenured faculty member: Blackwell has never retracted his false statement
that Ryan “stole from students,” Reed has harassed Ryan by continuing his audit
investigation and Lane and Farrell have stripped Ryan of his teaching
responsibilities and substituted therefor duties of a type and nature as to
constitute an adverse employment action and/or constructive discharge from his
employment as a tenured faculty member.
79. As a direct and proximate result of defendants’ wrongful acts and
actions, Ryan has suffered public embarrassment and humiliation, emotional
distress and mental anguish including staggering damage to his personal and
professional reputations.
80. Defendants’ actions have been undertaken with reckless and gross
indifference to Ryan’s constitutional rights.
VI
Demand For Relief
WHEREFORE, plaintiff Buck Ryan demands judgment herein as follows:
(1) That a judgment be entered awarding him compensatory damages in
such amount as found fair and reasonable by a jury at trial;
(2) That a judgment be entered awarding him punitive damages against
defendants to punish them for his gross and reckless indifference to Ryan’s rights
including his constitutional rights and to deter repetition of similar misconduct;
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(3) That a judgment be entered awarding Ryan his monetary damages
sustained as a result of the wrongful actions herein by defendants;
(4) That a judgment be entered awarding Ryan his attorney’s fees, costs,
and litigation expenses pursuant to 42 U.S.C § 1988 and Fed. R. Civ. Pro. 54;
and,
(5) That Ryan be granted such other further relief as he is entitled.
DEMAND FOR A JURY TRIAL
Pursuant to Fed. R. Civ. Pro. 38, Ryan demands trial by jury of all issues
herein so triable.
Respectfully submitted,
/s/ Robert L. Abell Robert L. Abell 120 North Upper Street Lexington, KY 40507 859.254-7076 859.281.6541 fax [email protected] COUNSEL FOR PLAINTIFF
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