Brown v. City of Harrodsburg, Kentucky et al

Filing 15

MEMORANDUM OPINION & ORDER: 1) that dft's Motion to Dismiss 10 is GRANTED, 2) that Plaintiff's claims filed pursuant to 42 U.S.C. § 1983 are DISMISSED against all Defendants; 3) that Plaintiff's state law claim under Section 2 of the Kentucky Constitution DISMISSED WITHOUT PREJUDICE against all Defendants; 4) that a judgment consistent with this Opinion & Order will be entered contemporaneously; 5) this matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 03/31/2015.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

TOBIE BROWN,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CITY OF HARRODSBURG,
KENTUCKY, et al.,
Defendants.

Civil Case No.
5:14-cv-390-JMH
MEMORANDUM OPINION & ORDER

***
This matter is before the Court on Defendants’ motion
to dismiss Plaintiff’s Amended Complaint in this action.
[DE 10]. Plaintiff has responded [DE 13], and Defendants
have replied [DE 14]. Thus, this motion is now ripe for
review. For the reasons which follow, Defendants’ motion
will be granted.
I. Factual and Procedural Background
Plaintiff Tobie Brown was hired as a dispatcher for
the

Harrodsburg

Police

Department

Communications

and

Records Department on September 23, 2013. [DE 6 at 3]. She
was

hired

on

a

probationary

period,

which

was

later

extended and set to expire on April 22, 2014. [Id.]. On
March

8,

complaining

2014,
of

Plaintiff

the

behavior

filed
of

her

a

written
supervisor,

grievance
Gail

M.

Napier. [DE 6 at 4]. Plaintiff alleges that “Ms. Napier

began a systematic effort to gather false and misleading
evidence to support the termination of Plaintiff.” [Id.].
Plaintiff was terminated on May 1, 2014. [DE 6 at 3]. She
claims

that

her

termination

was

a

direct

and

proximate

result of, and in retaliation for, her written grievance
against Napier. [DE 6 at 4]. Following her discharge on May
1,

Plaintiff

“grieved

her

discharge

and

requested

a

hearing” on May 12, 2014. She was denied a hearing on May
27, 2014. [Id.].
Plaintiff brings a federal claim under 42 U.S.C. §
1983, alleging a violation of her rights under the First
and Fifth Amendments, and her Fourteenth Amendment right to
due process, as well as a state law violation of her due
process

rights

pursuant

to

Section

2

of

the

Kentucky

Constitution. Plaintiff seeks damages for past and future
loss of wages and pain and suffering, punitive damages, and
reinstatement

of

her

former

position

with

the

City

of

R.

Civ.

P.

Harrodsburg. [DE 6].
II. Standard of Review
A

motion

12(b)(6)

to

tests

dismiss
the

pursuant

to
of

the

sufficiency

Fed.

plaintiff’s

complaint. The court views the complaint in the light most
favorable

to

well-pleaded

the

plaintiff

factual

and

must

allegations
2

accept

contained

as

true

within

all
it.

Thompson v. Bank of Am., N.A., 773 F.3d 741, 750 (6th Cir.
2014). “To survive a motion to dismiss, a complaint must
contain

sufficient

factual

matter,

accepted

as

true,

to

‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is plausible when it contains facts that allow the
court to draw the reasonable inference that the defendant
is liable for the alleged misconduct. Id. “The plausibility
standard ... asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id.
III. Discussion
A. Section 1983 Claims
For a plaintiff’s 42 U.S.C. § 1983 claim to survive a
motion to dismiss, “[f]irst, a plaintiff must allege that a
defendant

acted

under

color

of

state

law.

Second,

a

plaintiff must allege that the defendant's conduct deprived
the plaintiff of rights secured under federal law.” HandyClay v. City of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir.
2012) (citation omitted). Absent either element, no claim
exists. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir.
1991).
Defendants do not dispute whether their actions were
under color of state law. Thus, the question before this
3

Court

is

whether

Defendants
Fifth,

Plaintiff

deprived

or

her

Fourteenth

has

of

her

a

plausible

rights

Amendment.

The

claim

under

the

Court

that

First,

finds

that

Plaintiff does not have a plausible claim and will address
each alleged constitutional violation in turn.
1. First Amendment Claim
Plaintiff
complaining

alleges

of

her

that

after

supervisor’s

she

filed

behavior,

a

her

grievance
supervisor

“began a systematic effort to gather false and misleading
evidence to support the termination of Plaintiff” and then
Plaintiff was terminated in retaliation for her complaint.
[DE 6 at 4]. Plaintiff also states she was deprived of her
position

“for

exercising

her

right

...

to

grieve

her

employers’ decision ... pursuant to the City’s policies and
procedures.” [DE 6 at 4-5].
“To establish a prima facie case of First Amendment
retaliation

under

demonstrate

42

that:

constitutionally

U.S.C.
(1)

§

[she]

protected

1983,

[Plaintiff]

was

engaged

activity;

(2)

must

in

[she]

a
was

subjected to adverse action or deprived of some benefit;
and

(3)

the

protected

speech

was

a

substantial

or

motivating factor in the adverse action.” Farhat v. Jopke,
370

F.3d

omitted).

580,
As

to

588

(6th

whether

Cir.
the
4

2004)

(internal

plaintiff

has

quotation

engaged

in

a

constitutionally protected activity, the Supreme Court has
established a four-step analysis. See Devlin v. Kalm, 531
F. App'x 697, 704 (6th Cir. 2013) (summarizing the case
law).

The

whether

first

the

step

relevant

in

this

speech

analysis

addressed

is

to

matters

ascertain
of

public

concern. See Connick v. Myers, 461 U.S. 138, 143 (1983)
(discussing the public concern rule where plaintiff invokes
the Speech Clause); Borough of Duryea, Pa. v. Guarnieri,
131 S. Ct. 2488, 2495 (2011) (discussing the rule where
plaintiff invokes the Petition Clause).
“[S]o

long

as

the

speech

relates

to

matters

of

‘political, social, or other concern to the community,’ as
opposed to matters ‘only of personal interest,’ it shall be
considered

as

touching

upon

matters

of

public

concern.”

Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1052
(6th Cir. 2001) (quoting Connick, 461 U.S. at 146–49). To
determine whether the plaintiff’s speech addresses a matter
of public concern, the Court must look at the “content,
form, and context of a given statement, as revealed by the
whole record.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470
F.3d 250, 256-57 (6th Cir. 2006) (citing Connick, 461 U.S.
at 147-49)). If the relevant speech is of private concern,
it

is

not

entitled

to

First

Amendment

protection

and

Plaintiff’s complaint will not survive a motion to dismiss.
5

See Rorrer v. City of Stow, 743 F.3d 1025, 1047-48 (6th
Cir. 2014); Unger v. City of Mentor, 387 F. App'x 589, 593
(6th Cir. 2010).
As

for

Plaintiff’s

speech

in

the

case

at

bar,

Plaintiff’s Amended Complaint states only that “Plaintiff
filed a written grievance complaining of the behavior of
her supervisor, Gail M. Napier.” [DE 6 at 4]. Defendants
contend

that

Plaintiff’s

employment

grievance

is

not

a

matter of public concern. Plaintiff responds simply that
more discovery is needed to determine whether there exists
an

issue

of

public

concern,

until

“the

reasons

for

the

retaliation are fully explained.” [DE 13 at 4]. This is not
the law. Before discovery, the complaint must, at least,
contain facts upon which a plausible claim can be based.
Iqbal,
contain

556

U.S.

at

“detailed

678.

Although

factual

a

complaint

allegations,”

“a

need

not

formulaic

recitation of a cause of action’s elements will not do.”
Twombly, 550 U.S. at 545 (2007).
Here, there are no facts to support the inference that
the

content

of

Plaintiff’s

speech

was

on

a

matter

of

interest to the community. In fact, on the facts alleged,
Plaintiff’s

speech

about

her

suspension

can

only

be

construed as the type of internal grievance that typically
falls outside the realm of speech of public concern. See
6

Connick, 461 U.S. at 141 (holding that speech concerning
office morale and the level of confidence in supervisors
was not speech on matters of public concern); Rorrer, 743
F.3d at 1047-48 (6th Cir. 2014) (citing cases); see also
Akers v. McGinnis, 352 F.3d 1030, 1037 (6th Cir. 2003).
Accordingly, the Court finds that Plaintiff has not alleged
facts

sufficient

to

support

a

plausible

claim

for

a

violation of her First Amendment rights.
2. Fifth Amendment Claim
In addition to her claim under the Due Process Clause
of the Fourteenth Amendment, Plaintiff brings a claim under
the

Fifth

Amendment

Due

Process

Clause.

“The

Fourteenth

Amendment's Due Process Clause restricts the activities of
the states and their instrumentalities; whereas the Fifth
Amendment's

Due

Process

Clause

circumscribes

only

the

actions of the federal government.” Scott v. Clay Cnty.,
Tenn.,

205

F.3d

867,

873

n.8

(6th

Cir.

2000)

(citing

Sturgell v. Creasy, 640 F.2d 843, 850 (6th Cir. 1981)).
Defendants argue that Plaintiff has raised no allegations
against the federal government, and therefore, her Fifth
Amendment
Having

claim
raised

should
no

be

dismissed.

allegations

The

against

Court

agrees.

the

federal

government, Plaintiff’s Fifth Amendment claim is redundant
of her Fourteenth Amendment claim and will be dismissed.
7

3. Fourteenth Amendment Claim
According to Plaintiff’s Amended Complaint, she “had a
legitimate expectation of future employment with the City
of Harrodsburg rising to a property right that was taken
away without due process of law.” [DE 6 at 4-5]. Thus,
Plaintiff

alleges

that

Defendants

violated

her

Fourteen

Amendment right to due process when they terminated her
position and denied her request for a hearing. [Id.].
To

succeed

on

her

Fourteenth

Amendment

due

process

claim, Plaintiff must first establish that she enjoyed a
protected interest in her position and then, that she was
“afforded the procedures to which government employees with
a property interest in their jobs are ordinarily entitled.”
Kuhn v. Washtenaw Cnty., 709 F.3d 612, 620 (6th Cir. 2013)
(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
538

(1985)).

Plaintiff
position

Thus,

has
as

the

established
a

dispatcher

threshold
a

question

protected

with

the

is

interest

Harrodsburg

whether
in

her

Police

Department.
“Government employment amounts to a protected property
interest when the employee has a legitimate expectation of
continued employment.” Curby v. Archon, 216 F.3d 549, 553
(6th Cir. 2000) (internal quotation and citation omitted).
Whether Plaintiff has a legitimate expectation of continued
8

employment in her position is determined by state law. Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972). In Kentucky, it is presumed that employment is atwill unless the parties “clearly stat[e] their intention”
to agree otherwise. Shah v. Am. Synthetic Rubber Corp., 655
S.W.2d

489,

491-492

(Ky.

1983);

see

also

McDonald

v.

Webasto Roof Sys., Inc., 570 F. App'x 474, 477 (6th Cir.
2014)

(interpreting

Kentucky

law).

Thus,

to

establish

a

protected interest in her position, Plaintiff “must be able
to point to some statutory or contractual right conferred
by the state” that establishes a legitimate expectation to
continued employment. Bailey v. Floyd Cnty. Bd. of Educ. By
& Through Towler, 106 F.3d 135, 141 (6th Cir. 1997).
Defendants

argue

that

Plaintiff

has

no

protected

interest in her position because there is no employment
contract that alters the at-will relationship. In response,
Plaintiff

relies

upon

the

fact

that

she

completed

her

probationary period, 1 and thus is entitled to a deprivation

1

The Amended Complaint states Plaintiff was terminated on May 1, 2014,
after her probationary period expired on April 22, 2014. [DE 6 at 3].
Defendants introduce documents to rebut this contention and Plaintiff
provides her own exhibits in response. However, these documents, which
are not referred to in the Amended Complaint and contradict facts
alleged in it, are not appropriately considered at the motion to
dismiss stage. See Mediacom Se. LLC v. BellSouth Telecomms., Inc., 672
F.3d 396, 400 (6th Cir. 2012). Regardless, the Court finds that whether
Plaintiff did or did not complete her probationary period is irrelevant
for the reasons articulated in this section, namely, that even if
Plaintiff did complete the probationary period, there is nothing to
show that she remained anything but an at-will employee. The Court

9

hearing. But the completion of the probationary period does
not

in

itself

continued

establish

employment.

sufficient

to

probationary

show

period,

a

legitimate

Plaintiff
that
her

still

after

must

she

employment

expectation
allege

to

facts

completed

the

relationship

was

altered from the presumed at-will status. Bailey, 106 F.3d
at 141. Plaintiff has not done so.
Plaintiff’s
upon

the

Amended

City

of

Complaint

Harrodsburg

refers

to

Personnel

and

relies

Policies

and

Procedures. 2 However, this document expressly states that
“nothing

in

the

semantical

classification

of

employees”

(those that are on probation and those that are “regular”
employees) “is intended to create a contract of employment”
and “[a]ny individual may voluntarily leave employment or
be terminated at any time.” [DE 10-2 at 16]. Although the
document outlines an “appeals process,” the section notes
that

“it

intention

is
to

specifically
create

any

not

the

property

City

right

Commission’s
or

employment

situation that compromises its at-will employment status.”
[DE 10-2 at 22]. There are similar disclaimers in other

accepts the alleged facts in the Amended Complaint as true and proceeds
under the assumption that Plaintiff did complete the probationary
period.
2
The Court notes that it relies upon the Policies and Procedures
because it is a document that is incorporated into the Amended
Complaint by reference, [DE 6 at 4], and there is no dispute of fact as
to its relevance. See Mediacom, 672 F.3d at 400.

10

sections throughout the document as well. [DE 10-2 at 7;
19]. In Kentucky, an express disclaimer is sufficient to
show that the at-will relationship remains unaltered by an
employee manual. See Noel v. Elk Brand Mfg. Co., 53 S.W.3d
95, 98 (Ky. Ct. App. 2000); Nork v. Fetter Printing Co.,
738 S.W.2d 824, 826 (Ky. Ct. App. 1987). Therefore, the
Personnel Policies and Procedures cannot suffice, on their
own,

as

a

contract

that

alters

the

presumed

at-will

relationship.
The Court notes that the Kentucky Supreme Court has
considered other factors that may establish the existence
of an employment contract or overcome a disclaimer in an
employee manual. Shah v. Am. Synthetic Rubber Corp., 655
S.W.2d 489, 490 (Ky. 1983) (holding courts should consider
“the

understanding

inference

from

agreements,

of

the

their

the

parties

written

usage

of

or

as

oral

business,

ascertained
negotiations

the

situation

by
and
and

objectives of the parties, the nature of the employment,
and

all

circumstances

surrounding

the

transaction.”).

However, Plaintiff has alleged no facts to indicate that
any

of

these

relationship
position.

other

that

While

factors

altered
the

established

the

Court

at-will

will

draw

a

contractual

status
all

of

her

reasonable

inferences in favor of the Plaintiff, there must be some
11

facts upon which the Court can draw the inferences. See
Iqbal, 556 U.S. at 678. Accordingly, the Court finds that
Plaintiff has not alleged facts sufficient to support a
plausible claim for a violation of her Fourteen Amendment
right to procedural due process.
4. Conclusion: Dismissal of § 1983 Claim
The

Plaintiff

has

not

alleged

facts

sufficient

to

support her claim that Defendants deprived her of rights
secured under federal law. See Handy-Clay, 695 F.3d 531,
539.

As

such,

Plaintiff’s

federal

claim

pursuant

to

42

U.S.C. § 1983 will be dismissed.
B. State Law Claims
The

Court

Plaintiff’s

has

remaining

supplemental
state

law

jurisdiction
claim

for

over
alleged

violations under Section 2 of the Kentucky Constitution. 28
U.S.C. § 1367(a). When claims over which the district court
has original jurisdiction have been dismissed, the court
may decline to exercise supplemental jurisdiction over the
remaining

claims.

28

U.S.C.

§

1367(c)(3).

“Generally,

‘[w]hen all federal claims are dismissed before trial, the
balance of considerations usually will point to dismissing
the state law claims, or remanding them to state court if
the action was removed.’” Carmichael v. City of Cleveland,
571

F.

App'x

426,

434

(6th
12

Cir.

2014)

(quoting

Musson

Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1254–55
(6th Cir. 1996)). Having dismissed all federal claims over
which

the

declines

Court

to

has

exercise

original

jurisdiction,

supplemental

the

jurisdiction

Court

over

the

remaining state law claim. That claim will be dismissed
without prejudice.
Furthermore,

because

the

Court

will

dismiss

Plaintiff’s claims, it will not address the other relevant
defenses raised by the Defendants.
CONCLUSION
For the reasons stated above, IT IS ORDERED:
1)

that

Defendants’

Motion

to

Dismiss

[DE

10]

is

GRANTED,
2) that Plaintiff’s claims filed pursuant to 42 U.S.C.
§ 1983 are DISMISSED against all Defendants;
3) that Plaintiff’s state law claim under Section 2 of
the

Kentucky

Constitution

DISMISSED

WITHOUT

PREJUDICE

against all Defendants;
4)

that

a

judgment

consistent

with

this

Opinion

Order will be entered contemporaneously;
5) this matter is STRICKEN from the active docket.
This, the 31st day of March, 2015.

13

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