Ellison v. Knox County, Tennessee et al (TV3)
Filing
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ORDER granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim. Signed by Chief District Judge Thomas A Varlan on 1/15/16. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
EMI MARIE ELLISON,
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Plaintiff,
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v.
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KNOX COUNTY, TENNESSEE,
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KNOX COUNTY BOARD OF EDUCATION, )
d/b/a KNOX COUNTY SCHOOLS, and
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TIM BERRY, individually and
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in his official capacity,
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Defendants.
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No.:
3:15-CV-126-TAV-CCS
MEMORANDUM OPINION AND ORDER
This civil matter is before the Court on the motion to dismiss filed by defendants
Knox County, Tennessee, Knox County Schools, and Tim Berry [Doc. 6]. Plaintiff filed a
response [Doc. 10]. After careful consideration of the complaint and the relevant law, the
Court will grant in part and deny in part the motion to dismiss [Doc. 6]. Specifically, the
Court will dismiss the following claims: (1) plaintiff’s Tennessee Public Protection Act
claim for retaliatory discharge, (2) plaintiff’s Tennessee common law claim for
retaliatory discharge.
I.
Background1
In January 2015, defendants hired plaintiff as a science teacher at South-Doyle
High School (“South-Doyle”) [Doc. 1 ¶ 8]. On plaintiff’s first day of employment, a
1
For the purposes of the motion to dismiss, the Court takes plaintiff’s factual allegations
as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that “when ruling on a
defendant’s motion to dismiss, a judge must accept as true all factual allegations contained in the
complaint” (citations omitted)).
student told her that she intended to commit a mass school shooting at South-Doyle [Id. ¶
10]. The student described in graphic detail how she intended to carry out the shooting
[Id.]. Plaintiff alleges that plaintiff knew that the student was a member of ROTC and the
rifle team [Id. ¶ 11]. Plaintiff reported the threat to South-Doyle administration [Id.].
The administration allegedly undertook an investigation into the threats [Id. ¶ 12].
The student described to plaintiff in further detail how she intended to commit the
mass shooting at school [Id. ¶ 13]. Plaintiff alleges that the student said she would “pull
the fire alarm” so her classmates would be “crowded in the hallway and easy targets,”
that it would be “like shooting fish in a barrel,” and she would “shoot [plaintiff] last”
[Id.]. The student would relay these threats to plaintiff on nearly a daily basis [Id. ¶ 16].
Plaintiff then took a week off of work because she was physically and emotionally sick
due to the threats [Id.]. Upon returning to work, plaintiff asserts that the student renewed
her threats [Id. ¶ 17].
Tim Berry, principal of South-Doyle, spoke with plaintiff during a conference call
to discuss the threats against students and faculty [Id. ¶ 19]. At the end of the phone call,
plaintiff alleges that she was lead to believe that the administration was handling the issue
and she would be returning to work in the near future [Id. ¶ 22].
Plaintiff hired counsel on February 2, 2015 [Id. ¶ 23]. Plaintiff’s counsel sent a
letter to Berry advising of his legal representation of plaintiff and requested that no
retaliatory action occur while the matter with the student was being sorted out [Id. ¶ 24].
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On or about February 12, 2015, defendants terminated plaintiff claiming that
plaintiff had resigned [Id. ¶ 25]. Plaintiff contends that defendants’ statements are a
pretext for retaliation as a result of plaintiff exercising her constitutional and statutory
rights, as well as her retention of legal counsel [Id.].
Plaintiff filed a complaint to commence this action against Knox County,
Tennessee, Knox County Board of Education, and Tim Berry [Id. ¶¶ 1–4]. Plaintiff
alleges the following claims: (1) a 42 U.S.C. § 1983 claim for retaliatory discharge, (2) a
Tennessee Public Protection Act (“TPPA”) claim for retaliatory discharge, and (3) a
Tennessee common law claim for retaliatory discharge. Defendants filed a motion to
dismiss all of plaintiff’s claims [Doc. 6].
II.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith
v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
[opposing party] fair notice of what the . . . claim is and the grounds upon which it
rests,’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party’s
“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the
elements of a cause of action will not do,” neither will “‘naked assertion[s]’ devoid of
‘further factual enhancement[,]’” nor “an unadorned, the-defendant-unlawfully-harmed3
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555, 557).
In deciding a Rule 12(b)(6) motion to dismiss, a court must construe the complaint
in the light most favorable to the plaintiff, accept all factual allegations as true, draw all
reasonable inferences in favor of the plaintiff, and determine whether the complaint
contains “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation
omitted). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a
plausible claim for relief will [ultimately] . . . be a context-specific task that requires th[is
Court] to draw on its judicial experience and common sense.” Id. at 679.
III.
Section 1983 First Amendment Retaliation Claim2
Plaintiff asserts a claim under 42 U.S.C. § 1983 that defendants violated plaintiff’s
First Amendment right to freedom of speech by terminating her employment for speaking
on a matter of public concern. In order to prevail on a § 1983 claim, plaintiff is required
to prove two elements: (1) she “was deprived of a right secured by the Constitution or
2
Defendants argue that plaintiff cannot maintain a § 1983 claim for retaliatory discharge
against a government entity or an employee thereof [Doc. 7 p. 5]. Defendants, however, cite no
authority for the premise that state and governmental entities are immune from a § 1983 action
based on a violation of the First Amendment of the United States Constitution. While defendants
cite authority bolstering the argument that the Tennessee Public Protection Act (“TPPA”)
supersedes a common law retaliatory discharge cause of action, they cite no authority that the
TPPA supersedes a federal action such as one filed under § 1983. The Court, therefore, does not
find that governmental entities, or employees thereof, have immunity to a § 1983 action based on
the applicability of the TPPA.
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laws of the United States, and (2) that [she] was subjected or caused to be subjected to
this deprivation by a person acting under color of state law.” Gregory v. Shelby Cty.,
Tenn., 220 F.3d 433, 441 (6th Cir. 2000). It is undisputed that defendants acted under
color of the laws of the State of Tennessee. Therefore, the Court’s inquiry is whether
plaintiff was deprived of a right guaranteed to her by the United States Constitution.
To make out a prima facie case of First Amendment retaliation, plaintiff must
show: (1) that she engaged in speech protected by the First Amendment; (2) that she was
subjected to an adverse employment action that would chill a person from continuing to
engage in that speech; and (3) causation, i.e., plaintiff’s protected speech was a
substantial or motivating factor in defendants’ decision to take adverse employment
action against plaintiff. Guster v. Hamilton Cty. Dep’t of Educ., No. 1:02-CV-145, 2004
WL 1854181, at *9 (E.D. Tenn. Mar. 2, 2004) (citations omitted). The Court finds that
plaintiff has sufficiently made out a prima facie case of First Amendment retaliation.
A.
First Amendment Protected Speech
The first element of the prima facie case involves a two-step inquiry. Id. First,
the Court must determine whether plaintiff’s “speech addressed a matter of public
concern protected by the First Amendment.” Id. If it did address a matter of public
concern, then the Court must engage in a balancing test to determine whether plaintiff’s
interest in her speech was outweighed by the governmental interest in promoting the
efficiency of public service. Id. (citations omitted).
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1.
Matter of Public Concern
Whether the speech is a matter of public concern is a question of law for the Court
to decide, and plaintiff bears the burden of establishing, as a matter of law, that her
speech is constitutionally protected. Id. (citations omitted). The Court must consider
“the content, form, and context of a given statement.” Rodgers v. Banks, 344 F.3d 587,
596 (6th Cir. 2003) (citing Connick v. Meyers, 461 U.S. 138, 147–48 (1983)). Matters of
public concern include speech that relates to “any matter of political, social, or other
concern to the community.” Id. (internal quotation marks omitted) (citing Connick, 461
U.S. at 146).
Plaintiff contends that the safety of schoolchildren and school faculty is a matter
of public concern.
The Sixth Circuit has found that “[s]peech on matters directly
affecting the health and safety of the public is obviously a matter of public concern.”
Chappel v. Montgomery Cty. Fire Prot. Dist. No. 1, 131 F.3d 564, 578 (6th Cir. 1997)
(citations omitted); see also Pacheco v. Waldrop, No. 5:13-CV-00044-TBR, 2013 WL
2581016, at *8 (W.D. Ky. June 11, 2013) (the court agreed with the plaintiff that
“nothing could be more important to the community interests than safety and welfare of
its children” and that “it is difficult to imagine a case that is stronger on the issue of
public concern”). This Court agrees that a potential attack on a school is a matter of
public concern because it affects the safety of schoolchildren and school faculty.
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Defendants argue that plaintiff’s allegations show only that she spoke as an
employee, and not as a citizen intending to speak to an audience wider than that of her
employer. However, “speech does not have to be made in a public setting to constitute
protected speech.” Rich v. Gobble, No. 1:08cv35, 2009 WL 801774, at *20 (E.D. Tenn.
Mar. 24, 2009) (citations omitted). In Givhan v. Western Line Consolidated School
District, 439 U.S. 410 (1979), the Supreme Court examined whether speech from a
teacher to a principal was constitutionally protected.
The Court determined that
“[n]either the [First] Amendment itself nor our decisions indicate that [the freedom of
speech] is lost to the public employee who arranges to communicate privately with his
employer rather than to spread his views before the public.” Id. at 415. The fact that
plaintiff elected to address the alleged threats of violence with internal school
administration, therefore, does not remove the speech from protected status.
Defendants also argue that plaintiff was speaking on matters of personal concern,
and not on matters of public concern. In support of this argument, defendants cite to
portions of the complaint emphasizing plaintiff’s personal fear resulting from the alleged
threats [Doc. 1 ¶¶ 14–16; Doc. 7 p. 8]. Defendants contend that plaintiff spoke “not as a
citizen upon matters of public concern, but instead as an employee upon matters only of
personal interest” and thus “a federal court is not the appropriate forum in which to
review” a personnel decision [Doc. 7 p. 8–9 (citing Connick, 461 U.S. at 138)]. An
employee’s motivation underlying his speech is a relevant but not necessarily dispositive
factor. Bonnell v. Lorenzo, 241 F.3d 800, 812 (6th Cir. 2001). Furthermore, “the
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employee’s entire speech does not have to focus on matters of public concern; as long as
some portion of the speech does so,” it can still qualify as protected speech. Rodgers,
344 F.3d at 597. Thus, “mixed speech” is still subject to First Amendment protection.
Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 894 (6th Cir. 2003).
Plaintiff alleges that she reported to the school’s administration a student’s threat
to commit a mass violent act [Doc. 1 ¶ 12]. This communication, therefore, was not
solely a matter of plaintiff’s personal concern. Rather, the communication involved a
threat to shoot many individuals in the school thereby making it a matter of public
concern.
2.
Pickering Balancing Test
Once plaintiff establishes that her speech touched upon an issue of public interest
or concern, the Court must balance plaintiff’s interest in making her speech against
defendants’ interest “as an employer, in promoting the efficiency of the public services.”
Rodgers, 344 F.3d at 601. This balancing test is referred to as the Pickering test.
Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The Pickering prong is also a question of
law, with defendant bearing the burden of demonstrating that there were legitimate
grounds for the termination. Hughes v. Region VII Area Agency on Aging, 542 F.3d 169,
181 (6th Cir. 2008). Relevant factors in the Pickering analysis include “the manner, time,
and place of the employee’s expression, as well as the context in which the dispute
arose.” Rodgers, 344 F.3d at 601.
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Defendants contend that there is a substantial public interest in maintaining the
confidentiality of matters related to student discipline and that interest outweighs the
interest related to the security of the school. In support, defendants cite to Tenn. Code
Ann. § 10-7-504(a)(4) and the Federal Education Rights and Privacy Act, 20 U.S.C. §
1232(g), both which prohibit the publication or dissemination of student educational
records, which include disciplinary records. However, as plaintiff points out, Tenn. Code
Ann. § 10-7-504(a)(4) provides for an exception to the rule “in cases where the safety of
persons or property is involved.” A threat regarding a mass shooting would, therefore,
not have the confidentiality protection, and also noteworthy is the fact that plaintiff did
not break confidentiality. She reported the threats to administrators within the school
system, and as such, her speech did not even interfere with the purported government
interest as defendants suggest.
Furthermore, the Sixth Circuit has found that public safety is at the “zenith of
public concern.” Chappel, 131 F.3d at 578 (internal quotation marks omitted). The
Court finds, therefore, that defendants have not met their burden with regard to the
Pickering analysis.
B.
Adverse Employment Action
Plaintiff must also allege that she was subjected to an adverse employment action
that would chill a person from continuing to engage in the protected speech. Guster,
2004 WL 1854181, at *9. The Sixth Circuit has noted that examples of adverse action
include “discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to
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promote.” Thaddeius-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999) (citations omitted);
see also Doherty v. City of Maryville, No. 3:07-cv-157, 2009 WL 311118, at *10 (E.D.
Tenn. Feb. 6, 2009) (applying the same examples of adverse action to a § 1983 freedom
of speech claim), rev’d on other grounds, 431 F. App’x 381 (6th Cir. 2011). Plaintiff
alleges that she was discharged, which would therefore qualify as an adverse employment
action.
This Court has found that threats of termination would likely chill a person of
ordinary firmness from continuing to engage in protected speech. Doherty, 2009 WL
311118, at *10.
It follows that actual termination would have the same effect.
Furthermore, defendants have not challenged this element of the prima facie claim. The
Court finds, therefore, that plaintiff has sufficiently pled this element.
C.
Causation
The final element of the plaintiff’s prima facie case is causation, i.e., that
plaintiff’s protected speech was a substantial or motivating factor in defendants’ decision
to take adverse employment action against plaintiff. Guster, 2004 WL 1854181, at *9.
When protected speech occurs very close in time to the adverse employment action, this
constitutes “temporal proximity.” Montell v. Diversified Clinical Servs. Inc., 757 F.3d
497, 505 (6th Cir. 2014). “[T]emporal proximity between events is significant enough to
constitute evidence of a causal connection for the purposes of satisfying a prima facie
case of retaliation.” Id. (citation omitted).
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Here, defendants employed plaintiff for approximately four weeks before firing
her. On her first day, she reported threats alleged in the complaint, and approximately
one month later, defendants terminated plaintiff.
This close temporal proximity is
sufficient for plaintiff to satisfy her prima facie case. Furthermore, defendants have not
challenged this element of the prima facie claim.
IV.
State-Law Claims
Plaintiff asserts two state-law claims in her complaint: (1) a Tennessee Public
Protection Act claim for retaliatory discharge, (2) a Tennessee common law claim for
retaliatory discharge.
Defendants argue that these claims should be dismissed and
plaintiff does not respond to those arguments. In fact, plaintiff does not mention her
state-law claims in her response brief. It is well established in the Sixth Circuit that
failure to respond to an argument made in support of a Rule 12(b)(6) motion to dismiss a
claim results in a forfeiture of the claim.
Notredan, L.L.C. v. Old Republic Exch.
Facilitator Co., 531 F. App’x 567, 569 (6th Cir. 2013); see also E.D. Tenn. L.R. 7.2
(“Failure to respond to a motion may be deemed a waiver of any opposition to the relief
sought.”). Consequently, plaintiff forfeited her state-law claims.
VII.
Conclusion
For these reasons, the Court GRANTS in part and DENIES in part the motion to
dismiss filed by defendants Knox County, Tennessee, Knox County Schools, and Tim
Berry [Doc. 6]. Accordingly, the following claims in plaintiff’s complaint are hereby
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DISMISSED: (1) plaintiff’s Tennessee Public Protection Act claim for retaliatory
discharge, (2) plaintiff’s Tennessee common law claim for retaliatory discharge.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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