Adkerson v. Metropolitan Government of Nashville & Davidson County, TN
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 10/24/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
CAREY JOHN ADKERSON,
OF NASHVILLE AND DAVIDSON
Case No. 3:16-cv-00878
Judge Aleta A. Trauger
Before the court is the Motion to Dismiss Plaintiff’s Second Amended Complaint
(Doc. No. 42) filed by the Metropolitan Government of Nashville and Davidson County
(“Metro”). The motion has been fully briefed by both parties and is ripe for review. For the
reasons set forth herein, the motion will be granted and this case dismissed.
Factual and Procedural History
Plaintiff Carey John Adkerson’s first Amended Complaint (Doc. No. 12) asserted a
procedural due process claim under 42 U.S.C. § 1983 and a whistleblowing claim under the
Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304(b), both in
connection with his alleged termination from his job as a police officer with the Metro
Nashville Police Department (“MNPD”). In January 2017, the court denied Metro’s Motion
to Dismiss the first Amended Complaint.
On May 3, 2017, new counsel for the plaintiff entered an appearance and filed the
Second Amended Complaint (“SAC”) (Doc. No. 41) on his behalf. The SAC articulates a
single cause of action under 42 U.S.C. § 1983, but the factual allegations supporting the
claim have shifted fairly dramatically from those set forth in the first Amended Complaint.
For purposes of reviewing the defendant’s motion, the court accepts as true the factual
allegations in the SAC, summarized here in relevant part.
Plaintiff Carey John Adkerson was formerly employed as a fully commissioned
police officer with the MNPD. On January 6, 2014, Adkerson was decommissioned as an
active police officer because of various disciplinary charges that were then pending against
him. At a hearing conducted on March 5, 2014, he was found guilty of the charges and given
two terminations and thirty-eight days of suspension. His employment was terminated. (SAC
¶¶ 21–22 & Ex. A.) He pursued an administrative appeal, and, on February 19, 2015, the
Metro Civil Service Commission issued a written Order (“reinstatement Order”) directing
that Adkerson “be reinstated to his former position with MNPD with back pay and benefits,
minus a nineteen (19) day suspension.” (SAC ¶ 23 & Ex. B.)
Adkerson was rehired by the MNPD in May 2015 with full back pay and benefits
and, apparently, at the same salary level as before his termination, but the Chief of Police
“refused to give him a badge and a weapon.” (SAC ¶ 24.) In other words, the plaintiff
remained decommissioned. More than a year later, in July 2016, Adkerson submitted a
grievance challenging the Police Chief’s action and requesting that Adkerson’s commission
be “fully restored immediately.” (SAC Ex. C, Doc. No. 41-3, at 3.) The grievance was denied
by the Human Resources Department and at the initial level of appeal. (SAC ¶ 26 & Ex. D.)
Adkerson appealed to the Metro Human Resources Department, which denied his appeal on
the basis that his complaint regarding his assignment within the police department was “nongrievable.” (SAC ¶ 27 & Ex. E.) He appealed to the Civil Service Commission, which
entered a Final Order on November 16, 2016, also denying relief on the grounds that the
matter was non-grievable and notifying Adkerson of his right to file a petition for review of
the Final Order in the Chancery Court for Davidson County, Tennessee. (Final Order, SAC
Ex. F.) 1
The SAC references and included as an exhibit to the SAC numerous MNPD Rules
and Regulations, including Rule 3.50, which outlines the process for a police officer to
appeal an adverse employment action taken against him, and 4.60, which pertains to
decommissioning. As the plaintiff points out, Rule 3.50 did not apply to his situation,
because Rule 4.60 “has no provision for appealing decommissioning.” (SAC ¶ 30; see also
SAC Ex. G.) Further, Civil Service Commission Rule 6.9A, also attached to the SAC, states
that actions that fall within “management rights to schedule and organize work, to make
work assignments, and to prescribe methods and procedures by which work is performed”
are not grievable. (SAC ¶ 32 & Ex. H.)
Adkerson asserts that, without a badge or weapon, he cannot perform the essential
duties of the job of a police officer and, therefore, that the Police Chief’s refusal to issue him
a weapon or badge constitutes a demotion. He also asserts that he had a property interest in
his employment as a police officer with the MNPD and that the MNPD Rules and
Regulations delineate a specific process available to officers who seek to challenge any
adverse employment action taken against them, but the Rules and Regulations do not set out
a process for appealing a decommissioning. Adkerson claims that the failure of the Rules and
Regulations to provide a process for an officer to appeal a decommissioning, as a de facto
Even before that Final Order was issued, however, the plaintiff had initiated the
present action by filing his original Complaint in the Circuit Court for Davidson County,
Tennessee on March 31, 2016, which was later removed to this court.
demotion, constitutes a violation of his due process rights. (SAC ¶ 30.) Finally, he claims that
the MNPD’s refusal to reinstate him to his former position within the police department,
without affording him either a pre-deprivation hearing or a post-deprivation hearing, violated
the Civil Service Commission’s Order that he be reinstated to his “former position with the
MNPD” and also violated his right to procedural due process as guaranteed by the Fourteenth
Amendment to the United States Constitution. (SAC ¶ 36.)
Following the filing of the SAC, Metro promptly filed its Motion to Dismiss, which
has now been fully briefed.
The defendant’s motion is brought under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6),
the court will “construe the complaint in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The Federal Rules of Civil Procedure require
only that a plaintiff provide “a short and plain statement of the claim that will give the
defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether “the
claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can
ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the
“facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on
“legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action” but,
instead, must plead “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–
79 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss.” Id. at 679; Twombly, 550 U.S. at 556.
The Parties’ Positions
Citing Lisle v. Metropolitan Government, 73 F. App’x 782 (6th Cir. 2003), Metro
argues that the Sixth Circuit has already determined that (1) being decommissioned as a
Metro Police Officer and reassigned to a different job within the department, without a
decrease in pay, does not constitute a demotion or adverse employment action, that a Metro
Police Officer has no property interest in his commission or in carrying a gun and a badge,
and, therefore, that no procedural due process right attached to the deprivation of those
accoutrements; (2) being stripped of a gun and badge and moved to a clerical position
constitutes an interdepartmental transfer, which is permitted at the discretion of the Chief of
Police without a due-process hearing; and (3) the Police Chief did not refuse to obey the
Civil Service Commission’s Order, because that Order did not require that Adkerson be
In response, Adkerson concedes that he received all of the back pay to which he was
entitled and that he “suffered no loss of pay or benefits as a result of being decommissioned.”
(Pl.’s Resp. Opp. M. Dismiss, Doc. No. 45, at 3.) He nonetheless insists that the Police
Chief’s refusal to reinstate him to his former position constituted a demotion with respect to
which he was denied his right to procedural due process. He also asserts that he has a
property interest in not being denied the opportunity to be promoted. (Doc. No. 45, at 3.)
Procedural Due Process Claim under § 1983
The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall
. . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. “The due process clause has both procedural and substantive components.”
Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014). Here, the plaintiff raises a procedural
due process claim under 42 U.S.C. § 1983.
To survive a motion to dismiss this claim, the plaintiff “must allege facts showing (1)
that he was deprived of a constitutionally protected liberty or property interest; and (2) that
he did not receive the required process.” Bright v. Gallia Cnty., 753 F.3d 639, 656 (6th Cir.
2014) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 54 (1985); Leary v.
Daeschner, 228 F.3d 729, 741–42 (6th Cir. 2000)). The question here is whether the plaintiff
has alleged facts showing that he was deprived of a property interest.
“Property interests are not created by the Constitution.” Loudermill, 470 U.S. at 538.
Rather, “they are created and their dimensions are defined by existing rules or understandings
that stem from an independent source . . . .” Board of Regents v. Roth, 408 U.S. 564, 577
(1972)). An individual claiming to have a protected property interest in his position “must
have more than a unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it.” Roth, 408 U.S. at 577. A legitimate claim of entitlement “must be
grounded in some statute, rule, or policy.” Hughlett v. Romer–Sensky, 497 F.3d 557, 567 (6th
Cir. 2006). “Whether a person has a ‘property’ interest is traditionally a question of state
law.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012) (citing Logan v.
Zimmerman Brush Co., 455 U.S. 422, 430 (1982)); see also Roth, 408 U.S. at 577. Under
state law, “[a] property interest can be created by a state statute, a formal contract, or a
contract implied from the circumstances.” Ludwig v. Bd. of Trs., 123 F.3d 404, 409 (6th Cir.
1997) (citations omitted). “A statute or contract providing that employees may be disciplined
or terminated only for ‘just cause’ creates a property interest.” Rodgers v. 36th Dist. Court,
529 F. App’x 642, 647–48 (6th Cir. 2013) (citing Loudermill, 470 U.S. at 538–39).
Whether the Plaintiff Had a Constitutionally Protected Property Interest
The plaintiff here insists that (1) the decommissioning, although it did not result in a
reduction in pay, constitutes a demotion because it eliminated his ability to perform the
essential functions of the job of a police officer and limits his opportunities for promotion
and advancement within the MNPD; (2) he had a property interest in not being demoted by
being decommissioned; (3) the unavailability of any procedure for challenging this demotion
violated his right to procedural due process; and (4) the Civil Service Commission’s refusal
to hear his claim that the Police Chief violated the Commission’s reinstatement order
violated his right to procedural due process.
The facts of Lisle v. Metropolitan Government, upon which Metro relies, are
markedly similar to those here. There, three patrol officers with the MNPD were alleged to
have engaged in misconduct and were interviewed by the department’s internal affairs unit
regarding these allegations. The next day, a local paper published an article detailing the
accusations. Shortly thereafter, all three officers were
informed that they had been “disempowered” and transferred from patrol duty
to clerical tasks in the police communications department, which ordinarily
was staffed almost exclusively by civilian employees. This transfer entailed
the officers’ surrendering such incidents of their patrol duty as badges,
uniforms, weapons, cars, and other equipment, but no reduction in salary.
73 F. App’x at 784. The officers complained to the Police Chief that the “disempowerment”
violated departmental regulations and their due process rights, to no avail. Nearly a year
later, the officers were informed that the investigation into their alleged misconduct had
concluded and that no further discipline would be forthcoming. However, they were also not
returned to their former positions and remained “disempowered.” Id.
The officers filed suit, asserting, inter alia, that they had a property interest in their
positions as patrol officers and that they had been deprived of that property interest without
due process. In considering this claim, the Sixth Circuit accepted that the officers had
“received no or practically no process at all,” so “their property claim hinge[d] on whether
anything in Tennessee statute, common law, or regulation creates an interest in their
assignment as patrol officers.” Id. at 785. The court answered that question in the negative.
In reaching that conclusion, the court observed, first, that Tennessee statute accord
civil servants a protected property interest in their positions and that, pursuant to that statute,
“no suspension, demotion, dismissal, or any other action which deprives a regular employee
of such employee’s ‘property right’ will become effective until minimum due process is
provided as outlined [by statute].” Id. at 786 (quoting Tenn. Code Ann. § 8-30-331). The
court also found, however, that,
[i]n the present case, the officers were reassigned, not suspended, demoted, or
dismissed. Nor were they made subject to “any other action which deprives a
regular employee of such employee’s ‘property right.’” Even after the
transfer, they would continue to enjoy the protection against suspension,
demotion, or dismissal. As the general Tennessee civil service statute does not
create a property interest against reassignment, they were not deprived of a
property right protected by that statute.
Id. (quoting Tenn. Code Ann. § 8-30-331).
The police officers also alleged that their transfer was punitive and therefore covered
by a civil service statute that applied specifically to police officers. This statute prohibits
“transfer for punitive reason” without some minimum due process. Id. (citing Tenn. Code
Ann. § 38-8-304). The court rejected this argument on the basis that the referenced statute
also provides a “default rule that can be overridden by local regulation.” Id. Because Metro
Nashville had adopted such local regulations, the statute did not apply, and no other state
statute created a property interest in the officers against reassignment. Turning to the
question of whether the common law created such a property interest, the court found that it
did not, in light of Tennessee’s long-standing recognition of the employment-at-will doctrine.
Finally, turning to whether the municipality’s civil service regulations created the
requisite property interest, the court noted that the “Appointing Authority,” the Chief of
Police in that case, has essentially unfettered discretion under municipal and department
regulations to order inter-departmental transfers and job reassignments, as long as they do not
involve termination, suspension, or a demotion “in pay grade.” Id. at 786–87. The court
therefore found that the plaintiffs’ permanent reassignment to clerical positions, which was
not accompanied by a demotion in pay grade, did not violate the officers’ property interest in
their jobs. In short, because the plaintiffs were not demoted, no property interest was
implicated, and no right to procedural due process was triggered.
Lisle dictates the outcome here. Although the police officer plaintiffs in Lisle did not
refer to the action against them as decommissioning, their “disempowerment” clearly had the
same effect as the plaintiff’s decommissioning here, which likewise resulted in the plaintiff’s
being relieved of his weapon and badge. And the plaintiff here, like the Lisle plaintiffs,
concedes that he did not suffer a reduction in salary or benefits. Like the Lisle plaintiffs, who
were also Metro police officers, Adkerson cannot establish that state statute, common law, or
local regulation created a protected property interest in his assignment as a commissioned
Specifically, the current governing regulations make it clear that Adkerson’s intradepartmental transfer did not constitute a demotion. MNPD Rule 4.10.210(A) defines
“demotion” as “a regular or temporary change of classification and/or compensation of an
employee as a result of disciplinary action from a position in one class to a position in
another class having less responsibility and a lower level of compensation or a reduction in
salary to a lower step in the same classification” (emphasis added). The plaintiff concedes
that his compensation was not reduced. Moreover, MNPD Rule 4.60.020 states that
“[d]ecommissioning, or removal of police authority, is not a disciplinary action” (emphasis in
The plaintiff contends in the alternative that his reassignment constitutes a demotion
because it removed his opportunity for promotion and advancement. The plaintiff, however,
does not allege facts in his Second Amended Complaint to support a claim that his
decommissioning deprives him of the right to seek a promotion or that he ever sought and
was denied a promotion as a result of the decommissioning. In his Response, he asserts
vaguely that “[t]wo promotional opportunities have already alluded him while in this
classification.” (Doc. No. 45, at 4.) Although he attached as exhibits to his Response two
vacancy announcements, he does not claim that he applied for either position, nor does he
explain why the decommissioning deprives him of the ability to seek a promotion.
Moreover, he does not provide any legal support—and the court’s search has revealed
none—for the proposition that a Metro civil servant ever has a protected property interest in a
The plaintiff attached a copy of these rules to the SAC (Doc. No. 41-7) and
referenced them in the body of the pleading. (SAC ¶ 30.) As a result, the court may consider
these documents without converting the defendant’s motion into one for summary judgment.
promotion or the ability to pursue a promotion. And virtually every court to consider the
question has concluded, under the applicable state’s laws, that civil servants do not have a
property interest in the possibility of a promotion or the fairness of the procedures used for
determining promotions. See, e.g., Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir. 2007)
(finding that state employees had a protected interest in continued employment but no
“protected property interest in a promotion” under Colorado law); McMenemy v. City of
Rochester, 241 F.3d 279, 286–88 (2d Cir. 2001) (holding that New York law pertaining to
civil servants did not create a property interest in a promotion or in being considered for a
promotion); Bigby v. City of Chicago, 766 F.2d 1053, 1056–57 (7th Cir. 1985) (dismissing
due process challenge to fairness of test procedures for civil service promotions because
there were no property interests in the promotions themselves under Illinois law); Burns v.
Sullivan, 619 F.2d 99, 104–05 (1st Cir. 1980) (dismissing procedural due process claim
relating to state promotion procedures because the plaintiff had no property interest in a
promotion under Massachusetts law). In the absence of a specific statute or regulation
providing otherwise, this court likewise concludes that the plaintiff has no property interest
under Tennessee law in the possibility or availability of a promotion.
In sum, the decommissioning—or failure to recommission—did not constitute a
demotion. As a result, the plaintiff’s property rights in his position were not implicated, and
he was not due any particular “process,” for purposes of a procedural due process claim,
relating to his reassignment.
The plaintiff further claims that Metro denied him the due process rights guaranteed
by the Civil Service Commission’s own rules by refusing to hear his appeal of the Police
Chief’s refusal to obey the reinstatement Order. That Order states, in pertinent part: “Mr.
Adkerson shall be reinstated to his former position with MNPD with back pay and benefits,
minus a nineteen (19) day suspension.” (Doc. No. 41-2, at 2.) The plaintiff concedes that he
was reinstated to the position of Police Officer 2 at the same rate of pay as before, with back
pay and benefits. He nonetheless contends that the reinstatement Order required that be
recommissioned as a patrol officer and that the Police Chief violated the reinstatement Order
when he refused to recommission the plaintiff and instead assigned him to an essentially
clerical position within the department.
The plaintiff’s allegations establish that he did not actually pursue an action to
enforce the reinstatement Order. Instead, he waited more than a year before filing an entirely
new grievance related to his not having been recommissioned as he believed was required by
the Final Order. That grievance was denied at every level, up to and including his appeal to
the Civil Service Commission, on the basis that the Police Chief has broad discretion to make
job assignments within the police department and therefore that Adkerson’s complaint
regarding his assignment was non-grievable.
To the extent that Adkerson contends that he was deprived of due process because the
MNPD and Metro Rules do not provide a procedure for grieving a decommissioning, that
claim fails, because, as set forth above, the plaintiff had no property right in a particular
assignment within the police department and therefore no right to any particular process
regarding such assignments.
Insofar as the plaintiff is complaining that he did not receive due process because the
Police Chief refused to comply strictly with the reinstatement Order, that claim fails too. The
plaintiff received all the process to which he was entitled: he pursued administrative appeals
up to and including the Civil Service Commission’s reinstatement Order. The Police Chief’s
purported failure or refusal to comply with that Order had nothing to do with the process
afforded the plaintiff as a result of the disciplinary charges against him. The appropriate
course of action, if he believed the Police Chief disobeyed the reinstatement Order, would
have been to pursue a state court action to compel compliance with the reinstatement Order.
Accord Chaney v. Suburban Bus Div., 52 F.3d 623, 631 (7th Cir. 1995) (finding that the
defendant’s failure to comply with an arbitration award did not violate the plaintiffs’ due
process rights, where the plaintiff had received all the process afforded by the union contract,
had won his arbitration, and had the ability to enforce the arbitration award through the
initiation of state court proceedings). Adkerson has not alleged that the state procedure for
enforcing an order issued by the Civil Service Commission is inadequate. See Jefferson v.
Jefferson Cnty. Pub. Sch. Sys., 360 F.3d 583, 588 (6th Cir. 2004) (“Plaintiff may not seek
relief under Section 1983 without first pleading and proving the inadequacy of state or
administrative processes and remedies to redress her due process violations.”).
For the reasons stated herein, the court finds that the factual allegations in the SAC,
construed as true for purposes of the defendant’s Motion to Dismiss, fail to establish a
violation of Adkerson’s right to procedural due process and, consequently, fail to state a
claim under 42 U.S.C. § 1983. The court will therefore grant the defendant’s Motion to
Dismiss the Second Amended Complaint. An appropriate order is filed herewith.
ENTER this 24th day of October 2017.
ALETA A. TRAUGER
United States District Judge
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