Brown et al v. The Metropolitan Government of Nashville and Davidson County, Tennessee et al
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/9/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
KELLY BROWN, ROBERT BROWN,
and SHANA CLAUD-WEST,
GOVERNMENT OF NASHVILLE AND )
DAVIDSON, COUNTY, TENNESSEE; )
and FRED CARR,
Chief Judge Crenshaw
Pending are a Motion to Dismiss (Doc. No. 8) filed by The Metropolitan Government of
Nashville and Davidson County, Tennessee (“Metro”) and a Motion to Dismiss (Doc. No. 23) filed
by Fred Carr (“Carr”). Both Motions have been fully briefed by the parties. (Doc. Nos. 9, 15, 17,
23, 27 and 30). For the reasons that follow, Metro’s Motion will be granted, and Carr’s Motion will
be granted in part and denied in part.
I. Factual Background
Based on the Complaint, the relevant factual allegations (in roughly chronological order) are
Kelly Brown (“Ms. Brown”), Robert Brown (“Mr. Brown”), and Shana Claud-West (“Ms.
Claud-West”) are all long-term employees of the Metropolitan Nashville Public Schools (“MNPS”).
During the relevant period, Ms. Brown was a counselor at Pearl-Cohn High School while Ms.
Claud-West was a counselor at Hunter’s Lane High School. (Doc. No. 1, Complaint ¶ 22, 34). Mr.
Brown has been a schoolteacher in middle Tennessee for more than thirty years. (Id. ¶ 23).
In April 2014, Ms. Brown and three other counselors were instructed by Sonia Stewart, the
principal at Pearl-Cohn, to remove certain students from End of Course (“EOC”) classes and place
them into an “A+ Credit Recovery Program” (“A+ Program”) or another elective course. (Id. ¶ 24).
This was done so that the affected students (some of whom were passing their classes) would not
sit for the year end tests required by Tennessee law. It was also done without notice to the children’s
parents and in violation of MNPS policies. (Id. ¶ 25).
On May 21, 2014, Ms. Brown met with Principal Stewart to discuss the removal of students
from EOC classes, among other things. Principal Stewart said that she was instructed by her
superior to remove the students. (Id.¶ 30). On May 29, 2014, Mr. Brown reported what was taking
place at Pearl-Cohn to his own principal, Steve Chauncy who, in turn, reported it up his chain of
command. (Id. ¶ 31).1
While serving as an academic advisor at Hunter’s Lane High School, Ms. Claud-West, too,
claims to have witnessed the improper removal of students from instructional courses. Specifically,
in July 2013, she discovered that numerous schedules at the school had been changed and that
students had been removed from EOC courses and placed in the A+ Program. (Id. ¶¶ 34, 35).
Then, on February 17, 2014, Assistant Principal (“A.P.”) April Snodgrass removed other “students
from EOC courses in order to prevent their scores from negatively impacting the school’s test score
statistics.” (Id. ¶ 36). When asked the next day via email from Ms. Claud-West why that was done,
Snodgrass refused to answer. (Id. ¶ 37). Three weeks later, Ms. Claud-West was accused of being
It is unclear from the Complaint where Mr. Brown was teaching, but it appears that he was not a
teacher at Pearl-Cohn at this time.
incompetent and insubordinate, and was placed on an “Intervention Plan” by Principal Kessler.2 (Id.
On June 16, 2014, Ms. Claud-West sent a letter to Principal Kessler, Scott Lindsay of MNPS
Employee Relations, and Dr. Ott, the Director of Human Resources for MNPS, informing them
about students being pulled from EOC courses at Hunter’s Lane so that test scores would be
artificially inflated. Ms. Claud-West also claims that she provided Dr. Jesse Register, who at the
time was the Director of Schools, with evidence demonstrating that students were being improperly
removed from EOC courses. (Id. ¶¶ 42. 44).
On July 14, 2014, Ms. Brown and Ms. Claud-West filed a complaint with the United States
Department of Education regarding MNPS’ testing practices and the removal of students from EOC
courses. (Id. ¶ 45). A few months later, on October 14, 2014, Ms. Brown emailed Representative
Rick Womick, who is a legislative member of the Tennessee General Assembly’s Joint Education
Committee, outlining MNPS’s alleged wrongdoing and requesting his assistance.
followed a few weeks later by the submission of evidence gathered by both Ms. Brown and Ms.
Claud-West that contained redacted information regarding individual students. Rep. Womick, in
turn, contacted the Tennessee Department of Education and requested that they investigate the
allegations. (Id. ¶¶ 48, 49).
Between February and April 2015, Plaintiffs and Rep. Womick met with numerous
individuals from various state agencies, including the Tennessee Comptroller, the Department of
Education, and various investigators. Despite their efforts, no official investigation into the testing
practices was conducted. (Id. ¶ 51).
The first names of some of the actors are not provided in the Complaint.
Thereafter, Plaintiffs were interviewed by Phil Williams, an Investigative Reporter for
WTVF News Channel 5 in Nashville, Tennessee. They provided Mr. Williams with several redacted
student records supporting their allegations against MNPS. (Id. ¶ 51).
On November 2, 2015, News Channel 5 aired a report about the manipulation of school
statistics through the pre-test removal (without notice to the parents) of lower performing students
from EOC courses. The following day, it aired an interview with a testing expert, Bob Schaeffer
of the National Center for Fair and Open Testing, who referred to MNPS’ practices as
“gamesmanship” designed to manipulate test scores so that the district’s educational policies
appeared more favorable. (Id. ¶ 55). Additional news agencies, including THE TENNESSEEAN also
covered the testing scandal. (Id. ¶ 56).
On November 12, 2015, Rep. Womick issued a notice that the House Education Committee
would hear testimony regarding the “alleged manipulation of End of Course Examinations, school
performance scores, and district performance scores by [MNPS].” The notice also provided that
“[a]ll individuals who have information regarding the removal of students from these courses prior
to end of course examinations by MNPS and who are willing to offer testimony to or testify. . . will
be afforded the full protection and immunity afforded to them under TCA 8-50-116, known as the
‘Tennessee Whistle Blower Law.’” (Id. ¶ 58).
On December 10, 2015, Plaintiffs testified before the Committee and provided student
records at the Committee’s request. (Id. ¶ 59). After testifying, however, they discovered that a few
documents had not been properly redacted. Upon requesting return of the binders containing the
documents, however, Plaintiffs were informed by Rep. Womick that the documents, whether
redacted or unredacted, had been provided only to those authorized by law to view the material. (Id.
¶ ¶ 60, 61). Rep. Womick then informed MNPS that he and Rep. Brooks had received unredacted
copies in a sealed envelope and they had been forwarded to Committee members and individuals
in the Tennessee Department of Education. (Id. ¶ 62).
On December 30, 2015, MNPS Chief Operating Officer Fred Carr sent letters to Plaintiffs
requesting a meeting to discuss their “apparent violation of the Family Education Rights and Privacy
Act (FERPA),” with the stated reason for this meeting being to gather information regarding the
access and release of “protected student data.” (Id. ¶ 63). On January 5, 2016, Plaintiffs’ counsel
sent Carr a letter stating that, not only did Plaintiffs have a First Amendment right to speak on
matters of public concern, Rep. Womick had assured them that they would not be retaliated against
in any way. (Id. ¶ 67). The next day, Plaintiffs met with Carr and other MNPS officials, at which
time Carr informed Plaintiffs they would be reprimanded. He also threatened their termination. (Id.
On January 8, 2016, Rep. Womick sent a letter to MNPS in which he stated that the evidence
provided to the Committee was protected by the Whistle Blower statute, and that House of
Representative lawyers reviewed the material to make sure it complied with “all privacy laws, in
particular” FERPA. The letter also stated that unauthorized individuals did not have access to the
documents. (Id. ¶ 69).
On January 15, 2016, Carr issued Plaintiffs written reprimands for violating FERPA, and
those reprimands were placed in their permanent personnel files. (Id. ¶ 70). Carr also sent a letter
to the United States Department of Education’s Family Policy Compliance Office to report what he
characterized as “an intentional data breach,” claiming that a “television news report was released
which showed a brief view of a student’s transcript with the name visible.” (Id. ¶ 71).
Based upon the foregoing, Plaintiffs filed a two-count Complaint. Count I, brought pursuant
to 42 U.S.C. § 1983, alleges Plaintiffs’ “First Amendment rights to speak out on matters of public
concern were violated.” (Id. ¶ 73). Count II, brought under state law, alleges a violation of the
Education Truth in Reporting and Employee Protection Act (“ETREPA”), Tenn. Code Ann. § 49-501401.
II. Standard of Review
Rule 12(b)(6) governs dismissal for failure to state a claim upon which relief can be granted
and requires the Court to take all the factual allegations in the complaint as true. Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009). 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. Id. 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. Id. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id.
III. Application of Law
Both Defendants have filed Motions to Dismiss. The Court considers Carr’s motion first
because “[i]f no constitutional violation by the individual defendants is established, the municipal
defendants cannot be held liable under § 1983.” Watkins v. City of Battle Creek, 273 F.3d 682,
685-86 (6th Cir. 2001); see City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person
has suffered no constitutional injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of constitutionally excessive force is quite
beside the point.”).
A. Carr’s Motion to Dismiss
Carr’s request for dismissal is two-fold. He argues that both of Plaintiffs’ claims fail on the
merits and, that, even if they state a claim, he is entitled to qualified immunity.
1. Count I – First Amendment Retaliation
“First Amendment retaliation claims are analyzed under a burden-shifting framework.”
Dixon v. Univ. of Toledo, 702 F.3d 269, 274 (6th Cir. 2012). “In order to state a claim for First
Amendment retaliation, a plaintiff must establish that: (1) he engaged in constitutionally protected
speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary
firmness from continuing to engage in that conduct; [and] (3) there is a causal connection between
elements one and two ‘that is, the adverse action was motivated at least in part by his protected
conduct.’” Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017) (quoting Dye v. Office of the Racing
Comm’n, 702 F.3d 286, 294 (6th Cir. 2012)). “If the employee establishes a prima facie case, the
burden then shifts to the employer to demonstrate ‘by a preponderance of the evidence’ that the
employment decision would have been the same absent the protected conduct.” Dye, 702 F.3d at 295
(quoting Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 208 (6th Cir.2010).
Carr argues that “Plaintiffs’ First Amendment claim fails . . . under the balancing test
established” in Pickering v. Board of Education, 391 U.S. 563 (1968) (Doc. No. 24 at 1). That could
turn out to be the case, but the Court cannot make that determination based upon the present record.
In Pickering, the Supreme Court held that the First Amendment provides protection to public
employees to exercise the right of free speech without risk of retaliation by their employer if the
speech in question is “on matters of public interest.” Pickering, 391 U.S. at 568. That protection,
however, is not absolute because “the State has interests as an employer in regulating the speech of
its employees that differ significantly from those it possesses in connection with regulation of the
speech of the citizenry in general.” Id. Therefore, “[t]he Pickering balancing test is used ‘to
determine if the employee’s free speech interests outweigh the efficiency interests of the government
as employer.’” Gillis, 845 F.3d at 684 (quoting Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d
250, 255 (6th Cir.2006)). “Considerations involved in this balancing test include ‘whether the
statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact
on close working relationships for which personal loyalty and confidence are necessary, or impedes
the performance of the speaker's duties or interferes with the regular operation of the enterprise.’”
Dye, 702 F.3d at 295 (quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)).
Although “Pickering balancing is ‘a matter of law for the court to decide,’” Delvin v. Kalm,
630 Fed. App’x 534, 537 (6th Cir. 2015) (quoting Farhat v. Jopke, 370 F.3d 580, 593 (6th
Cir.2004)), it is not something that can be decided in a vacuum. To the contrary, “[i]n many cases,
due to inadequate factual development, the prong two balancing test cannot be performed on a
12(b)(6) motion.” Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 (9th Cir.1997). So it is
Carr contends that “Plaintiffs’ claim fails because their interest in speaking out against what
they believed to be ‘unethical and illegal testing practices’—more specifically, by speaking with
news media and legislators and producing, at least in one instance, unredacted student records—does
not outweigh MNPS’s (and, by extension, Mr. Carr’s) interest in preventing release of identifying
student information in violation” of FERPA. (Doc. No. 24 at 7). He also argues that the Sixth
Circuit, in Bonnell v. Lorenzo, 241 F.3d 800, 821-824 (6th Cir. 2001), and other courts have
recognized the government’s interest in protecting confidential student records, see e.g., McAvey
v. Orange-Ulster BOCES, 805 F. Supp.2d 30, 41-42 (S.D.N.Y. 2011) (stating that FERPA protected
a student’s “confidentiality rights in his educational records”); Gelfand v. Cherry Creek Sch. Dist.,
2009 WL 87578959, at *11 (D. Colo. June 10, 2009) (recognizing school district’s interest in
protecting the confidentiality of student records).
Although there is little doubt that educators have an interest in shielding confidential student
records, particularly when the same is required by statute, Carr’s placement of FERPA on one side
of the balancing scale is premature. It is premised on something which has yet to be established.
He claims he took action against Plaintiffs because they improperly disclosed records, but it is not
clear that they did so and, more importantly, it is unclear whether Carr took the action he did
because of that alleged disclosure. Improper disclosure may have been the reason for the reprimand,
but it could also be that Carr decided to punish Plaintiffs because they discovered a potential
problem and then had the audacity to air that publicly. This is underscored by Plaintiffs’ contention
that “[t]here has never been a charge of FERPA violation from the United States,” “[n]o parent ever
complained about the Plaintiffs’ conduct,” and “[t]he only accusation of FEPRA violations came
from the Defendant Fred Carr following the Plaintiffs’ disclosure to the media and to the House
Education Committee.” (Doc. No. 27 at 6).
“[I]t is never objectively reasonable to act with a retaliatory intent, regardless of which
direction Pickering balancing tips.” Richardson v. Pratcher, 48 F. Supp. 3d 651, 669 (S.D.N.Y.
2014); see Waters v. Churchill, 511 U.S. 661, 681 (1994) (denying summary judgment where
defendants “would have been justified in firing [plaintiff] for [certain] statements” but there
remained a question as to defendants’ “actual motivation”); Gorman–Bakos v. Cornell Coop.
Extension, 252 F.3d 545, 557 (2d Cir.2001) (denying summary judgment where employer could
have terminated plaintiffs on account of disruptiveness of speech but there was a material issue as
to whether, “even if such disruption occurred, plaintiffs were in fact not dismissed because of the
disruption, but because of the content of their speech”). In fact, “[a]n act taken in retaliation for the
exercise of a constitutionally protected right is actionable even if the action would have been proper
if taken for a different reason.” Hoover v. Radabaugh, 307 F.3d 460, 467 (6th Cir. 2002) (citing
Bloch v. Ribar, 156 F.3d 673, 681 (6th Cir. 1998)). Thus, Carr is not entitled to dismissal on the
grounds that Plaintiffs’ First Amendment claim fails to state a claim.
For much the same reason, Carr’s request for dismissal pursuant to the qualified immunity
doctrine fails. Under that doctrine, “government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “‘In inquiring whether a constitutional
right is clearly established,’” a court “‘must look first to decisions of the Supreme Court, then to
decisions of this court and other courts within our circuit, and finally to decisions of other circuits.’”
Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 566-67 (6th Cir. 2016) (quoting Walton v. City
of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993)). Furthermore, “to be ‘clearly established,’ a
right must be specific to the relevant factual context of a cited case and not generalized with respect
to the Amendment that is the basis of the claim.” Id. (quoting Viilo v. Eyre, 547 F.3d 707, 710 (7th
Carr does not claim that Plaintiffs did not have a clearly established right to speak out about
matters of public concern, or even that the subject about which they spoke–allegedly artificially
inflated tests scores–was not a matter of concern to the public. He argues instead that Plaintiffs have
not “identif[ied] clearly-established law that would have put [him] on notice that disciplining
employees for FERPA violations under the circumstances of this case constitutes a First Amendment
violation.” (Doc. No. 31 at 3-4). Again, that places in issue the central question of whether the
stated reason was the real basis for the reprimands Plaintiffs received. As such, it is a matter that
can only be addressed at a later date after discovery has been conducted.3
2. Count II – ETREPA Claim
As with Plaintiffs’ First Amendment claim, Carr levels a two-prong attack, arguing that the
ETREPA claim fails on the merits or, alternatively, he is entitled to qualified immunity.4 In
response, Plaintiffs contend ETREPA “was clearly established at the time the Defendant Carr
reprimanded Plaintiffs,” and that his “violations of clearly defined state law preclude any finding
that he is entitled to qualified immunity on Plaintiffs’ state law claim.” (Doc. No. 27 at 8, 10).
Because the statute is not as clear as Plaintiffs’ claim, Carr is entitled to qualified immunity.
ETREPA was enacted by the Tennessee Legislature in 1989, with the stated purpose being
The Court recognizes that “[a]lthough courts eschew considering an [official’s] subjective intent
when applying the objective reasonableness test, . . . an [official’s] explanation of his motivations inform a
court’s understanding about what an objectively reasonable [official] would have done under such
circumstances.” Jones v. City of Cincinnati, 736 F.3d 688, 695-96 (6th Cir. 2012) (internal citation omitted).
In other words, “the court may not simply accept what may be a self-serving account by the [official]. It
must look at the circumstantial evidence that, if believed, would tend to discredit the [official’s] story.”
Jefferson v. Lewis, 594 F.3d 454, 462 (6th Cir. 2010).
Although this claim is brought under state law, “Tennessee authority indicates that qualified or
good faith immunity also applies to municipal officers who have been named as defendants in state causes
of action.” Harris v. Metro. Gov’t of Nashville, 2007 WL 4481176, at *9 (M.D. Tenn. Dec. 18, 2007)
(collecting cases); see Fowler v. Burns, 447 F. App’x 659, 663 (6th Cir. 2011) (stating that “Tennessee’s
discretionary function immunity parallels the federal qualified-immunity analysis”); Rogers v. Gooding, 84
Fed. Appx. 473, 477 (6th Cir.2003) (observing that “[t]here is . . . Tennessee authority which applies
qualified or good faith immunity to state law claims”). Furthermore, Plaintiffs do not argue that qualified
immunity is not an available defense to a claim brought under ETREPA.
discourage persons, whether employed, elected or appointed, who are required to
furnish statistical data, reports or other information to local or state departments,
agencies or legislative bodies, from knowingly and willfully making or causing to
be made any false or inaccurate compilation of statistical data, reports or information
related to the operation of an LEA [local education agency] as defined in § 49-1-103.
It is the intent of the general assembly to reduce the waste and mismanagement of
public education funds, to reduce abuses in governmental authority and to prevent
illegal and unethical practices.
Tenn. Code Ann. § 49-10-1402(a). The statute goes on to provide that
[t]o help achieve these objectives, the general assembly declares that public
education employees should be encouraged to disclose information on actions of
LEAs that are not in the public interest and that legislation is needed to ensure that
any employee making those disclosures shall not be subject to disciplinary measures,
discrimination or harassment by any public official.
Id. § (b).
Clearly, the foregoing is broad and remedial language that supports Plaintiffs’ position. So,
too, does the definition of “disclosure of information” which
means the written provision of evidence to any person, the department of education,
a legislator or individual employee of the department or general assembly, or
testimony before any committee of the general assembly, regarding any action,
policy, regulation, practice or procedure, including, but not limited to, the waste of
public education funds, mismanagement, falsification of state required reports,
inaccurate compilation of statistical data or reports or abuse of authority by locally
employed, elected or appointed officials or employees of an LEA.
Tenn. Code Ann. § 49-50-1403.
However, the foregoing language cannot be read in isolation. Rather, “[t]he role of [a court]
in statutory interpretation is to assign a statute the full effect of the legislative intent without
restricting or expanding the intended scope of the statute.” State v. Gibson, 506 S.W.3d 450, 455
(Tenn. 2016); see Metro. Gov’t of Nashville v. The Bd. of Zoning Appeals of Nashville, 477 S.W.3d
750, 756 (Tenn. 2015) (same). “To determine legislative intent, [a court] first look[s] to the plain
language of the statute, giving the statute’s words their natural and ordinary meaning.” Id.;
Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176 (Tenn. 2008) (same).
Here, the retaliation provision of ETREPA provides that “[a] person having knowledge of
a knowing or willful falsification within the meaning of § 49-50-1404 or the waste or
mismanagement of public education funds may report or disclose the falsification, waste or
mismanagement to the department of education or committee of the general assembly or individual
official, member or employee of the department or committee.” Tenn. Code Ann. § 49-15-1408.5
Section 1404, in turn, provides:
No person or persons required by state law, or rules or regulations promulgated
pursuant to those laws to collect, manage, review and maintain accurate records
pertaining to the operation of an LEA shall knowingly and willfully make or cause
to be made any false statement in any detail of statistical or financial data, reports or
other information requested or required by a state official, employee, agency,
department, board, commission or other body in the executive branch of state
government, or any board, commission, committee, member or employee of the
legislative branch of state government.
Id. § 49-50-1404. Finally, the statute provides that “[a]ny person reporting under this part shall
have a civil cause of action against any person or employer who causes a disciplinary action or
threat of a disciplinary action against the reporting person.” Id. § 49-40-1409(a).
Even though the purpose of the statute is intended to be broad as evidenced by its prefatory
language, the actual retaliation section can be read much more narrowly because it is linked to
Section 1404 which prohibits knowingly making a false statement relating to “financial data, reports
or other information requested or required by a state official.”
Plaintiffs do not allege that Carr
made any such false statement, and they concede this point in their reply brief. (Doc. No. 27 at 11).
They argue, instead, that there was an “inaccurate compilation of statistical data or reports” and that
In addition to Section 1404, the statute references Section 1405. That section in inapplicable here
because it relates to the making of false statements to law enforcement or the judiciary.
the “removal of students from required courses constitutes an ‘abuse of authority’ by local officials,
as much as if students took the tests but their scores were not included in the report.” (Doc. No. 15
at 14). Whether such action is covered by the statute is uncertain, but what is certain is that such
coverage was not clearly established under the law at the time that Carr took action against
ETREPA has been the subject of few reported decisions. This is unfortunate for Plaintiffs
for two interrelated reasons.
First, the lack of authority makes overcoming qualified immunity exceedingly difficult. Getz
v. Swoap, 833 F.3d 646, 655 (6th Cir. 2016) (finding summary judgment appropriate based on
qualified immunity given “the dearth of law putting an officer on notice” that what he did was
unconstitutional). See Jones v. Montgomery, 2016 WL 5947347, at *6 (W.D. Tenn. Oct. 13, 2016)
(“The dearth of case law dealing with a factual scenario analogous to the instant case compels a
conclusion that Defendant's actions are covered by qualified immunity.”). This is because “clearly
established” means that “‘[t]he contours of the right [is] sufficiently clear that a reasonable official
would understand that what he is doing violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action in question has previously been held
unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.’”
Wilson v. Layne, 526 U.S. 603, 614-15 (1999) (quoting Anderson v. Creighton, 483 U.S. 635, 639
(1987)). “[A]n action’s unlawfulness can be ‘clearly established’ from direct holdings, from specific
examples describing certain conduct as prohibited, or from the general reasoning that a court
employs.” Baynes v. Cleland, 799 F.3d 600, 612 (6th Cir. 2015) (citing Hope v. Pelzer, 536 U.S.
730, 742-44 (2002)). Simply put, the Supreme Court has made clear that the sine qua non of the
“clearly established” inquiry is “fair warning.” Id.
Second, none of the cases that have addressed ETREPA in any detail would have given Carr
or anyone in his shoes “fair warning” that moving students into credit recovery programs instead
of having them take EOCs constitutes knowingly or willingly providing false information to the state
or the mismanagement of funds within the meaning of ETREPA. To the contrary, in Mosley v.
Kelly, 65 F. Supp. 2d 725, 731 (E.D. Tenn. 1999) the court found the “reporting under the
provisions of this part” language as set forth in Section 1409 to be “ambiguous.” 65 F. Supp.2d at
730. The court also found that while “the phrases ‘abuses in governmental authority’ and
‘prevent[ion] [of] illegal and unethical practices’ would appear to be broad . . . when these phrases
are viewed in light of the rest of the Act, it is clear the legislature had a narrower intent. Namely,
the abuses of governmental authority and illegal and unethical practices the legislature is concerned
about are activities prohibited by sections 49-50-1404 and 49-50-1405 of the Act.” Id. at 731.6
Because neither Section 1404 (the only section applicable here) nor any cases clearly
establish that moving students out of EOC classes to skew scores is covered by the statute, Carr is
entitled to qualified immunity on Plaintiffs’ ETREPA claim.
B. Metro’s Motion to Dismiss
The Complaint alleges that “Metro, and the Defendant Carr, having been duly warned,
adopted and participated in a practice, policy, and custom in violation of the constitutional rights of
The only other case that discusses ETREPA in any detail is inapposite and unhelpful to Plaintiff
because the alleged misconduct clearly fell within the ambit of Section 1406. In Blair v. Rutherford Cty. Bd.
of Educ., 2013 WL 3833516, at *1 (Tenn. Ct. App. July 19, 2013), the Tennessee Court of Appeals, Judge
Richard Dinkins writing for the County, found that inaccurately reporting a teacher’s Value-Added
Assessment System score fell within the ambit of ETREPA and that the statute “does not require that Plaintiff
prove that the allegations made in the report ultimately resulted in a finding of wrongdoing,” id. at *4, in
order for her to recover on her claim.
the Plaintiffs and are therefore liable.” (Doc. No. 1, Complaint ¶ 76). Based on Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978), Metro moves to dismiss, asserting that because the
Complaint is premised on the “singular instance of Fred Carr issuing a written reprimand after
Plaintiffs spoke to news reporter Phil Williams and testified at the House Committee Concerning
removal of MNPS students from certain classes,” (Doc. No. 9 at 4), this is insufficient to establish
a policy or practice. In response, Plaintiffs argue that “[r]emarkably, Metro ignores the landmark
United States Supreme Court case in Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)” which
held “‘it is plain that municipal liability may be imposed for a singe decision by municipal
policymakers under appropriate circumstances.’” (Doc. No. 15 at 10, 11) (quoting Pembaur, 475
U.S. at 480).
The problem with Plaintiffs’ position is that Pembaur also holds that “[m]unicipal liability
attaches only where the decision maker possesses final authority to establish municipal policy with
respect to the action ordered,” Pembaur, 475 U.S. at 481, yet the Complaint contains no such
allegations in relation to Carr’s authority. The unadorned allegation that Carr was the Chief
Operating for MNPS is not enough.
Where, as here, municipal liability is premised upon a decision of an individual, “it must first
be alleged adequately that a defendant is a final policymaker. Only then can a court proceed to the
question of whether the single act or decision of that defendant constituted municipal policy.”
Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994); see ” Blue v.
D.C., 811 F.3d 14, 20 (D.C. Cir. 2015) (“Section 1983 plaintiffs have several ways to allege a
municipal policy, each with its own elements. If the plaintiff fails to identify the type of municipal
policy at issue, the court [is] unable to determine, as required by Iqbal’s second step, whether the
plaintiff had provided plausible support for her claim.”).
Thus, “to survive a motion to dismiss”
Plaintiffs must plead “facts which establish that the challenged policy was promulgated or ratified
by the city’s policymaker.” Groden v. City of Dallas, 826 F.3d 280 (5th Cir. 2016); accord Parkell
v. Danberg, 833 F.3d 313, 331 (3d Cir. 2016); compare Santiago v. Warminster Township, 629 F.3d
121, 125 (3d Cir. 2010) (stating that, to avoid dismissal, plaintiff had “to plead in some fashion that
[official] had final policy making authority, as that is a key element of a Monell claim”) with Paige
v. Coyner, 614 F.3d 273, 284 (6th Cir. 2010) (finding that allegation that public official had “final
policy making authority” for county board of commissioners sufficient to state claim for municipal
liability under § 1983).
Because Plaintiffs do not allege that Carr had final decision making authority, Metro is
entitled to dismissal. Said dismissal, however, will be without prejudice to Plaintiffs’ amending
their claim to adequately plead municipal liability based upon Carr being a policymaker if they can
do so in good faith.
On the basis of the foregoing, Carr’s Motion to Dismiss will be granted with respect to the
ETREPA claim, but denied with respect to Plaintiffs’ First Amendment claim. Metro’s Motion to
Dismiss will be granted.
An appropriate Order will enter.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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