Setayesh v. Tennessee, State of et al

Filing 18

MEMORANDUM Signed by District Judge Aleta A. Trauger on 7/10/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
Flora SETAYESH,
Plaintiffs,
v.
STATE OF TENNESSEE;
TENNESSEE BOARD OF REGENTS;
NASHVILLE STATE COMMUNITY
COLLEGE;
FLORA TYDINGS, individually and in her
official capacity as Chancellor of the
Tennessee Board of Regents;
and KIM MCCORMICK, individually and in
her official capacity as Interim President for
Nashville State Community College,
Defendants.

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Case No. 3:18-cv-00335
Judge Aleta A. Trauger

MEMORANDUM
Pending before the court is a Motion to Dismiss (Docket No. 9), filed by the State of
Tennessee, the Tennessee Board of Regents (“TBR”), Nashville State Community College
(“NSCC”), Flora Tydings, individually and in her capacity as Chancellor of TBR, and Kim
McCormick, individually and in her official capacity as Interim President of NSCC.

The

plaintiff, Flora Setayesh, has filed a Response (Docket No. 13), to which the defendants have
filed a Reply (Docket No. 16). For the reasons discussed herein, the motion will be granted in
part.
BACKGROUND1
Setayesh has been employed by NSCC since 2001 and currently holds the position of
tenured professor in the Chemistry Department. In July 2014, Setayesh was appointed Interim

1

The facts are viewed in the light most favorable to the plaintiff.
1

Associate Vice President for Academic Affairs/Executive Assistant to the President. Prior to the
appointment, Setayesh worked as a tenured professor. The transition from a faculty position to
an administrative position changed Setayesh’s contractual status from an academic year contract
to a fiscal year contract. Setayesh’s annual salary in this position was $93,481.50. In June 2015,
Setayesh was promoted to Vice President of Institutional Effectiveness within the Office of
Effectiveness and Strategic Initiatives. Her appointment was temporary, with initial terms of one
year and continuing year-to-year until Setayesh opted to return to a faculty position. As set forth
in the employment agreement memorializing her promotion (“Agreement”), Setayesh’s initial
annual salary as Vice President for Institutional Effectiveness was $115,000.

Her salary

eventually rose to $131,152.70. Prior to her appointment as Interim Associate Vice President for
Academic Affairs, she had a discussion with NSCC President Dr. Van Allen regarding two TBR
policies. The first, General Personnel Policy IV.J.1, indicates that conversions from fiscal year
contracts to academic year contracts will occur at no less than 80% of fiscal year salary (“the
80% rule”). The second, Tenure in Non-Faculty Policy III.C.2, states that, upon transfer or
reassignment, an employee’s salary shall be made consistent with the provisions of any contract
of employment. Setayesh accepted her appointment to an administrative position with the
understanding that these policies would apply to her. The policies were incorporated into the
Agreement and she was informed that they were binding. The Agreement also contained a
special condition expressly stating that “both parties acknowledge that TBR policy governing
tenure and salary conversion supersedes all language associated by this contract,” which was
explained to Setayesh to mean that she would be transferred back to a faculty position at an 80%
salary conversion rate, should she so desire.

2

Setayesh states in her Amended Complaint that her “duties as Vice President of
Institutional Effectiveness mainly included: (i) overseeing human resources, creative services,
and institutional research; and (ii) monitoring resource allocations.” (Docket No. 7 at 4.) She
further states that, during her time as an administrator, she “was a vocal proponent within the
Office of Effectiveness and Strategic Initiatives and the broader College on issues relating to the
proper functioning of the College.” (Id. at 5.) To that end, she voiced multiple “concerns
outside of her official job duties about policies or practices,” including:
(a) the lack of oversight in academic affairs which became a major
cause for concern during the tenure of Ron Davis, the Vice
President of Academic Affairs;
(b) the discovery that the schedule of courses was inconsistent and
contained numerous errors, which cost the college thousands of
dollars, denied many students access to courses, and threatened the
academic integrity of Nashville State, its SACS accreditation, and
its approval to offer [f]ederal financial aid. The net result of the
changes to address Plaintiff’s concerns was that some faculty had
to work a higher number of requisite hours;
(c) the discovery that two faculty members’ courses contained
copyright violations resulting in the removal of those faculty
members’ courses from the schedule;
(d) the discovery that at least one course, that had more than twenty
students, was cancelled so as not to inconvenience a full-time
faculty member;
(e) the discovery that the college had engaged in the practice of adding
unnecessary sections in order to provide some faculty with
preferred schedules, which cost the College more money to fund
salaries;
(f) the discovery that a faculty member had cancelled seven classes
without making up those classes or notifying her supervisor of the
cancellation of those [classes], prompting the resignation of said
faculty member;

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(g) the discovery that certain faculty had agreed to overload contracts
which necessitated that the faculty increase their office hours but
yet the faculty had not increased their office hours;
(h) the discovery that the campus notification system and process were
weak, a violation of the Clery Act requiring schools to have timely
warning when there are known risks to public safety on campus;
(i) the discovery that the Vice President of Finance and
Administrative Services allowed an employee to attend classes
during work hours, a policy violation;
(j) the discovery that Nashville State was offering certain online
courses even though those courses had not been reviewed by the
online committee to test the sufficiency of content, some courses
being outdated and containing copyright violations;
(k) the discovery that TBR did not follow [its] own membership
policy/template for the Nashville State Presidential Search
Committee in October, 2017;
(l) the discovery that some deans asked nonexempt staff to teach in
the classroom at night or during working hours, a violation of the
Fair Labor Standards Act;
(m) the discovery that the College was using a “bridge contract” in
order to avoid a break in service which was reported to the
President of Nashville State and was referred to internal auditing
for investigation; and
(n) the discovery of other miscellaneous practices that resulted in
inefficient utilization of resources and violated applicable policies
and procedures.
(Id. at 5–6.)
Setayesh alleges that her “reporting of her concerns” engendered hostility and harassment
from NSCC faculty members, who engaged in a smear campaign accusing Setayesh of various
wrongdoings, including academic freedom violations.

Three faculty members sent

correspondence to TBR, demanding that Setayesh be fired. A fellow administrator was verbally
aggressive. In August 2017, Setayesh met with Sheryl Gossard, Director of Human Resources.

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Setayesh requested guidance in filing a grievance against the employees she perceived to be
harassing her. Setayesh provided Gossard with examples of the alleged harassment, which
Gossard subsequently provided to Allen. Allen sought assistance from TBR, which advised him
that Setayesh could not avail herself of the grievance process. TBR did not further investigate
the claims to which Allen alerted them.
The following month, weary from the negativity surrounding her time as Vice President
for Institutional Effectiveness, Setayesh submitted a request for transfer from her administrative
position back to the faculty position of tenured professor. Allen recommended to TBR that,
pursuant to NSCC and TBR policy, Setayesh be transferred at a salary rate of 90% of her
administrative salary. Allen stated in his recommendation that Setayesh’s performance had been
“outstanding” and that nearly all of NSCC’s “gains in student retention can be attributed to her
data analysis and ensuing recommendations.” (Docket No. 7-3.) Allen also noted that NSCC
had “no force equal to hers in promoting student success” and that “[t]he changes she initiated
will, unless undone, continue to have a positive impact on our student population.” (Id.) A 2017
performance review of Setayesh’s work corroborated Allen’s praises, assessing her performance
as “outstanding” and an “asset to the college.”

(Docket No. 7 at 8.)

An October 2017

Memorandum of Record confirms that the last administrative employee who was converted to a
faculty position was converted at an 83% salary rate.
Nonetheless, upon review of Setayesh’s request and Allen’s recommendation, TBR and
Tydings—the TBR chancellor—denied Setayesh’s transfer at her requested salary rate. Counsel
for Setayesh sent Tydings a letter, “informing [her] of the long standing policy of converting
salary using the 80% rule.” (Id. at 9.) In response, TBR and Tydings denied that the policy
existed but assured Setayesh that she could return to a faculty position when “it was convenient”

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for Setayesh. (Id. at 10.) On January 2, 2018, McCormick was promoted to Interim President of
NSCC from her previous role of Vice Chancellor of Public Affairs. Setayesh pleads that, as of
that date, she was effectively removed from her position, “in that her authority was removed and
[her] subordinates no longer reported to her.” (Id.) The following week, McCormick met with
Setayesh and informed her that “she was aware of [the] Agreement, but did not care what it said,
and that she intended to ignore it.” (Id.) On February 18, 2018, Setayesh was transferred to a
faculty position at a salary of $3,869.42 per month, roughly half what she expected to make and
significantly less than 80% of the $10,929.39 per month she was making as Vice President for
Institutional Effectiveness. Upon inquiring about the discrepancy, Setayesh was told that “there
is nothing further to explain.” (Id.) Setayesh was not given thirty days’ notice of her transfer.
McCormick then assigned Setayesh to a teaching schedule that required Setayesh to work two
nights per week at a campus across town. Setayesh describes the arrangement as “unfavorable,
difficult, and undesirable” and notes that three part-time faculty members were removed from
their classes in order to schedule her for these classes. In addition, Setayesh was prohibited from
using any of her accrued annual leave before transferring back to her faculty position, despite
having already scheduled a vacation.
Setayesh filed suit on April 3, 2018.2 She brings claims under 42 U.S.C. § 1983 for
violations of her First and Fourteenth amendment rights, by retaliation for speech on matters of
public concern, and for violations of her Fifth and Fourteenth Amendment rights, by takings
without due process. She also brings state law claims for breach of contract against NSCC,
inducement to breach of contract against McCormick, and violations of Tennessee statutory
employee protections against all defendants.

2

Setayesh filed her Amended Complaint on April 10, 2018.
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LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) governs dismissal of lawsuits for lack of subject
matter jurisdiction. “Rule 12(b)(1) motions to dismiss . . . generally come in two varieties: a
facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d
320, 330 (6th Cir. 2007). Here, the defendants challenge the court’s subject matter jurisdiction
in a facial attack, meaning that the defendant “challenge[s] the sufficiency of the pleading itself,”
Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). “When reviewing a facial attack, a
district court takes the allegations in the complaint as true.” Gentek, 491 F.3d at 330.
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); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). 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,
the plaintiff must plead “factual content that allows the court to draw the reasonable inference

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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. According to the Supreme Court, “plausibility” occupies
that wide space between “possibility” and “probability.” Iqbal, 556 U.S. at 678. If a reasonable
court can draw the necessary inference from the factual material stated in the complaint, the
plausibility standard has been satisfied. 
ANALYSIS
1. Eleventh Amendment Immunity
The defendants argue that the State and, as arms of the state, TBR, NSCC, and
McCormick and Tydings (in their official capacities) are immune from suit. “[T]he Constitution
does not provide for federal jurisdiction over suits against nonconsenting States.” Nev. Dep’t of
Human Res. v. Hibbs, 538 U.S. 721, 726 (2003). The Eleventh Amendment states:
The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens of Subjects of a Foreign State.
U.S. Const. Amend. XI. As the Sixth Circuit succinctly stated in Thiokol Corp. v. Dep’t. of
Treasury, State of Mich. Revenue Div., 987 F.2d 376 (6th Cir. 1993), “This immunity is far
reaching. It bars all suits, whether for injunctive, declaratory or monetary relief, against the state
and its departments, by citizens of another state, foreigners or its own citizens.” 987 F.2d at 381
(internal citations omitted); e.g. Tennessee v. Lane, 541 U.S. 509, 517 (2004); Pennhurst State
Schs. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782
(1978). For the purposes of the instant lawsuit, the immunity provided to a state by the Eleventh
Amendment is abrogated in only two circumstances: 1) where the state has itself waived its

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immunity from federal suit; and 2) where Congress has acted to abrogate the state’s immunity.
See Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
While Congress may abrogate states’ Eleventh Amendment immunity, the Supreme
Court has held that it has not done so for § 1983 suits. Quern v. Jordan, 440 U.S. 332, 341
(1979) (“[W]e simply are unwilling to believe, on the basis of such slender ‘evidence,’ that
Congress intended by the general language of § 1983 to override the traditional sovereign
immunity of the States.”). Moreover, neither states nor state officials are “persons” under §
1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a
State nor its officials acting in their official capacities are “persons” under § 1983.”) Thus,
Tydings and McCormick are immune if TBR and NSCC, as arms of the state, are also immune.
This court has previously held that TBR is an arm of the state for Eleventh Amendment
purposes, Kompara v. Bd. of Regents of the State Univ. & Cmty. Coll. Sys. of Tenn., 548 F. Supp.
537, 542 (M.D. Tenn. 1982) (Wiseman, J.); Boyd v. Tenn. State Univ., 848 F. Supp. 111, 114
(M.D. Tenn. 1994) (Wiseman, J.), as has the Sixth Circuit in an unpublished opinion, Dotson v.
State Tech. Inst. of Memphis, 1997 WL 777947 (6th Cir. 1997). While it does not appear that
any court has made an immunity determination with regard to NSCC, the Sixth Circuit, this
court, and other district courts have all held that other Tennessee universities and community
colleges are “arms of the state.” See id. (State Technical Institute of Memphis); Henderson v.
Sw. Tenn. Cmty. Coll., 282 F. Supp. 2d 804, 807 (W.D. Tenn. 2003) (Southwest Tennessee
Community College3); Kompara, 548 F. Supp. at 537, 542 (East Tennessee State University);
Boyd, 848 F. Supp. at 113–14 (Tennessee State University). These institutions are all part of the
same state university and community college system created by Tennessee statute. See Tenn.

3

State Technical Institute of Memphis is a predecessor institution of Southwest Tennessee
Community College.
9

Code Ann. § 49-8-101. NSCC is part of this system as well. Id. The court thus finds that the
State of Tennessee, TBR, NSCC, and Tydings and McCormick (in their official capacities) are
all entitled to immunity under the Eleventh Amendment.
2. Qualified Immunity
The defendants argue that McCormick and Tydings are shielded from individual liability
for Setayesh’s constitutional claims by the doctrine of qualified immunity. Qualified immunity
protects state officials from suit when “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Reilly v.
Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012).

Thus, a two-part test determines whether

McCormick and Tydings are entitled to qualified immunity: (1) whether the facts, viewed in the
light most favorable to Setayesh, show a violation of a constitutional right; and (2) whether the
right at issue was “clearly established” at the time of the alleged misconduct. See Heyne v.
Metro. Nashville Pub. Sch., 655 F.3d 556, 562 (6th Cir. 2011). The court will address Setayesh’s
constitutional claims in turn.
a. First Amendment Retaliation
The defendants argue that McCormick and Tydings are entitled to qualified immunity on
Setayesh’s First Amendment claim because Setayesh fails to establish that a constitutional
violation occurred. A cause of action for First Amendment retaliation requires an employee to
demonstrate 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.”
Mills v. Williams, 276 F. App’x. 417, 418 (6th Cir. 2008) (citing Scarbrough v. Morgan Cnty.

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Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006)). Public employees such as Setayesh generally
have “no right to object to conditions placed upon the terms of employment—including those
which restrict[ ] the exercise of constitutional rights,” but “[t]he First Amendment protects a
public employee’s right, in certain circumstances, to speak as a citizen addressing matters of
public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (quoting Connick v. Myers, 461
U.S. 138, 143 (1983)); accord Keeling v. Coffee Cnty., 541 F. App’x. 522, 526 (6th Cir. 2013).
Accordingly, the Sixth Circuit has held that a public employee’s speech is constitutionally
protected if (1) in making the speech, the employee was speaking as a citizen, and not as a public
employee acting in furtherance of his ordinary responsibilities; and (2) the speech was on a
matter of public concern. See Boulton v. Swanson, 795 F. 3d 526, 531–32, 534 (6th Cir. 2015).
A public employee has “no First Amendment cause of action based on his . . . employer’s
reaction” to speech that was not made as a private citizen on a matter of public concern and is,
therefore, not constitutionally protected. Garcetti, 547 U.S. at 418. The question of whether a
public employee engaged in constitutionally protected speech is a question of law that is
determined by the court. Mayhew v. Town of Smyrna, 856 F.3d 456, 464 (6th Cir. 2017). The
court now looks to whether any of Setayesh’s speech underlying this action can support her First
Amendment claim, as a matter of law.
Setayesh argues that she spoke as a private citizen on a matter of public concern when
she voiced concerns about policies and practices at NSCC. The defendants do not contest that
Setayesh spoke on an issue of public concern. Their sole contention is that Setayesh did not
speak as a private citizen, but rather as a public official. The standard for determining when a
public employee’s speech is exempted from First Amendment protection was initially explained
by the Supreme Court a decade ago in Garcetti, which held that a public employee does not

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speak as a citizen when his speech “owes its existence to the public employee’s professional
responsibilities.” 547 U.S. at 421–22. After Garcetti, many courts read this exception to First
Amendment protection broadly, to the point that a public employee’s speech could be left
unprotected, even when there was no real relationship between the employee’s speech and his
actual job duties. See Boulton, 795 F.3d at 533 (reversing a district court that read Garcetti too
broadly). The Supreme Court addressed the breadth of the Garcetti exception in Lane v. Franks,
134 S. Ct. 2369 (2014), where it expressly rejected an overly expansive reading. The Court
reasoned that “Garcetti said nothing about speech that simply relates to public employment or
concerns information learned in the course of public employment,” and a “critical question” was
“whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not
whether it merely concerns those duties.” Id. at 2379. “After Lane, the Garcetti exception to
First Amendment protection for speech . . . must be read narrowly as speech that an employee
made in furtherance of the ordinary responsibilities of his employment.” Boulton, 795 F.3d 526,
534 (6th Cir. 2015) (quoting Garcetti v. Ceballos, 547 U.S. 410, 411 (2006)) (emphasis added).
The determination before the court is thus whether Setayesh’s Amended Complaint sets forth
facts showing that her alleged protected speech was not in furtherance of her ordinary
responsibilities as Vice President for Institutional Effectiveness.
Setayesh characterizes her various instances of allegedly protected speech as her “voicing
concerns outside of her official job duties about policies or practices.” (Docket No. 7 at 5.) But
whether her speech was outside of her official job duties is not dispositive as to whether she was
speaking as a public official. As the Garcetti court noted:
Formal job descriptions often bear little resemblance to the duties
an employee actually is expected to perform, and the listing of a
given task in an employee’s written job description is neither
necessary nor sufficient to demonstrate that conducting the task is
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within the scope of the employee’s professional duties for First
Amendment purposes.
Garcetti, 547 U.S. at 424–25. The relevant inquiry is whether her speech was outside the scope
of the duties she ordinarily performed in an administrative capacity.
Setayesh pleads that her “duties as Vice President of Institutional Effectiveness mainly
included: (i) overseeing human resources, creative services, and institutional research; and (ii)
monitoring resource allocations.” (Docket No. 7 at 4.) She offers no further detail to these broad
categorizations.

Allen’s letter indicates that data analysis and recommendations regarding

student retention fell under Setayesh’s purview and that Setayesh was responsible for general
promotion of student success. (Docket No. 7-3.) The Sixth Circuit has provided guidance on
defining an employee’s duties in such cases:
Determining whether an employee speaks as a private citizen or as
a public employee can be challenging. The Supreme Court has not
“articulate[d] a comprehensive framework for defining the scope
of an employee’s duties in cases where there is room for serious
debate.” Instead, the “proper inquiry is a practical one.” To aid in
the assessment of a public employee’s statement, “we must
consider both its content and context.” In our pre-Lane case law,
we recognized several non-exhaustive factors to consider,
including: the speech’s impetus; its setting; its audience; and its
general subject matter. We have continued to utilize these “who,
where, what, when, why, and how” considerations post-Lane,
which inform the answer to Lane’s “critical question”: “whether
the speech at issue is itself ordinarily within the scope of an
employee’s duties.”
Mayhew, 856 F.3d at 464. (internal citations omitted). Some of these factors militate against
Setayesh having spoken as a private citizen. For example, she pleads that she “was a vocal
proponent within the Office of Effectiveness and Strategic Initiatives and the broader College on
issues relating to the proper functioning of the College.” (Id. at 5.) That Setayesh confined her
speech to her office and the NSCC undercuts her argument that she spoke as a private citizen.

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See Haynes v. City of Circleville, 474 F.3d 357, 364 (6th Cir. 2007) (finding that an employee
spoke as a public official when he wrote an internal memo to his supervisor); Garcetti, 547 U.S.
at 421 (same). But these considerations are outweighed by the subject matter of her speech.
The court notes that some of Setayesh’s instances of allegedly protected speech could
plausibly fall within her job duties of overseeing human resources, creative services, and
institutional research, or monitoring resource allocations.

But the court must at this stage

construe the facts in the light most favorable to Setayesh.

And, viewing the facts in the light

most favorable to Setayesh, the subject matter of her speech supports her claim that she spoke as
a private citizen. The content of at least some of her allegations clearly falls outside of her
ordinary job duties, even as broadly defined. For example, the discovery that NSCC was
offering certain online courses without review by the appropriate committee does not fit within
any of the duties described by Setayesh. The discovery that some faculty members’ courses
contained copyright violations is related to a duty of monitoring resource allocations only to the
extent that all functionary duties are reducible at some base level to financial considerations.
And concerns about a lack of oversight in academic affairs is not a “human resources” issue, as
that term is commonly understood. “The mere fact that a citizen’s speech concerns information
acquired by virtue of his public employment does not transform that speech into employee [ ]
speech.” Lane, 134 S.Ct. at 2379. This is for good reason: “speech by public employees on
subject matter related to their employment hold special value precisely because those employees
gain knowledge of matters of public concern through their employment.” Id. Setayesh’s speech
was related to the proper functioning of the college beyond the areas over which she had
responsibility. Lane instructs that this is precisely the type of speech that gives rise to a First
Amendment retaliation claim. Id. at 2380. Setayesh sufficiently pleads that at least some of her

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speech, while based on information obtained through her employment, was not made in
furtherance of her ordinary duties at NSCC. Her First Amendment claim will not be dismissed at
this stage.
b. Due Process
Construing the Amended Complaint in the light most favorable to Setayesh, she alleges
three violations of procedural due process. First, she alleges that the defendants violated the
terms of the Agreement without due process, “especially in causing a tangible monetary loss of
salary and benefits” by, amongst other actions, denying her requested salary conversion rate.
(Docket No. 7 at 16.) Second, she alleges that TBR and NSCC eliminated her appointment
without thirty days’ notice, preventing her from using accrued annual leave. Third, she alleges
that TBR and NSCC denied her access to an internal grievance process, which she sought to use
to file formal complaints against co-workers who allegedly harassed her in response to her
protected speech. The second and third allegations—that Setayesh was transferred back to a
faculty position without notice and denied access to an internal grievance procedure—are not
made against Tydings or McCormick and will therefore not be considered. The first allegation,
however, implicates Tydings.

See id. at 13 (“[T]he unconstitutional decision to deny

[Setayesh]’s salary request in transferring back to a faculty position, contravening her Agreement
and prior long standing institutional practice as made by [Tydings], a final policy maker at the
TBR.”).
The Sixth Circuit has held that procedural due process liability arises where there is a
property right that triggers due process protections. See Braun v. Ann Arbor Charter Tp., 519
F.3d 564, 573 (6th Cir. 2008) (“In order to have a property interest in a benefit, a person must
have more than a desire for it or unilateral expectation of it; rather, he must have a legitimate

15

claim or entitlement to it”). Setayesh sufficiently pleads such an interest in the salary she was
denied when Tydings rejected her transfer at a salary rate commensurate with the 80% rule
allegedly incorporated into the Agreement.

However, deprivation of property without due

process is not actionable under § 1983 when the property interest in question is merely a
quantifiable sum of money. See Ramsey v. Bd. of Educ., 844 F.2d 1268, 1274 (6th Cir. 1988)
(collecting cases).

In Ramsey, the Sixth Circuit held that an employee could not bring a

procedural due process claim under § 1983 based on a reduction of accumulated sick leave days.
The court explained:
[A]n employee deprived of a property interest in a specific benefit,
term, or condition of employment, suffers a loss which is defined
easily . . . and therefore, any interference with that interest is
redressed adequately in a state breach of contract action.
Id. The employee’s loss was easily quantifiable: “Ramsey has lost 113 (her eliminated days)
times the amount of compensation per day the Board will give her when she retires.” Id. The
Sixth Circuit held that § 1983 was therefore not an appropriate vehicle for redress.

Id.

Setayesh’s due process claim against Tydings—violation of the Agreement, “especially in
causing a tangible monetary loss of salary and benefits”—seeks redress for a loss comparable to
that in Ramsey.

(Docket No. 7 at 16.) What Setayesh is allegedly due under the 80% rule is

easily quantifiable and, thus, could be addressed via a state breach of contract claim if she sought
no additional damages.
But in addition to her monetary injuries, Setayesh pleads that she also suffered
humiliation, embarrassment, emotional distress, and damage to her reputation. “[M]ental and
emotional distress caused by the denial of procedural due process itself is compensable under
§ 1983.” Contract Design Grp., Inc. v. Wayne State Univ., 635 F. App’x 222, 233 (6th Cir.
2015). And, unlike Setayesh’s monetary injuries, damages for her mental and emotional distress
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are not ascertainable via rote calculation and are not recoverable via a state breach of contract
action. Kindred v. Nat’l Coll. of Bus. & Tech., Inc., No. W2014-00413-COA-R3CV, 2015 WL
1296076, at *11 (Tenn. Ct. App. Mar. 19, 2015) (“In Tennessee, the general rule is that there can
be no recovery of damages for mental anguish occasioned by a breach of contract.”). Thus,
Ramsey does not preclude Setayesh’s claim, and it will not be dismissed at this stage.
Setayesh also brings a claim for violation of her substantive due process rights:
Additionally, due process requires written rules and written
standards. Due process requires that rules enforced must actually
exist. Nowhere in the policies and requirements of the TBR or
[NSCC] is the policy stated which was used to reduce [Setayesh]’s
salary below what was contracted for in her Agreement. This
policy was imposed in an arbitrary and capricious manner, a
substantive due process violation.
(Docket No. 7 at 17.) Construing this charge broadly, the court reads Setayesh’s claim as
alleging that Tydings violated her substantive due process rights by arbitrarily rejecting her
requested salary conversion in contravention of the Agreement. In other words, because TBR
and NSCC did not have a specific written policy in place for determining when the 80% rule
would not apply, Tydings acted in an arbitrary and capricious manner by rejecting Setayesh’s
proposed salary conversion rate. In response, the defendants argue only that Tydings is entitled
to qualified immunity because Setayesh suffered no clear violation of constitutional rights from
the lack of written rules and standards for determining when recommended salary conversion
rates do not apply. But the defendants misunderstand Setayesh’s argument. Setayesh “does not
merely allege an arbitrary application of procedures, or lack thereof, but that this act was one of
many used in furtherance of the violation of [Setayesh]’s First Amendment rights.” (Docket No.
13-1 at 20.) Thus, the relevant inquiry is not, as the defendants argue, whether Setayesh had a
right to have written procedures and standards applied to her contract dispute. It is whether

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Tydings, by acting arbitrarily, violated clearly-established First Amendment rights. Setayesh
argues that she had clear rights to freedom of expression that Tydings violated by denying her
requested salary conversion as punishment for protected speech. Indeed, First Amendment
violations can give rise to a substantive due process claim. See Perry v McGinnis, 209 F.3d 597,
609 (6th Cir. 2000).

Thus, Setayesh sufficiently pleads that Tydings violated her clearly-

established rights by arbitrarily ignoring the Agreement as retaliation for protected speech.
Tydings is not entitled to qualified immunity on this claim.
3. Statutory Immunity
The defendants argue that McCormick and Tydings are statutorily immune from liability
for Setayesh’s state law claims against them. In support, McCormick and Tydings cite T.C.A. §
9-8-307, which reads in pertinent part as follows:
(h) State officers and employees are absolutely immune from
liability for acts or omissions within the scope of the officer’s or
employee’s office or employment, except for willful, malicious, or
criminal acts or omissions or for acts or omissions done for
personal gain.
Tenn. Code Ann. § 9-8-307(h) (emphasis added). For all of her state law claims, Setayesh pleads
willful or malicious conduct on behalf of the individual defendants.

With regard to the

inducement to breach of contract claim against McCormick, Setayesh pleads knowingly and
intentionally ignored the Agreement in transferring her at a salary not commensurate with her
expected salary under the 80% rule. With regard to the claim for violation of Tennessee state
employment protections, Setayesh pleads that Tydings and McCormick knowingly and willfully
took adverse actions against her by transferring and otherwise discriminating against her
regarding the compensation, terms, location, and privileges of her employment in response to

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constitutionally-protected activity. Tydings and McCormick, therefore, cannot avail themselves
of statutory immunity.
CONCLUSION
For the foregoing reasons, the defendants’ Motion to Dismiss will be granted in part in a
separate order.
______________________________
ALETA A. TRAUGER
United States District Judge

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