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SUTTON v. EVANS

March 14, 1994

HAZEL SUTTON, et al.,
v.
JIMMY EVANS, et al.



The opinion of the court was delivered by: JOHN T. NIXON

 The Court is in receipt of the Magistrate's Report and Recommendation (Doc. No. 51) in the above-styled matter to which Objections have been filed. On October 24, 1991, this Court entered an Order (Doc. No. 54) adopting in part and rejecting in part the Magistrate's Report and Recommendation, thereby denying plaintiffs' Motion for Summary Judgment and granting defendants' Motion for Summary Judgment. Plaintiffs filed a Motion for Relief from the Court's October 24, 1991, Order on October 13, 1992 (Doc. No. 55). By Order entered on March 26, 1993 (Doc. No. 63), the Court granted plaintiffs' Motion for Relief, and vacated its October 24, 1991, Order. Plaintiffs filed a Brief in Response to the defendants' Objections on November 10, 1993 (Doc. No. 66), to which defendants filed a Supplemental Brief (Doc. No. 67) on December 7, 1993. In accordance with the reasoning set forth below, the Court finds some of the objections to be meritorious and modifies the Report and Recommendation as follows.

 I. BACKGROUND

 Plaintiffs Hazel Sutton, Kenneth Holland, Edith Odom, and Kevin Qualls are former employees of the Tennessee Department of Transportation ["TDOT"], based at the TDOT work station in McEwen, Tennessee. On August 14, 1989, plaintiffs filed the instant action under 42 U.S.C. § 1983 for declaratory and injunctive relief against TDOT Commissioner Jimmy Evans, TDOT Regional Engineering Director John Burke, TDOT Superintendent of Civil Engineering Jimmy P. Rice, and TDOT District Maintenance Engineer William T. Tucker. Plaintiffs allege that the defendants threatened to transfer plaintiffs to work stations in other cities in retaliation for the exercise of their First Amendment rights in communicating to high-ranking state officials that defendant Tucker was violating state laws and policies in his administration of the McEwen work station.

 This Court adopted the Magistrate's Report and Recommendation by Order entered on November 3, 1989 (Doc. No. 22). On November 22, 1989, defendants filed a notice of interlocutory appeal (Doc. No. 26) to the Court of Appeals for the Sixth Circuit. By Order entered on December 7, 1989, the Sixth Circuit granted a stay of this Court's November 3, 1989, Order, pending appeal, to the extent that the Order required payment of additional compensation to plaintiffs. (Order, Doc. No. 28, at 2.) On November 8, 1990, the Sixth Circuit vacated this Court's November 3, 1989, preliminary injunction Order on the grounds that the compensation required under the Order is barred by the Eleventh Amendment. ( Sutton v. Evans, 918 F.2d 654 (6th Cir. 1990).) In vacating the district court's Order, however, the Sixth Circuit noted that it 'expressed no view as to the ultimate outcome of the litigation. ( Id. at 658 n.2.)

 Plaintiffs Hazel Sutton and Edith Odom were transferred from the McEwen work station to the Nashville Office of the TDOT. (Aff. Sutton, Doc. No. 61, at 1-2; Aff. Odom, Doc. No. 58, at 1.) Sutton asserts that the transfer required her to drive an additional 106 miles per day. (Aff. Sutton, Doc. No. 61, at 2.) In 1990, approximately one year after being transferred, Sutton and Odom retired from state service. (Aff. Sutton, Doc. No. 61, at 2; Aff. Odom, Doc. No. 58, at 2.)

 Plaintiff Kenneth Holland was transferred from the McEwen work station to the Ashland City Office of the TDOT. (Aff. Holland, Doc. No. 59, at 2.) Holland states that as a result of the transfer he was required to drive approximately 106 miles per day from his home in McEwen to his work in Ashland City, and that the drive aggravated a back condition. (Id.) After working in Ashland City for approximately one year, Holland informed his superiors in December, 1990, that he would be unable to perform his job due to his back condition. (Id.) In January, 1991, Holland advised his superiors that his physician, Dr. John C. McGinnis, had informed Holland that he could return to work. Holland asserts, furthermore, that he provided his superiors with a statement from Dr. McGinnis indicating that Holland was able to return to work. (Id.) According to Holland, defendant Burke informed him that he could not return to work regardless of the statement from Dr. McGinnis since Holland might reinjure his back. (Id.)

 Plaintiff Kevin Qualls was transferred from the McEwen work station to Clarksville. (Aff. Qualls, Doc. No. 60, at 2.) Qualls states that he was required to drive approximately 109 miles per day in his vehicle, a 1979 GMC truck, in order to go to work in Clarksville. (Id.) Qualls left his job in Clarksville in May, 1991, approximately eighteen months after being transferred. (Id.) Qualls asserts that he left his job because he was unable to afford the additional commute, including the cost of repairs to his truck, and that he would not have left the TDOT if he had been permitted to remain at McEwen or had been paid a mileage allowance to cover the costs of the additional commute required by his transfer to Clarksville. (Id.)

 On January 22, 1991, plaintiffs filed a Motion for Summary Judgment. (Doc. No. 34.) In addition, Qualls and Holland requested reinstatement to their original duty station in McEwen. (Id. at 1.) Defendants filed a Motion for Summary Judgment on March 15, 1991. (Doc. No. 39.)

 On September 11, 1991, the Magistrate Judge issued a Report and Recommendation in which the Magistrate recommends that both plaintiffs' and defendants' respective motions for summary judgment be denied. (Report and Recommendation, Doc. No. 51, at 24.) Furthermore, although the Magistrate finds that Odom and Sutton's claims for injunctive relief are moot because both of them have retired from state service, the Magistrate concludes that Odom and Sutton's claims are not subject to dismissal because they may be entitled to relief in the form of attorneys' fees and costs expended in the early stages of litigation if they should prevail in a declaratory judgment that defendants violated their First Amendment rights. (Id.)

 Defendants object to the Magistrate's recommendation that summary judgment be denied on plaintiffs' claims. (Defs.' Objections, Doc. No. 52.) Defendants argue that the claims for injunctive relief by all plaintiffs are moot since none of them currently works for the TDOT. (Id. at 16-17.) Moreover, defendants assert that plaintiffs' claims for attorneys' fees do not create a sufficient controversy to invoke this Court's jurisdiction. (Id. at 17-19.) Defendants argue in the alternative that plaintiffs' speech is not entitled to protection under the First Amendment, and that the Magistrate erred in denying summary judgment on the merits. (Id. at 19-35.)

 On October 24, 1991, this Court entered an Order adopting in part and rejecting in part the Magistrate's Report and Recommendation. (Order, Doc. No. 54.) The Court found that plaintiffs' claims had become moot, and thus denied plaintiffs' Motion for Summary Judgment and granted defendants' Motion for Summary Judgment. (Id. at 3.)

 Plaintiffs filed a Motion for Relief from the Court's October 24, 1991, Order on October 13, 1992. (Mot. Relief, Doc. No. 55.) By Order entered on March 26, 1993, the Court granted plaintiffs' Motion for Relief, and vacated its October 24, 1991, Order to provide plaintiffs with additional time in which to respond to the defendants' Motion for Summary Judgment. (Order, Doc. No. 63, at 1.)

 Plaintiffs filed a Brief in Response to the defendants' Objections to the Report and Recommendation on November 10, 1993. (Pls.' Br. Resp., Doc. No. 66.) Plaintiffs concede that Odom and Sutton's claims for injunctive relief have become moot due to their respective retirements, but plaintiffs argue that Odom and Sutton's claims for attorneys' fees survive. (Id. at 2, 5-7.) Moreover, plaintiffs argue that Holland and Qualls' claims for injunctive relief are not moot because both seek reinstatement to their former positions. (Id. at 2-5.) Plaintiffs request that the Court deny defendants' Motion for Summary Judgment with respect to Holland and Qualls' claims, and that the Court reserve its decision on all of the plaintiffs' claims for attorneys' fees until this action is tried. (Id. at 8.)

 On December 7, 1993, defendants filed a Supplemental Brief in Support of their Objections. (Defs.' Supp. Br., Doc. No. 67.) Defendants argue that Odom and Sutton's requests for attorneys' fees must be dismissed because they did not prevail on their claims against defendants and their requests for fees do not of themselves constitute a live controversy. (Id. at 11-13.) Defendants contend that Holland and Qualls' claims for injunctive relief are moot, that reinstatement is impermissible under the Eleventh Amendment, and that their requests for attorneys' fees accordingly should be denied. (Id. at 5-11.) Alternatively, defendants urge the Court to grant summary judgment against plaintiffs. (Id. at 13-14.)

 II. ANALYSIS

 A. Whether Plaintiffs' Claims Are Moot and/or Are Barred Under The ...


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