The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is before the court for consideration of several motions for summary judgment. Plaintiff has brought suit pursuant to 42 U.S.C. §1983 for alleged violation of his first amendment rights of free speech and political association.*fn1 He alleges he was retaliated against by the defendants because he engaged in protected speech and because he did not support the winning gubernatorial candidate, whom the defendants supported. The four remaining defendants in their individual capacities, Fred Phillips, Lynn Pitts, Larry Rucker, and Charles Laxton, have each filed a motion for summary judgment [docs. 131, 141, 145, 146].*fn2 Plaintiff has responded [docs. 153, 178], and the defendants have filed multiple reply briefs. The court heard oral argument regarding all the motions on August 27, 2007. The motions are ripe for the court's disposition. For the reasons stated herein, the motions will be granted in part and denied in part.
Plaintiff was employed as a Lieutenant with the Tennessee Highway Patrol ("THP"). He alleges that the defendants,*fn3 Fred Phillips ("Phillips"), the Commissioner of the Department of Safety, which operates the THP; Colonel Pitts ("Pitts"); Captain Laxton ("Laxton"); and Lt. Colonel Rucker ("Rucker") retaliated against him after he exercised his First Amendment rights of free speech and political association. Plaintiff contends that after the Democratic governor was elected, plaintiff, a Republican, was retaliated against by Laxton with adverse job actions. In addition, plaintiff contends that he was retaliated against by the defendants because he informed a television reporter about a THP lieutenant, Larry Parsley, who was building houses while on state time. The disciplinary actions about which plaintiff complains are a demotion and transfer that occurred on February 5, 2004, and his termination on May 14, 2004.*fn4
I. Summary Judgment Standard Pursuant to Federal Rule of Civil
Procedure 56(c), summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party may discharge its burden by demonstrating that the non-moving party has failed to establish an essential element of that party's case for which he or she bears the ultimate burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party need not support its motion with affidavits or other materials negating the opponent's claim. Id. at 323. Although the moving party has the initial burden, that burden may be discharged by a "showing" to the district court that there is an absence of evidence in support of the non-moving party's case. Id. at 325 (emphasis in original).
After the moving party has carried its initial burden of showing that there are no genuine issues of material fact in dispute, the burden shifts to the non-moving party to present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "The 'mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to defeat the motion for summary judgment, the non-moving party must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The non-moving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor. Id. at 255. The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251-52.
II. Statute of Limitations
Plaintiff filed his original complaint on February 10, 2005. Defendants argue that several of the acts plaintiff complains about are barred by the statute of limitations applicable in this case. The court agrees.
State law determines the statute of limitations for § 1983 claims because that statutory section does not contain its own limitations period. Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003). Tennessee has a one year statute of limitations for actions brought under federal civil rights statutes, including § 1983. Id. at 266 (citing Tenn. Code Ann. § 28-3-104(a)(3); Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir. 1986)). However, federal law determines when a civil rights action accrues. Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000) (citing Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984)). In Hughes, the Sixth Circuit stated the following regarding the accrual of a civil rights action:
In Sevier, this court concluded as follows: The statute of limitations commences to run when the plaintiff knows or has reason to know of the injury which is the basis of his action. A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.
Hughes, 215 F.3d at 548 (internal quotation marks and citation omitted).
Since plaintiff's suit was filed February 10, 2005, the § 1983 claims that arose prior to February 10, 2004, are barred by the statute of limitations. Defendants argue that plaintiff's claim regarding his demotion and transfer is barred because he received that decision on February 5, 2004. Plaintiff did not respond to the statute of limitations arguments in his pleadings. At oral argument, his counsel mentioned that the disciplinary transfer was not effective until February 16, 2004, and that plaintiff continued to appeal the demotion and transfer decision administratively.
The effective date of the transfer is of no consequence for determining when the statute of limitations began to run. The significant event was the employment decision, the demotion and transfer, and when plaintiff gained knowledge of that decision. Cf. Haeberle v. Univ. of Louisville, No. CIV.A. 01-44-JBC, 2002 WL 768316, at *1 (W.D. Ky. Apr. 29, 2002) ( where plaintiff claimed his tenure application was denied for discriminatory reasons, "his cause of action accrues when the employer makes and communicates a final decision that he will not be granted tenure."). The demotion and transfer decision was conveyed in writing by defendant Phillips to plaintiff on February 5, 2004, and plaintiff received it the same day. At that point plaintiff knew or should have known of his "injury" and should have been alerted to the need to protect his rights.
In addition, the fact that he engaged in administrative appeals does not change the result. Exhausting his state administrative remedies was not a prerequisite to bringing his § 1983 claim. Porter v. Nussle, 534 U.S. 516, 523 (2002); Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982). The statute of limitations was not tolled while plaintiff pursued his administrative appeals. Cf. Haeberle, 2002 WL 768316, at *2 (statute of limitations not tolled while plaintiff pursued university's administrative grievance procedures); see also Roberson v. Tenn., 399 F.3d 792 (6th Cir. 2005) (statute of limitations began to run when student denied readmission from involuntary leave of absence, not when university president issued letter supporting decision); Kessler v. Bd. of Regents, 738 F.2d 751 (6th Cir. 1984) (similar result where plaintiff terminated from employment). Consequently, plaintiff's claim concerning his demotion and transfer is barred by the statute of limitations.
Defendants also contend that the retaliatory acts plaintiff alleges he experienced are barred by the statute of limitations. These acts include: initiating an internal affairs investigation against him for exposing the fraudulent conduct of the THP lieutenant who was building houses on state time; giving him lower performance evaluation scores than in the past; removing him from the riot squad detail; removing him from the University of Tennessee ("UT") football detail; and placing him on the midnight shift. Defendants argue that all of these alleged acts occurred in 2003, more than one year prior to the filing of plaintiff's complaint.
The court agrees with defendants that these acts are time barred. Having occurred in 2003, these acts were outside the statutory period. The continuing violation theory does not apply to save them. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, (2002), the Supreme Court "held that while the continuing violation doctrine applies in hostile environment Title VII discrimination actions, it does not permit recovery for discrete acts of discrimination that occurred outside the statutory period." Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003) (citing Morgan, 536 U.S. at 113). The Sixth Circuit applied this reasoning to cases brought under § 1983 in Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003).
The alleged unconstitutional actions described above that occurred prior to February 10, 2004, "are discrete acts of which [plaintiff] was immediately aware when they occurred" and are therefore time barred. Bell, 351 F.3d at 248; Hayes v. Automated Components Holdings, No. 3:06-CV-00226, 2007 WL 1047650, at *4-5 (M.D. Tenn. Apr. 6, 2007) (alleged adverse employment actions were discrete acts plaintiff considered retaliation at the time they occurred and are time barred). Clearly, plaintiff considered each of these alleged actions of retaliation to be specific and discrete acts of retaliation at the time they occurred, and they occurred in 2003. Therefore, these § 1983 claims are barred by the statute of limitations.
Accordingly, the adverse action that plaintiff has remaining is his termination since there is no question concerning the timeliness of that claim. The court will base its analysis of the defendants' motions for summary judgment solely on the termination claim.
After Phil Bredesen, a Democrat, became Governor of the State of Tennessee, Phillips became his Commissioner of the Department of Safety in January 2003. Phillips had supported Bredesen's campaign and was the campaign chair for Bredesen in Washington County. Phillips appointed Pitts to Colonel in February 2003. Pitts had contributed money to Bredesen's campaign and provided security for Bredesen during the campaign at the request of Dave Cooley.*fn5 On February 3, 2003, Laxton was promoted by Phillips to captain from the rank of sergeant, skipping the rank of lieutenant. Laxton contributed $3,800 to Bredesen's campaign, put signs in his yard, "stood out on election day in the rain and held up signs," attended meetings, and held a fund raiser for Bredesen. Rucker contributed $5,000 to Bredesen's campaign and attended a fund-raiser.*fn6 In March 2003 he was promoted to captain and was assigned to internal affairs.*fn7
Plaintiff is a Republican and donated to Republican candidates. He did not support Bredesen. Plaintiff contends that his political affiliation was common knowledge, as he stated in his deposition, "Bryan Farmer is on the football team because he has got Republican politics." During a conversation he had with Laxton in 2003 about being taken off the football detail that plaintiff taped, references were made to plaintiff being a Republican and Laxton being a Democrat and other political comments were also made. In his deposition, plaintiff was asked how he showed support for the Republican candidate for governor and his opposition to Bredesen. He responded, "Bumper stickers and a yard sign." However, the next day when he testified he did not recall the testimony regarding the bumper stickers and yard signs. He stated, "I may have had one on my wife's car, but I don't like those things on my car personally."
On February 4, 2004, plaintiff attended a due process hearing in Nashville to address the allegations that plaintiff had worked secondary employment while on sick leave and that there were discrepancies in his time records. Laxton, Rucker, and Pitts attended the ...