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Desoto v. Board of Parks and Recreation

United States District Court, M.D. Tennessee, Nashville Division

November 25, 2014

PAMELA MARIE DESOTO, Plaintiff,
v.
BOARD OF PARKS AND RECREATION, et al, Defendants,

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For Pamela Marie Desoto, Plaintiff: Benjamin M. Rose, LEAD ATTORNEY, Joshua Douglas Arters, Law Offices of Ben M. Rose, PLLC, Brentwood, TN.

For Metropolitan Government of Nashville and Davidson County, Tennessee, Tommy Lynch, Defendants: Keli J. Oliver, LEAD ATTORNEY, Allison L. Bussell, Derrick C. Smith, Metropolitan Legal Department, Nashville, TN.

For Metropolitan Government of Nashville and Davidson County, Tennessee, Defendant: Keli J. Oliver, LEAD ATTORNEY, Allison L. Bussell, Derrick C. Smith, Metropolitan Legal Department, Nashville, TN.

For Chris Taylor, Defendant: Charles J. Mataya, LEAD ATTORNEY, John P. Rodgers, Bradley Arant Boult Cummings LLP (Nashville Office), Nashville, TN.

For Bryan Irvin, Jerry Moore, Kevin Hooper, Defendants: Rebecca Cothran Blair, The Blair Law Firm, Brentwood, TN.

For Danny Duke, In their official and individual capacities, Defendant: Kevin C. Klein, LEAD ATTORNEY, The Klein Law Office, PLLC, Nashville, TN.

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MEMORANDUM

ALETA A. TRAUGER, United States District Judge.

Pending before the court are several motions related to the plaintiff's Amended Complaint, including separate motions to dismiss under Rule 12(b)(6) filed by defendants Tommy Lynch (Docket No. 13), Metropolitan Government of Nashville & Davidson County (" Metro Nashville" ) (Docket No. 16), the Board of Parks & Recreation (Docket No. 18), Kevin Hooper, Bryan Irvin, and Jerry Moore (Docket No. 20), Chris Taylor (Docket No. 24), and Danny Duke (Docket No. 30), as well as four Motions to Stay Discovery filed by particular defendants (Docket No. 38, 41, 42, and 44). For the reasons stated herein, certain claims will be dismissed with prejudice, certain claims will be dismissed

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without prejudice, the plaintiff will be granted leave to file an amended pleading, and discovery will be stayed pending further order of the court.

BACKGROUND

I. Overview and Amended Complaint Allegations

The plaintiff, Pamela Marie DeSoto, is an employee of the Parks & Recreation Department (" Parks & Recreation" ), a branch of Metro Nashville. The Board of Parks and Recreation (the " Board" ) supervises, controls, and operates Parks & Recreation. Until 2013, DeSoto worked as a sergeant with the Parks Police, which is a division of Parks & Recreation. In 2013, DeSoto was de-commissioned and was essentially demoted to a non-police position. DeSoto is female, Hispanic, 55 years old, and is in a same-sex relationship.

Although DeSoto inappropriately attempts to introduce various facts outside the record in her omnibus Response to the motions to dismiss, the court will focus on the well-pleaded allegations in her Amended Complaint. DeSoto alleges that she was hired by Parks Police in 1982 as one of the division's first females and as its first Hispanic officer. She rose to the rank of sergeant, becoming the division's highest ranking female officer, and had an impeccable work record during the course of her employment.

DeSoto generally alleges that, after being hired, she " has been forced to endure repeated acts of discrimination and a hostile work environment." (Am. Compl. ¶ 12.) She alleges that, " [i]n the past, attempts have been made by her supervisors to prevent [her] from obtaining promotions and pay raises for which she was more qualified than her peers." ( Id.) She does not provide any details concerning these general allegations, such as when they allegedly occurred, what positions they related to, and what type of " discrimination" (race, age, sex, or sexual orientation) they allegedly reflected. Whatever the nature and timing of these incidents may have been, she alleges that they led her to file a " charge of discrimination" with the Equal Employment Opportunity Commission (" EEOC" ) in 2002. ( Id.) Aside from the fact that she filed an EEOC charge, DeSoto does not allege any specifics concerning the charge or how it was resolved.

DeSoto alleges that, after she filed the charge in 2002, things " improved slightly" but she " continued to be discriminated against in a variety of ways." ( Id. ¶ 13.) DeSoto provides only one purported example of this alleged discrimination: after she successfully lobbied to have a female restroom built at Parks Police headquarters, male officers began using the restroom as well, at which point DeSoto complained. Parks Police changed both the male and female bathrooms to " unisex" bathrooms at an unspecified time. DeSoto claims that this change of bathroom designation reflected a " retaliatory action[]" by Parks Police designed to show female officers that they were " not welcome at Parks Police." [1] ( Id. ¶ 13.) DeSoto also alleges that " Metro's agents regularly harassed and intimidated [her] in the past through the use of degrading items, such as condoms." (¶ 24.) DeSoto does not provide any specifics, such as whether the conduct occurred before or after her 2002 EEOC charge, who allegedly engaged in it, whether she reported it to anyone, or whether anyone addressed it.

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The gravamen of DeSoto's claims relates to her interest in a promotion in 2013. In early 2013, a lieutenant's position at the Parks Police became available. DeSoto communicated to her supervisor (Captain Chris Taylor) and unspecified other people that she intended to apply for the lieutenant's position. DeSoto had received an " outstanding" performance review in December 2012 and believed that she was qualified for the position. DeSoto also believed that her colleague, Sergeant Bryan Irvin, was a " rival" for the position who " was being groomed" for promotion by the Parks Police. ( Id. ¶ 23.) She alleges that Sergeant Irvin is younger than she, although she does not specify whether Sergeant Irvin is over or under the age of 40.

Applications for the open lieutenant position were scheduled to be accepted in July 2013. However, in May 6, 2013 ( i.e., approximately two months before applications would be accepted), Captain Taylor " de-commissioned" DeSoto without warning,[2] based on the results of (in the Amended Complaint's words) a " purported investigation" that " had apparently begun months earlier." [3] ( Id. ¶ 15.) The de-commissioning effectively precluded DeSoto from being a viable candidate for the open lieutenant's position. Although DeSoto does not allege that anyone else participated in Captain Taylor's initial decision to de-commission her, she alleges that the de-commissioning was the result of ongoing discrimination by the " Parks Police" against her, based on her sexual orientation, gender, race, and age.

The Amended Complaint is somewhat vague concerning the chronology of events that followed. On the date on which Sergeant Taylor de-commissioned her (May 6, 2013), DeSoto was forced to surrender her firearm and other equipment.[4] DeSoto alleges that Captain Taylor, who was armed, ordered DeSoto to enter the back of a " police car" in which Sergeant Irvin and her former subordinate officer, Officer Jerry Moore, were seated. Sergeant Irvin and Officer Moore were armed at the time, whereas Officer DeSoto was not.[5] DeSoto alleges that Captain Taylor ordered her into the car " ostensibly to retrieve additional equipment." [6] ( Id. ¶ 16.) In a later section of the Amended Complaint, she alleges that she repeatedly pleaded with Captain Taylor not to force her into the police car. ( Id. ¶ 51.) The Amended Complaint is somewhat vague about what happened next. In ¶ ¶ 16 and 50, she alleges that she " was eventually allowed to leave the Parks Police premises with her sister and brother and brother-in-law, neither of whom was armed," but she complains

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that " they were closely followed by Parks Police and ordered to travel directly to Sgt. DeSoto's residence." In ¶ 51, she alleges that Captain Taylor, Sergeant Irvin, and Officer Jerry Moore " compelled [her] to enter the police car and travel to her personal residence." The only plausible inference from these allegations is that DeSoto was initially ordered to enter the car, refused to do so, and ultimately was permitted to travel to her residence (or to leave the premises) separately.[7]

On June 25, 2013, Director of Parks and Recreation Tommy Lynch sent DeSoto a letter alleging that she had violated four of Metro's Civil Service Rules, including deficient or inefficient performance of duties, insubordination toward a supervisor, violation of the department's written rules, policies, or procedures, and dishonesty.[8] According to DeSoto, Captain Taylor and Director Lynch both recommended that DeSoto be terminated for those purported violations.

Following her initial de-commissioning, DeSoto requested an internal Department Hearing to challenge the alleged violations. That hearing was held on June 18, 2013, and DeSoto's current counsel appeared on behalf of DeSoto. ( See Docket No. 51, Ex. 4, Transcript of Departmental Hearing.) The hearing panel, which included Director Lynch, found that the dishonesty violation was " inconclusive" but that the other three violations were supported. (Am. Compl. ¶ 17; see also Docket No. 49, Ex. 3, Petition for Review, at Ex. A thereto (pp. 11-12), June 25, 2013 Letter from Director Lynch to Desoto).[9] The panel recommended that DeSoto be suspended

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for 20 days (rather than terminated) and that she be demoted from the rank of sergeant to the rank of " officer," with a commensurate reduction in salary.

Soon thereafter, DeSoto appealed the panel's decision to the Civil Service Commission (" CSC" ), which apparently has been overseeing proceedings related to DeSoto's appeal since that time (hereinafter, the " CSC Appeal" ). According to the Amended Complaint, Parks Police-related employees subsequently destroyed records of DeSoto's that were relevant to her appeal. First, at some point during the pendency of DeSoto's appeal to the CSC, Captain Taylor and Officer Kevin Hooper " cleaned out" DeSoto's office and " purged" it of her personal documents, which DeSoto alleges contained unspecified evidence of " discrimination" against her by the Parks Police. During a deposition in the CSC Appeal, Taylor testified that he removed the records unilaterally (without notice to DeSoto or her counsel) because DeSoto was " never coming back to Parks Police as a supervisor" -- notwithstanding the pending appeal of her de-commissioning. In another deposition in the CSC Appeal, Officer Hooper admitted that, without notice to DeSoto or her counsel, he had taken personal manuals and other property belonging to DeSoto from her patrol car to his private residence.[10] DeSoto also claims that unspecified individuals removed " valuable and sentimental items" from her office, including a personal watch and antique badges. DeSoto alleges that " the defendants" engaged in these actions in an effort to intimidate her and to dissuade her from pursuing her discrimination complaints against the Parks Police.

In another section of the Amended Complaint that could benefit from additional contextual allegations, DeSoto alleges that a Metro Nashville employee " tampered" with her workplace BlackBerry during the course of the CSC Appeal. According to testimony from Captain Taylor quoted in the Amended Complaint, Captain Taylor confiscated the BlackBerry at the time he de-commissioned DeSoto and stored it in a safe at the Parks Police office. At some later point, a Metro Nashville Information Technology Services technician, Danny Duke, attempted to access the BlackBerry by entering pincodes.[11] Apparently, a BlackBerry wipes its own data after ten unsuccessful login attempts: Duke attempted to access the BlackBerry nine times without success and changed the " baseline password" in an unsuccessful effort to gain access. In an unspecified communication thereafter, Duke represented that he had only attempted to access the BlackBerry seven times, that Captain Taylor had provided access pincodes to Duke for that purpose, and that Director Lynch had authorized Duke to change the baseline password. At some point in the CSC Appeal, the parties ascertained that there was only one access attempt remaining before the BlackBerry's data would be wiped out, leading to a deposition in which

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Captain Taylor testified that Duke had lied on all fronts: Duke had made nine access attempts (not seven), Duke was never authorized to make adjustments to the " baseline password" (presumably creating some difficulty with respect to the tenth and last access attempt by the parties), and Duke had simply lied to cover up his own incompetence. Although it is not clear precisely what transpired with respect to the final access attempt, the Amended Complaint alleges that " all information was later deleted from the phone." (¶ 21.) The Amended Complaint does not allege that Duke intended to destroy the data on the phone, that Duke was acting in any capacity other than in his role as a technician for Metro Nashville, or that Duke was aware of any improper conduct by Captain Taylor, Director Lynch, or anyone else relative to DeSoto when he attempted to access the BlackBerry.

At an unspecified point, DeSoto was " re-commissioned" without explanation, and she now works for Metro Nashville in a non-Parks Police position. DeSoto alleges that, during the pendency of her CSC Appeal, Director Lynch initially stated that he would hold the lieutenant's position open until her appeal was resolved. However, at an unspecified point, Parks Police promoted Sergeant Houston Taylor, who is older than DeSoto, to the lieutenant's position. Sergeant Taylor was a former subordinate of DeSoto's, and DeSoto claims that she was more qualified than he for the position. DeSoto alleges that the Parks Police originally intended to promote Sergeant Irvin, who is younger than DeSoto. However, DeSoto claims that, after she complained that the Parks Police had discriminated against her on the basis of age by sabotaging her opportunity for the lieutenant's position, the Parks Police promoted Sergeant Taylor (instead of Irvin) to insulate itself from liability for its earlier age discrimination against DeSoto. Aside from this sequence of events, DeSoto provides no purported examples of age discrimination.

DeSoto alleges that, after she filed her initial Complaint in this case, she discovered a large condom near where she regularly parks her vehicle, informed " the defendants" about the existence of the condom, and requested that " the defendants" cease from engaging in " such activity in the future." ( Id. ¶ 24.)

II. The Three Sets of Legal Proceedings

The underlying incidents have spawned three sets of legal proceedings.

First, DeSoto filed her CSC Appeal, which remains pending. Based on excerpts from the CSC Appeal that the parties have filed in this case, it appears that those proceedings have been contentious, including vigorous disputes about the various alleged incidents of spoliation (which are now included in DeSoto's Amended Complaint in this case) and the proper scope of discovery. In particular, it appears that, over Metro Nashville's strenuous objections (including an unsuccessful interim appeal to Chancery Court), the ALJ in the CSC Appeal has authorized broad discovery of Metro Nashville related to DeSoto's contention that her de-commissioning was the result of various forms of discrimination (essentially the same grounds alleged here), rather than for legitimate reasons.

Second, DeSoto has filed four separate lawsuits in Tennessee state court related to the investigation that Captain Taylor purportedly conducted before de-commissioning her. As this court understands DeSoto's contentions in those cases, Captain Taylor purportedly received complaints from four of DeSoto's colleagues, each of whom signed a statement alleging

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misconduct by DeSoto that precipitated Captain Taylor's investigation of DeSoto. According to DeSoto, Captain Taylor in fact prepared those statements himself beforehand, the statements were materially false, and Captain Taylor had the four " complainants" sign the statements knowing that they were false. In each state court lawsuit, DeSoto has sued one of the four complainants who signed the prepared statements, claiming that, in doing so, each defendant is liable for libel and for portraying her in a " false light." To the best of this court's knowledge, those four lawsuits remain pending.

Third, on March 25, 2014, DeSoto filed the instant lawsuit, in which she alleges state and federal claims against the Board, Metro Nashville, Director Lynch, Captain Taylor, Sergeant Irvin, Officer Moore, Officer Hooper, and ITS technician Duke. As a matter of right, DeSoto filed an Amended Complaint on April 23, 2014, asserting additional claims. In an earlier stage of this case, DeSoto declined to coordinate discovery in conjunction with her CSC Proceeding and the four state court lawsuits. ( See Docket No. 47, Initial Case Management Order No. 2 (Magistrate Judge's Order) at ¶ 3.) After the Magistrate Judge conducted the initial case management conference and the defendants filed the Rule 12 motions and motions to stay discovery, Judge Nixon recused himself and this case was reassigned to the undersigned judge. (Docket No. 48.)

III. DeSoto's Claims and the Defendants' Rule 12(b)(6) Motions

In this lawsuit, DeSoto asserts 21 causes of action, most of which are simply alleged against " all defendants" without specification. She brings the following claims: (1) First Amendment violations (actionable under § 1983) premised on her rights to freedom of speech and freedom of association, which she says were abridged because she " was prohibited from openly discussing her sexuality and associating with other homosexuals, including her same sex partner" ; (2) parallel violations of the freedom of speech and freedom of assembly protections in the Tennessee Constitution, Art. I, § § 19 and 23; (3) violations of her fundamental right to privacy (actionable under § 1983) under the Due Process Clause of the United States Constitution; (4) parallel violations of her right to privacy under the Tennessee Constitution; (5) violations of her Fourteenth Amendment right to equal protection (actionable under § 1983), premised on discrimination on the basis of sexual orientation, gender, race, and age; (6) race, sex, and age discrimination under the Tennessee Human Rights Act (" THRA" ), § § 41-21-101 et seq ; (7) race and sex discrimination under Title VII of the Civil Rights Act of 1964; (8) age discrimination under the ADEA; (9) sexual orientation discrimination under Chapter 11.20.130 of the Metro Code of Ordinances; (10) retaliation under the THRA, Title VII, and ADEA; (11) individual liability under the THRA, § 41-21-301(2), for " aiding and abetting" discriminatory practices [asserted against Sergeant Hooper, Director Lynch, and Mr. Duke] ; (12) " constructive discharge" (as a freestanding claim); (13) " constructive discharge" under § 1983; (14) conspiracy to deprive DeSoto of her constitutional rights under the First Amendment, the Fourth Amendment, the Fourteenth Amendment, and the Tennessee Constitution; (15) false imprisonment; (16) violation of the Fourth Amendment right to be free from unreasonable searches and seizures; (17) violation of her right under the Tennessee Constitution to be free from unreasonable searches and seizures; (18) intentional infliction of emotional distress; (19) negligent infliction of emotional distress; (20) violation of the Computer Fraud and Abuse Act of 1986,

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18 U.S.C. § § 1030 et seq.; and (21) violation of the Tennessee Personal and Commercial Computer Act of 2003, Tenn. Code Ann. § 39-14-604(a).

Each defendant has moved to dismiss the claims in whole or in part for failure to state a claim under Fed.R.Civ.P. 12(b)(6).[12] In response to the Rule 12(b)(6) motions, the plaintiff has filed an omnibus Response (Docket No. 77, Ex. 1), which spans 111 pages and attaches numerous materials outside the Amended Complaint, including, among other things, (1) transcripts from hearings, interviews, and depositions related to the CSC Appeal, (2) the Affidavit of Robert Weaver (relating to litigation costs incurred relative to the BlackBerry in the CSC Appeal), and (3) other evidentiary materials. In violation of basic Rule 12 practice, DeSoto's counsel references and relies upon these extra materials in an effort to defeat the pending motions. Although some of these materials provide context for the allegations, the court's ...


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