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Hayes v. City of Memphis

United States District Court, W.D. Tennessee, Western Division

March 2, 2015

ANTHONY-DECARLO HAYES, SR., Plaintiff,
v.
CITY OF MEMPHIS, et al., Defendants.

REPORT AND RECOMMENDATION

TU M. PHAM, Magistrate Judge.

Plaintiff Anthony-DeCarlo Hayes, Sr., filed a pro se complaint against the City of Memphis and twenty-five other defendants on March 29, 2012, along with an application to proceed in forma pauperis . (ECF Nos. 1 & 2.) The court granted Hayes's application to proceed in forma pauperis . (ECF No. 3.) Hayes then filed an amended complaint on December 17, 2012. (ECF No. 4.) Pursuant to the Order Referring Cases (ECF No. 5), this case was referred to the United States Magistrate Judge for all pretrial matters for determination and/or report and recommendation. For the reasons below, it is recommended that all federal claims be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B), the court decline jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3), and the state law claims be dismissed without prejudice.[1]

I. PROPOSED FINDINGS OF FACT

Hayes brings this action alleging federal and state law claims in connection with his former employment with the City of Memphis ("City"). Hayes, a resident of Memphis, Tennessee, purports to bring this action "In Propria Persona, an Indigenous American Indian, [Roll] 3252, Archive1242490" and "files this action pursuant to the organic Constitution for the United States of America."[2] (Am. Compl. ¶ 1.) The amended complaint does not identify exactly what job Hayes held with the City, but it appears that he worked in some capacity within the City's Community Enhancement Division ("CED"). He alleges "retaliation, deprivation, and racial discrimination, defamation, as well [as] wrongful termination for filing EEOC charges for Workplace Violence' and for injuncti[ve] relief against Defendants, for violations of assault and intimidation...." (Id.) He further alleges that "Defendants conspired to deprive[] the Plaintiff of his civil rights under color of law and constructively retaliat[ed], executed reprisals, committed retribution, and discharged the Plaintiff for filing previous EEO/EEOC charges of Discrimination and whistle blowing about federal embezzlements of funding misused by department heads and the fact of hiring unqualified individuals for the position of Zone Manager with the Code Enforcement Division.... Defendant(s) Mayor [and] police officer's actions are tantamount to nothing less than Criminal Treason against the United States Constitution and the People of the United States." (Id.) Hayes names a total of twenty-six defendants in his amended complaint. The defendants include: (1) the City; (2) City Mayor A C Wharton, Jr.; (3) Johnie McKay, the Director of the CED; (4) Onzie Horne, the Deputy Director of the CED; (5) Otis Tidwell, Clarence Coleman, Bill Lewis, and Joseph Norman, who are managers with the CED; (6) Eric Muhummad, James Jackson, Burnie Mitchell, William Lewis, William Mashburn, Barry Gray, and Tammy Walker, who are inspectors with the CED; (7) Gerald Thornton, an attorney for the City's Labor Relations Division; (8) the American Federation of State, County, and Municipal Employees ("AFSCME") Local 1733; (9) Harvier Smith and Chad Johnson, who are union representatives for AFSCME Local 1733; (10) Gerald W. McEntee, AFSCME President; (11) members of the Civil Service Board, including John Horne, Carnita McKeithen, and Danny Schaffzin; (12) Alpha Reporting Corporation ("Alpha"), a private court reporting agency; (13) Cathy May, Alpha's owner; and (14) Cheryl Abbott, Cindy Swords, and Cora Lewis, who are court reporters with Alpha. Hayes asserts causes of action for violations of Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act ("ADA"); 42 U.S.C. §§ 1981, 1983, 1985, and 1986; 18 U.S.C. §§ 241, 242, and 1513; and various state laws, including defamation, assault, and retaliatory discharge. (Am. Compl. ¶¶ 56-72.) Although the allegations and events contained in the amended complaint are difficult to follow, Hayes appears to allege that he was physically assaulted by various co-workers while on the job, was subjected to a hostile work environment, and then was wrongfully terminated. Specifically, he alleges as follows:

Over a three year period, Hayes was "subjected to Workplace violence and had written memos and told supervisors, union reps. and filed grievances, EEO/EEOC complaints lawsuits with no assistance[.]" (Am. Compl. ¶ 30.) On March 29, 2011, Inspector James Jackson struck Hayes on his neck and back for no apparent reason. Hayes informed CED Managers Bill Lewis and Clarence Coleman of the assault. (Id.) Hayes requested medical attention and filed a complaint for an on-the-job injury, but Lewis changed that request from an on-the-job injury to a request for a sick day. (Am. Compl. ¶ 31.)

Hayes was treated for three weeks for spine injuries. He returned to work to find that his request for an on-the-job injury was denied by CED Manager Otis Tidwell and that he was required to use his sick leave for his time off due to the injury. (Am. Compl. ¶ 32.) Tidwell, as well as others, had previously assaulted Hayes at work on multiple occasions in January and June 2010. (Am. Compl. ¶ 33.) Hayes reported these assaults, but nothing was done. (Id.)

On July 18, 2011, CED Inspector Charles Brown "came to Plaintiff attempting to horseplay" and was told by Hayes to stop. Hayes reported this incident to Lewis. (Id.) On July 20, 2011, Inspector Eric Muhammad made a verbal threat toward Hayes. (Am. Compl. ¶¶ 34-35.) Hayes continued to inform his managers, Coleman and Lewis, about his mistreatment, but no investigation was conducted. (Am. Compl. ¶ 36.)

On October 19, 2011, CED Inspector Burnie Mitchell struck Hayes on his back and neck in the presence of other CED Inspectors after a work meeting, for no apparent reason. Although Hayes informed Director Johnie McKay of the assault, no action was taken against Mitchell. (Am. Compl. ¶ 37.) Hayes then called 911, and when an officer arrived and attempted to investigate the assault, McKay told the officer that "no one saw anything." (Am. Compl. ¶ 38.)

Sometime later in October 2011, Hayes sustained another on-the-job injury. He went to the emergency room and was given two weeks of limited duty, during which time he was ordered not to drive a vehicle. (Am. Compl. ¶ 39.) However, on October 24, 2011, CED Manager Joseph Norman ordered Hayes to drive a vehicle to a meeting, even though Hayes complained of drowsiness from taking medication. (Am. Compl. ¶ 40.)

On November 16, 2011, five unidentified Memphis Police Department officers approached Hayes's residence, drew their weapons, and left a letter on his door. The letter informed Hayes that he had been suspended indefinitely with pay pending an investigation and that he was barred from being on any City property. (Am. Compl. ¶ 42.) On that same date, Hayes contacted his union representative, Havier Smith, and informed him about the situation. (Am. Compl. ¶ 43.) In December 2011, Hayes was informed by letter that a hearing had been held and that a decision was made to terminate his employment for "violating the City's personnel manual." (Am. Compl. ¶ 44.) Hayes had not been given proper notice about the hearing. (Id.) Smith told Hayes that the City "did not properly notify you because they are planning to lock you up for trespassing on city property." (Id.) Hayes was never afforded an opportunity "to address any suspension nor termination or any rebuttal to any action taken by the City of Memphis." (Am. Compl. ¶ 45.)

On January 3, 2012, Hayes was terminated and advised by Smith to see another union representative, Chad Johnson, to file a grievance. Hayes did not receive the third step of his grievance procedure as required by the memorandum of understanding between the City, the City's employees, and the union. (Am. Compl. ¶ 46.) Union representatives "seem[ed] uninterested" in filing for arbitration on Hayes's behalf, allegedly because Hayes had previously filed a civil action against the union and an unidentified union official. (Am. Compl. ¶ 47.)

Hayes alleges the City deliberately failed to provide him with notice of his appeal rights. (Am. Compl. ¶ 48.) Harvier Smith and Labor Relation's attorney Gerald Thornton "coordinated" to thwart Hayes's attempts to file grievances regarding his termination. (Id.) Smith later told Hayes that Thornton "initiated this whole matter because he had dealt with Mr. Hayes in [an] earlier matter when he was a police officer." (Id.)

Between February 15 and March 20, 2012, Hayes sent letters to Shelley Seeberg, Smith, and Gerald McEntee requesting assistance, but received no help. (Am. Compl. ¶ 49.) Later, Hayes was told he had ten days to appeal the decision of the City's termination. He sent a letter requesting a civil service appeal. (Id.) On May 11, 2012, Hayes was given an opportunity to be heard by the Civil Service Board at a preliminary hearing. (Am. Compl. ¶ 50.) The Civil Service Board found that the City had not afforded Hayes due process and "decided it would hear the full matter" on July 20, 2012. (Id.) At the July 20 hearing, Tammy Walker, William Mashburn, William Lewis, and Barry Gray provided testimony that was allegedly false and defamatory. (Am. Compl. ¶ 51.) According to Hayes, the Civil Service Board "failed to allow the plaintiff the right to rebut any statement made against him and entered the statements in the civil service record as evidence." (Am. Compl. ¶ 52.) The Board issued its decision on October 30, 2012, upholding Hayes's termination. (Id.)

On November 1, 2012, Hayes requested a copy of the record of the hearing, but was informed that the Board had rendered its decision based upon the members' notes. (Am. Compl. ¶ 53.) On November 2, 2012, Hayes spoke to Cheryl Abbott of Alpha to request the record, and was told he could get the transcript in three weeks. (Am. Compl. ¶ 54.) After three weeks passed, Abbott sent Hayes the "wrong information" in an attempt to "doctor up the record." (Am. Compl. ¶ 55.) Hayes discovered that Alpha employees Cindy Swords and Cora Lewis were responsible for transcribing the hearings. (Id.) Hayes "had to file his request for appeal before 60 days in which he did not have ...


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