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Brown v. The Metropolitan Government of Nashville and Davidson County

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

May 5, 2017

MELVIN S. BROWN, JR., Plaintiff,
v.
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Defendant.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          JON P. MCCALLA, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Metropolitan Government of Nashville and Davidson County's Motion for Summary Judgment, filed on December 30, 2016. (ECF No. 19.) For the reasons stated below, the Court GRANTS the Motion for Summary Judgment.

         I. BACKGROUND

         Plaintiff Melvin S. Brown, Jr. was hired by the Metro Nashville Police Department (MNPD) in 1984 and promoted to the rank of Lieutenant on July 2, 1998. (ECF No. 1 at PageID 2; ECF No. 20 at PageID 176; ECF No. 31 at PageID 552.) In January 2014, Lieutenant Brown was working as a Shift Commander for the Central Patrol Precinct. (ECF No. 19-1 at PageID 66; ECF No. 20 at PageID 176.) Lieutenant Brown received a use of force report (MNPD 108 Form) and associated video documenting an arrest performed by Officer Byron DeWalt in December 2013. (ECF No. 19-1 at PageID 78; ECF No. 20 at PageID 177; ECF No. 31 at PageID 551; ECF No. 30-5 at PageID 377.) The report had already been signed and approved by Sergeant Brian Brown, who had been promoted to the rank of Sergeant approximately a year and a half prior to the incident. (ECF No. 1 at PageID 2; ECF No. 20 at PageID 178; ECF No. 31 at PageID 551-52.) After signing and approving the report, Sergeant Brown had submitted the report to Lieutenant Warren McConkey for review and approval. (ECF No. 19-1 at PageID 78; ECF No. 20 at PageID 178.) Lieutenant McConkey had reviewed the report, but had been transferred to a different precinct before he was able to sign the report as an approving supervisor. (ECF No. 20 at PageID 178; ECF No. 31 at PageID 552; ECF No. 30-5 at PageID 377.) As a result, the responsibility fell on Lieutenant Brown to review the use of force report. (ECF No. 30-5 at PageID 377.)

         Lieutenant Brown, who was considered “an expert in use of force and taught use of force at the MPD Academy, ” reviewed the use of force report and the associated video. (ECF No. 31 at PageID 552; ECF No. 34 at PageID 587.) Lieutenant Brown signed the use of force report as an approving supervisor without making any comments or notations of any concerns about the use of force. (ECF No. 31 at PageID 551, 552-53.) Lieutenant Brown then submitted the use of force report to his supervisor, Commander Jason Reinbold. (ECF No. 19-1 at PageID 78; ECF No. 20 at PageID 178.) The matter was ultimately referred to the Office of Professional Accountability (OPA) within the MNPD. (ECF No. 31 at PageID 556.)

         OPA Lieutenant Jerry Hertenstein performed an investigation of the incident. (ECF No. 22 at PageID 222.) As part of his investigation, Lieutenant Hertenstein interviewed Lieutenant Brown on February 13, 2014. (ECF No. 22-1 at PageID 256.) During the interview, Lieutenant Brown provided Lieutenant Hertenstein with his curriculum vitae, “indicating that he had been qualified as an expert witness in the area of police use of force.” (ECF No. 22 at PageID 223; ECF No. 31 at PageID 558.) Lieutenant Brown also indicated that he had watched the use of force video with Officer DeWalt's attorney after receiving a notice of complaint from the OPA, and questioned Lieutenant Hertenstein regarding the identity of the individual bringing the policy violation charge against him. (ECF No. 22 at PageID 224; ECF No. 31 at PageID 559.) Lieutenant Hertenstein also interviewed Sergeant Brian Brown and Lieutenant McConkey. (ECF No. 22-1 at PageIDs 231, 261.) At the conclusion of his investigation, Lieutenant Hertenstein determined that Officer DeWalt had clearly violated the MNPD use of force policy. (ECF No. 22 at PageIDs 222-23.) Lieutenant Hertenstein also recommended that Sergeant Brown and Lieutenant Brown be charged with violations of MNPD policy for approving the use of force, and that Lieutenant McConkey be charged with a violation of MNPD policy for failing to note “any concerns with the use of force during his preliminary review, and [failing to bring] the very concerning video to anyone's attention up the chain of command.” (ECF No. 22 at PageID 223; ECF No. 31 at PageID 557.) Lieutenant Hertenstein recommended that the policy violations be addressed through the individuals' respective chains of command. (ECF No. 31 at PageID 556.)

         Chief Steve Anderson listened to the investigative interviews and reviewed the OPA investigative report. (ECF No. 24 at PageID 294; ECF No. 31 at PageID 558; ECF No. 34 at PageID 582.) Chief Anderson believed that Lieutenant Brown had exercised “poor judgment in approving and improper use of force, act[ed] in a cavalier and disrespectful manner during the investigation process, and [was continuing to] refus[e] to accept any responsibility for his decision.” (ECF No. 24 at PageID 296.) Lieutenant Brown was transferred to the Warrants Division as previously planned on March 1, 2014. (ECF No. 31 at PageID 553; ECF No. 30-5 at PageID 376.) Due to his concerns regarding Lieutenant Brown's actions in approving the use of force, Chief Anderson placed restrictions on Lieutenant Brown while he was in the Warrants Division: Lieutenant Brown could not drive an MNPD vehicle, could not perform any work in the fields, could not leave the office without permission, could not perform any off-duty work, could not perform any extra jobs, and could not work overtime on extra events. (ECF No. 34 at PageID 583-84; ECF No. 24 at PageID 295.) Due to these restrictions, Lieutenant Brown felt unable to perform his job and was concerned about a loss of income. (ECF No. 34 at PageID 590.) Lieutenant Brown does not recall Chief Anderson mentioning his age while placing work restrictions on him. (ECF No. 31 at PageID 554.) Lieutenant Brown's base pay remained the same under these restrictions, and some of the restrictions were lifted before he retired. (ECF No. 30-5 at PageIDs 388-89.) Neither Lieutenant McConkey nor Sergeant Brown received restrictions. (ECF No. 34 at PageID 584.)

         Captain Randy Hickerson, Lieutenant Brown's supervisor in the Warrants Division, recommended a three-day suspension for Lieutenant Brown, which was approved by Chief Anderson. (ECF No. 31 at PageID 557; ECF No. 24 at PageID 297.) Lieutenant Brown agreed to accept a three-day suspension if his charge was revised. (ECF No. 31 at PageID 560.) Sergeant Brown's and Lieutenant McConkey's supervisors recommended two-day suspensions, but their respective counsels negotiated the recommended suspensions to one day each. (ECF No. 31 at PageID 560.) Chief Anderson also approved Sergeant Brown and Lieutenant McConkey's suspensions. (ECF No. 34 at PageID 582.) At the time the suspensions were imposed, Sergeant Brown was 36[1] years old, Lieutenant McConkey was 44 years old, and Lieutenant Brown was 57 years old. (ECF No. 34 at PageID 582.)

         Lieutenant Brown was assigned to the Warrants Division until his retirement on July 1, 2014. (ECF No. 31 at PageID 553; ECF No. 30-5 at PageID 388.) Lieutenant Brown does not recall Captain Hickerson or the individuals who worked in the Warrants Division commenting on his age or pressuring him to retire. (ECF No. 31 at PageIDs 553-54.)

         Lieutenant Brown filed a Complaint on December 4, 2015. (ECF No. 1.) In the Complaint, Lieutenant Brown contends that Chief Anderson created a hostile work environment amounting to constructive discharge (Count I) and discriminated against him based on his age in violation of the Age Discrimination in Employment Act (Count II). (Id.; ECF No. 31 at PageIDs 554-55.) Specifically, Lieutenant Brown alleges that, in imposing the work restrictions and a three-day suspension, Chief Anderson treated him differently than Sergeant Brown and Lieutenant McConkey. (ECF No. 1; ECF No. 31 at PageIDs 554-56.)

         The case was reassigned to Judge McCalla in the Western District of Tennessee on December 9, 2016. (ECF No. 16.) Defendant filed a Motion for Summary Judgment on December 30, 2016. (ECF No. 19.) Plaintiff filed a response in opposition on February 7, 2017. (ECF No. 30.) Defendant filed a reply on February 10, 2017. (ECF No. 33.)

         II. LEGAL STANDARD

         A. Motion for Summary Judgment

         A party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is ‘material' for purposes of summary judgment if proof of that fact would establish or refute an essential element of the cause of ...


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