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Brown v. The Metropolitan Government of Nashville and Davidson, County

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

June 9, 2017




         Pending are a Motion to Dismiss (Doc. No. 8) filed by The Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”) and a Motion to Dismiss (Doc. No. 23) filed by Fred Carr (“Carr”). Both Motions have been fully briefed by the parties. (Doc. Nos. 9, 15, 17, 23, 27 and 30). For the reasons that follow, Metro's Motion will be granted, and Carr's Motion will be granted in part and denied in part.

         I. Factual Background

         Based on the Complaint, the relevant factual allegations (in roughly chronological order) are as follows:

         Kelly Brown (“Ms. Brown”), Robert Brown (“Mr. Brown”), and Shana Claud-West (“Ms. Claud-West”) are all long-term employees of the Metropolitan Nashville Public Schools (“MNPS”). During the relevant period, Ms. Brown was a counselor at Pearl-Cohn High School while Ms. Claud-West was a counselor at Hunter's Lane High School. (Doc. No. 1, Complaint ¶ 22, 34). Mr. Brown has been a schoolteacher in middle Tennessee for more than thirty years. (Id. ¶ 23).

         In April 2014, Ms. Brown and three other counselors were instructed by Sonia Stewart, the principal at Pearl-Cohn, to remove certain students from End of Course (“EOC”) classes and place them into an “A Credit Recovery Program” (“A Program”) or another elective course. (Id. ¶ 24). This was done so that the affected students (some of whom were passing their classes) would not sit for the year end tests required by Tennessee law. It was also done without notice to the children's parents and in violation of MNPS policies. (Id. ¶ 25).

         On May 21, 2014, Ms. Brown met with Principal Stewart to discuss the removal of students from EOC classes, among other things. Principal Stewart said that she was instructed by her superior to remove the students. (Id.¶ 30). On May 29, 2014, Mr. Brown reported what was taking place at Pearl-Cohn to his own principal, Steve Chauncy who, in turn, reported it up his chain of command. (Id. ¶ 31).[1]

         While serving as an academic advisor at Hunter's Lane High School, Ms. Claud-West, too, claims to have witnessed the improper removal of students from instructional courses. Specifically, in July 2013, she discovered that numerous schedules at the school had been changed and that students had been removed from EOC courses and placed in the A Program. (Id. ¶¶ 34, 35). Then, on February 17, 2014, Assistant Principal (“A.P.”) April Snodgrass removed other “students from EOC courses in order to prevent their scores from negatively impacting the school's test score statistics.” (Id. ¶ 36). When asked the next day via email from Ms. Claud-West why that was done, Snodgrass refused to answer. (Id. ¶ 37). Three weeks later, Ms. Claud-West was accused of being incompetent and insubordinate, and was placed on an “Intervention Plan” by Principal Kessler.[2] (Id. ¶ 38).

         On June 16, 2014, Ms. Claud-West sent a letter to Principal Kessler, Scott Lindsay of MNPS Employee Relations, and Dr. Ott, the Director of Human Resources for MNPS, informing them about students being pulled from EOC courses at Hunter's Lane so that test scores would be artificially inflated. Ms. Claud-West also claims that she provided Dr. Jesse Register, who at the time was the Director of Schools, with evidence demonstrating that students were being improperly removed from EOC courses. (Id. ¶¶ 42. 44).

         On July 14, 2014, Ms. Brown and Ms. Claud-West filed a complaint with the United States Department of Education regarding MNPS' testing practices and the removal of students from EOC courses. (Id. ¶ 45). A few months later, on October 14, 2014, Ms. Brown emailed Representative Rick Womick, who is a legislative member of the Tennessee General Assembly's Joint Education Committee, outlining MNPS's alleged wrongdoing and requesting his assistance. This was followed a few weeks later by the submission of evidence gathered by both Ms. Brown and Ms. Claud-West that contained redacted information regarding individual students. Rep. Womick, in turn, contacted the Tennessee Department of Education and requested that they investigate the allegations. (Id. ¶¶ 48, 49).

         Between February and April 2015, Plaintiffs and Rep. Womick met with numerous individuals from various state agencies, including the Tennessee Comptroller, the Department of Education, and various investigators. Despite their efforts, no official investigation into the testing practices was conducted. (Id. ¶ 51).

         Thereafter, Plaintiffs were interviewed by Phil Williams, an Investigative Reporter for WTVF News Channel 5 in Nashville, Tennessee. They provided Mr. Williams with several redacted student records supporting their allegations against MNPS. (Id. ¶ 51).

         On November 2, 2015, News Channel 5 aired a report about the manipulation of school statistics through the pre-test removal (without notice to the parents) of lower performing students from EOC courses. The following day, it aired an interview with a testing expert, Bob Schaeffer of the National Center for Fair and Open Testing, who referred to MNPS' practices as “gamesmanship” designed to manipulate test scores so that the district's educational policies appeared more favorable. (Id. ¶ 55). Additional news agencies, including The Tennesseean also covered the testing scandal. (Id. ¶ 56).

         On November 12, 2015, Rep. Womick issued a notice that the House Education Committee would hear testimony regarding the “alleged manipulation of End of Course Examinations, school performance scores, and district performance scores by [MNPS].” The notice also provided that “[a]ll individuals who have information regarding the removal of students from these courses prior to end of course examinations by MNPS and who are willing to offer testimony to or testify. . . will be afforded the full protection and immunity afforded to them under TCA 8-50-116, known as the ‘Tennessee Whistle Blower Law.'” (Id. ¶ 58).

         On December 10, 2015, Plaintiffs testified before the Committee and provided student records at the Committee's request. (Id. ¶ 59). After testifying, however, they discovered that a few documents had not been properly redacted. Upon requesting return of the binders containing the documents, however, Plaintiffs were informed by Rep. Womick that the documents, whether redacted or unredacted, had been provided only to those authorized by law to view the material. (Id. ¶ ¶ 60, 61). Rep. Womick then informed MNPS that he and Rep. Brooks had received unredacted copies in a sealed envelope and they had been forwarded to Committee members and individuals in the Tennessee Department of Education. (Id. ¶ 62).

         On December 30, 2015, MNPS Chief Operating Officer Fred Carr sent letters to Plaintiffs requesting a meeting to discuss their “apparent violation of the Family Education Rights and Privacy Act (FERPA), ” with the stated reason for this meeting being to gather information regarding the access and release of “protected student data.” (Id. ¶ 63). On January 5, 2016, Plaintiffs' counsel sent Carr a letter stating that, not only did Plaintiffs have a First Amendment right to speak on matters of public concern, Rep. Womick had assured them that they would not be retaliated against in any way. (Id. ¶ 67). The next day, Plaintiffs met with Carr and other MNPS officials, at which time Carr informed Plaintiffs they would be reprimanded. He also threatened their termination. (Id. ¶ 68).

         On January 8, 2016, Rep. Womick sent a letter to MNPS in which he stated that the evidence provided to the Committee was protected by the Whistle Blower statute, and that House of Representative lawyers reviewed the material to make sure it complied with “all privacy laws, in particular” FERPA. The letter also stated that unauthorized individuals did not have access to the documents. (Id. ¶ 69).

         On January 15, 2016, Carr issued Plaintiffs written reprimands for violating FERPA, and those reprimands were placed in their permanent personnel files. (Id. ¶ 70). Carr also sent a letter to the United States Department of Education's Family Policy Compliance Office to report what he characterized as “an intentional data breach, ” claiming that a “television news report was released which showed a brief view of a student's transcript with the name visible.” (Id. ¶ 71).

         Based upon the foregoing, Plaintiffs filed a two-count Complaint. Count I, brought pursuant to 42 U.S.C. § 1983, alleges Plaintiffs' “First Amendment rights to speak out on matters of public concern were violated.” (Id. ¶ 73). Count II, brought under state law, alleges a violation of the Education Truth in Reporting and Employee Protection Act (“ETREPA”), Tenn. Code Ann. § 49-50-1401.

         II. Standard of Review

         Rule 12(b)(6) governs dismissal for failure to state a claim upon which relief can be granted and requires the Court to take all the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for ...

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