United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
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.
on the Complaint, the relevant factual allegations (in
roughly chronological order) are as follows:
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. ¶
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).
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. ¶
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. (Id. ¶ 38).
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).
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).
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).
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).
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).
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).
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).
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).
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. ¶
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. ¶
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. §
Standard of Review
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 ...