United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER, UNITED STATES DISTRICT JUDGE.
before the court are Defendant City of Fairview's Motion
to Dismiss (Docket No. 25) and Motion to Exclude Evidence
Outside the Pleadings (Docket No. 32). Plaintiffs have filed
a Response to the Motion to Dismiss (Docket No. 29), and the
City has filed a Reply (Docket No. 34). Plaintiffs have also
filed a Response (Docket No. 37) in opposition to the Motion
reasons stated herein, Defendant's Motion to Exclude
Evidence will be granted. Defendant's Motion to Dismiss
will be granted in part and denied in part. Plaintiffs'
state law claims against the City for breach of the
Settlement Agreement will be dismissed without prejudice.
court has previously described the background of this
and repeats it here as relevant to Defendant City of
Fairview. Plaintiffs are former employees of the Fairview
Police Department (“FPD”). They were both
promoted to Lieutenant in March of 2015 and had unblemished
records with the FPD. In this action, Plaintiffs allege that
they were suspended and ultimately terminated from the FPD in
violation of their constitutional rights and in retaliation
for their public disapproval of certain alleged misconduct
going on within the FPD.
assert that, at the urging of Defendant Helper, who is the
District Attorney General in Williamson County, Tennessee,
the City of Fairview placed Plaintiffs on unjustified
administrative leave and launched an unjustified
investigation into any possible criminal conduct by the
Plaintiffs. Plaintiffs aver that the investigative report,
released on July 20, 2016, found no criminal wrongdoing by
they were on administrative leave, Plaintiffs filed an action
in this court (the “Prior Action”) against the
City of Fairview and individual members of the Fairview Board
of Commissioners for violation of their constitutional
rights, violation of the Tennessee Public Protection Act,
official oppression, common law retaliation, defamation and
slander. The court issued a Temporary Restraining Order in
the Prior Action, prohibiting the City of Fairview from
terminating Plaintiffs' employment, eliminating their
positions, hiring or promoting others into the
Plaintiffs' positions, and demoting Plaintiffs or
eliminating Plaintiffs' pay, pending a preliminary
injunction hearing. (Case No. 3:16-cv-1945, Docket No. 7).
The Prior Action was ultimately dismissed with prejudice,
prior to a preliminary injunction hearing, pursuant to a
Settlement Agreement. Id. at Docket No. 25.
Plaintiffs returned to active duty with the FPD.
action, Plaintiffs contend that Helper continued to urge the
City Manager to remove Plaintiffs from their positions.
According to Plaintiffs, Helper told the City Manager she
would place a Giglio impairment on Plaintiffs with
respect to all future prosecutions, although Plaintiffs claim
there was no basis for that impairment. A Giglio
impairment of a police officer refers to a prosecutor's
decision not to allow an officer to testify at the trial of a
criminal defendant because of the officer's prior
misconduct or other grounds to attack the officer's
credibility. Giglio v. United States, 405 U.S. 150
were ultimately terminated from the FPD, allegedly because of
the Giglio impairments. Plaintiffs allege that they
were actually terminated in retaliation for their complaints
against the FPD and their filing of the Prior Action, as well
as pressure exerted by Defendant Helper. Against the City of
Fairview, Plaintiffs allege violations of their
constitutional rights, retaliation for exercise of their
constitutional rights, and breach of the Settlement Agreement
in the Prior Action.
TO EXCLUDE EVIDENCE
City of Fairview asks the court to exclude a document
included in Plaintiffs' Response to the pending Motion to
Dismiss. The court agrees that it cannot consider this
document without converting the Motion to Dismiss to a Motion
for Summary Judgment. Fed.R.Civ.P. 12(d). Plaintiffs argue
that the court may take judicial notice of the internet
publication they have included within the body of their
Response. The court declines to take judicial notice of the
apparent Facebook posting at issue.
the Motion to Exclude Evidence (Docket No. 32) will be
granted, and the court will not consider the Facebook post by
WKRN Reporter Andy Cordan, filed as part of Plaintiffs'
Response (Docket No. 29 at 16).
purposes of a motion to dismiss, the court must take all of
the factual allegations in the complaint as true.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (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 the misconduct
alleged. Id. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief. Id. at 1950. A legal conclusion couched
as a factual allegation need not be accepted as true on a
motion to dismiss, nor are recitations of the elements of a
cause of action sufficient. Fritz v. Charter Township of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
court must undertake a two-step analysis when considering
claims for violation of due process rights. Mitchell v.
Fankhauser, 375 F.3d 477, 480 (6th Cir.
2004). The first step is to determine whether a plaintiff has
a property or liberty interest entitled to due process
protection. Id. The second step is to determine what
process is due. Id.
allege that the City of Fairview deprived them of their
constitutionally-protected property interests without due
process. In order to establish deprivation of a property
interest without due process, Plaintiffs must show that they
have property interests in continued employment with the FPD
that would entitle them to due process protection. Freeze
v. City of Decherd, Tenn., 753 F.3d 661, 665
(6th Cir. 2014). Plaintiffs allege that their
constitutionally-protected property interests in their
employment arise from both state law (Tenn. Code Ann. §
38-8-301, et seq.) and the Fairview Police Policy
& Procedures Manual.
City of Fairview argues that, because Tennessee is an
“at will” employment state, Plaintiffs do not
have a property interest in continued employment. The
doctrine of employment at will is a long-standing rule in
Tennessee that recognizes the concomitant right of either the
employer or the employee to terminate the employment
relationship at any time, for good cause or no cause at all,
without being guilty of a legal wrong. Sudberry v. Royal
& Sun Alliance, 344 S.W.3d 904, 911 (Tenn. Ct. App.
2008). The law in Tennessee operates under a broad
presumption that employees are at-will and, by default, lack
a property right in their continued employment.
Freeze, 753 F.3d at 665. In order to rebut this
presumption of at-will employment, the party seeking to ...