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Smallwood v. Cocke County Government

United States District Court, E.D. Tennessee, Greenville

February 7, 2018




         Before the Court is Defendant’s motion for summary judgment (Doc. 10) on Plaintiff’s claims under 42 U.S.C. § 1983, both the United States and Tennessee constitutions, and Tennessee’s retaliatory discharge statute. (Doc. 1.) Plaintiff responded in opposition (Doc. 16), and Defendant replied (Doc. 17). For the reasons that follow, the Court will GRANT Defendant’s motion for summary judgment (Doc. 10).

         I. BACKGROUND

         Crystal Ottinger (“Ottinger”) took office as Mayor of Cocke County, Tennessee on September 1, 2014. (Doc. 10-4, p. 1.) Though many county employees had not supported her mayoral candidacy, Ottinger did not terminate any county employees upon taking office. At this time, Plaintiff William Smallwood was already acting Fire Chief of the Cocke County Fire Department. (Id.) He had been appointed to the position when the former county mayor had taken office.

         A couple of years into Ottinger’s term, tension grew between two county entities-the Cocke County Emergency Management Agency (“EMA”) and the Cocke County Fire Department (the “Fire Department”). The two agencies share office space, with the EMA office sitting above a secondary bay in the fire hall where firetrucks are kept. In August 2016, the EMA Director, Kevin Benton (“Benton”) first complained to Ottinger that he and EMA Captain Julie Brooks (“Brooks”) were being harassed by Clayton “Skip” Ellison (“Ellison”)-Fire Department Captain and County Commissioner-and other firefighters. (Id.) After these initial complaints, Benton further reported that on January 3, 2017, members of the Fire Department repeatedly operated a firetruck siren, blew the horn, and ran the engine for twenty minutes while the fire truck remained in a bay of the fire hall-sending noxious fumes upward into the EMA office space. (Id.) Later, Benton complained that on January 27, 2017, Ellison grabbed his (Ellison’s) crotch and made sexually suggestive motions towards Benton, while Plaintiff stood next to Ellison. (Id.)

         On February 1, 2017, Benton filed an administrative charge with the Equal Employment Opportunity Commission (“EEOC”) against Cocke County, alleging harassment and retaliation. (Doc. 10-4, Ex. A.) As mayor, Ottinger was notified of the EEOC complaint and was advised that any retaliation for filing the charge was prohibited. (Doc. 10-4, p. 2.) Ottinger subsequently met with Plaintiff on February 7, 2017. Ottinger informed Plaintiff of the EEOC complaint and ordered him not to retaliate against Benton for filing the charge. Plaintiff agreed not to do so.

         A month later, Ottinger again met with Benton to discuss an incident that had occurred on March 1, 2017. (Doc. 10-4, pp. 3–4.) Benton was in his upstairs office when he noticed Ellison had climbed the stairs to use a second-floor bathroom, despite the availability of two bathrooms downstairs. Benton decided to take out the trash to avoid interaction. As Benton was returning to his office, Ellison exited the fire hall. As the two passed each other, Ellison said, “Get you some.” Benton turned around, asked what Ellison had said, and informed Ellison he was recording him. Ellison grew angry, and Plaintiff and another fireman went outside to dispel the altercation. Eventually, just Benton and Plaintiff were left discussing the ongoing conflict between Benton and Ellison when Plaintiff referenced Benton’s EEOC complaint. He asked Benton, “[W]hy did you go down [to the EEOC] and make us look like a bunch of a**holes then?” This led to the following exchange:

Plaintiff: And all this bullsh** is over the budget. It all started… Benton: No.
Plaintiff: …over the damn budget. Ever [sic] bit of sexual harassment, all this bullsh** just boils right around the damn budget.
Benton: Right.
Plaintiff: He cut our budget the same as he did yours… Benton: No.
Plaintiff: …and here you are, out here raising hell, and madder… Benton: No.
Plaintiff: …than hell at everybody.

(Doc. 10-2.)

         Ottinger concluded that this conversation was retaliation against Benton for filing the EEOC complaint, which she had specifically admonished Plaintiff not to do. She decided to take corrective action and met with Plaintiff on March 7, 2017. (Doc. 10-4, p. 4.) At this meeting, Ottinger gave Plaintiff a choice among four options: (1) he could agree to a written reprimand with knowledge that any other infraction would result in his termination; (2) he could resign as Fire Chief and accept another position within the Fire Department; (3) he could resign as Fire Chief without taking another position; or (4) if he chose none of the above, he would be terminated. Plaintiff refused to accept any of the options and was fired on the spot.

         The following day, Ottinger issued a press release announcing Plaintiff’s termination. (Doc. 10-4, p. 19.) In it, Ottinger recounted how she had discussed with Plaintiff in early February an EEOC complaint that had been filed against Cocke County, alleging harassment by some in the Fire Department. She had specifically warned Plaintiff there were to be no further incidents of harassment under his command and no retaliation against the complainant for filing the charge. Upon later learning of two subsequent incidents she considered retaliatory, Ottinger gave Plaintiff the choice between various forms of corrective action. The press release then concluded with Plaintiff’s refusal to accept any of the remedial options given him and his termination as a result.

         Following his termination, Plaintiff, through his attorney, requested that he be either reinstated as Fire Chief or given a hearing before the Fire Department’s Civil Service Board (the “CSB”). (Doc. 16-1.) The CSB had been created on June 20, 2016, by vote of the Cocke County Commission to oversee the administration of the “fire civil service.” The CSB purported to create a “classified service,” to which the Fire Chief belonged, and limited terminations of classified service members to for-cause dismissals and afforded those terminated the right to an investigatory hearing. (Doc. 16-1.) However, the validity of the CSB was called into question at some point before Plaintiff’s termination. In response, the County Attorney for Cocke County penned a letter to the members of the county legislative body, concluding that existing Tennessee law expressly forbade the creation of the CSB. (Doc. 10-4, Ex. K.) Plaintiff was denied a hearing before it, and he subsequently filed suit.

         Plaintiff claims, pursuant to 42 U.S.C. § 1983, that his termination deprived him of both a property and liberty interest secured by the Fourteenth Amendment to the United States Constitution. He argues the CSB’s termination procedures created a constitutionally recognized interest in continued employment and that his termination without adherence to those procedures denied him due process of law. Plaintiff also brings a First Amendment patronage dismissal claim, arguing he was improperly fired for his refusal to support Ottinger in her mayoral run two years prior to Plaintiff’s termination. Finally, Plaintiff claims he was discharged in retaliation for his refusal to fire certain county employees, in violation of Tenn. Code Ann. § 50-1-304.[1]


         Summary judgment is proper when “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). The moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). A factual dispute is “material” only if its resolution might affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court should view the evidence, including all reasonable inferences, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).

         To survive a motion for summary judgment, “the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff] is not entitled to a trial on the basis of mere allegations.” Smith v. City of Chattanooga, No. 1:08-cv-63, 2009 WL 3762961, at *2–3 (E.D. Tenn. Nov. 4, 2009) (explaining the court must determine whether “the record contains sufficient facts and admissible evidence from which a rational jury could reasonably find in favor of [the] plaintiff”). In addition, should the non-moving party fail to provide evidence to support an essential element of its case, the movant can meet its burden of demonstrating no genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

         At summary judgment, the Court’s role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). If the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court should grant summary judgment. Id. at 251–52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).


         A. Section 1983 Due Process Claims

         To state a claim under § 1983, a plaintiff must “demonstrate that a person acting under color of state law deprived [him] of rights, privileges or immunities secured by the Constitution or laws of the United States.” Barker v. Goodrich, 649 F.3d 428, 432 (6th Cir. 2011) (internal quotation marks omitted) (citing Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)). To that end, Plaintiff alleges he was not afforded due process in his termination proceedings. To establish a procedural due process violation, a plaintiff must show “(1) that [he] was deprived of a protected liberty or property interest, and (2) that such deprivation occurred without the requisite due process of law.” Pittman v. Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d 716, 729 (6th Cir. 2011). When a state seeks to terminate a protected interest, it must afford notice and an opportunity to be heard before termination. Id.

         1. Property Interest

         Plaintiff argues he had a protected property interest in his future employment as Fire Chief. A property interest in continued employment exists where a plaintiff has a “legitimate claim of entitlement” to continued employment. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Such property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006) (quoting Roth, 408 U.S. at 577). “A property interest can be created by a state statute, a formal contract, or a contract implied from the circumstances.” Blazy v. Jefferson Cty. Regional Planning Comm'n, 438 F. App'x 408, 412 (6th Cir. 2011). The Court looks to Tennessee law to determine whether Plaintiff had a property interest in continued employment. Keller v. City of Cleveland, Tenn., No. 1:13-cv-91, 2014 WL 2809662, at *4 (E.D. Tenn. 2014).

         Absent a contract to the contrary, employment in Tennessee is generally at-will. Claiborne v. Frito–Lay, Inc., 718 F. Supp. 1319, 1321 (E.D. Tenn. 1989). And in an at-will employment relationship, “either party [may] terminate [the] relationship with or without cause.” Brown v. City of Niota, Tenn., 214 F.3d 718, 723 (6th Cir. 2000). Plaintiff, however, argues that the procedural protections afforded by the CSB effectively modified his at-will status by conferring on him a property interest in continued employment. In support, Plaintiff explains how the CSB created a “classified service,” defined as “all personnel working on a full-time basis in the fire department in Cocke County and the chief of the department.” (Doc. 16-1.) According to the CSB, no member of the classified service could be “removed, suspended, or discharged except for cause and only upon written accusation.” (Id.) Any person so removed could request a hearing before the CSB and an investigation into whether such removal “was or was not made for political reasons and was or was not made in good faith for cause.” (Id.) As a member of the classified service, Plaintiff contends, these termination procedures imbued him with a property interest in continued employment as Fire Chief that could only be taken away after the prescribed hearing- a hearing which he was never afforded.

         The preliminary issue, though, is not whether the CSB termination procedures were sufficient to create a property interest, but whether the Cocke County local government had the authority to create the CSB in the first place. In Tennessee, local governments may exercise only those powers granted them by the state legislature, and any authority so granted is to be strictly construed. S. Constructors, Inc. v. Loudon Cty. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

         The problem for Plaintiff here is that no authority with respect to the creation of civil service boards was ever granted by the state legislature. In fact, the Cocke County Commission did precisely what the Tennessee General Assembly expressly forbade it from doing when it voted to create the CSB. In addressing the authority of county officials with respect to employment decisions, Tennessee law provides:

Elected or appointed officials, boards and department heads shall retain their present authority to make decisions and adopt policies that are not in conflict with this chapter, including, but not limited to, matters concerning hiring, compensation, promotions, transfers, layoffs, discipline, termination, and other employment matters for the employees of their respective offices. Nothing in this chapter shall be construed as authorization for establishing systems of seniority, tenure, or classified service, nor for creating contracts of employment or establishing the terms thereof. Nothing in this chapter or any of the policies adopted pursuant to this chapter shall be construed to affect the employment-at-will status of any county employee or otherwise create any contractual obligation on the part of the county as employer.

(Tenn. Code Ann. § 5-23-108) (emphasis added). Because Tennessee law expressly prohibits local governments from establishing systems of classified service, the Court finds the CSB was improperly formed and therefore null.[2] And as a legal nullity, the CSB had no power to confer a property interest in continued employment on Plaintiff. Furthermore, Plaintiff offers no other state or local law as a possible alternative basis for such an interest. Accordingly, the Court ...

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