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Monce v. Marshall County Board of Education

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

April 2, 2018

SHERRY MONCE, Plaintiff,
MARSHALL COUNTY BOARD OF EDUCATION and JACKIE ABERNATHY, Director of Marshall County Schools, Defendants.



         Pending before the Court is Defendants' “Motion for Partial Summary Judgment as to Marshall County Board of Education and Summary Judgment as to Jackie Abernathy” (Doc. No. 38), to which Sherry Monce has responded in opposition (Doc. No. 45), and Defendants have replied (Doc. No. 51). For the reasons set forth below, the Motion will be granted in part and denied in part.

         I. Factual Background

         The parties have filed their own statements of undisputed facts.[1] Collectively, those statements, and the record before the Court, suggest the following to be the relevant facts:

         Monce has been a teacher for more than two decades. For the last sixteen years, she has taught at Forrest School in Marshall County, Tennessee. Abernathy served as the Marshall County Director of Schools during the period relevant to this lawsuit.

         In December 2012, Monce was diagnosed with breast cancer, and underwent a double mastectomy in March of 2013. That summer, she underwent chemotherapy and radiation treatment. In October 2013, Monce had a hysterectomy.[2]

         Defendants claim that Monce was not in her designated area for Fun Day activities on May 21, 2014, and was on her computer instead of supervising students. That same evening, Monce climbed on top of the press box at the Middle Tennessee Christian School to watch a Forrest School baseball game. Monce claims that she had not been instructed where she needed to be for the “Fun Day” activities and that, once she arrived at the school, she supervised students, and assisted one student with an online computer program. Monce concedes that she climbed on top of the press box while off-duty, but claims she did so because she was “suffering from a migraine, ” and decided to watch her son play baseball from that vantage point. (DSOF ¶ 7). Regardless, Monce received an “Oral Reprimand” (memorialized in writing on May 23, 2014) that stated both incidents were unprofessional and reflected poorly on the school. (Pf. Exh. 8).

         On August 22, 2014, Monce underwent breast reconstruction surgery. After surgery, she was out of school for the next four weeks.

         In late November 2014, Monce was accidentally shot in the head by her husband while the two were bird hunting. On February 4, 2015 she asked the school trainer to use an X-acto knife Monce had in her possession to cut into her scalp to see if it was infected. When the trainer refused, a student, who was sitting nearby, volunteered. Monce allowed the student to make the incision.

         As a result, Monce received a “Letter of Reprimand - Unprofessional Conduct” dated February 20, 2015 from John McClaran, the school principal, that recounted the X-acto knife incident and expressed concerns that Monce had behaved unprofessionally in the past. This included leaving the school without permission for two hours on April 2, 2014, climbing on top of the press box on May 21, 2014, and allowing her 14-year old son to drive her home after the ball game, even though she was “heavily medicated.” (Pf. Exh. 11).[3] The letter was intended “to underscore the importance of complying with Marshall County School's policies, rules and regulations, ” and “to serve as a written reprimand.” (Id.). Additionally, Monce was suspended without pay so that the school could investigate her “unprofessional conduct.” (Id.).

         On February 24, 2015, Monce met with Principal McClaran and Robby Reasonover, another administrator. This meeting resulted in a Corrective Plan for Plaintiff to follow. Among other things, the Plan expected Monce to (1) be present to instruct and supervise students; (2) not be on her computer, except at lunch or for planning purposes; (3) notify the office when she left the premises and (4) dress and act professionally.

         Defendants claim that Plaintiff left her class unsupervised on April 21, 2015, during which time a student videotaped another student climbing on top of a basketball goal. Monce claims that, at the time the incident occurred, she was in the equipment room getting supplies for class. (DSOF ¶ 16). Regardless, Monce received another reprimand because she had not followed the Corrective Action Plan, and was not present and supervising students during an assigned class.

         During an April 22, 2015 meeting regarding the climbing incident, Abernathy claims that she smelled alcohol on Monce and suggested she take a drug test. Monce claims she does not drink during the day, Abernathy never made any such allegations, and the accusation is not documented in any school record. (Id. ¶¶ 19, 20). Monce also claims Abernathy demanded that she take a drug test, or face a 5-day suspension. (Id. ¶ 18).

         The Marshall County Board of Education has a Policy intended to maintain a drug-free workplace. It prohibits the possession or use of alcohol or narcotic drugs on any school premises of vehicle, or at school sponsored activities or functions. (Pf. Exh. 14). The Board also has a policy that requires “trained supervisors” to observe and document “reasonable suspicion” that an employee is using drugs, is in an “[a]pparent physical state of impairment of motor functions, ” or exhibits “[m]arked changes in personal behavior not attributed to other factors.” (Id.). Under the policy, if any of those things are observed, an “employee may be required to submit to substance screening[.]” (Id.).

         Monce submitted to a drug test after consultation with a union representative. The result showed the presence of alcohol metabolites. Monce does not deny that those were the results, but claims that the test used - Ethyl Glucuronide (EtG) testing, commonly known as the “80 hour” test, detects EtG metabolites in urine up to 3 to 4 days after alcohol consumption, and therefore “has no value in ascertaining whether an individual is actually under the influence of alcohol at the time of testing or whether an employee used alcohol while on duty.” (DSOF ¶ 26). Furthermore, the drug tests also showed the presence of prescription drugs that had been prescribed to Monce.

         After receipt of the results, Abernathy notified Monce, by letter dated April 30, 2015, that she was suspended without pay for the remainder of the school year “due to violation of school board policies.” (Pf. Exh. 15). The letter also attached Monce's lab report and stated that before returning for the next school year, “you must have a 10-panel clean drug screen conducted no more than five days prior to the start of school, and submit a note from your physician stating you are not impaired.” (Id.).

         On May 29, 2015, a lawyer for the Tennessee Education Association (“TEA”) sent a letter to Abernathy on behalf of Monce stating that the suspension letter did not comply with the requirements of Tennessee's Tenure Teachers Act (“TTA”), Tenn. Code Ann. § 49-5-501, et seq., because it did not (1) specify one of the enumerated bases for suspension under the Act; (2) set forth the factual allegations supporting the suspension, or (3) provide Monce with notice of her legal rights. (Pf. Exh. 19). The letter requested proper due process notice in accordance with the Act, or, alternatively, that Monce be provided a hearing before an impartial hearing officer. (Id.) Abernathy did not respond to that letter. That same lawyer sent a letter dated August 21, 2015, stating his “understanding that if Ms. Monce passes her latest drug test, then ‘all is forgiven, '” to which there was no response from Abernathy. (Pf. Exh. 20). Monce disputes that any such agreement was reached. In fact, the failure to reach an agreement resulted in this lawsuit.

         Abernathy added additional conditions in August 2015, specially that Monce receive a note from her physician stating that she could “supervise her kids on her medicine.” (PSOF ¶ 14). Monce also claims Abernathy required that Monce bring all of her prescriptions medications to the school for inspection, a charge which Defendants dispute. (Id. ¶¶ 9-13). When Monce brought her medications to the school, McClaran took photographs of the bottles and shared them with Abernathy.[4] (Id. ¶ 9).

         Based upon the foregoing events, Monce filed suit in this Court alleging federal statutory and constitutional claims, and a state law claim. In the controlling First Amended Complaint, Monce alleges that her suspension violated the Americans With Disabilities Act (“ADA”), 42 U.S.C. §12101, et seq. She also alleges that the circumstances surrounding her two compelled drug tests, as well as the Defendants' requirement that she disclose all of her medications, violated her Fourth Amendment right to be free from unreasonable searches. Monce further contends that, by summarily suspending her for the balance of the 2014-15 school year, Defendants deprived her of her property interest in continued employment without due process of law in violation of the Fourteenth Amendment. Finally, Monce alleges that Abernathy's imposition of a suspension for the remainder of the school year violated the Tenured Teacher Act, Tenn. Code Ann. § 49-5-512(d). Defendants move for summary judgment on all claims, except for the Fourth Amendment compelled drug test claim.

         II. Standard of Review

         The standards governing summary judgment have been restated on countless occasions and, from the filings that have been submitted, are obviously understood by the parties. It suffices to note: (1) summary judgment is only appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law, Fed.R.Civ.P. 56(a); (2) the facts and inferences must be construed in favor of the nonmoving party, Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007); (3) the Court does not weigh the evidence, or judge the credibility of witnesses when ruling on the motion, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); and (4) the mere existence of a scintilla of evidence in support of the nonmoving party's position is insufficient to survive summary judgment, Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

         III. Application of Law

         A. ADA Claim

         “Congress enacted the ADA ‘with the noble purpose of providing a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities.” Melange v. City of Ctr. Line, 482 F. App'x 81, 84 (6th Cir. 2012). It prohibits covered employers from discriminating against a “qualified individual on the basis of disability with regard to hiring, advancement, training, termination, and “other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

         ADA claims can be proved using either direct or indirect evidence. Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2004). Monce attempts to establish her ADA claims utilizing both methods of proof.

         1. Direct Evidence

         Direct evidence is evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the challenged employment decision. Young v. UPS, 135 S.Ct. 1338, 1345 (2015); Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). If the plaintiff presents credible direct evidence of discrimination, then the defendant's burden is a burden of persuasion- not merely production - to show that the defendant would have made the same decision even if not motivated by discrimination. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73 (6th Cir. 2000); Jacklyn v. Shering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).

         In support of her direct evidence case, Monce writes:

The record contains direct evidence of discrimination. The Defendants knew that Monce had undergone prolonged treatments for cancer. The Defendants had before them in April 2015, when they suspended Monce, the results of Monce's first drug test. The Defendants have tried to justify that test on an unrecorded recollection by Director Abernathy over a year later that she smelled alcohol on Monce. But the test was a ten-panel drug screen. The results showed that Monce was taking valid prescription drugs. With those results in hand, the Defendants insisted not only that Monce would have to undergo another drug test in August in order to return to work, but that she also would have to provide a physician's ...

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