Evans v. Claiborne County Board of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at KNOXVILLE

JERTON EVANS, )

)

Plaintiff, )

) No. 3:18-CV-247

v. )

) Judge Collier

CLAIBORNE COUNTY BOARD OF ) Magistrate Judge Guyton

EDUCATION, )

)

Defendant. )

M E M O R A N D U M

Before the Court is Defendant Claiborne County Board of Education’s motion for summary

judgment on all of Plaintiff Jerton Evans’s claims in this employment discrimination case. (Doc.

18.) Plaintiff responded in opposition (Doc. 24), and Defendant replied (Doc. 26). The Court will

GRANT Defendant’s motion for summary judgment (Doc. 18) IN PART as to Plaintiff’s federal

claims and REMAND Plaintiff’s state claims to the Circuit Court for Claiborne County,

Tennessee.

I. BACKGROUND

Plaintiff, an African-American man, worked for Defendant as a teacher at Cumberland Gap

High School for two years, from 2013 to 2015. In 2015, Defendant hired Plaintiff as an English

teacher and head football coach at Claiborne High School for the 2015–2016 year. The parties

executed a “Professional Certified Contract for 2015-2016” (the “Contract”) on August 14, 2015,

for the position of “English Teacher.” (Doc. 18-6.) Plaintiff signed the Contract on his own behalf,

and Director of Schools Connie B. Holdway and Board Chairman Shannon England signed the

Contract on behalf of Defendant. Defendant was a non-tenured teacher. (Doc. 24-1 at 19.)

Plaintiff was not allowed to select any of his assistant coaches for the 2015-2016 school

year, and all of his assistant coaches were white. Defendant’s head football coach for the 2016-

2017 school year was a white male, and he was allowed to select four of his assistant coaches, all

of whom were white.

On April 15, 2016, Defendant hand-delivered a letter to Plaintiff notifying him that his

contract would not be renewed for the next year. (Doc. 24-2 at 29 [Def.’s Resp. to 2d Req. Admis.

1]; id. at 43 [Def.’s Resp. to 3rd Req. Admis. 16].) The letter was signed by Director of Schools

Holdway. (Doc. 26-3.) It contained the following text: “This letter serves as notification that you

have not been rehired in the Claiborne County School System for the 2016-2017 school year. We

do appreciate the service that you provided to advance the academic performance of our students

this past year.” (Id.)

Almost two weeks later, on April 28, 2016, Plaintiff placed a message on Facebook

requesting a meeting with parents and students about the football program.1 (Doc. 1-2 at 119

[Compl. ¶ 9].) Plaintiff describes the message as having been sent “to his students, football players,

and parents in the hopes of holding a meeting to discuss the future of the Claiborne County High

School football team.” (Id.; see also Doc. 24-1 at 10 [Pl.’s Br. ¶ 15] (purpose of meeting was “to

1 Neither party has provided the Court with a screenshot of the Facebook message. While

Defendant disclaims knowledge of the date of the message (Doc. 26 at 4 n.4), the parties do not

appear to dispute its wording. The Court considers the message as having been sent on the date

alleged by Plaintiff, who is the party in whose favor the Court should view the evidence. See

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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discuss the future of the Claiborne County High School football team”).) The message stated as

follows:

Claiborne football. I would like to meet with the parents of current and upcoming

football players about next year if I could. This meeting is very important and needs

full cooperation. Meeting will be next Tuesday at a location to be determined at

4:30. Those who will attend need to in-box me ASAP. Thank you and God bless.

(Doc. 26-1 at 5 [Holdway Dep. 100:2–13].)

The next day, April 29, 2016, a meeting took place among Plaintiff, Holdway, and at least

one other employee or representative of Defendant, Assistant Director Bob Oakes. Plaintiff was

asked to turn in his keys and not return to campus for the remaining three weeks of the school year.

(Doc. 24-2 at 11 [Pl. Decl. ¶ 15].) Plaintiff was escorted out of his classroom and the building by

two white males, a Sheriff’s Resource Officer and an Assistant Principal. (Id.)

Plaintiff characterizes the April 29 meeting as having had the legal effect of a termination

or suspension. Defendant characterizes it as a non-renewal for the next year, arguing it was not a

termination because Plaintiff was paid for the remainder of the year, and it was not a suspension

because Defendant’s policy on suspensions requires suspensions to be without pay.

Defendant asserts that Plaintiff’s non-renewal resulted from purchasing irregularities and

his having taken a student off campus to visit another student at home without obtaining the

permission of the first student’s parents. Plaintiff disputes the factual basis and the significance

of these alleged issues.

Plaintiff made an audio recording of the April 29 meeting. (Doc. 24-2 at 11 [Pl. Decl.

¶ 16].) Afterwards, he used his personal email account and hardware other than Defendant’s to

send the recording to his wife and father-in-law. (Id. at 11–12.) But because Plaintiff had

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previously used Defendant’s computer system to access his personal email account, his personal

email account remained accessible through Defendant’s network system at this point, and

Defendant obtained a copy of Plaintiff’s recording, and possibly other unspecified material,

through Defendant’s computer system.

Defendant’s Policy 1.805 governed the use of electronic mail during Plaintiff’s

employment. The policy stated in part as follows:

Because all computer hardware and software belong to the Board [Defendant], all

data including e-mail communications stored or transmitted on school system

computers can be monitored. Employees/board members have no right to privacy

with regard to such data. Confidentiality of e-mail communication cannot be

assured. E-mail correspondence may be a public record under the public records

law and may be subject to public inspection.

(Doc. 18-4.)

Defendant paid Plaintiff his teaching salary for the entire 2015–2016 academic year,

divided into twelve monthly payments. He received a single salary payment each month from

September 2015 through May 2015,2 and three salary payments in June 2016. (Doc. 18-7.)

Plaintiff also received a $4,000 coaching stipend in December 2015. (Id.)

Plaintiff originally filed this action in the Circuit Court for Claiborne County, Tennessee,

on June 14, 2016, alleging Defendant discriminated against him based on his race. Defendant

removed the case to this Court on June 21, 2018, after Plaintiff’s Third Amended Complaint added

claims under 42 U.S.C. §§ 1983 and 1986. (Doc. 1). Defendant now moves for summary judgment

on all of Plaintiff’s claims.

2 Plaintiff’s gross monthly pay was $3,083.50 every month except October 2015, when his

gross monthly pay was $2,528.47. (Doc. 18-7 at 1.)

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II. STANDARD OF REVIEW

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). 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

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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).

III. DISCUSSION

Plaintiff’s only federal causes of action are brought under 42 U.S.C. § 1983 for violation

of his rights under the First and Fourth Amendments to the U.S. Constitution.3 Because Defendant

is entitled to judgment as a matter of law on both of these causes of action, the Court will decline

to exercise supplemental jurisdiction over Plaintiff’s remaining state-law claims and will remand

this action to state court.

A. Freedom-of-Speech Claim

In order for a public employee’s speech to receive First-Amendment protections, he or she

must speak as a citizen on a matter of public concern, and not pursuant to his or her official duties.

Fox v. Traverse City Area Pub. Schs. Bd. of Educ., 605 F.3d 345, 348 (6th Cir. 2010). The critical

question in determining whether speech was made as an employee or as a citizen “is whether the

speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely

concerns those duties.” Boulton v. Swanson, 795 F.3d 526, 533–34 (6th Cir. 2015) (quoting Lane

v. Franks, 573 U.S. 228, 240 (2014)). Thus, for example, a sheriff’s deputy spoke as a citizen

3 In his proposed Fourth Amended Complaint, Plaintiff withdrew his claims under 42

U.S.C. § 1986 (Doc. 23-1), as he explained in response to Defendant’s motion for summary

judgment (Doc. 24-1 at 18.) Although Plaintiff was denied leave to file his Fourth Amended

Complaint (Doc. 30), Plaintiff has still not sought to support his § 1986 claims or respond to

Defendant’s arguments seeking their dismissal. The Court will therefore DISMISS Plaintiff’s

claims under § 1986.

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when he testified as a union member about on-the-job firearms training during a union arbitration,

despite the fact that his knowledge of the training came from his employment. Id. at 534–35. On

the other hand, most jobs carry “an inherent duty of internal communication,” such that

conversations with superiors or other representatives of the employer about job-related matters are

made in the employee’s role as an employee. Id. at 533 (collecting cases).

Defendant argues Plaintiff’s Facebook message was not protected speech because it was

made pursuant to his duties as Claiborne High School’s head football coach. Defendant points out

that the message requests a meeting with current and future football players and their parents about

the football team’s next season, a request that drew its authority solely from his position as head

football coach.

In response, Plaintiff argues he made the post “as a private citizen because he spoke out

for his concern for the foundation of the football program in Claiborne County and the direction

of the kids in the Claiborne County community.” (Doc. 24-1 at 17.) According to Plaintiff, the

overarching concern he wished to discuss during the proposed meeting was “the positive impact a

football program could have on the kids, the community, and the school,” and he wished to discuss

several specific subjects: fundraising; little league and middle school football camps; new

equipment for the football team, including a weight room, uniforms, and helmets; and mentorship

for children. (Doc. 24-2 at 10–11 [Pl. Decl. ¶ 15].)

The Court concludes Plaintiff’s Facebook post requesting a meeting was made as an

employee, not as a private citizen. Meeting with current and potential future football players and

their parents about the football program would ordinarily be within the scope of a head football

coach’s duties. See Boulton, 795 F.3d at 533–34 (critical question is whether the speech is

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ordinarily within scope of duties). So, too, would be engaging in speech to organize such a

meeting. Plaintiff’s speech in this case is analogous to the speech in internal-communication cases;

while it was not directed to other employees or representatives of his employer, it was a type of

communication that was inherent in Plaintiff’s position. See id. at 533.

Despite Plaintiff’s assertion that he called the meeting as a private citizen, Plaintiff does

not dispute that calling such a meeting was within the scope of his duties as an employee. He also

does not explain how a head football coach’s calling such a meeting could be considered outside

of the coach’s duties.

Because Plaintiff engaged in the speech in question as an employee rather than as a private

citizen, that speech does not implicate the First Amendment. Plaintiff’s § 1983 action for First-

Amendment retaliation will be DISMISSED.

B. Search-and-Seizure Claim

The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . .

against unreasonable searches” by government officials. U.S. Const. amend. IV. The Fourth

Amendment applies to a government entity acting in its capacity as an employer. City of Ontario,

Cal. v. Quon, 560 U.S. 746, 756 (2010). The proper analytical framework for such a claim is,

however, unsettled. See id. at 756–57 (discussing frameworks set out by plurality and concurrence

in O’Connor v. Ortega, 480 U.S. 709 (1987), and finding it unnecessary to resolve discrepancy.)

In general, “[a] ‘search’ occurs for purposes of the Fourth Amendment when the

government invades an individual’s reasonable expectation of privacy.” United States v.

Anderson-Bagshaw, 509 F. App’x 396, 402 (6th Cir. 2012). A reasonable expectation of privacy

exists where two requirements are met: first, the person asserting the right “must exhibit a

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subjective expectation of privacy,” and second, that expectation must be objectively reasonable.

United States v. Gooch, 499 F.3d 596, 601 (6th Cir. 2007). Regarding the objective reasonableness

of a person’s expectation of privacy, “[w]hat a person knowingly exposes to the public, even in

his own home or office, is not a subject of Fourth Amendment protection.” United States v. Mathis,

738 F.3d 719, 731 (6th Cir. 2013) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)).

Defendant argues that Plaintiff could have had no reasonable expectation of privacy in his

email account, given that he chose to log into his personal email account through Defendant’s

computer system despite Defendant’s written policy that “all data including e-mail

communications stored or transmitted on school system computers can be monitored[,] [and]

[e]mployees/board members have no right to privacy with regard to such data.” (Doc. 19 at 8–9.)

Defendant argues that by voluntarily logging into his personal account on Defendant’s system and

remaining logged in, Plaintiff had no expectation of privacy in his personal email account until

after he logged out by changing his password.

Plaintiff’s response to Defendant’s argument consists of two sentences focusing

exclusively on facts, not law. He refers to his proposed Fourth Amended Complaint for an

articulation of his claim, and he asserts that “Assistant Director Bob Oakes admits to having the

email with the recording in his possession which was in violation of the Plaintiff’s Fourth

Amendment Rights.” (Doc. 24-1 at 18.) Plaintiff does not cite any case law or respond to

Defendant’s argument that he could not have had a reasonable expectation of privacy in his

personal email account under the facts presented here.

“[E]mail requires strong protection under the Fourth Amendment.” United States v.

Warshak, 631 F.3d 266, 286 (6th Cir. 2010) (analogizing Fourth-Amendment protections for mail

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to those for email). As the Supreme Court has recognized in a case concerning employer-owned

communication equipment, resolving privacy issues with regard to digital communications is a

delicate and complex question:

The judiciary risks error by elaborating too fully on the Fourth Amendment

implications of emerging technology before its role in society has become clear. . .

. . Rapid changes in the dynamics of communication and information transmission

are evident not just in the technology itself but in what society accepts as proper

behavior.

City of Ontario, 560 U.S. at 759.

Defendant has argued its written policy defeats any argument by Plaintiff of a reasonable

expectation of privacy in his personal email account. Plaintiff’s response fails to address the merits

of Defendant’s argument or in any way engage with any applicable law on this potentially complex

Fourth-Amendment question. In light of Plaintiff’s “conclusory allegations and perfunctory

statements, unaccompanied by citations or some effort at legal argument,” see United States v.

Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009), the Court finds Plaintiff has waived his

opposition to Defendant’s argument, and Defendant’s argument is well taken. Plaintiff’s § 1983

action for Fourth-Amendment retaliation will be DISMISSED.

C. State-Law Claims

Plaintiff’s remaining claims are brought under the law of the state of Tennessee. The Court

has supplemental jurisdiction over these claims because “they form part of the same case or

controversy under Article III of the United States Constitution” as the § 1983 claim over which

the Court has original jurisdiction. 28 U.S.C. § 1367(a). A district court may decline to exercise

supplemental jurisdiction over a claim in the following circumstances:

(1) the claim raises a novel or complex issue of State law,

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(2) the claim substantially predominates over the claim or claims over which

the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

28 U.S.C. § 1367(c). In making this discretionary decision, a district court should weigh “the

values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 350 (1988).

Here, the Court will dismiss all claims over which it has original jurisdiction. When all

federal claims are dismissed, the preferred disposition of state-law claims that came into federal

court on removal is remand to state court. Gamel v. City of Cincinnati, 625 F.3d 949, 952 (6th

Cir. 2010) (citing Musson Theatrical, Inc . v. Fed. Express Corp., 89 F.3d 1244, 1254–55 (6th Cir.

1996). Because the Court will grant summary judgment to Defendant on Plaintiff’s federal claims

the Court will REMAND Plaintiff’s remaining claims back to state court.

IV. CONCLUSION

The Court will GRANT Defendant’s motion for summary judgment (Doc. 18) IN PART

as to Plaintiff’s federal claims. Plaintiff’s claims under 42 U.S.C. §§ 1983 and 1986 will be

DISMISSED. The Case will be REMANDED to the Circuit Court for Claiborne County.

An appropriate order will enter.

/s/____________________________

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE

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