McLaughlin v. Sullivan County Board of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

GREENEVILLE DIVISION

JEREMY MCLAUGHLIN, )

)

) 2:20-CV-00243-DCLC-CRW

Plaintiff,

)

)

vs.

)

)

SULLIVAN COUNTY BOARD OF

)

EDUCATION and DAVID COX,

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court to address Defendants’ Motion to Dismiss for Failure to

State a Claim [Doc. 11]. Plaintiff responded in opposition [Doc. 22]. This matter is now ripe for

resolution. For the reasons that follow, Defendants’ Motion to Dismiss [Doc. 11] is GRANTED

IN PART AND DENIED IN PART.

I. BACKGROUND

On August 13, 2020, the Sullivan County Board of Education held a meeting to discuss the

possibility of returning to in-person learning amid the COVID-19 pandemic [Doc. 8, ¶ 6]. At least

one student and numerous parents spoke at the meeting and urged the Board to return to in-person

learning [Id.]. Plaintiff Jeremy McLaughlin, a teacher at Sullivan Central High School, voiced his

concerns that a return to in-person learning would not be safe [Id. at ¶ 7]. Later, the mother of the

student who spoke at the meeting posted on Facebook, critiquing Plaintiff “for the tone of his

remarks at the Board meeting and for ‘dismissing’ her daughter” [Id. at ¶ 10]. The mother also

posted screenshots of Plaintiff’s personal Facebook posts, which she found offensive and

commented, “Hopefully this Sullivan County teacher will be losing his job. He will think twice

before being a condescending prick to my child or anyone’s child again. Go look at his

[Facebook]. I didn’t post everything.” [Id.]. Plaintiff alleges that the mother and at least three

other individuals emailed complaints about Plaintiff to David Cox, the Director of Sullivan County

Public Schools, and members of the Board to influence them to discipline or dismiss Plaintiff [Id.

at ¶ 11].

On August 18, 2020, the Human Resources Supervisor for the Sullivan County Schools

emailed Plaintiff informing him of the complaints and asking him to respond to the following two

questions relating to his Facebook posts:

Your social media activity, specifically the use of profane and sometimes vulgar

language on your Facebook timeline (PDF of Examples Attached). Specifically, as

a teacher and as a role model, do you believe utilizing that type of language sets an

appropriate example for students and/or elicits confidence in you from their

parents?

Your social media statements which seemed to both admit multiple votes during

the teacher survey, as well as seemed to encourage non-employees to vote during

the same survey. Specifically, do you believe those were appropriate actions by a

professional educator?

[Id. at ¶ 12]. Plaintiff responded and, on August 20, 2020, he received a second letter with copies

of the complaints against him [Id. at ¶ 13]. On September 3, 2020, Director Cox notified Plaintiff

that he was being suspended for three days without pay due to “unprofessional behavior while

utilizing social media” and “unprofessional attitude and poor judgment when failing to show

remorse related to such poor behavior” [Doc. 8-1, pg. 3]. Specifically, Director Cox referenced

the following activity by Plaintiff on Facebook:

shared a Twitter post mocking possible violence against a student who supports

President Trump; utilized the f-word when commenting on an NPR news story;

shared a photo of a young man in a way that seems to infer low intelligence, lying,

and selfishness; utilized the phrase “you look like you’re wearing your side chick’s

panties on your face” when mocking a man you saw at Food City; and sharing a

meme with the phrase “Go F*** Yourself” when criticizing people for not wearing

masks.

[Id. at pgs. 1–2]. Director Cox went on to explain that “[p]erhaps even more troubling were”

Plaintiff’s Facebook comments about a faculty re-opening survey, which he interpreted as an

attempt to explain to others how to vote on the survey more than once and to encourage non-faculty

members to vote [Id. at pgs. 2–3]. Plaintiff posted the link to the survey and commented, “It’s

interesting how survey gizmo uses cookies to track if you’ve responded or not. If you’re in

incognito mode, it’s like it doesn’t even know that you voted. Weird!” [Id. at pg. 2]. Director Cox

informed Plaintiff that one complaint he received stemmed from Plaintiff’s “alleged bias and/or

harassment toward certain students in classroom settings” but an investigation revealed no

evidence to substantiate such complaint [Id. at pg. 1]. Director Cox also explained that he received

complaints about Plaintiff’s speech at the August 13th Board meeting, but that he did not consider

such complaints when making his decision [Id.].

Pursuant to Tenn. Code Ann. § 49-5-512(d)(2), Plaintiff requested a conference with

Director Cox, which the parties conducted on September 22, 2020 [Doc. 8, ¶ 15].1 On September

24, 2020, Director Cox issued a decision letter pursuant to Tenn. Code Ann. § 49-5-512(d)(4)

affirming the three-day suspension [Doc. 8-2]. On October 22, 2020, Plaintiff filed a Complaint

and Petition for Writ of Certiorari in the Chancery Court for Sullivan County, Tennessee against

Director Cox and the Board seeking judicial review of the suspension pursuant to the Tennessee

Teachers’ Tenure Act, Tenn. Code Ann. § 49-5-513, and asserting a First Amendment retaliation

claim under 42 U.S.C. § 1983 [Doc. 1-1, pgs. 6–12]. Defendants removed the action to this Court

on November 18, 2020 [Doc. 1] and, on December 3, 2020, Plaintiff filed an Amended Complaint

1 Tenn. Code Ann. § 49-5-512(d) provides the procedure for disciplinary suspension of a

tenured teacher for up to three days. Under subsection (d)(2), the director must provide a

conference upon the teacher’s request at which the teacher may offer rebuttal or any other pertinent

information for the director to consider in making its disciplinary decision.

and Petition for Writ of Certiorari [Doc. 8]. Defendants now seek dismissal of Plaintiff’s claims,

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [Doc. 11].

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) requires the Court to construe the complaint in

the light most favorable to the plaintiff and accept its factual allegations as true. Meador v. Cabinet

for Human Res., 902 F.2d 474, 475 (6th Cir. 1990). To survive dismissal, the plaintiff must allege

facts that are sufficient “to raise a right to relief above the speculative level” and “to state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The court is “not bound to accept as

true a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286

(1986), and dismissal is appropriate “if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S.

69, 73 (1984). In addition to the allegations contained in the complaint, a court may consider

“matters of public record, orders, items appearing in the record of the case, and exhibits attached

to the complaint” in ruling on a 12(b)(6) motion to dismiss. Amini v. Oberlin Coll., 259 F.3d 493,

502 (6th Cir. 2001) (citation omitted).

III. ANALYSIS

A. First Amendment Retaliation

Plaintiff alleges that Defendants retaliated against him in violation of the First Amendment

by suspending him for his speech at the August 13th Board meeting and for his posts and comments

on his Facebook page. Defendants dispute Plaintiff’s First Amendment retaliation claim and assert

that Director Cox is entitled to qualified immunity. To state a claim for First Amendment

retaliation, Plaintiff, as a public employee, must demonstrate the following:

(1) that [he] was engaged in a constitutionally protected activity; (2) that the

defendant's adverse action caused [him] to suffer an injury that would likely chill a

person of ordinary firmness from continuing to engage in that activity; and (3) that

the adverse action was motivated at least in part as a response to the exercise of

[his] constitutional rights.

Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000) (citations omitted). Once Plaintiff makes

this showing, the burden shifts to Defendants “to show by a preponderance of the evidence ‘that it

would have taken the same action even in the absence of the protected conduct.’” Id. (quoting

Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999)).

1. Constitutionally Protected Activity

Plaintiff alleges two instances of protected activity—his speech at the Board meeting and

his Facebook posts and comments. For Plaintiff’s speech to be protected by the First Amendment,

he must allege facts showing that he spoke “as a citizen addressing matters of public concern[,]”

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006), and that his interest in commenting on such matters

outweighs “the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)

(“the Pickering balancing test”). The determination of whether speech constitutes protected

activity is a question of law. Leary, 228 F.3d at 737. Defendants effectively concede that Plaintiff’s

speech at the Board meeting is protected activity [Doc. 12, pg. 2]. Plaintiff spoke as a citizen about

returning to in-person learning during the COVID-19 pandemic, which is unquestionably a matter

of public concern, and Plaintiff’s interest as a citizen in speaking on this matter outweighs the

State’s interest as an employer. See Chappel v. Montgomery Cnty. Fire Prot. Dist. No. 1, 131 F.3d

564, 578 (6th Cir. 1997) (“Speech on matters directly affecting the health and safety of the public

is obviously a matter of public concern.”); see also Ellison v. Knox Cnty., 157 F. Supp. 3d 718,

722 (E.D. Tenn. 2016) (holding that matters affecting the safety of schoolchildren and faculty are

of public concern).

Defendants’ brief focuses on Plaintiff’s Facebook posts and comments. Defendants assert

that Plaintiff’s Facebook activity does not address matters of public concern because any

references to the COVID-19 pandemic are incidental to the message conveyed [Doc. 12, pg. 10].

Plaintiff argues that Defendants’ characterizations of the posts and comments are drawn from

Director Cox’s suspension letter and that the Court, at this stage, may only consider the Facebook

activity to the extent it is referenced in the Amended Complaint and must take such allegations as

true [Doc. 22, pg. 8].

In the Amended Complaint, Plaintiff alleges that his Facebook activity “consisted of

protected speech on matters of public concern, which [he] engaged in as a private citizen on his

own time when he was not working.” [Doc. 8, ¶ 20]. While Plaintiff is not required to alleged

“detailed factual allegations,” he is obligated to provide “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555.

As stated previously, the determination of whether speech constitutes protected activity is a

question of law, Leary, 228 F.3d at 737, and the Court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Plaintiff neither detailed

his Facebook posts at issue nor attached them as exhibits to his Amended Complaint.

In the absence of sufficient factual allegations in the Amended Complaint, the Court must

look to the suspension and decision letters, which are properly considered in ruling on Defendants’

motion to dismiss because they are attached as exhibits to the Amended Complaint. See Amini,

259 F.3d at 502. With respect to Plaintiff’s Facebook posts, Plaintiff contends that “a cursory

review of Director Cox’s letter shows they would be protected speech” because they “were

concerned with the COVID-19 pandemic and whether masks should be worn in public settings,

both of which were undoubtedly matters of public concern and debate throughout 2020.” [Doc.

22, pg. 9, n.4]. Nonetheless, Director Cox’s letters merely contain interpretations and

summarizations of the posts, which do not shed light on the content, form, and context, which the

Court must examine to determine whether such speech addresses a matter of public concern. See

Connick v. Myers, 461 U.S. 138, 147–48 (1983). Therefore, even construing the facts in the light

most favorable to Plaintiff, he has failed to allege sufficient facts showing that his Facebook posts

are protected.

Likewise, most of Plaintiff’s comments regarding the faculty re-opening survey are

illegible in Director Cox’s letters. The only legible comment is one in which Plaintiff informed

others that the survey website, Survey Gizmo, does not recognize how many times a person votes

if they are “in incognito mode” in their web browser. [Doc. 8-1, pg. 2; Doc. 8-2, pg. 1]. While the

initial post regarding the survey arguably addresses a matter of public concern, because the survey

relates to re-opening schools during the COVID-19 pandemic, Plaintiff’s comment, which

Defendants take issue with, does not go to the substance or adequacy of the survey itself. Rather,

Plaintiff shared the link with non-faculty members on his public Facebook post with implied

instructions on how to circumvent the system and complete the survey multiple times. This

comment “cannot be fairly considered as relating to any matter of political, social, or other concern

to the community” and, therefore, it is not protected speech. Connick, 461 U.S. at 146.

Even if Plaintiff’s comment could be construed as addressing a matter of public concern,

an application of the Pickering balancing test leads to the same conclusion that the speech is not

protected. In balancing Plaintiff’s interests as a citizen and the State’s interests as an employer,

the Court must consider “the manner, time, and place” of the speech, as well as “whether the

statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact

on close working relationships for which personal loyalty and confidence are necessary, or

impedes the performance of the speaker's duties or interferes with the regular operation of the

enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987) (citing Pickering, 391 U.S. at 570–

573). “These considerations…make apparent that the state interest element of the test focuses on

the effective functioning of the public employer's enterprise.” Id. Although Plaintiff commented

on his personal Facebook post, his comment was available to the public and related to a survey

which the school circulated solely to faculty members. Additionally, his comment went beyond

giving the general public access to the survey by instructing them on how to take the survey

multiple times. Implying non-faculty members could take the survey in “incognito mode” would

lead to inaccurate results and certainly impede the efficient functioning of the school

administration. Therefore, to the extent Plaintiff’s comment addresses a matter of public concern,

the State’s interest in promoting efficiency outweighs any interest Plaintiff had in making his

comment, and it is not protected.

Based on the foregoing, Plaintiff has failed to state a claim with respect to his Facebook

activity. Nonetheless, Plaintiff’s protected speech at the Board meeting must be examined under

the final two requisite elements—whether Defendants took adverse action and, if so, whether such

action was motivated, at least in part, by the protected conduct.

2. Adverse Action and Causation

“To establish an adverse action for First Amendment retaliation purposes, a plaintiff must

show that the action would chill or silence a person of ordinary firmness from future First

Amendment activities.” Sensabaugh v. Halliburton, 937 F.3d 621, 628 (6th Cir. 2019) (citations

omitted). For discipline to qualify as adverse action, “an employer need not deploy its full power

to discharge an employee. Adverse actions beyond those that create only de minimis negative

consequences offend the Constitution.” Kubala v. Smith, 984 F.3d 1132, 1139 (6th Cir. 2021).

Here, Director Cox suspended Plaintiff without pay for three days. Although a three-day

suspension is not an extensive amount of time, a suspension without pay creates negative

consequences beyond the de minimis level and would likely “chill or silence a person of ordinary

firmness” from speaking in the future. Sensabaugh, 937 F.3d at 628.

The final inquiry is whether there is a causal connection between the protected speech and

the adverse action. “[T]he court must determine whether the employee's speech was a substantial

or motivating factor in the employer's decision to take the adverse employment action against the

employee.” Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003). Defendants assert that they made

it clear to Plaintiff that they suspended him solely for his Facebook activity and that they did not

consider his speech at the Board meeting in their decision [Doc. 12, pg. 2]. Plaintiff alleges that

Defendants’ reliance on his Facebook activity is pretextual and that Defendants suspended him, at

least in part, because of his speech at the Board meeting [Doc. 8, ¶¶ 17–19]. “A defendant's

motivation for taking action against the plaintiff is usually a matter best suited for the jury.” Paige

v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010).

Here, construing the Amended Complaint in the light most favorable to Plaintiff, there are

sufficient factual allegations for a reasonable juror to infer that Plaintiff’s suspension was

motivated, at least in part, by his speech at the Board meeting. For instance, Plaintiff spoke at the

Board meeting on August 13, 2020 and the suspension letter from Director Cox is dated just three

weeks later, on September 3, 2020. “Temporal proximity between the protected conduct and the

adverse action by the state actor ‘alone may be significant enough to constitute indirect

evidence…to create an inference of retaliatory motive.’” Id. at 283 (quoting Muhammad v. Close,

379 F.3d 413, 417–18 (6th Cir. 2004)). Moreover, Director Cox admits that some of the

complaints he received referenced Plaintiff’s speech at the Board meeting. [Doc. 8-1, pg. 1].

Of course, on summary judgment or at trial, Defendants may rebut this allegation by

establishing that they were not motivated by Plaintiff’s speech at the Board meeting. However,

application of the burden-shifting analysis is not appropriate on a Rule 12(b)(6) motion to dismiss.

See Thomas v. Eby, 481 F.3d 434, 442 (6th Cir. 2007). Plaintiff’s claim may only be dismissed if

“it appears beyond doubt that [he] can prove no set of facts in support of his claim which would

entitle him to relief.” Guzman v. U.S. Dep't of Homeland Sec., 679 F.3d 425, 429 (6th Cir. 2012).

Based on the foregoing, Plaintiff has alleged sufficient facts to support his claim that he engaged

in protected speech that motivated Defendants, at least in part, to take adverse action against him.

Therefore, Plaintiff’s Amended Complaint states a plausible First Amendment retaliation claim

with respect to his speech at the Board meeting.

3. Qualified Immunity

Defendants assert that Director Cox is entitled to qualified immunity for his actions in

suspending Plaintiff because such actions did not violate a clearly established constitutional right

[Doc. 12, pgs. 18–21]. The doctrine of qualified immunity shields government officials from

liability for performing discretionary functions “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts examining a qualified immunity defense

“must engage in a two-step inquiry….” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 677 (6th

Cir. 2001). “First, the court must ask whether the plaintiff in the civil action has demonstrated the

violation of a constitutionally protected right.” Id. As stated above, Plaintiff has alleged sufficient

facts to state a claim, at least at the pleading stage, for First Amendment retaliation based on his

speech at the August 13th Board meeting.

Consequently, the Court “must examine ‘whether the right is so ‘clearly established’ that

a reasonable official would understand that what he is doing violates that right.’” Hardy, 260 F.3d

at 671 (quoting Brennan v. Township of Northville, 78 F.3d 1152, 1154 (6th Cir. 1996)). It is

clearly established that a public employee has the right to speak as a citizen on matters of public

concern. Rankin, 483 U.S. at 383 (“It is clearly established that a State may not discharge an

employee on a basis that infringes that employee's constitutionally protected interest in freedom

of speech.”); Connick, 461 U.S. at 142 (“For at least 15 years, it has been settled that a state cannot

condition public employment on a basis that infringes the employee's constitutionally protected

interest in freedom of expression.”); Pickering, 391 U.S. at 574 (“[A] teacher's exercise of his right

to speak on issues of public importance may not furnish the basis for his dismissal from public

employment.”). Considering Plaintiff has adequately stated a claim for violation of his First

Amendment rights and such rights were clearly established at the time of the suspension, Director

Cox’s qualified immunity defense is denied.

B. Tennessee Teachers’ Tenure Act

The Tennessee Teachers’ Tenure Act governs, in relevant part, the grounds and procedures

for dismissal or suspension of tenured teachers. See Tenn. Code. Ann. § 49-5-511. A tenured

teacher who is suspended by the director for three days or less is entitled to written notice of the

suspension, the reasons for the suspension, an explanation of the evidence supporting the decision,

and copies of documents relied upon by the director in reaching the decision. § 49-5-512(d)(1).

Within five days of receiving the suspension letter, the teacher may request a conference with the

director, which must be recorded. § 49-5-512(d)(2), (3). Within ten days of the conference, the

director must issue a written decision and. § 49-5-512(d)(4). A tenured teacher who is suspended

pursuant to these procedures may seek judicial review through a statutory writ of certiorari. § 49-

5-513(a). The Act provides that “[t]he review of the court shall be limited to the written record of

the hearing before the board and any evidence or exhibits submitted at the hearing” and additional

evidence may be admitted “to establish arbitrary or capricious action or violation of statutory or

constitutional rights by the board.” § 49-5-513(g).

The parties disagree on the applicable standard of review for Plaintiff’s petition.

Defendants take the position that a common-law writ of certiorari standard applies [Doc. 12, pg.

4]. Under this standard, “the scope of review is limited to the record to determine as a question of

law whether there is any material evidence to support the agency’s findings.” Davison v. Carr, 659

S.W.2d 361, 363 (Tenn. 1983). Plaintiff, on the other hand, contends that a de novo standard of

review applies [Doc. 22, pg. 14]. Under either standard, the Court must review the written record

of the September 22, 2020 Director’s Conference [Doc. 7-1] and Plaintiff is entitled to an

opportunity to submit additional evidence to “establish arbitrary or capricious action or violation

of statutory or constitutional rights….” § 49-5-513(g). Therefore, judicial review under the Tenure

Act is not appropriate at this stage of the proceedings.

IV. CONCLUSION

Accordingly, for the reasons stated herein, Defendants’ Motion to Dismiss [Doc. 11] is

GRANTED in part and Plaintiff’s Section 1983 First Amendment retaliation claim as it relates to

his Facebook activity is DISMISSED WITHOUT PREJUDICE. Defendants’ motion is

DENIED as to Plaintiff’s remaining First Amendment retaliation claim under Section 1983 and

the Tennessee Teachers’ Tenure Act.

SO ORDERED:

s/ Clifton L. Corker

United States District Judge