Grise v. Stewart County School System

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

GAYLA GRISE, )

)

Plaintiff, ) NO. 3:21-cv-00058

)

v. ) JUDGE RICHARDSON

)

STEWART COUNTY SCHOOL SYSTEM, )

et al., )

)

Defendants. )

MEMORANDUM OPINION

Pending before the Court is Defendants’ Motion to Dismiss. (Doc. No. 28, “Motion”).

Plaintiff has filed a Response. (Doc. No. 32). Defendants have filed a Reply. (Doc. No. 33). The

Motion is ripe for review.

For the reasons discussed, the Court will deny the Motion in part and grant it in part.

BACKGROUND1

Plaintiff, Gayla Grise, was a tenured teacher at Defendant Stewart County School System

(“SCSS”) for approximately 15 years. (Doc. No. 24 at 4). During school year 2020-21, Plaintiff

was working at SCSS as a guidance counselor. (Doc. No. 24-1 at 2). On September 14, 2020,

Defendant Ben Duncan, the Principal at SCSS, called Plaintiff into his office to discuss whether

she had changed the grades of a student. (Id. at 4). Plaintiff acknowledged she had. (Id.). The

following day, Defendant Duncan asked Plaintiff whether she had changed the grades of a different

student, and Plaintiff said yes. (Id. at 5). It is against SCSS policy to make unauthorized changes

1 The facts set forth herein are alleged in Plaintiff’s Amended Complaint (Doc. No. 24), and the

exhibits thereto, and are accepted as true for purposes of the Motion.

to students’ grades. (Doc. No. 24 at 9). Plaintiff changed student grades with the consent, and

sometimes at the discretion, of school administrators, including Defendant Duncan and Defendant

Michael Craig, the Director of Schools at SCSS. (Doc. No. 24-1 at 3).

On September 18, 2020, Defendant Duncan and Defendant Craig, informed Plaintiff that

she was being suspended without pay for 30 days. (Id. at 6). On September 21, 2020, Plaintiff

received a letter from Defendant Craig telling her she was being charged with unprofessional

conduct. (Id. at 7). The next day, Plaintiff received paperwork advising her of her rights during the

misconduct process. (Id.). A month later, Plaintiff received an updated letter from Defendant Craig

notifying her she was being charged with insubordination and conduct unbecoming to a member

of the teaching profession. (Id. at 18-19). The letter stated that Defendant Craig would be

recommending to the SCSS Board of Education (“Board”) that Plaintiff be terminated and that the

Board would meet to discuss this on October 29, 2021. (Id.).

Prior to Plaintiff’s hearing in front of the Board, Plaintiff’s attorney provided an SCSS

representative with an affidavit from Plaintiff detailing her side of the story. (Id. at 23). The SCSS

representative told Plaintiff’s counsel that the Board would receive the affidavit in advance of the

meeting (Id.). Plaintiff’s counsel was also informed they could address the Board for five minutes

at the start of the meeting, but there is no evidence to suggest they did so. (Id.). On October 29,

2020, the Board voted to terminate Plaintiff’s employment at SSCC. (Id. at 8).

Plaintiff filed a Complaint to initiate this action. (Doc. No. 1). On March 17, 2021, she

filed an Amended Complaint (Doc. No. 24), wherein Plaintiff asserts three causes of action: a

(state-law) claim for breach of contract: a (federal) claim under 42 U.S.C. § 1983 for violations of

procedural and substantive due process, and a (state-law) claim for wrongful

termination/retaliatory discharge under the Tennessee Teacher Tenure Act (“Tenure Act”), Tenn.

Code Ann. § 49-5-511. As to the federal claim, Plaintiff unsurprisingly asserts federal question

jurisdiction, and as to the two state-law claims, she asserts supplemental jurisdiction under 28

U.S.C. §1367 (as opposed to diversity jurisdiction under 28 U.S.C. §1332). After the Court granted

a joint motion to dismiss the majority of the defendants named in the Amended Complaint, the

remaining Defendants are Stewart County School System, Duncan, and Craig.

The Tenure Act provides, in relevant part:

(a)(1) No teacher shall be dismissed or suspended except as provided in this part.

(2) The causes for which a teacher may be dismissed or suspended are:

incompetence, inefficiency, neglect of duty, unprofessional conduct, and

insubordination, as defined in § 49-5-501.

(4) When charges are made to the board of education against a teacher, charging

the teacher with offenses that would justify dismissal of the teacher under the terms

of this part, the charges shall be made in writing, specifically stating the offenses

that are charged, and shall be signed by the party or parties making the charges.

(5) If, in the opinion of the board, charges are of such a nature as to warrant the

dismissal of the teacher, the director of schools shall give the teacher a written

notice of this decision, together with a copy of the charges and a copy of a form,

which shall be provided by the commissioner of education, advising the teacher as

to the teacher's legal duties, rights, and recourse under the terms of this part.

Tenn. Code. Ann. §§ 49-5-511. And it further provides, in relevant part:

(a) A tenured teacher who receives notification of charges pursuant to § 49-5-511

may, within thirty (30) days after receipt of the notice, demand a full and complete

hearing on the charges before an impartial hearing officer selected by the board, as

follows:

(1) The teacher shall give written notice to the director of schools of the teacher's

request for a hearing;

(2) The director of schools shall, within five (5) days after receipt of the request,

name an impartial hearing officer who shall be responsible for notifying the parties

of the hearing officer's assignment.

(c)(1) If the affected teacher desires to appeal from a decision rendered in whole or

in part in favor of the school system, the teacher shall first exhaust the

administrative remedy of appealing the decision to the board of education within

ten (10) working days of the hearing officer's delivery of the written findings of

fact, conclusions and decision to the affected employee.

(4) Any party dissatisfied with the decision rendered by the board shall have the

right to appeal to the chancery court in the county where the school system is

located within thirty (30) days after receipt of the dated notice of the decision of

the board.

Tenn. Code. Ann. §§ 49-5-512. Via the Motion, Defendants seek dismissal of Plaintiff’s claims

under 12(b)(1) for lack of subject-matter jurisdiction and alternatively under 12(b)(6) for failure

to state a claim upon which relief can be granted.

LEGAL STANDARD

A. Defendants’ 12(b)(1) motion to dismiss for failure to exhaust administrative remedies

Defendants invoke Rule 12(b)(1) as the basis to dismiss the Amended Complaint based on

Plaintiff’s purported failure to exhaust administrative remedies. Rule 12(b)(1) “provides for the

dismissal of an action for lack of subject matter jurisdiction.” Cartwright v. Garner, 751 F.3d 752,

759 (6th Cir. 2014). “Subject matter jurisdiction is always a threshold determination.” Am.

Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007). However, Rule 12(b)(1)

is no longer the appropriate vehicle for seeking dismissal based on the plaintiff’s purported failure

to exhaust administrative remedies. In the past, it is true, courts have utilized 12(b)(1) to analyze

arguments alleging failure to exhaust administrative remedies. See Horen v. Bd. of Educ. of Toledo

City School Dist., 568 F. Supp. 2d 850, 853 (N.D. Ohio 2008); Molina v. Board of Educ. of School

Distr. For City of Detroit, No. 07-10948, 2007 WL 4454928 at *2 (E.D. Mich. Dec. 14, 2007) (“A

Rule 12(b)(1) motion may be appropriate when a plaintiff has failed to exhaust administrative

remedies that are a prerequisite to his suit.”); McDaniel v. Potter, No. 1:05CV1037, 2006 WL

8451593 at *2 (N.D. Ohio July 3, 2006) (“[C]ourts generally interpret exhaustion of remedies as

a jurisdictional prerequisite to filing a civil action and assess the issue pursuant to Fed. R. Civ. P.

12(b)(1).”). However, recent Sixth Circuit jurisprudence suggests that requests for dismissal based

on failure to exhaust administrative remedies are not “jurisdictional bar[s], but rather []

condition[s] precedent” to appearing in federal court, and thus should be brought under 12(b)(6).

McKnight v. Gates, 282 F. App’x 394, 397 n.2 (6th Cir. 2008); see also Bushong v. Delaware City

School Dist., 851 F. App’x 541, 545 (6th Cir. 2021) (“Because the failure to exhaust is an

affirmative defense, dismissal under Rule 12(b)(6) . . . is appropriate only if the face of the

complaint shows that the plaintiff has not in fact exhausted her administrative remedies.”).2

Accordingly, the Court will evaluate Defendants’ argument based on Plaintiff’s purported failure

to exhaust administrative remedies as if it was brought under Rule 12(b)(6). This means, among

other things, that the Court’s discussion will refer to two different arguments (grounds) for

dismissal under Rule 12(b)(6): one based on Plaintiff’s purported failure to exhaust administrative

remedies (“exhaustion argument”), and another based on Plaintiff’s purported failure to state a

claim (“failure-to-state-a-claim argument”).

B. Defendants’ 12(b)(6) motion for failure to state a claim

For purposes of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the Court must take all the factual allegations in the complaint as true, as it has done

above. Ashcroft v. Iqbal, 556 U.S. 662, 678 (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

2 The Supreme Court also addressed this issue two years ago in Fort Bend Cnty, Texas v. Davis,

where the Court determined that the requirement that plaintiffs file complaints with the EEOC

before bringing Title VII claims in federal court is a claim-processing rule and not a jurisdictional

requisite. 139 S. Ct. 1843, 1849 (2019). Claim-processing rules are those requirements that “seek

to promote the orderly progress of litigation by requiring that the parties take certain procedural

steps at certain specified times.” Id. (quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)).

The Court reasoned that these can be “mandatory without being jurisdictional.” Id. at 1852.

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice. 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 679. A legal conclusion, including one couched as a factual allegation, need not be

accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of

action sufficient. Id.; Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010),

cited in Abriq v. Hall, 295 F. Supp. 3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations

that are merely consistent with the defendant’s liability do not satisfy the claimant’s burden, as

mere consistency does not establish plausibility of entitlement to relief even if it supports the

possibility of relief. Iqbal, 556 U.S. at 678.

In determining whether a complaint is sufficient under the standards of Iqbal and its

predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may

be appropriate to “begin [the] analysis by identifying the allegations in the complaint that are not

entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. This can be crucial, as no such

allegations count toward the plaintiff's goal of reaching plausibility of relief. To reiterate, such

allegations include “bare assertions,” formulaic recitation of the elements, and “conclusory” or

“bald” allegations. Id. at 681. The question is whether the remaining allegations—factual

allegations, i.e., allegations of factual matter—plausibly suggest an entitlement to relief. Id. If not,

the pleading fails to meet the standard of Fed. R. Civ. P. 8 and thus must be dismissed pursuant to

Rule 12(b)(6). Id. at 683.

When a court is presented with a Rule 12(b)(6) motion, it may consider the complaint and

any exhibits attached thereto, public records, and items appearing in the record of the case. See

Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001). Generally, a court may not consider

matters outside the pleadings in ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) unless

the motion is converted to one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d).

However, documents that are referred to in the pleadings and are integral to the claims, may be

considered without converting a motion to dismiss into one for summary judgment. Doe v. Ohio

State Univ., 219 F. Supp. 3d 645, 652-53 (S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F.

Supp. 3d 789, 791-92 (M.D. Tenn. 2018); see also Nieman v. NLO, Inc., 108 F.3d 1546, 1555 (6th

Cir. 1997) (“[D]ocuments that a defendant attaches to a motion to dismiss are considered part of

the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.”)

(quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993)).

DISCUSSION

A. Whether Plaintiff’s claims are not ripe because of failure to exhaust administrative

remedies

Although the failure-to-state-a-claim argument appears first in Defendants’ brief in support

of the Motion (Doc. No. 28-1), the Court will consider the exhaustion argument first, since it is a

“condition precedent” to plaintiff properly being in federal court. See McKnight, 282 F. App’x at

397 n.2. Defendants argue that Plaintiff’s claims should be dismissed for failure to exhaust

administrative remedies under the Tenure Act. (Doc. No. 28-1 at 12). Defendants note that Plaintiff

failed to partake in a “full and complete hearing before an impartial hearing officer” as prescribed

by the Tenure Act, Tenn. Code Ann. § 49-5-512(a). From this apparently undisputed fact,

Defendants conclude that the present case is not “ripe,” and that the Court lacks subject-matter

jurisdiction under Article III of the U.S. Constitution.3 As noted above, this argument is presented

as a challenge to subject-matter jurisdiction, when it is really a challenge to Plaintiff’s satisfaction

of claim-processing requirements that serve as conditions precedent to Plaintiff properly being in

federal Court; the Court will evaluate it as such, and will not dwell on flaws in Defendants’

argument that relate specifically to the assertion that this Court lacks subject-matter jurisdiction

under Article III.

Plaintiff responds to the exhaustion argument first by asserting that she is not required to

exhaust administrative remedies prior to bringing a claim under 42 U.S.C. § 1983 (“§ 1983

claim”). (Doc. No. 32-1 at 12-14). Then, in reference to the Tenure Act, Plaintiff argues that the

administrative remedies are optional not required, (Id. at 14-17), and that even if they were

required, it would have been futile for Plaintiff to attempt to exhaust them because the

administrative agency (the Board) is biased or has predetermined the issue. (Id. at 17-19).

Plaintiff is correct that she is not required to exhaust administrative remedies prior to filing

a § 1983 claim. The Sixth Circuit has noted many times that “[e]xhaustion of state administrative

3 For example, even if the issue were properly considered one of subject-matter jurisdiction under

Article III, the concept of ripeness would be of limited utility in the analysis. This is because the

Sixth Circuit no longer sees ripeness as a stand-alone issue and instead now views ripeness merely

as an aspect of the broader constitutional issue of whether the plaintiff has standing under Article

III of the U.S. Constitution (without which the Court lacks subject-matter jurisdiction). See Kiser

v. Reitz, 765 F.3d 601, 606-607 (6th Cir. 2014). Defendant does argue the Plaintiff lacks standing,

but bases this argument solely upon an alleged lack of “ripeness” due to Plaintiff’s purported

failure to exhaust. Defendant neglects even to cite the applicable test for standing, whereby

Plaintiff must make: “(1) an allegation of an ‘injury in fact,’ which is a concrete harm suffered by

the plaintiff that is actual or imminent, rather than conjectural or hypothetical; (2) a demonstration

of ‘causation,’ which is a fairly traceable connection between the plaintiff’s injury and the

complained-of conduct of the defendant; and (3) a demonstration of ‘redressability,’ which is a

likelihood that the requested relief will redress the alleged injury.” Friends of Tims Ford v. Tenn.

Valley Auth., 585 F.3d 955, 966 (6th Cir. 2009) (quoting Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 102–04 (1998)). Accord Saleh v. Barr, 801 F. App'x 384, 389 (6th Cir. 2020) (quoting

Friends of Tims Ford).

remedies is not a prerequisite to suit under § 1983.” Waskul v. Washtenaw County Community

Mental Health, 979 F.3d. 426, 445 (6th Cir. 2020) (citing Patsy v. Bd. of Regents of Fla., 457 U.S.

496, 516 (1982)); see also Jones v. Metzger, 456 F.2d. 854, 865 (6th Cir. 1972) (“Claims for relief

under the federal civil rights acts are not subject to exhaustion requirements.”). In one similar case,

the Eastern District of Tennessee determined that a teacher who had a property interest in an

employment position, pursuant to Tennessee state law, was not required to exhaust state

administrative or judicial remedies before proceeding in federal court on a § 1983 claim. See Davis

v. Barr, 373 F. Supp. 740, 747 (E.D. Tenn. 1973).

The issue is more complicated with respect to Plaintiff’s state-law claims. The Court will

evaluate them together since they are both grounded in the Tenure Act. Additionally, the Court

will interpret the Tenure Act consistent with the interpretation of Tennessee state courts.4 See

Barbee v. Union City Bd. of Educ., 559 F. App’x 450, 453 (6th Cir. 2014) (“The Teacher Tenure

4 A federal court exercising supplemental jurisdiction over state law claims is bound to apply the

law of the forum state to the same extent as if it were exercising its diversity jurisdiction. Super

Sulky, Inc. v. U.S. Trotting Ass'n, 174 F.3d 733, 741 (6th Cir. 1999). Thus, here the Court, like a

federal court sitting in diversity, applies state substantive law and federal procedural law. Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78–79 (1938); see also Gasperini v. Center for Humanities, Inc.,

518 U.S. 415, 427 (1996). The forum state’s substantive law to be applied includes its choice-of-

law rules because in a diversity action, the choice-of-law rules of the forum state apply. Klaxon

Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Montgomery v. Wyeth, 580 F.3d 455, 459

(6th Cir. 2009). In short, “[f]ederal courts exercising supplemental jurisdiction must apply the

forum state's choice of law rules to select the applicable state substantive law.” Osborn v. Griffin,

865 F.3d 417, 443 (6th Cir. 2017).

Under choice-of-law principles of the forum state (Tennessee), absent a choice-of-law

clause, “a contract is presumed to be made with reference to the law of the place where it was

entered into[.]” Williams v. Smith, 465 S.W.3d 150, 154 (Tenn. Ct. App. 2014). Also, under

Tennessee’s choice-of-law principals, tort actions, such as wrongful discharge claims, are

governed by the “most significant relationship” approach. See Nixon v. Waste Management, Inc.,

156 F. App’x 784, 787 (6th Cir. 2005) (citing Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn.

1992)). Thus, both of Plaintiff’s state-law claims are (unsurprisingly) governed by Tennessee law.

Act is the state statute that outlines the teacher-tenure process in Tennessee. We interpret the Act

consistent with the practice adopted by Tennessee's state courts.”).

As indicated by its quoted text above, the Tenure Act certainly provides administrative

remedies for a teacher faced with charges (including remedies in the aftermath of a termination

resulting from charges). Normally, Plaintiff would be required to exhaust her remedies under the

Tenure Act before seeking judicial review of a termination resulting from charges. The Supreme

Court of Tennessee has held that the procedural steps for dismissal of a tenured teacher, as outlined

in the Tenure Act, must be followed by school administrators seeking to fire a teacher and teachers

challenging such an action. See Lemon v. Williamson County Schools, 618 S.W.3d 1, 19 (Tenn.

2021) (“Even if school administrators are convinced that discharge is unavoidable, they must

follow the Tenure Act's procedures for discipline. Similarly, even if a tenured teacher subjected to

discipline believes discharge is inevitable, the teacher must avail himself or herself of the available

remedies along the way and follow the Act's procedures.”). Generally, a teacher is entitled to

judicial review of termination only once the Tenure Act procedures are exhausted. Id. However, a

party who does not adhere to the Tenure Act’s requirements “is not entitled to rely on its

provisions” later. Id. (finding that the teacher challenging her termination “did not act in

accordance with the Tenure Act,” so she is unable to reply on its provisions in court). From this,

it follows that defendants who did not adhere to the Tenure Act’s requirements for administrative

adjudication (and exhaustion) are not entitled to rely on (the plaintiff’s purported failure to comply

with) the Tenure Act’s requirements for administrative exhaustion as a basis to deny judicial

review of a termination decision.

Contrary to their insistent declarations, Defendants did not adhere to the Tenure Act

procedure. The Tennessee Supreme Court had made clear that there are steps that must be taken

“before a tenured teacher is dismissed.” Thompson v. Memphis City Schools Bd. of Educ., 395

S.W.3d 616, 623 (Tenn. 2012) (emphasis in original). The first step is the presentation of written

charges to the board of education, which must clearly state the offense that provides cause of the

teacher’s dismissal. Id. Then, if the board determines the charges warrant dismissal, the director

of schools shall provide written notice to the teacher outlining the decision and advising her of her

rights. Id. At that point, the teacher may request a “full, complete, and impartial hearing before the

board,” where she can appear and “plead [her] cause in person or by counsel.” Id. at 624 (citing

Tenn. Code Ann. § 49-5-512(a)(3)). In this case, the Defendants do not appear to have presented

the charges to the Board prior to informing Plaintiff, nor did Plaintiff have the opportunity to

request an impartial hearing pre-termination. Because Defendants did not follow the provisions of

the Tenure Act before terminating Plaintiff, they are not permitted to rely on it as a protection

against Plaintiff’s claims in federal court.5

All of Plaintiff’s claims will survive the Motion to the extent it is based on the exhaustion

argument. Having determined Plaintiff is not required to exhaust administrative remedies for any

of her claims, the Court does not reach the issue of whether Plaintiff is appropriately excused from

the exhaustion requirement on the grounds that exhaustion purportedly would be futile.

B. Whether Plaintiff has adequately alleged a violation of due process

Plaintiff brings this case in federal court primarily under 42 U.S.C. § 1983. Plaintiff claims

that she had a property interest in her employment as a tenured teacher and that Defendants violated

5 This Court has previously held that when defendants failed to follow their own procedures for

resolving a dispute, they cannot then rely on those procedures to claim the plaintiff has failed to

exhaust her administrative remedies under the federal Employee Retirement Income Security Act

(ERISA) and thus is barred from federal court. See Vest v. The Nissan Supplemental Executive

Retirement Plan II, No. 3:19-cv-1021, 2020 WL 7695261 at *11 (M.D. Tenn. Dec. 28, 2020). The

principle is the same, even though ERISA of course is inapplicable here and is not the source of

the principle.

her Fourteenth Amendment right to due process—both substantive and procedural—when they

fired her. (Doc. No. 24 at 10-11). Defendants argue that the termination of Plaintiff’s employment

at SCSS conformed to the procedure of the Tenure Act, which (they claim) is compliant with

constitutional due process requirements.6

Initially, the Court notes that the present action is not one for substantive due process.

Although Plaintiff’s Amended Complaint alleges “Defendants deprived Plaintiff of her rights to

procedural and substantive due process,” Plaintiff makes no arguments related to substantive due

process. (Id. at 10). “A substantive due process violation occurs when the government deprives a

person of a protectable interest, but under unconstitutional criteria.” Eli J. Richardson, Eliminating

Double Talk from the Law of Double Jeopardy, 22 Fla. St. U. L. Rev. 119, 163 (1994). Plaintiff

does not argue the “criteria” of her termination was unconstitutional, and in any event it is hard to

see how any such criteria would be successful; the criteria for her termination was that she engaged

in insubordination and conduct unbecoming to a member of the teaching profession, which are not

likely unconstitutional criteria (reasons) for terminating a public employee.

Instead, Plaintiff focuses only on the process by which the termination (based on the above-

stated criteria) was imposed, which is a textbook procedural due process claim. “Put another way,

6 As discussed above, contrary to their assertion in their Motion, Defendants did not comply with

the procedural requirements of the Tenure Act. However, the relevant determination for the Court

in evaluating a due process claim is not whether the allegedly violating official adhered to formal

procedures (as specified by, for example, state statute or agency policy), but rather whether the

constitutional process due to protect property rights was given. See Anderson v. Ohio State Univ.,

26 F. App’x 412, 414 (6th Cir. 2001) (“While [Plaintiff] argued, in part, that his due process rights

had been violated because [Defendant] violated its own rules and procedures, such allegations do

not establish a cognizable constitutional violation.”); Purisch v. Tennessee Technological

University, 76 F.3d. 1414, 1423 (6th Cir. 1996) (“[T]he issue before us is not whether [Defendants]

conformed to Tennessee Tech's official grievance procedure in reviewing the tenure decision.

Rather, the issue is whether [Plaintiff] was afforded the process due to protect his property right to

a fair tenure review process.”).

a procedural due process violation occurs when the government could deprive a person of a

protectable interest under constitutionally acceptable criteria, but fails to provide procedures

adequate for making a sufficiently accurate determination as to whether the criteria actually apply

to that person.” Id. What Plaintiff really is claiming here—or should be claiming, to have a

cognizable procedural due process claim—is that she was not provided procedures adequate for

determining whether she engaged in insubordination or conduct unbecoming a teacher so as to

warrant losing a protectible property interest, i.e., her teaching position. The Court will analyze

Plaintiff’s (procedural) due process claim accordingly.7

The Fourteenth Amendment protects an individual from deprivation of life, liberty, or

property without due process of law. Bazzetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005).

“Property interests are not created by the Constitution, ‘they are created and their dimensions are

7 Just as it cannot survive based on a substantive due process theory, Plaintiff’s § 1983 claim

likewise cannot survive based on an alleged violation of the Equal Protection Clause or the

Privileges or Immunities Clause of the Fourteenth Amendment. Despite the Equal Protection

Clause being included in the title of Plaintiff’s Second Cause of Action (“Violations of 42 U.S.C.A.

§ 1983 / The Due Process Clause and The Equal Protection Clause of the Fourteenth Amendment

to the United States Constitution”), the Amended Complaint includes no facts (or indication of a

legal theory) that would suggest a violation of the Equal Protection Clause. (Doc. No. 24 at 10).

Moreover, even if the Amended Complaint could be construed as arguably suggesting an equal

protection theory, Plaintiff has abandoned any such theory by omitting any reference to it in her

briefing; in Plaintiff’s Response to Defendants’ Motion, Plaintiff expressly states that she filed this

action “pursuant to 42 U.S.C.A. § 1983 for the deprivation of property rights without due process

of law,” and, conversely, makes no mention of equal protection (Doc. No. 32-1 at 1, 12, and 21).

“A plaintiff abandons undefended claims.” Cruz v. Capital One, N.A., 192 F. Supp. 3d 832, 838

(E.D. Mich. 2016) (citing Doe v. Bredesen, 507 F.3d 998, 1007–08 (6th Cir. 2007)); see Doe, 507

F.3d at 1007 (citing Huge v. General Motors Corp., 62 F. App'x 77, 79 (6th Cir. 2003)) (“[Plaintiff]

abandoned those claims by failing to raise them in his brief opposing the government's motion to

dismiss the complaint. Accordingly, we need not consider those claims.”). Similarly, Plaintiff’s

Amended Complaint includes a reference to Defendants depriving Plaintiff of her “privileges and

immunities.” (Doc. No. 24 at 11). However, to the extent Plaintiff intended this to be an additional

theory (under the Privileges or Immunities Clause of the Fourteenth Amendment) in support of

§ 1983 claim, she likewise abandoned such a theory. Based on these reasons and the discussion of

substantive due process above, Plaintiff’s § 1983 claim could survive only under the theory that

she suffered a violation of procedural due process.

defined by existing rules or understandings that stem from an independent source such as state

law....’ ” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (quoting Board of

Regents v. Roth, 408 U.S. 564, 577 (1972)). Once a property interest exists, the Fourteenth

Amendment protects it from being taken away arbitrarily, allowing it to be “deprived [only]

pursuant to constitutionally adequate procedures.” Kelley v. Shelby Cnty Bd. of Educ., 751 F.

App’x 650, 656 (6th Cir. 2018). As the undersigned has noted before, “[P]rocedural due process

is not a bulwark against the deprivation of liberty or property interests generally; it is instead a

safeguard against erroneous or unjustified deprivations of liberty or property interests, i.e.,

deprivations that are erroneous or unjustified under applicable criteria set by laws that are not

constitutionally infirm.” Memphis A. Phillip Randolph Inst. v. Hargett, 482 F. Supp. 3d 673, 684

(M.D. Tenn.), aff'd, 978 F.3d 378 (6th Cir. 2020).

In evaluating procedural due process claims, a court addresses the first and, if necessary,

the second of two questions: “[T]he first asks whether there exists a liberty or property interest

which has been interfered with by the State, the second examines whether the procedures attendant

upon that deprivation were constitutionally sufficient.” Bazzetta, 430 F.3d at 801 (quoting

Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). To determine whether

constitutionally adequate procedures were followed, courts apply the three-factor balancing test

outlined by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 321 (1976). In Mathews,

the Court explained that answering the question of constitutional sufficiency of procedures

involves

. . . consideration of three factors: (1) the private interest that will be affected by

the official action; (2) the risk of an erroneous deprivation of such interest through

the procedures used, and probable value, if any, of additional procedural

safeguards; and (3) the Government's interest, including the fiscal and

administrative burdens that the additional or substitute procedures would entail.

Id.

Rather than evaluating the three Mathews factors from scratch, the Court will draw on

binding precedent addressing the two overarching procedural due process questions in similar

factual scenarios. Regarding the first question—whether a property or liberty interests exists—

when public employees receive tenure, entitling them to retain their employment absent certain

misbehavior or competing circumstances, they possess a property interest in that continued

employment. See Loudermill, 470 at 538-39; Potts v. Gobles Public School District, 676 F. App’x

562, 565 (6th Cir. 2017) (noting that a property interest in continued employment is created by

Michigan’s Teachers’ Tenure Act). Here, Plaintiff was a tenured teacher at SCSS subject to the

termination limitations in the Tenure Act. Therefore, she had a cognizable property interest in her

continued employment.

The second question has also been addressed. The Sixth Circuit has held that “prior to

termination of a public employee who has a property interest in his employment, the due process

clause requires that the employee be given ‘oral or written notice of the charges against him or her,

an explanation of the employer's evidence, and an opportunity to present his or her side of the story

to the employer.’ ” Farhat v. Jopke, 370 F.3d 580, 595 (6th Cir. 2004) (quoting Buckner v. City of

Highland Park, 901 F.2d. 491, 494 (6th Cir. 1990)). In Loudermill, the Supreme Court determined

that a “root requirement” of due process is the “opportunity for a hearing before” deprivation of

any property interest. 470 U.S. at 542. However, this pre-deprivation (i.e., pre-termination) hearing

need not be a “full evidentiary hearing,” as long as it is an “initial check against mistaken

conclusions, ‘essentially, a determination of whether there are reasonable grounds to believe that

the charges against the employee are true and support the proposed action.’ ” Farhat, 370 U.S. at

585 (quoting Loudermill, 470 U.S. at 545-46). To satisfy due process, a neutral decisionmaker is

not required at the pre-termination phase, as long as there is a system of “post-termination

procedures available to the employee that includes a neutral decisionmaker.” Id. at 595-96.

In summary, to satisfy constitutional due process specifically as to the deprivation of a

public employee’s property interest in continued employment, the following procedural

requirements are necessary: notice of the charges, a pre-termination hearing of some form, and a

post-termination hearing in front of a neutral decisionmaker. See Farhat, 370 U.S. 597. Here, a

review of the Amended Complaint makes clear Plaintiff was given pre-termination notice of the

charges against her. Prior to her termination, Plaintiff received multiple letters from Defendant

Craig informing her of the charges against her, the factual basis for those charges, and the course

of discipline he was recommending.8 The Amended Complaint also makes clear that Plaintiff

received a pre-termination opportunity to be heard. On October 27, 2020, Plaintiff had the chance

to meet with Defendant Craig and explain why she had changed the students’ grades. (Doc. No.

24-1 at 7). That same day, Plaintiff’s attorney provided the school with an affidavit crafted by

Plaintiff explaining her side of the story.9 (Id. at 23). On October 27, 2020, Plaintiff’s counsel was

informed, via email, that he or his co-counsel would have the chance to address the Board for five

minutes before the October 29, 2020 meeting discussing Plaintiff’s charges. (Id.). It is not clear

from the Amended Complaint whether Plaintiff or her counsel (or both) took advantage of this

offered five minutes. While due process requires “the chance to be heard, to present one’s side of

8 On September 21, 2020, Defendant Craig sent Plaintiff a letter informing her that she was being

charged with unprofessional conduct because of the unauthorized changes she had made to

students’ grades. (Doc. No. 24-1 at 7, 14-15). On October 6, 2020, Plaintiff received another letter

from Defendant Craig again informing her she was being charged with unprofessional conduct.

(Id. at 16-17). On October 23, 2020, Plaintiff received yet another letter from Defendant Craig

informing her she was being charged with insubordination and conduct unbecoming of a member

of the teaching profession. (Id. at 18-19).

9 The opportunity to be heard can be in writing or in person. See Farhat, 370 F.3d at 585.

the story . . . the employee, being confronted with the charges against him or her and being offered

the chance to give a version of the incident, is responsible for the choice to not offer any competing

evidence.” Buckner, 901 F.2d at 495.

Plaintiff’s claim for violations of procedural due process thus hinge on whether she was

provided the opportunity for a post-termination hearing in front of a neutral decisionmaker.

Plaintiff’s Amended Complaint alleges she never received a post-termination hearing. (Doc. No.

24 at 11, 14, 15, and 16). However, the operative word is “opportunity,” which Plaintiff apparently

did actually receive. Though it is not acknowledged in the Amended Complaint, a review of the

record shows that Plaintiff filed a motion (Doc. No. 6) for a Temporary Restraining Order (“TRO”)

in this case on January 28, 2021, after this action was filed but before the Amended Complaint

was filed. The requested TRO would have enjoined Defendants from “proceeding with the

February 3, 2021 hearing regarding Plaintiff’s dismissal.” (Id. at 2). Plaintiff’s Memorandum in

support of her TRO (Doc. No. 6-1) request notes that the scheduled hearing was to be held pursuant

to Tenn. Code. Ann. § 49-5-512(a), which, as noted above, provides an impartial hearing to any

tenured teacher who was dismissed or suspended under § 49-5-511.

Although generally limited to reviewing the complaint when evaluating a motion to dismiss

under 12(b)(6), courts can consider “matters of public record, orders, items appearing in the record

of the case, and exhibits attached to the complaint.” Amini, 259 F.3d at 502. The Sixth Circuit

apparently has not addressed exactly what constitutes an “item appearing in the record,” but other

courts have determined that past filings can be considered on a 12(b)(6) motion. See Harris Custom

Builders, Inc. v. Hoffmeyer, 834 F. Supp. 256, 261 (N.D. Ill. 1993) (“When evaluating a motion to

dismiss under Fed. R. Civ. P. 12(b)(6), a court focuses on the complaint, but may also take into

account matters of public record, orders and items appearing in the record of the case . . . Pursuant

to this principle, the court . . . may consider the evidence submitted on the two prior summary

judgment motions that have been decided in this case.”); see also Trupp v. Bank of America, N.A.,

No. 3:19-CV-00479-GNS, 2020 WL 1815940, at *2-3 (W.D. Kent. Apr. 9, 2020) (finding records

from a separate bankruptcy case can be considered on a 12(b)(6) motion to dismiss without

converting to a motion for summary judgment); In re Gainey Corp., Nos.11-8038, 08-09092, 10-

80483, 2012 WL 3938521, at *13 (B.A.P. 6th Cir. 2012) (“Court filings and docket entries are

considered matters of public record which may be consulted in deciding a Rule 12(b)(6) motion.”)

(quotation omitted). In this sense, Plaintiff’s motion for a TRO and brief in support thereof (Doc.

Nos. 6 and 6-1) are items appearing in the record, not to mention “matters of public record.” Thus,

the Court can consider these documents, and they illustrate (by Plaintiff’s own hand, no less)

conclusively that Plaintiff was presented with an opportunity for a post-termination10 hearing in

front of a neutral decisionmaker and yet, as Defendants note in their Motion, “declined to exercise

this due process protection.” (Doc. No. 28-1 at 11).

Plaintiff’s Amended Complaint provides no further elaboration, saying only that she was

not provided “an opportunity to be heard and address the Board in a pre-termination and/or post-

termination hearing.” (Doc. No. 24 at 11) (emphasis added). But these allegations are contradicted

10 The Court does note that Defendants paint a confusing picture regarding when Plaintiff was

terminated. In one paragraph of their Motion, Defendants note that they “offered [Plaintiff] a post-

termination hearing,” but then in the next paragraph down, Defendants, referencing the same

hearing, explain that they “offered this hearing . . . in the pre-termination phase.” (Doc. No. 28-1

at 11). Additionally, on the same page, Defendants contend that Plaintiff was not terminated at the

October 29, 2020 Board meeting. (Id.). However, this contradicts what Defendant Craig told the

Tennessee Board of Education on November 2, 2020. In the “Final Director’s Report Regarding

Teacher/Administrator with Hold on License,” sent to the Tennessee Board of Education,

Defendant Craig noted that the “[f]inal employment action” of “termination” was taken on

“10/29/2020.” (Doc. No. 24-1 at 12). However, the Amended Complaint unequivocally states

Plaintiff was “terminated from her employment with SCSS on October 29, 2020.” (Doc. No. 24 at

8). As this is a 12(b)(6) motion, the Court will accept that factual allegation as true.

by, respectively, the Amended Complaint and the two TRO motion papers filed by Plaintiff herself.

Moreover, they arguably (considering what Plaintiff must prove to establish a procedural due

process claim as to the loss of her teaching position in particular) amount to nothing more than

“recitals of the elements of a cause of action” and “conclusory statements.” Iqbal, 556 U.S. at 663.

For all these reasons, and considering the information it properly can consider in adjudicating the

Motion, the Court concludes that Plaintiff’s § 1983 claim does not survive Defendants’ failure-to-

state-a claim argument. Accordingly, Plaintiff’s § 1983 claim (styled in the Amended Complaint

as her “second cause of action”) will be dismissed for failure to state a claim pursuant to Rule

12(b)(6).11

C. Whether Plaintiff’s remaining state-law claims should be dismissed

As noted above, Plaintiff brings additional state-law claims for breach of contract and

wrongful termination/retaliatory discharge under Tenn. Code. Ann. §§ 49-5-501 to -515. A district

court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which

it has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3); see also Ford v. Frame, 3 F. App'x 316, 318

(6th Cir. 2001) (“[D]istrict courts possess broad discretion in determining whether to retain

supplemental jurisdiction over state claims once all federal claims are dismissed.”). The Supreme

Court has noted that “in the usual case in which all federal-law claims are eliminated before trial,

the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy,

convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the

remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see

11 In their Motion, Defendants also argue that Defendant Duncan and Defendant Craig should have

the claims against them in their individual capacity dismissed for various reasons. Because the

Court finds Plaintiff’s § 1983 claim should be dismissed on other grounds, it does not address

whether Defendant Duncan and Defendant Craig can be held individually liable under § 1983.

also Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (“[A] federal court that

has dismissed a plaintiff's federal-law claims should not ordinarily reach the plaintiff's state-law

claims.”). Plaintiff does not assert any factual allegations that would suggest diversity jurisdiction

as a possible basis for the Court to exercise subject-matter jurisdiction over these claims. Instead,

as the basis for the Court’s subject-matter jurisdiction over the state-law claims, the Amended

Complaint refers only to 28 U.S.C. § 1367’s grant of supplemental jurisdiction over state-law

claims when the Court has federal-question jurisdiction over at least one claim. Because the Court

has determined that Defendants’ Motion to Dismiss should be granted as to Plaintiff’s only federal

claim (the § 1983 claim), the Court can decline to exercise supplemental jurisdiction over

Plaintiff’s state-law claims; seeing no reason not to exercise such discretion consistent with federal

courts’ usual practice, the Court will dismiss them without prejudice. Plaintiff may seek to refile

them in a Tennessee state court.

CONCLUSION

For the reasons discussed herein, the Court will deny in part and grant in part Defendants’

Motion. The Court will deny the Motion with respect to its argument that all of Plaintiff’s causes

of action should be dismissed based on a purported failure to exhaust administrative remedies. The

Court will grant the Motion with respect to its alternative argument that Plaintiff’s second cause

of action (her § 1983 claim) should be dismissed for failure to state a claim under Rule 12(b)(6).

Accordingly, Plaintiff’s § 1983 claim will be DISMISSED with prejudice, and in the Court’s

discretion Plaintiff’s state-law claims (Plaintiff’s first cause of action and third causes of action)

will be DISMISSED without prejudice pursuant to 42 U.S.C. § 1367(c), and Plaintiff may file

them in Tennessee state court if she wishes. !

The Motion will be denied as moot with respect to those aspects of the Motion the Court

has not expressly mentioned in the preceding paragraph.

An appropriate order will be entered.

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE

The Court expresses no opinion as to the extent to which such claims should or would be

successful if brought in state court.