Solima v. City of Brentwood

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DAVID SOLIMA, )

)

Plaintiff, )

)

v. ) Case No. 3:20-cv-00338

) Judge Aleta A. Trauger

CITY OF BRENTWOOD, )

)

Defendant. )

MEMORANDUM

Before the court is defendant City of Brentwood’s Motion for Summary Judgment (Doc.

No. 39), seeking judgment in its favor on plaintiff David Solima’s claims under the Age

Discrimination in Employment Act (“ADEA”) and 42 U.S.C. § 1983. For the reasons set forth

herein, the motion will be granted.

I. SUMMARY JUDGMENT STANDARD OF REVIEW

Summary judgment is appropriate where 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). “By its very

terms, this standard provides that the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986) (emphasis in original). In other words, even if genuine, a factual

dispute that is irrelevant or unnecessary under applicable law is of no value in defeating a motion

for summary judgment. On the other hand, “summary judgment will not lie if the dispute about a

material fact is ‘genuine.’” Id.

“[A] fact is ‘material’ within the meaning of Rule 56(a) if the dispute over it might affect

the outcome of the lawsuit under the governing law.” O’Donnell v. City of Cleveland, 838 F.3d

718, 725 (6th Cir. 2016) (citing Anderson, 477 U.S. at 248). A dispute is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the non-moving party.” Peeples v. City of

Detroit, 891 F.3d 622, 630 (6th Cir. 2018).

The party bringing the summary judgment motion has the initial burden of identifying and

citing specific portions of the record—including, inter alia, depositions, documents, affidavits, or

declarations—that it believes demonstrate the absence of a genuine dispute over material facts.

Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018); Fed. R. Civ. P.

56(c)(1)(A). If the non-moving party asserts that a fact is genuinely disputed, it generally “must

support the assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P.

56(c)(1)(A); see also Pittman, 901 F.3d at 628 (“The nonmoving party ‘must set forth specific

facts showing that there is a genuine issue for trial.’” (quoting Anderson, 477 U.S. at 250)). The

court must view the facts and draw all reasonable inferences in favor of the non-moving party.

Pittman, 901 F.3d at 628. Credibility judgments and the weighing of evidence are improper.

Hostettler v. Coll. of Wooster, 895 F.3d 844, 852 (6th Cir. 2018).

In its Reply, the City argues that the plaintiff’s failure to respond to its arguments regarding

whether he has direct evidence of age discrimination or whether he can establish a substantive due

process claim amounts to abandonment of these claims. (Doc. No. 53, at 3, 11.) Indeed, the Sixth

Circuit has repeatedly stated that “a plaintiff is deemed to have abandoned a claim when a plaintiff

fails to address it in response to a motion for summary judgment.” Brown v. VHS of Mich., Inc.,

545 F. App’x 368, 372 (6th Cir. 2013) (citing Hicks v. Concorde Career Coll., 449 F. App’x 484,

487 (6th Cir. 2011); Clark v. City of Dublin, 178 F. App’x 522, 524–25 (6th Cir. 2006); Conner v.

Hardee’s Food Sys., 65 F. App’x 19, 24–25 (6th Cir. 2003)). At the same time, however, in

reported opinions, the Sixth Circuit has made it clear that a district court faced with a plaintiff’s

failure to respond, in whole or in part, to a motion for summary judgment “[may] not use that

[failure] as a reason for granting summary judgment without first examining all the materials

properly before it under Rule 56(c).” F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 630 (6th

Cir. 2014) (quoting Smith v. Hudson, 600 F.2d 60, 65 (6th Cir. 1979)). The district court retains

this obligation, because “[a] party is never required to respond to a motion for summary judgment

in order to prevail since the burden of establishing the nonexistence of a material factual dispute

always rests with the movant.” Id. (quoting Smith, 600 F.2d at 64). Consequently, despite the

plaintiff’s silence in response to some of the defendant’s arguments, the court “must review

carefully the portions of the record submitted by the moving party to determine whether a genuine

dispute of material fact exists” before granting summary judgment on those particular claims. Id.

II. STATEMENT OF FACTS

A. The Defendant’s Statement of Undisputed Facts1

The City of Brentwood (“City”) is a municipality located within Williamson County,

Tennessee. It has adopted the Commission-City Manager form of government. It owns and

operates a Department of Public Works. (Doc. No. 41-1, Bednar Decl. ¶¶ 3, 5.) The City’s

Department of Public Works provides ongoing maintenance services necessary to protect the

City’s infrastructure. (Id. ¶ 9.) Todd Hoppenstedt is the City’s Director of Public Works and held

that position during the relevant time period. (Id. ¶ 10.)

The City has in place Personnel Rules and Regulations. Pursuant to Article IX of the

Personnel Rules and Regulations, “[i]t is the policy of the City that all new employees in regular

1 The facts set forth herein for which no citation is provided are drawn from the plaintiff’s

Response to the defendant’s Statement of Undisputed Material Facts (Doc. No. 47) and, unless

otherwise indicated, are undisputed or viewed in the light most favorable to the plaintiff.

full-time, part-time and temporary positions will be placed on probationary status.” (Doc. No. 41-

1, at 30.) With certain exceptions not relevant here, “all new employees in regular full-time, regular

part-time and temporary positions shall be in a probationary status for six (6) months from the date

of hire.” (Id.) Further, “[a]t any time during or upon the conclusion of the initial probationary

period, an employee may be dismissed by the employee’s respective department head with or

without cause and with no right to appeal as provided for regular employees herein.” (Id.)

With respect to employees who are retained through the end of their probationary period,

Article IX states that “[t]he supervisor shall evaluate the performance of the probationary

employee . . . by no later than the end of the sixth month.” (Id.) Article IX further provides that,

“upon completion of the probationary period, the department head shall review the evaluations

and recommend to the Human Resources Director and to the City Manager whether regular full-

time or part-time status should be conferred, the probation extended for up to six (6) additional

months, or the employee dismissed.”

On August 6, 2018, the City hired Solima as a maintenance worker in the Public Works

Department. At the time, Solima was more than forty years old.2 Once employed as a maintenance

worker, Solima was often partnered with a fellow Public Works employee as a member of a

“chipper crew.” Within a period of five months, Todd Hoppenstedt assigned Solima to work with

four different partners on the chipper crew. (Hoppenstedt Decl., Doc. No. 41-2 ¶ 8.)3 According to

2 The plaintiff alleges in the original Complaint that, when the lawsuit was filed in April

2020, he was sixty-five years old. (Doc. No. 1 ¶ 12.) He also alleges in the Amended Complaint,

filed in May 2021, that he was sixty-five years old. (Doc. No. 32 ¶ 12.) The court surmises that he

was around sixty-three or sixty-four years old when the events giving rise to this lawsuit occurred.

3 The plaintiff purports to “deny” this statement of fact “as stated,” asserting that he was

“‘assigned’ to work with multiple partners depending on the work that was required to be

performed and/or the employees of the public works department who were available on a particular

day.” (Doc. No. 47, Resp. to Statement No. 10.) This statement is not supported by a citation to

the record, as required by Rule 56(c)(1) and, therefore, may be deemed true under Rule 56(e)(2).

Hoppenstedt, he reassigned Solima to work with new partners either because of “complaints by

Mr. Solima about his partner or complaints from other employees about Mr. Solima.” (Id. ¶ 9.)

The plaintiff purports to deny the truth of that statement, but the record does not support

his denial. It is undisputed that Solima was initially assigned to work with Randy Parker on a

chipper crew. Randy Parker was Solima’s designated “trainer” for on-the-job training. At the time,

Parker had been employed by the City for approximately fifteen years and was over sixty years

old. In November 2018, Solima requested to be assigned to a new partner. According to Solima,

around that time, Hoppenstedt announced that he was switching up partners after there had been

altercations between two other employees. By then, Solima had obtained his Commercial Driver’s

License and Randy Parker was going on vacation. The plaintiff thought that this would be “a good

opportunity” to ask to be reassigned to a new partner. (Doc. No. 46-2, Solima Dep. 93.) He also

testified, however, that he conveyed to Hoppenstedt various complaints about Parker when he

spoke to him about changing partners. (Id. at 92–93 (confirming that he had made complaints about

Parker to Hoppenstedt “there at the end of November when . . . Randy went on vacation”); see

also Doc. No. 49, Solima Decl. ¶ 30 (“I requested Mr. Hoppenstedt assign me to work with

someone else other than Randy Parker. Mr. Hoppenstedt asked me why I wanted to be assigned

with someone other than Randy Parker. Hesitantly, I explained how Randy Parker was treating me

when we were out in the truck all day.”).)

Solima was partnered with another Public Works employee, Randall Richards. According

to Hoppenstedt, Richards complained to him in November 2018 that Solima was condescending

and difficult to work with, and he threatened to quit if he was forced to partner with Solima. (Doc.

Regardless, the plaintiff does not dispute that he was assigned to multiple partners over the course

of his five-month tenure with the City.

No. 41-2 ¶¶ 10–11.) The plaintiff protests that he can neither admit nor deny the truth of private

conversations between Hoppenstedt and Richards. (Doc. No. 47, Resp. to Statement Nos. 17–18.)

However, Solima denies that he was condescending and further denies that Richards ever

complained that he was. (Doc. No. 46-2, Solima Dep. 58.) Solima testified that he never had a

problem getting along with Richards, but he did have a problem with the fact that Richards smoked

in the truck. To resolve this problem, Solima approached Richards and asked him to smoke outside

the truck while the plaintiff was loading branches into the chipper. Richards agreed. (Doc. No. 46-

2, Solima Dep. 57–58.) Solima never complained to Hoppenstedt about Richards’ smoking. (Doc.

No. 41-3, Solima Dep. 138.) Richards later told Solima that he had gone to Hoppenstedt or another

supervisor sometime after that conversation and asked for a new partner because Solima did not

smoke. (Id. at 58.) Richards was partnered with someone else who “didn’t show up for work,” so

he asked to be partnered with Solima again and told the supervisors that smoking would not be an

issue. (Id.) So Solima and Richards were partnered again at some point. (Id.)

Hoppenstedt avers that, after Richards asked for a different partner, Solima was assigned

to work with David Wray. (Hoppenstedt Decl. ¶ 14.) Solima testified that his relationship with

Wray “instantaneously was bad.” (Doc. No. 41-3, Solima Dep. 132.) Wray, too, smoked in the

truck and generally tried to “make it as difficult as he could” for the plaintiff. (Id. at 133.) Solima

denies that he “complained,” but he admits that he eventually talked to Hoppenstedt about “David

Wray’s foul language, David Wray’s bad attitude, David Wray driving off before Plaintiff was

seated safely in the vehicle, David Wray removing the rake after Plaintiff had placed it on the truck

where Plaintiff could quickly access it for the next chipping site.” (Doc. No. 47, Pl.’s Resp. to

Statement No. 22 (citing Doc. No. 46-2, Solima Dep. 134).) Hoppenstedt brought both Solima and

Wray into his office together to try to mediate the problems. Wray admitted to everything Solima

had said about him and blamed his behavior on “tremendous stress at home.” (Id. (citing Solima

Dep. 134).) Hoppenstedt asked if they could get along, and Solima readily agreed that he could

get along with Wray, so long as he did not smoke or vape in the truck. (Solima Dep. 134.) Solima

and Wray shook hands at the end of the meeting, and Solima thought that they had put the issue

behind them. (Id. at 134–35.) However, when Hoppenstedt asked Solima later that day how things

had gone between them for the rest of the day, Solima reported that he had “tried to strike up

conversation and all,” but Wray “refused to say one word” to him and continued his basically

hostile behavior. (Id. at 135.)

Shortly after that, Solima was reassigned to work with Randy Parker. (Id. at 134, 137.) He

testified that he “sent an e-mail somewhere around that time frame . . . begging [Hoppenstedt]

please don’t put me with Randy. . . I don’t need interference while I’m driving in the truck,

somebody yelling and screaming that I can’t even turn on a turn signal correctly or whatever . . . .”

(Id. at 134; see also id. at 137 (“I think . . . I asked [Hoppenstedt] . . . please, please . . . don’t put

me back with Randy, but I worked with Randy.”).)

Because Solima had asked not to be partnered with Parker anymore, Hoppenstedt arranged

a meeting with Solima, Parker, and two other Public Works employees, Rich Richardson and Ernie

Martin, on January 7 or 8, 2019. (Doc. No. 46-2, Solima Dep. 141.) Solima reported to

Hoppenstedt that Parker had been verbally and physically abusive when they were first partnered

together in August or September, and, in fact, much of the meeting apparently concerned an event

that took place during that time frame between Solima and Parker, whose versions of the event

differed strikingly. According to Solima, on a day back in August or September, he, Parker, and

another Public Works employee, Steven Tomlinson, were assigned to clean up a big tree that had

come down in a storm. Solima was attempting to “maneuver[] this log” into the chipper, when

Parker hit him on his right shoulder, causing him to fall into the log and sustain substantial bruising.

(Id. at 60, 139.) Parker denied ever hitting or pushing Solima and claimed, instead, that he had

“lightly tapped” him on the shoulder to let him know he (Parker) was there. (Id. at 141.) Solima

testified that Parker’s version of this event was “[c]ompletely untrue.” (Id.)

Hoppenstedt talked with Tomlinson about the event, but Tomlinson did not recall an

altercation between Solima and Parker. According to Parker, there was no way Tomlinson would

have known about it, because he was some distance away with his back turned. (Id. at 60.) Even

though Hoppenstedt was unable to confirm what exactly had happened, he counseled Parker and

gave him a verbal warning. (Doc. No. 41-4, Hoppenstedt Dep. 31–32.) The City’s HR Director,

Mike Worsham, however, testified that, “because the two stories were completely different, . . .

there wasn’t enough evidence to take any disciplinary action with Mr. Parker.” (Doc. No. 46-4,

Worsham Dep. 24.)

Hoppenstedt held another meeting with Solima on January 15, 2019, which resumed on

the following day. The meeting on January 16, 2019 lasted about an hour. Hoppenstedt testified

that he construed many of Solima’s statements on January 16 to contradict statements Solima had

made on January 15; he also felt that Solima was unable to provide him with enough information

to substantiate his complaints about other employees in the department. (Doc. No. 41-4,

Hoppenstedt Dep. 19–21; Doc. No. 41-2, Hoppenstedt Decl. ¶ 28.) The plaintiff, citing to an

exhibit to his deposition that is not in the court’s record, denies that he made contradictory

statements. (Doc. No. 47, Pl.’s Resp. to Statement No. 36.)4

4 Solima also denies that he did not give Hoppenstedt sufficient information to corroborate

his complaints, referencing an irrelevant event that Hoppenstedt did not raise and citing to a portion

of his own deposition testimony regarding the same matter, without providing any context. (Doc.

No. 47, Pl.’s Resp. to Statement No. 37 (citing Solima Dep. 56).)

On January 16, 2019, Hoppenstedt made the decision to terminate Solima’s employment,

prior to the conclusion of the plaintiff’s probationary period. Hoppenstedt testified that he

terminated Solima based on his belief that Solima was not a “good fit for the position” and the

position was not a “good fit for him,” in particular because Solima did not get along well with his

co-workers. (Doc. No. 41-4, Hoppenstedt Dep. 16–17.) Hoppenstedt also stated that he had lost

trust in Solima due to the inconsistencies in the complaints he reported to Hoppenstedt. (Doc. No.

41-4, Hoppenstedt Dep. 23.) Solima was terminated effective January 16, 2019. (Doc. No. 41-1,

Bednar Decl. ¶ 25.)

Solima disputes Hoppenstedt’s stated reasons, claiming that, during his employment, he

was told “almost daily” “how good” he was doing, how well he was fitting in, and how much the

department appreciated having him there. (See Doc. No. 46-2, Solima Dep. 234.) He also disputes

that trust was an issue, as this was something he did not hear until Hoppenstedt’s deposition. He

insists that, if trust had truly been an issue, Hoppenstedt would not have given a verbal warning to

Parker. (Doc. No. 47, Pl.’s Resp. to Statement No. 41.) According to Solima, Hoppenstedt

terminated his employment after he “raised the issues of harassment and bullying by Randy Parker

and smoking by David Wray.” (Doc. No. 49, Solima Decl. ¶ 36.) Hoppenstedt told Solima he “had

to let him go for the good of the department.” (Id.)

Following Solima’s termination, the City had difficulty filling his position. According to

Hoppenstedt, it is common for a maintenance worker position to remain unfilled for a “lengthy”

period of time. (Doc. No. 41-2, Hoppenstedt Decl. ¶ 34.) There was already an open position in

the department when the plaintiff was terminated, leaving a second open position. The City

acknowledges that these positions were eventually filled, but it claims that Solima was not

“directly replaced.” (Hoppenstedt Decl. ¶ 33.) The plaintiff denies that assertion and asserts that

the City hired three new employees ranging in age from twenty-three to thirty-six years old in

August and September 2019. (Doc. No. 47, Pl.’s Resp. to Statement No. 45; see also Doc. No. 54,

Def.’s Resp. to Statement Nos. 33, 34, 41, 42, 44, 45.)5

B. The Plaintiff’s Statement of Additional Facts

The plaintiff submitted a Statement of Additional Undisputed Material Facts (Doc. No.

48), to which the defendant has responded (Doc. No. 54). The court’s Local Rule 56.01 permits a

non-moving party to submit a “concise statement of any additional facts that the non-movant

contends are material and as to which the non-movant contends there exists a genuine issue to be

tried.” L.R. 56.01(c) (emphasis added). The plaintiff’s Statement of Additional Undisputed

Material Facts—195 of them—is not concise, and it largely consists of additional facts as to which

he contends there is no dispute. Moreover, the vast majority of the factual statements are simply

immaterial. Those additional facts that have any remote relevance to the plaintiff’s claims in this

lawsuit include the following.

The plaintiff told Todd Hoppenstedt in October or November 2018 that he was referred to

by other employees as “Old Dave.” (Doc. No. 46-2, Solima Dep. 64.) Solima told Hoppenstedt

about this after a regular morning meeting during which Hoppenstedt had referred to Randy Parker

and Solima as the “geriatric crew.” (Id. at 68.) Hoppenstedt made that comment in the context of

noting that Parker and Solima were out-performing other crews in the performance of a particular

task. (Id.) Hoppenstedt “kind of laughed about it” and, when the plaintiff told him about being

called “Old Dave,” told him he “needed to stand up for [him]self.” (Id. at 64.) At a company dinner,

David Wray introduced Solima to his wife as “Old Dave” in front of Hoppenstedt. (Id. at 65.) A

5 Although the plaintiff’s response to the defendant’s Statement of Undisputed Fact No. 45

is not supported by any citation to the evidentiary material in the record, the plaintiff has supplied

evidentiary support for this assertion and refers to it in his own Statement of Additional Facts.

day or so after the dinner, the department superintendent, Rich Richardson, approached Solima to

tell him that “everybody . . . got nicknames.” (Id. at 65.)

The plaintiff maintains that there were numerous “comparator” employees who were

treated more favorably than he was. These employees ranged in age from twenty-one years old to

mid-thirties. They were hired in September 2017, August 2019, September 2019, January 2020,

and June 2020. As reflected in their personnel files, some of them were hired despite having

criminal convictions, records of being involved in traffic accidents, and suspended licenses. Some

of them had negative performance evaluations; others had no performance evaluations in the

personnel files. According to the City’s HR Director, the City was “regularly recruiting, and, even

during those times when [the City was] fully staffed,” it would accept applications for maintenance

workers. (Doc. No. 46-4, Worsham Dep. 20.)

Worsham testified that it was the department director’s job to make a decision at the end

of any employee’s probationary period whether to recommend regular status, full time, part time,

extension of probation, or discharge. (Id. at 25.) Hoppenstedt never raised any concerns about the

plaintiff’s job skills, knowledge, performance, punctuality, attendance, reliability, concern for

safety, or ability to work with others with Worsham.

Hoppenstedt testified that he had terminated other probationary employees, including one

who had a traffic accident in a city vehicle and inaccurately reported what happened. (Doc. No.

46-3, Hoppenstedt Dep. at 65–66.) Another probationary employee was put on extended probation

to give him time to obtain his commercial driver’s license. (Id. at 66–67.)

Addressing why he believed Solima was not a good fit for his job, Hoppenstedt explained

that part of the problem was that the plaintiff’s “management experience was just a part of him.”

(Doc. No. 46-3, Hoppenstedt Dep. 17.) As a result, Hoppenstedt believed that Solima “often had

feedback and suggestions about how things should be done differently, he was trying to work in a

role that he wasn’t hired for.” (Id.) Hoppenstedt also testified that he did not learn about most of

the plaintiff’s complaints about his co-workers until “toward the end of his time” with the City,

rather than when they occurred. (Id.) However, Hoppenstedt claimed that he had at least four

conversations with the plaintiff during his five-month tenure about his problems with his co-

workers, but Hoppenstedt did not document these conversations. (Id. at 27–28.) Hoppenstedt

stated: “Oftentimes we would have a discussion after he would make a remark about a previous

assigned partner and his inability to work with one person, and wanting to basically cherry pick

his next partner. . . . I also told him I was running out of partner combinations.” (Id. at 27.)

There is no dispute that the plaintiff never received a performance evaluation. There is no

dispute that Hoppenstedt never raised any issues or concerns with HR about the plaintiff’s

knowledge, job skills, quality of work, attendance or punctuality, ability to get along with others,

dependability or reliability, or concern for safety. The plaintiff was never told that there was any

problem with his job performance.

III. PROCEDURAL BACKGROUND

Solima initiated this lawsuit in April 2020, purporting to assert age discrimination claims

under Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981, neither of

which prohibits age discrimination. In response to the defendant’s Motion for Judgment on the

Pleadings, the court granted Solima leave to amend his pleading to assert claims under the ADEA

and 42 U.S.C. § 1983. (See Doc. No. 31.) The Amended Complaint was filed on May 7, 2021.

The defendant has now filed its Motion for Summary Judgment, supporting Memorandum,

Statement of Undisputed Material Facts, and the evidentiary material cited in the Statement of

Undisputed Material Facts. (Doc. Nos. 39, 40, 41, 42.) The plaintiff filed an “Objection” to the

Motion for Summary Judgment, Memorandum of Law in support of his Objection, a “Response

and Objection” to the Statement of Undisputed Material Facts, and his own evidentiary material.

(Doc. Nos. 45, 46, 47, 49.) As noted, he also filed a separate Statement of Additional Material

Facts as to which he contends there is no material factual dispute. (Doc. No. 48.) The defendant

filed a Reply and a Response to the Statement of Additional Facts. (Doc. Nos. 53, 54.)

The defendant seeks summary judgment on the grounds that: (1) the plaintiff lacks direct

evidence of age discrimination and cannot establish a prima facie case of age discrimination using

direct evidence, because he cannot show that he was replaced by someone outside the protected

class or treated less favorably than similarly situated non-protected employees; (2) even if could

establish a prima facie case, he cannot show that the City’s legitimate, non-discriminatory reason

for terminating him is pretext for age discrimination; (3) the plaintiff cannot establish a violation

of his right to procedural due process, because the plaintiff, as a probationary employee, did not

have a property interest in continued employment, under state law, and therefore had no right to

any process in connection with being terminated; and (4) likewise, the plaintiff had no substantive

due process right to continued employment or any kind of hearing or appeal rights.

The plaintiff has responded to most of these arguments and generally contends that

genuine issues of material fact preclude summary judgment in favor of the defendant.

IV. DISCUSSION

A. ADEA Discrimination Claim

1. Legal Standard

The ADEA prohibits employers from terminating employees “because of such individual’s

age.” 29 U.S.C. § 623(a)(1) (emphasis added). To satisfy this requirement, the plaintiff must

“prove by a preponderance of the evidence (which may be direct or circumstantial) that age was

the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 177–78 (2009). “This requires showing that age was the determinative reason [the plaintiff

was] terminated; that is, [he] must show ‘that age was the “reason” that the employer decided to

act.’” Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021) (quoting Scheick v. Tecumseh

Pub. Schs., 766 F.3d 523, 529 (6th Cir. 2014), and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 350–51 (2013)) (emphasis in the original), cert. denied sub nom. Pelcha v. Watch Hill Bank,

142 S. Ct. 461 (2021). Under Sixth Circuit and Supreme Court precedent, establishing “but-for

cause” requires plaintiffs to show that age “had a determinative influence on the outcome” of the

employer’s decision-making process. Id. at 324 (quoting Gross, 557 U.S. at 176). Thus, to avoid

summary judgment in this case, Solima must establish the existence of a genuine dispute of

material fact that, if resolved in his favor, could persuade a reasonable juror that age was the but-

for cause of his termination. See id.

A plaintiff can establish his ADEA claim through either direct or circumstantial evidence.

Id. “Direct evidence is evidence that proves the existence of a fact without requiring any

inferences” to be drawn. Id. (quoting Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544,

548 (6th Cir. 2004)). “Conversely, circumstantial evidence requires the factfinder to draw

inferences from the evidence presented to conclude that the plaintiff was terminated based on age.”

Id.

If a plaintiff lacks direct evidence, he may attempt to show age discrimination with

circumstantial evidence. In this Circuit, the Sixth Circuit has continued to endorse the “three-step

burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–06

(1973),” for analyzing employment discrimination claims. Pelcha, 988 F.3d at 324. The first step

of this analysis requires the plaintiff to establish a prima facie case of discrimination. If he is able

to do so, the burden of production shifts to the employer to identify a legitimate, nondiscriminatory

reason for the termination. Id. at 325. Once the employer identifies a reason, the burden shifts back

to the plaintiff to prove that the employer’s reason is simply pretext. Id. If the plaintiff prevails at

that step, the factfinder may reasonably infer discrimination. Id.

2. Whether the Plaintiff Has Direct Evidence of Discrimination

As the defendant points out, Solima does not actually respond to its argument that he lacks

direct evidence of age discrimination. Solima does, however, point to evidence in the record in his

Statement of Additional Facts that he apparently believes constitutes direct evidence of age

discrimination. This evidence consists of his testimony that his co-workers referred to him as “Old

Dave,” a nickname to which he objected, and that his supervisor, Todd Hoppenstedt, referred to

him and Randy Parker on one occasion as his “geriatric crew,” in the context of complimenting

them on completing a task more quickly than the other crews. (See Doc. No. 48 ¶¶ 1–2.) The

plaintiff also testified that Hoppenstedt knew that other employees were calling him “Old Dave”

but simply told Solima he needed to “stand up” for himself. (Id. ¶ 4.)

The Sixth Circuit has identified four factors to be considered in determining the

“materiality of allegedly discriminatory statements” that a plaintiff characterizes as direct evidence

of discrimination, none of which is dispositive: “(1) whether the statements were made by a

decision-maker . . . ; (2) whether the statements were related to the decision-making process; (3)

whether the statements were more than merely vague, ambiguous or isolated remarks; and (4)

whether they were made proximate in time to the act of termination.” Pelcha, 988 F.3d at 325

(quoting Diebel v. L & H Res., LLC, 492 F. App’x 523, 527 (6th Cir. 2012)). “This is a high bar.”

Id. “In reviewing direct evidence, we look for ‘evidence from the lips of the defendant proclaiming

his or her . . . animus.’ Inferences are not permitted.” Id. at 326 (quoting Diebel, 492 F. App’x at

526–27).

Applying these factors here, the plaintiff does not claim that his supervisor or any

decisionmakers referred to him as Old Dave; the comments were not related to any decision-

making process; the reference to his age has no bearing on his ability to perform his job and it does

not, standing alone, establish animosity toward older workers. The plaintiff’s being called Old

Dave by his co-workers does not constitute direct evidence of age discrimination.

Likewise, Hoppenstedt’s reference to Solima and Parker as his “geriatric crew,” although

made by the individual responsible for terminating the plaintiff’s employment, was not related to

the decision-making process, and it constitutes a single, isolated remark made in the context of

complimenting the plaintiff’s work performance. The comment was presumably made less than

five months prior to the plaintiff’s termination, since he was only employed by the defendant for

approximately five months, but the plaintiff has not shown that the comment was made acutely

near in time to his termination or that it has any relation to Hoppenstedt’s decision to terminate

him.

The Sixth Circuit has emphasized that, “[i]n reviewing direct evidence, we look for

‘evidence from the lips of the defendant proclaiming his or her . . . animus.’” Pelcha, 988 F.3d at

326 (quoting Diebel, 492 F. App’x at 526–27). Hoppenstedt’s isolated comment hardly proclaimed

his animus toward older employees, and his knowledge that other employees called the plaintiff

Old Dave does not give rise even to an inference that the plaintiff’s termination was age-related,

much less qualify as direct evidence of such. The court finds, in sum, that the plaintiff has failed

to point to direct evidence of discrimination based on age.

3. Whether the Plaintiff Can Establish a Prima Facie Case

In the absence of direct evidence, the court turns to whether the plaintiff can establish his

claim through indirect evidence, under the McDonnell Douglas framework. To establish a prima

facie case of age discrimination, the plaintiff must show that he (1) was a member of a protected

class (older than 40 years old); (2) suffered an adverse employment action; (3) was qualified for

the position held; and (4) was replaced by someone significantly younger than he or, alternatively,

that similarly situated non-protected employees were treated more favorably than he. Id. at 326

(citations omitted); Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003). It is well

established that the plaintiff’s burden at this step is “light,” “easily met,” and “not onerous.”

Pelcha, 988 F.3d at 326 (citations omitted).

For purposes of summary judgment, the City does not dispute that the plaintiff can show

the first three elements of a prima facie case: (1) he is a member of a protected class by virtue of

his age; (2) he suffered an adverse employment action when he was terminated; and (3) he was

qualified for the position he held. The defendant argues that the plaintiff cannot show either that

he was replaced by someone outside the protected class or that he was treated less favorably than

similarly situated non-protected employees.

In support of its argument that the plaintiff “cannot prove that he was replaced by someone

under the age of 40,” the City argues that the plaintiff, at his deposition, was unable to identify the

names or ages of any employee who replaced him. (Doc. No. 40, at 13.) The defendant does not

explain, however, why Solima would be required to have that information at his disposal at the

time he was deposed. Moreover, it is now undisputed that the City hired three maintenance

workers, all of whom were under age forty and two of whom were under thirty, approximately

seven months after Solima’s termination. (See Doc. No. 54, Def.’s Resp. to Statement Nos. 33, 34,

41, 42, 44, 45.) The City nonetheless argues that there was already an open position for a

maintenance worker when the plaintiff was terminated, meaning that there were two such positions

after his termination. (Doc. No. 40, at 13.) While it concedes that these positions were “ultimately

filled” seven or eight months after the plaintiff’s termination, the City argues that the plaintiff was

not “directly replaced,” because the City had difficulty filling maintenance worker positions

generally, and it is “common” for a maintenance worker position to remain unfilled for a lengthy

period of time. (Id. (citing Doc. No. 41-2, Hoppenstedt Decl. ¶¶ 33, 34).)

In the Sixth Circuit, a “person is not replaced when another employee is assigned to

perform the plaintiff’s duties in addition to other duties, or when the work is redistributed among

other existing employees already performing related work. A person is replaced only when another

employee is hired or reassigned to perform the plaintiff’s duties.” Grosjean v. First Energy Corp.,

349 F.3d 332, 336 (6th Cir. 2003) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.

1990)). The defendant does not actually argue here that Solima’s job duties were distributed among

other maintenance workers, and it does not argue that the position he vacated was not ultimately

filled. It seems to be arguing that, because the position was not filled immediately, the plaintiff

cannot show that he was actually “replaced” by a younger employee. But the City does not point

to any caselaw supporting its position that, simply because it took some time to find a permanent

replacement for a terminated employee, the terminated employee was not actually replaced. The

court finds that there is, at a minimum, a material factual dispute as to whether the plaintiff was

replaced by a substantially younger employee. Consequently, the plaintiff has succeeded in stating

a prima facie case of age discrimination, and the court has no need to address the question of

whether the plaintiff can show that he was treated less favorably than similarly situated non-

protected employees.

4. The Defendant’s Legitimate, Non-Discriminatory Reason for Terminating

the Plaintiff

Because Solima has established a prima facie case of age discrimination, the burden shifts

to the City to articulate a non-discriminatory reason for Solima’s termination, which it has done.

The City states that Solima was terminated because he was not a “good fit for the position” and

the position was not a “good fit for him,” in particular because he did not get along well with his

co-workers. (Doc. No. 41-4, Hoppenstedt Dep. 16–17; see also Doc. No. 40, at 15.) Hoppenstedt

also testified that he no longer trusted the plaintiff, due to his perception that the plaintiff’s

statements at the meeting on January 15 conflicted with additional statements made when the

meeting resumed on January 16, 2019. (Doc. No. 41-2, Hoppenstedt Decl. ¶ 31.)

5. Whether the City’s Reason Is Pretext for Discrimination

The plaintiff concedes that the defendant has proffered a legitimate, non-discriminatory

reason for his discharge. (Doc. No. 46, at 15.) Accordingly, the burden shifts back to Solima to

show that this reason is a pretext to conceal that the true motive for his termination was his age.

“Put simply, the ‘commonsense’ question here is: ‘did the employer fire the employee for the

stated reason or not?’” Pelcha, 988 F.3d at 326 (quoting Chen v. Dow Chem. Co., 580 F.3d 394,

400 n.4 (6th Cir. 2009)). The Sixth Circuit recognizes that “[p]laintiffs typically show pretext in

one of three ways: (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons

did not actually motivate the employer’s action, or (3) that the proffered reasons were insufficient

to motivate the employer’s action.’” Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 888

(6th Cir. 2020) (quoting Chen, 580 F.3d at 400). However, these three categories are not the

exclusive means by which a plaintiff can show pretext. Rather, they are simply a “convenient way

of marshaling evidence and focusing it on the ultimate inquiry: ‘did the employer fire the employee

for the stated reason or not?’” Id. (quoting Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir.

2012)). Regardless of what course he takes, the “plaintiff must articulate some cognizable

explanation of how the evidence [he] has put forth establishes pretext.” Id.

Here, the plaintiff first argues that “the real reason for his termination on January 16, 2019

was his complaints of harassment to Mr. Hoppensted[t] about ongoing harassment in the

workplace by Randy Parker and David Wray.” (Doc. No. 46, at 15.) This argument is utterly

baffling, insofar as it appears on its face to concede that the plaintiff was not terminated because

of his age but, instead, because of his complaints about his co-workers. Solima elaborates,

however, asserting that purported

“weaknesses, implausibilities, inconsistencies, incoherences, [and] contradictions”

produced in discovery and also witness testimony . . . establish sufficient evidence

that his termination was not motivated by Hoppenstedt’s stated reasons of “not

fitting in” or “not a good fit” for the City, so that the only plausible reason left for

his termination was the reports of harassment and complaints about being referred

to as “the geriatric crew” and “Old Dave.”

(Doc. No. 46, at 16.)

In other words, the plaintiff appears to be arguing that he reported co-worker harassment

based on age and was fired in retaliation for making that report. He then goes on to discuss caselaw

concerning “protected activity” and “retaliatory discharge,” apparently in support of a retaliation

claim. (Id. at 16–17.) However, in the course of this discussion, he points out that he was

terminated shortly after complaining to Hoppenstedt about David Wray’s smoking in the City’s

truck, in violation of City policy, while Wray was never disciplined for violating City policy. His

reporting Wray’s smoking has nothing to do with age. Likewise, in his Amended Complaint, he

alleges that he was terminated after complaining about an employee who “smoked in the truck”

(presumably Wray), and about another employee (presumably Randy Parker) who “used profanity

and yelled at Plaintiff” and was “verbally and physically abusive” toward him. (Doc. No. 32 ¶¶

20, 24, 26.) He argues now, as he did in the Amended Complaint, that instead of investigating his

complaints or disciplining the other employees, Hoppenstedt fired him after he “raised the issues

of the harassment and bullying by Randy Parker and the smoking by David Wray,” (Doc. No. 49,

Solima Decl. ¶ 36; see also Am. Compl., Doc. No. 32 ¶¶ 21–29; see also Doc. No. 46, at 17

(“Plaintiff raised the grievance [about Wray’s smoking] with Mr. Hoppenstedt. Mr. Hoppenstedt

did not discipline David Wray for smoking in the truck in violation of the City Rules and

Regulations. . . . There was never an issue with [Solima] until [he] raised concerns of harassment

[by Wray and Parker] with Mr. Hoppenstedt.”).)

This argument does nothing to establish that Hoppenstedt’s proffered reason for the

plaintiff’s discharge were pretextual. Rather, it serves to substantiate, rather than contradict,

Hoppenstedt’s conclusion that Solima was not a good fit for the job because he did not get along

well with his co-workers. Along the same lines, insofar as the plaintiff attempts to dispute, as a

factual matter, that he complained about multiple employees or that he could not get along with

other employees, thus attempting to call into question the truth of Hoppenstedt’s stated reason for

his termination, that attempt fails as well. While the plaintiff attempts to dispute that he complained

about other employees, he has repeatedly admitted that he complained about other employees,

particularly Parker and Wray. (See, e.g., Am. Compl., Doc. No. 32 ¶¶ 21, 26 (alleging that the

plaintiff “requested to be paired” with employees who did not smoke and who were not “verbally

and physically abusive”); Doc. No. 46-2, Solima Dep. 92–93 (confirming that he had made

“complaints” about Parker to Hoppenstedt “there at the end of November [2018] when . . . Randy

went on vacation” and in January 2019); id. at 134, 137 (confirming that he emailed Hoppenstedt

“begging” Hoppenstedt not to partner him with Parker, because he did not want to work with

“somebody yelling and screaming that I can’t even turn on a turn signal correctly or whatever”);

Doc. No. 49, Solima Decl. ¶ 30 (“I explained how Randy Parker was treating me when we were

out in the truck all day.”); id. ¶ 35 (“I told Mr. Hoppenstedt about David Wray smoking in the

truck.”); id. ¶ 36 (“Mr. Hoppenstedt terminated my employment after I raised the issues of the

harassment and bullying by Randy Parker and the smoking by David Wray.”).)6

6 To be clear, the Amended Complaint does not set forth a claim for retaliation in violation

of the ADEA, and, even if it had, the plaintiff’s allegations now do not establish a prima facie case

of ADEA retaliation. Specifically, Solima has not shown that he engaged in activity protected by

the ADEA by expressing “opposition to an unlawful employment practice.” Fox v. Eagle Distrib.

Co., 510 F.3d 587, 591 (6th Cir. 2007); see also Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501,

511 (6th Cir. 2016). This is because he has repeatedly alleged that he was terminated for

complaining about Parker’s mistreatment of him and Wray’s smoking and other unpleasant

The court accepts as true that Solima’s complaints about the other employees were justified

and legitimate, but that conclusion does not nullify the fact that Solima, in fact, made complaints

about his co-workers. And, while his termination may have been unfair and unwarranted, Solima

has not shown that his termination for complaining about other employees was illegal or

discriminatory. The law is clear that an employer may fire an at-will employee “for a good reason,

a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not

for a discriminatory reason.” Pelcha, 988 F.3d at 329 (quoting Miles v. S. Cent. Hum. Res. Agency,

Inc., 946 F.3d 883, 886 (6th Cir. 2020)) (internal quotation marks omitted).

Finally, Solima asserts that Hoppenstedt never mentioned that he had lost trust in the

plaintiff until Hoppenstedt’s deposition. The plaintiff argues that Hoppenstedt’s “changing

rationale” for his termination decision is evidence of pretext. However, Hoppenstedt did not

change his rationale; he simply added an additional reason for his decision. The Sixth Circuit has

stated that “providing additional, non-discriminatory reasons that do not conflict with the one

stated at the time of discharge does not constitute shifting justifications.” Miles v. S. Cent. Human

Res. Agency, Inc., 946 F.3d 883, 891 (6th Cir. 2020) (quoting MacDonald-Bass v. J.E. Johnson

Contracting, Inc., 493 F. App’x 718, 726 (6th Cir. 2012)).

The plaintiff has effectively admitted that he was fired for complaining about Wray’s

smoking in the truck and Parker’s physical and verbal abuse of him, which substantiates

Hoppenstedt’s perception that the plaintiff complained about his co-workers and was not a good

behavior. He does not actually contend that his termination was related to his complaining to

Hoppenstedt about being called “Old Dave” by his co-workers or about Hoppenstedt’s reference

to his being part of the “geriatric crew.” Moreover, complaining about these two things would not

qualify as specifically “objecting to discriminatory conduct against [him] based on [his]

membership in a protected class.” Braun, 828 F.3d at 511 (quoting Balding–Margolis v. Cleveland

Arcade, 352 F. App’x 35, 45 (6th Cir. 2009)).

fit for the job. While the plaintiff takes issue with Hoppenstedt’s failure to investigate his

complaints or to discipline the other employees, he has not shown that Hoppenstedt’s proffered

reasons for his termination were pretextual, and he has not pointed to any evidence in the record

that remotely supports an inference that he was terminated because of his age. The defendant is

entitled to summary judgment and dismissal of the plaintiff’s age discrimination claim.

B. Due Process Claims Under 42 U.S.C. § 1983

In the Amended Complaint, the plaintiff asserts claims under 42 U.S.C. § 1983 for violation

of his rights to both procedural due process and substantive due process, as protected by the

Fourteenth Amendment to the United States Constitution, apparently based on his not having been

granted a “fair and impartial hearing” either before or after his termination. (See Am. Compl., Doc.

No. 32 ¶ 51.)

a) Procedural Due Process

The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive

any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1.

To establish a procedural due process claim, the plaintiff must show that “(1) he had a life, liberty,

or property interest protected by the Due Process Clause; (2) he was deprived of this protected

interest; and (3) the state did not afford him adequate procedural rights prior to depriving him of

the property interest.” Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006)

(citing Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999)). The only question at issue here is

whether the plaintiff had a protected property interest in his public employment.

“A government position, by itself, does not constitute a protected property interest.” Jones

v. Perry Cty. Fiscal Court, 185 F. Supp. 3d 947, 955 (E.D. Ky. 2016) (quoting Bailey v. Floyd Cty.

Bd. of Educ., 106 F.3d 135, 141 (6th Cir. 1997)). Rather, government employment may give rise

to a protected property interest only “when the employee is ‘entitled’ to continued employment.’”

Nunn v. Lynch, 113 F. App’x 55, 58–59 (6th Cir. 2004) (quoting Bailey, 106 F.3d at 141). Whether

a property interests exists primarily depends on state law. Bailey, 106 F.3d at 141. Therefore, a

government employee asserting a protected property interest in his position must “point to some

statutory or contractual right conferred by the state which supports a legitimate claim to continued

employment.” Id. An at-will employee, or an employee who may be terminated without cause,

does not have a protected property interest. Id.

Government employees with a “protectable property interest in their jobs are ordinarily

entitled to pre-deprivation notice of the charges, an explanation of the employer’s evidence, and

an opportunity to present their account of the events.” Id. (citing Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 546 (1985); Buckner v. City of Highland Park, 901 F.2d 491, 494 (6th

Cir. 1990)). On the other hand, a government employee who does not have a property interest in

his position is “not entitled to any pre-deprivation process whatsoever.” id. (citing Williams v.

Kentucky, 24 F.3d 1526, 1537 (6th Cir. 1994)).

In support of its Motion for Summary Judgment, the defendant argues that, under the clear

language of Article IX of the City’s Rules and Regulations, the plaintiff, as a probationary

employee of the City, could be fired “[a]t any time during or upon the conclusion of the initial

probationary period, . . . with or without cause and with no right to appeal as provided for regular

employees.” (Doc. No. 40, at 18 (quoting Doc. No. 41-1, at 30).) Accordingly, the City argues,

“Plaintiff cannot establish that he was entitled to or deprived of procedural due process rights.”

(Id.)

In response, the plaintiff appears to be arguing that Article I of the City’s Rules and

Regulations created a property interest in his continued employment, insofar as it contains “clear

language” that its provisions apply to “all employees.” (See Doc. No. 46, at 13.) The plaintiff

interprets this provision to mean that the progressive disciplinary policy embodied in Article XII

should apply to “all employees” and that he was terminated in violation of that policy. However,

Section A of Article XII, “Application,” expressly refutes the plaintiff’s proposed interpretation.

It states: “This Article applies to all City employees; provided, however that a probationary

employee may be dismissed as provided for in Article IX with no right to appeal as provided for

regular employees herein.” (Doc. No. 41-1, at 43.)

Article IX conclusively establishes that the plaintiff, as a probationary employee, was an

at-will employee of the City who could be terminated at any time “with or without cause.” (Id. at

25.) As a probationary employee, therefore, he had no protected property interest in his

employment and was not entitled to any process whatsoever upon his termination. His claim that

his termination without the right to a hearing violated his right to procedural due process is without

merit, and the defendant is entitled to summary judgment on this claim.

b) Substantive Due Process

“Substantive due process ‘prevents the government from engaging in conduct that shocks

the conscience’ . . . or interferes with rights implicit in the concept of ordered liberty[.]’” Prater v.

City of Burnside, 289 F.3d 417, 431 (6th Cir. 2002) (quoting United States v. Salerno, 481 U.S.

739, 746 (1987)). With regard to the scope of the liberty rights protected, the Sixth Circuit has

explained:

Over time, the Supreme Court has construed the substantive component of the Due

Process Clause to protect two types of “liberty.” It incorporates most of the

guarantees of the Bill of Rights—which originally restricted only the Federal

Government—and protects these rights from state infringement. And it protects

other fundamental rights not expressly mentioned in the Bill of Rights but implicit

in the concept of ordered liberty and deeply rooted in this Nation’s history and

tradition—including personal decisions relating to marriage, procreation,

contraception, family relationships, child rearing, and education.

Flaskamp v. Dearborn Pub. Sch., 385 F.3d 935, 941 (6th Cir. 2004) (internal citations and

quotation marks omitted); see also Seal v. Morgan, 229 F.3d 567, 574–75 (6th Cir. 2000) (“The

list of fundamental rights and liberty interests . . . is short, and the Supreme Court has expressed

very little interest in expanding it.” (citing Washington v. Glucksberg, 521 U.S. 702, 720 (1997)).

“While property interests are protected by procedural due process even though the interest is

derived from state law rather than the Constitution, substantive due process rights are created only

by the Constitution.” Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J.,

concurring) (internal citation omitted):

The Sixth Circuit has never held that the right to maintain public employment is subject to

substantive due process protection, even when the public employee has a protected property

interest in such employment for purposes of procedural due process. See Sutton v. Cleveland Bd.

of Educ., 958 F.2d 1339, 1351 (6th Cir. 1992) (“[P]laintiffs’ statutory right to be discharged only

for cause is not a fundamental interest protected by substantive due process.”); Williams v. City of

Franklin, 586 F.Supp.2d 890, 900 (M.D. Tenn. 2008) (dismissing the plaintiff’s substantive due

process claim premised on a purported “liberty interest and a property interest in continued

employment” with the defendant city, stating: “The Sixth Circuit has repeatedly rejected attempts

to include property interests in employment among the interests protected by substantive due

process.”).

The defendant argues, based on these principles, that it is entitled to summary judgment on

the plaintiff’s substantive due process claim. In response, the plaintiff simply asserts, with no

citation to the law, that he was deprived of “substantive due process secured by the Personnel

Rules and Regulations that apply to Plaintiff’s employment and provided to him through

Tennessee law [and] the Due Process clause . . . as applied to his employment with the City of

Brentwood.” (Doc. No. 46, at 1.)

27

The court finds, as a matter of law, that the plaintiff has no substantive due process right to

continued public employment. The defendant is entitled to summary judgment on this claim as

well.

V. CONCLUSION

For the reasons set forth herein, the defendant’s Motion for Summary Judgment will be

granted. An appropriate Order is filed herewith.

ALETA A. TRAUGER “

United States District Judge