# Drake v. Montgomery County, Tennessee

> District Court, M.D. Tennessee · July 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10438060

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** July 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10438060

## How later opinions describe it (automated extraction)

- explaining that a letter from a final policymaker approving an alleged unconstitutional action after the action occurred did not clearly have “any actual causative effect upon the alleged unconstitutional action.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

RANDY LEE DRAKE, )
)
Plaintiff, )
) NO. 3:19-cv-01037
v. ) JUDGE RICHARDSON
)
MONTGOMERY COUNTY, )
TENNESSEE, )
)
Defendant. )
)

MEMORANDUM OPINION
Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 34,
“Motion”), supported by an accompanying Memorandum of Law. (Doc. No. 39). Plaintiff filed a
response (Doc. No. 40), and Defendant filed a reply (Doc. No. 45). For the reasons stated herein,
Defendant’s Motion will be DENIED as moot. However, the Court will grant summary judgment
to Defendant sua sponte on Plaintiff’s claim for First Amendment retaliation.
FACTUAL BACKGROUND
This case stems from the termination of Plaintiff, Randy Drake, from his employment with
Bi-County Solid Waste Management System (“Bi-County”). (Doc. No. 1 at 2, 9). Bi-County was
established through an Interlocal Agreement between Stewart County, Montgomery County, and
the City of Clarksville1 in 1974. (Doc. No. 41 at 1). The Interlocal Agreement has been amended
or revised several times since the initial agreement was entered in 1974, most recently in 2016.
(Id. at 2). The 2016 version of the Interlocal Agreement notes that it was entered into for the

1 The City of Clarksville opted to terminate its participation in Bi-County in 1994. (Doc. No. 41 at 1).
purpose of Montgomery County and Stewart County “jointly and cooperatively operat[ing]” Bi-
County. (Doc. No. 35-6 at 1). Bi-County is operated through the Bi-County Solid Waste
Management Board (“Board” or “Bi-County Board”) consisting of seven members. (Id.).
Plaintiff began working for Bi-County in 2015 as the landfill manager for the UCAR site.2
(Id.). Bi-County then hired David Graham as Director in 2016. (Id.). At that time, Plaintiff received

a promotion to the position of Assistant Director of Landfill Operations. (Id.).
In 2018 or early 2019, the Bi-County Board began considering the implementation of flow
control. (Id. at 8). Flow control generally refers to the notion that, with respect to waste collected
within the Bi-County region, a hauler must either (i) have it processed at Bi-County facilities or,
if taken elsewhere (ii) pay Bi-County a fee. (Id.). Director Graham was in favor of implementing
flow control, but Plaintiff was against it. (Id. at 9). After flow control became a topic of discussion
during Bi-County Board meetings, Plaintiff was approached by Bi-County Board member Robin
Brandon, the mayor of Stewart County, to explain several aspects of the landfill business, including
flow control, the anatomy of a landfill, and how landfills worked. (Id. at 10). Brandon also

solicitated Plaintiff’s opinion on the flow-control issue. (Id.). Additionally, Brandon and
Montgomery County Commissioner John Gannon (another member of the Board), would ask
Plaintiff about the status of other issues involving Bi-County, such as leachate breakout and how
it would be fixed and how construction was going on the new leachate liner. (Id.).
At a meeting on March 27, 2019, the Bi-County Board voted not to implement flow control.
(Id. at 12). After the meeting, Brandon met with Plaintiff in his office. (Id.). Then, on April 2,
2019, Brandon confronted Graham in Graham’s office, warning him that there were going to be

2 The Court does not see where the Parties have indicated what exactly the “UCAR” site is, but the Court
need not seek clarification on this question, which is immaterial for present purposes.
changes to Bi-County and that Graham would be gone. (Id.). During this confrontation, Brandon
also suggested that Graham should resign from Bi-County. (Id. at 13). In turn, Graham requested
that IT provide him the phone records and emails of Plaintiff (and two other employees). (Id., Doc.
No. 35-2 at 27). When he received the records, Graham discovered that around the same time as
Brandon’s confrontation with Graham, Plaintiff had been communicating with Brandon and

Gannon, as well as a local waste hauler, Queen City Waste. (Id.).
Graham held a meeting with Plaintiff on April 18, 2019 at the main landfill office for Bi-
County. (Id. at 14). After Graham asked a couple of questions, Plaintiff left the meeting, got in his
truck, and drove to a leachate lagoon. (Id.). Graham called Plaintiff, requesting he return to the
meeting. (Id.). Plaintiff eventually did return but refused to continue the meeting, before once again
leaving the office. (Id.). Graham called Plaintiff once more, advising him that if he did not return
and continue the meeting, then he would be terminated for insubordination. (Id. at 15). Plaintiff
declined to return and was subsequently terminated. (Id.). The meeting and Plaintiff’s ultimate
termination were witnessed by Montgomery County Human Resources Director, Tim Swaw. (Doc.

No. 44 at 2).
PROCEDURAL BACKGROUND
Plaintiff filed the present action on November 19, 2019, bringing a federal claim under 42
U.S.C. § 1983 for First Amendment retaliation and a state-law claim under Tennessee’s Public
Employee Political Freedom Act (“PEPFA”). (Doc. No. 1 at 10-11). On May 7, 2021, Defendant
filed the present Motion, seeking summary judgment on each of Plaintiff’s claims. (Doc. No. 34).
Plaintiff responded (Doc. No. 40) and Defendant replied (Doc. No. 45).
On March 4, 2022, the Court issued an order (Doc. No. 47) informing Plaintiff that the
Court was considering sua sponte dismissal of Plaintiff’s Section 1983 claims under Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978), which limits the circumstances under which a
municipality (as opposed to its associated individuals) can be held liable under Section 1983. In
accordance with Sixth Circuit practice with respect to potential sua sponte dismissals, the Court
provided Plaintiff the opportunity to file a supplemental brief opposing the Court’s proposed
course of action. (Doc. No. 47 at 2 (citing Shelby Cnty. Health Care Corp. v. S. Council of Indus.

Workers Health & Welfare Tr. Fund, 203 F.3d 926, 931 (6th Cir. 2000))). Plaintiff filed a
supplemental brief on March 31, 2022. (Doc. No. 50). Accordingly, the issue is ripe for review.
STANDARD
Summary judgment is appropriate where there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “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). 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. See id. at 248.
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(c) “if its proof or disproof might affect
the outcome of the suit under the governing substantive law.” Anderson, 477 U.S. at 248. A
genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018).
Accordingly, Courts (appropriately) at times refer interchangeably to a party being able to raise a
genuine issue as to fact and a reasonable jury being able to find in the party's favor as to that fact,
and this Court does likewise.
It is typically stated that the party bringing the summary judgment motion (the movant) has
the initial burden of identifying portions of the record that demonstrate the absence of a genuine
dispute over material facts. See, e.g. Johnson v. Ford Motor Co., 13 F.4th 493, 502 (6th Cir. 2021)
(“At the summary judgment stage, the moving party bears the initial burden of identifying those
parts of the record which demonstrate the absence of any genuine issue of material fact.” (quoting

White v. Baxter Healthcare Corp., 533 F.3d 381, 389–90 (6th Cir. 2008))); Pittman v. Experian
Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018). But this is somewhat inexact in the
aftermath of 2010 amendments to Rule 56. The movant’s initial burden actually is to demonstrate
the absence of a genuine issue of material fact, and not necessarily to so demonstrate specifically
by referencing portions of the record. True, prior to the 2010 amendments, referencing portions of
the record seemed to be the only way to make such a demonstration, and even today that is the
primary way to make such a demonstration.3 But the 2010 amendments added, inter alia Rule
56(c)(1)(B), which “recognizes that a party need not always point to specific record materials.”
Rule 56 2010 Amendment Advisory Committee Note.

Under Rule 56(c)(1)(B), the movant actually has another available means—an alternative
to citing materials in the record—for demonstrating the absence of a genuine issue of material
fact. Specifically, the moving party may meet its initial burden (to indicate the absence of a genuine
issue of material fact) by “show[ing]”—even without citing materials of record—that the

3 Under current Rule 56, a party asserting that a fact cannot be or genuinely is disputed—i.e., a party seeking
summary judgment and a party opposing summary judgment, respectively—still can (and typically does)
attempt to support the assertion by citing to materials in the record, including, but not limited to, depositions,
documents, affidavits or declarations. See Fed. R. Civ. P. 56(c)(1)(A).
nonmovant “cannot produce admissible evidence to support [a material] fact” (for example, the
existence of an element of a nonmovant plaintiff’s claim). See Fed. R. Civ. P. 56(c)(1)(B).4
If the summary judgment movant meets that burden, then in response the non-moving party
must set forth specific facts showing that there is a genuine issue for trial. Pittman, 901 F.3d at
628.

DISCUSSION
The Court will first consider Monell liability and whether or not it will grant summary
judgment sua sponte on the issue. If the Court determines that Plaintiff has raised a genuine dispute
as to his ability to show Monell liability, then it will proceed to the arguments for summary
judgment proposed by Defendant in its Motion.
I. Plaintiff’s Claim for First Amendment Retaliation Will Be Dismissed by the Court
Sua Sponte

For municipalities, like Defendant, to be liable under Section 1983, a plaintiff must make
“a showing that the alleged misconduct is the result of a policy, statement, regulation, decision or
custom promulgated by [the county] or its agent.” Ward v. Reynolds, No. 3:20-CV-00981, 2021
WL 3912803, at *3 (M.D. Tenn. Sept. 1, 2021) (citing Monell, 436 U.S. at 690-91).
A plaintiff can make a showing of an illegal policy or custom by demonstrating one
of the following circumstances: “(1) the existence of an illegal official policy or
legislative enactment; (2) that an official [or official body] with final decision
making authority ratified illegal actions; (3) the existence of a policy of inadequate
training or supervision; or (4) the existence of a custom of tolerance or acquiescence
of federal rights violations.”

4 More specifically, Rule 56(c)(1)(B), as added in 2010, provides in pertinent part that a “party asserting
that a fact cannot be or is genuinely disputed must support the assertion by showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). This means, specifically in the case
of a party asserting that a fact cannot be genuinely disputed (which typically would be the summary
judgment movant), that its assertion can be supported by “show[ing]”—even without citing materials of
record—that the adverse party (typically the non-movant) cannot produce admissible evidence to support
the fact.
Id. at *3 (quoting Burgess v. Fisher, 735 F.3d 462, 478 (6th Cir. 2013)).
Because the Court is raising this issue sua sponte, there is no “moving party” who would
have to meet an initial burden of showing a lack of genuine dispute as to one of the elements.
Instead, the Court will identify evidence from the record that led it to initially question whether
Plaintiff could successfully show Monell liability via any of the four possible avenues. Regarding

the potential avenue for showing an illegal policy or custom,5 the Court notes that the 2016 version
of the Interlocal Agreement states, “The Board shall review annually and adopt and implement
annually the Montgomery County Personnel Policy.” (Doc. No. 35-6 at 3). For its part, the
Montgomery County Personnel Policy states, “All employment with Montgomery County
Government is ‘at-will.’ What this means is that either the employee or Montgomery County
Government may terminate the employment relationship at any time for any reason, but shall not
be terminated for an illegal purpose.” MONTGOMERY COUNTY EMPLOYEE PERSONNEL POLICY
MANUAL, 13 (Montgomery County, Tennessee, May 13, 2019) (emphasis added). Bi-County’s

5 In the present case, where the alleged unconstitutional act is Plaintiff’s termination, the Court believes
that the relevant “policy” to consider is employment policy as a whole (as opposed to a narrower policy,
such as a subset of employment policy as along the lines of “termination policy”). Though the Court does
not discern the presence of any termination policy (separate from an overall employment policy) in this
case, in any event applicable case law suggests that the focus in this kind of context is on who sets
employment policy as a whole, and not on who sets termination-of-employment policy either generally or
in specific situations (which conceivably could be someone or something different). See Pembaur v. City
of Cincinnati, 475 U.S. 469, 484 (1986) (“[T]he County Sheriff may have discretion to hire and fire
employees without also being the county official responsible for establishing county employment policy.”
(emphasis added)); see also Binelli v. Charter Twp. of Flint, 488 F. App'x 95, 99 (6th Cir. 2012) (“Miller
could have reasonably believed that she was entitled . . . to fire the deputy supervisor who served only at
her ‘pleasure,’ MICH. COMP. LAWS § 41.61(2), but most employment policy in the Township is set by
the Board. Miller's authority to make policy on employment matters is thoroughly constrained.” (emphasis
added)); O'Connor v. Redford Twp., No. 09-10792, 2009 WL 2488095, at *4 (E.D. Mich. Aug. 13, 2009)
(“Defendants say that Kobylarz did not have the final authority to make the decision to terminate O'Connor
. . . As in the example the Supreme Court gave in Pembaur, if the Board delegated its power to establish
final employment policy to Supervisor Kobylarz, her decision would represent Township policy and could
give rise to municipal liability.” (emphasis added)).
adoption of the Montgomery County Personnel Policy shows there is no “illegal official
[employment] policy” Additionally, the Court does not perceive anywhere in the record evidence
of a “custom of tolerance . . . to federal rights violations” within Bi-County. It is undisputed that
Plaintiff himself “never reported any wrongdoing or illegal activity at Bi-County and never felt he
needed to do so” (Doc. No. 41 at 11), so Plaintiff can hardly claim that he was aware during his

employment of incidents suggesting a custom of tolerance for such occurrences within Bi-County.
And the record does not suggest in any way that Plaintiff thereafter somehow obtained, through
formal discovery or otherwise, evidence of such custom.
Regarding the remaining two avenues for establishing Monell liability (a final decision-
maker ratifying a decision or a policy of inadequate training or supervision), the Court notes that
evidence in the record suggests these also are not viable options. The 2016 Interlocal Agreement
notes that the Bi-County Board “shall have: (i) general supervision and control of the employment
of clerical, management, and supervisory, and all other personnel necessary and incident to the full
and complete administration of the solid waste disposal system.” (Doc. No. 35-6 at 3).

Additionally, the Agreement says that “[t]he Board shall employ and appoint a Director who shall
be a person qualified for training and experience for supervision over the maintenance and
operation of the facilities and services herein.” (Id. at 4). During Director Graham’s deposition, he
stated that Tim Swaw had been present at his meeting with Plaintiff because Bi-County’s personnel
policy mirrors Montgomery County’s policy, and he was “just trying to make sure that [he] was
staying within those guidelines.” (Doc. No. 35-2 at 36). Finally, Plaintiff himself acknowledges in
his supplemental brief on the Monell issue that Director Graham’s power to handle Bi-County
employees was constrained by the Montgomery County Personnel Policy. (Doc. No. 50 at 5).
These facts suggest to the Court that there is no genuine dispute as to either (i) whether a final
decision-maker ratified the (allegedly) illegal act of terminating Plaintiff, or (ii) whether there was
a policy of inadequate supervision within Bi-County.
So the record suggests preliminarily an absence of a genuine issue of material fact as to
whether there is a basis under Monell for Defendant to be held liable under Section 1983.
Accordingly, the burden shifts to Plaintiff to show that there is a genuine dispute as to the existence

of at least one of the four possible avenues for establishing Monell liability. Plaintiff’s
supplemental brief (Doc. No. 59) seeks to meet that burden by showing that Plaintiff’s allegedly
illegal termination was ratified by a final policymaker.6 In this case, Plaintiff argues that Director
Graham acted as the final policymaker of Montgomery County employment policy with respect to
ratifying his own action of terminating Plaintiff (thereby assuming the role of both action-taker
and final decision-maker). (Id. at 2). Plaintiff first states that Montgomery County is heavily
involved in Bi-County’s personnel issues. (Id. at 4). To illustrate such, Plaintiff points to the

6 Although “policymaking” and “decision-making” generally are not necessarily the same thing, in the
instant context courts (including those cited herein) tend to use the term “final policymaker” synonymously
with “an official with final decision-making authority.” See Burgess v. Fischer, 735 F.3d 462, 479 (6th Cir.
2013) (using the terms “policymaker” and “final decision-maker” interchangeably); Umfress v. City of
Memphis, Tennessee, No. 20-6115, 2021 WL 2828023, at *3 (6th Cir. July 7, 2021) (“Both are
policymaking officials with final decision-making authority.”). For simplicity purposes, the Court will
proceed with its analysis by using the term “final policymaker.”
It is important to clarify what kind of “decision-making authority” an official (or official body)
must have to be the “final policymaker” in this context, since many cases involve more than one kind of
decision-making authority. As noted below, municipal liability arises only where the decisionmaker
possesses final authority to establish municipal policy with respect to the action ordered (i.e., the decision
made). So the term “final policymaker” is synonymous with “official (or official body) with final decision-
making authority” regarding municipal policy with respect to the decision at issue—as opposed to, for
example, decision-making authority with respect to the decision at issue. This is a distinction with a
difference where, as in the present case, there was an authorized decision-maker (Graham) with respect to
the particular decision at issue (to terminate Plaintiff) that was not the same as the final decision-maker
with respect to municipal policy regarding the termination that was ordered. It is probably analytically
useful to think of Graham as being the action-taker (with respect to the termination of Plaintiff) but not
necessarily (and in this case, not actually) the decision-maker (with respect to municipal policy concerning
employment, an area that covers the action at issue).
affidavit of Swaw, who notes that Montgomery County provided HR services to Bi-County as an
accommodation but had “no authority over Bi-County or its Executive Director David Graham.”
(Doc. No. 35-19 at 2). Swaw also notes that occasionally Graham would ask for Swaw’s opinion
on personnel decisions he (Graham) was considering, including whether he should meet with
Plaintiff about his concerns that Plaintiff was not “looking out for the best interest of Bi-County.”

(Id. at 3).
Plaintiff next argues that the Bi-County Director (here, Graham) “is given wide latitude,
and authority to fire employees if the need arises.” (Doc. No. 50 at 4). As support for this statement,
Plaintiff cites Defendant’s responses to interrogatories, which note that the Director of Bi-County
is responsible for day-to-day activities and handling employees, but ultimately “answer[s] directly
to the Board, not to either Montgomery County or Stewart County.” (Doc. No. 40-3 at 1–2).
Plaintiff also cites to the deposition of Graham, where he states, “As the executive director, I was
in charge of all aspects of Bi-County Solid Waste.” (Doc. No. 35-2 at 7–8). Additionally, Plaintiff
states that Human Resources Director Swaw and Montgomery County Mayor Jim Durrett

“acquiesced to and approved of [Plaintiff’s] termination, not only leading up to such firing, but
also after the fact.” (Doc. No. 50 at 5). As evidence of this, Plaintiff cites to the following:
Defendant’s interrogatory response that notes Director Graham discussed his concerns about
Plaintiff’s loyalty with Mayor Durrett, as well as Bi-County Chairman Jay Albertia (Doc. No. 40-
3 at 12); the fact that Mayor Durrett was aware that Director Graham had requested copies of
Plaintiff’s emails (Doc. No. 40-4 at 4); and Plaintiff’s own affidavit where he notes that the
“Personnel Action Form” regarding his termination bears the signatures of Graham, Swaw, Durrett
and the Montgomery County Director of Accounts and Budgets. (Doc. No. 40-1 at 2). Finally,
Plaintiff cites to a series of emails between Director Graham and Swaw, where the two discuss
Graham’s issues with Plaintiff and his desire to discipline/fire him for “subverting” Graham’s work
as Director. (Doc. Nos. 50-1, 50-2, 50-3).
To determine whether Plaintiff has raised a genuine dispute as to whether his termination
was “ratified” by a final policymaker, the Court must consider what constitutes a final policymaker
for purposes of this particular basis of municipal liability, as well as what constitutes ratification.

In Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), the Supreme Court explained:
Municipal liability attaches only where the decisionmaker possesses final authority
to establish municipal policy with respect to the action ordered. The fact that a
particular official—even a policymaking official—has discretion in the exercise of
particular functions does not, without more, give rise to municipal liability based
on an exercise of that discretion. See, e.g., Oklahoma City v. Tuttle, 471 U.S., at
822–824, 105 S. Ct., at 2435–2436.11 The official must also be responsible for
establishing final government policy respecting such activity before the
municipality can be held liable. Authority to make municipal policy may be granted
directly by a legislative enactment or may be delegated by an official who possesses
such authority, and of course, whether an official had final policymaking authority
is a question of state law . . . We hold that municipal liability under § 1983 attaches
where—and only where—a deliberate choice to follow a course of action is made
from among various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in question.

Id. at 481–83. The Court went on to offer an instructive illustration:

Thus, for example, the County Sheriff may have discretion to hire and fire
employees without also being the county official responsible for establishing
county employment policy. If this were the case, the Sheriff's decisions respecting
employment would not give rise to municipal liability, although similar decisions
with respect to law enforcement practices, over which the Sheriff is the official
policymaker, would give rise to municipal liability. Instead, if county employment
policy was set by the Board of County Commissioners, only that body's decisions
would provide a basis for county liability. This would be true even if the Board left
the Sheriff discretion to hire and fire employees and the Sheriff exercised that
discretion in an unconstitutional manner; the decision to act unlawfully would not
be a decision of the Board. However, if the Board delegated its power to establish
final employment policy to the Sheriff, the Sheriff's decisions would represent
county policy and could give rise to municipal liability.

Id. at 483 n.12 (emphasis added). This case makes clear to the Court that Director Graham cannot
be considered an official policymaker of Montgomery County for purposes of the theory on which
Plaintiff relies.7 Similar to the Sheriff in Pembaur, Director Graham has been given the authority
to hire and fire Bi-County employees, but he must act in accordance with Montgomery County’s
Personnel Policy that the Bi-County Board voted to adopt. There is no evidence the Bi-County
Board ever “delegated its power to establish final employment policy” to Director Graham, and
therefore, no evidence that Graham’s decisions “give rise to municipal liability.”8

Plaintiff makes the (albeit brief) alternative argument that Montgomery County Mayor Jim
Durrett and HR Director Tim Swaw, as (alleged) final policymakers for Montgomery County
employment policy, ratified Director Graham’s decision to terminate Plaintiff. This argument
proposes a slightly different scenario in which Director Graham would be the action-taker with
respect to Plaintiff’s termination, but not the policymaker with respect to Montgomery County
employment policy. For this theory to give rise to municipal liability, Director Graham’s action to
terminate Plaintiff would have to have been approved (ratified) by Durrett and Swaw, who
themselves would need to have been the final policymakers for county employment policy.
The Sixth Circuit dealt with a similar question in Feliciano v. City of Cleveland, 988 F.2d

649 (6th Cir. 1993), which involved a police chief allegedly violating the Fourth Amendment when
he subjected police cadets to a surprise drug test. In Feliciano, the Sixth Circuit said,
The plaintiffs next contend that a final policymaker ratified Chief Hanton’s
actions. The plaintiffs correctly note that “[i]f the authorized policymakers approve

7 Director Graham is, instead, the “action-taker” in this sense suggested in a footnote above, which draws
a clear distinction between the final policymaker and the action-taker.
8 As support for the notion that Graham constituted a final policymaker for Montgomery County, Plaintiff
cites to Williams v. Schismenos, 258 F. Supp. 3d 842, 864 (N.D. Ohio 2017), which in turn cites to
Monistere v. City of Memphis, 115 F. App’x 845 (6th Cir. 2004). In Monsitere, the Sixth Circuit determined
that a police sergeant (who allegedly violated the constitutional rights of two police officers when he
required them to submit to a strip search), was a final policymaker for the City of Memphis because his
“decision was (1) final, (2) not reviewable, and (3) unconstrained by the existing policies and practices of
his supervisory officers.” Id. at 853. Monsitere is clearly distinguishable from the present case, where
Director Graham’s actions were both reviewable by the Bi-County Board and constrained by the
Montgomery County Personnel Policy, which the Bi-County Board had adopted.
a subordinate’s decision and the basis for it, their ratification would be chargeable
to the municipality because their decision is final” policy. Praprotnik, 485 U.S. at
127, 108 S. Ct. at 926 (plurality opinion). However, mere acquiescence in a single
discretionary decision by a subordinate is not sufficient to show ratification. Id.
Otherwise, the City would be liable for all of the discretionary decisions of its
employees, and this would be indistinguishable from respondeat superior liability.

In the case at bar, Chief Hanton testified that he informed Turner, the
Director of Public Safety, of his intention to drug test the cadets before the test was
given. The evidence also shows that Turner fired the police recruits based upon the
results of the drug test. However, the plaintiffs have shown no evidence that Turner
expressly approved Hanton's decision or that he knew the manner in which the drug
test was conducted. Although Turner may have acquiesced in the drug test, this is
not enough to survive summary judgment. Ratification of a subordinate's action
requires more than acquiescence—it requires affirmative approval of a particular
decision made by a subordinate. See Praprotnik, 485 U.S. at 130, 108 S. Ct. at 927
(plurality opinion). Therefore, the plaintiffs must offer proof that an official charged
with making final policy regarding drug testing of police expressly approved Chief
Hanton's actions. Id. At best, the evidence offered by the plaintiffs indicates that
Turner acquiesced in Hanton's decisions regarding drug testing, but there is no
showing that Turner or any other official expressly ratified the decision.

Id. at 656.
The only evidence to which Plaintiff points that could conceivably suggest Mayor Durrett
and Swaw ratified Graham’s termination of Plaintiff is evidence that they both signed Plaintiff’s
Personnel Action Form detailing his termination. (Doc. No. 40-1 at 13). Plaintiff additionally
places considerable emphasis on the fact that both Durrett and Swaw were aware of Graham’s
issues with Plaintiff, and that Swaw attended the meeting between Graham and Plaintiff. (Doc.
No. 40-3 at 12). However, the Court does not believe that any of this evidence demonstrates
express approval by either Swaw or Durrett of Plaintiff’s termination. Moreover, it does not appear
to the Court that Swaw or Mayor Durrett alone would be the relevant final policymaker for
employment policy at Bi-County. The overwhelming amount of evidence, including the 2016
Interlocal Agreement (Doc. No. 35-6 at 3–4), the Defendant’s responses to interrogatories (Doc.
No. 40-3 at 1–2), Director Graham’s deposition (Doc. No. 35-2 at 36), and Swaw’s affidavit (Doc.
No. 35-19 at 2–3), show that the entity responsible for establishing final employment policy at Bi-
County was the Bi-County Board. While Durrett did serve on the Board, his signature alone could
not ratify any action, as the 2016 Interlocal Agreement notes that “[a] concurring vote of a majority
of all directors [on the Board] shall be necessary for the exercise of [] powers.” (Doc. No. 35-6 at
3). And one individual does not constitute the majority of a seven-member board. (Id.).

Moreover, the Court notes that even if Plaintiff could show that a final policymaker ratified
Director Graham’s action of terminating Plaintiff, Plaintiff would need to show additionally that
“the ratification was a ‘moving force’ in causing the constitutional violation.” Feliciano, 988 F.2d
at 656 n.6. This requires that a plaintiff “demonstrate a direct causal link between the [final
policymaker’s] action and the deprivation of federal rights.” Bd. of Cnty. Comm'rs of Bryan Cnty.,
Okl. v. Brown, 520 U.S. 397, 397 (1997). Plaintiff has cited to no evidence whereby a jury could
find that the actions of anyone or anything (other than Graham or Plaintiff), final policymaker or
not, directly caused the termination in question. It is undisputed that Plaintiff was given the
opportunity to return to the meeting with Graham or face termination for insubordination, and he

chose to not return. The mere fact that his termination may have been subsequently approved by a
(alleged) final policymaker does not mean that the final policymaker’s ratification was the
“moving force” for the alleged constitutional violation. See Feliciano, 988 F.2d at 656 n.6 (noting
that even if there was a post-hoc ratification by a final policymaker, there would need to be a
separate showing of a causal connection between the ratification and the alleged constitutional
violation); Vandiver v. Meriwether Cnty., Georgia, 325 F. Supp. 3d 1321, 1333 (N.D. Ga. 2018)
(explaining that a letter from a final policymaker approving an alleged unconstitutional action after
the action occurred did not clearly have “any actual causative effect upon the alleged
unconstitutional action.”); Coffee v. City of Oklahoma City, Oklahoma, No. CIV-08-239-W, 2009
WL 10669175, at *5 (W.D. Okla. Aug. 4, 2009) (“[Plaintiff’s] ratification theory fails because the
City’s alleged [post-hoc] ratification did not under the circumstances of this case cause the
constitutional violations about which [plaintiff] has complained.”). For that reason, the Court finds
Plaintiff cannot raise a genuine dispute as to whether Defendant, Montgomery County, is liable as
a municipality under Monell.

II. Plaintiff’s State Law Claim for Violations of PEPFA Will Be Dismissed Without
Prejudice.

Plaintiff’s second claim is a state-law claim for “violations of PEPFA.” (Doc. No. 1 at 11).
A district court may decline to exercise supplemental jurisdiction over a claim if (1) the claim
raises a novel or complex issue of state law, (2) the claim substantially predominates over the claim
or claims over which the district court has original jurisdiction, (3) the district court has dismissed
all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are
other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c); see also Kinman v.
Burnop, No. 3:18-cv-00809, 2020 WL 707583, at *6 (M.D. Tenn. Feb. 12, 2020).
When no claims over which the court has original jurisdiction remain, courts usually
decline to exercise supplemental jurisdiction over the remaining state-law claims. See Stevens v.
Gooch, 48 F. Supp. 3d 992, 1007 (E.D. Ky 2014) (in usual case in which all federal law claims
have been eliminated before trial, balance of factors point toward declining to exercise jurisdiction
over remaining state-law claims); Carpenter v. Lane Coll., Case No. 2:17-cv-2672, 2019 WL
845275, at * 4 (W.D. Tenn. Feb. 6, 2019) (having granted summary judgment on plaintiff’s sole
federal claim, court followed the “usual Sixth Circuit practice” and declined to exercise
supplemental jurisdiction over plaintiff’s remaining state law claims); see also Martinez-
Rodriguez v. Giles, 391 F. Supp. 3d 985, 1000-01 (D. Idaho 2019) (after granting summary
judgment on plaintiffs’ federal claims, court “no longer has federal question jurisdiction, and, in
turn, supplemental jurisdiction over any state law claims dissolves”), cited in Kinman, 2020 WL
707583, at *6.
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.” Wilkins v. Tennessee Dep’t of Childs.’
Servs., No. 3:18-cv-00102, 2018 WL 6413666, at *5 (M.D. Tenn. Dec. 6, 2018) (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). “In determining whether to retain
jurisdiction over state-law claims, a district court should consider and weigh several factors,
including the ‘values of judicial economy, convenience, fairness, and comity.’” Gamel v. City of
Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010) (quoting Carnegie-Mellon, 484 U.S. at 350).
The basis for jurisdiction in this case is federal-question jurisdiction, and because the Court
is granting summary judgment sua sponte on Plaintiff’s federal claim, the Court will no longer
have original jurisdiction over any claims upon which the Court’s (supplemental) jurisdiction over

the state-law claim was based. For that reason, the Court declines to exercise supplemental
jurisdiction henceforward over Plaintiff’s state-law claim, and it will be dismissed without
prejudice.
CONCLUSION
For the reasons discussed above, Defendant’s Motion (Doc. No. 34) will be DENIED as
moot. However, the Court will enter summary judgment sua sponte in Defendant’s favor as to
Plaintiff’s Section 1983 claim for First Amendment retaliation (Count I).
Additionally, in the Court’s discretion, Plaintiffs state-law claim under PEPFA (Count ID)
will be DISMISSED without prejudice pursuant to 42 U.S.C. § 1367(c), and Plaintiff may file
them in Tennessee state court if he wishes.’
An appropriate order will be entered.

ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

? The Court offers no opinion regarding the extent to which such claims would be successful if filed in state
court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10438060. Public record. Not legal advice.