McGowan

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

HENRY TY MCGOWAN, )

)

Plaintiff, )

)

v. ) No. 3:24-cv-00161

)

CITY OF LAVERGNE, TENNESSEE, )

)

Defendant. )

MEMORANDUM OPINION

This case arises from Henry Ty McGowan’s (“McGowan”) termination from the La

Vergne Police Department (“LVPD”) after he complained about LVPD promotion practices. He

brings Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and

Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq. (“THRA”) race discrimination

and retaliation claims against the City of Lavergne, Tennessee (“City”). Before the Court is the

City’s Motion for Summary Judgment (Doc. No. 22), which is ripe for review. (see Doc. Nos. 23,

29, 30–31, 33–34). For the following reasons, the City’s Motion (Doc. No. 22) will be granted.

I. BACKGROUND AND UNDISPUTED FACTS1

McGowan, an African American man, began his employment with the LVPD in 2003.

(Doc. No. 30 ¶ 1; Doc. No. 33 ¶ 1). In 2007, McGowan was disciplined following an internal

investigation for, among other things, admittedly having sex on duty, being untruthful, and

obstructing the LVPD’s investigation. (Doc. No. 30 ¶ 2). As a result, he was demoted, suspended,

1 The undisputed facts in this section are drawn from the undisputed portions the responses to the

parties’ statement of facts (Doc. Nos. 30, 33), the exhibits and depositions submitted in connection

with the summary judgment briefing, and portions of the Complaint (Doc. No. 1) that are not

contradicted by the evidence in the record.

and warned that he would be dismissed if a similar incident happened again. (Id. ¶ 3). Years after

that discipline, in 2021, McGowan was promoted from officer to sergeant. (Id. ¶ 4).

Before the City’s elections in November 2022, McGowan “nonchalantly” spoke to Mayor

Jason Cole (“Mayor Cole”) about concerns he had with LVPD Chief Davis, and his decisions. (Id.

¶ 5). McGowan, in his own words, was “very vague” in his conversation with Mayor Cole, and

“didn’t provide anything specific” about what his concerns were with Chief Davis’s conduct. (Id.

¶ 6).

The next month, Mayor Cole raised unrelated concerns about conduct at the LVPD. (Doc.

No. 23-5). Specifically, on December 12, 2022, he reported to Director of Human Resources,

Andrew Patton (“Patton”), on the following:

[H]e had received information from a source (name unknown)2 reporting that

Officer Maegan Hall [(“Hall”)] was having intimate relationships with other

members of the La Vergne Police Department. Specifically[,] with Sergeant Lewis

Powell [(“Powell”)], Officer Patrick Magliocco [(“Magliocco”)] (including a 3-

way with his wife), and Officer Larry Holladay [(“Holladay”)]. Mayor Cole also

mentioned a “girls gone wild” hot tub party at Sergeant Eric Staats house.

(Id. at 1). In response, Patton opened an investigation into the alleged scandal that included

investigation (“HR investigation”) into the following individuals: Hall, Magliocco, Powell,

Holladay, Juan Lugo (“Lugo”), McGowan, Detective Seneca Shields (“Shields”), and Gavin

Schoeberl (“Schoeberl”). (Id.). Patton’s investigation focused on the following allegations:

2 While not material to the Court’s decision, the source of this information is in dispute. On one

hand, Powell’s report on the investigation states that McGowan eventually became known as the

“unknown” source that provided this information to Mayor Cole. (See Doc. No. 23-5 at 1). On

the other, McGowan asserts that it was actually Commissioner Davidson that had reported this

information to Mayor Cole. (Doc. No. 32-1 at 15:3–9).

Sexual Relationships - unreported: Hall engaged Magliocco in a sexual

relationship that was not reported to leadership (per Employee Handbook 3.3 - page

13).3

Sexual Relationships - unreported: Hall engaged Powell in a sexual relationship

that was not reported to leadership (per Employee Handbook 3.3 - page 13).

Sexual Relationships - unreported: Hall engaged Holladay in a sexual

relationship that was not reported to leadership (per Employee Handbook 3.3 - page

13).

Sexual Relationships - unreported: Hall engaged Lugo in a sexual relationship

that was not reported to leadership (per Employee Handbook 3.3 - page 13).

Sexual Relationships - unreported: Hall engaged McGowan in a sexual

relationship that was not reported to leadership (per Employee Handbook 3.3 - page

13).

Sexual Relationships - unreported: Hall engaged Shields in a sexual relationship

that was not reported to leadership (per Employee Handbook 3.3 - page 13).

Sexual Activity on duty: Hall engaged Powell in sexual acts while on duty and

inside city owned property.

Sexual Activity on duty: Hall engaged Shields in sexual acts while on duty and

inside city owned property.

Sexual Harassment: Hall sent explicit photos and videos to multiple co-workers

including McGowan, Holladay, Magliocco, Shields, and Schoeberl (per Employee

Handbook 9.2 - page 51).

Sexual Harassment: Male members sent explicit photos to Hall (per Employee

Handbook 9.2 - page 51).

Workplace Violence: McGowan came into the HR office and put his hands around

the neck of Smith. This act was witnessed by Presley (per Employee Handbook 9.3,

- page 51 & 9.8 - page 55).

Intimidation with intent to interfere with Investigation: Powell and McGowan

conspired to be untruthful during the investigation. (per Employee Handbook 9.7 -

page 55).

3 Based on the LVPD Employee Handbook and other investigative materials, the references to

“Employee Handbook 3.3” appear to be in error, and should instead say “Employee Handbook

3.4.” (See generally Doc. No. 23-5 at 6–10).

(Doc. No. 23-5 at 1–2). These allegations implicated possible violations of Sections 3.4, 9.2, 9.3,

9.7, and 9.8 of the LVPD Employee Handbook, which state in relevant part:

Section 3.4, Personal Relationships:

If a personal, romantic, or intimate relationship is established between two or more

employees post-hire, it is the responsibility and obligation of the employees

involved to disclose the existence of the relationship to the (supervisor/ manager/

city administrator/ human resources). When a conflict or potential conflict arises

due to the relationship affecting employment, the city reserves the right to make

any and all employment decisions in the best interest of the city.

Section 9.2, Sexual Harassment:

Sexual harassment, which is harassment directed at an individual because of his or

her gender, is one form of harassment prohibited under this policy. The City of La

Vergne will not tolerate sexual harassment and prompt action will be taken to

investigate and resolve sexual harassment complaints.

Sexual harassment occurs when submission to sexual advances is a condition of

employment; when submission to or rejection of sexual advances is the basis of an

employment decision; or when the conduct of another based on gender has

unreasonably interfered with an affected person's work performance or created an

intimidating, hostile, or offensive work environment.

Sexual harassment can be conduct directed toward a man or a woman by either sex

and includes the following behavior:

1. Unwanted physical contact or conduct of any kind, including sexual

flirtations, touching, advances or propositions;

2. Verbal harassment of a sexual nature, such as lewd comments, sexual

jokes or references, and offensive personal references;

3. Demeaning, insulting, intimidating or sexually suggestive comments

about or directed to an individual based on his or her gender;

4. The display in the workplace of demeaning, insulting, intimidating, or

sexually suggestive objects, pictures or photographs;

5. Demeaning insulting, intimidating or sexually suggestive written,

recorded or electronically transmitted materials (such as email, instant

message, and Internet materials)

Any employee who believes that an individual's actions or words in the workplace

constitute unwelcome sexual harassment (or any other form of harassment or

discrimination described in this Section) has a responsibility to report the situation

as soon as possible.

Section 9.3, Abuse Conduct Prevention Policy:

The City has enacted this policy pursuant to the guidelines set forth in Tennessee

Code Annotated, Section 50-1-503(b), to address and prevent abusive conduct in

the workplace.

A. Statement of Commitment, Values, and Purpose

The City is firmly committed to a workplace free from abusive conduct as defined

herein. We strive to provide high quality products and services in an atmosphere of

respect, collaboration, openness, safety and equality. All employees have the right

to be treated with dignity and respect. All complaints of negative and inappropriate

workplace behaviors will be taken seriously and followed through to resolution.

Employees who submit complaints pursuant to this policy will not suffer negative

consequences for reporting others for inappropriate behavior. This policy applies

to all full-time and part-time employees of the company. This policy applies to any

sponsored program, event or activity including, but not limited to, sponsored

recreation programs and activities and to the performance by officers and

employees of their employment related duties. The policy includes electronic

communications by any employee.

B. Definition of Abusive Conduct

Abusive conduct includes acts or omissions that would cause a reasonable person,

based on the severity, nature, and frequency of the conduct, to believe that an

employee was subject to an abusive work environment, which can include but is

not limited to

• Repeated verbal abuse in the workplace, including derogatory remarks,

insults, and epithets;

• Verbal, nonverbal, or physical conduct of a threatening, intimidating, or

humiliating nature in the workplace; or

• The sabotage or undermining of an employee's work performance in the

workplace.

A single act generally will not constitute abusive conduct, unless such conduct is

determined to be severe and egregious.

Abusive conduct does not include

• Disciplinary procedures in accordance with adopted policies of the

company;

• Routine coaching and counseling, including feedback about and correction

of work performance;

• Reasonable work assignments, including shift, post, and overtime

assignments;

• Individual differences in styles of personal expression;

• Passionate, loud expression with no intent to harm others;

• Differences of opinion on work-related concerns; or

• The non-abusive exercise of managerial prerogative.

C. Employer Responsibility

Supervisors and others in positions of authority have a particular responsibility to

ensure that healthy and appropriate behaviors are exhibited at all times and that

complaints to the contrary are addressed in a timely manner.

Supervisors will

• provide a working environment as safe as possible by having preventative

measures in place and by dealing immediately with threatening or

potentially violent situations;

• provide good examples by treating all with courtesy and respect;

• ensure that all employees have access to and are aware of the abusive

conduct prevention policy and explain the procedures to be followed if a

complaint of inappropriate behavior at work is made;

• be vigilant for signs of inappropriate behaviors at work through

observation and information seeking, and take action to resolve the behavior

before it escalates; and

• respond promptly, sensitively and confidentially to all situations where

abusive behavior is observed or alleged to have occurred.

D. Employee Responsibility

Employees shall treat all other employees with dignity and respect. No employee

shall engage in threatening, violent, intimidating or other abusive conduct or

behaviors. Employees are expected to assume personal responsibility to promote

fairness and equity in the workplace and report any incidents of abusive conduct in

accordance with this policy. You should report all incidents of abusive conduct

whether you are the target of such conduct, or whether you observe others engaging

in or being subjected to such conduct. Employees should co-operate with

preventative measures introduced by supervisors and recognize that a finding of

unacceptable behaviors at work will be dealt with through appropriate disciplinary

procedures.

Section 9.7, Obligation of Employees:

Employees are obligated to report instances of harassment. Employees are also

obligated to cooperate in every investigation of harassment. The obligation

includes, but is not limited to, coming forward with evidence, both favorable and

unfavorable, for a person accused of such conduct; fully and truthfully make written

reports or verbally answer questions when required to do so by an investigator.

Employees are to refrain from making bad faith accusations of harassment.

Disciplinary action may be taken against an employee who fails to report instances

of harassment, or who fails or refuses to cooperate in the investigation of a

complaint of harassment, or who provides false testimony during the course of an

investigation. Employees are prohibited from interfering or attempting to interfere

with any departmental investigation. False allegations or statement made during the

course of any investigation will be dealt with on a case by case basis, and depending

on the outcome, may include disciplinary action.

Section 9.8, Workplace Violence:

The City of La Vergne is committed to preventing workplace violence and to

maintaining a safe work environment. Employees and customers are to be treated

with courtesy and respect at all times. Violence, threats, harassment, intimidation

and other disruptive behavior in the workplace will not be tolerated. All weapons,

and other dangerous or hazardous devices or substances are prohibited from City

of La Vergne property, unless in the control of law enforcement or emergency

personnel. City property includes but is not limited to, buildings, parking lots and

City owned vehicles. However, licensed firearms owners with carry permits may

store weapons secured and out of sight in their locked personal vehicles, in

accordance with requirements of State law.

All threats of violence or actual violence, whether direct or indirect, are to be

reported immediately to your immediate supervisor or any other member of

management and may include law enforcement. This includes threats by

employees, as well as threats by customers, vendors, solicitors, or other members

of the public. When reporting a threat of violence, the employee should be as

specific and detailed as possible. The City of La Vergne will promptly investigate

reports of workplace violence including suspicious individuals or activities.

Anyone determined to be responsible for threats of or actual violence or other

conduct that is in violation of this policy will be subject to prompt disciplinary

action up to and including termination.

Employees are encouraged to bring their disputes or differences with other

employees to the attention of their supervisors or the Human Resources Department

before the situation escalates into potential violence.

(Doc. No. 23-9 at 1–6). The allegations also implicated Rules 2, 10, 11 and 12 of General Order

300.01 of the LVPD, which provide:

Rule # 2. Obedience to Rules, Regulations, Laws. All personnel of the LaVergne

Police Department are required to obey and enforce all:

• Federal, state and local ordinances.

• Rules, regulation and procedures contained in this manual.

• General and Special Orders.

• City of LaVergne Personnel Manual Rules and Regulations.

• All lawful orders issued by a superior officer whether written or oral.

Failure to obey or enforce any of the above shall subject that person to disciplinary

action.

Rule #10. Neglect of Duty. Gross neglect of duty is any action or omission of

action which may be injurious to the member, fellow officers or the general public.

A member may be immediately relieved of police responsibility for gross neglect

of duty.

Rule #11. Conduct. The community expects that the integrity of its police be above

reproach. Therefore, Employees of the LaVergne Police Department shall conduct

themselves at all times, both on and off duty, in such a manner as to reflect most

favorably on the. Department. Conduct unbecoming an employee shall include any

conduct that brings the Department into disrepute, causes the public to lose

confidence in the Department, reflects discredit upon the employee as a member of

the Department, or impairs the operations, morale or efficiency of the Department

or officer to include but not limited to the following:

a. Association with known criminals;

b. By entering or remaining in establishments or residences where illegal

activities are suspected or are being committed except as necessary to

perform a police activity;

c. By any act of disorderly conduct including, but not limited to, fighting,

alcohol consumption resulting in arrest, disturbance of the peace or other

action that brings discredit to the member or the Department.

Rule #12. Truthfulness. Personnel of the LaVergne Police Department shall speak

the truth at all times and under all circumstances, whether under oath or not.

(Id. at 8–9).

To aid his investigation, Patton interviewed the sergeants and officers involved in Mayor

Cole’s allegations. (Doc. No. 23-5 at 2–10). For example, on December 13, 2022, Patton spoke

with Powell. (Id. at 3). During that interview, he described his knowledge of Hall’s relationships

with officers and sergeants at LVPD, including her relationship with McGowan. (Id.).

On December 14, 2022, Patton met with McGowan in his truck away from City Hall. (Doc.

No. 30 ¶ 10). Patton asked McGowan about his knowledge of Hall’s involvement with other

officers on second shift. (Id. ¶ 11). In response, McGowan discussed various relationships he

knew Hall was having with other officers. (See id. ¶¶ 14, 16, 18, 21). He also admitted that Hall

had come over to his house on December 4, 2022. (See id.). However, McGowan failed to disclose

to Patton all of the information he had about this issue. (See, e.g., id. ¶ 18).

McGowan also discussed with Patton his concerns about Chief Davis that McGowan

initially raised with Mayor Cole. (Id. ¶ 24; Doc. No. 33 ¶ 6). McGowan’s concerns centered

around what he believed to be Chief Davis’s unfair promotions and hiring practices. (Doc. No. 30

¶ 26). Specifically, McGowan believed it problematic that Chief Davis hired one of his fraternity

brothers, and that Chief Davis, in McGowan’s view, promoted only people that he wanted to

promote, such as Harry Hollins (“Hollins”). (Id. ¶¶ 27, 29). Further, McGowan told Patton that

he felt Chief Davis was “vindictive” and “hyperemotional.” (Id. ¶ 28).

Patton then met with Hall regarding the HR investigation on December 16, 2022. (Doc.

No. 23-5 at 8). She confirmed having sexual relationships with members of the LVPD, excluding

Powell and McGowan. (Id.). A few days later, Patton interviewed Hall for a second time (Doc.

No. 30 ¶ 38), when she admitted to having sex with McGowan on two occasions. (Id. ¶ 39). Hall

informed Patton that she asked McGowan whether he disclosed anything about their relationship

with HR, to which McGowan responded, “I don’t know what you’re talking about” and “[t]his

discussion didn’t happen.” (Id. ¶ 42).

The next day, Patton interviewed Powell for a second time. (Id. ¶ 45). During that

interview, Powell admitted to having a sexual relationship with Hall, and speaking with McGowan

about the HR investigation and their responses to it, despite Patton’s instructions to refrain from

such conversations.4 (Id. ¶ 46; Doc. No. 23-5 at 3–4). Powell also told Patton that he had seen

4 Whether Powell instructed officers not to discuss the investigation is disputed by the parties.

(See Doc. No. 30 ¶ 32; see also Doc. No. 25-2 at 66:4–11 (Patton testifying that he instructed

interviewees not to discuss the investigation during its course)).

Hall’s car parked at McGowan’s house, and suspected they had been seeing one another. (Doc.

No. 30 ¶ 47).

On the same day, Patton then interviewed McGowan for a second time. (Id. ¶ 48). During

that interview, McGowan disclosed that he was aware of a relationship between Powell and Hall,

because Powell had told him of as much. (Id. ¶ 49). In conflict with Hall’s interview, McGowan

denied discussing the HR investigation with Hall. (Id. ¶¶ 50–51). He also denied sending Hall an

explicit image of himself, which he later admitted being true. (Id. ¶¶ 50–52). Also during the

second interview, Patton asked McGowan about an incident that occurred between him and HR

employee Bethany Smith (“Smith”), when McGowan placed his hands on Smith from behind and

shook her. (Id. ¶¶ 53–54). McGowan admitted this interaction occurred, stating: “I did, I went in

here and we[] were playing around . . and I actually, I did that.” (Id. ¶ 55).

On December 28, 2022, Patton completed his HR investigation with a 20-page report

detailing his findings. (Id. ¶ 58; see Doc. No. 23-5). As relevant here, Patton concluded that he

gathered sufficient evidence to substantiate the alleged workplace violation and intimidation with

intent to interfere with the investigation allegations by McGowan. (Doc. No. 23-5 at 13). Patton

also partially substantiated allegations of unreported sexual relationships, sexual harassment, lying

during the investigation, intimidation, and conduct unbecoming of an officer against McGowan.

(Doc. No. 30 ¶ 60). Specifically, Patton’s report reads:

Patton substantiates the allegation of Sexual Harassment against Hall, Schoeberl,

Lugo, Holladay, Shields, and McGowan. Hall admitted to sending nude images to

other co-workers. Patton viewed those images and sexual videos personally from

McGowan. Hall lied during the course of the investigation by denying sending

those images and videos to Sgt. McGowan. Pornography and offensive pictures in

the workplace are forms of sexual harassment. These items are offensive,

inappropriate, and can lead to a hostile work environment for other employees.

Patton substantiates the allegation of Workplace Violence against McGowan.

McGowan admitted to coming into the HR office and placing his hands on the neck

of Bethany Smith. McGowan claims it was playful however it was unwanted and

an aggressive form of physical contact that is not permitted at work. Patton

partially substantiates the allegations of Sexual Relationships - Unreported,

Sexual Harassment, lying during the course of the investigation, intimidation, and

conduct unbecoming of an officer against McGowan. While McGowan denied

those allegations, behavior was reported and confirmed by Powell and Hall. In

addition, Mayor Cole provided information to directly conflict with answers by

McGowan during the investigation.

Patton substantiates the allegation of Intimidation with intent to interfere with

Investigation against McGowan, Powell, and Hall. Confirmation from Powell and

Hall showed intention to lying to HR about involvement including sexual activity.

McGowan denied this allegation, however the facts show it is more likely than not

that it did happen as told.

(Doc. No. 23-5 at 12–13).

As a result, Patton recommended discipline for eight officers and sergeants. (Doc. No. 30

¶ 62). Specifically, Patton recommended that five of the eight officers and sergeants, including

McGowan, Hall, and Powell, be terminated (id. ¶ 63), based on their violations of Sections 3.4,

9.2, 9.3, 9.7, and/or 9.8 of the LVPD Employee Handbook, and Rules 2, 10 and/or 12 of General

Order 300.01. (Doc. No. 23-5 at 14–20). All of those officers and sergeants were found to have,

among other things: (1) lied during the investigation and (2) had sex on duty. (Id.). Specific as to

McGowan, Patton recommended the following:

Patton recommends Termination of Employment for McGowan based on the

violation of sections 3.4, 9.2, 9.3, 9.7, and 9.8 of the Employee Handbook regarding

workplace violence, sexual harassment, conduct unbecoming of an officer, and

lying during the course of the investigation. McGowan admitted to the workplace

violence, while denying all other accusations. The investigation showed more likely

than not that McGowan tried to intimidate Hall in denying any allegations against

him in this case. McGowan also did meet with Powell, and was not fully truthful

with HR about those conversations. McGowan, more likely than not, also had

sexual relations with Hall. McGowan also lied during the investigation about

sending nude images to Hall, and then, after asking HR to leave the room, confessed

to sending the images. Patton found McGowan to be not credible during the course

of the investigation. McGowan has previous confirmed allegations of sex with an

employee from 2007 in the employment file.

(Id. at 15). Patton also recommended suspensions for the remaining three officers, Magliocco,

Holladay, and Schoberl, none of whom Patton found violated Rules 10 and/or 12 of General Order

300.01 given they were not found to have lied during the investigation, or to have had sex on duty.

(See id.; see also Doc. No. 32-1 at 69:20–70:24 (Patton testifying that suspended officers were

disciplined for not reporting sexual relationships, sexual harassment, or conduct unbecoming an

officer)).

Consistent with Patton’s recommendations, on January 4, 2023, the City terminated

McGowan’s employment. (Doc. No. 30 ¶ 67). The City specified the reasons for McGowan’s

termination, stating: “Employee terminated from employment for policy violations of Employee

Handbook 3.4, 9.2, 9.3, 9.7, 9.8, along with General Order 300.01 Rule[s] 2, 11 & 12.” (Doc. No.

23-10 at 1). The City also terminated the other four officers that Patton found violated Rules 10

and/or 12 of General Order 300.01. (Doc. No. 30 ¶ 69; see Doc. No. 32-1 at 5–8 (Patton testifying

that “[t]he City attorney made the decision that anyone who lied during the course of the

investigation or had sex on duty was not going to stay employed.”)). Four of the terminated

officers are African American or Hispanic, and one is white. (Id. ¶ 70). The City also suspended

the three officers that Patton found did not violate Rules 10 and/or 12. (Id. ¶ 71). All three

employees who the City suspended are white. (Id. ¶ 72).

II. LEGAL STANDARD

Summary judgment is appropriate only 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). “A

genuine dispute of material fact exists ‘if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.’” Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir. 2018) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “The party bringing the summary

judgment motion has the initial burden of informing the Court of the basis for its motion and

identifying portions of the record that demonstrate the absence of a genuine dispute over material

facts.” Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003) (citation omitted). “The moving party

may satisfy this burden by presenting affirmative evidence that negates an element of the non-

moving party’s claim or by demonstrating an absence of evidence to support the non-moving

party’s case.” Id. (citation and quotations omitted). “In response, the nonmoving party must present

‘significant probative evidence’ that will reveal that there is more than ‘some metaphysical doubt

as to the material facts.’” Miller v. Maddox, 866 F.3d 386, 389 (6th Cir. 2017) (quoting Moore v.

Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993)).

In deciding a motion for summary judgment, the Court must review all the evidence, facts,

and inferences in the light most favorable to the party opposing the motion. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The Court does

not, however, weigh the evidence, judge the credibility of witnesses, or determine the truth of the

matter. See Anderson, 477 U.S. at 249. The mere existence of a scintilla of evidence in support

of the non-moving party’s position will be insufficient to survive summary judgment; rather, there

must be evidence on which a trier of fact could reasonably find for the non-moving party. See

Rodgers, 344 F.3d at 595.

III. ANALYSIS

The City argues it is entitled to summary judgment on the merits of McGowan’s Title VII

and THRA race discrimination and retaliation claims. The Court will address each.

A. Counts 1 and 2: Title VII and THRA Race Discrimination

McGowan’s race discrimination claims under Title VII and the THRA arise from the

termination of his employment after the HR investigation. (Doc. No. 23 at 11; see Doc. No. 1 ¶¶

27–32). Because the Tennessee “legislature intended the THRA to be coextensive with federal

law,” Phillips v. Interstate Hotels Corp., 974 S.W.2d 680, 683 (Tenn. 1998), such “claims are

analyzed in the same manner as claims brought under Title VII of the Civil Rights Act of

1964,” Marpaka v. Hefner, 289 S.W.3d 308, 313 (Tenn. Ct. App. 2008) (collecting cases). This

includes, where applicable, the McDonnell Douglas v. Green, 411 U.S. 792 (1973) burden-shifting

framework that the Tennessee legislature codified for all claims filed after June 10, 2010. Tenn.

Code Ann. § 4-21-311 (2011).

Title VII and its Tennessee counterpart prohibit an employer from discriminating against

an employee on the basis of race. McDonnell, 411 U.S. at 802–03. Where a plaintiff does not

claim to have direct evidence of the race discrimination, like McGowan’s case here, the claims are

analyzed under the McDonnell Douglas evidentiary framework, which requires that the plaintiff

first establish a prima facie case of discrimination. Id. If McGowan can establish a prima facie

case of race discrimination, the burden shifts to the City to show a legitimate, non-discriminatory

reason for McGowan’s termination, and then McGowan must establish pretext. See id.

The Court need only address McGowan’s prima facie case of race discrimination, which

is dispositive in resolving the City’s motion on Counts I and II. To establish a prima facie case of

race discrimination, McGowan must demonstrate four things: “(1) he [] was a member of a

protected class; (2) he [] suffered an adverse employment action; (3) he [] was qualified for the

position; and (4) he [] was replaced by someone outside of the protected class or was treated

differently than similarly-situated, non-protected employees.” Wright v. Murray Guard, Inc., 455

F.3d 702, 707 (6th Cir. 2006) (citation and quotations omitted). Because the parties dispute only

the fourth element of McGowan’s prima facie case, the Court focuses there.

The center of the parties’ dispute revolves around whether McGowan can identify to a

similarly-situated, non-protected employee that was treated differently or better.5 In evaluating

this issue, to be deemed “similarly-situated,” “the individuals with whom [McGowan] seeks to

compare his[] treatment must have [(1)] dealt with the same supervisor, [(2)] have been subject to

the same standards and [(3)] have engaged in the same conduct without such differentiating or

mitigating circumstances that would distinguish their conduct or the employer’s treatment of them

for it.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). While this standard “appears

to invite a comparison between the employment status of the plaintiff and other employees in every

single aspect of their employment, Mitchell has not been so narrowly construed.” Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). Instead, McGowan need only

establish that his former colleagues, outside of his protected class, were treated differently or better

shared nearly identical employment situations in all relevant aspects. Id. (citation and quotations

omitted). Because the Mitchell factors are all “relevant to the factual context” of this case—“an

allegedly discriminatory disciplinary action resulting in the termination of [McGowan’s]

employment”—the Court will rely on them here. Id.

The parties largely focus on Mitchell’s third factor that is relevant to establishing the fourth

element of McGowan’s prima facie case. “In evaluating this factor, [the Court] look[s] to whether

the comparators’ actions ‘were of comparable seriousness to the conduct for which [McGowan]

was discharged.’” Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 777 (6th Cir.

2016) (quoting Mitchell, 964 F.2d at 583). In making this showing, McGowan “is not required to

show that his proposed comparator’s actions were identical to his own.” Colvin v. Veterans

5 Because there is no argument from the parties, or information in the record, regarding whether

McGowan was “replaced by someone outside of the protected class,” the Court need not address

this method of establishing McGowan’s prima facie case. Wright, 455 F.3d at 707.

Admin. Med. Ctr., 390 F. App’x 454, 459 (6th Cir. 2010). Still, McGowan cannot create a

“reasonable inference of discriminatory motive based on [his] ‘employer’s more severe treatment

of more egregious circumstances.’” Jackson, 814 F.3d at 777 (quoting Clayton v. Meijer, Inc.,

281 F.3d 605, 612 (6th Cir. 2002)).

McGowan has not satisfied his burden of production on this issue. As an initial matter, it

is not evident from McGowan’s briefing who he asserts to be the similarly-situated comparators

outside his protected class that the City treated differently than him. (See Doc. No. 29 at 11 (not

specifying who his comparators are)). This failure to clearly identify evidence of the third Mitchell

factor regarding the fourth element of McGowan’s prima facie case is alone enough to grant the

City’s motion on McGowan’s race discrimination claims. McDonnell, 411 U.S. at 802–03; see

Parsons v. FedEx Corp., 360 F. App’x 652, 646 (6th Cir. 2010) (courts have no duty to “sift through

the record in search of evidence to support” a party’s position); accord U.S. Structures, Inc. v. J.P.

Structures, Inc., 130 F.3d 1185, 1191 (6th Cir. 1997) (“It is well settled that the non-moving party

must cite specific portions of the record in opposition to a motion for summary judgment, and that

the court is not required to search the record for some piece of evidence which might stave off

summary judgment.”).

To the extent McGowan relies on the three white officers that were suspended, rather than

terminated, following the HR investigation—Magliocco, Holladay, and Schoeberl—as his

similarly-situated comparators, that reliance is misguided.6 (See Doc. No. 33 ¶ 46 (McGowan’s

statement of facts referring to the different treatment between white police officers who were

6 The City also raises the possibility, based on McGowan’s deposition testimony, that Tom Broeker

and Curtis Brinkley are McGowan’s similarly-situated comparators. (See Doc. No. 23 at 13).

Because McGowan does not so much as mention either of these individuals in his briefing, and

fails to present any evidence on their employment statuses, the Court need not consider these

individuals and whether they are appropriate comparators here. (See Doc. Nos. 29–30, 33).

suspended and McGowan’s termination)). As the City correctly points out, none of those officers’

actions “were of ‘comparable seriousness’ to the conduct for which [McGowan] was discharged

to establish a prima facie case.” Jackson, 814 F.3d at 778 (quoting Mitchell, 964 F.2d at 583).

Magliocco, Holladay, and Schoeberl were each suspended for some combination of not reporting

sexual relationships, sexual harassment, and/or conduct unbecoming an officer. (Doc. No. 32-1 at

69:20–70:24 (Patton testifying that suspended officers were disciplined for not reporting sexual

relationships, sexual harassment, or conduct unbecoming an officer)). Not only were those officers

and sergeants who were terminated, including McGowan, found to have committed a combination

of those infractions, but Patton also determined they lied during the investigation and/or had sex

on duty. (Doc. No. 33 ¶ 46). In McGowan’s case, he did both. (Id.). Further differentiating

McGowan’s conduct from Magliocco’s, Holladay’s, and Schoeberl’s, the City comes forward with

evidence that, of all the officers and sergeants implicated in the HR investigation, McGowan is the

only one who: (1) had previously been disciplined for violating LVPD policies; and (2) was found

to have committed workplace violence (Doc. No. 23-5 at 15).

Notably, McGowan does not disagree that his misconduct is different from that of his

comparators. (Doc. No. 29 at 11). Instead, McGowan asserts that he and his white comparators

were all a part of the same investigation based on the same misconduct, and that alone controls the

comparator analysis. (See id.). Unfortunately for McGowan, that is not the case, given that the

Court must look to the “comparable seriousness” of the conduct for which each employee was

disciplined. Mitchell, 964 F.2d at 583. In doing so, and while viewing the facts in McGowan’s

favor, no reasonable juror could conclude that his conduct—lying during the investigation, having

sex on duty, committing workplace violence, and having done so after prior workplace

violations—was equal to, or less egregious, than the conduct of Magliocco, Holladay, and

Schoeberl, who were disciplined only for lesser offenses. See Jackson, 814 F.3d at 777; (see Doc.

No. 23-5 at 11–20 (Patton explaining that all of the officers and sergeants involved in the

investigation committed sexual harassment, failed to report sexual relationships, and/or

participated in conduct unbecoming an officer)). Further, while not controlling here, another

critical difference separates McGowan from the white officers he offers as comparators: McGowan

was the only one of them in a supervisory position at the time of their discipline. See Boughton

v. Garland, 2022 WL 912210, at *10 (S.D. Ohio Mar. 29, 2022) (relying on Mitchell, finding

plaintiff could not point to subordinates as comparators, given his “supervisory position is a

reasonable ground on which [the defendant] may have distinguished his response” to plaintiff’s

wrongdoing). Given the distinctions between McGowan and his comparators, he cannot create a

reasonable inference that the City’s decision to terminate him but only suspend lower-ranking

white officers who committed less egregious workplace violations, was rooted in discriminatory

intent. See id.; see also Berry v. City of Pontiac, 269 F. App'x 545, 549 (6th Cir. 2008) (affirming

grant of summary judgment in defendant’s favor where defendant gave plaintiff a more harsh

suspension for more egregious conduct than his colleagues engaged in).

Because McGowan has failed to establish the third Mitchell factor that informs the fourth

element of his prima facie case, the Court need not reach the remaining elements of the McDonnell

Douglas framework. Summary judgment will be granted in the City’s favor on Counts I and II.

B. Count 3: Title VII and THRA Retaliation

The City next moves for summary judgment on McGowan’s Title VII and THRA

retaliation claims, which allege that the City retaliated against McGowan by terminating him after

he made complaints regarding the promotion of another employee. (Doc. No. 1 ¶¶ 33–38). Both

McGowan’s federal and state “[c]laims asserting retaliation based on circumstantial evidence,” as

McGowan raises here, “are analyzed under the McDonnell Douglas burden-shifting framework.”

Briggs v. University of Cincinnati, 11 F.4th 498, 514 (6th Cir. 2021) (applying this framework to

Title VII and EPA retaliation claims); see Tenn. Code Ann. § 4-21-311 (2011).

Like McGowan’s race discrimination claims, analysis of the prima facie case of his

retaliation claims is controlling here. “To establish a prima facie case of retaliation under Title

VII [and the THRA], [McGowan] must demonstrate that: ‘(1) he engaged in activity protected by

Title VII; (2) his exercise of such protected activity was known by the defendant; (3) thereafter,

the defendant took an action that was ‘materially adverse’ to [McGowan]; and (4) a causal

connection existed between the protected activity and the materially adverse action.” Laster v.

City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quoting Jones v. Johanns, 264 F. App’x

463, 466 (6th Cir. 2007)). The City asserts it is entitled to summary judgment on McGowan’s

retaliation claims because he cannot establish the first or second elements of his prima facie case.

(Doc. No. 23 at 22–25). Because the parties’ dispute on the first element is conclusive, the Court

turns there.

For McGowan to establish the first element of his prima facie case, that he engaged in

protected activity, he must show that he opposed a practice that he “reasonably believe[d] to be a

violation of Title VII.” Johnson v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000);

see Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 646–47 (6th Cir. 2015) (an

employee does not need to be correct that an employment practice he opposes is actually unlawful,

but must only reasonably believe it to be so). The “opposing” conduct qualifying for protection

by Title VII includes “complaining to anyone (management, union, other employees, or

newspapers) about allegedly unlawful practices; refusing to obey an order because the worker

thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the

employer—e.g., former employers, union, and coworkers.” Johnson, 215 F.3d at 579 (citation

omitted); see 42 U.S.C. §2000e-3(a) (protected activity may be shown by either opposing an

unlawful practice under Title VII or participating in an investigation, proceeding, or hearing under

Title VII). In making such complaints, the opposition must be based on “a reasonable and good

faith belief that the opposed practices were unlawful.” Johnson, 215 F.3d at 579 (citation and

quotations omitted).

Here, McGowan alleges the protected activity supporting his retaliation claim is the

complaint he made to Mayor Cole, and then Patton, about Chief Davis’s promotion practices.

(Doc. No. 1 ¶ 34 (“Defendant heard allegations of a potential problematic promotion and

undertook an investigation into the sexual affairs of Meagan Hall and others.”); see Doc. No. 29

at 17 (“McGowan was engaging in a protected activity by making a complaint about the promotion

practices of the Chief.”)). The City asserts that the complaints McGowan raised about Chief

Davis’s promotion decisions were far too vague to constitute protected activity. Viewing the

evidence in the light most favorable to McGowan, the Court agrees with the City.

The evidence before the Court demonstrates that McGowan’s conversation with Mayor

Cole about Chief Davis’s hiring decisions was “very vague” and “didn’t provide anything specific”

about those practices. (Doc. No. 30 ¶ 6). Later, when speaking with Patton, McGowan expressed

concerns that Chief Davis was hiring one of his fraternity brothers; only promoted those he liked;

and was “vindictive” and “hyperemotional.” (Id. ¶ 28). McGowan’s Equal Employment

Opportunity Commission Charge provides little more on this, as it states only that he “was dealing

with an issue related to the proposed promotion of another officer” that he “did not believe was a

good idea[.]” (Doc. No. 23-12 at 2).

From these facts, and McGowan’s briefing that offers no further explanation (see Doc. No.

29 at 17), it is unclear to the Court what unlawful practice McGowan asserts he contends Chief

Davis had engaged in. While McGowan need not lodge a complaint with “absolute formality,

clarity, or precision,” he must make a precise allegation about unlawful discrimination rather than

merely expressing concern about “management practices.” Yazdian, 793 F.3d at 645; see Caldwell

v. Gasper, 2022 WL 16629161, at *7 (6th Cir. Nov. 1, 2022) (relying on Yazdian, stating the

same). But, even viewing the evidence in McGowan’s favor, that is exactly what he did here.

McGowan’s complaints about Chief Davis’s hiring and promotion practices “did not complain

about unlawful activity by [Chief Davis], but rather, about management practices” that McGowan

disagreed with. Id. Without McGowan complaining more specifically about what Chief Davis

was doing that McGowan reasonably believed to be a violation of federal and state law,

McGowan’s complaints to Mayor Cole and Patton are otherwise unprotected. See id. (finding the

same where sergeant complained about discipline imposed post-investigation).

Even if the Court assumes that McGowan intended to oppose discrimination or unequal

treatment of some sort—an assumption the Court must make with evidence in the record only to

the contrary—the result is the same. (See, e.g., Doc. No. 25-1 at 343:3–22 (McGowan admitting

that he has not described the events at issue as discriminatory)). Viewing McGowan’s complaints

through this lens, such a vague complaint of discrimination or unfair treatment asserted by

McGowan here is still “insufficient to constitute opposition to an unlawful employment practice”

because the record remains devoid of what McGowan believed constituted illegal discrimination

or illegal unfair treatment. Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313

(6th Cir. 1989); see Caldwell, 2022 WL 16629161, at *7 (same); see also Wiloughby v. Allstate

Ins. Co., 104 F. App’x 528, 530–31 (6th Cir. 2004) (affirming district court’s grant of summary

judgment for defendant because plaintiff’s letter including vague charge of unequal treatment was

not protected activity). Indeed, if McGowan’s admittedly vague statements to Mayor Cole and

Patton could constitute protected activity, “every adverse employment decision by an employer

would be subject to challenge under either state or federal civil rights legislation simply by an

employee inserting a charge of discrimination[,]” which “would constitute an intolerable intrusion

into the workplace.” Booker, 879 F.2d at 1313.

At bottom, McGowan has failed to demonstrate that he actually believed that the “conduct

complained of constituted a violation of relevant law,” or that “a reasonable person in the same

factual circumstances” would “believe that the conduct complained of was unlawful.” Yazdian,

793 F.3d at 646-47 (internal quotations and citation omitted). Because McGowan has not

presented any evidence from which a reasonable juror could conclude that he engaged in protected

activity, the Court will grant summary judgment in the City’s favor on Count III.’

IV. CONCLUSION

For the foregoing reasons, the City’s Motion for Summary Judgment (Doc. No. 22) will be

granted.

An appropriate order will enter. Wee 2 7

wats CRENSHAW, i

UNITED STATES DISTRICT JUDGE

7 Given this outcome, the Court need not address the City’s argument that McGowan’s THRA race

discrimination and retaliation claims are barred by the statute of limitations. (See Doc. No. 23 at

25). In any event, the Court notes that McGowan apparently finds this argument meritorious,

given his lack of response on the matter. (See generally Doc. No. 29); see also See Humphrey v.

United States Att’y Gen.’s Office, 279 F. App’x 328, 331 (6th Cir. 2008) (where plaintiff fails to

respond to an argument in its response, any opposition 1s waived).

22