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holding that an argument not addressed in a responding party's brief is deemed waived
Summary of this case from Cramer v. Oak Haven Resort, Inc.Opinion
No. 1:02-cv-145
March 2, 2004
MEMORANDUM AND ORDER
Plaintiff Ronald E. Guster ("Guster") brings this action against defendants Hamilton County Department of Education ("HCDE"), Dr. Jesse Register ("Register"), and Debra Matthews ("Matthews"). HCDE operates and manages the public school system in Hamilton County, Tennessee. Register is appointed and employed by HCDE as the Superintendent of Schools for Hamilton County. Matthews is an elected member of the Hamilton County Board of Education.
The Tennessee Education Improvement Act of 1992 abolished the elected office of county superintendent of public instruction and created the new position of director of schools. A director of schools is appointed and directly employed by the local board of education. TENN. CODE ANN. § 49-2-301; see Knox County Educ. v. Knox County Ed. of Educ., 60 S.W.Sd 65, 69-70 (Tenn.Ct.App. 2001). Hamilton County refers to Dr. Register as the Superintendent of Schools. This is permissible under TENN. CODE ANN. § 49-2-301(a) which provides that the director of schools may also be referred to as superintendent. The Tennessee education statutes use the terms "director of schools" and "superintendent" interchangeably. See Marion County Bd. of Educ. v. County Educ. Ass'n, 86 S.W.Sd 202, 206 n. 5 (Tenn.Ct.App. 2001).
Guster, an African-American, was employed by HCDE as the principal of a middle school. On May 11, 2001, Superintendent Register notified Guster that his contract as principal would not be renewed for the next school year. After his contract as principal expired, Guster was demoted by Register to assistant principal and transferred to a vocational high school beginning in the 2001-2002 school year.
Guster's complaint is vague concerning the specific nature and legal basis for some of his causes of action. In paragraph 11 of his complaint, Guster makes the conclusory assertion that the defendants' conduct violates his rights under the Constitution of the State of Tennessee. Guster does not specify any particular section of the Tennessee Constitution which forms the basis for his suit. Guster seeks to recover compensatory damages and attorney's fees.
As the Court understands the complaint and the record, Guster asserts the following causes of action:
(1) A claim under 42 U.S.C. § 1983 for the deprivation of his right to free speech on matters of public concern as guaranteed by the First Amendment to the United States Constitution;
(2) A claim under 42 U.S.C. § 1983 for deprivation of a liberty interest in his reputation as an educator and deprivation of a property interest in the job of principal without procedural due process of law in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution;
(3) Race discrimination in employment in violation of the Tennessee Human Rights Act ("THRA"), TENN. CODE ANN. §§ 4-21-301 0 et seq.;
(4) Violation of his right to tenure as a school principal under Tennessee law;
(5) Breach of contract under Tennessee law;
(6) Wrongful nonrenewal of his principal's contract pursuant to TENN. CODE ANN.
§ 49-2-303;
(7) Wrongful transfer under Tennessee law, i.e his transfer to the assistant principal's job was arbitrary, capricious, and politically motivated; and
(8) Violation of the Tennessee "whistleblower" statute, TENN. CODE ANN. § 50-1-304, along with a companion whistleblower or retaliatory discharge claim under Tennessee common law.
Presently before the Court are the defendants' motions for summary judgment pursuant to FED. R. Civ. P. 56. [Court File Nos. 12, 14]. After reviewing the record, the Court concludes that the motion by Register and Matthews for summary judgment to dismiss the complaint against them individually [Court File No. 12] is well taken and it is GRANTED. All claims asserted by Guster against Register and Matthews individually are DISMISSED WITH PREJUDICE pursuant to FED. R. CIV. P. 56. Register and Matthews are not being sued in their individual capacities under 42 U.S.C. § 1983. Register and Matthews are being sued solely in their official capacities, and there are no § 1983 claims against them individually.
The motion for summary judgment by HCDE [Court File No. 14] is GRANTED IN PART and DENIED IN PART as follows. The motion is GRANTED IN PART to the extent that all of Guster's claims against HCDE are DISMISSED WITH PREJUDICE except for the claim brought under 42 U.S.C. § 1983 alleging the deprivation of Guster's right as a public employee to free speech on matters of public concern as guaranteed by the First Amendment to the United States Constitution. To the extent that HCDE moves for summary judgment to dismiss Guster's First Amendment free speech retaliation claim, HCDE's motion is DENIED because there are genuine issues of material fact in dispute. Guster may proceed to trial on his First Amendment free speech retaliation claim against HCDE under § 1983.
I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The Court must view the facts contained in the record and all reasonable inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907(6th Cir. 2001).
The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the nonmoving party's claim or by demonstrating an absence of evidence to support the nonmoving party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). To refute such a showing, the nonmoving party must present some significant, probative evidence and specific facts indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322; Rodgers, 344 F.3d at 595. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000); Hartsell v. Keys, 87 F.3d 795, 799 (6th Cir. 1996); Mitchell v. Toledo Hosp., 964 F.2d 577, 581-82 (6th Cir. 1992). The Court's role is limited to determining whether the case contains sufficient evidence from which a rational jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; Rodgers, 344 F.3d at 595; National Satellite Sports, 253 F.3d at 907.
II. Background
The Court has reviewed the record in the light most favorable to Guster. After Guster graduated from college in 1973, he was employed as a teacher in the public school system of the City of Chattanooga, Tennessee ("City"). The City is located within Hamilton County. For a number of decades, the City operated a public school system pursuant to a private act of the Tennessee General Assembly. The City school system was separate from the Hamilton County public schools.
Beginning in August 1996, Guster was employed by the City school system as principal of the Alton Park Middle School for the 1996-1997 school year. The name of this school was later changed to the John Franklin Middle School ("FMS"). Guster served as principal of this middle school for one year (1996-1997 school year) under the City school system. FMS is located in the Alton Park area of the City and the overwhelming majority of FMS students are African American.
Effective July 1, 1997, the City public school system was consolidated with the Hamilton County public schools. The City school system ceased operations and went out of existence. HCDE took over the operation and management of the former City school system on July 1, 1997. The employees and personnel of the former City school system, including Guster, became employees of the Hamilton County public school system. Guster wanted to remain as principal of FMS. Superintendent Register decided to continue to employ Guster as principal of FMS. HCDE and Register "inherited" Guster as the principal of FMS, and Register allowed Guster to continue his employment as principal at FMS for four years (July 1, 1997 — June 30, 2001) after the City school system was consolidated with the Hamilton County public school system.
HCDE is a local education agency existing pursuant to the laws of the State of Tennessee for the purpose of operating a public school system in Hamilton County. TENN. CODE ANN.
§§ 49-1-102(c) and 49-1-103(2). The governing body of HCDE is the Hamilton County Board of Education, an elected governmental entity that oversees and manages the operations of HCDE. TENN. CODE ANN. §§ 49-1-102(c)(1) and 49-2-201 et seq.
Register is HCDE's Superintendent of Schools, and he serves as the chief executive officer for the Hamilton County Board of Education. Register has broad authority to direct, control, and manage the employment of all persons employed by HCDE. TENN. CODE ANN. §§ 49-2-301(b)(1)(EE) and 49-2-303(a)(1). To assist him in administration of the Hamilton County school system, Register appoints principals to each of the schools. Register employs each principal from year to year, reserving the right to transfer and discharge principals as necessary for the efficient operation of the school system as a whole.
The Tennessee Education Improvement Act of 1992 vests in the appointed director of schools (here Superintendent Register) broad powers that had previously been reserved for the local boards of education. Register has the exclusive power to select, contract with, and hold accountable all principals for schools under his jurisdiction in Hamilton County. TENN. CODE ANN. § 49-2-303(a)(1); Marion County Bd. of Educ. v. Marion County Education Association, 86 S.W.3d 202, 206-07 (Term. Ct. App. 2001); Knox County Educ. v. Knox County Bd. of Educ., 60 S.W.3d 65, 70 (Tenn.Ct.App. 2001).
TENN. CODE ANN. § 49-2-303(a)(1) provides that each director of schools shall employ principals for the public schools. "The employment contract with each principal shall be in writing, shall not exceed the contract term of the current director of schools, and may be renewed." Section 49-2-303(a)(1) further provides that the contract shall include performance standards and require periodic written evaluations by the director of schools to be conducted in the manner and with the frequency that the director determines is proper. "Reasons for the nonrenewal of a contract may include, but are not limited to, inadequate performance as determined by the evaluations. A principal who has tenure as a teacher shall retain all rights of such status, expressly including those specified in [TENN. CODE ANN.]
§ 49-5-110." In other words, a principal who has tenure as a teacher retains all rights to tenure as a teacher but not tenure as a principal. The reference in TENN. CODE ANN. § 49-2-303(a)(1) to teacher tenure rights reflects the well-settled rule under Tennessee law that a school principal has no tenure in the position of principal. McKenna v. Sumner County Bd. of Educ., 574 S.W.2d 527, 530 (Tenn. 1978); Marion County Bd. of Educ., 86 S.W.3d at 207.
On August 2, 2000, Register and Guster executed a Principal's Performance Contract for the 2000-2001 school year. The contract was for a term of one year and it expired on June 30, 2001. The contract complied with TENN. CODE ANN. § 49-2-303.
A copy of the contract is an exhibit to Register's affidavit. [Court File No. 16, Ex. A].
Guster's immediate supervisor was HCDE's Director of Middle Schools, Tom Travers ("Travers"). On April 18, 2001, Guster received a formal written evaluation of his performance as principal at FMS from Travers. Travers rated Guster's performance as satisfactory. Travers issued a second, more comprehensive evaluation to Guster on May 30, 2001, wherein Travers rated Guster's performance for the then current school year as commendable which is one level higher than satisfactory. [Court File No. 22, Ex. A].
In the meantime, Register notified Guster on May 11, 2001, that Register had decided not to renew Guster's contract as principal for the next school year after the contract expired. Register discussed his decision with Guster at a meeting held on May 11, 2001. The persons in attendance at the May 11 meeting were Register, Guster, and Rick Smith who is employed by HCDE as Assistant Superintendent for School Operations.
The contract contains a provision governing the non-renewal of the principal's performance contract. Section IV on page 2 of the contract provides that reasons for non-renewal "may include, but not be limited to, inadequate performance as determined by evaluations (§ TCA 49-2-303). The superintendent shall inform a principal of such non-renewal on or before May 15 of the year in which the contract expires." (Emphasis in original). Superintendent Register complied with this section of the contract by giving proper notice to Guster of non-renewal of the principal's contract on May 11, 2001.
Guster remained employed by HCDE as the principal of FMS through the end of the contract until it expired on June 30, 2001. Register subsequently employed Guster to be an assistant principal at the Sequoyah Vocational Technical Center ("SVTC") for the 2001-2002 school year. Guster has been continuously employed by HCDE as an assistant principal at SVTC since July 2001. Register employed Joshua Barber, an African-American male, to replace Guster as the principal at FMS.
There is a dispute concerning the reasons that motivated Register's decision in May 2001 not to renew Guster's contract as principal at FMS. Defendants contend that Register made his decision for three basic reasons: (1) the poor performance of FMS students on standardized tests; (2) abnormally high rate of teacher turnover at FMS, i.e., teachers leaving the school; and (3) various complaints from teachers, students, and parents at FMS about Guster having an abrasive, belligerent attitude. Defendants say that Register determined Guster was ineffective as principal, and Guster was incapable of making necessary improvements in the standardized test scores and retaining teachers at FMS.
The State of Tennessee Department of Education mandates standardized testing of students which is commonly referred to by the acronym TCAP. Defendants contend that the students at FMS consistently performed substantially below their appropriate grade level on the TCAP tests. FMS consistently ranked last in the TCAP scores compared to all other middle schools in Hamilton County. HCDE and Register contend that Guster had five years (July 1996-May 2001) to bring the TCAP test scores of FMS students up to proper grade level but Register determined that Guster was incapable of getting the job done. The principal's contract provides that the goals and objectives that Guster was required to pursue include gains in academic achievement and proficiency testing. [Contract, p. 5, Section VIII].
With regard to an abnormally high rate of teacher turnover at FMS while Guster was principal, defendants contend that FMS lost a total of 33 teachers during a three-year period which is the equivalent of an entire teaching faculty. Defendants compare this to what occurred during the same time period at the similarly situated Orchard Knob Middle School which is located in the City near FMS. The students at the Orchard Knob Middle School and their families come from the same socio-economic background as FMS students. Orchard Knob Middle School has virtually identical demographics to FMS. While FMS lost a total of 33 teachers, Orchard Knob Middle School by contrast only lost 17 teachers. Orchard Knob Middle School was twice as successful as Guster at FMS in retaining teachers. Defendants assert that since the only real difference between FMS and Orchard Knob Middle School was leadership, Register naturally determined that Guster's inadequate leadership as principal at FMS was the primary reason for the high rate of a teacher turnover at FMS.
In response, Guster contends that these proffered reasons for Register's decision not to renew his principal's contract are a mere pretext for race discrimination and retaliation against Guster for exercising his First Amendment right of free speech. Guster says that when he met with Register on May 11, 2001, Register made two significant statements. Register mentioned or reminded Guster of certain oral statements that Guster had made during a Hamilton County Commission meeting that questioned and criticized HCDE's policy allowing teachers to freely transfer from FMS to newly created magnet schools. Guster further alleges that during the May 11, 2001 meeting, Register also mentioned Guster's "political" problems with Matthews as a reason why Register decided not to renew Ouster's contract as principal.
To understand Guster's complaint, it is necessary to explain the significance of Register's alleged statements and place them into proper context. We begin with the First Amendment free speech retaliation claim. Sometime in 1999, the Hamilton County Commission held a meeting known as the Parade of Principals. The purpose of the meeting was to give all the principals of the Hamilton County public schools an opportunity to appear before the Hamilton County Commission to answer questions and to discuss any problems or concerns the principals may have about the operation and management of their schools. Guster was required by HCDE and Register to attend the meeting. During the Parade of Principals meeting, a member of the Hamilton County Commission asked Guster to explain the status of FMS. Guster responded by stating that he was concerned about the impact of the new teacher transfer policy that HCDE had negotiated with the teachers' labor union. HCDE had implemented and was promoting a new program establishing magnet schools. To help get the magnet school program started, HCDE adopted a policy which allowed nontenured teachers to transfer to the magnet schools. Guster told the Hamilton County Commission that the new teacher transfer policy had caused a serious problem at FMS because it allowed teachers to transfer out of FMS and go to magnet schools. As a result, FMS lost valuable teachers who chose to transfer.
Guster contends the Parade of Principals occurred in 1999 while the defendants assert the meeting took place in 1997 or 1998. Viewing the record in the light most favorable to Guster in the summary judgment context, the Court accepts Guster's affidavit that the Parade of Principals occurred in 1999. At trial HCDE may seek to prove that the meeting occurred prior to 1999.
The gist of Guster's First Amendment free speech retaliation claim is that Register decided to retaliate against Guster for speaking out at the 1999 Parade of Principals meeting. Guster says the alleged retaliation took the form of Register deciding on May 11, 2001, not to renew Guster's contract as principal for the next school year at FMS, demoting Guster to assistant principal (with reduced salary and benefits, lesser responsibility), and transferring Guster to SVTC.
With regard to Guster's free speech at the Parade of Principals meeting, the defendants contend that Register did not object or seek to retaliate against Guster for the substance of what Guster said to the Hamilton County Commission. Rather, defendants argue that Register only objected to Guster's inability to adequately perform as principal at FMS, and then Guster blaming HCDE and the magnet school program for Guster's own shortcomings.
Guster further contends that Register's decision to demote him to assistant principal and transfer Guster to the SVTC was arbitrary, capricious, and politically motivated. Matthews is an elected member of the Hamilton County School Board, and FMS is located within the school district that Matthews represents. Matthews is African-American. Guster had a less than harmonious relationship with Matthews. Mathews received various complaints about Guster from some of her constituents. On a few occasions, Matthews went in person to Franklin Middle School where she had discussions and confrontations with Guster, primarily over matters involving student discipline and Guster's alleged rude, belligerent behavior towards students and their parents. Matthews occasionally made oral complaints, and passed along complaints by others concerning Guster's conduct, by telephone to Register's office and to Rick Smith.
Guster portrays the situation as one where he refused to allow Matthews to usurp and interfere with Guster's authority as principal to make academic, personnel, and student discipline decisions at FMS. Guster alleges that Matthews threatened to have him removed or transferred from FMS. Guster contends that when Register mentioned Guster's "political problems" with Matthews during their meeting on May 11, 2001, where Register explained his reasons for not renewing Guster's contract as principal, this is proof that Register's decision to demote and transfer Guster out of FMS was politically motivated to appease Matthews.
In response, the defendants deny that Register's decision on May 11, 2001, not to renew Guster's contract as principal at FMS was politically motivated or the result of any political pressure brought to bear by Matthews. Defendants contend that Matthews' conflicts and disagreements with Guster had nothing to do with Register's decision to demote and transfer Guster to SVTC.
III. Analysis A. 42 U.S.C. § 1983 1. Register and Matthews Are Not Sued In Their Individual Capacities
Register and Matthews contend they do not have personal liability to Guster on his 42 U.S.C. § 1983 claims because Guster has not sued them in their individual capacities. Register and Matthews argue they are being sued solely in their official capacities.
In his response [Court File Nos. 21, 26], Ouster does not bother to discuss and address the issue whether he has sued Register and Matthews in their individual capacities under § 1983. In the absence of any argument to the contrary from Guster, the Court concludes that Guster concedes he is not suing Register and Matthews individually. The Court deems Guster to have waived opposition to the summary judgment motion to the extent that Register and Matthews argue they are being sued solely in their official capacities. E.D.TN. LR 7.2.
A suit may be maintained against a defendant under 42 U.S.C. § 1983 in both the defendant's official capacity and personal or individual capacity. Personal-capacity suits seek to impose personal liability upon a government official or agent for actions taken under color of state law. Official-capacity suits are merely another way of pleading an action against the governmental entity of which the defendant is an officer, employee, or agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985); Hardin v. Straub, 954 F.2d 1193, 1198 (6th Cir. 1992); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir. 1989).
In his complaint, Guster does not explicitly plead that he is suing Register and Matthews in their individual capacities. To properly plead a § 1983 claim against Register and Matthews personally, Guster is required to clearly notify the defendants of the potential that they might be individually liable for the payment of damages. Rodgers v. Banks, 344 F.3d 587, 594 (6th Cir. 2003); Shepherd v. Wellman, 313 F.3d 963, 967-69 (6th Cir. 2002); Lovelace v. O'Hara, 985 F.2d 847, 850 (6th Cir. 1993); Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991); Wells v. Brown, 891 F.2d 591 (6th Cir. 1989). The Court finds the complaint does not give fair notice to Register and Matthews that Guster seeks to hold them personally liable in damages on the § 1983 claims. Based on the language in the complaint, Register and Matthews have no reason to believe that they could be held personally liable. The complaint identifies Register as the Superintendent of Schools and Matthews as a member of the Hamilton County Board of Education.
Plaintiff Guster's failure to explicitly state "individual capacity" in the complaint is not the end of the inquiry. Because no explicit pleading about the defendants' individual capacity appears in the complaint, the Court applies the "course of the proceedings" test to determine whether Register and Matthews have received fair notice that Guster seeks to hold them personally liable. The Court considers the nature of Guster's claims, demands for legal or equitable relief, and the nature of any defenses raised in response to the complaint, particularly the affirmative defense of qualified immunity, to determine whether defendants Register and Matthews have actual knowledge of the potential for individual liability.
The Court finds that the course of the proceedings have not that placed Register and Matthews on fair notice that Guster seeks to impose personal liability upon them. Guster's demand for monetary damages is an indication that he might be suing Register and Matthews in their individual capacities. Rodgers, 344 F.3d at 594; Shepherd, 313 F.3d at 967-69; Moore v. City of Harriman, 272 F.3d 769, 772-74 (6th Cir. 2001). Guster's demand for money damages in the complaint, standing alone, is insufficient to put Register and Matthews on fair notice that they are being sued personally because the remainder of the complaint strongly suggests only an official-capacity suit. Rodgers, 344 F.3d at 594; Shepherd, 313 F.3d at 969. At best, Guster's complaint is exceedingly ambiguous on this point. Based on the form and language on the face of the complaint, the Court finds that Register and Matthews are being sued under 42 U.S.C. § 1983 solely in their official capacities. Shepherd, 313 F.3d at 967-69; Moore, 272 F.3d at 772; Lovelace, 985 F.2d at 850; Whittington, 928 F.2d at 193; Wells, 891 F.2d 591. Guster has done nothing to persuade the Court otherwise.
Guster has not amended his complaint despite having ample opportunity to do so. Register and Mattthews have not raised the affirmative defense of qualified immunity. See Rodgers, 344 F.3d at 594-95; Moore, 272 F.3d at 772 n. 1. Consequently, the Court agrees with Register and Matthews that they are not being sued personally in their individual capacities. By suing Register solely in his official capacity as Superintendent of the Hamilton County Schools, Guster is in effect bringing his § 1983 claims against HCDE. Hafer v. Melo, 502 U.S. 21, 23-25 (1991); Will v. Michigan Dep't of State Police, 491 U.S. 58, 68 (1989); Graham, 473 U.S. at 165; Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993); Leach, 891 F.2d at 1245-46.
2. First Amendment Retaliation Claim Against HCDE
To prevail on a claim under 42 U.S.C. § 1983, Guster is required to prove two essential elements: (1) the defendant deprived Guster of a right, privilege, or immunity secure to him by the United States Constitution, federal statute, or other federal law; and (2) the defendant caused the deprivation while acting under color of state law. Rodgers, 344 F.3d at 595; Gregory v. Shelby County, Tenn., 220 F.3d 433, 441 (6th Cir. 2000). It is undisputed that HCDE acted under color of the laws of the State of Tennessee. The Court concentrates its attention on the question whether Guster can prove that HCDE deprived him of a right guaranteed to Guster by the United States Constitution.
Guster, as a government employee, retains his right under the First Amendment to the United States Constitution to freely comment on matters of public concern without fear of reprisal or retaliation by his employer, HCDE. Connick v. Meyers, 461 U.S. 138, 140 (1983); Hardy v. Jefferson Community College, 260 F.3d 671, 678 (6th Cir. 2001); Dambrot v. Central Michigan University, 55 F.3d 1177, 1185 (6th Cir. 1995). Guster contends that Register's decision not to renew the principal's contract, to demote Guster to assistant principal, and to transfer Guster to SVTC was done in retaliation for Guster engaging in free speech protected by the First Amendment. Guster alleges that Register's decision was motivated by an intent to retaliate against Guster for speaking out at the Parade of Principals meeting held before the Hamilton County Commission in 1999 when Guster criticized the HCDE policy of allowing non-tenured teachers to transfer out of regular schools such as FMS to teach at the newly created magnet schools.
HCDE moves for summary judgment to dismiss the First Amendment retaliation claim brought under 42 U.S.C. § 1983. Viewing the record in the light most favorable to Guster, the Court concludes there are genuine issues of material fact in dispute which preclude summary judgment. To the extent HCDE moves for summary judgment to dismiss the First Amendment retaliation claim, HCDE's motion is DENIED.
To make out a prima facie claim, Guster must show that: (1) he engaged in speech protected by the First Amendment; (2) Guster was subjected to an adverse employment action that would likely chill a person of ordinary firmness from continuing to engage in that protected free speech; and (3) causation, i.e., Guster's protected speech was a substantial or motivating factor in the decision by HCDE (Register) to take adverse employment action against Guster. Mt. Healthy City School Dist. Ed. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Rodgers, 344 F.3d at 596; Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 892-93 (6th Cir. 2003); Gragg v. Kentucky Cabinet For Workforce Dev., 289 F.3d 958, 965 (6th Cir. 2002); Sharp v. Lindsey, 285 F.3d 479, 484 (6th Cir. 2002); Cockrel v. Shelby County School Dist., 270 F.3d 1036, 1048 (6th Cir. 2001); Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 715 (6th Cir. 2001); Brandenburg v. Housing Authority of Irvine, 253 F.3d 891, 897 (6th Cir. 2001); Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000).
Guster has made out a prima facie claim of First Amendment retaliation. The first element of the prima facie case involves a two-step inquiry. The Court must initially determine whether Guster's speech addressed a matter of public concern protected by the First Amendment. If it did, then the Court must balance Guster's interest as a citizen in commenting upon a matter of public concern and the interest of his government employer, HCDE, in promoting the efficiency of the public services it performs. Gragg, 289 F.3d at 965; Hardy, 260 F.3d at 678-82; Brandenburg, 253 F.3d at 897-88; Leary, 228 F.3d at 737; Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 144 (6th Cir. 1997).
The threshold inquiry is whether Ouster's speech at the Parade of Principals meeting may be fairly characterized as constituting speech on a matter of public concern that is protected by the First Amendment. This is a question of law for the Court to decide. Guster bears the burden of establishing, as a matter of law, that his speech is constitutionally protected. Rankin v. McPherson, 483 U.S. 378, 384, 386 n. 9 (1987); Connick, 461 U.S. at 146, 148 n. 7; Rodgers, 344 F.3d at 596; Banks, 330 F.3d at 892; Farmer v. Cleveland Public Public Power, 295 F.3d 593, 599-600 (6th Cir. 2002); Leary, 228 F.3d at 737; Dambrot, 55 F.3d at 1186; Rahn v. Drake Center, Inc., 31 F.3d 407, 411 (6th Cir. 1994); Williams v. Com. of Ky., 24 F.3d 1526, 1534 (6th Cir. 1994); Meyers v. City of Cincinnati, 934 F.2d 726, 729 (6th Cir. 1991); Longford v. Lane, 921 F.2d 677, 680 (6th Cir. 1991); Barnes v. McDowell, 848 F.2d 725, 733 (6th Cir. 1988).
Not all speech by a public employee is protected under the First Amendment. See Connick, 461 U.S. at 149; Banks, 330 F.3d at 892-93; Gragg, 289 F.3d at 965-67; Bonnell v. Lorenzo, 241 F.3d 800, 812 (6th Cir. 2001). Nearly everything that an employee says about his government employer might at first blush appear to be a matter of public concern. However, the category of speech protected by the First Amendment is not this broad. In Connick, 461 U.S. at 147, the Supreme Court explains that when a public employee "speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest," then "absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency in reaction to the employee's behavior." See Banks, 330 F.3d at 893; Gragg, 289 F.3d at 965; Cockrel, 270 F.3d at 1051.
Speech addressing a matter of public concern includes speech that relates to "any matter of political, social, or other concern to the community." Connick, 461 U.S. at 146; Rodgers, 344 F.3d at 596; Banks, 330 F.3d at 893; Farmer, 295 F.3d at 600; Gragg, 289 F.3d at 965; Leary, 228 F.3d at 737; Dambrot, 55 F.3d at 1186. Generally, speech involves a matter of public concern when it concerns an issue about which information is needed or appropriate to enable members of society to make informed decisions about the operation of their government. Rodgers, 344 F.3d at 596; Banks, 330 F.3d at 893; Brandenburg, 253 F.3d at 898. Whether Guster's speech addressed a matter of public concern is determined by examining the content, form, and context of his statements, as revealed by the record as a whole. Rankin, 483 U.S. at 385; Connick, 461 U.S. at 147-48; Rodgers, 344 F.3d at 596; Banks, 330 F.3d at 893; Farmer, 295 F.3d at 600.
For the purpose of ruling on HCDE's summary judgment motion, the Court makes a preliminary finding that the speech in question — Guster's comments and statements to the Hamilton County Commission at the Parade of Principals meeting — addressed a matter of public concern. Statements criticizing public policy and the implementation of it are protected by the First Amendment. See Rankin, 483 U.S. at 387 (citing Bond v. Floyd, 385 U.S. 116, 136 (1966)); Pickering v. Board of Educ. of Township High School, Dist. 205, 391 U.S. 563, 574 (1968) (teacher's comments regarding whether school system required additional funds touched upon matter of public concern and could not provide basis for teacher's discharge). Guster has come forward with sufficient proof in his affidavits [Court File Nos. 22, 27] to show that his speech addressed a matter of public concern. Once the Court has had the opportunity to hear the evidence at trial, the Court can make a final decision on the question of law whether Guster's speech addressed a matter of public concern. The Court reserves making a final ruling on this question of law until trial.
We proceed to the next inquiry under the first prima facie element. The Court must balance Guster's interest as a citizen in commenting upon matters of public concern and determine whether it is outweighed by HCDE's interest in promoting the efficiency of the public services (operating the Hamilton County public school system) that HCDE performs through its employees. Rankin, 483 U.S. at 384, 388; Mt. Healthy, 429 U.S. at 284; Pickering, 391 U.S. at 568; Rodgers, 344 F.3d at 596; Banks, 330 F.3d at 892-93; Sharp, 285 F.3d at 484-87; Cockrel, 270 F.3d at 1053; Brandenburg, 253 F.3d at 897-98; Leary, 228 F.3d at 737-38; Perry v. McGinnis, 209 F.3d 597, 604-08 (6th Cir. 2000); Bailey, 106 F.3d at 144; Dambrot, 55 F.3d at 1185; Longford, 921 F.2d at 680-81. This is commonly known as the Pickering balancing test, and it is a question of law for the Court to decide. Meyers, 934 F.2d at 729. While Guster as a public employee may not be required to sacrifice or refrain from exercising his First Amendment free speech rights in order to obtain or continue his position of government employment, Rankin, 483 U.S. at 383, and Perry v. Sinderman, 408 U.S. 593, 597 (1972), HCDE is afforded greater leeway to control speech that threatens to undermine its ability to perform its legitimate governmental functions. Rodgers, 344 F.3d at 596.
In striking the proper balance under the Pickering test, the Court considers the time, manner, and place of Guster's speech in the context in which the dispute arose. Other relevant factors include whether Guster's speech: (1) meaningfully interfered with or impeded the performance of his duties as a school principal; (2) undermined a legitimate goal or mission of HCDE; (3) interfered with the regular operation of HCDE; (4) created disharmony among his co-workers; (5) impaired discipline by his superiors within HCDE; or (6) had a detrimental impact on close working relationships for which personal loyalty, trust and confidence are necessary, e.g., the working relationship between Guster as a school principal and Superintendent Register. Rankin, 483 U.S. at 388; Connick, 461 U.S. at 152-53; Pickering, 391 U.S. at 570-73; Sharp, 285 F.3d at 486; Cockrel, 270 F.3d at 1053; Brandenburg, 253 F.3d at 899; Perry, 209 F.3d at 607; Williams, 24 F.3d at 1536; Meyers, 934 F.2d at 730; Matulin v. Village of Lodi, 862 F.2d 609, 614 (6th Cir. 1988). Since Guster's speech substantially involved a matter of public concern, HCDE is required to make a stronger showing that its interest in regulating the speech outweighed Guster's interest in exercising his First Amendment right of free speech. Cockrel, 270 F.3d at 1053; Leary, 228 F.3d at 737-38.
The Court RESERVES making a final decision on the Pickering balancing test until it hears the evidence at trial. For the purpose of ruling on HCDE's summary judgment motion, it is enough for the Court to make the preliminary finding that Guster can arguably show that the Pickering balancing test weighs in his favor. In sum, Guster has established the first element of his prima facie claim.
With regard to the second element of the prima facie claim, Guster can arguably show that HCDE, acting through Superintendent Register, took adverse employment action against Guster that would likely chill a person of ordinary firmness from continuing to engage in his constitutional right of free speech protected by the First Amendment.
With regard to the third element of the prima facie claim, causation, HCDE argues it is entitled to summary judgment because Guster cannot meet his burden of proving that his speech at the Parade of Principals meeting was a substantial or motivating factor in Register's decision to demote and transfer Guster. The plaintiff bears the burden of proving this by a preponderance of the evidence. Mount Healthy, 429 U.S. at 287; Matulin, 862 F.2d at 613.
HCDE's argument fails. The motivation behind Register's decision is an issue of fact and causation is usually a factual issue to be decided by the jury at trial. Bailey, 106 F.3d at 145; Hartsel, 87 F.3d at 803; Meyers, 934 F.2d at 729; Langford, 921 F.2d at 683; Matulin, 862 F.2d at 613. The bare fact that an adverse employment action occurred after Guster's exercise of protected free speech, without more, is insufficient to prove causation. In opposing defendant HCDE's summary judgment motion, Guster cannot establish the third element of his prima facie claim by relying solely on the mere fact that an adverse employment action followed his free speech that HCDE or Register would have liked to prevent or halt. Rather, Guster must present some probative evidence linking his free speech at the Parade of Principals in 1999 to Register's decision in May 2001 to take adverse employment action against Guster. Farmer, 295 F.3d at 602; Cockrel, 270 F.3d at 1055; Bailey, 106 F.3 at 144-45.
The Court has reviewed Guster's deposition and his two affidavits. Guster states that during his meeting with Register on May 11, 2001, Register referred to and mentioned Guster's speech at the Parade of Principals meeting as a factor in Register's decision. Guster offers direct evidence of a causal link between his speech and Register's decision to take adverse employment action against Guster. In deciding the defendants' summary judgment motions, the Court cannot judge the credibility of Guster and Register. There is a genuine issue of material fact in dispute whether Guster's speech was a substantial or motivating factor in Register's decision to take adverse employment action against Guster. For purposes of summary judgment, Guster has come forward with sufficient direct proof to establish the third element of his prima facie claim, causation.
Accordingly, Guster may proceed to trial on his First Amendment free speech retaliation claim against HCDE under 42 U.S.C. § 1983. If Guster is able to prove at trial that his speech was a substantial or motivating factor in Register's decision, then HCDE may present evidence and seek to persuade the jury that Register would have taken the same action in the absence of Guster's protected free speech. Mount Healthy, 429 U.S. at 285, 287; Banks, 330 F.3d at 893; Cockrel, 270 F.3d at 1048, 1056; Leary, 228 F.3d at 737; Jackson, 168 F.3d at 909; Dambrot, 55 F.3d at 1186; Matulin, 862 F.2d at 613.
3. Procedural Due Process Claim Against HCDE
Guster asserts a claim under 42 U.S.C. § 1983 on the theory that HCDE and Register took adverse employment action against Guster without adequate notice and a hearing, thereby depriving Guster of procedural due process of law in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Due Process Clause of the Fourteenth Amendment provides that no State shall deprive any person of liberty or property without due process of law. To prevail on a procedural due process claim under § 1983, Guster must prove three essential elements: (1) Guster had a life, liberty, or property interest protected by the Due Process Clause of the Fourteenth Amendment; (2) HCDE deprived Guster of this protected interest; and (3) HCDE did not afford Guster adequate procedural due process prior to depriving him of the protected interest. Med. Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir. 2002); Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999).
Guster contends that Register's adverse employment decision severely impacted upon Guster's reputation as an educator. More specifically, Guster claims that HCDE deprived him of a protected liberty interest in his good reputation without due process of law. [Court File No. 21, p. 8]. Guster does not cite or discuss any relevant law to support this claim.
The Court concludes that HCDE is entitled to summary judgment on the procedural due process claim. Guster has not made out a prima facie claim for deprivation of a liberty interest in his reputation as an educator and school principal. An objective, rational jury could not find in favor of Guster on this claim.
The first hurdle Guster must clear in presenting a prima facie procedural due process claim is to demonstrate that he had a constitutionally protected liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 569-70 (1912);, Joelson v. United States, 86 F.3d 1413, 1420 (6th Cir. 1996); Mertik v. Blalock, 983 F.2d 1353, 1359 (6th Cir. 1993). Liberty interests derive both from the Due Process Clause itself and the laws of the States. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989); Pusey, 11 F.3d at 656. Property interests protected by the United States Constitution are created by and stem from an independent source, such as state law, and are not created by the Constitution itself. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 537 (1985); Roth, 408 U.S. at 577; Sharp, 285 F.3d at 487; Leary, 228 F.3d at 741; Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994); Mertik, 983 F.2d at 1359; Matulin, 862 F.2d at 615. Government employment amounts to a protected property interest when the employee has a legitimate expectation of continued employment. Curby v. Archon, 216 F.3d 549, 553 (6th Cir. 2000);, Johnston-Taylor v. Cannon, 907 F.2d 1577, 1581 (6th Cir. 1990). In the instant case, Guster did not have a legitimate expectation of continued employment as a school principal by HCDE under the applicable Tennessee statutes and his principal's contract which expired on June 30, 2001, which is explained infra.
A person's good reputation is among the liberty interests protected by the Due Process Clause of the Fourteenth Amendment. Guster has a protected liberty interest in his reputation, good name, honor, and integrity, as well as a liberty interest in being free to live and practice his chosen profession without the burden of an unjustified label of infamy. Roth, 408 U.S. at 572-74; Med. Corp., 296 F.3d at 413; Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir. 2002); Joelson, 86 F.3d at 1420; Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir. 1989). Due process concerns are implicated where a government employer voluntary and publicly disseminates false or defamatory information in the course of a decision to terminate a public employee, and the false or defamatory statements have a stigmatizing impact on the employee's reputation. Quinn, 293 F.3d at 319-20; Ludwig v. Bd. of Trustees of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997); Joelson, 86 F.3d at 1420-21; Gregory, 24 F.3d at 788; Christian v. Belcher, 888 F.2d 410, 417 (6th Cir. 1989); Chilingirian, 882 F.2d at 205; Hade v. City of Fremont, 246 F. Supp.2d 837, 841 (N.D. Ohio 2003). If this occurs, the government employer is required to afford the employee an opportunity to clear his name.
To establish the deprivation of a constitutionally protected liberty interest in the employment context, Guster must prove stigmatizing governmental action by HCDE and Register which so negatively affects or impacts Guster's reputation that it effectively forecloses the opportunity for Guster to practice his chosen profession as an educator, teacher, and school principal. A moral stigma such as immorality or dishonesty is required to show a deprivation of liberty. Roth, 408 U.S. at 573-74; Med. Corp., 296 F.3d at 414; Ludwig, 123 F.3d at 410; Joelson, 86 F.3d at 1420; Isaac v. Conrad, 39 F. Supp.2d 1025, 1030 (S.D. Ohio 1999).
Guster cannot make out a prima facie claim based on his employer stating that the reason for adverse employment action being taken against Guster was his inadequate performance, incompetence, neglect of duty, or malfeasance. Constitutionally protected liberty interests are not implicated by a defendant employer's allegations of improper or inadequate performance, or charges of incompetence, neglect of duty, or malfeasance. A charge by HCDE and Register that merely makes Guster less attractive to other prospective employers but leaves open a definite range of employment opportunity to Guster does not rise to the level necessary to constitute the deprivation of a liberty interest under the Due Process Clause of the Fourteenth Amendment. Med Corp., 296 F.3d at 414; Ludwig, 123 F.3d at 410; Joelson, 86 F.3d at 1420; Gregory, 24 F.3d at 788; Chilingirian, 882 F.2d at 205-06 n. 8; Isaac, 39 F. Supp.2d at 1028-29.
Mere defamation by an employer or injury to reputation alone is not enough to invoke constitutional due process concerns. For there to be a viable procedural due process claim, some alteration of a right or status previously recognized by state law must accompany the injury to the employee's reputation. Paul v. Davis, 424 U.S. 693, 711-12 (1976); Satkowiak v. Bay County Sheriff's Dept., 2002 WL 31155817, *2 (6th Cir. Sept. 26, 2002); Quinn, 293 F.3d at 319; Jackson v. Heh, 215 F.3d 1326 (Table, text in 2000 WL 761807, **3-4 (6th Cir. June 2, 2000)); Ferencz v. Hairston, 119 F.3d 1244, 1249 (6th Cir. 1997) (holding that because publication of defamatory comments was not accompanied by the deprivation of any tangible interest such as continued employment, the defamatory publication did not deprive plaintiffs of a liberty interest); Kendall v. Clarksville-Montgomery County School System, 91 F.3d 143 (Table, text in 1996 WL 413560 (6th Cir. July 23, 1996)); Courtney v. Bee, 62 F.3d 1417 (Table, text in 1995 WL 469426, *7 (6th Cir. Aug. 7, 1995)); see also Siegert v. Gilley, 500 U.S. 226, 233 (1991). The alleged stigmatizing statements must be made in connection with the loss of a governmental right, benefit, or entitlement. Med. Corp., 296 F.3d at 414; Mertik, 983 F.2d at 1363.
The Sixth Circuit has identified five factors that must be satisfied to establish that a government employee has been deprived of a liberty interest by his employer and he was entitled to a name-clearing hearing: (1) the stigmatizing statements were made in conjunction with the plaintiffs termination from employment; (2) the plaintiff is not deprived of his liberty interest in his reputation when the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty, or malfeasance; (3) the employer's stigmatizing statements or charges must be made public by the employer; (4) the plaintiff must show that the charges made against him by his employer were false; and (5) the public dissemination of the false information by the employer must have been voluntary. Quinn, 293 F.3d at 320; Brown v. City of Niota, 214 F.3d 718, 722-23 (6th Cir. 2000); Ludwig, 123 F.3d at 410; see also Hade, 246 F. Supp.2d at 841; Issac, 39 F. Supp.2d at 1028.
Once a plaintiff establishes all five of these elements, then he is entitled to a name-clearing due process hearing but only if he requests one. Quinn, 293 F.3d at 320; Brown, 214 F.3d at 723; Ludwig, 123 F.3d at 410; Hade, 246 F. Supp.2d at 842. It is the employer's denial of the employee's request for a name-clearing hearing that causes the deprivation of the liberty interest without due process. Quinn, 293 F.3d at 320-24; Brown, 214 F.3d at 723; Hade, 246 F. Supp.2d at 842. The purpose of the name-clearing hearing is to afford the aggrieved employee an opportunity to be heard to refute the charges publicly disseminated against him. The name-clearing hearing need not comply with formal procedures to be valid. Quinn, 293 F.3d at 320; Ludwig, 123 F.3d at 410; Gregory, 24 F.3d at 789.
The Court finds that Guster has failed to make out a prima facie procedural due process claim against HCDE showing that he has been deprived of a liberty interest in his reputation. Guster's claim fails for several reasons. First, Guster has no proof that Register and HCDE voluntarily made or disseminated any stigmatizing statements or charges to the public impugning Guster's reputation. Register quietly handled the demotion and reassignment of Guster within Register's office. Register and HCDE did not make, disseminate, publish, or release any public statements attacking Guster's reputation. It is Guster himself who initially brought this matter into a public forum by filing the instant lawsuit.
Second, HCDE and Register did not make any stigmatizing statements against Guster. HCDE and Register did not make any statements or charges that might seriously damage Guster's standing and association in the community, or that might impose on Guster a stigma that would foreclose his freedom to take advantage of other employment opportunities. See Ludwig, 123 F.3d at 410; Hade, 246 F. Supp.2d at 844-45; Isaac, 39 F. Supp.2d at 1029-30. HCDE and Register did not publicly charge Guster with dishonesty, immorality, or criminal conduct. At most, Register merely "charged" that Guster was inadequate and incompetent in the performance of his duties as principal at FMS. This is clearly insufficient to demonstrate that Guster has been deprived of a liberty interest in his reputation. The reasons stated by Register for his decision to demote and transfer Guster (inadequate performance and incompetence) might make Guster less attractive to other prospective employers but it leaves open a definite range of employment opportunities for Guster. Gregory, 24 F.3d at 788-89; Ludwig, 123 F.3d at 410; Chilingirian, 882 F.2d at 205-06 n. 8. It is significant that HCDE has continuously employed Guster in the position of assistant principal at SVTC after his demotion and transfer. See Gregory, 24 F.3d at 789. Guster was not terminated as an employee by HCDE and Register.
Third, Guster offers no probative evidence showing that he has been stigmatized by Register's adverse employment decision. There is no proof that Register's decision has so negatively impacted Guster's reputation that it effectively forecloses the opportunity for Guster to practice his chosen profession as an educator, teacher, and school principal. Roth, 408 U.S. at 573-74; Joelson, 86 F.3d at 1420. Guster has made no effort to apply for jobs as a principal in other schools outside the Hamilton County public school system. There is no proof that Guster applied for a job as principal in another school district outside Hamilton County, Tennessee, and his application was denied or rejected because of Register's decision to demote Guster to assistant principal and transfer him to SVTC.
Fourth, although there is a liberty interest in the preservation of a public employee's good reputation, the damage upon the employee's reputation must correlate with either a termination of government employment, or with the loss of a legal right or status enjoyed by the plaintiff employee under state or federal law. Paul, 424 U.S. 693; Satkowiak, 2002 WL 31155817, at *2; Quinn, 293 F.3d at 319; Kendall, 1996 WL 413560; Mertik, 983 F.2d at 1362. Once Guster's contract of employment as school principal with HCDE expired on June 30, 2001, Guster did not have a protected property interest in his principal's post under either Tennessee statutes or the contract. Sharp, 285 F.3d at 487; Kendall, 1996 WL 413560.
In Sharp, 285 F.3d at 487, the Sixth Circuit explains that the Tennessee's Teacher Tenure Act includes school principals in the definition of "teacher." See TENN. CODE ANN. § 49-5-501(1). TENN. CODE ANN. § 49-5-501(11)(A) provides that administrative and supervisory personnel, such as principals, "shall have tenure as teachers and not necessarily tenure in the specific type of position in which they may be employed." When the Tennessee legislature enacted the Teacher Tenure Act, it did not intend that a school principal should have a statutory entitlement to his or her principal's post. Sharp, 285 F.3d at 487; Coe v. Bogart, 519 F.2d 10, 12 (6th Cir. 1975); State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635 (1956). For example, if the principal of a Tennessee public school is terminated from employment or demoted during the term of his principal's contract, he may have tenure rights to remain employed in the school district in the capacity of a tenured teacher but he has no statutory right to remain in the position of principal. Furthermore, Guster did not have a right under Tennessee statutes to prior notice and a hearing before he could be transferred and reassigned by Register, even though the transfer constituted a demotion in terms of less status and reduced compensation. McKenna v. Sumner County Bd. of Educ., 574 S.W.2d 527, 534 (Tenn. 1978).
In the absence of a property interest created by Tennessee statutes, we must determine whether Guster had a constitutionally protected property interest in his principal's post based on his contract of employment at the time he was demoted by Register. Sharp, 285 F.3d at 487-89. A non-tenured school employee's property interest in continued employment is created and defined by the employee's contract. The employee has a property interest in employment for the duration of the contract. Id. at 489; Ramsey v. Bd. of Educ., 844 F.2d 1268, 1274 (6th Cir. 1988).
This Court concludes that Guster was not deprived of a constitutionally protected property right under the contract. Guster did not have a contractual property interest in the principal's post after the contract expired. The contract of employment executed by Guster and Register on August 2, 2000, was for a finite term. The contract expired on June 30, 2001. Guster served continuously as principal of FMS for the entire term of the contract up through and including June 30, 2001. Register did not terminate or breach Guster's employment as principal during the term of the contract. Once the contract expired on June 30, 2001, Register exercised his right to employ, transfer, and reassign Guster as an assistant principal to SVTC for the 2001-2002 school year. Guster did not have a property right or reasonable expectation of continued employment in his job as school principal beyond the term of the contract. Consequently, Guster cannot prove that the alleged injury to his reputation correlates with either a termination of government employment, or with the loss of a legal right or status enjoyed by Guster under Tennessee law.
Fifth, Guster's procedural due process claim lacks merit because there is no proof that he ever requested a name-clearing hearing. In the absence of a request by Guster for a name-clearing hearing and the denial of such a request by Register and/or HCDE, there is no deprivation of Guster's liberty interest in his reputation. Quinn, 293 F.3d at 320-24.
Accordingly, Guster's procedural due process claim brought against HCDE under 42 U.S.C. § 1983 is DISMISSED WITH PREJUDICE.
B. Race Discrimination Claim Under THRA
Guster brings his race discrimination in employment claim solely under the THRA. The THRA is intended to further the policies of Title VII of the Federal Civil Rights Act of 1964, as amended. Mayberry v. Endocrinology-Diabetes Assocs., 926 F. Supp. 1315, 1326-27 (M.D. Tenn. 1996); Spann v. Abraham, 36 S.W.3d 452, 462-63 (Tenn.Ct.App. 1999); TENN. CODE ANN. § 4-21-101(a)(1). Although the wording of THRA differs slightly from the language of Title VII, the Tennessee General Assembly envisioned that TFIRA would be coextensive with Title VII and federal civil rights laws. Parker v. Warren County Util. Dist., 2 S.W.3d 170, 172 (Tenn. 1999); Carr v. United Parcel Serv., 955 S.W.2d 832, 834-35 (Tenn. 1997); Bennett v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121 (Tenn. 1992); Spann, 36 S.W.3d at 463; (Tenn.Ct.App. 1999). In deciding Guster's claim, the Court looks to and relies upon both Tennessee law and federal precedent interpreting and enforcing Title VII. Carr, 955 S.W.2d at 835.
Guster's claim under the THRA involves the same prima facie elements and burden-shifting standards applicable to claims under Title VII. A claim raised under THRA is analyzed using the same framework as Title VII cases. Parks v. City of Chattanooga, 2003 WL 21674749, at *5 n. 11 (6th Cir. July 16, 2003); Newman v. Federal Exp. Corp., 266 F.3d 401, 406 (6th Cir. 2001); Wade v. Knoxville Utilities Bd., 259 F.3d 452, 464 (6th Cir. 2001); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 n. 5 (6th Cir. 2000); Tetro v. Elliot Popham Pontiac, Oldsmobile, Buick, GMC Trucks, Inc., 173 F.3d 988, 993(6th Cir. 1999); Mitchell v. Toledo Hosp., 964 F.2d 577, 582(6th Cir. 1992); Martin v. Boeing-Oak Ridge Co., 244 F. Supp.2d 863, 866 n.l (E.D. Tenn. 2002); Carr, 955 S.W.2d 832; Campbell v. Florida Steel Corp., 919 S.W.2d 26, 31 (Tenn. 1996).
The Court bears in mind that the THRA and its counterpart in federal law, Title VII, are not designed or intended to intrude the courts directly into complex assessments of employment qualifications, staffing requirements, and employee productivity. The THRA does not require this Court to act as a "super personnel department" to re-examine an employer's judgment or its management prerogatives and business decisions. Spann, 36 S.W.3d at 467. The issue to be resolved in the instant case is not whether HCDE and Register made a correct or prudent business management decision not to renew Guster's contract as principal and to reassign Guster to SVCT as an assistant principal. Rather, the key issue is whether HCDE discriminated against Guster based on his race as an African American in violation of THRA. Id.
The Court considers two different theories of race discrimination: disparate treatment and disparate impact.
1. Disparate Treatment and Burden-Shifting Test
Guster contends he was subjected by his employer, HCDE, to disparate treatment. Disparate treatment occurs when an employer treats some employees less favorably than others because of race. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15 (1977); McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973); McConico v. Cincinnati Gas Electric Co., 114 F.3d 1188 (Table, text at 1997 WL 242091, *3 (6th Cir. May 8, 1997)); Huguley v. General Motors Corp., 52 F.3d 1364, 1370 (6th Cir. 1995); Mitchell, 964 F.2d at 582-83; Daniels v. Board of Educ. of Ravenna City School, 805 F.2d 203, 206 (6th Cir. 1986). Guster bears the initial burden of showing a prima facie case of disparate treatment by his employer. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802; Clayton v. Meijer, Inc., 281 F.3d 605, 611-12 (6th Cir. 2002); Kline v. Tennessee Valley Authority, 128 F.3d 337, 342 (6th Cir. (1997); Talley v. Bravo Pitino, Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995); Mitchell, 964 F.2d at 582.
To preclude summary judgment, Guster must present some probative evidence showing there is at least a genuine issue of material fact in dispute whether HCDE and Register acted with the intent or motive to discriminate against Guster on the basis of his race. Guster must show that his race actually played a role in Register' decisionmaking process and it had a determinative influence on Register's decision which amounts to disparate treatment. International Bhd. of Teamsters, 431 U.S. at 335-36; McConico, 1997 WL 242091, at *3; Huguley, 52 F.3d at 1370.
Guster may establish a prima facie case either by direct evidence of intentional race discrimination, or by circumstantial evidence that creates an inference of race discrimination. Seay v. Tennessee Valley Authority, 339 F.3d 454, 463 (6th Cir. 2003); Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000); Johnson v. University of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000); Jacklyn v. Schering-Plough Healthcare Products, 176 F.3d 921, 926 (6th Cir. 1999); Ensley-Gaines v. Runyon, 100 F.3d 1220, 1224 (6th Cir. 1996); Burns v. City of Columbus, Dep't of Public Safety, 91 F.3d 836, 842-43 (6th Cir. 1996); Talley, 61 F.3d at 1246, 1248-49; Huguley, 52 F.3d at 1370-71. The direct evidence and circumstantial evidence paths are mutually exclusive. Guster need only show one or the other, but not both. Johnson, 215 F.3d at 572; Kline, 128 F.3d at 348.
Direct evidence is that evidence, which if believed, requires the conclusion that race discrimination was at least a motivating factor in the employer's actions. Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003); Hopson v. Daimler-Chrysler Corp., 306 F.3d 427, 433 (6th Cir. 2002); Wexler v. White's Fine Furniture, Inc., 246 F.3d 856, 862 (6th Cir. 2001); Weberg, 229 F.3d at 522, 524; Jacklyn, 176 F.3d at 926; Talley, 61 F.3d at 1248. As a practical matter, rarely will there be direct evidence from the lips of an employer proclaiming racial animus. Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir. 1998); Kline, 128 F.3d at 348.
Guster does not have any direct evidence of intentional race discrimination. There is no direct evidence that Register ever made any statements indicating that his decision to take adverse employment action against Guster was motivated by an intent or desire to discriminate against Guster on account of his race as an African American. Guster seeks to make out a prima facie case based solely on circumstantial proof.
The Supreme Court in McDonnell Douglas, 411 U.S. at 802-03, set forth the analytical framework governing Title VII cases where the plaintiff employee lacks direct evidence of an employer's discriminatory intent. See Hopson, 306 F.3d at 433; Farmer, 295 F.3d at 603; Ensley-Games, 100 F.3d at 1224; Burns, 91 F.3d at 842-43; Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1179 (6th Cir. 1996); Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1166 (6th Cir. 1996); Moore v. Nashville Elec. Power Bd., 72 S.W.3d 643, 651-52 (Tenn.Ct.App. 2001). To establish a prima facie case of disparate treatment based on circumstantial evidence, Guster is required to show four essential elements: (1) Guster belongs to a protected class of persons by virtue of his race; (2) Guster was qualified for the job; (3) Guster suffered an adverse employment action; and (4) a comparable white person similarly situated to Guster received more favorable treatment than Guster, or Guster was replaced as principal at FMS by a white person. Seay, 339 F.3d at 463; Hopson, 306 F.3d at 433; Clayton, 281 F.3d at 610; Perry, 209 F.3d at 601; Ensley-Gaines, 100 F.3d at 1224; Thurman, 90 F.3d at 1166; Harrison v. Metro Government of Nashville, 80 F.3d 1107, 1115 (6th Cir. 1996); Talley, 61 F.3d at 1246; Mitchell, 964 F.2d at 582-83; Spann, 36 S.W.3d at 467-68. To defeat a properly supported summary judgment motion, Guster must, at the very least, show that a genuine issue of material fact exists as to each element of his prima facie case. Burns, 91 F.3d at 843.
Under the third element of the prima facie case, Guster must prove that he suffered a materially adverse employment action. It must be more disruptive than a mere inconvenience or a minor alteration of job responsibilities. De minimis employment actions are not actionable under Title VII. White v. Burlington Northern Santa Fe Ry. Co., 310 F.3d 443, 450 (6th Cir. 2002); Ford v. General Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002); Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886 (6th Cir. 1996). To establish a materially adverse employment action, Guster must show a significant change in his employment status. An adverse employment action sufficient to support a THRA/Title VII claim includes a failure to hire or promote, a termination of employment; a reassignment, transfer, or demotion resulting in a decrease in salary or a less distinguished job title, a material loss of employee benefits, or significantly diminished job duties and responsibilities, or other similar factors unique to Guster's particular employment situation. Akers v. Alvey, 338 F.3d 491, 497-98 (6th Cir. 2003); White, 310 F.3d at 450; Ford, 305 F.3d at 553; Bowman, 220 F.3d at 461-62; Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999); Kocsis, 97 F.3d at 886; Martin, 244 F. Supp.2d at 876; Spann, 36 S.W.3d at 468.
If Guster is able to meet his burden of making out a prima facie claim based on circumstantial evidence, it would establish an inference or rebuttable presumption of intentional race discrimination. The burden of producing evidence then shifts to the employer, HCDE, to articulate a legitimate, nondiscriminatory reason for the adverse employment action taken against Guster. St. Mary's Honor Society v. Hicks, 509 U.S. 502, 506-07 (1993); Burdine, 450 U.S. at 252-53; Seay, 339 F.3d at 463; Johnson, 319 F.3d at 866; Hopson, 306 F.3d at 433; Ensley-Gaines, 100 F.3d at 1224; Burns, 91 F.3d at 843-44; Thurman, 90 F.3d at 1166; Wixson v. Dowagiac Nursing Home, 87 F.3d 164, 169 (6th Cir. 1996); Talley, 61 F.3d at 1246.
If HCDE articulates a legitimate, nondiscriminatory reason for its conduct, then the inference of race discrimination raised by the plaintiff's prima facie case is rebutted and the factual inquiry proceeds to a new level of specificity. United Postal Service v. Aikens, 460 U.S. 711, 714-15 (1983); E.E.O.C. v. Avery Denison, 104 F.3d 858, 861-62 (6th Cir. 1997); Thurman, 90 F.3d at 1166. The burden shifts back to Guster to produce evidence that HCDE's proffered reason is a pretext for intentional race discrimination against Guster. Hicks, 509 U.S. at 510-11; Seay, 339 F.3d at 463; Hopson, 306 F.3d at 433-34; Kline, 128 F.3d at 342-43; Monette, 90 F.3d at 1179. If HCDE presents a legitimate, nondiscriminatory reason for its adverse employment decision, Guster is required to demonstrate that a genuine issue of material fact exists as to whether HCDE's proffered reason is a pretext for discrimination in order for Guster to defeat the summary judgment motion. Seay, 339 F.3d at 467.
Pretext may be shown either directly by persuading the trier of fact that a discriminatory reason more likely motivated the employer's conduct, or indirectly by showing that the employer's proffered reason is unworthy of credence. Burdine, 450 U.S. at 256; E.E.O.C. v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 834 (6th Cir. 1997); Thurman, 90 F.3d at 1166; Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1082 (6th Cir. 1994). To successfully challenge the credibility of the employer's proffered explanation or reason for its conduct, Guster must be able to prove by a preponderance of the evidence either that: (1) the employer's proffered reason has no basis in fact; or (2) the proffered reason did not actually motivate the adverse employment action; or (3) the proffered reason was insufficient to motivate or warrant the adverse employment action. Seay, 339 F.3d at 463; Johnson, 319 F.3d at 866; Hopson, 306 F.3d at 434; Peters v. Lincoln Elec. Co., 285 F.3d 456, 471-72 (6th Cir. 2002); Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000); Yenkin-Majestic Paint, 112 F.3d at 834; Burns, 91 F.3d at 844; Maddux v. University of Tennessee, 62 F.3d 843, 848 (6th Cir. 1995); Manzer, 29 F.3d at 1084
Despite these shifting burdens of production of evidence, Guster at all times bears the ultimate burden of persuasion that his employer's conduct was the product of intentional race discrimination. Hicks, 509 U.S. at 510-12; Wixson, 87 F.3d at 169; Simon v. City of Youngstown, 73 F.3d 68, 71 (6th Cir. 1995). What Guster must prove is that the adverse employment action taken by Register and HCDE would not have occurred but for Guster's race as an African American. Simon, 73 F.3d at 70; Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988).
2. Guster Has Not Made Out Prima Facie Claim of Disparate Treatment
The Court concludes that Guster's race discrimination claim based on alleged disparate treatment must be dismissed because he has not made out the fourth element of his prima facie case. Because Guster has not made out a prima facie claim of disparate treatment, the Court need not reach the issue whether the reasons articulated by Register for his decision to take adverse employment action against Guster are a pretext for race discrimination.
When Register made the decision to remove Guster as principal at FMS and transfer him to SVTC as an assistant principal, Register employed Joshua Barber, an African-American, to replace Guster as the principal at FMS. Because Guster was replaced as principal at FMS by an African-American man, there is no inference of race discrimination. In sum, Guster has no proof that he was treated less favorably by HCDE and Register in comparison to a similarly situated white (Caucasian) person with regard to the appointment or assignment of an individual to fill the job of principal at FMS.
In an effort to establish a viable disparate treatment claim, Guster presents a different theory. Guster contends that if Register's decision not to renew Guster's contract as principal and to demote and transfer Guster to SVTC as an assistant principal was motivated by low standardized student test scores at FMS, then it amounts to race discrimination against Guster. In support of this convoluted claim, Guster alleges the following. HCDE operates elementary schools, middle schools, and high schools. The majority of these schools have definite student attendance zones. HCDE also has several magnet schools that are open to students from anywhere in the countywide school district. Guster says that, for the most part, the middle schools and high schools with attendance zones are "racially identifiable." In other words, Guster alleges that the inner-city middle schools and high schools in Chattanooga have a predominately African American student population, whereas the suburban middle schools and high schools have a predominately white student population.
The Hamilton County elementary schools and magnet schools are not at issue.
Guster further contends that HCDE has a policy or custom of assigning principals to its middle schools and high schools with attendance zones (non-magnet schools) based on race. If a school is zoned for a majority of African American students, then HCDE usually assigns an African American principal to that school. If a middle school or high school is zoned for a majority of white students, then HCDE assigns a white principal.
The State of Tennessee mandates standardized testing of students (TCAP tests). Guster alleges that, historically, there has been a direct correlation between a student's economic and family background, and the student's performance on the standardized tests. Guster says that, as a general rule, the predominately African American, inner-city schools operated by HCDE in the worst socio-economic areas of the City had significantly lower standardized test scores compared to the test scores of the more affluent predominately white suburban schools. Guster states that the socio-economic mix of students at FMS, a predominately African American inner-city school, was at the very bottom of society in the City and Hamilton County.
Guster goes on to argue that if low standardized test scores at FMS was part of the criteria used by Register to make the decision to demote and transfer Guster, then this discriminates against Guster based on his race. The gist of Guster's theory of disparate treatment is that because he is an African American, HCDE would not assign him to be the principal of a suburban school composed of predominately white students who have higher standardized test scores. Guster seeks to blame this situation on HCDE's alleged policy or custom of only assigning white principals to predominately white suburban schools. Guster reasons that HCDE's policy or custom discriminated against Guster based on his race in that HCDE kept Guster as principal at FMS, a predominately African American inner-city school with very low standardized test results, and then HCDE (Register) took adverse employment action against Guster due in large part to low standardized test scores at FMS. Guster contends that if HCDE did not have this racially discriminatory policy or custom, and if Guster had been assigned by HCDE to be the principal of a predominately white suburban school, then Guster would not have been subject to an adverse employment action based on low standardized test scores.
In his affidavit [Court File No. 27, p. 5], Guster sums up the nature of his disparate treatment claim. He states that the socio-economic makeup of the essentially all-black student population at FMS was the lowest in Hamilton County. According to Guster, it is unfair for HCDE to use the Tennessee standardized test results to blame him as principal for the low test results achieved by the FMS students. Guster argues that it becomes racially discriminatory where HCDE will only assign an African American principal (Guster) to a school that is racially identifiable as having predominately African American students coming from a poor soci-economic section of the City. Based on HCDE's policy or custom, Guster could not qualify to serve as the principal of a predominately white school on account of his race as an African American. Since the only schools to which Guster could be assigned by HCDE's standards were identifiably African American schools that were going to have lower standardized test scores, Guster asserts that he was being held to a different standard of performance as principal by HCDE on account of his race.
HCDE vehemently denies the existence of any policy, custom, or practice of assigning principals to public schools in Hamilton County based on their race. It is unnecessary for the Court to reach this particular issue and make a determination whether HCDE does or does not have a policy or custom of assigning African American principals to identifiably African American, inner-city schools and assigning only white principals to identifiably white, suburban schools. Even if we assume arguendo that Guster can present some proof that such an unwritten policy or custom may exist, it is immaterial to the adjudication of his disparate treatment claim against HCDE.
The facts show that HCDE did not initially assign Guster to FMS. Guster was already principal at FMS when the old City school system went out of existence and was consolidated with the Hamilton County school system effective July 1, 1997. HCDE "inherited" Guster as principal at FMS and that was perfectly acceptable to Guster because he at all times wanted to be the principal at FMS.
Prior to May 11, 2001, Guster never applied to HCDE and Register for any other jobs as principal at a different school in Hamilton County. Guster chose to remain at FMS. This is not a case where Guster applied for an open job as principal at a predominantly white, suburban school prior to May 11, 2001, and his application or transfer request was denied or rejected by HCDE and Register. It is patently illogical for Guster to now contend that he was subjected to disparate treatment by HCDE and Register assigning and retaining him as the principal at FMS when that is exactly the job that Guster desired. Guster cannot prevail on a claim of disparate treatment when his employer, HCDE, assigned Guster to the precise job that he desired, namely principal at FMS. Even after Register told Guster on May 11, 2001, that Guster's contract as principal at FMS would not be renewed for the 2001-2002 school year, Guster still wanted and hoped that he would be able to return to FMS as principal. [Guster Deposition, p. 157].
During the period of time from May 11, 2001, through October 2002, Guster did not apply for another job as principal with HCDE. As the Court reads Guster's deposition, Guster testified that he did not apply to HCDE and Register for any other jobs as principal after May 11, 2001. Guster believed that any application by him to HCDE for another job as principal at a different school in Hamilton County would be a waste of time and futile in light of Register's decision not to renew Guster's contract as principal for the 2001-2002 school year. Approximately one week after May 11, 2002, the principal at Howard High School resigned and the principal's job there became open. However, Guster did not apply to HCDE and Register for the position of principal at Howard High School. [Guster Deposition, pp. 148-49, 156-57]. Guster describes Howard High School as being a predominately African American, inner-city school.
Since Guster did not apply for a job as principal at a predominantly white, suburban school in Hamilton County either before or within a few months after May 11, 2001, Guster cannot prove that he was subjected to race discrimination in the form of disparate treatment by HCDE and Register based on his instant complaint. Up until his contract expired on June 30, 2001, Guster remained as principal at FMS which is exactly where he wished to be employed. HCDE and Register did not deny an application by Guster to be employed as principal at a different school after May 11, 2001, because, according to Guster's deposition, he never made any such application. Based on these facts, Guster simply cannot prove disparate treatment. HCDE and Register did not treat Guster less favorably than comparable, similarly situated white persons.
In the wake of the defendants' summary judgment motions, Guster attempts to salvage his disparate treatment claim by submitting his affidavits but his affidavits contradict his deposition. Guster's deposition was taken on October 29, 2002. [Court File No. 18]. After Guster's deposition, the defendants filed their summary judgment motions. Guster later submitted an affidavit he executed on May 16, 2003 [Court File No. 22] and a second affidavit he executed on June 11, 2003. [Court File No. 27]. In these affidavits, Guster states that during a meeting with Register and Rick Smith, Guster orally asked to be considered for the job of principal at Hixson High School. Guster asserts that Hixson High School is a predominately white, suburban school. Guster alleges that he was not considered for the open job of principal at Hixson High School and he blames this on race discrimination. According to Guster, Rick Smith said that he (Smith) would consider assigning Guster as an assistant principal at a suburban school but not principal at a suburban school.
The insurmountable problem for Guster is that his affidavits contradict his prior deposition. At no time during his deposition did Guster ever state that he had applied or requested to be considered for the specific job of principal at Hixson High School in or about May — June 2001. On the contrary, Guster indicates in his deposition that he did not apply for any other specific jobs as principal in Hamilton County during this time period.
On page 186 of his deposition, Guster testifies that during his meeting with Register and Rick Smith (presumably the meeting on May 11, 2001), Register and Smith generally said that Guster probably could not be a principal at a suburban school. Guster says he asked Register and Smith to make him a principal "out in suburbia." Guster said he would "go anyplace" that Register and Smith wanted him to go. However, there is nothing in Guster's deposition testimony indicating that Guster ever explicitly requested or applied for the specific job of principal at Hixson High School. To establish his disparate treatment theory, Guster must be able to prove that he actually applied for the principal's job at Hixson High School (or some other specific job as principal at a predominately white, suburban school) and his application was denied or rejected by HCDE and/or Register. Guster offers no such proof in his deposition.
When ruling on the defendants' summary judgment motions, the Court cannot consider Guster's affidavits on this particular point to the extent that the affidavits contradict his earlier deposition testimony. After the defendants have made their summary judgment motions, Guster may not create an issue of material fact by filing an affidavit that contradicts his previous deposition. Peck v. Bridgeport Machines, Inc., 237 F.3d 614, 619 (6th Cir. 2001); Hughes v. Vanderbilt University, 215 F.3d 543, 549 (6th Cir. 2000); Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997); Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 315 (6th Cir. 1989); Reid v. Sears, Roebuck Co., 790 F.2d 453, 460 (6th Cir. 1986).
In his affidavit executed on June 11, 2003 [Court File No. 27, pp. 6, ¶ 8], Guster generally states that since his demotion, he has applied for all middle school and high school positions for principal that were then available. With one exception (Sale Creek school), Guster does not identify the particular schools and explain whether they are predominately white, suburban schools. This vague, conclusory statement by Guster does not serve to prove his disparate treatment claim. Guster does not provide any probative details about the dates and relevant circumstances of any such applications to HCDE and Regiser. Guster did not testify about any such job applications in his deposition taken on October 29, 2002.
Guster goes on to state in Ms affidavit: "The most recent example of the refusal to appoint me to a principal position in a suburban or predominately white middle school or high school came just this year [2003]. A position for the principal of the combined middle and high school in Sale Creek was open. I was not appointed to that vacancy." Guster alleges that Register instead appointed an unidentified white person as principal at the Sale Creek School and that person's most recent work experience was as an elementary school principal. [Court File No. 27, pp. 6-7, ¶ 8]. This occurred on an unspecified date in 2003 which was approximately two years after Register decided to take adverse employment action against Guster on May 11, 2001. Any claim by Guster concerning the denial of an application for the principal's job at the Sale Creek school in 2003 is not properly before the Court because Guster has not amended his complaint under FED. R. CIV. P. 15(a) to plead this claim.
In any event, it is not clear from the sparse facts alleged by Guster whether he timely submitted an application to HCDE for this principal's job and whether Guster can prove that he was similarly situated in all relevant respects to the unidentified white person who was appointed by Register to be the principal at the Sale Creek school. Guster cannot defeat the defendants' summary judgment motions by making vague conclusory allegations. A mere scintilla of evidence and the mere possibility of a factual dispute is not enough to support Guster's disparate treatment claim and preclude summary judgment. Anderson, 477 U.S. at 252; McLean, 224 F.3d at 800; Hartsel, 87 F.3d at 799; Mitchell, 964 F.2d at 582.
Guster is required to prove that he was treated differently or less favorably than a similarly situated white person who had substantially similar or less qualifications than Guster. Guster must prove that he was similarly situated to the comparable white person in all material respects. Johnson, 319 F.3d at 867; Clayton, 281 F.3d at 610-11; Johnson, 215 F.3d at 572-73; Perry, 209 F.3d at 601; Jacklyn, 176 F.3d at 929; Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998); Ensley-Gaines, 100 F.3d at 1224; Harrison, 80 F.3d at 1115; Talley, 61 F.3d at 1247; Mitchell, 964 F.2d at 583; Spann, 36 S.W.3d at 468. Guster has not presented sufficient proof to establish this essential element. The white person employed to be the principal at Sale Creek School in 2003 may have had substantially better or greater qualifications for the principal's job compared to Guster; e.g., a higher performance evaluations as principal or some relevant experience that Guster was lacking. In the absence of specific facts and details, Guster has not adequately alleged and offered any proof showing that he was treated less favorably than a similarly situated white person who had substantially similar or less qualifications than Guster with regard to the principal's job at the Sale Creek school.
Accordingly, Guster's race discrimination claim under THRA based on alleged disparate treatment will be DISMISSED.
3. Guster Has Not Made Out Prima Facie Claim of Disparate Impact
It is not entirely clear from Guster's complaint and his memoranda of law [Court File Nos. 21, 26] whether he seeks to assert a claim based on disparate impact. Guster never uses the term "disparate impact," and he does not bother to cite any precedent or engage in any legal analysis concerning disparate impact. If Guster desires to make a disparate impact claim, he should explicitly discuss it and provide the Court with pertinent legal argument concerning disparate impact. The Court should not be put in the position of having to hazard a guess whether Guster is pursuing a cause of action for disparate impact under the THRA.
In his reply brief [Court File No. 26, p. 7], Guster contends: "To hold black principals responsible for low test score results is simply unfair. It is discriminatory when the school system maintains a policy of not allowing black educators to become principals in the predominately white schools where the test results will be higher." The Court infers from this statement that Guster is making a claim of disparate impact concerning African American principals and educators as a group. [ See also Court File No. 40, Guster's response in opposition to motion in limine]. To completely dispose of any and all race discrimination in employment claims that Guster may be raising under THRA, the Court will analyze the question of disparate impact.
After reviewing the record, the Court concludes that Guster has not made out a prima facie claim of race discrimination based on disparate impact. Guster contends that HCDE's reliance on standardized student test scores to evaluate the performance of school principals amounts to race discrimination. Guster's theory is that HCDE's use of standardized student test results (TCAP) to evaluate the performance of principals has a disparate impact upon African Americans because HCDE only assigns them to be principals at inner-city schools composed of predominately African American students from the lowest socio-economic groups and these students historically have the lowest test scores.
When bringing a disparate impact claim, Guster need not show that HCDE and Register intended to discriminate against Guster based on his race. Instead, what Guster must prove is that HCDE adopted an employment practice which, although neutral on its face, has caused a significantly disproportionate adverse impact on a Title VII protected group (African Americans) to which Guster belongs. The facially neutral employment practice must have the effect of race discrimination and cannot be justified by business necessity. Griggs v. Duke Power Co., 401 U.S. 424 (1971); International Bhd. of Teamsters, 431 U.S. 324, 335 n. 15 (1971); McConico, 1997 WE 242091, at ** 4-5; Kovacevich v. Kent State University, 224 F.3d 806, 830 (6th Cir. 2000); Alexander v. Local 496, Laborers' Intern. Union, 177 F.3d 394, 405-06 (6th Cir. 1999); United States v. City of Warren, Mich., 138 F.3d 1083, 1091-92 (6th Cir. 1998); Huguley, 52 F.3d at 1370; Abbott v. Federal Forge, Inc., 912 F.2d 867, 872 (6th Cir. 1990); Kent County Sheriff's Ass'n v. Kent County, 826 F.2d 1485, 1492-93 (6th Cir. 1987); Lynch v. Freeman, 817 F.2d 380, 383 (6th Cir. 1987); Chipman v. Grant County, 30 F. Supp.2d 975, 979 (E.D. Ky. 1998); Moore, 12 S.W.3d at 651.
In disparate impact cases, the Court is concerned with the consequences of employment practices, not simply the employer's motivation. Disparate impact cases are typically concerned with facially neutral employment practices or standards that in fact work to place a disproportionately harsh burden on a discrete group of employees who are protected under Title VII. Griggs, 401 U.S. at 432; Atlas Paper Box, 868 F.2d at 1494; Lynch, 817 F.2d at 383; Moore, 72 S.W.3d at 651.
To establish a prima facie claim of disparate impact, Guster is required to establish three essential elements: (1) HCDE has a specific employment practice; (2) the employment practice has a disproportionately harsh or adverse impact upon African Americans; and (3) there is a causal connection between the employment practice and the adverse impact. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657 (1989); Browning v. Rohm Haas Tennessee, Inc., 16 F. Supp.2d 896, 910 (E.D. Tenn. 1998).
The second element of the prima facie claim is usually proved by statistical evidence. Wards Cove, 490 U.S. 642; Alexander, 177 F.3d at 406-07; City of Warren, 138 F.3d at 1092-94; Scales v. J.C. Bradford and Co., 925 F.2d 901, 908 (6th Cir. 1991); Abbott, 912 F.2d at 872-75; Moore, 72 S.W.3d at 651. The evidence in disparate impact cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for the statistical disparities. Watson v. Ft. Worth Bank Trust, 487 U.S. 977, 987 (1988). The statistical evidence must be of a kind or degree sufficient to show that the employment practice caused a disparate impact upon African American principals and educators employed by HCDE. Watson, 487 U.S. at 994; Kovacevich, 224 F.3d at 830 (6th Cir. 2000); McConico, 1997 WL 242091, at *5; Scales, 925 F.2d at 908; Abbott, 912 F.2d at 872; Browning, 16 F. Supp.2d at 911.
For statistics to be valid and constitute probative evidence in a discrimination case, both the methodology and the explanatory power of the statistical analysis must be sufficient to permit a reasonable inference of discrimination. Rocha v. Great American Ins. Co., 850 F.2d 1095, 1101 (6th Cir. 1988). "Unless the statistics, standing alone or in comparison, are sufficient to lead the mind naturally to the conclusion sought, they have no probative value; they do not move the proof one way or the other." Simpson v. Midland-Ross Corp., 823 F.2d 937, 944 (6th Cir. 1987); see also Rocha, 850 F.2d at 1101.
If Guster meets his burden of showing a prima facie claim, it raises an inference or rebuttable presumption of race discrimination by disparate impact and the burden of producing evidence shifts to HCDE to articulate a legitimate, nondiscriminatory reason for its employment practice. In this phase, HCDE may rebut the inference of race discrimination by showing that the employment practice is a "business necessity." Wards Cove, 490 U.S. at 658-59; Alexander, 111 F.3d at 407; Kovacevich, 224 F.3d at 830; City of Warren, 138 F.3d at 1091-92; Scales, 925 F.2d at 908; Zamlen v. City of Cleveland, 906 F.2d 209, 217 (6th Cir. 1990); Lynch, 817 F.2d at 383; Moore, 72 S.W.3d at 653. The Court must also consider whether alternative employment practices are available that would achieve the same business ends desired by HCDE with a less racially discriminatory impact. Wards Cove, 490 U.S. at 658; Kovacevich, 224 F.3d at 830; Scales, 925 F.2d at 908; Police Officers v. City of Columbus, 916 F.2d 1092, 1096 (6th Cir. 1990); Kent County, 826 F.2d at 1492; Lynch, 817 F.2d at 383; Browning, 16 F. Supp.2d at 910.
In Wards Cove, 490 U.S. at 659, the Supreme Court explains that at the justification stage, the dispositive issue is whether the challenged employment practice serves, in a significant way, the legitimate employment and business goals of the employer. The employer, HCDE, bears the burden of producing evidence of a business justification for its employment practice. However, the burden of persuasion always remains with plaintiff Guster. The ultimate burden of proving that race discrimination against a protected group has been caused by the disparate impact of a specific employment practice remains with Guster at all times. Id. at 659-60; City of Columbus, 916 F.2d at 1096; Grant v. General Motors Corp., 908 F.2d 1303, 1306 (6th Cir. 1990); Zamlen, 906 F.2d at 217. Guster has identified a specific employment practice that he asserts has been adopted by HCDE. The alleged employment practice is that HCDE only assigns African American principals to identifiably African American inner-city schools where HCDE knows that the standardized student tests scores (TCAP) have historically been the lowest in Hamilton County, and HCDE then evaluates the performance of the African American principals based on these test scores.
The Court concludes that Guster fails to make out a prima facie claim of disparate impact because the specific employment practice he identifies is not facially neutral. The disparate impact theory of liability is available only to challenge facially-neutral employment practices. E.E. O. C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1278 (11th Cir. 2000). The doctrine of disparate impact created and developed in Griggs, 401 U.S. 424, and its progeny is designed only to redress facially-neutral employment practices that cause disproportionately harsh, adverse effects on groups protected by Title VII. Kovacevich, 224 F.3d at 830; Joe's Stone Crab, 220 F.3d at 1278. The employment practice identified by Guster (assigning principals to schools on the basis of race) is facially discriminatory and falls into the realm of disparate treatment rather than disparate impact.
Furthermore, Guster has not presented any evidence to show that HCDE's alleged employment practice has a disparate impact or disproportionately adverse effect upon African American principals and educators as a group. Guster offers no statistical evidence, or any other kind of evidence, showing that the employment practice he complains about has resulted in or caused African American principals and educators as a discrete group to suffer adverse employment actions at the hands of HCDE and Register. Guster has not shown the third element of his prima facie case — a causal connection between the employment practice and any adverse, disparate impact upon African American principals as a group.
There is no proof that African American principals and educators employed by HCDE (other than Guster) have ever been discharged, terminated, demoted, denied promotions, and involuntarily transferred or reassigned to lesser jobs based on the standardized student test scores from inner-city schools having a predominately African American student population with a low socio-economic background. There is no proof that other African American principals and educators have ever applied to HCDE for an open principal's job at a suburban school in Hamilton County with a predominately white student population and that HCDE or Register denied their applications. Moreover, there is no proof that other African American principals and educators employed by HCDE have ever requested that they be transferred or reassigned by HCDE to an open principal's job at a suburban school in Hamilton County with a predominately white student population and that HCDE or Register denied such a request for transfer or reassignment. In short, there is no proof showing that HCDE systematically excluded qualified African American persons from being hired as principals at predominately white suburban schools. In the absence of such evidence, Guster's disparate impact claim fails and it must be dismissed. Cf. Joe's Stone Crab, 220 F.3d at 1279; McConico, 1997 WL 242091, at *5.
The Court also observes that the standardized student proficiency testing mandated by the State of Tennessee, standing alone, appears to be a valid, objective, and non-discriminatory means of measuring the effectiveness and performance of public schools, teachers, and school administrators, including FMS and Guster. In his affidavit [Court File No. 27, p. 4], Guster states he does not take the position that the standardized test data (TCAP) is per se racially discriminatory. HCDE's reliance upon TCAP results in evaluating the effectiveness and performance of schools, teachers, and principals in Hamilton County clearly serves a legitimate educational purpose. The TCAP tests are mandated by the State of Tennessee Department of Education and constitute an acceptable means of measuring whether schools are succeeding or failing in their most important mission of educating students. 4. Register and Matthews Are Not Individually Liable Under THRA
The only proper defendant on the THRA claim is Guster's employer, HCDE. Defendants Register and Matthews are not individually liable under the THRA because they are not Guster's employer. TENN. CODE ANN. § 4-21-102(4) defines the term "employer" as including the State of Tennessee, or any political or civil subdivision thereof, and "persons employing eight (8) or more persons within the state, or any person acting as an agent of an employer, directly or indirectly." HCDE is a "person" and Guster's "employer" as those terms are defined in TENN. CODE ANN. § 4-21-102(4) and (14). The language "any person acting as an agent of the employer" in § 4-21-102(4) does not impose individual liability on Register and Mathhews under the THRA. Carr, 955 S.W.2d at 835; see also Myers v. Sonic Drive-In, 2001 WL 34079304, *7 (E.D. Tenn. Aug. 31, 2001); Burnett v. Tyco Corp., 932 F. Supp. 1039, 1040-43 (W.D. Tenn. 1996).
Guster argues that Register may held be individually liable under the THRA as an aider and abettor. This argument fails. The THRA is broader than Title VII concerning who may be liable for discriminatory employment practices. TENN. CODE ANN. § 4-21-301(2) provides that it is a discriminatory practice for a person to "[a]id, abet, incite, compel or command a person to engage in any of the acts or practices declared to be discriminatory by" the THRA. An individual who aids, abets, incites, compels, or commands an employer to engage in employment-related discrimination prohibited by the THRA may be held personally liable. Carr, 955 S.W.2d at 836; see also Thompson v. City of Memphis, 2004 WL 68522 (6th Cir. Jan. 12, 2004); Myers, 2001 WL 34079304, at *7.
The Court finds that Register cannot have any liability as an alleged aider and abettor pursuant to TENN. CODE ANN. § 4-21-301(2). Guster has not made out a viable prima facie case of either disparate treatment or disparate impact under THRA. Because there is no violation of the THRA by Guster's employer, HCDE, there is no underlying THRA violation for Register to aid and abet.
Accordingly, Guster's claim of race discrimination brought under the THRA is DISMISSED WITH PREJUDICE as to all defendants.
C. Guster Has No Right To Tenure In Principal's Post
Guster claims his right to tenure as a principal that has been violated by HCDE and Register. Guster contends that he could not be demoted from principal except for good cause, and then only after he had been given notice and a hearing. The tenure claim lacks merit and will be DISMISSED. The Court concludes that Guster did not have any right to tenure in his position as principal under Tennessee law.
Guster argues that he enjoys tenure in his principal's post by virtue of a 1935 Private Act by the Tennessee General Assembly amending the Charter of the City of Chattanooga which provides in relevant part:
Section 5 — Be it further enacted, that all teachers and principals now employed by said city who have served for two (2) years or those who have not served for two (2) years upon the completion of two (2) years of satisfactory service and all teachers and principals hereafter employed upon the completion of two (2) years of satisfactory service, shall be employed on permanent tenure of office and shall not be demoted or dismissed except for cause, inefficiency or immorality or on account of discontinuance of position, in which latter case the teacher or principal shall receive the first appointment to any position for which qualified . . .
Chapter 256, Tennessee Private Acts of 1935 (emphasis added).
Guster says that whatever tenure rights he acquired in the position of principal under the Private Act survive the abolition of the City school system and endure to this day. This argument fails. The Court concludes that the 1935 Private Act cannot be the source of any tenure right for Guster in his principal's job. The Tennessee Education Improvement Act of 1992 supercedes and has repealed by implication the Private Act with regard to the tenure of school principals. Knox County Educ., 60 S.W.3d 65.
Moreover, the Court finds that Guster never acquired tenure as a principal under the Private Act because he did not complete two years of service as principal under the former City school system before it was abolished. Guster was a principal in the City of Chattanooga school system for only one year. He was principal at FMS for the 1996-1997 school year. Effective July 1, 1997, the City school system ceased to exist and it was consolidated with the Hamilton County school system. When the City school system was abolished on July 1, 1997, Guster did not have two years of service as principal in the City school system, therefore, he did not acquire tenure as principal under the Private Act. Guster did not acquire a right of tenure as principal that survives the abolition of the City school system.
Guster seeks to overcome these facts by arguing that on July 1, 1997, he was in a "tenure track" position as principal that was protected by TENN. CODE ANN. § 49-5-203. Guster contends he was entitled to be considered as having acquired tenure as principal under the City's Private Act at the end of his second year as principal at FMS on June 30, 1998.
The Court rejects Guster's argument on this point. Guster does not cite any relevant law or Tennessee precedent. TENN. CODE ANN. § 49-5-203 does not support Gutser's position. Once the City school system was abolished and ceased to exist effective July 1, 1997, whatever tenure rights that Guster had acquired under the Private Act are determined as of that date. Guster cannot take one year as principal in the former City school system (1996-1997 school year) and add it together with one year as principal in the newly consolidated Hamilton County school system (1997-1998 school year) to establish that he has tenure as principal under the City's Private Act.
Guster misinterprets and misapplies Tennessee law governing the tenure rights of persons who occupy the position of principal. Guster's reliance on TENN. CODE ANN. § 49-5-203 is misplaced. TENN. CODE ANN. § 49-5-203 provides in pertinent part:
49-5-203. Change in school organization — Teacher's rights preserved. —
(a) The change in the governmental structure of a school system or institution through the process of annexation, unification, consolidation, abolition, reorganization or transfer of the control and operation of a school system or institution to a different type governmental structure, organization or administration shall not impair, interrupt or diminish the rights and privileges of a then existing teacher, and such rights and privileges shall continue without impairment, interruption or diminution.
(b) If the teacher becomes the employee of another school system or institution as a result of a change in the governmental structure, then the rights and privileges of such a teacher shall continue without impairment, interruption or diminution as obligations of the new government, organization or administration.
(c) "Rights and privileges," as used in this section, includes, but is not limited to, salary, pension or retirement benefits, sick leave accumulation, tenure status and contract rights, whether granted by statute, private act or governmental charter.
TENN. CODE ANN. § 49-5-203 does not govern or purport to establish the right of a principal to tenure in his principal's post. The statute only governs the rights of teachers and the right to tenure as a teacher. There is nothing in the plain language of the statute that provides for a principal to have and retain a right to tenure in the post of principal. Although TENN. CODE ANN. § 49-5-203 preserves and protects any tenure rights Guster may have as a teacher, it does not preserve or protect any right he claims to have to tenure in the position of principal. Under Tennessee law, a principal does not have a right of tenure in his or her job as principal.
The Tennessee Education Improvement Act of 1992 vests the director of schools, Superintendent Register, with the power to employ, transfer, and discharge school system employees, including principals. See Marion County Bd. of Educ., 86 S.W.3d at 206-07. Pursuant to TENN. CODE ANN. § 49-2-303(a)(1), Superintendent Register has the exclusive power to select, contract with, and hold accountable all principals in the Hamilton County public school system. Superintendent Register may choose not to renew a principal's contract. The reasons for non-renewal of a principal's contract may include, but are not limited to, inadequate performance as determined by evaluations. TENN. CODE ANN. § 49-2-303(a)(1) further provides: "A principal who has tenure as a teacher shall retain all rights of such status, expressly including those specified in § 49-5-510." This means that a principal who has tenure as a teacher retains all rights of his status as a tenured teacher. It does not mean that a principal has any right to tenure in his post as principal.
The language in TENN. CODE ANN. § 49-2-303(a)(1) referring to teacher tenure rights reflects Tennessee law that no principal has tenure in the position of principal. Marion County Bd. of Educ., 86 S.W.3d at 206-07; McKenna, 574 S.W.2d at 530; see also TENN. CODE ANN. § 49-5-501(11)(A) ("Administrative and supervisory personnel shall have tenure as teachers and not necessarily tenure in the specific type of position in which they may be employed"); Sharp, 285 F.3d at 487 (Tennessee legislature did not intend that a principal should have a statutory entitlement to his principalship). As the Tennessee Court of Appeals explains in Marion County Bd. of Educ., 86 S.W.3d at 207, TENN. CODE ANN. § 49-2-303(a)(1) "clearly dispels any expectation of tenure in the position of principal, making retention in such position subject to contracts which, by statute, cannot exceed four years."
Accordingly, Guster's claim that his purported right to tenure in his principal's post under Tennessee law has been violated is DISMISSED WITH PREJUDICE as to all defendants.
D. Breach of Contract and TENN. CODE ANN. § 49-2-303
The breach of contract claim is predicated on Guster's contention that Register decided not to renew the principal's contract even though Guster had recently received a favorable work performance evaluation. [Court File No. 26, pp. 9-10]. After reviewing the principal's contract Guster executed on August 2, 2000, the Court concludes that the breach of contract claim must be dismissed. There are no genuine issues of material fact in dispute and the defendants are entitled to summary judgment as a matter of law.
TENN. CODE ANN. § 49-2-303(a)(1) provides that contracts with public school principals "shall include performance standards and require periodic written evaluations by the director to be conducted in the manner and with the frequency that the director determines proper." It further provides that reasons for the nonrenewal of a principal's contact "may include, but are not limited to, inadequate performance as determined by the evaluations." Section 49-2-303(a)(1) affords Superintendent Register great discretion and wide latitude when deciding whether to renew a school principal's contract. There is nothing in § 49-2-303(a)(1) requiring or making it mandatory that Register renew Guster's contract as a principal just because Guster had a favorable written evaluation from Travers.
The relationship between a director of schools (here Superintendent Register) and the principals he employs is a highly personal one. Superintendent Register must necessarily be accorded considerable discretion in making personnel decisions regarding the employment and retention of principals. Sharp, 285 F.3d at 486; Fleming v. Wade, 568 S.W.2d 287, 290 (Tenn. 1978). This policy is embodied and reflected in § 49-2-303(a)(1).
The contract provides that Guster would be evaluated in accordance with TENN. CODE ANN. § 49-2-303(a)(1). Register and HCDE did not breach this contract provision. Guster received a formal evaluation in writing in compliance with the contract and § 49-2-303(a)(1).
Section IV of the contract is captioned "Non-renewal of Performance Contract." It tracks the language in § 49-2-303(a)(1) . Section IV of the contract provides: "Reasons for non-renewal of a principal's performance contract may include, but not be limited to, inadequate performance as determined by evaluations (§ TCA 49-2-303). The superintendent shall inform a principal of such nonrenewal on or before May 15 of the year in which the contract expires."
The plain language in the contract is clear and unambiguous. The contract unequivocally gives Register the authority and discretion to decide not to renew Guster's contract as principal, regardless of the formal written evaluation of Guster's work performance. In making his decision whether to renew Guster's contract as principal, Register could consider the formal written evaluation but Register was not limited in any respect by the evaluation. Register had the right under the contract and § 49-2-303(a)(1) to not renew Guster's contract as principal despite Guster receiving a favorable evaluation from Travers.
Guster argues that TENN. CODE ANN. § 49-2-303(a)(1) contemplates there must be some reasonable cause for the nonrenewal of a principal's contract. He does not cite any legal precedent to support this theory. The Court disagrees with Guster's interpretation of § 49-2-303(a)(1). The Court construes § 49-2-303(a)(1) to mean that a director (superintendent) of schools has broad authority and discretion to decide not to renew a principal's contract with or without reasonable cause. Guster was employed as a principal for one year and the contract expired June 30, 2001. Based on the terms of the contract and § 49-2-303(a)(1), Guster had no right or reasonable expectation that Register was required to renew Guster's contract as principal absent good cause for nonrenewal. When the contract expired effective June 30, 2001, Guster's contractual right to employment as a principal in the Hamilton County public school system was extinguished. This Court's construction of § 49-2-303(a)(1) is consistent and in harmony with the case law holding that the Tennessee legislature does not intend that a school principal have a statutory entitlement to his principalship. Sharp, 285 F.3d at 487.
Accordingly, the breach of contract claim is DISMISSED WITH PREJUDICE.
D. Wrongful Non-renewal of Principal's Contract: TENN. CODE ANN. § 49-2-303
In addition to his breach of contract claim, Guster asserts a novel cause of action for compensatory damages pursuant to TENN. CODE ANN. § 49-2-303(a)(1) for "wrongful non-renewal" of his principal's contract. [Court File No. 26, p. 10]. Guster contends he is entitled to relief on the theory that HCDE and Register violated TENN. CODE ANN. § 49-2-303(a)(1) by not renewing Guster's contract to be a principal in the Hamilton County school system for the 2001-2002 school year.
Guster does not cite any legal precedent showing that such a private cause of action for "wrongful non-renewal" of the school principal's contract exists under Tennessee law. There is nothing in the Tennessee statutes, including § 49-2-303, that creates such a private cause of action for the benefit of Guster to recover monetary damages. There is no such cause of action for damages under Tennessee common law. This Court is required to follow and apply Tennessee law. This federal district court cannot invent or conjure up a new, unprecedented cause of action for "wrongful non-renewal" of a school principal's contract where the cause of action is not recognized and does not exist under Tennessee law.
Accordingly, Guster's claim for wrongful non-renewal of his principal's contract is DISMISSED WITH PREJUDICE. The Court reaches this conclusion for two reasons. First, Guster does not have a private cause of action under TENN. CODE ANN. § 49-2-303 for "wrongful non-renewal" of his school principal's contract. The Tennessee legislature has not created any such private cause of action for Guster's benefit under the Tennessee statutory scheme governing the employment of public school principals.
Second, the Court considers the wrongful non-renewal of contract claim as essentially being part and parcel of Guster's breach of contract claim. As discussed supra, the breach of contract claim lacks merit and is being dismissed. For the same reasons, Guster's wrongful non-renewal of contract claim must likewise be dismissed. HCDE and Register did not breach the contract, and there was no "wrongful non-renewal" of the principal's contract in violation of TENN. CODE ANN. § 49-2-303 as alleged by Guster.
E. Wrongful Transfer: TENN. CODE ANN. § 49-5-510
In his briefs [Court File No. 21, p. 10, and File No. 26, p. 10], Guster argues that he has a private cause of action under Tennessee law for wrongful transfer. Guster contends the defendants' summary judgment motions should be denied because a jury could reasonably find that Register's decision to transfer Guster to SVTC was arbitrary and capricious, politically motivated, and otherwise improper. As part of his argument that the transfer was done for an improper motive or reason, Guster alleges his transfer "was based upon a racial factor, in addition to violating the Tennessee Human Rights Act as well as a host of federal laws, it specifically violates the provisions of TENN. CODE ANN. § 49-2-3 03(a)(2) which specifically prohibits the assignment and transfer of principals on account of race." [Court File No. 26, p. 10]. TENN. CODE ANN. § 49-2-303(a)(2) provides that the employment of principals shall be without discrimination on account of race.
Guster does not provide any in depth analysis and explanation of Tennessee law governing wrongful transfer. He merely cites Knox County Educ., 60 S.W.3d at 75.
The Court concludes that this claim fails and must be dismissed. TENN. CODE ANN. §§ 49-5-510 provides that the director of schools, when necessary to the efficient operation of the school system, may transfer a teacher from one location to another within the school system, or from one type of work to another for which the teacher is qualified and licensed. The term "teacher" in § 49-5-510 is defined as meaning and including principals. TENN. CODE ANN. § 49-5-501(10); see also Sharp, 285 F.3d at 487.
Superintendent Register's authority and power to transfer Guster to another school is subject to TENN. CODE ANN. § 49-5-510. Knox County Educ., 60 S.W.3d at 75. Principals and teachers transferred pursuant to § 49-5-510 are entitled to protection from arbitrary and capricious transfers, and from transfers actuated by political or other improper motives. A transferred teacher or principal may bring a direct action in the courts to obtain a judicial determination on the limited issue whether the transfer was arbitrary and capricious, politically motivated, or otherwise done for an improper motive. Marion County Bd. of Educ., 86 S.W.3d at 208, 215; Knox County Educ., 60 S.W.3d at 75; Springer v. Williamson County Bd. of Educ., 906 S.W.2d 924, 926 (Tenn.Ct.App. 1995); Pullum v. Smallridge, 652 S.W.2d 338 (Tenn. 1983); McKenna, 574 S.W.2d at 533-34; Mitchell v. Garrett, 510 S.W.2d 894, 898 (Tenn. 1974).
The scope of judicial review of transfer decisions is limited. Judicial review is circumscribed by the broad discretion Tennessee statutes give to the directors/superintendents of public schools in personnel matters, and the inherently executive nature of decisions to transfer principals and teachers for the efficient operation of the school system. Marion County Bd. of Educ., 86 S.W.3d at 215; Pullum, 652 S.W.2d at 341; McKenna, 574 S.W.2d at 534. There is a rebuttable presumption that transfers are fair and proper. Under Tennessee law, the courts presume that actions taken by the directors/superintendents of schools to transfer principals and teachers are not arbitrary and capricious, but are reasonable and fair unless there is clear evidence to the contrary. Marion County Bd. of Educ., 86 S.W.3d at 208; Mitchell, 510 S.W.2d at 898.
The Court finds that Guster has not properly pleaded a wrongful transfer cause of action in his complaint under Tennessee law. A cause of action for wrongful transfer does not exist in this lawsuit based on the complaint. Consequently, Guster cannot defeat the defendants' summary judgment motions based on a wrongful transfer claim he has not properly pleaded and which he only raises for the first time in a brief.
Guster's complaint does not contain or use the specific words "transfer" or "wrongful transfer," nor does the complaint cite TENN. CODE ANN. § 49-5-510. The complaint avers that Guster was demoted. The terms "demotion" and "transfer" do not necessarily have the same meaning. For purposes of this opinion, the Court assumes arguendo that Guster's demotion and reassignment to assistant principal at SVTC, with a reduction in salary and other employment benefits, constitutes a transfer.
The Court makes this assumption for two reasons. In paragraph 8 of his complaint, Guster alleges he was demoted from his position as principal to a lesser position of assistant principal "at another school." The language "at another school" can reasonably be interpreted to mean that Guster avers he was transferred from FMS to a different school. Moreover, in McKenna, 574 S.W.2d 527, the Supreme Court of Tennessee determined that a transfer occurred when the principal of a large elementary school was demoted or reassigned to the position of principal and teacher at a smaller elementary school with a reduction in salary. In Marion County Bd. of Educ., 86 S.W.3d at 207, the Tennessee Court of Appeals recognizes that reassignment of a principal to a position with only teaching duties is considered to be a "transfer" within the school system governed by TENN. CODE ANN. § 49-5-510. See Pullum, 652 S.W.2d at 340-41; White v. Banks, 614 S.W.2d 331, 334 (Tenn. 1981); Warren v. Polk County Bd. of Educ., 613 S.W.2d 222, 225-26 (Tenn. 1981).
The main problem with Guster's complaint is that he does not make a demand for limited judicial review of the transfer in the setting of a nonjury trial, nor does Guster demand any declaratory or injunctive relief. The complaint does not demand that the transfer be rescinded or reversed, and that Guster be reinstated to his former job as principal of FMS. The complaint does not demand that Guster be transferred back to FMS in any teaching or administrative job. The complaint only demands a jury trial, compensatory damages, and attorney's fees. This is insufficient to properly plead a cause of action for wrongful transfer of a school principal under Tennessee law. Guster's complaint, as drafted, is inconsistent with a Tennessee cause of action for wrongful transfer of a school principal and limited judicial re view as explained Marion County Bd. of Educ., 86 S.W.3d at 208, 215; Knox County Educ., 60 S.W.3d at 75; Springer, 906 S.W.2d at 926; Pullum, 652 S.W.2d 338; McKenna, 574 S.W.2d at 533-34; and Mitchell, 510 S.W.2d at 898.
Guster does not cite, and this Court through independent legal research has not found, any Tennessee precedent which allows a plaintiff bringing a wrongful transfer claim to recover compensatory damages and to have a jury trial. Under Tennessee law, a principal or teacher claiming wrongful transfer may bring a civil suit to obtain judicial review of the transfer decision at a bench trial without a jury and may seek only injunctive or declaratory relief. Because Guster's complaint does not demand such limited judicial review of the transfer decision at a nonjury trial and he does not demand any injunctive relief or a declaratory judgment, the Court concludes that Guster has failed to properly plead a Tennessee claim for wrongful transfer. In sum, the complaint does not put the defendants on fair notice that Guster is pleading a cause of action seeking limited judicial review of the transfer under TENN. CODE ANN. 49-5-510 and relevant Tennessee legal precedent.
The Court does not reach and address the merits of a purported wrongful transfer claim since no such cause of action is pleaded by Guster in his complaint under Tennessee law and it is not properly before this Court. Accordingly, to the extent that Guster opposes the defendants' motions for summary judgment based on the argument that he has a claim for wrongful transfer under Tennessee law, this argument fails because Guster has not properly pleaded a wrongful transfer cause of action in his complaint. There is no such cause of action before the Court. Raising the wrongful transfer issue in Guster's brief filed in response to the defendants' summary judgment motions does not rectify and remedy the failure to properly plead this particular cause of action in the complaint.
It is difficult to perceive how Guster could ever prevail on a claim that his transfer from FMS to SVCT was motivated by race discrimination. Guster was transferred or reassigned to SVCT, a suburban school composed of predominately white students. Moreover, the Court is dismissing on summary judgment Guster's race discrimination claims brought under the THRA.
F. "Whistleblower" Claim Under TENN. CODE ANN. § 50-1-304 and Common Law Retaliatory Discharge
Guster next makes a claim under the Tennessee Public Protection Act, TENN. CODE ANN. § 50-1-304, commonly known as the Tennessee "whistleblower" statute. He also asserts a companion claim of retaliatory discharge under Tennessee common law. Although the two causes of action are very similar in many respects, they are not identical and must be analyzed separately, especially in the present case since Guster is a public employee. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 534-37 (Tenn. 2002).
In Tennessee, the common law action for retaliatory discharge arises out of Tennessee's long adherence to the employment at-will doctrine. This doctrine provides that an employment contract for an indefinite term may be terminated at the will of either the employer or employee at any time for any cause or for no cause. Guy, 79 S.W.3d at 534-35; Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555 (Tenn. 1988). The Supreme Court of Tennessee holds that the employment at-will doctrine is not absolute. Restrictions have been imposed upon the right of an employer to terminate an employee when the employee is discharged in contravention of well-defined and established public policy. Guy, 79 S.W.3d at 535; Chism, 762 S.W.2d at 556. The essence of the public policy exception to the employment at-will doctrine is that an employee may claim damages for retaliatory discharge when the motivating factor for the termination of his employment violates a clear public policy evidenced by an unambiguous constitutional, statutory or regulatory provision. Guy, 79 S.W.3d at 535; Chism, 762 S.W.2d at 556.
The Supreme Court of Tennessee recognizes there exists a cause of action under Tennessee common law for retaliatory discharge when an at-will employee is terminated for refusing to remain silent about illegal activities. To prevail on such a common law claim, the plaintiff employee is required to prove that the employer's violation was a substantial factor in the employee's discharge. Guy, 79 S.W.3d at 535; Chism, 762 S.W.2d at 557.
Guster cannot maintain a common law claim of retaliatory discharge against Register and Matthews individually for the simple reason that they are not Guster's employer. HCDE is Guster's employer. A common law claim for retaliatory discharge can only be maintained against the employer. Furthermore, Matthews enjoys absolute immunity from suit on this tort action as a member of the Hamilton County School Board under the Tennessee Governmental Tort Liability Act ("TGTLA"), TENN. CODE ANN. § 29-20-201(b)(2).
Guster's common law retaliatory discharge claim brought against HCDE must be dismissed because HCDE has absolute immunity from suit pursuant to the TGTLA, TENN. CODE ANN. § 29-20-201. In Guy, 79 S.W.3d at 537, the Supreme Court of Tennessee explains that sovereign immunity is not removed for common law claims of retaliatory discharge citing Williams v. Williamson County Bd. of Educ., 890 S.W.2d 788, 790 (Tenn.Ct.App. 1994); and Montgomery v. Mayor of Covington, 778 S.W.2d 444, 445 (Tenn.Ct.App. 1988). Sovereign immunity is a complete defense for a governmental entity in Tennessee to an employee's common law claim of retaliatory discharge from employment. Williams, 890 S.W.2d at 790.
Guster's common law claim against HCDE also fails because he was not an at-will employee who was discharged from employment by Register and HCDE. Guster had a one year contract of employment as a principal within the Hamilton County public school system. Guster was not terminated or discharged as principal during the term of the contract. Guster completed the full term of the one year contract and he remained employed as principal at FMS through June 30, 2001, as agreed to in the contract. When the contract expired on June 30, 2001, Register exercised his authority not to renew the principal's contract with Guster. Register chose to offer Guster a new contract for the 2001-2002 school year as an assistant principal. Therefore, Guster cannot make out a prima facie case of common law retaliatory discharge.
Guster does not fare any better under the Tennessee whistleblower statute. TENN. CODE ANN. § 50-1-304 is cumulative to, and does not preempt or abrogate, the Tennessee common law cause of action for retaliatory discharge. An employee can bring retaliatory discharge claims under both Tennessee common law and § 50-1-304. Guy, 79 S.W.3d at 537.
TENN. CODE ANN. § 50-1-304(a) provides that no employee shall be "discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities." The term "illegal activities" is defined in § 50-1-304(c) as meaning "activities which are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare." Section 50-1-304(d)(1) provides that any employee terminated in violation of § 50-1-304(a) shall have a cause of action against the employer for retaliatory discharge and to recover damages.
There are two key differences between TENN. CODE ANN. § 50-1-304 and common law retaliatory discharge. First, unlike common law retaliatory discharge, § 50-1-304 applies to public employees and government employers. Section 50 — 1-304(g)(1) defines the term "employee" as including "an employee of the state, or any municipality, county department, board, commission, agency, instrumentality, political subdivision or any other entity thereof." Section 50-1-304(g)(2) defines the term "employer" as including "the state, or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity thereof." There is no sovereign immunity to claims brought against HCDE under § 50-1-304. Guy, 79 S.W.3d at 537.
The second difference is that TENN. CODE ANN. § 50-1-304 requires a plaintiff employee to prove an exclusive causal relationship between his whistleblowing activity and the employer's decision to discharge the employee. One element of a claim brought under § 50-1-304 is a showing by the plaintiff employee that his whistleblowing activity was the sole reason for his discharge or termination. Guy, 79 S.W.3d at 535, 537; see also Goldberg v. Media General, Inc., 2003 WL21920923, at *17-18 (E.D. Tenn. June 18, 2003); Hill, 2001 WL 694479, at *5; Darnall v. Ak Homecare, Inc., 1999 WL 345225 (Tenn.Ct.App. June 2, 1999).
To make out a prima facie whistleblower claim under § 50-1-304, Guster is required to prove four elements: (1) his status as an employee of HCDE; (2) his refusal to either participate in or remain silent about illegal activities; (3) he was discharged or terminated from employment by his employer, HCDE; and (4) there is an exclusive causal relationship between the employer's decision to discharge Guster from employment and his refusal to either participate in or remain silent about illegal activities. Goldberg, 2003 WL 21920923, at *17-18; Caruso v. St. Jude Children's Research Hosp., Inc., 215 F. Supp.2d 930, 937 (W.D. Tenn. 2002); Wooley v. Madison County, Tennessee, 209 F. Supp.2d 836, 845 (W.D. Tenn. 2002); Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1059, 1063 (E.D. Tenn. 1995); Hill v. Perrigo of Tennessee, 2001 WL 694479, *3 (Tenn.Ct.App. June 21, 2001).
The whistleblower claim by Guster under TENN. CODE ANN. § 50-1-304 fails because he has not made out a prima facie case. Guster clearly cannot maintain a § 50-1-304 claim against Register and Matthews individually because they are not his employer. Supervisors, even if they have the exclusive authority to hire and terminate employees, are not employers under § 50-1-304. Wooley, 209 F. Supp.2d at 845; Baines v. Wilson County, 2002 WL 192601, *6 (Tenn.Ct.App. Feb. 7, 2002).
Guster cannot prove a prima facie claim against his employer, HCDE, for retaliatory discharge under § 50-1-304. Guster cannot establish the second, third, and fourth elements of his prima facie case.
With regard to the second element of the prima facie case, Guster cannot show that he refused to participate in or remain silent about illegal activities. Guster does not accuse HCDE and/or Register of engaging in any illegal activity within the ambit of § 50-1-304. Rather, Guster strains to create a whistleblower cause of action based on the flawed theory that he refused to compromise his statutory duties as principal imposed under TENN. CODE ANN. § 49-2-303. Guster contends that the alleged illegal activity is Matthews' efforts to purportedly violate TENN. CODE ANN. § 49-2-303 by attempting to interfere with Guster's performance as principal at FMS. Guster argues that his rejection of Matthews' efforts to exercise control or authority over the principal's day-to-day management and operation of the FMS constitutes Guster's refusal to participate in or to remain silent about illegal activities. [Court File No. 26, p. 9].
A rational, objective jury could not find that Matthews' conduct constitutes illegal activity under § 50-1-304. At no time did Matthews violate or try to get Guster to violate any law including TENN. CODE ANN. § 49-2-303. Matthews, in her capacity as an elected member of the Hamilton County School Board, had a right to be present at FMS. Matthews had a right to meet and confer with Guster in his capacity as principal to discuss the school's management and operation. Matthews had a right to express her views and to convey the complaints she had received from her constituents (students and their parents) to Guster, HCDE, and Register. There is nothing remotely illegal about Matthews requesting Guster to reconsider his decisions as principal concerning the discipline and suspension of a few students. Guster's personality conflicts and disagreements with Matthews simply do not rise to the level of illegal activity or "whistleblowing" activity. Section 50-1-304 is not designed or intended to apply to this factual scenario.
With regard to the third element of the prima facie case, Guster was not terminated or discharged from employment as principal at FMS. Guster had a one-year contract of employment to be a school principal for the 2000-2001 school year. Guster served as principal at FMS for the entire term of the contract. He was not terminated or discharged as principal prior to the expiration of the principal's contract on June 30, 2001. When the principal's contract expired, Register exercised his right not to renew the contract for the next school year. There cannot be a retaliatory discharge after Guster's one year contract of employment expired. Register's decision not to renew the principal's contract with Guster after it expired is not the equivalent of discharging an at-will employee whose term of employment lacks a definite time limit.
With regard to the fourth element of the prima facie case, Guster cannot meet his burden under § 50-1-304 of proving an exclusive causal relationship between his alleged whistleblowing activity and Register's decision not to renew the principal's contract. A rational, objective jury could not find that the sole reason for Register's decision was Guster's alleged whistleblowing activity.
Accordingly, Guster's common law claim for retaliatory discharge and his whistleblower claim under TENN. CODE ANN. § 50-1-304 are DISMISSED WITH PREJUDICE as to all defendants.
IV. Conclusion
The motion by defendants Register and Matthews for summary judgment to dismiss the complaint against them individually [Court File No. 12] is GRANTED. All claims asserted by Guster against Register and Matthews individually are DISMISSED WITH PREJUDICE pursuant to FED. R. CIV. P. 56.
The only defendant remaining in the case is HCDE. The motion for summary judgment by HCDE [Court File No. 14] is GRANTED IN PART and DENIED IN PART as follows. The motion is GRANTED IN PART to the extent that all of Guster's claims against HCDE are DISMISSED WITH PREJUDICE, except for the claim brought under 42 U.S.C. § 1983 alleging the deprivation of Guster's right to free speech on matters of public concern as guaranteed by the First Amendment to the United States Constitution. To the extent that HCDE moves for summary judgment to dismiss Guster's First Amendment free speech retaliation claim, HCDE's motion is DENIED because there are genuine issues of material fact in dispute. Guster may proceed to trial on his First Amendment free speech retaliation claim against HCDE brought under 42 U.S.C. § 1983 which is the only claim that remains before the Court for adjudication.
SO ORDERED.