695 F.3d 531 (6th Cir. 2012), 11-5518, Handy-Clay v. City of Memphis, Tennessee

Docket Nº:11-5518.
Citation:695 F.3d 531
Opinion Judge:MARTHA CRAIG DAUGHTREY, Circuit Judge.
Party Name:Bridgett HANDY-CLAY, Plaintiff-Appellant, v. CITY OF MEMPHIS, TENNESSEE; Mayor A C Wharton, in his official capacity; Herman Morris, Jr., individually and in his official capacity as City Attorney; Cathy Porter, individually and in her official capacity as Senior Legal Administrator, Defendants-Appellees.
Attorney:Carol J. Chumney, Carol Chumney Law PLLC, Memphis, Tennessee, for Appellant. Elijah Noel, Jr., Harris, Shelton, Hanover Walsh, PLLC, Memphis, Tennessee, for Appellees. Carol J. Chumney, Carol Chumney Law PLLC, Memphis, Tennessee, for Appellant. Elijah Noel, Jr., Laura Martin, Harris, Shelton, Han...
Judge Panel:Before: DAUGHTREY and CLAY, Circuit Judges; CLELAND, District Judge.[*]
Case Date:September 25, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 531

695 F.3d 531 (6th Cir. 2012)

Bridgett HANDY-CLAY, Plaintiff-Appellant,

v.

CITY OF MEMPHIS, TENNESSEE; Mayor A C Wharton, in his official capacity; Herman Morris, Jr., individually and in his official capacity as City Attorney; Cathy Porter, individually and in her official capacity as Senior Legal Administrator, Defendants-Appellees.

No. 11-5518.

United States Court of Appeals, Sixth Circuit.

September 25, 2012

Argued: May 29, 2012.

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ARGUED:

Carol J. Chumney, Carol Chumney Law PLLC, Memphis, Tennessee, for Appellant.

Elijah Noel, Jr., Harris, Shelton, Hanover Walsh, PLLC, Memphis, Tennessee, for Appellees.

ON BRIEF:

Carol J. Chumney, Carol Chumney Law PLLC, Memphis, Tennessee, for Appellant.

Elijah Noel, Jr., Laura Martin, Harris, Shelton, Hanover Walsh, PLLC, Memphis, Tennessee, J. Michael Fletcher, Memphis, Tennessee, Donald A. Donati, William B. Ryan, Bryce W. Ashby, Donati Law Firm, LLP, Memphis, Tennessee, for Appellees.

Before: DAUGHTREY and CLAY, Circuit Judges; CLELAND, District Judge.[*]

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Plaintiff Bridgett Handy-Clay filed this civil rights action under 42 U.S.C. § 1983, charging that the defendants unlawfully terminated her from her position in the Memphis City Attorney's Office in retaliation for her allegations about corruption and mismanagement of public funds in that office. The district court dismissed Handy-Clay's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. She now appeals, contending that in dismissing her claims the district court failed to construe the allegations in the complaint in the light most favorable to her. We conclude that the district court erred in dismissing Handy-Clay's First Amendment retaliation claim. However, we agree that Handy-Clay did not allege sufficient facts to support her other § 1983 claim, alleging a denial of due process. As a result, we affirm the district court's judgment in part, reverse in part, and remand the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because we are reviewing the district court's order of dismissal under Rule 12(b)(6), we accept as true the facts set out in the complaint. Those facts allege that in July 2007, Bridgett Handy-Clay was appointed by Mayor W.W. Herenton as the public records coordinator for the City of Memphis. Pursuant to the City's Charter and the Code of Ordinances, the public records coordinator was classified as an exempt employee, working out of the City Attorney's Office. Handy-Clay's duties included, among others, ensuring that record requests from the public were " routed to the appropriate records custodian and responded to in a timely manner," reviewing the documents released to " prevent[ ]

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the disclosure of confidential information," and supporting the recording and transcription of the minutes of the Memphis Charter Commission.

The volume of public-record requests increased substantially after Handy-Clay accepted the position, and they continued to increase throughout her tenure, due at least in part to an ongoing FBI investigation into the awarding of city contracts. Initially, Handy-Clay met with City Attorney Elbert Jefferson to process the requests, but Jefferson's administrative assistant, defendant Cathy Porter, began to manipulate Handy-Clay's meetings with Jefferson, and ultimately Handy-Clay began submitting the requests directly to Porter, who would then bring them to Jefferson's attention. Eventually, Porter restructured the office organizational chart so that she had direct supervision over Handy-Clay.

As a result of the change in protocol, Handy-Clay alleged, she began receiving complaints regarding delay from the local daily newspaper and other would-be recipients. According to the complaint, Porter would frequently route requested records through another employee, preventing Handy-Clay from undertaking the review required by her position and, in some cases, altogether failing to produce requested records. In sum, Handy-Clay's efforts to comply with requests for public records were thwarted by " delays in response from various division directors, delays in response from the City Attorney, denial of access to meet with the City Attorney by Porter, and even delays in simple requests for office supplies and a place for the public to review the documents." She asserted that there was an entrenched culture at City Hall that led to the concealment of information from the public and disclosure of only the " bare minimum needed to comply with any given public records requests."

Handy-Clay was also concerned with the conduct of various other employees in the City Attorney's Office. For example, she alleged that there was a " general practice of some employees violating city policies by not reporting absences from the office" that amounted to " abuse of city leave and payment policies," as well as the improper use of city funds. Also, she was informed that she was not entitled to overtime pay, but she became aware that other employees received compensation for overtime work. Moreover, she alleged, there were " issues regarding nepotism and favoritism based upon personal relationships in the City Attorney's Office." As a result, Handy-Clay sought to develop " across the board policies and procedures to regulate office protocol and avoid disparate treatment."

Handy-Clay repeatedly approached Jefferson regarding both her concerns about widescale resistance from city officials in producing records and about corruption and malfeasance in the City Attorney's Office. She also raised her concerns to Senior Legal Attorney Gerald Thornton, acting Deputy City Attorney Veronica Coleman-Davis, city payroll employee Julian Mabry, and Chief Administrative Officer George Little, through his assistant, Demar Roberts. Handy-Clay alleged that as a result of her reports, she suffered " continuing interference, retaliation, and disparate treatment."

On October 10, 2009, the newly-elected mayor, defendant A. C. Wharton, issued an executive order establishing standards of performance designed to produce a more transparent and open city government. On October 21, defendant Herman Morris was sworn in as the new City Attorney. The next day, Handy-Clay sent Morris an e-mail raising her concerns about the misuse

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of time by employees in the City Attorney's office, citing " misrepresentation of job functions and positions, among other things." Handy-Clay met with Morris five days later to discuss these issues but, she alleged in her complaint, Morris never took any action in response. Over the next year, she nevertheless continued to contact Morris regarding her suspicions. At some point, Handy-Clay alleged, she " became aware of emails that gave her reasonable cause to believe" that Morris himself was abusing city leave and pay policies. She communicated her concerns to city councilman Myron Lowery and Antonio Adams with the " City's EEOC office."

On August 26, 2010, Handy-Clay submitted two requests for records under the Tennessee Open Records Act, asking for " documents regarding vacation, sick and bonus time, time sheets, docked pay, personnel files, and payroll check requests for City Attorney's office employees, including City Attorney Morris." She sent the request by e-mail to Jill Madajczyk, a senior assistant in the City Attorney's Office, and copied Morris, Little, Bobby White, the Mayor's chief of staff, and Tonya Meeks, the Mayor's public relations staff member, on the e-mail. Madajczyk and Morris acknowledged receipt of her message. That same day, Handy-Clay met with Meeks to discuss her records request and her complaints about the City Attorney's Office. The next day, August 27, Handy-Clay met with Human Resources employee Quinton Robinson and " reported the abuse of city leave policies," alleged that some employees were " ‘ stealing’ city time" by being paid for hours they did not work, and requested an investigation. She submitted a third records request the next day for payroll records of all City Attorney's Office employees and, again, sent copies of her requests to the same group of people.

Later that same day, August 27, 2010, Morris handed Handy-Clay a termination letter signed by Wharton. Three days later, on August 30, Little held a press conference and announced that Handy-Clay had been terminated for what Handy-Clay described in her complaint as " failure to adhere to unspecified polices and procedures" and an " alleged poor attendance and leave record." Little's comments appeared in various print and television media reports in the Memphis area.

Some four months later, on December 22, 2010, Handy-Clay filed the complaint in this case, asserting claims for violation of the Tennessee Public Protection Act, common-law retaliatory discharge and wrongful termination, tortious interference with at-will employment, breach of the duty of good faith and fair dealing, deprivation of constitutional rights in violation of 42 U.S.C. § 1983 under the First and Fourteenth Amendments, and violation of the Tennessee Governmental Tort Liability Act. The defendants responded with motions to dismiss.

The district court dismissed the § 1983 claims for failure to state a claim upon which relief could be granted and declined to exercise supplemental jurisdiction over the state-law claims, dismissing them without prejudice. With regard to the claim of retaliation in violation of the First Amendment, the district court found that the plaintiff had failed to plead with sufficient...

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