Bennett v. Metro. Gov't of Nashville & Davidson Cnty., 3:17-cv-00630
| Decision Date | 11 April 2019 |
| Docket Number | No. 3:17-cv-00630,3:17-cv-00630 |
| Parties | Danyelle BENNETT, Plaintiff, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
Emily A. Castro, Crain Schuette Attorneys, Larry Lamont Crain, Brentwood, TN, Joshua D. Hershberger, Hershberger Law Office, Madison, IN, for Plaintiff.
Christopher M. Lackey, Paul Jeff Campbell, II, R. Alex Dickerson, Metropolitan Legal Department, Nashville, TN, for Defendant.
The instant case requires the Court to wrestle with, among other things, the fallout from the use of a variant of a word that is widely—although, remarkably, not universally—reviled, perhaps more than any other word in the English language. It is the "n-word"— a word that, for reasons so obvious the Court need not even mention them—seems to bring division, anger and offense wherever it rears its head. And so it is in this case.
Plaintiff Danyelle Bennett filed this action against her now-former employer, Metropolitan Government of Nashville and Davidson County, Tennessee, alleging violation of her rights under the First Amendment to the United States Constitution, article I section 19 of the Tennessee Constitution, and the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. Pending before the Court is Plaintiff's Motion for Partial Summary Judgment (Doc. No. 37), supported by an accompanying brief (Doc. No. 38) to which Defendant filed a response (Doc. No. 51), to which Plaintiff in turn replied (Doc. No. 61). Also before the Court is Defendant's Motion for Summary Judgment (Doc. No. 33), supported by an accompanying brief (Doc. No. 34), to which Plaintiff filed a response (Doc. No. 54), to which Defendant replied (Doc. No. 62). For the below-stated reasons, Plaintiff's motion will be denied, and Defendant's motion will be granted in part and denied in part.
Plaintiff worked for fifteen years as a dispatcher at the Department of Emergency Communications Center ("the Department") of the Metropolitan Government of Nashville and Davidson County, Tennessee. (Doc. No. 52 at ¶¶ 1-2). The Department requires its employees to wear uniforms. However, each year the Department holds "Super Hero/Villain Day," in which employees may choose to forgo their usual uniforms and instead wear apparel of their choice that depicts a hero or villain (Id. at ¶¶ 5-6). On April 13, 2016, the Department held its annual "Super Hero/Villain Day." (Id. at ¶ 7). Plaintiff wore a red sweatshirt bearing the name of then-Republican presidential candidate Donald Trump over the slogan "Make American Great Again!" (Id. at ¶ 8). The following is a depiction of the sweatshirt:
(Id. ). Shortly after the morning roll call, Plaintiff's supervisor, Judy Langston, asked Plaintiff to come to Ms. Langston's office. (Id. at ¶ 10). Ms. Langston informed Plaintiff that a co-worker had complained about Plaintiff's sweatshirt. (Id. ) Ms. Langston asked Plaintiff to remove the sweatshirt and advised Plaintiff that the sweatshirt was in violation of the Department's dress code policy.2 (Id. ). About an hour later, Plaintiff's manager, Lisa Baker, and Assistant Director Angie Milliken informed Plaintiff she could resume wearing the sweatshirt if she desired. (Id. at ¶ 17). Plaintiff put the sweatshirt back on. (Id. ). That afternoon, Ms. Langston again asked Plaintiff to come to her office. (Id. at ¶ 12). When Plaintiff arrived, Ms. Langston was accompanied by Ms. Baker. (Id. at ¶ 18). Ms. Baker informed Plaintiff that a Service Employees International Union attorney called the Department to report that the union received complaints regarding Plaintiff's sweatshirt and that the attorney believed the sweatshirt was offensive. (Id. ). Ms. Baker and Ms. Langston asked Plaintiff to remove the sweatshirt for a second time. (Id. ).
As Plaintiff left the Department premises that afternoon, she noticed a group of co-workers gathered outside the building. (Id. at ¶ 22). She believed that they were laughing at her in a mocking manner because she was asked to remove the sweatshirt. (Id. ). The next day, Plaintiff reported this behavior to Ms. Milliken, who informed Plaintiff that she would investigate the event and ensure any such behavior would not reoccur. (Id. ).
II. The Facebook Post
Nearly six months later, on November 9, 2016, the morning after the 2016 Presidential Election, Plaintiff posted an image of an electoral college map that revealed Donald Trump as the winner of the election. (Doc. No. 32-1 at 81 (Dep. Ex. 1) ). A Facebook user, identified as Mohamed Aboulmaouabhib, commented on Plaintiff's post of the electoral college map:
Mohamed Aboulmaouahib
Redneck states voter for Trump, niggaz and latinos states votre for hillary
(Id. at 82). Plaintiff responded:
Danyelle Elaine Bennett
Thank god we have more America loving rednecks. Red spread across all America. Even
niggaz and latinos voted for trump too!
(Id. ). Plaintiff's response prompted Shanette Summers, a co-worker of Plaintiff, to comment, (Id. at 83). Plaintiff defended her comment and replied that her post was in response to Mr. Aboulmaouabhib's "ignorant message" and she was "only racists against ignorance and rudeness." (Id. ). Later Derica Lowe, another co-worker commented, (Id. ) Plaintiff's public Facebook page identified her as an employee of the Department. (Doc. No. 55 at ¶ 2).3
Plaintiff's Facebook post triggered five co-workers to issue complaints to either their respective supervisors, their respective managers, or the human resources department about the content of Plaintiff's Facebook post. (Id. at ¶ 7). Holly Whitworth and NorKeisha Moore approached a supervisor, Lynette Dawkins, and complained of Plaintiff's post. (Id. at ¶ 8). Alisa Franklin, Sally Lyons, and Lakeda Logan also issued complaints regarding Plaintiff's post. (Id. ). Ms. Franklin stated that she did not want to work with someone "that has those derogatory type feelings." (Id. at ¶ 9). Ms. Franklin also felt "tension" in the workplace due to Plaintiff's Facebook post. (Id. ).
On November 9, 2016, the same day the post was made, Bruce Sanschargrin, the human resources and training manager for Defendant, called Plaintiff, who was off duty that day, to discuss the post. (Id. at ¶ 11). Plaintiff returned Mr. Sanschargrin's phone call at 4:55 p.m. (Id. ). Mr. Sanschargrin advised Plaintiff of a complaint made against her regarding her Facebook post and asked her to remove it. (Id. at ¶ 12). Plaintiff informed Mr. Sanschargrin that she had already done so and had "unfriended" most Department employees. (Id. at ¶ 13). Mr. Sanschargrin directed that they discuss the matter further in the morning with Director Donegan. (Id. at ¶ 15)
Additionally, Director Donegan received an email from the Office of Neighborhoods, a division of the Mayor's office, informing her of a complaint the office received concerning Plaintiff's Facebook post. (Id. at ¶ 9). The citizen complainant indicated that based on the content of Plaintiff's post, the complainant feared a person of color may not receive adequate assistance when calling 911. (Id. ).
On the morning of November 10, 2016, at a meeting to discuss her Facebook post, Director Donegan and Mr. Sanschargrin expressed their concerns about the impact Plaintiff's Facebook post could have on the office and community. (Id. at ¶ 15). Plaintiff indicated she did not feel the post was offensive and was merely mocking the person who posted before her. (Id. at ¶¶ 15, 18). Director Donegan informed Plaintiff that she was disappointed in her and decided to place Plaintiff on administrative leave with pay. (Id. at ¶¶ 19, 24).
Following the meeting with Plaintiff, Director Donegan addressed the Department employees at roll-call that morning. (Id. at ¶ 21). She advised the employees that she was aware of the Facebook post, reminded them to be mindful of what they put on Facebook, and ensured them that the post did not represent the views of the agency. (Id. ). Director Donegan also instructed the shift supervisors to discuss the post at their respective roll-calls and ensure employees that the post would be "handled appropriately." (Id. ). When discussing the post during roll-call, one employee, Ms. Franklin, walked out of the room. (Id. at ¶ 22). Ms. Franklin left the room because she believed it "sounded like excuses were being made for a derogatory comment on Facebook." (Id. ).
An investigation ensued, and when it was complete, Mr. Sanschargrin provided Plaintiff with an investigative summary. (Id. at ¶ 23). Mr. Sanschargrin then drafted and gave to Plaintiff a letter placing her on a three-day administrative leave beginning on November 10, 2016. (Id. at ¶ 24). Plaintiff did not return to work after her administrative leave was over because she took unrelated FMLA leave for a previously scheduled surgery. (Id. at ¶ 25). On December 26, 2016, the Department sent to Plaintiff a charge letter that charged her with violating Civil Service Rules Section 6.7 32 based on an alleged "failure of good behavior which reflects discredit upon himself, the Department and/or the Metropolitan Government" and Civil Service Rules Section 6.7 33 based on alleged "[c]onduct unbecoming of an employee of the Metropolitan Government." (Id. at ¶ 26). She was also charged with violating the Information Security Policy, which provides:
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