Handy-Clay v. City of Memphis, 10-2927-STA-tmp

• Decision Date: 19 September 2013
• Docket Number: No. 10-2927-STA-tmp,10-2927-STA-tmp
• Parties: BRIDGETT HANDY-CLAY, Plaintiff, v. CITY OF MEMPHIS; MAYOR AC WHARTON, individually and in his official capacity; HERMAN MORRIS, individually and in his official capacity as CITY ATTORNEY; and CATHY PORTER, individually and in her official capacity as SENIOR LEGAL ADMINISTRATOR, Defendants.
• Court: U.S. District Court — Western District of Tennessee

BRIDGETT HANDY-CLAY, Plaintiff, v. CITY OF MEMPHIS; MAYOR AC WHARTON, individuallyand in his official capacity; HERMAN MORRIS, individuallyand in his official capacity as CITY ATTORNEY; and CATHY PORTER, individuallyand in her official capacity as SENIOR LEGAL ADMINISTRATOR, Defendants.

No. 10-2927-STA-tmp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

Date: September 19, 2013

ORDER GRANTING IN PART, DENYING IN PART DEFENDANT CITY OF

MEMPHIS'S MOTION FOR SUMMARY JUDGMENT;

ORDER GRANTING DEFENDANT CATHY PORTER'S MOTION FOR SUMMARY

JUDGMENT; and

ORDER DENYING DEFENDANT HERMAN MORRIS, JR.'S MOTION FOR

SUMMARY JUDGMENT

Before the Court are Defendant City of Memphis's Motion for Summary Judgment (D.E. # 129) and Defendants Herman Morris, Jr. and Cathy Porter's separate Motions for Summary Judgment on claims against them in their individual capacities (D.E. # 122, 125), all filed on June 15, 2013. Plaintiff Bridgett Handy-Clay has responded in opposition (D.E. # 136) to Defendants'Motions, and Defendants have filed reply briefs (D.E. # 150, 151).¹ On September 12, 2013, the Court conducted a pretrial conference in this matter and heard oral arguments on Defendant's Motions for Summary Judgment. Trial is set to commence on September 30, 2013. For the reasons set forth below, Defendant City of Memphis's Motion for Summary Judgment is GRANTED in part, DENIED in part; Defendant Cathy Porter's separate Motions for Summary Judgment is GRANTED, and Defendants Herman Morris, Jr.'s Motion for Summary Judgment is DENIED.

BACKGROUND

The Amended Complaint alleges that Plaintiff Bridgett Handy-Clay suffered retaliation for exercising her free speech rights in violation of the First Amendment. Plaintiff claims that Defendants City of Memphis, Herman Morris, Jr., and Cathy Porter are liable for the violation of her constitutional rights pursuant to 42 U.S.C. § 1983. Defendants now seek judgment as a matter of law on Plaintiff's claims.

Pursuant to Local Rule 56.1(a), Defendants have prepared a statement of facts "to assist the Court in ascertaining whether there are any material facts in dispute."² For purposes of summary judgment, a party asserting that a material fact is not genuinely in dispute must cite to particular parts of the materials in the record and show that the materials fail to establish a genuine dispute orthat the adverse party has failed to produce admissible evidence to support a fact.³ As the non-moving party, Plaintiff must respond to Defendants' statements of fact "by either (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed."⁴ Additionally, Plaintiff may "object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."⁵ Where Plaintiff asserts that a genuine dispute of material fact exists, Plaintiff must support her contention with a "specific citation to the record."⁶ If Plaintiff fails to demonstrate that a fact is disputed or simply fails to address Defendants' statement of fact properly, the Court will "consider the fact undisputed for purposes" of ruling on the Motion.⁷ Under Rule56 of the Federal Rules of Civil Procedure, the Court "need consider only the cited materials" but has discretion to "consider other materials in the record."⁸

I. Factual Background

The Court finds that there is no genuine dispute as to the following material facts, unlessotherwise noted.⁹ Plaintiff was appointed as the public records coordinator for the City of Memphis in the City's law division in 2007. (Indiv. Defs.' Statement of Undisputed Fact ¶ 1.) Mayor W. W. Herenton appointed Plaintiff as an at will-and-pleasure employee. (Id. ¶ 2.) Plaintiff's duties as public records coordinator consisted of gathering records in response to public records requests. (Id. ¶ 3.) At all times relevant, Plaintiff had to report her arrival time at work and her departure time to Cathy Porter ("Porter"), the senior legal administrator in the law division. (Id. ¶ 6.) Porter was the designated time-keeper and entered all time for employees in the City Attorney's Office. (Pl.'s Statement of Add'l Fact ¶ 1.)

A. Problems Prior to Herman Morris's Tenure as City Attorney

It is undisputed in this case that friction existed between Plaintiff and Porter over Plaintiff reporting her time to Porter. During the tenure of then-City Attorney Elbert Jefferson, Plaintiff complained to Jefferson about her problems with Porter over reporting time and her related concerns over other employees not reporting their time. (Handy-Clay Dep. 243:17-22.) For example, when Jefferson told Plaintiff about Porter reporting her for arriving to work late, Plaintiff responded,"Well, so does she and plenty more of the employees." (Id. at 243:23-244:2).¹⁰ On a separate occasion on or around August 5, 2009, Porter emailed Plaintiff, reminding her to report her time. (Indiv. Defs.' Statement of Undisputed Fact ¶ 7.) Plaintiff responded by email and asked if all city attorney office employees were required to sign in and out. (Id.) Porter forwarded Plaintiff's email to Gerald Thornton, the senior assistant city attorney who was assigned at that time to oversee Plaintiff's daily work as public records coordinator. (Id.) Porter explained to Thornton that Plaintiff was only reporting her time when Porter actually sent Plaintiff an email requesting that she do so. (Id.) Thornton responded to Porter's email, stating that he would handle the situation on his return and would not tolerate insubordination. (Id.)¹¹ Plaintiff also testified that on one occasion, Thornton spoke to her about her coming in late, to which she replied, "And so are you." (Handy -Clay Dep. 69:2-10.) Plaintiff also stated to Thornton, "How is it I am being singled out about coming to work late when you all are coming to work late?" (Id. at 69:22-70:3.)

The problems between Plaintiff and Porter continued into the tenure of Mayor Pro Tem Myron Lowry and then-Deputy City Attorney Veronica Coleman-Davis.¹² On September 3 and 4,2009, Plaintiff and Porter exchanged emails that were typical of efforts by Porter to remind Plaintiff of the correct procedure for reporting time. (Indiv. Defs.' Statement of Undisputed Fact ¶ 8.) Plaintiff and other non-lawyer personnel were required to report their time of arrival at work to Porter by email when the they arrived at the beginning of the work day and to report to Porter by email their time of departure from work at the end of the work day. (Id.) On September 4, 2009, Plaintiff responded to Porter's email and complained that not all employees were required to sign-in upon arrival and out upon departure via email on a daily basis. (Id.) According to Porter, this was a frequent response from Plaintiff to Porter's reminders. (Id.) Plaintiff responds to these contentions by asserting several additional facts. According to Plaintiff, there was no particular time designated for reporting time to Porter; on one occasion an employee went an entire week without reporting time and was not disciplined; Porter never disciplined anyone for tardiness; and employees sometimes would tell Porter that they had arrived at work and simply forgotten to send her their time report. (Pl.'s Resp. to Defs.' Statement ¶ 8.)

Sometime later in September 2009, Plaintiff met with Demar Roberts, the assistant to then-Chief Administrative Officer Jack Sammons under Mayor Pro Tem Lowry. (Handy-Clay Dep. 81:7-83:2.) Plaintiff reported "city attorney employees coming and going out of the office often," specifically during a two-week period when then City-Attorney Elbert Jefferson was absent from the office. (Id. at 83:21-24; 84:19-85:6.) Within a week of her meeting with Roberts, Plaintiff also spoke to Deputy City Attorney Coleman-Davis about the same issues. (Handy-Clay Dep. 86:1-4.) In October 2009, Plaintiff went to the payroll department and spoke with Julian Mabry about "retaliation" she believed she was suffering. (Handy-Clay Dep. 92:6-10.) Plaintiff explained thatshe approached Mabry "because I was constantly being asked about my time, this particular time, when did you come in, and certain things that I notice that other exempt employees as a fact was[sic] doing the same." (Id. 92:15-18.) Plaintiff inquired about how time was reported to payroll and how payroll could verify time. (Id. at 93:5-12.) According to Mabry's deposition testimony, Plaintiff actually came to speak with her less than a month before Plaintiff's termination. (Mabry Dep. 13:20-14:4, Apr. 30, 2013.)

B. Problems During Morris's Tenure as City Attorney

The Memphis City Council appointed Herman Morris, Jr. ("Morris") as City Attorney on October 20, 2009. (Morris Dep. 13:2-4, Apr. 24, 2013.) On October 22, 2009, Plaintiff addressed an email to Morris, which read as follows:

Good evening and congratulations on your appointment to the City Attorney's Office.

In view of [Morris's] e-mail below and your commitment to review, assess and react to issues relating to the City Attorney's office, let me be one of the first to express my concerns.

On September 4, 2009, I meet [sic] with [former City Attorney] Jefferson to discuss the uncomfortable working environment being imposed on some City Attorney's employees including myself. By the end of the meeting Mr. Jefferson agreed to implement and enforce policies to eliminate our concerns and hopefully produce unity amongst the office employees. Our concerns are as followed [sic]:

1. Favoritism- Some employees are allowed to come into the office and go as they please.

2. Equality- Some employees are required to report their arrival and departure time daily and others are not required to do so.

3. Trust - All employees were issued keys to the back door until a certain promotion was awarded.

4. Misuse of City Time- Some employees are allowed to run personal errands without

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