Hicks v. Benton Cnty. Bd. of Educ.

• Decision Date: 01 December 2016
• Docket Number: No. 14–1345,14–1345
• Parties: Cassandra HICKS, Plaintiff, v. BENTON COUNTY BOARD OF EDUCATION, Defendant.
• Court: U.S. District Court — Western District of Tennessee

222 F.Supp.3d 613

Cassandra HICKS, Plaintiff,

v.BENTON COUNTY BOARD OF EDUCATION, Defendant.

No. 14–1345

United States District Court, W.D. Tennessee, Eastern Division.

Signed December 1, 2016

Charles H. Barnett, III, Sara Barnett, Lewis L. Cobb, Jr., Teresa A. Luna, Spragins Barnett & Cobb, PLC, Jackson, TN, for Plaintiff.

Charles M. Purcell, Christopher C. Hayden, Purcell, Sellers & Craig, Inc., Jackson, TN, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

J. DANIEL BREEN, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

The Plaintiff, Cassandra ("Casey") Hicks, filed her initial complaint against the Defendant, the Benton County, Tennessee, Board of Education ("BCBOE"), on December 22, 2014 (Docket Entry ("D.E.") 1), and an amended pleading on June 17, 2015 (D.E. 39). She alleged retaliation in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("§ 504"); Title II of the Americans with Disabilities Act, 42 U.S.C. § 12203 ("ADA"); the First Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983 ; and the Tennessee Public Protection Act, Tennessee Code Annotated § 50–1–304 ("TPPA"). Plaintiff also averred prior restraint of speech in violation of the First Amendment pursuant to § 1983. Before the Court is the Defendant's motion for summary judgment in accordance with Rule 56 of the Federal Rules of Civil Procedure as to all the claims raised in this case. (D.E. 64.)

II. STANDARD OF REVIEW

Rule 56 provides in pertinent part that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court must view all evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in her favor. Ondo v. City of Cleveland , 795 F.3d 597, 603 (6th Cir. 2015). "There is a genuine issue of material fact only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ) (internal quotation marks omitted). "The test is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. (citing Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505 ) (internal quotation marks omitted). The moving party must initially show the absence of a genuine issue of material fact. Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The nonmoving party must then "present significant probative evidence to do more than show that there is some metaphysical doubt as to the material facts to defeat the motion." Id. (internal quotation marks omitted).

III. MATERIAL FACTS

Hicks worked as a special education teacher's aide/paraprofessional at Big Sandy School ("Big Sandy") in Benton County from the 2004–05 term until the end of the 2013–14 academic year. According to BCBOE Policy 5.1037, teacher assistants are at-will employees, "with no expectation of continued employment, and their employment may be transferred, suspended, or dismissed by the Director [of Schools] in his/her sole and complete discretion at any time for any reason consistent with the efficient operation of the schools." (D.E. 93–4 at PageID 4330; see also D.E. 93–3 at PageID 4327 (BCBOE Policy 5.1025) (same).) These employees "may be involved in the instructional program only if they are under direct supervision of a certificated teacher. They shall assist the teacher in achieving the objectives of the instructional program and shall perform such tasks as may be assigned by the teacher." (D.E. 93–4 at PageID 4330 (internal footnote omitted).)

Plaintiff's daughter, H.H., who, according to Hicks, functioned at or below a third-grade level, attended Benton County schools and, for at least some of that time, received special education services. Individualized Education Plans ("IEPs") were prepared for her by the school in the academic years 2010–11, 2011–12, 2012–13, 2013–14 and 2014–15. One item required under the 2013–14 IEP was a study guide for a tenth-grade biology class taught by Dawn Peach. The Plaintiff and her husband, Darrel Hicks, were dissatisfied with Peach's study guide or, rather, the lack thereof, and complained to her and others, including Big Sandy Principal Marty Caruthers and BCBOE Director of Schools Mark Florence.

The principal had begun to have issues with Hicks beginning in the 2012–13 academic year. During that term, she had conversations with a South American transfer student who had a boyfriend of whom her parents disapproved. After the girl moved out of their home and into that of Michelle Douglas, another special education teacher's aide who permitted her to see the boy, Hicks maintains that she answered questions from the child's parents concerning their daughter's general well-being. The parents, upset over the situation, apparently requested that Douglas be fired. Although the aide was not dismissed, it was Caruthers' stated belief that Douglas thereafter suffered from a hostile working environment because of Plaintiff's statements. According to Hicks, another incident occurred that year involving a severely handicapped student who was being abused at home. She stated in her affidavit filed contemporaneously with her response to the motion for summary judgment that she reported the abuse to Caruthers, who had forbidden her to make direct reports to the Tennessee Department of Children's Services ("DCS"). He failed to pass the report on to the agency and the student later died.

Caruthers had problems with Hicks, as well as Douglas, into the 2013–14 term. On at least two occasions, he instructed them to cease talking to parents of special education students concerning what was going on in the program. It was his belief that the aides were informing parents that their children were not being served at the school. Hicks acknowledges that she spoke to special education parents about services their students failed to receive. Specifically, she told parents, in response to their questions, that she and Douglas were the only school employees supervising and making lesson plans for severely disabled students and that sensory items previously used as teaching aids had been removed from the premises, resulting in serious problems with the educational services being provided to these students during the 2013–14 year.

The principal advised Hicks and Douglas that, if a parent had a concern or question, they were to speak to the teacher first and then up the chain of command through him, Special Education Director Pam Chmelik and Florence. He cautioned that he would not tolerate turmoil, ongoing drama and conflict and, if such communication continued, would seek immediate termination of the offending parties. The principal prepared a memorandum in which he stated that Florence had contacted him and expressed concern about the situation. He added that the director of schools asked him to "reiterate to you that you are at will employees. In other words you are not a contracted employee." (D.E. 65–8 at PageID 2641.)

In an email dated December 14, 2013, Mr. Hicks sought assistance from Tennessee Education Complaint Investigator Kay Flowers concerning the study guide issue. (D.E. 65–4 at PageID 2216.) On March 6, 2014, the Plaintiff and her husband filed a formal administrative complaint with the Tennessee Department of Education Division of Special Education on behalf of their daughter against Big Sandy. The stated grounds for the complaint were as follows: "She is not being giv[e]n a study guide for Biology. Her IEP stat[e]s that she is to have a study guide for her classes, especially [Biology]." (Id. at PageID 2215.)

On or about May 1, 2014, the principal, in a letter addressed to Florence, recommended that Plaintiff not be rehired for the 2014–15 academic year. The correspondence contained no reason for the recommendation. The director of schools accepted the recommendation and, in a letter dated May 16, 2014, the BCBOE notified Hicks of its decision not to renew her employment.

IV. ASSERTIONS OF THE PARTIES AND LEGAL ANALYSIS

A. Federal Claims

As noted above, the Plaintiff has asserted claims in accordance with federal law for violation of the ADA, § 504 and, pursuant to § 1983, her rights under the First Amendment. The Court will address those claims seriatim.

1. Section 1983

(a) The Statute Generally

Section 1983 provides a private right of action against any person who subjects "any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights[ or] privileges ... secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983 ; Rehberg v. Paulk , 566 U.S. 356, 132 S.Ct. 1497, 1501, 182 L.Ed.2d 593 (2012). The statute "creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere." Flint v. Ky. Dep't of Corr. , 270 F.3d 340, 351 (6th Cir. 2001) (citing Okla. City v. Tuttle , 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) ). A plaintiff suing under the statute must demonstrate the denial of a constitutional right caused by a defendant acting under color of state law. Carl v. Muskegon Cty. , 763 F.3d 592, 595 (6th Cir. 2014).

(b) Municipal Liability

A political body or subdivision, including a county board of education, is a "person" within the meaning of § 1983 and, therefore, may be subject to liability in actions brought thereunder. See Ford v. Cty. of Grand Traverse , 535 F.3d 483, 495 (6th Cir. 2008) ; Doe v. Claiborne Cty., Tenn. by & through Claiborne Cty. Bd. of Educ. , 103 F.3d 495, 505 (6th Cir. 1996). A municipal defendant may only be liable under § 1983, however, "if a custom, policy, or practice attributable to the municipality was the...