NOT FOR PUBLICATION
File Name: 06a0087n.06
Filed: February 1, 2006
NO. 05-5760
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TINA L. HOLLEY, formerly known
as Tina H. Griggs; JOY D.
HAYWARD; KAREN H. GOWAN;
MICHAEL R. CHAPMAN,
Plaintiffs-Appellants,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
GILES COUNTY, TENNESSEE; COURT FOR THE MIDDLE
GILES COUNTY SHERIFF’S DISTRICT OF TENNESSEE
DEPARTMENT; EDDIE BASS,
individually and in his capacity as
Sheriff of Giles County, Tennessee;
TOMMY PORTERFIELD,
individually and in his capacity as
Chief Deputy Sheriff of Giles
County, Tennessee,
Defendants-Appellees.
___________________________________/
BEFORE: SUHRHEINRICH, and GRIFFIN, Circuit Judges; and HOOD, Chief District
Judge.*
SUHRHEINRICH, J., Plaintiffs-Appellants Tina Holley, Joy Hayward, Karen Gowan, and
Michael Chapman (collectively, “the Employees”) brought suit against Defendants-Appellees Giles
County, Tennessee; Giles County Sheriff’s Department; Eddie Bass, individually and in his official
capacity as Sheriff of Giles County, Tennessee; and Tommy Porterfield, individually and in his
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
official capacity as Chief Deputy Sheriff of Giles County, Tennessee (collectively, “Giles County”).
The Employees’ claims included retaliation for exercising their First Amendment rights, retaliation
for filing an Americans with Disabilities Act (“ADA”) claim with the Equal Employment
Opportunity Commission (“EEOC”), and fraudulent misrepresentation. They appeal the district
court’s grant of summary judgment for Giles County on all claims. For the reasons that follow, we
AFFIRM.
I. Facts and Procedural History
The following facts are undisputed. In March 1997, the Giles County Sheriff’s Department
(“the department”) moved into the newly constructed Giles County Law Enforcement Center (“the
jail”). The jail is divided into two areas: an administrative area and a secure area where inmates are
held. The Tennessee Highway Patrol also relocated one of its branches to the jail. Less than a year
later, Defendant Eddie Bass (“Sheriff Bass”) and others began to notice a moisture problem caused
by construction defects.
Unbeknownst to the department staff, in February 2001, Giles County filed suit in state court
against various construction companies and design firms for breach of contract and breach of
implied warranty of merchantability. On January 17, 2003, Sheriff Bass instructed his personal
secretary, Plaintiff Karen Gowan (“Gowan”), to type a letter to Sergeant Bart Butler of the
Tennessee Highway Patrol, in which Sheriff Bass addressed Sergeant Butler’s concerns about the
moisture problem. After typing the letter, Gowan contacted an attorney, Mr. Wilmer, and notified
her co-workers that there was a known moisture problem in the jail.
On February 7, 2003, Gowan and approximately fifteen to twenty other department
employees met with Mr. Wilmer at a restaurant some thirty miles from the jail. Mr. Wilmer
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suggested that the jail employees present their health concerns vis-a-vis the moisture problem to
Sheriff Bass in writing. Mr. Wilmer then drafted a letter (“the petition”) addressed to Sheriff Bass
and Defendant Chief Deputy Sheriff Tommy Porterfield (“Chief Deputy Porterfield”). Gowan later
typed and circulated the petition to jail employees. Fifty employees signed the petition. This
number represents virtually the entire personnel of the department. On February 11, five or six
employees–with Gowan and Plaintiff Tina Holley (“Holley”) being the only two who are also
plaintiffs in this case–physically delivered the petition to Sheriff Bass.
As presented to Sheriff Bass, the petition read as follows:
Dear Sheriff Bass & Chief Deputy Porterfield:
We, the following employees of the Giles County Sheriff’s Department respectfully
request that the county immediately take steps to provide the employees of the
Department a safe and healthy working environment. We believe that since our
building was occupied in 1997, there has been a heavy moisture problem that has
caused extensive health problems among departmental employees, inmates and
others.
We believe that is highly improper to require us to continue working in this facility,
which you and the county know to be hazardous to our health. Further, it is improper
to require us to remain in the building while the county slowly tries to address this
problem through the court system.
Thank you for your kind attention.
Sincerely,
cc: County Executive
County Commissioners
When confronted with the petition, Sheriff Bass “turned his back and didn’t say anything.”
On April 3, 2003, Gowan, Holley, and Plaintiff Michael Chapman (“Chapman”) filed ADA
claims with the EEOC. These claims alleged that the moisture problem had worsened the claimants’
pre-existing medical conditions and that fixing the problem was a reasonable accommodation of
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their alleged disabilities.
On April 24, 2003, the Employees, along with nineteen of their co-workers, filed a lawsuit
in federal court against Giles County and various construction companies, alleging violations of their
civil and constitutional rights, negligence, breach of warranty, and nuisance, among others. Also
that day, these same plaintiffs brought suit in state court against Giles County, Tennessee and the
Giles County Sheriff’s Department for tort liability. Essentially, these lawsuits (collectively, “the
personal injury suits”) alleged that the moisture problem that had created unsafe and unhealthy
working conditions.
The Employees filed the present lawsuit about a year later. The lawsuit alleges, inter alia,
that Giles County took certain adverse actions against the Employees in retaliation for exercising
their First Amendment rights through the petition and personal injury suits, in violation of 42 U.S.C.
§ 1983. Also, Holley alleges that Giles County retaliated against her for filing an ADA claim, and
Hayward alleges fraudulent misrepresentation under Tennessee state law.
The district court granted Giles County’s motion for summary judgment on all claims and
dismissed the Employees’ case with prejudice. The Employees timely appealed to this Court.
II. Issues and Standard of Review
The Employees raise three issues on appeal: (1) whether the district court erred in granting
summary judgment for Giles County on the Employees’ claims of First Amendment retaliation; (2)
whether the district court erred in granting summary judgment for Giles County on Holley’s claim
of ADA retaliation; and (3) whether the district court erred in granting summary judgment for Giles
County on Hayward’s claim of fraudulent misrepresentation.
This Court reviews a grant of summary judgment de novo. Lukowski v. CSX Transp., Inc.,
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416 F.3d 478, 482 (6th Cir. 2005). Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “An issue of fact is ‘genuine’ if a reasonable
person could return a verdict for the non-moving party.” Farhat v. Jopke, 370 F.3d 580, 587 (6th
Cir. 2004). This Court must view all facts and inferences drawn therefrom in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
III. First Amendment Retaliation
The framework for analyzing a First Amendment retaliation case is well-established. First,
the court must determine whether the speech involved a matter of public concern. See Connick v.
Myers, 461 U.S. 138, 143 (1983); Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003). If so, then
the court must engage in so-called Pickering balancing analysis, in which the court balances “the
interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and
the interests of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees.’” Rodgers, 344 F.3d 587 at 596 (quoting Pickering v. Bd. of Educ.,
391 U.S. 563, 568 (1968)). Finally, the court must determine whether the employee’s speech was
a “substantial” or “motivating factor” in the employer’s decision to take the adverse employment
action against the employee. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977); Perry v. McGinnis, 209 F.3d 597, 604 (6th Cir. 2000).
We need not reach the issue of whether the Employees’ conduct was a matter of public
concern or the issue of whether the Employees have satisfied the Pickering balancing test. Because
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we find that the speech was not a motivating factor for any of the alleged adverse actions, the
Employees’ First Amendment retaliation claims must fail.
In the context of First Amendment retaliation, an adverse action is one likely to “‘chill a
person of ordinary firmness from continuing to engage in [protected] activity.’” Leary v. Daeschner,
228 F.3d 729, 737 (6th Cir. 2000) (quoting Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)).
“[T]he nonmoving party may not rely on the mere fact that an adverse employment action followed
speech that the employer would have liked to prevent. Rather, the employee must link the speech
in question to the defendant’s decision to [take action against] her.” Bailey v. Floyd County Bd. of
Educ., 106 F.3d 135, 145 (6th Cir. 1997) (citation omitted).
The district court concluded that each plaintiff failed to create a genuine issue of material
fact that the speech was a motivating factor for the alleged adverse actions. As there are four
plaintiffs alleging distinct adverse actions, each plaintiff will be discussed in turn.
1. Holley
On May 19, 2003, Holley was terminated for “authoriz[ing] the nurse’s pay sheet . . . [and
for] authoriz[ing] more time than [the nurse] worked.” Holley admits that she was not authorized
to do either.
Termination is unquestionably an adverse action. See Cockrel v. Shelby County Sch. Dist.,
270 F.3d 1036, 1055 (6th Cir. 2001). Thus, the key issue with Holley is whether her termination
was motivated at least in part by her speech. See id. As the district court noted, Holley’s case is
close because of “the fairly short passage of time between presentation of the petition in February,
to Holley’s participation in the . . . lawsuits and ADA charges in April, to her termination in May.”
Holley relies entirely on the temporal proximity between her speech and her termination, and
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on her personal belief that her termination was in retaliation for the personal injury suits.1 However,
even a strong temporal connection, without more, is insufficient to withstand summary judgment.
See Farmer v. Cleveland Pub. Power, 295 F.3d 593, 602 (6th Cir. 2002); Bailey, 106 F.3d at 145.
Moreover, the circumstances surrounding Holley’s termination belie her claim that her
speech was a motivating factor for her termination. When Holley realized that she could not verify
when the nurse was at the jail, she called Cathy Hood, another department secretary, to discuss the
dates. Sheriff Bass knew this but did not terminate Hood, even though Hood, like Holley, signed
and delivered the petition, because Hood did not authorize the pay sheet. Holley, however, was
terminated, because she personally authorized the nurse’s pay sheet. Further, the nurse was also
forced to resign and even apologized to Holley for causing Holley to lose her job. Therefore, we
agree with the district court that Holley has failed to create a genuine issue of material fact as to
whether her speech was a motivating factor for her termination.
2. Hayward
On March 12, 2004, Hayward resigned her position with the department. She argues that
this was a constructive termination such that it should be considered an adverse action. Even
assuming that Hayward is right, however, she has not produced evidence sufficient to survive
summary judgment on the issue of motivation.
First, Hayward’s resignation occurred eleven months after the personal injury suits were
1
Holley also cites her testimony that Sheriff Bass nodded his head “yes” in response to her
statement to him at the time of her termination that “you and I both know what this is about.”
However, nowhere in the record does Holley state what inference the factfinder is to draw from this
exchange. Moreover, proof of an employer’s discontent–or even “‘wrath’”–with his employee’s
constitutionally protected speech is insufficient to prove retaliation. Vukadinovich v. Bd. of Sch. Trs.
of N. Newton Sch. Corp., 278 F.3d 693, 700 (7th Cir. 2002) (quoting Love v. City of Chicago Bd.
of Educ., 241 F.3d 564, 569 (7th Cir. 2001)).
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filed. Such a long time lag between the speech and the adverse employment action is a strong
indication that the action was not retaliatory. See, e.g., Timm v. Wright State Univ., 375 F.3d 418,
423 (6th Cir. 2004) (finding no First Amendment retaliation where the employer terminated the
employee eight months after her protected conduct).
Second, the circumstances surrounding Hayward’s resignation were extraordinary. In
November 2003, an ex-inmate of the jail was killed in an automobile accident. At the time of the
accident, he was driving Hayward’s car while intoxicated. An investigation revealed that Hayward
had been romantically involved with the ex-inmate.
Weeks later, the department investigated allegations that Hayward granted male prisoners
unauthorized access to female prisoners. In January 2004, there was yet another investigation into
allegations that Hayward was smuggling contraband into the jail. During the course of this
investigation, Hayward admitted violating the department’s non-fraternization policy by passing
notes between prisoners and giving prisoners food. The lead investigator recommended her
termination. Sheriff Bass, however, decided to give her another chance. Thus, although Sheriff
Bass had sufficient justification for terminating Hayward after her speech, he gave her a pass
instead.
Approximately one month later, a former jail inmate, who was Hayward’s then-boyfriend,2
was arrested for driving under the influence of alcohol (“DUI”) and driving without a license. An
investigation revealed that the former inmate was driving Hayward’s car with her permission when
he was arrested. Also, Investigator Dickey found in Hayward’s car a receipt for a money order
Hayward had sent to a prisoner in a Tennessee state penitentiary.
2
Hayward admits the two were “in a relationship,” although it was not “exclusive.”
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Investigator Dickey contacted a local prosecutor about Hayward’s potential criminal liability
for DUI by allowance. The prosecutor advised Investigator Dickey that the case as described was
“weak” and that to be successful the prosecutor “would need evidence that the corrections officer
gave the individual the keys to her car knowing he was intoxicated.” The prosecutor also indicated
that, in any event, the proper venue for any criminal action would be in neighboring Lawrence
County.
Investigator Dickey then interviewed Hayward and, according to Hayward’s testimony,
advised her that Sheriff Bass and Chief Deputy Porterfield would likely “forget about” the incident
and not pursue criminal charges if she resigned. She tendered her resignation shortly thereafter.
Taken together, the long time lag, the facts immediately surrounding Hayward’s resignation,
and the lack of direct evidence of a retaliatory motive make clear that there is no genuine issue of
fact that the reasons for the alleged constructive termination were not related to Hayward’s speech.
3. Gowan
The alleged adverse actions against Gowan are two written reprimands she received in
January 2004 and various changes in her employment conditions,3 which Gowan claims demonstrate
disparate treatment in retaliation for her speech. These changes include a requirement that she take
an escort with her when fulfilling certain duties outside of the jail. The reprimands were the first
she had received during her tenure with the department.
Even assuming that these actions are sufficient to “chill a person of ordinary firmness from
continuing to engage in the activity,” Leary, 228 F.3d at 737 (quotation omitted), she fails to create
3
Gowan resigned only after filing the lawsuit at bar. Thus, any alleged constructive
termination cannot be considered an adverse employment action in this case.
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a genuine issue as to whether her speech motivated Giles County’s actions. Holley did not receive
the reprimands until January 2004–nearly nine months after the personal injury suits were filed.
Once again, such a substantial time lag, without more, is insufficient to survive summary judgment.
See Farmer, 295 F.3d at 602; Bailey, 106 F.3d at 145.
Moreover, the record makes no connection between her speech and the adverse actions. The
new “escort” requirement was announced to all departmental secretaries in a memorandum that
included changes in working conditions applicable to all. While Gowan received a written
reprimand regarding the use of department telephones for personal calls, the reprimand states that
“Sheriff Bass allows personal phone calls with a two-minute time restriction as noted in a memo by
Sheriff Bass.” In other words, the reprimand was intended to enforce an existing departmental
policy of general application. Thus, Gowan has provided no evidence (other than her own
conclusory statements) to support her allegation of disparate treatment. Nor has she presented any
other evidence of a direct link between the adverse actions and her speech. Therefore, Gowan has
failed to generate a genuine issue of material fact that Giles County acted in retaliation for her
speech.
4. Chapman
The only alleged adverse employment actions against Chapman are certain oral and written
reprimands he received around the time of the petition and personal injury suits. However, by
Chapman’s own admission, the only “discipline” he ever received occurred years before the speech
at issue. In other words, Chapman himself does not consider the reprimands to be discipline. Thus,
it does not appear that these acts can even rightly be considered adverse actions.
Even assuming that these are adverse employment actions, however, Chapman has not made
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a connection between these actions and his speech. Again, temporal proximity alone is insufficient
to survive summary judgment, see Farmer, 295 F.3d at 602; Bailey, 106 F.3d at 145, and nothing
in the record strengthens his case. During his deposition, Chapman was asked how he knew that the
reprimands occurred on account of his speech. He responded, “With the benefit of having known
[Sheriff] Bass for 18 years, it’s my opinion. I think it’s stronger than speculation.” Chapman also
claims that he and Investigator Dickey (the only two investigators in the department) received
disparate treatment as evidenced by the written reprimands. However, to the extent that any rules
were unique to Chapman, all but one was made known to Chapman at least three years prior to the
events at issue. Moreover, Chapman received no fewer than eight written reprimands prior to his
speech, and most of those addressed conduct similar to that addressed in the reprimands following
his speech.
Armed with little more than self-serving conclusory allegations and a strong temporal
proximity, Chapman has failed to create a genuine issue of material fact as to the motivating factors
for any alleged adverse employment action.
5. Other Employees
There are no allegations that any of the other fifty employees who signed the petition or any
of the other nineteen employees who joined the personal injury suits was retaliated against. This
includes the employee who spoke for the group in presenting the petition to Sheriff Bass. Also, as
the district court noted, Lieutenant Chapman, who signed the petition but in a later letter distanced
himself from certain portions of it, was promoted to the department’s third-in-command and given
a raise, all after Sheriff Bass received the petition.
In light of this record, we conclude that the district court did not err in granting Giles County
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summary judgment on the Employees’ First Amendment retaliation claims.
IV. ADA Retaliation
Holley claims that the district court erred in granting Giles County summary judgment on
her ADA retaliation claim. The prima facie case for ADA retaliation requires proof that (1) the
employee engaged in protected activity, (2) the employer took an adverse employment action, and
(3) there was a causal connection between the protected activity and the adverse employment action.
Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997). If established, the burden shifts
to the employer to show a legitimate, non-discriminatory reason for the action. Id. The employee
then bears the burden of proving that the proffered reason was pretext for discrimination. Id.
On several occasions during her deposition testimony, Holley was asked if she believed she
was terminated on account of her ADA complaint. Not once did she respond in the affirmative;
instead, she repeatedly said that she was terminated “because of the lawsuits.” In any event, for the
reasons stated above, Holley cannot survive summary judgment. Giles County has presented a
legitimate, non-discriminatory reason for her termination (i.e., authorizing the nurse’s timesheet and
authorizing more time than the nurse worked), and Holley has not presented any evidence that this
was mere pretext. Therefore, we affirm the district court’s grant of summary judgment for Giles
County on this claim.
V. Fraudulent Misrepresentation
Finally, Hayward claims that the district court erred in granting Giles County summary
judgment on her fraudulent misrepresentation claim. She argues that Giles County, through
Investigator Dickey, misrepresented its ability to pursue a criminal action against her for DUI by
allowance.
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In Tennessee, a prima facie case of fraudulent misrepresentation requires proof that, inter
alia, the alleged misrepresentation goes to an existing or past fact or embodies a promise of future
action without the present intent to carry out the promise. Brown v. Birman Managed Care, Inc.,
42 S.W.3d 62, 66 (Tenn. 2001); First Nat’l Bank of Louisville v. Brooks Farms, 821 S.W.2d 925,
927 (Tenn. 1991) (quotation omitted). As the district court found, Hayward’s own testimony proves
that Investigator Dickey neither made a promise as to whether Hayward would be prosecuted if she
did not resign nor misrepresented Giles County’s ability to seek criminal charges. Specifically,
Hayward testified that Investigator Dickey told her that she “could be charged with” (emphasis
added) DUI by allowance based on her then-boyfriend’s DUI. Hayward has made no attempt to
refute the plain meaning of her testimony. It is clear, then, that there is no genuine issue of material
fact on the issue of misrepresentation, as there is no evidence of an affirmative misrepresentation.
Therefore, we agree with the district court that Giles County is entitled to judgment as a matter of
law on this claim.
VI. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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Holley v. Giles Cnty TN
Court: Court of Appeals for the Sixth Circuit
Date filed: 2006-02-01
Citations: 165 F. App'x 447
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