J. DANIEL BREEN, District Judge.
Before the Court are two motions filed by Defendant, Chris Crider: for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and to dismiss Plaintiff's freedom-of-assembly claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket Entry ("D.E.") Nos. 20 and 60.) The Plaintiff, Lindsey Whitney, has responded to the motions (D.E. No. 24), and they are now appropriate for disposition. For the reasons set forth herein, the Court
Fed.R.Civ.P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Canderm Pharmacal, Ltd. v. Elder Pharms., Inc., 862 F.2d 597, 601 (6th Cir. 1988). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When the motion is supported by documentary proof, such as depositions and affidavits, the nonmoving party may not rest on the pleadings, but rather, must present some "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Abeita v. Trans-America Mailings, Inc., 159 F.3d 246, 250 (6th Cir.1998). It is insufficient for the nonmoving party "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In the Sixth Circuit, "this requires the nonmoving party to `put up or shut up' [on] the critical issues of [an] asserted cause[ ] of action." Lord v. Saratoga Capital, Inc., 920 F.Supp. 840, 847 (W.D.Tenn. 1995) (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989)). Finally, the "judge may not make credibility determinations or weigh the evidence." Adams v. Metiva, 31 F.3d 375, 379 (6th Cir.1994).
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The complaint need not necessarily be pleaded with "detailed factual allegations, [but] a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). Factual allegations of a complaint "must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)...." Id. at 555-56, 127 S.Ct. 1955 (citations and alterations omitted). The key inquiry is whether the facts in the complaint set out "a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955; see also Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir.2009).
In Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the United States Supreme Court explained that analysis under Rule 12(b)(6) requires a two-pronged approach. First, the reviewing court should determine which allegations in the complaint can be classified as "legal conclusions" and disregard them for purposes of deciding the motion. Iqbal, 129 S.Ct. at 1949. Second, the court should evaluate the remaining portions of the complaint—i.e. the well-pleaded facts—and ascertain whether they give rise to a "plausible suggestion" of a claim. Id. at 1950. The court "must accept as true all of the factual allegations contained in the complaint," and "a well-pleaded
Plaintiff, Lindsey Whitney ("Whitney"), is a resident of Gibson County, Tennessee. (D.E. No. 23, Amended Complaint, ¶ 3.) Defendant, City of Milan (the "City"), is an incorporated municipality located in Gibson County, and Defendant Chris Crider ("Crider") is the Mayor of the City of Milan and is a resident of Gibson County. (Id. at ¶¶ 4-5.) Whitney began working for the City in October of 2006, initially in the Milan Street Department. (Id. at ¶ 6.) In 2007, Plaintiff began training with Keri Williams ("Williams"), who at that time was the Milan City Recorder. (Id. at ¶ 7.) When a position opened up in the City Court Clerk's office, Plaintiff sought the job with Williams's recommendation. (Id. at ¶¶ 9-10.) However, Crider awarded the position to his aunt, Donna Jackson, which Plaintiff claims was a violation of the City's nepotism policy. (Id.) Subsequently, another clerk position became available, and Williams once again recommended Whitney for the job. (Id. at ¶ 11.) Crider eventually awarded Plaintiff this position after "several months" of equivocating as to whether he would experience problems from the fact that her husband was a police officer for the City of Milan. Plaintiff drew this conclusion because she presumed Crider would feel compelled to "walk on egg shells in his own office" for fear of having Plaintiff report details of inappropriate or unsavory activities to her husband. (Id. at ¶¶ 11-14.)
Whitney contends she performed her job well, receiving no evaluations or reprimands from her superiors. (Id. at ¶ 17.) In September of 2008, Crider terminated Keri Williams from her position as City Recorder, and as a result, she filed suit against the City and the Mayor.
Plaintiff also avers that during her employment at City Hall, Crider on several occasions made "unwelcome and offensive sexual comments" to her. (Id. at ¶ 32.) She reported these incidents to Police Chief Tim Wright, who advised her to "attempt to capture these comments on a recorder." (Id. at ¶ 34.) Shortly after one of Crider's assistants found the recorder in Whitney's desk, she was transferred away from City Hall to work for the City of Milan Fire Chief, James Fountain, which action Plaintiff considered to be a "demotion," even though she continued to receive the same salary. (Id. at ¶¶ 36-41.) Moreover, since the time of her transfer, Whitney contends that she has ceased receiving fuel reimbursements, and that Crider has banned her from City Hall. (Id. at ¶ 43.)
As a result of these actions, Plaintiff maintains the Mayor violated several of her constitutional rights, including: her
Section 1983 imposes civil liability on every person "who, under color of any statute, ordinance, regulation, custom, or usage, of any State" causes the "deprivation of any rights, privileges, or immunities secured by the Constitution or laws." 42 U.S.C. § 1983. To prevail on such a claim, a plaintiff must establish "(1) that there was the deprivation of a right secured by the Constitution and (2) that the deprivation was caused by a person acting under color of state law." Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.2003) (citation omitted). "Section 1983 is not the source of any substantive right, but merely provides a method for vindicating federal rights elsewhere conferred." Humes v. Gilless, 154 F.Supp.2d 1353, 1357 (W.D.Tenn.2001) (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "It is not enough for a complaint under § 1983 to contain mere conclusory allegations of unconstitutional conduct by persons acting under color of state law. Some factual basis for such claims must be set forth in the pleadings." Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986).
The United States Supreme Court has held "that `certain kinds of personal bonds,' ... and `certain [kinds of] intimate conduct,' ... are protected by the substantive component of the Due Process Clause." Flaskamp v. Dearborn Public Schools, 385 F.3d 935, 942 (6th Cir.2004) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) and Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)) (alterations in original). "[C]hoices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Roberts, 468 U.S. at 617-18, 104 S.Ct. 3244. A person's right to intimate association "is not limited to familial relationships but includes relationships characterized by `relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.'" Flaskamp, 385 F.3d at 942 (quoting Roberts, 468 U.S. at 620, 104 S.Ct. 3244).
In this case, it was Crider's mandate that Whitney cease all communication with Keri Williams that she alleges infringed on her right to intimate association. (D.E. Nos. 23, Amended Complaint, ¶ 61; 24, Response to MSJ, pp. 4-7.) Citing Akers v. McGinnis, 352 F.3d 1030, 1039-40 (6th Cir.2003) ("Personal friendship is protected as an intimate association"), Plaintiff avers that when the Mayor barred her from communicating with her friend and landlord, he violated her constitutional rights. However, even accepting as accurate Whitney's claims that Crider's conduct interfered with her right to intimate association, she nevertheless cannot prevail
"[N]ot all government action affecting the right to intimate association receives heightened scrutiny." Flaskamp, 385 F.3d at 942. Only "[g]overnment action that has a `direct and substantial influence' on intimate association receives heightened review." Beecham v. Henderson County, Tennessee, 422 F.3d 372, 376 (6th Cir.2005) (quoting Anderson v. City of LaVergne, 371 F.3d 879, 882 (6th Cir.2004)). The Sixth Circuit explained further:
Beecham, 422 F.3d at 376 (citing Anderson, 371 F.3d at 882) (alterations in original). "Lesser intrusions—those that are not direct and substantial—receive rational-basis review." Flaskamp, 385 F.3d at 942 (citation omitted). Thus, to trigger anything other than rational-basis scrutiny, the government action of which a plaintiff complains must have a "direct and substantial" effect on her right to intimate association, such that she effectively is foreclosed from engaging in all relationships of that type. See, e.g., Beecham, 422 F.3d at 378-79 (rational-basis review was appropriate in the case of a county employee who was terminated for her involvement in a romantic relationship with the spouse of another county employee, despite the absence of an actual marriage or an express anti-nepotism policy: "In this case, [Beecham's] termination did not bar her from every form of employment in every sector of society. She was discharged from one position at one courthouse"); Flaskamp, 385 F.3d at 943 (teacher who was denied tenure based upon relationship with former student did not suffer "direct and substantial" restraint on her right to form relationships: "[e]ven if we were to treat the board's action as amounting to a ban on relationships between teachers and their students for, say, one year after graduation, teachers would still be able to date a wide range of adults of a wide range of ages"); Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 712 (6th Cir.2001) (municipality's anti-nepotism policy "did not bar [the plaintiffs] from getting married, nor did it prevent them [from] marrying a large population even in Lawrence County").
In light of the reasoning from the Sixth Circuit's prior decisions, it is easy to see that any restriction Crider imposed on Whitney's right to intimate association was not "direct and substantial." At most, she has alleged that Crider prevented her from having a friendship with Keri Williams. However, because Williams is but one person, Crider's mandate leaves Plaintiff free to befriend any other person in Milan, Gibson County, or elsewhere. Thus, the Court will apply rational-basis scrutiny to her claim.
Rational-basis review is satisfied "so long as there is a plausible policy reason" for the government action. Fitzgerald v. Racing Ass'n of Central Iowa, 539 U.S. 103, 107, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003) (quoting Nordlinger v. Hahn, 505 U.S. 1, 11-12, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). "[I]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature." U.S. v. Lopez, 514 U.S. 549, 613, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations and quotation marks omitted).
First, because Williams was suing the City of Milan and Crider, Crider was concerned that the current City employees, if they had contact with Williams, would be "promoting" her behavior. (D.E. No. 20-1, MSJ, p. 9.) Employees such as Whitney who apparently had frequent interactions with Crider potentially could have been privy to confidential information about Crider's and the City's plans for defending against Williams's lawsuit. As a result, barring employees from communicating with her would be a reasonable means of obviating such a problem. Second, Crider was concerned that Williams's negative attitude towards the City and him would create an unpleasant working environment: "the City did not want its current employee [sic] involved in what it feared might be a disgruntled former employee's disruptive behavior." (D.E. No. 20-1, MSJ, p. 9.) Moreover, it is entirely plausible that Crider and the City feared that employees' continued fraternization with an unhappy, discharged employee could lead to divided loyalties or further legal trouble. The point is not whether any of these reasons was the actual motivation behind Crider's order that Whitney not contact Williams; instead, what is important is that there are several rational reasons that he could have chosen to do so. As a result, the Court concludes that Crider's actions satisfy a rational-basis review, and thus, Whitney can prove no set of facts to support her claim that he violated her right to intimate association.
Plaintiff also contends that the Mayor violated several of her constitutional rights based solely upon the fact that he allegedly "banned" her from Milan City Hall. (D.E. No. 23, Amended Complaint, ¶¶ 59-64.) Specifically, Whitney avers that Crider "ordered that Plaintiff may not ever come into City Hall again," which "constitute[d] deliberate indifference to Plaintiff's right of access and entry to City Hall, thus violating her liberty interests, right to local travel on public spaces, right to freedom of movement, and right to access guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution." (Id. at ¶¶ 43, 59.) Further, she maintains that "Mayor Crider's deprivation of Plaintiff's right to . . . attend events at City Hall deprived Plaintiff of her civil rights under color of law and entitle her to relief ..." because he has violated her right to freedom of assembly. (Id. at ¶ 60.) However, the record makes clear that Whitney was not injured by Crider's alleged ban—even if she could prove the existence of such a ban.
The entire basis for Plaintiff's claim that Crider barred her from City Hall derives from remarks that her boss, Milan Fire Chief, James Fountain, allegedly made to her after she started working for him. In her affidavit, Whitney contends that during her first weeks at the Fire Department, Fountain routinely sent her to City Hall on errands. (D.E. No. 24-1, Whitney Affidavit, ¶ 12.) However, she asserts that some time later,
In response to these contentions, Crider argues that far from being "banned," Whitney has been to City Hall on several occasions since he allegedly forbade her to enter the building. (D.E. No. 36, Crider's Reply, pp. 3-7.) Plaintiff does not dispute this, admitting that "[i]n the nine months since Mayor Crider's ban, Mrs. Whitney has been at City Hall on four occasions...." (D.E. No. 46, Whitney's Sur-Reply, p. 2.) However, she insists that this should not diminish the import of Crider's "ban," because she only went to City Hall on these four occasions out of "job necessity," and each time, she "fear[ed] that in doing [so], she would be terminated by Mayor Crider for violating his ban." (Id. at pp. 2-3.) Nevertheless, Whitney was not terminated, nor indeed is there any evidence she has suffered any adverse consequences as a result of her visits to City Hall. Thus, such a ban, even if the Court accepts its existence as true, has not injured the Plaintiff. She was not prevented from entering City Hall when she tried to do so, nor has she experienced any repercussions from her visits to the building. As a result, Crider is entitled to summary judgment on all of Whitney's claims that stem from her contention that he allegedly barred her from City Hall.
Furthermore, as Defendant correctly asserts, all of Whitney's knowledge about the ban comes from words and actions of people other than Mayor Crider himself. (D.E. No. 36, Crider's Reply, p. 6) (quotation marks and alterations omitted). The extent of Plaintiff's proof regarding the ban is a series of statements from Fountain, but she has presented no evidence that Crider ever personally communicated this ban to her, or that anyone other than Fountain mentioned it. Plaintiff seems to be arguing that Crider was attempting to keep this ban a secret, going so far as to decline to notify her of it or enforce it. Thus, the Court is doubtful that Plaintiff could even establish the existence of the ban, let alone that she was injured by it, as noted supra. In any event, because Whitney cannot prove any set of facts that would entitle her to relief under these claims, Crider is entitled to summary judgment on all of them.
Whitney also contends that Crider's actions constituted a deprivation of her right to freedom of speech under the First Amendment. (D.E. No. 23, Amended Complaint, ¶ 60.)
The exact nature of Whitney's claim under the First Amendment is unclear, because she does not explain the ways in which Crider has violated her freedom of speech. In her response to Crider's motion, she does not address his assertions regarding this claim.
The term "adverse action" traditionally has referred "to actions such as `discharge, demotions, refusal to fire, nonrenewal of contracts, and failure to promote.'" Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 724 (6th Cir.2010) (quoting Thaddeus-X, 175 F.3d at 396). "[I]t is an objective inquiry, capable of being tailored to the different circumstances in which retaliation claims arise, and capable of screening the most trivial of actions from constitutional cognizance." Thaddeus-X, 175 F.3d at 398. "Employment actions qualifying as materially adverse include `termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.'" Adair v. Charter County of Wayne, 452 F.3d 482, 490 (6th Cir.2006) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 887 (1996)). "Mere inconvenience or an alteration of job responsibilities" does not rise to the level of a materially adverse employment action. Adair, 452 F.3d at 490 (citations omitted).
In this case, none of the conduct of which Plaintiff complains constitutes a materially adverse employment action. She has not been terminated. She admits that her wages are the same as they were before her allegedly protected conduct.
However, she fails to specify any concrete ways in which her job responsibilities actually changed. To survive summary judgment, she must allege "significantly diminished material responsibilities." Adair, 452 F.3d at 490 (citation and quotation marks omitted) (emphasis added). There is no evidence in the record describing her job duties prior to her allegedly protected speech, or how they are different afterwards. Her conclusory allegations and nebulous assertions that she is no longer allowed to perform "many" of her job responsibilities are simply insufficient as a matter of law to survive summary judgment. Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir.2008) (citations omitted) ("Conclusory assertions, supported only by [Plaintiff's] own opinions, cannot withstand a motion for summary judgment"). At the summary judgment stage, the nonmoving party must present some "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. A mere denial of the moving party's assertions does not create a genuine issue of material fact. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.
Finally, Plaintiff cannot prove that she has suffered a materially adverse change in her benefits since her allegedly protected speech. She contends that she has, noting the fact that her "gas mileage benefit was terminated" when she was transferred to the fire department. (D.E. No. 24-1, Whitney Affidavit, ¶ 29.) However, she admits that she is now allowed to drive a city vehicle during working hours. (Id.) She nevertheless maintains that this constitutes a loss of benefits because "if that vehicle is in use or broken down," or "if [she] is required to sign warrants after working hours," she must drive her own vehicle "for which [she] is not compensated." (Id.) This argument is unavailing. Crider notes that Whitney is paid an extra $150.00 per month to compensate her for the duty of signing warrants—a claim Plaintiff does not dispute. (D.E. No. 36,
Thus, there is no evidence that Plaintiff has suffered a materially adverse employment action, even assuming that she engaged in protected conduct. Because she does not respond to Crider's arguments to the contrary, and because her First Amendment claim was ill-defined at best, the Court has determined that she can prove no set of facts that would entitle her to relief. As a result, Crider is entitled to summary judgment on this claim.
For the reasons articulated herein, Crider's motion for summary judgment as to Plaintiff's First Amendment retaliation and intimate association claims and her claims arising under the right to travel, right to freedom of movement, and right to access is