DeSoto v. Bd. of Parks & Recreation

64 F.Supp.3d 1070

Pamela Marie DeSOTO, Plaintiff

v.BOARD OF PARKS AND RECREATION, et al, Defendants.

Case No. 3:14–cv–0822.

United States District Court, M.D. Tennessee, Nashville Division.

Filed Nov. 25, 2014.

Benjamin M. Rose, Joshua Douglas Arters, Law Offices of Ben M. Rose, PLLC, Brentwood, TN, for Plaintiff.

Derrick C. Smith, Keli J. Oliver, Allison L. Bussell, Derrick C. Smith, Metropolitan Legal Department, Charles J. Mataya, John P. Rodgers, Bradley Arant Boult Cummings LLP, Kevin C. Klein, The Klein Law Office, PLLC, Nashville, TN, Rebecca Cothran Blair, The Blair Law Firm, Brentwood, TN, for Defendants.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

Pending before the court are several motions related to the plaintiff's Amended Complaint, including separate motions to dismiss under Rule 12(b)(6) filed by defendants Tommy Lynch (Docket No. 13), Metropolitan Government of Nashville & Davidson County (“Metro Nashville”) (Docket No. 16), the Board of Parks & Recreation (Docket No. 18), Kevin Hooper, Bryan Irvin, and Jerry Moore (Docket No. 20), Chris Taylor (Docket No. 24), and Danny Duke (Docket No. 30), as well as four Motions to Stay Discovery filed by particular defendants (Docket No. 38, 41, 42, and 44). For the reasons stated herein, certain claims will be dismissed with prejudice, certain claims will be dismissed without prejudice, the plaintiff will be granted leave to file an amended pleading, and discovery will be stayed pending further order of the court.

BACKGROUND

I. Overview and Amended Complaint Allegations

The plaintiff, Pamela Marie DeSoto, is an employee of the Parks & Recreation Department (“Parks & Recreation”), a branch of Metro Nashville. The Board of Parks and Recreation (the “Board”) supervises, controls, and operates Parks & Recreation. Until 2013, DeSoto worked as a sergeant with the Parks Police, which is a division of Parks & Recreation. In 2013, DeSoto was de-commissioned and was essentially demoted to a non-police position. DeSoto is female, Hispanic, 55 years old, and is in a same-sex relationship.

Although DeSoto inappropriately attempts to introduce various facts outside the record in her omnibus Response to the motions to dismiss, the court will focus on the well-pleaded allegations in her Amended Complaint. DeSoto alleges that she was hired by Parks Police in 1982 as one of the division's first females and as its first Hispanic officer. She rose to the rank of sergeant, becoming the division's highest ranking female officer, and had an impeccable work record during the course of her employment.

DeSoto generally alleges that, after being hired, she “has been forced to endure repeated acts of discrimination and a hostile work environment.” (Am. Compl. ¶ 12.) She alleges that, “[i]n the past, attempts have been made by her supervisors to prevent [her] from obtaining promotions and pay raises for which she was more qualified than her peers.” (Id. ) She does not provide any details concerning these general allegations, such as when they allegedly occurred, what positions they related to, and what type of “discrimination” (race, age, sex, or sexual orientation) they allegedly reflected. Whatever the nature and timing of these incidents may have been, she alleges that they led her to file a “charge of discrimination” with the Equal Employment Opportunity Commission (“EEOC”) in 2002. (Id. ) Aside from the fact that she filed an EEOC charge, DeSoto does not allege any specifics concerning the charge or how it was resolved.

DeSoto alleges that, after she filed the charge in 2002, things “improved slightly” but she “continued to be discriminated against in a variety of ways.” (Id. ¶ 13.) DeSoto provides only one purported example of this alleged discrimination: after she successfully lobbied to have a female restroom built at Parks Police headquarters, male officers began using the restroom as well, at which point DeSoto complained. Parks Police changed both the male and female bathrooms to “unisex” bathrooms at an unspecified time. DeSoto claims that this change of bathroom designation reflected a “retaliatory action[ ]” by Parks Police designed to show female officers that they were “not welcome at Parks Police.”¹ (Id. ¶ 13.) DeSoto also alleges that “Metro's agents regularly harassed and intimidated [her] in the past through the use of degrading items, such as condoms.” (¶ 24.) DeSoto does not provide any specifics, such as whether the conduct occurred before or after her 2002 EEOC charge, who allegedly engaged in it, whether she reported it to anyone, or whether anyone addressed it.

The gravamen of DeSoto's claims relates to her interest in a promotion in 2013. In early 2013, a lieutenant's position at the Parks Police became available. DeSoto communicated to her supervisor (Captain Chris Taylor) and unspecified other people that she intended to apply for the lieutenant's position. DeSoto had received an “outstanding” performance review in December 2012 and believed that she was qualified for the position. DeSoto also believed that her colleague, Sergeant Bryan Irvin, was a “rival” for the position who “was being groomed” for promotion by the Parks Police. (Id. ¶ 23.) She alleges that Sergeant Irvin is younger than she, although she does not specify whether Sergeant Irvin is over or under the age of 40.

Applications for the open lieutenant position were scheduled to be accepted in July 2013. However, in May 6, 2013 (i.e., approximately two months before applications would be accepted), Captain Taylor “de-commissioned” DeSoto without warning,² based on the results of (in the Amended Complaint's words) a “purported investigation” that “had apparently begun months earlier.”³ (Id. ¶ 15.) The de-commissioning effectively precluded DeSoto from being a viable candidate for the open lieutenant's position. Although DeSoto does not allege that anyone else participated in Captain Taylor's initial decision to de-commission her, she alleges that the de-commissioning was the result of ongoing discrimination by the “Parks Police” against her, based on her sexual orientation, gender, race, and age.

The Amended Complaint is somewhat vague concerning the chronology of events that followed. On the date on which Sergeant Taylor de-commissioned her (May 6, 2013), DeSoto was forced to surrender her firearm and other equipment.⁴ DeSoto alleges that Captain Taylor, who was armed, ordered DeSoto to enter the back of a “police car” in which Sergeant Irvin and her former subordinate officer, Officer Jerry Moore, were seated. Sergeant Irvin and Officer Moore were armed at the time, whereas Officer DeSoto was not.⁵ DeSoto alleges that Captain Taylor ordered her into the car “ostensibly to retrieve additional equipment.”⁶ (Id. ¶ 16.) In a later section of the Amended Complaint, she alleges that she repeatedly pleaded with Captain Taylor not to force her into the police car. (Id. ¶ 51.) The Amended Complaint is somewhat vague about what happened next. In ¶¶ 16 and 50, she alleges that she “was eventually allowed to leave the Parks Police premises with her sister and brother and brother-in-law, neither of whom was armed,” but she complains that “they were closely followed by Parks Police and ordered to travel directly to Sgt. DeSoto's residence.” In ¶ 51, she alleges that Captain Taylor, Sergeant Irvin, and Officer Jerry Moore “compelled [her] to enter the police car and travel to her personal residence.” The only plausible inference from these allegations is that DeSoto was initially ordered to enter the car, refused to do so, and ultimately was permitted to travel to her residence (or to leave the premises) separately.⁷

On June 25, 2013, Director of Parks and Recreation Tommy Lynch sent DeSoto a letter alleging that she had violated four of Metro's Civil Service Rules, including deficient or inefficient performance of duties, insubordination toward a supervisor, violation of the department's written rules, policies, or procedures, and dishonesty.⁸ According to DeSoto, Captain Taylor and Director Lynch both recommended that DeSoto be terminated for those purported violations.

Following her initial de-commissioning, DeSoto requested an internal Department Hearing to challenge the alleged violations. That hearing was held on June 18, 2013, and DeSoto's current counsel appeared on behalf of DeSoto. (See Docket No. 51, Ex. 4, Transcript of Departmental Hearing.) The hearing panel, which included Director Lynch, found that the dishonesty violation was “inconclusive” but that the other three violations were supported. (Am. Compl. ¶ 17; see also Docket No. 49, Ex. 3, Petition for Review, at Ex. A thereto (pp. 11–12), June 25, 2013 Letter from Director Lynch to Desoto).⁹ The panel recommended that DeSoto be suspended for 20 days (rather than terminated) and that she be demoted from the rank of sergeant to the rank of “officer,” with a commensurate reduction in salary.

Soon thereafter, DeSoto appealed the panel's decision to the Civil Service Commission (“CSC”), which apparently has been overseeing proceedings related to DeSoto's appeal since that time (hereinafter, the “CSC Appeal”). According to the Amended Complaint, Parks Police-related employees subsequently destroyed records of DeSoto's that were relevant to her appeal. First, at some point during the pendency of DeSoto's appeal to the CSC, Captain Taylor and Officer Kevin Hooper “cleaned out” DeSoto's office and “purged” it of her personal documents, which DeSoto alleges contained unspecified evidence of “discrimination” against her by the Parks Police. During a deposition in the CSC Appeal, Taylor testified that he removed the records unilaterally (without notice to DeSoto or her counsel) because DeSoto was “never coming back to Parks Police as a supervisor”—notwithstanding the pending appeal of her decommissioning. In another deposition in the CSC Appeal, Officer Hooper admitted that, without notice to DeSoto or her counsel, he had taken personal manuals and other...