NOT RECOMMENDED FOR PUBLICATION File Name: 21a0108n.06
Case No. 20-5954
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 01, 2021 CHERRY DAVIDSON, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN ARLINGTON COMMUNITY SCHOOLS ) DISTRICT OF TENNESSEE BOARD OF EDUCATION; ) SUPERINTENDENT TAMARA MASON, ) ) Defendants-Appellees. ) OPINION
BEFORE: COLE, Chief Judge; STRANCH and THAPAR, Circuit Judges.
COLE, Chief Judge. Cherry Davidson brought this action under 42 U.S.C. § 1983 against
Arlington Community Schools (“ACS”) Board of Education (the “Board”) and ACS
superintendent Tamara Mason, asserting she was unlawfully terminated for exercising her First
Amendment rights. She also pleaded, pertinent to this appeal, a state-law claim for breach of the
duty of good faith and fair dealing in connection with her termination. The district court granted
summary judgment in favor of defendants and issued a separate order denying Davidson’s motion
to amend her complaint. Davidson appeals both decisions. For the reasons below, we affirm. Case No. 20-5954, Davidson v. Arlington Cmty. Sch. Bd. Educ.
I. BACKGROUND
Plaintiff Davidson was principal of Donelson Elementary School (“Donelson”), one of the
four schools that form the Arlington Community Schools district, from the 2014–2015 school year
through the 2017–2018 school year. During that time period, Mason was the superintendent for
ACS and Davidson’s immediate superior.
Davidson’s performance as principal elicited mixed feelings from her colleagues. Some
teachers expressed satisfaction with Davidson’s leadership, noting that she was professional, fair,
and had high expectations. Donelson earned several awards under Davidson’s leadership,
including the National Blue Ribbon award, a national award given to certain high-performing
schools. Others told a different story. Teacher surveys, exit interviews, and parent complaints
revealed a culture of fear, mistreatment, and intimidation at Donelson. And, when compared with
other schools in the ACS district, teacher turnover at Donelson was markedly high.
At the end of the 2017–2018 school year, on May 24, 2018, Davidson was demoted. Mason
advised Davidson that her contract—which expired on June 30, 2018—would not be renewed and
that she would be reassigned to a teaching position. Mason noted she had based her decision on
teacher surveys, end-of-the-year interviews, exit interviews, complaints from parents, and the
number of teachers who had resigned during Davidson’s tenure.
Davidson claims she was reprimanded for statements she made regarding a proposed
change to Donelson’s school mascot, the Bulldogs. Specifically, in the Spring of 2018, Mason
assembled several committees to create a five-year strategic plan for ACS. One committee
chairman told Mason that his committee recommended that all four schools in the ACS district
have the same mascot, the Tigers. Because the change would impact Donelson, Mason asked him
to discuss the change with Davidson, who disagreed with him. Mason then spoke personally with
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Davidson about the proposed mascot change and suggested that she present her view to ACS Board
members. When Davidson indicated she would not contact the Board without Mason’s
permission, Mason invited Davidson to attend a Board work session.
At the work session, Davidson stated she had opened Donelson and polled parents and kids
to pick the “Buddy the Bulldog” mascot, that Buddy had “become the fabric of our culture” and a
source of “pride,” and concluded her presentation by saying, “that’s my plea. . . . I would prefer
and I feel like my staff would prefer that you just leave us as bulldogs.” (Mason Dep., R. 25-19,
PageID 800–05.) Mason then told the Board she could “live with it either way” and that “at this
point our strategic plan should just reach specific[s] to the middle school. And if the board at a
later date wants to look at it, but right now, I would say the focus should be on the middle school.
That would be my recommendation.” (Id. at PageID 806.) The Board agreed to keep Donelson’s
bulldog mascot. At her deposition, Davidson noted that she had not said anything critical of Mason
during the work session because “Mason was my boss. I was not going to be insubordinate.”
(Davidson Dep., R. 42-2, PageID 1503–04.) She also stated that Mason had not said anything to
suggest she was angry at her for her position on the mascot, but she believed Mason was visibly
upset.
As a result of these events, Davidson sued Mason and the Board in state court, alleging a
First Amendment retaliation claim under 42 U.S.C. § 1983 and state-law claims for negligence
and breach of the duty of good faith and fair dealing. Defendants removed the case to federal
court. After the close of discovery, defendants moved for summary judgment. Once summary
judgment briefing was completed, Davidson filed a motion for leave to amend the complaint in
order to add a new claim.
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The district court denied the motion to amend because Davidson filed it almost one year
after the deadline to file amended pleadings without adequate justification and because permitting
such a late amendment would prejudice defendants. The district court then granted summary
judgment for defendants. On Davidson’s First Amendment claim, the court determined that her
speech was not constitutionally protected because she spoke at the work session as a public
employee, not as a private citizen. The court also rejected Davidson’s contract-related, state-law
claims. This timely appeal of both orders followed.
II. ANALYSIS
A. Standard of review
We review de novo the district court’s grant of summary judgment. Mayhew v. Town of
Smyrna, 856 F.3d 456, 461 (6th Cir. 2017). “Summary judgment is proper when there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Id. (citing Fed. R. Civ. P. 56(a)). We must view all the evidence in light most favorable to the
nonmoving party, “drawing ‘all justifiable inferences’ in [her] favor.” Fisher v. Nissan N. Am.,
Inc., 951 F.3d 409, 416 (6th Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)). “The central question 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. (quoting Anderson, 477 U.S. at 251–52). “The mere existence of a scintilla of evidence
in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
The denial of a motion for leave to file an amended complaint is reviewed under an abuse-
of-discretion standard. Leary v. Daeschner, 349 F.3d 888, 904 (6th Cir. 2003). An abuse of
discretion occurs when the reviewing court has “a definite and firm conviction that the trial court
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committed a clear error of judgment.” Id. (quoting Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th
Cir. 1996)).
B. First Amendment retaliation claim
To prevail on her retaliation claim, Davidson must show “first, that she engaged in
constitutionally protected speech or conduct; second, that [defendants] took an adverse action
against her that would deter a person of ordinary firmness from continuing to engage in that speech;
and third, that a causal connection exists between the protected speech and the adverse
employment action.” Buddenberg v. Weisdack, 939 F.3d 732, 739 (6th Cir. 2019). A public
employee’s speech is entitled to constitutional protection when (1) “the speech addresse[s] a matter
of public concern,” (2) “the employee sp[eaks] as a private citizen [and not] as an employee
pursuant to her official duties,” and (3) “the employee’s speech interest outweighs ‘the interest of
the State, as an employer, in promoting the efficiency of the public services it performs through
its employees.’” Id. (quoting Mayhew, 856 F.3d at 462).
Here, defendants assumed for the purposes of their motion for summary judgment that
Davidson’s speech addressed a matter of public concern. The district court thus moved on to the
second inquiry concerning whether Davidson’s speech was protected, whether she spoke as a
private citizen or as an employee pursuant to her official duties. We agree with the district court’s
determination that Davidson spoke as a public employee when she presented her views on the
proposed change to Donelson’s mascot. As that holding is dispositive of her First Amendment
claim, we address that element alone.
In distinguishing between employee and citizen speech, the Supreme Court has said that
“when public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes[.]” Garcetti v. Ceballos, 547 U.S. 410, 421
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(2006). But the “mere fact that a citizen’s speech concerns information acquired by virtue of h[er]
public employment does not transform that speech into employee—rather than citizen—speech.”
Lane v. Franks, 573 U.S. 228, 240 (2014). “The critical question under Garcetti is whether the
speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely
concerns those duties.” Id. Relevant factors include “the speech’s impetus; its setting; its
audience; and its general subject matter,” as well as whether the employee’s speech was delivered
up the chain of command. Mayhew, 856 F.3d at 464–66.
The record demonstrates that Davidson’s speech was within her ordinary job
responsibilities. Mason invited Davidson to speak at the Board’s “work session” because
Donelson’s mascot was at issue. No plausible reason is offered for why Davidson’s opinion was
specifically solicited other than the fact that the Board might value her input as principal of
Donelson, one of the two schools that would be directly impacted by the mascot change.
Davidson’s statements themselves also suggest she was speaking in her capacity as principal; she
described polling parents and students to pick the mascot, explained that the mascot was a point
of school pride, and noted that “[her] staff” would prefer that the mascot remain unchanged.
(Mason Dep., R. 25-19, PageID 805.) The impetus and subject matter of Davidson’s speech
therefore favor the finding that she was speaking in her capacity as principal.
The context of Davidson’s speech similarly indicates she spoke within the scope of her
duties as principal. She presented her views about Donelson’s mascot at a work session before
Mason and the ACS Board, who were formulating a five-year strategic plan for the district, and
her audience then decided to approve Davidson’s recommendation to keep Donelson’s mascot the
same. Contrary to her assertion that she attended and spoke at the work session as a “private
citizen,” Davidson admitted she would not have communicated with the Board without the
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permission of Mason, her immediate superior. She also specifically avoided saying anything
“critical of Ms. Mason” because Mason was her “boss” and she did not want to be “insubordinate.”
(Davidson Dep., R. 42-2, PageID 1503–04.) We find that the content of and circumstances
surrounding Davidson’s statements at the work session weigh in favor of concluding that her
speech was made in her official capacity as principal.
Davidson’s arguments on appeal do not compel a different outcome. Davidson argues that
because she was “under no obligation, as an employee of ACS to go to the Board work session[],”
which was “held after school hours,” we should find that she spoke as a private citizen. (Appellant
Br. at 24.) But Davidson points to no evidence showing that her attendance at a work session
addressing an issue that directly impacts the culture of her school deviated from her job duties.
Even if not expressly within her job description, “we have repeatedly recognized . . . [that] ‘ad hoc
or de facto duties can fall within the scope of an employee’s official responsibilities[.]’” Mayhew,
856 F.3d at 465 (quoting Weisbarth v. Geauga Park Dist., 499 F.3d 538, 544 (6th Cir. 2007)); see
also Weisbarth, 499 F.3d at 544 (holding that though answering an outside consultant’s questions
did not appear in her job description, plaintiff’s comments were part of “an ‘ad-hoc’ duty” that
owed their existence to her professional responsibilities). And the mere fact that the work session
occurred outside of school hours does not outweigh the various other indicia that Davidson was
speaking in her capacity as principal. Indeed, Davidson’s contract notes she “agrees that [she] will
be required to perform additional duties outside of regular school hours.” (Mason Aff. Ex. 3, R.
25-3, PageID 283.)
Davidson also contends that any concerned citizen could have attended the work session
to express his or her views on the mascot issue. But Davidson points to nothing in the record
indicating that the work session was in fact a public event, and in any case Garcetti did not hold
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that speech in a public forum could never be made pursuant to one’s job duties. Finally, Davidson
invites us to apply the Pickering balancing test per Justice Souter’s dissent in Garcetti in lieu of
the majority’s binding approach; we reject the invitation. The district court’s grant of summary
judgment was appropriate.
C. Breach of contract
1. Legal framework
Davidson argues that the district court erred when it granted summary judgment in favor
of the ACS Board on her claim of breach of the implied duty of good faith and fair dealing. She
offers three reasons in support of this claim. First, she contends that her contract did not contain
the performance standards identified in T.C.A. § 49-2-303(a). Second, she claims that the Board
violated its own policy when it demoted her. Third, she argues that her demotion was unlawful
“because it would not be in the best interest of the students.” (Appellant Br. at 40.) As explained
below, the district court appropriately rejected each of these arguments.
As a preliminary matter, in Tennessee, “[b]reach of the implied covenant
of good faith and fair dealing is not an independent basis for relief.” Shah v. Racetrac Petroleum
Co., 338 F.3d 557, 572 (6th Cir. 2003). Rather, a cause of action purportedly for breach of the
covenant of good faith and fair dealing is properly construed as one of breach of contract. Wallace
v. Nat’l Bank of Commerce, 938 S.W.2d 684, 685 & n.1 (Tenn. 1996). Therefore, though she
invokes the duty of good faith and fair dealing, Davidson must still satisfy the elements of a breach-
of-contract claim, which include “(1) the existence of an enforceable contract, (2) nonperformance
amounting to a breach of the contract, and (3) damages caused by the breach of the contract.” ARC
LifeMed, Inc. v. AMC-Tenn., Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (quoting Custom Built
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Homes v. G.S. Hinsen Co., No. 01A01-9511-CV-00513, 1998 WL 960287, at *3 (Tenn. Ct. App.
Feb. 6, 1998)).
Tennessee courts thus permit the invocation of the duty of good faith and fair dealing only
in the context of explaining the breach or nonperformance of the contract. See Wallace, 938
S.W.2d at 686. The purpose of the duty is to “honor[] the contracting parties’ reasonable
expectations” and “protect[] the rights of the parties to receive the benefits” they bargained for.
Barnes & Robinson Co., Inc. v. OneSource Facility Servs., 195 S.W.3d 637, 642 (Tenn. Ct. App.
2006). The scope of the duty “depends upon the individual contract in each case.” Id. at 643. But
this implied duty does not “create new contractual rights or obligations, nor can it be used to
circumvent or alter the specific terms of the parties’ agreement.” Id.
2. Application
With these background principles in mind, we conclude that Davidson’s claim cannot
survive summary judgment. First, Davidson’s argument that the Board breached its contract with
Davidson by not including “performance standards as required by the plain language of T.C.A. §
49-2-303(a)” fails at the starting line. (Appellant Br. at 34.) “[I]n determining whether the parties
acted in good faith in the performance of a contract, the court must judge the performance against
the intent of the parties as determined by a reasonable and fair construction of the language of the
instrument.” Wallace, 938 S.W.2d at 686. Here, the substance of Davidson’s argument is not that
the Board failed to abide by a provision in her contract—she points to none—but rather that the
contract did not abide with what “the legislature mandated.” (Appellant Br. at 35.) Importing this
statutory mandate into the parties’ contract would in effect “create [a] new contractual right[]” for
Davidson—she cannot rely on the implied duty of good faith and fair dealing to do so. Barnes,
195 S.W.3d at 642. Moreover, Davidson presents no authority, nor can we find any, suggesting
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that Tennessee courts read into contracts an implied obligation that the contract contain any and
all provisions mandated by statute or specifically by § 49-2-303(a). Davidson therefore does not
identify nonperformance.
Next, Davidson’s argument that the Board breached its duty of good faith and fair dealing
by violating its own policy fails for similar reasons. Davidson claims the Board failed to transfer
her to a teaching position within five days of the last day of school as its policy required. But she
does not explain how the policy violation (if any) resulted in nonperformance of her contract or a
lack of good faith in executing one of its provision as intended. Davidson argues that the Board’s
policy violation “implicates” T.C.A. § 49-5-510, which automatically results in a breach of the
duty of good faith and fair dealing; she claims “it is axiomatic that a violation of the duty of good
faith and fair dealing can be properly analyzed if it is proven that a party violated the law in dealing
contractually with someone.” (Appellant Br. at 37.) But she cites no authority to support this
proposition. Permitting a plaintiff to tether any statutory violation to the duty of good faith and
fair dealing, regardless of the agreed-upon contractual terms, would stretch the doctrine in a
manner far beyond its current purpose under Tennessee law. And to the extent Davidson wanted
to bring a claim directly under § 49-5-510, she would have had to amend her complaint. See State
ex rel. Hyde v. Bills, No. 86-8-II, 1986 WL 6565, at *4–5 (Tenn. Ct. App. June 11, 1986) (citing
McKenna v. Sumner Cnty. Bd. of Educ., 574 S.W.2d 527, 534 (Tenn. 1978)).
Finally, Davidson’s argument that the Board breached its duty of good faith and fair dealing
because her positive performance at Donelson “precluded a decision to demote her” is unavailing.
(Appellant Br. at 40.) Mason cited high teacher turnover and various complaints as the reason for
transferring Davidson. And Davidson’s contract plainly states that she “understands and agrees
that the ACS Superintendent reserves the right to transfer [her] to a position other than an
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Administrator position as may be in the best interest of the Board.” (Mason Aff. Ex. 3, R. 25-3,
PageID 283.) Under these circumstances, we agree with the district court that no reasonable juror
would find that Mason executed that highly discretionary provision in bad faith. See Wallace, 938
S.W.2d at 687 (“Performance of a contract according to its terms cannot be characterized as bad
faith.”).
D. Motion to amend the complaint
Davidson finally contends that the district court abused its discretion when it denied her
motion for leave to amend the complaint so that she could add a claim under T.C.A. § 49-5-510.
We disagree. Davidson waited almost a year after the court-ordered deadline for filing amended
pleadings, and nearly four months after defendants moved for summary judgment, to file an
amended complaint. Once the deadline to file amended pleadings passed, Davidson had to “show
good cause under [Fed. R. Civ. P.] 16(b) for [her] failure earlier to seek leave to amend[,]” which
requires consideration of her diligence and the risk of prejudice to defendants. See Leary, 349
F.3d at 906-09. Davidson’s only justification for the delay in identifying a cause of action under
T.C.A. § 49-5-510 was that the omission was an “oversight.” The district court reasonably found
this justification insufficient. See Church Joint Venture, L.P. v. Blasingame, 947 F.3d 925, 934
(6th Cir. 2020) (“failure of [plaintiff] to realize it could have made claims” is not an adequate
reason for delaying seeking leave to amend); Leary, 349 F.3d at 908. And allowing “an
amendment after discovery is closed and summary judgment motions are fully briefed imposes
significant prejudice on defendants.” Church Joint Venture, 947 F.3d at 934 (quoting Siegner v.
Twp. of Salem, 654 F. App’x 223, 228 (6th Cir. 2016)). At this late stage in the proceedings, the
district court was well within its discretion to deny Davidson’s motion.
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III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court granting defendants’
motion for summary judgment and denying Davidson’s motion for leave to file an amended
complaint.
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