NOT RECOMMENDED FOR PUBLICATION File Name: 23a0518n.06
Case Nos. 23-5027/5075 FILED UNITED STATES COURT OF APPEALS Dec 13, 2023 FOR THE SIXTH CIRCUIT KELLY L. STEPHENS, Clerk
) DR. JENAI HAYES (23-5027); DR. LILY ) MORENO LEFFLER, DR. JAMES BAILEY, ) DR. PIPPA MERIWETHER, and DR. ) ON APPEAL FROM THE UNITED DAMON CATHEY (23-5075), ) STATES DISTRICT COURT FOR Plaintiffs-Appellants, ) THE MIDDLE DISTRICT OF ) TENNESSEE v. ) ) METROPOLITAN GOVERNMENT OF ) OPINION NASHVILLE AND DAVIDSON COUNTY, ) TENNESSEE; DR. ADRIENNE BATTLE, ) Defendants-Appellees. ) )
Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Five school administrators claim their school district retaliated
against them for complaining of wrongdoing, discriminated against them, and violated their tenure
rights. The district court dismissed some claims on summary judgment. We affirm in part and
reverse in part.
I.
In March 2020, Dr. Adrienne Battle became the Director of Schools for the Metropolitan
Government of Nashville and Davidson County (the District). Shortly thereafter, the District asked
Battle to cut $100 million from the budget. In response, she proposed reorganizing the District’s
central office.
The District approved the reorganization, but not everyone was happy. Five high- Nos. 23-5027/5075, Hayes v. Metro. Gov’t of Nashville & Davidson Cnty.
performing employees lost their positions and sued. They claim the District retaliated against them
for speaking up against wrongdoing. They also allege race, sex, and age discrimination claims.
Finally, they claim the District violated their tenure rights.
After discovery, the parties cross-moved for summary judgment. The district court denied
the employees’ motion and partially granted the District’s. One plaintiff appealed and, at the
other plaintiffs’ request, the district court entered final judgment on the dismissed claims. See Fed.
R. Civ. P. 54(b). Those employees then joined the appeal.
II.
Bailey’s First Amendment Retaliation Claim. James Bailey was a local high school
principal that the District removed during the reorganization. Why? The District claimed his
school underperformed.
But Bailey suspected otherwise. Two years earlier, a basketball coach at Bailey’s school
assaulted a parent and mishandled program funds. That coach was Battle’s brother. Bailey
investigated the incident, recommended discipline, and testified as a fact witness at the coach’s
appeal hearing. At Bailey’s recommendation, the District chose not to renew the coach’s
employment.
Then Battle became Director of Schools. And less than two months later, Bailey lost his
position. Bailey claims the District (through Battle) removed him because he testified against
Battle’s brother—and that this retaliation violated his First Amendment rights. The district court,
however, held that the First Amendment didn’t protect Bailey’s testimony. We disagree.
The First Amendment protects public employees’ right to speak as citizens. Pickering
v. Bd. of Educ., 391 U.S. 563, 568 (1968). At the same time, when government hires an employee
“to speak on the government’s behalf and convey its intended messages,” it can discipline the
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employee for failing to comply. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2423 (2022).
That’s because speech “pursuant to . . . official duties” is considered “the government’s own
speech.” Id.
Three factors guide our analysis of whether a government employee’s speech is private and
protected. First, the employee must speak as a private citizen, not “pursuant to” his official duties.
Garcetti v. Ceballos, 547 U.S. 410, 419, 421 (2006). Second, the speech must be on a matter of
public concern. Connick v. Myers, 461 U.S. 138, 146–47 (1983). Third, the government’s interests
can’t outweigh the employee’s speech rights. Pickering, 391 U.S. at 568.
Bailey’s testimony checks all three boxes.
First, Bailey didn’t testify as the District’s representative. To start, neither Bailey’s job
description nor his ordinary duties required him to testify at misconduct hearings. Cf. Mayhew
v. Town of Smyrna, 856 F.3d 456, 464 (6th Cir. 2017) (holding that reports of misconduct
are government speech when the reports are required by the employee’s job description); DeWyse
v. Federspiel, 831 F. App’x 759, 763 (6th Cir. 2020) (similar). To the contrary, the District had to
subpoena Bailey, and this was his second time testifying at a hearing in his last twelve years of
government service. See Lane v. Franks, 573 U.S. 228, 238 (2014).
True, Bailey testified about his work duties, including his investigation into the coach’s
misconduct and his recommendation to discipline the coach. But “the mere fact” Bailey shared
information learned during employment “does not transform that speech into [government]
speech.” Id. at 240. In short, because Bailey provided “truthful sworn testimony, compelled by
subpoena, outside the course of his ordinary job responsibilities,” his testimony was his speech,
not the District’s. Id. at 231.
Second, Bailey testified about Coach Battle’s assault and misuse of public funds—both
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matters of public concern. Id. at 241; Kirkland v. City of Maryville, 54 F.4th 901, 908 (6th Cir.
2022). After all, the public has an interest in how government employees treat citizens and how
public funds are used.
Third, the District’s interests don’t outweigh Bailey’s speech rights. The District can
punish Bailey for his private speech only if that speech impedes his ordinary duties or interferes
with the District’s operations. See Lane, 573 U.S. at 242; Pickering, 391 U.S. at 572–73. For
instance, if Bailey had disclosed confidential information, his testimony might have conflicted
with the District’s confidentiality interests. See Lane, 573 U.S. at 242. But here, the District hasn’t
argued that Bailey testified falsely or about sensitive information. Nor has the District explained
how Bailey’s testimony otherwise interferes with its operations.
Thus, the district court erred in holding that the First Amendment did not protect Bailey’s
testimony.
III.
Bailey’s Age Discrimination Claims. Bailey claims the District removed him for another
improper reason: his age. See 29 U.S.C. § 623(a)(1); Tenn. Code Ann. § 4-21-401(a). In response,
the District says it removed Bailey because his school ranked last on the District’s list of priority
(i.e., underperforming) schools.1 Because Bailey has introduced evidence casting doubt on that
justification, a reasonable jury could question the District’s stated reason. See Pierson
v. Quad/Graphics Printing Corp., 749 F.3d 530, 536 (6th Cir. 2014).
To begin, many schools were on the District’s priority list. Yet, in the last decade, Bailey
was the only principal on that list whom the District removed because of the school’s
1 The district court cited another reason why the District removed Bailey: Battle thought he was dishonest. The District switches gears on appeal and argues that Bailey’s honesty is irrelevant.
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performance.2
Additionally, the District didn’t follow its usual removal procedures. Typically, when a
principal isn’t meeting expectations, the District begins by adding him to its list of
underperforming principals. Being on the list triggers a handful of less drastic interventions short
of removal. If those don’t work, the District debates and decides whether to remove the principal
at an annual meeting. A senior director testified the District should have followed these procedures
in Bailey’s case. Yet the District didn’t follow any of them: Bailey wasn’t added to the list of
underperformers, the District didn’t take any intermediate measures, and Bailey wasn’t discussed
at the annual meeting.
Moreover, there is evidence Bailey performed well. Bailey’s supervisor said he was doing
a great job and to keep up the good work. Another administrator thought Bailey’s school improved
during Bailey’s tenure. Bailey was recently named principal of the year. And when Bailey lost
his job, his supervisor wrote a glowing recommendation based on his tenure at the
underperforming school.
Finally, the District gave shifting explanations for removing Bailey. Initially, the District
told Bailey it was removing him “just because after, you know, several years, . . . the school tends
to mirror a principal’s sort of qualities and strengths and weaknesses.” R. 162-9, Pg. ID 4292.
Later, the District sent Bailey a letter telling him he was being removed “due to the district’s
reorganization and budget impact.” R. 189-8, Pg. ID 5296. That letter, the District contends, was
sent to Bailey by mistake. But it remains undisputed that the District didn’t communicate its
current reason for removing Bailey—his school’s performance—until after Bailey challenged his
2 Bailey can use this evidence both in his affirmative case of age discrimination and to rebut the District’s stated reason for removing him. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 519 (1993) (noting evidence relevant to a prima facie case can also support pretext); Strickland v. City of Detroit, 995 F.3d 495, 512–14 (6th Cir. 2021) (same).
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removal before the Equal Employment Opportunity Commission. When an employer gives
shifting rationales for disciplining an employee, a jury can conclude that the proffered rationale
“may not have been the true motivation for the employer’s actions.” Pelcha v. MW Bancorp, Inc.,
988 F.3d 318, 327–28 (6th Cir. 2021) (citation omitted).
The District raises three responses. First, the District argues Bailey’s performance is
irrelevant because it removed him due to the school’s performance, not Bailey’s. Yet the District
initially told Bailey it was removing him because of his performance—because “the school tends
to mirror a principal’s sort of qualities and strengths and weaknesses.” R. 162-9, Pg. ID 4292.
Thus, evidence of Bailey’s good performance undermines at least one of the District’s stated
reasons for removing him.
Second, the District argues that Bailey didn’t claim he was treated worse than principals at
other priority schools before the district court. Not so. Bailey made that same comparison in his
summary judgment briefing. See R. 180, Pg. 47–48 (using the District’s “treatment of principals
at other priority schools” to prove “priority status did not actually motivate” his removal).
Third, the District argues it fired Bailey because his school was the worst performing in
the District. Maybe. But as Bailey points out, the District offered shifting explanations and didn’t
follow its typical procedures when removing him. Because that evidence calls the District’s stated
reason into doubt, a jury gets to decide whether the District removed Bailey because of his school’s
performance. See Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1166–67 (6th Cir. 1996).
Of course, Bailey must show “both” that the District’s stated reason for removing him was
pretextual “and that [age] discrimination was the real reason.” St. Mary’s, 509 U.S. at 519
(emphasis omitted). At this stage, however, the District hasn’t disputed whether Bailey can show
his age was the real reason he was removed. Thus, we reverse summary judgment on Bailey’s age
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discrimination claims.
IV.
Hayes’s First Amendment Retaliation Claim. Dr. Jenai Hayes served as the Director of
School Choice. Her nine-year-old son attended one of the District’s elementary schools. At school
one day, a student teacher asked Hayes’s son, who is African American, to read part of a speech
titled, “Let’s Make a Slave.” She then told the child to climb under his desk and “pretend he was
a slave” who was about to be “mailed” in a box. R. 185-1, Pg. ID 5163–65. After the lesson,
Hayes’s son didn’t want to return to school. Hayes filed a Title VI complaint with the District.
Later, a different teacher posted a video of Hayes’s son without Hayes’s permission. In
the video, her son, who is autistic, danced to a song about being different. Hayes complained,
asserting that the video violated federal privacy law.
Five days after Hayes submitted her privacy complaint, the District eliminated her position.
Hayes applied for other positions within the District, including to be a Restorative Practices
Specialist. Meanwhile, she sued, arguing the District violated Title VI by retaliating against her
because she complained about the slavery lesson. The day after Hayes filed her lawsuit, the
District denied her application for the Specialist position. Ultimately, the District transferred
Hayes to a classroom teaching position, which came with a nearly $50,000 cut in salary.
Hayes later learned her would-be supervisor, Anthony Hall, recommended hiring her for
the Specialist position. But when Hall’s recommendation went to HR so that HR could calculate
Hayes’s salary, an HR manager rolled her eyes and said “You have to be kidding me. She has a
lawsuit against the district.” R. 193-1, Pg. ID 6104. The HR manager also noted Hayes had
complained about the slavery lesson.
After HR calculated Hayes’s salary for the Specialist position, Hall concluded it exceeded
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what his budget allowed. So he hired a different candidate whose salary fit within his budget.
Hayes claims the District eliminated her position in retaliation for her slavery-lesson
complaint, privacy complaint, and Title VI lawsuit. She also claims the District rejected her
Specialist application in retaliation for those same complaints. The District says (A) Hayes
forfeited several arguments, and (B) the District would’ve taken the adverse actions regardless of
Hayes’s legal complaints.3
A.
The District first claims Hayes forfeited her argument that the slavery-lesson and privacy
complaints caused the District’s adverse actions. That’s because, the District asserts, Hayes only
addresses the causal relationship in a footnote. See United States v. Dairy Farmers of Am., Inc.,
426 F.3d 850, 856 (6th Cir. 2005). Yet Hayes spent a whole section of her brief discussing the
“causal connection” between the District’s adverse actions and “her protected conduct.” Appellant
Br. 53–54. In the body of that section, Hayes focused on her Title VI lawsuit. But she clarified in
a footnote that the same arguments applied to her slavery-lesson and privacy complaints. A party
might forfeit an issue by mentioning it only in a passing footnote, but Hayes discussed her
causation arguments in both the body and a footnote.
Next, the District argues Hayes can’t rely on the HR manager’s statements as evidence of
retaliation because Hayes didn’t raise those statements before the district court. Yet in her
summary judgment briefing, Hayes argued the HR manager’s “strong retaliatory language . . .
shows that the adverse action was motivated by [her] protected conduct.” R. 180, Pg. 51. That’s
3 In the summary section of its briefing, the District asserts that Hayes’s privacy complaint isn’t protected speech. But the District doesn’t explain why. By addressing the issue “in a perfunctory manner,” the District forfeited the argument. Wright v. City of Euclid, 962 F.3d 852, 879 (6th Cir. 2020) (citation omitted).
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enough to preserve the argument.
Finally, the District argues that Hayes raises a new retaliation claim on appeal. While
Hayes raised claims based on her slavery-lesson and privacy complaints before the district court,
the District argues she didn’t raise a First Amendment retaliation claim based on her Title VI
lawsuit. But retaliation claims are measured in retaliatory actions, not instances of protected
conduct. See Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019); Scarbrough v. Morgan Cnty. Bd. of
Educ., 470 F.3d 250, 255 (6th Cir. 2006). Thus, Hayes has two retaliation claims: one based on
her removal, and another based on the District’s denial of her job application. Her Title VI lawsuit,
slavery-lesson complaint, and privacy complaint are separate arguments in support of those claims.
And Hayes can raise new arguments in support of claims she litigated below. Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 379 (1995).
B.
Turning to causation, a reasonable jury could believe Hayes’s complaints caused the
District to eliminate her position, but not that her complaints caused the District to deny her job
application. Hayes must initially prove these adverse actions were motivated “at least in part” by
her complaints. Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 207 (6th Cir. 2010). Once she
meets this burden, the District must show it would have taken the actions “absent [Hayes’s]
protected conduct”—and that no reasonable jury could find otherwise. Id. at 208 (citation
omitted); Dye v. Off. of the Racing Comm’n, 702 F.3d 286, 308 (6th Cir. 2012). We consider each
adverse action in turn.
1.
A reasonable jury could conclude the District eliminated Hayes’s position because of her
complaints. The District eliminated Hayes’s position five days after she complained about the
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video of her son and two-and-a-half months after she complained about the slavery lesson. Such
a short timeline is evidence of causation. See Dye, 702 F.3d at 305–06 (collecting cases).
Moreover, during the reorganization, the District removed every administrator who Battle knew
had complained about District policies. Thus, a reasonable jury could conclude the District
removed Hayes “at least in part” because of her complaints. Eckerman, 636 F.3d at 207.
For its part, the District argues it would have eliminated Hayes’s position regardless
because it needed to cut $100 million from its budget. But we have held that a jury can doubt an
employer’s budget-based explanation for firing an employee when the firing occurs months after
the employee complained and when coworkers identify a retaliatory atmosphere at work. Dye,
702 F.3d at 308. Hayes has shown that and more. The alleged retaliation occurred months after
Hayes complained, and multiple employees testified the District had an atmosphere of retaliation.
Moreover, the District’s budget increased after the reorganization. Further, when the District cuts
its budget, it typically makes non-personnel cuts before dismissing employees. Battle did the
opposite. Finally, looking at this and other evidence, a school-budgeting expert evaluated the
reorganization and determined that it didn’t appear to be driven by budget concerns. Thus, a jury
could doubt that the District removed Hayes because of the budget.
2.
By contrast, Hayes has not shown that the District denied her application for the Specialist
position because of her complaints. To be sure, after Hayes applied and interviewed for the
position, Hall wanted to hire her. And when he sent his request to HR, a manager mentioned
Hayes’s complaints. But calculating Hayes’s salary was HR’s only relevant involvement in the
hiring process. Ultimately, Hall was the one who decided not to hire Hayes because her salary
exceeded his budget.
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Hayes hasn’t argued that Hall acted out of retaliatory animus. Nor has Hayes argued that
HR calculated the salary in a way that directed Hall to deny Hayes’s application. See, e.g., Bose
v. Bea, 947 F.3d 983, 990 (6th Cir. 2020). Accordingly, the HR manager’s stray comment can’t
establish that Hayes would have been hired but for her complaints. See, e.g., Rowan v. Lockheed
Martin Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004).
Thus, the District is entitled to summary judgment on Hayes’s First Amendment challenge
to the denial of her application for the Specialist position. But it is not entitled to summary
judgment on Hayes’s challenge to the District’s elimination of her position.
V.
Hayes’s Title VI Retaliation Claims. Hayes claims the District also violated Title VI when
it eliminated her position and denied her job application.4 In response, the District makes the same
arguments discussed above: it eliminated Hayes’s position for budget reasons, it would have
denied Hayes’s application anyway because her requested salary was too high, and the HR
manager’s statements are irrelevant because HR didn’t have hiring authority. The same analysis
from Part IV applies here. A reasonable jury could doubt the District’s budget concerns, but not
the District’s salary rationale. Thus, the District is entitled to summary judgment on Hayes’s
application-based claim. But it’s not entitled to summary judgment on Hayes’s claim based on the
elimination of her position.
4 Title VI doesn’t expressly prohibit retaliation. See 42 U.S.C. § 2000d. But see 34 C.F.R. § 100.7(e). So, it’s not clear that it creates a private right of action for retaliation claims. See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001); Peters v. Jenney, 327 F.3d 307, 324 (4th Cir. 2003) (Widener, J., dissenting). But see Jenney, 327 F.3d at 316–17 (majority op.) (holding it does); McCullough v. Bd. of Regents of the Univ. Sys. of Ga., 623 F. App’x 980, 982 (11th Cir. 2015) (per curiam) (same); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173–74, 178 (2005) (finding a similar right of action for retaliation under Title IX). But because the parties don’t dispute the point, we assume without deciding that it does.
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VI.
Tennessee Human Rights Act. In the summary section of her opening brief, Hayes
mentions a retaliation claim asserted under the Tennessee Human Rights Act. See Tenn. Code
Ann. § 4-21-301(a)(1). Hayes doesn’t discuss this claim elsewhere in her brief. Moreover, the
only THRA claim that Hayes raised before the district court was based on an allegation of sex
discrimination. And Hayes confirms she “does not appeal” her sex-based retaliation claim.
Appellant Br. 48 n.23. Accordingly, Hayes either forfeited or waived the right to appeal her THRA
retaliation claim. See Williamson v. Recovery Ltd., 731 F.3d 608, 621 (6th Cir. 2013).
VII.
Leffler’s Title VII Retaliation Claim. Dr. Lilly Leffler served as one of thirteen executive
directors. During the reorganization, the District required these directors to reapply for their
positions. All but two of those who reapplied were rehired. Leffler was not. She claims the
District removed her because her cousin-in-law sued the District for sex discrimination.
Title VII allows employees to sue for retaliation when the employer punishes them for
another employee’s protected conduct. Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174
(2011). To succeed on her Title VII claim, Leffler must initially show (1) her cousin-in-law is a
close contact, (2) the cousin engaged in conduct protected by Title VII, (3) the District took an
adverse action against Leffler, and (4) “a causal chain links” the adverse action to the cousin’s
protected conduct. See Threat v. City of Cleveland, 6 F.4th 672, 680–81 (6th Cir. 2021).5 Once
Leffler makes her initial showing, the District must offer a nonretaliatory reason for removing
Leffler. Boshaw v. Midland Brewing Co., 32 F.4th 598, 605 (6th Cir. 2022). Then, Leffler bears
5 The cousin-in-law qualifies as a “close” contact, and Leffler’s removal qualifies as “adverse,” if a reasonable employee in the cousin-in-law’s position would be “dissuaded from engaging in protected activity” if she knew Leffler would be removed as a result. Thompson, 562 U.S. at 174.
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the burden to show that the District’s proffered reason is a pretext for retaliation. Id.
Only causation and pretext are at issue here. Leffler’s initial causation burden is “not
onerous.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523 (6th Cir. 2008). She must proffer
evidence allowing a jury to conclude the District wouldn’t have removed Leffler absent her
cousin’s suit. See Thompson, 562 U.S. at 173, 178. She has. After Leffler’s cousin sued, Battle
repeatedly asked Leffler’s supervisor if Leffler could remain “loyal” and “separate her work” from
the cousin’s suit. R.188-3, Pg. ID 5267. Moreover, the District removed Leffler two-and-a-half
months after the cousin’s suit against the District settled. When an employer takes an adverse
action soon after the employee engages in protected activity, a jury can infer the protected activity
caused the adverse action. Mickey, 516 F.3d at 525. In connection with Battle’s repeated
questions, a two-month delay is enough for a jury to make that inference. Dye, 702 F.3d at 306
(collecting cases holding that three-month delays suffice to show causation).
Turning to pretext, the District claims it removed Leffler because it needed to cut $100
million from the budget. The District also notes that it removed all thirteen executive directors
from their positions, not just Leffler. But, as discussed above, plaintiffs have introduced evidence
that would allow a jury to doubt the District’s budget concerns. Supra Part IV(B)(1). Regardless,
Leffler doesn’t need to show that the entire reorganization was motivated by retaliatory animus—
just that a jury could doubt the District’s stated reason for removing her. See Threat, 6 F.4th at
680 (focusing on the “adverse action” taken “against the employee”). Because Leffler has done
so, the District isn’t entitled to summary judgment on Leffler’s Title VII retaliation claim.
VIII.
State Tenure Protections. The Tennessee Teacher Tenure Act allows the District to
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“dismiss[]” tenured employees only for certain reasons listed in the Act. Tenn. Code Ann. § 49-
5-511. Hayes, Leffler, Damon Cathey, and Pippa Meriwether claim the District dismissed them
for reasons other than those permitted by the Act.
Hayes, Cathey, and Meriwether were transferred, not dismissed. When the District told
these administrators it would remove them from their positions, it allowed them to apply for other
positions within the District. If they didn’t secure other roles within a few weeks, the District
promised to “transfer[]” them to teaching positions. E.g., R. 189-5, Pg. ID 5293.
Things proceeded as promised. Cathey and Meriwether accepted roles as district
principals, and the District transferred Hayes to a district teaching position. In other words, the
District removed these administrators from their positions and transferred them from “one type of
work to another.” Lawrence Cnty. Educ. Ass’n v. Lawrence Cnty. Bd. of Educ., 244 S.W.3d 302,
314 (Tenn. 2007). That’s a transfer, not a dismissal. Id.; Tenn. Code Ann. § 49-5-501(12). As
such, Hayes, Cathey, and Meriwether can’t challenge their transfers under the Tenure Act’s
dismissal provisions.
Leffler’s situation was different: when the District told Leffler it planned to eliminate her
position, it didn’t promise to transfer her to another role. But unlike the other administrators,
Leffler wasn’t tenured or under contract. So naturally, the Tenure Act’s protections don’t apply
to her. See Gibson v. Butler, 484 S.W.2d 356, 359 (Tenn. 1972) (holding that the Tenure Act
“affords protection to those who acquire tenure but none to those . . . who have not”); Cannon
Cnty. Bd. of Educ. v. Wade, No. M2006-02001-COA-R3-CV, 2008 WL 3069466, at *10 & n.14
(Tenn. Ct. App. July 31, 2008) (noting nontenured employees without a contract do not enjoy the
Tenure Act’s dismissal protections).
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Hayes, Meriwether, and Cathey also claim the District violated the Tenure Act’s transfer
protections. But school districts may transfer employees whenever “necessary to the efficient
operation of the school system.” Tenn. Code Ann. § 49-5-510. Under Tennessee law, courts must
presume that transfers are done in good faith. Geller v. Henry Cnty. Bd. of Educ., 602 S.W.3d 876,
888 (Tenn. 2020) (quotation omitted). Indeed, courts may review only whether the transfers
“could be” classified as improving the District’s operations. Id. (quotation omitted). This is an
exceedingly narrow scope of review.6 For good reason: the administrators have tenure only in
their status as educators, not in “any specific position.” Tenn. Code Ann. § 49-5-501(11)(C). And
Tennessee doesn’t want courts micromanaging its schools.
Here, the District transferred Hayes, Cathey, and Meriwether as part of an office-wide
reorganization spurred by the District’s proposed budget cut. Thus, the transfers “could be”
characterized as improving the District’s operations. See Geller, 602 S.W.3d at 888 (quotation
omitted).
To be sure, the administrators introduce evidence calling the District’s motives into doubt.
And if the administrators could show that the District’s sole motivation was retaliatory,
the administrators might succeed on their Tenure Act claims. Springer v. Williamson Cnty. Bd.
of Educ., 906 S.W.2d 924, 926–27 (Tenn. Ct. App. 1995); see also Galyon v. Collins, No.
03A01-9711-DH-513, 1998 WL 331300, at *7 (Tenn. Ct. App. June 24, 1998). But at most, the
administrators show that a jury could conclude retaliatory animus played a role in the transfers. It
remains undisputed that the District transferred the administrators as part of an office-wide
6 Indeed, as far as we can tell, in the forty-five years since Tennessee clarified its standard for challenging transfers, no Tennessee appellate court has found a transfer to be improperly motivated. See McKenna v. Sumner Cnty. Bd. of Educ., 574 S.W.2d 527, 529, 534 (Tenn. 1978) (clarifying the standard).
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reorganization and in response to a request to cut $100 million from the budget. Thus, while
there’s room for a jury to doubt the District’s budget concerns, there’s no question budget concerns
“could” have motivated the transfers. That’s enough to defeat the administrators’ claims. See
Geller, 602 S.W.2d at 888; Springer, 906 S.W.2d at 926–27.
C.
Hayes, Cathey, and Meriwether also claim their transfers violated school board policy. See
Tenn. Code Ann. § 49-5-510; Geller, 602 S.W.3d at 892–93. But they didn’t raise this claim
before the district court, so they can’t pursue it on appeal. See Bridgepoint Music, Inc. v. WB
Music Corp., 508 F.3d 394, 400 (6th Cir. 2007).
D.
Bailey claims the District violated the Tenure Act by dismissing him for an improper
reason: to retaliate against his testimony in Coach Battle’s appeal hearing. See Tenn. Code Ann.
§ 49-5-511. He also challenges his dismissal under the Tennessee Public Protection Act, which
prohibits the District from dismissing employees for speaking out against illegal activities. Id.
§ 50-1-304(b). The District responds to both claims by arguing it didn’t “dismiss” Bailey.
The District told Bailey his last day as a principal would be June 30. It gave Bailey until
June 15 to find another position on his own. If he didn’t, the District would transfer him to a
classroom teaching position.
Neither option panned out. Although Bailey applied to be the District’s Dean of Students
and received an offer, he rejected it because it paid half his prior salary. And though Bailey hadn’t
accepted another position by June 15, the District never transferred him to a new role. Nor did
Bailey think the District could fulfill its promise to transfer him into a classroom teaching position:
he wasn’t licensed to teach. As a result, on June 30, Bailey’s employment with the District lapsed.
- 16 - Nos. 23-5027/5075, Hayes v. Metro. Gov’t of Nashville & Davidson Cnty.
The District concedes that it removed Bailey from his principal position, that it didn’t
transfer Bailey to a new role, and that it no longer employs Bailey. Usually, that’s a “dismissal.”
See Tenn. Code Ann. § 49-5-501(11)(B)(i); see also Harman v. Univ. of Tenn., 353 S.W.3d 737,
738–39 (Tenn. 2011) (defining discharge).
But the District maintains it didn’t dismiss Bailey. Instead, the District says, Bailey
resigned. For support, the District points to the last sentence in a letter Bailey sent to the District
on June 15. In the letter, Bailey detailed his situation and claimed the District was retaliating
against him. Bailey concluded the letter by stating, “[a]s a result of [the District’s] actions, my
last day with the district will be June 30.” R. 149-4, Pg. ID 2645.
To succeed on this argument, the District must do more than show a reasonable employer
could conclude that Bailey resigned. See Thompson v. Memphis City Sch. Bd. of Educ.,
395 S.W.3d 616, 625–27 (Tenn. 2012). Instead, Bailey must have actually resigned. See id.
And whether Bailey resigned is a debated question of fact. Bailey called his letter a “formal
complaint of retaliation.” R. 149-4, Pg. ID 2644. Nowhere in the complaint does Bailey use the
word “resign,” and nowhere does he suggest he wanted to quit. Bailey wasn’t licensed to hold the
only position the District promised to transfer him into. Thus, in context, Bailey’s last sentence
could convey his belief that the District would terminate him on June 30—not that he’d resign on
that day.
In holding otherwise, the district court read Bailey’s letter as claiming the District left him
no choice but to resign. See Lemon v. Williamson Cnty. Schs., 618 S.W.3d 1, 7–8 (Tenn. 2021).
But there are two ways to read Bailey’s letter, and a jury could conclude the letter was a complaint,
not a resignation. Because we must construe the letter in Bailey’s favor, summary judgment is
improper. See Fed. R. Civ. P. 56.
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Finally, nothing turns on the fact that Bailey applied for the Dean of Students position,
received an offer, and declined to take the job. The Tenure Act doesn’t require employees to
apply for, or accept, other positions before challenging their dismissals. See Tenn. Code Ann.
§§ 49-5-511 to -513. Moreover, the District promised to transfer Bailey regardless of whether he
applied for a new role. Because the District failed to follow through on its promise, a jury could
conclude the District dismissed Bailey. Thus, the district court erred in granting summary
judgment on Bailey’s Tenure and Public Protection Act claims.
* * *
We reverse the district court’s grant of summary judgment on Bailey’s First Amendment,
age discrimination, Tennessee Teacher Tenure Act, and Tennessee Public Protection Act claims;
Hayes’s First Amendment and Title VI claims based on the elimination of her position; and
Leffler’s Title VII retaliation claim. We affirm summary judgment on the remaining claims. And
we remand to the district court for further proceedings consistent with this opinion.
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