Mark W. Mayhew, Plaintiff-Appellant,
Town of Smyrna, Tennessee; Harry Gill, Defendants-Appellees.
Argued: January 25, 2017
from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:14-cv-01653-Aleta Arthur
Trauger, District Judge.
Douglas B. Janney III, Nashville, Tennessee, for Appellant.
M. Burns, HOWELL & FISHER, PLLC, Nashville, Tennessee,
Douglas B. Janney III, Nashville, Tennessee, for Appellant.
M. Burns, Brooke McLeod Coplon, HOWELL & FISHER, PLLC,
Nashville, Tennessee, for Appellees.
Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.
GRIFFIN, Circuit Judge.
Mayhew alleges the Town of Smyrna, Tennessee, and its city
manager, Harry Gill, terminated his employment in retaliation
for engaging in two distinct acts protected by the First
Amendment: reporting violations of federal and state
regulatory requirements at the town's
wastewater-treatment plant; and voicing concerns regarding
Smyrna's hiring practices. The district court disagreed
and entered summary judgment in defendants' favor. We
affirm in part, reverse in part, and remand for proceedings
consistent with this opinion.
was a long-time employee of Smyrna's wastewater-treatment
plant. The plant is subject to extensive regulation by the
Environmental Protection Agency ("EPA") and the
Tennessee Department of Environment and Conservation
("TDEC"), including various water-quality permit
and reporting requirements under the Clean Water Act's
National Pollutant Discharge Elimination System
("NPDES"). See generally 33 U.S.C. §
1342. TDEC administers the plant's NPDES permit, which
sets the parameters for the limits on certain agents or
chemical compounds that the plant is allowed to discharge
into public waterways. The regulatory regime requires the
plant to conduct various water and other treatment
by-products tests, provide these results to the EPA (by way
of an "annual sludge report") and TDEC (by way of a
"monthly operating report" ("MOR") and a
"monthly discharge monitoring report"
("DMR")), and report any discharges in violation of
its permit's parameters to TDEC.
was the plant's lab supervisor, overseeing the collection
and analysis of test samples as part of the plant's
reporting requirements. His duties included: (1) ensuring lab
activities met EPA and TDEC quality-control standards and
followed "proper procedures and documentation"; (2)
performing all work necessary to maintain the plant's
NPDES permit; (3) maintaining records in compliance with
applicable regulations; (4) reviewing daily records "to
ensure accuracy and completeness"; (5) completing MORs
and DMRs; and (6) reviewing and documenting "all OSHA,
Federal, State and City regulations, as they impact the
wastewater plant laboratory and report[ing] any appropriate
situations and accidents immediately to management."
also mandated that Mayhew obtain a TDEC "Grade IV"
wastewater-treatment certification. This certification
required Mayhew to "comply with the laws, rules, permit
requirements, or orders of any governmental agency or court
which govern the water supply system or the wastewater system
he/she operates." TDEC Rule 0400-49-01-.11(2). Under
TDEC's certification requirements, Mayhew could have his
certification revoked if he failed to "comply with the
monitoring, sampling, analysis, or reporting requirements for
a water supply system facility or wastewater system facility,
" failed to "notify" TDEC of conditions that
are "violative of a standard of water quality
promulgated by any government agency, " or prepared
"laboratory analysis results for the system that . . .
[c]ontain inaccurate data and are known or should be known .
. . to be false." TDEC Rule 0400-49-01-.11(2)(b-d),
supervisor, Mayhew learned that one of the plant's fellow
supervisors, chief operator Leland Noble, was engaging in
questionable conduct related to the plant's collection,
recording, and reporting of its water samples. This conduct
included: (1) pressuring Mayhew to either not report certain
results or change results to be submitted to the EPA and
TDEC; (2) refusing to allow Mayhew to sample on certain days
based on plant conditions to avoid bad results, thus
"cherry picking" data; (3) changing Mayhew's
collected test results; (4) expanding sample sizes to
"throw out any bad numbers, " but reporting as if
the sample size was smaller; and (5) logging incomplete tests
reported his concerns about Noble's actions to then-plant
manager Mike Roberts beginning in February 2014. He went to
Roberts first because he wanted to "work within the
chain of command." Roberts responded to these concerns
by looking into them himself. Noble's conduct
"increased in intensity and activity" to almost a
"daily basis" from February to June 2014.
Roberts's resignation in June 2014 after an investigation
by Smyrna officials on an unrelated matter, Mayhew began
reporting his concerns to Roberts's supervisors, the
assistant director of utilities Mike Parker, utilities
operation manager Aubrey Blanks, and director of utilities
Mike Strange. Strange and Parker relayed Mayhew's
complaints to Smyrna's city manager, defendant Harry
Gill. Strange and Parker also conducted follow-up
conversations with several employees at the plant who raised
various concerns about management (including about Noble)
during their initial investigation into Roberts's
misconduct. When Mayhew raised his concerns about Noble in
these conversations, Strange and Parker responded by telling
him that "they would take care of this matter."
According to Mayhew, Strange and Parker "ma[de] some
progress" in this regard.
then, Gill promoted Noble to plant manager, and promoted
Gill's nephew, Kyle Gill, to chief operator. He did so
without advertising the positions to the public, requiring
the two to apply, or permitting anyone else to apply,
interview, or be considered for the positions. And he did so,
according to Mayhew, despite them failing to possess certain
qualifications set forth in the respective job descriptions.
these promotions in the face of Mayhew's reports about
Noble's conduct, Mayhew "felt [he] had no other
alternative" but to "document this with [Smyrna
Human Resources Director] Jeff Craig" and with Gill. In
his words, it was "imperative to escalate my
documentation activities that management was alerted
to." Accordingly, he emailed Strange and Parker on July
1, 2014, complaining about Noble's and Kyle Gill's
lack of qualifications, their hiring outside of "normal
hiring protocol, " and commenting that he found "it
disturbing that the Town Manager would promote someone
[(Noble)] that [sic] is clearly responsible for the present
working conditions of having to work in an environment of
possible retaliation which include hostilities in the
workplace, the very same person that [sic] put pressure on
[him] to hide violations, of which [he] refused to do."
Mayhew characterized Noble's hiring as putting Mayhew
"in a precarious position, " based on his concern
that Noble would attempt to manipulate, retaliate against, or
forwarded Mayhew's email to Gill, who was "furious,
" and "offended that [Mayhew] was questioning [his]
ethics with respect to who[m he] hired." Gill found the
email to be "insubordinate" and
"disrespectful, " as it "implied that [Mayhew]
would be unwilling to work with [Noble], " and directed
Strange to suspend Mayhew.
Gill, Strange, Craig, and Smyrna's town attorney, Jeff
Peach, met on July 7, 2014. The parties significantly dispute
who said what at this meeting, but we view the facts in the
light most favorable to Mayhew. Gill "started right
off" by telling Mayhew how "upset he was"
about the email and that "[w]e will see if you still
have a job today." When asked whether Mayhew could work
with Noble, Mayhew stated "Yes, I would - I'm able
to work with him, and I will do my very best, sir." Gill
then accused Mayhew of being insubordinate and "bitter
against Leland Noble, " to which Mayhew responded:
"No, sir. I'm not bitter towards him. This has
nothing to do with personal issues. It has to do with what I
reported." Gill also told Mayhew that he could
"hire any way he sees fit." Gill terminated
Mayhew's employment at the end of the meeting. He did so
for two reasons: (1) "there wasn't really a full
declaration that he was willing to work with [Noble]. He
said, I would do my best"; and (2) "his work ethics
could be [compromised] if he had to work with [Noble]."
commenced this litigation shortly thereafter, alleging
defendants violated the First Amendment and Tennessee's
Public Protection Act by terminating his employment in
retaliation for his reporting activities. Following
discovery, the district court granted summary judgment in
favor of defendants as to plaintiff's First Amendment
retaliation claim and declined to exercise supplemental
jurisdiction over his state-law claim. Having refiled his