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Mayhew v. Town of Smyrna

United States Court of Appeals, Sixth Circuit

May 11, 2017

Mark W. Mayhew, Plaintiff-Appellant,
Town of Smyrna, Tennessee; Harry Gill, Defendants-Appellees.

          Argued: January 25, 2017

         Appeal 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.

          Robert M. Burns, HOWELL & FISHER, PLLC, Nashville, Tennessee, for Appellees.

         ON BRIEF:

          Douglas B. Janney III, Nashville, Tennessee, for Appellant.

          Robert M. Burns, Brooke McLeod Coplon, HOWELL & FISHER, PLLC, Nashville, Tennessee, for Appellees.

          Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.


          GRIFFIN, Circuit Judge.

         Mark 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.


         Plaintiff 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.

         Mayhew 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."

         Smyrna 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), (4)(c).

         As lab 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 as complete.

         Mayhew 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.

         Following 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.

         But 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.

         Following 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 fire him.

         Strange 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.

         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]."

         Mayhew 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 Public ...

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