                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 18a0522n.06

                                          No. 18-5256

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                             Oct 19, 2018
 WILLIAM SMALLWOOD,                                     )
                                                                        DEBORAH S. HUNT, Clerk
                                                        )
           Plaintiff-Appellant,                         )
                                                        )
                                                               ON APPEAL FROM THE
                  v.                                    )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE EASTERN
 COCKE COUNTY GOVERNMENT,                               )
                                                               DISTRICT OF TENNESSEE
                                                        )
           Defendant-Appellee.                          )
                                                        )



BEFORE: CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.*

       PER CURIAM.

       This case arises from Plaintiff-Appellant William Smallwood’s termination in 2017 from

his job as Fire Chief of Cocke County, Tennessee. Smallwood brought several claims against

Defendant-Appellee Cocke County Government, including claims that his termination violated his

due process rights, First Amendment rights, and Tennessee statutory rights protecting him against

retaliatory dismissals. The district court granted summary judgment for the County on all of

Smallwood’s claims. Smallwood appeals.

       For the reasons below, this Court AFFIRMS the district court’s entry of summary

judgment.




       *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 18-5256, Smallwood v. Cocke County


                                         BACKGROUND

       Crystal Ottinger became Mayor of Cocke County, Tennessee, in September 2014. Though

many county employees had not supported her mayoral candidacy, Ottinger did not terminate any

employees upon taking office. Among these employees was William Smallwood, then Fire Chief

of the Cocke County Fire Department.

       A couple of years into Ottinger’s term, tension grew between two county agencies—the

Cocke County Emergency Management Agency (EMA) and the Cocke County Fire Department.

The two agencies shared office space, with the EMA office sitting directly above the fire hall

where the firetrucks were kept. In August 2016, EMA Director Kevin Benton first complained to

Ottinger that some firefighters, in particular Captain Clayton Ellison, had been harassing him at

work. Benton then reported more harassment in January 2017, saying that firefighters had

repeatedly operated a firetruck’s siren, blew the horn, and ran the engine for twenty minutes while

the truck remained inside the fire hall—sending exhaust fumes into the EMA office. Later that

month, Benton complained that Ellison had grabbed his crotch and made sexually suggestive

motions towards Benton, while Smallwood stood by and did nothing.

       On February 1, 2017, Benton filed a harassment charge with the Equal Employment

Opportunity Commission (EEOC) against Cocke County. Ottinger then met with Smallwood,

informing him of the EEOC complaint and ordering him not to retaliate against Benton for filing

the charge. Smallwood agreed.

       But a month later, Benton reported another incident of harassment. On that day, Benton

was in his upstairs office when he noticed Ellison had climbed the stairs to use a second-floor

bathroom, despite the availability of two bathrooms downstairs. Benton decided to take out the

trash to avoid interaction. As Benton was returning to his office, Ellison exited the fire hall. As


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No. 18-5256, Smallwood v. Cocke County


the two passed each other, Ellison said, “Get you some.” Benton turned around, asked Ellison

what he had said, and informed Ellison he was recording him. Ellison grew angry, and Smallwood

and another fireman went outside to defuse the situation. Eventually, just Benton and Smallwood

were left outside, and Smallwood referenced Benton’s EEOC complaint. He asked Benton,

“[W]hy did you go down [to the EEOC] and make us look like a bunch of assholes then?” In the

exchange that followed, Smallwood referred to Benton’s harassment complaints as “bullshit” and

told Benton, “[A]nd here you are, out here raising hell, and madder . . . than hell at everybody.”

Benton reported this conversation to Ottinger.

       Ottinger concluded that this conversation was retaliation against Benton for filing the

EEOC charge. She met with Smallwood on March 7, 2017, and recorded their conversation.

Ottinger gave Smallwood a choice among several remedial options. Smallwood refused to accept

any of the options, and Ottinger fired him on the spot. The following day, Ottinger issued a press

release announcing Smallwood’s termination. The press release recounted Ottinger’s February

discussion with Smallwood about the EEOC complaint and her warning to him not to retaliate, the

later instance of retaliation, Smallwood’s refusal to accept any of her remedial options, and her

decision to fire him.

       Following his termination, Smallwood requested that he either be reinstated as Fire Chief

or given a hearing before the Cocke County Civil Service Board (CSB). The CSB, created in 2016

by the county legislature, was intended to limit terminations for certain civil service positions—

including the Fire Chief—to for-cause dismissals, and to give those terminated a right to a hearing.

But the CSB’s validity was called into question at some point before Smallwood’s termination.

By the time Smallwood requested a hearing, the Cocke County Attorney had written an opinion

letter, concluding that the CSB was illegal under Tennessee state law.


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No. 18-5256, Smallwood v. Cocke County


       After Smallwood did not receive a CSB hearing, he sued the County, bringing four claims:

(1) a § 1983 claim under the Fourteenth Amendment that the County deprived him of a property

or liberty interest in his future employment as Fire Chief without due process of law; (2) a similar

due process claim under the Tennessee Constitution; (3) a § 1983 patronage dismissal claim under

the First Amendment; and (4) a state-law retaliatory discharge claim. The district court granted

summary judgment on all four claims. This appeal followed.

                                            DISCUSSION

       This Court reviews the grant of a motion for summary judgment de novo. Am. Cas. Co. of

Reading, Pennsylvania v. F.D.I.C., 39 F.3d 633, 636 (6th Cir. 1994). Summary judgment is proper

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Federal Civil Rule 56(a). “[T]he mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly supported motion

for summary judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).

       The district court wrote a persuasive memorandum opinion, describing the lack of genuine

dispute of material fact in each of Smallwood’s claims. On appeal, Smallwood does not address

much of the district court’s reasoning and leaves this Court with little reason to see the facts or the

law differently. As the district court has already articulated thoroughly the reasons why judgment

should be entered for the County, a full written opinion here would be largely duplicative. This

Court, instead, addresses key arguments Smallwood raises on appeal.

       Due Process Claims

       To establish a procedural due process violation under the Fourteenth Amendment of the

United States Constitution, a plaintiff must show “(1) that [he] was deprived of a protected liberty


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No. 18-5256, Smallwood v. Cocke County


or property interest, and (2) that such deprivation occurred without the requisite due process of

law.” Pittman v. Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d 716, 729 (6th Cir.

2011) (alteration in original) (citation omitted). Thus, for Smallwood to have a viable due process

claim, he must show that he had a protectable property or liberty interest.

       Property Interest

       A property interest in continued employment exists where a plaintiff has a “legitimate

claim of entitlement” to continued employment. Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972). The district court thoroughly explained why no property interest exists in this

case, and Smallwood’s appellate brief makes many of the same arguments that were made to the

district court. This Court adopts the district court reasoning as to those arguments.

       This Court, in particular, adopts the district court reasoning with regard to the legality of

the Cocke County CSB. Smallwood argues that the CSB limits the grounds under which the Cocke

County Fire Chief can be discharged, but the district court explained how the CSB was formed

contrary to law and why its rules have no legal effect. The only argument Smallwood offers on

this point is that “state lawmakers have deferred to the local government of Cocke County on the

issue.” That assertion is incorrect. As the district court found, Tennessee Code Annotated

§ 5-23-108 explicitly declares a lack of legal authorization for the County to create such a board.

That statute says that it shall not “be construed to affect the employment-at-will status of any

county employee,” and it explicitly withholds authorization “for establishing systems of seniority,

tenure, or classified service.” Tenn. Code Ann. § 5-23-108. Despite the district court’s reliance

on this statute in granting summary judgment, Smallwood fails even to mention this statute in his

appellate brief. The district court found that this law deprives the CSB of legal authority, and this

Court agrees.


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No. 18-5256, Smallwood v. Cocke County


       Smallwood does make one alternative argument, which the district court did not address.

He points to Tennessee Code Annotated § 5-17-103(c), which says, “The county fire chief shall

be appointed by the county mayor, subject to confirmation by the county legislative body or other

governing body.” He argues that, because a mayor’s decision to appoint a fire chief is subject to

confirmation by the county legislature, a mayor’s decision to terminate a fire chief should follow

the same procedure.

       In 1981, the Tennessee Attorney General addressed this very question: whether a county

executive could unilaterally dismiss a county department head whose appointment had been

subject to legislative confirmation. The Attorney General concluded that county executives have

the authority to dismiss department heads without the county legislature’s confirmation, as long as

“the tenure of these offices is not prescribed by statute or the constitution.” Tenn. Op. Att’y Gen.

No. 81-73 (Tenn. A.G. Feb. 2, 1981), 1981 WL 142735. To reach this conclusion, the Attorney

General analogized to the power of the President of the United States and cited the Supreme

Court’s landmark decision of Myers v. United States, 272 U.S. 52 (1926). There, the Court

declared, “The power of removal is incident to the power of appointment, not to the power of

advising and consenting to appointment.” Id. at 122. This long-recognized principle has been a

foundational part of the relationship between the executive and legislative branches on the federal

level, and the Tennessee Attorney General explained that the inter-branch relationship works

similarly in Tennessee. Smallwood cites no authority to the contrary. Accordingly, this Court

finds that Tennessee Code Annotated § 5-17-103(c) does not affect Ottinger’s ability to unilaterally

dismiss Smallwood. Thus, Smallwood had no property interest in his continued employment as

Fire Chief, and his due process claim under this theory fails.




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No. 18-5256, Smallwood v. Cocke County


        Liberty Interest

        Smallwood makes no new arguments on appeal that the district court did not address. The

district court discussed the five factors that a plaintiff must show in order to establish that he was

deprived of a liberty interest. One of these factors is that the public charges made against him

were false.

        Smallwood argues that the true reason for his termination was political retaliation, so the

press release was false. But even assuming the retaliatory reason as true, no liberty interest is

implicated here. Whether a liberty interest is implicated turns on whether the press release contains

false accusations. The press release describes a series of events involving workplace harassment,

an EEOC complaint, and the interactions and meetings that followed. Smallwood does not deny

the incident between Benton and Ellison, nor does he deny his later conversation with Benton.

The record contains transcripts documenting conversations between Ottinger and Smallwood

about the EEOC complaint as well as Smallwood’s interaction with Benton and his meeting with

Ottinger. These interactions formed the publicized basis, pretense or not, for his termination.

Smallwood points to no evidence—nor did he ever allege before the district court—that the press

release disseminated false information. Without this evidence, Smallwood cannot show a genuine

dispute of material fact that a liberty interest was implicated in his firing.

        Tennessee State Constitution Due Process Claims

        “Any prerequisites necessary to prove a due process violation under the United States

Constitution . . . [are] applicable to proving a violation of Article I, Section 8 of the Tennessee

Constitution.” Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13, 16 (Tenn. Ct. App. 1982).

Because Smallwood’s due process claims under the Fourteenth Amendment of the United States

Constitution fail, his claims under the Tennessee Constitution also fail.


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No. 18-5256, Smallwood v. Cocke County


       First Amendment Patronage Dismissal Claim

       Smallwood argues that there is a genuine dispute of material fact regarding Ottinger’s true

motivation for terminating him. He claims he was terminated, at least in part, because he did not

support Ottinger’s mayoral campaign and because he refused to fire an employee—Ellison—who

also did not support her campaign.

       The district court adequately addressed this claim, and this Court will not reiterate the full

reasoning here. In summary, the court recognized that, although the First Amendment generally

prohibits dismissals of public employees based upon political views, public employees in

“policymaking positions” can be dismissed for political reasons. Public employees in this latter

category fall under the so-called “Elrod-Branti exception” to the general prohibition of patronage

dismissals.1 To determine whether a fire chief falls into this exception, the district court discussed

Tompos v. City of Taylor, 644 F. App’x 678 (6th Cir. 2016)—a case the district court called “nearly

identical” to this one—involving an alleged patronage dismissal of a fire chief. Tompos found that

plaintiff fire chief exercised discretionary power over the enforcement of fire-prevention laws and

concluded that he, therefore, fell into the Elrod-Branti exception and could be terminated for

political reasons. Tompos, 644 F. App’x at 683. Smallwood, in his appellate brief, does not argue

why the district court’s reasoning was wrong, does not even cite Tompos, and does not give this

Court any reason to distinguish that case from his. Instead, he reiterates the arguments he made to

the district court—arguments the district court correctly rejected.




       1
         The two United States Supreme Court cases from which this exception is derived are
Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980).
                                                 -8-
No. 18-5256, Smallwood v. Cocke County


       This Court adopts the district court’s reasoning as to the patronage dismissal argument.

Regardless of whether Smallwood’s termination was politically motivated, as Fire Chief, he could

be terminated for political reasons.

       State-Law Retaliatory Discharge Claim

       Tennessee’s retaliatory discharge statute provides that “[n]o employee shall be discharged

or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal

activities.” Tenn. Code Ann. § 50-1-304(b). Smallwood argues that he was terminated for refusing

to participate in an illegal activity—namely, firing Ellison for his political views. He claims that

firing Ellison would have been an “illegal activity” because it would have violated a CSB rule,

which provides, “No person shall be . . . demoted or dismissed from, any position in the classified

service, or in any way favored or discriminated against with respect to employment in the classified

service because of his political or religious opinions.”

       This claim hinges on the legality of the CSB. As discussed above, the CSB lacks authority

to enact rules with any legal effect. Smallwood offers no alternative grounds for this claim. Thus,

the district court did not err in granting summary judgment on this claim.

                                           CONCLUSION

       Smallwood fails to rebut the district court reasoning and fails to identify any genuine issue

of material fact for any of his claims. For these reasons, we AFFIRM.




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