IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

)
DANYELLE E. BENNETT, )
)
Plaintiff, )
)
-vs- ) Case No.
)
) JURY DEMAND
METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON )
COUNTY, )
)
Defendant. )

COMPLAINT

Speech on public issues occupies the highest rung of the hierarchy of First
Amendment values and is entitled to special protection.

---Snyder v. Phelps, 131 S.Ct. 1207, 1211, 562 U.S. 443, 444 (U.S. 2011).

I.
Introduction

1. Danyelle E. Bennett brings this action against the Metropolitan Government of

Nashville and Davidson County, Tennessee pursuant to 42 U.S.C. 1983 for redress

of wrongs committed by the Defendant, and for compensation for injuries arising out

of the Defendants intentional deprivation of her constitutionally protected rights under

the First and Fourteenth Amendments to the United States Constitution as well as its

violation of her rights under corollary provisions of the Constitution of the State of

Tennessee. Specifically, the Plaintiff sues the Defendant for its retaliation against her

for the exercise of her freedom of political expression as a private citizen, for her

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commentary on social media, and her response to a political comment posted on her

Facebook page about a matter of inherent public concern, i.e. the election of Donald J.

Trump as President of the United States. In addition, the Defendant censored

Plaintiffs speech activity by requiring her to remove a Trump 2016 sweatshirt at

work showing her support for this presidential candidate.

2. The Defendant also has adopted an arbitrary and double standard by

selectively enforcing its policies with regard to employee use of social media. The

severity of the penalty imposed in this case termination -- was arbitrary and

constitutes viewpoint discrimination. The Defendants arbitrary practice, custom,

usage and policy have the effect of intentionally, and without a rational basis, treating

the Plaintiff differently from others who are similarly situated and constitutes a

violation of the Equal Protection Clause of the Fourteenth Amendment.

3. Plaintiff seeks declaratory relief, nominal damages, compensatory damages

and reasonable attorneys fees and costs as permitted by 42 U.S.C. 1988.

II.
Jurisdiction and Venue

4. Jurisdiction is vested in this Court to hear and decide all issues presented in

this case pursuant to 28 U.S.C. 1331, 1343 and 1367, this case being predicated on a

federal question and the enforcement of certain federal constitutionally protected rights

as guaranteed under the First and Fourteenth Amendments of the United States

constitution.

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 5. The Court has the authority to grant declaratory relief under the Declaratory

Judgment Act, 28 U.S.C. 2201 and 2202.

6. Venue is proper in this Court under 28 U.S.C. 1491(b), as the Plaintiff and

the Defendant reside or are situated within this federal district and the Defendants

wrongful conduct took place within this federal district.

III.
Parties
Plaintiff
7. Danyelle Bennett is an adult citizen and resident of Murfreesboro, Rutherford

County, Tennessee, and is a former employee of the government of the Metropolitan

Government of Nashville and Davidson County, Tennessee.

Defendant
8. The Metropolitan Government of Nashville and Davidson County, Tennessee

(Metro or in the alternative Metro Government) is a local body politic and

municipality and exists under and by virtue of the laws of the State of Tennessee.

IV.
Facts

9. On November 1, 2001, Danyelle Bennett was employed by Metro as an

emergency 911 dispatcher for the Metropolitan Nashville Emergency Communications

Department (ECC).

10. Ms. Bennetts job duties consisted primarily of responding to emergency 911

telephone calls for assistance and dispatching appropriate police, fire department or

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emergency medical services. She did not hold any managerial position; nor did she

oversee or supervise other employees within her department at Metro.

11. Throughout her employment, Ms. Bennett consistently scored acceptable or

commendable ratings on all of her employee evaluations by her superiors. Prior to

her termination and the events that gave rise to this Complaint, she had never been

subjected to any disciplinary action of any type.

12. On June 16, 2015, Donald J. Trump formally announced his candidacy for the

office of President of the United States in the 2016 presidential election.

13. In April of 2016, Ms. Bennett wore a sweatshirt to work that displayed a pro-

Trump message. Specifically, the sweatshirt had imprinted on it the slogan: Trump

2016.

14. Shortly after she arrived at work, Ms. Bennett was summoned to her

supervisor, Judy Langstons tower and advised that she needed to change shirts

because she was in violation of Metro policy. Ms. Bennett did as instructed. Later that

morning, after the Manager Lisa Baker and Assistant Director Angie Millikin came in

to work, they apparently reviewed the policy and Lisa Baker told Ms. Bennett she

could put the sweatshirt back on. Supervisor Langston, the one that originally told her

to take it off, apologized to Ms. Bennett for misunderstanding the policy.

15. That same afternoon, at approximately 1:30 p.m., Ms. Bennett was again

called back to the office where Ms. Baker told her that an attorney with the employees

union had contacted her, and she would have to remove the sweatshirt. Ms. Bennett

did as instructed and again removed the sweatshirt.

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 16. Shortly thereafter, as Ms. Bennett was leaving work, she observed some of her

fellow employees looking her direction and laughing in a mocking and derisive tone

and signaling their ridicule toward the Plaintiff. Given the timing of this mocking

behavior, the Plaintiff alleges that it was intentionally designed to further humiliate her

for being singled out by her employer and made to remove a sweatshirt with a political

message that others found offensive.

17. On November 8, 2016, the nation elected Donald J. Trump as its 45th President

of the United States.

18. On the evening of November 8, 2016, Ms. Bennett stayed up to watch the

election returns. At approximately 3:00 a.m. on the morning of November 9, 2016,

shortly after the news agencies called the election for Donald Trump, Ms. Bennett

posted an image of a map of the United States showing the red states and blue

states indicating the margin of electoral delegates won by both Donald Trump and

Hillary Clinton.

19. Within minutes after posting this image, Ms. Bennett noticed an unusual

comment on her Facebook home page from an individual whom she did not recognize

named Mohamed Aboulmaouahib. The message read:

20. Ms. Bennett instinctively responded to this mysterious post just before retiring

for the evening with the following political comment satirizing the post she had just

received from Mr. Aboulmaouahib:

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 21. Ms. Bennett was off duty on November 9, 2016. On that date she noticed the

following comment on her Facebook post from a fellow employee, Shanette Summers:

22. Ms. Bennett responded to Ms. Summers and explained her post from early that

morning as follows:

23. The comment by Shanette Summers was tagged by another employee in Ms.

Bennetts department, Derica Lowe who posted the comment: Girl please. Jokes my

ass. Ms. Lowe also threatened to report Ms. Bennetts Facebook remark.

24. At approximately 3:55 p.m., Ms. Bennett removed from her Facebook page

Mohamed Aboulmaouahibs comment and her response, as well as everyones

comments.

25. Ms. Bennetts responsive comment was available for public view a total of

only approximately twelve hours.

26. Ms. Bennetts private and political Facebook comment was not directed at the

Metropolitan Government of Nashville and Davidson County, Tennessee.

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 27. Ms. Bennetts private and political Facebook post commented on a matter of

inherent public opinion.

28. Ms. Bennetts responsive Facebook comment was not directed at or

threatening or harassing of any employee of the Metropolitan Government of

Nashville and Davidson County, Tennessee.

29. Ms. Bennetts private and political Facebook comment did not express any

grievance related to departmental policies or fellow workers within her department.

30. When Ms. Bennett posted her remarks on her personal Facebook following the

election results on November 10, 2016, she was speaking as a citizen on a matter of

public concern and not as an employee about a matter of personal interest.

31. Ms. Bennetts responsive Facebook comment related to the national election

and was not substantially related to any important government policy of the

Metropolitan Government of Nashville and Davidson County, Tennessee.

32. Ms. Bennetts responsive Facebook comment did not have the effect of

creating a substantial disruption in the workplace.

33. Ms. Bennetts responsive Facebook comment did not impair the maintenance

of discipline by her supervisors in the workplace.

34. Ms. Bennetts responsive Facebook comment did not have the effect of

impairing harmony among co-workers. Ms. Bennett apologized for her comment.

35. Ms. Bennetts responsive Facebook comment did not damage close personal

relationships in the workplace.

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 36. Ms. Bennetts responsive Facebook comment did not impede the performance

of her duties as a public employee.

37. Ms. Bennetts responsive Facebook comment did not interfere with the

operation of the ECC Department.

38. Ms. Bennetts responsive Facebook comment did not undermine the mission

of the ECC Department.

39. Ms. Bennetts responsive Facebook was not communicated to directly or

intended for individual co-workers.

40. Ms. Bennetts responsive Facebook comment did not conflict with her

responsibilities within the ECC Department.

41. On the afternoon of November 9, 2016, after she had already removed the

post from her Facebook page, Ms. Bennett received a telephone call from her manager,

Bruce Sanschargrin. Mr. Sanschargrin advised Ms. Bennett that management had

received a complaint from one employee in the Department about her Facebook post.

He also advised her that Director Michele Donegan would be coming to roll call to

address the matter and may want to speak with her as well.

42. On November 10, 2016, Ms. Bennett reported to work and was met by

Director Donegan who summoned her to meeting with Ms. Donegan and Mr.

Sanschargrin before the morning roll call.

43. During this meeting, Mr. Sanschargrin stated that some anonymous

individual had texted him from a fake phone number and suggested that he check out

an email that had been sent to Mayor Megan Barry along with an altered screen shot of

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the Plaintiffs Facebook post. When the email was shown to the Plaintiff, she noticed

Mr. Aboulmaouahibs Facebook comment had been blackened out of the email to

Mayor Barry. Ms. Bennett explained to her superiors that the omission of Mr.

Aboulmaouahibs Facebook comment from the email sent to Mayor Barry altered the

context in which she had posted this comment, and that those were not her words, but

those of the earlier commentator to whom she was responding. Ms. Bennett also

explained that she certainly was not a racist and did not intend her comment in a racist

way and that she was merely mocking the earlier post. In addition, she mentioned that

others in her department had posted far more racially offensive remarks than this on

their personal Facebook pages.

44. Director Donegan and Mr. Sanschargrin admitted that they had seen the entire

communication thread including the earlier post by Mr. Aboulmaouahib; however,

they advised Ms. Bennett that her explanation of the event in question did not excuse

her conduct. The Plaintiff was then advised that she was being placed on immediate

administrative leave.

45. Plaintiff remained on administrative leave from November 10 to November

13, 2016, and then began her FMLA leave. When she returned to work on December

28, 2016, she was again placed on administrative leave.

46. Plaintiff alleges upon information and belief that in the days following

November 9, 2016, one or more of the employees in her office also contacted Mayor

Megan Barry to report Ms. Bennetts Facebook post and to demand that Ms. Bennett

be sanctioned or fired for this conduct.

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 47. Mayor Megan Barry publicly expressed her sponsorship and endorsement of

Hillary Clinton throughout the presidential campaign, and as shown in the following

photograph, appeared several times in televised broadcasts showing her personal

support for Ms. Clinton.

48. Metro had in effect in November of 2016 the following Civil Service Rules:

SECTION 6.1 - EMPLOYEE CONDUCT IN GENERAL An employee of the

Metropolitan Government shall not engage in any criminal, dishonest,
infamous, immoral, or disgraceful conduct or behavior, activity, or association
which discredits him and/or the Metropolitan Government. Each employee is
expected to conduct himself both on and off the job in such a manner as to
reflect credit on both himself and the Metropolitan Government.

***

SECTION 6.2 - POLITICAL ACTIVITY

Political activities, including running for political office, are not to be conducted
at the workplace or during working hours. Time off for such purposes will be in
accordance with applicable leave policies in these Civil Service rules. Civil
Service employees should refer to state law concerning any further rights to
engage in political activities.

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 49. In addition, Section 6.7 of the Metro Civil Service Rules lists 33 separate grounds for

employee disciplinary action. Included among these are the following:

Sub-section 32. Any failure of good behavior which reflects discredit upon
himself, the department and/or the Metropolitan Government.

Sub-section 33. Conduct unbecoming an employee of the Metropolitan

Government.

50. In addition, during November of 2016, Metro had promulgated the following

IT Policy regarding employee use of social media:

Use of social media. In general, employees who participate in social media

and social networking are free to publish their own personal information
without censorship by the Metropolitan Government. Employees who
choose to identify themselves as Metropolitan Government employees
through social media must state in clear terms that their expressed views are
theirs alone and do not reflect the views of the Metropolitan government.
Except as authorized, employees are prohibited from representing the
Metropolitan Government through their personal use of social media. Just
as employees behavior outside of work can constitute a failure of good
behavior which reflects discredit upon themselves and/or the Metropolitan
Government, their contributions to social media or social networking can do
the same. In situations where an employees contribution to social media
causes an issue which is substantially related to an important government
interest or which has the effect of creating a substantial disruption in the
workplace, such as where the contribution is tied to threatening or
discriminatory, harassing or retaliatory behavior directed at the Metropolitan
Government or an employee of the Metropolitan Government, disciplinary
action up to and including termination may be merited. Except where
authorized, employee social media content will not include intellectual
property of the Metropolitan Government such as drawings, designs,
software ideas and ideations or the Metropolitan Governments logo.

51. During Plaintiffs FMLA absence and administrative leave from November

10, 2016 through January 10, 2017, the Defendant did not conduct any witness

interviews regarding the allegations of Ms. Bennetts infraction of Metros policy.

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 52. On January 10, 2017, Ms. Bennett and her attorney, Daphne Davis met with

Director Donegan and Mr. Sanschargrin at which time Ms. Bennett was terminated

from her employment.

53. The Defendants enforcement of the foregoing Civil Service Rules and IT

Policy is arbitrary and selective.

54. Plaintiff never intended her response to the Facebook post to Mohamed

Aboulmaouahib wherein he used the slang word Niggaz, nor her use of this word in

her response in a racist context or as a means of targeting any particular group.

55. While the Plaintiff does not use this term even in her casual speech, slang

variations of the word niggaz were often used in colloquial conversation among

African American employees in her Department, as a word of comaraderie.

56. Despite the generally accepted and colloquial use of this term among African

Americans, Ms. Bennett has never during the fifteen years of her employment with

Metro ever displayed any racially inappropriate behavior toward any co-worker or any

particular group. Ms. Bennett has never uttered, whether verbally or in writing, any

remark which could be characterized as racially derogatory or insulting of any

individual or group, and has instead formed close friendships with several African

American fellow workers at Metro.

57. Other employees within the ECC Department at Metro have routinely posted

racially charged comments on Facebook. On one such occasion, an African American

employee of ECC (who is believed to be one of the former ECC employees who

complained to the Mayors office about Ms. Bennetts brief Facebook post on

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 November 9, 2016) posted a photograph of a female Caucasian employee referring to

her with the racist term cracker.

58. Many of these racially offensive remarks were plainly visible on the Facebook

home pages and liked by several ECC employees. By illustration and not limitation,

the Plaintiff has attached hereto as collective Exhibit A samples of such Facebook

posts by present or former employees of ECC which were available for public viewing.

59. Plaintiff further alleges that when President Barak Obama was elected, African

American employees within her department at Metro openly commented Its about

time we had a black president. To Plaintiffs knowledge none of these employees

were subjected to any discipline for these remarks.

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 VI.
Causes of Action

COUNT I

42 U.S.C. 1983
Violation of First Amendment of United States Constitution

60. Plaintiff incorporates by reference herein as fully as though set forth verbatim

the allegations set forth in the preceding numbered paragraphs and does further allege

as follows.

61. The Defendants decision to terminate the Plaintiffs employment was

retaliatory in nature and based, in whole or in part, on her personal exercise of her

protected free speech activity on a matter of inherent public concern.

62. The Defendants requirement that Plaintiff remove her sweatshirt at her place

of employment, particularly when coupled with the implied threat of disciplinary

action for insubordination if she refused, constitutes viewpoint discrimination and

impermissible governmental censorship of protected free speech activity.

63. The Defendants actions, as set forth herein, served to deprive the Plaintiff of,

and to infringe upon, her protected rights of freedom of expression as guaranteed by

the First Amendment of the United States Constitution.

64. As a proximate result of the Defendants actions, the Plaintiff has suffered,

and continues to suffer, economic and pecuniary damages in the form of loss of

earnings. In addition, the Plaintiff has suffered mental anguish, humiliation,

embarrassment and emotional injury for which she is entitled to an award of

compensatory damages.

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 COUNT II
Violation of Tennessee Constitution
Article I, Section 19

65. Plaintiff incorporates by reference herein as fully as though set forth verbatim

the allegations set forth in the preceding numbered paragraphs and does further allege

as follows.

66. Article I, 19 of the Constitution of the State of Tennessee provides as

follows:

Freedom of speech and press; defamation

That the printing presses shall be free to every person to examine the proceedings of
the Legislature; or of any branch or officer of the government, and no law shall ever
be made to restrain the right thereof. The free communication of thoughts and
opinions, is one of the invaluable rights of man, and every citizen may freely speak,
write, and print on any subject, being responsible for the abuse of that liberty. But in
prosecutions for the publication of papers investigating the official conduct of
officers, or men in public capacity, the truth thereof may be given in evidence; and in
all indictments for libel, the jury shall have a right to determine the law and the facts,
under the direction of the court, as in other criminal cases.

67. The Defendants decision to terminate the Plaintiffs employment was

retaliatory in nature and based, in whole or in part, on her personal exercise of her

protected free speech activity on a matter of inherent public concern.

68. The Defendants decision, under threat of disciplinary action, to require her to

remove her sweatshirt at her place of employment constitutes viewpoint discrimination

and impermissible governmental censorship of protected free speech activity.

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 69. The Defendants actions, as set forth herein, served to deprive the Plaintiff of,

and to infringe upon, her protected rights of freedom of expression as guaranteed by

the Constitution of the State of Tennessee.

70. As a proximate result of the Defendants actions, the Plaintiff has suffered,

and continues to suffer economic and pecuniary damages in the form of loss of

earnings. In addition, the Plaintiff has suffered mental anguish, humiliation,

embarrassment and emotional injury for which she is entitled to an award of

compensatory damages.

COUNT III
Equal Protection Clause
Of the Fourteenth Amendment of the United States Constitution

71. Plaintiff incorporates by reference herein as fully as though set forth verbatim

the allegations set forth in the preceding numbered paragraphs and does further allege

as follows.

72. The Equal Protection Clause of the Fourteenth Amendment protects each

person against intentional, arbitrary government discrimination, whether based on a

policys express terms or improper implementation by government agents.

73. The Supreme Court has recognized successful equal protection claims

brought by a class of one, in which a plaintiff alleges that the government has

intentionally and without a rational basis treated her differently from others who are

similarly situated.

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 74. The Defendant has selectively enforced its Civil Service Rules 6.1, 6.2 and 6.7

as well as its IT and Social Media Policy as applied to the Plaintiffs conduct in this

case. The effect of the Defendants practice, custom and policy is to erect a double

standard which discriminates against the Plaintiff based on the content and viewpoint

of her speech activity.

75. The Defendants actions, as set forth herein, served to deprive the Plaintiff of,

and to infringe upon, her protected rights of freedom of expression as guaranteed by

the Equal Protection Clause of the Fourteenth Amendment of the United States

Constitution.

76. As a proximate result of the Defendants actions, the Plaintiff has suffered,

and continues to suffer economic and pecuniary damages in the form of loss of

earnings. In addition, the Plaintiff has suffered mental anguish, humiliation,

embarrassment and emotional injury for which she is entitled to an award of

compensatory damages.

COUNT IV

Due Process Clause

Violation of Fourteenth Amendment

77. Plaintiff incorporates by reference herein as fully as though set forth verbatim

the allegations set forth in the preceding numbered paragraphs and does further allege

as follows.

78. At the time of Plaintiffs termination, the Defendant maintained a Use of

Social Media policy which provided as follows:

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 Use of social media. In general, employees who participate in social
media and social networking are free to publish their own personal
information without censorship by the Metropolitan Government.
Employees who choose to identify themselves as Metropolitan
Government employees through social media must state in clear
terms that their expressed views are theirs alone and do not reflect
the views of the Metropolitan government. Except as authorized,
employees are prohibited from representing the Metropolitan
Government through their personal use of social media. Just as
employees behavior outside of work can constitute a failure of good
behavior which reflects discredit upon themselves and/or the
Metropolitan Government, their contributions to social media or
social networking can do the same. In situations where an
employees contribution to social media causes an issue which is
substantially related to an important government interest or which
has the effect of creating a substantial disruption in the workplace,
such as where the contribution is tied to threatening or
discriminatory, harassing or retaliatory behavior directed at the
Metropolitan Government or an employee of the Metropolitan
Government, disciplinary action up to and including termination
may be merited. Except where authorized, employee social media
content will not include intellectual property of the Metropolitan
Government such as drawings, designs, software ideas and ideations
or the Metropolitan Governments logo.

79. Plaintiff alleges that this rule of conduct, as applied in the instant case, is

unconstitutionally vague and overbroad.

80. In addition to being unconstitutionally vague, the Defendants Social Media

policy has the impermissible effect of restricting the Plaintiffs constitutionally

guaranteed right to freedom of expression.

81. Plaintiff seeks declaratory judgment declaring this provision of the

Defendants policy unconstitutional.

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 Request for Relief

Declaratory Judgment

1. An actual controversy exists between the parties as to whether the Defendants

policies, practices and customs with regard to the restrictions placed its employees free

speech activity as expressed on the employees personal social media are enforced in an

arbitrary manner and therefore violate the employees constitutional rights. Plaintiff

respectfully requests a declaratory judgment that the actions of the Metropolitan

Government of Nashville and Davidson County, Tennessee violated the federal and state

constitutional rights of the Plaintiff.

Nominal Damages

2. Plaintiff seeks an order awarding nominal damages for the Defendants violation

of her federal and state constitutional rights.

Compensatory Damages

3. Plaintiff seeks an order awarding compensatory damages for the Defendants

violation of her federal and state constitutional rights in the amount of $2,000,000.

Attorneys Fees and Costs

4. Plaintiff seeks an order awarding the costs of this cause, including attorneys

fees, costs and expenses under 42 U.S.C. 1988.

Jury Demand

5. Plaintiff demands a jury of six to hear and try this case.

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 Other Relief

6. Plaintiff additionally requests such other relief as the Court deems just and

proper.

Respectfully submitted,

CRAIN|SCHUETTE ATTORNEYS

/s Larry L. Crain________________
Larry L. Crain
Tn. Supr. Crt. No. 9040
5214 Maryland Way
Suite 402
Brentwood, TN 37027
Tel. 615-376-2600
Fax. 615-345-6009
Larry@CSAFirm.com

Counsel for the Plaintiff

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