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Due Date:
Date of Request: April 23, 2012
Name of Requestor: Judy Housley
Member:
Jefferson City
Member Contact (name, phone, email):
John Johnson (jjohnson@jeffcitytn.com)
Attorney: Shelly Wilson/Richard Beeler
Question: This question came from Jefferson City (JC). JC has an appeal process in
place for employees to grieve disciplinary action taken up to and including termination of
employment. (JC Policy 1.012 Discipline; 1.013 Grievance Procedure; Disciplinary
Procedures). JC terminated a couple of police officers which may result in employment
litigation. JC has been told by defense counsel and MTAS legal that they may be
creating more exposure by having an appeal process in place.
1) Evaluate whether or not Jefferson City would minimize its exposure if the ability to
appeal an employment decision was eliminated.
2) Do employees have to have an opportunity for a name-clearing hearing?
3) Is that different from an appeal process?
This document is intended for internal use only. All information contained in this document is
property of The Pool. Answers are provided based on the information presented as written in the
question above and are subject to change due to circumstance.
Response:
1) Would Jefferson City minimize its exposure if the ability to appeal an employment
decision was eliminated?
The right of an employee to appeal an employment decision is based on basic
procedural due process requirements of notice and opportunity to be heard when an
employee has established a protected property right of continued employment. However,
Tennessee is an at-will employment state which means that either party may terminate the
employment relationship with or without cause. So long as an employer does not
terminate an employee for a wrong reason, such as one in violation of the employee’s civil
rights, or constituting a violation of an employment contract, the employer can terminate
an employee with or without cause. As such, not all employment disciplinary decisions
involve protected property interests of continued employment. “[P]roperty interests are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law-rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits.” Ludwig v. Board of
Trustees, 123 F.3d 404, 409 (6th Cir. 1997).
An employee is entitled to due process when he is able to show that he has a life,
liberty or property interest protected by the Due Process Clause of the 14th Amendment.
Once such a protected interest is identified, an employee is deprived of that interest if not
given adequate procedural rights.
To prevail on a due process claim, the employee must first show:
1) that he has a cognizable property or liberty interest, and
2) the employer infringed that interest, and
3) the employer did not give him the process that was due.
Gunasekera v. Irwin, 551 F.3d 461, 467 (6th Cir. 2009).
This document is intended for internal use only. All information contained in this document is
property of The Pool. Answers are provided based on the information presented as written in the
question above and are subject to change due to circumstance.
“To have a property interest in a benefit, a person must have more than an abstract
need or desire and more than a unilateral expectation of it.” Baar v. Jefferson County Bd.
of Educ., 311 Fed. Appx. 817, 824 (6th Cir. 2009), citing Town of Castle Rock v.
Gonzales, 545 U.S. 748, 756 (2005). A protected property interest can be formed through
an employer’s custom and practice. However, a benefit is not protected if government
officials have the discretion to grant or deny it. The process that an employee is due
involves a basic requirement of both notice and opportunity to be heard. Gunasekera, at
467- 468.
At-will employment does not create a protected property interest in continued
employment. Brown v. City of Niota, Tenn., 214 F.3d 718, 722 (6th Cir. 2000). Many
Tennessee courts have examined the language in government employee handbooks in
determining whether an at-will employment has evolved into an intent to create a property
interest in continued employment with the government entity. The use of permissive
terms, such as “may,” and references to “examples of grounds for discharge,” are not
binding. Mandatory terms such as “shall” and “will” have been found to be binding.
Furthermore, even if a contract for employment is established, unless the employment is
for a definite term, it is considered to be at-will, terminable by either party at any time
without cause. Bringle v. Methodist Hosp., 701 S.W.2d 622, 625 (Tenn. Ct. App. 1985).
Brown involved the termination of two police officers, one for unsatisfactory
behavior and the other for conflict of interest, by the City of Niota Board of
Commissioners. The court held that the officers had neither protected property nor liberty
interests. With respect to the liberty interest, the court went on to state that even had such
a protected interest existed, the city had not denied the officer a name-clearing hearing
because the officer had filed suit prior to receipt by the city of their request for such
This document is intended for internal use only. All information contained in this document is
property of The Pool. Answers are provided based on the information presented as written in the
question above and are subject to change due to circumstance.
hearing. As such, as of the filing of the lawsuit they had not suffered a deprivation of due
process.
In sum, JC would not necessarily minimize its exposure by eliminating the appeals
process. It would serve JC well to adopt a more comprehensive appeals process for
disciplinary actions. Local government is obligated to ensure due process is afforded all
public employees if a property interest is affected. Keep in mind, this Response is
prepared in the absence of specific facts that could be important to any analysis.
2) Are name-clearing hearings required for employees? Only if the employee establishes
that he has been deprived of a protected liberty interest, and only then when the employee
requests a name-clearing hearing. An employee’s failure to request a name-clearing
hearing is fatal to a claim alleging a deprivation of a liberty interest without due process.
Baar v. Jefferson County Bd. of Educ., 311 Fed. Appx. 817, 826 (6th Cir. 2009).
To obtain relief, the employee must request a name-clearing hearing and show:
1) the employer made stigmatizing statements about the employee in connection
with a change in his employment status, and
2) the statements so “seriously damaged the employee’s standing and associations
in his “community” as to impose on the employee a stigma that “foreclosed the
employee’s freedom to take advantage of other employment opportunities,” and
3) the statements were publicly disclosed, and
4) the statements were false, and
5) the employer voluntarily disseminated the statements to the public.
Baar, at 826 (citations omitted).
To expound on the second prong, above, the Sixth Circuit has stated that a
statement that “merely makes the employee less attractive to other employers but leaves
This document is intended for internal use only. All information contained in this document is
property of The Pool. Answers are provided based on the information presented as written in the
question above and are subject to change due to circumstance.
open a definite range of opportunity does not constitute a liberty deprivation. Ludwig v.
Board of Tr. of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997). A deprivation of
liberty requires a showing of a moral stigma such as immorality or dishonesty. Id.
Allegations of improper or inadequate performance, incompetence, neglect of duty
or malfeasance and mismanagement, if unelaborated, likely will not give rise to a
protected liberty interest requiring a name-clearing hearing. Some examples of the types
of allegations that are of a magnitude that give rise to a protected liberty interest are
charges of dishonesty, immorality, disloyalty, Communism, subversive activities,
alcoholism or narcotics violations. Bessent v. Dyersburg State Community College, 415
F.Supp.2d 874, 886-887 (W.D. Tenn. 2006).
3) Is a name clearing hearing different from an appeal process? Yes, a name-clearing
hearing differs from an appeal process, and is required in certain circumstances when
requested by the employee. The right to a name-clearing hearing arises when an
employee claims a deprivation of a protected liberty interest in his “good name,
reputation, honor or integrity.” Not all employment terminations, or disciplinary
measures, involve such an interest.
Additionally, a name-clearing hearing need not comply with formal procedures to
be valid, but merely provide an opportunity to clear one’s name, Gunasekera, at 469
(citations omitted). However, a name-clearing hearing should also contain a public
component adequately publicized to address the public stigma that was created. Id, at
471. The U.S. Supreme Court, in Mathews v. Eldridge, 424 U.S. 319 (1976), adopted a
three-part balancing test as the standard for determining whether due process demands a
public name-clearing opportunity. First, is the nature of the private interest affected
(seriousness of the charge and potential sanctions). Second, is the danger of error and the
This document is intended for internal use only. All information contained in this document is
property of The Pool. Answers are provided based on the information presented as written in the
question above and are subject to change due to circumstance.
benefit of additional or alternate procedures. Third, is the public or governmental burden
when additional procedures are mandated. Gunasekera, at 470 (citations omitted).
Disclaimer: This Response does not address any the provisions of the Uniform
Administrative Procedures Act, T.C.A. 4-5-101, et seq., nor take into consideration its
applicability hereto.
The foregoing response is based on and expressly limited to the facts and circumstances as
presented in the questions posed. Please be advised that this response and the opinions
expressed herein are subject to change under a different set of or upon presentation of
additional facts and circumstances
Follow-up (if necessary):
This document is intended for internal use only. All information contained in this document is
property of The Pool. Answers are provided based on the information presented as written in the
question above and are subject to change due to circumstance.