Shaw v. SHELBY COUNTY GOVERNMENT

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 17, 2005 Session

WANDA SHAW v. SHELBY COUNTY GOVERNMENT

A Direct Appeal from the Circuit Court for Shelby County

No. CT-005574-02 The Honorable Kay S. Robilio, Judge

No. W2004-01110-COA-R3-CV - Filed April 22, 2005

Shelby County employee appealed denial of review by the County’s Civil Service Merit

Board following elimination of her position. The Shelby County Circuit Court affirmed the denial

of a review by the Board because employee’s position was eliminated due to loss of funding as

opposed to disciplinary action against her. Employee appeals. We affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,

J. and HOLLY M. KIRBY , J., joined.

Emma L. Cole of Memphis For Appellant, Wanda Shaw

Brian L. Kuhn, Shelby County Attorney; Robert B. Rolwing, Senior Assistant County Attorney, For

Appellee, Shelby County Government

OPINION

This case was submitted to the trial court upon Stipulations of Fact. For purposes of

consistency, we reproduce those facts herein:

12. Wanda Shaw [“Plaintiff,” or “Appellant”] began service with

Shelby County Government [“Defendant,” or “Appellee”] as a

durational1 employee in the Private Industry Council Grants program,

in the classified Civil Service Merit System on March 1, 1985,

completing her six (6) month probationary period on August 1, 1985.

13. In 1996, Wanda Shaw applied, qualified for, and was selected for

an Accounting position in the Shelby County Tax Assessor’s Office.

She began her position in the Assessor’s Office on June 15, 1996, and

served a six (6) [month] probationary term, becoming a regular

permanent employee in the Civil Service Merit System.2

14. Wanda Shaw’s position in the Tax Assessor’s Office was

eliminated pursuant to a reduction in force on June 11, 1999, and

pursuant to preferential placement rights was placed back into the

position in the Private Incentive Program.

15. Shelby County, by letter dated June 11, 1999, stated that it “will

honor all benefits and other commitments made to [Wanda Shaw],

and your civil rights will be protected.”3

1

The Shelby County Government Personnel Management System, a handbook made pursuant to the authority

of the Civil Service Merit System to make personnel policy and rules, defines a durational employee as follows:

“Durational employee” - - An employee who is employed for a specific period (i.e.

grant, contract or project) of twelve months or longer. Durational employees

receive all benefits and are considered to be in the classified service and the

equivalent of permanent employees except for the term nature of their employment.

2

The Shelby County Government Personnel M anagement System handbook defines “permanent employee”

as follows:

“Permanent employee” - - An employee whose permanent status has been approved

at the completion of the original employment probationary period and is eligible for

all benefits and rights under the Civil Service System.

3

This letter, from Rita Clark, Assessor of Property, to W anda Shaw, dated June 11, 1999, reads, in pertinent

part, as follows:

W ith the current budget cutbacks in Shelby County Government, it has become

necessary for us to restructure our operations to complete the 2001 Reappraisal in

a timely and efficient manner.

After carefully reviewing all departments within our office, we are eliminating the

six Accountant B positions in Personal Property. The audit work performed by

these positions will be outsourced along with the larger accounts now being handled

by an outside firm.

(continued...)

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16. On June 16, 2000, Wanda Shaw was hired as a durational

employee as a Grants Coordinator for a Juvenile Accountability

Incentive Block Grant (JAIBG), within the Shelby County Revenue

Department.

17. Wanda Shaw was informed by memorandum dated, August 3,

2001, that her position with the Shelby County Revenue Department

would end on September 30, 2001, because the grant which funded

the JAIBG program would no longer be received by Shelby County.4

18. Wanda Shaw was terminated from that position on September

30, 2001.

19. On October 3, 2001, Wanda Shaw sent a request to the Shelby

County Civil Service Merit Board, to appeal her termination to that

Board.5

3

(...continued)

Jay Bailey, our Director of Personnel, has already met with County Personnel

officials to put your name on the priority list for other Accountant B positions

within County Government. They will help us move you into openings as they

occur.

This decision was not made easily or lightly. W e weighed all the options available

and made our decision based on what was best for the overall operation and our

obligation to taxpayers. I appreciate your contributions to this office and will

support your efforts to move on within Shelby County Government.

W hile June 11, 1999 will be your last day at work, you will be paid through July 15,

1999, with the full amount included on your June 30 paycheck. We will honor all

benefits and other commitments made to you, and your civil service rights will be

protected.

4

The Memorandum from Martha Lott, M anager, to W anda Shaw, dated August 3, 2001, reads, in relevant part,

as follows:

This memo is to inform you that the JAIBG Coordinator position will end

September 30, 2001. This position will not be refunded with FY 2000 JAIBG

funds.

I talked with Danny Kail and Jim Martin who state that you applied for and were

hired into a durational position at PIC. Due to the durational status, there are no

preferential hiring rights.

5

A letter from Mark Allen, attorney, to Trish Monteil, Assistant Secretary for the Civil Service Merit Board,

dated October 3, 2001, reads, in pertinent part, as follows:

(continued...)

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20. On October 4, 2001, Danny Kail, then Shelby County

Administrator of Personnel, sent a letter denying Wanda Shaw’s

request for appeal, stating that since Wanda Shaw was not terminated

for disciplinary reasons, “she is not eligible to appeal to the Civil

Service Merit Board.”6

21. The Administrator of Personnel also stated in the October 4,

2001 letter that Wanda Shaw was a durational employee and therefore

had no placement rights.7

(Citations to Record omitted).

On September 30, 2002, Ms. Shaw filed a “Complaint for Violation of Due Process”against

the Shelby County Government. Concerning causes of action, Ms. Shaw’s Complaint reads as

follows:

16. The Defendant’s stated reason that the funding for the Plaintiff’s

position was no longer available was not the true reason for the

Plaintiff’s termination and the Defendant acted in bad faith to avoid

5

(...continued)

I hereby appeal the termination of M s. W anda Shaw from Shelby County

Government effective September 30, 2001 and request a hearing before the Shelby

County Civil Service Merit Board.

6

This letter reads, in relevant part, as follows:

The Shelby County Employee Handbook (p. 34) states the following:

“Civil Service M erit Board–For discipline involving a

demotion in rank or compensation, suspension without pay for

more than t[en] (10) days and termination.

To be eligible for a Civil Service Merit board appeal, an

employee must file a written reqBest with the Administrator of

Personnel within seven calendar days of receipt of the written

notice of the disciplinary action.”

It is our position that she was not terminated from her position for disciplinary

reasons. Therefore, she is not eligible to appeal to the Civil Service Merit Board.

Furthermore, Ms. Shaw was in a durational position and has no placement rights

within the Civil Service System. Ms. Shaw is welcome to apply for any position

that she meets the minimum qualifications for.

7

See footnote 6, supra.

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the Civil Service Merit System disciplinary requirements entitling the

Plaintiff to appeal a termination to the Civil Service Merit Board.

17. The Defendant violated its own Civil Service Merit Act,

Tennessee Private Acts of 1971 Chapter 110, as amended, when it

terminated the Plaintiff, a classified civil service employee without

cause.

18. The Defendant deprived the Plaintiff of her civil rights in

violation of 42 United States Code, Section 1983 when it terminated

the Plaintiff, a tenured employee, from her position without a pre-

termination or post-termination hearing depriving her of her job

without due process of law.

19. The Defendant has continued to violate the Shelby County Merit

Act, Tennessee Private Act of 1971 Chapter 110, as amended by its

failure and refusal to grant the Plaintiff priority placement over other

applicants, even though, the Plaintiff was a regular employee, not

durational when she was terminated, having gained her tenure as a

regular civil service employee after completing probation in the

County Assessor’s Office in 1996.

Ms. Shaw was allowed to amend her pleading. The Amended Complaint, filed on February 18,

2003, references the June 11, 1999 letter from the Shelby County Assessor, in which the Assessor

stated that Ms. Shaw’s civil service rights would be protected, see supra at footnote 3. The

Amended Complaint asserts that “at no time did the plaintiff waive her civil service status as a

regular employee.”

On February 20, 2003, Shelby County filed its Answer. The Answer asserts a violation of

the applicable statute of limitations and states that “at no time was [Ms. Shaw’s] status changed from

durational employee to regular employee;” that Ms. Shaw’s position was eliminated due to lack of

funding; and that because Ms. Shaw was not terminated for a disciplinary reason, she did not qualify

for a hearing before the Shelby County Civil Service Merit Board.

On September 16, 2003, the case was submitted to the trial court upon “Stipulations for Trial

on the Record.” The Stipulations included both statements of fact, see above, and of law.

On March 25, 2004, the trial court entered Judgment in favor of Shelby County. The

Judgment reads, in relevant part, as follows:

1. Wanda Shaw was a permanent employee under the Shelby County

civil service merit system from June 1996 to June 1999.

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2. That permanent status changed to a durational status when her

permanent position with the Shelby County Assessor was eliminated

and she accepted a grants coordinator position with the Shelby

County Revenue Department in June 2000.

3. The block grant which funded that grants coordinator position

ended in September 2001.

4. Ms. Shaw’s grants coordinator position was eliminated when the

grant which funded her position ended.

5. Ms. Shaw remained a durational employee at the time of

termination of her position in September 2001.

6. According to the language of Tennessee 1971 Private Acts,

chapter 110, creating the Civil Service Merit System of Shelby

County, as well as the Shelby County Government personnel

Management System handbook, set out in the Stipulations, a

durational employee is not entitled to a civil service hearing upon

elimination of the employee’s position for loss of funding.

7. For those reasons, Wanda Shaw is not entitled to a civil service

hearing before the Shelby County Civil Service Merit Board.

Ms. Shaw appeals from this Judgment and raises the following issue for review as stated in

her brief:

Whether the Appellant was entitled to a hearing before the Civil

Service Merit Board for her September 30, 2001, termination from

the Juvenile Accountability Incentive Block Grant (JAIBG) Program?

A. Whether the Appellant, who was in the classified service with

permanent employee status had the right to challenge her transfer

from permanent employee status to durational employee status in an

appeal to the Shelby County Civil Service Merit Board?

B. Whether the Appellant, who was told that her civil service rights

would be protected when she transferred from permanent status to

durational status, has a right to challenge her termination from

employment?

As noted above, this case was submitted to the trial court upon stipulations of fact. It is well

settled in Tennessee that, when a trial court is called upon to make a finding of fact based on

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uncontroverted evidence, its conclusion is one of law, and the appellate courts will review that

finding as a question of law. Billington v. Crowder, 553 S.W.2d 590, 595 (Tenn. Ct. App.1977);

Continental Ins. Co. v. Cooper, 58 Tenn. App. 316, 430 S.W.2d 661 (1968). As a question of law,

our review of the trial court’s Judgment is de novo upon the record with no presumption of

correctness accompanying the trial court’s conclusions of law. See Tenn. R. App. P. 13(d); Waldron

v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998); Sims v. Stewart, 973 S.W.2d 597, 599-600

(Tenn. Ct. App. 1998).

Ms. Shaw first asserts that she had the right to challenge her transfer from permanent

employee status to durational employee status in an appeal to the Shelby County Civil Service Merit

Board. As set out above, in 1996, Ms. Shaw was hired for an Accounting position in the Shelby

County Tax Assessor’s Office. She completed her six month probationary period and became a

permanent employee. On June 11, 1999, her position in the Tax Assessor’s Office was eliminated

due to a reduction in force. At that time, Ms. Shaw received a letter from the Assessor of Property

(see footnote 3 above), which indicated that Shelby County would “honor all benefits and other

commitments made to you, and [that Ms.Shaw’s] civil rights [would] be protected.” On June 16,

2000, Ms. Shaw accepted a durational position with the Shelby County Revenue Department.

On appeal, Ms. Shaw asserts that the 1999 letter from the Assessor of Property in effect

allows her to maintain her status as a permanent employee despite the fact that she accepted a

durational position on June 16, 2000. Because her durational position was later eliminated, Ms.

Shaw now asserts that she should be able to challenge her reclassification from permanent to

durational employee. We disagree.

The Civil Service Merit System of Shelby County was created by the Tennessee Private Acts

of 1971, Chapter 110 (hereinafter, “the Act”) to provide a unified personnel system for employees

of the Shelby County Government. The Act provides in Section 21, “Appointments permanent:”

Except as otherwise provided in the Act, no employee

in the classified service who is not a durational

employee and who shall have successfully completed

the prescribed period of probation and therefore has

been permanently appoint or inducted into the

system under the provisions of this Act, shall be

dismissed, suspended, demoted or subjected to other

discipline, except for cause.

(Emphasis added).

Under Section 21 of the Act, when Ms. Shaw completed her probationary period and became

a permanent employee in the Tax Assessor’s Office in 1996, she gained a property interest in that

position. Consequently, she could only be removed from that position “for cause.” Section 22 of the

Act describes the types of “Disciplinary Action” that may be levied against an employee, to wit:

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For unsatisfactory performance of duties or other just cause, an

employee in the classified service may be subject to the following

discipline by the appointing authority:

(a) Reprimand;

(b) Suspension without pay for a period not to

exceed 30 days;

(c) Reduction in pay within allowable range

for class of employee;

(d) Demotion to a lower classification;

(e) Dismissal from service;

(f) Retirment under the terms of the

Retirement Act, as applicable.

In the first instance, there is no indication in this record that Ms. Shaw was terminated from her

position with the Tax Assessor’s Office for any disciplinary reason. Rather, the “Stipulations of

Fact” indicate that her job was lost as a result of a reduction in force. Section 23 of the Act, is

entitled “Reply to Discipline; appeal from discipline” and reads, in pertinent part, as follows:

Any employee demoted in rank or compensation, suspended without

pay for a period exceeding ten days, or dismissed, may, within seven

days after service of the order of demotion, suspension, or dismissal

as hereinabove provided, appeal to the board.

Consequently, even if we assume arguendo that Ms. Shaw had a cause of action under the Act, by

the terms of that Act, she had seven (7) days from her dismissal to file an appeal with the Board.

There is no indication in the record, that Ms. Shaw followed this procedure.

Again, there is no indication that Ms. Shaw lost her position in 1999 due to any disciplinary

action against her. In terms of Ms. Shaw’s rights in the case of a layoff, the Act provides in Section

25, “Layoff,” as follows:

Notwithstanding the other provisions of this

Act, in the event that conditions in any department or

office of the county or the financial condition of the

county necessitates a reduction in the workforce, the

required reduction shall be made in such class or

classes as the appointing authority designates.

Favorable consideration must, however, be given

toward retention of those employees in the highest

class of positions. If necessary to achieve their

retention employees may be temporarily demoted to

a lower class of position. The determination as to

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which employees within a particular class are to be

laid off rests with the sound discretion of the

appointing authority and will be based on such

considerations as service ratings, seniority and other

relevant factors. Any employee laid off or

temporarily demoted to a lower class of position

under this section shall be given priority over other

applicants to reinstatement to his former position or to

a comparable position in the system.

The Shelby County Government Personnel Management System handbook addresses layoffs and

reductions in force as follows:

Policy No. 411, “Layoffs”:

The appointing authority may separate any

permanent employee, without prejudice, because of

lack of funds, curtailment of work or reasons of

efficiency. The order of layoffs shall be based upon

performance ratings, length of service and other

pertinent factors under the formula established by the

Administrator [of Personnel]. No bumping is

permitted of other employees in other departments

who hold the same class position unless specified by

a bargaining unit agreement. The names of all

employees who are laid off shall be reported to the

Administrator by the department or agency, and at the

request of the individual employee, the administrator

shall place these names on a re-employment register.

No permanent employee, however, shall be separated

for such reason while there are emergency, temporary,

provisional, or probationary employees serving in the

same class or position in the County service.

The Shelby County Employee Handbook states as to reduction in force that:

In the event of a layoff, consideration will be given to

length of service and performance ratings. If laid off,

a regular classified employee may request the

Administrator of Human Resources to place his or her

name on a re-employment register that allows for

preferential placement for as long as one year.

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Following the reduction in force in 1999, Ms. Shaw accepted a position as a durational employee

with the Shelby County Revenue Department. There is no indication that she was caused to take this

position under any duress or coercion. Ms. Shaw’s permanent employee position with the Assessor

was one of six positions abolished as a result of a reduction in force and, according to the 1999 letter

the position were to “be outsourced along with the larger accounts now being handled by an outside

firm.” Before the notification letter was delivered to Ms. Shaw, the Assessor’s director of personnel

had “already met with County Personnel officials to put [Ms. Shaw’s] name on the priority list” for

other jobs in the County. Pursuant to the applicable sections of the Act and the Handbook dealing

with layoffs and reductions in force, it appears that Ms.Shaw’s civil service preferential re-

employment rights, as a permanent employee with the Assessor, were honored just as the Assessor

promised in the notification letter when Ms. Shaw was placed back into Shelby County employment

in her durational employee position as a Grants Coordinator.

Wanda Shaw was informed by memorandum, dated August 3, 2001, that her position as

Grants Coordinator with the Shelby County Revenue Department would end on September 30, 2001,

because the grant that funded the JAIBG program would no longer be received by Shelby County.

Ms. Shaw filed a notice of appeal with the Board within the seven (7) day period discussed above.

The Board denied her request to review the termination and Ms. Shaw asserts that such was in direct

violation of her civil rights under 42 U.S.C. § 1983. We disagree.

To support her position, Ms. Shaw relies upon this Court’s opinion in Armstrong v.

Tennessee Dep’t. of Veterans Affairs, 959 S.W.2d 595 (Tenn. Ct. App. 1997). In that case, one

month after a change in the gubernatorial administration, Mr. Armstrong’s new superior “reclassified

Mr. Armstrong’s position from career service [i.e. civil service protection] to executive service

status. Only two days following the reclassification...[the new superior] terminated Mr. Armstrong

from this position.” Id. at 596. Unlike the case at bar, Mr. Armstrong’s case involved a blatant

subterfuge in that he was clearly reclassified in order to bypass due process. Here, no such

subterfuge is apparent from the stipulated facts. In addition, the civil service system at issue in

Armstrong provided that “Mr. Armstrong could not be deprived of his property right by ‘suspension,

demotion, dismissal, or any other action’ without minimal due process.” Id. at 598 (emphasis in

original). The Armstrong Court relied upon this language to rule that a hearing was required based

upon the subterfuge present in Mr. Armstrong’s case. In contrast, the Shelby County civil service

system provides for due process hearings under certain, specified circumstances that all arise from

disciplinary actions against an employee. We find nothing, however, in the Act that gives rise to a

right to a hearing if an employee’s position is abolished for a legitimate reason such as restructuring

or, as in the case at bar, the ending of a grant. As set out in 15A Am.Jur.2d Civil Service § 82

(2000):

As a general rule, the abolition of a civil service office or position in

the interests of economy may be done without notice or hearing to the

employee affected thereby, unless a statute requires notice and

hearing before the position is abolished. If such rights are provided to

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the employee, the failure to give them invalidates the abolishment of

the position.

The abolition of the position cannot be arbitrary or done in bad faith.

If the abolition of a position is not in good faith, the affected

employee has the right to a full hearing on the issue.

(Footnotes omitted).

Although we can find no Tennessee cases directly supporting the proposition set out in the

above section of Am.Jur.2d, other jurisdictions have long held that good faith abolishment of a civil

service position does not give rise to a right to a hearing. See, e.g., Wood v. Loveless, 244 Iowa 919,

58 N.W.2d 368 (1953) (“The authority which creates an office may abolish it, if it does so in good

faith.”); Covey v. City of Plainfield, 11N.J. 375, 94 A.2d 669 (1953) (“The city, however, could at

any time abolish plaintiff’s [position] for any legitimate reason...without first giving him a

hearing.”); City and County of Denver v. Norris, 131 Colo. 259, 281 P.2d 160 (1955) (“It may be

accepted as well established that civil service laws do not guarantee tenure positions that are no

longer required. Such positions may be abolished if, in good faith, such are considered to be no

longer a public necessity.”).

As discussed above, there is no indication in this record that Ms. Shaw was terminated from

her position as Grants Coordinator for any reason other than the loss of a grant. Likewise, there is

no indication that she was terminated from her position in the Tax Assessor’s Office for any reason

other than a legitimate reduction in force. In the absence of bad faith on the part of the employer,

as was the case in Armstrong, a legitimate abolishment of a civil service office or position does not

give rise to the right to a hearing under the Shelby County civil service system. As this Court stated

in Case v. Shelby County Civil Serv. Merit Board, 98 S.W.3d 167, 172 (Tenn. Ct. App. 2002) “[t]he

most fundamental element of due process is the opportunity to be heard at a meaningful time and in

a meaningful manner.” The Court goes on to say that due process requires an opportunity to confront

and cross-examine witnesses “where the decision to terminate employment turns on determinations

of issues of fact.” Id. at 175. In the instant case, there is a stipulation of fact indicating that Ms.

Shaw’s positions were eliminated because of “a reduction in force” and “because the grant which

funded the [position] would no longer be received by Shelby County.” There is no indication of

subterfuge or coercion. The positions are simply gone. Consequently, nothing would be gained by

a hearing.

For the foregoing reasons, the Judgment of the trial court is affirmed. Costs of this appeal

are assessed against the Appellant, Wanda Shaw, and her surety.

__________________________________________

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W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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