Paul Zachary Moss v. Shelby County Civil Service Merit Board

03/18/2020

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 6, 2019 Session

PAUL ZACHARY MOSS v. SHELBY COUNTY CIVIL SERVICE MERIT

BOARD

Appeal by Permission from the Court of Appeals

Chancery Court for Shelby County

No. CH-15-1669 JoeDae L. Jenkins, Chancellor

___________________________________

No. W2017-01813-SC-R11-CV

___________________________________

The issue presented is whether the Shelby County Fire Department provided a

firefighter with sufficient notice of the reasons for his termination. The Fire Department

advised the firefighter that he was facing possible termination for violating two specific

Fire Department rules. After further investigation and a meeting with the firefighter, the

Fire Department gave him a termination letter that recited the two rules and detailed the

factual basis for his termination. The firefighter appealed, and the Shelby County Civil

Service Merit Board upheld the termination in a written decision that stated the facts and

reasons supporting the termination. The trial court affirmed the Board’s decision. The

Court of Appeals reversed, finding that the firefighter did not receive adequate notice of

the reasons for his termination. We hold that the Shelby County Fire Department

provided the firefighter with sufficient notice to satisfy the requirements of due process.

We reverse the decision of the Court of Appeals and remand for consideration of

pretermitted issues.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

reversed; Case remanded to the Court of Appeals

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Megan J. Smith and E. Lee Whitwell, Memphis, Tennessee, for the appellant, Shelby

County Civil Service Merit Board.

Andrew C. Clarke, Memphis, Tennessee, for the appellee, Paul Zachary Moss.

OPINION

I.

On November 1, 2013, Paul Zachary Moss, while off duty from his job as a

firefighter with the Shelby County Fire Department, went to a political rally at his wife’s

request. Police arrested Mr. Moss at the rally after he argued and scuffled with Thomas

Mason Ezzell, Jr. and Earl N. Mayfield, Jr. A grand jury indicted Mr. Moss on two counts

of aggravated assault. On February 24, 2015, the Shelby County Criminal Court accepted

Mr. Moss’s Alford guilty plea1 to one count of aggravated assault arising out of the

altercation involving Mr. Ezzell and dismissed the count involving Mr. Mayfield. The

Criminal Court placed Mr. Moss on judicial diversion.2

Employment Termination

On March 2, 2015, Fire Department Deputy Chief Dale H. Burress gave Mr. Moss

a written Loudermill3 notice informing him of the possibility of major disciplinary action,

including termination, because Mr. Moss had violated:

I: RR-0164005: General Rules of Conduct; Page 1, Line 5 (E) states:

Disciplinary Action, including discharge, may be taken for, but shall not be

limited to the following causes: (e) That the employee has been convicted

of a felony.

II. AD-0807001: Notification of Arrest; Page 1 (last two sentences

state): Disciplinary action may be taken against an employee, as a result of

evidence presented, that is in violation of Shelby County Policies,

1

In an Alford or best interest plea, a defendant enters a guilty plea and concedes that the

prosecutor’s evidence would likely result in a guilty verdict but the defendant does not admit to

committing the criminal act. North Carolina v. Alford, 400 U.S. 25, 37 (1970).

2

If a qualified defendant complies with all of the conditions of diversion, including completing

the required probationary period without violating a condition of probation, the trial court will dismiss the

diverted charges. The defendant can then request that the charges be expunged from the public record.

Tenn. Code Ann. § 40-35-313 (2014).

3

In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the United States

Supreme Court held that public employees, who may be fired only for cause, have a right to notice and an

opportunity to respond to charges against them. Under the Shelby County Civil Service Merit Act of

1971, Mr. Moss was a classified Shelby County employee and could be terminated only for just cause.

See 1971 Tenn. Priv. Acts, ch. 110.

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procedures or regulations. Such disciplinary action may be separate and

apart from pending or final court decisions.

The notice advised Mr. Moss that he could meet with Deputy Chief Burress on March 30,

2015, to present, orally or in writing, any reasons why discipline should not be imposed.

On March 30, 2015, Fire Department Chief Alvin D. Benson and Deputy Chief

Burress met with Mr. Moss in what is known as a Loudermill hearing. They asked Mr.

Moss several questions about the November 2013 altercation. Mr. Moss told them that

Mr. Ezzell confronted him first, but acknowledged that after Mr. Ezzell began to walk

away, Mr. Moss attempted to continue the conversation. Mr. Moss admitted that he

pointed his gun at Mr. Ezzell and Mr. Mayfield during the physical struggle that

followed, but denied that he had been drinking. Chief Benson and Deputy Chief Burress

also asked Mr. Moss about other instances involving alcohol, weapons, or assaults that

required police involvement. Mr. Moss admitted that the police had arrested him before

for possession of a firearm, but denied that alcohol had been involved. Mr. Moss also

denied that he had assaulted a woman. But police records showed that in March 2011,

police arrested Mr. Moss on charges of public intoxication and possession of a firearm

while under the influence of alcohol. Police records also showed that in October 2012, a

police officer responded to a domestic violence call during which Mrs. Moss stated that

Mr. Moss had assaulted her.

By letter dated March 31, 2015, Chief Benson notified Mr. Moss that his

employment was terminated. The letter began by detailing Mr. Moss’s conduct during the

November 2013 political rally, his arrest, and his guilty plea. The letter then restated the

two charges in the Loudermill notice:

I. RR-0164005: General Rules of Conduct; Page 1, Line 5 (e):

Disciplinary action, including discharge, may be taken for, but shall

not be limited to the following causes: (e) The employee has been

convicted of a felony.

II. AD-0807001: Notification of Arrest; Page 1 (In part): Disciplinary

action may be taken against an employee, as a result of evidence

presented, that is in violation of Shelby County Policies, procedures

or regulations. Such disciplinary action may be separate and apart

from pending or final court decisions.

Next, the letter described Mr. Moss’s “vague and in some cases deceptive and/or untrue”

responses about the November 2013 altercation during the Loudermill hearing, including

that:

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 Mr. Moss claimed that he only intended to escort his wife from the rally,

but Mr. Moss “confronted protesters, engaged in a fight, and attempted to

leave” without his wife;

 Mr. Moss denied that he “intended to personally settle the disturbance,” but

he was confrontational and his actions indicated extremely aggressive

behavior and “hot-temperedness”;

 Mr. Moss denied he had been drinking alcohol on the day of the altercation

but told Deputy Chief Burress otherwise. Also, witnesses testified that Mr.

Moss appeared to be “under the influence of alcohol and out of control”;

 Mr. Moss denied confronting an upset woman at the rally but admitted in a

written statement that he approached the woman to try to calm her;

 Mr. Moss denied showing aggression toward “the man with the [former

President Barack] Obama mask” but followed him, lunged at him, and

ripped his shirt;

 Mr. Moss admitted to a previous arrest for possession of a gun without a

permit but denied the police report account that alcohol was involved; and

 Mr. Moss denied being involved in a previous incident in which police

responded to a call about Mr. Moss allegedly assaulting his wife.

Chief Benson expressed his conclusion that Mr. Moss was the primary aggressor in the

altercation, had been drinking, had a firearm, and was “emboldened.” He described Mr.

Moss’s conduct as irresponsible, careless, and reckless. In addition, Mr. Moss’s conduct

jeopardized the lives of “two aging decorated military veterans [and] the lives of

everyone at the scene.” The letter concluded by stating: “[c]onsidering the elements of

this case and the preponderance of the evidence,” Chief Benson terminated Mr. Moss’s

employment for violating the Fire Department’s standards of personal conduct and

behavior.

Administrative Review

Mr. Moss appealed his termination to the Shelby County Civil Service Merit

Board. Testifying at the hearing before the Board were Mr. Mayfield, Chief Benson,

Deputy Chief Burress, Mr. Moss, and Kenneth W. Brashier.

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Mr. Mayfield testified that on November 1, 2013, he and a group of six to eight

acquaintances were displaying American flags and an anti-Obama banner from an

overpass over I-240 in Memphis during a political rally.4 Mr. Ezzell wore an “Obama”

mask during the rally. After the event, Mr. Moss approached the rally participants in a

parking lot, yelling at them, and appeared to be under the influence of alcohol or drugs.

Mr. Moss demanded to know who was wearing the mask. According to Mr. Mayfield,

Mr. Ezzell identified himself as wearing the mask and listened to Mr. Moss for a short

time before telling Mr. Moss that he would not listen anymore. Mr. Mayfield explained

that after seeing Mr. Moss pounce on Mr. Ezzell, Mr. Mayfield came up behind Mr. Moss

and grabbed his head and neck and pulled him to the ground. According to Mr. Mayfield,

Mr. Moss pulled a gun from his pocket, pointed it at Mr. Mayfield’s head, and threatened

to kill him. When Mr. Mayfield let Mr. Moss go, Mr. Moss walked away toward his

vehicle. Police arrested Mr. Moss at the scene. Mr. Mayfield gave a written statement at

the police station about the altercation.

Chief Benson testified that he provides general oversight at the Fire Department,

including supervision of instruction and administration of resources. Chief Benson, who

conducted Mr. Moss’s Loudermill hearing, concluded that based on a preponderance of

the evidence, Mr. Moss was the primary aggressor in the November 2013 altercation. In

addition, he found that Mr. Moss threatened to use a firearm and was under the influence

of alcohol. Chief Benson explained that, during a Loudermill investigation, the Fire

Department looks at prior behaviors of an employee to assess credibility. He learned from

the investigation that police had charged Mr. Moss in 2011 with public intoxication and

possession of a firearm while under the influence of alcohol. He also learned that in 2012,

Mr. Moss had been involved in a domestic assault incident. The Fire Department had no

record of Mr. Moss reporting either incident to his superiors. Counsel for Mr. Moss

objected to consideration by the Board of any facts unrelated to the two charges stated in

the Loudermill notice, but the Board did not rule on the objection.

Chief Benson explained that firefighters are held to a higher standard than

members of the public. The public trusts firefighters to go into their homes, and

firefighters cannot afford to jeopardize that trust. Thus, it is a terminable offense for a

firefighter to be under the influence of alcohol, to have a weapon, and to “use” the

weapon on a citizen.5 Chief Benson reiterated that he gives weight to an employee’s prior

4

These individuals were apparently expressing their opposition to President Barack Obama.

5

The Fire Department’s “General Rules Governing Conduct” provide that the Fire Department

may impose discipline, including termination, when an employee “has been offensive in his conduct

toward . . . the public.” These general rules of conduct also require employees to exhibit courtesy in their

interactions with the public and “avoid harsh, violent, profane and insulting language and manners.”

Failure to comply with this requirement constitutes “gross insubordination.”

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encounters with the police to assess the credibility of the allegations. He agreed that Mr.

Moss’s Alford guilty plea did not constitute a felony conviction in the legal sense, but for

administrative purposes, the plea fell under the administrative charge of a felony

conviction. Chief Benson acknowledged that Mr. Moss informed the Fire Department of

his November 1, 2013 arrest, but Chief Benson did not learn that Mr. Moss had not

reported the 2011 and 2012 incidents until after the issuance of the Loudermill notice.

Deputy Chief Burress testified that he did most of the investigation into Mr.

Moss’s conduct. According to the findings from the Loudermill hearing, Mr. Moss had

pleaded guilty to a felony charge and been granted diversion. Under Shelby County

government rules, a firefighter may not continue his employment after pleading guilty to

a felony. Deputy Chief Burress also stated that Mr. Moss’s untruthful answers to

questions during the Loudermill hearing about the 2011 and 2012 incidents factored into

the decision to terminate Mr. Moss’s employment.6 The Fire Department had no records

showing that Mr. Moss had notified his superiors of the 2011 and 2012 incidents. Deputy

Chief Burress acknowledged that Mr. Moss had good evaluations and no previous

disciplinary actions other than some issues with attendance. Deputy Chief Burress agreed

that the two violations stated in the Loudermill notice related to the November 2013

altercation.

Mr. Brashier testified that he represented Mr. Moss in the aggravated assault case

arising from the November 2013 altercation. The Fire Department allowed Mr. Brashier

to observe, but not participate in, the Loudermill hearing. Before the Loudermill hearing,

Mr. Brashier sent a letter to the Fire Department explaining that there is no conviction

when a defendant, like Mr. Moss, enters an Alford guilty plea and is granted judicial

diversion. He enclosed with the letter a Tennessee Attorney General opinion supporting

his position.

Mr. Moss testified that he began working as a firefighter with the Fire Department

in October 2007, after about five years with the Memphis Fire Department. Mr. Moss

explained that after his 2011 arrest for public intoxication and possession of a firearm, he

reported the arrest to his superiors, explaining that he had been arrested after a

sleepwalking incident caused by taking prescribed medication. Mr. Moss maintained that

no alcohol was involved, that all charges were dismissed, and that the Fire Department

brought no disciplinary charges against him. He admitted he had no documentation

showing that the meeting with his superiors took place and that he had no permit for the

firearm he was carrying. As to the 2012 domestic violence incident, Mr. Moss said he

6

The Fire Department’s general rules of conduct state that “[e]mployees shall not misrepresent or

falsify any matter verbally or in writing” and that refusal “to give complete and accurate information shall

be grounds for disciplinary actions.” The rules that the Fire Department asserts Mr. Moss violated apply

to on-duty and off-duty conduct.

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was not present when the police responded to his wife’s call and did not know there was

a police report about the call.

Mr. Moss then explained that on November 1, 2013, he was at home when his

wife called and asked him to meet her at a political rally because she was feeling

threatened. Mr. Moss denied consuming alcohol that day. He stated that when he arrived

at the event, he approached a woman on the street who told him she was angry because

white men were wearing “black-men” masks. The police arrived moments later, and the

woman went to talk to the police. Mr. Moss then spoke with a former coworker, who told

him someone had mentioned doing a “drive-by” shooting. Mr. Moss went to a parking lot

to speak to the event participants and to ask his wife why she was at the rally with the

men wearing “black-men” masks. According to Mr. Moss, Mr. Ezzell then walked over

and said he was the person wearing the “Obama” mask. Mr. Moss said he became upset

and yelled at Mr. Ezzell because Mr. Moss’s wife had been put in a dangerous situation.

He admitted saying to Mr. Ezzell, “Are you stupid?” He also acknowledged that he was

“trying to be heard,” but denied swinging at, grabbing, or punching Mr. Ezzell. Mr. Moss

explained that Mr. Mayfield hit him from behind and put him on the ground in a

headlock, and Mr. Ezzell tried to grab his arms. When Mr. Moss freed himself, he pulled

his gun because he felt he was in imminent danger. The police arrested Mr. Moss and

took him to the police station. After his release, Mr. Moss reported his arrest to his

battalion chief.

Mr. Moss said that he kept Deputy Chief Burress informed about the case and that

Deputy Chief Burress recommended that he take the diversion as “the best way to hold

on to [his] job.” Mr. Moss agreed that a higher standard applies to firefighters than to the

general public. He asserted that he did not make a “conscious choice” to take his gun to

the rally. Mr. Moss explained that because he always carries his gun, the gun was in his

pocket when his wife called asking him to meet her.

On November 20, 2015, the Board issued its decision upholding Mr. Moss’s

termination. Under a section of the decision titled “Applicable Policy/Code Provisions,”

the Board restated the two rules cited in the Loudermill notice and in the termination

letter sent to Mr. Moss. The Fire Department’s position, as summarized by the Board,

was that Mr. Moss was fired because, while under the influence of alcohol, he started a

fight with two individuals in a crowd of protesters, pointed a gun at their heads, and

threatened to kill them. The Board stated that Mr. Moss’s position was that the case was

about the two charges in the Loudermill notice—conviction of a felony and failure to

notify the Fire Department of an arrest. Mr. Moss asserted that the facts did not support

these charges because his Alford guilty plea and diversion did not constitute a felony

conviction, and he notified the Fire Department within hours of his arrest. Based on the

testimony of witnesses and exhibits entered into the record, the Board found that:

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 The Fire Department had met its burden of proof for terminating Mr. Moss for

cause;

 Mr. Moss was untruthful during the Loudermill hearing and exhibited conduct

unbecoming of a Shelby County firefighter or Shelby County employee while off

duty; and

 Even though Mr. Moss was granted judicial diversion, his conduct during the

November 2013 altercation was “an egregious violation of the General Rules of

Conduct” that “reflected adversely on all firefighters.”

Trial Court Review

Mr. Moss filed a writ of certiorari in the Shelby County Chancery Court seeking

judicial review of the Board’s decision. Mr. Moss asserted that his termination violated

his procedural due process rights because Mr. Moss did not receive adequate notice of the

charges against him before his Loudermill hearing; Mr. Ezzell did not attend the

Loudermill hearing even though he was under subpoena; the Board did not allow counsel

for Mr. Moss to exceed the scope of direct examination when cross-examining Deputy

Chief Burress; and a Board member laughed when Mr. Mayfield asked counsel for Mr.

Moss if he was “hearing impaired.”7 Mr. Moss also argued that the Board’s decision was

unsupported by substantial and material evidence because the evidence presented at the

Loudermill hearing did not establish the two charges specified in the Loudermill notice.

He also contended that the Board’s decision was arbitrary and capricious because it was

based on reasons not stated in the Loudermill notice.

The trial court found no merit to Mr. Moss’s evidentiary arguments and ruled that

taking the pre-termination and post-termination proceedings together, Mr. Moss had

adequate opportunity to challenge the reasons for his termination and thus the

requirements of due process were satisfied. The trial court noted that Mr. Moss had

received a letter after the Loudermill hearing “that set out in detail the basis for his

termination, which included the November 1, 2013 incident, and his untruthful answers

during the hearing itself.” Last, the trial court found that substantial and material

evidence supported the Board’s decision, including the testimony of multiple witnesses

who confirmed Mr. Moss had violated applicable policies. Thus, the trial court affirmed

the Board’s decision.

7

During Mr. Mayfield’s cross-examination, counsel for Mr. Moss asked repeatedly whether he

had seen Mr. Moss speaking with his wife. After Mr. Mayfield had responded several times that he had

not seen them talking, Mr. Mayfield asked Mr. Moss’s counsel if he was “hearing impaired.” Counsel for

Mr. Moss then asked that the record reflect that one of the Board members “laughed when a witness used

derogatory terms towards an attorney.”

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Court of Appeals Review

Mr. Moss appealed to the Court of Appeals, contending that the Fire Department

violated his due process rights by failing to give him adequate notice of the charges

against him and that the Board made many incorrect evidentiary rulings. He also argued

that the Board’s decision was arbitrary and unsupported by substantial and material

evidence.

The Court of Appeals held that Mr. Moss’s due process rights were violated based

on an inadequate notice of the charges against him. Moss v. Shelby Cnty. Civ. Serv. Merit

Bd., No. W2017-01813-COA-R3-CV, 2018 WL 4913829, at *5 (Tenn. Ct. App. Oct. 10,

2018), perm. app. granted (Tenn. Feb. 25, 2019). The Court of Appeals rejected the

Board’s contention that Mr. Moss received notice of charges not stated in the Loudermill

notice—his conduct during the November 2013 altercation and untruthfulness during the

Loudermill hearing—through the termination letter. The Court of Appeals acknowledged

that the Fire Department detailed Mr. Moss’s conduct in the termination letter and in the

Board’s decision but emphasized that those documents did not “specifically reference an

applicable charge” other than the two charges in the Loudermill notice. To the extent that

the Board upheld Mr. Moss’s termination on grounds other than those two charges, the

Court of Appeals held that Mr. Moss’s due process rights were violated. Pretermitting all

other issues, the Court of Appeals reversed and remanded to the trial court with

instructions to order the Board to reinstate Mr. Moss to his position with the Fire

Department with benefits and back pay. Id.

We granted the Board’s application for permission to appeal.

II.

Standard of Review

We review a civil service board decision upholding the termination of a civil

service employee under the standards for judicial review set forth in the Tennessee

Uniform Administrative Procedures Act, Tennessee Code Annotated section 4-5-322. See

Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256, 263 (Tenn. 2009) (citing Tenn.

Code Ann. § 27-9-114(b)(1)). Under section 4-5-322, a reviewing court

may affirm the decision of the agency or remand the case for further

proceedings. The court may reverse or modify the decision if the rights of

the petitioner have been prejudiced because the administrative findings,

inferences, conclusions or decisions are:

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(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; or

(5) (A) Unsupported by evidence that is both substantial and material in the

light of the entire record.

(B) In determining the substantiality of evidence, the court shall take into

account whatever in the record fairly detracts from its weight, but the court

shall not substitute its judgment for that of the agency as to the weight of

the evidence on questions of fact.

Tenn. Code Ann. § 4-5-322(h) (2011). The reviewing court may reverse, remand, or

modify a civil service board decision only for errors that affect the merits of the decision.

Id. § 4-5-322(i).

Procedural Due Process – Notice

Under the Fourteenth Amendment to the United States Constitution, no state may

“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. This Court has held that Article I, section 8, of the Tennessee

Constitution provides similar protections. Lynch v. City of Jellico, 205 S.W.3d 384, 391

(Tenn. 2006) (citing Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 711 n.4 (Tenn.

2003)) (recognizing that Article I, section 8 of the Tennessee Constitution “is

synonymous with the due process provisions of the federal constitution”). The parties do

not dispute that Mr. Moss had a property interest in continued employment with the Fire

Department and was entitled to due process. See Loudermill, 470 U.S. at 538.

The most fundamental element of due process is “the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[N]otice and

opportunity for [a] hearing appropriate to the nature of the case” must precede the

“deprivation of life, liberty or property.” Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306, 313 (1950). Notice must be “reasonably calculated, under all the

circumstances, to apprise interested parties” of the claims against them. Id. at 314

(citations omitted). Due process requires notice to give affected individuals an

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opportunity for adequate preparation before an impending hearing. Memphis Light, Gas

& Water Div. v. Craft, 436 U.S. 1, 14 (1978).

Under the standard set by Loudermill, this Court reviews pre-termination and

post-termination procedures “in tandem” to determine whether the public employer

satisfied the requirements of due process. See Bailey v. Blount Cnty. Bd. of Educ., 303

S.W.3d 216, 231–32 (Tenn. 2010) (citing Carter v. W. Reserve Psychiatric Habilitation

Ctr., 767 F.2d 270, 273 (6th Cir. 1985); Case v. Shelby Cnty. Civil Serv. Merit Bd., 98

S.W.3d 167, 173 (Tenn. Ct. App. 2002)). “Elaborate procedures at one stage may

compensate for deficiencies at other stages.” Phillips v. State Bd. of Regents of State

Univ. & Cmty. Coll. Sys. of Tenn., 863 S.W.2d 45, 50 (Tenn. 1993) (citing Bignall v. N.

Idaho Coll., 538 F.2d 243, 246 (9th Cir. 1976)). The question before us is whether Mr.

Moss received adequate notice from the pre-termination and post-termination procedures

of the grounds on which the Board upheld the Fire Department’s decision to terminate his

employment.

The Board argues that the March 31, 2015 termination letter from Chief Benson

gave Mr. Moss adequate notice of the grounds for this termination. The Board asserts that

questions asked by Chief Benson and Deputy Chief Burress at the Loudermill hearing put

Mr. Moss on notice that the Fire Department was considering his conduct during the

November 2013 altercation as a ground for disciplinary action. Mr. Moss responds that

he was not given proper notice of the charges on which the Board upheld his

termination—his conduct during the November 2013 altercation and alleged dishonesty

during the Loudermill hearing. He stresses that both the Loudermill notice and the

termination letter identified only the violation of two rules specifically dealing with being

convicted of a felony and failing to report an arrest.

Two documents in the record assist in our determination about whether Mr. Moss

received adequate notice of the reasons for his termination before the October 20, 2015

hearing before the Board. The March 2, 2015 Loudermill notice from Deputy Chief

Burress, which Mr. Moss received less than a week after his Alford guilty plea to

aggravated assault, advised him that the Fire Department was considering major

disciplinary action against him based on violation of two rules addressing a felony

conviction and the failure to notify the Fire Department of an arrest. The March 31, 2015

termination letter from Chief Benson listed these two rules and a detailed account of the

events surrounding the November 2013 altercation that led to Mr. Moss’s indictment for

aggravated assault and the Alford guilty plea. The letter asserted that Mr. Moss was

“deceptive and/or untrue” during the Loudermill hearing in responding to questions about

the November 2013 altercation and previous instances “involving alcohol, weapons

and/or assaults.” The letter then described specific examples of dishonest responses given

by Mr. Moss. Chief Benson included in the letter his conclusions that Mr. Moss’s

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“behavior was irresponsible, careless and reckless,” that he had “brought dishonor” to the

Fire Department, and that he was being terminated “for violating the standards of

personal conduct and behavior” of Fire Department employees.

Mr. Moss places undue emphasis on the contents of the Loudermill notice. In

determining whether Mr. Moss received proper notice of the reasons for his dismissal, we

must consider both the pre- and post-termination procedures afforded to him. See

Phillips, 863 S.W.2d at 50 (stating that “the component parts of the process are designed

to reach a substantively correct result”). Here, the pre-termination Loudermill notice

stated that Mr. Moss had violated only the two rules dealing with a felony conviction and

notification of arrest. However, at the Loudermill hearing, Chief Benson and Deputy

Chief Burress did not limit their questions to facts about the alleged violation of these

two rules. Both men questioned Mr. Moss specifically about his conduct before, during,

and after the altercation at the rally. They also asked him about prior incidents involving

alcohol, weapons, or assaults. Chief Benson’s termination letter, issued the next day,

emphasized Mr. Moss’s behavior during the November 2013 altercation and his dishonest

responses during the Loudermill hearing as “elements” he considered in terminating Mr.

Moss’s employment. The letter not only identified these grounds, but also elaborated on

them by describing specific examples of objectionable conduct. These examples stated

the factual basis for Chief Benson’s conclusion that Mr. Moss had violated the standards

of personal conduct for Fire Department employees. Mr. Moss received this letter

explaining the reasons for his termination nearly seven months before the November 1,

2013 hearing before the Board.

Mr. Moss’s tactical decisions before and during the hearing before the Board show

that he intended to challenge Chief Benson’s conclusions about his conduct during the

November 2013 altercation. Mr. Moss subpoenaed Mr. Ezzell and Mr. Mayfield, the

other men involved in the altercation, to testify at the hearing. Mr. Ezzell and Mr.

Mayfield could offer little or no evidence about whether Mr. Moss had been convicted of

a felony or had notified the Fire Department of his arrest. Instead, these subpoenaed

witnesses had firsthand knowledge about the political rally and the altercation. At the

hearing, counsel for Mr. Moss questioned Mr. Mayfield about these facts. When Mr.

Ezell did not appear at the hearing, Mr. Moss’s counsel objected, stating: “[W]e are

charged with a witness who has accused Mr. Moss of doing certain things, and filed

criminal charges and did certain things, and that witness hasn’t appeared.” (Emphasis

added). In addition, Mr. Moss’s counsel asked Chief Benson and Deputy Chief Burress

about their knowledge of Mr. Moss’s conduct during the altercation.

Mr. Moss also came to the hearing prepared to dispute his alleged dishonesty with

respect to past incidents involving alcohol, weapons, or assaults. Mr. Moss testified at

length about his 2011 arrest on charges of public intoxication and possession of a firearm

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while under the influence of alcohol, offering the Board an alternative explanation to

what the police report reflected. As for the 2012 domestic violence incident, Mr. Moss

told the Board that he was not present when the police showed up and was unaware the

police had taken a report. Also, Mr. Moss’s counsel questioned Chief Benson about his

knowledge of the 2011 and 2012 incidents, emphasizing that Chief Benson was not with

the Fire Department at the time.

Based on the pre-termination Loudermill notice, the questions during the

Loudermill hearing, and the contents of the termination letter, we conclude that Mr. Moss

had sufficient notice that his conduct during the November 2013 altercation and his

answers about the 2011 and 2012 incidents were reasons for his termination. Mr. Moss

received adequate notice of the factual allegations against him and had an opportunity to

prepare for his hearing before the Board. His contention that the Fire Department violated

his due process rights lacks merit.

In holding that Mr. Moss did not receive sufficient notice of the charges against

him, the Court of Appeals found that the termination letter did “not specifically reference

an applicable charge other than those highlighted in the Loudermill notice.” Moss, 2018

WL 4913829, at *5. The Court of Appeals reasoned that because the Board upheld Mr.

Moss’s termination on “grounds other than the charges specifically identified,” the Fire

Department violated Mr. Moss’s due process rights. Id. We respectfully disagree. We

cannot consider the Loudermill notice in isolation, but must also consider the

pre-termination and post-termination information provided to Mr. Moss. The termination

letter fully explained the reasons for Mr. Moss’s termination and gave him more notice

than a mere recitation of technical charges could have afforded him. The termination

letter first asserted that Mr. Moss’s “irresponsible, careless and reckless” behavior during

the November 2013 altercation and his dishonesty during the Loudermill hearing violated

the Fire Department’s standards of personal conduct. The assertions were then supported

with multiple specific examples, providing Mr. Moss with notice of the specific factual

allegations that Chief Benson considered in deciding to terminate his employment “for

violating the standards of personal conduct and behavior of Shelby County Fire

Department employees.” In addition, the actions of Mr. Moss and his counsel at the

hearing before the Board conflict with the claim that Mr. Moss did not know about the

allegations against him. Thus, the Court of Appeals’ conclusion that due process notice

requirements may be satisfied only when pre-termination notices enumerate all applicable

charges that may serve as grounds for an employee’s termination elevates form over

substance.

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Remaining Issues

Mr. Moss also asserts that he was denied due process because he did not have a

chance to confront Mr. Ezzell, who did not appear at the hearing; the Board improperly

limited the scope of his cross-examination of Mr. Mayfield; and the Board denied him the

chance to present evidence of disparate discipline. He also asserts that the Board’s

decision was arbitrary and capricious and not based on substantial and material evidence.

Mr. Moss raised these issues below, but the Court of Appeals did not rule on them.

In light of our ruling, we remand this case to the Court of Appeals for consideration of

the issues pretermitted by its decision.

III.

We reverse the judgment of the Court of Appeals and remand this case to the

Court of Appeals for consideration of pretermitted issues. Costs of this appeal are taxed

to Paul Zachary Moss, for which execution may issue if necessary.

_________________________________

SHARON G. LEE, JUSTICE

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