Joshua Keller v. Janice Casteel

06/12/2020

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

November 19, 2019 Session Heard at Kingsport1

JOSHUA KELLER v. JANICE CASTEEL ET AL.

Appeal by Permission from the Court of Appeals

Chancery Court for Bradley County

No. 2012-CV-117 Jerri Bryant, Chancellor

___________________________________

No. E2017-01020-SC-R11-CV

___________________________________

We granted permission to appeal in this case to address when an employee

handbook may create a property interest entitled to due process protection. After the

petitioner municipal firefighter pled guilty to a criminal charge, his employment was

terminated. The firefighter filed a complaint for judicial review of the termination,

asserting a due process claim based on the municipality’s personnel manual. The trial

court and the Court of Appeals both held that the personnel manual gave the firefighter a

property interest entitled to due process protection. We reverse that holding. In

Tennessee, employment is presumed to be at-will. Employers, including governmental

employers, may adopt policies and procedures to promote efficiencies and fair, consistent

treatment of employees, and may put those policies and procedures in employee manuals

or handbooks. In the absence of specific language showing the employer’s intent to be

contractually bound, such policies and procedures do not change employees’ at-will

status and do not create a constitutionally protectable property interest. In this case, the

municipality’s personnel manual included an explicit statement that the municipality did

not intend the procedures to be binding or constitute any type of contract. Such

disclaimers preclude any finding that the employer intended to be bound by the terms of

the employee handbook. Accordingly, we decline to hold that the employee handbook

converted the employee’s at-will employment into a property interest entitled to due

process protection.

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

Reversed and Judgment of the Chancery Court Is Affirmed for Different Reasons

1

We heard oral argument at Kingsport, Tennessee, as part of the Court’s S.C.A.L.E.S. (Supreme

Court Advancing Legal Education for Students) project.

HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK, SHARON G. LEE, and ROGER A. PAGE, JJ., joined.

Ronald D. Wells, Stacy Lynn Archer, and Philip Aaron Wells, Chattanooga, Tennessee,

for the appellants, Janice Casteel, City of Cleveland, Tennessee, and Steve Haun.

James R. McKoon, Chattanooga, Tennessee, and Sarah M. Block, Washington, D.C., for

the appellee, Joshua Keller.

John T. Batson, Jr., Emily C. Taylor, and Brian R. Bibb, Knoxville, Tennessee, for

amicus curiae Public Entity Partners, and Melanie E. Davis, Maryville, Tennessee, for

amicus curiae Tennessee Municipal Attorneys Association.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner-Appellee Joshua Keller was hired by Respondent-Appellant City of

Cleveland (“City”) as a firefighter in December 2008.2 In April 2009, while Mr. Keller

was still under his 6-month probationary period, he was arrested and convicted of driving

under the influence while off duty. The City Fire Department allowed Mr. Keller to

remain employed but extended his probation for twelve months. It also asked him to

undergo counseling for alcohol abuse.

No further incidents occurred until a little over two years later. On January 22,

2012, Mr. Keller had some friends at his home. Everyone, including Mr. Keller, was

drinking alcohol. At some point, a fight broke out. Mr. Keller retrieved a firearm from

his bedroom and shot it more than once; no one was injured by the shots. The report by

the police officer who investigated the episode described Mr. Keller as “highly

intoxicated.”

2

We recite the facts pertinent to this appeal. For a more complete recitation of the facts and

testimony, please see the Court of Appeals’ thorough recitation. See Keller v. Casteel, No. E2017-01020-

COA-R3-CV, 2019 WL 354867, at *1–7 (Tenn. Ct. App. Jan. 28, 2019), perm. app. granted (June 19,

2019).

-2-

As a result of this incident, Mr. Keller was charged with reckless endangerment

and two counts of aggravated assault. Two days later, City Fire Chief Steve Haun sent

Mr. Keller a memo informing him that he was suspended without pay until the charges

were resolved, at which time the City would make a decision about his employment.

On January 31, 2012, to resolve the charges against him, Mr. Keller pled guilty to

simple assault. Mr. Keller informed Chief Haun of the resolution of the charges. Chief

Haun told Mr. Keller he would let him know about his employment status.

Ultimately, Chief Haun decided to recommend termination of Mr. Keller’s

employment. On February 10, 2012, Chief Haun gave Mr. Keller a copy of Chief Haun’s

memo to the City Manager documenting his decision. The memo recounted Mr. Keller’s

work history, including the arrests and convictions, and stated:

I have to make the decision that is best for our Department as a whole.

I cannot, as Fire Chief, condone this behavior from a firefighter of

the department. I have to think of the precedent that will set if I allow [Mr.

Keller] to return. I would have to allow this type of behavior from the rest

of the department as well as future employees and I am not prepared to

lower our standards as a department to do what is easy. I feel [Mr. Keller]

was shown compassion in 2009 and was allowed to continue to work for

the City of Cleveland.

I still have compassion for [Mr. Keller] and what dismissal will

mean for his life. But I keep coming back to the realization that [Mr.

Keller] made every decision, as poor as they were, to put himself in this

position. Therefore, it is my recommendation of dismissal.

The City terminated Mr. Keller’s employment effective February 17, 2012.

Mr. Keller sought an appeal pursuant to policies set forth in the City’s personnel

manual. The policies allowed employees to request an initial appeal to the City

Manager, with judicial review by the local chancery court.3

3

As discussed in more detail below, the City’s personnel manual outlined the following appeal

process:

-3-

The City Manager conducted a hearing as provided in the manual. Afterward,

she sent Mr. Keller a letter notifying him of her decision to uphold the termination.

In May 2012, Mr. Keller filed a petition for a writ of certiorari with the Bradley

County Chancery Court. It named the City and the City Manager as defendants.4 The

petition asserted the City violated Mr. Keller’s right to due process under both the federal

and Tennessee Constitutions by, among other things, having the administrative appeal of

the decision to terminate Mr. Keller’s employment heard by the City Manager. It

claimed policies and procedures applied to the termination of his employment were

arbitrary and capricious and the City did not have substantial and material evidence to

support the termination. The petition asserted a violation of the Uniform Administrative

Procedures Act, Tenn. Code Ann. §§ 4-5-101 (2015) et seq., and of his due process rights

under Tennessee Code Annotated §§ 27-8-101 et seq.5 and Tennessee Code Annotated §§

27-9-101 et seq.6

Mr. Keller later amended his petition to add federal claims. As a result, the City

removed the case to the United States District Court for the Eastern District of Tennessee.

Any City employee reprimanded, suspended, demoted, or dismissed has the right to

submit a request in writing to the City Manager to have the action reviewed. An

employee who chooses to appeal to the City Manager must submit the request for an

appeal within two (2) working days of receipt of notification of the disciplinary action,

and must state his/her intent to have representation, and to name the representative(s).

The request must be in writing. The City Manager shall schedule a hearing within ten

(10) working days of the receipt of the employee’s written request for appeal. The action

of the City Manager shall be final and binding on all parties involved unless appealed to

Chancery Court by the employee. However, if the City Manager determines that

procedures established by law were not followed by the appropriate Supervisor and/or

Department Head, the decision of the City Manager shall be binding on all parties

involved unless appealed to Chancery Court by the employee or the City. Any employee

reprimanded, suspended, demoted[,] or dismissed must timely request an appeal and

complete the appeals process prior to filing an action in Chancery Court.

4

Mr. Keller later amended his petition to add Chief Haun as a defendant. Unless otherwise

specified, this opinion will refer to all Defendant-Appellants collectively as the City.

5

Tennessee Code Annotated § 27-8-101 and the provisions immediately following it codify the

common-law writ of certiorari, which is itself protected by the Tennessee Constitution. See Tenn. Const.

art. VI, § 10.

6

Tennessee Code Annotated § 27-9-101 and the provisions immediately following it set forth the

process for review of actions taken by “any board or commission functioning under the laws of this state.”

-4-

The federal district court granted the City’s motion for summary judgment on Mr.

Keller’s federal claims. Keller v. City of Cleveland, No. 1:13-CV-91, 2014 WL 2809662,

at *1 (E.D. Tenn. June 20, 2014). As to the due process claim under the federal

Constitution, the district court explained that Mr. Keller had to show he was deprived of a

protected property interest. Id. at *2. To determine that question, the district court

looked to Tennessee law. Id. at *4.

The district court noted that, absent a contract, employment in Tennessee is

generally at will. Id. Mr. Keller asserted the City’s personnel regulations, contained in

the personnel manual, gave rise to a protected property interest. Id. at *4, 6. The district

court held specific disclaimers in the personnel manual prevented the City’s regulations

from being construed as creating a property interest or a binding contract. Id. at *6. With

no protected property interest in continued employment, Mr. Keller could show no

violation of his right to due process. Id. at *7. Consequently, the district court dismissed

Mr. Keller’s federal claims and remanded his state law claims to the Bradley County

Chancery Court (“trial court”).

In May 2015, several months after the federal court’s remand to state court, the

trial court granted partial summary judgment in favor of Mr. Keller on his due process

claim. It held the termination of his employment was based on inappropriate procedure

because it was based on evidence the City did not place in the record and because the

City Manager reviewed her own action. In contrast to the federal district court, the trial

court held that the City personnel manual constituted a contract and gave Mr. Keller a

right to appeal.

The May 2015 order did not resolve the issue of damages. In July 2016, the trial

court held an evidentiary hearing on damages. After the hearing, the trial court

determined that Mr. Keller “failed to mitigate his damages,” so it entered an order

dismissing his petition.

Mr. Keller filed a motion to alter or amend the judgment. The trial court granted

the motion, but not in a manner beneficial to Mr. Keller. For reasons not pertinent to this

appeal, the trial court decided to review the City’s original decision to terminate Mr.

Keller’s employment under Tennessee Code Annotated §§ 27-9-1017 et seq. and 4-5-

7

The statute provides that

-5-

322.8 It held first there was “material evidence in the record to support the original

decision of the City” and any errors did not affect the merits. As to damages, the trial

court concluded that, after his employment was terminated, Mr. Keller removed himself

from the job market and did not use reasonable efforts to pursue other employment. For

these reasons, the trial court again dismissed Mr. Keller’s amended petition.

Mr. Keller appealed to the Court of Appeals. Keller v. Casteel, No. E2017-01020-

COA-R3-CV, 2019 WL 354867 (Tenn. Ct. App. Jan. 28, 2019), perm. app. granted (June

19, 2019). The intermediate appellate court framed the issues as whether Mr. Keller was

entitled to judicial review of the termination of his employment and, if so, whether he

was entitled to damages as a result of the termination. Id. at *7.

To determine whether he was entitled to judicial review, the Court of Appeals

considered as a threshold matter whether Mr. Keller had a protected property interest in

Anyone who may be aggrieved by any final order or judgment of any board or

commission functioning under the laws of this state may have the order or judgment

reviewed by the courts, where not otherwise specifically provided, [by filing a petition of

certiorari with the circuit court consistent] in the manner provided by this chapter.

Tenn. Code Ann. § 27-9-101 to -103 (2017).

8

The statute provides, in the relevant part, that

(a)(1) A person who is aggrieved by a final decision in a contested case is entitled to

judicial

review under this chapter, which shall be the only available method of judicial review. . .

.

....

(h) The 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:

(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.

Tenn. Code Ann. § 4-5-322 (2015).

-6-

his employment with the City. Id. It quoted the provisions in the City personnel manual

on appeal of a termination decision to the City Manager and judicial review by the

chancery court. It then quoted the disclaimers in the personnel manual on which the City

relied. Id. The Court of Appeals’ conclusion aligned with the trial court’s analysis of

whether Mr. Keller had a protected property interest: “While the Manual did not

expressly provide a right to continued employment, it provided all employees with the

unequivocal right to an appeals process concerning said employment and further

provided a corresponding right to judicial review of such decisions.” Id.

As to whether Mr. Keller was entitled to damages, the Court of Appeals first

determined that any judicial review had to be through a common law writ of certiorari.

Id. at *8. It held: “Regardless of whether the City Manager acted with material evidence

in support of her decision, the procedure utilized was unlawful because the person who

made the termination decision also affirmed the same decision on appeal.” Id. It held

Mr. Keller was entitled to damages under Tennessee Code Annotated § 27-8-117 and

remanded the case to the trial court for a determination of damages. Id. at *8–9.

The City then sought permission to appeal to this Court, which we granted.

ISSUES ON APPEAL

Slightly reworded, the City and Mr. Keller both present the following issues for

review: (1) whether Mr. Keller had a property interest9 in his employment with the City

that entitled him to due process after the termination of his employment; (2) if so,

whether the procedures utilized by the City were unlawful; and (3) whether damages are

available as a remedy under a common law writ of certiorari.

ANALYSIS

The due process clause in the Fourteenth Amendment of the United States

Constitution guarantees that no State “shall . . . deprive any person of life, liberty, or

property, without due process of law.” U.S. Const., amend. XIV, § 1. The “law of the

9

The City also includes as an issue whether Mr. Keller had a liberty interest in his employment

with the City. In his statement of the issues, Mr. Keller refers to having a “liberty and/or property interest

in his employment,” but his brief to this Court includes no argument on a liberty interest. Under these

circumstances, Mr. Keller has waived the issue of whether he had a liberty interest in his employment

with the City. First Cmty. Bank, N.A. v. First Tenn. Bank, N.A., 489 S.W.3d 369, 401 (Tenn. 2015)

(citing Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012)). Consequently, we consider only whether

Mr. Keller had a protected property interest.

-7-

land clause” in the Tennessee Constitution provides that “no man shall be taken or

imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or

in any manner destroyed or deprived of his life, liberty or property, but by the judgment

of his peers or the law of the land.” Tenn. Const., art. I, § 8; Bailey v. Blount Cnty. Bd. of

Educ., 303 S.W.3d 216, 230 (Tenn. 2010). This clause in Tennessee’s Constitution

provides protections similar to those provided by the due process clause in the federal

Constitution. Bailey, 303 S.W.3d at 230 (citing Lynch v. City of Jellico, 205 S.W.3d 384,

391 (Tenn. 2006) (recognizing Tennessee’s “law of the land clause” is “synonymous with

the due process provisions of the federal constitution”). Both are “intended to secure the

individual from the arbitrary exercise of the powers of government.” Mortg. Elec.

Registration Sys., Inc. v. Ditto, 488 S.W.3d 265, 280 (Tenn. 2015) (quoting Daniels v.

Williams, 474 U.S. 327, 331 (1986)).

This Court has outlined the analysis for a procedural due process claim:

When a person asserts a procedural due process claim, the court must first

determine whether he or she has an interest entitled to due process

protection. If the court determines that the person has an interest that is

entitled to constitutional due process protection, then the court must

determine “what process is due.” Once the court determines minimum

procedural due process protections to which the person is entitled, the court

must finally determine whether the challenged procedures satisfy these

minimum requirements.

Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 731 (Tenn. 2012)

(citations omitted). To be entitled to due process protection, the interest shown must be

either a liberty interest or a property interest. Rowe v. Bd. of Educ., 938 S.W.2d 351, 354

(Tenn. 1996) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70

(1972)).

As noted above, Mr. Keller has waived any argument that he has a constitutionally

protected liberty interest in this case. Thus, the threshold consideration for Mr. Keller’s

procedural due process claim is whether he had a property interest that entitled him to

due process protection. Absent a protected property interest, there can be no due process

violation.

Not long ago, this Court discussed the type of property interest that may give rise

to due process protection:

-8-

The Fourteenth Amendment’s procedural protection of property safeguards

the security of interests that a person has already acquired in specific

benefits. Property interests protected by the Fourteenth Amendment are not

created by the Constitution, but rather they are created and their dimensions

are defined by existing rules or understandings that stem from an

independent source of state law.

To be entitled to procedural due process protection, a property

interest must be more than a “unilateral expectation” or an “abstract need or

desire.” It must be a “legitimate claim of entitlement” to a specific benefit.

The hallmark of property, the United States Supreme Court has

emphasized, is an individual entitlement grounded in state law which

cannot be removed except “for cause.” Once that characteristic is found,

the types of interests protected as “property” are varied and, as often as not,

intangible, relating “to the whole domain of social and economic fact.”

Tenn. Dep’t of Corr. v. Pressley, 528 S.W.3d 506, 513–14 (Tenn. 2017) (citations

omitted).

To determine whether Mr. Keller had a constitutionally protected property interest

in continued employment, we begin with the doctrine of employment at will. “The

employment-at-will doctrine is a bedrock of Tennessee common law.” Williams v. City

of Burns, 465 S.W.3d 96, 108 (Tenn. 2015) (citation omitted). In the absence of evidence

to the contrary, employees in Tennessee are presumed to be at-will. See Crews v.

Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 864 (Tenn. 2002) (citing Rose v. Tipton

County Pub. Works Dep’t, 953 S.W.2d 690, 691 (Tenn. Ct. App. 1997)). The

employment-at-will doctrine “is the fundamental principle controlling the relationship

between employers and employees.” Williams, 465 S.W.3d at 108 (quoting Mason v.

Seaton, 942 S.W.2d 470, 474 (Tenn. 1997)).

Under the employment-at-will doctrine, employment is for an indefinite period of

time and may generally be terminated by either the employer or the employee at any

time, for any reason, or for no reason at all. Id. (citations omitted); Crews, 78 S.W.3d at

857–58 (citations omitted); Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn. 1994)

(citations omitted). Put another way: “The long standing rule in this State is that an

employee-at-will may be discharged without breach of contract for good cause, bad cause

or no cause at all, without being thereby guilty of legal wrong.” Williams, 465 S.W.3d at

108 (quoting Harney v. Meadowbrook Nursing Ctr., 784 S.W.2d 921, 922 (Tenn. 1990)).

The employment-at-will doctrine “recognizes that employers need the freedom to make

-9-

their own business judgments without interference from the courts.” Id. (quoting Mason,

942 S.W.2d at 474). In the same way, employees have the right to refuse to work for a

person or organization. Crews, 78 S.W.3d at 858.

Against that background, we look at the parties’ arguments.10 The portion of the

City personnel manual on which Mr. Keller relies sets forth appeal procedures for City

employees who have been disciplined or dismissed from employment:

N. APPEALS PROCESS

Any City employee reprimanded, suspended, demoted, or dismissed

has the right to submit a request in writing to the City Manager to have the

action reviewed. An employee who chooses to appeal to the City Manager

must submit the request for an appeal within two (2) working days of

receipt of notification of the disciplinary action, and must state his/her

intent to have representation, and to name the representative(s). The

request must be in writing. The City Manager shall schedule a hearing

within ten (10) working days of the receipt of the employee’s written

request for appeal. The action of the City Manager shall be final and

binding on all parties involved unless appealed to Chancery Court by the

employee. However, if the City Manager determines that procedures

established by law were not followed by the appropriate Supervisor and/or

Department Head, the decision of the City Manager shall be binding on all

parties involved unless appealed to Chancery Court by the employee or the

City. Any employee reprimanded, suspended, demoted[,] or dismissed

must timely request an appeal and complete the appeals process prior to

filing an action in Chancery Court.

The City, in turn, relies on a provision in the personnel manual explaining the purpose of

the written policies and stating specific disclaimers:

A. PURPOSE AND OBJECTIVES

The purpose of these policies is to establish a high degree of

understanding, cooperation, efficiency, and unity among municipal

government employees which comes from a systematic application of good

10

The briefs filed by amici curiae Public Entity Partners and the Tennessee Municipal Attorneys

Association make arguments supportive of the City’s position.

- 10 -

procedure in personnel administration, and to provide uniform policies for

all employees, with all the benefits such a program insures. . . .

....

These policies nor any provisions herein are an employment contract

or any other type of contract. All employees are employed for an indefinite

term.

Mr. Keller does not—actually, cannot—point to language in the City personnel

manual indicating that he is anything other than an employee at will, so his brief to this

Court does not assert a property interest in “continued” employment. Mr. Keller does not

dispute that he was given substantially all of the procedures set forth in the City

personnel manual, so he does not ask the Court to require the City to afford him those

procedures. He posits instead that “Mr. Keller had a property interest in his employment

with the City . . . because the [City personnel manual], adopted by [the City’s] City

Council, created procedures which entitled him to due process.”11

Indeed, the Court of Appeals did not hold Mr. Keller had a protected property

interest in employment for a definite term; it stated: “While the Manual did not expressly

provide a right to continued employment, it provided all employees with the unequivocal

right to an appeals process concerning said employment and further provided a

corresponding right to judicial review of such decisions.” Keller, 2019 WL 354867, at

*7. Similarly, the trial court held the City personnel manual “operates as a contract

specifically creating a right to appeal.”

11

It is challenging, frankly, to pin down exactly what Mr. Keller claims a property interest in. In

some cases, for example, employees asserting a due process claim contend that certain policies or

procedures show they are not merely at-will employees, as where employees argue written policies

indicate they can only be dismissed for cause. In such cases, the petitioners generally contend they have a

right to continued employment. See, e.g., Pressley, 528 S.W.3d at 516; Brown v. City of Niota, 214 F.3d

718, 720 (6th Cir. 2000). In other cases, employees argue they have a protected property interest in the

procedures promulgated by the employer and petition the court to require the employer to give them those

procedures. See, e.g., Fitzgerald v. Hickman Cnty. Gov’t, No. M2017-00565-COA-R3-CV, 2018 WL

1634111, at *7 (Tenn. Ct. App. Apr. 4, 2018) (seeking a right to participate in the grievance process);

Williams v. City of Milan, No. 1:08-CV-01235, 2009 WL 989775, at *6 (W.D. Tenn. Apr. 8, 2009)

(asserting that the procedures for terminating an employee were not followed). Mr. Keller does neither.

Instead, somewhat perplexingly, he contends that he had a property interest “in his employment” because

of the City’s appeal procedures but those very procedures are unconstitutional so the City should have

used different ones.

- 11 -

We look, then, at whether Mr. Keller had any type of constitutionally protected

property interest arising out of the procedures in the City personnel manual. Our courts

have noted that, “[e]ven in the absence of a definite durational term, an employment

contract still may exist with regard to other terms of employment.”12 Rose, 953 S.W.2d

at 692 (citations omitted). In this vein, an employee handbook can become a part of an

employment contract. Id.; see also Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677, 688

(Tenn. Ct. App. 1999). However,

[i]n order to constitute a contract, . . . the handbook must contain specific

language showing the employer’s intent to be bound by the handbook’s

provisions. Unless an employee handbook contains such guarantees or

binding commitments, the handbook will not constitute an employment

contract. As stated by one court, in order for an employee handbook to be

considered part of an employment contract, the language used must be

phrased in binding terms, interpreted in the context of the entire handbook,

and read in conjunction with any other relevant material, such as an

employment application.

Rose, 953 S.W.2d at 692 (internal quotation marks omitted) (citations omitted). Thus,

there is “a high standard for establishing the existence of an employer’s specific intent to

be bound by the terms of an employee handbook.” Brown v. City of Niota, 214 F.3d 718,

721 (6th Cir. 2000) (interpreting Tennessee law).

In this case, to support his assertion of a protectable property interest, Mr. Keller

relies primarily on the existence of the City personnel manual and its inclusion of appeal

procedures for the discipline and dismissal of City employees. Neither the existence of

such procedures nor their inclusion in a personnel manual is sufficient by itself to create a

protectable property interest. Employers, including governmental employers, may adopt

12

Some federal courts, interpreting Tennessee law, have made general statements to the effect

that “an at-will employee who has a reasonable expectation that his or her employment will only be

terminated for cause, may acquire a property interest in continued employment.” England v. Andrews,

No. 2:05-0008, 2005 WL 2209542, at *7 (M.D. Tenn. Sept. 8, 2005); see also Gregory v. Hunt, 24 F.3d

781, 785 (6th Cir. 1994) (citing Chilingirian v. Boris, 882 F.2d 200, 203 (6th Cir. 1989)) (“An at-will

public employee does not have a property interest in continued employment unless it can be shown that

the employee had a reasonable expectation that termination would be only for good cause.”). This

statement is internally inconsistent; even if the employment does not have a durational term, if the

employer can only dismiss the employee for just cause, the employment is by definition not at-will.

Under employment at will, employment “may be terminated by either the employer or the employee at

any time, for any reason, or for no reason at all.” Williams, 465 S.W.3d at 108.

- 12 -

policies and procedures to promote efficiencies and fair, consistent treatment of

employees.13 Employers may choose to put those policies and procedures in an employee

manual or handbook. In the absence of specific language demonstrating the employer’s

intent to be contractually bound by the policies and procedures, such actions do not

change employees’ at-will status. Rose, 953 S.W.2d at 692 (employee handbook not a

contract unless it contains specific guarantees or binding language).

Mr. Keller points to language in the City procedures stating that a dismissed

employee “has the right to submit a request” for administrative review by the City

Manager, and if such review is granted, the City Manager’s decision “shall be final and

binding on all parties involved” unless it is appealed to the chancery court. In this case,

of course, Mr. Keller was granted the administrative review he requested, and the City

Manager upheld the termination of his employment. Mr. Keller argues that these

procedures, adopted by the City Council, gave him “a proprietary interest in public

employment.”14

13

To this point, as we have noted, the City personnel manual in this case stated that the policies

and procedures were included in order to “establish a high degree of understanding, cooperation,

efficiency, and unity among municipal government employees,” foster “a systematic application of good

procedure in personnel administration, and . . . provide uniform policies for all employees.”

14

In support, Mr. Keller cites Huddleston v. City of Murfreesboro, 635 S.W.2d 694 (Tenn. 1982),

in which the plaintiff city firefighter challenged the termination of his employment. The plaintiff in

Huddleston relied on city charter provisions allowing a terminated employee to appeal his dismissal to the

city council. Id. at 694-95. On appeal, this Court stated that it granted review “to determine whether the

Court of Appeals erred in directing that upon remand the trial court should determine the case in

accordance with T.C.A., § 27-911.” Id. at 695. In the course of addressing that issue, the Court

commented that the trial court had erred in holding the plaintiff “possessed no proprietary right in his

employment” and said the city charter provisions afforded “protection to the plaintiff from unreasonable

and unjustified dismissal from employment.” Id. The Court then issued its holding on the proper statute

to apply on remand. Id. at 696.

We note the Huddleston opinion did not even mention the term “due process.” Moreover, as

observed by the federal district court in dismissing Mr. Keller’s federal due process claims, “courts have

recognized that Huddleston is ‘inapposite’ when there is no “statute, ordinance or specific employment

contract creating [a proprietary] interest.” Keller, 2014 WL 2809662, at *5 (quoting Duncan v. City of

Oneida, 735 F.2d 998, 1001 (6th Cir. 1984)). Most important, Huddleston did not involve explicit

language that the municipality did not intend for the procedures to be binding or constitute any type of

contract, as discussed below. Overall, we find Huddleston unhelpful in this case.

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The language on which Mr. Keller relies, in and of itself, would be a dubious basis

for finding a constitutionally protected property interest. However, we do not interpret

this language in isolation. The appeal procedures in the City personnel manual must be

viewed “in the context of the entire handbook, and read in conjunction with any other

relevant material.” Rose, 953 S.W.2d at 692 (quoting Claiborne v. Frito-Lay, Inc., 718 F.

Supp. 1319, 1321 (E.D. Tenn. 1989)). Here, the City personnel manual includes an

explicit statement that the City did not intend for the procedures to be binding or

constitute any type of contract. It states that none of the provisions in the City personnel

manual “are an employment contract or any other type of contract.” The manual

emphasizes that “[a]ll employees are employed for an indefinite term.” In addition, the

personnel manual reserves to the City the unilateral right to change or revise the

procedures.

As our Court of Appeals has stated, “We can conceive of no clearer way for an

employer to express its intent not to be bound by an employee handbook’s provisions

than the employer’s specific statement that the handbook is not a contract or that the

handbook should not be construed as a contract.” Adcox v. SCT Prods., No. 01A01-

9703-CV-00123, 1997 WL 638275, at *4 (Tenn. Ct. App. Oct. 17, 1997). Moreover, the

City’s “reservation of a unilateral right to modify the provisions of its employee

handbook generally would preclude the handbook from being considered part of the

employment contract.” Id.; see also Logue v. Shelbyville Hous. Auth., No. M1999-

02555-COA-R3-CV, 2000 WL 122228, at *1 (Tenn. Ct. App. Feb. 1, 2000) (citations

omitted) (“The reservation of a unilateral right to change the handbook contradicts an

intent to be contractually bound by its provisions.”). Thus, as pointed out by the district

court in Mr. Keller’s federal action, the personnel manual itself precludes any finding that

the City intended to be bound by its terms. Keller, 2014 WL 2809662, at *6.

Mr. Keller points out that the City personnel manual was adopted by the City

Council. This fact is of no moment. The City’s legislative body adopted the entire

personnel manual, including the disclaimers that undercut Mr. Keller’s claim of a

property interest that entitled him to due process protection.

This Court has not yet “held that an employee handbook could convert an at-will

employment agreement into a protectable property interest” under the due process clause.

Brown, 214 F.3d at 721; see also Gregory v. Hunt, 24 F.3d 781, 785–87 (6th Cir.1994)

(citations omitted) (“In none of the [Tennessee] cases, however, has a court found the

terms of an employee handbook converted at-will employment into a protectible property

interest.”). We decline to do so in this case.

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As we observed at the outset of our analysis, the threshold question for Mr.

Keller’s procedural due process claim is whether he had a constitutionally protected

property interest. Without a protected property interest, he cannot assert a claim for a due

process violation. We hold that Mr. Keller has not shown a property interest entitled to

due process protection.

This holding pretermits the remaining issues on appeal, namely, whether the

procedures utilized by the City were unlawful, and whether damages are available as a

remedy under a common law writ of certiorari.15

CONCLUSION

We hold that Mr. Keller has failed to demonstrate he had a property interest

entitled to protection under either the due process clause of the United States Constitution

or the law of the land clause of the Tennessee Constitution. Consequently, the claims in

his petition must be dismissed. The decision of the Court of Appeals is reversed, and the

decision of the Chancery Court for Bradley County is affirmed for different reasons.

Costs on appeal are taxed to Petitioner-Appellee Joshua Keller, for which execution may

issue if necessary.

15

We note our courts have generally held that the remedies available under a common law writ of

certiorari are limited and damages are not among them. See Lewis v. Metro. Taxicab & Wrecker Bd., No.

89-66-II, 1989 WL 89760, at *3 (Tenn. Ct. App. Aug. 9, 1989) (quoting Ashcroft v. Goodman, 202 S.W.

939, 941 (Tenn. 1918) (“It is generally held that a court reviewing a matter pursuant to a common law

writ of certiorari is limited to vacating the illegal finding and remanding the case to the board or agency

for the making of a legally supportable decision.”); see also City of Knoxville v. Connors, 201 S.W. 133,

134 (Tenn. 1918); Cunningham v. Bd. of Educ., 1986 WL 10692, at *4 n.2 (Tenn. Ct. App. Oct. 1, 1986)

(citing Hoover Motor Express Co. v. R.R. & Pub. Utils. Comm’n, 261 S.W.2d 233, 244 (Tenn. 1953)).

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_________________________________

HOLLY KIRBY, JUSTICE

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