Petition for Writ of Certiorari — Stokes v. University of Tennessee at Martin

Iu The Supreme Court Of The United States

OCTOBER TERM, 1987

RAYMOND STOKES, PETITIONER

v.

THE UNIVERSITY OF TENNESSEE AT

MARTIN, RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

HARRY MAX SPEIGHT aa

P. O. Box 299

Dresden, Tennessee 38225

(901) 364-2010

Attorney For Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. If the State of Tennessee decisions which grant the

Respondent immunity under sovereign immunity are al-

lowed to stand, Petitioner could never have a forum to pro-

tect his Constitutional rights under the Fourteenth Amend-

ment. Rios

2. Does the Personnel Policies and Procedures Manual of

the Respondent create a protected property right under the

Fourteenth Amendment to the United States Constitution

that will be effective as to an entity otherwise protected by

the doctrine of sovereign immunity?

3. Can Respondent disregard its own Personnel Policies

and Procedures Manual, and not violate the principles of due

process under the Fourteenth Amendment to the United

States Constitution?

TABLE OF CONTENTS

a cb wane dvs wwdcees 1

Constitutional Provisions and Statutes Involved......... 2

NT usw eked é ws w oresin 3

ea, 55 ove la's anu bs casos cou ceed 6

ee. oc wee eeeseunsaeba 10

DES PORE OE OPEC TE ETO Te 11

OOP rere 13

Order of Weakley County, Tennessee

Chancery Court Granting Summary Judgment. ... . 14

Order of Court of Appeals of Tennessee

ls eg k-wtaw an eeu wre 15

Opinion of Court of Appeals of Tennessee,

Cee eo ka en a ek be ws 16

Order of Tennessee Supreme Court Denying

Application For Permission To Appeal........... 21

University of Tennessee Personnel Policy

nc SI LS 22

Portions of Complaint Which Raise

Ce cen esas 23

Tennessee Constitution, Article I,

kaw eda naeeh es 24

Tennessee Code Annotated,

a Vin eas a slwe ela 25

Tennessee Code Annotated,

OE ee 26

University of Tennessee Personnel

Te, clean see cet 27

University of Tennessee Personnel

acy ek sch coe san ous 28

University of Tennessee Personnel

Policy-Disciplinary Actions.................... 29

Wells v. Dallas Independent School District

(1983) 576, F. Supp. 497, pages 540-5............ 31

University of Tennessee Personnel

tS oe. i os wd ee ss 32

I]

TABLE OF AUTHORITIES

Cases

Cleveland Board of Education v. Loudermill,

470 U.S. 532, 84L. Ed. 2d 494, 105 S. Ct. 1487, (1985)... .9

Georgia Power Co. v. Decatur,

281 U.S. 505, 74 L.Ed. 999, 50 S.Ct. 369 (1930)... ...

Perkins v. Board of Directors of School Administrative Dist.

(CAT ER OOG F 26 GOI so co oc soins cue ssnnes

Thompson v. Bass, (CA5 ALA) 616 F 2d 1259, cert. denied

449 US. 983, 66 L.Ed. 2d 245, 101 S.Ct. 399 (1980). .

V. L. Nicholson Co. v. Transcon Inv. and Financial Ltd., Inc.,

SES BE; Be ce eee ae tek eee ne

Wells v. Dallas Independent School District,

SAF. Se I Sb ak os ee a wee aes

Wolff v. McDonnell, 418 U.S. 539, 41 L.Ed. 2d 935,

SEDC FP a kc ee sok aes

Other Authorities

Tennessee Code Annotated, Section 20-13-102......

Tennessee Code Annotated, Section 29-10-101......

Tennessee Constitution, Article I, Section 17.......

42 United States Code Section 1983..............

United States Constitution Fourteenth Amendment. . .

. 8,9

Ni a ee a

STATEMENT OF JURISDICTION

On September 8, 1987, the Supreme Court of Tennessee

entered an Order denying Raymond Stokes, the Petitioner

herein, his Application for Permission to Appeal. That Ap-

plication had been filed seeking an appeal to reverse the

decision of the Court of Appeals of Tennessee, Western Sec-

tion, and its Order entered June 19, 1987, which upheld the

trial court's granting of a Motion for Summary Judgment.

The Court of Appeals had affirmed that Petitioner’s action

was barred by sovereign immunity.

Petitioner has raised the issue of due process under the

Fourteenth Amendment to the United States Constitution at

every stage of the proceedings.

Petitioner believes that jurisdiction of this cause is before

the Court by virtue of 28 U.S.C. §2101(c).

2

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The primary Constitutional provision which this case in-

volves is Amendment 14, Section 1, of the United States

Constitution:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

3

STATEMENT OF THE CASE

After more than sixteen (16) years of continuous employ-

ment with The University of Tennessee at Martin, and also

within approximately three (3) years of retirement, Peti-

tioner received a letter from his immediate supervisor, dated

November 29, 1983, stating that his employment as

Associate Director of Financial Aid would be terminated.

The letter, without further explanation or comments, stated:

“Despite previous written and verbal warnings your in-

adequate work performance has continued. Therefore,

it is my decision to terminate your employment effec-

tive December 31, 1983.”

Petitioner was later informed that his termination was

designated as code number 205 under the Personnel Policies

and Procedures Manual in force, (hereafter called Manual),

which Manual had been prepared for use by Respondent in

employee matters. Under the Manual, this termination was

for “cause”’, and required that “additional written explana-

tion” was to be given.

The Manual did not permit a pre-termination hearing or a

post-termination hearing for this type of discharge, but per-

mitted Petitioner to “appeal” the discharge in writing

through the normal “chain of command”. Each person

reviewing the “appeal” would give a written response.’

Petitioner's attorney wrote to Respondent seeking a

specific description of charges constituting “inadequate work

performance” and also requesting a “stay” of discharge pen-

ding the “appeal”. These requests were denied, with the ex-

ception that Petitioner was informed that he could examine

‘The full text of applicable section is printed on Page 22 of Appendix.

If an employee is discharged for acts of dishonesty, the Manual grants

him a post-termination hearing.

+

his personnel file and some other file that his immediate

supervisor had.

Petitioner then attempted to “appeal” his discharge by fil-

ing his affidavit, with exhibits consisting primarily of his

employee evaluations and letters of recommendation. His af-

fidavit generally claimed that he had done what he was re-

quired to do; that the problems between him and his im-

mediate supervisor were personal, based mostly on Peti-

tioner’s refusal to approve questionable loans, and that until

1983 he had always received good employee evaluations.

No counter-affidavits or other written responses were filed

by anyone in opposition.

The “appeal” was reviewed by the Office of Academic

Affairs, the Dean of Admissions and Records, and the

Chancellor of the University. All affirmed the discharge,

although none specified what areas were inadequately per-

formed by Petitioner that justified a discharge.

Petitioner, on May 18, 1984, filed a Complaint in the

Weakley County, Tennessee, Chancery Court against the

Respondent, seeking a reinstatement of his employment,

benefits, backpay and attorney fees. The Complaint was

subsequently amended, and the Complaint, as amended,

raised federal questions consisting of the Due Process Clause

of the Fourteenth Amendment to the United States Constitu-

tion and also the provisions of 42 USC 1983.’

Respondent filed a Motion for Summary Judgment, alleg-

ing that the action was barred by the doctrine of “sovereign

immunity”; that the Complaint failed to state a claim for

which relief could be granted, (a) claiming immunity to suit

under 42 U.S.C. 1983; (b) claiming that Petitioner did not

have protected property or liberty interest; and (c) claiming

that it fully abided by its own rules.

‘Copy of pertinent portion of Complaint found on Page 23 of Appen-

dix.

ee

5

The Chancery Court granted the Motion on the grounds

of sovereign immunity, which Order was entered October

20, 1986. This decision was timely appealed to the Court of

Appeals for Tennessee, Western Section, which on June 19,

1987, affirmed the ruling of the Chancery Court on the

sovereign immunity issue only. Petitioner timely filed his

Application For Permission To Appeal to the Supreme Court

for the State of Tennessee, which application was denied on

September 8, 1987.

Although such were not addressed by the Court of Ap-

peals and the Tennessee Supreme Court, Petitioner has con-

tinued to raise the federal questions throughout his appeals.

6

ARGUMENT

The Respondent has to this point been able to shield itself

behind the doctrine of “Sovereign Immunity” and not have

to provide Petitioner the rights protected by the United

States Constitution, specifically including the Fourteenth

Amendment.

Because of the ever present possibility of abuses to others

as well as this Petitioner, and the need to secure settlement

of important questions of law, especially as it applies to an

“arm” of the State of Tennessee and the conflict with Con-

stitutional guarantees, this Petition should be granted.

If the decisions of the Courts below are allowed to

stand, Petitioner could never have a forum to protect his

Constitutional rights.

As discussed in other portions of this Petition, Petitioner

relies on the—Personnel Policies and Procedures Manual,

prepared and published by Respondent, and the due process

rights which it creates. Such rights are not created by an “ex-

press contract”, but rather an “implied” contract.

The Tennessee Court of Appeals determined that Article

I, Section 17* of the Tennessee Constitution permits suits

against the State only as the Legislature may direct; that with

the exception permitted at the time this lawsuit was first

filed, actions against the State and the University of Ten-

nessee were prohibited under Tennessee Code Annotated

29-10-101° and 20-13-102°. Petitioner has never claimed to

have an “express contract”, which has been defined in Ten-

nessee to be written agreements, stating the agreed terms. V.

L. Nicholson Co. v. Transcon Inv. and Financial Ltd., Inc. (1980)

‘The full text of applicable section is printed on Page 24 of Appendix.

‘The full text of applicable section is printed on Page 25 of Appendix.

*The full text of applicable section is printed on Page 26 of Appendix.

7

595 S.W.2d 474. An “express” contract and an “implied”

contract have been distinguished as follows:

‘In Tennessee, an express contract is created by the par-

ties’ actual assent to mutually acceptable terms ex-

pressed in words or other suitable mode; conversely, a

contract implied in law is imposed by operation of law,

without regard to the assent of the parties, on grounds

of reason and justice.” Continental Motel Brokers, Inc.v.

Blankenship. (1984) 739 F.2d. 226.

Therefore, if allowed to stand, The University of Ten-

nessee at Martin promotes the policy of refusing to con-

sider and/or honor contracts implied by law, regardless of

the provisions of such or whether such create due process

rights under the United States Constitution.

The Personnel Policies and Procedures Manual creates

a property right protected under the Fourteenth Amend-

ment to the United States Constitution.

The Manual authorized and approved seven (7) in-

stances of the termination of employment, whether volun-

tary or involuntary.’ The termination of Petitioner's

employment was in category number 2, “Discharge”,

which is defined as being “for cause”,* and the Manual

further directed that extreme care should be taken to pro-

tect all parties. °

The Manual also required that additional written ex-

planation would be given, and that proper procedures had

to be followed.’

On the employee evaluations made by Petitioner's

supervisors of him from a period of time from March 28,

’The full text of applicable section is printed on Page 32 of Appendix.

"The full text of applicable section is printed on Page 22 of Appendix.

"The full text of applicable section is printed on Page 27 of Appendix.

“The full text of applicable section is printed on Page 28 of Appendix.

8

1977, through April 1, 1982, such clearly indicate that he

was a most satisfactory employee. In fact, on the April 1,

1982, and the two (2) previous evaluations, he had none

less than “Above Average” and “Excellent”."

His termination letter in 1983 was a two (2) sentence let-

ter giving him no specifics as to alleged wrongs.

The Manual also required that any employee whose

work was inadequate was to be given written warnings

describing the specific areas.of inadequacy, corrective ac-

tions expected, and the time pertod for such to be ac-

complished.”

Petitioner was never given a specific time period to cor-

rect anything.”

All of the directions, instructions, policies and pro-

cedures of Respondent's Manual establish a protected

property interest. In the case of Wells v. Dallas Independent School

District, (1983) 576 F. Supp. 497, a similar property interest

was discussed, holding that a provision in a personnel

guide stating that the employer could discharge for cause,

created a protected property interest, even in the absence

of a written contract.

In this case, Petitioner was discharged for what was

classified as “cause”, but was denied the following: (a) ad-

ditional written explanations at time of his termination; (b)

a “pre-termination hearing”; (c) a confrontation of specific

charges or the specific accusers relied upon by his super-

visor in making the decision to terminate his employment;

(d) a “stay” of his discharge, pending administrative

“review”, (e) written responses from the “normal chain of

command” reviewing his termination, stating specific

facts and events supporting approval of his termination;

"See Record, Tennessee Supreme Court, pp. 34/40.

"The full text of applicable section is printed on Page 29 of Appendix.

"See Record, Tennessee Supreme Court pp.111/112.

9

and, (f) specific reasons from anyone stating facts and

events for his termination.

A contrast develops where a state employee may be

discharged “at will” and therefore, under state law, has

no property interest in his job, but a state employee whose

employment may be terminated only for “cause”, does

have a property interest in such employment, and is entit-

led to due process protection. Thompson v. Bass (1980 CAS

ALA), 616 F2d 1259, Cert. denied 449 U.S. 983, 66 LEd 2d

245, 101T S.Ct. 399. ;

Since Respondent's rules limited termination under the

“discharge” category to be only for “cause”, Petitioner

had a reasonable right to expect continued employment.

Perkins v. Board of Directors of School Administrative Dist. (1982 CA1 ME)

686 F2d 49.

It has been long held that neither a state nor any of its

agencies can disregard the prohibitions of the Fourteenth

Amendment, and that an individual is protected against

arbitrary actions of government. Georgia Power Co. v. Decatur

(1930) 281 U.S. 505, 74 L.Ed 999, 50 S. Ct. 369, and Wolff

v. McDonnel (1974) 418 U.S. 539, 41 L.Ed 2d 935, 94 S.Ct.

2963.

To allow Respondent to disregard its own rules, policies

and procedures, violates the basics of Due Process.

Such basics were discussed by this Court in the case of

Cleveland Board of Education v. Loudermill, (1985) 470 U.S. 532, 84 L.Ed

2d 494, 105 S.Ct. 1487, especially as to the desirability of a

pre-termination hearing, and clarified certain employment

rights under this type of case.

Although longevity and faithful, competent years of ser-

vice are not considered by the Respondent, Petitioner

should not be prohibited from being able to avail himself

of such basic rights as notice, opportunity to be heard,

10

pre-termination hearing, and opportunity to respond. This

is also affirmed in the Wells decision supra."

CONCLUSION

Petitioner therefore submits that the doctrine of

sovereign immunity should not be allowed to deny the

Petitioner his Contitutional rights as described herein, and

the Petition for Writ of Certiorari should be granted.

RESPECTFULLY SUBMITTED,

HARRY MAX SPEIGHT

Attorney for Petitioner

P. O. Box 299

Dresden, Tennessee 38225

(901) 364-2010

“The full text of applicable section is printed on Page 31 of Appendix.

11

CERTIFICATE OF SERVICE

I, HARRY MAX SPEIGHT, attorney for Raymond Stokes,

Petitioner, and a member of the Bar of the Supreme Court of

the United States, hereby certify that, on December

, 1987, I served a copy of the foregoing Petition for

Writ of Certiorari on The University of Tennessee at Martin,

Respondent, by mailing a copy in a duly addressed

envelope, with first class postage prepaid, to Beauchamp E.

Brogan, Esq, attorney of record for Respondent at General

Counsel, The University of Tennessee, 810 Andy Holt

Tower, Knoxville, Tennessee 37996-0184.

Dated December , 1987.

HARRY MAX SPEIGHT

Attorney for Petitioner

P. O. Box 299

Dresden, Tennessee 38225

(901) 364-2010

hs

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13

APPENDIX

14

IN THE CHANCERY COURT OF WEAKLEY COUNTY,

TENNESSEE

RAYMOND STOKES, )

Plaintiff,

ys ) Civil Action

) No. 8816

THE UNIVERSITY OF TENNESSEE )

AT MARTIN, )

Defendant. )

ORDER GRANTING DEFENDANT'S MOTION

FOR SUMMARY JUDGMENT

This cause was further heard upon defendant's Motion for

Summary Judgment on the ground that this action is barred

by the doctrine of sovereign immunity, T.C.A. §20-13-102,

and for the additional reason that the Complaint, as amend-

ed, and plaintiff's response to said motion, the pleadings

herein and the argument of counsel, from all of which it ap-

pears that defendant’s motion should be granted.

It is therefore ORDERED, ADJUDGED AND DECREED

that defendant's Motion for Summary Judgment be, and the

same hereby is, granted.

Enter this 20 day of October, 1986.

HOMER W. BRADBERRY

APPROVED FOR ENTRY

HARRY MAX SPEIGHT

Attorney for Plaintiff

RONALD C. LEADBETTER

Attorney for Defendant.

Filed October 20, 1986

15

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT JACKSON

RAYMOND STOKES, )

Plaintiff-Appellant,

ws ) WEAKLEY EQUITY

NO. 4

THE UNIVERSITY OF TENNESSEE ) iB

AT MARTIN, )

Defendant-Appellee. )

ORDER

This matter came on to be regularly considered by the

Court, on the record, and for the reasons stated in the

Court's Opinion, of even date, it is ORDERED that:

1. The judgment of the trial court is affirmed and this case

is remanded for such further proceedings as necessary.

2. Costs are assessed against the plaintiff-appellant for

which execution may issue, if necessary.

J]. CRAWFORD

P.J. TOMLIN, W.S.

J. FARMER

Date Filed June 19, 1987

16

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT JACKSON

RAYMOND STOKES,

Plaintiff-Appellant,

VS.

THE UNIVERSITY OF TENNESSEE

AT MARTIN,

Defendant-Appellee

ll

OPINION

Filed: June 19, 1987

—_—

17

This is an employee discharge case. Plaintiff, Raymond

Stokes, appeals from the order of the trial court granting

summary judgrnent to defendant, University of Tennessee at

Martin (UTM).

Plaintiff's complaint, as amended, alleges that he was first

employed by UTM on September 1, 1967, and was

employed by UTM as Associate Director of Financial Aid

until December 31, 1983. He avers that by letter of

November 29, 1983, Randall Hall, Director of Financial Aid,

advised him that his employment was being terminated as of

December 31, 1983, because of inadequate work perfor-

mance. He alleges that his termination was arbitrary and

capricious and without sound basis, that by virtue of the per-

sonnel policies of UTM he had an expectancy of continued

employment and could only be discharged for cause. He

avers that he has been deprived of his property right in con-

tinued employment without due process and in violation of

the United States Constitution. He further alleges that UTM

violated 42 U.S.C. §1983 which provides as follows:

§1983. Civil action for deprivation of rights. Every per-

son who, under color of any statute, ordinance, regula-

tion, custom, or usage, of any State or Territory, sub-

jects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

UTM answered the complaint and then filed a motion for

summary judgment on the ground that the action was barred

by the doctrine of sovereign immunity and on the ground

that plaintiff failed to state a claim upon which relief can be

granted. Plaintiff has appealed and presents four issues for

review.

The first issue is whether the trial court erred in holding

18

that plaintiff's action is barred by the doctrine of sovereign

immunity.

Article I, Sec. 17 of the Constitution of Tennessee pro-

vides:

Sec. 17. Open courts — Redress of injuries — Suits

against the State. — That all courts shall be open; and

every man, for an injury done him in his lands, goods,

person or reputation, shall have remedy by due course

of law, and right and justice administered without sale,

denial, or delay. Suits may be brought against the State

in such manner and in such courts as the Legislature

may by law direct.

T.C.A. §20-13-102 provides:

20-13-102. Actions against state prohibited. (a) No court

in the state shall have any power, jurisdiction, or

authority to entertain any suit against the state, or

against any officer of the state acting by authority of the

state, with a view to reach the state, its treasury, funds,

or property, and all such suits shall be dismissed as to

the state or such officers, on motion, plea, or demurrer

of the law officer of the state, or counsel employed for

the state.

(b) No statutory or other provision authorizing the

University of Tennessee and its board of trustees to sue

and be sued shall constitute a waiver of sovereign im-

munity.

Plaintiff's suit was filed in Weakley County on May 18,

1984. At the time the suit was filed, T.C.A. §29-10-101(aX1)

was in full force and effect and provided:

29-10-101. Jurisdiction. — (aX1) The several circuit and

chancery courts of Davidson County, Tennessee, shall,

subject to appeal as provided by law, have jurisdiction

to enter judgments against the state founded upon any

express contract or breach thereof with the state and

19

shall determine all questions of fact involved without

the intervention of a jury, subject to the limitations of

this chapter.

Plaintiff contends that T.C.A. §29-10-101(aX1) is not ap-

plicable to him and that Weakley County is the proper

forum for this suit because he is suing on an implied contract

and not an express contract. Therefore, we will consider the

case premised on plaintiff's concession that his suit is based

on an implied contract of employment as opposed to an ex-

press contract of employment. In University of Tennessee v.

Peoples Bank, 157 Tenn. 87, 6 S.W.2d 328 (Tenn. 1928), our

Supreme Court held that the University of Tennessee by in-

corporating did not lose the attribute of sovereignty.

Moreover, the legislature made it quite clear in T.C.A.

§20-13-102(b), quoted above, that it intended for the

University of Tennessee to be clothed with sovereign im-

munity. It is well established that the University of Ten-

nessee is not a “person” amenable to suit under 42 U.S.C.

1983. See Gross v. University of Tennessee, 448 F. Supp. 245

(W.D. Tenn. 1976) aff'd 620 F.2d 109 (6th Cir. 1980).

Plaintiff argues that his suit is not barred by the doctrine of

sovereign immunity because he seeks injunctive relief. We

quote from his brief:

This case was not one brought for damages within the

purpose and intent of T.C.A. §20-13-102. The relief

sought by Plaintiff was for reinstatement of his employ-

ment, benefits, and back-pay, and was in the nature of

equitable or injunctive relief, not damages. (Emphasis

supplied.)

Plaintiff apparently misreads T.C.A. §20-13-102, because

we find nothing in the statute referring to a suit for

“damages.” The statute is quite explicit in prohibiting any

suit “with a view to reach the state, its treasury, funds or

property.” Clearly plaintiff's suit seeking reinstatement,

back-pay, employment benefits, and attorney's fees, comes

— ————

20

within the purview of the statute, T.C.A. §29-10-101(a)(1)'

waiving immunity, relates only to express contracts and

specifically provides for suits thereon in the courts of David-

son County, Tennessee. A statute permitting suit against the

state under authority of Article 1, Sec. 17 of the Constitution

of Tennessee must be strictly construed and the jurisdiction

cannot be enlarged by implication. Hill v. Beeler, 199 Tenn.

325, 286, S.W.2d 868 (1956). Even if plaintiff's Weakley

County suit were premised on an express contract, this

statute mandates a dismissal.

The trial court was correct in holding that plaintiff's suit was

barred by virtue of sovereign immunity; Accordingly, the

judgment of the trial court is affirmed and this case is

remanded for such further proceedings as are necessary.

Costs of the appeal are assessed against the appellant. We

pretermit consideration of the other issues presented.

J. CRAWFORD

CONCUR:

P.J. TOMLIN, W:S.

J. FARMER

‘This statute was repealed effective January 1, 1985, by 1984

Tenn.Pub.Acts Ch. 972, which established the Tennessee Claims Com-

mission.

21

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

RAYMOND STOKES,

Plaintiff/Appellant,

VS. Weakley Equity

THE UNIVERSITY OF

TENNESSEE AT MARTIN,

Defendant/Appellee.

ORDER

Upon consideration of the application for permission to

appeal and the entire record in this cause, the Court is of the

opinion that the application should be and the same hereby

is denied at the cost of appellant.

PER CURIAM

Date Filed: September 8, 1987

22

THE UNIVERSITY OF TENNESSEE

PERSONNEL POLICY ON DISCHARGE

1. Discharge. This is an action initiated by the employer to

terminate an employee for cause. Such terminations will

strictly adhere to the University Disciplinary Policy and

Procedures. The discharge of a staff member is an action

to be taken with extreme care to assure protection to all

parties concerned. Supervisors are expected to contact

their campus or unit Personnel Department prior to

discharging any employee to ensure that such action is

appropriate and consistent with University policy.

"

me

ae 3

23

PORTIONS OF COMPLAINT WHICH RAISE

FEDERAL QUESTIONS

Plaintiff alleges that the actions of the Defendant and its

employees in terminating the employment of Plaintiff

were arbitrary, capricious, without sound basis, and in

violation of the Rules and Regulations of Defendant,

resulting in the financial detriment of Plaintiff. Plaintiff

further alleges that he had the valid expectancy of con-

tinued employment with Defendant, subject to being

terminated only with the provisions of the published

and established policies of Defendant.”

Plaintiff has been deprived of his property right in con-

tinued employment and liberty right in being free from

unjust accusations of incompetency, without the pro-

cess due and the procedures required by the Due Pro-

cess Clause of the Fourteenth Amendment to the

United States Constitution and by the Defendant's own

personnel policy rules and regulations as set forth in its

Personnel Policies and Procedures Manual. These viola-

tions occurred in the following ways. . .”

Plaintiff alleges that he has suffered a deprivation of the

rights, privileges and immunities secured by the Con-

stitution of the United States and the regulations of the

Defendant under the definitions of 42 U.S.C.S. 1983.”

24

TENNESSEE CONSTITUTION _

Article 1, Section 17

“Sec. 17. Open Cou.'ts — Redress of injuries — Suits against

the state. — That all courts shall be open; and every man, for

an injury done him in his lands, goods, person or reputation,

shall have remedy by due course of law, and right and justice

administered without sale, denial, or delay. Suits may be

brought against the State in such manner and in such courts

as the Legislature may by law direct.”

j

He alli ie Sit Ca te Nin 8 eh Abi etc hone

oe ety

25

TENNESSEE CODE ANNOTATED

Section 29-10-101

ee

“29-10-101. Jurisdiction. — (aX1) The several circuit and

chancery courts of Davidson County, Tennessee, shall, sub-

ject to appeal as provided by law, have jurisdiction to enter

judgments against the state founded upon any express con-

tract or breach thereof with the state and shall determine all

questions of fact involved without the intervention of a jury,

subject to the limitations of this chapter.”

26

TENNESSEE CODE ANNOTATED

Section 20-13-102

“20-13-102. Actions against state prohibited. (a) No court in

the state shall have any power, jurisdiction, or authority to

entertain any suit against the state, or against any officer of

the state acting by authority of the state, with a view to

reach the state, its treasury, funds, or property, and all such

suits shall be dismissed as to the state or such officers, on mo-

tion, plea, or demurrer of the law officer of the state, or

counsel employed for the state.

“(b) No statutory or other provision authorizing the Univer-

sity of Tennessee and its board of trustees to sue and be sued

shall constitute a waiver of sovereign immunity.”

27

PERSONNEL POLICY — 160

“When termination of employment becomes necessary,

whether employee or employer initiated, proper pro-

cedures must be followed to assure equitable treatment to

all parties. Termination from the University of Tennessee

shall be officially documented in such a manner as to

establish a clear record of action, both as a service to the

terminating employee and to the University.” (emphasis

added)

28

THE UNIVERSITY OF TENNESSEE

PERSONNEL POLICY 160-Po3

Discharge

205* Failure to follow clear instructions

(Inadequate work performance)

* Additional written explanation will be required.

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29

THE UNIVERSITY OF TENNESSEE AT MARTIN

PERSONNNEL PROCEDURE

DISCIPLINARY ACTIONS

The following multi-step disciplinary procedures will be

followed for the purpose of correcting inadequate work per-

formance or improper job behavior.

I. Inadequate Work Performance: refers to failure to proper-

ly carry out employment responsibilities. Corrective

disciplinary action taken because of inadequate work per-

formance may not be appealed for a hearing.

A. During the probationary period, a non-exempt

employee whose work performance is inadequate is

subject to discharge without recourse. The supervisor

must notify the employee in writing of discharge

prior to the last day of work (see Personnel Policy

and Procedure #135).

B. Temporary employees whose work performance is

inadequate are subject to discharge without recourse

(see Personrel Policy and Procedure #135).

C. The following steps of progressive discipline are used

for regular employees.

1. The supervisor must warn the employee orally

of the areas of job performance which are inade-

quate. The employee should be counseled by the

supervisor regarding necessary corrective ac-

tions. Documentation should be maintained by

the supervisor of the reasons for the oral warning

and of the substance and date of this discussion.

2. If the inadequate work performance continues,

the supervisor must warn the employee in

writing referencing the specific area(s) of inade-

30

quate work performance, the corrective actions

expected of the employee, and the time period

for accomplishing corrective actions. The warn-

ing should also include a statement that if the

specific area(s) of work performance are not cor-

rected within the specified time period, the

employee may be subject to disciplinary action

including suspension or discharge. A sample

written warning notice (Per 17) follows this pro-

cedure.

_ If the specific area(s) of work performance do not

improve within the specified time period, the

supervisor may suspend the employee without

pay for a period of time or discharge the

employee. The supervisor must notify the

employee in writing of the action taken, the

reasons for the action, the time period of suspen-

sion or the discharge date, and the amount of an-

nual leave due in the case of discharge. In the

case of discharge, the employee should schedule

an exit interview with the Office of Personnel

Services. In the case of discharge, the supervisor

should complete the PAF and attach written

documentaion (such as letters of warning), a

copy of the letter of discharge, and the

employee's leave record form or time report.

Forward the materials to the Office of Personnel

Services immediately.

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Wells v. Dallas Independent School District,

(1983) 576 F. Supp. 497

Pages 540-5

“The DISD failed to provide Wells with written notice of ter-

mination and an effective opportunity to rebut the reasons

for termination before termination of Wells’ employment

became effective. The conclusion is therefore inescapable

that the school district denied Wells pre-termination due pro-

cess.

“Anticipating the court's ruling in this regard, the defendants

argue that failure to afford minimal pre-termination pro-

cedures is of no consequence because post-termination

notices and hearings cured any due process deficit.

“It is evident, therefore, that even if this court should deter-

mine that the Board of Trustees provided post-termination

procedures which complied with procedural due process, the

use of the word ‘cure’ merely confuses the issue. Such a cure

does not eradicate the initial violation, nor eliminate a right

to any damages thereby incurred, although it does offer the

employee an opportunity to vindicate himself

and the governmental body an opportunity to retract the

decision to discharge.”

32

THE UNIVERSITY OF TENNESSEE

PERSONNEL POLICY ON TERMINATION

Termination Categories:

1. Resignation.

2. Discharge.

3. Reduction-In-Force.

4. Death.

5. Non-reappointment.

6. Retirement.

7

. Student Termination.

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