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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 935

## Text

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

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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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31

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0585%3A1. Public record. Not legal advice.