Petition for Writ of Certiorari — Clark v. Burns

oa .- 2 oe ap ae

-) 961588 APR 7 1997

OFFICE OF

No. THE CLERK

,

\

\

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

KIMBERLY CLARK,

Petitioner,

Vv.

KATHY BURNS and THE ELECTRIC POWER

BOARD OF CHATTANOOGA,

Respondents.

On PetirION For A Writ OF CERTIORARI

To Tue Unrrep States Court OF APPEALS

For Tue Sixt Circurr

PETITION FOR WRIT OF CERTIORARI

CHARLES P. DUPREE

COUNSEL OF RECORD

Law OFFICE OF CHARLES

DUPREE

104 FRANKLIN BUILDING

CHATTANOOGA, TN 37411

(423) 855-1841

ATTORNEY FOR PETITIONER

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

QUESTION PRESENTED FOR REVIEW

Petitioner was an employee of the Electric Power

Board of Chattanooga, a governmental entity who had

adopted procedures requiring cause for an employee's

termination. Pursuant to their procedures, Petitioner was put

on suspension and then granted a pre-discharge hearing at her

request.

Is this Court's ruling in Loudermili v Cleveland Board

of Education, et al, 470 U.S. 532, 84 L.Ed. 2d. 494, 105

S.Ct. 1487 (1985), and the requirements of the Fourteenth

Amendment to the United States Constitution satisfied by a

hearing where:

1, The person holding the hearing had

made his own investigation and had admittedly

made up his mind to discharge Plaintiff prior

to the hearing.

2. Plaintiff was not fully apprised as to

what evidence was charged against her or

being considered, and was, in fact, discharged

over matters of which she was not notified.

3. Part of her personnel file which she

was not allowed to review was considered as

proof against her, but she was not shown the

contents or told what proof against her to rebut

or how.

PARTIES TO THE PROCEEDING

The Caption of this Petition completely and precisely reflects

all parties to the proceeding. The Electric Power Board of

Chattanooga is a governmental entity, and has no parent

corporation or nonwholly owned subsidiaries.

li

TABLE OF CONTENTS

Issue Presented for REVIEW 6... te ec es i

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Constitutional Provision Involved ............... 1

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Appendix

Appendix A

Opinion of the United States Court of Appeals

for the Sixth Circuit, dated 1/9/97 ......... Al

Appendix B

Order and Memorandum of the United States

District Court, dated 8/24/95 ............ A8

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TABLE OF AUTHORITIES

Cases:

Loudermill v Cleveland Board of Education,

et.al, 470 U.S. 532, 84 L.Ed. 2d. 494,

$05: 60%: 4007 COED) 2S es, 4,5

Statutes:

Amendment XIV to the United States Constitution .... 1

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CITATIONS OF OPINIONS BELOW

Neither the District Court opinion (Appendix B) nor

the decision of the Sixth Circuit Court of Appeals (Appendix

A), from which this Writ is Prayed, are reported. The Sixth

Circuit Opinion in this case is not recommended for full text

publication pursuant to the rules of that court. Both decisions

are contained in the Appendix to this Petition.

STATEMENT OF JURISDICTION

The decision of the Sixth Circuit Court of Appeals

from which this review is requested was entered on January

9, 1997. No Petition for Rehearing has been requested.

This Court has Jurisdiction for this Petition under 28

U.S.C. 1254(1) and 28 U.S.C. 2101(c).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the provisions of the Due Process

Clause of the XIVth Amendment to the United States

Constitution. It reads as follows:

AMENDMENT XIV

Section 1. . . . 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 . .

STATEMENT OF THE CASE

Petitioner is a young white woman who was an

employee of the Electric Power Board of Chattanooga as a

customer service representative. Her job was to handle

complaints and assist customers with any problems they might

have with the utility and its services. The Electric Power

Board of Chattanooga, as admitted in their answer to the

lawsuit, is a governmental entity for the purposes of this case

and the application of due process criteria.

Petitioner had been appointed as a representative of

the other workers to act with management in discussions

regarding future plans and working conditions. Some time

prior to her discharge, she had a face to face discussion with

Kathy Burns, her direct supervisor, at which time Burns said

that the Electric Power Board may be reassigning some of its

customer relations personnel to other shifts. She relayed this

information to the other workers in the department, and their

reactions caused serious turmoil. Burns held a meeting with

the employees and told them the information was false, and

then met with Petitioner to discuss the situation.

Because of her recent experience with management

and Burns, Clark took a concealed tape recorder into the

meeting. When asked, she admitted that she had a recorder

and took it out. Burns and Ms. Glenn, her supervisor, then

demanded that the recorder be turned off. Burns accused

Petitioner of being a liar and of intentionally lying to the

other employees to create disruption in the department. She

was later to meet that with Ron Earl, the department director,

who asked her if she had attempted to tape the meeting. She

of course said yes. She was given a memorandum telling her

of her last day of employment and of her right to a hearing.

She responded by requesting her hearing (see District Court

Memorandum, Appendix B, page A10).

A RRO ie tla Baa OS .

Her hearing was conducted by Ron Earl, who had

admittedly decided before the hearing that he would fire

Petitioner. While she was allowed counsel, she was not

allowed to see or confront either the witnesses against her,

see or examine her personnel file which Earl referenced in

making his decisions, question Earl about what criteria his

decision was based upon or know what other conferences or

"talks" Earl had done prior to the hearing, all of which he

admittedly used to base his decision to fire her. Her counsel

was not allowed to question or to examine the file, any other

notes or records or information which Earl used to base his

decision. Not being sure as to what was being considered as

to her discharge and what in her record was being used,

Plaintiff was left with her testimony and the entry of her

positive work references and evaluations into the record. To

no one's surprise, Earl upheld the discharge of Plaintiff.

Plaintiff filed suit in state Court and was removed to

the Federal Court by Defendants under Federal Question

jurisdiction. After the depositions of Plaintiff and of Ear!

were taken, Defendants filed Motions for Summary

Judgment. After response was made, the District Court

granted Summary Judgment as to both defendants and

dismissed the case, following the logic in the memorandum

issues on August 24, 1995 (See Appendix B, page A10, et

seq.)

Kimberly Clark timely filed her notice of appeal of

this action to the Sixth Circuit Court of Appeals, which

affirmed the dismissal below by its decision of January 9,

1997 (Appendix A, pages Al-A7).

ARGUMENT

This Court had earlier begun to expand and define the

range of requirements of Due Process in the employment

situation where a pre-discharge hearing was provided

pursuant to an employee's property right in her employment.

While Tennessee is an employment at will State, as was

considered heavily by the Sixth Circuit in its decision

(Appendix A, Pages Al-A7), this response does not solve the

problem or resolve the issue against Petitioner.

In this case, the Employer-Defendant, a governmental

entity organized under Tennessee law, set out a discipline and

discharge procedure which gave employees like Petitioner the

right not to be discharged without cause and the right to a

hearing at which she could respond to charges against her and

present evidence in her defense. Since this procedure was

established by the entity itself, the requirements of due

process and employee protections come with the same force

as those negotiated in a union contract in a right to work

state. This has clearly created a protected property interest in

Petitioner in her employment under the rules and regulations

of the employer, separate from any state guarantees or

limitations.

It is in this framework that Petitioner asks this Court

to review the undisputed actions in the hearing by the

designated management official against the Fourteenth

Amendment Due Process requirements. This Court ruled in

Loudermill. supra., that the hearing provided does not have

to be a full blown adversarial hearing with all the trappings

of a trial, but should provide the employee opportunity to

have notice and to be heard as to the other side of the issue,

to prevent against mistaken decisions.

Here, a hearing of sorts was held. The way it was

held, however, did not, even under the most conservative

interpretation, comply with Procedural and Substantive due

4

process. The District Court and the Sixth Circuit are of the

opinion that what was done, complied with the required law.

We do not.

Petitioner's hearing as held had the following defects:

l, The person holding the hearing had

already made his own investigation and had

made up his mind to discharge Plaintiff prior

to the hearing.

2. Plaintiff was not fully apprised as to

what evidence was charged against her or

being considered, and was, in fact, discharged

Over matters of which she was not notified.

3. Part of her personnel file which she

was not allowed to review was considered as

proof against her, but she was not told what

parts to rebut or how.

When this Court stressed in the Majority opinion in

Loudermill, supra., that the employee must have the

opportunity to be heard, that in itself would contemplate a

hearing in which the someone was actually listening. Here,

the hearing was held before a person who has admittedly

already decided to fire her, with totally insufficient notice as

to the full charges and the "evidence" against her that she was

to rebut, the entire process has been downgraded to a

procedural farce.

While a full blown confrontational hearing is not

required in this, the actions that took place here are simply

much too much less, and should not be approved.

If this is all that due process requires, then the

5

opportunity for a hearing is reduced to a chance for the

employee to kneel on the floor, grab the legs of the hearing

official and beg for her job. Petitioner does not believe that

this was the type of "hearing" contemplated by this Court in

their decisions in this area.

CONCLUSION

For the above reasons, Petitioner requests this

Honorable Court to Accept this case for review and Issue the

Writ of Certiorari that the Court of Appeals for the Sixth

Circuit, granting such additional and further relief to

Petitioner as this Court sees Proper.

Respectfully submitted,

/S/

Charles P. Dupree

Counsel of Record

Suite 104, Franklin Bldg.

Chattanooga, TN 37411

(423) 855-1841

APPENDIX A

FILED

Jan 9, 1997

Leonard Green, Clerk

No. 95-6196

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Tennessee,

Defendants-Appellees

Kimberly CLARK, )

Plaintiff-Appellant )

) ON APPEAL FROM

) THE UNITED STATES

v. ) DISTRICT COURT

) FOR THE EASTERN

Kathy BURNS and the ) DISTRICT OF

Board of Chattanooga, ) TENNESSEE

)

/

BEFORE: KRUPANSKY, BOGGS, & SILER,

Circuit Judges.

PER CURIAM. Plaintiff has appealed from a district court’s

grant of summary judgment for defendants on her complaint,

which alleged a federal civil rights violation and a state law

defamation claim. Plaintiff has averred two errors: (1) the

district court improperly concluded that a hearing afforded by

Al

Clark v. Burns, No. 95-6196

her former employer, Defendant Electric Power Board of

Chattanooga, Tennessee (“EPB”), prior to her termination

protected and preserved her right to due process guaranteed

by the Constitution; and (2) the district court erroneously

concluded that plaintiff presented insufficient evidence to

sustain a cause of action for defamation against her former

supervisor, defendant Kathy Burns (“Burns”).

Since 1986, plaintiff, Kimberly Clark (“Clark”),

worked for the EPB, a quasi-governmental organization, as an

at-will employee in its Customer Information Center (“CIC”).

The CIC staggered seven shifts of representatives to respond

to customers’ concerns via telephone between the hours of

7:00 AM and 8:00 PM, Monday through Friday. To the

dissatisfaction of Clark, the shifts were rotated among

employees on a monthly basis. Her displeasure escalated and

during 1992 and 1993 Clark frequently expressed her

objection to her immediate supervisor, defendant Burns.

Clark repeatedly suggested that Burns assign employees to

work particular shifts on a permanent basis, rather than rotate

them. Although Clark’s proposal was consistently rejected by

Burns, her response on one particular occasion gave rise to

the instant controversies.

Burns related that during a private meeting on May 6,

1993, she dismissed Clark’s complaint as usual and then

explained, “[W]e should all be very thankful that we do not

have to work 24 hours per day, or 7 days a week, as a lot of

companies require their employees to do.” Clark

remembered the conversation differently. She has contended

that Burns said there was a “possibility” that the department

would inaugurate 24 hour shifts, weekend shifts, and

monitoring of all telephonic conversations. Irrespective of

what Burns actually said during this discussion, on the

following day two CIC employees reported to her that Clark

A2

Clark v. Burns, No. 95-6196

had cautioned them about impending changes in the working

shifts. Apparently, Clark had informed some CIC employees

that the EPB planned to add several additional shifts in crder

to cover an extensive schedule of 24 hour days, 7 days a

week. (J.A. at 148.) Unhappy with this notion, some

employees contemplated resignation and one promptly

submitted a transfer request.

Burns attempted to quiet unrest in the department by

explaining that the rumor was false. In the course of her

efforts she purportedly denounced Clark as a liar, giving rise

to the instant defamation charge. Burns also contacted her

immediate supervisor, Alice Glenn (“Glenn”), the

Superintendent of the Customer Service Department, to

discuss the seminal conversation with Clark, the alleged

misrepresentation by Clark of this conversation to CIC

employees, and the resultant disruption caused by Clark’s

activities. (J.A. at 149.) Consequently, a meeting among

Burns, Glenn, and Clark, to discuss Clark’s alleged conduct

in circulating the misinformation about the shift changes, was

scheduled for May 18, 1993.

Before the meeting, Clark told some CIC employees

that she secretly intended to tape record the confrontation.

One of these employees informed Burns of Clark’s intention.

At the meeting, Burns advised Clark that she knew about the

recorder, asked her to remove it, and ordered her to turn it

off. The parties then discussed the events already related.

Within a fortnight, Glenn’s supervisor, Ronald Earl (“Earl”),

also met with Clark to discuss her behavior. In both

meetings, Clark denied having told the staff that the shifts

would be changed and explained that she had merely indicated

that shifts could be changed. Nevertheless, Clark admitted

her surreptitious attempt to record the meeting with Burns and

Glenn.

A3

Clark v. Burns, No. 95-6196

On May 26, 1993, Clenn prepared a memorandum

advising Clark that she intended to seek her termination from

the EPB on June 1, 1993 due to her misrepresentations to the

CIC employees and her covert attempt to record the May 18,

1993 meeting. Both Glenn and Burns proceeded to Clark’s

work station, requested her to read the memorandum, gather

her belongings, and leave the premises. However, Clark was

permitted to remain on the payroll until the EPB afforded her

an opportunity to appeal her termination at a hearing before

Earl on June 1, 1993. Legal counsel represented Clark at this

appellate hearing. After introductory remarks by Earl, Glenn

presented her reasons for recommending Clark’s termination,

including the dissemination of disruptive misinformation

among CIC employees and the furtive attempt to tape record

a meeting with supervisors. Clark responded to the first

charge by denying that she misinformed the other employees

because she had purportedly only told them that shift changes

were under consideration. She admitted the second charge.

Clark’s attorney introduced her personnel file into evidence

and noted her history of generally positive evaluations and a

seven percent pay increase on May 1, 1993. Clark presented

no other evidence and called no witnesses. On the next day,

Earl issued a letter to Clark upholding Glenn’s

recommendation to dismiss her. He concluded that Clark’s

behavior constituted insubordination and misconduct on the

job.

Clark sought judicial redress in the Circuit Court of

Hamilton County, Tennessee, and the case was removed to

the United States District Court for the Eastern District of

Tennessee. The district court confronted two legal issues.

First, Clark sought to invalidate Earl’s decision of termination

because the EPB appellate process allegedly violated 42

U.S.C. § 1983. Second, Clark sought to recover damages

A4

Clark v. Burns, No. 95-6196

from Burns because the nature of her announcement that

Clark had misstated the truth allegedly constituted defamation

under Tennessee law. The district court favored both

defendants on summary judgment.

This court reviews appeals from grants of summary

judgment under a de novo standard. EEOC v. University of

Detroit, 904 F.2d 331, 334 (6th Cir. 1990). IN this context,

such analysis asks the court to assess “whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251-52 (1986). In its pursuit of this goal, the court

must “draw all justifiable inferences in favor of the non-

moving party.” Winningham v. North American Resources

Corp., 42 F.3d 981, 984 (6th Cir. 1994). Nevertheless,

“(t]he mere existence of a scintilla of evidence in support of

the [nonmovant]’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the

[nonmovant].” Liberty Lobby, 477 U.S. at 252 (1986). At

least one genuine issue of material fact must exist. Middleton

v. Reynolds Metals Co., 963 F.2d 881, 882 (6th Cir. 1992).

A fact is material if it will “affect the outcome of the suit

under governing law. . . . Factual disputes that are irrelevant

or unnecessary will not be counted.” Liberty Lobby, 477

U.S. at 248.

The district court concluded that Clark was not

entitled to recover under her § 1983 claim because she did not

assert a constitutionally protected right to continued

employment, and even assuming that she had, the EPB had

given her all of the due process protection afforded by law.

Because a § 1983 plaintiff must prove a constitutionally

protected interest as a condition precedent to the court’s

cognizance of the claim, see Ramsey v. Board of Education,

AS

Clark v. Burns, No. 95-6196

844 F.2d 1268, 1272-73 (6th Cir. 1988), Clark’s total failure

to proffer any proof of a constitutionally protected property

interest was fatal to her § 1983 action. By failing to present

evidence on this essential element of her prima facie case

below, Clark has waived that issue on appeal. See Travitz v.

Northeast Dept. ILGWU Health and Welfare Fund, 13 F.3d

704, 711 (3d Cir.), cert. denied, 114 S.Ct. 2165 (1994);

United States v. Tracy, 989 F.2d 1279, 1286 (1st Cir.), cert.

denied, 508 U.S. 929 (1993); Fed.R.App.P.28(a)(3), (5), and

(6); cf. John v. Barron, 897 F.2d 1387, 1393 (7th Cir.), cert.

denied, 498 U.S. 821 (1990).

Regardless, because the sufficiency of a claim to a

property interest in employment must be decided by reference

to state law, Clark’s unchallenged status as an at-will public

employee in Tennessee left her no constitutionally protected

property interest in continued employment. See Gregory v.

Hunt, 24 F.3d 781, 784-85 (6th Cir. 1994). In Tennessee, an

employee hired for an indefinite period is an employee-at-

will, and the employment can be terminated by either party at

any time with or without cause. See Graves v. Anchor Wire

Corp., 692 S.W.2d 420 (Tenn. Ct. App. 1985).

Consequently, the district court’s dismissal of Clark’s § 1983

claim is AFFIRMED.

Clark’s defamation claim must also fail because even

if this panel were to regard the facts most favorably to her

claim,' Tennessee law follows the general rules that “false

' Clark’s own conflicting renditions of the facts

undermine the credibility of her accounts. In the complaint, Clark

alleged that Burns reported plaintiff's “lie” about shift changes to

the EPB management. (J.A. at 10 (Vol. I.) In her deposition,

Clark alleged that Burns reported plaintiff's “lie” to the employees

in the CIC. (J.A. at 43 (V.I).)

A6

Clark v. Burns, No. 95-6196

Statements do not constitute actionable defamation merely

because they are false and that the burden of proof rest([s]

upon the plaintiff to demonstrate that the [statement] was, in

fact, defamatory because it tended to injure plaintiff in h{er]

trade, profession, or community standing, or lower h[er] in

the estimation of the community or subject hfer] to scorn,

ridicule, shame, contempt, or embarrassment.” Connaughton

v. Harte Hanks Comm., Inc., 842 F.2d 825, 840 (6th Cir.

1988), aff'd, 491 U.S. 657 (1989); see Quality Auto Parts

Co. v. Bluff City Buick Co., 876 S.W.2d 818, 820 (Tenn.

1994) (“The basis for an action for defamation, whether it be

slander or libel, is that the defamation has resulted in an

injury to the person’s character and reputation.”); cf. Stones

River Motors, Inc. v. Mid-South Pub. Co., 651 S.W.2d 713,

719 (Tenn. Ct. App. 1983) (“For a communication to be

libelous, it must constitute a serious threat to the plaintiff's

reputation. A libel does not occur simply because the subject

of a publication finds the publication annoying, offensive or

embarrassing. The words must reasonably be construable as

holding the plaintff up to public hatred, contempt or ridicule.

They must carry with them an element ‘of disgrace.’”)

(quoting W. Prosser, Law of Torts, § 111 (4th Ed. 1971)).

Because Clark has failed to raise a genuine issue that anyone

intended to harm her maliciously or that the statements

constituted a serious threat to her reputation, the district

court’s rejection of Clark’s defamation claim is AFFIRMED.

Accordingly; the district court’s judgment of August

24, 1995, is hereby AFFIRMED

A7

APPENDIX B

FILED

Aug 24, 1995

Murry Hawkins, Clerk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

Kimberly CLARK, )

Plaintiff )

)

Vv. ) No. 1:93-CV-356

) Collier/Powers

Kathy BURNS and the )

Electric Power Board of )

Chattanooga )

/

ORDER

For the reasons stated above, it is ORDERED that the

motion for summary judgment by defendants Kathy Burns and

Electric Power Board of Chattanooga are GRANTED

pursuant to Rule 56 of the Federal Rules of Civil Procedure

and all claims against them are DISMISSED with

PREJUDICE.

A8

ENTER:

/S/

CURTIS L. COLLIER

United States District Judge

ENTERED AS A JUDGMENT

AUG 24, 1995

R. MURRY HAWKINS, CLERK

By /S/

Cyndes Holden

A9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

Kimberly CLARK, )

Plaintiff )

)

Vv. ) No. 1:93-CV-356

) Collier/Powers

Kathy BURNS and the )

Electric Power Board of )

Chattanooga, )

Defendant. )

/

MEMORANDUM

Currently before the Court are the defendants’ Kathy Burns

and Electric Power Board of Chattanooga motions for

summary judgment and the plaintiff's response thereto.! Both

named defendants move for summary judgment pursuant to

Rule 56 of the Federal Rules of Civil Procedure, as to the

complaint of plaintiff Kimberly Clark for deprivation of due

process rights in her dismissal from employment at the

Electric Power Board. (Court File No. 1). Defendants’

motions are GRANTED and all claims against these

defendants are DISMISSED with PREJUDICE for the

following reasons:

1

GRANTED.

Plaintiff's motion for response to be timely filed is

Al0

ne

see Te eo

I.

BACKGROUND

The following summary of facts is compiled from the

pleadings of the parties and their supporting evidence.

The plaintiff in this matter, Kimberly Clark

(hereinafter Clark) was an employee for the Electric Power

Board (EPB) serving as a customer adviser in the Customer

Information Center (CIC). The CIC is the information center

which receives phone calls from the public regarding various

matters concerning the payment, maintenance and other

services connected with the EPB’s duties to the public. As a

customer advisor Clark received approximately 100 phone

calls a day from the public and could receive as many as 300

phone calls a day. (Court File No. 27, Burns Affidavit;

Clark Deposition.).

Clark began working with the EPB as a temporary

employee and was hired as a full time employee in December

of 1986. EPB employees are not subject to any civil service

or tenure system. (Court File No. 27, Earl Affidavit.). Mrs.

Clark was not given a contract of employment and was hired

as an “at will” employee. (Court File No. 27). Clark was

later promoted to her last position of Customer Adviser.

Electric Power Board Emplcyees in the CIC work seven hour

shifts which are staggered throughout the week. These shifts

were supervised by defendant Burns and all decisions

concerning shift assignment were made by Burns.

On May 6, 1993, Clark spoke to Burns about

changing the current shift assignments to permanent shifts

assignments. Burns allegedly said that she would not change

the shifts. After this discussion, Clark spoke about a change

in the shift rotation to various employees resulting in turmoil

and unrest within the department. Some employees

contemplated transfers to other departments to avoid the

All

reported changes that were going to take place.? Burns

learned that Clark had made these statements regarding a shift

change and held a meeting with the employees of the

department to inform them that the information was false. On

May 18, 1993 Clark met with Burns to discuss her alleged

conduct in spreading this information. Also present at this

meeting was Burns’ immediate supervisor, Ms. Alice Glenn.

In order to record the conversations that took place

during this meeting, Clark entered Burns’ office with a tape

recorder hidden under her ciothing. Unknown to Clark,

however, another employee had informed Burns of Clark’s

attempt to secretly record the remarks made during the

meeting. Burns requested that Clark remove the recorder and

turn it off. After Clark complied with this request, the parties

discussed the statements made by Clark concerning shift

changes. Clark alleges that during this discussion Burns

called her a liar and said that she intentionally lied to create

disorder in the department. Burns denies that she called

Clark a liar. Mr. Ronald D. Earl, the manager of the

division which includes the CIC and Ms. Glenn’s immediate

supervisor, was informed of Clark’s conduct and met with

Clark on May 26, 1993. (Court File No. 27, Earl

Affidavit.). At this conference Clark admitted to secretly

attempting to tape record the Burns meeting. After the

meeting, Earl told Clark to return to her workstation. Later

that day, Clark was given a memorandum informing her that

her employment with EPB was to end June 1, 1993 due to

misrepresentations and attempting to record the meeting with

Burns. (Court File Numbers 27, 29, and 1). Clark was then

given an opportunity to appeal her termination at a June 1

2 The motions made by the defendants state that several

employees were concerned about being assigned late shift hours

permanently due to their lack of seniority.

Al2

hearing. Clark attended the meeting with her attorney and

continued to receive her regular pay until the date of the

hearing. (Court File Numbers 27, 29, and 1). At the hearing

Clark presented positive evaluations from her personnel file

and presented no other evidence. However: the plaintiff

argues that she was denied opportunity to be heard. (Court

File No. 1). On June 2, 1993 Clark was fired by Earl who

stated that enough evidence was presented at the hearing to

warrant her dismissal.

Clark sued in the Circuit Court of Hamilton County,

Tennessee and this suit was removed to the United States

District Court on August 26, 1993. The plaintiff claims that

her substantive and procedural due process rights were

violated by EPB when they dismissed her, depriving her of

her property right in her employment. Plaintiff Clark further

alleges that Kathy Burns’ statement about her lying were

improper and constitute defamation under Tennessee law.

(Court File No. 1).

Il.

DISCUSSION

A. Summary Judgment Standard:

Fed. R. Civ. P. 56(c) provides that summary judgment

will be rendered if there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of

law. The burden is on the moving party to show conclusively

that no genuine issue of material fact exists, and the Court

must view and all inferences in the light most favorable to the

nonmoving party. Kentucky Div., Horsemen’s Benevolent &

Protective Ass'n, Inc. v. Turfway Park Racing Ass'n, Inc. , 20

F.3d 1406 (6th Cir. 1994); White v. Turfway Park Racing

Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street

Al3

Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).

Once the moving party presents evidence sufficient to

support a motion under Rule 56, the nonmoving party is not

entitled to a trial solely based on allegations. The nonmoving

party must come forward with some significant probative

evidence which makes it necessary to resolve the factual

dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Kentucky Horsemen’s Ass’n, 20 F.2d at 1411; White,

909 F.2d at 943-44; Ivy Street, 822 F.2d at 1435. The

moving party is entitled to summary judgment if the

nonmoving party fails to make a sufficient showing on an

essential element of the case with respect to which it has the

burden of proof. Celotex, 477 U.S. at 323; Kentucky

Horsemen’s Ass'n, 20 F.3d at 1411.

The trial court’s function at the point of summary

judgment is limited to determining whether sufficient

evidence has been presented to make the issue of fact a proper

jury question, and not to weigh the evidence, judge the

credibility of witnesses, or determine the truth of the matter.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);

60 Ivy Street, 822 F.2d at 1435-36. The standard for

summary judgment mirrors the standard for directed verdict.

The court must decide “whether the evidence presents a

sufficient disagreement to require submission to a jury as a

matter of law.” Anderson, 477 U.S. at 251-52. There must

be some probative evidence from which the jury could

reasonably find for the nonmoving party. If the Court

concludes that a fair-minded jury could not return a verdict in

favor of the nonmoving party based upon the evidence

presented, it may enter summary judgment. Jd.

B. Fifth and Fourteenth Amendment Allegations:

The plaintiff in her complaint alleges that EPB

violated her procedural and substantive due process rights

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when they dismissed her from her position thereby depriving

her of property and violating the Fifth and Fourteenth

Amendments of The United States Constitution and 42 U.S.C.

§ 1983. EPB in its motion for summary judgment argues that

it took all of the necessary steps to ensure that Clark’s due

process rights were maintained and that her dismissal was

justified.

The plaintiffs must establish in its Section 1983 claim

the existence of a constitutionally protected property interest.

Ramsey v. Board of Education, 844 F.2d 1268 (6th Cir.

1988); Leis v. Flynt, 439 U.S. 438 (1979) (a plaintiff must

have enforceable claim to assert a Section 1983 claim);

Riverview Investment Inc., v. Ottawa Community

Improvement Corp., 769 F.2d 324, 327 (6th Cir. 1985);

Gregory v. Hunt, 24 F.3d 781, 785 (6th Cir. 1994); Bennet

v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121

(Tenn. 1992). Here the plaintiff asserts a property interest

claim resulting from her employment. The sufficiency of the

claim to property interest in employment must be decided by

reference to state law. Bishop v. Wood, 426 U.S. 341

(1976); Perry v. Sinderman, 408 U.S. 593, 601 (1972);

Woosley v. Hunt, 932 F.2d 555 (6th Cir. 1991). In Duncan

v. Onida this Court held that “the State of Tennessee does not

grant by statute, or otherwise, a right to continued public

employment.” Duncan v. Onida, 564 F.Supp. 425, 426

(E.D. Tenn. 1983) aff'd, 735 F.2d 998 (7th Cir. 1984). The

Tennessee Supreme Court has held:

“A public employee is not deemed to have a

contract of employment within the meaning of

the ‘impairment of contract’ provisions of the

State and federal constitutions unless the

employee is affected by a tenure or civil

service system.”

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Blackwell v. Quarterly County Court, 622 $.W.2d 535, 539

(Tenn. 1981). See also Garvie v. Jackson, 845 F.2d 647 (6th

Cir. 1988); Bush v. Johnson, 602 F.Supp. 96 (E.D. Tenn.

1985).

Applying the above law to the facts, the Court finds

that the plaintiff has not asserted a constitutionally protected

right to continued employment. The affidavits submitted by

the defendants, and uncontested by the plaintiffs, showed that

Clark was not under any form of durational employment

contract while she was employed with EPB. (Court File No.

27, Earl Affidavit; Clark Deposition, page 33, lines 14-24).

All of the evidence presented shows that Clark was an

employee at will and that she understood this. The standard

for summary judgment is to view the evidence in the light

most favorable to the nonmoving party. Kentucky Div.,

Horsemen’s Benevolent & Protective Ass’n, Inc., 20 F.3d

1411 (6th Cir. 1944); White, 909 F.2d at 943 (6th Cir. 1990);

60 Ivy Street Corp., 822 F.2d at 1435 (6th Cir. 1987). The

nonmoving party must come forward with some significant

probative evidence which makes it necessary to resolve the

factual dispute at trial. Celotex Corp. V. Catrett, 477 U.S.

317 (1986); Kentucky Horsemen’s Ass'n, 20 F.3d at 1411;

White, 909 F.2d at 943-44; Ivy Street, 822 F.2d at 1435. The

plaintiffs have brought forward no evidence to contest the

affidavits of Earl or Burns. (Court File No. 35, Plaintiffs

Response to Summary Judgment). Further the plaintiff has

only supported the statements of the defense by submitting the

entire uncontested deposition of Mr. Earl which clearly says

that the plaintiff is employed at will. The plaintiff has failed

to come forward with significant probative evidence which

makes it necessary to resolve the factual dispute at trial.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Kentucky

Horsemen’s Ass’n, 20 F.3d at 1411; White, 909 F.2d at 943-

44; Ivy Street, 822 F.2d at 1435.

The plaintiff also asserts that her procedural due

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process rights were violated by the manner in which the

dismissal took place. The Supreme Court along with the

Sixth Circuit held that the due process clause requires specific

measures in the dismissal of a government employee. A

public employee with a property interest in her employment

must be given oral or written notice of dismissal, an

explanation of the employer’s reasons for the dismissal, and

an Opportunity to be heard. Loudermill v. Cleveland Board

of Elections, 844 F.2d 304, 310 (6th Cir. 1988) on remand

from Loudermill, 470 U.S. 532. Justice White, writing for

the majority in Loudermill held that an employee is only

entitled to these actions because the purpose of the process is

to ensure that the discharge is not a mistake. Loudermill, 470

U.S. at 546. Due process demands a pretermination hearing

be held to determine if the termination is being done on

reasonable grounds. Jd. This hearing does not have to be

elaborate, it need only provide an opportunity to be heard.

Id. To require more would unnecessarily burden the

government when terminating unsatisfactory employees. Jd.

Clark argues that she was denied due process

protection; however, her pleadings state the opposite.

According to the complaint, Clark was informed of her

habits, given a letter of discharge and a hearing to appeal her

discharge. (Court File No.1). Under the ruling of the

Supreme Court and the Sixth Circuit she was given due

process protection. Affidavits and.depositions presented by

both sides acknowledge that Clark had an opportunity to be

heard, and this opportunity is all that the law requires.

(Court File No. 27, Earl Affidavit, Burns Affidavit, and

Memorandum of Recommendation for Termination).

Evidence proffered by the defense shows that Clark was

aware that the appeal was her opportunity to be heard on the

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issue of dismissal.? (Court File No. 27). This, Clark was

given all of the due process protection afforded by the law;

she was given notice (a memorandum) and an opportunity to

be heard.

It is for the reasons stated above that the Section 1983

claims alleging a violation of due process must be dismissed

with prejudice against the named defendants in this case.

c. Defamation Allegations:

The complaint of Clark alleged that defendant Burns

defamed her character by calling her a liar. To sustain a

defamation suit a plaintiff must show more than mere

statements of a defamatory nature. Dunneburke v. Williams,

381 S.W.2d 909 (1964). To prevail in a defamation suit the

plaintiff must show communications that are a serious threat

to her reputation. Stones River Motors, Inc. v. Mid-South

Publishing Co., 651 S.W.2d 713, 719 (Tenn. App. 1983).

To assert defamation the plaintiff must also show publication

of the statements. Applewhite v. Memphis State Univ., 495

S.W.2d 190 (Tenn. 1973). Clark alleges that Burns published

these statements when Burns stated “she lied” when asked

directly by an employee the validity of Clark’s statements

regarding the shift changes. However, the defendants have

persuasively argued that the alleged statements do not

constitute defamation because they were based upon disclosed

facts. In support of this contention the defendants cite Stones

River Motors and Windsor v. Tennessean, 665 S.W.2d 680

(1983). | Both authorities explain the law in Tennessee

regarding the publication of disclosed facts. No matter how

3 According to the evidence proffered by the defense,

uncontested by the plaintiff, Clark brought her attorney with her to

the appeal hearing.

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derogatory the statements are, the statements are only an

expression of opinion based upon those facts. Windsor, 654

S.W.2d at 686. See also Connaughton v. Hearte Hanks

Communications, Inc., 842 F.2d 825 (6th Cir. 1987)

(generally the rule is that false statements do not form

actionable defamation due to the plaintiff's burden to show

that the statement was made to injure the plaintiff in his trade,

profession or community subjecting her to shame, ridicule or

contempt).

The defendants argue that Burn’s statements were

based upon information she had received from the facts.

Whether she had actually received these facts is a question for

a jury; however, due to the weight of authority asserting that

only those statements which are a serious (emphasis added)

threat to an individual’s reputation may be considered

defamation, we find that Burns’ motion for summary

judgment should be granted.

Further, the plaintiff must show that the statements

made by Burns were done to defame her reputation. Viewing

the evidence in the light most favorable to Clark, it appears

that the statements, even if true, were said to explain the

statements of Clark. The Court must look at the statements

in the context of the situation and surroundings of the event.

Connaughton, 842 F.2d at 840. Burns has presented

affidavits and depositions showing an environment of disorder

regarding the shift changes. (Court File Numbers 25 and 27,

Clark Deposition, pages 51-58). These depositions include

statements by the plaintiff. The plaintiff has not brought

forth any evidence to refute the evidence offered by the

defense and thus has failed to raise an issue of fact which

4 The Clark deposition, on page 57, has the plaintiff

stating that there was a “big blowup” about various employees

“getting bent out of shape” reagarding a proposed shift change.

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must be brought before a jury. For the above reasons the

motion for summary judgment regarding the allegations of

defamation is granted.

Ill.

CONCLUSION

The motions for summary judgment pursuant to Rule

56 of the Federal Rules of Civil Procedure from defendants

Burns and Electric Power Board are GRANTED and all

claims against these defendants are dismissed with prejudice.

/S/

CURTIS L. COLLIER

United States District Judge

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