# Petition for Writ of Certiorari — Clark v. Burns

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0534%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1264

## Text

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
Pe we RO ne on en Cos ee oe he Cee il
CS SIP sor ko kk Sa tees Bowe Ne aoe il
Pee ae Sot 6 ee ee ORO a Ce es Ces iil
See Oe FS ao ee aN ee RR iv
Citations Of Opinions Below ..........00ee see. |
ey WO ERIE 5 oc ek hie 0 8h oe Petes 8 ae ]
Constitutional Provision Involved ............... 1
ET WSN we k een kW ee aes gus 2
ES GAN a ot ae ook BRN eee 7 RO Re +
gs ta a a aw oa ea Ce aa hs Se Oe eles 6
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

lil

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

iV

* ERRORS iret ~~ ait niche *

a EES

>
a
3
:
:
-

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

Al4

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.”

Al5

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

Al6

inde sib oahanatll

cies wt Op a x » 4 » :
peta ' a Riva < rg hes ttle ah Sat Ny bathe ky

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

Al7

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.

Al8

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.

Al9

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

A20

SESE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0534%3A1. Public record. Not legal advice.