Tennessee Supreme Court Upholds Termination of Firefighter

The termination of a Tennessee firefighter who was fired in 2015 following an off-duty altercation, has been upheld by the Tennessee Supreme Court. Paul Zachary Moss was fired by the Shelby County Fire Department following a no-contest plea to charges that he assaulted two men with a firearm.

Moss’s termination was upheld by the Shelby County Civil Service Merit Board, and the Shelby County Chancery Court. It was reversed by the Tennessee Court of Appeals, who concluded the fire department violated Moss’ due process rights by failing to give him adequate notice of the charges against him. Moss also claimed the Civil Service Merit Board made several incorrect evidentiary rulings, but the court never reached those issues.

The facts of the case, as explained by the Tennessee Supreme Court, are as follows:

  • On November 1, 2013, Paul Zachary Moss, while off duty from his job as a firefighter with the Shelby County Fire Department, went to a political rally at his wife’s request.
  • Police arrested Mr. Moss at the rally after he argued and scuffled with Thomas Mason Ezzell, Jr. and Earl N. Mayfield, Jr.
  • A grand jury indicted Mr. Moss on two counts of aggravated assault.
  • On February 24, 2015, the Shelby County Criminal Court accepted Mr. Moss’s Alford guilty plea to one count of aggravated assault arising out of the altercation involving Mr. Ezzell and dismissed the count involving Mr. Mayfield.
  • The Criminal Court placed Mr. Moss on judicial diversion.
  • Under Shelby County government rules, a firefighter may not continue his employment after pleading guilty to a felony.
  • On March 2, 2015, Fire Department Deputy Chief Dale H. Burress gave Mr. Moss a written Loudermill notice informing him of the possibility of major disciplinary action, including termination, because Mr. Moss had violated:
    • I: RR-0164005: General Rules of Conduct; Page 1, Line 5 (E) states: Disciplinary Action, including discharge, may be taken for, but shall not be limited to the following causes: (e) That the employee has been convicted of a felony.
    • II. AD-0807001: Notification of Arrest; Page 1 (last two sentences state): Disciplinary action may be taken against an employee, as a result of evidence presented, that is in violation of Shelby County Policies, procedures or regulations. Such disciplinary action may be separate and apart from pending or final court decisions.
  • On March 30, 2015, Fire Department Chief Alvin D. Benson and Deputy Chief Burress met with Mr. Moss in what is known as a Loudermill hearing.
  • The Fire Department allowed [Moss’ attorney] Mr. Brashier to observe, but not participate in, the Loudermill hearing.
  • Before the Loudermill hearing, Mr. Brashier sent a letter to the Fire Department explaining that there is no conviction when a defendant, like Mr. Moss, enters an Alford guilty plea and is granted judicial diversion. He enclosed with the letter a Tennessee Attorney General opinion supporting his position.

Following the Loudermill hearing, Chief Benson concluded that Moss gave “vague and in some cases deceptive and/or untrue” responses at the hearing, and ordered him terminated. Before the Civil Service Merit Board, Moss sought to call both of the men who he allegedly assaulted. Only one of the men appeared, and several evidentiary decisions went against Moss. The Board concluded that the fire department met it’s burden of proof to warrant termination and that Moss had been untruthful.

The trial court affirmed the Board’s decision. The court of appeals reversed, finding that Moss did not receive adequate notice of the reasons for his termination. Specifically:

  • The Court of Appeals rejected the Board’s contention that Mr. Moss received notice of charges not stated in the Loudermill notice—his conduct during the November 2013 altercation and untruthfulness during the Loudermill hearing—through the termination letter.
  • The Court of Appeals acknowledged that the Fire Department detailed Mr. Moss’s conduct in the termination letter and in the Board’s decision but emphasized that those documents did not “specifically reference an applicable charge” other than the two charges in the Loudermill notice.
  • To the extent that the Board upheld Mr. Moss’s termination on grounds other than those two charges, the Court of Appeals held that Mr. Moss’s due process rights were violated.

The Tennessee Supreme Court, in reversing the court of appeals, concluded:

  • In determining whether Mr. Moss received proper notice of the reasons for his dismissal, we must consider both the pre-and post-termination procedures afforded to him.
  • Here, the pre-termination Loudermill notice stated that Mr. Moss had violated only the two rules dealing with a felony conviction and notification of arrest.
  • However, at the Loudermill hearing, Chief Benson and Deputy Chief Burress did not limit their questions to facts about the alleged violation of these two rules.
  • Both men questioned Mr. Moss specifically about his conduct before, during, and after the altercation at the rally.
  • They also asked him about prior incidents involving alcohol, weapons, or assaults.
  • Chief Benson’s termination letter, issued the next day, emphasized Mr. Moss’s behavior during the November 2013 altercation and his dishonest responses during the Loudermill hearing as “elements” he considered in terminating Mr. Moss’s employment.
  • The letter not only identified these grounds, but also elaborated on them by describing specific examples of objectionable conduct.
  • These examples stated the factual basis for Chief Benson’s conclusion that Mr. Moss had violated the standards of personal conduct for Fire Department employees.
  • Mr. Moss received this letter explaining the reasons for his termination nearly seven months before the … hearing before the Board.

The supreme court reversed the court of appeals decision, and remanded the case back to the court of appeals to consider Moss’ other claims that were not fully considered.

Here is a copy of the ruling:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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