Tennessee Supreme Court Upholds Firefighter Termination

The Tennessee Supreme Court has ruled that an at-will firefighter does not have an expectation of continued employment merely because a fire department’s employee handbook grants a right to appeal an adverse disciplinary action. In so ruling the court concluded that the City of Cleveland did not violate the due process rights of firefighter Joshua Keller when it terminated him in 2012.

Keller was terminated after he pled guilty to simple assault arising out of an incident that occurred at his house. He was originally charged with reckless endangerment and two counts of aggravated assault over the incident, during which he discharged a firearm.

  • Joshua Keller was hired by… Cleveland as a firefighter in December 2008. In April 2009, while Keller was still under his 6-month probationary period, he was arrested and convicted of driving under the influence while off duty.
  • The City Fire Department allowed Keller to remain employed but extended his probation for twelve months. It also asked him to undergo counseling for alcohol abuse.
  • No further incidents occurred until a little over two years later.
  • On January 22, 2012, Keller had some friends at his home. Everyone, including Keller, was drinking alcohol.
  • At some point, a fight broke out.  Keller retrieved a firearm from his bedroom and shot it more than once; no one was injured by the shots.
  • The report by the police officer who investigated the episode described Keller as “highly intoxicated.”
  • As a result of this incident, Keller was charged with reckless endangerment and two counts of aggravated assault.
  • Two days later, City Fire Chief Steve Haun sent Keller a memo informing him that he was suspended without pay until the charges were resolved, at which time the City would make a decision about his employment.
  • On January 31, 2012, to resolve the charges against him, Keller pled guilty to simple assault.  Keller informed Chief Haun of the resolution of the charges.
  • Chief Haun decided to recommend termination of Keller’s employment.
  • On February 10, 2012, Chief Haun gave Keller a copy of Chief Haun’s memo to the City Manager documenting his decision.
  • The memo recounted Keller’s work history, including the arrests and convictions, and stated:
    • I have to make the decision that is best for our Department as a whole.
    • I cannot, as Fire Chief, condone this behavior from a firefighter of the department. I have to think of the precedent that will set if I allow [ Keller] to return.
    • I would have to allow this type of behavior from the rest of the department as well as future employees and I am not prepared to lower our standards as a department to do what is easy.
    • I feel [ Keller] was shown compassion in 2009 and was allowed to continue to work for the City of Cleveland.
    • I still have compassion for [ Keller] and what dismissal will mean for his life. But I keep coming back to the realization that [ Keller] made every decision, as poor as they were, to put himself in this position. Therefore, it is my recommendation of dismissal.
  • The City terminated Keller’s employment effective February 17, 2012.

Keller appealed the termination to the city manager pursuant to a process set forth in the employee handbook. The city manager upheld the termination. Keller then appealed to the Bradley County Chancery Court asserting that the city violated his due process rights. The city countered by arguing that Keller was an at-will employee and thus not entitled to due process.

The case was remanded to US District Court for the Eastern District of Tennessee to address the US Constitutional issues. The district court agreed with the city that Keller was an at-will employee, and sent the case back to the state court, where it wound its way to the Kentucky Supreme Court. In ruling against Keller, the court stated:

  • To determine whether Keller had a constitutionally protected property interest in continued employment, we begin with the doctrine of employment at will.
  • In the absence of evidence to the contrary, employees in Tennessee are presumed to be at-will.
  • Under the employment-at-will doctrine, employment is for an indefinite period of time and may generally be terminated by either the employer or the employee at any time, for any reason, or for no reason at all.
  •  Keller does not—actually, cannot—point to language in the City personnel manual indicating that he is anything other than an employee at will.
  •  Keller does not dispute that he was given substantially all of the procedures set forth in the City personnel manual, so he does not ask the Court to require the City to afford him those procedures.
  •  Keller points to language in the City procedures stating that a dismissed employee “has the right to submit a request” for administrative review by the City Manager, and if such review is granted, the City Manager’s decision “shall be final and binding on all parties involved” unless it is appealed to the chancery court.
  • In this case…  Keller was granted the administrative review he requested, and the City Manager upheld the termination of his employment.
  •  Keller argues that these procedures, adopted by the City Council, gave him “a proprietary interest in public employment.”
  • The language on which Keller relies, in and of itself, would be a dubious basis for finding a constitutionally protected property interest.
  • As our Court of Appeals has stated, “We can conceive of no clearer way for an employer to express its intent not to be bound by an employee handbook’s provisions than the employer’s specific statement that the handbook is not a contract or that the handbook should not be construed as a contract.”
  • Without a protected property interest, he cannot assert a claim for a due process violation.
  • We hold that Keller has not shown a property interest entitled to due process protection.

Here is a copy of the decision:

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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