                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    April 22, 2004 Session

                  T. GREEN, ET AL. v. CITY OF MEMPHIS, ET AL.

               A Direct Appeal from the Chancery Court for Shelby County
             No. CH-01-1566-1    The Honorable Walter L. Evans, Chancellor



                     No. W2003-01334-COA-R3-CV - Filed July 15, 2004


         Plaintiffs, police officers along with a number of others, were promoted to sergeant after
passing a promotional test. Subsequently, the test was declared invalid by the federal court and the
city announced its intention to restore the affected officers to their previous rank pending the
administration of a new promotional test. Plaintiffs, along with others, filed suit in chancery court
to enjoin this action on the part of the city. The chancery court issued a temporary injunction,
enjoining the city from removing plaintiffs from their rank of sergeant or from reducing their pay
pending final judgment. The chancellor clarified the injunction by order which provided that the
injunction would be in effect only “until such time as promotions are made from the 2001 sergeant
promotional process.” Of the fifty-four plaintiffs in the chancery court taking the new promotional
test, the seven plaintiffs-appellants did not rank high enough for promotion. On motion of the city,
the chancery court dissolved the preliminary injunction previously issued and, by consent order,
allowed the plaintiffs full credit of time served as sergeant as a result of the first promotional
process. Plaintiffs have appealed. We affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Thomas E. Hansom of Memphis for Appellants, J. Mack, R. Burton, D. Parker, and V. NcNeil
Kathleen L. Caldwell of Memphis for Appellants, G. Bennett, L. Bennett and W. Taylor

Louis P. Britt, Thomas J. Walsh, Jr. and Mary H. Beard of Memphis for Appellees, City of Memphis
and Memphis Police Services Division

                                            OPINION


       LaFrancine Bennett, Gayniece Bennett, Wyley Taylor, J. Mack, R. Burton, D. Parker and
V. McNeil (“Appellants” or “Plaintiffs”) are employees of the City of Memphis Police Services
Division (“MPD”). In the spring of 2000, Plaintiffs were patrol officers ranking just below
sergeant. On March 20, 2000, the City of Memphis (“City”) and the MPD (together with City,
“Appellees” or “Defendants”) announced a promotional process for the sergeant rank that
consisted of a job knowledge exam, a practical test (video), and performance evaluations.
Seniority was also a factor in the promotion process. However, the City learned that the
integrity of the process had been compromised by certain officers’ obtaining the video portion
beforehand. The City proceeded with the process, but deleted the compromised portion and re-
weighted the remaining sections. The City then promoted 63 applicants to sergeant, including
these Plaintiffs.

        On July 11, 2000, two unsuccessful candidates for promotion filed suit in the United
States District Court for the Western District of Tennessee, challenging the promotional process
on several grounds and seeking a temporary restraining order against the City prohibiting the
promotion of the successful candidates to sergeant. The court denied the temporary restraining
order, and the City proceeded with the promotions on July 12, 2000.

        The City then hired an expert, Dr. Richard Jeanneret, to determine whether the modified
promotional test was valid. Dr. Jeanneret concluded that due to the tainting of the integrity of
the promotional process, the City should start over with an entirely new process. Having been
advised of Dr. Jeanneret’s findings, on June 25, 2001, the district court granted the unsuccessful
candidates’ motion for partial summary judgment, finding that the 2000 promotional process was
invalid.

        On July 3, 2001, the City informed the Plaintiffs and other successful candidates that
their promotions would be rescinded as a result of the district court’s finding that the 2000
process was invalid.1 However, the City did offer them the opportunity to draw “out-of-rank”
pay, which amounted to an additional 5% compensation over their patrol officer pay.

       On July 26, 2001, 51 sergeants, including the appellants herein, filed a petition in
Chancery Court to enjoin the City from demoting them, or in the alternative from reducing their
pay and benefits to pre-promotion levels.2

        The Chancery Court granted the injunction by Order entered August 21, 2001. This
Order directed the City “to retain [the plaintiffs] in the sergeant position for the time being, with
full pay and benefits of the rank.” On September 7, 2001, the Chancery Court entered a second
Order, which held that the injunction was to remain in effect only “until such time as promotions
are made from the [newly devised and implemented] 2001 Sergeant promotional process.”

       Due to a number of complications, the 2001 promotional process was not completed until
November 2002. As a result of that process, the City promoted 264 candidates to sergeant. Of
the 54 plaintiffs in the original Chancery Court proceedings, one did not participate in the
process and seven (appellants) did not rank high enough for promotion.

        On April 8, 2003, the City petitioned the Chancery Court to dissolve the preliminary
injunction and to allow it to return these eight officers to the rank of patrol officer. The court
granted the City’s request on the grounds that they were promoted as the result of an invalid

1
    The district court later clarified its ruling at a hearing on August 13, 2001 and made clear that it had not ordered the
City to demote the sergeants.
2
  An Amended Complaint, filed April 8, 2003, added three more plaintiffs.


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process. The court found that they did not obtain a vested property interest in their 2000
promotion, which would warrant or entitle them to any procedural due process rights before the
position was taken away. The trial court noted that it would be inequitable for the City to allow
these officers to hold their sergeant rank “in light of their failure to rank within the chosen
percentile as determined by the City to receive a promotion in the 2002 sergeant promotional
process.” The court further found that the return of the Plaintiffs to their former rank did not
constitute a demotion because the change occurred not as a result of misconduct or disciplinary
action, but rather due to what had been an invalid promotional process originally.

        On May 23, 2003, the court entered a Consent Order wherein each Plaintiff was given
full credit for time served as sergeant, and the case was concluded. Plaintiffs filed timely
appeals on May 23, 2003 (Mack, Burton, Parker and McNeil) and June 17, 2003 (G. Bennett, L.
Bennett, Taylor).

       The Plaintiffs submit two issues for review:

               1. Whether the trial court erred in ruling that the Plaintiffs do not
               have a vested interest in their promotions to the rank of sergeant.

               2. Whether the trial court erred in holding that Plaintiffs have no
               right to a hearing before being demoted.

       The trial court’s rulings that the Plaintiffs do not have a vested property interest in their
promotions and that the Plaintiffs have no right to a hearing before being demoted are questions
of law. As such, our review of the trial court’s order is de novo upon the record with no
presumption of correctness accompanying the trial court’s conclusions of law. See Tenn. R.
App. P. 13(d); Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998); Sims v. Stewart,
973 S.W.2d 597, 599-600 (Tenn. Ct. App. 1998).

        The Plaintiffs’ constitutional claim of deprivation of a property interest without due
process depends first on whether they have a vested property right in employment as sergeants.
See Board of Regents v. Roth, 408 U.S. 564, 576-578 (1972); Reagan v. United States, 182 U.S.
419, 425 (1901). If the Plaintiffs have such a property interest, the City cannot deprive them of
this right without procedural due process. Cleveland Bd. of Education v. Loudermill, 470 U.S.
532, 538 (1985); see Goss v. Lopez, 419 U.S. 565, 573-574 (1975). We will now address each of
the Plaintiffs’ issues in turn.

I. Do the Plaintiffs have a vested property interest in their promotions to the rank of
sergeant?

        To sustain a due process claim, the Plaintiffs must demonstrate that they have a property
interest sufficient to trigger the procedural safeguards. Roth, 408 U.S. at 571-573. Following
the United States Supreme Court, the Tennessee Supreme Court has defined constitutionally-
protected property interests as follows:




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               The Fourteenth Amendment’s procedural protection of
               property safeguards the security of interests that a person
               has already acquired in specific benefits. Roth, 408 U.S. at
               576, 92 S.Ct. at 2708. Property interests are not created by
               the federal constitution. Instead they are created and
               defined “by existing rules or understandings that stem from
               an independent source such as state law.” Roth, 408 U.S.
               at 577, 92 S.Ct. 2709. To be entitled to procedural due
               process protection, a property interest must be more than a
               “unilateral expectation” or an “abstract need or desire.” It
               must be a “legitimate claim of entitlement” to a specific
               benefit. Id. Indeed it is the purpose of the ancient
               institution of property to protect those expectations upon
               which people rely in their daily lives.

Rowe v. Bd. of Educ. of the City of Chattanooga, 938 S.W.2d 351, 354 (Tenn. 1996).

        In support of their argument, Plaintiffs offer much case law for the proposition that they
have a property interest in their sergeant rank. However, in each of these cases, the existence of
a property interest was not at issue or was established by statute. Consequently, the cases cited
are not relevant to the present discussion. See Cooper v. Williamson County Bd. of Educ., 803
S.W.3d 200 (Tenn. 1990) (protection of teacher’s tenure by statute created property right); Case
v. Shelby County Civ. Serv. Merit Bd., 98 S.W.3d 167 (Tenn. Ct. App. 2002) (involved statute
granting property right to employee requiring termination only with just cause).

         Plaintiffs have also failed to show that rules or understandings “secure certain benefits
and . . . support claims of entitlement to those benefits.” Roth, 408 U.S. at 577. As early as the
June 25, 2001 Order from Judge McCalla declaring that the 2000 promotional process was
invalid, the Plaintiffs were on notice that their positions may not be permanent. Furthermore, on
July 3, 2001, the City advised the Plaintiffs that their promotions would be rescinded due to the
invalidity of the 2000 test. That the Plaintiffs were aware that their tenure as sergeant was
potentially limited evidences the absence of any constitutionally protected property interest and
does not demonstrate a “unilateral expectation” that they would remain sergeants without
completing the valid test completed in 2002. Rowe, 938 S.W.2d at 354; see Roth, 408 U.S. at
578 (college professor on notice that his position was limited in duration has no property interest
in his position to merit procedural due process protection).

        Plaintiffs are correct in asserting that the Memphis City Code of Ordinances provides
property interest rights in one’s position in certain situations. For example, § 9-41 authorizes the
City to “terminate, suspend, or demote an employee for just cause, and the employee shall be
given a written notice of the reasons for the action.” Like the statute cited in Case v. Shelby
County Civ. Serv. Merit Bd., employees terminated, suspended, or demoted for just cause have a
property right in their position. This property right is given due process protection by having the
termination, suspension, or demotion “appealable to the civil service commission as provided for
in this chapter.” Memphis City Code of Ordinances, § 9-41. However, the parties have
stipulated that § 9-41 only applies to terminations, suspensions, and demotions which were the



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result of discipline.3 Therefore, those officers that have been terminated, suspended or demoted
as a result of discipline have been given the right to a Loudermill-type hearing. However, the
present case does not involve terminations, suspensions, and demotions as the result of
discipline, but rather reassignment as the result of an invalid test. Therefore, § 9-41 of the
Memphis City Code of Ordinances does not create property interests in the Plaintiff’s promotion
to sergeant as the result of an invalid test.

        Indeed, we have held that employees do not have property interests in their positions in
the most factually analogous cases. In Howell v. City of Columbia, No. M2001-00620-COA-
R3-CV, 2002 Tenn. App. LEXIS 743 (Tenn. Ct. App. Oct. 16, 2002), this Court rejected the due
process claim of a police officer demoted to patrol officer. In that case, the City created a new
department and named as its Deputy Chief the plaintiff. Four years later, the City abolished the
department and the plaintiff’s Deputy Chief position. In rejecting the plaintiff’s claim of a due
process violation, we noted that the plaintiff did not have a property interest in either his rank or
salary, as the City had the authority to create and abolish departments and individual positions.

        Similarly, we held in Miller v. City of Murfreesboro, 122 S.W.3d 766 (Tenn. Ct. App.
2003), cert. denied, M2001-01478-SC-R11-CV, 2003 Tenn. Lexis 1269 (Tenn. 2003), that the
City of Murfreesboro could demote police officers from the rank of detective to patrol officer as
a part of a major department reorganization. Claims from the police officers that the City had
violated their due process rights were without merit, as the plaintiffs “have no protected property
interest such as would require due process considerations.” Id. at 775.

        Constitutionally-protected property interests are created and defined by rules or
understandings stemming from state law. Rowe, 938 S.W.2d at 354. The Plaintiffs have not
shown any rules or understandings to support their claim of a property interest in their rank as
sergeants. In fact, precedent and city ordinances undermine that claim. Therefore, we hold that
the Plaintiffs have no property right in their rank as sergeants.

II. Do the Plaintiffs have a right to a hearing before being returned to their patrol officer
positions?

       Where a particular state law, rule or understanding secures property interests, courts have
quickly moved to the second prong of the due process analysis: whether the parties were
afforded the “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545,
554 (1965)). This “opportunity to be heard” is guaranteed by a full and fair hearing prior to the
deprivation of a vested property right. Loudermill, 470 U.S. at 538. Because the Plaintiffs have
not been deprived of a vested property right, they have no right to a Loudermill hearing.
III. Conclusion

        To sustain a due process claim, the Plaintiffs must demonstrate that they have a property
interest sufficient to trigger the procedural safeguards. Roth, 408 U.S. at 571-573. Such

3
 The Plaintiffs did pursue their complaint in the City’s Civil Service Commission. However, because they had not been
terminated, suspended, or demoted as the result of discipline, the Commission ruled that it lacked jurisdiction to hear
their complaints.


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property interests originate in state law, rules or understandings. Rowe, 938 S.W.2d at 354.
Because Plaintiffs have not put forth sufficient state law, rules or understandings in support of
their claim of a property interest and because case law is in conflict with that claim, we find that
Plaintiffs do not have a property interest in their rank of sergeant rising to the level of
constitutionally protected property rights.

        The trial court did not err in holding that the Appellants do not have a vested interest in
their promotions to the rank of sergeant and, therefore, have no right to a Loudermill hearing.
Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed
equally to the Appellants, LaFrancine Bennett, Gayniece Bennett, Wyley Taylor, J. Mack, R.
Burton, D. Parker and V. McNeil, and their respective sureties.




                                              __________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE,
W.S.




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