                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    March 3, 2005 Session

VANESSA SIRCY v. METROPOLITAN GOVERNMENT OF NASHVILLE
            AND DAVIDSON COUNTY, TENNESSEE

                  Direct Appeal from the Circuit Court for Davidson County
                           No. 02C-768    Walter C. Kurtz, Judge



                      No. M2004-00405-COA-R3-CV - Filed May 3, 2005


This is a breach of contract action involving employment with a government municipality. In this
case, the defendant municipality offered the plaintiff a job as a dispatcher at an annual salary of
approximately $30,000, and the plaintiff accepted the position. Meanwhile, the defendant underwent
job reclassifications and salary restructuring. On the second day of the plaintiff’s employment with
the defendant, she was informed that she would be paid an annual salary of approximately $24,000.
After working for approximately five and one-half months for the defendant, the plaintiff resigned,
citing the uncertainty regarding whether the defendant would adjust her salary, as they had suggested.
Following her resignation, the plaintiff brought this action. Following a bench trial, the trial court
determined that the defendant had made promises of employment at a certain salary that induced the
plaintiff to resign her position at her former employment, and the defendant had breached those
promises. As a result, the trial court found that the plaintiff had suffered damages in the amount of
$16,500. The defendant has appealed the judgment of the trial court. Because we conclude that the
trial court erroneously calculated damages, we modify the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
                                Modified; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY
M. KIRBY , J., joined.

J. Brooks Fox and John Kennedy, Nashville, Tennessee, for the Appellant, Metropolitan Government
of Nashville and Davidson County, Tennessee.

Shelley I. Stiles and John A. Barney, Brentwood, Tennessee, for the Appellee, Vanessa Sircy.
                                             OPINION

                          Factual Background and Procedural History

        In March of 1998, Vanessa Sircy (“Ms. Sircy”) began working at Vanderbilt Medical Center
(“Vanderbilt”) as a patient care technician. Sometime around the beginning of 2001, the
Metropolitan Government of Nashville and Davidson County (“Metro”) posted on-line a job opening
for the position of “Fire/EMT Dispatcher” at a stated annual salary of $29,998. On or about January
14, 2001, Ms. Sircy applied for the position through an on-line application. Metro contacted Ms.
Sircy, and she interviewed for the position with a panel of Metro officials, including Chief Mary
Kathleen Whisenant (“Chief Whisenant”), the superintendent of communications who oversaw all
dispatchers for the Fire Department and Emergency Medical Systems. Chief Whisenant telephoned
Ms. Sircy a couple of weeks after the interview to inform Ms. Sircy that Metro intended to offer her
the position, pending the successful completion of pre-employment testing. After Ms. Sircy passed
these tests, Chief Whisenant again called Ms. Sircy to offer her the job as Fire/EMT Dispatcher,
which she accepted.

        In the meantime, however, Metro had commissioned a study regarding job classifications and
salary structure (the “Mercer Study”). The findings of the Mercer Study were released in April of
2001. Based on the recommendations of the Mercer Study, new hires for the position of Fire/EMT
Dispatcher were to be classified as “Emergency Telecommunicator One” (“ECO 1”) and be paid a
significantly lower salary than that paid to existing Fire/EMT Dispatchers. Existing Fire/EMT
Dispatchers were grandfathered into the position of “Emergency Telecommunicator 3” (“ECO 3”)
and were given a significant increase in salary. The changes imposed as a result of the Mercer Study
created a level of uncertainty within Metro regarding Ms. Sircy’s prospective employment status.
In addition to being uncertain whether Ms. Sircy would be hired as a Fire/EMT Dispatcher or as an
ECO 1, Metro was unsure what salary she would be paid.

        Despite the confusion surrounding Ms. Sircy’s position, Chief Whisenant was directed by
her immediate supervisor, Chief Poole, not to tell Ms. Sircy about the potential job reclassification.
However, around this same time, Ms. Sircy met with Michelle Smith (“Ms. Smith”), an
administrative assistant to Chief Poole, to complete some paper work. In her testimony, Ms. Smith
stated that she told Ms. Sircy and other applicants at “a meeting” that the status of the job position
was in doubt. However, Ms. Smith gave conflicting testimony regarding whether she told Ms. Sircy
and the other applicants about a potential reduction in salary. Ms. Sircy testified that she could not
remember any such meeting where she was informed by Ms. Smith about the confusion regarding
the position and pay.

        The changes imposed as a result of the Mercer Study took effect on the effective date Ms.
Sircy was to begin her employment with Metro, July 1, 2001. The job reclassification eliminated
the position of Fire/EMT Dispatcher, and that position was thereafter known as “ECO 3” and paid
an annual salary of $37,200. After resigning from her job at Vanderbilt, Ms. Sircy began her
employment with Metro on Monday, July 2, 2001. On her second day, Ms. Sircy discovered that she


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had been hired as an ECO 1, rather than a Fire/EMT Dispatcher. In addition, she learned that she
would not be paid the advertised salary of $29,998, but, instead, she would be paid an annual salary
of $23,949, although she performed the same duties as those performed by an ECO 3. Metro was
also unable to inform Ms. Sircy about the department’s policy regarding salary increases for the
position of ECO 1.

        Soon after learning about the change in position and salary, Ms. Sircy attempted to have this
matter resolved by speaking with different officials within Metro. She met with Chief Whisenant,
and in response to Chief Whisenant’s inquiry, Chief Poole stated that Ms. Sircy “could take it or
leave it.” Ms. Smith testified that she was not surprised that Ms. Sircy was upset because, as she
stated in her testimony, “everybody thought they were going to be dispatchers.” During that same
time, Ms. Sircy contacted Kevin Neville, the union representative, who informed her that he could
not represent her because she was not an employee of the Fire Department. She also e-mailed Chief
Meador, a high ranking Chief within the department, who assured her that he would keep her
apprised of her situation, but he never responded further. In the following weeks and months, Chief
Whisenant consistently assured Ms. Sircy that officials within Metro were working towards resolving
this matter.

       After working approximately five and one-half months as an ECO 1, Ms. Sircy resigned from
Metro on December 13, 2001. Her resignation letter provided as follows:

        Please accept this as my resignation from my position with the Nashville Fire
        Department. Due to the events that took place after I was hired[,] concerning my
        position and salary, I am unable financially to continue with the department. Since
        no decisions have been made about my pay or about the current scale I am working
        under, I am also unable to make an informed decision about my future situation.

                                                     /s/ Vanessa D. Sircy 12/13/01

After resigning from Metro, Ms. Sircy was able to obtain the same position she once held at
Vanderbilt. However, because she took the job with Metro and left Vanderbilt, she lost the benefits
she once enjoyed as senior member in her department. She was required to work weekend and
holiday shifts for a year, where she once enjoyed preference in scheduling. Additionally, her new
position with Vanderbilt was for fewer hours per week and provided less opportunity to work
overtime shifts. She also missed one scheduled pay increase due to taking the position with Metro.
Finally, Ms. Sircy lost the three and one-third years of credit which she had accrued towards
education benefits at Vanderbilt University.1

       On March 19, 2002, Ms. Sircy filed her complaint. Following a bench trial, the trial court
entered a thirteen page memorandum and order finding that Metro had breached its promise of


        1
         Ms. Sircy testified that once an employee had worked at Vanderbilt for five years, Vanderbilt would pay for
one-hundred (100%) percent of both the employee’s and the employee’s children’s college tuition.

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employment to Ms. Sircy. In its order, the trial court found that “[Metro] offered Ms. Sircy a definite
job with a definite pay under circumstances that it should have known would cause her to
detrimentally change her employment with Vanderbilt.” The trial court went on to state that
“[Metro] breached its promise to Ms. Sircy and must be responsible to her for contract damages.”
The trial court awarded Ms. Sircy $16,500 in damages, and, from this order, Metro appeals.

        On appeal, Metro presents the following issues, as restated, for our review: (1) whether the
trial court erred by finding Metro liable for breach of “contract by estoppel” or “implied contract,”
and (2) whether the trial court erred in its calculation of damages.

                                        Standard of Review

        In matters tried by a judge sitting without a jury, we review the trial court’s findings of fact
de novo upon the record, accompanied by a presumption of correctness. Tenn. R. App. P.
13(d)(2004). Those findings of fact will be affirmed unless contradicted by a preponderance of the
evidence. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). Where the trial court’s
factual conclusions rest on the evaluation of a witness’s credibility, we will not re-evaluate that
assessment of witness credibility absent clear and convincing evidence to the contrary. See Wells
v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). However, we review a trial court’s
conclusions on questions of law under a pure de novo standard, and no presumption of correctness
attaches to such conclusions. Bowden v. Ward, 275 S.W.3d 913, 916 (Tenn. 2000).

                                    Contract Liability of Metro

         The parties frame the issues in terms of promissory estoppel. However, after reviewing the
facts alleged in the complaint, we are satisfied that the gravamen of the complaint states a cause of
action for breach of contract. Further, the evidence presented at trial demonstrates that this is a
breach of contract action.

        In this case, the following facts are essentially undisputed. Metro advertised the opening for
the Fire/EMT Dispatcher position at a salary of $29,998 per year. Ms. Sircy interviewed for that
position. She was offered the Fire/EMT Dispatcher job, and she accepted. After she arrived at her
new job, she was informed that she would not be paid the salary she had been promised. In order
to take the position at Metro, Ms. Sircy resigned her position with Vanderbilt, thus forfeiting a
number of accrued benefits. The trial court found that Metro had breached its promise to Ms. Sircy
and, as a result, should be liable for contract damages.

         Based on its theory that this is purely an “estoppel” or “implied contract” case, Metro argues
that it cannot be held liable under an estoppel theory because it did not take “affirmative action that
clearly induced [Ms. Sircy] to act to her detriment.” See Bledsoe County v. McReynolds, 703 S.W.2d
123, 125 (Tenn. 1985). Metro relies almost exclusively on the testimony of Ms. Smith for its
argument that Ms. Sircy was not “clearly induced” to take the position. Ms. Smith testified that,
prior to beginning her employment, Ms. Sircy was informed about the possibility of a job


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reclassification. However, in our review of Ms. Smith’s testimony, she appears to give conflicting
answers regarding whether she informed Ms. Sircy about the change in salary. At one point, Ms.
Smith testified that she communicated to Ms. Sircy and the other applicants that Metro was “not
sure” about the pay change, and “it could be this at this salary or this at this salary.” However,
despite the foregoing testimony, she later stated, “I didn’t tell them the salary one way or the other.
The position, I did.” Metro contends that any inducement to leave Vanderbilt and take the position
with Metro was negated by the statements of Ms. Smith to Ms. Sircy and the other applicants.

       After hearing the testimony of the witnesses, the trial court found that Ms. Sircy was not
informed of the change in position and salary until after she began her employment with Metro. In
its memorandum and order, the trial court found that Ms. Smith’s testimony did not change this
finding. As the trial court explained:

       while Ms. Smith may have stated that there was some confusion about the job
       description, there was no mention about a change in pay nor any mention about a
       change in responsibility. Whatever Ms. Smith’s statements were, they were not
       sufficiently definite to put Ms. Sircy on notice that her pay or responsibilities were
       going to be changed after she reported to work.

There is disputed testimony in the record regarding whether and to what extent Ms. Sircy was
informed about the changes prior to taking the job at Metro. In addition, there is ample evidence to
show that she was not so informed. Therefore, upon review of the record, we conclude that the
evidence does not preponderate against the trial court’s findings. Accordingly, we affirm the trial
court’s conclusion that Metro is liable to Ms. Sircy for breach of contract.

                                              Damages

        Having determined that Metro is liable for breach of contract, we turn to the issue of
damages. In its memorandum and order, the trial court stated that it was approaching the award of
damages as if this was a case involving the wrongful termination of an at-will employee. In so
doing, the trial court awarded Ms. Sircy $6,500 for “back pay” and $10,000 for “front pay,” for a
total award of $16,500. Our research, however, has revealed no authority for such a “hybrid”
approach to an award of damages. In our opinion, this is a breach of contract case. Accordingly, we
will review the trial court’s damages award in view of that determination.

        Metro first insists that the trial court erred by not measuring damages by the amount of unjust
enrichment to Metro. Metro contends that, if damages were measured by the amount that Metro was
unjustly enriched, Ms. Sircy has suffered no damages because Metro paid Ms. Sircy the market rate
for her services. In support of its argument, Metro relies primarily on the cases of City of Lebanon
v. Baird, 756 S.W.2d 236 (Tenn. 1988) and Brown v. City of Manchester, 722 S.W.2d 394 (Tenn.
Ct. App. 1986).




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         Metro contends that Baird stands for the proposition that, in determining the appropriate
damages remedy in cases involving municipalities, the law distinguishes between whether the
contract was performed or in the executory stage. We disagree with Metro’s interpretation of Baird.
First, the guiding issue in Baird involved a determination of whether the City of Lebanon’s act of
contracting with the defendant was ultra vires. Baird, 756 S.W.2d at 243–44. It was only in the
context of this discussion involving ultra vires contracts that the court addressed the distinction
between executory contracts and performed contracts. Id. In the case at bar, there is no issue as to
whether the act of hiring Ms. Sircy was ultra vires, and we think this fact alone distinguishes Baird
from this case. Further, the Baird court was determining whether an estoppel could be applied under
the facts of that case, but at no point in that discussion did the court state that the appropriate remedy
should be based on a theory of unjust enrichment. See id. at 245.

        Metro also contends that the trial court misapplied the case of Brown v. City of Manchester.
See Brown, 722 S.W.2d at 394. In Brown, the plaintiff sued the city seeking the recovery of certain
overtime compensation, which the mayor had allegedly offered through a letter circulated through
the various city departments. Id. at 395. The trial court in Brown granted the City of Manchester
summary judgment on the theory that the plaintiff could not recover because the mayor was without
authority to bind the city under the facts of that case. Id. at 396. Thus, Brown also involved an ultra
vires action by a government official, and is thus distinguishable on that fact alone. However, in
vacating the summary judgment, this Court merely recognized that, despite ultra vires conduct and
the lack of an express contract, a city may be held liable under theories of quantum meruit or
estoppel. Id. at 397. In Brown, we made no pronouncement, as Metro suggests, that the appropriate
remedy, in all cases similar to the one before us, is damages based on a theory of unjust enrichment.

        Turning to the case at bar, in its award of $6,500 for “back pay,” the trial court described that
amount as “[t]he difference between what the plaintiff was promised and what she received for the
five (5) months she worked.” The record reflects, however, that this amount represents the
difference in pay between what an ECO 1 and an ECO 3 earned under the newly imposed salary
structure. Ms. Sircy was promised and accepted the position of Fire/EMT Dispatcher at the salary
rate of $29,998 per year, not the figure of $37,200, which the position of ECO 3 received after the
Mercer Study changes went into effect. Therefore, Ms. Sircy’s damages for back pay should be
calculated based on the salary to which she agreed to accept the position, $29,998. For
approximately twenty-four weeks, Ms. Sircy worked at the pay rate of $23,949, earning $11,053.44.
If she had been paid at the salary of $29,998, she would have earned $13,845.10 in those twenty-four
weeks. Thus, the difference between what Ms. Sircy was promised and what she received was
$2,971.68, rather than the $6,500 figure arrived at by the trial court.

       In addition to its award of “back pay,” the trial court awarded Ms. Sircy $10,000 in “front
pay.” In determining this figure, the trial court merely stated that it was applying the criteria set forth
in Sasser v. Averitt, 839 S.W.2d 422, 433–34 (Tenn. Ct. App. 1992). Sasser is a retaliatory
discharge case and, as we alluded to above, has no application to this breach of contract case. As
heretofore stated, Metro breached the contract with Ms. Sircy and she is entitled to recover damages



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resulting from that breach, which would not include “front pay.” Therefore, we modify the judgment
of the trial court to reflect that Ms. Sircy suffered damages in the amount of $2,971.68.

                                          Conclusion

       For the foregoing reasons, we affirm the trial court’s judgment as modified. Costs of this
appeal are taxed equally between the Appellant, The Metropolitan Government of Nashville and
Davidson County and its surety, and the Appellee, Vanessa Sircy.



                                                     ___________________________________
                                                     DAVID R. FARMER, JUDGE




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