       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0180P (6th Cir.)
                File Name: 00a0180p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                   ;
                                    
GERALD M. BROWN; NICK D.
                                    
ANDERSON,
                                    
       Plaintiffs-Appellants,
                                    
                                       No. 99-5749

                                    
            v.                       >
                                    
                                    
                                    
CITY OF NIOTA, TENNESSEE;

                                    
L. S. LEE; EVA BRAKEBILL;
                                    
ALAN WATKINS; JOEL
                                    
PARHAM,
         Defendants-Appellees. 
                                  1
        Appeal from the United States District Court
   for the Eastern District of Tennessee at Chattanooga.
     No. 98-00064—Curtis L. Collier, District Judge.
                Argued: April 27, 2000
           Decided and Filed: May 31, 2000
Before: KENNEDY, SILER, and BATCHELDER, Circuit
                    Judges.




                            1
2    Brown, et al. v. City of Niota,              No. 99-5749      No. 99-5749               Brown, et al. v. City of Niota,    11
     Tennessee, et al.                                                                                    Tennessee, et al.

                    _________________                              plaintiffs’ claim that they were deprived of liberty without due
                                                                   process of law.
                         COUNSEL
                                                                                          III. Conclusion
ARGUED:          Peter Alliman, WHITE, CARSON, &
ALLIMAN, Madisonville, Tennessee, for Appellants. H.                 For the foregoing reasons, we affirm the judgment of the
Chris Trew, HIGGINS, BIDDLE, CHESTER & TREW,                       district court.
Athens, Tennessee, for Appellees. ON BRIEF: Peter
Alliman, WHITE, CARSON, & ALLIMAN, Madisonville,
Tennessee, for Appellants. H. Chris Trew, HIGGINS,
BIDDLE, CHESTER & TREW, Athens, Tennessee, William
A. Buckley, Jr., Athens, Tennessee, for Appellees.
                    _________________
                        OPINION
                    _________________
   KENNEDY, Circuit Judge. Plaintiffs, Gerald M. Brown
and Nick D. Anderson, appeal the district court’s decision to
grant summary judgment in favor of the defendants, City of
Niota, et al., in this section 1983 action. On appeal plaintiffs
raise two issues: (1) whether the board of commissioners’
promulgation of employee rules and regulations created a
property interest in continued employment with the City of
Niota entitling the plaintiffs to notice and a hearing prior to
termination; and (2) whether the plaintiffs’ filing of this
lawsuit before the defendants received actual notice of the
plaintiffs’ desire for a name-clearing hearing bars the
plaintiffs from claiming that the defendants deprived them of
their liberty interests without due process of law. We affirm
the decision of the district court.
                           I. Facts
  Plaintiff Brown was employed as a full-time police officer
with the City of Niota beginning in October, 1994, and
plaintiff Anderson was employed as a part-time reserve
officer beginning in November, 1993. During the course of
their employment with the city, the plaintiffs became involved
10       Brown, et al. v. City of Niota,                    No. 99-5749         No. 99-5749              Brown, et al. v. City of Niota,    3
         Tennessee, et al.                                                                                            Tennessee, et al.

process of law because they had not been denied a name-                         in an investigation of a resident named Michael Cardin. On
clearing hearing by the city.                                                   December 23, 1997, Cardin confronted Brown and in the
                                                                                course of this confrontation, Brown pushed Cardin. On
   The plaintiffs mailed a letter to the mayor of Niota on                      December 29, 1997, Brown was contacted by the chief of
February 12, 1998, requesting the mayor’s response to their                     police, defendant Parham, and informed that he was no longer
demand for a name-clearing hearing by February 16, 1998. It                     a city employee.
is undisputed that the mayor did not receive the letter until
February 17, 1998. By that date, the plaintiffs, apparently                        On January 12, 1998, the Niota board of commissioners
assuming that no response should be interpreted as a denial,                    held a board meeting at which they discussed Brown’s
filed this action in federal court. In their complaint, they                    employment. Defendant Lee made a motion to dismiss
alleged that they had suffered liberty deprivations without due                 Brown from his employment with the police department. Lee
process. To support these allegations the plaintiffs alleged                    stated that a vote of the commissioners was needed to make
that the statements at the board meeting were false and                         the employment decision legal. The City of Niota had
defamatory and that they requested a name-clearing hearing                      promulgated employee rules and regulations which stated that
which was denied. Once a plaintiff has satisfied the five                       a city employee could be dismissed only by a vote of the
elements of the Ludwig test, he is entitled to a name-clearing                  board of commissioners. After a heated discussion, in which
hearing “when plaintiff has made a request for such a                           the shoving incident was mentioned as the primary reason for
hearing.” Ludwig, 123 F.3d at 410. In Ludwig, the court                         dismissal, the commissioners voted 3 to 2 to dismiss Brown.
found that the plaintiff’s letter had not clearly stated the                    They also agreed to award him back pay from December 29,
plaintiff’s desire for a name-clearing hearing; therefore, the                  1997 until January 12, 1998. The notice of separation stated
plaintiff’s request for relief was denied because he could not                  that he was dismissed for unsatisfactory behavior.
show that he had been denied a name-clearing hearing. Id. at                    Immediately after this termination decision was made,
411. Although plaintiffs’ request was clearly stated in their                   defendant Lee made a motion to dismiss Anderson with the
letter, this letter was not received by the mayor until February                stated reason being “conflict of interest.” Anderson was
17, 1998. The plaintiffs filed their complaint that same day.                   employed by both the Fire and Police Departments at that
As of the filing of the complaint, the plaintiffs could not show                time. Also, his wife was a commissioner on the board.
that they had been denied a name-clearing hearing because                       Defendant Lee stated that the conflict was due to his wife’s
they could not show that      the defendants were aware of their                being on the board, but when the mayor assumed that the
desire for this hearing.3 Because plaintiffs must request a                     basis for the motion was Anderson’s employment with both
name-clearing hearing and be denied this hearing before they                    the police and fire departments, none of the commissioners
have suffered a deprivation of their liberty interest without                   contradicted her. The motion to dismiss Anderson was
due process of law we believe the district court was correct in                 passed by a 3 to 2 vote.
granting the defendant’s summary judgment motion on the
                                                                                  On February 12, 1998, plaintiffs mailed a letter to the
                                                                                mayor of Niota requesting a name-clearing hearing arising out
                                                                                of the comments made at the board meeting. The letter stated
                                                                                that the mayor should notify the plaintiffs of her decision by
     3
      There is no evidence in the record to indicate that the plaintiffs ever   February 16, 1998. If the plaintiffs had not heard from the
renewed their request for a name-clearing hearing and were denied this          mayor by that date, the letter stated that they would take
hearing by the city.
4       Brown, et al. v. City of Niota,                  No. 99-5749        No. 99-5749               Brown, et al. v. City of Niota,        9
        Tennessee, et al.                                                                                          Tennessee, et al.

further action. The mayor did not receive the letter until                  that must be satisfied to establish that a plaintiff was deprived
February 17, 1998. By that time, the plaintiffs had filed a                 of a liberty interest entitling the plaintiff to a name-clearing
complaint against the city and its commissioners and the                    hearing:
mayor never    responded to the plaintiffs’ request for a
hearing.1 On May 5, 1998, the district court granted                          First, the stigmatizing statements must be made in
defendants’ motion for summary judgment on all of plaintiffs’                 conjunction with the plaintiff’s termination from
federal claims and declined to exercise its supplemental                      employment. . . . Second, a plaintiff is not deprived of his
jurisdiction over plaintiffs’ state law claims. The plaintiffs                liberty interest when the employer has alleged merely
timely appealed.                                                              improper or inadequate performance, incompetence,
                                                                              neglect of duty or malfeasance. . . . Third, the
                           II. Discussion                                     stigmatizing statements or charges must be made public.
                                                                              Fourth, the plaintiff must claim that the charges made
   Plaintiffs contend that the district court erred in finding that           against him were false. Lastly, the public dissemination
the defendants were entitled to summary judgment on the                       must have been voluntary.
plaintiffs’ claims that they were deprived of their property and
liberty interests without due process of law by the termination             123 F.3d at 410 (internal citations omitted). Once a plaintiff
proceedings conducted by the board of commissioners. This                   has established the existence of all five elements, he is
court reviews a district court’s decision to grant summary                  entitled to a name-clearing hearing if he requests one. Id.
judgment de novo. See Soper v. Hoben, 195 F.3d 845, 850                     Both plaintiffs argue that statements made by the
(6th Cir. 1999). If there are no material factual disputes and              commissioners during the board meeting infringed on their
the moving party is entitled to judgment as a matter of law,                liberty interests in their reputations. In particular, plaintiff
we will affirm the district court’s judgment. See Fed. R. Civ.              Brown points to statements regarding the shoving incident
P. 56(c). In reviewing the defendants’ summary judgment                     with Mike Cardin and the discussion of other undisclosed
motion this court must construe the evidence and make all                   prior incidents, while plaintiff Anderson directs our attention
inferences in a light most favorable to the non-moving party.               to the board’s statement he was involved in a conflict of
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106                  interest. Plaintiffs contend that these statements “create[d] a
S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).                                    false and defamatory impression . . . in connection with
                                                                            [their] termination.” Chilingirian, 882 F.2d at 205.
                        A. Property Interest                                Assuming that the board’s comments were stigmatizing and
                                                                            that the plaintiffs were entitled to a name-clearing hearing had
  Plaintiffs argue that they had a property interest in                     one been denied, we still do not believe that the plaintiffs
continued employment with the City of Niota. Because the                    were deprived of their liberty interests without due process of
board dismissed them from employment without notice and                     law. Because the city did not receive notice of the plaintiffs’
an opportunity to be heard prior to the effective date of                   desire for a name-clearing hearing prior to the initiation of
                                                                            this lawsuit we believe that the district court was correct in
                                                                            granting summary judgment in favor of the defendants. At
    1                                                                       the time this complaint was filed, the plaintiffs had not
      The plaintiffs’ complaint was filed the same day that the mayor
received the letter, March 17, 1998. The plaintiffs filed their complaint   suffered a deprivation of their liberty interest without due
in the afternoon and the mayor did not receive her mail until the early
evening.
8     Brown, et al. v. City of Niota,              No. 99-5749      No. 99-5749               Brown, et al. v. City of Niota,     5
      Tennessee, et al.                                                                                    Tennessee, et al.

   If we were willing to accept the plaintiffs’ argument that the   termination they contend that they were denied due process of
board’s rule on termination creates an employment contract          law. See Board of Regents v. Roth, 408 U.S. 564, 570 n.7, 92
between the city and the plaintiffs, the plaintiffs still cannot    S.Ct. 2701, 2705 n.7, 33 L.Ed.2d 548 (1972) (“Before a
establish that they had a property interest in continued            person is deprived of a protected interest, he must be afforded
employment because this contract does not provide a definite        opportunity for some kind of a hearing.”). Plaintiffs base
term of employment. Tennessee courts have held that “[t]he          their property interest on an employee rule promulgated by
law is well established in this state that a contract for           the board. This rule states that “[a] city employee may be
employment for an indefinite term is a contract at will and can     terminated for any just cause at the discretion of the board.”
be terminated by either party at any time without cause.”           Plaintiffs contend that this statement modified their
Bringle v. Methodist Hosp., 701 S.W.2d 622, 625 (Tenn. Ct.          employment at-will and established a contractual right to
App. 1985); see also Graves v. Anchor Wire Corp., 692               termination only for just cause.
S.W.2d 420, 422 (Tenn. Ct. App. 1985). While the Reed
court found that the employee handbook created a contract             To establish a claim for deprivation of property without due
and restricted the employer from terminating the employee           process of law, plaintiffs must establish that they had a
without just cause, the handbook also created a contract for a      property interest in continued employment with the city.
definite time period. The employee handbook in Reed
provided that the employment relationship would be for a              “Whether a property interest exists is not determined by
term of one year to be renewed annually unless the employee           reference to the Constitution; rather, property interests
voluntarily resigned or was terminated for just cause. 4              are ‘created and their dimensions are defined by existing
S.W.3d at 688. Because the plaintiffs have pointed to no rule         rules or understandings that stem from an independent
or regulation that defines the duration of the contractual            source such as state law – rules or understandings that
relationship between the city and its employees they have not         secure certain benefits and that support claims of
rebutted the presumption that they were employees at will.            entitlement to those benefits.’”
The plaintiffs did not have a protected property interest in
their continued employment with the city; therefore, we             Ludwig v. Board of Trustees, 123 F.3d 404, 409 (6th Cir.
affirm the district court’s decision to grant defendant’s motion    1997). Tennessee has long recognized the doctrine of
for summary judgment on plaintiffs’ property interest claim.        employment at will, with the mutual right of either party to
                                                                    terminate such a relationship with or without cause. See
                      B. Liberty Interest                           Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555 (Tenn.
                                                                    1988). Plaintiffs acknowledge this doctrine, but argue that
  Plaintiffs also argue that they had a liberty interest that was   their at-will employment was modified by the city’s
violated by the defendants during the January 12, 1998, board       promulgation of the rule governing the termination of city
meeting. “[A] person’s reputation, good name, honor, and            employees. “Under Tennessee law, what would otherwise be
integrity are among the liberty interests protected by the due      an at-will contract may be modified by specific language
process clause of the fourteenth amendment.” Chilingirian v.        which evidences an intent to modify the existent employment
Boris, 882 F.2d 200, 205 (6th Cir. 1989). A deprivation of          contract.” Shelby v. Delta Airlines, Inc., 842 F. Supp. 999,
any of those interests “must be accompanied by notice and an        1006 (M.D. Tenn. 1993). Plaintiffs contend that the rule
opportunity to be heard to refute any charges against that          modifies their employment and prohibits termination without
person.” Id. In Ludwig, this Circuit identified five elements       just cause.
6    Brown, et al. v. City of Niota,            No. 99-5749      No. 99-5749                   Brown, et al. v. City of Niota,          7
     Tennessee, et al.                                                                                      Tennessee, et al.

   While plaintiffs are not incorrect in arguing that at-will    Reed court announced a high standard for establishing the
employment can be modified by language evidencing an             existence of an employer’s specific intent to be bound by the
intent on the part of the employer to modify the employment      terms of an employee handbook and that the plaintiffs have
relationship, we do not agree with the plaintiffs that the       not satisfied this standard.
employee rules and regulations promulgated by the Niota
board evidence the city’s intent to modify the employment           The rule concerning employee termination contains the
relationship. We accept the plaintiffs’ contention that these    language that the board of commissioners “may” fire a
rules and regulations, like employee handbooks, could modify     employee for any just cause. The term “may” is permissive
an employment relationship.          Tennessee courts have       and suggests that there are other permissible means for
“recognized that an employee handbook can become a part of       terminating a city employee. In cases where Tennessee courts
an employment contract.” Rose v. Tipton County Pub. Works        have found an employment contract to exist, the employee
Dep’t, 953 S.W.2d 690, 692 (Tenn. Ct. App. 1997). “In order      handbook contained the mandatory terms “shall” and “will.”
to constitute a contract, however, the handbook must contain     See, eg., Williams v. Maremont Corp., 776 S.W.2d 78, 80-81
specific language showing the employer’s intent to be bound      (Tenn. Ct. App. 1988) (finding the language “employees will
by the handbook’s provisions.” Id. We do not believe the         be recalled in the order of seniority” to be binding) (emphasis
language of these rules and regulations shows the specific       added); Hamby v. Gensco, Inc., 627 S.W.2d 373, 376 (Tenn.
intent of the city to be bound by their terms.                   Ct. App. 1981) (holding that the statement contained in the
                                                                 employee handbook that “these shall be The Guaranteed
   In Reed v. Alamo Rent-A-Car Inc., 4 S.W.3d 677, 688           Policies, Practices and Procedures” created a contractual
(Tenn. Ct. App. 1999), the Tennessee Court of Appeals held       relationship) (emphasis added). In addition, the rule identifies
that an employee handbook could modify an at-will                certain acts2 as grounds for discharge; however, these acts are
employment agreement to require the employer to dismiss the      characterized as examples of grounds for discharge leading to
employee only for just cause. Prior to this decision,            the inference that they are not the exclusive bases for
Tennessee courts had held that terms of employment, like         terminating city employees. In Ogburn v. Gas and Water
benefits, could become contractual through the operation of      Dep’t, No. 01A01-9702-CH-00056, 1997 WL 528812, at *4-5
the employee handbook, but they had never held that an           (Tenn. Ct. App. Aug. 27, 1997) (unpublished), the court held
employee handbook could convert an at-will employment            that the use of “may” in the city charter did not limit the city
agreement into a protectible property interest. See Gregory v.   from following other methods to terminate employees. We
Hunt, 24 F.3d 781, 785-87 (6th Cir. 1994) (discussing this       believe that Tennessee courts would hold that the language of
phenomenon). The Reed court, however, limited its holding        the board’s employee rules and regulations does not evidence
to those cases where the handbook contains “unequivocal          the clear intent to create a property interest in continued
language demonstrating [the employer’s] intent to be bound       employment with the city.
by the handbook’s provisions.” In particular, the court stated
“we can conceive of no clearer way for an employer to
express its intent to be bound by a handbook’s provisions than
the employer’s specific statement that the document                  2
                                                                       The policy statement provides:
represents the parties ‘entire agreement of employment’ and      A city employee may be terminated for any just cause at the discretion of
that the employer ‘promises and agrees to abide by all its       the board. Examples are:
terms and conditions.’” 4 S.W.3d at 688. We believe that the     A. Failure to perform duties according to job description.
                                                                 B. Failure to meet attendance requirements.
