                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                              JANUARY 21, 2010 Session

           JACQUELINE REDMON v. CITY OF MEMPHIS, ET AL.

              Direct Appeal from the Chancery Court for Shelby County
                   No. CH-08-2201-2    Arnold Goldin, Chancellor


              No. W2009-01520-COA-R3-CV - Filed February 19, 2010


A City of Memphis employee was terminated after accessing a city-owned database to obtain
the telephone number of a police officer who had arrested her husband and calling the officer
at his home to inquire about the arrest. Both the City of Memphis Civil Service Commission
and the trial court upheld her termination, and we affirm.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

Thomas E. Hansom, Leigh H. Thomas, Memphis, Tennessee, for the appellant, Jacqueline
Redmon

Bruce McMullen, Imad Abdullah, Tonya Johnson, Memphis, Tennessee, for the appellee,
City of Memphis
                                             OPINION

                             I.   F ACTS & P ROCEDURAL H ISTORY

        Jacqueline Redmon (“Appellant”) was hired as a benefits specialist for the City of
Memphis (the “City”) in December of 2005. In this capacity, she was responsible for
maintaining benefits information for City employees and had access to employees’ personal
information, including social security numbers, addresses, dependent and spouse information,
phone numbers, salaries, garnishments, and benefits information. After Appellant’s husband
was arrested in November of 2007, Appellant accessed the City’s Oracle database to obtain
the telephone number of the arresting officer, Officer Darnell Gooch, and she called Officer
Gooch at his home to inquire about the arrest.

       Officer Gooch was upset by Appellant’s telephone call as he had recently been the
victim of identity theft. Thus, he called the City’s benefits office to verify that Appellant
worked for the City, and he also met with Appellant’s supervisor, Pearl Gibson, regarding
the incident. Officer Gooch filed a formal complaint with his supervisors, which was
ultimately forwarded to the “security squad[.]”

       Following the police department’s internal affairs investigation which sustained the
allegations against Appellant, Ms. Gibson prepared a disciplinary statement.1 According to
Ms. Gibson, she then met with Appellant to review the police findings. Appellant
acknowledged the truth of the facts contained within the police internal affairs report, and
she was terminated via a March 12, 2008 letter.

       Recognizing that it had failed to conduct a fact-finding hearing, the City issued a letter
on March 18, 2008, rescinding Appellant’s termination, reinstating her employment, and
placing her on administrative leave pending a fact finding hearing. A second letter, also
dated March 18, 2008, was sent to Appellant scheduling a hearing for March 24, 2008, and
charging her with three violations: PM 38-02; PM 78-04; and PM 66-12.

       A fact finding hearing was conducted on March 24, 2008, at which Appellant was
afforded an opportunity to speak on her own behalf. According to the City, Appellant
admitted to accessing the database to retrieve Officer Gooch’s telephone number and to
calling him at home regarding her husband’s arrest, but she insisted that she had done
nothing wrong. In an April 14, 2008 letter, Appellant was terminated for violating the three


       1
          According to a March 12, 2008 letter, the Memphis Police Internal Affairs report sustained the
allegations that Appellant had violated PM 62-12, Employee Conduct, and PM 70-05, Confidentiality of
Medical records.

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above-mentioned policies.

        Appellant appealed her termination to the City’s Civil Service Commission (the
“Commission”), and a hearing was held on September 5, 2008. At the hearing, Appellant
testified that she had acquired Officer Gooch’s telephone number through the Oracle
database, that she knew she was only to access the database for “job function[s],” and that
her telephone call to Officer Gooch had not been work-related. However, she claimed that
she had no intention to harm Officer Gooch, and that she had only contacted him “for [her]
own safety.” She also pointed out that the telephone conversation was polite and that it had
lasted only approximately one minute.

      On October 2, 2008, the Commission upheld Appellant’s termination, unanimously
concluding:

       (a) that Ms. Redmon had accessed the Oracle data base to obtain contact
       information for Officer Gooch, who had recently arrested her husband; (b) that
       she had used that sensitive information to contact Officer Gooch at his home
       while he was off duty to discuss her husband’s arrest; (c) that her access to the
       Oracle data base for that purpose was unrelated to her employment duties and
       for her personal benefit; (d) that the information obtained by her was
       confidential; (e) that from her previous work experience, as well as from her
       City job training, she knew, or should have known, the information she was
       accessing was confidential and not for personal use; and (f) that her actions
       were unprofessional, in violation of City policy and were potentially harmful
       to both Officer Gooch and the City.

        Appellant filed a “Petition for Writ of Certiorari” in the Shelby County Chancery
Court, seeking a review of the Commission’s decision. Appellant’s petition was heard on
June 11, 2009. The chancery court denied Appellant’s petition, specifically finding that the
Commission had complied with the Uniform Administrative Procedures Act in conducting
its deliberations in private, and that the Commission’s decision to uphold Appellant’s
termination Appellant was supported by substantial and material evidence. Appellant timely
appealed to this Court.




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                                 II.    I SSUES P RESENTED

       Appellant asserts that the chancery court erred in upholding the Commission’s
decision to terminate Appellant, because the Commission’s decision was erroneous for the
following reasons:

1.     It was a violation of constitutional provisions which prejudiced Ms. Redmon’s rights;
2.     The decision to uphold the termination was made upon unlawful procedure;
3.     The decision rested upon no reasonable basis, was arbitrary and capricious, and
       indicated an abuse of discretion; and
4.     The trial court failed to indicate substantial and material evidence in support of its
       decision.


                               III.    S TANDARD OF R EVIEW

         In 1988, the General Assembly amended Tennessee Code Annotated section 27-9-
114(b)(1) to read, in part, “Judicial review of decisions by civil service boards of a county
or municipality which affects the employment status of a county or city civil service
employee shall be in conformity with the judicial review standards under the Uniform
Administrative Procedures Act, § 4-5-322.” See Davis v. Shelby County Sheriff’s Dep’t,
278 S.W.3d 256, 262 (Tenn. 2009). “In Davis, the Supreme Court clarified the application
of Tenn. Code Ann. § 4-5-322 to Civil Service Boards not governed by Tenn. Code Ann. §
27-9-114(a)(1).” Tennessee Code Annotated section 27-9-114(a)(1) provides that
“[c]ontested case hearings by civil service boards of a county or municipality which affect
the employment status of a civil service employee shall be conducted in conformity with the
contested case procedures under the Uniform Administrative Procedures Act, compiled in
title 4, chapter 5, part 3.” Morris v. City of Memphis Civil Serv. Comm’n, No. W2009-
00372-COA-R3-CV, 2009 WL 4547688, at *3 (Tenn. Ct. App. Dec. 7, 2009) (citing Davis,
278 S.W.3d at 263). Because the City of Memphis is a home rule jurisdiction, the City of
Memphis Civil Service Commission is exempted from subdivision (a)(1)’s requirement that
contested case hearings affecting a civil service employee’s employment status be conducted
in conformity with the UAPA’s contested case procedures. See id. (citing City of Memphis
Ordinance No. 1852); see also Davis, 278 S.W.3d at 263. “However, as noted by the
Supreme Court, when Tenn. Code Ann. § 27-9-114(a) and (b) are read in pari materia, Tenn.
Code Ann. § 27-9-114(a)(2) does not affect the applicability of the judicial review standard
to the Commission’s decisions under Tenn. Code Ann. § 27-9-114(b).” Morris, 2009 WL
4547688, at *3 (citing Davis, 278 S.W.3d at 263). Thus, our standard of review is that set
forth in Tennessee Code Annotated section 4-5-322:
       (h)The court may affirm the decision of the agency or remand the case for

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       further proceedings. The court may reverse or modify the decision if the rights
       of the petitioner have been prejudiced because the administrative findings,
       inferences, conclusions or decisions are:
       (1) In violation of constitutional or statutory provisions;
       (2) In excess of the statutory authority of the agency;
       (3) Made upon unlawful procedure;
       (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion; or
       (5)(A) Unsupported by evidence that is both substantial and material in the
       light of  the entire record.
           (B) In determining the substantiality of evidence, the court shall take into
       account     whatever in the record fairly detracts from its weight, but the court
       shall not       substitute its judgment for that of the agency as to the weight
       of the evidence on     questions of fact.


Our review of the Commission’s factual findings is limited by the provisions of Tennessee
Code Annotated section 4-5-322; however, our review of matters of law is de novo without
a presumption of correctness. Davis, 278 S.W.3d at 264 (citing Tenn. R. App. P. 13(d);
Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 373 (Tenn. 2007)).


                                       IV.   D ISCUSSION


                                  A.    Open Meetings Act


       On appeal, Appellant claims that the Commission “violated State law when it
deliberated over Petitioner’s appeal in private.” As support for this argument, Appellant cites
the Tennessee Open Meetings Act, Tennessee Code Annotated section 8-4-101, et seq.,
which requires that “[a]ll meetings of any governing body are declared to be public meetings
open to the public at all times, except as provided by the Constitution of Tennessee.” Tenn.
Code Ann. § 8-4-102(a). As relevant to this appeal, the Act defines a “governing body” as
“[t]he members of a public body . . . with the authority to make decisions for or
recommendations to a public body on policy or administration[.]” Tenn. Code Ann. § 8-44-
102(b)(1)(A).




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       At oral argument before this Court, Appellant contended that when the Commission
makes decisions regarding an employee’s termination, that it is making “decisions or
recommendations to a public body on . . . administration” as contemplated by the statute. We
disagree. This Court, in Hastings v. South Central Human Resource Agency, 829 S.W.2d
679, 686 (Tenn. Ct. App. 1991), held that the SCHRA’s grievance committee was not a
“governing body” within the Act’s purview because its function was merely to “hear and
dispose of personnel complaints in accordance with the policies and procedures formulated
by the governing board.” Appellant has failed to show, or even argue, that the City of
Memphis Civil Service Commission has authority beyond that of the SCHRA’s grievance
committee. Accordingly, it does not appear to this Court that the Commission should be
viewed as a governing body subject to the Act, and thus, we find that the Commission’s
decision was not made in violation thereof.


       Appellant seems to argue in the alternative that the Commission’s private
deliberations violated the Uniform Administrative Procedures Act (“UAPA”),2 specifically,
Tennessee Code Annotated section 4-5-312(d), which requires hearings before the Civil
Service Commission regarding contested cases “be open to public observation pursuant to
the provisions of [the Tennessee Open Meetings Act].” Tenn. Code Ann. § 4-5-312(d). As
we explained above, because the City of Memphis is a home rule jurisdiction, the
Commission is exempted from Tennessee Code Annotated section 27-9-114(a)(1)’s
requirement that “contested case hearings by civil service boards . . . be conducted in
conformity with contested case procedures under the [UAPA..]” See Tenn. Code Ann. § 27-
9-114; Davis, 278 S.W.3d at 263-64. Thus, we find Appellant’s argument without merit.


                                  B.    Sufficiency of the Evidence


        Next, we address Appellant’s arguments concerning the sufficiency of the evidence
presented. Specifically, Appellant contends that the Commission “rendered a decision with
no reasonable basis, that was arbitrary and capricious, and that indicated an abuse of
discretion[,]” and that “the trial court failed to indicate any substantial and material evidence
upon which the commission relied to reach its decision in light of the entire record.”
Appellant suggests that her termination was “completely unreasonable” because she was
“very nice and polite” when she called Officer Gooch, and because his “discomfort stemmed
not from specifically receiving a call from [Appellant] but that it happened at a time that he
was experiencing identity theft.” She further points to her “clean work history” with the City
and she suggests that utilizing Officer Gooch’s telephone number was not a “very serious

       2
           Tennessee Code Annotated section 4-5-101, et seq.

                                                   -6-
breach of confidentiality.” Appellant alleges that the Commission erroneously assumed that
Officer Gooch’s telephone number was confidential. She also claims that she was never
provided an employee handbook, that she never divulged Officer Gooch’s information to
anyone, and that Officer Gooch’s telephone number “was on the very screen she would see
after logging into her Oracle database[.]” She points out that no criminal charges were filed
against her, and she further contends that Officer Gooch had received other calls from City
employees and that his concern regarding her telephone call stemmed only from his recent
identity theft. Based on these allegations, Appellant maintains that her termination was
“excessive and unreasonable.”


        “In reviewing the [Commission’s] findings, we take into account whatever in the
record fairly detracts from the weight of the evidence, but we may not substitute our own
judgment on questions of fact by re-weighing the evidence.” Davis, 278 S.W.3d at 265
(citing Tenn. Code Ann. § 4-5-322(h)(5)(B). “We may reject the [Commission’s] decision
only if a reasonable person would necessarily reach a different conclusion based on the
evidence.” Id. (citing Martin v. Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001)). We
will not reject the Commission’s decision merely because the facts could support a different
conclusion. Id. (citing Martin, 78 S.W.3d at 276).


       Appellant’s termination was based on violations of the following provisions:


       PM 38-02(4) - “The employee’s conduct and/or behavior toward citizens,
       public charges, vendors, contractors, management personnel, fellow
       employees, etc., has been offensive, inappropriate, and fails to maintain
       satisfactory and harmonious working relationships.”


       PM 38-02(11) - “The employee has misappropriated City funds, appropriated
       City property for personal use, illegally disposed of City property, removed or
       destroyed City records, or has taken, borrowed, or removed City property,
       regardless of size and/or cost from City premises without proper
       authorization.”


       PM 38-02(17) - “The employee has either on or off the employee’s regular
       duty hours engaged in employment, activities, or enterprises that are
       inconsistent, incompatible, or in legal, technical, or moral conflict with the
       employee’s assigned duties, functions, and responsibilities.”


                                             -7-
       PM 62-12 - “City employees . . . shall adhere to acceptable business principles
       in matters of personal conduct and behavior and exhibit a high degree of
       personal integrity. This not only involves respect for the rights and feelings
       of other City employees, but demands that City employees refrain from any
       conduct or behavior that is criminal or illegal, or that might be personally
       harmful to co-workers and City of Memphis Government, or that could be
       viewed unfavorably by the public at large. Therefore, City employees are
       expected to behave in a professional manner by conducting themselves in a
       way that best represents City Government and to exercise appropriate conduct
       and judgment at all times. . . . Willful, deliberate, or careless misuse of City
       equipment and/or City property shall not be tolerated. Such abuse will lead to
       disciplinary action up to and including termination and/or assignment of
       financial responsibility for loss or damage caused. . . .”


       PM 78-04 - “All access to and use of personal computer hardware or software
       owned by the City, including internet, internal e-mail, and external e-mail, by
       any City employee . . . will be conducted in an ethical, professional, and lawful
       manner, exclusively for business purposes in support of City operations, and
       not for personal use. . . . Users will not access or use these tools in any manner
       that breaches confidentiality of City business, legal, or other proprietary
       information[.]”


       We reject Appellant’s claim that the trial court “failed to indicate any substantial and
material evidence upon which the commission relied to reach its decision[.]” The trial court,
in finding that the Commission’s decision was supported by substantial and material
evidence, specifically found that PM78-04 required that access to City-owned computer
equipment be used exclusively for business purposes, that Appellant had no legitimate
business reason for accessing Officer Gooch’s confidential information to inquire about her
husband’s arrest, and that in doing so Appellant violated City policy. We agree with the trial
court’s statement that “[w]hether [Appellant’s] access and subsequent use of the confidential
information was innocent or whether Officer Gooch was concerned as a result of being
contacted by [Appellant] is irrelevant to whether [Appellant] violated the City’s policy[.]”
We further find irrelevant whether or not Appellant revealed Officer Gooch’s telephone
number to a third party, whether criminal charges were brought against Appellant, or whether
she had to access multiple screens within the Oracle database in order to locate his telephone
number.




                                              -8-
         We also reject Appellant’s contention that “the record from the Commission hearing
is rife with facts in evidence supporting the reinstatement of [Appellant].” Appellant’s claim
that she never received a handbook containing the above-mentioned policies is directly at
odds with the evidence presented to the Commission. The record before us contains a “City
of Memphis New Employee Orientation Checklist,” which Appellant conceded she signed
on January 10, 2006, acknowledging receipt of numerous policies and procedures, including
PM 62-12 and PM 78-04. Additionally, Appellant failed to substantiate her claim that
“Officer Gooch had received other calls from City employees . . . though not specifically
about arrests he had made.”


        As we stated above, at the Commission hearing Appellant testified that she accessed
the City-owned Oracle database to obtain Officer Gooch’s telephone number for personal,
rather than work-related, reasons. The Commission unanimously concluded, and we agree,
that City employees have an expectation that their confidential information will be used only
for business purposes, and “that the City must demand security and confidentiality of
sensitive personnel information and must not permit that information to be used for any
personal use, however harmless it may appear, without express permission or authorization.”
Accordingly, we find that Appellant’s termination was supported by substantial and material
evidence and that the Commission’s decision was not “arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of discretion.” Tenn.
Code Ann. § 4-5-322(h)(4).


                                     C.    Due Process
                          1.   Hearings and Violations Charged


        Appellant argues that she was denied due process prior to her termination in that she
was initially terminated without a “requisite fact-finding hearing.” She also claims that the
fact-finding hearing following her reinstatement failed to comply with constitutional
requirements because it was merely an attempt to “formalize” her termination, and because
she was denied the “right” to “bring a witness” to the hearing. Finally, she contends that her
due process rights were somehow violated because the City “continued to vacillate on which
policies should be used in supporting [her] termination.”


       The Fourteenth Amendment to the United States Constitution prohibits states from
depriving “any person of life, liberty, or property, without due process of law.” The hallmark
of property is an individual entitlement grounded in state law, which cannot be removed
except “for cause.” Armstrong v. Tenn. Dep't of Veterans Affairs, 959 S.W.2d 595, 598

                                             -9-
(Tenn. Ct. App. 1997) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S. Ct.
1148, 71 L. Ed. 2d 265 (1982)). A state civil servant has a property interest in his or her
continued employment. Tenn. Code Ann. § 8-3-331(a). Therefore, minimum due process
must be afforded to such employees before actions affecting their property interest become
effective.


        Prior to the termination of a public employee who may be discharged only for cause,
the employee must be given notice and an opportunity to respond to the charges against him.
Case v. Shelby County Civil Serv. Merit Bd., 98 S.W.2d 167, 170 n.1 (Tenn. Ct. App. 2002)
(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494
(1985)); see also Tenn. Code Ann. § 8-30-331. “[D]ue process is flexible and calls for such
procedural protections as the particular situation demands.” Id. (quoting Mathews v.
Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893 (1976)). Tennessee Code Annotated section 8-30-
331(b)(5) specifically states that the “predecision discussion . . . shall be informal” and that
the employee has the “right to present written statements of witnesses[;]” however,
“[a]ttendance and participation by persons other than the manager and the employee shall be
at the discretion of the manager[.]” Because the opportunity to call witnesses was
discretionary rather than mandatory, Appellant’s due process rights were not violated by her
supervisor’s decision to disallow witnesses at the April 14, 2008 fact-finding hearing.


       Furthermore, Appellant’s due process arguments overlook the post-termination
process afforded to her. When less than a full evidentiary hearing is held prior to
termination, a formal post-termination hearing is required. Case, 98 S.W.2d at 173 (citing
Loudermill, 470 U.S. at 547). This Court has stated that “[t]he pretermination and
posttermination procedures are intertwined and must be reviewed together to determine
whether due process has been satisfied.” Id. (citing Carter v. Western Reserve Psychiatric
Habilitation Ctr., 767 F.2d 270, 273 (6 th Cir. 1985)). Appellant’s termination was reviewed
by the Commission in a full evidentiary hearing on September 5, 2008. At this hearing,
Appellant was represented by counsel, she testified on her behalf, she was allowed to cross-
examine Officer Gooch and her supervisor, Ms. Gibson, and she had the opportunity to call
witnesses on her behalf although she apparently chose not to subpoena any witnesses.
Examining the pre-and post-termination procedures together, we have determined that
Appellant was afforded the required procedural safeguards.


      We also reject Appellant’s claim that the City’s vacillation regarding the policies
under which she was charged somehow violated her due process rights. In the initial
termination notice of March 12, 2008, Appellant was charged with violating PM 62-12,
Employee Conduct, and PM 70-05, Confidentiality of Medical Records. However, on

                                             -10-
March 18, 2008, Appellant was reinstated, and she was charged with violating three
provisions: PM 38-02, PM 78-04, and PM 66-12. Appellant had six days’ notice of the
violations charged prior to her fact-finding hearing of March 24, 2008, and it is for these
three violations that Appellant was ultimately terminated. Appellant has failed to
demonstrate any prejudice she suffered as a result of the City’s actions. Accordingly, we find
that the City’s substitution of charges did not violate Appellant’s constitutional rights.

                                  2.    Void for Vagueness

       Finally, on appeal Appellant claims that the three policies upon which her termination
was based are unconstitutionally vague. The City contends that Appellant failed to raise the
“vagueness” argument in the trial court. However, our review of the trial court transcript
reveals that Appellant briefly raised the issue regarding PM 38-02. Nonetheless, we find it
unnecessary to address Appellant’s argument regarding PM 38-02’s alleged “vagueness” as
Appellant failed to challenge the two other provisions under which Appellant was
terminated, and a violation of either, alone, constituted sufficient grounds for termination.

                                       V.   C ONCLUSION


       For the aforementioned reasons, the judgment of the trial court upholding the
termination is affirmed. Costs of this appeal are taxed to Appellant, Jacqueline Redmon, and
her surety, for which execution may issue if necessary.


                                                    _________________________________
                                                    ALAN E. HIGHERS, P.J., W.S.




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