                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 May 13, 2014 Session

                  BRYANT JENNINGS v. CITY OF MEMPHIS

             Direct Appeal from the Chancery Court for Shelby County
                  No. CH-12-1494-2    Arnold Goldin, Chancellor


                 No. W2013-02570-COA-R3-CV - Filed July 24, 2014


This case involves the eligibility of a Memphis police officer for automatic promotion to
thirty-year Captain. The trial court granted summary judgment in favor of the officer.
However, because the officer was a temporary employee prior to the cut-off date set forth in
the automatic promotion provision, we find that he is not entitled to automatic promotion.
We reverse the grant of summary judgment in favor of the officer and we grant summary
judgment in favor of the City of Memphis. The case is remanded for further proceedings,
as may be necessary, consistent with this opinion.


Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed
                                  and Remanded

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which J. S TEVEN
S TAFFORD, J., and P AUL G. S UMMERS, S ENIOR J UDGE, joined.

Prince C. Chambliss, Jr., Assistant City Attorney, Memphis, Tennessee, for the appellant,
City of Memphis

Clyde W. Keenan, Memphis, Tennessee, for the appellee, Bryant Jennings
                                               OPINION

                             I.   F ACTS & P ROCEDURAL H ISTORY

       The following facts are undisputed for purposes of summary judgment. Bryant
Jennings began working as a temporary, full-time research associate with the Memphis
Police Department on August 28, 1978. He worked in that position until June 11, 1979 when
he was transferred to police recruit training from which he graduated and became a full-time
commissioned police officer–apparently, a permanent position. Mr. Jennings has been
continuously employed by the City since August 28, 1978.

        On September 21, 2012, Mr. Jennings filed a Complaint for Declaratory Judgment in
the Shelby County Chancery Court seeking a declaration that he “be promoted to the rank of
Captain with full back pay and benefits to the date of his eligibility for same.” Mr. Jennings
relied upon the Memphis City Charter, Article 10, Section 67, which provides:

                Any fireman or policeman, who shall have served the City of Memphis
        for a period of thirty (30) years, either continuously or intermittently, shall, at
        the expiration of said thirty years, automatically be promoted to the rank of
        captain of the fire division or captain of the police division, with all the salary,
        emoluments and other privileges of said rank; and, upon the retirement of such
        fireman or policeman, he shall receive a pension as captain.

               Automatic promotion to the rank of captain in either the fire service
        division or the police division as set out in the above paragraph shall not apply
        to any person employed by the City after the date of January 31, 1979.

He claimed that although the City had previously determined that he was eligible for
promotion to thirty-year captain, it had later refused such promotion.1

      After filing its Answer, the City filed a Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment and an accompanying memorandum of law. The City


        1
        Mr. Jennings attached as an exhibit to his Complaint, a letter dated May 24, 2000, from the City of
Memphis Administrative Services Manager stating that he would be eligible for thirty-year Captain on
August 28, 2008–thirty years after he began working as a temporary research associate. On appeal, Mr.
Jennings does not argue that he is entitled to promotion under promissory estoppel and, in any event, this
Court has previously determined that mistakes of city employees regarding eligibility for automatic
promotion to thirty-year Captain do not give rise to a right to declaratory judgment. See Dunlap v. City of
Memphis, No. W2003-02649-COA-R3-CV, 2004 WL 2599752, at *4 (Tenn. Ct. App. Nov. 12, 2004).

                                                   -2-
asserted two theories as to why Mr. Jennings was not entitled to automatic promotion: (1)
Mr. Jennings, as a temporary employee was not an “employee” entitled to retirement
benefits, and therefore, was not “employed” by the City as of January 31, 1979; and (2) Mr.
Jennings, as a research associate as of January 31, 1979, was not entitled to benefits reserved
for policemen and firemen. In sum, the City contended that to be entitled to automatic
promotion pursuant to Section 67, Mr. Jennings must have been a permanent police officer 2
prior to February 1, 1979. The City attached the Affidavit of the City of Memphis Human
Resources Division Director, which provided in part:

               Without regard to whether Bryant Jennings, Petitioner herein, was
        employed continuous and full-time, his capacity as a temporary employee prior
        to June 11, 1979 disqualifies that employment from credit towards pension
        benefits. Therefore, his official employment commencement date for pension
        benefits is June 11, 1979, the day that he enrolled at the academy to begin his
        employment as a City of Memphis police officer. That date, June 11, 1979, is
        the continuous, regular full-time employment date listed in Petitioner’s
        personnel file. His position as a Research Associate in the Police Services
        Division, which he began on August 28, 1978, is described as full-time
        temporary employment.

Additionally, the City attached an excerpt from the Memphis City Ordinance, Article I,
Section 25-1, Pensions and Retirement, which defined “Employee” in relevant part as
follows:3

        Employee: Any person in the regular, full-time employ of the city to the extent
        that the city contributes to the salary of such employee in a job classification


        2
          Here, there is apparently no dispute that Mr. Jennings has been employed as a police officer for at
least thirty years–from 1979 to the present. It appears that the City has abandoned its argument that Mr.
Jennings is not entitled to retire as a thirty-year captain because his service prior to February 1, 1979 was as
a research associate rather than as a policeman, irrespective of the temporary v. permanent classification.
In any event, based upon our resolution of the temporary v. permanent issue, we find it unnecessary to
address whether Mr. Jennings was also required to be in a police officer position prior to February 1, 1979.
        3
           The provisions of Section 25-1 are currently found in the Code of Ordinances, Title 4 Pensions and
Retirement, Section 4-4-1. In the trial court, an issue was raised regarding the applicability of Section 25-1
to Mr. Jennings because Section 25-1 was not adopted until 1985. However, the definition of “employee”
at issue in this case was also set forth in Ordinance 2696, which created requirements for membership in the
City of Memphis pension and retirement system for persons employed by the City after July 1, 1978.
Because Ordinance 2696 was enacted prior to Mr. Jennings’ employment–of any type–with the City, we will
refer to the “employee” definition set forth therein; to be clear, the definition remained unchanged in Section
25-1 and in Section 4-4-1.

                                                      -3-
      or title that the city administration shall designate as eligible for participation
      in the plan . . . but not including . . . temporary employees as classified by the
      city[.]

       Mr. Jennings then filed a competing Motion for Summary Judgment arguing that
Section 67 unambiguously provides for promotion without exclusions based upon
administrative designations.

      Following a hearing, the chancery court entered an Order on July 25, 2013, granting
Mr. Jennings’ Motion for Summary Judgment. The Order recited in pertinent part:

             The issue before it is one of statutory interpretation. The Court has to
      interpret [Section 67] just as if the Court would be interpreting a statute from
      the Tennessee legislature.

             The Court has to assume in reading this statute that the City legislative
      body intended what it stated when it wrote the statute. This statute says any
      police or firemen who shall have served the City of Memphis for a period of
      30 years.

               It doesn’t say, and it could have said, who shall have served the City of
      Memphis as a fireman or patrolman for a period of 30 years. It didn’t say that.
      It just says who shall have served the City of Memphis for a period of 30 years
      either continuously or intermittent[ly]. And [Section 67] goes on to say in the
      second paragraph, automatic promotion to the rank of captain in either the fire
      service division or the police division as set out in the above paragraph shall
      not apply to any person employed by the City after the date of January 31,
      1979. Again it didn’t specify police or fireman.

             So it seems to this Court when this statu[t]e was drafted, it took into
      consideration the fact that someone could have served the city in another
      capacity other than a policeman or fireman, and that that would also be
      considered as part of the time necessary to complete the requirements.

             In this case there is no question, no dispute about the fact that Mr.
      Jennings was a policeman or a fireman at the time that he retired or at the time
      that he made the 30 years, and that the question is whether or not the time of
      service prior to the time that he became a policeman should be considered.

             It is the Court’s interpretation reading the statute that the statute did not

                                              -4-
       restrict it to the period of time that he became a policeman and that the period
       of time that he served the city prior to the time that he became a police officer
       should count towards his retirement.

       Ostensibly, because the chancery court failed to mention the effect, if any, of Mr.
Jennings’ “temporary employee” status prior to at least June 1979, the City filed a Motion
to Alter or Amend Judgment arguing that the court had erred in refusing to consider matters
outside of Section 67. Specifically, the City cited the City of Memphis Charter, Article 7,
Section 53 which authorizes the Board of Commissioners to establish a retirement or pension
system and to determine who may be included as members of said system as well as
Memphis City Ordinance, Article I, Section 25-1, Pensions and Retirement, which defines
“Employee” to exclude temporary employees.

        The chancery court denied the City’s Motion to Alter or Amend. First, it stated that
the Ordinance defining “Employee” was not passed until 1985 and, therefore, it concluded
that the Ordinance “obviously cannot be applicable to Jennings.” Assuming arguendo that
the Ordinance’s narrow definition of “employee” would render Section 67's benefits
unavailable to Mr. Jennings, the court found “no legal grounds for permitting its retroactive
application.” Moreover, the court stated that it had considered the portions of the Charter
and the Ordinance cited by the City, and it had, nonetheless, determined that summary
judgment should be granted in favor of Mr. Jennings.

       A final judgment was entered on October 11, 2013, and the City timely appealed to
this Court.


                                   II.   I SSUES P RESENTED

       The City presents the following issues for our review:

1.     Whether this Court should reverse the trial court’s finding that Mr. Jennings is entitled
       to retire as a Thirty Year Captain because it erred in disregarding the definition of
       “employee” as is set forth in the applicable ordinance and instead refused to read the
       Charter and Ordinance provisions in pari materia; and

2.     Whether this Court should reverse the trial court’s finding that Mr. Jennings has the
       required number of years of service because the applicable ordinance excludes Mr.
       Jennings as an “employee” so as to prohibit compliance with the number of years of
       service required by the Charter provision to entitle a police officer to retire as a Thirty
       Year Captain.

                                               -5-
For the following reasons, we reverse the grant of summary judgment in favor of Mr.
Jennings and we grant summary judgment in favor of the City of Memphis. The case is
remanded for further proceedings, as may be necessary, consistent with this opinion.


                                III.   S TANDARD OF R EVIEW

       Competing motions for summary judgment were filed in this case. The party moving
for summary judgment has the burden of showing that “there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.” Tenn. R. P.
56.04. A party moving for summary judgment who does not bear the burden of proof at trial
shall prevail on its motion if it:

       (1) Submits affirmative evidence that negates an essential element of the
       nonmoving party’s claim; or

       (2) Demonstrates to the court that the nonmoving party’s evidence is
       insufficient to establish an essential element of the nonmoving party’s claim.

Tenn. Code Ann. § 20-16-101. We review a grant of summary judgment de novo with no
presumption of correctness. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).


                                       IV.   D ISCUSSION

       This appeal involves an often-litigated City of Memphis Charter provision. As stated
above, Article 10, Section 67 of the City of Memphis Charter provides:

              Any fireman or policeman, who shall have served the City of Memphis
       for a period of thirty (30) years, either continuously or intermittently, shall, at
       the expiration of said thirty years, automatically be promoted to the rank of
       captain of the fire division or captain of the police division, with all the salary,
       emoluments and other privileges of said rank; and, upon the retirement of such
       fireman or policeman, he shall receive a pension as captain.

              Automatic promotion to the rank of captain in either the fire service
       division or the police division as set out in the above paragraph shall not apply
       to any person employed by the City after the date of January 31, 1979.




                                               -6-
On appeal, the City contends that Mr. Jennings is not entitled to retire as a thirty-year
Captain. The City argues that as a temporary employee, Mr. Jennings was not an “employee”
as defined by Ordinance 2696, and therefore, he was not “employed by the City” by the
January 31, 1979 cut-off date set out in Section 67.

      In response, Mr. Jennings contends that the City’s reliance upon the definition of
“employee” set forth in Ordinance 2696 for pension and retirement purposes, is misplaced
because he is seeking only promotion to the rank of Captain and not pension credit.

       We begin our analysis by considering previous cases which have interpreted Section
67 of the Memphis City Charter.

       In Burrell v. City of Memphis, 1989 WL 92164 (Tenn. Ct. App. Aug. 16, 1989) perm.
app. denied (Tenn. Nov. 6, 1989), eleven firefighters were promoted to the rank of Captain
in the Fire Department, pursuant to Section 67, after completing thirty years of service.
Thereafter, as a result of reorganization, the number of Captain positions was reduced; some
captains were renamed “battalion commanders” and others were terminated. Id. at *2.

        The former Captains brought suit arguing that Section 67 permitted them to work as
Captain until they chose to retire. Id. Both the chancery court and this Court rejected the
Captains’ argument. Id. We found that Section 67 was “clear and unambiguous” and that
it “did not create a guarantee of employment; that it did provide for automatic promotion to
captain at the completion of thirty years of service and provided for a captain’s pension upon
retirement.” Id. (emphasis in original). “In so ruling, this Court implicitly affirmed the
City’s decision to abolish the rank of Captain from the Fire Department’s operational
structure.” Edwards v. City of Memphis, 342 S.W.3d 12, 16 (Tenn. Ct. App. 2010) (citing
Burrell, 1989 WL 9164, at *2).

        In Posey v. City of Memphis, 23 S.W.3d 332, 333 (Tenn. Ct. App. 2000), firefighters
sought declaratory and injunctive relief concerning the City’s method of calculating the
pensions of firefighters with thirty or more years of service who were eligible for automatic
promotion pursuant to Section 67. After elimination of the Captain rank, the firefighters
sought to have their pension calculated based upon the current rank of battalion commander
whereas the City sought to keep the Captain rank for retirement purposes, only. Id. In
deciding Posey, we noted that Burrell had “effectively relegate[d] the automatic provision
of Section 67 to purely a retirement tool” and that “[s]uch promotion to captain rewards the
employee for faithful service but provides no automatic benefit if employment is continued
after thirty years.” Id. at 335. “Recognizing that the Burrell court determined that the
automatic promotion provision, Section 67 of the Charter, is a device for enhancing the
pension of those eligible firemen” and that “the provision of Section 67 is for the purposes

                                             -7-
of retirement pension only,” we found the “City’s decision to retain the rank of captain for
pension determination is proper, even though it is no longer in the command structure.” Id.
at 336.

      Section 67 was again at issue in Dunlap v. City of Memphis, No. W2003-02649-COA-
R3-CV, 2004 WL 2599752 (Tenn. Ct. App. Nov. 12, 2004), but, this time, in a suit brought
by Memphis police officers. The officers argued that their time spent as reserve officers
should be credited toward the thirty years of service required for automatic promotion to
Captain. Id. at *1. The trial court disagreed, and we affirmed. Id.

        In determining that the officers’ service as reserve officers did not count toward the
thirty years necessary for promotion pursuant to Section 67, we looked to Article III, Section
28-56 of the Memphis Code, enacted in 1967, which provided:

               The auxiliary police force shall be designated as the “Memphis Police
       Reserve” and shall be composed of voluntary membership not to exceed three
       hundred (300) members; such members shall be headed by the director of
       police of the city, hereinafter designated as the “director.” They shall be part-
       time employees of the city police services division and shall be included in any
       life or health insurance or other such fringe benefits provided for employees
       of the city, if they do desire, but shall not be included under the civil service
       or retirement system of the city.

Id. at *3.

        Given the “express exclu[sion]” of reserve officers from the City’s retirement system,
we found “no basis for crediting time spent in the Memphis Police Reserve toward the thirty
years of service necessary for automatic promotion to Captain.” We noted the holdings in
Burrell and Posey, “that the automatic retirement provision ‘is purely a retirement tool’ and
‘a device for enhancing the pension of those eligible [officers],’” and we found “it would be
quite illogical to permit volunteer officers to enjoy the benefits of a retirement tool such as
Section 67 when they are explicitly excluded from city retirement benefits under Section 28-
56 of the Memphis City Code.” Id. at *5.

        In Edwards v. City of Memphis, 342 S.W.3d 12 (Tenn. Ct. App. 2010), seven police
officers filed suit claiming that the City had violated Section 67 by failing to promote them
to the rank of Captain after thirty years of service. As explained in Edwards, for budgetary
reasons, the position of Captain was eliminated in the Memphis Police Department’s
operational structure on February 18, 2005. Id. at 14. The ninety-four thirty-year Captains
in the department were given the choice of either retiring at the rank of Captain or returning

                                              -8-
to the rank held prior to Captain with a Captain’s pension upon retirement; no one was
terminated and pensions were not affected. Id; see also Edwards v. City of Memphis, No.
W2007-02449-COA-R3-CV, 2009 WL 2226222, at *1 n.2 (Tenn. Ct. App. July 27, 2009)
(reversing the trial court’s finding that suit was barred under res judicata).

        The police officers and the City filed competing motions for summary judgment.4 Id.
The trial court granted summary judgment in favor of the City and this Court affirmed. Id.
at 12, 15. We rejected the appellant police officers’ argument that they were entitled to the
promotion to the rank of Captain without the requirement of retirement. Id. at 16-19. We
stressed that “Section 67 is merely a retirement tool” and that “Tennessee courts have
consistently held that Section 67 of the City Charter provides no [right to work at the rank
of Captain], but instead provides only for enhanced pension benefits upon retirement of an
eligible employee.” Id. (citing Burrell, 1989 WL 92164; Posey, 23 S.W.3d 332; Dunlap,
2004 WL 2599752).

        The arguments espoused by the parties on appeal are somewhat difficult to discern.
However, as stated above, the City seems to argue only that Mr. Jennings is not entitled to
promotion pursuant to Section 67 because he was a temporary employee as of January 31,
1978, and, as a temporary employee, he is not an “employee” as defined by Ordinance 2696
for retirement purposes. In response, Mr. Jennings argues that we should look only to the
language of Section 67, which contains no requirement that permanent employment
commence prior to February 1, 1979.

       First, we reject Mr. Jennings’ apparent assertion that charter sections should be read
in a vacuum. We must construe together the portions of both the Charter and the Code of
Ordinances dealing with the same subject matter. See 421 Corp. v. Metro. Gov’t of
Nashville and Davidson County, 36 S.W.3d 469 (Tenn. Ct. App. 2000); see also Barnes v.
Ingram, 397 S.W.2d 821, 823 (Tenn. 1966) (construing the Charter and Ordinances
together); Posey, 164 S.W.3d at 576-77 (same).

       Article 7, Section 535 of the City Charter vests the Board of Commissioners with
authority to establish a retirement or pension system for the officers and employees of the
Fire Department and the Police Department and to determine who may be included as



        4
         Prior to filing motions for summary judgment, Appellants filed petitions for writ of mandamus and
the City filed motions to dismiss. Edwards, 342 S.W.3d at 14. The trial court dismissed the case based upon
res judicata, but this Court reversed and remanded. Id. at 14-15.
        5
            Section 53 lists as its “Code reference,” “Pensions and retirement, title 4[.]”

                                                        -9-
members of such system. Ordinance 26966 outlines the pension and retirement system plans
for general employees, including police officers and firefighters, and it defines “employee,”
for retirement and pension purposes, to include persons “in the regular, full-time employ of
the city . . . but not including . . . temporary employees as classified by the city[.]”

       Mr. Jennings attempts to separate Section 67 and Ordinance 2696 by arguing that the
former deals with promotions while the latter deals with retirement and pensions. Because
Section 67 has overwhelmingly been limited to the retirement arena, we find this argument
unavailing. Clearly, Section 67 and Ordinance 2696 relate to the same subject matter and
must be considered together.

        Here, there is no dispute that Mr. Jennings was a temporary employee prior to at least
February 1, 1979. As such, he was not an “employee” under Ordinance 2696 and was not
entitled to membership in the City’s pension and retirement system. In line with the
reasoning of Dunlap, because there is an express exclusion of temporary employees from the
retirement system, we find it would be illogical to allow Mr. Jennings to utilize temporary
service to meet the January 31, 1979 cut-off date set out in Section 67–a retirement
tool–when such service is explicitly excluded for retirement purposes under Ordinance 2696.

       In conclusion, we find that Mr. Jennings, as a temporary employee, prior to at least
February 1, 1979, is not entitled to automatic promotion pursuant to Section 67.
Accordingly, we reverse the trial court’s grant of summary judgment in favor of Mr. Jennings
and we grant summary judgment in favor of the City of Memphis. The case is remanded for
further proceedings, as may be necessary, consistent with this opinion.

                                          V.    C ONCLUSION

       For the aforementioned reasons, we reverse the grant of summary judgment in favor
of Mr. Jennings and we grant summary judgment in favor of the City of Memphis. The case
is remanded for further proceedings, as may be necessary, consistent with this opinion. Costs
of this appeal are taxed to Appellee, Bryant Jennings, for which execution may issue if
necessary.

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



        6
          Title 4 was adopted in 1985; however, as previously explained, a prior ordinance enacted in 1978,
Ordinance 2696, established a retirement system for City employees, including firemen and policemen, and
it defined “employee” to exclude “temporary employees[.]”

                                                   -10-
