                 IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                 ________________________________________

SAM POSEY, DANNY TODD, BILLY
CHITWOOD and JIMMY PORTER,

      Plaintiffs-Appellees,

                                                Shelby Chancery No. 102072-1
Vs.                                             C.A. No. W1999-02225-COA-R3-CV

CITY OF MEMPHIS, TENNESSEE,
DIVISION OF FIRE SERVICES OF
MEMPHIS, TENNESSEE, DR. W. W.
                                                     FILED
HERENTON, Mayor, WESTELLE
                                                 January 11, 2000
FLOREZ, Director of the Division
of Personnel, and CHARLES SMITH,
                                               Cecil Crowson, Jr.
Director of the Division of Fire
                                              Appellate Court Clerk
Services,

      Defendants-Appellants.
_____________________________________________________________________

              FROM THE SHELBY COUNTY CHANCERY COURT
             THE HONORABLE WALTER L. EVANS, CHANCELLOR




             Mark Allen; Barclay M. Roberts; Allen Godwin; of Morris,
                    Laurenzi & Bloomfield, P.C., of Memphis
                                  For Appellees

                       Charles V. Holmes; Louis P. Britt, III of
                         Ford & Harrison LLP of Memphis
                                  For Appellants




                          REVERSED AND REMANDED

                                    Opinion filed:




                                                W. FRANK CRAWFORD, P.J., W.S.


CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY KIRBY LILLARD, JUDGE
       This is a class action declaratory judgment suit filed by plaintiffs against the City

of Memphis and the various-named individual defendants in their official capacities

only. 1 The complaint seeks declaratory and injunctive relief concerning the City’s

method of calculating pensions of city firefighters with thirty or more years of service

who are eligible for automatic promotion to the rank of captain pursuant to Memphis

City Charter Sec. 67. The complaint alleges, inter alia, that the City violated Sec. 25.1

(4)(a) 3 of the Code of Ordinances of the City of Memphis by calculating the pensions

of the firefighters upon the salary of the former rank of captain as opposed to the

current rank of battalion commander.         Plaintiffs aver that the rank of battalion

commander became a comparable rank to captain within the meaning of Sec. 25-1

(4)(a) 3 after the rank of captain was eliminated from the command structure by

reorganization of the department.2

       Basically, there is no dispute of material facts. The pension controversy results

from the 1988 reorganization of the command structure of the Fire Suppression Bureau

(Bureau) of the City’s Fire Service Division. After the reorganization, there was a

reduction in the number of managerial employees, there was a modification and

expansion of certain other job duties and responsibilities, and there were a few new

positions created.3

       The reorganization resulted in the number of command positions being reduced

from 123 to 76 and specifically, the number of captains being reduced from 84 to 48.

The captains that were forced to retire were pensioned off at rate 4 of captains’ pay.



       1
          The certification of the class designates the class as: “All past and present
employees of the City of Memphis Fire Services Division who were hired prior to
January 31, 1979, and who have or will become eligible for automatic promotion to
Captain pursuant to Charter Section 67, and who retired on or after May 1, 1988 or
will be eligible in the future to retire pursuant to the Memphis City Ordinance, and
who have not achieved the rank of Battalion Commander.”
       2
         The trial court entered judgment for the City in April 1995, but on appeal
this Court vacated the judgment and remanded the case for further proceedings.

       3
         Prior to April 1988, the command structure of the Bureau consisted of two
divisions headed by six deputy chiefs. The divisions consisted of eleven battalions
headed by thirty-three district chiefs, and the battalions consisted of firefighting
companies headed by 84 captains. Prior to the reorganization, personnel was
divided into the following ranks listed in ascending order: privates, drivers,
lieutenants, captains, and chiefs.

                                             2
The remaining 48 captains were all moved to rate 4 of the pay scales, their duties were

changed, and they were renamed “battalion captains.”4          Whereas a captain was

previously responsible for one engine company during all three shifts, the battalion

captains were responsible for six engine houses during one shift and were provided

with a car. No additional training or education was required of the 48 newly designated

battalion captains.

       In January, 1989, the 48 battalion captains were renamed “battalion

commanders.” There were no changes in the newly designated battalion commanders’

job duties, responsibilities, or pay scale. A new pay scale was implemented on July 1,

1989, whereby the ranks held by the firefighting personnel for the Fire Services

Divisions were listed in ascending order as follows: privates, drivers, lieutenants,

battalion commanders, and chiefs.

       With the elimination of the captain’s position from the Bureau’s command

structure, the Fire Division determined that there was no comparable rank to the rank

of captain and that it was necessary to maintain a captain’s salary on its payroll for the

purposes of calculating the pension of a 30 year firefighter pursuant to § 25-1(4)(A)3

of the Code of Ordinances of the City of Memphis. As a result, the Fire Division kept

on its payroll the captain designation in existence at the time of reorganization.

       Upon remand, after a non-jury trial, the trial court held that the position of

battalion commander is a comparable rank to the former rank of captain within the

meaning of Section 25-1(4)(A)3 and that all thirty-year firefighters who come within the

group that are covered by that provision are entitled to have their pensions based upon

the salary of a battalion commander.

       The City filed a Notice of Appeal, and the issues for review, as stated in

appellants’ brief, are:

              1. Whether the trial court erred in determining that the City
              of Memphis violated §25-1(4)(A)3 of the Code of
              Ordinances of the City of Memphis and Memphis City
              Charter § 67 by calculating Plaintiffs’ pensions upon the
              salary of the former rank of captain (with annual
              adjustments) as opposed to the salary of a battalion

       4
         Prior to reorganization, captains were paid on one of five different rates as
reflected in the Fire Fighting 1987-88 and 1988-89 pay scales, ranging from a base
rate to rate 4.

                                            3
              commander/chief.

              2. Whether the trial court erred in determining that the
              position of battalion commander/chief is a “comparable
              rank” to the former rank of captain within the meaning of
              §25-1(4)(A)3 of the Code of Ordinances of the City of
              Memphis.

              3. Whether the trial court erred in directing the City of
              Memphis to calculate Plaintiffs’ pension based upon the
              salary of a battalion commander/chief.

       We will consider the issues together. The City asserts that after reorganization,

the duties of the newly designated ranks materially changed, and upon the elimination

of the rank of captain, there is no comparable position in the hierarchy. Plaintiffs, on

the other hand, assert that the duties of the various positions are not the correct criteria,

but that the ranking in the hierarchy is the determinative factor. They assert that prior

to reorganization, the captain held a rank just below chief and just above lieutenant,

and, therefore, after reorganization, the comparable rank of captain would be the

position designated just above lieutenant and just below chief, which in this instance

is battalion commander.

       The core of our decision rests with the provisions of City Charter, Sec. 67, and

City Ordinance, Sec. 25.1 (4)(a) and 3.

       Article 10, Sec. 67 of the Charter of the City of Memphis provides:

              Section 67. Automatic promotion to captain after thirty
              years.
                      Any fireman or policeman, who shall have served
              the City of Memphis for a period of thirty 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 of 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 services 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.
              (Priv. Acts 1927, Ch. 521; Ord. No. 2725, §1, 5-23-78).

       Sec. 25-1 (4)(a) 3 of the City of Memphis provides:

                      For any police officer or firefighter credited with thirty
              (30) or more years of service, and eligible for automatic
              promotion to captain or comparable rank in the police or
              fire divisions of the city under charter section 67, his
              average monthly compensation shall be the current


                                              4
              monthly base compensation of a captain or comparable
              rank in the police or fire divisions of the city as of the date
              of his retirement, plus any shift premium pay, hazardous
              premium pay, holiday pay, longevity pay and incentive pay,
              excluding overtime pay, earned during the immediately
              preceding twelve (12) months.

       This Court previously dealt with Sec. 67 of the Charter in Burrell v. City of

Memphis, unpublished opinion filed August 16, 1989 (permission to appeal denied

November 6, 1989) (1989 WL 92164).          In Burrell, a number of firefighters filed suit

seeking reinstatement of their employment to the Memphis Fire Service Division with

the rank of captain. The plaintiffs contended that the City violated Sec. 67 of the

Charter by not permitting them to work in the position of firefighting captain until such

time as they decided to retire. The issue for review was stated:

                     Whether the decision of the Trial Court, which
              interpreted the provisions of Section 67 of the Charter of
              the City of Memphis regarding the promotion and continued
              employment of 30-year police and fire department
              employees as being permissive rather than mandatory, was
              erroneous as a matter of law.

Id. at *1. Affirming the trial court, this Court held that the provisions of Section 67 did

not create a guarantee of employment but did provide for automatic promotion to

captain at the completion of thirty years of service and a captain’s pension upon

retirement. Id. at *2. The Court’s ruling in Burrell effectively relegates the automatic

promotion provision of Section 67 to purely a retirement tool. Such promotion to

captain rewards the employee for faithful service but provides no automatic benefit if

employment is continued after thirty years. Therefore, we must examine the Charter

provision and the applicable ordinance in light of the court’s ruling in Burrell.

       We first note that Section 67 of the Charter is quite specific that as to firemen

the promotion is to the rank of captain. There is no provision in the Charter for any

promotion to any other rank. Apparently recognizing that changes could occur in the

organization, the City, by Section 25-1 (4)(a) 3, provided for the calculation of the

proper retirement pay for those eligible under Section 67 of the Charter. The first

inquiry should be, “what is a comparable rank within the meaning of the Ordinance.”

Comparable has been defined as “(1) capable of or suitable for comparison; (2)

equivalent, similar.” Webster’s New Collegiate Dictionary (1981).


                                            5
       Without belaboring the point, there is ample evidence in the record, and it is

basically undisputed, that the job description, responsibilities, and duties of captain as

that position existed prior to the 1988 reorganization and of a battalion commander as

that position exists after the reorganization are vastly different. For example, prior to

the reorganization, a captain was the officer in charge of a firefighting company. The

company was assigned to a particular piece of equipment, such as a pumper. Five

firefighters were assigned to the equipment with generally, a captain, a lieutenant, a

driver, and two privates, and, in some instances, a lieutenant, a driver and three

privates. The captain was in charge of that company and rode the equipment with his

personnel. After reorganization, the battalion commander was placed in charge of four

fire houses and was assigned a separate vehicle for his use. The battalion commander

was in charge of all of the companies in each fire house and responded to fire calls in

his vehicle and acted in a supervisory capacity.

       As heretofore noted, however, plaintiffs assert that duties and responsibilities is

not the correct criteria for determining a comparable rank and that the comparable rank

is the rank or standing of the position in relation to the hierarchy. We must respectfully

disagree with plaintiffs.

       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 the fact that the pay for the respective position is determined on

the basis of the responsibilities and duties imposed upon that rank, we are of the

opinion that a “comparable rank” as used in the Ordinance, refers to an equivalent

position of responsibility, regardless of the title thereof. Based on the record before us,

we cannot agree with the chancellor’s finding that battalion commander is a comparable

rank to that of the previous rank of captain.

       It also appears to this Court that since the provision of Section 67 is for the

purposes of retirement pension only, 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.

The rank of captain in the pension structure could be considered a comparable rank to

the rank of captain in the previous command structure. In any event, it appears that the



                                            6
City has attempted to take every step to assure the firemen that they will have the

enhanced pension benefits notwithstanding the fact that the position of captain is

eliminated in the interest of a better and more efficient operation.

       We note that the trial court did not consider plaintiffs’ equal protection claim. In

the case’s previous trip to this Court, this Court remanded the case to the trial court for

a determination of the equal protection claim, and since it has not been disposed of,

we must remand the case to the trial court for further proceedings on that claim.

       Accordingly, the judgment of the trial court is reversed. The case is remanded

to the trial court for entry of a declaratory judgment that calculation of the pension rights

of plaintiff should be based upon captain’s pay as it existed prior to the reorganization

with the appropriate increases and other benefits as provided by ordinance. On

remand, the court shall also consider plaintiffs’ equal protection issue. Costs of appeal

are assessed one-half to appellant and one-half to appellees.

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

CONCUR:


__________________________________
ALAN E. HIGHERS, JUDGE


__________________________________
HOLLY KIRBY LILLARD, JUDGE




                                             7
