IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
AMANDA LINN CASHION, ) FILED
)
Plaintiff/Appellant, ) March 19, 1997
)
Cecil W. Crowson
) Appellate Court Clerk
VS. )
) Davidson Chancery
) No. 94-3739-II
EVELYN C. ROBERTSON, JR., in )
his capacity as Commissioner, ) Appeal No.
Tennessee Dept. of Mental Health ) 01A01-9506-CH-00257
and Mental Retardation, and )
DON G. HOLT, in his capacity as )
Commissioner, Tennessee Dept. of )
Personnel, )
)
Defendants/Appellees. )
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE C. ALLEN HIGH, CHANCELLOR
For the Plaintiff/Appellant: For the Defendants/Appellees:
Amanda Linn Cashion, Pro Se John Knox Walkup
Memphis, Tennessee Attorney General and Reporter
Sherry E. Martin
Assistant Attorney General
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves the Department of Mental Health and Mental
Retardation’s dismissal of a probationary staff attorney because she was “not
fitting in.” After unsuccessfully seeking a declaratory order from her former
department, the Civil Service Commission, and the Department of Personnel, the
staff attorney filed an action in the Chancery Court for Davidson County
challenging her termination and seeking back pay, expungement of her
employment records, and attorney’s fees. The trial court granted the motion to
dismiss, and the staff attorney has perfected this appeal. While the trial court
properly held that it lacked subject matter jurisdiction over the claims for
monetary relief, it erred by holding that it lacked subject matter jurisdiction over
the claim for declaratory relief. We have determined, however, that the complaint
fails to state a claim for a declaratory relief under Tenn. Code Ann. § 4-5-224
(1991).
I.
Amanda Linn Cashion began working for the Department of Mental Health
and Mental Retardation (“DMHMR”) on July 25, 1994. She was classified as an
“Attorney III” and was assigned to the Arlington Developmental Center in Shelby
County. The Arlington Developmental Center was at that time the subject of
federal litigation commenced by the United States Department of Justice
concerning DMHMR’s failure to provide its residents with a safe environment.
On her second day at work, Joseph Boyd, the Department’s chief counsel,
invited Ms. Cashion to accompany him to a conference at the University of
Tennessee Medical School in Memphis. While traveling to the conference site,
Mr. Boyd explained the pending federal lawsuit to Ms. Cashion and, according to
her, made numerous derogatory remarks about her immediate supervisor at
Arlington and about an assistant state attorney general representing the DMHMR
in the federal litigation. Ms. Cashion promptly shared Mr. Boyd’s remarks with
her immediate supervisor.
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Several days later, Ms. Cashion and the other DMHMR staff attorneys met
in Nashville to discuss the Department’s response to the expected federal
investigations of the Department’s other developmental centers. During this
meeting, Ms. Cashion was extremely critical of the DMHMR’s handling of the
federal investigation and of its standards and procedures at Arlington. She
returned to Memphis following the meeting but did not report for work at
Arlington for several days. She decided to work at home because the Department
had not provided her with “proper office space” at Arlington and because she
believed that her work was on hold while the DMHMR decided how to respond
to several matters in the pending federal litigation.
Ms. Cashion met with Stanley Lipford, Arlington’s interim superintendent,
and Larry Durbin, one of the DMHMR’s assistant commissioners, when she
returned to Arlington on August 22, 1994. Dr. Durbin informed her that the
Commissioner of the DMHMR had decided to terminate her because her
comments at the meeting in Nashville indicated that she was not “fitting in.”
When Ms. Cashion vehemently protested her dismissal, Dr. Durbin and Mr.
Lipford instructed her to clear out her desk, return her keys, and leave the
Arlington premises by the end of the day.
Ms. Cashion received a certified letter from Mr. Lipford on August 27,
1994, stating that she had been placed on “administrative leave” on August 22,
1994 and that her termination from the DMHMR was effective as of August 25,
1994. The letter did not recite the reasons for her termination but rather simply
referred to her discussion with Dr. Durbin. Ms. Cashion later received a
separation notice submitted by the DMHMR to the Department of Employment
Security stating that she had been employed “from 7/25/94 to 8/26/94.” She also
received a copy of a letter from the DMHMR to the Commissioner of Personnel
stating that she had been terminated on August 25, 1994, because her “conduct
in meetings and in other personal contact with DMHMR personnel was such as
to lead us to conclude that she would not become an effective member of
DMHMR’s management and service team.” The letter added that the “quality of
the performance of her professional duties played no part in this decision.”
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On September 2, 1994, Ms. Cashion submitted a petition for a declaratory
order under Tenn. Code Ann. § 4-5-223 (1991) to the DMHMR and the Civil
Service Commission seeking a declaration of her rights as a probationary
employee under Tenn. Code Ann. § 8-30-312 (1993). The Commmissioner of
Personnel, acting as the secretary to the Civil Service Commission, responded that
the Commission did not have authority to hear Ms. Cashion’s “appeal” because
she was still a probationary employee who had not gained career status. The
DMHMR also declined to make a declaratory ruling on the ground that the
petition was within the jurisdiction of the Commissioner of Personnel.
Faced with these refusals to respond to her petitions, Ms. Cashion filed a
petition in the Chancery Court for Davidson County seeking a declaratory
judgment pursuant to Tenn. Code Ann. § 4-5-224 concerning her rights as a
probationary employee. She also sought back pay, expungement of all entries in
her employment records concerning the termination, and attorney’s fees and court
costs. The Commissioners of Personnel and the DMHMR filed a motion to
dismiss the complaint asserting that the trial court lacked subject matter
jurisdiction, that the doctrine of sovereign immunity barred Ms. Cashion’s claims
for monetary relief, and that the complaint failed to state a claim upon which relief
could be granted. On February 16, 1995, the trial court entered an order
dismissing Ms. Cashion’s complaint. Ms. Cashion has perfected this appeal.
II.
MOOTNESS
The defendant commissioners assert as a preliminary matter that Ms.
Cashion’s claims are moot because she has already been terminated. They argue
that Tenn. Code Ann. § 4-5-224 contemplates a continuing statutory violation on
which judicial declaration might have some effect. While we agree with this
statement in principle, we do not find that Ms. Cashion’s claims are moot under
the facts of this case.
The courts should decline to provide judicial relief in cases that do not
involve a genuine and existing controversy requiring the adjudication of present
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rights. State ex rel. Lewis v. State, 208 Tenn. 534, 537, 347 S.W.2d 47, 48 (1961);
Dockery v. Dockery, 559 S.W.2d 952, 954 (Tenn. Ct. App. 1977). Cases must
remain justiciable throughout the entire course of the litigation, and the concept
of mootness involves circumstances that render a case no longer justiciable.
McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). A moot case
is one that has lost its character as a present, live controversy. McCanless v.
Klein, 182 Tenn. 631, 637, 188 S.W.2d 745, 747 (1945). A case will generally be
considered to be moot if it no longer serves as a means to provide some sort of
relief to the prevailing party. McIntyre v. Traughber, 884 S.W.2d at 137;
Massengill v. Massengill, 36 Tenn. Ap. 385, 388-89, 255 S.W.2d 1018, 1019
(1952).
Even though Ms. Cashion has already been terminated, we do not find that
she is seeking relief that would be beyond the courts’ power to grant in an
appropriate case. Even if she is unsuccessful in convincing the courts to set aside
her termination or to grant her monetary relief, she may be entitled to judicial
relief with regard to the other rights she might have under Tenn. Code Ann. § 8-
30-312. Accordingly, we decline to find that this appeal is moot.
III.
THE CLAIMS FOR MONETARY RELIEF
We need not tarry long with Ms. Cashion’s claims for monetary relief.
Because of the sovereign immunity conferred on the State by Tenn. Const. art. I,
§ 17 and Tenn. Code Ann. § 20-13-102(a) (1994), Ms. Cashion can seek monetary
relief in the courts only if the General Assembly has enacted a statute specifically
permitting claims for monetary relief for wrongful discharge from state
employment. Ms. Cashion has not cited and our research has failed to uncover a
statute permitting discharged state employees to file suit against the state for
monetary damages.1 Accordingly, we find that the trial court correctly determined
1
The Civil Service Commission is the only body vested with the authority to grant
monetary relief to wrongfully terminated state employees. See Tenn. Code Ann. § 8-30-328(e),
(f) (1993) (authorizing the Commission to award back pay and benefits and attorney’s fees).
However, only “regular employees” are entitled to this relief. A “regular employee” is one who
(continued...)
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that it lacked subject matter jurisdiction over Ms. Cashion’s claims for monetary
relief. See Stokes v. University of Tennessee, 737 S.W.2d 545, 546 (Tenn. Ct.
App. 1987) (holding that Tenn. Const. art. I, § 17 bars a discharged state
university employee’s suit for reinstatement and back pay).
IV.
THE DECLARATORY JUDGMENT CLAIM
Based on the language of the trial court’s final order, we must presume that
the trial court determined that it lacked subject matter jurisdiction over Ms.
Cashion’s claim for a declaratory judgment and that Ms. Cashion’s petition failed
to state a claim under Tenn. Code Ann. § 4-5-224. We find that the trial court
erred with regard to its subject matter jurisdiction but that Ms. Cashion’s
complaint fails to state a claim upon which relief can be granted.
A.
THE TRIAL COURT’S SUBJECT MATTER JURISDICTION
The concept of subject matter jurisdiction relates to a court’s lawful
authority to adjudicate a controversy brought before it. Turpin v. Conner Bros.
Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988); Standard Sur. & Casualty
Co. v. Sloan, 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943). It hinges upon the
nature of the cause of action and the relief sought. Landers v. Jones, 872 S.W.2d
674, 675 (Tenn. 1994). Subject matter jurisdiction can only be conferred on a
court by the Constitution of Tennessee or by legislative act. Kane v. Kane, 547
S.W.2d 559, 560 (Tenn. 1977); Brown v. Brown, 198 Tenn. 600, 618-19, 281
S.W.2d 492, 501 (1955).
Tenn. Code Ann. § 4-5-224(a) empowers the Chancery Court of Davidson
County to hear and decide declaratory judgment actions concerning the “legal
validity or applicability of a statute, rule or order of an agency to specified
1
(...continued)
holds a regular civil service position and who has completed his or her initial probationary
period. Tenn. Code Ann. § 8-30-101(a)(20) (Supp. 1996); Tenn. Code Ann. § 8-30-328(a)(2).
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circumstances.” The only statutory prerequisites for bringing a declaratory
judgment action under Tenn. Code Ann. § 4-5-224 are that the complainant must
first have requested the agency for a declaratory order pursuant to Tenn. Code
Ann. § 4-5-223 (1991) and that the agency must have declined to issue a
declaratory order. Tenn. Code Ann. § 4-5-224(b).
The trial court unquestionably had subject matter jurisdiction over
declaratory judgment actions brought in accordance with Tenn. Code Ann. § 4-5-
224. The only question remaining is whether Ms. Cashion demonstrated that she
satisfied the statutory requirements for bringing such an action. Her petition
demonstrates that she first requested the DMHMR, the Civil Service Commission,
and the Department of Personnel to render a declaratory order concerning her
rights under Tenn. Code Ann. § 8-30-312 and that all three agencies declined to
render a declaratory order. Accordingly, the trial court erred when it concluded
that it lacked subject matter jurisdiction to consider Ms. Cashion’s claim for
declaratory relief.
B.
THE ADEQUACY OF MS. CASHION’S CLAIM
Finding that the trial court had suject matter jurisdiction to hear Ms.
Cashion’s claim does not necessarily entitle her to relief. Her complaint could
still fail to state a claim upon which relief can be granted. Accordingly, we must
examine her petition to determine whether it alleges any state of facts that would
entitle Ms. Cashion to relief. Pemberton v. American Distilled Spirits Co., 664
S.W.2d 690, 691 (Tenn. 1984); Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198
(Tenn. Ct. App. 1994). In doing so, we must take all well-pleaded allegations in
her petition as true, and we must also construe the petition liberally in Ms.
Cashion’s favor. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938
(Tenn. 1994); Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992).
Tenn. Code Ann. § 4-5-224 provides that the courts may grant declaratory
relief when “the statute, rule or order, or its threatened application, interferes with
or impairs, or threatens to interfere with or impair, the legal rights or privileges of
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the complainant.” Thus, our inquiry must focus on whether the manner in which
the DMHMR, the Civil Service Commission, or the Department of Personnel
interpreted and applied Tenn. Code Ann. § 8-30-312 interfered with or impaired
any of Ms. Cashion’s legal rights or privileges.
Probationary employees in civil service positions enjoy far fewer rights and
privileges than their counterparts who have successfully completed their
probationary period. They are, however, not without three minimal rights under
Tenn. Code Ann. § 8-30-312. First, Tenn. Code Ann. § 8-30-312(a) permits a
probationary employee to work for at least one month before being terminated
unless the appointment was the “result of fraud or error.” Tenn. Code Ann. § 8-
30-312(b). The period provides employees with time to adjust to the position and
to demonstrate their ability to perform the required work. See Tenn. Comp. R. &
Regs. r. 1120-2-.11(1) (1988) (defining the purposes of the probationary period).
Second, Tenn. Code Ann. § 8-30-312(a) specifies that probationary employees
may be terminated either because they are unable or unwilling to perform their
duties satisfactorily or because their habits and dependability do not merit their
continued employment. Third, Tenn. Code Ann. § 8-30-212(a) requires that the
employee be informed of the termination and the reasons therefor.
PREMATURE TERMINATION
Ms. Cashion asserts that the DMHMR violated Tenn. Code Ann. § 8-30-
312(a) by deciding to terminate her and by informing her of its decision during the
first month of her employment. She interprets Tenn. Code Ann. § 8-30-312(a) to
require an appointing authority to put off even considering whether a probationary
employee should be retained for at least one month after employment. We do not
construe Tenn. Code Ann. § 8-30-312(a) so rigidly. Public employers, like their
counterparts in the private sector, must be able to continuously monitor an
evaluate the performance of their employees. An employee’s conduct during the
first month of his or her probationary period may provide an appointing authority
with sufficient grounds for termination, and when that circumstance arises, all that
Tenn. Code Ann. § 8-30-312(a) requires is that the termination take effect one
month after the employee’s initial hiring date.
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Ms. Cashion’s superiors notified her of her termination before she had been
employed for the DMHMR for one month, but her termination took effect on her
one-month anniversary date. Even though Ms. Cashion was placed on
administrative leave on August 22, 1994, she was paid for a full month of work.
Accordingly, the timing of Ms. Cashion’s termination did not violate Tenn. Code
Ann. § 8-30-312(a).
THE STATEMENT OF THE REASONS FOR TERMINATION
Ms. Cashion also asserts that the DMHMR violated Tenn. Code Ann. § 8-
30-312(a) by failing to provide her with an adequate statement of the reasons for
her termination. While she focuses on on Mr. Lipford’s August 25, 1994 letter,
she overlooks the Commissioner of the DMHMR’s September 20, 1994 letter to
the Commissioner of Personnel.
Tenn. Code Ann. § 8-30-212(a) requires an appointing authority to “report
to the commissioner [of personnel] and to the employee removed such action and
the reasons therefor.” While the better practice is to include the statement of
reasons for the termination in the employee’s termination letter, an appointing
authority technically complies with Tenn. Code Ann. § 8-30-312(a) by stating its
reasons in the notice it sends to the Commissioner of Personnel and the employee.
Mr. Lipford’s August 25, 1994 letter does not provide adequate notice of the
reasons for terminating Ms. Cashion because it refers only to her “discussion with
Dr. Larry Durbin.” However, the September 20, 1994 letter to the Commissioner
of Personnel contains a statement of the reasons for Ms. Cashion’s termination.
Tenn. Code Ann. § 4-5-224 only empowers the courts to determine whether the
appointing authority informed a probationary employee of its reasons for
terminating the employee; it does not empower the courts to second-guess the
appointing authority’s decision. Since the September 20, 1994 letter contains a
statement of the DMHMR’s reasons for terminating Ms. Cashion, it complies with
Tenn. Code Ann. § 8-30-312(a).
V.
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We affirm the judgment and remand the case to the trial court for whatever
further proceedings may be required. We also tax the costs of this appeal to
Amanda Linn Cashion and her surety for which execution, if necessary, may
issue.
____________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
________________________________
HENRY F. TODD, P.J., M.S.
________________________________
BEN H. CANTRELL, JUDGE
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