Mickel G. Hoback v. City of Chattanooga

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 29, 2015 Session

MICKEL G. HOBACK v. CITY OF CHATTANOOGA

Appeal from the Chancery Court for Hamilton County
Nos. 13-0370 & 09-0965 Jeffrey M. Atherton, Chancellor

No. E2014-01678-COA-R3-CV-FILED-SEPTEMBER 28, 2015

This case involves the 2009 termination of a city police officer‟s employment on grounds
of unfitness for duty due to post-traumatic stress disorder suffered as a result of the
officer‟s active military service while on leave from his employment. Following an
administrative hearing in November 2009, the city council originally upheld the police
chief‟s termination of the officer‟s employment. The officer commenced this action in
state court by filing a petition for writ of certiorari with the trial court. Upon hearing, the
trial court found, inter alia, that the city council had incorrectly applied a statute,
Tennessee Code Annotated § 38-8-106, which had been overruled by an agreed consent
order previously entered into between the United States and the State of Tennessee. See
United States v. Tennessee, Civil Action No. 1:98-1357. The trial court therefore
reversed the city council‟s decision and ordered the officer‟s reinstatement with back pay.
The city appealed to this Court. In a 2012 decision, this Court affirmed the trial court‟s
finding regarding the incorrect application of Tennessee Code Annotated § 38-8-106 and
remanded the case, directing the trial court to instruct the city council regarding the
appropriate legal standard. See Hoback v. City of Chattanooga, No. E2011-00484-COA-
R3-CV, 2012 WL 2974762 at *6 (Tenn. Ct. App. July 20, 2012). Following remand, the
city council conducted a second hearing and again voted to uphold the prior termination
of the officer‟s employment. The officer filed a second writ of certiorari with the trial
court, which the court subsequently consolidated with the first writ, resulting in this
consolidated action. Upon the trial court‟s order, the city council submitted its written
findings pursuant to its second hearing on the matter. Following a hearing, the trial court
subsequently entered a final order upholding the officer‟s employment termination on the
merits. The officer has appealed to this Court, requesting reinstatement to his former
employment. Having determined that the officer has previously obtained a judgment for
front pay upon his election of such remedy in a federal case arising from the same
circumstances, we conclude that the officer is precluded from seeking the remedy of
reinstatement. We therefore affirm the trial court‟s judgment on a ground different from
that found by the trial court.
 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, C.J., and D. MICHAEL SWINEY, J., joined.

W. Gerald Tidwell, Jr., W. Adam Izell, and Todd A. Davis, Chattanooga, Tennessee, for
the appellant, Mickel G. Hoback.

Phillip A. Noblett and Melinda Foster, Chattanooga, Tennessee, for the appellee, the City
of Chattanooga.

OPINION

I. Factual and Procedural Background

The petitioner, former Chattanooga Police Department (“CPD”) officer Mickel G.
Hoback (“Officer Hoback”), appeals the trial court‟s affirmation of his 2009 employment
termination by the respondent employer, the City of Chattanooga (“the City”). The
instant action has been before this Court on appeal once previously. See Hoback v. City
of Chattanooga, No. E2011-00484-COA-R3-CV, 2012 WL 2974762 (Tenn. Ct. App.
July 20, 2012) (“Hoback I”). In Hoback I, this Court summarized the factual and
procedural background leading to the first appeal as follows in pertinent part:

Mickel G. Hoback began working as a police officer for the CPD in July
2000. Officer Hoback worked for the [CPD] continuously from his hire
until March 19, 2002 when he went to basic training for the United States
Army. Following basic training, he worked as a CPD officer until June 22,
2004 when his National Guard unit was activated and deployed to Iraq.
Officer Hoback served in Iraq and was discharged from active duty on
November 25, 2005. Following discharge from active duty, he resumed his
employment as an officer with CPD. After Officer Hoback returned to his
duties with the CPD, he was diagnosed with post-traumatic stress disorder
(PTSD), which was secondary to his combat experience in Iraq. He was
granted a service-connected disability by the Department of Veterans
Affairs [“VA”], effective May 22, 2008.

Officer Hoback received counseling and medication from the VA for
PTSD. On or about April 13th or 14th, 2009, an incident occurred that led
to Officer Hoback‟s termination from the CPD. He met with his counselor
because of a possible adverse reaction to medication prescribed by a VA
2
 medical doctor. The counselor suggested that Officer Hoback consult with
a medical doctor regarding this issue, which he did. The medical doctor,
Dr. Acosta, concluded that Officer Hoback was suicidal and she arranged
that he be involuntarily committed to the VA hospital in Murfreesboro.
Officer Hoback refused to be committed and he contacted his counselor,
who advised him to drive himself to the VA hospital and voluntarily seek
evaluation. He did so and he was voluntarily admitted for observation and
he was discharged the following day.

The CPD became aware of this incident and on April 15, 2009 a
letter from the Chief of Police was delivered to Officer Hoback. The letter
informed him that he had been placed on administrative leave and that a
“fitness for duty” psychological examination was required before he could
return to duty. CPD hired psychologist Donald Brookshire to conduct the
required examination and his report stated that Officer Hoback was “unfit
for duty.” Officer Hoback asked for another examination, which was
performed by Terrell McDaniel, Ph.D. Dr. McDaniel concluded that
Officer Hoback was “fit for duty[.”] Dr. McDaniel‟s report contained the
following summary of his conclusions:

Mr. Hoback is fit for duty and should be returned to work as a
patrol officer without restriction. He is not psychotic and
there is no evidence of significant symptoms or signs that
[sic] this time which would preclude his return to normal
duties. Nevertheless, administration may wish to choose a
position that provides acceptable levels of monitoring at the
beginning of his re-engagement.

The Police Chief informed Officer Hoback that he was terminated
from the CPD based on Dr. Brookshire‟s report. Officer Hoback appealed
his termination to the Chattanooga City Council. A hearing was held
before a panel of three members of the City Council on November 9, 2009.

The City Council was presented with two legal standards that were
utilized by the Police Chief when he terminated Hoback. These standards
are found in Tenn. Code Ann. § 38-8-106 and the Rules of the Tennessee
Peace Officers Standards and Training Commission (POST). Two of the
three members of the panel voted to confirm the CPD‟s termination of
Officer Hoback.

Id. at *1-2.
3
 Officer Hoback originated this action in state court on December 2, 2009, when he
filed an application for writ of certiorari with the Hamilton County Chancery Court (“trial
court”), seeking judicial review of the November 2009 decision of the Chattanooga City
Council (“the City Council”). As this Court explained in Hoback I:

The Trial Court issued a Memorandum Opinion and Order on
February 1, 2011, reversing the City Council‟s decision to sustain [Officer]
Hoback‟s termination and ordering that he be reinstated to the Chattanooga
Police Department with back pay. The Chancery Court found the City
Council was instructed to apply two inappropriate legal standards, thus the
City Council‟s decision was “arbitrary[.”] The Trial Court also found the
City Council‟s findings were unsupported by substantial and material
evidence in light of the entire record and that a reasonable person would
draw a different conclusion from the evidence presented. The City of
Chattanooga filed a Notice of Appeal on March 2, 2011.

Id. at *1.

This Court in Hoback I affirmed the trial court‟s finding that the City Council had
been erroneously instructed to apply two incorrect legal standards. Id. at *6. The first of
these standards was contained within Tennessee Code Annotated § 38-8-106, which set
forth qualifications of police officers. In particular, the City Council had been instructed
to apply the version of subsection 106(9) in effect in November 2009, which provided:

Any person employed as a full-time police officer, and any person
employed or utilized as a part-time, temporary, reserve or auxilliary police
officer or as a special deputy, shall:

***

(9) Be free of all apparent mental disorders as described in the
Diagnostic and Statistical Manual of Mental Disorders, Third
Edition (DSM-III) of the American Psychiatric Association.
An applicant must be certified as meeting these criteria by a
qualified professional in the psychiatric or psychological
field.1

1
This subsection was amended by the General Assembly, effective April 12, 2013, to provide:

(9) Have been certified by a Tennessee licensed health care provider qualified in the
psychiatric or psychological field as being free from any impairment, as set forth in the
4
 As this Court concluded in Hoback I, this statutory section was unenforceable and
no longer valid pursuant to a 2003 Consent Order and Judgment (“Consent Order”)
entered in an action brought by the United States Department of Justice against the State
of Tennessee. Hoback I, 2012 WL 2974762 at *5 (citing United States v. Tennessee,
Civil Action No. 1:98-1357). This Court further explained:

The United States Department of Justice, filed suit against the State
of Tennessee alleging that several Tennessee statutes, including Tenn. Code
Ann. § 38-8-10[6], violate the Americans with Disabilities Act of 1990, “by
creating a blanket exclusion of all individuals with „apparent mental
disorders‟ from certain types of employment.” The United States alleged
that the statutes at issue, including Tenn. Code Ann. § 38-8-10[6],
discriminated against individuals on the basis of disability in violation of . .
. [the ADA] by using qualifications standards, employment tests or other
selection criteria that screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities, when the standard, test
or other selection criteria, as used by the covered entity, has not been
shown to be job related for the position in question and consistent with
business necessity.” The parties agreed to a Consent Order and Final
Judgment that provided in part: A job applicant or incumbent employee
may not be disqualified on the basis of a disability unless, after undertaking
an individualized assessment of the individual, an employer determines
that: (1) the individual cannot perform the essential functions of the job,
with or without accommodations, including, with respect to incumbent,
employees, reassignment, and/or (2) the individual would pose a significant
risk to the health or safety of self or others that cannot be reduced or
eliminated by reasonable accommodation. The State further agreed that the
Tennessee Department of Personnel would present to the Governor a
request to rescind the four statutes at issue, including Tenn. Code Ann. §
38-8-10[6], which the Governor would submit to the Tennessee Legislature
in 2003, and thereafter as necessary. The State also agreed that the
Tennessee Office of the Attorney General would inform the Tennessee
Legislature that the four statutes are invalid because they conflict with

current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of
the American Psychiatric Association at the time of the examination, that would, in the
professional judgment of the examiner, affect the applicant‟s ability to perform an
essential function of the job, with or without reasonable accommodation.

See 2013 Pub. Acts Ch. 137 § 4 (S.B. 175).

5
 federal law. The State agreed to not enforce or implement the statutes and
to promulgate new written policies consistent with the ADA to replace the
current policies that implement the statutes. The State agreed to inform all
political subdivisions in writing that the statutes at issue, including Tenn.
Code Ann. § 38-8-10[6] should not be applied, implemented or enforced.

Id. at *5 (typographical error in original corrected to indicate applicable subsection, -106,
rather than an unrelated subsection, -108).

The second legal standard the City Council had been instructed to apply in error
was contained within the Rules of the Tennessee Peace Officers Standards and Training
Commission (“POST”). As noted in Hoback I, the Tennessee POST Commission
regulations furnished the following standard in 2009, at the time the City Council reached
its initial decision, regarding the pre-employment mental state of police officers:

All full-time commissioned law enforcement officers employed by an
agency required to meet minimum standards must meet pre-employment
requirements and, upon completion of the required basic training, will be
issued a POST certificate.

(1) Full-time Commissioned Law Enforcement Officer Pre-employment
Requirements. The Commission shall issue a certificate of compliance to
any person who meets the qualifications for employment and satisfactorily
completes a POST certified Basic Law Enforcement Training Academy.
All persons employed as a full-time law enforcement officer, after July 1,
1982, must be certified by POST and shall comply with the following
preemployment requirements:

***

(j) Have been certified by a Tennessee Licensed Health Care Provider
qualified in the psychiatric or psychological fields as being free from any
disorder, as set forth in the current edition of the DSM at the time of the
examination, that would, in the professional judgment of the examiner,
impair the subject‟s ability to perform any essential function of the job.

1. No waiver will be granted for mental disorders.

2. A new evaluation shall be required:

6
 a. after a six (6) month break in full-time law enforcement service,
or

b. upon the request of the employing agency, for good cause.

Hoback I, 2012 WL 2974762 at *4-5 (quoting Tenn. Comp. R. & Regs. 1110-02-.03).2
This Court concluded in Hoback I that “[a]s the legal standards in the consent order
should have been applied, there was no need for the Council to have been instructed on
the POST rule.” Hoback I, 2012 WL 2974762 at *6.

In Hoback I, this Court determined that the trial court should have remanded the
case to the City Council with instructions to reconsider the matter with application of the
legal standard delineated in the 2003 Consent Order. Id. at *6. Accordingly, this Court
vacated the trial court‟s reinstatement of Officer Hoback to the CPD and the award of
back pay. Id. At that point in the proceedings, this Court declared the remaining issues
regarding the merits of Officer Hoback‟s dismissal to be pretermitted as moot. Id.

Meanwhile, Officer Hoback had sought relief in federal court by filing an action
against the City with the United States District Court for the Eastern District of
Tennessee in Chattanooga (“District Court”) on April 12, 2010. See Hoback v. City of
Chattanooga, No. 1:10-CV-74, 2012 WL 3834828 at *2 (E.D. Tenn. Sept. 4, 2012)
(“Hoback II”); see also Hoback I, 2012 WL 2974762 at *1 (noting that at the time this
Court‟s decision in Hoback I was issued in July 2012, a judgment in Officer Hoback‟s
favor had been entered in the federal case, but the case was still pending in the District
Court on post-trial motions). In the federal action, Officer Hoback alleged, inter alia,
that his 2009 termination from the CPD violated the Americans with Disabilities Act, 42
U.S.C. §§ 12101 et seq.(“ADA”); the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et
seq. (“Rehabilitation Act”); and the Uniform Services Employment and Reemployment
Rights Act of 1994, 38 U.S.C. §§ 4301-4335 et seq. (“USERRA”). See Hoback II, 2012
WL 3834828 at *2. Upon competing motions for summary judgment, the District Court

2
The version of the Tennessee POST Commission regulations 1110-02-.03(1)(j) effective as of August
18, 2015, reads in pertinent part:

(j) Have been certified by a Tennessee Licensed Health Care Provider qualified in the psychiatric or
psychological fields as being free from any impairment, as set forth in the current edition of the
Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric
Association at the time of the examination, that would, in the professional judgment of the
examiner, affect the person‟s ability to perform an essential function of the job, with or without a
reasonable accommodation. Tenn. Comp. R. & Regs. 1110-02-.03(1) (emphasis added to
highlight changes since 2009 version). In addition, the statement in the 2009 version of (1)(j)1.
that “[n]o waiver will be granted for mental disorders” has been deleted from the current version.
Id.
7
granted partial summary judgment in favor of the City on the USERRA claim only. Id.
Following a jury trial, the District Court entered a judgment on September 19, 2011, in
accordance with the jury‟s verdict finding in favor of Officer Hoback on the ADA and
Rehabilitation Act claims. See Hoback II, 2012 WL 3834828 at *2; Hoback I, 2012 WL
2974762 at *1. The judgment awarded Officer Hoback a total of $680,000 in damages,
including back pay in the amount of $130,000; front pay in the amount of $300,000; and
compensation for emotional distress in the amount of $250,000. See Hoback II, 2012
WL 3834828 at *11-17 (denying the City‟s post-trial motions except for a partial grant to
remit the jury‟s award of back pay to “take into account $7,780 of wages earned between
termination and trial.”). Upon the City‟s appeal to the United States Sixth Circuit Court
of Appeals, the District Court‟s decision was eventually upheld. Hoback v. City of
Chattanooga, 550 Fed. Appx. 257, 260 (6th Cir. Dec. 20, 2013) (“Hoback III”).3

Prior to the resolution of the federal appellate process and upon remand of the
state case at bar, a three-member panel of the City Council conducted a second hearing
on April 8, 2013. One of the Council members who had voted during the first hearing in
2009 did not sit on the panel due to a conflict, and a Council member who had not heard
the original presentation of the case was substituted. The panel reviewed the record of
the 2009 Council hearing and considered oral argument by counsel for both parties,
including instructions regarding application of the legal standard contained within the
Consent Order. At the close of the hearing, the panel voted two-to-one in favor of
upholding the termination of Officer Hoback‟s employment. A transcript of that hearing
demonstrates that the Council member voting against upholding the termination
explained his reasoning but that the two members voting in favor offered no explanation
at that time.

On May 17, 2013, Officer Hoback subsequently filed with the trial court a second
petition for writ of certiorari, requesting that it be consolidated with his first action. The
trial court, following its issuance of the second writ, entered an agreed order on June 19,

3
The record before us includes the trial court‟s order to supplement the record, entered on July 29, 2015,
following oral argument before this Court, upon companion motions from both parties. Upon the trial
court‟s direction, the following were supplemented to the record: “(1) Transcripts of the Federal Charge
Conference and Pretrial Order[;] (2) Suggested Charges to the Jury filed by Mickel G. Hoback on July 15,
201[1;] (3) Jury Verdict Form in the United States District Court case styled: Mickel G. Hoback v. City of
Chattanooga, Case No. 1:10-CV-74.” We note also that pursuant to Tennessee Rule of Evidence
201(b)(2), this Court may take judicial notice of a fact “not subject to reasonable dispute, in that it is . . .
capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” See, e.g., City of Chattanooga v. Tenn. Regulatory Auth., No. M2008-01733-COA-R12-CV,
2010 WL 2867128 at *3 (Tenn. Ct. App. July 21, 2010) (“We may take judicial notice of our Court‟s
records and of records from „other cases advancing a similar claim of relief and involving the same
parties or in collateral cases presenting similar or related issues.‟”) (quoting Mosely v. Brandon, No.
M2006-02398-CCA-R3-HC, 2007 WL 1774309 at *4 (Tenn. Crim. App. June 20, 2007)).
8
2013, consolidating the two writs of certiorari into one action. The City subsequently
filed an answer and a trial brief. Following a hearing conducted on November 5, 2013,
the transcript of which is not in the record on appeal, the City filed a “supplemental post-
trial brief” in which it addressed the trial court‟s concern, apparently expressed during the
hearing, regarding the silence of two City Council members as to the basis for their votes
upholding Officer Hoback‟s termination. The City maintained that the City Council
members were following accepted Council procedures. Officer Hoback concomitantly
filed a memorandum in support of his writ, requesting that the trial court find the City
Council‟s decision to be arbitrary, in part based on the lack of rationale provided by the
members voting to uphold the employment termination. On January 2, 2014, the City
filed a second “supplemental post-trial brief,” attaching a copy of the December 2013
Sixth Circuit decision affirming the District Court judgment. The City argued that
Officer Hoback should be precluded from seeking reinstatement of his employment
because he had been awarded the alternative remedy of front pay by the District Court.

In a Memorandum Opinion and Order entered on January 7, 2014, the trial court
remanded the case to the City Council “with instructions to state their findings of fact on
the record.” On February 14, 2014, the trial court entered an “Agreed Order to Deposit
Funds into Registry of Court,” authorizing the City to deposit $200,000 toward the
$300,000 front-pay judgment entered by the District Court, “with the funds not being
released to Mickel Hoback until further Order of this Court, or until this case is finally
concluded.” On April 11, 2014, the City filed a transcript of statements made that day at
a special City Council meeting by the two Council members who had voted in favor of
affirming Officer Hoback‟s employment termination. Each Council member at issue
stated, respectively, that she had voted to affirm termination largely based on issues of
untruthfulness and dishonesty surrounding Officer Hoback‟s claims to VA counselors
and medical evaluators in which he allegedly enhanced his PTSD symptoms to secure
greater disability benefits.

Officer Hoback responded by filing a supplemental brief on June 27, 2014,
asserting that the trial court should confine its consideration to the question of whether he
was psychologically fit to serve as a police officer when the City Council first reviewed
the matter in November 2009. The City simultaneously filed a supplemental brief,
asserting that the trial court should uphold the City Council‟s decision because credibility
concerns regarding a police officer constituted a valid basis for employment termination.
On July 2, 2014, Officer Hoback filed a motion to withdraw from the court‟s registry the
$200,000 previously deposited by the City in partial fulfillment of the front-pay judgment
awarded by the District Court on his behalf.

Following a hearing conducted on July 11, 2014, the trial court announced its
decision to affirm the termination of Officer Hoback‟s employment, finding, inter alia,
9
that the City Council‟s second panel properly considered Officer Hoback‟s credibility as
an appropriate basis for termination. The court also explicitly considered the factors
delineated in Tennessee Code Annotated § 4-5-322(h) for judicial review of a civil
service board‟s decision affecting a civil servant‟s employment. See also Tenn. Code
Ann. § 27-9-114(b)(1) (Supp. 2015). Also on July 11, 2014, the court entered an order
granting Officer Hoback‟s motion to withdraw the $200,000 previously deposited by the
City in the court‟s registry and directed release of those funds to Officer Hoback. The
court entered a final judgment, incorporating its comments made at the close of trial as a
memorandum opinion, on August 5, 2014. Officer Hoback timely appealed to this Court.

II. Issues Presented

Officer Hoback presents four issues for our review, which we have restated
slightly as follows:

1. Whether the trial court erred by finding that the City Council‟s decision
was not arbitrary, capricious, or characterized by an abuse of discretion.

2. Whether the trial court erred by finding that the City Council‟s decision
was made according to lawful procedure.

3. Whether the trial court erred by finding that the City Council‟s decision
was supported by evidence that is substantial and material in light of the
entire record.

4. Whether this Court has the authority to reinstate Officer Hoback to his
employment as an officer with the Chattanooga Police Department.

III. Standard of Review4

Officer Hoback appeals from the trial court‟s judgment rendered pursuant to the
statutory writ of certiorari provided by Tennessee Code Annotated §§ 27-9-101 to -114
(2000 & Supp. 2015). This writ is available following, inter alia, a civil service board
proceeding affecting a civil servant‟s employment. See Tenn. Code Ann. § 27-9-101;
City of Memphis v. Civil Serv. Comm’n, 238 S.W.3d 238, 242 (Tenn. Ct. App. 2007).
Tennessee Code Annotated § 27-9-114(b)(1) provides that “[j]udicial 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
4
We note that Officer Hoback has presented the standard of review as an “issue” in his appellate brief.
We find no substantive disagreement, however, between the parties as to the applicable standard of
appellate review and therefore do not address this standard as a point of argument.
10
standards under the Uniform Administrative Procedures Act [“UAPA”], § 4-5-322.”
Neither party disputes that review of the City Council‟s affirmation of Officer Hoback‟s
employment termination is properly governed by the standard set forth in Tennessee
Code Annotated § 4-5-322(h) (2015). See, e.g., Tidwell v. City of Memphis, 193 S.W.3d
555, 564 (Tenn. 2006) (concluding that “under section 27-9-114,” proceedings before a
city‟s on-the-job inquiry panel, “as well as the standard of judicial review of its decisions,
are governed by the UAPA.”); Burkhart v. City of Clarksville, No. M2010-00050-COA-
R3-CV, 2011 WL 1233562 at *3 (Tenn. Ct. App. Apr. 1, 2011) (citing Tidwell with
approval and concluding that a city‟s hearing committee reviewing its mayor‟s
termination of a fire department employee was acting as a civil service board pursuant to
Tenn. Code Ann. § 27-9-114). We agree that Tennessee Code Annotated § 4-5-322(h)
provides the proper standard of review for the City Council‟s action affecting a civil
servant‟s employment.

Tennessee Code Annotated § 4-5-322(h) provides:

(h) The court may affirm the decision of the agency or remand the case
for 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.

This Court in Hoback I affirmed the trial court‟s initial finding that the City
Council in its first hearing had incorrectly relied upon two inapplicable legal standards
11
and remanded for the trial court to instruct the City Council in the correct standard. See
Hoback I, 2012 WL 2974762 at *6 (citing the Consent Order in United States v.
Tennessee, Civil Action No. 1:98-1357). Because the City Council had employed
improper legal principles, the remaining issues raised in Hoback I were pretermitted as
moot. Id. Upon determining that an agency has employed the proper legal principles,
however, this Court will proceed to consider the agency‟s findings. As this Court has
explained:

Upon confirming that an agency has employed the proper legal
principles in the case under review, this Court must then consider the
disputed factual findings and address whether the agency had a reasonably
sound basis for making those findings. See McEwen v. Tenn. Dept. of
Safety, 173 S.W.3d 815, 820 (Tenn. Ct. App. 2005). Like the trial court,
this Court applies the substantial and material evidence standard in
reviewing the agency‟s findings of fact. Bobbitt v. Shell, 115 S.W.3d 506,
509-10 (Tenn. Ct. App. 2003). Substantial and material evidence is “such
relevant evidence as a reasonable mind might accept to support a rational
conclusion” and to furnish a reasonably sound basis for the decision under
consideration. City of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311,
316 (Tenn. 2007) (quoting Jackson Mobilphone Co. v. Tenn. Pub. Serv.
Comm’n, 876 S.W.2d 106, 110-11 (Tenn. Ct. App. 1993)); Dickson v. City
of Memphis Civil Serv. Comm’n, 194 S.W.3d 457, 464 (Tenn. Ct. App.
2005); Pruitt v. City of Memphis, 2005 WL 2043542, at *7 (Tenn. Ct. App.
Aug. 24, 2005); Bobbitt, 115 S.W.3d at 510.

As directed by the statute, 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. See Tenn. Code Ann. § 4-5-322(h)(5)(B). When the agency
conducts a hearing and can evaluate the witnesses as they testify, this Court
gives the tribunal‟s credibility determinations great weight. Pruitt, 2005
WL 2043542, at *7. Moreover, the substantial and material evidence
standard does not justify reversal of an administrative decision only
because the evidence could also support another result. Martin v. Sizemore,
78 S.W.3d 249, 276 (Tenn. Ct. App. 2001). Rather, we may reject an
administrative determination only if a reasonable person would necessarily
arrive at a different conclusion based on the evidence. Id.

Likewise, Tennessee Code Annotated Section 4-5-322(h)(4) permits
a reviewing court to modify or reverse an administrative decision if it is
“[a]rbitrary or capricious or characterized by abuse of discretion or clearly
12
 unwarranted exercise of discretion.” Tenn. Code Ann. § 4-5-322(h)(4)
(2005). A decision unsupported by substantial and material evidence is
arbitrary and capricious. City of Memphis v. Civil Serv. Comm’n, 216
S.W.3d 311, 315 (Tenn. 2007). Yet, a clear error of judgment can also
render a decision arbitrary and capricious notwithstanding adequate
evidentiary support. Id. at 316. A decision is arbitrary or capricious if it “is
not based on any course of reasoning or exercise of judgment, or . . .
disregards the facts or circumstances of the case without some basis that
would lead a reasonable person to reach the same conclusion.” Id. (quoting
Jackson Mobilphone, 876 S.W.2d at 110-11).

City of Memphis, 238 S.W.3d at 243. Although our review of an agency‟s factual
findings is confined to the provisions of Tennessee Code Annotated § 4-5-322, we review
matters of law de novo with no presumption of correctness. See Tenn. R. App. P. 13(d);
Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256, 264 (Tenn. 2009).

IV. Remedy of Reinstatement Precluded by Prior Judgment

Determining this issue to be dispositive, we first address whether Officer
Hoback‟s requested remedy of reinstatement is precluded by the judgment awarding front
pay previously entered on his behalf by the District Court and affirmed by the Sixth
Circuit. On appeal, Officer Hoback has requested that this Court reverse the trial court‟s
affirmation of his employment termination and reinstate him as a police officer with the
CPD. The City contends that Officer Hoback would receive a double recovery were he to
be reinstated because he has already received a front-pay award in the amount of
$300,000 as part of the federal court judgment. Upon careful review, we conclude that,
pursuant to the election of remedies doctrine, Officer Hoback is precluded from seeking
the remedy of reinstatement by his previous election of the front-pay remedy and the
ultimate front-pay judgment entered on his behalf by the District Court and paid to him
by the City.

In order for the election of remedies doctrine to apply, “a fact situation must
contain: (a) factors making more than one remedial form available; (b) the forms must in
their theory, be inconsistent or repugnant; (c) the choice must be a wilful one,
consciously made; and (d) the remedy chosen must be pursued so as to clearly indicate an
irrevocable election.” Barger v. Webb, 391 S.W.2d 664, 666 (Tenn. 1965); see also Petty
v. Darin, 675 S.W.2d 714, 716 (Tenn. Ct. App. 1984). As our Supreme Court has
explained:

The election of remedies doctrine has two general applications: (1) a
plaintiff may be estopped from pursuing additional remedies once a
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 plaintiff has made a choice to pursue a specific remedy in another forum or
lawsuit, Purcell Enterprises, Inc. v. State, 631 S.W.2d 401, 409 (Tenn.
App. 1981); and (2) a plaintiff may be forced to elect between different
remedies “[w]here the remedies are so inconsistent or repugnant that
pursuit of one necessarily involves negation of the other.” Wimley v.
Rudolph, 931 S.W.2d 513, 515 (Tenn. 1996).

Forbes v. Wilson Cnty. Emergency Dist. 911 Bd., 966 S.W.2d 417, 421 (Tenn. 1998).

Tennessee courts have recognized that an employee who is found to be wrongfully
discharged “can be made whole through an award of back pay and either reinstatement
or, in certain circumstances, front pay.” Sasser v. Averitt Express, Inc., 839 S.W.2d 422,
432 (Tenn. Ct. App. 1992) (citing Albermarle Paper Co. v. Moody, 422 U.S. 405, 416-22
(1982)). Reinstatement is the preferred remedy, but courts have recognized that it is not
always feasible. Sasser, 839 S.W.2d at 433. “Reinstatement is an equitable remedy . . .
and front pay is an equitable substitute for reinstatement.” Id. at 435 (internal citations
omitted). Regarding the purpose of front pay, this Court explained in Sasser:

In cases where reinstatement is not feasible, front pay is intended to
assist in making a discharged employee whole by complementing a back
pay award. While back pay is intended to provide an award for injuries
occurring prior to trial, front pay is an award for future injury that may
occur after trial. It is, simply, an award of prospective damages for the loss
of future earnings.

Id. at 433 (internal citations omitted). Front pay “is not intended to be punitive . . . or to
provide an employee a windfall.” Id.

Although Officer Hoback‟s action in federal court arose from the same set of
circumstances as the instant action, his claims were brought pursuant to federal law,
specifically the ADA, the Rehabilitation Act, and the USERRA. See Hoback II, 2012
WL 3834828 at *2. The jury verdict and ultimate judgment entered by the District Court
in favor of Officer Hoback were upon the finding that the City had violated the ADA and
the Rehabilitation Act by terminating his employment. See id.; see also Hoback I, 2012
WL 2974762 at *2. Officer Hoback commenced the instant action under a separate legal
theory, requesting judicial review of the City Council‟s decision as allegedly arbitrary,
capricious, characterized by an abuse of discretion, made according to unlawful
procedure, or unsupported by substantial and material evidence pursuant to the standard
delineated in Tennessee Code Annotated § 4-5-322(h).

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 To clarify, because Officer Hoback‟s state claim is separate from that raised in
federal court, the doctrine of res judicata, or claim preclusion, does not apply to this
action. See Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012) (explaining that a
successful defense predicated on res judicata or claim preclusion requires, inter alia,
“that the same claim or cause of action was asserted in both suits”); see e.g., Forbes, 966
S.W.2d at 421 (concluding that when the plaintiff‟s claims for violation of the Open
Meetings Act and discriminatory demotion, both arising from a demotion in her
employment position, “created two separate and distinct causes of action under two
separate remedial statutory schemes,” she was entitled to pursue both claims). However,
pursuant to the election of remedies doctrine, if Officer Hoback elected and received the
remedy of front pay as a substitute for reinstatement, he is precluded from seeking the
remedy of reinstatement in this action. See id. at 421 (“The purpose behind the election
of remedies doctrine is to prevent „double redress‟ for a single wrong.”) (quoting Barger,
391 S.W.2d at 666-67); see also Flynn v. Shoney’s Inc., 850 S.W.2d 458, 461 (Tenn. Ct.
App. 1992) (holding that because “front pay is a substitute for reinstatement,” a plaintiff
electing one “would not be entitled to both.”).

Officer Hoback has asserted on appeal that the City is arguing for the first time to
this Court that the reinstatement claim is precluded by the prior award of front pay. Upon
our thorough review of the record, we disagree with this assertion. The record indicates
that the City first raised the issue in its second supplemental post-trial brief, filed on
January 2, 2014. The City attached to this brief a copy of the December 20, 2013 Sixth
Circuit decision affirming the District Court‟s September 2011 judgment. See Hoback
III, 550 Fed. Appx. at 260. Although the City did not specifically employ the phrase,
“election of remedies,” in its January 2014 brief, the City did argue that Officer Hoback‟s
writ of certiorari should be denied for seeking reinstatement when he had been awarded
front pay in federal court. Thereafter, during the July 11, 2014 hearing before the trial
court, counsel for each party, respectively, discussed the Sixth Circuit‟s affirmation of the
District Court‟s judgment during oral argument. The City argued, inter alia, that the
award of front pay precluded the remedy of reinstatement. Specifically, the following
exchange occurred during oral argument before the trial court:

Trial Court: They‟re [Officer Hoback‟s counsel] not asking
for back pay, just so we‟re clear. It‟s already
been presented by counsel. All they‟re looking
for at this point is reinstatement.

The City‟s Counsel: Yes, sir. But they said that as to the back pay
amount, Your Honor. The front pay is another
matter because front pay is an issue of what a
jury has paid to an individual for the remainder
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 of their career in connection with a claim of
discrimination. And as such, that would be
future pay, not just back pay to this point in
time. So I would assert that the Plaintiff in this
matter has been fully compensated under the
Americans with Disabilities Act for his claims
to the time of the hearing and also into the
future by that, which I think is inconsistent with
a request at this point in time for reinstatement
and additional pay from the City of
Chattanooga as a police officer in that position.

We determine that the issue of Officer Hoback‟s prior election of remedies between two
inconsistent choices, reinstatement or front pay, is properly before this Court and was
also presented to the trial court prior to that court‟s final judgment in this matter.

We next address whether Officer Hoback consciously and willfully chose to
pursue the remedy of front pay as an irrevocable election in his federal case. See Barger,
391 S.W.2d at 666. Upon the parties‟ respective motions and the trial court‟s order, the
appellate record has been supplemented with the following documents from the District
Court action: suggested charges to the jury filed by Officer Hoback on July 15, 2011; the
transcript of the federal jury charge conference, conducted on September 14, 2011; the
District Court‟s final pretrial order, entered September 16, 2011; and the completed jury
verdict form, entered September 15, 2011. In his suggested charges to the jury, Officer
Hoback sought “damages for back pay, front pay, and lost benefits, including but not
limited to retirement and pension benefits, and that he be awarded compensatory
damages for humiliation and embarrassment, invasion of privacy, emotional pain and
suffering, mental anguish, loss of enjoyment of life, and inconvenience.” (Emphasis
added.) Officer Hoback included the following suggested instruction regarding front pay:

Front Pay

Damages may also include loss of future earnings, also called front
pay. These damages would be measured by the compensation in the form
of salary which MICKEL G. HOBACK could reasonably be expected to
receive, if he had not been the victim of illegal discrimination, for as long
as he would reasonably be expected to be employed by the CITY OF
CHATTANOOGA. In deciding whether MICKEL G. HOBACK is entitled
to front pay and in calculating an amount of front pay, you should take into
consideration the nature and degree of severity of his disability. You may
consider whether he has a permanent or long-term disability, and whether
16
 he has proven that he is suffering from PTSD. You may also consider the
effect of any other disabilities that he may have. You should also bear in
mind and follow the previous instructions regarding his duty to mitigate
damages by making reasonable efforts to secure and accept other
employment. In calculating any award of front pay or loss of future
earnings, it can reasonably be expected that his future earnings would have
increased at approximately the pace of interest rates or of inflation. An
economically accurate measure of his lost future income would include his
expected salary over a number of years including expected pay raises with
each year[‟s] sum discounted to present cash value through the use of the
appropriate discount rate. However, you may also obtain a reasonable
approximation of this figure by multiplying the amount of his present
expected salary by a set number of years, neither including future pay raises
nor applying a discount rate.

(Footnotes omitted.)

During the subsequent jury charge conference, the following exchange occurred:

District Court: Would you like to take up the front pay
issue, then?

The City‟s Counsel: The concern I believe that the city has at
this point in time is based upon the proof
in this case as to whether there will be
potential liability from the statements
that Officer Hoback has made to [his VA
counselor]. As long as those are part of a
medical record and are not releasable,
that would be nice. The problem at this
point is, they are now, under oath, part of
this court record in this case.

District Court: If there is a lawsuit, though, how could
you not release them?

The City‟s Counsel: Well, we, I believe, would have to
release that information if there were a
lawsuit and someone was requesting that
information discovery-wise.

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 District Court: So it‟s not uncommon for officers to be
involved in lawsuits alleging excessive
force, even if they‟re only tangentially
involved.

The City‟s Counsel: No, sir. And that information could
come in in virtually any case. So at this
point I don‟t believe it would be
appropriate to allow him to come back.
So maybe it would be appropriate to
consider front pay.

District Court: Very well. The Court will give the
instruction on front pay, then. Is there
any objection to that?

Officer Hoback‟s Counsel:5 No, Your Honor.

(Emphasis added.)

Officer Hoback argues to this Court that he was “forced” by the City‟s assertions
to the District Court to agree to the jury charge of front pay rather than reinstatement. To
the contrary, upon our thorough review of the record, we determine that Officer Hoback,
through his counsel in the federal action, willfully and consciously elected the remedy of
front pay. He submitted the suggested jury instruction of front pay to the federal court
and did not submit a suggested jury instruction for reinstatement. During the jury charge
conference, he did not object to the District Court‟s decision to provide an instruction on
front pay. Moreover, we note that Officer Hoback did not raise an issue regarding the
front-pay jury charge on appeal to the Sixth Circuit. See Hoback III, 550 Fed. Appx. 257;
cf. Hoback II, 2012 WL 3834828 at *14 (denying the City‟s post-trial motions involving
allegedly excessive damage awards and noting that “[t]he City does not refute the Court‟s
determination [that] reinstatement, the preferred remedy in termination cases, was
inappropriate in this case nor does it refute the Court‟s decision to submit the issue of
front pay to the jury.”).

Officer Hoback does not dispute the City‟s claim that it has paid to him the entire
$300,000 designated by the District Court‟s judgment as front-pay damages. We note
also that the trial court entered an order on July 11, 2014, upon Officer Hoback‟s earlier
motion, directing that the $200,000 previously deposited by the City in the court‟s
5
In the federal action, Officer Hoback was represented by counsel different from the counsel now
representing him on appeal in this action.
18
registry as partial payment of the front-pay judgment be released to Officer Hoback.
Officer Hoback asserts on appeal that “[i]f reinstated, any front pay he received in the
district court judgment by the jury that he has not now earned as back pay since the
setting of that amount, he is willing to return to the City of Chattanooga.” Assuming,
arguendo, that such a refund were possible, if ordered by this Court, it would defeat the
purpose of the District Court‟s award of front pay and grant double redress to Officer
Hoback for the interim between that award and this decision. We conclude that the
remedy of reinstatement is precluded in this action by Officer Hoback‟s election of front
pay in his federal case and by the previous judgment granting front pay entered by the
District Court, affirmed on appeal by the Sixth Circuit, and paid to Officer Hoback by the
City.

V. Remaining Issues

In this action, Officer Hoback seeks reversal of the City Council‟s affirmation,
pursuant to Tennessee Code Annotated § 4-5-322(h), of his employment termination with
the requested remedy of reinstatement to his position as an officer with the CPD. Having
determined that the remedy of reinstatement is precluded by the District Court‟s prior
judgment granting to Officer Hoback a front-pay award, we further determine the
remaining issues raised by Officer Hoback to be pretermitted as moot. We therefore
affirm the trial court‟s judgment dismissing Officer Hoback‟s reinstatement claim on this
different, preclusive ground. See Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn.
1986) (“Suffice it to say that this Court will affirm a decree correct in result, but rendered
upon different, incomplete, or erroneous grounds.”). In reaching this decision, we
emphasize that our analysis pertains only to Officer Hoback‟s election of the remedy of
front pay previously awarded by the District Court and affirmed by the Sixth Circuit. We
make no determination regarding the merits of the City Council‟s decision to affirm
Officer Hoback‟s employment termination.

VI. Conclusion

For the reasons stated above, we affirm the judgment of the trial court dismissing
Officer Hoback‟s reinstatement claim. The costs on appeal are assessed against the
appellant, Mickel G. Hoback. This case is remanded to the trial court, pursuant to
applicable law, for enforcement of the trial court‟s judgment and collection of costs
assessed below.

_________________________________
THOMAS R. FRIERSON, II, JUDGE
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