Tennessee Department of Correction v. David Pressley , 528 S.W.3d 506 ( 2017 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 8, 2017 Session
TENNESSEE DEPARTMENT OF CORRECTION v. DAVID PRESSLEY
Appeal by Permission from the Court of Appeals
Chancery Court for Davidson County
No. 141380I Claudia C. Bonnyman, Chancellor
___________________________________
No. M2015-00902-SC-R11-CV – Filed September 14, 2017
___________________________________
We granted this appeal to determine whether a “preferred service” state employee has a
protected property interest in his or her employment and whether due process or specific
statutory language requires the State to bear the ultimate burden of proof in a post-
termination administrative appeal under section 8-30-318 of the Tennessee Excellence,
Accountability, and Management Act of 2012, Tenn. Code Ann. §§ 8-30-101 through -
407. The Respondent, David Pressley, was employed by the Petitioner, Tennessee
Department of Correction, as a correctional officer at the Morgan County Correctional
Complex. Mr. Pressley was dismissed from his employment and challenged his
termination pursuant to the TEAM Act’s appeals process. Mr. Pressley’s termination was
upheld by the Commissioner of TDOC at Step I of the TEAM Act’s appeals process and
at Step II by the Commissioner of Human Resources. At Step III of the appeals process,
the Board of Appeals reinstated Mr. Pressley and reduced his discipline to a 14-day
suspension. The Board of Appeals also determined that the State bore the ultimate
burden of proof in the Step III appeal. The State appealed to chancery court, challenging
the assignment of the burden of proof. The chancery court reversed the Board of
Appeals’ decision on the burden of proof issue and remanded the matter to the Board of
Appeals. Mr. Pressley appealed to the Court of Appeals which, in turn, reversed the
chancery court’s decision and determined that “preferred service” state employees have a
protected property interest in their employment and that the State bore the ultimate
burden of proof in the Step III appeal. We reverse the Court of Appeals’ judgment and
remand this matter to the Board of Appeals for further proceedings consistent with this
Opinion.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Remanded to the Board of Appeals
JEFFREY S. BIVINS, C.J., delivered the opinion of the court, in which CORNELIA A.
CLARK, SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Ann M. Mikkelsen, Assistant Attorney General; and Joseph F. Whalen,
Associate Solicitor General, for the appellant, Tennessee Department of Correction.
Frank J. Scanlon and Samuel P. Helmbrecht, Nashville, Tennessee, for the appellee,
David Pressley.
OPINION
Factual and Procedural Background
The Respondent, David Pressley (“Mr. Pressley”), was employed by the
Petitioner, Tennessee Department of Correction (“TDOC” or “the State”), beginning in
November of 2011 as a correctional officer at the Morgan County Correctional Complex
(“MCCX” or “the prison”). On January 8, 2014, Mr. Pressley received a letter from the
prison warden (the “Warden”) notifying him that he had been dismissed from his
employment. The letter alleged that on the night of January 6, 2014, and the morning of
January 7, 2014, video surveillance cameras showed that Mr. Pressley allowed inmates to
pilfer large amounts of food from the prison kitchen, prepare some of the food, and leave
the kitchen area with large quantities of food while he was supervising the cleaning of the
prison kitchen. The letter also alleged that Mr. Pressley wrongfully accessed a secure
food storage area secured by a tamper seal. The letter charged that this alleged conduct
violated “MCCX Service/Dining Room-Security Post Orders” (“Post Orders”) and
Department of Human Resources Rules pertaining to “incompetency” and “negligence”
in the performance of duties and conduct unbecoming an employee in state service. The
letter stated that Mr. Pressley’s employment would be terminated effective January 17,
2014, and that, as a preferred service employee, Mr. Pressley had the right to file a
written complaint challenging his dismissal.
Pursuant to the Tennessee Excellence, Accountability, and Management Act of
2012 (the “TEAM Act” or the “Act”), discussed in detail below, Mr. Pressley initiated a
Step I review challenging his dismissal by filing a complaint with the Commissioner of
TDOC. The complaint specifically alleged that “[t]he department did not have cause to
take such action.” By letter dated February 3, 2014, the Commissioner of TDOC,
Derrick D. Schofield, upheld Mr. Pressley’s termination. On or about February 12, 2014,
Mr. Pressley filed a request for a Step II review. On March 10, 2014, the Commissioner
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of Human Resources (the “Commissioner”), Rebecca R. Hunter, upheld Mr. Pressley’s
dismissal at his Step II review, finding no “violation by the Department [of Correction]
due to [Mr. Pressley’s] failure to demonstrate how the Department [of Correction]
violated [Tennessee Code Annotated Section 8-30-316].”
Following his failure to obtain relief at his Step II review, Mr. Pressley initiated a
Step III review by filing an appeal with the Board of Appeals (“the Board”). In the
appeal, he argued that there was no cause for his termination and that his termination
represented too severe a punishment for his alleged conduct. In an order dated March 21,
2014, the chief administrative law judge preliminarily assigned the burden of proof to
TDOC pursuant to Tennessee Rules & Regulations 1360-04-01-.02(3) & (7) (2004) of
the Uniform Rules of Procedure for Hearing Contested Cases before Administrative
Agencies. The order indicated that if either party wished to contest the determination
regarding the burden of proof, it could do so by filing a written brief and memorandum.
TDOC filed a written brief and memorandum, arguing that the ultimate burden of proof
should be placed on Mr. Pressley because he was the moving party. Mr. Pressley
responded in opposition, and the chief administrative law judge ruled at a pre-hearing
conference that the issue of burden of proof would be decided by the administrative law
judge (“ALJ”) who was ultimately assigned to hear the case.
Mr. Pressley’s appeal proceeded to a contested hearing on June 23 and August 8,
2014, before the Board. During the hearing, the ALJ presiding over the case upheld the
prior ALJ’s order assigning the burden of proof to TDOC. After the conclusion of the
hearing, the Board issued a final ruling containing detailed findings of fact and
conclusions of law. In summary, the Board found that TDOC had failed to carry its
burden of proof on all but one alleged act of misconduct. Specifically, the Board found
that Mr. Pressley had obtained advance permission from his supervisor to take food from
the secure storage area in order to prepare meals for the third shift that evening.
Additionally, the Board found that there was not sufficient evidence that Mr. Pressley
broke tamper seals to enter the secure food storage area to support his dismissal.
The Board likewise determined that two correctional officers assigned to search
the inmates upon the inmates’ return to the housing unit found no contraband, food or
otherwise, on the inmates Mr. Pressley had been supervising in the kitchen. Accordingly,
the Board concluded that TDOC had failed to meet its burden to demonstrate Mr.
Pressley had committed a violation of the Post Orders or Tennessee Department of
Human Resources Rule 1120.10-.03(2) concerning incompetence. The Board, however,
found that TDOC carried its burden of proof with regard to Tennessee Department of
Human Resources Rule 1120.10-.03(3) “negligence in the performance of duty,” by
establishing that Mr. Pressley had failed to file a written report after going into the secure
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food storage area. Consequently, the Board issued Mr. Pressley a fourteen-day
suspension without pay. The Board denied Mr. Pressley’s request for attorney’s fees.
Both the State and Mr. Pressley filed petitions for judicial review in the chancery
court. For its part, the State argued that the ALJ improperly placed the burden of proof
on TDOC in Mr. Pressley’s Step III appeal, while Mr. Pressley countered that any
punishment was not supported by the evidence adduced before the Board. The two cases
were consolidated, and the chancery court ultimately entered an order vacating the Board
of Appeals’ decision, determining that the ALJ advising the Board of Appeals made an
erroneous assignment of the burden of proof during Mr. Pressley’s Step III appeal.
Accordingly, the chancery court vacated the Board’s decision and remanded the case to
the Board to apply the burden of proof in the appropriate manner.
Mr. Pressley appealed the chancery court decision to the Tennessee Court of
Appeals. The Court of Appeals reversed the chancery court’s decision on the allocation
of the burden of proof and determined that the State, rather than Mr. Pressley, had the
ultimate burden to show cause to sustain the dismissal or suspension of an employee in a
Step III appeal pursuant to Tennessee Code Annotated section 8-30-318. Tenn. Dep’t of
Corr. v. Pressley, M2016-00902-COA-R3-CV, 2016 WL 1559138, at *14 (Tenn. Ct.
App. Apr. 14, 2016), appeal granted (Sept. 23, 2016). The Court of Appeals reached this
decision based upon its conclusion that preferred service employees under the TEAM Act
have a protected property interest in their continued employment. Id. at *12. The Court
of Appeals reasoned that, if a preferred service employee has a protected property interest
in continued employment, the preferred service employee possesses due process rights
that must be protected. Id. at *14. The Court of Appeals then ultimately concluded that
the due process protections enjoyed by a preferred service employee required that the
State bear the burden of proof at Step III of the TEAM Act’s appeals process. 1 Id. Thus,
the Court of Appeals held that the Board did not err in requiring the State to prove that
there was sufficient evidence for Mr. Pressley’s termination and sufficient evidence that
the Board’s punishment was appropriate. Id. at *15.
As to Mr. Pressley’s appeal, the Court of Appeals also concluded that the Board
erred in imposing any discipline on Mr. Pressley because of a lack of substantial and
material evidence in the record to support the Board’s conclusion that Mr. Pressley
committed negligence in failing to file an incident report on the night of January 6, 2014.
Id. at *17. Finally, the Court of Appeals determined that Mr. Pressley was entitled to
1
The Court of Appeals also held that, like a teacher under the Teacher Tenure Act, see Cooper v.
Williamson Cnty. Bd. of Educ., 746 S.W.2d 176, 182 (Tenn. 1987); Saunders v. Anderson, 746 S.W.2d
185, 190 (Tenn. 1987), a preferred service employee first had a de minimis burden to establish a prima
facie violation of law before the burden of proof shifted to the State. Pressley, 2016 WL 1559138 at *9-
10. That holding is not relevant to our decision in this case.
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attorney’s fees as the “successfully appealing employee” before the Board of Appeals.
Id. at *19. Accordingly, the Court of Appeals reversed the chancery court’s judgment in
all respects and remanded the case to the chancery court for a determination of Mr.
Pressley’s reasonable attorney’s fees pursuant to Tennessee Code Annotated section 8-
30-318(k). Id.
We granted the State permission to appeal to address the question of whether a
preferred service employee has a protected property interest in his or her employment
under the TEAM Act. If we answer that question in the negative, we then address the
issue of whether the language of the TEAM Act itself requires that the State bear the
ultimate burden of proof in a post-termination administrative appeal under the TEAM
Act. For the reasons stated below, we hold that Mr. Pressley and other similarly situated
preferred service employees do not possess a protected property interest in their
employment with the State. We also conclude that Mr. Pressley bore the ultimate burden
of proof at his Step III hearing. Accordingly, we reverse the judgment of the Court of
Appeals and remand this case to the Board for further proceedings consistent with this
Opinion.
DISCUSSION
Standard of Review
Under the TEAM Act, Board of Appeals’ decisions are subject to judicial review
in accordance with the Uniform Administrative Procedures Act (“UAPA”). Tenn. Code
Ann. § 8-30-318(j) (2016). Therefore, this Court, as well as the trial and intermediate
appellate courts, reviews the Board’s decision under the narrowly defined standard of
review contained in the UAPA, Tenn. Code Ann. § 4-5-322(h) (2015 & Supp. 2016),
rather than under the broad standard of review used in other civil appeals, Davis v.
Shelby Cnty. Sheriff’s Dep’t., 278 S.W.3d 256, 263-64 (Tenn. 2009). Accordingly,
pursuant to Tennessee Code Annotated section 4-5-322:
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
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(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.
Tenn. Code Ann. § 4-5-322(h). Applying this standard of review, a reviewing court may
reverse the Board’s decision only if one or more of the five enumerated grounds for
reversal are present. Id.; Davis, 278 S.W.3d at 264.
This case also involves the application and interpretation of the TEAM Act.
Issues of statutory interpretation and the application of a statute to the facts of a case are
determinations involving questions of law and are reviewed under a de novo standard
with no presumption of correctness afforded to either the trial court or intermediate court
of appeals. State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008). We independently
construe the relevant provisions of the TEAM Act without deference to the
interpretations made by TDOC, the chancery court, or the Court of Appeals. See In re
Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015).
“When engaging in statutory interpretation, ‘well-defined precepts apply.’” State
v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016) (quoting State v. McNack, 356 S.W.3d
906, 908 (Tenn. 2011)). “The most basic principle of statutory construction is to
ascertain and give effect to the legislative intent without unduly restricting or expanding a
statute’s coverage beyond its intended scope.” Id. (citing Owens v. State, 908 S.W.2d
923, 926 (Tenn. 1995)). The text of the statute is of primary importance. Mills v.
Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012). When a statute is ambiguous, we
may reference the broader statutory scheme, the history of the legislation, or other
sources. Sherman, 266 S.W.3d at 401 (citing Parks v. Tenn. Mun. League Risk Mgmt.
Pool, 974 S.W.2d 677, 679 (Tenn. 1998)). But when a statute is clear, we simply apply
the plain meaning without complicating the task. Id. (citing Eastman Chem. Co. v.
Johnson, 151 S.W.3d 503, 507 (Tenn. 2004)).
It is the duty of the Court to reconcile inconsistent or
repugnant provisions; to place a construction thereon which
will not be prejudicial to the public interest; to construe a
statute so that no part will be inoperative, superfluous, void or
insignificant, and the one section will not destroy another;
and further to give effect to every word, phrase, clause and
sentence of the act in order to carry out the legislative intent.
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Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn. 1975) (internal citations
omitted).
Analysis
The primary issue we must resolve is which party bears the ultimate burden of
proof in this case. Initially, in our efforts to decide this primary issue, we address the
threshold issue of whether a preferred service state employee has a protected property
interest in his or her continued employment under the TEAM Act. If such an interest
exists, we then turn to the question of what process is due to protect that interest and
whether a deprivation has occurred. Rowe v. Bd. of Educ. of City of Chattanooga, 938
S.W.2d 351, 354 (Tenn. 1996) (citing Bd. of Regents of State Coll. v. Roth, 408 U.S.
564, 577 (1972)). If no such interest exists, we then turn to the final step of our analysis
which is to determine whether the statutory language of the TEAM Act, along with its
relevant regulations, requires the State or Mr. Pressley to bear the ultimate burden of
proof in this action.
I. Protected Property Interest
The Fourteenth Amendment of the United States Constitution provides that no
state may “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. Amend. XIV, § 1. Article I, section 8, of the Tennessee Constitution,
Tennessee’s “law of the land clause,” provides identical due process protections. Bailey
v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 230 (Tenn. 2010); Lynch v. City of
Jellico, 205 S.W.3d 384, 391 (Tenn. 2006) (recognizing that Tennessee’s “law of the land
clause” is “synonymous with the due process provisions of the federal constitution”).
The Fourteenth Amendment’s procedural protection of property safeguards the security
of interests that a person has already acquired in specific benefits. Rowe, 938 S.W.2d at
354. Property interests protected by the Fourteenth Amendment are not created by the
Constitution, but rather they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source of state law. See Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Roth, 408 U.S. at 577; Bailey, 303
S.W.3d at 230; Freeze v. City of Decherd, Tenn., 753 F.3d 661, 665 (6th Cir. 2014).
To be entitled to procedural due process protection, a property interest must be
more than a “unilateral expectation” or an “abstract need or desire.” It must be a
“legitimate claim of entitlement” to a specific benefit. Rowe, 938 S.W.2d at 354 (citing
Roth, 408 U.S. at 577). The hallmark of property, the United States Supreme Court has
emphasized, is an individual entitlement grounded in state law which cannot be removed
except “for cause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982). Once
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that characteristic is found, the types of interests protected as “property” are varied and,
as often as not, intangible, relating “to the whole domain of social and economic fact.”
Id.
Thus, our determination of whether Mr. Pressley and other similarly situated
preferred service employees possess a constitutionally protected property interest to
continued employment is governed by the TEAM Act, its regulations, and other relevant
state law. See Roth, 408 U.S. at 577; Bailey, 303 S.W.3d at 230. Accordingly, we turn
to the text of the TEAM Act to determine whether the Act creates such an interest.
The Tennessee General Assembly enacted the TEAM Act in 2012, replacing the
now repealed Civil Service Act and reforming the State’s personnel system. See Tenn.
Code Ann. § 8-30-331 (2011), repealed by the TEAM Act, 2012 Tenn. Pub. Acts, ch.
800, § 41, eff. Oct. 1, 2012. The TEAM Act applies to all personnel in the “state
service,” which includes “all officers and positions of trust or employment in the service
of state government in the executive branch and all boards, commissions and agencies of
state government” with some express exceptions that have no bearing on this case.2 See
Tenn. Code Ann. § 8-30-102 (2016). The General Assembly’s express purpose in
enacting the TEAM Act was to:
[E]stablish in the state a system of personnel administration
that will attract, select, retain and promote the best employees
based on merit and equal opportunity, and free from coercive
political influences. Because the citizens of the state deserve
services from the best employees, the goal of the state
personnel system is to provide technically competent
employees to render impartial services to the public at all
times and to render such services in an ethical and honorable
manner. Specifically, the intent of the general assembly is to
further this purpose by allowing agencies greater flexibility in
personnel management in order to enhance the overall
effectiveness and efficiency of state government. The general
assembly further intends that state government operate within
a framework of consistent best practices across all state
agencies and entities and that the state's most valued resource,
its employees, be managed in a manner designed to enhance
2
The TEAM Act does not apply to employment in the legislative or judicial branches,
constitutional officers, the University of Tennessee or Board of Regents systems, the Tennessee Higher
Education Commission, the Tennessee Advisory Commission on Intergovernmental Relations, or the
Tennessee Housing Development Agency. See Tenn. Code Ann. § 8-30-102(b)(1)-(13).
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work force productivity and demonstrate sound business
practices.
Tenn Code Ann. § 8-30-101 (2016).
The TEAM Act reformed Tennessee’s state employment personnel system by
establishing two separate and distinct employment categories under the umbrella of “state
service”: “executive service” employees and “preferred service” employees. Tenn. Code
Ann. § 8-30-201 (2016) (“State service is divided into the preferred service and executive
service.”). Under the TEAM Act, “[a]n employee in the executive service is an employee
at will and serves at the pleasure of the employee’s appointing authority,” Tenn. Code
Ann. § 8-30-202(b) (2016), meaning either the employer or the employee may terminate
the employment relationship at any time with or without cause. See Moore-Pennoyer v.
State, 515 S.W.3d 271, 278 (Tenn. 2017); Yardley v. Hosp. Housekeeping Sys., LLC,
470 S.W.3d 800, 804 (Tenn. 2015). “Executive service” employees include those state
employees who are appointed by the governor; deputy and assistant commissioners (and
their employees who serve in a confidential capacity); wardens of correctional facilities
and chief officers of mental health institutes; heads of divisions of major units within an
agency or regional directors for a state agency who develop or implement policy; highest-
ranking agency employees who deal with public information and legislative affairs,
fiscal, budget, and audit matters, security or internal affairs, information technology
systems, and human resources; and licensed physicians and attorneys. Tenn. Code Ann.
§ 8-30-202(a).
The TEAM Act specifies that all other full-time positions in the “state service” are
classified under the Act’s other employment category, the “preferred service.” Tenn.
Code Ann. § 8-30-202(c). Before a state service employee can become a full-fledged
member of the preferred service, he or she must successfully complete a probationary
period of employment.3 Tenn. Code Ann. § 8-30-202(d). “An employee in the preferred
service who has successfully completed a probationary period becomes a preferred
3
The TEAM Act specifies that the probationary period commences immediately upon the
employee’s appointment and continues for a period of time, not less than one (1) year, as established by
the commissioner of human resources appointed under section 8-30-104. Tenn Code Ann. § 8-30-308(a).
At any time during the employee’s probationary period the appointing authority may
remove the employee if, in the opinion of the appointing authority, the employee's
performance or conduct during the probationary period indicates that such employee is
unable or unwilling to satisfactorily perform or is not satisfactorily performing the
employee’s duties, or that the employee's habits, dependability, or conduct do not merit
continuance in the service.
Id.
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service employee and may be dismissed, demoted, or suspended for cause.” Tenn. Code
Ann. § 8-30-316(a) (2016) (emphasis supplied). Section 8-30-316(b) also provides that a
preferred service employee “may” be dismissed “when the authority determines that the
good of the service will be served thereby.” Tenn. Code Ann. § 8-30-316(b) (emphasis
supplied). “Whenever an employee is dismissed ‘for the good of the service,’ the notice
of termination must outline the reasons for dismissal.” Tenn. Code Ann. § 8-30-316(b).
Regardless of whether dismissed for cause or dismissed for the good of the service, a
preferred service employee’s dismissal takes effect “immediately after the appointing
authority gives notice to such employee and files a written statement with the
commissioner.” Tenn. Code Ann. § 8-30-316(a) (emphasis supplied). Under the TEAM
Act, preferred service employees aggrieved by a disciplinary decision and who have
successfully completed their required probationary period are entitled to file a complaint
concerning the application of a law, rule, or policy to their dismissal, demotion, or
suspension.4 Tenn. Code Ann. § 8-30-316(f). Executive service employees, by contrast,
do not have standing to file a complaint under the statute. Tenn. Code Ann. § 8-30-
318(c).
The Court of Appeals reviewed the TEAM Act and concluded that “Mr. Pressley
and other similarly situated employees have a ‘legitimate claim of entitlement’ to
continued employment absent cause for their dismissal” because “TDOC was only
entitled to dismiss, demote, or suspend Mr. Pressley ‘for cause.’” Pressley, 2016 WL
1559138 at *13 (quoting Martin v. Sizemore, 78 S.W.3d 249, 262 (Tenn. Ct. App.
2001)). Thus, according to the Court of Appeals, “the fact that Mr. Pressley could only
be dismissed for cause ‘plainly supports the conclusion’ that [Mr. Pressley] and other
similarly situated employees retain a protected property interest in continued
employment.” Id. (quoting Loudermill, 470 U.S. at 539).
Based upon our review of the entire TEAM Act, we conclude that the Court of
Appeals’ determination that Mr. Pressley and other similarly situated employees possess
a protected property interest in continued employment because preferred service
employees can only be dismissed “for cause” is erroneous. The language of the statute is
clear. Section 8-30-316 of the TEAM Act unambiguously sets out the two separate
grounds under which a preferred service employee may be dismissed—dismissal “for
cause” pursuant to subsection 316(a) and dismissal for the “good of the service” pursuant
4
The TEAM Act’s revised appeal procedure was intended to significantly streamline the time and
scope of the state employment grievance/appeal procedure. For those grievances concerning dismissals,
demotions, or suspensions of a duration of less than three (3) days, the TEAM Act’s right to appeal is
limited to an appeal to the commissioner of human resources under Step II of the state service appeal
procedure discussed infra. See Tenn. Code Ann. § 8-30-318(b), (h)(1)(B). An employee shall not be
entitled to appeal a suspension of less than three (3) days to the board of appeals. Tenn. Code Ann. § 8-
30-318(b).
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to subsection 316(b). Tenn. Code Ann. § 8-30-316. While the Court of Appeals rightly
noted that “[t]he hallmark of property . . . is an individual entitlement grounded in state
law, which cannot be removed except ‘for cause,’” see Logan, 455 U.S. at 430, it is not
the case that Mr. Pressley and other similarly situated “preferred service” employees can
be dismissed only “for cause.” The TEAM Act gives TDOC the authority to “dismiss
any employee” if TDOC determines that the good of the service will be served by the
dismissal, Tenn. Code Ann. § 8-30-316(b) (emphasis supplied). “Any employee”
includes “preferred service” employees. Thus, because Mr. Pressley and other similarly
situated preferred service employees may be dismissed for the good of the service, as
opposed to being dismissed for cause, the isolated “for cause” language relied upon by
the Court of Appeals is insufficient to support the determination that the TEAM Act
creates a property interest.
Moreover, and perhaps more significantly, even if we assume that the statutory
language of the TEAM Act is not clear on its face, a thorough analysis of all provisions
of the TEAM Act in light of the prior statutory scheme that the TEAM Act replaced
supports our conclusion. When necessary to resolve a statutory ambiguity or conflict,
courts may consider matters beyond the statutory text, including public policy, historical
facts relevant to the enactment of the statute, the background and purpose of the statute,
and the entire statutory scheme. Mills, 360 S.W.3d at 368 (citing Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 527-28 (Tenn. 2010)).
A plain reading of the TEAM Act makes clear the Act does not expressly confer a
property interest in continued employment on preferred service employees. By contrast,
the Civil Service Act that preceded the TEAM Act contained such an express provision.
The Civil Service Act divided “state service” into “executive” and “career” service
positions similar to the TEAM Act’s “executive” and “preferred” service classifications.
See Tenn. Code Ann. § 8-30-208 (repealed 2012). Under the old Civil Service Act, all
employees in the career service were required to undergo a probationary period of
employment similar to the current scheme for preferred service employees.5 See id. § 8-
5
Every person appointed to a position in the career service, after certification of such
person’s name from a promotion list or an employment list, shall be subject to a
probationary period of employment. The probationary period shall commence
immediately upon appointment and shall continue for such time, not less than six (6)
months, as shall be established by the commissioner. At any time during the employee’s
probationary period, after the first month thereof, the appointing authority may remove
the employee if, in the opinion of the appointing authority, the employee’s work during
the probationary period indicates that such employee is unable or unwilling to perform
duties satisfactorily, or that the employee’s habits and dependability do not merit
continuance in the service. Upon such removal, the appointing authority shall forthwith
report to the commissioner and to the employee removed such action and reason therefor.
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30-312 (repealed 2012). However, unlike under the TEAM Act, the old statutory scheme
expressly vested an employee who successfully completed their probationary
employment period with a property interest in their position with attendant due process
protections. See id. § 8-30-331(a) (repealed 2012) (“Employees who have successfully
completed their probationary period have a ‘property right’ to their positions.”). Once
that property right vested, the statute provided that, “no suspension, demotion, dismissal
or any other action which deprive[d] a regular employee of such employee’s ‘property
right’” could become effective until the employee received the statute’s minimum due
process guarantees. See Tenn. Code Ann. § 8-30-331(a) (repealed 2012). In contrast, the
TEAM Act provides explicitly that “the dismissal of a preferred service employee [takes]
effect immediately after the appointing authority gives notice to such employee and files
a written statement with the commissioner.” See Tenn. Code Ann. § 8-30-316(a).
Nevertheless, Mr. Pressley argues that the TEAM Act effectively only provides
for “for cause” terminations of preferred service employees because a termination for the
“good of the service” is a “for cause” termination by another name. Mr. Pressley reaches
this conclusion by seizing on language in section 316(b), which provides, “[a]n
appointing authority may dismiss any employee when the authority determines that the
good of the service will be served thereby. Whenever an employee is dismissed ‘for the
good of the service,’ the notice of termination must outline the reasons for dismissal.”
Tenn. Code Ann. § 8-30-316(b) (emphasis supplied). Mr. Pressley contends that section
316(b)’s legislative commandment that a preferred service employee’s notice of
termination must outline the reasons for dismissal transforms section 316(b) into the
same type of termination as section 316(a)’s “for cause” dismissal provision. Mr.
Pressley interprets this language to mean TDOC could not dismiss him at its pleasure or
will, and that such a restriction runs counter to Tennessee’s definition of at-will
employment.6
Rules of statutory construction require us to give meaning to all words of the
statute. Tidwell, 522 S.W.2d at 676-77. Were we to construe the good of the service
provision to have the same scope and authorization as the for cause provision, we would
be ignoring the plain, unequivocal distinction made by the statute and render the good of
No more than three (3) employees shall be removed successively from the same position
during their probationary periods without the approval of the commissioner.
Tenn. Code Ann. 8-30-312 (repealed 2012).
6
Tennessee law has long recognized “the employment-at-will doctrine as the ‘fundamental
principle controlling the relationship between employers and employees.’” Moore-Pennoyer, 515 S.W.3d
at 278 (citing Yardley, 470 S.W.3d at 804). This doctrine allows either the employer or the employee to
terminate the employment relationship at any time, with or without cause. Id.
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the service provision mere surplusage. This we cannot do. See Bailey, 303 S.W.3d at
228 (“This Court has long recognized its duty to construe a statute so that no part will be
inoperative, superfluous, void or insignificant.”) (citing Tidwell, 522 S.W.2d at 676-77).
We are further guided in our decision by the fact that the former Civil Service Act
used, as its chief dismissal mechanism, section 326(a)’s good of the service provision but
did not include a for cause termination provision for then-career service employees. In
sharp contrast, the TEAM Act includes both a provision authorizing for cause
terminations for preferred service employees and a provision separately authorizing
terminations for the good of the service for any employee. We do not believe the
legislature would have included a new for cause termination provision while maintaining
section 326(a)’s good of the service provision without intending for the newly created for
cause termination provision to do something separate and distinct from the already
existing good of the service provision. To adopt Mr. Pressley’s argument that a dismissal
for the good of the service is the same as a dismissal for cause would violate long-
standing canons of statutory construction. The General Assembly clearly chose to allow
dismissals under two separate provisions. Therefore, we decline to adopt Mr. Pressley’s
argument on this issue.
Additionally, Mr. Pressley’s contention that the TEAM Act only permits for cause
terminations of preferred service employees misapprehends the scope and function of the
TEAM Act’s good of the service provision. While most, if not all, terminations for cause
also could be terminations for the good of the service, not all terminations for the good of
the service will be terminations for cause. The TEAM Act’s good of the service
provision is a catch-all provision that permits an appointing authority to terminate any
employee whenever it determines, in its discretion, that the termination will serve the
good of the service of the appointing authority. Conversely, the TEAM Act’s for cause
provision applies solely to terminations of “preferred service employee[s]” based on a
job-related ground. Compare Tenn. Code Ann. § 8-30-316(b) with Tenn. Code Ann. § 8-
30-316(a) (emphasis supplied). Accordingly, we reject Mr. Pressley’s argument and
conclude that the TEAM Act permits two separate and distinct grounds for the dismissal
of a preferred service employee.
Likewise, we are unconvinced by Mr. Pressley’s argument that the TEAM Act’s
implementing regulations establish that preferred service employees have a
constitutionally protected property interest. Mr. Pressley hinges this argument
specifically on Tennessee Comprehensive Rules and Regulations 1120-02-.11, which
provides:
(1) Regular Appointment. A regular appointment is an
appointment to either a preferred, non-preferred or executive
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service position for an indeterminate period of time. A
regular appointment is expected to continue contingent upon
satisfactory performance and behavior by the employee and
upon continued funding, classification and utilization of the
position by the State. In the executive service, a regular
appointment is at-will and continues at the pleasure of the
Appointing Authority.
Tenn. Comp. R. & Regs. 1120-02-.11(1) (2017). Mr. Pressley argues that this rule, along
with others,7 is evidence that he and other similarly situated preferred service employees
have a legitimate expectation of continued employment with the State because preferred
service employees should expect their employment to “continue contingent upon
satisfactory performance and behavior,” whereas executive service employees do not
have the same expectation. Yet, this argument ignores that the regulation also provides
that “[a] regular appointment is an appointment to either a preferred, non-preferred or
executive service position for an indeterminate period of time.” See id. The regulation
makes clear that both preferred service and executive service employees are classified as
regular appointments and both classes of employees should expect their appointments to
continue based on satisfactory performance and behavior by the employee and upon
continued funding, classification, and utilization of the position by the State. See id.
Simply put, the TEAM Act’s implementing regulations do not support Mr. Pressley’s
argument that preferred service employees have a unique expectation of continued
employment that executive service, at-will employees do not.
For all of these reasons, we hold that Mr. Pressley and other similarly situated
preferred service employees do not possess a property interest in their continued
employment with the State of Tennessee.
The Court of Appeals’ holding on the burden of proof was premised on its
determination that Mr. Pressley and other similarly situated preferred service employees
had a protected property interest in their continued employment. For that reason, it did
not construe the TEAM Act’s relevant provisions regarding the burden of proof. Thus,
even though we have determined that preferred service employees have no such property
interest, we still must determine which party ultimately bears the burden of proof in a
post-termination Step III administrative appeal under the statutory provisions of the
TEAM Act. We turn now to that issue.
7
See Tenn. Comp. R. & Regs. 1120-02-.15(1), (6).
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II. UAPA Burden of Proof
There is no dispute that Mr. Pressley was a preferred service employee who had
successfully completed his probationary period of employment. Accordingly, Mr.
Pressley was entitled to the procedural protections attendant to his status as a preferred
service employee, specifically, the TEAM Act’s appeals process. See Tenn. Code Ann.
§ 8-30-318. Under the TEAM Act, a preferred service employee “who has successfully
completed [his or her] required probationary period, may file a complaint concerning the
application of a law, rule, or policy to [his or her] dismissal, demotion, or suspension . . .
.”8 See Tenn. Code Ann. § 8-30-318(b). “A complaint filed under [Tenn. Code Ann. §
8-30-318] must identify the law, rule, or policy that was allegedly violated.” Tenn. Code
Ann. § 8-30-318(d).
The TEAM Act’s appeal procedure is a three-step process. The TEAM Act sets
forth Step I, in relevant part, as follows:
(1)(A) Step I: The complainant shall reduce the complaint to
writing and file the complaint with the complainant’s
appointing authority. The appropriate appointing authority or
designee shall conduct any investigation considered necessary,
meet with the complainant in person, and issue a decision, in
writing, not later than fifteen (15) days after the date the
appointing authority receives the complaint. . . . If the
appointing authority does not issue a decision fifteen (15) days
after the appointing authority receives the complaint, the
complainant may appeal to the commissioner by filing the
complaint in accordance with Step II.
The TEAM Act, in pertinent part, specifies the “Step II” appeal procedure as follows:
(B)(i) Step II: If the appointing authority does not find in
favor of the complainant, the complainant may appeal to the
8
(b) An employee in the preferred service system, who has successfully completed the
required probationary period, may file a complaint concerning the application of a law
rule, or policy to the dismissal, demotion or suspension of the employee. If the term of
the suspension is less than three (3) days, the right to appeal is limited to an appeal to the
commissioner under Step II, codified as subdivision (h)(1)(B). An employee shall not be
entitled to appeal a suspension of less than three (3) days to the board of appeals.
Tenn. Code Ann. § 8-30-318(b). By contrast, “[a]n executive service employee . . . does not have
standing to file a complaint under this section.” Tenn. Code Ann. § 8-30-318(c).
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commissioner of human resources by filing the complaint not
later than fourteen (14) days after the date of the appointing
authority’s written decision. The commissioner of human
resources shall review the complaint and the appointing
authority's decision, and issue a decision, in writing, not later
than thirty (30) days after the date the complaint was filed
with the commissioner . . . . If the commissioner does not
issue a decision thirty (30) days after the commissioner
receives the complaint, the complainant may appeal to the
board of appeals in accordance with Step III.
(ii) At Step II of the appeal procedure, it is the duty of the
employee to provide written argument to the commissioner
setting out why the employee believes the Step I decision was
in error and ought to be overturned, reduced, or amended. An
employee failing to provide such information to the
commissioner shall be considered in default and forfeits the
ability to appeal to Step III.
Tenn. Code Ann. § 8-30-318(h)(1)(B)(i)-(ii). Step II of the appeal procedure is only
available to the complainant if the appointing authority does not rule in his or her favor in
the Step I proceeding. If the parties have not resolved the issue by Step II, either party
may appeal the Commissioner’s decision from the Step II appeal to the Board of Appeals
in a Step III appeal. The TEAM Act provides:
(C) Step III: The complainant or state agency may appeal in
writing to the board of appeals not later than fourteen (14)
days after the date the complainant, or in the case of a state
agency, the state agency receives written notice of the action
taken by the commissioner of human resources. Within ten
(10) days after the receipt of the appeal, the administrative
law judge assigned to assist the board of appeals in the
proceedings related to the appeal shall determine whether all
previous procedural requirements were completed properly
and in a timely manner. If a procedural requirement has not
been met, the appeal shall be dismissed. If the procedural
requirements have been met, the board of appeals shall
conduct proceedings in accordance with the Uniform
Administrative Procedures Act, compiled in title 4, chapter 5,
as modified herein, to determine if the law, rule, or policy
specified in the complaint was violated.
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Tenn. Code Ann. § 8-30-318(h)(1)(C). As the Act sets forth, the Board of Appeals in a
Step III appeal “shall conduct proceedings in accordance with the Uniform
Administrative Procedures Act . . . to determine if the law, rule, or policy specified in the
complaint was violated.” See id.
In Mr. Pressley’s Step III appeal before the Board of Appeals, the ALJ presiding
over the case ruled that TDOC bore the ultimate burden of proof. The ALJ charged the
Board of Appeals as follows:
This third step hearing I would remind you is a de novo
hearing. In other words, the parties are starting over. The
State must prove its case by evidence presented in this
hearing. There’s no presumption of correctness that attaches
to the decision at Step I or Step II below. The State has
disciplined the Complainant by termination. The State has
the burden of proof. The Complainant does not have any
burden to show that he is not guilty of the violations charged.
The State has the burden to prove that (1) the violations
charged are true; (2) that it took appropriate disciplinary
action. These must be shown by a preponderance of the
evidence. . . .
The chancery court disagreed and determined that the Board of Appeals made an
erroneous assignment of the burden of proof. The chancery court reasoned that
“[s]trongly implicit in [Tenn. Code Ann. § 8-30-318’s] description of [section 8-30-
318’s] appeal right, . . . is that the non-prevailing party at the Step II procedure has the
burden of proof at the next level of the process, which is the Board of Appeals.” The
chancery court explained its decision as follows:
Reading [Tennessee Code Annotated section] 8-30-316
together with [Tennessee Code Annotated section] 8-30-318,
there is no adverse employment action and hence no appeal
until the State agency employer has given written notice to
the employee and the Commissioner of Human Resources,
that the disciplinary action is being taken. That is the
triggering event for the employee to file a Step I complaint.
Mr. Pressley here did so, asserting that [] there was no cause
for his dismissal. And because he did not prevail at Step I, he
had the opportunity to, and did move forward to Step II, again
to assert that the Department of Correction had no cause to
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dismiss him. The Step II decision, however, by Rebecca
Hunter, the Commissioner of the Department of Human
Resources, was to uphold the dismissal, on the basis that the
information given to her by the parties for consideration had
indicated culpable wrongdoing by Mr. Pressley. Thus, when
Mr. Pressley appealed that determination to Step III, the
Board of Appeals, it was his burden to go forward at Step III
to show that there was no cause for him to be dismissed. The
Court thus finds that the Board of Appeals did apply an
erroneous burden of proof.
Accordingly, the chancery court held that Mr. Pressley bore the ultimate burden of proof
before the Board of Appeals and remanded the case to the Board of Appeals for a new
hearing consistent with its burden of proof determination.
As set forth above, although based upon different reasoning, the Court of Appeals
reversed and determined that TDOC, rather than Mr. Pressley, had the ultimate burden of
proof.
The TEAM Act specifies that, in a Step III appeal, the Board of Appeals “shall
conduct proceedings in accordance with the Uniform Administrative Procedures Act,
compiled in title 4, chapter 5, as modified herein, to determine if the law, rule, or policy
specified in the complaint was violated.” Tenn. Code Ann. § 8-30-318(h)(1)(C). The
UAPA mandates that “[t]he secretary of state shall adopt by rule, promulgated in
accordance with the rulemaking requirements of this chapter, a manual of policies and
procedures, including a code of conduct, to be followed by all administrative judges and
hearing officers.” Tenn. Code Ann. § 4-5-321(b) (2015). The Secretary of State did so
and promulgated the “Uniform Rules of Procedure for Hearing Contested Cases before
State Administrative Agencies” (hereinafter “Uniform Rules”), see generally Tenn.
Comp. R. & Regs. 1360-04-01.-01-.20, which govern contested proceedings before all
agencies that have adopted the Rules. These are the rules that administrative judges rely
upon in all contested cases utilizing judges from the Administrative Procedures Division
of the Office of the Secretary of State, whether sitting alone or with the agency, Tenn.
Comp. R. & Regs. 1360-04-01-.01. TDOC is one such agency, and accordingly, the
Uniform Rules apply to TDOC employees’ contested case proceedings.
The Uniform Rules are not silent on the issue of the burden of proof and address
its allocation by the ALJ in Tennessee Comprehensive Rules and Regulations 1360-04-
01-.02(3), (7). The Uniform Rules provide that the “petitioner” in a contested case
proceeding is the “moving” party, i.e., the party who has initiated the proceedings. See
Tenn. Comp. R. & Regs. 1360-04-01-.02(3). Likewise, the “respondent” in a contested
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case proceeding is the party who is responding to the charges or action brought by the
“petitioner.” See Tenn. Comp. R. & Regs. 1360-04-01-.02(4). The Uniform Rules
contemplate that, generally, the petitioner bears the ultimate burden of proof:
The petitioner usually bears the ultimate burden of proof and
will therefore present his or her proof first at the hearing. In
some cases, however, the party who initiated the proceedings
will not be the party with the burden of proof on all issues. In
such cases, the administrative judge will determine the order
of proceedings, taking into account the interests of fairness,
simplicity, and the speedy and inexpensive determination of
the matter at hand. The “petitioner” is usually a state agency
or department.
Tenn. Comp. R. & Regs. 1360-04-01-.02(3). The Uniform Rules define “burden of
proof” as follows:
(7) Burden of Proof—The “burden of proof” discussed in the
definition of “petitioner” above refers to the duty of a party to
present evidence on and to show, by a preponderance of the
evidence, that an allegation is true or that an issue should be
resolved in favor of that party. A “preponderance of
evidence” means the greater weight of the evidence or that,
according to the evidence, the conclusion sought by the party
with the burden of proof is the more probable conclusion.
The burden of proof is generally assigned to the party who
seeks to change the present state of affairs with regard to any
issue. The administrative judge makes all decisions regarding
which party has the burden of proof on any issue.9
Tenn. Comp. R. & Regs. 1360-04-01-.02(7). Accordingly, because the petitioner initiates
the proceedings and typically is trying to change the present state of affairs with regard to
an issue, the petitioner generally is assigned the burden of proof.
In the present matter, Mr. Pressley was a preferred service employee who was
terminated by a dismissal letter dated January 8, 2014, from the Warden of the MCCX.
9
The Uniform Rules provide that the ALJ has discretion to allocate the burden of proof to either
party on any issue in a contested case before the Board of Appeals if she determines “the interests of
fairness, simplicity, or the speedy and inexpensive determination of the matter” necessitate such an
allocation. Tenn. Comp. R. & Regs. 1360-04-01-.02(3).
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Under the TEAM Act, the termination of a preferred service employee takes effect
immediately upon notice to the employee and to the Commissioner of Human Resources.
Tenn. Code Ann. § 8-30-316(a). Thus, Mr. Pressley’s termination became effective upon
receiving his notice of dismissal and the filing of a written statement with the
Commissioner by the Warden.
In reaching its decision, the Court of Appeals commented that “it could be argued
that either party was seeking to change the present state of affairs—Mr. Pressley by
appealing the denial of his Step II appeal to the board of appeals or the State by seeking
to change Mr. Pressley’s employment status.” Pressley, 2016 WL 1559138 at *9. This
reasoning misapprehends the nature of Mr. Pressley’s employment and the structure of
the TEAM Act.
When Mr. Pressley was dismissed by letter on January 8, 2014, his termination
became final, effective January 17, 2014.10 Nothing more was required under the TEAM
Act to permanently sever Mr. Pressley from his employment with the State. The present
state of affairs when Mr. Pressley filed his Step I complaint with the Commissioner of
TDOC was that he was no longer a preferred service employee. Following his failure to
obtain a favorable resolution at both his Step I and Step II proceedings, Mr. Pressley’s
employment status with the State remained unchanged. He still was no longer a preferred
service employee. Thus, when Mr. Pressley initiated his Step III appeal before the Board
of Appeals, he was the “party [seeking] to change the present state of affairs” with regard
to his termination and should have been assigned the ultimate burden of proof. See Tenn.
Comp. R. & Regs. 1360-04-01-.02(7).
In the instant case, on the advice of the ALJ, the Board placed the ultimate burden
of proof on the State. This was improper for the reasons stated above. Accordingly, we
hold the Board erred when it assigned the ultimate burden of proof to TDOC to sustain
Mr. Pressley’s termination for cause. As noted by the chancery court:
The Board struggled with the burden of proof, struggled with
the absence of some proof, and relied heavily on its
conclusion that the Department did not carry its burden. The
Final Order of the Board of Appeals thus states – in every
place in which Mr. Pressley has been absolved of wrong-
10
We note that Mr. Pressley’s termination letter did not specify under which subsection of the
TEAM Act he was terminated. While not required by statute, better practices for all agencies terminating
employees under the TEAM Act would be to specify whether an employee is being terminated under
subsection 316(a)’s for cause provision or subsection 316(b)’s good of the service provision. See Tenn.
Code Ann. § 8-30-316(a), (b).
- 20 -
doing – that the Department did not carry the burden. That is
why Mr. Pressley was reinstated.
Like the chancery court, we cannot specifically predict what the Board of Appeals would
do if it had correctly assigned the ultimate burden of proof. Accordingly, we remand this
case to the Board of Appeals for the proper assignment of the burden of proof and a
resolution of this matter. All other issues raised by the Parties are pretermitted.
CONCLUSION
For the foregoing reasons, we reverse the decision of the Court of Appeals. We
remand the case to the Board of Appeals for all necessary proceedings consistent with
this Opinion.
_________________________________
JEFFREY S. BIVINS, CHIEF JUSTICE
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