Session May 12, 2015
Appeal from the Chancery Court for Shelby County No. CH1209363 Kenny W. Armstrong, Chancellor
Herman Morris, Jr. and Barbaralette G. Davis, Memphis, Tennessee, for the appellant, City of Memphis.
Darrell J. O‟Neal Memphis, Tennessee, for the appellee, Dyanna Wilson.
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Brandon O. Gibson, J., joined.
J. STEVEN STAFFORD, JUDGE
Plaintiff/Appellee Dyanna Wilson was hired by the City of Memphis ("the City") as an equipment operator in 2006. Ms. Wilson's job description required her to work under the supervision of a supervisor and perform various outdoor work. This case involves several incidents of misconduct on the part of Ms. Wilson that resulted in the termination of her employment.
Specifically, on February 27, 2009, Ms. Wilson was issued a Notice of Fact Finding Hearing related to charges that Ms. Wilson failed to comply with direct orders of the foreman, shift supervisor, and supervisor on three separate occasions. The first notice stated that Ms. Wilson was being charged with violations of the City of Memphis, Division of Public Works Rules ("Public Works Rules"),  the City of Memphis Personnel Manual ("Personnel Manual"),  and a Memorandum of Understanding between the City of Memphis and the union representing City employees ("Memorandum of Understanding"). Service of the February 27, 2009 notice was attempted by certified mail, but was returned unclaimed. A second notice concerning the same charges was issued on March 17, 2009. A copy of this notice was also returned unclaimed.
A fact finding hearing occurred on March 27, 2009. Ms. Wilson was present at the hearing and given an opportunity to respond to charges that she had committed several instances of inappropriate workplace conduct between February 5, 2009, and February 17, 2009. These instances involved: 1) a February 5, 2009 incident where Ms. Wilson refused to put on her work boots and help with the excavation of a hole, despite repeated direct orders from the job foreman; 2) a February 12, 2009 incident where Ms. Wilson refused a direct order from a supervisor to move a tandem truck to allow school traffic to proceed, indicating that she would only take orders from the foreman; and 3) a February 17, 2009 incident where Ms. Wilson refused to attend a meeting intended to provide Ms. Wilson with a notice of fact finding hearing for prior alleged disciplinary violations.
On April 9, 2009, a notice of decision was rendered finding that the allegations against Ms. Wilson were sustained. Specifically, management determined that Ms. Wilson "consistently exhibited behavior that is non-cooperative and combative towards management." Accordingly, Ms. Wilson was found to have violated the applicable Public Works Rules, the Personnel Manual, and the Memorandum of Understanding. With regard to the Public Works Rules and the Personnel Manual, Ms. Wilson received an oral reprimand for the first incident, a written reprimand for the second incident, and a one day suspension for the third incident. With regard to the Memorandum of Understanding, Ms. Wilson received a one day suspension for the first incident, a five day suspension for the second incident, and a ten day suspension for the third incident. Accordingly, Ms. Wilson was to serve nineteen days of suspension. Ms. Wilson was also ordered to participate in the City's Employee Assistance Program within seven days, pursuant to the Personnel Manual. The letter further indicated that "[a]ny future incidents of this nature will result in more severe disciplinary action up to and including termination of employment with the City[.]"
A second disciplinary action resulted, in part, from Ms. Wilson's alleged refusal to cooperate during the first disciplinary action. Specifically, a third Notice of Fact Finding Hearing was issued on April 9, 2009 concerning alleged misconduct between February 27, 2009, and April 6, 2009. A fact-finding hearing occurred on May 8, 2009. Ultimately, this disciplinary action involved four separate incidents of alleged insubordination by Ms. Wilson: (1) a February 27, 2009 incident wherein Ms. Wilson refused to accept a Notice of Fact Finding hearing concerning the prior allegations, despite direct orders to do so; (2) a March 29, 2009 incident wherein Ms. Wilson again refused direct orders to accept the Notice of Fact Finding Hearing; (3) an April 6, 2009 incident wherein Ms. Wilson refused a direct order to push and unload dirt from a truck; and (4) the fact that Ms. Wilson refused to participate in the City's Employee Assistance Program, despite being ordered to do so in the April 9, 2009 decision letter.
The charges relating to all four incidents were sustained by decision letter dated May 15, 2009. For her violations of the Public Works Rules and Personnel Manual, Ms. Wilson received five days of suspension for the first incident, ten days of suspension for the second incident, fifteen days of suspension for the third incident, and thirty days of suspension for the final incident. For her violation of the Memorandum of Understanding, Ms. Wilson received fifteen days of suspension for the first incident, thirty days suspension for the second incident, and termination effective immediately for the third and fourth incidents.
Ms. Wilson filed timely appeals of both disciplinary actions to the City of Memphis Civil Service Commission ("the Commission"), which appeals were later consolidated. A hearing was held on Ms. Wilson's appeal to the Commission on February 10, 2012, and March 23, 2012. Ms. Wilson was present and testified, as did several of Ms. Wilson's superiors. Ms. Wilson admitted that she "routinely refused to do what was asked of [her] by [her] superiors." However, Ms. Wilson indicated that she refused orders only when the orders were "not right." The Commission issued a decision on May 16, 2012, containing detailed findings of fact and conclusions of law. In its decision, the Commission found that the termination of Ms. Wilson's employment was reasonable under the circumstances and was supported by a preponderance of the evidence. The Commission further found that the allegations regarding Ms. Wilson's repeated refusal to comply with direct orders were substantiated by the evidence and "constitute
'gross misconduct‟ on the part of Ms. Wilson, " citing the Public Works Rules, the Personnel Manual, and the Memorandum of Understanding. Accordingly, the Commission found that there was just cause to terminate Ms. Wilson's employment.
Ms. Wilson filed a petition for a writ of certiorari regarding the Commission's decision on June 5, 2012, in the Shelby County Chancery Court. Ms. Wilson sought backpay, reinstatement, and attorney's fees and costs. On May 14, 2013, the trial court remanded the matter back to the Commission to clarify whether its decision was based upon the Memorandum of Understanding, which the trial court ruled was non-binding, or the City's Personnel Manual, which the trial court ruled was an appropriate basis for discipline. Specifically, the court's order states:
1. The City  cannot rely on the terms of any Memorandum of Understanding . . . as grounds to suspend, terminate or to take other disciplinary actions because Tennessee case law establishes that collectively bargained memoranda or contracts are nonbinding and unenforceable;
2. If the Commission based its decision upholding [Ms. Wilson's] termination on the binding nature of the Memorandum of Understanding to do so was error;
3. Upon remand of the case the Civil Service Commission is to clarify whether or not its decision to uphold termination of Petitioner's employment was based on the City's Personnel Manual only, without consideration of the Memorandum of Understanding, which is not enforceable against [Ms. Wilson] under Tennessee law;
4. The Court finds that without consideration of the Memorandum of Understanding as a basis for discipline, the notice of disciplinary action provided to Petitioner at most supports suspension, not termination, based on the City of Memphis Personnel Policies and Departmental Work Rules;
5. Finally, the Civil Service Commission's decision is not supported by the record to the extent it makes findings that are inconsistent with the notice of disciplinary action provided to Petitioner by the City of Memphis on May 15, 2009, disregarding the provisions of the Memorandum of Understanding referred to in the Commission's decision.
6. All other issues raised are reserved pending remand of this matter.
The Commission entered a supplemental order on August 16, 2013, clarifying that its decision was solely based upon the City's Personnel Manual and Public Works Rules. Specifically, the supplemental order stated:
The Commission has reviewed the record of its proceedings, pursuant to the Court's direction, and hereby confirms that its May 16, 2012 ruling was based upon the City's Personnel Policies and DPW work rules, and was not based upon alleged violation of the [Memorandum of Understanding]. The fact that the [Memorandum of Understanding] acknowledged that "Gross Insubordination" constituted a "Major Infraction" for purposes of job discipline was coincidental to the fact that Ms. Wilson's repeated refusals to comply with direct orders from her DPW supervisor constituted serious "insubordination" and failure "to maintain satisfactory work relationships", as set forth in [Personnel Manual] 38.02 (2) & (4) of the City's personnel policies (Ex. 16), and also constituted failure "to comply with all orders of supervisors" and failure "to perform work as requested", as set for in [Public] Work[s] Rules 2.02[.]
The trial court, however, was not satisfied with the Commission's supplemental order, as it "failed to show an objective review of the record" and failed to comply with the City's Charter, which required that the decision be rendered by a chairman and two commissioners. Accordingly, the trial court again remanded the matter back to the Commission. The Commission entered a second supplemental order on July 28, 2014, noting that while the initial order was entered by a three-member panel, one commissioner had retired at the time that they were required to render the supplemental order. The Commission further noted that given the Commission's and ...