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Cooper v. City of Memphis Civil Service Commission

Court of Appeals of Tennessee, Jackson

August 12, 2019


          Session June 19, 2019

          Appeal from the Chancery Court for Shelby County No. CH-17-0507 Walter L. Evans, Chancellor.

         A lieutenant with the Memphis Fire Department was terminated after a positive drug test. Although this termination was upheld by the Civil Service Commission, the Shelby County Chancery Court later reversed the termination and ordered that the lieutenant be reinstated to his previous employment. For the reasons stated herein, we reverse.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded

          Bruce McMullen, City Attorney; and, Sharon L. Petty, Senior Assistant City Attorney, for the appellee, the City of Memphis.

          Kathy Laughter Laizure, Memphis, Tennessee, for the appellee, Marlon Cooper.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which Kenny Armstrong, and Carma Dennis McGee, JJ., joined.




         Marlon Cooper, a former lieutenant with the Memphis Fire Department, first tested positive for marijuana in 2008. At that time, Mr. Cooper was not terminated from his employment, but instead, was suspended for 360 hours and thereafter entered into an employee assistance program ("the EAP program"). According to Daryl Payton, the Fire Department's Deputy Chief of Administration, the EAP program is not always provided as an option to first-time offenders. Indeed, as a workplace safety and compliance manager with the City of Memphis would later testify in this matter, "there's no guarantee of a second chance."

         Although Mr. Cooper was given a second chance on this occasion, the City of Memphis made clear that illegal drug use was not permitted by its personnel, noting as follows in its 2008 suspension letter to Mr. Cooper:

Please know that the Fire Division will not tolerate its employees being under the influence of intoxicants or illegal drugs while on-duty or off-duty. Your behavior has jeopardized the lives and safety of your fellow employees and citizens of Memphis, including yourself. The quality of emergency services rendered by this department to the Memphis community has been extremely compromised by your actions. Any further violations of this nature may result in your termination from the Division of Fire Services.

(emphasis in original).

         Despite this warning, Mr. Cooper tested positive for marijuana again on January 15, 2016 following a random drug screen while on duty. Shortly thereafter, in a document labeled "Notification of Administrative Investigation and Hearing," Mr. Cooper was informed of possible violations of the Division of Fire Services Operations Manual and/or City of Memphis Personnel Manual. This document indicated the January 15 drug test was Mr. Cooper's second positive drug screen and stated that a hearing would be held on January 25, 2016. Mr. Cooper was specifically informed that he was entitled to union representation, and the notification document concluded by emphasizing as follows: "The results of this investigation and hearing could lead to disciplinary action being taken against you, up to and including termination."

         Mr. Cooper ultimately never challenged the results of the drug screening, [1] and throughout the subsequent disciplinary process, he never asked for union representation. As he would later explain, "I didn't even have union representation at the hearing because I wanted to face up to what I had done." It was Mr. Cooper's expectation that he would receive an unpaid suspension and be referred to the EAP program again, but that did not occur. According to a City official, the City administration had become more restrictive in terms of who qualified for participation in the EAP program:

There is nowhere in the policy where it says you're going to get a second chance. There is reference to an opportunity to go through EAP, if eligible.
So I know that with Mr. Wharton, not to say that previous administrations did not take it seriously, but just in the interest of safety, the position was that we did not want to give third and fourth and fifth chances when we're talking about drugs, because this is a very serious situation and our safety sensitive employees are doing very serious work.
So the thought was, after you've had a second chance, the City has given you a second chance, that will be the last chance. And that started with the Wharton administration.

         Following his scheduled administrative hearing, Mr. Cooper was terminated ...

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