Leslie K. Jones v. Tennessee State University

Added: 2026-05-30

[00:00:00]remainder of our docket. Mr. Clerk, please call our next case.

[00:00:03]>> Leslie K. Jones versus Tennessee State University.

[00:00:15]>> Mr. Mansion, you have a busy day today.

[00:00:19]Still happy to be here, y'all.

[00:00:20][laughter] >> Good afternoon. May it please the court again. I'm Joshua Menchin uh representing uh the appellant Tennessee State University and I'd like to reserve six minutes for rebuttal.

[00:00:33]>> Very well.

[00:00:34]>> The court of appeals should be reversed for two reasons. First, because Jones was an atwill employee, TSU did not need to establish good cause to terminate his employment. Second, regardless, the record contains substantial and material evidence of good cause. Employment at will is a bedrock common law doctrine in Tennessee and Leslie Jones was an atill employee at TSU. Yet, the Court of Appeals held that TSU needed to establish good cause to terminate Jones's employment, and the court ignored the hearing officer's independent determination below that good cause existed in the record to terminate Jones's employment. This holding undermines the bedrock principle or doctrine of employment at will is inconsistent with the relevant statutory framework and regardless the record contains substantial and material evidence of >> So why did your client agree to give the pliff a grievance hearing?

[00:01:37]>> Yes, your honor. Um TSU felt like its hands were tied by the Lawrence versus Rollins decision, your honor. Um, so that was the the court of appeals opinion um that essentially said that the termination it held that the termination of a support staff employee for a job related ground uh required a hearing. And so on one hand you have the common law doctrine of employment at will that says if you um hire an atill employee then you can terminate that employee for good cause, bad cause or no cause at all at any time. Um but then Lawrence interpreted um the the particular statute 117 that um is at issue today 49817 to essentially say that even if you have an at will employee if they are terminated for a jobrelated ground then even if they're at will you still have to give them a hearing. And so um it was essentially that uh in that circumstance TSU agreed to offer Jones a hearing um in that circumstance. But TSU's been consistent throughout that this is a termination of an at will employee.

[00:02:46]Correct.

[00:02:46]>> That is correct your honor. Even from before the hearing through the hearing and after that that is correct your honor.

[00:02:52]>> And so no grievance would there there would be no grievance in a situation like >> that is correct your honor. That is correct. Um and so >> so there I mean I suppose there this isn't the situation we have here but I suppose there could be a situation where you know a a university um has an at will employee that they terminate for a particular reason right it turns out maybe what they thought happened maybe in the course of the grievance procedure it emerges that whatever happened didn't whatever they thought happened didn't actually happen and perhaps in that situation they wouldn't want to terminate the employee after all. I mean, is that, you know, it's a little odd. This whole framework is a little bit odd when you're dealing with atill employees, like why you would even have the grievance procedure, but is that I mean, I suppose that could happen.

[00:03:38]>> It could happen, your honor. There's nothing in the statute that forbids universities from holding hearings. It's just that in certain circumstances, um, they need to be held, just not in the particular circumstance here.

[00:03:49]>> Is it your Oh, go ahead. No. Is is it your position that 117 would require a hearing under for an at will dismissal?

[00:03:58]>> No, your honor. And and the best way I think to to look at that is through looking at the text of that statute, what it actually uh does and who it does apply to. Um and so subsection A1 of that statute provides that the board of regents, each state university board and the University of Tennessee shall establish a grievance procedure for all support staff employees. So a grievance procedure is established. It is uh for support staff employees of which Jones was one. And then subsection A3 provides that support staff shall be given every opportunity to resolve bonafide grievances through the grievance procedure. So that gives kind of the purpose of the hearing. And then subsection B2 defines what grievance is.

[00:04:41]And it means a complaint about one or more of the following matters. demotion, suspension without pay or termination for cause or work assignments or conditions of work that violate statute or policy. That's it. That is a closed universe of what grievance.

[00:05:00]>> So in that context, let me see if I understand what is at issue to um as I and please correct me if I'm wrong.

[00:05:09]>> Yes, your honor. As I understand it, the issue is not just whether an employee was at will. If if it's an at will employee, then TSU did not have to fire for a cause. But issue number two, the university may choose nevertheless to fire an employee for cause uh because they want to uh some of the consequences that come from that that would not ordinarily flow from a termination that was not for cause. So the question in determining whether this statute applies it seems to me is number one is this an at willill employee did the employer have to fire for cause? If the answer is no then you still have to ask did the employer actually fire for cause or not.

[00:06:07]Am I right?

[00:06:08]>> Yes, Justice Kirby. does get to to whether the employer fired, terminated an employee for cause or or >> normally in the private sector. It's just is this an outwill employee? Boom.

[00:06:22]That's it. Uh you don't get into whether they were fired for cause or not for cause unless you know you're interpreting some contract or something like that >> or an employment benefits issue or something like that.

[00:06:34]>> Yes. Yes, your honor. It's now it's the um TSU's position um that what this statute doesn't do is require um the university to to hold hearings because it only mentions terminations for cause.

[00:06:47]And of course, as this court has held for decades, the common law is not displaced by a legislative enactment except to the extent required by the statute itself. And if we look at this at this language, uh it is not required for all uh at will employees. And there are what this practically so how this works itself out um is that both before and and after the statute if if a university wanted to terminate a support staff employee under the Atwell provision of their contract um what they would need to do in that case is they would need to provide the required notice and benefits. Um but the employee would not be entitled to a hearing um and the employer would not have to establish good cause. It could be fired good good cause good cause bad calls no cause at all. Um but they would need to to provide the required notice and benefits which in this case um uh to Mr. Jones was over $4,000 of benefits. Um the on the other side of it though the university can choose to fire a support staff employee for cause. And if they do that they don't have to provide notice.

[00:07:51]They don't have to provide that intervening pay or benefits. It goes into effect immediately. But if the employee grieavves their fore cause termination, then the employee must establish the good cause uh in a hearing. Uh and so that's kind of um what's at stake here. Sort of the practical ramifications. It's not that the the statute requires all at willill employees to to have a hearing. It does not. um we still uh abide by the the bedrock employment at will doctrine, but a university could under this statute choose to terminate an employee for cause. It would go into effect immediately, but in that particular circumstance under the statute, the employee has the opportunity to grieve uh and the university would need to um establish good cause in that particular circumstance. Yes, but if the university chooses to give a reason and you know go through the grievance procedure that doesn't suddenly convert the employees employment from at will employment into something else, right?

[00:08:53]>> That's that's correct, your honor.

[00:08:54]That's correct. A university could still choose to hold uh a hearing. Uh and actually in this case, because of the Lawrence decision, um that's essentially uh what happened here is that um TSU decided to to hold a hearing to essentially get everything out. uh on the table first of all kind of to talk about the um was Jones properly terminated under the atwell provision of his contract but then also whether good cause existed um to terminate his employment. So, let me see if I understand this. Uh, what flows? If you've got an at will employee, >> yes, your honor.

[00:09:29]>> And the university chooses to fire them for cause and there's a grievance procedure. I want to understand what the grievance procedure is then about. Um, yes, >> it seems to me that it would not be about whether the employee can be fired.

[00:09:48]It doesn't transform them into something other than an Atwell employee. Then it becomes from the consequences that flow from a cause firing related to the benefits and and that sort of thing, but not the original termination decision. The university can make that for any reason at all.

[00:10:12]>> Yes, that is correct, your honor. And I think that kind of goes to the confusion that that Lawrence has created in this general area. I think that TSU was was trying to be thorough and and cover its bases of we have a an at will employee that um under the common law can be fired for good cause, bad cause, no cause at all, but there is this Lawrence decision that says that if there's a job related ground, then we do need to hold a hearing. So we'll hold one and essentially cover all of these things.

[00:10:39]But to your point, Justice Kirby, the the kind of hearing that is particularly contemplated would be a hearing in which the university would need to establish good cause for the termination. It would >> but here TSU's position from the beginning has been not only is this an outwill employee, but this was not a four cause uh firing. If it if we needed to establish cause, yes, we have it. But >> this was not a four- cause firing.

[00:11:05]>> That is correct, your honor.

[00:11:05]Essentially, the the university and that's right. And we can see that from the fact that Jones uh received the notice, he received the benefits. Um but then at the hearing um both of those were fleshed out. Both the idea that he was an atill employee who was terminated under the atwill provision of his contract, but that there was also additional good there was good cause.

[00:11:25]>> So was that more of a belt and suspenders approach? I mean you didn't need to establish that.

[00:11:31]>> I Yes. Yes. Yes, you are.

[00:11:33]>> I'm trying to figure out why the university to Justice Tarwat's point uh why did the university take alternate positions which really confuses the situation?

[00:11:46]>> Yes. Yes, your honor. I think it was a belt and suspenders approach and I think it it kind of goes to the confusion that Lawrence has created as to why there there does need to be these hearings in in the first place for at will employees. Um, and so, uh, I think that's that's kind of what was going on going on in that particular, uh, circumstance. And so, I think kind of the the the frontline approach here, the frontline argument is that in this case, TSU simply was not required to establish good cause for terminating Jones's employment. Tennessee is an atill employment state. Uh, Jones was an atill employee and he was terminated under the atwill provision of his contract. Um, but alternatively, um, the record does contain substantial and material evidence of good cause. Um, and I think it's helpful to to spend just a moment, um, reviewing that the hearing officer here upheld Jones's termination on these two independent bases. first that Jones was properly terminated under the atwill provision of his contract, but second, additionally, and this is uh volume one, pages six and seven in the record, um that the record established good cause to terminate Jones's employment, looking to witness testimony, um letters of reprimand, uh suspension, and other corrective action. And so, uh the chancery court understood the hearing officer's decision to be based on these two independent grounds. The court of appeals acknowledged um that there were these grounds as well, though um the court of appeals failed to evaluate the hearing officer's second independent basis for upholding TSU's termination that there was good cause. Um and the reason this matters is that uh Tennessee code annotated 4532I forbids reversal of an agency decision except for errors which affect the merits of a decision complained of. And so if you have a hearing officer's decision that is based on multiple independent bases, um it's impossible to know if you don't look at all of the uh evaluate all of the bases on which um it's based. Um then then you can't know um if an issue actually affects the merits or not. It could be that the first ground is entirely wrong, but that the second ground is correct. And in that case, of course, the decision would still need to be um upheld. Um and so the uh here the court of appeals violated the UAPA by not evaluating the second independent ground. Uh and what's more, um the record does contain substantial and material evidence of good cause. Again, this is a very very generous standard. It simply means less than a prepoundonderance, but more than a a centilla or glimmer of evidence. And that is um viewed in in the perspective of the entire record. And so um in the record here um we see that that Mr. Jones was arrested and charged with harassment. Um he was suspended twice.

[00:14:46]Uh he received numerous complaints and warnings and violations for conduct unbecoming of a police officer toward subordinates um towards students. Uh he failed to follow the the the direct instructions of his supervisor. um he uh left campus and and falsified records to hide um that misconduct. Uh and then just before he was terminated, he disrespected his ultimate supervisor um the president of the university. And in a hearing with other members of the university community. Um and so this certainly constitutes more than a glimmer of of um evidence to support this um that that good cause existed in the record as uh good cause. Well, if I could interrupt you there, I wonder we talked a little bit about Lawrence and you mentioned that Lawrence seems to have caused some confusion >> and I'm I'm wondering if you think we need to abregate or overrule Lawrence in part or in whole and if so, you know, what exactly in Lawrence has been problematic?

[00:15:50]>> Yes, your honor. Um, so I think the most problematic aspect of Lawrence is the the particular language that that so Lawrence held that terminations stemming from the employees performance of his or her duties are terminations for cause.

[00:16:06]And it goes on to talk about how a a termination on a job related ground um requires a hearing. Yet, and that's based on 498117.

[00:16:16]Yet, the statute only provides that grievances are are um um allowed for demotions, suspensions without pay or terminations for cause. It doesn't say that that uh at will um terminations in any respect are are allowed or permitted under the statute. And of course um you know to the extent uh this court has held that the common law is not displaced except to the extent required by the statute itself then that is in that holding of warrants is in direct conflict with the statutory text. Um and so >> so how is it determined then whether when you got an outwell employee how is it determined whether the university fired them for cause? Uh if um the president of the university on the spot says you disrespected me, you are fired.

[00:17:09]>> Uh this is your twoe notice. You'll get your benefits during the two weeks. Blah blah blah.

[00:17:15]>> Yes, you are.

[00:17:16]>> Uh I mean arguably that's for cause because the president university is giving a reason but on the other but not trying to deprive the employee of the benefits.

[00:17:30]>> Yes sir. that would that they would be deprived of in a for cause situation. So if we were going to clarify when a grievance hearing is required and when it is not required, what does that termination flow from?

[00:17:46]>> Yes, your honor. I do think it's a determination um that is made by the university to specify whether uh an individual is terminated uh at will or for cause. In this letter, for example, it did spec specify that he was terminated at under the at will provision of his contract. Okay. Um and so I think that would be kind of the touchstone. Uh you're right.

[00:18:06]>> Do the policies and procedures of the university require that such not the notice regardless of whether it's at will or for cause be in writing?

[00:18:15]>> I believe that there does need to be something in writing, your honor. And I do think that from um this this court if it were to overrule abrogate um warrants um then I I do think moving forward um that a good practice would be for universities to specify um whether they are terminating employees um at will or for cause because the statute specifically only relates to uh for cause terminations. Uh and so I think that's kind of that is the underlying uh underlying issue there. So to justice Campbell to your to your point then we we are arguing that Lawrence was wrongly decided particularly as to the holding related to the job related uh ground in that particular >> why is that job related duty language not just a definition of for cause you're terminated for cause related to your job you didn't show up on time you didn't do your job well I'm struggling with the confusion you say Lawrence caused >> I think the implication there um your honor is that by requiring there to be a hearing. Um if a if a if a firing is based on a job related ground, so performance for example, um then it prohibits uh universities from being able to to um uniformly um engage in the the the common law doctrine of employment at will to terminate for good cause, bad cause, or no cause at all at any time. It essentially requires employees that would normally simply be be terminated um at any time to then for the university to have to go through the hearing process um in in particular circumstances that otherwise it would not have to. And that's actually what happened here.

[00:19:59]>> Is it that Lawrence was wrongly decided under those facts or is it just language that was loose if you will and has been over interpreted? What is the real issue? I do think I do think it is that Lawrence was wrongly decided, your honor, because um what Lawrence essentially the the ramifications of it are if an employee is terminated um based on their performance or um what have you in that circumstance even though normally an at will employee could just be terminated right then um they're actually the university is required to hold a hearing um and so for if if the a job related ground is is at issue like like was the case here that the letter specified that he was fired um at will but that he was fired for um because the university lost confidence in his ability to carry out his duties as assigned. So that is a that would be a jobrelated ground and that's sort of what brought it.

[00:21:00]>> Is that a problem with Lawrence or a problem with the university should have picked one way or the other in their termination notice? Well, the the termination notice did still specify um that it was an atwill termination and yet still based on on Lawrence and and the the idea that anytime you fire an employee on a job related ground um you have to hold a hearing that that holds essentially the university to the standard of if that's the reason why we terminate them we have to hold a hearing. Um, and so I think that's that's the the problem that Lawrence has has.

[00:21:36]>> Well, that that was why I was asking you what what does the determination of whether a the firing of an Atwell employee is for cause or not for cause?

[00:21:46]Does it depend on what was said by the university for the I mean that's a the reason here that was given was about as plain vanilla as you can get. Yes. The university has lost confidence in you.

[00:21:59]Uh but um if if the university was still giving him notice and giving him the other things that flow from a um termination without cause >> then so is it going to turn on what the university what they give what benefits they give the employee or try to take away or >> I I think it it should your honor I think that's how how it's it's supposed to work under under the statute. All the statute requires is if a university is going to terminate an employee for cause then there there needs to be a hearing.

[00:22:42]If not, there doesn't need to be a hearing. And there are practical ramifications as you were you were talking about Justice Kirby. If an individual is terminated at will, then they are required to get that notice.

[00:22:54]they are required to get the benefits to get pay for that certain period of time.

[00:22:59]Whereas if the university um fires based on for cause that goes into effect immediately but under the statute that individual uh that employee has the opportunity to grieve um their their termination. And so the bottom line is that here because Jones was an atwill employee who was terminated under the atwill provision of his contract. Um TSU did not need to establish uh good cause to terminate Jones's employment. Um and then uh alternatively um the record contains substantial and material evidence of good cause.

[00:23:39]>> Before we get to alternatively, >> yes. If TSU had just put a period at the end of the sentence that said we are terminating your at will employment period would we even be here? I think that also just gets to the confusion of Lawrence. I think the university felt like because Lawrence held that anytime you terminate an employee for a jobrelated reason because that was the reason. I think the university felt like under Lawrence it needed to essentially divulge that that it needed to to hold a hearing. Um that is an interesting question of if if they had not said anything um I think in that case still under Lawrence then the university would have done the wrong thing in that circumstance. And that just gets back to um the confusion that Lawrence has created in this area. Um I see my time's up. If there are no other questions, I reserve my time.

[00:24:46]>> Good afternoon. I am Gus Winter of the Nashville Bar. I represent Les Jones. I would like to turn the analysis on its head. Respectfully, I submit that the purpose of the statute is and was to modify the employment at will relationship between Tennessee Board of Regent Institutions such as TSU and a certain level employees, the support staff employees.

[00:25:18]and the statute is not subject to the at will employment at will doctrine. The employment at will with respect to these support staff employees has been modified.

[00:25:33]>> But if that's the case, why did the statute specifically contain the language terminations for cause? Why didn't it just not say terminations?

[00:25:42]>> Well, because it's limited. It it does not say that the support staff employee can't be terminated, but it does provide a modification and a protection to the sports staff employee. There are and I believe there's some acknowledgement of this in Tennessee state's briefing.

[00:26:01]There are other statutes that have modified the employment at will doctrine. There's the Tennessee Tenure Act. There are statutes that protect employment of police officers. There's the old Civil Service Act.

[00:26:14][clears throat] There's the present.

[00:26:15]>> But none of those are an issue in this case.

[00:26:18]>> No, but all of those are situations where there were job protections given to certain levels of public employees.

[00:26:28]In none of those cases has there been the sort of finding or ruling that Tennessee State University seeks to obtain here. and that is that the employment at will doctrine reigns supreme and it doesn't matter what the legislature enacted with respect to these employees. I quote from >> Mr. Winter I mean what what exactly are you pointing to you know in this law that you that you say abregates the employment at will doctrine. I mean, how does you know the the fact that a university chooses to provide a cause reason um for terminating employee suddenly mean they can't they can no longer terminate the employee for no cause, good cause or you know any cause at all >> because the leg that's what the legis our first job >> but what in if you can point me to language I mean I understand that that it that it creates a grievance procedure when a termination is for cause but But what I guess precludes what in the law itself precludes an employer for alternatively you know terminating an employee for no reason.

[00:27:42]Well, the first if if the employ because if the employer has liberty to decide if there is cause but to avoid the the process of a a hearing, a grievance hearing, and just say this is per contract. That frustrates the legislative intent. In fact, as we've seen in this case, it renders the legislation totally insignificant and superfluous in this.

[00:28:15]>> How does it I I don't understand your argument in that regard because it's still, you know, if a if a university does choose to provide a reason, it would still entitle that employee to a grievance procedure, right, to determine whether that reason is supported by substantial and material evidence.

[00:28:31][clears throat] >> Can I expound upon my point?

[00:28:33]>> Sure.

[00:28:34]>> All right. In this particular case, Sergeant Jones was called in by his police chief commander and told he was being fired for issuing an e- alert.

[00:28:46]That clearly was a termination for cause.

[00:28:49]3 days after Sergeant Jones was terminated by police chief Bance, he received a letter from uh uh Vice President uh Dr. Samuels who walked it back and said, "You're not being terminated for cause. You're being terminated pursuant to the terms of your contract." Therefore, even though Mr. Jones went ahead and filed his application for a grievance hearing, none of that happened. Now, during the six-month period of time when uh interim president Shields was in charge, Sergeant Jones was one of four police officers who were terminated. And the termination letters of all four are in the record. And in each and every case, the letter from Dr. Samuels or from President Shields was, "You are being terminated pursuant to the terms of your contract."

[00:29:46]The testimony of the human resource director, Miss Spears, is that in the 20 year history, there have been less than four less than five terminations for cause by the university.

[00:30:01]If you look at this statute 47-8-119 from the date of the Lawrence versus Rollins decision in 2001 until we get to Jones versus Tennessee State University in 2026, there is not one published or unpublished decision regarding a support staff employee trying to get his employment restored when he has been terminated.

[00:30:30]this statute if it's read if it's put into the hands of the institution there's a chokeold and it just doesn't exist.

[00:30:40]>> Well, but doesn't that beg the question of whether Lawrence was correctly decided because all that happened after Lawrence, right?

[00:30:50]That's crap. So, it's it wasn't just after the statute. It was after the the court of appeals interpreted Lawrence in the way it did. Well, my point is is that it never makes it to even the into the trial court or the admin or the appellet level as best I can tell. and what we have here.

[00:31:12]>> So I understand your argument um that uh about the consequences of overruling the perception of Lawrence and that it would frustrate the purpose. But let me circle back to Justice Campbell's original question on what particular language in 498 117 are you relying on to say that it actually modifies the atwill status of the of the support staff employees? Can you point me to particular language in the statute? The language in the statute is that there's a a right to grieve.

[00:32:00]>> No, no, no. I'm I'm not asking for a overall description because we this case is going to require us to interpret uh this particular statute. And so what language are you asking us to? You're asking us to hold that this statute modifies the at will status of the support staff employees. So what language are you asking us to interpret in that way?

[00:32:32]>> The language in the statute that says termination for cause that language and I don't have this the statute in front of me. I apologize.

[00:32:42]>> Maybe I can help you. I'm I'm looking at it. any complaint about demotion, suspension without pay, or termination for cause shall receive a hearing under the UAPA. Is that the statute that you're relying on?

[00:32:56]>> That is exactly it.

[00:32:57]>> And and your position is that that statute draws a red line through the employment at will doctrine in this state for public employees?

[00:33:06]>> No, for support staff employees.

[00:33:07]>> For support staff employees. So, so no more employment at will for them because of the language in this statute that doesn't mention that doesn't have the words employment at will in the statute.

[00:33:19]>> That's correct. And it's it's no different from >> Tell me how you get there, Mr. Winter.

[00:33:24]I'm I'm I'm curious.

[00:33:26]>> And in fact, having been in your position before, tell me how that works.

[00:33:31]And >> in fact, to the point that they added the language of for cause. They didn't just say terminations.

[00:33:38]Well, if there is a termination for cause, then there's a right to grief. And I would call your attention to the notice and statement of charges and hearing which is a form that the TBR institutions are required to do and this is set forth in the TSU evidence in the record that complies with the TBR policies relating to this statute. And if you look at the notice and statement of charges and hearings, it's the function of that is to give the discharged employee or the employee who is in the process of being terminated for cause notice of what he did wrong and a right to defend himself.

[00:34:25]>> But that begs the question, >> I'm sorry.

[00:34:28]>> That begs the question.

[00:34:30]>> You're saying because you say if they're terminated for cause. Well, in this instance, it's TSU's position. And he was terminated without without cause that that he that was at at will. And this statute is interrogation of common law which we are also by by rules of construction say we are to strictly construe something against common law and and there's nothing in this statute that says it's ter it's abregating the employee at will.

[00:34:55]>> It's not abregating it. It's but it is modifying it. And is this any different from from the team act or the civil service act or the teacher tenure act?

[00:35:06]>> Well those acts provide a change to the status of employment. They abregate the common law of at will. So what in this statute does that >> they gave the stat they gave employees a property right in their in their employment is what they did.

[00:35:20]>> Yes.

[00:35:21]>> This doesn't well it it just says I mean it's it modifies it. It gives the the employee a right to appeal his terminate a termination for costs. Otherwise, it doesn't have any function at all.

[00:35:36]>> But I I don't see how a university's choice to provide a reason for a termination somehow converts the status of the employees employment from at will to, you know, only terminable for cause.

[00:35:55]that that's about I mean the the the status the relationship between the employee and the employer is is a matter of contract in this situation and the the statute doesn't change that. You can't point us to anything in the statute that changes the nature the underlying nature of employment. This does create a right to a grievance procedure when a termination is for cause but that doesn't change the underlying employment relationship does it?

[00:36:24]>> Yes. Uh, and I would say, doesn't Lawrence versus Rollins hold that?

[00:36:28]>> Well, we can certainly abregate Lawrence.

[00:36:31]>> Court of Appeals did. Yeah. But but that's not us.

[00:36:34]>> I understand.

[00:36:36]>> Uh, but that's that's the the position I'm making. And and one thing I would point out here, we're talking about support staff employees, which are >> Could you stay kind of close to the microphone so people on the live stream can hear? No problem.

[00:36:50]>> All right. Thank you, Eron. support staff employees as defined in uh Lawrence versus Rollins and and they are the uh security guards, they're the custodians, they're the food service employees, they are at the lowest level of employment at the TBR institutions.

[00:37:13]This is remedial legislation to help those people and give them some measure of job protection and remedial statutes are to be read liberally to construe the purpose for which they're intended.

[00:37:29]>> Let me clarify your position. Is it your position that even if the university does not provide any reason for a support staff member's termination that that staff member is entitled to a grievance?

[00:37:45]>> If the so grievance procedure >> the employer just says you're fired and doesn't give reason.

[00:37:49]>> Yeah. Like under the hypothetical Justice Tarwater talked about put a period in it.

[00:37:53]>> All right. Then it's up there is the option that the employee discharged employee has is I think I was fired for cost and just because you choose to treat this as a termination per contract under 47-8-119.

[00:38:18]I have the opportunity to file a grievance and make and determine have a hearing to determine whether or not I was fired for cause or not.

[00:38:28]>> And then the university has to establish that it in fact had cause.

[00:38:32]>> Yes.

[00:38:33]>> Even though even though the employee is an is an employee at will and the statute itself only only uh requires a grievance procedure when a termination is for cause. That's a very I I mean you're the court and I'm not, but I think that's a a narrow reading of the statute and this is something that should be read broadly to to achieve something that is remedial in scope. And yes, uh, what I've tried to demonstrate and what the record I believe supports, if if this decision as to whether or not to terminate for cause is left to the TBR institutions, then the statute doesn't exist at all. And it's not it's not.

[00:39:20]>> Explain that to me because you're saying it's as if the statute doesn't exist.

[00:39:23]But do you think the remedy here is that he gets his job back or is the remedy just he gets the benefits as if he was terminated with no cause? he gets his job he gets his job back if he and and that's the idea that that the employer the TBR institution could determine what relief he gets or whether he gets any relief at all is contradicted by the grievance proceeding hearings and the results.

[00:39:55]There are uh procedures where well there's four steps in a in the grievance procedure under this act and under the TSU policies and at any time there can be an agreement there can be a ruling.

[00:40:12]The p the purpose of having a hearing officer is not to decide whether or not the discharged employee gets 14 days worth of pay or not. The purpose is was was this person wrongfully discharged for cause and therefore entitled to get his job back.

[00:40:31]It's no different from the from the other statutes that that try to provide some level of job protection for public employees.

[00:40:41]>> That is a sweeping transformation. And you're asking us to find that this statute really just affected a wholesale change in the common law based on no express language. I mean really just by implication and we simply don't do that under long-standing precedent. We don't uh we you know we we require an express um deraggation of the common law >> well to provide for people who let's agree prior to the enactment of this statute there's no question sport staff employees were employment employees at will. But when you have a statute that states that those employees formerly at will employees have a right to a degree of a termination for cause. If all they do is well okay you get 14 days pay then it doesn't have any purpose and that's that's a very narrow reading of the statute.

[00:41:40]>> Well the legislature can amend the statute if it's not doing what it thought it was going to do. But I mean, we we have to go based on the actual language of the statute. And there's just really nothing there that would allow us to effect that sort of wholesale change to the common law.

[00:41:54]>> And as a practical matter, if the the fact that they're adding terminations for cause and establishing a grievance procedure for that is a change in the law. that prior to this statute, those same employees that you're talking about, the support staff, even if they're terminated for cause, the boss says termination for cause and their remedy is to go to court. Here there this statute establishes a grievance or requires the the employers to establish a grievance procedure when they do try to terminate for cause because of the other things that hap that are are the consequences of a termination for cause versus a termination at will.

[00:42:39]Yes. And and those grievance procedures if one looks at them provide mechanisms for relief for the employee.

[00:42:48]in a termination for a cause.

[00:42:50]>> Yes. Yes. But and and let's go back for a second to your comment about this is this is the same as civil service and all those and and correct me if I'm wrong, but my direct recollection having served as assistant commissioner, general counsel of the Tennessee Department of Personnel for a significant period of time was that civil service statute specifically said that employee state employees have a property right in their their position.

[00:43:18]Right.

[00:43:19]I will defer to to your expertise and experience on that point. But the question then becomes, what does this mean? Does this mean nothing? Does it really mean all it means is whether or not an employee gets two weeks and he's out the door and that his fate is determined by how the employer decides to phrase the termination. That doesn't sound right. And if I would uh in the time I've got left, I I would like to briefly address the second half of this.

[00:43:50]And that is where Tennessee State University is arguing, well, even if we're wrong about the first part, we're right about the second part that we proved that there was good cause to terminate the employee, even if Mr. Jones somehow gets past the first hurdle. Well, the there's a couple reasons why that's not the case in this instance. In this instance, there was a failure, as I briefed on the part of TSU, to put down in its notice of statement of charges any for cause grounds as to why Mr. Jones was being terminated. It was worse. It it all TSU said in the charges was, "We are terminating you, Mr. Jones, pursuant to the terms of your contract, and we don't even have to articulate a reason why we're doing it. This is not due process.

[00:44:46]It's it's not fair play. And worse than that, it violates the rules of procedure that applied to UAPA. And I I can't quote the exact statute but it's in the brief which says that the pleadings of the parties including a notice of statement of charges defined the scope of the matters in dispute.

[00:45:10]They did TSU made a calculated decision not to insert any for cause grounds in the notice and statement of charges. And for that reason alone, now that's there's no difference to the agency for a decision like that, that's an application of law to the facts of the case and there's a procedural error there. There was that really is determined of the issue of that second issue. Further, when you look at what the hearing officer actually stated, he didn't identify any acts of of misconduct on the part of Mr. Jones that Mr. Jones had not previously been disciplined before. Anyway, the sum and substance of what the hearing officer found was that there were there was a history of performance issues and there was concern on the part of the employee in a for cause hearing that really doesn't cut the mustard. There's case law the the Finny case and granted it's it's not a Supreme Court case. It's reported decision which basically holds that you can't punish an employee for the same misconduct twice and there there was reference to uh an exchange between Mr. Jones and interim president Shields which was disputed by not only by uh Mr. Jones but also by police chief BGance supported Mr. Jones testimony on what happened there. [clears throat] And in terms of what the hearing officer found, he didn't find that Mr. Jones was disrespectful to President Shield. He didn't find any specific act that hadn't already been addressed by corrective discipline. So that part of it is, you know, that's our case on that part of it. That's all I have. If there are any other questions, I'd be happy to take them up.

[00:47:21]>> Thank you.

[00:47:22]>> Thank you, Mr. Where?

[00:47:42]Just a few brief points, uh, your honor.

[00:47:45]Um starting off with the the first prong and my my friend on the other side's argument about um the purpose of 49817 and its purpose in in modifying the employment at will doctrine. Um there simply is as as um there was questions about this. Um there certainly is is nothing in the the statutory text um that indicates a modification of the uh employment at will doctrine. Um and just going back to to this court's long-standing precedent about how the common law is not displaced by legislative enactment except to the extent required uh by the statute itself. Uh and we simply don't see that based on the text of this statute. My friend mentioned um that uh reading it the way that TSU um would would have you do it would render the the legislation superfluous. But um to Chief Justice Bivven's uh point um the statute does um important work. It does provide um protections for employees who are demoted or who are terminated at will in particular circumstances. It does provide them with an opportunity to have a hearing and if they're correct to receive their position back or to receive pay or or certain things of that nature. It just doesn't apply in this particular context to at will employees based upon uh >> you're said you said that the relief for the grievance procedure is that they would get their job back. Are are you talking about that with at will employees or not at will employ? Your honor, I'm simply talking about under the the scope if for example an employee is demoted uh and and um that employee goes through the grievance process and the university is not able to um satisfy the good cause standard there that the that employee would be able to get their job back uh in that particular circumstance. Um and so we're just saying that um the process as laid out in 498117 [clears throat] uh it simply doesn't apply to at will terminations.

[00:49:55]>> Mr. Mansion, let me ask you about Mr. Winner's point that it with regard to the alternative argument that the there was there is evidence to support a termination for cause here.

[00:50:08]>> Yes, your honor. and his his point was that the notice of charges do not actually contain facts supporting the four cause termination. What do you say to that?

[00:50:19]>> Yes, your honor. I I have a couple of responses. The the first is that uh at this stage in the proceedings, we are here uh to determine whether there is um substantial material evidence to support the hearing officer's determination. Um and so uh any sort of issues looking at uh at the notice um we're sort of past that uh at this point. Um that pleading issue was not previously addressed by any court. Um Jones didn't raise it in either his petition for judicial review or his rule 11 response. Um and so uh under rule 27B that uh it's required that parties state the issues and the arguments involved um in its request for relief as well as the answer to the brief of the appellent or party. Uh and so for those reasons um we don't think that that that argument uh has uh merit.

[00:51:12]But I will also point out that the cause issue actually was um in the pleadings.

[00:51:17]It particularly states this is page 311 of the record. if the court even gets to this point that the purpose of the hearing will be to determine whether the respondent's grievance challenging his termination and seeking reinstatement meets the conditions for a grievance and has merit under the university's grievance standards. Previously, it had talked about how in the allegation sections that that Jones had stated he put his performance as a member of TSUPD into uh dispute and indicated that his performance did not warrant termination.

[00:51:47]And so under the merits um review that was taken into that was to be sort of taken into account uh in the hearing.

[00:51:56]>> Well, but that's still not spelling out the facts that would serve the basis for that determination. Right.

[00:52:02]>> That that is true, your honor. That that that Well, >> so he would when he would not have re I mean I understand your waiver argument.

[00:52:09]>> Yes, your honor.

[00:52:10]>> But if in fact I mean the normal procedure would it not would be would it not that the notice charges would specify the conduct which which warranted the dismissal with the termination for cause to give the employee proper notice and an opportunity to defend that.

[00:52:31]>> Yes.

[00:52:31]>> In a grievance process.

[00:52:32]>> Yes. Yes, your honor. That that >> that didn't happen here.

[00:52:35]>> That that is true, your honor. And one one final point though that I I would like to make is that um even if this issue was not explicitly um laid out in the pleadings um it can an issue can still be tried by express or implied consent and at the hearing this was this played a a major role all throughout um the hearing and so we would argue that that that also uh occurred uh in >> when you say sorry when you say this played a major role >> uh the good cause the good cause issue.

[00:53:04]Yes. Yes. as well as as the the evidence in the record. And one one final point that I'll make is the Finny opinion that my my friend cited to um actually supports the idea that that prior conduct may be considered. This is page 689 when determining the appropriate disciplinary action. It goes on to say it would be nonsensical for the appointing authority to be prohibited from pursu um considering that this appellant was disciplined five times previously for the same type of misconduct. And so, uh, our our point is that, um, there is certainly more than a a glimmer of evidence of good cause in the record. Um, prior conduct can be considered. He was not disciplined for the the, um, open disrespect toward the university president. And so, uh, for all these reasons, we would ask that the court reverse.

[00:53:47]>> Thank you so much.

[00:53:48]>> Thank you very much. Thank you, councel.

[00:53:50]We appreciate the arguments here.

[00:53:53]Go ahead.

[00:53:55]>> Okay. All right. Mr. Torque, if you call our next case, please.

[00:54:00]Mark T. Young individually doing business at Mark T.