case number fourteen five one nine two joe allen versus the city of jackson tennessee and others arguments not to exceed fifteen minutes per side mr moore for the  was your client's consideration for the contract he was already in at will employee so so in order to have an additional you're saying that the zero tolerance policy is a contract what's the consideration this consideration was he actually will employee so did he have a contractual interest in the existence of that policy you have a contractual decision no you and he had a benefit as an employee however the way this this policy was rolled out each and every employee had to see each and every employee it was volunteers it was part time employees was temporary employees everyone all the sudden had to sign a document and say i'm going to submit to a drug test to keep my job that's what i have to do and if i fill this drug test then i will receive the opportunity to challenge it well first the drug test was at a screening and then a confirmation to so if an individual failed the screening and the confirmation also showed a positive drug test then that person was terminated then the person would be have the opportunity to appeal when one of two ways or twice actually i think once at the city's expense and secondly at their own expense now there's case law that says that in the state of tennessee or for a employer to be bound by policy change or employee to change the status of an employee their policy changed the employer has to be bent on what the employer did in an illegal substance they could have been turned terminated at least an at will employee could have been terminated without a drug test so since the city want to save approximately thirty thousand dollars a year in implementing this this new policy and it bound it then your man did test positive you you argue about the level but there's nothing in the zero tolerance policy about level right it says positive and your main head point sixteen and point one eight on the two times so here's why doesn't that fall directly within the policy there's a big ambiguity in the policy it says on its face zero tolerance policy and then speaks of a screening test now commonly screening tests require that the the to show a positive track test the cutoff is fifty and anagrams per milliliter well that's what that's what the company sort of says but it's not in the policy that's all as he says positive or negative  were to have had discovery and inquiry as to what was the actual level that the city was using and if the city would and it would have responded that we were actually at zero then there would be no ambiguity that there are only in the court where you found yourself the there was a local park a local rule that required a response to a submission of material facts that you were to dispute  have your client did not dispute the material facts in a timely fashion in accordance with the local rule we we follow and declaration pursuant to our reliance from metal works versus absolutely appreciate that so what did you give in in response to rebut the motion for summary judgment we gave a declaration and ok what was in that declaration was it sworn to destroy that ok and what what did it again erred with with the issue of this of the contract without the contract then basically what the city of jackson is able to do is to arbitrarily give a drug test not set the standards of what what is passing w supposed to be at his own instigation and cost did he do that or asked to do it he asked to do it approximately five weeks after his terminations and that was never given to him subsequent to that i was retained and that no declaration i think we figured that out ok i'll go on that and based on that i'd think that it is clear that judge brain did not abuse his discretion in denying the simple request in the memorandum to take additional discovery in this matter since it did not comply with the rule fifty six day nor did it nor is there a motion asking for discovery and the abercrombie versus fitch cases cited by the appellant but never crumb citing think it's a plot case the court goes on to say that if if you don't comply with rule fifty sixty and you don't follow a motion to compel discovery in this court is not going to look into whether the the motion was filed or the should  additional discovery once the motion for summary judgment was filed and the policy in this case i believe judge cook mentioned that it says it's a zero tolerance policy and that's what it says when you read the policy what it prohibits in a nutshell the employees being under the influence of drugs illegal drugs in this case marijuana while performing their duties for the city it says under the influence is defined in the policy as level sufficient to cause the laboratory to report a positive drug screen that that there is positive for the marijuana and that's exactly what the city had in this case this test was done initially i believe in april of two thousand and twelve there was a second test as judge brain said in his in his memorandum it does not obligate the city to do anything the city is not even obligated to do the second test it's said that if you're positive in the first test there may be a second test and this court's language and and the same thing about the third that is that says a third test may be conducted on the same sample you make the same argument with respect to that as your adversary says they they asked to prove the third test and never got it may and they did ask the third test i think they probably asked for it twice there is a series of letters that judge brain in his in his order outlines because that's one of the things if i could skip it just a second to the issue about the a stigma twenty thirteen during this time there was an exchange of letters one of these letters i believe it's it well it's a it's talking one thousand and three it's september twenty fifth letter saying that the second test was dated october twelfth that confirmed who the hearing officer would be and that if mr allen needed any help getting records from the city from the hospital of testing lab the city would help him out the obligation was on mr  en for the third test and what he did was send a letter to the city saying that he had talked to lab core and about doing the test and they were agreeable in the city responded the lab corps a courier not a testing laboratory you pick the lab will make sure it all the analytical criteria would have they have in the labs and then we'll see to it that it goes there mr allen did nothing after that point and that was in the fall at the latest was in the fall of two thousand and twelve yonder so he had the opportunity to have that test done he just never has never took me ask you one other thing you said that the second test was itself also permissive but at the top of i guess the last page which seems to be the action item it says confirmed positive test results of a current employee will result in immediate determination whereas an applicant who initially test positive won't be permitted but this sounds like you needed at least on its face you needed to have a confirmed positive test that is the two tests in order to terminate someone how do you read that language i think that the policy says as if you're under the influence of the drugs and how it's define under the influence that you get a positive result then the city will terminate you based on that result and whether the second test i think the second test a permissive but regardless it was done and  also confirmed what what mr mr allen was on the influence of the drugs and the argument that because mr allen and i agree on the city employee scientists policy makes a contract simply doesn't that that mr allen did not have a property interest in his job as has a police officer of the city of jackson as the court well knows that to say operates under the presumption of an at will employment situation and for that to be change there has to be a specific language that that takes it out and says we can only terminate this employee for cause and there's nothing in there in that in that the policy changes i have as far as the the defamation in the stigma plus three i think waive his hearing we're going to proceed with a lawsuit so he waived his right to a name clearing hearing and so that there is punish you there is force a defamation as a public official as a police officer mistrials a public official there's no out no showing of actual malice that is that the state was false or that my your guest entertain serious doubts as to the truthfulness of the lab reports so judge brinn was correct in that and i've covered the issue about the contract there simply was no contract twelve what was response was that's not in the record what was given back to us was that this client this person was not a patient with jackson madison it's our our position that the policy created something created a contract is what we argue but it definitely created something create a procedure in which if a person fails a drug test he was entitled to a process to clear his name and your head with respect to the test your adversary at least says that they said fine you tell us the lab it's a good lab we'll so we'll make sure it gets there is that accurate as i want i don't think at the time you said you were trying to get it from the hospital but presumably they've got control over it and they don't want it else nothing for the thank you counsel that case will be submitted the clerk may call the next case