IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 24, 2008 Session

CAPTAIN LOUIS J. GILLESPIE, JR., ET AL. v. CITY OF MEMPHIS

 Appeal from the Chancery Court for Shelby County

No. CH-00-0887-2 Arnold B. Goldin, Chancellor 

No. W2007-01786-COA-R3-CV - Filed June 5, 2008

The charter and code of ordinances of the City of Memphis set out certain specific provisions,

including civil service protections, concerning the organization and operation of the City’s police

department. This appeal arises from a suit brought by several high ranking members of the police

force who allege that the City created a de facto rank in conflict with the City’s charter and

ordinances. The trial court held that the City had impermissibly created a new rank and granted

relief in the form of an injunction and a declaratory judgment. It, however, denied claims for

damages pursuant to 42 U.S.C. § 1983 and an implied right of action under the City’s civil service

rules. We find that the question regarding the appropriateness of the trial court’s awarding injunctive

and declaratory relief is now moot and accordingly vacate that part of its decision. We affirm the

trial court’s decision that monetary damages are not available.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,

Vacated in Part, and Remanded

WALTER C.KURTZ,SR.J., delivered the opinion of the court, in which DAVID R.FARMER andHOLLY

M. KIRBY, JJ., joined. 

Henry Shelton, III, Megan Arthur, and Emily C. Taube, Memphis, Tennessee for the appellants,

Captain Louis J. Gillespie, Jr. et al. 

Louis P. Britt, III and P. Daniel Riederer, Memphis, Tennessee, for the appellee, City of Memphis.

OPINION

This case involves the classification of police officers under the charter and civil service rules

of the City of Memphis (“City”). For many years the City’s police department recognized a position

which was denoted as the “executive major.” In this action, several officers holding the ranks of

captain and major sued the City alleging that this position was not authorized by the applicable law.

The trial court held that the City had in fact created an unauthorized rank and enjoined its use; the

court, however, denied their claims for monetary relief. The officers (“appellants”) have appealed

arguing that they are entitled to money damages; the City argues that the court below erred in finding
-2-

the position of “executive major” to be an unauthorized rank. For the reasons stated herein, we

affirm in part, vacate in part, and remand. 

I

On May 8, 2000, the appellants filed a complaint against the City in the Chancery Court for

Shelby County seeking both a declaratory judgment and a permanent injunction as well as damages.

The complaint was twice amended, and the final amended complaint named as plaintiffs sixty-three

members of the Memphis Police Department holding the rank of captain or major. 

The appellants argued that the City had effectively created a new, de facto rank within the

police force—that of “executive major”—and that the officers holding this rank had certain

supervisory powers, including authority over regular majors and captains. They further contended

that these “executive majors” wore distinctive uniforms, received extra pay, and were provided cityowned automobiles. The appellants took the position that the City’s charter and civil service rules

do not authorize such a rank and that, without this authorization, the rank is impermissible. As a

remedy they sought a declaration that the creation and utilization of the rank was illegal; relatedly,

they also sought an order enjoining its use. They further prayed for damages for the period within

which they were deprived of the “right” to obtain the rank of “executive major” in the force. The

appellants’ claims for monetary relief were premised on two grounds—first, that such relief was

owed as compensation for lost earnings and benefits associated with the position of “executive

major” and, second, that it was available pursuant to 42 U.S.C. § 1983 for due process and equal

protection violations.

The City responded by arguing that extra responsibilities were in fact given to certain majors,

but that this was well within the executive authority possessed by the City’s Director of Police. It

maintained that there were no distinctive uniforms and that these “executive majors” had no

disciplinary authority over other majors. According to the City, the vehicles and extra pay cited by

the appellants were related to the assumption of additional responsibilities—and, moreover, these

responsibilities were often temporary, arising when an “executive major” substituted for an absent

supervisor. Thus, said the City, these additional duties were merely recognized by using the

appellation “executive major,” but this did not run afoul of the ranks designated in the City’s charter

and ordinances because it was not a separate rank.

 

The case came for trial on November 14, 2006. In its ruling, the trial court agreed with the

appellants that the Director of Police had acted “without authority” in creating a de facto rank called

the “executive major.” The chancellor stated orally in part: 

In this case, the Court finds that obviously for a period of a number of years, 25

years, 50 years—obviously, for a long period of time prior to 1998, there were

persons who were acting either as executive Captains or executive Majors and had

administrative responsibilities and were placed in those positions at the discretion of

the Chief or the director now. The Court had no—sees no—that there was apparently

no problem with that. 
 The record is not clear that the court dismissed the appellants’ claims under 42 U.S.C. § 1983. On appeal, 1

however, both sides agree that, by not referencing those claims in its order, the trial court dismissed them by implication.

-3-

Then in March of 1998 at the request of a group of executive Majors, there was a

request that there be a change in pay and for whatever reason—or however this

definition of “responsibilities” occurred in this memo that’s been introduced as

Exhibit 2—at the same time that the executive Majors were given responsibilities as

Duty—as Duty Chief. The—this definition of “responsibilities” as set out in this

memo appear[s] to give supervisory function[s] to the executive Major that—over

other Majors. The effect of that is the creation of a de facto rank by the City without

the authority of the City providing such additional rank. 

The court’s order of December 7, 2006 reads: 

A. By giving certain Majors within the Memphis Police Department supervisory

authority over other Majors and Captains and by compensating those supervisory

Majors with salary and benefits in excess of that received by Captains and Majors,

the Defendant City of Memphis has created the de facto rank of Executive Major and

in doing so has violated the Memphis City Charter and Memphis City Code of

Ordinances. 

1

B. Defendant is liable to Plaintiffs for damages in an amount to be determined at a

later hearing. 

Subsequently, the City moved the trial court to dismiss the appellants’ claims for monetary

relief on the grounds that there is no private cause of action arising under the City’s charter and

ordinances for violations of their civil service provisions. The trial court agreed with theCity on this

point and reversed its prior ruling that the appellants were entitled to damages. Consequently, it

dismissed those claims. The court’s order of July 20, 2007 states: 

This cause came on to be heard on July 9, 2007, upon the Court’s Order as to

Liability and Declaratory Judgment, upon Defendant’s Motion to Dismiss Plaintiffs’

Claim for Monetary Relief, upon Plaintiffs’ Response thereto, upon statements of

counsel for Plaintiffs and Defendants, and upon the entire record herein, based upon

all of which

IT APPEARING TO THE COURT, for the reasons set forth in the Court’s oral

ruling, a copy of which is attached hereto and incorporated herein by reference, that

Defendant’s Motion is well-taken and should be granted, and 

IT FURTHER APPEARING TO THE COURT, that Defendant created a de facto

rank of Executive Major in violation of the City Charter and should be enjoined from

its conduct in violation of the Charter of the City of Memphis, 
-4-

IT IS THEREFORE ORDERED, that:

1. Defendant’s Motion to Dismiss Plaintiffs’ Claims for Monetary Relief is granted.

2. The City of Memphis is enjoined from creating the rank of Executive Major which

violates the requirements in the Charter and Ordinances of the City of Memphis for

the proper creation of civil service ranks in the Memphis Police Department. 

This appeal followed. The appellants seek to overturn the trial court’s ultimate ruling that they are

not entitled to monetary damages pursuant to either 42 U.S.C. § 1983 or a theory of an implied right

of action under the City’s charter and ordinances. The City, of course, embraces the trial court’s

ruling that damages were not an available remedy. But, on its cross-appeal, the City contends that

the trial court erred in finding that it had created an unauthorized, de facto rank.

II

This case came before the court below for trial without a jury. “[R]eview of findings of fact

by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by

a presumption of the correctness of the finding, unless the preponderance of the evidence is

otherwise.” Tenn. R. App. P. 13(d); see Curry v. City of Hohenwald, 223 S.W.3d 289, 291 (Tenn.

Ct. App. 2007). The trial court’s legal conclusions, however, do not enjoy any such presumption

of correctness. See, e.g., Alison Group, Inc. v. Ericson, 181 S.W.3d 670, 674 (Tenn. Ct. App. 2005);

see generally Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). 

The parties present the following issues on appeal before this Court: 

(1) Whether the trial court erred in concluding that the City had created a de facto rank called the

“executive major” within the police department in violation of the City’s charter and code of

ordinances. 

(2) Whether the trial court properly held that the City did not violate the appellants’ rights to due

process and equal protection. 

(3) Whether the trial court was correct in dismissing the appellants’ claims for monetary relief on

the grounds that the City’s charter and ordinances do not provide for a private right of action. 

III

A.

The appellants argued below, and the trial court agreed, that the City created a de facto rank

of “executive major” in violation of its charter and ordinances. According to the City, however, the

title “executive major” was not meant to denote a separate rank within the police department.

Instead, it was an internal designation of those majors to whom the Director of Police assigned

additional duties. 
-5-

The City’s charter refers to the power of the board of commissioners, but since 1966 these

powers have been possessed by the Memphis City Council. As to police services, the charter states:

ARTICLE 11. POLICE DEPARTMENT 

Sec. 68. Duty of board to establish, fix duties, etc. 

It shall be the duty of the board of city commissioners of the City of Memphis to

establish and maintain a police department, prescribe its duties and by ordinance

establish and fix the grades, ranks and classifications of all officers and other

employees of the police department of the City of Memphis. 

Sec. 69. Appointment and salaries of employees. 

The board of commissioners, in addition to all other powers delegated to it, is hereby

authorized and fully empowered, by ordinance, to determine the number of officers

and employees in each grade, rank and classification to be employed by the City of

Memphis in the police department, and to fix the salaries of all of said officers and

employees. 

Sec. 70. Chief of police and chief of detectives; number of other officers and

employees to be determined by board of commissioners. 

There shall be but one chief of police and one chief of detectives, but the board of

commissioners shall be empowered by ordinance to designate the number of

captains, lieutenants, sergeants, detective sergeants, detectives, patrolmen and all

other officers and employees as may be necessary to efficiently conduct the

department. 

The Council, in turn, has adopted the following ordinance: 

2.28.040 Appointment of other officers and employees of division: 

The director of police services is authorized and empowered to appoint one deputy

director, four deputy chiefs and as many chief inspectors, inspectors, captains,

lieutenants, sergeants, detectives and patrol officers, together with such emergency

police, secretaries, clerks, stenographers, operators, janitors, turnkeys, desk

lieutenants, desk sergeants, mechanics, matrons, women police officers and such

other help as may be needed to efficiently police the city and to efficiently conduct

the police division of the city. 

We note that the rank of major—executive or otherwise—is curiously absent from this listing. 

The police services division enjoys civil service protections. See Memphis City Charter §
 This provision has been the subject of prior litigation. See Dunlap v. City of Memphis, No. W2003-02649- 2

COA-R3-CV, 2004 WL 2599752 (Tenn. Ct. App. Nov. 12, 2004). Noncompliance with this provision was also alleged

in the first complaint filed in this case, but it is no longer part of the present lawsuit. 

 Their citation is to Record Volume IV, p. 46, where counsel for the appellants orally stated: “Essentially, the 3

city charter and the city code create five superior police ranks: . . . sergeants, lieutenants, captains, inspectors, and chief

inspectors. Captains, the third rank, are these days known as majors because of the 30-year captain situation[.]” 

-6-

250.1; Memphis City Ordinance § 3.08.020. Specifically, Memphis City Ordinance § 3.08.040

states: 

Examinations for applicants for employment. 

A. All applicants for employment in positions protected by Sections 3.08.020

through 3.08.060 shall be subjected to competitive job-related examinations under

such rules and regulations as may be adopted by the director of personnel. 

B. The examinations to be provided for shall be of a practical nature and relate to

such matters as will fairly test the relative competency of the applicant to discharge

the duties of the particular position. No question in any examination shall relate to

political or religious opinions or affiliations. The examination shall be conducted

and controlled by the director of personnel. 

Furthermore, the City’s charter provides that any police officer hired before 1979 is to be promoted

to captain if he or she serves for thirty years. See Memphis City Charter § 67. 2

The distinction among the ranks in the force is further confused by the fact that, according

to the parties’ briefs, the rank of captain was at some point replaced by the rank of major (a

designation distinct from “executive major”). The parties, however, cite no evidence in the record

to support this. For example, the appellants’ citation to the record is actually to nothing more than

the oral statement of their counsel to the trial court. The City does no better, stating in its brief, 3

without citing to the record at all, that “[i]n 1991 merit captains were renamed commanders, and

later renamed majors.” Whatever the authority for the creation of the rank of major, the parties often

refer to the ranks of major and captain interchangeably, and neither side makes an issue out of the

existence of the rank of major. It is the “executive major” whose legitimacy is in question in this

case. 

 Confronting the propriety of this appeal is the fact that several weeks prior to the November

2006 hearing before the trial court, the Director of Police abolished the position of “executive major”

and replaced it with the position of “administrative major.” This new “administrative major” would

only receive pay outside of that normally received by other members of his rank when performing

duties outside of the rank—for instance, if filling in for an absent inspector. In contrast, the

“executive major” had received additional pay on a regular monthly basis. It is not clear from the

record whether these “administrative majors” are assigned automobiles permanently or only when
-7-

assuming additional duties. The Court takes note of the following passage in the appellants’ brief:

[The Director of Police] later abolished the position of Executive Major in September

2006—only a few weeks before the original setting of this case for trial on October

1, 2006. Therefore, an injunction requiring the Defendant to comply with the Charter

and Code by eliminating the rank of Executive Major is useless, as is a writ of

mandamus ordering the Defendant to promote Appellants to Executive Major, as,

thankfully, the “rank” no longer exists. 

This development raises the question of whether this case is now moot. 

“A moot case is one that has lost its justiciability because it no longer involves a present,

ongoing controversy.” Alliance for Native American Indian Rights in Tennessee, Inc. v. Nicely, 182

S.W.3d 333, 338 (Tenn. Ct. App. 2005) (citations omitted). “A case will be considered moot if it

no longer serves as a means to provide some sort of judicial relief to the prevailing party.” Id.

(citations omitted). Where it appears that the act to be enjoined has ceased to exist, an action for an

injunction becomes moot and will be dismissed. Ford Consumer Fin. Co., Inc. v. Clay, 984 S.W.2d

615, 616-17 (Tenn. Ct. App. 1998); Hogue and Knott v. Kroger Co., 481 S.W.2d 784, 781 (Tenn.

Ct. App. 1971); see generally 5 Am. Jur. 2d Appellate Review §§ 596-601 (2008). The Court

recognizes that there are exceptions to the doctrine of mootness. See Consumer Advocate Div. of

the Office of the Tennessee Attorney Gen. v. Tennessee Regulatory Auth., Nos. M2004-01481-COAR12-CV, M2004-01482-COA-R12-CV, M2004-01485-COA-R12-CV, 2006 WL 249511, at *8-12

(Tenn. Ct. App. Feb. 1, 2006). Even when one of these exceptions applies, however, “[d]ecisions

concerning whether to take up cases that fit into one of the exceptions to the mootness doctrine are

discretionary with the appellate courts.” McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct.

App. 1994) (citing Dockery v. Dockery, 559 S.W.2d 952, 954 (Tenn. Ct. App. 1977)). We conclude

that, even if this case did fit within one these exceptions, it would not be prudent to exercise that

discretion here, especially since the very parties who sought the injunction now tell us that it is

“useless” and the practice they sought to enjoin “no longer exists.” The typical course when

dismissing a case on appeal as moot is “to vacate the judgment and remand the case with directions

that it be dismissed.” Id. (citations omitted). That is the appropriate action in this case as to the trial

court’s injunction and declaratory judgment. 

The fact that these two prospective remedies are moot does not, however, render the entire

case moot. If the appellants are entitled to damages, then it would be of great consequence whether

or not the City’s introduction of the “executive major” was unauthorized. For the reasons set out

below, we have determined that, even if the appellants are correct that the position of “executive

major” is an unauthorized rank, they would not be entitled to monetary damages.

B.

The appellants claim entitlement to money damages under two separate theories. By way

of an introduction, the Court observes a basic incongruousness in the appellants’ positions. First,

they urge that the City’s introduction of the “executive major” was an “illegal” action leading to an
-8-

“unauthorized” rank. Then they go on to assert that they should benefit from what they themselves

describe as actions not allowed by the law. The conflict between the assertion of an illegality on the

one hand and the desire to benefit therefrom on the other necessarily infects any analysis of their

claim to damages. 

1. Damages under 42 U.S.C. § 1983

The first theory by which the appellants seek damages is under 42 U.S.C. § 1983. They

argue that the City created a rank and then deprived them of its benefits when it did not allow them

to be considered for promotion to it pursuant to the rules governing civil service. This, they say,

constitutes a violation of their rights to due process and equal protection. 

The claim for damages on the grounds of an equal protection violation must readily fail. This

case is analogous to the case of Faust v. Metropolitan Gov’t of Nashville & Davidson County, 206

S.W.3d 475 (Tenn. Ct. App. 2006). In that case, civilian employees of the Nashville fire department

were, without legal authority, allowed to participate in the regular pension plan of the regular police

officers and fire fighters. Civilian employees of the Nashville police department then brought suit

contending that, if civilian employees of the fire department were allowed to participate, then they

should be as well. Failing to allow this would, they said, deprive them of equal protection of the

law. Id. at 478. This Court rejected that claim. 

In Faust, this Court articulated two principles applicable to the instant case. The Court

observed that giving the fire department’s civilian employees pension benefits was without legal

authority, was ultra vires, and thus was void. Id. at 485. The Court went on to make a second point:

if benefits are inappropriately given to one group, the remedy is not to compound the illegality by

giving it to others; rather, the remedy is to “remove the favored group from its favored position.”

Id. at 495-96 (citing Heckler v. Matthews, 465 U.S. 728, 739-40, 104 S.Ct. 1387, 1395, 79 L.Ed.2d

646 (1984)).

We find that the appellants’ due process claims are considerably more inscrutable. It appears

to be alleged that the City created the rank of “executive major” and that this action did not comply

with the law. Then, civil service rules were not followed in the selection of persons to fill this illegal

rank, thus depriving the appellants of their right to be considered. Under this theory, the City’s

ordinances somehow created an entitlement to a promotional process and the right to compete for

the rank of “executive major.” When this was not provided, the appellants argue, they were deprived

of due process, and this now entitles them to damages. 

The right to procedural due process in government employment turns upon whether or not

the claimant possesses a property interest in the position. See generally Board of Regents v. Roth,

408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (discussing government employment); 3 Ronald

D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 17.5(d)

(2008). Most such cases involve an allegation of wrongful termination without the requisite due

process. State law determines whether a claimant truly has a property interest or entitlement to the

incidents of government employment meriting due process protections. Obviously a civil service

system and employment within that system create such an interest. Thus, if state law does not
-9-

provide sufficient procedures for termination of a government employee who has a property interest

in his employment, then the due process clause will provide him protection. See Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). 

The protections described above do not typically apply to promotions, as there is usually no

property interest in a promotion. See Haskins v. City of Chattanooga, 877 S.W.2d 267, 269 (Tenn.

Ct. App. 1993); see also Bheemarao v. City of New York, 141 F.Supp.2d 446, 449-50 (S.D.N.Y.

2001); 15A Am. Jur. 2d Civil Service § 57 (2008). Only on rare occasions have the courts extended

due process protections to include the right to a promotion, and even then it has only been

recognized when a government has by its conduct created an implied contract assuring the claimant

that a promotion would be forthcoming. See Paskvan v. City of Cleveland Civil Serv. Comm’n, 946

F.2d 1233, 1235-36 (6th Cir. 1991).

There is nothing in the record to indicate that promotion of the appellants to the position of

“executive major” was an assured right. First, since the appellants contend that the rank was

illegally created, there can be no right to be promoted to an illegal rank. Second, though, there is

no assurance that, even if eligible and considered, the appellants would have in fact been promoted

to the rank. 

Furthermore, the appellants’ due process claims run squarely counter to the holding of this

Court in Haskins v. City of Chattanooga, 877 S.W.2d 267 (Tenn. Ct. App. 1993). In the Haskins

case, police officers alleged that they took on responsibilities outside of their pay grade and that this

entitled them to promotions under the existing city ordinance. They argued that the city’s practice

violated both substantive and procedural due process thereby entitling them to damages pursuant to

42 U.S.C. § 1983. Id. at 267-68. The trial court agreed with the officers and ordered both

promotions and back pay pursuant to section 1983. Id. at 267. On appeal, this Court—while

acknowledging that the city had violated its own ordinance governing promotions—reversed the trial

court’s conclusion that there had been a constitutional violation. We first held that the actions of the

city could not be considered the kind of shocking or egregious abuse that would rise to the level of

a violation of substantive due process. Id. at 270. We then analyzed the claims made by the officers

for procedural due process:

Courts of Appeals throughout the country have held that when government

employees sue their employers under section 1983 for deprivation of property rights,

the claim fails when the rights involve employment benefits, rather than the

employment relation itself, and when a state law remedy for breach of the

employment contract provides the “process due”. See, e.g., Oladeinde v. City of

Birmingham, 963 F.2d 1481 (11th Cir. 1992); Ramsey v. Board of Education of

Whitley County, 844 F.2d 1268 (6th Cir. 1988); Boston Environmental Sanitation

Inspectors Assoc. v. City of Boston, 794 F.2d 12 (1st Cir. 1986); Brown v. Brienen,

722 F.2d 360 (7th Cir. 1983).

Although the existence of overlapping state remedies is not generally relevant to

whether a section 1983 remedy is available, there is an exception for procedural due

process violations. See Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108
 Other like holdings have suggested that the availability of state court actions for injunctions, mandamus, or

4

a declaratory judgment would also suffice. See Shirokey v. Marth, 585 N.E.2d 407, 413-14 (Ohio 1992). 

-10-

L.Ed.2d 100 (1990). The constitutional deprivation isincomplete unless the state has

failed to provide due process. To determine whether a constitutional violation has

occurred, it is necessary to ask what process the state provided, and whether it was

adequate. The Supreme Court in Zinermon observed:

Therefore, to determine whether a constitutional violation has

occurred, it is necessary to ask what process the state provided, and

whether it was constitutionally adequate. This inquiry would

examine the procedural safeguards built into the statutory or

administrative procedure of [e]ffecting the deprivation, and any

remedies for erroneous deprivation provided by statute or tort law.

494 U.S. at 126, 110 S.Ct. at 983. 

Various rationales are advanced for not affording employee benefit cases section

1983 jurisdiction. They include an unwillingness to “trivialize” the Constitution with

what are in essence personnel disputes, Brown, 722 F.2d at 364, and the futility of

providing pre-deprivation hearings that would lead to the same result, when the

plaintiffs claim an absolute entitlement to a benefit which is easily measured in

money or time, Ramsey, 844 F.2d at 1272-74.

Section 16-10 oftheCityCode afforded plaintiffs a “legitimate claim of entitlement”

to promotions and pay increases. However, the plaintiffs’ breach of contract action

adequately remedied the deprivation without the need to resort to federal remedies.

Moreover, although the officers were not required to exhaust administrative remedies

before filing a § 1983 action, Henderson v. Bentley, 500 F.Supp. 62 (E.D.

Tenn.1980) aff’d, 698 F.2d 1219 (6th Cir. 1982), other state law remedies were

available. The State afforded plaintiffs the process which they utilized to remedy 4

the deprivation.

Accordingly, we reverse the judgment of the Trial Court on the basis that plaintiffs

are not entitled to relief under section 1983, and remand with costs of appeal assessed

to appellees.

Haskins, 877 S.W.2d at 270-71 (internal footnote omitted). What makes the holding of Haskins

even more daunting for the appellants here is that the officers in that case were not just denied the

right to be considered for promotion. Rather, their status would have required their promotions.

Still, this Court found no violation of 42 U.S.C. § 1983. 

We conclude that the case before us is controlled by the reasoning and holding articulated

by the Court in Haskins. Therefore, we find that the appellants have no valid claim for a violation
 The City has raised a statute of limitations issue regarding the appellants’ claims under 42 U.S.C. § 1983. 5

Given the decision of the Court above, this issue is pretermitted. 

-11-

of due process, and thus there is no remedy available to them under 42 U.S.C. § 1983.

Furthermore, in cases involving discretionary promotions, damages are not the appropriate

remedy. This is not a case in which the appellants had a right to be promoted. By their own

assertions they sought merely to be considered. The normal remedy for a systemic violation of civil

service promotion procedures is not damages or back pay; instead it is “reconsideration for

appointment or promotion after the defect in the process has been corrected.” Matter of Greco v.

Dep’t of Personnel of City of New York, 640 N.Y.S.2d 509, 510 (N.Y. App. Div. 1996).

Having addressed the lack of damages as a remedy, the Court acknowledges that it has come

full circle—back to the incongruousness of the appellants’ claims. That is, the appellants seek

damages for being denied consideration for promotion to a position which they simultaneously

contend was illegally created. The law simply does not allow for recovery based on such an

irrational and contradictory assertion. 

5

2. Damages Pursuant to a Private Right of Action for Civil Service Violations

The appellants also urge that the civil service provisions of the City’s charter and code of

ordinances create a private right of action under which they are entitled to damages. The Court can

find no better analysis than that provided by U.S. District Court Judge Bernice Donald, who

considered the same issue and wrote the following: 

Under Tennessee law, when a plaintiff asserts an injury that involves an alleged

statutory violation, it is incumbent upon the court to determine whether the statute

in question provides the plaintiff with a cause of action. Petty v. Daimler/Chrysler

Corp., 91 S.W.3d 765, 768 (Tenn. Ct. App. 2002). In other words, the mere fact that

a statute has been allegedly violated and some person harmed, does not automatically

give rise to a private cause of action for monetary relief in favor of that person.

Local 3-689, Oil, Chemical & Atomic Int'l Union v. Martin Marietta Energy Sys., 77

F.3d 131, 136 (6th Cir. 1996). In construing the statutory section at issue, the Court

is “not privileged to create [a private right of action] under the guise of liberal

interpretation of the statute.” Premium Finance Corp. of Am. v. Crump Ins. Serv. of

Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). Rather, it is the legislative body

that has the authority to create legal rights and interests and no right of action can be

brought until there is legislative authority for that right of action. Id.; Hogan v.

McDaniel, 319 S.W.2d 221, 225 (Tenn. 1958). As a result, the burden of proving the

existence of a private right of action lies with the plaintiff. Premium Finance, 978

S.W.2d at 93 (citing Ergon, Inc. v. Amoco Oil Co., 966 F.Supp. 577, 585 (W.D.

Tenn. 1997)).

Relying on Ergon, this Court noted recently that Tennessee courts have utilized the
-12-

standard set forth by the United States Supreme Court to determine whether a statute

implies a private right of action. Matthews v. Storgion, 335 F.Supp.2d 878, 890

(W.D. Tenn. 2004). In that case, the Court observed that “[t]he touchstone of the

analysis is legislative intent: whether the legislature intended in passing the statute

to provide a private right of action.” Id. (quoting Ergon, 966 F.Supp. at 583). The

factors to consider include whether “1) the plaintiff is a member of the class intended

to benefit from the statute, 2) there is any indication of a legislative intent to create

a private right of action under the statute, and 3) a private cause of action is

consistent with the underlying purposes of the legislation.” Id.

Under the above test, the court must first look to the language of the statutory section

for guidance. Id. (citing Ergon, 966 F.Supp. at 584). As stated by the Court in

Ergon, “unless the legislative intent to create a private right of action ‘can be inferred

from the language of the statute, the statutory structure, or some other source, the

essential predicate for implication of a private remedy simply does not exist.’”

Ergon, 966 F.Supp. at 584 (quoting Thompson v. Thompson, 484 U.S. 174, 179,

(1988)).

In the present case, neither the Charter nor the City Ordinance provisions at issue

explicitly provide for a private cause of action for individual monetary relief or

retroactive promotions for an alleged violation of these provisions. There is no

enforcement mechanism specifically set forth in § 250.1 of the Charter or § 9-3 of the

City Ordinances. See Premium Finance, 978 S.W.2d 93 (finding no private right of

action, in part, where the statute at issue imposed a specific, mandatory duty but

provided no enforcement mechanism for the duty).

Additionally, the respective Articles in which these sections exist do not provide for

any method of enforcing the provisions § 250.1 of the Charter or § 9-3 of the City

Ordinances. See Charter, Art. 34; Memphis Code of Ordinances, Art. 9. Finally,

there is nothing explicit or implicit in either provision that indicates any intent to

provide a private right of action for monetary relief or retroactive promotions to

enforce these provisions. Cf. Pratt v. Smart Corp., 968 S.W.2d 868, 872-73 (Tenn.

Ct. App.1997) (finding that the Medical Records Act authorized a private cause of

action by reason of the fact that it allowed for recovery of “actual damages” for

willful or reckless violations). Thus, the language of the Charter and City Ordinance

provisions does not support a private right of action for monetary relief or retroactive

promotions.

Accordingly, although the Court has found Defendant to be in violation of the City

Charter and Ordinances in its administration of the 2000 process, the Court finds that

the remedies Plaintiffs seek are unavailable under the city laws.

Johnson v. City of Memphis, Nos. 00-2608 DP, 04-2017 DP, 04-2013 DA, 2006 WL 3827481, at

*17-18 (W.D. Tenn. Dec. 28, 2006).

We find Judge Donald’s reasoning to be compelling and likewise conclude that the City’s
-13-

charter and ordinances do not provide the appellants with a private right of action for violations of

the City’s civil service provisions. 

IV

For the reasons stated above, the trial court’s injunction and declaratory judgment are vacated

as moot. The trial court’s decision regarding damages is affirmed, and this case is remanded for any

further proceedings as may be necessary. Costs of this appeal are taxed to the appellants and their

surety for which execution may issue if necessary. 

__________________________________ 

WALTER C. KURTZ, SENIOR JUDGE