# FILED

Au gust 27, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk ROY DEAN OGBURN, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9702- CH-00056 VS. ) ) Montgomery Chancery THE GAS AND WATER DEPARTMENT, ) No. 90-66-204 CITY OF CLA RKSVILLE, AN AG ENCY OF ) THE CITY OF CLARKSVILLE, AND THE ) CITY OF CLA RKSVILLE, A MU NICIPAL ) CORPORATION OF THE STATE OF ) TENNESSEE, ) ) Defendants/Ap pellants. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F MON TGOMERY COU NTY AT CLARKSVILLE, TEN NESSEE THE HONORABLE ROBERT W. W EDEMEYER , JUDGE

FOR THE APPELLEE: FOR TH E APPEL LANT: CHARLES R. RAY J. RUSSELL FARRAR 211 Third Avenu e North WILLIAM N. BATES P. O. Box 1982 88 211 Seventh Avenue North Nashvil le, TN 37219-8288 Nashvil le, TN 37219-1823 JOHN L. MI TCHELL JOHN L. SOBIESKI, JR. P. O. Box 367 Univers ity of Tennessee C ollege of Law Clarksv ille, TN 37041- 0367 2224 Dunford Hall Knoxvil le, TN 37996-4070

AFFIR MED I N PART ; REVE RSED I N PART ;

AND REMAN DED

BEN H. CAN TRELL, JUDGE
CONCUR: KOCH, J. CAIN, S.J.- 2 - 

## O P I N I O N

Ameter reader brought suit against the city of Clarks ville and its Gas and W ater Depart ment after he was fired f rom his job. A Montgomery County jury found the defendants liabl e for handicap dis crimination and fordepr iv ing the p lai ntiff of his due process right toa pre-termination hearing, and awarded him $450,000 in compensatory damages. We reverse the j ury verdict on the d ue process cl aim, but affirm the verdict on handicap discri mination, a nd we remand t his case to th e trial court for a new

trial on damag es alone.

I. The Facts
Roy Ogbur n r ead water mete rs for three years as an employee of Clark s ville’s Gas & W ater Department. He had an excellent work record. While reading meters on June 14, 1989 he was attacked by a dog. He jumped over a fence to es cape, and hurt his bac k. When his symptoms did not resolve, he went to an orthopedist, W. Cooper Beazley, M .D. Dr. Beaz ley diag nosed a lumbar st rain, start ed Mr. Ogburn on a course of conservative treatmen t and gave him a su ccession of disability certificates so that his injury would have time to heal.

Mr. Ogburn underwent an MRI on October 9, 1989, which showed a very large rupture of a lumbar disc . Aft er the patient consulted with anoth er orthopedist and underwent an other course of conservati ve treatment, Dr. Beazl ey performed a lumbar laminectomy on January 19 , 1990, and restr icted Mr. Ogburn from perfor ming any work until April 9, 1990 . Prior to that date, Mr. Ogburn underwent a workhardening program at the Clarksville W ork Enhancement Cent er.- 3 - On April 9 he r

eported to Andy

Stewart, his immediate su pervisor , with the intention of returnin g to w ork. Mr. Ogburn showed Mr. Stewart letters from Dr. Beazley and from Larry

R. Snyder

of the W ork Enhancement Cent er. The letters stated that Mr. Ogb urn was “r eady to retur n to work on a graduated basis”; that he would initially be able to re ad about 100 water meters a day; and tha t he would graduallybe able to work his way back up t o a full schedule of reading 400 m eters a day. The sup ervisor

sent Mr. Ogburn home, saying “if you can’t do the whole job it ain ’t no job. ” About thir ty days later, Mr . Ogburn was fired by t he city of C larksvi lle.
Though city employees are normally entitled to appeal a termination to the City Council, Mr. Ogburn was not notified of this right, and he did not receive any hearing. Apparently

the Mayor

was err oneously i nformed thatMr. Ogbur n had quit his job, and he therefore did not send hi m a letter to not ify him of his ap peal rights.

On November 9, 1990, Mr. Ogburn filed a comp laint against the Gas and Water Department of thecity of Clarksville, and against the city itself. He claimed that his due proce ss rights under U.S.C. 42 § 1983 had been violated, and that his termination wasbased on racia l discri mination, as well as on handicap disc rimination in violati on of Tenn. Code Ann. § 8- 50-10 3(a) . Mr. Og burn further cl aimed that he
wasa victi m of retaliatory discharg e because he had filed a worker s’ compensation claim

. H e asked for

reinstatement i n his job, bac k pay, and compensatory and pun itive damages. The complain t was later amended to eliminate th e retalia tory disch arge claim

.

After a one-week

trial , a ju ry of t welve concluded that M r. Ogburn had not i n fact been a victim of racial discrimina tion, but that he had be en wrongfully terminated from his job beca use of a handicap, and wrongfully denied his due process rightsto a hearing. Damages were set at $450,000 plus cost s and attorney fees. This appeal followe d.- 4 - II. Handicap Discrimination

The city argues on appeal that it was entit led to a direc ted verdict

on the handicap discrimin ation and due process claims, and that the tr ial court erred in sending thos e cla ims t o the jury. The appellant also argues that the trial court erred in notsuggestin g a remittitur . We will deal w ith the issue of handicap discr imination first. The relevant portion of Tenn. Code Ann. § 8-50 -103 reads as follows:

Employmentof the h andicapped -- Dis cri mination pr ohibited--Penalty--Complaint.-- (a) There shal l be no discriminat ion in the hiri ng, firingand other terms and conditionsof emp l oyment of the state of Tennessee or any department, agen cy, institution or political subdivis ion of the state, or of any pri vate employer, against any applicant for employment

based solely

upon any physical, mental or vis ual handicap of the applicant, u nl e ss suc h handi cap to some deg ree prevents the applicant from p erforming the dutie s required by the employ ment soug ht or impairs the performance of the work invol ved. . . .

An essential defini tion may befound in our human rig hts statute, Tenn. Code Ann. § 4-21-102(9)(A):

(9)(A) “ Handicap” means, with respect to a pers on: (i) A phy sical or ment al impairment w hich substantially limi ts on e (1) or more of such person’s major life acti vities (ii) A record of havingsuch an impair ment; or (iii) B eing reg arded as havi ng such an i mpairment.

In the present case, Mr. Ogbur n presented sufficien t proofto meet the definition of a handicap. Hi s testimony and that of his w ife showed that he wasa physically

active person who had worked on his family’s farm from an early age. Even while working for the c ity, he continued to work on the farm in partnership with his brothe rs. But aft er he was inj ured, lo wer back pa in preven ted him from si tting on a tractor or a mower

for more than a shor

t period, or from riding h orseback, playing softball, basketba ll, football or golf, or ro mping in the y ard with his children.1 On at l east t wo pri or occasi ons, we hav e held thatwe shoul d look t o federa l author it ies to f lesh out the meaning ofTenn. Code Ann. § 4-21-1 02(9)( Supp . 1996) and Tenn. Code Ann. § 8-50- 103 (1993). H allu m s v . C oc a- C ola Bo ttling Co . C on so l. , 874 S. W .2d 30, 31-32 (Te nn. C t. App . 199 3); C ec il v. Gibson , 820 S. W .2d 361, 364-65 ( Tenn. Ct. App. 1991) . I n it s i nter pret ati ve gui deli nes for t he Am eri cans wit h Disabi li ti es Act, the EEOC has m ade it clear thattemporary

inj uri es are gener all y not ha nd ica ps . T he gu ide line s s tate sp ec ific ally: On the ot her hand, temporary , non- chroni c impair ments of shortdurat ion, wit h li tt le or no long term or pe rm anent im pact, are usuall y not disabi li ti es. Such i mpairments may incl ude, but are not l imit ed to, broken l imbs, sprai ned joi nts, concussio ns, appendi cit is, and influ en za. Sim i l arl y, except i n rare cir cumstances, obesi ty is no t consi dered a disa bling im pairm ent. 29 C.F.R. § 1630.2(j)( Appendix) (1997). Accordi ngly , i n context s simil ar t o the one inv olv ed in thi s case, the fede ral co urts h ave held th at im pairm ents must be continuing in order to be considered either a handicap or a d isab ility

. See , e.g ., Evans v. Cit y of Dal las , 861 F.2d 846 , 852 -53 ( 5th C ir. 1988 ); Kramer v. K & S Assocs. , 942 F. Supp. 444, 446 (E. D. Mo. 1996). The federal court s have al so held thatvari ous ty pes of no n-pe rm ane nt ba ck injuries are n either han dica ps n or dis abilities. S ee , e. g. , Rakestraw v. Carpenter

Co. , 8 98 F. Supp . 3 86, 390 (N. D. Mi ss. 1995 )( hol di ng t hatback i n juri es of l imit ed durat ion do not c ons titute a h and icap ); Paegle v. Dep art ment of I nter ior , 813 F. Sup p. 61, 64 ( D.D. C. 1993)(hol ding thata back injury an d de gen erative disc synd rom e is no t a ha ndic ap); Fuqua v. Unisys Corp. , 716 F. Supp. 1201, 12 05-07 (D. Minn. 1989)(h oldi ng thata str ai ned ba ck ac co m pa nie d b y a ch ro nic back probl em was not a ha ndic ap); Visa rrag a v. G arre tt , No. C-88-2828, 1993 W L 209997, at *5 (N.D. Cal. July

2, 1992) (fi nding thatlower back sprai n-str ain an d a possi ble he rni ated di sc was not a handicap). - 5 -

Althou gh the appellant does not raise thepoint, it could be argued that Mr. O gburn is not handicapped w ithin the meaningof Tenn. Code Ann. § 8-5 0-10 3 because his injury istemporary and will have no permanent impact. 1 Since the is sue has not been raised, we wi ll not addres s it here. B ut the question remains open, and this opinion should not be construed to stand for the propos ition that Tenn. C ode Ann. § 8-50-103 covers persons with temporary, work-related injuries.

The th rust of appellant’ s argument i s rather that the statute d oes no t applybecause Mr. Ogburn’s condition prevented hi m from “ performing the du ties required by the employ ment soughtor impairs the performance of the w ork invol ved.” The appellant contend s that the cit y was under no oblig ation to ac comodate M r. Ogburn by allo wing hi m to wo rk his wa y back to reading 400 meter s a day, or

by assigninghim to any s ort of light duty pending further

improvement of hi s condition.

Mr. Ogburn concedes that even though both theFederal Rehabilitat ion Act and the Americanswith Disabilities Act require employers to furnish reasonable accomodationsto disabled employees, Tenn. Code Ann. § 8-50-103 contains no such complementary provisi on . The record show s that the jur

y was instructed th at the- 6 -

defendant was not obl igated to accommodate the plainti ff by assigni ng him to another task.

Mr. Ogburn’s handicap discr imination cla im thus rests on the contention tha t he was capable of doing “the whole job” nothwithstand ing the letters from Dr. Beazley and Mr. Snyder indicati ng that it w as advisabl e forhim to gradually work his way back int o i t
. We have found evidence in the record f rom which the jury could reasonably infer that Mr . Ogburn was will ing and capa ble of doin g whatever was requi red of hi m.

The testimony of M r. Stewar t, for example, i ndicatesthat on a prev ious occasion when Mr . Ogburn suffered an ankle injury off-the-job, Mr . Stewart allowed him to return to work , an d Mr. Ogbu rn made his ow n accomodation. The Department’s pract ice i s to se nd out i ts mete r read ers i n teamsof tw o, with one worker reading the

gas meter and the other the water meter. Reading water meters
r equiresmore bending an d lifting than does readinggas meters, and on th e earlie r occasion Mr. Ogbur n and his partner agreed between themselves to switch jobs until Mr. Ogbur n’s injury

healed.

The proof also show

s thatafte r being sen t home by Mr . Stewart (but before he was terminated) Mr. Ogburn contacted the city’s insurance coordinator, Ms. Betty Peay, several times, an d told her that he was prep ared to do thewhole job , or any job that the city w

as will ing to assi gn to him. Even after he was terminated, Mr. Ogburn contacted several city officials, incl uding the Mayor , asking t o be reinstated, but to no

ava il. Someide a of t he st reng th of his dete rmination to w ork may be gathered from the fol lowingbits of trial testimony:

Q. Do you have pain? A. Yes sir. Q. Can you work wit h pain?- 7 - A. Yes sir. Q. Will you work w ith pain? A. I will.

. . . Q. . . . you’re asking them, are you not, for your job back? A. Yes, sir. Q. Will you do the job? A. I will do the job, any job that they

have avai lable

. . . Q

. . . do you t hink you could have done t he work, ei ther in that position or another position -- A. Yes, sir. Q. -- if you had been given the chance? A. If I woul d have b een given t he ch ance , I co uld h ave performed.

W hile the facts cited here may no t have been sufficient in t hemselves to prove that Mr. Ogbur n’s handicap w ould nothave impaired his performance, they
were sufficient to enable the trial court to all ow the que stion to be pre sented to the ju ry. We therefore find that the trial court did not e rr in decl ining to g rant the city’ s motion for directed verdict on Mr. Ogburn’s claim of h and icap discr imin atio n, an d we affirm the j ury’s ve rdict beca use we find that the record conta ins material evidence to support it. See Rule 13(d) Tenn. R. App. P.

III. Due Pro cess

The Fourteenth Amendment to the U.S. Constitutio n prohibits t he states from deprivi ng “any person of life, li berty or property w ithout due proces s of law.” 42 U.S.C. § 1983 provi des a private remedy for individuals who have been denied their due process ri ghts. A pr otected property

interest i n employment does not arise under- 8 -

the Constitutio n itself, but st ems from an i nde pendent source, s uch as state l aw or contract. See Board of Regents v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 270 9, 33 L.Ed. 2d 548, 561 (19 72).

Mr. Ogb urn relies on Article IV, Section 8 of the charter of the ci ty o f Clarksville as the source of the interest he is claiming. That provision reads:

“The mayor or

any alderman or

any city official or employee maybe removed from office by the City

Council for an y crime, misc onduc t, unfitness or d isability by voteof the City Council. The proceeding s for such removal shall be upon spe cifi ccharges i n writi ng, whi ch, with a notice stati ng the tim e and place of the hear ing, shall be served upon the person so charged or left at his or he r usual place of residence. The hearing may be public and the accused sha ll have the right to appear and def end . . . .”

The city admi ts that Mr. Ogburn did not receive a hearing beforethe City Council and was thus deprived of thebenefit of a procedure that other cit y employe es enjoyed as a matter of course. Th e city cla ims however, that its failure to grant Mr. Ogbu rn a hea ring wa s the resu lt of a sim ple m ista ke, a nd no t of any i ntentiona l sche me d irect ed to wards him p erso nall y.

More significant ly for its due process ar

gument, the city argues that Mr. Ogburn had no reasonable expectation of continued employ ment, and therefore no constitutional ly-prot ected property interest in his job that required it to affo rd him constitutional due process.

The city points out that Mr. Ogburn was not a tenure d m unicipal employee and wasnot protected by civil service. Since no w ritten contr act or statute granted him the rig ht to be di smissed onl y for caus e, his em ployer cou ld discha rge him under the lo n g-recog nized doctr ine of employment at will, whether for good cause, bad cause, or for no cause a t all, w ithout being gui lty of a leg al wrong . See Harney v. Meadowbrook Nursing Cen ter , 784 S.W.2d 921, 922 (Tenn. 1990); Chism- 9 -

v. Mid-South Milling Co ., 762 S.W.2d 552 (Tenn. 1988); Clanton v. Cain-Sl

oan , 677 S.W.2d 441 (Tenn. 1992).

The appellee has co nceded that he was an emplo yee at will. He nonetheless argues that the creation of the app eals procedure outlined in the city’s charter endowed him w ith du e process rights that the appellant could no t withhold without bei ng subject to suit under th e federal statute. We respectfully disagr ee.
Existingrules or

understanding s as to contin ued employment, which are evidenced by w ritte n poli cies contain ing ma ndator y ter mi nati on hearing pr ocedures maygive r ise to a prot ected property right in thatemployment, w hich cannot be tak en away w ithout due proces s. See Perry v. Si ndermann , 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed. 2d 570 (1972). Howeve r the appellant has directed our attention to several
cases which i ndicate that the p lace men t of perm issive language like “may’ or “can” in such policies pr

eventsa constituti onally-pr otected property interest from ar ising. See Bishop v. Wood

, 426 U.S. 341, 96 S. Ct. 2074, 48 L.Ed 2d 68 4 (1976); Hohmeier v. Leyden Community High School District 212, 954 F.2d 461 (7th Cir. 1992); Piroglu v. Coleman , 25 F.3d 1098 (D.C. Cir. 1994). See als o Kentucky Depar tment of Corrections v. Thom

pson, 490 U.S. 454, 109 S.Ct. 190 4, 104 L.Ed. 2d 506 (19 89).

The Clarksv ille Cit

y Charter

states that

the City Council “may” disch arge an employee for ca use by follow ing a cert ain procedure. It doesnot state that this is the onlymethod that the ci ty may us e to discharg e a city e mployee, or that the causes mentioned in the charter provisi on are the only legitimatereasonsfor which an employee may be terminated. We are thus persua ded thatthe city’ s failure to g rant Mr. Ogburn a hear ing did n o t r i s e t o t h e l e v e l o f a c o n s t i t u t i o n a l v i o l a t i o n . We accordinglyfind that the tri al court err ed in failing to grant thecity a di rected ver dict on Mr. O gburn ’s 42 U .S. § 19 83 cla im, and we rever se the jury

verdict a s to th at cla im.- 10 - IV. Damages

The trial cour

t instructed the jury that if it found the city guilty of racial or handicap discrim ination, Mr. Ogburn should be awarded his actual da mages, in cludin g damages formental anguis h, humiliation and embarrassment, as well as the costsof the lawsuit , includinga reasonable attorney’s fee. The court further instructed the jury thata successful l itigant mig ht also be entit led to back pay, b ut not to front pay or to punitive damages.

The proof at trial showed that as a result of his injury Mr. Ogbur n missed five years of work

and $93,195 in back

pay. The proof furt her showed that the loss of his job had a d evastatingpsycholog ical impact upon hi m, perhaps the more so in that his repeated attem pts to find anothe r job were unsuccessful.

Because he could no longer adequately provid e for his family, Mr. Ogburn becamedepressed, withdrawn and prone to become angry and yell at his children. He stopped going to church, and reduced his involvement in the family farm. After several years, however, his attitude improved and he started to go to church again and to take a g reater interest in life. A fter hearing a ll the proof, the jury awarded Mr. Ogbur n $450,000 in compensatory damages

.

The city argues on appeal t hat the awar d was excessive, and that the trial c o u rt e r r e d i n n o t s u g g e s t i n g a r e m i t t i t u r . We pretermit this question because we feel thatour reversal of the jury verdict on the due process claim req uires us to o rder a new tri al on the question of damages alo ne.

We realiz e that it i s difficult to di stinguish between the psychologi cal injuriesMr. Ogbur n suffered from the loss of his job and those he may

have suffered because a legitimate avenue of appe al from that loss was closed to him. But since- 11 -

the jury did not separate the damages Mr. Ogburn suff ered from each of these claims,
we believe it is necessary that the whole question of damages be revisited in t he cont ext of our f indi ng of the c ity’s n arro wed lia bilit y.

V. Costs an d A

ttorney Fees

The Handicap Di scriminat ion Act, Tenn. Code Ann. § 8-50-103(b) (2) decrees thatthe injured par ty shall have all the rights to which he is entitl ed under the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq, incl uding, if he is the prevai ling part

y, costs and reasonable attorney fees, Tenn. C ode Ann. § 4-21- 306(a)(8). At the conclusion of thi s case, the tr ial court awarded the plaint iff attorney fees and discreti onary costs, in a total amount of almost $79,000.

On appeal, the cit

yargues that since Mr. Ogburn did not prevail on all his claims, he should have at best been awarded only a part of his attorney fees and costs. In particular, the appellant alleges that Mr. Ogburn’s atto rney expended most of his effo rt on t he rac ial di scri minati on cla im th at was re jected by t he jury, so the award of attor ney fees should have been reduced by 50% of more.

We note that an award ofattorney fees is normall y wi thin the discr etion of the tr ial court, and will not be rever sed on appeal absent an abuse of that discretion. Thre adgill v. Threadgill, 740 S.W .2d 419, 426 (Tenn . App. 1987). Howeve r since we have reversed the jury verdict on Mr . Ogbu rn’s due pro cess c laim,
we remand the question ofattorney feesto the trial court, to be r econsidered i n light of the alteration of the positions of the parties res ulting from thi s opinion.

VI.- 12 - The judgment of thetrial court is affirmed in part and rever sed in part. Remand thi s ca use to theCha ncer y C ourt of Montgomery County for a new tri al on the question of damages, and for other proceedings

consistent

with thi s opinion. Tax the costs on appeal equally between the app ellant and the appel lee.

_________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ WILLIAM C. KOCH, JR., J UDGE

_______________________________ WILLIAM B. CAIN, SPECIAL JU DGE