FILED

March 19, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

AMANDA LINN CASHION, )

)

Plaintiff/Appellant, )

)

)

VS. )

) Davidson Chancery

) No. 94-3739-II

EVELYN C. ROBERTSON, JR., in )

his capacity as Commissioner, ) Appeal No.

Tennessee Dept. of Mental Health ) 01A01-9506-CH-00257

and Mental Retardation, and )

DON G. HOLT, in his capacity as )

Commissioner, Tennessee Dept. of )

Personnel, )

)

Defendants/Appellees. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE C. ALLEN HIGH, CHANCELLOR

For the Plaintiff/Appellant: For the Defendants/Appellees:

Amanda Linn Cashion, Pro Se John Knox Walkup

Memphis, Tennessee AttorneyGeneral and Reporter

Sherry E. Martin

Assistant Attorney General

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves the Department of Mental Health and Mental

Retardation’s dismissal of a probationary staff attorney because she was “not

fitting in.” After unsuccessfully seeking a declaratory order from her former

department, the Civil Service Commission, and the Department of Personnel, the

staff attorney filed an action in the Chancery Court for Davidson County

challenging her termination and seeking back pay, expungement of her

employment records, and attorney’s fees. The trial court granted the motion to

dismiss, and the staff attorney has perfected this appeal. While the trial court

properly held that it lacked subject matter jurisdiction over the claims for

monetary relief, it erred by holding that it lacked subject matter jurisdiction over

the claim for declaratory relief. We have determined, however, that the complaint

fails to state a claim for a declaratory relief under Tenn. Code Ann. § 4-5-224

(1991). 

I.

Amanda Linn Cashion began working for the Department of Mental Health

and Mental Retardation (“DMHMR”) on July 25, 1994. She was classified as an

“Attorney III” and was assigned to the Arlington Developmental Center in Shelby

County. The Arlington Developmental Center was at that time the subject of

federal litigation commenced by the United States Department of Justice

concerning DMHMR’s failure to provide its residents with a safe environment.

On her second day at work, Joseph Boyd, the Department’s chief counsel,

invited Ms. Cashion to accompany him to a conference at the University of

Tennessee Medical School in Memphis. While traveling to the conference site,

Mr. Boyd explained the pending federal lawsuit to Ms. Cashion and, according to

her, made numerous derogatory remarks about her immediate supervisor at

Arlington and about an assistant state attorney general representing the DMHMR

in the federal litigation. Ms. Cashion promptly shared Mr. Boyd’s remarks with

her immediate supervisor.
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Several days later, Ms. Cashion and the other DMHMR staff attorneys met

in Nashville to discuss the Department’s response to the expected federal

investigations of the Department’s other developmental centers. During this

meeting, Ms. Cashion was extremely critical of the DMHMR’s handling of the

federal investigation and of its standards and procedures at Arlington. She

returned to Memphis following the meeting but did not report for work at

Arlington for several days. She decided to work at home because the Department

had not provided her with “proper office space” at Arlington and because she

believed that her work was on hold while the DMHMR decided how to respond

to several matters in the pending federal litigation. 

Ms. Cashion met with Stanley Lipford, Arlington’s interim superintendent,

and Larry Durbin, one of the DMHMR’s assistant commissioners, when she

returned to Arlington on August 22, 1994. Dr. Durbin informed her that the

Commissioner of the DMHMR had decided to terminate her because her

comments at the meeting in Nashville indicated that she was not “fitting in.”

When Ms. Cashion vehemently protested her dismissal, Dr. Durbin and Mr.

Lipford instructed her to clear out her desk, return her keys, and leave the

Arlington premises by the end of the day.

Ms. Cashion received a certified letter from Mr. Lipford on August 27,

1994, stating that she had been placed on “administrative leave” on August 22,

1994 and that her termination from the DMHMR was effective as of August 25,

1994. The letter did not recite the reasons for her termination but rather simply

referred to her discussion with Dr. Durbin. Ms. Cashion later received a

separation notice submitted by the DMHMR to the Department of Employment

Security stating that she had been employed “from 7/25/94 to 8/26/94.” She also

received a copy of a letter from the DMHMR to the Commissioner of Personnel

stating that she had been terminated on August 25, 1994, because her “conduct

in meetings and in other personal contact with DMHMR personnel was such as

to lead us to conclude that she would not become an effective member of

DMHMR’s management and service team.” The letter added that the “quality of

the performance of her professional duties played no part in this decision.”
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On September 2, 1994, Ms. Cashion submitted a petition for a declaratory

order under Tenn. Code Ann. § 4-5-223 (1991) to the DMHMR and the Civil

Service Commission seeking a declaration of her rights as a probationary

employee under Tenn. Code Ann. § 8-30-312 (1993). The Commmissioner of

Personnel, acting as the secretary to the Civil Service Commission, responded that

the Commission did not have authority to hear Ms. Cashion’s “appeal” because

she was still a probationary employee who had not gained career status. The

DMHMR also declined to make a declaratory ruling on the ground that the

petition was within the jurisdiction of the Commissioner of Personnel.

Faced with these refusals to respond to her petitions, Ms. Cashion filed a

petition in the Chancery Court for Davidson County seeking a declaratory

judgment pursuant to Tenn. Code Ann. § 4-5-224 concerning her rights as a

probationary employee. She also sought back pay, expungement of all entries in

her employment records concerning the termination, and attorney’s fees and court

costs. The Commissioners of Personnel and the DMHMR filed a motion to

dismiss the complaint asserting that the trial court lacked subject matter

jurisdiction, that the doctrine of sovereign immunity barred Ms. Cashion’s claims

for monetary relief, and that the complaint failed to state a claim upon which relief

could be granted. On February 16, 1995, the trial court entered an order

dismissing Ms. Cashion’s complaint. Ms. Cashion has perfected this appeal. 

II.

MOOTNESS

The defendant commissioners assert as a preliminary matter that Ms.

Cashion’s claims are moot because she has already been terminated. They argue

that Tenn. Code Ann. § 4-5-224 contemplates a continuing statutory violation on

which judicial declaration might have some effect. While we agree with this

statement in principle, we do not find that Ms. Cashion’s claims are moot under

the facts of this case.

The courts should decline to provide judicial relief in cases that do not

involve a genuine and existing controversy requiring the adjudication of present
1The Civil Service Commission is the only body vested with the authority to grant

monetary relief to wrongfully terminated state employees. See Tenn. Code Ann. § 8-30-328(e),

(f) (1993) (authorizing the Commission to award back pay and benefits and attorney’s fees).

However, only “regular employees” are entitled to this relief. A “regular employee” is one who

(continued...)

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rights. State ex rel. Lewis v. State, 208 Tenn. 534, 537, 347 S.W.2d 47, 48 (1961);

Dockery v. Dockery, 559 S.W.2d 952, 954 (Tenn. Ct. App. 1977). Cases must

remain justiciable throughout the entire course of the litigation, and the concept

of mootness involves circumstances that render a case no longer justiciable.

McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). A moot case

is one that has lost its character as a present, live controversy. McCanless v.

Klein, 182 Tenn. 631, 637, 188 S.W.2d 745, 747 (1945). A case will generally be

considered to be moot if it no longer serves as a means to provide some sort of

relief to the prevailing party. McIntyre v. Traughber, 884 S.W.2d at 137;

Massengill v. Massengill, 36 Tenn. Ap. 385, 388-89, 255 S.W.2d 1018, 1019

(1952).

Even though Ms. Cashion has already been terminated, we do not find that

she is seeking relief that would be beyond the courts’ power to grant in an

appropriate case. Even if she is unsuccessful in convincing the courts to set aside

her termination or to grant her monetary relief, she may be entitled to judicial

relief with regard to the other rights she might have under Tenn. Code Ann. § 8-

30-312. Accordingly, we decline to find that this appeal is moot.

III.

THE CLAIMS FOR MONETARY RELIEF

We need not tarry long with Ms. Cashion’s claims for monetary relief.

Because of the sovereign immunity conferred on the State by Tenn. Const. art. I,

§ 17 and Tenn. Code Ann. § 20-13-102(a) (1994), Ms. Cashion can seek monetary

relief in the courts only if the General Assembly has enacted a statute specifically

permitting claims for monetary relief for wrongful discharge from state

employment. Ms. Cashion has not cited and our research has failed to uncover a

statute permitting discharged state employees to file suit against the state for

monetary damages.1 Accordingly, we find that the trial court correctly determined
1

(...continued)

holds a regular civil service position and who has completed his or her initial probationary

period. Tenn. Code Ann. § 8-30-101(a)(20) (Supp. 1996); Tenn. Code Ann. § 8-30-328(a)(2).

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that it lacked subject matter jurisdiction over Ms. Cashion’s claims for monetary

relief. See Stokes v. University of Tennessee, 737 S.W.2d 545, 546 (Tenn. Ct.

App. 1987) (holding that Tenn. Const. art. I, § 17 bars a discharged state

university employee’s suit for reinstatement and back pay).

IV. 

THE DECLARATORY JUDGMENT CLAIM

Based on the language of the trial court’s final order, we must presume that

the trial court determined that it lacked subject matter jurisdiction over Ms.

Cashion’s claim for a declaratory judgment and that Ms. Cashion’s petition failed

to state a claim under Tenn. Code Ann. § 4-5-224. We find that the trial court

erred with regard to its subject matter jurisdiction but that Ms. Cashion’s

complaint fails to state a claim upon which relief can be granted.

A.

THE TRIAL COURT’S SUBJECT MATTER JURISDICTION

The concept of subject matter jurisdiction relates to a court’s lawful

authority to adjudicate a controversy brought before it. Turpin v. Conner Bros.

Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988); Standard Sur. & Casualty

Co. v. Sloan, 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943). It hinges upon the

nature of the cause of action and the relief sought. Landers v. Jones, 872 S.W.2d

674, 675 (Tenn. 1994). Subject matter jurisdiction can only be conferred on a

court by the Constitution of Tennessee or by legislative act. Kane v. Kane, 547

S.W.2d 559, 560 (Tenn. 1977); Brown v. Brown, 198 Tenn. 600, 618-19, 281

S.W.2d 492, 501 (1955).

Tenn. Code Ann. § 4-5-224(a) empowers the Chancery Court of Davidson

County to hear and decide declaratory judgment actions concerning the “legal

validity or applicability of a statute, rule or order of an agency to specified
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circumstances.” The only statutory prerequisites for bringing a declaratory

judgment action under Tenn. Code Ann. § 4-5-224 are that the complainant must

first have requested the agency for a declaratory order pursuant to Tenn. Code

Ann. § 4-5-223 (1991) and that the agency must have declined to issue a

declaratory order. Tenn. Code Ann. § 4-5-224(b).

The trial court unquestionably had subject matter jurisdiction over

declaratory judgment actions brought in accordance with Tenn. Code Ann. § 4-5-

224. The only question remaining is whether Ms. Cashion demonstrated that she

satisfied the statutory requirements for bringing such an action. Her petition

demonstrates that she first requested the DMHMR, the Civil Service Commission,

and the Department of Personnel to render a declaratory order concerning her

rights under Tenn. Code Ann. § 8-30-312 and that all three agencies declined to

render a declaratory order. Accordingly, the trial court erred when it concluded

that it lacked subject matter jurisdiction to consider Ms. Cashion’s claim for

declaratory relief.

B.

THE ADEQUACY OF MS. CASHION’S CLAIM

Finding that the trial court had suject matter jurisdiction to hear Ms.

Cashion’s claim does not necessarily entitle her to relief. Her complaint could

still fail to state a claim upon which relief can be granted. Accordingly, we must

examine her petition to determine whether it alleges any state of facts that would

entitle Ms. Cashion to relief. Pemberton v. American Distilled Spirits Co., 664

S.W.2d 690, 691 (Tenn. 1984); Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198

(Tenn. Ct. App. 1994). In doing so, we must take all well-pleaded allegations in

her petition as true, and we must also construe the petition liberally in Ms.

Cashion’s favor. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938

(Tenn. 1994); Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992).

Tenn. Code Ann. § 4-5-224 provides that the courts may grant declaratory

relief when “the statute, rule or order, or its threatened application, interferes with

or impairs, or threatens to interfere with or impair, the legal rights or privileges of
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the complainant.” Thus, our inquiry must focus on whether the manner in which

the DMHMR, the Civil Service Commission, or the Department of Personnel

interpreted and applied Tenn. Code Ann. § 8-30-312 interfered with or impaired

any of Ms. Cashion’s legal rights or privileges.

Probationary employees in civil service positions enjoy far fewer rights and

privileges than their counterparts who have successfully completed their

probationary period. They are, however, not without three minimal rights under

Tenn. Code Ann. § 8-30-312. First, Tenn. Code Ann. § 8-30-312(a) permits a

probationary employee to work for at least one month before being terminated

unless the appointment was the “result of fraud or error.” Tenn. Code Ann. § 8-

30-312(b). The period provides employees with time to adjust to the position and

to demonstrate their ability to perform the required work. See Tenn. Comp. R. &

Regs. r. 1120-2-.11(1) (1988) (defining the purposes of the probationary period).

Second, Tenn. Code Ann. § 8-30-312(a) specifies that probationary employees

may be terminated either because they are unable or unwilling to perform their

duties satisfactorily or because their habits and dependability do not merit their

continued employment. Third, Tenn. Code Ann. § 8-30-212(a) requires that the

employee be informed of the termination and the reasons therefor.

PREMATURE TERMINATION

Ms. Cashion asserts that the DMHMR violated Tenn. Code Ann. § 8-30-

312(a) by deciding to terminate her and by informing her of its decision during the

first month of her employment. She interprets Tenn. Code Ann. § 8-30-312(a) to

require an appointing authority to put off even considering whether a probationary

employee should be retained for at least one month after employment. We do not

construe Tenn. Code Ann. § 8-30-312(a) so rigidly. Public employers, like their

counterparts in the private sector, must be able to continuously monitor an

evaluate the performance of their employees. An employee’s conduct during the

first month of his or her probationary period may provide an appointing authority

with sufficient grounds for termination, and when that circumstance arises, all that

Tenn. Code Ann. § 8-30-312(a) requires is that the termination take effect one

month after the employee’s initial hiring date. 
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Ms. Cashion’s superiors notified her of her termination before she had been

employed for the DMHMR for one month, but her termination took effect on her

one-month anniversary date. Even though Ms. Cashion was placed on

administrative leave on August 22, 1994, she was paid for a full month of work.

Accordingly, the timing of Ms. Cashion’s termination did not violate Tenn. Code

Ann. § 8-30-312(a).

THE STATEMENT OF THE REASONS FOR TERMINATION

Ms. Cashion also asserts that the DMHMR violated Tenn. Code Ann. § 8-

30-312(a) by failing to provide her with an adequate statement of the reasons for

her termination. While she focuses on on Mr. Lipford’s August 25, 1994 letter,

she overlooks the Commissioner of the DMHMR’s September 20, 1994 letter to

the Commissioner of Personnel.

Tenn. Code Ann. § 8-30-212(a) requires an appointing authority to “report

to the commissioner [of personnel] and to the employee removed such action and

the reasons therefor.” While the better practice is to include the statement of

reasons for the termination in the employee’s termination letter, an appointing

authority technically complies with Tenn. Code Ann. § 8-30-312(a) by stating its

reasons in the notice it sends to the Commissioner of Personnel and the employee.

Mr. Lipford’s August 25, 1994 letter does not provide adequate notice of the

reasons for terminating Ms. Cashion because it refers only to her “discussion with

Dr. Larry Durbin.” However, the September 20, 1994 letter to the Commissioner

of Personnel contains a statement of the reasons for Ms. Cashion’s termination.

Tenn. Code Ann. § 4-5-224 only empowers the courts to determine whether the

appointing authority informed a probationary employee of its reasons for

terminating the employee; it does not empower the courts to second-guess the

appointing authority’s decision. Since the September 20, 1994 letter contains a

statement of the DMHMR’s reasons for terminating Ms. Cashion, it complies with

Tenn. Code Ann. § 8-30-312(a). 

V. 
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We affirm the judgment and remand the case to the trial court for whatever

further proceedings may be required. We also tax the costs of this appeal to

Amanda Linn Cashion and her surety for which execution, if necessary, may

issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

HENRY F. TODD, P.J., M.S. 

________________________________

BEN H. CANTRELL, JUDGE 
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