# FILED

March 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

AMANDA LINN CASHION, ) ) Plaintiff /Appella nt, )

) ) VS. ) ) Davidson Chancery ) No. 94-3739-II EVELYN C. ROBER

TSON , JR., in ) his capacity as Commissioner, ) Appeal N o. Tennesse e Dept. of Mental Health ) 01A01-9506- CH-00257 and Mental

Retarda tion, and ) DON G. HO LT, in his capacity as ) Commissione

r, Tennessee D ept. of ) Personnel , ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE C. ALLEN HIGH, CHANCELLOR

For the Plaint iff/Appe llant : Fo r the Defenda nts/A ppellees : Amanda Linn Cashion, Pro Se John Knox Wa lkup Memphis, Tennessee Attorney Gen eral and Reporte r Sherry E . Martin Assistant Attorney General



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal i nvol ves the Department of Mental Health and Mental Retardation’s dismissal of a pro bation ary staff attorney b ecause she

was “not fitting in.” After unsuccessfully seeking a d eclaratory order from her former department, the Civil Ser

vice Comm

ission, and

the Depa rtment of Personne l, the
s taff attorney f

iled an ac tion in the C hancery C ourt for D avidson Count y challengin g her term

inationand see king back pay, expungement of her employment

records, and att orney’s fees. T he trial c ourt grant

ed the moti on to dismiss, and the staff attorney has perfected this appeal. While the trial court properlyheld that it lack ed subject ma tter juri sdiction ove

r the cla ims 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 c omplaint fails to sta te a clai m for a de clarator y relief under Te nn. Code A

nn. § 4-5- 224 (1991).

I.

Amanda Linn Cashion began working f or the Departm

ent of Mental Hea

lth and Mental Retar dation (“DM HMR”) on Jul y 25, 1994

. She was classified as an “Attorney III” an d was assi gned to the A rlington D evelopmental Cente r in Shelby County. The Arlington Developmental Ce nter w as at that time the su bject of federal litigation commenced by the United States Department of Justice concernin g DMHMR ’s failur e to provide

its residents with a safe environment.

On her second day a

t work, Joseph Boyd, the Depa rtment’s chief cou nsel, invited Ms. Cashion to acco mpany him toa confer ence at t he Univer sity of Tenness ee M edical School in Memphis. While traveling to the conference site, Mr. Boyd explai ned the pend ing feder al lawsui tto Ms. Cashion and, a ccording to her, made nume

rous deroga

tory rema

rks about he

r im medi ate supervisor at Arlington and about an assistant state attorney general representing the DMHMR in the federal l itigatio n. Ms. Cashion promptly shared Mr. Boyd’s re marks wi th her immediate supervisor.-3- Several days later, Ms. Cashion and the other DMHMR staff attorneys met in Nashville

to discuss th e Depar

tment’s r esponse to th e expe cted federal investigati ons of the De partment ’s othe r developm ental cen ters. D uring this meet ing, Ms. Cashion was extremely critical o f the DMH MR’s handl ing of th e federal investigat

ion and of it s standards and proce du res a t Arlingto n. She returned to Memphi s followi ng the m eeting but did not report for work at Arlington for several days. S he decide d to work a t home bec ause the D epartme nt had not provided her with “proper office space” at Arlin gton and bec ause she believed that her work

was on hold

while the DMHMR

decided how

to respond to several matters in t he pendin g federal li tigatio n.

Ms. Cashion

met with Stanley L

ipford, A rlington’s interim su

perintendent, and Larry D urbin, one

of the DM HMR’s a ss i stant comm issioners, when she returned to Arlingt

on on A ugust 22, 1994 . Dr. Durbin inf ormed her

that the Commissionerof th e DM HMR had decided to terminate her because her comments a t the meet

ing in Nashville indic ated that s he was not “fitting i n. ” When Ms. Cash ion vehemently protested her dismissal, Dr. Durbin and Mr. Lipford instruct ed her to c lear out he r desk, r eturn her keys, and leave the Arlington premises by the end of the day.

Ms. Cashion re ceived a c ertifie d lette r from M r. Lipf ord on Augus t 27, 1994, stating tha

t she had be en placed

on “adminis t rati ve leave” on August 22, 1994 and that

her term ination fr omthe DMHMR was effective as of August 2 5, 1994. The lett

er did not r

ecite the reasons f or her te rmination bu t rat her simply referr ed to her disc ussion with Dr. Dur bin. Ms. Cashion la

ter rec eiv ed a separati on noti ce submitted by the DMHMR to the D epartme nt of Empl oyment Security stating tha

t she had be en employe d “from 7/ 25/94 to 8/26/94 .” She a

lso received a copy of aletter f rom the D MHMR to the Commissioner of Personnel stating thatshe had been terminated on August 25, 1994, because her “conduct in meetings a

nd in other p ersonal c onta c t with DMHMR personnel was such as to lead us to conclude that she would not become an effecti ve member of DMHMR’s management andservice team.” The letter added that the “quali ty of the perform ance of her pr ofession al duties played no part in th is decisi on.”-4- On Septembe

r 2, 1994, Ms. Cashion subm itted a pet ition for a declaratory order under Tenn. Code A

nn. § 4-5- 223 (199 1) to the DMHMR and the Civil Service C ommission seeking a declaration of her rights as a probationary employee under Tenn. Code A nn. § 8-30- 312 (1993). The Comm missioner of Personnel , acting as t

he secretary to the Civil Service Commission, respondedthat the Commission

did not have

aut hority to he ar Ms. C ashion’s “a ppeal” bec ause she was stil l a probati onary empl oyee who ha d not gained c areer s tatus. T he DMHMR also declined to make a declaratory ruli ng on the grou nd that the petition w as within t

he jurisdic tion of the C ommissioner of Personnel.

Faced with these

refusals to respond to her petit ions, Ms. Cashion f

iled a petition in the Ch ancery Court for Davidson County seeking a declaratory judgment pursua nt to Tenn. Code Ann. § 4-5-224 c oncerning h er rights a s 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 C ommissi oners of P ersonnel a nd the DMH

MR filed a

motion to dismiss the comp laint as serting that the trial court lacked subject matter jurisdicti on, that the doc trine of so vereign immunity barred Ms. Cashion’s claims for monetary relief, and that the complaint failed to state a claim upon which relief couldbe granted. On Februar y 16, 1 995, the trial court entered an order dismiss ing Ms. Cash ion’s com plaint. Ms . Cashion h as perfected this app eal.

II. M OOTNESS

The defendant commi ssioner s assert a s a prelim inary mat

ter that M s. Cashion’s claims ar

e moot because she has alr

eady been t

erminate d. They a

rgue thatTenn. C ode Ann. § 4-5-224 contemplates a continuingstatutory v iolation on which judicial de claratio n might have some eff ect. W hile we a gree wit h this statement in principle, we do not find that Ms. Cashion’s claims are moot under the facts of this case.

The courts shoul d decl ine to provi de judicia l relief in cases t

hat do not involve a genuine a

nd existing controver sy requiri ng the adjudi cation of p resent1 The Civil Service Commission is the o nly body ve sted with the authority to grant

monetary relief t

o 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...) -5- rights. State ex rel. Lewis v. State, 208 Tenn. 534, 537, 3 47 S.W. 2d 47, 48 (1961); Dockery v. Dockery, 559 S.W. 2d 952, 954 ( Tenn. C t. App. 1977). Ca ses must remain justiciable throughout the entire course of the litigat

ion, and the conce

pt of mo otness involves circumstances that render a case no longer justiciable. McIntyr e v. Traugh ber, 884 S.W.2d 13 4, 137 (Tenn . Ct. App. 1994 ). A moot ca se is one that has lost its character as a pre sent, live controve rsy. McCanless v. Klein, 182 Tenn. 631, 637, 188 S.W.2d 745, 747 (1945). A case w ill genera lly be consi dered t o be moot if

it no longer

serves as a means toprovide som e sort of relief to the prev ailing p arty. McI nt yre v. T raughber, 884 S.W. 2d at 137; Massengill

v. Masse ngill, 36 Tenn. Ap. 385, 388-89, 255 S.W.2 d 1018, 10 19 (1952).

Even though Ms. Cashion has already been terminat ed, we do not find that she is seeking relief

tha t would be beyond the courts’ power to grant in an appropria te case. E ven if she i s unsuccess ful inconvincing t he courts to set aside her termination or to grant her monetary relief, she may be entitled to judicial relief with rega

rd to the other rights s he might hav e under Tenn. Code Ann. § 8- 30-312. A ccordingly , we de cline to fi nd that this a ppeal is mo ot .

III. T HE C LAIMS FOR M ONETARY R ELIEF

We need not ta

rry long w ith Ms. Ca shion’s cla ims 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), M s. Cashio n can seek monetary relief in the cour

ts only if the General Assembly has enacteda statute specific ally permittin g claims f

or monetar

y r eli ef for wrongful disc harge fr om state employment

. Ms. Cash

ion has not c ited and our

research has failed to uncover a statutepermittin g discharge d st ate emplo yees to fil e suit agai nst the stat e for monetary damages. 1 Accordi ngly, we find that the trial court correctly determined1 (...continued)

holds a regular civil service position and who has compl ete d his or her initial probationary period. Tenn. Code Ann. § 8-30-101(a)(20) (Supp. 1996); Tenn. Code Ann. § 8-30-328(a)(2). -6- thatit lacked subjectmatter jurisdiction over Ms. Cashion’s claims for monetary relief. See St okes v. University of Tennessee, 737 S.W. 2d 545, 546 ( Tenn. C t. App. 1987) (ho lding that Tenn . Const. art. I, § 17 bars a discharge d state university employee’s suit for reinstatement and back pay).

IV. T HE D ECLARATORY J UDGMENT C LAIM

Based on the language of

the trial court’s final order, we must presume that the trial cour

t determi ned that it l acked subje ct matter jur isdicti on over Ms. Cashion’s claim for a declaratory judgment and that Ms. Cashion’s petition failed to state a claim under

T enn. Code Ann. § 4-5-224. We find that the trial court erredwith rega

rd to its subj ect matte

r jurisdic tion but

that Ms. Cashion’s complaint f

ails to stat

e a claim upon which r

elief ca n be grante d.

A. T HE T RIAL C OURT ’ S S UBJECT M ATTER J URISDICTION

The concept of

subject ma

tter juri sdiction re lates to a court’ s la wful authorityto adjud icate a cont roversy b rought b efore it. Turpin v. Conner Br os. 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 up on the nature of the ca

use of act ion and the relief so ught. Landers v. Jones, 872 S.W. 2d 674, 675 (Tenn. 1994). Subject matter jurisdiction can only be confe rred on a courtby the Consti tution of Tenn essee or by legislat ive act. Kane v. Kane, 547 S.W.2 d 559, 560 (T enn . 1977); Brown v. Brown, 198 Tenn. 600, 618-19 , 281 S.W.2d 492, 501 (1955).

Tenn. Code Ann. § 4-5-224(a ) empowe rs theChancer

y Court of D avidson County to hear a

nd decide de clarator

y judgment a

ctions conc erning the

“lega l validity or applica

bility of a statute, rule or or de r of an agency to specified-7-

circumstan c es.” The only statutory prerequisites for bringing a declaratory judgment action unde

r Tenn. Code Ann. § 4-5-224 a re that the complaina

nt must first have requ ested the a

gency for a declaratory orde

r pursuant to Tenn. Code Ann. § 4-5-223 ( 19 91) and that the agency must have declined to issue a declaratory order. Tenn. Code Ann. § 4-5-224(b).

The trial cour

t unqu estionably had subject matter jurisdiction over declaratory judgment ac tions brought in accord ance wit h Tenn. C ode Ann. § 4-5- 224. The only qu estion rem aining is whether Ms. Cashion demonstra

ted that she satisfied th e statu tory requirements f or bringing s uch an act

ion. Her petition demonstrates that she f

irst reque sted the D MHMR, the Civil Service Commission , and the Department of Personnel to render a dec laratory order concerning her rights under

Tenn. C ode Ann. § 8-30-312 a nd that all t

hree age ncies dec lined to render a declaratory order. Accordingly, the trial court erred when it concluded thatit lacked subject matter jurisdiction to co nside r Ms. Ca shion’s cla im for declaratory relief.

B.

T HE A DEQUACY OF M S . C ASHION ’ S C LAIM
Finding that the tr

ial court h ad suject ma

tter juri sdiction to he ar Ms. Cashion’s claim does not necess arily enti tle her to re lief. H er complai nt could still fail to sta

te a claim upon which relief can be gra

nted. Ac cordingly, we must examine her petition to determine

whether it allege s any state of f

acts that w ould entitleMs. Cashion to re lief. Pem berton v. Amer ican Disti lled Spi rits Co., 664 S.W.2 d 690, 691 (T enn. 1984) ; Rampy v . ICI A crylics, Inc., 898 S.W. 2d 196, 198 (Tenn. Ct. App. 1994). In doing so, we must t ake all w ell-plea ded allega

tions in her petition as true, a

nd w e must also construe t he petition liberally

in Ms. Cas hion’s favor. Cook v. Spin naker’s o f Rivergat e, Inc., 878 S.W.2d 93 4, 93 8 (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 applicati on, interfe

res with
or impairs, or threatens to interferewith or impair, the legal rights or pr ivileges of-8-

the complainant.” Thus, our inquiry must focus on whether the manner in which the DMHMR, the Civi l Service Com mission , o r the Dep artment of Personnel interpreted and applie d Tenn. C ode Ann. § 8-30-312 interfered with or impaired any of Ms. Cashion’s legal righ ts or privil eges.
Probationary employees in civil se rvice posi tions enjoy f

ar few er rights a

nd privileges t ha n their cou nterpart s who have successf ully completed their probationary period. They are, however, not w ithout three minimal rights under Tenn. Code Ann. § 8-30-312. First, Tenn. Code Ann. § 8-30-312(a) permit s a probat ionary employee to work for at least one month before being termi nate d unless the appointment was the “res ult of fra ud or error.” Tenn. Code A nn. § 8- 30-312(b). The period provides employees with time to adjust to t

he position and to demonstra

te their a bility to per

form the required wo rk. See Tenn. C omp. R. & Regs. r. 1120-2-.1 1(1) (1988) (defining the purposes of the probationary period). Sec ond, Tenn. C ode Ann. § 8-30-312( a) specif ies that pr

obationary

employ ee s may be terminat ed either be cause they are unab le or unwi lling to per form their duties satisfac torily or be cause the ir habits a nd depe ndabi lity do not me rit their continued employment. Thir d, Tenn. Code Ann. § 8-30-212( a) requir es that the employee be informed of the termination and the reasons therefor.

P REMATURE T ERMINATION

Ms. Cashion asser t s that the D MHMR viol ated Tenn. Code Ann. § 8-30- 312(a) by deciding to terminate her and by informing her of its dec ision during the first month of h er employm ent. She interprets Tenn. Code Ann. § 8-30-312( a) to require an appointin g authority to put off even consideri ng whether a probationary employee should be retained for atleast one m onth after employment. We donot construe Tenn. C ode Ann. § 8-30-312( a) so rigid ly. Public

employers , like their counterpa rts in the pri vate secto r, m u st be able to continuously monitor an evaluate the performance of their employees. An employee’s conduct during the first monthof his or he

r probatio nary peri od may provi de an appointin g authority withsufficient grounds fo r termina tion, and when that circumstance arises, all that T enn. Code Ann. § 8-30-312( a) requir es is that t

he termin ation take

effect one month aft er the emplo yee’s init ial hirin g date.-9- Ms. Cashion’s superiors notified he r of her t erminati on before sh e had been employed for the DMHMR for one month, but her termination took effect on her one-month

anniversary date. Even though Ms. Cas hion was plac ed on administra

tive leave on August 22, 1994, she was paid for a full mont

h of work. Accordi ngly, the timing o f Ms. Cashion’s term

ination did no t violate T enn. Code Ann. § 8-30-312(a).

T HE S TATEMENT OF THE R EASONS FOR T ERMINATION

Ms. Cashion also asserts that the DMHMR violate d Tenn. Code Ann. § 8- 30-312(a) by failing t

o provide he

r with an adequate statement of the re asons for her termination. While she focuses on on Mr. Lipford’s August 25, 1994 letter, she overlooks the Commission er of the DMHMR ’s Septem

ber 20, 199 4 letter t

o the Commis sioner of Personnel.

Tenn. Code Ann. § 8-30-212(a) requires an appointing authority to “report to the commi ssioner [o f personne l] and to the employee removed su ch action and the reasons th erefor. ” While t he better practice is to include the

statemen t of
reaso ns fo r the ter

mination in t

he employe e’s term

ination let

ter, an appointing authoritytechnica

lly complies with Tenn. Cod e Ann. § 8-30-312(a ) by statingits
reasons in the notic e it sends tothe Commissioner of Personnel and the employee. Mr. Lipford’ s August 25, 1994 letter does not prov id e adequate n otice of th e
reasons for

terminat ing Ms. Ca shion becau se it ref ers only to h er “discu ssion with Dr. Larry Durbin. ” Howe ver, the Septembe

r 20, 1994 l etter tothe Commissioner of Personne l contains a

st atement of the re asons for M s. Cashio n’s termi nation. Tenn. Code Ann. § 4-5-224 only emp o wers the courts to determine whether the
a p pointing authority i nformed a probationa

ry employe e of its re asons for terminat ing the employe e; it does no t empo w er the cou rts to seco nd-guess the appointing authority’s deci sion. Since the Septembe

r 20, 1994 l etter con

tains a statement of the DM HMR’s r

easons for terminat ing Ms. Ca shion, it

complies w ith Tenn. Code Ann . § 8-30-31 2(a).

V.-10- We affirm

the judgmen

tand rema

nd the case

to the tria l court for whatever further proceedings may be require d. We al so tax the c osts of this a ppeal to Amanda Linn Cashion and her surety for whic h ex ecution, if necessary, may issue.

_________________ ____ _______ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

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

_________________

_______________ BEN H. CANTRELL, JUDGE-11-