Gerald M. Brown ; Nick D. Anderson v. City of Niota , Tennessee ; L. S. Lee ; Eva Brakebill; Alan Watkins; Joel Parham

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0180P (6th Cir.)
File Name: 00a0180p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GERALD M. BROWN ; NICK D.
ANDERSON ,
Plaintiffs-Appellants,
v.
C ITY OF NIOTA , TENNESSEE ;
L. S. LEE ; EVA BRAKEBILL;
ALAN W ATKINS; J OEL
P ARHAM,
Defendants-Appellees.
;>

1
No. 99-5749
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 98-00064—Curtis L. Collier, District Judge.
Argued: April 27, 2000
Decided and Filed: May 31, 2000
Before: KENNEDY, SILER, and BATCHELDER, Circuit
Judges.

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2 Brown, et al. v. City of Niota,
Tennessee, et al.
No. 99-5749
_________________
COUNSEL
ARGUED: Peter Alliman, WHITE, CARSON, &
ALLIMAN, Madisonville, Tennessee, for Appellants. H.
Chris Trew, HIGGINS, BIDDLE, CHESTER & TREW,
Athens, Tennessee, for Appellees. ON BRIEF: Peter
Alliman, WHITE, CARSON, & ALLIMAN, Madisonville,
Tennessee, for Appellants. H. Chris Trew, HIGGINS,
BIDDLE, CHESTER & TREW, Athens, Tennessee, William
A. Buckley, Jr., Athens, Tennessee, for Appellees.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. Plaintiffs, Gerald M. Brown
and Nick D. Anderson, appeal the district court’s decision to
grant summary judgment in favor of the defendants, City of
Niota, et al., in this section 1983 action. On appeal plaintiffs
raise two issues: (1) whether the board of commissioners’
promulgation of employee rules and regulations created a
property interest in continued employment with the City of
Niota entitling the plaintiffs to notice and a hearing prior to
termination; and (2) whether the plaintiffs’ filing of this
lawsuit before the defendants received actual notice of the
plaintiffs’ desire for a name-clearing hearing bars the
plaintiffs from claiming that the defendants deprived them of
their liberty interests without due process of law. We affirm
the decision of the district court.
I. Facts
Plaintiff Brown was employed as a full-time police officer
with the City of Niota beginning in October, 1994, and
plaintiff Anderson was employed as a part-time reserve
officer beginning in November, 1993. During the course of
their employment with the city, the plaintiffs became involved
No. 99-5749 Brown, et al. v. City of Niota,
Tennessee, et al.
11
plaintiffs’ claim that they were deprived of liberty without due
process of law.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.

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10 Brown, et al. v. City of Niota,
Tennessee, et al.
No. 99-5749
3There is no evidence in the record to indicate that the plaintiffs ever
renewed their request for a name-clearing hearing and were denied this
hearing by the city.
process of law because they had not been denied a name-
clearing hearing by the city.
The plaintiffs mailed a letter to the mayor of Niota on
February 12, 1998, requesting the mayor’s response to their
demand for a name-clearing hearing by February 16, 1998. It
is undisputed that the mayor did not receive the letter until
February 17, 1998. By that date, the plaintiffs, apparently
assuming that no response should be interpreted as a denial,
filed this action in federal court. In their complaint, they
alleged that they had suffered liberty deprivations without due
process. To support these allegations the plaintiffs alleged
that the statements at the board meeting were false and
defamatory and that they requested a name-clearing hearing
which was denied. Once a plaintiff has satisfied the five
elements of the Ludwig test, he is entitled to a name-clearing
hearing “when plaintiff has made a request for such a
hearing.” Ludwig, 123 F.3d at 410. In Ludwig, the court
found that the plaintiff’s letter had not clearly stated the
plaintiff’s desire for a name-clearing hearing; therefore, the
plaintiff’s request for relief was denied because he could not
show that he had been denied a name-clearing hearing. Id. at
411. Although plaintiffs’ request was clearly stated in their
letter, this letter was not received by the mayor until February
17, 1998. The plaintiffs filed their complaint that same day.
As of the filing of the complaint, the plaintiffs could not show
that they had been denied a name-clearing hearing because
they could not show that the defendants were aware of their
desire for this hearing.3 Because plaintiffs must request a
name-clearing hearing and be denied this hearing before they
have suffered a deprivation of their liberty interest without
due process of law we believe the district court was correct in
granting the defendant’s summary judgment motion on the
No. 99-5749 Brown, et al. v. City of Niota,
Tennessee, et al.
3
in an investigation of a resident named Michael Cardin. On
December 23, 1997, Cardin confronted Brown and in the
course of this confrontation, Brown pushed Cardin. On
December 29, 1997, Brown was contacted by the chief of
police, defendant Parham, and informed that he was no longer
a city employee.
On January 12, 1998, the Niota board of commissioners
held a board meeting at which they discussed Brown’s
employment. Defendant Lee made a motion to dismiss
Brown from his employment with the police department. Lee
stated that a vote of the commissioners was needed to make
the employment decision legal. The City of Niota had
promulgated employee rules and regulations which stated that
a city employee could be dismissed only by a vote of the
board of commissioners. After a heated discussion, in which
the shoving incident was mentioned as the primary reason for
dismissal, the commissioners voted 3 to 2 to dismiss Brown.
They also agreed to award him back pay from December 29,
1997 until January 12, 1998. The notice of separation stated
that he was dismissed for unsatisfactory behavior.
Immediately after this termination decision was made,
defendant Lee made a motion to dismiss Anderson with the
stated reason being “conflict of interest.” Anderson was
employed by both the Fire and Police Departments at that
time. Also, his wife was a commissioner on the board.
Defendant Lee stated that the conflict was due to his wife’s
being on the board, but when the mayor assumed that the
basis for the motion was Anderson’s employment with both
the police and fire departments, none of the commissioners
contradicted her. The motion to dismiss Anderson was
passed by a 3 to 2 vote.
On February 12, 1998, plaintiffs mailed a letter to the
mayor of Niota requesting a name-clearing hearing arising out
of the comments made at the board meeting. The letter stated
that the mayor should notify the plaintiffs of her decision by
February 16, 1998. If the plaintiffs had not heard from the
mayor by that date, the letter stated that they would take

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4 Brown, et al. v. City of Niota,
Tennessee, et al.
No. 99-5749
1The plaintiffs’ complaint was filed the same day that the mayor
received the letter, March 17, 1998. The plaintiffs filed their complaint
in the afternoon and the mayor did not receive her mail until the early
evening.
further action. The mayor did not receive the letter until
February 17, 1998. By that time, the plaintiffs had filed a
complaint against the city and its commissioners and the
mayor never responded to the plaintiffs’ request for a
hearing.1 On May 5, 1998, the district court granted
defendants’ motion for summary judgment on all of plaintiffs’
federal claims and declined to exercise its supplemental
jurisdiction over plaintiffs’ state law claims. The plaintiffs
timely appealed.
II. Discussion
Plaintiffs contend that the district court erred in finding that
the defendants were entitled to summary judgment on the
plaintiffs’ claims that they were deprived of their property and
liberty interests without due process of law by the termination
proceedings conducted by the board of commissioners. This
court reviews a district court’s decision to grant summary
judgment de novo. See Soper v. Hoben, 195 F.3d 845, 850
(6th Cir. 1999). If there are no material factual disputes and
the moving party is entitled to judgment as a matter of law,
we will affirm the district court’s judgment. See Fed. R. Civ.
P. 56(c). In reviewing the defendants’ summary judgment
motion this court must construe the evidence and make all
inferences in a light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106
S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
A. Property Interest
Plaintiffs argue that they had a property interest in
continued employment with the City of Niota. Because the
board dismissed them from employment without notice and
an opportunity to be heard prior to the effective date of
No. 99-5749 Brown, et al. v. City of Niota,
Tennessee, et al.
9
that must be satisfied to establish that a plaintiff was deprived
of a liberty interest entitling the plaintiff to a name-clearing
hearing:
First, the stigmatizing statements must be made in
conjunction with the plaintiff’s termination from
employment. . . . Second, a plaintiff is not deprived of his
liberty interest when the employer has alleged merely
improper or inadequate performance, incompetence,
neglect of duty or malfeasance. . . . Third, the
stigmatizing statements or charges must be made public.
Fourth, the plaintiff must claim that the charges made
against him were false. Lastly, the public dissemination
must have been voluntary.
123 F.3d at 410 (internal citations omitted). Once a plaintiff
has established the existence of all five elements, he is
entitled to a name-clearing hearing if he requests one. Id.
Both plaintiffs argue that statements made by the
commissioners during the board meeting infringed on their
liberty interests in their reputations. In particular, plaintiff
Brown points to statements regarding the shoving incident
with Mike Cardin and the discussion of other undisclosed
prior incidents, while plaintiff Anderson directs our attention
to the board’s statement he was involved in a conflict of
interest. Plaintiffs contend that these statements “create[d] a
false and defamatory impression . . . in connection with
[their] termination.” Chilingirian, 882 F.2d at 205.
Assuming that the board’s comments were stigmatizing and
that the plaintiffs were entitled to a name-clearing hearing had
one been denied, we still do not believe that the plaintiffs
were deprived of their liberty interests without due process of
law. Because the city did not receive notice of the plaintiffs’
desire for a name-clearing hearing prior to the initiation of
this lawsuit we believe that the district court was correct in
granting summary judgment in favor of the defendants. At
the time this complaint was filed, the plaintiffs had not
suffered a deprivation of their liberty interest without due

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8 Brown, et al. v. City of Niota,
Tennessee, et al.
No. 99-5749
If we were willing to accept the plaintiffs’ argument that the
board’s rule on termination creates an employment contract
between the city and the plaintiffs, the plaintiffs still cannot
establish that they had a property interest in continued
employment because this contract does not provide a definite
term of employment. Tennessee courts have held that “[t]he
law is well established in this state that a contract for
employment for an indefinite term is a contract at will and can
be terminated by either party at any time without cause.”
Bringle v. Methodist Hosp., 701 S.W.2d 622, 625 (Tenn. Ct.
App. 1985); see also Graves v. Anchor Wire Corp., 692
S.W.2d 420, 422 (Tenn. Ct. App. 1985). While the Reed
court found that the employee handbook created a contract
and restricted the employer from terminating the employee
without just cause, the handbook also created a contract for a
definite time period. The employee handbook in Reed
provided that the employment relationship would be for a
term of one year to be renewed annually unless the employee
voluntarily resigned or was terminated for just cause. 4
S.W.3d at 688. Because the plaintiffs have pointed to no rule
or regulation that defines the duration of the contractual
relationship between the city and its employees they have not
rebutted the presumption that they were employees at will.
The plaintiffs did not have a protected property interest in
their continued employment with the city; therefore, we
affirm the district court’s decision to grant defendant’s motion
for summary judgment on plaintiffs’ property interest claim.
B. Liberty Interest
Plaintiffs also argue that they had a liberty interest that was
violated by the defendants during the January 12, 1998, board
meeting. “[A] person’s reputation, good name, honor, and
integrity are among the liberty interests protected by the due
process clause of the fourteenth amendment.” Chilingirian v.
Boris, 882 F.2d 200, 205 (6th Cir. 1989). A deprivation of
any of those interests “must be accompanied by notice and an
opportunity to be heard to refute any charges against that
person.” Id. In Ludwig, this Circuit identified five elements
No. 99-5749 Brown, et al. v. City of Niota,
Tennessee, et al.
5
termination they contend that they were denied due process of
law. See Board of Regents v. Roth, 408 U.S. 564, 570 n.7, 92
S.Ct. 2701, 2705 n.7, 33 L.Ed.2d 548 (1972) (“Before a
person is deprived of a protected interest, he must be afforded
opportunity for some kind of a hearing.”). Plaintiffs base
their property interest on an employee rule promulgated by
the board. This rule states that “[a] city employee may be
terminated for any just cause at the discretion of the board.”
Plaintiffs contend that this statement modified their
employment at-will and established a contractual right to
termination only for just cause.
To establish a claim for deprivation of property without due
process of law, plaintiffs must establish that they had a
property interest in continued employment with the city.
“Whether a property interest exists is not determined by
reference to the Constitution; rather, property interests
are ‘created and their dimensions are defined by existing
rules or understandings that stem from an independent
source such as state law – rules or understandings that
secure certain benefits and that support claims of
entitlement to those benefits.’”
Ludwig v. Board of Trustees, 123 F.3d 404, 409 (6th Cir.
1997). Tennessee has long recognized the doctrine of
employment at will, with the mutual right of either party to
terminate such a relationship with or without cause. See
Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555 (Tenn.
1988). Plaintiffs acknowledge this doctrine, but argue that
their at-will employment was modified by the city’s
promulgation of the rule governing the termination of city
employees. “Under Tennessee law, what would otherwise be
an at-will contract may be modified by specific language
which evidences an intent to modify the existent employment
contract.” Shelby v. Delta Airlines, Inc., 842 F. Supp. 999,
1006 (M.D. Tenn. 1993). Plaintiffs contend that the rule
modifies their employment and prohibits termination without
just cause.

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6 Brown, et al. v. City of Niota,
Tennessee, et al.
No. 99-5749
While plaintiffs are not incorrect in arguing that at-will
employment can be modified by language evidencing an
intent on the part of the employer to modify the employment
relationship, we do not agree with the plaintiffs that the
employee rules and regulations promulgated by the Niota
board evidence the city’s intent to modify the employment
relationship. We accept the plaintiffs’ contention that these
rules and regulations, like employee handbooks, could modify
an employment relationship. Tennessee courts have
“recognized that an employee handbook can become a part of
an employment contract.” Rose v. Tipton County Pub. Works
Dep’t, 953 S.W.2d 690, 692 (Tenn. Ct. App. 1997). “In order
to constitute a contract, however, the handbook must contain
specific language showing the employer’s intent to be bound
by the handbook’s provisions.” Id. We do not believe the
language of these rules and regulations shows the specific
intent of the city to be bound by their terms.
In Reed v. Alamo Rent-A-Car Inc., 4 S.W.3d 677, 688
(Tenn. Ct. App. 1999), the Tennessee Court of Appeals held
that an employee handbook could modify an at-will
employment agreement to require the employer to dismiss the
employee only for just cause. Prior to this decision,
Tennessee courts had held that terms of employment, like
benefits, could become contractual through the operation of
the employee handbook, but they had never held that an
employee handbook could convert an at-will employment
agreement into a protectible property interest. See Gregory v.
Hunt, 24 F.3d 781, 785-87 (6th Cir. 1994) (discussing this
phenomenon). The Reed court, however, limited its holding
to those cases where the handbook contains “unequivocal
language demonstrating [the employer’s] intent to be bound
by the handbook’s provisions.” In particular, the court stated
“we can conceive of no clearer way for an employer to
express its intent to be bound by a handbook’s provisions than
the employer’s specific statement that the document
represents the parties ‘entire agreement of employment’ and
that the employer ‘promises and agrees to abide by all its
terms and conditions.’” 4 S.W.3d at 688. We believe that the
No. 99-5749 Brown, et al. v. City of Niota,
Tennessee, et al.
7
2The policy statement provides:
A city employee may be terminated for any just cause at the discretion of
the board. Examples are:
A. Failure to perform duties according to job description.
B. Failure to meet attendance requirements.
Reed court announced a high standard for establishing the
existence of an employer’s specific intent to be bound by the
terms of an employee handbook and that the plaintiffs have
not satisfied this standard.
The rule concerning employee termination contains the
language that the board of commissioners “may” fire a
employee for any just cause. The term “may” is permissive
and suggests that there are other permissible means for
terminating a city employee. In cases where Tennessee courts
have found an employment contract to exist, the employee
handbook contained the mandatory terms “shall” and “will.”
See, eg., Williams v. Maremont Corp., 776 S.W.2d 78, 80-81
(Tenn. Ct. App. 1988) (finding the language “employees will
be recalled in the order of seniority” to be binding) (emphasis
added); Hamby v. Gensco, Inc., 627 S.W.2d 373, 376 (Tenn.
Ct. App. 1981) (holding that the statement contained in the
employee handbook that “these shall be The Guaranteed
Policies, Practices and Procedures” created a contractual
relationship) (emphasis added). In addition, the rule identifies
certain acts2 as grounds for discharge; however, these acts are
characterized as examples of grounds for discharge leading to
the inference that they are not the exclusive bases for
terminating city employees. In Ogburn v. Gas and Water
Dep’t, No. 01A01-9702-CH-00056, 1997 WL 528812, at *4-5
(Tenn. Ct. App. Aug. 27, 1997) (unpublished), the court held
that the use of “may” in the city charter did not limit the city
from following other methods to terminate employees. We
believe that Tennessee courts would hold that the language of
the board’s employee rules and regulations does not evidence
the clear intent to create a property interest in continued
employment with the city.

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