Former firefighter’s employee rights claim upheld

The Tennessee Court of Appeals recently handed a victory to a former Cleveland, Tennessee, firefighter who has been challenging his 2012 termination for years, saying his supervisors used an unlawful procedure to fire him.

In an opinion filed Jan. 28, the Court of Appeals said Joshua Keller made reasonable efforts to find a new job after he was terminated by then-City Manager Janice Casteel in January 2012. The appeals court also ruled the procedure was “unlawful” since Casteel fired him and oversaw his appeal, and ordered the case back to Bradley County Chancery Court for a “calculation of damages.”

“The key fact here is the same person is making the decision, and that is problematic under any due process clause [that’s designed to ensure a person has a fair hearing],” said one of Keller’s attorneys, Sarah Block, of Woodley and McGillivary LLP, a Washington, D.C., firm that serves as general counsel for the International Association of Firefighters labor union.

Chattanooga attorney James McKoon, who has been on the case for many years, did not return a call for comment Tuesday.

But the issue may be far from settled.

In a Feb. 6 motion, attorneys for the city of Cleveland asked for a rehearing. Suggesting that he did not properly direct the appeals court’s attention to this issue during arguments, attorney Ronald Wells said Cleveland’s employee handbook can be revised at any time, doesn’t provide a contract for employees, and doesn’t include a law that deals with termination procedures. Because of that, Wells argued in the motion, Keller would not have a “proprietary interest” in his job and wouldn’t have as many rights in Tennessee, an at-will work state, as the appeals court gave him.

“Mr. Keller contends he was entitled to the termination procedure quoted above, and therefore had a property interest in his employment by virtue of its inclusion in the procedure in the Personnel Handbook,” Wells wrote. “While, an at-will employment agreement may be modified … thereby creating a reasonable expectation of continued employment in the employee, in order to do so, the handbook must contain ‘unequivocal language demonstrating [the employer’s] intent to be bound by the book’s provisions.”

Wells also did not return a call for comment Tuesday.

Keller, a Cleveland firefighter since 2008, was terminated in January 2012 after pleading guilty to misdemeanor assault. Court records show Casteel cited alcohol abuse in her decision. And, as hearing officer, Casteel upheld her decision to fire when Keller tried to appeal the termination.

Keller then filed suit against Casteel, fire department Chief Steve Haun and the city of Cleveland, saying that it was improper for Casteel to have both the power to fire and authority over appeals. He also said the process violated city policy and his Fifth and 14th Amendment rights under the U.S. Constitution.

Though his constitutional claims did not survive in U.S. District Court, Bradley County Chancellor Jerri Bryant ruled the firing was illegal under state law. The Tennessee Court of Appeals declined to intervene and ordered the case back to Bradley County, saying Keller should be granted attorneys’ fees and costs.

From there, Keller asked for back pay and pay he would have earned had he not been fired. He added the firing kept him from getting another firefighting job and that he earned less salary and was self-employed.

But in a July 2016 hearing, city attorneys for Cleveland used expert witnesses to sow doubt about the number of places Keller had applied. And in a reversal, Chancellor Bryant ruled the testimony indicated a “failure to mitigate his damages” and dismissed Keller’s claim.

Shortly after that, Keller appealed.