Davis v. Dept. of Employment Security ( 1999 )


Menu:
  •         IN THE COURT OF APPEALS OF TENNESSEE
    FILED
    December 10, 1999
    Cecil Crowson, Jr.
    Appellate Court Clerk
    AT NASHVILLE
    HAROLD DAVIS,                  )
    )
    Plaintiff/Appellant,     )
    )
    VS.                                      )
    )
    )   Davidson Chancery
    TENNESSEE DEPARTMENT OF                  )   No. 96-515-III
    EMPLOYMENT SECURITY,                     )
    TENNESSEE CIVIL SERVICE                  )
    COMMISSION, and                          )   Appeal No.
    MARGARET CULPEPPER, in her               )   M1996-00021-COA-R3-CV
    official capacity as Commissioner of the )
    Tennessee Department of Employment )
    Security,                                )
    )
    Defendants/Appellees.             )
    APPEAL FROM THE CHANCERY COURT
    FOR DAVIDSON COUNTY
    AT NASHVILLE, TENNESSEE
    THE HONORABLE ROBERT S. BRANDT, CHANCELLOR
    For the Plaintiff/Appellant:                      For the Defendants/Appellees:
    Larry D. Woods                                    Paul G. Summers
    Nashville, Tennessee                              Attorney General and Reporter
    James C. Floyd
    Assistant Attorney General
    Page 1
    AFFIRMED AND REMANDED
    WILLIAM C. KOCH, JR., JUDGE
    OPINION
    This appeal involves the efforts of a state employee to obtain judicial review
    of a written reprimand for repeatedly filing grievances concerning non-grievable
    matters. After the Civil Service Commission declined to consider his grievance
    concerning the written reprimand, the employee filed suit in the Chancery Court for
    Davidson County seeking both judicial review of the Commission’s decision under
    the Uniform Administrative Procedures Act and injunctive and other equitable relief
    against his employer under the federal civil rights laws. The trial court dismissed the
    civil rights claims and later dismissed the employee’s petition for review because it
    was not timely filed. On this appeal, the employee takes issue with the dismissal of
    his petition for review and with the trial court’s refusal to reinstate his civil rights
    claim following the dismissal of his petition for review. We have determined that the
    trial court properly dismissed both claims and, therefore, affirm the trial court.
    I.
    Harold Davis is a career employee of the Tennessee Department of
    Employment Security. In September 1994, he filed a grievance with the Department
    complaining that he had been passed over for promotions because of his race.
    Eight months later, in May 1995, Mr. Davis filed a second grievance alleging
    Page 2
    disparate working conditions and the denial of promotions because of his race. The
    Department officials informed him that these sorts of complaints were not grievable
    matters. Not to be deterred, Mr. Davis filed a third grievance on similar grounds in
    September 1995. The Department informed him again that he was asserting
    non-grievable matters.
    Thereafter, on September 15, 1995, the Department sent Mr. Davis a written
    reprimand 1 stating that he had failed to maintain satisfactory and harmonious
    working relations with his supervisors and fellow employees 2 and that his
    repeated grievances pertaining to the assessment of the performance of the
    employees within the federal and data entry units interfered with
    management’s ability to manage. 3 Believing that the written reprimand
    wrongfully retaliated against him for filing legitimate grievances, Mr. Davis
    requested Margaret Culpepper, the Commissioner of the Department of
    Employment Security, to review the reprimand. 4 Following a review
    conducted by her designee, Commissioner Culpepper concurred in the
    written reprimand and notified Mr. Davis of her decision in a letter dated
    October 31, 1995.
    Mr. Davis equated Commissioner Culpepper’s action as an adverse
    Step IV grievance decision and, on November 21, 1995, requested a Step V
    grievance hearing before an administrative law judge. On December 13,
    1995, the Civil Service Commission’s staff informed Mr. Davis that the
    Commission lacked authority to consider his grievance because Tenn. Comp.
    R. & Regs. r. 1120-11-.08(5) (1994) expressly provides that written
    reprimands are not grievable beyond Step IV. Thereafter, Mr. Davis
    retained counsel who also requested a Step V grievance hearing before an
    administrative law judge. On January 29, 1996, the Commission again
    Page 3
    informed Mr. Davis that his situation involved non-grievable matters because
    all his complaints related to the internal management of the Department.
    Mr. Davis filed suit against the Department and Commissioner
    Culpepper in the Chancery Court for Davidson County on February 15,
    1996. In addition to seeking judicial review of the Civil Service Commission’
    s decision under the Uniform Administrative Procedures Act, Mr. Davis also
    sought injunctive and other equitable relief against Commissioner Culpepper
    under the federal civil rights laws. At the outset, the Department and
    Commissioner Culpepper moved to dismiss Mr. Davis’s federal civil rights
    claims based on the precedents against pursuing appellate remedies and
    original claims in the same proceeding. 5 Thereafter, the trial court directed
    Mr. Davis to elect which remedy he wished to pursue or face the dismissal of
    his federal civil rights claim. When Mr. Davis refused to elect a remedy, the
    trial court dismissed his civil rights claim without prejudice.
    The trial court took up Mr. Davis’s petition for review under 
    Tenn. Code Ann. § 4-5-322
     (1998) in August 1996. During the hearing, the
    Department and Commissioner Culpepper moved to dismiss Mr. Davis’s
    petition because it was not timely filed. The trial court granted the motion
    and dismissed Mr. Davis’s petition. Later, the trial court denied Mr. Davis’s
    motion to alter or amend it’s order of dismissal to include additional findings
    of fact and conclusions of law.
    II.
    The determinative issue in this case is the timeliness of Mr. Davis’s petition
    for review. The Uniform Administrative Procedures Act requires persons aggrieved
    by a final decision of an administrative agency to file their petition for review within
    sixty days after the entry of the agency’s final order. See 
    Tenn. Code Ann. § 4-5-322
    (b)(1). A party’s failure to file a petition for review on or before the
    Page 4
    statutory deadline prevents the courts from exercising their jurisdiction to review the
    agency’s decision. See Schering-Plough Healthcare Prods., Inc. v. State Bd. of
    Equalization, 
    999 S.W.2d 773
    , 776 (Tenn. 1999); Bishop v. Tennessee Dep’t of
    Correction, 
    896 S.W.2d 557
    , 558 (Tenn. Ct. App. 1994).
    We must first determine when the time for filing Mr. Davis’s petition began to
    run before we can determine whether the sixty-day filing period had passed by the
    time Mr. Davis filed his petition for review. Both parties agree that the Civil Service
    Commission’s December 13, 1995 letter is the order Mr. Davis seeks the courts to
    review. The Department and Commissioner Culpepper argue that the time for filing
    the petition for review began to run on that date. Mr. Davis, on the other hand,
    insists that the time for filing his petition for review did not begin to run until
    December 23, 1995 because the Commission’s December 13, 1995 letter was an “
    initial order” that did not become final until ten days after its entry. 6 Mr. Davis is
    mistaken.
    The Uniform Administrative Procedures Act affords state agencies two
    procedures for deciding contested cases. First, the agency, board, or
    commission may hear and decide the case itself. See 
    Tenn. Code Ann. § 4-5-314
    (a) (1998). Second, the agency, board, or commission may decide to
    request an administrative law judge or hearing officer to conduct the hearing
    and then render an “initial order” that may, in turn, be affirmed or modified
    by the agency, board, or commission on its own motion or at the request of
    one of the parties. See 
    Tenn. Code Ann. § 4-5-314
    (b). These initial orders
    cannot become final until ten days after they are entered. See 
    Tenn. Code Ann. § 4-5-318
    (f)(3) (1998).
    Mr. Davis’s argument that the December 13, 1995 letter is an initial
    order loses sight of the fact that this letter represents an order by the
    Commission, not an order by an administrative law judge or a hearing
    Page 5
    officer. In the letter, the Civil Service Commission’s staff, 7 acting for the
    Commission, informed Mr. Davis that he was not entitled to a Step V
    grievance with regard to the written reprimand and stated unequivocally that
    no further sort of administrative review was available to him. Because this
    decision, which was fully consistent with the applicable civil service
    regulations, 8 was a final agency order, it became final when it was entered on
    December 13, 1995. Accordingly, the time for filing a petition for review
    began to run on that date. Mr. Davis’s petition for review, filed on February
    15, 1996, was thus three days late.
    III.
    Sensing the futility of his efforts to cast the Civil Service Commission’s
    December 13, 1995 letter as an interim order, Mr. Davis offers two other arguments
    why the time for filing his petition for review should not be measured from
    December 13, 1995. First, he argues that the time for filing his petition for review
    should not begin to run until he actually received the Commission’s December 13,
    1995 letter. Second, he argues that the running of the filing period should be tolled
    because he requested the Commission to rehear the decision in its December 13,
    1995 letter. Neither argument has merit.
    Mr. Davis responded to the motion to dismiss his petition for review by
    asserting that he had “excusable grounds” for filing his petition beyond the
    sixty-day period prescribed by 
    Tenn. Code Ann. § 4-5-322
    (b)(1) because he did
    not receive the Commission’s December 13, 1995 letter until December 30, 1995.
    This argument has no merit. As we have repeatedly held, the time for seeking
    judicial review of an agency’s decision runs from the date of the entry of the agency’
    Page 6
    s final order, not from a party’s receipt of such order. See Cheairs v. Lawson, 
    815 S.W.2d 533
    , 534 (Tenn. Ct. App. 1991); Houseal v. Roberts, 
    709 S.W.2d 580
    , 581
    (Tenn. Ct. App. 1984). While some delays in receiving notice of a final order could
    theoretically be so long that they amounted to no notice or legally insufficient notice
    to a party, such was not the case here. On the facts of this case, Mr. Davis had
    ample time – six weeks – to decide whether he wished to seek judicial review of the
    Commission’s decision that he could not press his grievance beyond the fourth step.
    Mr. Davis also argues that he was entitled to additional time for filing his
    petition for review because he requested the Commission to reconsider the
    conclusion in its December 13, 1995 letter. Again, we find no merit to this
    argument. 
    Tenn. Code Ann. § 4-5-322
    (b)(2) provides that the time allotted for filing
    a petition for review is not extended for any period simply by requesting an agency
    to reconsider a final order. 9
    IV.
    Mr. Davis’s final argument involves his federal civil rights claim. He points
    out that the trial court dismissed this claim only because it had been joined
    improperly with his petition to review the Civil Service Commission’s decision. If
    we affirm the dismissal of his petition for review, he insists that we should reinstate
    his federal civil rights claim because there will no longer be an impermissible joinder
    of appellate and original remedies. We decline to reinstate Mr. Davis’s federal civil
    rights action because he failed to request this relief from the trial court.
    Mr. Davis does not take issue with this court’s decision that it is
    impermissible to join an appeal from an action of an administrative agency with an
    original action. 10 Nor does he take issue with the order directing him to elect
    which of these remedies he desired to pursue or with the trial court’s making
    the decision for him after he declined to make the election himself. Rather,
    in hindsight, he requests this court to reinstate his federal civil rights claim
    now that his appellate remedy has been dismissed.
    Page 7
    The doctrine of election of remedies prevents plaintiffs from seeking
    inconsistent remedies. See Wimley v. Rudolph , 
    931 S.W.2d 513
    , 515 (Tenn.
    1996). Its purpose is to prevent double recoveries. See Forbes v. Wilson
    County Emergency Dist. 911 Bd. , 
    966 S.W.2d 417
    , 421 (Tenn. 1998); Purcell
    Enters., Inc. v. State , 
    631 S.W.2d 401
    , 409 (Tenn. Ct. App. 1981). However,
    as laudable as its purpose is, the doctrine of election of remedies is a harsh
    one that the courts do not favor. See Lund v. Albrecht , 
    936 F.2d 459
    , 464
    (9th Cir. 1991); Beyer v. Easterling , 
    738 So. 2d 221
    , 226-27 (Miss. 1999);
    Ripple v. Wold , 
    549 N.W.2d 673
    , 674 (S.D. 1996); 18 Charles A. Wright, et
    al., Federal Practice and Procedure § 4476, at 773 (1981).
    The doctrine requires a plaintiff who is seeking inconsistent remedies
    to choose one of the remedies. Once made, this choice becomes irrevocable,
    and the plaintiff is thereafter estopped from pursuing the remedy not chosen.
    See Barnes v. Walker , 
    191 Tenn. 364
    , 368, 
    234 S.W.2d 648
    , 650 (1950);
    Allied Sound, Inc. v. Neely , 
    909 S.W.2d 815
    , 822 (Tenn. Ct. App. 1995);
    Hayes v. Civil Serv. Comm’n , 
    907 S.W.2d 826
    , 828 (Tenn. Ct. App. 1995).
    However, with the advent of the liberalized pleading rules, most courts will
    not invoke the doctrine unless (1) the plaintiff has prosecuted the chosen
    remedy either to final judgment or a determinative conclusion, see Gottschalk
    v. Simpson , 
    422 N.W.2d 181
    , 185 (Iowa 1988); Christensen v. Eggen , 
    577 N.W.2d 221
    , 224 (Minn. 1998); Alexander v. Link’s Landing, Inc. , 
    814 S.W.2d 614
    , 620-21 (Mo. Ct. App. 1991); Family Bank of Commerce v.
    Nelson , 
    697 P.2d 216
    , 218 (Or. Ct. App. 1985), or (2) the defendant has
    materially changed its position based on the plaintiff’s choice of remedy. See
    Ripple v. Wold , 549 N.W.2d at 675-76. Thus, most courts permit a party to
    change to an alternative remedy until judgment is entered or until the
    doctrines of res judicata or collateral estoppel apply. See Smith v. Golden
    Page 8
    Eagle Ins. Co. , 
    82 Cal. Rptr. 2d 300
    , 303 (Ct. App. 1999).
    Although the decisions are not without some doubt, the Tennessee
    Supreme Court appears to have recognized the controlling significance of a
    final judgment in an election of remedies analysis. The Court has held that
    the doctrine applies once the plaintiff obtains a judgment on one of its
    inconsistent claims, even if it is later unable to satisfy the judgment. See
    Phillips v. Rooker , 
    134 Tenn. 457
    , 465-66, 
    184 S.W. 12
    , 14 (1916). However,
    the Court has also noted that the doctrine does not apply when the plaintiff
    elects to pursue a remedy that is legally or factually unavailable. See
    Montlake Coal Co. v. Chattanooga Co. , 
    137 Tenn. 440
    , 444-45, 
    193 S.W. 1057
    , 1058 (1917); Grizzard v. Fite , 
    137 Tenn. 103
    , 108, 
    191 S.W. 969
    , 970
    (1917), rev’d on other grounds , Barnes v. Walker , 
    191 Tenn. 364
    , 372, 
    234 S.W.2d 648
    , 651 (1950). 11
    Mr. Davis did not request the trial court to reinstate his federal civil
    rights claim. Had this request been included in his Tenn. R. Civ. P. 59.04
    motion to alter or amend the judgment, we would have held, without
    hesitation, that the trial court erred by denying this request. However, Mr.
    Davis did not bring this question to the trial court’s attention and did not
    request the relief he is seeking now from this court. A claim for relief or
    issue not asserted or raised at trial cannot be asserted or raised for the first
    time on appeal. See Simpson v. Frontier Community Credit Union , 
    810 S.W.2d 147
    , 153 (Tenn. 1991); State Dep’t of Human Servs. v. Defriece , 
    937 S.W.2d 954
    , 960 (Tenn. Ct. App. 1996). Mr. Davis is not entitled to the relief
    he now seeks because he failed to seek the same relief in the trial court. See
    Tenn. R. App. P. 36(a). 12
    V.
    Page 9
    We affirm the dismissal of Mr. Davis’s petition for review and his federal civil
    rights claim and remand the case to the trial court for further proceedings consistent
    with this opinion. We tax the costs of this appeal to Harold Davis and his surety for
    which execution, if necessary, may issue.
    _____________________________
    WILLIAM C. KOCH, JR., JUDGE
    CONCUR:
    _________________________________
    SAMUEL L. LEWIS, JUDGE
    _________________________________
    BEN H. CANTRELL, JUDGE
    Page 10