Employee Disciplinary Appeal Process for Preferred-Service Employees

Can I appeal my disciplinary action?

If you are a non-probationary employee in the preferred service, you may file a Step I Appeal of a dismissal, demotion, or suspension to your agency’s designated representative. For more information on probationary periods, please see DOHR Rule 1120-02. For information on the State’s Appeals Process, please see DOHR Rule 1120-11 and DOHR Policy 12-005.

My agency tells me I am not eligible to appeal my disciplinary action? What action can I take?

Only employees in the preferred service who have completed an initial probationary period may appeal their disciplinary action through the State’s Appeal Process.

Additionally, preferred-service employees who have completed an initial probationary period may still be prevented from appealing a demotion if the demotion occurs within the first year of any subsequent probationary period and the demotion places them back to their most recently held position. For more information, please review DOHR Rule 1120-02.12(6)(b) and DOHR Policy 12-005.

Step I

How do I file a Step I Appeal?

If you are an eligible employee, you will have fourteen (14) calendar days (excluding state holidays) from the date you receive notice of the disciplinary action to submit a written request to appeal to your agency. Please follow your agency’s instructions on how to submit this request. You may do so by completing a fillable Step I Appeal form here. For more information on the State’s Appeals Process, please see DOHR Rule 1120-11 and DOHR Policy 12-005.

For more information on tolling of days associated with deadlines, please see DOHR Rule 1120-12.

What is a Step I Appeal Discussion?

The Step I Appeal process is handled at the employee’s agency level. A neutral fact-finder (designee) is designated by the appointing authority to intake the employee’s Step I Appeal. The Step I Appeal designee is responsible for holding and scheduling the Step I Appeal Discussion. For more information on the Step I Appeal process, please click here.

Can I have a representative participate with me in the Step I Appeal Discussion?

Employees may have a representative attend the Step I Appeal Discussion. However, the presence of third parties in the Step I Appeal Discussion is at the Step I Appeal Designee’s sole discretion. Representatives may not vocally advocate on behalf of the employee except in the following circumstance:

If more than one (1) an agency representative, other than the Step I Appeal Designee, actively participates in the appeal, the employee’s  representative may actively participate in the Step I Appeal Discussion.

Can I have an attorney participate in the Step I Appeal Discussion?

With the Step I Appeal Designee’s consent, attorneys may observe the Step I Appeal discussion; however, they may not at any time vocally advocate for the employee.

When will I receive the Step I Appeal Decision?

Agencies have twenty (20) calendar days (excluding state-observed holidays) to hold the Step I Appeal Discussion and issue the Step I Appeal Decision.

Step II

How do I file a Step II Appeal?

If you are an eligible employee, you will have fourteen (14) calendar days (excluding state holidays) from the date you receive the Step I Appeal Decision to submit a written request to appeal to the Department of Human Resources. You may do so by completing a fillable Step II Appeal form here. For more information on the State’s Appeals Process, please see DOHR Rule 1120-11.

For more information on tolling of days associated with deadlines, please see DOHR Rule 1120-12.

When will I receive the Step II Appeal Decision?

The Department of Human Resources has thirty (30) calendar days (excluding state-observed holidays) to issue a Step II Appeal Decision.

Is there an in-person hearing?

Unlike the Step I Appeal process, there is no in-person meeting or hearing at Step II Appeal. It is designed to be document review only.

Can I have an attorney represent me during the Step II Appeal?

Although there is no in-person or formal hearing, employees are allowed to have attorneys represent them by submitting written arguments or other documentation for consideration by the Department of Human Resources.

Can I present new information during the Step II Appeal review?

Pursuant to state law, the agency or the employee may present new information during the Step II Appeal review; however, each party will be provided the documentation to review and provide comment within three (3) days of receipt. For more information, please review DOHR Rule 1120-11.

Step III

How do I file a Step III Appeal?

If you are an eligible employee, you will have fourteen (14) calendar days (excluding state-observed holidays) from the date you receive the Step II Appeal Decision to submit a written request to appeal to the Board of Appeals. You may download the fillable form here.

Please note that only dismissals, demotions, and suspensions of three (3) days or greater may proceed to Step III for review before the Board of Appeals.

For more information on tolling of days associated with deadlines, please see DOHR Rule 1120-12

Please note that unlike Steps I and II, the Agency may also appeal the Step II Appeal Decision rendered by the Department of Human Resources.

For more information on appealing to Step III before the Board of Appeals, please review DOHR Rule 1120-11.

May I have an attorney represent me during the Step III Appeal Process and before the Board of Appeals?

Yes. Individuals appealing to Step III before the Board of Appeals are allowed to be represented by an attorney throughout the process. For more information on appealing to Step III before the Board of Appeals, please review DOHR Rule 1120-11.

Who is responsible for administering the Step III Appeal process?

The Department of Human Resources, Office of General Counsel, administers the Step III appeals process in partnership with the Secretary of State’s Office, Administrative Procedures Division (APD).

The Department handles intake and logistical planning for the Step III process. An administrative law judge (ALJ) , with the APD, is assigned and presides over preliminary hearings, partners with the parties and the Department on setting the hearing date, and rules on various motions both prior to and during the actual hearing before the Board of Appeals. The ALJ, also assists in ruling on questions of admissibility of evidence, swearing witnesses, advising members of the Board of Appeals on the law of the case, and ensuring that the proceedings are carried out consistent with law. The board members for the Step III appeal make the final decision in each proceeding, and have the ability to overturn, reduce, or amend the disciplinary action.

For more information on appealing to Step III before the Board of Appeals, please review DOHR Rule 1120-11.

Who are the Board of Appeals board members?

The board members for the Board of Appeals consists of three (3) non-state employee professionals with backgrounds typically in human resources and/or employment law. These board members are appointed by the Governor and serve for set terms. The board members for the Step III appeal make the final decision in each proceeding, and have the ability to overturn, reduce, or amend the disciplinary action. The final order rendered by the Board is the final step in the State’s appeal process. For more information, please review Tenn. Code Ann. § 8-30-108 or DOHR Rule 1120-11.

How long does the Step III Appeal Process take?

Once a Step III Appeal has been initiated by the individual or the agency, and all the procedures have been reviewed, a date is set for the hearing. A final decision in the form of a final order must be issued no later than 120 calendar days after filing of the Step III Appeal. However, in the event of an extension, the deadline may be increased up to 140 calendar days.

For more information on appealing to Step III before the Board of Appeals, please review DOHR Rule 1120-11.

Who can initiate a Step III Appeal?

Pursuant to Tenn. Code Ann. § 8-30-318, an employee or agency who does not agree with the Step II Appeal Decision issued by the Department of Human Resources, may initiate a Step III Appeal. The appealing party has fourteen (14) calendar days to submit an appeal request to Step III before the Board of Appeals. Please download the fillable form here.

Who holds the burden of proof at Step III before the Board of Appeals?

The burden of proof rests with the appealing party who filed the Step III Appeal. This simply means that it is that appealing party’s responsibility to convince the Board why it should rule in their favor.

Will I be contacted after I file my Step III Appeal?

Yes, within twenty (20) days after the filing of the appeal, the parties will participate in a pre-hearing conference. At the pre-hearing conference, a date will be confirmed and other preliminary matters will be discussed.

Will my hearing be held in person?

During the pre-hearing conference, the parties will determine if the hearing will be virtual or in person.

What is the standard of review at Step III before the Board of Appeals?

The standard of review is de novo, which means the Board will hear and decide the case without any legal assumptions to the previous Step I and Step II Appeal Decisions.

Can I sit in on other hearings in order to observe a hearing before the Board of Appeals?

Yes, under the Tennessee Open Meetings Act (i.e., Tennessee’s Sunshine Law), all hearings must provide proper notice for the public. In addition, any policy decisions and/or deliberations must be on the record and open for the public. See Tenn. Code Ann. § 8-44-101, et seq.

The Board of Appeals did not rule in the my favor, what are my options?

Once the Board issues a final order, it is subject to judicial review in accordance with the Uniform Administrative Procedures  Act (Tenn. Code Ann., Title 4, Chapter 5.) If the party wishes to appeal the Board of Appeals’ final order, it must file an appeal to the appropriate chancery court within sixty (60) days of the filing of the Final Order. Employees may also contact their regional Equal Employment Opportunity Commission (EEOC) to discuss their options. Please note that you do not need to complete the State’s Appeal Process in order to pursue private actions.

Should the Board of Appeals not rule in the agency's favor and award attorney's fees, how is that process handled?

Pursuant to Department of Human Resources Rule 1120-11-.05, the Board of Appeals may, at its discretion, award reasonable fees and costs upon successful appeal to an employee’s attorney.

If awarded, within thirty (30) days of the Final Order, the prevailing party must submit the following to the Board of Appeals administrator:

·  An affidavit itemizing all services performed. These must be pursuant to the Attorney General’s Defense Counsel Guidelines. The affidavit must be signed and notarized at the time of submission.

·  Designee for the Board of Appeals will review all claims.

·  Once approved, the request will be forwarded to respective agency for review. The agency will have five (5) days to dispute the request in writing.

·  Final payment will be issued for the agency.

For more information on attorney fees, please visit Tenn. Code Ann. § 8-44-101, et seq or DOHR Rule 1120-11-.05.

 What are the agency’s obligations during the Step I Appeal?

The agency is responsible for appointing a Step I Appeal Designee to serve as a neutral fact-finder during the Step I Discussion. Step I Appeal Designee’s should schedule the Step I Discussion, hold the Step I Discussion, and ultimately render a Step I Decision within twenty (20) calendar days (excluding state-observed holidays).

For more information on the Step I Appeal Designee’s duties, please click here.

May the agency hold the Step I Discussion virtually?

Step I Appeal Designees are allowed to hold the Step I Discussion remotely via video conference or tele-conference; however, the preference is to hold the Step I Discussion in person to maximize the employee’s and agency’s ability to present their arguments. Examples of when it would be suitable to hold the Step I Discussion remotely might include, for example, situations involving safety or geographical distance.

Can an agency initiate a Step III Appeal?

Yes. Pursuant to Tenn. Code Ann. § 8-30-318, if the agency does not agree with the Step II Appeal Decision issued by DOHR, the agency has fourteen (14) calendar days with which to submit an appeal request to Step III before the Board of Appeals. Please download the fillable form here.

Who is responsible for administering the Step III Appeal Process?

The Department of Human Resources, Office of General Counsel, administers the Step III Aappeals Pprocess in partnership with the Secretary of State’s Office, Administrative Procedures Division (APD).

The Department handles intake and logistical planning for the Step III process. An administrative law judge (ALJ) , with the APD, is assigned and presides over preliminary hearings, partners with the parties and the Department on setting the hearing date, and rules on various motions both prior to and during the actual hearing before the Board of Appeals. The ALJ, also assists in ruling on questions of admissibility of evidence, swearing witnesses, advising members of the Board of Appeals on the law of the case, and ensuring that the proceedings are carried out consistent with law. The board members for the Step III Aappeal make the final decision in each proceeding, and have the ability to overturn, reduce, or amend the disciplinary action.

For more information on appealing to Step III before the Board of Appeals, please review DOHR Rule 1120-11.

Who are the Board of Appeals board members?

The board members for the Board of Appeals consists of three (3) non-state employee professionals with backgrounds typically in human resources and/or employment law. These board members are appointed by the Governor and serve for set terms. The board members for the Step III Aappeal make the final decision in each proceeding, and have the ability to overturn, reduce, or amend the disciplinary action. The final order rendered by the Board is the final step in the State’s Aappeal Pprocess. For more information, please review Tenn. Code Ann. § 8-30-108 or DOHR Rule 1120-11.

How long does the Step III Appeal process take?

Once a Step III Appeal has been initiated by the individual or the agency, and all the procedures have been reviewed, a date is set for the hearing. A final decision in the form of a final order must be issued no later than 120 calendar days after filing of the Step III Appeal. However, in the event of an extension, the deadline may be increased up to 140 calendar days.

For more information on appealing to Step III before the Board of Appeals, please review DOHR Rule 1120-11.

Who holds the burden of proof at Step III before the Board of Appeals?

The burden of proof will be on the party who filed the Step III Appeal. This simply means that it that party’s job to convince the Board why it should rule in your favor.

Will my hearing be held in person?

During the pre-hearing conference, the parties will determine if the hearing will be virtual or in person.

What is the standard of review at Step III before the Board of Appeals?

The standard of review is de novo, which means the Board will hear and decide the case without any legal assumptions to the previous Step I and Step II Appeal Decisions.

Can I sit in on other hearings in order to observe a hearing before the Board of Appeals?

Yes, under the Tennessee Open Meetings Act (Tennessee’s Sunshine Law), all hearings must provide proper notice for the public. In addition, any policy decisions and/or deliberations must be on the record and open for the public. See Tenn. Code Ann. § 8-44-101, et seq.

The Board of Appeals did not rule in the agency’s favor, what are the agency’s options?

Once the Board issues a final order, it is subject to judicial review in accordance with the Uniform Administrative Procedures Act (Tenn. Code Ann., Title 4, Chapter 5. If the party wishes to appeal the Board of Appeals’ final order, it must file an appeal to the appropriate chancery court within sixty (60) days of the filing of the Final Order.

Should the Board of Appeals not rule in the agency’s favor and award attorney’s fees, how is that process handled?

Pursuant to DOHR Rule 1120-11-.05, the Board of Appeals may, at its discretion, award reasonable fees and costs upon successful appeal to an employee’s attorney.

If awarded, within thirty (30) days of the Final Order, the prevailing party must submit the following to the Board of Appeals administrator:

·  An affidavit itemizing all services performed. These must be pursuant to the Attorney General’s Defense Counsel Guidelines. The affidavit must be signed and notarized at the time of submission.

·  Designee for the Board of Appeals will review all claims.

·  Once approved, the request will be forwarded to respective agency for review. The agency will have five (5) days to dispute the request in writing.

·  Final payment will be issued for the agency.

For more information on attorney fees, please visit Tenn. Code Ann. § 8-424-101, et seq or DOHR Rule 1120-11-.05.