A former Cleveland, Tenn., firefighter who was unlawfully fired can't collect on lost pay because he didn't try hard enough to find another job, a Bradley County chancellor says.
"This court is left with this case in a strange posture," Chancellor Jerri Bryant wrote in her Oct. 11 ruling against Joshua Keller.
Though she previously ruled Keller's 2012 firing "inappropriate" because it violated Cleveland's personnel policy, Bryant wrote, "it is the law in Tennessee [that] when a plaintiff fails to exercise reasonable effort to mitigate damages, plaintiff cannot recover."
Keller, a Cleveland firefighter since 2008, was terminated by then-City Manager Janice Casteel in January 2012 after pleading guilty to misdemeanor assault. Court records state that Casteel also cited "'disgraceful personal conduct apparently stemming from alcohol abuse" as a factor in his firing.
Keller appealed the firing and Casteel, as hearing officer, upheld her own decision to terminate him. Keller filed suit against Casteel, fire department Chief Steve Haun and the city of Cleveland. He claimed it was improper for Casteel to have both the power to fire and authority over appeals, and alleged improper communications between her and Haun. Keller said the process violated city policy and his Fifth and 14th Amendment rights under the U.S. Constitution.
The constitutional claims did not survive in U.S. District Court, but Bryant ruled the firing illegal under state law, and the Tennessee Court of Appeals declined to intervene. It ordered the case back to Bradley County Chancery Court and said Keller should be granted attorneys' fees and costs.
Keller also asked for back pay and for pay he would have earned had he not been illegally fired. He said he had planned a firefighting career and said his dismissal ended his chance to rise through the ranks at the Cleveland Fire Department. He also said the firing kept him from getting another firefighting job, and that he earned less than half his former salary and was self-employed.
However, in a July hearing, the city's attorneys used Keller's own testimony and that of expert witnesses to sow doubt. Bryant's ruling noted that in three years Keller applied to just three other departments, and one application wasn't completed. Keller didn't follow up on applications, didn't apply to a temp agency and didn't ask his former supervisors for references. Keller said he would agree to reinstatement at the Cleveland Fire Department only if he could work a certain schedule so he could spend more time with his daughter.
An expert called by the city testified about other jobs Keller could have trained for and obtained with potential earnings similar to his $37,000-a-year Cleveland Fire Department position.
"This indicates a failure to mitigate his damages," Bryant wrote. " The limitations he places on the job he is willing to do are unreasonable."
Keller testified he didn't think his assault conviction or a 2009 DUI conviction hindered his job search, a position Bryant called "unrealistic."
Though Bryant previously found "the termination process used by Defendants was inappropriate," she wrote, " this court finds Plaintiff failed to mitigate his damage, and this case is hereby dismissed."
Keller's attorney, James McKoon, and the attorney for Cleveland, Ronald D. Wells, did not return calls seeking comment Thursday.