# FILED

February 29, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk MARIE CRUMP, ) ) Plaintiff/Appell

ant, )

) Appeal No. v. ) M1999-02677-COA-R3-CV ) THE TENNESSEE CIV

IL SERVICE ) Davidson Chancery COMMISSION and THE TENNESSEE ) No. 97-3372-III DEPARTMENT OF MENTAL ) HEALTH and MENTAL ) RETARDATION, ) ) Defendants/Appel

lees. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE
THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

FRANK J. SCANLON Watkins, McGugin, McNeilly & Rowan 214 Second Avenue N

orth, Suite 300 Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFF/APPELLANT

PAUL G. SUMMERS Attorney General and Reporter MARY M. COLLIER 425 Fifth Avenue No

rth Second Floor, Cor

dell Hull Building Nashville, Tennessee 37243 ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE 

## O P I N I O N

This is an appeal from

an administrative termination under the UAPA. See Tenn. Code Ann. §4-5-101 et seq. (1998). Prior to her termination on J

uly2

24, 1995, Ms. Marie Crump was employed by the Tenn essee De par tment of Mental Health and Mental R etardation in its Cloverbottom Developm ent Faci lity. Her termination ste

mmed indir

ectly from

an altercation

resulting from

a notation
on Ms. Crump’ s timecard. On July 6, 1995, Ms. Crump r

eported for work at Cloverbottom

for a reg ular shift commencing around 3:00 p.m. Her tim e card bore a notation on the back stating “no wor k for July the 4th”. This m

eant Ms. Crump had been scheduled to w ork on July 4th but did

not show up and did not provideany reason or excu se for bein g absent. Apparently, Ms. Crump was originally scheduled to be off

work on July 4th and 5th but rescheduled to be off
on July 5th and 6th. Ms. Crump wa s unaware of the

change and did not show

up for work on July 4th. Ms. Crump became very upset about the notation on the time card because it

in dicated she had inten

tionally stay

ed off the job wit

hout any good reason. She w

ent immedi

ately to her su pervi sor, M s. Lin da Man grum, to explain and prevent disciplinar

y action from

being taken. Ms. M

angrum told Ms. Crump she could n

ot attend to the

matter at tha

t time and would speak with her later. Ms. Crump lef

t but returned in a fe

w minutes and a

sked Ms. Mangrum to addre ss th e situ ation . Agai n Ms. M angru m chose to de fer the matte r. Ms. Crump b ecame anger

ed and shouted at Ms. Mangrum “f — you, bitch” an

d departed the prem

ises.

When Ms. Crump reported for work on July 7, 1995, she was instructed to se e Mrs. D orothy Eddings who was the superior of Ms. Mangrum and was supported living facilitator for Cloverbottom. Ms. Cru mp me t with Mrs. Eddings prior to the beginning of her shift. Mrs. Eddi

ngs told M s. Crump th at she inten ded to recomme

nd that Ms. Crum

p be terminate

d. At this point a disp

ute
arosebetween the testim ony of Mrs. Ed

dings and Ms. Crum

p. Mr s. Eddings testified that she was care ful to explain

to Ms. Crump th

at she was only ma

king
arecommendat

ion and encouraged Ms. Cru mp to remain on the job for two weeks until the recom

mendation could be

acted u pon. Ms. Crump denied that M rs. Eddings stressed that she was only making a recomme ndation but rather that she was in fact fi

ring Ms. Crump

and giving her a two week gra ce period. After this meeting Ms. Crump left Cl overbottom and never ret urned.

In a letter dated July 24, 1995, and signed by Ms. Margaret Lewis and Ms. Eddings, Cloverbott om informe

d Ms. Crump tha

t sh e was te rminated for leaving work without permission and conduct unbecoming an employee i n state service. The le

tter further stat

ed the following:
This decision may

be appealed under the State’s grieva nc e procedure, in which case notice of the grievance shouldbe filed within

fifteen (15) working days. Assistance3 in filing an appeal m

ay be receive

d by cont actin g Alan McLeod, Em

ployee Relations Officer, at e xtension 5125.

Ms. Crump pursued an appeal fr om the term

ination, and in March 19, 1997, a hearingwas held before A dministrative L

aw Judge Margaret Robert

son. The ALJ issued her initial order affirming the terminati

on on June 27, 1997. Thereafter the Civil Service Com mission heard Ms . Crump’s a ppeal from the ALJ’s action, and on August 11, 1997, the

commission adopted

the initial order
as a final determ

ination. Ms. Crum

p sought judicial re

view of the commissio n’s actionin chancery court pursuant to the U A PA, Tennessee Code Annotated section 4-5-322. The

court, by memorand

um and order dat

ed January 19, 1 999, affirmed the action of the Civil Service Commission. From the chan cellor’ s order Ms. Crum

p appeals to this Court

, urging the followi

ng issues: 1. The administr

ative action

complained of be

low is not supported by substantial material evidence; 2. Ms. Crump wa

s not afforded the

minimum

due process as required by Tennessee Code Annotated section 8-30-3 31 and Tennessee Rules a nd Regulations Rule 1120-10-.03(2).

Ms. Crump has not persuaded this Court that the actions of the ALJ and the Commission are not supported by substantial and material evidence. In the proceeding

before th e ALJ, Ms. Cr

ump admitte

d using foul and disrespe ctful language to hersupervisor. The A LJ accepted the te

stimony of M

rs. Eddings in preference to the testimony of Ms. Crump a

s to what actually

happened at th

e July 7, 1995 meeting. Ms. Crump left the mee ting and the Clover bottom premises befor

e the end of her shif

t and never returne

d.

Our task is to deter minewhether or not “substantial and material evidence” appears in the record to sustai n the judgment of the ALJ.

In reviewing an adm

inistrative decision , a court “shall not substitute its judgment f

or that of the agenc

y as to the weigh

t of the evidence on que stions of fact.” T.C.A. § 4-5

- 322(h)(5). Factual issues are reviewed upon a sta

ndard of substantial and material evidence, and not upon a broad, de novo review. CF Industries v. Tennessee Public Service Co mmission , 599 S.W.2d 536, 540 (Tenn. 1980). Substanti a l and material evi

dence is “ ‘ such relevant evide nce as a reasonable

mind might accept to support a rational c onc lusion and such as to furnish a reasonably sound basis for the action under consideration.’ ” Sweet v. State Te ch. Institute at Memphis , 617 S.W.2d 158, 1 61 (Tenn. App. 1981) (quoting Pace v. Garbage D isposal District of Washingt on Co unty, 54 Tenn. App. 263, 390 S.W.2d 461, 463 (1965)). A court will

not disturb a

reasonable decisio

n of an agency with expertise, e xperience, and know

ledge in the4 appropriate

field. Griffin v. State , 595 S.W.2d 96, 99 (Tenn. Crim. App. 1980). Southern Ry. Co. v. Sta

te Bd. of Equ alization , 682 S.W.2d 196 , 199 (Tenn. 1984). Clearly, the action of the AL J was su ppor ted by “subst antial and materialevidence” and neith er the trial court

nor this court may

“... substit

ute its judgment for that of the agency

as to the weight of t

he evidence on questions o f fact.” Tenn. Code Ann. § 4-5-322(h)(1998).

Ms. Crump’s cla

ims concerning d

ue process are equ

ally in firm. She
ar gues that her termination took place without notification of charges and a n opportunity to be hea rd. See Official Com p. of Tenn. R. & Regs., R. 1120- 10- .03(2); See also Tenn. Code Ann. § 8 -30 -331. Her asser tions of due process violations could only

be valid if the AL

J chose to believe the

testimony of

Ms. Crump in preference

to the testimony

of Mrs. Eddings. Clearly, she did not do
so. Thus Ms. Crump had not been terminated as

of the July 7, 199 5 meeting with Mrs. Eddings,and indeed, no adverse empl oyment act

ion had been taken pri

or t o July 24, 1995 when Ms. Crump was terminated and advised as to proper grievance procedure.
The statute governi

ng judicial review

under the UAPA i s plain: (h) The court may

affirm the de

cision of th e agency or remand the case for

further proceedings. The court may reverse or modify t

he decision if the ri

ghts of the petitio

n er have been prejudiced be cause the admi

nistrative findings, inferences, conclusions or decisions are: (1) In violation of c

onstitutional or statut

ory provisions; (2) In ex cess of the sta tutory a uthori ty of the agency; (3) Made upon unlawful procedure; (4) Arbitrary or

capricious or char

acterized by a

buse of discretion or clea

rly unwarran

ted exercise of discretion; or (5) Unsupported by evidence which is both substantial and material i

n the light of the entir

e record. In determining the substantiality of evidence, the court shall take into account whatev

er in the record f

airly detracts from its weight, but the cour

t shall not substitute its judgm ent for that of the agency a

s to the weigh

t o f the evidence on questions of fact. Tenn. Code Ann. §4-5-322 ( 1998). Ms. Crum p has failed to

show t hat any of these circumstances exis t.5 In such a case, the findin gs of fact and conclu sions of law o f th e administrative

tribunal should be and a

re affirme d in all respects. T

he cause is remandedfor such further pr oceedings as ma

y be necessary

below. Costs o n appeal are taxed a

gainst the appellant.

__________________________________ ___ WILLIAM B. CAIN, JUDGE CONCUR:

_________________________________________ WILLIA M C. KOCH, JR., JUDGE

_________________________________________ PATRICIA J. COTTRELL, JUDGE