FILED

April 25, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

JAMES PRICE, )

)

Plaintiff/Appellant, )

) Davidson Chancery

) No. 94-186-I

VS. )

) Appeal No.

) 01A01-9508-CH-00336

TENNESSEE CIVIL SERVICE )

COMMISSION, )

)

Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

For the Plaintiff/Appellant: For the Defendant/Appellee:

J. Ronnie Greer Charles W. Burson

Greeneville, Tennessee AttorneyGeneral and Reporter

James C. Floyd

Assistant Attorney General

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1

 Tenn. R. App. P. 10(b) provides:

The Court, with the concurrence of all judges participating in the case,

may affirm, reverse or modify the actions of the trial court by memorandum

opinion when a formal opinion would have no precedential value. When a case

is decided by memorandum opinion it shall be designated "MEMORANDUM

OPINION," shall not be published, and shall not be cited or relied on for any

reason in a subsequent unrelated case.

-2-

MEMORANDUM OPINION

This appeal involves an employee of the Tennessee Department of Mental

Health and Mental Retardation who was terminated for using excessive force

against a resident at Green Valley Development Center. The employee filed a

petition for judicial review in the Chancery Court for Davidson County alleging

that the Civil Service Commission’s decision to uphold his termination was not

supported by substantial and material evidence. The trial court affirmed the

Commission’s termination order, and the employee has perfected this appeal. We

have determined that the decision to terminate the employee is supported by

substantial and material evidence and, therefore, affirm the trial court in

accordance with Tenn. R. App. P. 10(b).1

I.

James Price went to work for the Department of Mental Health and Mental

Retardation (“DMHMR”) in 1977 as a developmental technician at Green Valley

Developmental Center. Prior to July 1994, he was assigned to the Maple Outward

Bound section of Maple Cottage where he was directly responsible for eight

mildly retarded boys between ten and thirteen years of age. These residents were

among the most physically difficult residents at Green Valley. Most of them had

behavior problems requiring restraint at one time or another. 

Even though Mr. Price was on annual leave for most of July 1991, he went

to Maple Cottage on July 4, 1991 to complete some paperwork. While Mr. Price

was at Maple Cottage, one of his charges, Ricky M., had a violent tantrum that

required Mr. Price and Mark Carter, another developmental technician, to enter
2Mr. Carter received a one-day suspension for failing to report an incident of abuse.

-3-

his room and restrain him. While Mr. Carter was holding Ricky M.’s legs, Mr.

Price struck the side of Ricky M.’s head with his fists “once or twice.” Ricky M.

stopped struggling soon after Mr. Price struck him. Mr. Carter did not notice that

Ricky M. was injured and did not report the incident to his supervisor.

Mr. Price left Green Valley at 11:00 p.m. after the shift changed. Later that

evening, Ricky M. began banging on doors and told Mark Shelton, another

developmental technician, that Mr. Price and Mr. Carter had beaten him. Mr.

Shelton contacted his supervisor when he observed a bump on the side or Ricky

M.’s head and blood trickling from one of his ears. The supervisor immediately

summoned a nurse, a doctor, and the Assistant Superintendent for Residential

Services. They took pictures of Ricky M.’s injuries, and Ricky M. repeated that

Mr. Carter had held him down and that Mr. Price had hit him on the side of the

head.

Dr. Robert G. Erb, Green Valley’s Superintendent, recalled Mr. Carter to

the facility on the night the incident took place. He informed Mr. Carter that

employees who observe abuse but fail to report it were subject to termination. Mr.

Carter admitted that he and Mr. Price had restrained Ricky M. but denied at first

that any abuse had taken place. After being warned again that he would “go down

the tube” with Mr. Price if he did not tell the truth, Mr. Carter recanted his earlier

statements and admitted that Mr. Price had struck Ricky M. in the head. He also

stated that he was afraid of what Mr. Price might do to him if he did not cover up

the incident.2

Representatives of the DMHMR and the Department of Human Services

interviewed Mr. Price on the day after the incident. When questioned about a

bruise on the knuckles of his right hand, Mr. Price, who was right-handed, could

not explain how he bruised his knuckles. He also stated that he, Mr. Carter, and

Jeff Keller had been required to restrain Ricky M. and that he had not struck Ricky

M. during this incident. Mr. Price conceded that Ricky M. sustained a bloody
3Tenn. Comp. R. & Regs. r. 0940-2-3-.03(a) & (c) (1983) state that DMHMR employees

shall not “[k]nowingly threaten to touch, attempt to touch, or actually touch a resident or patient

in any manner which a reasonable person would recognize as likely to be harmful or painful or

to cause mental anguish” or “[k]nowingly engage in any conduct toward a resident or patient

which a reasonable person would recognize as brutal or cruel under the circumstances.” The rule

also states that “[i]f an employee engages in conduct prohibited by this rule, the employee is

guilty of conduct against the good of the service, and the employee shall be dismissed. Such a

violation is most likely to be determined to be gross misconduct.”

-4-

nose during the incident and admitted that he had not reported the incident or the

injury.

Green Valley officials determined that Mr. Price had violated departmental

regulations prohibiting brutality.3

 Following a due process hearing on July 11,

1991, Green Valley notified Mr. Price on July 12, 1991, that he was terminated

immediately. Mr. Price appealed his termination to the Civil Service Commission

after exhausting his grievance remedies within the DMHMR. The Commission

assigned the case to an administrative law judge who entered an initial order on

February 1, 1993 finding that the evidence supported Mr. Price’s termination. The

Commission entered a final order on November 23, 1993 adopting the

administrative law judge’s initial order. Mr. Price filed a petition for judicial

review of the Commission’s decision in the Chancery Court for Davidson County.

On May 22, 1995, the trial court entered an order affirming the Commission’s

decision on the ground that it was supported by substantial and material evidence.

This appeal followed.

II.

The only issue that Mr. Price raises on this appeal is that the Commission’s

decision to uphold his termination is not supported by evidence which is both

substantial and material in light of the entire record. He insists that the DMHMR,

the administrative law judge, and the Commission erred by believing Ricky M.

and Mr. Carter rather than him and Mr. Keller. Parties who challenge credibility

determinations in administrative proceedings, like parties who take issue with

credibility determinations in judicial proceedings, shoulder a heavy appellate

burden.
4The administrative law judge gave little weight to Ricky M.’s version of the incident

because of his history of lying about similar incidents. 

-5-

Trial and appellate courts employ the same standard when called upon to

review the evidentiary foundation of a final administrative order. Estate of Street

v. State Bd. of Equalization, 812 S.W.2d 583, 585 (Tenn. Ct. App. 1990). The

substantial and material evidence standard of review in Tenn. Code Ann. § 4-5-

322(h)(5) (Supp. 1996) does not permit the courts to reweigh the evidence or to

substitute their judgment for that of the administrative fact-finder. McClellan v.

Board of Regents, 921 S.W.2d 684, 693 (Tenn. 1996); Sanifill of Tenn., Inc. v.

Tennessee Solid Waste Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995).

Rather, it requires the courts to review the administrative record to determine

whether the agency’s decision is based on the sort of relevant evidence that a

reasonable person would accept to support a rational conclusion or to furnish a

reasonably sound basis for the action under consideration. Southern Ry. v. State

Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984).

Credibility determinations based on a witness’s demeanor are particularly

within the province of administrative finders-of-fact. See 1 Charles H. Koch,

Administrative Law and Practice § 6.54A, at 290 (Supp. 1997). Accordingly,

reviewing courts customarilygive great weight to credibility determinations based

on the fact-finder’s opportunity to observe the witnesses as they testify. 2

Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 11.2, at

183-84 (3d ed. 1994); 2 Charles H. Koch, Administrative Law and Practice § 9.16,

at 204 (Supp. 1997).

We have carefully reviewed the administrative record and find no basis to

second-guess the administrative law judge’s decision that Mr. Carter’s version of

the July 4, 1991 incident was more credible that the version of Mr. Price and Mr.

Keller.4

 In our opinion, Mr. Carter’s testimony, coupled with both the physical

evidence concerning Ricky M.’s condition and the bruises on Mr. Price’s right

hand, provide substantial and material evidence to support the Commission’s

decision to uphold the DMHMR’s decision to terminate Mr. Price. 

III.
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We affirm the trial court’s order upholding the termination of Mr. Price

from state employment and remand the case to the trial court for whatever further

proceedings may be required. We also tax the costs to James Price and his surety

for which execution, if necessary, may issue.

__________________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

SAMUEL L. LEWIS, JUDGE

__________________________________

BEN H. CANTRELL, JUDGE