# FILED
Ap ril 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

JAMES PRICE, ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 94-186-I VS. ) ) Appeal N o. ) 01A01-9508- CH-00336 TENNESSE

E CIVIL SER

VICE ) 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 Attorney Gen eral an d Reporte r James C. Fl oyd Assistant Attorney General



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Tenn. R. A pp. P. 10(b ) provide s: The Court, with the concurr ence of all judges participating in the case, may affir m, reverse or modify

the actions of the trial court by memorandum opinion when a formal opinion would haveno precedential value. When a case is decided

bymemorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.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 em ployee of the Tennessee D epartm ent of Mental Health and Mental Retardation who was terminated for using exces sive force against a resident at Green Valley Develo pment Center. T h e em ployee filed a petition for judi cial revi ew inthe Chanc ery C ourt for D avidson Count y alle ging thatthe Civil S ervice C omm ission’s decision to u

phold his ter

minat ion was not supported by substantial and material evidence. The trial court af firm ed the Commissi on’s term

ination orde

r, and the empl oyee has perfec ted th is ap peal. We have determ

ined that th e decision to term inate the employ ee is supp o rted by substantial and ma

terial e vidence a

nd, there for e, affirm

the trial

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

I.

James Price went to work for the D epartm

ent of Mental Hea

lth and Mental Retarda tion (“D MHMR”) in 1977 as a developmental technician at Green Valley DevelopmentalCenter. Prior to July 1994, he was a ssigned to the Maple Outward Boundsection of Maple Cottage where he was dir ectly responsible

for eight mildly retarde d boys between te n and thirte en yea rs of age. These residents were amongthe most physically difficult residents atGreen V alley . Most of them had behavior problems requi ring restr aint at on e time or another

.
Even though Mr. Price w as on annual leave for most of July1991, he w ent to Maple Cot

tage 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 Mar k Carter, anot her develo pmental techn ician, to en ter2 Mr. Carter received a one-da y suspension for fa

iling to report an incident of abuse. -3- his room and restrain him . Whil e Mr. C arter w as holding Ri cky M. ’s l egs, Mr. Price struc k the side of Ric ky 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 injure d and did not report the incident to his supervisor.

Mr. Price left Green

Valleyat 11:00 p.m. after the shift changed. L ater that
ev ening, Ricky M. began banging on doors and told Mark Shelton, another develop mental technician, that Mr. Price and Mr. Car ter had beaten him. Mr. Shelton con

tacted his supervisor

when he ob served a

bump on the side or

Ricky M.’s head and b lood tri ckling fro m one of his ears. The super visor im media tely summoned

a nurse , a doctor, and the Assistant Superintendent for Residential Service s. They took pictures of Ricky M.’s i njuries, and Ricky M. repeated that Mr. Carter

had held him dow n and that Mr. Price ha d hit him on the side o f the head.

Dr. Robert G. Er b, Green Valley ’s Supe rintendent , reca

lled Mr. Carter

to the facility

on the night t

he incident

took place . He inf

orme d Mr. Ca

rter tha t employees who obser

ve abuse but

fail to report it

were su bject toterm

ination. Mr. Carter admitted that

he and Mr. Pr ice had re strained R

icky M . but denie d at first thatany abuse had t aken place. Aft er being warn ed again th at he would “go down the tube” wit

h Mr. Pr ice if he did not tell the

truth, Mr. Carter recanted his earlier statem ents and admitted

that Mr. Price h ad struck Ricky M. in the he ad. He also stated that he w as afra

id of what

Mr. Pr ice m ight do to him if he did not cover up the incide nt. 2
Representatives of the DMHMR and the Departm ent of Huma

n S ervices interviewed Mr. Price on t he d ay a fter the incident. When que stioned abou t a bruiseon the knuckl es of his r ight hand, Mr. Pr

ice, w ho was rig ht-handed, could not explain how

he bruised

his knuckles . He al so 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 incide nt. Mr. Price c onceded tha t Ricky M. sustai ned a blo od y3 Tenn. Comp. R. & R egs. r. 0940-2-3 -.03(a)& (c) ( 1983) sta te that DMHMR employees shallnot “[k]nowingly threaten to touch, attempt to touch, or actually touch a resident or patient in any manner w

hich a re asonable

person w ould

recognize as likely to be harmful or pa inful or to cause me

ntal ang uish” or “ [k]nowingl

y e ngag e inany co nduct toward a resident or patient which a reasonable person would recog nize as brutal or cruel under the circumstances.” The rule also states that “[i]f an employee engag es in cond uct prohi bited by this rule, the emplo yee is guilty of conduct against the good of the se rvice, and the employee shall be dismissed. Such a violation is most likely to be determined to be gr oss misconduct.” -4- nose during the incident and admitted that he had not report ed the inci dent or

the inju ry.

Green Valley

officia ls determined

that Mr. Price had violated departmental regulation s prohibiting b rutali ty. 3 Followinga due proc ess heari ng on July 11, 1991, Green V alley

notified Mr. Pric e on July 12, 1991, t

hat h e was ter minated immedi atel y. Mr. Price appealed his termination to the Civil Service Comm ission after exhausting his grievance remedies within the DMH MR. T he Com missio n assigned the case to an adm inistrativ e law j udge who en tered an i nitial orde r on February 1, 1993 finding that the evidence supported Mr. Price’ s term ination. T he Comm ission entered a final order o n Nove mber 23, 1993 ado pting the administrative law jud ge’s initial order. Mr. Price filed a petition for judicial review of the Com

missio n’s dec ision inthe Chancery Cou rt fo r Dav ids on C oun ty. On May 22, 1995, the tri al court enter ed an o rder af firming the Co mmission ’s decision on the ground

that it wa s supported b y substa ntial and material evidence. This appe al follow ed.

II.

The only issue that

Mr. Pr ice rais es on this appea l is t hat th e Commissi on’s decision to uphold his terminat ion is not suppo rted by evidence which is bo th substantial and material in light of the entire record. H e insists that the DMHMR, the administrative law judge, and the Com mission er

red by bel ieving Ricky M. and Mr. Ca

rter ra ther than him and

Mr. Keller . Parti es who cha llenge cr edibility determ inations in administrative proceedings, like parties who take issue with credibili ty determ

inations in j udicial p roce edings, sho ulder a he avy ap pellate burden.4 The administrative law judge gave little weig ht to Ricky M.’s ve

r sion of the incident because of his history

of lying a

bout similar incidents.

-5- Trial and appellate courts employ the sam e stan dard when cal led upon to review the evidentiary foundation of a final administrati ve order. Estate of Street
v. State Bd. of

Eq ualization, 812 S.W .2d 583, 58 5 (Tenn. Ct. App. 1990). T he 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 evidenceor to substitute their j udgmen

t for that of theadministrative

fact-finder

. McClellan v. Board of Regent

s, 921 S.W.2d 684 , 693 (Te nn. 1996); Sanifill of Tenn., Inc. v. Tennessee Solid

Waste Dispos al Contr ol Bd., 907 S.W.2d 807, 810 (Tenn. 1995). Rather, it req uire s the court s to review the adm inistrativ e record

to determ

ine whether the agenc y’s decis ion is based on t he sort of r

elevant e vidence tha

t a reasonabl e person wo uld accept to support a rationa

l conclusion

or to furni sh a reasonably soundbasis for the action under consi deration. Southern R y. v. State Bd. of E qualization, 682 S.W.2d 196, 199 (Tenn. 1984).

Credibili ty determ

inations bas ed on a wit

ness’s demean or

are particula

rly within the province of administrat ive finder s-of-fact. See 1 Charles H. Koc h, Administrative Law and

Pra ctice § 6.5 4A, a t 29 0 (Su pp. 199 7). A cco rdi ngl y, reviewi ng courts c ustoma rily gi ve great weight to credibility determ inations based
on the fact -finder’ s opportunity to observe

the witne sses as they test if y. 2 Kenneth C. Davis & R

ichard J. Pierce, Jr., Administ rative Law

Treatise§ 11.2, at 183-84 (3d ed. 199 4); 2 Charl es H. Koch, Administrative Law and Practice § 9.16, at 204 (Supp. 1997).

We have car

efully reviewe d the adm

inistrativ e record

and find no basis to second-gue ss the administrative law judge’ s decision t hat Mr. C arter’ s version of the July 4, 1991 incident was m ore cred ible that th e version o f

Mr. Price and Mr. Kel ler. 4 In our opinion, Mr. Carter’s testim ony, coupled with both the physica l evid ence concerni ng Ricky M.’s c ondition and t

he bruises on Mr. Pr

ice’s r igh t hand, providesub stan tial a nd mater ial ev iden ce to s uppo rt the Commissi on’s decision to uphol d the DMHMR’s deci sion to t erminate Mr. Price.

III.-6- We affirm the trial court ’s order upholding the termination of Mr. Price from stateemplo ym

ent and re mand t

he case tothe trial court for whatever further proceedin gs may

be requir ed. W e also tax the cos ts to Jame s Price a nd his suret

y for which execution, if necessary, may issue.

________ __________

_______________

_ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_________________ SAMUEL L. LEWIS, JUDGE

_________________

_________________ BEN H. CANTRELL, JUDGE