IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

 September 3, 2003 Session

ARTHUR L. LYNN v. RANDY C. CAMP, COMMISSIONER, ET AL.

 Appeal from the Chancery Court for Davidson County

No. 01-3738-I Irvin H. Kilcrease, Jr., Chancellor

No. M2002-02708-COA-R3-CV - Filed October 22, 2003 

This case concerns a petition for judicial review filed in chancery court. The petition sought review

of the ALJ’s order affirming the Petitioner’s termination for sleeping on the job in violation of the

Arlington Development Center’s policy. The chancellor dismissed the Petition. We affirm the

Chancellor.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court 

Affirmed and Remanded

WILLIAM B. CAIN, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, J., and

JAMES L. WEATHERFORD, SR. J., joined.

Larry D. Woods, Nashville, Tennessee, for the appellant, Arthur L. Lynn.

Paul G. Summers, Attorney General & Reporter; Steven B. McCloud, Assistant Attorney General,

for the appellees, Randy C. Camp, Commissioner and Elisabeth Rukeyser, Commissioner of the

Tennessee Department of Mental Health and Developmental Disabilities.

OPINION

There is little dispute as to the material facts in this case. Arlington Developmental Center

(ADC) is an in-house care facility operated by the Tennessee Department of Mental Health and

Developmental Disabilities. The Holly Unit located in the Baker Building at ADC houses

developmentally disabled citizens none of whom are ambulatory or otherwise able to care for

themselves. The citizens in Holly Unit were considered more medically fragile than those

maintained in other areas of the facility and required particular vigilance due to their inability to care

for themselves or to articulate need for assistance.

Petitioner Arthur Lynn had for more than seven years been employed as a developmental

technician observing and assisting such developmentally disabled citizens. Developmental

technicians are required to check on each of the citizens assigned to them no less than every fifteen
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minutes and to observe the patients carefully, provide any care required such as changing the

patient’s position or supplying dry clothing, and to report any physical difficulties the patient might

have to the medical staff for treatment. The maximum number of citizens requiring direct

supervision that could be assigned to any one developmental technician was three patients and the

minimum number that could be assigned was one patient. The determination of which citizens

required one on one coverage and which should have one on two or one on three coverage was made

by a physician. Assignment of developmental technicians to three citizens per shift indicated that

they were less at risk for medical emergencies and needed less intensive care than did citizens

assigned staff assistance of one on one and one on two. At the beginning of each shift the supervisor

assigned the available technicians to one, two, or three patients according to the information given

about the patient’s staffing needs and the number of workers present for the shift. 

On the overnight shift of February 29 to March 1, 2000, Petitioner was working the ten

o’clock p.m. to six o’clock a.m. shift. At the beginning of the shift, Tennie Gales, developmental

technician supervisor for Holly Unit, assigned three developmentally disabled citizens to Petitioner’s

care. Petitioner was assigned to sit in a room with two of the citizens and to periodically go to a

separate room where the other citizen was located. All three of the citizens assigned to Mr. Lynn

were subject to seizures. Two of them were subject to hypothermic temperature variations and one

had a tracheotomy tube that required periodic observation to insure that no aspiration or other

blockage developed. During the shift at issue Holly had sixteen citizens and eight developmental

technicians with three of the Petitioner’s co-workers assigned two citizens each, three others

assigned with only one citizen each, and one other co-worker assigned three citizens. Patient-staff

ratios that night were at the maximum permitted with no overlapping coverage whereby the citizens

assigned to Mr. Lynn received attention from other staff as well as Mr. Lynn.

At approximately twelve thirty a.m. on March 1, 2000, Ms. Gales, while making her

supervisory rounds, discovered Petitioner asleep in a chair. She shook him to awaken him and told

him to check on the citizens assigned to him. When she returned a few minutes later to see if her

instructions had been followed she found Petitioner asleep again in the same position. She called

her supervisor for advice and was directed to have the duty nurse accompany her to where Petitioner

was sleeping. Ms. Gales returned to the room accompanied by nurse Rose Untal and found

Petitioner asleep. She then awakened the Petitioner and told him to leave the unit.

Petitioner does not dispute that he was found sleeping on duty. He explained at the hearing

before the Administrative Law Judge that he was suffering from allergies and sinus or cold-related

problems and had taken an over-the-counter Benadryl-type medication. Upon these facts, Assistant

Superintendent, Nina Staples, recommended that Petitioner be terminated. This recommendation

was concurred in by the Director of Human Resources at ADC and by letter dated March 7, 2000 the

Superintendent of ADC discharged Petitioner.

Consistent with Tennessee Department of Personnel Rule 1120-11-.05, Petitioner appealed

his termination and a hearing was held before Administrative Law Judge Margaret Robertson on

May 29, 2001. Judge Robertson denied Petitioner’s grievance and upheld the decision of ADC to
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terminate his employment. Mr. Lynn then filed his Petition for Review in the Chancery Court for

Davidson County and following a hearing on April 25, 2002, the Chancellor affirmed the decision

of the Administrative Law Judge finding that her decision was supported by substantial and material

evidence.

Petitioner filed a timely notice of appeal.

Before proceeding to Mr. Lynn’s issue on appeal the Court is constrained to note that prior

to the activity which led to the instant action, the grievant had a superior performance record. As

developmental technician Mr. Lynn earned several “superior” ratings in annual performance review.

Indeed, on February 1, 2000, one month prior to the date of this infraction, Mr. Lynn received yet

another overall rating of “superior” on his performance evaluation. 

The gravamen of the Petition appears in paragraphs 18 through 21 of the Complaint:

18. Petitioner has had a long career in state government with excellent

performance and enjoys an outstanding reputation.

19. Under such circumstances, termination of the petitioner was certainly

unwarranted. Further, the Department failed to use or follow statutory requirements

concerning progressive discipline.

20. Based upon the above, the actions of the respondents violate the due

process rights of Mr. Lynn, violate statutory provisions, are in excess of their

statutory authority, were made upon unlawful procedures, were made in an improper

manner, and were done in an arbitrary, capricious, abusive manner using a clearly

unwarranted exercise of discretion. Further, the decision below is unsupported by

evidence which is both substantial and material. In the alternative, the ADC sleeping

policy is void for vagueness.

21. For all these reasons, the termination of the petitioner should be

reversed. The respondents should be ordered to reinstate Mr. Lynn and to pay back

pay, benefits, and reasonable attorney’s fees pursuant to 42 U.S.C. §1983, 1988, et

seq. and costs. 

Tennessee Code Annotated section 4-5-322(h)(2001) sets out the appropriate standard of

review to be applied by the chancery court and is likewise binding upon this Court. Our supreme

court has provided the following guidance concerning the standard:

When reviewingan agency decision, the appropriate standard of review is that

set forth in the Administrative Procedures Act . . . In addition, such review is limited

to the record of the case. Tenn. Code Ann. § 4-5-322(g). Findings of fact made by

the agency may not be reviewed de novo by the trial or appellate courts, and courts

should not substitute their judgment for that of the agency as to the weight of the

evidence on factual issues. Southern Ry. Co. v. Tennessee Bd. of Equalization 682

S.W.2d 196, 199 (Tenn.1984); CF Indus. v. Tennessee Pub. Serv. Comm’n, 599
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S.W.2d 536 (Tenn.1980); National Council on Compensation Ins. v. Gaddis, 786

S.W.2d 240, 242 (Tenn.Ct.App.1989). However, the “substantial and material

evidence standard” in Tenn. Code Ann. § 4-5-322(h)(5) requires a searching and

careful inquiry that subjects the agency’s decision to close scrutiny. Wayne County

v. Solid Waste Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn.Ct.App.1988).

Further, construction of a statute and application of the law to the facts is a question

of law that may be addressed by the courts. See Beare Co. v. Tennessee Dept. of

Revenue, 858 S.W.2d 906 (Tenn.1993).

Sanifill of Tennessee, Inc. v. Tennessee Solid Waste Control Bd., 907 S.W.2d 807, 809-10

(Tenn.1995).

In this context, this Court is presented with the following issues on appeal:

I. Whether the ALJ considered and applied the wrong portion of ADC’s

sleeping policy to Mr. Lynn’s infraction;

II. Whether the ADC rule is void for vagueness under the U.S. and Tennessee

Constitutions;

III. Whether the chancery court failed to find that the commissioner wrongly

refused to apply Tennessee Code Annotated section 8-30-330. 

The following facts found by the commissioner, with which the chancellor concurred, and

to which Mr. Lynn admits, are of primary importance in the determination of these issues. Mr. Lynn

admits that he was asleep while on duty as a developmental technician for ADC. Mr. Lynn likewise

admits that he was asleep in the room occupied by two of the citizens over which he had charge. Mr.

Lynn likewise admits that he was required to check on these patients every fifteen minutes. Mr.

Lynn takes no issue with the statements of Nina Staples and Rose Untal taken before the

Administrative Law Judge, which indicate that twice he had to be shaken before he would wake.

Also of note is the fact that, of the sixteen citizens in the care of ADC on the night in question, none

of Mr. Lynn’s citizens were assigned to any other developmental technician in addition to Mr. Lynn.

In the hearing before the Administrative Law Judge, conflicting evidence was presented concerning

whether any other developmental technicians were in the room in which Mr. Lynn had fallen asleep

who could render aid to the citizens in Mr. Lynn’s direct care. That night Mr. Lynn was in charge

of three citizens. All three of these citizens were in a unit known for housing individuals requiring

tube feeding and periodic checks of tracheotomy tubes to avoid aspiration and asphyxiation. In

evaluating whether the petitioner’s termination was appropriate, the assistant director of ADC, Nina

Staples, evaluated all of these circumstances and applied the following pertinent sections of ADC’s

Policy on Employee Sleeping:

B. Disciplinary Action:

Any employee determined to be sleeping as specified in the aforementioned

Section V.A. shall be subject to disciplinary action according to the Rules of the
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Tennessee Department of Personnel (authority cited above in Section III). The Rule

allows the Supervisor and ADC Management discretion in determining disciplinary

action. Subsequent violations of categories “a” or “b” may result in progressive

disciplinaryaction. Individual circumstances (e.g., length of time between violations,

cause of sleeping, etc.) will be considered in these instances before action is taken.

1. Offenses and Corresponding Degrees of Disciplinary Actions

a. If an employee is determined to be sleeping and is not

responsible for direct citizen support, the employee will receive a

written warning. An offense such as this would not directly place

citizens at risk. [Example – a Support Series employee falls asleep at

a desk or an employee falls asleep during a Staff Development class.]

b. If an employee is determined to be sleeping and is responsible

for direct citizen support, yet the employee is discovered sleeping in

a setting where other employees, or co-workers, could at least account

for the sleeping employee’s citizen(s), the employee will receive a

five-day (5) suspension. An offense such as this would directly place

citizens at risk, although the risk may be considered ‘low’.

(Employees discovered sleeping who are responsible for 1:1 citizen

coverage fall within the subsequent category “c” regardless of

circumstance.) 

c. If an employee is determined to be sleeping and is responsible

for direct citizen support, and such a determination occurs in any

setting other than the type described in V.B.1.b., or creates significant

risk for the citizen, the employee will be terminated from

employment. Any employee discovered sleeping who is assigned 1:1

citizen coverage falls within this category. [Example – an employee

falls asleep while providing one-to-one coverage at a hospital or an

employee is discovered sleeping while assisting a citizen during

mealtime.]

The plain unambiguous language of the sleeping policy provides that sleeping on duty shall

subject a sleeping employee to disciplinary action. The plain language likewise accordsmanagement

discretion in determining the appropriate disciplinary action. Contrary to Appellant’s argument,

subsection (b) does not require all employees discovered sleeping to be suspended five days as a first

offense. The five day suspension provision only applies to employees “discovered sleeping in a

setting where other employees or co-workers could at least account for the sleeping employee’s

citizen(s).” With regard to whether other employees or co-workers could account for Mr. Lynn’s

assigned citizens, the proof before the Administrative Law Judge is conflicting. Tennie Gales

provided the following testimony:
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Q. And during that 30 minutes, or maybe 27 minutes until you and Nurse

Rose get there, the only citizen coverage for Brian and Calvin is Mr. Lynn, correct?

A. He was in the room.

Q. Was anybody else in the room?

A. No.

The following testimony given by Nina Staples, Assistant Superintendent for residential and

supported living at ADC, further explains the coverage controversy:

And then the next question would be: Was the employee working

with citizens, period; meaning was the employee assigned to citizens. And in this

instance, Mr. Lynn was assigned to three citizens that night.

The other question becomes a question of, if when he was discovered

asleep, was there someone else that could take care of or address the needs of this

citizen. And in the case of the room that he was in with Brian and Calvin, it was my

understanding that there may have been another person present, but that the other

person could not assume that responsibility because that other person had an

assignment. And if that person took on any more, then that person would have - - we

would have been out of our ratio. And our ratio - - the ratio for that other person

would have exceeded her ratio. And that was the reason why she would not have

been able to assume any additional responsibilities for citizen care.

In addition to the aforementioned testimony, the ALJ heard from Ronald Bruce, the Director

of Personnel; Tiffany Moffett, a former employee with ADC; Rose Untal, the nurse on duty at the

time of Mr. Lynn’s infraction, and Mr. Lynn himself. After the hearing the Administrative Law

Judge entered a fairly lengthy order in which it found, in pertinent part:

The preponderance of the evidence in this matter is that the Grievant’s

offense falls into category (c) rather than category (b), in spite of the testimony to the

contrary elicited from Ms. Staples. Category (c) applies to two types of situations,

which include a situation where an employee is assigned to 1:1 citizen coverage.

Category (c) applies when an employee is responsible for direct citizen support, and

is found sleeping in any setting other than that described in (b), that being a setting

in which other employees or co-workers could account for the citizens charged to the

care of the sleeping employee. Category (c) also applies when the employee’s

sleeping creates significant risk for the citizen(s) to whom he is assigned. In the

instant case, Grievant Lynn was directly responsible for three citizens. No other

employees were available to overlap with Grievant Lynn’s responsibilities. The

number of staff on duty that night was just enough to meet staffing requirements at

required levels for the number of citizens and the level of staffing their conditions

required. The loss of Mr. Lynn’s services that night required that his supervisor

assume direct care responsibility for three citizens in order for the unit to continue

to meet required staffing levels during the shift. 
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10. Sleeping by Mr. Lynn caused significant risk to the citizens assigned

to his care. These citizens were mentally retarded, non-ambulatory, had seizure

disorders and may have had feeding tubes, tracheostomies (sic), and vulnerability to

hypothermia. They required regular monitoring at brief intervals and the continual

presence of someone who could quickly observe a developing medical problem and

be able to make a timely call to a medical professional. The absence of oversight by

the staff member assigned to stand watch over them placed them at significant risk

because of their medically fragile conditions. Grievant Lynn’s argument that the fact

that the citizens assigned to him were suitable for assignment to a 3:1 citizen-to-staff

ratio meant that the situation was necessarily a low risk one and thus restricted to a

category (b) offense is not persuasive. Grievant Lynn’s sleeping on duty clearly falls

into category (c) both because of the lack of other employees to cover his dereliction

of duty and because of the medically fragile state of his charges. In category (b), the

risk is described as low because of the availability of other employees to shoulder the

responsibilities of the sleeping employee for his assigned citizens so that no coverage

is lost. Sleeping while responsible for coverage at the 1:1 staffing ratio is an extreme

example of a category (c) violation, not the only example. Grievant Lynn’s violation

of falling asleep while on duty clearly violates category (c) of the Employee Sleeping

policy, which directs that the appropriate discipline is termination. Therefore the

discipline applied to him, which was termination, was consistent with the policy.

The chancellor held that the Administrative Law Judge’s finding was supported by

substantial and material evidence. The Administrative Law Judge’s application of the sleeping

policy depended on the material facts presented in the Administrative hearing. It is well settled that

we do not substitute our judgment on appeal for that of the ALJ and the chancellor. Thus, we find

no error in the trial court’s dismissal of Mr. Lynn’s Petition for Review of the Administrative Law

Judge.

Regarding Appellant’s argument that the ADC rule is void for vagueness, the plain language

of the rule gives no room for doubt that sleeping on the job would subject the employee to discipline,

and that the enforcement of the provisions of the policy left no doubt as to the employees’ risks of

discipline and/or termination in the event of a violation. The findings are supported by substantial

and material evidence.

As for Appellant’s third issue concerning the progressive discipline language in Tennessee

Code Annotated section 8-30-330, the plain language of that statute as well as the sleeping policy

in place at ADC made it very clear that management retained broad discretion in describing those

situations warranting progressive discipline and those situations imposing such risk that progressive

discipline was not necessary. Section 330 provides that discipline be appropriate for the offense:

(a) The supervisor is responsible for maintaining the proper performance level,

conduct, and discipline of the employees under the supervisor’s supervision. When
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corrective action is necessary, the supervisor must administer disciplinary action

beginning at the lowest appropriate step for each area of misconduct.

(b) Any written warning or written follow-up to an oral warning which has been

issued to an employee shall be automatically expunged from the employee’s

personnel file after a period of two (2) years; provided, that the employee has had no

further disciplinary actions with respect to the same area of performance, conduct,

and discipline.

(c) When corrective action is necessary, the supervisor must administer disciplinary

action beginning at the step appropriate to the infraction or performance. Subsequent

infractions or poor performance may result in more severe discipline in accordance

with subsection (a).

Tenn. Code Ann. § 8-30-330 (1986).

The limited standard of review in this case does not permit this Court to second-guess the

wisdom of the judgment of ADC. The discussion by this Court in Papachristou v. University of

Tennessee, 29 S.W.3d 487 (Tenn.Ct.App.2000) is enlightening and reflectsthe limitations on judicial

control mandated by Tennessee Code Annotated section 4-5-322(h).

Tenn.Code Ann. § 4-5-322(h) states that upon judicial review of an agency’s

findings

(h) The court may affirm the decision of the agency or remand the case

for further proceedings. The court may reverse or modify the

decision if the rights of the petitioner have been prejudiced because

the administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion

or clearly unwarranted exercise of discretion; or clearly

unwarranted exercise of discretion; or

(5) Unsupported by evidence which is both substantial and

material in the light of the entire record.

In determining the substantiality of evidence, the court shall take into

account whatever in the record fairly detracts from its weight, but the

court shall not substitute its judgment for that of the agency as to the

weight of the evidence on questions of fact.

“Substantial and material evidence” has been defined as “ ‘such relevant

evidence as a reasonable mind might accept to support a rational conclusion and

such as to furnish a reasonably sound basis for the action under consideration.’ ”

Clay County Manor, Inc. v. State of Tennessee4, 8949 S.W.2d 755, 759 (Tenn.1993)

(quoting Southern Railway Co. v. State Board of Equalization, 682 S.W.2d 196, 199

(Tenn.1984)).

. . . . 
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When reviewing administrative decisions, the courts do not make de novo

decisions about the credibility of witnesses. Crass v. Tennessee Valley Authority,

460 F.Supp. 941 (D.C.Tenn.1978), aff’d 627 F.2d 1089 (6th Cir.1978). Neither the

trial court nor this court may review issues of fact de novo or substitute the court’s

judgment for that of the agency as to the weight of the evidence. Reece v. Tennessee

Civil Service Commission, 699 S.W.2d 808 (Tenn.Ct.App.1985). With substantial

and material proof in the record on which the University Chancellor’s findings could

be based, the action taken must be affirmed.

Papachristou v. University of Tennessee, 29 S.W.3d 487, 490-91 (Tenn.2000).

The temptation is strong to try to give relief to a man whose “superior” performance in the

past is unquestioned. There is, however, “evidence which is both substantial and material” in the

record to support the judgment of the Administrative Law Judge and of the Chancellor. At this

point, the appellate inquiry comes to an end.

The judgment of the trial court is in all respects affirmed. Costs of appeal are taxed against

Appellant for which execution may issue. 

___________________________________ 

WILLIAM B. CAIN, JUDGE