### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 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

W IL LI AM B. C AIN , J., del ivered the opinion of the court, in which P ATRIC IA J. C OTT RELL , J., and J AMES L. W EATHERFORD , S R

. J., joined.
Larry D. Woods, Nashville, Tennessee, for the appellant, Arthur L . Ly nn.
Paul G. Summers , Attorne y General & Repor ter; Steve n B. McClo

ud, Assista

nt Attorne

y General , for the appe llees, Ra ndy C. Ca mp, Commissioner and Elisabeth Rukeyser, Commissioner of the Tenness ee Depa

rtment of Mental He alth and D evelopme ntal Disa bilities.

OPINION

There is little dis puteas to the material facts in this case. Arlington Developmenta l Center (ADC) is an in-h ouse car e facili ty o perate d by

the Tennessee D epartme nt of Ment

al H ealth and Developmental Disabilities. The Holly Unit located in the Baker B uilding at ADC houses developm entally disa bled citizens none of whom are ambulatory or otherwise able to care for themselve s. The ci tize ns in Holl y Unit wer e cons idered more m edical ly fragi le 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 Ly

nn had for more than s ev en ye ars been employ ed as a developmental technician observing and assisting such dev elo pmentally disabled citizens. Developmental technicians are required to check on eac h of the citizens assigned to them no less than every fifteen-2-

minutes and to observe the patients carefully , provide any c are required such as chan g ing the patient’s position or supplying dry clothing, and

to report any phy sical difficulties the patient might have to the med

ic al 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 w hich 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 avai lable tec

hniciansto one, two, or three patients according to the infor mation given about the patient’s staffing needs and the number of workers present for the shift.

On the overnight shift of February 29 to Mar ch 1 , 2000, Petitioner was working the ten o’clock p.m. to six o’clocka.m. shift. At the beginning of the shift, Tennie Gales, developmental technician supervisor for Holly U nit, assigned three developmentally disabled citizens to Petitioner’ s care. Petitioner was assigned to sit in a room with two of the c itizens and to periodically go to a separa te room where the other citizen was loca ted. All three of the citizens assigned to Mr. L ynn were subject to

seizures. Two of the

m were su

bject to h ypothermic

temperature variations and one had a trac heotomy

tube that require d periodi c observ ation to ins ure that no aspira

tion or othe r block age developed. During the shift at issue Holl

y had sixteen citizens and eight developmental technicians with three of the Petitioner’s co-workers assigned two citizens each, three o thers assigned with only one citizen each, and one other co-worker assigne d three citizens. Patient-staff ratios that night were at the maximum permitted with no overlapping covera ge whereby

the citizens assigned to Mr. Ly

nn received attention from other staff as we ll as Mr. Ly

nn.

At ap pr ox im at el y tw el ve th ir ty a

. m. on March 1, 2000, Ms. Gales, while making her supervisory

rounds, d iscover ed Petition

er asle ep in

a chair. She shook

him to awa

ken him and told him to check on the citizens assigned to him. When she returned a few minutes late r to see if her instructions had been followed shefound Peti tioner a sleep ag ainin the same position. She called her supervisor for advice and was directe d to have the duty nurse accompany

her to where Petitioner
was sleeping. Ms. Gales returned to the room acc om pa ni ed by nurse Rose Untal and found Petitioner asleep. She then a

wakene d the Petiti oner and told him to le ave the u

nit.

Petitioner does not dispute that

he was found sleeping on duty . He explained at the hearing before the Ad mini strat ive Law J udge that he was suffering from allerg ies and sinus or cold-related problems and hadtaken an over-the-counter Be nadryl-ty pe medication. Upon these facts, Assistant Superinte ndent, Nina Staples, recommended that Petition er 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 bef ore Administrative Law Jud ge Margaret Rober tson on May 29, 2001. Jud

ge Robe rtson den ied Petitio ner’s g

rievanc e and uph

eld the deci sion of AD C to-3-

terminat e his employment. Mr. L ynn then filed his Petition for Review in the Chance ry Court for Davidson County and

following a hearing on April 25, 2002, the Chance llor affirmed

the decision of the Ad mini strat ive Law J udge finding that her decision was supported by substantial and material evidence.

Petitioner filed a timely

notice of appeal.

Before proceeding to Mr. L

ynn’s issue

on appeal the Court is constrained to note that prior to the activ

ity w hich led t o the insta

nt action, the grievant had a superior pe rformance record. As developmental technician Mr. Ly nn earned several

“superior” ratings in annual perfor mance review. Indeed, on February

1, 2000, one month prior to the date of this infraction, Mr. Ly nn received yet another overall rating of “super ior” on his performance evaluation.
The gr avamen o f the Petit

ion appea rs in par agrap hs 18 throu gh 21 of

the Compla

int:

18. Petitioner

has had a long career in state governm ent w ith excellent performance and enjoy s an outstanding reputation. 19. Under

such cir cumstanc es, termination of the petiti oner wa s certa

inly unwarranted. Further, the Department failed to use or fo llow statu

tory require ments concerning progre ssive discipline. 20. Based

upon the above, th

e action s of the r

esponde nts violate the due pro cess rights o f Mr. L

ynn , violate

statutory provision s, are in

excess of thei r statutory authority, were

made upon unlawful procedures, were ma de in an improper manner, and wer e don e in an ar bitrary , capric ious, abus ive manne r using a clearly unwarranted

exercise of discretion. Further, the decision below is unsupported b y evidence which is both substantial and material. In the alternative, the ADC sleeping policy is void for

vague ness. 21. For

all these reasons, the termination of the petitioner s h ould be reversed. The resp ondents should be or dered to reinstat e Mr. L ynn and to pay

back pa y, benefit s, and re asonable attorney’s f

ees 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 standar d of revi e w to be appl

ied by the chancery

court and is likewi se binding upon this Court. Our s upreme court has provided the following guidance concerning the standard:

When reviewing an a gency decision , the appr

opriate standar d of revi ew is th at 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 fa ct made by the agency

may not be reviewed de novo by t he trial o r appell ate cour

ts, and co urts should no t 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.198 4); CF Indus. v. Tennessee Pub. Serv. Comm’n , 599-4-

S.W.2d 5 36 (Tenn .1980); National Council on Com pensation Ins. v. G addis , 7 8 6 S.W.2d 240, 242 (Tenn.Ct.App.1989). However, the “substantial an d material evidence standard” in Tenn. Code Ann . § 4-5- 322(h)(5) requires a searching and careful inquiry that subjects the ag ency’s decision to close scrutiny. Way ne 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 fa cts is a question of law that may be a

ddressed by the c ourts. See Beare Co. v. Tenne ssee Dept. of Revenue , 858 S.W.2d 906 (Tenn.1993).
Sanifill of Tennessee, Inc. v. Tennessee Solid W aste Control Bd. , 90 7 S.W.2d 807 , 809-10 (Tenn.1995).

In thi s context, th

is Court is p

resente d with the f

ollowing issues on a

ppeal:

I. Whether

the AL J consi de red and applied the wrong portion of ADC’s sleeping policy

to Mr. Ly

nn’s infraction; II. Whether

the ADC rule is void for vagueness under the U.S. and Te nnessee Constitution s; III. Whether

th e cha ncery

court fa iled to find that the

commissioner wron gly 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. Ly

nn admits, are of p

rimary importanc e in the de

terminat ion of the se issues. Mr. Ly nn admits that he was asleep while on duty as a developmental technician for ADC. Mr. L

ynn likewise admits that he wa s asleep

in the room occupied by two of the citizens over which he had charge. Mr

. Ly nn likewise

admits that he was required to check on these patients eve ry fiftee n minutes. Mr. Ly nn takes n o issue with the statements of Nina Staples and Rose Untal taken before the Administrative L a w Judge, which indicate that twice he had to be shaken be fore 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. L ynn ’s citizen s were a ssigned to any other de

velopmental technicianin addition to Mr. Ly nn. In the hearing before the Administrative L aw Judge, conflicting evidence wa s presented concerning whether any other developmental technicians were in the room in which Mr. Ly nn had fallen asleep who could render aid to the citizens in Mr. Ly nn’s direct care. That night Mr. L ynn was in charge of three citizens. All three of these citizens were in a unit known for housing individuals requiring tube feeding

and peri odic che cks of tr acheoto my tu

bes to avo id aspira

tion and a sp hyxiation. In evaluating whether the petitioner’s termination was appropriate, the a ssistant director of ADC, Nina Staples, evaluated all of these circumstances and a pplied the following pertinent sections of ADC’s Poli cy on Empl oyee Sleep ing:

B. Disciplinary Action:
Any employee de

termined to be slee

ping as s pecifie d in the aforementioned Section V.A. sha

ll be subje ct to disci

plinary action a ccordin g to the R

u les of t he-5-

Tennessee Department of Personnel (authority cited above in Section II

I). The Rule allows the Supervisor

and ADC Management

discretion in determining disciplinary action. Subsequent violations of categories “a” or “ b” may re sult in progressive disciplinary action. Individual circumst ances ( e.g., l ength o f time bet ween vio lations, cause of sleeping, etc.) will be consider ed in these instances before action is taken.

1. Offenses and Corresponding Deg rees of Disciplinary

Actions

a. If an employee

is determ ined to be sleeping and is not responsi b le for direct citizen support, the employee will receive a written warning . An offe nse such a s t his 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 employ

ee is det ermined to be sleeping

and is re sponsible for direct c itizen suppo

rt, y et the emp loy ee is disc overed s leeping in
a setting where other employ ees, or co-workers, could at least ac count for the sleepi ng employee’s c itizen(s), the employee will rec eive a five-day (5) suspension. An offe

nse such a s this would

directly place ci tizens at risk, although the risk may be considered ‘l ow’

. (Employees discovered

sleeping who are responsible for 1:1 citizen
covera ge fall within the subsequ ent ca tegory “c” regardless of circumstance.)

c. If an employ

ee is det ermined to be sleeping

and is re sponsible for direct citizen support, and such a determination occurs in any setting other than the type descr ibed in V.B.1.b., or creates significant risk for the citizen, the employee wi ll be terminated from employ ment. Any employ

ee discovered sleeping

who is assigned

1:1 citizen coverage falls within this category . [ Example –an employee fall s asleep while providing one-to-one cover age at a hospitalor a n employee is di scove red sl eepin g whil e assi stin g a c itizen during mealtime.]

The plain unambiguous langua ge of th e sleepi ng polic y pr

ovides tha

t sleeping on duty shall subject a sleeping employee to disciplinary a ction. The plain language likewi se accords manag ement discretion in dete rmining the appr opriate disciplina

ry action. Co ntrary

to Appella

nt’s arg ument, subsection (b) does not require all employees discovered sleeping to be suspended f ive days as a first offense. The five day

suspension provision only applies to employ ees “discove red sleeping in a setting where o ther emp loy ees or c o-worke rs could a

t least ac count f

o r the sleeping employee’s citizen(s).” With regard to whether o ther employee s or co-workers could account for Mr. L ynn’s assigned citizens, the proof b efore the Administrative Law Judge is conflicting. Tennie Gales pr ov id ed th e fol lo wi ng te st im on y:-6- Q. And during that

30 minutes, or maybe 27 minutes until y ou and Nurs e Rose get the

re, the o nly

citizen coverage for Bria n and Calvin

is Mr. L ynn , corre ct? A. He was in

the room. Q. Was any

body else in the

room? A. No.

The following testimony given by Nina Staples, Assistant Superintendent for residential and
su pp or te d l iv in g a t A DC , f ur th er ex pl ai ns th e c ov er ag e c on tr ov er sy:
And then the next question would be: Was the employee working withcitizens, period; meaning was the employee assigned to citizens . An d in this instance , Mr. L

ynn was assig

ned to thr ee citize ns that nig

ht. The other que stion bec omes a question of, if when he was discovered asleep, was there someone else that could take car e 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 ha ve been anot

her person present, but that the other person could not assume that responsibility because that other

person had an assignm ent. And if tha

t person t ook on any

more, the n that per son would

have - - we would have been out of

our ratio. And our ratio - - the ratio for that other person would have exc eeded 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 Person nel; Tiff any Moffett, a forme

r employ ee with A DC; Rose Unta

l, the nurse on duty at the time of Mr. L

ynn ’s infra

ction, and Mr. L

ynn himself. A

fter the hearing the Admini stra tive Law Judge en tered a fairly lengthy order in which it f

ound, in pe

rtinent pa rt:

The preponderance of the evidence in this matter is that the Grievant’s offense falls into category

(c) rather than categ ory (b), in spite of the testimony to the contrary elicited from Ms. Staples. Category (c) applies to two type s of situati ons, which include a situation where an employ ee is assigned to 1:1 citizen coverage. Category (c) applies when an employ ee is responsible for

direct c itizen suppo

rt, and is found sleeping in any

setting other than that described in (b), that being a setting in which other

employees or c o-workers could account for the citizens charged to the
care of the sleeping employee. Category (c) also applies when

the empl oyee’s sleeping cre ate s significant risk for the citizen(s) to whom he is assigned. I n the instantcase, Grieva

n t Ly nn was directly r

esponsible for three citizens. No other employees were available to overlapwith Grievant Ly nn’s responsibilities. The number of staff on du ty that night was just enough to meet staffing requirements at required levels for the number of citizens and the level of staffing their c ondit ions requ ired. The loss of Mr. Ly nn’s services that night required that his supervisor
assume direct c are re sponsibilit

y f or three citizens in

order f or th e unit to continue to meet required staffing levels during the shift.-7- 10. Sleeping by Mr. L ynn caused sig

nificant risk to the citizens assigned to his care. These citizens wer e mental ly retarded, non-ambulatory, ha d seizure disorders and may have

had feeding

tubes, tr acheost omies (sic ), and vulnerabi lity to hypothermia. They required regular monitoring at brief intervals and the continual presenceof someone who could quickly observe a developing medicalproblem and be able to make a timely c all to amedical professional. The absence of oversight by the staff member assigned to stand w atch ove r them pla

ced them at signi ficant r

isk because of their medically f

ragile conditions. Grievant L ynn’s argument

that the fact that the citizens assigned

to him wer

e suitable for assig nment to a

3:1 citizen-to-staff ratio meant

th at th e s it ua ti on wa s n ec es sa ri ly a low risk one and thus restricted to a category (b) off ense is not persuasive. Grievan t Ly nn’s slee ping on d uty clearly falls into category

(c) both because of the lack of other employee s to cover his dereliction of duty and because of

the medically fr

agile state of his charge s. In categ ory (b), the risk is described as low because of the availability of other e

mployees to shoulder

the responsibilities of the sleeping employee for his assign ed cit izen s so t hat no covera ge is lost. Sleeping while

responsi ble for c overag e at the 1 :1 staffing rati o is an extre me example of a category

(c) violation, not the only example. Grieva ntLy nn’s violation of falling asleep w hile on dut

y c learly violates category

(c) of the Employ ee Sleeping po li cy, which directs that the appropriate discipline is termination. Therefore the di sc ip li ne ap pl ie d t o h im , w hi ch wa s t er mi na ti on , w as co ns is te nt wi th th e p ol ic y.
The chancellor held that the Administrative La w Judge’s finding was supported by substantial and material evidence. The Admini strative Law Judge’s applica tion of the sleeping policy depended on the material facts presented in the Administrative hearing. It is well settled that
we do not subst

ituteour judgment on appeal for that of the ALJ and the chance llor. Thus, we find
no error in the trial court’s dismissal of Mr. Ly nn’s Petition for Review of the Administrative Law Judge.
Regarding Appellant’s argument that the ADC rule is void for vague ness, the plain langua ge of the rule gives no room for doubt that

sleeping on the job w ould

subject the employee

to discipline, and that the enforcement

of the provisions of the policy lef tno doubt as to the employees’ r isks 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 progre ssive discipline language in Tennessee Code Annotate d section

8-30-330 , the plai n langua ge of th at statute

as well as the sleeping policy in place at

ADC made it very c lear

that mana

gement retaine d broad d

iscretio n in descr

ibing tho se situations warranting progre ssive 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 super viso r is respo nsible fo r maintaining the

proper p erforma

nce leve l, conduct, and discipline of the employees under the supervisor’s supervision. When-8-

correctiveaction is necessary , the supervis or must administer disciplinary action beginn ing at the lowest a

ppropria te step fo r each a rea of m isconduc t. (b) Any written war

ning or w ritten f

ollow-up to an oral warning which has been issued to an employee sha ll be automatically expun ged from the employee’ s personnel file after a period of two (2) y ears; provided, that the employ ee has had no further disciplina

ry actio ns with r espect t

o the same

area of perfor mance, c onduct, and discipline. (c) When corrective action is necessary , the supervisor must administer disciplinary action beginn

ing at the step ap

propria te to the infraction or

performance. Subsequent infractions or poor pe

rforman ce may result in more severe discipline in accordance with subsection (a). Tenn. Code Ann. § 8-30-330 (1986).

The limited sta

ndard of review in this case doe s not permit this Court to second-guess the wisdom of the jud

gment of ADC. The d

iscussion by t his Court in Papachristo u v. University of T ennessee , 29 S.W.3d 487 (Tenn.Ct.App.2000) is enlightening and reflec ts the limitations on judicia l 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 findi ngs (h) The court may af

firmthe decision of

the age ncy or rema nd the ca se for further proceedings. The c ourt may reve rse or modify the decision if the rights of the petitioner have been pre judiced b ecause the administrative findings, inferences, conclusions or decisions are: (1) In vio lation of c onstitution al or stat utory provision s; (2) In e xc es s o f t he st at ut or y au th or it y of th e a ge nc y; (3) Made upon unlawful procedure; (4) Arbitrary

or capricious or characterized by abuse of discr

etion
or clearly unw arranted exercise of discretion ; or clea rly 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 sha

ll take int o account whatever in the re cord fa

irly detracts from its weight, but the court shallnot substitute its judgment for that of the agency as to the weight of the ev idence o n question s of fac t. “Substa ntial and material evidence” has been de fined as “ ‘such releva

n t evidence as a reasonable mind might acce pt 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)).

. . . .-9- When reviewing administrative decisions, the courts do not make de novo decisions about the credibility of witnesse s. Crass v. Te nnessee Valley Au thority , 460 F.Supp. 941 (D.C.Tenn.1978), aff’d 627 F.2d1089 (6th Cir.1978). Neither the trial court nor

this court ma

y r eview iss ues of fa

ct de novo

or substitu

te 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 findi ngs 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 g ive relief to a man whose “superior” performance in the past is unquestioned. There is, however, “evidence w hich is bot h substantial and material” in the record t o s upport the

judgmen t of the Ad

ministrati ve La

w Judge a

nd of the C hancell or. At this point, the appellate inquiry come s to an end.

The judgment of the trial cou rt is in all r

espectsaffirme d. Costs of a ppeal ar e taxed ag ainst Appellant for which execution may issue.

___________________________________

WILL IAM B. CAI

N, JUDGE