                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 27, 2012 Session

SHERRIE L. DURHAM v. TENNESSEE DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT BY AND THROUGH JAMES NEELEY
              IN HIS OFFICIAL CAPACITY ET AL.

                Appeal from the Chancery Court for Davidson County
                    No. 101139-IV    Carol McCoy, Chancellor


                 No. M2011-01515-COA-R3-CV - Filed April 20, 2012


This petition was filed pursuant to the Tennessee Uniform Administrative Procedures Act.
The petitioner seeks judicial review of an administrative decision by the Tennessee Civil
Service Commission to uphold the termination of her employment with the Tennessee
Department of Labor. On motion by the petitioner, the entire administrative record was
struck from the record in the judicial proceedings. Having no administrative record upon
which to review the Department’s decision, the trial court dismissed the petition. We affirm.

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

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which R ICHARD H.
D INKINS, J. and J EFFREY S. B IVINS, S P. J., joined.

Sherrie L. Durham, Mt. Juliet, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and William J. Marett, Jr., Senior Counsel, for the Tennessee Department of Labor and
Workforce Development by and through James Neeley in his official capacity, Tennessee
Civil Service Commission by and through Deborah Storey in her official capacity, and Tre
Hargett in his official capacity.

                                        OPINION

      The petitioner, Sherrie L. Durham, an attorney, was hired to serve as an
Unemployment Hearing Officer 2 for the Tennessee Department of Labor and Workforce
Development (“the Department”) in June 1998. She worked in the Department’s
McMinnville office until 2005 when she was transferred to the Cookeville office.
       Soon after her transfer to Cookeville, she had conflicts with her supervisors and other
Department employees. The conflicts continued and escalated for over a year. In June 2007,
after several oral and written warnings and a three-day disciplinary suspension, the
Department recommended that Ms. Durham be terminated for repeated acts of
insubordination, in violation of Department of Personnel Rule 1120-10-.06(4), (18), & (24)
Tenn. Comp. R. & Regs. 1120-10-.06 (2007) (“Failure to maintain satisfactory and
harmonious working relationships with fellow employees; refusal to accept a reasonable and
proper assignment from an authorized supervisor”). The Commissioner of the Department
approved the recommendation, and Ms. Durham was terminated on June 22, 2007. Following
a series of lengthy administrative hearings, the administrative law judge issued an initial
order upholding the termination on July 20, 2009, and on May 18, 2010, the Tennessee Civil
Service Commission (“Commission”) adopted the ALJ’s order in its entirety.1

        Having exhausted the administrative appeals process, Ms. Durham filed the instant
Petition for Judicial Review (“the Petition”) in the Davidson County Chancery Court on July
16, 2010, pursuant to the Tennessee Uniform Administrative Procedures Act for judicial
review of contested cases, Tennessee Code Annotated § 4-5-322. Ms. Durham, an attorney,
filed the Petition pro se. The Petition alleged, inter alia, that, in terminating Ms. Durham’s
employment, the Commission violated her rights to due process, free speech, and equal
protection under the Tennessee and United States Constitutions, and that the decision was
arbitrary, capricious, and not supported by substantial and material evidence.

       Over the course of the judicial proceedings, the Commission filed two separate
motions to dismiss. The first motion was on the grounds that the Commission was not served
with the Petition until September 10, 2010; the delay, the Commission argued, rendered
service insufficient. Finding the delay was partially due to the fact that Ms. Durham had a
related matter pending in the 19th judicial district,2 the trial court denied the motion and
ordered the Commission to file the administrative record, which it did on November 22,
2010.



        1
         As this opinion explains, Ms. Durham had the administrative record stricken from the Chancery
Court record. We have included this brief summary of the administrative proceedings as background
information to make the history of this case more clear.
        2
          The Petition was originally assigned to Chancellor Perkins in the Davidson County Chancery Court,
  th
20 judicial district. Chancellor Perkins recused himself, and the case was transferred to Chancellor McCoy
who sua sponte transferred the case to Judge Hicks in the 19th judicial circuit for consolidation with the
related case, docket No. 10-654-I (which involved claims against Chancellor Bonnyman). Thereafter, Judge
Hicks dismissed docket No. 10-654-I, and transferred this case back to Chancellor McCoy who presided over
the case to its conclusion.

                                                   -2-
        The Commission filed a second motion to dismiss on January 6, 2011, on the grounds
that Ms. Durham had not yet filed a brief supporting the Petition, in violation of local court
rules concerning judicial review of administrative decisions. The local rules require that
briefs be filed in all cases heard by the court upon the record from an administrative tribunal
or agency and “if a petitioner-appellant fails to file his or her brief within the time provided
by this rule or within the time ordered by the court, the action may be dismissed and the
agency decision affirmed.” Tenn. 20th J. Dist. Ct. R. § 25.01. The rules also require that the
petitioner “must file and serve a brief within thirty (30) days after the record is filed. . . .
Upon motion of a party or upon its own motion, the court may enlarge or shorten the time for
filing briefs.” Tenn. 20th J. Dist. Ct. R. § 25.02. The trial court denied the Commission’s
second motion to dismiss, and ordered Ms. Durham to file her brief by April 4, 2011.

        The judicial proceedings took an abrupt turn on March 11, 2011 when, instead of
filing a brief as ordered, Ms. Durham filed a “Motion to Alter or Amend and Motion to Limit
Brief to Constitutional Violations and Motion to Take Additional Evidence.” In the motion,
she argued, inter alia, that the administrative record should be stricken from the judicial
proceedings in its entirety because it was filed more than 45 days after service of the Petition,
in violation of Tennessee Code Annotated § 4-5-322(d). The Commission was served with
process on September 10, 2010; the administrative record was filed November 22, 2010,
seventy-three days after service of process. Furthermore, Ms. Durham argued that the trial
court erred by granting the Commission an extension for filing the record, until November
22, 2010, because the extension was granted after the 45-day deadline had passed.

       When Ms. Durham’s motion came on for hearing, the trial court explained that
Tennessee Code Annotated § 4-5-322(d) permitted the court to extend the deadline for filing
the administrative record, and that such an extension was warranted in this case for the same
reasons the court granted Ms. Durham additional time for serving the Petition and for filing
her brief. More importantly, the trial court emphasized, repeatedly, that it was not in her
interest to strike the administrative record. The trial court went on to explain this was
because, in the absence of an administrative record, the court could not review the
Commission’s decision and, thus, the termination of her employment would be affirmed. The
foregoing warnings notwithstanding, Ms. Durham insisted that the administrative record be
stricken. After noting that she was an attorney and a former state unemployment appeals
hearing officer, the trial court stated that it “reluctantly” granted Ms. Durham’s motion and
struck the administrative record from the judicial proceedings.

       Thereafter, Ms. Durham filed a Motion for Judgment on the Pleadings, which the trial
court denied. For its part, the Commission filed a Motion to Dismiss, which the trial court
granted. This appeal by Ms. Durham followed.



                                               -3-
                                         A NALYSIS

       Courts defer to the decisions of administrative agencies when those agencies are
acting within their area of specialized knowledge, experience, and expertise. Wayne County
v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279-80 (Tenn. Ct. App.
1988). As such, judicial review of an agency’s action is governed by the narrow standard
contained in Tenn. Code Ann. § 4-5-322(h) rather than the broad standard of review used in
other civil appeals. Willamette Indus., Inc. v. Tennessee Assessment Appeals Comm’n, 11
S.W.3d 142, 147 (Tenn. Ct. App. 1999) (citing Wayne County, 756 S.W.2d at 279-80).

       The trial court may reverse or modify the decision of the agency only if the
petitioner’s rights 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
       (5)(A) Unsupported by evidence which is both substantial and material in the
              light of the entire record.

Tenn. Code Ann. § 4-5-322(h)(1)-(5)(A). The trial court may not substitute its judgment
concerning the weight of the evidence for that of the agency as to questions of fact. Tenn.
Code Ann. § 4-5-322(h)(5)(B); see also Jones v. Bureau of TennCare, 94 S.W.3d 495, 501
(Tenn. Ct. App. 2002). The same limitations apply to the appellate court. See Humana of
Tennessee v. Tennessee Health Facilities Comm’n, 551 S.W.2d 664, 668 (Tenn. 1977)
(holding the trial court, and this court, must review these matters pursuant to the narrower
statutory criteria).

        Under this limited scope of review, a petitioner “may only prevail if [she] establishes
that the agency’s decision” meets one of the five conditions listed above. Cope v. Tennessee
Civil Serv. Comm’n, No. M2008-01229-COA-R3-CV, 2009 WL 1635140, at *9 (Tenn. Ct.
App. June 10, 2009). The narrow review of the agency decision “shall be conducted by the
court without a jury and shall be confined to the record.” Tenn. Code Ann. § 4-5-322(g)
(emphasis added). Further, no agency decision resulting from a hearing in a contested case
shall be reversed or modified by the reviewing court “unless for errors which affect the
merits of such decision.” Tenn. Code Ann. § 4-5-322(i).




                                              -4-
       The administrative record was struck from the judicial proceedings upon Ms.
Durham’s motion and repeated insistence. Because there is no record for the court to review,
Ms. Durham is unable to establish that the Commission’s decision to terminate her
employment was in violation of her constitutional rights, in excess of the Commission’s
statutory authority, upon unlawful procedure, or that it was arbitrary, capricious, or
unsupported by material evidence. Tenn. Code Ann. § 4-5-322(h)(1)-(5)(A). In the absence
of any such proof, the trial court was required to defer to the decision of the Commission. See
Wayne County, 756 S.W.2d at 279-80. For these reasons, the trial court did not err in
dismissing the Petition.

                                      I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against Petitioner, Sherrie L. Durham.


                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




                                              -5-
