                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT MEMPHIS
                                       April 17, 2012 Session

    DONALD ROBINSON v. MEMPHIS-SHELBY COUNTY AIRPORT
                        AUTHORITY

                 Direct Appeal from the Chancery Court for Shelby County
                  No. CH-10-0006-3      Kenny W. Armstrong, Chancellor


                    No. W2011-02289-COA-R3-CV - Filed August 23, 2012


Petitioner, a police officer for the Memphis Airport Police Department (“MAPD”), was
terminated by the Memphis-Shelby County Airport Authority (“MSCAA”) for violating
several of its policies and procedures. On appeal to this Court, Petitioner argues that
MSCAA’s policies, and its application of those policies, violated his Fifth Amendment
privilege against self-incrimination. Petitioner also argues that MSCAA violated his equal
protection rights by applying its policies and procedures in a disparate fashion. After
throughly reviewing the record, we find no basis for Petitioner’s claims. Accordingly, we
affirm the judgment of the trial court.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Darrell J. O’Neal, Memphis, Tennessee, for the appellant, Donald Robinson.

Jonathan C. Hancock and Whitney M. Harmon, Memphis, Tennessee, for the appellee,
Memphis-Shelby County Airport Authority.

                                   MEMORANDUM OPINION 1


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This 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
                                                                                               (continued...)
                            I. Background and Procedural History

       Petitioner/Appellant Donald Robinson (“Mr. Robinson”) was employed by the
Respondent/Appellee MSCAA as a police officer for the MAPD for approximately five
years. On June 24, 2008, Darin Leake (“Investigator Leake”), an investigator with the
Memphis Fire Department, contacted Mr. Robinson and asked to interview him regarding
an alleged arson attempt that occurred on June 15, 2008. The alleged arson attempt occurred
at the home of Mr. Robinson’s girlfriend, with whom he had been residing. After Mr.
Robinson refused to be interviewed, Investigator Leake contacted Chief Robert Vester
("Chief Vester") of the MAPD and informed him that Mr. Robinson refused to be questioned
about the incident. Investigator Leake also informed Chief Vester that Mr. Robinson
threatened him during their phone conversation. On June 26, 2008, Chief Vester arranged
a meeting with Mr. Robinson, and after discussing the allegations of arson, told Mr.
Robinson to meet with Investigator Leake and “clear up this matter.” Thereafter, Mr.
Robinson met with Investigator Leake to discuss the alleged arson attempt.

        Following the meeting between Mr. Robinson and Chief Vester, the matter was
referred to the MAPD investigative unit for an internal investigation. On August 28, 2008,
as a result of the internal investigation, Mr. Robinson was notified the he was being charged
with violating several MSCAA and MAPD policies and procedures.2 Mr. Robinson’s alleged
violations were based on his elusive and uncooperative behavior during the Memphis Fire
Department’s investigation and his meeting with Chief Vester. After conducting an
administrative hearing on September 4, 2008, an MSCAA panel decided to terminate Mr.
Robinson. Mr. Robinson appealed his termination to the City of Memphis Civil Service
Commission (“the Commission”). Ultimately, on November 23, 2009, the Commission
determined that the MSCAA hearing was properly conducted, that Mr. Robinson’s conduct
provided a reasonable basis to support his termination, and that Mr. Robinson’s alleged




        1
         (...continued)
        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 any unrelated case.


        2
        Specifically, Mr. Robinson was charged with violating the following: (1) MSCAA Policy and
Procedure 407.3(1)(q) (“failure to cooperate with investigations or fact finding reviews”); (2) MAPD Policy
and Procedure Manual 01.02(IV)(C)(1)(o) and (r) (“failure to speak the truth at all times”); (3) MAPD Policy
and Procedure Manual 01.02(IV)(C)(3) (“unbecoming conduct”); and (4) MAPD Policy and Procedure
Manual 01.02, Law Enforcement Code of Ethics (sections related to integrity, cooperation with other officers
and agencies, and private life).

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policy and procedure violations were supported by a preponderance of the evidence.3

        On January 4, 2010, Mr. Robinson filed a petition for writ of certiorari in the Shelby
County Chancery Court. Mr. Robinson argued that he was terminated for refusing to waive
his Fifth Amendment privilege against self-incrimination, that the MSCAA policy requiring
him to cooperate with a criminal investigation in which he was a suspect was
unconstitutional, and that MSCAA violated his equal protection rights when it applied its
policy in a disparate fashion. On April 15, 2011, the trial court entered an order denying the
petition for writ of certiorari, finding that Mr. Robinson was not required to waive his Fifth
Amendment rights, he did not invoke his Fifth Amendment rights, and that MSCAA had a
reasonable basis to terminate him. Thereafter, on May 16, 2011, Mr. Robinson filed a motion
to alter or amend alleging that the trial court failed to rule on whether the Commission's
findings were in violation of his Fifth Amendment and equal protection rights. On
September 14, 2011, the trial court entered an order amending its previous ruling. In the
amended order, the trial court concluded that Mr. Robinson was not disciplined for invoking,
nor was he forced to waive, his Fifth Amendment rights, and further concluded that there was
no basis to support the argument that his equal protection rights were violated. On October
4, 2011, Mr Robinson filed a notice of appeal to this Court.

                                         II. Issues Presented

       Mr. Robinson presents the following issues, as restated, for our review:

       (1)       Whether the MSCAA’s written employment policy requiring
                 cooperation with investigations is an unconstitutional violation of an
                 employee’s Fifth Amendment privilege against self-incrimination,

       (2)       Whether the MSCAA violated Mr. Robinson’s Fifth Amendment


       3
           The Commission’s decision upholding Mr. Robinson’s termination provides:

       The Commission finds from all of the evidence that the conduct of Mr. Robinson in failing
       to report to this [sic] supervisors that he was the subject of the MFD investigation, in dealing
       with Mr. Leake, and in responding to MAPD supervisors and the MSCAA hearing panel,
       gave the hearing panel a reasonable basis to support its disciplinary decision to terminate
       Mr. Robinson’s employment. While the Commission acknowledges that Mr. Robinson was
       entitled to assert his Constitutional Rights in response to the MFD investigation, the manner
       in which he responded to Mr. Leake (evasive and threatening) and to his MAPD superiors
       (concealing, evasive and not forthright), were in violation of MAPD policies and
       procedures, and in particular, not in conformance with Law Enforcement Code of Ethics.


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              privilege against self-incrimination by terminating him based on
              violations of employment policies, and

       (3)    Whether MSCAA violated Mr. Robinson’s equal protection rights by
              applying its employment policies in a disparate fashion.

                                 III. Standard of Review

       Judicial review of this matter is governed by the Uniform Administrative Procedures
Act (“UAPA”). Tenn. Code Ann. § 27–9–114 (2000 & Supp. 2011); City of Memphis v.
Civil Serv. Comm'n of Memphis, 238 SW3d 238, 242 (Tenn. Ct. App. 2007). The UAPA,
provides, in pertinent part:

               (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
                       (5)(A) Unsupported by evidence that is both substantial
               and material in the light of the entire record.
                       (B) 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.
               (i) No agency decision pursuant to a hearing in a contested case shall
       be reversed, remanded or modified by the reviewing court unless for errors that
       affect the merits of such decision.
               (j) The reviewing court shall reduce its findings of fact and conclusions
       of law to writing and make them parts of the record.

Tenn. Code Ann. § 4–5–322(g)(h)(i) & (j) (2011).

       Accordingly, after confirming that the agency has used the correct legal principles,
the court must then review the factual findings and determine whether the agency had a
reasonably sound basis for making those findings. City of Memphis, 238 S.W.3d at 243

                                              -4-
(citation omitted). We and the trial court review an agency’s findings under the “substantial
and material evidence” standard. Id. (citation omitted). Substantial and material evidence
has been defined as “‘such relevant evidence as a reasonable mind might accept to support
a rational conclusion’” and which “furnish[es] a reasonably sound basis for the decision
under consideration.” Id. (quoting City of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311,
316 (Tenn. 2007) (quoting Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876
S.W.2d 106, 110–11 (Tenn. Ct. App. 1993))). We will take into account evidence in the
record that fairly detracts from the weight of the evidence, but will not substitute our own
judgment on questions of fact or re-weigh the evidence. Id. (citing see Tenn. Code Ann. §
4–5–322(h)(5)(B)). Additionally, we afford great weight to an agency’s determinations
regarding the credibility of witnesses who appear before it. Id. (citation omitted). We will
not reverse an administrative decision on the basis that the evidence could also support
another result. Id. (citation omitted). Rather, we will reverse an agency's determination
“only if a reasonable person would necessarily arrive at a different conclusion based on the
evidence.” Id.

                                        IV. Analysis

       On appeal, Mr. Robinson does not contend that MSCAA’s decision to terminate him
was not supported by substantial and material evidence. Instead, Mr. Robinson argues that
MSCAA’s policies, and its application of those policies, violated his Fifth Amendment
privilege against self-incrimination. Further, Mr. Robinson argues that MSCAA violated his
equal protection rights by applying its policies and procedures in a disparate fashion.

        We disagree. All that MSCAA required of Mr. Robinson was to cooperate during the
investigation. Mr. Robinson refused to cooperate. As the trial court emphasized, Mr.
Robinson was never disciplined for invoking his Fifth Amendment rights. In fact, Mr.
Robinson never invoked his Fifth Amendment rights. Nor was Mr. Robinson forced to waive
his Fifth Amendment rights. Instead, Mr. Robinson’s conduct throughout the investigation
was uncooperative, evasive, and raised serious concerns regarding his truthfulness. It was
this conduct that resulted in Mr. Robinson’s termination. The facts simply do not support the
Fifth Amendment issues that Mr. Robinson claims.

       Moreover, we agree with the trial court that no equal protection violation occurred.
The only evidence cited by Mr. Robinson was that other officers who were charged with
criminal activity were not terminated from their positions with MSCAA. As noted above,
however, Mr. Robinson was not terminated because he was charged with criminal activity.
Mr. Robinson was terminated based on his violation of multiple MSCAA and MAPD
policies and procedures arising out of his failure to cooperate during the investigation of the
criminal activity with which he was charged. No evidence was presented to show that these

                                              -5-
other individuals were similarly situated to Mr. Robinson beyond the fact that they were
charged with criminal activity. Thus, we agree with the trial court, and the Commission, that
Mr. Robinson’s equal protection argument is without merit. Accordingly, we affirm the
judgment of the trial court.

                                      V. Conclusion

        For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the Appellant, Donald Robinson, and his surety, for which execution may
issue if necessary.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




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