                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                            Assigned On Briefs September 29, 2011

       RICHARD BARROM v. CITY OF MEMPHIS CIVIL SERVICE
                        COMMISSION

                 Direct Appeal from the Chancery Court for Shelby County
                    No. CH-09-0711-2     Arnold B. Goldin, Chancellor


                   No. W2011-01248-COA-R3-CV - Filed November 9, 2011


The Memphis Police Department terminated the employment of Petitioner Police Officer for
conduct unbecoming an officer following a physical altercation with a parking lot attendant.
On appeal pursuant to the Uniform Administrative Procedures Act, the chancery court
affirmed. On appeal to this Court, Petitioner asserts the trial court erred by refusing to admit
additional evidence of disparate treatment in violation of his equal protection rights. We
vacate and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in
                     part, Affirmed in part, 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, Richard Barrom.

Andre B. Mathis, Memphis, Tennessee, for the appellee, City of Memphis Civil Service
Commission.

                                   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
       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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
       Petitioner/Appellant Richard Barrom (Mr. Barrom) was employed by
Defendant/Appellee Memphis Police Department (“the Department”) as a police officer for
approximately sixteen years. On November 9, 2001, he was involved in a physical
altercation with an attendant of the parking lot across the street from the Criminal Justice
Center in Memphis. The attendant apparently had previously engaged in an oral dispute with
Mr. Barrom’s pregnant wife (Ms. Barrom), who also was a police officer. After being
notified of the dispute, Mr. Barrom confronted the parking lot attendant and the physical
confrontation ensued. The confrontation occurred before on-lookers and was partially
observed by other police officers. Mr. Barrom was on duty but dressed in plain clothes when
the incident occurred.

        Following an investigation of the matter, an administrative hearing was held on
September 9, 2003, and Mr. Barrom’s employment with the Department was terminated
pursuant to DR-104 for conduct unbecoming a police officer. Mr. Barrom appealed to the
Civil Service Commission (“the Commission”), which heard the matter on January 23, 2009.
The Commission unanimously sustained the Department’s action, and Mr. Barrom filed a
petition for writ of certiorari pursuant to Tennessee Code Annotated § 27-9-101, et seq., and
§ 4-5-322 in the Chancery Court for Shelby County on April 3, 2009. In his petition, Mr.
Barrom asserted that the Department’s decision to terminate his employment “was excessive
in light of the treatment received by other officers for similar conduct or worse.”

        In February 2010 and January 2011, Mr. Barrom filed motions for leave to present
additional evidence in the trial court. In his identical motions, Mr. Barrom asserted that,
prior to the hearing before the Commission, he had requested “all evidence on individuals
that were similarly situated,” and that his attorney had “numerous conversations about
similarly situated individuals with the City Attorney and nothing was provided until right
before the hearing.” Mr. Barron specifically contended that “the Director’s son” had been
involved in a racially motivated fight at the FedEx forum, had lied to police officers, and had
received a DUI. He further asserted that the same person had “changed his name so as not
to be discovered by others that had received discipline for similar conduct.” Mr. Barrom
asserted, “[o]ther officers have committed more egregious acts . . . and have received less or
no punishment for their conduct.” Mr. Barrom requested a hearing to determine whether the
Department had violated his rights to equal protection by disparately applying the
disciplinary rules. The trial court denied Mr. Barrom’s motion.

        The trial court heard the matter on April 7, 2011. By order entered April 21, 2011,
the trial court determined that the Commission’s decision was supported by substantial and
material evidence. The trial court “declined to consider” Mr. Barrom’s equal protection
argument, and sustained the Commission’s decision. Mr. Barrom filed a timely notice of
appeal to this Court.

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                                     Issue Presented

      Mr. Barrom raises one issue for our review:

      Whether the trial court erred when it refused to consider or hear the
      Appellant’s constitutional arguments.

                                   Standard of Review

      Judicial review of this matter is governed by the Uniform Administrative Procedures
Act (“UAPA”). Tennessee Code Annotated § 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:

              (g) The review shall be conducted by the court without a jury and shall
      be confined to the record. In cases of alleged irregularities in procedure before
      the agency, not shown in the record, proof thereon may be taken in the court.
              (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).

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        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
(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.

                                         Discussion

        In the present appeal, Mr. Barrom does not argue that the Department’s determination
that he violated DR-104 by conduct unbecoming an officer is not supported by substantial
and material evidence. Rather, he asserts that the Department’s decision to terminate his
employment should be reversed on the grounds that the Department applied the disciplinary
rules inconsistently. Mr. Barrom asserts that other police officers who were disciplined for
acts similar to those for which he was disciplined were not terminated, but were disciplined
less harshly. He contends that the trial court erred by denying his motion for leave to present
additional evidence to support this contention and by refusing to consider his equal protection
argument.

        We first address the trial court’s order with respect to Mr. Barrom’s equal protection
assertion. That portion of the court’s order addressing Mr. Barrom’s equal protection claim
states, in its entirety:

       Additionally, Petitioner raised a constitutional equal protection argument
       which this [c]ourt declined to consider.

The trial court provided no basis for its decision to decline to consider Mr. Barrom’s equal
protection claim.

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       In their briefs, the parties present opposing arguments with respect to whether Mr.
Barrom could present his equal protection claim for the first time on appeal to the chancery
court. Both parties rely on Richardson v. Tennessee Board of Dentistry, 913 S.W.2d 446
(Tenn. 1995) in support of their arguments. Upon review of the transcript of the proceedings
before the Commission, however, we are satisfied that Mr. Barron substantively asserted his
equal protection claim during the course of the January 23, 2009, hearing, by calling Kam
Wong (Mr. Wong) to testify concerning disciplinary action taken against him for his
involvement in a physical altercation. The Department objected to Mr. Wong’s testimony
based on the length of time that had transpired since the altercation involving Mr. Wong,
although counsel for Mr. Barrom asserted that the case remained open. The Commission
Chairman stated that the incident was “remote, and . . . not a similar set of facts[.]”

        We observe, however, that Mr. Barrom was not permitted to question Mr. Wong with
respect to his alleged conduct, the circumstances surrounding it, or the disciplinary action
taken by the Department in response. Further, other than establishing that the alleged
conduct occurred some twelve years prior to the 2009 hearing, the Commission permitted
little questioning with respect to the charges against Mr. Wong. It is therefore impossible
to determine the basis for the Commission’s conclusion that Mr. Wong’s acts were not
“similar.” We note, moreover, that although Mr. Wong’s alleged conduct occurred in 1997,
approximately twelve years before the 2009 hearing, it occurred within four years of the 2001
conduct for which Mr. Barrom was terminated.

    In its February 23, 2009, decision to terminate Mr. Barrom’s employment, the
Commission determined that

       because of Barrom’s conduct at the scene, his attempts to resolve an alleged
       dispute that his wife had apparently just had with the [p]arking [l]ot attendant,
       had unnecessarily escalated out of control, that Barrom had physically
       assaulted the [p]arking [l]ot attendant in the presence of a crowd of onlookers,
       and that numerous MPD officers and citizens had become involved as
       responding law enforcement officers and as witnesses to the incident.

The Commission unanimously concluded that Mr. Barrom’s conduct had been unprofessional
and inappropriate, and that it reflected negatively on the police department. There is
substantial and material evidence in the record to support this determination.

       The Commission did not, however, address Mr. Barrom’s assertion that Mr. Wong had
received disparate treatment for similar conduct. Rather, as noted, it disallowed questioning
of Mr. Wong. Thus, although not fully adjudicated, Mr. Barrom’s equal protection claim
arising out of alleged disparate treatment for a similar defense was raised substantively in the

                                              -5-
proceedings before the Commission. The Commission, however, declined to address Mr.
Barrom’s assertion in its decision.

       We next turn to the trial court’s order denying Mr. Barrom’s motion for leave to
present additional evidence with respect to his equal protection claim.
The UAPA provides, in relevant part:

              (e) If, before the date set for hearing, application is made to the court
       for leave to present additional evidence, and it is shown to the satisfaction of
       the court that the additional evidence is material and that there were good
       reasons for failure to present it in the proceeding before the agency, the court
       may order that the additional evidence be taken before the agency upon
       conditions determined by the court. The agency may modify its findings and
       decision by reason of the additional evidence and shall file that evidence and
       any modifications, new findings or decisions with the reviewing court.

Tennessee Code Annotated § 4-5-322(e)(2011).

       In its February 2011 order denying Mr. Barrom’s motion, the trial court stated:

       This Court, having considered the parties’ submissions, is of the opinion that the
       additional evidence sought to be presented by Petitioner is not material and,
       therefore, Petitioner’s Motion for Leave to Present Additional Evidence is not well-
       taken and should be denied.

The trial court provided no reasoning for its determination and, as noted, declined to address
Mr. Barrom’s equal protection claim for an unspecified reason.

        The Commission asserts Mr. Barrom has failed to come forward with any particular
facts with respect to any particular officer to support his allegations of disparate conduct.
However, although we agree with the Commission that Mr. Barrom’s motion is less than
artfully worded, we observe that Mr. Barrom has not been provided with an opportunity to
present his claim of disparate treatment. He was precluded from doing so by the Commission
when he attempted to question Mr. Wong. The Commission disallowed Mr. Wong’s
testimony for no reason than that it was “remote” from the date of the hearing. The hearing,
however, occurred some eight years after the incident for which Mr. Barrom was disciplined.

       We finally note that the trial court made no findings of fact in this matter as required
by Tenn. Code Ann. § 4-5-322(j)(2011). The trial court also provided neither factual basis
nor legal conclusion in support of its decision to “decline to consider” Mr. Barrom’s equal
protection claim. We find, however, that Mr. Barrom sufficiently asserted an equal

                                               -6-
protection claim when he asserted disparate application of the disciplinary rules at the
February 2009 hearing before the Commission. Thus, we vacate the trial court’s order
“declining to consider” Mr. Barrom’s equal protection claim.

                                         Holding

       Mr. Barrom has not appealed the trial court’s order sustaining the Commission’s
decision that he violated DR-104. The trial court’s judgment with respect to that issue is
affirmed. In light of the foregoing, the judgment of the trial court with respect to Mr.
Barrom’s equal protection claim is vacated. This matter is remanded for further proceedings
limited to Mr. Barrom’s claim that his equal protection rights were violated by the
Department’s disparate application of the disciplinary rules. Costs of this appeal are taxed
to the Appellee, City of Memphis Civil Service Commission.




                                                  _________________________________
                                                  DAVID R. FARMER, JUDGE




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