                                                                                      03/21/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                             November 16, 2016 Session

       STEVEN YEN v. UNIVERSITY OF TENNESSEE KNOXVILLE

           Direct Appeal from the Chancery Court for Davidson County
                    No. 15-506-III  Ellen H. Lyle, Chancellor


                           No. M2016-00875-COA-R3-CV


This is an appeal of the University of Tennessee at Knoxville’s termination of a tenured
faculty member. After the University terminated Appellant, he appealed the validity of
his termination to an administrative hearing officer pursuant to the Tennessee Uniform
Administrative Procedures Act. Following a contested hearing, the hearing officer
upheld the University’s termination of Appellant. Appellant then petitioned the chancery
court to reverse the decision of the hearing officer. The chancery court held that there
was substantial and material evidence in the record to support the hearing officer’s
decision to affirm the termination of Appellant’s employment and tenure. Discerning no
reversible error, we affirm the judgment of the chancery court.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Jerrold Lance Becker and Emily Kathryn Stulce, Knoxville, Tennessee, for the appellant,
Steven Yen.

Frank Hilton Lancaster, Knoxville, Tennessee, for the appellee, University of Tennessee
Knoxville.

                                      OPINION

                         I. FACTS & PROCEDURAL HISTORY

       Appellant, Dr. Steven Yen (“Dr. Yen”), was born and raised in Taiwan, where he
studied English for seven years. Dr. Yen then immigrated to the United States in 1980
and has been a citizen of the United States since 1997. Prior to his employment with the
University of Tennessee at Knoxville (the “University”), Dr. Yen held faculty positions at
multiple reputable institutions across the country.1 Dr. Yen was hired by the University
in 2002 as an associate professor of agricultural economics and became a full professor at
the University in 2011. Dr. Yen is a prolific author with an impressive curriculum vitae,
publishing more than 100 refereed journal articles, several book chapters and research
reports, and making over 110 presentations at conferences. Dr. Yen’s employment as a
tenured professor with the University continued until September 16, 2013.

       The history of this case includes a lengthy cast of characters within the ranks of
the University’s administration, so a brief overview of those involved is necessary. Dr.
Yen’s direct supervisor at the University was Dr. Delton Gerloff, who served as the
Department Head of the Department of Agricultural and Resource Economics. Because
Dr. Yen’s position at the University split his workload between research and teaching, he
was also under the authority of both Dean William Brown (Dean for Research), and Dean
Caula Beyl (Dean of the College of Agricultural Sciences and Natural Resources, who
oversees teaching). Dean Brown and Dean Beyl both report directly to Dr. Larry
Arrington, who is the Chancellor for the University’s Institute of Agriculture. Two of Dr.
Yen’s closest friends and colleagues at the University were Dr. John Riley and Dr.
Harwood Schaffer.

       In April 2012, Dr. Yen received his performance review for the 2011 academic
year (the “2011 Review”), which rated his performance as “Needs Improvement.” Some
of the reasons given for this evaluation were Dr. Yen’s deficiencies in receiving grants
and his struggle to maintain collegiality with his co-workers, including his “tendency to
challenge and demean colleagues’ work and ideas.” The narrative portion of the 2011
Review was written by Dr. Yen’s supervisor, Dr. Gerloff. After receiving his
performance review, Dr. Yen met with Dr. Gerloff to discuss the evaluation. Dr. Yen
then appealed his 2011 Review to Dean Brown and Dean Beyl, who denied the appeal in
July 2012.

       Shortly after the appeal of his 2011 Review was denied, Dr. Yen expressed that he
was having suicidal ideations to his friend and colleague, Dr. Schaffer, stating: “One day
you are going to come in and find me hanging from that door up there.” Dr. Schaffer was
concerned and reported Dr. Yen’s statement about hanging himself to Dr. Gerloff, who
then contacted the department’s human resources office. Thereafter, some of Dr. Yen’s
colleagues decided to intervene and encouraged Dr. Yen to seek medical attention for his
apparent depression. This support group for Dr. Yen included Dr. Schaffer, Dr. Riley,
and Julie Goldman, an administrative assistant in the department. Dr. Yen heeded the
1
 Dr. Yen was a member of the faculty at the University of Alaska, Fairbanks, Nicholls State University,
Iowa State University, the University of Illinois at Urbana-Champaign, Western Carolina University, and
the University of Nevada, Reno.
                                                      2
advice of the group and obtained professional help from a psychiatrist, Dr. Arun
Jethanandani, and a therapist, Mr. Colvin Idol. During his initial session with Dr.
Jethanandani on July 14, 2012, Dr. Yen admitted once again to suicidal ideations and
expressed homicidal ideations as well. Dr. Yen stated that he “felt mistreated” by the
University and that “it upsets me so much that I think about hanging myself or them.”
Later that month, on July 27, 2012, Dr. Yen sent an email to Dr. Riley with a link to a
story about a man who was seeing a psychiatrist but had nonetheless shot and killed
several people at a movie theater in Aurora, Colorado. In the body of his email, Dr. Yen
wrote to Dr. Riley that the story was “something I could relate [to], which was a little
scary.” Between 2012 and 2013, Dr. Yen’s support group began to fracture due to a
disagreement between Dr. Riley and Dr. Schaffer, which resulted in Dr. Yen refusing to
speak to Dr. Schaffer.

       In 2013, Dr. Yen was again evaluated by Dr. Gerloff, this time for the 2012
academic year (the “2012 Review”), and he received a rating of “Meets Expectations”.
This was an improvement over Dr. Yen’s 2011 Review, but Dr. Yen was dissatisfied with
the evaluation and once again appealed to Dean Brown and Dean Beyl. On Wednesday,
September 4, 2013, Dr. Yen received a letter from Dean Brown and Dean Beyl denying
the appeal of his 2012 Review. Later that day, Dr. Yen went to Dr. Riley’s office and
spoke with him there.2 Julie Goldman testified that within a day or two of Dr. Yen’s
meeting with Dr. Riley, Dr. Riley came to her and he was “shaking like a leaf.” Dr. Riley
told Ms. Goldman that he was “very worried about Dr. Yen,” and that Dr. Yen had made
statements to him to the effect that he was going to “get a gun and kill these guys,” and
that he was going to “get an axe and chop them down the middle.” Ms. Goldman, who
had been a member of Dr. Yen’s support group, stated that this statement by Dr. Yen
“was far more graphic than the normal conversation from someone that was frustrated.”

       On Friday, September 6, 2013, Ms. Goldman told Dr. Gerloff that she was afraid
that Dr. Yen might “go postal.” Dr. Gerloff testified that he assumed that Ms. Goldman
meant that Dr. Yen might injure someone in the department. Dr. Schaffer also discussed
Dr. Yen’s statements with Dr. Gerloff. On that same day, Dr. Gerloff reported Dr. Yen’s
alleged statements to Dean Brown. Dean Brown then spoke with Dr. Riley and Dr.
Schaffer about the substance and context of Dr. Yen’s statements. Dean Brown also
contacted Chancellor Arrington regarding Dr. Yen’s statements, and the two agreed that
Dr. Yen should be placed on paid administrative leave.

      The following Monday, September 9, 2013, Dean Brown and Dean Beyl met with
Dr. Yen to place him on paid administrative leave, specifically informing Dr. Yen in
2
 Dr. Riley died on or about September 16, 2013. Therefore, all testimony at depositions and hearings in
this matter regarding what was said by Dr. Yen to Dr. Riley in his office was offered through others who
spoke with Dr. Riley regarding the event.
                                                   3
writing that:

       University officials will be reviewing reports that you made threatening
       statements including threats of physical violence in the workplace. Please
       be assured that while the University takes seriously any potential threat,
       UTPD [University of Tennessee Police Department] and other officials
       will also take your statement, and will review any information you may
       choose to offer related to these possible threats.

The same day, UTPD officials met with Dr. Yen to discuss the threatening statements he
was alleged to have made to Dr. Riley, specifically that he supposedly said: “Maybe I
should go get a gun, maybe I should shoot them, or maybe I should get an axe and I’ll
chop them right through the middle.” This information had been reported to UTPD by
Dr. Riley, who said that the previous week Dr. Yen had been “livid” and said: “I’m going
to get a gun and kill these guys. I’m going to get an axe and chop them down the
middle.” However, Dr. Riley subsequently sent emails to Dean Beyl stating that he did
not believe anyone was in danger and that Dr. Riley had made similar statements over the
years and had not resulted to violence.

       Throughout the week of September 9, 2013, while Dr. Yen was on paid
administrative leave, the University and UTPD continued to investigate the matter. On
September 11, 2013, Dr. Yen spoke with Dr. Gerloff by telephone and attempted to plead
his case, stating that “he did not make any public threats,” but that he was simply venting
to Dr. Riley in the privacy of his office. In his notes from September 12, 2013, Dr.
Gerloff wrote that there were “concerns among faculty and staff that there is an element
of risk with [Dr. Yen] coming on campus and harming people,” and that Dr. Gerloff did
believe that to be a real possibility. Later in the week, Chancellor Arrington spent
approximately three hours in a meeting with Dr. Gerloff, Dean Brown, Dean Beyl, Mary
Lucal of the University’s human resources department, UTPD Chief Troy Lane, and
University Assistant General Counsel Lela Young, wherein he interviewed individuals
about Dr. Yen’s statements, and the group debated whether or not termination of Dr.
Yen’s employment was appropriate. As a result of this meeting, Chancellor Arrington
determined that Dr. Yen’s statements violated the University’s Code of Conduct, which
states that using “threatening language” is misconduct constituting adequate cause for
termination of a tenured faculty member’s employment. Chancellor Arrington further
decided that it was appropriate to pursue the “expedited termination procedure” set forth
in the University’s Faculty Handbook, which provides for an accelerated process to
terminate a faculty member when there is “alleged misconduct involving . . . credible
threats of harm to a person.” Chancellor Arrington then met with the University System
President and the Faculty Senate President who both supported his decision to pursue the
expedited termination of Dr. Yen.
                                            4
                Pre-Termination (Loudermill) Hearing and Termination

       On Monday, September 16, 2013, Dr. Yen met with Chancellor Arrington, Dean
Brown, and UTPD Chief Lane in a UTPD conference room. This meeting was filmed,
and the videotape of the meeting was later admitted into evidence at Dr. Yen’s contested
hearing. At the beginning of the meeting, Chancellor Arrington informed Dr. Yen that
the purpose of the meeting was to advise him of the charges against him and give him an
opportunity to respond to them. To that end, Chancellor Arrington gave Dr. Yen written
and oral notice of the following charges:

      According to various reports, you made threatening statements quoted
      below, or substantially similar to the statements quoted below:
           That you were so angry [you] wanted to “take a hatchet to [Dr.
            Gerloff] and others[’] heads and watch them split open (with hand
            motions).”
           [“]I’m going to get an axe and chop them down the middle.”
           [“]I’m going to get a gun and kill these guys.”


        Chancellor Arrington then asked Dr. Yen if he had anything to say that might
refute these charges. Dr. Yen spoke for approximately thirty minutes in an attempt to
defend himself, wavering back and forth about whether he actually made the statements
at all, and that if he did make them, what he may have meant. Dr. Yen ultimately
admitted to saying that he was going to chop someone down the middle with an axe, but
he insisted that this statement was being taken out of context and that the
miscommunication was due to his misunderstanding of idiomatic speech in the English
language.

       At the end of this meeting, Chancellor Arrington told Dr. Yen that nothing he
heard that day made him believe that Dr. Yen did not make the threats he was alleged to
have made. Chancellor Arrington then told Dr. Yen that it was with a heavy heart that he
was going to have to terminate him but that he had to consider the safety of those around
him. At the end of the meeting, Chancellor Arrington gave Dr. Yen a second letter
notifying him that his employment was being terminated immediately for making
credible threats of harm to University employees, which constituted adequate cause for
termination of his tenure and employment.

                          Post-Termination (TUAPA) Hearing

      On September 19, 2013, Dr. Yen requested a hearing to contest his termination
pursuant to the Tennessee Uniform Administrative Procedures Act (“TUAPA”), which
                                           5
was authorized by the University’s Faculty Handbook (the “post-termination hearing”).
The post-termination hearing was held over the course of two days, June 11 and July 9,
2014, at the University. Jennifer Richter (“Hearing Officer”) was designated to preside
over the contested hearing. Both the University and Dr. Yen were represented by
counsel. In addition to members of the University’s faculty and administration, Dr. Yen
and several of his mental health professionals testified at the post-termination hearing.

       After taking the matter under advisement, on January 22, 2015, the Hearing
Officer issued a 29-page Initial Order, consisting of 77 Findings of Fact and a thorough
analysis of her Conclusions of Law. The Initial Order stated:

      After weighing and evaluating all of the evidence presented for the hearing
      of this matter, I conclude that the University met its burden of proof. As I
      explain below, I find that Dr. Yen used threatening language and by using
      such threatening language violated the Faculty Handbook and the
      University’s Code of Conduct for its employees.

In support of this conclusion, the Hearing Officer found the following, as summarized
below:

       Dr. Yen did make the threats he was alleged to have made as set forth in
        Chancellor Arrington’s letter dated September 16, 2013.

       These threats were credible, although whether they were credible or not
        only mattered for purposes of determining whether an expedited
        termination process could be used as opposed to the standard
        termination process.

       Dr. Yen’s denial of making these statements was not credible. Dr.
        Yen’s own mental health professionals confirmed that Dr. Yen had
        mentioned chopping Dr. Gerloff’s head in two.

       Dr. Yen’s excuse that this was all a misunderstanding resulting from his
        misunderstanding of the English language was not credible. He was a
        very prolific writer in the English language and spent much of his life in
        various institutions of higher education where English was spoken. It
        was not believable that Dr. Yen did not understand the implications of
        the language choices he made with these statements.
                                           6
 Dr. Yen himself agreed that it was common sense that if a university
  employee made statements about shooting coworkers or chopping them
  with an axe, it would constitute “threatening language” in violation of
  the University’s Code of Conduct.

 The threatening language was taken seriously by those around Dr. Yen.
  Dr. Riley was “shaking like a leaf” while reporting the threats, and Dr.
  Gerloff felt so threatened that he increased police presence on the
  University’s agriculture campus and installed a security system at his
  own home.

 Dr. Yen’s history of suicidal and homicidal ideations further supported
  the credibility of the threats.

 Dr. Yen’s mental health professionals were not dispositive of any
  determinations in the case.

 The University properly followed its own procedures in terminating Dr.
  Yen. The University’s Code of Conduct specifically states that using
  threatening language may lead to disciplinary action, up to and
  including, termination. Dr. Yen’s violation of the Code of Conduct by
  using threatening language was adequate cause for terminating a tenured
  professor’s employment.

 The University was further permitted to proceed under its expedited
  procedure for terminating Dr. Yen pursuant to Section 3.12.3 of the
  Faculty Handbook because he engaged in misconduct involving
  “credible threats of harm to a person.”

 The University then complied with the requirements of the expedited
  termination procedure prior to terminating Dr. Yen, which included
  giving him written notice of the charges against him and a basis for the
  charges, an explanation of the evidence against him, and an informal
  opportunity to refute the charges.

                                    7
       In sum, the Hearing Officer determined that the “situation involving Dr. Yen was
serious and it was treated seriously. . . . For all of these reasons provided above, I find
and conclude that the University had adequate cause, and applied the proper procedures,
to terminate Dr. Yen’s employment for misconduct.” The Hearing Officer’s Initial Order
became a Final Order on February 26, 2015.

                                Appeal to Chancery Court

       On April 22, 2015, Dr. Yen filed a petition for judicial review of the Hearing
Officer’s Final Order. In his petition, Dr. Yen requested that the chancery court reverse
the Hearing Officer’s decision to uphold the termination of his tenure and employment
because the Hearing Officer erred in the following ways:

       1.     Failure to find that due process was not afforded to Dr. Yen in the
              expedited termination proceedings undertaken by the University of
              Tennessee;

       2.     Failure to properly consider all of the evidence before the Hearing
              Officer regarding Dr. Yen’s mental health in determining that she
              did “not find the information provided by the mental health
              professionals to be dispositive of any of the determinations to be
              made for this case”;

       3.     Failure to find that the University of Tennessee did not prove by a
              preponderance of the evidence that the alleged statements made by
              Dr. Yen to Dr. John Riley were sufficient to constitute a “credible
              threat” warranting expedited termination;

       4.     Unconscionable delay in issuing the Initial Order [in violation of]
              Tenn. Code Ann. section 4-5-314(g) [and] Dr. Yen’s due process
              rights;

       5.     [Issuing a] Final Order [that] is defective [because] it does not
              comport with the requirements of Tenn. Code Ann. section 4-5-314.

These issues are essentially the same issues presently before this Court on appeal.

        Both parties submitted briefs arguing their side of the case to the chancellor, and
oral argument was held in chancery court on March 3, 2016. In addition to hearing the
arguments of counsel, the chancery court also reviewed the transcript of the post-
termination hearing and the exhibits entered therein and studied the decision of the
                                             8
Hearing Officer as well as the applicable law. On April 6, 2016, the chancery court issued
a Memorandum and Order Affirming Final Order Terminating Tenured Employment of
Petitioner (the “Chancery Court Order”). The Chancery Court Order set forth many of the
facts presented in the Initial Order, stating that it had confirmed those facts in its reading
of the record. The Chancery Court Order then correctly articulated the standard of review
applicable to this case, which we outline in Section III below.

        The Chancery Court Order then set forth the court’s analysis for rejecting Dr.
Yen’s assertions that the Hearing Officer committed any reversible error. Regarding Dr.
Yen’s issues before the chancery court numbered (2) and (3) above, which pertained to the
sufficiency of the evidence before the Hearing Officer, the chancery court determined that
Dr. Yen’s arguments “require the Court to invade credibility determinations made by the
Hearing Officer and to reweigh the evidence. This [ ] Court is not authorized to do [that]
under the applicable standard of review.” The chancery court found that the “record
amply demonstrates evidence to support the Hearing Officer’s decision and rationale.”
Turning to Dr. Yen’s ground number (1) for reversal, which challenged the validity of the
University’s expedited termination procedure, the chancery court was satisfied that the
University’s procedure and the implementation of that procedure in this case satisfied due
process. Finally, the chancellor decided that Dr. Yen’s grounds numbered (4) and (5),
which related to the timing and substance of the Hearing Officer’s Initial Order, were not
grounds for reversal. The chancellor therefore ordered that Dr. Yen’s petition for judicial
review be dismissed. Dr. Yen timely appealed that determination to this Court.
                                   II. ISSUES PRESENTED

       Dr. Yen presents the following issues for review on appeal, which we have
restated:

        1.     Whether the chancery court erred in affirming the Hearing Officer’s
               decision that the University did not violate Dr. Yen’s right to due
               process in their expedited termination of his tenure and
               employment?

        2.     Whether the chancery court was arbitrary and capricious and abused
               her discretion in affirming the Hearing Officer’s finding that Dr.
               Yen’s mental health was “not dispositive of any of the
               determinations to be made for this case”?

        3.     Whether the chancery court erred in affirming that the Hearing
               Officer did not err when she found that the University proved by a
               preponderance of the evidence that Dr. Yen’s alleged statements to

                                              9
             Dr. Riley constituted a “credible threat” warranting expedited
             termination, and by failing to consider the context in which Dr. Yen
             initially made the statements at issue?

      4.     Whether the chancery court erred by failing to find that the Hearing
             Officer exceeded the statutory time limits to render her opinion, and
             whether such delay was unconscionable further violating Dr. Yen’s
             due process rights?

      5.     Whether the chancery court erred in finding that the Hearing
             Officer’s final order was not defective for failing to comply with the
             requirements of Tennessee Code Annotated section 4-5-314?

                             III.   STANDARD OF REVIEW

       The process for judicial review of an agency decision begins in chancery court in
accordance with the Tennessee Uniform Administrative Procedures Act. See Tenn. Code
Ann. § 4-5-322(b)(1)(A). When an administrative agency is acting within its area of
specialized knowledge, experience, and expertise, a trial court’s review of the agency’s
decision “is governed by the narrow standard contained in Tennessee Code Annotated
section 4-5-322(h) rather than the broad standard of review used in other civil appeals.”
Publix Super Mkts., Inc. v. Tenn. Dep’t of Labor & Workforce Dev., 402 S.W.3d 218, 222
(Tenn. Ct. App. 2012) (citing Willamette Indus., Inc. v. Tenn. Assessment Appeals
Comm’n, 11 S.W.3d 142, 147 (Tenn. Ct. App. 1999)). Tennessee Code Annotated
section 4-5-322(h) sets forth the following standard for courts reviewing an agency’s
decision:

      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


                                            10
      (5)(A) Unsupported by evidence that is both substantial and material in
      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.

Tenn. Code Ann. § 4-5-322(h). Furthermore, “[n]o 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.” Tenn. Code Ann. § 4-5-322(i).

      An aggrieved party may then appeal the decision of the chancery court to this
Court pursuant to Tennessee Code Annotated section 4-5-323:

      (a) An aggrieved party may obtain a review of any final judgment of the
      chancery court under this chapter by appeal to the court of appeals of
      Tennessee.

      (b) The record certified to the chancery court and the record in the
      chancery court shall constitute the record in an appeal . . . .

      (c) The procedure on appeal shall be governed by the Tennessee Rules of
      Appellate Procedure.

Tenn. Code Ann. § 4-5-323. When this Court is evaluating a trial court’s review of an
agency’s decision, we must determine “whether or not the trial court properly applied the
. . . standard of review found at Tennessee Code Annotated section 4-5-322(h).” Wade v.
Tenn. Dep’t of Fin. & Admin., 487 S.W.3d 123, 126-27 (Tenn. Ct. App. 2015) (citing
Jones v. Bureau of TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002)).

                                   IV.    DISCUSSION

A. Termination Proceedings

        Dr. Yen makes numerous arguments contending that the University violated his
right to due process while terminating his employment and tenure with the University. It
is important to note, however, that all of Dr. Yen’s due process complaints relate to his
pre-termination hearing rather than to the full adversarial post-termination hearing held
by the Hearing Officer pursuant to the TUAPA. It is undisputed that, as a tenured faculty
member at a public university, Dr. Yen was entitled to due process before being
                                            11
terminated.3 The issue presented by Dr. Yen on appeal concerns what kind of process
was due.

        In his brief on appeal, Dr. Yen appears to confuse the process to which he was
entitled at his pre-termination hearing with the process required by due process at his
post-termination hearing. In Cleveland Board of Education v. Loudermill, 470, U.S. 532,
542 (1985), the Supreme Court explained that procedural due process requires “some
kind of a hearing” before deprivation of the interest, which in this case is the termination
of Dr. Yen’s employment. Loudermill, 470 U.S. at 542. The pre-termination hearing
entitled Dr. Yen to (1) oral or written notice of the charges against him, (2) an
explanation of the University’s evidence, and (3) an opportunity to present his side of the
story. See Loudermill, 470 U.S. at 542. As in this case, when there is an elaborate post-
termination hearing process available to the employee, the pre-termination hearing,
“though necessary, need not be elaborate.” Id. at 545. In contrast with a post-termination
hearing, which is a full, adversarial hearing, a pre-termination hearing is a much less
arduous task designed to be an “initial check against mistaken decisions.” Duchesne v.
Williams, 849 F.2d 1004, 1007 (6th Cir. 1988) (en banc) (quoting Loudermill, 470 U.S.
545-46).

        According to Dr. Yen, his due process rights were violated because the
University’s pre-termination hearing was illusory in that Chancellor Arrington and
University officials had already made up their minds to terminate Dr. Yen before his pre-
termination hearing. In Duchesne v. Williams, the 6th Circuit held that “a pre-deprivation
proceeding need not be a full evidentiary hearing with witnesses and a neutral decision
maker.” Duchesne, 849 F.2d at 1005 (quoting Garraghty v. Jordan, 830 F.2d 1295, 1302
(4th Cir. 1987)). Practically speaking, if the University was not already leaning towards
terminating Dr. Yen, the University would not have had a reason to call the pre-
termination hearing in the first place. Moreover, Dr. Yen was given approximately 30
minutes at the pre-termination hearing to respond to the notice of charges against him.
Ultimately, Chancellor Arrington decided that Dr. Yen had not given him any reason to
believe he did not make the threats he was alleged to have made. Dr. Yen’s assertion that
his due process rights have been violated because the decision to terminate him had been
3
 “Procedural due process imposes constraints on governmental decisions which deprive individuals of
‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the . . . Fourteenth
Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). When a university faculty member shows
a “legitimate claim of entitlement” to job tenure, he shows a “property interest” that “would obligate
college officials to grant a hearing at his request, where he could be informed of the grounds for his
nonretention and challenge their sufficiency.” Perry v. Sindermann, 408 U.S. 593, 603 (1972). By the
same token, employment termination causing serious injury to an individual’s reputation can deprive the
person of a “liberty interest” and entitle him to notice and an opportunity to be heard to refute the charges.
Ludwig v. Bd. of Trustees of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997).

                                                     12
made prior to the meeting on September 16, 2014 is not availing.

       Dr. Yen also attacks the validity of his pre-termination hearing on the grounds that
he was “blindsided” by the fact that the meeting was a meeting for expedited termination
and that the evidence against him was not properly explained to him. However, the
record does not support Dr. Yen’s contention that he was “blindsided,” and we do not
agree that due process required more notice than Dr. Yen was given regarding the
meeting. The letter that Dr. Yen received putting him on administrative leave
specifically stated that “officials will be reviewing reports that you made threatening
statements including threats of physical violence in the workplace.” On that same day,
UTPD officials met with Dr. Yen and informed him of the specific allegations made
against him. Furthermore, at the beginning of the pre-termination hearing, Chancellor
Arrington gave Dr. Yen notice of the charges against him, an explanation of the charges
against him, and an opportunity to respond to them. Dr. Yen then responded to these
allegations for approximately half an hour. This is precisely the due process to which Dr.
Yen was entitled at his pre-termination hearing.

       As we have outlined above, a pre-termination hearing “need not be elaborate,” and
due process entitled Dr. Yen to oral or written notice of the charges against him, an
explanation of the University’s evidence, and an opportunity to present his side of the
story. See Loudermill, 470 U.S. at 542. We agree with the chancery court that these
requirements were satisfied and that Dr. Yen was provided with adequate due process
when the University terminated his employment and tenure.

B. Determination Regarding Dr. Yen’s Mental Health

       Dr. Yen next argues that the chancellor erred in finding that the Hearing Officer
“amply demonstrated evidence to support [her] decision and rationale” for
“disregard[ing]” the mental health evidence presented by Dr. Yen. As a preliminary
matter, we note that the appellate brief submitted on behalf of Dr. Yen in this case is
marked by a misstatement and/or misunderstanding of the applicability of the “substantial
and material evidence” standard of proof. Many of the arguments presented by Dr. Yen,
including those related to the issue of Dr. Yen’s mental health, contain assertions such as:
“The record contains substantial and material evidence which supports an opposite
conclusion of that reached by the Hearing Officer . . . .” However, even if we found that
to be true, the fact that the record contains evidence that could support a different
decision by the Hearing Officer is not the standard for judicial review articulated by the
TUAPA. See Tenn. Code Ann. § 4-5-322(h)(5)(A) (providing that a court may reverse
the decision of a hearing officer if it is not supported by substantial and material
evidence). It is not enough for Dr. Yen to show that the facts could support a different
conclusion. See Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256, 265 (Tenn.
                                            13
2009).

       The mental health professionals proffered by Dr. Yen included Dr. James Murray,
Dr. Jethanandani, and Mr. Colvin Idol. Dr. Murray is a licensed clinical psychologist
who practices forensic psychology. Dr. Murray administered a variety of tests on Dr.
Yen after the statements at issue were made and concluded that Dr. Yen’s threats were
not credible. Regarding Dr. Murray’s testimony, the Hearing Officer made the following
findings:

         Dr. Murray testified that he administered the Minnesota Multiphasic
         Personality Inventory Test (the MMPI-2-RF). The administration of this
         test took place 8 months after the incidents of September 2013. . . . Dr.
         Murray testified that the MMP[I]-2-RF is a well standardized, well
         validated [test], used universally in a vast majority of forensic evaluations
         that involve personality assessment in civil and criminal cases.

         Dr. Murray testified that the results of the scores of the personality
         inventory could have been different had it been administered in September
         2013.

Dr. Yen’s treating psychiatrist, Dr. Jethanandani, did not conduct specific tests on Dr.
Yen, but rather testified that based on her meetings with Dr. Yen she did not believe that
he would actually follow through with the threats he made. Mr. Idol, Dr. Yen’s treating
therapist, did not perform any testing of Dr. Yen or testify as an expert, but Mr. Idol did
state that during his treatment of Dr. Yen, he did not feel that Dr. Yen was a threat to
himself or others. The Hearing Officer made the following conclusion regarding the
testimony presented by Dr. Yen’s mental health professionals:

         Dr. Yen’s mental health professionals were helpful in relating their
         experiences with Dr. Yen; however, one was not part of his support system
         at the time of the events, and even the others could only look at the events
         afterwards and only through the eyes of Dr. Yen. I do not find the
         information provided by the mental health professionals to be dispositive of
         any of the determinations to be made for this case.

         “Expert testimony is not ordinarily conclusive, but is purely advisory.” England v.
Burns Stone Co., 874 S.W.2d 32, 38 (Tenn. Ct. App. 1993) (citing Gibson v. Ferguson,
562 S.W.2d 188 (Tenn. 1976)). As such, a trier of fact is free to “place whatever weight
it chooses upon such testimony,” including disregarding the expert testimony “if it finds
that it is inconsistent with the facts or otherwise unreasonable.” Id. A trial court’s review
of an agency’s decision involves a determination of whether there is evidence in the
                                              14
record to support the administrative decision. Tenn. Code Ann. § 4-5-322(h). The trial
court does not substitute its own judgment for that of the agency regarding questions of
fact. Tenn. Code Ann. § 4-5-322(h)(5)(A) and (B). The Hearing Officer specifically
found Dr. Yen’s threats to be “credible,” despite the testimony of his mental health
professionals. As the trier of fact, the Hearing Officer was free to do so.

       Furthermore, consideration of Dr. Yen’s mental health is not a requirement for the
termination of a faculty member pursuant to the section of the Code of Conduct Dr. Yen
was accused of violating, i.e., using threatening language. At most, Dr. Yen’s arguments
related to his mental health speak to whether or not his threats were credible, which is
only relevant to whether the University can use an expedited termination process or must
follow their standard termination procedure. When reviewing the Hearing Officer’s order
regarding this issue, the chancery court stated that Dr. Yen was essentially asking the
court to re-weigh the evidence, which is not permissible under the standard of review set
forth in Tennessee Code Annotated section 4-5-322(h). We agree with the chancery
court and discern no error in the Hearing Officer’s decision to not rely on the opinions
proffered by Dr. Yen’s medical professionals.

C. Credibility of Threats

       Dr. Yen also contends that the Hearing Officer erred in finding that the University
proved by a preponderance of the evidence that Dr. Yen’s alleged statements to Dr. Riley
constituted a “credible threat” warranting expedited termination and by failing to
consider the context in which Dr. Yen initially made the statements at issue. The Hearing
Officer made specific findings that Dr. Yen’s statements to Dr. Riley constituted
“credible” threats. In support of this determination, the Hearing Officer found that those
around Dr. Yen took the threats seriously, Dr. Yen’s history of suicidal and homicidal
ideations supported the credibility of these threats, and that Dr. Yen’s assertions that the
whole situation was simply a cultural misunderstanding was not believable. Moreover,
the Hearing Officer correctly determined that whether the threats were credible or not
only mattered for purposes of determining whether an expedited termination process
could be used as opposed to the standard termination process.

       We conclude that there is substantial and material evidence in the record to
support the Hearing Officer’s determination that Dr. Yen’s threats were “credible”
threats. Moreover, the determination of whether the threats were credible or not is not a
conclusion affecting the merits of the Hearing Officer’s judgment, and it is therefore not
grounds for reversal under the standard for judicial review articulated in Tennessee Code
Annotated section 4-5-322(i).



                                            15
D. Timing of Hearing Officer’s Initial Order

        Dr. Yen asserts that the chancery court erred in failing to find that the Hearing
Officer committed reversible error by exceeding the statutory time limits set forth in
Tennessee Code Annotated section 4-5-314(g) in rendering her opinion for the Initial
Order. According to Dr. Yen, this “unconscionable delay” violated his due process
rights, and he was prejudiced as a result. Tennessee Code Annotated section 4-5-314(g)
provides, in pertinent part, that an “initial order . . . shall be rendered in writing within
ninety (90) days after conclusion of the hearing or after submission of proposed findings .
. . unless such period is waived or extended with the consent of all parties or for good
cause shown.” Tenn. Code Ann. § 4-5-314(g); see also Tenn. Code Ann. § 4-5-314(f)
(stating that a “hearing officer may allow the parties a designated amount of time after
conclusion of the hearing for the submission of proposed findings”).

       The contested hearing of this case concluded on July 9, 2014. The Hearing
Officer thereafter instructed counsel for both parties to submit proposed findings of fact
and conclusions of law on or before August 15, 2014. Both parties complied with this
request, and the period for the Hearing Officer to render her Initial Order began when Dr.
Yen submitted his proposed findings on August 15. Ninety days from August 15, 2014
ran on November 13, 2014. With no decision forthcoming, on January 14, 2015, counsel
for the University and Dr. Yen reached out by email to the Hearing Officer to inquire as
to the status of the Initial Order. The Hearing Officer responded that same day and said
that she would be sending out her decision the next week. The following week, on
January 23, 2015, the Hearing Officer emailed her Initial Order to counsel for both the
University and Dr. Yen.

       It is undisputed that the Hearing Officer’s Initial Order was rendered after the 90
day time period set forth in Tennessee Code Annotated section 4-5-314(g). However,
this Court has held that the 90 day requirement for rendering an Initial Order is “directory
rather than mandatory” and that a hearing officer’s failure to comply with that time
requirement does not automatically nullify the hearing officer’s decision, particularly in
the absence of prejudice to the complaining party. See Daley v. Univ. of Tenn. at
Memphis, 880 S.W.2d 693, 694 (Tenn. Ct. App. 1994). Further, the TUAPA specifically
states that “[n]o 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.” Tenn. Code Ann. § 4-5-322(i).

       Dr. Yen also raised the Hearing Officer’s failure to comply with the 90 day
requirement for rendering her decision as an issue in the chancery court proceedings.
The chancellor noted the legal principle set forth above, that the time requirement is
directory rather than mandatory, and also found the following from its review of the
                                             16
record:

        [T]he Hearing Officer’s decision was comprehensive and thorough. The
        time the Hearing Officer took to cite to the record and painstakingly sift
        through and weigh the evidence and then explain that process demonstrated
        care and deliberation. The Hearing Officer’s decision also enabled this
        Court to do its work on judicial review and promptly issue a decision. The
        time it took the Hearing Officer to issue her decision is not grounds for
        reversal.

On appeal, Dr. Yen argues that he was prejudiced by the Hearing Officer’s delay in a
variety of ways, including that it inhibited his ability to gain future employment, but we
do not find evidence to support those assertions in the record of this case. We therefore
affirm the chancellor’s decision that the delay in rendering the Initial Order is not
reversible error.

E. Contents of the Hearing Officer’s Orders

        Finally, Dr. Yen contends that the chancellor erred in failing to find that the Initial
Order was defective because it did not contain statements within the body of the order
itself regarding the procedures and time limits for seeking reconsideration and the process
by which the Initial Order would become a Final Order.4 Tennessee Code Annotated
section 4-5-314(c) states that the following information must be included in a hearing
officer’s order:

        The final order, initial order or decision must also include a statement of the
        available procedures and time limits for seeking reconsideration or other
        administrative relief and the time limits for seeking judicial review of a
        final order. An initial order or decision shall include a statement of any
        circumstances under which the initial order or decision may, without
        further notice, become a final order.

Tenn. Code Ann. § 4-5-314(c).

4
 Neither party sought reconsideration or review of the Initial Order, and the acting Agency Head, Dr.
High, did not review the Initial Order on her own initiative. The Initial Order therefore became the Final
Order by operation of law on February 27, 2015. See Tenn. Code Ann. § 4-5-314(b) (providing that “an
initial order . . . shall become a final order unless reviewed in accordance with § 4-5-315”) and Tenn.
Code Ann. § 4-5-315 (requiring a motion for reconsideration or review to be filed “within fifteen (15)
days after entry of the initial order”). Due to this sequence of events, the Initial Order and the Final Order
are one in the same. For that reason, Dr. Yen asserts that they are both deficient for failing to include the
required information set forth in Tennessee Code Annotated section 4-5-314(c).
                                                       17
        Just as with the 90 day requirement for rendering opinions, Dr. Yen again asserts a
technical deficiency with the Hearing Officer’s Initial Order without showing any
legitimate prejudice to him and without citing any law for the proposition that this is
reversible error. Tennessee Code Annotated section 4-5-322(h) states that a reviewing
court may reverse an agency’s decision “if the rights of the petitioner have been
prejudiced.” Tenn. Code Ann. § 4-5-322(h). Notably, Dr. Yen did meet the deadline for
filing a notice of appeal. Dr. Yen contends that the prejudice he endured as a result of
this error was that he “had to look to multiple sources in order to receive adequate notice
regarding the available procedures and time limits” for appeal of the Hearing Officer’s
decision.

        On October 31, 2013, Katherine High, serving as the Agency Head for the
University, sent a letter to Jennifer Richter appointing her to be the administrative judge
(Hearing Officer) for Dr. Yen’s contested hearing. Counsel for Dr. Yen was copied on
this letter. The letter discussed the process by which the Hearing Officer’s Initial Order
would become a Final Order by operation of law, the rights of both parties to seek
reconsideration of the Initial Order and/or the Final Order, and the right to seek judicial
review of the Final order by filing a petition for review with the chancery court. On
February 10, 2015, Dr. Yen’s counsel was copied on an email from the University’s
attorney to the Agency Head, Katherine High, which attached a copy of the Hearing
Officer’s Initial Order to allow her to decide whether she would review the Initial Order
on her own initiative. The body of this email detailed the procedures for reconsideration
and judicial review of the Initial Order and the regulatory and statutory authority for these
procedures. On March 3, 2015, counsel for Dr. Yen was again copied on an email, which
was from the University’s attorney to Katherine High, stating that the time for the
Agency Head to review the Initial Order had passed making it a Final Order, and setting
forth the time frame in which Dr. Yen could seek judicial review of the Final Order. Dr.
Yen thereafter timely filed his petition for judicial review on April 22, 2015.

        On judicial review, the chancery court examined the case of Thomas v.
Commissioner of Safety, No. 01-A-01-9011-CH-00412, 1991 WL 111428 at *4, (Tenn.
Ct. App. June 26, 1991), in which this Court held that a typewritten appendix attached to
an initial order titled “Notice of Appeal Procedures” and containing one section pertinent
to “review of [the] initial order” and another regarding “review of the final order,” was
sufficient although it was not part of the actual text of the final order. In the case at hand,
the chancellor found that Dr. Yen “received proper notice through the letter dated
October 31, 2013, from the Agency Head’s appointment of the administrative judge; the
February 10, 2015 letter to the Petitioner from the University; and the notice the
Petitioner received on March 3, 2015 from the University.” We agree with the decision
of the chancery court that Dr. Yen was properly advised of his rights to review and
appeal in this matter. Further, Dr. Yen’s contention that he has been prejudiced because
                                              18
he had to look to multiple sources in order to ascertain his rights to appeal falls within the
category of errors not affecting the merits of the decision in this case and is therefore not
reversible error pursuant to Tennessee Code Annotated section 4-5-322(i).

                                     IV. CONCLUSION

       For the foregoing reasons, we affirm the judgment of the chancery court. Costs of
this appeal are taxed to the appellant, Steven Yen, and his surety, for which execution
may issue if necessary.



                                                  _________________________________
                                                  BRANDON O. GIBSON, JUDGE




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