MARIE CRUMP,                            )

      Plaintiff/Appellant,
                                        )
                                        )              FILED
                                        )
Appeal No.                                             February 29, 2000
v.                                      )
                                                      Cecil Crowson, Jr.
M1999-02677-COA-R3-CV                                Appellate Court Clerk
                                        )
THE TENNESSEE CIVIL SERVICE             )
Davidson Chancery
COMMISSION and THE TENNESSEE            )     No. 97-3372-III
DEPARTMENT OF MENTAL                    )
HEALTH and MENTAL                       )
RETARDATION,                            )
                                        )
      Defendants/Appellees.             )



                  COURT OF APPEALS OF TENNESSEE


 APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

                      AT NASHVILLE, TENNESSEE


       THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR


FRANK J. SCANLON
Watkins, McGugin, McNeilly & Rowan
214 Second Avenue North, Suite 300
Nashville, Tennessee 37201
      ATTORNEY FOR PLAINTIFF/APPELLANT


PAUL G. SUMMERS
Attorney General and Reporter

MARY M. COLLIER
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, Tennessee 37243
      ATTORNEYS FOR DEFENDANTS/APPELLEES




                         AFFIRMED AND REMANDED




                                               WILLIAM B. CAIN, JUDGE
                              OPINION
         This is an appeal from an administrative termination under the UAPA.
See Tenn. Code Ann. §4-5-101 et seq. (1998). Prior to her termination on July
24, 1995, Ms. Marie Crump was employed by the Tennessee Department of
Mental Health and Mental Retardation in its Cloverbottom Development Facility.
Her termination stemmed indirectly from an altercation resulting from a notation
on Ms. Crump’s timecard. On July 6, 1995, Ms. Crump reported for work at
Cloverbottom for a regular shift commencing around 3:00 p.m. Her time card
bore a notation on the back stating “no work for July the 4th”. This meant Ms.
Crump had been scheduled to work on July 4th but did not show up and did not
provide any reason or excuse for being absent. Apparently, Ms. Crump was
originally scheduled to be off work on July 4th and 5th but rescheduled to be off
on July 5th and 6th. Ms. Crump was unaware of the change and did not show up
for work on July 4th. Ms. Crump became very upset about the notation on the
time card because it indicated she had intentionally stayed off the job without
any good reason. She went immediately to her supervisor, Ms. Linda Mangrum,
to explain and prevent disciplinary action from being taken. Ms. Mangrum told
Ms. Crump she could not attend to the matter at that time and would speak with
her later. Ms. Crump left but returned in a few minutes and asked Ms. Mangrum
to address the situation. Again Ms. Mangrum chose to defer the matter. Ms.
Crump became angered and shouted at Ms. Mangrum “f— you, bitch” and
departed the premises.


         When Ms. Crump reported for work on July 7, 1995, she was instructed
to see Mrs. Dorothy Eddings who was the superior of Ms. Mangrum and was
supported living facilitator for Cloverbottom. Ms. Crump met with Mrs. Eddings
prior to the beginning of her shift. Mrs. Eddings told Ms. Crump that she
intended to recommend that Ms. Crump be terminated. At this point a dispute
arose between the testimony of Mrs. Eddings and Ms. Crump. Mrs. Eddings
testified that she was careful to explain to Ms. Crump that she was only making
a recommendation and encouraged Ms. Crump to remain on the job for two
weeks until the recommendation could be acted upon. Ms. Crump denied that
Mrs. Eddings stressed that she was only making a recommendation but rather
that she was in fact firing Ms. Crump and giving her a two week grace period.
After this meeting Ms. Crump left Cloverbottom and never returned.


          In a letter dated July 24, 1995, and signed by Ms. Margaret Lewis and
Ms. Eddings, Cloverbottom informed Ms. Crump that she was terminated for
leaving work without permission and conduct unbecoming an employee in state
service. The letter further stated the following:

             This decision may be appealed under the State’s
          grievance procedure, in which case notice of the grievance
          should be filed within fifteen (15) working days. Assistance

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         in filing an appeal may be received by contacting Alan
         McLeod, Employee Relations Officer, at extension 5125.


         Ms. Crump pursued an appeal from the termination, and in March 19,
1997, a hearing was held before Administrative Law Judge Margaret Robertson.
The ALJ issued her initial order affirming the termination on June 27, 1997.
Thereafter the Civil Service Commission heard Ms. Crump’s appeal from the
ALJ’s action, and on August 11, 1997, the commission adopted the initial order
as a final determination. Ms. Crump sought judicial review of the commission’s
action in chancery court pursuant to the UAPA, Tennessee Code Annotated
section 4-5-322. The court, by memorandum and order dated January 19, 1999,
affirmed the action of the Civil Service Commission. From the chancellor’s
order Ms. Crump appeals to this Court, urging the following issues:
          1. The administrative action complained of below is not supported by
substantial material evidence;
        2. Ms. Crump was not afforded the minimum due process as required
by Tennessee Code Annotated section 8-30-331 and Tennessee Rules and
Regulations Rule 1120-10-.03(2).


        Ms. Crump has not persuaded this Court that the actions of the ALJ and
the Commission are not supported by substantial and material evidence. In the
proceeding before the ALJ, Ms. Crump admitted using foul and disrespectful
language to her supervisor. The ALJ accepted the testimony of Mrs. Eddings in
preference to the testimony of Ms. Crump as to what actually happened at the
July 7, 1995 meeting. Ms. Crump left the meeting and the Cloverbottom
premises before the end of her shift and never returned.


         Our task is to determine whether or not “substantial and material
evidence” appears in the record to sustain the judgment of the ALJ.
            In reviewing an administrative decision, a court “shall not
         substitute its judgment for that of the agency as to the weight
         of the evidence on questions of fact.” T.C.A. § 4-5-
         322(h)(5). Factual issues are reviewed upon a standard of
         substantial and material evidence, and not upon a broad, de
         novo review. CF Industries v. Tennessee Public Service
         Commission, 599 S.W.2d 536, 540 (Tenn. 1980). Substantial
         and material evidence is “ ‘such relevant evidence as a
         reasonable mind might accept to support a rational
         conclusion and such as to furnish a reasonably sound basis
         for the action under consideration.’ ” Sweet v. State Tech.
         Institute at Memphis, 617 S.W.2d 158, 161 (Tenn. App.
         1981) (quoting Pace v. Garbage Disposal District of
         Washington County, 54 Tenn. App. 263, 390 S.W.2d 461,
         463 (1965)). A court will not disturb a reasonable decision of
         an agency with expertise, experience, and knowledge in the

                                       3
          appropriate field. Griffin v. State, 595 S.W.2d 96, 99 (Tenn.
          Crim. App. 1980).

Southern Ry. Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.
1984).

          Clearly, the action of the ALJ was supported by “substantial and
material evidence” and neither the trial court nor this court may “... 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)(1998).


         Ms. Crump’s claims concerning due process are equally infirm. She
argues that her termination took place without notification of charges and an
opportunity to be heard. See Official Comp. of Tenn. R. & Regs., R. 1120-10-
.03(2);See also Tenn. Code Ann. § 8-30-331. Her assertions of due process
violations could only be valid if the ALJ chose to believe the testimony of Ms.
Crump in preference to the testimony of Mrs. Eddings. Clearly, she did not do
so. Thus Ms. Crump had not been terminated as of the July 7, 1995 meeting with
Mrs. Eddings, and indeed, no adverse employment action had been taken prior
to July 24, 1995 when Ms. Crump was terminated and advised as to proper
grievance procedure.


          The statute governing judicial review under the UAPA is plain:
             (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) Unsupported by evidence which is both substantial
          and material in the light of the entire record.

          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 (1998). Ms. Crump has failed to show that any of
these circumstances exist.


                                         4
         In such a case, the findings of fact and conclusions of law of the
administrative tribunal should be and are affirmed in all respects. The cause is
remanded for such further proceedings as may be necessary below. Costs on
appeal are taxed against the appellant.

                                _____________________________________
                                WILLIAM B. CAIN, JUDGE
CONCUR:


_________________________________________
WILLIAM C. KOCH, JR., JUDGE

_________________________________________
PATRICIA J. COTTRELL, JUDGE




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