                                                                                    12/16/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                            November 13, 2019 Session

     SHELBY COUNTY, TENNESSEE v. GARY MORRIS, JR. ET AL.

                Appeal from the Chancery Court for Shelby County
                 No. CH-15-0911 JoeDae L. Jenkins, Chancellor
                     ___________________________________

                          No. W2019-00049-COA-R3-CV
                      ___________________________________


This appeal arises from Shelby County’s decision to terminate Appellee’s employment
for non-compliance with the County’s residency requirement. The Civil Service Merit
Board (“CSMB”) reversed the termination of Appellee’s employment and reinstated him
with back pay. On appeal, the Shelby County Chancery Court affirmed the CSMB’s
ruling. Finding no error, we affirm the decision of the Chancery Court.


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


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

Bridgett L. Stigger, and Sanjeev Memula, Memphis, Tennessee, for the appellant, Shelby
County, Tennessee.

Murray B. Wells, Memphis, Tennessee, for the appellee, Gary Morris, Jr.
                                             OPINION

                                          I. Background

       Appellee Gary Morris was an employee of Appellant Shelby County, Tennessee
(“the County”), in its Roads, Bridges, and Engineering Department. As is relevant to this
appeal, the County’s Charter and Policy No. 304 require Shelby County employees to
reside in the County as a condition of their employment. Specifically, the policy provides
that “[a]ll employees hired after September 1, 1986, must be residents of Shelby County
and shall continue to reside in said County as a condition of their employment.” On
January 15, 2015, the County requested Mr. Morris to provide a mailing address for his
2014 W-2. Mr. Morris provided the County with the mailing address of 345 Emma
Road, Oakland, Fayette County, Tennessee, which was his girlfriend’s address. Because
of the County’s residency requirement, Mr. Morris’ supervisors questioned him about the
out-of-county address he provided for mailing his W-2, and Mr. Morris immediately
submitted a request to update his address to 5723 Logan Cove, Arlington, Shelby County,
Tennessee.1

        On January 16, 2015, the County began an investigation of whether Mr. Morris
was compliant with the residency requirement. The County requested that Mr. Morris
confirm his compliance (by January 20, 2015) by supplying the County with three
documents from a list of approved documents such as: a rental/mortgage contract, current
driver’s license, motor vehicle registration or title, current voter registration, W-2 form,
current receipt for real estate taxes, or a current utility bill. On January 20, 2015, Mr.
Morris provided a lease agreement for 6804 North Knoll, Millington, a Shelby County
address. The lease was signed on January 17, 2015, and was to become effective on
February 1, 2015. On January 21, 2015, Mr. Morris tendered three additional documents
reflecting an address of 12466 US Highway 64, a Shelby County address. These
documents included a 2013 application for vehicle registration, a 2013 W-2 tax form
(from another employer), and a March 2014 receipt for a trailer.

        On January 28, 2015, the County conducted a Loudermill hearing to determine
whether Mr. Morris was a County resident. At that time, Mr. Morris submitted an
affidavit from his aunt, Mosie Thomas, in which she stated that Mr. Morris lived with her
at 12611 Highway 64, Shelby County, Tennessee, from January 1, 2014 through
December 2014. On January 29, 2015, the County terminated Mr. Morris’ employment
on the ground that he failed to prove compliance with the County’s residency
requirement. Mr. Morris appealed the termination to the Shelby County Civil Service
Merit Board (“CSMB”). On April 16, 2015, the CSMB conducted a hearing regarding
this termination.

        1
          5723 Logan Cove is Mr. Morris’ grandmother’s address. Mr. Morris testified that he listed this
address because his grandmother was his emergency contact for work.
                                                 -2-
        On May 15, 2015, the CSMB found that the Roads, Bridges, and Engineering
Department did not meet its burden of proof on cause to terminate Mr. Morris’
employment. As such, the CSMB overturned the termination of employment, and
reinstated Mr. Morris with back pay. On July 8, 2015, the County appealed the CSMB’s
ruling to the Shelby County Chancery Court (“trial court”). On December 13, 2018, the
trial court entered an order adopting the CSMB’s findings of fact and conclusions of law.
The County appeals.

                                         II. Issue

       The County raises several issues for review. However, we perceive that there is
one dispositive issue: Whether the trial court erred in affirming the CSMB’s decision to
reverse termination of Mr. Morris’ employment and to reinstate him with back pay.

                                III. Standard of Review

       “Judicial review of decisions by civil service boards of a county or municipality
which affects the employment status of a county or city civil service employee shall be in
conformity with the judicial review standards under the Uniform Administrative
Procedures Act [(“UAPA”)] . . . .” Tenn. Code Ann. § 27-9-114 (b)(1); City of Memphis
v. Civil Serv. Comm’n of Memphis, 238 S.W.3d 238, 242 (Tenn. Ct. App. 2007). The
UAPA provides, in pertinent part:

      (a)(1) A person who is aggrieved by a final decision in a contested case is
      entitled to judicial review under this chapter, which shall be the only
      available method of judicial review. . . .

                                            ***

      (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 the 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
                                          -3-
             (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.

Tenn. Code Ann. § 4-5-322. In City of Memphis, this Court explained that

      [u]pon confirming that an agency has employed the proper legal principles
      in the case under review, this Court must then consider the disputed factual
      findings and address whether the agency had a reasonably sound basis for
      making those findings. See McEwen v. Tenn. Dept. of Safety, 173 S.W.3d
      815, 820 (Tenn. Ct. App. 2005). Like the trial court, this Court applies the
      substantial and material evidence standard in reviewing the agency’s
      findings of fact. Bobbitt v. Shell, 115 S.W.3d 506, 509-10 (Tenn. Ct. App.
      2003). Substantial and material evidence is “such relevant evidence as a
      reasonable mind might accept to support a rational conclusion” and to
      furnish a reasonably sound basis for the decision under consideration. 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)); Dickson v. City of Memphis
      Civil Serv. Comm’n, 194 S.W.3d 457, 464 (Tenn. Ct. App. 2005); Pruitt v.
      City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542, at
      *7 (Tenn. Ct. App. Aug. 24, 2005); Bobbitt, 115 S.W.3d at 510.

             As directed by the statute, we take into account whatever in the
      record fairly detracts from the weight of the evidence, but we may not
      substitute our own judgment on questions of fact by re-weighing the
      evidence. See Tenn. Code Ann. § 4-5-322(h)(5)(B). When the agency
      conducts a hearing and can evaluate the witnesses as they testify, this Court
      gives the tribunal’s credibility determinations great weight. Pruitt, 2005
      WL 2043542, at *7. Moreover, the substantial and material evidence
      standard does not justify reversal of an administrative decision only
      because the evidence could also support another result. Martin v.
                                           -4-
      Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001). Rather, we may
      reject an administrative determination only if a reasonable person would
      necessarily arrive at a different conclusion based on the evidence. Id.

              Likewise, Tennessee Code Annotated [s]ection 4-5-322(h)(4)
      permits a reviewing court to modify or reverse an administrative decision if
      it is “[a]rbitrary or capricious or characterized by abuse of discretion or
      clearly unwarranted exercise of discretion.” Tenn. Code Ann. § 4-5-
      322(h)(4). A decision unsupported by substantial and material evidence is
      arbitrary and capricious. City of Memphis, 216 S.W.3d at 315. Yet, a clear
      error of judgment can also render a decision arbitrary and capricious
      notwithstanding adequate evidentiary support. Id. at 316. A decision is
      arbitrary or capricious if it “is not based on any course of reasoning or
      exercise of judgment, or . . . disregards the facts or circumstances of the
      case without some basis that would lead a reasonable person to reach the
      same conclusion.” Id. (quoting Jackson Mobilphone, 876 S.W.2d at 110-
      11).

City of Memphis, 238 S.W.3d at 243.

                                      IV. Analysis

       The County argues that the trial court erred when it affirmed Mr. Morris’
reinstatement with back pay. It alleges that there is substantial and material evidence to
support its decision to terminate Mr. Morris’ employment. As discussed, supra, Shelby
County Government Policy No. 304 provides that “[a]ll employees hired after September
1, 1986, must be residents of Shelby County and shall continue to reside in said County
as a condition of their employment.” The policy further defines “residence” as “the
primary residence of the employee.”

       From our review of the record, it appears that the County terminated Mr. Morris’
employment because it made an assumption about Mr. Morris’ primary residence based
solely on a mailing address he provided. The County further ignored Mr. Morris’
testimony that he did not live at the 345 Emma Road, Fayette County address, and
disregarded evidence he submitted concerning his residency because the evidence did not
comport with its guidelines regarding the types of documentation necessary to prove
residency in the County.

       The investigation into Mr. Morris’ residency commenced after Mr. Morris
provided the 345 Emma Road, Fayette County address as the address to which he wanted
his 2014 W-2 mailed. The County clearly assumed from the information provided by Mr.
Morris that the Fayette County address was Mr. Morris’ residence. At the CSMB
hearing, Charles Wood, the Deputy Administrator of Shelby County Roads, Bridges, and
                                        -5-
Engineering testified concerning the County’s assumption, to-wit:

      Q: Okay. Nobody said to him, “Write down where you live.” They said,
      “Give me an address [so] I can get some tax information to you,” right?

      A: I don’t know.

      Q: You don’t know what was said?

      A: No.

      Q: So, we are making all kinds of assumptions that he told anybody that is
      where he lived?

      A: No, you are wrong.

      Q: Okay. Tell me why I am wrong.

      A: You are saying I witnessed and that they told him that. I was not there
      to witness that, no. They gave me what I am showing you here --

      Q: That is right.

      A: -- and what he said where he lived or where he wanted his mailing
      address.

      Q: It’s where he said he wanted his mail to come to.

      A: Right.

      Q: And what we are getting at is this assumption that he told anybody at
      any point that “that is where I live.” And he said, “That is where I can get
      some mail.” Maybe he was staying with his girlfriend who lived there,
      right?

      A: That is what he later told me.

      Q: And that doesn’t mean he is not a resident of Shelby County. He could
      be a resident of Shelby County and get mail at his girlfriend’s house,
      couldn’t he?

      A: I understand that.

                                          -6-
      Q: So, we can make lots of assumptions about where he lived, right?

      A: Right.

      Q: And that is what we did in this case, we made some assumptions, right?
      You did. You made some assumptions --

      A: I made an assumption that was his primary address, yes.

      Q: That is right. And after that assumption had been made that he is
      telling you by writing some numbers down that “that is my primary
      address,” after that assumption was made, did you verify that he lived at
      that address by any other independent source?

      A: No, I did not.

      Q: Did anybody within Shelby County verify that he lived at that address
      through any independent source?

      A: Did they go verify? No.

      Q: I mean, did anybody try to pull a light bill or ask for a lease or do
      anything to verify?

      A: Yes, they did. Yes, we did. We asked for several documentations of
      him.

      Q: And did any documents support the fact that he lived at what you
      assumed was his primary address?

      A: No, sir, it did not.

      Q: There wasn’t a single thing, other than the fact that he wrote that
      address down on a piece of paper . . . right?

      A: That is true.

Despite having no actual proof that Mr. Morris resided outside Shelby County, the
County terminated Mr. Morris’ employment based solely on a violation of the residency
policy.

        The County justifies its decision to terminate Mr. Morris’ employment because he
failed to provide three documents from its “list of seven documents categories.” Because
                                             -7-
Mr. Morris did not provide these exact documents, the County contends that Mr. Morris
failed to prove that he was a resident of Shelby County. Thus, the County maintains that
termination of his employment was proper. While the County has an established
residency policy under Shelby County Government Policy No. 304, there is no specific
policy concerning what documents employees must provide to the County to prove
residency. At the CSMB hearing, Edward Bowden, the Human Resources Advisor for
the County, could not cite any County policy regarding the “list of seven documents
categories”:

      Q: Do you know whether there is a policy number or some way we can
      legally define within Shelby County how it is that you have got to have
      these seven documents to be able to be -- three of these seven documents to
      verify your employment? I mean, I am trying to figure out is there some
      place I can go and see that, this is what is required?

      A: I have no knowledge of that.

Mr. Morris testified at the CSMB hearing that he was unable to provide any of the
requested documents on the County’s list because he neither owned nor rented a house
because he lived with his aunt. In the absence of proof that the County has adopted an
actual policy or procedure concerning the specific documents employees must provide to
prove County residency, Mr. Morris cannot be required to provide specific documents to
show his residency. Turning to the record, to prove his residency in the County, Mr.
Morris provided the following proof: (1) his lease agreement for 6804 North Knoll,
Shelby County, Tennessee which lease was to become effective on February 1, 2015; (2)
a 2013 application for vehicle registration listing the 12466 Highway 64 address; (3) a
2013 W-2 tax form from a secondary employer bearing the 12466 Highway 64 address;
and (4) a receipt for a trailer dated March 14, 2014, showing the 12466 Highway 64
address. Mr. Morris also provided the County an affidavit from his aunt, wherein she
stated that Mr. Morris lived with her in 2014 at the 12611 Highway 64 address. Mr.
Morris also provided an affidavit from his girlfriend, wherein she stated that Mr. Morris
did not reside with her at the 345 Emma Road address in Fayette County. The County
rejected these documents because none of them purportedly “met the requirement Shelby
County ha[d] set forth for employees to prove compliance.” However, with no specific
policy adopted by the County concerning the documentation required to establish
residency, the County could not disregard the documents provided by Mr. Morris.

        In addition to the foregoing documents, Mr. Morris also testified at length at the
CSMB hearing concerning his residency. He explained that he was born in Shelby
County, grew up in Shelby County, attended high school in Shelby County, and was
living in Shelby County when he began working for the Roads, Bridges, and Engineering
Department. Mr. Morris further explained that, in 2013, he lived at 12466 US Highway
64, a Shelby County address. He testified that, in 2014, he moved to his aunt’s house at
                                          -8-
12611 Highway 64, also a Shelby County address. He further testified that, as of January
20, 2015, he lived at the 12611 Highway 64 address. His aunt’s affidavit, supra, supports
this testimony. Mr. Morris explained that he provided his supervisor with the 345 Emma
Road, Oakland, Fayette County address to mail his W-2 because he was in the process of
moving out of his aunt’s house to the 6804 North Knoll address. Additionally, he
explained that the 345 Emma Road address was his girlfriend’s residence, and he
provided the lease agreement for that property, on which he was not listed as a lessee.

       The CSMB reviewed the foregoing proof before concluding that the County “did
not meet the burden of proof for ‘cause’” when it terminated Mr. Morris’ employment.2
The CSMB further concluded that, “[a]lthough the County did not receive from Mr.
Morris three of their seven requested documents to validate his residency, the County did
not prove that Mr. Morris lived outside of Shelby County. The County was not open to
accept alternative documents presented as proof of residence.” The trial court affirmed
the CSMB when it concluded that

        7. [t]he CSMB’s decision was based upon substantial and material
        evidence. Specifically, the [c]ourt notes that Shelby County did elicit
        testimony in its own case in chief supporting Mr. Morris’ contention that he
        was a resident of Shelby County. Furthermore, Shelby County did not
        present any contradictory evidence disputing the evidence that Mr. Morris
        resided outside of Shelby County. Gary Morris, however, presented his

        2
          We note that, on appeal, the County argues that the CSMB erred when it shifted the burden to
the County to prove Mr. Morris’ Shelby County residency. Essentially, the County argues that it should
not have had the burden of proof, at the CSMB hearing, to show that Mr. Morris’ employment was
terminated for cause. However, in its appellate brief concerning this issue, the County fails to reference
any County policy or Tennessee law, which provides that it is the employee’s burden to prove that the
County did not have cause to terminate his or her employment. See Tenn. R. App. P. 27(a)(7). Appellee
cites Kirkwood v. Shelby County Government, No. W2005-00769-COA-R9-CV, 2006 WL 889184, at *4
(Tenn. Ct. App. Apr. 6, 2006), in response to the County’s argument. In Kirkwood, this Court explained
that

        [“]The burden of proof is on the party having the affirmative of the issue, and the burden
        of proof never shifts.[”] 11 Tenn. Jur., Evidence, § 49. In disciplinary proceedings, or
        where the issue is whether the party charged has committed an illegal or improper act, the
        burden is on the one making the charges and this rule applies where the charge is made
        by an administrative body. Id.

Kirkwood, 2006 WL 889184, at *4; see also Case v. Shelby Cty. Civil Serv. Merit Bd., 98 S.W.3d 167,
175-76 (Tenn. Ct. App. 2002) (discussing that an employer bears the burden of demonstrating cause to
terminate an employee’s employment). Therefore, it appears that the CSMB properly placed the burden
on the County to prove that it had cause to terminate Mr. Morris’ employment. Because the County had
the burden to prove Mr. Morris’ termination of employment was “for cause,” the County also had the
burden of proving that the “cause” existed, i.e. that Mr. Morris did not reside in Shelby County.
Nonetheless, even if it were Mr. Morris’ burden, he clearly proved his residency, as discussed supra.
                                                  -9-
       own testimony, various documents, and the sworn affidavits of two people
       attesting to his residency.

       From our review, we agree with the trial court’s conclusion that the CSMB “had a
reasonably sound basis” for finding that termination of Mr. Morris’ employment was
improper. City of Memphis, 238 S.W.3d at 243 (citing McEwen, 173 S.W.3d at 820).
There is substantial and material evidence in the record to support the CSMB’s finding
that the County “did not meet the burden of proof for ‘cause’” when it terminated Mr.
Morris’ employment. In the first instance, the County terminated Mr. Morris’
employment simply because he requested that the County mail his 2014 W-2 to an
address in Fayette County. Mr. Morris testified that he had never lived in Fayette
County, and Mr. Wood admitted that the County never verified the Fayette County
address as Mr. Morris’ primary residence. These facts alone demonstrate that the County
did not meet its burden of proof for cause to terminate Mr. Morris’ employment.
Nonetheless, the County contends that termination of Mr. Morris’ employment was
proper because he did not comply with the “list of seven documents categories.” As
discussed above, the County provided no evidence that it actually adopted a policy or
procedure regarding specific documentation required to prove residency. As such, its
disregard of Mr. Morris’ evidence was improper. From the evidence Mr. Morris
provided, it is clear that Mr. Morris resided in Shelby County during the relevant time
period.

       Still, the County alleges that Mr. Morris did not prove his residency for a sixteen-
day period of time, i.e. while he was in the process of moving into a new residence. At
the CSMB hearing, Mr. Bowden acknowledged that Mr. Morris was a Shelby County
resident prior to January 16, 2015, to-wit:

       Q: Well, your testimony right now is you can attest that he was a resident
       that had provided what was required. And so, if you are able to attest to
       that, then tell the Board what it is he provided.

       A: I don’t have knowledge of that. The only thing that I can attest is that
       prior to January 16, January 15 he was a resident.

       Q: Prior to -- prior to --

       A: Employee of Shelby County.

       Q: Prior to the fact that he wrote that handwritten notice with his
       girlfriend’s address on it saying you could send him some mail over there,
       he was a resident?

       A:    Prior to January 16 when I was brought on board, from my
                                     - 10 -
        understanding, Mr. Morris was a resident.

Concerning the sixteen-day period, as discussed above, Mr. Morris provided the County
with a lease for his new residence. The lease began on February 1, 2015. So, the County
alleges that Mr. Morris did not prove his County residency from January 16, 2015
through February 1, 2015. However, based on his undisputed testimony, there is no proof
that Mr. Morris resided outside the County during this sixteen-day period. Rather, from
his testimony and the affidavits he provided, he resided with his aunt in Shelby County
until he took possession of the leased property. As such, there is substantial and material
proof that Mr. Morris was a resident of Shelby County during all of his County
employment, and the County had no cause to terminate his employment.3

                                            V. Conclusion

       For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against the Appellant, Shelby County, Tennessee, for all
of which execution may issue if necessary.


                                                           _________________________________
                                                           KENNY ARMSTRONG, JUDGE




        3
           We note that the County’s final argument is that the CSMB improperly considered Mr. Morris’
years of service and satisfactory work history when it reinstated him. While the CSMB decision states
that it considered “Mr. Morris’ twelve (12) years of service and his satisfactory work history,” it is clear
from the record that, prior to that consideration, the CSMB found that Mr. Morris was a resident of
Shelby County, and that the County failed to demonstrate he was not a resident. Therefore, the
dispositive issue had already been decided in Mr. Morris’ favor prior to the CSMB considering his work
history. Further, as found by the trial court, the County “did not demonstrate that [the] CSMB’s opinion
that Gary Morris was a good employee of many years in any way swayed or otherwise prejudiced or
tainted their ultimate decision.”
                                                  - 11 -
