               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                March 1, 2016 Session


 TENNESSEE DEPARTMENT OF CORRECTION v. DAVID PRESSLEY

               Appeal from the Chancery Court for Davidson County
                  No. 141380I    Claudia Bonnyman, Chancellor

                        ________________________________

        No. M2015-00902-COA-R3-CV – Filed April 14, 2016
                     _________________________________


Employee of the Tennessee Department of Correction filed an administrative appeal
challenging the termination of his employment. The board of appeals reduced the
termination to a fourteen-day suspension. On appeal to the trial court, the chancery court
ruled that the burden of proof was improperly allocated to the Tennessee Department of
Correction in the hearing before the board of appeals. We reverse the decision of the
chancery court and conclude that the board of appeals properly allocated the burden to
the Tennessee Department of Correction. We further conclude that no substantial and
material evidence in the record exists to support the board of appeals‘ finding that the
employee committed negligence in the performance of his duties. We also reverse the
board of appeals‘ decision denying the employee‘s request for attorney‘s fees in the
prosecution of his appeal to the board of appeals and remand to the board of appeals for a
determination of those fees.


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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, and KENNY ARMSTRONG, JJ., joined.

Frank J. Scanlon and Samuel P. Helmbrecht, Nashville, Tennessee, for the appellant,
David Pressley.

Bryce Coatney, Nashville, Tennessee, for the appellee, Tennessee Department of
Correction.
                                                   OPINION

                                                  Background

       Respondent/Appellant David Pressley was employed by Petitioner/Appellee
Tennessee Department of Correction (―TDOC‖ or ―the State‖) since 2011 as a
correctional officer at the Morgan County Correctional Complex (―the prison‖). On
January 8, 2014, Mr. Pressley received a letter from the prison warden informing him of
his dismissal.1 The letter alleged that overnight on January 6–7, 2014, Mr. Pressley
allowed inmates to pilfer food from the prison kitchen while he was supervising the
cleaning of the prison kitchen and dining room, as shown by surveillance tape. In
addition, the letter alleged that Mr. Pressley wrongly entered a secured food storage area
and broke a tamper seal securing the area without filing an incident report. 2 According to
the warden, this behavior violated ―Morgan County Correctional Complex Post Orders,
For Post Assignment: Food Service/Dining Room – Security‖ (―Post Orders‖) and
Department of Human Resources Rules pertaining to incompetence and negligence.
Accordingly, the warden stated that Mr. Pressley‘s employment would be terminated
effective January 17, 2014. The letter further indicated that as a preferred service
employee, Mr. Pressley had the right to file a written complaint challenging his dismissal.
        Pursuant to the Tennessee Excellence, Accountability, and Management Act of
2012 (―TEAM Act‖), discussed in detail infra, Mr. Pressley initiated Step I review
challenging his dismissal by filing a complaint with the Commissioner of TDOC. The
complaint specifically alleged that ―[t]he department did not have cause to take such
action.‖ By letter dated February 3, 2014, however, the Commissioner of TDOC upheld
the termination of Mr. Pressley‘s employment. On or about February 12, 2014, Mr.
Pressley filed a request for a Step II review. On March 10, 2014, the Commissioner of the
Department of Human Resources upheld the dismissal, finding no ―violation by the
Department [of Correction] due to your failure to demonstrate how the Department [of
Correction] violated [Tennessee Code Annotated Section 8-30-316, the appeal procedures
statute].‖
       Mr. Pressley then initiated a Step III appeal with the board of appeals, arguing that
there was no cause for termination and that the punishment was too severe. In the course
of the appeal, the Chief Administrative Law Judge filed an order indicating that the
burden of proof would be assigned to TDOC pursuant to Tenn. R. & Regs. 1360-04-01-
.02(3) & (7) of the Uniform Rules of Procedure for Hearing Contested Cases before
Administrative Agencies. The letter indicated that if either party wished to contest the
determination regarding the burden, it could do so by filing a written brief and

1
 The letter indicated that Mr. Pressley had been orally informed of the warden‘s decision to dismiss him
earlier on January 8, 2014.
2
    According to the testimony, the seal on the area is in the nature of a ―zip-tie.‖
                                                         2
memorandum. TDOC filed a written brief and memorandum, arguing that the burden
should be placed upon Mr. Pressley because he was the moving party. Mr. Pressley
responded in opposition. An administrative law judge (―ALJ‖) ruled at a pre-hearing
conference that the burden issue would be decided by the ALJ who was ultimately
assigned to hear the case.
        The case proceeded to a contested hearing on June 23 and August 8, 2015. During
the hearing, the ALJ upheld the prior order assigning the burden of proof to TDOC. The
State presented testimony from the prison warden, David Sexton; the prison internal
affairs investigator, Lieutenant Shawn Phillips; and the prison food service manager,
Anna Cannon, concerning the allegations against Mr. Pressley. In addition, the State
relied upon surveillance video showing Mr. Pressley supervising the inmates while they
removed food from the secure food storage area. According to the State‘s witnesses, Mr.
Pressley allowed the four inmates that he was supervising to take as much as $5,000.00
worth of food from the prison‘s secure food storage area during the third shift on January
6, 2014. Mr. Pressley then allowed the inmates to cook the food and remove it from the
kitchen and dining room area, taking the food back to their cells. Lieutenant Phillips
testified that the purpose of the theft was to sell the food to other inmates. Lieutenant
Phillips alluded to the fact that contraband was later found in the inmates‘ cells, but did
not elaborate as to the identity of the inmates, specifically what was removed from the
secure food storage area, when the searches of the inmates took place, or specifically
what contraband was found in the inmates‘ cells.
        Ms. Cannon testified that there should have been no need to enter the secure food
storage area on the night of January 6, 2014 to obtain more food to feed third shift staff.
According to Ms. Cannon, second shift food service staff actually prepared the meal for
third shift, and the meal was left in heating boxes to be distributed at the appropriate time.
In the unlikely event that more food was needed, however, Ms. Cannon testified that an
officer or inmate would have been required to break a seal on the secure food storage area
to gain entry. Indeed, Ms. Cannon stated that prison staff noted that no seal was on the
food storage area on the morning of January 7, 2014.
       Warden Sexton likewise testified that it was unlikely that third shift kitchen staff
was required to prepare food for the third shift meal, as that preparation should have been
done by the second shift food service staff. Warden Sexton also testified that Mr. Pressley
filed no report concerning his entry into the secure food storage area or the necessity to
break a seal to do so. According to Warden Sexton, the proper procedure when a
correctional officer enters a secure food storage area to remove food, regardless of
whether the correctional officer received permission for entry, ―an incident report has to
be made showing exactly what [is] remov[ed] from the area so that they can deduct that
or adjust their inventory.‖ To support this procedure, Warden Sexton cited the Post
Orders, discussed in detail, infra.



                                              3
       The testimony of two correctional officers contradicted Lieutenant Phillips‘s
testimony wherein he indicated that the inmates were allowed to take contraband food
back to their cells overnight on January 6, 2014. According to these correctional officers,
the inmates were thoroughly searched upon returning to their housing units and no
contraband items of any kind were found. Both correctional officers testified that
although they are on the video surveillance of the events at issue in this case and were on
duty the night of the incident, no internal affairs investigators ever interviewed them
regarding the night in question.
        Mr. Pressley testified that he specifically called his supervisor Randy Human to
obtain permission to enter the secure food service area to prepare the meal for the third
shift. According to Mr. Pressley, the inmates he supervised were often required to assist
in preparing the third shift meal. Mr. Pressley testified that upon relieving the second
shift officer supervising the inmates, he first determined whether enough food was
previously prepared to cover all the third shift meals. Because there was insufficient food
already prepared, he opened the food secure area, which he testified was not sealed, and
allowed the inmates to obtain enough food to prepare the third shift meals. According to
Mr. Pressley, he was informed by Randy Human that he was only required to file an
incident report if he was required to break a tamper seal. Neither party called Randy
Human to testify.
       Gary Murray, a retired captain from the prison with over three years‘ experience at
the prison and over thirty years‘ experience in corrections, also testified for Mr. Pressley
regarding the third shift meal. According to Captain Murray, more meals may have been
needed on the night of January 7, 2014 because of inclement weather. Captain Murray
explained that on evenings where snow and ice covers the prison grounds, more staff
and/inmates are placed on third shift to clear the ice away for the morning. These
additional workers would require meals. Captain Murray agreed that the normal policy
was for the second shift food service staff to prepare the meal for third shift staff. Captain
Murray testified, however, that he was aware of situations where not enough food was
prepared and an officer is required to enter the secured food storage area to obtain more
food to prepare, after receiving permission to do so from a supervisor.
       After the conclusion of the hearing, the board of appeals issued a final ruling
containing detailed findings of fact and conclusions of law. The board of appeals found
that Mr. Pressley had advance permission to take food from the secure storage area from
his supervisor in order to prepare meals for the third shift that evening. Additionally, the
board of appeals found that there was not sufficient evidence that Mr. Pressley broke
tamper seals to enter the secure food storage area. The board also found that two
correctional officers assigned to search the inmates upon returning to the housing unit on
the night in question found no contraband, food or otherwise, on the inmates Mr. Pressley
had been supervising in the kitchen. The board of appeals thus concluded that TDOC had
not met its burden to show that Mr. Pressley committed a violation of the Post Orders or
Tennessee Department of Human Resources Rule 1120.10-.03(2) concerning

                                              4
incompetence. The Board did, however, find that TDOC carried its burden of proof with
regard to Tennessee Department of Human Resources Rule 1120.10-.03(3) ―negligence
in the performance of duty,‖ by failing to file a written report after going into the secure
food storage area. The board of appeals, therefore, issued Mr. Pressley a fourteen day
suspension without pay. The board of appeals also apparently denied Mr. Pressley‘s
request for attorney‘s fees.
       Both the State and Mr. Pressley filed petitions for judicial review in the Chancery
Court. The State argued that the ALJ improperly placed the burden on TDOC in the Step
III appeal, while Mr. Pressley argued that any punishment was not supported by the
evidence. The two cases were consolidated, and the trial court entered an order vacating
the board of appeals‘ decision. Specifically, the trial court found that the ALJ improperly
placed the burden to TDOC during the appeal, as Mr. Pressley was the non-prevailing
party in the previous proceeding. The trial court concluded that this error affected the
merits of the decision, vacated the board of appeals‘ final order, and remanded for further
proceedings, pretermitting the additional issues raised in the appeal to chancery court.
                                     Issues Presented
       Mr. Pressley appeals, raising the following issues, which are taken from his
appellate brief:

              1.     Did the ALJ err in assigning the burden of proof to
              TDOC pursuant to Tenn. R. & Regs. 1360-04-01-.02(3) & (7)
              of the Uniform Rules of Procedure for Hearing Contested
              Cases before Administrative Agencies rather than assigning
              the burden of proof to Mr. Pressley based upon the provisions
              of Tenn. Code Ann. §§ 8-30-316 and 8-30-318 of the
              Tennessee Excellence, Accountability, and Management Act
              of 2012, Tenn. Code Ann. § 8-30-101 et. seq.

              2.     For purposes of this case is TDOC or Mr. Pressley the
              party seeking to change the state of affairs with respect to any
              issue in this case under the terms of R. & Regs. 1360-04-01-
              .02(7) relative to assignment of the burden of proof in
              contested case proceedings?
              3.     Is there substantial and material evidence in the record
              of the contested case proceedings conducted in this matter to
              support the Conclusion of Law in the Final Order that Mr.
              Pressley was guilty of negligence in the performance of his
              duties as a Correction Officer for TDOC.
              4.    Did the board of appeals abuse its discretion in
              denying Mr. Pressley an award of attorney‘s fees and costs as
                                             5
              a ―successfully appealing employee‖ pursuant to Tenn. Code
              Ann. § 8-30-318(k)?
                                   Standard of Review
       This Court reviews this appeal under the narrow standard contained in the
Uniform Administrative Procedures Act (―UAPA‖). See Tenn. Code Ann. § 8-30-318
(―Decisions of the board of appeals are subject to judicial review in accordance with the
Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and the rules and
regulations promulgated thereunder, in each case as amended in this chapter.‖); see also
Swift Roofing, Inc. v. State, No. M2010-02544-COA-R3-CV, 2011 WL 2732263, at *4
(Tenn. Ct. App. July 13, 2011) (―This Court, as well as the trial court, reviews the
Commission‘s decision under the narrowly defined standard of review contained in the
UAPA, Tenn. Code Ann. § 4-5-322(h), rather than under the broad standard of review
used in other civil appeals.‖) (citing Davis v. Shelby Cnty. Sheriff’s Dept., 278 S.W.3d
256, 264 (Tenn. 2009)). Pursuant to Tennessee Code Annotated Section 4-5-322:
              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.
Tenn. Code Ann. § 4-5-322(h).
        Issues of statutory interpretation, however, present questions of law that this Court
reviews under a de novo standard with no presumption of correctness. Jones v. Bureau
of TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002) (―Judicial review of an
agency‘s construction of a statute and its application of the statute to the facts of the case
is a determination involving a question of law.‖) (citing Patterson v. State Dept. of Labor

                                              6
and Workforce Dev., 60 S.W.3d 60, 62 (Tenn. 2001)). Accordingly, we independently
construe this provision, without deference to the interpretations rendered by TDOC or the
chancery court. Jones, 94 S.W.3d at 501; Metro. Gov’t of Nashville & Davidson Cnty. v.
Metro. Employee Ben. Bd., No. M2006-00720-COA-R3-CV, 2007 WL 1805151, at *5
(Tenn. Ct. App. June 22, 2007); McNiel v. Cooper, No. M2005-01206-COA-R3-CV,
2007 WL 969407, at *3 (Tenn. Ct. App. Mar. 13, 2007). ―Importantly, a de novo review
in this case comports with the UAPA standard allowing for reversal where the
administrative tribunal‘s decision violates statutory provisions.‖ See Metro. Gov’t, 2007
WL 1805151, at *5 (citing Tenn. Code Ann. § 4-5-322(h)(1)).
                                        Analysis
                                            I.
      The first issue in this case concerns which party shouldered the burden of proof at
the Step III appeal before the board of appeals. The consideration of this issue is
governed by the TEAM Act. In 2012, the Tennessee General Assembly enacted the
TEAM Act for the express purpose of:
             [E]stablish[ing] in the state a system of personnel
             administration that will attract, select, retain and promote the
             best employees based on merit and equal opportunity, and
             free from coercive political influences. Because the citizens
             of the state deserve services from the best employees, the goal
             of the state personnel system is to provide technically
             competent employees to render impartial services to the
             public at all times and to render such services in an ethical
             and honorable manner. Specifically, the intent of the general
             assembly is to further this purpose by allowing agencies
             greater flexibility in personnel management in order to
             enhance the overall effectiveness and efficiency of state
             government. The general assembly further intends that state
             government operate within a framework of consistent best
             practices across all state agencies and entities and that the
             state‘s most valued resource, its employees, be managed in a
             manner designed to enhance work force productivity and
             demonstrate sound business practices.
Tenn. Code Ann. § 8-30-101. The TEAM Act applies to ―officers and positions of trust or
employment in the service of state government in the executive branch and all boards,
commissions and agencies of state government‖ other than some express exceptions not
at issue in this case.




                                            7
       Because of the relatively recent enactment of the TEAM Act, no Tennessee
appellate court has been called upon to interpret and enforce its requirements. In
interpreting all statutes, however, we are guided by the familiar rules of statutory
construction:
                     ―The most basic principle of statutory construction is
             to ascertain and give effect to the legislative intent without
             unduly restricting or expanding a statute‘s coverage beyond
             its intended scope.‖ Owens v. State, 908 S.W.2d 923, 926
             (Tenn. 1995) (citing State v. Sliger, 846 S.W.2d 262, 263
             (Tenn.1993)). ―The text of the statute is of primary
             importance.‖ Mills v. Fulmarque, 360 S.W.3d 362, 368
             (Tenn. 2012). A statute should be read naturally and
             reasonably, with the presumption that the legislature says
             what it means and means what it says. See BellSouth
             Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct.
             App. 1997).
                     Statutes that relate to the same subject matter or have a
             common purpose must be read in pari materia so as to give
             the intended effect to both. ―[T]he construction of one such
             statute, if doubtful, may be aided by considering the words
             and legislative intent indicated by the language of another
             statute.‖ Graham v. Caples, 325 S.W.3d 578, 582 (Tenn.
             2010) (quoting Wilson v. Johnson Cnty., 879 S.W.2d 807,
             809 (Tenn. 1994)). We seek to adopt the most ―reasonable
             construction which avoids statutory conflict and provides for
             harmonious operation of the laws.‖ Carver v. Citizen Utils.
             Co., 954 S.W.2d 34, 35 (Tenn.1997). Issues of statutory
             interpretation present a question of law, which we review de
             novo on appeal, giving no deference to the lower court
             decision. Mills, 360 S.W.3d at 366; Lind v. Beaman Dodge,
             Inc., 356 S.W.3d 889, 895 (Tenn. 2011).

In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015). In addition,

             It is the duty of this court, where a statute is susceptible of
             two interpretations, one in harmony with, and the other in
             violation of, constitutional provisions, to give it that
             interpretation in harmony with the Constitution. But this
             principle does not authorize the court to give to an act an
             interpretation merely to bring it within the constitutional
             limitation. Where the act is unambiguous and susceptible of
             only one interpretation, it must be given that construction,

                                            8
                  whatever the consequences may be when tested by the
                  Constitution.

Ellenburg v. State, 215 Tenn. 153, 158, 384 S.W.2d 29, 31 (Tenn. 1964) (citing of Exum
v. Griffis Newbern Co., 144 Tenn. 239, 246–47, 230 S.W. 601, 603 (Tenn. 1921)).

       Here, there is no dispute that Mr. Pressley‘s employment was governed by the
TEAM Act and that he is properly classified as a preferred service employee. Under the
TEAM Act, a preferred service employee ―who has successfully completed probation[,]‖3
may only ―be dismissed, demoted, or suspended for cause.‖ Tenn. Code Ann. § 8-30-
316(a). The dismissal takes effect immediately ―after the appointing authority gives
notice to such employee and files a written statement with the commissioner.‖ Id. The
preferred service employee, however, is entitled to ―appeal a dismissal, demotion, or
suspension‖ under Tennessee Code Annotated Section 8-30-318.

       Pursuant to the appeal provisions of the TEAM Act, Mr. Pressley was required to
―file a complaint concerning the application of a law, rule, or policy to the dismissal,
demotion, or suspension of the employee.‖ Tenn. Code Ann. § 8-30-318(b). The TEAM
Act reiterates that the ―complaint filed under this section must identify the law, rule, or
policy that was allegedly violated.‖ Tenn. Code Ann. § 8-30-318(d). The TEAM Act
further describes the three step appeal process. Pursuant to ―Step I‖:

                  The complainant shall reduce the complaint to writing and
                  file the complaint with the complainant‘s appointing
                  authority. The appropriate appointing authority or designee
                  shall conduct any investigation considered necessary, meet
                  with the complainant in person, and issue a decision, in
                  writing, not later than fifteen (15) days after the date the
                  appointing authority receives the complaint. If the appointing
                  authority does not issue a decision fifteen (15) days after the
                  appointing authority receives the complaint, the complainant
                  may appeal to the commissioner by filing the complaint in
                  accordance with Step II.

Tenn. Code Ann. § 8-30-318(h)(1)(A). The TEAM Act describes the ―Step II‖ appeal as
follows:

                  (i) Step II: If the appointing authority does not find in favor of
                  the complainant, the complainant may appeal to the
                  commissioner of human resources by filing the complaint not
                  later than fourteen (14) days after the date of the appointing

3
    There is no dispute that Mr. Pressley completed any applicable probation period.
                                                      9
             authority‘s written decision. The commissioner of human
             resources shall review the complaint and the appointing
             authority‘s decision, and issue a decision, in writing, not later
             than thirty (30) days after the date the complaint was filed
             with the commissioner. If the commissioner does not issue a
             decision thirty (30) days after the commissioner receives the
             complaint, the complainant may appeal to the board of
             appeals in accordance with Step III.
                    (ii) At Step II of the appeal procedure, it is the duty of
                    the employee to provide written argument to the
                    commissioner setting out why the employee believes
                    the Step I decision was in error and ought to be
                    overturned, reduced, or amended. An employee failing
                    to provide such information to the commissioner shall
                    be considered in default and forfeits the ability to
                    appeal to Step III.

Tenn. Code Ann. § 8-30-318(h)(1)(B). Thus, it appears that a Step II appeal is only
available if the appointing authority does not rule in favor of the complainant.

      Either party may then appeal the decision from the Step II appeal to the board of
appeals in a ―Step III‖ appeal:

             Step III: The complainant or state agency may appeal in
             writing to the board of appeals not later than fourteen (14)
             days after the date the complainant, or in the case of a state
             agency, the state agency receives written notice of the action
             taken by the commissioner of human resources. Within ten
             (10) days after the receipt of the appeal, the administrative
             law judge assigned to assist the board of appeals in the
             proceedings related to the appeal shall determine whether all
             previous procedural requirements were completed properly
             and in a timely manner. If a procedural requirement has not
             been met, the appeal shall be dismissed. If the procedural
             requirements have been met, the board of appeals shall
             conduct proceedings in accordance with the Uniform
             Administrative Procedures Act, compiled in title 4, chapter 5,
             as modified herein, to determine if the law, rule, or policy
             specified in the complaint was violated.

Tenn. Code Ann. § 8-30-318(h)(1)(C). Thus, a Step III appeal is conducted pursuant to
the rules established in the Uniform Administrative Procedures Act (―UAPA‖),


                                            10
Tennessee Code Annotated Section 4-5-101 through 301, except as modified by the
TEAM Act.
       At the Step III appeal before the board of appeals, the ALJ presiding over the case
ruled that TDOC would bear the ultimate burden of proof. Indeed, the ALJ indicated that
the board of appeals‘ objective was to consider whether: ―(1) the violations charged are
true, and (2) [the state] took appropriate discipline.‖ Here, the trial court disagreed, and
instead ruled that Mr. Pressley properly bore the burden of proof before the board of
appeals, relying on the language of the TEAM Act:
                      T.C.A. § 8-30-318 indicates that either party — the
              Complainant or the State Agency . . . may appeal in writing to
              the Board of Appeals, Whichever one did not prevail at the
              Step II procedure may appeal in writing to the Board of
              Appeals. Strongly implicit in that description of the appeal
              right, the Court finds, is that the non-prevailing party at the
              Step II procedure has the burden of proof at the next level of
              the process, which is the Board of Appeals.
                      Reading TCA §8-30-316 together with TCA §8-30-
              318, there is no adverse employment action and hence no
              appeal until the State agency employer has given written
              notice to the employee and the Commissioner of Human
              Resources, that the disciplinary action is being taken. That is
              the triggering event for the employee to file a Step I
              complaint. Mr. Pressley here did so, asserting that that there
              was no cause for his dismissal. And because he did not
              prevail at Step I, he had the opportunity to, and did move
              forward to Step II, again to assert that the Department of
              Correction had no cause to dismiss him. The Step II decision,
              however, by Rebecca Hunter, the Commissioner of the
              Department of Human Resources, was to uphold the
              dismissal, on the basis that the information given to her by the
              parties for consideration had indicated culpable wrongdoing
              by Mr. Pressley. Thus, when Mr. Pressley appealed that
              determination to Step III, the Board of Appeals, it was his
              burden to go forward at Step III to show that there was no
              cause for him to be dismissed. The Court thus finds that the
              Board of Appeals did apply an erroneous burden of proof.
Mr. Pressley argues, however, that the trial court erred in its conclusion based upon the
Tennessee caselaw regarding de novo appeals and applicable provisions of the UAPA.




                                            11
        The dispute in this case concerns whether Mr. Pressley, as the employee-
complainant, or TDOC, bears the ultimate burden of proof in the Step III appeal. ―The
duty of proving or disproving, the facts in dispute on an issue between the parties to an
action, is termed the burden of proof.‖ Gibson’s Suits in Chancery § 13.03 (8th ed. 2004).
Nothing in the TEAM Act specifically addresses the burden of proof issue raised in this
appeal.4 The Step III Appeal outlined in the TEAM Act, however, specifically references
the UAPA. The UAPA authorizes the secretary of state to adopt model rules outlining the
appropriate procedures for use in administrative proceedings. See Tenn. Code Ann. § 4-5-
219(a). According to one such rule, the Uniform Rules of Procedure for Hearing
Contested Cases Before State Administrative Agencies (―Uniform Rules‖), the party who
initiates the proceedings is the moving party and ―usually bears the ultimate burden of
proof.‖ Tenn. Comp. R. & Regs. 1360-04-01-.02(3). However, the Uniform Rules go on
to explain that:
                In some cases . . . the party who initiated the proceedings will
                not be the party with the burden of proof on all issues. In such
                cases, the administrative judge will determine the order of
                proceedings, taking into account the interests of fairness,
                simplicity, and the speedy and inexpensive determination of
                the matter at hand. The ―petitioner‖ is usually a state agency
                or department.
Id. Once the burden of proof has been assigned, the Uniform Rules detail how that
burden should be met:
                The ―burden of proof‖ discussed in the definition of
                ―petitioner‖ above refers to the duty of a party to present
                evidence on and to show, by a preponderance of the evidence,
                that an allegation is true or that an issue should be resolved in
                favor of that party. A ―preponderance of the evidence‖ means
                the greater weight of the evidence or that, according to the
                evidence, the conclusion sought by the party with the burden
                of proof is the more probable conclusion. The burden of
                proof is generally assigned to the party who seeks to
                change the present state of affairs with regard to any


4
  In its brief, the State argues that the TEAM Act preempts the burden of proof rules applicable under the
UAPA. Specifically, the State argues that because the ALJ‘s authority is limited by the TEAM Act, the
ALJ has no authority to determine to which party the burden should be allocated. Regardless of whether
the ALJ has such authority, this Court certainly has authority to interpret and apply statutory provisions.
Furthermore, as stated above, we are reviewing this issue de novo with no deference to the ALJ‘s
determination. Furthermore, we note that the TEAM Act contains no express provisions regarding burden
of proof in the Step III Appeal. Accordingly, we find the State‘s argument regarding the preemptive effect
of the TEAM Act to this issue unpersuasive.
                                                    12
              issue. The administrative judge makes all decisions regarding
              which party has the burden of proof on any issue.
Tenn. Comp. R. & Regs. 1360-04-01-.02(7) (emphasis added).
        Application of the Uniform Rules to the facts of this case, however, does not result
in an obvious conclusion. First, we note that a review of the administrative record in this
case indicates that Mr. Pressley was the complainant pursuant to the TEAM Act in that he
initiated the three-step appeals process. Furthermore, having lost his Step II appeal, Mr.
Pressley was petitioning the board of appeals in the Step III appeal for reinstatement.
Indeed, nothing in Mr. Pressley‘s brief to this Court argues that he was not properly
deemed the petitioner with regard to his Step III appeal. Despite this fact, the Uniform
Rules indicate that the state is typically the petitioner in an administrative proceeding.
See Tenn. Comp. R. & Regs. 1360-04-01-.02(3). Further, it could be argued that either
party was seeking to change the present state of affairs—Mr. Pressley by appealing the
denial of his Step II appeal to the board of appeals or the State by seeking to change Mr.
Pressley‘s employment status. Indeed, a review of the few cases that have considered this
issue reveals that they do not consistently place the burden on either the state agency or
the complaining party. See Gen. Motors Corp. v. Tennessee Motor Vehicle Comm’n,
No. M2008-00082-COA-R3-CV, 2008 WL 4756809, at *6 (Tenn. Ct. App. Oct. 30,
2008) (allocating the burden to an automobile dealer who sought to relocate a car
dealership); Jones v. Bureau of TennCare, 94 S.W.3d 495, 500 (Tenn. Ct. App. 2002)
(allocating the burden of proof to the State on the issue of whether certain services
currently provided to a patient were no longer medically necessary); State v. Hartley, No.
89-74-II, 1989 WL 44905, at *3 (Tenn. Ct. App. May 5, 1989), aff’d, 790 S.W.2d 276
(Tenn. 1990) (allocating the burden to the State in a case where the State sought to
destroy a dangerous dog); see also Grier v. Goetz, 402 F. Supp. 2d 876, 928 (M.D. Tenn.
2005), order clarified, 421 F. Supp. 2d 1080 (M.D. Tenn. 2006) (noting that because
enrollees are typically the petitioners in a medical appeal, the burden of proof in all
medical appeals ―is generally already on the enrollees‖ and ―the State should not bear the
burden of disproving medical necessity‖). Because the Uniform Rules cannot resolve
this issue, we must look to other authority.
       Mr. Pressley argues that because the Step III appeal is a de novo proceeding, this
Court should take guidance from other cases involving de novo appeals of administrative
decisions. Under these cases, Mr. Pressley contends that the ultimate burden should be on
TDOC to sustain the charges that led to the termination. We acknowledge that the parties
agreed at oral argument that the Step III appeal before the board of appeals is conducted
de novo.
      Mr. Pressley‘s argument relies primarily on two Tennessee Supreme Court cases
concerning the Teacher Tenure Act, Cooper v. Williamson County Board of Education,
746 S.W.2d 176 (Tenn. 1987), and Saunders v. Anderson, 746 S.W.2d 185 (Tenn. 1987).
Under the Teacher Tenure Act, a tenured teacher who ―is dissatisfied with the

                                            13
administrative decision of a school board regarding suspension or dismissal,‖ may bring a
petition for ―judicial review of the board‘s actions pursuant to T.C.A. § 49-5-513.‖
Cooper, 746 S.W.2d at 179. The petition required to pursue judicial relief under
Tennessee Code Annotated Section 49-5-513, ―shall state briefly the issues involved in
the cause, the substance of the order of the board, or the respects in which the petitioner
claims the order of the board is erroneous, and praying for an accordant review.‖ Id. at
180 (quoting Tenn. Code Ann. § 49-5-513(b)) (emphasis added by Cooper Court). Based
upon this language, the trial court limited its review to only whether the evidence
preponderated for or against the determination of the school board. Cooper, 746 S.W.2d
at 178. The trial court ultimately found that the evidence preponderated in favor of the
school board‘s decision. The Tennessee Supreme Court thereafter granted a direct appeal.
       The Tennessee Supreme Court first concluded that the trial court improperly
narrowed the scope of review permitted by the Teacher Tenure Act. Instead, the Cooper
Court concluded that a teacher appealing his or her dismissal is entitled to a de novo
hearing in the chancery court, with no presumption of correctness afforded to the
administrative body‘s decision. Cooper, 746 S.W.2d at 182. The Court went further,
however, to establish the appropriate allocation of the burdens of production and proof in
judicial review under the Teacher Tenure Act:
                    At the hearing before the school board, the burden of
             proof rests upon the party preferring the charges against the
             teacher. Williams v. Pittard, [] 604 S.W.2d [845,] 850 [(Tenn.
             1980)]. When a teacher dissatisfied with the administrative
             decision brings the board‘s action to the Chancery Court for
             judicial review, then the order of proof but not the burden of
             proof shifts. In the [c]hancery [c]ourt, the plaintiff‘s petition
             raises the issues for review, stating the substance of the
             board‘s actions and the errors made by the board in its
             decision, and thus the plaintiff must present a prima facie case
             to substantiate the allegations of the pleadings; however, the
             burden of proof regarding the charges against the teacher does
             not shift to the teacher and remains on the same party both
             before the board and in [c]hancery [c]ourt. Since the hearing
             in [c]hancery [c]ourt is de novo and no presumption of
             correctness attaches to the board‘s decision, the burden
             remains on the party that bore it before the board but the
             order of proof is shifted under the statute to the party filing
             the petition for review because that party is challenging the
             validity of the administrative decision, the existence of which
             is clearly presumed by the terms of the statute. The plaintiff
             must, therefore, demonstrate the error in the board‘s action to
             satisfy the requirements of the statute. Once the plaintiff
             establishes a prima facie case, the defendant then bears the
                                            14
             burden of showing that the action taken by the board is
             appropriate and that the evidence is sufficient to justify the
             board‘s action. The plaintiff may then have the opportunity to
             rebut any proof proffered by the defendant.
Id. (footnote omitted). The Cooper Court then remanded the case for the trial court to
follow the above parameters in its judicial review of the tenured teacher‘s dismissal. Id.
at 184.
       Shortly thereafter, the Tennessee Supreme Court was faced with an argument
regarding the application of the burden framework established in Cooper. See generally
Saunders v. Anderson, 746 S.W.2d 185 (Tenn. 1987). In Saunders, a tenured teacher
argued that she was improperly required to bear the burden of proof at the judicial review
hearing of her dismissal, where the trial court dismissed her petition at the close of her
own proof. The Saunders Court further illuminated the burden framework established in
Cooper, stating:
             The burden of proof regarding the charges themselves never
             shifts from the proffering party to the teacher at any point in
             the proceedings before the board or in the Chancery Court. If
             the proof presented by the plaintiff fails to demonstrate any
             error in the board‘s decision or otherwise to substantiate the
             allegations of the petition for de novo review, then the trial
             court could exercise its discretion, upon a proper motion to
             dismiss, especially where the evidence presented by the
             plaintiff shows that the board‘s action was justified in any
             case. . . .
                                         * * *
             Since the teacher is merely required to make a prima facie
             case in the Chancery Court to satisfy the terms of the statute,
             ordinarily the defendant must then carry its burden to
             demonstrate that the evidence justifies the board‘s actions.
Saunders, 746 S.W.2d at 189. The Saunders Court concluded, however, that the trial
court did not err in dismissing the teacher‘s judicial review petition where her own
evidence established that there was sufficient cause to sustain her termination. Id. (―In
this case, the Plaintiff‘s own evidence, which included testimony by the primary actors
who proffered the charges and had personal knowledge concerning the charges against
Plaintiff, happened to provide a sufficient basis upon which the Chancellor could fully
determine the merits of the case.‖). In denying a petition to rehear, the Saunders Court
further explained the prima facie showing required by the complaining employee:



                                           15
             We emphasize that the showing required for the Plaintiff‘s
             prima facie case is de minimis. A de novo review of a
             Teacher Tenure decision in Chancery Court is similar to but
             not exactly like a trial de novo in [c]ircuit [c]ourt on appeal
             from [g]eneral [s]essions. The terms of the statute require the
             plaintiff to make allegations concerning the board‘s action. A
             prima facie case could consist of any number of allegations,
             including but not limited to:
             1. A deprivation of a statutorily guaranteed right, such as
             failure to give proper notice as required by T.C.A. § 49-5-
             511(a)(4), or failure to provide a timely pre-termination due
             process hearing.
             2. That dismissal or suspension was not justified by the
             evidence or was based on evidence irrelevant to the charges; a
             failure to carry the burden of proof at the board hearing; or
             improperly admitted evidence that unduly prejudiced the
             board.
             3. Improper charges were brought against the teacher.
             Some of these could be shown on the face of the record made
             at the board hearing, but others would require at least a
             minimal degree of proof to support the allegations of the
             petition to review. Nevertheless, we reiterate that, depending
             on the allegations in the petition, a de minimis showing is all
             that is necessary in these cases to constitute a prima facie case
             sufficient to comply with the language of the statute.

Saunders, 746 S.W.2d at 190–91. Thus, under the Teacher Tenure Act, despite the fact
that the teacher must make some minimal showing as to how the school board decision
was erroneous, having met that de minimis burden, the ultimate burden to sustain the
charges resulting in the dismissal never shifts from the school board.
        The State argues, however, that the rule applicable under the Teacher Tenure Act
should not apply in this case because unlike under the Teacher Tenure Act, the dismissal
or suspension of an employee under the TEAM Act is effective immediately upon notice
to the employee and filing with the commissioner. See Tenn. Code Ann. § 8-30-316(a).
Under the Teacher Tenure Act, however, the filing of a petition to challenge a dismissal
―shall suspend the order of the board pending a decision by the chancellor.‖ Tenn. Code
Ann. § 49-5-513(e) (noting, however, that the teacher is not permitted to resume teaching
until a final determination). Furthermore, while the Teacher Tenure Act provides that the
purpose of the hearing contemplated by Tennessee Code Annotated Section 49-5-513 is
to make a ―determination of whether or not a teacher should be dismissed, suspended, or
                                            16
reinstated‖ after a full evidentiary hearing, Cooper, 746 S.W.2d at 182, the State contends
that pursuant to the plain language of the TEAM Act the only question in a Step III
appeal is ―whether the employer violated a rule materially affecting the act to discipline
the employee.‖ Instead, the State argues that the procedure outlined in the TEAM Act is
more akin to employment discrimination suits of at-will employees.
       Despite the State‘s decision to focus only on differences apparent in the language
of the Teacher Tenure Act and the TEAM Act, from our review of Cooper and Saunders,
the Tennessee Supreme Court‘s holding that the ultimate burden of proof was assigned to
the State did not result from the express language of the Teacher Tenure Act, but from
the due process protections afforded to tenured teachers. Indeed, in support of its holding
that the ultimate burden rests with the state agency to sustain charges against a tenured
teacher, the Cooper Court cited the Tennessee Supreme Court‘s earlier decision in
Williams v. Pittard, 604 S.W.2d 845 (Tenn. 1980). In Williams, a tenured teacher was
dismissed for inefficiency and insubordination. Id. at 846. The teacher sought judicial
review and the trial court reversed on grounds that the initial hearing deprived her of due
process and that the evidence was insufficient to sustain the charges. On appeal, the
question concerned what process was due under the Teacher Tenure Act. According to
the Tennessee Supreme Court:
              While the Tennessee Teachers‘ Tenure Act may not provide
              tenure[d] teachers the full range of procedural safeguards that
              are mandated for criminal defendants by our state and federal
              constitutions, the Act does make it clear that, at a minimum,
              notice and a hearing are required. It has further been
              established that a tenure[d] teacher is entitled to a ―due
              process‖ hearing prior to deprivation of the significant
              property interest which a teacher obtains upon being granted
              tenure. See, e. g., Sullivan v. Brown, 544 F.2d 279, 284 (6th
              Cir. 1976). Of course, a ―due process‖ hearing entails flexible
              standards which may require differing procedural safeguards
              according to the circumstances of individual cases. Cafeteria
              and Restaurant Workers v. McElroy, 367 U.S. 886, 81 S.Ct.
              1743, 6 L.Ed.2d 1230 (1961).
                     Unquestionably, one who is deprived of a significant
              property interest is entitled to a due process hearing ―at a
              meaningful time and in a meaningful manner.‖ Armstrong v.
              Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d
              62, 66 (1965).
Williams, 604 S.W.2d at 849.



                                            17
      With this framework in mind, the Williams Court then considered the question of
whether the administrative board properly allocated the burden of proof. Id. According to
the Williams Court, the ultimate burden of proof should be placed on the school board:
                Although very few courts have addressed this issue, it seems
                clear that regardless of the particular statutory scheme
                involved, a teacher with tenure cannot be required to prove
                his or her innocence or be required to show cause why he or
                she should be able to continue as a teacher.
Williams, 604 S.W.2d at 849 (citing In re Swink, 132 Pa.Super. 107, 200 A. 200 (1938);
See also Mass v. Board of Education, 39 Cal.Rptr. 739, 61 Cal.2d 612, 394 P.2d 579
(1964); School District v. Thompson, 121 Colo. 275, 214 P.2d 1020 (1950)). Thus, due
process, rather than the express language of the Teacher Tenure Act, demanded that the
burden be placed on the agency to show inefficiency or insubordination to sustain the
dismissal, rather than on the teacher to show an error in the administrative agency‘s
decision that would support reinstatement. Williams, 604 S.W.2d at 849; see also
Saunders, 746 S.W.2d at 189; Cooper, 746 S.W.2d at 182.
       The State argues, however, that no due process right attaches to a preferred service
employee‘s interest in continued employment under the TEAM Act. Specifically, the
State argues that although the now-repealed civil service system under which state
employees were previously employed granted employees due process protections related
to their dismissal,5 the Tennessee General Assembly did not intend to create the same
rights with the enactment of the TEAM Act. As such, the State argues that under the
TEAM Act, ―the status of ‗employee‘ is not a right, and the status can be lost
immediately.‖ From our review of the plain language of the TEAM Act, however, we
cannot agree that preferred service employees who have successfully completed
probation do not have a protected property interest in their continued employment.
        According to this Court:
                        The Fourteenth Amendment to the United States
                Constitution protects individuals against government
                deprivations of ―life, liberty or property without due process
                of law.‖ U.S. Const. amend. XIV, § 1. In a due process case,
                the court follows an established two-step analysis determining
                whether the plaintiff was deprived of a protected interest and,
                if so, what process is due.


5
  See Tenn. Code Ann. § 8-30-331 (2011) (specifically stating that certain employees have a ―property
right‖ to their positions and that ―no suspension, demotion, dismissal or any other action which deprives a
regular employee of such employee‘s ‗property right‘ will become effective until minimum due process is
provided‖), repealed by 2012 Pub. Acts, c. 800, § 41, eff. Oct. 1, 2012.
                                                    18
Armstrong v. Tenn. Dep’t of Veterans Affairs, 959 S.W.2d 595, 597–98 (Tenn. Ct. App.
1997) (citing Rowe v. Board of Educ. of Chattanooga, 938 S.W.2d 351, 354 (Tenn.
1996), cert. denied, 520 U.S. 1128, 117 S.Ct. 1271, 137 L.Ed.2d 349 (1997)). Thus,
―[t]he threshold consideration with regard to any procedural due process claim is whether
the plaintiff has a liberty or property interest that is entitled to protection[.]‖ Martin v.
Sizemore, 78 S.W.3d 249, 262 (Tenn. Ct. App. 2001) (citing Rowe, 938 S.W.2d at 354:
Armstrong, 959 S.W.2d at 597–98).
       ―Property interests are not created by the federal constitution. Instead, they are
created and defined ‗by existing rules or understandings that stem from an independent
source such as state law.‘‖ Rowe, 938 S.W.2d at 354 (citing Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). ―To
qualify for constitutional protection, a property interest must be more than a ‗unilateral
expectation‘ or an ‗abstract need or desire.‘ It must be a ‗legitimate claim of entitlement‘
created and defined by ‗existing rules or understandings that stem from an independent
source such as state law.‘‖ Martin, 78 S.W.3d at 262 (citing Roth, 408 U.S. at 577, 92
S.Ct. at 2709). ―The types of interests entitled to protection as property interests are
varied. However, they share the common characteristic that they are an individual
entitlement, grounded in state law[] that cannot be removed except ‗for cause.‘‖ Martin,
78 S.W.3d at 262. Indeed, the United States Supreme Court has stated that ‗[t]he
hallmark of property . . . is an individual entitlement grounded in state law, which cannot
be removed except ‗for cause.‘‖ Logan v. Zimmerman Brush Co., 455 U.S. 422, 430,
102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) (emphasis added); see also Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 538–39, 105 S. Ct. 1487, 1491, 84 L. Ed. 2d 494
(1985) (holding that a statute providing that employees could only be dismissed for
―misfeasance, malfeasance, or nonfeasance‖ related to their jobs ―plainly supports the
conclusion . . . that respondents possessed property rights in continued employment‖);
Case v. Shelby Cnty. Civil Serv. Merit Bd., 98 S.W.3d 167, 172 (Tenn. Ct. App. 2002)
(―The Merit Act stipulates that classified county employees may be terminated only for
just cause. . . . Such employees possess a property interest in their continued employment
which may not be deprived by the State without due process.‖) (internal citation omitted).
       As previously discussed, there is no dispute that Mr. Pressley was a preferred
service employee who had successfully completed probation. Accordingly, pursuant to
the plain language of the TEAM Act, TDOC was only entitled to dismiss, demote, or
suspend Mr. Pressley ―for cause.‖ Tenn. Code Ann. §8-30-316(a). Thus, Mr. Pressley and
other similarly situated employees have a ―legitimate claim of entitlement‖ to continued
employment absent cause for their dismissal pursuant to the express requirements of the
TEAM Act. Martin, 78 S.W.3d at 262 (citing Roth, 408 U.S. at 577, 92 S.Ct. at 2709).
Based upon the unequivocal holding in Logan and its progeny, the fact that Mr. Pressley
could only be dismissed for cause ―plainly supports the conclusion‖ that he and other
similarly situated employees retain a protected property interest in continued
                                             19
employment. See Logan, 455 U.S. at 430, 102 S.Ct. at 1155; Loudermill, 470 U.S. at
538–39, 105 S. Ct. at 1491; Case, 98 S.W.3d at 172; Armstrong, 959 S.W.2d at 597–98.
        Because we have determined that Mr. Pressley has a protected property, we must
now consider what process is due. See Armstrong, 959 S.W.2d at 598 (citing Rowe, 938
S.W.2d at 354). The State suggests that this Court should look no further than the TEAM
Act to determine the process to which the employee is entitled—that is, simply the right
to an administrative hearing to determine the narrow issue of ―whether the appointing
authority violated a law, rule, or policy applicable to the appointing authority‘s action.‖
Under this narrow reading of the TEAM Act, the State suggests that the burden would
clearly be on the employee to show such a violation as to do the opposite would be to
illogically require TDOC to prove a negative. C.f. Thompson v. N. Missouri R. Co., 51
Mo. 190, 192 (1873) (―It seems to be illogical and not required by the rules of good
pleading, to compel a plaintiff to aver and prove negative matters in cases of this kind.‖);
Penn Clothing Co. v. U.S. Exp. Co., 48 Pa. Super. 520, 526 (1912) (―[W]e think [it]
would be illogical in that it would require of the defendant an attempt to prove a
negative[.]‖).
        A similar argument was made by the administrative board, and rejected by the
United States Supreme Court, in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). In Loudermill, a security guard appealed the
termination of his employment, arguing that he was denied due process. After confirming
that the security guard had a protected property interest in continued employment, the
Loudermill Court was faced with the question of what process was due. Id. at 538–39.
The administrative board argued that any right that might attach to the security guard‘s
employment was ―defined by, and conditioned on, the legislature‘s choice of procedures
for its deprivation.‖ Id. at 539. Because the procedures outlined by the state statute were
adhered to, the administrative board contended that no due process violation occurred. Id.
at 539–40.
       The Loudermill Court rejected this argument, however, holding that because
―‗minimum [procedural] requirements [are] a matter of federal law, they are not
diminished by the fact that the State may have specified its own procedures that it may
deem adequate for determining the preconditions to adverse official action.‘‖ Id. at 541
(quoting Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552
(1980)); see also Logan, 455 U.S. at 432, 102 S.Ct. at 1155 (holding that allowing the
State to dictate the procedure it deems adequate for depriving an individual of a protected
property interest, ―would allow the State to destroy at will virtually any state-created
property interest‖). Instead, the Court held that:
              ―Property‖ cannot be defined by the procedures provided for
              its deprivation any more than can life or liberty. The right to
              due process ―is conferred, not by legislative grace, but by
              constitutional guarantee. While the legislature may elect not
                                            20
              to confer a property interest in [public] employment, it may
              not constitutionally authorize the deprivation of such an
              interest, once conferred, without appropriate procedural
              safeguards.‖
Loudermill, 470 U.S. at 541, 105 S. Ct. at 1493 (quoting Arnett v. Kennedy, 416 U.S.
134, 167, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part and
concurring in result in part). Thus, ―once it is determined that the Due Process Clause
applies, ‗the question remains what process is due.‘. . . The answer to that question is not
to be found in the [state] statute.‖ Loudermill, 470 U.S. at 541, 105 S. Ct. at 1493
(quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484
(1972)). Instead, this issue ―must be analyzed in constitutional terms.‖ Logan, 455 U.S.
at 432, 102 S.Ct. at 1155 (quoting Vitek, 445 U.S. at 491, 100 S.Ct. at 1263).
            The Tennessee Supreme Court in Thompson v. Memphis City Sch. Bd. of
Educ., 395 S.W.3d 616 (Tenn. 2012), analyzed the minimum required by due process
when a public employee ―possesses a constitutionally protected property interest in
continued employment‖:
              At a minimum, the Due Process Clause of the Fourteenth
              Amendment of the United States Constitution entitles a
              tenured teacher to pre-termination notice of the charges
              against her, an explanation of the employer‘s evidence, and
              an opportunity to present her side of the story to the
              employer. [Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
              532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)];
              Gunasekera v. Irwin, 551 F.3d 461, 469 (6th Cir. 2009);
              Farhat v. Jopke, 370 F.3d 580, 595 (6th Cir. 2004). These
              minimal requirements are constitutionally essential.
Thompson, 395 S.W.3d at 627 (footnote omitted) (holding that a ―tenured teacher, like
other public employees,‖ possesses such a property interest). In considering what due
process requires in this particular situation, however, we emphasize that the only issue
raised in this appeal concerns the proper allocation of the burden of proof at the Step III
appeal. Accordingly, we need not consider whether Mr. Pressley was deprived of the full
panoply of rights to which he may have been entitled; instead, our review is confined
only to the issue of whether the ALJ properly assigned the burden of proof to TDOC in
the administrative proceedings.
       As previously discussed, the Tennessee Supreme Court in Williams specifically
held that because a tenured teacher‘s interest in continued employment is protected by the
Due Process Clause of the Fourteenth Amendment, the State must bear the ultimate
burden of proof to show that the adverse employment action against the tenured teacher
was appropriate. See Williams, 604 S.W.2d at 849. Tennessee courts have come to
similar conclusions in other cases where a public employee who has a protected property
                                            21
interest in continued employment challenges his or her dismissal. For example in Case v.
Shelby County Civil Service Merit Board, 98 S.W.3d 167, (Tenn. Ct. App. 2002), this
Court held that in cases before the Shelby County Civil Service Merit Board ―the burden
of demonstrating cause is on the employer[.]‖ Id. at 175–76; see also Kirkwood v.
Shelby Cnty. Gov’t, No. W2005-00769-COA-R9-CV, 2006 WL 889184, at *4 (Tenn. Ct.
App. Apr. 6, 2006) (holding that that the burden is on the State and ―never shifts‖). Thus,
we have held that due process requires that: ―[i]n 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.‖ Kirkwood, 2006 WL 889184, at *4. Although the provisions of the
TEAM Act are certainly not synonymous with those of the Teacher Tenure Act or other
acts involving public employees, we conclude that because similar due process
protections are implicated in these situations, the ultimate burden of proof under the
TEAM Act must likewise rest on the State to show cause sufficient to sustain the
dismissal or suspension of an employee in a Step III apeal pursuant to Tennessee Code
Annotated Section 8-30-316. Our Court has previously defined the term ―cause‖ as
―some substantial shortcoming which renders continuance in office or employment in
some way detrimental to the discipline and efficiency of the service and something which
the law and sound public opinion recognize as good cause for removal.‖ Id. at 175
(quoting Knoxville Utils. Bd. v. Knoxville Civil Serv. Merit Bd., No. 03A01-9301-CH-
00008, 1993 WL 229505, at *10 (Tenn. Ct. App. June 28, 1993)). Consequently, TDOC
had the ultimate burden to show cause as defined by this Court to sustain Mr. Pressley‘s
dismissal.
        Because the TEAM Act requires a complainant employee to show a violation of a
rule, law or policy through the three-step appeal process, however, we also conclude, like
the Cooper Court, that the employee has a de minimis burden to establish a prima facie
violation prior to the triggering of the State‘s burden to show cause. In this case, Mr.
Pressley specifically alleged in his Step III appeal that there was no cause to support the
termination of his employment. As discussed throughout this case, cause was required to
terminate Mr. Pressley‘s employment pursuant to Tennessee Code Annotated Section 8-
30-316(a). Thus, Mr. Pressley clearly alleged a violation of law with regard to the
termination of his employment. While the Saunders Court indicated that allegations may
be insufficient in some cases to sustain an employee‘s de minimis burden pursuant to the
burden framework established in Cooper, see Saunders, 746 S.W.2d at 190–91, we
conclude that under the unique procedural history in this case, Mr. Pressley appropriately
met his burden, given then the board of appeals ultimately ruled that there was not
sufficient cause to support termination. Our conclusion, however, is limited to the facts
presented in this case. The ALJ, therefore, did not err when it required TDOC, rather than
Mr. Pressley, to prove that there was sufficient cause for the termination and that the
punishment was appropriate. See Case, 98 S.W.3d at 173–75 (holding that an employee
who may only be dismissed or suspended for cause has the right to challenge the severity
of the disciplinary measures imposed).
                                            22
                                                    II.
       Mr. Pressley next argues that the board of appeals‘ decision to suspend him for
fourteen days is unsupported by substantial and material evidence.6 As previously
discussed, this Court may alter or reverse an agency decision where the decision is
―[u]nsupported by evidence that is both substantial and material in the light of the entire
record.‖ Tenn. Code Ann. § 4-5-322(h)(5)(A). While this Court may consider evidence in
the record that detracts from its weight, the Court is not allowed to substitute its judgment
for that of the agency concerning the weight of the evidence. See id. at 322(h)(5)(B).
       ―The ‗substantial and material evidence‘ standard contained in [Section] 4-5-
322(h)(5) is couched in very broad language.‖ Wayne Cnty. v. Tenn. Solid Waste
Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988). What amounts to
substantial evidence is not precisely defined by the statute. In general terms, it requires
something less than a preponderance of the evidence, but more than a scintilla or
glimmer. Gluck v. Civil Serv. Comm’n, 15 S.W.3d 486, 490 (Tenn. Ct. App. 1999).
―When we are reviewing the evidentiary foundation of an administrative decision under
Tenn. Code Ann. § 4-5-322(h)(5), we are not permitted to weigh factual evidence and
substitute our own conclusions and judgment for that of the agency, even if the evidence
could support a different determination than the agency reached.‖ Ware v. Greene, 984
S.W.2d 610, 614 (Tenn. Ct. App. 1998); see also Tenn. Code Ann. § 4-5-322(h);
Humana of Tenn. v. Tenn. Health Facilities Comm’n, 551 S.W.2d 664, 667 (Tenn.
1977). An agency‘s decision may be supported by substantial and material evidence even
when the evidence could support another conclusion. Jones v. Greene, 946 S.W.2d 817,
828 (Tenn. Ct. App. 1996). The courts need only reject an agency‘s factual findings
when, considering the record as a whole, a reasonable mind would necessarily come to a
different conclusion. Jones v. Greene, 946 S.W.2d 817, 828 (Tenn. Ct. App. 1996)
(emphasis added) (citing 5 Jacob A. Stein, Administrative Law § 51.02, at 51–61 (1992)).
               Here, the board of appeals found that Mr. Pressley committed negligence in
the performance of duties pursuant to Tenn. Comp. R. & Regs. 1120-10-.03, which
provides, in relevant part:

                The following are examples of acts that may warrant
                disciplinary action. This list is not exclusive and shall not be
                construed to limit an Appointing Authority‘s discretion in
                disciplinary matters:
                                                 * * *
                         (3) Negligence in the performance of duties; . . . .

6
 Nothing in the State‘s brief suggests that, if the board of appeals applied the correct burden of proof, the
board of appeals nevertheless erred in finding Mr. Pressley guilty of only minor charges and reducing his
dismissal to a suspension.
                                                     23
Neither party directs this Court to any legal authority specifically defining ―negligence in
the performance of duties‖ pursuant to the above rule. Indeed it appears to this Court that
the current version of Tenn. Comp. R. & Regs. 1120-10-.03 was adopted in 2012 shortly
after the enactment of the TEAM ACT. Regardless of the exact definition of ―negligence
in the performance of duties[,]‖ the board of appeals specifically stated that it relied upon
Mr. Pressley‘s failure to promptly file a written report after entering a secure area in the
prison kitchen in reaching its conclusion that Mr. Pressley committed negligence. The
board of appeals thereafter concluded that a fourteen day suspension without pay was
appropriate punishment for Mr. Pressley‘s conduct.
       To support this finding and conclusion, the board of appeals made the following
findings of fact specific to this issue:
              3. On or about January 6, 2014, [Mr. Pressley] was the
              kitchen officer on 3rd shift at [the prison] and supervised four
              inmates assigned to the kitchen during 3rd shift as cooks and
              cleaners. For reasons that remain unclear on this evening,
              complainant contacted his supervisor, Randy Human, and
              notified him of a food shortage and the need to obtain food
              from the secure food storage area, and his supervisor
              approved him to do so.
              4. Surveillance camera footage of the complainant opening
              doors in the kitchen and/or food storage area is not clear as to
              whether there were tamper seals on the doors.
              5. Complainant did not find a tamper seal on the door to the
              secure storage area.
              6. No written report was ever made as to any food storage
              necessitating the entry into the secure storage area.
Based upon these findings, the board of appeals concluded:
              12. Department did carry its burden of proof that complainant
              violated Tennessee Department of Human Resources Rule
              1120-10-.03 (3), ―negligence in the performance of duties‖ by
              presenting evidence that complainant was required to make a
              written report upon entry into the secured storage area when a
              tamper seal has been broken and a written report as to any
              food s[h]or[t]age.
                                          * * *


                                             24
             The Board of Appeals determines that the appropriate
             discipline is a suspension for a period of fourteen (14)
             calendar days.
        Mr. Pressley argues that the board of appeals‘ findings of fact conflict with its
legal conclusions with regard to the necessity of filing an incident report. As shown
above, although the board of appeals found that Mr. Pressley did not find a tamper seal
on the door and none was conclusively shown in the video footage, the board of appeal
nevertheless concluded that Mr. Pressley committed negligence in failing to file ―a
written report upon entry into the secured storage area when a tamper seal has been
broken.‖ (Emphasis added). Furthermore, Mr. Pressley asserts that any conclusion that
an incident report was required regardless of whether a tamper seal had been broken is in
conflict with the plain language of the policy that he allegedly violated. According to the
Post Orders, which were introduced during the hearing before the board of appeals as a
basis for disciplinary action: ―No unauthorized person (inmate or staff) may enter the
secure storage area unless monitored by food service management. This area will be
sealed by food management at close. This seal is not to be broken without management
being notified and an incident report filed.‖ Post Order, p. 7, § N. Based upon this
language, Mr. Pressley argues that he was only required to file an incident report in the
event that a tamper seal was required to be broken to enter a secure storage area. Because
the board of appeals did not find that a tamper seal was in place at the time that Mr.
Pressley entered the secure food storage area, he contends that he was not required to file
an incident report. As such, Mr. Pressley asserts that the board of appeals‘ decision that
his failure to file an incident report constituted negligence is clearly erroneous.
       The State argues, however, that the board of appeals‘ final ruling and oral
deliberations establish that the board of appeals did not absolve Mr. Pressley from all
wrongdoing with regard to the incident. According to one board member discussing the
appropriate punishment for the above violation,
             [C]learly food was taken and we can‘t really determine where
             it went or what happened to it. And I don‘t think what
             happened that night was appropriate[.] . . . [W]hat happened
             here shouldn‘t have happened; but I think there was
             something going on within the supervisory group there that
             was allowing this to happen.
Another board member explained: ―I think my basis for feeling that some discipline
needs to be imposed really relates to the lack of written documentation and not so much
the removal of the food because that, again, remains a mystery to me.‖ Specifically with
regard to this issue, another board member stated:
             It would seem to me, looking back through some of the
             exhibits, there is a policy on what you‘re supposed to do if
             there is not a seal. It would seem to me that maybe some of
                                            25
                these questions could have been answered if perhaps there
                was an incident report. If the seal was off, we were given
                permission to go back there because there was a shortage of
                food, just some sort of documentation somewhere about what
                happened that night. It would seem like as the person in
                charge, [Mr. Pressley] would do some kind of reporting.
According to the State, these deliberations show that the board of appeal found that ―Mr.
Pressley at least, had a duty to make a written report of what happened‖ on the night of
January 6, 2014. (Emphasis added).
        Even given the deference that this Court must accord the decision by the board of
appeals, we agree with Mr. Pressley that the board of appeals‘ findings and conclusions
are contradictory and unsupported by substantial and material evidence. First, the board
of appeals‘ decision to find Mr. Pressley guilty of negligence in the performance of his
duties clearly results from their finding that he failed to file an incident report regarding
his entry into the secure food storage area and removal of food inventory on January 6,
2014. Having reviewed all of the rules that Mr. Pressley was charged with violating, the
only rules that specifically reference the filing of a written incident report with regard to
food service are the Post Orders.7 As previously discussed, however, the Post Orders
indicate that such an incident report is only required when a tamper seal is broken. See
Post Order, p. 7, § N. Furthermore, the board of appeals did not find that Mr. Pressley
broke a tamper seal when entering the secure food storage area. Indeed, the board of
appeals specifically concluded that there was insufficient evidence to support a finding
that Mr. Pressley violated the Post Order. As such, it appears inconsistent to find that
while Mr. Pressley did not violate the specific rule requiring him to file an incident
report, presumably because it was not triggered, his failure to file an incident report
nevertheless constituted negligence.
        Nothing in the State‘s brief to this Court references any specific evidence that
would support the board of appeals‘ decision that Mr. Pressley‘s committed negligence in
failing to file an incident report even though no tamper seal was broken. Pursuant to our
duty to consider the board of appeal‘s decision ―in the light of the entire record,‖ Tenn.
Code Ann. § 4-5-322(h)(5)(B), we have considered all of the testimony submitted to the
board of appeals. Relevant to this issue, Warden Sexton did testify that the proper
procedure in entering into the secure food storage area was to file an incident report to
allow proper records to be kept regarding food utilized during the third shift. When asked
upon what rules or documents he relied to reach this conclusion, Warden Sexton pointed
only to the Post Orders, which by their plain language only require such a report when a
tamper seal is broken. Furthermore, Captain Murray testified that:


7
 The Post Orders also reference reporting requirements with regard to the use of force. The use of force is
not at issue in this case.
                                                    26
              If the seals had not been broken and there was a deficit in
              food, there would‘ve probably been no report made. . . . [A]t
              that particular time, we didn‘t have a procedure in there other
              than the shift report [requiring a correctional officer to file an
              incident report in that situation]. And probably, if we debated
              that today, I would agree that the shift report that we have
              now or they have still, I believe should reflect that. Should
              reflect that the items that they did get, even though the seals
              were not in place, should be accounted for. But that particular
              time, it was not. The only instructions that shift supervisors
              had at that particular time that would give accountability for
              seals being broken.
Thus, it appears from the whole of the record before the board of appeals that, at the time
the incident took place, the rules and standards applicable to correctional officers only
required an incident report when a tamper seal was broken to gain access to the secure
food storage area. Because the board did not find that a tamper seal was broken, we
cannot conclude that there is substantial and material evidence in the record to support
the board of appeals‘ conclusion that Mr. Pressley committed negligence in failing to file
an incident report on the night of January 6, 2014. Because this conclusion was the only
basis for discipline found by the board of appeals, we must conclude that the board erred
in imposing any discipline on Mr. Pressley.
                                             III.
        Finally, Mr. Pressley argues that the board of appeals abused its discretion in
declining to award him attorney‘s fees and costs. The TEAM Act specifically provides
that ―the board of appeals may award attorney‘s fees and costs to a successfully appealing
employee.‖ Tenn. Code Ann. § 8-30-318(k). Here, the board of appeals voted two-to-one
to deny Mr. Pressley‘s request for attorney‘s fees on the basis that he was found guilty of
some misconduct.
        To support his argument that he was a ―successfully appealing employee‖ under
the TEAM Act, Mr. Pressley relies on the Tennessee Supreme Court‘s Opinion in Daron
v. Department of Correction, 44 S.W.3d 478 (Tenn. 2001). In Daron, the Tennessee
Supreme Court considered whether the employee was properly considered a
―successfully appealing employee‖ under the now-repealed Tennessee civil service
statute, Tennessee Code Annotated Section 8-30-328(f), repealed by 2012 Pub.Acts, c.
800, § 41, eff. Oct. 1, 2012. Id. at 480. The employee, a correction officer, was dismissed
from his employment with TDOC for misconduct. The civil service commission upheld
some instances of misconduct, but reduced the dismissal to a ten-day suspension. The
civil service commission nevertheless denied the employee‘s request for attorney‘s fees.

                                             27
Id. at 478–79. The chancery court reversed, but the Court of Appeals reinstated the
decision of the civil service commission. Id.
        Relying on ―an analogous federal provision for guidance,‖ the Tennessee Supreme
Court defined ―successfully appealing employee‖ as an employee who ―succeeds on a
‗significant claim‘ which affords the employee a substantial measure of the relief
sought.‖ Id. at 480–81 (citing Tex. State Teachers Ass’n v. Garland Indep. School Dist.,
489 U.S. 782, 791, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989)). Although the Court
acknowledged that the employee was found guilty of several acts of misconduct, ―he
obtained a reduction in discipline from termination to a ten-day suspension.‖ Daron, 44
S.W.3d at 481 (citing Texas State Teachers Ass’n, 489 U.S. at 791, 109 S.Ct. at 1493).
Ultimately, the Daron Court concluded that ―[b]ecause the [employee] appealed the
[T]DOC‘s decision to terminate his employment and the discipline was reduced to a ten-
day suspension, [the employee] is a ‗successfully appealing employee‘‖ as required for
an award of attorney‘s fees. Daron, 44 S.W.3d at 481.
        Because the TEAM Act likewise bases an award of attorney‘s fees on a
determination of whether the complainant is a ―successfully appealing employee[,]‖
Tenn. Code Ann. § 8-30-318(k), Mr. Pressley argues that this Court should follow the
definition of that phrase set forth in Daron. We agree with Mr. Pressley that by choosing
to include language allowing attorney‘s fees to a ―successfully appealing employee‖
under the TEAM Act, the replacement to the former civil service system, the Tennessee
General Assembly expressed its intent to allow attorney‘s fees under the same
circumstances as had previously been allowed under the now-repealed civil service
system. Indeed, in Hamby v. McDaniel, 559 S.W.2d 774 (Tenn. 1977), the Tennessee
Supreme Court explained:
              The legislature is presumed to know the interpretation which
              courts make of its enactments; the fact that the legislature has
              not expressed disapproval of a judicial construction of a
              statute is persuasive evidence of legislative adoption of the
              judicial construction, especially where the law is amended in
              other particulars, or where the statute is reenacted without
              change in the part construed.
Id. at 776; see also Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d
393, 400 (Tenn. 2013) (―[C]ourts must presume that our General Assembly was aware of
its prior enactments and knew the state of the law at the time the legislation was passed.‖)
(citing Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). Had the Tennessee General
Assembly wanted to change the standard under which a public employee would have
been entitled to attorney‘s fees after an improper dismissal, it certainly could have chosen
different language to govern the award of attorney‘s fees under the TEAM Act. Because
the General Assembly instead chose to include the same standard under the TEAM Act as
had previously been utilized in the civil service statute, we can only presume that the

                                            28
same judicial interpretation of that standard must apply. Thus, we conclude that the
definition of ―successfully appealing employee‖ set forth in Daron is equally applicable
under the TEAM Act.
       Following the definition of ―successfully appealing employee‖ set forth in Daron,
Mr. Pressley contends that he is entitled to attorney‘s fees under the TEAM Act because
he was successful in reducing the termination of his employment only to a fourteen day
suspension, much like the employee in Daron. Indeed, the State concedes in its brief that
under the rule set forth in Daron, Mr. Pressley must be considered a ―successfully
appealing employee.‖ The State argues, however, that because of the facts in this case,
the board of appeal properly exercised its discretion to decline attorney‘s fees ―where it
has found an employee guilty of wrongdoing.‖
       Having reviewed the board of appeals‘ deliberations, despite the State‘s
protestations, it does appear that the board of appeals declined to award Mr. Pressley any
attorney‘s fees on the basis that he was found guilty of at least one allegation of
misconduct. Indeed, no other basis for the denial of attorney‘s fees was discussed by the
board of appeals. Under these circumstances, and given our determination that the board
of appeals lacked substantial and material evidence to support the punishment it imposed,
we reverse the board of appeals‘ denial of attorney‘s fees and remand to the board for the
consideration of a reasonable amount of attorney‘s fees to Mr. Pressley.


                                       Conclusion
       The judgment of the Chancery Court of Davidson County is reversed. The board
of appeals determination that Mr. Pressley committed negligence in the performance of
his duties is also reversed. This cause is remanded to the chancery court with instructions
to remand to the board of appeals for the determination of reasonable attorney‘s fees to
be awarded to Mr. Pressley under Tennessee Code Annotated Section 8-30-318(k). Costs
of this appeal are taxed to Appellee Tennessee Department of Correction, for which
execution may issue, if necessary.



                                                 _________________________________
                                                 J. STEVEN STAFFORD, JUDGE




                                            29
