                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 27, 2014 Session

   ROBERT KOSCINSKI v. HAMILTON COUNTY TENNESSEE, ET AL.

                Appeal from the Chancery Court for Hamilton County
                  No. 130041     Jeffrey M. Atherton, Chancellor


             No. E2014-00097-COA-R3-CV-FILED-OCTOBER 31, 2014


This appeal arises from the termination of Robert Koscinski (“Koscinski”) from his
employment as a corrections officer with the Hamilton County Sheriff’s Office. Koscinski
had been found to be unfit for duty based upon a psychological evaluation. Koscinski
appealed his termination to the Hamilton County Sheriff’s Civil Service Board (“the Board”).
The Board upheld Koscinski’s termination. Koscinski filed an application for writ of
certiorari in the Chancery Court for Hamilton County (“the Trial Court”). After hearing
arguments, the Trial Court entered an order denying Koscinski’s writ of certiorari. Koscinski
timely appealed to this Court. We find and hold that the Board applied the correct legal
standard, and that the Board’s factual findings were supported by substantial and material
evidence. We affirm the Trial Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and J OHN W. M CC LARTY, J., joined.

Stevie N. Phillips, Chattanooga, Tennessee, for the appellant, Robert Koscinski.

R. Dee Hobbs, Chattanooga, Tennessee, for the appellees, Hamilton County, Tennessee, and,
the Hamilton County Sheriff’s Office.
                                               OPINION

                                              Background

              Koscinski was a police officer with the New York City Police Department for
over 20 years. Koscinski retired from the NYPD, and, in 2004, moved to Hamilton County,
Tennessee. Koscinski was hired by the Hamilton County Sheriff’s Office in 2004 where he
worked as a corrections officer.

              Koscinski’s tenure as a corrections officer was satisfactory for a period.
Koscinski, however, developed misgivings about some of the practices at the jail and his
fellow officers, and, to an extent, these misgivings were mutual. Koscinski was moved from
one supervisor to another in an attempt to alleviate his concerns. Another issue emerged.
Koscinski apparently was of the view that Masons1 dominated the jail and were blocking his
career advancement.

                In March 2012, the incident occurred that would spark the course of events
setting this case in motion. Koscinski was attempting to search an inmate. The inmate
resisted the search, and Koscinski shoved the inmate against a wall in a bid to restrain him.
Another officer, Carl Young, intervened and pulled Koscinski away from the inmate. In the
process, the inmate struck Koscinski. Koscinski was disturbed deeply by this act of his
fellow officer, believing it had lowered his credibility in the eyes of the jail inmates. A few
days after the incident, Koscinski spoke to Young about what had transpired. Koscinski told
Young that, had this occurred in New York, Young would have been physically harmed for
intervening against a fellow officer the way he did.

              Koscinski was suspended without pay and sent to licensed counselor Ben
Miller (“Miller”). Miller found Koscinski cooperative and engaged him in a number of
follow-up visits. Miller did not recommend that Koscinski stop working. Nevertheless,
Deputy Chief of Corrections Ron Parson recommended that Koscinski undergo a fitness for
duty evaluation.

              In April 2012, Dr. Donald L. Brookshire (“Dr. Brookshire”), a psychologist,
submitted to the Sheriff a fitness for duty evaluation regarding Koscinski. Dr. Brookshire’s
evaluation specifically found Koscinski then psychologically unfit to perform his duties. The
evaluation noted that Koscinski suffered mild to moderate depression as well as a minimal
level of anxiety. The evaluation also noted a clinical profile of Koscinski consistent with
serious psychological problems associated with an overcontrolled person who uses denial and

       1
           Masons, or Freemasons, are members of a historic organization.

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repression to deal with conflicts.2 In June 2012, a due process hearing was held in the
Koscinski matter. Dr. Brookshire testified. The following exchange occurred:

        Mr. Tidwell: If you can say, is there some way to estimate how long treating
        the depression would take? I assume that would involve psychotherapy and
        some sort of medication. But is there some way to approximate how long that
        might take to deal with that?

        Dr. Brookshire: I think that’s right. I think it would take medication and
        psychotherapy. Psychotherapy, especially because he doesn’t have any real
        good support system right now, a good therapist would become that support
        for him and kind of fill that void, or he could, hopefully.

        Medication often can, within four to six weeks, if the person is going to be
        responsive to the medication, and everybody is not, but many people have
        marked improvement in depression in four to six weeks.

        Mr. Tidwell: Can you say whether or not alleviating the depression or
        modifying it would make [Koscinski] competent to go back to work as a jailer
        at this point or would you have to reevaluate him?

        Dr. Brookshire: I can’t make a prediction like that. I don’t know what his
        response to treatment, what the treatment would be. I don’t know.

Based upon Dr. Brookshire’s evaluation, Sheriff Jim Hammond terminated Koscinski at the
end of the due process hearing.

               Koscinski appealed the Sheriff’s decision to the Board. The Board conducted
its own hearing in November 2012. The Board heard sworn testimony and viewed a host of
exhibits. During his testimony, Sheriff Hammond answered in the affirmative when asked
if his decision to terminate Koscinski was based on Dr. Brookshire’s evaluation:

               It was. When I heard the facts on this case, after the psychological was
        presented at the Loudermill hearing, my decision was based on nothing more
        than I agreed that we had a professional doctor who was making
        recommendations. I at that point had to evaluate the safety and security of, of
        not only my correctional officers, but the Hamilton County Sheriff’s Office in


       2
         Deeming it unnecessary to the disposition of this appeal, we decline to quote directly from the
evaluation, which contains detailed information about Koscinski’s personal life and condition.

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       general, and that’s the basis upon which I made my finding.

When asked why it was reasonable to pursue corrective action regarding Koscinski in the
first place, Sheriff Hammond testified: “I think the reasonableness of these - - of this
evaluation was based on one thing, that there was an alarm by the totality of everything,
including these memos, that said we better take a special look at this case.” At the
conclusion of the Board’s hearing, the Board voted to sustain the Sheriff’s termination of
Koscinski.

              In January 2013, Koscinski filed an application for writ of certiorari in the Trial
Court. The Trial Court heard oral arguments from the parties. In December 2013, the Trial
Court entered its memorandum opinion and order. In its order, the Trial Court found and
held that the Board applied the correct legal standard under its operating manual and that
substantial and material evidence supported the Board’s decision to sustain the termination.
Koscinski timely appealed to this Court.

                                          Discussion

              Although not stated exactly as such, Koscinski raises two issues on appeal: 1)
whether the Board applied the wrong legal standards; and, 2) whether the Board’s factual
findings were supported by substantial and material evidence. Koscinski also requests his
attorney’s fees on appeal.

              Tenn. Code Ann. § 4-5-322 governs this appeal from the decision of a civil
service board. This statute provides as relevant:

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

       (h) The court may affirm the decision of the agency or remand the case for
       further proceedings. The court may reverse or modify the decision if the rights
       of the petitioner have been prejudiced because the administrative findings,
       inferences, conclusions or decisions are:

       (1) In violation of constitutional or statutory provisions;

       (2) In excess of the statutory authority of the agency;

       (3) Made upon unlawful procedure;

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      (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
      unwarranted exercise of discretion; or

      (5)(A) Unsupported by evidence that is both substantial and material in the
      light of the entire record.

             (B) In determining the substantiality of evidence, the court shall take
             into account whatever in the record fairly detracts from its weight, but
             the court shall not substitute its judgment for that of the agency as to
             the weight of the evidence on questions of fact.

      (i) No agency decision pursuant to a hearing in a contested case shall be
      reversed, remanded or modified by the reviewing court unless for errors that
      affect the merits of such decision.

      (j) The reviewing court shall reduce its findings of fact and conclusions of law
      to writing and make them parts of the record.

Tenn. Code Ann. § 4-5-322 (g) - (j) (2011).

              This Court previously has discussed the standard of review in civil service
board cases such as this as follows:

             In cases where a commission's jurisdiction, authority, and procedures
      are not at issue, Tenn. Code Ann. § 4-5-322(h)(4), (5) require the courts to
      review the commission's decision using a three-step analysis. First, the court
      must determine whether the commission has identified the appropriate legal
      principles applicable to the case. Second, the court must carefully examine the
      commission's factual findings to determine whether they are supported by
      substantial and material evidence. Third, the court must examine how the
      commission applied the law to the facts. Armstrong v. Metro. Nashville Hosp.
      Auth., No. M2004-01361-COA-R3-CV, 2006 WL 1547863, at *2 (Tenn. Ct.
      App. June 6, 2006) (No Tenn. R. App. P. 11 application filed); McEwen v.
      Tenn. Dep't of Safety, 173 S.W.3d 815, 820 (Tenn. Ct. App. 2005).

              While Tenn. Code Ann. § 4-5-322(h) does not explicitly define what
      “substantial and material evidence” is, the courts have interpreted it as
      requiring something less than a preponderance of the evidence but more than
      a scintilla or glimmer. Dickson v. City of Memphis Civil Serv. Comm'n, 194
      S.W.3d 457, 464 (Tenn. Ct. App. 2005); Gluck v. Civil Serv. Comm'n, 15

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S.W.3d at 490; Wayne County v. Tenn. Solid Waste Disposal Control Bd., 756
S.W.2d 274, 280 (Tenn. Ct. App. 1988). Substantial and material evidence is
the amount of relevant evidence that a reasonable person would require to
reach a rational conclusion. Thus, substantial and material evidence furnishes
a reasonably sound basis for the commission's decision. Clay County Manor,
Inc. v. Dep't of Health & Env't, 849 S.W.2d 755, 759 (Tenn. 1993); Southern
Ry. Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984);
Bobbitt v. Shell, 115 S.W.3d 506, 510 (Tenn. Ct. App. 2003).

       Because the application of the law to the facts is a highly judgmental
process involving mixed questions of law and fact, the court's review of a
commission's decision is limited and deferential to the commission.
Armstrong v. Metro. Nashville Hosp. Auth., 2006 WL 1547863, at *2. The
courts may neither reweigh the evidence nor substitute their judgment for the
commission's, even if the evidence could support a conclusion different from
the one reached by the commission. Tenn. Code Ann. § 4-5-322(h)(5)(B); City
of Memphis v. Civil Serv. Comm'n, 216 S.W.3d at 316; McClellan v. Bd. of
Regents, 921 S.W.2d 684, 693 (Tenn. 1996); Eatherly Constr. Co. v. Tenn.
Dep't of Labor & Workforce Dev., 232 S.W.3d 731, 735 (Tenn. Ct. App.
2006). Rather, the courts must determine whether a reasonable person could
appropriately have reached the same conclusion reached by the commission,
consistent with a proper application of the controlling legal principles.
McEwen v. Tenn. Dep't of Safety, 173 S.W.3d at 820.

       Commission decisions that are not supported by substantial and material
evidence are necessarily arbitrary and capricious, as are decisions with
adequate evidentiary support that are based on a clear error in judgment. City
of Memphis v. Civil Serv. Comm'n, 216 S.W.3d at 316. In its broadest sense,
the arbitrary and capricious standard in Tenn. Code Ann. § 4-5-322(h)(4)

       requires the court to determine whether the administrative
       agency has made a clear error in judgment. An arbitrary or
       capricious decision is one that is not based on any course of
       reasoning or exercise of judgment, or one that disregards the
       facts or circumstances of the case without some basis that would
       lead a reasonable person to reach the same conclusion.

City of Memphis v. Civil Serv. Comm'n, 216 S.W.3d at 316 (quoting Jackson
Mobilphone Co. v. Tenn. Pub. Serv. Comm'n, 876 S.W.2d 106, 110-11 (Tenn.
Ct. App. 1993) (internal citations omitted)).

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Miller v. Civil Serv. Comm’n of Metro. Gov’t of Nashville and Davidson Cnty., 271 S.W.3d
659, 664-65 (Tenn. Ct. App. 2008) (footnote omitted).

               We first address whether the Board applied the wrong legal standards.
Koscinski argues on appeal that certain comments by Board members suggest that they felt
they lacked the authority to overrule the Sheriff. For instance, Chairman Pippin at one point
stated: “Well, our question is do we have the right to overrule the sheriff on, on an
employment situation like that where it is actually a ruling that’s come down saying that this
individual is unfit.” Koscinski also points to the County Attorney’s asking the Board to take
judicial notice of Tenn. Code Ann. § 41-4-144 (a)(9), which provides that corrections
officers must be free from impairments set forth in the Diagnostic and Statistical Manual of
Mental Disorders. Tenn. Code Ann. § 41-4-144(b)(3), however, exempts corrections
officers hired before July 1, 2006.3 Koscinski began working for Hamilton County in 2004.
According to Koscinski, wrongly introducing Tenn. Code Ann. § 41-4-144 to the Board’s
attention served to further the Board’s misunderstanding of its available options.

                With respect to the proper standard for the Board, other statements from the
Board members reflect that they did, in fact, apply the proper standard. Board member
Benson stated that “the only reasons to overturn the sheriff’s decision would be for the
political reasons . . . personal . . . or if the sheriff has acted arbitrarily in the interpretation of
cause.” Chairman Pippin stated toward the end of the Board hearing that “. . . we would
need to be convinced that there was a political reason, a personal reason, or a reasonable,
reasonable doubt that this man was sent and evaluated for reasons other than his ability to
function in the sheriff’s department.” The Board members also extensively questioned
witnesses and took an active part in the proceedings. There is no hint that the Board regarded
itself as a mere rubberstamp. On the contrary, the record shows clearly that the Board closely
considered the details of the case before finally arriving at its decision. Any initial questions
or concerns about authority were resolved correctly by the time the Board decided. The
Board properly applied the standard outlined in its operating manual4 , and, as pertinent to this
case, considered whether the Sheriff acted arbitrarily in terminating Koscinski’s employment.


        3
          Tenn. Code Ann. § 41-4-144(b)(3) (2014) provides: “This section shall not apply to any jail
administrator, jailer, corrections officer or guard hired by any municipality, county, or political subdivision
of this state prior to July 1, 2006.” We note that Tenn. Code Ann. § 41-4-144(a)(9), requiring the freedom
of impairment for corrections officers, was modified in 2013. However, neither version applies to Koscinski,
as he was hired on as a corrections officer in 2004.
        4
         The transcripts of the Board hearing reflect that the standard (reviewing a decision for political,
personal, or arbitrary reasons) came from the Board’s operating manual, and there appears to be no
disagreement among the parties that this was the relevant standard. The Trial Court also found this standard
to be applicable. Naturally, the parties on appeal disagree as to the results of applying that standard.

                                                     -7-
               In his brief on appeal, Koscinski cites to the case of Hoback v. City of
Chattanooga, No. E2011-00484-COA-R3-CV, 2012 WL 2974762 (Tenn. Ct. App. July 20,
2012), no appl. perm. appeal filed. In Hoback, a case involving the termination of a police
officer found unfit for duty, we affirmed the trial court’s holding that the City Council
applied the wrong legal standard and remanded the case with instructions. The City Council
had applied Tenn. Code Ann. § 38-8-108, apparently at odds with an agreement reached
between Tennessee and the United States regarding conflicts between Tennessee law and the
Americans with Disabilities Act. Id. at *5. We find Hoback inapposite to this case as the
Board did not apply the above mentioned disputed legal principles. Rather, the Board acted
properly according to its operating manual, and, as pertinent, determined whether the Sheriff
acted arbitrarily in terminating Koscinski. More fundamentally, it does not appear from the
record that the Board was under the impression that it was a foregone conclusion to terminate
Koscinski based on any rigid medical criteria, but rather considered the particular
circumstances of the case and reached its decision.

               Related to this issue, we also address the introduction to the Board of Tenn.
Code Ann. § 41-4-144. Koscinski is exempt from the requirements of this statute as he was
hired prior to July 1, 2006. Therefore, neither the Board nor Trial Court should have relied
upon this statute in relation to Koscinski. While the County Attorney read the statute aloud
to the Board, it does not appear from the record that the Board relied on this statute in any
way in reaching its decision. The totality of the record reflects that the Board determined
that, based primarily on Dr. Brookshire’s evaluation and attendant circumstances, the Sheriff
had not acted arbitrarily in firing Koscinski. The Trial Court did cite Tenn. Code Ann. § 41-
4-144 in its memorandum opinion and order. We, however, do not rely upon Tenn. Code
Ann. § 41-4-144 in affirming the Trial Court as to this issue, because that statute does not
apply to Koscinski. We conclude that the Board applied the correct legal standards.

               We next address whether the Board’s factual findings were supported by
substantial and material evidence as found by the Trial Court. Koscinski asserts that his
termination was based solely on Dr. Brookshire’s evaluation and, as such, failed to rise to the
level of substantial and material evidence necessary to support termination. According to
Koscinski, Dr. Brookshire’s testimony at the due process hearing was that Koscinski would
be ready to work in four to six weeks. Koscinski argues that he should have been given time
to rectify his problems, with some sort of accommodation worked out such that he could
remain employed with the Sheriff’s Office.

               As discussed above, Dr. Brookshire’s testimony was not exactly as
characterized by Koscinski but rather was that some patients may respond to medication for
depression in four to six weeks. Dr. Brookshire did not testify that Koscinski would be fit
for duty in four to six weeks. On the contrary, Dr. Brookshire testified that he could make

                                              -8-
no such prediction. Dr. Brookshire’s evaluation of Koscinski also contained findings
separate and apart from depression and anxiety. The evaluation specifically found Koscinski
then to be unfit for duty and found certain personality traits of concern in Koscinski such as
an overcontrolled personality with difficulty in handling stressful situations. Taken in its
entirety, the evidence presented to the Board rises to the level of substantial and material
evidence sufficient to sustain Koscinski’s termination. Further, we find, as did the Trial
Court, that the Board’s decision was not based on a clear error in judgment.

               We emphasize that our Opinion should not be construed to mean that a finding
of anxiety or depression somehow serves as ipso facto grounds for termination of corrections
officers or comparable officials. In this case, there is an uncontroverted psychological
evaluation that specifically found the officer unfit for duty. There was, and is, no guarantee
or even proof of a likelihood that medication would alleviate Koscinski’s depression or
anxiety and render him fit for duty. Perhaps most significantly, the evaluation references
certain personality traits of concern that could be exacerbated by depression but that are
separate and distinct from depression. Finally, we cannot ignore the attendant circumstances
leading to the evaluation, referred to in the evaluation itself, and all of which were presented
as evidence before the Board. Given the limited standard of review we must apply, and, in
light of the specific factual circumstances of this case culminating in an evaluation finding
Koscinski unfit for duty, we conclude that substantial and material evidence supported the
factual findings of the Board, and we affirm the judgment of the Trial Court.

              As a final matter, we decline to award attorney’s fees to any party in this
appeal.

                                         Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Robert Koscinski, and his surety, if any.


                                                    _________________________________
                                                    D. MICHAEL SWINEY, JUDGE




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