                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                ______________________________________________      FILED
CHARLES STEPHEN SANFORD,
                                                                     August 19, 1998
      Petitioner-Appellee,
                                                                Cecil W. Crowson
                                                              Appellate Court Clerk
Vs.                                         C.A. No. 01A01-9710-CH-00578

TENNESSEE DEPARTMENT OF
ENVIRONMENT & CONSERVATION
and TENNESSEE CIVIL SERVICE
COMMISSION,

      Respondents-Appellants.
____________________________________________________________________________

             FROM THE DAVIDSON COUNTY CHANCERY COURT
           THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR


                                   James G. Stranch III
                                     Bryan E. Pieper
                  Branstetter, Kilgore, Stranch & Jennings of Nashville
                                       For Appellee

                   John Knox Walkup, Attorney General and Reporter
                    Eugenia B. Whitesell, Assistant Attorney General
                                    For Appellants



                             REVERSED AND REMANDED

                                       Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE

      This is an appeal from the trial court’s reversal of a final order of the Tennessee Civil

Service Commission (the Commission).             The Commission’s final order upheld

Petitioner/Appellee Charles Sanford’s termination of employment with the Department of
Environment and Conservation (TDEC) based on insubordination. The trial court reversed the

Commissioner’s order, finding that it was not supported by substantial and material evidence.

        The pertinent facts are as follows: Charles Sanford was employed by the Department of

Environment and Conservation, Division of Construction Grants and Loans (CGL Division) in

1987. Sanford joined a section of the CGL Division, called the facilities assessment section, in

March 1992 and remained there until his discharge in January of 1993. Among its functions, the

facility assessment section bi-annually completes a wastewater facility needs survey (Needs

Survey) that it submits to the EPA. Sanford’s primary job responsibilities during 1992 included

assisting with the Needs Survey. He was assigned to work with the other staff and his

supervisors to collect information from municipalities in Tennessee regarding wastewater needs

and then to submit the information on a computer data base in accordance with the EPA’s

guidelines.

        Sanford received an oral warning on April 16, 1992 for insubordination related to his

frequent unannounced and unscheduled visits to TDEC Commissioner Luna’s office. Prior to

1992 Sanford received two oral warnings for similar conduct, including incidents of abusive

language toward his supervisor and a fellow employee. The April 16, 1992 oral warning was

followed with a letter dated April 21, 1992, which advised Sanford that he must discontinue the

insubordinate behavior or further disciplinary action, up to and including dismissal, would result.

        On November 25, 1992, Sanford received a written warning for his continued

unprofessional behavior and his habit of spending time on extraneous issues. The written

warning relayed an incident where Sanford disobeyed the directions of his supervisor and was

“rude, loud, and unprofessional” when questioned on the matter. The written warning also

documents that Sanford continued to pursue personal projects at work that were not directly

related to his job.

        The next incident that promoted punishment occurred on December 17, 1992. Sanford’s

supervisor, Karen Grubbs (Grubbs), specifically asked Sanford to review data on municipalities

for which he was responsible. Sanford refused to do the work stating that he was “working on

a proposal for a Joint Resolution for Congress.” Although he was specifically told not to pursue

that work on state time, he continued to do so. Sanford told his supervisor that she was making

him sick and requested annual leave for the rest of the day. The request was denied and Sanford


                                                2
asked for sick leave. The sick leave was approved on the condition that he would go home.

Sanford did not go home but, instead, remained in the office. Grubbs reported to Ron Graham

(Graham), director of CGL Division, that Sanford was in the office being very disruptive and

“wild eyed.” Graham had to request that Sanford leave the office.

       As a result of the December 17 incident, combined with numerous formal and informal

oral and written warnings regarding his insubordination, Grubbs recommended to Jim Poff

(Poff), deputy director of the GCL division, and Graham that Sanford be suspended for 3 days

for insubordination. A due process hearing was held on December 21, 1992. At the hearing,

Sanford did not make any responses to the charges and the suspension was upheld.

       Immediately after the hearing, Graham met with Grubbs, Sanford and Poff regarding the

Needs Survey. They discussed the importance of completing as much work as possible that day

in order to meet the upcoming deadline. After the meeting, Sanford requested to take off the rest

of the afternoon. Grubbs denied the leave, but told Sanford he could leave after he finished his

assignment specified at the meeting. Despite her response, Sanford handed the receptionist a

leave slip and told her that he was leaving for the rest of the afternoon. Graham attempted to

stop Sanford at the elevator and again explained to him the importance of completing the project

that day. Graham reminded Sanford of the due process hearing held earlier that day and told

Sanford that if he left without approved leave it would result in his termination. Sanford’s only

response was “Get real,” as he got on the elevator and left. Sanford returned later in the day, but

he did not explain his previous behavior and refused to tell his supervisors what time he had

returned.

       As a result of this incident, Grubbs and Graham recommended by memoranda dated

December 22, 1992, termination of Sanford’s employment based on insubordination. By letter

dated December 28, 1992, David Gregory, Assistant Commissioner of TDEC, notified Sanford

of the recommendation for termination and notified Sanford that his due process hearing would

be held on December 30, 1992. The letter stated in pertinent part:

               Attached for your review are your supervisor’s and director’s
               reports of an incident which occurred Monday, December 22,
               [sic] 1992, following your informal hearing for insubordination.
               The reports describe your response to Karen Grubbs’ refusal to
               grant annual leave after she had discussed the importance of
               completion of a portion of the Needs Assessment project.



                                                3
               Before the suspension had been decided after the due process
               hearing for insubordination this morning you again exhibited
               disregard for direct instructions of your supervisor, Karen
               Grubbs, and the Division director, Ron Graham, by
               indicating that you were on leave.

               Because of your continued disregard of reasonable work
               assignments, you are again charged with insubordination and
               have been recommended for termination.

The supervisors’ memoranda recommending termination were attached to the letter. Grubbs’s

memo contained all the issues relating to the recurring disruptive and insubordinate behavior that

kept escalating until his dismissal. She explained how his activities had affected his job

performance and specifically noted:

               His credibility with the EPA-Region IV and HQ has been
               severely impaired      by his constant refusal to follow guidelines
               and procedures established for the Needs Survey. EPA HQ
               personnel have requested that Steve not communicate with HQ
               staff as TN Needs Coordinator, which presents a hindrance in
               effectively compiling an accurate estimate of TN Needs. The
               constant determination to represent information “his way” has
               caused much of the information to be not included in the EPA
               report. Over the past year, Steve has been directly insubordinate
               to me by pursuing activities he was told        not to pursue, by not
               performing assignments as instructed, by not keeping me
               informed of is whereabouts and activities -- even when asked
               directly. He has also told me I am not his supervisor on several
               occasions.

       Sanford’s employment was terminated by letter dated January 19, 1993. Sanford filed

a grievance regarding his dismissal and subsequently had a Level IV grievance hearing. By

letter dated February 17, 1993, Commissioner Luna upheld the dismissal. Sanford appealed the

decision to the Commission, and a hearing was held June 28 - 30, 1994 and June 25 - 26, 1995

before an Administrative Law Judge. On August 8, 1995, the Administrative Law Judge entered

an Initial Order upholding Sanford’s termination on the ground of insubordination. Sanford

appealed to the Civil Service Commission (CSC), and the Commission adopted the ALJ’s

findings. (A copy of the initial order is attached as an addendum to this opinion.)

       Sanford filed a petition for judicial review in the trial court. The trial court reversed the

CSC order, finding that the order lacked specificity as to the charge of insubordination and was

not supported by substantial and material evidence. The trial court further found that TDEC had

failed to comply with T.C.A. § 8-30-331 (b)(1) (1993), which entitles an employee to detailed

notice of the charges against the employee.



                                                4
       The State appeals the judgment of the trial court and the issues for our review are: (1)

whether the trial court erred in ruling that the Civil Service Commission’s final order was not

supported by substantial and material evidence, and (2) whether the trial court erred in ruling that

the Department of Environment and Conservation failed to comply with T.C.A. § 8-30-331

(b)(1), as to notice of the charges against him.

        As to the first issue, the State argues that the administrative record is replete with

substantial and material evidence that termination was appropriate based on the incident that

occurred on December 21, 1992 and Sanford’s behavior prior to this incident.           The trial

court’s review of the Commission’s decision is governed by T.C.A. § 4-5-322 (h) (Supp. 1997),

which sets forth the standard of review on appeal of administrative proceedings as follows:

                (h) The court may affirm the decision of the agency or remand the
                case for further proceedings. The court may reverse or modify
                the decision if the rights of the petitioner have been prejudiced
                because the administrative findings, inferences, conclusions or
                decisions are:
                        (1) In violation of constitutional or statutory
                        provisions;
                        (2) In excess of the statutory authority of the
                        agency;
                        (3) Made upon unlawful procedure;
                        (4) Arbitrary or capricious or characterized by
                        abuse of discretion or clearly unwarranted
                        exercise of discretion; or
                        (5) Unsupported by evidence which is both
                        substantial and material in the light of the entire
                        record.

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

        In Tennessee Dep’t of Human Servs. v. Tennessee Civil Servs. Comm’n, No. 01A01-

9504-CH-00143, 1995 WL 581086 (Tenn.App. Oct. 5, 1995), this Court said:

                         The scope of review in this Court is the same as in the
                trial court: to review findings of fact of the administrative agency
                upon a standard of substantial and material evidence. Humana
                of Tenn. v. Tenn. Health Facilities Comm’n, 551 S.W.2d 664
                (Tenn.1997); DePriest v. Puett, 669 S.W.2d 669 (Tenn.App.
                1984). Thus, substantial and material evidence is required to
                sustain the action of an administrative tribunal. Pace v. Garbage
                Disposal Dist., 54 Tenn.App. 263, 267, 390 S.W.2d 461, 463
                (1965). What amounts to “substantial and material” evidence as
                contained in T.C.A. § 4-5-322 (h) is not clearly defined in the
                statute. Generally, the standard requires “something less than a
                preponderance of the evidence.” Wayne County v. Tennessee
                Solid Waste Disposal Control Bd., 756 S.W. 2d 274, 280


                                                   5
               (Tenn.App.1988); Consolo v. Federal Maritime Comm’n, 383
               U.S. 607, 620, 86 S.Ct. 1018, 1026 16 L.Ed.2d 131 (1966), “but
               more than a scintilla or glimmer.” Wayne County, 756 S.W.2d
               at 280; Pace, 54 Tenn.App. at 267, 390 S.W.2d at 463.

Tennessee Dep’t of Human Servs., 1995 WL 581086, at *3.

       The mandate to the Court is quite explicit that 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. T.C.A. § 4-5-322(h), Pace, 54 Tenn.

App. at 266, 390 S.W.2d at 463.

        The evidence before the tribunal must be such relevant evidence as a reasonable mind

might accept as adequate to support a rational conclusion and such as to furnish a reasonably

sound basis for the action under consideration. Pace, 54 Tenn.App. at 267, 390 S.W.2d at 463.

        Under the narrow scope of review set out in T.C.A. § 4-5-322 (b), we find that the trial

court erred in reversing the Commission’s decision to uphold               Sanford’s termination.

Specifically, we find that the Commission was not in error in considering prior incidents of

insubordination and disciplinary matters that involved Sanford. Supervisors have the discretion

on how to discipline an employee. This Court held in Tennessee Dep’t. of Human Services, that

dismissal is appropriate when a lesser disciplinary action will not end the behavioral problem.

Id.,1995 WL 581086, at *4. In the instant case, Sanford had not effectively been performing his

job and was disturbing the CGL Division, and previous attempts at discipline had failed. The

record before the ALJ and the trial court clearly showed that throughout his employment,

Sanford had consistently been warned against insubordinate behavior.

        We cannot agree with the lower court’s conclusion that the CSC failed to include specific

findings concerning the charge of insubordination for his conduct on December 21, 1992. After

Sanford attended the meeting with Graham, Poff and Grubbs to discuss the importance of

completing the work quickly, he asked for annual leave for the day. Although, his supervisor,

Grubbs, denied the leave, Sanford left work anyway. Grubbs notified Graham of Sanford’s

intentions to leave work. Graham made a second attempt to persuade Sanford to stay as Sanford

waited for the elevator. Graham again explained the importance of completing the assignment

that day. He further told Sanford that if he left it would lead to his termination. Sanford refused

to talk to Graham and told the receptionist to tell Graham that Graham was bothering him while



                                                 6
he was on his own time. His only words to Graham were “Get real” as he got on the elevator to

leave. Despite Sanford’s contention that he merely went to lunch and returned, he did not inform

anyone of this. In fact, he turned in a leave slip for the entire day to the receptionist and told her

that he was “gone for the day.” Even when Sanford returned to the office later that day, he

refused to tell his supervisor when he had returned and offered no explanation for his earlier

behavior. Further, Sanford was overheard that afternoon to say that he was working on his own

time. Thus, we hold that since previous disciplinary actions had not satisfactorily remedied

Sanford’s propensity for insubordinate conduct, the ALJ’s judgment demonstrates why

termination was appropriate based on the December 21, 1992 incident.

        As to the second issue, the State avers that the December 28, 1992 letter and the attached

memoranda provided Sanford with proper notice under T.C.A. § 8-30-331 (b)(1) that he was

being terminated for his continuous insubordination and that the December 21, 1992 incident

was the “straw that broke the camel’s back.”

        T.C.A . § 8-30-331 (b)(1) provides:

                8-30-331. Minimum due process. -

                               *              *              *
                (b) Minimum due process consists of the following:
                (1) The employee shall be notified of the charges.          such
                notification should be in writing and shall detail times, places,
                and other pertinent facts concerning the charges.

Basic due process requires “notice reasonably calculated under all the circumstances, to apprise

interested parties” of the claims of the opposing parties. Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 94 L.Ed. 865 (1950). The purpose of due

process requirements is to notify the individual in advance in order to allow adequate preparation

and reduce surprise. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554,

1562-63, 56 L.E.2d 30 (1978).

        The trial court’s memorandum refers to the department’s letter terminating Sanford’s

employment. This letter is dated January 19, 1993 and refers to the numerous incidents

involving Sanford’s insubordination and specifically refers to the informal hearing held on

December 30, 1992 before Assistant Commissioner David Gregory. It is important to note that

the December 30, 1992 hearing was held pursuant to a notice given in the letter dated December

28, 1992, which included as attachments reports from Sanford’s supervisors and directors


                                                  7
relating the specific incident of December 22, 1992. The letter explicitly informed Sanford that

his supervisors had recommended him for termination based on insubordination. The letter also

attached memoranda written by Grubbs and Graham that described the incident on December

21, 1992, when Sanford had been insubordinate and noted a previous pattern of insubordination.

       The letter and the memoranda show that Sanford’s continued insubordination was

considered in the decision to terminate him. The December 28, 1992 letter noted Sanford’s

“continued disregard of reasonable work assignments” and Grubbs’s memorandum stated that

Sanford had been insubordinate over the past year. Sanford should have been aware that an

explanation for his insubordinate behavior throughout his employment would be necessary.

Sanford was provided adequate pre-hearing notice of the facts which would be presented against

him and of the policies which his conduct might be deemed to violate. Thus, we find that the

State satisfied the constitutional due process requirements and the specific statutory and

regulatory notice requirements.

       The judgment of the trial court reversing the Commission’s final order is reversed, and

the case is remanded for such further proceedings as may be necessary. Costs of appeal are

assessed against the appellee.

                                                     _________________________________
                                                     W. FRANK CRAWFORD,
                                                     PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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