        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE

                                                       FILED
MARY BOMAR,               )                            February 11, 2000
                          )
    Petitioner/Appellee,  )                           Cecil Crowson, Jr.
                          )                        Appellate Court Clerk
                                           Appeal No.
VS.                       )                M1999-00951-COA-R3-CV
                          )
TENNESSEE DEPARTMENT OF )                  Davidson Chancery
MENTAL HEALTH AND MENTAL )                 No. 98-1525-I
RETARDATION,              )
                          )
    Respondent/Appellant. )


APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
               AT NASHVILLE, TENNESSEE

       THE HONORABLE IRVIN H. KILCREASE, CHANCELLOR



RONALD A. RAYSON
111 S. Central Street
Knoxville, Tennessee 37901
      Attorney for Petitioner/Appellee

PAUL G. SUMMERS
Attorney General and Reporter

WILLIAM J. MARETT, JR.
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243-0490
      Attorney for Respondent/Appellant


                      REVERSED AND REMANDED


                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.


                             OPINION


            This is an appeal by the Commissioner of the Department of Mental

Health and Mental Retardation from the judgment of the trial court which
reversed the dismissal of an employee of the Lakeshore Mental Health Institute.

We find that the Agency decision was supported by substantial and material

evidence. Therefore, we reverse the judgment of the trial court.



                                        I.



             The appellee was a psychiatric technician employed by Lakeshore

Mental Health Institute. On December 3, 1995, while working in the Children

and Youth Program, the appellee observed Jonathan, a seven year old patient,

running in and out of his bedroom and into the hallway. Although the appellee

told Jonathan to stay in his area, he continued to slide around in the hallway.

Appellee then told him to take a “time out.” While taking his “time out” on the

floor, Jonathan began “scooting around all over the floor.” The appellee again

asked him to keep quiet, but he ignored her request and continued to slide around

on the floor. The appellee then approached Jonathan, placed him on his stomach

on the floor, placed his hands behind his back, joined his hands at the small of

his back, crossed his legs at the ankles and folded his legs back over his buttocks

with his heels touching his buttocks. During this restraint, the appellee was

leaning over Jonathan with her knee in the small of his back. The evidence

indicates that Jonathan told the appellee he was having trouble breathing and that

he was going to vomit. Such restraint continued until Mary Ogle, the RN

supervisor, approached Jonathan and the appellee. The appellee then relaxed her

hold and Jonathan returned to his room.



             That same night, the appellee stated that “the Indians group would

be a little bit better if we could keep Robert and Jonathan a little bit more under

control” and “thank God I am not working tomorrow and I won’t have to put up

with this.” The appellee admitted in her interview with an investigator for

Lakeshore that other children were possibly within earshot when the former



                                       -2-
statement was made. Appellee further admitted that the former statement was

inappropriate and could be interpreted as an unjustified derogatory remark.



             On December 20, 1995, after a discussion with the program director

at Lakeshore regarding the events of December 3, 1995, the appellee received a

letter of recommendation for termination. As grounds for the dismissal, the letter

cited Lakeshore Mental Health Institute Policy No. 2.44 Patient Abuse, 0940-2-

3-.03 Resident or Patient Abuse by Employees which states in relevant part:

             Employees shall not:

             (a) Knowingly threaten to touch, attempt to touch or
             actually touch a resident or patient in any manner
             which a reasonable person would recognize as likely
             to be harmful or painful or to cause mental anguish, or

             . . .

             (c) Knowingly engage in any conduct toward a
             resident or patient which a reasonable person would
             recognize as brutal or cruel under the circumstances .

             . . .

             If an employee engages in conduct prohibited by this
             rule, the employee is guilty of conduct against the
             good of the service and the employee shall be
             dismissed. Such a violation is most likely to be
             determined to be gross misconduct.


             As a result of the recommendation, the appellee’s employment with

Lakeshore Mental Health Institute was terminated. Such termination was upheld

in an initial order of an administrative law judge and by the Civil Service

Commission. The appellee appealed to the Davidson County Chancery Court

under Tenn. Code Ann. § 4-5-322. The Chancellor reversed the Commissioner’s

holding that the decision did not support a finding that the appellee used

excessive force or made derogatory statements in violation of Lakeshore policy.

The Commissioner of the Department of Mental Health and Mental Retardation

now appeals to this Court.



                                       II.

                                       -3-
            Tenn. Code Ann. § 4-5-322(h) states that upon judicial review of an

agency’s findings

            (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.


            “Substantial and material evidence” has been defined as “‘such

relevant evidence as a reasonable mind might accept to support a rational

conclusion and such as to furnish a reasonably sound basis for the action under

consideration.’” Clay County Manor, Inc. v. State of Tennessee, 849 S.W.2d

755, 759 (Tenn. 1993) (quoting Southern Railway Co. v. State Board of

Equalization, 682 S.W.2d 196, 199 (Tenn. 1984)).



            The review of the trial court’s decision by this Court is essentially

a determination of whether or not the trial court properly applied the foregoing

standard of review. James R. Bryant v. Tennessee State Board of Accountancy,

No. 01A01-9303-CH-00088, Davidson County (Tenn. Ct. App. filed September

1, 1993 at Nashville) (citing Metropolitan Gov’t. of Nashville v. Shacklett, 554

S.W.2d 601, 604 (Tenn. 1977)).




                                      -4-
             The appellant first contends that the trial court erred in finding that

there was no substantial and material evidence to support a finding of patient

abuse by the appellee in the use of the restraint hold.         The Civil Service

Commission adopted the findings of the initial order of the administrative law

judge which found that the preponderance of the evidence demonstrated that the

appellee restrained a patient in an abusive manner and termination was an

appropriate discipline for such conduct.



             The evidence established that the appellee restrained a seven year

old patient after he refused to follow her instructions and continued to make

noise and slide around in the hallway. The appellee’s restraint of the child

consisted of placing him on his stomach on the floor, placing his hands behind

his back, joining the hands at the small of the back, crossing the legs at the

ankles, folding the legs back over the buttocks with heels touching the buttocks,

and transferring some of her weight onto the child. The child complained that

he could not breathe, that he was going to vomit, and that appellee was hurting

him. The child was also screaming and crying. The restraint lasted from two or

three minutes to fifteen minutes.    In light of the foregoing, we find that there

was substantial and material evidence from which the Commission could find

that the appellee knowingly touched a patient in a manner which a reasonable

person would recognize as likely to be harmful or painful. We note that there are

exceptions to this rule set out in the Lakeshore policy at 2.44, 0940-2-3-.02

Justified Employee Conduct. However, there is no substantial and material

evidence in the record to support a finding that the appellee’s conduct was

reasonably necessary to protect the patient or employee from harm or that the

conduct was authorized by the patient’s treatment plan.             Therefore, the

exceptions are inapplicable to this case.



             The appellee contends that her actions did not constitute patient

abuse as set out in Lakeshore policy because she did not act knowingly.

                                        -5-
Furthermore, the appellee contends that she did not restrain the patient in a

manner that a reasonable person would recognize as likely to be harmful or

painful. In support of these arguments, the appellee points to testimony that

indicated that this same type of restraint was used by other personnel on the same

patient and other patients and that she did not receive training with regard to

specific restraints for child patients. However, we find that the mere fact that

appellee may have witnessed this hold being used by other employees does not

mean that she did not act knowingly with regard to her own actions and the

likeliness that those actions could cause pain or harm.



             In addition, although the appellee did not receive training

specifically dealing with the restraint of children, the record establishes that the

appellee did receive training regarding restraint holds in general. The restraint

the appellee used on Jonathan was not a restraint taught during this training. We

decline to hold that these facts would support a finding that the appellee could

not act knowingly or that these facts would lead a reasonable person to believe

that the restraint used by the appellee on Jonathan was not likely to be harmful

or painful. The appellee contends that she restrained the child to keep him from

harming himself. The evidence established that the child was sliding around on

the floor. There is no evidence that the child was in danger of harming himself.

Therefore, the trial court erred in reversing the Commission’s decision on this

issue.




                                        III.



             The appellant next contends that the trial court erred in not finding

substantial and material evidence to support a finding of patient mistreatment by

way of the appellee’s use of derogatory language. As set out earlier, the

                                        -6-
evidence established that the appellee stated to at least one other staff member

that “the Indians group would be a little bit better if we could keep Robert and

Jonathan a little bit more under control” and “thank God I am not working

tomorrow and I won’t have to put up with this.” In her signed statement to the

Lakeshore investigator, the appellee admitted that the former remark was

inappropriate and could be interpreted as an unjustified derogatory comment.

The appellee further admitted that this statement possibly was made within the

earshot of other children.



              Lakeshore Mental Health Institute Policy and Procedure 2.44, 0940-

2-3-.04 Other Kinds of Mistreatment of Residents or Patients by Employees

states that

              Employees shall not:

              . . .

              (f) Make unjustified derogatory comments about a
              resident or patient to or in the presence of the resident
              or patient or another person . . .

              If an employee engages in conduct prohibited by this
              rule, the employee is guilty of conduct against the
              good of the service and the employee is subject to
              discipline, including suspension or dismissal.
              Mistreatment of a resident or patient may also be
              determined to be gross misconduct.


              The rule does not require, as the trial court suggests, that a patient

actually hear such comments. The rule only requires that the statements be made

in the presence of a patient or another person. There was substantial and material

evidence presented that the appellee made these remarks about the two patients

in the presence of at least one staff member and possibly within earshot of other

patients. Therefore, the trial court erred in reversing the agency’s decision that

the appellee had violated this rule.



                                        IV.



                                        -7-
             The last issue in this appeal is whether termination of the appellee’s

employment was an appropriate form of discipline for the violations that

occurred. The agency found that the appellee had engaged in gross misconduct

or conduct unbecoming a state officer and that her termination was justified.



             We note that the Lakeshore Mental Health Institute Policy and

Procedure states that if an employee commits patient abuse as defined by 2.44,

0940-2-3-.03, “the employee is guilty of conduct against the good of the service

and the employee shall be dismissed.” As there was substantial and material

evidence to support a finding that the appellee committed patient abuse, the

agency had the authority to terminate appellee’s employment on such basis.



             The Lakeshore policy further states that if an employee is found

guilty of patient mistreatment as set out in 2.44, 0940-2-3-.04, that employee is

“subject to discipline, including suspension or dismissal.” Therefore, the agency

had the authority to terminate the appellee upon a finding of patient

mistreatment. Whether the derogatory remarks alone would have resulted in the

appellee’s dismissal is a matter we do not have to decide, since she was also

found guilty of the more serious charge of patient abuse.



             The judgment of the trial court is reversed, and the action of the

Agency is affirmed. Remand this case to the Chancery Court for Davidson

County for any further proceedings necessary. Tax the costs on appeal to the

appellee, Mary Bomar.




                                               BEN H. CANTRELL,
                                               PRESIDING JUDGE, M.S.


CONCUR:


                                       -8-
WILLIAM C. KOCH, JR., JUDGE




WILLIAM B. CAIN, JUDGE




                              -9-
