                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               MARCH 22, 2011 Session

           JOHN HUGHES, JR. v. THE CITY OF MEMPHIS, ET AL.

              Direct Appeal from the Chancery Court for Shelby County
                  No. CH-09-1158-1     Walter L. Evans, Chancellor


                 No. W2010-01550-COA-R3-CV - Filed May 11, 2011


An MPD patrolman appealed his “separation” from employment to the Civil Service
Commission. The Commission found the separation was “administrative” in nature, and,
therefore, that it lacked jurisdiction to consider the appeal. The chancery court denied the
patrolman’s petition to reverse and/or modify the Commission’s decision, and we affirm.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

Edgar Davison, Memphis, Tennessee, for the appellant, John Hughes, Jr.

Herman Morris, Jr., City Attorney, Zayid A. Saleem, Assistant City Attorney, Memphis,
Tennessee, for the appellee, City of Memphis
                                                 OPINION

                                I.   F ACTS & P ROCEDURAL H ISTORY

        John Hughes, Jr. (“Mr. Hughes”), a Memphis Police Department (“MPD”) patrolman,
suffered an on-the-job injury in late November 2005. Mr. Hughes was cleared to return to
“light duty” on October 16, 2006, and to “full duty” on January 11, 2007. After his injury,
Mr. Hughes did not return to work until January 11, 2007, when he reported for “desk duty”;
however, he left after only two hours, complaining of illness. He never returned to work
after that date.

       On January 11, 2008, MPD Deputy Chief of Administration Services, Harry J. Tusant,
sent Mr. Hughes a letter stating that he would be “separated” from his employment effective
January 12, 2008 due to his absence from work in excess of twelve months. On January 22,
2008, Mr. Hughes’ attorney wrote to Chief Tusant “to inform [him] that . . . Mr. Hughes[]
ha[d] made many attempts to return to work.” Then, on March 5, his attorney wrote the
City’s Deputy Director of Human Resources requesting that Mr. Hughes’ termination be
reviewed.1 On November 10, 2008, Mr. Hughes filed a notice of appeal to the Civil Service
Commission (the “Commission”).

       A hearing was held before the Commission on March 20, 2009. The Commission
concluded that Mr. Hughes’ separation was “administrative” in nature, and therefore, that it
lacked jurisdiction to consider his appeal. Furthermore, it found that even if his separation
had been “disciplinary” in nature, that it likewise would lack jurisdiction over the matter
because Mr. Hughes’ request for appeal was untimely. Accordingly, the Commission
dismissed Mr. Hughes’ appeal.

       Mr. Hughes then petitioned the Shelby County Chancery Court for judicial review.
Following a hearing on June 16, 2010, the chancery court denied Mr. Hughes’ request to
reverse and/or modify the Commission’s decision, finding “no basis” to do so. Mr. Hughes
timely appealed to this Court.


                                        II.    I SSUES P RESENTED

       Mr. Hughes presents the following issues for review:

1.     Whether the trial court erred by ruling the City’s action was not disciplinary in nature,

       1
           The letter states “Please accept this letter as an appeal from the termination of Mr. Hughes.”

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       and therefore, that Mr. Hughes had no right to appeal; and

2.     Whether the trial court erred by holding that Mr. Hughes’ appeal to the Civil Service
       Commission was untimely.

For the following reasons, we affirm the trial court’s denial of Mr. Hughes’ petition to
reverse and/or modify the Commission’s decision.


                               III.   S TANDARD OF R EVIEW

        This appeal arises from the trial court’s judgment rendered pursuant to the statutory
writ of certiorari as provided in title 27, chapter 9 of the Tennessee Code. See Tenn. Code
Ann. §§ 27–9–101 to –114 (2000). This statutory writ is available following a proceeding
conducted before a civil service board that affects a civil servant’s employment status. City
of Memphis v. Civil Service Comm’n, 238 S.W.3d 238, 242 (Tenn. Ct. App. 2007) (citing
Tenn. Code Ann. § 27-9-114; Tidwell v. City of Memphis, 193 S.W.3d 555, 559 (Tenn.
2006)). “The application of these provisions requires compliance with the standards of the
Uniform Administrative Procedures Act (UAPA), including the judicial standards of review
set forth in Tennessee Code Section 4–5–322.” Id. (citing Tenn. Code Ann. §
27–9–114(b)(1) (2000)). “Under the UAPA, administrative agency decisions are subject to
chancery court review that is conducted without a jury and is limited to the administrative
record.” Id. (citing Tenn. Code Ann. § 4–5–322(g) (2005)) (providing, however, that review
of procedural errors is not limited to the administrative record). The scope of judicial review
is set forth in subsection (h):

       (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



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

       (B) In determining the substantiality of evidence, the court shall take into
       account whatever 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).

        After determining that the agency has employed the proper legal principles, this Court
“must then consider the disputed factual findings and address whether the agency had a
reasonably sound basis for making those findings.” City of Memphis, 238 S.W.3d at 243
(citing McEwen v. Tenn. Dept. of Safety, 173 S.W.3d 815, 820 (Tenn. Ct. App. 2005)). In
reviewing the agency’s findings of fact, this Court applies the substantial and material
evidence standard. Id. (citing Bobbitt v. Shell, 115 S.W.3d 506, 509–10 (Tenn. Ct. App.
2003)). Substantial and material evidence is defined as “‘such relevant evidence as a
reasonable mind might accept to support a rational conclusion’ and to furnish a reasonably
sound basis for the decision under consideration.” Id. (quoting City of Memphis v. Civil
Serv. Comm'n, 216 S.W.3d 311, 316 (Tenn. 2007)); see also Dickson v. City of Memphis
Civil Serv. Comm'n, 194 S.W.3d 457, 464 (Tenn. Ct. App. 2005); Pruitt v. City of Memphis,
No. W2004-01771-COA-R3-CV, 2005 WL 2043542, at *7 (Tenn. Ct. App. Aug.24, 2005);
Bobbitt, 115 S.W.3d at 510.

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

       Tennessee Code Annotated Section 4-5-322(h)(4) permits a reviewing court to modify
or reverse an administrative decision if it is “[a]rbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion.” Id. (citing Tenn. Code
Ann. § 4-5-322(h)(4) (2005)). “A decision unsupported by substantial and material evidence

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is arbitrary and capricious.” Id. (citing City of Memphis v. Civil Serv. Comm'n, 216 S.W.3d
311, 315 (Tenn. 2007)). “A decision is arbitrary or capricious if it ‘is not based on any
course of reasoning or exercise of judgment, or . . . disregards the facts or circumstances of
the case without some basis that would lead a reasonable person to reach the same
conclusion.’” Id. (quoting Jackson Mobilphone Co. v. Tenn. Public Serv. Comm’n, 876
S.W.2d 106, 110-11 (Tenn. Ct. App. 1993)).


                                        IV.   D ISCUSSION

      As we stated above, Mr. Hughes was separated from his employment effective
January 12, 2008, pursuant to a letter from Chief Tusant. Before the Commission, Chief
Tusant testified that Mr. Hughes’ separation was based upon the City of Memphis Personnel
Manual Policy, Section 46-03:

       No employee may be off a City job longer than 12 consecutive months from
       the date the employee is unable to work due to disability from illness and/or
       injury.

and Section 42-06:

              No employee shall be off of a City job for reasons of disability due to
       disability from illness and/or injury for longer than 12 consecutive months. At
       the conclusion of the 12 month period of time, the employee shall be separated
       from the City’s payroll.2


      Pursuant to the City of Memphis Charter, the Commission’s jurisdiction is limited to
reviewing disciplinary actions:

       The Civil Service Commission shall have the power and it shall be its duty to
       conduct hearings to review disciplinary actions, limited to suspensions,
       dismissals, or demotions of any employees not exempted from the provision
       of this article.

       ....


       2
         The January 11, 2008 letter states in part: “As of January 12, 2008, your employment will be
separated from the City of Memphis Police Division. You have been absent from work in excess of 12
months and are being separated based upon City of Memphis Policy.”

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        Any employee holding a position not exempted from the provisions of this
        article and not in his initial probationary period, who has been suspended in
        excess of ten (10) days, terminated, or demoted, may appeal to the commission
        within ten (10) calendar days after notification in writing of such action.

(emphasis added). As we stated above, the Commission concluded that Mr. Hughes’
separation was administrative, rather than disciplinary, in nature, and therefore, that it lacked
jurisdiction to consider his appeal. Before this Court, Mr. Hughes argues that his separation
from employment was disciplinary in nature, and thus, that the Commission’s dismissal was
arbitrary.

        Mr. Hughes’ primary argument regarding the nature of the City’s action is as follows:
“Hughes had no choice in the matter and therefore the removal was disciplinary in nature.”
He also contends that “[t]he record shows that Mr. Hughes was released to return to work on
or about October 16, 2006, however the City did not allow Mr. Hughes to come back despite
his attempts to do so.”

        At the Commission hearing, MPD Lieutenant Mark Winters testified that an employee
wishing to return to duty after an injury must contact either the Health and Safety Office or
his immediate supervisor stating his desire to so return, and he must also present the requisite
paperwork. Both Lieutenant Winters and Chief Tusant testified that neither Mr. Hughes nor
his attorney contacted them regarding a willingness to return to work prior to the January 11,
2008 separation letter. Mr. Hughes conceded that no one from the MPD told him he could
not return to work, that he knew he did not need the MPD’s permission to return to work, and
that he failed to contact either Lieutenant Winters or Chief Tusant regarding a return to work.
However, he testified that it was his “understanding [that his] attorney was contacting the
City to put [him] back to work.” Mr. Hughes’ attorney, Kathleen Caldwell, testified that she
had attempted to contact Lieutenant Winters since November 2007, but she was unable to
provide any documentation of alleged contact attempts prior to Mr. Hughes’ separation.3

       Before the Commission, Chief Tusant explained the difference between “separation”
and “termination”: separation is an abandonment of employment, whereas “termination
involves a disciplinary action or a process that an employee has violated a directive or some
City policy[.]” Lieutenant Winters further explained that separation is “a neutral thing[,]”
where “you’re no longer able to perform your job as a . . . police officer for whatever
reason[,]” while “termination is . . . negative.”



        3
          The record includes two 2007 pre-separation letters from Ms. Caldwell to the City; however, both
relate to Mr. Hughes’ medical needs and OJI coverage.

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        We are not persuaded by Mr. Hughes’ argument that his lack “of choice in the matter”
rendered the City’s action “disciplinary.” Instead, we find substantial and material evidence
to support the City’s argument, and the Commission’s conclusion, that Mr. Hughes’
separation was not a disciplinary response to his extended absence from work, but that it was
instead an administrative action taken in accordance with the personnel manual. In so far as
it relates to the nature of the City’s action, we find that the record does not support Mr.
Hughes’ contention that the City refused to allow him to return to work, or that he attempted
to do so prior to separation. In sum, we find the Commission’s decision was not arbitrary
and capricious as it was based upon substantial and material evidence, and, therefore, that
the chancery court did not err in upholding its decision. The dismissal of Mr. Hughes’ appeal
is affirmed.


                                    V.    C ONCLUSION

      For the aforementioned reasons, we affirm the decision of the chancery court. All
remaining issues are deemed pretermitted. Costs of this appeal are taxed to Appellant, John
Hughes, Jr., and his surety, for which execution may issue if necessary.

                                                   _________________________________
                                                   ALAN E. HIGHERS, P.J., W.S.




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