                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   April 15, 2010 Session

                  BETTS NIXON v. CITY OF MURFREESBORO

               Appeal from the Chancery Court for Rutherford County
                No. 08-1435CV     Robert E. Corlew, III, Chancellor


                   No. M2009-01347-COA-R3-CV - Filed July 9, 2010


City employee brought suit to challenge her dismissal for violation of the city’s drug and
alcohol policy. The trial court affirmed the decision of the city’s disciplinary review board.
The employee argues that the decision of the disciplinary review board should be reviewed
de novo, that the city is estopped by its actions from relying on the blood alcohol test results
and from terminating her employment, that she was denied due process by the actions of the
city manager and the disciplinary review board, that the city abused its discretion, and that
the city’s decision is not supported by substantial and material evidence. We have
concluded, as did the trial court, that the decision of the disciplinary review board is properly
reviewable under the standards set forth in the Uniform Administrative Procedures Act.
Under those standards, we affirm the trial court’s decision.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Van French, Murfreesboro, Tennessee, for the appellant, Betts Nixon.

James L. Weatherly, Jr., Nashville, Tennessee, for the appellee, City of Murfreesboro.

                                          OPINION

                         F ACTUAL AND P ROCEDURAL B ACKGROUND

       Betts Nixon worked for the City of Murfreesboro for 23 years and by all accounts was
a dedicated and competent employee. Ms. Nixon developed the city’s buildings and codes
department and served as its director for many years.
       The events that precipitated this lawsuit occurred on the morning of November 16,
2007. After receiving a report from an assistant city attorney that Ms. Nixon appeared to be
under the influence of an intoxicant, the city personnel director met with Ms. Nixon, who
consented to drug and alcohol testing. A screening breath test showed a blood alcohol level
of 0.133; a confirming breath test twenty minutes later showed a blood alcohol level of
0.131. Ms. Nixon then requested a blood test, which was administered about an hour after
the original screening breath test. Based upon the breath test results, Roger Haley, City
Manager, placed Ms. Nixon on administrative leave.

       Ms. Nixon’s attorney sent a letter to Mr. Haley on November 30, 2007, along with the
blood test results, which showed a blood alcohol level of 0.14.1 After receiving these results,
Mr. Haley sent a letter to Ms. Nixon informing her that his proposed disciplinary action was
termination of her employment, subject to her right to a due process hearing. On December
4, 2007, Ms. Nixon requested a due process hearing.

        The due process hearing was held before Mr. Haley on December 17, 2007. Ms.
Nixon and the city were both represented by counsel. The city put on testimony from David
Ives, the assistant city attorney who reported his suspicion that Ms. Nixon had been drinking;
Sherry Carpenter, city personnel director; Leah Cathey, administrator at Concentra Medical
Center, the facility contracted to do alcohol and drug testing for the city; and Sandra Johnson,
the medical assistant who administered the tests to Ms. Nixon. Ms. Nixon presented
testimony from Roy Nixon, her husband; Terra Wielgus-Green, an administrative assistant
in the building and codes department; Donna Stem, Ms. Nixon’s secretary; Gary Whitaker,
an assistant to Ms. Nixon in the building and codes department; Monty Kapavik, a codes
inspector; and Richard Boone, a codes inspector. Ms. Nixon herself testified concerning her
alcohol consumption on the night of November 15 to 16, 2007. She acknowledged that she
drank a 3-ounce vodka cocktail at around 5 p.m. on November 15, two large glasses of red
wine with dinner, and a Bailey’s cocktail at about 2:30 a.m. on November 16. Ms. Nixon
denied having any other alcoholic drinks between 2:30 a.m. and the time of the testing, which
began at 10:54 a.m. Ms. Nixon further presented the testimony of Dr. Michael Helton, her
primary care physician, to support her position that she did not metabolize alcohol normally
and that medications she was taking may have interfered with her ability to metabolize
alcohol during the time period in question. In response to Ms. Nixon’s proof, the city
presented the testimony of Susan McGannon, city attorney; Joseph Aydelott, city planning
director; and Dr. Howard Taylor, a toxicologist.




        1
         According to testimony before the disciplinary review board, these blood test results are consistent
with the breath test results.

                                                    -2-
        At Ms. Nixon’s request, Mr. Haley postponed his decision concerning her case to
allow her to submit additional evidence. Ms. Nixon subsequently submitted to Mr. Haley a
hair spray sample, which she claimed explained the smell of alcohol detected by Ms.
Carpenter and Ms. McGannon; an article to support the theories about which Dr. Helton had
testified; and the results of a blood test performed at Ms. Nixon’s request on November 30,
2007. Ms. Nixon declined to take an alcohol elimination test proposed by Dr. Taylor.

      In a letter dated January 16, 2008, Mr. Haley set forth findings of fact and concluded
that Ms. Nixon had violated the city’s alcohol policy. He notified Ms. Nixon that she was
terminated as a city employee effective that day. In accordance with the city charter, Ms.
Nixon exercised her right to appeal her termination to the city’s disciplinary review board
(“DRB”).

                                Disciplinary Review Board

       The hearing began on April 16, 2008, before seven members of the DRB and Jim
Duncan, Hearing Officer. The city’s first witness was David Ives, assistant city attorney,
who testified that he and Ms. Nixon were scheduled to attend a hearing in court on the
morning of November 16, 2007, and that Ms. Nixon was to be the city’s chief witness. When
he met with Ms. Nixon that morning prior to the hearing, Mr. Ives observed that Ms. Nixon’s
eyes were watery, her speech was slightly slurred, and that she exhibited “hesitancy, a
deliberateness in making responses.” He also noted that her physical movements were
deliberate and slow. Mr. Ives further testified about what he perceived to be Ms. Nixon’s
fumbling, awkward behavior when asked about a file. Although he had some misgivings
about Ms. Nixon’s ability to appear as a witness, Mr. Ives elected to proceed to the
courthouse for the hearing.

       As it turned out, the hearing was continued because the judge recused himself, and
Mr. Ives and Ms. Nixon returned to their city offices. Upon arriving back at his office at
around 10:00 a.m., Mr. Ives went to talk to the city attorney, Susan McGannon, about what
had happened in court and his concerns about Ms. Nixon’s unusual behavior. He told Ms.
McGannon that he thought Ms. Nixon had been drinking that morning. Ms. McGannon
called in the personnel director, Sherry Carpenter, and Mr. Ives explained what he had
observed to her. At that point, Ms. Nixon was summoned to Ms. McGannon’s office and
informed about Mr. Ives’s concerns. Mr. Ives then returned to his office and made a written
statement concerning his observations of Ms. Nixon that morning.

        The next witness for the city was Sherry Carpenter, the personnel director, who
testified about the city’s policies and procedures with respect to alcohol and drug use and
misuse and about her contact with Ms. Nixon on the day in question. After Ms. McGannon

                                            -3-
summoned Ms. Nixon to her office, Ms. Carpenter informed Ms. Nixon of Mr. Ives’s belief
that she was under the influence of drugs or alcohol. Ms. Nixon responded that she had not
been drinking but had been taking pain medication for pain in her jaw. As to her own
observations, Ms. Carpenter testified that Ms. Nixon’s eyes were “moist, somewhat glassy”
and that “[s]he was not as responsive to me as I have found Betts to be in the past.” Ms.
Carpenter also noticed that Ms. Nixon had a slight slur, “almost like a cottonmouth effect.”
Ms. Carpenter further stated that, when she leaned down to give Ms. Nixon the testing
consent forms for her to sign, she smelled “alcohol about her person.” It was decided that
Ms. McGannon would take Ms. Nixon to the testing facility. Ms. Carpenter stated that the
smell of the hair spray provided by Ms. Nixon was not the smell she had noted on Ms. Nixon
on the morning at issue.

       Susan McGannon, the city attorney, testified about the events of November 16, 2007,
including the report made to her by Mr. Ives concerning Ms. Nixon’s behavior and
appearance that morning and her meeting with Mr. Ives, Ms. Carpenter, and then Ms. Nixon.
When asked about her impressions of Ms. Nixon’s appearance when she came into Ms.
McGannon’s office, Ms. McGannon stated that she noticed Ms. Nixon’s eyes looked
“atypical,” “a little watery, glassy, popeyed.” She further observed that Ms. Nixon “was
speaking very slowly and nonreactively.”

      Ms. McGannon testified that she transported Ms. Nixon to the testing facility. After
Ms. Nixon tested positive for alcohol, she expressed to Ms. McGannon that she did not
understand the results because she had not had anything to drink for more than four hours.2
Ms. Nixon stated that she had Bailey’s at 3:00 a.m. Ms. McGannon sat down with Ms.
Nixon and discussed the disciplinary procedures. Ms. Nixon requested a blood alcohol test,
which was not part of the city’s testing protocol. When she moved next to Ms. Nixon to
answer a question about the city’s procedures, Ms. McGannon smelled alcohol on Ms.
Nixon. She testified that the hair spray she was asked to smell at the hearing was not the
same smell she detected on Ms. Nixon that day.

        Leah Cathey, the Concentra administrator on November 16, 2007, testified about the
testing procedures and the results of Ms. Nixon’s breath tests. She stated that the results of
the drug test administered to Ms. Nixon were negative for the five drugs tested. Ms. Cathey
was called to the front desk at Concentra when Ms. Nixon requested a blood test. She
testified that this was her first interaction with Ms. Nixon. Ms. Cathey testified that she
smelled alcohol on Ms. Nixon’s breath and that Ms. Nixon “seemed nervous, dry mouth.”



       2
         The city’s drug policy prohibited an employee from using alcohol “for four (4) hours before
reporting to duty or while on call for duty.”

                                                -4-
      Sandra Johnson, the Concentra employee who administered the breath tests to Ms.
Nixon, testified about her observations that morning. Ms. Johnson stated that Ms. Nixon
“smelled of alcohol.”

        Joseph Aydelott, the city planning director, testified as the next witness for the city.
He described several planning commission or city council meetings when he thought he
smelled alcohol on Ms. Nixon. Of greatest concern to Mr. Aydelott was a planning
commission meeting in May 2006 at which two items involving Ms. Nixon were discussed.
The meeting lasted late into the evening. At some point, Ms. Nixon advised Mr. Aydelott
that she had reached an agreement with the company involved in one of the agenda items,
a signage dispute. When she talked to Mr. Aydelott about the agreement, he noticed an odor
of alcohol and thought “she’s a little bit impaired.” He thought that “[h]er eyes weren’t quite
right.” When Ms. Nixon’s item came before the commission and she made her presentation,
Mr. Aydelott “could tell that she was not in her ordinary, sober condition.” He observed that
Ms. Nixon’s voice was wavering and “her eyes were not right.” The next day, Mr. Aydelott
talked to Mr. Ives about his observations. A few days later, Mr. Aydelott informed Mr.
Haley of his concerns.

       At this point in the hearing, the hearing officer was informed by the members of the
DRB that they wished to invoke a section of the DRB’s rules of procedure by which, in cases
involving complex legal issues or likely to involve more than five hours of testimony, the
DRB could appoint the hearing officer to hear and decide the case. Neither party raised any
objection to this process.

       The hearing continued on June 12, 2008, with the cross-examination of Mr. Aydelott.
The city next put on the city manager, Mr. Haley, as a witness, and he described his history
with Ms. Nixon and his decision to terminate her employment with the city after the due
process hearing.

        Ms. Nixon then began presenting her proof in the case. Terra Green, an
administrative support specialist for the city who worked closely with Ms. Nixon, testified
that she was with Ms. Nixon for a substantial amount of time on November 16, 2007. She
was involved in the preparations for going to court that morning and went to the courthouse
with Ms. Nixon. Ms. Green did not observe anything to suggest that Ms. Nixon was under
the influence of alcohol or impaired. She did not smell alcohol.

       Bonnie Stem, Ms. Nixon’s secretary, testified that she had worked for Ms. Nixon for
14 years and had never seen any indication that she had any alcohol problem. She testified
about her interactions with Ms. Nixon on the morning of November 16, 2007. Ms. Stem did



                                              -5-
not notice anything unusual about Ms. Nixon’s appearance or behavior and did not detect any
odor of alcohol.

       Richard Boone, a codes inspector, testified about his interactions with Ms. Nixon on
November 16, 2007. Mr. Boone did not notice anything unusual about Ms. Nixon’s behavior
or appearance that morning and did not smell alcohol. That morning, Ms. Nixon told Mr.
Boone that she was not feeling well and had taken a prescription medication due to pain in
her jaw.

        Dr. Thomas Helton, Ms. Nixon’s primary care physician, testified that she gave him
the following account of her drinking on the night prior to the morning of November 16,
2007: “a three-ounce glass of vodka, eight-ounce glass of . . . Mott’s, six-ounce glass of
wine, and a–four ounces of Bailey’s.” He opined that, with the amount of alcohol Ms. Nixon
reported drinking, the blood alcohol levels shown by the tests on the morning of November
16, 2007 were not consistent with a normal metabolism. He stated that there can be
variations in the level of alcohol dehydrogenase enzymes in a person’s body that affect the
rate at which he or she metabolizes alcohol. When asked whether the variation in the
dehydrogenase enzyme could be measured, Dr. Helton stated: “Not that I can find in
literature. It’s just clinically not obtainable at this time. It’s done through research only.”
Dr. Helton submitted two scholarly articles to support his statements concerning variations
in the dehydrogenase enzymes and was questioned extensively about the import of the
articles. Dr. Helton also testified that Ms. Nixon was taking Darvocet, a medication
containing Tylenol, and that Tylenol could have an effect on the rate a person metabolizes
alcohol. He further stated that, according to some literature, “Tylenol can actually inhibit the
production of alcohol dehydrogenase.”

       The crux of Dr. Helton’s testimony can be found in the following exchange:

       Q. Now, based on the history that Ms. Nixon provided to you, did you form
       an opinion as to what was the most likely cause of her high blood alcohol level
       on the date in question?

       A. My theory was that she had either a combination of a variant in her alcohol
       dehydrogenase levels that caused her to metabolize more slowly than the
       average person would, in addition to the medication she was taking, which also
       affected her alcohol dehydrogenase levels, and the activity of those enzymes
       in the cytochrome P450 system that she used to metabolize the rest of her
       alcohol.




                                              -6-
On cross-examination, Dr. Helton acknowledged that another possible explanation for the
levels of blood alcohol shown in the tests could be that Ms. Nixon consumed five to six
ounces of alcohol at 9:00 or 10:00 that morning. While admitting that this explanation was
“a possibility,” Dr. Helton stated, “I don’t want to incriminate my patient here.”

       Sheila Lilly, a department coordinator for the city’s department of buildings and
codes, testified that she interacted with Ms. Nixon on a regular basis and found her to be “a
really great boss.” Ms. Lilly had never known Ms. Nixon to be under the influence of
alcohol while doing the city’s business.

       Dr. David Stafford testified on behalf of Ms. Nixon as an expert in forensic
toxicology. He testified about scientific treatises regarding the role of alcohol dehydrogenase
and the variability in alcohol elimination rates. Dr. Stafford answered hypothetical questions
regarding the effect of different elimination rates on the level of alcohol remaining in a
person’s blood if the person drank the amount of alcohol described by Ms. Nixon. Dr.
Stafford also stated that alcohol accumulation, “the buildup of alcohol concentration over a
period of time,” can occur.

       Dr. Stafford gave the following testimony with regard to Ms. Nixon’s case:

       Q. And, Doctor, based on your review of the facts and testimony in this case,
       did you form an opinion as to whether [alcohol dehydrogenase deficiency] was
       a factor in this case?

       A. Well, I looked at some of the inconsistencies. For example, she could not
       have achieved a blood alcohol concentration of about a .13 at 11 o’clock the
       following day based on what she indicates that she drank the day before.

       Q. Assuming a normal metabolical rate?

       A. Yes. Correct.

       Q. Assuming the fact that, when she reported to work that morning, she was
       considered able to go to trial and go to court; that several witnesses testified
       that she saw no evidence of impairment or intoxication; that some said that
       they felt her eyes looked different, and that she walked more carefully; but that
       she went to trial ready to appear as a witness as the primary trial representative
       for the City; the fact that she–no time while at work was she observed
       consuming any alcohol; and that, in fact, her testimony that she was with
       somebody and her door was open the entire time she was there–assuming those

                                              -7-
      facts as true, Doctor, do you have an opinion as to what is the most probable
      explanation for her blood alcohol level?

      A. The most probable explanation that I can see would be that her elimination
      rate was somewhat slower than normal.

      On cross-examination, Dr. Stafford acknowledged that there were other possible
explanations for Ms. Nixon’s test results if she was not being truthful and that his
conclusions were based on the assumption that Ms. Nixon’s statements were truthful. He
was questioned further about the possible effects of a deficiency in eliminating alcohol:

      Q. What would prevent her from eliminating the alcohol?

      A. If there were a deficiency in the alcohol dehydrogenase.

      Q. Wouldn’t it have to be a deficiency below anything you’ve ever heard of?

      A. I haven’t considered that, and I don’t know.

      Q. . . . [T]hese quantities [of alcohol consumed in prior days], as they were
      disclosed by her, would not result in her having any blood alcohol level when
      she begins consuming on the next day.

      A. She might.

      Q. She might. So, then, it could have some effect on her?

      A. Yes.

      Q. Let’s explore the “might.” What do you mean by that?

      A. What I’m saying is, if she did not eliminate all of the alcohol before she
      began consuming again, then the accumulation would be–there would be an
      addition to the accumulation, and so she could have more than that.

      Q. Well, under what scenario would she not eliminate these amounts of
      alcohol?

      A. Well, that’s what I indicated. If she had a alcohol dehydrogenase
      deficiency, she might not eliminate all of the alcohol that she consumed.

                                           -8-
       Q. Is it your testimony that, if her alcohol dehydrogenase enzyme was such
       that her elimination rate was the absolute lowest .005, that she would not have
       eliminated the quantities of alcohol that are reflected in Exhibit 17 on a daily
       basis before she went to the next consumption?

       A. That would be possible.

       Q. Possible. Is that a possible explanation for the .133 at 10:54 a.m. on
       11/16?

       A. It’s not very probable, but I can’t say it couldn’t happen.

       Q. You certainly couldn’t say, within a degree of professional certainty in
       your field, that that’s the reason that she recorded a .133 at–on November 16 th .

       A. That’s correct.

        Dr. Stafford further testified that he did not think the medications Ms. Nixon was
taking would have affected the rate at which she eliminated the alcohol from her system.
Although Tylenol in sufficient quantities could slow down the rate of elimination of alcohol,
Dr. Stafford did not think the amount of Tylenol in the medication taken by Ms. Nixon would
have a dramatic effect. He acknowledged that Ms. Nixon’s test results could be explained
by the consumption of alcohol during the office hours that morning. Dr. Stafford thought
that it was possible to do testing to evaluate Ms. Nixon’s elimination rate.

       Ms. Nixon’s husband, Roy Nixon, testified about his wife’s consumption of alcohol
on the night before the testing.

        Ms. Nixon herself testified. She addressed, among other topics, her history with the
city department of building and codes, her consumption of alcohol during the relevant time
period, and her recollection of specific events. She did not dispute the validity of the test
results but maintained that she had not had anything to drink after the Bailey’s in the early
morning hours and that she had not felt herself to be impaired on the morning of November
16, 2007.

       The city then called its own expert witness, Dr. Howard Taylor, a toxicologist. Dr.
Taylor rejected the theories put forward by Ms. Nixon to explain her elevated blood alcohol
levels–including an impaired ability to metabolize alcohol or the effect of prescription
medications. After reviewing the articles presented by Dr. Stafford, Dr. Taylor found no
evidence of any documented case of alcohol dehydrogenase deficiency sufficient to explain

                                              -9-
the test results in Ms. Nixon’s case. He stated that there were tests that could be used to
confirm or contradict Ms. Nixon’s theory that she had an impaired ability to metabolize
alcohol.

        The city’s last two witnesses were Monty Kapavik, codes inspector, and Gary
Whitaker, who was an assistant in the buildings and codes department at the time of Ms.
Nixon’s termination. Mr. Kapavik testified about an incident prior to the morning in
question when Ms. Nixon visited an inspection site and he observed that she appeared to be
under the influence of alcohol. Mr. Whitaker testified about his observations of Ms. Nixon
at the same inspection site, when he too noticed signs of impairment.

       The hearing officer received post-hearing briefs from both parties and entered a
decision on August 6, 2008, concluding that “the decision of the City Manager to terminate
the employment of the employee is proper in all respects and is sustained.” The hearing
officer made findings of fact in a separate opinion incorporated by reference in the order.

                                        Chancery Court

        Ms. Nixon filed an action in chancery court requesting a de novo review of the DRB’s
decision, citing provisions of the city code and DRB rules of procedure. The city filed a
motion asserting that the proper standard of review was governed by the Uniform
Administrative Procedures Act (“UAPA”). In an order and memorandum opinion filed in
February 2009, the chancellor ruled that the proceedings were governed by the UAPA and
that the applicable standard of review was found at Tenn. Code Ann. § 4-5-322.

       After a hearing in April 2009, the court entered a memorandum opinion on May 5,
2009, and an order on May 22, 2009, affirming the decision of the DRB. Ms. Nixon filed
a motion to alter or amend, which the court denied with the exception of changing language
in one footnote.

                                      ISSUES ON A PPEAL

       On appeal, Ms. Nixon argues that the chancery court erred in refusing to conduct a
de novo review of the city’s termination of her employment, that the city was estopped from
relying on the test results because it violated its own policy, that the city was estopped by its
actions from terminating her employment, that she was denied due process, that the city
abused its discretion in terminating her employment, and that there was not substantial and
material evidence to justify the city’s termination of her employment.




                                              -10-
                                         S TANDARD OF R EVIEW

       The parties disagree over the proper standard of review in this case. Ms. Nixon argues
that the standard of review is determined by a provision of Murfreesboro’s city charter,
whereas the city argues that the standard of review is determined by the UAPA.

      At the time of Ms. Nixon’s termination by the city, Section 36 of the Murfreesboro
City Charter provided, in pertinent part:

       The judgment and findings of the [Disciplinary Review Board], or a Hearing
       Officer appointed by the board . . . shall be final and shall be subject to review
       only for illegality or want of jurisdiction, except that any employee whose
       dismissal had been ordered or sustained by judgment of the board or a Hearing
       Officer appointed by the board may . . . file a petition for review in the
       Chancery Court of Rutherford County, Tennessee, where the case may be
       heard DE NOVO solely upon the certified record.

1993 T ENN. P RIV. A CTS CH. 104, § 17; 1997 T ENN. P RIV. A CTS CH. 94, § 2 (emphasis added).3
In asserting that these charter provisions are determinative in this case, Ms. Nixon points to
Tenn. Code Ann. § 27-9-101, which addresses the right of review by common law writ of
certiorari:

       Anyone who may be aggrieved by any final order or judgment of any board or
       commission functioning under the laws of this state may have the order or
       judgment reviewed by the courts, where not otherwise specifically provided,
       in the manner provided by this chapter.

Ms. Nixon asserts that the phrase “where not otherwise specifically provided” indicates that
the provisions of Title 27, Chapter 9 do not apply here since the City of Murfreesboro has
a specific charter provision on the review of DRB decisions. The city argues that the
standard of review is determined by Tenn. Code Ann. § 27-9-114, which provides for review
pursuant to the UAPA.

       Like the chancellor, we find Ms. Nixon’s position to be erroneous. The language in
Tenn. Code Ann. § 27-9-101 upon which Ms. Nixon relies contemplates that the legislature
may specifically provide means of review other than the common law writ of certiorari in
certain contexts. It does not authorize a private act to supersede the general law. It is a well-
established principle of law that “a private act cannot suspend or supersede the general law.”

       3
           These provisions were subsequently deleted by 2009 TENN . PRIV . ACTS CH . 9, § 1.

                                                    -11-
Baugh v. Williamson County Hosp. Trs., 679 S.W.2d 934, 937 (Tenn. 1984). In Wilson v.
Town of Greeneville, 509 S.W.2d 495, 497 (Tenn. Ct. App. 1973), there was a conflict
between a private act and a previous version of what is now Tenn. Code Ann. § 27-9-114 4
as to how to secure review of the decision of a civil service board, and the court held that the
provisions of the statute controlled.

       Tenn. Code Ann. § 27-9-114(b)(1) specifically addresses the standard of review
applicable to certain proceedings involving public employees:

        Judicial review of decisions by civil service boards of a county or municipality
        which affects the employment status of a county or city civil service employee
        shall be in conformity with the judicial review standards under the Uniform
        Administrative Procedures Act, § 4-5-322.

In Huddleston v. City of Murfreesboro, 635 S.W.2d 694, 696 (Tenn. 1982), the court stated
that the predecessor to what is now Tenn. Code Ann. § 27-9-114, which provided for review
by common law writ of certiorari, was “the exclusive remedy for judicial review of
administrative determinations respecting the employment status of such employees.” We
have concluded that Tenn. Code Ann. § 27-9-114(b) governs the standard of review in this
case and controls over any conflicting provisions of the city charter.5

        Pursuant to Tenn. Code Ann. § 27-9-114(b)(1), the standard of review in this case is
found at Tenn. Code Ann. § 4-5-322, part of the UAPA. Tenn. Code Ann. § 4-5-322(h)
states:

        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:


        4
         Under this previous version of the statute, review was by common law writ of certiorari. See City
of Memphis v. Civil Serv. Comm’n, No. W2003-02799-COA-R3-CV, 2004 WL 3021120, at *3 n.7 (Tenn.
Ct. App. Dec. 29, 2004); Wilson v. Town of Greenville, 509 S.W.2d at 496.
        5
          Apart from her reliance on the city charter, Ms. Nixon does not otherwise challenge the applicability
of the provisions of Tenn. Code Ann. § 27-9-114. Our Supreme Court has made clear that, for Tenn. Code
Ann. § 27-9-114(b)(1) to apply, “there must (1) be a proceeding before a ‘civil service board’ and (2) a
decision that affects the ‘employment status’ of a civil service employee.” Tidwell v. City of Memphis, 193
S.W.3d 555, 559 (Tenn. 2006). The statute has been found applicable to municipal entities even though they
are not called civil service boards if they effectively act as civil service boards “by making decisions that
affect a worker’s employment status.” Id. at 562.

                                                     -12-
       (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.

The UAPA’s narrow standard of review for an administrative body’s factual determinations
“suggests that, unlike other civil appeals, the courts should be less confident that their
judgment is preferable to that of the agency.” Wayne County v. Tenn. Solid Waste Disposal
Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App. 1988). This court, like the trial court,
must apply the substantial and material evidence standard to the agency’s factual findings.
City of Memphis v. Civil Serv. Comm’n, 239 S.W.3d 202, 207 (Tenn. Ct. App. 2007); Bobbitt
v. Shell, 115 S.W.3d 506, 509-10 (Tenn. Ct. App. 2003). With respect to questions of law,
our review is de novo with no presumption of correctness. County of Shelby v. Tompkins,
241 S.W.3d 500, 505 (Tenn. Ct. App. 2007).

                                           E STOPPEL

        Ms. Nixon makes two estoppel arguments: (1) that the city is estopped from relying
on the results of blood alcohol testing because it violated its own policy by failing to provide
a medical review officer (“MRO”); and (2) that the city is estopped from terminating Ms.
Nixon’s employment by its actions in allowing her to work after there was a reasonable
suspicion that she was intoxicated. For the reasons set out below, we find no merit in either
argument.

        To establish equitable estoppel, a doctrine that is generally disfavored, a party must
prove that the defendant did the following: (1) engaged in conduct amounting to false
representation or concealment of material facts or conduct calculated to give the impression
that the facts are otherwise than the defendant later attempts to assert; (2) with an expectation

                                              -13-
that the other party would act upon that conduct; and (3) with actual or constructive notice
of the actual facts. Melton v. City of Lexington, No. W2005-01167-COA-R3-CV, 2006 WL
2032558, at *7 (Tenn. Ct. App. July 20, 2006); Consumer Credit Union v. Hite, 801 S.W.2d
822, 825 (Tenn. Ct. App. 1990). The party invoking equitable estoppel must have a lack of
knowledge of the truth and a lack of means of gaining that knowledge, must have relied upon
the defendant’s conduct, and must have prejudicially changed position by virtue of that
reliance. Melton, 2006 WL 2032558, at *7; Faust v. Metro. Gov’t of Nashville, 206 S.W.3d
475, 497-98 (Tenn. Ct. App. 2006).

        Equitable estoppel does not apply to local governments to the same extent it might
apply to private individuals. Paduch v. City of Johnson City, 896 S.W.2d 767, 772 (Tenn.
1995); Shahan v. Franklin County, No. M2002-00725-COA-R3-CV, 2003 WL 23093836,
at *3 (Tenn. Ct. App. Dec. 30, 2003). The doctrine applies to governmental entities only in
“very exceptional circumstances.” Paduch, 896 S.W.2d at 772. The exceptional
circumstances required to justify application of equitable estoppel to a public entity occur
when that entity “took affirmative action that clearly induced a private party to act to his or
her detriment, as distinguished from silence, non-action or acquiescence.” Id. at 772-73
(quoting Bledsoe County v. McReynolds, 703 S.W.2d 123, 125 (Tenn. 1985)). The proof
must show “the existence of an implied contract or that the government has induced a party
to relinquish a cause of action.” Shahan, 2003 WL 23093836, at *4.

                                                         (1)

       With respect to the city’s failure to provide a medical review officer, Ms. Nixon
argues that “if the City had followed its own policy these test results would have never been
sent to the City and Ms. Nixon would not have been fired.” This position is flawed for a
number of reasons.

        The city disputes that it was required to provide an MRO to Ms. Nixon as part of the
alcohol testing procedure but concedes that there was some ambiguity in its policy in the
employee handbook.6 The definitional section of the policy stated that the MRO was
“responsible for receiving and reviewing laboratory results generated by an employer’s drug
testing program and evaluating medical explanation for certain drug testing results.” Later
in the policy, however, there were some statements suggesting that an MRO would be
provided for both drug and alcohol testing. The city emphasizes that, in its definition of
alcohol use, the policy expressly stated: “THERE IS NO MEDICATION EXCEPTION.”
Moreover, the city argues, the policy provided that the city’s drug and alcohol procedures


           6
               The policy was later amended to remove any reference to the use of an MRO with respect to alcohol
testing.

                                                        -14-
would be consistent with federal regulations set forth in 49 C.F.R. Part 40, and that these
regulations prohibit the use of an MRO in the context of alcohol testing.

        Even assuming that the city’s policy required it to provide an MRO to Ms. Nixon, we
have concluded that her estoppel argument fails for lack of any prejudice to her as a result
of her alleged reliance on the city’s obligation to provide an MRO to review her test results.
In the context of drug testing, the MRO will review positive test results to determine whether
prescription or over-the-counter medications taken by the employee might have caused the
positive result. If the employee’s explanation is not satisfactory, the MRO reports the
positive results to the employer. In the context of alcohol testing, however, there is no
exception for medications: an employee is not permitted to have alcohol in his or her blood
over a certain level while at work, regardless of whether it came from a cocktail or a bottle
of mouthwash.

        Ms. Nixon’s position is that alcohol dehydrogenase deficiency or Tylenol slowed her
body’s elimination of alcohol ingested the previous night. Even if an MRO had been
provided to Ms. Nixon, the MRO could not properly have declined to send the positive test
results on to the city based on these theories. Ms. Nixon’s opportunity to present these
theories came at the DRB hearing. It should also be noted that Ms. Nixon herself obtained
the blood testing, the results of which corroborated the breath tests, and that any MRO
requirement did not apply to testing voluntarily obtained by Ms. Nixon. We find no basis to
estop the city from relying on the breath test results.

                                              (2)

       We likewise find no merit in Ms. Nixon’s argument that the city is estopped from
terminating her employment due to its action in allowing her to continue working for several
hours after Mr. Ives first developed a reasonable suspicion that she was intoxicated.

        The specific facts cited by Ms. Nixon in support of this argument are that, even after
he became suspicious that Ms. Nixon was under the influence of alcohol, Mr. Ives continued
to rely on her to be his main witness for the scheduled hearing. It was not until Mr. Ives and
Ms. Nixon returned from the courthouse after the hearing was continued that Mr. Ives
reported his concerns to Ms. McGannon. Mr. Ives conceded at the DRB hearing that, in
hindsight, he probably should have reported his concerns sooner. The city emphasizes that
Mr. Ives had no supervisory authority with respect to Ms. Nixon and had no authority to
waive any of the city’s rights under the drug and alcohol policy. The city further argues that,
although its drug and alcohol policy contemplates prompt action once reasonable suspicion
exists, the policy requires only that testing be provided within eight hours of the
determination of reasonable suspicion.

                                             -15-
        In our view, the most obvious flaw in Ms. Nixon’s argument is that she suffered no
harm as a result of the city’s delay in informing her of its reasonable suspicion.7 There is
nothing in the record to suggest that this delay was detrimental to Ms. Nixon in any way. To
the contrary, it would seem that the delay was of benefit to her by allowing additional time
for her body to metabolize the alcohol. Furthermore, Ms. Nixon consented to the testing and
admits that the positive results were valid. She attempts to explain and excuse the test results
based upon a slowed rate of elimination of alcohol from her system.

       In light of the absence of harm to Ms. Nixon and of the exceptional circumstances
required to apply the doctrine of equitable estoppel to a governmental entity, we reject Ms.
Nixon’s estoppel arguments.

                                             D UE P ROCESS

       Ms. Nixon makes three basic arguments to support her position that she was denied
due process in the course of the proceedings leading to her termination: (1) that the DRB
hearing officer erred in considering evidence of alleged prior acts; (2) that the DRB erred in
deciding, in the middle of the hearing, to allow the hearing officer to hear the remaining
evidence and to decide the case; and (3) that the hearing officer was not properly qualified
under the UAPA. We note at the outset that Ms. Nixon does not cite a single legal authority
to support these arguments. Seeing no clear constitutional violations, this court will endeavor
only to address Ms. Nixon’s assertions, not to spend judicial resources fleshing out her
position.

        Ms. Nixon’s first argument is that the hearing officer erred in failing to exclude
certain testimony of alleged prior issues with alcohol consumption while performing work
functions. She emphasizes that there was no written record of these incidents, which she
argues was required under the city’s drug and alcohol policy. While acknowledging that she
agreed to allow some testimony of prior incidents,8 including testimony concerning her
demeanor when inspecting a job site and at some planning commission meetings, Ms. Nixon
asserts that the actual testimony went further than anticipated by including two other alleged
instances and was “highly inflammatory and prejudicial.” The city counters that there was
no dispute that Ms. Nixon was in violation of the policy on November 16, 2007, (although

        7
        It is also difficult to ascertain what representation or concealment of material facts was allegedly
made by the city and relied upon by Ms. Nixon. She was arguably in the best position to know whether she
was under the influence of alcohol.
        8
         According to Ms. Nixon, her attorney had an agreement with counsel for the city regarding the
admission of some testimony concerning alleged prior alcohol use. We find nothing in the record to reflect
this agreement and, therefore, cannot consider it.

                                                   -16-
she presented evidence to justify the violation), and that the evidence of prior incidents was
relevant to the appropriate disciplinary action. Furthermore, the city asserts that the
testimony by Mr. Aydelott, the evidence to which Ms. Nixon most strongly objects, was
relevant to rebut Ms. Nixon’s assertion that she did not have the opportunity to consume
alcohol on the morning in question. Mr. Aydelott testified that Ms. Nixon told him that she
sometimes used miniature liquor bottles to bring alcohol to meetings.

        County and city administrative boards have broad discretion to determine the
admissibility and weight of evidence. See Case v. Shelby County Civil Serv. Merit Bd., 98
S.W.3d 167, 176 (Tenn. Ct. App. 2002); Anderson v. Carter, 512 S.W.2d 297, 306 (Tenn.
Ct. App. 1974). Moreover, the hearing officer stated in his opinion that “no weight was
given to any alleged incidents of impairment by the Employee while on City business as such
was not substantiated by any information contained in the Employee’s records.” We find no
basis for Ms. Nixon’s assertion that she was denied due process by virtue of the admission
of this evidence.

        Ms. Nixon’s second argument is that the DRB erred by changing the decision maker
to the hearing officer alone, a decision allowed by the city’s charter provisions governing the
DRB. According to Ms. Nixon’s position, this action created “the real danger that the
Hearing Officer did not consider all of the evidence with the same scrutiny or for the same
purposes.” Ms. Nixon did not object when the DRB made this election at the end of the first
day of the hearing. Neither did she exercise her right under the city charter to seek review
of the hearing officer’s decision to the full DRB. We find no constitutional implications
here, and if there are any, they were waived.

       Finally, Ms. Nixon argues that the DRB hearing officer, Mr. Duncan, was not
qualified to act as the hearing officer.9 She relies on the UAPA’s definition of hearing


        9
          Ms. Nixon’s brief also makes the following statement: “[I]t is also important to note that the person
conducting and hearing the initial ‘Due Process’ hearing was City Manager, Roger Haley, the person who
fired Ms. Nixon; certainly not an objective[,] fair or impartial judge.” We disagree with the premise of Ms.
Nixon’s statement and with the trial court’s characterization of the city manager’s role at the due process
hearing. Under the city charter, the city manager has the ultimate authority to hire and fire city employees.
After getting the results of Ms. Nixon’s alcohol tests, Mr. Haley put her on administrative leave and stated
that termination was his proposed disciplinary action. At that point, Ms. Nixon was given the opportunity
to present her case to Mr. Haley, who ultimately decided to terminate her employment. Thus, the city
manager was not reviewing his own decision; rather, in accordance with the city charter, he was getting all
of the relevant information and giving Ms. Nixon the chance to be heard prior to making his decision. Thus,
Mr. Haley conducted a pre-termination hearing, also known as a Loudermill hearing, a procedure required
prior to depriving someone of a significant property interest. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985); Davis v. Shelby County Sheriff’s Dep’t, 278 S.W.3d 256, 259-60 (Tenn. 2009).

                                                     -17-
officer: “an agency member, agency employee or employee or official of the office of the
secretary of state, not licensed to practice law . . . .” Tenn. Code Ann. § 4-5-102(4). Mr.
Duncan was appointed in accordance with a city charter provision stating that a hearing
officer appointed by the DRB “shall be a licensed attorney who shall be compensated at an
hourly rate.” Ms. Nixon argues that Mr. Duncan could not properly act as a hearing officer
because he was an attorney and was not an employee of the City of Murfreesboro or an
official of the secretary of state.

       We find no merit in this argument. The UAPA defines a hearing officer as a non-
attorney to distinguish the position from an administrative judge, who must be licensed to
practice law. Tenn. Code Ann. § 4-5-102(1). Contested case hearings may be conducted by
an administrative judge or a hearing officer. Tenn. Code Ann. § 4-5-301(a). In addition, the
UAPA provisions governing contested case hearings contemplate that an agency may be
authorized by law to conduct a contested case hearing “by an administrative judge, hearing
officer or similar officer from the agency.” Tenn. Code Ann. § 4-5-301(e) (emphasis
added).10 The DRB of the City of Murfreesboro was authorized by private act to appoint and
pay a licensed attorney to act as a hearing officer. 1997 T ENN . P RIV. A CTS CH. 94, § 2.
Furthermore, Ms. Nixon did not object to Mr. Duncan’s qualifications at the hearing, nor did
she exercise her right to have his decision reviewed by the full DRB. We fail to see how Ms.
Nixon’s due process rights were compromised.

                                       A BUSE OF D ISCRETION

      Ms. Nixon next argues that the city abused its discretion in terminating her
employment instead of imposing a lesser form of discipline.

       Pursuant to Tenn. Code Ann. § 4-5-322(h), a court may reverse or modify an agency
decision if the rights of the petitioner were prejudiced because the administrative findings,
inferences, conclusions or decisions are “[a]rbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.” Tenn. Code Ann. § 4-5-
322(h)(4). The standard of review under subsection (4) of Tenn. Code Ann. § 4-5-322(h) has
been described as follows:

        In its broadest sense, the standard 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


        10
         Where no such authority has been conferred, a contested case hearing is to be conducted by an
administrative judge or hearing officer employed by the secretary of state. Tenn. Code Ann. § 4-5-301(e).

                                                  -18-
       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 311, 316 (Tenn. 2007). This court has
previously noted that five of the specific review criteria in Tenn. Code Ann. § 4-5-322(h) are
examples of the kind of decisionmaking that would constitute an abuse of discretion:

       Acting in violation of constitutional or statutory provisions [Tenn. Code Ann.
       § 4-5-322(h)(1)] would clearly constitute an “abuse of discretion,” as would
       acting in excess of the decision-maker’s statutory authority [Tenn. Code Ann.
       § 4-5-322(h)(2)], using an unlawful procedure [Tenn. Code Ann. § 4-5-322
       (h)(3)], or making a decision that is unsupported by the evidence [Tenn. Code
       Ann. § 4-5-322(h)(5)].

Office of Attorney Gen. v. Tenn. Regulatory Auth., No. 2003-01363-COA-R12-CV, 2005 WL
3193684, at *8 n.20 (Tenn. Ct. App. Nov. 29, 2005).

        The City of Murfreesboro’s drug and alcohol policy is described in section 3005 of
the city’s employee handbook. Subsection (c)(1)(A) states that the city’s policy “can be
described as a ‘Zero Tolerance Drug Policy.’” Under subsection (c)(1)(B)(i), “[n]o employee
shall report to work with an alcohol concentration of 0.02 or greater . . . .” Subsection
3005(c)(13) states that violation of the drug and alcohol policy “is strictly prohibited and
constitutes grounds for disciplinary action, including termination . . . .” The latter subsection
further sets out the following factors to be considered by the city in determining “to what
extent an employee will be returned to duty, suspended, disciplined, or discharged” for a
violation of the drug and alcohol use policy:

       (A) The degree to which the nature of any criminal charges reduce the City’s
       ability to maintain a safe and efficient working environment.

       (B) The degree to which criminal charges unreasonably undermine public
       confidence in the City’s operations.

       (C) The degree to which the nature of the criminal charges unreasonably
       endangers the safety of other City employees, and/or the public.

       (D) The nature of the criminal charges.

       (E) The nature of the employee’s job at the City.



                                              -19-
        (F) Whether the criminal charges constitute a breach of the employee’s oath
        of office, departmental regulations, or qualifications for the employee’s
        position.

        (G) Whether the employee is a police officer, Safety Sensitive Employee, CDL
        Employee, or works with or around children.

        (H) The existence of any explanatory or mitigating facts or circumstances.

        (I) Whether the employee promptly reports the charge.

        (J) Whether the misconduct involves illegal drugs or misuse of alcohol.

        (K) Whether alcohol misuse involves alcoholic beverages or medication(s)
        containing alcohol.

        (L) Whether an employee has previously violated this policy.

        (M) Any other facts relevant to the employee including, but not limited to,
        years of service and record of performance with the City.

Ms. Nixon was classified as a safety-sensitive employee. The Safety Sensitive Employee
Acknowledgment form signed by Ms. Nixon stated that compliance with section 3005 was
a condition of employment and that “[v]iolation will likely result in termination of my
employment with the City.”

       Ms. Nixon asserts, and we agree, that the city’s policy allows for discretion in
determining what form of discipline is most appropriate. She further asserts that Mr. Haley
disregarded the city policy by applying his own personal policy of terminating any employee
found to have violated the drug and alcohol policy.11 This case, however, presents us with
the narrow issue of whether the DRB’s approval of the city’s initial decision to terminate Ms.
Nixon constitutes an abuse of discretion. We will focus our analysis on that question.




        11
          The testimony established only one instance in which Mr. Haley had terminated an employee for
a drug and alcohol policy violation, and the employee challenged the termination through the administrative
review process. Other employees found in violation of the drug and alcohol policy had chosen to resign.

                                                   -20-
       According to Ms. Nixon’s analysis, 11 or 12 of the 13 factors listed in subsection
3005(c)(13) weigh in favor of a form of discipline less severe than termination.12 This
reasoning is flawed in several respects. This court is to determine whether the city’s decision
to terminate Ms. Nixon represents an abuse of discretion, not whether another result might
have been proper. There is nothing in the city’s policy to suggest that the factors listed in
subsection 3005(c)(13) are to be given equal weight and the result determined by a count of
the pro’s and con’s. Furthermore, as discussed below, the city’s decision is supported by
legitimate reasons.

       In terminating Ms. Nixon, the city manager applied the following analysis of the
factors:

        I have carefully considered the factors set forth in Section 3005(c)(13)
        including the fact that you are classified as a safety sensitive employee.
        Included in my consideration has been that you have been a long standing and
        valued employee for the City of Murfreesboro who has served the City well in
        your leadership of the Buildings and Codes Department for the past nineteen
        years. As you will recall I was one of those persons involved in your hiring
        and I have had much respect for your abilities. However, as City Manager it
        is my responsibility to see that the policies of the City are applied equally to
        all employees regardless of their position. It has consistently been my policy
        that termination is the appropriate discipline when the breath alcohol level of
        an employee has been .04 or greater while that employee has been on the job.
        In reaching my discipline decision, I am also mindful of the testimony at the
        due process hearing of witnesses Gary Whitaker, Monty Kapavik, and Joseph
        Aydelott concerning previous incidences of your impairment while on city
        business from the use of alcohol. You and I previously discussed one of these
        incidents and I advised you that the use of alcohol in such a manner while on
        City business would not be tolerated. However, at the hearing you indicated
        you had no recollection of this meeting occurring.

In his opinion sustaining the city manager’s decision to terminate Ms. Nixon’s employment,
the DRB hearing officer noted in particular that she was both a safety-sensitive employee and
a department head, that her years of service and work performance had been considered, that




        12
           Because we need only determine whether the city abused its discretion, we decline to consider the
facts relevant to each factor. We do not, however, share Ms. Nixon’s view of how many factors might weigh
in her favor.

                                                   -21-
there was no indication of any disparate treatment among employees, and that the safety
employee acknowledgment form clearly stated that termination was the likely result of a
violation.13

        The only case cited by Ms. Nixon in support of her abuse of discretion argument is
City of Memphis v. Civil Service Commission, 239 S.W.3d at 202, a case that actually
supports the decision of the chancellor in this case. In City of Memphis, the city terminated
a police officer because of her involvement in a public altercation. Id. at 203. The city’s
civil service commission reversed the city’s decision as unreasonable, but the chancellor
reversed the civil service commission’s decision on the basis that its actions were arbitrary
and capricious. Id. This court held that the civil service commission’s decision was
supported by substantial and material evidence and that the chancellor erred in finding the
commission’s decision to be arbitrary and capricious. Id. at 211. In the present case, as in
City of Memphis, the decision under review by the courts is that of the administrative body.
The courts must determine whether the decision of the DRB or civil service commission is
arbitrary and capricious or is not supported by substantial and material evidence.

       Ms. Nixon also makes the argument that her elevated blood alcohol level “caused no
harm to no one [sic], it did not result in any of the concerns the policy is designed to
prevent.” She fails to acknowledge, however, that one of the policy’s stated goals is “to
preserve the confidence placed in the City by its employees and the public.” We have no
trouble accepting the city’s position that “[t]ermination of employment for intoxication of
more than three times the limit established by City policy while on the job in the position of
the director of the Buildings and Codes Department is not arbitrary but consistent with the
[City’s] policy.” 14

                              S UBSTANTIAL AND M ATERIAL E VIDENCE

        Ms. Nixon’s final argument is that there was not substantial and material evidence to
justify her termination.

      Substantial and material evidence has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support the rational conclusion and such as to

        13
          The city noted in its brief that, as an employer, it did not want to send a message “that there is one
standard of conduct applied to non-supervisory employees for alcohol abuse and a different standard applied
to supervisors or department heads.”
        14
          Since the policy prohibited an alcohol concentration of 0.02 or greater and testing showed Ms.
Nixon to have a concentration of over 0.13, it appears that her level was over six times the limit established
under the policy.

                                                     -22-
furnish a reasonably sound basis for the actions under consideration.” Dickson v. City of
Memphis Civil Serv. Comm’n, 194 S.W.3d 457, 464 (Tenn. Ct. App. 2005). The substantial
and material evidence standard requires “something less than a preponderance of the
evidence, but more than a scintilla or glimmer.” Id. (quoting Wayne County v. Tenn. Solid
Waste Disposal Control Bd., 756 S.W.3d 274, 280 (Tenn. Ct. App. 1988)). Pursuant to Tenn.
Code Ann. § 4-5-322(h)(5)(B), we must “take into account whatever in the record fairly
detracts from” the weight of the evidence, but must not substitute our judgment “for that of
the agency as to the weight of the evidence on questions of fact.” Thus, we must refrain from
reweighing the evidence. City of Memphis, 239 S.W.3d at 208. Where the agency has
conducted a hearing and heard testimony from witnesses, we must give the agency’s
credibility determinations great weight. Id. Furthermore, the substantial and material
evidence standard “does not justify reversal of an administrative decision only because the
evidence could also support another result.” Id. A reviewing court “may reject an
administrative determination only if a reasonable person would necessarily arrive at a
different conclusion based on the evidence.” Id.

        In making her argument, Ms. Nixon lists 25 facts she claims to be “undisputed and
unrebutted.” These include a number of facts, such as statements regarding her substantial
contribution to the buildings and codes department and her unblemished disciplinary record,
that are indeed undisputed. With respect to other of the “facts” emphasized by Ms. Nixon,
however, the record contains at best conflicting evidence. For example, Ms. Nixon makes
the following assertion: “After reporting to work Ms. Nixon was continuously in the presence
of or in view of other employees.” The evidence in the record is not as conclusive as Ms.
Nixon asserts. While several employees stated that they were with Ms. Nixon for most of
the morning, there is no proof that her actions were observable every minute of the morning.
Ms. Green and Ms. Stem testified that they could not recall whether Ms. Nixon went to the
restroom at some point during the morning. In any event, even if the evidence on this point
were conclusive, it does not detract from material evidence supporting the finding that Ms.
Nixon violated the policy based on her alcohol level.

       Ms. Nixon’s list of factual assertions includes the following statements regarding the
effect of medications:

       Ms. Nixon was taking many medications, several of which were processed
       through the liver, which controls the metabolism and elimination of alcohol.

       According to Ms. Nixon’s primary treating physician three of those drugs,
       Librax, her antibiotic and Darvocet (containing very large doses of Tylenol)
       impeded Ms. Nixon’s ability to metabolize (absorb or eliminate) alcohol.



                                            -23-
       Ms. Carpenter agreed that there is a phenomenon known as the “Tylenol
       Effect” and that Tylenol slows down a person’s ability to eliminate alcohol.

While Ms. Nixon’s primary care physician testified that her medications may have affected
her rate of eliminating alcohol from her system, Dr. Stafford testified that the effect of
Tylenol, if any, would not have been significant, and Dr. Taylor testified that Tylenol would
not have affected the test results. Moreover, even under the assumption that Tylenol could
have had some effect, there is no evidence to suggest it would have resulted in the level of
alcohol shown in Ms. Nixon’s blood tests. No evidence was presented to establish that an
enzyme deficiency actually played a role, only that such a phenomenon was possible.

        After listing the 25 “facts,” Ms. Nixon emphasizes that “[t]here was no evidence that
Ms. Nixon consumed any alcoholic beverages while at work or four hours before reporting
to work on the date in question,” and that the only basis for her termination was her blood
alcohol level. Under the city’s drug and alcohol policy, having a blood alcohol level above
0.02 constitutes a violation. While the logical explanation for such a blood alcohol level is
that the employee consumed alcohol while at work or within four hours of reporting to work,
the city was not required to prove that the employee had consumed alcohol during that
period. The blood alcohol level alone is sufficient grounds for termination.

        The evidence produced by Ms. Nixon to explain the test results was refuted by the
city’s expert toxicologist. Ms. Nixon asserts that “Dr. Helton [her primary care physician]
demonstrated greater knowledge, was able to explain in greater detail, and substantiate his
opinions more specifically than Dr. Taylor [the city’s toxicologist].” The hearing officer
heard all of the evidence, was able to assess the credibility of the various witnesses, and
declined to accept the explanation Ms. Nixon offered to justify the objective test results. The
hearing officer determined that Ms. Nixon had violated the policy and should be terminated.15
There is substantial and material evidence to support the conclusions reached by the hearing
officer.




       15
         Ms. Nixon did not request review by the full DRB, so the hearing officer’s decision became the
board’s decision.

                                                 -24-
                                        C ONCLUSION

       The decision of the circuit court is affirmed. Costs of this appeal are assessed against
the appellant, Ms. Nixon; execution may issue if necessary.


                                                    _________________________________
                                                    ANDY D. BENNETT, JUDGE




                                             -25-
