                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               February 18, 2014 Session

ARLENA TIPPIE v. TENNESSEE DEPARTMENT OF REVENUE, ET AL.

                Appeal from the Chancery Court for Davidson County
                       No. 118IV   Russell T. Perkins, Judge




               No. M2013-00199-COA-R3-CV - Filed May 19, 2014



Former revenue enforcement officer challenges her termination from the Tennessee
Department of Revenue. Because substantial and material evidence supports the Civil
Service Commission’s decision, we affirm the chancery court’s judgment.

 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 B EN H. C ANTRELL, S R.
J., and R ICHARD H. D INKINS, J., joined.

Arlena Tippie, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Michael Markham, Senior Counsel; for the appellees, Tennessee Department of
Revenue, Tennessee Civil Service Commission, and Charles A. Trost.


                                        OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

        Arlena Tippie worked as a revenue enforcement officer for the Tennessee Department
of Revenue (“TDOR”) in the Tax Enforcement Division’s Memphis office from August 16,
2000 until January 30, 2009. Her termination was effective February 9, 2009. Ms. Tippie
filed an administrative appeal of her termination, and she received a due process hearing and

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a fourth-step hearing.1 Commissioner Farr of the TDOR upheld the termination and
informed Ms. Tippie that she would not be recommended for rehire.

       Ms. Tippie eventually sought a hearing before the Civil Service Commission. On
June 2, 2010, a hearing was conducted before an administrative law judge (“ALJ”).

                                   Evidence Adduced at the Hearing

       Part of Ms. Tippie’s job as a revenue enforcement officer was to collect and process
money from delinquent taxpayers in accordance with TDOR Policy 2.1 which states that
departmental employees will process all monies and documents received from taxpayers by
the end of the work day on which such funds are received, but in no case later than 10:00
a.m. on the following work day.2 Ms. Tippie did not have problems performing her job until
2007. In August 2007, while stamping the daily mail that was to be sent to Nashville, Ms.
Tippie’s supervisor “found that [Ms. Tippie] had checks that were quite old compared to the
date of the stamp date” and, accordingly, issued her an oral warning for failure to timely
process checks in accordance with Policy 2.1. The supervisor explained to Ms. Tippie that
funds had to be processed in a timely manner, not two or three weeks late, and memorialized
the oral warning in a handwritten memo.3

        From August 2007 forward, Ms. Tippie had a new supervisor, Ms. Jones. In a January
18, 2008 interim evaluation, Ms. Jones issued Ms. Tippie a “marginal” performance rating
because thirty-nine percent of her cases were “immediate cases,” meaning that they were
ninety days old. During the meeting corresponding with the interim evaluation, Ms. Jones
and Ms. Tippie discussed Ms. Tippie’s retaining state funds too long before sending them
to Nashville. Ms. Jones shared advice with Ms. Tippie about how to improve her
performance, offered to help Ms. Tippie with her work load,4 and gave her thirty days to
improve her performance. In February 2008, Ms. Jones issued a written warning because,
in her judgment, Ms. Tippie’s “work performance was still marginal and she was still holding
mail too long [and] payments too long.” Along with the written warning, Ms. Jones informed


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       Ms. Tippie’s former attorney represented her at the fourth-step hearing. The parties stipulated that
the TDOR satisfied the requirements for minimum due process.
        2
            There is no dispute that Ms. Tippie was aware of this policy and agreed to follow it.
        3
        The supervisor’s memo read, “I told [Ms. Tippie] that she should keep more current and not hold
payments out so long. She stated that she kept getting tied up and could not process her payments.”
        4
          Ms. Jones reduced Ms. Tippie’s work load by removing certain duties, such as business workshop
duties, for which she was previously responsible.

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Ms. Tippie that a follow-up review would take place in thirty days.

       Based on the same job performance issues and because she found additional payments
that Ms. Tippie failed to timely process, Ms. Jones gave Ms. Tippie two more oral warnings
before recommending a three-day suspension. To determine whether the suspension was
warranted, the Director of Revenue Enforcement met with Ms. Tippie in a due process
hearing. After the hearing, the Director of Revenue Enforcement recommended Ms. Tippie’s
suspension to the Commissioner.

       Following the three-day suspension and after meeting with upper management, Ms.
Jones recommended that Ms. Tippie be terminated because she “was still holding her
payments too long and her job performance was marginal” because she was “not clearing her
cases quick enough.” While Ms. Jones was cleaning out Ms. Tippie’s work station, she
found many checks that taxpayers had submitted but that Ms. Tippie had failed to process.5
In Ms. Jones’s opinion, this constituted a mishandling of state funds.

      By initial order entered August 16, 2010, the ALJ upheld Ms. Tippie’s termination and
concluded:

       The [TDOR] has carried its burden of proof to show by a preponderance of the
       evidence that [Ms. Tippie’s] termination should be upheld based upon her poor
       work performance.

       Ms. Tippie was aware of the [TDOR’s] Standards of Conduct and was aware
       of the policies pertaining to the handling of state funds. Each time she was
       cited for violation of these policies, the implications of her actions were
       pointed out to her. Thus it is reasonable to infer she understood what she was
       told would be the consequences of her actions. Yet she continued to fail to
       process state funds in a timely manner in accordance with Department of
       Revenue policies.

       Accordingly, the [TDOR] has established by a preponderance of the evidence
       that [Ms. Tippie’s] termination was the proper discipline in this case and in
       accordance with the progressive discipline guidelines.

The Civil Service Commission denied Ms. Tippie’s request for reconsideration of the ALJ’s
decision, issued its final order on November 5, 2010, and denied Ms. Tippie’s petition for
reconsideration of the final order.

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          These unprocessed checks were three to six years old.

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       Ms. Tippie petitioned for judicial review on January 4, 2011. Following a hearing and
by memorandum order entered November 26, 2012, the chancery court affirmed the Civil
Service Commission’s decision to uphold Ms. Tippie’s termination from the TDOR. The
court found substantial and material evidence to support the Civil Service Commission’s
finding that Ms. Tippie repeatedly violated Policy 2.1 and found that “termination was proper
given the nature of the violations and because TDOR had properly engaged in progressive
discipline.”

       Ms. Tippie appealed.

                                   S TANDARD OF R EVIEW

      Pursuant to Tenn. Code Ann. § 4-5-322, the trial court may review “contested case”
proceedings that come before state administrative agencies. A party may appeal from the
chancery court’s final judgment to this Court. Tenn. Code Ann. § 4-5-323(a).

        The Uniform Administrative Procedures Act (“UAPA”), Tenn. Code Ann. § 4-5-101
et seq., limits our scope of review of the agency decision to a “‘narrow and statutorily
prescribed review of the record made before the administrative agency.’” Crawford v. Dep’t
of Fin. & Admin., No. M2011-01467-COA-R3-CV, 2012 WL 219327, at *5 (Tenn. Ct. App.
Jan. 24, 2012) (quoting Metro. Gov’t v. Shacklett, 554 S.W.2d 601, 604 (Tenn. 1977)). 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 Cnty. v. Tenn. Solid Waste Disposal
Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App. 1988).

       The review pursuant to the UAPA is not de novo, but is confined to the record made
before the agency. Tenn. Code Ann. § 4-5-322(g); Shacklett, 554 S.W.2d at 604. This Court
may reverse or modify the agency’s decision only if it is:

       (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

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       light of the entire record.

Tenn. Code Ann. § 4-5-322(h). Furthermore, “[n]o agency decision pursuant to a hearing
in a contested case shall be reversed . . . unless for errors that affect the merits of such
decision.” Tenn. Code Ann. § 4-5-322(i).

       Under the UAPA, 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). Substantial and material evidence is
“‘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.’” Wayne
Cnty., 756 S.W.2d at 279-80 (quoting S. Ry. v. State Bd. of Equalization, 682 S.W.2d 196,
199 (Tenn. 1984)). Substantial evidence “requires something less than a preponderance of
the evidence . . . but more than a scintilla or glimmer.” Id. at 280 (citations omitted).

                                          A NALYSIS

         Ms. Tippie primarily argues that the record before the chancery court was incomplete
because her attorney below concealed information. However, she raises this issue for the
first time on appeal, and it is unsupported by any citation to the record, so we cannot consider
it. Tenn. R. App. P. 13(c). Our review in this case is limited to the record made before the
Civil Service Commission. See Tenn. Code Ann. § 4-5-322(g); Shacklett, 554 S.W.2d at
604. Thus, the dispositive issue for our consideration is whether substantial and material
evidence supports the decision to uphold Ms. Tippie’s termination.

       In her testimony, Ms. Tippie never denied that she was untimely processing taxpayer
checks or failing to clear her immediate caseload. Despite oral warnings, written warnings,
and reviews, Ms. Tippie’s performance did not improve and her supervisor continued to find
untimely processed checks in Ms. Tippie’s case inventory. Each time Ms. Tippie was
disciplined, her supervisor explained how she had failed to meet her job requirements,
offered her a chance to give reasons for her actions, and advised her how to improve. Ms.
Tippie characterized these actions as “harassment.”

       The evidence shows that Ms. Tippie underperformed compared to others who held her
position. Ms. Jones explained that Ms. Tippie’s caseload was significantly higher than those
of other revenue enforcement officers:

       Q. And Ms. Tippie, on this sheet, has more cases than anyone, correct?

       A. Correct. The reason she had that many cases is because Ms. Tippie wasn’t

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       clearing any cases. My other Revenue Officers cleared their cases and they
       went out into the field and they requested levies and they requested liens and
       they did dormants and they did closures and they did partial payment and they
       did offer and compromise agreements, and all those things would get your
       caseload down low, where Ms. Tippie did not do it so, therefore, her caseload
       will be high.

In November 2008, for example, Ms. Tippie had 500 cases compared to another revenue
enforcement officer who had 281. Ms. Jones stated that this difference was because “[t]he
other officers [were] working and doing their job.” Ms. Jones conceded that some cases are
harder than others, but explained, “I always tell my officers don’t linger over hard cases,
bring it to my attention and let me know what I can do with it and you just go on and clear
the rest of the work and get it on out.” However, Ms. Tippie “very seldom” asked for
assistance on difficult cases.

       The testimony and exhibits in the record support the ALJ’s finding that Ms. Tippie
repeatedly violated TDOR policy 2.1. Termination was proper because Ms. Tippie did not
improve her work performance despite several opportunities to do so. Based on our careful
review of the record and relevant authorities, we have determined that substantial and
material evidence supports the chancery court’s judgment that the Civil Service
Commission’s decision to terminate Ms. Tippie should be upheld.

                                       C ONCLUSION

       For the foregoing reasons, we affirm the chancery court’s decision to uphold Ms.
Tippie’s termination. Costs of appeal are assessed against the appellant, Arlena Tippie, and
execution may issue if necessary.


                                                            _________________________
                                                            ANDY D. BENNETT, JUDGE




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