Tennessee Department of Human Services v. Tennessed Civil Service Commission and Frank Mahon ( 1995 )

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT NASHVILLE
_______________________________________________________
)
TENNESSEE DEPARTMENT OF ) Davidson County Chancery Court
HUMAN SERVICES, ) Rule No. 94-2309-I
)
Plaintiff/Appellee. )
)
VS. ) C.A. No. 01A01-9504-CH-00143
)
TENNESSEE CIVIL SERVICE )
COMMISSION and FRANK MAHON, )
Defendant/Appellant.
)
)
FILED
Oct. 4, 1995
)
______________________________________________________________________________
Cecil Crowson, Jr.
Appellate Court Clerk
From the Chancery Court of Davidson County at Nashville.
Honorable Irvin H. Kilcrease, Jr., Chancellor
Larry D. Woods, Nashville, Tennessee
Attorney for Defendant/Appellant Frank Mahon.
William B. Russell, Jr., General Counsel
Tennessee Department of Human Services
Attorney for Plaintiff/Appellee.
OPINION FILED:
AFFIRMED
FARMER, J.
CRAWFORD, J. : (Concurs)
KOCH, J. : (Concurs)
This appeal arises from the chancery court's reversal of a final order of the Tennessee
Civil Service Commission (the Commission). The Commission's final order reinstated Appellant,
Frank Mahon, an employee who had been dismissed by the Cocke County Department of Human
Services (Cocke County DHS). The chancery court reversed the Commission's final order, finding
that the final order was unsupported by substantial and material evidence in the record before the
Commission.
The pertinent facts are as follows: In May 1983, DHS hired Mr. Mahon as an
eligibility counselor in the family assistance unit of its Cocke County office. He was a native of New
Jersey, who had served twenty-five years in the military prior to his employment with DHS.
Mr. Mahon's job required him to interview applicants to determine eligibility for
AFDC benefits, food stamps and Medicaid, to document and to organize case records, and to make
appropriate referrals to other agencies. Mr. Mahon signed a DHS Job Performance Plan when he
first began his job. The Job Performance Plan required eligibility counselors to have an interviewing
style that did not create hostility in clients, to always treat clients with respect, and never to use harsh
or abusive language with clients.
On Mr. Mahon's initial performance review, his supervisor noted that Mr. Mahon's
interviewing techniques "tend to create some hostility" in clients. On his next two annual reviews,
Ralph Samples, Mr. Mahon's supervisor, noted a problem with his interviewing skills, stating that
at times Mr. Mahon appeared impatient, discourteous, and abrasive. In 1985, Mr. Samples described
Mr. Mahon's personality as abrasive and stated that Mr. Mahon "needs to exercise more self-control
in interviews." In July, 1986, Mr. Samples gave Mahon an oral warning concerning his behavior
toward clients during interviews.
In 1986, Ella Ford became Mr. Mahon's supervisor. Between 1986 and 1988, all of
Mahon's performance evaluations indicated continued problems with interviewing. In 1987, Ms.
Ford noted that "some clients feel he is somewhat demanding and insensitive. . . . During an
interview Frank can exhibit some impatience and lack of consideration." Later that same year, Mr.
Mahon attended a training session on interview techniques. The Cocke County DHS, however,
continued to receive complaints from clients and employees of other agencies that Mahon had been
"rude" or "hateful."
After receiving eleven such complaints, Ms. Ford gave Mr. Mahon a written warning,
which he appealed to the Commissioner of DHS, Nancy-Ann E. Min. Commissioner Min upheld
the warning, noting Mr. Mahon's previous oral warning and the numerous complaints received since
that time. Commissioner Min reminded Mr. Mahon that "[f]urther disciplinary action may include
suspension, demotion, or dismissal," and that "if circumstances warrant, any step of these procedures
may be bypassed."
Three more complaints were received, and Mahon was given a three-day suspension
in February, 1989. He began receiving counseling after this suspension and no other complaints
were received until 1991.
In July, 1991, an employee of the Department of Youth Development complained to
the Cocke County DHS office about Mahon's behavior. In September, 1991, an employee from
Douglas Cherokee Economic Authority called Larry Butler, the Cocke County DHS Director, to
complain that Mahon's behavior had been "domineering" and "frightening" during a telephone
conversation in which Mahon had accused the employee of "cheating" on behalf of one of Mahon's
clients. When Mr. Butler approached Mr. Mahon about this telephone conversation, Mr. Mahon first
admitted that he had been unprofessional. However, later in the same conversation, he became loud
and argumentative with Mr. Butler. After these incidents, Mahon received a second three-day
suspension in late October, 1991.
In March, 1992, another client complained to Ms. Ford that Mr. Mahon was "rude and
short-tempered." On Mahon's April, 1992, performance evaluation he received a 2, or marginal,
score on "Interviewing" and another 2 on "Contributions to Departmental Objectives."
In the spring and summer of 1992 following his second suspension, the Cocke County
DHS office continued to receive complaints about his behavior. Clients reported that Mr. Mahon
"treats me like a dog and not a human," "treats me like trash," and that he is "one of the most
unpleasant people I have ever met."
On June 12, the district program director from Knoxville and Ms. Ford's supervisor
from Johnson City spoke to Mr. Mahon about his performance. At the meeting, Mahon maintained
that he had never been impolite to anyone. He was told that if further complaints were received
about his behavior toward clients, he would be dismissed.
On July 6, 1992, Mr. Mahon interviewed an elderly client who became extremely
upset during the interview. The woman's niece, who had attended the interview, said that Mahon
had been "rude" and "sarcastic." On July 7, 1992, another of his clients called Ms. Ford to complain.
The client described Mr. Mahon as "snotty," "hateful," "cocky" and having a "smart-aleck" attitude
and treating her "like trash." Another client called to complain the same day.
On July 14, Ms. Ford recommended Mr. Mahon's dismissal. On August 6, the
Commissioner of the Department of Human Services formally dismissed him. The dismissal was
based on the good of the service and on failure to maintain satisfactory and harmonious working
relationships as set forth in T.C.A. § 8-30-326 and Chapter 1120-10-.06(4) of the Rules of Tennessee
Department of Personnel.
Mr. Mahon appealed to the Commission. Among the many witnesses were a number
of Mahon's clients who testified regarding his abrasive behavior. Additionally, his supervisors
described their attempts to motivate him to improve his interviewing style, and their application of
progressive discipline, which had consisted of oral and written warnings and two suspensions.
A number of Mr. Mahon's co-workers testified on his behalf, stating that he had a
loud, gruff voice that clients interpreted as unfriendly. They stated, however, that they had never
observed Mr. Mahon behaving inappropriately with clients.
The Administrative Law Judge (ALJ) concluded that DHS had carried its burden of
proving that Mr. Mahon had failed to maintain satisfactory and harmonious working relationships.
However, the ALJ attributed Mr. Mahon's difficulties to a personality conflict with Mr. Butler, the
high stress-level of his position, and his health problems. The ALJ determined that the proper
remedy would be a two-week suspension rather than termination. Consequently, the ALJ awarded
Mr. Mahon one-half of his back pay, and ordered that he be reinstated as Eligibility Counselor.
The Commission affirmed the ALJ's decision with minor revisions. DHS appealed
the Commission's ruling to the Chancery Court for Davidson County pursuant to the Uniform
Administrative Procedures Act, T.C.A. § 4-5-322. The chancery court reversed the Commission,
finding that, "when viewing the record as a whole, there is no substantial and material evidence to
indicate that a longer suspension would serve any purpose."
We perceive the sole issue on appeal to be whether the chancery court complied with
the standard of review required by T.C.A. § 4-5-322(h). In reviewing the Commission's decision,
the chancellor was governed by T.C.A. § 4-5-322(h) which sets forth the standard of review on
appeal of administrative proceedings as follows:
(h) The court may affirm the decision of the agency or remand
the case for further proceedings. The court may reverse or modify the
decision if the rights of the petitioner have been prejudiced because
the administrative findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion; or
(5) Unsupported by evidence which is both substantial and
material in the light of the entire record.
In determining the substantiality of evidence, the court shall take into
account whatever in the record fairly detracts from its weight, but the
court shall not substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact.
The scope of review in this Court is the same as in the trial court, to review findings
of facts of the administrative agency upon a standard of substantial and material evidence. Humana
of Tennessee v. Tennessee Health Facilities Comm'n, 551 S.W.2d 664 (Tenn. 1977); DePriest v.
Puett, 669 S.W.2d 669 (Tenn. App. 1984). Thus, substantial and material evidence is required to
sustain the action of an administrative tribunal. Pace v. Garbage Disposal Dist., 54 Tenn. App. 263,
267, 390 S.W.2d 461, 463 (1965). What amounts to "substantial and material" evidence as
contained in T.C.A. § 4-5-322(h) is not clearly defined in the statute. Generally, the standard
requires "something less than a preponderance of the evidence," Wayne County v. Tennessee Solid
Waste Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. App. 1988); Consolo v. Federal
Maritime Comm'n, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026 16 L. Ed. 2d 131 (1966), "but more than
a scintilla or glimmer." Wayne County, 756 S.W.2d at 280; Pace, 390 S.W.2d at 463.
The evidence before the tribunal must be such relevant evidence as a reasonable mind
might accept as adequate to support a rational conclusion and such as to furnish a reasonably sound
basis for the action under consideration. Pace, 390 S.W.2d at 463.
T.C.A. § 4-5-322(h) allows the reviewing court, in determining the substantiality of
the evidence, to take into account whatever in the record fairly detracts from its weight. T.C.A. §
4-5-322(h). However, the court may not substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact. Id. This is true even when the evidence would support
a different result. Hughes v. Board of Comm'rs, 204 Tenn. 298, 319 S.W.2d 481 (1958).
Applying the narrow scope of review required by T.C.A. § 4-5-322(h), we believe that
the chancery court was correct in reversing the Commission's decision to reinstate Mr. Mahon after
a two-week suspension.
The record before the ALJ and the chancery court clearly showed that throughout Mr.
Mahon's nine-year employment, Mr. Mahon had received low grades in respect to his interviewing
skills on his yearly performance evaluations. These low grades had come under two different
supervisors. Both supervisors had counseled Mr. Mahon about his continued abrasive behavior
toward clients. Additionally, one month prior to his dismissal, Mr. Mahon's district director warned
Mr. Mahon that he would be dismissed if his interviewing techniques did not improve.
The ALJ found that DHS had met its burden of proving by a preponderance of the
evidence that Mr. Mahon failed to maintain a satisfactory and harmonious working relationship with
his clients. The ALJ further recognized that the failure to maintain a satisfactory and harmonious
working relationship with clients was an example of a ground for discipline under Chapter 1120-10-
.06(4) of the Rules of Tennessee Department of Personnel. However, the ALJ ruled that DHS had
not met its burden in proving that dismissal was an appropriate discipline for the "good of the
service" as required by T.C.A. § 8-30-326(a).1
We agree with the chancery court and hold that DHS carried both its burden in
proving Mr. Mahon's failure to maintain a satisfactory and harmonious working relationship with
clients and its burden in proving that dismissal was an appropriate discipline in the instant case.
The evidence presented before the ALJ showed that for nine years Mr. Mahon had
been either unwilling or unable to change his interviewing style to correspond with DHS
requirements. Moreover, in most instances, Mr. Mahon refused to admit that there was a problem
with his interviewing technique. In total, Mr. Mahon received two oral warnings, a written warning
and two three-day suspensions. However, he never showed any signs of permanent improvement.
A fundamental requirement of Mr. Mahon's job was that he deliver DHS services in
a professional, unoffensive manner. While it is undisputed that Mr. Mahon handled all other areas
of his work efficiently and effectively, it is undeniable that his behavior in regard to his clients and
other agencies, whether intentional or not, was a source of constant complaints to the Cocke County
DHS. It is equally clear that Mr. Mahon's various idiosyncrasies have made it impossible for him
to maintain satisfactory and harmonious relationships with his supervisors, other agencies and the
public. This record discloses a long history of progressive discipline coupled with no overall
improvement in Mr. Mahon's interviewing techniques. There is no evidence that a two-week
suspension would help to reform Mr. Mahon. In fact, at the hearing before the ALJ, Mr. Mahon
stated that, if he were allowed to return to work, he likely would again become frustrated with his
job at the Cocke County DHS in another year or two. Nothing else in the record suggests that Mr.
Mahon is willing or able to be permanently reformed. Therefore, we believe the chancellor properly
1
T.C.A. § 8-30-326(a) provides in pertinent part:
(a) An appointing authority may dismiss any employee in the authority's division when the
authority considers that the good of the service will be served thereby.
reversed the final order of the Tennessee Civil Service Commission that ordered the reinstatement
of Mr. Mahon.
The decision of the chancery court is affirmed. Costs are taxed to the appellant, for
which execution may issue if necessary.
________________________________
FARMER, J.
______________________________
CRAWFORD, J. (Concurs)
______________________________
KOCH, J. (Concurs)