Shelby County, Tennessee v. Gary Morris, Jr.

12/16/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 13, 2019 Session

SHELBY COUNTY, TENNESSEE v. GARY MORRIS, JR. ET AL.

Appeal from the Chancery Court for Shelby County

No. CH-15-0911 JoeDae L. Jenkins, Chancellor

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No. W2019-00049-COA-R3-CV

___________________________________

This appeal arises from Shelby County’s decision to terminate Appellee’s employment

for non-compliance with the County’s residency requirement. The Civil Service Merit

Board (“CSMB”) reversed the termination of Appellee’s employment and reinstated him

with back pay. On appeal, the Shelby County Chancery Court affirmed the CSMB’s

ruling. Finding no error, we affirm the decision of the Chancery Court.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Bridgett L. Stigger, and Sanjeev Memula, Memphis, Tennessee, for the appellant, Shelby

County, Tennessee.

Murray B. Wells, Memphis, Tennessee, for the appellee, Gary Morris, Jr.

OPINION

I. Background

Appellee Gary Morris was an employee of Appellant Shelby County, Tennessee

(“the County”), in its Roads, Bridges, and Engineering Department. As is relevant to this

appeal, the County’s Charter and Policy No. 304 require Shelby County employees to

reside in the County as a condition of their employment. Specifically, the policy provides

that “[a]ll employees hired after September 1, 1986, must be residents of Shelby County

and shall continue to reside in said County as a condition of their employment.” On

January 15, 2015, the County requested Mr. Morris to provide a mailing address for his

2014 W-2. Mr. Morris provided the County with the mailing address of 345 Emma

Road, Oakland, Fayette County, Tennessee, which was his girlfriend’s address. Because

of the County’s residency requirement, Mr. Morris’ supervisors questioned him about the

out-of-county address he provided for mailing his W-2, and Mr. Morris immediately

submitted a request to update his address to 5723 Logan Cove, Arlington, Shelby County,

Tennessee.1

On January 16, 2015, the County began an investigation of whether Mr. Morris

was compliant with the residency requirement. The County requested that Mr. Morris

confirm his compliance (by January 20, 2015) by supplying the County with three

documents from a list of approved documents such as: a rental/mortgage contract, current

driver’s license, motor vehicle registration or title, current voter registration, W-2 form,

current receipt for real estate taxes, or a current utility bill. On January 20, 2015, Mr.

Morris provided a lease agreement for 6804 North Knoll, Millington, a Shelby County

address. The lease was signed on January 17, 2015, and was to become effective on

February 1, 2015. On January 21, 2015, Mr. Morris tendered three additional documents

reflecting an address of 12466 US Highway 64, a Shelby County address. These

documents included a 2013 application for vehicle registration, a 2013 W-2 tax form

(from another employer), and a March 2014 receipt for a trailer.

On January 28, 2015, the County conducted a Loudermill hearing to determine

whether Mr. Morris was a County resident. At that time, Mr. Morris submitted an

affidavit from his aunt, Mosie Thomas, in which she stated that Mr. Morris lived with her

at 12611 Highway 64, Shelby County, Tennessee, from January 1, 2014 through

December 2014. On January 29, 2015, the County terminated Mr. Morris’ employment

on the ground that he failed to prove compliance with the County’s residency

requirement. Mr. Morris appealed the termination to the Shelby County Civil Service

Merit Board (“CSMB”). On April 16, 2015, the CSMB conducted a hearing regarding

this termination.

1

5723 Logan Cove is Mr. Morris’ grandmother’s address. Mr. Morris testified that he listed this

address because his grandmother was his emergency contact for work.

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On May 15, 2015, the CSMB found that the Roads, Bridges, and Engineering

Department did not meet its burden of proof on cause to terminate Mr. Morris’

employment. As such, the CSMB overturned the termination of employment, and

reinstated Mr. Morris with back pay. On July 8, 2015, the County appealed the CSMB’s

ruling to the Shelby County Chancery Court (“trial court”). On December 13, 2018, the

trial court entered an order adopting the CSMB’s findings of fact and conclusions of law.

The County appeals.

II. Issue

The County raises several issues for review. However, we perceive that there is

one dispositive issue: Whether the trial court erred in affirming the CSMB’s decision to

reverse termination of Mr. Morris’ employment and to reinstate him with back pay.

III. Standard of Review

“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 [(“UAPA”)] . . . .” Tenn. Code Ann. § 27-9-114 (b)(1); City of Memphis

v. Civil Serv. Comm’n of Memphis, 238 S.W.3d 238, 242 (Tenn. Ct. App. 2007). The

UAPA provides, in pertinent part:

(a)(1) A person who is aggrieved by a final decision in a contested case is

entitled to judicial review under this chapter, which shall be the only

available method of judicial review. . . .

***

(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 the of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion; or

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(5)(A) Unsupported by evidence 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.

(i) No agency decision pursuant to a hearing in a contested case shall be

reversed, remanded or modified by the reviewing court unless for errors

that affect the merits of such decision.

Tenn. Code Ann. § 4-5-322. In City of Memphis, this Court explained that

[u]pon confirming that an agency has employed the proper legal principles

in the case under review, this Court must then consider the disputed factual

findings and address whether the agency had a reasonably sound basis for

making those findings. See McEwen v. Tenn. Dept. of Safety, 173 S.W.3d

815, 820 (Tenn. Ct. App. 2005). Like the trial court, this Court applies the

substantial and material evidence standard in reviewing the agency’s

findings of fact. Bobbitt v. Shell, 115 S.W.3d 506, 509-10 (Tenn. Ct. App.

2003). Substantial and material evidence is “such relevant evidence as a

reasonable mind might accept to support a rational conclusion” and to

furnish a reasonably sound basis for the decision under consideration. City

of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311, 316 (Tenn. 2007)

(quoting Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876

S.W.2d 106, 110-11 (Tenn. Ct. App. 1993)); Dickson v. City of Memphis

Civil Serv. Comm’n, 194 S.W.3d 457, 464 (Tenn. Ct. App. 2005); Pruitt v.

City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542, at

*7 (Tenn. Ct. App. Aug. 24, 2005); Bobbitt, 115 S.W.3d at 510.

As directed by the statute, we take into account whatever in the

record fairly detracts from the weight of the evidence, but we may not

substitute our own judgment on questions of fact by re-weighing the

evidence. See Tenn. Code Ann. § 4-5-322(h)(5)(B). When the agency

conducts a hearing and can evaluate the witnesses as they testify, this Court

gives the tribunal’s credibility determinations great weight. Pruitt, 2005

WL 2043542, at *7. Moreover, the substantial and material evidence

standard does not justify reversal of an administrative decision only

because the evidence could also support another result. Martin v.

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Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001). Rather, we may

reject an administrative determination only if a reasonable person would

necessarily arrive at a different conclusion based on the evidence. Id.

Likewise, Tennessee Code Annotated [s]ection 4-5-322(h)(4)

permits a reviewing court to modify or reverse an administrative decision if

it is “[a]rbitrary or capricious or characterized by abuse of discretion or

clearly unwarranted exercise of discretion.” Tenn. Code Ann. § 4-5-

322(h)(4). A decision unsupported by substantial and material evidence is

arbitrary and capricious. City of Memphis, 216 S.W.3d at 315. Yet, a clear

error of judgment can also render a decision arbitrary and capricious

notwithstanding adequate evidentiary support. Id. at 316. A decision is

arbitrary or capricious if it “is not based on any course of reasoning or

exercise of judgment, or . . . disregards the facts or circumstances of the

case without some basis that would lead a reasonable person to reach the

same conclusion.” Id. (quoting Jackson Mobilphone, 876 S.W.2d at 110-

11).

City of Memphis, 238 S.W.3d at 243.

IV. Analysis

The County argues that the trial court erred when it affirmed Mr. Morris’

reinstatement with back pay. It alleges that there is substantial and material evidence to

support its decision to terminate Mr. Morris’ employment. As discussed, supra, Shelby

County Government Policy No. 304 provides that “[a]ll employees hired after September

1, 1986, must be residents of Shelby County and shall continue to reside in said County

as a condition of their employment.” The policy further defines “residence” as “the

primary residence of the employee.”

From our review of the record, it appears that the County terminated Mr. Morris’

employment because it made an assumption about Mr. Morris’ primary residence based

solely on a mailing address he provided. The County further ignored Mr. Morris’

testimony that he did not live at the 345 Emma Road, Fayette County address, and

disregarded evidence he submitted concerning his residency because the evidence did not

comport with its guidelines regarding the types of documentation necessary to prove

residency in the County.

The investigation into Mr. Morris’ residency commenced after Mr. Morris

provided the 345 Emma Road, Fayette County address as the address to which he wanted

his 2014 W-2 mailed. The County clearly assumed from the information provided by Mr.

Morris that the Fayette County address was Mr. Morris’ residence. At the CSMB

hearing, Charles Wood, the Deputy Administrator of Shelby County Roads, Bridges, and

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Engineering testified concerning the County’s assumption, to-wit:

Q: Okay. Nobody said to him, “Write down where you live.” They said,

“Give me an address [so] I can get some tax information to you,” right?

A: I don’t know.

Q: You don’t know what was said?

A: No.

Q: So, we are making all kinds of assumptions that he told anybody that is

where he lived?

A: No, you are wrong.

Q: Okay. Tell me why I am wrong.

A: You are saying I witnessed and that they told him that. I was not there

to witness that, no. They gave me what I am showing you here --

Q: That is right.

A: -- and what he said where he lived or where he wanted his mailing

address.

Q: It’s where he said he wanted his mail to come to.

A: Right.

Q: And what we are getting at is this assumption that he told anybody at

any point that “that is where I live.” And he said, “That is where I can get

some mail.” Maybe he was staying with his girlfriend who lived there,

right?

A: That is what he later told me.

Q: And that doesn’t mean he is not a resident of Shelby County. He could

be a resident of Shelby County and get mail at his girlfriend’s house,

couldn’t he?

A: I understand that.

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Q: So, we can make lots of assumptions about where he lived, right?

A: Right.

Q: And that is what we did in this case, we made some assumptions, right?

You did. You made some assumptions --

A: I made an assumption that was his primary address, yes.

Q: That is right. And after that assumption had been made that he is

telling you by writing some numbers down that “that is my primary

address,” after that assumption was made, did you verify that he lived at

that address by any other independent source?

A: No, I did not.

Q: Did anybody within Shelby County verify that he lived at that address

through any independent source?

A: Did they go verify? No.

Q: I mean, did anybody try to pull a light bill or ask for a lease or do

anything to verify?

A: Yes, they did. Yes, we did. We asked for several documentations of

him.

Q: And did any documents support the fact that he lived at what you

assumed was his primary address?

A: No, sir, it did not.

Q: There wasn’t a single thing, other than the fact that he wrote that

address down on a piece of paper . . . right?

A: That is true.

Despite having no actual proof that Mr. Morris resided outside Shelby County, the

County terminated Mr. Morris’ employment based solely on a violation of the residency

policy.

The County justifies its decision to terminate Mr. Morris’ employment because he

failed to provide three documents from its “list of seven documents categories.” Because

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Mr. Morris did not provide these exact documents, the County contends that Mr. Morris

failed to prove that he was a resident of Shelby County. Thus, the County maintains that

termination of his employment was proper. While the County has an established

residency policy under Shelby County Government Policy No. 304, there is no specific

policy concerning what documents employees must provide to the County to prove

residency. At the CSMB hearing, Edward Bowden, the Human Resources Advisor for

the County, could not cite any County policy regarding the “list of seven documents

categories”:

Q: Do you know whether there is a policy number or some way we can

legally define within Shelby County how it is that you have got to have

these seven documents to be able to be -- three of these seven documents to

verify your employment? I mean, I am trying to figure out is there some

place I can go and see that, this is what is required?

A: I have no knowledge of that.

Mr. Morris testified at the CSMB hearing that he was unable to provide any of the

requested documents on the County’s list because he neither owned nor rented a house

because he lived with his aunt. In the absence of proof that the County has adopted an

actual policy or procedure concerning the specific documents employees must provide to

prove County residency, Mr. Morris cannot be required to provide specific documents to

show his residency. Turning to the record, to prove his residency in the County, Mr.

Morris provided the following proof: (1) his lease agreement for 6804 North Knoll,

Shelby County, Tennessee which lease was to become effective on February 1, 2015; (2)

a 2013 application for vehicle registration listing the 12466 Highway 64 address; (3) a

2013 W-2 tax form from a secondary employer bearing the 12466 Highway 64 address;

and (4) a receipt for a trailer dated March 14, 2014, showing the 12466 Highway 64

address. Mr. Morris also provided the County an affidavit from his aunt, wherein she

stated that Mr. Morris lived with her in 2014 at the 12611 Highway 64 address. Mr.

Morris also provided an affidavit from his girlfriend, wherein she stated that Mr. Morris

did not reside with her at the 345 Emma Road address in Fayette County. The County

rejected these documents because none of them purportedly “met the requirement Shelby

County ha[d] set forth for employees to prove compliance.” However, with no specific

policy adopted by the County concerning the documentation required to establish

residency, the County could not disregard the documents provided by Mr. Morris.

In addition to the foregoing documents, Mr. Morris also testified at length at the

CSMB hearing concerning his residency. He explained that he was born in Shelby

County, grew up in Shelby County, attended high school in Shelby County, and was

living in Shelby County when he began working for the Roads, Bridges, and Engineering

Department. Mr. Morris further explained that, in 2013, he lived at 12466 US Highway

64, a Shelby County address. He testified that, in 2014, he moved to his aunt’s house at

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12611 Highway 64, also a Shelby County address. He further testified that, as of January

20, 2015, he lived at the 12611 Highway 64 address. His aunt’s affidavit, supra, supports

this testimony. Mr. Morris explained that he provided his supervisor with the 345 Emma

Road, Oakland, Fayette County address to mail his W-2 because he was in the process of

moving out of his aunt’s house to the 6804 North Knoll address. Additionally, he

explained that the 345 Emma Road address was his girlfriend’s residence, and he

provided the lease agreement for that property, on which he was not listed as a lessee.

The CSMB reviewed the foregoing proof before concluding that the County “did

not meet the burden of proof for ‘cause’” when it terminated Mr. Morris’ employment.2

The CSMB further concluded that, “[a]lthough the County did not receive from Mr.

Morris three of their seven requested documents to validate his residency, the County did

not prove that Mr. Morris lived outside of Shelby County. The County was not open to

accept alternative documents presented as proof of residence.” The trial court affirmed

the CSMB when it concluded that

7. [t]he CSMB’s decision was based upon substantial and material

evidence. Specifically, the [c]ourt notes that Shelby County did elicit

testimony in its own case in chief supporting Mr. Morris’ contention that he

was a resident of Shelby County. Furthermore, Shelby County did not

present any contradictory evidence disputing the evidence that Mr. Morris

resided outside of Shelby County. Gary Morris, however, presented his

2

We note that, on appeal, the County argues that the CSMB erred when it shifted the burden to

the County to prove Mr. Morris’ Shelby County residency. Essentially, the County argues that it should

not have had the burden of proof, at the CSMB hearing, to show that Mr. Morris’ employment was

terminated for cause. However, in its appellate brief concerning this issue, the County fails to reference

any County policy or Tennessee law, which provides that it is the employee’s burden to prove that the

County did not have cause to terminate his or her employment. See Tenn. R. App. P. 27(a)(7). Appellee

cites Kirkwood v. Shelby County Government, No. W2005-00769-COA-R9-CV, 2006 WL 889184, at *4

(Tenn. Ct. App. Apr. 6, 2006), in response to the County’s argument. In Kirkwood, this Court explained

that

[“]The burden of proof is on the party having the affirmative of the issue, and the burden

of proof never shifts.[”] 11 Tenn. Jur., Evidence, § 49. In disciplinary proceedings, or

where the issue is whether the party charged has committed an illegal or improper act, the

burden is on the one making the charges and this rule applies where the charge is made

by an administrative body. Id.

Kirkwood, 2006 WL 889184, at *4; see also Case v. Shelby Cty. Civil Serv. Merit Bd., 98 S.W.3d 167,

175-76 (Tenn. Ct. App. 2002) (discussing that an employer bears the burden of demonstrating cause to

terminate an employee’s employment). Therefore, it appears that the CSMB properly placed the burden

on the County to prove that it had cause to terminate Mr. Morris’ employment. Because the County had

the burden to prove Mr. Morris’ termination of employment was “for cause,” the County also had the

burden of proving that the “cause” existed, i.e. that Mr. Morris did not reside in Shelby County.

Nonetheless, even if it were Mr. Morris’ burden, he clearly proved his residency, as discussed supra.

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own testimony, various documents, and the sworn affidavits of two people

attesting to his residency.

From our review, we agree with the trial court’s conclusion that the CSMB “had a

reasonably sound basis” for finding that termination of Mr. Morris’ employment was

improper. City of Memphis, 238 S.W.3d at 243 (citing McEwen, 173 S.W.3d at 820).

There is substantial and material evidence in the record to support the CSMB’s finding

that the County “did not meet the burden of proof for ‘cause’” when it terminated Mr.

Morris’ employment. In the first instance, the County terminated Mr. Morris’

employment simply because he requested that the County mail his 2014 W-2 to an

address in Fayette County. Mr. Morris testified that he had never lived in Fayette

County, and Mr. Wood admitted that the County never verified the Fayette County

address as Mr. Morris’ primary residence. These facts alone demonstrate that the County

did not meet its burden of proof for cause to terminate Mr. Morris’ employment.

Nonetheless, the County contends that termination of Mr. Morris’ employment was

proper because he did not comply with the “list of seven documents categories.” As

discussed above, the County provided no evidence that it actually adopted a policy or

procedure regarding specific documentation required to prove residency. As such, its

disregard of Mr. Morris’ evidence was improper. From the evidence Mr. Morris

provided, it is clear that Mr. Morris resided in Shelby County during the relevant time

period.

Still, the County alleges that Mr. Morris did not prove his residency for a sixteen-

day period of time, i.e. while he was in the process of moving into a new residence. At

the CSMB hearing, Mr. Bowden acknowledged that Mr. Morris was a Shelby County

resident prior to January 16, 2015, to-wit:

Q: Well, your testimony right now is you can attest that he was a resident

that had provided what was required. And so, if you are able to attest to

that, then tell the Board what it is he provided.

A: I don’t have knowledge of that. The only thing that I can attest is that

prior to January 16, January 15 he was a resident.

Q: Prior to -- prior to --

A: Employee of Shelby County.

Q: Prior to the fact that he wrote that handwritten notice with his

girlfriend’s address on it saying you could send him some mail over there,

he was a resident?

A: Prior to January 16 when I was brought on board, from my

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understanding, Mr. Morris was a resident.

Concerning the sixteen-day period, as discussed above, Mr. Morris provided the County

with a lease for his new residence. The lease began on February 1, 2015. So, the County

alleges that Mr. Morris did not prove his County residency from January 16, 2015

through February 1, 2015. However, based on his undisputed testimony, there is no proof

that Mr. Morris resided outside the County during this sixteen-day period. Rather, from

his testimony and the affidavits he provided, he resided with his aunt in Shelby County

until he took possession of the leased property. As such, there is substantial and material

proof that Mr. Morris was a resident of Shelby County during all of his County

employment, and the County had no cause to terminate his employment.3

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order. The case is remanded

for such further proceedings as may be necessary and are consistent with this opinion.

Costs of the appeal are assessed against the Appellant, Shelby County, Tennessee, for all

of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

3

We note that the County’s final argument is that the CSMB improperly considered Mr. Morris’

years of service and satisfactory work history when it reinstated him. While the CSMB decision states

that it considered “Mr. Morris’ twelve (12) years of service and his satisfactory work history,” it is clear

from the record that, prior to that consideration, the CSMB found that Mr. Morris was a resident of

Shelby County, and that the County failed to demonstrate he was not a resident. Therefore, the

dispositive issue had already been decided in Mr. Morris’ favor prior to the CSMB considering his work

history. Further, as found by the trial court, the County “did not demonstrate that [the] CSMB’s opinion

that Gary Morris was a good employee of many years in any way swayed or otherwise prejudiced or

tainted their ultimate decision.”

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