Brandon Copeland v. Tennessee Department of Correction

12/02/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 1, 2022

BRANDON COPELAND v.

TENNESSEE DEPARTMENT OF CORRECTION

Appeal from the Chancery Court for Davidson County

No. 21-0194-III Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2021-01557-COA-R3-CV

___________________________________

The appellant, a former Tennessee Department of Correction (“TDOC”) employee,

challenges the Tennessee Board of Appeals’ decision upholding his dismissal as an

employee due to actions allegedly constituting official misconduct and tampering with

evidence. The appellant requests that this Court overrule or modify the Tennessee Supreme

Court’s holding in Tenn. Dep’t of Corr. v. Pressley, 528 S.W.3d 506 (Tenn. 2017), which

this Court lacks authority to do. Although we conclude that the appellant has waived his

remaining two issues on appeal by failing to provide legal authority or argument, we further

conclude that the Tennessee Board of Appeals’ decision was supported by substantial and

material evidence. We therefore affirm the Davidson County Chancery Court’s final

judgment dismissing the appellant’s petition for judicial review with prejudice.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ARNOLD B.

GOLDIN and JEFFREY USMAN, JJ., joined.

Brandon Copeland, Crossville, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor

General; and Eugenie B. Whitesell, Senior Assistant Attorney General, for the appellee,

Tennessee Department of Correction.

OPINION

I. Factual and Procedural Background

Prior to his termination as an employee and the rise of this cause of action, the

petitioner, Brandon Copeland, had been a TDOC employee for seven years and three

months. At the time of his dismissal, Mr. Copeland was a Correctional Captain at Bledsoe

County Correctional Complex (“Bledsoe”), and he was classified as a preferred service

employee of the State of Tennessee.1

The incident that led to the termination of Mr. Copeland’s employment occurred on

June 20, 2020, and involved two correctional officers under his supervision. According to

findings made by TDOC Commissioner Tony Parker’s office, Correctional Officer Earnest

Zile and Correctional Officer Krisann Garmer had conducted a contraband search of a

particular inmate’s cell at Bledsoe.2 After the officers completed the search, Officer Zile

pushed the inmate, and an altercation between the two ensued. As a result of this “use of

force” incident, the Office of Investigations and Conduct (“OIC”) investigated the actions

of Officer Zile and Officer Garmer. During the investigation, Officer Zile and Officer

Garmer informed OIC, independently of one another during their respective interviews,

that Mr. Copeland had instructed them to change their declarations contained in their

written “use of force” statements.

According to Officer Garmer, Mr. Copeland ordered her to change her statement

and replace the phrase, “Officer Zile pushed” the inmate, with, “Officer Zile attempted to

cuff” the inmate.3 Commissioner Parker’s findings reflected that Officer Garmer had

1

The Tennessee Supreme Court has previously explained that the Tennessee Excellence, Accountability,

and Management Act of 2012 (the “TEAM Act”) “reformed Tennessee’s state employment personnel

system by establishing two separate and distinct employment categories under the umbrella of ‘state

service’: ‘executive service’ employees and ‘preferred service’ employees.” Pressley, 528 S.W.3d at 514.

Tennessee Code Annotated § 8-30-202(b) (2022), a provision of the TEAM Act, provides that an “employee

in the executive service is an employee at will and serves at the pleasure of the employee’s appointing

authority.” In contrast, a “preferred service employee” is an employee “who has successfully completed a

probationary period”; “may be dismissed, demoted, or suspended for cause”; and is “entitled to appeal a

dismissal, demotion, or suspension as provided in § 8-30-318.” Tenn. Code Ann. § 8-30-316 (a) & (f)

(2022). A preferred service employee may also be dismissed when the appointing authority determines that

“the good of the service will be served” by such dismissal. Tenn. Code Ann. § 8-30-316(b).

2

According to the testimony of Carrie Brock, Assistant Director of Human Resources for TDOC, she

handled the appeal “on behalf of” Commissioner Parker. Ms. Brock testified that a Step I appeal is an

“informal discussion between the employee and the person that issues the disciplinary action.” She

facilitated the discussion on behalf of Commissioner Parker and submitted to him a summary of the

information gathered from the process. Commissioner Parker reviewed the summary and decided to uphold

the disciplinary action against Mr. Copeland.

3

Given the inmate’s tangential role in the issues of this case, we will simply refer to him as “the inmate”

-2-

volunteered that her changed statement did not reflect accurate information and that the

document constituted a falsified report. Commissioner Parker also found that Officer Zile

had stated during his OIC interview that Mr. Copeland ordered him to change his statement

by adding the phrases, “became more verbally aggressive” and “became actively resistant,”

with reference to the inmate’s role in the altercation. Like Officer Garmer, Officer Zile

indicated that these additions were inaccurate. According to Commissioner Parker’s

findings, Officer Zile believed that Mr. Copeland had ordered him to falsify the report to

depict the inmate as more aggressive and “to cover for CO Zile’s loss of his temper.”

Officer Zile indicated that the first draft of his use of force report had been destroyed.

Following Officer Zile’s and Officer Garmer’s interviews, OIC broadened its investigation

to encompass Mr. Copeland’s actions.

Upon the conclusion of OIC’s investigation, Mr. Copeland received a letter of

dismissal from the acting warden of Bledsoe, Jonathan Higdon, on July 30, 2020. Acting

Warden Higdon informed Mr. Copeland that he was dismissed as an employee with TDOC

by reason of his violations of TDOC Administrative Policies and Procedures 302.08, “Code

of Conduct & Oath of Correction Department Employees” “in compliance with the Rules

of the Department of Human Resources, Chapter 1120-10.” Acting Warden Higdon’s

letter also reflected that OIC’s investigation had led to Mr. Copeland’s indictment by the

Bledsoe County Grand Jury (“the grand jury”) on four felony charges and his arrest the

previous day. As such, Acting Warden Higdon concluded that Mr. Copeland’s termination

of employment was necessary for TDOC to “operate safe and secure prisons.”

On August 5, 2020, Mr. Copeland filed a “Step I Appeal,” appealing his dismissal

to the TDOC Commissioner and seeking reinstatement of his employment. As referenced

above, Commissioner Parker affirmed Mr. Copeland’s dismissal in a letter dated August

18, 2020. Thereafter, Mr. Copeland instituted a “Step II Appeal” on August 31, 2020.

Commissioner of Human Resources Juan Williams denied Mr. Copeland’s Step II Appeal

in a written decision on September 17, 2020. Mr. Copeland subsequently filed a “Step III

Appeal” to the Tennessee Board of Appeals (“the Board”).

The Board conducted a hearing on January 8, 2021, considering testimony from

several witnesses, including Mr. Copeland and Mike Dunn, the OIC special agent who

investigated Mr. Copeland’s actions. Agent Dunn explained to the Board his investigative

process, details concerning his interviews with Officers Zile and Garmer, and the content

of his testimony before the grand jury that resulted in Mr. Copeland’s indictment. Sergeant

William Lewis, an employee of Bledsoe, testified that he did not recall hearing Mr.

Copeland tell Officers Zile and Garmer to alter their use of force statements to depict the

inmate as more aggressive. Nevertheless, Sergeant Lewis recalled that he had heard Mr.

Copeland instruct the officers to indicate in their statements that the least amount of force

possible had been used against the inmate. As a result, Officer Garmer “redid her use of

in this Opinion.

-3-

force” statement. In his defense, Mr. Copeland testified that he did not order Officers Zile

and Garmer to change their initial statements. Mr. Copeland also presented testimony of

Shawn Phillips, the warden of Bledsoe, who reported that Mr. Copeland had informed him

that “something wasn’t right” about Officer Zile’s use of force against the inmate.4

On January 11, 2021, the Board entered an order upholding TDOC’s disciplinary

action against Mr. Copeland. The Board found that Mr. Copeland had “ordered officers

under his supervision to reword reports to make it appear as though the inmate was the

aggressor, for the purpose of covering up the excessive use of force against an inmate.”

The Board further delineated that Mr. Copeland’s actions constituted violations of TDOC

Policy 302.08 and Tennessee Department of Human Resources Rule 1120-10-.03,

subsections “(10) Gross Misconduct,” “(11) Conduct unbecoming of an employee in state

service,” “(14) Falsification of an official document relating to or affecting employment,”

and “(15) Participation in any action that would in any way disrupt or disturb the normal

operation of the [ . . . ] department [ . . . ] or that would interfere with the ability of

management to manage.”

The Board concluded that Mr. Copeland failed to meet his burden of proof, referring

to Pressley, 528 S.W.3d 506, in which our Supreme Court held that the complainant bears

the burden to prove by a preponderance of the evidence that TDOC violated the law or

Department of Human Resources rules in terminating his employment. The Board

accordingly determined that termination of Mr. Copeland’s employment with TDOC was

an appropriate and necessary disciplinary action. On March 8, 2021, Mr. Copeland filed

in the Davidson County Chancery Court (“trial court”) a “Petition for Judicial Review of

Final Order of Administrative Order,” seeking reversal of the Board’s decision. On

November 29, 2021, the trial court entered a final order dismissing with prejudice Mr.

Copeland’s petition. Mr. Copeland timely appealed.

II. Issues Presented

Mr. Copeland has raised three issues on appeal, which we have restated slightly as

follows:

1. Whether the statutory scheme controlling the procedure for

disciplinary appeals, pursuant to Tennessee Code Annotated § 4-5-

322 and as interpreted by the Tennessee Supreme Court in Pressley,

528 S.W.3d 506, provides complainants with due process of law.

2. Whether placing the burden of proof on Mr. Copeland at the first

objective presentation of proof without a provision for switching the

4

The distinction between Warden Phillips’s and Acting Warden Higdon’s roles in managing Bledsoe is

unclear from our review of the record.

-4-

burden of proof and with abridged discovery, not contemplated in the

statutory scheme, placed upon him an impossible burden of proving a

negative.

3. Whether Agent Dunn’s testimony related to the “grand jury trial

outcome” was prejudicial, misleading, and irrelevant.

TDOC raises the following additional issue, slightly restated as follows:

4. Whether Mr. Copeland has waived review of the issues presented to

this Court by failing to file a brief that complies with Tennessee Rule

of Appellate Procedure 27.

III. Standard of Review

Mr. Copeland appeals the Board’s decision to uphold TDOC’s disciplinary actions

against him. “Under the TEAM Act, Board of Appeals’ decisions are subject to judicial

review in accordance with the Uniform Administrative Procedures Act (“UAPA”).”

Pressley, 528 S.W.3d at 512. The TEAM Act “provides a streamlined, three-step appeal

process for preferred service employees seeking to challenge a dismissal decision.” Vaulx

v. Tenn. Dep’t of Transp., No. M2020-00193-COA-R3-CV, 2021 WL 2156919, at *1

(Tenn. Ct. App. May 27, 2021). This Court has explained the appeals process under the

TEAM Act, elucidating:

A preferred service employee may initiate a Step I appeal by filing a

written complaint with the Commissioner of the employing agency. Tenn.

Code Ann. § 8-30-318(h)(1)(A). The Commissioner or his designee

investigates the complaint and shares all relevant information with the

employee. Id. After personally meeting with the employee, the

Commissioner issues a written decision. Id.

Dissatisfied employees may request a Step II review by the

Commissioner of Human Resources. Id. § 8-30-318(h)(1)(B)(i). The

employee must provide a written argument “setting out why the employee

believes the Step I decision was in error and ought to be overturned, reduced,

or amended.” Id. § 8-30-318(h)(1)(B)(ii). The Commissioner reviews the

complaint and the Step I decision and determines whether additional

investigation is necessary. Id. § 8-30-318(h)(1)(B)(i). Again, the employee

is entitled to review all documents and evidence considered by the

Commissioner. Id. After reviewing all the relevant evidence, the

Commissioner must provide the employee and the state agency with a written

decision. Id.

-5-

Either party may initiate a Step III appeal to the Board of Appeals. Id.

§ 8-30-318(h)(1)(C). A Step III review includes a formal hearing before

three members of the Board of Appeals. Id. § 8-30-318(h)(2). At the outset,

an ALJ [Administrative Law Judge] reviews the file to “determine whether

all previous procedural requirements were completed properly and in a

timely manner.” Id. § 8-30-318(h)(1)(C). If not, the ALJ must dismiss the

appeal. Id.

Step III hearings are conducted in accordance with the UAPA, as

modified by the TEAM Act. Id. An ALJ is present during the hearing to

assist the Board. Id. § 8-30-318(h)(2). The ALJ ensures that the proceedings

comply with the applicable law. Id. The ALJ also makes evidentiary

decisions, swears witnesses, and advises the Board on the applicable law. Id.

The ALJ may also decide questions of procedure. Id. But the Board decides

all factual issues and makes the ultimate decision. Id. No petitions for

reconsideration are allowed. Id. § 8-30-318(i)(7).

Id. at *2.

With respect to the standard of review for Board decisions, our High Court in

Pressley explained:

[T]his Court, as well as the trial and intermediate appellate courts, reviews

the Board’s decision under the narrowly defined standard of review

contained in the UAPA, Tenn. Code Ann. § 4-5-322(h) (2015 & Supp. 2016),

rather than under the broad standard of review used in other civil appeals,

Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256, 263-64 (Tenn. 2009).

Accordingly, pursuant to Tennessee Code Annotated section 4-5-322(h):

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

-6-

(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.

Tenn. Code Ann. § 4-5-322(h).[5] Applying this standard of review, a

reviewing court may reverse the Board’s decision only if one or more of the

five enumerated grounds for reversal are present. Id.; Davis, 278 S.W.3d at

264.

Pressley, 528 S.W.3d at 512. Moreover, “[n]o 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(i) (2022).

We recognize that Mr. Copeland is a pro se litigant and respect his decision to

proceed self-represented. With regard to self-represented litigants, this Court has

explained:

Pro se litigants who invoke the complex and sometimes technical

procedures of the courts assume a very heavy burden. Gray v. Stillman White

Co., 522 A.2d 737, 741 (R. I. 1987). Conducting a trial with a pro se litigant

who is unschooled in the intricacies of evidence and trial practice can be

difficult. Oko v. Rogers, 125 Ill. App. 3d 720, 81 Ill. Dec. 72, 75, 466 N.E.2d

658, 661 (1984). Nonetheless, trial courts are expected to appreciate and be

understanding of the difficulties encountered by a party who is embarking

into the maze of the judicial process with no experience or formal training.

Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). Although parties

proceeding without benefit of counsel are “entitled to fair and equal treatment by the

courts,” we “must not excuse pro se litigants from complying with the same substantive

and procedural rules that represented parties are expected to observe.” Hessmer v.

5

The General Assembly has amended Tennessee Code Annotated § 4-5-322(h)(5), “appli[cable] to

disciplinary actions taken or information first received on or after the effective date of” May 18, 2021.

Tenn. Pub. Acts, Ch. 461, § 6. The former version of the statute applies to the present case given that Mr.

Copeland received his letter of dismissal on July 30, 2020.

-7-

Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). In addition, this Court must “be

mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se

litigant’s adversary.” Id. Moreover, “[p]ro se litigants are not . . . entitled to shift the

burden of litigating their case to the courts.” See Chiozza v. Chiozza, 315 S.W.3d 482, 487

(Tenn. Ct. App. 2009) (quoting Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn.

Ct. App. 2000)).

IV. Compliance with Tennessee Rule of Appellate Procedure 27

As a threshold matter, we address TDOC’s postulate that Mr. Copeland’s brief fails

to comply with Tennessee Rule of Appellate Procedure 27(a), which provides in pertinent

part:

(a) Brief of the Appellant. The brief of the appellant shall contain under

appropriate headings and in the order here indicated:

(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically

arranged), statutes and other authorities cited, with references

to the pages in the brief where they are cited;

***

(6) A statement of facts, setting forth the facts relevant to the issues

presented for review with appropriate references to the record;

(7) An argument, which may be preceded by a summary of

argument, setting forth:

(A) the contentions of the appellant with respect to the

issues presented, and the reasons therefor, including the

reasons why the contentions require appellate relief,

with citations to the authorities and appropriate

references to the record (which may be quoted

verbatim) relied on; and

(B) for each issue, a concise statement of the applicable

standard of review (which may appear in the discussion

of the issue or under a separate heading placed before

the discussion of the issues)[.]

-8-

TDOC contends that Mr. Copeland’s brief lacks a table of contents, a table of authorities,

and a statement of facts, as required in subsections (1), (2), and (6). TDOC further posits

that Mr. Copeland’s brief lacks legal analysis and citation to authority as required by

subsection (7).

We recognize and respect the fact that Mr. Copeland is representing himself in this

appeal, and as a pro se appellant, he may have “little familiarity with the rules of this

Court.” See City of La Vergne v. LeQuire, No. M2016-00028-COA-R3-CV, 2016 WL

6124117, at *2 (Tenn. Ct. App. Oct. 19, 2016). For this reason, this Court has previously

stated that “[t]he courts give pro se litigants who are untrained in the law a certain amount

of leeway in drafting their pleadings and briefs.” Hessmer, 138 S.W.3d at 903.

Furthermore, courts are encouraged to “give effect to the substance, rather than the form

or terminology, of a pro se litigant’s papers.” Id. at 904. Nevertheless, “the courts must

also be mindful of the boundary between fairness to a pro se litigant and unfairness to the

pro se litigant’s adversary” and “must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected to observe.”

Id. at 903.

With these principles in mind, we agree with TDOC that Mr. Copeland’s brief fails

to comply with certain requirements of Rule 27. Mr. Copeland did not present a table of

contents or a table of authorities in his brief, and he has provided sparse legal authority and

argument. However, Mr. Copeland presents a factual background of the case, provides the

standard of review, enumerates the issues raised, and cites to the record. Although Mr.

Copeland presents a dearth of legal authority and argument, we do not find his brief to be

so deficient that he has waived the entirety of his appeal.

This Court may “in its discretion, suspend or relax the procedural rules in a given

case for good cause.” City of La Vergne, 2016 WL 6124117, at *2 (citing Tenn. R. App.

P. 2). In addition, “[t]he Tennessee Rules of Appellate Procedure should be construed to

afford all parties a hearing on the merits.” Paehler v. Union Planters Nat’l Bank, 971

S.W.2d 393, 397 (Tenn. Ct. App. 1997) (deciding the appeal on the merits despite

acknowledging that the appellant failed to comply with Rule 27); see also Tenn. R. App.

P. 1 (“These rules shall be construed to secure the just, speedy, and inexpensive

determination of every proceeding on its merits.”). Upon careful consideration and in light

of Mr. Copeland’s self-represented status, this Court will consider Mr. Copeland’s appeal

so as to give effect to the substance of his brief and decide the case on the merits. See City

of La Vergne, 2016 WL 6124117, at *2.

V. Alleged Violation of Constitutional Provisions Pursuant to

Tennessee Code Annotated § 4-5-322(h)(1)

In an attempt to seek reversal of his dismissal pursuant to Tennessee Code

Annotated § 4-5-322(h)(1), Mr. Copeland challenges the Tennessee Supreme Court’s

-9-

holdings in Pressley that “preferred service employees do not possess a property interest

in their continued employment with the State of Tennessee” and that the petitioning party,

“the ‘party [seeking] to change the present state of affairs’ with regard to his termination,”

bears “the ultimate burden of proof.” Pressley, 528 S.W.3d at 519, 523. Our High Court’s

decision in Pressley previously has been challenged by a former preferred service

employee in Vaulx, 2021 WL 2156919, at *1. In Vaulx, the former employee, like Mr.

Copeland, posited that requiring him to bear the burden of proof at his Step III hearing was

“unfair and possibly unconstitutional.” Id. at *2. This Court dismissed the former

employee’s argument, properly concluding that it had “no authority to overrule or modify

Supreme Court opinions.” Id. (quoting Bloodworth v. Stuart, 428 S.W.2d 786, 789 (Tenn.

1968)). We reaffirm this principle and likewise conclude that we lack authority to overrule

or modify the Tennessee Supreme Court’s holdings in Pressley. Mr. Copeland’s argument

on this point is therefore unavailing.

In a related issue, Mr. Copeland also requests that this Court consider:

Whether placing the burden of proof on the Employee at the first objective

presentation of proof without a provision for switching the burden of proof

and with abridged discovery, not contemplated in the statutory scheme,

places an impossible burden of proving a negative on the employee.

Mr. Copeland asserts that he carried the burden of proof “sufficient under the Pressley

opinion given that the following testimony as referenced to the record was produced and

at least required a switching of the burden of proof, which the Pressley Court did not

address.” We reject Mr. Copeland’s argument inasmuch as his second issue appears to

constitute another avenue to seek this Court’s reversal or modification of Pressley.

Moreover, Mr. Copeland does not provide sufficient legal authority or argument to support

his assertion that, as the petitioning party, he bore the “impossible burden of proving a

negative.” Mr. Copeland also fails to provide legal authority, argument, or any explanation

for his apparent qualms with the alleged “abridged discovery” available to him and the

absence of a statutory or procedural provision “for switching the burden of proof.”

Mr. Copeland states in his appellate brief that he submits the Davidson County

Chancery Court’s opinion in Vaulx v. Tenn. Dep’t of Transp. as “a brief of the matter.” We

discern that the below-quoted paragraph from the lower court in Vaulx is the only argument

that could be interpreted as relating to this issue. The lower court in Vaulx, as quoted by

Mr. Copeland, opined:

Although this Court is of the opinion that requiring a preferred service state

employee to bear the burden of disproving (or even merely the burden of

going forward to challenge) the proponent-employer’s charges violates

fundamental fairness, the Court has a clear duty to follow Pressley. In the

Court’s view, this fundamental unfairness is especially true where, as here,

- 10 -

the employee has to defend his/her employment in an administrative

proceeding where there is little or no opportunity to conduct discovery and

where the administrative proceeding is the employee’s only opportunity for

a de novo hearing. Here, this unfairness is further exacerbated by the

administrative tribunal’s decision to grant judgment for the employer without

requiring it to put on any proof whatsoever. In this context, summary

decisions in favor of the employer at the administrative level, where no

representative of the proponent-employer is even required to testify about the

truth, context, or seriousness of the proffered charges or have those charges

meaningfully reviewed by the finder of fact, should be disfavored. Having

no guidance from the appellate courts on this precise situation, however, the

Court is obligated to follow the broad holding of the Tennessee Supreme

Court in Pressley.

We emphasize that this Court rejected the former employee’s challenge of Pressley in

Vaulx and also found that the former employee had failed to present sufficient evidence to

meet his burden of proof during his Step III appeal. Vaulx, 2021 WL 2156919, at *2, 4.

Furthermore, Mr. Copeland fails to explain the significance of this quoted paragraph from

the trial court in Vaulx to the facts of his own case.

Other than the quoted paragraph from the trial court in Vaulx, Mr. Copeland has

provided no argument or explanation relative to his second issue on appeal. Inasmuch as

Mr. Copeland has failed to adequately and clearly present his second issue on appeal and

failed to present an argument with respect to this issue, we are constrained to find the issue

waived. See Sneed v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615

(Tenn. 2010) (“It is not the role of the courts . . . to research or construct a litigant’s case

or arguments for him . . . , and where a party fails to develop an argument in support of his

. . . contention or merely constructs a skeletal argument, the issue is waived.”).

VI. Alleged Prejudicial Testimony

Mr. Copeland objects to Agent Dunn’s testimony regarding “the outcome of the

Grand Jury trial” during the Step III hearing, describing it as “prejudicial, misleading,” and

irrelevant. Mr. Copeland, however, does not explain how Agent Dunn’s testimony was

prejudicial, misleading, or irrelevant, and does not refer to Agent Dunn’s statements about

the grand jury or his indictment in his appellate brief. Because Mr. Copeland provides no

more than an assertion with respect to the challenged testimony, we must also find this

issue waived. See Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000) (“[A]n issue is

waived where it is simply raised without any argument regarding its merits.”).

- 11 -

VII. Alleged Absence of Substantial and Material Evidence Pursuant to

Tennessee Code Annotated § 4-5-322(h)(5)

Although Mr. Copeland does not challenge the Board’s finding that he did not meet

his burden of proof in an enumerated issue statement, the bulk of his brief is a recitation of

the testimony elicited during the Step III hearing and an effort to demonstrate that the

Board’s findings and conclusions were unsupported by substantial and material evidence.

See Tenn. Code Ann. § 4-5-322(h)(5). Therefore, in order to “give effect to the substance”

of Mr. Copeland’s brief, see Hessmer, 138 S.W.3d at 904, and to decide this appeal on the

merits, we will review the evidence presented to the Board during the Step III hearing. In

doing so, we also note that TDOC addressed the issue on appeal without claiming to be

unfairly prejudiced by our consideration thereof. See City of La Vergne, 2016 WL

6124117, at *2 (finding good cause to decide the merits of the appeal when the deficiencies

in the appellant’s brief did not impede the Court’s ability to do so, the appellant’s argument

was clear, and the appellee did not claim that it would be unfairly prejudiced).

As referenced previously, the Tennessee Supreme Court in Pressley held that the

petitioning party under the TEAM Act is the “‘party [seeking] to change the present state

of affairs’ with regard to his termination” and is “assigned the ultimate burden of proof.”

Pressley, 528 S.W.3d 506, 523 (Tenn. 2017). Our High Court further instructed that the

burden of proof for the petitioning party was by a preponderance of the evidence. Id. at

522 (citing Tenn. Comp. R. & Regs. 1360-04-01-.02(7)). As the petitioner, Mr. Copeland

bore the burden of proving by a preponderance of the evidence that TDOC violated a “law,

rule, or policy” in terminating his employment. See Tenn. Code Ann. § 8-30-318(h)(1)(c)

(2016) (“If the procedural requirements have been met, the board of appeals shall conduct

proceedings in accordance with the Uniform Administrative Procedures Act, compiled in

title 4, chapter 5, as modified herein, to determine if the law, rule, or policy specified in the

complaint was violated.”). Mr. Copeland contends that he carried his burden of proof given

the testimony presented during the Board hearing.

According to Mr. Copeland, Warden Phillips testified that Mr. Copeland had

reported to him that he could not see what happened inside the inmate’s cell due to the

angle of the camera but that “something did not look right” about Officer Zile’s use of

force. In addition, Assistant Director of Human Resources, Carrie Brock, testified that

Warden Phillips had indicated that he had “issues with the OIC report” during the Step I

appeal. In addition, Mr. Copeland asserts that Sergeant Lewis testified that Mr. Copeland

did not influence Officers Zile and Garmer to change their statements and that he did not

witness him do anything against policy and procedure.

According to Mr. Copeland, Agent Dunn articulated that when an officer is

involved in a “use of force” incident, the officer completes “an accident injury form” with

medical staff before filling out the “use of force” statement with the supervisor. Agent

Dunn testified that the accident injury forms completed by Officers Zile and Garmer also

- 12 -

had depicted the inmate as the aggressor. According to Mr. Copeland, this fact indicates

that Officers Zile and Garmer had already depicted the inmate as the aggressor in their

accident injury forms prior to completing their “use of force” statements approved by him.

In addition, Mr. Copeland points out that Agent Dunn testified that it was possible that Mr.

Copeland had neglected to view the video from the correctly angled camera by mistake

and that Agent Dunn previously had been involved in cases when employees were

wrongfully terminated. Mr. Copeland notes that Agent Dunn explained that his

investigative findings were predicated upon the statements made by the officers and their

credibility. However, as Mr. Copeland asserts, Agent Dunn testified also that one of the

officers was later arrested and dismissed from employment with TDOC for filing a false

police report.

In his brief on appeal, Mr. Copeland reflects on his own testimony, stating that he

had followed “policy and post orders by placing the inmate on Pending Investigation and

turning the matter over to the Internal Affairs office.” He denied committing any criminal

acts and insisted that he would have sent Officer Zile home immediately and “sent a

different email” if he had seen the video from the correctly angled camera.

Upon our review of the record, we agree with the trial court that the Board’s decision

to uphold Mr. Copeland’s dismissal was predicated on substantial and material evidence.

This Court has previously detailed the standard by which it reviews the Board’s decision

for substantial and material evidence, stating:

“In determining the substantiality of the evidence, [we] take into account

whatever in the record fairly detracts from its weight,” but we do “not

substitute [our] judgment for that of the agency as to the weight of the

evidence on questions of fact.” Tenn. Code Ann. § 4-5-322(h)(5)(A)(ii).

The substantial and material evidence standard “requires something

less than a preponderance of the evidence, but more than a scintilla or

glimmer.” Wayne Cnty. v. Tenn. Solid Waste Disposal Control Bd., 756

S.W.2d 274, 280 (Tenn. Ct. App. 1988) (citations omitted). The standard

does not justify reversal simply because the evidence could support another

result. Martin v. Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001).

Instead the decision should be upheld so long as the administrative record

“furnishes a reasonably sound factual basis for the decision being reviewed.”

City of Memphis v. Civ. Serv. Comm’n, 216 S.W.3d 311, 317 (Tenn. 2007)

(quoting Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d

106, 111 (Tenn. Ct. App. 1993)).

Davis v. Tenn. Bd. of Appeals, No. M2020-01255-COA-R3-CV, 2022 WL 6920364, at *4

(Tenn. Ct. App. Oct. 12, 2022) (emphasis added).

- 13 -

Concerning Warden Phillips’s testimony, we agree with the trial court that his

testimony favorable to Mr. Copeland’s position does not outweigh the testimony of Agent

Dunn. Although Warden Phillips may have disagreed with the OIC’s investigative findings

and testified that Mr. Copeland had informed him that “something wasn’t right” with

Officer Zile’s conduct at the time of the incident, this testimony does not detract from or

outweigh Agent Dunn’s testimony that Officer Zile and Officer Garmer, independently of

one another, informed him that Mr. Copeland had ordered them to change their use of force

statements so as to minimize Officer Zile’s culpability. Agent Dunn further opined that he

believed Mr. Copeland had been deceptive during his interview with OIC and that it was

unbelievable that a correctional captain with Mr. Copeland’s experience would neglect to

view the other video from the correctly angled camera, contradicting Mr. Copeland’s

assertion during the interview that he had been unable to witness the altercation due to the

camera angle. Agent Dunn also informed the Board that he had testified before the grand

jury and that the grand jury had indicted Mr. Copeland for his actions at Bledsoe on the

day of the altercation. During the hearing, the Board members found Agent Dunn “very

convincing,” “compelling,” and “credible.”

Although the Board did not explicitly make a credibility determination in its written

order, its findings of fact and conclusions of law imply that it credited Agent Dunn’s

testimony over Mr. Copeland’s. See Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729,

733-34 (Tenn. 2002) (“[T]he trial court’s findings with respect to credibility and the weight

of the evidence . . . generally may be inferred from the manner in which the trial court

resolves conflicts in the testimony and decides the case.”). We afford great weight to the

Board’s credibility determinations given that it was the body that heard testimony. See

Pruitt v. City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542, at *7

(Tenn. Ct. App. Aug. 24, 2005) (concluding that the reviewing commission’s credibility

determinations should be “given great weight by any reviewing court”).

Mr. Copeland also proffered Sergeant Lewis as a purportedly favorable witness.

Although Sergeant Lewis testified that he had not heard Mr. Copeland tell Officers Zile

and Garmer to change their statements to depict the inmate as more aggressive, he did

indicate that had heard Mr. Copeland tell “them to put in [their use of force statements]

that the least amount of force necessary was taken and to add it to their -- .”6 Sergeant

Lewis also related that Officer Garmer “redid” her “use of force” statement after Mr.

Copeland told her to add that the “least amount of force possible was used” against the

inmate. Although Sergeant Lewis reported that he did not witness Mr. Copeland “do

anything against policy or procedure,” Sergeant Lewis’s interpretation of Mr. Copeland’s

actions provides little support for Mr. Copeland’s position given that Sergeant Lewis also

substantiated Agent Dunn’s finding that Mr. Copeland had ordered the officers to change

their statements. Sergeant Lewis’s testimony supported the Board’s finding that Mr.

Copeland had ordered the officers to reword their statements.

6

Sergeant Lewis did not finish this sentence during the hearing.

- 14 -

Upon thorough review of the record and testimony presented before the Board, we

agree with the Board’s conclusion that TDOC had cause to terminate Mr. Copeland and

conclude that the Board’s decision to uphold his dismissal from employment was supported

by substantial and material evidence. We therefore affirm the trial court’s order dismissing

Mr. Copeland’s petition for judicial review with prejudice.

VIII. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court dismissing with

prejudice Mr. Copeland’s petition. We remand this case for collection of costs below.

Costs on appeal are taxed to the appellant, Brandon Copeland.

s/ Thomas R. Frierson, II _____________

THOMAS R. FRIERSON, II, JUDGE

- 15 -