Buddy Davis v. Tennessee Board of Appeals ( 2022 )

10/12/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 7, 2021 Session
BUDDY DAVIS v. TENNESSEE BOARD OF APPEALS
Appeal from the Chancery Court for Davidson County
No. 19-1183-IV Russell T. Perkins, Chancellor
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No. M2020-01255-COA-R3-CV
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A preferred service employee appealed the termination of his employment. After failing
to obtain relief at the Step I and Step II reviews, the employee requested a Step III hearing
before the Tennessee Board of Appeals. The Board determined that the employee engaged
in conduct unbecoming of an employee in state service but termination was too harsh a
punishment. So it modified the employee’s discipline to a one-step demotion and
recommended that he be transferred. The employee sought judicial review of the Board’s
decision. The chancery court reversed, finding that the decision to demote the employee
was not supported by substantial and material evidence. We reverse the chancery court
and affirm the decision of the Board.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT
and JOHN W. MCCLARTY, JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter, Andrée Sophia Blumstein, Solicitor
General, Colleen E. Mallea, Assistant Attorney General, and Rachel A. Newton, Assistant
Attorney General, for the appellant, Tennessee Board of Appeals.
Mathew R. Zenner, Brentwood, Tennessee, for the appellee, Buddy Davis.
OPINION
I.
A.
Buddy Davis is a preferred service employee with over twenty-five years of service
with the Tennessee Department of Correction (“TDOC”). In early 2019, he served as a
Correctional Unit Manager at the Bledsoe County Correctional Complex. In that role, he
was responsible for the correctional officers assigned to his unit and the safety and security
of the inmates within the unit. Each unit included multiple pods where inmates were
housed.
One morning a nurse informed a pod officer, James Olson, that one of the inmates
needed to be moved to suicide watch. Placing an inmate on suicide watch meant
transferring the inmate to another cell where he could be monitored. Officer Olson and
other correctional officers, including Correctional Officer Justin McDonald, moved the
inmate to a suicide-watch cell. But, in doing so, they used force. TDOC policy required
pre-authorization for use of force during such a move. If force was used without pre-
authorization, policy required officers to immediately report the use of force to their
supervisor, who was Mr. Davis.
The next day, TDOC opened an investigation into the unreported use of force. The
investigation included reviewing video footage of the incident, questioning Mr. Davis and
the officers involved in the move, and obtaining written statements. The investigation
ultimately determined that the force used during the transfer was appropriate, but not
properly reported. So the warden started a disciplinary action against the officers involved
in moving the inmate.
Several days later, one of the officers involved committed suicide and new
information surfaced, leading TDOC to reopen its investigation. Two new investigators
interviewed Mr. Davis. According to the investigator in charge, Mr. Davis maintained that
he only learned of the move of the inmate after the fact. But, when Mr. Davis was
presented with text messages from the deceased correctional officer1 suggesting that
Mr. Davis had advance notice of the move, Mr. Davis became emotional. At that point,
Mr. Davis conceded that it was “possible” he knew about the impending move of the inmate
and that he may have ordered the inmate moved to the suicide-watch cell. The investigator
in charge characterized Mr. Davis as uncooperative with the investigation at first, only
becoming cooperative after seeing the text messages. The written investigative report
concluded:
1
The text messages were directed to another correctional officer involved in the move of the
inmate.
2
Davis was very deceptive at first regarding any knowledge of the use of force
and at one point asking [another investigator] what is a use of force? The
written statements of all involved show Davis had knowledge of the use of
force and [the deceased officer’s] text message confirms Davis knew and
ordered the officers to transfer [the inmate] to a suicide watch cell.
After receiving a copy of the report, the warden terminated Mr. Davis’s
employment. The termination letter cited multiple grounds for discipline, including that
Mr. Davis’s “untruthfulness interfered with the investigative process and compromised the
integrity of the internal affairs investigation.”2
B.
Mr. Davis appealed his termination through the procedure provided for in the
Tennessee Excellence, Accountability, and Management or TEAM Act. See Tenn. Code
Ann. § 8-30-318(h) (Supp. 2021). “The TEAM Act’s appeal procedure is a three-step
process.” Tenn. Dep’t of Corr. v. Pressley, 528 S.W.3d 506, 520 (Tenn. 2017).
Mr. Davis’s termination was upheld at both Step I and Step II. So Mr. Davis requested a
Step III appeal before the Tennessee Board of Appeals. See Tenn. Code Ann. §§ 8-30-
108(f) (2016); -318(h)(1)(C).
The Board conducted a hearing, which revealed varying accounts of the transfer of
the inmate to suicide watch. Mr. Davis recounted his memories of the events surrounding
the move. The inmate was moved to the suicide-watch cell at approximately 10:00 a.m.
Mr. Davis conceded that he would have been in the unit around that time. But he testified
that he did not learn of the move until Officer McDonald told him about it sometime around
2:00 p.m. or later that day. Officer McDonald reported that the inmate refused to “cuff up”
at first but then the move occurred without any problems. Mr. Davis testified that he first
learned that the move involved the use of force the following day when a captain asked
him about the incident. Mr. Davis denied that Officer McDonald sought authorization to
use force prior to the move and that Officer McDonald reported the use of force following
the move.
Officer McDonald offered contradicting testimony. Officer McDonald testified that
he was enlisted to assist with the inmate move by Officer Olson. After speaking with
Officer Olson, Officer McDonald went to the unit management office to speak with
Mr. Davis. Officer McDonald explained that he wanted to make sure that Mr. Davis was
2
Another factor in Mr. Davis’s termination was a social media post related to the suicide of the
correctional officer. The warden believed the post violated TDOC policy. But at the Step II appeal, the
Tennessee Department of Human Resources determined that Mr. Davis’s post did not violate TDOC policy.
So the Board did not consider it as a basis for termination in the Step III appeal.
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aware of the situation and agreed that the inmate needed to be moved. He also asked
Mr. Davis about what should be done if the inmate refused to take cuffs. Officer McDonald
claimed that Mr. Davis told him that “the inmate had to move regardless” and to “do what
I needed to do.”
The inmate move did not go well. As Officer McDonald’s question to Mr. Davis
seemingly predicted, the inmate refused to “cuff up.” Instead the inmate attempted to cut
his wrists with a belt buckle. So Officer McDonald and other officers entered the cell.
Officer McDonald grabbed the inmate’s upper body and put the inmate’s hands behind his
back. The other officers held the inmate’s torso and feet. Together they lifted the inmate
over their heads and carried him to the suicide-watch cell. During this process, Officer
McDonald made a call over the radio to a sergeant because a taser might be needed.
After the move, Officer McDonald returned to the unit management office. He
asked to speak with Mr. Davis alone in his office. During that private meeting, Officer
McDonald testified that he went over the details of the move and asked Mr. Davis whether
there had been a use of force that needed to be reported. According to Officer McDonald,
Mr. Davis asked whether anyone was injured or if there were any marks. After Officer
McDonald replied in the negative, Mr. Davis told him not to worry about it.
Testimony revealed that other personnel were in the unit management office that
day. One was Sergeant Nicole Brooks. Sergeant Brooks was filling in as the unit’s clerical
officer. Her responsibilities included entering cell bed assignments into the computer.
Before the move, she answered a call from Officer Olson. She placed the call on speaker
and heard Officer Olson report that the nurse had told him to put the inmate on suicide
watch. According to Sergeant Brooks, Mr. Davis was in the room standing at the count
board, which had the inmates’ names and TDOC numbers on magnetic strips that were
placed by cell numbers. Upon hearing the call, Mr. Davis grabbed a magnet and said “I
guess we’re going to move [the inmate] from 204 to 101,” which was the suicide-watch
cell. Sergeant Brooks testified that Officer McDonald was standing in the doorway at the
time. Sergeant Brooks thought Mr. Davis made the statement so that she could enter the
move into the computer and so that Officer McDonald could make the move.
Sergeant Brooks did not participate in moving the inmate, but she learned about it
soon after. Approximately 10 minutes after the move, Officer McDonald returned to the
unit management office and asked Mr. Davis if he could speak with him. Sergeant Brooks
recalled that this took place well before 2:00 p.m. Officer McDonald went with Mr. Davis
to his office, which was a couple of doors down. Although Sergeant Brooks was not in the
room, right after the two men met, Officer McDonald shared the details of the move with
Sergeant Brooks.
Officer Olson corroborated Sergeant Brooks’s testimony about calling into the unit
management office prior to the move of the inmate. He called in to request escorts to assist
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him with moving the inmate. But Officer Olson did not speak with Mr. Davis during the
call, and he did not communicate with Mr. Davis after the move. When asked why he did
not report the use of force to Mr. Davis after the move, Officer Olson explained that he
assumed that the sergeant with the taser who Officer McDonald summoned for backup
would make the report.
Based on the testimony, the Board found that Mr. Davis was not aware of the use of
force during the inmate’s transfer to the suicide-watch cell. It determined that the
correctional officers involved in the move violated the use of force policy by not requesting
and obtaining Mr. Davis’s prior approval for the use of force. Although Officer McDonald
testified that he requested authorization for the use of force from Mr. Davis and advised
him of the use of force after the fact, the Board considered his credibility “highly
questionable” because Officer McDonald had been previously disciplined for the excessive
use of force. The Board reasoned that the desire to avoid disciplinary action would
motivate both Officer Olson and Officer McDonald to make false claims about Mr. Davis’s
knowledge of the use of force. Officer McDonald would have extra motivation because
additional discipline involving the use of force could lead to his termination.
Still, the Board determined that Mr. Davis violated state rules and regulations by
engaging in conduct unbecoming of an employee in state service. See Tenn. Comp. R. &
Regs. 1120-10-.03(11) (2019). It noted that Mr. Davis had maintained during the
investigation that he was unaware of the specific details of the inmate’s move and that he
did not have any discussions with Officer McDonald before the move. The Board found
that Mr. Davis’s “deceptiveness and lack of candor hindered the investigation and
undermined [his] credibility and ability as a leader in the TDOC system.” But the Board
concluded that termination was inappropriate because Mr. Davis was an employee of
twenty-five years with no prior disciplinary actions. Instead, the Board ordered a one-step
demotion. It also recommended that TDOC transfer him to another facility.
C.
Mr. Davis sought judicial review of the Board’s decision in chancery court. He
argued the Board’s factual findings were inconsistent because of the adverse credibility
determinations made against Officers McDonald and Olson. He also contended that the
finding that he lacked candor or gave inconsistent statements in the investigation was not
supported by substantial and material evidence. During the interview conducted as part of
the investigation, Mr. Davis only conceded that he did not remember having discussions
with Officer McDonald before the move and that it was possible such discussions could
have taken place. And the Board exceeded its statutory authority when it recommended
that TDOC transfer him.
The chancery court agreed that the Board’s decision was not supported by
substantial and material evidence and reinstated Mr. Davis to his previous position. The
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court found that Mr. Davis’s statements could be understood as being consistent. There
were two different aspects of the inmate’s transfer that “could potentially give rise to a
faulty appearance of discrepancy in Mr. Davis’[s] statements and testimony.” The first
aspect was whether notification of the inmate move came before it occurred as per protocol.
According to the court, the record reflected that Mr. Davis was consistent in his testimony
that he was not informed of the inmate’s move until after the fact, at approximately 2:00
p.m. The second aspect was the distinction between going on suicide watch and the actual
move. Mr. Davis testified that he was aware that the inmate was “going on suicide watch
at some point.” But the court reasoned, “In a prison setting, knowledge that an inmate is
going to go on suicide watch is different than being notified of the actual move prior to it
occurring pursuant to suicide watch protocol.”
As for his interview as part of the reopened investigation, the court noted that it was
at a point after Mr. Davis became “emotionally distraught” that he stated that “it’s possible”
that he spoke with Officer McDonald before the inmate’s move. But the investigative
report added that Mr. Davis “said so much was going on, he didn’t remember at first.”
II.
A.
The Board’s decision is “subject to judicial review in accordance with the Uniform
Administrative Procedures Act.” Tenn. Code Ann. § 8-30-318(j). Trial and appellate
courts use the same standard of review. Pressley, 528 S.W.3d at 512. We will only reverse
or modify the Board’s 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) (A) . . . [U]nsupported by evidence that is both substantial and material
in the light of the entire record.
Tenn. Code Ann. § 4-5-322(h) (2021); Pressley, 528 S.W.3d at 512. “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).
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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)).
On appeal, the Board contends that substantial and material evidence supports its
final decision that Mr. Davis was deceptive and not candid in his interviews about the
inmate transfer. We agree. Mr. Davis denied being aware of the move of the inmate before
it occurred, claiming he was not informed until the afternoon. The second investigative
report indicates that Mr. Davis initially denied informing Sergeant Brooks about the move
of the inmate before it took place. Sergeant Brooks’s testimony refuted that assertion. And
after being confronted with the text messages, the investigative report reflects that
Mr. Davis recanted his earlier statement and “then stated that he may have told Sgt. Brooks
that [the inmate] was going to go on suicide watch.”
Sergeant Brooks also testified that Mr. Davis was standing nearby when she took
the call from Officer Olson about the move. At that point, according to Sergeant Brooks’s
testimony, Mr. Davis said, “I guess we’re going to move [the inmate] from 204 to 101.”
She testified that Officer McDonald was in the doorway of the unit management office at
the time.
In trying to bring some consistency to Mr. Davis’s contradictory statements, the
chancery court distinguished between the knowledge of an inmate going on suicide watch
and the knowledge of the transfer of the inmate to a suicide-watch cell. But the testimony
before the Board established that going on suicide watch meant that the inmate was moving
to a cell where he could be watched and monitored. Mr. Davis’s reaction to Officer Olson’s
call, which Sergeant Brooks recounted, indicates as much. Regular cells did not have video
cameras in the cell. The suicide-watch cell permitted the necessary monitoring.
In addition to the testimony of Sergeant Brooks, there was also testimony regarding
the open radio calls made by the officers carrying out the transfer of the inmate. The
officers would have called to request the opening of the inmate’s cell door and for
additional assistance from the sergeant with the taser. As a unit manager, Mr. Davis would
have had a radio on him. Yet, he maintained that he was unaware of the move until the
afternoon.
Mr. Davis contends that the Board’s decision was nevertheless arbitrary and
capricious because the Board’s findings of fact are contradictory. While this argument
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overlaps with the question of whether the Board’s decision is supported by substantial and
material evidence, the inquiry is distinct. See id. at 317. “An arbitrary [or capricious]
decision is one that is not based on any course of reasoning or exercise of judgment, or one
that disregards the facts or circumstances of the case without some basis that would lead a
reasonable person to reach the same conclusion.” Id. at 316 (alteration in original) (quoting
Jackson Mobilphone Co., 876 S.W.2d at 111).
Mr. Davis asserts that the Board acted arbitrarily and capriciously when it found
both that he was not aware of the use of force by the officers and that he acted deceptively
and lacked candor during the investigation. But these findings are not inconsistent. The
Board reasonably could find that Mr. Davis did not know about the use of force during the
inmate’s transfer, yet acted deceptively during the subsequent investigation by not
disclosing that he was aware that the transfer was taking place.
B.
Mr. Davis raises his own issue on appeal concerning the Board’s decision. He
contends that the Board exceeded its statutory authority when it recommended that TDOC
transfer him to another facility. The TEAM Act provides, “[i]f the employee is successful
in obtaining reinstatement to a position from which the employee has been terminated, the
employee shall be reinstated to a position in the county in which the employee was
employed at the time of termination.” Tenn. Code Ann. § 8-30-318(l).
But Mr. Davis was not “successful in obtaining reinstatement to a position from
which [he was] terminated.” Id. The Board vacated his termination but demoted him one
rank, which was within its authority. See Tenn. Dep’t of Children’s Servs. v. James, No.
M2019-00070-COA-R3-CV, 2020 WL 1492863, at *4 (Tenn. Ct. App. Mar. 25, 2020)
(“[Tennessee Rules and Regulations 1120-11-.04] grants the Board the ‘full authority to
overturn, reduce, or amend the disciplinary action.’” (citation omitted)). So Mr. Davis was
not entitled to reinstatement “to a position in the county in which [he] was employed.” See
Tenn. Code Ann. § 8-30-318(l).
III.
Substantial and material evidence supports the Board’s decision to demote
Mr. Davis. And the Board acted within its statutory authority when it recommended his
transfer to another facility. So we reverse the chancery court and affirm the decision of the
Board.
s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE
8