Brandon Copeland v. Tennessee Department of Correction ( 2022 )

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.
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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
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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.
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
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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,
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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.”).
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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
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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).
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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.
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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
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