WPC 2 ZB0_JHP LaserJet 8000 Series PSZ\  PPX0Í ÍX0Í ÍҫZ\  PP("  Z6Times New Roman RegularPZ\  PP("  Z6Times New Roman Regularu\  PP("  Z6Times New Roman Regular2PP,OAZ"Arial RegularXZ2PXP,OAZ"Arial RegularX[\  PP("  Z6Times New Roman Regularu\  PP("  Z6Times New Roman Regular[\  PP("  Z6Times New Roman Regularu\  P P("  Z6Times New Roman Regular[\  P P("  Z6Times New Roman RegularXN\  P XP("  Z6Times New Roman RegularXXN\  P XP("  Z6Times New Roman RegularXXN\  P XP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularXXN\  PXP("  Z6Times New Roman RegularX23|xX8Í ÍX8Í Í X  A'Legal @-  -@#P#  #Z\  PP##u\  PP#dddd 1 dddd 1 #!` 8` 8#2PP# FILED#XZ2PXP# November 30, 1999 Cecil Crowson, Jr. Appellate Court Clerk # D IN THE COURT OF APPEALS OF TENNESSEE D&AT NASHVILLE ă #[\  PP# DAVID E. KELLY,hhh) ) Plaintiff/Appellant,) )pppDavidson Chancery VS.` ` ` hhh)pppNo. 98458II ) THE TENNESSEE CIVIL SERVICE) COMMISSION andhhh)pppAppeal No. THE TENNESSEE DEPARTMENT)pppM199900168COAR3CV OF LABOR,hhh) ) Defendants/Appellees.) `DAPPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY 8D"AT NASHVILLE, TENNESSEE V DTHE HONORABLE CAROL L. McCOY, CHANCELLOR For the Plaintiff/Appellant:For the Defendants/Appellees: Frank J. ScanlonhhhpppPaul G. Summers Watkins, McGugin, McNeilly & RowanpppAttorney General and Reporter Nashville, Tennessee William J. Marett, Jr. Assistant Attorney General D #u\  PP#AFFIRMED AND REMANDED#[\  PP# ă WILLIAM C. KOCH, JR., JUDGE   ЊD(#u\  P P# O P I N I O N ă #[\  P P#This appeal involves the twoday suspension of an employee of the Tennessee Department of Labor. After the Tennessee Civil Service Commission upheld the suspension, the employee filed a petition for judicial review in the Chancery Court for Davidson County challenging the factual basis of the Commissions decision and asserting that the Department acted arbitrarily and capriciously. The trial court, sitting without a jury, affirmed the suspension. On this appeal, the employee admits violating departmental policy but asserts that he should have received less serious discipline or no discipline at all. We affirm the trial courts decision upholding the employees twoday suspension. D. I. ă David E. Kelly has worked for the State of Tennessee for approximately twenty years, the last eleven with the Department of Labor. He served as the Departments director of management systems until 1993 when he was demoted for poor job performance. XX #XN\  P XP#Ѝ#XN\  P XP#Mr. Kelly believed that he was demoted for political reasons but chose not to contest the demotion. Mr. Kelly continued to work as one of the Departments seven systems analysts and was assigned to the Division of Workers Compensation. In addition to his responsibilities to the Division of Workers Compensation, Mr. Kelly also served as the Departments security administrator and was responsible for controlling access to all of the Departments mainframe computers. Mr. Kellys performance evaluations were generally good following his demotion. However, three incidents occurred between late 1994 and mid1995 that caused the Department to discipline him. The first incident involved Mr. Kellys reluctance to assist newer systems analysts XX #XN\  P XP#Ѝ#XN\  PXP#Mr. Kelly did not have a high regard for his fellow systems analysts. He viewed them as trying to take over because the Department was without a director of management systems. Because he believed his coworkers were picking on him, he did not see any reason why he should show them things that he had figured out on his own. in gaining access to the Departments mainframe computers even though the Commissioner had directed the systems analysts to cooperate with each other. Despite repeated requests between December 1994 and July 1995, Mr. Kelly declined to assist one of the Departments newer analysts gain needed access to the computer. Mr. Kelly later explained his conduct by stating that he was totally frustrated with them badgering XX #XN\  PXP#Ѝ#XN\  PXP#Mr. Kelly explained that this badgering consisted of shooting all these memos, running to the new commissioner who knew nothing about computers or state government, [and] complaining to him about how I am not doing my job, when it was their job and they had the access. me to do stuff that was not my job to do. The second incident reflecting on Mr. Kellys job performance involved his delay in complying with the Departments human resources directors instructions to clear the hallway near his office. In late 1994, the director instructed Mr. Kelly to clear the hallway of equipment and boxes that had accumulated on the floor, the windowsills, and top of the filing cabinets in violation of the fire code and the Americans with Disabilities Act. By June 1995, Mr. Kelly had removed the items from the floor but had not removed the items from the filing cabinets or windowsills. Mr. Kelly told the director that he would remove the remaining items as soon as he found space and eventually completed the task in September 1995. The third incident involved Mr. Kellys unapproved attendance at a fourday educational seminar in July 1995. Mr. Kelly did not notify his superiors that he was attending the seminar and did not obtain prior approval as required by the Departments policy. Mr. Kelly later explained that he forgot to follow departmental procedures for obtaining advance approval for training but also stated that he had not attended many seminars because the Departments human resources director gave me a hassle anytime I asked for a class. Mr. Kelly left the course early without completing it because he was needed at the Department. He later apologized to the acting director of management systems, saying that he didnt know it was going to be this big a deal. . . . I just forgot to fill out the paperwork. Im sorry. If it bothers you that much Ill pay for the course myself. On July 19, 1995, the acting director of management systems asked the Commissioner to suspend Mr. Kelly for three days for violating the Departments policies and for failing to carry out direct instructions. On July 31, 1995, the Commissioner suspended Mr. Kelly from work for three days after taking the three incidents and Mr. Kellys earlier demotion into consideration. Following an informal hearing presided over by the Departments legal director, the Commissioner shortened Mr. Kellys suspension to two days. Mr. Kelly pursued a Step V grievance to the Tennessee Civil Service Commission. Following a hearing, an administrative law judge employed by the Secretary of State concluded that Mr. Kellys 1993 demotion should not have been considered and that Mr. Kellys acts did not constitute insubordination. According, the administrative law judge reduced Mr. Kellys twoday suspension to an oral warning and awarded him partial attorneys fees. At the Departments request, the Civil Service Commission reviewed the administrative law judges interim order. While it adopted the administrative law judges findings of fact, the Commission concluded that the evidence established insubordination and violation of departmental policies. Accordingly, the Commission reinstated Mr. Kellys twoday suspension and vacated the award of attorneys fees. Mr. Kelly filed a petition for judicial review in the Chancery Court for Davidson County seeking to overturn the Civil Service Commissions decision. On April 27, 1999, the trial court affirmed the Commissions decision after determining that Mr. Kellys suspension was not contrary to law, arbitrary or capricious, or unsupported by the evidence. The trial court also rejected Mr. Kellys argument that the Commission acted arbitrarily and capriciously by considering his 1993 demotion when determining whether his punishment was appropriate. Mr. Kelly now appeals from the trial courts decision. D. II. ă D Evidentiary Support for the Suspension ă Mr. Kellys chief argument on this appeal is that the Department failed to present substantial and material evidence that his twoday suspension was warranted. While he does not insist that he was completely blameless, Mr. Kelly asserts that the twoday suspension was too harsh and that either a less harsh punishment or no formal punishment at all would have been warranted. We find that the record supports the Commissioners decision. D. A. ăD& Standard of Review ă Judicial review of decisions by the Tennessee Civil Service Commission are governed by the Tennessee Uniform Administrative Procedures Act. See Tenn. Code Ann.  4-5-322(a)(1) (1998). Trial and appellate courts use the same standard of review. See Ware v. Greene, 984 S.W.2d 610, 614 (Tenn. Ct. App. 1998); Estate of Street v. State Bd. of Equalization, 812 S.W.2d 583, 585 (Tenn. Ct. App. 1990). When the factual support for an administrative decision is challenged, the courts must examine the entire record to determine whether the decision is supported by substantial and material evidence. See Tenn. Code Ann.  4-5-322(h)(5) (1998). The substantial and material evidence standard requires a searching and careful inquiry into the record to determine the basis for the administrative decision. See Sanifill of Tennessee, Inc. v. Tennessee Solid Waste Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995); Wayne County v. Solid Waste Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988). Courts do not reweigh the evidence in these cases, see Humana of Tennessee v. Tennessee Health Facilities Comm'n, 551 S.W.2d 664, 667 (Tenn. 1977); Jackson Mobilphone Co., Inc. v. Tennessee Pub. Serv. Comm'n, 876 S.W.2d 106, 111 (Tenn. Ct. App. 1993), but rather review the record for such relevant evidence as a reasonable mind might accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration. Southern Ry. Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984). We may not reverse an administrative decision supported by substantial and material evidence solely because the evidence could also support another result. See Hughes v. Bd. of Comm'rs, 204 Tenn. 298, 305, 319 S.W.2d 481, 484 (1958); Metropolitan Govt of Nashville and Davidson County v. Tennessee Solid Waste Disposal Control Bd., 832 S.W.2d 559, 561 (Tenn. Ct. App. 1991). Courts may reject an agency's factual findings only if a reasonable person would necessarily draw a different conclusion from the record. See Jones v. Greene, 946 S.W.2d 817, 828 (Tenn. Ct. App. 1996). D. B. ă %D  The Evidence Against Mr. Kelly ăThe state civil service rules permit supervisors to discipline employees whenever just or legal cause exists. Tenn. Comp. R. & Regs. r. 112010.02 (1988). The record before us contains substantial and material evidence that Mr. Kelly refused to accept reasonable and proper assignments from his superiors, XX #XN\  PXP#Ѝ#XN\  PXP#See Tenn. Comp. R. & Regs. r. 112010.06(18) (1996). that he failed to maintain satisfactory and harmonious working relationships with his fellow employees, XX #XN\  PXP#Ѝ#XN\  PXP#See Tenn. Comp. R. & Regs. r. 112010.06(4) (1988). and that he disrupted the normal operation of the Department and interfered with his superiors ability to manage. XX #XN\  PXP#Ѝ#XN\  PXP#See Tenn. Comp. R. & Regs. r. 112010.06(12) (1996). Mr. Kelly did not comply in a timely or cooperative manner with his superiors repeated requests to assist other systems analysts seeking access to the Departments mainframe computer or to clear the hallway of materials. He also ignored the Departments policy requiring advance approval for training. This conduct reflects the absence of a satisfactory and harmonious relationship between Mr. Kelly and the other systems analysts and the Departments temporary director of management systems. The conduct also caused disruption within the Department because Mr. Kellys coworkers efficiency was impaired when they could not gain access to the Departments mainframe computer, and when Mr. Kelly was not available to perform needed work because he was attending training away from the office. Both the Departments legal counsel and the administrative law judge characterized Mr. Kellys conduct as disorganized and negligent rather than insubordinate. However, the record contains substantial and material evidence that supports both the Departments and the Civil Service Commissions conclusion that Mr. Kelly was insubordinate. His lack of respect for his superiors is reflected in his sarcastic responses when he was questioned about the unauthorized training, in his petulant objections to the crosstraining thing ! his reference to his superiors direction that the systems analysts work together rather than independently, and in his purposeful delay in carrying out assignments with which he did not agree. D. III. ă  D The Arbitrariness and Capriciousness of the Suspension ăMr. Kelly also asserts that there are two reasons why the Commissioners and the Civil Service Commissions decision to suspend him for two days was arbitrary and capricious. First, he argues that his conduct, even if proven by substantial and material evidence, did not warrant such harsh punishment. Second, he insists that the Commissioner and the Civil Service Commission should not have taken his 1993 demotion into account in considering the appropriate discipline for these three offenses. Courts may modify or overturn a decision by an administrative agency that is [a]rbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Tenn. Code Ann.  45322(h)(4). This standard of review, while akin to the standard in Tenn. Code Ann.  45322(h)(5), requires the court to determine whether the administrative agency made a clear error in judgment. See Jackson Mobilphone Co. v. Tennessee Pub. Serv. Commn, 876 S.W.2d at 11011. An arbitrary decision is one that is not based on any course of reasoning or exercise of judgment, see State ex rel Nixon v. McCanless, 176 Tenn. 352, 354, 141 S.W.2d 885, 886 (1940), or that disregards the facts or circumstances of the case without some basis that would lead a reasonable person to reach the same conclusion. See Jackson Mobilphone Co. v. Tennessee Pub. Serv. Commn, 876 S.W.2d at 111. Tennessees civil service statutes and rules incorporate the doctrine of progressive discipline. Accordingly, supervisors are expected to administer discipline beginning at the lowest appropriate step. See Tenn. Code Ann.  830330(a), (c) (1993); Tenn. Comp. R. & Regs. r. 112010.07 (1996). Progressive discipline does not require a supervisor to begin at the lowest level of discipline regardless of the nature of the employees conduct. It simply means that the supervisor should impose the lowest appropriate punishment taking into account the nature or severity of the employees behavior. Accordingly, supervisors have the discretion to determine what punishment fits the offense. See Berning v. State Dept of Correction, 996 S.W.2d 828, 830 (Tenn. Ct. App. 1999). We do not sit as some sort of super Civil Service Commission when we review cases involving the discipline of state employees. Based on Mr. Kellys conduct, we cannot fault either the Commissioner or the Civil Service Commission for not giving him either an oral or written warning or some other lesser punishment. Nor can we fault the Commissioner for decreasing Mr. Kellys suspension from three to two days. As one member of the Civil Service Commission observed, Mr. Kelly was lucky to get by with a two day suspension. Based on the evidence in this record, we decline to conclude that Mr. Kellys supervisors abused their discretion by setting his punishment at a twoday suspension. Likewise, we decline to find that either the Commissioner or the Civil Service Commission acted arbitrarily or capriciously by arriving at Mr. Kellys discipline in light of his entire work history, including his 1993 demotion. While prior disciplinary actions have no bearing on whether an employee has engaged in workrelated conduct that warrants discipline, an employees prior conduct, both good and bad, can be considered when determining what the appropriate disciplinary action should be. See Tennessee Dept of Human Servs. v. Mahon, No. 01A019504CH00143, 1995 WL 581086, at *4 (Tenn. Ct. App. Oct. 5, 1995) (No Tenn. R. App. P. 11 application filed) (citing the employees long history of progressive discipline coupled with no overall improvement); Memphis & Shelby County Health Dept v. Bailey, Shelby Eq., slip op. at 3 (Tenn. Ct. App. Dec. 6, 1984) (No Tenn. R. App. P. 11 application filed) (stating that an employees prior record was admissible in determining punishment once the fact of the employees conduct has been settled). The administrative law judge permitted Mr. Kelly to, in effect, collaterally attack the validity of his 1993 demotion. In its order upholding the twoday suspension, the Civil Service Commission expressly held that both the Administrative Law Judges decision to admit evidence on the Grievants 1993 disciplinary demotion which was not grieved and the Administrative Law Judges decision that the demotion could not be relied upon as a prior act of progressive discipline constitute reversible error in this action. We agree with the Civil Service Commissions conclusion on these issues. D. IV. ă We affirm the judgment and remand the case to the trial court for whatever further proceedings may be required. We also tax the costs of this appeal to David E. Kelly and his surety for which execution, if necessary, may issue.______________________________ WILLIAM C. KOCH, JR., JUDGE CONCUR: ________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S. ________________________________ WILLIAM B. CAIN, JUDGE