ALEXANDER C. WELLS, Petitioner/Appellee, v. TENNESSEE BOARD OF REGENTS, TENNESSEE STATE UNIVERSITY, and DR. JAMES HEFNER, Respondents/Appellants.
NO. M1998-00459-SC-R3-CV
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
December 20, 1999
DROWOTA, J.
FOR PUBLICATION; Davidson Chancery; Hon. Ernest Pellegrin, Special Chancellor
For Respondents-Appellants: Paul G. Summers, Attorney General; Kevin Steiling, Deputy Attorney General, Nashville, Tennessee
O P I N I O N
AFFIRMED. DROWOTA, J.
FACTUAL AND PROCEDURAL BACKGROUND
The appellee, Dr. Alexander Wells, has been employed at Tennessee State University (“TSU“) since 1958, when he was hired as a lab assistant. He later became a professor in the biology department and finally obtained a tenured professorship in that department in 1985. Since becoming a tenured professor, Dr. Wells has conducted research and taught several biology, anatomy and physiology courses each semester.
Thereafter, the Tennessee Board of Regents (“TBR“) initiated charges to terminate Dr. Wells’ tenure. A TBR committee issued Dr. Wells a formal tenure termination notice and invited him to meet with the committee in an attempt to reach a mutually acceptable resolution of the case. Despite this invitation, Dr. Wells did not respond to the committee. Pursuant to TSU policy, a hearing was then conducted before a faculty committee on April 5 and 6, 1994, to determine if adequate grounds existed to terminate Dr. Wells’ employment at TSU. For reasons not contained in the record, Dr. Wells did not testify at the tenure hearing. At the conclusion of proof the hearing committee found just cause to terminate Dr. Wells’ tenure based upon his “capricious disregard of accepted standards of professional conduct” pursuant to
On July 12, 1995, pursuant to
The TBR filed a notice of appeal in this Court on September 10, 1998, pursuant to
REVIEW OF TENURE TERMINATION DECISIONS
The Tennessee Board of Regents’ termination of a tenured faculty member for one of the “adequate grounds” set forth at
‘[d]e novo judicial review’ in this statute and context means a new hearing in the chancery court based upon the administrative record and any additional or supplemental evidence which either party wishes to adduce relevant to any issue. The Chancellor may, of course, confine new evidence to that which is truly supplemental or additional and is not required to hear all of the evidence anew if he does not find this necessary. Otherwise there would be little need for the administrative transcript. However, he may permit introduction of any and all evidence which he deems necessary to enable him to dispose of the issues presented.
SUFFICIENCY OF THE EVIDENCE
The TBR‘s first contention is essentially a sufficiency of the evidence argument. It asserts that the Chancellor erred in evaluating the proof and in applying the clear and convincing standard. After reviewing the totality of the evidence, including the administrative record and the live testimony before the Chancellor, we have determined that although there is proof in the record that supports both Dr. Wells’ and TBR‘s positions, the TBR has not demonstrated that the evidence preponderates against the Chancellor‘s findings.
A. The Chancellor‘s Assessments of Live Witness Testimony
The TBR first insists that no deference should be afforded the live
Unlike appellate courts, trial courts are able to observe witnesses as they testify and to assess their demeanor, which best situates trial judges to evaluate witness credibility. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the most favorable position to resolve factual disputes hinging on credibility determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998). Accordingly, appellate courts will not re-evaluate a trial judge‘s assessment of witness credibility absent clear and convincing evidence to the contrary. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987); Bingham v. Dyersburg Fabrics. Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978).
In contrast, appellate review of documentary proof, such as depositions or other forms of testimony presented to the trial court in a “cold” record, differs
The TBR is correct that the Chancellor heard only the testimony of witnesses testifying on Dr. Wells’ behalf. Yet the TBR seems to ignore the fact that it was also in a position to ask the Chancellor to put on live witnesses at the Chancery Court trial. Had it chosen to do so, the TBR would have also secured the Chancellor‘s assessment of the credibility of those witnesses and the considerable deference afforded that assessment on appeal. Because the TBR did not present witnesses at trial, we must now review a record consisting of, on the one hand, live witness testimony submitted by Dr. Wells, and the Chancellor‘s assessment of that testimony, and on the other hand, the “cold” testimony contained in the administrative record submitted by the TBR. According to well settled law, we must afford strict deference only to the trial court‘s credibility assessments of the witnesses it actually observed, and not to its findings with regard to the administrative record it considered, of which we may make our own
Our review of the transcript of the Chancery proceedings, as well as a reading of applicable case law, indicates that the TBR was not without opportunity to present live witness testimony at the Chancery hearing. In defining the scope of evidence admissible in a de novo review of a tenure termination, we observed in Frye v. Memphis State Univ., 671 S.W.2d at 470, that
the General Assembly intended that there be a broad review in the chancery court with the right of the parties to offer additional evidence if desired. We do not believe that the General Assembly intended to confine review to the record made at the administrative level or to limit additional evidence at the chancery level only to alleged procedural irregularities or improprieties in the administrative process.
Although “[t]he Chancellor may, of course, confine new evidence to that which is truly supplemental or additional and is not required to hear all of the evidence anew if he does not find it necessary . . . . ,” id. at 469, we made it clear that the Chancellor has broad discretion in allowing additional evidence at the de novo review, even if the evidence had already been included in the record at a prior administrative hearing. See id. at 469.
In this case the Chancellor did not preclude the TBR from presenting live witnesses. The Chancellor began the hearing by asking each party whether it had additional proof to offer. Dr. Wells’ counsel alone indicated his intent to put on witnesses. Counsel for the TBR then objected to the witnesses on the ground that their testimony would be redundant and cumulative of testimony that had
We acknowledge that counsel for the TBR may have interpreted Frye v. Memphis State Univ., 671 S.W.2d 467, as restricting Dr. Wells from presenting witnesses at the Chancery hearing whose testimony would be redundant of that presented at prior administrative hearings. However counsel was aware that Dr. Wells did not testify at the prior hearing before the faculty committee, and that his testimony may therefore have been considered “additional” by the Chancellor and permissible under the Frye decision. Furthermore, the record indicates that counsel for the TBR was made aware that Dr. Wells planned to put on as many as eighty-one witnesses at the Chancery hearing. In sum, by confining its proof at trial to the administrative record, despite Dr. Wells’ presentation of additional witnesses, the TBR knew or should have known that on appeal, this Court would strictly defer to the Chancellor‘s credibility determinations with regard only to the witnesses it actually heard, and not to the testimony contained in the administrative record, of which we may make an independent credibility assessment. In reversing the decision of the TBR, the Chancellor specifically found Dr. Wells’ testimony to be credible, and we adhere to that assessment due to the absence of clear and convincing proof to the contrary. See Bingham v. Dyersburg Fabrics. Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978); Thompson v. Creswell Indus. Supply, Inc., 936 S.W.2d 955, 957 (Tenn. Ct. App. 1996).
B. The Chancellor‘s Review of the Administrative Record
The record of the hearing before the ALJ was clearly admitted into evidence at the Chancery trial. In his Memorandum and Final Order, the Chancellor refers to all of the evidence, stating that his decision was “[b]ased upon review of the entire record, the additional evidence introduced at trial and consideration of the argument of counsel for both parties . . .” While the Final Order makes no reference to the testimony of specific witnesses who testified before the ALJ, we have no reason to believe that the Chancellor ignored or otherwise overlooked the transcript of that hearing in weighing the evidence. Furthermore, the TBR could have filed a motion pursuant to
THE TESTIMONY OF JACKIE JONES
The TBR next contends that the Chancellor erred by declining to consider the testimony of Jackie Jones, who worked as a secretary in the biology department at TSU from 1977 to 1983. Ms. Jones testified that Dr. Wells sexually harassed her during her tenure at TSU and that she filed charges against him with the University. Ms. Jones further testified that after learning that the University‘s only disciplinary action against Dr. Wells was a six-month probation, she left her job because she did not feel safe working in the same building as Dr. Wells.
Although Ms. Jones had testified at the faculty committee tenure hearing,
In Phillips v. State Bd. of Regents, 863 S.W.2d 45 (Tenn. 1993), we addressed the situation where a tenured faculty member at Shelby State Community College was terminated for “capricious disregard of accepted standards of professional conduct” based upon her “lack of professional behavior toward students, staff and colleagues,” “insubordination to supervisors,” and “continuous increasing patterns of controversy with other professional areas at the college.” See id. at 48. This Court affirmed the tenure termination, finding that there was “overwhelming proof from students, staff, colleagues, and superiors about Phillips’ inappropriate behavior.” See id. at 48. The Phillips case clearly illustrates that the behavior of tenured faculty toward staff, colleagues and superiors, as well as toward students, can constitute “capricious disregard” within the meaning of
EVIDENCE OF OTHER VICTIMS
We next address the TBR‘s assertion that the Chancellor committed error by failing to consider the claims of a number of women who also allege they were sexually harassed by Dr. Wells. In his Memorandum and Final Order, the Chancellor recognized that “[i]n addition to Ms. Hayes [Jordan], the Respondents [TBR] presented evidence at the administrative hearing from four other women regarding incidents of alleged misconduct by Dr. Wells.” The Chancellor then discussed the allegations and credibility of the testimony of these four women. The TBR points out that the record contained allegations of eight alleged victims, and that the Chancellor‘s failure to discuss some of these allegations in the final order indicates a blatant disregard for their claims. Accordingly, the TBR insists that the Chancellor‘s findings are not supported by a preponderance of the evidence.
We acknowledge that in his final order the Chancellor discussed only the testimony of the alleged victims who testified at the faculty committee tenure hearing, and not at the ALJ hearing.3 However the claims of the other alleged victims, who testified only at the ALJ hearing, were also contained in the record, and nothing indicates that the Chancellor refused to consider their testimony. We
PRIOR NOTICE OF INAPPROPRIATE BEHAVIOR
Finally, the TBR argues that the trial court erred in determining that the charges against Dr. Wells cannot stand because TSU did not give him prior notice that his behavior was inappropriate. Relying on Phillips v. State Bd. of Regents, 863 S.W.2d 45, the Chancery Court concluded that “[i]n order for one to evince the requisite capricious disregard for the applicable standard of professional conduct, it is necessary to first have notice that one‘s behavior does not conform to the standard.” In the Phillips case a tenured professor, prior to her dismissal for cause, received notice from the university on several occasions that her behavior was inappropriate and that her failure to correct it could result in her termination. Applying that logic to these facts, the Chancellor determined that “[i]n the instant case, there was no evidence that the University ever told Dr. Wells of any problems or complaints regarding his behavior toward students. . . . Because Dr. Wells was not put on notice that he had acted inappropriately, his actions could not evince a ‘capricious disregard for accepted standards of professional conduct.‘” We have concluded that the Chancellor misinterpreted our holding in Phillips v. State Bd. of Regents, 863 S.W.2d at 50-51, and erred by finding that Dr. Wells did not receive adequate notice of the charges against him.
Our decision in Phillips v. State Bd. of Regents, 863 S.W.2d 45, does not hold that formal notice of each allegation of deficient conduct is required before termination proceedings can be initiated against a tenured employee. Rather, in that case we observed that while the fundamental requirements of due process must be satisfied (notice and an opportunity to be heard) in tenure termination proceedings, see Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950), due process is flexible and “[e]laborate procedures at one stage may compensate for deficiencies at other stages,” see Phillips v. State Bd. of Regents, 863 S.W.2d at 50 quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191 (1965). The primary purpose of the notice requirement is “to allow the affected party to marshal a case against the firing body.” See Phillips v. State Bd. of Regents, 863 S.W.2d at 50. Applying these guidelines, we determined that although Phillips claimed she was not given sufficiently detailed notice of the charges against her, by the time she received a de novo review in Chancery Court she had received detailed notice and was capable of presenting additional evidence to refute the allegations against her. See id. at 50.
Like in Phillips v. State Bd. of Regents, 863 S.W.2d at 50-51, we conclude
The TBR also takes issue with the Chancery Court‘s conclusion that because he had not been informed by the University that there was a problem with his behavior toward students, Dr. Wells could not have known that his conduct evinced a capricious disregard for accepted standards of conduct within the meaning of
In Phillips v. State Bd. of Regents, 863 S.W.2d at 50, this Court addressed Phillips’ contention that the “capricious disregard” statute was void for vagueness by stating:
We agree with the Third Circuit that it is not unfair or unforeseeable for a tenured professor to be expected to behave professionally towards students and co-workers and to comply with the directives of a superior . . . . Clearly, Phillips, using her common sense and general knowledge of employer-employee relationships, had fair
notice that the conduct charged put her at risk of dismissal under the standard of ‘capricious disregard of accepted standards of professional conduct.’
Id. quoting San Filippo v. Bongiovanni, 961 F.2d 1125, 1137 (3rd Cir. 1992).
Applying the rule in Phillips v. State Bd. of Regents, 863 S.W.2d at 50, that a tenured employee must use common sense in discerning what is appropriate behavior, it is clear that Dr. Wells had ample notice that his alleged conduct was not appropriate within the meaning of
Moreover, Dr. Wells had been disciplined by TSU on a prior occasion, when Ms. Jones had filed charges against him for sexual harassment. Contrary to Dr. Wells’ contention that he was unaware of TSU‘s standards with regard to sexual harassment, the probation he received in connection with Ms. Jones’ complaint should have alerted him that his behavior, in some fashion, did not comport with university standards. We find no merit to the Chancery Court‘s conclusion that Dr. Wells did not have notice that his conduct, while perhaps constituting a “disregard” for accepted standards of professional conduct, could have also amounted to a “capricious” disregard for those standards.
We conclude that the evidence does not preponderate against the Chancellor‘s finding that the record in this case fails to clearly and convincingly establish the charge of “capricious disregard of accepted standards of professional conduct.” Accordingly, the judgment of the Chancery Court reversing the Tennessee Board of Regent‘s dismissal of Dr. Wells is affirmed. Costs of this appeal are taxed against the Tennessee Board of Regents.
Frank F. Drowota, III, Justice
CONCUR:
Anderson, C.J.
Barker, Holder, JJ
Birch, J. Not - Participating