Mitchell v. Madison County Sheriff's Dep't

325 S.W.3d 603

William MITCHELL

v.MADISON COUNTY SHERIFF'S DEPARTMENT and the Madison County Civil Service Commission for Madison County Sheriff's Department.

No. W2009-00099-COA-R3-CV.

Court of Appeals of Tennessee,Western Section, at Jackson.

Oct. 28, 2009 Session.

March 31, 2010.

Petition to Rehear Denied April 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Barclay M. Roberts, Memphis, Tennessee, for the appellant, William Mitchell.

Brandon O. Gibson, Jackson, Tennessee, for the appellees, Madison County Sheriff's Department and The Madison County Civil Service Commission for Madison County Sheriff's Department.

OPINION

HOLLY M. KIRBY, J, delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.

HOLLY M. KIRBY, J.

This appeal involves the termination of a sheriff's department employee. The employee was terminated and appealed the termination to the county civil service commission. The termination was upheld by the commission, based solely on expert testimony. The employee then sought judicial review. The motion for summary judgment filed by the employer sheriff's department was granted, and the employee's petition was dismissed. The employee now appeals. We find that the expert testimony on which the commission relied is incongruent with the undisputed facts in the record. Therefore, we conclude that the commission's decision is not supported by substantial and material evidence and is arbitrary and capricious. We reverse the grant of summary judgment in favor of the employer and remand for entry of judgment in favor of the employee.

Facts and Proceedings Below

After serving as a police officer in Dallas, Texas and Memphis, Tennessee, Petitioner/Appellant William Mitchell (“Mitchell”) joined the Respondent/Appellee Madison County Sheriff's Department (“Sheriff's Department”) in 1985. Mitchell received numerous promotions over his nearly twenty-year career with the Sheriff's Department. At the time of his termination, Mitchell was an Assistant Chief, serving as the Director of Jail Operations, and was fourth in command of the Sheriff's Department, serving under Madison County Sheriff David L. Woolfork (“Sheriff Woolfork”).

In June 2005, Sheriff Woolfork attended the National Sheriff's Association conference in Louisville, Kentucky. Also attending the conference were Assistant Chief Dan Parr (“Assistant Chief Parr” or “Parr”), Sergeant Lisa Balderrama (“Sergeant Balderrama” or “Balderrama”), Sergeant Annette Martin (“Sergeant Martin”), Chief Tommy Cunningham (“Chief Cunningham”), and Chief Cunningham's wife.

When Sheriff Woolfork returned home from the Louisville, Kentucky conference on June 29, 2005, he retrieved the mail at his house and discovered a postcard addressed to his wife. The postcard was postmarked in the last week of June 2005 ¹ in Louisville, Kentucky and was purportedly from Sergeant Balderrama. The handwritten note on the postcard insinuated that Sergeant Balderrama had traveled to Kentucky with Sheriff Woolfork as part of an ongoing extramarital affair. ²

Alarmed by the postcard, Sheriff Woolfork immediately showed it to Sergeant Balderrama, who told Sheriff Woolfork that the handwriting on the postcard was not hers. Sheriff Woolfork contacted Assistant Chief Parr. Sheriff Woolfork and Assistant Chief Parr compared the signature on the postcard with a specimen of Sergeant Balderrama's signature and observed that the signatures looked similar. Sheriff Woolfork, however, did not believe that Sergeant Balderrama had any motive to send such a note.

Assistant Chief Parr then offered to contact a questioned document examiner in Canton, Ohio, with whom he was acquainted, Michael Robertson (“Robertson”), to ask him to examine the handwriting on the postcard. Prior to joining the Madison County Sheriff's Department, Assistant Chief Parr had owned and operated a security guard provider business in Ohio. Robertson operates his own private investigation business in Canton, Ohio. Assistant Chief Parr met Robertson in the course of operating his Ohio security guard business and had maintained contact with him. Sheriff Woolfork agreed with Assistant Chief Parr's suggestion and told him to contact Robertson.

As directed, Assistant Chief Parr contacted Robertson. Robertson agreed to examine the postcard. On July 2, 2005, Assistant Chief Parr faxed copies of the postcard, as well as exemplars of Sergeant Balderrama's handwriting, to Robertson. After examining these, Robertson told Assistant Chief Parr that, in his opinion, the handwriting on the postcard was not done by Sergeant Balderrama.

Robertson then agreed to examine exemplars of the handwriting of other Sheriff's Department employees to determine whether any of them may have written the postcard. Robertson asked Assistant Chief Parr to provide him with handwriting samples from employees who either attended the conference in Kentucky or had access to the Sheriff's Department personnel files. ³ As per the request, on July 4, 2005, Assistant Chief Parr faxed Robertson handwriting specimens from the following persons: Sergeant Martin, who had attended the conference in Kentucky; Amy Crowder, a former Sheriff's Department employee and a known associate of Sergeant Balderrama; Jon Broc, a former Sheriff's Department employee who had been terminated; Mitchell, and Parr himself, both of whom had had access at some point to Sheriff's Department personnel files. ⁴

The next day, on July 5, 2005, after reviewing the specimens provided via facsimile, Robertson tentatively identified Mitchell as the person whose handwriting was on the postcard. To verify this tentative identification, Robertson asked Assistant Chief Parr to provide him with original documents containing Mitchell's handwriting. Consequently, on July 7, 2005, Assistant Chief Parr drove to Ohio to deliver the postcard and documents to Robertson. Robertson photographed them and gave them back to Assistant Chief Parr, who returned to Tennessee three days later. ⁵

On July 13, 2005, Sheriff Woolfork told Assistant Chief Parr that he had learned that Sergeant Neina Murphy (“Sergeant Murphy”) received a similar postcard on June 28, 2005. ⁶ Like the first postcard, the second postcard was postmarked in the last week of June 2005 ⁷ in Louisville, Kentucky and was purportedly from Sergeant Balderrama. It read: “Wish you were here! My man and I are partying down! this place is nice!” Assistant Chief Parr faxed a copy of the second postcard to Robertson and mailed the original to him. The record does not reflect any steps that were taken in the internal investigation beyond having Robertson examine the postcards and selected handwriting exemplars.

After examining the photographs of the original documents delivered by Assistant Chief Parr as well as the second postcard, Robertson wrote a preliminary report concluding that Mitchell wrote both postcards. On July 19, 2005, Assistant Chief Parr received Robertson's written report, and forwarded the report to Chief Cunningham.

After receiving Robertson's report on the postcards, Chief Cunningham apparently concluded that no further investigation was necessary. At that point, he delivered and read to Mitchell a Statement of Charges (“Statement”), notifying Mitchell that he was being charged with violating the Sheriff's Department Operating Procedures. The statement said:

Notice is hereby given that you are charged with violation(s) of policy as shown below:

Madison County Sheriff's Dept. Operating Procedures:

Section III, General Rules and Regulations:

C. Professional Conduct and Responsibilities

1. Standard of Conduct: Members shall not engage in any conduct which constitutes conduct unbecoming an officer or neglect of duty.

2. Loyalty: Members shall maintain a loyalty to the Department and their associates as is consistent with the law and Departmental rules and regulations.

11. Criticism: Members shall not publicly criticize or ridicule the department, its policies or other employees by talking, writing, or expressing in any other manner where such talking, writing, or other expression tends to impair operation of the Department by interfering with its efficiency; interfering with the ability of supervisors to maintain discipline: or having been made with reckless disregard for truth or falsity.

Date of complaint: July 20, 2005

The finding of the above investigation indicates that you wrote a post card that was addressed to and mailed to the home of [Sheriff Woolfork's wife] and another post card that was addressed to and mailed to the home of Sgt. Neina Murphy, forging the signature of Sgt. Lisa Balderrama on both cards.

The Statement also advised Mitchell that he had a right to a hearing, to be assisted by counsel, to have a person of his choosing as a witness, and to present evidence on his own behalf.

Mitchell had been unaware of either the postcards or the investigation until Chief Cunningham read the Statement to him. Mitchell vehemently denied the allegations in the Statement and repeatedly offered to take a polygraph test to prove his innocence. He told Chief Cunningham to “get the polygraph ready” and that he “wouldn't take a polygraph for anything but, something like this.” ⁸ Chief Cunningham simply acknowledged Mitchell's request to take a polygraph and advised Mitchell that he was suspended without pay pending the outcome of the internal investigation. Mitchell was given no further information on the underlying facts or allegations; he was not shown the postcards and was not informed that the Sheriff's Department had consulted with a questioned document examiner. At the conclusion of his meeting with Chief Cunningham, Mitchell's desk was emptied and he was escorted to his car.

Mitchell's pre-termination Loudermill hearing was held on July 27, 2005. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Present at the hearing were Mitchell, Chief...