Nixon v. City Of Murfreesboro
| Decision Date | 09 July 2010 |
| Docket Number | No. 08-1435CV,No. M2009-01347-COA-R3-CV,08-1435CV,M2009-01347-COA-R3-CV |
| Parties | BETTS NIXON v. CITY OF MURFREESBORO |
| Court | Tennessee Court of Appeals |
Van French, Murfreesboro, Tennessee, for the appellant, Betts Nixon.
James L. Weatherly, Jr., Nashville, Tennessee, for the appellee, City of Murfreesboro.
April 15, 2010
Appeal from the Chancery Court for Rutherford County
Robert E. Corlew, III, Chancellor
City employee brought suit to challenge her dismissal for violation of the city's drug and alcohol policy. The trial court affirmed the decision of the city's disciplinary review board. The employee argues that the decision of the disciplinary review board should be reviewed de novo, that the city is estopped by its actions from relying on the blood alcohol test results and from terminating her employment, that she was denied due process by the actions of the city manager and the disciplinary review board, that the city abused its discretion, and that the city's decision is not supported by substantial and material evidence. We have concluded, as did the trial court, that the decision of the disciplinary review board is properly reviewable under the standards set forth in the Uniform Administrative Procedures Act. Under those standards, we affirm the trial court's decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
OPINION
Betts Nixon worked for the City of Murfreesboro for 23 years and by all accounts was a dedicated and competent employee. Ms. Nixon developed the city's buildings and codes department and served as its director for many years.
The events that precipitated this lawsuit occurred on the morning of November 16, 2007. After receiving a report from an assistant city attorney that Ms. Nixon appeared to be under the influence of an intoxicant, the city personnel director met with Ms. Nixon, who consented to drug and alcohol testing. A screening breath test showed a blood alcohol level of 0.133; a confirming breath test twenty minutes later showed a blood alcohol level of 0.131. Ms. Nixon then requested a blood test, which was administered about an hour after the original screening breath test. Based upon the breath test results, Roger Haley, City Manager, placed Ms. Nixon on administrative leave.
Ms. Nixon's attorney sent a letter to Mr. Haley on November 30, 2007, along with the blood test results, which showed a blood alcohol level of 0.14.1 After receiving these results, Mr. Haley sent a letter to Ms. Nixon info rming her that his proposed disciplinary action was termination of her employment, subject to her right to a due process hearing. On December 4, 2007, Ms. Nixon requested a due process hearing.
The due process hearing was held before Mr. Haley on December 17, 2007. Ms. Nixon and the city were both represented by counsel. The city put on testimony from David Ives, the assistant city attorney who reported his suspicion that Ms. Nixon had been drinking; Sherry Carpenter, city personnel director; Leah Cathey, administrator at Concentra Medical Center, the facility contracted to do alcohol and drug testing for the city; and Sandra Johnson, the medical assistant who administered the tests to Ms. Nixon. Ms. Nixon presented testimony from Roy Nixon, her husband; Terra Wielgus-Green, an administrative assistant in the building and codes department; Donna Stem, Ms. Nixon's secretary; Gary Whitaker, an assistant to Ms. Nixon in the building and codes department; Monty Kapavik, a codes inspector; and Richard Boone, a codes inspector. Ms. Nixon herself testified concerning her alcohol consumption on the night of November 15 to 16, 2007. She acknowledged that she drank a 3-ounce vodka cocktail at around 5 p.m. on November 15, two large glasses of red wine with dinner, and a Bailey's cocktail at about 2:30 a.m. on November 16. Ms. Nixon denied having any other alcoholic drinks between 2:30 a.m. and the time of the testing, which began at 10:54 a.m. Ms. Nixon further presented the testimony of Dr. Michael Helton, her primary care physician, to support her position that she did not metabolize alcohol normally and that medications she was taking may have interfered with her ability to metabolize alcohol during the time period in question. In response to Ms. Nixon's proof, the city presented the testimony of Susan McGannon, city attorney; Joseph Aydelott, city planning director; and Dr. Howard Taylor, a toxicologist.
At Ms. Nixon's request, Mr. Haley postponed his decision concerning her case to allow her to submit additional evidence. Ms. Nixon subsequently submitted to Mr. Haley a hair spray sample, which she claimed explained the smell of alcohol detected by Ms. Carpenter and Ms. McGannon; an article to support the theories about which Dr. Helton had testified; and the results of a blood test performed at Ms. Nixon's request on November 30, 2007. Ms. Nixon declined to take an alcohol elimination test proposed by Dr. Taylor.
In a letter dated January 16, 2008, Mr. Haley set forth findings of fact and concluded that Ms. Nixon had violated the city's alcohol policy. He notified Ms. Nixon that she was terminated as a city employee effective that day. In accordance with the city charter, Ms. Nixon exercised her right to appeal her termination to the city's disciplinary review board ("DRB").
The hearing began on April 16, 2008, before seven members of the DRB and Jim Duncan, Hearing Officer. The city's first witness was David Ives, assistant city attorney, who testified that he and Ms. Nixon were scheduled to attend a hearing in court on the morning of November 16, 2007, and that Ms. Nixon was to be the city's chief witness. When he met with Ms. Nixon that morning prior to the hearing, Mr. Ives observed that Ms. Nixon's eyes were watery, her speech was slightly slurred, and that she exhibited "hesitancy, a deliberateness in making responses." He also noted that her physical movements were deliberate and slow. Mr. Ives further testified about what he perceived to be Ms. Nixon's fumbling, awkward behavior when asked about a file. Although he had some misgivings about Ms. Nixon's ability to appear as a witness, Mr. Ives elected to proceed to the courthouse for the hearing.
As it turned out, the hearing was continued because the judge recused himself, and Mr. Ives and Ms. Nixon returned to their city offices. Upon arriving back at his office at around 10:00 a.m., Mr. Ives went to talk to the city attorney, Susan McGannon, about what had happened in court and his concerns about Ms. Nixon's unusual behavior. He told Ms. McGannon that he thought Ms. Nixon had been drinking that morning. Ms. McGannon called in the personnel director, Sherry Carpenter, and Mr. Ives explained what he had observed to her. At that point, M s. Nixon was summoned to M s. M cG annon's office and informed about Mr. Ives's concerns. Mr. Ives then returned to his office and made a written statement concerning his observations of Ms. Nixon that morning.
The next witness for the city was Sherry Carpenter, the personnel director, who testified about the city's policies and procedures with respect to alcohol and drug use and misuse and about her contact with Ms. Nixon on the day in question. After Ms. McGannonsummoned Ms. Nixon to her office, Ms. Carpenter informed Ms. Nixon of Mr. Ives's belief that she was under the influence of drugs or alcohol. Ms. Nixon responded that she had not been drinking but had been taking pain medication for pain in her jaw. As to her own observations, Ms. Carpenter testified that Ms. Nixon's eyes were "moist, somewhat glassy" and that "[s]he was not as responsive to me as I have found Betts to be in the past." Ms. Carpenter also noticed that Ms. Nixon had a slight slur, "almost like a cottonmouth effect." Ms. Carpenter further stated that, when she leaned down to give Ms. Nixon the testing consent forms for her to sign, she smelled "alcohol about her person." It was decided that Ms. McGannon would take Ms. Nixon to the testing facility. Ms. Carpenter stated that the smell of the hair spray provided by Ms. Nixon was not the smell she had noted on Ms. Nixon on the morning at issue.
Susan McGannon, the city attorney, testified about the events of November 16, 2007, including the report made to her by Mr. Ives concerning Ms. Nixon's behavior and appearance that morning and her meeting with Mr. Ives, Ms. Carpenter, and then Ms. Nixon. When asked about her impressions of Ms. Nixon's appearance when she came into Ms. McGannon's office, Ms. McGannon stated that she noticed Ms. Nixon's eyes looked "atypical," "a little watery, glassy, popeyed." She further observed that Ms. Nixon "was speaking very slowly and nonreactively."
Ms. McGannon testified that she transported Ms. Nixon to the testing facility. After Ms. Nixon tested positive for alcohol, she expressed to Ms. McGannon that she did not understand the results because she had not had anything to drink for more than four hours.2 Ms. Nixon stated that she had Bailey's at 3:00 a.m. Ms. McGannon sat down with Ms. Nixon and discussed the disciplinary procedures. Ms. Nixon requested a blood alcohol test, which was not part of the city's testing protocol. When she moved next to Ms. Nixon to answer a question about the city's procedures, Ms. McGannon smelled alcohol on Ms. Nixon. She testified that the hair spray she was asked to smell at the hearing was not the same smell she detected on Ms. Nixon that day.
Leah Cathey, the Concentra administrator on November 16, 2007, testified about the testing procedures and the results of Ms. Nixon's breath tests. She stated that the results of the drug test administered to Ms. Nixon were negative for the five drugs tested. Ms. Cathey was called to the front desk at Concentra when Ms. Nixon requested a...
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