Vatisha Evans-Barken v. Madison County, Tennessee

05/11/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 11, 2022 Session

VATISHA EVANS-BARKEN v. MADISON COUNTY TENNESSEE

Appeal from the Chancery Court for Madison County
No. 76475 James F. Butler, Chancellor
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No. W2020-01101-COA-R3-CV
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Appellee, a Sergeant with the Madison County Sheriff’s Department, sought judicial
review of the Civil Service Board’s affirmance of the Sheriff Department’s decision to
terminate her employment. On its finding that the Board failed to consider all relevant
evidence presented, the trial court exercised its discretion to remand the case to the Board
for rehearing. Tenn. Code Ann. § 4-5-322(h). Appellant, Madison County, Tennessee,
filed the instant appeal. We conclude that the trial court’s remand order is not a final,
appealable order under Tennessee Rule of Appellate Procedure 3(a). As such, this Court
does not have subject matter jurisdiction over the appeal. Appeal dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and THOMAS R. FRIERSON, J., joined.

James I. Pentecost, Nathan D. Tilly, and Jay G. Bush, Jackson, Tennessee, for the appellant,
Madison County, Tennessee.

Brad W. Hornsby and Michael S. Hibdon, Murfreesboro, Tennessee, for the appellee,
Vatisha Evans-Barken.
 MEMORANDUM OPINION1

I. Background

In or around October 2007, Appellee Vatisha Evans-Barken was hired by the
Madison County Sheriff’s Department (the “Department”). During her tenure with the
Department, Appellee attained the rank of Sergeant and was certified in accordance with
the Peace Officer’s Standards Training (“POST”) criteria. Tenn. Code Ann. § 38-8-106.

In or around April 2014, Appellee went on medical leave. After exhausting her
vacation days and earned time off, she requested additional leave under the Family Medical
Leave Act (“FMLA”). On September 2, 2014, the Department terminated Appellee’s
employment on the ground that she had exhausted her FMLA leave and had not provided
a doctor’s opinion that she could not return to work. Appellee appealed to the Civil Service
Board (the “Board”), which overturned the Department’s decision on March 30, 2015. The
Board found that, on July 15, 2014, Appellee requested an extension of her FMLA leave
to October 1, 2014, but she did not receive notice of Appellant Madison County,
Tennessee’s decision to deny the extension. The Department appealed the Board’s
decision to the Madison County Chancery Court (“trial court”), which affirmed the Board’s
decision by order of February 23, 2016. Thereafter, in March 2016, Appellee was
reinstated.

Although Appellee was reinstated, because she had not worked as a full-time law
enforcement officer for more than six-months, she was required to undergo a psychological
evaluation under POST, Tenn. Code Ann. § 38-8-106(9). POST requires a full-time police
officer to

[h]ave been certified by a Tennessee licensed health care provider qualified
in the psychiatric or psychological field as being free from any impairment,
as set forth in the current edition of the Diagnostic and Statistical Manual of
Mental Disorders (DSM) of the American Psychiatric Association at the time
of the examination, that would, in the professional judgment of the examiner,
affect the applicant’s ability to perform an essential function of the job, with
or without a reasonable accommodation.

1
Rule 10 of the Rules of the Court of Appeals provides:

This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall
not be published, and shall not be cited or relied on for any reason in any unrelated
case.
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Tenn. Code Ann. § 38-8-106(9).

On March 30, 2016, Dr. Emily Davis, Ed.D., a Licensed Senior Psychological
Examiner, performed the required tests, which included both the MMPI-2 and the Matrix-
Predictive Uniform Law Enforcement Selection Evaluation Inventory (“M-Pulse”). Dr.
Davis also interviewed Appellee for approximately fifteen-minutes. Dr. Davis reported
that Appellee’s

response profiles on the MMPI-2’s clinical and content scales did not
indicate any psychopathology. However, her responses and response profiles
on the [M-Pulse] (which predicts a potential law enforcement candidate’s
success in law enforcement work) indicated some areas of significant
concern about her potential as a successful law enforcement employee. The
areas of concern, based on her own responses to the M-Pulse Empirical
scales, and the California POST Competencies scales do suggest, in this
examiner’s opinion, that Ms. Evans-Bark[e]n’s ability to competently
perform the essential functions of a law enforcement career is questionable,
and that her work performance would be unsatisfactory to the [D]epartment
if she were employed in a law enforcement capacity.

As set out in the trial court’s July 29, 2020 order, Dr. Davis’ opinion was based on the
following:

[Appellee’s] results on the M-Pulse testing were elevated in some areas. On
intake paperwork, [Appellee] had indicated she had depression. Dr. Davis
talked to [Appellee] about this disclosure and found that [Appellee] had been
in counseling in the two years before the test for six months each year, but
was not in counseling in 2016 when the testing was done. Dr. Davis
conducted an interview with [Appellee] which lasted ten to fifteen minutes.
Thereafter, Dr. Davis generated the report stating [Appellee] was not
qualified to be rehired. Her basis for that conclusion was [Appellee’s]
alleged statements in her prior sworn testimony at her initial hearing before
the [Board] in 2014 relative to her alleged PTSD. [Appellee] did not indicate
any problems with PTSD on the paperwork filled out prior to the testing, and
Dr. Davis did not ask her about it. Dr. Davis also stated [Appellee] did not
pass the M-Pulse test in her opinion. It was later argued that [Appellee] did
not state she had PTSD at the previous hearing, but that it was a statement
made by her counsel.

Based on Dr. Davis’ report and opinion that Appellee was not qualified for POST
certification under Tennessee Code Annotated section 38-8-106(9), the Department
terminated Appellee’s employment effective April 5, 2016. As set out in the trial court’s
order, Appellee “was disqualified because of a ‘diagnosis’ of PTSD as shown on Exhibit 6
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dated July 15, 2014 under the ‘Assessment’ section.” Exhibit 6 appears to be a physician’s
record from Dr. John Michael Briley. The parties dispute whether Dr. Davis relied on Dr.
Briley’s record in forming her opinion that Appellee suffered from PTSD.

Appellee appealed the Department’s decision to the Board, which conducted a
hearing on April 20, 2017. The Board heard testimony from Sheriff John Mehr and Dr.
Davis. As noted by the trial court, during her testimony, Dr. Davis

conceded that she was not qualified to make a diagnosis of PTSD and the end
result of the PTSD discussion between [Dr.] Davis and [Appellee’s] counsel
was that all of the testing done by Dr. Davis showed [Appellee] was qualified
and that she was relying on a statement made by [Appellee’s] counsel at the
2014 initial hearing before the Board.

The Board also heard testimony from Appellee’s expert psychologists, Megan L.
Avery, Ph.D., and Neil E. Aronov, Ph.D. Both Dr. Avery and Dr. Aronov disputed Dr.
Davis’ methods, qualifications, and expertise. Dr. Avery testified that she performed a
fitness-for-duty evaluation of Appellee on October 5, 2016. Based on that evaluation, Dr.
Avery opined that Appellee did not have a psychiatric problem and exhibited “no
symptoms impairing her ability to perform her job.” Dr. Aronov testified that Dr. Davis’
evaluation techniques deviated significantly from accepted methodology and that the brief
interview Dr. Davis had with Appellee was insufficient to form a valid opinion as to
Appellee’s fitness for duty. Dr. Aronov further testified that the evidence Dr. Davis
provided to him for review excluded a test that Dr. Davis performed but omitted from her
report. Dr. Aronov explained that his review of the missing test caused him no concern
regarding Appellee’s fitness for duty, but he testified that the standard practice is to disclose
all parts of an evaluation regardless of whether the information supported the examiner’s
conclusion or was considered by the examiner in reaching his or her conclusion.

By order of January 26, 2018, the Board affirmed the Department’s termination of
Appellee’s employment. The Board’s opinion stated, in relevant part that:

Neither Dr. Davis’ qualifications, the evaluation of the [Appellee] which she
performed, nor the manner in which she performed it are at issue before this
Board. Our sole task is determining whether the [Appellee’s] termination by
Sheriff Mehr was one of “just cause”. Our task is not, however, with the
benefit of information available to Sheriff Mehr at the time of the
termination, to critique his decision as if he were privy to such. There was
no evidence introduced which showed that either prior to or at the time of the
termination, that Sheriff Mehr had any reason whatsoever to question Dr.
Davis’ credentials or her work . . . .

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 On March 22, 2018, Appellee filed a Petition for Judicial Review in the trial court
under the Uniform Administrative Procedures Act (“UAPA”). Tenn. Code Ann. § 4-5-
101, et seq. Appellee sought reversal of the ruling of the Board upholding the Department’s
termination of her employment and raised the following issues for the trial court’s
consideration: (1) whether the decision made by the Board violated a statutory or
constitutional provision; (2) whether the decision made by the Board was made in excess
of the agency’s authority; (3) whether the decision made by the Board was arbitrary and/or
capricious and unsupported by substantial and material evidence; and (4) whether Appellee
is entitled to back pay and her attorney’s fees. A writ of certiorari was issued to the Board
for all records of the proceeding before the Board, and these records were transmitted to
the trial court for review. By order of July 29, 2020, the trial court found, in relevant part:

[T]he Court is aware, from the opinion of the Civil Service Board, dated
January 26, 2018, that the Board considered none of the testimony of Dr.
Avery and Dr. Aronov, or the evidence they produced.

***

[T]he Board found the Sheriff had “just cause” to terminate [Appellee], based
solely on the knowledge the Sheriff had at the time of his decision to
terminate. The Board further opined that since the Sheriff did not have the
information that the Board had which was produced at the hearing, that the
Board would not view the Sheriff’s decision as if he had the information that
the Board had. The Board seemed to misinterpret its role. The Board is not
a reviewing agency. The Board hears the matter de novo. The Board allows
the evidence to be developed and introduced at the hearing. The Board is in
fact the “Trial Court”. The Sheriff’s actions in discharging or demoting a
person shall be subject to the approval or disapproval of the Board. If the
Board approves the discharge or demotion of an employee, the decision may
be appealed to the court having appropriate jurisdiction. The . . . Act
contemplates, by its very wording, that the Board, after hearing the evidence,
shall substitute its judgment for that of the Sheriff by either approving or
disapproving the action of the Sheriff.

***

The process providing for a hearing before the Civil Service Board is a due
process hearing where both sides present evidence and the case is heard de
novo, and both sides present their position. The Board decides if the
employee should be discharged. If the Board only had the authority to decide
if the Sheriff had “just cause” to discharge or demote, based on the Sheriff’s
assessment of the facts, there would be no point in hearing the discharged
employee’s evidence.
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 In the instant case, the Board’s decision to determine “just cause”
based solely on what information the Sheriff had at the time of his unilateral
decision renders that decision to be in violation of the constitutional right of
due process. The essential requirements of due process are notice, and an
opportunity to respond. The opportunity to present reasons, either in person
or in writing, why the proposed action should not be taken is a fundamental
due process requirement.
For the Board to include the information the Sheriff had at the time of
termination, but to exclude other evidence presented before the Board (which
the Sheriff did not have at the time of termination) violates the Board’s
mandate to hear the matter de novo and consider not only the Sheriff’s side,
but the [Appellee’s] side as well. To exclude the evidence presented by the
[Appellee] in its decision making role renders the Board’s decision arbitrary
or capricious and unsupported by evidence that is both substantial and
material in light of the entire record, and shows that the Board’s decision was
made upon unlawful procedure.

Based on the foregoing findings, the trial court disposed of the petition as follows:

This Court finds that the record of the Board in this case is fully developed
and that a reversal is not appropriate, which would require a new hearing. It
is appropriate to have the Board review and consider all of the evidence
introduced at the hearing and enter a ruling that reflects a consideration of
the entire record.
The case is hereby remanded to the Civil Service Board for Madison
County, Tennessee for further proceedings in light of this ruling.

Madison County appeals.

II. Analysis

Madison County raises four issues for review. However, before reaching the issues,
this Court must first address the question of subject matter jurisdiction. Tenn. R. App. P.
13(b) (directing the appellate court to consider “whether the trial and appellate court have
jurisdiction over the subject matter, whether or not presented for review”). “Subject matter
jurisdiction refers to a court’s authority to adjudicate a particular case or controversy and
‘depends on the nature of the cause of action and the relief sought.’” In re Baby, 447
S.W.3d 807, 837 (Tenn. 2014) (quoting Chapman v. DaVita, Inc., 380 S.W.3d 710, 712
(Tenn. 2012)). Subject matter jurisdiction cannot be waived, id., and “whenever it appears
by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.” Tenn. R. Civ. P. 12.08.

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 Under the UAPA, parties aggrieved by the final decision in a contested
administrative matter are entitled to judicial review. Tenn. Code Ann. § 4-5-322(a)(1).
Additionally, “[a] preliminary, procedural or intermediate decision is immediately
reviewable if review of the final agency decision would not provide an adequate remedy.”
Id. Judicial review of an administrative decision concerning employment decisions by
city or county civil service boards is instituted by filing a petition for review in chancery
court. Tenn. Code Ann. § 4-5-322(b)(1)(A); Tenn. Code Ann. § 27-9-114(b)(2) (stating
that “decisions by a city or county civil service board affecting the employment status of a
civil service employee” are to be filed in the chancery court of the county where the civil
service board was located). Review of a “final judgment of the chancery court” may then
be appealed to the Tennessee Court of Appeals. Tenn. Code Ann. § 4-5-323(a); see also
Tenn. R. App. P. 3(a) (“In civil actions every final judgment entered by a trial court from
which an appeal lies to the Supreme Court or Court of Appeals is appealable as of right.”).

“[A]ny order that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties is not enforceable or appealable[.]” Tenn. R. App. P. 3(a). “A
final judgment is one that resolves all the issues in the case, ‘leaving nothing else for the
trial court to do.’” In re Estate of Henderson, 121 S.W.3d 643, at 645 (Tenn. 2003)
(citation omitted). In the context of administrative proceedings, this Court has recently
explained that

[a] final judgment of an administrative matter by a chancery court occurs
when all issues before the chancery court are conclusively determined by the
court and leave no other issues for the chancery court to decide. Richardson
v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 460 (Tenn. 1995). “The judicial
review of the agency decision [is] not a continuation of the agency
proceeding, but [is] an original judicial review proceeding under Section 4-
5-323 subject to review by the appellate courts.” Id. (footnote omitted). A
full evidentiary hearing by the Chancery Court is not necessary for the court
to enter a final order addressing the only issues before it. City of Memphis v.
Lesley, No. W2012-01962-COA-R3-CV, 2013 WL 5532732, at *9 (Tenn.
Ct. App. Oct. 27, 2013). When an order makes clear that the trial court left
issues unadjudicated, appeal to the appellate court is premature, even where
issues are not expressly reserved by the trial court. See Wilson v. City of
Memphis, No. W2014-01822-COA-R3-CV, 2015 WL 4198769 at *6 (Tenn.
Ct. App. July 13, 2015).

Mosley v. City of Memphis, No. W2019-00199-COA-R3-CV, 2019 WL 6216288, at *4
(Tenn. Ct. App. Nov. 21, 2019). The instant case is similar to the Wilson case cited in
Mosley. In Wilson, an equipment operator for the City of Memphis sought judicial review
of the Civil Service Commission’s decision that there was just cause to terminate her
employment. Wilson, 2019 WL 6216288, at *2. By order of May 14, 2013, “the trial court
remanded the matter back to the Commission to clarify whether its decision was based
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upon the Memorandum of Understanding, which the trial court ruled was non-binding, or
the City’s Personnel Manual, which the trial court ruled was an appropriate basis for
discipline.” Id. at *3. On remand, the Commission entered a supplemental order; however,
the trial court was not satisfied with the Commission’s supplemental order, as it “failed to
show an objective review of the record” and “failed to comply with the City’s Charter.”
Id. Accordingly, by order of December 18, 2013, the trial court again remanded the matter
back to the Commission. Id.

The Wilson Court held that neither of the trial court’s orders of remand were final,
to-wit:

In this case, the May 14, 2013 order is clearly not final. First, the trial
court undoubtedly intends to retain jurisdiction, evidenced by the fact that it
gives the Commission a specific time frame for carrying out the trial court’s
directives. More importantly, the May 14, 2013 order does not resolve all
the claims of the parties and cannot constitute a final judgment from
which an appeal will lie. See Tenn. R. App. P. 3(a). Instead, the order was
interlocutory in nature, and other proceedings and orders were required
to create a final judgment.
Although the December 18, 2013 order does not contain as clear an
indication of the trial court’s intent to reserve certain issues for later
consideration, we likewise conclude that it did not constitute a final
judgment. First, much like with the May 14, 2013 order, the trial court clearly
directs the Commission to respond to its ruling within a specific timeframe.
Furthermore, this order simply cannot constitute a final order on Ms.
Wilson’s petition for a writ of certiorari because it fails to rule on her
requested relief, an award of reinstatement with full back pay and
benefits, as well as attorney’s fees. Without ruling on Ms. Wilson’s
request, the trial court had not yet ruled on “all the claims, rights, and
liabilities of all the parties.” See Tenn. R. App. P. 3(a). Instead, the trial
court’s ruling was not final until the trial court entered two additional orders:
the August 11, 2014 order awarding Ms. Wilson reinstatement, back pay, and
benefits; and the November 20, 2014 order denying Ms. Wilson’s request for
attorney’s fees and other pending requests for relief.

Wilson, 2019 WL 6216288, at *6 (emphases added). The same is true here. As set out in
context above, the trial court concluded that the Board failed to consider all of the evidence
presented at its hearing and specifically failed to consider the evidence and testimony from
Dr. Aronov and Dr. Avery. As such, the trial court exercised its authority under Tennessee
Code Annotated section 4-5-322(h) and “remanded the case [to the Board] for further
proceedings,” i.e., consideration of the full record before it. Importantly, the trial court did
not reverse, affirm, or modify any of the Board’s substantive decisions. In other words,
the trial court did not “rule on [Appellee’s] requested relief, an award of reinstatement with
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full back pay and benefits, as well as attorney’s fees.” Id. Although, in Wilson, the Court
ultimately took jurisdiction over the appeal, it was not “until the trial court entered two
additional orders: the August 11, 2014 order awarding Ms. Wilson reinstatement, back pay,
and benefits; and the November 20, 2014 order denying Ms. Wilson’s request for attorney’s
fees and other pending requests for relief.” Id. Such rulings have not been made by the
trial court in the instant case. In the absence of a final order in the trial court, this Court
does not have subject matter jurisdiction over the appeal. Tenn. R. App. P. 3(a).

III. Conclusion

For the foregoing reasons, the appeal is dismissed. Costs of the appeal are assessed
to the Appellant, Madison County, Tennessee, for all of which execution may issue if
necessary.

s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE

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