Amicus Briefs in Support of Respondent

    i  o im  No.

In the Supreme Court of the United States
OCTOBER TERM , 1985

THE UNIVERSITY OF TENNESSEE, et al., Petitioners,
vs,

ROBERT B. ELLIOTT, Respondent. 

APPE N D IX  TO
PETITION FOR A  W RIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Of Counsel
W. J. M ichael C ody 
Attorney General & 

Reporter
State of Tennessee 
450 James Robertson 

Parkway
Nashville, Tennessee 

37219-5025

B eaucham p  E. B rogan*
A lan  M. P arker*
Catherine S, M izell 
The University of Tennessee 
810 Andy Holt Tower 
Knoxville, Tennessee 37996-0184 
(615) 974-3245
G. R ay  B ratton

1620 First Tennessee Bank Building 
165 Madison Avenue 
Memphis, Tennessee 38103
N. R ichard G la ssm a n *
J ohn B arry B urgess*
26 N. Second Street 
Memphis, Tennessee 38103 

Attorneys for Petitioners 
* Counsel of Record

T o m m y  Coley 
532 Smith Lane 
Jackson, Tennessee 38301 

Pro Se Petitioner
October 1985

E . L . M endenhall, Inc., 926 Cherry Street, Kansas City, M o. 64106, (816) 421-3030



TABLE OF CONTENTS

OPINION OF THE COURT OF APPEALS ............. A1
OPINION OF THE DISTRICT COURT _____________A26
FINAL AGENCY ORDER ............ ..... ........... .................A33
INITIAL ORDER OF ADMINISTRATIVE LAW

JUDGE  ........................................................ ..... ............ A3 6
JUDGMENT OF THE COURT OF APPEALS ........... A183
OPINION IN Buckhalter v. Pepsi-Cola Bottlers, Inc.,

768 F.2d 842 (7th Cir. 1985) ...... ................ ....... ....... A185



A1

No. 84-5692

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

ROBERT B. ELLIOTT,
Plaintiff-Appellant, 

v.
THE UNIVERSITY OF TENNESSEE, et al., 

Defendants-Appellees.

On A ppeal from the United States District Court 
for the Western District of Tennessee

Decided and Filed July 9, 1985

Before: K eith and M artin, Circuit Judges; and
Edwards, Senior Circuit Judge.

B oyce F. M artin, Jr., Circuit Judge. Robert B. Elliott 
appeals from an order of the district court granting sum­
mary judgment to the defendants on his claim that the 
defendants violated his civil rights.

Elliott is a minority employee of the University of 
Tennessee Agricultural Extension Service. He has been 
employed by the Service since 1966. On December 18, 
1981, the Dean of the Service advised Elliott that he was 
to be terminated from his job due to inadequate work 
performance, inadequate job behavior, and incidents of 
gross misconduct. On December 22, 1981, Elliott filed an



A2

administrative appeal from the Notice of Pending Ter­
mination under the Tennessee Uniform Administrative 
Procedure Act. On January 5, 1982, Elliott filed his fed­
eral complaint that forms the basis of the present appeal.

Elliott’s federal complaint alleges that in the past 
he made complaints to University of Tennessee officials 
regarding racial discrimination in the treatment of black 
leaders, students, and staff personnel in connection with 
4-H club events and a series of racially derogatory acts 
on the part of University officials. One of Elliott’s major 
complaints was a racial slur made by defendant Coley, 
a Service livestock judge, at an official Service event.

The federal complaint alleges that following Elliott’s 
complaint regarding the Coley incident, defendants 
Downen, Luck, and Shearon (University officials) con­
spired with defendants Murray Truck Lines and Korwin 
to have Elliott terminated from his job. Elliott recently 
had complained to Korwin, shop manager at Murray Truck 
Lines, regarding eight racially insulting signs in windows 
at Murray Truck Lines’ place of business. The complaint 
alleges that the University officials conspired with Korwin 
to secure a letter from Korwin accusing Elliott of referring 
to Mr, Murray as a “ white racist” and threatening him. 
Based on the Korwin letter, Downen placed a letter of 
reprimand in Elliott’s job file.

The complaint also alleges that, because of Elliott’s 
complaint regarding Coley, the University officials con­
spired with defendants Donnell, Johnson, Smith, Hopper, 
and Cathey, all of whom were members of the Agricultural 
Extension Service Committee in the county in which Elliott 
was employed, to have the Committee recommend to 
Downen that Elliott be terminated from his job. Two 
black members of the Committee refused to vote for



A3

Elliott’s removal. All five white members, two of whom 
are related to Coley by marriage, voted for Elliott’s re­
moval.

The complaint next alleges that Elliott’s immediate 
Supervisor, Shearon, and other University officials began 
a harassment campaign by requiring Elliott to produce 
mileage books when white employees were not subject 
to the same requirement; unjustifiably finding fault with 
his work; subjecting him to discriminatory job assign­
ments; attempting to place pretextual supervisory com­
plaints in his personnel file; and falsely accusing him of 
failure to carry out a specific job assignment.

The complaint alleges that at least one of the individual 
defendants was aware that Elliott was active in a federal 
lawsuit seeking to secure the right of blacks to gain mem­
bership in exclusively white country clubs in Gibson and 
Madison County, Tennessee, and that the present defen­
dants’ actions were designed in part to punish him for 
his efforts in that case.

Finally, the complaint alleges that the Service con­
tinues to discriminate against black citizens by refusing 
to implement an effective affirmative action plan; failing 
to integrate its homemaker demonstration clubs and other 
educational activities; refusing to integrate its 4-H clubs; 
refusing to address low minority participation in agricul­
tural programs and community resource development pro­
grams; refusing to eliminate discrimination in promotion, 
training, and continuing education; refusing to eliminate 
discrimination in the establishment and operation of agri­
cultural extension committees; and permitting discrimina­
tion by local white officials against black participants in 
educational programs.



A4

The complaint seeks certification of a class of “persons 
in Tennessee who are similarly situated [as Elliott] and/or 
affected by the policies . . . complained of herein which 
violate not only the rights of [Service employees] . . . 
but also the rights of black infant and adult citizens who 
are intended beneficiaries of [the Service] . . . The 
relief requested includes an injunction restraining the 
University of Tennessee, the Service, the University offi­
cials, and the Committee from continuing the discrim­
inatory practices outlined above. Also requested is a 
preliminary and permanent injunction requiring defen­
dants to cease attempting to discharge, cause the discharge 
of, or otherwise penalize Elliott on the basis of false alle­
gations and other harassing actions. Finally, the complaint 
seeks attorneys’ fees and one million dollars in damages. 
The complaint invokes jurisdiction under 28 U.S.C. §§ 1331 
and 1341. Claims are asserted under 42 U.S.C. §§ 1981, 
1983, 1985, 1986, 1988, 2000d and e and under the first, 
thirteenth, and fourteenth amendments.

On January 19, 1982, the court entered a temporary 
restraining order prohibiting the defendants from taking 
any personnel action against Elliott. On February 23, 
1982, the court withdrew the restraining order to permit 
the parties to proceed through the state administrative 
appeals process. The court emphasized that the with­
drawal of the restraining order did not “ in any fashion 
adjudicate] the merits of this controversy.”

After dissolution of the restraining order, the parties 
proceeded through the Tennessee administrative review 
process. The contested case provisions of the Tennessee 
Code provide for determination of the issues by an admin­
istrative judge who must be an employee of the affected 
agency or of the office of the secretary of state. Tenn. 
Code Ann. § 4-5-102(1) & (4). A  party may move to



A5

disqualify an administrative judge for “bias, prejudice, 
or interest,” Tenn. Code Ann, § 4-5-302(a), the adminis­
trative judge may not be a person who has been involved 
in the investigation or prosecution of the case, Tenn. Code 
Ann. § 4-5-303(a), and the administrative judge may 
not receive ex parte communications, Tenn. Code Ann. 
§ 4-5-304(a). The parties have the right to be represented 
by counsel, Tenn. Code Ann. § 4-5-305 (b), to receive 
notice of the hearing, Tenn. Code Ann. § 4-5-307(a), to 
file pleadings, motions, briefs, and proposed findings of 
fact and conclusions of law, Tenn. Code Ann. § 4-5-308 (a) 
& (b), to request the administrative judge to issue sub­
poenas, Tenn. Code Ann. § 4-5-311 (a), and to examine 
and cross-examine witnesses, Tenn. Code Ann. § 4-5-312 
(b). The administrative judge is bound by the civil 
rules of evidence except that evidence otherwise not 
admissible may be relied upon if it is “of a type com­
monly relied upon by reasonably prudent [people] in 
the conduct of their affairs.” Tenn. Code Ann. § 4-5-313 
(1). An order issued by an administrative judge must 
include conclusions of law and findings of fact. Tenn. 
Code Ann. § 4-5-314 (c). An initial appeal from an ad­
verse decision by the administrative judge is to the agency 
itself or to a person designated by the agency. Tenn. 
Code Ann. § 4-5-315(a). Judicial review of the final 
agency decision may be had by filing a petition for review 
in the state chancery court within sixty days of entry 
of the agency’s order. Tenn. Code Ann. § 4-5-322 (b). 
The chancery court sits without a jury and is limited 
to a review of the administrative record to determine 
whether the agency decision is in violation of constitu­
tional or statutory provisions or is arbitrary, capricious, 
or unsupported by substantial evidence. Tenn. Code Ann. 
§ 4-5-322 (g) & (h). Review of the decision of the chan­
cery court may be had in the Court of Appeals of Ten­
nessee. Tenn. Code Ann. § 4-5-323.



A6

The administrative judge conducted a lengthy hearing 
in which Elliott’s counsel examined nearly one hundred 
witnesses. The University alleged eight separate instances 
of poor job performance and sought approval of its de­
cision to dismiss Elliott. Elliott defended against the 
charges by asserting, inter alia, that the accusations against 
him were racially motivated. The administrative judge 
issued an order upholding four of the eight charges but 
denying approval of the dismissal. Instead, the order di­
rected that Elliott retain his position but be transferred 
to a different county. The decision of the administrative 
judge concluded that he had no jurisdiction to hear El­
liott’s claims of civil rights violations. Nevertheless, the 
claims of racial discrimination were considered “ affirma­
tive defenses” to the University’s charges, and the ad­
ministrative judge made the following finding:

An overall and thorough review of the entire evidence 
of record leads me to believe that employer’s action 
in bringing charges against employee . . . [was] based 
on what it, through its administrative officers and su­
pervisors perceived as improper and/or inadequate 
behavior and inadequate job performance rather than 
racial discrimination. I therefore conclude that em­
ployee has failed in his burden of proof to the claim 
of racial discrimination as a defense to the charges 
against him.

Elliott appealed this decision to the University of Ten­
nessee Vice President for Agriculture, who concluded that 
the University’s actions were not racially motivated and 
rejected the appeal. Neither Elliott nor the University 
filed a petition for review in the state courts.

Eighty-four days after entry of the administrative or­
der, Elliott renewed action on his pending federal com­



A7

plaint. Elliott filed a motion for a temporary restraining 
order to prevent the defendants from transferring Elliott 
to a different county or, to the extent that Elliott already 
had been transferred, to restore him to his previous location. 
Specifically, the motion requested a restraining order be­
cause

said decision of the Administrative Law Judge and the 
agency constituted an abuse of discretion, is contrary 
to law, and is not supported by reliable, probative, and 
substantive evidence. Said Administrative Law Judge 
and agency have demonstrated their unwillingness 
and/or inability to determine objectively and imparti­
ally the constitutional [and federal statutory claims] 
raised by the Plaintiff in his Complaint and therefore, 
said decision should be stayed until this Court can 
make a preliminary determination of the likelihood 
[of success on the merits] since only this Court can 
exercise the Article III powers which are peculiarly 
applicable to those constitutional and Federal claims.

The motion further particularly alleged that the “Admin­
istrative Law Judge’s and Agency’s decision and remedy 
was . . . unconstitutional and unlawful in wrongfully re­
jecting said claims of racial discrimination by plaintiff 
despite clear evidence thereof.”

The University of Tennessee opposed the motion for 
a restraining order and also filed a motion for summary 
judgment on the underlying complaint. Its memorandum 
in opposition to Elliott’s motion and its motion for sum­
mary judgment asserted the same principles. The Uni­
versity claimed that the district court lacked jurisdiction 
to “ review the merits” of the final agency order because 
by state statute review may be had only in the Tennessee 
chancery courts and only on timely petition for review.



A8

The University also asserted that principles of res judicata1 
prevented “relitigation” of the claims of racial discrimina­
tion in federal court.

Elliott responded to the motion for summary judgment 
by arguing that to dismiss his federal claims in deference 
to the final agency order would be to “effectively confer 
Article III power upon an Administrative Law Judge who 
is an agent for the U.T. defendants in this case.” Elliott 
concluded that the “ Court has absolutely no basis upon 
which an award of summary judgment to defendants can 
be predicated.”

On May 12, 1984, the district court granted the Uni­
versity’s motion for summary judgment. The court adopted 
the two grounds of decision urged by the University. Al­
though only the University had moved for summary judg­
ment, the court granted summary judgment in favor of all 
defendants. Elliott then perfected this appeal.

We will assume, for the sake of argument, that Elliott’s 
motion for a temporary restraining order may plausibly be 
read as asking the court to “review the merits” of the 
agency order and that Tennessee’s procedural prerequisites 
somehow prevented a federal court from granting the re­

1.
Res judicata encompasses two forms of preclusion, claim pre­
clusion under which “ final judgment on the merits _ of an 
action precludes the parties or their privies from relitigating 
issues that were or could have been raised in that action,” 
Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 
398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981), Restatement 
(Second) of Judgments § 24 (1982), and issue preclusion, 
under which a decision precludes relitigation of the same 
issue on a different cause of action between the same parties 
once a court decides an issue of fact or law necessary to its 
judgment.

Duncan v. Peck, 752 F.2d 1135, 1138 (6th Cir. 1985). Throughout 
this opinion, we will intend “res judicata” and “rules of preclusion” 
to refer to principles of both issue and claim preclusion.



A9

straining order. Making those assumptions, the most that 
can be said is that the court should not have granted a 
restraining order. That denial of relief, however, would 
not affect the viability of Elliott’s underlying complaint.

Elliott’s complaint does not ask for “review” of a state 
agency order. It asks for an injunction to prevent the de­
fendants from discharging him or “ otherwise penalizing] 
him pursuant to false allegations of inadequate job per­
formance.” The complaint also seeks one million dollars 
in damages. Elliott did not invoke the court’s jurisdiction 
under the administrative review provisions of the Tennessee 
Code. He unambiguously invoked the jurisdiction of the 
federal courts pursuant to 28 U.S.C. § 1331 and 1343 and as­
serted claims under 42 U.S.C. §§ 1981, 1983, 1985, 1986, 
1988, 2000d and e and under the first, thirteenth, and 
fourteenth amendments.2

Because Elliott’s complaint does not ask for “review” 
of the agency order but does ask for a de novo federal 
determination that arguably could undermine the validity 
of the state order, the court correctly noted that an issue 
of res judicata arises. The court’s analysis of the res 
judicata issue consisted of the following:

2. The University’s argument regarding the effect of the 
Tennessee review provisions may plausibly be read as an implicit 
articulation of the argument that the existence of a state remedy 
precludes resort to section 1983. That argument was rejected 
by the Supreme Court more than twenty years ago. See Monroe 
v. Pape, 365 U.S. 167 (1961); see also Chandler v. Roudebush, 
425 U.S. 840 (1976) (Title VII plaintiff who has pursued ad­
ministrative remedies is entitled to trial de novo in federal 
court; Patsy v. Board of Regents, 457 U.S. 496 (1982) (exhaustion 
of state administrative remedies is not a prerequisite to main­
tenance of a section 1983 action). Justice Frankfurter’s dissent 
in Monroe took issue with the majority’s principle, but his view 
has been resuscitated, in a constitutionalized form, only in the 
area of procedural due process. See Parratt v. Taylor, 451 U.S.
527 (1981); Hudson v. Palmer, ...... U.S.......... , 104 S. Ct. 3194
(1984); see also Wagner v. Higgins, 754 F.2d 186, 193 (6th Cir. 
1985) (Contie, J., concurring) (Parratt does not apply to viola­
tion of substantive constitutional rights).



A10

This Court is convinced that the civil rights statutes 
set forth in Title 42 of the United States Code 
. . . were not intended to afford the plaintiff a means 
of relitigating what plaintiff has heretofore litigated 
over a five-month period. Therefore, this Court should 
dismiss the case upon the doctrine of res judicata.

Unfortunately, the parties failed to advise the court 
of several cases which have rejected that position. In 
Kremer v. Chemical Construction Co., 456 U.S. 461 (1982), 
the Court considered the relationship between the guaran­
tee of a trial de novo in Title VII actions3 and the prin­
ciples of res judicata and federal-state comity as embodied 
in 28 U.S.C. § 1738. The Court held:

No provision of Title VII requires claimants to pursue 
in state court an unfavorable state administrative ac­
tion. . . . While we have interpreted the “ civil action” 
authorized to follow consideration by federal and state 
administrative agencies to be a “ trial de novo,” Chan­
dler v. Roudebush, 425 U.S. 840 (1976), . . . neither 
the statute nor our decisions indicate that the final 
judgment of a state court is subject to redetermination 
at such a trial.

Id. at 469-70 (emphasis in original). In a footnote that 
accompanied this passage, the Court made explicit that 
which was implicit in its emphasis on the phrase “final 
judgment of a state court.”

3. The University makes the argument that “ this is not a 
Title VII action” because, the University contends, Elliott’s federal 
court complaint was untimely and he has not received a right 
to sue letter. Elliott asserts that the complaint was timely and 
that he has received a right to sue letter. For purposes of this 
appeal, we must treat this action as a Title VII action because 
the complaint unambiguously invokes Title VII and because the 
district court made no finding or conclusion with respect to time­
liness or Elliott’s receipt of a right to sue letter.



A l l

EEOC review of discrimination charges previously re­
jected by state agencies would be pointless if the fed­
eral courts were bound by such agency decisions. . . . 
Nor is it plausible to suggest that Congress intended 
federal courts to be bound further by state adminis­
trative decisions than by decisions of the EEOC. Since 
it is settled that decisions by the EEOC do not pre­
clude a trial de novo in federal court, it is clear that 
unreviewed administrative determinations by state 
agencies also should not preclude such review even 
if such a decision were to be afforded preclusive effect 
in a state’s own courts.

Kremer, 456 U.S. at 470 n.7. The Court thus drew a 
sharp distinction between state court judgments, which 
are entitled to deference under the res judicata principles 
of section 1738, and unreviewed state administrative deter­
minations which are not. See also id. at 487 (Blackmun, 
J., with Brennan & Marshall, JJ., dissenting) (recognizing 
distinction made by majority); id. at 508-09 (Stevens, J., 
dissenting) (same). That is precisely the distinction that 
this court drew in Cooper v. Philip Morris, Inc., 464 F.2d 
9 (6th Cir. 1972), which was cited with approval by the 
majority in Kremer.

The University recognizes, as it must, the general prin­
ciple established by footnote 7 in Kremer. That principle, 
however, is not to be applied, the University argues, when 
the unreviewed administrative decision was rendered by 
an agency that is authorized to grant full relief, such 
as reinstatement and backpay, and that provides the liti­
gants with elaborate adjudicative procedures. The Uni­
versity finds support for this argument in two aspects 
of the Kremer opinion. First, the University argues that 
the Court in footnote 7 implicitly equated “state adminis­
trative agency” with an agency that possesses powers sim­



A12

ilar to those possessed by the federal Equal Employment 
Opportunity Commission, Because the Commission has 
exclusively administrative rather than adjudicatory au­
thority, the argument goes, the rule of non-preclusion an­
nounced in footnote 7 may be applied only to the unre­
viewed decisions of agencies that possess only administra­
tive authority. Second, the University notes that in foot­
note 26 of Kremer, the Court cites United States v. Utah 
Construction & Mining Co., 384 U.S. 394 (1966), which 
states that res judicata principles apply to the decision 
of an administrative agency acting in “a judicial capacity.” 
This citation is said to bolster the University’s proposed 
distinction between the res judicata effect to be given 
the decision of an agency acting in a judicial versus an 
administrative capacity.

Both rationales for the University’s distinction are 
without merit. First, the Kremer Court itself made plain 
in footnote 7 that its rule of non-preclusion with respect 
to unreviewed state administrative decisions applies to the 
decisions of those agencies that have full enforcement au­
thority and provide full adjudicative procedures as well 
as to the decisions of agencies that lack those attributes. 
The Court cited four lower court decisions in support 
of the rule that it announced. Of those four cases, three 
approved a rule of non-preclusion even though the state 
agency had full enforcement authority and provided elab­
orate adjudicative procedures. See Garner v. Giarrusso, 
571 F.2d 1330 (5th Cir. 1978); Batiste v. Furnco Construc­
tion Corp., 503 F.2d 447 (7th Cir. 1974), cert, denied, 420 
U.S. 928 (1975); Cooper v. Philip Morris, Inc., 464 F'.2d 
9 (6th Cir. 1972). The Court in Kremer certainly did 
not have in mind, in footnote 7, the distinction urged 
by the University.

The University is also unaided by footnote 26. The 
context of the Court’s citation of Utah Construction makes



A13

evident that the Court did not intend to adopt the Uni­
versity’s proposed distinction. The Court cited Utah Con­
struction in the course of stating that the New York ad­
ministrative procedure, in combination with state judicial 
review of the administrative decision, did not offend due 
process. Thus, the citation of Utah Construction was in 
the context of a factual situation—a reviewed administra­
tive decision—different from that implicated in the rule 
of non-preclusion announced in footnote 7—-an unreviewed 
administrative decision. The citation also was made in 
the context of a legal issue—whether the procedures offend 
due process—different from that implicated in footnote 
7—whether res judicata should apply. Footnote 26 in 
Kremer thus lends no support to the University’s argu­
ment.

Finally, we note that in a post-Kremer Title VII deci­
sion this Court refused to give preclusive effect to the 
unreviewed decision of a state administrative agency that 
possessed the attributes which the University argues should 
exempt the agency from the dictates of Kremer. See 
Smith v. United Brotherhood of Carpenters and Joiners, 
685 F.2d 164, 168 (6th Cir. 1982). No argument advanced 
by the University has encouraged us to deviate from that 
decision.

The district court’s holding that Elliott’s Title VII 
claim is barred by res judicata must fall in light of the 
unambiguous principle enunciated in Kremer. The more 
difficult question is whether the court erred in dismissing 
Elliott’s claims asserted under 42 U.S.C. §§ 1981, 1983, 
1985, 1986, and 1988. We conclude that the court erred 
in dismissing those claims.4

4. Throughout the remainder of this opinion, we will refer 
primarily to the claims asserted under section 1983. Our reason­
ing and conclusion apply equally to the other statutory claims 
asserted by Elliott.



A14

In Loudermill v. Cleveland Board of Education, 721
F.2d 550 (6th Cir. 1983), affd, .......  U.S. ....... , 105 S.
Ct. 1487 (1985), we held that an unreviewed state adminis­
trative adjudication has no claim preclusive effect in a 
subsequent section 1983 action in federal court. Id. at 
559. In dictum, the Loudermill panel majority drew a 
distinction between the claim preclusive effect and the 
issue preclusive effect of a prior, unreviewed state ad­
ministrative adjudication, stating that such an adjudication 
should be accorded issue preclusive effect in section 1983 
actions in federal court. See id. at 559 n.12. The court 
cited United States v. Utah Construction & Mining Co., 
384 U.S. 394 (1966), to support its view with respect to 
issue preclusion.

Utah Construction does not support the broad principle 
advanced in dictum in Loudermill. The Utah Construction 
Court stated:

When an administrative agency is acting in a judicial 
capacity and resolves disputed issues of fact properly 
before it which the parties have had an adequate 
opportunity to litigate, the courts have not hesitated 
to apply res judicata to enforce repose.

384 U.S. at 422. This language certainly lends support 
to the view advanced in Loudermill. That language, how­
ever, must be read in its proper context. Utah Construc­
tion involved the collateral estoppel effect to be given 
a decision of the federal Advisory Board of Contract Ap­
peals in a subsequent action in the Court of Claims. See 
284 U.S. at 400. The Court did not address the deference 
that federal courts should give to the unreviewed findings



A15

of state administrative agencies in subsequent federal civil 
rights actions.®

The question whether a prior, unreviewed determina­
tion of a state administrative agency must be given pre­
clusive effect in a subsequent federal civil rights action 
is a difficult issue that requires a careful analysis of Su­
preme Court teachings. The starting point for this analysis 
is Allen v. McCurry, 449 U.S. 90 (1980) and Migra v.
Warren City School District Board of Education,.... . U.S.
....... , 104 S. Ct. 892 (1984). These cases held that a federal
court adjudicating a section 1983 action must accord the 
same preclusive effect to the decision of a state court 
as the decision would be accorded by other courts of that 
state. Neither Allen nor Migra, however, requires that 
we give preclusive effect to the unreviewed findings of 
a state administrative agency. Although Allen and Migra 
recognized that the purpose of section 1983 was to provide 
a civil rights claimant with a federal right in a federal 
forum, the Court concluded that the legislative history 
of section 1983 was not so unequivocal as to effect an 5

5. All of the cases the Court in Utah Construction cited in 
support of its proposition involved the application of preclusion 
principles to the prior determinations of federal agencies. See 
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940) 
(decision of the National Bituminous Coal Commission); Hanover 
Bank v. United States, 285 F.2d 455 (Ct. Cl. 1961) (decision of 
the Tax Court); Fairmont Aluminum Co. v. Commissioner, 222 
F.2d 622 (4th Cir. 1955) (same); Seatrain Lines, Inc. v. Pennsyl­
vania R. Co., 207 F.2d 255 (3d Cir. 1953) (decision of Interstate 
Commerce Commission). The Court included a “see also” cite 
to a diversity case that applied preclusion rules to the decision 
of a private arbitration panel. See Goldstein v. Doft, 236 F. 
Supp. 730 (S.D.N.Y. 1964), aff’d, 353 F.2d 484 (2d Cir. 1965), 
cert, denied, 383 U.S. 960 (1966).

For the reasons noted earlier in this opinion, we do not 
believe the Court at footnote 26 of Kremer v. Chemical Construc­
tion Corp., 456 U.S. 461 (1982), meant to authorize the applica­
tion of Utah Construction to the unreviewed decisions of a state 
administrative agency when the claimant subsequently asserts 
a federal right in a federal court.



A16

implied repeal of 28 U.S.C. § 1738 and the common law 
rules of preclusion that section 1738 directed the federal 
courts to respect. See Allen, 449 U.S. at 99; Migra, 104 
S. Ct. at 897.

The conflict between section 1983 and section 1738 
that the Court resolved in Allen and Migra is not present 
when a federal court considers whether to give preclusive 
effect to the unreviewed findings of a state administrative 
agency. Section 1738 provides in relevant part:

Such Acts, records and judicial proceedings or copies 
thereof, so authenticated, shall have the same full faith 
and credit in every court within the United States 
. . .  as they have by law or usage in the courts 
of such State . . .  from which they are taken.

The “Acts, records and judicial proceedings” referred to 
in the statute are the “Acts of the legislature of any 
State” and the “records and judicial proceedings of any 
court of any such State,” 28 U.S.C. § 1738 (emphasis 
added). The statute does not require federal courts to 
defer to the unreviewed findings of state administrative 
agencies. See Ross v. Communications Satellite Corp., 759 
F.2d 355, 361 n.6 (4th Cir. 1985); Moore v. Bonner, 695 
F.2d 799, 801 (4th Cir. 1982); see also Gargiul v. Tompkins, 
704 F.2d 661, 667 (2d Cir. 1983), vacated on other grounds,

U.S.......... , 104 S. Ct. 1263, on remand, 739 F.2d 34
(1984) ;6 Patsy v. Florida International University, 634 F.2d 
900, 910 (5th Cir. 1981) (en banc), rev’d on other grounds 
sub nom. Patsy v. Board of Regents, 457 U.S. 496 (1982); 
Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 
n.l (2d Cir. 1978) (per curiam); Mauritz v. Schwind, 101 
S.W.2d 1085, 1089-90 (Tex. Civ. App. 1937). Cf. Thomas 
v. Washington Gas Light Co., 448 U.S. 261, 281-83 (1980)

6. See footnote 9 infra.



A17

(plurality opinion) ( “ [Tjhe critical differences between 
a court of general jurisdiction and an administrative agency 
with limited statutory authority forecloses the conclusion 
that constitutional rules applicable to court judgments 
are necessarily applicable to workmen’s compensation 
awards.” ) 7

The conclusion that section 1738 does not require that 
we give preclusive effect to the findings of a state adminis­
trative agency does not end the inquiry. Common law 
principles may require that we apply rules of preclusion.
See McDonald v. City of West Branch, ..... . U.S. .....
....... , 104 S. Ct. 1799, 1802 (1984). In determining whether
to create or apply a judge-made rule of preclusion in 
the circumstances presented by this case, it is appropriate 
to consider the question in light of the legislative history 
and purpose of section 1983.

7. The Court in Thomas v. Washington Gas Light Co., 448 
U.S. 261 (1980) (plurality opinion), ultimately held that “Full 
faith and credit must be given [by the District of Columbia] to 
the determination that the Virginia [Workers’ Compensation] Com­
mission had the authority to make . . . .” Id. at 282-83. It is 
unclear whether the Court believed this result was required by 
the full faith and credit clause of the Constitution, Art. IV, § 1, 
or the full faith and credit statute, 28 U.S.C. § 1738. The full faith 
and credit clause requires each state to give full faith and credit 
to the “judicial Proceedings” of another state. The full faith and 
credit statute requires every court within the United States to 
give full faith and credit to the judicial proceedings of any 
court of another state. Although the Thomas Court cited section 
1738, the Court’s substantive discussion focused on the full faith 
and credit clause, Id. at 279, and on the applicable “constitutional 
rules,” id. at 282. The Court therefore must have: (1) re­
garded the District of Columbia as a “state” subject to both the 
full faith and credit clause and the full faith and credit statute; 
or (2) not considered or ruled on the difference in language in 
the clause and the statute. If the former, the Thomas case is in­
applicable here because a federal court is bound only by the stat­
ute, which requires that we give full faith and credit only to the 
judicial proceedings of state courts. If the latter, we are unaware 
of any dispositive Supreme Court decision. We therefore adopt 
the rule clearly articulated by the Fourth Circuit.



A18

In Allen and Migra, the Court stated in dictum that 
the legislative history and purpose of section 1983 could 
not override “ traditional rules of preclusion.” See Allen, 
449 U.S. at 99; Migra, 104 S. Ct. at 897. We do not 
believe that the Court’s language may be read to prevent 
consideration of the history and purpose of section 1983 
when a court is considering not whether to override a 
common law rule of preclusion but whether to develop 
such a rule in the first instance. See McDonald v. City
of West Branch, .......  U.S.......... , ..... 104 S. Ct. 1799,
1803,1804 (1984).

As noted previously, the Supreme Court has stated 
that common law principles of res judicata may be appli­
cable when an administrative agency “ is acting in a judi­
cial capacity.” See United States v. Utah Construction 
& Mining Co., 384 U.S. 394, 422 (1966). The rule in 
Utah Construction has been applied primarily to the ad­
ministrative decisions of federal agencies when principles 
of res judicata are asserted in a subsequent federal court 
proceeding. Rarely have courts considered whether 
a state administrative decision is entitled to preclusive 
effect when a claimant asserts a federal right in a subse­
quent federal action other than one based upon section 
1983. Consequently, the question is not whether section 
1983 can override an existing common law rule of preclu­
sion, but whether we ought now to develop and apply 
such a rule in a section 1983 action.

The legislative history and purpose of section 1983 
has been summarized by the Supreme Court:

The legislative history [of section 1983] makes evident 
that Congress clearly conceived that it was altering 
the relationship between the States and the Nation 
with respect to the protection of federally created



A19

rights; it was concerned that state instrumentalities 
could not protect those rights; it realized that state offi­
cers might, in fact, be antipathetic to the vindication 
of those rights; and it believed that these failings 
extended to the state courts.

. . . The very purpose of § 1983 was to interpose 
the federal courts between the States and the people, 
as guardians of the people’s federal rights—to protect 
the people from unconstitutional action under color 
of state law, “whether that action be executive, legis­
lative, or judicial.” Ex parte Virginia, 100 U.S. [339, 
346 (1879)].

Mitchum v. Foster, 407 U.S. 225, 242 (1972). This view 
of the legislative purpose of section 1983 echoed the 
view expressed in Monroe v. Pape, 365 U.S. 167 (1961):

It was not the unavailability of state remedies but 
the failure of certain states to enforce the laws with 
an equal hand that furnished the powerful momentum 
behind [section 1983].

. . .  It is abundantly clear that one reason the legis­
lation was passed was to afford a federal right in 
federal courts because, by reason of prejudice, passion, 
neglect, intolerance or otherwise, state laws might not 
be enforced and the claims of citizens to the enjoy­
ment of rights, privileges, and immunities guaranteed 
by the Fourteenth Amendment might be denied by 
the state agencies.

Id. at 174-75, 180 (emphasis added). The legislative his­
tory and purpose of section 1983, as explicated by the 
Supreme Court, is incompatible with application of a ju­
dicially fashioned rule of preclusion that would bind a



A20

court considering a section 1983 claim to the unreviewed 
findings of a state administrative agency. Congress pro­
vided a civil rights claimant with a federal remedy in 
a federal court, with federal process, federal factfinding, 
and a life-tenured judge. The Court in Allen and Migra 
did not disagree with the reading of the legislative history 
and purpose of section 1983 as explained in Mitchum v. 
Foster and Monroe v. Pape. See Allen, 449 U.S. at 98- 
99; Migra, 104 S. Ct. at 897. The conflict that animated 
the decisions in Allen and Migra—the conflict between 
section 1983 and section 1738 and common law rules of 
preclusion—is not present when the prior adjudication was 
conducted in a state administrative agency rather than 
a state court. In the absence of such a conflict, we 
decline to undermine the purpose of section 1983 by cre­
ating a rule that would give preclusive effect to the prior, 
unreviewed decision of a state administrative agency.

At least implicit in the legislative history of section 
1983 is the recognition that state determination of issues 
relevant to constitutional adjudication is not an adequate 
substitute for full access to federal court. State adminis­
trative decisionmakers, unlike federal judges, generally 
do not enjoy life tenure. Because they are subject to 
immediate political pressures from which federal judges 
are immune, state administrative decisionmakers encounter 
more difficulty in achieving the broad perspective neces­
sary to approach sensitively the issues raised by those 
whose claims often are dramatically anti-majoritarian. The 
importance of access to a decisionmaker who is insulated 
from majoritarian pressure is particularly important in 
those fact-intensive cases, such as race discrimination cases, 
in which factual findings of motive and intent play major 
roles in the litigation.



A21

Of course, this argument has been rehearsed before 
in the context of the debate over the forum allocation 
decision as between federal and state courts. See Neu- 
borne, The Myth of Parity, Harv. L. Rev. 1105 (1977). 
The argument is no less valid for being repeated here. 
Although similar arguments for denying res judicata effect 
to state court judgments were rejected in Allen and Migra, 
that rejection, as we have noted, was based upon the 
congressional directive embodied in section 1738. That 
directive is not applicable here, and the very real differ­
ences between a state and federal forum legitimately play 
a role in the decision whether to create a rule that would 
give preclusive effect to the unreviewed findings of a 
state administrative agency.

Moreover, there are significant differences between 
the state judicial and administrative forums that counsel 
against federal court deference to the decisions of the 
latter even though Congress has required deference to 
the decisions of the former. Primary among these differ­
ences is the process for selecting the decisionmaker. State 
court judges, like federal judges, have been selected 
through a political process that places a premium on the 
candidate’s ability to make difficult choices in the face 
of competing, often irreconcilable, highly desirable goals. 
In antiquarian terms, the political selection process places 
a premium on the candidate’s practical judgment. By 
contrast, the process for selecting administrative decision­
makers is bureaucratic rather than political. As a result, 
the selection process places a premium on technical com­
petence, narrowly conceived, rather than practical judg­
ment. The candidate generally is expected to apply one 
regulatory scheme to a narrow range of possible factual 
situations. Consequently, the administrative decision­
maker, unlike the state or federal judge, is not selected



A22

on the basis of his or her ability to apply a broad, range 
of principles to an ever-broadening range of social conflicts 
and to exercise the practical judgment necessary to reach 
a just result in a particular constitutional case. Although 
an agency decision generally is subject to review in the 
state’s courts, the deferential standard of review employed 
is not adequate fully to protect federal rights in light 
of the often fact-intensive nature of the constitutional in­
quiry.

The differences between the nature of the state ad­
ministrative and federal judicial forums compel us to con­
clude that, regardless of the similarities in the formal 
procedures used in those forums, according preclusive ef­
fect to unreviewed state administrative determinations is 
incompatible with the full protection of federal rights en­
visioned by the authors of section 1983.

Our discussion of the differences between administra­
tive and judicial forums should not be read as doubting 
the worth of state administrative determination of civil 
rights issues. Our rule ultimately is one that encourages 
resort to speedy, efficient state administrative remedies 
and thus maximizes the choices of forum available to the 
litigants. If the claimant prevails before the administra­
tive agency, the defendant may appeal to the state courts 
and thus, pursuant to the rule in Allen, Migra, and Kremer, 
preclude federal court intervention. If the claimant loses 
before the agency, the claimant may either pursue an 
appeal in the state courts or bring an action in federal 
court. The rule of non-preclusion maximizes the forum 
choices by encouraging the claimant to pursue administra­
tive remedies when, if rules of preclusion were applicable, 
the claimant would forego the administrative adjudication 
and proceed immediately to federal court. See McDonald 
v, City of West Branch, .... . U.S.......... , ....... , 104 S. Ct.



A23

1799, 1804 n .ll (1984); Gargiul v. Tompkins, 704 F.2d 661,
667 (2d Cir. 1983), vacated on other grounds, .......  U.S.
....... , 104 S. Ct. 1263, on remand, 739 F.2d 34 (1984) ;8
Moore v. Bonner, 695 F.2d 799, 802 (4th Cir, 1982). Of 
course, it is the province of Congress, not the courts, to 
make forum allocation decisions. When the issue comes 
to us in the form of the question whether to create a 
common law rule of preclusion, we have no choice but to 
make the decision that best comports with reason and the 
relevant statutory scheme. As we have shown, the legis­
lative history of section 1983 supports, if it does not com­
pel, the result we reach.

A  rule denying preclusive effect to an unreviewed 
state administrative determination in a subsequent section 
1983 action also has the salutary effect of preserving 
congruence between the rules of preclusion in Title VII 
and section 1981 (or 1983) actions. Claims under these 
statutes often are asserted in the same lawsuit. The Su­
preme Court has made clear that an unreviewed state 
administrative determination will not preclude later resort 
to Title VII, and we can find no reason why a different 
rule should apply to claims under section 1981 or 1983. 
One commentator has observed:

Application of preclusion as to part of the case saves 
no effort, does not prevent the risk of inconsistent 
findings, and may distort the process of finding the 
issues. The opportunity for repose is substantially 
weakened by the remaining exposure to liability. In­
sistence on preclusion in these circumstances has little 
value, and more risk than it may be worth.

18 C. Wright, A. Miller & E. Cooper, Federal Practice 
and Procedure § 4471 at 169 (Supp. 1985). Although

8. See footnote 9 infra.



A24

this rationale for a rule of non-preclusion applies only 
when a section 1981 or 1983 claim is asserted together 
with a Title VII claim, the joining of those claims occurs 
in a non-trivial number of cases.

The decision we reach today is at odds with the result 
reached in other circuits; the existing plethora of views 
on the issue makes conflict inevitable. See, e.g., Zanghi 
v. Incorporated Village of Old Brookville, 752 F.2d 42, 
46 (2d Cir. 1985) (giving preclusive effect to a state ad­
ministrative determination on authority of Utah Construc­
tion); Gargiul v. Tompkins, 704 F.2d 661, 667 (2d Cir. 
1983) (not giving preclusive effect to a state administra­
tive determination because the claimant had not 
“ cross [ed] the line between state agency and state judicial 
proceedings” ; citing Keyse v. California Texas Oil Corp., 
590 F.2d 45, 47 n.l (2d Cir. 1978)), vacated on other
grounds, ...... . U.S. ....... , 104 S. Ct. 1263, on remand, 739
F.2d 34 (1984) ;9 Moore v. Bonner, 695 F.2d 799, 801-02 
(4th Cir. 1982) (not giving preclusive effect to state ad­
ministrative determination because contrary rule would 
encourage claimants to bypass agency remedies); Steffen 
v. Housewright, 665 F.2d 245, 247 (8th Cir. 1981) (per 
curiam) (purporting to give preclusive effect to state ad­
ministrative determination, but holding that agency’s find­

9. The Supreme Court vacated Gargiul and remanded the 
case in light of Migra. On remand, the Second Circuit panel held, 
without analysis, that Migra barred all the claims asserted by 
the plaintiff. We believe that the principle for which we cite 
the original panel opinion in Gargiul is still good law. The orig­
inal panel had held, in addition to the principle for which we cite 
the case, that a prior state court proceeding does not bar federal 
court consideration of constitutional claims not actually litigated 
and determined in the state court proceeding. It is the latter 
principle that was rejected by the Court in Migra and for which 
the original Gargiul opinion was most likely vacated. There is 
nothing in Migra to cause the panel on remand to have ques­
tioned its holding with respect to an unreviewed state adminis­
trative decision.



A25

ings may be disregarded if they are “ clearly erroneous” ); 
Patsy v. Florida International University, 634 F.2d 900, 
910 (5th Cir. 1981) (en banc) (stating that state adminis­
trative determinations “carry no res judicata or collateral 
estoppel baggage into federal court” ), rev’d on other 
grounds sub nom. Patsy v. Board of Regents, 457 U.S. 
496 (1982); Anderson v. Babb, 632 F.2d 300, 306 n.3 (4th. 
Cir. 1980) (per curiam) (not giving preclusive effect to 
a state administrative determination because of the “deli­
berately intended political composition of the tribunal” ); 
Taylor v. New York City Transit Authority, 433 F.2d 665, 
670-71 (2d Cir. 1970) (giving preclusive effect to state 
administrative determination on authority of workers’ com­
pensation cases decided on the basis of full faith and cred­
it clause). The analysis used and result reached in this 
opinion attempt to make sense of a complex area of the 
law and to remain faithful to both the teachings of the 
Supreme Court and the intent of Congress as manifested 
in section 1983 and its history.

The judgment of the district court is reversed.

In light of this disposition, the appellees’ requests for 
attorneys’ fees and costs for defense of a frivolous appeal 
are denied. Elliott shall recover the costs of this appeal.



A26

(Filed May 12, 1984)

IN THE UNITED STATES DISTRICT COURT 
FOR THE W ESTERN DISTRICT OF TENNESSEE 

EASTERN DIVISION

No. 82-1014

ROBERT B. ELLIOTT, 
Plaintiff,

vs.
THE UNIVERSITY OF TENNESSEE, ET AL„ 

Defendants.

MEMORANDUM DECISION ON DEFENDANTS’ 
AM ENDED MOTION FOR SUMMARY JUDGMENT

This is an action for preliminary and permanent in­
junctive relief and $1,000,000.00 in damages pursuant to 
42 U.S.C. §1983, and Title VI and Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. §§2000(e), 
et seq., brought by Robert B. Elliott, a nontenured faculty 
member with the rank of Associate Agricultural Extension 
Agent of The University of Tennessee’s Agricultural Ex­
tension Service (AES), now assigned to its Shelby County 
office.

Plaintiff alleges that defendants have violated his civil 
rights on the basis of race, 42 U.S.C. §1981, and have 
conspired to deprive him of civil rights under 42 U.S.C. 
§§1985 and 1986. In addition to his individual action, 
plaintiff seeks to have this action certified and maintained 
as a class action for which he seeks injunctive and declara­
tory relief from discrimination on the basis of race.



A27

When the plaintiff filed this action in December of 
1981, the dean of the AES had written to plaintiff stating 
that a due process hearing would be conducted under 
the Contested Case Provisions of the Tennessee Uniform 
Administrative Procedures Act (UAPA), T.C.A. §4-5-301, 
et seq., to determine whether or not plaintiff’s employment 
should be terminated on the basis of gross misconduct, 
inadequate work performance, and improper job behavior. 
Because this action was filed prior to any due process 
hearing in this employment disciplinary matter, the Uni­
versity defendants moved the Court to dismiss on the 
basis, inter alia, that this civil rights action was premature 
and was not ripe for judicial review.

Initially, this Court entered a temporary restraining 
order which was lifted later by Judge Wellford on March 
29, 1982, when he ruled that the defendants would not 
be restrained from taking job action against plaintiff, in­
cluding termination, after a full and adequate hearing.

After dissolution of the temporary restraining order, 
a UAPA hearing was convened in Jackson, Tennessee, 
on April 26, 1982. It continued with various recesses until 
its conclusion five months later on September 29, 1982. 
The administrative record consists of 55 volumes of tran­
script containing over 5,000 pages of the testimony of over 
100 witnesses and 153 exhibits. Plaintiffs employment 
has never been interrupted and the final UAPA order 
requires that plaintiff’s employment continue.

The initial order of the Administrative Law Judge 
(ALJ), a ninety-six-page document containing extensive 
findings of fact and conclusions of law, was entered on 
April 4, 1983, in accordance with T.C.A. §4-5-314 (b). It 
ruled that the agency proved four of the eight charges 
filed against plaintiff, but failed to prove four of the



A28

charges. The ALJ also ruled that the plaintiff failed to 
prove, as a defense, that the defendants’ motive in seeking 
plaintiffs discharge was racial.

Instead of ordering that plaintiff be terminated, the 
ALJ ordered that the employee be reassigned to a dif­
ferent work station for a one-year period and that plain­
tiff be given new supervisors. Previously, plaintiff was 
assigned in the Madison County Office of the AES under 
the supervision of the Extension Leader, Curtis Shearon.

Both plaintiff and the agency filed petitions for re­
consideration of the initial order, which were overruled. 
Thereafter, plaintiff appealed the initial order, pursuant 
to T.C.A. §4-5-315, to Dr. W. W. Armistead, University 
of Tennessee Vice President for Agriculture, who, on Au­
gust 1, 1983, filed the final order in the UAPA case. Dr. 
Armistead affirmed and incorporated the initial order by 
reference and held, in part:

My review of the record [the ALJ ruling] in this 
case convinces me that it is supported by the evi­
dence, and that no error was committed by the Ad­
ministrative Judge in reaching such decision. I am 
also convinced from my review of the record that 
the action of the Extension Service in proposing the 
termination of employee’s services was not motivated 
by employee’s race but by a desire to terminate 
employee for what the Extension Service sincerely 
believed to be inadequate job performance and inade­
quate job behaviour. The lengthy due process hear­
ing afforded employee and the lengthy hearing record, 
which has been filed with me, are ample evidence 
of such fact. [Attachment C, Plaintiff’s Motions].

In accordance with such final order, plaintiff, on 
August 31, 1983, was transferred for one year to Shelby



A29

County. Plaintiff was not reclassified but remains in his 
same status as a nontenured faculty member, with the 
same rank, same salary, and same benefits as before. 
The only change ordered by the final order was a change 
of work station for one year and a change of supervisors, 
approximately 80 miles distance from his former station.

Plaintiff did not seek a stay of the final order from 
Vice President Armistead, even though such stay is pro­
vided for in the UAPA, T.C.A. §4-5-316. More signif­
icantly, plaintiff did not seek judicial review of the UAPA 
final order under T.C.A. §4-5-322, which requires that 
a petition for judicial review must be filed in chancery 
court within 60 days after the entry of the final order.

Instead, plaintiff delayed eighty-four days after entry 
of the final order and filed the pending action in this 
Court, a petition for a TRO and preliminary injunction 
or, alternatively, a stay of the final agency order almost 
two months after plaintiffs transfer to Shelby County 
was complete and effective, in an attempt to restrain 
what had already occurred.

Plaintiff attacks the merits of the August 1, 1983 final 
UAPA agency order, claiming that the final administra­
tive order is arbitrary, retaliatory, wrongful, illegal, har­
assing, unnecessary and damaging to his reputation. How­
ever, since plaintiff did not appeal timely to the proper 
court, the merits of the August 1, 1983 final order are 
not reviewable here in this Court and that proceeding is 
res judicata to any attack on the merits of that order in 
this, or any other, court.

It is defendants’ position that summary judgment is 
proper in favor of the University of Tennessee defendants 
for the following reasons.



A30

1. In so far as the plaintiff seeks to have this Court 
serve as an appellate tribunal over the IJAPA hearing, 
this Court lacks appellate jurisdiction to review the merits 
of the final order of the UAPA hearing which ruled upon 
the same issues present in this case. Jurisdiction for 
judicial review of a final UAPA order is vested in the 
Tennessee chancery courts under T.C.A. §4-5-322.

2. The final order of August 1, 1983 is res judicata, 
which bars any attempt to attack the merits of that order.

Exclusive jurisdiction to judicially review the merits 
of a final order entered in a UAPA contested case is in 
the Tennessee chancery courts. United Inter-Mountain 
Telephone Company v. Public Service Commission, 555 
S.W.2d 389 (Tenn. 1977): T.C.A. 4-5-322(a).

It is a hornbook principle that judicial review of 
the merits of a final administrative decision is proper only 
in accordance with the statute which provides for judicial 
review. Plaintiff’s post administrative hearing motions 
for a TRO, a stay of the UAPA final order, and prelim­
inary injunction are obvious efforts to attack the merits 
of this UAPA contested case decision and should have 
been filed, if at all, in chancery court within the pre­
scribed 60-day period. The final agency order so stated:

A petition for reconsideration of this order may be 
filed within ten (10) days after entry, as set forth 
in T.C.A. §4-5-317. Judicial review of such order 
may be had by filing a petition for review in a Chan­
cery Court having jurisdiction within sixty (60) days 
from the entry of this order, as provided by T.C.A. 
§4-5-322.

Plaintiff deliberately chose to contest the disciplinary 
charges against him by means of a UAPA contested case



A31

in accord with T.C.A. §4-5-301, et seq. Having invoked 
the due process provisions of the UAPA through a final 
agency order, plaintiff was required to follow the require­
ments of the Tennessee law to review the administrative 
final order.

Moreover, even in a proper case where federal courts 
have jurisdiction, the federal courts are not the proper 
forum to review the merits of an administrative disciplin­
ary proceeding against a government employee. Gross v. 
University of Tennessee, 448 F.Supp. 245 (W.D. Tenn. 
1978), affd, 620 F.2d 109 (6th Cir. 1980).

Plaintiff makes no claim of denial of procedural due 
process. Nor can he in light of the long exhaustive evi­
dentiary hearing in which plaintiff presented more than 
ninety witnesses, and cross-examined some of the agency’s 
witnesses for more than thirty hours each. Plaintiff clearly 
has received full protection in this due process hearing, 
as required in Board of Regents v. Roth, 408 U.S. 564 
(1972), and Perry v. Sindermann, 408 U.S. 593 (1972).

That this court simply is the wrong place to attack 
such a transfer of job location or change of supervisors 
was made clear by the United States Supreme Court in 
Bishop v. Wood, 426 U.S. 349 (1976). In Ramsey v. TV A, 
502 F.Supp. 230, 232 (E.D. Tenn. 1980), the court said:

This Court is not designed to sit in judgment of per­
sonnel decisions best left to those with expertise in 
personnel matters and familiarity with the workings 
and problems of the agency concerned.

Having demonstrated that this Court is not the forum 
in which the plaintiff may seek appellate review of the 
administrative ruling, the Court now wishes to treat the 
question pertaining to res judicata.



A3 2

When plaintiff first filed this case, the personnel dis­
ciplinary hearing by the administrative agency had not 
been conducted. Plaintiff, therefore, sought to forestall 
the administrative hearing upon his alleged misconduct 
and he sought class relief whereby the Court would in­
vestigate and supervise all phases of employment relations 
in the AES, similar to the school desegregation cases. When 
injunctive relief against the disciplinary proceedings was 
denied in this court, plaintiff litigated in the UAPA pro­
ceeding all of the issues about which he now complains, 
including allegedly racially discriminatory conduct by his 
employers. As heretofore noted, the final disciplinary or­
der was appealable to courts of record in the court system 
of Tennessee.

This Court is convinced that the civil rights statutes 
set forth in Title 42 of the United States Code, and upon 
which plaintiff relies for this Court’s jurisdiction, were 
not intended to afford the plaintiff a means of relitigating 
what plaintiff has heretofore litigated over a five-month 
period. Therefore, this Court should dismiss the case upon 
the doctrine of res judicata.

For the above reasons, this Court concludes that a 
summary judgment should be granted in favor of all de­
fendants and the Clerk is directed to enter a judgment of 
dismissal with prejudice in favor of all defendants.

ENTER: This 2nd day of May, 1984.

/ s /  Robert M. McRae, Jr.
Robert M. McRae, Jr.

United States District Judge



A33

THE UNIVERSITY OF TENNESSEE

O ffice of the V ice 
P resident for 
A griculture 

P. O. Box 1071

Institute of A griculture

Instruction, research, exten­
sion in agriculture and 
veterinary medicineKnoxville, Tennessee 

37901-1071 
(615) 974-7342

Research, extension in home 
economics

August 1, 1983

Messrs. Williams and Dinkins 
Attorneys at Law 
203 Second Avenue, North 
Nashville, Tennessee 37201

Mr. Alan M. Parker 
Associate General Counsel 
The University of Tennessee 
810 Andy Holt Tower 
Knoxville, Tennessee 37996-0184

Re: The University of Tennessee Agricultural
Extension Service v. Robert B. Elliott

Dear Sirs:

This decision constitutes the final order in this matter 
and is entered pursuant to T.C.A. § 4-5-315.

The initial order, entered on April 4, 1983 by the Ad­
ministrative Judge, concluded that although Mr. Elliott 
was guilty of four of the eight charges placed against him, 
he should not be terminated as proposed by the Extension 
Service. Instead, the employee was ordered reassigned 
for a twelve month period under the direct supervision 
of the District and Associate District Supervisors of Dis­



A34

trict One. Placing employee under District One super­
vision precludes transfer to “virtually any county in the 
State,” as employee contends. To the extent such order 
can be otherwise construed, it is modified accordingly. 
Such action will insure that employee remain in District 
One. In ordering such a transfer, the Administrative Judge 
recognized the fact that it would be difficult, if not im­
possible, for Mr. Elliott and his present supervisor, Mr. 
Curtis Shearon, to work together in a harmonious rela­
tionship in the Madison County Agricultural Extension 
Office.

My review of the record in this case convinces me 
that such conclusion is undoubtedly true, is supported by 
the evidence, and that no error was committed by the Ad­
ministrative Judge in reaching such decision. I am also 
convinced from my review of the record that the action 
of the Extension Service in proposing the termination of 
employee’s services was not motivated by employee’s race 
but by a desire to terminate employee for what the Ex­
tension Service sincerely believed to be inadequate job 
performance and inadequate job behaviour. The lengthy 
due process hearing afforded employee and the lengthy 
hearing record, which has been filed with me, are ample 
evidence of such fact. It seems to me that the very es­
sence of a due process hearing is to give an employee 
charged with an offense an opportunity to defend himself 
of the charges against him. Here, the employee was af­
forded ample opportunity under the law to defend him­
self before he was terminated and was found not guilty 
of four of the eight charges. The Administrative Judge 
found that conviction of the remaining charges was not 
sufficient under the circumstances to warrant dismissal. 
The Extension Service did not appeal such finding and 
conclusion.



A3 5

I have considered carefully the issues raised by em­
ployee in this appeal and find them to be without merit 
for the reasons set out in the well-i’easoned and detailed 
initial order of the Administrative Judge, which I adopt 
as my own and as a part of the final order in this matter. 
Accordingly, it is my decision to sustain the findings and 
conclusions of the Administrative Judge as they relate to 
this appeal and deny employee’s appeal.

A petition for reconsideration of this order may be filed 
within ten (10) days after entry, as set forth in T.C.A. 
§ 4-5-317. Judicial review of such order may be had by 
filing a petition for review in a Chancery Court having 
jurisdiction within sixty (60) days from the entry of this 
order, as provided by T.C.A, § 4-5-322.

Entering this 1st day of August, 1983.

/ s /  W. W. Armistead 
W. W. Armistead 

Vice President



A3 6

THE UNIVERSITY OF TENNESSEE 
ADMINISTRATIVE APPEAL

THE UNIVERSITY OF TENNESSEE AGRICULTURAL 
EXTENSION SERVICE,

Employer,

v.
ROBERT B. ELLIOTT, 

Employee.

INITIAL ORDER

INTRODUCTION

Pursuant to the contested case provisions of the Ten­
nessee Administrative Procedures Act (U APA), T.C.A. Sec. 
4-5-301 et seq., this administrative law judge and hearing 
examiner (hearing examiner hereafter), an agency staff 
member having been assigned this role by W. W. Armi- 
stead, Vice President for Agriculture The University of 
Tennessee Institute of Agriculture, conducted a hearing 
in the above styled case. The hearing was convened on 
April 26, 1982, in the auditorium of the Madison County 
Agricultural Complex in Jackson, Tennessee. Employee’s 
motion to continue was denied and testimony was heard 
on April 26-29, 1982. The hearing recessed and thereafter 
reconvened on July 13-16, 1982; July 26-28, 1982; August 
9-13; 1982; August 16-August 18, 1982 and August 23, 1982 
during which day the hearing recessed at the request of 
employee upon receiving news of the death of his wife’s 
uncle in Chicago, Illinois. The hearing was reconvened 
September 27-29, 1982 and then recessed until October 
25, 1982 at which time employee moved for a continuance



A3 7

of sixty days based on recommendation of his physician, 
Dr. Robert Winston, who testified in support of the motion 
that in his opinion Robert Elliott could carry on a normal 
work schedule but to continue the stress and strain of 
the hearing could lead to a stroke and possible paralysis. 
Dr. Winston, an internist and general practitioner, had ear­
lier testified as a witness for employee. While awaiting 
a second opinion from neurologist, Dr. James Spruill whom 
Dr. Winston had called in during the week of October 
11, 1982 while employee was hospitalized and under Dr. 
Winston’s care, to evaluate certain tests, the University 
offered to waive further cross examination of employee 
and conclude the hearing. Upon agreement of the parties, 
the motion to recess for 60 days became moot and after 
twenty-eight days of testimony and argument, the hearing 
was concluded. Employee’s motion for a directed verdict 
at the conclusion was denied.

After reviewing all the testimony some 104 witnesses 
all evidence of record which included 159 exhibits, argu­
ments of counsel, and the parties proposed findings of 
fact and conclusions of law, the following findings of fact 
and conclusions of law are rendered and an initial order 
entered accordingly.

The purpose of this hearing was to determine whether 
or not the employment of Madison County Associate Agri­
cultural Extension Agent, Robert B. Elliott (hereafter 
Elliott, or employee) should be terminated for alleged 
inadequate work performance and inadequate and/or im­
proper job behavior.

By letter dated December 18, 1981, Dr. M. Lloyd Dow- 
nen, (hereafter Downen, employer or Dean) of The Uni­
versity of Tennessee Agricultural Extension Service (here­
after University, employer, UTAES or AES) informed



A3 8

Elliott that “due to the serious allegations and incidents 
of inadequate job behavior which have continued this year, 
I have decided to propose that your employment with 
The University of Tennessee Agricultural Extension Ser­
vice be terminated for inadequate job performance and 
inadequate job behavior” . (Exhibit #115). Elliott was 
notified of his right to a hearing to contest the charges 
against him either under Section 500 of The University 
of Tennessee Institute of Agriculture’s (UTIA) Personnel 
Procedures or the contested case provisions of the Ten­
nessee Uniform Administrative Procedures Act (UAPA). 
On December 22, 1981, the employee informed Downen 
by letter that he was electing to contest the charges against 
him in a hearing under the UAPA. Subsequently, Elliott 
filed a civil rights action in the United States District 
Court for the Western District of Tennessee seeking dam­
ages and both temporary and permanent injunctive relief 
against the University and its officials from taking any 
action which would affect his employment status. The 
court entered a temporary restraining order which enjoined 
the University from taking any further action towards 
the commencement of this hearing. Upon dissolution of 
the temporary restraining order Federal District Judge 
Harry Wellford specifically allowed this hearing to proceed 
as long as it was held prior to any determination to termi­
nate Elliott’s employment. On March 1, 1982, Downen 
wrote to employee Elliott (Exhibit #118) specifically 
charging him as follows:

You are charged with inadequate work performance 
in that you have failed in a timely and proper manner 
to complete assignments given to you pursuant to your 
job description by the Madison County extension 
leader and failed to properly carry out instructions 
given to you by your supervisors. You are charged



A39

with inadequate job behavior in that you have played 
golf during working hours without permission and 
without taking leave. You are also charged with con­
ducting your personal cabinet business during working 
hours. You are charged with making, or allowing, 
harassing phone calls to be made from your home 
telephone to Mr. Jack Barnett, a resident of Gibson 
County. You are charged with improper job behavior 
during the incident at Murray Truck Lines on June 
18, 1981 and at the Madison County livestock field 
day on July 24, 1981. You are charged with violating 
The University of Tennessee Institute of Agriculture 
work rule #4 , leaving work prior to the end of the 
work period, and repeated failure to inform the super­
visor when leaving a work station or work area. You 
are charged with violating work rule #13, the use 
of abusive language. You are charged with violating 
work rule #24, behavior unacceptable to the Uni­
versity or to the community at large. You are charged 
with violating work rule #25, insubordination or re­
fusal of an employee to follow instructions or to per­
form designated work where such regulations or work 
normally or properly may be required of an employee.

Thereafter, pursuant to the UAPA, T.C.A. Sec. 4-5- 
101 et seq. employee moved for a more definite statement. 
Employee responded as follows:

1. The employee is charged with playing golf during 
working hours in that during the spring of 1976 
he was caught on the golf course at Woodland 
Hills Country Club in South Madison County dur­
ing working hours and without permission by the 
Madison County extension leader and district su­
pervisor. The employee gave assurance that he 
would not play golf again during working hours.



A40

Thereafter, on July 31, 1981 the employee, without 
permission, played golf during working hours at 
the Jackson Golf and Country Club. Employee 
is also charged with recently playing golf without 
receiving prior permission to leave the work sta­
tion and without making previous arrangements 
to take annual leave.

2. The employee is charged with engaging in the 
commercial business of making and installing cab­
inets during working hours in that the employee 
in 1980 on numerous occasions visited a residen­
tial dwelling in Jackson, Tennessee which was 
under construction and which the employee had 
been low bidder on the construction and installa­
tion of kitchen cabinets. Such visits to said 
dwelling were during working hours. The date 
of the last visit was June 9, 1980. The employee 
is also charged with other acts of engaging in 
personal business during working hours, proof of 
which will be adduced at the hearing of this mat­
ter.

3. The employee is charged with making, or allowing 
to be made, harassing telephone calls to Mr. Jack 
Barnett, a resident of Gibson County, in that anon­
ymous telephone calls were made at all hours 
of the day and night to Mr. Barnett’s residence, 
and upon making a complaint to South Central 
Bell Company, such anonymous calls were traced 
to the employee’s residence telephone in Gibson 
County. Such charge, if sustained, is alleged 
to violate work rule #24 of the UTIA in that 
such activity represents behavior unacceptable 
to the University or the community at large.



A41

Such anonymous telephone calls were harassing 
in that such calls were also made in the late-night 
hours, were repetitive and were the cause of abuse, 
torment and harassment to the peaceful enjoy­
ment of Mr. Barnett’s residence.

4. The employee is charged with improper job be­
havior during working hours on June 18, 1981 
at Murray Truck Lines in Jackson, Tennessee in 
that one (1) the employee trespassed upon the 
premises of said truck lines through the back door 
entrance, (2) refused to identify himself to the 
shop foreman, (3) used abusive language toward 
the shop foreman, (4) refusal to identify himself 
to the owner, (5) refused to leave premises when 
requested to do so by the owner, and (6) verbally 
threatened the owner.

5. The employee is charged with improper job be­
havior at the Madison County livestock field day 
on July 24, 1981 in that the employee, upon over­
hearing a conversation of Mr. Tommy Coley, a 
private citizen of Madison County, placed himself 
immediately in Mr. Coley’s face shouting three 
times, “wait a goddam minute” or expletives to 
the same effect; that the employee refused to allow 
Mr. Coley to explain the misunderstanding; that 
the employee refused to investigate and determine 
the correct facts; that the employee left the area 
cursing profanely; that the employee, without in­
vestigating the true facts, wrote to the U.S. De­
partment of Justice claiming that Mr. Coley, in 
his role as a livestock judge, had refused to award 
Best Animal to a black youth, when in fact Mr. 
Coley had awarded Best Animal to a black youth.



A42

6. The employee is charged with violating the UTIA 
work rule .#4, leaving work prior to the end of 
the work period, in that the employee did not 
return to the office on the afternoon of July 
23, 1981 from the Milan Field Day but rather 
returned to his home in Gibson County, missing 
a staff conference. On July 31, 1981, the employee 
left the office prior to the end of working hours 
and proceeded to play golf without permission 
and without taking annual leave. The employee 
is also charged with other instances of leaving his 
work station prior to the end of the work period, 
proof of which will be adduced at the hearing 
of this matter.

7. The employee is also charged with improper job 
behavior in violating the UTIA work rule #22, 
charging personal calls to the extension service 
telephone in Madison County in that beginning 
at least in the summer of 1981, the employee 
began charging long-distance personal calls to the 
extension service telephone number in Jackson, 
Tennessee.

8. Employee is charged with violating UTIA work 
rule #25, insubordination or refusal of an em­
ployee to follow instructions or to perform desig­
nated work where such instructions or work nor­
mally and properly may be required of an em­
ployee in that the employee consistantly refused 
to carry out his supervisors instructions for the 
employee to complete the small farm group sur­
veys and feeder pig producer surveys, and the 
employee also refused to carry out his assignment 
in the Cypress Creek Watershed, and other assign­
ments. The employee also failed to appear at



A43

a calf sale on October 8, 1981 even though the 
employee was working that date.

9. The employee is charged with inadequate work 
performance in that he failed in a timely and 
proper manner to complete assignments given to 
him pursuant to his job description, and failed 
to carry out instructions given to him by his super­
visors.

10. The employee is charged with violating work rule 
#13, of the UTIA, use of abusive language, in 
that the employee directed profane expletives at 
the shop foreman at Murray Truck Lines on June 
18, 1981, verbally threatened the owner of Murray 
Truck Lines on June 18, 1981, and directed profane 
expletives at Mr. Tommy Coley during the Madi­
son County livestock field day on July 24, 1981.

Employee denied all of the foregoing charges relating 
to improper job behavior and inadequate job performance, 
placing them at issue and on the first day of the hearing 
in this matter, April 26, 1982, filed with this hearing ex­
aminer the following statement of counter issues.

Whether or not the charges in all actions taken or 
proposed to be taken against the defendant, Robert 
B. Elliott, the University of Tennessee Agricultural 
Extension Service and any and/all of its officials, 
employees and those acting in concert and/or parti­
cipation with them, including but not limited, to the 
white members of the Madison County Agricultural 
Committee, Murray Truck Lines and its officials and 
Jack Barnett were taken or proposed because of racial 
prejudice and/or discrimination against defendant be­
cause he is black and/or because of his complaints 
against racial discrimination by said persons or agen-



A44

eies named above, and/or because of his actions in 
seeking to play golf or use the facilities of all-white 
country clubs open to virtually any white member 
of the public but from which black citizens are or 
were excluded solely because of race or color. (Ex­
hibit # 2 )

and a statement of additional counter issues as follows:

Whether or not the charges and all actions taken or 
proposed to be taken against defendant as set out 
in his original statement of counter-issue or otherwise 
in this proceeding are illegal, unconstitutional and void 
as depriving him of rights secured by the Thirteenth 
and Fourteenth Amendments to the Constitution of 
the United States and by 42 U.S.C. Sections 1981, 
1982,1983,1985,1986 and 2000e.

Whether or not said charges and actions are illegal 
and void because of non-compliance with Chapter 44 
of Title 8, T.C.A. (Exhibit # 3 )

Due to the nature of the charges against employee 
by employer, more specifically those which allegedly 
evolved from actions of employee in response to alleged 
racial slurs and epithets, substantial testimony and argu­
ment relating to race, was permitted in order to give 
this hearing examiner a more full understanding of the 
matter before him. However, it is the hearing examiner’s 
opinion that this was not the appropriate forum and that 
he has no jurisdiction under the UAPA contested case 
provisions, supra to try civil rights actions on the merits 
as proposed in employee’s counter charges. If an action 
lies, it lies not in state proceedings such as this hearing. 
Such an action has been filed by employee in the United 
States District Court in Jackson, Tennessee. Robert B. 
Elliott v. The University of Tennessee, et al. (C.A. No.



A45

82-1014, W.D. Tenn. E. Div.) therefore, this hearing ex­
aminer concludes that if jurisdiction exists over the counter 
issues raised by employee, it exists in that Federal District 
Court and that employee may not try his civil rights actions 
in this forum. Employee’s claim of racial discrimination 
as an affirmative defense to the charges against him is 
however, considered herein.

BACKGROUND

The University of Tennessee is a land grant university 
and administers the State of Tennessee’s agricultural ex­
tension program through the University’s Institute of Agri­
culture. The primary purpose of the agricultural extension 
service is to diffuse new agricultural, scientific and tech­
nological innovations and information developed at the 
agricultural experiment stations throughout Tennessee and 
the nation and home economics information directly to 
agricultural producers and to encourage those producers 
and their families to utilize this information to improve 
family living. Funds for the agricultural extension service 
are provided by the United States Department of Agri­
culture, under the Smith-Lever Act of 1914 (7 U.S.C. Sec­
tion 341, et seq.), the State of Tennessee and each of 
the ninety-five counties. UTAES provides approximately 
80 percent of the funds (some of which are received from 
federal sources), and the counties provide approximately 
20 percent of the funds.

The UTAES is part of The University of Tennessee, 
and its one-thousand employees are employees of the Uni­
versity. Tennessee State University is also a land grant 
university, and operates an agricultural extension program 
and has agents in some counties. The overall state-wide 
agricultural extension service is administered by The Uni­
versity of Tennessee under the direction of the Dean of



A46

Extension, Dr. M. Lloyd Downen. Downen functions in 
Tennessee as the representative of the secretary of the 
U.S. Department of Agriculture for all Tennessee AES 
programs.

By statute, all Tennessee counties maintaining an agri­
cultural extension program are requied to elect a seven- 
member agricultural extension committee. T.C.A, 4-9-3406. 
The purpose of this committee is to “act with duly autho­
rized representatives of the State Agricultural Extension 
Service in the employment and/or removal of personnel 
receiving funds from county extension appropriations. . .” 
In practice, this means that mutual agreement must exist 
between each respective county agricultural committee and 
the dean of extension in order to either hire or remove 
an agricultural extension agent. Also, this means that 
in reality neither the University acting alone, nor the 
county agricultural committee acting alone, can effectively 
make unilateral decisions affecting the employment status 
of an agent in a given county.

In Tennessee when a county agricultural extension 
committee makes a recommendation to remove a county 
agricultural agent from service in the county the com­
mittee recommendation is forwarded to the dean of the 
UTAES in Knoxville. Although final approval is vested 
in the secretary of the U.S. Department of Agriculture, 
this has been delegated by the secretary to the dean who 
may accept or reject a recommendation of the county 
agricultural committee. County committees have no func­
tion in any capacity outside their respective counties.

The principal offices of the UTAES are located on 
the campus of the University of Tennessee Institute of 
Agriculture in Knoxville, The State is divided into five 
AES districts, each headed by a district supervisor respon­



A47

sible for the AES programs within that district. Mr. Hay­
wood Luck (hereafter Luck) is the district supervisor for 
District One, which includes twenty-one Tennessee coun­
ties west of the Tennessee River. Madison County is in­
cluded in that district. Also, the District One headquarters 
are located in Madison County on the grounds of the 
West Tennessee Agricultural Experiment Station.

The district supervisor, in each district, is assisted 
by two associate district supervisors who respectively over­
see the agricultural and home economics programs. Dr. 
Gene Turner (hereafter Turner) is the District One asso­
ciate district supervisor for agricultural programs, and Mrs. 
Alpha Worrell is the associate district supervisor for home 
economics programs.

The top administrative position of the AES in each 
of the ninety-five Tennessee counties is that of the county 
extension leader, formerly known as county agent. The 
extension leader reports directly to the district supervisors 
in coordinating all AES activities within his/her county, 
and the extension leader is the immediate supervisor of 
all other agents in the county office.

There are also state-wide specialists within the AES, 
whose responsibilities include providing technical assis­
tance to agents in the counties. These specialists possess 
technical and research expertise in the various subject- 
matter areas and are available to the county AES offices 
to help with particular problems encountered by AES clien­
tele, ie, individual farmers, farm families and agricultural 
businesses. They also help individual AES agents or 
county AES offices in planning, implementing and evaluat­
ing various educational programs of AES. These specialists 
also interpret research and development information from 
agricultural experiment stations and dissiminate such in­



A48

formation in bulletins and in various ways for use by 
AES agents in serving AES clientele.

The UTAES renders educational services in four major 
extension program areas: agricultural production and
marketing, 4-H youth programs, home economics, and com­
munity resource development programs.

Agents are assigned to agricultural programs by the 
county extension leader and these programs come under 
the overall general supervision of a district supervisor 
for agricultural programs. In District One which includes 
Madison County, the person charged with the responsibility 
for adult and youth agricultural programs is Dr. Gene 
Turner. The mission of agents assigned to agricultural 
programs is to take the latest research findings directly 
to agricultural producers and encourage them through 
group teachings, demonstrations, individual farm visits, 
etc. to utilize this information to improve their agricultural 
operations and overall economic situations.

The UTAES has adopted a management by objective 
(known as MBO) system of evaluating performance of 
its employees. Performance ratings of county professional 
employees are recommended by the county extension 
leader, to the district supervisor who assigns an official 
rating for the fiscal year with the final approval of the 
State extension administration consisting of the dean, an 
associate dean in charge of agricultural programs state­
wide, an associate dean in charge of home economics pro­
grams state-wide and an assistant dean. AES District 
One Supervisor Luck has the responsibility for officially 
evaluating agents located in Madison County.

The AES is essentially an educational arm of the land 
grant university system in which each farm may serve 
as an individual classroom. In order to be effective, under



A49

the supervision of the county extension leader, each agent 
must implement an orderly and organized planning ap­
proach to his overall educational program. Each county 
office of the AES develops a five-year plan of work to 
guide its staff in its mission. One-fifth of the plan of 
work is updated annually. It is the responsibility of the 
leader of each county office to direct his staff in measuring 
its progress against objectives, and at the end of each 
year report this progress to the appropriate district office 
which in turn reports to the State extension administration. 
Therefore, cooperation in working together with super­
visors at all levels is required for effectiveness.

The first task faced in planning by each agent assigned 
agricultural program responsibilities is to establish who 
is the audience or clientele in the county who are to 
be served by his program. Once this is established eg., 
all cotton producers, cattle producers, small farm families, 
etc. an agent needs to determine program needs and op­
portunities that relate to his clientele and establish priori­
ties accordingly. The time-tested method by which the 
AES has accomplished this purpose is by utilizing farm 
surveys to establish a data base for a particular group 
of agricultural producers. Once program needs and oppor­
tunities are identified, the agricultural agent’s primary 
task is to begin to develop an educational program designed 
to solve problems, further identify the needs of his clientele 
and help them take advantage of opportunities for better 
living. The agents, thus the AES actual educational mis­
sion begins with the implementation of the educational 
plan. In effect, the AES in Tennessee and nationwide, 
is an educational program designed to provide for instant 
technological information transfer from the University’s 
agricultural and home economics research facilities to the 
agricultural community.



A50

A  4-H and youth program is operated in each of the 
ninety-five Tennessee counties and is designed to develop 
good character and citizenship and to teach useful and 
practical skills.

Community resource development programs deal pri­
marily with problems that require group or community 
action. These programs vary from county to county de­
pending on the needs of the counties over a period of 
time.

As an educational profressional each agent assigned 
agricultural program responsibilities must of necessity 
spend considerable time out of the office working with, 
teaching, and motivating agricultural producers within his 
assigned program area. This may require meetings and 
individual visits beyond normal working hours. Accord­
ingly, while direct program supervision is the responsibility 
of the county extension leader, ultimately the district su­
pervisor and state-wide leader for agricultural programs, 
self supervision by agents is necessary on a day-to-day 
basis.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The term inadequate may be defined as insufficient, 
disproportionate, lacking in effectiveness or in conformity 
to a prescribed standard of measure. Black’s Law Diction­
ary Fifth Ed., 1979, p. 683. Improper by definition means 
not suitable, unfit, not suited to character, time, and place. 
Also, it means to be not in accordance with right procedure 
and not in accord with propriety. Black, supra, p. 682. 
See also Landry v. Daley, D.C. 111., 280 F Supp. 968, 970.

Thus employee behavior that lacks conformity to a 
prescribed standard or measure such as time could be 
described as inadequate. Similarly, behavior not in ac­



A51

cordance with right procedure and not in accord with 
propriety may be described as improper.

As to Charges of Inadequate and/or Improper Job
Behavior and Inadequate Performance

1. Charge of Inadequate and/or Improper Job Per­
formance, Playing Golf During Working Hours

Employer offered proof that in the spring of 1976 
shortly after Extension Leader Shearon came to Madison 
County, he received a phone call from a Madison County 
citizen alleging that employee was playing golf during 
working hours at Woodland Hills Country Club. Shearon 
testified that he called H. T. Short, District Supervisor 
at the time, and that together they went to Woodland 
Hills, made inquiry and was informed by the manager 
that employee Elliott was there playing. Short testified 
that they left without further checking, that he talked 
with Elliott the following week about the incident, that 
Elliott admitted that he was there playing golf and 
promised that he would not do it again. Short further 
testified that as far as he knew employee did not play 
golf again during working hours while he was district 
supervisor. Elliott introduced evidence that he was at 
the club on extension business, having been called there 
by the manager, Mr. Jack Fox and while there played 
a brief round of golf during his lunch hour, somewhere 
around 11:00 a.m. (Short, Shearon, Elliott, Fox testimony). 
Elliott further testified that he often began work as early 
as 6:00 a.m. in the morning (later confirmed by credible 
former witness), often worked through lunch, sometimes 
worked after 5:00 p.m., and that he felt justified if he 
wanted to stop and hit a bucket of balls at 2:00 p.m. 
or play during lunch hour at some time other than between 
12:00 and 1:00 p.m. and that he was within his right 
to do that.



A52

Employer offered further evidence that employee 
played golf at the Jackson Golf and Country Club on 
July 31, 1981 beginning about 3:00 p.m. in the afternoon. 
Employee admitted that he played golf on July 31, 1981 
but claimed the time was around 4:00 o’clock, further 
that he had worked through the lunch hour on that day 
and that he was taking his lunch hour playing golf at 
that time.

By his own admission Elliott played golf at the Hum­
boldt Golf and Country Club on Friday, May 5, 1978. 
He further testified that he thought he was on leave on 
that day, that he had intended to take leave May 1 through 
May 5. Leave records indicate no leave was taken on 
May 5,1978.

It was undenied that although normal working hours 
for Agricultural Extension Service professional employees 
is between the hours of 8:00 and 5:00 p.m., due to the 
nature of their work which often requires them to conduct 
night meetings and other after hours work-related activi­
ties, though compensatory time as such is not an official 
policy of the AES, some degree of flexibility is permitted 
of necessity and that it is generally left to the discretion 
of supervisors of employees to see that they get the job 
done without abusing their professional discretion (Testi­
mony of Shearon, Downen, Blakemore, Matlock, Butler, 
and Elliott). I cannot agree with employee’s contention 
that his lunch hour extended to 4:00 o’clock in the after­
noon. On the other hand, under normal circumstances, 
again due to the nature of the extension employee’s job 
responsibilities, exercising professional discretion in occa­
sionally leaving the office early or arriving late is, if not 
by established policy, in practice permissible conduct. By 
weight of the evidence I find that employee did in fact 
play golf during working hours in the spring of 1976,



A53

again on May 5, 1978, and on July 31, 1981. Throughout 
employer’s offer of proof numerous references were made 
to complaints about employee’s playing golf and one letter 
from a citizen alleging that employee played golf during 
working hours was introduced (Exhibit #39).  However, 
the writer of the letter lived in Madison County and pre­
sumably was available as a witness but was not called. 
Therefore, a preponderance of the evidence does not sub­
stantiate any further incidents of playing golf other than 
on the above dates.

UTIA personnel policy provides for a multi-step pro­
cedure in dealing with employee behavior requiring dis­
ciplinary action (Exhibit #121).  It further provides that:

To be effective, a program of this nature must consider 
the nature of the offense, the past record of the offend­
ing employee, and penalities appropriate to the offense.

Furthermore, it provides that it is hoped that the unsatis­
factory performance or behavior noted will be corrected, 
and I believe assumes that both employer and employee 
will work toward that end.

Assuming this to happen, the sequence of disciplinary 
action will be considered halted twelve (12) months 
after the last disciplinary action taken. If unsatis­
factory performance or behavior recommences after 
the twelve (12) month period, a new sequence of 
disciplinary actions shall he started . . . (Emphasis 
added)

Therefore, based on the testimony presented and in view 
of this policy, the charge of inadequate and/or improper 
job behavior for playing golf during working hours in 
1976 and in 1978 made December 18, 1981 some 3 to 5 
years later is not well founded (Exhibit #115). The July



A54

31, 1981 incident, however, viewed in light of the same 
UTIA policy, the undisputed testimony of both Shearon 
and Elliott that Elliott had been warned of complaints 
about golf playing during working hours and had been 
relieved of professional duties of assisting golf courses 
does, I conclude, amount to improper and/or inadequate 
employee behavior (Testimony of Shearon, Elliott and Ex­
hibit #22 ). In my opinion, the incident of playing golf 
at 4:00 o’clock in the afternoon although not precisely 
in conformity with the prescribed standard of normal 
working hours of the AES, under normal circumstances 
standing alone would not require disciplinary action; but 
coupled with violation of his supervisor’s order not to 
play golf during working hours puts it in a different light 
and in my view for an employee to play golf during 
the hours of 8:00 a.m. to 5:00 p.m. while not on leave, 
under the circumstances, is not in accord with propriety 
and therefore improper. This finding will be considered 
for purposes as this hearing along with all findings keeping 
in mind the “ . . . nature of the offense, the past record 
of employee and the penalties appropriate to the offense” .

2. Charge of Conducting a Commercial Cabinet Busi­
ness During Working Hours

At the conclusion of its proof employer requested and 
was granted the right to later call employee Elliott to 
question him directly about the charge that he conducted 
a commercial cabinet business during working hours. It 
was not disputed that Elliott did in fact own and operate 
a commercial cabinet business located on the premises 
of his residence near Humboldt, Tennessee in Gibson 
County. Elliott also admitted owning a van-type vehicle 
which he used in his cabinet business and sometimes drove 
to work. A number of Elliott’s witnesses admitted on



A55

cross-examination that Elliott had built and installed cab­
inets for them but there was no substantial evidence pre­
sented at the hearing to show that the cabinets were made 
and installed during normal working hours from 8:00 a.m. 
to 5:00 p.m. The University called no direct witness in 
support of its charge of conducting cabinet business during 
working hours. Furthermore, early in its cross- 
examination of Elliott, the University voluntarily waived 
further cross-examination thereby choosing not to exercise 
its previously reserved right to examine him in detail 
about the cabinet charge. Therefore, I find that the Uni­
versity of its own voluntary decision chose to not go forth 
with its proof, thereby, failing in its burden of proving 
the charge of conducting commercial cabinet business dur­
ing working hours.

3. Charge of Making, or Allowing to be Made, Harass­
ing Telephone Calls to the Home of Jack Barnett

Employee is charged with making anonymous tele­
phone calls to the residence of Mr. Jack Barnett, a resi­
dent of Gibson County, Tennessee on August 16, 1979 
(Exhibit #118). This was during the time of the Hum­
boldt Golf and Country Club annual golf tournament in 
August 1979.

Anonymous telephone calls made to harass another 
person are illegal by statute in Tennessee. T.C.A. Section 
39-3011 provides in part as follows:

It shall . . .  be unlawful for any person or persons 
to make use of telephone facilities or equipment (1) 
for an anonymous call or calls, whether or not a con­
versation ensues, if made or communicated in a manner 
reasonable expected to annoy, abuse, torment, 
threaten, harass or embarrass one or more persons, 
or (2) repeated calls, if such calls are not for a law­



A56

ful purpose, but are made with intent to abuse, tor­
ment, theaten, harass or embarrass one or more per­
sons.

In my opinion, a finding that an employee is guilty 
of violating the above statute would constitute behavior 
unacceptable to the University or to the community at 
large and thereby be in violation of the UTIA work rule 
#24.

It has been held that an employer can go forth with 
its proof on such a charge as we have here, though the 
related criminal process has not yet been finalized in a 
criminal court. E.g., Paine v. Board of Regents University 
of Texas System, 355 F. Supp. 199 (W.D. Tex. 1972), aff’d, 
474 F. 2d 397 (5th Cir. 1972); Jones v. State Board of 
Education, 279 F. Supp. 190 (M.D. Tenn. 1968), aff’d, 407 
F. 2d 834 (6th Cir. 1969) cert, denied, 397 U.S. 31 (1970); 
Furutani v. Ewigleben, 297 F. Supp. 1163 (N.D. Cal. 1969) 
cert, denied 397 U.S. 31 (1970); Krasnow v. Virginia Poly­
technic Institute and State University, 414 F. Supp. 55 
(W.D. VA. 1979). This criminal charge though brought 
in 1979 and employee having been indicted in 1979 by 
the Gibson County Grand Jury of the charge of making 
harassing calls to Barnett has never been tried. Venue 
was moved to Madison County and due to a series of 
postponements there resulted over a three-year delay, 
without employer taking action on the matter awaiting 
the outcome. Prior to the beginning of this hearing on 
April 26th employee moved to strike this issue on the 
grounds that:

(1) Said charge is unrelated to any job-related func­
tion or obligation of the defendant.

(2) Defendant is presently defending said charge in 
a criminal case pending in the circuit court of 
Madison County, Tennessee. . .



A57

Due to the long delay, motion was denied and employer 
was permitted to put on its proof relative to the charge. 
In support of the charge the University offered testimony 
by Jack Barnett, former tournament chairman of the Hum­
boldt Golf and Country Club that the employee attempted 
to play on the course on May 5, 1978 and was expelled 
by the sheriff’s department. Thereafter, Barnett testified 
that employee called him several times while he was presi­
dent and tournament chairman asking to play golf in the 
tournament. There were several hours of testimony on 
direct and cross-examination of Barnett and examination 
of employee, much of which bore on racial issues related 
to a series of events that allegedly took place prior to 
that time. This hearing examiner declined to rule on 
race-related counter issues. I further decline to so rule. 
However, of necessity in order to allow for a full under­
standing of the issues and for consideration as an affirma­
tive defense a substantial amount of race-related testimony 
was allowed here and throughout this hearing.

Witness Barnett outlined a series of nine phone calls 
between the 12th and 27th days of August, 1979, made 
to his home in which he testified that no one answered 
when the receiver was picked up. He also testified that 
two additional phone calls in the early evening of August 
16, 1979 when employee called, identifying himself and 
asking him about playing in the tournament. Barnett 
admitted that at least one phone call he may have used 
the words “black nigger” in responding to the call. Barnett 
further testified that phone calls had become so annoying 
that he requested South Central Telephone Company to 
initiate a procedure for tracing calls to his number. Em­
ployer’s witness Robert Kibler, securing manager of South 
Central Bell’s Jackson office testified that upon receiving 
a phone call from the central business office he initiated



A58

tracing equipment produced by Western Electric and de­
signed by Bell Electric Laboratories. Kibler further testi­
fied that he was not personally trained in the detailed 
scientific theory and operation of the equipment. Exhibits 
were introduced indicating that calls were traced to the 
employee’s home number 784-4218 on August 29, 1979 at 
11:44 p.m. and on August 30, 1979 at 12:21 a.m. There 
was a slight discrepancy in the time of two and three 
minutes respectively between the times reflected in the 
exhibits and Barnett’s testimony (Exhibits #11, 11A, 13 
and 14).

Employee claims that Kibler conspired with the Hum­
boldt Telephone Company and others to implicate him 
because of his race and the series of events that took 
place during his efforts to become a member of the Hum­
boldt Golf and Country Club. Employer on the other 
hand claims the facts indicate that someone at Elliott’s 
residence did initiate the August 29 and 30 calls to Bar­
nett’s residence, that Elliott had a motive to make such 
calls, that he had wanted admittance to the golf tournament 
from which he felt excluded because of his race, and 
that he had been making identified calls to Barnett in 
an effort to gain entry to the golf club.

Due to the nature and circumstances of the charge, 
and after having listened to the evidence presented by 
both parties, I conclude that it would be in the best interest 
of justice to leave final disposition with the criminal court 
in Madison County and the Tennessee Criminal Court sys­
tem. Accordingly, I refrain from making a ruling thereon.

4. As to Charge of Improper Job Behavior at Murray 
Truck Lines During Working Hours

UTAES Dean, M. Lloyd Downen, testified that in 
the middle of June 1981 he received a telephone call from



A59

a Mr. Tom Korwin, shop manager, Murray Truck Lines, 
Jackson, Tennessee, who appeared to be upset, alleging 
certain misbehavior of Agricultural Extension Service em­
ployee Robert B. Elliott at the Murray Truck Lines’ 
place of business on June 18, 1981. Downen said “I told 
Mr. Korwin, who I thought was upset, that I would call 
him back.” Downen further testified that on calling back 
in two or three days he found Mr. Korwin was out of 
the office and related to a Mrs. Sherry Mullins, an em­
ployee of the Murray Truck Lines, that if Mr. Korwin 
wished to make a complaint about the behavior of “one 
of my agents, then he needed to do so in writing, and 
she agreed to give him the message.” Subsequently, 
Downen received a letter of complaint from Korwin dated 
July 17, 1981, as follows:

Per your conversation approximately three weeks ago 
with Mrs. Sherry Mullins of this firm, the following 
is a summary of the facts to the best of my recollec­
tion to the events which occurred on June 18, 1981 
involving an employee of yours, Mr. Robert Elliott.

On about 2:00 p.m. on the above mentioned date, a 
middle-aged black man came into my office from the 
rear of the building, which is ‘employees only’ area. 
He asked to speak to the owner of the company, so 
I requested his name and the nature of his business, 
which he refused to divulge. I explained that Mr. 
Murray the owner, was very busy and for this reason,
I would need to be able to extend the courtesy of 
a proper introduction if I have to interrupt his work. 
After he had refused three times to give me this 
information, he finally said, “I may not want him to 
know my name.”

Since he was so persistent, I explained the situation 
to Mr. Murray, who thinking it must be one of the



A60

parties involved in an accident he had witnessed the 
day before, came to talk to the man.

Upon Mr. Mr. Murray’s appearance in my office, 
the man started speaking in a aggressive manner, and 
quickly progressed to a verbal rage, referring to Mr. 
Murray as a white racist and other racially oriented 
slurs. He then threatened Mr. Murray, saying “I hope 
I catch you out somewhere, because I’ll be waiting.”

Since it was obviously impossible to have a rational 
discussion with the man, Mr. Murray then pointed 
out the fact that he was on private property, and 
no longer was welcome. The man then said that this 
property was purchased with the aid of the City of 
Jackson, which gave him the right to do as he chose. 
Mr. Murray again told him that it was private property 
purchased with private money, and asked him to leave 
the premise.

He then departed out the back door and went next 
door to the Tubb’s Cabinet Shop. I inquired there 
later as to what he did there and the cabinet shop 
personnel stated that he was attending to personal 
business.

He was driving a black Datsun pickup, pulling a trailer 
with a golf cart on it. I called the authorities with 
the license number and was given the name of Robert 
Elliott, of Rt. 1, Humboldt, Tennessee.

Some time between 2:30 p.m. and 3:00 p.m. the same 
day Miss Sherry Mullins answered a call from an 
anonymous caller making veiled threats about break 
ins and trouble we could anticipate at our business. 
When she asked the caller if his name was Robert 
Elliott, he became flustered and terminated the con­
versation.



A61

Shortly after this, a call was received from Bobby 
Carter, a black businessman, of Carter’s Car Center, 
1303 North Royal Street, Jackson, Tennessee. He 
claimed someone had called him concerning our com­
pany and its policies. He stated that he felt that 
we were violating his Fifth Amendment rights, and 
that he would see that our business was boycotted. 
He said that their group’s Nashville attorney would 
be contacting our attorney, and that they would see 
that we were caused excessive monetary expense 
through legal battles and harassment.

We were able to obtain the information that Mr. Elliott 
works for the UT Agricultural Extension Service, and 
made calls of inquiry to locate his superiors and inform 
them of his actions.

Had Mr. Elliott visited our firm in a normal courteous 
and businesslike manner, we would have been happy 
to discuss any grievances he felt he had. He instead 
chose to trespass on our property, make threats and 
have his associates make harassing phone calls, ver­
bally abuse owner, disrupting our business from 2:00 
p.m. on.

I also submit that two weeks after these incidents 
Mr. Elliott was seen riding in the hack seat of a 
vehicle which pulled up behind our building. Mr. 
Elliott pointed to our building, with some discussion 
to the driver and passenger in the front seat. They 
then drove off.

We feel that the above incidents are an embarrassment 
to us, and especially to the UT Agricultural Extension 
Service, and appreciate your willingness to listen to 
the facts surrounding the issue.



A62

If any further information is required, please feel free 
to contact us (Emphasis added) (Exhibit #17 ).

Downen further testified that he did not respond to 
Korwin when he received the letter but called District 
Supervisor Haywood Luck and asked him to arrange for 
himself, Extension Leader Shearon and Elliott to come 
to his office on August 5,1981 for the purpose:

I wanted to hear from Mr. Elliott. I needed to know 
from him whether or not the incident occurred and 
if so, what took place . . .  he was the one about 
which the complaint was submitted and the first thing 
I wanted to know was whether or not there was any 
validity to it . . .  all I had was a complaint from  
a private citizen about the alleged conduct of one 
of our agents, Mr. Elliott, so I had no conclusions 
at that point. (Emphasis added)

While employee testified later in this hearing that 
he was on leave on this date he does not deny that he 
may have forgotten by the August 5th conference and 
assumed he was on duty at the time he entered on the 
premises of the Murray Trucking Lines at somewhere 
around 2:00 p.m. in the afternoon of June 18,1981.

Downen further testified that during this conference 
Elliott related to him that he was on duty and was on 
his way to the Tubb’s Cabinet Shop located across an 
alley from the rear of the Murray Truck Lines to visit 
a farmer who worked there when he saw signs in Mur­
ray’s windows which read “The last black thief got four 
years.” Elliott further related that this upset him, that 
he did enter the rear of the building, that there were 
no employees only signs or no trespassing signs visible, 
that he did talk with the man later identified as Tom 
Korwin, that he asked to see the manager of the business



A63

to see what kind of person would put up a sign like 
that in 1981, that he continued to insist upon seeing the 
manager, that he did refuse to identify himself and that 
finally the manager, Mr. Murray, came out and he told 
him that he was offended by those signs and “asked Mur­
ray to take those signs down” , that Elliott denied that 
he called Murray a white racist, that he did not think 
he was overly aggressive and did not think he acted in 
a threatening manner to Mr. Murray. Elliott later testified 
similarly, but denied that he was on duty at the time, 
but was on leave. Downen testified that he accepted what 
Elliott said. He said:

I accepted that he perceived that while upset with 
the sign he was protesting the sign, it was offensive 
to him, and I accepted that he may have believed 
that he was not being overly aggressive and that he, 
perhaps was not speaking or intended to threaten Mr. 
Murray. At the conclusion of the conference I told 
Mr. Elliott that I had heard his statements, that I 
was concerned that even though he perceived that 
he was not threatening Mr. Murray that he was not 
conducting himself in an improper way, I also knew 
that there were uh, citizen who felt that Mr. Elliott 
was coming on overly aggressive . . .  I then told 
Mr. Elliott that I was giving him an oral warning 
that because his behavior need to improve in this 
fashion and the reason for that was to apprise him. 
of the fact that there were people who perceived that 
he was overly aggressive when he addresssed some 
of these social issues this particular time and that 
I wanted Mr. Elliott to be aware of that so he would 
have an opportunity to improve and avoid getting 
into those sort of circumstances . . . the purpose of 
an oral warning is to help or to advise the employee,



A64

in this case, Mr. Robert Elliott, that this was area 
of behavior in which he needed to improve. (Emphasis 
added)
On further examination Downen testified that after 

the conference in his office on August 5 at which time 
he gave Elliott the oral warning, that in keeping with 
University disciplinary policy he wrote Elliott a letter 
confirming the oral warning and placed a copy of the 
letter in his personnel file.

That letter, dated August 5, 1981, was later introduced 
in evidence in this hearing (Exhibit #108) and reads 
as follows:

This letter is to confirm the oral warning I gave you 
in my office this date about your unacceptable job 
behavior. This unacceptable job behavior occurred on 
about June 18, 1981 as set forth in the letter dated 
July 17, 1981 to me from Tom Korwin. You have 
a copy of that letter.
Additional complaints about unacceptable job behavior 
or unsatisfactory performance may result in more se­
vere disciplinary action.

A  copy of this letter is being placed in your person­
nel file, folder. (Emphasis added) Section 500, University 
of Tennessee Institute of Agriculture personnel procedure 
relative to employee disciplinary actions provides that the 
concept of “progressive discipline” shall be followed (Ex­
hibit #117). It provides that:

The supervisor shall first notify the employee orally 
of inadequate work performance or unacceptable job 
behavior. The employee should be told what correc­
tive actions are necessary and when the corrective 
actions are expected. The date and nature of this



A65

oral warning should be documented in the employee’s 
personnel file. (Emphasis added)

It is clear from the evidence presented during this 
hearing that at no time did employer question employee’s 
right to address what he perceived as social wrongs while 
on duty, but the manner in which he went about it.

Downen’s letter to Elliott’s counsel dated November 
5, 1981 (Exhibit #112 (b )) advising him that upon further 
investigation he believed his actions of August 5, 1981 
in giving Elliott an oral warning followed by a confirming 
letter were correct and that he had decided not to remove 
the letter from Elliott’s personnel file clearly reveals that 
Elliott was not being disciplined because he entered upon 
the premises of the Murray Truck Lines during working 
hours to question the propriety of the signs, but be­
cause the manner in which he conducted himself while 
there was considered improper. Moreover, Downen did 
not question his First Amendment right to speak out 
against social wrongs; therefore, whether or not he should 
have been there is not at issue. Downen’s actions were 
based on information available to him which he perceived 
to be undesirable employee traits harmful to the public 
service mission of the AES. In his letter he stated as 
follows:

While I recognize Mr. Elliott’s First Amendment 
rights, I feel that Mr. Elliott’s behavior regarding Mur­
ray Truck Lines was inappropriate under the circum­
stances. Since he perceived a social wrong, he should 
have first investigated the facts and then calmly as­
serted his feelings that the sign was wrong and that 
such sign should be removed. Furthermore, Mr. El­
liott told me he was on duty when he had this con­
frontation with Mr. Murray. While he is on duty,



A66

Mr. Elliott’s public behavior should be impeccable. 
He certainly may address social wrongs in his official 
business contacts, but he must first investigate the 
facts and not respond with aggressive emotions, pro­
fanity, or the use of veiled threats.

It is undisputed that an oral warning was given El­
liott on August 5 followed by a written confirmation 
of that warning of August 5, that Elliott specifically re­
quested that this action be rescinded and the letter 
removed from his file, and that Downen upon further 
investigation believed his action to be correct and declined 
to remove said letter from Elliott’s personnel file. There­
fore, as trier of fact the first question to be resolved 
that directly relates to the charge of improper job behavior 
by employee during working hours on June 18, 1981 Mur­
ray Truck Lines is whether Downen acted properly in 
initiating disciplinary action in the form of an oral warning 
at this point in time.

At the August 5th conference Elliott admitted that 
he was on duty at the time of the incident but later 
claimed that he was on leave. That question will be re­
solved later under the broader issue of overall improper 
behavior relative to this incident. At this point in time, 
Downen was correct in accepting Elliott at his word that 
he was on duty.

It is understandable that Downen as top administrator 
for the AES and responsible for the performance and be­
havior of extension agents state wide was greatly con­
cerned about the allegations made by Korwin, a citizen 
of Madison County, about Elliott, an extension employee 
in Madison County. The success or failure of the AES 
mission at any and all levels is dependent not only on 
performance of its employees but also on the professional



A67

image that they portray at all times, but more specifically 
during working hours before the citizens whom they serve.

If Downen based his decision to give Elliott an oral 
warning on information other than what was contained 
in the Korwin letter the evidence does not so indicate. 
As already stated, he indicated that while he accepted 
as fact that Elliott believed that he was not behaving 
improperly, he indicated that he also knew that a citizen, 
referring to Korwin, felt that Elliott was coming on overly 
aggressive. When asked the question what citizen, Downen 
responded:

Mr. Korwin, and. from the letter, Mr. Murray. I then 
told Mr. Elliott that I was giving him an oral warning 
that because his behavior needed to improve in this 
fashion and the reason for that was to apprise him 
of the fact that there were people who perceived that 
he was overly aggressive when he addressed some 
of these social issues at this particular time and that 
I wanted Mr. Elliott to be aware of that so he would 
have an opportunity to improve and avoid getting 
into those sorts of circumstances. (Emphasis added)

Downen’s August 5th letter confirming the oral warn­
ing stated:

This unacceptable job behavior occurred on or about 
June 18, 1981 as set forth in the letter dated July 
17, 1981 to me from Mr. Tom Korwin. (Emphasis 
added)

I believe that from an administrative point of view Downen 
believed that he was following correct procedure. I find 
no reason to believe that he acted other than in good 
faith. I also find, however, that based on his own testi­
mony in this hearing and on the letter of August 5, 1981 
to Elliott that he acted solely on the basis of what was



A68

set forth in Korwin’s letter to him dated July 17, 1981 
in that two citizens, Korwin and Murray perceived Elliott’s 
behavior and manner, which he at that point in time 
deemed unacceptable job behavior. Granted at this point 
in time this was still in an administrative setting and 
that Downen as an administrator was not bound in his 
decision by strict procedural rules of law. However, the 
actions taken relate directly to what this hearing is about 
and therefore must be dealt with.

Had Downen acted on information related to him by 
Elliott’s supervisors at the county and district level, after 
they had investigated the incident and reported that two 
or more people, in this case Korwin and Murray, as Madi­
son County citizens perceived Elliott’s behavior to be 
overly aggressive, and that Elliott admitted that he was 
there, that he refused to reveal his name, that he demanded 
that Murray remove the signs, as he later did, then, in 
my opinion an oral warning from him or Elliott’s appro­
priate supervisor would have been in order. It is clear, 
however, that the actions taken were based solely on Kor­
win’s letter which neglected to mention the signs and 
in addition to the allegations related to employee’s behavior 
on the Murray premises also related other incidents such 
as anonymous phone calls, veiled threats and generally 
disrupting their business on that date, further implicating 
Elliott. (Exhibit #17 ).

In my opinion, considering the disparity of facts as 
related by Elliott and as received by Downen from Kor­
win’s letter, coupled with Korwin’s failure to mention the 
signs whether by design or neglect, propriety should have 
led to further investigation prior to the oral warning. 
Furthermore, an employee should have the right to know 
precisely what charges are being made against him and



A69

what actions are expected of him. While the behavior 
of Elliott while on the Murray premises may be outlined 
in Korwin’s letter as he perceived it, the letter also implies 
additional serious charges including anonymous calls and 
threats which I find confusing. Also Downen’s letter to 
Elliott if not directly, does imply that he was also being 
charged with unsatisfactory performance at that point in 
time in addition to improper behavior (See Exhibits #17  
and 108). I cannot agree that the actions taken based 
solely on the Korwin letter met UTIA personnel proce­
dural requirements. Also, in my opinion, the receipt of 
allegations of improper behavior of an employee by a 
single citizen would require further investigation and close 
scrutiny prior to taking any disciplinary action against 
the employee. This should be even more applicable to 
allegations made by letter alone.

In Givhan v. Western Line Consolidated School Dis­
trict, 439 U.S. 410, 299 S. Ct. 693, 58 L.Ed. 2d 619 (1979) 
the court said:

That a court must balance the interest of the (teacher) 
as a citizen in commenting upon matters of public 
concern and the interest of the state, as an employer, 
in promoting the efficiency of the public services it 
performs through its employees.

Applying the same logic here, I find that the oral warning 
given employee on the basis of a letter from a citizen 
alleging employee misbehavior, standing alone without fur­
ther investigation was premature under the circumstances.

Before dealing finally with the charge of improper 
job behavior during working hours on July 18, 1981 at 
Murray Trucking Lines it is first necessary to determine 
whether or not employee was in fact on duty at the time 
the incident occurred. It is not disputed that Elliott en­



A70

tered the rear entrance of Murray Truck Lines at approxi­
mately 1:30 to 2:00 p.m. on that date. Moreover, Elliott 
admitted that on August 5, 1981 during the conference 
with Bowmen that he related to him that he was on duty 
on June 18th. He later related in a second conference 
in the presence of his counsel that he was on leave that 
day and was on his way home when he stopped by the 
Tubb’s Cabinet Shop in the rear of Murray Trucking Com­
pany at which point in time he saw the signs in the 
windows, was upset and entered the premises. Elliott 
claimed he had called in for leave for that date, that 
he later signed the leave form, that it was left on Shearon’s 
desk who was out of town for two weeks and that the 
leave slip was never signed by Shearon. That leave form 
is a part of the record of this hearing introduced as Ex­
hibit #121. Employee further testified during the hearing 
that he was on leave at the time and again relied on 
the unsigned leave form. He further testified:

I was, had gone to Woodland Hills to pick up my 
golf cart and was on my way to Pinecrest to play 
golf that afternoon. I was on annual leave. I stopped 
by the Tubb’s Cabinet Shop and I pulled up and 
there was a sign saying, the last black thief got four 
years. (Emphasis added)

Employer did not deny leave requests made in that 
manner were usually granted. However, employer did 
offer proof in the form of a weekly Tennessee Extension 
Management Information System (TEMIS) report which 
indicated that Elliott was on duty the afternoon of June 
18th. TEMIS is the official reporting system used by 
the AES in the State of Tennessee. The reports are com­
pleted, signed and turned in by the respective employees 
for their work during each reporting period. The report 
for June 18, 1981 offered in evidence by employer was



A71

claimed to be in error by employee, but was authenticated 
by his signature, Robert B. Elliott. In my view, the TEMIS 
report signed by employee himself, coupled with his incon­
sistent statements, outweighs the unsigned leave form sub­
mitted by employee. Accordingly a preponderance of the 
evidence leads me to conclude that employee was in fact 
on duty on July 18, 1981 when he entered upon the prem­
ises of the Murray Truck Lines, and I so find.

Now if proved, the charge of improper job behavior 
during working hours on June 18, 1981 based on allegations 
of Korwin and Murray, in my opinion would be a serious 
breach of behavior traits, or characteristics expected of 
an extension agent whose job responsibilities specifically 
involve serving the public.

Under the UAPA the moving party, in this case the 
employer has the burden of proof. In its offer of proof 
employer relied on the testimony of Steve Murray, man­
ager of Murray Trucking Lines and the letter written 
by Korwin dated July 17, 1981. Korwin was not called 
as a witness during the hearing. The letter standing alone 
is clearly hearsay. The UAPA provides that evidence 
not admissible under the rules of court may be admitted 
but further provides as a matter of policy, the agency 
shall provide for the exclusion of evidence which in its 
judgment is irrelevant, immaterial, or unduly repetitious 
(T.C.A. 4-5-109(1)). The courts have stated that as a 
practical matter less time is consumed admitting evidence 
and then disregarding it if it is incompetent or irrelevant, 
than to argue about its admissibility and, if the evidence 
is improperly excluded, wastes more time in a new or 
supplementary hearing. See Samuel H. Moss, Inc. v. 
F. T. C., 148 F. 2d 378 (2d Cir. 1945), cert, denied 326 
U.S. 734, 66 S. CT. 44, 90 L.Ed. 438. Thus by authority 
of the UAPA and the courts, as a practical matter this



A ll

practice was adopted during this hearing. T.C.A. 
4-5-109 (1), also provides:

The agency shall admit and give probative effect evi­
dence admissible in a court and when necessary to 
ascertain facts not reasonably susceptable to proof un­
der the rules of court...

The general rule is that hearsay evidence is not admis­
sible in court for the reason that the person making an 
assertion is not under oath when the assertion is made, 
is not subject to cross-examination as to its truth or falsity, 
and is not confronted with the parties in the action, nor 
before the judge and jury. Thus in the Korwin letter, 
the safeguards of oath, cross-examination and confrontation 
as to his credibility do not exist as to the assertions made 
by him. Korwin was a resident of Madison County, had 
appeared and spoke to this incident before the Madison 
County Agricultural Extension Committee (MCAEC) and 
could have been called to testify in these proceedings, 
but was not. Therefore, although admitted, I cannot give 
weight to the letter in support of this charge for the 
foregoing reasons. This leaves the testimony of Murray 
offered by employer in support of the charge. Murray 
testified that on June 18, 1981 at approximately 2:00 p.m. 
his shop manager, Tom Korwin, came into his office and 
informed him that there was some man that wanted to 
see him but would not give his name. He testified that 
he went with Korwin to Korwin’s office where Elliott 
said he wanted to see the kind of person who would 
put up the kind of sign that was in his window. Mur­
ray admitted that Korwin had put signs in the windows 
of his business stating that “the last black thief got four 
years” . He further testified that Elliott called him a racist, 
but on cross-examination admitted that Elliott could have



A73

said that the “ sign” was racist. He further testified that 
“Mr. Elliott made the remarks to me that uh, that he 
would like to uh, catch me out somewhere, and he would 
see me down the road . . .  he said that three times, 
and I took it as a threat to me personally.” Murray 
said he told Elliott that he didn’t have any business there 
and for him to leave, that Elliott told him that he did 
not have to leave because the building had been bought 
with city money and he didn’t have to get out of there 
if he didn’t want to, that he told him it was private 
money, then Elliott left by the back way. Elliott denied 
that he was trespassing, that he used abusive language, 
or that he verbally threatened the owner or that he called 
him a racist, but that he did leave the premises after 
Murray told him he was on private property and that 
he would have to leave. Elliott admitted that he refused 
to identify himself, that he was angry when he saw the 
signs, that he told Murray he wanted to see the guy that 
had enough nerve to put up a sign like that in 1981, 
and that he told Murray that he would have to take 
the signs down, but did not consider his behavior abusive 
or overly aggressive.

In both the Murray Truck Lines incident and Coley 
incident, infra, Elliott responded to speech by private citi­
zens which he perceived to be offensive to him as a mem­
ber of the black race. This raises the question as to 
whether Elliott’s own speech, amounts to protected speech 
under the United States Constitution. That the right of 
free speech is not absolute at all times and under all 
circumstances was well settled long ago by the Supreme 
ourt in Chaplinsky v. State of New Hampshire, 315 U.S. 
568 (1942) as follows:

Allowing the broadest scope to the language and pur­
pose of the Fourteenth Amendment, it is well under-



A74

stood that the right of free speech is not absolute 
at all times and all circumstances. There are certain 
well defined and narrowly limited classes of speech, 
the prevention and punishment of which has never 
been thought to raise any constitutional problem. 
These include the lewd, and obscene, the profane, the 
libelous, and the insulting or “fighting” words—those 
by which their utterance inflict injury or tend to 
incite an immediate breach of the peace. It has been 
well observed that such utterances are no essential 
part of any exposition of ideas, and are of such slight 
social value as a step to truth that any benefit that 
may be derived from them is clearly outweighed by 
the social interest in order and morality. “Resort to 
epithets or personal abuse is not in any proper sense 
communication of information or opinion safeguarded 
by the Constitution, and its punishment as a criminal 
act would raise no question under that instrument.” 
Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 60 
S. Ct, 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352. (315
U.S. Ct. p. 571-572 (Emphasis added)).

It is necessary in this hearing to determine whether 
employee’s response to the signs in the windows at the 
Murray Trucking Lines and to what he perceived as a 
racial slur by Coley, infra, rises to the level of protected 
speech, and if so whether the proposal to terminate him 
by employer was because of his speech or for other 
valid reasons. In Hildenbrand v. Trustees of Michigan 
State University, 662 F. 2d 439 (6th Cir. 1981), the court 
outlined a series of Supreme Court opinions which I believe 
are directly in point. In that case the court said:

The law in this area has been outlined in a series 
for Supreme Court opinions. Pickering v. Board of 
Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L.Ed. 2d



A75

811 (1968); Perry v. Sindermann, 408 U.S. 593, 92 
Ct. 2694, 33 Lawyers Edition L.Ed. 2d 570 (1972): 
Mt. Healthy School District v. Doyle, 429 U.S. 274, 
97 S. Ct. 568, 50 Lawyers Edition L.Ed. 2d 471 (1977); 
Givhan 99 S. Ct 693 58 L. Ed. 2d 619 (1979). The 
threshold question is whether the plaintiff’s conduct 
deserves Constitutional protection. In a public educa­
tional setting, a court applies a balancing test in deter­
mining what conduct is protected by the First Amend­
ment. A court must balance “ the interest of the 
teacher as a citizen in commenting upon matters of 
public concern in the interest of the state, as an em­
ployer, in promoting the efficiency of the public ser­
vices it performs through its employees.” Givhan, 
supra 414, 99 S.Ct. at 696, quoting Pickering, supra 
391 U.S. Ct. 569, 88 S. Ct. at 1734. If a court finds 
that an employee’s conduct was protected by the First 
Amendment, the finder of fact must determine 
whether the employee was fired because he engaged 
in the protected conduct. The employee’s protected 
conduct must be a “substantial factor” or a “mo­
tivating factor” in the employer’s decision to rehire 
him. Doyle, supra, 429 U.S. at 287, 97 S. Ct. at 576. 
Givhan, supra 439 U.S. at 416, 99 S. Ct. at 697. Once 
the employee meets this burden, the burden of proof 
shifts to the employer to prove that the employee 
would have been fired absent the protective conduct. 
Givhan, supra at 416, 99 S. Ct. at 697: Doyle, supra
429 U.S. at 287, 97 S. Ct. at 576 (662 F. 2d at pp. 
442-443).

It is undisputed that the signs in the windows at 
Murray’s business, “the last black thief got four years” , 
were factually true. Also, Murray had the First Amend­
ment right to place such signs in the windows of his



A76

business even though they identified the race of the thief. 
See Sambo’s Restaurant, Inc. v. City of Ann Arbor, 663 
F. 2d 686 (6th Cir. 1981). Murray testified that the purpose 
for placing the signs in the windows was to deter thieves, 
that they had been burglarized four times in four months 
and this was their way of striking out against further 
theft. He further testified that he was against all thieves, 
black or white, and that he was not opposed to blacks 
as a racial category. He further testified, however, that 
after Elliott left his premises they took the signs down 
because “I think the main reasons why we took the signs 
down, were because we felt like that maybe we had over­
stepped our bounds, as far as our responsibility,” that 
people passing by, not knowing all the facts, might assume 
that he was racially prejudiced because of the signs. Fur­
thermore, it is clear that Downen did not question Elliott’s 
First Amendment right to address social wrongs in his 
official business contacts but disciplined him because of 
what he perceived as undesirable employee traits harmful 
to the public service mission of the UTAES (Ex­
hibit #112b, supra).

It is well settled that an employer, the AES in this 
case, would have the right to discipline its employees be­
cause of undesirable employee traits harmful to its public 
service mission. The rule was well stated in Weisbrod 
v. Donigan, 651 F. 2d 334 (5th Cir. 1981), as follows:

An employee cannot claim First Amendment protec­
tion for speech-related conduct where the ground for 
discharge was not the speech itself, but because it 
evidenced character traits undesirable in an employee. 
(651 F. 2d at p. 336)

See also Accord, Megill v. Board of Regents of the State 
of Florida, 541 F. 2d 1073; Garza v. Rodriguez, 559 F. 
2d 259 (5th Cir. 1977), cert, denied, 439 U.S. 877 (1978).



A77

The AES cannot be effective in its educational mis­
sion without the public support and confidence of the 
public audience in each county, both black and white. 
It is therefore important how the community at large 
views the behavior of an extension employee serving that 
community. Would a reasonable man be expected to act 
in a rude, aggressive, and threatening manner under the 
circumstances? I think not. Applying the balancing test, 
supra, whereby a court must balance the interest of a 
public employee, as a citizen, in commenting upon matters 
of public concern with the interest of the State, as an 
employer, in promoting the efficiency of the public services 
it performs through its employees, the conduct of Elliott 
if proved as charged clearly would not come within the 
protection of the First Amendment.

A final question then is whether or not the AES 
as employer met its burden on the charge of improper 
behavior at the Murray Trucking Lines June 18, 1981.

The UAPA establishes the minimum quantity of evi­
dence and the preponderance of evidence standard of proof 
for administrative hearing adjudication proceedings. See 
also Steadman v. Securities Exchange Commission, 101 
S. Ct. 999 (1981). This may not be determined by the 
number of witnesses, but by the greater weight of all 
the evidence or more convincing than the evidence which 
is offered in opposition to it.

In weighing the testimony of Murray against the testi­
mony of Elliott and considering their manner and demeanor 
while testifying under oath, I cannot find any substantial 
superiority of weight in either testimony over the other. 
Granted, Elliott admitted he refused to identify himself, 
that he entered the back way, that he was upset with 
the sign and that he told Murray he would have to take



A78

the signs down. While I agree that Elliott’s approach, 
based on his own testimony, leaves something to be de­
sired, I keep coming back to the question how would 
the average citizen of “reasonable mind” of Madison 
County react under the circumstances and would both 
black and white citizenry view Elliott’s response and con­
duct as a public employee unreasonable and improper un­
der the circumstances. Again, applying the balancing test, 
supra, a balancing of the interest of Elliott, a black citi­
zen of Madison County with the interest of his employer, 
the AES and applying the UAPA preponderance of evi­
dence, minimum standard supra, considering the burden 
of proof is on the claimant, here the AES, I conclude 
that Murray’s testimony alone set against Elliott’s does 
not carry sufficient weight to meet this burden. That 
he was trespassing, was rude, used abusive language to­
ward the shop foreman, that he called Murray a racist 
or that he threatened Murray, Elliott denied. If his be­
havior was in fact rude, abusive, overly aggressive and 
threatening beyond what would be expected of man of 
“reasonable mind” , conceivably the burden of proof could 
have been met by the testimony of an additional credible 
witness. However, although this charge of improper be­
havior at the Murray Trucking Lines on June 18, 1981 
was initiated by Downen after he received a phone call 
and subsequently a letter from Tom Korwin, shop manager 
for Murray Trucking Lines, alleging Elliott’s improper be­
havior, Korwin was not called by employer in this hearing 
to testify under oath. Rather, employer relied on Korwin’s 
letter of July 17, 1981 in its offer of proof (Exhibit #17, 
supra). No proof was offered that Korwin, a resident 
of Madison County and presumably available, was in fact 
unavailable.

In 49 American Jurisprudence 2nd. (Evidence, Sec­
tion 180 at p. 224) it is stated:



A79

It is a well-settled rule that if a party knows of the 
existence of an available witness on a material issue 
and such witness is within his control, and if with­
out satisfactory explanation, he fails to call him, the 
. . . court . . . may draw the inference that the testi­
mony of the witness would not have been favorable 
to such party. Culburtson v. The Southern Bell, 18 
U.S. 584, 15 L.Ed. 493; National Life and Accident 
Insurance Company v. Eddings, 188 Tenn. 512, 221 
S.W. 2d 695 (1949).

While this rule is applicable it is not essential to 
a finding that employer, the claimant in this hearing, failed 
in its offer of proof to meet its burden on this charge.

5. Charge of Improper Job Behavior at the Madison 
County Livestock Field Day on July 24,1981

The circumstances leading to this charge of improper 
job behavior are similar to the Murray Truck Lines inci­
dent in that employee responded in both instances to speech 
which he perceived to be racially discriminatory, in the 
Murray incident the signs and in this incident conversation 
which he overheard and perceived to be slurs against 
his race.

Employer in its offer of proof claimed that on July 
24, 1981 at a Madison County field day at a break between 
the end of the organized part of the program and farm 
tours to follow that Gary Boyette, Tommy Coley and Dr. 
Jim Neel were standing off to the side talking. Mr. Boy­
ette and Coley are livestock producers and were partici­
pants in that program. Dr. Neel is a Professor of Animal 
Science and a staff member of the UTAES. Coley testified 
that while they were discussing the results from the Dis­
trict One junior livestock show and the State junior live­
stock exhibition that he asked Neel if he knew how the



A80

little “nigra” boy from Tiptoni County did in the exhibition. 
He further testified that “at that point Mr. Elliott, quite 
loudly and abruptly placed himself, yelling ‘Wait a goddam 
minute’, several times; placed himself between Dr. Neel 
and I. He questioned my educational level . . .  I had 
never seen anybody in such a rage in public, with me 
personally” , that he was not talking to Elliott, and said 
“Robert, if the use of the word, that word offended you, 
I am sorry. I wish that I had said black, if that would 
have been better.” Coley denied he used the word “ nig­
ger” but that he was proud of what James Smith, the 
black boy he was referring to had done with his animal 
and wanted to know how he did at the State exhibition.

Boyette testified that when Coley asked Neel “how 
did my little nigra boy, the one who had the grand 
champion lamb do?” , Neel replied I don’t know, at which 
point “a black man wearing a UT cap placed himself 
between Tommy Coley and Dr. Neel and said Wait a 
goddam minute, wait a goddam minute, wait a goddam 
minute’. I thought you had more educational ability about 
you than that.” Boyette said that he did not know the 
black man at that time but identified him during the 
hearing as Robert B. Elliott.

Employee testified that at the time the meeting was 
over for the morning he noticed Mr. Shearon near the 
registration area working with WTJS and DXI radio per­
sonnel in interviewing various farmers about their use 
of a growth implant called RAL-GRO, that he watched 
very closely because he wanted to see if Mr. Shearon 
was going to interview Mr. Willie Boone, a black farmer 
who had used RAL-GRO on his farm but Shearon did 
not even speak to him or acknowledge him whatsoever 
and that “ so, I was already a little keyed up over that. 
Then I heard Mr. Tommy Coley talking to Mr. Neel



A81

. . . about something about judging a show and he went 
on to refer to a little nigger boy as having the best animal, 
but he wasn’t going to place him first. And at that point 
I interrupted, in no uncertain terms, Mr. Coley commented 
that I told him I had overheard what he said. That I 
thought you had more educational ability than that. He 
put his hand up and he didn’t really, didn’t really realize 
that I was behind him, he kind of put his hand over 
his mouth and said, oh, I am sorry Robert. Would it 
have made any difference if I had said black? And 
I just didn’t want to talk to him any more. I went over 
and told Mr. Shearon what happened and, his comment 
was, Robert I would just go on home if I were you.” 
Employee further testified that he did not remember saying 
“wait a goddam minute” that he might have said wait 
a damn minute. Later in direct examination he denied 
that after the incident at the field day that he left the 
area cursing profusely. When asked the question “did 
you curse profanely at all, at any time during any 
events up there?” He answered “I don’t remember. I 
was quite upset. I don’t remember if I did or not. It’s 
not my nature to do a lot of cursing, and if I did, I 
was not aware of it. If I said what he said I said, wait 
a goddam minute, I expect I would have remembered 
that.” Shearon testified that Elliott came by where he 
was cursing and that he told him to go home although 
this was not mentioned in his report to the MCAEC on 
Elliott’s performance (Exhibit #41 ). Elliott denied that 
he was cursing when he came by Shearon. On cross- 
examination Shearon testified that he had never asked 
Elliott about the field day incident or asked him for an 
explanation.

Employee introduced a letter from James B. Neel to 
Tommy Coley dated August 5, 1981 to support his testi­



A82

mony that the word “nigger” was used (Exhibit #83 ). 
Mr. Willie Boone testified that he and Mr. Elliott had 
been talking and as he walked away going toward the 
barn where they had a feeder pig operation he heard 
someone say “nigger” and that he did not hear anything 
else unusual as he was continuing on his way to the barn. 
Neel was not called as a witness by either party during 
the hearing. Had employer, the charging party in this 
hearing introduced Neel’s letter in support of its charge 
without calling him when he was an available witness, 
such evidence in my opinion, would have had little weight. 
However, I conclude that the letter offered herein by 
the adverse party comes within the well-established com­
mon law exception to hearsay and is admissible for the 
purpose which introduced. I further conclude that al­
though Coley may have pronounced the word negro as 
nigra with no intended offense to the black race, three 
other people, Neel, Boone and Elliott heard it as “nigger” 
and I so conclude.

Subsequently, on July 27, 1981 Elliott wrote a letter 
to Dean of Extension, M. Lloyd Downen, calling to his 
attention the incident at Madison County Field Day. In 
the letter he stated:

I was at a field day and two men were talking about 
how one of them had placed an animal first, and 
at the next show the animal did not place. He then 
talked about ‘that little nigger boy had the best animal, 
but I wasn’t going to place him first!’ This judge 
was Tommy Coley of Madison County. He then tried 
to apologize after finding out that I had heard him 
comment, and asked me if it would have made any 
difference if he had said black.” (See Exhibit # 8 )

Copies of this letter were sent to Mr. Haywood Luck, 
Dr. James E. Farrell, and the U.S. Department of Justice.



A83

Downen testified that as a follow-up to Elliott’s letter 
regarding the incident he wrote to Coley sending him 
a copy of the letter. In his letter to Coley dated August 
5,1981 Downen stated:

As you may know, The University of Tennessee Agri­
cultural Extension Service offers its programs to all 
eligible persons regardless of race, color, national 
origin, sex or handicap. I must make certain that 
all programs and activities are conducted by that prin­
ciple. Because of the serious complaint made in the 
attached letter, I would appreciate any comments you 
might have. (See Exhibit #109)

Downen testified that his reason for the above statement 
was that the extension service does offer its programs 
regardless of race, color, national origin, sex or handicap 
and he wanted Coley to know that because it had been 
alleged by Elliott that Coley had judged on the basis 
of race rather than on merit and he wanted him to un­
derstand that he was not going to tolerate judging of 
4-H or any other activities conducted by the extension 
service on any basis other than merit. Coley responded 
to Downen’s letter by letter dated August 13, 1981 giving 
his version of what happened at the field day. Coley 
again related his version in his testimony during this hear­
ing as related hereinabove. In the letter Coley said:

I hope you will take proper action concerning this 
agent and my reputation as a livestock judge. (See 
Exhibit #13)

It has already been stated supra that the events that 
took place at the Madison County livestock field day are 
similar to the Murray Trucking Lines incident in that 
both were responses by employee to speech which was 
offensive to him as a member of the black race, the signs



A84

at Murray’s and the words spoken by Coley which he 
heard as “nigger” . There is an added dimension in the 
latter incident in that following the incident employee 
wrote to the dean of extension with copies to Luck, Far­
rell and the XJ.S. Department of Justice claiming that 
Coley in his role as a livestock judge had refused to award 
best animal to a black youth.

The rule that conduct and speech by an employee 
in opposition to acts of discrimination by private citizens, 
is not protected as it relates to employer discipline was 
stated in Silver v. KCA, Inc., 586 F. 2d 138 (Ninth cir. 
1978) as follows:

Not every act by an employee in opposition to racial 
discrimination is protected. The opposition must be 
directed at an unlawful employment practice of an 
employer, not an act of discrimination by a private 
individual. In addition, the means of opposition chosen 
must be legal . . . and reasonable in view of the 
employer’s interest in maintaining a harmonious and 
efficient operation.

In my opinion this rule applies to the acts of individ­
uals at the Murray Trucking Lines, that is the signs placed 
in the windows, and the speech of Coley at the Madison 
County field day on July 24, 1981 which Elliott, Neel 
and Boone heard as “nigger” . It is undisputed that both 
Korwin and Murray as well as Coley were not employees 
of The University of Tennessee Agricultural Extension 
Service but were private citizens and their acts in these 
incidents cannot be construed as acts of employer. There­
fore, it follows that Elliott’s acts were not directed in 
those incidents at any unlawful employment practice of 
the AES, his employer. Moreover, Elliott’s charge of racial 
discrimination by Coley in 4-H livestock judging events



A85

cannot be construed as directed at an unlawful employ­
ment practice of the AES. Although Coley had voluntarily 
and without pay participated in AES sponsored events 
such as the Madison County field day and 4-H livestock 
judging events it is clear that he was not an employee 
of the UTAES at any time related to these charges.

The weight of evidence supports Elliott’s argument 
that Coley did refer to a black 4-H member as “nigger” . 
Whether he said nigra, negra, or nigger, three people heard 
it as nigger and I so find. The First Amendment to 
the Constitution clearly does not prohibit a public em- 
loyee, in this case, an employee of the AES to respond 
in opposition to racially discriminatory acts of others, in 
this case private citizens Korwin, Murray, and Coley. It 
is also well understood that the right of free speech is 
not absolute at all times and under ail circumstances as 
stated by the United States Supreme Court in Chaplinski, 
supra. Moreover the law is clear that when an employee’s 
behavior extends beyond these protective bounds that the 
employer has the right to discipline its employee if it can 
prove that employee’s conduct exemplified undesirable 
traits in dealing with the public, citing again Weisbrod 
v. Donigan, 651 F. 2d 334 (5th Cir. 1981) which stated 
the rule as follows:

An employee cannot claim First Amendment protec­
tion for speech-related conduct where the ground for 
discharge was not the speech itself, but because it 
evidenced character traits undesirable in an employee 
(651 F. 2d at p. 336).

Also Accord, McGill v. Board of Regents of the State 
of Florida, 541 F. 2d 1073; Garza v. Rodriguez, 559 F. 
2d 259 (5th Cir. 1977), cert, denied, 439 US. 877 (1978).

The ultimate question relative to the charge of im­
proper job behavior at the Madison County livestock field



A86

day on July 24, 1981 is whether or not in fact, employee’s 
conduct was improper. Downen testified that he per­
sonally traveled to Madison County to investigate the inci­
dent. On November 5, 1981 Downen wrote to Elliott (Ex­
hibit '#112a) as follows:

I have now completed my investigation of your claim, 
and I am of the opinion that your conduct on that 
occasion was improper and your profanity intolerable 
for the following reasons:

First, you claimed Mr. Coley refused to award best 
animal to a black 4-H youth. This claim was totally 
untrue, and in fact, the exact reverse was true. Mr. 
Coley had in fact awarded best animal to a black 
4-H youth.
I find it very hard to understand how you could have 
failed to investigate the actual facts about your accusa­
tion prior to your publication of this accusation of 
alleged wrongdoing to me and the U.S. Department 
of Justice.
Moreover, your assertion that Mr. Coley should not 
be again used as a judge seems to have serious impli­
cations as to Mr. Coley’s integrity, especially in light 
of the fact that your accusation was not true.

Additionally, your use of profanity in front of Mr. 
Coley was totally improper job behavior for a profes­
sional staff employee in your position, especially since 
your outburst was not proceeded by first determin­
ing the actual facts...
In my opinion, your language in front of Mr. Coley 
may well be the type of abusive language which is 
prohibited by the University work rules. Accordingly, 
I am warning you again that verbally abusive out­



A87

bursts are improper job behavior and will not be toler­
ated and is the type of job behavior which can lead 
to further disciplinary action. Although I recognize 
fully your Constitutional right to express yourself, 
you must improve your behavior in dealing with people 
in Madison County community. When you perceive 
a social wrong, you should check out the facts before 
asserting your opinions. I expect you to make your 
assertions calmly, reasonably, and without profanity, 
or verbally aggressive and otherwise abusive words 
or behavior which will bring discredit to the Univer­
sity. (Emphasis added)

Here, as in the Murray Trucking Lines incident, it is 
clear that employee is not being disciplined for responding 
to what he perceived as racially discriminatory speech, 
but for the manner in which he responded and his subse­
quent response letter to Downen (Exhibit # 8 ) ,  Elliott’s 
response, I conclude included falsely accusing Coley of 
discrimination against black 4-H members in his livestock 
judging, without investigating the actual facts.

The letter from Dr. James Neel to Tommy Coley, 
supra, was introduced in evidence during this hearing by 
employee, the adverse party. That letter introduced by 
the adverse party written August 5, 1981 while the July 
24 incident was still fresh on Neel’s mind would be admis­
sible under well-established common law exceptions to 
the hearsay rule. In any event, by overwhelming weight 
of authority hearsay evidence may be admitted in adminis­
trative hearings with the trend toward admitting related 
testimony and allowing the trier of fact to assess the weight 
to be given to the testimony. That practice was followed 
in this hearing. Though employee was permitted to rely 
on Neel’s letter in support of his own testimony relative 
to this incident, I do not find it necessary to rule on



A88

the admissibility or the weight to be given to Neel’s letter 
in support of employer’s charge of improper behavior. 
This hearing examiner adopts the testimony of Coley and 
Boyette. This coupled with employee’s own statements 
that he was already “burned up” because Mr. Boone had 
not been interviewed about his RAL-GRO demonstration 
when he heard Coley talking about “ the little nigger boy” 
and his own admission during his testimony that he didn’t 
remember for sure what he said, that he was pretty mad 
leads me to conclude that employee’s behavior at the Madi­
son County field day on July 24, 1981 was improper and 
exemplified character traits undesirable in an AES em­
ployee.

Boone testified that he heard the word “nigger” as 
he was walking away from a conversation with Mr. Elliott 
but, that he was walking toward a barn to see a feeder 
pig operation and that he did not hear anything further, 
Elliott claimed that Coley had not only offended him by 
using the word nigger, but he heard him say that “I 
wasn’t going to place him first” and wrote Downen ac­
cordingly in his July 27,1981 letter, supra.

It is clear and undenied that if Elliott had questioned 
Coley about what he had heard or later investigated the 
facts he would have found that Coley did judge the dis­
trict competition and in fact awarded a black youth from 
Tipton County the grand champion lamb prize (testi­
mony of Turner, Coley, and Exhibit #16).

It is my opinion that Downen’s disciplinary action 
as outlined in his November 5, 1981 letter, supra, to 
Elliott was proper under the circumstances. Therefore, 
I find that employee’s profane response to what he per­
ceived as racially discriminatory speech and his subsequent 
false accusations against Coley are unjustified and not



A89

protected freedom of speech under the Constitution. Cha- 
plinski, supra; McGill v. Board of Regents of State of 
Florida, supra, and evidenced traits undesirable in an 
AES employee, Weisbrod v. Donigan, supra.

6. Charge of Violating Work Rule # 4  - Leaving Work 
Prior to End of Work Period and Repeated Failure 
to Inform Supervisor When Leaving a Work Station 
or Work Area

There are 27 University work rules under which The 
University operates. Section 500 of the UTIA Personnel 
Procedures Manual provides that behavior described in 
those rules on the part of employees of the UTIA will 
result in disciplinary action up to and including immediate 
discharge (Exhibit #76 ). Work rule # 4  provides as fol­
lows:

Failure of employees to report to their work place 
at the beginning of their work period. Leaving work 
prior to the end of their work period. Repeated failure 
to inform the supervisor when leaving a work station 
or work area. . .

T.C.A. 4-5-314(4), provides:

Findings of fact shall be based exclusively upon the 
evidence and record in the adjudicative proceeding 
and on matters officially noticed in that proceeding. 
The agency members experience, technical compe­
tence, and specialized knowledge may be utilized in 
the evaluation of evidence.

Drawing on my own experience and understanding of the 
extension organization, I recognize that while normal work­
ing hours are from 8:00 a.m. to 5:00 p.m. Monday through 
Friday, there must of necessity be some degree of discre­
tionary flexibility in working hours for professional em-



A90

ployees in order to effectively serve their clientele. A l­
though both Downen and Shearon testified that compensa­
tory time as such is not an official policy of the AES 
it is undisputed that the nature of an extension agent’s 
work is such that it often requires him to make contact 
with his clientele before and after hours and to conduct 
meetings and other after hours work-related activities. It 
was also undisputed in this hearing that an extension 
agent is professionally trained and expected to carry out 
his work responsibilities as a “professional” and that this 
requires a great degree of self-supervision (testimony of 
Downen, 'Turner and Shearon). While the University sys­
tem, including the Institute of Agriculture, officially sanc­
tions “ flex-time” which at the option of the respective 
division heads, allows employees where feasible to adjust 
their working hours between the hours of 7:00 a.m. and 
6:00 p.m., the official working hours of the AES is still 
8:00 a.m. to 5:00 p.m. However, again due to the nature 
of a professional extension worker’s job related responsibil­
ities, although permission to report to their work place 
late or to leave work prior to the end of the work period 
is not an established policy, it is permissible professional 
discretionary conduct in established practice throughout 
the AES organization. There was no substantial proof 
offered by employer that Elliott abused this discretionary 
privilege as it relates to work rule #4 . While Shearon 
testified that he found it hard to keep up with Elliott’s 
whereabouts, very little or no specific proof was offered 
by the University to prove repeated failure to inform 
supervisor when leaving a work station or work area.

The University claimed that Elliott returned from an 
officially authorized meeting at Tennessee State Univer­
sity, Nashville, Tennessee, on November 6, 1981 and falsely 
turned in on his expense account a claim for reimbursement



A91

for the evening meal. Shearon and Mary Ann Davenport, 
a secretary in the District One Extension Office, claimed 
Elliott returned to Jackson in early afternoon of that date. 
Davenport testified that as she was driving by she saw 
employee putting gas in his car at a station on Highway 
45 By-pass in Jackson on that date between the hour 
of 3:00 and 3:30 p.m. Shearon testified that he brought 
this to the attention of Mr. Luck who on investigation 
stated that he thought Shearon was mistaken, that he 
thought Elliott was in Nashville all that afternoon. Shearon 
then wrote Downen suggesting further investigation. Sub­
sequently, employee produced witness Deloris Townsend, 
nurse and receptionist in the office of Dr. William H. 
Grant who testified that he had an appointment with Dr. 
Grant on November 6, 1981 and was in Grant’s office 
at 4:30 p.m. on that date. A  letter from Dr. Grant to 
that effect had been introduced attesting that Elliott was 
in his office in Nashville, Tennessee at 4:30 p.m. on that 
date. Dr. Grant was deceased prior to the beginning of 
this hearing. Two additional witnesses, Andrew Winston 
and Alvin Wade testified that they saw Elliott in Nashville 
at approximately 2:30 to 3:00 p.m. on that afternoon (See 
also Exhibits #57, 58, 104, 105, 106, 107, 130).

Elliott admitted that he missed a staff conference on 
July 23, 1981 following the Milan Field Day. He testified 
that he had a headache and went home, laid down and 
went to sleep, that when called by Mr. Shearon he told 
Shearon that the hot sun had given him a headache and 
he was sick and that nothing else was said. If proven 
that employee deliberately did not return to the office 
on that afternoon for the staff conference, without an 
excuse, it clearly would be in violation of work rule #4. 
However, considering the flexibility permitted in the Madi­
son County Extension Office regarding sick leave, annual



A92

leave and office policy generally, I conclude that this ab­
sence was not in violation of work rule #4 .

The University also claimed that on July 31, 1981 
the employee left the office prior to the end of work 
hours and proceeded to play golf without permission and 
without taking annual leave. It was concluded, supra, 
under the specific charge of playing golf during working 
hours that employee did in fact play golf at approximately 
4:00 p.m. on that date. However, again based on my 
own knowledge of and experience in extension work and 
the testimony herein relating to flexibility and professional 
discretion of employees in handling their job responsibil­
ities, I cannot find this incident sufficient to be in viola­
tion of work rule #4.

It is unquestionably important that a supervisor 
know where employees under his supervision are spending 
their time and it is his responsibility to evaluate them 
on the basis of how they spend their time in relation 
to their job responsibilities. When viewed in the context 
of an extension agent whose work area includes an entire 
county it is in my opinion, not feasible or practical for 
an extension leader to know the whereabouts of the agent 
at all times during the day. A sign-out policy as initiated 
by Shearon for the Madison County office in August 1981 
serves a useful purpose in keeping the office generally 
informed as to the whereabouts of the staff. However, 
I do not believe that work rule # 4  was intended to restrict 
the freedom of movement of professional employees nor 
limit their professional discretion in fulfilling their work 
responsibilities, but is to be interpreted in accordance with 
the nature of the work. While I do not think it is fea­
sible or practical for an extension leader to know the 
exact whereabouts of an extension agent under his super­
vision at all times as it might be when the work area



A93

is confined to a specific location, an agent’s job assignments 
should be such as to enable his supervisor to determine 
whether or not he is leaving his work station or work 
area repeatedly without authorization. I find no conclusive 
proof that Elliott repeatedly left his work station or work 
area. Accordingly, it is my overall finding and conclusion 
that the University has not satisfactorily met its burden 
in proving employee in violation of work rule #4 .

7. Charge of Unauthorized Use of Telephone Violating 
Work Rule #22  - Charging Personal Telephone 
Calls to the Madison County Extension Service Of­
fice Telephone

The charge of violating work rule #22 was not in­
cluded in employer’s initial charges outlined in Downen’s 
letter of March 1, 1982 to Elliott (Exhibit #118) but 
was added later in employer’s response to employee’s mo­
tion for a more definite and detailed statement of the 
issues. University work rule #22 provides as follows:

Using University telephones for personal calls without 
permission except in an emergency or charging per­
sonal calls to the University.

Employee admitted that he had made personal long 
distance calls and charged them to Madison County Ex­
tension Office phone, but had paid for most of them. As 
an offer of proof there was a policy against charging long 
distance calls of a personal nature to the office phone, 
employer introduced a memorandum from Bob Whitworth, 
former Madison County Extension Leader, to the Madison 
County extension staff dated June 26, 1974 (Exhibit #32) 
which provides as follows:

Due to the accounting system of the county and the 
telephone company, as of this date personal telephone



A94

calls may no longer be charged to our office phone. 
Persons answering the telephone are asked not to ac­
cept charges for “collect” telephone calls in the future.

Shearon testified that he remembered seeing this memoran­
dum in reviewing “the administrative files” sometime after 
he came to the county. He further testified that later 
he learned from a secretary that Elliott had used the 
telephone for personal calls and wanted to pay for them, 
that she had reminded him that this practice had already 
been stopped and that the Whitworth memo was again 
reviewed. Shearon could not recall whether he reviewed 
it personally with Elliott or reviewed it in staff confer­
ence, but indicated that he did ask Elliott not to make 
such personal calls and that Elliott said he would not 
and that to his knowledge he had not been doing it until 
he discovered he had begun the practice again recently. 
Employer offered no additional proof to show that the 
Whitworth memorandum had been brought to the atten­
tion of employee or other members of the Madison County 
staff, or that he ever instituted such a policy himself, 
or made an effort to periodically check to see if any unau­
thorized calls were being made by any of his staff prior 
to the initiation of proceedings against employee in this 
hearing.

Shearon testified that he learned about employee’s 
personal long distance calls by accident, when he saw 
a notation on the telephone bill which,

Showed county part so much, personal so much, and 
a check” and I asked about the check, and I was 
informed that Mr. Elliott had given a check to, to 
pay this bill, and then I became concerned and started 
checking and found out that this had been going on 
for some time, unbeknownst to me, that Mr. Elliott 
had been making some payments.



A95

Shearon further testified that some of the calls Elliott- 
paid for and some he did not pay for between May 18, 
1981 and March 4, 1982, that,

Even when they are paid for, the agent’s time is 
spent on, personal matters, and something other than 
extension business by virtue of making these phone 
calls and certainly when they are not paid for, they 
are certainly not acceptable. (Emphasis added)

Judy Warren Matlock, a former staff member in the 
Madison County office, testified that about everyone in 
the Madison County office had made personal long distance 
phone calls and paid for them when the bill came in 
and that it had not appeared to be a problem while she 
was so employed. Similar allegations were made by em­
ployee, but no specific proof was offered. University work 
rule #22 prohibits using University telephones for personal 
calls without permission except in an emergency. How­
ever, it was undisputed that Shearon allowed all Madison 
County extension employees to make local personal calls, 
including himself. Furthermore, the Whitworth memo­
randum also shows that it has not been a custom for 
a long time to strictly follow a policy of no personal 
calls, local or long distance.

Whether call local, or call long distance and pay later 
is customary or not is not the issue. However, what has 
been and what was custom in 1981 and 1982 in the Madison 
County Extension Office relative to phone calls may be 
taken into consideration relative to what disciplinary ac­
tion should be taken under such circumstances if violation 
of work rule #22 in fact occurred (See Exhibits #33, 
34, 65, 66, 68, and 76).

Findings of Fact shall be based exclusively upon the 
evidence of record. However, the agency members expe­



A96

rience, technical, and specialized knowledge may be utilized 
in the evaluation of evidence, T.C.A. 4-5-314 (4), supra. 
Nist if the long distance calls made by Elliott were made 
to his legal counsel after these proceedings were initiated. 
Elliott claimed that he felt justified in using the extension 
office phone to call his attorney because Shearon admit­
tedly had used the same phone to call his attorney in 
the University’s General Counsel’s office and that he also 
called Dean Downen about matters pertaining to this hear­
ing after hours. Elliott testified that his counsel advised 
him that “we don’t want to be caught in the position 
. . .  we did wrong but you did wrong too, so you go 
pay the calls and that’s what I did.”

Although such a finding may appear harsh under the 
circumstances, the fact is undisputed that a number of 
personal long distance calls were made by employee from 
the Madison County AES phone and whether or not they 
were ultimately paid for by employee, University work 
rule #22 was violated. The charge is therefore sustained.

While the factual circumstances related, supra, do not 
constitute a justification or excuse for employee’s actions, 
but within keeping with the reputation of The University 
of Tennessee for its integrity and sense of fair play, may 
be considered as extenuating in prescribing a remedy.

8. The Charge of Violating the University of Ten­
nessee Institute of Agriculture Work Rule #25, 
Insubordination or Refusal of Employee to Follow 
Instructions or to Perform Designated Work Where 
Such Instructions or Work Normally and Properly 
May Be Required of An Employee

Specifically, employer charged that employee consis­
tently refused to carry out his supervisors instructions 
as follows:



A97

1. To complete the small farm group surveys and 
feeder pig producer surveys.

2. To carry out his assignment in the Cyprus Creek 
watershed, and other assignments.

3. Employee failed to appear at a calf sale on October
8, 1981.

9. The Charge of Inadequate Work Performance in 
That Employee Failed in a Timely and Proper Man­
ner to Complete Assignments Given to Him Pur­
suant to His Job Description, and Failed to Carry 
Out Instructions Given to Him By His Supervisors

The charges relating to work rule #25, and the charge 
of inadequate work performance are similar and interre­
lated. Therefore, charges # 8  and # 9  are dealt with con­
currently, infra.

Under the UAPA an agency is required to admit evi­
dence normally admissible in court but, if necessary, evi­
dence not admissible in court may be admitted T.C.A. 
4-5-13 (1). In Lettner v. Plummer, 559 S.W. 2d 785 (Tenn. 
1977), the court said:

Evidence is contested cases is not strictly limited to 
that which is admissible in court under traditional 
rules but “may also admit evidence which possesses 
probative value commonly accepted by reasonable pru­
dent men in the conduct of their affairs” .

Also, the UAPA creates a substantial and material evi­
dence rule. Thus, in administrative proceedings all evi­
dence is competent and may be considered, regardless of 
its source and nature, if it is the kind of evidence that 
“ a reasonable mind might accept as adequate to support 
a conclusion.” Competency of evidence therefore, for pur­



A98

poses of administrative agency proceedings rests upon the 
logical persuasiveness of such evidence to the “reasonable 
mind” to support a rational construction and furnish a 
reasonably sound basis for the action under consideration. 
South Central Bell Telephone Company v. Tennessee Pub­
lic Service Commission, 579 S.W. 2d 429, 440 (Tenn. App.
1979) . The U.S. Supreme Court has stated that substantial 
evidence is “more than a scintilla” , such relevant evidence 
as a reasonable mind might accept as adequate to support 
a conclusion—not “uncorroborated hearsay or rumor” , Con­
solidated Edison C. v. NLRB, 305 U.S. 197, 59 S. Ct. 
206, 83 L.Ed. 126 (1938). C.F. Industries v. Tennessee 
Public Service Commission, 599 S.W. 2d 536, 540 (Tenn.
1980) . See also T.C.A. 4-5-315 (4). The purpose of this 
rule is to preserve the autonomy of the administrative 
process in deference to the agency’s expertise and exper­
ience.

Whether or not charges are supported by material 
or substantial evidence is a question of fact, whereas 
whether or not an agency is acting within its statutory 
authority is a question of law.

An agency, acting upon pure speculation, cannot ignore 
uncontradicted material evidence and refuse to give 
any weight or consideration to it, if such evidence 
is of the kind of character that would naturally be 
expected to produce a more favorable ruling if con­
sidered.

Uncontroverted material evidence cannot be ignored. The 
rule was well stated in South Central Bell Telephone Com­
pany v. Tennessee Public Service Commission, supra, as 
follows:

Furthermore, it is a well-settled rule if a party knows 
of the existence of an available witness on a material



A99

issue and such witness is within his control, and if, 
without satisfactory explanation, he fails to call him, 
the . . . (Court) . . . may draw the inference that 
the testimony of the witness would not have been 
favorable to such party. 49 American Jurisprudence 
2nd (Evidence, Sec. 180) at p. 224. See also Culburtson 
v. Southern Bell, 18 HOW. (U.S.) 584, 15 L.Ed. 493: 
National Life and Accident Insurance Company v. Ed- 
dings, 188 Tenn. 512, 221 S.W. 2d 695 (1949).

These rules, in my opinion, are applicable to this admin­
istrative hearing and the issues relating thereto. If it can 
be found that the agency, the AES in this case, has acted 
in good faith and not in an arbitrary or capricious man­
ner, or otherwise abused its discretion and has followed 
a clear path of reasoning and can show a rational basis 
for its charges, then its position must be sustained.

The UAPA establishes the minimum quantity of evi- 
ence and the preponderance of evidence standard of proof 
for administrative hearing adjudication proceedings. This 
may not be determined by the number of witnesses but 
by the greater weight of all the evidence or more convinc­
ing than the evidence which is offered in opposition to 
it. See also Steadman v. Securities Exchange Commission, 
101 S. Ct. 999 (1981), supra.

Employer’s offer of proof on the charge of inadequate 
job performance was primarily directed at employee’s pri­
mary job assignment in agricultural programs and more 
specifically his assigned responsibility in the small farm 
family program.

Elliott is an AES employee with 15 years service, 
all of which have been served in Madison County. It 
is undisputed by Elliott’s supervisors Shearon, Turner, and 
Downen that he is not only capable of doing excellent



A100

work, but that he has in fact accomplished a lot of good 
work with small farmers and other clientele in Madison 
County. Moreover, while he was not called to testify, 
Elliott’s District Supervisor Luck, who is responsible for 
officially rating AES employees in District One, subject 
to the approval of the AES administration, rated Elliott’s 
performance as average or above every year since he be­
came supervisor in 1977 through June 30,1981.

In testifying as to his familiarity with Elliott’s work 
Downen said:

It, up until June 1981, it would be about average for 
all the agents in the State who have been with us 
15 years or so, as Mr. Elliott has.

He further testified that he had not been informed about 
any problem with Elliott’s performance until after the 
Murray and Coley incidents came up, that his knowledge 
of individual agent’s activities generally would be super­
ficial, but that he understood what programs were going 
on in the aggregate on a county and district basis through 
normal reporting channels,

But in terms of what agents are doing on a day- 
to-day or even a week-to-week or even a monthly 
basis, I do not know. Mr. Elliott has a job description 
that describes what he is expected to do, in the area 
for which he is responsible. Mr. Shearon supervises 
that, and then, Mr. Shearon as the county extension 
leader, is responsible to the district supervisor. The 
five district supervisors in the State answer to me, 
therefore, two layers of supervision are between me 
and Mr. Elliott. (Emphasis added)

It was stated, supra, that in Tennessee when a county 
agricultural extension committee makes a recommendation 
affecting the employment status of an agent, the dean



A101

of extension may accept or reject the recommendation. 
This final authority has been delegated to the dean of 
the UTAES by the secretary of the U.S. Department of 
Agriculture, T.C.A. 4-9-3406, supra. It is clear that 
a county agricultural extension service committee has no 
authority to act in any capacity on extension-related mat­
ters outside its own county. Furthermore, I can find no 
precedent in the State of Tennessee whereby a county 
agricultural extension committee has made recommenda­
tions relative to an agent’s employment status based on 
job performance. Under normal circumstances and log­
ically, action resulting in the removal of an agent from 
a county on the basis of inadequate job performance would 
be initiated and recommended by the agent’s supervisors 
who are in a position to evaluate performance according 
to established AES policy and procedure.

According to UTIA AES established policy of pro­
cedure a system of “progressive discipline” (Exhibit #117, 
supra), “ shall” be followed. In my opinion, the system 
of progressive discipline does not necessarily apply in all 
cases in the removal or transfer of an agent from a county 
into another position. The termination of an agent on 
the other hand, can only be accomplished by strictly adher­
ing to the well-established policy and procedure of the 
UTIA AES. It was stated, supra, that the purpose of 
“progressive discipline” is to correct improper behavior 
and/or inadequate performance. The related issue will 
be addressed specifically, infra.

This case is unique in the sense that employee Elliott 
has been charged with both improper and/or inadequate 
behavior and inadequate performance. On August 28. 1981 
Mr. Billy Donnell, chairman of the MCAEC, wrote to 
Dean Downen (Exhibit #111) as follows:

The Madison County Extension Committee met last
night, August 27, 1981, for its regular meeting, and



A102

also to take up the matter of Mr. Robert B. Elliott 
as was requested by the committee in a special meeting 
held August 17, 1981, in the Agricultural Complex. 
All members of the committee were present at both 
meetings. I have attached copies of the minutes of 
the August 17th meeting and also a copy of the secre­
tary’s draft of the minutes of the August 27th meeting 
and apologize that she has not had the opportunity 
to write up the final copy yet.

The Madison County Agriculture Committee passed 
a resolution stating that Robert B. Elliott is no longer 
effective in his position as assistant extension agent 
with the agriculture extension service because of in­
subordination and because of the incidents mentioned 
in the meetings and in the letters attached as exhibits 
to the minutes by the secrteary. The actions in ques­
tion were the occurrence on or about June 18, 1981, 
in the offices of Murray Truck Lines, Inc. in Jackson, 
Tennessee, and the incident which occurred at the 
Madison County livestock field day on or about July 
24, 1981.

Incidents of unacceptable job behavior cited at the 
meeting by Mr. Shearon and by other persons present 
were Mr. Elliott’s refusing or failing to maintain and 
produce mileage records; his refusal or failure to keep 
the office clearly informed of his whereabouts at all 
times; his failure to complete a survey of small farmers 
throughout the county for the purpose of determining 
how the extension service could be more helpful to 
them; his failure to set up a file on each small farmer 
and work up a farm plan with five or six farmers 
each year; his failure to work up a sample farm plan 
on farms with sales under $10,000 to use in presenting 
a program to the county agricultural committee and



A103

his failure to take over the feeder pig program and 
to develop newsletters and other educational materials 
to be given out to the feeder pig producers in the 
small farm group and to attend the feeder pig sales 
on a regular schedule so he could get to know the 
producers better and help when the sales were needed, 
all of the above as requested by the extension leader. 
He was also cited for failure to attend a scheduled 
staff conference.

The resolution that passed stated “because of insub­
ordination and because Mr. Elliott cannot be effective 
in his position, this committee recommends to The 
University of Tennessee Extension Service that Mr. 
Elliott be removed from service in this county and 
the committee requested the Dean of the Agricultural 
Extension Service of The University of Tennessee, 
Institute of Agriculture, to take the appropriate action.

If you have any further questions or need further 
information from us, please feel free to write me or 
Mr. Shearon or call us at any time.

As indicated in Mr. Donnell’s letter, all members of the 
MCAEC were present. The minutes, introduced by em­
ployer as Exhibit #42, indicated extension personnel pres­
ent at the August 27th meeting were Curtis Shearon, 
Robert Elliott, Judy Cloud, and Johnny Butler. Elliott 
testified during the hearing that District Supervisor Luck 
was there, but left the meeting early. The minutes pro­
vided in part as follows:

Many character witnesses spoke in favor of Mr. Elliott.

Mr. Shearon gave a written report concerning Mr. 
Elliott’s work habits and lack of cooperation. The 
report is attached to the minutes.



A104

Chairman Donnell read several letters concerning Mr. 
Elliott. These letters are also attached to the minutes.

Mr. Tom Korwin and Mr. Steve Murray of Murray 
Truck Lines were in the audience. They commented 
on the letter Mr. Korwin sent Dean Downen. An 
employee of Kelly Tubbs Cabinet Shop, which is next 
door to Murray Truck Lines, also entered the discus­
sion.

Field day participants, Tommy Coley, Mr. Gary Boy­
ette, Mr. Willie Boone, Mr. Paul Bond and Mr. Shearon 
were heard.

After a lengthy discussion, Mr. Arthur Johnson made 
the following motion: because of insubordination and
because in my opinion, Mr. Elliott cannot be effective 
in his position, I move that this committee pass a 
resolution of recommendation to The University of 
Tennessee Agricultural Extension Service that Mr. El­
liott be removed from service of the county and that 
the committee request the Dean of the Agricultural 
Service of The University of Tennessee Institute of 
Agriculture to take the appropriate action.

The motion was seconded by Mr. Jimmy Hopper. The 
motion carried four to two.

The letters referred to in Donnell’s letter and in the August 
27, 1981 minutes, including the Korwin letter to Downen 
and the Elliott to Downen letter relating to the July 24, 
1981 field day incident, were introduced in evidence at 
various stages of this hearing and discussed herein where 
deemed appropriate and significant to the findings and 
conclusions related thereto.

Shearon testified that he gave his report to the MCAEC 
because he felt it was time for them to “make a determina­



A105

tion” about Elliott. It is clear that the MCAEC has no 
statutory authority to “ determine” whether or not an 
agent’s employment with the AES will be terminated. 
Although that committee, as are all county committees, 
is an advisory body and the crucial issues in this hearing 
relative to performance and termination do not hinge on 
what the committee said or did, harmony must exist be­
tween the AES and county committes. Obviously, on the 
question of removal of an agent from a county where 
county appropriations are involved, committee recommen­
dations must be considered and acted on objectively in 
order to maintain harmony. In this case, Shearon reported 
to the AMAEC on Elliott’s behavior before any official 
action was taken on reprimand given to Elliott relative 
to his performance. The evidence of record reflects that 
the chairman of the MCAES, Mr. Donnell, had asked 
Shearon to appear before the committee on August 27, 
1981 to give a report on Elliott’s behaviour and perfor­
mance. Whether it was requested or given voluntarily, 
it is clear that the extension leader here did go be­
fore the MCAEC and relate to them information reflecting 
poor job performance before the agent, Elliott, was officially 
reprimanded. To the contrary, Luck had rated him highly, 
3.0 or above up through June 30, 1981 and if he was 
in fact present on August 27, 1981 he said nothing nor 
did anyone say anything before that committee about the 
ratings or justify why they were making these statements 
when they in fact had given him official ratings of 3.0. 
This reflects an obvious breakdown of communications 
between Shearon and his supervisors and the extension 
administration. Now, later in Downen’s December 5, 1981 
warning letter to Elliott, supra, after he had “ investigated” 
the Coley incident, he warned Elliott in writing about 
his behavior, referring to both the Murray and Coley in­



A106

cidents. While Downen’s August 5, 1981 letter to Elliott 
referred to both behavior and performance, it cannot be 
construed to be in reference to any past behavior at that 
time, but related specifically to the Murray Truck Lines 
incident. Employer claimed that Elliott had been given 
numerous oral warnings about his performance since 1976, 
and more specifically by letter on February 13, 1980 (Ex­
hibit #24, supra). I can find no substantial evidence 
in the record to show conclusively that Elliott was ever 
officially warned or otherwise notified that his perfor­
mance prior to the August 27th meeting was not satis­
factory according to AES standards.

Furthermore, Downen’s November 5 letter stated that 
. . is the type of improper behavior that can lead to 

further disciplinary action” . This was on November 5th 
and implies that Elliott is only being warned here and 
that he still has an opportunity to correct his behavior. 
While Elliott is told that his behavior must improve, no 
time frame in which he needs to improve was given. The 
implication, however, was immediately; “no further abu­
sive outbursts will be tolerated” . Within six weeks, on 
December 18, 1981, Downen wrote his termination letter, 
supra. I can find no evidence of record that there were 
any further incidents of improper behavior by employee 
during this period of time.

The findings and conclusions herein must finally relate 
specifically to the actions of the AES and not the MCAEC. 
However, while normally disciplinary matters relating to 
an extension agent’s job performance are resolved within 
the AES organization, without initial county involvement, 
the record reflects that the incidents at the Murray Truck 
Lines and Madison County field day prompted the MCAEC 
to meet August 17, 1981 and subsequently on August 27, 
1981. While it should be kept in mind that the Madison



A107

County Committee is an advisory body it is also apparent 
that its response to the Murray and Coley incidents and 
to Shearon’s report influenced Downen’s decision to pro­
pose Elliott’s termination.

Downen testified that he personally interviewed each 
member of the MCAEC individually and separately and 
that he concluded that although some members of the 
committee related that the Murray and Coley incidents 
influenced their vote, their primary reason for voting to 
remove Elliott from the county was based on his perfor­
mance as an extension agent. Both Donnell’s letter to 
Downen and the minutes of the August 27, 1981 meeting 
of the MCAEC, supra, indicates that their recommendation 
was based on both behavior and performance. It is further 
evident that Shearon’s written report to the committee 
had a significant influence on the vote. That report was 
submitted in evidence by employer as Exhibit #41 and 
provides as follows:

This is certainly not a pleasant task. It grieves me 
greatly to make the remarks I am about to make.

For the past five years, I have put forth a great 
effort to work with the Madison County Extension 
staff, the county agricultural committee, the county 
judge and the people of Madison County. For the 
most part, this has been a very pleasant and rewarding 
experience.
However, in view of many things that have happened 
and more especially, what occurred July 23 and 24, 
I find it most difficult to work with Associate Exten­
sion Agent, Robert B. Elliott.

Mr Elliott was a tour leader at Milan on July 23rd 
on one of the buses going to the machinery demonstra­



A108

tion. When he returned from his first tour, he came 
by the registration tent where I was assisting, I asked 
him how the tour went and he said it would have 
been ok if some of “them dudes” would do what they 
are told and then he went on and made a special 
note about the people on the bus from Madison County 
being the worst of all. I do not know who was on 
the bus from Madison County and did not ask.

I had a staff conference scheduled for 1:30 p.m. to 
2:00 p.m. that afternoon (July 23, 1981), or as soon 
as we could get back to the office from the field 
day. It rained and we left early. John Butler and 
I were back between 1:00 p.m. and 1:30 p.m. Miss 
Cloud was there and ready for conference. We waited 
until about 2:30 p.m. and still had not heard from 
Mr. Elliott. I finally decided to call his home and 
asked Miss Cloud to dial his number. He was at 
home. He stated he had a headache and decided not 
to come back to the office. I asked him if he remem­
bered the conference. He said that he did, but didn’t 
feel like coming. He made no explanation as to why 
he did not call to inform us of his illness.

On Friday, July 24, 1981 at the Madison County Live­
stock Field Day he left about 1:15 p.m. without par­
ticipating in the tour and helping move the tables, 
chairs, etc. back to the office. He became upset over 
a conversation between Mr. Tommy Coley and Dr. 
Jim Neel. He came by where I was and in the very 
foul language said he was going to the office. I asked 
him what was wrong, but didn’t get a clear answer. 
He was cursing someone and I though he said some­
thing about being called a negro boy. I later found 
out from Mr. Coley that Mr. Elliott had very rudely 
interrupted a conversation between he and Dr. Neel.



A109

He had accused Mr. Coley of making racially biased
decisions in livestock judging, and had vehemently
cursed Mr, Coley.

A few examples where we have not agreed are:

1. Asking him to set up a file on each farmer and 
work up a farm plan with five or six farmers 
each year.

2. When the 1974 ag census came out I went over 
it with him and asked him to take the information 
on farms under $10,000 and make up a sample 
farm plan to use in presenting a program to the 
county agriculture committee, and also, explain to 
him that it could be used as an approach when 
encouraging small farmers to plan and make im­
provements.

3. In 1979 we were offered an opportunity to employ 
a program aid to visit and survey small farmers 
throughout the county for the purpose of determin­
ing how extension could be more helpful. Dr. 
Turner left it up to me and Mr. Elliott as to whether 
or not we employed an aid or whether he did 
the survey. I talked it over with him and he 
said that he would do the survey. He seemed 
interested and therefore, we did not employ anyone. 
On numerous occasions, I asked him about the 
survey and received many evasive answers. No 
completed surveys have ever been turned in.

4. After Mr. Butler was given extra assignments in 
connection with RMC program, I asked Mr. Elliott 
to take over the feeder pig program. Almost all 
of the approximately ninety feeder pig producers 
are in the small farm group. I suggested that 
he develop newsletters and other educational ma-



A110

terial and send it to them on a regular basis. I 
also suggested that he attend sales on a regular 
schedule about (about once a month) to get to 
know the producers better and to help with the 
sales when needed. This suggestion has been 
largely ignored.

5. Mr. Elliott is a good writer and I have told him 
so many times. He started writing for the Jackson 
Journal when it began publication and was doing 
a good job for a few weeks. After missing his 
column for several weeks, I encouraged him to 
resume. So far, he has not done so.

6. Probably the most perplexing aspect of working 
with Mr. Elliott is his refusal to keep the office 
clearly informed of his whereabouts at all times. 
It is a policy of the extension service that agents 
leave word with the secretary concerning their 
destination while out of the office and the time 
of return. I feel this is important, and have re­
peatedly stressed it in staff conference and individ­
ually. It is very common for Mr. Elliott to leave 
the office before mid morning saying he was going 
up town, or to check a lawn. He seldom if ever, 
tells when he will return. Sometimes he will re­
turn for varing lengths of time and then leave again. 
Often, however, he does not come back into the of­
fice at all.

On December 9, 1981 Shearon wrote to Elliott inform­
ing him that:

By copy of this letter I am advising Dr. M Lloyd 
Downen, Dean of the Agricultural Extension Service, 
that I consider your overall performance to be inade­
quate for this calendar year. (Exhibit #59a)



A l l l

In Downen’s letter of December 18, 1981 introduced as 
Exhibit #115, supra, Downen informed Elliott as follows:

I have received a copy of Mr. Curtis Shearon’s Decem­
ber 9, 1981 letter regarding your job performance in 
which Mr. Shear on states that your overall job perfor­
mance has been inadequate for this calendar year.
As you know, I have personally given you two written 
warnings this year regarding your job behavior and 
performance. Moreover, as you also know the Madison 
County Agricultural Extension Committee has recom­
mended to me that you be removed from Madison 
County due to your inadequate job performance.

Downen testified in both direct and cross-examination re­
peatedly that based on his interviews with county com­
mittee members he concluded that although some of them 
said the Murray and Coley incidents had some influence 
upon their vote, the primary reason given for those voting 
for the resolution to remove Elliott from the county was 
based on inadequate job performance. Again, in consider­
ing both his testimony and official communciations with 
Elliott it appears evident that the committee recommenda­
tion was weighed heavily in his decision but goes a step 
beyond that recommendation as conveyed to Elliott in 
his December 18,1981 letter, supra, as follows:

Due to the serious allegations and incidents of inade­
quate job performance and inadequate job behavior 
which have continued this year, I have decided to 
propose that your employment with the University 
of Tennessee Agricultural Extension Service he ter­
minated for inadequate job performance and inade­
quate job behavior. (Emphasis added)

Moreover, it is apparent from the foregoing that the com­
mittee recommendations relative to performance was based 
on the information provided them by Shearon.



A112

Although the county committee involvement in this 
situation relating to and employee’s performance appears 
to set a precedent which based upon my own knowledge 
and experience as a member of the UTIA staff and former 
AES staff member may be questionable, I do not find 
it necessary to attempt to second guess the dean of exten­
sion in this respect. The fact remains that employer AES 
has brought charges of improper and/or inadequate be­
havior and inadequate performance against employee, El­
liott. Those charges and the issues relating thereto are 
dealt with separately herein and the charge of inadequate 
job performance must now be dealt with.

As stated above, employer’s proof of inadequate job 
performance was directed in an effort to show employee’s 
failure to fulfill his primary job assignment in agricultural 
programs, more specifically his assigned responsibility in 
the small farm family program.

As an offer of proof Shearon testified that when he 
came to Madison County in 1976 that Elliott’s primary 
job assignment was in the area of agriculture with the 
primary responsibility of working with small farmers 
throughout Madison County. He further testified that hav­
ing come from a demonstration county and very much 
interested in that type of teaching, suggested that Elliott 
summarize the 1974 agricultural census data and develop 
a “benchmark plan” , to be used to show other farmers 
what could be done to help them in better utilizing the 
resources available to them and to have it prepared to 
present at a county ag committee meeting. Shearon said 
the plan could have easily been done in one week but 
testified that such a plan had not been completed as yet. 
Elliott testified that he had started a plan with one farmer 
but before it could be fully implemented the farmer left 
farming, that he had tried to get others interested but



A l l  3

indicated that it is very difficult to develop a sophisticated 
farm plan with a farmer who can hardly read or write. 
He did indicate also that he did not like to do farm planning 
and that he felt it more appropriate for the type of farmers 
with whom Mr. Butler works. There was no offer of 
proof by employer that any official reprimand was ever 
given Elliott for his failure to develop the “benchmark 
data” .

It was undenied by Shearon, Turner and Downen that 
Elliott was doing a good job when Shearon came to the 
county in 1976 and that he had been doing a good job 
each year since he came to the county some ten years 
prior to that time. Furthermore, his MBO ratings were 
above average for all of those years. Based on this, it 
must be presumed that in the judgment of his supervisors 
that he had a reasonably good knowledge of the needs 
of the small farmers in Madison County. Furthermore, 
while Shearon testified that this was an assignment never 
completed, I am of the opinion that, based on his own 
experience with test demonstration programs he was mak­
ing a good faith effort to assist Elliott in improving his 
program assistance to the small farmers of Madison County 
rather than making a direct assignment. If this was not 
the case, it would have been a simple matter for Shearon 
to have put the assignment in writing, with a copy to 
Turner or at least made it clear that the assignment was 
to be completed within a period of time. Subsequent 
performance ratings further indicate that this was not 
considered a problem of sufficient significance to require 
a reprimand either from Shearon or district supervisors.

Shearon testified that Elliott possesses “very excellent 
capabilities, as good as most people I have worked with, 
and when he is personally interested in an assignment 
he can do a very good job, but when Mr. Elliott does



A114

not like an assignment, it is very difficult to get him 
started and more difficult to get him to complete an assign­
ment” . Again, it appears that a simple supervisory solution 
when a supervisor is alerted to a potential problem of 
this nature would be to make a specific assignment, give 
a reasonable deadline, and if not completed within that 
deadline take appropriate steps to correct the problem, 
including a reprimand and beginning a clearly outlined 
disciplinary procedure if necessary, always keeping super­
visors informed and seeking their advice and counsel as 
needed. Generally, when potential problems or problems 
are not specifically dealt with, rather than going away 
they become more difficult to handle later.

Shearon testified that Elliott’s lack of planning per­
sisted in spite of his “efforts to motivate Mr. Elliott to 
begin the planning process for the small farm program.”

Employee produced some 90 witnesses who testified 
relative to the services he had performed for small farmers 
and others in Madison County from the time he first 
came to the county up to and including the date of their 
testimony during this hearing. Although most of them 
were credible witnesses who testified favorably relative 
to Elliott’s job performance, it is a well-established rule 
that it is not the number of witnesses that is important 
but the quality of the witnesses testimony that carries 
the most weight. Evidence shows that Elliott did a lot 
of good work and there’s no argument or disagreement 
that he is quite capable of doing good work, in fact, much 
better work than he had been doing.

The AES organizational structure clearly provides for 
line supervision of employees at all levels. Within the 
framework of the organizational structure the role of self­
supervision by an employee, though he is a professional



A115

and should at all times perform and conduct himself as 
a professional, does not substitute for line supervision or 
relieve line supervisors of their professional responsibilities 
to supervise employees below them in the line of the 
organization, to evaluate them and ultimately to provide 
direction in areas where improvement is needed based 
on those performance evaluations.

As indicated, supra, the UTAES follows the MBO sys­
tem of evaluating performance of its agents. Performance 
ratings of county professional employees are recommended 
by county extension leader to the district supervisor usu­
ally sometime in February of each year. The supervisor 
then assigns an official rating for that fiscal year which 
carries through June 30th and with the final approval 
of the State extension administration including the dean 
of extension, employee is formally notified sometime in 
July of his rating for the fiscal year ending that June 
30th.

In support of its charge of inadequate job performance 
employer introduced Institute of Agriculture, University 
of Tennessee professional personnel rating forms for the 
years 1976 through 1981 which represented Extension 
Leader Shearon’s recommended evaluations for Robert B. 
Elliott for those years as less than desirable (Exhibit 
#18 ). For those same years employee was rated 3.0, or 
above which is average, by District Supervisor Luck who 
has the authorized responsibility for assigning official 
ratings for the AES in his district, with the exception of 
1976 for which year Elliott received a 4.0 rating from 
Luck’s predecessor, H. T. Short. Throughout the hearing 
employer relied on Shearon’s evaluations and testimony, 
ignoring Luck’s official ratings for those years (Col. Ex­
hibit #64 ). This will be addressed more specifically,



A116

infra. For the time being we will take a closer look at 
Shearon’s evaluation of Elliott’s job performance. Keeping 
in mind that the MBO rating scale ranges from 1.0 to 5.0 
with a rating of 2.5 to 3.5 considered an acceptable and 
satisfactory rating. Ratings above 3.5 are considered be­
yond acceptable standards and a score of 1.6 to 2.4 is 
marginal. A  rating of below 1.5 does not meet minimum 
standards. In 1977 Shearon recommended an average 
rating of 2.6 for Elliott. For planning which is one of 10 
categories on the form, Elliott was given a rating of 3.0 
(Exhibit # 18 ).

Keeping in mind that employees are rated on a fiscal 
year basis, with the rating process beginning with recom­
mendations from the extension leader in the latter part 
of February with the agent finally being informed of his 
official rating sometime after June 30th of that year, 
Shearon’s recommended ratings for Elliott for the years 
1978 through 1981 were 2.5, 2.4, up to 3.1 in 1980 and back 
down to 2.2 in 1981 (Exhibits #19, 20, 23, and 31). While 
Shearon referred to his ratings on a calendar year basis, 
it is undisputed that an agent’s official AES rating begins 
with the recommendation from the extension leader and 
is finalized with administrative approval at the end of 
the fiscal year June 30th (Shearon and Downen testimony, 
Exhibits #59a, 115). Furthermore, Shearon testified that 
the rating forms were provided him by Extension Super­
visor Luck under cover letter with instructions for him 
to complete it by a certain date and to be returned to 
Luck for his use in further ratings of employees of Dis­
trict One. Shearon further testified that he was instructed 
to study the guidelines which are printed on the back of 
the rating form, that he had studied those guidelines and 
was familiar with same. In explaining the guidelines 
Shearon said:



A117

A  satisfactory, average score between 2.5 and 3.5 
overall performance meets acceptable standards. Fair, 
average score between 1.6 and 2.4 overall performance 
is marginal or less than level desired, not promotable 
so long as problem or problems prevail. A formal 
plan of improvement is required and if progress is 
not made in a reasonable time, the person should be 
reassigned or replaced.

The guidelines for completing rating form do in fact pro­
vide that “a formal plan for improvement is required” 
for ratings below 2.4. Employer offered Shearon’s ratings 
in support of its charge of unacceptable job performance, 
Luck’s official administratively sanctioned ratings notwith­
standing. Even so, Shearon’s own recommended ratings 
were above the 2.5 acceptable standard for every year 
except the 2.4 rating in 1979 and 2.2 in 1981. I find no 
evidence of record to show that employee was ever pro­
vided a formal plan for improvement as provided in the 
rating guidelines. An inference can be drawn here that 
while Shearon may have been making a good faith effort 
to correct what he perceived as less than desirable per­
formance, he nevertheless recognized that he was bound 
by the official ratings made at a higher level.

In 1979 by directive from the United States Depart­
ment of Agriculture to the head of the State Agricultural 
Extension Services, including Tennessee, a nationwide pro­
gram designed for reaching small farm families was begun. 
Dean Downen assigned the responsibility of developing 
a plan of action for the Tennessee AES to emphasize the 
small farm family program to AES Associate Dean, Troy 
Hinton. A plan developed by Hinton provided for bench­
mark surveys in each of the five agricultural extension 
districts, to be implemented through the five associate 
district supervisors in charge of agricultural programs.



A118

Funds were made available to each district to hire five 
program assistants per district who would under the super­
vision of the agent in charge of small farm family pro­
grams, would take benchmark surveys “of as many farms 
as practical” in that county (Exhibit #21a).  Associate 
District Supervisor Turner and Extension Leader Shearon 
both testified that they “asked” Elliott whether or not 
he wanted to utilize a program aid to conduct the surveys 
in Madison County. Shearon notified Turner that Elliott 
desired to participate in the plan of action but wanted 
to complete the surveys himself without a program assis­
tant. Elliott denied that he agreed to conduct the surveys 
without the assistance of a program aid.

Now up to this point in time, the testimony of Shearon, 
Turner and Downen indicated there had been problems, 
“frustrations and disappointments” in efforts to get Elliott 
to collect benchmark data, do farm planning, etc.; yet dur­
ing 1979 when obviously according to proof offered in this 
hearing, at least Shearon and Turner perceived Elliott’s 
performance relative to “ data collecting” to be a problem, 
when the opportunity to employ a program aid to assist 
Elliott in getting “needed” information together became 
available, the decision of whether or not to utilize such 
an assistant for which funds were readily available was 
left to Elliott. Turner testified that the completion of 
this plan of action by the participating counties was “of 
critical importance” because “ this was really an oppor­
tunity to intensify program planning data related to the 
small farm family audience” . Considering the importance 
placed upon completion of this plan by Elliott’s super­
visors along with previous “ disappointments” , would it 
not have been appropriate for Shearon to exercise super­
visory authority and insist, and in fact direct that a 
program aid be employed to assist Elliott? Furthermore,



A119

assuming Turner was aware of the previous problems, 
which was so indicated by his testimony, should he not 
have, as Shearon’s immediate supervisor called this to his 
attention? While the related supervisory decisions may 
have a bearing, whether or not a program aid was used 
or who was responsible for not using one is not the issue, 
but rather whether or not Elliott’s job performance was 
unsatisfactory relative to the assignment.

According to plan, surveys under the small farm plan 
of action were to be completed by June 1979 after which 
results were to be summarized. Shearon testified that 
he did not know why “Mr. Elliott did not turn in any 
survey forms” . The question that arises in the mind of 
this hearing examiner is why not find out “why” at 
this point in time and issue some specific instructions. 
There is no evidence of record to show that there was any 
written document directing Elliott to “get them done” or 
any official reprimand for not completing the surveys ac­
cording to the state plan. Turner testified that he held 
Elliott responsible for the failure to do the surveys and 
summary for the 1979 plan of action for the small farm pro­
gram. Turner said “Mr. Elliott is a professional. He has 
had the responsibility and he knew he had the respon­
sibility for the small farm family audience” . Turner fur­
ther stated that “when one of our agents says they are going 
to do an assignment we believe they are going to do it” . 
Both Turner and Shearon testified that Shearon, as Elliott’s 
supervisor, worked with him during the survey period 
reminding him of the assignment and made a sincere effort 
to motivate Elliott to complete the assignment which El­
liott failed to do. It is undenied that neither Turner nor 
Shearon took any affirmative disciplinary action against 
Elliott in 1979 for failure to complete the surveys. In a 
staff conference in 1980 Elliott indicated that he “planned



A120

to continue with the low-income survey that he was in 
the middle of completing” (Exhibit #25 ).

In weighing the evidence I conclude that Elliott did 
understand his assignment to do the small farm survey and 
it is undenied that the survey was not in fact completed 
at the time the charges were brought against him. How­
ever, it cannot be overlooked that no formal reprimand or 
disciplinary action was taken against Elliott. It appears 
there was no serious question of performance raised prior 
to the Murray and Coley incidents in mid 1981. This is 
further verified by an official rating of 3.0 by Luck for 
that year. Wherein lies the “professional” responsibility of 
the extension leader and program supervisor to see that 
assignments are completed? At what point should a super­
visor exert some authority and direction where problems 
are “perceived” ? If a problem exists with an employee, if 
disciplinary action is to be taken, it must be taken at the 
appropriate time. The UTAES organizational structure 
provides for supervision at all levels up through the dean 
of extension. Accordingly, in operation, if a problem occurs 
at the county level and it cannot or is not satisfactorily 
dealt with, then it should go to the district level, through 
the state leader for agricultural programs, and ultimately 
to the dean. Furthermore, this must be handled within the 
established disciplinary procedure for the UTIA extension 
organization where terminations are involved, University 
Personnel Policy and Procedures, Sec. 160, Po 2. As it 
relates to Elliott’s assignment to do the same farm surveys, 
although the assignment was not performed, the fact that 
no disciplinary action was taken against him and that it 
was overlooked as verified by Elliott’s official ratings for 
those years (Col. Exhibit #64 ), in my opinion, precludes 
employer from coming back some two and a half years later 
and picking up or adding this to the charge of poor work



A121

performance. It must be noted that following this period 
of obvious failure to complete the surveys that on February 
13, 1980 Shearon’s recommended rating for Elliott was an 
overall average of 3.1, with an official overall rating of 3.0 
from Luck.

Employee is specifically charged with refusing to carry 
out his assignment in the Cyprus Creek Watershed.

In the minutes of the Madison County Extension Office 
Conference August 11, 1980 introduced as Exhibit #28, 
it was reported as follows:

Mr. Shearon mentioned 88 families located in the 
Cyprus Creek Watershed which could be used for 
special emphasis with Mr. Elliott. He asked Mr. El­
liott to visit with some of the farmers to see what 
needs they had which might be worked into the farm 
management sessions. He also told Miss Cloud she 
might benefit from visiting with Mr. Elliott when 
she had the chance and emphasize her area of ex­
tension work which she could offer to these families. 
The list of families are already compiled. (Emphasis 
added).

Elliott testified that the Cyprus Creek Watershed 
area included the communities of Huntersville and Den­
mark. He further testified that this was an area in which 
he had done most of his work, an area where a large 
percentage of the farmers are black. This was undenied by 
employer. Exhibit #29 contained facts about the Cyprus 
Creek Watershed and included a list of farmers in the 
Cyprus Creek Watershed area, some of whom testified in 
Elliott’s behalf at this hearing. (Exhibit #29, testimony 
of Joe Bond, Richard Chapman, Mrs. Richard Chapman, 
John Day, Mrs. Martha Merriweather and Glen White). 
Employee identified several other farmers whom he had



A122

visited including Lewis Anthony, Jimmy Bond, Ivory 
Bond, Joe Bond, Wilbur Bond, Murray Buntin, Leroy 
Chapman, Jesse Williamson, Richard Chapman, Amos Free­
man, Sam Greer, Wallace Greer, Charlie Hill, Lewis 
Ingram, William Ingram, Allen King and H. P. Merri- 
weather.

The record shows that in October 1981 Downen in­
formed Shearon that the purpose of the UTIA’s disciplin­
ary policy is to inform employees of their inadequate areas 
of performance and to warn such employees that if im­
provement does not occur the employee would be subject 
to further discipline. Downen further advised Shearon 
that “ since his oral warnings had not been heeded” that 
he should put all further assignments, instructions and 
warnings in written form so that there could be no mis­
understanding or dispute as to whether instructions or 
warnings to improve performance had been given. On 
October 21, 1981, following Downen’s instructions Shearon 
wrote to Elliott as follows:

Re: Failure to complete assignment

Sometime ago, I asked you to visit several of the fam­
ilies in the Cyprus Creek Watershed. You have failed 
to carry out my instructions and I continue to be very 
disappointed with such unsatisfactory job performance. 
(Emphasis added)

Accordingly, please accept this as a formal written 
warning that if your overall performance on all as­
signments does not immediately improve, you may be 
subject to further disciplinary action. (Exhibit #45 ).

While this letter implies that disciplinary action had previ­
ously been taken relative to performance, I cannot so 
find from a preponderance of the evidence.



A123

On October 22, 1981, Elliott responded to Shearon’s let­
ter as follows:

In reference to your complaint dated October 21, 1981, 
in reference to Cyprus Creek Watershed project I 
would like to inform you that there has been a con­
siderable amount of work done in the Cyprus Creek 
Watershed project, I have met with families and in­
formed them of the availability of funds. Up until 
recently, there have not been any projects approved in 
this watershed area.

If you would like to visit some of these people that 
live within this district, I would be happy to let you 
talk with some of them. Until this effort has been 
done, I feel that your complaint of failing to complete 
work in the Cyprus Creek Watershed project is to­
tally unjustified. (Emphasis added)

A comparison of Elliott’s response to the initial as­
signment as reported in the minutes of the August 11th 
meeting, supra, indicates that there was an obvious mis­
understanding of the assignment. Whether or not the 
misunderstanding was justified or deliberate I cannot say, 
based on available evidence. However, in any event, this 
would appear to have been an appropriate time to clarify 
the assignment specifically. Shearon testified that he un­
derstood the UTIA AES disciplinary system. Keeping in 
mind that this system provides for the “ correction of 
problems” it would appear to this hearing examiner that 
under the circumstances the extension leader would have 
placed a high priority on the need for visiting some of 
the farmers in the Cyprus Creek Watershed area with 
Elliott as he requested. This would have given him an 
opportunity to specifically explain further to Elliott what 
he felt was needed and follow this up with specific written 
instructions. However, Shearon testified that he did not



A124

visit any farms in that watershed area at that request. 
Shearon did reply to Elliott’s October 22, 1981 letter (Ex­
hibit #48 ), as follows:

In reply to your letter of October 22, 1981 regarding 
your work in Cyprus Creek Watershed. As you 
know, my assignment was that you visit all farmers of 
the watershed area on a systematic basis, completing 
information regarding their farming program. This 
was to he followed with “ farm plans”  for some of them.

You have not provided me with any information re­
garding the situation of farmers in Cyprus Creek. 
Neither have you presented me with a farm plan that 
you have worked out with the farmers in the water­
shed.

Informing families of funds, or the status of any other 
project had nothing to do with the assignment you 
were given. (Emphasis added). (See also Exhibit 
#28, supra, re. assignment)

On October 27, 1981 Elliott respond to Shearon’s letter 
(Exhibit #50 ), as follows:

In response to your letter dated October 26, 1981 there 
is a correction I wish to make which related to your 
request that I visit all farmers in the Cyprus Creek 
Watershed. In your last letter dated October 21, 1981 
you said you asked me to visit several. You did not 
ask me to visit all farmers in the Cyprus Creek Water­
shed area, if so, I would like to see that letter. It 
might have slipped my memory, however, if you 
would like for me to visit all farmers in this water­
shed area, I will make a diligent effort to fulfill your 
request. I have visited several farmers in the Cyprus 
Creek Watershed area.



A125

I have not documented all visits as Cyprus Creek hut, 
have documented them as Huntersville and Denmark. 
I have dates of this and again if you like to talk to 
persons in this area about my involvement with them, 
I will he extremely happy to take you, or set up a 
meeting to get them to come to you. The last time I 
tried to take you out to a black farm, we had to go 
by and check flowers, and another demonstration on 
the Smith farm and by the time we arrived at Mr. 
Hill’s farm, he was gone. I was also informing you of 
some progress Mr. Wallace Ivy had made and you 
replied, you have helped him too much haven’t you.

I am confused about what I am supposed to do in 
that one day you say visit several and a few days 
later according to your letter, you say visit all. I have 
visited several but now I will visit all.

Last year we were constantly reminded that our mile­
age was about to run out and if our mileage ran out 
we would be off duty or something to this effect 
and the major part of our mileage should be reserved 
for the crop season.

I feel also, that since the Cyprus Creek. Watershed 
project was turned down for the second time and 
extension does not have a direct responsibility in this 
area, please let me know how I am supposed to work 
with these people. I have reviewed their farm plans 
and have this documented. (Emphasis added)

It appears that during this period of time from early 
September up to the time of this hearing that Mr. Shearon 
and Mr. Elliott spent a great deal of their time writing 
letters back and forth without very much effort on the 
part of either to actually communicate. Much of the 
dialogue not herein included which I would consider as



A126

“nit-picking” and reflected a lack of professionalism on 
the part of both Shearon and Elliott. It appears at this 
point that both Shearon and Elliott had lost sight of their 
professional mission.

All this notwithstanding, the burden of proving that 
employee failed to carry out his assignment relative to 
the Cyprus Creek Watershed and/or that he was insub­
ordinate relative to that assignment was on employer. 
I find there was a lack of clarity in instructions. I cannot 
determine whether or not Elliott actually understood those 
instructions. However, the weight of the evidence indi­
cates that he did not and employer through Shearon or 
his supervisors failed to specifically respond when he 
so indicated. Furthermore, during this period Elliott’s 
MBO rating was 3.0 or above which unquestionably re­
flects that officially his performance good or bad, was 
officially sanctioned as satisfactory. Therefore, by a pre­
ponderance of the evidence, I cannot sustain the charge.

In further support of its charge of violation of work 
rule #25 in that employee failed to appear at a calf sale 
on October 8, 1981 employer introduced as Exhibit #51 
a letter from Shearon to Elliott dated October 27, 1981 
as follows:

On Thursday, October 8, 1981 at 9:45 a.m. Mr. Petti­
grew told me that you had called Mrs. Lue Allie 
Jones and asked her to inform us that you did not 
feel like working at the calf sale, since you spent the 
night in Memphis sitting up with a sick friend. I as­
sumed you were taking sick leave.

Since that time I have learned that you were at the 
office in two different trucks. I also noted that you 
went to Pinson and Denmanr according to your F-12. 
The sign-out sheet says you left the office at 9:15



A127

with destination (W.H.-Spray Equipment W /Fox) I 
assume this means you went to Woodland Hills Coun­
try Club to do something about spray equipment with 
Mr. Fox. Expected return time was 12:00. At 1:30 
p.m. you signed out to go to (Denmark-Sylvester) with 
return time 3:30 and at 3:30 p.m. you signed out 
(downtown-Haywood) with return time 5:00 p.m. Mr. 
Elliott if you did not feel like coming to the calf sale 
then, you should have called the livestock center and 
called to clear it with me.

Please explain to me how you were able to drive the 
different trucks without leaving the county.

I consider your performance on this day to he inade­
quate since you did not come to the calf sale when 
clearly you were able to do so. (Emphasis added).

It was established that the sale referred to was in Hay­
wood County, Mr. Pettigrew being extension leader in 
that county. Shearon testified that he wrote Elliott about 
the feeder calf sale on October 8 because Madison County 
farmers market calves through the area feeder calf sale 
which is the “Brownsville Feeders Association” , located 
near Brownsville, Tennessee and that “we assist with that 
sale” , commenting that we, meaning the extension agents 
of the surrounding counties from Haywood and surround­
ing counties. We assist he said “because that is our, part 
of our responsibility as agents in working with farmers 
through the beef cattle marketing program.” Testimony 
from Shearon, Butler and Elliott agreed that while agri­
cultural agents from the surrounding counties generally 
assisted in both feeder calf and feeder pig sales, that all 
agents did not always attend each sale for various reasons, 
and though agents were expected to be there, attendance 
was voluntary and not mandatory. Shearon testified that



A128

upon receiving word that Elliott had called indicating he 
did not feel like working at the sale that day, that he 
assumed Elliott was taking sick leave, but later found 
out that he did not take sick leave and did work in Madi­
son County on that date as indicated in his October 27, 
1981 letter to Elliott. Shearon further testified that he 
wrote to Elliott on that date “because after learning that 
he had not worked and there was evidence that he had 
possibly done some personal work that day, I reminded 
him that this was not proper and appropriate in carrying 
out of instructions” . Elliott admitted on direct and cross- 
examination that he did work in Madison County on Octo­
ber 8 as indicated on the office sign-out sheet referred to 
in Shearon’s letter, including working with Mr. Fox at 
Woodland Hills Country Club most of that morning on 
some spray equipment for the golf greens. Elliott how­
ever denied that he did any personal work during work­
ing hours on that date.

Based on the testimony of Shearon, Butler and Elliott 
I cannot find the failure of Elliott to attend the calf sale 
on October 8, 1981 to be in violation of University work 
rule #25. I could find however, that working on spray 
equipment at the Woodland Hills Country Club violated 
Shearon’s direct order, supra, not to answer any further 
calls for assistance at any of the golf courses did amount 
to insubordination. However, Elliott claimed and it was 
undenied that he had in fact made visits to that specific 
golf course at Shearon’s suggestion after Shearon had 
“relieved him of any further responsibilities relating to 
golf courses” . Furthermore, Shearon’s letter of October 
27 to Elliott specifically relating to Elliott’s assistance to 
Mr. Fox on that morning, does not mention the impropriety 
of this visit in relation to his previous instructions or dis­
cussions relating to helping and visiting golfing establish­
ments.



A129

According to Black, supra, insubordination may be de­
fined as disobedience to constituted authority; refusal to 
obey some order which a superior officer is entitled to give 
and have obeyed and the term imports a willful or in­
tentional disregard of the lawful and reasonable instruc­
tions of employer. Failure to follow “ direct and specific” 
instructions of an extension leader by an agent under his 
supervision would clearly amount to insubordination.

It appears from the evidence, including the testimony 
of Shearon, Turner, Elliott and others that Elliott has had 
and continued to have a tendency to “ do his own thing” , 
that is, go about his work doing the things that he likes 
to do and things that he sees as important. This is not 
to say that an extension agent should not answer calls from 
citizens for assistance in areas in which he is competent, 
but that primary responsibilities should take first priority. 
The evidence presented throughout this hearing, however, 
tends to support the argument that this has largely been 
overlooked and condoned for years and although he may 
have frequently been “called to task” in a “suggestive” 
manner, strong supervision with specific instructions to 
improve what appeared to be an apparent problem was 
lacking. Furthermore, where the assignment was clear 
and yet not completed his official MBO ratings reflected 
approval of his work, at least up through June 30, 1981. 
With this past history in mind and considering attendance 
at every calf sale was not mandatory for agents from 
the surrounding counties, I conclude that the evidence is 
insufficient to support a charge of violation of work rule 
#25 or a charge of inadequate performance on October 8, 
1981.

Employee was also charged with violation of work 
rule #25, insubordination and/or inadequate work per­
formance in that employee consistently refused to. carry



A130

out his supervisors instructions to complete feeder pig 
producer surveys. Employer introduced as Exhibit #52 
a letter from Shearon to Elliott dated November 12, 1981 
as follows:

Dr. Turner returned the survey forms and suggested 
that you continue visiting and surveying small farm­
ers throughout the county. Mr. Luck provided you 
with forms to do this with. Please make out a sched­
ule that will enable you to complete about four to 
six surveys per day.

Recertification of feeder pig producers needs to be 
completed between now and January 1, 1982. Please 
make these producers a part of your survey group. 
(Handwritten note on exhibit - “visit sales from time 
to time: Huntingdon, Lexington”

I would suggest that you locate feeder pig producers 
and other small farmers on a county map and work 
it community by community so as to make the best 
use of your time and travel allowance.

I am expecting you to get started on this now. Please 
report the progress you have made each week.

If you have any questions concerning this assignment, 
let me know. (Emphasis added)

Exhibit #52 was introduced by employer, is an offi­
cial part of this record, and while not introduced to sup­
port a finding relative to the October 8, 1981 calf sale 
charge, supra, it is worthy noting that the handwritten 
note on the exhibit “ visit sales from time to time” in 
reference to feeder pig sales, feeder pigs being one of 
Elliott’s specific assignments, does tend to support em­
ployee’s claim that attendance at feeder sales was not 
mandatory.



A131

Following the introduction of Exhibit #52 Shearon 
was asked a series of questions as follows:

(Q) What instruction did you give Mr, Elliott in this 
memorandum to him dated November 12, 1981?

(A) In this memorandum, I am returning some sur­
vey forms that Mr. Elliott had turned in to me 
following an earlier conference,

(Q) He gave you some survey forms?

(A) There were some survey forms that Mr. Elliott 
said that he had found in his briefcase, that had 
been done back in 1979; and he gave them to 
me on October 27th.

(Q) Did you check them out?

(A) I turned them over, I gave them to Dr. Turner 
because they were part of the survey that was 
supposed to have been done from January to 
to June of 1979, of which until that time I had 
not received any survey forms.

(Q) What did Dr. Turner do with them?

(A) Dr. Turner returned them to me and told me 
that in the essence of their needing updating, 
and the fact the original report had been pre­
pared, and that was already completed, asked 
me to give them back to Mr. Elliott, and to use 
them along with the other surveys that we were 
asking him to do at that time.

(Q) What else were you instructing him about?

(A) I told him, instructed him concerning the re­
certification of feeder pig producers.



A132

(Q) What is that, recertification of feeder pig pro­
ducers?

(A) Feeder pig producers who sell through the 
feeder pig sales must be certified as to the fact 
that they are bonified producers and not traders, 
are not dealers in hogs; and this is done as a 
health program. We cooperate with it though, 
at the request of the state veterinarian and the 
animal science department.

(Q) What did you ask him to do about that?

(A ) I asked Mr. Elliott to visit these feeder pig pro­
ducers and check their operation, make surveys 
on them, since most of these would be small 
farmers; along with his continuing small farm 
survey visits. (Emphasis added)

Herein, I suggested that he continue to visit 
small farmers including pig producers, and com­
plete some of this survey work. I tried to fur­
ther help him by making a suggestion that he 
locate these producers and small farmers on a 
county map, and work it community by commu­
nity so as to make the best use of his time and 
travel allowance. (Emphasis added)

(Q) Well, did he do that?

(A ) He did not turn in any survey forms, week by 
week as instructed. I told him to report his 
progress each week, and hy reporting his prog­
ress, I wanted those survey forms turned in 
to me. He did not. Some weeks later, I think 
you will find a document where he gave some 
oral reports, but no survey forms other than 
the ones mentioned at the top of the page here. 
(Emphasis added)



A133

(Q) What did you want him to do concerning a map?

(A) My suggestion was that in order to facilitate his 
travel, when he left the office, it would have 
been a rather simple matter to have located 
these people on the maps. We have county 
maps that have roads on them, that have ad­
dresses on them, information is available as to 
where farmers live, and had he located these 
small farmers on the map, and used that as he 
traveled, he could have done, I would say four 
to six surveys a day. There is no reason why 
he had started and put in a day’s work, he could 
have done fifteen to twenty surveys per day. 
(Emphasis added)

(Q) You mean by coordinating his visits?

(A ) Yes, by coordinating his visits and spending his 
time in an area doing these surveys. I know. I 
have done it many times.

Shearon further testified that later Elliott came to him 
with some comments regarding the map and regarding 
how he had planned to do it. “We had a discussion con­
cerning the fact as to why I had suggested the map, and 
I told him; and Mr. Elliott became very angry, and 
stormed out of the office; and when he did, ‘I told him 
to go ahead and do it like he wanted to do it’ . . .  a few 
minutes later he came back with a, two maps, and asked 
if they would do. Anyway, I spent some time with him 
in looking at the maps and told him yes, that would be 
fine, he said that he would he could not locate the pro­
ducers before he went, and that uh he wasn’t able to, 
didn’t know them well enough to know where they were. 
I said all right, take it with you as you go, and make a 
numbering on them, as you go, and locate them on the



A134

map, so that when we get through, we will have informa­
tion concerning where these producers live and that will 
get us even more information. He left my office, and put 
the maps on the bulletin board.”

Employee introduced Exhibits #83 through 85 which 
were identified as feeder pig recertification cards for five 
different farmers. The cards were to certify to the Ten­
nessee Department of Agriculture that the producer who 
signed the card was a feeder pig producer in Madison 
County and that he did not deal in swine and that he 
met requirements for Tennessee organized feeder pig sales. 
At the bottom of the card on the left was a blank space 
for signature with “extension leader or feeder pig com­
mittee chairman” typed in and underlined and a line on 
the right underneath which was typed “producer” for 
the producer to sign.

The evidence introduced showed that in the past, re­
certification cards had been signed routinely in the Mad­
ison County Office by either one of the three agricul­
tural agents, Shearon, Butler or Elliott. Elliott further 
testified, and it was undenied that past custom had been 
for form letters to be sent out to all feeder pig producers 
relative to recertification for marketing cards and signed 
by all agricultural agents Curtis Shearon, Robert B. Elliott, 
John D. Butler, (Exhibit #102). A  list of feeder pig 
producers was introduced showing the initials R or J, 
referring to Robert or Johnny as further evidence that 
this responsibility had been previously shared (Exhibit 
#102). It was undisputed that normally the cards were 
typed by an extension office secretary and a recertification 
fee of 15 dollars each was received by the secretary with 
each card signed by one of the extension agents and a 
card issued to each producer.



A135

On November 21, 1981 Shearon wrote a handwritten 
letter to Downen (Exhibit #54 ), subject “re: job per­
formance Mr. Robert B. Elliott” the letter provided as 
follows:

Since the July 24 “field day” and especially since 
the agricultural committee meeting of August 27, 1981, 
Mr. Elliott has had every opportunity to demonstrate 
that he could and would change and perform in an 
expected manner. This performance should have been 
in keeping with duties set forth in his “job descrip­
tion” and according to instructions given by me, Dr. 
Turner and Mr. Luck. This has not been the case.

A  few examples are: On August 7, 1981 I initiated
an office sign-out sheet and requested each agent to 
sign in then put down time-out, destination and ex­
pected return, each time they left the office. Mr. 
Elliott’s use of this sheet has been very meager. In 
most cases there is no way to tell from the destination 
indicated where he could be found, if needed, also 
this sign-out sheet clearly shows that most of his time 
has been spent at activities other than working with 
low-income farmers.

I have made several attempts at getting him to per­
form. These have all been labeled as harassment. 
While on the other hand he has done everything 
possible to harass me and to some extent other agents 
in the office.

He visited with Mr. Luck on one occasion and Mr. 
Luck suggested that he start working with low-income 
farmers and provided him with some survey forms 
for use in collecting data. To date he has not given 
me a completed form. (Emphasis added).



A136

Mr. Elliott filed an informal discrimination complaint 
with Dr. Gene Turner and as a result we met with 
Dr. Turner and discussed it on October 28, 1981. 
During the course of the discussion Mr. Elliott told 
Dr. Turner that he had found 20 completed “ small 
farm surveys” that he had done in 1978 or ’79, later 
in the day he gave me 15 survey forms, 13 of which 
were partially completed and 2 with only a name 
on them. I showed these to Dr. Turner and he sug­
gested that I return them to Mr. Elliott with a 
suggestion that he complete them or bring them up-to- 
date and to proceed to do other surveys and other 
work with low-income farmers.

I returned them to him on November 13, 1981, along 
with a letter from Dr. John R. Ragan, State Veterinar­
ian concerning “recertification of feeder pig producers 
for marking cards” .

I had a long talk with him and told him how I expected 
him to start this task immediately. He had not pro­
vided me with the schedule nor had he shown me a 
map with the feeder producers located. If he had 
followed my instructions, he would have given me 
a report and turned in 20 - 30 completed surveys on 
Friday afternoon. I did not get the report. Mr. El­
liott has not adequately responded to my assignments 
given.

This letter was dated nine days after Shearon’s October 12,
1981 letter, supra. On November 23, 1981 Elliott wrote to
Shearon as follows:

In reference to your letter dated 12 November, 1981 
concerning the visits to the feeder producers and sur­
veys:



A137

I received the survey form from Mr. Luck. I am get­
ting a survey from each person I visit. I started visit­
ing all feeder pig producers on the 16th of November, 
1981. Since November 16, I have also had calls 
which dealt with grubs in fairway at Woodland Hills. 
I carried Dr. Russ Patrick to Woodland Hills to check 
the damage at the request of Mr. Fox, the manager 
of Woodland Hills. My recommendation was to use 
80% sevin and to use two applications in the area af­
fected. Hopefully, the weather would get cooler and 
the grubs would go deeper in the soil. I also visited 
Mr. Jerry Smith on Moorewood Drive to give advice on 
creeping red fescue and Kentucky 31 fescue. My find­
ings were: the grass was sown too shallow and the
root system was not deep enough to sustain the plants. 
The grass was dying and in places where the grass 
was not dying it had a deeper root system. I checked 
pigs at Mr. Charlie Hill’s farm and also obtained a low- 
income survey from him.

The 19th of November I visited Mr. Askew, Mr. Good­
win, Mr. Boone, Mr. Hicks, Mr. Johnson about their 
feeder pig program. Mr. Henry Yarbrough was visited 
in reference to use of commercial weed control on 
lawns. He had a professional lawn cutting system. 
Mr. Willie Boone indicated that he needed me to help 
him locate a boar for his herd. I will make this con­
tact this week.

Mr. Hamilton and son was visited and his main concern 
was the number 3 grade pigs he has been receiving. 
I hope to keep a close check to try to detect what 
is causing the pigs to grade no. 3 instead of no. 2.

Monday, November 23 I visited Mr. Douglas Chandler, 
Mr. William Neely, Mr. Horace Reed, Mr. Ramond 
Allen, Mr. Issac Neely, Mr. Calvin Day and Mr.



A138

Leroy Neely. Mr. Reed wants me to help him with 
a building. I suggested the Moton building. I plan 
to have a feeding demonstration with Mr. Issac Neely. 
His pigs were infested with lice and needed worming. 
I plan to get him out of the no. 4 grade to no. 3 and 
better. Also, Mr, Chandler can use a lot of help in 
improving the quality of pigs he is selling.

I had planned to go to Huntingdon to help with the 
feeder sale, but decided that since our producers will 
all be recertified by January 1, I will wait to see 
who we will have at this time.

I am using a system of marking the list with producers 
of the same community with the same number so that 
when I go to a certain part of the county, I will check 
with the one and next day might be the fives, etc.

If you need more information on my system, please let 
me know. (Emphasis added)

On November 24, 1981 Elliott sent a letter to feeder 
pig producers of Madison County, “ subject: recertification 
for marking cards” (Exhibit #56 ). The letter was almost 
identical in information to letters which had customarily 
been sent to feeder pig producers about this time of year 
(Exhibit #102). The letter informed the feeder pig 
producers that certification for 1982 and a valid 1982 feeder 
pig marketing card would be required for any producer 
to sell pigs in an organized feeder pig sale on and after 
January 1, 1982. The letter further provided as follows:

We have set aside December 15, 16, 17, and 18, 1981 
as the dates to issue new certification to Madison 
County producers. If you want to sell pigs at Browns­
ville, Huntingdon, Lexington, then you should come to 
the county extension office on one of these dates, or 
before you go to a sale, as your old certificate will



A139

not be honored. Also, be prepared to pay your live­
stock association dues. They are $15. Office will be 
closed for Christmas December 4 until January 4, 
1982.

In addition to providing additional information to pro­
ducers relative to standards, requirements of the State, etc. 
Elliott stated in the letter:

We hope to visit all producers sometime during the 
year, but, if you have problems and would like some 
help, please call us at 668-8543. We are located at 
309 North Parkway, just off 45 Bypass.

Our winter meetings will be starting in January and 
we hope you will attend the ones that interest you. 
Enclosed is a program schedule for the meetings.

In reviewing the evidence of record the first reference to 
swine as a part of Elliott’s assignment was in the April 
28, 1980 minutes of the Madison County Extension Office 
conference (Exhibit #27)  as follows:

Mr. Shearon assigned the agricultural part of the plans- 
swine section, Mr. Elliott . . . (Handwritten note 
on exhibit - “ I finally had to complete this” )

The discussion at this conference related to the annual 
report, plan of work and plan of work projection for the 
Madison County Office. It was later charged in this hear­
ing as an example of failure to complete other assign­
ments, that Elliott never completed this assignment and 
Shearon testified that he “ finally had to complete it” . El­
liott denied that he failed to complete this assignment. 
The only earlier reference I find relating to swine was 
the March 10, 1980 minutes of the Madison County Exten­
sion Office conference (Exhibit #26)  which related that 
Shearon had discussed a swine computer printout for



AMO

Madison County with Elliott and, asked him “to begin 
studying the printout and possibly be prepared to write 
the part of the plan related to swine” . The actual assign­
ment was made on April 28, 1980 (Exhibit #27, supra). 
Whether or not Elliott completed this swine portion of 
the plan, I cannot determine from the evidence. Employer’s 
offer of proof thus was not sufficient to meet its burden 
of proving this charge. Furthermore, the assignment was 
made in April 1980 and the charge for failure to complete 
this assignment came well over a year later, long after 
the plan was due and apparently completed. No evi­
dence was introduced to show that this was ever called 
to Elliott’s attention, or that he otherwise was reprimanded 
during this period. Furthermore, Elliott received an official 
rating of average or above in all categories and an overall 
rating of 3.0 for that year. Therefore, the charge of failure 
to complete the swine portion of the Madison County plan 
of work cannot be sustained.

Further search of the record produces no substantial 
and material evidence to show that Elliott’s assignment 
relative to feeder pig producers required him to take 
the recertification cards to the producers, see that each 
producer was recertified “on the farm” and collect the 
15 dollar fee. I cannot presume to know what oral dis­
cussions took place between Shearon and Elliott relative 
to this matter. However, based on the evidence of record, 
I can only conclude that a person of reasonable mind who 
was familiar with the recertification process which had 
been followed in Madison County for the last several 
years would not interpret Searon’s instructions that it be 
done any differently in 1981, other than this year it was 
to be done by one agent rather than all. The instructions 
were clear in that Elliott was to “please make these pro­
ducers part of your survey group” , that Shearon suggested



A141

that he locate feeder pig producers and other small farm­
ers on a county map and work it community by community 
so as to make the best use of his time and travel allowance. 
I cannot conclude from that letter that recertification for 
the 1982 marketing year was to be completed “on the 
farm” or that it instructed Elliott clearly to visit all feeder 
pig producers by the end of December 1981. I do not 
question the intent of Shearon, but the letter must be 
interpreted within its four corners for the purposes of 
this hearing.

Elliott reported his activities to Shearon by letter 
supra, eleven days after the assignment was made on 
November 12th by Shearon. There is no indication on 
Shearon’s November 12th letter that Downen, Luck or 
Turner was copied or that they were otherwise apprised 
or aware of the feeder pig assignment as related in that 
letter.

In Shearon’s handwritten letter to Downen dated No­
vember 21, 1981, supra, Shearon referred to the feeder pig 
recertification and related that he had a long talk with 
Elliott and told him how “ I expected him to start this 
task immediately” . Shearon further related to Downen 
that Elliott “has not provided me with the schedule nor 
has he shown me a map with the feeder pig producers 
located. If he had followed my instructions, he would 
have given me a report and turned in twenty to thirty 
completed surveys on Friday afternoon. I did not get 
the report. Mr. Elliott has not adequately responded to 
assignments given.” Recalling from Shearon’s testimony, 
supra, he indicated that he and Elliott had some discussion 
about the use of maps, that, Elliott became angry and 
he told him to go ahead and do it like he wanted to. 
Shearon further testified that with proper coordination 
one could easily do fifteen to twenty surveys per day.



A142

It was unclear whether or not this was in reference to 
recertification or to collect additional information for fur­
ther use relative to the small farm group. Although the 
recertification issue was disposed of supra, by way of 
dicta I question the wisdom of abruptly changing the re­
certification procedure for Madison County producers at 
this particular time. I can, based on my own experience 
working as an extension specialist surmise how farmers 
who had been accustomed to following a set procedure 
would respond to this change under the circumstances. 
Also, the administrative wisdom in handling the recerti­
fication process in this manner which would involve the 
collection of the 15 dollar fee appears to be less than 
desirable. Furthermore, if the purpose of the surveys 
was to get additional “useful” information I seriously 
question the value of data collected visiting fifteen to 
twenty farmers in one day at various locations, even 
though they might be for the most part located in the 
same community. Four to six, however, appears reason­
able.

As indicated, supra, Elliott reported his progress rel­
ative to the feeder pig producers and surveys to Shearon 
by letter November 23, 1981 with copies to District Super­
visor Luck and others. Again, on November 30, 1981 by 
letter he reported his activities for the week of Novem­
ber 23 through November 27, 1981 to Shearon (Exhibit 
#59b). The letter began with “I visited feeder pig pro­
ducers in an effort to visit all producers in the county” , 
followed by a report of his activities for that week. 
Shearon testified that he was glad to get Elliott’s report 
but that he was “disappointed” and that still there were 
no surveys indicating the benchmark data or indicating 
that “what else was concerned on these farms with regard 
to the farmers, except the fact that he said he made the



A143

visits, but he does say in this letter that he has gotten 
the survey forms, and I was glad to note that he promises 
here, to start doing surveys on all the farms that he 
visits” . The reference here was to Elliott’s November 23rd 
letter.

Shearon further testified that Elliott’s recertification 
letter (Exhibit # 56 ), supra, violated his instructions to 
“visit the feeder pig producers” . Again, while Shearon 
may have intended his instructions to specifically require 
on the farm certification, I cannot so conclude from his 
instructions (Exhibit 52, supra).

Shearon also testified that he received Elliott’s No­
vember 30, 1981 letter on December 9, 1981 and that the 
first survey form that he received from Elliott was en­
closed with the letter. The record is unclear whether 
the survey forms referred to related to feeder pig pro­
ducers, farmers in the Cyprus Creek Watershed, or an 
all-inclusive category of small farms. In Shearon’s letter 
to Downen, supra, dated November 21, 1981 he indicated 
that Elliott had visited with Mr. Luck on one occasion, 
that Mr. Luck had suggested that he start working with 
low-income farmers and provided him with some survey 
forms for collecting data. Shearon further indicated that 
as of that date he had not received a completed form 
from Elliott. Following that statement in that letter, 
however, he further related that durng Elliott’s visit with 
Dr. Turner on October 28, 1981 relative to a discrimination 
complaint that Elliott turned in some fifteen “small farm 
surveys” that he had found in his briefcase which had 
been done in ’78 or ’79 and that later in the day Elliott 
gave him fifteen survey forms. Shearon testified that 
they were not complete and that Dr. Turner suggested 
that he return them to Elliott with the “suggestion” that 
he complete them and bring them up-to-date and proceed



A144

with other surveys. Shearon testified that he was again 
glad to get Elliott’s November 30, 1981 report which “told 
of work that he was doing and visits he was making 
concerning various things” . Shearon said, however, “ this 
was not reports in the form that I had asked him to give 
except for the one survey form ‘which was included with 
the letter’ and the only one I received until sometime 
in mid January” . There was no evidence offered to 
show that Shearon officially responded to Elliott’s letters 
either with further instructions, reprimand or in any 
manner.

Shearon’s letter to Elliott dated December 9, 1981, 
Exhibit 59a, referred to in part, supra, reads in full as 
follows:

I am writing in regard to your November 24, 1981 letter 
to feeder pig producers concerning recertification. As 
you recall, I wrote you on November 12, 1981 giving 
you a specific assignment on surveying small farmers 
throughout Madison County. As part of this assign­
ment I specifically asked you to make the recertifica­
tion of feeder pig producers as part of your survey 
group.

I am disappointed that you responded to my assignment 
by sending a form letter to all producers requiring 
them to come by the office for the recertification visit. 
I specifically wanted you to go and visit these pro­
ducers. As you know, this was part of the assignment 
that I gave you along with visiting small farmers, 
which was the only assignment that I gave you to do 
until the end of the year. You should have checked 
with me prior to sending your letter to feeder pig pro­
ducers. It is now too late to rescind this letter because 
probably not enough days remain in the year, due to 
the holidays, to visit all of these pig producers. In



AMS

my judgement your decision to use this method of 
recertification was directly in violation of my specific 
instructions to you and amounts to inadequate per­
formance of this assignment. Had you carried out my 
instructions you could have completed recertification 
visits and surveys of all feeder pig producers as well 
as many other small farmer surveys before the year’s 
end.

Immediately upon receipt of this letter I am instruct­
ing you to bring to me all completed survey forms from 
feeder pig producers and other small farms.

Mr. Elliott, you also know that I am not piling the 
assignments on you. I have given you one assignment 
to complete in six weeks. It is your job to carry out 
this assignment in a satisfactory manner, in accordance 
with my instructions. By copy of this letter I am advis­
ing Dr. M. Lloyd Downen, Dean of the Agricultural 
Extension Service, that I consider your overall job 
performance to be inadequate for this calendar year. 
(Emphasis added)

I cannot presume to know from the evidence what 
Shearon conveyed to Elliott orally, or whether or not El­
liott understood the assignments to be specific as Shearon 
testified they were and which Elliott denied. I can con­
clude from the foregoing letters back and forth from 
Shearon to Elliott and Elliott to Shearon and testimony 
relating thereto that Shearon’s instructions to Elliott in 
my mind, were not as clear as they could have been and 
should have been under the circumstances. Elliott’s re­
sponses indicated that he was alleging at least that he 
was trying in his best efforts to make a proper response 
to the instructions given to him by Shearon although it is 
clear that he had not completed four to six surveys per 
day.



A146

I cannot presume to know what conversations took 
place between Shearon and Elliott. I do feel however, 
there should have been some documentary response. In 
fact, UTIA disciplinary policy, Exhibit #127, supra, dic­
tates that where employee is being charged with improper 
behavior or inadequate performance that “ the supervisor 
shall first notify the employee orally . . . the employee, 
should be told what corrective actions are necessary and 
when the corrective actions are expected” , followed by 
documentation in the employee’s personnel file. It is fur­
ther provided that:

If the unsatisfactory performance or unacceptable 
behavior does not improve, the supervisor should issue 
a written warning to the employee. This written warn­
ing should detail the inadequate or unacceptable per­
formance, state the corrective actions required and the 
time period in which corrective actions must occur, 
and state the action(s) to be taken if corrective ac­
tions are not accomplished. (Emphasis added)

It is clear from the records throughout this hearing that 
Elliott failed to complete a substantial number of surveys 
whether related to the small farmers as a group, Cyprus 
Creek Watershed farmers, or feeder pig producers. It is 
not clear, however, that the assignments relating thereto 
were clearly outlined and specific, nor was there any 
response of record either by Shearon, Turner or Luck to 
Elliott’s activity reports relating to his efforts to follow 
Shearon’s instructions as outlined in his November 12, 
1981 letter relative to feeder pigs, supra. It appears 
that propriety would have logically dictated a supervisory 
decision at the district or state level or at least for Turner, 
Shearon and Elliott to come together to discuss the situa­
tion existing in Madison County Office, and for Shearon 
and Turner to outline specific assignments that were clear



A147

which would defy misunderstanding. The evidence is 
inconclusive as to specifically what efforts were made on 
the part of Shearon and Turner to correct the alleged prob­
lems or to what extension Elliott cooperated with them 
in an effort to understand what was expected of him. 
However, if I could conclude from the evidence, which I 
cannot that the instructions were specifically clear I could 
not find that employer followed its own prescribed dis­
ciplinary procedure. I therefore conclude that the charge 
of insubordination and/or failure of employee to perform 
his assignments relative to feeder pigs is not sustained.

On December 9, 1981 Elliott responded (Exhibit #60)  
to Shearon’s letter of December 9, 1981 as follows:

I am writing to you in regard to your November 24, 
1981 letter, in which you say you consider my overall 
job performance to be inadequate for this calendar 
year. (NOTE: It was determined that the reference
to November 24, 1981 was a mistake and Elliott’s re­
sponse was in fact to Shearon’s December 9, 1981 
letter)

Mr. Shearon, will you please cite dates, times and also 
specific assignments that I have failed to perform ade­
quately in the past five years, or since you have been 
on the staff in Madison County. I would like this in 
writing so that I can look at areas that I am deficient 
in and try to correct any deficiency that 1 may have.

Mr. Shearon, I want to work in complete harmony with 
you so as to give the taxpayers in Madison County 
maximum output from this department. I extend the 
hand of cooperation and I hope you will accept this 
gesture so that both of us can be effective in serving 
the needs of the people of this county.



A148

Mr. Shearon, I do not feel that I have had proper as­
sistance from you since our meeting where the commit­
tee voted to dismiss me. You are aware that I have 
worked for eighteen years, including military, and 
my job performance has always been above average 
until you came. However, nothing was ever said about 
my job performance until the two incidents last sum­
mer which were loaded with racial overtones. Do you 
not condemn the referral of my race of people as 
“niggers” in public, and for my race of people to be 
referred to as “black thieves” ?

Please, Mr. Shearon, I will cooperate any way that I 
can if you will cite specifics. (Emphasis added).

Shearon testified that he was glad to get Elliott’s De­
cember 9 letter and “to see the change in tone with regard 
to Mr. Elliott’s condition toward me” , but that he could 
not accept the fact in any way that he had treated Elliott 
unfairly by not giving him proper assistance in that “I 
had certainly given him specific dates and assignments 
and times and things to do, that were not only orally done 
over a period of five years, but also in more recent months, 
had been put in writing, and still Mr. Elliott writes and 
says that he cannot understand and that he is willing and 
ready to go and do these things, it strikes of the fact 
that Mr. Elliott is still not performing and that he is in­
dicating something that I failed to believe is true, that he 
does not have the ability to understand instructions and 
to carry them out. It seems to me that Mr. Elliott is say­
ing that he does not intend to follow my instructions.”

It appears that at that point the relationship between 
Shearon and Elliott had deteriorated to such an extent 
that communications between them was very difficult if 
not impossible; all the more reason as stated, supra, that 
propriety calls for supervisory assistance from a higher



A149

level under such circumstances. Again, I cannot presume 
to know or understand what took place, outside the 
parameters of the official record of this hearing within 
which I must confine my findings and conclusions. I can 
conclude however, from the record that there was an 
obvious lack of communications between employee and his 
supervisors and between supervisors as well. This will be 
addressed further, infra.

The findings and conclusions relating to the specific 
charges dealt with, supra, notwithstanding, the overrid­
ing question of whether or not the UTAES followed its 
own officially sanctioned disciplinary procedure relating 
to charges of insubordination and unsatisfactory per­
formance against Elliott and whether or not it is bound 
by its own performance evaluation system must be con­
sidered and related thereto.

According to University of Tennessee Personnel Policy 
and Procedures, Sec. 160 Po2, supra, “ terminations will 
strictly adhere to University policies and procedures” . 
Therefore, as indicated, an overriding issue which relates 
to the entire hearing proceedings, is whether or not em­
ployer followed its own policy and procedures in its disci­
plinary actions against Robert B. Elliott. It is understood 
by this hearing examiner that it is the responsibility of 
the AES under the direction of its dean, to determine 
what performance and behavior is adequate or proper for 
an agricultural extension agent, “within established stan­
dards” . Furthermore, it is not my responsibility herein 
as administrative law judge and hearing examiner to 
substitute my opinion for that of Elliott’s supervisors as 
to what standards of performance or behavior are accept­
able for a county extension agent. It is, however, my re­
sponsibility to determine from a preponderance of evi­
dence whether a clearly established system of discipline



A150

and evaluation system was followed. Moreover, it is my 
responsibility to make a determination as to whether or 
not the various assignments were sufficiently clear that 
a person of “ reasonable mind” would understand them, and 
then whether or not there was a failure to perform those 
assignments.

On February 13, 1980 Shearon evaluated Elliott’s 
performance for 1979 and testified that he met with El­
liott orally to explain Elliott’s deficiencies and made notes 
on their discussion (Exhibits #23, 24, supra). Elliott 
repeatedly denied having the opportunity of discussing 
his recommended ratings with Shearon. The rating 
Shearon recommended to his supervisors for Elliott for 
that year was an overall 3.1. The final official rating for 
the year July 1, 1979 through June 30, 1980, signed by 
District Supervisor Luck was 3.0 overall. Shearon’s hand­
written notes on the conference indicated Shearon had 
discussed with Elliott his performance, including his 
strengths and areas which needed improvement. A lack 
of planning and documenting his work and reporting on 
his work were emphasized. Again, Elliott claimed that 
Shearon’s ratings and his notes were forgeries created 
after-the-fact to incriminate him. I find no evidence to 
support that assertion. Employer on the other hand claims 
that Shearon gave an oral warning to Elliott on February 
13, 1980 . . . if such a warning in fact occurred, it was 
not documented in Elliott’s personnel file. Employer 
claimed that there is no mandatory requirement that oral 
warnings be documented, that the policy states that such 
warning “should” be documented in the employee’s per­
sonnel file, and that in the light of all the circumstances 
surrounding the evaluation conference of that date the 
requirements of the first step of progressive discipline 
were completed. That claim is not well founded for sev­



A151

eral reasons. First, “ an oral warning that performance 
must improve” conflicts with Shearon’s own recom­
mended rating of 3.1 and Elliott’s final official rating for 
that year of 3.0 by Luck. Secondly, the purpose of the 
management by objective (MBO) rating system is to 
provide a supervisor-supervisee conference to discuss the 
strengths and weaknesses of employee’s performance with 
the objective of discussing ways of improvement where 
needed as reflected in the rating. A rating of 3.1 recom­
mended by Shearon and an overall official rating of 3.0 by 
Luck, which is satisfactory, supports the idea that this is 
precisely the type of conference provided for by the MBO 
system. Thirdly, if an oral warning is given to an em­
ployee, the progressive discipline system requires that 
employee not only be notified of improper behavior or in­
adequate work performance, but “employee should be 
told what corrective actions are necessary and when the 
corrective actions are expected. Furthermore, “ the date 
and nature of the oral warning should be documented 
in the employee’s personnel file” . Although personnel 
policy states oral warnings “should be documented” and 
it might be interpreted as not required under said policy, 
it seems very clear that the very purpose of documented 
oral warnings are to insure that such warnings are in fact 
given and employees put on notice that improvement must 
be forthcoming or be subject to further disciplinary ac­
tion. The purpose of “progressive discipline” is to through 
a series of progressive steps give an employee every op­
portunity to correct any job-related problem. The evi­
dence does not support such a finding that the UTIA pro­
gressive discipline policy was followed with Elliott rela­
tive to his job performance.

I agree that the evidence presented at this hearing 
supports the idea that Elliott has done a lot of good work



A152

in Madison County as testified to by his supervisors and 
further supported by his own numerous witnesses. How­
ever, I further agree he did not complete some assign­
ments which were clear and that the evidence, including 
testimony of his own witnesses tends to support the idea 
that he had a tendency to focus his efforts, and especially 
in recent years on various subjects away from his primary 
assignment of working with small farm families. More­
over, a preponderance of all the evidence leads me to 
believe that Shearon did in fact, as Elliott’s immediate 
supervisor, in good faith attempt to motivate and assist 
Elliott in improving his performance up through the fiscal 
year ending June 30, 1981. After that time, however, 
there was an apparent breakdown of communications be­
tween the two. I further believe that Shearon, as he 
testified was “frustrated and disappointed” in his efforts 
both by Elliott’s lack of response and in not being able 
to effectively communicate to his supervisors that prob­
lems were developing which required their assistance. 
There was an obvious lack of communications between 
Shearon and his supervisors as reflected in Shearon’s 
ratings of Elliott and in Elliott’s official ratings during 
those years (Exhibits #18, 19, 20 and col. Exhibit 64, 
supra). This was further reflected in Shearon’s letter 
to Luck dated September 26, 1981 (Exhibit #43, supra) 
“re: Robert Elliott:, as follows:

I have not waited until now to complain about Elliott’s 
job performance.

I went to Mr. Short in the summer of 1976, and we 
caught him playing golf during working hours and 
he was not on leave.

I have from time to time, and sometimes I thought 
I was doing it too often (discuss with you and Dr.



A153

Turner numerous problems regarding his work or 
should I say failure to work). As I told Mr. Boone 
on August 27, 1981, it is my feeling that these prob­
lems should be resolved through the chain of com­
mand, that is through supervisors rather than the 
committee.

Some of these things I think you and/or Dr. Turner 
will recall my discussing are:

1. Poor job performance

2. A habit of skipping in-service training

3. Lack of planning

4. Poor reporting habits (TEMIS and others)

5. His hurting office morale, especially 4-H and Home 
Ec. agents getting by with so little work,

a. No planned programs
b. No night or weekend work
c. Not being in the county when they were re­

quired to live here
d. Rumors of his doing cabinet work while on 

UT duty

6. His failure to do the small farm surveys

7. Has not taken over the feeder pig work

You will also recall that I discussed with you and 
Dr. Downen the possibility of changing the job de­
scription of he and Mr. Butler to give them each some 
4-H responsibility. I did this when Tommy Patterson 
left, with the idea of giving a new ag agent some 
adult as well as 4-H exposure. My idea was to help 
even out the heavy work load that seems to fall on 
4-H agents.



A154

There seems to be some question about changing the 
job description; therefore, I dropped the idea because 
it had no chance of working without administrative 
backing.

Also, let me remind you that his actions and lack of 
performance have been a concern of the committee 
in the past. Mr. Donnell brought this up with him 
in the committee meeting on October 16, 1979.

Mr. Boone also charged that I am putting too much 
paper work on him. I can’t think of any paper work 
he has been given that has not been given to other 
staff members. As you know, most of it comes to us 
through the chain of command. The case is—he will 
simply not do it, or not do it correctly. (Emphasis 
added)
On July 6, 1981 Elliott acknowledged in writing that 

he had been advised that his MBO rating for the time 
period of July 1, 1980 through June 30, 1981 was 3,0 (Col. 
Exhibit #64, supra). A  handwritten notation on the 
acknowledgement “I am not pleased with a 3.0 rating” 
indicated Elliott’s dissatisfaction with the rating. He tes­
tified that he was never given the opportunity to discuss 
this rating with District Supervisor Luck.

Heavy emphasis was placed by Elliott’s supervisors 
at all levels throughout this hearing on ‘‘professional re­
sponsibility” . I agree, as stated, supra, that a county 
agricultural extension agent is a “professional” and is 
expected to exercise professional discretion in self-super­
vision in his daily activities. However, I cannot agree 
that this means that an agent, once hired should be 
allowed to “do his own thing” and “fail to do his job” 
for years without an official reprimand if necessary or 
otherwise some “ clear and specific” instructions for im­



A155

proving a problem situation if it, in fact, existed. Em­
ployer’s claim that they were very lenient with employee 
and gave him every opportunity to improve his perfor­
mance” is not sufficient. Wherein lies the professional 
responsibility to exercise supervisory authority? It ap­
pears that although Shearon on several occasions may 
have raised the question of Elliott’s performance with 
his supervisors prior to the MCAEC committee meeting 
August 27, 1981 and that he may have made good faith 
efforts to “motivate and assist Elliott in improving his 
performance” , I can find no good reason for an agent, 
under the circumstances, to have been greatly concerned 
or apprehensive about being subject to discipline relative 
to his performance and certainly not termination of em­
ployment when he received no official reprimand and 
received satisfactory performance ratings. Accordingly, 
I can find no legal justification to sustain employer’s 
charge of insubordination and/or improper performance 
prior to the end of the 1981 fiscal year. Furthermore, 
as the trier of fact, I find that neither Luck, Turner or 
Shearon made an effort to explain to the MCAEC com­
mittee the disparity in Shearon’s report on Elliott’s per­
formance and his MBG ratings as signed by Luck and 
officially sanctioned administratively, at the committee 
meetings on August 17 and August 27, 1981. Luck was 
not called during the hearing to explain the ratings or 
in support of Shearon, nor did Turner or Downen satis­
factorily explain the disparity during the hearing.

It was claimed by employer that from October 21, 
1981, after Downen’s investigation was concluded, through 
December 18, 1981 the day that Downen proposed that 
Elliott’s employment be terminated, it was necessary for 
Elliott, in order to insure the security of his job, to carry 
out Shearon’s instructions and that had he done so the



A156

disciplinary period, which it claimed began August 5, 
1981 and Downen’s subsequent written warning on No­
vember 5, 1981 (Exhibits #108 and 117A, supra), would 
have ended successfully and any threat of termination 
would have been avoided. It was concluded by this hear­
ing examiner, supra, that Downen’s August 5, 1981 warn­
ing was premature, but that he was justified in the No­
vember 5, 1981 warning following his investigation of the 
Madison County livestock field day incident. It should 
be noted that this warning “ . . . I am warning you again 
that verbally abusive outbursts are improper job be­
havior and will not be tolerated and is the type of job 
behavior which can lead to further disciplinary action” 
related to job behavior and not performance and also 
implies an opportunity for employee to correct his be­
havior, In its offer of proof employer failed to show that 
employee had ever been officially reprimanded or disci­
plined for inadequate performance until after Downen’s 
instructions to Shearon following his investigation trip 
to Jackson October 20, 1981, that “ in keeping with UTIA 
disciplinary policy all matters pertaining to Elliott should 
be documented” . Both Shearon and Downen testified that 
Shearon was so instructed. Then followed the series of 
letters from Shearon to Downen, the exchange of letters 
between Shearon and Elliott and ultimately Downen’s 
letter of December 18, 1981 some six weeks after his No­
vember 5, 1981 letter to Elliott proposing that his employ­
ment with the AES be terminated, all discussed, supra.

It is clear that Elliott did not make a concentrated 
effort to complete any substantial number of small farm 
surveys at any time up to and including during the time 
of this hearing. It is also clear however, that Shearon’s 
instructions to him during this period were not unmis­
takably clear as they should have been at all times and



A157

more specifically under the circumstances, but in fact in 
my opinion, at times were confusing and in conflict with 
previous instructions. Whether or not Elliott deliber­
ately and purposely misunderstood Shearon’s assignments 
or whether or not Shearon deliberately and purposely 
made them difficult to follow I cannot say. The evidence 
on the other hand is clear that Elliott did in his letters to 
Shearon, supra, indicate that he was making an attempt 
to follow instructions, that he did not fully understand 
what was expected of him, and at least on paper indi­
cated that he would follow Shearon’s instructions, “ if 
you will tell me what I am doing wrong and tell me 
what you want” . Shearon testified that he continued to 
be “ disappointed and frustrated” at this point; all the more 
reason for Shearon’s supervisors to step in and assist 
Shearon in outlining specific, unquestionably clear in­
structions for Elliott. I cannot find within this record 
that this was ever done.

On June 25, 1982 Elliott was notified by District 
Supervisor Luck that his current MBO rating for the fiscal 
year ending June 20, 1982 was 1.0 (Exhibit #144). UTIA 
AES procedure following an unsatisfactory MBO rating 
of an average score below 1.5 which clearly indicates 
failure to meet minimum standards, “requires re-exami­
nation of job assignment and/or formal plan of action for 
considerable improvement” . I find it difficult to reconcile 
the fact that Luck was not called, as Elliott’s district super­
visor, who is responsible for officially rating him, to 
speak either for or against him during this hearing. Ac­
cording to employer’s own proof, Luck’s role in evaluating 
Elliott’s performance was minimized. Yet Exhibit #144 
which shows a rating of 1.0 implies that employer claims 
Luck can now objectively determine that Elliott’s per­
formance was substandard during this period. With this,



A158

I cannot agree; it defies common reasoning that under the 
circumstances that either Luck or Shearon could have 
objectively determined an MBO rating for Elliott for the 
1981-82 fiscal year.

Considering all the foregoing evidence I conclude 
that the UTAES, the claimant in this hearing has not sat­
isfactorily met its burden of proof to show that Robert B. 
Elliott has not satisfactorily performed the work required 
of him as an agricultural extension agent with agrcultural 
program responsibilities in Madison County. Further­
more, if he has been insubordinate, it was consistently 
and continuously overlooked, thereby, in my opinion em­
ployer effectively failed in its burden of proof on the 
charge of insubordination.

In further support of its general charge that employee 
failed to carry out instructions given to him by his super­
visors, employer offered proof that employee failed to keep 
proper mileage record books and turn them in promptly, 
that he failed to use his talents in writing news articles 
for the Jackson Journal, that he failed to complete an 
assignment in conducting a 4-H crop judging session for 
the 1981 fair to be held in September of that year, and 
that he failed to write the swine portion of an annual 
plan of work. (Exhibits #35, 36, 37, 41, 44 and col. Ex­
hibit 33)

Downen testified that a request was made of Madison 
County agents to provide their mileage records for the 
month of June, 1981, which was prompted by an audit 
of an unrelated program, the expanded food and nutri­
tion educational program (EFNEP) whereby the AES 
was required to provide mileage books in sample counties 
that the federal auditors visited. On cross-examination 
Downen admitted that the EFNEP audit was unrelated



A159

to small farm program and that Madison County was se­
lected in the First District for examination of mileage 
books by him, “ that was a happenstance” , and that Madi­
son County was the only county in District One where 
mileage books were requested. Downen testified that he 
requested of all district supervisors that they provide him 
with the mileage books for all of the agents in certain 
counties and one per district, but that there was no written 
communication requesting the mileage books of agents 
in Madison County. He testified that he made this re­
quest in a staff meeting with supervisors in Nashville on 
June 3, 1981. Downen had asked the supervisors to get 
the books for one month, June 1981, but it is unclear how 
this was conveyed to Elliott. On July 30, 1981 Shearon 
wrote to Elliott (Exhibit #36) as follows:

Since you have not produced a single mileage record 
for the period of July, 1980 through June 1981 I would 
like to have every mileage book for the period July, 
1978 through June, 1980. Please put them on my desk 
before going home this afternoon.

There was nothing in Exhibits #35, 36, or 44, or 
otherwise admitted in evidence to show any written 
or oral requests from Downen for anything other than 
one month, that is for June 1981. However, assuming 
Shearon requested the mileage books from Elliott for the 
month of June sometime after Downen’s June 3, 1981 
meeting with supervisors, Shearon’s letter of July 30, 1981, 
supra, indicates that sometime prior to that time he had 
requested mileage records for the period July, 1980 through 
June, 1981 and in that letter he instructed Elliott to turn 
in mileage books for the period July 1978 through June 
1980. Further review of Downen’s testimony shows that 
he received mileage books for the month of June from



A160

other agents in July and August. Downen further testified 
relative to the mileage book request as follows:

(Q) Do you have any idea why he (Shearon) would 
have asked him (Elliott) to produce them a full 
year . . . when you had only requested them 
for one month of the other employees?

(A) Yes sir. I know why.
(Q) Why?
(A ) Because the only agent who did not have June 

1981 in the five districts was Mr. Elliott and I 
asked that Mr. Elliott produce them for three 
years, as I indicated the other day. I don’t re­
member which day. I wanted, to be sure that 
there was not a possibility that Mr. Elliott had 
misplaced the one month. I was anxious that 
Mr. Elliott was complying with the policy of 
keeping the mileage record book.

(Q) That answers the question of why he asked for 
Mr. Elliott’s mileage for the period July 1978 
through June 1980 but it does not answer the 
question of why he would ask him to produce 
the records from July 1980 through June 1981, 
when you had only asked for one month?

(A) Senator, I don’t understand.
(Q) Well, I understood your testimony, you said you 

asked in the counties affected that the agents 
with travel allowances, produce their mileage rec­
ord books for the month of June 1981 because 
you wanted to use them in case of an audit and 
you wanted to check on it. Now, I remember 
that correctly now, am I not?

(A) I did not say that I wanted to use them in case 
of an audit.



A161

(Q) Oh? You asked for June 1981, is that correct?

(A) That’s correct.

(Q) Do you have any explanation as to why he should 
come back and ask Mr. Elliott for a full year from 
June, 1980 through June 1981?

(A) He’s asking—for three years now.

(Q) You are right—-

(A) Yes sir in response to my, I assume in response 
to my request.

(Q) All right, now then, it is apparent from this let­
ter, Exhibit #36, if Mr. Shearon is telling the 
truth that he had asked Mr. Elliott, and indeed 
from his testimony, that he had asked Mr. Elliott 
for a full year before you got to that three-year 
demand. Isn’t that correct, in this letter?

(A) This is correct and certainly Mr. Shearon as 
county extension leader had the right to ask for 
that if he wishes.

(Q) Do you have any idea why Mr. Elliott was the 
only one he asked to give that full year?

(A) I don’t know what prompted Mr. Shearon to 
ask him for a full year but I do know that the 
other agents had supplied the June 1981 booklet, 
record books.

It is unclear whether or not Downen’s request for the three 
years was made before Shearon’s July 30 letter or after­
wards. It is clear, however, from Shearon’s letter that 
he had requested mileage for one year prior to that time. 
Downen further verified again on cross-examination that 
he did not receive all the books requested of other agents 
until sometime in August. Although there was no written



A162

documentation prior to July 30, 1981 it can be presumed 
that if the initial request was made for one month as 
Downen requested, then the request was changed to one 
year prior to the time when Downen received all of the 
other books requested from other agents in August. 
Downen testified that he did not make any investigation 
to determine exactly when the first request was made by 
Shearon, but said that “ the most significant part of the 
whole matter is the fact that Mr. Elliott was not maintain­
ing his record books” .

The evidence is clear that Elliott did not turn in the 
mileage books as requested. However, it is unnecessary 
for me to weigh this against the clarity and propriety of 
the request as might be perceived by a man of “reasonable 
mind” because it must be presumed that Elliott as an em­
ployee of the AES was reimbursed for his official mileage 
for that period of time. Since official travel by agents 
for which they are reimbursed must be approved by their 
supervisors, it must be presumed that Elliott’s records were 
maintained and submitted in an “ acceptable” manner. Fur­
thermore, Elliott’s official MBO rating that was signed by 
Luck and officially sanctioned by Hinton and Downen was 
3.0 for that fiscal year ending June 30, 1981, indicating 
performance above acceptable standards. (Col. Exhibit #64, 
supra). Therefore, this charge cannot be sustained.

Employer also introduced evidence that employee 
began a series of news articles in the spring of 1980 in 
the Jackson Journal, that he continued to write for a 
period of time but abruptly quit. Shearon testified that 
he was disappointed but admitted that writing articles 
for the paper was voluntary. This was corroborated by 
additional testimony from Butler and Elliott and there­
fore, cannot be sustained as a charge of failure to complete 
assignments or otherwise in violation of work rule #25.



A163

The charge relating to the swine plan of work was 
addressed, supra.

In further support of the general charge of failure to 
complete assignments, Elliott was charged with failure 
to perform training of a 4-H crop judging team for the 
September 1981 fair. Elliott testified that he requested 
tryouts and received responses from only three white 
youths. He further claimed that a Mrs. Neal Smith, 
mother of a fourth white boy interested in the crop 
judging event went directly to Mr. Shearon requesting 
that he hold the workouts, bypassing him. Elliott alleged 
this was done because of racial prejudice. Shearon testi­
fied that he received such a request from Mrs. Smith 
and did in fact conduct workouts, but only because Elliott 
had failed to do so. I cannot presume to know Mrs. 
Smith’s reason for going directly to Shearon, or whether 
or not there was insufficient response to Elliott’s request 
for tryouts. Considering the time, September 1981, and 
the circumstances existing at that time, I could draw an 
inference as to why Shearon held the tryouts and why 
Elliott did not, but it would be speculative. Therefore, 
I can only conclude that the proof is inconclusive on this 
charge.

February 25, 1980 minutes of the Madison County 
Extension Office conference were introduced as Exhibit 
#25  with reference to a specific paragraph which was 
underlined with a marginal note “never done” . The para­
graph reads as follows:

Mr. Robert Elliott discussed with Mr. Goulder the 
possibility of starting a woodwork project group for 
junior high and senior 4-H’ers only. Mr. Goulder 
was pleased with the suggestion and offered to get 
a group together for the group.



A164

Shearon testified in direct examination that at the time 
this was merely a report and his notation “never done” 
in the margin reflected “to my recollection that fact that 
sometime later in discussing this with Mr. Goulder, pointed 
out to myself that they were never able to, to get the 
projects off. I do not know exactly why they were not, 
but, but that project was never done” . In cross-examina­
tion Shearon testified that “these were underlined by me 
after I was requested to get some information concerning 
Mr. Elliott’s performance” . This was in reference to 
Downen’s instructions to Shearon after his investigation 
on October 20, 1981. In explaining the marginal notation 
Shearon said “ I was merely pointing out the fact that 
Mr. Elliott was habitual in agreeing to do some of these 
things and then that he would seem to never find time 
or never get around to working out a work plan and 
getting started and completing projects that were dis­
cussed.” Shearon admitted on cross-examination that he 
had never called Elliott in and asked him if the project 
was ever done. On further examination Shearon could 
not say with certainty whether in fact the project had 
ever been done. It was also undenied that Mr. Goulder 
was the 4-H agent with 4-1 i responsibilities and therefore 
responsible for 4-H projects. Furthermore, it appears 
from the evidence that Elliott’s offer of assistance to 
help Mr. Goulder in the 4-H woodworking project was 
voluntary and finally employer was unable to effectively 
show that the project in fact was not completed. There­
fore, I find no support here for the charge of failure to 
complete “other assignments” in support of the broader 
charge of failure to carry out instructions given employee 
by his supervisors or violation of UTIA work rule #25.



A165

10. The Charge of Violating UTIA Work Rule #13, 
Use of Abusive Language, in that the Employee 
Directed Profane Expletives at the Shop Foreman 
of Murray Truck Lines on June 18, 1981, Verbally 
Threatened the Owner of Murray Truck Lines 
on June 18, 1981, and Directed Profane Expletives 
at Mr. Tommy Coley During the Madison County 
Livestock Field Day on July 24, 1981

Employer failed to meet its burden of proving the 
charge of improper behavior by employee at the Murray 
Truck Lines, supra. Korwin, the shop foreman, was not 
called to testify at this hearing. Only Murray was called 
and no evidence was introduced to show that Elliott used 
profanity at the Murray Truck Lines. Since the burden 
of proof was on employer and Elliott’s comments to Murray 
were, I’ll see you down the road or something to that 
effect, on which Murray and Elliott’s testimony disagreed, 
I cannot find this sufficient to support a charge of violating 
work rule #13.

It was clear however, as shown supra, under the charge 
of improper behavior at the Madison County livestock field 
day on July 24, 1981 that Elliott did direct profane ex­
pletives at Tommy Coley during that field day. The words 
used by Elliott, as supported by the evidence in this hear­
ing were “wait a goddam minute, wait a goddam minute, 
wait a goddam minute” , in response to what he heard as the 
word “nigger” used by Coley in referring to a black 4-H 
member. Three people, Mr. Boone, Dr. Neel and employee 
testified that Coley used the word “ nigger” . It was also 
undenied that Elliott was already angry at the time of the 
incident because he felt that Shearon had purposely over­
looked Mr. Boone, a black farmer to be interviewed rela­
tive to his RAL-GRO experiment, supra. It was undenied 
that other extension agents have used profanity while



A166

working with or among extension service clientele without 
reprimand. This is not condoned by this hearing examiner 
nor should it be condoned by the AES, nor is the word 
“nigger” used to refer to members of the black race con­
doned. However, taken in the context of UTIA work rule 
#13 “horseplay, disorderly conduct, or use of abusive 
language” , and taken in the context of the situation and 
circumstances under which the profanity was used I cannot 
but find that employee violated UTIA work rule #13 at the 
Madison County livestock field day on July 24, 1981 keep­
ing in mind “ . . . the nature of the offense, the past record 
of the offending employee, and the penalities appropriate to 
the offense” .

In Downen’s letter to Elliott dated November 5, 1981, 
Exhibit #112A, supra, Downen informed Elliott that he had 
completed his investigation of the Coley incident, that 
he considered the language used in addressing Coley was 
in his opinion the type of abusive language which is pro­
hibited by the University work rules and “ accordingly, I 
am warning you again that verbally abusive outbursts are 
improper job behavior and will not be tolerated and is the 
type of job behavior which can lead to further disciplin­
ary action” . As stated supra, I agree that Downen’s dis­
ciplinary procedure was appropriate here, which included 
a warning and implied that the disciplinary process would 
attempt to correct the problem in accordance with UTIA 
disciplinary procedure, and if not corrected could lead to 
further disciplinary action.

SUMMARY OF FINDINGS AND CONCLUSIONS 

Inadequate and/or Improper Job Behavior

1. It was found that Elliott played golf during work­
ing hours on July 31, 1981 at 4:00 p.m. That standing 
alone would not require disciplinary action, but viewed



A167

in the light of UTIA policy, the undisputed testimony of 
both Shearon and Elliott that Elliott had been warned of 
complaints against golf during working hours and had 
been relieved of professional duties of assisting golf courses, 
this was not in accord with propriety and does amount 
to improper and/or inadequate employee behavior. This 
finding is considered herein, keeping in mind the . . 
nature of the offense, the past record of employee, and the 
penalties appropriate to the offense” .

2. Employer voluntarily waived its right to examine 
employee relative to the charge of conducting a commercial 
cabinet business during working hours, choosing not to 
go forth with its proof, thereby failing in its burden of 
proving the charge.

3. After listening to the evidence presented by both 
parties, due to the nature and circumstances of the charge 
of making, or allowing to be made, harassing telephone 
calls to the home of Jack Barnett, it was concluded that 
it would be in the best interest of justice to leave final 
disposition of this charge with the criminal court of Madi­
son County and the Tennessee criminal court system.

4. It was concluded that employee did enter upon 
the premises of Murray Truck Lines on July 18, 1981 
and that he was on duty at the time. It was further con­
cluded that Downen’s oral warning of August 5, 1981 to 
Elliott that his behavior was improper based on shop fore­
man Korwin’s letter of complaint and that Downen’s letter 
affirming the oral warning which was placed in Elliott’s 
personnel file, were premature under the circumstances. 
Furthermore, in reviewing the entire evidence of record, 
it was concluded that employer, the claimant in this hear­
ing, failed to meet its burden of proof on the charge of 
improper behavior at the Murray Truck Lines on July 
18, 1981.



A168

5. Relative to the charge of improper job behavior at 
the Madison County field day on July 24, 1981 it was first 
concluded that while Tommy Coley may have pronounced 
the word negro as “ nigra” with no intended offense to 
the black race, three other people, Neel, Boone and Elliott 
heard the pronunciation as “ nigger” and it was so con­
cluded. It was further concluded that Downen’s Novem­
ber 5, 1981 letter relative to improper behavior at the field 
day was appropriate under the circumstances in that em­
ployee’s profane response to what he perceived as racially 
discriminatory speech and his subsequent false accusa­
tions against Coley were unjustified and not protected 
freedom of speech under the constitution, and evidenced 
traits undesirable in an AES employee.

6. Considered in the light of the professional respon­
sibilities of an extension agent in serving AES clientele 
and overall AES policy and custom related thereto it was 
concluded that employer offered insufficient proof to meet 
its burden in proving that Elliott repeatedly left his work 
station or work area or that he otherwise was in violation 
of work rule #4 .

7. While it was undisputed that policy relating to the 
use of the office telephone by Madison County extension 
employees was rather loosely enforced, the fact is undis­
puted that a number of personal long distance calls were 
made by employee from the Madison County AES phone 
and whether or not they were ultimately paid for by 
employee, was in violation of work rule #22.

8. It was found that employee’s actions on July 24, 
1981 at the Madison County livestock field day, taken 
in the context of UTIA work rule #13 “horseplay, dis­
orderly conduct, or use of abusive language” and consider­
ing the circumstances under which the profanity was used, 
was in violation of UTIA work rule #13 and Downen’s



A169

November 5, 1981 warning relating thereto was appro­
priate. (Listed as Charge No. 10 by employer, supra)

Violation of UTIA Work Rule #25, Insubordination or Re­
fusal to Follow Instructions or to Perform Designated 
Work and/or Inadequate Work Performance

Employer’s proof relative to this charge was primarily 
focused toward an effort to show employee’s failure to 
complete his assignments in the small farm family program 
and more specifically “ the small farm survey assignment” . 
Other assignments relating to this charge discussed sepa­
rately, supra, are not herein summarized separately but 
overall in terms of performance and the issues relating 
thereto.

The evidence, in my opinion, is clear that the small 
farm survey program was never satisfactorily completed. 
It was also found that clearly Downen, Turner and Shearon 
considered the survey important to help Elliott effectively 
plan and upgrade his educational program with his small 
farm clientele. While in the beginning the survey assign­
ments appeared to be reasonably specific and clear, during 
the latter part of 1981 there appeared to be a serious break­
down of communications between Shearon and Elliott.

It was found that Elliott’s supervisors including 
Shearon, Turner and Downen all considered Elliott not 
only capable of doing excellent work but agreed that he 
has in fact accomplished much good work over the years. 
As stated herein, supra, Downen testified that Elliott’s work 
up through June 30, 1981 was average for agents who had 
been with the AES for some fifteen years.

Supervisor Turner testified that he held Elliott re­
sponsible for the failure to do the small farm surveys and 
that he expected him as a “professional” to do the assign­



A170

ment. The evidence is clear however, that neither Turner 
nor Shearon took any affirmative disciplinary action 
against Elliott for failure to complete the surveys. Both 
Turner and Shearon claimed they had a continuing ex­
pectation that Elliott would eventually complete the as­
signment and that they gave him every reasonable oppor­
tunity to do so. It was undenied that employee was given 
numerous opportunities to complete the assignment and 
that as claimed by employer “ treated with leniency by his 
supervisors” . However, the claim by employer that com­
pletion of those surveys was of “ critical importance” was 
in my opinion, negated by failure on the part of employee’s 
supervisors to formally reprimand him. This was further 
substantiated by his satisfactory MBO ratings up through 
June 30, 1981.

In summary, it was found that while Elliott did a lot 
of good work during the period 1976 through June 30, 
1981, he also failed to complete some specific assignments 
which were clearly conveyed to him. However, it was 
also found that he was not officially reprimanded or dis­
ciplined, but to the contrary received satisfactory MBO 
ratings that satisfactorily met AES prescribed standards 
during that period. Therefore, the charge of violating work 
rule #25, insubordination or refusal to follow instructions 
or perform designated work and/or inadequate work per­
formance cannot be sustained. It was further concluded 
that employer failed in its burden of proving employee 
violated work rule #25 or that his work performance was 
unsatisfactory after June 30, 1981 up to and including the 
time of this hearing.



A171

RACIAL DISCRIMINATION AS A  DEFENSE TO THE 
CHARGES OF IMPROPER AND/OR INADEQUATE 

JOB BEHAVIOR AND INADEQUATE 
WORK PERFORMANCE

As stated, supra, it was not my charge as trier of fact 
to consider issues in this hearing other than those that 
directly relate to employee behavior and performance. In 
the opinion of this hearing examiner, this contested case 
hearing was not the proper forum to try issues unrelated 
to the proposed termination of Elliott. However, while 
I had no jurisdiction in this proceeding to try a civil rights 
case on the merits, employee was given the opportunity 
to submit evidence in an effort to prove racial discrimina­
tion as an affirmative defense. Otherwise, if a proper 
forum exists, it exists in the federal court in which Elliott 
has filed his federal lawsuit against the UTAES, supra.

In this administrative hearing the UTAES had the 
burden of proving by a preponderance of the evidence any 
and/or all charges against employee relating to job be­
havior and performance. Since this is not a civil rights 
case under Title VII of the Civil Rights Act of 1964 as 
amended, 42 U.S.C. Sec. 2000e. et seq., nor under 42 U.S.C. 
discrimination, employee must prove by a preponderance of 
Sec. 1983, in order to successfully defend charges of race 
the evidence that the disciplinary actions taken against 
him were because of his race, and that his supervisors only 
used the charges of improper job behavior and inadequate 
job performance as a pretext to propose his termination 
because he is black. Thus, in his defense, Elliott had 
the same burden of proving pretext as contained in Mc­
Donnell Douglas Corp. v. Greene, 411 U.S. 792 (1973) and 
Texas Department of Community Affairs v. Bur dine, 101 
S. Ct. 1089 (1981).



A172

Elliott claimed Shearon had discriminated against 
him since he became extension leader in 1976, simply be­
cause he is black. I can find no evidence sufficient to 
support that allegation. To the contrary, it appears to this 
hearing examiner that Shearon and Elliott’s district su­
pervisors were unusually lenient with and supportive of 
Elliott throughout this period even to the point of relin­
quishing their supervisory authority to Elliott’s “profes­
sional” discretion.

I cannot agree with Elliott’s claim that Shearon’s Or­
der prohibiting him from making official visits to golf 
courses or otherwise visiting golf courses during working 
hours was in retaliation for his civil rights efforts relative 
to golf clubs. I do conclude however, that there was 
sufficient evidence relative to golf to cause a supervisor 
to be apprehensive about an employee under such cir­
cumstances being seen on golf courses during working 
hours. I conclude that Shearon, as would be any ex­
tension leader, was within his right, under the circum­
stances, to make an effort to correct what he perceived as 
a problem or potential problem situation and should make 
such an effort regardless of the race of the employee in­
volved. Whether or not I question the propriety of 
Shearon’s actions is not the issue. In my view, after lis­
tening to some 28 days of testimony and argument and 
thoroughly reviewing this record, Shearon would have 
acted similarly under the circumtances, if Elliott had 
been Caucasian or of any other race.

I further find no proof that Elliott’s change in job as­
signment, changed in 1969 from being a 4-H agent to the 
small farm family program, was discriminatory. His claim 
of discrimination was based on the allegation that the 
program deals only with low-income families who are 
predominately black, and that his transfer was to permit



A173

him to work only with blacks. This was not substantiated 
by the proof. To the contrary, the proof clearly shows that 
more small farm families in Madison County grossing less 
than $10,000 annually from agricultural sales, are white 
than are black. Granted, Elliott may have encountered 
difficulty in getting white farmers to cooperate and par­
ticipate in his program, although some testified in his 
behalf; all the more reason for strong support and as­
sistance from his supervisors. Whether or not he received 
such assistance, which he claims he did not, I cannot find 
discrimination in this change of assignment.

Elliott’s claims of failure to receive promotions or be 
promoted to extension leader because of his race are not 
well founded. The evidence is clear that Elliott never 
availed himself of the opportunity to go back to graduate 
school under the AES liberal continuing education policy 
for extension agents. Furthermore, there is no evidence 
of record that Elliott was paid less than other agents with 
comparable experience.

Elliott claims that he was discriminated against in 
that his assignments called for large scale farm surveys 
whereas other Madison County agents were not required 
to make such surveys. However, I conclude that the evi­
dence of record is sufficient to show that the purpose and 
importance of the small farm survey program was a special 
program with national impetus and the assignment justi­
fied. Furthermore, as stated supra, after Hinton developed 
an organizational plan for moving forward on this small 
farm program in Tennessee, Elliott had an opportunity to 
use a program aid to assist him in making the surveys but 
declined. While this may not have been in keeping with 
the AES policy guidelines set forth by Hinton as to how 
to get the job done, Elliott, an associate extension agent 
was allowed to decide how it was to be done in Madison 
County. Under the circumstances where there had been



A174

continuous allegations of lack of planning, getting bench­
mark data on small farms, etc. in effect allowing the suc­
cess or failure of a program of national impetus to turn 
on an agent’s decision not to use a program aid to assist 
him in doing the surveys, reflects anything but discrim­
ination.

Elliott further claims that Downen, Shearon, Luck, 
Turner, Coley, Murray, Korwin, and the white members 
of the MCAEC conspired together to get him fired be­
cause of his race. As stated, supra, I cannot presume to 
know what took place outside the parameters of this hear­
ing or in the minds of people involved. The evidence 
does not support this claim. However, thorough review 
of the entire record leads me to believe that a greater ef­
fort could have been made on the part of Elliott’s super­
visors in fully informing the MCAEC on Elliott’s past per­
formance based on his official ratings and in working 
more closely with Elliott to resolve what was perceived 
as problems beginning as early as 1976. For example, the 
record shows that Associate Dean Hinton was assigned 
the state-wide responsibility for the success or failure 
of the small farm family program; yet, there is no evi­
dence of record to show that he was ever made aware of 
a problem in Madison County or that he was ever in any 
way involved other than providing guidelines for state-wide 
participation. Furthermore, Elliott testified that Assistant 
Dean Hicks, who is the state EEO officer and responsible 
for handling civil rights related matters for the AES, 
told him that he was told to “keep hands off” , and not get 
involved in this particular hearing situation. It is a matter 
of record that Hicks was not in any way involved in this 
hearing. I find no evidence that he, as EEO officer, either 
voluntary or by directive of Dean Downen made any effort 
to resolve problems which appeared to this hearing officer 
to be his responsibility.



A175

While a presumption may be raised, I cannot conclude 
from the foregoing that Elliott was discriminated against 
because of his race. The entire evidence of record will be 
given appropriate weight in considering a remedy.

It was claimed by Elliott that Shearon’s annual per­
formance evaluations, notes of meetings, and many of 
Shearon’s letters, especially after October 20, 1981 were 
either forged, created after-the-fact, or pretextual docu­
ments to cover Shearon’s racial bias. Elliott claimed that 
Shearon did not deny that Elliott did not receive a copy 
of all of Shearon’s notes, letters or memoranda to Luck, 
Turner and Downen.

While open communications between supervisor and 
subordinates is always desirable, there is no requirement 
that a supervisor must notify a subordinate that he is taking 
notes or that he is talking to his superiors about the sub­
ordinate’s performance or behavior. While the timeliness 
and manner of documentation relative to the charges herein 
must be taken into consideration with respect to what 
weight, if any, it carries in support of the charges, I find 
no good reason to believe that had Elliott been of another 
race that his situation would have been handled any dif­
ferently.

As another example of alleged discrimination, Elliott 
claimed that Shearon’s demand for his mileage records for 
three years was discrimination against him. It was found, 
supra, that while there was a failure on Elliott’s part to 
keep mileage records in the standard AES mileage books, 
he was reimbursed for mileage officially claimed during 
the period in question which creates a strong inference 
that he was however following acceptable Madison County 
Office practice. By the same reasoning I cannot conclude 
that Downen’s selection of Madison County as the District



A176

One county to check mileage records was anything other 
than by chance rather than design. Although the initial 
request from Downen was for one month, Shearon for 
some reason requested one year, and subsequently at 
Downen’s request mileage books for three years were 
requested, a finding of discrimination would be speculative. 
Again, I cannot conclude that this would have been han­
dled differently had Elliott been of another race.

Elliott further charged Shearon with racial discrimina­
tion in not asking black businesses to be financial sponsors 
of the 1981 Jackson Farm Business Week, that he was 
never appointed as a superintendent of the fair held in 
Madison County each year, and that the MCAEC acted on 
the basis of race in recommending his removal from the 
county.

It is a well-settled rule that an employer such as 
the UTAES cannot be held responsible for statements by 
private individuals. Silver v. KCA, supra, Elliott was at 
all times an employee of The University of Tennessee and 
not Madison County. This was stated clearly in State ex  
rel. Butler v. Alexander, 634 S.W. 2d 59 (Tenn. App. 
1982) as follows:

The extension service is an agricultural service which 
is part of The University of Tennessee, and employees 
of the service are actually employees of the University 
(634 S.W. 2d at p. 598).

Elliott further claimed that Shearon discriminated 
against him in his assignment to work at the “ chicken 
shack” during the fair and also that white citizens acting 
as 4-H volunteers at the chicken shack treated him in a 
discriminatory manner by monopolizing the duty at the 
cash register while Elliott had to “sweat it out” over an 
open fire cooking chickens. The “chicken shack” was a



A177

4-H barbeque chicken sales activity at the fair. That the 
AES is not responsible for the acts of private citizens was 
stated, supra. Furthermore, the testimony of Shearon, But­
ler and Elliott showed that it had been an assignment for 
many years for all male agents to help cook chicken each 
year at the “ chicken shack” . Moreover, it was undenied 
that agents John Butler and Robert Elliott would each 
year prior to the fair go to the chicken shack to renovate 
it, and do any necessary repairs and that they frequently 
used Elliott’s personal equipment such as paint sprayer, 
automatic nailing machine, etc.

An overall and thorough review of the entire evidence 
of record leads me to believe that employer’s action in 
bringing charges against employee, resulting in these pro­
ceedings were based on what it, through its administrative 
officers and supervisors perceived as improper and/or in­
adequate behavior and inadequate job performance rather 
than racial discrimination. I therefore conclude that em­
ployee has failed in his burden of proof to the claim of 
racial discrimination as a defense to the charges against 
him.

REASONS FOR THE DECISION

Due to the magnitude of the charges brought against 
employee in this proceeding, and the numerous additional 
charges and issues relating thereto, the policy reasons 
for the decision on each charge and related subcharges 
were included, supra, within the body and context of the 
findings and conclusions.

REMEDY

In accordance with the foregoing findings and conclu­
sions, and summary thereof I find that the employer, 
UTAES has succeeded in proving its charges: (1) that



A178

employee played golf during working hours, (2) of im­
proper job behavior at the Madison County field day on 
July 24, 1981, (3) that employee made and charged per­
sonal phone calls to the Madison County Extension Office 
telephone in violation of UTIA work rule #22, and (4) 
that employee violated UTIA work rule #13 in that he 
directed profane expletives at private citizen, Tommy 
Coley, at the Madison County livestock field day on July 24, 
1981.

Employer failed in its charges: (1) that employee
engaged in the commercial business of making and in­
stalling cabinets during working hours, (2) of improper 
job behavior at the Murray Truck Lines on June 18, 1981, 
(3) that he violated UTIA work rule # 4 , (4) that he 
violated UTIA work rule #25, insubordination or refusal 
to follow instructions, and (5) of inadequate work perfor­
mance in that he failed in a timely and proper manner 
to complete assignments given to him pursuant to his job 
description, and failed to carry out instructions given to 
him by his supervisors.

This hearing examiner declined to rule on the charge 
against employee that he made harassing telephone calls 
to Jack Barnett, a resident of Gibson County, considering 
it in the best interest of justice to await the outcome of 
the pending charge through the Tennessee Criminal Court 
process.

Finally, it is my opinion that employee has failed in 
his defense in proving that the charges against him were 
a pretext, or cover up for racial discrimination by em­
ployer, AES.

The record of this hearing is replete with evidence 
that employer considers Robert Elliott to be an employee 
who has the capabilities of doing excellent work as an



A179

extension agent with an “agricultural programs assign­
ment” . The record is also clear that Shearon did make 
an effort to motivate and assist Elliott, but was “frustrated 
and disappointed” , in his efforts, I conclude, not only by 
Elliott’s lack of response but by either his inability to 
communicate the situation to his supervisors or their un­
willingness to listen. Furthermore, it was obvious that 
assignments were not always clear and it was equally 
obvious that Elliott failed to perform some assignments 
that were clear, but this failure to perform was condoned 
although perhaps not by Shearon, in fact, by his official 
rating and a failure to officially reprimand or discipline 
him.

While the documentary evidence offered by employer 
relating to behavior and performance after August 27, 
1981, at which time the MCAEC recommended that Elliott 
be removed from employment from Madison County, was 
considered and given weight as deemed appropriate in 
relating to continuing behavior and performance, the spe­
cific charges against employee primarily relate to the pe­
riod 1976 up to and including the July 24, 1981 incident 
at the Madison County livestock field day and in the 
opinion of this hearing examiner must be weighed accord­
ingly in prescribing a remedy.

Therefore, in accordance with the foregoing findings 
and conclusions, it is my opinion that the best interest 
of justice will be served by giving employee another 
chance of proving that he is capable, and willing to pro­
vide a needed service to AES clientele as an agricultural 
extension agent and to give employer an opportunity to 
show that it has the capabilities and inclination to super­
vise Elliott in such activities.

In considering the relationship that obviously now 
exists between Shearon and Elliott, the obvious breakdown



A180

of communication and cooperation between them that it 
would be very difficult “ if not impossible” , for either of 
them to “bury the hatchet” and let bygones be bygones 
and work together in a harmonious relationship in the 
Madison County Agricultural Extension Office, It is my 
feeling that the situation that existed in the Madison 
County Office at the time of this hearing was not a result 
of either Elliott, Shearon or his supervisors incapabilities 
or incompetence, but rather a breakdown of communica­
tions and a failure to cooperate with each other in making 
a serious attempt to remedy the situation when it first 
became a problem, rather than waiting until it reached 
a point of obvious “no return” .

I, therefore, herein order that Elliott be reassigned 
and for a period of 12 months beginning within 60 days 
after the entry of this initial order, unless a petition for 
appeal, the agency gives notice of its intention to review, 
or a petition for reconsideration is timely filed, under the 
direct supervision of Associate District Supervisor, Gene 
Turner and District Supervisor, Haywood Luck. It is 
strongly recommended, though not mandatory that the 
reassignment be in the small farm program area. Whether 
or not employee is assigned responsibilities in a specific 
county, including Madison County, or whether his assign­
ment includes more than one county in District One or 
whether he is housed in the District One Extension Office 
or elsewhere shall be left to the discretion of Luck, Turner 
and the AES. Elliott’s specific assignment relative to small 
farm programs and in accordance with his current job 
description, except that he shall report directly to Turner 
and Luck, may remain essentially unchanged under this 
order at the discretion of the AES.

However, prior to the reassignment, under the direct 
supervision of Associate Dean of Agricultural Programs,



A181

Dr. Troy Hinton, Elliott’s assignment shall be reworked 
or redone and specifically outlined in writing, including 
a clearly outlined plan for evaluating performance which 
shall be explained to, and the understanding of acknowl­
edged by Elliott. It is strongly recommended that Hinton 
along with Luck and Turner meet with Elliott to go over 
the assignment and make sure that employer and employee 
are communicating. Furthermore, it is strongly recom­
mended that Assistant Dean, Dr. Billy G. Hicks, AES 
State EEO officer meet with Elliott and his district super­
visors early in this period and that he be available to 
work with them in the future to assist in resolving further 
questions involving this employee which relate specifically 
to his EEO responsibilities.

At the end of the 12 month period, assuming satis­
factory behavior and performance, employee may remain 
in this assignment under the direction of Turner and Luck 
or be reassigned to regular county duty at the discretion 
of the AES.

It is further ordered that the August 5, 1981 warning 
letter from Downen to Elliott, relative to the Murray 
Truck Lines incident and the MBO rating for the fiscal 
year ending June 30, 1982 be removed from employee’s 
personnel file. The said rating shall be held in abeyance 
indefinitely. In the alternative, if this can be construed 
as contrary to UTAES official policy, employee shalll be 
assigned a satisfactory rating for that period.

A record of the final results of this UAPA contested 
case hearing may be retained in employee’s personnel file.

In accordance with T.C.A. Sec. 4-5-315, the parties 
herein have the right to file an appeal from this initial 
order within ten days after entry. Petition for appeal 
from this order shall be filed in the office of Dr. W. W.



A182

Armistead, Vice President for Agriculture, 102 Morgan 
Hall, The University of Tennessee, Knoxville, Tennessee 
37901 before 5:00 p.m. EST on the tenth day following 
the entry of this order.

The ten-day period for a party to file a petition for 
appeal or for the agency to give notice of its intention 
to review the initial order on the agency’s own motion 
shall be tolled by the submission of a timely petition for 
reconsideration of the initial order pursuant to T.C.A. Sec. 
4-5-317, and a new ten-day period shall start to run upon 
disposition of the petition for reconsideration. Petitions 
for reconsideration must be filed, within ten days after 
entry of this initial order in the office of this hearing 
examiner at 117 Morgan Hall, The University of Tennessee, 
Knoxville, Tennessee 37901, stating the specific grounds 
upon which relief is requested.

If this initial order is subject both to a timely petition 
for reconsideration and to a petition for appeal or to re­
view by the agency on its own motion the petition for 
reconsideration shall be disposed of first, unless the agency 
determines that action on the petition for reconsideration 
has been unreasonably delayed.

This initial order, shall in accordance with T.C.A. Sec. 
4-5-314, become a final order unless reviewed in accor­
dance with the provisions of T.C.A. Sec. 4-5-315.

Entered this 4th day of April, 1983.
/ s /  B. H. Pentecost 

B. H. Pentecost
Assistant Vice President for 

Agriculture
The University of Tennessee 
Institute of Agriculture and 
Administrative Judge and Hearing 

Examiner



A183

(Filed July 9, 1985)

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 84-5692

ROBERT B. ELLIOTT,
Plaintiff-Appellant,

v.
THE UNIVERSITY OF TENNESSEE, et al, 

Defendants-Appellees.

Before: KEITH and MARTIN, Circuit Judges; and ED­
WARDS, Senior Circuit Judge.

JUDGMENT

ON APPEAL from the United States District Court 
for the Western District of Tennessee.

THIS CAUSE came on to be heard on the record from 
the said District Court and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here 
ordered and adjudged by this court that the judgment 
of the said District Court in this case be and the same 
is hereby reversed.

It is further ordered the appellees’ requests for attor­
neys’ fees and costs for defense of a frivolous appeal are 
denied. Plaintiff-Appellant shall recover from Defendants-



A184

Appellees the costs on appeal, as itemized below, and that 
execution therefor issue out of said District Court, if nec­
essary.

ENTERED BY ORDER OF THE COURT 
John P. Hehman, Clerk 
/ s /  John P. Hehman 

Clerk

Issued as Mandate: July 31, 1985 

COSTS: FOR APPELLANT

Filing fee .....................$
Printing.........................$1810.50

Total.......................$1810.50

A  True Copy.

Attest:

/s /  Nancy Schulkens 
Deputy Clerk



A185

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

No. 84-2559

ROBERT BUCKHALTER,
Plaintiff-Appellant,

vs.
PEPSI-COLA GENERAL BOTTLERS, INC., ROGER 

THOMAS KIEKHOFER, & ROBERT FRIEND, 
Defendants-Appellees.

Appeal from the United States District Court for the 
Northern District of Illinois, Eastern Division.

No. 83 C 3493—Nicholas J. Bua, Judge.

A rgued A pril 23, 1985—Decided July 18, 1985

Before Bauer and Coffey, Circuit Judges, and Gray, 
Senior District Judge *

Coffey, Circuit Judge. The plaintiff, Robert Buck- 
halter, appeals the ruling of the United States District 
Court for the Northern District of Illinois that his claims 
of race discrimination in violation of Title VII, 42 U.S.C. 
§ 2000e-2(a) (1982), and 42 U.S.C. § 1981 (1982) are 
barred by the doctrine of res judicata. We affirm.

*The Honorable William P. Gray, Senior District Judge of 
the Central District of California, is sitting by designation.



A186

I

The record reveals that the defendant, Pepsi-Cola 
General Bottlers, Inc. ( “Pepsi-Cola” ), hired the plaintiff, 
Robert Buckhalter, in September 1975, as a production 
line employee at its 51st Street plant in Chicago, Illinois. 
On June 10, 1978, Pepsi-Cola discharged Buckhalter, a 
black male, for violating Rule of Conduct IV-11, which 
prohibits employees from possessing alcoholic beverages or 
drugs on company property. Some two days thereafter, 
on June 12, 1978, Pepsi-Cola also discharged David Lynch, 
a white male, and James Ault, a white male, for violating 
Rule of Conduct IV-11. Buckhalter, Lynch, and Ault each 
filed grievances through their union representative and a 
grievance hearing was held for each employee pursuant 
to the terms of the collective bargaining agreement be­
tween Pepsi-Cola and Teamsters Local 744. Following the 
presentation of evidence at the grievance hearings, the 
Industrial Relations Manager upheld the discharge of 
Buckhalter and Lynch but reinstated Ault, finding that 
the employer failed to introduce sufficient evidence to 
establish that Ault had, in fact, violated the company rule. 
See In re Buckhalter and Pepsi-Cola General Bottlers, Inc., 
7 111. H.R.C. Rep. 96, 103-07 (1982) (“ In re Buckhalter” ). 
Buckhalter appealed the decision of the Industrial Rela­
tions Manager to the Labor Management Committee, con­
sisting of three union representatives and three repre­
sentatives from the Association of Chicago Bottlers of 
Carbonated Beverages, and they, likewise, upheld Buck- 
halter’s discharge.

In August 1978, Buckhalter filed a charge with the 
Illinois Fair Employment Practice Commission (“FEPC” ), 
alleging that Pepsi-Cola had engaged in race discrimination 
because it reinstated Ault, a white employee, but did not 
reinstate Buckhalter, a black employee. The FEPC con-



A187

ducted an investigation into the discharge incident and 
in March 1.979, found a lack of substantial evidence to 
support Buckhalter’s claim. Buckhalter requested that 
the FEPC reconsider its decision and on May 29, 1979, 
the FEPC reversed its prior determination and issued a 
complaint of race discrimination in violation of section 
3(a) of the Illinois Fair Employment Practices Act, 111. 
Rev. Stat. ch. 48, 853 (1978), which provided in pertinent
part that:

“It is an unfair employment practice: (a) For any
employer because of the race, color, religion, national 
origin or ancestry of an individual to refuse to hire, 
to segregate, or otherwise to discriminate against such 
individual with respect to hire, selection and training 
for apprenticeship in any trade or craft, tenure, terms 
or conditions of employment. . . .’n

In accord with the provisions of Illinois law, the FEPC 
assigned Buckhalter’s race discrimination complaint to 
Chief Administrative Law Judge Patricia Patton, who con­
ducted an adjudicatory hearing of four days in length, in 
March 1980. Buckhalter and Pepsi-Cola, who were each 
represented by counsel, engaged in extensive pre-hearing 
discovery and submitted exhaustive legal memoranda in 
support of their respective positions. At the hearing, the 
parties examined and cross-examined witnesses in accord 
with the applicable Illinois Rules of Evidence. The parties 
introduced some ninety exhibits and documents including 
statistical data of the patterns and racial breakdowns of 
Pepsi-Cola’s employee discharges. In addition, the parties 
made opening and closing statements to the Administra-

1. In July 1980, the Illinois legislature repealed the Fair 
Employment Practices Act, 111. Rev. Stat. ch. 48, § 851 et seq., 
replacing it with the Illinois Human Rights Act, 111. Rev. Stat. 
ch. 68, 1 1-101 (a) et seq. (1983).



A188

tive Law Judge (“ALJ” ) and argued numerous evidentiary 
issues. At the close of the four-day adversarial proceeding, 
the testimony was compiled in five volumes of transcripts 
totaling 680 pages in length.

In July 1980, the Illinois legislature replaced the FEPC 
with the Illinois Human Rights Commission (“ Commis­
sion” or “HRC” ). See 111. Rev. Stat. ch. 68, 1-101 et seq.
(1983). The investigatory and adjudicatory powers of the 
HRC are identical to those of the FEPC but under the new 
law, the Illinois Department of Human Rights ( “Depart­
ment” ) conducts all investigations and the Commission con­
ducts all adjudicatory hearings. The Illinois law pro­
vides that the Department of Human Rights is “ [t] o issue, 
receive, investigate, conciliate, settle, and dismiss charges 
. . . 111. Rev. Stat. ch. 68, H 7-101 (B). According to the
law, a complainant may file a written charge with the 
Department within 180 days after the occurrence of an 
alleged civil rights violation. The Department notifies 
the respondent of the filing of the written charge within 
ten days and subsequently conducts an investigation of the 
alleged discriminatory practice. If the Department de­
termines that substantial evidence of a civil rights violation 
exists, it initially attempts to remedy the situation through 
a conciliation conference with the respondent. If no agree­
ment can be reached, the Department files a complaint with 
the HRC. See 111. Rev. Stat. ch. 68, fl 7-102 (F).

The HRC is a body composed of nine members, ap­
pointed by the Governor of Illinois, that is authorized “ to 
hear and decide by majority vote requests for review 
and complaints filed . . . 111. Rev. Stat. ch. 38, H 8-102.
Within five days after a complaint is filed by the Depart­
ment, the HRC serves a copy of the complaint upon the 
respondent and notifies the parties of a scheduled adjudica­
tory hearing. The complainant and respondent may appear



A189

at the hearing with counsel to examine and cross-examine 
witnesses. The parties are afforded compulsory process 
“ to compel the attendance of a witness or to require the 
production for examination of any relevant books, records 
or documents whatsoever.” 111. Rev. Stat. ch. 68, 8-
104(C). The testimony taken at the hearing must be un­
der oath or affirmation and a transcript of the entire pro­
ceeding must be compiled and filed with the HRC. More­
over the testimony elicited at the hearing “ is subject to 
the same rules of evidence that apply in courts of [the State 
of Illinois] in civil cases.” 111. Rev. Stat. ch. 68, 8-
106(E). The ALJ issues written findings of fact, reviews 
the evidence presented, and recommends that the Com­
mission either affirm, modify, or dismiss the claim of em­
ployment discrimination. The ALJ submits the findings 
of fact and recommendations to a three-member panel of 
the HRC which considers the evidence along with the 
oral argument presentations of the complainant and re­
spondent. The HRC may then “adopt, modify or reverse 
in whole or in part the findings and recommendations of 
the hearing officer.” 111. Rev. Stat. ch. 68, 8-107 (E) (1).
The law of Illinois requires that the HRC adopt the ALJ’s 
findings of fact unless they are “contrary to the manifest 
weight of the evidence.” 111. Rev. Stat. ch. 68, 8-107
(E) (2). The HRC issues a written order and decision that 
is published in the Illinois Human Rights Commission Re­
porter “ to assure a consistent source of precedent.” 111. 
Rev. Stat. ch. 68, [[ 8-110. If either the complainant or 
respondent wants to contest the HRC decision, they may 
file an application for rehearing and if granted the case 
is reheard by the entire nine-member Commission. More­
over, the parties are at all times entitled to appeal the 
HRC decision and obtain additional judicial review in the 
Illinois Circuit Court system pursuant to the Illinois Ad­
ministrative Review Act. See 111. Rev. Stat. ch. 110, fl 3-



A190

101 et seq. On appeal, the Illinois Circuit Court’s standard 
of review is that “ the Commission’s findings of fact shall 
be sustained unless the court determines that such find­
ings are contrary to the manifest weight of the evidence.” 
111. Rev. Stat. ch. 68, H 8-111 (A ) (2).

In March 1982 the ALJ issued her findings of fact and 
conclusions of law that were published, in compliance with 
Illinois law, in the Illinois Human Rights Commission 
Reporter. See In re Buckhalter, 7 111. H.R.C. Rep. at 102- 
15. The ALJ acknowledged that she conducted “a rather 
lengthy hearing in this matter” and that “despite all of 
complainant’s detailed testimony on the events of the night 
in question, I have no reason to believe that Robert Buck- 
halter’s discharge came about as a result of an indiscrim­
inate imposition of discipline upon black employees.” Id. 
at 108-09. In a detailed legal analysis of Buckhalter’s 
claim, the ALJ initially recited that under the law of 
Illinois, a prima facie case of race discrimination “may 
be established by Complainant’s showing that (1) he be­
longs to a racial minority, (2) that he was treated in a 
particular way by Respondent and (3) that similarly sit­
uated whites were not treated in the same manner.” 
Id. at 109 (quoting L.Q. Hampton, and National Baking 
Co., 3 111. F.E.P. Rep. 40, 42 (1976)). The respondent 
must then “ come forth with a legitimate non-discriminatory 
reason for the difference in treatment . . . .” Id. at 110. 
The ALJ ruled that Pepsi-Cola had established a legiti­
mate, non-discriminatory reason “primarily because of the 
treatment afforded Daniel Lynch, a white employee dis­
charged on Rule IV-11, grounds 2 days after [Buckhalter].” 
Id. According to the ALJ, “ I find it quite difficult to in­
fer that the difference in treatment between Robert Buck­
halter and James Ault was based upon race when I am 
faced with the fact that Daniel Lynch, a white man, re-



A191

ceived the same treatment as Robert Buckhalter . . .
Id. at 111. Buckhalter attempted to establish that Pepsi­
Cola’s legitimate, non-discriminatory reason for the dis­
charge was merely pretextual by introducing statistical 
data of the patterns and racial breakdown of Pepsi-Cola’s 
employee discharges. Pepi-Cola countered with its own 
statistical data and the judge ruled that “ [t]he comparative 
data relating to the . . . decisions to discharge both white 
and black employees at the plant in question is too in­
consistent to be of probative value.” Id. at 108. Thus, 
the ALJ concluded that Buckhalter’s evidence was insuf­
ficient “to show respondent’s given reasons to be pretext­
ual.” Id. at 114. According to the ALJ, “ I have no other 
basis than the complainant’s opinion upon which to con­
clude that the decision was made on the basis of race.” Id. 
at 113. As a result, the ALJ held that Pepsi-Cola “was 
not guilty of disparate treatment on the grounds of race 
when it refused to reverse its decision to discharge Robert 
Buckhalter, and respondent therefore, did not act in vio­
lation of Section 3(a) of the [Fair Employment Practices] 
Act in refusing to do so.” Id. at 107.

In November 1982, a three-member panel of the 
Commission affirmed the ALJ’s decision on the basis that 
“ the facts contained in the administrative record are not 
against the manifest weight of the evidence. . . Id. at 
98. The Commission ruled that:

“ [t]he evidence concerning the treatment of Lynch 
was particularly significant because his discharge oc­
curred in circumstances virtually identical to those 
involving the complainant. Both Lynch and the 
complainant were observed drinking on Company 
property by respondent’s Security Manager. Both 
were fired for violating the same company rule. Both 
discharges were upheld after separate grievance



A192

hearings. Complainant and Lynch were thus sim­
ilarly situated. The case involving Mr. Ault, on the 
otherhand [sic], was quite different from the situ­
ations involving complainant and Lynch and the 
Administrative Law Judge was correct in recognizing 
this dissimilarity.”

Id. The Commission further reasoned that Pepsi-Cola 
“had a valid non-discriminatory reason—doubt as to the 
sufficiency of its case against Ault—for reinstating Ault 
but not complainant or Lynch.” Id. at 99. In response to 
Buckhalter’s claim that he was denied an opportunity to 
take depositions, the Commission ruled that “ [w ]e do not 
believe that the Chief Administrative Law Judge abused 
her discretion in denying leave to take depositions as 
there were other means available to complainant to effec­
tuate discovery.” Id. Thus, the Commission ordered that 
“the complaint in this matter be dismissed.” Id. at 101.

Following the HRC decision, Buckhalter requested a 
right-to-sue letter from the Equal Employment Opportu­
nity Commission ( “EEOC” ), rather than obtaining judi­
cial review of the decision in the Circuit Court of Cook 
County pursuant to the Illinois Administrative Review 
Act. Buckhalter’s legal counsel sent a letter to Pepsi-Cola 
stating that “ in light of the United States Supreme Court 
decision in Kremer v. Chemical Construction Corporation, 
[456 U.S. 461 (1982) ( “Kremer” ) ] ,  Complainant will 
pursue his remedies under Title VII of the Civil Rights 
Act of 1964. . . .” Buckhalter relied upon the Supreme 
Court’s language in footnote 7 of the Kremer opinion that, 
“ [s]ince it is settled that decisions by the EEOC do not 
preclude a trial de novo in federal court, it is clear that 
unreviewed administrative determinations by state 
agencies also should not preclude such review even if 
such a decision were to be afforded preclusive effect in a



A193

State’s own court.” 456 U.S. at 470 n.7. The EEOC issued 
a right-to-sue letter on March 7, 1983, and a month-and- 
a-half later, on May 22, 1983, Buckhalter filed a separate 
lawsuit in Federal court alleging race discrimination in 
violation of Title VII, 42 U.S.C. § 2000-e2(a), and 42 U.S.C. 
§ 1981. Buckhalter alleged the same underlying facts and 
circumstances that he had previously presented, unsuc­
cessfully, to the Illinois Human Rights Commission, in an 
attempt to support his claim that “PEPSI-COLA GEN­
ERAL BOTTLERS, INC., intentionally discriminated 
against Plaintiff on the basis of his race and color, black, 
with respect to the conditions and privileges of his em­
ployment and by discharging plaintiff from employment 
and not reinstating plaintiff. . . .” Pepsi-Cola responded 
to Buckhalter’s complaint by filing a motion for summary 
judgment, claiming that Buckhalter had an opportunity 
to fully litigate his claim before the HRC and the Illinois 
state courts, and was thus barred from relitigating the 
same claim in Federal court under the principle of res 
judicata. Buckhalter argued that under footnote 7 of the 
Kremer opinion he was entitled to a de novo review of his 
claim in Federal court because the HRC decision con­
stituted an unreviewed administrative determination by 
a state agency.

The district court ruled that “ the footnote [in 
Kremer] must be read as applying only to those adminis­
trative decisions which are investigatory or otherwise 
purely administrative in nature and not to determinations 
in which the administrative agency was empowered to 
and indeed acted in a judicial capacity.” Buckhalter v. 
Pepsi-Cola Gen. Bottlers, 590 F. Supp. 1146, 1149 (N.D. 
111. 1984). The court concluded that because “ the HRC 
acted in its judicial capacity” and Buckhalter “was af­
forded sufficient due process in the litigation of his ad-



A194

ministrative claim,” the Title VII claim was barred by res 
judicata. Id. at 1150. The court further reasoned that 
“because there is ‘no reason to distinguish civil rights 
actions brought under section [] 1981 . . . from suits
brought under Title VII for purposes of applying res 
judicata’ ”  Buckhalter’s section 1981 claim was also barred. 
Id. (quoting Lee v. City of Peoria, 685 F.2d 198, 199 (7th 
Cir. 1982). Thus, the district court granted Pepsi-Cola’s 
motion for summary judgment. On appeal, Buckhalter 
claims that the district court judge failed to adhere to 
the Supreme Court’s direction in footnote 7 of the Kremer 
decision to allow a trial de novo in Federal court for “un­
reviewed administrative determinations by state agencies. 
. . .” 456 U.S. at 470.

n
We begin our analysis with a review of the Supreme 

Court’s decision in Kremer, where the plaintiff, Reuben 
Kremer, alleged that his employer, Chemical Construction 
Corp., discharged and refused to rehire him due to his 
national origin and Jewish faith. Kremer filed a charge of 
national origin discrimination with the EEOC, which re­
ferred the claim to the New York State Division of 
Human Rights (“NYHRD” ).2 Following a thorough in­
vestigation of Kremer’s complaint, the NYHRD concluded 
that the evidence failed to establish probable cause to 
believe that the employer engaged in national origin dis­
crimination. Kremer appealed to the NYHRD Appeals 
Board which affirmed the agency’s investigative determi­
nation as “not arbitrary, capricious or an abuse of dis­

2. The NYHRD is the state agency responsible for enforcing 
the civil rights laws of New York, prohibiting employment dis­
crimination. See N.Y. Exec. Law §§ 295(6) (b ) , 296(1) (a) (Mc­
Kinney 1982).



A195

cretion.” Kremer, 456 U.S. at 464. Pursuant to New York 
law, Kremer filed a petition with the Appellate Division of 
the Supreme Court of New York to review the Appeals 
Board decision and, at the same time, he filed his charge of 
employment discrimination a second time with the EEOC. 
The New York state court unanimously “ confirmed” the 
Appeals Board decision and, in the separate Federal ac­
tion, the EEOC ruled that the record was insufficient to 
establish reasonable cause to believe that Kremer’s em­
ployer engaged in national origin discrimination. Never­
theless, the EEOC issued a routine right-to-sue letter and 
Kremer filed a Title VII employment discrimination law­
suit in the United States District Court for the Southern 
District of New York.

The district court granted the employer’s motion to 
dismiss the Title VII claim on the basis that “res judicata 
would bar a Title VII claim where the plaintiff had pre­
viously sought state court review on the same question 
presented to the federal courts.” Kremer v. Chemical 
Const. Corp,, 477 F. Supp. 587, 590 (S.D.N.Y. 1979). The 
Second Circuit affirmed the dismissal of Kremer’s Title 
VII claim, likewise ruling that Kremer was precluded 
from relitigating his claim of employment discrimination 
in Federal court under the doctrine of res judicata. See 
Kremer v. Chemical Const. Corp., 623 F.2d 786, 788 (2d 
Cir. 1980). The narrow issue before the United States 
Supreme Court was:

“whether a federal court in a Title VII case should 
give preclusive effect to a decision of a state court 
upholding a state administrative agency’s rejection of 
an employment discrimination claim as meritless 
when the state court’s decision would be res judicata 
in the State’s own courts.”



A196

Kremer, 456 U.S. at 463. The Court began its analysis by 
noting that 28 U.S.C. § 1738® “requires federal courts to give 
the same preclusive effect to state court judgments that 
those judgments would be given in the courts of the State 
from which the judgments emerged.” Id. at 466. The 
Supreme Court ruled that the judgment of the Appellate 
Division of the New York Supreme Court, confirming the 
NYHRD Appeals Board decision, clearly precluded Kremer 
from bringing a separate employment discrimination law­
suit in the New York state court system. The Supreme 
Court thus reasoned that “ [b ]y  its terms . . .  § 1738 would 
appear to preclude Kremer from relitigating the same 
question in federal court.” Id. at 467.

Despite the obvious applicability of section 1738, 
Kremer argued “ [fjirst . . . that in Title VII cases Con­
gress intended that federal courts be relieved of their 
usual obligation to grant finality to state court decisions 
[and] . . . [s]econd . . . that the New York administrative 
and judicial proceedings in this case were so deficient that 
they are not entitled to preclusive effect in federal courts. 
. . .” Id. The Supreme Court dismissed Kremer’s first 
contention reasoning that “ [njothing in the legislative 
history of the 1964 Act suggests that Congress considered 
it necessary or desirable to provide an absolute right to 
relitigate in federal court an issue resolved by a state 
court.” Id. at 473. The Court added that “ [s]imilar views 
were expressed in 1972 when Congress reconsidered 
whether to give the EEOC adjudicatory and enforcement 
powers.” Id. at 474. The Supreme Court thus concluded 
that: 3

3. 28 U.S.C. § 1738 (1982) provides, in pertinent part, that:
“ [t]he . . . judicial proceedings of any court of any such 
State . . . shall have the same full faith and credits in every 
court within the United States and its Territories and Posses­
sions as they have by law or usage in the courts of any such 
State, Territory or Possession from which they are taken.”



A197

“ [i]t is sufficiently clear that Congress, both in 
1964 and 1972, though wary of assuming the adequacy 
of state employment discrimination remedies, did not 
intend to supplant such laws. We conclude that 
neither statutory language nor the congressional de­
bates suffice to repeal § 1738’s longstanding directive 
to federal courts.”

Id. at 476. In response to Kremer’s second contention, the 
Court stated that “ the judicially created doctrine of col­
lateral estoppel does not apply when the party against 
whom the earlier decision is asserted did not have a ‘full 
and fair opportunity’ to litigate the claim or issue.” Id. at 
480-81. The Court noted, however, that under New York 
law the NYHRD is to conduct an investigation and deter­
mine whether or not there is probable cause to believe 
that employment discrimination, in fact, exists. In New 
York, “ |b]efore this determination of probable cause is 
made, the claimant is entitled to a ‘full opportunity to pre­
sent on the record, though informally, his charges against 
his employer or other respondent, including the right to 
submit all exhibits which he wishes to present and testi­
mony of witnesses in addition to his own testimony.’ ” Id. 
at 483 (quoting State Div. of Human Rights v. New York 
State Drug Abuse Comm’n, 59 A.D.2d 332, 336, 399 N.Y.S. 
2d 541, 544 (1977)). In addition, the complainant is 
entitled to have an attorney present, request that the 
NYHRD issue subpoenaes, and rebut evidence submitted by 
the respondent. If the NYHRD determines that probable 
cause exists to support the charge of employment dis­
crimination, the complainant is entitled to a public hear­
ing on the merits of his claim. The Supreme Court further 
noted that “judicial review in the Appellate Division is 
available to assure that a claimant is not denied any of the 
procedural rights to which he was entitled and that the



A198

NYHRD’s determination was not arbitrary and capri­
cious.” Id. at 484. In view of this “panoply of procedures,” 
the court concluded that “Kremer received all the process 
that was constitutionally required in rejecting his claim 
that he had been discriminatorily discharged . . . .” Id. at 
483-84. Thus, the Supreme Court affirmed the dismissal 
of Kremer’s Title VII claim:

“ [bjecause there is no ‘affirmative showing’ of a ‘clear 
and manifest’ legislative purpose in Title VII to deny 
res judicata or collateral estoppel effect to a state 
court judgment affirming that a claim of employment 
discrimination is unproved, and because the proce­
dures provided in New York for the determination of 
such claims offer a full and fair opportunity to litigate 
the merits . . . .”

Id. at 485.

In Kremer, the plaintiff appealed the decision of the 
NYHRD Appeals Board to the New York state court and 
received a state court judgment on his claim of employ­
ment discrimination. The Supreme Court held that the 
Federal court was required to give preclusive effect to the 
judgment of the New York state court because 28 U.S.C. 
§ 1738 “requires federal courts to give the same preclusive 
effect to state court judgments that those judgments would 
be given in the courts of the State from which the 
judgments emerged.” Id. at 486 (emphasis added). Ac­
cording to the Court, because there was “a state court 
judgment affirming that a claim of employment discrim­
ination is unproved,” the doctrine of res judicata barred 
Kremer’s Title VII claim in Federal court. Id. at 485 
(emphasis added). In contrast to the facts in Kremer, 
Buckhalter did not receive a state court judgment nor any 
judicial review of his claim by an Illinois state court and 
thus, by its express terms, section 1738 does not apply in



A199

the present case. See, e.g., McDonald v. City of West 
Branch, Mich., 104 S. Ct. 1799, 1802 (1984) (arbitration is 
not a state court judicial proceeding and thus section 1738 
does not apply to arbitration awards).4 We hasten to note 
however, that the inapplicability of section 1738 does not 
end our res judicata analysis. In footnote 26 of the Kremer 
opinion the Supreme Court acknowledged the doctrine of 
“administrative res judicata,”  stating that “ so long as op­
posing parties had an adequate opportunity to litigate 
disputed issues of fact, res judicata is properly applied to 
decisions of an administrative agency acting in a ‘judicial 
capacity.’ ” 456 U.S. at 485 n.26 (citing United States v. 
Utah Construction & Mining Co., 384 U.S. 394 (1966) 
(“ Utah Construction” ) ) .  In Kremer, the NYHRD simply

4. We note that there is support for the proposition that 
the decision of a state administrative agency, such as the Illinois 
Human Rights Commission, acting in a judicial rather than in­
vestigatory capacity, is a judicial proceeding of a state court for 
purposes of 28 U.S.C. § 1738. See, Jackson, Matheson & Piskorski, 
The Proper Role of Res Judicata and Collateral Estoppel in Title 
VII Suits, 79 Mich. L.R. 1485, 1521 (1981). We decline to expand 
section 1738 to include adjudicatory hearings of a state admin­
istrative agency, but we do realize that under Illinois law, “ res 
judicata . . . affixes to administrative decisions that are judicial
in nature.” Pedigo v. Johnson, ....... 111. App.......... , ....... , 474
N.E.2d 430, 432 (1985) . In Illinois, “decisions of an administrative 
agency can have res judicata effect in a proper case. Generally, 
this will be where the determinations are made for a purpose 
similar to those of a court and in proceedings which are ‘adjudi­
catory’, ‘judicial’ , or ‘quasi judicial’.” Godare v. Sterling Steel 
Casting Co., 103 111. App.3d 46, 51, 430 N.E.2d 620, 623 (1981). 
Indeed, in Hughey v. Industrial Com’n, 76 111. 2d 577, 394 N.E.2d 
1164 (1979), the Illinois Supreme Court held that the principle 
of res judicata precluded an employee, who failed to appeal the 
denial of workmen’s compensation benefits by the Illinois In­
dustrial Commission, from relitigating a claim for “ the same 
expenses and disability for which recovery was initially sought.” 
76 111. 2d at 580, 394 N.E.2d at 1165. Thus, applying the relevant 
case law of Illinois, it is clear that the final, unappealed decision 
of the HRC, acting in a judicial capacity, would preclude Buck- 
halter from relitigating his claim of race discrimination against 
Pepsi-Cola in Illinois state court. As a result, if section 1738 
did apply in the present case, the doctrine of res judicata would 
bar Buckhalter from relitigating his claim of race disei'imination 
in Federal court.



A200

investigated Kremer’s claim and determined that the 
evidence failed to establish probable cause to believe that 
the employer had engaged in national origin dis­
crimination. Because the NYHRD found a lack of prob­
able cause at the initial step of administrative review, 
the agency did not proceed to the second step of review 
and conduct an adjudicatory hearing on the merits of 
Kremer’s national origin race discrimination claim. Thus, 
the Supreme Court never reached the doctrine of “ad­
ministrative res judicata ”  which applies only when the 
administrative agency acts in a judicial capacity. In the 
present case, the Illinois administrative agency investi­
gated Buckhalter’s discrimination claim, found substantial 
evidence to support the claim, and then conducted an ad­
judicatory hearing of four days in length to determine 
the merits of Buckhalter’s claim. In view of the fact that 
Buckhalter received an adjudicatory hearing before the 
HRC, we must determine whether the well-recognized doc­
trine of “administrative res judicata,”  alluded to by the 
Supreme Court in footnote 26 of the Kremer opinion, applies 
in the present case to preclude relitigation of Buckhalter’s 
race discrimination claim in Federal court.

In Utah Construction, the Supreme Court explained 
that “ [w]hen an administrative agency is acting in a ju­
dicial capacity and resolves disputed issues of fact properly 
before it which the parties have had an adequate oppor­
tunity to litigate, the courts have not hesitated to apply 
res judicata . . . .” 384 U.S. at 422. The Supreme Court 
held that the doctrine of “ administrative res judicata”  
precluded relitigation in Federal court of a claim pre­
sented to the Board of Contract Appeals, acting in a judicial 
capacity because “both parties had a full and fair oppor­
tunity to argue their version of the facts and an opportunity 
to seek court review of any adverse findings.” Id. Since



A201

the Supreme Court’s seminal decision in Utah Construc­
tion, courts have consistently realized:

“ [W]hen an agency conducts a trial-type hear­
ing, makes findings, and applies the law, the reasons 
for treating its decision as res judicata are the same 
as the reasons for applying res judicata to a decision 
of a court that has used the same procedure . . . . 
[R]es judicata applies when what the agency does 
resembles what a trial court does.”

4 K. Davis, Administrative Law Treatise § 21:3, at 51-52 
(2d ed. 1983). Indeed, Restatement (Second) of Judg­
ments § 83 (1982) provides that:

“ (1) . . .  a valid and final adjudicative determination 
by an administrative tribunal has the same effects 
under the rules of res judicata, subject to the same 
exceptions and qualifications, as a judgment of a 
court.

(2) An adjudicative determination by an adminis­
trative tribunal is conclusive under the rules of res 
judicata only insofar as the proceeding resulting in 
the determination entailed the essential elements of 
adjudication. . . .”

According to the Restatement (Second) of Judgments, 
the “ essential elements of adjudication” include adequate 
notice; the right of parties to present evidence on their 
own behalf and rebut evidence presented by the opposi­
tion; a formulation of issues of law and fact; a final 
decision; and the procedural elements necessary to con­
clusively determine the issue in question. The rationale 
underlying the doctrine of “administrative res judicata”  
is that:



A202

“ [wjhere an administrative agency is engaged in 
deciding specific legal claims or issues through a 
procedure substantially similar to those employed by 
courts, the agency is in substance engaged in adjudi­
cation. Decisional processes using procedures whose 
formality approximates those of courts may properly 
be accorded the conclusiveness that attaches to judi­
cial judgments. Correlatively, the social importance 
of stability in the results of such decisions corresponds 
to the importance of stability in judicial judgments. 
The rules of res judicata thus generally have appli­
cation not only by courts with respect to adminis­
trative adjudications but also by agencies with respect 
to their own adjudications.”

Restatement (Second) of Judgments § 83 comment b, at 
268.

This court has, on numerous occasions, recognized the 
doctrine of “ administrative res judicata.”  For example, 
in Patzer v. Board of Regents, Nos. 84-1267, 84-1411, slip 
op. at 9 & n.5 (7th Cir. June 4, 1985) we observed “the 
generally accepted rule” that “ [fjinal adjudicative deci­
sions of administrative agencies are often res judicata as 
to the claims decided.” Similarly, in EZ Loader Boat 
Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d 375 (7th Cir. 
1984), we acknowledged that:

“where an agency acts in a judicial capacity and 
resolves disputes properly before it, the agency’s find­
ings may be given preclusive effect as long as the 
procedures utilized by the agency do not prevent the 
party against whom estoppel will be applied from 
having a fair opportunity to present its case.”

746 F.2d at 377-78. Again in Lee v. City of Peoria, 685 
F.2d 196 (7th Cir. 1982), we stated that “issues of fact



A203

determined by an administrative agency acting in a ju­
dicial capacity may collaterally estop future relitigation 
of administratively determined issues.” 685 F.2d at 198. 
So too, in Bowen v. United States, 570 F.2d 1311 (7th Cir. 
1978), we recognized that “ [w]ith the Utah Contraction 
decision leading the way, the courts have continued to 
extend the doctrine of res judicata to the decisions of 
administrative agencies in appropriate cases.” 570 F.2d at 
1321. In the present case, the HRC conducted a thorough 
investigation of Buckhalter’s race discrimination claim 
and concluded that substantial evidence existed to support 
the charge of employment discrimination. As a result, 
Buckhalter was entitled to fully adjudicate his claim 
against Pepsi-Cola in an adversarial proceeding before an 
ALJ. The initial issue before this court, under the doctrine 
of “administrative res judicata,”  is whether the HRC was 
acting in a judicial capacity when it considered and ruled 
upon Buckhalter’s claim of race discrimination.

The record reveals that once the HRC received 
Buckhalter’s claim of race discrimination, it appointed 
Chief Administrative Law Judge Patricia Patton to pre­
side over the matter. The parties engaged in extensive 
pre-trial discovery and in March 1980, the ALJ conducted 
an adjudicatory hearing of four days duration. Buckhalter 
and Pepsi-Cola, each represented by counsel throughout 
the proceeding, filed exhaustive memoranda of law in sup­
port of their respective positions and at the hearing each 
party examined and cross-examined witnesses in accord 
with the applicable Illinois Rules of Evidence. In addi­
tion, the parties introduced some ninety exhibits and docu­
ments, including statistical data of the patterns and racial 
breakdowns of Pepsi-Cola’s employee discharges. The 
parties made opening and closing statements to the ALJ 
and argued numerous evidentiary issues. At the close of



A204

the four-day adversarial proceeding, the testimony was 
compiled in five volumes of transcripts totaling 680 pages 
in length. The ALJ thoroughly reviewed the record and 
in March 1982, issued a detailed, fourteen page opinion 
that was published in the Illinois Human Rights Commis­
sion Reporter, pursuant to Illinois law. See In re Buck- 
halter, 7 111. H.R.C. Rep. at 102. The opinion contained 
thorough findings of fact, conclusions of law, and a cogent 
legal analysis applying the relevant facts to the Illinois law 
of employment discrimination. In evaluating Buckhalter’s 
claim of race discrimination, the ALJ used the burden of 
proof framework set forth by the Supreme Court in Mc­
Donnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) 
and Texas Department of Community Affairs v. Burdine, 
450 U.S. 248, 252-56 (1981). This burden of proof frame­
work, which is the same one used in Federal court to eval­
uate an employment discrimination claim under Title VII, 
requires that (1) the plaintiff establish a prima facie case 
of employment discrimination; (2) the defendant articulate 
a legitimate, non-discriminatory reason; and (3) the plain­
tiff establish that the proffered reason is simply a pre­
text. The ALJ ruled that Pepsi-Cola had established a 
legitimate, non-discriminatory reason for discharging Buck- 
halter and that Buckhalter had failed to prove that the 
reason was merely pretextual. A three-member panel of 
the Commission issued a second published opinion affirm­
ing the ALJ’s findings of fact as “not against the manifest 
weight of the evidence” and affirming the ALJ’s conclu­
sions of law as supported by the evidence. In re Buck­
halter, 7 111. H.R.C. Rep. at 98.

In view of the fact that the HRC judicial proceeding 
was conducted just as a trial in Illinois state court, there 
can be little doubt that the HRC was acting in a judicial 
capacity. This court held, in EZ Loader Boat Trailers, Inc.



A205

v. Cox Trailer, Inc., that the Trademark Trial and Appeal 
Board was acting in a judicial capacity because there was 
“an adversary proceeding. Both parties . . . were repre­
sented by attorneys before the Board; both presented 
evidence and submitted briefs.” 746 F.2d at 378. In the 
present case, Buckhalter and Pepsi-Cola were each repre­
sented by attorneys, engaged in pre-hearing discovery, 
filed memoranda of law in support of their respective 
positions, examined and cross-examined witnesses, in­
troduced exhibits, and argued numerous evidentiary 
issues throughout the adversarial proceeding. Moreover, 
the ALJ made extensive findings of fact and conclusions 
of law, properly applied the burden of proof framework 
for a claim of employment discrimination as set forth by 
the Supreme Court, and a three-member panel of the 
Commission affirmed the ALJ’s decision in a published 
opinion. We thus hold that the HRC acted in a judicial 
capacity in dismissing Buckhalter’s complaint on the basis 
that Pepsi-Cola established a legitimate, non-discriminatory 
reason for Buckhalter’s discharge and Buckhalter failed 
to prove the reason was a pretext.

In addition to the administrative agency acting in a 
judicial capacity, the parties must have a full and fair 
opportunity to litigate their case before the doctrine of 
“ administrative res judicata”  will bar relitigation of a 
claim in Federal court. The state administrative agency’s 
“ findings may be given preclusive effect as long as the 
procedures utilized by the agency do not prevent the party 
against whom estoppel will be applied from having a fair 
opportunity to present its case.” Id. at 377-78. In the 
present case, Buckhalter was represented by an attorney 
at all times during the pre-hearing discovery and the 
four-day adjudicatory hearing. In addition, Buckhalter 
was entitled to contest the ALJ’s findings of fact and con-



A206

elusions of law before a three-member panel of the HRC. 
The panel reviewed not only the merits of Buckhalter’s 
claim but also the procedural and evidentiary rulings made 
by the ALJ. Finally, Buekhalter was entitled to appeal 
the HRC decision to the Cook County Circuit Court pur­
suant to the Administrative Review Act of Illinois. In 
view of the thorough procedural and evidentiary safe­
guards afforded Buekhalter in the HRC adjudicatory hear­
ing, we hold that Buekhalter had a full and fair “oppor­
tunity to litigate” his claim of race discrimination. See, 
e.g., Unger v. Consolidated Foods Corp., 693 F.2d 703, 
705-06 (7th Cir. 1982), cert, denied, 460 U.S. 1102 (1983) 
(judicial proceedings of the Illinois FEPC satisfy due 
process requirements).

The final inquiry is whether the principles of res 
judicata apply in this case to preclude Buekhalter from 
relitigating his claim of race discrimination in Federal 
court. The law in this circuit is that res judicata applies 
when there is “ (1) a final judgment on the merits in an 
earlier action; (2) an identity of the cause of action in 
both the earlier and the later suit; and (3) an identity of 
parties or their privies in the two suits.” Lee v. City of 
Peoria, 685 F.2d at 199 (citing Nash County Board of 
Education v. Biltmore Co., 640 F.2d 484, 486 (4th Cir.), 
cert, denied, 454 U.S. 878 (1981) ). In the present case, 
Buekhalter clearly obtained a final judgment on the mer­
its of his race discrimination claim, as the ALJ found that 
“despite all of complainant’s detailed testimony on the 
events of the night in question, I have no reason to believe 
that Robert Buckhalter’s discharge came about as a result 
of an indiscriminate imposition of discipline upon black 
employees.” In re Buekhalter, 7 111. H.R.C. Rep. at 109. 
The ALJ ruled that Pepsi-Cola had established a legiti­
mate, non-discriminatory reason for discharging Buck-



A207

halter and that Buckhalter failed “ to show [Pepsi-Cola’s] 
given reasons to be pretextual.” Id. at 114. The HRC af­
firmed the ALJ’s decision on the basis that “ the facts con­
tained in the administrative record are not against the man­
ifest weight of the evidence. . . .” Id. at 98. According to 
the HRC, Pepsi-Cola “had a valid non-discriminatory 
reason—doubt as to the sufficiency of its case against 
Ault—for reinstating Ault but not complainant or Lynch.” 
Id. at 99. The fact that Buckhalter failed to appeal the 
HRC’s decision to the Circuit Court of Cook County 
does not affect the finality of the decision because 
an adverse decision “from which no appeal has been taken 
is res judicata and bars any future action on the same 
claim . . . .” Federated Department Stores, Inc. v. Moitie, 
452 U.S. 394, 399 n.4 (1981). See also C. Wright, A. Miller 
& E. Cooper, Federal Practice and Procedure § 4427, at 270 
(1981). Moreover, Buckhalter’s claim of race dis­
crimination in violation of Title VII and 42 U.S.C. § 1981 
is identical to the claim of race discrimination litigated 
before the HRC. The district court properly found that 
the Federal lawsuit and the HRC proceeding involved 
“ identical claims and issues.” Buckhalter v. Pepsi-Cola 
Gen. Bottlers, 590 F. Supp. at 1148. Accord Unger v. 
Consolidated Foods Corp., 693 F.2d at 705 ( “ the Illinois 
prohibition against discrimination in employment, 111. 
Rev. Stat .ch. 48, If 853, is at least as broad as that of Title 
VII” ). Indeed, the ALJ, just as a Federal court in a Title 
VII case, used the burden of proof framework set forth by 
the Supreme Court in McDonnell Douglas Corp. v. Green, 
411 U.S. at 802-03, and Texas Department of Community 
Affairs v. Burdine, 450 U.S. at 252-56, to analyze 
Buckhalter’s claim and rule that Pepsi-Cola established a 
legitimate, non-discriminatory reason for Buckhalter’s dis­
charge. Finally, the parties in the Federal lawsuit, Buck-



A208

halter and Pepsi-Cola, are the same parties who appeared 
in the HRC judicial proceeding.5 In view of this evi­
dence, and the fact that the HRC was clearly acting in 
a judicial capacity when it dismissed Buekhalter’s claim 
of race discrimination, we hold that under the doctrine 
of “administrative res judicata,”  as alluded to in footnote 
26 of the Kremer opinion, Buckhalter is barred from reliti­
gating his claim of race discrimination in Federal court. 
Accord, Zywicki v. Moxness Products, Inc., No. 82-C-1334, 
slip op. at 2-4 (E.D. Wis. March 28, 1985).

Despite the clear applicability of the doctrine of “ ad­
ministrative res judicata”  in the present case, Buckhalter 
argues that under the express language of footnote 7 of 
the Kremer opinion, all “unreviewed administrative de­
terminations by state agencies” are entitled to de novo 
review in Federal court. 456 U.S. at 470 n.7. According to 
Buckhalter, this language includes even those cases where 
the administrative agency has conducted an adjudicatory 
hearing on the merits of the employment discrimination 
claim. Buckhalter finds support for this overly broad inter­
pretation of footnote 7 in three recent district court opin­
ions, Reedy v. State of Fla., Dept, of Educ., 605 F. Supp. 
172 (N.D. Fla. 1985), Parker v. Danville Metal Stamping 
Co., 603 F. Supp. 182 (C.D. 111. 1985), and Jones v. Progress 
Lighting Corp., 595 F. Supp. 1031 (E.D. Pa. 1984). We be­
lieve that these cases misinterpret footnote 7 and fail to 
acknowledge the language in footnote 26 of the Kremer 
opinion that under the doctrine of “administrative res

5. Buckhalter added Roger Thomas Kiekhofer, the manager 
of Pepsi-Cola’s 51st Street plant, and Robert Friend, the In­
dustrial Relations Manager, as defendants in his section 1981 
claim. Though Kiekhofer and Friend were not parties to the 
HRC adjudicatory proceeding, Buckhalter’s claim of race discrim­
ination against them is precluded under the doctrine of defensive 
collateral estoppel. See Blonder-Tongue v. University Foundation, 
402 U.S. 313, 329 (1971); Lambert v. Conrad, 536 F,2d 1183, 1186 
(7th Cir. 1976).



A209

judicata,”  the decision of a state administrative agency 
acting in a judicial capacity is to be given res judicata ef­
fect. Moreover, these cases fail to make the critical dis­
tinction that in Kremer the NYHRD exercised only its in­
vestigative authority in determining whether or not there 
was probable cause to support Kremer’s discrimination 
claim. Because the NYHRD found a lack of probable cause 
to support Kremer’s claim at the initial step of the ad­
ministrative review process, the NYHRD did not conduct 
an adjudicatory hearing on the merits of Kremer’s na­
tional origin discrimination claim.

In footnote 7 of the Kremer opinion, the Supreme Court 
stated that “ [sjince it is settled that decisions by the EEOC 
do not preclude a trial de novo in federal court, it is clear 
that unreviewed administrative determinations by state 
agencies also should not preclude such review even if 
such a decision were to be afforded preclusive effect in 
a State’s own courts.” 456 U.S. at 470 n.7. The Court’s 
reference to the EEOC in footnote 7 is extremely helpful 
and enlightening as the law is clear that the EEOC’s sole 
function in employment discrimination cases is to “make 
an investigation thereof.” 42 U.S.C. § 2000e-5(b) (em­
phasis added). Following the investigation, if the EEOC 
determines that “ there is reasonable cause to believe that 
the charge [of discrimination] is true,” id., it attempts to 
conciliate the matter with the employer, and if unsuccess­
ful, it files a civil action “ in the appropriate United States 
district court,” 42 U.S.C. § 2000e-5(f) (1). The EEOC 
clearly has no authority to conduct an adjudicatory hearing, 
instead, if it determines after a complete investigation that 
there is reasonable cause in the record to establish em­
ployment discrimination, the EEOC files a complaint in 
Federal district court where the complainant is entitled to 
a trial on the merits. In stark contrast, in many states,



A210

such as Illinois, the state administrative agency conducts 
a thorough investigation, and if it concludes that there is 
substantial evidence of employment discrimination, the 
state administrative agency, acting in a judicial capacity, 
conducts an adjudicative hearing with all of the con­
comitant procedural and evidentiary safeguards. In 
footnote 7, the Supreme Court was clearly referring to 
the state administrative agency in its investigatory ca­
pacity as it analogized the state agency to the EEOC, a 
Federal agency that is authorized to act only in an investi­
gatory capacity. The import of footnote 7 is that neither 
an investigatory determination of the EEOC nor an in­
vestigatory determination of a state administrative agency 
precludes a trial de novo in Federal court. The Supreme 
Court made clear, however, in footnote 26 of the Kremer 
opinion, that when the state administrative agency acts 
in a judicial capacity, its ruling on the claim of employment 
discrimination is entitled to preclusive effect in the Federal 
court under the doctrine of “administrative res judicata

We add that our application of the “administrative res 
judicata”  doctrine in the present case is to be narrowly 
construed and used only in those situations where the 
state administrative agency, while acting in a judicial 
capacity, has reviewed the merits of the complainant’s 
employment discrimination claim, and has ruled that the 
evidence does not support such a claim. In those situations 
where the complainant prevails on his claim of discrim­
ination before the state administrative agency, he may 
be entitled to bring a subsequent Title VII suit in Federal 
court to supplement his state remedies. See, e.g., Patzer 
v. Board of Regents, Nos. 84-1267, 84-1411 slip op. at 10 
(7th Cir. June 4, 1985). Indeed, as the Supreme Court 
clearly recognized in New York Gaslight Club, Inc. v. Cary, 
447 U.S. 54 (1980) (“ Gaslight Club” ), in a Title VII action:



A211

“ [i]nitial resort to state and local remedies in man­
dated, and recourse to the federal forums is appropri­
ate only when the State does not provide prompt or 
complete relief.”

»  *  *

“Title VII explicitly leaves the States free, and indeed 
encourages them, to exercise their regulatory power 
over discriminatory employment practices. Title VII 
merely provides a supplemental right to sue in fed­
eral court if satisfactory relief is not obtained in state 
forums.”

447 U.S. at 65, 67. See also Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 48-49 (1974) ( “Title VII was designed to 
supplement, rather than supplant, existing laws and insti­
tutions relating to employment discrimination.” ). In 
Batiste v. Fumco Construction Corp.., 503 F.2d 447 (7th 
Cir. 1974), this court was faced with the very situation 
alluded to by the Supreme Court in Gaslight Club. The 
complainant prevailed on his employment discrimination 
claim before the state administrative agency and then 
filed a Title VII action to obtain a supplemental backpay 
award. This court held that “ the fact that final judgment 
was issued in the state proceedings does not bar this 
[supplemental] action nor deprive plaintiffs of their right 
to relief in federal court.” Batiste v. Furnco Construction 
Corp., 503 F.2d at 451. In the present case, however, 
the HRC, acting in its judicial capacity, determined that 
the evidence did not support Buckhalter’s claim of employ­
ment discrimination. Pursuant to footnote 26 of the Kremer 
opinion and the doctrine of “administrative res judicata,” 
the Federal courts are to give preclusive effect to this 
final adjudicatory determination of the Illinois state admin­
istrative agency. Accordingly, we agree with the district



A212

court and hold that the doctrine of “ administrative res 
judicata”  bars Buckhalter’s Title VII claim in Federal 
court. Moreover, in the present case there is “no reason 
to distinguish civil rights actions brought under section 
[ ] 1981 . . . from suits brought under Title VII for
purposes of applying res judicata,” and thus we hold the 
doctrine of “administrative res judicata”  also bars Buck­
halter’s section 1981 claim in Federal court. Lee v. City 
of Peoria, 685 F.2d at 199.

Ill

We affirm. 

A true Copy: 
Teste:

Clerk of the United States Court of 
Appeals for the Seventh Circuit



f