Shelby County, Tennessee v. David McGriff

09/21/2026 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON February 10, 2026 Session SHELBY COUNTY, TENNESSEE v. DAVID MCGRIFF Appeal from the Chancery Court for Shelby County No. CH-25-0320 JoeDae L. Jenkins, Chancellor ___________________________________ No. W2025-01041-COA-R3-CV ___________________________________ The Shelby County Civil Service Merit Board reversed the termination of the appellee’s employment with the Shelby County Sheriff’s Office. The trial court affirmed the decision to reinstate the appellee and ordered that he be paid as if he had returned to work on the date contemplated by the Merit Board. After reviewing the record, we conclude that the decision to reinstate the appellee was supported by substantial and material evidence and was neither arbitrary nor capricious. We therefore affirm the reinstatement. Because the order overturning the appellee’s termination did not contain an explicit return-to-work date, we vacate the trial court’s ruling that the appellee would be paid from a date certain, and remand the issue for consideration by the Merit Board. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Vacated in Part, and Remanded J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which W. NEAL MCBRAYER and CARMA DENNIS MCGEE, JJ., joined. Pamela Williams Kelly and Katherine L. Frazier, Memphis, Tennessee, for the appellant, Shelby County, Tennessee. Bryce W. Ashby, Memphis, Tennessee, for the appellee, David McGriff. OPINION I. FACTUAL AND PROCEDURAL BACKGROUND Appellee David McGriff (“McGriff”) was employed as a deputy sheriff with the Shelby County Sheriff’s Office (“SCSO”). On April 10, 2024, he was directed to participate in a random drug screening. McGriff’s urine sample tested positive for THC, leading to the collection of a hair sample, which also tested positive for cannabinoids, specifically carboxy-THC.1 These positive drug screenings, and McGriff’s alleged insubordination in failing to immediately obey the order to report for the testing, led the SCSO to charge him with the violation of multiple SCSO standard operating rules and regulations (“SORs”).2 After conducting an internal investigation, the SCSO terminated McGriff’s employment effective July 9, 2024. McGriff timely appealed his termination to the Shelby County Civil Service Merit Board (“the Board”), and an evidentiary hearing was held on November 7, 2024. McGriff testified that the positive test result did not arise from the use of any illegal drugs, but rather the off-duty consumption of legally purchased CBD gummies.3 The Board notified the parties of its decision to reverse the termination by letter on November 12, 2024. The letter stated the Board’s conclusion that the SCSO “did not meet the burden of proof in disciplining Mr. McGriff” and its decision to overturn the termination. The letter included certain provisions on McGriff’s return to work, including “Drug Treatment and Counseling class”; “No Back Pay”; and “Extensive Drug Testing[.]” The letter indicated that an “official order from the Board” was forthcoming. The Board’s decision was then memorialized in an order dated January 13, 2025. The order outlined the parties’ positions, the testimony presented by the witnesses, and the evidence entered into the record. Beyond this recitation of the evidence and the signatures of two members of the Board, the remainder of the Board’s order, in its entirety and without any alteration, stated the following: VIII Findings of Fact After the testimony presented, reviewing the exhibits, Mr. David McGriff had several disciplinary actions forms along with corrective actions that were presented to the board on behalf of Shelby County Sheriff’s Office, the Board finds the following facts:  The Petitioner requires to be extensively drug tested every 30 days for narcotics for 1 year. 1 “THC” stands for tetrahydrocannabinol. The nature of THC and carboxy-THC will be discussed in detail, infra. 2 McGriff was charged with violating SOR 101: Compliance with Regulations, to wit, Policy 325: Drug-free Workplace; SOR 104: Personal Conduct; SOR 111: Disobedience of an Order; and SOR 121: Narcotics. 3 “CBD” stands for cannabidiol. The nature of CBD and its relation to THC will also be discussed, infra. -2-   Any other policy violations within 6 months results in an immediate termination.  Mr. McGriff will receive no back pay. IX DECISION Based on the findings of fact and policies violated, the Board finds did not meet the burden of proof for “cause” in the termination of Mr. David McGriff. IT IS, THEREFORE, the unanimous decision of the Board to overturn the termination of Mr. David McGriff On behalf of the SCSO, Appellant Shelby County, Tennessee (“the County”) filed a timely petition for certiorari, writ of supersedes, and judicial review in the Shelby County Chancery Court (“the trial court”) on March 11, 2025. The County argued that the Board’s decision was “in excess of the statutory authority of the Board, made upon unlawful procedure, arbitrary, capricious, illegal, not based on material facts or on just cause, and [] in violation of the Shelby County Charter, Shelby County Code of Ordinances, and the policies and procedures of Shelby County, Tennessee[.]” The County provided a series of alternate requests in its prayer for relief. First, the County asked that the trial court reverse the Board’s decision to reinstate McGriff. If the reinstatement was affirmed, the County asked that the trial court uphold the Board’s decision not to award McGriff back pay. And if the reinstatement was affirmed and back pay was ordered, the County asked that the trial court remand the matter to the Board for the back pay calculation, “including, but not limited to, any offset for earnings earned by [] McGriff from the time of termination to a specified date ordered by the Board for [McGriff] to return to work.” The County further argued that a writ of supersedes was necessary to “maintain the status quo” and “maintain public safety” while the trial court conducted its review and that granting the writ would “benefit the public to ensure that [SCSO] policies and procedures are followed to protect the community” without impacting the services presently provided by the SCSO. McGriff opposed the County’s petition. He argued that the evidence in the record supported the Board’s conclusion that the SCSO had not met its burden to establish a violation of the charged SORs, and so the decision to reinstate his employment was neither arbitrary nor capricious. McGriff asked the trial court to order the SCSO to comply with the Board’s decision and return him to work. He also requested to be compensated for the time during which the SCSO failed to so comply. McGriff denied the necessity and propriety of a writ of supersedes. The trial court entered a fiat for the issuance of a writ of certiorari on March 17, 2025. After a hearing, the trial court denied the writ of supersedes by order of May 7, 2025. -3- The trial court found that the County did “not have a strong case to overturn the Board’s decision and that the likelihood of success [was] not high.” The trial court also found that the SCSO’s drug-free workplace policy was “out of step with current law and science” such that any harm caused by the inconsistent application of the policy did “not outweigh the other considerations that the [c]ourt must balance.” Following additional briefing and a hearing, the trial court affirmed the Board’s decision by order of June 16, 2025. The trial court explained that, between the testimony at the hearing, the Board’s deliberations, the November 2024 letter, and the January 2025 order, it could “see how the Board would make the decisions that it has made[.]” The trial court recognized that the record contained conflicting testimony both as to whether McGriff ingested an illegal substance or abused a legally obtained substance and as to whether McGriff disobeyed an order. Based on the inconclusive evidence, the trial court agreed that there was insufficient proof to establish a violation of the SCSO’s SORs that would justify termination. The trial court therefore concluded that the Board had substantial and material evidence to support its decision to reinstate McGriff’s employment and declined to substitute its judgment for that of the Board. As to McGriff’s request for back pay, the trial court concluded that the Board’s directive that he be reinstated on December 15, 2024 stood, and so McGriff “should be paid from that day forward [as] if he had actually returned to work.”4 The County filed a timely notice of appeal to this Court. II. ISSUES PRESENTED The County raises the following issues on appeal, taken directly from its brief: 1. Whether the Civil Service Merit Board’s decision that Shelby County did not meet its burden of proof for “cause” to terminate David McGriff was arbitrary and capricious and unsupported by substantial and material evidence in the record? 2. Whether the Civil Service Merit Board’s decision not to uphold the termination provision of Shelby County Drug Free Policy #325 was arbitrary and capricious and exercised an unwarranted exercise of discretion when the Board reversed the termination of David McGriff despite undisputed and substantial material evidence that Mr. McGriff failed two (2) drug tests while on duty as a Shelby County Deputy Sheriff? 3. Whether Shelby County Chancery Court correctly concluded that substantial material evidence supported the Civil Service Merit Board’s decision to 4 As will be discussed, infra, the County contests the trial court’s characterization of the return-to- work date as part of the Board’s order, as it was included in neither written document produced by the Board, only its transcribed deliberations. -4-  reverse the termination of David McGriff despite the absence of findings of fact or conclusions of law in the Board’s Order? 4. Whether the Shelby County Chancery Court exceeded its judicial review by establishing a return-to-work date that was not included in the Board’s Order and ordering backpay from a return-to-work date that was not included in the Board’s Order? III. STANDARD OF REVIEW Tennessee Code Annotated section 27-9-114(b)(1) provides that “[j]udicial review of decisions by civil service boards of a county or municipality which affects the employment status of a county or city civil service employee shall be in conformity with the judicial review standards under the Uniform Administrative Procedures Act [(“UAPA”)], § 4-5-322.” Among the various guidelines for the judicial review of administrative agency decisions included in section 4-5-322, subsection (h) sets out the scope of review: The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5)(A)(i) Except as provided in subdivision (h)(5)(B), unsupported by evidence that is both substantial and material in the light of the entire record; (ii) In determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact[.] Tenn. Code Ann. § 4-5-322(h) (exception contained in (h)(5)(b) omitted as not applicable). The trial court’s review is “narrow and deferential” to the agency decision, and this Court “applies the same limited standard of review as the trial court.” StarLink Logistics Inc. v. ACC, LLC, 494 S.W.3d 659, 668, 669 (Tenn. 2016). The standard of review “reflects the general principle that courts should defer to decisions of administrative agencies when they are acting within their area of specialized knowledge, experience, and -5- expertise.” Id. at 669. “Courts do not review questions of fact de novo and, therefore, do not second-guess the agency as to the weight of the evidence.” Id. (citation omitted). Additionally, “[i]ssues of credibility are for the trier of fact,” and “considerable deference” must be afforded to those factual findings based on the Board’s credibility determinations. Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256, 266 (Tenn. 2009) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). “Whether or not there is any material evidence to support the action of the agency is a question of law to be decided by the reviewing court upon an examination of the evidence introduced before the agency.” Watts v. Civ. Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980). Tennessee courts have provided significant guidance for determining whether an agency decision is arbitrary and capricious: A decision of an administrative agency is arbitrary or capricious when there is no substantial and material evidence supporting the decision. Pittman v. City of Memphis, 360 S.W.3d 382, 389 (Tenn. Ct. App. 2011); Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm’n., 876 S.W.2d 106, 110 (Tenn. Ct. App. 1993). The statute does not define “substantial and material evidence,” but it is less than a preponderance of the evidence, Wayne [County v. Tenn. Solid Waste Disposal Control Bd.], 756 S.W.2d [274,] 280 [(Tenn. Ct. App. 1988)] (citing Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966)), and more than a “scintilla or glimmer” of evidence, id. (citing Pace v. Garbage Disposal Dist., 54 Tenn. App. 263, 390 S.W.2d 461, 463 (1965)). A decision with evidentiary support can be arbitrary or capricious if it amounts to a clear error in judgment. City of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311, 316 (Tenn. 2007) (citing Jackson Mobilphone Co., 876 S.W.2d at 110). A decision is arbitrary or capricious if it “is not based on any course of reasoning or exercise of judgment, or . . . disregards the facts or circumstances of the case without some basis that would lead a reasonable person to reach the same conclusion.” Civil Serv. Comm’n, 216 S.W.3d at 316 (quoting Jackson Mobilphone Co., 876 S.W.2d at 111). StarLink Logistics, 494 S.W.3d at 669–70 (last alteration in original); see also Davis, 278 S.W.3d at 265 (“We may reject the Board’s decision only if a reasonable person would necessarily reach a different conclusion based on the evidence.” (citing Martin v. Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001))). IV. ANALYSIS A. -6-  We begin with the County’s argument that the trial court erred in affirming the Board’s decision because the Board failed to make sufficient findings of fact and conclusions of law in its January 2025 order. The County argues that meaningful judicial review is not possible because the Board did not provide adequate reasoning for its decision. According to the County, the proper remedy is to remand the matter back to the Board for entry of additional findings and conclusions. In making this argument, the County highlights that Tennessee Code Annotated section 4-5-314 requires an administrative body to include “conclusions of law, the policy reasons therefor, and findings of fact for all aspects of the order” in final decisions rendered in contested cases. But the County also correctly acknowledges that section 4-5-314 is wholly inapplicable to this case: while Tennessee Code Annotated section 27-9-114(a)(1) provides that “[c]ontested case hearings by civil service boards of a county or municipality which affect the employment status of a civil service employee shall be conducted in conformity with [UAPA] contested case procedures[,]” section 27-9-114(a)(2) expressly exempts “civil service boards of counties organized under a home rule charter form of government” from complying with the contested case procedures set out in the UAPA. See Davis, 278 S.W.3d at 263 (“Shelby County is a home rule jurisdiction, and as such, Tennessee Code Annotated Section 27-9-114(a)(2) exempts the Board from the UAPA’s contested case hearing procedures.”). Of course, we agree that the Board’s order is rather sparse. Although not compelled by section 4-5-314 to provide a detailed explanation for its decisions, the deference reviewing courts are to afford an agency’s factual findings would seem to encourage the Board to include greater insight into its reasoning within its orders. But we simply cannot hold the Board to a standard the legislature has seen fit to excuse it from. Still, the County relies on County of Shelby v. Tompkins, 241 S.W.3d 500 (Tenn. 2007) for the argument that “a reviewing court must have sufficient information regarding the agency action to determine whether that action comports with the law.” Id. at 504. In that case, the Board overturned the employer’s termination of the appellant, but the trial court reversed the Board’s decision and reinstated the employer’s decision to discharge the appellant. Id. at 502–03. For some reason, the Board’s final decision was not included in the administrative record provided to the trial court or on appeal to this Court, and the appellant raised concerns “about the impediment to judicial review posed by an incomplete administrative record.” Id. at 503. We noted that “the disputed issue under review is a narrow one of pure law, and there are no disputed material facts[,]” that neither party disputed what the Board decided or why it did so, and that the trial court “considered these factors in reviewing the case.” Id. at 504. Under these circumstances, we determined that the best course of action was simply to soldier on with our review, concluding that to remand the matter so that the order could be included in the record “would delay matters further without any corresponding benefit.” Id. So then, despite the limited scope of our review, even the total absence of the Board’s order from the record would not necessarily -7- prohibit judicial review. See also Davis, 278 S.W.3d at 260 n.16 (noting without discussion that the Board’s findings were not provided to the trial court or included in the record on appeal before reviewing the Board’s decision in full). Moreover, “[t]he sufficiency of an agency’s findings of fact must be measured against the nature of the controversy and the intensity of the factual dispute.” CF Indus. v. Tenn. Pub. Serv. Comm’n, 599 S.W.2d 536, 541 (Tenn. 1980) (involving an earlier version of the UAPA). Indeed, our supreme court has held that “[i]t is obvious that where there is no disputed issue of fact and the sole question before the agency is the proper conclusion to be drawn from the undisputed facts and the application of the correct legal rules, the record need not be burdened with detailed findings of fact.” Id. In this case, the majority of the facts are undisputed. For those remaining facts subject to conflicting evidence, the Board’s findings can be inferred from its decision. See Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595, 608 (Tenn. 2013) (noting that “when construing orders and judgments, effect must be given to that which is clearly implied, as well as to that which is expressly stated”); see also Madison Cnty. v. Evans-Barken, No. W2024-01813- COA-R3-CV, 2026 WL 799038, at *7 (Tenn. Ct. App. Mar. 23, 2026) (soldiering on to review the merits despite the agency’s failure to comply with section 4-5-314 because “[i]n this case, many but not all of the facts are undisputed. But the Board’s reasoning is readily apparent from its order”). So too does the transcript of the Board’s deliberations inform our review. See Tenn. Code Ann. § 4-5-322(h)(5)(A)(1) (providing that whether an agency’s decision is supported by substantial and material evidence is to be determined “in the light of the entire record”); Macon v. Shelby Cnty. Gov’t Civil Serv. Merit Bd., 309 S.W.3d 504, 511 (Tenn. Ct. App. 2009) (relying on Tompkins to reject the appellant’s argument that the Board’s order was insufficient to support judicial review, noting that “the basis of the Board’s determination is apparent from the content of the written decision and the record as a whole”). Here, the record reveals that the Board reviewed each of the policies McGriff was charged with violating in considering whether the County had met its burden. Although the County takes issue with the Board failing to incorporate its findings into the January 2025 written order, the County does not deny the particulars of the Board’s findings as included in the transcript of its deliberations. Like the trial court, we conclude that the record contains sufficient insight into the reasoning behind the Board’s decision to allow for meaningful judicial review under these circumstances. B. We turn next to the County’s substantive argument. During his employment with the SCSO, McGriff was included in the classified service and subject to the provisions of the civil service merit system. Shelby County Ordinance § 14-28. Such employees may be dismissed from service or face other discipline “[f]or unsatisfactory performance of duties or other just cause[.]” Shelby County Ordinance § 14-41. “Cause” is not defined within the -8- ordinance, but it has been construed as “some substantial shortcoming which renders continuance in office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and sound public opinion recognize as good cause for removal.” Knoxville Utils. Bd. v. Knoxville Civil Serv. Merit Bd., No. 03A01-9301-CH-00008, 1993 WL 229505, at *10 (Tenn. Ct. App. June 28, 1993) (quoting 67 C.J.S. Officers and Public Employees § 132 (current version at 67 C.J.S. Officers § 232)). The County acknowledges that it bore the burden of establishing just cause for McGriff’s termination. See id. (“The question of law before the hearing examiner and the trial court was whether KUB had just cause to terminate Mr. Burnette for violating KUB’s drug abuse policy.”); Biggs v. Reinsman Equestrian Prods., Inc., 169 S.W.3d 218, 221 (Tenn. Ct. App. 2004) (“When cause is required for discharging an employee, the employer has the burden of proving the existence of good cause.”). The question we must answer then is whether substantial and material evidence supports the Board’s conclusion that the SCSO failed to prove that just cause existed for McGriff’s termination. The County charged McGriff with the violation of several SORs in support of his termination: SOR 101: Compliance with Regulations, to wit, Policy 325: Drug-free Workplace; SOR 104: Personal Conduct; SOR 111: Disobedience of an Order; and SOR 121: Narcotics. In its deliberations, the Board considered each of these policies individually before determining that the County had proved only a violation of SOR 121. Despite finding that McGriff had violated SOR 121, the Board concluded that the County had not met its burden of establishing just cause for his termination. Instead, the Board determined that McGriff’s employment would be reinstated, subject to certain limitations. The County argues that the Board’s decision to reinstate McGriff’s employment was arbitrary and capricious and unsupported by substantial and material evidence. In particular, the County contests the Board’s finding that there was no just cause for McGriff’s termination despite his positive drug screenings. On appeal, the County focuses on SOR 121 Narcotics and Policy 325 Drug Free Workplace.5 SOR 121 Narcotics provides, in full: All employees will not use or possess drugs in violation of any statute or ordinance, whether on duty or off duty. An employee will not report for duty 5 The County does not offer any real argument related to the remaining two SORs McGriff was charged with violating, SOR 104 Personal Conduct and SOR 111 Disobedience of an Order, which the Board found were not violated. The County merely notes that, “[i]n addition to the SOR 121 Narcotics Charge, the record also revealed SCSO’s consideration of SOR 104 Personal Conduct” and quotes the portion of SCSO Assistant Chief Deputy Dallas Lavergne’s testimony where she states her opinion that McGriff violated all four charged SORs, including SORs 104 and 111. See Sneed v. Bd. of Pro. Resp. of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.”). We will therefore confine our review to the alleged violations of SOR 121 and Policy 325. -9-  under the influence of any drug or narcotic which may interfere with the proper performance of their duty. Employees taking prescribed medication, which may hinder their ability to perform position requirements, must notify their supervisor before reporting for duty. Policy 325 is a six-page document “establish[ing] guidelines that govern the Drug Free Workplace Program adopted by the [SCSO].” Section 325.05 sets out the following “Employee Responsibilities”: SCSO employees / volunteers must not engage in: the unlawful use of illegal drugs; the use of drugs which are legally obtainable, but are being handled abusively or illegally; or the use of drugs which are legally obtainable, but have not been obtained legally. It is every employee / volunteer’s responsibility to comply with this policy. Section 325.06 further provides that it is violation of policy for employees to (1) possess or sell illegal drugs or otherwise engage in the illegal use of drugs or alcohol on the job, (2) use or be under the influence of illegal drugs while on SCSO property, conducting SCSO business, or otherwise representing SCSO, or (3) use prescription drugs illegally. Section 325.10 states that all SCSO employees will be required to participate in random drug testing as a condition of their employment and that “cannabinoids” are among those substances included in such testing. And pursuant to section 325.13, C. Upon receipt of a positive test result for an employee or volunteer, disciplinary action may occur. The Human Resources Department will immediately notify the appropriate supervisor who will then notify the employee / volunteer. . . . . D. Any violation of this policy by an employee / volunteer will be referred to the Bureau of Professional Standards and Integrity for investigation, which may result in disciplinary action up to and including termination. Unlawful activity will be investigated to the fullest and referral made for criminal prosecution when the facts warrant. There is no debate that McGriff’s urine sample was positive for THC or that his hair follicle sample was positive for cannabinoids, specifically carboxy-THC. The County argues that it was arbitrary and capricious for the Board to find that McGriff did not violate SCSO policy in the face of these uncontested facts. According to the County, “the issue [is] not how the cannabinoid THC entered into Mr. McGriff’s body” because “the presence of illegal drugs in Mr. McGriff’s body while he was on duty” is sufficient to establish a violation of SCSO policy. McGriff counters that the plain language of the policies makes the means by which the THC entered his system “critical to the causal determination.” He - 10 - argues that SOR 121 and Policy 325 prohibit using illegal drugs, which he did not do.6 The Board was presented with much testimony regarding the legality of THC.7 Ashundra Bernard, a registered nurse and the lab director for the company providing drug screening services to the SCSO, explained, somewhat circularly, on direct examination: Q. Okay. So what is THC? A. It is a chemical compound that can be extracted from marijuana. Q. And to your knowledge, is marijuana illegal in Tennessee? A. Yes. Q. Can THC be extracted from hemp? A. Yes. Q. Okay. But THC, if it’s extracted from hemp, could be legal in Tennessee? A. Yes, because it’s CBD. Q. Okay. So if that’s the case, then why did he fail the test for THC? A. Because CBD has traces of THC in it. Q. And the traces of THC in CBD is what? A. Illegal. She further defined cannabinoids and carboxy-THC as “Marijuana or THC.” On cross- examination, Nurse Bernard clarified that THC could be found in someone’s system without them ingesting marijuana, including through the use of CBD products. She agreed that a positive drug screen result does not differentiate between illegal marijuana use or legal CBD use and therefore that she could not definitively say whether McGriff’s positive result arose from the use of illegal drugs. Nurse Bernard also offered her understanding of the threshold concentrations used by the testing facilities, i.e., the amount of a substance that must be present in the sample before the screening would return positive. She explained that the lab that tested McGriff’s urine sample requires at least 300 nanograms per milliliter of a substance to flag the sample as positive. As for the lab that tested McGriff’s hair sample, Nurse Bernard initially stated: “The cutoff is much lower than the urine. And it’s cut off at 50 nanograms per milli[li]ter[.]” After refreshing her memory, she amended her answer to “.4.” She acknowledged that the labs do not report the specific concentrations used in their testing. Nurse Bernard could not remember the specific numbers, but she agreed that McGriff’s 6 Indeed, from the testimony procured at the hearing and the arguments included in the County’s brief, only the “unlawful use of illegal drugs” prong of Section 325.05 appears to be at issue, rather than either the “use of drugs which are legally obtainable, but are being handled abusively or illegally” prong or the “use of drugs which are legally obtainable, but have not been obtained legally” prong. 7 Our discussion of the legality of THC and CBD within this Opinion is based on the testimony produced at the hearing before the Board and the state of Tennessee law at that time. - 11 - hair follicle sample returned “high” levels that she opined indicated “frequent use.”8 However, she again conceded that she was unable to determine whether the result stemmed from legally consumed CBD or illegally ingested marijuana. Detective Durrell Taylor with the SCSO Bureau of Professional Standards & Integrity was assigned to investigate McGriff’s failed drug screen. In his Report of Investigation, Detective Taylor concluded that McGriff violated SOR 121 and Policy 325. Both in the report and in his testimony at the hearing, his explanation for this conclusion was that McGriff testing positive for THC indicated the use of an illegal drug. But Detective Taylor also conceded that he did not know and was not qualified to say whether THC is only found in marijuana. He then acknowledged that CBD products, even those containing THC, are legal in Tennessee, such that some amount of THC can be found in legally purchased products. And when asked, “according to what you’ve learned, did [McGriff] ingest CBD gummies?” Detective Taylor replied in the affirmative. He similarly agreed that McGriff “ingest[ed] CBD gummies that contained THC” and that there was no proof that McGriff tested positive for THC through a means other than the CBD gummies. Detective Taylor further explained that it is difficult to prove whether the THC resulting in a positive drug screen “actually came from [CBD] gummies or marijuana.” He opined that the source of the THC is not relevant to the question of whether SCSO policy has been violated, while also stating: “It doesn’t say in the policy that it doesn’t matter where [the THC] came from. It states, use of illegal drugs.” SCSO Assistant Chief Deputy Dallas Lavergne likewise maintained that McGriff testing positive for THC was a violation of the SCSO’s drug-free workplace policy, regardless of how the THC entered his system. She agreed that “the off-duty consumption of THC, in whatever form,” constitutes a violation of SCSO policy and that the discipline McGriff faced was “based on the fact that THC was found in his system[.]”9 Chief Lavergne acknowledged that there had been no suspicion that McGriff was using or under the influence of drugs or alcohol prior to his being directed to submit to testing. But she explained that “[i]t’s a violation to consume illegal drugs” and that the SCSO has “zero tolerance” for such violations, foregoing the standard “progressive discipline” process for employees charged with violating the narcotics policy. Still, Chief Lavergne also acknowledged that “the CBD that is sold that is legal in the state of Tennessee, it’s going 8 None of the documents entered into evidence assigned any numerical value to McGriff’s test results. 9 Chief Lavergne also pointed to the Shelby County Employee Handbook as supporting McGriff’s termination. As relevant, the handbook stated: “There are two types of disciplinary offenses: major and minor. Major offenses normally warrant a higher level of disciplinary action because of the severity of the offense.” Both the “[p]ossession, use, or being under the influence of illegal drugs or alcohol while on the job” and “[s]elling, distributing, using or being under the influence of alcohol or illegal drugs while on the job” were included among the non-exclusive list of major offenses. The handbook further provided that “[m]inor offenses cover other rule violations and conduct not categorized as major. Minor offenses usually require progressive discipline.” - 12 - to have traces of THC. It is legal as far as the law is concerned if it does not contain over 0.3 percent THC.” She agreed that a CBD product meeting the THC limit would not constitute an illegal drug and that SCSO policy does not prohibit taking a CBD product “if it doesn’t contain a illegal drug.” Chief Lavergne stated that the SCSO would be able to determine an item’s THC potency, but no such testing was done in this case because McGriff did not provide a sample of the CBD gummies he said he ingested. While recognizing that the County bore the burden of proof, Chief Lavergne emphasized that she had no proof that McGriff had actually ingested CBD gummies, or that said gummies were within the legal THC limit and legally purchased. It was Chief Lavergne’s opinion that for a person consuming CBD gummies to test positive for THC, the gummies would have to contain more than the legal limit. She explained her understanding that some manufacturers claim their CBD products are within the legal THC limit despite containing more than the allowed amount. However, Chief Lavergne conceded that she did not work in the narcotics department and had not previously investigated businesses selling CBD and similar products. The video deposition of Dr. Sherri Flax, a recently retired board-certified pathologist, was played at the hearing and the transcript was entered as an exhibit without objection. Dr. Flax explained that “CBD is a product that can be obtained from the cannabis plant. Cannabis is the source for THC and also for hemp. Most legal formulations of CBD or CBD oil come from hemp.” Dr. Flax defined carboxy-THC as the “typical metabolite” used to test for the use of cannabinoids, including THC. According to Dr. Flax, CBD is considered a supplement and therefore not regulated by the U.S. Food and Drug Administration “in terms of content.” She stated that CBD derived from hemp must contain less than 0.3 percent THC or carboxy-THC to be legal in Tennessee. Dr. Flax testified to her understanding that there is no requirement that manufacturers label the THC content of their CBD products. She agreed that it is possible that CBD usage could result in a positive drug test. Dr. Flax explained that the lack of standardization in the CBD market makes it difficult to determine the potency of a single product from batch to batch, and as such to determine whether use of a particular CBD product would result in a positive THC test. She described other factors that may impact whether usage of solely CBD products would produce a positive test, including the means of consumption and the frequency and length of use. She noted that the lab reports did not contain the specific concentration thresholds used in determining whether a sample returned positive for THC. She further agreed that it was not possible to discern from the documents in this case whether McGriff’s positive THC result was caused by marijuana usage or CBD usage. Dr. Flax reiterated this opinion in the report produced during her review of McGriff’s drug test results: The [] test results indicate that THC and its metabolite, carboxy-THC, are present in the specimen (hair) however the test results cannot be used to determine the source of metabolites (for example, oral CBD versus inhaled THC substance). As a result, it is possible that the test results for Mr. McGriff