Donald D'Amico v. James Davenport ( 1997 )


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  •                     IN THE COURT OF APPEALS OF TENNESSEE
    WESTERN SECTION AT JACKSON
    ______________________________________________
    DONALD D’AMICO,                                     FROM THE HENDERSON
    COUNTY CHANCERY COURT
    Petitioner-Appellant,                 No. 10980, THE HONORABLE
    JOE C. MORRIS, CHANCELLOR
    Vs.                                                 C.A. No. 02A01-9705-CH-00097
    AFFIRMED
    JAMES DAVENPORT,
    COMMISSIONER, Tennessee                              Connie Westbrook of Memphis
    Department of Employment                             For Appellant
    Security, and JOHNSON
    CONTROLS, INC.,                               John Knox Walkup, Attorney General
    FILED
    Respondents-Appellees
    And Reporter; Douglas Earl Dimond,
    Assistant Attorney General
    For James Davenport
    October 31, 1997
    Paul E. Prather, Steven W. Likens;
    Kiesewetter Wise Kaplan Schwimmer
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    & Prather, PLC of Memphis For
    Johnson Controls, Inc.
    ____________________________________________________________________________
    MEMORANDUM OPINION1
    ___________________________________________________________________________
    CRAWFORD, J.
    This appeal involves the denial of unemployment compensation benefits. Mr. Donald
    D’Amico appeals the decree of the chancery court affirming the denial of benefits by the Board
    of Review of the Tennessee Department of Employment Security (TDES).
    Donald D’Amico was an employee of Johnson Controls, Inc. (JCI) from May 1993 to
    June 1996. Mr. D’Amico is partially disabled as the result of polio suffered as a child. By
    numerous verbal requests and by letter of April 28, 1995, Mr. D’Amico requested that JCI make
    certain modifications to his work station in order to accommodate his disability. Mr. D’Amico’s
    requests apparently went unanswered because in October 1995 he filed a charge of
    discrimination with the Tennessee Human Rights Commission and the Equal Employment
    Opportunity Commission (EEOC). Mr. D’Amico alleges that as a result of requesting work-
    place accommodations for his disability he has been subject to harassment and retaliation by JCI
    management. Mr. D’Amico asserts that this harassment resulted in his missing two weeks of
    1
    Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
    concurrence of all judges participating in the case, may affirm, reverse or modify the actions
    of the trial court by memorandum opinion when a formal opinion would have no precedential
    value. When a case is decided by memorandum opinion it shall be designated
    "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for
    any reason in a subsequent unrelated case.
    work for “medical and psychological intervention.”
    Upon return to work on July 12, 1996, Mr. D’Amico was called into the office of the
    personnel manager, Danny Azbill, and was asked to fill out an employment application which
    was absent from his file and to provide a doctor’s note explaining his absence. The employment
    application is used to provide emergency contacts, references, etc., as well as information to be
    used for advancement purposes. Mr. D’Amico stated that when called in to Mr. Azbill’s office
    he expected to be fired on the spot. He refused to fill out the employment application. When
    asked if he understood the consequences of refusing a reasonable request of management, Mr.
    D’Amico allegedly asked to be terminated that day and be allowed to clean out his locker. Mr.
    Azbill suspended Mr. D’Amico that day and told him to report back to work the next day for the
    final decision of management. Mr. D’Amico never returned to work. He received a letter dated
    June 18, 1996 notifying him that his employment with JCI had been terminated effective June
    13, 1996.
    Mr. D’Amico filed another charge of discrimination with the EEOC on June 18, 1996
    alleging retaliatory discharge, and filed for unemployment compensation benefits on June 20.
    His claim for unemployment benefits was denied. This decision was appealed, and after a
    hearing before the Appeals Tribunal, the Tribunal affirmed the denial of benefits and made the
    following findings of fact and conclusions of law:
    FINDINGS OF FACT: Claimant’s most recent employment prior
    to filing this claim was with Johnson Controls, Inc., from May 9,
    1993, until June 12, 1996, when he was discharged. Claimant
    had worked for this employer through a temporary agency for
    three months before being hired by the employer on a permanent
    basis on May 9, 1993. The employer does have a formal written
    application that is to be filled out by potential employees and is
    retained in the personnel file of those who are hired. There was
    a dispute between the parties as to whether or not claimant had
    originally completed and returned the application, but the
    evidence is clear that claimant’s personnel file did not contain a
    completed application. On June 12, 1996, claimant was asked to
    complete such an application. It is three pages long and the
    experience of the employer is that it takes thirty minutes to
    complete. Claimant had earlier conflicts with the employer and
    had even filed a pending E.E.O.C. suit against them under the
    Americans with Disabilities Act. He was upset with the employer
    and refused to complete the application even after several
    requests. Instead of discharging claimant immediately, he was
    suspended and asked to come back the next day. Claimant
    decided that he was not going to fill out the application, so he did
    not return the next day and was mailed a letter of termination.
    2
    CONCLUSIONS OF LAW: An employee owes a duty to the
    employer to comply with reasonable requests, and failure to do so
    may be work connected misconduct within the meaning of TCA
    § 50-7-303(a)(2). It is not unreasonable for an employer to ask an
    employee to complete an application to replace one that is
    missing for whatever reason. The evidence will not support a
    finding that the employer was making the request either as a form
    of harassment of claimant because of the E.E.O.C. suit or to
    obtain information to use against him in that suit. Claimant has
    shown no reasonable [sic] request from the employer. The
    appeals Tribunal finds that his discharge was for work
    connected misconduct within the meaning of TCA § 50-7-
    303(a)(2). The agency decision denying this claim is affirmed.
    (emphasis added)
    The Board of Review affirmed the decision of the Appeals Tribunal and denied Mr. D’Amico’s
    subsequent request for a rehearing. The chancery court granted certiorari and, after a hearing,
    affirmed the denial of benefits. This appeal followed.
    Mr. D’Amico appeals the judgment of the chancery court and presents two issues for
    review: (1) Whether there is substantial and material evidence to support the finding of the Board
    of Review that Mr. D’Amico’s refusal to follow management instructions was misconduct
    sufficient to warrant termination; and (2) Whether this misconduct properly disqualifies Mr.
    D’Amico from receiving benefits as a matter of law.
    The standard for judicial review of a TDES Board of Review decision regarding
    unemployment benefits is set forth in T.C.A. § 50-7-304(i) which provides in pertinent part:
    (2) The chancellor may affirm the decision of the board or the
    chancellor may reverse, remand or modify the decision if the
    rights of the petitioner have been prejudiced because the
    administrative findings, inferences, conclusions or decisions are:
    (A) In violation of constitutional or
    statutory provisions;
    (B) In excess of the statutory authority
    of the agency;
    (C) Made upon unlawful procedure;
    (D) Arbitrary or capricious or characterized
    by abuse of discretion or clearly unwarranted
    exercise of discretion; or
    (E) Unsupported by evidence which
    is both substantial and material in the light of the
    entire record.
    (3) In determining the substantiality of evidence, the chancellor
    shall take into account whatever in the record fairly detracts from
    its weight, but the chancellor shall not substitute the chancellor’s
    judgment for that of the board of review as to the weight of the
    evidence on questions of fact.
    T.C.A. § 50-7-304(i) (Supp. 1997). This Court must apply the same standard as the trial court
    in reviewing the trial court’s decision in an unemployment compensation case. Ford v.
    3
    Traughber, 
    813 S.W.2d 141
    , 144 (Tenn. App. 1991). Therefore, in reviewing TDES’s findings
    of fact, we are constrained to a determination of whether there is substantial and material
    evidence to support the findings. “Substantial and material evidence is such relevant evidence
    as a reasonable mind might accept to support a rational conclusion and such as to furnish a
    reasonably sound basis for the action under consideration.” Southern Ry. Co. v. State Bd. Of
    Equalization, 
    682 S.W.2d 196
    , 199 (Tenn. 1984) (citations and internal quotations omitted).
    If the record contains such evidence, we are limited to a review of the questions of law presented.
    Perryman v. Bible, 
    653 S.W.2d 424
    , 429 (Tenn. App. 1983).
    An individual is disqualified from receiving unemployment compensation benefits where
    the “commissioner finds that a claimant has been discharged from such claimant’s most recent
    work for misconduct connected with such claimant’s work.” T.C.A. § 50-7-303(a)(2) (Supp.
    1997). The phrase “misconduct connected with such claimant’s work” is not defined by the
    statute, but must be interpreted by the courts on a case by case basis. Wallace v. Stewart, 
    559 S.W.2d 647
    , 648 (Tenn. 1977); Armstrong v. Neel, 
    725 S.W.2d 953
    , 955 (Tenn. App. 1986).
    In Armstrong v. Neel this Court adopted the following standard regulating the determination of
    misconduct:
    conduct evincing such wilful and wanton disregard of an
    employer’s interests as is found in deliberate violations or
    disregard of standards of behavior which the employer has the
    right to expect of his employee, or in carelessness or negligence
    of such degree or recurrence as to manifest equal culpability,
    wrongful intent or evil design, or to show an intentional and
    substantial disregard of the employer’s interests or of the
    employee’s duties and obligations to the employer. On the other
    hand mere inefficiency, unsatisfactory conduct, failure in good
    performance as the result of inability or incapacity, inadvertences
    or ordinary negligence in isolated instances, or good faith errors
    in judgment or discretion are not to be deemed “misconduct”
    within the meaning of the statute. Boynton Cab Co. v. Neubeck,
    
    237 Wis. 249
    , 
    296 N.W. 636
    , 640 (1941).
    Armstrong, 725 S.W.2d at 956. The Tennessee Supreme Court has held that the burden of
    proving disqualification for benefits is on the employer and that “in order to establish a
    disqualification there must be shown a material breach of some duty which the employee owes
    to the employer.” Cherry v. Suburban Mfg. Co., 
    745 S.W.2d 273
    , 275 (Tenn. 1988). If no duty
    owed to the employer is violated, the actions of the employee, even if sufficient to warrant
    termination, do not amount to misconduct connected with such claimant’s work within the
    4
    meaning of the statute. Id.; Weaver v. Wallace, 
    565 S.W.2d 867
    , 870 (Tenn. 1978).
    At the Appeals Tribunal hearing, Mr. D’Amico was questioned by the Appeals Referee
    about why he was suspended:
    Q: Okay. So - so, Mr. Azbill asked you to fill out the application?
    A: Yes, sir.
    Q: What was your response when he asked you to fill out the
    application?
    A: I said no.
    Q: And for what reason?
    A: I didn’t give him any reason. I said no.
    *               *               *
    A: . . . I don’t know whether Danny [Azbill] remembers it but
    it’s coming of Danny and he says, “Do I understand that you’re
    refusing a direct order from management?” I said, yes. And
    that’s the God’s honest truth. And then he says, “Well, I’m
    suspending you.” That’s the way I seem to remember that it
    went. And I said, well, you might as well give me - whatever
    juncture I put this in, you - you might as well give me my
    termination papers now. . . . He then said, “Well, you’re
    suspended pending a decision of management.” I walked through
    the double doors, I made a right hand turn, I went to my locker to
    get some stuff out of my locker. Okay? Because I knew the way
    it was going to turn out. I was pre-disposed already, if you know
    what I’m saying, Mr. Rogers, and that’s basically what came
    down.
    After careful review of the record, we hold that there is substantial and material evidence
    to support the finding that Mr. D’Amico was terminated for work related misconduct in that he
    refused a reasonable request of management to fill out a form required of all employees and that
    he failed to report back to work after the one day suspension. It is obvious that there are ill
    feelings between Mr. D’Amico and members of JCI management, but there is no evidence that
    JCI was making an exceptional request in order to harass Mr. D’Amico. If Mr. D’Amico had
    returned to work the next day, his assertion that the refusal to fill out the application (standing
    alone) was a good faith error in judgment may have been plausible. However, the evidence
    shows that Mr. D’Amico deliberately disregarded a reasonable request of management and then
    failed to return to work at all. We hold that the decision of the Board of Review, adopting the
    findings of fact and conclusions of law of the Appeals tribunal was not arbitrary or capricious,
    but is supported by substantial and material evidence.
    The judgment of the chancery court affirming the Board of Review’s decision is
    affirmed. Costs are assessed against the appellant.
    5
    _________________________________
    W. FRANK CRAWFORD,
    PRESIDING JUDGE, W.S.
    CONCUR:
    ____________________________________
    ALAN E. HIGHERS, JUDGE
    ____________________________________
    DAVID R. FARMER, JUDGE
    6