The opinion
IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
Feb 25, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
RALPH E. WILLIAMS, ) E1999-01528-COA-R3-CV
)
Plaintiff-Appellant, )
)
)
)
v. )
) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CHANCERY COURT
)
TENNESSEE DEPARTMENT OF )
EMPLOYMENT SECURITY, )
COMMISSIONER MARGARET )
CULPEPPER, AND CHATTANOOGA )
AREA REGIONAL TRANSPORTATION )
AUTHORITY (“CARTA”), )
) HONORABLE W. FRANK BROWN, III,
Defendants-Appellees.) CHANCELLOR
For Appellant For Appellees
RALPH E. WILLIAMS PAUL G. SUMMERS
Pro Se Attorney General and Reporter
Chattanooga, Tennessee Nashville, Tennessee
DOUGLAS EARL DIMOND
Assistant Attorney General
Civil Rights Division
Nashville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
This is an unemployment compensation case. The
Tennessee Department of Employment Security (“the Department”)
denied the claim of Ralph E. Williams for unemployment benefits,
finding that Williams had been guilty of work-related
misconduct.1 After exhausting his administrative remedies to no
avail, Williams filed a petition for certiorari in the trial
court, which court affirmed the Department’s denial of benefits.
Williams appeals, essentially arguing: (1) that he was not guilty
of work-related misconduct; and (2) that he was deprived of a
fair hearing in violation of state and federal law.
I.
Williams was employed as a bus driver for the
Chattanooga Area Regional Transit Authority (“CARTA”) from
September 9, 1986, until his termination on February 26, 1996.
The separation notice states that he was terminated because of
“job misconduct; habitual violation of CARTA[‘s] work rules.” On
February 29, 1996, Williams filed a claim for unemployment
benefits. His claim was subsequently denied because the
Department found that Williams was discharged for work-related
misconduct.
Williams appealed to the Department’s Appeals Tribunal
on March 29, 1996. In his notice of appeal, Williams contends
1
See T.C.A. § 50-7-303(a)(2) (1999), which provides, in pertinent part, as
follows:
(a) DISQUALIFYING EVENTS. A claimant shall be
disqualified for [unemployment] benefits:
* * *
(2) If the administrator finds that a claimant has
been discharged from such claimant’s most recent work
for misconduct connected with such claimant’s work....
2
that “CARTA has fired 11 black workers in the last 7 years using
the misconduct rule, and this agency is not looking at all the
facts in their decision.”
The Appeals Tribunal heard Williams’ appeal on April
23, 1996. At the hearing, CARTA presented several employees, who
testified regarding Williams’ disciplinary history and the
reasons for his termination. Williams’ disciplinary record, a
volume of over 170 pages, was also introduced into evidence.
Williams, who was representing himself, testified on his own
behalf and presented one other witness.
On April 26, 1996, the Appeals Tribunal released its
decision affirming the Department’s denial of benefits. Although
Williams had contended that his termination was in retaliation
for the complaints he had filed against the company for racially-
motivated discriminatory practices, the Appeals Tribunal found
that Williams had “failed to present sufficient evidence to
substantiate his case.” The Appeals Tribunal also found as
follows:
The Appeals Tribunal finds that the evidence
in the record is sufficient to establish
intentional work related misconduct on the
claimant’s part within the meaning of TCA §
50-7-303(a)(2). The facts show that the
claimant disregarded the employer’s interests
and/or willfully acted against the best
interests of the employer. Misconduct is a
deliberate act or a willful violation of an
employee’s duties, insubordination,
intentional violation of company rules or
conduct detrimental to the interests of the
employer or his fellow workers. The claimant
was discharged for continued and habitual
violations of company policies and
procedures. The claimant was aware that he
was in jeopardy of losing his job. The
claimant has progressed through the necessary
disciplinary procedures to warrant
3
termination. The Agency decision is
affirmed.
The Department’s Board of Review (“the Board”) adopted
and affirmed the Appeals Tribunal’s decision on June 18, 1996.
Williams then filed a petition for certiorari in the trial court
on July 29, 1996. On February 17, 1999, the trial court affirmed
the Board’s decision.
II.
T.C.A. § 50-7-304(i)(2) (1999) provides the standard by
which courts must review administrative decisions involving
claims for unemployment compensation:
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.
Williams’ arguments appear to implicate two provisions of the
statute: that the Board’s decision is unsupported by substantial
and material evidence, see T.C.A. § 50-7-304(i)(2)(E); and that
the decision was in violation of constitutional or statutory
provisions, see T.C.A. § 50-7-304(i)(2)(A). We will address each
of his contentions in turn.
4
III.
First, we must determine whether the Board’s decision
is supported by substantial and material evidence. See T.C.A. §
50-7-304(i)(2)(E). When determining the sufficiency of the
evidence, a court must “take into account whatever in the record
fairly detracts from its weight, but [it] shall not substitute
[its] 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)(3).
Williams challenges the Board’s finding of work-related
misconduct on two grounds. First, he argues that he “was not
fired for job related misconduct at all but rather for having
exposed company mismanagement, fraud, racial discrimination and
sexual harassment.” Second, he contends that CARTA did not
substantiate its charge of misconduct against him.
We find that there is substantial and material evidence
to support the Board’s finding that Williams habitually violated
CARTA’s work rules. Art Barnes, CARTA’s assistant executive
director, testified that from March, 1993, to the date of
Williams’ termination, Williams had run late on his bus schedule
nine times. The following is a portion of Williams’ disciplinary
history:
Date Incident/Violation Action Taken
03/10/93 Running late Counseled
07/23/93 Running late/failure to 2-day suspension
respond to radio
08/05/93 Running late 3-day suspension
09/19/94 Violation of attendance Written warning
policy (5 absences within
90 day period)
5
06/27/95 Running late/improper use 1-day suspension
of radio
08/08/95 Failed to report intention Warning
to be off work for extended
period
08/10/95 Failed to leave garage on 3-day suspension
time to commence route
09/13/95 Customer complaint –- Investigation
constantly late on route
09/13 and Running late (confirmed 5-day suspension
09/14/95 by road supervisors)
11/01/95 Running late 10-day suspension/
Final warning
11/16/95 Violation of attendance Warning
policy
02/27/96 Running late/failure to Suspension/
answer radio Termination
In November, 1995, when Williams was given a 10-day
suspension for running late, he was advised as follows:
Continued violation of Code of Conduct 1J, a
Level I offense, RUNNING LATE SCHEDULE FOR NO
VALID REASON. The ten (10) day suspension
you have just completed is a severe warning
to you.
Any further violations of this rule within
one year from the date of the last infraction
or any major rule violation, will result in
your termination from employment with CARTA.
Within the one-year period, on February 26, 1996, Lee
Dawson, who was Williams’ immediate supervisor, observed Williams
still on CARTA’s property eight minutes after Williams’ run had
been scheduled to begin. Dawson testified that he attempted to
contact Williams by radio, but received no response. Dawson
stopped Williams on his route and asked why he had started late.
Williams’ response was that he was not the only driver running
late. When Dawson asked Williams why he had not responded to the
6
radio, Williams stated that he had not heard it. Dawson then
checked the radio and found that it was working properly.
Williams was terminated the next day. Based upon Williams’
extensive history of running late and other violations of CARTA’s
rules, we find that there is substantial and material evidence to
support the finding that Williams had habitually violated CARTA’s
work rules.
Next, we must determine whether Williams’ habitual
violation of the rules was “misconduct” for the purposes of
disqualification under T.C.A. § 50-7-303(a)(2). Although the
term is not defined in the statute, we have defined “misconduct”
as
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.
Armstrong v. Neel, 725 S.W.2d 953, 956 (Tenn.Ct.App. 1986)
(quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis.
1941)). Upon reviewing Williams’ extensive disciplinary history,
we find that there is substantial and material evidence to
support a finding that Williams had shown an “intentional and
substantial disregard” of his duties and obligations to CARTA by
7
his repeated violations of the agency’s rules. His misdeeds fall
within the concept of “misconduct” found in T.C.A. § 50-7-
303(a)(2).
IV.
The second issue raised on appeal is whether Williams
was deprived of a fair hearing in violation of constitutional or
statutory provisions. See T.C.A. § 50-7-304(i)(2)(A). The
Tennessee Employment Security Law and the federal Social Security
Act both guarantee a claimant who has been denied unemployment
benefits the right to a fair hearing. T.C.A. § 50-7-304(c)(1)
(1999); 42 U.S.C. § 503(a)(3) (Supp. 1999). Williams contends
that he was deprived of a fair hearing for several reasons.
First, he argues that the referee presiding over the Appeals
Tribunal hearing erroneously excluded evidence that, Williams
contends, establishes that his termination was retaliatory.
Second, he argues that he was deprived of his right to counsel.
Third, he argues that T.C.A. § 50-7-303(a)(2) “automatically
classifies” certain behavior as “misconduct” and that this
classification deprived him of a fair hearing. We will address
these issues in the order stated.
At the hearing, Williams attempted to introduce into
evidence a written summary that he had prepared detailing the
alleged harassment by CARTA; a newspaper clipping about the
burning of Williams’ house; and a letter written by Williams to
the Department of Justice requesting a federal investigation of
CARTA. Williams argues that the exclusion of these documents
“prevented [him] from presenting his case at all.”
8
We do not find that the exclusion of the proffered
documents deprived Williams of a fair hearing. Although the
referee did not allow the introduction of the written summary, he
ruled that Williams could use the summary while testifying in
order to refresh his memory. Despite this ruling inviting his
oral testimony regarding the material in the summary, Williams
failed to testify about these matters. Under the record before
us, it cannot be said that he was prevented from presenting the
substance of the material that he had incorporated into the
summary.
The newspaper clipping and accompanying letter were
excluded because the referee found them to be irrelevant. The
clipping reports that Williams’ house had burned down and that
the cause of the fire was under investigation. The letter sets
forth Williams’ allegations that CARTA was responsible for the
fire as well as other retaliatory and discriminatory acts against
him. We find that these documents are at best unsubstantiated
allegations; they provide no proof that CARTA engaged in any
retaliatory conduct against Williams, only his contentions
regarding such activity. Thus, these documents were properly
excluded by the referee.
Next, Williams argues that he “was forced to go before
the [B]oard...without being apprised of or allowed legal counsel
at government expense.”
The right to a fair hearing includes the right to be
represented by counsel. Simmons v. Traughber, 791 S.W.2d 21, 24
(Tenn. 1990). In order to ensure that this right is effective,
the Supreme Court has held that a claimant must have “full and
9
meaningful” notice of the right to be represented at the Appeals
Tribunal hearing. See id.
The Department argues that Williams was advised of his
right to be represented by counsel in a document enclosed in a
notice mailed to Williams on April 9, 1996, advising him of the
hearing before the Appeals Tribunal. The document states, in
pertinent part, as follows:
REPRESENTATION
YOU MAY BE REPRESENTED BY AN ATTORNEY OR ANY
OTHER AUTHORIZED REPRESENTATIVE OF YOUR
CHOOSING. IF YOU CANNOT AFFORD AN ATTORNEY,
FREE OR LOW COST ASSISTANCE MAY BE AVAILABLE
THROUGH YOUR LOCAL LEGAL SERVICES
ORGANIZATION OR BAR ASSOCIATION.
There is no indication that Williams did not receive this notice.
We find that this advisement was sufficient to notify Williams of
his right to be represented. See id. at 25.
Williams’ contention that he was denied counsel “at
government expense” does not rise to the level of error. The
Department was not obligated to provide Williams with an attorney
at the Department’s expense; it was only required to advise him
of his right to be represented. See id.
Finally, Williams argues that T.C.A. § 5-7-303(a)(2) is
unconstitutional because it “automatically upholds the employer”
and “automatically classifies misconduct,” thereby depriving him
of a fair hearing. As a result, he complains that he faced a
“stacked deck” and a “biased set of examiners” at the hearing.
10
We have reviewed the entire record and have found no
evidence of bias or prejudice on the part of the Department.
Further, we find Williams’ contentions regarding the statute to
be baseless. The statute does not specifically define
“misconduct”; rather, it has been left to the courts to determine
what constitutes misconduct on a case-by-case basis. See
Armstrong, 725 S.W.2d at 955. Thus, there is no “automatic
classification” of behavior in the statute. Moreover, we find
nothing in the statute which can be said to “automatically
uphold[] the employer”; on the contrary, under T.C.A. § 50-7-303,
the employer has the burden of proof as to the issue of
“misconduct.” See Weaver v. Wallace, 565 S.W.2d 867, 870 (Tenn.
1978). Williams’ contentions are without merit.
11
V.
The judgment of the trial court is affirmed. Costs on
appeal are taxed to the appellant. This case is remanded to the
trial court for collection of costs assessed below, pursuant to
applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
D. Michael Swiney, J.
12