The opinion
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"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for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