Mcpherson v. Stokes

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

FILED

DOUGLAS McPHERSON, )

April 11, 1997

)

Plaintiff/Appellant, ) Cecil W. Crowson

) Appellate Court Clerk

VS. ) Davidson Chancery

) No. 93-3444-II

BILLY STOKES, in his capacity as )

Commissioner of the Tennessee ) Appeal No.

Department of Employment Security; ) 01A01-9505-CH-00216

and SATURN CORPORATION, a )

corporation doing business in )

Tennessee, )

)

Defendants/Appellees. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE C. ALLEN HIGH, CHANCELLOR

For the Plaintiff/Appellant: For the Defendant/Appellee

State of Tennessee:

David Kozlowski

Columbia, Tennessee John Knox Walkup

Attorney General and Reporter

Robert W. Stack

Vernon A. Melton, Jr.

Nashville, Tennessee

Saturn Corporation:

Waverly D. Crenshaw, Jr.

Stephen W. Grace

Waller, Lansden, Dortch & Davis

Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal involves a claim for unemployment compensation benefits by

an employee who declined to return to work following a leave of absence. The

Department of Employment Security denied the claim because the employee had

left his job voluntarily without good cause connected with his work. The

Chancery Court for Davidson County affirmed the denial of the employee’s claim,

and the employee perfected this appeal, asserting that he did not leave his job

voluntarily because his employer had not formally denied his second request for

personal leave when it notified him of his separation. We affirm the denial of

unemployment compensation benefits.

I.

Douglas McPherson began working at Saturn in June 1992. Six months

later, he requested a one-month leave of absence to enable him to appear as a

witness in court proceedings in Michigan. Saturn granted Mr. McPherson leave

from January 11 through February 11, 1993. Mr. McPherson decided to take

additional leave before his original leave expired, and on February 5, 1993, mailed

Saturn a standard form requesting additional leave until January 11, 1994. In an

accompanying letter, Mr. McPherson justified his request for additional leave on

“an ongoing court subpoena and unfinished personal business.”

Saturn did not act immediately on Mr. McPherson’s second request for

leave but apparently telephoned him several times to discuss his plans for

returning to work. During one conversation, a supervisor informed Mr.

McPherson that “We don’t think we can approve this absence for the length of

time you’re asking.” Mr. McPherson remained in Michigan rather than returning

to work, and on March 5, 1993 wrote Saturn a letter insisting on written notice of

“Saturn’s position on this matter.” On March 12, 1993, Saturn informed Mr.

McPherson that he was being “separated . . . as a voluntary quit” effective on

March 12, 1993 because he had failed to report for work following the expiration

of his personal leave of absence.

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Mr. McPherson filed a claim for unemployment compensation benefits on

March 23, 1993. The Department of Employment Security denied his claim on

April 1, 1993, and the department’s board of review upheld the denial on October

13, 1993. Mr. McPherson then sought judicial review of the administrative denial

of his claim, and on March 17, 1995, the Chancery Court for Davidson County

affirmed the administrative decision that Mr. McPherson was not entitled to

unemployment compensation benefits.

II.

Tennessee’s unemployment compensation statutes provide a system of

temporary compensation to help support workers who become unemployed

through no fault of their own. The system is expressly aimed at ameliorating the

harsh economic effects of involuntary unemployment on workers and their

families. See Tenn. Code Ann. § 50-7-102(a) (1991). Accordingly, workers who

leave their jobs “voluntarily without good cause connected with . . . [their] work”

are not entitled to receive unemployment compensation benefits. Tenn. Code

Ann. § 50-7-303(a)(1) (Supp. 1996).

The courts review administrative decisions regarding unemployment

compensation benefits using the standards contained in Tenn. Code Ann. § 50-7-

304(i)(2) (Supp. 1996). The sole issue presented by this appeal is whether the

administrative denial of Mr. McPherson’s claim is based on a correct

interpretation and application of the statutory “voluntary quit” disqualification.

See Tenn. Code Ann. § 50-7-304(i)(2)(A). Since the material facts in this case are

essentially undisputed, this issue presents a question of law. Cooper v. Burson,

221 Tenn. 621, 626-27, 429 S.W.2d 424, 426 (1968); Frogge v. Davenport, 906

S.W.2d 920, 922 (Tenn. Ct. App. 1995).

III.

Mr. McPherson justifies his continued absence from work by asserting that

he was not required to return to his job until he received a formal, written denial

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of his second request for extended personal leave. At the administrative hearing,

he asserted that a court subpoena took precedence over Saturn’s expectation that

he would return to work and insisted that he “did not really need a request for

special leave of absence for personal reasons.” Mr. McPherson has cited no work

rule or other authority for the notion that an employee can unilaterally extend his

or her own leave in these circumstances.

A.

An employee need not form a specific intent to quit his or her job to be

disqualified to receive unemployment compensation benefits under Tenn. Code

Ann. § 50-7-303(a)(1). Courts will find that an employee has voluntarily

terminated employment if the employee fails to take all necessary and reasonable

steps to protect his or her employment. Freeman v. District of Columbia Dep’t of

Employment Servs., 568 A.2d 1091, 1093 (D.C. 1990); In re Claim of Bonilla, 650

N.Y.S.2d 360, 361 (N.Y. App. Div. 1996); Zielinski v. Unemployment

Compensation Bd. of Review, 101 A.2d 419, 420 (Pa. Super. Ct. 1953).

Accordingly, a voluntary act or failure to act with knowledge that termination may

follow can be considered a voluntary leaving. Smith v. Department of

Employment Sec., 780 P.2d 1335, 1336 (Wash. Ct. App. 1989); Paul H. Sanders,

Disqualification for Unemployment Insurance, 8 Vand. L. Rev. 307, 317-20

(1955).

In this context, the word “voluntarily” connotes the employee’s volition or

will in contrast to conduct compelled by the employer. Cruz v. District of

Columbia Dep’t of Employment Servs., 633 A.2d 66, 70 (D.C. 1993); Dingmann

v. Travelers Country Club, 420 N.W.2d 231, 233 (Minn. Ct. App. 1988);

Chandler v. Department of Employment Sec., 678 P.2d 315, 320 (Utah 1984).

Voluntary acts are ones taken on the employee’s own motion or accord. Moulton

v. Iowa Employment Sec. Comm’n, 34 N.W.2d 211, 213 (Iowa 1948); Kentucky

Unemployment Ins. Comm’n v. Young, 389 S.W.2d 451, 453 (Ky. Ct. App. 1965).

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As a general matter, employees who do not return to work following a leave

of absence are deemed to have left their employment voluntarily. Nofrio v.

Department of Labor & Employment Sec., 442 So. 2d 268, 269 (Fla. Dist. Ct. App.

1983); In re Juarez, 646 N.Y.S.2d 735, 736 (N.Y. App. Div. 1996). Occasions

may arise, however, that require an employer to give an employee the choice of

returning to work or being terminated. Thus, employees who have not returned

to work have not lost their unemployment compensation benefits if their

employer’s failure to inform them that their leave is unacceptable leads them to

believe that the leave is excused. See Goodman v. Engle Homes, Inc., 621 So.2d

523, 524 (Fla. Dist. Ct. App. 1993).

B.

This is not a case in which Saturn’s inaction induced Mr. McPherson to

believe that his continuing absence from work was excused. To the contrary, Mr.

McPherson unilaterally decided to extend his leave when he knew that Saturn

expected him to return to work. Saturn’s standard leave form, which Mr.

McPherson filled out on two occasions, states that “[f]ailure to return to work on

the first scheduled work day following the expiration date of this leave will be

considered a voluntary quit, and separation will occur.” In addition to this

warning, one of Mr. McPherson’s supervisors told him during a telephone

conversation following the expiration of his first leave that his second leave

request would not be approved.

Rather than taking steps to return to work following his telephone

conversations with Saturn personnel, Mr. McPherson decided to prolong his leave

by demanding a formal written response to his request for leave even though he

already knew his request had not and would not be approved. Mr. McPherson

failed to take the steps reasonably necessary to protect his job when he decided not

to return to work. His decision was a voluntary one, and thus the administrative

agency properly concluded that he had voluntarily left his employment without

good cause connected with the work.

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IV.

We affirm the denial of Mr. McPherson’s claim for unemployment

compensation benefits and remand the case to the trial court for whatever

additional proceedings may be necessary. We tax the costs of this appeal to

Douglas McPherson and his surety for which execution, if necessary, may issue.

_______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

______________________________

HENRY F. TODD, P.J., M.S.

______________________________

BEN H. CANTRELL, JUDGE