### FILED February 1, 199

9 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS AT KNOXVILLE

CURTIS G. MAYES, ) KNOX CHANCERY ) C. A. NO. 03A01-9801-CH-00032 Plaintiff-Appellant ) ) ) ) ) ) vs. ) HON. FREDERICK D. McDONALD ) CHANCELLOR ) ) ) ) ) MARGARET C. CULPEPPER, ) REVERSED AND REMANDED Commissioner of the Tennessee ) Department of Employment ) Security ) ) and ) ) WAL-MART STORES, INC., ) ) Defendants-Appellees )

LEE ANN SWARM, Knoxville Legal Aid Society, Inc., for Appellant. JOHN KNOX WALKUP, Attorney General and Reporter, and DOUGLAS EARL DIAMOND, Assistant Attorney General, for the appellee, Commissioner of the Tennessee Department of Employment Security.

FREDERICK W. HODGE, Nashville, for appellee, Wal-Mart Stores, Inc.2 O P I N I O N

McMurray, J.

This is an appeal from the denial of unemployment compensation benefits. Through the entire procedure, including an appeal to the Chan ceryCourt for Knox County, the appellant has been den i e d unemployment compensation benefits because he had been gui lty of misconduct arising out of the scope and course of him employment and T.C.A. § 50-7-303(a)(2) bars himfrom recovery of unemployment compensation benefits. We reverse the judgment of the Chan cer y Court and remand this case to the trial court for entry of an order awarding unemployment benefits as provided by law.

O n September 1, 1995, the appellant bega n his employment at Wal-Mart. Before his employment at Wal-Mart, the appellant had been arrested and charged with assault, vandalism and wire tapping. A t the time of his initial employment with Wal-Mart the charges
were still pending. On his application for employment, the appellant was asked whether he had been convic ted o f a felony or anytype of theft or fraud. He responded truthfully that he had not because at that time, as noted, the charges were still pending.3

The employment application contained no question regarding arrests. Therefore, the appellant did not falsify his employment ap plic a - tion.

When he first went to work at Wal-Mart, he worked as a stockman. He was later transferred to courtesy patrol in the parking lot. On July 15, 1996, the appellant was placed on a judicial diversion for the pending charges. The appellant did not advise Wal-Mart of the judicial diversion. Wal-Mart learned of the judicial diversion through other sources and termi nat ed the appellant's employment. Wal-Mart concedes that it h as no policy that wou ld hav e required the appellant to report the judicial diversion to Wal-Mart. The closest thing to a policy regarding the subject matter is found in the testimony of Mr. Lewis Blockton, a supervisor at Wal-Mart. He testified as follows:

MR. BLOCKTON: Oh, violation of policy as far as an arrested associate. He was - he wasn't arrest ed, but acco rdi n g to our policy, if once they plead guilty to charges or - or pleads no contest or is found guilty of - o f any charges and our - our Wal-Mart is saying that, hey, if the guy is out there guarding other people's safe being and property, and he just pleded (sic) guilty to these charges - you know- how can he stop someone else?
T.C.A. § 50-7-303(a)(2) provides as follows:

(a) Disqualifying Events. Aclaimant shall be disqualified for benefits:4 (2) If the commissioner finds that a claimant has been discharged from such claimant's most recent work for misconduct connected with such claimant'swork, such disqualification shall be for the duration of the ensuing p eriod of unemployment anduntil such claimant has secured subsequent employment covered by an unemployment compensation lawof this state, or another state, or of the United States, and was paid wa ges thereby ten (10) times such claimant's weekly benefit amount;

S i nce the incidents that resulted in the termination o f th e appellant occurred before his employment withWal-Mart; he did not falsifyhis employment application nor violate anycompany policy,
w e are of the opinion that the arrest and subsequent judicial diversion are not connected wi th the appellant's work within the meaning of the above quoted statute.
While the circumstances may be such as to make the appellant unsuitable for the particular work that he was doing for Wal-Mart, i.e., security, they do not constitute grounds for denia l o f unemployment benefits. In Cherry v. Suburban Manufacturing Compa n y , 745 S.W.2d 273, our Supreme Court made the followin g observation:

I t has long been settled in this state, however, that a justifiabl e disc harge is not, in and of itself, "misconduct connected with his work" so as to disqualify a n employee under t he statute. The quoted phrase is a verygeneral one, and each cas e m ust be determined in light of all of the facts and circumstances attendant upon the employee's termination. At a minimum, however,5

the cases are clear that the burden of proving a disqualification is on the employer; and in order to establish a disqualification there must be shown a material breach o f some duty which the employee owes to the employer. See generally, Weaver v. Wallace , 565 S.W.2d 867, 870 (Tenn. 1978), where the Court said:

"Unl ess the employee's wrongdoing violates a dutyowed to the employer, it cannot amount to that 'misconduct connected with his work ' which serves t o disqualify him to receive unemployment insurance benefits, although it may fully justi fy th e employer in discharging him." I d . at page 275.

W e find tha t there was no misconduct on the part of the appellant (as that term is used in T.C.A. § 50-7-303(a)(2)) which would disqualify him from receiving unemployment compensation benefits. Accordingly, we reverse the judgment of the trial court and remand this case for entry of an order awarding unemployment compensation benefits in accordance with prevailing law. Costs are taxed to the appellees.

___________________________________ Don T. McMurray, Judge CONCUR:

___________________________________ Houston M. Goddard, Presiding Judge

____________________________________ Charles D. Susano, Jr., JudgeIN THE COURT OF APPEALS AT KNOXVILLE

CURTIS G. MAYES, ) KNOX CHANCERY ) C. A. NO. 03A01-9801-CH-00032 Plaintiff-Appellant ) ) ) ) vs. ) HON. FREDERICK D. McDONALD ) CHANCELLOR ) ) MARGARET C. CULPEPPER, ) REVERSED AND REMANDED Commissioner of the Tennessee ) Department of Employment ) Security ) ) and ) ) WAL-MART STORES, INC., ) ) Defendants-Appellees )

JUDGMENT This appeal came on to be heard upon the record from the ChanceryCourt of Knox County, briefs and argument of counsel. Upon consideration thereof, this Court is of the opinion that there was reversible error in the trial court. W e reverse the judgment of the trial court and remand this
case for entry of an order awarding unemployment compensation benefits in accordance with prevailing law. Costs are taxed to the appellees.

PER CURIAM