### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Decem be r 2, 2 00 9 S es si on

ROMONA D. GORE, E T A L 

### . v. MEMPHI S LI GHT , GAS a nd WAT ER, DIVI SI ON OF TH E CIT Y OF MEMPHI S

Direc t Appeal from the Chancer y Court for Davidson Cou nty No. 08-1101-I C laud ia Bon nym an, Chan cellor

No. M2009- 01237-COA-R 3-CV - F iled Dece m ber 14, 2009

This is a claim for unemploy ment benef

its. The claimant was denied unemploy ment benef

its based

on a finding that she falsified company rec ords and there fore was discharg ed for misco n d uct

connec ted with her employ ment. The claimant appea led the administrative decision to the Chance ry Court. The Chance ry Court reve rsed the administr at i ve decision, finding that there was not substantial and materia l evidenc e to support the decision. Upon revie wing the rec ord, we find that the administrative rec ord contains substantial a nd materia l e vidence to suppor t the finding that the claimant falsified company rec ords. Acc ording ly
, we reve rse the decision of the Chance ry Court and

rema nd for f urther a ction consistent with this opi nion.

Tenn. R. App . P . 3. Appeal as of Right; Judgme nt of th e Chancer y Court Re verse d and Rem anded

J

. S T E V E N S T A F F O R D , J
., delivere d the opinion of the court, in which A L A N E. H I G H E R S , P.J
., W.S
., and D A V I D R. F A R M E R , J ., joined.

Fr ed E. Jones, J r., Memphis, Tenne ssee, f or the Appe llant, Memphis L ight Ga s and Water.

Ramona D. Gor e, He rnando, MS, Pro Se.

Robert E. Cooper, J r., Attorney Gene ral and Reporter
, an d M ichae l E. Moore, Solicitor Gene ral, L indsey O. Appiah, Assistant Attorney Gene ral and Ang ela Spinella Bonovic h, Staf f At torney , Nashville, Tenne ssee, for Appellee
, Tenne ssee Depa rtment of L abor and Workforce Deve lopment.

OP INION

After her e mploy

ment was ter

minated by

Appellant, Memphis L ight, Ga s and Water(“ML GW”), Romana D. G o r e ( “Gor e”)
, Appellee
, filed for unemploy ment compensa

tion on Aug ust 3, 2007, with the Tenne ssee Depa rtment of L abor and Workforce D e v e lo p me nt (“TD OL WD”). Gore worke d for ML GW since November 1998, but was termina t ed i n J uly 2007. ML GW terminated Gore ’s employ

ment beca

use she alleg edly falsified company documents. Specifica lly
, ML GW alleg ed that Gore falsified two parts of her 2006 Performanc e Appr aisal. On page twenty -two of 1 the appr aisal, in reg ards to objec tive one for the fourth qua

rter of 2006, Gore wrote:

Chemical I nventory -14 are as wer e identified to be inspe cted to deter mine the chemic al inventory and compile MSDSs for these chemica ls. Activity #1- I conducte d a formal inspection of all fourtee n are as just over the projec ted need date within the 2 quarte r. n d Most of these are as have achie v ed full compliance and I have a chemica l use/inventory & MSDSs for them. Activity #2- During this period I conce ntrated more on i n s u ri ng that all of these are as had a hard copy of MSDSs for their chemica l products, compiling them in

a binder to insure that they are acc essible to all employ ees in the
event that there is a spill, acc ident, or emer g ency , and that they would be acc es s i ble and available in the event that there was as OSHA or TDEC inspection.

On Aug ust 24, 2007, TDOL WD issued its decision finding t hat Gore had bee n terminated for falsify ing documents and that her actions constituted work rela ted misconduct under Tenn. Code Ann. § 50-7-303. Acc ording ly
, TDOL WD held that she was disqualified from re ceiving unemploy ment benef

its. Gore appe aled this dec ision.

A hear ing was set befor e the Appea ls Tribunal on October 3, 2007. Neither party appea red on this date and the A

ppeals Tr ibunal aff

irmed the ag ency ’s decision. Gore appea led this decision
to the Boa

rd of Review, which rema nded the case to the Appea ls Tri bunal for a hear ing on the merits.

The Appea ls Tribunal held a hear ing on Dec ember 7, 2007. M L GW was repr esente d by Ruthie Griff

in, Supervisor of Human Resource Service s and Gore proce eded pro se. Following this hear ing, the Appea ls Tribunal i ssued a written decision on Dec ember 10, 2007. The Appea ls Tribunal found that (1) Gor e wa s an environmental eng ineer for ML GW from November 2, 1998 until Jul y 23, 2007; (2) that ML GW terminated Gore ’s employ ment afte r discover ing tha t she had
not completed inspections as sh e h ad stated in a perf ormanc e appra isal; and (3) that Gore had intended to state in the perf ormanc e appra isal that she would complete the inspections at a later date. Ba sed on these finding s, the Appea ls Tribunal conclude d that Gore was g uilty of work rela ted misconduct by

violating ML GW’s “fa lsification policy when she place d in he r evalua tion that she

I t a p p e a r s f

r o m t h e t r a n s c r i p t o f t h e a d m i n i s t r a t i v e h e a r i n g t h a t M L G W c o n t e n d s t h a t G o r e f a l s i f i e d p a g e s 1

s e v e n a n d t w e n t y

- t w o

. P a g e s e v e n h o w e v e r , d o e s n o t a p p e a r i n t h e r e c o r d

. A c c o r d i n g l y , w e r e v i e w o n l y t h e a l l e g a t i o n s

r e l a t e d t o p a g e t w e n t y

- t w o

.
-2-inspected cer tain fac iliti es when her inspection duties wer e not complete.” Acc ording ly
, the Appea ls Tribunal aff

irmed the ag ency ’s denial of unemploy ment benef

its. Go re appea led the Appea ls Tribunal’s de cision to the Boa rd of Revie w on Dec ember 20, 2007.

The Boa rd of Review upheld the Appea ls Tribunal’s decision afte r rev i ew i n g the entire

rec ord and the finding s of fac t made by the Appea ls Tribunal. The Boa rd of Review stated that the Appea ls Tribunal denied unemploy ment benef

its beca use Gore “fa lsified company documents to ref lect that she had perf

ormed inspections of hazardous materia ls at cer tain locations when she had
not done so.” The Boa

rd found Gore ’s asser

tion that sh e did not mean what she wrote on the documents was not cre dible. The Boa rd of Review also found that her asser tion that the hear ing was unfair beca

use the employ er’ s witnesses wer e in a hurry to leave
, was not supported by the transcr ipt.

Gore submitt ed a petition to rehe ar to the Boa rd of Review along with new evidenc e, on Marc h 31, 2008. The Boar d of R eview denied Gore’s petiti on on April 7, 2008. Gore then fil ed 2

a P et i t i o n fo r J udicial R eview. The Chancery Court held a hear ing on Marc h 24, 2009, wher e all parties wer e allowed to presen t their arg uments. The Chance ry Court, afte r considering the

3
arg uments and revie wing the administrative rec ord, reve rsed the decision of the Appea ls Tribunal. The Chanc ery

Court enter ed a final order on May 14, 2009, wher ein i t adopted its ruling from the bench finding that there was not substantial and materia l evidenc e to show that Gore was dishonest in repor ting the inspections at issue. The Chance ry Court found that the administrative decision was lawful as Gore was not deprive d of her due process rights. The Ch ancery court further noted that the Appea ls Tribunal made other err oneous finding s of fac t. First, the Chance llor found that the finding that Gore had been an environm en t al enginee r si nce 1998 was errone ous; and second, the Chance llor found that the finding that Gore had training was a lso errone ous. The Chanc ery Court found that these finding s may have been materia l to the decision. ML GW appea ls from this decision.

On appe al, ML GW presents two issues for this Court’s re view:

1. Whether the administrative decision was supported by evidenc e that is both substantial and materia l in light of the e ntire re cord; a nd

W h i l e n o t s t a t e d
, i t d o e s n o t a p p e a r t h a t t h e B o a r d o f R e v i e w g r a n t e d G o r e ’ s r e q u e s t t o s u b m i t n e w e v i d e n c e

. 2

A t t h e M a r c h 2 4
, 2 0 0 9
, h e a r i n g G o r e s u b m i t t e d n e w d o c u m e n t s a n d r e f e r r e d t o m a t t e r s n o t i n t h e 3

a d m i n i s t r a t i v e r e c o r d

. I t a p p e a r s f r o m t h e t r a n s c r i p t t h a t d o c u m e n t s w e r e a c c e p t e d b y t h e t r i a l c o u r t

. H o w e v e r , n o

a d d i t i o n a l d o c u m e n t s a p p e a r i n t h e r e c o r d

. I t i s u n c l e a r f r o m t h e r e c o r d w h e t h e r t h e t r i a l c o u r t r e l i e d o n a n y n e w l y

s u b m i t t e d e v i d e n c e i n m a k i n g i t s d e c i s i o n

. I n i t s r u l i n g t h e t r i a l c o u r t o n l y r e f e r s t o d o c u m e n t s c o n t a i n e d w i t h i n t h e

a d m i n i s t r a t i v e r e c o r d

. A n y c o n s i d e r a t i o n b y t h e t r i a l c o u r t o f e v i d e n c e n o t c o n t a i n e d i n t h e a d m i n i s t r a t i v e r e c o r d
, w o u l d b e e r r o r

. A r m s t r o n g v . M a g i l l
, N o

. W 2 0 0 3

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- C O A

- R 3

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, 2 0 0 4 W L 1 4 6 2 6 3 1
, * 5 ( T e n n

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. 2 0 0 4 ) ( c i t i n g M e t r o p o l i t a n G o v e r n m e n t o

f N a s h v i l l e & D a v i d s o n C o u n t y v . S h e c k l e t t , 5 5 4 S

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. 2 d 6 0 1
, 6 0 4 ( T e n n

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.
-3-2. Whether the trial c ourt substitut ed its judge ment for that of the trier of

fac t?

Stand ard of Review

On appea l, this Court is to apply the same standard of revie w as that applied by the trial court. Arm strong v. Nee l
, 725 S.W .2d 953, 955 (Tenn. Ct. App. 1986). The standard of revie w is set forth in Tenn. Code Ann. § 50- 7-304(i), w hich states, in per tinent part:

(2 ) The chanc ellor may aff irm the decision of the board, or t h e chanc ellor may reve rse, rema nd or modify the decision if the rig hts of the p eti tioner have been prejudice d beca use the administrative finding s, infere nces, c onclusions or dec isions are:

(A) I n violation of constitutional or statutory provisions; (B ) I n excess of statutory

authority of the a g ency ; (C) Made upon unlawful proc edure ; (D) Arbitrar

y or capr icious or char act er ized by abuse of discretion or c lear ly

unwar rante d exercise of

discretion; or (E) Unsupported by evidenc e which i s both substantial and materia l in light of the e ntire re cord.

(3) I n deter

mining the substantiality of the evidenc e, t h e chanc ellor shall take into acc ount whateve r in the rec ord fairly detra cts from its weig ht, but the chanc ellor shall not substitu t e t he chanc ellor’s judgme nt for that of the board of re v i ew as to the weig ht of the evidenc e on q u es t i o ns of fac t. No decision of the board shall be

reve rsed, rema

nded or modified by the chanc ellor un l es s fo r err ors which af fec t the merits of the fina l decision of the boa rd.

I n sum, the Boa

rd of Review’s finding is conclusive unless there is not substan t i al an d m aterial evidenc e to support its findi n gs. F ord v. Traughb er , 813 S.W .2d 141, 144 (Tenn. Ct. App. 1991)(c itations omitted). Upon finding substantial and materia l evidenc e, this Court’s revie w is limit ed to conc lusions of law. Id.

Substant i al an d materia l evidenc e is “such rele vant evidenc e as a rea sonable mind might

acc ept to support a rational conclusion and to furnish a rea sonably sound basis for the action under consideration.” Id. (citat i o n s omitted). I t has been descr ibed as “something less than a preponde ranc e of the evidenc e, but more than a scintilla or g limmer.” Wayne Coun ty v. Tenn. Solid Waste Disposal Con trol Bd ., 756 S.W .3d 274, 280 (Tenn. Ct. App. 1988).

-4-Analysis

A claimant may be disqualified from rec eiving unemploy ment benef

its if it is found that the “cla imant has been discharg ed from the claimant’s most rec ent work for misconduct connec ted with the claimant’s work.” Tenn. Code Ann. §50-7-303( a)( 2)(A) (2009). The Appea ls Tribunal relied on this statute in de ny ing Gore unemploy ment benef

its. The Appea ls Tribunal aff irmed the ag ency ’s finding that Gore had falsified company documents and was there fore g uilty of misconduct

connec ted with her work. The statute does not contain a definition of “misconduct connec ted with work.” The Tennessee Supreme Court has held that for c onduct to be misconduct, ther e mus t be

4

a brea ch of duty owed to the employ er. Weave r v. Weave r , 5 65 S.W .2d 867, 870 (Tenn. 1978). “[M] i s co n d u ct m u st at least be intentional conduct that materia lly brea ches a duty the employ ee

owes to the empl oy er.” Arm strong , 725 S.W .2d at 955. This Court has previously held that falsify ing documents is misconduct and may disqualify an employ ee from rec eiving unemploy ment benef its. See Russ ell v. Cul

pepper , No. 03A01-9608-CH- 00261, 1997 WL 129110 (Tenn. Ct. App. 199 7 ) ; T urner v. Stokes
, No. 02A01-9510-CH- 00238, 1996 WL 544377 (Tenn. Ct. App. 1996). The employ er has the burde n of proving that the employ ee should be disqualified from unemploy ment benef its. Weave r , 565 S.W .3d at 870.

T h e TDOL WD, the Appea ls Tribunal, and the Boa rd of Review all found that Gore was g uilty of falsify

ing documents and there fore g uilty of misconduct co n n ec t ed with her work and disqualified from rec ei v i n g unemploy ment compensa tion. The Appea ls Tribunal conducte d a hear ing wher e eac h party was allowed to testify and prese nt evidenc e. At the hear ing, Monica Dar by (“D arby ”), L ead Environmental Eng ineer fo r M L GW
, and Kim Ray burn (“Ray

burn”)
, Assistant Manag er of Fa cilities and L oss Prevention, testified on behalf of ML GW. Dar by testified that Gore ’s employ ment was terminated beca use she falsified company rec ords. Specifica lly
, she testified that Gore falsified her Perfor

mance Appra isal indicating that work was completed that was not actua lly complete. The portions of the Perfor mance Appra isal that wer e alleg edly falsified wer e enter ed into evidenc e. Da

rby testified that she c onducted an investiga tion whe re she conta cted the de partment heads of the are as that Gore was to inspect and develop a chemical inventory for. She prese nted emails from sever al depar tment heads that indicated that Gore had not conducte d an inspection nor develope d her own chemica l inventory for their respe ctive are a. I n her cross examination of Dar by
, Gore stated that she did not ag ree with the statements made in the emails. Dar by further testified that Gore was informed at orientation that falsifica tion of company rec ords would cause her to lose her job

. F in a lly
, Dar

by testified that there was no specia liz ed training for how to perf orm the inspections.

Ray burn testified that she, along with Dar by
, met with Gore in Novembe r and Dec ember 2006, to discuss her Perf

ormanc e Appr aisal. She stated that she informed Gore at these meeting s, that Gore must g o to eac h are a, d o an i n s pection and develop her own chemica l inventory list.

T e n n

. C o d e A n n

. § 5 0

- 7

- 3 0 3 h a s b e e n a m e n d e d
, e f f e c t i v e J a n u a r y 1
, 2 0 1 0

. 2 0 0 9 P u b l i c A c t s C h a p t e r N o

. 4

4 7 9

. T h e a m e n d m e n t c o n t a i n s a d e f i n i t i o n o f m i s c o n d u c t c o n s i s t e n t w i t h t h e d e f i n i t i o n s s e t f

o r t h b y t h e T e n n e s s e e S u p r e m e C o u r t a n d t h i s C o u r t

. I d

. H o w e v e r , t h e a m e n d m e n t i s n o t e f f e c t i v e f o r t h i s c a s e

.
-5-During Ray burn’s testimony
, notes from her meeting s with Gore wer e enter ed into evidenc e. These
not es re fl ec t wh at she testified to about the meeting s. On cross examination of Ray burn, Gore denied having met with Ray burn in November

. Ray

burn testified that Gore did not rec eive training

as to how to pe rfor

m the inspections from her, but tha t others had g one over what was expected of the inspections with Gore

.

Gore also testified at this hear ing. She stated that prior to the Dec ember meeting
, she thought she was to g o to eac h are a and that the are a would provide her with a list of their chemica l inventory

. Gore denied having a m eeting with Ray burn and Dar

by in November

. She testified t hat s he w ent to eac h are a to collect their chemica l inventory and was planning o n re t u rn i n g to do “follow-up inspections.” She claimed that she stated this in her Perfor mance Appra isal on Pag e 23, which
appea rs in the re cord.

We have revie wed the entire rec ord in this ca s e, including the transcr ipt from the administrative hear ing. I n revie wing the rec ord, we must deter mine whether there is substantial and materia l evidenc e to support the finding s of fac t. “The standard of revie w of a decision of the Boa rd of Review envisions substantial judicial defe renc e to a dminist rative de cisions and the cour ts must g uard ag ainst substitut ing their judgme nt for that of the admin istrative ag ency .” Perkins v. D a v e np o rt , No 03A01-9903-CH- 00106, 1999 WL 1191506, *3 (Tenn. Ct. App. 1999 ) ( c it in g Ch e r r y

v. Subu rban Manu

facturing Com

pany , 745 S.W .2d 273, 277 (Tenn. 1988)). We find that there is substantial and materia l evidenc e in the administrative rec ord, for the trier of fac t to find that Gore falsified company rec ords and there fore was d i s ch ar ged for work rela ted misconduct. Whil e this Court, as the trier of fac t, may have rea ched a differ ent conclusion, we cannot say that the rec ord in this case is devoid of material and substantial evide nce a s to justify the reversa l of t he decision of the administrative ag ency

. Cherry , 745 S.W .2d at 277.

We note that the Chance ry Court found that the Appea ls Tribunal made two other err oneous finding s of fac t; f

irst, tha t G ore had worke d as an environmenta l e ng ineer since 1998; a nd second, that s h e re ceived training in how to perf orm her job. Whil e Gore had worke d for ML GW since 1998, the rec ord does show that she had only worke d as an environmenta l eng ineer since Fe bruar y 2006. Whil e this finding is err oneous, we find that it is not materia l to the finding that she falsified
company rec ords. Additionally
, we have deter mined that the finding that she rec eived training on how to perf

orm her job is not materia l to the finding that Gore falsified company rec ords. There is substantial and materia l evidenc e to support a finding that Gore was informed that she was to make full inspections and develop her own chemica l inventory for eac h are a. Gore stated that she had done thi s. Howeve r, there is substantial and material evidenc e to support the findi ng that she had neither made a full inspection nor develope d her own chemica l inventory for eac h are a. Fur ther, there is substantial and materia l evidenc e that she was informed by at least one person, that these wer e her duties.

Conclusion

-6-This Court finds that there is substantial and materia l evidenc e to support the finding of the

Appea ls Tribunal that Gore falsified company rec ords and was acc ording ly discharg ed for misconduct connec ted with her work. Consequently
, we reve rse the decision of the Chance ry Court and re mand for a

ny other a ction consistent with this opi nion. Costs of this appea l are taxed to the Appellee , Romana D. Gor e, for which execution may

issue if nec essar

y

.

___________________________________ J . STEVEN STAFF ORD, J

.

-7-