1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the ca se, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no prec edential value. When a case is decided by memora ndum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case

. 

# FILED

October 31, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ DONALD D’AMICO, FROM THE HENDERSON COUNTY CH

ANCERY COU

RT Petitioner -Appella nt, No. 10980, THE HONORABLE JOE C. MORRIS, CHANCELLOR Vs. C.A. No. 02A01-9705-CH-00097 AFFIRMED JAMES DAVENPORT, COMMISSIONER, Tennessee Connie We stbrook of Memphis Department of Emp loyment For Appellant Security , and JOHNSON CONTROLS, INC., John Knox Walkup, Attorney General And Reporter; Douglas Earl Dimond, Assistant Attorney General Respondents-Appellees For James Davenport Paul E. Pra

ther, Steven W. Li

kens; Kiesewetter Wise Kaplan Schwimmer & Prather, PLC of Memphis For Johnson Controls, Inc.

_________

__________________________________________________________________ _ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. This appeal involves the d enial of unemploym

ent compe

nsation be

nefits. Mr . Donald D’Amico appeals the decreeof the chancery court affirming the de nial of benefits by the Board of Review of the Tennessee Department of Employment Security (TDES). Donald D’Amico

was an e mployee o f Johnson C o ntrols, Inc . (JCI) f rom May 19 93 to June 1996. Mr. D’Amico is partia lly disable d as the r

esult of p olio suffe

red as a child. By

numerous verbal requests and by letter of April 28, 1995, Mr. D’Amico requested that JCI make certain modifica tions to his work stat

ion in orde

r to acc ommodate

his disability. Mr. D’Amico’s request s apparently went un answe red because in October 1995 he filed a charge of discriminat ion with the Tennessee Human Rights Commission and the Equal Employment Opportun ity Commission (EEOC). Mr. D’Amico alleges that as a result of requesting work

place accommodations for his dis ability he has been subject to harassm ent and r etaliati on by JCI managem ent. Mr. D’Am

ico asse rts that this ha rassment resulted in his missing two weeks of2

work for “medical and psychological intervention.” Upo n return t o work on July 12, 1996, Mr. D’Amico was called into the office of the personnel manager, Danny Azbill, and was aske d 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, refer ences, 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 refuse d to fill out the employment application. When asked if he under stood the c onseque nces of r efusing a reasona ble request of management, Mr. D’Amico alleged

ly asked t o be term inated th at day and be allow ed 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 rec eived a letter dated June 18, 1996 notifying him that his employment with JCI had been terminated effective June 13, 1996. Mr. D’Amico filed an other charg e of discrimination with the EEOC on June 18, 1996 alleging retaliatory discharge, and filed for unemployment compensa tion benefits on Jun e 2 0. H is cla im for unemployment benefits was denied. This decision was appealed, a nd after a hearing before

the Appe als Tribu

nal, 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 employmen t pri or to filing this claim was with Johnson Controls, Inc., from May 9, 1993, until June 12, 1996, when he was di scharged. 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 potenti al e mployeesand is retained in the personne

l file of t hosewho are hired. There was a dispute be

tween the parties a s to whether

or not claimant had originall y complete d and ret

urned th e application, but the evidence is clear

that claimant’s pe

rsonnel f ile did not contain a completedapplication. On June 12, 1996, claimant was asked to complete such an application. It is three pages long and the experi ence of the em

ployer is that it tak

es thirty m

inutes t o complete. Claimant had earlier conflicts with the employer and had even fil ed a pen ding E.E.O .C. suit aga inst th e m under the Americans with Disab ilities Ac t. He was upset with the employer and refused to complete the application even af ter several request s. Instead of discharging claimant immediately, he was suspen d ed and asked to come back the next day. Claimant decided that he wa s not going t

o fill out th

e applic ation, so h

e did not return the next day and was mailed a letter of ter mination.3 CO NCLUSIONS OF LAW: An employee owes a duty t o th e employer to comply

with rea sonable

request s, and fa

ilure to do so may be work connected misconduct within the meaning of

TCA § 50-7-303(a)(2). It is not unreasonable for a n employer to ask an employee to comple

te an app lication t

o replac e one th at i s missing for whatever reason. The e viden ce will no t support a finding that the employer

was making the request either as a form of harassm ent of c laimant because of the E.E.O .C. suit or t

o obtain information to use against him in thatsuit. Claimant has shown no reasonable [sic] request from the employer

. The appeals Tribunal fi nds th at his discharge was for work connected misconduct

within the m eaning 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 chancer y court granted certiorari and, afte r a hearing, affirmed the denial of benefits. This appeal followed. Mr. D’Amico appeals the judgment of the c hancery court and presents two issues for review: (1) Whether there is substantial and material evidence to support the finding of the Board of Review th at Mr . D’Am ico’s refusal to follow management instructions was misconduct sufficient to warrant termination; and (2) Whether this miscondu ct pro perly disqualifies Mr. D’Amico from receiving benefits as a matter of law. The standar

d for judi cial rev

iew of a T

DES Board

of Review

decisi on reg arding unemploym

ent benefits is set f

orth in T.C .A. § 50-7 -304(i) which pr ovides in p ertinen

t part: (2) The chancellor may affirm the decision of the board or t he chancellor

may reverse, remand or modify the decision if the rights of the petitioner hav e be en prejudiced because the administrative findings, inferences, conclusions or decisions are: (A) In violation of constitutional or statutory provision s; (B) In excess of the statutory authority of the agency; (C) Made upon unlawful procedure; (D) Arbitrary or capricious or cha racterized by abuse of discretion or clearly unwarr ant e d exercise of discretion; or (E) Unsupported by evidence which is both substantial and material in the light of the entire record. (3) In deter

mining the s ubstantia

lity of e vidence, the chancellor shalltake into account whatever in the record f airly detracts from its weight, but the ch ancello r shall no t substitute

the chancellor’s judgmentfor t hat of th e board of review as to the weight of the evidenc e on ques tions of fa ct. 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 i n an unemp loyment compensation case. Ford v.4

Traughber , 813 S.W.2d 141, 144 (Tenn. App. 1991). Therefore, in reviewing TDES’s findings of fact, we a re constrained to a determination of whether ther e 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 a s to furnish a reasonably sound basis for the action under considera tion.” Southern Ry. Co. v. State Bd. Of Equalization , 682 S.W.2d 196, 199 ( Ten n. 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 di squalified from receiving unemployment compensat ion benefit s wher e the “commissioner finds that a claimant has been discharged from

such claimant’s most recent work for misconduct

connect ed with such claimant’s work.” T.C.A. § 50-7-303(a)(2) (Supp. 1997). The phra se “misco nduct con nected with such c laimant’ s work” isnot define d 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. 197 7) ; Armstrong v. Neel , 725 S.W.2d 953, 955 (Tenn. App. 1986). In Armstrong v. Neel

this Court adopted the following standardregulating the determination of misconduct: cond uc tevincing such wilful and wanton disregard of an

e mployer’s interests as is found in deliberate violation s o r disregard of standards of behavior which the employer has the rightto expect of

his employee, or in carelessness or negligence of such degree or rec u rrence as to manifest equal culpability, wrongfu l intent or e

vil design , or to show

an intent

ional an d substantial disregard of the empl oyer ’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 ordinar y neglige nce in iso lated inst

ances, or good fa

ith errors in judgment or discretion ar e no t to be dee med “misc onduct” 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 Tenne ss ee Supreme C ourt has held that the burden of proving disqualif

ication f or benef its is on the employer and that “in order to establish a disqualification there mu st 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 owedto the employer is vi ol ated, the actions of the employee, even if sufficie nt to warrant termination, do not amou nt to misconduct conn

ected w ith such c laimant’ s work wit hin th e5

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 wa s your re sponse wh en he ask ed you to f

ill o ut th e 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] remember s it but it’s coming of

Danny and he sa

ys, “ Do I understand that you’re refusing a direct order from management?”I s aid, yes. And that’s the God’ s honest tr uth. And then he says, “Well, I’m suspending you.” That’s the way I seem to remember that it went. And I sai d, well, you might as well give me - whatever juncture I pu t this in, you - you mi ght as well give me m y termination papers now. . . . He then said, “W ell, you ’re suspendedpending a

decision of management.” I walked through the double doors, I made a right hand turn, I went to my locke

r to get some stuff out o f 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 bas ical ly what ca me down. After careful review of the rec ord, we hold that there is substantial and material evidence to support the finding that Mr. D’Amico was terminated for work rela ted misconduct in that he refused a reasonable request of manageme ntto fill out a formrequired of all employees and that he failed to

report b ack to wo

rk afte r the one day suspe

nsion. It i s obvious th at th ere ar e ill feelings betwee

n Mr. D’A

mico and m

embers o f JCImanagement, but there is no evidence that JCI was making an exceptional request in order to hara ss Mr. D’Amico. If Mr. D’Amico had returned to work

the next d ay, his assertion that the refusal to fill out the application (standing alone) was a

good faith error in judgment may have been plausible. Howeve r, the evidence shows that Mr. D’Amico

deliber ately disr egarde d a reas onable

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 conc lusions of

law of the

Appeals tribunal w as not ar bitrary o r capri cious, but is supported by substantial and material evidence. Th e judgment o f the cha ncery c ourt aff

irming the

Board of

Review’ s decisio n i s affirme d. Costs ar

e assess ed again st the app ellant.6 _________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE