# FILED
Novemb er 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT KNOXV

ILLE

_______________________________________________________ ) LEWIS G. JON

ES , ) Claiborne County Chancery Court ) No. 11,259 Petitioner

/Appella nt. )

) VS. ) C.A. No. 03A01-9706-CH-00202 ) MARGA RET C. CULP EPPER , ) Comm issioner, Tennessee

Departm

ent ) of Employm

ent Secur

ity, et a l, )

) Responde

nts/Appellees. ) )

______________________________________________________________________________ From the Chancer y Court of Cla

iborne County

at Tazew ell Honorable Billy Joe White, Chancellor

William Allen , Oak Ridge, Tennessee Attorney for Petiti oner/Ap

pellant.
John Knox Wa

lkup , Attorney Gene

ral and Reporter Kimberly M. Frayn , Assistant Attorney Gene ral Attorney for Re spondent/Appellee Margaret C. Culpepper, Commissioner, Tennessee De pa rt me nt of

Em pl oym en t S ec ur it y. Robert L. Crossley , LONG, RAGSDAL E & WATERS, Knoxville, Tennessee Attorney for Re spondent/Appellee Holiday I nn - Cedar Bluff.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. CRAWF ORD, P. J., W.S. : (Concur s) WILLIAMS, Sp. J. : (Concur s)Lew is G. Jones appeals the trial court’s order affirming the decision of the Board of Review of the Tennessee Department of Employ ment Secur ity t

o deny Jones’ claim for unemploy ment comp ensation

benefit s. We aff

irm.

In March 1996, Jones filed a c laim for unem ploy ment comp ensation

benefit s. Jones’ claim deno te d Job Shop in London, Kentucky , as the separating employ er and indicated the following reason for his se paratio n: “Abse

nt/Tardy /Failur e to Call or Report.” Job Shop opposed Jones’ claim for

benefits on the grounds that Jones failed to appear for work without notifying Job Shop and that he voluntarily quit. The De partment of Employment Secur ity subsequently

denied Jones’ claim for

unemploy

ment comp ensation

benefit s based on

its ruling that Jones’ “absent

eeism and/or failure to properly

notify employ

er of the need to be absent” constituted misconduct.

After Jones appealed the denial of benefits, h e was gran ted a telephonic hearing before the Depa

rtment’s Appeals Tribunal to deter mine the is sues of whether “ he volunta

rily quit work without good cause or was discharg ed for misco nduct.” See T.C.A. §§ 50-7-303(a)(1), (2) (Supp. 1996). At the hearing, the following evidenc e was adduced.

Job Shop is an age

ncy which se nds its employ

ees on te mporary job assignments wit

h its customers. In January 1996, when he was employ ed by Job Shop, Jones signed a checkli s t containing, inter alia , the follo wing pol icies an d proced

ures:

3. I understand that

I am an employ

ee of TH E JOB SHOP, I

NC. and only I

or TH E JOB SHO P, INC . can ter minate my employ ment. When an as signmen t ends I must repo

rt to THE JOB SHOP, I

NC. offic e for my

next ass ignmen t. Failur

e to do s o or to accept my

next job assignment will indicate that I have volu

ntarily quit and w ill not be e lig ible for unemploy ment bene

fits.

. . . . 6. If for some unexpected reason, s uch as an emergency or illness, I cannot make it to work or will be late, I

will contact THE JOB SHOP, INC. as soon as possible so y ou can call the client and/or f ind a rep laceme

nt. My f ailure to do so may be grounds for dismissal and/or indicate that I have quit.

Jones’ fi rst temporary job a ssignment was a three-day assignment with Firestonebeginning February 14, 1996. O n Febru ary

16, 1996, t

he third d ay

of Jones’ a ssignme

nt, Jones failed to report to work at Firestone, and he did not notify Job Shop that h

e would be ab sent. Janic e Nan

tz, Job Shop’s personnel coordinator, called Jones at approximately 9:30 a.m. on Februa ry 16 to inquire about his absence. At that time, Jones informed Nantz that he could not report for work that day because he had a prior appoint

ment. Since t hat day, Jones has not contacted Job Shop to inquire about fur ther job a ssignme

nts.

Jones testified that he did not report for work on February

16 because “it was snowing and [he] could n’t ge t [his] ca r out of the drivew ay .” The pr evious da y, Jones had wa

rned his supervisor

at Firestone that he would not be in on February 16 if it snowed. Jones admitted, ho wever, that he di d not notif y a nyo ne at Job Shop

of his abs ence fr

om work un

til Janice Nant z calledhim on the mo

rning of Februa ry 16. Jones a

lso ad mitted tha

t, after his conve

rsation w ith Nant z, he neither reported for

work on February

16 nor called Nantz back after that date to inquire about future job assignments. Jones explained that he never called Nantz back because , during

their conversation, Nantz stated that “[t]his is the way it works, we ca ll you to go in, if y

ou don’t go in,
we probably won’t c all you [any] more.” Jones interpreted this statement to mean that he had been discharged.
Following the hearing, the appeals ref eree entered a decision

affirming thedenial of Jones’ claim for

unemploy

ment bene

fits base d upon the

refer ee’s ruling tha

t th e evide nce established willful misconduct by Jones. I n support of this ruling, the appeals referee reasoned that Jones
[W]as not in comp liance w ith [his] contract to contact the employe r and he refused available work with the client. Both a ctions demonstr ate a disr egard

of the em

ploy er’s inte

rest amou

nting to misconduct.
The appe als refe

ree mad e the fol lowing f

indings o f fact:
[Jones’] most recent employment prior to filing this claim wa s with Job Shop, as a temporary

employee with a

client from February

[14], 1996, until Feb

ruary 16, 1996. [Jones] under stood th e assignment was only a “couple” of days. The c lient had additional work for [Jo nes], but[Jones] told the

client on Februa ry [15], that he

would not b e in the following day . [Jones] did not contact the employer. About oneand a ha lf hours in

to [Jones’] shift, the personnel coordinator called [Jones] at home because the client wanted him to come in eve n though it was late. [Jones] told her he had oth er plans . Since he

did notreport to the client for the additional work and did not contact the employer about a

dditional work, he was terminated.

Jones appealed the Appeals Tribunal ’s decis ion to the Boa rd of Review, whic

h affirm ed, expre ssly adopting the Tribunal’s findings of fact a nd decision.

After the Board of Review affirmed the Appe als Tribunal’s de cis ion , Jo nes, now represented

by counsel, fi led a petition to rehear in which he asked for the oppor tunity to present further evidence concerning the snowf all at his home on February 16, 1996. The Board

of Review denied the petition to rehear, and Jones sought judicial review by filing a petition for certiorari in the Ch an ce ry C ou rt fo r C la ib or ne Co un ty.

On appeal from the trial court’s order affirming the Board’s dec ision, Jones contends that the record fail s to suppo rt the Bo a rd’s conclusion th at Jones wa s dischar ged fo r miscond

uct. Jones argues that, as a matter of law, his absence from work on F

ebruar y 16 , 1996, did

not constitute misconduct. Jones further contends that the Board erred in deny ing his petition to rehear

in which he sought to present additional evidence of the we ather conditions on February 16, 1996.

On appeal from the Board of Revie w’s denia

l of benefits, our r

eview is l imited to determining whether the record contains substantial and materi al evide nce to support the Board’s conclusion that the claimant’s actions constituted misconduct. Simmons v. Culpepper , 937 S.W.2d 938, 943 (Tenn. App. 1996) (citing T.C.A. § 50 -7-304(i) ( 1991)). This Court has adopted the following standard

for dete rmining whether a claima nt’s acti ons constitute misco nduct with in the meaning of the une

mploy ment comp ensation

statutes:
[C]ond uct evincing such willful and wanton disregar d of an employ er’s inte rests as i s found in deliberate violations or disregard of standards of behavior which the employ er has the right to expect of his em ployee, or in carelessness or neglige nce of such degree or re curre nce as to manif

est equa l culpabi lity , wrong ful intent or evil design, or to show

an intent ional and su bsta ntial disregard of the emplo y er’s interests or of the employee’s duties and obligations to the employer.Simmons v. Culpepper , 937 S.W.2d at 944 (quot ing Armstrong v. Neel , 725 S.W.2d 953, 956

(Tenn. App. 1986)).

Unexcused and unjustified absenteeism may be a basis for

a finding of

misconduct such as to disqualify

a claimant

from receiving unemploy ment compensation benefits. Simmons v. Traughber , 791 S.W.2d 21, 26 (Tenn. 1990). As our supreme court stated in Wallace v . Stewart , 559 S.W.2d 647, 648 (Tenn. 1977), “[n]o aspect of contract of employ

ment is more basic than the rightof the employer

to expect employees will appea r for work on the day

and at the hou r agree d upon.”

Tennessee courts ha ve decli n ed to quantif

y the level o f absent

eeism whi ch will warrant the denial of benefits, instead indicating that such level “must be determined on an ad hoc basis.” Miotke v. Kelley , 713 S.W.2d 910, 913 (Tenn. App. 1986). Courts addressing this issue have denied benefits where the absenteeism is “excessive” or pa rt of a pattern of conduct. See Wallace , 559 S.W.2d a t 648 (c laimant w as discha rged f or excess ive abse

nteeism a fter fou r warnin gs); Miotke , 713 S.W.2d at 913 (after being warned sever al times, claimant continued to b e absent with out notifying employ er); see also Trull v. Culpepper , No. 02A01-9603-CH-00041, 1996 WL 732428, at *4 (Tenn. App. Dec. 20, 1996) (claimant’s absenc es were part of pattern of actions showing substantial disregard for employ er ’s interest). Nevertheless, “[t]he degree of disregard for the employer’sinterest shown by abse nteeism that will equate with misconduct, may involve many factors and the w eight a

nd signif icance to be assi gned them defie s precis e delineation.” Wallace , 559 S.W.2d at 649.

After careful review and considera tion, we concl ude that t

he reco rd in this c ase
c ontains substantia

l and mate

rial evid ence to s upport the

Board’ s ruling

that Jones’ action s constituted misconduct. Jones fa iled to noti fy

Job Shop of hisabsence

from wor k in direct violation of Job Shop’s po licies and proced ures. When contacted by

Job Shop’s personnel coordinator, Jones informed her that

he could not work that day because he had a prior appointment. When Jones was warned that, if he did not go in to work, Job Shop “probably” would not ca ll him anymore, Jones still didnot rep ort for work, n or did he contact Job Shop after that date to inquire about further job1 In so holding, we reje ct Jones’ a rgumen t that the B oard er

red in de nying his request to present additional evidence of the weather conditions on February

16, 1996. At the hearing before the Appeals Tribunal, Job Shop’s personnel coordinator, Janice Nantz, conceded that February 16 was “a bad weather day .” Accordingly , we fail to see how Jones was prejudiced by the Board’s exclusion of additional evidence on this issue. assignm ents. When viewed in their entirety , Jones’ actions evinced a wi llful disr egard of his employ er’s inte rest suc h as to con stitute misc onduct.

Inconcluding that the foregoing evidence suppo rts the Board’s finding of misconduct , we do not mea n to im ply that a single une xcused absence from work necessarily constitutes misconduct

warran ting a denial of

unemploy

ment comp ensation

benefit s. We mere

ly h old that, under the circumstances of this case, the Boar d’s finding of

misconduct is supported by substantial and material evidence. 1

Alternatively, we

note that the record contains substantial and material evidence

to support the co nclusion that Jones was disqualified from receiving unemploy ment compensation because he volunta

rily left his employment without good ca use. See T.C.A. § 50-7-303(a)(1) (Supp. 1996). A voluntary act, or a failure to act, “w it h knowledge that discharge will follow can be considered

a voluntary lea

ving.” Sutton v. Traughber , 1989 WL 48782, at *3 (Tenn. App. May

12, 1989). In Sutton , the claimant violated her employ er’s work rule which provided that, if a n
em ployee was absent for three consecutive day s without calling in, the employee was deemed t o have quit. Id . This court

affirmed the denial of unemploy ment compensation benefits, holding that “given [the employe

r’s] policy and [the claimant’s] knowledge of that policy, her

failure to call in while be in g o ut fr om wo rk fo r t hr ee co ns ec ut iv e d ays amou nted to a voluntary quitting that disqualified her for unemploy ment benefits.” Id . at *4.

In the present case, Job Shop’s policies and procedures required Jones (1) to contact Job Sh op if he was unable to report for work, and (2) to contact Job Shop for his next job assignm ent. These policies and procedures provided that Jones’ failure to c omply would be an indication that he ha

d voluntar

ily q uit. I n light of these pol icies an d proced

ures, Jone s’ failur

e to notify Job Shop of

his absence on February

16, 1996, and his subsequent failure to contact Job Shop for his next job a ssignme

nt amounte d to a volun

tary quitti ng t hat disqualified him from receivingunemploy

ment comp ensation

benefit s.

The trial court’s judgment is affirmed and thi s cause remanded for further proceedings consistent with this opinion. Costs of this appeal are taxed to Appellant, for which execution may is su e i f n ec es sa ry.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ WIL LI AMS, Sp. J. (Co ncurs)