### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 3, 2003 Session
TGJ & CO ., INC . dba A RBY’S ROASTBEEF R ESTAU RANTS v. MICHAEL E. MA GILL, COMMISSIONER , DEPARTME NT OF LABOR

AND WORKFORCE DEVELOPMENT, ET AL 

### . Appeal from the Chancery Court for Knox County No. 154763-1 John F. Weaver, Chancellor FILED AUGUST 28, 2003

No. E2003-00298-COA-R3-CV

Margaret E. Bowers (“the Claimant”) appeals the judg ment of the trial court, which reversed an administrative determination of the Commissioner of the Department of Labor and Workforce Development

(“the Commissioner”). The Commissioner had held that the Claimant is eligible for unemployment

compensation as a re sul t of the ter mina tion of h er e mplo y men

t wi th T GJ &

Co., Inc. (“the Employer”). B ecause we hold that the Claimant voluntarily quit her employment

without good cause, w e affir

m the tria l court. Tenn. R. Civ. P. 3; Judgment of the Chancery Court

Affirmed; Case Remanded

C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined.

Douglas A. Blaze, Nathaniel K. Cherry , Clinic Atto rn ey, an d E li za be th Di lb ec k, Cl in ic At to rn ey, Knoxville, T ennesse e, for the appell ant, Mar garet E. Bowe rs.
Paul G. Summers, Attorney Gene ral and Reporter, and Warren A . Jasper, A ssistant Attorney Genera l, for the appellee, Michael E. Magill, Commissioner, Depar tment of Labor

and Workforce Develop ment.

H. Bruce Guy ton, J. Chadw ic k Hat maker, and Robert L. Va nce, Knoxville, Tennessee, for the appelle e, TGJ & Co. , Inc . dba Arb y’ s Roast Beef Resta urants.
OPINION-2- I.

The Claimant began her employ ment with the Employer on February 27, 2001. She was initially hired as a trainee for the position of restaura ntmanager at the Employ

er’s Arby ’s Roast Beef Re stauran ts. Until August, 2001, the Claimant worked at the Employ er’s Broadway Street restaurant
an d earned $425 per week. The Claimant did not prog ress in her training as rap idly as had bee n anticipated. In August, she was move d to the Magnolia Avenue restaurant and the n later to the Employer’s Gay

Street loc ation. The se last two moves were to lower volume restaurants where the Employer hoped the Claimant

might be better a ble to master

the requ isite mana

geria l skills. B ecause she was placed on the night shift at both locations, her salary increased to $450.

After being transferred to the Employ er’s Gay Street restaurant, the Claimant fa iled to properl y close the restaur ant on two

straight evenin gs. The Claimant failed to turn off the ovens and
warmers on one occasion, and on the next evening, she lost the register tapes record ing the ent ire d ay’s sales. The following day , the Claimant was informed by he r supervisors that she would no longer be working for the

Employer as a ma

nager. Prior to these events, the Employ er generally

had notbeen ple ased with

the Claima

nt’s prog ress as a manage r in training. She was late or absent from work an unacceptable number of times. Never theless, no disciplinary ac tion was taken against her. A witness f

or the Emp loy er testif

ied that th e trainin g proc ess for

managers normally

lasts 12 to 14 weeks. In the Claimant’s case, her training was ongoing when he r job as mana ger ended on November 7, 2001, some 10 months after she was hired.

After informing the Claimant that she would no longer be a manag er, the supervisors proposed continued employme nt to the Claimant as an hourly worke r. The Claimant testified that she was too upset at the time to l i sten to the Employer’s proposition reg arding her continued employ ment. The Claimant further testified that because the Employ er’s policies did not allow for any guara nteed num

ber of ho urs as an hourly worker , she woul d notfind any offer to be acce ptable work. From the Claimant’ s experie nce as a manage r, most hou

rly workers made $6.25 while shift leader s made $7. 00. She te stified th at hourly worker s gene

rally did not wor

k full 40- hour wee

ks.

The Employer did not require the Claimant to make an immediate decision regarding a new job assignment. This apparently was in deference to her upset state. The Claimant w as give

n time to decide what she wanted to do. I f she were willing to accept a new position, she was to report for reassignment. The Claimant left the Employ er’s restaurant and never re turned.

II.

The Claimant f

il ed for unemployment compensation bene fits on November 27, 2001. On her initial ap

plication for bene fits, she s tated tha

t s he qu it her job at Arby’s. The Claimant’s application for unemployment bene fits was granted by

an Agency

Decision. The Employer

pursued review with the Appeals Tribunal which held a hearing a nd made findings of fact and conclusions of law. The Appeals Tribunal upheld the Agency Decision. T he Emp loyer then appe aled to the Board of Review which affirmed and adopted the findin gs and c onclusion s of the Ap peals Tr ibunal.-3-

As previously mentioned, the Employ er then appea

led to the Chancery

Court which reversed, holding that “the [C] laimant’s termination of her discussion with her employ er concerning her willingness to work at

lesser employment status, commensura te with her

abilities, together with her failure to make herself available to discuss her c ontinued employment and to repor t back to work, constitutes the failure, without good cause, to make herself available for work.”

III.

The decision o f the Appeals Tribunal, adopted by the Board of Review, states in pertinent part, as follows:

On Novemb e r 27, 2001, the [C]laimant field an initial claim for unemployment

benefits which was approved. On Dece mber 20, 2001, the above mentioned employer wa s notified of the approval of the claim and on D ecemb er 27, 2001, filed an appeal aga inst the payment of benefits to the [C]laimant on the basis that the c laimant should be disqualified for either voluntarily quitting without good
cause connec ted to work

under [Tenn. Code Ann.] § 50-7-303(a)(1)
or for being discharged f

or misconduct connected t o work under [Tenn. Code Ann. ] § 50-7-30 3(a)(2 ). After due notic e to all interestedparties, a hearing was schedule d on this ca se in Knoxville, TN, on Wednesd ay , Febru ary 13, 2002, a

t w hich time [C]laimant testified

. . . . After carefully considering thetestimony and the entire record in th e case, the Ap peals Tribu nal ma kes th e foll owing:

FINDI NGS OF FACT : Claimant’ s most recent employ ment prior

to filing this claim was with Arby ’s from F ebruar y 2, 2001 until November

15, 20 01 as a resta urant manage r. The employer had problems with the [C]laimant’s attendance as she was absent or late for work. Despite the problem, the [C]laimant w as not given a written warning

that h erjob was in jeopardy due to her attendance problem. The [E]mployer also had problems with t he [C]laimant’s work performance as she ha

d diff iculty . . . learning

how to run the restaur ant. The [C]laimant ma

de [a] numbe

r of mista kes as she lost t he register tape and inadvertently left the store oven on befor e closing the store . As a re sult of the se proble ms, the de cisi on was made to terminate the [C]l aimant’s position as manager. The [C]laimant was informed that she could ac cept ano ther position as a regular employ

ee, but the [C]laimant declined the position.

CON CLUSION S OF L AW: The App eals Tri

bunal fin ds tha t [C]lai mant is eligible to receive unemploy ment compensation benefit s. The issue

is w hether the [C]laimant was discharged for-4- work-related

misconduct under [Tenn. Code Ann.] § 50-7-303(a)(2). Misco nduct

is intentional behavior or conduct by an employee

t ha t materia lly breach es a duty the emplo ye e owes to

the employ

er. While the [C]laimant owed the duty to be at work on time for her scheduled shiftas well as th e d ut y to ab id e b y th e c om pa ny’ s a tt en da nc e p ol ic y, there is no evide

nce in the

record that [C]laima

nt w as giv en any written warning s that herjob was in jeopardy because of her attendance problem. Also, the [C]l aimant ow ed the dut y to properl y perform the job dut

ies assigned to her. However, the [C]laimant was merely not able to comprehen d and p erform the job duties of a manage r
. The [C]laimant made mistakes and did not meet the company standards in perfor

ming her job duties as a mana

ger. T hus, the claimant was in essence terminated for unsatisfactory work performance

. . . . The [E]mployer has failed to meet its burden of proof and the r ecord f ails to establish work-related misconduct under [Tenn. Code Ann.] § 50-7-303(a)(2).

DECI SI ON: T he Age

ncy Decision is affir med. The

[C]laimant is eligible for unemployment bene fits. The [E]mployer a ppeal is denied.

IV.

On app eal, the Claimant contends (1) that she was, as the Commissioner repeatedly held, terminated by

the Employer, see Tenn. Code Ann. § 50-7-30 3(a)(1 ) (Supp. 2 002); (2) that she d id notengag e in any

misconduct resultin g in ter mination a s d efine d in Tenn. Code Ann. § 50-7- 303(a)(2) (Supp. 2002); (3) that she did not fail without good cause to accept suitable work from the Employer, see Tenn. Code Ann. § 50-7-303(a)(3) (Supp. 2002); and (4) that the trial court abused its discretion and made unsupp orted findings of fact in reversing the Commissioner’s determination s
. V.

Trial c ourt s and appellate courts employ the same standard of review when re viewing decisions of administrative agencies. Armstrong v. Neel , 725 S.W.2d 953, 955 n.1 (Tenn. Ct. App. 1986). The standard, framed in terms of the trial cou rt’s rev iew and a s applica

ble to the case before us, is as f ollows.

The chancellor may

affirm the decision of

the board or the chancellor may reverse, re mand or modify the decision if the rig hts of the petitioner have been

prejudic ed beca

use the a dministra tive findings, inferences, conclusions or decisions are:

* * *1 As we read this sentence, “its ” refers t o the evidence supporting the deci sion reach ed by the Commissioner.
-5- (E) Unsupported by evidence which is both substantial and material in the light of the entire record. (3) In determining the substantiality of evidenc e, the ch

ancellor shall take into acco unt whatev er in the r ecord fai rly detra cts from i ts 1 weight, but the chancellor shall not substitute the cha ncellor’s judgment for that of th e board of r eview a s to the weight of the evidence on questions of fact

. . . . Tenn. Code Ann. § 50-7-304(i)(2)-(3) (1999) (emphasis adde d). It is well-settled that the issue of whether an employ ee has voluntarily quit his or her employment without good ca use is a question of law upon which we may

make an independent determination based upon the facts in the record. Cooperv. Burson , 221 Tenn. 621, 626-67, 429 S.W.2d 424, 426 (1968); McPherson v. Stokes , 954 S.W.2d 749, 751 ( Tenn. Ct. A pp. 1997) ; Long v. Traughber , No. 1380, 1 991 WL 2591 7, at * 2 (Tenn. Ct. App. E.S., March 4, 1991). We are required to construe the disqualification provisions of Tenn. Code Ann. § 50-7-303 liberally in favor of employees. Simmons v. Culpepper , 937 S.W.2d 938, 944 (Tenn. Ct. App. 1996).

VI.

Gener ally speak ing, Tennessee employment sec urity laws wer e enact ed to alle viate ec onomic insecur ity due to unemployment cau sed byno fault of the employe e. See Tenn. Code Ann. § 50-7-102 (1999); see also Ford v. Traughber , 813 S.W.2d 141, 1 43 (Tenn . Ct. App. 1991). However, Tenn. Code Ann. § 50-7-303(a) lay s out circ umstan ces that disqualify employ ees from receiving une

mploy ment bene

fits. Tha t subsect ion provid

es, in per tinent pa rt, as fo llows:

D ISQ UALI FYI NG E VENTS . A claimant shall be disqualified fo r benefit s: (1) If the administrator finds that the claimant hasleft such claimant’s most re cent w ork voluntarily without good c ause connected with such claimant’s work. . . . (2) If the administrator finds that a claimant has been discharged from such claimant ’s mos t recen t work for

misconduct connec ted with such claimant’s work, . . .
(3) If the administrator finds that the claimant has failed

without good cause, either to apply for

ava il able, suitable work, when so directed by the employment office , or the administrator, or to accept suitable work when offered. . . . I

n determining whether

or no t any

work is-6- suitable for a claimant, the administrator shall consider the degree of risk involved to the claiman t’s health, safety and morals, the claimant’s physical fi tness and prior training, the claimant’s expe rience and prior earni ngs, the claimant’s length of unemploy ment and prospects for securing local work in the claimant’s customary occupation, and the distance of the available work from the claimant’s residence. . . .
Id.

VII.

The language of

Tenn. Code Ann. § 50-7-304(i)(3) – as set forth and emphasized in Section V of this opinion – does not appear to have been extensively discussed in the appellate decisions of t his state. We h ave pre

viously stated tha

t this lang

uage s imply

means “our revie

w in this ca se in volves a determination of whether there is substantial and material e vidence to support th e [Commissione

r’s] legal conclusion . . . .” Simmons , 937 S .W.2d at 94 3. We

have also stated that th e evidence adduced below must be “both substantial and materia l in light of the entire record.” Estate of Milton v. Comm’r , No. 03A01-9710-CH-00449, 1998 WL 282919, at *1 (Tenn. Ct. App. E.S., May 19, 1998).

The United Sta

tes Supre me Court, in discussing the concept of “substantial” evidence unde r the Natio nal L abor Rela

tions Act, address ed the iss ue as follows:

To be sure, the requirement fo r canvass ing “the whole re cord” in order to ascer tai n substantiality does not furnish a calc ulus of value by which a reviewing court can a ssess the eviden ce. No r was it intended to negative the function of the Labor Boa

rd as one of

those agencies presuma

bly equipped or infor me d by exp erienc e to deal

with
a specialized field of knowledge, wh ose fin dings within that f ield carry the authority of an

expertness which courts do not possess and thereforemust

respect. Nor does it mean that even as to matters not requiring expertise a court may displac e the Board’s choice between two fairly conflicting views, even though the court wo uld justifi ably have made a dif

ferent choice h ad the ma

tter bee n before it de novo

. Congre ss has merely ma

de it clear that a reviewing court is not barred from setti ng aside

a Boar d decisio n when it c annot con scientiou sly find that the evidence supporting that decision is substantial, when viewedin the light tha

t the rec ord in its e

ntirety furnishes, including the body of evidenc e opposed to the Board’s view.
Uni versal Camera Corp. v. Nat’l Labor Relations Bd. , 340 U.S. 474, 488, 71 S.Ct. 456, 4 65, 9 5 L. Ed . 456 (195 1); see also Coronet Foods, Inc. v. Nat’l Labor Relations Bd. , 158 F.3d 782, 789-7-

(4th Cir. 1998). We find the United States Supreme Court’s view that reversal of an administrative board is appropriate when a “reviewing court . . . ca nn ot conscientiously find that the evidenc e supporting that decision is substantial, when viewed in the light that the record in it s entiret

y furnishe s” is a reaso nable ap proach t o the conc ept of “s ubstantia l” evide nce. We a

dopt it as th

e general criteria to be applied in determining whether there is substantial evidence to support a n administrative decision under the Tennessee unemploy ment compensation scheme. Reviewing the record before us, we find one fact explicitly found by the Appeals Tribunal to be critical: “[T]he [C]laimant declined the position.” However, as a matter of law, we draw a different conclusion as to the significance of this fact. As previously discussed, the Claimant refused to discuss the possib ility

of a new position with the Em ployer. As the Claimant testified, af ter learning that she w ould no long er be a manage r, she be came too

distresse d to talk

a bout a new position with the Employer. When the Claimant left the Gay

Street restaurant after being strippe d of her managerial position, she presumably was still in the employ

of the Emp loy er. Fro m the cas e of Wallace v. Sullivan , 561 S.W.2d 452 (Tenn. 1978), it is clear that a reduction in pay associated witha demotion in position does not necessarily a mount to termination. See id. at 454. In the instant case, the Employer cle arly advised the Claimant that she could continue to wor k for it. The only
reason the details of he r co ntinued employment were not then spelled out was the Claimant’s decision at that time that she did not want to discuss it. The Employer advised the Claimantthat she could come back the next day and talk ab o ut her ne w position i n detail. Being upset abo

ut a demotion, without more, cannot amount to good cause to quit or re fuse a jo b. Furth ermore , becau se the Claimant n ever pur sued any further discussio n about wh at this n ew p osition would entail, we have no way of knowing

precisely w

hat the offer would have involved. Although we are to construe the unemplo yment compensation statutes libera lly in favor of the e

mployee, we simply

can not charg e employers with the re sponsibility of forcing c urrent employe es to listen to offers for alternative employment. There

fore, we hold that the Claimant quit her job without good cause.

We hold that the undisputed ev id ence of the inabi lity

or unwilli ngness of the Cla imant to discuss other work at

Arby’s on the da

y she was reli eved of h

er mana geria l duties and her fa

ilure to return to he a r what her new job would entail so “detracts” fr om the substantiality of the evidence supporting the Commissioner’s decision as to deprive that decision of a “substant ial” e videntiary ba si s. Like the court below, we hold that the Claimant’s unwilling ness to discuss the details of a
new position and her failure to report for this new position — due to no fault of the Employ er — disqualifies her from eligibility f or unemployment benef

its pursuant to Tenn. Code Ann. § 50-7- 303(a)(1) & (3).

VIII.

The ruling of the trial court is affirmed. Costs on appeal are taxed to the appellant, Margaret E. Bowers. This case is remanded to the trial cour t for collection of costs assessed there.

_______________________________ CHARLES D. SUSANO, JR., JUDGE