# FILED
May 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk Aub rey L. G ill ey, ) Appeal N o. Petitione r/Appell ant, ) 01-A-01- 9611-CH- 00521 v. ) Margaret Culpepper, as Comm issioner) of the Tennessee Department of ) Rule No. Empl oym ent Secur ity and Forklifts ) 95-3496-II Unlimited, Inc. ) Respondents/Appellees )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

JEFFREY RAPPUHN Willis & Knight 215 Second A

venue Nor

th Nashville , Tenne ssee 37201 ATTORNEY FOR PETITIONER/APPELLANT

GEORGE E . COPPLE, JR. Suite 218, 172 Second A venue, N orth Nashville , Tenne ssee 37201 ATTORNEY FOR RESPONDENT/APPELLEE FORKLIFTS U

NLIMITED, INC.

CHARLES W. BURSON Attorney General and Reporter KIMBERLY M. FRAYN Assistant Attorney General 2nd Floor, Cordell H

ull Bldg. 426 Fifth Avenue, N orth Nashville , Tenne ssee 37243- 0499 ATTORNEYS FOR RESPONDENT/APPELLEE MARGARET C. CULPE PPER, as Com

missio ner of the Tenne ssee Dep artm

ent of Em ploym ent Secur ity

REVERSED AND REMANDED

SAMUEL L. LEWIS, JUDGE2 

## O PINION

This is an appeal

by peti tioner/app ellant, A ubrey L. Gil ley, from

the decisi on of the cha ncery court af firm ing the decision

of the Boa

rd of Revi ew for r

espondent /appellee, the Tennessee Department of Employm ent Security, to deny

Mr. Gilley unemploym

ent compensation benefits. The facts out of which this matter

arose are as follow s. Respondent/appellee, Forkl if ts Unlimited, Inc. (“

Forklifts”), employ ed Mr. Gilley from 3 Septem

ber 1993 through 8 N ovembe r 1994. Pr

ior to Sept

embe r 1993, Mr. Gilley was convicted of reckless driving and was ordered to pay a fine and court costs of mo re th an $700.00. Mr. Gi lley m ade m inima l paym ents of ten

to twenty dollars each mont h. In lat e 19 93 o r ear ly 19 94, Mr. Gi lle y experi enced severe financial difficult

ies as a r esult of a divorce. He quit m aking the monthly pa

ym ents, and the Sta

te suspende d his licenc e in either August or S eptem

ber 1994.

Mr. Gilley drove to various job sites as part of hi s job; thus, a condition of his emplo ym ent was that he have a v alid drive

r’s lic ense. F orklifts learned the State had suspended Mr . Gilley’s license and inform

ed Mr. G illey it would ha

ve to term

inate him if he di d not get his l icense reinstated. Mr. Gi lley di d not have the money to rei ns tat e hi s l ice ns e, a nd For kl ift s t ermi nat ed h im.

Mr. Gil ley applied fo r unemployment benefit s on 20 Ju ne 1995. Th e Te nnessee Departm

ent of Em

ploym ent Secur ity denied Mr. G

illey’ s requ est fo r benefits on 3 July 199 5. Th e agency foun d as follows: “Claimant was discharged from most rece nt employm

ent because driver’s license was suspended. Evidence shows thatthe job required a valid driver’s license. This is considered work-related misco nduct. Claim is denied under TCA 50-7 -303.” Mr. Gilleyappealed. The Appeals T

ribunal’ s decision pr

ovided, in p art, as follows: FINDINGS OF FACT: . . . The claima nt was involved in sev e ral accident s while on th e job. H e had also rec eived a traffic c itation for reckless driving pri or to his em ploym ent . As a re sult , the cl aimant’s driv er’s license w as suspende d andthe employer’ s insurance compa ny refused to cover the cl aimant while dri ving a company veh icle. . . .1 “(a) D IS QUALI FYI NG E VENTS . A c lai man t s hal l b e di squ ali fie d fo r be nef it s: . . . (2) If the commissioner finds that a claimant has been discharged from such claimant's most recent work for misconduct connected with such claimant's w ork . . . .” Tenn. Code Ann. § 50-7- 303(a)(2) (Supp. 1996). 3 CONCLUSIONS OF LAW: . . . The issue is whether the claim ant was discharged for m

isconduct c onnected w ith work a nd theref ore is disqual ifi ed for benefits, as provided in TCA 50-7-303(a)(2). 1 The clai mant ’s employment was con ting ent u pon h im havi ng a d river ’s license. His drive

r’s lic ense was suspended bec ause he re ceived a citation for rec kless drivi ng and beca use he wa s i nvolve d in several accident s. . . . T

he claim ant lost his job because his driver’s license was suspended as a result of the m anner in which he operated m otor vehicles. Misconduct

is intention al behavior

that m aterially brea

ches a dutythe em

ployee owes the employer. The claimant owed the em ployer a duty of driving in such a manner so as to keep his license. Thereafter, the Appea

ls Tribuna

l affirm ed the age ncy ’s decision. Mr. Gilley then appealed t o the Board of Review (“th e Board” ). The

Board ado pted the A

ppeals Tr ibun al’s finding s of fact and conclusi ons of law an d affirmed the Ap peal s Tribunal ’s deci sion.
Next, Mr. Gilley filed a petition for w rit of certiorari in the chancery court. The petition alleged th e Board m

isapplied T ennessee law for deter mining an ind ivid ual’s entitlem ent to unem ploym ent com pensation benefit s, t he Board’s decision was arbitraryand capri cious, and the Board’s findings were not supported by substantial and material evidence. After a hearing , the cour t affirm ed the Boa

rd’s de cision. The courtfound “[t]he petiti oner’s license w as suspende d by the State of Tennesse e in November

1994 and for

tha t reason the petitioner was terminated.” T he court then concluded as follows: “The m isconduct in this case was failing to pay a fine to maintain a driver’s lice nse. . . . Given these circumstance, this Court can not say that the decision of

the Board

of Review

is arbitra ry or is unsupporte d by substantial and materialevidence.” Mr. Gilley filed a ti mely

motion to alter or am

end claim ing the Board ’s decision w as w ithout basis in law or fact. T he court denied the m

otion on 28 August 1996 . Mr. G

illey filed a ti mely

notice of a

ppeal.

I. The Standard of Review

T he st andard of review i n cases suc h as this is se t forth in T ennessee C ode Annotated

section 50- 7-304(I) . This se ction provides:2 This finding appears in both the findings of fact a nd the conclusions of law portions of the Appe als Tribu

nal’s de cision. I

t is the opin

ion of this c ourt that t

his is a finding of f

act, not a conclusion of law. 4 (2) The chancellor ma y affi rm the deci sion of the b oard or the chancel lor

may reverse , remand or m

odify t he decision

if the rig ht s o f the petitioner

have been prejudic ed because the adm inistrativ e findings, inferences, conclusions or decisions are: (A) In v iolation of

constitution al or stat

utory provisions; (B) I n ex ces s of

the sta tut ory au tho rit y of th e ag enc y; (C) Made upon unlawful procedure; (D) Arbitrary or capricious or chara cterized by abuse of dis cretion or clear ly unw arrante d exercis e of discr etion; or (E) Unsupporte d by evi dence which is both substant ial and mate rial in the light of the

entire r ecord. (3) In determ

ining thesubstantiality of evidence , the cha

ncellor sh all take into account whatever i n the record fairl y detracts from its weight , but the chanc ellor shal l not substitut e the chan cellor' s judgm

ent for that of the board o f review

as to the w eight

of the evidence on que stions of fact. No decisi on of

the board shall be reversed, remanded or modified by the chancellor unless for errors which affect the m erits of the final decision of the boar d. Tenn. Code Ann. § 50-7-304( i)(2)&( 3) (Supp. 1996). T he sam e standar d applies to this cou rt. Armstrong v. Neel , 725 S.W.2d 953 , 955 n.1 (Ten n. App. 1986 ).

This statute not

only sets forth the

standard o f review , but it also establishes which decision the court is to review. Basedon the plain language of

the statute , this court ’s role is to review the Boar d’s dec ision, not t he chance

ry cou rt’s de cision. Thus, in this ca se, we must l ook to the Appe al Tribun al’s re asoning bec ause the Boa rd a do pt ed t hat rea so ni ng as t he b asi s o f it s d eci si on to aff irm.

This i s an im

portant dist

inction bec ause the va

rious bodies exam

ining the evidence in this case have come to different conclusions. To explai n, the agen cy initially determ ined M r. Gill ey was discharged because his driver’s license was sus pended. The age ncy did not provide any fu

rther exp lanation. The Appe als Tribunal also found Mr. Gill ey lost his job be cause his dri ver’s license was suspended. In addition , theAppeals T ribunal fo und the suspe nsion was t he result o f Mr. Gilley

receivin g areckless driving cit ation and ha ving severa

l acciden ts while on the job. 2 The Boa

rd adopted a

nd affirm ed this finding of fact. Finally, the chancery courtalso agre ed Mr. G illey was disch arge d because his driver’s license was suspended. The chan cery court, however, concluded the license was suspended3 Mr. Gilley arg ues there was insufficient evidence to support the finding that Mr. Gilley was involved in “several” accidents bec ause the evidence only showed that Mr. Gilley wa s at fault in two of the accidents. Mr. Gilley ’s arguments are without merit. Regar dless of whether he was a t fault, he was involv ed in three accid ents. 5 because Mr. G illey had failed to pay the fine res ulting from

his reckle ss driving citation. The Appeals Tribunal’s decision does not even mention Mr. Gilley’s failure to pay the fine.

II. Findings of Fact

The evidence in this case c onsisted of the testimony of Mr. Gilley and Mr. Douglas Carrigan, the president of Forklifts. The adm inistrative record also included the documents com

pleted by Mr. Gi lley when he appli ed for une mploym ent and a statem ent from Mr. Ca

rrigan regarding Mr. Gilley’s term ination. Finally, there was
aletter from State Fa

rm, Forklifts’ insuran ce compan y, to Mr. Car rigan reg arding Stat e Far ms’ in abi lit y to i nsu re Mr . Gil ley.

The administrative

findings w ere all s upported by substantia

l and material evidence save one. Specifi cally , thefinding that the St ate su spen ded Mr . Gille y’s license as a result of Mr. Gilley receiving a r eckless dri ving citati on and having
sev eral accidents while on the job is not supported by any evidence. T her e i s substantial and material evidence that Mr. Gilley receive d a citati on and a fin e for reckless driving. T

here is also substa

ntial and material evidence that Mr. Gilley had several, that is m

ore than tw o, accidents while on the job. 3 There i s, however, no evidence these two facts were the re ason why the S tate s uspe nded Mr. Gil ley’s license. Mr. Gilley re

ported in his application for unemployment that his license was revoked because h e “got

behind in a w

reckless [sic] driving fine.” He later testified atthe hearing that “[t]he suspension cam e as a resul t of faili ng to ma ke monthly paym ents.” T here wa s no evidenc e that cont radicted Mr. Gi lley’ s statem

ents.
III. Conclus ion

Pursuant to Tennessee Code Annotated section 50-7-304(i)(3) this court may not reverse, remand, or modify a decision of the B oard unl ess the er ror aff ects the meri ts of th e case. It is the opinion of this court that this error is significan t an d4 “(a) D IS QUALI FYI NG E VENTS . A claimant shall be disqualified for benefits: (1) I f the commissioner findsthat the c laimant ha s left such claiman t's most r ecent w ork volunt

arily without good cause connected with such claimant' s work.” Tenn. Code Ann. § 50-7-303(a)(1) (Supp. 1996).

6 certainly affects the merits of this cas e. T o ex plain, the Board re lied on the administrative

finding at issue to conclude Mr. Gill ey bre ached a dut y owe d to Forklifts

. Because Mr. Gilley breache d his duty

to Forklif

ts, the Bo ard held

he was guilty o f mis conduct connected w ith work a nd denied him

benefits pursuant to Tennessee Code Annotated section 50-7-303(a)(2).

The notice of i n-perso n hea ring sent toMr. Gi lley f rom t he Depar tment contained a statem

ent of the issue s in the cas e. This statem ent include d the issues of whether Tennesse e Code Annot a ted sectio n 5-7-303(a )(1) 4 or (2) exempted Mr. Gilley from

the receipt of

benefits. None of the decisions filed in this case addressed the issue of

whether Tenn. C ode Ann. § 50-7-303( a)(1) a pplied to the facts presented here. Thus, it

is the opinio n of this cou rt that the

case shoul d be remanded for considera tion of the u naddresse d issue and f or any further necessar

y proc eedings.
Therefore, it follow s that the de cision of th e chance ry cou rt is reverse d, and the
case is remanded to the

Departm ent for c onsiderati on of whet her Tenn essee Code Annotated section 50- 7-303(a)( 1) applies to Mr. G illey’ s caseand for a ny further necessary proceedin gs. Costs on appeal are taxed to respondents/appellees, Margaret Culpepper, as Comm

issioner of theTenn ess ee De par tment of Emp loymen t Sec uri ty, and Forklifts Unlimited, Inc.

_________________ ____________ SAMUEL L . LEWIS, JUDGE CONCUR:

_______________________________ BEN H. CANTRELL , JUDGE WILL IAM C. KOCH, JR, JUDGE, CONCURRING I

N SEPARATE OPINION