IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 22, 2013

RENITA DULANEY v. KARLA DAVIS, COMMISSIONER OF

TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE

DEVELOPMENT and FEDERAL EXPRESS

Direct Appeal from the Chancery Court for Shelby County

No. CH-11-1193-1 Walter L. Evans, Chancellor

No. W2012-01020-COA-R3-CV - Filed April 24, 2013

This case involves a claimant’sright to unemployment compensation benefits. After initially

being awarded such benefits, claimant was denied benefits based upon a finding that she had

refused to return to her former position after being medically released to do so. The chancery

court, however, reinstated her benefits concluding that her due process rights had been

violated when a telephone hearing–as opposed to a face-to-face hearing–was conducted. We

reverse the chancery court’s conclusion that the telephonic hearing violated claimant’s due

process rights and we dismiss the case.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed

and Dismissed

ALAN E.HIGHERS, P.J.,W.S., delivered the opinion of the Court, in which DAVID R. FARMER,

J., and HOLLY M. KIRBY, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter, Warren Jasper, Senior Counsel,

Nashville, Tennessee, for the appellant, Karla Davis, Commissioner, Department of Labor

and Workforce Development

No appearance on behalf of the appellee, Renita Dulaney

MEMORANDUM OPINION

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Rule 10 of the Rules of the Court of Appeals of Tennessee states: 1

(continued...)
I. FACTS & PROCEDURAL HISTORY

Renita Dulaney was employed by Federal Express (“FedEx”) from February 1998 to

January 13, 2011, last working as a ramp agent. On March 14, 2010, Ms. Dulaney

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sustained a work-related injury when her “back went out[,]” and she was placed on leave

from March 23 to August 11, 2010 during which time she received workers’ compensation

benefits. On July 12, 2010, Ms. Dulaney was examined by a physician who stated in an

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“Employment Report” that she could return to work immediately subject to certain physical

restrictions:

The patient is restricted to 5 pounds continuous lifting, 10 pounds intermittent

lifting and 2 hours of continuous sitting, 2 hours continuous standing, 2 hours

continuous walking; and restricted from climbing, kneeling, bending,stooping,

twisting, push/pull, reaching and lifting over the shoulder activity, driving at

work and operating machinery. There are no other restrictions.

Ms. Dulaney apparently returned to work on August 11, 2010 subject to these

restrictions.

Later in August 2010, the physical restrictions were lifted by an employer-selectedphysician, and Ms. Dulaney attempted to return to full duty. However, she continued to

complain of difficulty in performing her duties as a ramp agent, and she was again placed on

leave pending another employer-selected-physician evaluation. The physician again released

Ms. Dulaney to full-duty on September 3, 2010. However, during this time period, Ms.

Dulaney contacted her primary physician, Dr. Leal, who, on September 9, 2010, provided a

ten-day work “Excuse Slip” covering early to mid-September due to “severe lower back

(...continued) 1

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

According to the Tennessee Department of Labor and Workforce Development, Employment 2

Security Division, Appeals Tribunal, Ms. Dulaney’s job as a ramp agent required her to “push and pull

items.” 

It is unclear whether this physician was employee-selected or employer-selected. 3

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pain[.]” According to Ms. Dulaney, Dr. Leal arranged for her to see a specialist, but the

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specialist refused to see her after learning that she was involved in a workers’ compensation

case.

In a September 8, 2010 letter from FedEx, Ms. Dulaney was notified that she had been

released to return to regular duty work by the employer-selected-physician, and thatshe could

either: (1) return to her former position as a ramp agent effective September 11, 2010; (2)

take a 90-day personal leave of absence during which time she could apply for other

positions with the company for which she was qualified; or (3) voluntarily resign her

employment with FedEx. Ms. Dulaney selected the 90-day leave option, and during this

period she applied for three positions. However, FedEx determined that Ms. Dulaney did not

meet the minimum qualifications for two of the positions and that her application packet was

incomplete regarding the third position. Thus, Ms. Dulaney did not secure another position

within the company.

In November 2010, Ms. Dulaney self-arranged an appointment at The Wootton Clinic

and Medical Center, where a nurse practitioner supplied a “Work Release” for the period of

December 6, 2010 to January 2, 2011 due to her being treated for “lumbar IVD and

sciatica[.]” However, the Work Release indicated that Ms. Dulaney could return to full duty

on January 3, 2011. Ms. Dulaney never returned to work, and on January 13, 2011, FedEx

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terminated Ms. Dulaney’s employment.

On January 27, 2011, Ms. Dulaney filed a claim for unemployment benefits, and

FedEx responded by contending that Ms. Dulaney had voluntarily terminated her

employment and requesting a determination of her eligibility for such benefits by the

Tennessee Department of Labor and Workforce Development (the “Agency”). On February

22, 2011 the Agency’s Division of Employment Security rendered its “Agency Decision” in

which it approved Ms. Dulaney’s claim. The Agency found that Ms. Dulaney was unable to

continue performing her “usual work” and that FedEx had failed to offer her work which she

could physically perform.

On March 8, 2011, FedEx appealed the Agency Decision to the Agency’s Appeals

Tribunal, again claiming that Ms. Dulaney had voluntarily terminated her employment by

declining to return to her former position after being released to full duty. FedEx requested

a telephone hearing before the Appeals Tribunal.

This information is taken from the transcript of the April 18, 2011 hearing before the Appeals 4

Tribunal. 

The Work Release erroneously lists two of the dates as 2010 rather than as 2011. 5

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On April 6, 2011, the Appeals Tribunal sent Ms. Dulaney a “Notice of Telephone

Hearing” scheduled for April 18, 2011. The hearing was held telephonically as scheduled,

with Ms. Dulaney representing herself. On April 19, 2011, the Appeals Tribunal issued its

“Decision of Appeals Tribunal” finding that Ms. Dulaney had failed to return to work as a

ramp agent although she had been medically released to do so, and concluding that she had

not left her employment for good cause and therefore was not entitled to unemployment

benefits under Tennessee Code Annotated section 50-7-303(a)(1).

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On April 26, 2011, Ms. Dulaney appealed the decision of the Appeals Tribunal to the

Agency’s Commissioner’s Designee, and she requested a hearing to present additional

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evidence. The Commissioner’s Designee denied Ms. Dulaney’s request for an additional

hearing, finding that “none of the[] documents would affect the outcome of th[e] case,” and

it affirmed the decision of the Appeals Tribunal–that Ms. Dulaney was not eligible for

unemployment benefits because she had failed to “accept her former job when it was offered

to her after being medically released to return to work.”

Ms. Dulaney filed a Petition forJudicial Review in the ShelbyCounty Chancery Court

on July 19, 2011, claiming a myriad of errors by the Commissioner’s Designee. Following

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Tennessee Code Annotated section 50-7-303(a)(1)(A) disqualifies a claimant from receiving 6

benefits “[i]f the administrator finds that the claimant has left the claimant’s most recent work voluntarily

without good cause connected with the claimant’s work.” 

Ms. Dulaney filed her appeal with the Agency’s Board of Review, which has since been replaced

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by the Commissioner’s Designee. 

Ms. Dulaney argued that the decision of the Commissioner’s Designee should be reversed because

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it was “in violation of constitutional or statutory provisions, made upon unlawful procedure, arbitrary and

capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, and

unsupported by evidence that is both substantial and material in light of the entire record.” Specifically, Ms.

Dulaney claimed:

The decisions of the [Commissioner’s Designee] are in violation of constitutional or

statutory provision and made upon unlawful procedure in that the board made its decisions

in a fashion that denied petitioner her right to due process of law. Pursuant to Tenn. Code

Ann. section 50-7-304, the [Commissioner’s Desginee] had the options of deciding the case

bas[ed] on the evidence previously submitted or directing the taking of additional evidence.

The [Commissioner’s Designee] did neither. Instead, without directing the taking of

additional evidence, it relied upon information not in the record in making its decisions. .

. . it relied upon a letter and attachments mailed to it by Federal Express without providing

any opportunity for petitioner to confront the statements in those documents, it relied upon

uncorroborated hearsay, it relied upon what it characterized as the heated tone of a letter

(continued...)

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a hearing on February 14, 2011, the chancery court entered its Order on Judicial Review in

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which it reversed the decision of the Commissioner’s Designee based upon its finding that

Ms. Dulaney had been “deprived . . . of adequate due process and the ability to confront and

examine the credibility of the witnesses against her” when she “was denied a face to face inperson hearing, and instead only participated in a telephone hearing before the . . . Appeals

Tribunal.” Based upon this finding, the chancery court awarded Ms. Dulaney unemployment

compensation benefits.

The Tennessee Department of Labor and Workforce Development timely appealed

to this Court. Neither Ms. Dulaney nor FedEx filed a brief in this case, and by Order of

March 11, 2013, the matter was submitted for decision upon the record and the Agency’s

brief.

II. ISSUES PRESENTED

The Agency presents the following issues for review:

1. Whether the trial court erred in its determination that Ms. Dulaney was entitled to an

“in person” hearing; and

2. Whether there is substantial and material evidence in the record to support the

Agency’s finding, and a reasonable basis in law to support the Agency’s conclusion

that Ms. Dulaney voluntarily quit her job without good cause.

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For the following reasons, we reverse the chancery court’s conclusion that the telephonic

hearing violated Ms. Dulaney’s due process rights and we dismiss the case.

(...continued) 8

written to the [Commissioner’s Designee] by petitioner, it improperly and expressly placed

the burden of proof on the petitioner, it failed to transcribe the Appeals Tribunal hearing and

review the transcript as required by Tenn. Code Ann. section 50-7-304, it failed to rely upon

the recorded testimony from the Appeals Tribunal. It failed to allow petitioner the right to

voice her rights in public.”

Neither a transcript nor a statement of the evidence from this hearing is included in the record on 9

appeal. 

Ms. Dulaney did not file an appellate brief. 10

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III. DISCUSSION

As stated above, the chancery court reversed the decision of the Commissioner’s

Designee–that Ms. Dulaney was not entitled to unemployment benefits–because it concluded

that her due process rights were violated when the Appeals Tribunal hearing was conducted

telephonically as opposed to face-to-face. The court’s explanation, in its entirety, is as

follows:

It appears to the Court, and the Court finds, that the Petitioner was

denied a face to face in-person hearing, and instead only participated in a

telephone hearing before the Department of Labor & Workforce Development

Appeals Tribunal. This deprived the Petitioner of adequate due process and

the ability to confront and examine the credibility of the witnesses against her.

On appeal, the Agency contends that an in-person hearing is not necessarily required

to avoid due process pitfalls, and we agree. The Tennessee Employment Security Law

“guarantee[s] a claimant the right to a fair hearing after denial of a claim for unemployment

benefits.” Simmons v. Traughber, 791 S.W.2d 21, 24 (Tenn. 1990) (citing Tenn. Code Ann.

§ 50-7-304(c)(1)). However, section 50-7-304(f) specifically permits hearings before the

Appeals Tribunal or the Commissioner’s Designee to be conducted telephonically:

Notwithstanding § 4-5-312(c) or any other provision to the contrary, the

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appeals tribunal and the commissioner’s designee may, for good cause, hold

all or part of the hearing by telephone conference. In determining good cause,

the appeals tribunal and commissioner’s designee shall consider the wishes of

the parties and such factors as the physical security risk to the participants or

the department’s staff, the travel distance to the hearing location for either or

both parties, the relative hardship or convenience to the parties, the complexity

of the issues and any other factor relevant to having a fair hearing.

Moreover, in a nearly-identical case, this Court rejected a claimant’s argument that

a telephonic hearing violated due process. In Armstrong v. Magill, No. W2003-00207-COAR3-CV, 2004 WL 1462631 (Tenn. Ct. App. June 29, 2004), the unemployment benefits

claimant appealed the initial denial of unemployment benefits to the Appeals Tribunal. Id.

at *1. The appeal form contained a box in which the claimant could mark “telephone” or “in

The Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-312(c) provides:

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In the discretion of the administrative judge or hearing officer and agency members and by

agreement of the parties, all or part of the hearing may be conducted by telephone, television

or other electronic means, if each participant in the hearing has an opportunity to participate

in, to hear, and, if technically feasible, to see the entire proceedings while taking place.

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person” to indicate her preference for the upcoming appeal hearing. Id. The claimant

checked no box, and she was sent a “Notice of Telephone Hearing” which, beyond notifying

her that a telephone hearing had been scheduled, instructed her that “IF YOU DO NOT

AGREE TO A TELEPHONE HEARING, contact the Appeals Tribunal immediately and be

prepared to appear in person . . . .” Id. Claimant did not contact the Appeals Tribunal prior

to the hearing. Id. During the telephonic hearing, claimant questioned “why the hearing had

to be over the telephone[,]” but she seemed to acquiesce in the procedure and the hearing

proceeded without objection. Id.

The Appeals Tribunal affirmed the Agency’s decision to deny the claimant

unemployment benefits, and the claimant appealed to the Board of Review without objecting

to the Appeals Tribunal hearing having been conducted by telephone. Id. at *2. Before the

chancery court, the claimant argued that the telephonic hearing violated her due process

rights, but the chancery court disagreed.

On appeal to this Court, the claimant argued, among other things, that the telephonic

hearing had violated her due process rights. Id. at *5. At the outset, we noted that the

claimant had failed to properly object to the telephonic hearing, but we concluded that even

if she had properly objected, that no due process violations had occurred. Id. at *6.

Specifically, we found that the claimant could have chosen an in-person hearing by checking

the appropriate box on her appeal application or that she could have later-requested an inperson hearing by contacting the Appeals Tribunal upon receipt of the “Notice of Telephone

Hearing.” Moreover, we noted that the hearing officer was under no duty to reschedule the

hearing when the claimant questioned why the hearing was being conduct via telephone, but

then acquiesced to the procedure. Ultimately, we stated that “[u]nder these circumstances,

we cannot conclude that [the claimant] was unfairly denied the opportunity to have an inperson hearing.” Id.

As in Armstrong, in the instant case, Ms. Dulaney received a notice clearly styled

“Notice of Telephone Hearing” informing her of the hearing scheduled before the Appeals

Tribunal. The notice included the telephone numbers of the Agency, Ms. Dulaney, and

FedEx, and it instructed Ms. Dulaney to notify the Appeals Tribunal if her telephone number

was not listed, or if it was incorrect. Additionally, the notice specifically stated, “If your

hearing is scheduled by telephone and you want an in-person hearing, please contact the

Appeals Tribunal immediately.”

The record before us contains no indication that Ms. Dulaney voiced any objection

to a telephonic hearing prior to the hearing. Moreover, from the transcript of the Appeals

Tribunal hearing, it further appears that she in no way questioned or challenged the hearing

being conducted via telephone during the hearing, itself. Instead, it appears that she did not

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request an in-person hearing until after the Appeals Tribunal rendered its adverse decision.

Under the circumstances of this case, we cannot conclude that Ms. Dulaney was unfairly

denied the opportunity to have an in-person hearing. The judgment of the chancery court is

reversed and the case is dismissed.

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IV. CONCLUSION

For the aforementioned reasons, we reverse the chancery court’s conclusion that the

telephonic hearing violated Ms. Dulaney’s due process rights and we dismiss the case. Costs

of this appeal are taxed to Appellee, Renita Dulaney, for which execution may issue if

necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

We find it unnecessary to address the second issue raised by the Department, for which it simply 12

seeks an affirmance, and for which Ms. Delaney did not seek appellate relief.

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