Sanders v. Comm'r of Dep't of Labor

• Decision Date: 08 September 2015
• Docket Number: No. W2015-00796-COA-R3-CV,W2015-00796-COA-R3-CV
• Court: Tennessee Court of Appeals
• Parties: VIRGINIA H. SANDERS v. COMMISSIONER OF DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, ET AL.

VIRGINIA H. SANDERS v. COMMISSIONER OF DEPARTMENT OF LABOR ANDWORKFORCE DEVELOPMENT, ET AL.

No. W2015-00796-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

Assigned on Briefs August 19, 2015

September 8, 2015

Appeal from the Chancery Court for Shelby County

No. CH1318403

Oscar C. Carr, III, Chancellor

Appellant employee appeals from the denial of her claim for unemployment compensation. Because there is substantial and material evidence in the record to establish that the employee was discharged for work-related misconduct, we affirm.

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

J. STEVEN STAFFORD, P.J. W.S., delivered the opinion of the Court, in which ARNOLD B. GOLDIN, J., and BRANDON O. GIBSON, J., joined.

Virginia H. Sanders, Bartlett, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; and Jason I. Coleman, Assistant Attorney General, for the appellees, Commissioner, TN. Dept. of Labor & Workforce Development.

R. Alex Boals, Memphis, Tennessee, for the appellee, Baptist Memorial Hospital, Inc.

OPINION

Background

Plaintiff/Appellant Virginia H. Sanders was employed by Defendant/Appellee Baptist Memorial Hospital ("the hospital") as a unit coordinator beginning in October 24, 1994. OnFriday, June 14, 2013, an incident occurred that resulted in the termination of Ms. Sanders's employment.

On June 25, 2013, Ms. Sanders filed an initial claim for unemployment benefits. On August 5, 2013, the Department of Labor and Workforce Development ("Department of Labor") found that Ms. Sanders was discharged for workplace misconduct, disqualifying her from unemployment benefits. On August 14, 2013, Ms. Sanders filed an appeal to the Department of Labor's Appeals Tribunal.

The hearing officer for the Appeals Tribunal conducted a telephonic hearing on October 9, 2013. Neither Ms. Sanders nor the hospital was represented by counsel. Instead, Ms. Sanders appeared on her own behalf, and the hospital's Director of Human Resources, Dennis Fisher, appeared on its behalf. Lulu Lofton, the head nurse on the floor when the incident took place, testified first. The facts surrounding the incident were largely undisputed. According to the testimony and other documents in the record, Ms. Lofton asked Ms. Sanders to ensure that the patient care assistants ("assistants") had working pagers. To accomplish this, Ms. Sanders sent a message through the paging system for the assistants to "check your lights." Dale Neal, one of the assistants, then approached Ms. Sanders and Ms. Lofton to indicate that she did not understand the message. Ms. Sanders and Ms. Lofton attempted to explain the purpose of the page. Thereafter, Ms. Neal walked away from the nurses' station and made a gesture that Ms. Sanders interpreted as an invitation to kiss Ms. Neal's behind. Ms. Sanders replied that she did not have to "kiss [Ms. Neal's] big, fat behind." Ms. Neal then allegedly returned to the nurses' station. According to Ms. Sanders, Ms. Neal approached in a threatening manner with her fist clenched.¹ All witnesses for the hospital denied that Ms. Neal approached the nurses' station in a threatening manner. Ms. Sanders then rose from her chair, and she and Ms. Neal allegedly continued to argue. Because voices were raised,² Ms. Lofton informed Ms. Sanders and Ms. Neal that they could not have this discussion at the nurses' station, but needed to take the issue to a conference room or outside. Ms. Sanders responded that they should "take it outside." According to Ms. Sanders, she merely indicated her intention to continue the verbal disagreement away from the nurses' station. Witnesses for the hospital, however, described Ms. Sanders's demeanor as threatening. Neither party actually engaged in any physical altercation. Nevertheless, it appears that it was Ms. Sanders who ultimately called security to inform them of the confrontation.

According to Latonya Green, the nurse manager, after she was informed of the altercation,³ both Ms. Sanders and Ms. Neal were sent home for the remainder of the day andasked to provide written statements regarding what occurred. Ms. Neal provided a statement, but Ms. Sanders either refused to provide one or delayed in providing a statement.⁴ Both employees were placed on investigative suspension, and Ms. Sanders was discharged on Monday, June 18, 2013. Ms. Green indicated that the decision to terminate Ms. Sanders's employment was because she "violated our code of conduct and safe and productive workplace policy by displaying disruptive behavior, due to advancement toward another employee and inviting the employee to take the confrontation outside, and being the aggressor in the situation." Ms. Lofton testified that Ms. Sanders was aware of the hospital's threatening behavior policy, as employees are required to review it annually and take an annual disruptive behavior class. According to Ms. Lofton, "according to [the hospital's] policy, [threatening] behavior is expressly forbidden conduct, which will not be tolerated, and can be a ground[] for termination."

The Appeals Tribunal issued a written decision reversing the decision of the Department of Labor. Specifically, the Appeals Tribunal found that:

[Ms. Sanders] was discharged for threatening a co-worker with violence. The employer's policy allows for immediate discharge of employees who threaten violence. . . .

. . . . Although [Ms. Sanders] was involved in a verbal altercation with the co-worker, insufficient evidence was presented to show that [Ms. Sanders] threatened the co-worker with violence. A willful or wanton violation of a duty [Ms. Sanders] owed to the employer has not been established. [Ms. Sanders] was discharged, but misconduct connected with work has not been shown . . . .

On October 21, 2013, the hospital requested an appeal of the decision by the Appeals Tribunal. The hospital argued that Ms. Sanders's actions constituted workplace misconduct because she failed "to observe rules of safety or conduct that an average person would observe." See Tenn. Code Ann. § 50-7-303(a)(2).

The Commissioner's Designee issued a written decision concerning the hospital's appeal on November 1, 2013. Therein, the Commissioner's Designee's decision specifically discussed the events that occurred after Ms. Neal first began to walk away from the nurses' station, prior to the altercation:

Apparently the situation was calm at the time and the other employee turned around and sta[r]ted to walk away. As the employee was walking way, [Ms. Sanders] noticed a movement that the employee seemed to pat her bottom as she walked away. While the other employee did not make any verbal comments, [Ms. Sanders] interpreted the motion as the other employee telling [Ms. Sanders] to kiss her behind. As that point [Ms. Sanders] called out to the employee something to the effect of I don't have to or do you want me to kiss your big fat behind. After [Ms. Sanders] made that comment, the other employee turned around and started walking back towards [Ms. Sanders] who got out of her chair and they started to have a loud argument during which [Ms. Sanders] told the other employee let's take it outside. The incident happened at the nursing station.

Based upon these facts, the Commissioner's Designee concluded:

The evidence is sufficient to show that during a confrontation with another employee, [Ms. Sanders] made a comment to that employee to let's take it outside. The difference or disagreement between the parties was to [Ms. Sanders]'s intention. The Employer has argued that such a statement is an implied invitation to take the argument outside to engage in a physical fight to settle the matter and, as such, constitutes a physical threat or invitation to physical violence.

[Ms. Sanders] argued that the argument was taking place at a public place in the work area and that she was only trying to defuse the situation and made the statement to the other employee only in an attempt to take their dispute away from a public area. The Commissioner's Designee agrees that the statement [Ms. Sanders] made could be open to interpretation, however, a very common understanding of such a statement is as an invitation to a fight and [Ms. Sanders] knew or should have known that was how it could be interpreted. At the very least, by making such a statement, [Ms. Sanders]'s action would have been a good faith error in judgment or discretion. Misconduct is defined at T.C.A. 50-7-303 (b) (3) and it does provide in part, that a good faith error in judgment or discretion is not work connected misconduct.

Perhaps if that was the extent of the situation in this case, that one statement, standing alone would not be work connected misconduct. However, it was not just that one statement standing alone. The evidence shows that the incident started with the other employee asking [Ms. Sanders] a question. The Commissioner's Designee does agree the back and forth between [Ms. Sanders] and the other employee seems strange and it is understandable how [Ms. Sanders] may have become frustrated with the other employee, but the evidence does not show that the [Ms. Neal] was acting in a threatening or argumentative way in asking her questions and in fact, actually turned away from where she had questioned [Ms. Sanders] and was walking away.

It was Claimant who escalated the incident to a confrontation by calling after the employee something to the affect that you want me to or I don't have to kiss your big fat behind. Now [Ms. Sanders] argued she did that only after the other employee seemed to pat her own behind to which [Ms. Sanders] assumed was a reference from the other employee to [Ms. Sanders]. Just as [Ms. Sanders] has argued that her statement was misinterpreted by the Employer, while the gesture described by [Ms. Sanders] could certainly be interpreted as described by [Ms. Sanders], it certainly could have been misinterpreted by [Ms. Sanders]. Whether or not [Ms. Sanders] interpreted what the

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