Yates v. Traughber

• Citation: 108 S.Ct. 2000,747 S.W.2d 338
• Parties: Sherman YATES, Appellant, v. Raymond TRAUGHBER, Commissioner of the Department of Employment Security, and Steve Norris, Commissioner of the Tennessee Department of Corrections, Appellees. 747 S.W.2d 338
• Decision Date: 28 October 1987
• Court: Court of Appeals of Tennessee

Page 338

747 S.W.2d 338

Sherman YATES, Appellant, v. Raymond TRAUGHBER, Commissioner of the Department of Employment Security, and Steve Norris Commissioner of the Tennessee Department of Corrections Appellees.

747 S.W.2d 338

Court of Appeals of Tennessee Western Section, at Jackson.

Oct. 28, 1987.

Application for Permission to Appeal

Denied Feb. 1, 1988.

Certiorari Denied May 23, 1988.

See 108 S.Ct. 2000.

Wayne Chastain, Memphis, for appellant.

W.J. Michael Cody, Atty. Gen. and Reporter, Debra K. Inglis, Asst. Atty. Gen., for appellees.

CRAWFORD, Judge.

This is an unemployment compensation case. Petitioner, Sherman Yates, appeals from the order of the trial court dismissing his petition for certiorari and affirming the decision of the Board of Review disallowing his claim for unemployment compensation.

Yates was employed by the Tennessee Department of Corrections as a correctional officer at the West Tennessee Reception Center. By February 16, 1986, he had used up his allowable sick leave and annual leave. On that date, he was involved in an automobile accident and allegedly sustained a back injury. He made a verbal request to the Department of Correction for special leave and in response to his request received a letter from the warden of the West Tennessee Reception Center dated February 26, 1986, which states as follows:

In response to your verbal request for special leave, we are unable to grant the request. Special leave must be requested in writing and be approved, in advance, by the appointing authority. Special leave is discretionary in nature, it is not an absolute right.

You have exhausted both your annual and sick leave, and are currently being carried without. Your leave and attendance record over the past several months has been very poor. You are, therefore, directed to return to duty on Saturday, March 1, 1986 for your regular shift. If you do not return to work at that time, you will be considered to have resigned, not in good standing. Chapter 1120-2- 6-.3(4) (sic) of Civil Service Rules and Regulations states that "any employee who fails to report for duty to the immediate supervisor or appointing authority within two (2) business days after the expiration of any authorized leave of absence, is considered as having resigned, not in good standing."

Sincerely,

Bruce MacDonald

Warden

(Emphasis supplied).

Yates failed to return to work as the letter directed and his employment terminated. He filed a claim for unemployment compensation benefits and the Department of Employment Security at the agency level denied the claim on the grounds that he was discharged when he failed to report to work as scheduled after an approved leave and this constituted "misconduct connected with his work" pursuant to T.C.A. Sec. 50-7-303(a)(2) (1987 Supp.). Yates duly appealed this decision and a notice of hearing was issued by the Appeals Tribunal to all interested parties, including Yates, specifically designating the issues for the hearing as "separation from work--T.C.A. Sec. 50-7-303(a)(1) & (a)(2)."

The decision of the Appeals Tribunal states in part pertinent to this appeal as follows:

On March 28, 1986, claimant filed an initial claim for unemployment compensation. On June 19, 1986, the Agency found that claimant was discharged under disqualifying conditions. In accordance with TCA Sec. 50-7-303(a)(2)(B), claimant was disqualified from receiving benefits until claimant has earned ten times the weekly benefit amount in covered employment. On June 24, 1986, claimant filed an appeal from the decision of the Agency to the Appeals Tribunal. After due notice to all interested parties, a hearing was conducted on this case at Memphis, Tennessee, on July 17, 1986, at which time the claimant testified. Representing the claimant was C. Dean Maitland, Paralegal. The employer was represented by Jack Salisburg, Personnel Director.

After carefully considering the testimony and the entire record in this case, the Appeals Tribunal makes the following

FINDINGS OF FACT: Claimant's most recent employment prior to filing this claim was with the Tennessee Department of Corrections, Memphis, Tennessee, until February 23, 1986. Prior to February 1986, claimant had missed a number of days from work, and had used up all sick leave, annual leave, and compensatory leave allowed. On or about February 23, 1986, he indicated to the employer that he had been in a car accident, was unable to report to work, and requested special leave without pay. Because of his previous attendance record, claimant was informed that his request would be denied, and if he did not return by that date, and was considered to have resigned.

CONCLUSIONS OF LAW: The Appeals Tribunal finds that claimant is considered to have left work within the meaning of TCA Sec. 50-7-303(a)(1) when he stopped reporting for work after February 23, 1986. As there is no medical evidence of his need to be off work, the Appeals Tribunal finds that he has not satisified the medical exception provisions of TCA Sec. 50-7-303(a)(1) and is not now eligible for unemployment benfits under that section of the statute. The Agency decision which denied this claim is modified.

DECISION: The claimant is not eligible for unemployment benefits under TCA Sec. 50-7-303(a)(1). The claim is denied as of the date of filing and until claimant qualifies for benefits in accordance with the Tennessee Employment Security Law.

Yates appealed this decision to the Board of Review pursuant to T.C.A. Sec. 50-7-304(e)(1) which provides:

(e)(1) Board of Review. The board of review may on its own motion affirm, modify, or set aside any decision of an appeals referee on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it. The board of review shall permit such further appeal by any of the parties interested in a decision of an appeals referee. The board of review may remove to itself or transfer to another appeals referee proceedings of any claim pending before an appeals referee. Any proceedings so removed to the board of review shall be heard by a quorum thereof, in accordance with the requirements in subsection (c) of this section. The board of review shall promptly give written notice to all interested parties of its findings and decision. Any decision of the board of review shall be the final decision of the commissioner.

The decision of the Board of Review pertinent to the appeal in this case states:

This claimant filed an initial claim for unemployment compensation on March 28, 1986. On June 10, 1986, the Agency disallowed the claim under TCA 50-7-303(a)(2)(B). The claimant filed an appeal to the Appeals Tribunal on June 24, 1986. After due notice to all interested parties, a hearing was scheduled on this case at Memphis, Tennessee, on July 17, 1986, at which time the claimant testified. Representing the claimant was C. Dean Maitland, Paralegal. The employer was represented by Mr. Jack Salisburg. By decision dated July 23, 1986, the Appeals Tribunal modified the Agency's decision and disallowed the claim under TCA 50-7-303(a)(1). From this decision the claimant filed an appeal to the Board of Review on August 1, 1986. Although requested by the claimant, no further hearing was scheduled before the Board of Review in that the claimant's request for an additional hearing does not contain a description of statement of any evidentiary matters and offers no new material evidence not already a part of the record.

FINDINGS OF FACT: Based upon the entire record in this cause, the Board of Review finds the Appeals Tribunal correctly found the facts and applied the law. We hereby adopt the findings of fact and decision of the Appeals Tribunal but the same need not be copied herein for the purpose of our decision.

CONCLUSIONS OF LAW: After considering the entire record, the Board of Review finds no error in the decision of the Appeals Tribunal which disallowed this claim under TCA 50-7-303(a)(1).

DECISION: The decision of the Appeals Tribunal, which disallowed this claim under TCA 50-7-303(a)(1), is in all things and matters affirmed.

Yates filed a petition for certiorari in the Chancery Court for review of the Commissioner's final decision. The...