                                                                                 FILED
                                                                               Sep 25, 2018
                                                                              07:15 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




           TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT NASHVILLE

Sonia Ree Chavez,                            )   Docket No. 2018-06-0643
            Employee,                        )
v.                                           )
Fleetgistics Holdings, Inc.,                 )   State File No. 24722-2018
              Employer,                      )
And                                          )
Agri Gen. Ins. Co.,                          )   Judge Kenneth M. Switzer
              Carrier.                       )


       EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


       The Court held an Expedited Hearing in this case on September 19, 2018. The
present focus is whether Sonia Chavez's termination relieved Fleetgistics Holdings, Inc.
of its obligation to pay temporary disability benefits. Because Fleetgistics reasonably
terminated Ms. Chavez for violation of its workplace expectations, her dismissal was
proper. Thus, the Court denies her request.

                                    History of Claim

       Ms. Chavez worked as an operations manager for Fleetgistics in its Nashville
location. On July 28, 20 17, she injured her back and neck at work. Fleetgistics accepted
the claim and authorized treatment. Providers placed Ms. Chavez on restrictions,
including no lifting greater than five pounds and no driving. After the injury, she
returned to work until October 26, when Fleetgistics terminated her.

        Ms. Chavez testified that her job involved managing accounts for two major
clients, Advance Auto Parts and Network Healthcare. Her role was to recruit and
dispatch drivers to deliver freight to these businesses. She managed approximately sixty
drivers, who were all independent contractors.

       According to Ms. Chavez, Fleetgistics decreased the pay available to independent
contractors in late 2014. This made it harder for her to recruit drivers. It also meant she

                                             1
often ran routes herself when she was unable to find drivers. She worked nights and
weekends in an attempt to meet the clients' needs.                 A former Fleetgistics
driver/independent contractor, Kertrice Wright, corroborated Ms. Chavez's testimony
regarding the hours she worked and her difficulty finding drivers. Before her injury, Ms.
Chavez and Fleetgistics discussed her increasing difficulty in locating drivers.

       Fleetgistics introduced three Performance Improvement Plans to support its
contention that Ms. Chavez did not meet her job requirements. One plan listed goals for
her to meet in October and December 2016, several months before the work injury.
Another contained goals for July and August 2017. The third, which Ms. Chavez never
signed, set goals for October 2017. The plans generally called for improvement with
drivers' tardiness, scanning deliveries in and out, and their overall professionalism. Ms.
Chavez acknowledged signing the first two Performance Improvement Plans but could
not recall the details of any conversations she had with Fleetgistics when she signed
them.

       Concerning the Performance Improvement Plans, Ms. Chavez testified that
whenever she learned of drivers falling short in an area, she telephoned them or met with
them to discuss the problem. However, she contended that, since they were independent
contractors, she had no control over how they actually performed their jobs.

       Ms. Chavez further testified that, post-injury, she emailed a supervisor to state that
her job duties exceeded her restrictions. The supervisor's response did not acknowledge
her restrictions. He wrote: "I have not asked you to run a route. As an OM it is YOUR
responsibility to make sure all routes are covered. If you have chosen to run them
because you failed to have a contractor run them, that was your choice." (Capitalization
in original.) He mentioned numerous staff the company already sent to help her.

       In defense of Ms. Chavez's claim, Fleetgistics relied on the affidavit and live
testimony of Patrick Grum, its vice-president of operations. His affidavit stated, "Due to
multiple incidences of poor job performance over time (for example, scanning
percentages that did not meet company standards, uncorrected turnover of independent
contractors, not visiting customer sites as required), Ms. Chavez was on her third
performance improvement plan."

        At the hearing, Mr. Grum testified that Fleetgistics terminated her for
performance. He said Advance Auto Parts gave Fleetgistics a "cure" notice, stating that
the company's Nashville location was "out of expectations" with its contract and might
lose its business. Mr. Grum additionally said that operations managers in other cities
performed her same duties and paid drivers the same amount hut, unlike Ms. Chavez, had
no problems meeting their job requirements. He disagreed that operations managers
have no control over independent contractors, explaining that Fleetgistics does the same
work for Advance Auto Parts in over ninety locations, and has "not lost work at this

                                              2
magnitude because of these issues[.]             The Tennessee market had many more
problems than the rest ofthe country."

        Mr. Grum maintained that a good operations manager should be "out ahead of the
problems; they were proactively recruiting constantly." He denied that Fleetgistics
encouraged Ms. Chavez to run routes, and although "it happens from time to time" that
an operations manager runs a route, it was "by no means the expectation or the norm" to
do so. Mr. Grum acknowledged that the operations-manager job description required
lifting up to fifty pounds, but he said that Ms. Chavez could perform all other duties
despite her restrictions. He denied that Advance Auto Parts opening its own distribution
center affected the company's decision to terminate her.

        Fleetgistics introduced two affidavits to corroborate Mr. Grum's testimony. Greg
Taylor, an operations manager in Raleigh, North Carolina, stated that he dealt with the
same rate negotiations for drivers, but the rate changes did not cause the problems Ms.
Chavez alleged. Chuck Wooley, an operations manager in Memphis, stated that
Fleetgistics let Ms. Chavez go after she failed her Performance Improvement Plans and
after it "lost a customer that represented 1.6 million dollars of revenue due to the lack of
service that Sonya [sic] Chavez provided to them."

       Ms. Chavez argued that Fleetgistics terminated her because of her injury and
Advance Auto Parts' impending distribution center, which eliminated its need for
Fleetgistics' services. The company countered that it terminated her for poor
performance.

                       Findings of Fact and Conclusions of Law

       Ms. Chavez must present sufficient evidence that she is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(l) (2017); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).

       Ms. Chavez seeks temporary partial disability benefits. Temporary partial
disability refers to the time, if any, during which the injured employee is able to resume
some gainful employment but has not reached maximum recovery. Jones v. Crencor
Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).
However, even though an employee has a work-related injury for which temporary
benefits are payable, an employer may still enforce workplace rules. !d. at *8. Thus, a
termination due to a violation of workplace rules may relieve an employer of its
obligation to provide temporary partial disability benefits, provided the termination was
related to the workplace violation. !d. Courts must "consider the employer's need to
enforce workplace rules and the reasonableness of the contested rules." !d. at *8-9. An
employer will not be penalized for enforcing a policy if the court determines "( 1) that the

                                             3
actions allegedly precipitating the employee's dismissal qualified as misconduct under
established or ordinary workplace rules and/or expectations; and (2) that those actions
were, as a factual matter, the true motivation for the dismissal." !d.

       Here, Ms. Chavez credibly testified that she worked long hours, often running
routes when she was unable to find drivers. Ms. Wright's testimony confirmed this. The
Court does not question Ms. Chavez's commitment or general work ethic.

       However, Mr. Grum also offered credible testimony-specifically that Ms. Chavez
was not meeting her job requirements and that the company attempted to address these
shortcomings before and after she suffered injury. The affidavits from Mr. Taylor and
Mr. Wooley support his testimony.

        Mr. Grum explained that when Fleetgistics received the "cure" notice, it began
coaching Ms. Chavez. The Court finds Fleetgistics acted reasonably when it put the
Performance Improvement Plans in place after learning of a significant customer's
dissatisfaction and the potential loss of its business. The Court further credits Mr.
Grum's testimony that, post-injury, Ms. Chavez had the physical capabilities to perform
every aspect of her job duties except lifting more than five pounds and that the company
discouraged her from running routes. In sum, the Court finds that Ms. Chavez's failure to
meet her employer's performance expectations was the true motivation for her dismissal.

        Mr. Grum denied that Advance Auto Parts' proposed distribution center played a
role in Ms. Chavez's termination, and she provided nothing but her own opinion to prove
otherwise. Moreover, the Court is not persuaded by her argument that she had no control
over independent contractors. Her role, as Mr. Grum explained, was to manage the
routes; if an independent contractor proved unsatisfactory, the remedy was to recruit
other drivers. Finally, Ms. Chavez argued that she never engaged in "misconduct"
warranting her dismissal. The Court agrees. However, this argument overlooks that
Jones also permits an employee's termination for "ordinary workplace rules and/or
expectations." An employer may reasonably expect that an employee perform her job as
described and may take appropriate action when she does not.

       In conclusion, Ms. Chavez has not provided sufficient evidence from which this
Court can hold that she is likely to prevail at a hearing on the merits.




                                           4
IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Chavez's request for temporary disability benefits is denied at this time.

   2. This case is set for a Scheduling Hearing on November 26, 2018, at 9:15 a.m.
      Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to
      participate in the Hearing. Failure to call may result in a determination of the
      issues without your participation.

      ENTERED September 25, 2018.




                                  J DGE KENNETH M. SWITZ
                                  Court of Workers' Compensati 1

                                      APPENDIX

Exhibits:
   1. Ms. Chavez's Affidavit
   2. Patrick Grum's Affidavit
   3. Greg Taylor's Affidavit
   4. Chuck Wooley's Affidavit
   5. Wage statement
   6. Medicalrecords
   7. Causation letters
   8. Email to Mr. Ford
   9. Mr. Ford's email response
   10. Job log

Technical record:
   1. Petition for Benefit Determination
   2. Employer's Pre-Mediation Position Statement
   3. Dispute Certification Notice
   4. Request for Expedited Hearing
   5. Employer's Brief
   6. Employer's Witness List
   7. Employee's Brief
   8. Employee's Witness List




                                            5
                             CERTIFICATE OF SERVICE

        I certify that a copy of the Expedited Hearing Order was sent to these recipients by
the following methods of service on September 25, 2018.

 Name                        Certified Via       Via      Service sent to:
                             Mail      Fax       Email
 Julie Reasonover,                                 X      Julie@reasonoverl aw.com
 Employee's attorney
 Kitty Boyte, Employer' s                           X     Kbo:tte@constagny .com;
 attorney                                                 dmccorkle@constagny.,com




                                          P nny Shr:  , Clerk of Court
                                          Court of orkers' Compensation Claims
                                          WC.Cou rtCierk@tn.gov




                                             6
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) a
      statement summarizing the facts of the case from the evidence admitted during the
      expedited hearing; (2) a statement summarizing the disposition of the case as a result of
      the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
      argument, citing appropriate statutes, case law, or other authority.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
