                IN THE COURT OF APPEALS OF TENNESSEE
                                                             FILED
                            AT KNOXVILLE
                                                               Feb 25, 2000

                                                           Cecil Crowson, Jr.
                                                          Appellate Court Clerk


RALPH E. WILLIAMS,             )       E1999-01528-COA-R3-CV
                               )
          Plaintiff-Appellant, )
                               )
                               )
                               )
v.                             )
                               )       APPEAL AS OF RIGHT FROM THE
                               )       HAMILTON COUNTY CHANCERY COURT
                               )
TENNESSEE DEPARTMENT OF        )
EMPLOYMENT SECURITY,           )
COMMISSIONER MARGARET          )
CULPEPPER, AND CHATTANOOGA     )
AREA REGIONAL TRANSPORTATION   )
AUTHORITY (“CARTA”),           )
                               )       HONORABLE W. FRANK BROWN, III,
          Defendants-Appellees.)       CHANCELLOR



For Appellant                          For Appellees

RALPH E. WILLIAMS                      PAUL G. SUMMERS
Pro Se                                 Attorney General and Reporter
Chattanooga, Tennessee                 Nashville, Tennessee
                                       DOUGLAS EARL DIMOND
                                       Assistant Attorney General
                                       Civil Rights Division
                                       Nashville, Tennessee




                          O P I N IO N




AFFIRMED AND REMANDED                                          Susano, J.




                                   1
            This is an unemployment compensation case.          The

Tennessee Department of Employment Security (“the Department”)
denied the claim of Ralph E. Williams for unemployment benefits,
finding that Williams had been guilty of work-related

misconduct.1    After exhausting his administrative remedies to no
avail, Williams filed a petition for certiorari in the trial
court, which court affirmed the Department’s denial of benefits.

Williams appeals, essentially arguing: (1) that he was not guilty
of work-related misconduct; and (2) that he was deprived of a
fair hearing in violation of state and federal law.



                                     I.


            Williams was employed as a bus driver for the
Chattanooga Area Regional Transit Authority (“CARTA”) from

September 9, 1986, until his termination on February 26, 1996.
The separation notice states that he was terminated because of
“job misconduct; habitual violation of CARTA[‘s] work rules.”              On

February 29, 1996, Williams filed a claim for unemployment

benefits.    His claim was subsequently denied because the
Department found that Williams was discharged for work-related

misconduct.




            Williams appealed to the Department’s Appeals Tribunal

on March 29, 1996.      In his notice of appeal, Williams contends



  1
   See T.C.A. § 50-7-303(a)(2) (1999), which provides, in pertinent part, as
follows:

            (a) DISQUALIFYING EVENTS. A claimant shall be
            disqualified for [unemployment] benefits:
                              *     *     *
            (2) If the administrator finds that a claimant has
            been discharged from such claimant’s most recent work
            for misconduct connected with such claimant’s work....


                                      2
that “CARTA has fired 11 black workers in the last 7 years using

the misconduct rule, and this agency is not looking at all the
facts in their decision.”


            The Appeals Tribunal heard Williams’ appeal on April
23, 1996.    At the hearing, CARTA presented several employees, who
testified regarding Williams’ disciplinary history and the

reasons for his termination.    Williams’ disciplinary record, a
volume of over 170 pages, was also introduced into evidence.
Williams, who was representing himself, testified on his own

behalf and presented one other witness.


            On April 26, 1996, the Appeals Tribunal released its

decision affirming the Department’s denial of benefits.     Although
Williams had contended that his termination was in retaliation

for the complaints he had filed against the company for racially-
motivated discriminatory practices, the Appeals Tribunal found
that Williams had “failed to present sufficient evidence to

substantiate his case.” The Appeals Tribunal also found as

follows:


            The Appeals Tribunal finds that the evidence
            in the record is sufficient to establish
            intentional work related misconduct on the
            claimant’s part within the meaning of TCA §
            50-7-303(a)(2). The facts show that the
            claimant disregarded the employer’s interests
            and/or willfully acted against the best
            interests of the employer. Misconduct is a
            deliberate act or a willful violation of an
            employee’s duties, insubordination,
            intentional violation of company rules or
            conduct detrimental to the interests of the
            employer or his fellow workers. The claimant
            was discharged for continued and habitual
            violations of company policies and
            procedures. The claimant was aware that he
            was in jeopardy of losing his job. The
            claimant has progressed through the necessary
            disciplinary procedures to warrant


                                  3
          termination.   The Agency decision is
          affirmed.


          The Department’s Board of Review (“the Board”) adopted
and affirmed the Appeals Tribunal’s decision on June 18, 1996.
Williams then filed a petition for certiorari in the trial court

on July 29, 1996.   On February 17, 1999, the trial court affirmed
the Board’s decision.


                                II.


          T.C.A. § 50-7-304(i)(2) (1999) provides the standard by

which courts must review administrative decisions involving
claims for unemployment compensation:


          The chancellor may affirm the decision of the
          board or the chancellor may reverse, remand
          or modify the decision if the rights of the
          petitioner have been prejudiced because the
          administrative findings, inferences,
          conclusions or decisions are:

          (A) In violation of constitutional or
          statutory provisions;
          (B) In excess of the statutory authority of
          the agency;
          (C) Made upon unlawful procedure;
          (D) Arbitrary or capricious or characterized
          by abuse of discretion or clearly unwarranted
          exercise of discretion; or
          (E) Unsupported by evidence which is both
          substantial and material in the light of the
          entire record.



Williams’ arguments appear to implicate two provisions of the

statute: that the Board’s decision is unsupported by substantial

and material evidence, see T.C.A. § 50-7-304(i)(2)(E); and that
the decision was in violation of constitutional or statutory

provisions, see T.C.A. § 50-7-304(i)(2)(A).   We will address each

of his contentions in turn.


                                 4
                                 III.



           First, we must determine whether the Board’s decision
is supported by substantial and material evidence.     See T.C.A. §

50-7-304(i)(2)(E).    When determining the sufficiency of the
evidence, a court must “take into account whatever in the record
fairly detracts from its weight, but [it] shall not substitute

[its] judgment for that of the board of review as to the weight
of the evidence on questions of fact.”     T.C.A. § 50-7-304(i)(3).


           Williams challenges the Board’s finding of work-related
misconduct on two grounds.     First, he argues that he “was not
fired for job related misconduct at all but rather for having

exposed company mismanagement, fraud, racial discrimination and
sexual harassment.”    Second, he contends that CARTA did not

substantiate its charge of misconduct against him.


           We find that there is substantial and material evidence

to support the Board’s finding that Williams habitually violated

CARTA’s work rules.    Art Barnes, CARTA’s assistant executive
director, testified that from March, 1993, to the date of

Williams’ termination, Williams had run late on his bus schedule

nine times.   The following is a portion of Williams’ disciplinary
history:



Date            Incident/Violation              Action Taken

03/10/93        Running late                    Counseled

07/23/93        Running late/failure to         2-day suspension
                respond to radio

08/05/93        Running late                    3-day suspension

09/19/94        Violation of attendance         Written warning
                policy (5 absences within
                90 day period)

                                   5
06/27/95         Running late/improper use     1-day suspension
                 of radio
08/08/95         Failed to report intention    Warning
                 to be off work for extended
                 period
08/10/95         Failed to leave garage on     3-day suspension
                 time to commence route
09/13/95         Customer complaint –-         Investigation
                 constantly late on route
09/13 and        Running late (confirmed       5-day suspension
09/14/95         by road supervisors)
11/01/95         Running late                  10-day suspension/
                                               Final warning
11/16/95         Violation of attendance       Warning
                 policy
02/27/96         Running late/failure to       Suspension/
                 answer radio                  Termination


            In November, 1995, when Williams was given a 10-day

suspension for running late, he was advised as follows:



            Continued violation of Code of Conduct 1J, a
            Level I offense, RUNNING LATE SCHEDULE FOR NO
            VALID REASON. The ten (10) day suspension
            you have just completed is a severe warning
            to you.

            Any further violations of this rule within
            one year from the date of the last infraction
            or any major rule violation, will result in
            your termination from employment with CARTA.



            Within the one-year period, on February 26, 1996, Lee

Dawson, who was Williams’ immediate supervisor, observed Williams

still on CARTA’s property eight minutes after Williams’ run had

been scheduled to begin.    Dawson testified that he attempted to

contact Williams by radio, but received no response. Dawson
stopped Williams on his route and asked why he had started late.

Williams’ response was that he was not the only driver running

late.   When Dawson asked Williams why he had not responded to the


                                  6
radio, Williams stated that he had not heard it.    Dawson then

checked the radio and found that it was working properly.
Williams was terminated the next day.   Based upon Williams’
extensive history of running late and other violations of CARTA’s

rules, we find that there is substantial and material evidence to
support the finding that Williams had habitually violated CARTA’s
work rules.



          Next, we must determine whether Williams’ habitual
violation of the rules was “misconduct” for the purposes of

disqualification under T.C.A. § 50-7-303(a)(2).    Although the
term is not defined in the statute, we have defined “misconduct”
as



          conduct evincing such wilful and wanton
          disregard of an employer’s interests as is
          found in deliberate violations or disregard
          of standards of behavior which the employer
          has the right to expect of his employee, or
          in carelessness or negligence of such degree
          or recurrence as to manifest equal
          culpability, wrongful intent or evil design,
          or to show an intentional and substantial
          disregard of the employer’s interests or of
          the employee’s duties and obligations to the
          employer. On the other hand mere
          inefficiency, unsatisfactory conduct, failure
          in good performance as the result of
          inability or incapacity, inadvertences or
          ordinary negligence in isolated instances, or
          good faith errors in judgment or discretion
          are not to be deemed “misconduct” within the
          meaning of the statute.



Armstrong v. Neel, 725 S.W.2d 953, 956 (Tenn.Ct.App. 1986)

(quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis.

1941)).   Upon reviewing Williams’ extensive disciplinary history,

we find that there is substantial and material evidence to

support a finding that Williams had shown an “intentional and

substantial disregard” of his duties and obligations to CARTA by


                                 7
his repeated violations of the agency’s rules.    His misdeeds fall

within the concept of “misconduct” found in T.C.A. § 50-7-
303(a)(2).


                                 IV.


          The second issue raised on appeal is whether Williams

was deprived of a fair hearing in violation of constitutional or
statutory provisions.    See T.C.A. § 50-7-304(i)(2)(A).   The
Tennessee Employment Security Law and the federal Social Security

Act both guarantee a claimant who has been denied unemployment
benefits the right to a fair hearing.    T.C.A. § 50-7-304(c)(1)
(1999); 42 U.S.C. § 503(a)(3) (Supp. 1999).    Williams contends

that he was deprived of a fair hearing for several reasons.
First, he argues that the referee presiding over the Appeals

Tribunal hearing erroneously excluded evidence that, Williams
contends, establishes that his termination was retaliatory.
Second, he argues that he was deprived of his right to counsel.

Third, he argues that T.C.A. § 50-7-303(a)(2) “automatically

classifies” certain behavior as “misconduct” and that this
classification deprived him of a fair hearing.    We will address

these issues in the order stated.



             At the hearing, Williams attempted to introduce into

evidence a written summary that he had prepared detailing the

alleged harassment by CARTA; a newspaper clipping about the

burning of Williams’ house; and a letter written by Williams to

the Department of Justice requesting a federal investigation of
CARTA.   Williams argues that the exclusion of these documents

“prevented [him] from presenting his case at all.”




                                   8
           We do not find that the exclusion of the proffered

documents deprived Williams of a fair hearing.   Although the
referee did not allow the introduction of the written summary, he
ruled that Williams could use the summary while testifying in

order to refresh his memory.   Despite this ruling inviting his
oral testimony regarding the material in the summary, Williams
failed to testify about these matters.   Under the record before

us, it cannot be said that he was prevented from presenting the
substance of the material that he had incorporated into the
summary.



           The newspaper clipping and accompanying letter were
excluded because the referee found them to be irrelevant.    The

clipping reports that Williams’ house had burned down and that
the cause of the fire was under investigation.   The letter sets

forth Williams’ allegations that CARTA was responsible for the
fire as well as other retaliatory and discriminatory acts against
him.   We find that these documents are at best unsubstantiated

allegations; they provide no proof that CARTA engaged in any

retaliatory conduct against Williams, only his contentions
regarding such activity.   Thus, these documents were properly

excluded by the referee.



           Next, Williams argues that he “was forced to go before

the [B]oard...without being apprised of or allowed legal counsel

at government expense.”



           The right to a fair hearing includes the right to be
represented by counsel.    Simmons v. Traughber, 791 S.W.2d 21, 24

(Tenn. 1990).   In order to ensure that this right is effective,
the Supreme Court has held that a claimant must have “full and


                                  9
meaningful” notice of the right to be represented at the Appeals

Tribunal hearing.    See id.



          The Department argues that Williams was advised of his

right to be represented by counsel in a document enclosed in a

notice mailed to Williams on April 9, 1996, advising him of the

hearing before the Appeals Tribunal.    The document states, in

pertinent part, as follows:



                          REPRESENTATION

          YOU MAY BE REPRESENTED BY AN ATTORNEY OR ANY
          OTHER AUTHORIZED REPRESENTATIVE OF YOUR
          CHOOSING. IF YOU CANNOT AFFORD AN ATTORNEY,
          FREE OR LOW COST ASSISTANCE MAY BE AVAILABLE
          THROUGH YOUR LOCAL LEGAL SERVICES
          ORGANIZATION OR BAR ASSOCIATION.



There is no indication that Williams did not receive this notice.

We find that this advisement was sufficient to notify Williams of
his right to be represented.   See id. at 25.



          Williams’ contention that he was denied counsel “at

government expense” does not rise to the level of error.   The
Department was not obligated to provide Williams with an attorney
at the Department’s expense; it was only required to advise him

of his right to be represented.    See id.



          Finally, Williams argues that T.C.A. § 5-7-303(a)(2) is

unconstitutional because it “automatically upholds the employer”

and “automatically classifies misconduct,” thereby depriving him
of a fair hearing.   As a result, he complains that he faced a

“stacked deck” and a “biased set of examiners” at the hearing.




                                  10
          We have reviewed the entire record and have found no

evidence of bias or prejudice on the part of the Department.
Further, we find Williams’ contentions regarding the statute to
be baseless.    The statute does not specifically define

“misconduct”; rather, it has been left to the courts to determine
what constitutes misconduct on a case-by-case basis.       See
Armstrong, 725 S.W.2d at 955.    Thus, there is no “automatic

classification” of behavior in the statute.    Moreover, we find

nothing in the statute which can be said to “automatically

uphold[] the employer”; on the contrary, under T.C.A. § 50-7-303,

the employer has the burden of proof as to the issue of

“misconduct.”    See Weaver v. Wallace, 565 S.W.2d 867, 870 (Tenn.

1978).   Williams’ contentions are without merit.




                                 11
                               V.



          The judgment of the trial court is affirmed.   Costs on
appeal are taxed to the appellant.   This case is remanded to the

trial court for collection of costs assessed below, pursuant to
applicable law.


                                     __________________________
                                     Charles D. Susano, Jr., J.




CONCUR:


________________________
Houston M. Goddard, P.J.


________________________
D. Michael Swiney, J.




                               12
