                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                January 21, 2014 Session

    CLEMENTINE NEWMAN v. KARLA DAVIS, COMMISSIONER OF
      TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE
      DEVELOPMENT, and MEMPHIS LIGHT, GAS, AND WATER

              Direct Appeal from the Chancery Court for Shelby County
                  No. CH1115772       Arnold B. Goldin, Chancellor


               No. W2013-00696-COA-R3-CV - Filed February 7, 2014


       This is an appeal from the trial court’s order, affirming the decision of the Designee
of the Commissioner of the Tennessee Department of Labor and Workforce Development
that Appellant/Employee was not qualified for unemployment benefits. Because there is
substantial and material evidence in the record, and a reasonable basis in law, to support the
Commissioner’s Designee’s decision, we affirm the order of the trial court. Affirmed and
remanded.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.

Clementine Newman, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Derek C. Jumper, Assistant Attorney General, for appellee, Tennessee Department of Labor
and Workforce Development.

Imad I. Abdullah, Memphis, Tennessee, for the appellee, Memphis Light, Gas, and Water.


                                         OPINION

     The relevant facts in this case are undisputed. On October 29, 1979, Appellant
Clementine Newman was hired as an Accountant-in-Training by Memphis Light, Gas, and
Water (“MLGW”). In 1982, Ms. Newman was promoted to the position of Rate Analyst, a
position she held until her employment was terminated on August 1, 2006.

       On August 29, 2005, Ms. Newman called MLGW to report that she had been involved
in a non-work-related vehicle accident, and that she would not be reporting to work. On
September 5, 2005, Ms. Newman completed MLGW’s five-day absent form. On September
12, 2005, she returned to work. It appears from the record that Ms. Newman was not allowed
to resume her job at that time because she failed to provide MLGW with a physician’s
statement, verifying her absence and clearing her to return to work. MLGW informed Ms.
Newman that she needed to provide a doctor’s statement in order to be cleared by the
company nurse to return to work. MLGW did provide Ms. Newman with forms for her
doctor to complete. However, Ms. Newman did not respond; on December 7, 2005, Ms.
Newman’s supervisor, Marty Bond, contacted her to check her progress. At that time, Ms.
Newman informed Mr. Bond that she was unable to attend her scheduled physical therapy,
but that she was expecting to be released soon to do so. On January 4, 2006, Ms. Newman
called MLGW to report that she was still not able to attend physical therapy. Except for her
appearance on September 5, 2005, Ms. Newman continued to be absent from work.

        When Ms. Newman had still not returned to work on March 15, 2006, Mr. Bond
called Ms. Newman to check on the status of her absence from work. The next day, Mr.
Bond checked with MLGW’s Insurance Department concerning any information that Ms.
Newman may have supplied to substantiate her absence. Ms. Margaret Harrison, MLGW’s
Managed Care Coordinator, informed Mr. Bond that Ms. Newman had failed to provide any
recent information regarding her absence. As a result, MLGW’s Insurance Department sent
Family and Medical Leave Act (“FMLA”) forms and Certificate of Health Care Provider
forms to Ms. Newman and her treating physician for completion. On March 17, 2006, Ms.
Newman left a message for her supervisor, stating that she called, but she failed to leave any
information concerning the status of her absence from work. Consequently, on March 20,
2006, MLGW mailed Ms. Newman a letter instructing her to contact the office weekly to
provide an update of her work status. With the letter, MLGW enclosed additional copies of
the FMLA and Certificate of Health Care Provider forms.

        Ms. Newman did not immediately complete the forms that MLGW sent to her, and
she continued to be absent from work. Rather, on March 24, 2006, Ms. Newman left a phone
message for Mr. Bond, stating that she was still sick and requesting copies of all of MLGW’s
sick leave policies. MLGW sent the requested policies to Ms. Newman on March 29, 2006.
Ms. Newman did not report to work, nor did she contact MLGW as instructed during the
week of March 29, 2006. The following week, on or about April 4, 2006, Ms. Newman sent
MLGW a partially completed Absence/FMLA form, which allegedly did not contain the
required health care provider certification. However, in the record, we find an April 20, 2006

                                             -2-
Certification of Health Care Provider form, which was completed by Ms. Newman’s treating
physician, Dr. Raymond Gardocki. The April 10, 2006 certification indicates that Ms.
Newman’s condition is a “chronic condition requiring treatments.” Despite this prognosis,
Dr. Gardocki indicates that Ms. Newman is cleared to return to work on September 21, 2005.
Regardless, on or about June 23, 2006, Dr. Gardocki completed a second Certificate of
Health Care provider form. As discussed in more detail below, the June 23, 2006 certificate
corrected the April 10, 2006 form, which was marked in the record as “Error [/S/ Dr.
Gardocki’s initials] 6/23/06.”

       On April 10, 2006, Ms. Newman called and requested additional forms and asked
questions regarding completion of some of the forms. Three days later, on April 13, 2006,
Ms. Newman called MLGW, but did not leave any information regarding her work status.
On April 21, 2006, Ms. Newman called to say that she was still not attending physical
therapy, but she did not return to work or offer to do so. At this time, Mr. Bond reiterated
the importance of returning the physician’s form, and Ms. Newman stated that the physician
may have lost it, but that she would call to check on it. On April 28, 2006, Ms. Newman
called MLGW to say that she would not be in to work the following week. On May 5, 2006,
Ms. Newman left a message, stating that she would call back later; on May 12, 2006, Ms.
Newman called MLGW to inform her supervisor that she would be out the following week.

        On May 16, 2006, MLGW sent a letter to Ms. Newman instructing her to contact the
Human Resources Services Office by May 25, 2006 to provide proper documentation of her
absence from work. In the letter, MLGW reminded Ms. Newman of its Sick Leave and
Salary Continuation Policy (Personnel Policy 22-12), which requires employees to provide
a physician’s statement on the fifth day of absence and each twentieth day thereafter. The
letter warned that “failure to provide the required information will be considered job
abandonment and will result in termination.” In response to this letter, Ms. Newman called
MLGW on May 19th and 26th , and on June 2nd , 9th , 18th , and 26 th , stating that she would
continue to be out on sick leave. Also, on June 26, 2006, Ms. Newman called and stated that
she would be seeing her physician on June 29, 2006. On June 30, 2006, Ms. Newman called
to say that she was scheduled for additional testing on July 7th and 21 st, and that she would
continue to be out on sick leave pending the results.

        On June 23, 2006, MLGW received a second Certification of Health Care Provider
form from Dr. Gardocki. The June 2006 certification corrected the April 2006 certification,
which is discussed in greater detail above. While the April 2006 certification stated that Ms.
Newman’s condition was a “chronic condition requiring treatment,” the June 2006
certification indicated that her condition was not chronic, and did not require treatment. The
June 2006 certification excuses Ms. Newman from work only on those days that she was seen
in Dr. Gardocki’s office, i.e., September 8th and 20th , 2005, November 7, 2005, December 1,

                                             -3-
2005, January 3, 2006, February 22, 2006, and June 7, 2006. Other than these dates, the
certification indicates that Ms. Newman was cleared to work by Dr. Gardocki. The record
indicates that in addition to Dr. Gardocki, Ms. Newman also sought treatment from several
other physicians. Each of these doctors either released Ms. Newman from work on the days
that she was seeing them, or did not release her from work at all. One of these doctors, Dr.
Vasu, released Ms. Newman to return to work on December 13, 2005.

       On July 17, 2006, MLGW held a meeting to discuss Ms. Newman’s absence from
work. MLGW subsequently decided to terminate Ms. Newman’s employment effective
August 1, 2006. MLGW sent Ms. Newman a letter on August 1, 2006, informing her that
her employment had been terminated due to her failure to provide the necessary medical
documentation to substantiate her extensive absence from work. Specifically, the letter
explained that the medical documentation received from Ms. Newman’s treating physician
indicated that she had been released to work in September of 2005 and that her illness did
not qualify as a “serious health condition,” which made her ineligible for coverage under the
FMLA:

              [T]he medical documentation you provided indicated that you
              were released to return to work in late September of 2005.
              Furthermore, your treating physician indicated that your illness
              did not qualify as a “serious health condition” therefore you
              were not eligible for coverage under the FMLA. The
              information you have provided failed to cover your extensive
              time away from work.

        On September 29, 2006, Ms. Newman filed a claim for unemployment benefits with
Karla Davis, the Commissioner of the Tennessee Department of Labor and Workforce
Development (in her official capacity, and together with MLGW, “Appellees”). In her claim,
Ms. Newman informed the Department that she was still unable to perform her usual job
duties. On October 20, 2006, the Tennessee Department of Labor and Workforce
Development’s Employment Security Division (the “Agency”) found that Ms. Newman had
been forced to leave her most recent work because she was sick or disabled, but further held
that in accordance with Tennessee Code Annotated Section 50-7-303(a)(1), she was not
eligible for unemployment benefits until she returned to MLGW and offered to work as soon
as she was able to work again and perform her duties. Ms. Newman subsequently appealed
the Agency’s decision to its Appeals Tribunal. The Appeals Tribunal scheduled a hearing
for November 9, 2006. Ms. Newman attended the hearing, but refused to participate without
an attorney; Ms. Newman informed the Appeals Tribunal that she wanted it to subpoena her
medical records from her treating physicians. The Appeals Tribunal scheduled a second
hearing for Ms. Newman on December 5, 2006. Ms. Newman appeared at the December 5

                                             -4-
hearing, but again refused to participate without the aid of an attorney and without the
subpoena of her medical records. Based upon her failure to participate, the Appeals Tribunal
affirmed the Agency’s decision.

       Ms. Newman subsequently appealed to the Shelby County Chancery Court. The trial
court remanded the case to the Appeals Tribunal to allow Ms. Newman the opportunity to
subpoena the requested medical documentation. Ms. Newman’s medical records were
obtained, and the Appeals Tribunal scheduled a hearing for May 18, 2011. By letter ruling
of May 20, 2011, the Appeals Tribunal held that Ms. Newman was not eligible for
unemployment benefits because she had not satisfied all of the statutory requirements.
Specifically, the Appeals Tribunal found that Ms. Newman had not satisfied the statutory
requirement on two grounds. First, the Appeals Tribunal explained that in order to qualify
for unemployment benefits, Ms. Newman was required to have no medical restrictions and
to be able to return to her former duties at the time of filing for unemployment benefits.
Because Ms. Newman had admitted that she was not capable of performing her usual job
duties at the time she filed for unemployment benefits, the Appeals Tribunal determined that
she was ineligible for unemployment benefits. Second, the Appeals Tribunal ruled that Ms.
Newman was not eligible for unemployment benefits because MLGW had shown that Ms.
Newman engaged in work-related misconduct under the statutory guidelines. Specifically,
Ms. Newman had engaged in work-related misconduct by failing to provide MLGW with the
required medical documentation to excuse her , which was a violation of MLGW’s leave
policy. The Appeals Tribunal found that, after 2005, Ms. Newman had stopped submitting
medical documentation to her employer because her medical doctors had released her to
return to work, and that Ms. Newman had failed to follow MLGW’s leave policy.
Consequently, the Appeals Tribunal affirmed the Agency’s denial of unemployment benefits
to Ms. Newman.

      Ms. Newman then appealed the Appeals Tribunal’s decision to the Commissioner’s
Designee.1 By letter ruling of August 19, 2011, the Commissioner’s Designee adopted the


       1
           The procedure for filing unemployment benefits claims and appeals is set out in full detail at
Tennessee Code Annotated Section 50-7-304. We will not tax the length of this opinion to reproduce the
entire statute here. However, we note that Section 50-7-304(e)(1) allows for Commissioner’s Desginees as
follows:

                The commissioner shall designate Tennessee licensed attorneys within the
                department of labor and workforce development to adjudicate appeals of
                the decision of the unemployment hearing officer. The individuals so
                designated shall be referred to as the commissioner's designees and will
                constitute a part of the department of labor and workforce development's
                                                                                           (continued...)

                                                  -5-
Appeals Tribunal’s findings, and affirmed its decision. Although the Commissioner’s
Designee found that Ms. Newman had misunderstood the FMLA and how it interacts with
unemployment law, the Commissioner’s Designee framed the issue on appeal as “whether
[Ms. Newman] left work due to an illness or injury, notified [MLGW] of the need to leave,
and ha[d] been released to return to work without restrictions.” The Commissioner’s
Designee found that Ms. Newman left work due to an illness or injury, and that she had
notified MLGW. However, the Commissioner’s Designee further found that Ms. Newman
had been medically released to return to work since December 13, 2005, but that she had
failed to return. The Commissioner’s Designee stated that Ms. Newman’s failure to return
to work was disqualifying under the medical exception set out at Tennessee Code Annotated
Section 50-7-303, regardless of Ms. Newman’s subjective belief that she was not capable of
performing her job at that time. The Commissioner’s Designee further ruled that even if it
was true that Ms. Newman could not perform her usual job functions when she filed for
unemployment benefits, this was still disqualifying under the medical exception. The
Commissioner’s Designee ruled that the fact that Ms. Newman’s employment had been
terminated prior to her being released to return to work did not relieve Ms. Newman from
her obligation to fulfill the final requirement, which was to return to MLGW and offer
herself for work. Finally, the Commissioner’s Designee found that Ms. Newman had
voluntarily quit her job when she failed to return to work after being released by her doctors,
and that this fact could also be disqualifying because Ms. Newman’s personal belief that she
could not perform her job duties is considered a personal reason to leave and not good cause
connected to work.

       On August 26, 2011, Ms. Newman petitioned the Commissioner’s Designee to rehear
her appeal. On September 26, 2011, the Commissioner’s Designee ruled that the petition to
rehear did not provide any additional, relevant information to be considered that was not
included in its prior review, or that would affect the outcome of the case. Accordingly, the
Commissioner’s Designee denied Ms. Newman’s petition to rehear.

       On September 27, 2011, Ms. Newman filed a petition for judicial review in the Shelby
County Chancery Court, requesting reversal of the Commissioner’s Designee’s decision. The
Administrative Record was obtained, and the Chancery Court held oral argument on the
petition on November 19, 2011. Following oral argument, by order of January 2, 2013, the
Chancellor affirmed the Commissioner’s Designee’s decision, finding that the decision was
supported by substantial and material evidence in the record. The Chancellor specifically
adopted the following findings, which were made by the Commissioner’s Designee:



       1
           (...continued)
                   legal division.

                                              -6-
              [Ms. Newman] was involved in a car accident on August 20,
              2005, and saw Dr. Gardocki who released her to return to work
              on September 21, 2005. [Ms. Newman] did not agree that she
              was able to return to work so she saw Dr. Vasu who released her
              to return to work on December 13, 2005. [Ms. Newman] saw
              several other doctors but none who took her off work or excused
              her from work for more than the day she was in his office. [Ms.
              Newman] was discharged on August 1, 2006, because she had
              not provided the Employer with medical information to excuse
              her nearly year-long absence and had not returned to work.

The Chancellor went on to hold that there was a reasonable basis in law to support the
Commissioner’s Designee’s decision that Ms. Newman was ineligible for unemployment
benefits. Specifically, the Chancellor adopted the following conclusions of law, which were
made by the Commissioner’s Designee:

              The issue in this case is simple, whether [Ms. Newman] left
              work due to an illness or injury, notified her Employer of the
              need to leave, and has been released to return to work without
              restrictions. She must also show that once being released to
              return to work without restrictions that she did so within a
              reasonable time.

              [Ms. Newman] left work due to an illness or injury. She
              notified her Employer. She has been medically released to
              return to work since December 13, 2005, and has not returned.
              This is disqualifying under the medical exception regardless of
              her belief that she was not capable of performing her job at that
              time. [Ms. Newman] does not qualify for unemployment
              benefits under the medical exception.

              As a note for the record, [although] [Ms. Newman’s] doctor
              believed she could have returned to work well before her firing
              date, [Ms. Newman] contends that she was unable to perform
              her usual duties on the date she filed her claim. Either [Ms.
              Newman] could perform her usual duties as her doctors found
              and she failed to return to the Employer and offer herself for
              work within a reasonable time or [Ms. Newman] was not able to
              perform her usual duties, as she contends, at the time she filed
              her claim which is also [] disqualifying under the medical

                                             -7-
              exception. Being terminated prior to being released to return to
              work does not relieve [Ms. Newman] of fulfilling the final
              requirement and returning to her Employer and offering herself
              for work.

              She could also be considered to have quit her job based on job
              abandonment when she failed to return to work after being
              released. This would be disqualifying because her belief that
              she could not perform the job is considered a personal reason to
              leave and not good cause connected to work.

              Even if this case had been considered as a discharge under
              T.C.A. §50-7-303(a)(2), the facts establish the claim would still
              have been disqualified as misconduct because [Ms. Newman]
              breached the duty owed to the Employer to return to work when
              she was released by the doctor. However, the Commissioner’s
              Designee find[ing] the analysis as a voluntary leaving under
              T.C.A. §50-7-303(a)(1) is substantiated under the facts of this
              case.

       Ms. Newman subsequently filed a motion for relief from judgment or, alternatively,
to amend the judgment, requesting the Chancery Court to reconsider its findings that she was
not eligible for unemployment benefits and to alter the order to exclude reference to
discharge under Tennessee Code Annotated Section 50-7-303(a)(2). The Chancery Court
denied Ms. Newman’s motion for relief by order of February 13, 2013.

       Ms. Newman appeals. She raises four issues as stated in her brief:

              1. Whether the Plaintiff left work due to illness or injury.

              2. Whether the Plaintiff’s termination was lawful under the
              facts of this case.

              3. Whether misconduct was an issue at the administrative
              hearing.

              4. Whether the plaintiff voluntarily quit her job.

We perceive that there is one dispositive issue, which we state as follows:



                                             -8-
              Whether there is substantial and material evidence in the
              administrative record, and a reasonable basis in law, to support
              the Commissioner’s Designee’s decision to deny Ms. Newman
              unemployment benefits under Tennessee Code Annotated
              Section 50-7-303(a)(1)?

       Before addressing the substantive issue, we first note that Ms. Newman has acted pro
se throughout these proceedings. It is well settled that pro se litigants must comply with the
same standards to which lawyers must adhere. As explained by this Court:

              Parties who decide to represent themselves are entitled to fair
              and equal treatment by the courts. The courts should take into
              account that many pro se litigants have no legal training and
              little familiarity with the judicial system. However, the courts
              must also be mindful of the boundary between fairness to a pro
              se litigant and unfairness to the pro se litigant's adversary. Thus,
              the courts must not excuse pro se litigants from complying with
              the same substantive and procedural rules that represented
              parties are expected to observe.

Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn. Ct.
App. Aug.12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App.
2003)). With the foregoing in mind, we turn to address Ms. Newman’s issue.

       In an appeal from an agency decision regarding unemployment compensation benefits,
both the trial court and this Court apply the standard of review set forth in Tennessee Code
Annotated section 50-7-304(i)(2):

              (2) The chancellor may affirm the decision of the commissioner
              or the chancellor may reverse, remand or modify the decision if
              the rights of the petitioner have been prejudiced because the
              administrative findings, inferences, conclusion 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 that is both substantial and
              material in light of the entire record.

                                              -9-
“When the evidentiary basis of a decision involving an unemployment compensation claim
is attacked, Tennessee Code Annotated Sections 50-7-304(i)(2)(D) and (E) direct the courts
to review the entire record, including any proof that fairly detracts from the agency's
decision, to determine whether it is arbitrary, capricious, characterized by an abuse of
discretion, or unsupported by substantial and material evidence.” Armstrong v. Neel, 725
S.W. 2d 953, 955 (Tenn. Ct. App.1986) (footnote omitted). The court may not substitute its
judgment for that of the Commissioner's Designee as to the weight of the evidence on
questions of fact, and the decision of the Commissioner's Designee may not be reversed,
remanded or modified except for errors affecting the merits of the final decision of the
Commissioner’s Designee. Tenn. Code Ann. § 50-7-304(i)(3).

       “[T]he burden of producing substantial and material evidence is not an onerous one.”
Roberts v. Traughber, 844 S.W.2d 192, 196 (Tenn. Ct. App.1991). “Substantial and material
evidence simply means ‘such relevant evidence as a reasonable mind might accept to support
a rational conclusion and such as to furnish a reasonably sound basis for the action under
consideration.’” Id. (quoting First Tenn. Nat'l Bank Ass'n v. Jones, 732 S.W.2d 281, 283
(Tenn. Ct. App. 1987)). In addition, “[c]ourts should not disturb a reasonable decision of any
agency which has expertise, experience and knowledge in a particular field.” Millen v. Tenn.
Dept. of Labor and Workforce Dev., 205 S.W.3d 929, 932 (Tenn. Ct. App. 2006) (quoting
Ford v. Traughber, 813 S.W.2d 141, 144 (Tenn. Ct. App. 1991)).

        Because Tennessee's unemployment statutes were enacted for the benefit of
unemployed workers, our Supreme Court has held that the statutes “should be construed
liberally in the employee's favor and that the disqualification provisions in the statutes should
be construed narrowly.” Armstrong, 725 S.W.2d at 955 (citing Weaver v. Wallace, 565
S.W.2d 867, 869–70 (Tenn. 1978)). An employer bears the burden of proving that an
employee should be disqualified from receiving unemployment compensation benefits. Id.
(citing Weaver, 565 S.W.2d at 870); see also Cherry v. Suburban Mfg. Co., 745 S.W.2d
273, 275 (Tenn. 1988) (”[I]n order to establish a [work-related conduct] disqualification
there must be shown a material breach of such duty which the employee owes to the
employer.”).

       As discussed above, in this case, the Commissioner's Designee determined that Ms.
Newman was discharged for misconduct connected with her work, as provided in Tennessee
Code Annotated section 50-7-303(a)(2), and therefore, that her claim for unemployment
compensation benefits was properly denied. Specifically, Ms. Newman was found to have
failed to comply with MLGW’s Leave Policy to provide medical documentation to
substantiate her extended leave of absence. In the alternative, Ms. Newman was deemed
ineligible for unemployment benefits because she failed to satisfy the requirement for
unemployment benefits under the medical exception of the Tennessee Employment Security

                                              -10-
Law. The Chancery Court adopted these findings, which we are asked to review against the
record on appeal. Before doing so, we pause to briefly discuss the applicability of the
FMLA.

                                             FMLA

        From our review of Ms. Newman’s appellate brief, and from the findings of the
Chancellor, supra, throughout these proceedings, Ms. Newman has maintained that her
employment was unlawfully terminated, and that she was unlawfully denied unemployment
benefits. We glean from Ms. Newman’s arguments that she is of the opinion that because
she was still receiving medical treatment at the time she filed for unemployment benefits, her
leave was protected under the FMLA. As correctly noted by both the Commissioner’s
Designee and the trial court, it is clear that Ms. Newman “misunderst[ands] the FMLA and
how it interacts with unemployment law.” Ms. Newman argues that the termination of her
employment was unlawful because she was protected under the FMLA. However, it is well
settled that an employee’s absence for an illness is not protected under the FMLA unless it
constitutes a “serious medical condition.” As that term is defined under the FMLA, a
“serious medical condition” renders the employee “unable to perform the functions of his [or
her] position.” Austin v. Shelby County Government, 3 S.W. 3d 474, 478 (Tenn. Ct. App.
1999) (citing Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir.1996); 29 U.S.C. §
2612(a)(1)). In Austin, this Court held that the plaintiff’s absence from work was not
protected under the FMLA where the evidence did not establish that the plaintiff was unable
to perform the functions of his job, and where the certification form signed by his physician
failed to indicate that the plaintiff’s condition would require him to miss any work. Id.;
accord Brannon v. OshKosh B’Gosh, Inc., 897 F. Supp. 1028, 1037 (M.D. Tenn. 1995)
(holding that the plaintiff’s absences from work were not protected by the FMLA where the
physician failed to find that the plaintiff should remain off work and, in fact, provided
plaintiff with a “certificate to return to work or school.”). Likewise, in the instant case, there
is substantial and material evidence to support the finding that Ms. Newman failed to provide
medical documentation demonstrating that she had a “serious health condition” that rendered
her unable to perform her job functions. Her subjective belief that she was not able to
perform these functions is not sufficient to satisfy the FMLA requirement. Here, the record
indicates that MLGW received medical documentation from Ms. Newman’s treating
physicians. However, none of these doctors excused Ms. Newman from work except on
those days that she was seen in their offices. Every doctor opined that Ms. Newman’s
condition did not qualify as a “serious health condition” under the FMLA. Accordingly, we
can only conclude that Ms. Newman’s leave was not protected under the FMLA.

                                          Misconduct



                                              -11-
        Tennessee Code Annotated Section 50-7-303(a)(2)(A) provides that “[a] claimant
shall be disqualified for [unemployment] benefits: . . . [i]f the administrator finds that a
claimant has been discharged from the claimant’s most recent work for misconduct
connected with the claimant's work [.]” There was no definition of misconduct in the
unemployment compensation statutes at the time Ms. Newman was fired. However, a
definition of “misconduct” was added to the unemployment compensation statutes, effective
January 1, 2010, by Chapter 479 of the 2009 Public Acts of Tennessee. Section 50-7-
303(b)(3)(A) now defines “misconduct” to include:

              (i) Conscious disregard of the rights or interests of the employer;

              (ii) Deliberate violations or disregard of reasonable standards of
              behavior that the employer expects of an employee;

              (iii) Carelessness or negligence of such a degree or recurrence
              to show an intentional or substantial disregard of the employer's
              interest or to manifest equal culpability, wrongful intent or
              shows an intentional and substantial disregard of the employer's
              interests or of the employee's duties and obligations to the
              employee's employer;

              (iv) Deliberate disregard of a written attendance policy and the
              discharge is in compliance with such policy;

              (v) A knowing violation of a regulation of this state by an
              employee of an employer licensed by this state, which violation
              would cause the employer to be sanctioned or have the
              employer's license revoked or suspended by this state; or

              (vi) A violation of an employer's rule, unless the claimant can
              demonstrate that:

              (a) The claimant did not know, and could not reasonably know,
              of the rule's requirements; or
              (b) The rule is unlawful or not reasonably related to the job
              environment and performance[.]

       As set out above, Tennessee Code Annotated Sections 50-7-303(b)(3)(A)(iv) and (v)
define misconduct to include an employee’s “[d]eliberate disregard of a written attendance
policy,” or “[a] violation of an employer’s rule.” Although the foregoing definitions were

                                             -12-
not in place at the time of the initial determination that Ms. Newman was disqualified from
receiving unemployment benefits based upon misconduct, case law decided prior to the
statutory amendment clearly indicates that an employee who violates a known company
policy, or fails to follow any legal/reasonable employer directive, is considered guilty of
work-related misconduct. For example, we have found that an employee who knowingly
failed to follow her manager's directive to tuck in her shirt, in compliance with the company
dress code, was not entitled to unemployment benefits when she was fired because she was
guilty of work-related misconduct. Hallowell v. Vestco, Inc., 2005 WL 1046795 (Tenn. Ct.
App. May 4, 2005). Other examples of employees disqualified from receiving unemployment
benefits for work-related misconduct include an employee who was asked by the employer
to stop asking female co-workers out in violation of company policy but failed to do so; an
employee who was dishonest with management when questioned about an improper voice
mail left for his supervisor; and an employee who repeatedly failed to call in sick even
though she had a valid excuse. Ruff v. Neeley, No. W2006-01192-COA-R3-CV, 2006 WL
3734641 (Tenn. Ct. App. Dec. 20, 2006), perm. app. denied (Tenn. May 21, 2007); Schwartz
v. Neely, No. W2007-01862-COA-R3-CV, 2008 WL 539223 (Tenn. Ct. App. Feb. 28, 2008),
perm. app. denied (Tenn. Aug. 25, 2008); Stanford v. Commissioner, No.
W2004-02373-COA-R3-CV, 2005 WL 1833734 (Tenn. Ct. App. Aug. 2, 2005).

        From our review of the record, there is substantial and material evidence to support
the finding that Ms. Newman was in violation of MLGW’s leave policy. As contained in the
record, MLGW’s Sick Leave and Salary Continuation Policy (Personnel Policy 22-12)
requires all employees to provide a physician’s statement verifying his or her disability on
the fifth day of any absence and then each twentieth day thereafter. Although Ms. Newman
did complete the required form on the fifth day of her absence, the record undisputedly
indicates that she failed to provide a physician’s statement verifying her disability every
twenty days thereafter. Under Tennessee Code Annotated Section 50-7-303(b)(3)(A)(vi)(a),
an employee’s violation of an employer’s rules may be excused if the employee “did not
know, and could not reasonably know, of the rule's requirements.” Unfortunately, that is not
the case in the instant appeal. The record shows that on March 15, 2006, Mr. Bond called
Ms. Newman to check on the status of her absence from work. The next day, March 16,
2006, Mr. Bond contacted MLGW’s Insurance Department regarding any information
supplied to substantiate Ms. Newman’s absence. As a result of Mr. Bond’s inquiry, the
Insurance Department sent copies of its Leave Policy and the required Certificate of Health
Care Provider forms to Ms. Newman, with instructions that the forms would need to be
completed before she could return to work. When it did not receive the forms from Ms.
Newman, MLGW mailed a letter to her, dated May 16, 2006, to remind her of her duty to
provide proper documentation of her absence from work. This letter warned that “failure to
provide the required information will be considered job abandonment and will result in
termination.” Ms. Newman does not dispute receipt of these letters; however, the record

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clearly indicates that Ms. Newman failed to provide any medical documentation, which
would excuse her prolonged absence from work. Rather, as discussed above, Ms. Newman’s
treating physician stated that she had been released to return to work in September of 2005
or, at latest, in December of 2005. The record simply does not support a finding that Ms.
Newman had a justifiable reason for her extensive absence from work; thus, the finding of
misconduct is supported by substantial and material evidence in the record. Misconduct is
a disqualifying event under Tennessee Code Annotated Section 50-7-303(a)(2)(A).

       Having determined that the finding of misconduct is sufficiently supported in the
record, our normal course would be to pretermit discussion of any additional grounds for
disqualification. However, Ms. Newman has made cogent arguments on appeal; accordingly,
we will endeavor to thoroughly adjudicate this appeal and to fully explain the basis for our
decision. To that end, we will briefly discuss why the medical exception to disqualification
from unemployment benefits is not fertile ground for reversal of the trial court in this case.

                                    Medical Exception

       Tennessee Code Annotated Section 50-7-303(a)(1)(A) provides, in relevant part, that:

              (a) Disqualifying Events. A claimant shall be disqualified for
              benefits:

              (1)(A) If the administrator finds that the claimant has left the
              claimant’s most recent work voluntarily without good cause
              connected with the claimant's work. The disqualification shall
              be for the duration of the ensuing period of unemployment and
              until the claimant has secured subsequent employment covered
              by an unemployment compensation law of this state, another
              state, or the United States, and was paid wages by the
              subsequent employment ten (10) times the claimant's weekly
              benefit amount. No disqualification shall be made under this
              section, however, if the claimant presents evidence supported by
              competent medical proof that the claimant was forced to leave
              the claimant's most recent work because the claimant was sick
              or disabled and notified the claimant's employer of that fact as
              soon as it was reasonably practical to do so, and returned to that
              employer and offered to work as soon as the claimant was again
              able to work, and to perform the claimant's former duties . . . .
              At the expiration of the period, if the claimant is not
              reemployed, the claimant shall be entitled to unemployment

                                             -14-
              benefits under this chapter, if otherwise eligible under this
              chapter. . . .

       Whether Ms. Newman voluntarily quit her job, or whether she was discharged by
MLGW, there is substantial and material evidence in the record to support the
Commissioner’s Designee’s decision that she was not qualified for unemployment benefits
under this section. As set out in the statute, in order to qualify for unemployment benefits,
Ms. Newman was required to provide competent medical proof that she was forced to leave
her most recent employment because she was sick or disabled, that she notified MLGW as
soon as reasonably practical, and that she returned to MLGW and offered herself for work
as soon as she was able to perform her former job duties without restrictions. Tenn. Code
Ann. § 50-7-303(a)(1)(A).

        Here, it is undisputed that Ms. Newman left work due to injury from her automobile
accident, and that she notified MLGW of that fact. However, Ms. Newman failed to return
to work when she was released by Dr. Gardocki in September or 2005, or at the latest when
Dr. Vasu released her in December of 2005. Whether Ms. Newman disagreed with her
physicians’ opinion is not germane to the inquiry. Even if we assume, arguendo, that Ms.
Newman was unable to return to work and that she could not perform her former job duties
at the time she applied for unemployment benefits, this fact would still disqualify her from
unemployment benefits under the statute. Tenn. Code Ann. §50-7-303(a)(1)(A). This is
because the statute clearly requires Ms. Newman to be able to perform her job duties at the
time she applies for unemployment benefits. Id. Accordingly, Ms. Newman clearly did not
qualify for unemployment benefits either for failing to return to work within a reasonable
time after being released and able to perform her job functions as stated by her physicians,
or because she was unable to perform her job duties without restriction at the time she
applied for benefits.

       Because there is clear and convincing evidence in the record, and a reasonable basis
in law to support the Commissioner’s Designee’s decision that Ms. Newman was not
qualified to receive unemployment benefits, we affirm the order of the trial court, affirming
the Commissioner’s Designee’s findings. The case is remanded for such further proceedings
as may be necessary and are consistent with this Opinion. Costs of the appeal are assessed
against the Appellant, Clementine Newman. Because Ms. Newman is proceeding in forma
pauperis in this appeal, execution may issue for costs if necessary.




                                                   _________________________________
                                                   J. STEVEN STAFFORD, JUDGE

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