                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                 ______________________________________________

DORIS J. BRIDGES,

       Appellant,
                                                     Shelby Chancery No. 107732
Vs.                                                  C.A. No. 02A01-9704-CH-00074

MARGARET C. CULPEPPER,
Commissioner of the Tennessee
Department of Employment
                                              FILED
Security; and
                                             September 24, 1997
INTERNAL REVENUE SERVICE,
                                              Cecil Crowson, Jr.
                                     Appellate C ourt Clerk
      Appellees.
____________________________________________________________________________

                    FROM THE SHELBY COUNTY CHANCERY COURT
                     THE HONORABLE NEAL SMALL, CHANCELLOR




                          Sheila L. Robinson-Beasley of Memphis
                                       For Appellant

                    John Knox Walkup, Attorney General and Reporter
                      Kimberly M. Frayn, Assistant Attorney General
               For Appellee, Tennessee Department of Employment Security

                        Veronica F. Coleman, United States Attorney
                       Joe A. Dycus, Assistant United States Attorney
                           For Appellee, Internal Revenue Service



                              AFFIRMED AND REMANDED

                                        Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.


CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY KIRBY LILLARD, JUDGE
    This appeal involves the denial of unemployment compensation benefits. Plaintiff Doris

J. Bridges appeals the decree of the chancery court which dismissed her petition for certiorari

and affirmed the denial of benefits by the Board of Review of the Tennessee Department of
Employment Security.

          Doris J. Bridges had been an employee of the Internal Revenue Service in Memphis for

over twenty-two years when she accepted an offer of voluntary early retirement. The IRS issued

a memorandum in which employees who were at least fifty years old with twenty years of

service, or who had at least twenty-five years of service regardless of age, could opt to

voluntarily retire if they accepted the offer to do so between May 1, 1995 and September 30,

1995. It is undisputed that without this special program Ms. Bridges would not have been

eligible for retirement and that eligible employees received no financial incentive to retire other

than the early receipt of their government pensions. Ms. Bridges voluntarily retired under the

IRS’s Voluntary Early Out Retirement program on May 2, 1995, one day into the eligibility

period.

          On February 1, 1996 Ms. Bridges filed a claim for unemployment insurance benefits with

the Tennessee Department of Employment Security (TDES). Her claim was denied on February

23, 1996 because TDES found that she had voluntarily quit her employment without good cause

connected with her work and thus was ineligible for benefits pursuant to T.C.A. § 50-7-303(a)(1)

(Supp. 1996). The Appeals Tribunal affirmed this decision on March 29, 1996 and added that

there was no “evidence that her retirement was due to an established plan by the employer which

because of a lack of work, would have permitted her to accept a separation from employment.”

Ms. Bridges appealed to the Board of Review on April 1, 1996. On April 29, 1996 the Board

of Review adopted the findings of the Appeals Tribunal and affirmed its decision denying

unemployment compensation benefits. Ms. Bridges’ request for a rehearing by the Board was

denied, and her petition for certiorari was subsequently denied by the chancery court.

          Ms. Bridges appeals the judgment of the chancery court, and the sole issue for our review

is whether the chancellor erred in affirming the Board of Review’s denial of unemployment

compensation benefits. Appellant argues that even if she could not show good work related

cause for leaving her employment, her claim for benefits should be allowed because she qualifies

for the “lack of work” and/or the “labor-management contract or agreement” exceptions of

T.C.A. § 50-7-303(c)(1).

          The standard for judicial review of a TDES Board of Review decision regarding

unemployment benefits is set forth in T.C.A. § 50-7-304(i) which provides in pertinent part:


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               (2) 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.

               (3) In determining the substantiality of evidence, the chancellor

               shall take into account whatever in the record fairly detracts from

               its weight, but the chancellor shall not substitute the chancellor’s

               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) (Supp. 1996). This Court must apply the same standard as the trial court

in reviewing the trial court’s decision in an unemployment compensation case. Ford v.

Traughber, 813 S.W.2d 141, 144 (Tenn. App. 1991). Therefore, in reviewing TDES’s findings

of fact, we are constrained to a determination of whether there is substantial and material

evidence to support the findings. “Substantial and material evidence is 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.” Southern Ry. Co. V. State Bd. Of

Equalization, 682 S.W.2d 196, 199 (Tenn. 1984) (citations and internal quotations omitted).

If the record contains such evidence, we are limited to a review of the questions of law presented.

Perryman v. Bible, 653 S.W.2d 424, 429 (Tenn. App. 1983).

       An individual is disqualified from receiving unemployment compensation benefits where

the claimant “left such claimant’s most recent work voluntarily without good cause connected

with such claimant’s work.” T.C.A. § 50-7-303(a)(1) (Supp. 1996). The TDES issued its initial


                                                3
decision denying the appellant’s claim on February 23, 1996. The agency found that appellant

had voluntarily quit her employment without good work related cause and disqualified the

appellant for benefits pursuant to T.C.A. § 50-7-303(a)(1). It is undisputed in this case that Ms.

Bridges voluntarily left the employment of the IRS to retire early. Although it is unclear from

appellant’s brief whether Ms. Bridges contests the Board’s finding that she left work without

good cause, or if she relies instead on her argument that one of the statutory exceptions to this

requirement applies to her case, we feel it is prudent to address the good cause issue.

       In Frogge v. Davenport, 906 S.W.2d 920, 924 (Tenn. App. 1995), we noted that the term

“good cause” is not defined in T.C.A. § 50-7-303, but found the following discussion from 81

C.J.S. Social Security and Public Welfare § 226 (1977) to be helpful:

               In general, “good cause,” as used in an unemployment
               compensation statute, means such a cause as justifies an
               employee’s voluntarily leaving the ranks of the employed and
               joining the ranks of the unemployed; the quitting must be for such
               a cause as would reasonably motivate in a similar situation the
               average able-bodied and qualified worker to give up his or her
               employment with its certain wage rewards in order to enter the
               ranks of the compensated unemployed. The terms “good cause”
               and “personal reasons” connote, as minimum requirements, real
               circumstances, substantial reasons, objective conditions, palpable
               forces that operate to produce correlative results; adequate
               excuses that will bear the test of reason; just grounds for action.
               The test is one of ordinary common sense and prudence.

               In order to constitute good cause, the circumstances which
               compel the decision to leave employment must be real, not
               imaginary, substantial not trifling, and reasonable, not whimsical;
               there must be some compulsion produced by extraneous and
               necessitous or compelling circumstances.

        Utilizing this guidance in interpreting the “good cause” requirement of the statute, this

Court has held that an individual’s voluntary decision to quit which was motivated only by

speculation that he would lose his job and his accumulated benefits was not good cause to leave

his employment. Frogge, 906 S.W.2d at 924. See also, Hill v. Kelly, No. 17531(T) C.A. No.

127, 1987 WL 15855 (Tenn. App. W.S. 1987). Similarly, this court feels that without more, Ms.

Bridges’ alleged fear that she would lose her job and benefits if she did not voluntarily retire is

not sufficient to show good cause.

        Appellant Bridges argues essentially that even if good cause is not shown she is qualified

for benefits pursuant to the “lack of work” exception of the statute which provides:

               (c) QUALIFICATIONS. Notwithstanding any other provision of

                                                4
               law to the contrary: (1) Benefits shall not be denied under this
               chapter to any otherwise eligible claimant for separation from
               employment pursuant to a labor-management contract or
               agreement, or pursuant to an established employer plan, program,
               policy, layoff or recall which permits the claimant (employee),
               because of lack of work, to accept a separation from employment.

T.C.A. § 50-7-303(c)(1) (Supp. 1996). Bridges argues that the IRS offered the early out

retirement as part of the general downsizing of the government and that this offer was made

because there was a lack of work at the IRS. Ms. Bridges claims that she opted to retire early

because she was in fear of later being forced out without any retirement benefits. The IRS

vigorously denies that there was a lack of work and are quick to point out that Ms. Bridges

accepted the offer to retire during the second day of the window of opportunity without

discussing the matter with her supervisor. The only evidence in the record of a lack of work at

the IRS are statements to that effect by Ms. Bridges and her contention that the IRS would not

offer early retirement if there was no lack of work. Ms. Bryant, Labor Relations Specialist for

the IRS, testified before the appeals tribunal that there was still work available at the IRS and

that even if some positions were eliminated, there would be work for those employees elsewhere

within the service. Ms. Bridges admitted that no one at the IRS told her she would lose her job

if she did not retire. In addition, Ms. Bridges was classified as “redeployment eligible” and

conceded that due to her seniority she “maybe could have stayed longer.” We find that there is

substantial and material evidence in the record to support the Board of Review’s finding that

there was no lack of work at the IRS. The Board properly exercised its discretion in accordance

with law and did not act arbitrarily or capriciously.

       For the first time on appeal, appellant’s counsel also argues that the early retirement

program was a labor-management contract or agreement and that she should fall within that

exception to the good cause requirement. The parties dispute the interpretation of T.C.A. § 50-7-

303(c)(1), with the appellant urging that if there is a “labor-management contract or agreement”

it is unnecessary for the claimant to also show that there was a lack of work. This Court need

not decide this issue of statutory interpretation because we find that there is no evidence that the

unilateral offer of voluntary early retirement was any sort of contract or agreement between labor

and management. Although we were unable to find any cases on point, this Court presumes that

when the drafters added this phrase they contemplated some sort of collective bargaining



                                                 5
agreement or bargained for exchange and not a unilateral offer from an employer.

        The appellant also contends that the Board of Review and the Chancellor erred in

refusing to consider additional evidence that she offered to show that the agency’s decision was

arbitrary and capricious. Appellant asserts in her brief to this Court that in seeking a rehearing

of her case she notified the Board of Review that she was prepared to offer the testimony of three

witnesses who allegedly retired under the same early retirement program, but were subsequently

allowed to collect unemployment benefits. Appellant argues that under the Administrative Rules

and Procedures Act, new evidence is admissible upon judicial review if the court is satisfied that

the evidence is material and that there were good reasons for failure to present it in the

proceeding before the agency. However, as the appellee TDES correctly points out, the

Department of Employment Security is expressly excepted from this provision.

        This Court must affirm the chancery court’s judgment if we find that the Board of

Review did not act arbitrarily or capriciously and there is substantial and material evidence to

support its findings. The refusal of the Board to grant a rehearing will not be found to be

arbitrary or capricious unless the appellant can “show specifically why [she] was unable to

procure the ‘newly discovered’ evidence and that [she] exercised due diligence in attempting to

obtain the evidence prior to” the hearing. See Brown v. Weik, 725 S.W.2d 938, 947 (Tenn. App.

1983). Although the Brown controversy was in a trial court, we see no reason that this rule

should not be equally applicable to an administrative hearing. Ms. Bridges had ample

opportunity to discover and present the “new” evidence, but failed to do so until her claim was

denied three times. The record also shows that Ms. Bridges arrived at the Appeals Tribunal

hearing without important documentary evidence to support her case--not even the IRS

memorandum upon which she was basing her entire case. Ms. Bridges did not mention any

possible witnesses until after her claim was denied by the Board of Review. This Court does not

find that the Board acted arbitrarily or capriciously when it was simply relying on the record

before it.

        The judgment of the chancery court affirming the Board of Review’s decision is

affirmed, and the case is remanded for such further proceedings as necessary. Costs of appeal

are assessed against the appellant.

                                                      _________________________________


                                                6
                                           W. FRANK CRAWFORD,
                                           PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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