                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                Assigned on Briefs March 22, 2013

       RENITA DULANEY v. KARLA DAVIS, COMMISSIONER OF
       TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE
              DEVELOPMENT and FEDERAL EXPRESS

                 Direct Appeal from the Chancery Court for Shelby County
                     No. CH-11-1193-1     Walter L. Evans, Chancellor


                     No. W2012-01020-COA-R3-CV - Filed April 24, 2013


This case involves a claimant’s right to unemployment compensation benefits. After initially
being awarded such benefits, claimant was denied benefits based upon a finding that she had
refused to return to her former position after being medically released to do so. The chancery
court, however, reinstated her benefits concluding that her due process rights had been
violated when a telephone hearing–as opposed to a face-to-face hearing–was conducted. We
reverse the chancery court’s conclusion that the telephonic hearing violated claimant’s due
process rights and we dismiss the case.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter, Warren Jasper, Senior Counsel,
Nashville, Tennessee, for the appellant, Karla Davis, Commissioner, Department of Labor
and Workforce Development

No appearance on behalf of the appellee, Renita Dulaney


                                       M EMORANDUM O PINION1

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee states:
                                                                                  (continued...)
                                I.   F ACTS & P ROCEDURAL H ISTORY

        Renita Dulaney was employed by Federal Express (“FedEx”) from February 1998 to
January 13, 2011, last working as a ramp agent.2 On March 14, 2010, Ms. Dulaney
sustained a work-related injury when her “back went out[,]” and she was placed on leave
from March 23 to August 11, 2010 during which time she received workers’ compensation
benefits. On July 12, 2010, Ms. Dulaney was examined by a physician 3 who stated in an
“Employment Report” that she could return to work immediately subject to certain physical
restrictions:

       The patient is restricted to 5 pounds continuous lifting, 10 pounds intermittent
       lifting and 2 hours of continuous sitting, 2 hours continuous standing, 2 hours
       continuous walking; and restricted from climbing, kneeling, bending, stooping,
       twisting, push/pull, reaching and lifting over the shoulder activity, driving at
       work and operating machinery. There are no other restrictions.


        Ms. Dulaney apparently returned to work on August 11, 2010 subject to these
restrictions.

       Later in August 2010, the physical restrictions were lifted by an employer-selected-
physician, and Ms. Dulaney attempted to return to full duty. However, she continued to
complain of difficulty in performing her duties as a ramp agent, and she was again placed on
leave pending another employer-selected-physician evaluation. The physician again released
Ms. Dulaney to full-duty on September 3, 2010. However, during this time period, Ms.
Dulaney contacted her primary physician, Dr. Leal, who, on September 9, 2010, provided a
ten-day work “Excuse Slip” covering early to mid-September due to “severe lower back


       1
        (...continued)
       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
       2
         According to the Tennessee Department of Labor and Workforce Development, Employment
Security Division, Appeals Tribunal, Ms. Dulaney’s job as a ramp agent required her to “push and pull
items.”
       3
           It is unclear whether this physician was employee-selected or employer-selected.

                                                     -2-
pain[.]” According to Ms. Dulaney,4 Dr. Leal arranged for her to see a specialist, but the
specialist refused to see her after learning that she was involved in a workers’ compensation
case.

        In a September 8, 2010 letter from FedEx, Ms. Dulaney was notified that she had been
released to return to regular duty work by the employer-selected-physician, and that she could
either: (1) return to her former position as a ramp agent effective September 11, 2010; (2)
take a 90-day personal leave of absence during which time she could apply for other
positions with the company for which she was qualified; or (3) voluntarily resign her
employment with FedEx. Ms. Dulaney selected the 90-day leave option, and during this
period she applied for three positions. However, FedEx determined that Ms. Dulaney did not
meet the minimum qualifications for two of the positions and that her application packet was
incomplete regarding the third position. Thus, Ms. Dulaney did not secure another position
within the company.

        In November 2010, Ms. Dulaney self-arranged an appointment at The Wootton Clinic
and Medical Center, where a nurse practitioner supplied a “Work Release” for the period of
December 6, 2010 to January 2, 2011 due to her being treated for “lumbar IVD and
sciatica[.]” However, the Work Release indicated that Ms. Dulaney could return to full duty
on January 3, 2011.5 Ms. Dulaney never returned to work, and on January 13, 2011, FedEx
terminated Ms. Dulaney’s employment.

       On January 27, 2011, Ms. Dulaney filed a claim for unemployment benefits, and
FedEx responded by contending that Ms. Dulaney had voluntarily terminated her
employment and requesting a determination of her eligibility for such benefits by the
Tennessee Department of Labor and Workforce Development (the “Agency”). On February
22, 2011 the Agency’s Division of Employment Security rendered its “Agency Decision” in
which it approved Ms. Dulaney’s claim. The Agency found that Ms. Dulaney was unable to
continue performing her “usual work” and that FedEx had failed to offer her work which she
could physically perform.

       On March 8, 2011, FedEx appealed the Agency Decision to the Agency’s Appeals
Tribunal, again claiming that Ms. Dulaney had voluntarily terminated her employment by
declining to return to her former position after being released to full duty. FedEx requested
a telephone hearing before the Appeals Tribunal.


       4
         This information is taken from the transcript of the April 18, 2011 hearing before the Appeals
Tribunal.
       5
           The Work Release erroneously lists two of the dates as 2010 rather than as 2011.

                                                    -3-
       On April 6, 2011, the Appeals Tribunal sent Ms. Dulaney a “Notice of Telephone
Hearing” scheduled for April 18, 2011. The hearing was held telephonically as scheduled,
with Ms. Dulaney representing herself. On April 19, 2011, the Appeals Tribunal issued its
“Decision of Appeals Tribunal” finding that Ms. Dulaney had failed to return to work as a
ramp agent although she had been medically released to do so, and concluding that she had
not left her employment for good cause and therefore was not entitled to unemployment
benefits under Tennessee Code Annotated section 50-7-303(a)(1).6

        On April 26, 2011, Ms. Dulaney appealed the decision of the Appeals Tribunal to the
Agency’s Commissioner’s Designee,7 and she requested a hearing to present additional
evidence. The Commissioner’s Designee denied Ms. Dulaney’s request for an additional
hearing, finding that “none of the[] documents would affect the outcome of th[e] case,” and
it affirmed the decision of the Appeals Tribunal–that Ms. Dulaney was not eligible for
unemployment benefits because she had failed to “accept her former job when it was offered
to her after being medically released to return to work.”

       Ms. Dulaney filed a Petition for Judicial Review in the Shelby County Chancery Court
on July 19, 2011, claiming a myriad of errors by the Commissioner’s Designee.8 Following


        6
         Tennessee Code Annotated section 50-7-303(a)(1)(A) disqualifies a claimant from receiving
benefits “[i]f the administrator finds that the claimant has left the claimant’s most recent work voluntarily
without good cause connected with the claimant’s work.”
        7
        Ms. Dulaney filed her appeal with the Agency’s Board of Review, which has since been replaced
by the Commissioner’s Designee.
        8
         Ms. Dulaney argued that the decision of the Commissioner’s Designee should be reversed because
it was “in violation of constitutional or statutory provisions, made upon unlawful procedure, arbitrary and
capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, and
unsupported by evidence that is both substantial and material in light of the entire record.” Specifically, Ms.
Dulaney claimed:

        The decisions of the [Commissioner’s Designee] are in violation of constitutional or
        statutory provision and made upon unlawful procedure in that the board made its decisions
        in a fashion that denied petitioner her right to due process of law. Pursuant to Tenn. Code
        Ann. section 50-7-304, the [Commissioner’s Desginee] had the options of deciding the case
        bas[ed] on the evidence previously submitted or directing the taking of additional evidence.
        The [Commissioner’s Designee] did neither. Instead, without directing the taking of
        additional evidence, it relied upon information not in the record in making its decisions. .
        . . it relied upon a letter and attachments mailed to it by Federal Express without providing
        any opportunity for petitioner to confront the statements in those documents, it relied upon
        uncorroborated hearsay, it relied upon what it characterized as the heated tone of a letter
                                                                                                (continued...)

                                                     -4-
a hearing on February 14, 2011,9 the chancery court entered its Order on Judicial Review in
which it reversed the decision of the Commissioner’s Designee based upon its finding that
Ms. Dulaney had been “deprived . . . of adequate due process and the ability to confront and
examine the credibility of the witnesses against her” when she “was denied a face to face in-
person hearing, and instead only participated in a telephone hearing before the . . . Appeals
Tribunal.” Based upon this finding, the chancery court awarded Ms. Dulaney unemployment
compensation benefits.

        The Tennessee Department of Labor and Workforce Development timely appealed
to this Court. Neither Ms. Dulaney nor FedEx filed a brief in this case, and by Order of
March 11, 2013, the matter was submitted for decision upon the record and the Agency’s
brief.


                                            II.   I SSUES P RESENTED

          The Agency presents the following issues for review:

1.        Whether the trial court erred in its determination that Ms. Dulaney was entitled to an
          “in person” hearing; and

2.        Whether there is substantial and material evidence in the record to support the
          Agency’s finding, and a reasonable basis in law to support the Agency’s conclusion
          that Ms. Dulaney voluntarily quit her job without good cause.10

For the following reasons, we reverse the chancery court’s conclusion that the telephonic
hearing violated Ms. Dulaney’s due process rights and we dismiss the case.




          8
           (...continued)
          written to the [Commissioner’s Designee] by petitioner, it improperly and expressly placed
          the burden of proof on the petitioner, it failed to transcribe the Appeals Tribunal hearing and
          review the transcript as required by Tenn. Code Ann. section 50-7-304, it failed to rely upon
          the recorded testimony from the Appeals Tribunal. It failed to allow petitioner the right to
          voice her rights in public.”


          9
              Neither a transcript nor a statement of the evidence from this hearing is included in the record on
appeal.
          10
               Ms. Dulaney did not file an appellate brief.

                                                         -5-
                                          III.    D ISCUSSION

       As stated above, the chancery court reversed the decision of the Commissioner’s
Designee–that Ms. Dulaney was not entitled to unemployment benefits–because it concluded
that her due process rights were violated when the Appeals Tribunal hearing was conducted
telephonically as opposed to face-to-face. The court’s explanation, in its entirety, is as
follows:
               It appears to the Court, and the Court finds, that the Petitioner was
       denied a face to face in-person hearing, and instead only participated in a
       telephone hearing before the Department of Labor & Workforce Development
       Appeals Tribunal. This deprived the Petitioner of adequate due process and
       the ability to confront and examine the credibility of the witnesses against her.

       On appeal, the Agency contends that an in-person hearing is not necessarily required
to avoid due process pitfalls, and we agree. The Tennessee Employment Security Law
“guarantee[s] a claimant the right to a fair hearing after denial of a claim for unemployment
benefits.” Simmons v. Traughber, 791 S.W.2d 21, 24 (Tenn. 1990) (citing Tenn. Code Ann.
§ 50-7-304(c)(1)). However, section 50-7-304(f) specifically permits hearings before the
Appeals Tribunal or the Commissioner’s Designee to be conducted telephonically:

       Notwithstanding § 4-5-312(c)11 or any other provision to the contrary, the
       appeals tribunal and the commissioner’s designee may, for good cause, hold
       all or part of the hearing by telephone conference. In determining good cause,
       the appeals tribunal and commissioner’s designee shall consider the wishes of
       the parties and such factors as the physical security risk to the participants or
       the department’s staff, the travel distance to the hearing location for either or
       both parties, the relative hardship or convenience to the parties, the complexity
       of the issues and any other factor relevant to having a fair hearing.

       Moreover, in a nearly-identical case, this Court rejected a claimant’s argument that
a telephonic hearing violated due process. In Armstrong v. Magill, No. W2003-00207-COA-
R3-CV, 2004 WL 1462631 (Tenn. Ct. App. June 29, 2004), the unemployment benefits
claimant appealed the initial denial of unemployment benefits to the Appeals Tribunal. Id.
at *1. The appeal form contained a box in which the claimant could mark “telephone” or “in


       11
         The Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-312(c) provides:
       In the discretion of the administrative judge or hearing officer and agency members and by
       agreement of the parties, all or part of the hearing may be conducted by telephone, television
       or other electronic means, if each participant in the hearing has an opportunity to participate
       in, to hear, and, if technically feasible, to see the entire proceedings while taking place.

                                                    -6-
person” to indicate her preference for the upcoming appeal hearing. Id. The claimant
checked no box, and she was sent a “Notice of Telephone Hearing” which, beyond notifying
her that a telephone hearing had been scheduled, instructed her that “IF YOU DO NOT
AGREE TO A TELEPHONE HEARING, contact the Appeals Tribunal immediately and be
prepared to appear in person . . . .” Id. Claimant did not contact the Appeals Tribunal prior
to the hearing. Id. During the telephonic hearing, claimant questioned “why the hearing had
to be over the telephone[,]” but she seemed to acquiesce in the procedure and the hearing
proceeded without objection. Id.

        The Appeals Tribunal affirmed the Agency’s decision to deny the claimant
unemployment benefits, and the claimant appealed to the Board of Review without objecting
to the Appeals Tribunal hearing having been conducted by telephone. Id. at *2. Before the
chancery court, the claimant argued that the telephonic hearing violated her due process
rights, but the chancery court disagreed.

       On appeal to this Court, the claimant argued, among other things, that the telephonic
hearing had violated her due process rights. Id. at *5. At the outset, we noted that the
claimant had failed to properly object to the telephonic hearing, but we concluded that even
if she had properly objected, that no due process violations had occurred. Id. at *6.
Specifically, we found that the claimant could have chosen an in-person hearing by checking
the appropriate box on her appeal application or that she could have later-requested an in-
person hearing by contacting the Appeals Tribunal upon receipt of the “Notice of Telephone
Hearing.” Moreover, we noted that the hearing officer was under no duty to reschedule the
hearing when the claimant questioned why the hearing was being conduct via telephone, but
then acquiesced to the procedure. Ultimately, we stated that “[u]nder these circumstances,
we cannot conclude that [the claimant] was unfairly denied the opportunity to have an in-
person hearing.” Id.

       As in Armstrong, in the instant case, Ms. Dulaney received a notice clearly styled
“Notice of Telephone Hearing” informing her of the hearing scheduled before the Appeals
Tribunal. The notice included the telephone numbers of the Agency, Ms. Dulaney, and
FedEx, and it instructed Ms. Dulaney to notify the Appeals Tribunal if her telephone number
was not listed, or if it was incorrect. Additionally, the notice specifically stated, “If your
hearing is scheduled by telephone and you want an in-person hearing, please contact the
Appeals Tribunal immediately.”

        The record before us contains no indication that Ms. Dulaney voiced any objection
to a telephonic hearing prior to the hearing. Moreover, from the transcript of the Appeals
Tribunal hearing, it further appears that she in no way questioned or challenged the hearing
being conducted via telephone during the hearing, itself. Instead, it appears that she did not

                                             -7-
request an in-person hearing until after the Appeals Tribunal rendered its adverse decision.
Under the circumstances of this case, we cannot conclude that Ms. Dulaney was unfairly
denied the opportunity to have an in-person hearing. The judgment of the chancery court is
reversed and the case is dismissed.12


                                         IV.    C ONCLUSION

       For the aforementioned reasons, we reverse the chancery court’s conclusion that the
telephonic hearing violated Ms. Dulaney’s due process rights and we dismiss the case. Costs
of this appeal are taxed to Appellee, Renita Dulaney, for which execution may issue if
necessary.




                                                         _________________________________
                                                         ALAN E. HIGHERS, P.J., W.S.




        12
          We find it unnecessary to address the second issue raised by the Department, for which it simply
seeks an affirmance, and for which Ms. Delaney did not seek appellate relief.

                                                   -8-
