                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 September 21, 2004 Session

                      BECKY ELLIOTT v. JAMES G. NEELEY

                     Appeal from the Chancery Court for Blount County
                     No. CH-03-124   Telford E. Forgety, Jr., Chancellor



               No. E2004-00203-COA-R3-CV - FILED FEBRUARY 22, 2005


This is an unemployment compensation case. The Tennessee Department of Labor and Workforce
Development (“the Department”) denied the claim of Becky Elliott for unemployment benefits,
finding that the plaintiff quit her job without good cause connected to her employment. After
exhausting her administrative remedies to no avail, the plaintiff sued James G. Neeley, the
Commissioner of the Department, seeking judicial review in the trial court, which court affirmed the
Department’s denial of benefits. The plaintiff appeals, essentially arguing that the Department’s
decision is not supported by substantial and material evidence. We affirm.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

Becky Elliott, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Warren A. Jasper, Assistant Attorney
General, for the appellee, James G. Neeley, Commissioner of the Tennessee Department of Labor
and Workforce Development.

                                            OPINION

                                                 I.

         On September 13, 2002, the plaintiff took a job as a dishwasher with the Plaza Restaurant.
Three months later, the plaintiff noticed that some grease had been spilled on the floor in the area
in which she worked. Because of her concern over slipping and aggravating a pre-existing back
injury, the plaintiff brought the grease spill to the attention of her manager and asked that someone
clean up the area. When nothing was done to address her concerns, the plaintiff quit her job.
        On December 20, 2002, the plaintiff filed a claim for unemployment benefits with the
Department. The Department denied the plaintiff’s claim in a letter dated January 6, 2003, finding
that the plaintiff had not “exhausted all reasonable alternatives prior to leaving” and that her
“quitting was not with good cause connected with work under [Tenn. Code Ann. §] 50-7-303.” The
plaintiff appealed this decision to the Department’s Appeals Tribunal, which held a de novo hearing
on February 28, 2003. Both the plaintiff and her former employer testified at the hearing. A few
days later, the Appeals Tribunal issued its decision, in which it affirmed the Department’s finding
that the plaintiff quit her job without good cause connected to work.

        Subsequently, the plaintiff appealed to the Department’s Board of Review, which reviewed
the entire record of the case. The Board of Review affirmed the finding of the Appeals Tribunal and
adopted its decision. On June 19, 2003, the Board of Review denied the plaintiff’s petition to rehear.

       On July 29, 2003, the plaintiff filed a petition for judicial review in the trial court. After
reviewing the record of the administrative proceedings and the briefs of the parties, as well as
hearing oral argument, the trial court affirmed the decision of the Department’s Board of Review,
finding that the record contained “substantial and material evidence to support the decision of the
Board of Review, [and] that the decision is supported by a reasonable basis in law.”

       From this ruling, the plaintiff appeals.

                                                  II.

         Trial courts and appellate courts employ the same standard of review when reviewing
decisions of administrative agencies. Armstrong v. Neel, 725 S.W.2d 953, 955 n.1 (Tenn. Ct. App.
1986). The standard, framed in terms of the trial court’s review and as applicable to the case before
us, is as follows:

               (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




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                (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. . . .

Tenn. Code Ann. § 50-7-304(i)(2)-(3) (Supp. 2004).

         A claimant will be ineligible to receive unemployment benefits “[i]f the administrator finds
that the claimant has left such claimant’s most recent work voluntarily without good cause connected
with such claimant’s work.” Tenn. Code Ann. § 50-7-303(a)(1) (Supp. 2004). It is well-settled that
the issue of whether an employee has voluntarily quit his or her employment without good cause is
a question of law for our determination based upon the facts in the record. Cooper v. Burson, 429
S.W.2d 424, 426 (Tenn. 1968); McPherson v. Stokes, 954 S.W.2d 749, 751 (Tenn. Ct. App. 1997).

                                                  III.

        The plaintiff primarily contends that the Department’s decision to deny her unemployment
benefits is not supported by substantial and material evidence. See Tenn. Code Ann. § 50-7-
304(i)(2)(E). 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.” Clay County Manor, Inc. v. State, 849 S.W.2d 755, 759 (Tenn. 1993)
(quoting S. Ry. Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984)). 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.” Tenn. Code Ann. § 50-7-304(i)(3).

        The plaintiff challenges the Department’s finding that she left work without good cause
connected to her employment. The plaintiff claims that when she reported to work on December 13,
2002, she noticed a “large liquid grease puddle” that had been left on the floor overnight in front of
the dishwasher, which is the area in which the plaintiff worked. The plaintiff alleges that she
reported this “dangerous situation” to her employer, but that the employer did nothing about it. At
that point, the plaintiff took photos of the grease puddle, then spoke again to her employer about
having the area cleaned. When the employer took no action, the plaintiff voluntarily quit her job.
The plaintiff asserts that she had no choice but to quit, as she feared for her safety due to her concern
over falling and potentially aggravating a pre-existing back injury.

      The Board of Review affirmed and adopted the findings of fact and conclusions of law of the
Appeals Tribunal, which had made the following factual findings:



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                Claimant’s most recent employment prior to filing this claim was
                with Plaza Restaurant from September 2002 until December 2002 at
                which time she quit her job because she was dissatisfied with the
                working conditions which she considered unsafe and unsanitary.
                Although employer passed each one of its last two health inspections,
                claimant felt the conditions were unsanitary and after expressing her
                dissatisfaction, she quit her job.

         Our review of the record reveals that substantial and material evidence supports these factual
findings. The plaintiff does not contest the fact that she voluntarily quit her job. While the two
health inspections made just prior to the plaintiff’s quitting revealed that the floors of the restaurant
were dirty and in need of repair, the restaurant nevertheless received passing scores each time. While
not a part of the Appeals Tribunal’s factual findings, the photographs of the grease spill taken by the
plaintiff reveal that four large rubber mats, placed together and forming a large square, were on the
floor in front of the dishwashing area. One of the four mats had been pushed or pulled aside, leaving
a small triangular area of floor in the middle of the four mats. In the middle of this triangular area,
there appears to be some amount of grease on the floor. The mats appear to be separated for the
purpose of facilitating the taking of the photographs.

        Applying these facts to the standard of law set forth in Tenn. Code Ann. § 50-7-303(a)(1),
we cannot say that the plaintiff quit her job with good cause connected to her work. There is simply
no evidence that the area in which the plaintiff would have been working was unsafe. In fact, the
photographs taken by the plaintiff do nothing to help her case. The large rubber mats on the floor
in front of the dishwasher are obviously there as a safety measure to prevent anyone from slipping,
and the fact that a small amount of grease had been spilled in a small area that would ordinarily have
been underneath the mats, had one of the mats not been pushed or pulled askew, should not have
caused a reasonable person to fear for her safety such that she felt compelled to quit her job.
Accordingly, we find that there is substantial and material evidence to support the Department’s
finding that the plaintiff quit her job without good cause connected to her employment.

                                                   IV.

         The plaintiff also raises several procedural issues for our review. First, she argues that the
trial court erred in failing to grant the plaintiff’s motion for default judgment against the Department
and other ostensible defendants, as none of them filed an answer within 30 days of being served with
the plaintiff’s petition, in violation of Tenn. R. Civ. P. 12.01. In addition, the plaintiff finds fault
with the Department’s failure to file the administrative record with the trial court within 30 days.

         The decision to grant or deny a motion for default judgment rests within the sound discretion
of the trial court, see Tenn. R. Civ. P. 55.01 (stating that the trial court may enter default judgment
upon a showing that the opposing party failed to comply with the rules of civil procedure), and we
will not disturb such a decision on appeal absent a showing that the lower court abused its discretion.
“The fact that a decision is discretionary with a trial court necessarily implies that the trial court has


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a choice of alternatives among a range of acceptable ones; the reviewing court’s job is to determine
whether the trial court’s decision is within the range of acceptable alternatives, given the applicable
legal principles and the evidence in the case.” State ex rel. Jones v. Looper, 86 S.W.3d 189, 193-94
(Tenn. Ct. App. 2000) (citation omitted). We cannot say that the trial court abused its discretion in
choosing to deny the plaintiff’s motion for default judgment. Accordingly, we find no reversible
error in this decision.

        In connection with the trial court’s denial of the plaintiff’s motion for default judgment, the
plaintiff contends that the trial court is in violation of judicial canon 2A, which states that a judge
must comply with the law and avoid the appearance of impropriety. See Tenn. Sup. Ct. R. 10. There
is absolutely nothing in the record to support the plaintiff’s contention of a violation of the code of
judicial conduct, and such a contention merits no further discussion.

         Next, the plaintiff asserts that the trial court erred in affirming the decision of the Board of
Review because the Appeals Tribunal refused to reschedule the plaintiff’s hearing after a subpoenaed
witness failed to appear. The record reflects that the officer conducting the hearing allowed the
plaintiff to testify as to what the missing witness would have stated, and the officer even explained
to the plaintiff that he assumed the witness would have supported the plaintiff’s claims. Further, our
review of the record reveals that the missing witness actually refused service of the subpoena.
Therefore, her failure to appear at the hearing was through no fault of the Department. Moreover,
we cannot say that the failure of this witness to appear and testify more probably than not affected
the outcome of the plaintiff’s case. See Tenn. R. App. P. 36(b). Accordingly, any potential error
arising from the failure to reschedule the hearing is harmless.

        Finally, the plaintiff argues that the entire process for determining eligibility for
unemployment benefits is “‘shroud[ed]’ . . . in secrecy” and that the Department consistently relies
upon “some nebulous statute – [Tenn. Code Ann. §] 50-7-303(a)(1)” as authority for the denial of
benefits. As the plaintiff is obviously aware – given the number of times the statute is cited and
relied upon in her briefs to the court – the process for determining whether an employee is eligible
for benefits is clearly set forth in Tenn. Code Ann. § 50-7-301, et seq. The “nebulous” statute
referred to by the plaintiff is in fact the statute which lists the situations in which an employee can
be deemed ineligible for benefits. As we have already held, consistent with every other tribunal that
has reviewed the instant case, the plaintiff left work voluntarily without good cause connected to her
employment, pursuant to Tenn. Code Ann. § 50-7-303(a)(1), thus preventing her from being eligible
to receive unemployment benefits. Therefore, the plaintiff’s final issue is found to be without merit.

                                                   V.

        The judgment of the trial court is affirmed. This case is remanded to the trial court for the
collection of costs assessed below, pursuant to applicable law. Costs on appeal are taxed to the
appellant, Becky Elliott.




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      _______________________________
      CHARLES D. SUSANO, JR., JUDGE




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