                      IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON




MATTIE BEDFORD,                      )
                                     )
       Plaintiff/Appellant,          )      Shelby Equity No. 1048022-1
                                     )
vs.                                  )
                                     )
MARGARET CULPEPPER,                  )      Appeal No. 02A01-9604-CH-00085
Commissioner of the Tennessee        )
Department of Employment Security,   )
and METHODIST HOSPITAL,              )
                                     )
                                          FILED
       Defendants/Appellees          )
                                             June 20, 1997

                                          Cecil Crowson, Jr.
                                          Appellate C ourt Clerk


           APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                          AT MEMPHIS, TENNESSEE



                      THE HONORABLE NEAL SMALL, CHANCELLOR


For the Plaintiff/Appellant:         For the Defendant/Appellee,
                                     Margaret C. Culpepper, Commissioner of The
                                     Tennessee Department of Employment Security:

Florence M. Johnson                  Charles W. Burson
Memphis, Tennessee                   Robert W. Stack
                                     Jennifer H. Small
                                     Nashville, Tennessee


                                     AFFIRMED



                                     HOLLY KIRBY LILLARD, J.



CONCUR:


W. FRANK CRAWFORD, P.J., W.S.


ALAN E. HIGHERS, J.
                                              OPINION

       This is an unemployment benefits case. The Tennessee Department of Employment Security

(“TDES”) denied the application of Appellant Mattie D. Bedford (“Bedford”) for unemployment

benefits on the basis of several instances of employee misconduct and ordered the repayment of

previously paid benefits totaling $1,100. After administrative appeals, the Chancery Court affirmed

the denial of benefits and the repayment order. We affirm the decision of the Chancery Court.

       Bedford worked as a respiratory therapist at Methodist Central Hospital (“Methodist”) in

Memphis, Tennessee, from 1981 until the termination of her employment in March 1994. She was

assigned to Methodist’s hyperbaric oxygen unit. Treatment in the hyperbaric unit involves placing

the patient in a chamber which is then filled with 100% oxygen under high atmospheric pressure.

The potential fire hazard in such an environment is extremely high. The slightest spark could touch

off a fire which would incinerate the patient and very likely destroy part of the hospital.

Consequently, patients entering the hyperbaric chamber must minimize the danger of fire hazard.

To reduce the risk of fire, patients entering the hyperbaric chamber are forbidden to wear makeup,

hair spray, and fingernail polish because some types of these products can be highly flammable in

the oxygen-rich, highly pressurized environment of the hyperbaric chamber.                   Bedford’s

responsibilities included seeing that patients were properly prepared for entry into the chamber for

treatment. Methodist’s written policies regarding the preparation of patients for the hyperbaric

chamber proscribed patients wearing makeup and fingernail polish from the chamber. In addition,

every therapist was required to go through written guidelines with each patient every time treatment

was administered in the hyperbaric unit. The guidelines included the removal of makeup and

fingernail polish.

       Bedford was aware of Methodist’s procedures and was aware of the guidelines requiring the

removal of makeup and fingernail polish. She had had twelve years of experience and had gone

through several training courses related to working with a hyperbaric unit. It was Bedford’s

understanding that water-based makeup posed no threat of fire in the chamber. It was also her

understanding that the vapors from an alcohol swab used to remove fingernail polish could constitute

a bigger hazard than allowing the patient to keep the polish on, especially if the fingernail polish had

not been recently applied. However, Methodist’s procedures flatly required the removal of all

makeup and fingernail polish, with no exceptions.

        On March 16, 1994, Bedford allowed a female patient to enter the hyperbaric chamber
wearing both makeup and fingernail polish. While the patient was in the chamber, the second-shift

supervisor, Laquita Rallings (“Rallings”), entered the room and noticed the patient with makeup and

polish on. Rallings testified that she told Bedford never to let a patient go into the chamber again

wearing makeup and polish. Bedford denied that Rallings told her this. According to Bedford,

Rallings told her that the patient was mad at Rallings for previously warning the patient not to wear

makeup into the chamber, and that Rallings then turned to another therapist and said that they all

should start telling patients the same thing.

       On the same day, Rallings saw Bedford with another patient, Mr. Hill. Mr. Hill was finished

with his therapy and waiting in a wheelchair to be taken back to his room. In Mr. Hill’s presence,

Bedford told an orderly to “push Mr. Hill down the elevator shaft.” Rallings considered this to be

an inappropriate comment but did not want to correct Bedford in front of another therapist who was

present.

       The next day, while Bedford was on duty, Rallings discovered the same female patient as on

the previous day, once again in the hyperbaric chamber wearing makeup and polish. Rallings

confronted Bedford, who responded by telling Rallings that she did not know as much about the

hyperbaric chamber as did Bedford, and that she, Bedford, had been told that some types of makeup

could be worn into the chamber. Rallings told Bedford that her action constituted insubordination

because Bedford disregarded Rallings’ direct order given only the day before.

       Rallings also confronted Bedford with the comment Rallings overheard Bedford make about

pushing a patient, Mr. Hill, “down the elevator shaft.” Bedford said that the comment was a joke

and that Mr. Hill had understood that because she often joked with him. Rallings insisted that the

comment was inappropriate and that it could have been damaging to Methodist had it been overheard

by a passerby. The comment was especially egregious in light of Methodist’s recent efforts to polish

its public image.

       Under Methodist’s disciplinary policies, an employee may be discharged upon the third

disciplinary infraction committed within two years. Prior to the above incidents, Bedford had

committed her third infraction, but had been suspended without pay instead of being discharged.

Her inappropriate comment and her disregard of the requirements for patients entering the hyperbaric




                                                 2
chamber were her fourth and fifth infractions within a two-year period.1 As a result, Rallings

suspended Bedford and asked her to return the next day to speak with the Director, Douglas Stover.

When Bedford returned on the 18th, Stover informed her that her employment was being

terminated.

       The following month, Bedford applied with TDES for unemployment benefits. TDES

initially approved the claim, based on Bedford’s application. Methodist appealed, arguing that

Bedford was ineligible to receive benefits because she had been terminated for misconduct. A

hearing was held, and TDES heard testimony from Bedford, Rallings, and Tommy Mangrum, the

first-shift supervisor. After the hearing, TDES ruled in Methodist’s favor, reversing the award of

benefits and ordering Bedford to pay back $1,100 in benefits already paid out to her. Bedford

appealed, and both the TDES Board of Review and the Chancery Court affirmed the decision in

favor of Methodist. Bedford now appeals to this Court.

       On appeal, Bedford argues that she did not commit misconduct sufficient to disqualify her

from receiving unemployment benefits. Even if this Court affirms her disqualification for benefits,

Bedford contends that the order to repay $1,100 in benefits was arbitrary and capricious and should

be reversed.

       The standard of review to be applied by the chancery court is set out in Tennessee Code

Annotated § 50-7-304, which provides in pertinent part:

               (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.

Tenn. Code Ann. § 50-7-304(I)(2) (Supp. 1996). The statute further provides:

               (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. No decision of the board shall be
       reversed, remanded or modified by the chancellor unless for errors which affect the


       1
        Bedford’s previous infractions, as found by TDES, were for “inappropriate behavior and
excessive unauthorized call time.”

                                                  3
       merits of the final decision of the board.

Id. § 50-7-304(I)(3) (Supp. 1996). The same standards of review used by the chancery court apply

to this Court. Armstrong v. Neel, 725 S.W.2d 953, 955 & n.1 (Tenn. App. 1986). In sum, this Court

reviews “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.” Id. at 955.

       Bedford first argues that the record does not contain substantial and material evidence to

support the finding that she committed misconduct which would warrant a denial of unemployment

benefits. The statute does not define “substantial and material evidence.” However, in Southern

Railway Co. v. State Board of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984), the Tennessee

Supreme Court stated that evidence is substantial and material if it is relevant, if a reasonable mind

would accept it as support for a rational conclusion, and if it provides a reasonably sound basis for

the action being considered. See Ogrodowczyk v. Tennessee Bd. for Licensing Health Care

Facilities, 886 S.W.2d 246, 251 (Tenn. App. 1994). Substantial and material evidence “requires

something less than a preponderance of the evidence but more than a scintilla or glimmer.” Wayne

County v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. App. 1988)

(citation omitted).

       Under Tennessee statutes, an applicant is disqualified for unemployment benefits “[i]f the

commissioner finds that a claimant has been discharged from such claimant’s most recent work for

misconduct connected with such claimant’s work.” Tenn. Code Ann. § 50-7-303(a)(2) (Supp. 1996).

The misconduct must breach a duty which the employee owes to his employer, as opposed to society

in general. Weaver v. Wallace, 565 S.W.2d 867, 870 (Tenn. 1978). In addition, the employee must

be at fault. McClellan v. Bible, 699 S.W.2d 555, 556 (Tenn. 1985). In Armstrong v. Neel, 725

S.W.2d 953 (Tenn. App. 1986), this Court defined misconduct under the statute as:

       conduct evincing such wilful and wanton disregard of an employer’s interests as is
       found in deliberate violations or disregard of standards of behavior which the
       employer has the right to expect of his employee, or in carelessness or negligence of
       such degree or recurrence as to manifest equal culpability, wrongful intent or evil
       design, or to show an intentional and substantial disregard of the employer’s interests
       or of the employee’s duties and obligations to the employer. On the other hand mere
       inefficiency, unsatisfactory conduct, failure in good performance as the result of




                                                    4
       inability or incapacity, inadvertences or ordinary negligence in isolated instances, or
       good faith errors in judgment or discretion are not to be deemed “misconduct” within
       the meaning of the statute.

Id. at 956 (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (1941)).

       In this case, the record contains substantial and material evidence from which TDES could

conclude that Bedford was guilty of misconduct. There is no dispute that Bedford’s actions were

work related. She owed a clear duty to Methodist to follow its rules and procedures regarding the

preparation of patients for the hyperbaric unit. The safety policies were in place to prevent a

catastrophic accident in the chamber. These policies included a clear directive:

       4. All cosmetics, oils, powder, lotions, and deodorant must [be] removed from the
       patient’s body and hair before entering the HBO chamber.

Although Bedford testified that she had never seen this written policy before, she admitted that she

was familiar with the patient guidelines and with a similar rule regarding non-compliant patients.

In addition, Rallings testified that, the day before, she had warned Bedford about the necessity of

removing makeup before placing a patient in the chamber. Clearly, there was sufficient evidence

for TDES to find that Bedford “had a checklist [guidelines] which was used before each treatment,

but she had always allowed patients to enter the HBO unit with minimal makeup and fingernail

polish on, even though the checklist required removal.”

       Bedford explained that she allowed the patient to enter the chamber with makeup and

fingernail polish because it was her understanding that water-based makeup posed no threat and that

it would have been dangerous to remove the fingernail polish because of the vapors emitted from

the alcohol used in removal. Regardless of Bedford’s reasons, she knew the hospital’s policies were

put in place to protect the patient and the hospital, had been specifically told not to permit patients

to wear any makeup, and yet knowingly and intentionally flouted those rules the day after being

warned about them. In affirming TDES’s decision, the Chancery Court stated:

       You know, you get to the point where you are dealing with something that will kill
       people and it can kill people and it has on numerous occasions killed people. You
       don’t second-guess what [safety] position or plan has been laid down. You follow
       it.
                                                ***
                We certainly want to encourage everybody that has the benefit of experience
       and training to make that known but you make that known by going to the proper
       authorities, the authorities that establish policy and try to prevail upon them to
       change the policy. You don’t just ignore the policy because if you do then everybody
       is operating on a different wavelength and all bases are not being covered and things
       -- terrible things can happen.



                                                  5
Bedford’s duty was to follow the procedures set forth in the hospital policies and the patient

guidelines. Her willful refusal to do so constituted misconduct which disqualified her for

unemployment benefits.

       Bedford argues that, even if the denial of benefits is affirmed, she still should not have been

ordered to repay the $1,100 in benefits initially paid to her. The repayment of overpaid benefits by

the recipient is provided for in Tennessee Code Annotated § 50-7-303(d)(1), which states that “[a]ny

person who is overpaid any amounts as benefits under this chapter is liable to repay those amounts,

except as otherwise provided by this subsection (d) or by § 50-7-304(b)(2).” Tenn. Code Ann. §

50-7-303(d)(1) (Supp. 1996). Repayment may be waived by the Commissioner of Employment

Security. Tenn. Code Ann. § 50-7-303(d)(2) (Supp. 1996). Waiver is appropriate only when the

recipient did not commit fraud, misrepresentation, or willful nondisclosure to procure payment, the

overpayment did not occur because of some fault on the part of the recipient, and “the recovery of

the overpayment . . . would be against equity and good conscience.” Id. All three criteria must be

met in order for repayment to be waived. Id. The record in this case contains no evidence to

establish that it would be against equity or good conscience for Bedford to be required to pay back

the benefits initially paid her by TDES. Therefore, requiring repayment of her overpaid benefits is

appropriate.

       The decision of the trial court is affirmed. Costs are assessed against Appellant, for which

execution may issue if necessary.




                                      HOLLY KIRBY LILLARD, J.

CONCUR:


W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




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