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

DONALD D’AMICO,                                     FROM THE HENDERSON
                                                    COUNTY CHANCERY COURT
       Petitioner-Appellant,                 No. 10980, THE HONORABLE
                                                    JOE C. MORRIS, CHANCELLOR
Vs.                                                 C.A. No. 02A01-9705-CH-00097
                                                    AFFIRMED
JAMES DAVENPORT,
COMMISSIONER, Tennessee                              Connie Westbrook of Memphis
Department of Employment                             For Appellant
Security, and JOHNSON
CONTROLS, INC.,                               John Knox Walkup, Attorney General

                          FILED
       Respondents-Appellees
                                                    And Reporter; Douglas Earl Dimond,
                                                    Assistant Attorney General
                                                    For James Davenport
                           October 31, 1997
                                            Paul E. Prather, Steven W. Likens;
                                            Kiesewetter Wise Kaplan Schwimmer
                     Cecil Crowson, Jr.
                     Appellate C ourt Clerk
                                            & Prather, PLC of Memphis For
                                            Johnson Controls, Inc.
____________________________________________________________________________

                         MEMORANDUM OPINION1
___________________________________________________________________________

CRAWFORD, J.

       This appeal involves the denial of unemployment compensation benefits. Mr. Donald

D’Amico appeals the decree of the chancery court affirming the denial of benefits by the Board

of Review of the Tennessee Department of Employment Security (TDES).

       Donald D’Amico was an employee of Johnson Controls, Inc. (JCI) from May 1993 to

June 1996. Mr. D’Amico is partially disabled as the result of polio suffered as a child. By

numerous verbal requests and by letter of April 28, 1995, Mr. D’Amico requested that JCI make

certain modifications to his work station in order to accommodate his disability. Mr. D’Amico’s

requests apparently went unanswered because in October 1995 he filed a charge of

discrimination with the Tennessee Human Rights Commission and the Equal Employment

Opportunity Commission (EEOC). Mr. D’Amico alleges that as a result of requesting work-

place accommodations for his disability he has been subject to harassment and retaliation by JCI

management. Mr. D’Amico asserts that this harassment resulted in his missing two weeks of


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         Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The 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 a subsequent unrelated case.
work for “medical and psychological intervention.”

       Upon return to work on July 12, 1996, Mr. D’Amico was called into the office of the

personnel manager, Danny Azbill, and was asked to fill out an employment application which

was absent from his file and to provide a doctor’s note explaining his absence. The employment

application is used to provide emergency contacts, references, etc., as well as information to be

used for advancement purposes. Mr. D’Amico stated that when called in to Mr. Azbill’s office

he expected to be fired on the spot. He refused to fill out the employment application. When

asked if he understood the consequences of refusing a reasonable request of management, Mr.

D’Amico allegedly asked to be terminated that day and be allowed to clean out his locker. Mr.

Azbill suspended Mr. D’Amico that day and told him to report back to work the next day for the

final decision of management. Mr. D’Amico never returned to work. He received a letter dated

June 18, 1996 notifying him that his employment with JCI had been terminated effective June

13, 1996.

       Mr. D’Amico filed another charge of discrimination with the EEOC on June 18, 1996

alleging retaliatory discharge, and filed for unemployment compensation benefits on June 20.

His claim for unemployment benefits was denied. This decision was appealed, and after a

hearing before the Appeals Tribunal, the Tribunal affirmed the denial of benefits and made the

following findings of fact and conclusions of law:

               FINDINGS OF FACT: Claimant’s most recent employment prior
               to filing this claim was with Johnson Controls, Inc., from May 9,
               1993, until June 12, 1996, when he was discharged. Claimant
               had worked for this employer through a temporary agency for
               three months before being hired by the employer on a permanent
               basis on May 9, 1993. The employer does have a formal written
               application that is to be filled out by potential employees and is
               retained in the personnel file of those who are hired. There was
               a dispute between the parties as to whether or not claimant had
               originally completed and returned the application, but the
               evidence is clear that claimant’s personnel file did not contain a
               completed application. On June 12, 1996, claimant was asked to
               complete such an application. It is three pages long and the
               experience of the employer is that it takes thirty minutes to
               complete. Claimant had earlier conflicts with the employer and
               had even filed a pending E.E.O.C. suit against them under the
               Americans with Disabilities Act. He was upset with the employer
               and refused to complete the application even after several
               requests. Instead of discharging claimant immediately, he was
               suspended and asked to come back the next day. Claimant
               decided that he was not going to fill out the application, so he did
               not return the next day and was mailed a letter of termination.



                                                2
               CONCLUSIONS OF LAW: An employee owes a duty to the
               employer to comply with reasonable requests, and failure to do so
               may be work connected misconduct within the meaning of TCA
               § 50-7-303(a)(2). It is not unreasonable for an employer to ask an
               employee to complete an application to replace one that is
               missing for whatever reason. The evidence will not support a
               finding that the employer was making the request either as a form
               of harassment of claimant because of the E.E.O.C. suit or to
               obtain information to use against him in that suit. Claimant has
               shown no reasonable [sic] request from the employer. The
               appeals Tribunal finds that his discharge was for work
               connected misconduct within the meaning of TCA § 50-7-
               303(a)(2). The agency decision denying this claim is affirmed.
               (emphasis added)

The Board of Review affirmed the decision of the Appeals Tribunal and denied Mr. D’Amico’s

subsequent request for a rehearing. The chancery court granted certiorari and, after a hearing,

affirmed the denial of benefits. This appeal followed.

       Mr. D’Amico appeals the judgment of the chancery court and presents two issues for

review: (1) Whether there is substantial and material evidence to support the finding of the Board

of Review that Mr. D’Amico’s refusal to follow management instructions was misconduct

sufficient to warrant termination; and (2) Whether this misconduct properly disqualifies Mr.

D’Amico from receiving benefits as a matter of law.

       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:

               (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. 1997). 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.


                                                3
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 “commissioner finds that a claimant has been discharged from such claimant’s most recent

work for misconduct connected with such claimant’s work.” T.C.A. § 50-7-303(a)(2) (Supp.

1997). The phrase “misconduct connected with such claimant’s work” is not defined by the

statute, but must be interpreted by the courts on a case by case basis. Wallace v. Stewart, 559

S.W.2d 647, 648 (Tenn. 1977); Armstrong v. Neel, 725 S.W.2d 953, 955 (Tenn. App. 1986).

In Armstrong v. Neel this Court adopted the following standard regulating the determination of

misconduct:

               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 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. Boynton Cab Co. v. Neubeck,
               237 Wis. 249, 296 N.W. 636, 640 (1941).

Armstrong, 725 S.W.2d at 956. The Tennessee Supreme Court has held that the burden of

proving disqualification for benefits is on the employer and that “in order to establish a

disqualification there must be shown a material breach of some duty which the employee owes

to the employer.” Cherry v. Suburban Mfg. Co., 745 S.W.2d 273, 275 (Tenn. 1988). If no duty

owed to the employer is violated, the actions of the employee, even if sufficient to warrant

termination, do not amount to misconduct connected with such claimant’s work within the



                                                4
meaning of the statute. Id.; Weaver v. Wallace, 565 S.W.2d 867, 870 (Tenn. 1978).

       At the Appeals Tribunal hearing, Mr. D’Amico was questioned by the Appeals Referee

about why he was suspended:

               Q: Okay. So - so, Mr. Azbill asked you to fill out the application?
               A: Yes, sir.
               Q: What was your response when he asked you to fill out the
               application?
               A: I said no.
               Q: And for what reason?
               A: I didn’t give him any reason. I said no.

                               *               *               *

               A: . . . I don’t know whether Danny [Azbill] remembers it but
               it’s coming of Danny and he says, “Do I understand that you’re
               refusing a direct order from management?” I said, yes. And
               that’s the God’s honest truth. And then he says, “Well, I’m
               suspending you.” That’s the way I seem to remember that it
               went. And I said, well, you might as well give me - whatever
               juncture I put this in, you - you might as well give me my
               termination papers now. . . . He then said, “Well, you’re
               suspended pending a decision of management.” I walked through
               the double doors, I made a right hand turn, I went to my locker to
               get some stuff out of my locker. Okay? Because I knew the way
               it was going to turn out. I was pre-disposed already, if you know
               what I’m saying, Mr. Rogers, and that’s basically what came
               down.

       After careful review of the record, we hold that there is substantial and material evidence

to support the finding that Mr. D’Amico was terminated for work related misconduct in that he

refused a reasonable request of management to fill out a form required of all employees and that

he failed to report back to work after the one day suspension. It is obvious that there are ill

feelings between Mr. D’Amico and members of JCI management, but there is no evidence that

JCI was making an exceptional request in order to harass Mr. D’Amico. If Mr. D’Amico had

returned to work the next day, his assertion that the refusal to fill out the application (standing

alone) was a good faith error in judgment may have been plausible. However, the evidence

shows that Mr. D’Amico deliberately disregarded a reasonable request of management and then

failed to return to work at all. We hold that the decision of the Board of Review, adopting the

findings of fact and conclusions of law of the Appeals tribunal was not arbitrary or capricious,

but is supported by substantial and material evidence.

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

affirmed. Costs are assessed against the appellant.



                                                5
                                           _________________________________
                                           W. FRANK CRAWFORD,
                                           PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE


____________________________________
DAVID R. FARMER, JUDGE




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