                                IN THE COURT OF APPEALS
                                      AT KNOXVILLE

                                                                           FILED
                                                                         December 14, 1999

                                                                         Cecil Crowson, Jr.
                                                                        Appellate Court Clerk



SANDRA E. PERKINS                                )   KNOX COUNTY
                                             )       03A01-9903-CH-00106
       Petitioner-Appellant                      )
                                                 )
                                                 )
       v.                                        )   HON. DARYL R. FANSLER,
                                                 )   CHANCELLOR
                                                 )
COMMISSIONER JAMES DAVENPORT,                    )
TENNESSEE DEPARTMENT OF   )
EMPLOYMENT SECURITY,        )
                                                 )
   Respondent-Appellee                           )
                                                 )
and                                              )
                                                 )
SPORTS BELLE, INC.                               )
                                                 )
       Defendant-Appellee                        )   AFFIRMED AND REMANDED




SAMUEL W. BROWN OF KNOXVILLE FOR PETITIONER-APPELLANT

DOUGLAS EARL DIMOND OF NASHVILLE FOR RESPONDENT-APPELLEE




                                         OPINION



                                                                    Goddard, P.J.


              This is an unemployment compensation case. Sandra E. Perkins filed a Petition

for Certiorari with the Knox County Chancery Court, seeking a judicial review of the decision of

the Commissioner, Tennessee Department of Employment Security, whereby she was denied

unemployment compensation benefits.
                                            I. FACTS

                Sandra Perkins was employed by Sports Belle, Inc., from March 28, 1984 until

April 18, 1997. Her most recent position was as an assistant supervisor of quality control at

Sports Belle. She had held that position for approximately two to three years. Her handwritten

resignation letter stated:


                Please accept my notice of resignation as of 4/19/97. I will work a
                two week notice. My last day will be 4/25/97. I have enjoyed
                working at Sports Belle, but I’m not happy in the position. I do not
                believe I could go back to Insp. Nor do I want to. I have thought
                about this I feel it is best.



                On May 13, 1997, Ms. Perkins filed an initial claim for unemployment benefits. In

her claim, Ms. Perkins stated that she voluntarily quit her employment. The separation notice

which, was filed by the employer stated that Ms. Perkins voluntarily quit with notice. Her

position was stated as being Assistant Quality Control Supervisor. The questionnaire form

completed by Ms. Perkins on May 13, 1997, stated


        1. Did you quit your last job? / YES         NO
        2. On what date did you quit your job? 04/18/97
        3. Give details of the FINAL INCIDENT that caused you to quit.
        I was working a notice effective 04/25/97. He (Jesse Lee) wanted me to stay and
        offered me another job. I was in a position of supervision making 6.50/hr which he
        up graded to 7.50. He kept telling me he would get me help but he didn’t. I had to
        Q.C. inspect 200-300 employees (quality control). I could not do it by myself. They
        said I was an assistant Q.C., but I did not have any help – therefore, I was IT! We
        argued over not having help and he wanted me to stay. I had had enough and left!
        4. What steps did you take to resolve the problems(s) before quitting?
        I tried to do it by myself (4 years), but I could not. I worked early and late w/out
        extra pay. I got pay for the PM over-time but not the AM.


                On May 22, 1997, the Tennessee Department of Employment Security notified

Ms. Perkins that she was ineligible for benefits and disallowed her claim under T.C.A. 50-7-

703(a)(1) finding that Ms. Perkins voluntarily quit her employment without good cause.




                                                 2
               Ms. Perkins appealed the decision to the Appeals Tribunal on May 28, 1997. A

hearing was held on June 26, 1997, which was continued until August 28, 1997. At the hearing

held on June 26th, Ms. Perkins testified. Both Ms. Perkins attorney and the employer’s attorney

had the opportunity to examine Ms. Perkins. Ms. Kathy Brown represented the employer at the

June 26th hearing. Because of time constraints, Ms. Perkins’ attorney did not have the

opportunity to cross-examine Ms. Brown. The employer did not appear at the August 28, 1997,

hearing, pursuant to a settlement agreement between Ms. Perkins and the employer, which had

been reached prior to the August 28th hearing.1 Since Ms. Perkins’ counsel had no opportunity

to cross-examine Ms. Brown during the June 26th hearing, and she did not appear at the August

hearing, the appeals referee stuck Ms. Brown’s testimony.



               On September 4, 1997, the appeals tribunal set aside the Tennessee Department of

Employment Security’s decision and approved Ms. Perkins’ unemployment compensation claim.



               The employer sought an appeal on September 15, 1997, to the Tennessee

Department of Employment Security Board of Review. After reviewing the record, the Board of

Review reversed the decision of the appeals tribunal. The Board of Review made the following

findings of Fact and Conclusions of Law.



       Findings of Fact: The claimant’s most recent employment prior to filing this claim
       was as a quality control supervisor for Sports Belle, Knoxville, Tennessee, from
       March 28, 1984, until April 18, 1997, when she voluntarily quit. She felt that she
       was overworked and not adequately compensated for overtime. In fact, she was paid
       for work performed after regular working hours. In addition, the employer offered
       her other job assignments which she refused. She then quit her employment.

       Conclusions of Law: After carefully considering the entire record in ths case, the
       Board of Review finds that the claimant left her employment voluntarily and without
       good cause connected with work under T.C.A. 50-7-303(a)(1). The claimant was


      1
       The parties are in dispute as to the actual Settlement Agreement. The
Employer states that it understood that Ms. Perkins had withdrawn her claim
for unemployment benefits, as well as any other claims against the Employer
according to the Release of All Claims/Settlement Agreement. Ms. Perkins
claims that the Employer agreed not to contest the receipt of any unemployment
compensation benefits which Ms. Perkins was seeking.

                                                3
       dissatisfied with her work assignment but refused other job assignments from the
       employer which the employer offered after the claimant had expressed her
       dissatisfaction. It appears that the claimant is no longer employed because of her
       own actions and that work was available for her.


                      II. THE HOLDING OF THE CHANCERY COURT


               After receiving the notification that she was not eligible for unemployment

compensation benefits, Ms. Perkins filed a petition of certiorari with the Knox County Chancery

Court averring that the Board of Review engaged in unlawful procedures and acted arbitrarily,

capriciously, and abused its discretion by reversing the decision of the Appeals tribunal even

though no competent testimony against the testimony of the Petitioner was available.

Additionally, she argued that the findings of fact and conclusions of law are not supported by

substantial and material evidence in light of the entire record. She was constructively discharged

from her employment, because she was denied compensation and benefits proportionate to her

responsibilities compared to others who had similar positions.


               The Chancellor held:


              After reviewing the record as a whole the Court is of the opinion that
       exclusive of the testimony of Kathy Brown and exclusive of any material submitted
       on behalf of the employer subsequent to June 16, 1997, the record contained evidence
       which is both substantial and material to support the Board’s Findings of Fact. There
       was nothing in the record before this Court to indicate that the Board of Review
       considered the testimony of Kathy Brown or subsequent documents submitted by the
       employer and therefore this court cannot conclude that the Board followed an
       unlawful procedure in arriving at its decision.


               Further, in view of the fact that there is substantial and material evidence in
       the record to support the Board’s decision it cannot be concluded that the Board acted
       arbitrarily or capriciously in reaching its decision.


               Accordingly, the decision of the Board of Review is affirmed.


                                           III. ISSUES




                                                 4
               Ms. Perkins timely filed a Notice of Appeal seeking to have the decision of the

Chancellor upholding the decision of the Board of Review set aside. She presents the following

issues on appeal.

       I.      The Trial Court erred in holding that the Findings of Fact and Conclusions of Law
               reached by the Appellee were supported by substantial and material evidence in
               light of the record.

      II.      The Trial Court erred in upholding the Appellee’s determination that the
               Appellant was ineligible for unemployment benefits, as the Appellee in reaching
               its Administrative findings and Conclusions of Law engaged in unlawful
               procedure and acted arbitrarily, capriciously, and abused its authority by reversing
               the decision of the Appeals Tribunal, as no testimony was offered to rebut the
               testimony of the Appellant.


                                         IV. DISCUSSION



               Ms. Perkins asserts that the findings of fact and conclusion of law found by the

Board of Review and the Chancellor were in error.



               Judicial review of a decision of the Board of Review in an unemployment

compensation case is had under T.C.A. 50-7-304(i)(2), which provides in pertinent part 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
                        (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. No decision of the board shall be
        reversed, remanded or modified by the chancellor unless for errors which affect the
        merits of the final decision of the board.. . .


                                                   5
               (4) It shall not be necessary in any judicial proceedings under this section to
       enter exceptions to the ruling of the board, but the petition shall distinctly state the
       grounds upon which the action of the board is deemed erroneous. An appeal may be
       taken from the judgment and decree of the chancery court having jurisdiction of these
       controversies to the court of appeals of Tennessee, in the same manner, but not
       inconsistent with the provisions of this chapter, as provided in other civil cases.


               Therefore, the standard of review of a decision of the Board of Review envisions

substantial judicial deference to administrative decisions, and the courts must guard against

substituting their judgment for that of the administrative agency. Cherry v. Suburban Mfg. Co., 745

S.W.2d 273, 277 (Tenn. 1988).



               Moreover, if there is substantial and material evidence to support the decision of the

Board of Review, the decision is conclusive, and the trial court's review shall be confined to

questions of law. Perryman v. Bible, 653 S.W.2d 424, 429 (Tenn. Ct. App. 1983). Additionally, this

Court must apply the same standard as the trial court in reviewing the trial court's decision in an

unemployment compensation case. Metropolitan Government v. Shacklett, 554 S.W.2d 601, 604

(Tenn.1977); Ford v. Traughber, 813 S.W.2d 141, 144 (Tenn. Ct. App. 1991); Armstrong v. Neel,

725 S.W.2d 953, 955 (Tenn. Ct. App. 1986); De Priest v. Puett, 669 S.W.2d 669, 673 (Tenn. Ct.

App. 1984).



               In reviewing the Board of Review’s findings of fact, we are to determine only 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." First Tennessee Bank

National Association v. Jones, 732 S.W.2d 281, 283 (Tenn. Ct. App. 1987)(citing Southern Ry. Co.

V. State Bd. Of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984)).



               The reviewing courts may not second-guess the Board of Review's decisions

concerning the weight of the evidence and should not reverse, remand, or modify the Board of



                                                  6
Review's decision in the absence of some error of law affecting the merits of the Board of Review's

decision. See Tenn. Code Ann. 50-7-304(i)(3) (Supp. 1997); Perryman v. Bible, 653 S.W.2d 424,

429 (Tenn. Ct. App. 1983). 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. Ct. App. 1983).



               We have reviewed the record before us, and disregard the testimony of Ms. Brown

and the letters of the employer subsequent to the June 26th hearing held before the referee. The

record contains substantial and material evidence to support the holdings of both the Board of

Review and the Chancellor, without regard to any of documents and testimony challenged by Ms.

Perkins.



               The testimony of Ms. Perkins before the referee is replete with evidence that Ms.

Perkins left her employment voluntarily and without good cause connected with work under

T.C.A. 50-7-303(a)(1). She was dissatisfied with her work assignment but refused other job

assignments from the employer which the employer offered after the claimant had expressed her

dissatisfaction. Ms. Perkins is no longer employed because of her own actions and work was

available for her. Therefore, she was rightly denied unemployment compensation benefits.



               The second issue raised by Ms. Perkins was that the descision of the Board of

Review was that the Board of Review erred in reaching its Administrative findings and

Conclusions of Law since it engaged in unlawful procedure and acted arbitrarily, capriciously,

and abused its authority by reversing the decision of the Appeals Tribunal, as no testimony was

offered to rebut the testimony of Ms. Perkins. In light of our previous finding of substantial and

material evidence to support the Board of Review’s decision and the Chancellor, we can find no

merit in this issue either. Ms. Perkins’ testimony standing alone, demonstrates that she

voluntarily left her employment in the face of the employer offering her several other positions

with the same rate of pay and benefits as she was presently making. Moreover, even after she



                                                 7
learned that a new Quality Control Supervisor had been hired by the employer, she refused to

return to her most recent position of Assistant Quality Control Supervisor with an increase in pay

and beneits, including an IRA.

               Before concluding, we recognize that the only live testimony that was introduced

was at the Appeals Tribunal, Presided over by Linda Roberts, Appeals Referee, and that she

found the issues in favor of the Claimant. We find nothing in the statute or case law that gives

deference to this circumstance, as is the general rule. Consequently, we reiterate that there is

substantial and material evidence to sustain the ruling of the Board of Review.



                                        V. CONCLUSION



               For the foregoing reasons the judgment of the Chancellor is affirmed and the

cause remanded for collection of costs below. Costs of the appeal are adjudged against Ms.

Perkins and her surety.




                                              _______________________________
                                              Houston M. Goddard, P.J.




CONCUR:



________________________________
Herschel P. Franks, J.



________________________________
D. Michael Swiney, J.




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