IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON ________________________________________________
LORETTA TRULL,
Petitioner-Appellant, Crockett Chancery No. 6967 Vs. C.A. No. 02A01-9603-CH-00041
MARGARET CULPEPPER, Commissioner of Tennessee Department of Employment Security and KERR PLASTIC PRODUCTS; MANPOWER TEMPORARY SERVICES,
Defendants-Appellees. ___________________________________________________________________________
FROM THE CHANCERY COURT FOR CROCKETT COUNTY THE HONORABLE GEORGE R. ELLIS, JUDGE
Beth S. Bates of Jackson For Appellant
Charles W. Burson, Attorney General and Reporter Robeter W. Stack of Nashville Jennifer H. Small, Deputy Attorney General For Appellee, Culpepper
AFFIRMED Opinion filed:
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
CONCUR:
DAVID R. FARMER, JUDGE HEWITT P. TOMLIN, JR., SENIOR JUDGE This is an unemployment compensation case. Petitioner, Loretta Trull, appeals from the
order of the chancery court dismissing her petition for certiorari and affirming the decision of
the Board of Review that disallowed her claim for unemployment compensation benefits.
Trull was a machine operator for Kerr Plastic Products (Kerr) from April 1994 to March 1995.1 Kerr has an attendance policy where employees accumulate points for each absence or
tardiness incident. An employee is assessed six points for a day of absence, an additional three
points if that employee fails to notify Kerr of the upcoming absence at least one-half hour prior
to the scheduled start of the shift, and two points for any tardiness. An employee who reaches
50 points is automatically terminated.
On March 7, 1995, Trull reached 50 points and, on March 9, 1995, she was terminated
for excessive absences. The points were accumulated over a three month period, from December
1994 through March 7, 1995. Trull’s points mostly resulted from family illnesses over that
period to herself, her daughter, and her mother. According to Beth Wiseman, Human Resources
Manager at Kerr, twenty-seven of the points were from Trull’s illnesses and twenty-three were
for family emergencies. In addition to the illnesses, Trull was tardy one day and was absent one
day because of her daughter’s wedding. On January 24, 1995, Trull received a verbal warning
about her point total. However, she accumulated more points, and on February 21, 1995, she
received a written warning. On March 6 and 7, 1995, Trull was absent because her mother was
in intensive care at the hospital. The only fact in dispute is the time of a phone call made by
Trull on March 6 to notify Kerr that her mother was ill. Kerr claims the call was within one-half
hour of Trull’s scheduled shift which is in violation of its policy and, therefore, they assessed
her an additional three points. Trull claims the call was ten minutes earlier than Kerr claims, and
she should not have been assessed the additional three points. However, the additional points
forced her total over the set level of 50 points, and she was terminated.
Kerr’s policy does not require medical proof of an illness, so Trull did not provide
medical documentation for the illnesses or the emergencies. Basically Kerr’s policy is a no-fault
policy, but the employee can work off the points if he or she works for a period of time without
accumulating more points. In addition, a Kerr employee may request personal time off or a
personal leave of absence to attend to family emergencies or personal illness without
accumulating points. To be effective, the request for a leave of absence must be in writing. Trull
claims that she attempted to request a leave of absence, however, her request was not in writing
and, therefore, was not honored by Kerr.
1 Before joining Kerr as a permanent employee, Trull was assigned to Kerr as a temporary employee through Manpower Temporary Services.
2 Trull filed a claim for unemployment benefits on March 22, 1995. The Tennessee
Department of Employment Security (TDES) denied the claim for unemployment benefits based
on T.C.A. § 50-7-303(a)(2) (Supp. 1996). The TDES decision states: “Claimant was discharged
from most recent employment because of excessive tardiness and/or absenteeism. Evidence
shows that there were warnings prior to discharge. This is considered work-related misconduct.
Claim is denied under TCA 50-7-303.” Trull appealed the denial and a hearing was held on May
11, 1995. On May 16, 1995, the Appeals Tribunal affirmed the TDES decision. The decision
of the Appeals Tribunal states in part pertinent to this appeal as follows:
FINDINGS OF FACT: The appeal was filed timely, and the Appeals Tribunal has jurisdiction. Claimant’s most recent employment prior to filing this claim was with Kerr Plastics Products, from April 8, 1994 until March 9, 1995. She was discharged for excessive absenteeism. Claimant had worked for the employer approximately 13 months and was absent or left early 12 times. Some of the absences were because of family illness and personal illness. None of the personal illnesses were documented by a doctor’s statement. On January 28, 1995, claimant received a verbal warning. On February 24, 1995, she received a written warning about her absenteeism. CONCLUSIONS OF LAW: Although the claimant did have some mitigating circumstances causing her to miss scheduled work, her accumulated absences were what caused her to be discharged and not any single instance of absenteeism. Claimant was unable to substantiate with medical proof a need to be off work. Therefore, the Appeals Tribunal finds that claimant violated the very liberal attendance policy of the employer, and also violated a duty she had to report for scheduled work even after being warned. Therefore, it is found that 12 attendance policy infractions in a 13 month period is misconduct under TCA § 50-7-303 (a)(2). Therefore, taking into consideration the strong agreement [sic] of the claimant’s counsel, the decision of the Agency which denied the claim is affirmed. DECISION: The claimant is not eligible for unemployment benefits under TCA § 50-7-303 (a)(2). The claim is denied as of the date of filing and until the claimant qualifies for benefits in accordance with the Tennessee Employment Security Law.
Trull appealed the Tribunal’s decision to the TDES Board of Review. The Board of Review
adopted the Tribunal’s findings of fact and conclusions of law and affirmed the decision. On
July 21, 1995, Trull filed her petition for certiorari in the Chancery Court of Crockett County,
and the Chancellor subsequently found that the Board of Review’s decision was supported by
the evidence, affirmed its decision, and dismissed the petition. Trull has appealed, and presents
the issues as follows: 1) whether her personal and family illness related absences were “work
related misconduct” within the meaning of T.C.A. § 50-7-303(a)(2); and 2) whether or not
3 misconduct occurred because she was mistakenly assessed three discipline points too many and
thus should not have been terminated pursuant to Kerr’s own policy. The issue we must decide
is whether the Board of Review’s decision that Trull is not entitled to unemployment
compensation benefits is supported by substantial and material evidence.
The standard of judicial review applicable in unemployment compensation benefit cases
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IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON ________________________________________________
LORETTA TRULL,
Petitioner-Appellant, Crockett Chancery No. 6967 Vs. C.A. No. 02A01-9603-CH-00041
MARGARET CULPEPPER, Commissioner of Tennessee Department of Employment Security and KERR PLASTIC PRODUCTS; MANPOWER TEMPORARY SERVICES,
Defendants-Appellees. ___________________________________________________________________________
FROM THE CHANCERY COURT FOR CROCKETT COUNTY THE HONORABLE GEORGE R. ELLIS, JUDGE
Beth S. Bates of Jackson For Appellant
Charles W. Burson, Attorney General and Reporter Robeter W. Stack of Nashville Jennifer H. Small, Deputy Attorney General For Appellee, Culpepper
AFFIRMED Opinion filed:
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
CONCUR:
DAVID R. FARMER, JUDGE HEWITT P. TOMLIN, JR., SENIOR JUDGE This is an unemployment compensation case. Petitioner, Loretta Trull, appeals from the
order of the chancery court dismissing her petition for certiorari and affirming the decision of
the Board of Review that disallowed her claim for unemployment compensation benefits.
Trull was a machine operator for Kerr Plastic Products (Kerr) from April 1994 to March 1995.1 Kerr has an attendance policy where employees accumulate points for each absence or
tardiness incident. An employee is assessed six points for a day of absence, an additional three
points if that employee fails to notify Kerr of the upcoming absence at least one-half hour prior
to the scheduled start of the shift, and two points for any tardiness. An employee who reaches
50 points is automatically terminated.
On March 7, 1995, Trull reached 50 points and, on March 9, 1995, she was terminated
for excessive absences. The points were accumulated over a three month period, from December
1994 through March 7, 1995. Trull’s points mostly resulted from family illnesses over that
period to herself, her daughter, and her mother. According to Beth Wiseman, Human Resources
Manager at Kerr, twenty-seven of the points were from Trull’s illnesses and twenty-three were
for family emergencies. In addition to the illnesses, Trull was tardy one day and was absent one
day because of her daughter’s wedding. On January 24, 1995, Trull received a verbal warning
about her point total. However, she accumulated more points, and on February 21, 1995, she
received a written warning. On March 6 and 7, 1995, Trull was absent because her mother was
in intensive care at the hospital. The only fact in dispute is the time of a phone call made by
Trull on March 6 to notify Kerr that her mother was ill. Kerr claims the call was within one-half
hour of Trull’s scheduled shift which is in violation of its policy and, therefore, they assessed
her an additional three points. Trull claims the call was ten minutes earlier than Kerr claims, and
she should not have been assessed the additional three points. However, the additional points
forced her total over the set level of 50 points, and she was terminated.
Kerr’s policy does not require medical proof of an illness, so Trull did not provide
medical documentation for the illnesses or the emergencies. Basically Kerr’s policy is a no-fault
policy, but the employee can work off the points if he or she works for a period of time without
accumulating more points. In addition, a Kerr employee may request personal time off or a
personal leave of absence to attend to family emergencies or personal illness without
accumulating points. To be effective, the request for a leave of absence must be in writing. Trull
claims that she attempted to request a leave of absence, however, her request was not in writing
and, therefore, was not honored by Kerr.
1 Before joining Kerr as a permanent employee, Trull was assigned to Kerr as a temporary employee through Manpower Temporary Services.
2 Trull filed a claim for unemployment benefits on March 22, 1995. The Tennessee
Department of Employment Security (TDES) denied the claim for unemployment benefits based
on T.C.A. § 50-7-303(a)(2) (Supp. 1996). The TDES decision states: “Claimant was discharged
from most recent employment because of excessive tardiness and/or absenteeism. Evidence
shows that there were warnings prior to discharge. This is considered work-related misconduct.
Claim is denied under TCA 50-7-303.” Trull appealed the denial and a hearing was held on May
11, 1995. On May 16, 1995, the Appeals Tribunal affirmed the TDES decision. The decision
of the Appeals Tribunal states in part pertinent to this appeal as follows:
FINDINGS OF FACT: The appeal was filed timely, and the Appeals Tribunal has jurisdiction. Claimant’s most recent employment prior to filing this claim was with Kerr Plastics Products, from April 8, 1994 until March 9, 1995. She was discharged for excessive absenteeism. Claimant had worked for the employer approximately 13 months and was absent or left early 12 times. Some of the absences were because of family illness and personal illness. None of the personal illnesses were documented by a doctor’s statement. On January 28, 1995, claimant received a verbal warning. On February 24, 1995, she received a written warning about her absenteeism. CONCLUSIONS OF LAW: Although the claimant did have some mitigating circumstances causing her to miss scheduled work, her accumulated absences were what caused her to be discharged and not any single instance of absenteeism. Claimant was unable to substantiate with medical proof a need to be off work. Therefore, the Appeals Tribunal finds that claimant violated the very liberal attendance policy of the employer, and also violated a duty she had to report for scheduled work even after being warned. Therefore, it is found that 12 attendance policy infractions in a 13 month period is misconduct under TCA § 50-7-303 (a)(2). Therefore, taking into consideration the strong agreement [sic] of the claimant’s counsel, the decision of the Agency which denied the claim is affirmed. DECISION: The claimant is not eligible for unemployment benefits under TCA § 50-7-303 (a)(2). The claim is denied as of the date of filing and until the claimant qualifies for benefits in accordance with the Tennessee Employment Security Law.
Trull appealed the Tribunal’s decision to the TDES Board of Review. The Board of Review
adopted the Tribunal’s findings of fact and conclusions of law and affirmed the decision. On
July 21, 1995, Trull filed her petition for certiorari in the Chancery Court of Crockett County,
and the Chancellor subsequently found that the Board of Review’s decision was supported by
the evidence, affirmed its decision, and dismissed the petition. Trull has appealed, and presents
the issues as follows: 1) whether her personal and family illness related absences were “work
related misconduct” within the meaning of T.C.A. § 50-7-303(a)(2); and 2) whether or not
3 misconduct occurred because she was mistakenly assessed three discipline points too many and
thus should not have been terminated pursuant to Kerr’s own policy. The issue we must decide
is whether the Board of Review’s decision that Trull is not entitled to unemployment
compensation benefits is supported by substantial and material evidence.
The standard of judicial review applicable in unemployment compensation benefit cases
where the trial court sits as an appellate court is set forth in T.C.A. § 50-7-304(I)(2) and (3)
(Supp. 1996):
(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:
* * * * * * *
(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 of review shall be reversed, remanded, or modified by the chancellor unless for errors which affect the merits of the final decision of the board.
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. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.
1984) (citations omitted). Courts should not disturb a reasonable decision of an agency which
has expertise, experience and knowledge in a particular field. Id.
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. Traughber, 813 S.W.2d 141, 144
(Tenn. App. 1991). In Sabastian v. Bible, 649 S.W.2d 593, 594-5 (Tenn. App. 1983), we stated:
In order to sustain the Board of Review's application of the provisions of the statute, we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in a judicial proceeding. The reviewing court's function is severely limited. All that is needed to support the commission's interpretation is that it has warrant in the record and a reasonable basis in law.
The Board's ruling disqualifying Trull for benefits was based upon T.C.A. §
4 50-7-303(a)(2) (Supp. 1996) which we quote in pertinent part:
50-7-303. Disqualification for benefits. -- (a) Disqualifying Events. A claimant shall be disqualified for benefits: (2) If the commissioner finds that the claimant has been discharged from such claimant’s most recent work for misconduct connected with such claimant’s work, such disqualification shall be for the duration of the ensuing period of unemployment and until such claimant has secured subsequent employment . . . .”
Trull was terminated by Kerr because repeated absences and tardiness caused her to
accumulate 50 points, the termination level under Kerr’s policy. Trull argues that her absences
for family and personal illness were beyond her control, and therefore, not misconduct. Trull
does not dispute that she was absent, but, instead contends that her absences were not work-
related misconduct.
The unemployment compensation statutes were enacted for the benefit of the
unemployed, and since the disqualification for benefits because of misconduct connected with
work is penal in nature, a liberal construction of the statute in favor of the employee is required.
Weaver v. Wallace, 565 S.W.2d 867, 869-70 (Tenn. 1978); Miotke v. Kelley, 713 S.W.2d 910,
913 (Tenn. App. 1986). The General Assembly did not provide a definition of misconduct
connected with employment. Therefore, misconduct within the meaning of T.C.A. § 50-7-
303(a)(2) must be determined on a case by case basis. Miotke, 713 S.W.2d at 913. The burden
of proving the disqualification for benefits rests on the employer. Id.
Excessive absenteeism may be the basis of a finding of misconduct warranting the denial
of unemployment benefits, but that level of absenteeism must be determined on an ad hoc basis.
Wallace v. Stewart, 559 S.W.2d 647, 648 (Tenn. 1977), Miotke, 713 S.W.2d at 913. In Wallace,
the Supreme Court considered whether absenteeism could be misconduct:
No aspect of contract of employment is more basic than the right of the employer to expect employees will appear for work on the day and at the hour agreed upon. Persistent failure to honor that obligation evinces a substantial disregard for the employer’s interest and may justify a finding of misconduct connected with the employment.
Wallace, 559 S.W.2d at 648.
While unexcused and unjustified absenteeism can be a basis for finding misconduct,
absences due to illnesses and job injuries do not constitute misconduct under the Employment
Security Law. Simmons v. Traughber, 791 S.W.2d 21, 26 (Tenn. 1990). Trull relies on
5 Simmons to establish that her absences were not misconduct. In Simmons, the Supreme Court
remanded the cause to TDES for a new hearing. Id. at 26. However, the Court remanded the
case because the plaintiff was prejudiced by lack of counsel not because some of the plaintiff’s
absences were excused. Id. The Supreme Court stated that “[a] competent attorney, through
efficient cross-examination and introduction of medical records, may have been able to show that
Plaintiff was absent so frequently because of injuries and poor health.” Id.
In the instant case, Trull was properly represented by counsel and presented witnesses
and evidence. However, the agency, the Appeals Tribunal, the Board of Review, and the
chancery court all felt that Kerr had carried its burden of proving that her excessive absenteeism
was misconduct. We believe that substantial and material evidence supports the Board’s
decision that Trull’s pattern of absences and tardiness constituted misconduct related to her
work. Like the Appeals Tribunal and the Board of Review, we believe that she “violated the
very liberal attendance policy of the employer, and also violated a duty she had to report for
scheduled work even after being warned.”
Trull was terminated after she reached Kerr’s policy level of 50 points. Only twenty-
seven of those points were for her own illnesses. We do not believe that an absence to attend to
an adult daughter’s illness or to participate in the daughter’s wedding is excusable. In addition,
Kerr provided a policy that allowed employees to take a personal leave of absence when
confronted with a family crisis like Trull faced when her mother was in intensive care. However,
Trull did not follow Kerr’s policy and did not appear for work. Although the cause of the
absences is unfortunate, Trull’s inability to follow Kerr’s policy resulted in her termination.
These absences are part of a pattern of actions by Trull that show a “substantial disregard for the
employer’s interest.” Wallace, 559 S.W.2d at 648.
From our examination of the entire record, we find substantial and material evidence to
support the decision of the Board of Review that Trull’s absences and tardiness constituted
misconduct related to her work as provided in T.C.A. § 50-7-303(a)(2) (Supp. 1996). The
judgment of the chancery court is affirmed, and the costs of this appeal are assessed against
Trull.
_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
6 CONCUR:
_________________________________ DAVID R. FARMER, JUDGE
_________________________________ HEWITT P. TOMLIN, JR. SENIOR JUDGE