Virginia H. Sanders v. Commissioner of Department of Labor and Workforce Development ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 19, 2015
VIRGINIA H. SANDERS v. COMMISSIONER OF DEPARTMENT OF
LABOR AND WORKFORCE DEVELOPMENT, ET AL.
Appeal from the Chancery Court for Shelby County
No. CH1318403 Oscar C. Carr, III, Chancellor
________________________________
No. W2015-00796-COA-R3-CV – Filed September 8, 2015
_________________________________
Appellant employee appeals from the denial of her claim for unemployment compensation.
Because there is substantial and material evidence in the record to establish that the employee
was discharged for work-related misconduct, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
J. STEVEN STAFFORD, P.J. W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and BRANDON O. GIBSON, J., joined.
Virginia H. Sanders, Bartlett, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter; and Jason I. Coleman, Assistant
Attorney General, for the appellees, Commissioner, TN. Dept. of Labor & Workforce
Development.
R. Alex Boals, Memphis, Tennessee, for the appellee, Baptist Memorial Hospital, Inc.
OPINION
Background
Plaintiff/Appellant Virginia H. Sanders was employed by Defendant/Appellee Baptist
Memorial Hospital (―the hospital‖) as a unit coordinator beginning in October 24, 1994. On
Friday, June 14, 2013, an incident occurred that resulted in the termination of Ms. Sanders‘s
employment.
On June 25, 2013, Ms. Sanders filed an initial claim for unemployment benefits. On
August 5, 2013, the Department of Labor and Workforce Development (―Department of
Labor‖) found that Ms. Sanders was discharged for workplace misconduct, disqualifying her
from unemployment benefits. On August 14, 2013, Ms. Sanders filed an appeal to the
Department of Labor‘s Appeals Tribunal.
The hearing officer for the Appeals Tribunal conducted a telephonic hearing on
October 9, 2013. Neither Ms. Sanders nor the hospital was represented by counsel. Instead,
Ms. Sanders appeared on her own behalf, and the hospital‘s Director of Human Resources,
Dennis Fisher, appeared on its behalf. Lulu Lofton, the head nurse on the floor when the
incident took place, testified first. The facts surrounding the incident were largely
undisputed. According to the testimony and other documents in the record, Ms. Lofton asked
Ms. Sanders to ensure that the patient care assistants (―assistants‖) had working pagers. To
accomplish this, Ms. Sanders sent a message through the paging system for the assistants to
―check your lights.‖ Dale Neal, one of the assistants, then approached Ms. Sanders and Ms.
Lofton to indicate that she did not understand the message. Ms. Sanders and Ms. Lofton
attempted to explain the purpose of the page. Thereafter, Ms. Neal walked away from the
nurses‘ station and made a gesture that Ms. Sanders interpreted as an invitation to kiss Ms.
Neal‘s behind. Ms. Sanders replied that she did not have to ―kiss [Ms. Neal‘s] big, fat
behind.‖ Ms. Neal then allegedly returned to the nurses‘ station. According to Ms. Sanders,
Ms. Neal approached in a threatening manner with her fist clenched.1 All witnesses for the
hospital denied that Ms. Neal approached the nurses‘ station in a threatening manner. Ms.
Sanders then rose from her chair, and she and Ms. Neal allegedly continued to argue.
Because voices were raised,2 Ms. Lofton informed Ms. Sanders and Ms. Neal that they could
not have this discussion at the nurses‘ station, but needed to take the issue to a conference
room or outside. Ms. Sanders responded that they should ―take it outside.‖ According to Ms.
Sanders, she merely indicated her intention to continue the verbal disagreement away from
the nurses‘ station. Witnesses for the hospital, however, described Ms. Sanders‘s demeanor
as threatening. Neither party actually engaged in any physical altercation. Nevertheless, it
appears that it was Ms. Sanders who ultimately called security to inform them of the
confrontation.
According to Latonya Green, the nurse manager, after she was informed of the
altercation, 3 both Ms. Sanders and Ms. Neal were sent home for the remainder of the day and
1
According to Ms. Sanders‘s testimony, this was not the first time that Ms. Neal had threatened her.
2
Ms. Sanders testified, however, that ―it was not a loud argument.‖
3
Ms. Green did not witness the altercation.
2
asked to provide written statements regarding what occurred. Ms. Neal provided a statement,
but Ms. Sanders either refused to provide one or delayed in providing a statement.4 Both
employees were placed on investigative suspension, and Ms. Sanders was discharged on
Monday, June 18, 2013. Ms. Green indicated that the decision to terminate Ms. Sanders‘s
employment was because she ―violated our code of conduct and safe and productive
workplace policy by displaying disruptive behavior, due to advancement toward another
employee and inviting the employee to take the confrontation outside, and being the
aggressor in the situation.‖ Ms. Lofton testified that Ms. Sanders was aware of the hospital‘s
threatening behavior policy, as employees are required to review it annually and take an
annual disruptive behavior class. According to Ms. Lofton, ―according to [the hospital‘s]
policy, [threatening] behavior is expressly forbidden conduct, which will not be tolerated,
and can be a ground[] for termination.‖
The Appeals Tribunal issued a written decision reversing the decision of the
Department of Labor. Specifically, the Appeals Tribunal found that:
[Ms. Sanders] was discharged for threatening a co-worker with
violence. The employer‘s policy allows for immediate discharge
of employees who threaten violence. . . .
. . . . Although [Ms. Sanders] was involved in a verbal
altercation with the co-worker, insufficient evidence was
presented to show that [Ms. Sanders] threatened the co-worker
with violence. A willful or wanton violation of a duty [Ms.
Sanders] owed to the employer has not been established. [Ms.
Sanders] was discharged, but misconduct connected with work
has not been shown . . . .
On October 21, 2013, the hospital requested an appeal of the decision by the Appeals
Tribunal. The hospital argued that Ms. Sanders‘s actions constituted workplace misconduct
because she failed ―to observe rules of safety or conduct that an average person would
observe.‖ See Tenn. Code Ann. § 50-7-303(a)(2).
The Commissioner‘s Designee issued a written decision concerning the hospital‘s
appeal on November 1, 2013. Therein, the Commissioner‘s Designee‘s decision specifically
discussed the events that occurred after Ms. Neal first began to walk away from the nurses‘
station, prior to the altercation:
4
Ms. Sanders denied that she failed to provide a written statement or otherwise delayed providing the
written statement. According to Ms. Sanders, she attempted to provide the report when she returned to work on
Monday morning.
3
Apparently the situation was calm at the time and the other
employee turned around and sta[r]ted to walk away. As the
employee was walking way, [Ms. Sanders] noticed a movement
that the employee seemed to pat her bottom as she walked away.
While the other employee did not make any verbal comments,
[Ms. Sanders] interpreted the motion as the other employee
telling [Ms. Sanders] to kiss her behind. As that point [Ms.
Sanders] called out to the employee something to the effect of I
don‘t have to or do you want me to kiss your big fat behind.
After [Ms. Sanders] made that comment, the other employee
turned around and started walking back towards [Ms. Sanders]
who got out of her chair and they started to have a loud
argument during which [Ms. Sanders] told the other employee
let‘s take it outside. The incident happened at the nursing
station.
Based upon these facts, the Commissioner‘s Designee concluded:
The evidence is sufficient to show that during a confrontation
with another employee, [Ms. Sanders] made a comment to that
employee to let‘s take it outside. The difference or disagreement
between the parties was to [Ms. Sanders]‘s intention. The
Employer has argued that such a statement is an implied
invitation to take the argument outside to engage in a physical
fight to settle the matter and, as such, constitutes a physical
threat or invitation to physical violence.
[Ms. Sanders] argued that the argument was taking place
at a public place in the work area and that she was only trying to
defuse the situation and made the statement to the other
employee only in an attempt to take their dispute away from a
public area. The Commissioner‘s Designee agrees that the
statement [Ms. Sanders] made could be open to interpretation,
however, a very common understanding of such a statement is
as an invitation to a fight and [Ms. Sanders] knew or should
have known that was how it could be interpreted. At the very
least, by making such a statement, [Ms. Sanders]‘s action would
have been a good faith error in judgment or discretion.
Misconduct is defined at T.C.A. 50-7-303 (b) (3) and it does
provide in part, that a good faith error in judgment or discretion
is not work connected misconduct.
4
Perhaps if that was the extent of the situation in this case,
that one statement, standing alone would not be work connected
misconduct. However, it was not just that one statement
standing alone. The evidence shows that the incident started
with the other employee asking [Ms. Sanders] a question. The
Commissioner‘s Designee does agree the back and forth
between [Ms. Sanders] and the other employee seems strange
and it is understandable how [Ms. Sanders] may have become
frustrated with the other employee, but the evidence does not
show that the [Ms. Neal] was acting in a threatening or
argumentative way in asking her questions and in fact, actually
turned away from where she had questioned [Ms. Sanders] and
was walking away.
It was Claimant who escalated the incident to a
confrontation by calling after the employee something to the
affect that you want me to or I don‘t have to kiss your big fat
behind. Now [Ms. Sanders] argued she did that only after the
other employee seemed to pat her own behind to which [Ms.
Sanders] assumed was a reference from the other employee to
[Ms. Sanders]. Just as [Ms. Sanders] has argued that her
statement was misinterpreted by the Employer, while the gesture
described by [Ms. Sanders] could certainly be interpreted as
described by [Ms. Sanders], it certainly could have been
misinterpreted by [Ms. Sanders]. Whether or not [Ms. Sanders]
interpreted what the other employee [did] correctly or not, there
was no need for her to call after that employee what she did. The
incident had basically ended and [Ms. Sanders] knew or should
have known saying what she did would have an escalating
effect. Furthermore, by intentionally escalating the incident and
then standing up and arguing with the other employee makes the
Employer‘s interpretation of [Ms. Sanders]‘s statement much
more likely than [Ms. Sanders]‘s interpretation. When the
incident is tak[en] as a whole and not merely as one (1) isolated
statement, the evidence is sufficient to establish inappropriate
work place conduct sufficient to rise to the level of work
connected misconduct within the meaning of T.C.A. 50-7-303
(a) (2). The decision of the Appeals Tribunal that approved this
claim is reversed. The claim is denied as of the date of filing,
5
June 25, 2013, and any benefits paid to [Ms. Sanders] are an
overpayment to be repaid to the Agency.
Ms. Sanders filed a petition to rehear the Commissioner‘s Designee‘s decision, which was
denied on November 13, 2013.
On December 17, 2013, Ms. Sanders, appearing pro se, filed a timely petition for
judicial review of the agency decision. The hospital filed a response in opposition on
February 7, 2014. The Tennessee Department of Labor also filed a response in opposition on
March 3, 2014. The trial court heard oral argument on Ms. Sanders‘s petition on April 6,
2015. The trial court entered a written order denying the petition on May 19, 2015. Therein,
the trial court concluded that:
Based upon the record as a whole, the Court concluded
that the decision of the Designee is supported by substantial and
material evidence. The Court finds that there is evidence to
support the finding that the employee‘s actions constituted
work-related misconduct under T.C.A. 50-7-303. Finally, the
Court holds that the decision of the Designee is neither arbitrary
and capricious nor in excess of the agency‘s statutory authority.
Ms. Sanders filed a timely notice of appeal to this Court.
Issue Presented
Ms. Sanders raises one issue in her brief.5 As we perceive it, Ms. Sanders‘s sole issue
is that there was not substantial and material evidence in the record to support the finding that
5
Ms. Sanders‘s appellate brief is deficient in this case. First, her brief contains no citations to the
record in either the statement of facts or argument sections. Rule 27 of the Tennessee Rules of Appellate
Procedure provides that the brief of the appellant must contain ―[a] statement of facts . . . with appropriate
references to the record; . . . [and] [a]n argument . . . with citations to authorities and appropriate references to
the record.‖ Tenn. R. App. P. 27(a)(6), (7). Ms. Sanders also fails to include any citations to authority in the
argument section of her brief other than a reference to Tennessee Code Annotated Section 50-7-303. This
Court has repeatedly held that the failure to include citations to authorities and appropriate references to the
record may render issues raised in the appellant‘s brief waived. See Bean v. Bean, 40 S.W.3d 52, 55 (Tenn.
Ct. App. 2000) (―Courts have routinely held that the failure to make appropriate references to the record and to
cite relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of
the issue.‖)
We note, however, that Ms. Sanders is proceeding pro se in this appeal, as she did in all prior
proceedings. As this Court explained:
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222,
6
her actions constituted work-related misconduct pursuant to Tennessee Code Annotated
Section 50-7-303.
Standard of Review
Tennessee Code Annotated Section 50-7-304(i) contains the standards by which
chancery courts are to review administrative decisions involving claims for unemployment
compensation. This Court employs the same standard of review applicable to the trial court.
227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank, Inc.,
971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). The courts should take into
account that many pro se litigants have no legal training and little familiarity
with the judicial system. Irvin v. City of Clarksville, 767 S.W.2d 649, 652
(Tenn. Ct. App. 1988). However, the courts must also be mindful of the
boundary between fairness to a pro se litigant and unfairness to the pro se
litigant's adversary. Thus, the courts must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented
parties are expected to observe. Edmundson v. Pratt, 945 S.W.2d 754, 755
(Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n. 4 (Tenn.
Ct. App. 1995).
The courts give pro se litigants who are untrained in the law a
certain amount of leeway in drafting their pleadings and briefs. Whitaker v.
Whirlpool Corp., 32 S.W.3d at 227; Paehler v. Union Planters Nat’l Bank,
Inc., 971 S.W.2d at 397. Accordingly, we measure the papers prepared by
pro se litigants using standards that are less stringent than those applied to
papers prepared by lawyers. Hughes v. Rowe, 449 U.S. 5, 9–10, 101 S. Ct.
173, 176, 66 L. Ed. 2d 163 (1980); Baxter v. Rose, 523 S.W.2d 930, 939
(Tenn. 1975); Winchester v. Little, 996 S.W.2d 818, 824 (Tenn. Ct. App.
1998).
Pro se litigants should not be permitted to shift the burden of the
litigation to the courts or to their adversaries. They are, however, entitled to
at least the same liberality of construction of their pleadings that Tenn. R.
Civ. P. 7, 8.05, and 8.06 provide to other litigants. Irvin v. City of
Clarksville, 767 S.W.2d at 652. Even though the courts cannot create claims
or defenses for pro se litigants where none exist, Rampy v. ICI Acrylics,
Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994), they should give effect to
the substance, rather than the form or terminology, of a pro se litigant‘s
papers. Brown v. City of Manchester, 722 S.W.2d 394, 397 (Tenn. Ct. App.
1986); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977).
Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003). Because the record is not
voluminous and there is only one genuine issue in this case, we will proceed to consider the merits of Ms.
Sanders‘s appeal despite her failure to comply with the rules of this Court. See Tenn. R. App. P. 2 (―For good
cause, including the interest of expediting decision upon any matter, the . . . Court of Appeals . . . may suspend
the requirements or provisions of any of these rules in a particular case . . . .‖).
7
See Armstrong v. Neel, 725 S.W.2d 953, 955 & n.1 (Tenn. Ct. App. 1986). Tennessee Code
Annotated Section 50-7-304(i)(2) provides that:
The [court] may affirm the decision of the commissioner 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 that is both substantial and
material in the light of the entire record.
The issue in this case concerns only whether the agency‘s decision was supported by
substantial and material evidence. Courts ―generally interpret the substantial and material
evidence requirement as requiring ‗something less than a preponderance of the evidence, but
more than a scintilla or glimmer.‘‖ Dickson v. City of Memphis Civil Serv. Comm’n, 194
S.W.3d 457, 464 (Tenn. Ct. App. 2005) (quoting Wayne Cnty. Tenn. Solid Waste Disposal
Control Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988) (citations omitted)). ―Substantial
evidence is not limited to direct evidence but may also include circumstantial evidence or the
inferences reasonably drawn from direct evidence.‖ Wayne Cnty., 756 S.W.2d at 280 (citing
Radio Officers Union v. NLRB, 347 U.S. 17, 49, 74 S. Ct. 323, 340, 98 L. Ed. 455 (1954)).
―An agency‘s factual determination should be upheld if there exists ‗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.‘‖ Wayne Cnty., 756 S.W.2d at 279
(quoting Southern Ry. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.1984)). In
addition, Tennessee Code Annotated Section 50-7-304(i)(3) provides:
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 commissioner‘s designee
as to the weight of the evidence on questions of fact. No
decision of the commissioner‘s designee shall be reversed,
remanded or modified by the chancellor, unless for errors that
8
affect the merits of the final decision of the commissioner‘s
designee.
Discussion
In considering this appeal, we must determine whether substantial and material
evidence supports the agency‘s finding that Ms. Sanders‘s actions constitute work-related
misconduct so as to disqualify her from unemployment compensation. As this Court
explained:
A claimant is disqualified for unemployment benefits if
it is determined that he or she was discharged for ―misconduct
connected with the claimant‘s work.‖ Tenn. Code Ann. § 50-7-
303(a)(2)(A).6 The standard to be applied is that of the
employment contract, whether express or implied, which fixes
the employee‘s duties in connection with his work. Weaver v.
Wallace, 565 S.W.2d 867, 870 (Tenn. 1978). An essential
element of ―misconduct connected with work‖ is a breach of a
duty owed to the employer, as distinguished from society in
general. Id. ―Unless the employee‘s wrongdoing violates a duty
owed to the employer, it cannot amount to that ‗misconduct
connected with his work‘ which serves to disqualify him to
receive unemployment insurance benefits, although it may fully
justify the employer in discharging him.‖ Id.
―It has long been settled in this state [ ] that a justifiable
discharge is not, in and of itself, ‗misconduct connected with his
work‘ so as to disqualify an employee under the statute.‖ Cherry
v. Suburban Mfg. Co., 745 S.W.2d 273, 275 (Tenn. 1988); see
also Trice v. Traughber, 797 S.W.2d 886, 887 (Tenn. 1990).
The circumstances may be such that an employee is deemed
unsuitable for the work that he was doing, but that does not
necessarily constitute grounds for denial of unemployment
benefits. See Mayes v. Culpepper, No. 03A01-9801-CH-00032,
1999 WL 39505, at *2 (Tenn. Ct. App. E.S. Feb. 1, 1999).
6
Tennessee Code Annotated Section 50-7-303 contains other disqualifying events that
prevent a claimant from receiving unemployment compensation, including leaving the claimant‘s
work ―voluntarily without good cause connected with the claimant‘s work[,]‖ or failing to ―apply for
available, suitable work, when so directed by the employment office or the administrator, or to
accept suitable work when offered, or to return to the claimant‘s customary self-employment, if any,
when so directed by the administrator.‖ Tenn. Code Ann. §50-7-303(a)(1), (3).
9
Dura Auto. Sys., Inc. v. Neeley, No. M2009-00908-COA-R3-CV, 2010 WL 204090, at *3
(Tenn. Ct. App. Jan. 21, 2010). Here, the Commissioner‘s Designee found that Ms. Sanders
engaged in work-related misconduct by threatening another employee with violence, an
action that violated the hospital‘s threatening behavior policy.
Although it is difficult to discern from Ms. Sanders‘s appellate brief, it appears that
she disputes that her actions constituted work-related misconduct sufficient to disqualify her
from unemployment compensation. As we perceive it, Ms. Sanders contends that the
Commissioner‘s Designee erred in finding that she was the aggressor in the confrontation or
that she acted in a threatening manner by suggesting that she and Ms. Neal take their dispute
outside. As previously discussed, it is undisputed that at some point in her exchange with Ms.
Neal, Ms. Sanders rose from her chair and indicated that the two should take the dispute
―outside.‖ However, the hospital does not appear to dispute that the first mention of taking
the dispute outside came from Ms. Lofton, who recommended that Ms. Sanders and Ms. Neal
relocate their dispute away from the nurses‘ station. Ms. Sanders argues that she did not
indicate her desire to take the argument outside in a threatening manner, but instead merely
wanted to remove the dispute from the nurses‘ station at Ms. Lofton‘s request. In addition,
Ms. Sanders argues that she was not the aggressor in the situation, as Ms. Neal allegedly
walked toward the nurses‘ station in a threatening manner with her fist clenched.
As an initial matter, we cannot conclude that the Commissioner‘s Designee erred in
finding that Ms. Sanders, rather than Ms. Neal, was the aggressor in the situation. At the
telephonic hearing, Ms. Lofton and Ms. Sanders gave differing versions of the events that
took place. According to Ms. Sanders, Ms. Neal approached in a threatening manner with her
fist clenched. Ms. Lofton testified that she did not witness Ms. Neal clench her fist and that
Ms. Neal did not approach in a threatening manner. The Commissioner‘s Designee clearly
credited Ms. Lofton‘s testimony and found that Ms. Neal did not approach Ms. Sanders in a
threatening manner. Indeed, the Commissioner‘s Designee found that Ms. Neal was leaving
the nurses‘ station when Ms. Sanders escalated the relatively minor dispute by calling back to
Ms. Neal. ―Findings of fact made by the agency may not be reviewed de novo by the trial or
appellate courts, and courts should not substitute their judgment for that of the agency as to
the weight of the evidence on factual issues.‖ Sanifill of Tenn., Inc. v. Tenn. Solid Waste
Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995) (Southern Ry. Co. v. Tenn. Bd. of
Equalization, 682 S.W.2d 196, 199 (Tenn.1984)). This Court is not permitted to reweigh the
evidence or substitute our judgment for that of the administrative agency. Miller v. Tenn. Bd.
of Nursing, 256 S.W.3d 225, 229 (Tenn. Ct. App. 2007). Given the two competing accounts
of whether Ms. Sanders or Ms. Neal was the aggressor, we must conclude that the agency did
not err in adopting Ms. Lofton‘s version of events. Accordingly, there is substantial and
material evidence to support the Commissioner‘s Designee‘s finding that Ms. Neal did not
approach Ms. Sanders in a threatening manner.
10
Ms. Sanders next argues that the agency erred in interpreting Ms. Sanders‘s request to
take the dispute ―outside‖ as an invitation for a physical confrontation. Instead, Ms. Sanders
argues that the only reasonable interpretation of her statement was to remove the argument to
another location. To this end, Ms. Sanders argues that the phrase ―take it outside‖ does not
denote an invitation for physical violence, insisting that the phase means ―to carry out . . . a
food delivery.‖ We respectfully disagree. The Tennessee Court of Criminal Appeals has
previously considered situations where invitations to take a dispute outside resulted in
physical altercations once the disputing parties left the premises. See State v. Smythers, No.
E2001-02806-CCA-R3CD, 2003 WL 21145428, at *4 (Tenn. Crim. App. May 19, 2003)
(involving a statement by one party to a dispute to ―take it outside,‖ at which point, the
disputing parties left the premises and engaged in a physical alteration outside); Holland v.
State, 1993 WL 273968, at *1 (Tenn. Crim. App. July 22, 1993) (involving an invitation to
―take it outside‖ that resulted in a ―scuffle‖). Additionally, this Court has previously
considered the colloquial use of a word or phrase in determining its meaning. See Danelz v.
Gayden, No. W2010-02308-COA-R3JV, 2011 WL 2567742, at *8 (Tenn. Ct. App. June 29,
2011) (noting that the Court of Appeals has previously considered the colloquial sense of a
word); Cooper v. Town of Shelbyville, 57 S.W. 429, 434 (Tenn. Ct. App. 1899) (considering
―the ordinary or colloquial sense‖ of an expression); see also Bryan A. Garner, Garner’s
Dictionary of Legal Usage 174 (3d ed. 2011) (noting that ―[a]lthough there are no certain
guides . . . , the colloquial meaning of the words . . . is itself one of the best tests of purpose‖)
(quoting Brooklyn Nat’l Corp. v. Commissioner, 157 F.2d 450, 451 (2d Cir. 1946)).
Furthermore, this Court ―is not required to check common sense at the courthouse door, and
we decline to do so.‖ Dattel Family Ltd. P’ship v. Wintz, 250 S.W.3d 883, 892 (Tenn. Ct.
App. 2007). Accordingly, we recognize that the colloquial meaning of the phrase ―take it
outside,‖ when uttered in the heat of a dispute, may connote an invitation for a physical
confrontation. Thus, we cannot conclude that the Commissioner‘s Designee erred in finding
that Ms. Sanders‘ statement, coupled with the surrounding circumstances, constituted a threat
prohibited by the hospital‘s threatening behavior policy.
Finally, we address Ms. Sanders‘s contention that regardless of what transpired during
the dispute, her actions were simply insufficient to constitute workplace misconduct.
Although not cited by any of the parties for this purpose, we note that the facts at issue in this
case are highly analogous to the situation presented in Armstrong v. Neel, 725 S.W.2d 953
(Tenn. Ct. App. 1986). In Armstrong, the plaintiff employee was discharged for allegedly
threatening a co-worker. According to the Opinion, the plaintiff‘s co-worker shouted at the
plaintiff to ―shut your [expletive] mouth and I mean now.‖ The plaintiff took offense and
confronted the co-worker, telling the co-worker that he ―would whip his ass if he talked [to]
11
me that way again.‖ No physical altercation ever occurred, but the plaintiff‘s employment
was eventually terminated for threatening a fellow employee. Id. at 954.
The plaintiff filed a claim for unemployment benefits, which was ultimately denied on
the basis that the plaintiff was discharged for work-related misconduct. Id. The plaintiff
appealed, and the Court of Appeals reversed, holding that the plaintiff‘s conduct was
insufficient to establish work-related misconduct. Id. at 957. The Court of Appeals first
adopted the following definition for work-related misconduct:
[C]onduct evincing such wil[l]ful 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.
Id. at 956 (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941)).
The Court concluded that applying the above standard to the plaintiff‘s conduct
did not establish work-related misconduct. According to the Court:
We do not condone the conduct of either [the plaintiff] or
[the co-worker]. However, we do not believe that [the
plaintiff‘s] conduct materially interfered with his employer‘s
business. While it may have provided the company with an
adequate basis to discharge him, we have concluded that this
was an isolated incident that does not warrant denying [the
plaintiff] unemployment compensation pursuant to Tenn. Code
Ann. § 50-7-303(a)(2)(B).
[The plaintiff] did not precipitate this incident. It was
initiated by [the co-worker‘s] demeaning comments made in
front of [the plaintiff‘s fellow] co-workers. [The plaintiff‘s]
comments were directed toward a co-worker, not a supervisor,
in a work environment where less than decorous language could
12
be expected. His threats were clearly made in the heat of the
moment and were conditional in nature. The incident was brief
and did not disrupt the work at the plant. While there was a
company rule that ―fighting, threatening, or abusing employees‖
could be grounds for termination, [the plaintiff] had never been
warned by his superiors that this type of conduct would result in
his immediate discharge.
The Board of Review itself has determined that similar
conduct did not warrant denial of unemployment compensation.
The Board determined that an employee who was fired after
threatening to ―whip‖ a co-worker was not disqualified pursuant
to Tenn. Code Ann. § 50-7-303(a)(2)(B) when it was shown that
the co-worker brought on the altercation. See Board of Review,
Dec. No. 40–BR–15 (3/9 UCIS Ben.Ser., 4383—Tenn.R), 1C
Uempl.Ins.Rep. (CCH) ¶ 1970.654.
Likewise, courts of other jurisdictions, adopting the de
minimis rationale, have found that a provoked employee‘s
conditional threats or other conduct which did not materially
interfere with the work did not provide a basis to deny
unemployment compensation benefits. Davis v. Florida
Unemployment Appeals Commission, 472 So. 2d 800, 802 (Fla.
Dist. Ct. App. 1985); Budding v. Iowa Department of Job
Service, 337 N.W.2d 219, 222–23 (Iowa Ct. App. 1983);[7]
Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 145
(Minn. 1984); Oman v. Daig Corp., 375 N.W.2d 533, 538
(Minn. App. 1985); 8 First Family Federal Savings and Loan
Assoc. v. Unemployment Compensation Board of Review, 68
Pa.Commw. 578, 449 A.2d 870, 872–73 (1982); and Nehi
7
Budding was expressly overruled in Myers v. Employment Appeal Bd., 462 N.W.2d 734,
738 (Iowa Ct. App. 1990), which held that it was improper for a court to overturn an agency‘s factual
finding regarding whether vulgar language constitutes misconduct. Regardless of the present
precedential value of Budding, Armstrong remains good law in Tennessee.
8
The holdings in Windsperger and Oman that an ―isolated hotheaded incident‖ was
insufficient to constitute work-related misconduct in the absence of evidence that the tantrum
adversely affected her employer‘s business, was superseded by statute, as recognized in Potter v. N.
Empire Pizza, Inc., 805 N.W.2d 872 (Minn. Ct. App. 2011). Id. at 875–76 (citing Minn. Stat. §
268.095, subd. 6 (indicating that the fact that the employee‘s conduct was ―only a single incident . . .
is an important fact that must be considered‖)). Accordingly, pursuant to current Minnesota law, the
fact that the alleged misconduct involved only a single incident does not prevent an agency from
determining that it constituted work-related misconduct, but instead is an important consideration.
13
Bottling Co. v. Unemployment Compensation Board of
Review, 27 Pa.Commw. 251, 366 A.2d 594, 596 (1976).
Armstrong, 725 S.W.2d at 957.
Although Armstrong is highly analogous to the facts in the case-at-bar, we cannot
conclude that it supports reversal of the Commissioner‘s Designee‘s decision that Ms.
Sanders‘s actions constituted work-related misconduct. An important factor in the Armstrong
decision and many of the decisions that it cites, is that the employee had adequate
provocation for his or her threat of violence. See Armstrong, 725 S.W.2dat 954 (involving a
threat of violence only after a co-worker, using vulgar language, shouted at the employee to
be quiet); see also Davis, 472 So. 2d at 802 (involving a threat of violence made by an
employee after a co-worker physically assaulted the plaintiff); First Family, 449 A.2d 870,
871 (involving an incident wherein a supervisor slapped the employee‘s hand and the
employee responded that ―if she touched him again, he would reciprocate‖); Nehi Bottling,
366 A.2d at 596 (involving a threat of violence by the employee only after a fellow co-
worker ―abusive[ly] and profane[ly]‖ discharged the employee without authority, after the
employee was injured in a work-place accident). Here, as previously discussed, the
Commissioner‘s Designee found that Ms. Neal was not ―acting in a threatening or
argumentative way‖ in the exchange, and in fact, had walked away from the dispute prior to
Ms. Sanders‘s escalation. Because we have affirmed the Commissioner‘s Designee‘s finding
that Ms. Neal was not the aggressor in the situation, we cannot conclude that Ms. Sanders
had adequate provocation to escalate the incident to a threat of violence.
Moreover, the Court in Armstrong specifically relied upon the fact that: ―While there
was a company rule that ‗fighting, threatening, or abusing employees‘ could be grounds for
termination, [the plaintiff] had never been warned by his superiors that this type of conduct
would result in his immediate discharge.‖ Armstrong, 725 S.W.2d at 957. The same is not
true in this case. Ms. Lofton testified at the telephonic hearing that the hospital‘s employee
code of conduct, statement of performance, and handbook all indicate that threatening
behavior violated hospital policy. Ms. Lofton also testified that employees are aware that a
violation of the hospital‘s threatening behavior policy ―can be a ground[] for termination.‖
Nothing in the record or in Ms. Sanders‘s brief can be fairly read to dispute Ms. Lofton‘s
testimony that Ms. Sanders was aware that threatening behavior alone could be a ground for
termination. As previously discussed, work-related misconduct includes the ―disregard of
standards of behavior which the employer has the right to expect of his employee.‖ Id. at
956. Because there is no dispute that Ms. Sanders knew of the hospital‘s threatening behavior
policy, we must conclude that Ms. Sanders‘s failure to abide by this policy constitutes
substantial and material evidence to support the Commissioner‘s Designee‘s finding that Ms.
Sanders committed work-related misconduct.
14
Conclusion
The judgment of the Chancery Court of Shelby County is affirmed, and this cause is
remanded to the trial court for all further proceedings as may be necessary and are consistent
with this Opinion. Costs of this appeal are taxed to Appellant Virginia H. Sanders. Because
Ms. Sanders is proceeding in forma pauperis in this appeal, execution for costs may issue if
necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
15