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Newman v. Davis

Court of Appeals of Tennessee, Jackson

February 7, 2014

CLEMENTINE NEWMAN
v.
KARLA DAVIS, COMMISSIONER OF TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and MEMPHIS LIGHT, GAS, AND WATER

Session January 21, 2014

Direct Appeal from the Chancery Court for Shelby County No. CH1115772 Arnold B. Goldin, Chancellor

Clementine Newman, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Derek C. Jumper, Assistant Attorney General, for appellee, Tennessee Department of Labor and Workforce Development.

Imad I. Abdullah, Memphis, Tennessee, for the appellee, Memphis Light, Gas, and Water.

J. Steven Stafford, J., delivered the opinion of the Court, in which David R. Farmer, J., and Holly M. Kirby, J.

OPINION

J. STEVEN STAFFORD, JUDGE

The relevant facts in this case are undisputed. On October 29, 1979, Appellant Clementine Newman was hired as an Accountant-in-Training by Memphis Light, Gas, and Water ("MLGW"). In 1982, Ms. Newman was promoted to the position of Rate Analyst, a position she held until her employment was terminated on August 1, 2006.

On August 29, 2005, Ms. Newman called MLGW to report that she had been involved in a non-work-related vehicle accident, and that she would not be reporting to work. On September 5, 2005, Ms. Newman completed MLGW's five-day absent form. On September 12, 2005, she returned to work. It appears from the record that Ms. Newman was not allowed to resume her job at that time because she failed to provide MLGW with a physician's statement, verifying her absence and clearing her to return to work. MLGW informed Ms. Newman that she needed to provide a doctor's statement in order to be cleared by the company nurse to return to work. MLGW did provide Ms. Newman with forms for her doctor to complete. However, Ms. Newman did not respond; on December 7, 2005, Ms. Newman's supervisor, Marty Bond, contacted her to check her progress. At that time, Ms. Newman informed Mr. Bond that she was unable to attend her scheduled physical therapy, but that she was expecting to be released soon to do so. On January 4, 2006, Ms. Newman called MLGW to report that she was still not able to attend physical therapy. Except for her appearance on September 5, 2005, Ms. Newman continued to be absent from work.

When Ms. Newman had still not returned to work on March 15, 2006, Mr. Bond called Ms. Newman to check on the status of her absence from work. The next day, Mr. Bond checked with MLGW's Insurance Department concerning any information that Ms. Newman may have supplied to substantiate her absence. Ms. Margaret Harrison, MLGW's Managed Care Coordinator, informed Mr. Bond that Ms. Newman had failed to provide any recent information regarding her absence. As a result, MLGW's Insurance Department sent Family and Medical Leave Act ("FMLA") forms and Certificate of Health Care Provider forms to Ms. Newman and her treating physician for completion. On March 17, 2006, Ms. Newman left a message for her supervisor, stating that she called, but she failed to leave any information concerning the status of her absence from work. Consequently, on March 20, 2006, MLGW mailed Ms. Newman a letter instructing her to contact the office weekly to provide an update of her work status. With the letter, MLGW enclosed additional copies of the FMLA and Certificate of Health Care Provider forms.

Ms. Newman did not immediately complete the forms that MLGW sent to her, and she continued to be absent from work. Rather, on March 24, 2006, Ms. Newman left a phone message for Mr. Bond, stating that she was still sick and requesting copies of all of MLGW's sick leave policies. MLGW sent the requested policies to Ms. Newman on March 29, 2006. Ms. Newman did not report to work, nor did she contact MLGW as instructed during the week of March 29, 2006. The following week, on or about April 4, 2006, Ms. Newman sent MLGW a partially completed Absence/FMLA form, which allegedly did not contain the required health care provider certification. However, in the record, we find an April 20, 2006

Certification of Health Care Provider form, which was completed by Ms. Newman's treating physician, Dr. Raymond Gardocki. The April 10, 2006 certification indicates that Ms. Newman's condition is a "chronic condition requiring treatments." Despite this prognosis, Dr. Gardocki indicates that Ms. Newman is cleared to return to work on September 21, 2005. Regardless, on or about June 23, 2006, Dr. Gardocki completed a second Certificate of Health Care provider form. As discussed in more detail below, the June 23, 2006 certificate corrected the April 10, 2006 form, which was marked in the record as "Error [/S/ Dr. Gardocki's initials] 6/23/06."

On April 10, 2006, Ms. Newman called and requested additional forms and asked questions regarding completion of some of the forms. Three days later, on April 13, 2006, Ms. Newman called MLGW, but did not leave any information regarding her work status. On April 21, 2006, Ms. Newman called to say that she was still not attending physical therapy, but she did not return to work or offer to do so. At this time, Mr. Bond reiterated the importance of returning the physician's form, and Ms. Newman stated that the physician may have lost it, but that she would call to check on it. On April 28, 2006, Ms. Newman called MLGW to say that she would not be in to work the following week. On May 5, 2006, Ms. Newman left a message, stating that she would call back later; on May 12, 2006, Ms. Newman called MLGW to inform her supervisor that she would be out the following week.

On May 16, 2006, MLGW sent a letter to Ms. Newman instructing her to contact the Human Resources Services Office by May 25, 2006 to provide proper documentation of her absence from work. In the letter, MLGW reminded Ms. Newman of its Sick Leave and Salary Continuation Policy (Personnel Policy 22-12), which requires employees to provide a physician's statement on the fifth day of absence and each twentieth day thereafter. The letter warned that "failure to provide the required information will be considered job abandonment and will result in termination." In response to this letter, Ms. Newman called MLGW on May 19th and 26th, and on June 2nd, 9th, 18th, and 26th, stating that she would continue to be out on sick leave. Also, on June 26, 2006, Ms. Newman called and stated that she would be seeing her physician on June 29, 2006. On June 30, 2006, Ms. Newman called to say that she was scheduled for additional testing on July 7th and 21st, and that she would continue to be out on sick leave pending the results.

On June 23, 2006, MLGW received a second Certification of Health Care Provider form from Dr. Gardocki. The June 2006 certification corrected the April 2006 certification, which is discussed in greater detail above. While the April 2006 certification stated that Ms. Newman's condition was a "chronic condition requiring treatment, " the June 2006 certification indicated that her condition was not chronic, and did not require treatment. The June 2006 certification excuses Ms. Newman from work only on those days that she was seen in Dr. Gardocki's office, i.e., September 8th and 20th, 2005, November 7, 2005, December 1, 2005, January 3, 2006, February 22, 2006, and June 7, 2006. Other than these dates, the certification indicates that Ms. Newman was cleared to work by Dr. Gardocki. The record indicates that in addition to Dr. Gardocki, Ms. Newman also sought treatment from several other physicians. Each of these doctors either released Ms. Newman from work on the days that she was seeing them, or did not release her from work at all. One of these doctors, Dr. Vasu, released Ms. Newman to return to work on December 13, 2005.

On July 17, 2006, MLGW held a meeting to discuss Ms. Newman's absence from work. MLGW subsequently decided to terminate Ms. Newman's employment effective August 1, 2006. MLGW sent Ms. Newman a letter on August 1, 2006, informing her that her employment had been terminated due to her failure to provide the necessary medical documentation to substantiate her extensive absence from work. Specifically, the letter explained that the medical documentation received from Ms. Newman's treating physician indicated that she had been released to work in September of 2005 and that her illness did not qualify as a "serious health condition, " which made her ineligible for coverage under the FMLA:

[T]he medical documentation you provided indicated that you were released to return to work in late September of 2005. Furthermore, your treating physician indicated that your illness did not qualify as a "serious health condition" therefore you were not eligible for coverage under the FMLA. The information you have provided failed to cover your extensive time away from work.

On September 29, 2006, Ms. Newman filed a claim for unemployment benefits with Karla Davis, the Commissioner of the Tennessee Department of Labor and Workforce Development (in her official capacity, and together with MLGW, "Appellees"). In her claim, Ms. Newman informed the Department that she was still unable to perform her usual job duties. On October 20, 2006, the Tennessee Department of Labor and Workforce Development's Employment Security Division (the "Agency") found that Ms. Newman had been forced to leave her most recent work because she was sick or disabled, but further held that in accordance with Tennessee Code Annotated Section 50-7-303(a)(1), she was not eligible for unemployment benefits until she returned to MLGW and offered to work as soon as she was able to work again and perform her duties. Ms. Newman subsequently appealed the Agency's decision to its Appeals Tribunal. The Appeals Tribunal scheduled a hearing for November 9, 2006. Ms. Newman attended the hearing, but refused to participate without an attorney; Ms. Newman informed the Appeals Tribunal that she wanted it to subpoena her medical records from her treating physicians. The Appeals Tribunal scheduled a second hearing for Ms. Newman on December 5, 2006. Ms. Newman appeared at the December 5 hearing, but again refused to participate without the aid of an attorney and without the subpoena of her medical records. Based upon her failure to participate, the Appeals Tribunal affirmed the Agency's decision.

Ms. Newman subsequently appealed to the Shelby County Chancery Court. The trial court remanded the case to the Appeals Tribunal to allow Ms. Newman the opportunity to subpoena the requested medical documentation. Ms. Newman's medical records were obtained, and the Appeals Tribunal scheduled a hearing for May 18, 2011. By letter ruling of May 20, 2011, the Appeals Tribunal held that Ms. Newman was not eligible for unemployment benefits because she had not satisfied all of the statutory requirements. Specifically, the Appeals Tribunal found that Ms. Newman had not satisfied the statutory requirement on two grounds. First, the Appeals Tribunal explained that in order to qualify for unemployment benefits, Ms. Newman was required to have no medical restrictions and to be able to return to her former duties at the time of filing for unemployment benefits. Because Ms. Newman had admitted that she was not capable of performing her usual job duties at the time she filed for unemployment benefits, the Appeals Tribunal determined that she was ineligible for unemployment benefits. Second, the Appeals Tribunal ruled that Ms. Newman was not eligible for unemployment benefits because MLGW had shown that Ms. Newman engaged in work-related misconduct under the statutory guidelines. Specifically, Ms. Newman had engaged in work-related misconduct by failing to provide MLGW with the required medical documentation to excuse her, which was a violation of MLGW's leave policy. The Appeals Tribunal found that, after 2005, Ms. Newman had stopped submitting medical documentation to her employer because her medical doctors had released her to return to work, and that Ms. Newman had failed to follow MLGW's leave policy. Consequently, the Appeals Tribunal affirmed the Agency's denial of unemployment benefits to Ms. Newman.

Ms. Newman then appealed the Appeals Tribunal's decision to the Commissioner's Designee.[1] By letter ruling of August 19, 2011, the Commissioner's Designee adopted the Appeals Tribunal's findings, and affirmed its decision. Although the Commissioner's Designee found that Ms. Newman had misunderstood the FMLA and how it interacts with unemployment law, the Commissioner's Designee framed the issue on appeal as "whether [Ms. Newman] left work due to an illness or injury, notified [MLGW] of the need to leave, and ha[d] been released to return to work without restrictions." The Commissioner's Designee found that Ms. Newman left work due to an illness or injury, and that she had notified MLGW. However, the Commissioner's Designee further found that Ms. Newman had been medically released to return to work since December 13, 2005, but that she had failed to return. The Commissioner's Designee stated that Ms. Newman's failure to return to work was disqualifying under the medical exception set out at Tennessee Code Annotated Section 50-7-303, regardless of Ms. Newman's subjective belief that she was not capable of performing her job at that time. The Commissioner's Designee further ruled that even if it was true that Ms. Newman could not perform her usual job functions when she filed for unemployment benefits, this was still disqualifying under the medical exception. The Commissioner's Designee ruled that the fact that Ms. Newman's employment had been terminated prior to her being released to return to work did not relieve Ms. Newman from her obligation to fulfill the final requirement, which was to return to MLGW and offer herself for work. Finally, the Commissioner's Designee found that Ms. Newman had voluntarily quit her job when she failed to return to work after being released by her doctors, and that this fact could also be disqualifying because Ms. Newman's personal belief that she could not perform her job duties is considered a personal reason to leave and not good cause connected to work.

On August 26, 2011, Ms. Newman petitioned the Commissioner's Designee to rehear her appeal. On September 26, 2011, the Commissioner's Designee ruled that the petition to rehear did not provide any additional, relevant information to be considered that was not included in its prior review, or that would affect the outcome of the ...


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