IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
DOUGLAS McPHERSON, )
April 11, 1997
)
Plaintiff/Appellant, ) Cecil W. Crowson
) Appellate Court Clerk
VS. ) Davidson Chancery
) No. 93-3444-II
BILLY STOKES, in his capacity as )
Commissioner of the Tennessee ) Appeal No.
Department of Employment Security; ) 01A01-9505-CH-00216
and SATURN CORPORATION, a )
corporation doing business in )
Tennessee, )
)
Defendants/Appellees. )
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE C. ALLEN HIGH, CHANCELLOR
For the Plaintiff/Appellant: For the Defendant/Appellee
State of Tennessee:
David Kozlowski
Columbia, Tennessee John Knox Walkup
Attorney General and Reporter
Robert W. Stack
Vernon A. Melton, Jr.
Nashville, Tennessee
Saturn Corporation:
Waverly D. Crenshaw, Jr.
Stephen W. Grace
Waller, Lansden, Dortch & Davis
Nashville, Tennessee
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves a claim for unemployment compensation benefits by
an employee who declined to return to work following a leave of absence. The
Department of Employment Security denied the claim because the employee had
left his job voluntarily without good cause connected with his work. The
Chancery Court for Davidson County affirmed the denial of the employee’s claim,
and the employee perfected this appeal, asserting that he did not leave his job
voluntarily because his employer had not formally denied his second request for
personal leave when it notified him of his separation. We affirm the denial of
unemployment compensation benefits.
I.
Douglas McPherson began working at Saturn in June 1992. Six months
later, he requested a one-month leave of absence to enable him to appear as a
witness in court proceedings in Michigan. Saturn granted Mr. McPherson leave
from January 11 through February 11, 1993. Mr. McPherson decided to take
additional leave before his original leave expired, and on February 5, 1993, mailed
Saturn a standard form requesting additional leave until January 11, 1994. In an
accompanying letter, Mr. McPherson justified his request for additional leave on
“an ongoing court subpoena and unfinished personal business.”
Saturn did not act immediately on Mr. McPherson’s second request for
leave but apparently telephoned him several times to discuss his plans for
returning to work. During one conversation, a supervisor informed Mr.
McPherson that “We don’t think we can approve this absence for the length of
time you’re asking.” Mr. McPherson remained in Michigan rather than returning
to work, and on March 5, 1993 wrote Saturn a letter insisting on written notice of
“Saturn’s position on this matter.” On March 12, 1993, Saturn informed Mr.
McPherson that he was being “separated . . . as a voluntary quit” effective on
March 12, 1993 because he had failed to report for work following the expiration
of his personal leave of absence.
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Mr. McPherson filed a claim for unemployment compensation benefits on
March 23, 1993. The Department of Employment Security denied his claim on
April 1, 1993, and the department’s board of review upheld the denial on October
13, 1993. Mr. McPherson then sought judicial review of the administrative denial
of his claim, and on March 17, 1995, the Chancery Court for Davidson County
affirmed the administrative decision that Mr. McPherson was not entitled to
unemployment compensation benefits.
II.
Tennessee’s unemployment compensation statutes provide a system of
temporary compensation to help support workers who become unemployed
through no fault of their own. The system is expressly aimed at ameliorating the
harsh economic effects of involuntary unemployment on workers and their
families. See Tenn. Code Ann. § 50-7-102(a) (1991). Accordingly, workers who
leave their jobs “voluntarily without good cause connected with . . . [their] work”
are not entitled to receive unemployment compensation benefits. Tenn. Code
Ann. § 50-7-303(a)(1) (Supp. 1996).
The courts review administrative decisions regarding unemployment
compensation benefits using the standards contained in Tenn. Code Ann. § 50-7-
304(i)(2) (Supp. 1996). The sole issue presented by this appeal is whether the
administrative denial of Mr. McPherson’s claim is based on a correct
interpretation and application of the statutory “voluntary quit” disqualification.
See Tenn. Code Ann. § 50-7-304(i)(2)(A). Since the material facts in this case are
essentially undisputed, this issue presents a question of law. Cooper v. Burson,
221 Tenn. 621, 626-27, 429 S.W.2d 424, 426 (1968); Frogge v. Davenport, 906
S.W.2d 920, 922 (Tenn. Ct. App. 1995).
III.
Mr. McPherson justifies his continued absence from work by asserting that
he was not required to return to his job until he received a formal, written denial
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of his second request for extended personal leave. At the administrative hearing,
he asserted that a court subpoena took precedence over Saturn’s expectation that
he would return to work and insisted that he “did not really need a request for
special leave of absence for personal reasons.” Mr. McPherson has cited no work
rule or other authority for the notion that an employee can unilaterally extend his
or her own leave in these circumstances.
A.
An employee need not form a specific intent to quit his or her job to be
disqualified to receive unemployment compensation benefits under Tenn. Code
Ann. § 50-7-303(a)(1). Courts will find that an employee has voluntarily
terminated employment if the employee fails to take all necessary and reasonable
steps to protect his or her employment. Freeman v. District of Columbia Dep’t of
Employment Servs., 568 A.2d 1091, 1093 (D.C. 1990); In re Claim of Bonilla, 650
N.Y.S.2d 360, 361 (N.Y. App. Div. 1996); Zielinski v. Unemployment
Compensation Bd. of Review, 101 A.2d 419, 420 (Pa. Super. Ct. 1953).
Accordingly, a voluntary act or failure to act with knowledge that termination may
follow can be considered a voluntary leaving. Smith v. Department of
Employment Sec., 780 P.2d 1335, 1336 (Wash. Ct. App. 1989); Paul H. Sanders,
Disqualification for Unemployment Insurance, 8 Vand. L. Rev. 307, 317-20
(1955).
In this context, the word “voluntarily” connotes the employee’s volition or
will in contrast to conduct compelled by the employer. Cruz v. District of
Columbia Dep’t of Employment Servs., 633 A.2d 66, 70 (D.C. 1993); Dingmann
v. Travelers Country Club, 420 N.W.2d 231, 233 (Minn. Ct. App. 1988);
Chandler v. Department of Employment Sec., 678 P.2d 315, 320 (Utah 1984).
Voluntary acts are ones taken on the employee’s own motion or accord. Moulton
v. Iowa Employment Sec. Comm’n, 34 N.W.2d 211, 213 (Iowa 1948); Kentucky
Unemployment Ins. Comm’n v. Young, 389 S.W.2d 451, 453 (Ky. Ct. App. 1965).
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As a general matter, employees who do not return to work following a leave
of absence are deemed to have left their employment voluntarily. Nofrio v.
Department of Labor & Employment Sec., 442 So. 2d 268, 269 (Fla. Dist. Ct. App.
1983); In re Juarez, 646 N.Y.S.2d 735, 736 (N.Y. App. Div. 1996). Occasions
may arise, however, that require an employer to give an employee the choice of
returning to work or being terminated. Thus, employees who have not returned
to work have not lost their unemployment compensation benefits if their
employer’s failure to inform them that their leave is unacceptable leads them to
believe that the leave is excused. See Goodman v. Engle Homes, Inc., 621 So.2d
523, 524 (Fla. Dist. Ct. App. 1993).
B.
This is not a case in which Saturn’s inaction induced Mr. McPherson to
believe that his continuing absence from work was excused. To the contrary, Mr.
McPherson unilaterally decided to extend his leave when he knew that Saturn
expected him to return to work. Saturn’s standard leave form, which Mr.
McPherson filled out on two occasions, states that “[f]ailure to return to work on
the first scheduled work day following the expiration date of this leave will be
considered a voluntary quit, and separation will occur.” In addition to this
warning, one of Mr. McPherson’s supervisors told him during a telephone
conversation following the expiration of his first leave that his second leave
request would not be approved.
Rather than taking steps to return to work following his telephone
conversations with Saturn personnel, Mr. McPherson decided to prolong his leave
by demanding a formal written response to his request for leave even though he
already knew his request had not and would not be approved. Mr. McPherson
failed to take the steps reasonably necessary to protect his job when he decided not
to return to work. His decision was a voluntary one, and thus the administrative
agency properly concluded that he had voluntarily left his employment without
good cause connected with the work.
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IV.
We affirm the denial of Mr. McPherson’s claim for unemployment
compensation benefits and remand the case to the trial court for whatever
additional proceedings may be necessary. We tax the costs of this appeal to
Douglas McPherson and his surety for which execution, if necessary, may issue.
_______________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
______________________________
HENRY F. TODD, P.J., M.S.
______________________________
BEN H. CANTRELL, JUDGE