Malone v. Tenn. Dep't of Safety

THERESA MALONE v. TENNESSEE DEPARTMENT OF SAFETY, ET AL.

No. M2014-00190-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

November 19, 2014 Session

March 30, 2015

Appeal from the Chancery Court for Davidson County

No. 12-1131-IV

Russell T. Perkins, Chancellor

This appeal arises out of an administrative proceeding initiated by a former driver's license examiner. After the examiner was injured on the job, she was absent from work for nearly thirteen months. For some of those months, she was on various forms of approved leave. Eventually, the examiner was terminated for job abandonment. She exhausted the Department of Safety's grievance process, and both the Commissioner of the Department and the Tennessee Civil Service Commission affirmed her termination. The examiner then appealed to the chancery court, which also affirmed the Commission's decision. The examiner appealed. Because we find the Commission's decision was not supported by substantial and material evidence and was arbitrary or capricious, we reverse and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which FRANK G. CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Grace E. Daniell, Chattanooga, Tennessee, for the appellant, Theresa Malone.

Robert E. Cooper, Jr., Attorney General and Reporter; Joe Whalen, Acting Solicitor General; and Eugenie B. Whitesell, Nashville, Tennessee, for the appellees, Tennessee Department of Safety and Tennessee Civil Service Commission.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Theresa Malone was hired by the Tennessee Department of Safety as a driver's license examiner in August 1999. On October 20, 2009, Ms. Malone was injured in a car accident while administering a road test. From October 20, 2009, to April 5, 2010, Ms. Malone was absent from work on sick leave, annual leave, family medical leave, or workers' compensation leave. Aside from several days in mid-April 2010 when she worked light duty, Ms. Malone did not return to work following her injury.

The Department was notified on June 24, 2010, that Ms. Malone had reached "maximum medical improvement," and her workers' compensation loss pay was terminated. On August 6, 2010, the Department sent Ms. Malone a letter, stating in relevant part:

You have used all of your leave and are currently in a Leave Without Pay status.

You have used your entitlement of 12 week FMLA leave, November 16, 2009 thru [sic] February 17, 2010. This would make you ineligible for FMLA leave again until November 16, 2010, depending on meeting the qualifications.

If at this time if [sic] your doctor is not ready to release you to come back to work full duty, you will need to contact Susan Cook, HR MGR, . . . by Friday August 13, 2010, to go over your intentions.

Ms. Malone and Ms. Susan Cook, a Department human resources manager, spoke by telephone on August 13, 2010. Ms. Malone asserts that Ms. Cook instructed her to address a request for extended leave to Director Michael Hogan. Ms. Malone maintains that she faxed a written request, addressed to Director Hogan, for an extension of her leave on August 16, 2010. The fax stated in relevant part: "I, Theresa Malone, am writing to request an extension of my leave, please." The Department claims it never received this fax, but the record contains a transmission verification report indicating that it was sent to the Department on August 16, 2010.

On September 20, 2010, Ms. Cook sent Ms. Malone a second letter, which stated in relevant part:

This letter is to inquire about your intentions for continued employment as a Driver License Examiner. . . . You have not applied for extended leave as we discussed and are still in a without pay status.

Please contact Director Kerri Balthrop in writing by October 1, 2010, with your intentions about your continued employment.

The letter also included Director Balthrop's fax number and mailing address.

On September 29, 2010, Ms. Malone sent a second fax to the number provided in Ms. Cook's letter. The fax included a note, "This is a copy of my fax that I faxed to you," and the transmission verification report demonstrating that a fax had been sent to the Department on August 16, 2010. The attached letter was identical to Ms. Malone's August letter requesting extended leave. The Department admits receiving the second fax. However, the parties disagree about whether Ms. Cook contacted Ms. Malone after the Department received her second fax.

On November 9, 2010, Ms. Malone was notified by a letter from the Department that she had been terminated from her employment for "job abandonment." The termination letter stated, "As of this date, there has been no written or verbal contact as requested. You have made no attempt to update the Department of Safety of your status."

Ms. Malone timely appealed the Department's decision through the grievance process. The Commissioner of the Department affirmed Ms. Malone's termination on December 1, 2010. Ms. Malone appealed the Commissioner's decision to the Tennessee Civil Service Commission.

An administrative law judge conducted a Level V Grievance hearing on July 21, 2011. Three witnesses testified at the hearing: Ms. Sandra Lorenzo, a Department human resources employee; Ms. Cook; and Ms. Malone. Ms. Lorenzo testified that she was aware that Ms. Malone spoke with Ms. Cook sometime in August 2010, but she did not know of any particular request for extended leave.

Ms. Cook testified that she spoke with Ms. Malone by telephone on August 13, 2010, regarding her position with the Department. In an e-mail summarizing their conversation, Ms. Cook wrote, "[t]his is concerning Theresa Malone, just talked to her and she's going to send a request for extended leave and will send her doctor's statement from her August 18th appointment." According to Ms. Cook, the Department's policy for requesting extended leave is to "[s]end a request through your chain of command saying you want to request extended leave - and that could be with or without pay. You have to attach a current medical statement." She testified that one of the letters she sent Ms. Malone instructed her to include a doctor's statement with a request for extended leave. In this case, Ms. Cook stated that Ms. Malone should have applied for extended leave "through her immediate supervisor - to her branch supervisor; who would have sent it to the district; then to Director Michael Hogan; and then on to Human Resources Division." However, Ms. Cook could not recall whether she informed Ms. Malone ofthis process. Ms. Cook did recall leaving a voice-mail for Ms. Malone on October 12, 2010, with a request for her doctor's name and contact information.

According to Ms. Malone, in their August 13, 2010 conversation, Ms. Cook instructed her to send a letter to Director Hogan. Ms. Malone also asserted that she provided a doctor's statement to the Department via hand delivery to her direct supervisor on August 18, 2010. The doctor's note stated that Ms. Malone could return to work on light duty. Ms. Malone claimed she also gave her direct supervisor a copy of a doctor's neurology report on September 24, 2010, and that she saw her supervisor send the report to HR. Ms. Malone denied receiving a voice-mail from Ms. Cook in October 2012 requesting medical information.

Following the grievance hearing, the Commission entered an initial order on April 13, 2012, affirming the Department's decision to terminate Ms. Malone for job abandonment under Tennessee Code Annotated § 8-30-326(c) (2002).¹ The Commission made the following relevant findings of fact:

11. An employee applies for extended leave by written request through her employee's chain of command. [Ms. Malone] did not apply for extended leave through her chain of command.

12. On August 13, 2010, [Ms. Malone] informed Ms. Cook that she would send in a doctor's statement from her August 18, 2010 appointment and a request for extended leave. Although the Department received a doctor's statement from [Ms. Malone's] August 18, 2010 appointment, it did not support a request for extended leave. Instead of providing the Department with a doctor's note supporting her request for extended leave, the doctor's note dated August 18, 2010, stated that [Ms. Malone] could return to work on light duty. However, in August 2010, [Ms. Malone] did not request light duty nor did she request extended leave.

. . . .

14. On September 20, 2010, the Department sent a letter to [Ms. Malone] giving her until October 1, 2010, to contact Kerri Balthrop, the Director of Human Resources for the Department, in writing regarding her intentions for continued employment. This letter explained that as of September 20, 2010, [Ms. Malone] had not applied for extended leave and that she was still in a leave without pay status. [Ms. Malone] did not respond to the Department's letter dated September 20, 2010. Specifically, [Ms. Malone] did not contact Director Kerri Balthrop in writing as instructed.

15. On October 11, 2010, Director Hogan of the Driver License Division requested an update on [Ms. Malone's] status. Ms. Cook informed Director Hogan that in August 2010, the Department had received a fax requesting extended leave², but no medical information was attached. On October 12, 2010, Ms. Cook left [Ms. Malone] a message requesting updated medical information.

16. [Ms. Malone] knew that any request for leave must have a doctor's statement attached. [Ms. Malone] failed to follow the Department's procedures for requesting extended leave.

. . . .

22. The Department terminated [Ms. Malone] for job abandonment after [Ms. Malone] did not return to work after her approved sick leave, FMLA leave and Worker's Comp leave had been exhausted, and after [Ms. Malone] failed to request extended leave in writing with appropriate medical documentation as instructed by the Department. While there is no guarantee that a

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