Tennessee Reports


RUFF v. NEELEY, W2006-01192-COA-R3-CV (Tenn.App.
12-20-2006) JOHN RUFF v. JAMES G. NEELEY, Tennessee
Commissioner of Labor and Workforce Development, and
EPERFORMAX, INC. No. W2006-01192-COA-R3-CV. Court of
Appeals of Tennessee. November 29, 2006. Filed December
20, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Direct Appeal from the Chancery Court for
Shelby County; No. CH-04-1206-1; Walter Evans, Chancello.

Judgment of the Chancery Court Affirmed.

John Ruff, Memphis, TN, pro se

Paul G. Summers, Attorney General & Reporter, Lauren S.
Lamberth, Assistant Attorney General, Nashville, TN, for
Appellee James G. Neeley

Eugene Stone Forrester, Jr., Memphis, TN, for Appellee
Eperformax, Inc.

ALAN E. HIGHERS, J., delivered the opinion of the court, in
which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.


This case involves a claim for unemployment benefits after
an employee was terminated for failing to follow company
policy and refusing to follow his supervisor’s
instructions. A female co-worker had previously complained
about the claimant’s repeated attempts to ask her out on
dates and several occasions when he had followed her to her
car, all of which had made her uncomfortable. The claimant
was suspended for two days at that time. A few months
later, another female co-worker complained to her
supervisor about the claimant’s behavior after he continued
asking her out on dates for over a month, waited for her at
her car, and eventually hugged her at work after she
rejected another invitation to go out with him. A meeting
was held about the claimant`s conduct, and his female
co-worker and his supervisors asked that he agree not to
communicate with the co-worker in the future. The claimant
would not agree to stop contacting his co-worker, and he was
terminated from his employment the next day. He filed for
unemployment benefits, which were initially approved by the
Department of Labor. On appeal, the Appeals Tribunal found
that the claimant was disqualified from receiving benefits
because he had been terminated for work related misconduct.
The finding was affirmed by the Board of Review, and later
by the chancery court. For the following reasons, we



John Ruff began working as a “Marketing Associate,” or
telephone representative, for ePerformax, Inc., on January
8, 2003. ePerformax is a third-party call center that
provides sales and customer service for other companies.
When he was hired, Mr. Ruff signed a “Professionalism
Policy” specifically prohibiting sexual harassment of any
kind. He also signed an “Employee Handbook Receipt” stating
that he had reviewed ePerformax’s Employee Handbook and
agreed to abide by its guidelines.[fn2] Section 1 of the
Handbook provides, in pertinent part, that:

An employee may be dismissed for any reason, at any time,
including (but not limited to) . . . violation of policy,
. . . insubordination, . . . misbehavior or misconduct.
ePerformax will not allow any form of harassment or any
such conduct that has the purpose or effect of
interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive work
environment; ePerformax may dismiss an employee for such

All employees are asked to be sensitive to the individual
rights of their co-workers.

. . .

Sexual harassment, as defined by this policy, includes,
but is not limited to, sexual advances, verbal or physical
conduct of a sexual nature (sexual related
comments/uninvited touching), visual forms of a sexual
nature (i.e., signs, posters, and the like), or requests
for sexual favors.

. . .

Sexual harassment is considered to be a major violation
of company policy and (depending upon the severity of the
violation) will result in disciplinary action including
termination of employment.

It is undisputed that Mr. Ruff’s job performance as it
relates to his duties at ePerformax was never an issue.

In May of 2003, Ms. Robin Pennington, one of Mr. Ruff’s
female co-workers, expressed her concern about Mr. Ruff to
ePerformax’s Human Resources Department. Ms. Kelly Legett,
the Human Resources Director, held a meeting with Ms.
Pennington to discuss the situation. Ms. Pennington
explained that she felt uncomfortable because Mr. Ruff
repeatedly asked her out on dates, sometimes two or three
times per day. Mr. Ruff had followed her to her car at the
end of shifts about six or seven times, asking to speak to
her privately or asking her out on dates. Ms. Pennington
kept telling Mr. Ruff that she did not want to date him,
but Mr. Ruff had been asking her out for about a month and
a half. On one occasion, Ms. Pennington told Mr. Ruff that
she was dating someone else, and Mr. Ruff became angry with
her. Ms. Pennington signed a written statement describing
these events on May 2, 2003.

Ms. Kathleen Gordon, another female co-worker, had
witnessed Mr. Ruff’s advances toward Ms. Pennington. She
also spoke with Ms. Legett about Mr. Ruff’s behavior and
stated that he had frequently followed Ms. Gordon and Ms.
Pennington to breaks and when leaving for the day. Ms.
Gordon had often heard Ms. Pennington tell Mr. Ruff that she
was not interested in dating him. Ms. Gordon also explained
that Mr. Ruff had given Ms. Pennington a birthday card the
day before with his telephone number written inside it and
a note asking if she was interested in dating him. She said
the card made Ms. Pennington upset, and she thought Mr.
Ruff would continue to approach Ms. Pennington. Ms. Gordon
noted that Mr. Ruff also made her uncomfortable, and she
feared that he would approach them if he found out they had
spoken to management about him.

On May 5, 2003, Mr. Ruff was called to a meeting to discuss
the situation with Ms. Legett, the Human Resources
Director, and Ms. Phaedra Page, the Call Center Manager.
Mr. Ruff acknowledged that he had asked Ms. Pennington out
on several occasions, but he felt she did not make it clear
that she did not want to date him. ePerformax suspended Mr.
Ruff for two days based on these incidents. A written memo
was prepared about the incident which stated, in relevant

Going forward, [Mr. Ruff] must not approach Robin
Pennington or have any further contact to avoid creating
further discomfort. He should refrain from similar
behavior or any other behavior that could create an
uncomfortable environment.

. . .

Further similar behavior, failure to follow the
directives outlined above, or violation of any other
ePerformax policy or practice will result in further
corrective action, up to and including termination of

Mr. Ruff refused to sign the memo, and after discussing the
memo with the Vice President of Human Resources, Ms. Rita
Van Vranken, he claimed that she told him he did not have
to sign it. There were no further complaints by Ms.
Pennington and it appears that she either quit working at
ePerformax or was terminated in August of 2003.

In November of 2003, Mr. Ruff began to express an interest
in Ms. Eloise Worship, another female co-worker. Mr. Ruff
had begun sitting beside her and asking her to lunch and to
other places, and Ms. Worship had consistently refused. He
would approach her in the break room and advise her of the
types of food she should buy from the vending machine,[fn3]
and he left notes, candy and fruit on her desk. Mr. Ruff had
also been waiting for her at her car in the parking lot,
and he appeared at places where she would go after work
such as the grocery and the mechanic’s shop. Ms. Worship
felt that Mr. Ruff was eavesdropping on her private
conversations at work. On December 1, Mr. Ruff asked Ms.
Worship to join him for a cup of tea, and she refused.
According to Ms. Worship, Mr. Ruff proceeded to hug her and
that made her very uncomfortable. She immediately
complained to her supervisor, Mr. Tommy Crawford, about Mr.
Ruff’s behavior. She explained that she wanted to meet with
Mr. Ruff to ask him to stop approaching her, but she wanted
management personnel to be present.

On that same day, a meeting was held involving Mr. Ruff,
Ms. Worship, Ms. Legett, and Mr. Crawford. Ms. Worship
explained how his specific behaviors had made her
uncomfortable, and she requested that he not ask her out or
leave things on her desk. Mr. Ruff acknowledged that he had
“picked up on her discomfort,” but he still thought she
could have been attracted to him. Ms. Worship asked if he
would commit to only having a working relationship with
her, and he would not agree to such a commitment. Finally,
she asked him not to even speak to her anymore, and Ms.
Worship was allowed to leave the meeting.

Ms. Legett then emphasized to Mr. Ruff the importance of
stopping certain behaviors when he is told “no” or is
advised that he is making other employees uncomfortable.
She also discouraged his touching of co-workers beyond a
professional handshake. Mr. Ruff offered to demonstrate how
he had “hugged” Ms. Worship on Mr. Crawford, but Mr.
Crawford said “no, no” and waved him away. Mr. Ruff
proceeded to hug Mr. Crawford anyway, and according to Ms.
Legett and Mr. Crawford, Mr. Ruff stated that he had the
right to hug someone if he wanted to. Ms. Legett and Mr.
Crawford again asked Mr. Ruff to agree not to contact Ms.
Worship again. When Mr. Ruff would not give them a
commitment, he was sent home for the day. Mr. Ruff was
terminated the next day via telephone. Mr. Ruff wrote
letters regarding his termination to Ms. Van Vranken, the
Human Resources Vice President. She responded with a letter
explaining that she had reviewed the facts and
documentation, and that his termination was fair and
consistent with ePerformax’s policies.

On December 8, 2003, Mr. Ruff filed a claim with the
Department of Labor and Workforce Development (“the
Agency”) for unemployment benefits. When filing his claim,
Mr. Ruff explained that ePerformax had discharged him for
violating its sexual harassment policy, but he did not
think his actions constituted sexual harassment. He also
noted that the “[p]ersonnel director made me aware of
sexual harassment in May 2003 when I gave an employee a
birthday card.” The Department of Labor issued an “Agency
Decision” on December 30, 2003, approving benefits for Mr.
Ruff because there was insufficient evidence of work-related
misconduct to disqualify him from receiving benefits.
ePerformax appealed the Agency Decision and requested an
in-person hearing before the Appeals Tribunal.

Mr. Ruff requested that the Appeals Tribunal subpoena three
witnesses to testify at the hearing — Ms. Worship,
Ms. Legett, and Ms. Van Vranken. However, Mr. Ruff
subsequently wrote to the Appeals Tribunal withdrawing his
request for an in-person hearing. Nevertheless, a hearing
was held before the Appeals Tribunal on February 10, 2004,
and Ms. Worship, Ms. Legett, Mr. Crawford, and Mr. Ruff all
testified. Ms. Van Vranken did not testify at the hearing,
and Mr. Ruff’s request for her to be subpoenaed is marked
“no first knowledge. only involved in [employer] internal
process.” The Appeals Hearing Officer heard extensive
testimony from the witnesses, and the hearing lasted more
than twice as long as most hearings before the Appeals
Tribunal. On February 11, 2004, the Appeals Tribunal issued
its decision with the following findings:

FINDINGS OF FACT: Claimant’s most recent employment prior
to filing this claim was with E Performax as a marketing
associate between January 2003 and December 2003. Claimant
was discharged after he refused to follow management’s
instructions not to communicate with, harass or continue
to try to socialize with a fellow co-worker. Employer met
with claimant for two hours December 1, 2003 and discussed
his behaviors during the month of November 2003. The
meeting involved management, claimant and a co-worker who
asked claimant to stop asking her out because she was not
interested in him. Claimant had often tried to have
personal conversation with her as well as ask her out.
Claimant would leave candy, fruit and notes for her. On
one occasion he waited for her near her car and on two
occasions she has seen him at locations away from the job
site and she felt he was following her. Claimant [sic] had
asked that he stop asking her out stating she was not the
person for him. The final incident was when he asked her
out for tea one afternoon when there was a break in the
work day. She rejected this offer and he proceeded to hug
her without her permission. Claimant also told her just to
let him know when she would go have tea with him.
Claimant [sic] stated she was not interested in him.
Co-worker reported the situation to management because she
felt claimant was not listening to her and accepting no
for her answer. A meeting was called with employer and
claimant to address co-workers complaints. Employer noted
in the meeting that there had been a previous warning to
claimant in May 2003 after another employee made a
complaint about claimant and him being persistent asking
her out. Claimant was warned then and reminded of the
workplace harassment policy which addressed creating a
hostile work place. Claimant refused to sign the warning
and he protested the warning but the warning was not
rescinded despite his requests to upper management. After
a two hours meeting, the human resources director asked
claimant if he was going to comply with her requests not
to communicate or ask out his co-worker. Employer wanted
assurances he would no longer create a hostile work
environment for her but claimant stated no he could not
guarantee employer. Claimant felt employer was interfering
with his rights to ask someone out and interfering with
his right to find a wife and/or to date someone. Claimant
was suspended for the day and terminated the following day
for violating the company harassment policy and for
failing to follow instructions from management as it
relates to his behaviors with his co-workers.

CONCLUSIONS OF LAW: The claimant is disqualified from
receiving benefits. The issue is whether claimant is
guilty of work connected misconduct under TCA §
50-7-303. Misconduct is an intentional act or a violation
of policy that breaches the standards of behavior an
employer has a right to expect. Claimants are eligible
for unemployment insurance benefits when they have been
separated due to no fault of their own. In this case,
claimant disregarded employer’s best interests when he
failed to comply with the company sexual harassment policy
and he failed to obey reasonable instructions from
employer. Claimant had been warned about similar behavior
just a few months earlier when employer instructed him
not to harass or create a hostile work environment for
employees. Claimant was pursuing a relationship with a
co-worker who continued to say no. After being warned, a
second co-worker communicated to claimant that she was
not interested in him but he persisted to ask her out and
he left her gifts and notes as well as meeting her at her
car even hugging her when it was not welcomed, creating a
hostile work environment. Claimant was asked by the
co-worker to move on because she was not interested but
he did not comply. Claimant then refused to obey
instructions by management who warned him once again to
stop harassing his female co-worker. Claimant admits to
his actions and he admits he refused to comply with
employer’s instructions. The Tribunal finds his actions
rise to misconduct and they do violate the company sexual
harassment policy as well as reasonable instructions from
management. Employer had just cause to release claimant
under these conditions.

DECISION: The Agency Decision is reversed. 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. Any payments received by the claimant
under this claim are an overpayment and must be refunded
to the Agency.

Mr. Ruff subsequently sent to the Appeals Tribunal a
“Request for Reconsideration & to Amend Findings of Fact”
along with a “Request for Appeals Tribunal to Issue Witness
Subpoenas.” He asked the Appeals Tribunal to subpoena Ms.
Pennington and Ms. Van Vranken, as well as other co-workers
including Ms. Gordon, Joyce McCree and Maynard Anthony. In
addition, he requested that Ms. Worship and Mr. Crawford be
subpoenaed to testify again before the Appeals Tribunal.

Mr. Ruff then requested an additional hearing before the
Agency`s second appellate level, the Board of Review. He
asked that Ms. Worship and Mr. Crawford be subpoenaed so
that he could question them further, and he also requested
that Ms. Pennington be subpoenaed. The Board did not hold
an additional hearing on Mr. Ruff’s claim, and it affirmed
the Appeals Tribunal’s finding based on the existing
record. Mr. Ruff filed a Petition to Rehear, which was

Mr. Ruff then filed a Petition for Judicial Review in the
Chancery Court of Shelby County. The trial court found
substantial and material evidence to support the Agency’s
finding that Mr. Ruff had engaged in disqualifying
misconduct. Therefore, the Board of Review’s decision was
affirmed, and Mr. Ruff’s petition was dismissed. Mr. Ruff
filed his notice of appeal to this Court on May 31, 2006.


Appellant has timely filed his notice of appeal and
presents the following issues, as we perceive them, for our

1. Whether substantial and material evidence exists to
support the conclusions of the agency and the chancellor
that claimant violated ePerformax’s sexual harassment

2. Whether the chancellor failed to consider the entire
record in violation of T.C.A. §

3. Whether defendants carried their burden of proof in
disqualifying claimant from receiving benefits;

4. Whether the Appeals Tribunal erred in allowing
ePerformax’s May 5, 2003 memorandum to stand as a “prior
warning” for termination purposes;

5. Whether claimant owed a duty to ePerformax to enter
into a proposed agreement to stop associating with female
co-workers Pennington and Worship;

6. Whether the chancellor’s decision affirming the Board
of Review was arbitrary and capricious;

7. Whether the agency’s decision was legally insufficient
because there was no statutory finding of “misconduct
connected with work”;

8. Whether the Board of Review and Appeals Tribunal
violated claimant’s Constitutional rights by denying some
of his requests for witness subpoenas and for an
additional hearing;

9. Whether the Appeals Tribunal denied claimant a fair

For the following reasons, we affirm the decision of the
chancery court.


This Court reviews administrative unemployment compensation
decisions using the same standard employed by trial courts.
Ford v. Traughber, 813 S.W.2d 141, 144 (Tenn.Ct.App. 1991);
Armstrong v. Neel, 725 S.W.2d 953, 955 (Tenn.Ct.App. 1986).
It is statutorily defined and set forth in Tenn. Code Ann.
§ 50-7-304(i) (2005):

(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:

(A) In violation of constitutional or statutory

(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;

(E) Unsupported by evidence that is both substantial and
material in the light of the entire record.

The standard is more narrow than the broad standard
employed in other civil appeals. Wayne County v. Tenn.
Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279
(Tenn.Ct.App. 1988). We defer to the decisions of
administrative agencies when they are acting within their
area of specialized knowledge, experience, and expertise.


We believe Mr. Ruff’s assignments of error can be
summarized by addressing two main issues: whether the
Agency’s decision was arbitrary and capricious or
unsupported by substantial and material evidence; and
whether he was denied a fair hearing because all of his
requests for subpoenas were not granted.

A. Review of the Agency’s Decision

When the evidentiary basis of a decision involving an
unemployment compensation claim is attacked, courts must
review the entire record, including any proof that fairly
detracts from the agency’s decision, to determine whether
it is arbitrary, capricious, characterized by an abuse of
discretion, or unsupported by substantial and material
evidence. Armstrong v. Neel, 725 S.W.2d 953, 955
(Tenn.Ct.App. 1986) (citing Tenn. Code Ann. §
50-7-304(i)(2)(D), (E)). An agency’s decision is arbitrary
if it lacks any rational basis. MobileComm of Tenn., Inc.
v. Tenn. Pub. Serv. Comm`n, 876 S.W.2d 101, 104
(Tenn.Ct.App. 1993). “Substantial and material evidence”
means “relevant evidence which a reasonable mind might
accept to support a rational conclusion and which furnishes
a reasonably sound basis for the action being reviewed.”
Armstrong, 725 S.W.2d at 955 (citing Southern Ry. Co. v.
State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.
1984); Pace v. Garbage Disposal Dist. of Washington County,
54 Tenn. App. 263, 267, 390 S.W.2d 461, 463 (1965)). Where
the facts are virtually undisputed, the question of whether
the employee’s actions constituted “misconduct” under the
statute is a question of law that we review de novo. Tenn.
R. App. P. 13(d) (2006); Hallowell v. Vestco, Inc., No.
W2004-01322-COA-R3-CV, slip op. at 7 (Tenn.Ct.App. W.S. May
4, 2005).

Tenn. Code Ann. § 50-7-303(a)(2) provides that a
claimant shall be disqualified from receiving benefits if
the administrator finds that the claimant was discharged
from his employment for “misconduct connected with such
claimant’s work”. In order to establish a disqualification
under this statute, an employer must show that its employee
materially breached a duty which the employee owed to the
employer. Trice v. Traughber, 797 S.W.2d 886, 887 (Tenn.
1990). Unless the employee`s wrongdoing violated such a
duty, it cannot amount to “misconduct connected with his
work.” Id. (citing Weaver v. Wallace, 565 S.W.2d 867, 870
(Tenn. 1978)).

The statute does not define “misconduct connected with
work,” so its meaning has been developed on a case by case
basis. Armstrong, 725 S.W.2d at 956. Actions that are not
deemed to be “misconduct” within the meaning of the statute
include: mere inefficiency, unsatisfactory conduct, failure
to perform as the result of inability or incapacity,
inadvertence or ordinary negligence in isolated instances,
or good faith errors in judgment. Id. (citing Boynton Cab
Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941)).
Generally, “misconduct connected with work” has been
described as:

conduct evincing such wilful 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 to show
an intentional and substantial disregard of the
employer’s interests or of the employee’s duties and
obligations to the employer.

Id. This Court has previously stated that an employee’s
refusal to follow the lawful requests of a supervisor is
the “classic example” of a deliberate violation or
disregard of standards of behavior which an employer has
the right to expect of his employee. Hallowell v. Vestco,
Inc., No. W2004-01322-COA-R3-CV, slip op. at 7 (Tenn.Ct.App.
W.S. May 4, 2005) (citing Russell v. Culpepper, 1997 WL
129110, at *3 (Tenn.Ct.App. March 21, 1997). When an
employee refuses a supervisor’s lawful request, that
employee has engaged in misconduct connected with his work
within the meaning of Tenn. Code Ann. §
50-7-303(a)(2). Id. The legislature has rationally
determined that an employee who intentionally refuses to
carry out orders is excluded from the government protection
of unemployment benefits. Id.

After reviewing the entire record, we find substantial and
material evidence to support the factual findings of the
Appeals Tribunal, Board of Review, and the trial court. In
addition, their legal conclusions have a reasonable basis
in the law and were not arbitrary or capricious. It is
undisputed that Mr. Ruff was made aware of ePerformax’s
sexual harassment policy in May of 2003 when Ms. Pennington
complained about his behavior. At that point, two female
co-workers had communicated to the Human Resources
Department that Mr. Ruff’s behavior made them feel
uncomfortable. Although Mr. Ruff disputes the effect of the
written memo prepared after the meeting because he refused
to sign it, he acknowledged that the memo had never been
formally rescinded. Also, his two-day suspension from work
certainly made him aware that ePerformax was serious about
enforcing its policy. In November of the same year, Mr.
Ruff began to ask out another co-worker even after he had
“picked up on her discomfort.” She felt it was necessary to
have management present when she firmly asked him not to
ask her out anymore or leave things at her desk. Despite
her efforts, Mr. Ruff would not agree to stop communicating
with her. Mr. Ruff was then asked by his supervisor and the
Human Resources Director to agree not to contact Ms. Worship
again, and Mr. Ruff would not give them such a commitment.
Mr. Ruff’s course of conduct had persisted for over a
month, he had created an offensive work environment for his
co-workers, and ePerformax had reason to believe that Mr.
Ruff would continue to disturb Ms. Worship at work. This
type of behavior clearly demonstrates a “wilful and wanton
disregard of an employer’s interests” as a “deliberate
violation[] or disregard of standards of behavior which the
employer has the right to expect of his employee.” See
Armstrong, 725 S.W.2d at 956. As such, we agree with the
finding that Mr. Ruff was terminated for “misconduct
connected with work” and thereby disqualified from
receiving unemployment benefits. See Tenn. Code Ann.
§ 50-7-303(a)(2) (2005).

B. Mr. Ruff’s Requests for Issuance of Subpoenas

Mr. Ruff also challenges the Agency’s decision not to issue
subpoenas for all of the witnesses he had requested prior
to his hearing. Before Mr. Ruff’s hearing at the Appeals
Tribunal stage, he requested that three subpoenas be
issued: for Ms. Worship, Ms. Kelly Legett, and for Ms. Rita
Van Vranken. The only witness Mr. Ruff had requested who
did not testify was Ms. Van Vranken. A regulation governing
the Department of Labor’s appeal stages provides that
“[t]he Chief of the Appeals Tribunal and the Special Master
or Chairperson of the Board of Review shall issue subpoenas
for witnesses . . . upon written request by the claimant or
the employer.” Tenn. Comp. R. & Regs. 0560-3-4-.04(1)
(2006). However, this right is not absolute. The regulation
goes on to state that:

(4) The right to subpoena witnesses . . . shall be
subject to the limitation that no subpoena shall be issued
if the Chief of the Appeals Tribunal or Chairman of the
Board of Review finds, on the basis of specific facts,
that issuance of the subpoena would result in an abusive
and oppressive imposition, or would delay the proceedings

(a) In determining whether a subpoena is abusive,
oppressive, or would delay the proceedings unnecessarily,
the Chief of the Appeals Tribunal or Chairperson of the
Board of Review shall consider:

1. the relevance of the expected testimony to the case,

2. the proximity of the prospective witness`s information
to the issues at stake, and

3. the possible duplication of testimony among witnesses,

4. any other factors which are material to the case.

(b) If a subpoena is denied, an offer of proof may be
made at the hearing concerning the evidence sought. If,
after hearing the available evidence, the hearing officer
determines that the proposed evidence could materially
affect the outcome of the case, the hearing officer shall
continue the hearing for the purpose of issuing the

Tenn. Comp. R. & Regs. 0560-3-4-.04(4) (2006). After
reading this regulation in its entirety, it is clear that a
claimant’s request for a subpoena to be issued may be
denied for certain reasons. Mr. Ruff`s request for Ms. Van
Vranken to be subpoenaed was marked by the Agency: “no
first knowledge. only involved in [employer] internal
process.” Ms. Legett was the Human Resources Director who
attended the meetings with Mr. Ruff, and Ms. Van Vranken
was the Vice President of Human Resources to whom he had
written letters disputing his suspension and termination.
The relevant regulation gives the Appeals Tribunal
discretion to deny a subpoena upon a finding that the
witness’s testimony would delay the proceedings
unnecessarily, and it appears that the Tribunal concluded
that Ms. Legett’s testimony about the events would be
sufficient. Mr. Ruff did not have an absolute right to
subpoena Ms. Van Vranken, and we find no error in the
Appeals Tribunal’s decision not to issue the subpoena.

Mr. Ruff had also requested that subpoenas be issued when
he filed his “Request for Reconsideration” with the Appeals
Tribunal and when he requested an additional hearing with
the Board of Review. The previously-mentioned regulation
does provide that the Board of Review`s Chairperson “shall”
issue subpoenas upon request, with certain limitations.
However, there is also a statute which appears to clarify
that the Board need not hold an additional hearing in every
case. Tenn. Code Ann. § 50-7-304(e)(1) states that,
in reviewing a claim, the Board of Review may proceed “on
the basis of the evidence previously submitted in such
case, or direct the taking of additional evidence . . . .”
Again, we do not believe that Mr. Ruff had an absolute right
to subpoena witnesses at this stage of the proceedings.

In any event, we find that any alleged error by the Board
in not issuing the subpoenas would be harmless. “No
decision of the board shall be reversed, remanded or
modified by the chancellor, unless for errors that affect
the merits of the final decision of the board.” Tenn. Code
Ann. § 50-7-304 (i)(3) (2005). Ms. Worship, Ms.
Legett, Mr. Crawford and Mr. Ruff had testified at length
about the incidents leading to Mr. Ruff’s termination. For
the most part, the facts were undisputed and Mr. Ruff only
debated the characterization of his actions as harassing
Ms. Worship. He testified about his discussions with Ms.
Van Vranken and the letters of correspondence between them
were included in the record. In sum, we cannot say that the
Agency’s failure to subpoena the other witnesses more
probably than not affected the outcome of the case, and
thus, any potential error was harmless. See Tenn. Code Ann.
§ 50-7-304 (i)(3) (2005); Tenn. R. App. P. 36(b)
(2006); Elliott v. Neeley, No. E2004-00203-COA-R3-CV, slip
op. at 5 (Tenn.Ct.App. E.S. Feb. 22, 2005) (Board of
Review’s failure to reschedule a hearing when a witness did
not appear was harmless error when claimant testified as to
what missing witness would have stated).


For the aforementioned reasons, we affirm the decision of
the chancery court. Costs of this appeal are taxed to
Appellant, John Ruff, for which execution may issue if

[fn1] Tenn. R. Ct. App. 10 states:

This Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify
the actions of the trial court by memorandum opinion when
a formal opinion would have no precedential value. When a
case is decided by memorandum opinion it shall be
designated “MEMORANDUM OPINION,” shall not be published,
and shall not be cited or relied on for any reason in any
unrelated case.

[fn2] Mr. Ruff claims he never received a copy of the
Employee Handbook, but the “Handbook Receipt” he signed
states otherwise. Also, according to the Receipt, Mr. Ruff
understood that any of the information in the Handbook
could be found on a computer just outside the call center
and he was free to access the information at any time.

[fn3] During the May 2003 incident, Ms. Pennington had also
complained about Mr. Ruff saying things like, “Jesus would
want you to stop eating meat.”