Opinion
NO. 2016-CA-000413-MR
02-02-2018
HERMAN GAMBOA APPELLANT v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND LOUISVILLE MUSEUM OF HISTORY APPELLEES
BRIEF FOR APPELLANT: Philip C. Kimball Louisville, Kentucky BRIEF FOR APPELLEES: Amy F. Howard Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 15-CI-002115 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. JOHNSON, JUDGE: This is an appeal from the February 25, 2016 Order of the Jefferson Circuit Court affirming the Final Order of the Kentucky Unemployment Insurance Commission ("Commission") denying unemployment benefits to Herman Gamboa ("Gamboa"). After reviewing the record in conjunction with the applicable legal authorities, we AFFIRM.
BACKGROUND
On June 5, 2007, Gamboa began full-time work with the Louisville Museum of History and Science ("Museum"). On August 29, 2013, Gamboa was given a written reprimand by Mike Norman ("Norman"), Director of Business Operations for the Museum, stating that Gamboa had requested "[p]ersonal information from certain summer employees, including where they lived, email account, and school attended, and mention of possibly visiting them at school." The reprimand went on to state that such questions made the employees uncomfortable and could be a violation of the Team Member Harassment policy. The reprimand further stated that it [s]trictly prohibits verbal or physical conduct by any Team Member, which harasses, disrupts, or interferes with another Team Member's work performance or which creates an intimidating, offensive, or hostile working environment." Gamboa was then given a list of several remedial actions to correct the problem, including training in sexual harassment awareness and diversity classes, and notified that the absence of improvement could lead to possible termination. Gamboa declined to sign the reprimand.
In July 2014, without discussing it with his supervisors, Gamboa created a survey asking the person taking the survey whether any of his actions had offended them or if they felt harassed by him and included a signature line for anyone filling it out. He distributed this survey to two summer employees asking for them to review the content and check for spelling and grammar mistakes.
One or both of the employees reported the survey to management. According to the testimony of Norman, the employees felt very uncomfortable that Gamboa had singled them out and were concerned that he knew they had complained about his behavior the previous year.
Upon becoming aware of Gamboa's actions, management viewed Gamboa's actions as an attempt to discover the identities of the persons who had previously complained about his behavior and reported it. On August 2, 2014, Gamboa was given a letter advising him that they viewed the unauthorized survey, targeted to certain team members, as a repeat of the behavior of the previous year creating a hostile working environment and terminated his employment immediately.
Gamboa then filed for unemployment benefits. On August 26, 2014, he was issued a Notice of Determination denying his request, finding that his discharge was for misconduct connected with his work, and that he had violated or disregarded the standard of behavior his employer had a right to expect. On December 9, 2014, Gamboa appealed and received a hearing on February 26, 2015. On February 27, 2015, the referee denied his request on the grounds that his discharge was for misconduct and harassing behavior. The referee found that Gamboa's survey was an attempt to gather the names of co-workers who had previously filed a complaint against him and was a hostile act toward those employees. Gamboa then filed an appeal seeking review by the Kentucky Unemployment Insurance Commission. On April 21, 2015, the Commission issued a final order affirming the decision of the referee. On May 4, 2015, Gamboa filed an appeal from the final order of the Commission in the Jefferson Circuit Court. On February 25, 2016, the court affirmed the decision of the Commission.
On March 22, 2016, Gamboa filed this appeal of the order of the circuit court.
STANDARD OF REVIEW
In reviewing a decision from the circuit court of an appeal from the Kentucky Unemployment Insurance Commission, we review the circuit court decision to determine whether the court's findings are clearly erroneous. Runner v. Com., 323 S.W.3d 7, 10 (Ky. App. 2010). If the record contains substantial evidence supporting the agency's decision, the court will defer to the administrative agency, even if conflicting evidence is present. Id. at 10.
ANALYSIS
Gamboa alleges several errors on appeal. First, Gamboa argues that the order of the court was clearly erroneous in finding that the final order of the Commission was supported by substantial evidence. We disagree.
Gamboa alleges there is no proof to support his employer's claim that the survey he distributed to the two female employees was an attempt to discover whether they were the ones who filed a harassment claim against him the previous year. To the contrary, the Order Affirming issued by the Commission stated:
One or both of the female summer camp counselors reported the survey to management. Management viewed the claimant's survey as an attempt to discover the identities of the female summer camp counselors who had previously reported the claimant to management.
The court, in upholding the Commission ruling, pointed to the fact that the survey which Gamboa had created without authorization from his supervisor asked if he had offended or sexually harassed the person taking the survey and included a signature line. He gave the survey to the two female coworkers who had worked there the previous year, and they were the only two people given the survey. Both actions support the Commission's ruling, upheld by the court, that Gamboa was trying to find out who had previously filed a complaint against him.
Gamboa then argues that the survey was not a repeat of the behavior he had been counseled on the previous year. However, the record supports that the rule quoted verbatim in his reprimand emphasized that his behavior was inappropriate. He was directed to review the employer's harassment policy, become more aware of how his behavior is perceived by team members, and to attend a sexual harassment awareness and diversity class. Both the Commission ruling and the court order referenced the reprimand language, making it explicitly clear to Gamboa in his first reprimand what constituted acceptable behavior in the workplace. Thus, we find no error in the court's order upholding the Commission ruling.
Gamboa next argues that the conduct for which he was terminated does not rise to the level of "misconduct" under Kentucky Revised Statutes (KRS) 341.370(6).
KRS 341.370(6) states in relevant part:
"Discharge for misconduct" as used in this section shall include but not be limited to, separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge; knowing violation of a reasonable and uniformly enforced rule of an employer . . . .
(Emphasis added).
Gamboa relied upon Douthitt v. Kentucky Unemployment Ins. Comm'n 676 S.W.2d 472 (Ky. App. 1984). However, we find Douthitt unpersuasive. Douthitt rested on the fact that an employer's rule requiring its employee to submit to a polygraph was unreasonable in that it required the employee to waive a constitutional right of self-incrimination. Gamboa's inappropriate behavior was based upon his ignoring his employer's rule of workplace behavior, which was both reasonable and appropriate. He was notified in the reprimand of the rule he had violated, counseled as to the misconduct, and given remedial actions to address his inappropriate behavior. The Commission's order found that his second violation of his employer's rule concerning appropriate workplace conduct was both intentional and willful. The court so concluded, and we agree.
Finally, Gamboa claims that he was only reprimanded because he had alleged discrimination prior to the referee's decision. However, he produces no evidence of any such allegations prior to the notation of it in the letter from Joanna E. Haas, Executive Director, to him dated October 10, 2013, after the referee issued his decision. Neither the Commission nor the court found his argument persuasive. The record is devoid of any evidence that his allegation had been previously raised or that it had any bearing on the actions of the Commission or the court. Therefore, we find no error in the court's ruling upholding the Commission.
CONCLUSION
Based upon the foregoing, we do not find that the Jefferson Circuit Court's Order of February 25, 2016, was clearly erroneous, and therefore we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Philip C. Kimball
Louisville, Kentucky BRIEF FOR APPELLEES: Amy F. Howard
Frankfort, Kentucky