Opinion
NO. 2012-CA-002009-MR
06-06-2014
VIRGINIA S. YOUNG APPELLANT v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, OFFICE OF LEGAL AND LEGISLATIVE SERVICES; AND FIRST SECURITY BANK APPELLEES
BRIEFS FOR APPELLANT: Virginia S. Young, Pro Se Frankfort, Kentucky BRIEF FOR APPELLEE, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION: Patrick Shirley Frankfort, Kentucky BRIEF FOR APPELLEE, FIRST SECURITY BANK: Crystal Spivey Wildeman Evansville, Indiana
NOT TO BE PUBLISHED
APPEAL FROM DAVIEES CIRCUIT COURT
HONORABLE JOSEPH W. CASTLEN, III, JUDGE
ACTION NO. 11-CI-01523
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND VANMETER, JUDGES. CAPERTON, JUDGE: The Appellant, Virginia S. Young, pro se, appeals the October 10, 2011, order of the Kentucky Unemployment Insurance Commission (hereinafter "Commission") affirming as modified the July 13, 2011, the Referee Decision, which reversed the Notice of Determination and held that Young was discharged for misconduct related to employment and therefore was disqualified from receiving unemployment benefits.
Young filed a claim for unemployment benefits on March 7, 2010. On January 11, 2011, the Division of Unemployment Insurance issued a Notice of Determination holding that Young was not discharged for misconduct connected with the work and was therefore qualified to receive unemployment insurance benefits.
On January 19, 2011, First Security Bank appealed the Notice of Determination to a referee, who conducted an evidentiary hearing on March 28, 2011, and May 19, 2011. The referee rendered a Referee Decision on July 13, 2011, which reversed the Notice of Determination and held that Young was in fact discharged for misconduct connected to the employment and, therefore, was disqualified from receiving unemployment insurance benefits.
On July 27, 2011, Young appealed the Referee's Decision to the Commission. In its October 10, 2011, order, the Commission issued the following findings of fact:
Kentucky Unemployment Insurance Commission, Order Affirming as Modified, October 10, 2011.Claimant began working for the captioned employer [First Security] on September 20, 2010; she was employed in Owensboro, Daviess County, Kentucky, full-time as a customer support specialist. Claimant was scheduled for normal business hours, with a one-hour lunch period from 11 a.m. to noon. The employer's attendance rules, known to claimant, provide that tardiness will not be tolerated.
Claimant was tardy returning from lunch on September 30, 2010; October 4, 8, 15, 19, 22, 26, and 29, 2010; November 1, 5, 16, 17, 18 and 19, 2010; and December
1, 8, and 9, 2010. She cannot recall any reason for her tardiness on these dates. Claimant was tardy returning from lunch on October 6, 14 and 18, 2010; and November 3, 8, and 15, 2010. Claimant cannot recall any reason(s) for her tardiness on these dates, but believes, based upon the recollection provided by Michael Young (ex-husband), that she may have been meeting with an attorney or otherwise dealing with issues involving her sister's nursing home care. Claimant was tardy returning from lunch on December 10, 2012. Upon her return to the workplace, she was discharged by Rhonda Wells (human resource manager) for excessive tardiness in violation of the employer's attendance rules.Claimant was frequently tardy, but worked after her shift ended to make up her work. Jona Moore (customer support supervisor) had allowed claimant to make up time missed due to excused absences, but had not approved claimant to make up time missed due to unexcused tardiness. Claimant was counseled concerning excessive tardiness on November 22, 2010, and December 1, 2010; on the latter occasion, she assured the employer that "my time will not ever be an issue again." Shortly after giving this assurance, claimant was tardy returning from lunch on three (3) consecutive days. When advised of her discharge for excessive absenteeism, claimant did not indicate any objection to the stated basis for the separation.
In her brief to this Court, Young disputes certain findings of the Commission concerning her absenteeism claiming that First Security excused her absences and allowed her to work "off the books" in order to make up for lateness and absences. This is a contention with which the employer disagrees, and instead asserts that this was allowed only on one or two occasions for excused absences.
On the basis of the foregoing facts, the Commission concluded that Young was discharged for misconduct connected with her employment. As a result, the Commission ruled that Young was disqualified from receiving unemployment insurance benefits. Further, the Commission found that Young had received benefits for the weekends ending December 25, 2010, and January 1, 2011, and the twenty-six consecutive week period beginning January 30, 2011, through August 2011. The Commission found that Young was required to repay the amount of $9,300.00 to the Division, which had been paid to her for the two week period ending January 1, 2011, and the twenty consecutive week period ending June 25, 2011. The Commission found that benefits paid for the six consecutive week period ending August 6, 2011, constituted an overpayment of $2,075.00, which was the result of office error and could only be recovered by specified deduction from future benefits payable pursuant to KRS 341.415(6).
Young did not file a motion for reconsideration but instead filed a complaint with the circuit court on October 31, 2011, seeking judicial review of the Commission's order. On October 25, 2012, the circuit court entered its findings of fact, conclusions and order that affirmed the order of the Commission. It is from that order that Young now appeals to this Court.
Prior to reviewing the arguments of the parties, we note that our review of a decision of the Commission is limited to a determination of whether the Commission's findings of fact are supported by substantial evidence, and whether the agency correctly applied the law to the facts. Kentucky Unemployment Insurance Commission v. Duro Bag Manufacturing Co., 250 S.W.3d 351, 353 (Ky. App. 2008) (abrogated on other grounds by Kentucky Unemployment Insurance Commission v. Cecil, 381 S.W.3d 238 (Ky. 2012)). Further, a reviewing court must accept the Commission's findings of fact as binding, even where there is conflicting evidence in the record. Urella v. Kentucky Board of Medical Licensure, 939 S.W.2d 869 (Ky. 1997); Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981). It is the exclusive province of the Commission to determine the credibility of the witnesses and the weight of the evidence. Burch v. Taylor Drug Store, Inc., 965 S.W.2d 830, 834 (Ky. App. 1998)(abrogated on other grounds by Kentucky Unemployment Insurance Commission v. Cecil, 381 S.W.3d 238 (Ky. 2012). We review this matter with these standards in mind.
Young argues that the Commission twice refused to provide her with a copy of the official transcript and record below, and that this case turns on unverified evidence that she argues was wrongfully allowed into the record via the testimony of Human Resource Manager Rhonda Wells, which Young states was based on documents not seen or tendered as required by 787 KAR 1:110. Young asserts that she was not provided with evidence that she should have received, and that the employer's assertions of her tardiness were based on non-existent or "magic" documents that no one besides the employer has had access to. Both the employer and the Commission disagree, asserting that sufficient evidence existed in the record to support the finding of both the Commission and the circuit court that Young did not qualify for unemployment benefits.
In addressing the arguments before us, we note that KRS 341.370(1) provides, in pertinent part, that:
A worker shall be disqualified from receiving benefits for the duration of any unemployment, with respect to which ... (b)He has been discharged for misconduct ...KRS 341.370(1)(emphasis added).
'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; unsatisfactory attendance if the worker cannot show good cause for absences or tardiness ...
Specifically concerning the issue of work absences, this Court has previously quoted the Commission in stating that:
Every employer has a legitimate interest in maintaining a full work crew. When a worker is absent from scheduled work, the employer must of necessity rearrange the available personnel in order to compensate for the absent worker. When such absences from work are unreported or are for less than compelling reasons, they constitute misconduct.Kentucky Unemployment Ins. Comm'n v. Stirrat, 688 S.W.2d 750, 751 (Ky. App. 1984).
We note that upon review of all of the evidence submitted, the Referee, the Commission, and the circuit court all determined that Young's termination was supported by substantial evidence and was proper according to the law. Upon review of the record, the arguments of the parties, and the applicable law, we are compelled to agree.
The evidence reveals that Young was informed of the rules regarding tardiness upon acceptance of employment with First Security and that she was tardy on approximately 24 occasions as of December 10, 2010, the date of her discharge. The record further reveals that Young was terminated as a result of these frequent attendance issues, which she herself acknowledged, and which continued even despite a counseling session concerning same. Indeed, the record indicates that following a counseling session and a warning concerning her tardiness, Young was tardy three additional times before finally being terminated. We believe that this constitutes substantial evidence in support of the decision denying unemployment benefits to Young, and we affirm.
In so finding, we disagree with Young's assertion that the judgment of the court below should be reversed because 787 KAR 1:110 §§1(4)(f)1 and 2 was violated below. Those regulations state:
(f)1. Parties to a teleconference hearing who wish to introduce documents or written materials into the record at the referee hearing shall provide copies of the documents to the referee and the opposing party prior to the hearing.Upon review, we are in agreement with the circuit court that the record simply does not support Young's position. A review of the record indicates that the Commission filed the administrative record, including all transcripts in this case on November 28, 2011. The court clerk sent confirmation to the Commission that these documents were received and filed, a fact which Young was notified of by letter dated January 20, 2012. Indeed, we note that Young's brief to this Court includes several references to the record and to hearing transcripts, and that the court below granted Young an extension to file her brief in this matter such that she could review the transcript which she represented had previously not been provided to her. While Young asserts that there is a "magic" missing document upon which First Security based its unmerited assertions of tardiness, a review of the record indicates that it clearly includes documentation that Young was tardy on three additional occasions after having previously been warned of tardiness. Accordingly, we find this argument to be without merit.
2.Failure to provide both the referee and the opposing party with copies of the evidence shall result in its being excluded from the record.
In so finding we briefly address Young's implicit argument that the evidence relied upon by the Commission was "hearsay." We find this argument to be without merit, as hearsay is admissible in administrative proceedings. Perkins v. Stewart, 799 S.W.2d 48, 51 (Ky. App. 1990).
We are also unpersuaded by any assertions made by Young that her misconduct must have been "willful and wanton" in order to preclude her from receiving unemployment benefits Our Kentucky Supreme Court recently addressed this very issue in Kentucky Unemployment Insurance Commission v. Cecil, 381 S.W.3d 238 (Ky. 2012), wherein it was stated that, "[a]ccordingly, we hold that a willful or wanton, or bad faith finding is not an additional requirement when the employee is discharged for conduct specifically identified in KRS 341.370(6)."
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Wherefore, for the foregoing reasons, we hereby affirm the October 10, 2011, order of the Kentucky Unemployment Insurance Commission (hereinafter "Commission") affirming as modified the July 13, 2011, Referee Decision, which reversed the Notice of Determination and held that Young was discharged for misconduct related to employment and therefore was disqualified from receiving unemployment benefits.
ALL CONCUR. BRIEFS FOR APPELLANT: Virginia S. Young, Pro Se
Frankfort, Kentucky
BRIEF FOR APPELLEE,
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION:
Patrick Shirley
Frankfort, Kentucky
BRIEF FOR APPELLEE, FIRST
SECURITY BANK:
Crystal Spivey Wildeman
Evansville, Indiana