Opinion
NO. 2012-CA-000036-MR
06-21-2013
DONALD WHITE APPELLANT v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION; AND ROYCE CAMPBELL & SONS, LLC APPELLEES
BRIEFS FOR APPELLANT: M. Gail Wilson Jamestown, Kentucky BRIEF FOR APPELLEE, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION: Patrick B. Shirley Frankfort, Kentucky NO BRIEF FOR APPELLEE, ROYCE CAMPBELL & SONS, LLC
NOT TO BE PUBLISHED
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 11-CI-00029
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Donald White appeals from the circuit court's order affirming the finding by the Kentucky Unemployment Insurance Commission that he had been discharged for misconduct. On appeal, White argues there was insufficient evidence to support the Commission's finding, that the Commission incorrectly applied the law to the facts, and that the circuit court erroneously affirmed. Having reviewed the record and considered the parties' arguments, we affirm.
FACTS
White worked for Royce Campbell & Sons, LLC as a truck driver from 1993 until he was discharged on July 24, 2010. Following his termination, White applied for unemployment compensation benefits. The Division of Unemployment Insurance found White was not discharged for misconduct and therefore not disqualified from receiving benefits. Campbell appealed that determination and requested an evidentiary hearing before a referee. The referee found in favor of White, and Campbell appealed to the Commission. The Commission, in a divided decision, reversed the referee and ordered White to repay the benefits he had received. White then filed a complaint in circuit court, appealing from the Commission's decision. The circuit court affirmed the Commission, and White filed this appeal. Because one of the primary issues on appeal is whether substantial evidence supported the Commission's decision, we summarize that evidence below.
In the summer of 2010, personnel from the Kentucky Department of Transportation conducted an audit of White's log books. The audit revealed that, on thirty-five occasions in June and July 2010, White had recorded in his log book that he was off duty during periods when he was actually driving. As a result of the audit, Campbell's Department of Transportation rating was reduced from satisfactory to conditional, which caused Campbell to lose business.
White testified that he had received training from Campbell regarding the manner in which he must keep his log book. According to White, the trainer advised him that he was not required to record trips of less than 100 miles; therefore, he did not record those trips. However, White also testified that the training was "just more junk than I can keep up with. I had such a headache trying to keep all this stuff straight." White also testified that he was first advised that he was not keeping his log book correctly the day he was terminated from employment. He asserted that if he had known there was a problem, he would have corrected it.
Through written statements and testimony from its office manager, Campbell presented evidence that White had been told repeatedly about the necessity for keeping accurate records. According to the office manager, even though White knew it was his responsibility to keep accurate log books, he simply would not comply. The office manager admitted that Campbell had not issued any written warnings to White, and she did not have any records regarding when verbal warnings had been given.
The referee concluded White had not kept his log book accurately. However, the referee also found White had not been advised to change the way he kept his log book and he had not been given any written warning about his deficiencies. Therefore, the referee concluded as follows.
[White's] acts constituted nothing more than an isolated case of poor judgment and unintentional negligence. While such may well be a basis for terminating his employment, it falls far short of the type of conduct required under the statute in forfeiting benefits as the claimant was not informed how to correctly report his short trips prior to the audit that resulted in his separation. [White] was discharged for reasons other than misconduct connected with the work and is not disqualified.
Campbell appealed this decision to the Commission, a majority of whose members voted to reverse the referee. In doing so, the majority members reached the following conclusion, contrary to that of the referee.
[T]he weight of the evidence in the record supports a finding that, at the very least, claimant's continuing failure to consistently perform his job duties adequately or accurately was not an isolated instance of negligence. Any assertions by claimant to the contrary lack credibility and are not persuasive, particularly in light of his admissions against self-interest and inconsistent testimony. Claimant acknowledges knowing his job duties and knew the importance of being vigilant and accurate in performing his duties, in order to comply with applicable laws, rules and regulations and to avoid damage to the employer's reputation or client base. Despite having at times shown that he could do the work, claimant failed to competently perform his work or did it improperly on thirty-five (35) occasions during the period audited. Given the nature of the employer's highly regulated business, claimant's conduct in this regard amounts to negligence of such degree or recurrence as to qualify as misconduct under the applicable case law definition . . . .
Therefore, the employer has met its burden of proof, . . . and the employer must prevail. The claimant was discharged from the employment for reasons of misconduct connected with the work, as defined by law,
for Kentucky unemployment insurance purposes, and is disqualified from receiving benefits.
White then filed a complaint in circuit court arguing, as he does here, that the Commission's decision was not supported by substantial evidence and that the Commission did not follow the applicable law. The circuit court reviewed the evidence and the arguments of the parties and affirmed the Commission. In doing so, the court held that "[s]ubstantial evidence of probative value was received by the Commission supporting its position [and that] the Commission applied the correct law in reaching its conclusion." It is from this order that White now appeals.
Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Ins. Com'n, 437 S.W.2d 775, 778 (Ky. 1969). Substantial evidence is "evidence which has sufficient probative value to induce conviction in the minds of reasonable people." Kentucky Unemployment Ins. Com'n v. Cecil, 381 S.W.3d 238, 245 (Ky. 2012). "If the reviewing court concludes the rule of law was correctly applied to facts supported by substantial evidence, the final order of the agency must be affirmed." Id. at 246.
STANDARD OF REVIEW
Judicial review of an award of the Unemployment Insurance Commission is governed by the general rule applicable to administrative actions. If the findings of fact are supported by substantial evidence of probative value, then they must be accepted as binding and it must then be determined whether or not the administrative agency has applied the correct rule of law to the facts so found.
ANALYSIS
White argues that his conduct did not amount to misconduct sufficient to warrant denial of benefits. We disagree.
The parties agree that an employee discharged for "misconduct" is not entitled to benefits. Kentucky Revised Statutes (KRS) 341.370(1)(b). Misconduct is defined by statute as:
[S]eparation 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; damaging the employer's property through gross negligence; refusing to obey reasonable instructions; reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working hours; conduct endangering safety of self or co-workers; and incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction, which results in missing at least five (5) days work.KRS 341.370(6).
When interpreting the statute, the courts of the Commonwealth have adopted and applied the following common-law definition of misconduct from Boynton Cab Company v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941):
[T]he term "misconduct," . . . is limited to conduct evincing such wilful [sic] or 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 in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or toSee Douthitt v. Kentucky Unemployment Ins. Com'n, 676 S.W.2d 472, 474 (Ky. App. 1984); Holbrook v. Kentucky Unemployment Ins. Com'n, 290 S.W.3d 81, 87 (Ky. App. 2009).
show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.
White argues there is no evidence in the record that his behavior evinced "any wrongful intent, evil design or . . . intentional and substantial disregard" of Campbell's interests. According to White, his conduct amounted to nothing more than "inefficient" record keeping, which he did not know was incorrect and which he was not given the opportunity to remedy. The evidence suggests otherwise.
White testified he had never been previously warned about deficiencies in his log book; however, Campbell presented evidence that he had been repeatedly warned about those deficiencies but refused to change. White testified he had been told he was not required to record trips of less than 100 miles, but Campbell presented evidence to the contrary.
It is for the Commission to judge the credibility of the witnesses, the weight to be given the evidence, and what inferences to draw from the evidence. See Thompson v. Kentucky Unemployment Ins. Com'n, 85 S.W.3d 621, 624 (Ky. App. 2002). As it is empowered and obligated to do, the Commission considered all the evidence, weighing the credibility of conflicting evidence, and found Campbell's evidence more credible, and therefore more persuasive, than White's. That evidence is sufficient to show that White refused to obey reasonable instructions from Campbell, disregarded standards of behavior that Campbell had a right to expect, and acted with such carelessness as to show an intentional and substantial disregard of Campbell's interests and his duties to Campbell. Therefore, the Commission's finding that White's failure to keep accurate records amounted to "negligence of such degree or recurrence as to qualify as misconduct under the applicable case law definition" is supported by the evidence and is a correct application of the rule of law to the facts.
CONCLUSION
Because the Commission's findings were supported by evidence of substance and it correctly applied the law to the facts, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: M. Gail Wilson
Jamestown, Kentucky
BRIEF FOR APPELLEE,
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION:
Patrick B. Shirley
Frankfort, Kentucky
NO BRIEF FOR APPELLEE,
ROYCE CAMPBELL & SONS, LLC