Opinion
No. 2008-CA-000573-MR.
February 6, 2009. NOT TO BE PUBLISHED.
Appeal from Franklin Circuit Court, Honorable Phillip J. Shepherd, Judge, Action No. 07-CI-01043.
C. David Emerson, Lexington, Kentucky, Brief for Appellant.
Andrew Seth Hartley, Frankfort, Kentucky, Brief for Appellees.
OPINION AFFIRMING
William Wolejsza was a classified employee with the Governor's Office for Local Development (GOLD). He was dismissed from his employment and seeks this review. He requests this Court to determine whether the dismissal letter gave sufficient notice so as to allow the introduction of prior evidence from his personnel file; whether the policies contained within the employee handbook were sufficient to give him legal notice of what would be deemed unacceptable behavior; whether the allegation of a violation was sufficient to meet the specificity requirements of the statutes; whether the Personnel Board has created its own standards absent notice; and whether termination was an appropriate penalty. After our review of the matter, we affirm the judgment of the Franklin Circuit court.
Wolejsza was notified by letter dated September 21, 2005, of GOLD's intent to terminate his employment. A hearing was held, and the appointing authority issued a letter of dismissal on October 7, 2005. Wolejsza filed an appeal with the Personnel Board, and a hearing was held on September 6, 2006. The hearing officer determined from the submitted evidence that, while Wolejsza's behavior was not entirely proper, it did not violate the sexual harassment policy from the Kentucky Personnel Employee Handbook. The hearing officer recommended a fifteen-day suspension for the behavior.
GOLD then filed exceptions and requested oral argument before the entire Personnel Board. GOLD argued it should not be required to specify all of the behavior complained of in order to show a system of progressive discipline.
The Personnel Board remanded the matter back to the hearing officer, where GOLD was then allowed to introduce additional evidence. The hearing officer entered a second amended order on April 5, 2007, and again recommended a fifteen-day suspension. That order specifically noted that the additional evidence was not considered because neither the letter of intent to dismiss nor the actual dismissal letter alleged other violations or listed progressive discipline.
Again, GOLD filed exceptions and requested oral argument before the entire Personnel Board. On June 27, 2007, the Personnel Board issued an order rejecting the hearing officer's conclusions and determined that the incident of September 21, 2005, was not only improper behavior but did violate the sexual harassment policy. The Personnel Board upheld the dismissal. Wolejsza sought review from the Franklin Circuit Court, which affirmed the Personnel Board's decision. This appeal followed.
In such appeals, our standard of review is limited to a determination of "whether the agency's decision is supported by substantial evidence." McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky.App. 2003). Substantial evidence is whether there is evidence of a sufficient probative value to induce a conviction in the minds of reasonable people. Owens-Corning Fiberglass v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). We may not substitute our own judgment in place of the fact finder.
While reasonable minds may differ, as evidenced by the divergent determinations made by the hearing officer and the full Personnel Board, our review of the incident which lead up to Wolejsza's termination shows that there was sufficient evidence to support the determination of the full Personnel Board. The Personnel Board specifically made findings based on the evidence, which supported its conclusions. Likewise, we are limited in our determination of an appropriate penalty. Once we have determined that there was sufficient evidence to support the determination of the Personnel Board, we do not have the authority to modify any penalty. City of Louisville v. Milligan, 798 S.W.2d 454, 458 (Ky. 1990).
The letter of September 21, 2005, containing the intent to terminate notice, included information detailing the exact inappropriate behavior as required by the statute, as well as notice that the determination would be made "based upon review of your employment record[.]" That was sufficient notice that any other prior occurrences resulting in disciplinary action that were documented in his employment file could be used against him.
Wolejsza additionally argues that the letters failed to meet the specificity requirements of Kentucky Revised Statutes (KRS) 18A.095(3) and (8). Those sections require that a classified employee, with a status such as Wolejsza had, be notified in writing of the intent to dismiss him and that the notification must include the statutory or regulatory violation, the specific action on which the intent to dismiss is based, the date, time and place of the action, and the names of the parties involved. The letters both clearly state that Wolesjza was being dismissed because of his violation of 101 Kentucky Administrative Regulation (KAR) 1:345, § 1 and detailed an incident occurring at approximately 8:15 a.m. on Wednesday, September 21, 2005, in the office break room. It detailed the nature of the violation and listed the names of two fellow employees who were present. We believe that the letters of the September 21, 2005, incident were sufficiently specific to give Wolejsza proper notice.
The sexual harassment policy prohibits "verbal or physical conduct of a sexual nature that has the purpose of or creates a hostile or offensive working environment." It goes on to provide examples of prohibited conduct, including but "not limited to, lewd or sexually suggestive comments . . . and other verbal, graphic, or physical conduct relating to an individual's sex[.]" The notice letter to Wolejsza stated as follows:
Behavior inappropriate to the workplace.
At approximately 8:15 a.m., Wednesday, September 21, 2005 in the Governor's Office for Local Development break room, 1024 Capital Center Drive, Suite 340, Frankfort, Kentucky 40601, you made a sexually harassing comment and an inappropriate gesture to a female employee, [C.M.], in the presence of Jay T. Hall. [C.M.] was bent over reaching for a plate out of a lower cabinet. You made a spanking motion with an open hand and made the comment "Boy, that was hard to resist." This behavior is inappropriate in the workplace and a violation of the Kentucky Personnel Employee Handbook, Equal Employment Opportunity Section, Sexual Harassment Policy (http://personnel.ky.gov/info/imphb/eeo.htm).
There is no question that this act was both verbal and physical conduct of a sexual nature and it did create a hostile or offensive working environment. The behavior, including lewd and sexually suggestive comments, was verbal, graphic, and physical in nature, and was all related to the sex of the targeted subject. Any reasonable person would have been on notice of the allegation that the behavior was unacceptable and a violation of the policy. The Personnel Board was free to adopt a zero-tolerance policy toward violations. Wolejsza was provided sufficient notice of what constituted inappropriate behavior.
The judgment of the Franklin Circuit Court is affirmed.
ALL CONCUR.