Opinion
NO. 2014-CA-001334-MR
02-05-2016
BETTY G. RUNNER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND KENTUCKY PERSONNEL BOARD APPELLEES
BRIEF FOR APPELLANT: Betty Runner, Pro Se Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: D. Brent Irvin Deputy General Counsel Frankfort, Kentucky BRIEF FOR APPELLEE KENTUCKY PERSONNEL BOARD: Boyce Andrew Crocker General Counsel Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 11-CI-00234 OPINION
AFFIRMING BEFORE: COMBS, J. LAMBERT, AND VANMETER, JUDGES. LAMBERT, J., JUDGE: Betty Runner appeals, pro se, from the Franklin Circuit Court's opinion and order affirming the Kentucky Personnel Board's final order dismissing Runner's appeal. For the reasons stated herein, we affirm the order of the Franklin Circuit Court.
In March 2008, Runner was dismissed from her position at the Cabinet for Health and Family Services (the Cabinet). The Cabinet alleged that Runner committed misconduct in her position. Since her dismissal in March 2008, Runner has filed approximately six appeals with courts and administrative bodies both within the Commonwealth and the United States. Runner filed an appeal with the Kentucky Personnel Board in May 2008, alleging that she had been dismissed on grounds of race, age, political and sex discrimination. She also asserted claims of retaliation and harassment. The Personnel Board dismissed this appeal in December 2009, and the Board dismissed Runner's other appeals related to the other adverse personnel actions taken by the Cabinet against her during 2007 while she was still employed by the Cabinet. Runner did not appeal the Personnel Board's December 2009 decision to a higher court.
Runner also brought another claim that arose out of her termination for misconduct; this claim involved the denial of her unemployment benefits. The Kentucky Unemployment Insurance Division (the Division) denied her claim for benefits on April 4, 2008. The Kentucky Unemployment Insurance Commission affirmed the Division's denial of benefits in November 2008. Runner then filed an original action in Jefferson Circuit Court on December 8, 2008, seeking review of the Commission's denial. The circuit court affirmed the Commission's denial, and Runner then appealed to this Court, which ultimately affirmed the circuit court's decision. This court held that the Cabinet had dismissed Runner for her own misconduct, and the circuit court properly determined that she was not entitled to unemployment insurance benefits.
Runner then filed suit in the U.S. Federal Court and claimed Title VII violations. The federal court found that Runner had failed to exhaust her administrative remedies and dismissed her claims.
In May 2010, Runner read an article in the newspaper that reported that the Personnel Board had ordered the Cabinet to reinstate several employees that it had dismissed in 2008 and 2009. After reading this article, Runner filed the present case at issue in this appeal on May 31, 2010. The newspaper article that Runner read described how the former employees had alleged that a Cabinet official, acting without proper authorization, signed their dismissal letters in violation of Kentucky Revised Statutes (KRS) 18A.005(1). That statute provides that dismissal letters may be signed only by the appointing authority (i.e., the agency head) or an official to whom the appointing authority has delegated such authority and filed evidence of such authorization with the Personnel Cabinet. Runner alleged in the present claim that an unauthorized person had signed her dismissal letter, and she was therefore entitled to be reinstated to her former position with back pay. After hearing testimony, the hearing officer issued its findings of fact, conclusions of law, and recommended order on November 19, 2010. Therein, he dismissed Runner's appeal, finding that it was barred by res judicata. The Personnel Board adopted the Hearing Officer's report.
Runner then appealed the order to the Franklin Circuit Court on February 9, 2011. After the submission of briefs, the court affirmed the Personnel Board. The circuit court held the Personnel Board did not err by dismissing Runner's 2010 administrative appeal based on the one-year statute of limitations. The circuit court held that it could have alternatively affirmed under the doctrine of res judicata, but found that the statute of limitations was the more appropriate principle that barred Runner's 2010 Personnel Board appeal. This appeal now follows.
Initially we note that Runner's brief to this Court is hard to follow and her arguments are not developed or supported with citations to the record. The Cabinet argues that Runner's brief is conclusory and lacks meaningful, developed arguments. We agree. In her brief, Runner argues, "The Franklin Circuit Court misperceived the issues before that Court; misapplied law failed to apply and improperly applied the doctrine of Res Judicata, and Statute of Limitation." Runner does not make any argument to this Court that support her request for reversal of the judgment below. The Cabinet urges this Court to affirm the circuit court's judgment or dismiss Runner's appeal due to her failure to follow the rules of Civil Procedure. The Personnel Board also urges this Court to affirm the circuit court.
In Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. 2010), the Kentucky Supreme Court articulated an appellate court's course of action when an appellant fails to follow the civil rules for appellate procedure and briefing. The court can choose from one of three options: (1) ignore the deficiency and proceed with the review; (2) strike the brief or its offending portions, CR 76.12(8)(a); or (3) review the issues raised in the brief for manifest injustice only. The civil rules of appellate practice apply to pro se litigants and attorneys alike. In Hallis, the Court found the pro se brief filed by the appellant to be deficient.
We will review Runner's claims for manifest injustice. Manifest injustice occurs and warrants reversal if an appellant can show that an error was so flagrant that it deprives him or her of due process of law or that absent the error, there is a strong probability of a different result in the outcome of the case. Martin v. Commonwealth., 207 S.W.3d 1, 3 (Ky. 2006), as modified (May 23, 2006).
We agree with the Cabinet and the Personnel Board that Runner's claims do not amount to manifest injustice and do not require reversal of the judgment below. Runner argues that the circuit court "misperceived the issues before that Court; missaplied law failed to apply and improperly applied the doctrine of Res Judicata, and Statute of Limitation." Runner also implies, but offers no proof, that the Personnel Board or circuit court applied the Statute of Limitations in an unfair manner due to some racial animus or violated some unarticulated due process right. She writes, "Appellant Runners [sic] filed a timely motion to sustain her appeal, but the hearing Officer Just [sic] dismissed Runner's appeal. Whether any constitutional right was violated due to Runner's lack of due process [sic][.]" This does not explain to this Court how the Personnel Board or its hearing officer allegedly erred. Other than stating "res judicata is a question of law subject to de novo review," Runner does not explain how the circuit court erred. As the Cabinet and Personnel Board point out, Runner does not cite any case law that would show how the circuit court erred in its review of the Personnel Board's application of the statute of limitations or the finality principles that apply when a litigant brings the same cause of action over and over again.
Reviewing Ms. Runner's claim that the circuit court erred when it determined her appeal was barred by the statute of limitations, we find no error, much less manifest injustice that would justify reversal by this Court.
In Dept. for Natural Res & Envtl. Prot. v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 473 (Ky. 1973), the Kentucky Supreme Court described that the Personnel Board, like all administrative agencies, is a creature of statute. Agencies are not permitted to alter statutory definitions or enlarge their powers by regulation or custom. Sladen v. Shawk, 815 S.W.2d 404, 405-06 (Ky. App. 1991). Any reasonable doubt as to an agency's exercise of power is to be resolved against its existence. United Sign Ltd. v. Commonwealth, 44 S.W.3d 794, 798 (Ky. App. 2001) (citation omitted). A state employee's right to appeal an agency's action to the Personnel Board is a legislative creation and is "limited by legislative conditions that require strict compliance." Com., Dept. of Revenue, Fin & Admin. Cabinet v. McDonald, 304 S.W.3d 62, 67 (Ky. App. 2010).
The circuit court found that the relevant statute of limitations in this case is found in the Personnel Board's enabling statute. The court stated:
A state employee may appeal a variety of adverse personnel actions to the Personnel Board. See KRS § 18A.005(24). A dismissal is a classic example of such a penalization. See KRS §18A.005(24). A state employee typically has sixty days from the time that she has received notice of her dismissal in which to file an appeal to the Personnel Board. KRS §18A.095(7)(c). However, an employee who is not given written notice of a penalization may bring an appeal before the Board within one year of the date on which the employee should have reasonably known of the penalization. KRS §18A.095(29). The Personnel Board provides further that "an appeal...shall be filed with the Personnel Board...within the time period set forth in KRS 18A.095 after receiving notification of the penalization or after becoming aware of the penalization through the exercise of due diligence." 101 KAR 1:365 §(3)(1). The implication here is clear and simple: even under the most generous standard, the law requires that an employee must bring an appeal before the Board within one year of the penalization. Outside of one year, the Board cannot hear the employee's appeal.
The Petitioner filed her present appeal well beyond the one-year limit. The Cabinet dismissed the Petitioner on March 20, 2008. However, the Petitioner did not file her appeal upon which the instant action is based with the Personnel Board until May 31, 2010, over two years after her dismissal. The Petitioner argues that she had only become aware of her grievance after reading the newspaper article describing how [the] Personnel Board ordered the reinstatement of several former employees whom the Cabinet dismissed or demoted because a Cabinet official lacking proper authorization had signed their dismissal letters in violation of KRS §18A.005(1). However, all of the successful appellants had managed to file their appeals with the Personnel Board within the sixty-day period prescribed by KRS § 18A.095(7)(c).
Contrary to the Petitioner's arguments, the statute of limitations did not begin to run when she first read the newspaper article on May 31, 2010. Rather, it began running with the notice of her dismissal, which the
Petitioner received from the Cabinet on March 20, 2008. This places the Petitioner squarely within the requirement of KRS §18A.095(7)(c) to file an appeal of her dismissal before the Personnel Board within sixty days. Indeed, on May 13, 2008, she did just that. Regrettably, the Petitioner's appeal alleged a variety of claims including wrongful dismissal; race, sex, age, and political discrimination; and retaliation, but Petitioner did not address the dismissal letter signatory issue. See Runner v. Cab. For Health and Family Serv., 2009 WL 5150276 KY PB (App. Nos. 2007-114, 2007-160, 2007-161, 2007-381, 2008-086, and 2008-147 Dec. 16, 2009). The Personnel Cabinet's regulations require the Petitioner to exercise due diligence to discover the penalization. 101 KAR 1:365 §(3)(1). We cannot overlook the fact that at least five other Appellants with the same allegation had managed to timely file their appeals with the Personnel Board. The Personnel Board dismissed her initial appeal on December 16, 2009, finding no evidence of discrimination or retaliation, while instead finding more than enough evidence to justify her dismissal. Thus, with its December 2009 decision, the Personnel Board had settled the matter of her dismissal and consequently, the Board was quite correct to dismiss her present appeal res judicata. However, we find that the statute of limitations is a more insurmountable barrier, if only to make it as clear as possible to the Petitioner that the law—specifically KRS §§ 18A.095(7)(c) and (29)—bars this Court, and any other court or administrative body, from hearing any and all claims on the merits against the Cabinet brought by the Petitioner regarding her dismissal not filed before the Personnel Board, within, at most, one year of her dismissal, regardless of how meritorious such claims appear.(Emphasis in original).
A review of the record and the circuit court's reasoning indicates that a manifest injustice has not occurred in this case. Significant constitutional and statutory limitations are imposed on the Personnel Board's authority to grant former state employees compensation except in consideration for state service. Furthermore, strict scrutiny is given to the Personnel Board to grant former civil service employees any relief. We conclude that neither the Personnel Board nor the Franklin Circuit Court erred when they held Runner's 2010 appeal to the Personnel Board was barred by the applicable one-year statute of limitations for a state employee to appeal from his/her dismissal. While Runner claims that she only found out about her claims in 2010, the evidence of record suggests that other claimants knew of the allegations and filed successful claims within the statute of limitations. Accordingly, we cannot say that Runner exercised due diligence, and her claims were appropriately denied as barred by the statute of limitations.
Finding no manifest injustice, we affirm the July 16, 2014, opinion and order of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Betty Runner, Pro Se
Louisville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: D. Brent Irvin
Deputy General Counsel
Frankfort, Kentucky BRIEF FOR APPELLEE
KENTUCKY PERSONNEL BOARD: Boyce Andrew Crocker
General Counsel
Frankfort, Kentucky