Opinion
NO. 2013-CA-001293-MR
06-27-2014
EUGENE WOOLRIDGE APPELLANT v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and DHL EXPRESS APPELLEES
BRIEF FOR APPELLANT: R. Kim Vocke Covington, Kentucky BRIEF FOR APPELLEE, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION: Patrick B. Shirley Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND, JUDGE
ACTION NO. 12-CI-02350
OPINION
AFFIRMING
BEFORE: MOORE, TAYLOR, AND VANMETER, JUDGES. MOORE, JUDGE: Eugene Woolridge worked as a file retention clerk for DHL beginning November 4, 2000, at DHL's warehouse facility located in Erlanger, Kentucky, on the premises of the Northern Kentucky/Greater Cincinnati International Airport. In April, 2012, DHL's senior manager of facility maintenance, Jeremy Gardener, discovered Woolridge feeding a small flock of birds on DHL's property. At that time, Gardener verbally warned Woolridge not to encourage the bird population because birds could be sucked into the turbine engines of airplanes; they negatively affected DHL's sorting machinery; and because bird droppings created a health hazard.
On May 10 and 30, 2012, Woolridge was again observed by management feeding birds on DHL property. As a consequence, on June 1, 2012, he was called into a meeting with four of his supervisors. His supervisors explained to him, once again, why DHL did not wish to encourage the bird population on its property or at the airport. Woolridge was also issued a final written warning forbidding him from feeding or otherwise encouraging birds to gather on DHL's premises. Woolridge acknowledged, upon receiving this final written warning, that if he disobeyed this instruction his employment with DHL could be terminated.
Subsequently, on July 17, 2012, a co-worker observed Woolridge feeding birds on DHL's premises near the outdoor smoking area. The incident was documented; Woolridge's supervisors were informed; and Woolridge's employment with DHL was terminated the following day. As the basis of his termination, Woolridge was informed that he had engaged in two "unacceptable behavior[s]" enumerated and described in the DHL employee handbook as follows:
5. Insubordination and/or lack of cooperation with supervisors or co-workers relating to the performance of job duties, including refusal to, or unreasonable delay in,
carrying out instructions given by your supervisor, to the extent such conduct does not support DHL's business goals and objectives.
. . .
16. Violation of safety, security or health rules, or engaging in conduct that creates a safety, security or health hazard.
Woolridge thereafter applied for unemployment benefits, claiming that he had not been terminated for cause. DHL opposed his application. Following a hearing, a referee determined that Woolridge was not entitled to benefits because he had been terminated for cause. The Unemployment Insurance Commission later amended the referee's findings to emphasize that Woolridge had been properly terminated for cause because his conduct reflected that he had refused to obey reasonable instructions from his employer. See Kentucky Revised Statute (KRS) 341.370(6). Woolridge contested the Commission's decision in Boone Circuit Court, and the circuit court subsequently affirmed.
This appeal followed.
STANDARD OF REVIEW
In reviewing an agency decision, the reviewing court may only overturn that decision if the agency acted arbitrarily or outside the scope of its authority, if the agency applied an incorrect rule of law, or if the decision itself is not supported by substantial evidence on the record. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 300-301 (Ky. 1972). When reviewing issues of law, the court may review them de novo without any deference to the agency. Mill Street Church of Christ v. Hogan, 785 S.W.2d 263, 266 (Ky. App. 1990).
On questions of fact, the court's review is limited to an inquiry of "whether the agency's decision was supported by substantial evidence or whether the decision was arbitrary or unreasonable." Cabinet for Human Res., Interim Office of Health Planning & Certification v. Jewish Hosp. Healthcare Servs., Inc., 932 S.W.2d 388, 390 (Ky. App. 1996). Substantial evidence means "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
If there is substantial evidence in the record to support the agency's findings, the court must defer to those findings even though there is evidence to the contrary. Ky. Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981). Likewise, a court may not substitute its own judgment as to the inferences to be drawn from the evidence of record for that of the administrative agency. Railroad Comm'n v. Chesapeake & Ohio Ry., 490 S.W.2d 763, 766 (Ky. 1973). If the court finds the rule of law was applied to facts supported by substantial evidence, the final order of the agency must be affirmed. Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 302 (1963). The function of the court in administrative matters "is one of review, not of reinterpretation." Ky. Unemployment Ins. Comm,n v. King, 657 S.W.2d 250, 251 (Ky. App. 1983).
ANALYSIS
Woolridge begins by arguing that when DHL terminated his employment on July 18, 2012, for feeding the birds the previous day, it actually labored under a misapprehension. He emphasizes that in the administrative hearing he testified that he was not feeding the birds at that time. According to the version of events he related at the hearing:
[W]hat happened was I'd saw a little mouse out there by the generator. So I went to throw some crackers down for the little mouse, and all of a sudden about five or six birds came flying down. I didn't think that I was—I was feeding a mouse and birds came down by, I don't know, by accident, I guess.
Suffice it to say, however, that the Commission acted well within the bounds of its authority by disregarding Woolridge's testimony regarding his subjective intent, and by instead choosing to infer from the circumstances that Woolridge was, in actuality, feeding the birds.
With that said, Woolridge's remaining arguments on appeal are directed to the proposition that DHL's instruction to not feed the birds on its property was not "reasonable" within the meaning of KRS 341.370(6), and that his refusal to obey it could not, therefore, support a termination for cause.
Woolridge's first argument in this vein is that DHL itself did nothing to discourage the bird population in and around its facility during the period of his employment. Additionally, he also points out that DHL's facility has large overhead doors; that birds enter the facility when the doors are opened; and that several birds actually nested in the rafters.
It does not follow, however, that DHL either wished to encourage the bird population in and around its facilities, or that it had no legitimate interest in preventing its employees from doing so. This merely demonstrates that the impracticalities presented by the nature of DHL's business and the nesting habits of birds forced DHL to tolerate birds, at least to an extent. Part of tolerating the birds required DHL to expend resources and manpower to clean bird droppings in and around its facility and machinery. And, an obvious point DHL imparted over the course of its warnings to Woolridge was that feeding birds leads to more birds, and more birds leads to more of a mess.
Next, Woolridge argues that he only fed birds outdoors. To the extent that this would be relevant, there was substantial evidence to the contrary. In particular, the June 1, 2012 citation issued to Woolridge warned him that his conduct in feeding the birds could lead to problems with the sorting machinery located inside of DHL's warehouse; and, one of Woolridge's co-workers, Tim Corsbie, testified that he witnessed Woolridge sprinkling cracker crumbs to feed birds under a conveyor belt inside of the warehouse on at least one occasion about a month before Woolridge was eventually discharged.
Woolridge argues that he only fed birds during his breaks. True or not, though, this argument misses the point. Woolridge's employment was not terminated because of substandard work performance or dereliction of duty; it was terminated because, despite clear instructions to the contrary, he was encouraging a nuisance and health hazard that was affecting his employer's business.
Woolridge argues that he was not the only employee who fed birds on DHL's property. Apart from Woolridge's own self-serving testimony, which the Commission was free to disregard, nothing of record demonstrates than any other DHL employee fed the birds, or that DHL needed to warn any other DHL employee not to feed the birds. Moreover, even Woolridge's testimony to this effect demonstrated on some level that he recognized DHL would not have tolerated it if it had become aware that other employees were also feeding birds. When questioned further on this subject, Woolridge stated:
I wasn't the only one, other people were feeding the birds, too. But I'm not going to say who they are because I don't want to jeopardize—I don't want—I don't have to tell you what happened.
Woolridge argues that there is a public observation area near DHL's facility where people frequently feed birds and no signs prohibit them from doing so. But, there is no indication that this public observation area is located on DHL's property or otherwise within DHL's control.
Woolridge argues that he had been feeding birds on DHL's property for over eleven years—almost the entirely of his tenure of employment—before DHL began warning him to stop. Assuming this is true, he points to no authority supporting that this somehow foreclosed DHL's right to stop him from doing so.
Woolridge argues that DHL should not have cared if his conduct encouraged the bird population on its property because the airport encouraged hawks upon its property through the use of metal hawk stands in order to reduce the endemic rodent population. However, there is nothing indicating that DHL has any control over what the airport does with its separate property. Moreover, there is nothing in the record supporting that the airport wished to attract hawks for the sole purpose of controlling the rodent population. Indeed, it is common knowledge that hawks also prey upon smaller birds.
Lastly, Woolridge argues that the Federal Aviation Administration has never determined that the bird population at the Northern Kentucky/Greater Cincinnati International Airport presents a hazard to air traffic. No evidence of record supports this argument either way, and it also misses the point. Irrespective of any findings of the FAA, it is not unreasonable for DHL to want less of a bird population around its own facilities; nor, for that matter, was it unreasonable for DHL to expect Woolridge to comply with its clear instruction not to feed the birds.
CONCLUSION
The evidence supports that DHL had a legitimate business interest in not encouraging the bird population; it was reasonable for DHL to instruct Woolridge not to feed the birds; in refusing to obey that instruction, Woolridge was insubordinate and committed misconduct; and, therefore, Woolridge was terminated for cause. Accordingly, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: R. Kim Vocke
Covington, Kentucky
BRIEF FOR APPELLEE,
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION:
Patrick B. Shirley
Frankfort, Kentucky