BRIEF FOR APPELLANT: James C. Maxson Frankfort, Kentucky BRIEF FOR APPELLEES: Harry B. O'Donnell, IV Louisville, Kentucky David Vickery Leitchfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 12-CI-00329
BEFORE: CLAYTON, JONES AND TAYLOR, JUDGES. JONES, JUDGE: The Kentucky Unemployment Insurance Commission (KUIC) appeals from a Grayson Circuit Court order which reversed KUIC's order that Deborah Robinson was not entitled to unemployment insurance benefits because she was discharged from her employment with the Grayson County Board of Education for misconduct. Having reviewed the record and applicable law, we reverse.
I. Background and Procedural History
The Appellee, Deborah Robinson, began working for the Grayson County Board of Education, on July 21, 1999. She was employed as a school bus driver. The circumstances leading to her termination were set forth as follows in the Referee's findings of fact as adopted by the KUIC:
On or about November 10, 2011, the claimant had an exchange with a minor female student on Facebook. The claimant used her personal computer at her residence during the exchange. The minor female student and her boyfriend, Stephen, had been bullying the claimant's son, Reese at school. The claimant sent a private message to the female student requesting that the student and her boyfriend stop bullying the claimant's son. The female student responded with profanity and demeaning remarks towards the claimant. The claimant sent a private message to the female student, stating "YOU LITTLE BITCH, what are you going to do when Stephen dumps your ass after you have the baby like he did his other girlfriend."
On or about November 12, 2012, Stephen's mother brought the printed Facebook message to the Director of Transportation, Arnold Hack. Mr. Hack informed Barry Anderson, Superintendent, of the situation and Mr. Anderson met with the claimant on Monday, November 15, 2011. The claimant admitted to the exchange and was suspended pending further investigation. On November 16, 2011, Mr. Anderson sent the claimant correspondence indicating his intent to discharge the claimant for violation of the employer's policy. The claimant requested a pre-hearing termination which was held on January 4, 2012. Pursuant to the employer's policies and procedures, Mr. Anderson declined to preside over the hearing, and an independent hearing
officer was appointed. On January 9, 2012, Hearing Officer Lewis issued a written decision upholding Mr. Anderson's decision to discharge the claimant.
After her discharge, Robinson filed a claim for Unemployment Insurance benefits on February 21, 2012. An initial administrative determination was issued on March 22, 2012, which concluded that the Robinson was not qualified to receive Unemployment Insurance benefits because she was discharged for having committed misconduct. Robinson appealed and an administrative evidentiary hearing was held by teleconference on April 24, 2012, and again on April 26, 2012. The Appeals Branch Referee entered a Referee Decision on June 15, 2012, which affirmed the initial determination. The Referee specifically included:
The claimant was an adult representative of the employer who had a profane and inappropriate exchange with a minor student. Although the claimant did not knowingly violate a known policy of the employer, the claimant did exhibit behavior unbecoming of a school employee, as envisioned by the policy. In this case, the claimant's behavior deviates from the standards of behavior that an employer can expect of its employees and evidences a willful and wanton disregard of the employer's interests. Therefore, the employer has met its burden, as set forth in Brown Hotel, supra, and the claimant is disqualified from the receipt of benefits.
The referee found that Robinson's interaction with the student constituted misconduct and therefore denied her benefits. Robinson then appealed that decision to the KIUC on July 2, 2012. On August 8, 2012, the KUIC affirmed the referee's decision. Robinson then appealed to the Grayson Circuit Court. On March 14, 2013, the Grayson Circuit Court reversed the initial determination, the Referee, and the Commission. This appeal followed.
II. STANDARD OF REVIEW
Our standard of review of an unemployment benefit decision is whether the KUIC's findings of fact were supported by substantial evidence and whether the agency correctly applied the law to the facts. Thompson v. Kentucky Unemployment Insurance Commission, 85 S.W.3d 621, 624 (Ky. App. 2002). Substantial evidence is evidence that has enough probative value to make reasonable people agree as to a conclusion. Id. When substantial evidence supports the Commission's decision, a reviewing court must defer to the finding even when the record contains evidence to the contrary. Urella v. Kentucky Bd. of Med. Licensure, 939 S.W.2d 869, 873 (Ky. 1997); Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981). While the court must defer to findings of fact, it reviews issues of law de novo. Wilson v. Kentucky Unemployment Ins. Comm'n, 270 S.W.3d 915, 917 (Ky. 2008).
The facts in this case are not disputed. The crux of this appeal is whether the Commission erred in its application of KRS 341.370 to determine that Robinson was terminated for misconduct and therefore disqualified from receiving benefits. KRS 341.370(1)(b) provides in pertinent part that a "worker shall be disqualified from receiving benefits for the duration of any period of unemployment with respect to which ... [h]e has been discharged for misconduct or dishonesty[.]" Although the statute does not specifically define "discharge for misconduct," it describes the term as including, but not being limited, to:
[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 a type of conduct does not fall within one of the listed examples, it is analyzed under the old common law definition of "misconduct" as established by Boynton Cab. Co. v. Neubeck, 296 N.W. 636 (Wis. 1941), and adopted in Kentucky by Douthitt v. Kentucky Unemployment Ins. Commission, 676 S.W.2d 472 (Ky. 1984). Boynton Cab held that:
[T]he term 'misconduct' ... is limited to conduct evincing such willful or wanton disregard of an employer's interests as 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 to 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 deemed 'misconduct' within the meaning of the statute.
Because unprofessional behavior is not covered by a specific example of misconduct in KRS 341.370(6), it is appropriately adjudicated under this common law definition. Under Boynton, misconduct denotes actions by a worker that show a willful or wanton disregard of the employer's interests, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, or an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.
Here, in finding the evidence sufficient to support a finding of misconduct under Boynton, KUIC stated:
Under Boynton Cab, supra, misconduct denotes actions by a worker that show a willful or wanton disregard of the employer's interests, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, or an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. Every employer has the right to expect its workers to conform to certain reasonable standards of behavior. Deviation from such standards is a disservice to the employer's interests. Some expected standards of behavior are so implicit in the employer-employee relationship that their breach is
an obvious act in willful or wanton disregard of the employer's interests and requires no warning to constitute misconduct.
The circuit court agreed with KUIC to the extent that Robinson had committed error justifying termination for cause. However, the circuit court further held that while Robinson made a serious error in judgment in responding as she did, Robinson did not commit "misconduct" disqualifying her from benefits. We disagree.
Robinson's actions in defending her son from bullying through a Facebook exchange with a minor student might be described as a good faith error in judgment or discretion. However, her actions in privately messaging a minor female student, who attends the District in which she is employed, and attacking her with foul language, are actions rising to the level of willful or wanton disregard of the employer's interests, or an intentional and substantial disregard of the employer's interests or her duties and obligations to the employer. Privately messaging a minor female student, calling her a profane name, and insinuating that her unborn child would be left fatherless, shows a level of conduct that goes beyond ordinary negligence or a good faith error in judgment.
We also disagree with the circuit court's conclusion that the Referee erroneously determined the language was profane and that the communication did not rise to a level to merit a determination by the KUIC that Robinson committed "misconduct." The record reveals that the District's Superintendent "was gravely concerned about her language with a high school student" and "that would be conduct that [he] would deem to be unfit to work in our School System." We find that the inappropriate nature of the communication, combined with Robinson's status as a District Employee, and the status of the recipient as a minor student in the district, raise the communication to the level of misconduct.
Further, Robinson argues that her actions were not sufficiently connected to work because they took place on her private computer, at her private home, and outside of work hours. However, the Commission argues and we agree that there is a clear connection between Robinson's misconduct and her position as a district employee. She was not simply terminated because of the nature of her interaction on Facebook, she was fired because she engaged in such an interaction with an underage student of the school district for which she worked. Robinson was an employee and representative of the school district. She made these comments to an under-age student of the district where she was employed. As a bus driver, Robinson had front-line interaction with students on a daily basis. Therefore, the interaction between Robinson and the underage student was sufficiently connected with her work as a district employee to preclude her receipt of Unemployment Insurance benefits.
Lastly, Robinson argues that the standard of behavior that the KUIC applied was so vague and overly broad that a denial of benefits under such a supposed standard is unconstitutional. Here, the KUIC found that the district's rule of prohibiting immorality or conduct unbecoming of a school employer and allowing for discharge could apply to a number of behaviors and if considered to be a rule, it would be vague and overly broad. However, the Commission found that the employer's identification of unprofessional conduct as a behavior that will not be tolerated within a written document, should not be considered a "rule" within the meaning of KRS 341.370(6), because to do so would prejudice the employer. The Commission found, and we agree, that the fact that the employer codified a general duty, an otherwise reasonable expectation of behavior, should not work to its detriment. Therefore, because unprofessional behavior is not covered by a specific example of misconduct in KRS 341.370(6), we find that the KUIC appropriately adjudicated this issue under Boynton Cab, supra.
The Commission applied the Boynton standard and concluded that Robinson's act of participating in a profane online interaction with a minor student of the district for which she worked, was a violation of the type of behavior which the district had a right to expect from her. As such, Robinson's conduct constituted misconduct. We find that the Commission correctly applied the law in making this conclusion.
Therefore we find that substantial evidence supports KUIC's finding of misconduct and we may not reverse a decision that is supported by substantial evidence. Kentucky Unemployment Ins. Com'n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 582 (Ky. 2002).
The Commission's findings of fact were supported by substantial evidence and it correctly applied the law. Accordingly, we reverse the Grayson Circuit Court.
TAYLOR, JUDGE, CONCURS.
CLAYTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CLAYTON, JUDGE, DISSENTING: I respectfully dissent. In my opinion, there is not substantial evidence to uphold the decision of KUIC. No disagreement exists that Robinson was terminated from her job for unprofessional behavior when, after work, she sent from her home computer a private, intimidating message on Facebook to a minor student. Significantly, the majority cites cases that involved individuals who were terminated for conduct occurring at work. Robinson's conduct was also unrelated to her duties as a school bus driver. Furthermore, there is no dispute that when Robinson sent the message, she was unaware that she violated the rules of Grayson County Board of Education. Finally, the record does not reflect any other misconduct or any proof that she was given any warnings regarding the behavior.
In Boynton, the claimant, Neubeck, was discharged as a taxi cab driver after a series of accidents and for underreporting his paid fares. In addition, he had been given prior warnings. Ironically, the court in Boynton held that Neubeck's failure to report his accidents or to keep a record of his accidents did not arise to the level of "... conduct from which could be imputed a lack of showing proper regard for the employer's interests, constituted misconduct within the meaning of the term...". Boynton, 296 N.W. 636 at 642. Thus, the court awarded Neubeck benefits.
Boynton is also helpful in considering the purpose of unemployment compensation. The Boynton court stated:
...the principal purpose and object under the act of alleviating the evils of unemployment by cushioning the shock of a lay-off, which is apt to be most serious to such workers. In view of these consequences which would thus result if the provision as to misconduct, under which an employee may become subjected to the forfeiture, must be deemed applicable to all types of "misconduct" that can be considered to be within the broad scope of that term (as defined in the above quotation from 40 C.J. p. 1220), and in view of the ambiguous or doubtful import in its meaning as used in the statute, it is necessary and proper to resort to the rule that statutes providing for forfeitures are to be strictly construed and terms and provisions therein, which are ambiguous or of doubtful meaning, will be given the construction which is least favorable to working a forfeiture, so as to minimize the penal character of the provision by excluding rather than including conduct or cases not clearly intended to be within the provision. "Where the purpose is uncertain, the language should be read strictly to soften its severity; where otherwise, it would express a meaning which would be unreasonably harsh."Id. at 640. (Citations omitted.)
Further, Boynton considered British unemployment compensation laws in the following series of quotes:
This case affords an illustration of a not uncommon cause of loss of employment and it may be useful to consider when negligence, carelessness or mistake can properly be regarded as misconduct. It is not safe to do more than deal with the subject on broad lines because misconduct is always a question of fact which depends upon an infinite variety of circumstances, including the past record and general character of the alleged delinquent.Id. at 640-41. (Citations omitted.)
As a general rule it may be said that a single instance of negligence or mistake is not sufficient evidence of misconduct. *** The present case falls within this category.
But to this rule there are exceptions. *** and when the direct consequences of an act or omission are fairly obvious to an applicant, and are such as to be likely to cause serious loss to the employer, his business or his property, a finding of misconduct is not unreasonable.
As noted by the majority, Boynton was adopted in Kentucky by Douthitt. In Douthitt, the claimant was a manager of a Minit Mart. When an inventory shortage was detected, the Minit Mart manager refused to take a polygraph test even though she had previously agreed in writing to take the test. The Court held "that it is unreasonable for an employer to require its employees to submit to such an unreliable test for purposes of unemployment compensation benefits." Douthitt, 676 S.W.2d 472 at 475. Thereafter, the manager was awarded unemployment compensation.
Here, I believe that Robinson did not show an intentional and substantial disregard of the employer's interests or her duties and obligations to the employer. Robinson's conduct was clearly unsatisfactory, unprofessional, and an error in judgment, but this type of behavior is not specifically covered in KRS 341.370. Hence, an analysis of the conduct must be undertaken to determine whether this single mistake is sufficient evidence of misconduct.
In my opinion, Robinson's conduct was totally inappropriate, but it does not reflect a deliberate violation of a known policy of the Grayson County Board of Education. There is no proof that her actions harmed the business interest of the Grayson County Board of Education.
It is important to keep in mind that the issue in this case is not whether Robinson should be discharged from employment but whether she should receive unemployment compensation. As Judge William Graves wrote in his dissent in Holbrook v. Kentucky Unemployment Insurance Commission, 290 S.W.3d 81, 88-89 (Ky. App. 2009):
Because unemployment compensation law is remedial humanitarian legislation, the standards for denying unemployment benefits to a discharged employee following termination are stringent..." They require a malicious intent and deliberate actions, on the part of the employee, to harm the business interests of the employer. The Appellant's mere failure to satisfactorily perform his job duties, while justifying the employer's decision to terminate his employment, does not rise to the level of
"misconduct" for purposes of determining eligibility for unemployment insurance pursuant to KRS 341.370(1)(b), and the Appellee has offered no proof of the malicious intent required for denial of unemployment benefits.
In this case, I do not think that there is substantial evidence that Robinson's actions rose to the level of misconduct. To deny benefits is unduly harsh. Thus, I would affirm the trial court and award unemployment compensation benefits. BRIEF FOR APPELLANT: James C. Maxson
BRIEF FOR APPELLEES: Harry B. O'Donnell, IV