JOYCE T. RAMOS v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND J'S LIQUOR & CHEESE SHOP
Annotate this Case
Download PDF
RENDERED:
November 5, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003028-MR
JOYCE T. RAMOS
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE GARLAND W. HOWARD, JUDGE
ACTION NO. 98-CI-00709
v.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION
AND J'S LIQUOR & CHEESE SHOP
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE:
DYCHE, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Joyce Ramos was denied unemployment insurance
benefits because the Kentucky Unemployment Insurance Commission
found that she had been discharged for misconduct - accepting
five bad checks between 1995-1997.
The circuit court affirmed,
but we reverse because her conduct did not rise to the definition
of misconduct under KRS 341.370 which requires wanton and willful
violations of rules, not mere negligence or poor judgment.
Joyce Ramos began working for J's Liquor and Cheese
Shop (J’s) on November 17, 1985.
night closer.
Joyce Ramos was a clerk and a
Her duties included waiting on customers, putting
up stock, being in charge of the night shift, making night
deposits, and locking and securing the store.
After working for
J’s for nearly 12 years, Joyce Ramos earned $5.65 per hour, and
received no health insurance or other benefits.
It is undisputed
that Joyce Ramos was a dedicated and hardworking employee, who
was always willing to change shifts, work weekends, and fill in
for other employees when asked to by her employer.
J’s admits
that there were no problems with Joyce Ramos as far as tardiness
or absenteeism was concerned.
In addition to accepting personal checks for purchases,
J's also cashed payroll checks for customers.
Ramos handled approximately 70 checks per week.
As a clerk, Joyce
J’s had a check
cashing policy which required employees to write down a
customer's social security number on a check, and verify the
number from the customer's license.
J’s did not require an
employee to verify a social security number if the customer was
known to the employee.
Employees were also required to check the
“do not cash check” lists before accepting a check from a
customer.
Joyce Ramos had read and signed the check cashing
policy in 1996, the last sentence of which stated “Anyone who
does not follow these guidelines and whose actions results in
returned checks . . . will be asked to pay for the check or be
terminated at the discretion of management.”
In her 10 years of employment prior to 1995, J’s admits
that there were no problems with Joyce Ramos’s work.
Between
1995-1997, there were five incidents involving returned checks
that Joyce Ramos had accepted from customers.
Joyce was fired
after the fifth incident, when a check for $10.29 was returned
-2-
that she had accepted from a person whose name appeared on the
"do not cash check" list.
When the check was returned, Joyce
explained to her employer that she had checked the list, but must
have overlooked the name.
She apologized for her mistake, and
offered to pay for the check.
J's, however, chose to fire her on
October 21, 1997, after nearly 12 years of service.
Joyce Ramos applied for unemployment benefits.
The
Division of Unemployment Insurance decided that Joyce Ramos was
discharged for misconduct connected with her work, and was,
therefore, disqualified from receiving unemployment benefits
pursuant to KRS 341.370(1)(b).
Joyce Ramos appealed the
decision, and a hearing was held before a Referee.
The Referee
made the following findings of fact:
On January 13, 1995, claimant was warned and
suspended without pay for accepting a $400.00
plus check without verifying the social
security number.
Claimant had not looked at
the individual's social security number on
that occasion.
She had asked the person for
it and he wrote it down.
Another employee
told claimant that she should accept the
check.
There were two checks returned during
calendar year 1996.
One check was for
$426.24 and the other check was for $90.
Claimant checked the identification of each
-3-
person.
But, concerning the check for
$426.24, she let the customer write the
social security number on the check.
The
check proved to be bogus as did the social
security number appearing thereon.
Claimant took a bogus check for $293.57.
The
payroll check was dated July 21, 1997.
Claimant checked the social security number
of that person and wrote the number on the
check.
But, [J’s] determined that claimant
utilized poor judgment in accepting the
check. [J’s] felt that she should have known
that the check was bogus because of the lack
of a watermark thereon.
A notation on the
check indicated that the reverse side thereof
had an artificial watermark which the check
did not have.
As a result of her acceptance
of that check, claimant was issued another
warning.
Per this warning, claimant was on
notice that "further cashing of checks
without following policy or using good
judgment will result in disciplinary action."
On September 29, 1997, claimant received a
check from an individual whose name appeared
on the "do not cash" check list.
-4-
The list is
posted by the drive-in window.
Also, the
person's name was posted on the cash
register.
The check was for [$10.29].
check, also, was returned.
This
Claimant was not
the only employee who took a check from that
person.
Other employees took checks from
that individual in March 1997, on May 21,
1997 and September 20, 1997.
Claimant explained that she glanced over the
list but failed to observe the individual's
name on that list.
She was busy at the time.
Each of the aforementioned checks were
returned to the employer.
Claimant offered
to pay for the last check and for the other
checks in full.
But, because [J’s] believed
that claimant used poor judgment in the
receipt of checks, [J’s] was unwilling to
allow claimant to pay for the checks or to
retain her services. [J’s] discharged
claimant on October 21, 1997.
(Emphasis
added.)
The Referee concluded that Joyce Ramos had been
discharged for misconduct connected with her work, and, as a
result, she was not entitled to receive unemployment benefits
-5-
under KRS 341.370(1)(b).
Joyce Ramos appealed the denial of
benefits to the Kentucky Unemployment Insurance Commission, which
affirmed the Referee's decision, adopting the Referee's findings
as its own.
Joyce Ramos appealed the Commission’s decision to
the Daviess Circuit Court.
The court affirmed the Commission’s
decision, and this appeal followed.
On appeal, Joyce Ramos argues that her actions in
accepting the five bad checks did not rise to Kentucky's
definition of misconduct so as to disqualify her from receiving
unemployment benefits pursuant to KRS 341.370(1)(b).
We agree.
An administrative board's decision will not be disturbed so long
as its findings are supported by substantial evidence, and the
agency applied the correct rule of law.1
However, on reviewing
the record, we conclude that there was not substantial evidence
that Joyce Ramos’s actions constituted misconduct within the
meaning of the statute, and therefore the Commission erred in
denying her unemployment benefits.
KRS 341.370(1)(b) provides that a worker is not
entitled to receive unemployment benefits if the worker has been
discharged for misconduct connected with his work.
KRS
341.370(6), although not an all-inclusive list, provides some
examples of misconduct, including a "knowing violation of a
reasonable and uniformly enforced rule of an employer" and
"refusing to obey reasonable instructions."
In order to qualify
as misconduct under the statute, however, an employee's actions
1
See Brown Hotel Co. v. Edwards, Ky., 365 S.W.2d 299, 302 (1962).
-6-
must be wanton and willful, not merely negligent or the result of
poor judgment.2
In Shamrock,3 this Court discussed the issue of
negligent versus willful or wanton conduct in regards to
disqualification from unemployment benefits pursuant to KRS
341.370(1)(b).
Shamrock involved an employee who was fired and
then denied unemployment benefits as a result of his turning over
a bulldozer on the job.
In holding that the employee was
entitled to benefits, this Court stated:
we can only view Taylor's acts leading to the
overturn of the dozer as constituting nothing
more than an isolated case of poor judgment
or minor 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. (Citations omitted.)
There is a total absence of bad faith or any
inference of culpability in the form of
willful or wanton conduct.4 (Emphasis
added.)
Applying the test from Shamrock to the instant case, we
find no evidence of bad faith, or culpability in the form of
willful or wanton conduct on the part of Joyce Ramos with regard
to the bad checks which she accepted.
Rather, the evidence shows
that Joyce Ramos was fired for negligence and poor judgment,
2
See Shamrock Coal Co., Inc. v. Taylor, Ky. App., 697 S.W.2d 952 (1985); Kentucky
Unemployment Insurance Commission v. Dye, Ky. App., 731 S.W.2d 826 (1987); Kentucky
Unemployment Insurance Commission v. King, Ky. App., 657 S.W.2d 250 (1983).
3
Id.
4
Shamrock, 697 S.W.2d at 954. See also Kentucky Unemployment Insurance
Commission v. Gooslin, Ky., 756 S.W.2d 464 (1988).
-7-
which is not misconduct under the statute.5
As previously
stated, the referee made the following finding concerning the
reason for Joyce Ramos's firing:
because [J's]
poor judgment
was unwilling
the checks or
believed that claimant used
in the receipt of checks, [J's]
to allow claimant to pay for
to retain her services.
Further, the Commission did not find misconduct on the
part of Joyce Ramos regarding the first four checks.
The
Commission’s decision that Joyce Ramos had engaged in misconduct
was based on the fifth incident which resulted in her firing her acceptance of the check for $10.29 from an individual whose
name appeared on the “do not cash check” list.
The Referee
stated:
It is obvious that the employer does not
follow its check cashing policy as to
requiring the employee to pay for the check
and/or terminating him or her. But, even so,
there exist enforcement although it is of a
more lax nature than specified in the written
word. [J's] own practice with claimant
reflects that, through a series of
discipline, the employer attempts to impress
on the employee the need for compliance.
Claimant was not required to make good on the
checks from her own pocket.
Claimant did not set out to willfully neglect
her duties with regard to the policy. While
she may have been less than observant with
regard to two of the checks, she erred when
she failed to write down the social security
number herself.
In any regard, claimant received warnings.
Following the issuance of the last warning,
equally applicable to the first, she had a
duty to exercise more attention to detail in
the performance of her duties regarding
checks. She failed in that duty when she
5
See Shamrock, 697 S.W.2d at 954.
-8-
took the check from the person whose name was
not only on the "do not cash check" list but
on the list on the register. Following the
warnings she received, her inattention to
duty in that regard was wanton and her
discharge was for misconduct connected with
the work. (Emphasis added.)
From our review of the record, we cannot say that there
exists substantial evidence that Joyce Ramos accepted the bad
check in willful and wanton disregard of her employer’s
interests.6
The evidence indicates quite the contrary, that
Joyce Ramos was a conscientious employee who made a negligent
mistake.
She did not willfully neglect her duties.
She handled
approximately 43,000 checks in her 12 years with J’s, out of
which she accepted only one from a person on the “do not cash
check" list.
Joyce Ramos stated that she checked the list, and
overlooked the name.
We adjudge this to be nothing more than
minor and unintentional negligence or poor judgment.7
Further,
the record shows that this was not an uncommon mistake at J’s three other employees also accepted a check from this same
individual while his name appeared on the list.
The fact that
Joyce had been warned to be more careful did not cause this final
mistake to rise to the level of willful and wanton.
Joyce
Ramos’s lack of bad faith is further demonstrated by her apology
and offer to pay for the check, as well as the other four
returned checks which she had accepted.
While it was within J's discretion to terminate Joyce
Ramos's employment as a result of her actions in accepting the
6
King, 657 S.W.2d at 251.
7
Shamrock, 697 S.W.2d at 954.
-9-
bad checks, we conclude her actions were not willful and wanton
so as to constitute misconduct under KRS 341.370(1)(b) and merit
denial of unemployment benefits.8
For the aforementioned reasons, the judgment of the
Daviess Circuit Court is reversed, with directions to remand the
case to the Kentucky Unemployment Insurance Commission for an
award of unemployment benefits to Joyce Ramos.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, KENTUCKY
UNEMPLOYMENT INSURANCE
COMMISSION:
Bradley P. Rhoads
Owensboro, Kentucky
Timothy A. Sturgill
Frankfort, Kentucky
BRIEF FOR APPELLEE, J’S LIQUOR
& CHEESE SHOP:
Jesse T. Mountjoy
P. Marcum Willis
Owensboro, Kentucky
8
Id.
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
