KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION v. DEANNA L. BARNETT AND MANPOWER OF INDIANA LIMITED PARTNERSHIP MANPOWER OF INDIANA LIMITED PARTNERSHIP AND KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION v. DEANNA L. BARNETT
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RENDERED: JUNE 2, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001780-MR
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION
v.
APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 98-CI-00384
DEANNA L. BARNETT AND
MANPOWER OF INDIANA LIMITED PARTNERSHIP
APPELLEES
1999-CA-001813-MR
MANPOWER OF INDIANA LIMITED PARTNERSHIP AND
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION
v.
APPELLANTS
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 98-CI-00384
DEANNA L. BARNETT
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; DYCHE, AND MILLER, JUDGES.
MILLER, JUDGE:
Kentucky Unemployment Insurance Commission
(Commission) brings Appeal No. 1999-CA-001780-MR and Manpower of
Indiana Limited Partnership (Manpower) brings Appeal No. 1999-CA001813-MR from a July 6, 1999, Order of the Taylor Circuit Court.
We reverse and remand.
Deanna L. Barnett, an employee of Manpower, was
discharged on June 23, 1998.
She subsequently filed a claim for
unemployment insurance benefits.
On July 9, 1998, the Division
of Unemployment Insurance (Division) issued a notice of
determination finding that Barnett was discharged from employment
for misconduct and thus disqualified from receiving unemployment
insurance benefits.
Barnett appealed the determination to an
unemployment insurance referee.
341.420.
Kentucky Revised Statutes (KRS)
The referee conducted a hearing, set aside the
Division's determination, and held Barnett entitled to
unemployment insurance benefits.
Manpower, thereafter, appealed
the referee's decision to the Commission.
KRS 341.430.
On
October 15, 1998, the Commission entered an order reversing the
referee and entered its own findings of fact, which were contrary
to the referee's.
The Commission found the evidence to be more
credible that Barnett was, indeed, discharged for reasons of
misconduct and thus barred from receiving unemployment insurance
benefits.
Barnett then sought review of the Commission's
decision in the Taylor Circuit Court.
KRS 341.450.
The circuit
court reversed the Commission and specifically concluded as
follows:
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The Commission reversed the Referee and in
its statement of the reasons for this
reversal, it relies on its determination of
credibility of the witness. An appellate
body may not reverse the finder of fact on an
issue of credibility, particularly where
another hearing was not held.
. . . The Commission cannot substitute
its own findings for those of the Referee . .
. .
This appeal follows.
APPEAL NO. 1999-CA-001780-MR
The Commission contends the circuit court committed
error by holding that the Commission had no independent fact
finding authority.
We agree.
In Burch v. Taylor Drug Store, Inc., Ky. App., 965
S.W.2d 830 (1998), the Court noted the Commission's role in
reviewing unemployment insurance cases is “substantially
different” from other administrative review boards.
Specifically, the Court observed:
Unlike a conventional appellate body, the
Commission conducts a de novo review of
applications. . . Thus, while the Commission
generally does not hear evidence directly
from witnesses, it has the authority to enter
independent findings of fact. (Citation
omitted.) Necessarily, such authority allows
the Commission to judge the weight of the
evidence and the credibility of witnesses and
to disagree with the conclusion reached by
the referee.
Id. at 834 (Emphasis added).
Barnett, however, urges this Court
to adopt a narrow construction of Burch and limit its application
only to situations where the Commission ordered “additional
proof.”
We decline to do so.
We believe such narrow
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construction contradicts the plain language of not only Burch but
of KRS 341.430(1) and 787 Kentucky Administrative Regulations
(KAR) 1:110 §2(4)(a).
KRS 341.430(1) provides as follows:
The Commission may on its own motion affirm,
modify, or set aside any decision of a
referee on the basis of the evidence
previously submitted in such case, or direct
the taking of additional evidence, or may
permit any of the parties to such decision to
initiate further appeals before it.
787 KAR 1:110 §2(4)(a) states as follows:
(a) Following the conclusion of a
hearing the commission shall promptly
announce its decision, which may be either an
affirmation of the decision of the referee,
or a separate finding of facts, decision and
reasons therefor. The decision shall be in
writing and shall be signed by the members of
the commission who heard the appeal. At the
discretion of the commission, its decision
may be designated as representing precedent
for future cases of similar circumstance.
Decisions designated as precedent shall be
binding on all lower levels of determination.
(Emphasis added.)
We believe it clear the Commission has unique authority
to enter independent findings of fact from that of the referee
and necessarily the ability to judge the weight and credibility
of evidence.
As such, we are of the opinion the circuit court
-4-
committed reversible error by concluding the Commission did not
possess such independent fact finding authority.
The Commission next asserts that its decision was not
arbitrary.
It specifically argues that its findings of fact were
supported by substantial evidence of probative value.
Evidence
is deemed substantial:
[W]hen taken alone or in the light of all the
evidence it has sufficient probative value to
induce conviction in the minds of reasonable
men.
Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298,
308 (1972), citing Blankenship v. Lloyd Blankenship Coal Company,
Inc., Ky., 463 S.W.2d 62 (1970).
While the facts were certainly
disputed, we think Manpower presented sufficient evidence to
prove that Barnett was discharged for reasons of misconduct.
Barnett's supervisor, one Tracy Robideaux, testified that
excessive tardiness was a reason for Barnett's termination and an
exhibit was introduced detailing such tardiness.
In sum, we hold
there exists substantial evidence of probative value to support
the Commission's decision.
We thus reverse in Appeal No. 1999-
CA-001780-MR.
APPEAL NO. 1999-CA-001813-MR
Based upon the above reasoning, we likewise reverse in
Appeal No. 1999-CA-001813-MR.
For the foregoing reasons, the Order of the Taylor
Circuit Court is reversed, and this cause is remanded for
proceedings consistent with this opinion.
-5-
ALL CONCUR.
BRIEFS FOR APPELLANT, KENTUCKY
UNEMPLOYMENT INSURANCE
COMMISSION:
BRIEF FOR APPELLEE:
Stephen B. Humphress
Lebanon, Kentucky
Randall K. Justice
Frankfort, Kentucky
BRIEF FOR APPELLANT, MANPOWER
OF INDIANA LIMITED
PARTNERSHIP:
Paul V. Hibberd
Louisville, Kentucky
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