KIMBERLY F. MARCUM v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION; FORD MOTOR COMPANY
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RENDERED:
SEPTEMBER 9, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-002222-MR
KIMBERLY F. MARCUM
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 04-CI-001296
KENTUCKY UNEMPLOYMENT INSURANCE
COMMISSION; FORD MOTOR COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
ROSENBLUM, SENIOR JUDGE:
Kimberly F. Marcum appeals from an
order of the Jefferson Circuit Court affirming the Kentucky
Unemployment Insurance Commission’s (Commission) decision
denying her request for unemployment benefits.
Because
substantial evidence supports the Commission’s findings, and
1
Senior Judge Paul Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
because the Commission correctly applied the relevant
unemployment compensation law to those findings, we affirm.
Marcum began employment with Appellee Ford Motor
Company in October 1999.
2003.
Marcum was discharged on August 14,
At the time of her termination, Marcum was a Material
Handling Supervisor.
Prior to her termination Marcum had been disciplined
for attendance violations on several occasions, including a
verbal warning in June 2000; a one-week suspension without pay
and warning of progressive discipline for further attendance
violations in May 2001; a two-week suspension without pay and
warning of progressive discipline for further attendance
violations in November 2001; and a four-week suspension without
pay and warning of termination for further attendance violations
in August 2002.
In association with the August 2002
disciplinary incident, Ford issued a letter of discipline to
Marcum which stated, in relevant part, as follows:
You were absent from work on Sunday, June 2
in violation of the Attendance Guidelines.
You failed to [provide] adequate medical
documentation for that day’s absence. You
also failed to report to work on June 4 as
scheduled and failed to provide appropriate
medical documentation. It is your
responsibility and job related obligation to
report to work on time when scheduled or
completely follow the Attendance Guidelines
you have been placed [sic].
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You are advised that . . . if your absences
are a result of a personal nature, that our
Total Health group could assist you[.]
[P]lease seek their assistance.
This letter of discipline is being issued to
advise you that you are being given a
disciplinary penalty of four weeks (without
pay) and any further recurrences of this
matter or similar incidents will result in
more severe disciplinary action, up to and
including termination from the Company.
(Emphasis added.)
At the time of her discharge, Marcum’s schedule was
6:00 p.m. to 4:30 a.m. Tuesday through Friday. 2
Due to a
neurological disorder, Marcum was under restrictions issued by
her family physician to limit her work schedule to 50 hours per
week.
On Friday, June 20, 2003, Ford directed all material
handler supervisors to work a “regular day off.”
As a result,
though she would normally have been off that day, Marcum was
ordered to report to work at 6:00 a.m. on Monday, June 23.
On
Friday evening, Marcum e-mailed her supervisor that due to her
work-restriction limitations, she would be unable to work on
June 23 because the additional work hours would place her above
her 50 hour work-restriction limit.
Nevertheless, on Sunday,
June 22, Marcum’s supervisor called her and instructed her to
2
Marcum states that her work schedule was 5:30 p.m. thorough 6:00 a.m.
Tuesday through Friday; however, the discrepancy is irrelevant to the issues
presented herein.
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report on Monday, and to confirm her restrictions with the
company physician.
Marcum reported on June 23 at 6:00 a.m.
physician was not on-site at the time.
The company
Pending the arrival of
the company physician, Marcum attended a staff meeting, and,
according to Ford, was assigned duties for the day’s work-shift.
Marcum saw the company physician at approximately 8:00 a.m.
According to Marcum, the physician confirmed the 50 hour workrestriction issued by her family doctor, and she understood that
to mean that she did not have to work the rest of her shift on
June 23.
Marcum accordingly left the plant immediately after
her meeting with the physician without discussing the matter
with anyone, though Marcum did leave a voice mail notifying her
supervisor of her departure.
Sometime around midday of June 23, Ford realized that
some of Marcum’s assignments had not been completed.
According
to Ford, it was only then that her supervisor realized that
Marcum had left the plant.
on June 24.
Marcum reported to work as scheduled
When confronted with the pervious day’s events,
Marcum claimed that she understood that the plant physician had
accepted the 50 hour work-restriction imposed by her family
doctor, and interpreted this as meaning that she did not have to
complete the June 23 shift.
Ford adopted the position that even
if the 50 hour work-restriction had been agreed to by all
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parties, it was Ford’s decision as to when Marcum would work
those 50 hours, not Marcum’s.
Because Marcum had been ordered
to work on June 23 and had left without permission, Ford
perceived the absence as an unexcused absence.
As a result of the June 23 incident, and in light of
her prior disciplinary record relating to unexcused tardiness
and absences, Ford terminated Marcum’s employment effective
August 14, 2003.
Marcum subsequently filed a claim for
unemployment benefits.
On September 12, 2003, the Department of
Employment Services, Division of Unemployment Insurance, granted
Marcum’s claim for benefits.
Upon becoming aware of the award,
pursuant to Kentucky Revised Statutes (KRS) 341.420, Ford
appealed the decision, claiming that Marcum was discharged for
misconduct.
The matter was referred to a Referee.
On December 8, 2003, an evidentiary hearing was held
before the Referee.
On December 10, 2003, the Referee issued a
Decision wherein he determined that Marcum had been discharged
for misconduct.
In accordance with this Decision, the Referee
set aside the determination that Marcum was entitled to
unemployment benefits.
Pursuant to KRS 431.430 Marcum appealed the Referee’s
decision to the Commission, claiming that she had not engaged in
misconduct in relation to the June 23, 2003, incident but,
rather, had acted in accordance with her understanding that she
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did not have to work that day because she thought that the 50
hour per week limitation had been ratified by the company
physician and the work-shift for that day would be in
contravention of the work-restriction.
Because she believed she
was authorized to depart, Marcum alleged that she had not
engaged in misconduct.
On January 27, 2004, the Commission
issued an Order affirming the Referee’s Decision that Marcum had
been discharged for misconduct.
Pursuant to KRS 431.460 Marcum appealed the
Commission’s decision to the Franklin Circuit Court.
On
September 9, 2004, the circuit court entered an opinion and
order affirming the Commission’s decision.
Marcum subsequently
filed a “motion to reconsider,” which was denied.
This appeal
followed.
Before us, Marcum contends that the circuit court
erred in affirming the Commission’s order denying Marcum
benefits because the Commission’s Findings were not supported by
substantial evidence and the Commission incorrectly applied the
law to the facts so found.
The legislative purpose in enacting the unemployment
compensation act was "to provide benefits for only those
employees who have been forced to leave their employment because
of forces beyond their control and not because of any voluntary
act of their own."
Kentucky Unemployment Insurance Commission
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v. Kroehler Manufacturing Company, 352 S.W.2d 212, 214 (Ky.
1961).
Moreover, an employee is not entitled to unemployment
benefits if he is discharged for misconduct.
KRS 341.370.
The
employer has the burden of proving that the employee's actions
constituted misconduct.
Burch v. Taylor Drug Store, 965 S.W.2d
830, 835 (Ky. App. 1998).
If there is substantial evidence in the record to
support an agency's findings, they are not clearly erroneous or
arbitrary and will be upheld even though there may be
conflicting evidence in the record.
Kentucky Commission on
Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981).
"The
fact that a reviewing court may not have come to the same
conclusion regarding the same findings of fact does not warrant
substitution of a court's discretion for that of an
administrative agency."
Kentucky Unemployment Insurance
Commission v. Landmark Community Newspapers of Kentucky, Inc.,
91 S.W.3d 575, 582 (Ky. 2002).
The fundamental question before us, therefore, is
whether the facts found by the Commission are "supported by
substantial evidence," Kentucky Unemployment Insurance
Commission v. Springer, 437 S.W.2d 501, 502 (Ky. 1969), and, if
so, whether the Commission "incorrectly applied the correct rule
of law to the facts presented to it."
Kentucky Unemployment
Insurance Commission v. Stirrat, 688 S.W.2d 750, 751-52 (Ky.App.
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1984).
Stated another way, the applicable standard of review is
as follows:
Judicial review of the acts of an
administrative agency is concerned with the
question of arbitrariness. The findings of
fact of an administrative agency which are
supported by substantial evidence of
probative value must be accepted as binding
by the reviewing court. The court may not
substitute its opinion as to the weight of
the evidence given by the Commission. Upon
determining that the Commission's findings
were supported by substantial evidence, the
court's review is then limited to
determining whether the Commission applied
the correct rule of law.
Burch, supra, at 834 (citations omitted).
The Commission made findings to the effect that Marcum
was required to report to work on June 23, 2003, pursuant to a
blanket order requiring supervisors in the material handling
department to work on their regularly scheduled days off; that
as a result of the order Marcum was required to work June 23,
2003, commencing with the 6:00 a.m. shift; that upon receiving
the order to work, Marcum e-mailed her manager that she was on a
50 hour per week work-restriction per her personal physician,
and that she would not be reporting to work on Monday June 23;
that on Sunday June 22 Marcum’s supervisor left Marcum a voice
mail message telling her that she could not schedule her own 50
hour work week, and that she was to report to work on June 23
and see the company physician; that Marcum reported for work at
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6:00 a.m. on June 23, but following her consultation with the
plant physician Marcum left the plant without permission from
her supervisor.
The foregoing findings of the Commission are supported
by substantial evidence in the record.
In fact, Marcum
essentially concedes these basic facts, and her arguments go
more toward the proper interpretation to be given to the facts.
We conclude that the facts as found by the Commission are
supported by substantial evidence and, as such, are not
arbitrary or clearly erroneous.
Having determined that the Commission’s findings are
supported by substantial evidence, we next review as to whether
the Commission applied the correct rule of law.
Upon
application of the applicable unemployment insurance law to its
findings of fact, the Commission determined that Marcum had been
discharged for misconduct.
As a basis for this conclusion, the
Commission cited to Marcum’s prior disciplinary history and her
having left the plant on June 23, 2003, without permission of
her supervisor and despite having been ordered to work that day.
Our decision in the present case turns upon the application of
KRS 341.370, which provides, in relevant part, as follows:
(1) A worker shall be disqualified from
receiving benefits for the duration of any
period of unemployment with respect to
which:
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. . . .
(b) He has been discharged for misconduct or
dishonesty connected with his most recent
work, . . . .
KRS 341.370(6) defines “discharge for misconduct” as
including, but not limited to, “unsatisfactory attendance if the
worker cannot show good cause for absences or tardiness,” and
“refusing to obey reasonable instructions [.]”
Although the
employer bears the burden of establishing misconduct (See
Shamrock Coal Company, Inc. v. Taylor, 697 S.W.2d 952, 954
(Ky.App. 1985)), the employee has the overall burden of proof
and persuasion to show good cause for the absences or tardiness.
“Good cause usually is regarded as a reason sufficient
in ordinary circumstances of an urgent and personal nature to
justify leaving employment[.]”
Cantrell v. Kentucky
Unemployment Insurance Commission, 450 S.W.2d 235, 237 (Ky.
1970) (quoting In re Lauria's Claim, 18 A.D.2d 848, 236 N.Y.S.2d
168 (Sup.Ct.App.Div. 1963)).
In order to be ineligible for
unemployment benefits, a fired worker's conduct must evince some
bad faith or give rise to an inference of culpability in the
form of willful or wanton conduct.
See generally Shamrock Coal,
supra.
Ford presented documentary and testimonial evidence
concerning Marcum’s disciplinary history for attendance problems
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and established that she had been warned that further breaches
of the company’s attendance policies may result in escalating
disciplinary measures.
In light of its finding that Marcum left
the plant on June 23 without permission, we must uphold the
Commission’s determination that Marcum failed to obey a
reasonable instruction and that she was discharged for
misconduct.
The Commission properly applied the applicable
unemployment compensation law to the facts of the case.
We are not persuaded by Marcum’s contention that she
properly left the plant on June 23 because she was under the
impression that after the company physician confirmed her 50
hour work-limitation she was authorized to leave the work site.
The Commission’s findings reflect that while Marcum was told to
report to the company physician on June 23, nevertheless, she
was also under an order to work that day.
Moreover, the
Commission’s findings reflect that even if she was under a 50
hour restriction, the company, and not Marcum, would schedule
the 50 hour week.
As stated by the Commission “[t]he claimant’s
prior disciplinary actions put her on notice that her job was in
jeopardy.
In such situations, it behooves the employee to make
a greater effort to ensure that instances pertaining to
attendance are forthright and beyond reproach.
Regardless of whether we would have held the same, we
are not permitted to substitute our judgment for the
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Commission's.
Our review is limited to the question of whether
the Commission misapplied the relevant unemployment benefits law
to the facts of the case, and we cannot say that it did.
We
therefore conclude that the Commission properly determined that
Marcum was not eligible to collect unemployment benefits due to
her misconduct, and the circuit court was correct in affirming
that decision.
For the foregoing reasons, the opinion and order of
the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Samuel G. Hayward
Louisville, Kentucky
BRIEF FOR APPELLEE FORD MOTOR
COMPANY:
R. Thad Keal
Carla Foreman Dallas
Prospect, Kentucky
BRIEF FOR APPELLEE KENTUCKY
UNEMPLOYMENT INSURANCE
COMMISSION:
Tamela A. Biggs
Frankfort, Kentucky
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