CURTIS GORDON, JR. v. CITY OF SHIVELY, KENTUCKY; AND SHIVELY CIVIL SERVICE COMMISSION
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RENDERED:
DECEMBER 15, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001700-MR
CURTIS GORDON, JR.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 04-CI-008609
v.
CITY OF SHIVELY, KENTUCKY; AND
SHIVELY CIVIL SERVICE COMMISSION
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
JOHNSON, JUDGE:
Curtis Gordon, Jr. has appealed from an opinion
and order of the Jefferson Circuit Court entered on July 15,
2005, denying his appeal from a September 14, 2004, findings and
order entered by the appellee, Shively Civil Service Commission
(the Commission), suspending Gordon from his duties as a Shively
police officer for a period of five months.
1
Having concluded
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
that the circuit court did not err in denying Gordon’s appeal,
we affirm.
On March 19, 2004, Gordon was involved in an
automobile accident while on duty.
in a matter of months.
This was his second accident
Following the accident, Gordon was
directed by his supervisor to go to Concentra, a medical care
facility, and a first report of accident was prepared by the
chain of command.
Gordon was examined at Concentra and released
that same day to return to duty, but was given the remainder of
the day off as administrative leave.
From March 19, 2004, through April 5, 2004, Gordon
appeared regularly for work.
On April 5, 2004, Gordon called in
sick and on April 6 and 7 he was given emergency vacation leave
at his request.
work.
April 8 and 9 were Gordon’s regular days off
On April 9, he called his supervisor, Sergeant Terry
Laun, and advised her that he was experiencing some soreness as
a result of his auto accident.
Sergeant Laun directed Gordon to
report to Concentra on April 10 to be evaluated and to provide a
doctor’s note upon his return to work.
April 10, 2004, was a
Saturday and Concentra was closed, so Gordon was directed by his
supervisors to go to the emergency room instead.
The emergency
room physicians prescribed medications and released Gordon.
Gordon was on workers’ compensation leave on April 11 and 12.
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On April 11, 2004, Gordon was instructed by his
supervisors to report back to Concentra on April 12 for a
follow-up examination.
He was seen by Dr. Sherrell Nunnelley
who prescribed additional medications, referred him to physical
therapy and placed restrictions on lifting, standing, bending,
pushing, and pulling.
city vehicle.
He was also restricted from driving a
Concentra referred Gordon to Dr. William Moss, an
orthopedic surgeon.
Dr. Moss did not renew the physical therapy
prescription, but prescribed medications in addition to those
received from the emergency room and Dr. Nunnelley.
appointment was scheduled for April 13.
A follow-up
On April 13, Sergeant
Laun advised Gordon to report for light-duty work at 2:00 p.m.,
but Gordon called and told her he was placed off work until
April 14 and he was shown as being on workers’ compensation for
April 13.
On April 14, Gordon contacted dispatch and advised
them that he was quite ill from taking all of his prescriptions.
He requested a sick day, but was given a vacation day instead.
He was told to return to Dr. Moss, but indicated that he would
be seeing his own doctor as well because he did not have any
confidence in Dr. Moss due to all the prescriptions he had been
given.
Gordon saw Dr. Moss on April 14 and was released to
return to light-duty work on April 15.
On April 15, 2004,
Gordon was seen by his own doctor, Dr. Chary, who found he was
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overmedicated and took him off work for April 15 and 16 and told
him he could return to work on April 17.
discontinued all of Gordon’s medications.
Dr. Chary also
April 17, 18, 19, and
20 were regularly scheduled days off work for Gordon.
Major Marty Kleier visited Gordon at home on April 15,
2004, and was shown the doctor’s note covering the April 15 and
16 absences and requested that Gordon fax the note to the
department, or get a copy of it.
Gordon advised Major Kleier
that Dr. Chary’s instructions were to schedule a follow-up
appointment if he did not feel better, and Major Kleier
confirmed the instructions with the doctor’s office.
Gordon
also informed Major Kleier that the appointment was scheduled
for April 20, his last scheduled day off work.
Gordon was
scheduled to return to work on April 21.
On April 21, 2004, Gordon called dispatch and advised
them he had missed his follow-up appointment the previous day,
as he had been confused regarding the date of the appointment.
He stated that the appointment had been rescheduled for the
following day, April 22.
Major Kleier informed Gordon that Dr.
Chary’s office had not faxed to the department a work excuse for
his absences of April 15 and 16..
Gordon called Major Kleier again on April 22, 2004,
and reported that Dr. Chary’s office had cancelled all
appointments due to a death in the doctor’s family.
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Gordon
stated that he thought another doctor was to come in to see him
in place of Dr. Chary.
Major Kleier told Gordon that the
department still had not received the doctor’s note covering his
absences on April 15 and 16.
Gordon faxed a note to Major
Kleier during their phone conversation and it showed Gordon was
excused from work on April 15 and 16 and was to return to work
on April 17.
Gordon advised Major Kleier that he thought Dr.
Chary’s office was making arrangements for another doctor to
cover Dr. Chary’s appointments on April 22, and that he would
notify the department as soon as the appointment was scheduled.
Gordon stated that the doctor’s office had told him they would
excuse his additional absences, and Major Kleier requested that
he obtain a note covering his absences of April 21 and 22.
After speaking to Gordon, Major Kleier called Dr.
Chary’s office and confirmed that the doctor’s appointments had
been cancelled due to a family emergency, and that Dr. Chary
would not be returning until May 6.
The office advised Major
Kleier that Gordon would be seen on May 6 when the doctor
returned.
Major Kleier called Dr. Chary’s office again on April
22 regarding the notes for April 15 and 16.
Major Kleier asked
whether there was another note regarding Gordon returning to
light-duty work because the note for April 15 and 16 released
Gordon to return to work on April 17.
Dr. Chary’s office
indicated that Gordon’s file did not say anything about light-
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duty work and noted that Dr. Chary apparently felt Gordon could
return to regular duty.
On April 23, 2004, Acting Chief Alan Eisenback sent
Gordon a letter suspending him without pay from duty as a
Shively police officer and giving Gordon notice that Eisenback
would recommend that Gordon be terminated for failure to report
to work for three consecutive days without just cause in
violation of the collective bargaining agreement.
Acting Chief
Eisenback also advised Gordon that he was in violation of the
Standard Operating Procedures (SOP) under Section 500.20, Rules
of Conduct, conformance to rules and regulations, inefficiency,
and conduct unbecoming.
Gordon was notified of his suspension
through a phone call from Major Kleier on April 26.
On April 27, 2004, Gordon obtained a second note from
Dr. Chary’s office.
This note related back to April 15 and
stated that Gordon was to be off work until May 11, 2004.
Gordon provided a copy of this note to the department when he
returned his city-owned property on April 27.
The Commission conducted a hearing pursuant to KRS
90.360 on July 1 and July 26, 2004.
On September 14, 2004, the
Commission issued its unanimous findings and order.
The
Commission found that Gordon was absent without leave from his
duties for three consecutive days, April 21, 22, and 23, 2004,
without just cause in violation of the collective bargaining
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agreement.
It found Gordon was in violation of the SOP for the
Shively Police Department Section 500.20, Rules of Conduct (2)
conformance to rules and regulations due to his untimeliness in
providing a doctor’s note covering his absences on April 15 and
16.
Lastly, the Commission found Gordon’s failure to appear for
work on April 21, 22, and 23, 2004, along with his failure to
provide a doctor’s note until after he was suspended, qualified
as conduct unbecoming in violation of the SOP, Rules of Conduct
(45) conduct unbecoming in that his conduct impaired the
operation and/or efficiency of the department because they were
unable to depend upon his presence for duty.
The Commission ordered that Gordon not be terminated
from his employment as a Shively police officer.
It further
ordered that Gordon’s suspension without pay be lifted as of
September 23, 2004, and that he be returned to duty as soon
thereafter as possible.
Finally, the Commission ordered that
Gordon have three vacation days restored for his future use.
Gordon appealed the Commission’s decision to the Jefferson
Circuit Court.
The circuit court found that the Commission’s
decision was not arbitrary and that it had not applied an
incorrect rule of law.
The circuit court further found that the
decision was supported by substantial evidence and denied
Gordon’s appeal.
This appeal followed.
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The circuit court correctly noted that on appeal of a
decision by an administrative agency the function of the circuit
court is to determine 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.2
“Substantial evidence is defined as
evidence that ‘when taken alone or in light of all the evidence
it has sufficient probative value to induce conviction in the
minds of reasonable [people].’”3
If the record compels a result
contrary to the decision of the administrative agency in light
of substantial evidence, the action of the agency is arbitrary
and unreasonable.4
“By ‘arbitrary’ we mean clearly erroneous,
and by ‘clearly erroneous’ we mean unsupported by substantial
evidence.
By ‘unreasonable’ is meant that under the evidence
presented there is no room for difference of opinion among
reasonable minds.”5
Gordon argues that the Commission’s decision was
clearly erroneous because it did not assign any weight to the
2
Lindall v. Kentucky Retirement Systems, 112 S.W.3d 391, 394 (Ky.App. 2003).
3
Kentucky Retirement Systems v. Heavrin, 172 S.W.3d 808, 814 (Ky.App. 2005)
(quoting Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.
1972)).
4
Id. (citing Bourbon County Bd. of Adj. v. Currans, 873 S.W.2d 836, 838
(Ky.App. 1994)).
5
Crouch v. Jefferson County, Kentucky Police Merit Board, 773 S.W.2d 461, 464
(Ky. 1988) (quoting Thurman v. Meridian Mutual Insurance Co., 345 S.W.2d 635,
639 (Ky. 1961)).
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doctor’s note of April 27 which Gordon provided to the
department excusing him from work from April 15 through May 11.
We disagree.
“In reviewing whether an agency’s decision is
supported by substantial evidence, the reviewing court must
adhere to the principle that the agency, as fact finder, is
afforded great latitude in its evaluation of the evidence heard
and the credibility of the witnesses appearing before it.”6
It
is not the province of this Court to substitute its judgment for
that of the Commission regarding the weight of the evidence on
questions of fact.
In this case, the Commission considered all
of the evidence presented to it as shown by its detailed order
in support of its decision to suspend Gordon.
As it is
permitted to do, the Commission did not find the final note
provided by Gordon four days after his suspension to be
credible.
Such a decision, however, does not make the action of
the Commission in suspending Gordon arbitrary under the facts of
this case.
Gordon essentially argues that the Commission’s
decision is not supported by substantial evidence based on the
fact that he was in constant contact with the department during
the time in question and relied upon his superiors’ assurances
that everything was fine under the circumstances and that there
is no evidence that he was absent for three days without just
6
Hughes v. Kentucky Horse Racing Authority, 179 S.W.3d 865, 871 (Ky.App.
2004).
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cause.
Again, we disagree.
The Commission had transcripts of
all telephone conversations between Gordon and the department as
well as between the department and Gordon’s physician’s office
and found that there was little mention of Gordon’s health
problems between April 21 and April 26.
Additionally, the
Commission had evidence in the April 15 note from Gordon’s
physician that Gordon had been released to return to work and
determined from this evidence that Gordon should have reported
to work on April 21 as scheduled.
This Court agrees with the
circuit court that such evidence was substantial and properly
supported the Commission’s decision to suspend Gordon on the
basis that he had been absent for three consecutive days without
just cause for such absences.
Based upon the foregoing, the opinion and order of the
Jefferson Circuit Court denying Gordon’s appeal of the
Commission’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Don Meade
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, CITY OF SHIVELY,
KENTUCKY:
Walter L. Cato, Jr.
Louisville, Kentucky
Mark L. Miller
Louisville, Kentucky
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