Richard Devore v. Commonwealth of Kentucky Kentucky Unemployment Insurance Commission ( 2021 )

RENDERED: APRIL 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0229-MR
RICHARD DEVORE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 18-CI-005741
COMMONWEALTH OF KENTUCKY,
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION; AND
UNITED PARCEL SERVICE, INC. APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
ACREE, JUDGE: Richard DeVore appeals the January 15, 2020 order of the
Jefferson Circuit Court affirming the Kentucky Unemployment Insurance
Commission’s (“KUIC”) decision upholding the denial of his request for
unemployment benefits. After careful consideration, we affirm.
FACTS AND PROCEDURE
DeVore was employed by United Parcel Service Co.1 (“UPS”) as a
Flight Crew Scheduling Technician. As part of his job, he was authorized to
release crewmembers early from their shifts under certain circumstances.
However, if DeVore released a crewmember early, he was responsible for entering
a release code into UPS’s computer system reducing the number of hours for
which that crewmember would be compensated.
On May 19, 2018, DeVore released a crewmember from his shift six
hours early, but he did not enter the release code into UPS’s computer system.
This resulted in the crewmember remaining in paid status for his entire shift. As a
result, DeVore was terminated on May 25, 2018, for “falsification of
documentation.” (Trial Record (“T.R.”) at 100.)
DeVore filed for unemployment benefits on June 3, 2018 with the
local office of the Kentucky Division of Unemployment Insurance (“the
Division”). His claim for benefits was denied on June 20, 2018. (Id. at 115.) The
Division found that DeVore was disqualified from receiving benefits because he
“knowingly violated a reasonable and uniformly enforced rule of the employer.”
(Id.) The only evidence presented by UPS of disqualification was a form
1
DeVore identifies UPS as United Parcel Service, Inc.
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describing the reason for DeVore’s termination and an email between two UPS
employees.2 (Id. at 109-14.)
DeVore appealed to the Unemployment Appeals Branch. In his
appeal letter, DeVore acknowledged UPS had a policy allowing crewmembers to
be released from work early for a reduction in pay. However, he contended there
was no explicit policy forbidding him from allowing a flight crewmember to leave
early and still get paid for an entire shift. (Id. at 118.) A telephonic evidentiary
hearing was held before a referee on July 10, 2018. UPS was not present and
DeVore was the only person to testify. The following exchange took place:
Referee: Okay. When did they say that the document
falsification occurred; on what date?
DeVore: May 19, 2018.
Referee: Okay. And what did they say that you did on
that day that was the falsification of the
document?
DeVore: They said that in the computer I did not put a
release code for the crewmember.
Referee: What does that mean? I don’t understand you.
DeVore: And so, by -- by doing that, I violated their
policy.
Referee: Okay. What is it really -- what does it mean to
put a release code in the computer?
2
The email is between two apparent UPS employees and contains abbreviations and terminology
that this Court is unfamiliar with. We are unable to understand its meaning.
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DeVore: That means, I told a crewmember that he can be
released from duty for that particular date --
Referee: So, you sent someone home?
DeVore: -- or our timeframe.
Referee: You sent someone home?
DeVore: Yes.
Referee: Okay. And then, what do -- what does it mean
to not put the release code in? What were the
-- what was the effect of that?
DeVore: If I did not do that, it would be a pay issue.
Referee: So, they would be paid for the whole day?
....
Referee: Okay. On May 19th, 2018, did you fail to put
in the release code when you sent this crew
member home early?
DeVore: I did not put the release code up on the line.
Referee: Why not?
DeVore: Because at the time, you know, there was no
really written -- a policy or -- in my opinion, no
policy or rule that the company and you know,
in its training manuals that really prohibited
that. So, I had the option to either do it or do it
-- or not do it.
Referee: You had the option to falsify documentation?
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DeVore: Well, in my opinion, that wasn’t falsifying
documentation.
Referee: Okay. You sent someone home early and you
didn’t note that; why?
DeVore: It was that -- it was --
Referee: How is that not falsification?
DeVore: It was -- it was a discretion. You know -- but
just beforehand -- you know, before 2016, we
had the option to release a crew member and
that was even done by crew scheduling
management personnel.
....
Referee: All right, I’m going to -- I’m just going to go
ahead and cut to the heart of the matter. In your
appeal letter, it says that a -- a flight crew
member to request to be released from his
company obligations earlier than normal and
take a reduction in pay; is that correct?
DeVore: Correct.
....
Referee: If they go home early, they had to take a
reduction in pay; is that correct?
DeVore: Correct.
Referee: Okay. And you failed to put in the code to
indicate that he went home early?
DeVore: No, I did not put the code in there.
(Id. at 90-92.)
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Based on DeVore’s own admission, the referee concluded he was
discharged for dishonesty and disqualified him from benefits. (Id. at 146-47.)
DeVore appealed that decision to the KUIC. The KUIC affirmed the Referee’s
decision on September 12, 2018. (Id. at 42-43.) It found that DeVore intentionally
failed to enter the release code, which amounted to a deliberate falsification of
business records. (Id. at 157-158.) It further found DeVore’s allegation that he
had the discretion to allow an employee to leave work early without a reduction in
pay not credible. (Id.)
DeVore then sought judicial review from the Jefferson Circuit Court,
contending that substantial evidence did not support the KUIC’s decision to
disqualify him from benefits and that it improperly placed the burden of proof on
him to prove that he wasn’t disqualified. The circuit court affirmed the KUIC’s
decision on January 15, 2020. This appeal followed.
STANDARD OF REVIEW
“The standard of review of an unemployment benefit decision is
whether the Commission’s findings of fact were supported by substantial evidence
and whether the agency correctly applied the law to the facts.” Downey v. Ky.
Unemployment Ins. Comm’n, 479 S.W.3d 85, 88 (Ky. App. 2015). Substantial
evidence is “evidence which has sufficient probative value to induce conviction in
the minds of reasonable people.” Kentucky Unemployment Ins. Comm’n v. Cecil,
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381 S.W.3d 238, 245 (Ky. 2012). “If the reviewing court concludes the rule of law
was correctly applied to facts supported by substantial evidence, the final order of
the agency must be affirmed.” Id. at 246. “As the fact-finder, the KUIC has the
exclusive authority to weigh the evidence and the credibility of the witnesses.”
Thompson v. Kentucky Unemployment Ins. Comm’n, 85 S.W.3d 621, 626 (Ky.
App. 2002).
ANALYSIS
DeVore first argues that UPS failed to present any competent
evidence supporting the KUIC’s decision to disqualify him from benefits due to
dishonesty. This is merely a challenge to the sufficiency of the evidence. DeVore
places great emphasis on the fact that UPS did not appear at the evidentiary
hearing before the Referee to provide sworn testimony and that the only evidence it
presented was the aforementioned form describing why he was terminated and an
email. We conclude that DeVore’s own admissions of dishonesty constitute
substantial evidence supporting the KUIC’s decision.
The search for substantial evidence is not limited to what only one
party presents. It encompasses the record as a whole. It is not uncommon for a
party to present substantial evidence supporting his opponent’s position. That was
the case here. In determining whether DeVore was disqualified, the KUIC was not
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limited to reviewing only evidence presented by UPS, but was free to base its
decision on the admissions of DeVore. It did.
KRS3 341.370 provides, in relevant part:
(1) A worker shall be disqualified from receiving benefits
for the duration of any period of unemployment with
respect to which:
....
(b) He has been discharged for misconduct or
dishonesty connected with his most recent work,
or from any work which occurred after the first
day of the worker’s base period and which last
preceded his most recent work[.]
KRS 341.370(1)(b) (emphasis added). Accordingly, dishonesty is statutorily
disqualifying misconduct. Once it is shown that an employee has acted
dishonestly, the employee is disqualified regardless of whether the underlying
policy is uniformly enforced.
Here, the KUIC clearly reviewed the totality of the record, including
the evidentiary hearing before the referee. The KUIC based its disqualification on
DeVore’s acknowledgement that UPS had a policy requiring crewmembers to take
a reduction in pay if they were released early and his sworn admission to releasing
a crewmember without entering the release code into the computer system. This,
alone, is competent and substantial evidence supporting a finding of dishonesty.
3
Kentucky Revised Statutes.
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DeVore next contends that both the referee and the KUIC shifted the
burden of proof onto him and effectively required him to disprove his
disqualification. We disagree.
The employee seeking unemployment insurance “bears the overall
burden of proof regarding his entitlement to benefits.” Alford v. Kentucky
Unemployment Ins. Comm’n, 568 S.W.3d 367, 370 (Ky. App. 2018). However,
“the employer bears the burden of proof in establishing that the claimant should be
disqualified from receiving benefits because of misconduct.” Id.Regarding the referee, DeVore asserts that after he presented evidence
of qualification, the referee shifted the burden by continuing to question him on the
reason he was fired. In other words, DeVore contends that the referee should have
ended his inquiry once he submitted sufficient evidence of qualification of
benefits. However, a referee “shall, if necessary to secure full information on the
issues, examine each party who appears and witnesses.” 787 KAR4 1:110 Section
1(4)(a)(2). One issue before the referee was disqualification. To secure all
information necessary to resolve the issue, the referee was required to question
Devore on the reason for his termination. This is not burden shifting.
Likewise, the KUIC did not engage in improper burden shifting. The
KUIC, in its opinion, stated, “The employer trying to show a disqualification under
4
Kentucky Administrative Regulations.
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KRS 341.370 must bear the burden of proof by a preponderance of credible
evidence.” (T.R. at 157.) Accordingly, the correct standard was applied.
DeVore takes further issue with the fact that the KUIC found his
statement that he had the discretion to allow an employee to leave work early
without a reduction in pay not credible. He states that the referee (and therefore
KUIC) had “no reliable, evidence-based way to assess the credibility of his
explanation. KUIC’s decision to find that his testimony was not credible was
based wholly on the referee’s uneducated impression of Mr. Devore’s testimony
and in the total absence of any opportunity for Mr. DeVore to support his
testimony by cross-examining UPS witnesses.”
This Court fails to see how this constitutes burden shifting.
Nonetheless, KUIC is responsible for weighing the credibility of the evidence.
Here, DeVore admitted that employees were allowed to leave early, with a
reduction in their pay. He then contradicts his own testimony by stating he has the
discretion whether or not their pay is reduced. It is obvious to this Court why the
KUIC and the referee found this testimony not credible. A credibility assessment
is not based on the assessor’s expertise in the witness’s own field; it is based on
common human experience in assessing whether statements asserted as truth are
believable.
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We find that neither the referee or the KUIC shifted the burden to
DeVore.
CONCLUSION
Based on the foregoing, we affirm the January 15, 2020 order of the
Jefferson Circuit Court
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE UNITED
PARCEL SERVICE CO.:
John S. Friend
Robert W. “Joe” Bishop Tony C. Coleman
Lauren E. Freeman Amir J. Nahavandi
Anita E. Zipfel Louisville, Kentucky
Louisville, Kentucky
BRIEF FOR APPELLEE
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION:
Sam Flynn
Frankfort, Kentucky
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