Commonwealth of Kentucky, Kentucky Unemployment Insurance Commission v. Carey Rennekamp ( 2022 )

RENDERED: OCTOBER 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0860-MR
COMMONWEALTH OF KENTUCKY,
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 20-CI-00944
CAREY RENNEKAMP AND
TRANSIT AUTHORITY OF
NORTHERN KENTUCKY APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE: JONES, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: The Commonwealth of Kentucky, Kentucky Unemployment
Insurance Commission (“KUIC”), appeals from the Kenton Circuit Court’s order
reversing its decision to deny unemployment benefits to Carey Rennekamp
(“Rennekamp”). For the reasons below, we reverse.
Rennekamp began working for the Transit Authority of Northern
Kentucky (“TANK”) in 2018 and was terminated on January 29, 2020, for
allegedly falsifying her timesheet. As the company’s marketing manager,
Rennekamp’s schedule was somewhat flexible, however, she was expected to work
at least forty hours a week and to accurately report the amount of time she worked.
On the morning of December 24, 2019, Rennekamp submitted her weekly
timesheet, anticipating she would work eight hours that day. But her plans
changed and Rennekamp left work early to attend mass with her family, never
updating her timesheet.
Rennekamp’s supervisors became aware of the discrepancy and
questioned her about the accuracy of her timesheets for the two weeks surrounding
the holidays. On January 17, Gina Douthat (“Douthat”), TANK’s Deputy General
Manager, sent an email to Rennekamp and another employee asking them to
review their timesheets. The email specifically noted that company policy required
employees to accurately report hours worked and if an employee reported eight
hours on their timesheet it was expected that they worked eight hours that day.
On January 20, Rennekamp met with Douthat to review changes to
her timesheet. Rennekamp had revised her timesheet to include additional hours
she had worked that week but had made no changes to reflect leaving early on
December 24. Douthat testified that she specifically questioned Rennekamp about
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the accuracy of her December 24 entry at this meeting.1 Rennekamp disputes this,
claiming she was unaware December 24 was the date at issue until being placed on
leave on January 28. According to Douthat, she asked Rennekamp if her
December 24 entry was correct and Rennekamp confirmed that she had worked
eight hours that day, even mentioning she may have left around 4:00 or 4:30 p.m.
to attend mass.
Douthat met with Rennekamp again on January 28 and informed
Rennekamp that falsifying timesheets was a terminable offense. On January 28,
Rennekamp was placed on leave. That afternoon, Rennekamp sent an email to
Douthat admitting she left early on December 24. Rennekamp alleged it was an
innocent mistake and she had forgotten mass time had moved up that day until her
sister reminded her. The next day, TANK terminated Rennekamp’s employment.
Rennekamp filed a claim for unemployment benefits which was
initially denied based upon a finding that Rennekamp had been discharged for
dishonesty connected with her work. She appealed and following a hearing, the
referee determined that Rennekamp was entitled to benefits. KUIC conducted a de
novo review and reversed the referee’s decision. It ruled that Rennekamp was
1
Douthat contradicted this statement at another point in her testimony, claiming it was at a
January 28 meeting where she specifically questioned Rennekamp about her December 24 entry.
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disqualified from receiving unemployment benefits based upon KRS2
341.370(1)(b), discharged for misconduct or dishonesty connected with her work.
Specifically, it held that pursuant to KRS 341.370(6), Rennekamp was
discharged for refusing to obey Douthat’s reasonable instruction that she review
her timesheets for accuracy. It also determined she was dishonest in failing to
accurately report her time. KUIC found Rennekamp’s claim of mistake not
credible considering the many opportunities she was given to verify and correct her
timesheet. It noted Rennekamp did not admit to falsely reporting her time until
after she was suspended.
The Kenton Circuit Court reversed, holding that Rennekamp’s
“misstatement of time amounted to a ‘good faith error in judgment or
discretion[.]’” The court found that there was “no evidence that [Rennekamp’s]
behavior was actually ‘dishonest;’ rather the evidence is overwhelming that it was
simply ‘mistaken.’” It noted that as soon as Rennekamp realized her error, she
attempted to correct it, crediting Rennekamp’s testimony over the findings of
KUIC. This appeal followed.
In Thompson v. Kentucky Unemployment Insurance Commission, 85
S.W.3d 621 (Ky. App. 2002), this Court set forth the applicable standard of review
of an administrative agency’s decision as follows:
2
Kentucky Revised Statutes.
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The judicial standard of review of an unemployment
benefit decision is whether the KUIC’s findings of fact
were supported by substantial evidence and whether the
agency correctly applied the law to the facts. Substantial
evidence is defined as evidence, taken alone or in light of
all the evidence, that has sufficient probative value to
induce conviction in the minds of reasonable people. If
there is substantial evidence to support the agency’s
findings, a court must defer to that finding even though
there is evidence to the contrary. A court may not
substitute its opinion as to the credibility of the
witnesses, the weight given the evidence, or the
inferences to be drawn from the evidence. A court’s
function in administrative matters is one of review, not
reinterpretation.
Id. at 624 (footnotes omitted).
We first note that Rennekamp has not filed an appellee brief. If an
appellee brief has not been filed within the time allowed, this Court may (i) accept
the appellant’s statement of the facts and issues as correct; (ii) reverse the
judgment if appellant’s brief reasonably appears to sustain such action; or (iii)
regard the appellee’s failure as a confession of error and reverse the judgment
without considering the merits of the case. CR3 76.12(8)(c). Upon review,
KUIC’s brief reasonably appears to sustain reversing the circuit court. With this in
mind, we will address the merits of the appeal.
KUIC argues the circuit court erred by reweighing the evidence,
assessing witness credibility, and substituting its judgment for KUIC’s. We agree.
3
Kentucky Rules of Civil Procedure.
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The circuit court determined no substantial evidence supported KUIC’s finding
that Rennekamp was dishonest in her time reporting. In doing so, it reevaluated
the evidence and made credibility determinations, actions outside of its purview as
a reviewing court. See Thompson, 85 S.W.3d at 624 (footnote omitted) (“A court’s
function in administrative matters is one of review, not reinterpretation.”).
For instance, the circuit court found Rennekamp was unaware
December 24 was the relevant date until the January 28 meeting, contradicting
KUIC’s finding that Douthat specifically questioned Rennekamp about her
December 24 timesheet at the January 20 meeting. As another example, the circuit
court held there was no evidence Rennekamp was being dishonest when she failed
to accurately report her hours worked on December 24. Instead, it found she had
simply been mistaken, crediting Rennekamp’s testimony over other evidence to the
contrary. KUIC found Rennekamp’s claim of mistake not credible based upon the
number of opportunities she had to verify and correct the error.
“As the fact-finder, the KUIC has the exclusive authority to weigh the
evidence and the credibility of the witnesses.” Thompson, 85 S.W.3d at 626. “If
there is substantial evidence in the record to support an agency’s findings, the
findings will be upheld, even though there may be conflicting evidence in the
record.” Kentucky Unemployment Ins. Comm’n v. Cecil, 381 S.W.3d 238, 245-46
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(Ky. 2012) (citation omitted). Here, substantial evidence supported KUIC’s
finding that Rennekamp was discharged for dishonestly reporting her time.
Douthat testified she specifically questioned Rennekamp about her
December 24 timesheet entry on January 20. While Rennekamp disputes this, it
was in KUIC’s discretion to believe Douthat’s testimony over Rennekamp’s.
Based upon this finding, Rennekamp had an entire week to verify and correct the
error. Because Rennekamp did not admit the error until after she was suspended
on January 28 and after ample time to investigate the December 24 entry’s
accuracy, KUIC found Rennekamp’s claim of mistake not credible. The circuit
court erred in reweighing the evidence and substituting its judgment for the
agency’s on this issue.
Having found that Rennekamp was discharged for dishonesty in
connection with her work, KUIC properly held she was disqualified from receiving
unemployment benefits. Pursuant to KRS 341.370(1)(b), “[a] worker shall be
disqualified from receiving benefits for the duration of any period of
unemployment with respect to which . . . [h]e has been discharged for . . .
dishonesty connected with his most recent work[.]” Because KUIC correctly
applied the law to the facts, the circuit court erred in reversing its decision. Cecil,
381 S.W.3d at 246 (“If the reviewing court concludes the rule of law was correctly
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applied to facts supported by substantial evidence, the final order of the agency
must be affirmed.”).
Finally, KUIC argues the circuit court erred in not considering its
additional reason for finding Rennekamp disqualified from receiving
unemployment benefits – that she was discharged for misconduct for refusing to
obey reasonable instructions under KRS 341.370(6). Because we reverse for the
above stated reasons, we need not address this argument.
JONES, JUDGE, CONCURS IN RESULT ONLY.
MAZE, JUDGE, CONCURS IN RESULT ONLY AND FILES
SEPARATE OPINION.
MAZE, JUDGE, CONCURRING IN RESULT: I agree with the
result reached by the majority, but I do so on different grounds. I agree with the
circuit court that the KUIC’s determination that Rennekamp was terminated for
dishonesty was not supported by substantial evidence. However, I must reluctantly
conclude that there was substantial evidence to support the KUIC’s finding that she
was terminated for failure to follow her employer’s reasonable instructions.
Hence, I join in the majority’s decision to reverse the circuit court’s order and
reinstate the KUIC’s order.
As an initial matter, I agree with the majority that Rennekamp’s
failure to file an appellee’s brief weighs against her in this appeal. Thus, the
majority properly focuses on whether KUIC’s brief reasonably sustains a reversal
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of the circuit court’s decision. CR 76.12(8)(c). Likewise, our standard of review
requires that we give considerable deference to the KUIC’s factual findings,
particularly in matters relating to weight and credibility of the evidence.
Thompson v. Kentucky Unemployment Ins. Comm’n, 85 S.W.3d 621, 624 (Ky.
App. 2002).
But unlike the majority, I agree with the circuit court that the KUIC’s
finding of dishonesty was not supported by substantial evidence. In its findings,
the KUIC disbelieved Rennekamp’s explanation that she made an unintentional
mistake in filling out her timesheet. However, the evidence was uncontradicted
that Rennekamp filled out and submitted her timesheet early on December 24, but
left work some two hours earlier than she had planned. In the proceedings before
the circuit court, TANK conceded that this error was unintentional and was not a
disqualifying event with respect to her entitlement to unemployment benefits under
KRS 341.370(6).
TANK makes much of Rennekamp’s later conduct in failing to correct
the erroneous entry. As discussed below, I believe that this supports the alternative
ground for disqualification. But I agree with the circuit court that the evidence
overwhelmingly supports a conclusion that Rennekamp was simply mistaken and
failed to appropriately correct the erroneous entry on her timesheet. Therefore, I
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would affirm the circuit court’s reversal of the KUIC’s decision based on
dishonesty.
The majority does not address the KUIC’s additional conclusion that
Rennekamp was discharged for misconduct for refusing to obey reasonable
instructions. The KUIC found that Ms. Douthat brought the timesheet discrepancy
to Rennekamp’s attention and specifically directed her to review the accuracy of
“holiday weeks,” including the week of December 24, 2019. Rennekamp filed a
revised timesheet for other days but did not correct the entry for December 24.
Even assuming that Rennekamp simply forgot about leaving early on
Christmas Eve, she was clearly instructed to closely scrutinize her entries for that
time period. The Referee noted that Ms. Douthat advised another employee of a
similar timesheet discrepancy, which was immediately corrected. Rennekamp did
not attempt to confirm her work hours on December 24 until after Ms. Douthat
confronted her nearly a month later. The KUIC interpreted this evidence to
support its conclusion that Rennekamp failed to appropriately review her timesheet
as directed.
Admittedly, disqualification from receiving unemployment benefits
seems like a harsh result. Rennekamp had received positive evaluations prior to
this incident and had no other disciplinary issues. This single lapse arose around a
major holiday when she was undoubtedly preoccupied with many other things.
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TANK could easily have decided that sanctions other than termination were
warranted. But given our standard of review, I cannot say that the KUIC’s
disqualification of Rennekamp on this ground was unsupported by substantial
evidence. Therefore, I must agree with the majority that the circuit court’s order
should be reversed on this basis.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.
Matthew P. Lynch
Frankfort, Kentucky
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