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Court of Appeals of Kentucky.


NO. 2011–CA–000248–MR

Decided: March 09, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  DIXON AND LAMBERT, JUDGES. BRIEF AND ORAL ARGUMENT FOR APPELLANT:  John Frith Stewart Crestwood, Kentucky BRIEF FOR APPELLEES:  Rochelle E. Boland Leslye M. Bowman Lexington–Fayette Urban County Government Lexington, Kentucky ORAL ARGUMENT FOR APPELLEES:  Rochelle E. Boland Lexington–Fayette Urban County Government Lexington, Kentucky



Paula B. Brown appeals from an order entered December 22, 2010, by the Fayette Circuit Court affirming the Lexington–Fayette Urban County Government (LFUCG) Civil Service Commission's (CSC) decision to uphold Brown's termination based upon five counts of insubordination and inefficiency.   The primary question on appeal is whether the CSC erred in refusing to admit evidence of discrimination and retaliation, which Brown claims was relevant to the question of whether her termination was justified.   For the foregoing reasons, we affirm the Fayette Circuit Court.

Brown was hired by LFUCG, Division of Building Inspection, in 2001 as a staff assistant.   Over the next eight years, Brown advanced to the position of acting administrative specialist senior and then to staff assistant senior, the position she held at the time of her termination from employment.   As a staff assistant senior, Brown was required to provide service to persons seeking permits from her department.   In addition to issuing permits, Brown was required to help answer the telephone, process paperwork, and keep records.

On May 1, 2008, Brown was waiting on a customer seeking a permit at the Division of Building Inspection.   In the course of providing this service, Brown got into an argument with her supervisor.   Brown became upset, grabbed her coat, and left the office without completing the customer's permit.

That afternoon, Brown's actions were reported to Human Resources Manager, Leslie Jarvis.   Meanwhile, Brown went to Jarvis's office and filed a complaint against her supervisor.   In the complaint, Brown claimed that her supervisor talked to her in a loud and angry tone while pointing his finger at her.   Jarvis referred Brown to the Employee Assistance Program (EAP) for her to speak to a neutral party.   Also, based upon emails that Brown had previously sent to other employees, Jarvis requested that the EAP conduct a “Fitness for Duty Evaluation” instead of a mandatory referral.   Based upon the customer complaint and the events that occurred on May 1, 2008, Brown was suspended for forty hours from her position for inefficiency and insubordination.   Brown's suspension began on June 3, 2008.

After the suspension, Brown returned to her former position.   Brown was subject to additional customer complaints for inefficiency and insubordination in October and November of 2008, arising from incidents with various customers.   No immediate suspensions followed these incidents.

However, on December 31, 2008, Brown was asked to resign.   After she refused to resign, charges for Brown's termination were filed with the CSC, which consisted of five counts of insubordination and inefficiency.

On April 29, 2009, the CSC held a hearing on the charges.   The hearing lasted approximately three hours with each side given an equal opportunity to present witnesses' testimony and other relevant evidence.   During the hearing, LFUCG presented six witnesses.   Three of these witnesses were customers who had previously sought permits from Brown and who testified that they received poor service from Brown with extensive delays.   The other three witnesses presented by LFUCG included Brown's direct supervisor and upper-management supervisors.   Brown's supervisors testified regarding customer and coworker complaints and regarding Brown's inadequate performance.

Brown called eight witnesses at the hearing on her behalf, including customers who were pleased with the service that Brown provided.   A coworker also testified who supported Brown's position.   Brown also sought to introduce evidence concerning the hostile work environment that she endured while employed at the Division of Building Inspections.   She further argued that her termination was both retaliatory and discriminatory.   However, the CSC limited her evidence to that which pertained to the five charges listed in her notice of termination.

On May 7, 2009, the CSC upheld Brown's termination, which she appealed to the Fayette Circuit Court.   On December 22, 2010, the Fayette Circuit Court entered an order affirming the CSC's decision.   This appeal follows.

The role of the CSC is to determine whether an employee violated the rules and procedures of employment.  City of Columbia v. Pendleton, 595 S.W.2d 718 (Ky.App.1980).   If the CSC finds that the employee violated its rules of employment, then the CSC may exercise its discretion in imposing an appropriate penalty.  Id. Whether the conduct violated the rules and procedures of employment is reviewable by the circuit court on appeal.   Kentucky Revised Statutes (KRS) 67A.290.

Judicial review of the CSC's administrative action is limited to whether the CSC's decision was arbitrary or capricious.  Am. Beauty Homes Corp. v. Louisville and Jefferson Co. Planning and Zoning Comm'n, 379 S.W.2d 450 (Ky.1964).   Arbitrariness has many facets, and relevant to this appeal is whether the CSC's findings of fact were supported by substantial evidence of a probative value.  Am. Beauty Homes Corp., 379 S.W.2d 450.   The Court, of course, reviews issues of law de novo.

Pursuant to KRS 67A.290(2), the circuit court's review is to be conducted as a trial “de novo.”  However, this does not mean that Brown was entitled to a new trial by the circuit court, which is essentially sitting as an appellate court.  Crouch v. Jefferson Co., Kentucky Police Merit Bd., 773 S.W.2d 461 (Ky.1988).   In Brady v. Pettit, 586 S.W.2d 29 (Ky.1979), the Supreme Court described the appellate proceedings in the circuit court where a de novo statute is at issue as follows:

In this proceeding in circuit court the burden of proof shifts to the discharged employee․  The trial court may not substitute its judgment for that of the administrative body, that is, there may not be a substitute punishment.   The trial court may find the discharged employee has failed to meet the burden of proof and affirm the action of the administrative board;  or if it is found that the employee has sustained the burden of proof, the trial court may set aside the punishment.

Brady, 586 S.W.2d at 33.

Ultimately, the circuit court's review is limited to a determination of whether the CSC's decision was arbitrary.  Id. Whether the decision was arbitrary looks to the decision being clearly erroneous because it was not supported by substantial evidence.  Crouch, 773 S.W.2d 461.   As noted, our review is also limited to these parameters.

The primary issue raised by Brown in this appeal is that the CSC erred by prohibiting her from presenting evidence of retaliation and discrimination as an “affirmative” defense to the charges filed against her.   Specifically, Brown tendered a three-ring binder full of documents at the close of the hearing, which the CSC agreed to review to determine its relevancy to the proceeding.   Apparently, some of the exhibits from the binder were admitted into the record of the CSC's proceeding.   Brown also argues that six of her designated witnesses were not allowed to testify although the record reflects that only Mayor Newberry was excluded by CSC ruling.   The other witnesses were not called to testify.   Brown argues their testimony should have been admitted by “avowel,” but does not explain how this would have been accomplished.   A summary of what each witness would have testified to was provided to the circuit court.

This Court has been provided no authority that mandates the admission of avowel testimony in administrative proceedings.   Likewise, Brown has failed to establish how she was prejudiced by the exclusion of the witness testimony or any exhibits that may have been tendered.

The administrative proceeding before the CSC was not a civil trial subject to the Kentucky Rules of Civil Procedure or Kentucky Rules of Evidence.   Rather, the hearing before the CSC is limited to the issues raised by the written charges, which in this case consisted of five counts.  KRS 67A.280(3).   While evidence of discriminatory or retaliatory conduct of company officials could be considered by the CSC in its determination of whether Brown violated employment rules or procedures, there exists no statutory or case authority requiring the same.   And, any allegations of discrimination and retaliation certainly stand as independent grounds for a wrongful discharge or civil rights action in state or federal court.   To the extent these claims do not address the merits of the charges brought against Brown, neither the CSC nor the circuit court committed reversible error by failing to consider this alleged evidence.

Based upon our review of the record on appeal, the ruling of the CSC was based upon and supported by substantial evidence.   Thus, the decision to terminate Brown was not arbitrary.

The order of the Fayette Circuit Court affirming the CSC ruling is affirmed.