SURE FLAME PROPANE GAS INC APPELLANT v. GARY REED AND KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION APPELLEES

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Court of Appeals of Kentucky.

SURE FLAME PROPANE GAS, INC. APPELLANT v. GARY W. REED AND KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION APPELLEES

NO. 2010–CA–000996–MR

Decided: May 04, 2012

BEFORE:  COMBS AND MOORE, JUDGES;  LAMBERT, Double s SENIOR JUDGE. BRIEF FOR APPELLANT:  Eric L. Gibson Paducah, Kentucky BRIEF FOR APPELLEE GARY W. REED:  Jonathan R. Spalding Lebanon, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

This case involves the issue of unemployment benefits.   A referee originally granted benefits to Gary Reed, but the Unemployment Insurance Commission ruled against him and took them away.   The Washington Circuit Court agreed with the referee's decision and reinstated unemployment benefits to him.   Sure Flame Propane Gas, Inc., appeals from that order.   Following our review, we affirm.

Sure Flame hired Reed to drive a truck that delivered propane gas.   He received minimal training, and his trainer informed management that he was a slow learner.   Nonetheless, Reed was sent out to run routes on his own.   He found that the job entailed more than just driving the truck and filling up propane tanks of customers.   Reed informed his supervisor that he was uncomfortable with some of the duties.   Sure Flame did not give him additional training.   Because of the stress from the job, Reed was placed on medical leave for approximately two weeks.   He returned to work with his doctor's approval.   Sure Flame did not indicate to Reed that his job was in jeopardy.

On February 9, 2009, Reed's last day of work, he had problems with a tank that was overfilled.   He contacted his supervisor for advice on how to relieve the pressure on the tank.   Reed expressed reservations to his supervisor, Brian Finley, that he was anxious and concerned about his ability to do his job.   When Finley asked him if he wanted to quit his job, it is undisputed that Reed answered that he did not want to quit.   However, what happened next is disputed.   Reed contends that Finley, after speaking with his own supervisor, told Reed that “he did not know how to tell him this,” but that he should deliver his truck to Shelbyville, turn in the keys to Sure Flame's office, and find a ride home from Shelbyville.   Finley wholly contradicts that version of the facts and claims that he went to Reed's house to pick up the truck.

Reed believed that being told to park his truck in the middle of a work shift meant that he was being fired;  he did not return to work at Sure Flame.   He applied for unemployment benefits.   The notice of determination from the Kentucky Division of Unemployment Insurance (KDUI) on February 26, 2009, was a denial of benefits.   Its basis was that Reed had voluntarily separated from Sure Flame.   Reed appealed to KDUI's appeals branch.   An appeals referee conducted a hearing on April 16, 2009.   Four days later, the referee entered an order ruling that Reed was entitled to unemployment benefits because Sure Flame had initiated the separation.

Sure Flame appealed to the Kentucky Unemployment Insurance Commission.   On August 31, 2009, the Commission reversed the referee's ruling, holding that Reed had initiated the separation.   Reed appealed to the Washington Circuit Court.   On April 23, 2010, it reversed the Commission and held that Reed is eligible for unemployment benefits because Sure Flame initiated the separation.   This appeal follows.

In appeals from actions of administrative agencies, the circuit court's role is to “ensure that the agency did not act arbitrarily and that its decision is based on substantial evidence in the record[.]”  Kentucky Ret. Sys. v. Heavrin, 172 S.W.3d 808, 814 (Ky.App.2005).   Substantial evidence is that which “when taken alone or in the light of all the evidence has sufficient probative value to induce conviction in the minds of reasonable men.”   Kentucky State Racing Comm. v. Fuller, 481 S.W.2d 298, 308 (Ky.1972).   An agency has acted arbitrarily if its decision is contrary to that which the evidence in the record compels.  Heavrin, supra.   Our standard of review for a circuit court's review of an action by an administrative agency is whether the circuit court's findings are clearly erroneous.  Jones v. Cabinet for Human Resources, 710 S.W.2d 862, 866 (Ky.App.1986).

Sure Flame presents three arguments that are essentially merged into one.   It argues that the findings of the circuit court were unsupported by substantial evidence, stating in its brief that the circuit court's order represents “perhaps the starkest example of a reviewing court substituting its own opinion for that of an administrative fact finder.”   Appellant's brief at p.8.

The only evidence in the record consists of the testimony of Reed and Finley given under oath at the referee hearing.   The circuit court found that the evidence compelled a finding that Sure Flame terminated Reed's employment.   We agree.

Both Reed and Finley testified that Reed had stated to Finley that he was not quitting his job.   Finley testified that Sure Flame was not dissatisfied with Reed's job performance;  however, he did not dispute that he told Reed to park his truck in the middle of the work shift on his final day of employment.   Noting that Reed and Finley disagreed on some of the other details, the referee summarized Finley's admission:  “he admitted that he did tell him (Mr. Reed) to park it, and his testimony indicated that he meant for the statement to end the employee/employer relationship.”  (Appellant's brief, p. 3.) Both Finley and Reed also testified that no one from Sure Flame contacted Reed when he did not show up for work the following day.   The circuit court found that under these circumstances, no reasonable man would believe that he had not been fired.   A man whose job is to drive a truck cannot work if his truck is parked.   Sure Flame has offered no other evidence that compels the opposite result.   The referee made correct findings based on the evidence, and the only substituting of judgment that occurred in this case was not by the circuit court – but by the Commission in reversing the referee.

Therefore, we affirm the order of the Washington Circuit Court reinstating Reed's eligibility to receive unemployment benefits.

ALL CONCUR.

COMBS, JUDGE: