Opinion
No. 108,827.
2013-09-27
Doris A. LEMONS–DENNIS, Appellant, v. KANSAS EMPLOYMENT Security BOARD OF REVIEW, Appellee.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge. Doris A, Lemons–Dennis, for appellant pro se. Justin McFarland, special assistant attorney general, for appellee.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge.
Doris A, Lemons–Dennis, for appellant pro se. Justin McFarland, special assistant attorney general, for appellee.
Before BRUNS, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Doris A. Lemons–Dennis worked at Tee Pee's Smoke Shop for David J. Flax. After her employment ended, Lemons–Dennis filed for unemployment compensation benefits. In her application, Lemons–Dennis claimed that she had been fired. In response, Flax claimed that she voluntarily quit. Ultimately, the Kansas Employment Security Board of Review denied Lemons–Dennis' request for unemployment compensation benefits. The district court subsequently affirmed the Board of Review's decision, and Lemons–Dennis appealed to this court. Based on our review of the record on appeal in light of Kansas law, we affirm the Board of Review's decision.
Facts
For about two and a half years, Lemons–Dennis worked full time for Flax at Tee Pee's Smoke Shop. On September 30, 2011, Lemons–Dennis passed out at work and was taken by ambulance to the hospital. After her release later that day, she went home to rest.
Although it is undisputed that Flax called Lemons–Dennis at home the next day, the substance of the conversation is hotly contested. On the one hand, Lemons–Dennis claims that Flax fired her, while Flax claims he specifically told her that he was not firing her. Regardless, Lemons never returned to work at Tee Pee's Smoke Shop.
Shortly thereafter, Lemons–Dennis filed a claim for unemployment compensation benefits, and the Kansas Department of Labor sent notice of the claim to Flax. In response, Flax filled out a K–BEN form and an employer's separation statement. Flax also drafted a letter explaining his version of the events that led to Dennis–Lemons' separation from employment. The Kansas Department of Labor received Flax's documents on November 17, 2011.
Upon review of the documents, an examiner determined that Flax had submitted incomplete or insufficient information. Accordingly, the examiner granted Lemons–Dennis' request for unemployment compensation benefits, charging Flax's unemployment account. Flax timely appealed the examiner's decision to an appeals referee who held a telephone hearing on April 19, 2012. After reviewing the documents submitted by Flax, as well as hearing the testimony of both Lemons–Dennis and Flax, the referee reversed the examiner's decision in a written decision entered on April 24, 2012.
Lemons–Dennis appealed the referee's decision to the Kansas Employment Security Board of Review. In doing so, she presented the Board of Review with letters from additional witnesses that she had not provided to the referee. It appears, however, that the Board of Review did not consider the letters in making its decision. Nevertheless, on June 25, 2012, the Board of Review affirmed the referee's decision.
Lemons–Dennis then sought judicial review of the Board of Review's decision in the district court. At a hearing held on September 5, 2012, Lemons–Dennis argued that Flax had failed to properly complete the K–BEN form. In addition, she argued that statements made by Flax were inconsistent and that he had falsified information. She also argued that K.S.A. 44–706(a)(8)—which deals with situations in which a person voluntarily leaves his or her employment for a better job—might be applicable to her case. After hearing the arguments, the district court affirmed the Board of Review's decision in a journal entry issued on October 3, 2012.
Analysis
Issues Presented
On appeal, Lemons–Dennis contends that the Board of Review erred in finding that Flax complied with K.A.R. 50–3–1(d) in completing the K–BEN form because he left off important information such as her name, the separation date, and his company's name. Moreover, Lemons–Dennis challenges the factual finding of the Board of Review that she voluntarily quit her job at Tee Pee's Smoke Shop. Finally, Lemons–Dennis contends that the Board of Review erred by failing to consider additional evidence that was not presented to the appeals referee.
Standard of Review
Our review of a decision by the Kansas Employment Security Board of Review is governed by the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq. See K.S.A.2011 Supp. 44–709(i). The KJRA mandates that a reviewing court should grant relief if it determines that an agency or board erroneously interpreted or applied the law. K.S.A.2011 Supp. 77–621(c)(4); see also Redline Express, Inc. v. Kansas Employment Security Board, 27 Kan.App.2d 1067, 1068–69, 11 P.3d 85 (2000), rev. denied 270 Kan. 899 (2001). The findings of fact made by the Board of Review or by a referee are conclusive on judicial review so long as the record, taken as a whole, contains substantial evidence to support those findings. See Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 362–63, 212 P.3d 239(2009). “The party asserting the [Board of Review's] action is invalid bears the burden of proving the invalidity.” Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005); K.S.A.2011 Supp. 77–621(a)(1).
Compliance with K.A.R. 50–3–1(d)
K.A.R. 50–3–l(d) states that in responding to the employer's notice for unemployment compensation benefits, an “employer shall provide the following information”:
“(1) A complete explanation of the circumstances;
“(2) the date of separation, if any;
“(3) the signature and title of the person completing the form for the employer;
“(4) the employer's firm name and address;
“(5) the date the form is completed; and
“(6) any other information required by the form.”
Here, the K–BEN form submitted by Flax contains all the information about which Lemons–Dennis complains. Her name is on the form—she is designated the claimant—and Flax discusses her by name in the letter attached to the form. Flax's company's name is also on the form—the form was sent specifically to the company—and Flax listed his company as the entity for which he was writing the attached letter. Additionally, Flax wrote “9–30–11” in the form's blank for the last day worked. We note that the blank space for “separation date” is only to be filled in “if different from last day worked.”
In Beverly California Corp. v. State, 23 Kan.App.2d 680, 684, 934 P.2d 992 (1997), an employer failed to sign a K–BEN form and thereby failed to certify that the information contained in the form was correct. In the present case, however, Flax certified—by his signature—that the information listed in the form was correct. Thus, we conclude that the Board of Review did not err in finding that Flax properly completed the K–Ben form.
Substantial Evidence
In determining if substantial evidence supported the Board of Review's decision, we consider evidence that supports as well as evidence that detracts from the Board of Review's findings of fact. See Herrera–Gallegos, 42 Kan.App.2d at 361–62. Evidence is substantial when a reasonable person might accept it as sufficient to support a conclusion. 42 Kan.App. at 363. Importantly, when conducting this review, this court does not reweigh evidence or engage in de novo review. K.S.A.2011 Supp. 77–621(d).
There is conflicting evidence in the record regarding the substance of the telephone conversation between Flax and Lemons–Dennis on October 1, 2011. After weighing the conflicting testimony, the appeals referee found that Lemons–Dennis voluntarily quit her job at Tee Pee's Smoke Shop. Although Lemons–Dennis argues that Flax was lying when he testified that he never fired her, the referee who actually heard the testimony found Flax's account to be credible. Thus, considering all the evidence in the record—without reweighing it—we conclude that there was substantial evidence to support the Board of Review's conclusion.
We note that Lemons–Dennis also complains that Flax's account of the telephone conversation was hearsay. But K.A.R. 48–1–4(a)(2) states: “[T]he referee shall receive evidence logically tending to prove or disprove a given fact in issue, including hearsay evidence and irrespective of common law rules of evidence.” Accordingly, even if a portion of Flax's account was hearsay, it was not improper for the appeals referee to consider it.
Newly Presented Evidence
Lemons–Dennis also contends that the Board of Review should have considered three letters that she failed to submit to the appeal's referee. When the Board of Review reviews a decision from a referee, it “may affirm, modify or set aside any decision of a referee on the basis of the evidence previously submitted in the case; may direct the taking of additional evidence; or may permit the parties to initiate further appeal before it.” K.S.A.2011 Supp. 44–709(f)(6). Here, the Board of Review never directed the taking of additional evidence. Rather, it simply decided the case based on the evidence previously submitted in accordance with K.S.A.2011 Supp. 44–709(0(6). Thus, we conclude that the Board of Review did not err in failing to consider the letters that Lemons–Dennis presented, for the first time, to the Board of Review.
Argument raised for the First Time Before the District Court
Although Lemons–Dennis never presented the argument to the Board of Review, she argued to the district court that she was not disqualified for unemployment compensation benefits under an exception set forth in K.S.A.2011 Supp. 44–706(a)(8). This exception provides that a person is not disqualified for benefits if he or she left work to accept better work. On appeal, Lemons–Dennis contends that the district court erred in failing to consider this new argument. But in an action for judicial review from a decision by an agency or board, a party is limited to the issues raised below. See K.S.A.2011 Supp. 77–618; Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 411, 204 P.3d 562 (2009). Hence, the district court did not err in refusing to consider this an argument.
Affirmed.