Opinion
NO. 2011-CA-000670-MR
12-14-2012
KIM M. TRAVIS APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; OFFICE OF INSPECTOR GENERAL; AND KENTUCKY PERSONNEL BOARD APPELLEES
BRIEF FOR APPELLANT: Kim M. Travis, Pro Se Louisville, Kentucky BRIEF FOR APPELLEES: Muriel B. Varhely Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 09-CI-00835
OPINION
AFFIRMING
BEFORE: KELLER, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Kim M. Travis brings this pro se review from a March 22, 2011, Opinion and Order of the Franklin Circuit Court affirming a final order of the Kentucky Personnel Board. We affirm.
Appellant was employed by the Cabinet for Health and Family Services (Cabinet) as a Procedures Development Coordinator. Appellant became dissatisfied with her 2007 annual evaluation, and, consequently, she initiated two evaluation appeals (Nos. 2008-096 and 2008-107) before the Personnel Board. In Appeal No. 2008-096, appellant claimed that the Cabinet failed to follow applicable regulatory mandates in performing her 2007 evaluation, and in Appeal No. 2008-107, she claimed that the Cabinet improperly penalized her for not performing supervisory duties when none were assigned. In its final order, the Personnel Board set forth the following findings of fact:
1. The Appellant called herself as her first and only witness. The witness testified that she has been employed since March 1, 2007, as a Procedures Development Coordinator (Grade 13) in the Office of the Inspector General. Immediately prior to this position, she was an Administrative Specialist III (Grade 12).
2. The Appellant testified that when she began in her current position (on March 1, 2007) her supervisor was Marty Brame. The Appellant relates that when interviewing for the coordinator position, she was interviewed by Marty Brame and Paula Horn. She stated both these individuals told her she would have supervisory duties.
3. The Appellant then introduced her Exhibit 1. This is a Position Description (hereinafter PD) of the Procedures Development Coordinator position. The Appellant directly points out that of the seven duties and tasks listed to be performed by this position, the first one states, "[S]upervises clerical staff and coordinates the work of professional staff and functions of the regional office." This exhibit further goes on to list titles and position numbers of the employees to be supervised by this
position. In this case, those were both listed as "Administrative Secretary, Class Title 9038." 4. The Appellant claims—and the Appellee agrees—that during her tenure in this position, she never supervised anyone. 5. Apparently Marty Brame performed an interim evaluation for the Appellant sometime in April 2007. The Appellant then testified that Brame retired prior to the end 2007, and was not available to perform her year-end evaluation. Appellant claims that from the time she began her new job, on March 1, 2007, until Brame retired, the Appellant questioned as to what her duties entailed. The witness claims that Brame told her that she did not know what the position entailed. 6. Apparently, when it came time to perform the Appellant's year end 2007 evaluation, Betty Branham was acting on an interim basis in the position Brame had previously held. 7. The record reflects that Appellant received a year end 2007 rating on her evaluation of "highly effective," which is one of the two highest ratings that can be received. However, the Appellant testified that she sought reconsideration of this rating. She received no response from Branham regarding reconsideration and, therefore, the Appellant sought to contact Moses Young, whom she believed to be her second-line supervisor. 8. A series of e-mails (in Appellant's Exhibit 2) show the Appellant attempted to have her duties clarified by Betty Branham and, after being unsuccessful, requested reconsideration from Moses Young on February 18, 2008. The communication with Young involved the Appellant's dissatisfaction with the performance standards used by Branham to evaluate the Appellant and that she received no documentation. In this email, Travis additionally requests of Branham a copy of her new job duties/expectations. 9. The Appellant did not receive any further responses for her request for reconsideration from either Branham or Young.
10. Previously, the Appellant communicated with OIG personnel officer Roger Smiley on September 19, 2007. She again requested a copy of her job duties as outlined in the PD for the Procedures Development Coordinator. Smiley replied that he doubted that Brame allowed the Appellant the opportunity to do all the PD reflected, and also stated he doubted that the interim manager had any idea of the duties outlined in the PD.
11. The Appellant then commented on 101 KAR 2:180, affixed to her appeal form. This regulation governs the employee performance evaluation system.
12. The Appellant claims the following regulatory sections of 101 KAR 2:180 were not followed by the Cabinet:
• 101 KAR 2:180, Section 2: "[P]erformance evaluations shall be completed no later than 30 calendar days after the end of the annual performance period."The Appellant claims that Branham did not complete her year end evaluation within 30 days. The Appellant's Exhibit 3 indicates that she met with Branham on January 31, 2008. Although this is 31 days after the end of the rating period, the Hearing Officer does not feel this is a material breach (as it occurred one day after the breach).
• 101 KAR 2:180, Section 4(b): "[I]f the first-line supervisor has not supervised the employee for 90 calendar days during the performance year, the next-line supervisor who meets the 90-day requirement shall be the evaluator."Since Brame had retired prior to the end of 2007 and had been replaced by an interim employee (Branham), given the lack of proof as to how long Branham actually
supervised Appellant, it is unclear as to whether this provision was not followed.• 101 KAR 2:180, Section 5: "[T]he first-line supervisor shall establish a performance plan for each eligible employee no later than 30 calendar days after the start of the performance period."Since first-line supervisor Brame never provided such performance plan, it is apparent the Cabinet failed to follow this provision.
• 101 KAR 2:180, Section 6: "[T]he evaluator shall meet with the employee when completing the performance plan to discuss job duties and expectations."Although it appears evaluator Branham met with the Appellant after completing the evaluation, it does not appear that any evaluator ever met with the employee to complete the performance plan and to discuss job duties and expectations.
• 101 KAR 2:180, Section 7(d): "[T]he evaluator shall discuss measures to improve or enhance performance with the employee.There is no testimony that either Brame or Branham ever had these discussions with the Appellant.
• 101 KAR 2:180, Section 3 (Performance Planning) (1)(a)3: "[D]uties and expectations shall be in writing.There was no testimony to rebut the Appellant's claim that these were never provided to her in writing by either Brame or Branham.
• 101 KAR 2:180, Section 5(6)(b)—(Performance Evaluations and Ratings)—"[F]or the purpose of evaluating or managing the performance of the evaluator, the next line supervisor's signature shallcertify that he is aware of the evaluation and has reviewed it.The Appellant's unrebutted testimony shows that second line supervisor, Moses Young, never responded to the request for reconsideration and apparently never signed the Appellant's evaluation.
13. The Appellant further testified that the only time she saw the job duties of the Procedures Development Coordinator was when the year end 2007 evaluation occurred. She was not shown those during her April 2007 interim evaluation
. . . .
15. The Cabinet then proceeded with its case. The Appellee introduced without objection its Exhibit 1. This is an affidavit of Sandra Houchen, R.N., Deputy Inspector General within the Office of Inspector General. The affidavit states that there are five Procedures Development Coordinator positions statewide, with one being located in each respective regional office. She further states that the position of Procedures Development Coordinator was never intended to include supervisor duties, and the individuals currently employed with OIG in this position do not perform supervisory duties.
16. The Cabinet called as its first witness Samantha Windsor. She has been an Assistant Director for the Division of Health Care within OIG since November 2008. Previously, she served as Administrative Branch Manager for Quality and Assurance in the office. She corroborated the statements contained in Exhibit 1.
Ultimately, the Personnel Board concluded that the Cabinet failed to follow applicable regulations in conducting appellant's 2007 evaluation and that appellant was "technically penalized" for not performing supervisory duties in her position of Procedure Development Coordinator. However, the Personnel Board also "believe[d] the [Cabinet's] proof that no supervisory duties were ever intended of, nor are they being performed by, the persons holding" the positions of Procedure Development Coordinators. As a remedy, the Personnel Board ordered the Cabinet to amend the description of job duties for a Procedure Development Coordinator "to conform with actual duties," and the Cabinet to "instruct its supervisors to be familiar with the job duties of employees under their supervision, and to abide by the provisions of the employee performance evaluation plan."
Appellant, pro se, sought review of the Personnel Board's decision with the Franklin Circuit Court. In particular, appellant argued that the remedy provided by the Personnel Board was inadequate. Instead, appellant claimed entitlement to, inter alias, damages of $50,000 for pain and suffering, restoration of 225 hours of sick leave taken due to mental anguish, reimbursement for traveling expenses, 5 percent raise due to her completion of the Kentucky Certified Management Program, and transfer to another state merit position with identical pay and hours. By Opinion and Order entered March 22, 2011, the circuit court affirmed the final order of the Personnel Board. Our review follows.
Appellant, pro se, contends that the circuit court erred by affirming the Personnel Board's final order. In her pro se brief, appellant requested this Court to award her "$50,000 for intentionally [sic] emotional distress" and order her "transfer[ed] to another job." Appellant's Brief at 10. Also, appellant specifically claims the circuit court erred by:
(1) Finding petitioner did not raise the issues of a 5% increase for her completing the Kentucky certified management program (CMP) to the Board[,] (2) finding[] that the petitioner refused to sign her 2007 employee performance evaluation regarding her request for a reconsideration of her rating by her supervisors [, and] (3) failing to award the petitioner damages for her carrying her burden of proof of [sic] in affirming the personnel board's findings of fact, conclusion of law, and recommended order that appellant was technically penalized by not being given supervisory duties in her position of procedure development coordinator[.]Appellant's Brief at 5, 6, and 8.
As an appellate court, our review of an administrative agency's decision is limited and is concerned with arbitrariness. An administrative agency's decision is arbitrary if its findings are unsupported by substantial evidence or if the agency misapplied the law. Am. Beauty Homes Corp. v. Louisville & Jefferson County Planning and Zoning Comm'n, 379 S.W.2d 450 (Ky. 1964).
Here, we agree with the circuit court that the Personnel Board's final order was supported by substantial evidence of a probative value and that the Board did not misapply the law. Additionally, 101 Kentucky Administrative Regulations (KAR) 2:180 § 5 provides for a total of five possible ratings an employee may receive on an annual evaluation. These are, from highest to lowest, outstanding, highly effective, good, needs improvement, and unacceptable. Under 101 KAR 2:180 § 7, an employee may only pursue an appeal to the Personnel Board of an adverse annual evaluation if the employee's rating is "either of the two (2) lowest overall ratings." In this case, the record undisputedly reveals that appellant received a "highly effective" rating on her 2007 evaluation, which was not one of the two lowest ratings. Consequently, under 101 KAR 2:180 § 7, appellant did not have standing to file an appeal before the Personnel Board challenging her 2007 evaluation. The Board could have dismissed appellant's evaluation appeals.
In sum, we hold that the circuit court properly affirmed the Personnel Board's decision. See Vega v. Kosair Charities Comm., Inc., 832 S.W.2d 895 (Ky. App. 1992).
For the foregoing reasons, the Opinion and Order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kim M. Travis, Pro Se
Louisville, Kentucky
BRIEF FOR APPELLEES: Muriel B. Varhely
Frankfort, Kentucky