Postal Presort, Inc. v. Nelson

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NOT DESIGNATED FOR PUBLICATION

No. 113,511

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

POSTAL PRESORT, INC.,
and
EMPLOYER ADVANTAGE,
Appellants,

v.

BRANDON N. NELSON
and
EMPLOYMENT SECURITY BOARD OF REVIEW,
Appellees.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN JOSEPH TERNES, judge. Opinion filed February
19, 2016. Affirmed.

Kurt A. Harper, of Sherwood, Harper, Dakan, Unruh & Pratt, LC, of Wichita, for appellants.

Ashlee N. Yager, and Glenn H. Griffeth, special assistants attorney general, of Legal Services,
Kansas Department of Labor, for appellees.

Before ARNOLD-BURGER, P.J., GREEN and STANDRIDGE, JJ.

Per Curiam: Postal Presort, Inc., and Employer Advantage (hereinafter
collectively referred to as Postal Presort unless specifically designated) petitioned for
judicial review of the decision by the Employment Security Board of Review (Board).
The Board determined that Brandon N. Nelson was eligible to receive unemployment
benefits. The Board concluded that Postal Presort had terminated Brandon's employment
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because he had littered cigarette butts by his car during his lunch break. The Board
determined that this did not constitute misconduct disqualifying Brandon from receiving
unemployment benefits under K.S.A. 2014 Supp. 44-706(b). The trial court affirmed the
Board's decision. On appeal, Postal Presort contends (1) that the Board failed to consider
all the evidence of Brandon's misconduct in violation of K.S.A. 2014 Supp. 77-621(c)(3);
(2) that the Board and the trial court misapplied the law in violation of K.S.A. 2014 Supp.
77-621(c)(4); (3) that the Board's decision was not supported by substantial evidence in
light of the record as a whole in violation of K.S.A. 2014 Supp. 77-621(c)(7), (d); and (4)
that even if the Board terminated Brandon for the cigarette butt incident alone, this
conduct constituted misconduct under K.S.A. 2014 Supp. 44-706(b).

Nevertheless, for reasons discussed below, all of Postal Presort's arguments fail.
As a result, we conclude that the trial court properly affirmed the Board's decision.

Postal Presort employed Brandon as an information technology (IT) print clerk
from February 13, 2013, to June 24, 2014. When Brandon started working at Postal
Presort, Postal Presort gave him a copy of the employee handbook. One rule in the
handbook states that "smoking where prohibited by company policy" may result in
discipline or discharge. In February 2014, Bryan Pulliam, the owner of Postal Presort,
sent an email to all employees explaining that many employees were littering their
cigarette butts instead of discarding their cigarette butts in the designated "cans at both
ends of the north side of the [Postal Presort] building." Pulliam requested that the
employees use the designated cans or else "[t]he alternative [would] be a total ban on
smoking on the premises except within personal cars."

On June 24, 2013, Brandon was sitting in his parked car smoking cigarettes during
his lunch break. Brandon threw his cigarette butts on the ground directly outside of his
driver's side door. Pulliam saw Brandon's discarded cigarette butts. Pulliam confronted
Brandon outside the Postal Presort building. Brandon did not deny that he had tossed the
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cigarette butts on the ground outside of his car. Pulliam told Brandon to go home so
Pulliam could think about what he was going to do. Pulliam terminated Brandon's
employment later that evening.

Brandon filed for unemployment benefits. Employer Advantage, the company
Postal Presort contracts with to handle human resource issues, completed a form for the
Kansas Department of Labor (DOL) contesting Brandon's eligibility for unemployment
benefits. On this form, Employer Advantage stated that Brandon was "discharged/fired."
Employer Advantage wrote that the final incident leading to Brandon's termination:
"Improper conduct—Smoking in this area is specifically prohibited [by] company
handbook except if done 'in their personal vehicle.' [T]hrew cigarette butts on the
ground." Employer Advantage attached the excerpt from Postal Presort's employee
handbook stating that an employee could be disciplined or discharged for smoking in
prohibited areas. Employer Advantage also attached Pulliam's February 2014 email about
the proper disposal of cigarette butts. Neither Postal Presort nor Employer Advantage
provided the DOL with any other information.

A DOL examiner held a telephone interview with Brandon regarding his
unemployment benefits eligibility. Brandon told the examiner that Postal Presort never
gave him a clear reason for his termination. Brandon further explained how Postal Presort
terminated him several hours after the cigarette butt incident.

The examiner determined that Brandon was eligible for unemployment benefits.
The examiner found that Postal Presort had not established that it terminated Brandon for
misconduct connected to his job as an IT print clerk as required under K.S.A. 2014 Supp.
44-706(b). The examiner also found that Postal Presort had submitted "insufficient or
incomplete" information. As a result, the examiner ruled that Postal Presort waived its
standing as a party to the proceedings unless it could establish excusable neglect under
K.S.A. 2014 Supp. 44-709(b).
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Postal Presort appealed the examiner's determination. It seems the examiner
reconsidered the original determination because the examiner issued a second
determination. Again, the examiner determined that Brandon was eligible for
unemployment benefits. The examiner determined that Postal Presort had failed to show
that Brandon had committed misconduct under K.S.A. 2014 Supp. 44-706(b). The
examiner explained that Postal Presort provided insufficient evidence "to establish the
claimant's conduct was a violation of a duty or obligation reasonably owed [to] the
employer as a condition of employment." This time, however, the examiner did not rule
that Postal Presort had waived its standing.

Postal Presort appealed the examiner's determination. An appeals referee held a
full evidentiary hearing. At the hearing, Postal Presort argued that it had terminated
Brandon not only for the cigarette butt incident, which it argued constituted misconduct
in and of itself, but also for other conduct it believed constituted misconduct under
K.S.A. 2014 Supp. 44-706(b). Evelin Nicholes, Postal Presort's administrative manager;
Annette Pulliam, Brandon's direct supervisor; and Bryan Pulliam testified on Postal
Presort's behalf.

Evelin testified that Postal Presort terminated Brandon because of his excessive
absenteeism, sloppy appearance, and attitude problems. During Evelin's testimony, Postal
Presort admitted Brandon's personnel file into evidence. This exhibit included
documentation of Brandon's disciplinary employee review which he received on August
15, 2013. Brandon's employee review stated that Postal Presort disciplined Brandon for
the following shortcomings: (1) having 13 unexcused absences; (2) having poor posture;
(3) having a poor attitude; (4) having less respect for female supervisors; and (5) having a
poor performance on a specific work task.

When asked to explain Postal Presort's policy on absences, Evelin explained that
when an employee misses work, simply calling in does not make the absence excused if
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the absence was unscheduled. That is, when employees call in the day they intend to take
off, whether they are sick or just want time off, Postal Presort considers that absence
unexcused. Evelin admitted that Brandon had fewer unexcused absences after his
employee review. Evelin testified that Brandon had only 5 unexcused absences in his
final 10 months at work. Evelin also admitted that in March 2014, Brandon received a
raise from $9.50 per hour to $12 per hour.

Concerning the day Postal Presort terminated Brandon, Evelin testified that Postal
Presort's weekly manager's meeting was held immediately after the cigarette butt
incident. Evelin testified that at that meeting, the managers discussed many of Brandon's
infractions as an employee supporting his termination. Evelin testified that she, Annette,
and Pulliam compiled a list of the infractions supporting Brandon's termination in emails
sent June 27, 2014, and June 28, 2014. Those emails, which were admitted into evidence,
stated that Postal Presort terminated Brandon because of the cigarette butt incident, his
excessive absenteeism, his frequent slouching, his "sloppy appearance," his lazy
behavior, his disrespectful and argumentative behavior, and his frequent printing
mistakes. Regarding Brandon's sloppy appearance, it seems that Brandon refused to wear
Postal Presort's company polo shirt to work.

Annette testified that Brandon had many problems at work, including frequent
slouching, inappropriate work attire, moodiness, and printing mistakes.

Pulliam testified that when management had a problem with an employee,
management would take the following series of progressive steps until the problem was
resolved or the employee was terminated: (1) that the employee's supervisor would
discuss the problem with the employee directly; (2) that management would talk about
the employee's problem at the weekly manager's meeting; (3) that Pulliam would discuss
the problem with the employee directly; (4) that management would write a formal
written sanction that became a part of the employee's record; (5) that management would
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make the employee take a paid day off to decide whether to fix the problem or quit; and
(6) that if necessary, Pulliam would terminate the employee. Pulliam testified that this
policy was not mandatory.

Pulliam further testified that Brandon frequently wore inappropriate work attire
and made printing mistakes. When asked about what was discussed at the manager's
meeting following the cigarette butt incident, Pulliam stated:

"Well, I took to the meeting his specific behavior moments before, which were so
blatantly and grossly against my very publicly known attitude about cigarette butts on the
ground, and how he sat in his car and I will say, nearly with disdain, listened to me ask
him a question about the brand of cigarettes he smokes, identified that I had found a
number of those in the area where he commonly parked and then I looked down at the
ground right behind him, where he had just discarded one that was still smoking, so I
took that to the meeting and let my managers know that that behavior alone, in light of
my known and public attitude on this, could constitute termination but I wanted more
information before I would make a decision, so we all talked about quite a number of
things which I would say included all of the items that later were put into Annette's . . .
infraction list. So the infraction list would consummate all manner of things we talked
about and this discussion about Brandon to come to a decision to terminate him was not
based on the one cigarette issue but a full 40 minutes of discussion about 6 of the highest
level people in the company."

Regarding Brandon's March 2014 pay raise, Pulliam testified that Brandon received the
raise because he gave Brandon more duties, not because Brandon had improved as an
employee.

Although none of Postal Presort's witnesses testified in detail about Postal
Presort's employee handbook, Pulliam's February 2014 cigarette email, or Brandon's
employee separation form, Postal Presort admitted each into evidence as part of
Brandon's personnel file. On Brandon's employee separation form dated June 30, 2014,
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Evelin marked that Postal Presort involuntarily terminated Brandon for a "violation of a
company policy" and "performance/neglect of duties." The employee separation form
also included boxes that could be marked if Postal Presort terminated an employee for
"excessive absenteeism," "insubordination," or any "other" reason. Evelin did not mark
those boxes on Brandon's employee separation form. Evelin did write "see attached
notes" on the form, but it seems that those notes are not included or have been
misidentified in the record on appeal.

Brandon testified on his own behalf. Brandon testified that Postal Presort
terminated him because of the cigarette butt incident. When asked about the company
polo shirt, Brandon testified that he would not wear the company polo shirt because he
had a problem keeping shirts tucked into his pants. Brandon explained that he believed
the polo shirt would not remain tucked. When asked about slouching, Brandon explained
that when he slouched he did so without realizing. Brandon also testified that he never
intentionally disrespected his supervisors. Finally, Brandon testified that other than his
issue with unexcused absences before his August 2013 employee review, he was unaware
of any conduct that was placing his job in jeopardy.

The referee issued a written decision a week after the hearing. The referee
affirmed the examiner's decision. The referee determined that Brandon was eligible for
unemployment benefits. The referee made this determination because she found that
because Postal Presort terminated Brandon for the cigarette butt incident alone, which she
found was not work related misconduct under K.S.A. 2014 Supp. 44-706(b). In
explaining her decision, the referee stated:

"The claimant [Brandon] testified after he was given a written warning about his
absences in August 2013; then he improved his absences. With regard to the cigarette
butt memorandum, he doesn't deny he may have received it but isn't sure he read it. He
was unaware his job was in jeopardy. [Pulliam] testified the claimant was discharged due
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to excessive absences and attitude. He stated he had the claimant in his office more than
any other employee. However there was no testimony the claimant was ever suspended or
given any other write-ups after August 13, 2013 to let the claimant know the employer
was dissatisfied with his absences and overall attitude. While the Referee does not
condone the claimant's lack of respect for the employer's property or the city in which he
lives by littering the parking lot and street with his discarded cigarette butts, the employer
has not established the claimant was discharged for misconduct connected with work."

Postal Presort appealed the referee's decision to the Board. The Board reviewed
the referee's decision and affirmed. The Board adopted the referee's findings of fact and
conclusions of law, stating that it "agree[d] with the previous decision made by the
Referee."

Postal Presort filed a petition for judicial review in the Sedgwick County trial
court. In Postal Presort's petition, Postal Presort argued that the Board erred "by adopting
the findings of fact and conclusions of law of the Referee, and in particular by failing to
find that the Employee was disqualified from receiving benefits because he was
discharged for misconduct, including violations of rules known to employee." The Board
responded that the trial court should affirm its decision.

The trial court held a hearing on Postal Presort's appeal. At the hearing, Postal
Presort argued that the Board erred because in light of the record as a whole, it clearly
terminated Brandon for violating its policies on cigarettes, posture, attire, attitude, and
certain printing policies. Postal Presort asserted that each violation constituted
misconduct because Brandon had a duty to follow those policies.

The Board argued that Postal Presort terminated Brandon because he threw
cigarette butts on the ground outside his car door during his lunch break. The Board
asserted that Postal Presort did not prohibit this conduct, noting that Pulliam's February
2014 cigarette email explicitly stated that smoking in one's personal car would be the
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only alternative available to the employee smokers if they did not stop littering cigarette
butts around the Postal Presort building. Accordingly, the Board asserted that it had
correctly determined that Brandon was eligible for unemployment benefits because
although Postal Presort terminated Brandon, Postal Presort did not terminate him for any
misconduct under K.S.A. 2014 Supp. 44-706(b).

At the end of the hearing, the trial court requested that Postal Presort and the
Board submit proposed decisions. Both parties submitted proposed decisions, reiterating
their arguments before the trial court. In the Board's proposed decision, the Board further
stressed that Postal Presort's termination of Brandon for "poor absences was an
afterthought for the purposes of an unemployment claim, and not the actual reason for
termination."

The trial court ultimately ruled that the Board did not err by determining that
Brandon was eligible for unemployment benefits. The trial court explained that the
evidence supported that Postal Presort terminated Brandon for the cigarette butt incident
alone and that littering did not constitute misconduct under K.S.A. 2014 Supp. 44-706(b).
In reaching this decision, the trial court stated:

"While reasonable people might disagree about the appropriateness of the
Agency's actions here, the Court cannot find that such actions were unreasonable, given
the information the Agency had in front of it. The Court has examined the Findings of
Fact made by the Agency . . . and find that they are supported by the testimony of the
parties at the hearing. The Petitioner has not sustained its burden to show that the Agency
acted in an arbitrary and capricious manner.
. . . .
"The record is clear that Claimant had a history of difficulties at work. It is also
clear that those issues had been addressed by the Employer. The Referee acknowledged
this in her Findings of Fact. . . . The Employer has the burden to show that the Referee
has erred in her evaluation of Claimant's behavior, and that the behavior should be
considered 'misconduct' under the law. The Employer has failed to show how Claimant's
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smoking behavior is sufficiently connected with Claimant's work, as set out by the
Referee."

Is Brandon Eligible for Unemployment Benefits?

Postal Presort argues that the Board erred by determining that Brandon was
eligible for unemployment benefits. In addition, Postal Presort also argues that the trial
court erred by affirming the Board's decision. On appeal, Postal Presort argues that the
Board erred in four ways.

First, Postal Presort argues that the Board violated K.S.A. 2014 Supp. 77-
621(c)(3) by failing to decide a fundamental issue requiring resolution, i.e., "whether
repeated, knowing breaches of [Postal Presort's] policies constituted 'misconduct.'"
Second, Postal Presort argues that both the Board and the trial court misapplied the law in
violation of K.S.A. 2014 Supp. 77-621(c)(4). Third, Postal Presort argues that substantial
evidence in light of the record as a whole does not support the Board's decision in
violation of K.S.A. 2014 Supp. 77-621(c)(7). Postal Presort argues that the evidence
before the Board proved that it terminated Brandon for multiple instances of misconduct,
not just the cigarette butt incident. Specifically, Postal Presort asserts that in addition to
the cigarette butt incident, it terminated Brandon because he violated its written policies
on absences, posture, proper work attire, and proper attitude when interacting with
supervisors and coworkers. Fourth, Postal Presort argues that each of the preceding
violations constitutes disqualifying misconduct under K.S.A. 2014 Supp. 44-706(b).

The Board, however, counters that substantial evidence in light of the record as a
whole supports that Postal Presort discharged Brandon for the cigarette butt incident
alone. The Board argues that the cigarette butt incident did not constitute misconduct
under K.S.A. 2014 Supp. 44-706(b). Thus, the Board asserts that Brandon is eligible to
receive unemployment benefits. The Board also argues that Postal Presort came up with
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its additional complaints about Brandon's absences, posture, attire, and attitude as an
"afterthought to rebut an unemployment claim." Therefore, the Board asks this court to
affirm the trial court's ruling and charge Postal Presort's unemployment account.
Standard of Review

Actions by the DOL must be reviewed in accordance with the Kansas Judicial
Review Act. (KJRA), K.S.A. 77-601 et seq., under K.S.A. 2014 Supp. 44-709(i). When
reviewing the agency's action, appellate courts exercise the same statutorily limited
review of the agency's action as does the trial court. An appellate court must treat the
appeal as though it had been made directly to the appellate court. Kansas Dept. of
Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010). As a result, an appellate
court must review the agency's factual findings to determine if such findings are
supported by substantial evidence when viewed "in light of the record as a whole."
K.S.A. 2014 Supp. 77-621(c)(7), (d). Any statutory interpretations made by the agency
are subject to de novo review. Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497,
500, 293 P.3d 707 (2013).

Under K.S.A. 2014 Supp. 77-621(c) of the KJRA, the court reviewing the agency
action shall not grant relief unless it determines that the agency violated one or more of
the provisions of K.S.A. 2014 Supp. 77-621(c)(1)-(8). The burden of proving the
invalidity of the agency action rests on the party asserting such invalidity. K.S.A. 2014
Supp. 77-621(a)(1).

The Board Considered All the Evidence of Misconduct

First, Postal Presort argues that the Board erred by not considering all the reasons
it terminated Brandon. Postal Presort argues that the Board ignored the evidence that
Brandon was terminated for violating its policies on absences, posture, proper work
attire, and proper attitude when interacting with supervisors and coworkers. Postal
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Presort asserts that the Board failed to consider whether repeated breaches of those
policies constituted misconduct. In its facts section, Postal Presort states that the Board
based its decision solely on the form Employer Advantage returned to the DOL. Again,
this form stated that Postal Presort terminated Brandon for the cigarette butt incident.
Postal Presort contends that this court must determine that Brandon was ineligible for
unemployment benefits because the Board did not "decide[] an issue requiring
resolution" in violation of K.S.A. 2014 Supp. 77-621(c)(3).

Nevertheless, the record on appeal shows that the Board considered all of the
evidence. Again, the Board adopted the referee's findings of facts and conclusions of law.
In the referee's decision, the referee found that Brandon had been reprimanded for
absences. The referee noted that Brandon's August 2013 employee review stated that he
"had 13 unexcused call-in absences which were unplanned and represented a 10%
absence ratio." The referee further noted that the employee review stated that Brandon
"had a negative attitude, poor posture consisting of slouching at his computer, didn't
appear as if he wanted to grow or get along with others, [did] not [have] as much respect
for females as males and [had] unsatisfactory archiving." Contrary to Postal Presort's
assertion, the referee never even referenced the form Employer Advantage submitted to
the DOL in its decision.

Thus, the referee considered all of Postal Presort's allegations about Brandon but
found that other evidence indicating that Postal Presort terminated Brandon for the
cigarette butt incident alone outweighed any contrary evidence. This was evidenced by
the referee's recognition that even though Pulliam testified that he terminated Brandon
because of absenteeism, Pulliam's testimony was contradicted by the fact that Brandon
had received no formal discipline for absenteeism following his August 2013 employee
review. In essence, Postal Presort seems to believe that because the referee did not find
that Brandon was terminated for absences, posture, attire, and attitude issues, the referee
did not consider the evidence. Yet, this was clearly not the case. The referee considered
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all of the evidence. As a result, the Board also considered all of the evidence when it
adopted the referee's decision. Accordingly, Postal Presort's argument is unpersuasive.

Postal Presort Has Not Established That Either the Board or the Trial Court Misapplied
the Law

Next, Postal Presort argues that the Board and the trial court misapplied the law in
violation of K.S.A. 2014 Supp. 77-621(c)(4). K.S.A. 2014 Supp. 77-621(c)(4) states that
the court shall grant relief if it determines that "the agency has erroneously interpreted or
applied the law." Postal Presort asserts that the Board misapplied the law because it failed
to decide an issue requiring resolution as stated in K.S.A. 2014 Supp. 77-621(c)(3) and
because substantial evidence in light of the record as a whole does not support its
decision as required by K.S.A. 2014 Supp. 77-621(c)(7). If this is a correct summary of
Postal Presort's arguments, we have addressed each of these arguments in later sections
of this opinion.

Postal Presort Has Failed to Prove That Substantial Evidence in Light of the Record as a
Whole Does Not Support The Board's Decision or That Brandon's Violations of Its
Policies on Absences, Posture, Attire, and Attitude Constitute Misconduct Under K.S.A.
2014 Supp. 44-706(b)

Again, in its brief, Postal Presort argues that in addition to the cigarette butt
incident, it terminated Brandon for violating its policies on absences, posture, proper
work attire, and proper attitude when interacting with supervisors and coworkers. Postal
Presort argues that the Board's decision violates K.S.A. 2014 Supp. 77-621(c)(7) because
in light of the record as a whole substantial evidence does not support the Board's
conclusion that Postal Presort terminated Brandon for the cigarette butt incident alone.
For this argument to succeed on appeal, however, Postal Presort must also prove that
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Brandon's alleged violations of its policies on absences, posture, attire, and attitude
constitute misconduct under K.S.A. 2014 Supp. 44-706(b).

Substantial Evidence in Light of the Record as a Whole Supports That Postal Presort
Terminated Brandon for the Cigarette Butt Incident Alone

The strongest evidence in support of Postal Presort's argument that it terminated
Brandon's employment not only for the cigarette butt incident but also for his unexcused
absences, poor posture, inappropriate work attire, and negative attitude toward
supervisors and coworkers was the testimony of Evelin, Annette, and Pulliam. They
testified that they all discussed those issues at their weekly manager's meeting held before
they terminated Brandon. Postal Presort contends that the discussion Evelin, Annette, and
Pulliam had about Brandon at the weekly manager's meeting was documented in the June
27, 2014, and June 28, 2014, emails. Those emails detail Brandon's numerous problems
at work, including that he had attendance, posture, "sloppy appearance," and attitude
problems. Moreover, Brandon's August 2013 employee review documents that Postal
Presort had previously reprimanded Brandon for his attendance, posture, and attitude
problems.

Nevertheless, other evidence in the record on appeal offset the weight of this
evidence. First, when Postal Presort initially contested Brandon's unemployment benefits
eligibility, it told the DOL that it terminated Brandon based on the cigarette butt incident
alone. Again, Employer Advantage stated on the form it submitted to the DOL that
Brandon was terminated for the following reasons: "Improper Conduct—Smoking in this
area is specifically prohibited [by] company handbook except if done 'in their personal
vehicle.' [T]hrew cigarette butts on the ground." Employer Advantage provided no other
explanation as to why Postal Presort terminated Brandon. Before the trial court, Postal
Presort addressed Employer Advantage's explanation, stating that "the person who filled
out the form focused on a particular event which was an event the day immediately
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[preceding] Mr. Nelson receiving notice of termination. . . ." Yet, this response does not
explain why the Employer Advantage employee decided to write down that Postal Presort
terminated Brandon for the cigarette butt incident alone.

Moreover, on appeal, Postal Presort has not argued that Employer Advantage
somehow erred in filling out this form. Instead, in the facts section of its brief, Postal
Presort contends that it is not bound by Employer Advantage's representation in this form
because the referee "confirmed that neither the agency nor the Employer were bound by
the initial recitations in the Employer's response to the unemployment claim" and because
the Board's attorney "conceded that the hearing officer was not bound by any limitations
contained in the Employer's initial form." This contention, however, is not completely
correct. Although the referee allowed Postal Presort to present evidence that it terminated
Brandon for reasons other than the cigarette butt incident, the referee never stated that
Postal Presort was not bound by what its agent Employer Advantage stated in the form
submitted to the DOL. The page Postal Presort cites to support this contention is merely
its own statement before the trial court that "[t]he referee at the time of the hearing
recognized that the referee was not bound by the written record solely and extended the
scope of the evidence to include all these different bases . . . ." Furthermore, the Board's
attorney explicitly stated that although the referee could look at information in addition to
the form Employer Advantage submitted to the DOL, Postal Presort was bound by
Employer Advantage's statements on the form.

Based on the preceding evidence, the logical conclusion is that Employer
Advantage wrote that Postal Presort terminated Brandon for the cigarette butt incident
because management in Postal Presort told Employer Advantage that it terminated
Brandon for the cigarette butt incident. Employer Advantage's and Postal Presort's failure
to include anything but the cigarette butt incident as an explanation for Brandon's
termination in the form submitted to the DOL supports the Board's assertion that the
other explanations for Brandon's termination were "an afterthought."
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Second, the employee separation form completed by Evelin states that Postal
Presort terminated Brandon only for a "violation of company policy" and
"performance/neglect of duties." Even though this form contained boxes Postal Presort
could use to mark if it terminated the employee for "excessive absenteeism,"
"insubordination," or any "other" reason, Evelin did not mark those boxes. Evelin's
failure to mark those boxes further suggests that the real reason for Brandon's termination
was the cigarette butt incident.

Third, the emails between Evelin, Annette, and Pulliam were sent after Pulliam
had terminated Brandon. Postal Presort terminated Brandon on June 24, 2014. Evelin,
Annette, and Pulliam sent the emails on June 27, 2014, and June 28, 2014. The fact the
emails were made after Postal Presort had already terminated Brandon supports the
Board's assertion that the additional reasons for terminating Brandon were simply an
afterthought. Furthermore, within the emails, Pulliam specifically stated that he wanted a
list of reasons to support Brandon's termination to include in Brandon's personnel file
"for use if he files [for] unemployment." The fact that Pulliam requested email responses
from Evelin and Annette specifically for the purpose of thwarting Brandon's potential
unemployment benefits claim indicates that Pulliam was seeking a laundry list of reasons
to bolster his decision to terminate Brandon.

Fourth, although Postal Presort presented evidence that Brandon continued to have
what it considered unexcused absences in 2014, Postal Presort never formally
reprimanded Brandon for any unexcused absences after his August 2013 employee
review. In fact, although evidence that Evelin, Annette, and Pulliam continued to take
issue with Brandon's posture and attitude after his August 2013 employee review exists,
it seems that Postal Presort never again formally reprimanded Brandon for those
problems after the August 2013 review. Accordingly, Postal Presort's failure to discipline
Brandon for absences, posture, attire, or attitude even once during his final 10 months of
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employment strongly supports (1) that those problems were no longer serious problems
and (2) that those problems were not the real reason Postal Presort terminated Brandon.

Fifth, the fact Postal Presort gave Brandon a 26.3% raise in March 2014
inconsistent with Postal Presort's assertion that Brandon was consistently violating its
policies on absences, posture, attire, and attitude. At the hearing before the referee,
Pulliam suggested that Brandon received the raise because he had assigned Brandon more
tasks, not because Brandon improved as an employee. Yet, why would Postal Presort
assign Brandon more work if he was incapable of performing his current tasks without
violating organizational rules? Why would Postal Presort assign Brandon more work if he
regularly had unexcused absences? If Brandon frequently had unexcused absences, then
assigning him more work would only result in additional unplanned work for his
coworkers who had to take over his work when he was unexpectedly absent. In total, the
raise was inconsistent with Postal Presort's assertion that Brandon was a subpar
employee.

Sixth, Postal Presort did not follow its own six-step procedure for dealing with
employee problems. Instead, during the confrontation over the cigarette butts, Pulliam
told Brandon to go home. An employee being forced to take a paid day off is the fifth
step of Postal Presort's six-step procedure. This action in addition to the fact that Brandon
was terminated just a few hours after the cigarette butt incident supports the
determination that Postal Presort terminated Brandon for the cigarette butt incident alone.

In summary, despite Evelin's, Annette's, and Pulliam's testimony that Brandon was
terminated not only for the cigarette butt incident but also for his unexcused absences,
poor posture, inappropriate work attire, and negative attitude, the following evidence
suggests otherwise: (1) that Postal Presort's agent, Employer Advantage, submitted a
form to the DOL stating that Brandon was terminated because of the cigarette butt
incident; (2) that Brandon's employee separation form completed by Evelin stated that
18

Brandon was terminated because of a "violation of company policy" and
"performance/neglect of duties" but not for "excessive absenteeism," "insubordination,"
or any "other" reason; (3) that the emails between Evelin, Annette, and Pulliam were
made after Pulliam had already terminated Brandon, and Pulliam specifically stated that
he wanted a list of reasons to support Brandon's termination in case Brandon filed for
unemployment benefits; (4) that Postal Presort never formally disciplined Brandon for
any infraction following his August 2013 employee review; (5) that Postal Presort gave
Brandon a raise in March 2014; and (6) that Postal Presort did not follow its own six-step
procedure when it terminated Brandon.

As previously detailed, to successfully argue that the Board erred, Postal Presort
must prove that substantial evidence in light of the record as a whole does not support the
Board's decision. So long as substantial evidence in light of the record as a whole support
the agency's evidentiary findings, this court will not reweigh the evidence the agency's
findings rests upon. See K.S.A. 2015 Supp. 77-621(c)(7), (d); Wiehe v. Kissick
Construction Co., 43 Kan. App. 2d 732, 741-42, 232 P.3d 866 (2010). Here, the only
evidence that fully supports Postal Presort's explanation for why it terminated Brandon is
the testimony of Evelin, Annette, and Pulliam. Given the referee's findings, which the
Board adopted, the referee clearly made a credibility determination that other evidence
outweighed this testimony. Based on all of the evidence indicating Postal Presort
terminated Brandon for the cigarette incident alone, this determination was reasonable in
light of the record as a whole. Accordingly, the Board did not err and the trial court did
not err in affirming the decision of the Board.

Assuming arguendo that even if substantial evidence in light of the record as a
whole does not support the Board's decision, Postal Presort's argument that Brandon's
alleged violations of its policies on absences, posture, attire, and attitude constitute
misconduct under K.S.A. 2014 Supp. 44-706(b), we consider and reject it.

19

Under K.S.A. 2014 Supp. 44-706(b), an employee does not qualify for
unemployment benefits if that employee "has been discharged or suspended for
misconduct connected with the individual's work." Misconduct constitutes any

"violation of a duty or obligation reasonably owed the employer as a condition of
employment including, but not limited to, a violation of a company rule, including a
safety rule, if: (A) The individual knew or should have known about the rule; (B) the rule
was lawful and reasonably related to the job; and (C) the rule was fairly and consistently
enforced." K.S.A. 2014 Supp. 44-706(b)(1)(A)-(C).

On appeal, Postal Presort argues that Brandon committed misconduct as outlined
under K.S.A. 2014 Supp. 44-706(b)(1)(A)-(C) by violating its written policies on
absences, posture, attire, and attitude. Postal Presort argues that Brandon knew about the
policies as required by K.S.A. 2014 Supp. 44-706(b)(1)(A), the policies were reasonably
related to his job as required by K.S.A. 2014 Supp. 44-706(b)(1)(B), and the policies
were fairly and consistently enforced as required by K.S.A. 2014 Supp. 44-706(b)(1)(C).

It seems that Postal Presort has met its burden to prove prong (A) and (B) of
K.S.A. 2014 Supp. 44-706(b)(1). Postal Presort's employee handbook states that an
employee may be disciplined or discharged for the following behaviors: (1)
"[i]nsubordination"; (2) "[f]ailure to maintain personal habits so as to not be offensive to
others"; (3) "[f]ailure to demonstrate a sincere ongoing effort to maintain a good working
relationship with all other employees, supervisors and customers by dealing effectively
with individual differences"; (4) "[u]nauthorized or unexcused tardiness or absences from
work"; (5) "[i]ncidents of poor judgment"; and (6) "[v]iolations of company policies."

Because the employee handbook policies are very broad, the policies arguably
encompass any misconduct concerning unexcused absences, poor posture, inappropriate
work attire, and negative attitude. More importantly, Postal Presort certainly put Brandon
on notice of its policies regarding unexcused absences, poor posture, and negative
20

attitude when it disciplined Brandon at his August 2013 employee review. Furthermore,
each of Brandon's alleged policy violations relate to his job as a Postal Presort employee.

Nevertheless, it is unclear whether any of those violations constitute misconduct
under K.S.A. 2014 Supp. 44-706(b) because Postal Presort has failed to adequately brief
whether it fairly and consistently enforced its policies as required under prong (C) of
K.S.A. 2014 Supp. 44-706(b)(1). In its brief, Postal Presort simply asserts that it fairly
and consistently enforced its policies without any additional analysis or explanation.
When an appellant makes a conclusory statement without any additional argument or
evidence, that appellant has abandoned the argument. See RAMA Operating Co. v.
Barker, 47 Kan. App. 2d 1020, 1036, 286 P.3d 1138 (2012) "holding that a conclusory
argument without explanation is insufficient to avoid the rule that a point raised
incidentally in a brief and not argued therein is abandoned on appeal."

As a result, Postal Presort has abandoned its argument that Brandon's violations of
its policies on absences, posture, attire, and attitude constitute misconduct because it has
failed to explain how it fairly and consistently enforced its policies. On the record before
us, faced with only conclusory allegations and unsupported factual assertion, we
determine that Postal Presort's argument is unpersuasive.

Finally, because Postal Presort has failed to establish (1) that the Board failed to
consider all evidence of misconduct, (2) that the Board or the trial court misapplied the
law, or (3) that the Board's decision is not supported by substantial evidence, the only
way Postal Presort can successfully argue that the Board erred was by proving that the
cigarette butt incident constituted misconduct under K.S.A. 2014 Supp. 44-706(b).

As previously detailed, the Board adopted the referee's decision that littering
cigarette butts did not constitute misconduct disqualifying Brandon from receiving
unemployment benefits under K.S.A. 2014 Supp. 44-706(b). On appeal, Postal Presort
21

argues that the Board erred by adopting the referee's decision because Brandon
committed misconduct by knowingly breaking its policy on littering cigarette butts.
Nevertheless, there are several problems with Postal Presort's argument.

First, as with Postal Presort's argument that Brandon's violations of its policies on
absences, posture, attire, and attitude constitute misconduct, Postal Presort has abandoned
any argument that the cigarette butt incident constituted misconduct. In its brief, Postal
Presort argued that Brandon committed misconduct under K.S.A. 2014 Supp. 44-
706(b)(1)(A)-(C) because he knew about certain company policies, those policies were
related to his job, and those policies were fairly and consistently enforced. Yet, Postal
Presort made only conclusory statements concerning how it fairly and consistently
enforced the cigarette butt policy. Given that Postal Presort has failed to provide this
court with any information on how it fairly and consistently enforced its cigarette butt
policy, Postal Presort has abandoned its argument that Brandon committed misconduct by
littering his cigarette butts. See RAMA Operating Co., 47 Kan. App. 2d at 1036.

Next, even if Postal Presort had not abandoned its argument, Postal Presort's
argument that Brandon committed misconduct disqualifying him from receiving
unemployment benefits by littering his cigarette butts would still fail because Postal
Presort's own policies did not prohibit Brandon's conduct. Under K.S.A. 2014 Supp. 44-
706(b)(1)(A), an employee's action constitutes misconduct only if the employee "knew or
should have known about the rule." The Postal Presort employee handbook states that an
employee may be disciplined or discharged for "smoking where prohibited by company
policy." Brandon was not terminated for smoking in a place prohibited by Postal Presort;
thus, this rule is inapplicable for purposes of determining whether Postal Presort
terminated Brandon for misconduct. Moreover, the policy regarding littering cigarette
butts in Pulliam's February 2014 email did not prohibit Brandon's conduct. In Pulliam's
email, Pulliam stated that if the employees did not stop littering their butts around the
outside the building he would prohibit smoking completely except in employees' personal
22

vehicles. Here, Brandon was smoking in his own car and littering the cigarette butts next
to his car. Brandon was not littering next to the Postal Presort building.

Thus, Brandon did not explicitly violate Pulliam's request. It is also worth noting
that Pulliam's email never stated that littering cigarette butts could result in discipline or
discharge. As a result, the Board did not err in determining that the cigarette butt incident
did not constitute misconduct because under K.S.A. 2014 Supp. 44-706(b) no Postal
Presort policy prohibited Brandon's conduct.

Finally, the record on appeal clearly shows that Brandon's actions during the
cigarette butt incident did not constitute misconduct under K.S.A. 2014 Supp. 44-706(b)
because littering was wholly unrelated to his job as an IT print clerk. For an employee to
be disqualified from receiving unemployment benefits under K.S.A. 2014 Supp. 44-
706(b), the misconduct must have been connected to the individual's work. Additionally,
the misconduct must have constituted "'a violation of a duty or obligation reasonably
owed the employer as a condition of employment.'" Transam Trucking, Inc. v. Kansas
Dept. of Human Resources, 30 Kan. App. 2d 1117, 1122, 54 P.3d 527 (2002) (quoting
K.S.A. 2001 Supp. 44-706[b][(1]). Regarding alleged misconduct that occurred in an
employee's private life, our Supreme Court has previously held:

An employee's conduct off the working premises and outside the course or scope
of his employment is generally not considered misconduct in connection with
employment. There are circumstances where the conduct is so closely connected with the
business interests of the employer as to warrant disqualification for unemployment
benefits. . . . There is no merit to the argument that an act of misconduct relating to the
private life of an employee is connected with his employment. The fundamental issue is
whether the misconduct adversely affected the employee's ability and capacity to perform
his duties. National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan.
678, 686, 772 P.2d 786 (1989).
23

In this case, Brandon's act of littering his cigarette butts on the ground outside his
driver's side door was unconnected to his work as an IT print clerk. Clearly, Brandon's
smoking and littering habit had nothing to do with his job.

Moreover, Brandon was not working when he littered the cigarette butts. Brandon
littered the cigarette butts during his lunch break. In fact, it is unclear from the parties'
arguments whether Brandon littered the cigarette butts in a private parking lot owned by
Postal Presort or in a public parking space owned by the City of Wichita. Under the
standard dictated by our Supreme Court when an employee has allegedly committed
misconduct while not at work, Brandon's action of littering cigarette butts cannot
constitute misconduct. Nothing in the record on appeal indicates that Brandon's littering
was closely connected to his job or adversely affected his ability and capacity to perform
his job. Most importantly, in its brief, Postal Presort never argues that Brandon's littering
was connected to his job or adversely affected his ability to perform his job. Postal
Presort's only argument is that Brandon committed misconduct because Brandon violated
its well-known policy on littering cigarette butts. Thus, the Board did not err by
determining that the cigarette butt incident did not constitute misconduct under K.S.A.
2014 Supp. 44-706(b) as the incident was completely unconnected to Brandon's duties as
an IT print clerk.

For the foregoing reasons, the Board correctly adopted the referee's decision that
Brandon was terminated but not for misconduct under K.S.A. 2014 Supp. 44-706(b)(1).
Accordingly, the trial court properly affirmed the Board's decision.

Affirmed.