Hughes v. Kentucky Horse Racing Authority, No. 2002-CA-002580-MR.

• Citation: 179 S.W.3d 865
• Decision Date: 23 April 2004
• Docket Number: No. 2002-CA-002580-MR.
• Parties: Richard E. HUGHES, Appellant, v. KENTUCKY HORSE RACING AUTHORITY, Successor to the Kentucky Racing Commission,<SMALL><SUP>1</SUP></SMALL> and Kentucky Personnel Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

179 S.W.3d 865

Richard E. HUGHES, Appellant, v. KENTUCKY HORSE RACING AUTHORITY, Successor to the Kentucky Racing Commission,¹ and Kentucky Personnel Board, Appellees.

No. 2002-CA-002580-MR.

Court of Appeals of Kentucky.

April 23, 2004.

Herbert L. Segal, Everett C. Hoffman, Segal Stewart Cutler Lindsay Janes & Berry, PLLC, Louisville, KY, for appellant.

J. Bruce Miller, J. Bruce Miller Law Group, Louisville, KY, for appellee Kentucky Horse Racing Authority.

No Brief for appellee Kentucky Personnel Board.

Before MINTON and SCHRODER, Judges; MILLER, Senior Judge.²

OPINION

MINTON, Judge.

Richard E. Hughes appeals the decision of the Franklin Circuit Court that reversed the order of the state Personnel Board. The Personnel Board found the Kentucky Racing Commission's (KRC) termination of Hughes's employment for misconduct to be excessive and modified punishment to a thirty-day suspension without pay. The circuit court disagreed, ruling that the Personnel Board had acted arbitrarily. We reverse the circuit court.

Until his termination by KRC, Hughes was an employee of that agency holding the full-time merit position of Racing License Inspector. At that time, he was a sixty-nine-year-old African-American man, who described himself as having worked around thoroughbred horse racing for more than fifty years.

KRC notified Hughes by letter dated August 17, 2000, that he had been placed on special leave with pay effective August 18, 2000, pending an investigation of charges that he had engaged in terroristic threatening while working at Ellis Park, a thoroughbred track located in Henderson, Kentucky, and that he had brought a firearm to work at Ellis Park. In a second letter dated August 31, 2000, KRC notified Hughes of its intention to dismiss him effective September 19, 2000, for these charges. The letter stated that KRC found probable cause to believe that he had threatened the life of Gerard O'Brien, a trainer at Ellis Park, in a parking lot at Ellis Park on August 6, 2000. The letter further stated that on August 9, 2000, Hughes had repeated this death threat to David Paulus, another horse trainer at Ellis Park. According to the letter, these threats violated 101 Kentucky Administrative Regulations (KAR) 1:345, Section 1,³ and 101 KAR 2:095, Section 9.⁴ In addition, on August 9, 2000, Hughes brought a gun onto Ellis Park property in violation of Ellis Park's rules and 810 KAR 1:025, Section 3(12)(a).⁵ Darrell Williams, head of security at Ellis Park, located a loaded handgun in the passenger compartment of Hughes's car following an interview with Hughes on August 9, 2000, in which Hughes confirmed to Williams that he had threatened to kill O'Brien and that he had a gun with him at the track.

KRC's letter further stated that Hughes's racing license,⁶ which permitted him to perform his job duties at the various thoroughbred tracks around the state, had been suspended at a hearing by the Ellis Park Stewards on August 23, 2000.⁷ In addition, Ellis Park management had ejected him from the track and refused to allow him further access.⁸ The suspension of the license and the ejection barred Hughes from Ellis Park; and this bar would also be recognized and enforced by the other Kentucky tracks, which meant that Hughes would not be able to perform his job at any track in Kentucky.

By agreement between Hughes and KRC, the termination was held in abeyance pending an evidentiary hearing on the license suspension by a KRC hearing officer on October 9, 2000. KRC formally terminated Hughes effective October 13, 2000.

As a classified state employee with status, Hughes appealed the termination to the Personnel Board on December 12, 2000.⁹ On February 13, 2001, the Hearing Officer for the Personnel Board conducted an administrative hearing in accordance with KRS Chapter 13B.¹⁰ The Hearing Officer rendered his "Findings of Fact, Conclusions of Law and Recommended Order" on February 21, 2001. By way of background, the Hearing Officer recited verbatim KRC's findings. However, the Hearing Officer's findings of fact diverged significantly from those made by KRC. The Hearing Officer found that even though Hughes admitted threatening to kill O'Brien on August 6, 2000, he actually found no evidence of intent on Hughes's part to follow through with the threat. Furthermore, the Hearing Officer found that a "wounded" Hughes delivered the death threat in reaction to a racially charged retort that O'Brien had aimed at Hughes at the track about two hours before the parking lot encounter on August 6, 2000. The Hearing Officer found that O'Brien said, "I'm not going to be any nigger's Cheshire cat." Further differing from KRC's charges, the Hearing Officer did not believe from the evidence that Hughes repeated the threat on O'Brien's life to Paulus or Williams on August 9, 2000. As for the presence of the gun in Hughes's car at Ellis Park on August 9, 2000, the Hearing Officer dismissed it as an inadvertent coincidence. The Hearing Officer believed Hughes's testimony that he had a permit to carry a concealed weapon, that he customarily carried the weapon with him as he traveled about the state, and that he had simply failed to stop by the motel to leave his weapon before coming to the track on the morning of August 9, 2000.

The Hearing Officer agreed that KRC had grounds to discipline Hughes for misconduct associated with the work, stating

(1) Hughes was guilty of misconduct, as that term is defined by 101 KAR 1:345, Section 1, in his use of language during his angry outburst on August 6 which communicated a threat to do physical violence to O'Brien.

(2) Hughes violated 810 KAR 1:[025], Section 3(12), by possession of a firearm on association grounds.

However, the Hearing Officer's conclusions then departed from KRC's in that he concluded that

(3) Hughes did not violate the state's workplace violence policy [101 KAR 2:095, Section 9](1)(b). Although his words make out a prima facie case of terroristic threatening, the evidence failed to establish that the angry remarks, uttered in the context of the parking lot exchange between O'Brien and Hughes, caused O'Brien to have a reasonable belief that his health or safety was at risk. The situation strongly implies that O'Brien understood that these were angry words from a black man who had been offended by the use of the word "nigger." O'Brien did not want the situation to go any further, but he registered the remark with the track steward merely as a defensive posture should Hughes continue to protest. The subsequent recitation of the same words, first to Paulus, then to Williams, were out of context. It was here that Hughes made his most serious error by confirming his intention to Williams as a means of underscoring his anger. Yet the Hearing Officer is persuaded he meant nothing more than to communicate the depth of his feeling to Williams, whom he trusted as an old friend who would understand. He seriously miscalculated the position that Williams would be in, as director of security, in hearing the threatening words repeated and confirmed.

(4) The Hearing Officer finds the penalty of termination excessive and erroneous under the circumstances. There are mitigating factors which powerfully influence the evaluation of the seriousness of the offense and the appropriateness of the penalty. Hughes['s] situation is examined under KRS 18A, a statute that requires a just and proper cause.

(5) Grave sanctions should not be applied to the kind of verbal threat that expresses transitory anger rather than a settled purpose to carry out the threat. While it must be recognized that the increasing incidence of workplace violence requires vigilance by any employer, the principles of fairness and just cause cannot be sacrificed because of the challenges facing management in enforcing policies against aggressive behavior.

(6) On the charges of misconduct, as grounds for termination, the Hearing Officer finds that the penalty of forfeiture of his job is inappropriate for the utterance of angry words to O'Brien in reaction to a racial slur and additional rude conduct during their parking lot conversation. Although Hughes'[s] subsequent handling of the situation magnified the original problem, these complications occurred independent of the original threat and do not convert it into a dischargeable offense.

(7) The possession of a handgun was the result of an oversight. Although [Ellis Park's Chief Security Officer] Williams testified that there have been other occasions of ejecting people from the Park for possession of firearms, there is no evidence to lead the Hearing Officer to believe that such ejections arose from similar circumstances to finding a firearm, sealed in a pouch, in a locked car in the parking lot. While Hughes violated both the KAR regulation and Ellis Park rules, this infraction would not warrant termination of his employment.

(8) The KRC also advocates that discharge is warranted because Hughes has lost the ability to fulfill his job requirements. The ejection from Ellis Park results in being barred from not only that track, but other tracks in the state. This was compounded by the suspension of Hughes'[s] license by the stewards, which also prohibited him from being on the premises, independent of the Ellis Park ejection. Either of these circumstances results in Hughes being unable to perform the duties of the license inspector. There are no other administrative jobs available on the relatively small staff of the KRC.

(9) The Hearing Officer concludes that these complications in the ability of Hughes to perform his job do not constitute independent grounds for dismissal. The ejection from Ellis Park is not irrevocable. Although Williams testified that he would not support setting it aside under the present circumstances, he is not the decision-maker. Hughes has made no application to have his ejection lifted and his privilege to return to the track reinstated. The...