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Should I appeal the Commission's decision to my state court?

by Susan
(Kentucky )

Background: I was bullied, intimidated, constantly criticized by my supervisor off and on for 7 months at my small office (< 6 employees) resulting in panic attacks at work. The president of the company was aware, but did nothing to stop the treatment and at times participated. I tried everything to help make the situation manageable and followed every request from my employer. When I finally confronted the president of the company (in an email) about the intolerable working conditions asking it to be corrected and explaining if she refused to do so I could not continue my employment, she took that as my resignation letter and asked me to bring in my keys. I replied back in another email stating that I do not accept this as my resignation letter and that I did not want to end my employment. I filed for unemployment the following day when she never responded back.

I have been denied benefits on the basis that I quit my job without good cause attributable to my employment and that I did not exhaust all reasonable options before quitting.

I submitted into evidence all emails between my supervisor and myself showing the treatment, emails between the president of the company and myself showing how many times I complained about the treatment, how she did little or nothing each time to correct it, and the emails regarding the "resignation letter" issue showing I didn't resign my employment, as well as doctor's notes and the employee handbook. The hearing was conducted over the phone so I did not witness that the referee considered my evidence. It seemed he was not familiar with any of it by asking the same questions over and over again and interrupting me when I tried to explain the facts of the case. He affirmed the denial of my benefits based on the fact that I quit my employment without good cause AND I did not exhaust all reasonable options for resolution prior to quitting my employment.
I appealed to the Commission and submitted my brief for review. The commission stated that I did not meet the burden of proof and that my testimony and evidence was without merit. It also states I did not present medical documentation of my panic attack (I did along with all other documents), that I did not give examples of "the alleged critism" (I provided over 50 emails showing just that as evidence) and facts about the case that were entirely incorrect.
I now have
only one option which is appealing my case to the Kentucky state courts. The attorneys I have contacted charged thousands of dollars to represent me which I cannot afford since I'm so broke I'm on food stamps now. I need to know if I should appeal this on my own or try to get an attorney. What is your opinion?

Hi Susan,

I'll just lay it all out there and from my perspective.

The basic reason I write about the first unemployment appeal hearing being the most important appeal is because it basically seals the deal on further appeals, unless you raise the valid recognizable and provable mistakes of the hearing officer that heard your case first.

So, if you're going to reiterate the same argument that hasn't worked thus far .. I'm wondering if you focused on the correct aspects for either appeal so far.

I can't tell you if you SHOULD appeal or not because I don't know enough about what happened at the first hearing .. nor do I know what mistakes of that hearing officer you focused on and provided supporting case law for.

From what you've told me here .. I'd say you're a good example to support why I always recommend unemployment hearing reps for $375 and under for the first hearing.

I know they hate to lose cases that they take .. So just filling out one of the referral forms and asking them to consider taking your lower level appeal hearing you'll usually find they are more than happy to tell you if they think your case is a loser from the gitgo.

As far as board appeals go .. some may charge a little more if they weren't involved with the first level hearing, but most include a meritorious board appeal if they were your rep at the first hearing and believe the hearing decision was wrong.

So here you are .. on food stamps .. so can I assume you can't afford access to true legal research online? Then maybe a trip to a law library.

You need to know exactly what to focus on .. when you compile your research into a written argument based on the record, for a remand, reversal or even a remand just to fully develop the original record further.

Court appeals are not commonplace and they are definitely expensive for an employer, but sometimes .. it does happen that an unemployed person .. does win a court level appeal all by their lonely.

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Oct 05, 2011
Filed for Reconsideration from Commission
by: Susan

Thanks for your comment. I had no idea that a claimant could file for a reconsideration of the Commission's decision. It was not listed at the bottom of my Order. However, after researching much case law and administrative regulations, there it was: "(a) A party adversely affected by a decision of the Kentucky Unemployment Insurance Commission may, within ten (10) days of the mailing date of the decision, request in writing a reconsideration of the commission's decision.

1. The commission shall grant or deny the request for reconsideration based on the conformity of the request to this paragraph.

2. A request for reconsideration shall be considered initiated and filed as of the date it is received by the department as established in 787 KAR 1:230.

(b) A request for reconsideration of a decision of the commission shall not stay the running of time for appeal to the circuit court.

So, with it being my 10th day, I scrabbled putting together my motion for reconsideration. The "meat and potatoes" of this case is that it is blantantly obvious that evidence that I submitted (doctor's notes, emails showing harassment & request for help from employer, etc.) was either not looked at by the referee at all or was not consider at all. Also, now after reading the order more closely, the Comission has modified the order changing the date that I quit from 3/11 to 3/13 which I requested in my appeal. The referee told me during the hearing that he would not allow any evidence after 3/11. Now that the commission has modified that date, evidence I have on the 3/13 and 3/14 that was not considered should be considered which is substantial evidence in my case. My question to you now is how do I also show or prove that my evidence I submitted prior to the hearing hasn't been looked at? I've requested a copy of the hearing and all exhibits used by the referee and all I got was one audio CD. Does this prove he didn't look at any of my other evidence I submitted?

That's a good question. How does one prove the "impartial hearing officer" ignored anything that he refused to submit into evidence or what he did allow in.

It shows up in his reasoning or finding of facts.

If it were me, I might be thinking about finding case law to support a request for reversal or a remand due to the evidence disallowed merely because it post dated 3/11 given the fact that your separation date has been changed by the state.

It might have been irrelevant before, but was that due in most part to the state making an error? Sounds like it and it should raise questions about the lower level hearing resulting in a valid denial.

I'd say yes.

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