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Commonwealth v. Hourigan

Court of Appeals of Kentucky

July 21, 2017

COMMONWEALTH OF KENTUCKY, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION APPELLANT
v.
WILLIAM ANTHONY HOURIGAN AND CURTIS-MARUYASU AMERICA, INC. APPELLEES AND CURTIS-MARUYASU AMERICA, INC. APPELLANT
v.
WILLIAM ANTHONY HOURIGAN APPELLEE

         APPEAL FROM MARION CIRCUIT COURT HONORABLE ALLAN RAY BERTRAM, JUDGE ACTION NO. 14-CI-00287

          BRIEFS FOR APPELLANT, KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION: Patrick B. Shirley Frankfort, Kentucky

          BRIEFS FOR APPELLANT, CURTIS-MARUYASU AMERICA, INC.: Brent R. Baughman Louisville, Kentucky

          BRIEFS FOR APPELLEE, WILLIAM ANTHONY HOURIGAN: Elmer J. George Jonathan R. Spalding Lebanon, Kentucky

          BEFORE: DIXON, J. LAMBERT, AND STUMBO, JUDGES.

          OPINION

          LAMBERT, J. JUDGE.

         Commonwealth of Kentucky, Kentucky Unemployment Insurance Commission (KUIC), and Curtis-Maruyasu America, Inc. (CMA) have separately appealed from the Order and Judgment of the Marion Circuit Court reversing KUIC's decision to deny benefits to former CMA employee William Anthony Hourigan. We reverse the circuit court's order.

         Hourigan began working for CMA on August 5, 2010; his position at the time of his termination was as a Group Leader. He was terminated on April 25, 2014, for failing to follow CMA's sexual harassment/personal conduct policy and report an issue of harassment reported to him by a team member. CMA's termination letter to Hourigan, dated April 29, 2014, stated as follows:

[CMA] has a detailed Harassment/Prohibited Harassment and Personal Conduct Policy which forbids any harassing or inappropriate conduct. CMA also provides training for supervisors regarding harassment/prohibited harassment. You have reviewed the Harassment Policy on several occasions, and also attended Harassment Training.
Anthony, as a Group Leader - a crucial supervisory position - you were required to meet CMA's expectations to provide a working atmosphere that is free from all forms of harassment. As a CMA supervisor, you had a unique responsibility to prevent and report harassment in the workplace, and to set a positive example for your Team Members. As a supervisor, your actions may be attributed to the company for purposes of determining compliance with the law.
Allegations were brought forward regarding your knowledge of harassing conduct occurring within CMA, which included inappropriate physical conduct toward CMA team members including yourself. In response to these allegations, we immediately began an extensive investigation, involving numerous interviews with CMA employees. As a result, we concluded you had knowledge of the inappropriate behavior and failed to uphold your responsibilities as a management representative of this company to document and report accordingly to protect our team members from this inappropriate behavior. Your knowledge of instances of improper conduct has been corroborated through witnesses as well as through your own admission. Our findings are made all the more serious because of your position as a Group Leader with supervisory responsibility over many employees and knowingly allowing the behavior to continue. Your failure to address and report has exposed CMA to potential liability, and we simply cannot tolerate behavior of this kind from a management representative.
Accordingly, as we discussed when we spoke on April 25, 2014, we have no choice but to terminate your employment with CMA, effective immediately.

         While Hourigan was aware of the rule and admitted that he had violated it, he did not believe it applied in the situation. In his rebuttal statement made during CMA's investigation, Hourigan explained:

There was horse play going on and one of the guys involved came to me laughing and was telling me what happened and I told him if it got to be a problem to come let me know[.] [He] never did and then about a month later he went to HR and told them it was sexual harassment and I was brought to HR and told I needed to write a statement on what happened so I did[.] [But] I did not know three [sic] was sexual harassment involved and I was accused of lying by HR president Terry Viverburg ...

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