STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, UNEMPLOYMENT INSURANCE COMMISSION, Appellant (Respondent),
SUSAN M. KINNEMAN, Appellee (Petitioner).
from the District Court of Fremont County The Honorable
Marvin L. Tyler, Judge
Representing Appellant/Respondent Peter K. Michael, Wyoming
Attorney General; John D. Rossetti, Deputy Attorney General;
Michael J. Finn, Senior Assistant Attorney General; Charlotte
M. Powers, Assistant Attorney General.
Representing Appellee/Petitioner Cynthia Van Vleet, Wind
River Law Center, P.C., Riverton, Wyoming.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
After she was discharged from her position as high school
principal of the St. Stephens Indian School near Riverton,
Wyoming, Appellee/Petitioner Susan M. Kinneman applied for
unemployment insurance benefits. Appellant/Respondent State
of Wyoming ex rel. Department of Workforce Services,
Unemployment Insurance Commission (the Commission) denied her
request because it determined she had been fired for
misconduct connected with her work. Ms. Kinneman filed a
petition for judicial review, and the district court
reversed, concluding the Commission's decision was not
supported by substantial evidence. The Commission challenges
the district court's decision on appeal.
The Commission presents the following appellate issue:
An individual terminated for misconduct connected with her
work cannot receive unemployment insurance benefits. The
Unemployment Insurance Commission denied Susan Kinneman's
claim for benefits because she was discharged for misconduct
committed when she failed to promptly initiate a formal
assessment of a student despite her recognized duty to assess
the student. Did the District Court err in reversing the
Commission's decision as not supported by substantial
Although she phrases it somewhat differently, Ms. Kinneman
presents essentially the same issue on appeal.
The St. Stephens Indian School (hereinafter referred to as
"the school") hired Ms. Kinneman in 2012 to serve
as the dean of students. In early 2013, she was promoted to
high school principal and continued in that position until
September 2014. Elma Brown became the superintendent of the
school in July 2014.
Classes began on August 18, 2014, and shortly thereafter, on
August 26, 2014, Ms. Brown placed Ms. Kinneman on an
"action plan" to improve her performance, after
learning that Ms. Kinneman was having problems with her
secretary and had failed to inform Ms. Brown about a fight at
school. The action plan focused on helping Ms. Kinneman
improve her communication with students, staff, other
stakeholders, and Ms. Brown. As part of the plan, Ms.
Kinneman was required to inform Ms. Brown of any important
matters regarding the school.
On August 28, 2014, the guidance counselor reported to Ms.
Kinneman that a high school senior appeared to be overly
tired. Although the counselor listed drugs or alcohol as two
of the many reasons a student may be fatigued, she did not
state that she believed the student was drunk. In fact, she
specifically stated that she did not know the cause of the
student's tiredness. Ms. Kinneman located the student in
the hallway. After observing her, Ms. Kinneman concluded she
looked tired, like she might be "under the influence
possibly of cold medicine or that she might have been up
late, " but Ms. Kinneman did not believe the girl was
Nevertheless, because of the guidance counselor's report,
Ms. Kinneman knew that she needed to have the student
assessed. She asked her secretary to contact the school nurse
to perform a "quiet assessment" because she did not
want to embarrass the student. The secretary stated that the
nurse was not available. Although Ms. Kinneman knew there
were other staff members in the district who could perform an
assessment, she decided to contact Ms. Brown to determine the
"next step." Ms. Kinneman directed her secretary to
call the superintendent, but Ms. Brown was not available.
At that point, Ms. Kinneman said she was not going to assess
the student at that time and was leaving the school for a
while. There is considerable dispute in the record as to
whether Ms. Kinneman left campus or visited another building
on campus. There is also a discrepancy about the length of
time she was gone from the high school. Ms. Kinneman stated
that she was gone only fifteen minutes and others stated that
she was gone approximately forty-five minutes. In any event,
by the time Ms. Kinneman returned to the high school, her
secretary had contacted Ms. Brown and informed her there was
a potentially drunk student at the high school. Ms. Brown
arrived at the school shortly thereafter.
Ms. Brown pulled the student out of class, took her to the
elementary school nurse's office and performed an
assessment, which did not indicate the student was
intoxicated. The school resource officer performed two
breathalyzer tests to detect the presence of alcohol, which
were also negative. Shortly thereafter, Ms. Brown launched an
investigation into Ms. Kinneman's handling of the
situation. A few days later, on September 2, 2014, Ms. Brown
gave Ms. Kinneman a letter of termination, which stated that
she had committed "gross negligence" by not
promptly assessing a student who was potentially intoxicated
and allowing the student to remain in class while Ms.
Kinneman left the building.
Ms. Kinneman applied for unemployment insurance benefits. A
deputy for the Unemployment Insurance Division denied her
claim after determining she was discharged for misconduct
connected with her work. She appealed, and a hearing officer
for the Wyoming Department of Workforce Services Appeals
Division held a contested case hearing. The hearing officer
ruled that Ms. Kinneman was discharged from her employment,
but not for misconduct connected with her work. The school
appealed to the Commission, which reviewed the hearing
transcript but did not take any new evidence. The Commission concluded that Ms. Kinneman
was not entitled to benefits because she had been
"discharged for an instance of negligence of such a
degree to constitute misconduct." Ms. Kinneman filed a
petition for judicial review, and the district court
reversed, concluding that the Commission's decision was
not supported by substantial evidence. The Commission
appealed to this Court.
In unemployment insurance cases, we review the decision of
the Commission; the decisions of the deputy, the hearing
officer and the district court are not relevant to our
analysis. Koch v. Dep't of Employment, Unemployment
Ins. Comm'n, 2013 WY 12, ¶ 15, 294 P.3d 888,
892 (Wyo. 2013). Given the Commission is an administrative
agency, our review is governed by Wyo. Stat. Ann.
§ 16-3-114(c) (LexisNexis 2015):
(c) To the extent necessary to make a decision and when
presented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the
terms of an agency action. In making the following
determinations, the court shall review the whole record or
those parts of it cited by a party and due account shall be
taken of the rule of prejudicial error. The reviewing court
(i) Compel agency action unlawfully withheld or unreasonably
(ii) Hold unlawful and set aside agency action, findings and