                                       No. 114,134

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                               DEBRA K. RHODENBAUGH,
                                     Appellant,

                                            v.

                  KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW
                           and MCPHERSON HOSPITAL,
                                  Appellees.


                             SYLLABUS BY THE COURT


1.

       Venue for proceedings under the Kansas Judicial Review Act (KJRA) is, with
exceptions not applicable here, in the county in which the order or agency action is
entered or is effective or the rule and regulation is promulgated. K.S.A. 77-609(b).


2.
       Venue may be proper in more than one county under the KJRA venue statute.
Accordingly, not all KJRA proceedings must be in the county in which the order is
entered.


3.
       By amendments to the KJRA venue statute in 1986, the Kansas Legislature
indicated its intent to expand venue to include counties in which an agency action is
effective.




                                             1
4.
       The Code of Civil Procedure may be used by the district court to supplement the
KJRA if the provision is a logical necessity that is not addressed within the KJRA.


5.
       When venue for a KJRA proceeding is proper in more than one county and a party
moves to change venue, the district court should give due consideration to the plaintiff's
right to choose the place of the action and should determine whether a transfer will serve
the convenience of the parties and witnesses and the interests of justice.


6.
       Although a party's right to litigate in a proper forum is a valuable one, the law
does not require pointless redetermination of legal issues where, as here, the results may
be readily foreseen. Accordingly, the improper transfer of venue does not necessarily
warrant reversal or remand.


7.
       Individuals who are unemployed because they were discharged for misconduct
connected with their work are ineligible for unemployment benefits. K.S.A. 2015 Supp.
44-706(b). The employer bears the burden of proving misconduct by a preponderance of
the evidence.


8.
       A hospital employee whose employment is terminated for refusing to get a flu shot
is discharged for misconduct connected with work where that refusal violates a company
safety rule, the individual knew about the rule, the rule was lawful and reasonably related
to the job, and the rule was fairly and consistently enforced.




                                              2
        Appeal from Shawnee District Court; REBECCA W. CROTTY, judge. Opinion filed April 1, 2016.
Affirmed.


        Larry G. Michel and Karen Q. Couch, of Kennedy, Berkley, Yarnevich, & Williamson,
Chartered, of Salina, for appellant.


        Justin McFarland, deputy general counsel, of Kansas Dept. of Labor, for appellee Kansas
Employment Security Board of Review.


        Ann M.E. Parkins and Casey R. Law, of Wise & Reber, L.C., of McPherson, for appellee
McPherson Hospital.


Before PIERRON, P.J., BRUNS and GARDNER, JJ.


        GARDNER J.: This case asks whether a hospital employee's refusal to get a flu shot
constitutes job-related misconduct precluding her receipt of unemployment benefits. The
Employment Security Board of Review and the district court found it does. We agree.


                                  PROCEDURAL BACKGROUND

        McPherson Hospital (the hospital) hired Debra K. Rhodenbaugh in 2010 as an
emergency department clerk. She worked at a nursing desk located in the center of the
emergency department. As part of her employment, Rhodenbaugh interacted with
doctors, nurses, and patients.


        After Rhodenbaugh was hired, the hospital amended its policy regarding influenza
vaccinations. In an effort to limit exposure and transmission of the influenza virus (flu)
between the patients and the staff, the hospital changed its policy to require all employees
to receive a flu vaccination. The policy expressly allowed for medical and religious
exemptions but no others. On September 3, 2013, the hospital sent an email notifying all
employees of the policy change and uploaded the policy in a shared folder.

                                                  3
       Following that notification, the hospital offered free flu vaccinations to its
employees. Approximately 95% of the employees complied. Jill Wenger, Vice President
of Human Resources, mailed certified letters on October 23, 2013, to Rhodenbaugh and
other employees who did not comply, informing them they needed to get the mandatory
flu vaccinations or return a declination form signed by their physician or clergy.
Rhodenbaugh never went to the post office to pick up that letter, but she admitted her
awareness of it and of the requirement that she receive a flu vaccination.


       On October 29, 2013, Rhodenbaugh provided the hospital with a note from her
doctor which said: "Patient prefers to defer flu shot at this time." Wenger told
Rhodenbaugh her note failed to reflect any objection on medical or religious grounds so it
was insufficient to fall within the hospital's exceptions to the flu shot requirement.


       Rhodenbaugh then sent a letter to the hospital explaining her decision to decline a
flu vaccination, which stated:
    her aunt had passed away within 2 weeks after having received a flu vaccine;
    her grandson had had a "severe reaction to his immunizations" and suffers from
       seizures and permanent brain damage;
    she had experienced reactions to medications, including over the counter drugs,
       "beyond what one would expect";
    she believed the flu vaccine contains Thimerosal which "has been shown to
       potentially increase the risk of Alzheimer's Disease, brain damage and nervous
       system injury"; and
    her grandmother had passed away from Alzheimer's, and two of her aunts suffer
       from the disease.


       The hospital found these reasons insufficient to meet the stated exceptions to its
policy. Due to Rhodenbaugh's failure to receive the mandatory flu vaccination or


                                              4
complete the declination form, she was terminated on October 31, 2013. Her termination
is not at issue on this appeal.


       Rhodenbaugh applied for and initially received unemployment benefits through
the Kansas Department of Labor, but the hospital appealed. After a telephone hearing, the
referee upheld the examiner's determination, finding Rhodenbaugh was qualified for
benefits because she had been discharged but not for misconduct connected with her
work. The hospital appealed that decision to the Kansas Employment Security Board of
Review (the Board), which reversed.


       Rhodenbaugh then filed a petition for review of agency action in the McPherson
County District Court. The hospital moved to dismiss the petition, arguing McPherson
was an improper venue. The hospital claimed venue was proper in Shawnee County
because the Board was located there and the Board's order had been entered there. The
district court denied the hospital's motion to dismiss but ordered the case transferred to
the Shawnee County District Court.


       Rhodenbaugh then filed a brief in support of her petition for judicial review in the
Shawnee County District Court. After reviewing the record, the district court found:


               "The vaccination policy was fairly and consistently enforced. This is not a
       contested point, but requisite for a proper review of the interpretation and application of
       the law. The policy applied to all employees and reasonable exceptions were made for
       those objecting on medical or religious grounds. Employees were given ample notice and
       a reasonable amount of time to comply with the policy. There is nothing in the record to
       indicate the policy was unfair or inconsistently enforced."


Accordingly, the district court denied Rhodenbaugh's petition for judicial review.
Rhodenbaugh timely appeals from that order.



                                                    5
                                        IMPROPER VENUE

       We first address Rhodenbaugh's argument that venue was proper in the
McPherson County District Court and her case was improperly transferred to the
Shawnee County District Court.


       Rhodenbaugh's appeal for judicial review of the agency's action is governed by
the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See Ryser v. State, 295
Kan. 452, 458, 284 P.3d 337 (2012). This Act specifically addresses venue in providing:


                 "Except as otherwise provided by K.S.A. 8-259, 31-144, 44-556, 72-5430a and
       74-2426, and amendments thereto, venue is in the county in which the order or agency
       action is entered or is effective or the rule and regulation is promulgated." K.S.A. 77-
       609(b).


Because the statute states the proper venue for this proceeding, the question presents a
matter of statutory interpretation which is a question of law subject to unlimited review.
Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).


       Neither party asserts that any statutory exception listed in this venue statute
applies. We agree. See K.S.A. 2015 Supp. 8-259 (drivers' licenses); K.S.A. 2015 Supp.
31-144 (fire safety and prevention); K.S.A. 2015 Supp.44-556 (workers compensation);
K.S.A. 2015 Supp. 72-5430a (teachers' contracts); and K.S.A. 2015 Supp. 74-2426 (tax
appeals).


       Thus venue is governed by the general provision that venue is proper "in the
county in which the order or agency action is entered or is effective or the rule and
regulation is promulgated." K.S.A. 77-609(b). The McPherson County District Court
found this language to be ambiguous. It found Rhodenbaugh had filed the action in good


                                                    6
faith but ruled that the case should be transferred to Shawnee County District Court rather
than dismissed, as the hospital had requested.


       Because K.S.A. 77-609(b) provides that venue is proper in the county in which the
order is entered, and the Board's order was entered in Shawnee County, Shawnee County
was a proper venue. But Rhodenbaugh contends that venue was also proper in
McPherson County because the agency action or order "is effective" in that county where
she resides and would receive and use her unemployment benefits.


       We find support for Rhodenbaugh's interpretation in the legislative history of this
venue statute. The statute originally provided that venue was generally proper "in the
county in which the order is entered or the rule and regulation is promulgated." L. 1984,
ch. 338, Sec. 9. That narrow provision was interpreted to be pro-agency and favored
venue in the Shawnee County District Court. Professor David Ryan, a member of the
committee that advised the Kansas Legislature during its adoption of the KJRA, see
Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 398, 204 P.3d 562 (2009), analyzed
venue under the KJRA shortly after its enactment:

       "Venue was one of the tougher issues in the course of the legislative promulgation of the
       KJRA. The Judicial Council recommended several alternative venues, but it may be
       noted a number of state agencies voiced their concern about traveling outside Topeka. In
       the resulting controversy over whether to grant a broad or narrow venue for
       administrative appeals, the proposed Act went for many weeks without any venue
       provision at all between the House and Senate versions, until it was finally resolved. In
       its final format, venue is quite simple and pro-agency: being the 'county in which the
       order is entered or the rule or regulation is promulgated.' This will far more often than not
       be the Shawnee County District Court in Topeka." Ryan, The New Kansas Administrative
       Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 65 (1985).


       But the following year, the legislature broadened the venue statute by adding the
language at issue in this case, which we have italicized below:

                                                    7
       "[V]enue is in the county in which the order or agency action is entered or is effective or
       the rule and regulation is promulgated." L. 1986, ch. 318, Sec 4.


This change requires this court to determine the legislative meaning and intent of the
amendment.

               "The legislative history surrounding the 1986 amendment is not very
       enlightening. The Senate Judiciary Committee minutes accompanying the proposed
       change do not state the purpose behind the amendment other than that the amendments to
       the Act were merely 'technical' in nature." Karns v. Kansas Bd. of Agriculture, 22 Kan.
       App. 2d 739, 742, 923 P.2d 78 (1996).


       Under this and other statutes, venue may be proper in more than one county. See
Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, 942,
529 P.2d 171 (1974). "When construing a statute, a court should give words in common
usage their natural and ordinary meaning." Bank IV Wichita v. Plein, 250 Kan. 701, 705-
06, 830 P.2d 29 (1992). "When the legislature revises an existing law, it is presumed that
the legislature intended to change the law as it existed prior to the amendment." Hughes
v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). It is a cardinal rule
of statutory construction that a provision should not be interpreted as to render some
language mere surplusage. See Northern Natural Gas Co. v. ONEOK Field Services Co.,
296 Kan. 906, 918, 296 P.3d 1106 (2013).


       Given the plain language of the statute, coupled with its legislative history, we
cannot construe the KJRA venue statute to require the Shawnee County District Court to
review all petitions from the Kansas Employment Security Board of Review and other
administrative agencies located in Topeka. See Karns, 22 Kan. App. 2d at 742.
Interpreting venue to lie only in the county where an administrative order is issued and
not in any county where the effects of the order are felt, is overly narrow and would have
the practical effect of placing venue in Shawnee County for all administrative appeals. If
such were the case, then the legislature could have explicitly placed venue in the
                                                    8
Shawnee County District Court in enacting the KJRA. Instead, the legislature amended
the statute in 1986 to avoid that possible interpretation. We decline to read "effective" as
mere surplusage. Accordingly, we find the 1986 amendment was intended to expand
venue to include counties in which agency orders are effective.


       We next determine whether the Board's order was effective in McPherson County,
as Rhodenbaugh contends. Although the Board's order was entered in Shawnee County,
Rhodenbaugh contends the agency action is effective in McPherson County because she
lives there and, if successful, would have received payment of unemployment benefits
there, apparently through the mail.


       In Mildfelt v. State, 11 Kan. App. 2d 617, 731 P.2d 884 (1987), a petition for
judicial review of SRS's denial of food stamps and medical assistance was brought in
Shawnee County. The pre-1986 venue statute governed the case, but we found under the
facts of the case that the same result would have occurred under the post-1986 version of
the statute. 11 Kan. App. 2d at 618. We found venue was proper only in Sedgwick
County because Mildfelt had applied for food stamps and medical assistance there, her
original application had been denied there, and the effects of the decision were "wholly
within" Sedgwick County. 11 Kan. App. 2d at 620. We found the decision "effective" in
Sedgwick County because the food stamps would have been issued and used in Sedgwick
County and the medical assistance, had it been granted, would have been rendered in
Sedgwick County. 11 Kan. App. 2d at 620.


       The facts of this case are not as compelling as those in Mildfelt. Here, venue was
clearly proper in Shawnee County because the Board's order was entered there, and the
Board's decision, if favorable to the plaintiff, would be effective in McPherson County
only because Rhodenbaugh lived there and would receive her unemployment benefits
there. We find these facts sufficient, although minimally so, to show that the Board's
order or action was effective in McPherson County.

                                              9
       That conclusion, although supported by scant facts, is fortified by a rule of law.
Where venue for a KJRA proceeding is proper in more than one county, the district court
should give due consideration to the plaintiff's right to choose the place of the action. See
K.S.A. 60-609(a) (allowing the trial court to change venue upon the motion of a party and
"a finding that a transfer would better serve the convenience of the parties and witnesses
and the interests of justice"); Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 97,
106 P.3d 492 (2005) (holding "the Code of Civil Procedure may be used by the district
court to supplement the KJRA if the provision is a logical necessity that is not addressed
within the KJRA"); cf. Gonzales, Administrator v. Atchison, T. & S. F. Rly. Co., 189 Kan.
689, 691-93, 371 P.2d 193 (1962) (finding '"unless the balance is strongly in favor of the
defendant, the plaintiff's choice of forum should rarely be disturbed'" under the principle
of forum non conveniens). The district court's ruling in this case does not reflect that it
gave any consideration to the plaintiff's right to choose among two proper venues.


       We find that the facts of this case, the legislative history of this statute, and proper
deference to the plaintiff's choice of forum compel the conclusion that venue was proper
in McPherson County, as well as in Shawnee County. Accordingly, the district court
should not have transferred venue without having given weight to the plaintiff's choice of
venue and without having found that a transfer would serve the convenience of the parties
and witnesses and the interests of justice.


Harmless error

       The party benefiting from an erroneous change of venue has the burden to come
forward with a showing of harmlessness. Kansas City Mall Assocs. v. Unified Gov't of
Wyandotte County/KCK, 294 Kan. 1, 8, 272 P.3d 600 (2012). Here, McPherson Hospital
has undertaken that burden and has met it.



                                              10
       We are persuaded by the Supreme Court's approach in Alliance Life Ins., 215 Kan.
937. There, the Supreme Court held the district court erred by failing to transfer the
matter to the county of proper venue but nonetheless addressed the merits, reasoning that
a remand would in all probability be futile:


               "Had this case been decided after a trial, requiring the weighing of evidence to
       resolve disputed facts, the holding just announced might well receive a reversal with
       directions to transfer the case to Grant county for a new trial. The decision, however, was
       made as a matter of law, based on stipulations as to facts, testimony, and—perhaps most
       important—the unavailability of testimony. As will be developed, it appears that a
       remand and transfer to Grant county would in all probability bring us the case again on a
       record identical with this one, at least insofar as the merits are concerned. Although a
       party's right to litigate in a proper forum is a valuable one, the law does not require
       pointless redetermination of legal issues where the results may be readily foreseen.
       [Citation omitted.] For this reason, and because the parties urge us to do so, we proceed
       to the merits." 215 Kan. at 942.


       Our case, although not decided on stipulated facts, presents solely a question of
law on established facts. The parties submitted the matter to the Shawnee County District
Court on the briefs, based on the existing case record. Neither party requested a hearing,
oral argument, or a trial. And the remaining issue on appeal presents solely a question of
law—whether Rhodenbaugh's refusal to receive the flu vaccine constitutes statutory
misconduct as provided in K.S.A. 2015 Supp. 44-706(b). If we remand this case to the
McPherson County District Court, the only difference would be which judge would
review the agency action, but Rhodenbaugh has not alleged that the Shawnee County
judge who decided her petition for judicial review was biased or otherwise unfair. Neither
party contends that the outcome of this matter may have been different had it been heard
in McPherson County. Accordingly, to remand for a transfer of venue would be futile, as
the parties agree. Therefore, we address this appeal on its merits.



                                                    11
                              JOB-RELATED MISCONDUCT


       This action is brought as a judicial review of an agency action under the Kansas
Judicial Review Act (KJRA), K.S.A. 77-601 et seq. The KJRA defines the scope of
judicial review of state agency actions. K.S.A. 2015 Supp. 77-603(a); Ryser, 295 Kan. at
458. Parties in an agency action before the district court under the KJRA may appeal the
district court's decision to the appellate courts, just as parties do in other civil cases.
K.S.A. 77-623. Appellate courts exercise the same statutorily limited review of the
agency's action as does the district court, as though Rhodenbaugh's petition had been
made directly to the appellate court. Powell, 290 Kan. at 567. On appeal, the burden of
proving the invalidity of the agency action rests on the party asserting such invalidity.
K.S.A. 2015 Supp. 77-621(a)(1); Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497,
500, 293 P.3d 707 (2013). Here, that party is Rhodenbaugh.


       The KJRA outlines eight scenarios under which relief may be granted. K.S.A.
2015 Supp. 77-621(c). The sole basis alleged here is that the Board erroneously
interpreted or applied the law. K.S.A. 2015 Supp. 77-621(c)(4). Rhodenbaugh argues the
Board and the district court erroneously interpreted and applied the law pertaining to
unemployment benefits, which are contained in K.S.A. 44-701 et seq., and that she is
entitled to receive unemployment benefits under K.S.A. 2014 Supp. 44-706(b).


       Individuals who are unemployed because they were discharged for misconduct
connected with their work are ineligible for unemployment benefits. K.S.A. 2015 Supp.
44-706(b). The employer bears the burden of proving misconduct by a preponderance of
the evidence. Farmland Foods, Inc. v. Abendroth, 225 Kan. 742, 743-44, 594 P.2d 184
(1979) (relying on K.S.A. 1978 Supp. 44-706(b), which also provided an individual was
disqualified for benefits if "'he or she ha[d] been discharged for breach of a duty
connected with his or her work reasonably owed an employer by an employee'"). Under


                                               12
this standard, the evidence must demonstrate "'a fact is more probably true than not true.'
[Citation omitted.]" Gannon v. State, 298 Kan. 1107, 1124, 319 P.3d 1196 (2014).


       Specifically, the relevant statute provides:


       "An individual shall be disqualified for benefits:


               ....


               "(b) If the individual has been discharged or suspended for misconduct connected
       with the individual's work. . . .


               (1) For the purposes of this subsection, 'misconduct' is defined as a 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. 2015 Supp. 44-706.


       Rhodenbaugh argues her refusal to receive the flu vaccine did not constitute
statutory misconduct. She contends she owed no duty to the hospital because receiving a
flu vaccination "cannot be a duty if there are exceptions to the rule." She also argues that
even if the hospital had a legal right to terminate her employment, it did not have the
right to deny her unemployment benefits because her refusal to get a flu vaccination was
for good reason and did not constitute statutory misconduct. She believes the Board
conflated these two issues. We address these claims below in examining the statutory
definition of "misconduct" in K.S.A. 2015 Supp. 44-706(b)(1).


       Under the KJRA, we must determine whether an agency's factual findings are
supported by substantial evidence when considered in light of all evidence of record. See
K.S.A. 2015 Supp. 77-621(c)(7), (d); Sierra Club v. Moser, 298 Kan. 22, 62-63, 310 P.3d

                                                    13
360 (2013). This analysis requires us to: (1) review evidence both supporting and
detracting from an agency's findings; (2) examine the presiding officer's credibility
determinations, if any; and (3) review the agency's explanation as to why the evidence
supports its findings. K.S.A. 2015 Supp. 77-621(d); Williams v. Petromark Drilling, 299
Kan. 792, 795, 326 P.3d 1057 (2014). Substantial evidence is such legal and relevant
evidence as a reasonable person might accept as being sufficient to support a conclusion.
Gannon, 298 Kan. at 1175. In reviewing the evidence, we do not reweigh the evidence or
engage in de novo review. K.S.A. 2015 Supp. 77-621(d).


Hospital safety rule


       We first examine whether the hospital's policy change was a company rule, or
more specifically here, a safety rule. See K.S.A. 2015 Supp. 44-706(b)(1).


       The district court found: "It is uncontested that the newly implemented policy is a
company rule, and a safety one at that." On appeal, Rhodenbaugh does not dispute that
the flu vaccination policy was a safety rule. Furthermore, at the telephone hearing, Dr.
Samuel Claassen, a staff physician in internal medicine at McPherson Hospital, testified
that the flu vaccine is 60 to 70 percent effective and it was reasonable for the hospital to
require flu vaccinations to lessen the risk of exposing the staff and patients to the flu. He
also testified that the benefits of receiving the flu vaccine outweighed the risks.
Additionally, Wenger testified the mandatory flu vaccination policy was implemented to
protect the health and safety of the patients and the hospital employees. Nothing in the
record suggests that the newly implemented rule was something other than a company
safety rule. Accordingly, the district court did not err in this finding.




                                              14
Employee's awareness of rule


       We next ask whether Rhodenbaugh knew or should have known about the rule, as
required by K.S.A. 2015 Supp. 44-706(b)(1)(A).


       Rhodenbaugh received the email dated September 3, 2013, notifying the
employees of the policy change, and the new policy was uploaded in the hospital's shared
folder. She further testified she had access to the hospital's shared drive. Rhodenbaugh
also testified her supervisor had informed her the flu vaccination was mandatory and
failure to receive one would result in termination. After she refused to receive a flu
vaccination, she was notified via certified mail on October 23, 2013, that she still needed
to get the mandatory flu vaccine or have a declination signed by a physician or clergy.
Rhodenbaugh testified she was aware of that letter and its contents. Thus, Rhodenbaugh
knew about the rule.


Lawfulness of rule and rule's relation to job


       We next ask whether the hospital's implementation of the flu vaccination policy
was lawful and related to the job. See K.S.A. 2015 Supp. 44-706(b)(1)(B).


       The district court found: "The rule is also lawful because there is nothing in
Kansas or Federal law that prevents the Hospital from requiring vaccinations. It is a legal
policy to implement, and provides for exceptions that are nearly identical to Kansas'
exceptions to vaccinations for schoolchildren. See K.S.A. 72-5209(b)." Rhodenbaugh
does not challenge this finding, and upon further research, nothing indicates this is an
incorrect finding. Therefore, we find the subsection was satisfied—the policy change was
lawful and reasonably related to the job.




                                             15
Fair and consistent enforcement of rule


       Lastly, we determine whether the challenged rule was fairly and consistently
enforced, as is required under K.S.A. 2015 Supp. 44-706(b)(1)(C).


       Rhodenbaugh argues: "[T]aking a flu shot cannot be a duty if there are exceptions
to the rule and employees subject to the exception merely have to wear a mask." At oral
argument, Rhodenbaugh seemed to contend that because she was willing to wear a mask
and had good reasons for not wanting a flu shot, the hospital should have granted her a de
facto exception to the rule.


       Rhodenbaugh fails to cite any authority for this claim, and her argument has no
logical appeal. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645,
294 P.3d 287 (2013) (finding a point raised incidentally in a brief and not argued therein
is deemed abandoned). Whether the hospital should have included a "catch-all" exception
to its policy to include persons such as Rhodenbaugh is a policy matter best left to the
employer. Cf. Simms v. Oklahoma ex. rel. Dept. of Mental Health, 165 F.3d 1321, 1330
(10th Cir.), cert. denied 528 U.S. 815 (1999) (Courts do not sit as "'super personnel
department[s]'" free to second-guess the business judgment of an employer). Nothing in
the record indicates the hospital failed to fairly and consistently enforce its general rule
requiring a flu shot or the stated exceptions to that rule. Accordingly, the hospital has
shown that the requirements for statutory misconduct are met.


                                    CONCLUSION


       Having reviewed the facts of record, we find the hospital met its burden of proving
by a preponderance of the evidence "misconduct" as defined by K.S.A. 2015 Supp. 44-
706(b)(1) and that Rhodenbaugh has not met her burden of proving the invalidity of the
agency action. Rhodenbaugh owed a duty to the hospital to follow the safety rule by

                                              16
either receiving the flu vaccine or meeting the applicable exemptions. Her failure to
comply with the rule met the statutory definition of job-related misconduct and thus
disqualified her for unemployment benefits.


       Affirmed.




                                            17
