( Joplin )
( Tulsa County - Jefferson D. Sellers )
David T. Hopper, Oklahoma City
B. Joyce Smith, Laura Emily Frossard, Legal Services of Eastern Oklahoma, Inc., Tulsa, Oklahoma, For Appellee
1/ The Oklahoma Employment Security Commission (OESC) seeks review of an order of the trial court reversing an order of the OESC denying unemployment benefits to Deborah E. Davis (Employee). OESC asserts that evidence appears in the record to support the OESC determination, and that the trial court consequently erred in reversing the order denying benefits, in essence, improperly substituting its judgment for that of OESC on the facts. We agree, and reverse the order of the trial court.
2/ Employer terminated Employee in 1995 for violation of Employer's policy requiring all employees to report to Employer any violation of criminal drug statutes after Employer learned Employee had pled guilty to a drug-related offense in 1992. Employee applied for unemployment benefits. The local OESC office initially denied the claim, finding Employee had been discharged for cause.
3/ Employee sought review before the Appeal Tribunal. The Hearing Officer heard testimony from Employer to the effect that upon Employee's hospitalization in 1995 for what appeared to be "a self-induced drug use reason," Employer searched local public records, and discovered that Employee had pleaded guilty to a drug-related criminal offense in January 1992 without reporting the conviction to Employer. Testimony of Employer also showed that Employer had adopted a drug free workplace policy in accord with the federal Drug Free Workplace Act, published that policy in the 1990 revision of the Employee Handbook, and adopted a self-reporting provision in the 1992 Handbook revision distributed "a few days" after Employee's guilty plea in January 1992. Employer also testified that Employee "had worked directing sic with the vice-president of Human Resources back in 1991 for an admitted substance abuse problem and was required to seek treatment for that problem at that time" under a voluntary, Employer-sponsored program.
4/ Employee testified that she instructed her lawyer, at the time of her arrest for the 1992 offense, to call her supervisor (the vice-president of Human Resources) to report the incident, but that the lawyer did not apparently do so. Employee also testified that when she returned to work, she talked to her supervisor because she "realized she needed to go to rehab.," that she "didn't think about explaining why she didn't come back to work" the day of her arrest, and that she "didn't know she was supposed to let Employer know on a conviction" because she never read the revised Employee Handbooks given to her.
5/ On consideration of the evidence, the Hearing Officer affirmed the OESC's initial denial of the claim, finding:
"The claimant was discharged. When an individual is discharged, the burden of proof rests upon the employer to show misconduct connected to the work. In the instant case, the employer has sustained that burden as there is evidence the claimant violated a known policy concerning the use of drugs."
Employee sought further review before the Board of Review, which adopted the findings of the Hearing Officer, and affirmed denial of the claim.
6/ Employee then commenced an action for review by petition to the trial court. Upon consideration of the record, the trial court reversed the OESC's order denying the claim, finding "that the record in the present case contains no evidence of when Employee received advice on the work rule at issue," "that ... as a matter of law, the conclusions of the hearing officer are contrary to law and are not supported by the evidence," and remanded the matter to the OESC with instructions to award Employee benefits. OESC appeals.
7/ In its first proposition, OESC asserts that the question of disqualifying misconduct constitutes a question of fact, on which question, the OESC's determination is conclusive if supported by the evidence, and that there appears in the record evidence, which if believed, showed that Employee violated Employer's known drug free workplace and self-reporting policies.