Harjo

Trial court petitioner, the Estate of Abbey Harjo ("Estate"), appeals the trial court's Order denying its Petition for Writ of Mandamus in this action for unemployment benefits.

I. BACKGROUND

Abbey Harjo ("Harjo") worked for Yale Cleaners as a steamer for thirty years. She voluntarily terminated her employment due to carpal tunnel syndrome. Harjo filed a claim for unemployment benefits on March 24, 1996. The Oklahoma Employment Security Commission ("OESC") found she was disqualified from receiving unemployment benefits pursuant to 40 O.S. 2-404 (1991) because she quit her employment without good cause connected to the work. The OESC, on April 11, 1996, also found her ineligible for unemployment benefits pursuant to 40 O.S. 2-205A (1991) because she had provided medical evidence that she was totally disabled and, therefore, was unable to seek and accept full-time employment as required to be eligible for unemployment benefits.

Harjo, through her counsel, sent notice to the OESC of her request for appeal of the OESC's April 11, 1996, decision disallowing unemployment compensation benefits. The OESC's Appeal Tribunal sent Harjo notice advising her that a telephonic hearing on her appeal would be held on May 31, 1996. The Notice set forth the legal issue to be covered at the appeal as follows:

"Section 2-404 of the O.E.S. Act provides a disqualification if it's found that a claimant left work voluntarily without good cause connected to employment. In determining the existence of good cause, there shall be considered, among other factors, the degree of risk involved to the claimant's health, safety, or morals, or changes in the contract of hire that affect working conditions, hours, or wages."

At the hearing on Harjo's appeal, Harjo's attorney, Thomas Whalen ("Whalen"), asked the Hearing Officer to clarify the issues to be considered at the hearing.

Mr. Whalen: Uh I would ask one question at this point. Uh I think at one of the earlier notices there was another issue that had been raised regarding to her Harjo's availability and I noticed it was not on this notice we got for hearing. Is that not being considered as an issue?

Hearing Officer: Uh, no sir. The letter of appeal did not address uh a particular determination. It just said please accept this letter as a request for appeal of your decision disallowing unemployment compensation benefits.

Mr. Whalen: Okay, but is that not an issue now then as to her availability for work?

Hearing Officer: She's been disallowed benefits under that section of the Act, but as far as this hearing is concerned, it's not an issue here because there was no appeal filed to that determination. Well, we couldn't tell what determination was appealed.

Mr. Whalen: Oh, I see.

Hearing Officer: There was no section of the Act listed in the letter of appeal, so the, we processed it as an appeal to the separation determination. Uh if the claimant wishes to appeal the uh able to work issue, an appeal, separate appeal would have to be filed on that issue.

Mr. Whalen: I see. Okay.

The Appeal Tribunal denied Harjo's appeal of the denial of unemployment benefits under Section 40 O.S. 2-404. This denial subsequently led to an appeal before the Oklahoma Court of Civil Appeals ("COCA") in Case Number 88,429.1 The COCA outlined, in its Memorandum Opinion dated February 3, 1998, the issue before it for determination as follows:

"This appeal concerns the denial of unemployment compensation benefits to Abbey Harjo on the ground that she voluntarily left her employment without good cause as provided in 40 O.S. 2-404 (1991). Upon review, we hold that it was error to deny Ms. Harjo benefits in view of the uncontroverted evidence that her continued employment would have been harmful to her health."

The COCA found that the uncontroverted evidence established harm- to-health good cause for leaving employment pursuant to 40 O.S. 2-404 and 40 O.S. 2-405. Thus, the COCA vacated the trial court's judgment "affirming the denial of unemployment compensation benefits to Abbey Harjo" . . . "with directions that the district court reverse the Board of Review's denial of Ms. Harjo's claim and remand the case to the Board of Review for entry of an award of benefits."

On remand, the trial court entered an Order, filed April 17, 1998, reversing the Board of Review's denial of Harjo's claim for unemployment compensation and remanding "to the Board of Review for entry of an award of benefits." In accordance with the trial court's Order, the Board of Review entered an Order, dated April 23, 1998, reversing the Board of Review's decision denying benefits. The Board specifically stated:

"IT IS THEREFORE ORDERED BY THE BOARD OF REVIEW that pursuant to the Order of the District Court of Tulsa County, State of Oklahoma, filed April 17, 1998, the Board of Review decision is REVERSED. Benefits are allowed effective March 24, 1996, if claimant meets all other requirements of the Oklahoma Employment Security Act."

The OESC then refused to pay Harjo unemployment benefits for the reason that Harjo had previously been "found ineligible for unemployment compensation pursuant to 40 O.S. 2-205A based on a finding that she was not able and available for work." The OESC contended that Harjo had failed to appeal this determination to the Board of Review, the district court, or the Oklahoma Court of Civil Appeals, and, therefore, waived the issue. The OESC also stated that Harjo had only filed a claim for one week of benefits and had not filed any claims for subsequent weeks of benefits.

Harjo's counsel, Mr. Whalen, sent the Board of Review a letter requesting the Board to enter an amended order directing the OESC to pay Harjo $3,770.00 in unemployment benefits. The Board declined to enter an amended award for the reason that Harjo had previously been denied benefits under Section 40 O.S. 2-205 because she was unable to do any work for which she had experience or had been trained. The Board noted that it had previously issued an order pursuant to the Court of Civil Appeals' decision which stated "that benefits were allowed effective March 24, 1996, if claimant meets all other requirements of the Oklahoma Employment Security Act."

Harjo died on June 27, 1998. The Estate filed a Petition for Writ of Mandamus in the Tulsa County district court on September 22, 1998, which the trial court denied. The Estate appeals.

II. STANDARD OF REVIEW

On appeal from the denial of a petition for a writ of mandamus, the appellant must show that the trial court abused its discretion in denying the requested relief. See Clay v. Independent School Dist. No. 1 of Tulsa CountY, 1997 OK 13, 31, 935 P.2d 294, 307; Dale v. City of Yukon, 1980 OK CIV APP 55, 14, 618 P.2d 954, 958. "In cases of equitable cognizance this Court will examine the record presented and draw its own conclusions but the judgment of the trial court will not be disturbed on appeal unless there has been an abuse of discretion." Dale, at 14, 618 P.2d at 958.

III. ANALYSIS

The Estate alleges on appeal that the trial court abused its discretion in failing to grant its Petition for Writ of Mandamus and, as a result, compel the OESC to pay the Estate unemployment compensation benefits. The Estate contends a mandamus was appropriate here because the trial court had a duty to enforce the Court of Civil Appeals' directive.

A mandamus is an extraordinary equitable remedy which is governed by statute. 12 O.S. 1451 (1991), Dale at 12, 618 P.2d at 957. The movant must allege in a mandamus action:

"1. a clear legal right on the movant's own part to have the things done which are asked for;

"2. the clear and indisputable legal duty of the respondent to do the things he is called upon to do and that it is a nondiscretionary act, or the movant must allege an arbitrary, capricious or unreasonable action done under the guise of exercise of discretion by the respondent that equals an abuse of discretion;

"3. that the writ will afford movant an adequate remedy; and 4. the inadequacy of any other remedy."

Dale, at 12, 618 P.2d at 957. Mandamus is inappropriate when the movant does not show a clear legal right thereto. Jones v. Shaw, 1965 OK 67, 8, 441 P.2d 990, 992.

It is undisputed here that the OESC entered an Order finding Harjo was ineligible for unemployment compensation benefits pursuant to 40 O.S. 2-205 (1991) because she was unable to do any type of work for which she had experience or had been trained. The record reflects that Harjo did not appeal this determination nor does the Estate dispute that she failed to appeal this decision. In fact, the Administrative Hearing Officer notified Harjo's counsel at the Appeal Tribunal hearing that the OESC's determination under Section 40 O.S. 2-205 had not been appealed and was therefore not before the Appeal Tribunal. The Administrative Hearing Officer instructed Harjo's counsel that a separate appeal on the Section 2-205 ineligibility determination needed to be filed. Harjo failed to file such appeal. Further, Harjo received notice of the appeal hearing that stated the hearing would cover the issue of the denial of benefits pursuant to Section 40 O.S. 2-404 The record does not contain evidence that Harjo or her counsel disputed this notice or requested an appeal on the Section 2-205 denial of benefits. Thus, the OESC's denial of benefits under Section 40 O.S. 2-205 became final and conclusive under Section 2-608. 2

The Estate argues that the OESC was required to enter benefits pursuant to the Court of Appeals' Opinion. However, the COCA's Opinion must be read in the context of the issue before that Court. The COCA specifically set forth the issue before it:

The COCA determined that it was error to deny Harjo benefits under Section 40 O.S. 2-404 and vacated the trial court's determination otherwise.

The Estate also argues the OESC's denial of unemployment benefits under Section 40 O.S. 2-505 violated her due process rights because she was never given any administrative or judicial review. The Employment Security Act sets forth the appeal process available to an employee who is denied unemployment benefits. See 40 O.S. 2-601 - 40 O.S. 2-614 (1991).

Here, Harjo did not avail herself of the appellate procedures available to her. These appellate procedures were sufficient to assure her due process and the fact she failed to avail herself of these review procedures benefits does not render the procedures inadequate. See Bostwick v. Atlas Iron Masters, Inc., 1988 OK CIV APP 20, 10, 780 P.2d 1184, 1187.

Harjo's failure to appeal the OESC's determination that she was ineligible for unemployment compensation benefits under Section 2-205 resulted in a final and binding determination pursuant to 40 O.S. 2-608 (1991).3 Thus, the Estate has failed to establish a clear, legal right to the unemployment compensation benefits. The trial court correctly denied the Estate's Petition for a Writ of Mandamus.

AFFIRMED.

REIF, J. (sitting by designation), and TAYLOR, J., concur.

(FOOTNOTES):

1 The record does not contain any evidence of the proceedings that occurred subsequent to the Appeal Tribunal hearing, but before the Court of Civil Appeals February 3, 1998, Memorandum Opinion.

2 See generally Gabbert v. Oklahoma Employment Security Comm., 1997 OK CIV APP 44, 943 P.2d 158; Bostwick v. Atlas Iron Masters, Inc., 1988 OK CIV APP 20, 780 P.2d 1184.

3 Section 40 O.S. 2-608 provides:

"Except insofar as reconsideration of any determination is had under Section 2-506, any right, fact, or matter in issue, directly passed upon or necessarily involved in a determination or redetermination which has become final, or in a decision on appeal under this subsection which has become final, shall be conclusive for all the purposes of this act as between the Commission, the claimant, and all employers who had notice of such determination, redetermination, or decision. Subject to appeal proceedings and judicial review as provided in this act, any determination, redetermination or decision as to rights to benefits shall be conclusive for all the purposes of this act and shall not be subject to collateral attack by any party."
Citation: Unpublished Opinion No. 92,678 (2000)