Jordan

Entry_Date: 110404

Appellant: Elizabeth M. Jordan

Appellee: State of Oklahoma ex rel. Oklahoma Employment Security Commission, State of Oklahoma ex rel. Oklahoma Employment Security Commission Board of Review and FAA Employees Credit Union

Jurisdiction: Court of Appeals of Oklahoma, Division No. 4

Hearing_Date: October 26, 2004

Text_of_Rule: ( Goodman )
( Canadian County - Edward C. Cunningham )

Not Published
AFFIRMED
Mark W. Osby, WHEATLEY, SEGLER & OSBY, LLC, Yukon, Oklahoma, For
Plaintiff/Appellant
Teresa Thomas Keller, Oklahoma City, Oklahoma, For Defendant/Appellee
Oklahoma Employment Security Commission
Richard D. Forshee, WILLIAMS BOX, FORSHEE & BULLARD,
P.C., Oklahoma City, Oklahoma, For Defendant/Appellee FAA Employees Credit Union,
OPINION
Employee Elizabeth M. Jordan appeals the district court's September 26, 2003, order affirming the
order of the Oklahoma Employment Security Commission Board of Review (Board) which determined
Employee was not entitled to receive unemployment benefits after being terminated from her position
with the FAA Employees Credit Union (FAA). Based upon our review of the facts and applicable law, we
affirm.
FACTS
Employee was employed by FAA from September 2001 until June 24, 2002, when she
was terminated from her at-will position in the marketing department. The validity of the reason
given for her termination is the core issue of this appeal.
FAA had a written policy prohibiting
its employees from using FAA's office equipment, including computers, for personal use. According to
the record, Employee was using a computer to look for other jobs, had prepared and stored a personal
resume on her computer, and received non-business related e-mails, all in violation of the office
policy. Employee admitted to these allegations, but countered that she only used the office computer
for personal use before or after work, or on her lunch period. Further, she alleged other employees
did the same thing, but only she was terminated. There is also evidence in the record that
Employee's productivity was inadequate, and that she was insubordinate.
According to the hearing
transcript, on the day she was terminated, the following conversation took place:
"Hearing
Officer: Was she discharged from the employment?
"Ms. Gamblin supervisor: Uh, she was asked to
resign.
"Hearing Officer: All right. Could you describe the circumstances that led up to or
caused that circumstance?
"Ms. Gamblin: Uh, I basically called her in and said uh, you know it's
not working out. We'd like you to resign and if you don't resign, we'll terminate you. She said she
would resign and, it was about a minute conversation. It was very short.
"Hearing Officer: Okay.
What caused you to do that?
"Ms. Gamblin: Uh multiple things. One of the things was her job
searching. One of the . . . . There was multiple things that caused me to do that, but one of the
things that caused me to do if was her job searching, searching for another job.
"Hearing
Officer: Well, you'll need to tell me what those things were, so do you want to start with that one?
"Ms. Gamblin: Okay, uh, she was using her computer at work to build her own resume. She had
drafted a letter to another employer. She also had signed up for two search engines via the
internet, to search for jobs on her computer at work.
"Hearing Officer: All right. How did you
become aware of that?
"Ms. Gamblin: Through some sources. People told me what was going on."
Employee sought unemployment benefits. Her request was denied in a decision mailed July 18, 2002.
The reason given for the denial of benefits was her violation of company policy which prohibited the
use of company computers for personal use. This amounted to misconduct, which disqualified Employee
from receiving benefits.
Employee appealed her denial of benefits to the Appeal Tribunal of the
OESC (Tribunal) for an evidentiary hearing. The hearing was held August 29, 2002. Employee and her
supervisor testified before a Hearing Officer (Officer). At the conclusion of the hearing, the
Officer made the following determination, in an order mailed September 4, 2002.
"-3-
"The
claimant at times made use of her employment computer for personal purposes. The claimant did not
understand that personal use of the computer while not on company time was within the scope of the
policy. The bulk of her use was before or after work hours, or during lunch breaks, but a small part
of it was during business hours. The claimant had been cautioned in 2001 about spending too much
time playing solitaire on her computer during work hours. Such practices were common among the
employees and the employer was trying to curb misuse of time. The claimant ceased that conduct . . .
.
"-4-
"At some undisclosed date prior to termination, the Human Resources/Marketing Manager
received information from another employee causing her to believe that the claimant had a copy of
claimant's resume on the business computer. On June 24, 2002, the Manager advised the claimant that
she had the option of resigning or being discharged. The Manger did not identify the reasons for
this action . . . .
"-5-
"Though the written policy stated that personal use of all equipment
and supplies was not authorized, the practice of the employer in most instances was to disregard
such use unless it became excessive. A considerable number of employees had, over time, been known
to have used employer computers during business hours for personal purposes. Some were reprimanded.
None were discharged. The employer was of the opinion that an employee's use of the business
computer to seek other employment constituted more grievous misconduct that than did other personal
uses.
"-7-
"The employer's written policy prohibited all personal use, to any extent
whatsoever, of computers, copiers and other equipment, even, it would seem, a telephone. The actual
practice of the employer was to tolerate personal use, even during business hours, if that use
wasn't excessive. None of the several other employees known by the employer to have violated the
written restrictions on computer use was discharged. The claimant's conduct did not differ from
conduct that the employer regularly tolerated. The employer took special action in the claimant's
case because it involved a job search. The policy refers to personal computer use as not
"authorized." In the same part of the policy, offensive e-mail was stated to be not "tolerated." The
difference in terms implies that the former would be viewed less harshly than the latter. Though a
small portion of the claimant's activities was done during business hours, the vast bulk was
performed on her free time and did not affect productivity. The employer discharged the claimant
prior to any knowledge of the extent of the claimant's activities, other than that she was reported
to have a copy of her resume on her computer. The claimant did not understand that personal use
during off duty time violated the policy. The employer's previous actions made it appear that
productivity was the issue. While the claimant may have violated the strict terms of the written
policy, she did so largely outside her work hours and not in a manner exceeding other employees'
tolerated conduct . . . ."
The Tribunal's Officer determined Employee was eligible for benefits.
FAA appealed the Tribunal's order to the Board. In an opinion mailed to Employee on October 21,
2002, the Board reversed the decision of the Tribunal and denied Employee any benefits. The Board
made a factual finding that Employee:
"could not have been unaware that she was misusing the
employer's assets, equipment and time when she used them to look for another job. Her conduct was an
act or course of conduct evidencing such willful or wanton disregard of employer's interest as is
found in deliberate violation or disregard of standard of behavior which employer has the right to
expect of his employee . . . ."
Employee then filed a petition for review with the Canadian
County District Court, seeking review of the Board's decision. In an order filed September 26, 2003,
the district court affirmed the Board's order. Employee appeals.
STANDARD OF REVIEW
Appeals
from the district court reviewing decisions of the Board present questions of law. The factual
findings of the Board, if supported by evidence, shall be conclusive. See 40 O.S.
2-610 (2001).1 Furthermore, the findings, decisions, and orders of an administrative body are
presumptively correct, absent valid, substantial, competent evidence to the contrary. This court may
not substitute its own findings for those of the administrative body, especially if that body is
operating within its own specialized area of expertise. Tulsa Area Hosp. Council, Inc. v. Oral
Roberts Univ., 1981 OK 29, 626 P.2d 316; R&R Eng'g Co. v. Oklahoma Employment Sec. Comm'n, 1987 OK
36, 737 P.2d 118. Unless that presumption is overcome by the evidence, we will affirm the decision
of the Board, even if the evidence would have supported a different result. See Dixon v. Roberts,
1993 OK CIV APP 15, 853 P.2d 235, and cases cited therein.
ANALYSIS
It appears undisputed that
Employee used FAA computers for non-business purposes, in violation of FAA's business use policy.
The Officer's findings of fact essentially states that though other employees were doing the same
thing, the reason Employee was terminated was because she was using the business computer to look
for another job. The Officer also determined that Employee was not aware that using office computers
for personal use - even on lunch hours and after work - was still a violation of office policy. The
Board's finding of fact, on the other hand, concluded that Employee had to have known that such use,
even though done after-hours, was nevertheless a violation of policy, constituted misconduct, and
therefore was a basis for denial of employment benefits.
Employee argues that the reason given
her for her termination - that "it's not working out" - was an insufficient basis for termination.
Employee contends the full extent of her personal use of her FAA computer was not discovered until
after her termination. Therefore, Employee argues, there was no evidence of misconduct at the moment
of her termination. Employee cites selected portions of the supervisor's testimony in support of her
position.
Our review of the entire record reflects that FAA had many reasons for terminating
Employee, though her supervisor articulated only one. The supervisor testified that before asking
Employee to resign or be terminated, she was aware that Employee had prepared a resume on the
computer. Indeed, that was subsequently confirmed by both Employee's testimony and an examination of
the computer itself after Employer's departure. There is no suggestion in this record that FAA
manufactured a post-termination reason for Employee's termination. While the supervisor's statement
that "it's not working out" is somewhat vague, the undisputed fact remains that Employee was aware
it was against FAA policy to use the computer for personal use; that Employee admitted using it for
such; and that such use constituted misconduct, in that Employee's act of using the computer to
search for a new job was inimical to FAA's interests.
We find, consistent with the standard of
review set out above, that the Board's finding of fact is conclusive and is supported by the
evidence. Even though the Officer's findings were equally supported in the record, we are not at
liberty to substitute our findings for that of the Board. Accordingly, the district court correctly
affirmed the Board's order. The district court's September 26, 2003, order is affirmed.
AFFIRMED.
STUBBLEFIELD, C.J., ACTING P.J., concurs; and REIF, J. (sitting by designation), dissents.

(FOOTNOTES):
1 In any proceeding under this section the findings of the Board of Review as to the
facts, if supported by evidence, shall be conclusive and the jurisdiction of said court shall be
confined to questions of law.
REIF, J. (sitting by designation), dissenting:
If "misconduct"
is the basis to deny a resigning employee benefits, the employer who seeks such resignation in lieu
of termination should clearly articulate, at the time the employment relationship is ended, that
some specific misconduct is the reason the employer seeks to end the employment relationship. No
specific misconduct was articulated at the time Employer sought and obtained Claimant's resignation
in lieu of termination and, therefore, Employer should not be permitted to assert such a ground when
faced with liability for unemployment compensation. The denial of unemployment compensation on the
ground of "misconduct" is erroneous as a matter of law and should be reversed.

Disposition: ** MANDATE ISSUED - NOVEMBER 19, 2004 **

Citation: Unpublished Opinion No. 99,955 (2004)