( Stubblefield )
( Comanche County - Allen McCall )
REVERSED
Vickie C. Leyja, Lawton, Oklahoma, For Plaintiff/Appellee
Teresa Thomas Keller, OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Oklahoma City, Oklahoma, For Defendant/Appellant
OPINION
The Oklahoma Employment Security Commission appeals from judgment of the District Court of Comanche County reversing a determination by the Board of Review of the Oklahoma Employment Security Commission that Claimant, Demetris G. Matthews, is entitled to unemployment benefits. The issue on appeal is whether the Board erred in determining that Employer, J.W. Doolin, did not satisfy his burden of proving misconduct by Claimant. We conclude the Board did not err. Therefore, the district court's judgment overturning the Board's decision was in error, and we reverse the judgment.
FACTS AND PROCEDURAL HISTORY
Claimant was employed as a receptionist by Employer from October 18, 2002, to July 7, 2003. Employer discharged Claimant when she failed to report for work or call in on July 3, 2003. Claimant sought unemployment benefits and the Commission granted those benefits on August 15, 2003, over Employer's objection.
Employer appealed and a hearing was held by telephone before the Commission's administrative hearing officer. Employer and his legal secretary appeared and gave testimony. Claimant did not appear.
Employer's legal secretary, Priscilla Campbell, testified that on July 2, 2003, Claimant "told me that she would be taking a road trip over the 4th of July weekend, and that she would not be in the office on the July 3, 2003 . . . . I asked Claimant if she discussed being gone on the 3rd with J.W. Doolin and she said no. I advised her to contact Mr. Doolin to get clearance for her road trip. She did not respond." Both Employer and Campbell testified that Claimant had always called if she needed to be absent from work. Both stated that Claimant did not call on July 3rd to report or explain her absence. Employer dismissed Claimant on July 7th.
The hearing officer issued her decision on October 3, 2003, affirming the Commission's decision. In her opinion, she stated:
"Claimant had missed work before but she had always gotten the employer's approval before. On July 3, 2003, claimant did not report to work and did not call in. She had told a secretary beforehand that she was going to be out of town that day.
* * * * * * * *
"Claimant was discharged but not for misconduct connected to the work. By the employer's own admission, claimant never failed to report to work or call in unapproved before the final incident. She had never been warned about attendance because she had always had good attendance. Therefore claimant exhibited an isolated incident of poor judgment when she failed to report to work or call in for the one day. The employer may have had a good business reason to discharge her, but one incident, standing alone, without warning, does not measure to misconduct as defined in Pester v. Board of Review. The employer did not carry the burden of proof to prove misconduct connected to the job by a preponderance of the evidence. Claimant is entitled to benefits."
Employer appealed to the Board, which affirmed the hearing officer's decision on November 7, 2003. Employer then appealed to the district court and that court reversed the Board's decision on May 27, 2004. The Commission now seeks this Court's review.
DISCUSSION OF ISSUES
Title 40 O.S. 2-406 (2001) provides that "an individual shall be disqualified for benefits if he has been discharged for misconduct connected with his last work, if so found by the Commission."
Misconduct disqualifying a claimant from unemployment benefits is "conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee." Tlester v. Bd. of Review of Okla. Employment Sec. Comm'n, 1985 OK 21, 12, 697 P.2d 533, 537 (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). The employer bears the burden of proving misconduct. Vester at n.8. Whether misconduct occurred is a question of fact. Nordam v. Bd. of Review of Okla. Employment Sec. Comm'n, 1996 OK 110, 10, 927 P.2d 556, 559. The standard by which courts review the Board's decision is a matter of statutory law. "The findings of the Board of Review as to the facts, if supported by evidence, shall be conclusive and the jurisdiction of the reviewing court shall be confined to questions of law." 40 O.S. 2-610(1) (2001). Our standard of review is the same as the district court's. Gilchrist v. Bd. of Review of Okla. Employment Sec. Comm'n, 2004 OK 47, 6, 94 P.3d 72, 74. We are bound by the Board's findings if there is any evidence in the record to sustain them. Nordam at 10, 927 P.2d at 559.
Employer contends that Claimant's deliberate failure to report for work without calling in or obtaining permission was misconduct disqualifying her from benefits. The Board concluded it was not. The testimony of Employer Doolin and his legal secretary supports the Board's conclusion that Claimant's actions were "an isolated incidence of poor judgment." See Gilchrist at 7, 94 P.3d at 74; Vester at 12, 697 P.2d at 536-37.
Employer asserts that the Board's conclusion that Claimant informed a secretary about her planned absence is not supported by any evidence. This argument completely overlooks the testimony of legal secretary Campbell that Claimant did tell her she planned to be gone. Furthermore, we reject Employer's assertion that there are no degrees of misconduct. He claims that was the holding in Nordam, but in reality the Court rejected that very argument. Nordam at 11-12, 925 P.2d at 559. The Oklahoma Supreme Court has consistently observed that conduct sufficient to warrant termination is not necessarily misconduct disqualifying one from receiving unemployment benefits. Vester at 14, 697 P.2d at 538-39.
CONCLUSION
The Board of Review concluded that Employer did not satisfy his burden of proving sufficient misconduct to deny Claimant unemployment benefits. There is evidence in the record supporting that conclusion and, therefore, the district court erred in reversing the Board's decision. We reverse the judgment of the district court.
REVERSED.
TAYLOR, P.J., and GOODMAN, J., concur.