( Reif )
( Cleveland County - Tom A. Lucas )
REVERSED AND REMANDED WITH DIRECTIONS
Allan DeVore, Jacquelyn Thompson, THE DEVORE LAW FIRM, P.C., Oklahoma City, Oklahoma, For Appellant
Teresa Thomas Keller, Oklahoma City, Oklahoma, For Appellee Oklahoma Employment Security Commission
Karen E. Langdon, ASSISTANT GENERAL COUNSEL, Tulsa, Oklahoma, For Appellee Group Health Service d/b/a Blue Cross and Blue Shield of Oklahoma
OPINION
This case concerns the eligibility of Vielka M. Parton for unemployment compensation benefits following her termination from employment with Group Health Service of Oklahoma, Inc., on January 28, 2002. The Oklahoma Employment Security Commission denied Ms. Parton benefits based on a finding that she missed work on two occasions - January 22 and January 28, 2002 without complying with Employer's call-in policy to report absences. The Commission concluded that such violations of policy constituted willful misconduct that disqualified Ms. Parton for benefits pursuant to 40 O.S. 2-406 (2001). This denial was upheld on appeals that Ms. Parton pursued before the Board of Review and District Court of Cleveland County. Here on appeal from the district court, Ms. Parton contends that the lower tribunals erred as a matter of law in concluding these instances of non-compliance with the call-in policy to report absences constituted disqualifying misconduct. Upon review, we agree.
An employee's violation of an employer's policy does not constitute disqualifying misconduct unless it involves willful or wanton disregard for the employer's interests. Vester v. Board of Review, 1985 OK 21, 12, 697 P.2d 533, 537. Examples of willful or wanton disregard of an employer's interests include (1) deliberate violations or disregard of standards of behavior which employers have a right to expect of their employees, (2) carelessness or negligence of such degree or recurrence as to manifest equal culpability as willful or wanton conduct, (3) wrongful intent or evil design to harm employer's interests, or (4) an intentional and substantial disregard of employer's interests or of the employee's duties and obligations to employer. Id. In contrast, (1) mere inefficiency, (2) unsatisfactory conduct, (3) failure in good performance as the result of inability or incapacity, (4) inadvertencies or ordinary negligence in isolated instances, or (5) good faith errors in judgment or discretion, are not disqualifying misconduct. Id.
In the case at hand, neither of the instances when Ms. Parton failed to call in her absence fell within any of the examples of disqualifying misconduct set forth in Vester. Indeed, each instance involved nothing more than inadvertence or ordinary negligence.
Ms. Parton's immediate supervisor candidly admitted Ms. Parton's failure to call in on January 22, 2002, was most likely the result of a misunderstanding or miscommunication. Significantly, Ms. Parton did advise her supervisor the previous day that she would probably miss work on January 22 due to a court appearance for which she had received a subpoena. While this did not necessarily relieve Ms. Parton from calling in, it does explain how Ms. Parton could misunderstand that she did not need to call in.
As for her failure to call in on January 28, Ms. Parton testified that she took medication about 5:45 a.m. on the morning of January 28, and she believed the medication caused her to sleep until sometime after 2:00 p.m. This failure to call in was due to Ms. Parton oversleeping past the time for her to call in (10:00 a.m.). Even if the medication did not cause her to oversleep, and she overslept for other reasons, oversleeping involves nothing more than inadvertence or ordinary negligence.
We further observe that the employee relations manager for Employer testified that the only reason Ms. Parton was terminated was the single incident on January 28. The significance of this is two-fold. First, disqualification from benefits is a penal measure for wrongful conduct. If an employer is going to protest a terminated employee's claim for benefits on the ground of misconduct, then the employer should specify any and all instances of misconduct at the time of termination. It is unfair and improper for additional instances of misconduct to be raised during the course of proceedings on a claim for benefits, whether raised by the employer or the Commission on its own motion.
Second, it has been recognized that "an isolated infraction of a work rule not willfully or wantonly detrimental to the employer's interests is not misconduct within the meaning of 40 O.S. 2-406 (2001)." Yogle v. Oklahoma Employment Security Comm'n, 1991 OK CIV APP 84, 15, 817 P.2d 268, 271. Again, the failure to call in on January 28 was not willful or wanton, but merely due to inadvertence or ordinary negligence from oversleeping.
Based on the foregoing, we hold that the denial of benefits to Ms. Parton on the ground of disqualifying misconduct is erroneous as a matter of law. Accordingly, the district court erred in refusing to set aside the Board of Review's order that affirmed the Commission's denial. We reverse the district court's order and remand with directions that the district court set aside the Board of Review's affirmance of the denial and instruct the Board of Review to enter an award of benefits.
REVERSED AND REMANDED WITH DIRECTIONS.
WISEMAN, J., and RAPP, V.C.J. (sitting by designation), concur.