( Goodman )
( Nowata County - Carl G. Gibson )
AFFIRMED
Frank M. Hagedorn, HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., Tulsa, Oklahoma, For Appellant
J. Derek Ingle, RYAN, BISHER AND RYAN, Tulsa, Oklahoma, For Appellee Doug Tatum
Theresa Thomas Keller, OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Oklahoma City, Oklahoma, For Appellees
OPINION
J & G Steel Corporation (J & G) appeals the trial court's April 25, 2006, order denying its motion to vacate the court's order which affirmed a decision of the Board of Review of the Oklahoma Employment Security Commission granting unemployment benefits to Doug Tatum (Tatum). Based upon our review of the facts and applicable law, we affirm.
FACTS
Tatum was employed by J & G as a foreman beginning April 11, 1988. Tatum had considerable attendance and tardiness issues during 2002 and 2003, resulting in a final warning on August 13, 2003. After receiving the final warning, Tatum's attendance slightly improved. On September 23, 2003, Tatum asked his supervisor, Roy McClish (McClish), if he could leave early after learning his girlfriend/fiancee had been transported to the hospital. This request was approved. Tatum testified, however, that McClish also informed him that he could take the next day off. McClish denied this agreement. Nevertheless, on September 24, 2003, Tatum called-in and left a message for McClish informing him that his girlfriend was still in the hospital and that he would not be in that day. McClish testified the message Tatum left provided he would not be in indefinitely.
Upon learning Tatum would not be working, J & G's president, Jim Pharr (Pharr), made the decision to terminate Tatum's employment. Pharr testified he had previously spoken with Tatum on several occasions regarding his absentees and tardiness problems and that Tatum knew, after the final warning, that he would be fired for any more incidents.
Upon termination from employment, Tatum filed for unemployment compensation benefits with the Oklahoma Employment Security Commission (OESC). The OESC granted Tatum's request for benefits. J & G appealed this decision to the Appeal Tribunal. After a hearing on March 12, 2004, the Appeal Tribunal affirmed the OESC's decision on March 17, 2004. J & G promptly appealed the decision to the Board of Review (Board), which also affirmed the grant of benefits by decision mailed on May 21, 2004.
On June 1, 2004, J & G filed an appeal in district court seeking judicial review of the Board's decision. On October 5, 2005, the district court issued a minute order setting forth a briefing schedule. On December 9, 2005, prior to the deadline for J & G to file its brief, the district court issued a court minute affirming the Board's decision. On January 31, 2006, J & G filed a motion to vacate the court's decision. A hearing on the motion to vacate was held on April 25, 2006. A minute order recites that after arguments from the parties, the court advised J & G that it had read its response and that the court believed it did not impact its decision. Accordingly, the Court denied J & G's motion by order dated April 25, 2006. J & G appeals.
STANDARD OF REVIEW
Title 40 O.S. 2-610 (2001) provides,". . . 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 . . . ." This Court's standard of review on appeal is the same as that of the trial court. Further, the question of what constitutes "misconduct" sufficient to deprive a terminated employee of entitlement to unemployment benefits is a question of law. Gilchrist v. Oklahoma Employment Securities Comm'n, 2004 OK 47, 6, 94 P.3d 72, 74; Nordam v. Oklahoma Employment Securities Comm 'n, 1996 OK 110, T 12, 925 P.2d 556, 559.
ANALYSIS
Though set out in several proposition of error, the main issue on appeal is whether the district court erred in affirming the opinion of the Board awarding unemployment benefits to Tatum.
J & G asserts Tatum's actions amounted to misconduct sufficient to warrant a denial of benefits. J & G contends Tatum's excessive absenteeism and tardiness issues had been an ongoing problem for several years. J & G notes Tatum had received a final warning on August 13, 2003, informing him that his "attendance has gotten way out of hand, failure to improve will result in your termination. This is your final warning." Although J & G acknowledges that Tatum called-in on September 24, 2003, and left a message with his supervisor in accordance with company policy, J & G asserts that merely calling-in does not render the absence "excused." In addition, the message provided Tatum would not be back to work until some indefinite time in the future. Thus, Tatum's absence was deemed unexcused, a violation of company policy and, pursuant to his final warning, he was terminated. J & G asserts the evidence clearly demonstrates Tatum took no steps to ensure his employer's best interests were protected, resulting in misconduct sufficient to deny unemployment benefits.
OESC disagrees, asserting Tatum's conduct on September 24, 2003, did not amount to misconduct that would warrant a denial of benefits. Tatum testified his girlfriend was taken to the hospital on September 23, 2003, suffering from a serious condition. Tatum requested and received permission to leave early from work on September 23 to go to the hospital to be with her. Tatum also testified that his supervisor gave him September 24 off. Nevertheless, in accordance with company policy, Tatum testified that he called in on September 24 and left a message with his supervisor notifying him that he was still at the hospital and that he would not be at work.
Tatum further testified that his girlfriend had executed a durable power of attorney in August of 2003 naming him as her agent. This document authorized him to make medical decisions for her if she was unable to do so. Tatum testified that due to the severity of his girlfriend's situation on September 24, 2003, he believed he should stay at the hospital. Accordingly, OESC maintains that in addition to obtaining permission to be off work and calling-in in accordance with company policy, Tatum had a compelling, justifiable reason to be absent on September 24, 2003. Thus, Tatum's behavior did not amount to misconduct and he was properly awarded unemployment benefits.
Title 40 O.S. 2-406 (2001) provides that an individual shall be disqualified from receiving unemployment benefits if the employee was discharged for "misconduct." "Misconduct," as that word is used in 2-406, has been defined as:
". . . 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, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute."
Gilchrist, 2004 OK 47, at 6, at 7, 94 P.3d at 74-75 (citing Trester v. Oklahoma Employment Sec. Comm'n, 1985 OK 21, 15, 697 P.2d 533, 538). The burden is upon the claimant to show he qualifies for unemployment compensation, and upon the employer to show the employee was guilty of misconduct. Tynes v. Uniroyal Tire Co., 1984 OK CIV APP 20, 679 P.2d 1310; Blankenship v. Oklahoma Emp. Sec. Comm'n, 1971 OK 85, 486 P.2d 718.
In the present case, the record reflects no willful or wanton disregard of J & G's interests. Although Tatum had attendance and tardiness issues over the past couple of years of his employment, both Tatum's supervisor and J & G's president testified Tatum's attendance had improved some since his final warning. There was also evidence before OESC that Tatum had been given permission to be absent on September 24. In addition, Tatum called in and left a message with his supervisor, in accordance with company policy, informing him he would not be working on September 24. Finally, there are compelling and understandable reasons why Tatum chose to remain at the hospital on September 24. Although an employer has every right to terminate an employee for violating company policy regarding absenteeism and tardiness, especially of the chronic variety, the employer must still establish the employee's conduct amounted to willful misconduct within the meaning of 40 O.S. 2-406 . We agree with the Board that J & G did not establish Tatum's conduct amounted to willful misconduct within the meaning of 40 O.S. 2-406 thereby warranting a denial of his unemployment benefits claim.
J & G further asserts the hearing officer's decision contained factual errors and that the district court made factual and legal error in adopting the Appeal Tribunal's decision and in failing to make their own findings of fact and conclusions. We disagree. The district court and this Court's scope of review on questions of fact is set forth in 40 O.S. 2-610 (2001-2006).
Section 40 O.S. 2-610 (1) provides, in relevant part:
"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 the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may remand the case and order additional evidence to be taken before the Board of Review, and the Board may, after hearing the additional evidence, modify its findings of fact or conclusions, and file the additional or modified findings and conclusions, together with the transcript of the additional record, with the court."
Findings of fact by the Board are conclusive if supported by evidence. Id.; Tynes, 1984 OK CIV APP 20, at 12, 679 P.2d at 1313. After reviewing the record on appeal, we hold the findings of fact by the Board are supported by the evidence. Thus, we reject this proposition of error.
For its final proposition of error, J & G asserts the trial court erred in denying its motion to vacate. The record provides that after J & G filed its petition for judicial review, the district court issued a minute order setting forth a briefing schedule. Prior to the deadline for J & G to file its brief, the district court issued a court minute affirming the Board's decision.
On January 31, 2006, J & G filed a motion to vacate the court's decision. A hearing on the motion to vacate was held on April 25, 2006. A minute order recites that after arguments from the parties, the court advised J & G that it had read its brief and that the court believed it did not impact the court's decision. Therefore, the court denied J & G's motion by order dated April 25, 2006.
The standard of review of a trial court's ruling either vacating or refusing to vacate an order or judgment is abuse of discretion. Mortgage Elect. Sys. Inc. v. Crutchfield, 2006 OK CIV APP 95, 2, 144 P.3d 196, 197 (citing Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, 5, 13 P.3d 480, 482).
Although the trial court affirmed the Board's decision prior to receiving J & G's brief, the record provides the court considered and found that J & G's brief would not alter its decision when it.denied J & G's motion to vacate. Accordingly, we find the trial court did not abuse its discretion in denying the motion to vacate.
AFFIRMED.
WISEMAN, P.J., and FISCHER, J., concur.