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OSCN Found Document:MARCHANT v. HEARTLAND PARTS AND SERVICES, INC.
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MARCHANT v. HEARTLAND PARTS AND SERVICES, INC.
2015 OK CIV APP 38
348 P.3d 225
Case Number: 112258
Decided: 04/10/2015
Mandate Issued: 05/07/2015
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I
Cite as: 2015 OK CIV APP 38 , 348 P.3d 225
CASS R. MARCHANT, Plaintiff/Appellee,
v.
HEARTLAND PARTS
AND SERVICES, INC., Defendant/Appellant,
and
BOARD OF REVIEW OF THE
OKLAHOMA EMPLOYMENT SECURITY COMMISSION; and THE OKLAHOMA EMPLOYMENT SECURITY
COMMISSION, Defendants/Appellees.
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY,
OKLAHOMA
HONORABLE LISA T. DAVIS, TRIAL JUDGE
AFFIRMED
Kimberly E. Marchant, Oklahoma City, Oklahoma, for Plaintiff/Appellee,
Sam
C. (Van) Bingaman, III, BINGAMAN LAW OFFICE, Chickasha, Oklahoma, for
Defendant/Appellant,
Robert C. Newark, III, David W. Bryan, Teresa Keller,
Oklahoma City, Oklahoma, for Defendants/Appellees.
BRIAN JACK GOREE, PRESIDING JUDGE:
¶1 Defendant/Appellant, Heartland Parts and Services, LLC (Employer), seeks
review of the district court's order reversing the decision of the Appeal
Tribunal of the Oklahoma Employment Security Commission (OESC), which denied
unemployment benefits to Plaintiff/Appellee, Cass R. Marchant (Employee), on the
basis of misconduct. At issue is whether pre-employment conduct, in the absence
of any willful or wanton concealment or other disregard of Employee's duties and
obligations to Employer, constitutes "misconduct connected with his last work,"
within the meaning of 40 O.S. Supp.
2014 §2-406(A), so as to deprive him of entitlement to unemployment
benefits. We hold it does not, and affirm.
¶2 The facts are undisputed. Employer hired Employee in February 2012 to work
in the parts department. Four months later, Employer promoted Employee to sales.
Employer neither informed Employee that he would have to be insurable nor
inquired about his driving record. When Employer's insurance came up for renewal
in October 2012, Employer asked Employee to sign a release of his driving
record, which Employee did. The insurer notified Employer that Employee would be
an excluded driver because of his driving record. Employer then discharged
Employee. Employer's general manager testified that he no longer had a parts
department position available at the time, both he and Employee were shocked by
the insurer's action, and Employee would still be working for Employer but for
the insurance exclusion.
¶3 Employee applied for unemployment benefits. Employer notified the OESC
that Employee was terminated because his job duties required him to drive
vehicles and he was no longer able to perform those duties. After an evidentiary
hearing, OESC's hearing officer found that Employee was discharged for
misconduct because he was not insurable based on his own actions, i.e., his
driving record.
¶4 Employee appealed the hearing officer's decision to OESC's Board of
Review, which affirmed the decision. Employee then sought judicial review by the
district court pursuant to 40 O.S.
2011 §2-610. The district court ruled that the undisputed facts were
insufficient to support a finding that Employee was discharged for job-related
misconduct under §2-406. It reversed the denial of unemployment benefits and
remanded for entry of an appropriate order.
¶5 Employer appeals from the district court's order. The question of whether
certain activity constitutes misconduct sufficient to deprive an employee of
entitlement to unemployment benefits is a question of law which we will review
de novo. Kakkanatt v. Oklahoma Employment Sec. Comm'n , 2008 OK CIV APP 38, ¶10 , 183 P.3d 1032, 1034 .
¶6 Employer contends Employee was discharged for misconduct because he was
not insurable based on his own actions. In support, Employer quotes from
portions of the OESC's Unemployment Insurance Precedent Manual summarizing
unappealed administrative decisions by its hearing officers and Board of Review.
The Manual does not contain promulgated administrative rules which would have
the force and effect of law and would be entitled to our deference. Estes v.
ConocoPhillips Co. , 2008 OK
21, ¶¶10-12 , 184 P.3d 518,
523 .
¶7 We are guided by the Oklahoma Statutes and the case law applying them.
Section 2-406 provides, in relevant part:
A. An individual shall be disqualified for benefits if he or she has been
discharged for misconduct connected with his or her last work. If discharged
for misconduct, the employer shall have the burden to prove that the
employee engaged in misconduct as defined by this section.... Once this
burden is met, the burden then shifts to the discharged employee to prove
that the facts are inaccurate or that the facts as stated do not constitute
misconduct as defined by this section....
B. Acts which constitute misconduct under this section shall be limited
to the following:
1. Any intentional act or omission by an employee which constitutes a
material or substantial breach of the employee's job duties or
responsibilities or obligations pursuant to his or her employment or
contract of employment;
...
3. Indifference to, breach of, or neglect of the duties required which
result in a material or substantial breach of the employee's job duties or
responsibilities;
...
C. Any misconduct violation as defined in subsection B of this section
shall not require a prior warning from the employer. As long as the employee
knew, or should have reasonably known, that a rule or policy of the employer
was violated, the employee shall not be eligible for
benefits.
¶8 The Court in Vester v. Bd. of Review of Oklahoma Employment Sec.
Comm'n , 1985 OK 21, ¶12 , 697 P.2d 533, 537 , cited Boynton
Cab Company v. Neubeck , 237 Wis. 249 , 296 N.W. 636, 640 (1941), in adopting
a definition of misconduct under this section:
[C]onduct 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.
The Court then ruled that frequent health-related absences, although
justifying discharge, was not willful misconduct because the requisite state of
mind, "wilful or wanton disregard of an employer's interests," was absent.
Id. at ¶18.
¶9 In Kakkanatt v. Oklahoma Employment Sec. Comm'n , 2008 OK CIV APP 38, ¶¶12-14 , 183 P.3d 1032, 1034 , the Court
examined the employee's state of mind at the time the disqualifying event
occurred. Applying Vester , the Court looked for deliberate disregard of
the employer's interests and the duties the employee owed the employer.
Id. at ¶12. It held that a nurse's single instance of ordinary negligence
was not disqualifying misconduct. Id. at ¶20.
¶10 In the present case, the sole disqualifying event was Employee's driving
misconduct, which occurred pre-employment, at a time when Employee owed no duty
to Employer. Therefore Employee could not have deliberately disregarded his
duties to Employer at the time the disqualifying event occurred. Employer put on
no evidence that Employee disregarded any duty to Employer while applying for
employment or during their employer/employee relationship. We hold that
pre-employment conduct, in the absence of any willful or wanton concealment or
other disregard of Employee's duties and obligations to Employer, does not
constitute "misconduct connected with his last work," within the meaning of 40 O.S. Supp. 2014 §2-406(A), so as
to deprive Employee of entitlement to unemployment benefits.
¶11 The district court's order is AFFIRMED.
BUETTNER, J., and BELL, J., concur.
Citationizer © Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Court of Civil Appeals Cases
Cite Name Level
2008 OK CIV APP 38 , 183 P.3d 1032 , KAKKANATT v. OKLAHOMA EMPLOYMENT SECURITY COMMISSION Discussed at Length
Oklahoma Supreme Court Cases
Cite Name Level
2008 OK 21 , 184 P.3d 518 , ESTES v. CONOCOPHILLIPS CO. Discussed
1985 OK 21 , 697 P.2d 533 , Vester v. Board of Review of Oklahoma Employment Sec. Com'n Discussed
Title 40. Labor
Cite Name Level
40 O.S. 2 -406, Discharge for Misconduct Discussed
40 O.S. 2 -610, Judicial Review Cited