JEFFREY A. BROYLES, Plaintiff/Appellee,
v.
OKLAHOMA
EMPLOYMENT SECURITY COMMISSION, Defendant/Appellant,
and
HOWARD GM, INC.,
Defendant/Counter-Appellant.
JANE P. WISEMAN, PRESIDING JUDGE:
¶1 Oklahoma Employment Security Commission (OESC) and Howard GM, Inc.
(Employer) appeal from the trial court's order reversing the decision of OESC,
the Appeal Tribunal, and the Board of Review finding that Jeffrey A. Broyles1 was ineligible
for unemployment benefits due to misconduct. Based on our review of the facts
and relevant law, we reverse the order of the trial court.
FACTS AND PROCEDURAL BACKGROUND
¶2 Broyles worked for Employer, which operates South Pointe Chevrolet and
South Pointe Chrysler-Jeep-Dodge, in Tulsa, Oklahoma, from October 2007 to March
2012. In January 2011, Broyles was promoted to one of three used car managers.
He testified that the general manager Chris Anderson knew he suffered from
multiple sclerosis and was made aware of his physical limitations. Broyles
claims that from the time he was promoted to used car manager, Derek Ellis,
general sales manager, and other employees "engaged in a pattern of
disability-based harassment against him" including a failure or refusal "to
accommodate the limitations of his disability." After Broyles was terminated on
March 10, 2012, for misconduct, he applied for unemployment benefits, which OESC
denied based on misconduct.
¶3 When Broyles appealed the denial of unemployment benefits to the OESC
Appeal Tribunal, the Appeal Tribunal conducted a telephone hearing regarding the
incident leading up to Broyles' termination on March 10, 2012. The testimony was
conflicting regarding what occurred on the day of the incident. Ellis testified
that a customer asked Broyles for help looking at a vehicle on the lot and the
following occurred:
And when he asked that, nobody kind of reacted. Then he said it again.
And [Broyles] looked up, and, in a put-out attitude with a big sigh, said,
yes. He put his food aside. And then was being negative to the customer.
The guy asked him, hey, if you, you know, I don't want to interrupt your
lunch. If I need to come back, I can. He said, no, I'll find somebody; don't
worry about it.
And so he ran around the office, got on the paging system, paged for a
sales person to come to the office in a negative tone. Now, this was
happening in a negative tone with a put-out attitude. I mean, he did not
want to help the customer.
Finally, a sales person came into the office from next door, and we gave
the customer to that sales person.
When he got done and he went to sit down, I told him to watch his
attitude with the customers and the sales people. And he mumbled some things
under his breath, which I didn't hear what he said, which didn't matter to
me at that point.
I told him again he needs to be respectful to the customers, and that's
the reason we were here. We are here to run a business.
And, at that point, he just got, you know, started being, what I call
insubordinate.
Said something under his breath again. I told him if he didn't want to be
here and he didn't want to change his attitude, then he could go home.
. . . .
He said, I'm tired of you being a total and complete fucking dick. And he
grabbed his stuff. And he said, gladly. And he grabbed his stuff and
left.
Ellis testified that when he arrived at work Monday morning, Broyles was
there working, so he met with general manager Chris Anderson to inform him of
the incident. Anderson advised Ellis to terminate Broyles' employment. Ellis
testified that this was the sole reason Broyles was fired.
¶4 Broyles testified as to his recollection of the incident:
I had just sat down to eat my lunch at my desk. And a customer walked
through the door and said he needed some help. And I pushed my plate aside
and said, absolutely, and stood up and tried to find a sales person for him,
but I couldn't find one.
So I came back into the office and paged an available sales person to the
sales desk. And no one came. And then that's when Mr. Ellis told me that he
was tired of me being such a dick to his customers.
I went back out of the office, still trying to find a sales person, but I
quickly returned back into the office. And I told Mr. Ellis that I was tired
of him being such a dick to me. And that's when he told me to go
home.
Broyles denied using the phrase "fucking dick" when referring to Ellis.
Broyles testified he did not believe he had been fired that day when Ellis sent
him home. Employer witnesses Chris Cox and Tim Markland, who were present during
the incident, also testified they only heard Broyles use the word "dick."
¶5 Broyles further testified it was common for Ellis to swear a lot when
talking to Broyles or the other managers and for that reason he didn't think
calling Ellis a "dick" would jeopardize his job. Broyles testified he witnessed
another employee calling Ellis the same or similar names and nothing happened to
that employee.
¶6 Testimony further revealed that swearing at work was common among the
employees. Ellis testified:
Mr. Novick: Is swearing among the workers at [GM] a common
occurrence?
Mr. Ellis: I suppose it happens now and then.
Mr. Novick: You use that word "fucking" a lot, don't you?
Mr. Ellis: I've probably used it a few times, yeah. So do a lot of
people, I guess. As did [Broyles], as well. He did--a very common
practice.
Employer witness Markland agreed that cursing at work is "normal" including
the use of words like "fuck" and "shit."
¶7 On May 21, 2012, the Appeal Tribunal issued its Order of Decision
affirming OESC's decision denying Broyles unemployment benefits. In its order,
the Appeal Tribunal stated Broyles had never been formally warned for similar
behavior before this incident. However, Broyles had been "involved in similar
altercations with the same member of management, during which he had not called
this member of management a curse word directly, before the final incident." The
Appeal Tribunal further stated that his "work environment was extremely
difficult to work in at times and cursing in speech of workers was a common
occurrence during [Broyles'] employment." The Appeal Tribunal further found:
[Broyles] was discharged for misconduct connected to work. [Broyles]
argued that personal illness and the related fatigue of this illness along
with a hostile work environment, in which cursing was the norm, was what
caused his behavior in the final incident. However, [Broyles] had confronted
this manager before while employed but never before cursed directly at him
indicating that he knew, as would be commonly known by all, that calling a
member of management a curse word to their face could result in immediate
termination. In addition, [Broyles] had shown the ability to control his
behavior in similar circumstances in the same environment while dealing with
the same illness and fatigue before the final incident. [Broyles'] choice to
allow himself to react in an extremely disrespectful manner towards
management, while having to be aware this could cost his job, demonstrates a
deliberate disregard of the standard of behavior that the employer has the
right to expect of its employees as required to find misconduct. In
addition, some behaviors, such as this and instances of theft, are so
extreme and detrimental to the employer's interests that they cannot be
allowed to continue after the first occurrence. Benefits are
disallowed.
Pursuant to 40 O.S. § 2-406,
the Appeal Tribunal disallowed benefits based on Broyles' misconduct and
affirmed the Commission's determination. Broyles appealed this decision to the
Board of Review.
¶8 On July 5, 2012, the Board of Review issued an order affirming the
decision of the Appeal Tribunal. Broyles then appealed to the Tulsa County
District Court.
¶9 After review of the record and relevant law, the trial court overruled the
decision of the Commission, the Appeal Tribunal and the Board of Review. Relying
on an Oklahoma Court of Civil Appeals' opinion, Vogle v. Oklahoma Employment
Security Commission, 1991 OK CIV
APP 84, 817 P.2d 268, the
trial court considered this case to be similar to the facts in Vogle
finding as follows:
In a similar case, Vogle v. Oklahoma Employment Sec. Com'n, 817 P.2d 268 (Okla. Civ. App.
1991), the employee had taken perfume samples without following protocol and
it was considered theft. She was denied benefits. However, the Court of
Civil Appeals found that the act of taking the samples was "common
practice." As in this case, cussing at each other was "common practice."
Also in Vogle, the claimant had never been formally reprimanded or
broken the rule before when she had taken samples. In our case, [Broyles]
was never formally reprimanded and had never cussed before at his boss.
The Vogle Court found that the "claimant may not have used good
judgment in the matter . . ." and "misconduct has been proven." However, the
Court found that the "misconduct was not detrimental to her employer's
interest." It was determined to be an instance of ordinary negligence giving
grounds for dismissal, but not a necessary denial of benefits.
[Broyles] did act inappropriately and misconduct is found to have been
proven. This Court cannot find that his choice of a cuss word, which is
frequently used by his boss, is anything but a negligent choice of words
that in no way is detrimental to the employer. Not one customer heard the
argument, but only other co-workers who also cuss and who were in on giving
[Broyles] a hard time at work. [Broyles] made a poor decision and should
have never spoken to his boss in that manner. However, a denial of benefits
is not appropriate under the law.
OESC and Employer appeal.
STANDARD OF REVIEW
¶10 On appeal, "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." 40 O.S.2011 § 2-610(A). "This
Court's standard of review on appeal is the same as that of the trial court."
Gilchrist v. Board of Review of the Oklahoma Emp't Sec. Comm'n, 2004 OK 47, ¶ 6, 94 P.3d 72. "Further, the question
of what constitutes 'misconduct' sufficient to deprive a terminated employee of
entitlement to unemployment benefits is a question of law." Id.
¶11 Furthermore, "[s]tatutory construction presents a question of law which
we review de novo." Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550.
PROCEDURAL ISSUE
¶12 As a procedural matter, Broyles filed a motion to dismiss Employer's
appeal arguing that it should "be dismissed on grounds of waiver and
abandonment, and that its Brief in Chief be stricken." Broyles asserts that
because Employer did not enter an appearance or file an answer in the action for
judicial review before the trial court, it has waived or abandoned its right to
appeal the trial court's decision. Broyles appears to be arguing that Employer
has no standing to appeal the trial court's decision because it did not
participate in the trial court proceedings. Broyles did not cite any legal
authority to support this argument. "A proposition which is unsupported by
citation to authority will not be considered on appeal." Hough v. Hough,
2004 OK 45, ¶ 16, 92 P.3d 695; see also
Oklahoma Supreme Court Rule 1.11(k)(1), 12 O.S.2011 ch. 15, app. 1 ("Argument
without supporting authority will not be considered.").
¶13 Despite this omission, we conclude Employer has standing to appeal the
trial court's decision. Title 40, section 2-610(C) states in part that "[a]n
appeal may be taken from the decision of the district court to the Supreme Court
of this state in the same manner as is provided in other civil cases." 40 O.S.2011 § 2-610(c). Oklahoma
Supreme Court Rule 1.27(a), 12 O.S.2011 ch. 15, app. 1, provides in relevant
part:
If a petition in error has been timely filed to commence an appeal from
an appealable decision, then a party aggrieved by the same decision
may file a petition in error within forty (40) days of the date the judgment
was filed with the district court clerk.
(Emphasis added.)
¶14 OESC filed a petition in error to commence an appeal of the trial court's
October 5, 2012, order. Soon thereafter, Employer as an "aggrieved party" timely
filed a petition in error pursuant to Supreme Court Rule 1.27(a). Employer
argues that it has been aggrieved by the trial court's order allowing
unemployment benefits because it "could be assessed wage charges which would
adversely affect its ongoing unemployment rate" pursuant to "40 O.S. 2001 § 3-107." OESC also
states that "[t]he Commission uses benefit wage charges as a factor in the
determination of unemployment tax rates for employer" and the trial court's
decision "would allow for a benefit wage charge to be assessed against
[Employer]." Employer may proceed with its appeal.
ANALYSIS
I. 75 O.S. § 321.
¶15 OESC argues the trial court erred by failing to allow oral argument and
briefing as permitted by 75 O.S. §
321. This provision states:
The review shall be conducted by the court without a jury and shall be
confined to the record, except that in cases of alleged irregularities in
procedure before the agency, not shown in the record, testimony thereon may
be taken in the court. The court, upon request, shall hear oral argument
and receive written briefs.
75 O.S.2011 § 321 (emphasis
added). OESC asserts that because Broyles requested a "briefing schedule and
[to] set a date for oral argument" in his Petition for Judicial Review and
because OESC reserved "the right to submit a brief in this matter pursuant to 75 O.S. § 321," the trial court was
statutorily required to receive written briefs and hear oral argument in the
matter.
¶16 In Walker v. Oklahoma Department of Human Services, 2001 OK CIV APP 107, 32 P.3d 881, a case relied on by
OESC, appellant complained the trial court failed to hear oral argument despite
her request set forth in the "Certificate of Appeal." Id. ¶¶ 6, 8. The
Court of Civil Appeals found as follows:
The prayer in Appellant's "Certificate of Appeal" in the district court
contained a request for a hearing, and we find it was a sufficient request
for oral argument. The district court erred in issuing its order determining
the appeal without oral argument.
We do not reach the merits of this appeal, as we hold Appellant was
entitled to oral argument before the district court. We do not decide
whether Appellant's allegations of improper admission of evidence are
meritorious. However, Appellant had a statutory right to present such
allegations, and the trial court shall decide at that time if further
testimony is warranted.
Id. ¶¶ 8, 10.
¶17 The language contained in § 321 plainly states that upon request, the
trial court shall allow the parties to submit written briefs and present oral
argument. "Courts will give the words of the statute their plain and ordinary
meaning, unless a contrary intention plainly appears." Redmond v.
Cauthen, 2009 OK CIV APP 46,
¶ 5, 211 P.3d 233. "When the
words of a statute are plain and unambiguous, no occasion exists to employ the
rules of construction." Id.
¶18 OESC never requested the right to submit a brief triggering the mandates
of the statute. OESC merely "reserved" its right to make such a request at a
later date. OESC filed its answer on August 31, 2012, and the trial court issued
its order on October 5, 2012. Although it had ample opportunity to request
submission of a brief for consideration by the court, OESC never made such a
request and cannot now be heard to complain that § 321 was not complied
with.
¶19 We further conclude that although Broyles requested a briefing schedule
and oral argument in his Petition for Judicial Review, he elected not to advance
this statutory right. If Broyles elected not to advance this right, OESC cannot
base its entitlement to briefing and oral argument upon Broyles' request in his
Petition for Judicial Review. We conclude the trial court did not violate the
mandates of 75 O.S.2011 § 321 as
it applies to submission of briefs and presentation of oral argument.
II. Misconduct
¶20 OESC and Employer both argue the trial court erred in reversing the Board
of Review's order denying unemployment benefits due to misconduct. Title 40 O.S.2011 § 2-406 states that an
employee "shall be disqualified for benefits if he has been discharged for
misconduct connected with his last work, if so found by the Commission."
Misconduct 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."
Vester v. Board of Review of Oklahoma Emp't Sec. Comm'n, 1985 OK 21, ¶ 12, 697 P.2d 533 (quoting Boynton Cab
Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)).
¶21 "Subsequent to Vester's establishment of a working definition of
misconduct, the Oklahoma Supreme Court has held that under this standard an
element of deliberate behavior must exist to establish misconduct
sufficient to deny unemployment compensation." Kakkanatt v. Oklahoma Emp't
Sec. Comm'n, 2008 OK CIV APP
38, ¶ 12, 183 P.3d 1032
(citing Farm Fresh Dairy, Inc. v. Blackburn, 1992 OK 148, ¶ 11, 841 P.2d 1150).
[T]he misconduct standard contemplates both the nature of the act
undertaken by the employee and the employee's state of mind at the time the
event(s) occurred. As has been succinctly stated by the Washington Court of
Appeals under a misconduct standard similar to our own: "(I)intentional
misconduct is disqualifying; a single instance of ordinary
work-related negligence is not disqualifying; and repeated instances
of ordinary work-related negligence may be disqualifying." (Emphasis
in Original.) Johnson v. Employment Security Department, 64
Wash.App., 311[,] 824 P.2d 505, 507 (1992), citing Macey v. Department of
Employment Security, 110 Wash.2d 308, 752 P.2d 377-378
(1988).
Id. ¶ 14.
¶22 On the other hand, "[c]onduct exempted from the foregoing definition is
'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 error in judgment or discretion.'" Vogle v.
Oklahoma Emp't Sec. Comm'n, 1991
OK CIV APP 84, ¶ 13, 817 P.2d
268 (quoting Vester v. Board of Review of Oklahoma Emp't Sec. Comm'n,
1985 OK 21, ¶ 12, 697 P.2d 533).
¶23 In the present case, the Board of Review's findings of fact, which it
adopted from the Appeal Tribunal, are supported by the evidence.2 Pursuant to 40 O.S.2011 § 2-610, these findings
shall be treated as conclusive. Thus, the trial court's only duty was to
determine if those facts supported the legal conclusion that Broyles had engaged
in the type of misconduct to deny him unemployment benefits.
¶24 In its order, the Appeal Tribunal found that Broyles "was terminated for
calling a member of management a 'dick' directly to his face." The Appeal
Tribunal found Broyles had never been "formally warned for similar behavior
before the final incident." Broyles had also had other "altercations with the
same member of management" before this incident but had never called him a
derogatory name. The Appeal Tribunal further recognized that the "work
environment was extremely difficult to work in at times and cursing in speech of
workers was a common occurrence" during Broyles' employment.
¶25 Based on these facts, the Appeal Tribunal concluded that Broyles' "choice
to allow himself to react in an extremely disrespectful manner towards
management, while having to be aware this could cost his job, demonstrates a
deliberate disregard of the standard of behavior that the employer has the right
to expect of its employees as required to find misconduct."
¶26 Because our research reveals no similar Oklahoma cases addressing whether
offensive language directed toward a supervisor constitutes misconduct so as to
deny unemployment benefits, we look to other jurisdictions having a similar
definition of misconduct.
¶27 In Michigan, the courts adopted the same definition of misconduct set
forth in Boynton Cab Co. v. Neubeck, 296 N.W. 636 (Wis. 1941), and when
applying this definition to the use of profane language stated as follows:
In looking at the use of vulgar or abusive language, we conclude that the
use of such language can constitute employee misconduct. Certainly such
conduct is wilful and deliberate since the employee can choose which words
to use and, we believe, it violates the standards of behavior that an
employer can reasonably expect from his employees. That is, we believe an
employer has the right to expect his employees to act with a certain amount
of civility towards management personnel and, for that matter, fellow
employees. Of course, every use of a vulgar epithet does not necessarily
constitute misconduct. Rather, the totality of the circumstances of the case
must be considered in determining if the use of vulgar or abusive language
constitutes misconduct. Thus, we must look to the words used and the context
in which the words are spoken in determining whether an employee has engaged
in misconduct. In looking at the totality of the circumstances, various
considerations should be taken into account. Whether the use of vulgar or
abusive language constitutes misconduct depends upon a variety of factors,
including considerations such as whether the words were directed at a fellow
employee, a supervisor, or a customer, whether the tone and context suggests
an abusive intent or friendly badgering, whether the comments were made in a
private conversation or in the presence of others, and whether such conduct
has been condoned in the past.
Broyles v. Aeroquip Corp., 438 N.W.2d 888, 890 (Mich. Ct. App.
1989).
¶28 In Iowa, the administrative code definition of misconduct is similar and
when applying this definition to the use of offensive language stated as
follows:
This court recognizes an employer's right to expect decency and civility
from its employees. . . . The use of profanity or offensive language in a
confrontational, disrespectful, or name-calling context, may be recognized
as misconduct, even in the case of isolated incidents or situations in which
the target of abusive name-calling is not present when the vulgar statements
are initially made. The question of whether the use of improper language in
the workplace is misconduct is nearly always a fact question. It must be
considered with other relevant factors, including the context in which it is
said, and the general work environment. Therefore, whether the event is
misconduct is most generally a decision for the
agency.
Myers v. Employment Appeal Bd., 462 N.W.2d 734, 738 (Iowa Ct. App.
1990).
¶29 In Minnesota, the courts have also adopted a similar definition of
misconduct. In Cavalier v. C. Machine Co., Inc., 404 N.W.2d 391 (Minn.
Ct. App. 1987), the appellate court found that an employee's series of actions
on a particular day amounted to misconduct disqualifying him from receiving
unemployment benefits. These actions included using a work computer to do
homework twice in one day without permission, lying about the use of the
computer, and the employee's refusal to "read and acknowledge the warning notice
which [his boss] attempted to hand him," instead stating to his manager, "F***
you. Stick it up your a**, Whiskey Breath." Id. at 392-94. The appellate
court held that "[w]hile, by itself, we might have characterized [employee's]
language as a single hotheaded incident, in fact that language was the last
incident in a series of conduct evidencing a disregard for the employer's
interests." Id. at 394. The appellate court concluded that the profane
language was the "last straw," rather than a "single hotheaded incident" and
affirmed the denial of benefits. Id.
¶30 Even though the definition of "misconduct" in Kansas is a more relaxed
standard than that used in Oklahoma, we may consider the same factors to
determine whether it meets Oklahoma's definition of misconduct. In Siler v.
Kansas Employment Security Board of Review, 77 P.3d 1002 (Kan. Ct. App.
2003), the Kansas Appeals Court considered the following to determine whether
the offensive language amounted to misconduct disqualifying the employee from
unemployment benefits:
(i) severity of the language used; (ii) quantity of the language used;
(iii) whether the language was spoken in the presence of customers, clients,
or other employees; (iv) whether the employee has a record of such
misconduct; (v) whether prior warnings were given; (vi) whether the language
was provoked by the employer; (vii) whether the language was accompanied by
threat of violence; and (viii) whether the language was accompanied by
material and substantial disobedience.
Id. at 1006.
¶31 Clearly, the issue of whether the use of offensive language in the
workplace constitutes misconduct for purposes of allowing or disallowing
unemployment compensation benefits has been litigated extensively in other
jurisdictions, and these cases provide helpful analyses. In most cases, the
surrounding circumstances determine whether the employee's offensive language
constitutes disqualifying misconduct. This requires the consideration of several
factors including, but not limited to, those identified in the above cases.
¶32 The undisputed facts demonstrate that Broyles had never been formally
warned for similar behavior in the past and had never cursed directly at his
supervisor before this incident. Additionally, cursing was common in the
workplace during his employment. However, when Broyles cursed at his supervisor
during the incident at issue, he was overheard by two employees, and the
language used was not in the context of "friendly badgering" but was used in a
confrontational and disrespectful manner.
¶33 The Board of Review could reasonably determine that Broyles' conduct was
a deliberate disregard of the standards of behavior Employer has a right to
expect from its employees because an employer has a right to expect employees
will not be disrespectful and use profanity directed toward a supervisor.
Broyles' conduct can reasonably be considered to be deliberate because he chose
the words to use when confronting his supervisor. We therefore cannot conclude,
as did the trial court, that Broyles' conduct is merely "a negligent choice of
words that in no way is detrimental to the employer." For this reason, we
conclude it was error to reverse the Board of Review's decision. Accordingly, we
must reverse the trial court's order and reinstate the Board of Review's
decision.
CONCLUSION
¶34 The order of the trial court reversing the Board of Review's decision is
reversed, and the Board of Review's decision is reinstated.
BARNES, C.J. and GOODMAN, J., concur.
