Opinion:Grinn v. Oklahoma Employment Security Commission, 2022 OK CIV APP 40
Subject Matter:Employment Law
Date Decided:November 4, 2022
Trial Court:District Court of Oklahoma County; Judge Bonner
Route to this Court:Grinn appealed a decision from the district court affirming a ruling of the Oklahoma Employment Security Commission Board of Review denying him unemployment benefits on the grounds that he was discharged for “misconduct” pursuant to 40 O.S.Supp. 2014, § 2-406.
Facts:Grinn was employed by R.B. Petroleum Products, Inc. and was training to be a fuel tanker driver. The record indicated that a dangerous road situation developed and Grinn successfully avoided this danger by maneuvering the truck in a manner that was extreme enough to trigger a “harsh event” warning message in the cab. Supervisor testified that there was no issue with Grinn’s driving.

Having avoided the danger, Grinn then “stuck his right hand up in the air and made a fist and basically drew it back towards his right hip in the motion of ‘yes!’” Welch, Grinn’s trainer, was unhappy with this behavior and chided Grinn. He later testified that he thought it was a “normal reaction to a stressful situation.” Welch related the incident back to Supervisor Pogue twenty minutes later, and after consultation Pogue decided to terminate Grinn’s employment. He was told he was being dismissed for “failure to make progress in training.” Grinn first received unemployment benefits from the OESC, but R.B. Stweart appealed to the OESC appellate tribunal. Its cover letter to the appeal agreed that Grinn was dismissed for “failing to progress in training at an acceptable pace,” but characterized this failure to progress as “misconduct” because it violated the company’s “professionalism policy.” R.B. Stewart’s representatives later testified that Grinn was discharged for violating a company policy requiring employees to demonstrate “professionalism” and “take safety training seriously.”

The appellate tribunal reversed the initial determination of eligibility and held that Grinn was ineligible for unemployment benefits because Grinn’s reaction displayed “an indifference to his job duties and breached the claimant’s obligation to the employer. Misconduct has been shown and benefits are denied . . .”
Standard of Review: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. § 2–610(A) (West 2022). The material facts here were undisputed and “misconduct” was statutorily defined. Hence, “the question of what constitutes ‘misconduct’ sufficient to deprive a terminated employee of entitlement to unemployment benefits is a question of law.” Id. Marchant v. Heartland Parts & Servs., Inc., 2015 OK CIV APP 38, ¶ 5.
Analysis:The Court determined that the precise question that was before it was whether Grinn was correctly barred from receiving statutorily-provided-for unemployment benefits after his termination. Section 2-406 holds that an employee discharged for misconduct at work be disqualified from benefits. In 2014, the legislature clarified and limited the acts that constitute statutory “misconduct.” 40 O.S.Supp.2014 § 2-406(B). R.B. Stewart alleged that Grinn should have known that what he did would constitute misconduct. Gestures such as the fist pump at issue were not addressed by the statute or the policies that R.B. Stewart cited.

Thus, the Court reviewed the text of Section 2-406(C) as encompassing three categories of “knowledge” that render an employee’s violation of a work rule or policy statutory misconduct sufficient to deny benefits. The first is that of clear “wrongdoing.” This consists of workplace acts that are so clearly unacceptable that any employee of ordinary cognizance should understand them to constitute misconduct, irrespective of whether they appear in a policy manual or whether the employee has been specifically cautioned not to perform them. The second is knowledge that certain acts constitute misconduct even if not inherently wrongful because an employer has chosen to prohibit them as part of employment expectations and workplace policies. The employee has, or should have, knowledge of these requirements if the employer at least informs the employee that there are mandatory rules and makes them reasonably available to the employee. The uncertainty here lies in the third category of misconduct under § 2-406(C) where the act is neither so transgressive that it obviously constitutes misconduct, nor facially prohibited by any available rule or policy statement. Based on this, the Court disagreed with R.B Stewart’s argument that Grinn should have known that his fist pump violated the broad professionalism policy and showed indifference to his job duties.

The Court emphasized that the record failed to show that Grinn had no actual or constructive knowledge that the behavior caused his firing and that the fist pump violated an employer rule that constituted statutory misconduct. R.B. Stewart’s reading of misconduct was too broad.
Outcome:Reversed and Remanded.
Vote:3-0. Wiseman, P.J., Fischer, C.J. (sitting by designation, and Blackwell, J. (author) concur.
Other:Although Grinn had a right to receive employment benefits, the Court made it clear that R.B. Stewart had the right to terminate Grinn’s employment under the circumstances. Employment-at-will contracts can be terminated for any of the reasons highlighted in the case, only that the behavior itself could not constitute statutory misconduct based on a broad company policy of professionalism.