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R & R ENGINEERING CO., INC. v. BOARD OF REVIEW OESC2014 OK CIV APP 26322 P.3d 471Case Number: 110355Decided: 02/14/2014Mandate Issued: 03/14/2014DIVISION IIITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IIICite as: 2014 OK CIV APP 26, 322 P.3d 471
R & R ENGINEERING CO., INC., 
Plaintiff/Appellant,v.BOARD OF REVIEW OESC, OKLAHOMA EMPLOYMENT SECURITY 
COMMISSION, Defendant/Appellee,andDAVID A. BOOTH, Defendant.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA
HONORABLE LINDA MORRISSEY, JUDGE

REVERSED AND REMANDED

James R. Hicks, MORREL SAFFA CRAIGE, P.C., Tulsa, Oklahoma, for 
Plaintiff/Appellant,Teresa Thomas Keller, Robert C. Newark, III, Oklahoma 
City, Oklahoma, for Defendant/Appellee.


ROBERT D. BELL, PRESIDING JUDGE:
¶1 Plaintiff/Appellant, R & R Engineering Co., Inc. (Employer), appeals 
from the district court's order affirming the opinion of Defendant/Appellee, The 
Board of Review (Board) of the Oklahoma Employment Security Commission 
(Commission). The Board's opinion determined Employer is not an interested party 
to the unemployment claim of Defendant, David Booth (Claimant). On appeal, 
Employer asserts the district court erred in law and fact in affirming the 
Board's opinion because Claimant voluntarily resigned from employment after 
violating Employer's drug use policy. We hold the district court erred in 
affirming the Board's opinion and reverse and remand this matter to the 
Commission for further proceedings consistent with this opinion.
¶2 Claimant was employed by Employer from January 6, 1997, until his 
resignation October 30, 2009. When he was employed, Claimant signed a 
conditional job offer which advised he would be subject to drug screening as 
determined necessary by Employer. Claimant also signed a work rules document 
which advised his employment could be terminated for the illegal use of drugs on 
Employer's property. Employer adopted a "Drug & Alcohol Testing Policy" on 
November 1, 2007, pursuant to 40 O.S. 
2001 §551, et seq., Standards for Workplace Drug and Alcohol Testing 
Act. On October 8, 2009, Employer administered a drug test to Claimant at its 
facility in Tulsa. Claimant tested positive for methamphetamine and four other 
drugs. Employer informed Claimant that he could voluntarily resign or be 
terminated. Claimant elected to resign his employment and signed a letter of 
resignation on October 30, 2009.
¶3 Claimant applied for unemployment benefits sometime in December 2009. A 
notice of application for unemployment compensation was sent to Employer. The 
notice advised Employer it may file written objections to the claim and stated: 
"[i]f this individual voluntarily quit work or was fired for misconduct, your 
reply must include full details." (Emphasis in original.) The 
notice further stated: "Failure to provide full details may prevent you, the 
employer, from being an interested party to the claim." (Emphasis in 
original.)
¶4 After receiving the notice, Employer timely sent a letter protest to the 
Commission stating:


On October 30, 2009, David was given the option to resign from the 
    Company or be fired for breaking a serious work rule. David asked for a 
    letter to be drawn up stating that he resigned and signed it the same 
    day.
On December 21, 2009, the Commission sent Employer a form entitled: "Employer 
Statement for Discharge/Drug Test - rc1542." This form requested Employer to 
remit more information about the separation, within two (2) days, by December 
23, 2009. Employer submitted the additional information on December 29, 2009, 
along with a cover letter apologizing for the late submission. Employer 
explained most responses are allowed ten (10) days, not just two (2) days. 
Employer's response informed the Commission that Claimant requested to resign as 
a result of the positive drug test which was attached to the remittance.
¶5 Thereafter, the Commission issued a Notice of Determination which 
acknowledged the receipt of Employer's letter protest, but found the letter 
protest did not contain specific facts regarding the separation as required by 
40 O.S. Supp. 2008 §2-503(E) of 
the Employment Security Act of 1980 (the Act), 40 O.S. 2001 §1-108, et seq. 
Section 2-503(E)(2) provided the employer must set forth the facts which 
"[d]isqualify the claimant from benefits under Sections 2-401 through 2-418 of 
this title." Based on that finding, the Commission determined Employer would not 
be considered an interested party to the claim.
¶6 Employer requested an appeal on the basis that Claimant was disqualified 
from receiving benefits under 40 O.S. 
Supp. 2008 §2-404 because he voluntarily left employment. Section 2-404(A) 
provided: "An individual shall be disqualified for benefits for leaving his or 
her last work voluntarily without good cause connected to the work, if so found 
by the Commission." After a telephone hearing, the hearing officer of the appeal 
tribunal issued an Order of Decision which found:


The claimant was effectively discharged. He was given the choice of being 
    fired or resigning. He elected to resign. However, he was being discharged. 
    The employer's protest did not state why he was being discharged or why he 
    was given the choice of resigning in lieu of discharge. It did not contain 
    adequate facts showing why the claimant should be 
discharged.
The appeal tribunal affirmed the Commission's determination and held Employer 
"is not to be deemed an interested party in connection with the subject 
claim."
¶7 Employer filed an appeal to the Board of Review. Employer contended it 
complied with §2-503 because it demonstrated Claimant voluntarily left work and 
Claimant did not demonstrate "good cause" to voluntarily leave work under 
§2-405.1 The 
Board of Review issued an opinion which affirmed the appeal tribunal hearing 
officer's determination that Employer's protest did not contain specific 
information; therefore, Employer cannot be considered an interested party to the 
claim. Employer petitioned for review before the district court. The district 
court affirmed the Board's opinion. Employer now appeals the district court's 
order to this Court.
¶8 "[T]he district court sits as an appeal tribunal and its jurisdiction is 
limited to the consideration of the transcript and the argument of the 
respective attorneys thereon." Vester v. Board of Review of Okla. Employment 
Sec. Comm'n, 1985 OK 21, ¶10, 
697 P.2d 533. "[T]he district 
court is limited to determinations whether an error of law was committed in the 
hearing and whether or not the findings are supported by the evidence 
introduced." Id.
¶9 On appeal, Employer contends the Board's determination that it was not an 
"interested party" was erroneous as a matter of law. Employer argues it provided 
sufficient facts to apprise the Commission of the basis of Employer's protest 
under §2-503. Employer specifically submits its evidence clearly established 
Claimant resigned without good cause and his voluntary resignation disqualified 
him from receiving benefits pursuant to §2-404.
¶10 Commission counters if an employee is given the option of resigning or 
being terminated, the employee's action is not a voluntary resignation, but is 
instead, a constructive discharge. Commission also contends Employer was warned 
that failure to provide full details concerning the job separation could prevent 
it from being an interested party to the claim and that the scant information 
provided by Employer was inadequate to determine whether Claimant was entitled 
to unemployment benefits.
¶11 The primary issue is whether Employer's protest complied with the 
evidentiary requirements set forth in the Commission's notice and whether 
Employer qualified as an "interested party." Under Oklahoma Administrative Code 
(OAC) 240:10-1-2(A) of the Rules of the Oklahoma Employment Security Commission 
(2013), an "Interested Party" is defined as:


In an unemployment claim appeal - the Commission, a claimant who files a 
    claim for unemployment benefits with the Commission, and any employer who 
    properly files a written objection to the claim pursuant to 40 O.S. 
§2-503(E).
The rules and regulations enacted by administrative agencies pursuant to the 
powers delegated to them have the force and effect of law and are presumed to be 
reasonable and valid. Kifer v. Oklahoma Tax Comm'n, 1998 OK CIV APP 34, ¶10, 956 P.2d 162.
¶12 The question is whether Employer properly filed a written objection 
pursuant to §2-503(E). Strict compliance with the statute's procedural 
requirements for filing administrative appeals is mandatory. Oklahoma Found. 
for Med. Quality v. Dep't of Cent. Servs., 2008 OK CIV APP 30, ¶13, 180 P.3d 1. However, the 
dispositive issue here does not involve the timely commencement of a protest or 
review in an administrative proceeding; instead, it concerns the "sufficiency" 
and "specificity" of Employer's written objection to Claimant's unemployment 
compensation claim and whether such protest qualified Employer as an "interested 
party."
¶13 After reviewing the Commission's rules and the statute, this Court does 
not find the governing statute requires verbosity and exactitude as submitted by 
Commission. Instead, the purpose of the "specificity" requirement is to enable 
the Commission to determine which exclusion is applicable. Even OAC 
240:10-3-23(e)(2) and (3)2 require the Commission's representative to accept 
written and verbal statements from the employer and to take any action to 
determine the facts and rights of the employer and claimant.
¶14 Based on the foregoing analysis, this Court holds substantial compliance 
with the specificity requirement of §2-503(E) is sufficient. Substantial 
compliance with a statute is demonstrated if it is made to appear the statute's 
purpose is shown to be served. Kasner v. Stanmire, 155 P.2d 230. The 
record demonstrates Employer persistently protested Claimant's claim and 
pursued all avenues for administrative review. While Employer's protest was not 
technically laced with artfully intricate detail, Employer's initial protest and 
its response to the Employer Statement for Discharge/Drug Test-rc1542 
substantially complied with the statute's specificity requirement. Employer 
specified Claimant was given a choice of being fired or resigning due to his 
positive drug test. There was no conjecture or speculation as to the reasons why 
Employer offered resignation. We recognize Employer's response to the Statement 
for Discharge, which was due in only two days, was submitted eight days late. 
However, no prejudice would have resulted if the Commission had accepted 
Employer's response as timely and sufficient to qualify Employer as an 
"interested party." Based on these facts, Employer's protest substantially 
complied with the statute's specificity requirement and therefore Employer was 
an interested party in the protest.
¶15 The Board's conclusion that Employer is not an interested party is 
unsupported by the law and facts. Accordingly, the district court erred in 
affirming the Board's opinion. The district court's order is therefore reversed 
and this matter is remanded to the Commission for further proceedings. Because 
this Court reverses and remands this matter, it is unnecessary to address 
whether the district court erred as a matter of both law and fact in affirming 
the Commission's award of benefits. Employer will have ample opportunity, on 
remand, to present evidence in support of its protest that Claimant voluntarily 
resigned from employment without good cause connected to the work, and thus, is 
disqualified for unemployment benefits under §2-404.

¶16 REVERSED AND REMANDED.

MITCHELL, J., and GOREE, J., concur.

FOOTNOTES

1 The 
relevant portion of 40 O.S. Supp. 
2006 §2-405 stated:
Good cause for voluntarily leaving work under Section 2-404 of this title may 
include, among other factors, the following:
1. A job working condition that had changed to such a degree it was so 
harmful, detrimental, or adverse to the individual's health, safety, or morals, 
that leaving the work was justified.

2 OAC 
240:10-3-23(e) entitled "Determination of eligibility for benefits" states:
(1) A Commission representative shall determine claimant's eligibility for 
benefits.(2) A Commission representative shall accept written and verbal 
statements from the claimant and the employer.(3) A Commission 
representative shall take any action necessary to determine the facts and to 
determine the rights of both the employer and claimant.(4) A Commission 
representative shall write a determination which must include the following:
(A) An explanation of the parties' appeal rights;(B) A summary of 
pertinent facts;(C) The reasons for allowing or denying benefits; and(D) 
The conclusion or legal results of the decision.
(5) Any interested party may appeal a determination. The appeal shall be 
filed with the Commission. When the appeal is filed, all interested parties 
shall be notified.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2008 OK CIV APP 30, 180 P.3d 1, OKLAHOMA FOUNDATION FOR MEDICAL QUALITY v. DEPARTMENT OF CENTRAL SERVICESDiscussed 1998 OK CIV APP 34, 956 P.2d 162, 69 OBJ        1327, KIFER v. OKLAHOMA TAX COMMISSIONDiscussedOklahoma Supreme Court Cases CiteNameLevel 1985 OK 21, 697 P.2d 533, Vester v. Board of Review of Oklahoma Employment Sec. Com'nDiscussedTitle 40. Labor CiteNameLevel 40 O.S. 1-108, Indian Tribes or Tribal Units - Benefits - Contributions or Payments - Extended Benefits - Delinquencies - No Waiver of Sovereign ImmunityCited 40 O.S. 2-404, Leaving Work VoluntarilyCited 40 O.S. 2-405, Determining Good CauseCited 40 O.S. 2-503, Claims, Notices and ObjectionsDiscussed 40 O.S. 551, Short TitleCited










