Broyles v. Okla. Emp't Sec. Comm'n

Decision Date06 May 2014
Docket NumberNo. 111197.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.,111197.
Citation333 P.3d 266
PartiesJeffrey A. BROYLES, Plaintiff/Appellee, v. OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Defendant/Appellant, and Howard GM, Inc., Defendant/Counter–Appellant.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma


Appeal from the District Court of Tulsa County, Oklahoma; Honorable Dana L. Kuehn, Trial Judge.


Steven A. Novick, Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellee.

Michael P. Royal, Fisher & Phillips LLP, Dallas, Texas, for Defendant/Counter–Appellant Howard GM, Inc. and Robert C. Newark, III, Oklahoma Employment Security Commission, Oklahoma City, Oklahoma, for Defendant/Appellant Oklahoma Employment Security Commission.

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. Broyles 1 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.


¶ 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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT