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

Citation2022 OK CIV APP 40
Decision Date04 November 2022
Docket Number119727
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2022 OK CIV APP 40

MATTHEW GRINN, Plaintiff/Appellant,


and R.B. STEWART PETROLEUM PRODUCTS, INC., Nominal Party/Appellee

No. 119727

Court of Appeals of Oklahoma, Division II

November 4, 2022

Mandate Issued: 11/30/2022


Leah M. Roper, THE CENTER FOR EMPLOYMENT LAW, Oklahoma City, Oklahoma and Katherine M. Bushnell, Nicoma Park, Oklahoma, for Plaintiff/Appellant


¶1 Matthew Grinn appeals a decision of the district court affirming a ruling of the Oklahoma Employment Security Commission Board of Review (OESC or the commission) denying him unemployment benefits on the grounds that he was discharged for "misconduct" pursuant to 40 O.S.Supp.2014, § 2-406. On review, we find that the decision of the commission that Grinn committed statutory misconduct did not correctly interpret and apply the statute. We therefore reverse the denial of benefits and remand with instructions to reinstate Grinn's unemployment benefits.


¶2 Grinn was employed by R.B. Stewart Petroleum Products, Inc. [1] and was training to be a fuel tanker driver. Grinn was driving under the supervision of trainer Ron Welch at the time of the incident cited as grounds for his discharge. The record indicates 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. [2] Supervisor Samuel Pogue testified at hearing that there was "no issue with Grinn's driving during the incident."

¶3 For reasons that are ultimately unclear from the substantial record below, 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 hip in the motion of 'yes!'" Welch was unhappy with this behavior and chided Grinn that there was "nothing funny" about a "harsh incident." Grinn allegedly replied that his reaction was "just sarcasm" or "humor." [3] He later testified that he thought it a "normal reaction to a stressful situation" or that he made the motion only because his trainer was in the cab and had reminded him he was on camera.

¶4 Welch related the incident to supervisor Pogue some twenty minutes later, who reviewed a cab video of the allegedly offending "fist pump." After consultation, Pogue decided to dismiss Grinn. Grinn was told at the time of his dismissal that he had been dismissed for "failure to make progress in training." Grinn applied for, and initially received, unemployment benefits. The award specifically stated that "no evidence of misconduct has been shown."

¶5 R.B. Stewart [4] appealed this decision 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." [5] However, R.B. Stewart's witness testified emphatically at the hearing that, but for the fist pump, Grinn would not have been dismissed.

¶6 R.B. Stewart submitted three passages from its policy manuals to the appellate tribunal detailing the policies it alleged Grinn had violated, and thereby, committed misconduct pursuant to § 2-406. Because these passages are the basis of R.B. Stewart's case, we will reproduce them in full. The first specifically relates to driving safety:

While there are no regulatory requirements that mandate the existence of a defensive driving policy, R. B. Stewart wants to make sure we have the safest drivers on the road Underlying the policy is our corporation's strong commitment to safety on the highways. Our goal is to keep our drivers and the motoring public safe
While operating company vehicles, drivers should always drive in a safe and professional manner. The likelihood of accidents will be minimized and a positive image for the company will be promoted in the eyes of the general public, specifically, our drivers must operate company vehicles in accordance with all Provisions of Part 392 -- Driving of Motor Vehicles of the Federal Motor Carrier Safety Regulations....

R. 20 (internal section numbers omitted). The second was a more general "safety and integrity" policy statement:

We care about your safety and the safety of all who use our nation's roads. Transportation is an integral part of the successful operational model at R. B. Stewart. We rely on the safe operation of vehicles to deliver products and services to our customers. R.B. Stewart is bound by high ethical standards of honesty and integrity when dealing with the public, employees and customers. We expect honesty and integrity from our employees in all their daily activities.

R. 21. Finally, R.B. Stewart cited its policy on "professionalism."

R. B. Stewart has high expectations of its employees and their performance, particularly when it comes to customer service. Employees must be courteous and respectful when interacting with customers, vendors, and other members of the public while in the course and scope of Company business. Employees should immediately report all witnessed behavior violating this policy to employee's manager.
The Company has the same high expectations with regard to teamwork. Employees are expected to work in a cooperative manner with managers, co-workers, customers and vendors. This policy does not mean that employees cannot disagree with each other or that employees cannot raise issues of concern related to the terms and conditions of their employment. It does, however, mean that employees are expected to work together to complete assigned work efficiently and effectively.
R. B. Stewart cannot anticipate every possible type of activity that would violate its policies and expectations, but there are some general categories of conduct or behavior that employees can anticipate will result in discipline. For example, insubordination, such as refusing to perform assigned work or tasks, will result in discipline. Employees who physically threaten, intimidate or assault a manager, co-worker, customer or vendor are also subject to immediate discipline.
R. B. Stewart expects its employees to be truthful and accurate when reporting business information. Misleading, misrepresenting, omitting, or not telling the whole truth for Company purposes, including falsifying any Company record such as sales records or hours of work, is prohibited.
This policy of professionalism means that while working, employees will be performing Company duties for which they are being paid. Employees may not engage in personal or leisure activities such as reading magazines, books or newspapers, promoting personal business, or sleeping. If an employee has completed all of employee's assigned duties, it is the employee's responsibility to inform the supervisor or manager to seek additional work.

R. 23.

¶7 The appellate tribunal held a telephone hearing at which Grinn appeared pro se and R.B. Stewart appeared through counsel . Grinn and supervisor Pouge testified. The tribunal reversed the initial determination of eligibility and held that Grinn was ineligible for unemployment benefits because "the claimant['s] reaction indicated an indifference to his job duties and breached the claimant's obligation to the employer. Misconduct had been shown and benefits are denied...." [6] The matter then went to the board of review, which affirmed without further comment. Grinn appealed to the district court, which found the decision "supported by competent evidence" and "not contrary to law." Grinn appeals.


¶8 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 "standard of review on appeal is the same as that of the trial court." Gilchrist v. Board of...

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