EHLINGER v. CITY OF BIXBY

EHLINGER v. CITY OF BIXBY
1997 OK CIV APP 20
939 P.2d 34
68 OBJ 1475
Case Number: 87556
Decided: 04/17/1997
Mandate Issued: 04/17/1997

Judy M. Ehlinger, Appellant
v.
City of Bixby/Oklahoma Employment Security Commission, Appellee.

AFFIRMED

Oklahoma County - James B. Blevins

Patricia E. Neel, Karen Carden Walsh, Tulsa, Oklahoma, For Plaintiff/Appellant
Cara S. Nicklas, Oklahoma City, Oklahoma, For Defendants/Appellees

MEMORANDUM OPINION

JONES, J.

¶1 In this unemployment compensation case, Plaintiff/Appellant Ehlinger contends that denial of her claim for compensation should have been set aside because (1) her former employer City of Bixby failed to disclose that she was not terminated for lack of work, (2) the city manager said she was terminated for lack of work, and (3) City made material misrepresentations of fact during the telephone hearing conducted by the Oklahoma Employment Security Commission Appeal Tribunal.

¶2 Ehlinger worked as city treasurer and finance director for the City from January 23, 1990 until February 13, 1992. On the latter date she tendered her resignation, effective April 15, 1992. The city manager responded by memorandum telling her that her resignation would be effective immediately. Ehlinger then applied for unemployment compensation. On her application, in the section "Reason for Separation," Ehlinger checked the box for "Quit."

"The claimant was employed as City Treasurer from January 23, 1990 to February 13, 1992. She resigned voluntarily.

¶4  New City Council members were elected in April, 1991. The claimant asserts these persons wished her terminated due to the claimant's support of a measure the council members opposed. A new City Manager was hired in August, 1991. The claimant asserts that person was instructed to fire her.

¶5 The claimant bases this assertion on a statement made by a previous acting City Manager. That person told the claimant he had been told to fire her. The claimant assumed the new City Manager would have been told the same thing.

¶6 The claimant received two reprimands from the new Manager. The first of these occurred in October, 1991. The claimant was reprimanded for permitting an employee to work overtime without authorization. The claimant did do this, but had believed the Manager had given such authorization. The second reprimand occurred in December, 1991 and concerned the claimant's failure to inform the City Manager that she was leaving on a vacation. The claimant had received authorization for the vacation in July from a previous manager, but did fail to tell the current manager of this.

¶7 The claimant contends these reprimands showed the employer's intent to terminate her and caused her excessive stress. The claimant had also provided information to a Grand Jury and to the District Attorney which resulted in certain council members pleading guilty to violations of the Open Meetings Act. The claimant contends this also motivated the employer's actions. The employer denies that an effort was under way to terminate the claimant.

¶8 Section 2-404 of the Act provides a disqualification if it is found that a claimant left work voluntarily without good cause connected to employment. In determining the existence of good cause, there shall be considered, among other factors, the degree of risk involved to the claimant's health, safety or morals, or changes in the contract of hire that affect working conditions, hours or wages.

¶9 The claimant's assertions are based largely on hearsay and innuendo. No information has been presented to support the allegation that the City Manager had been told to fire the claimant. The reprimands received by the claimant were, in fact, correct by the claimant's own testimony. . . . The claimant has not shown the working conditions were rendered untenable due to any action by the employer. The claimant quit without good cause connected to the work."

¶11 Even before the Appeal Tribunal conducted its hearing, Ehlinger had commenced an action in federal court against the City and the city manager, later amended to name the three council members. On cross-motions for summary adjudication, the federal court held that, because the city manager had changed the effective date of her discharge from that stated in Ehlinger's letter of resignation, which she could have withdrawn, she had been discharged.

¶15 The erroneous reason for separation shown on the Commission's notice to the City is not a mistake of material fact or failure to disclose. When the City received that notice, it responded by asking for denial of Ehlinger's application because she had resigned.

¶16 Ehlinger asserted that there were five false representations by the City during the telephone hearing conducted by the Appeal Tribunal. She did not attach any additional evidentiary materials to her petition for reconsideration to show that those statements were false when made. She said that the City had falsely represented to the Appeal Tribunal (1) that Ehlinger had an outside auditing firm come to the City and perform her work, which caused the City to incur higher costs for its "audit bill" than should have been charged; (2) that Ehlinger had a friend "slide the . . . bills right on by" so no one else would know she had the auditing firm do her work; (3) that no one in the office knew why she was absent, when she was on vacation and had obtained prior approval of her vacation leave; (4) that the previous city manager (whom, she says, was fired for refusing to fire her), was not really fired but was only a temporary city manager; and (5) that the subsequent city manager had discussed with Ehlinger the use of "comptime" before she was fired.

¶19 AFFIRMED.

Footnotes:

1 The administrative record from the Commission is found at pp. 27-208 of the trial court record. Hereafter, reference to the former will be made by citation to "Admin. Rec.," with a parallel citation to the trial court record, shown here as "Rec."

2 Admin. Rec., p. 161; Rec., p. 192.

3 Admin. Rec., p. 162; Rec., p. 193.

4 Admin. Rec., p. 9; Rec., p. 40.

5 Admin. Rec., pp. 126-27; Rec., pp. 157-58.

6 Admin. Rec., pp. 158-59; Rec., pp. 189-90.

7 Ehlinger v. City of Bixby, No 92-C-300 (N.D. Okla., Order dated April 5, 1993); Admin. Rec., pp. 163-72; Rec., pp 194-203.

8 Although 40 O.S. 2-506 refers specifically only to 40 O.S. 5-102 of the Act, which makes such false statements by a claimant a misdemeanor, we consider here that the Act's proscription of false statements and failures to disclose also criminalizes such conduct if committed by an employer. 40 O.S. 5-103 . 1991

9 Admin.Rec., p. 157; Rec., p. 188.

10 Admin.Rec., p. 176, Rec., p. 207.

11 Rec., p. 239.

12 In the body of its response letter, the City stated, "The City must ask that benefits be denied on the grounds that Ms. Ehlinger resigned her position as City Treasurer. The notice we have received states the reason for termination on 2-13-92 as a result of Lack of Work." Admin.Rec., p. 162; Rec., p. 203.

13 Admin.Rec., pp. 158-59; Rec., pp. 189-90.