using CNIDR Isearch-cgi 1.20.06 (File: m0016427)
Appellant: Mary Anita Burkhardt
Appellee: State of Oklahoma ex rel. Department of Rehabilitation Services and the Merit Protection Commission
Jurisdiction: Court of Appeals of Oklahoma, Division No. 2
Hearing_Date: July 18, 2003
( Colbert )
( Oklahoma County - Karl R. Gray )
James M. Erikson Oklahoma City, Oklahoma For Plaintiff/Appellant
Honorable Drew Edmondson ATTORNEY GENERAL Debra Schwartz ASSISTANT ATTORNEY GENERAL Oklahoma City, Oklahoma For Defendant/Appellee
Mary Anita Burkhardt appeals an order of the trial court affirming two final orders of the Merit Protection Commission (MPC). The issue on appeal in this action for retaliation is whether the trial court erred in affirming MPC's orders. We find no error and affirm the trial court's order.
FACTS AND PROCEDURAL HISTORY
Burkhardt began working as a secretary with the Department of Rehabilitation Services (DRS), Division of Visual Services, on October 21, 1996. Sometime between that date and April 1, 1998, Burkhardt began having conflicts with her supervisors, Lisa Gameson, Cynthia Crawford, and Syedah Islam, over various issues relating to office procedures and personality. On August 17, 1998, Gameson, Crawford, and Islam gave Burkhardt a negative performance evaluation for the period of July 1, 1997, through June 30, 1998.
On September 14, 1998, Burkhardt filed an internal grievance protesting the evaluation and alleging violations of several Merit Rules by her supervisors. Burkhardt also alleged that she had been denied access to her personnel file and that her supervisors had given her the negative evaluation in retaliation for her having reported a double order made by Crawford for one of her clients. She stated that she discovered the double order on January 23, 1998.
Raymond Hopkins, Administrator of the Division of Visual Services, met with Burkhardt on October 14, 1998, to discuss her grievance. On October 28, 1998, Hopkins wrote Burkhardt a memorandum explaining that the performance evaluation had been properly conducted; the evaluation was not retaliatory because Burkhardt had not filed a grievance prior to the time the evaluation was completed;1 and she had been denied access to unofficial records kept in the district supervisor's office, not her official personnel file. Hopkins stated that he would direct those in control of Burkhardt's unofficial records to allow her to access them.
On November 23, 1998, Burkhardt appealed Hopkins' decision to MPC. James L. Howard, Executive Director of MPC, dismissed the appeal. Howard reasoned that Burkhardt had not provided evidence that any of her rights had been violated nor had she provided evidence of a causal connection between her report of unethical behavior by Crawford and Hopkins' grievance decision.
Burkhardt filed a petition for reconsideration, which Howard denied on February 1, 1999. On March 1, 1999, Burkhardt filed a petition for judicial review pursuant to the Administrative Procedures Act (APA), 75 O.S. 250 - 75 O.S. 323 (2001-2002). Appeal no. 98,112.
On March 17, 1999, Syedah Islam drafted a memorandum, apparently to Linda Parker, Director of DRS, informing Parker of a conversation she had with Burkhardt concerning several written complaints by Burkhardt's co-workers that Burkhardt had made disparaging remarks about the visually impaired. Some of the alleged remarks pertained to one of Burkhardt's superiors. Islam stated that she felt Burkhardt's statements violated DRS's harassment policy.
Upon receiving a copy of the memorandum, Burkhardt wrote Islam a letter explaining that she had not harassed anyone and requesting that secretaries receive training on how to work for persons who are blind. Burkhardt stated that the superior whom she had allegedly harassed, Ani Stevenson, had also harassed her in the past. On April 12, 1999, Hopkins wrote a letter informing Burkhardt that DRS intended to suspend her for two days without pay because her remarks created a hostile working environment and constituted insubordination and unwillingness to perform her job duties, which included reading for and assisting visually impaired co-workers.
Burkhardt received Hopkins' letter before work on the morning of April 14, 1999. After reading it, she called Hopkins and David Hurte, a DRS Senior Vocational Rehabilitation Counselor, and told them she "quit playing ball" and they could find another "flunky to pick on." Around 2:45 p.m., Burkhardt's attorney left Hopkins a voice mail message informing him that Burkhardt had not intended to resign and that her resignation would not be effective until she put it in writing. That same day, Rose King, DRS's Senior Personnel Officer, drafted a letter to Burkhardt acknowledging her resignation. On April 19, 1999, Burkhardt wrote Hopkins a letter of response to the proposed suspension, informing him that she had attempted to return to work each day since April 14th but had been refused entry. Burkhardt also stated that,she had not given notice of resignation and would attempt to return to work the following day. She was never permitted to return to work.
Burkhardt filed another appeal with MPC on May 3, 1999, alleging ongoing harassment and retaliation by DRS, protesting DRS's proposed suspension and "lock out," and requesting a formal hearing. On June 15, 1999, Howard dismissed the appeal, stating that Burkhardt had not provided evidence that any of her rights had been violated. Burkhardt filed a petition for rehearing, which Howard denied on July 27, 1999. On August 24, 1999, Burkhardt filed a second petition for judicial review. Appeal no. 98,114.
In an order filed on July 15, 2002, the trial court denied the appeals and affirmed both the February 1, 1999, and July 27,1999, final orders of MPC. Burkhardt now appeals to this Court.2
STANDARD OF REVIEW
An appellate court may not disturb an order of an administrative agency unless it is erroneous under 75 O.S. 322 (2001). Okla. Corp. Comm'n v. Bauer, 1997 OK CIV APP 83, T 5, 951 P.2d 124, 126. Section 75 O.S. 322(1) provides that a court may set aside, modify, or reverse an administrative order if it "determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are":
"(a) in violation of constitutional provisions; or
"(b) in excess of the statutory authority or jurisdiction of the agency; or
"(c) made upon unlawful procedure; or
"(d) affected by other error of law; or
"(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, . . . including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or
"(f) arbitrary or capricious; or
"(g) because findings of fact, upon issues essential to the decision were not made although requested."
Title 75 O.S. 322(1) (2001) (footnotes omitted; emphasis added). Section 322(3) provides that "the reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error to the appellant."
In Tulsa Area Hospital Council, Inc. v. Oral Roberts University, 1981 OK 29, 10, 626 P.2d 316, 320, the Oklahoma Supreme Court stated:
"Great weight is to be accorded the expertise of an administrative agency, and a presumption of validity attaches to the exercise of expertise when the administrative agency is reviewed by the judiciary. A court of review may not substitute its own judgment for that of an agency, particularly in the area of expertise which the agency supervises . . . . If the facts determined by the administrative agency are supported by substantial evidence, and the order is otherwise free of error, the decision of the agency must be affirmed."
"On appeal from an administrative decision, the appellate courts, whether the District Court, the Court of Civil Appeals or the Supreme Court, apply the same standards of review directly to the administrative record." Bauer, 1997 OK CIV APP 83, 5, 951 P.2d at 126.
Burkhardt first argues that MPC and the trial court both erred in failing to issue findings of fact and conclusions of law pursuant to 75 O.S. 312(A) (2001). The record reveals that MPC did, in fact, issue findings of fact and conclusions of law in response to Burkhardt's appeal. The trial court did not issue findings of fact and conclusions of law, but stated, "The Court having reviewed the transmitted and supplemented records, all motions and attachments thereto, and the briefs, finds that the appeal should be denied and the administrative agency order affirmed."
Burkhardt has cited no authority which expressly or even impliedly requires a trial court reviewing an administrative order to issue specific findings of fact and conclusions of law. We conclude that, because a trial court acts as an appellate court under section 75 O.S. 322, see Bauer, 1997 OK CIV APP 83, 5, 951 P.2d at 126, and any appellate court must apply the same standard directly to the administrative record, the absence of specific findings of fact and conclusions of law in the trial court's order does not constitute reversible error. For this reason, In re Death of Robinson, 1985 OK CIV APP 42, 718 P.2d 714, cited by Burkhardt, is not applicable. That case addressed an order of the workers' compensation court, which acts in a different capacity than a trial court reviewing a final order of an administrative agency.
Burkhardt's next argument appears to be an extension of her first. She argues that MPC's order dismissing her appeal of the. proposed suspension does not comply with Baumgardner v. State, ex rel. Department of Human Services, 1990 OK 24, 789 P.2d 235, and that the suspension was the product of retaliatory animus.
In Baumgardner, the Supreme Court stated that the findings of an agency acting in its adjudicative capacity must:
"1) recite the underlying facts which support the ultimate facts drawn from the evidence; 2) be free from ambiguity which raises doubt concerning whether the agency's decision is supported by the applicable law and utilized the legal theory correctly; and 3) be sufficiently specific to enable a reviewing court to ascertain whether the ultimate facts upon which the decision is rested afford a reasonable basis for the order."
Id. at 6, 789 P.2d at 238. In finding an MPC order insufficient, the Court stated, "The findings of fact give an account of procedural rather than of ultimate facts. The remaining paragraphs of the order consist of conclusory statements which are unsupported by actual findings of fact." Id. at 7, 789 P.2d at 238. MPC correctly points out that, in dismissing Burkhardt's appeal after an investigation pursuant to section 455:10-7-1(a) of the Oklahoma Administrative Code (OAC), it was not acting in its adjudicatory capacity. Thus, it was not required to issue the type of detailed findings required by the Court in Baumgardner.
Burkhardt also asserts that she was not given an opportunity to respond to the suspension notice, in violation of section 455:10-11-15(b) of the OAC. This assertion, however, is inaccurate. Hopkins' April 12, 1999, letter to Burkhardt informing her of the impending suspension gave her five working days within which to reply. When Burkhardt received the letter on April 14, 1999, she called Hopkins and Hurte and told them she "quit playing ball." Although Burkhardt wrote a letter to Hopkins on August 19, 1999, DRS had already interpreted her April 14th phone calls as a resignation. We conclude that Burkhardt was given an opportunity to respond to the proposed suspension but, due to her actions on April 14th, she responded out of time.
We further conclude that there is substantial evidence in the record to support the basis - harassment - for the suspension. In February and March 1999, Islam received reports from four DRS workers describing remarks by Burkhardt to the effect that she could not cope with working for blind people. Although Burkhardt wrote Islam a letter attempting to explain that her remarks were intended to convey her need for training, rather than bias, we cannot weigh this evidence. Our task is only to search for substantial evidence supporting MPC's decision.4
Burkhardt next argues that MPC's first order must be reversed because DRS did not allow her to review her entire personnel file and, therefore, she suffered "irreparable prejudice" in her appeal to MPC. Title 51 O.S. 24A.7(C) (2001) of the Open Records Act states that "except as may otherwise be made confidential by statute, an employee of a public body shall have a right of access to his own personnel file." Section 530:10-11-4 of the OAC provides, "Each employee shall have the right to review his or her individual personnel records on file with the employing agency. Such review shall be during regular business hours in accordance with procedures prescribed by the agency."
In his October 28, 1998, response to Burkhardt's initial grievance, Hopkins stated:
"You allege unjust and unequal treatment in your being denied access to your "personnel files" in accordance with OAC 530:10-11-4. The files described in your grievance are those maintained in the district supervisor's office and are not your permanent or official personnel files.
"Your official personnel files are maintained in the Human Resources Unit and may be accessed by contacting that unit and making necessary arrangements. The Open Records Act, Title 51 O.S. Section 24A.1 through 24A.18 does not specifically address access to files maintained by supervisors on employees. Though it may be interpreted that there is no legal mandate granting you access to such files, I believe you should have the opportunity to review information which may directly or indirectly concern your performance of assigned job duties. I am directing persons in control of unofficial personnel files concerning you to allow you access to those files. It will be necessary for you to arrange to view the files at the location where they are housed."
(Emphasis added.) Although Burkhardt argues that DRS should have informed her when the records were ready for her review, Hopkins' letter clearly placed the onus on Burkhardt to contact those supervisors whom she believed were keeping unofficial records. Burkhardt filed her appeal with MPC on November 23, 1998, which would have given her several weeks' time within which to request to review the records. There is no evidence in the record that she made any such request prior to filing her appeal with MPC. Moreover, Burkhardt has made no showing here that there was evidence in those purported records which would have supported her position. Thus, we cannot say she has suffered "irreparable prejudice," and we will not reverse MPC's order on this basis.
Burkhardt further argues that MPC's order should be reversed because, during the investigation, Brian Long, MPC's Personnel Analyst, attempted to interview her when her attorney was not present. She asserts that this amounted to a violation of section 455:10-7-2(d) of the OAC, which states in relevant part:
"Parties and witnesses may be interviewed face-to-face or by telephone to obtain relevant facts and knowledge concerning the issues in dispute. Interviews may be conducted at the Commission office or any other location determined appropriate. A party or witness may have his or her representative in attendance at the interview to act in an advisory role only."
(Emphasis added.) Long called Burkhardt on or about November 25, 1998, and asked her how her rights had been violated under the statutes and rules cited in her appeal. Burkhardt told Long that her attorney possessed that information and, subsequently, Long called Burkhardt's attorney and asked him the same question. The rule permits MPC officials to conduct interviews by telephone and does not require that they ask whether a party's attorney is present before placing the call. Moreover, Burkhardt did not give Long any relevant information. Thus, we cannot say that Longs approach was illegal under section 455:10-7-2(d) or that it warrants reversal of MPC's order.
Burkhardt next argues that MPC and the trial court erred in finding that her telephone calls to Hopkins and David Hurte on April 14, 1999, wherein she stated that she had "quit playing ball," and that DRS could find another "flunky to pick on," constituted a resignation. In support of this argument, she cites section 530:10-11-132 of the OAC, which provides:
"To resign in good standing, an employee must give the Appointing Authority at least 14 calendar days prior notice unless the Appointing Authority agrees in writing to permit a shorter period of notice. A written resignation shall be supplied by the employee to the Appointing Authority. The Appointing Authority will supply the employee written confirmation of any shorter period of notice that is allowed."
(Italicized emphasis added.) Burkhardt interprets this section to mean that a resignation is not valid unless it is in writing and that any resignation is not final until the employee has received written confirmation of the resignation. However, the clear and unambiguous language of this section provides that an employee must give at least fourteen days notice in writing if the employee expects to resign in good standing. It goes without saying, then, that an employee may resign in another fashion, but he or she will not have resigned in good standing. Section 530:10-11-132 simply does not provide that any resignation is not final until an employee has received a written confirmation.
In Rogers v. Carleton, 1941 OK 58, 4, 110 P.2d 908, 909, 188 Okla. 470, the Supreme Court stated that the resignation of a public officer becomes effective when it is accepted by the proper authorities, unless there is a statutory provision to the contrary. In this case, there is no statutory provision to the contrary. Although Burkhardt was not a public officer, we find Rogers instructive.
Burkhardt called Hopkins and Hurte around 9:00 a.m. on April 14, 1999. At 12:46 p.m. on that date, Hurte drafted a letter to Hopkins, stating:
"On the above date, Burkhardt terminated her position with DRS. Events which lead to the conclusion of the above are as follows:
"At approximately 8:15 AM, Burkhardt contacted the office to inform staff of being late for work. Reason given was being in receipt of a Certified Letter from DRS. The Post Office in Norman, Oklahoma did not open until 8:30 AM. Burkhardt wanted to wait.
"At approximately 8:55 AM, Burkhardt called back to say "I quit, they won, and I do not want to play ball anymore".
Hopkins drafted a memorandum on April 20, 1999, to be placed in DRS's files:
"On April 14, 1999 at approximately 9:00 a.m., Burkhardt called on the direct phone line into my office. She stated "you win, I quit". She made an additional statement about my reading about this in her memoirs. As I replied okay, she hung up. I immediately advised Linda Parker Director of DRS and we mutually agreed that we should accept the oral resignation from Burkhardt. I left the building to attend a meeting but called Rose King while enroute sic. Ms. King agreed to send Burkhardt our written acceptance of her oral resignation."
In a letter dated April 14, 1999, Rose King acknowledged Burkhardt's resignation, effective at the close of business on that day. Although Burkhardt and her attorney both attempted to rescind the resignation later that day, it is clear that DRS accepted it at the time Burkhardt called Hopkins and Hurte. MPC weighed these facts in issuing its report, and we cannot reweigh them on appeal. We conclude that there is substantial evidence in the record to support the determination that Burkhardt resigned on April 14, 1999.
Finally, Burkhardt argues that MPC and the trial court both erred in failing to apply the proper analysis of causation in a retaliation claim and that she presented sufficient evidence of causation to sustain her claim of retaliation. Burkhardt relies on several Oklahoma cases which utilize the "significant factor" test or apply a burden-shifting analysis to determine whether an employer's actions were retaliatory. We, however, do not believe it is necessary to engage in lengthy analysis regarding the burden of proof, because our task is to determine whether there is substantial evidence supporting MPC's conclusion that DRS's actions were not retaliatory.5
Burkhardt argues that the negative performance evaluation given by her supervisors, DRS's proposed suspension, and DRS's refusal to accept her retraction of her resignation, were all done in retaliation for her having reported a double order made by Crawford. As we discussed in part II of this opinion, there is substantial evidence in the record to support DRS's basis for the proposed suspension. There is also substantial evidence to support the determination that the negative performance evaluation was not retaliatory.
DRS initiated informal discipline against Burkhardt in April 1998, pursuant to section 455:10-11-10 of the OAC. On April 1, 1998, Islam and Gameson met with Burkhardt to discuss a conflict between Burkhardt and an intern, Valerie Hamilton. They cautioned Burkhardt about being rude to Hamilton. On May 11, 1998, Islam and Gameson conducted a meeting with both Burkhardt and Hamilton, noted that the conflict continued, and issued another warning to Burkhardt.
On June 1, 1998, Islam, Gameson, and Crawford held another meeting with Burkhardt, after which they and Emmett Eads, DRS's District Supervisor, sent a memorandum to Burkhardt advising her to refrain from making rude or sarcastic comments and warning her the repeated infractions would result in formal discipline. The same day, Islam, Gameson, and Crawford sent Burkhardt a memorandum explaining the manner in which they wanted her to deliver telephone messages. They conducted another meeting with Burkhardt on June 25, 1998, to address her non-compliance with the procedure.
On July 10, 1998, Islam, Gameson, and Crawford conducted a thirty-day review to discuss Burkhardt's compliance with the issues addressed at the June 1 hearing. After the meeting, they drafted another memorandum, also signed by Eads, stating:
"As of this date, there have been continued infractions which include sarcastic comments and notes, insubordination and not following supervisor instruction.
* * * * *
"Without approval from her supervisors, Mary Anita decided to disregard the instructions outlined in the memo and began to E-mail all telephone messages. On June 25, an informal meeting was held. This meeting included Mary Anita, Cindy, Syedah and Lisa. The meeting was held to instruct Mary Anita to return to the original plan for dissiminating sic telephone messages. A copy of this memo was given to her. Mary Anita stated she thought this was "stupid" to follow this memo.
* * * * *
"Additional discussion with Mary Anita included examples of rude or sarcastic comments in which she should refrain. These comments have been documented. Also addressed was the handling of sensitive materials involving client information which could result in a breach of confidentiality."
On the evaluation, signed by all parties in August 1998, Islam, Gameson, and Crawford gave Burkhardt an achievement rating of "Does Not Meet Standards" as to three of her job tasks: filing; supporting and training other staff members; and reading materials to visually impaired employees.6
As Burkhardt points out, Hopkins noted in his October 28, 1998, letter that the rating of "Does Not Meet Standards" on the task of reading to visually impaired employees seemed to have been based on mis-communication and he would request that the rating be changed to "Meets Standards" for that particular task. He also noted, however:
"The incident of the double order did not involve each of the individuals responsible for your evaluation and there is no evidence that they conspired to punish you for reporting your discovery. Additionally, there is documentation of concern with your job performance as early as December of 1997 which preceded the discovery of the duplicate equipment order. In conversation with me, you indicated that most of the problems centered around your relationship with the Carl Albert intern who coincidentally initiated her assignment in your office near the time that you disclosed the ordering infraction."
We find that there is substantial evidence showing that the performance evaluation was not the product of retaliation on the part of DRS. Additionally, the evidence supports the conclusion that DRS's refusal to accept Burkhardt's retraction of her resignation was not the product of ongoing retaliation. Having reviewed the record in totality, we find no basis upon which to reverse MPC's orders.
There is substantial evidence in the record to support MPC's orders and they are not clearly erroneous under 75 O.S. 322 (2001). Thus, we find no error on the part of the trial court in affirming them.
TAYLOR, P.J., and STUBBLEFIELD, J., concur.
1 The record contains an October 21, 1998, e-mail message from Mary A. Burkhardt to Raymond Hopkins, informing Hopkins that Cindy Crawford had double ordered an alarm clock for one of her patients in June 1998. There is no evidence that Burkhardt informed Hopkins of any double order by Crawford prior to the filing of the grievance on September 14, 1998. Burkhardt stated, however, that she presented paperwork to Lisa Gameson verifying a double order on or about January 23, 1998, but the paperwork disappeared shortly thereafter.
2 Burkhardt has filed two appeals which were made companions by order of the Oklahoma Supreme Court on October 2, 2002. In June 1999, Burkhardt filed suit against DRS in federal court, charging DRS with race-based discrimination and sexual harassment. Burkhardt, who is white, alleged that she was treated differently than non-white DRS employees. She also alleged that several e-mail messages, which had been sent to her on October 19, 1998, by Dennis Williams (another DRS employee who worked in a different location and whom Burkhardt stated she did not know) constituted sexual harassment. DRS reprimanded Williams for his behavior. The outcome of the federal lawsuit, however, is not documented in the record.
3 Burkhardt also asserts that neither MPC nor the trial court engaged in any meaningful review of her case and that the trial judge stated, in chambers, that he was going to "let the people on 23rd Street presumably, MPC worry about it." The record fails to support Burkhardt's assertion that her case did not receive meaningful review. Moreover, the statement allegedly made by the trial judge is not a part of the trial court record, and this Court cannot discern the context in which it was made. Therefore, the alleged statement does not show that Burkhardt's case did not receive meaningful review in the trial court.
4 Although Burkhardt states in her brief that DRS's initial decision to suspend her was based upon her refusal to work with an intern, Valerie Hamilton, and her unwillingness to read to her visually impaired coworkers/supervisors, it is clear that the primary reason for the suspension was Burkhardt's negative comments about the blind.
Burkhardt also argues that MPC's orders should be reversed because MPC delegated its decision-making authority to an individual investigator. There is nothing in the record to indicate that the investigation was conducted in a manner which is not typical of MPC, and we will not reverse MPC's orders on this basis.
5 We also note that the parties do not agree on the applicable statutory provision governing retaliation claims by state employees. Burkhardt relies on 74 O.S. 840-2.5 (2002), which is the "Whistleblower Act," and MPC relies on 74 O.S. 840-6.2 (2001), which outlines MPC's grievance procedure. Section 74 O.S. 840-6.2(C) provides, "No employee shall be disciplined or otherwise prejudiced in his or her employment for exercising his or her rights under the internal agency grievance resolution procedure." Burkhardt, however, alleges ongoing retaliation based upon her report of a double order made by one of her supervisors, which would invoke section 74 O.S. 840-2.5(B)(2) of the Whistleblower Act, which prohibits an employer from retaliating against an employee who reports mismanagement by an agency or one of its employees. Regardless of which statutory provision we apply, however, our analysis will be the same: we must determine whether there is substantial evidence to support MPC's decisions on Burkhardt's appeals.
6 Burkhardt's supervisors also gave her an achievement rating of "Meets Standards" as to three of her job tasks: completing tasks with an overall accuracy level of 94% - 97%; arranging and scheduling services between clients and vendors; and processing claims within two working days. The first two tasks for which Burkhardt received a rating of "Meets Standards" were ranked higher in importance than the three tasks for which Burkhardt received a rating of "Does Not Meet Standards."
Citation: Unpublished Opinion No. 98,112 (2003)