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Fox v. State ex rel Office of State Finance7/25/2005
Mandate Issued: 08/31/2005
__ P.3d __
Permanent, classified, merit employee Terry M. Fox was discharged from employment with the Oklahoma State Finance Agency (OSF) for misconduct and conduct unbecoming a state employee for verbally threatening bodily harm to a fellow employee. Fox appealed his discharge to the Oklahoma Merit Protection Commission (MPC), which re-instated him on the ground that OSF had not conducted Fox's annual work performance evaluation. OSF appealed that decision to district court. The court asked MPC for clarification, which MPC provided in an addendum order stating that the evidence was sufficient to support discharge and the discharge would have been affirmed except for the failure to conduct the evaluation. In the meantime, OSF conducted an evaluation and discharged Fox again. Fox appealed that termination which MPC dismissed. Fox appealed that decision which the District Court consolidated with the prior case. The District Court noted compliance with the evaluation statute, the addendum order and affirmed the initial discharge. We affirm.
Terry Fox worked at the data center for the Office of State Finance. About 2:30 p.m., March 28, 2002, he was walking to the restroom when he met a fellow employee on a ramp. The other man had a rolling cart which Fox stated he pushed in front of him in an aggressive manner. Fox stepped around to avoid him, but the other man pushed the cart in front of him again. Fox got into his face, called him some names, and told him he would "whip his ass." Another employee witnessed the incident and called for intervention. The men separated. Fox was asked to leave the workplace, which he did. After investigation, OSF conducted a pretermination hearing, then discharged Fox from employment.
Fox appealed his discharge to the Merit Protection Commission, which reinstated him because it found that OSF had failed to conduct an employment evaluation within the previous year. OSF appealed that order to the District Court which asked for clarification and temporarily enjoined OSF from proceeding with disciplinary action against Fox. The District Court dissolved the temporary injunction February 27, 2003. OSF, having thereafter performed an annual employment evaluation, signed by Fox, discharged him again and held a second pretermination hearing March 24, 2003. On April 29, 2003, the District Court issued its clarification order to the Merit Protection Commission, remanding for a determination whether, but for the failure to comply with the evaluation requirement, it would have upheld the discharge. MPC answered in the affirmative May 5, 2003. The District Court recited the history of the procedure of the case and stated that it reviewed initial and supplemental briefs and issued its final order November 25, 2003. "Based upon its review, the Court finds that the first discharge of Respondent Fox would have been affirmed except for the Petitioner's failure to comply with 74 O.S. §840-4.17. The Petitioner has complied with the statute and the evidence presented supports discharge of the Respondent, therefore, the discharge is approved and affirmed."
The reviewing court affirms the agency order if it is found to be valid and if the proceedings are free from prejudicial error to the appellant. 75 O.S. 2001 §322(3). Pursuant to 75 O.S.2001 §322 (1), in the exercise of proper judicial discretion or authority, the reviewing court ... may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, 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
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