LISA R. FOX, Petitioner,
EMPLOYMENT DEPARTMENT and KAISER FOUNDATION HEALTH, Respondents
Submitted: December 6, 2013.
Employment Appeals Board. 13AB0829, 13AB0830.
Lisa R. Fox filed the brief, Pro se.
Denise G. Fjordbeck, Attorney-in-Charge, waived appearance for respondent Employment Department.
No appearance for respondent Kaiser Foundation Health.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[261 Or.App. 561] NAKAMOTO, J.
On judicial review of an order of the Employment Appeals Board (the EAB), claimant challenges her disqualification from receipt of unemployment insurance benefits based on a discharge from her employment for misconduct, ORS 657.176(2)(a). The EAB set aside the decision of the administrative law judge (ALJ) allowing benefits. Because the EAB did not consider claimant's intent in regard to the incident leading to her termination, and the incident could be an isolated instance of poor judgment and not disqualifying misconduct, the EAB's order lacked substantial reason, and we reverse.
We take the facts, which are undisputed, from the EAB's order and the record. Kaiser Foundation Health (Kaiser) employed claimant as a pharmacy technician from August 1999 to January 29, 2013. Kaiser expected employees to clock in and start work no more than four minutes after their shift started, to accurately report their time worked, and to refrain from falsifying their time records. Claimant understood those expectations. On January 17, 2013, claimant's shift started at 6:30 a.m. When claimant arrived at Kaiser's parking lot, she was concerned that she would be late for work and parked her vehicle in a loading zone near her building to ensure that she clocked in by 6:34 a.m. After clocking in at 6:33 a.m., claimant left the building, moved her vehicle to a parking space, and then returned to the building. She then went to her work station and started work at 6:36 a.m. She worked subsequent shifts until she was terminated at the end of January. Kaiser's reason for terminating claimant was that she had violated its attendance policy on earlier occasions and that claimant had committed time-card fraud on January 17.
The Employment Department initially denied claimant's unemployment insurance benefits claim, concluding that Kaiser had discharged claimant for misconduct because claimant had committed time-card fraud on January 17, which was a willful violation of the standards of behavior that an employer has the right to expect from an employee. Claimant then appealed the department's decision and requested a hearing. The ALJ held a hearing at which [261 Or.App. 562] claimant and a Kaiser manager testified. The ALJ determined that Kaiser had not discharged claimant
for misconduct, and therefore claimant was not disqualified from receiving benefits.
The ALJ believed claimant's testimony that she had not purposefully committed attendance violations in the past and that, on those prior occasions, she had " punched in as required," but " that the time-record system was new and gave no indication to an employee whether she had clocked in or out successfully or not, and that the corrective actions to which [Kaiser] testified came several weeks after the alleged incidents so that she had no meaningful opportunity to refute them at the time." As for the car-moving incident on January 17, the ALJ found that " [c]laimant had in the past sometimes parked in the loading zone without later moving her vehicle" and found credible claimant's testimony that she had made a snap decision to run out to move her car. The ALJ credited claimant's testimony that " she was unaware that her actions might be construed as time fraud" and that " her decision to move her vehicle was an instantaneous one without reflection." The ALJ further found that claimant " has time-management issues due to her formally diagnosed attention deficit order." The ALJ concluded that her conduct " lack[ed] the mens rea required by OAR 471-030-0038" for misconduct, that is, willful or wantonly negligent violation of the standards of behavior that an employer has a right to ...