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Kroetch v. Employment Department

Court of Appeals of Oregon

December 10, 2014

ANN T. KROETCH, Petitioner,
v.
EMPLOYMENT DEPARTMENT and WELLS FARGO, Respondents

Argued and Submitted May 15, 2014.

Employment Appeals Board. 12AB2638.

David C. Sorek argued the cause and filed the brief for petitioner.

Clarence M. Belnavis, Erin O. Sweeney, and Fisher & Phillips LLP appeared for respondent Wells Fargo.

Denise G. Fjordbeck waived appearance for respondent Employment Department.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Schuman, Senior Judge.

OPINION

Page 138

[267 Or.App. 445] SERCOMBE, P. J.

Claimant seeks judicial review after the Employment Appeals Board (EAB) denied her unemployment benefits. The Employment Department (department) initially allowed benefits. Employer Wells Fargo requested a hearing on that allowance, but its request was untimely, and an administrative law judge (ALJ) concluded that employer lacked good cause for its tardiness. EAB reversed the ALJ, concluding that employer had good cause for filing a late hearing request. Claimant contends that EAB did not adequately explain why it disagreed with an explicit credibility determination that was central to the ALJ's conclusion that there was not good cause for employer's untimely request. We agree with claimant and, therefore, reverse and remand.

Except as noted below, we summarize the facts from the board's findings and the undisputed evidence in the record that is not inconsistent with those findings. Campbell v. Employment Dept., 245 Or.App. 573, 575, 263 P.3d 1122 (2011). Employer terminated claimant's employment, and she sought unemployment benefits. On October 18, 2011, the department determined that employer had discharged claimant, but not for misconduct, and, accordingly, allowed claimant unemployment benefits. That decision included the following information:

" IF YOU DO NOT AGREE WITH THIS DECISION SEE THE ENCLOSED INFORMATION FOR YOUR APPEAL RIGHTS.

" Date Mailed: October 18, 2011. Any appeal from this decision must be filed on or before November 07, 2011 to be timely.

" IMPORTANT INFORMATION

" If you disagree with the enclosed Administrative Decision, PLEASE USE THE FORM BELOW TO REQUEST A HEARING.

" * * * * *
" o Mail or fax this form to the Office of Administrative Hearings by the date stated on the administrative decision."

[267 Or.App. 446] (Capitalization and underscoring in original.) Employer's representative, Barnett Associates, received the decision on October 21, 2011. Barnett filed a " request for relief of charges" (Form 197) with the department

Page 139

on November 1, 2011.[1] However, Barnett did not request a hearing to contest the unemployment compensation determination by the department until November 17, 2011, 10 days after the deadline.

On January 6, 2012, ALJ Janzen held a hearing, in part to consider whether employer had good cause for filing a late hearing request. Employer argued that there was good cause for its late hearing request because Barnett staff had received incorrect advice from the department about when such a request could be filed. In support of that argument, employer offered the testimony of Danielle Sfera, an employee of Barnett. Because of the importance of Sfera's testimony to this case, we set it out in detail.

Sfera first responded to questions from ALJ Janzen:

" Q Okay, who would have been responsible for reading [the October 18, 2011, administrative decision allowing benefits]?
" A That would be me.
" Q And * * * is there some kind of procedure, or who makes the decision on whether to appeal something or not?
" A We give our recommendation to Wells Fargo, but ultimately, the decision is up to them.
" Q What happened after you received this particular decision? What was the interaction between Barnett Associates and Wells Fargo?
" A Well, at the time that this one was received, there was no interaction, as we hadn't received the claim, the request for separation, from the state. We still haven't received that [267 Or.App. 447] claim here at Barnett, as those claims do go to the location, they don't come here.
" Q Why did you need the request for separation to * * * contact the client in this case?
" A Well, without answering that claim, we don't have rights to protest that determination.
" Q What do you mean by that, what are you talking about with the request for ...

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