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Entrepreneurs Found. v. Employment Department

Court of Appeals of Oregon

December 10, 2014

ENTREPRENEURS FOUNDATION, Petitioner,
v.
EMPLOYMENT DEPARTMENT and LISA A. SLOAN, Respondents

Submitted August 22, 2014

Employment Appeals Board. 12AB2741.

Amy L. Angel, Iris K. Tilly, and Barran Liebman LLP filed the briefs for petitioner.

Denise G. Fjordbeck, Attorney-in-Charge, waived appearance for respondent Employment Department.

Christopher R. Page and Hershner Hunter, LLP, filed the brief for respondent Lisa A. Sloan.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

Page 769

[267 Or.App. 426] ORTEGA, P. J.

Entrepreneurs Foundation (employer) petitions for judicial review of an order by the Employment Appeals Board (the EAB), which adopted a hearing decision of an administrative law judge (ALJ) awarding unemployment benefits to claimant on the basis that employer terminated claimant but not for misconduct. Employer raises three assignments of error concerning the EAB's adoption of the ALJ's order, but all depend on its contention that the ALJ and the EAB should have based their legal conclusions and factual findings on ORS 657.176(2)(e), rather than on ORS 657.176(2)(a) and ORS 657.176(2)(c). Because employer's arguments under ORS 657.176(2)(e) were not preserved before the ALJ or the EAB, we affirm.

The facts are largely undisputed. Claimant worked as a remote employee in Portland for a little over a year, commuting once a month to employer's California office. In 2012, employer and the Silicon Valley Community Foundation (SVCF) made plans to merge. While claimant was still employed, SVCF offered claimant a new job at the same pay after the merger and told claimant that she would be allowed to continue working remotely. Claimant initially accepted the job offer. On June 29, 2012, employer's executive director sent claimant an e-mail stating that, " due to the acquisition of [employer,] there is no longer a role for you with our organization. As of the close of business today, June 29, 2012, your employment with [employer] is terminated." Later that day, claimant sent SVCF an e-mail declining its job offer because the " company culture does not support remote employees" and working remotely would be a " liability to * * * success with [the] organization." Claimant's job with employer terminated at the end of the business day on June 29. Employer and SVCF merged the next day and employer agreed to " operate under SVCF's complete control" ; employer " was not capable of employing claimant as a separate employer from SVCF after the merger."

Claimant then applied for unemployment benefits. The Employment Department (department) denied her claim, concluding that she had voluntarily left work without [267 Or.App. 427] good cause and was therefore disqualified from receiving benefits under ORS 657.176(2)(c). Claimant requested a hearing before an ALJ to contest the department's decision, after which the ALJ issued a final order concluding that claimant was eligible for benefits because she had been discharged but not for misconduct. The and the ALJ's opinion both framed the broad issue on appeal as, " Shall claimant be disqualified from the receipt of benefits because of a separation, discharge, suspension or voluntary leaving from work? (ORS 657.176, ORS 657.190 and OAR 471-030-0038.)"

Page 770

The ALJ's opinion specifically addressed ORS 657.176(2)(a) and ORS 657.176(2)(c). ORS ...


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