Brenda D. KAY, Petitioner,
EMPLOYMENT DEPARTMENT and Salmon River Contractors, Inc., Respondents.
and Submitted November 28, 2016
Kevin T. Lafky argued the cause for petitioner. With him on
the brief was Leslie D. Howell.
Denise G. Fjordbeck waived appearance for respondent
No appearance for respondent Salmon River Contractors, Inc.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Claimant petitions for review of an order by the
Employment Appeals Board (EAB) denying her unemployment
benefits. Claimant was having an ongoing conflict with her
employer. Claimant left work one day after suffering a stress
induced migraine. She never returned to work after she left.
After claimant failed to contact her employer for four days
in a row, claimant's employer sent her two text messages
stating that claimant and her husband were bad people and
that her employer was calling the police on them. Claimant
refused to return to work after receiving those text
messages. Claimant fled for unemployment benefits. The EAB
concluded that claimant voluntarily left work without good
cause because claimant had the reasonable option of
discussing her problems with her employer and denied claimant
benefits. On review, claimant asserts that the EAB's
order lacked substantial evidence and reason because, in
contrast to the EAB's finding otherwise, a reasonable and
prudent person would think that talking to their employer
after receiving messages like the ones her employer sent her
would be a futile act and, thus, claimant had good cause for
leaving. Held: The EAB's decision lacks
substantial reason because the EAB failed to consider whether
claimant had a reasonable alternative to leaving work based
on the facts existing at the time she left work. The EAB did
not separately determine whether it would be a futile act for
claimant to discuss returning to work with her employer after
the employer threatened to call the police on her and called
her husband and her "bad people."
petitions for review of an order by the Employment Appeals
Board (EAB) denying her unemployment benefits. On appeal,
claimant raises two assignments of error. First, claimant
argues that the EAB erred in concluding that she voluntarily
left her employment. Second, claimant argues that the
EAB's order lacked substantial evidence and reason when
it concluded that claimant voluntarily left her employment
without good cause. We write only to address claimant's
second assignment of error. Claimant argues that the EAB
lacked substantial evidence and reason for its conclusion
that she lacked good cause for voluntarily leaving her job
after the owner of her employer, Salmon River Contractors
Inc. (Salmon River), sent her two text messages indicating
that the owner believed that claimant and her husband were
bad people and stating that he was calling the police on
them. We agree that the EAB's decision lacked substantial
reason and, accordingly, reverse and remand.
state the following "facts from [the] EAB's findings
and the undisputed evidence in the record that is not
inconsistent with those findings." See Campbell v.
Employment Dept. 245 Or.App. 573, 575, 263 P.3d 1122
(2011) (applying that standard). Claimant worked for Salmon
River from July 22, 2011 to January 20, 2015. In April 2014,
Salmon River's owner discharged claimant's husband.
Around January 13, 2015, claimant learned that the owner of
Salmon River had been giving negative references about her
husband to her husband's prospective employers.
Specifically, claimant discovered that the owner was telling
her husband's prospective employers that her husband was
a drug addict. After claimant learned of the owner's
statements, claimant spoke to a crew leader about those
statements, hoping that he could help mediate the conflict
between claimant and the owner. The crew leader never
resolved the conflict, and, despite the crew leader's
failure, claimant never discussed the owner's statements
with the owner directly.
began experiencing additional stress at work as a result of
her knowledge of the owner's statements about her
husband. That stress caused claimant migraine headaches.
Claimant left work early on January 20 because of one of
those headaches. Claimant never returned to work after she
left on January 20. Before January 21, pursuant to her
employer's policy, claimant always contacted Salmon
River's owner directly when she would be late or absent
from work. However, from January 21 through January 24,
claimant did not contact the owner despite numerous text and
telephone messages that the owner had left her. Instead,
claimant spoke every day from January 21 to January 24 with
the crew leader who she hoped would mediate the dispute.
Claimant did not tell the crew leader or anyone else at
Salmon River when she was ...