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Kay v. Employment Department

Court of Appeals of Oregon

March 1, 2017

Brenda D. KAY, Petitioner,
v.
EMPLOYMENT DEPARTMENT and Salmon River Contractors, Inc., Respondents.

          Argued and Submitted November 28, 2016

         Employment Department 2015EAB0518

         Reversed and remanded.

Kevin T. Lafky argued the cause for petitioner. With him on the brief was Leslie D. Howell.

Denise G. Fjordbeck waived appearance for respondent Employment Department.

No appearance for respondent Salmon River Contractors, Inc.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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."

         Reversed and remanded.

          SHORR, J.

         Claimant 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.

         We 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.

         Claimant 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 ...


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