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Henley v. Employment Department

Court of Appeals of Oregon

April 12, 2017

Toris L. HENLEY, Petitioner,
v.
EMPLOYMENT DEPARTMENT and Sonic Drive In, Respondents.

         Employment Appeals Board 2014EAB1215.

          Submitted December 3, 2015

          Michael W. Franell fled the brief for petitioner.

          Denise G. Fjordbeck waived appearance for respondent Employment Department.

          No appearance for respondent Sonic Drive In.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge, pro tempore.

         Case Summary: Claimant seeks judicial review of a final order of the Employment Appeals Board (board) which concluded that he was not entitled to unemployment benefits under ORS 657.176(2)(c) because he "voluntarily left work without good cause." The board found that claimant did not genuinely fear for his personal safety at work and alternatively, that claimant had reasonable alternatives to leaving work. Claimant argues that the board's finding is not supported by substantial evidence. Held: The board's determination that claimant had reasonable alternatives to leaving work was supported by substantial evidence.

         Affirmed.

          FLYNN, J., pro tempore

         Claimant seeks judicial review of a final order of the Employment Appeals Board (board), which concluded that he was not entitled to unemployment benefits because he voluntarily left work without good cause. See ORS 657.176(2)(c). We conclude that the board's decision is supported by substantial evidence and, therefore, affirm.

         We take the facts from the board's findings and from the undisputed evidence in the record that is not inconsistent with those findings. See Warkentin v. Employment Dept., 245 Or.App. 128, 130, 261 P.3d 72 (2011). Claimant had worked for employer for about three years when he hired a lawyer to assert a claim for racial discrimination based on racially disparaging comments and actions of a general manager who was claimant's supervisor. In response, employer fired that general manager.

         Shortly thereafter, employer hired a new general manager who was a friend of the prior manager and who immediately started making racially discriminatory and disparaging comments towards claimant. Claimant reported this conduct to employer's franchise manager, who had been responsible for firing the previous general manager. The franchise manager came to claimant's workplace, apologized to claimant for the behavior of the new general manager, and reprimanded-but did not fire-that general manager.

         Within a month of that reprimand, the new general manager approached claimant at work, said that he wanted to kill himself and asked claimant to get him a gun because, "if he had the gun, he would put a bullet in his own brain." Another manager overheard this request. Claimant never returned to work after that day. Two days later, claimant called the police and told them "that [his] boss asked [him] for a gun and was talking about he wanted to kill hi[m] self." As evidence at the hearing, claimant submitted the police report that was generated as a result of the call. The report describes the type as "suicidal subject." However, claimant did not report the incident to the franchise manager or to any other representative of employer. Claimant applied for and was denied unemployment benefits.

         After a hearing, at which claimant provided the only testimony, an administrative law judge (ALJ) affirmed the Employment Department's denial of benefits on the basis that claimant "voluntarily left work without good cause." Claimant appealed to the board. The board also ...


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