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Kroetch v. Employment Department

Court of Appeals of Oregon

December 13, 2017

Ann T. KROETCH, Petitioner,
v.
EMPLOYMENT DEPARTMENT and Wells Fargo, Respondents.

          Argued and submitted April 11, 2016

         Employment Appeals Board 12AB2638R; A159521

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

          Denise G. Fjord [289 Or. 299] beck waived appearance for respondent Employment Department.

          No appearance for respondent Wells Fargo.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Shorr, Judge.

         Case Summary: Claimant seeks judicial review of a final order of the Employment Appeals Board (EAB) that denied claimant unemployment benefits. Claimant argues that the EAB erred in determining that a form and attachments that employer fled with the Employment Department on November 1 expressed a present intent to appeal the Employment Department's determination that claimant was eligible for unemployment benefits. Held: Because nothing in the November 1 fling even implicitly acknowledged the eligibility decision, the fling was not an expression of a present intent to appeal that decision.

         [289 Or. 292] HADLOCK, C. J.

         Claimant seeks judicial review of a final order of the Employment Appeals Board (EAB) that denied claimant unemployment benefits. This is the second time that we have reviewed an EAB order denying claimant those benefits. As we did the first time, Kroetch v. Employment Dept., 267 Or.App. 444, 341 P.3d 137 (2014), we reverse and remand to the EAB.

         We begin with the facts, which we take from the EAB's findings and from undisputed facts in the record. Id. at 445. Employer terminated claimant's employment and claimant sought unemployment benefits. On October 12, 2011, using a "Form 197, " the Employment Department notified employer's representative, Barnett Associates, Inc., of the potential charges to employer that would result from claimant's claim.[1] On October 18, 2011, the department issued its administrative decision number 113857, in which it determined that employer had discharged claimant, but not for misconduct. Thus, the department allowed claimant benefits.

         The same day, the department mailed Barnett notice of its determination that claimant was eligible for benefits, and Barnett received that notice on October 21, 2011. The mailing included a form that could be filled out and returned to request a hearing on the eligibility determination. The period for requesting a hearing on that decision ran through November 7, 2011. See ORS 657.269(2) (allowing 20 days after mailing of notice of decision to file request for hearing).

         On November 1, 2011, a Barnett employee faxed the Form 197 that Barnett had received from the department- with additional information added to the form by a Barnett employee-to the department's Salem office. That form is entitled "Notice of Claim Determination (Potential Charges)" and includes identifying information for the worker, the amount of the employer's base year wages, and a number for "potential charges." A Barnett employee had filled in the date [289 Or. 293] of claimant's last day of work on the line for "worker's last day of work" and stated that the reason for separation or termination was "claimant violated code of ethics policy." The Form 197 states, "to request relief, please check this box, " and the Barnett employee checked the corresponding box. Attached to the completed Form 197 were 88 pages of documentation regarding the circumstances of claimant's discharge.

         On November 17, 2011, Barnett submitted a request for hearing on the department's eligibility determination, using the form that the department had provided with the notice of that decision. An attached letter stated, "We are in receipt of your Notice of Determination informing us that the claimant referenced above is eligible for unemployment benefits. We are protesting this determination as the claimant violated known Wells Fargo company policy. Please reconsider your determination or schedule an unemployment hearing via telephone."

         As we will explain further below, Barnett's November 17 request for a hearing on the eligibility determination was untimely. Accordingly, the question presented here is whether employer's November 1 filing-the Form 197 and its attachment-expressed a present intent to appeal the eligibility determination and, consequently, also was a request for hearing on that decision (and a timely one). Before ...


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