Ann T. KROETCH, Petitioner,
EMPLOYMENT DEPARTMENT and Wells Fargo, Respondents.
and submitted April 11, 2016
Appeals Board 12AB2638R; A159521
C. Sorek argued the cause and fled the brief for petitioner.
G. Fjord [289 Or. 299] beck waived appearance for respondent
appearance for respondent Wells Fargo.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
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
Or. 292] HADLOCK, C. J.
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.
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. 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.
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
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.
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."
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).