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Kay v. Employment Department and Salmon River Contractors, Inc.

Court of Appeals of Oregon

July 5, 2018

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

          Argued and submitted May 22, 2018

          Employment Appeals Board 2015EA B0518R

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

          Denise G. Fjordbeck, Assistant Attorney General, waived appearance for respondent Employment Department.

          No appearance for respondent Salmon River Contractors, Inc.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Claimant seeks judicial review of an order of the Employment Appeals Board (EAB) denying unemployment benefits. She assigns error to the EAB's determination that she left work voluntarily and did so without good cause. Claimant left work early one day due to a stress-induced migraine and did not return messages from the owner for several days. At the end of the week, the owner sent hostile text messages to claimant, which caused her to quit work. Claimant was denied unemployment benefits on the basis that she voluntarily left work without good cause and therefore was disqualified from receiving benefits under ORS 657.176(2)(c). The EAB found that, although the owner's hostile text messages "created a grave situation by indicating to claimant that her relationship with the employer was irremediably broken," claimant was responsible for the situation because of her failure to return his messages. Held: The EAB's finding regarding the impetus for the owner's hostile text messages was not supported by substantial evidence. As a result, the conclusions based on that finding were flawed such that the order lacked substantial reason.

         Reversed and remanded.

         [292 Or.App. 701] AOYAGI, J.

         This administrative matter regarding the denial of unemployment benefits is before us for the second time. In our first opinion, we reversed and remanded an order of the Employment Appeals Board (EAB), denying unemployment benefits to claimant, on the ground that it lacked substantial reason. See Kay v. Employment Dept., 284 Or.App. 167, 169, 391 P.3d 969 (2017) (Kay I). On remand, the EAB issued a new order. For the reasons that follow, we conclude that the EAB's new order also lacks substantial reason and, accordingly, reverse and remand.

         The EAB found the following facts. Claimant worked for Salmon River Contractors, Inc. (Salmon River) for several years. Her husband also worked for Salmon River, as a truck driver, until 2014. Around the second week of January 2015, claimant, who was still employed by Salmon River, learned that Salmon River's owner had been giving negative employment references to prospective employers of claimant's husband. Specifically, she discovered that the owner had been telling prospective employers that claimant's husband was a drug addict and had damaged a company truck. Claimant experienced severe stress as a result of that discovery, as she believed that the owner's statements were preventing her husband from obtaining employment. On January 20, 2015, claimant left work with a migraine headache caused by the stress.

         For the next four days, claimant did not come to work. Each day, she spoke with a coworker, Contray, who was Salmon River's estimator and crew leader, about the situation and her dissatisfaction with the owner. She did not say whether she was going to return to work. During the same period, the owner sent several text messages to claimant and left several voicemails for her, asking how she was feeling and when she was going to return to work, to which claimant did not respond.

         On January 24, 2015, the owner sent claimant two text messages. The first text message stated: "You and me can talk all the shit you want, but I'm still 36 years old with [292 Or.App. 702] a multi-million dollar company and you're not. Thanks so much for the sabotage you created when I've done nothing but help you [and your husband]. You are bad people, full of jealousy. It's sad. Thank you both." The second text message stated, "I need these files back in my office, and the rest of my files. I'm calling the police." As a result of those text messages, claimant quit work on January 24, 2015. Salmon ...


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