Brenda D. KAY, Petitioner,
EMPLOYMENT DEPARTMENT and Salmon River Contractors, Inc., Respondents.
and submitted May 22, 2018
Employment Appeals Board 2015EA B0518R
T. Lafky argued the cause for petitioner. Also on the brief
was Leslie D. Howell.
G. Fjordbeck, Assistant Attorney General, waived appearance
for respondent Employment Department.
appearance for respondent Salmon River Contractors, Inc.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
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.
Or.App. 701] AOYAGI, J.
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.
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
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
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