Teamey v. Employment Division ( 1990 )

ROSSMAN, J.

Employer seeks review of an Employment Appeals Board (EAB) decision that allowed unemployment benefits to claimant. EAB concluded that claimant voluntarily quit her job, but that she did so with “good cause.” ORS 657.176(2) (c);¹ OAR 471-30-038(4). We affirm.

After her request for unemployment benefits was denied in an administrative decision,² claimant requested a hearing. Only she and employer testified. The referee set aside the administrative decision. He made these findings of fact:

“(1) Claimant worked for employer from December 6, 1988 until she quit effective February 10, 1989. (2) She was the business manager/receptionist in employer’s sole practitioner dental office. (3) Claimant had enjoyed a good personal employer/employe relationship with employer prior to the week starting February 6,1989. (4) On Wednesday, February 8, claimant received a call from her husband, while at work, where she was informed that he had received a long awaited promotion which would necessitate a transfer to the coast. (5) Employer did not speak to claimant the rest of the day and ignored her when she attempted conversation. (6) During the day, claimant heard employer make remarks to patients that it was impossible to keep employes there. (7) Towards the end of the day, employer said to claimant that he needed to find a replacement for her job. (8) Claimant attempted to talk to employer and explain that she was not planning to relocate for at least three to six months and maybe even the following year when her 17-year-old son would graduate from high school in Klamath Falls. (9) Employer became abrupt and stated that as far as he was concerned, claimant could leave tomorrow. (10) There was other communication at that time and employer eventually told claimant to shut up. (11) On Friday, February 10, employer was still distant from claimant and would not communicate with her. (12) He reiterated the fact that as far as he was concerned she could leave the job now. (13) Claimant enjoyed her work and needed the job as she has three children at home and her husband had just recently become reemployed. (14) She had left another position to come to work for employer because she felt she would enjoy working for him. (15) After the confrontations and attitude displayed by employer during claimant’s last week of work, she felt that she could no longer work for employer and quit.”

In his decision, the referee cited OAR 471-30-038(4). That rule defines “good cause”:

“Good cause for voluntarily leaving work under ORS 657.176(2)(c) is such that a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, would leave work. The reason must be of such gravity that the individual has no reasonable alternative but to leave work.”

The referee applied that rule to the facts in this case and concluded:

“Claimant testified credibly and has established the existence of a grave situation that left it impossible for her to work for employer after February 10,1989. The evidence presented by both claimant and employer was completely conflicting. The persuasive evidence is that claimant enjoyed her job and needed her job and had absolutely no motive to have quit this position other than a complete communication breakdown between herself and employer as she has expressed. Claimant was a good loyal worker who enjoyed her job and had absolutely no reason to fabricate these events that led to the ending of her job and her request for unemployment insurance.”

Employer requested EAB review. EAB adopted the referee’s decision and added this reasoning: .

“The referee found the claimant credible and we find nothing in this record that would compel us to reverse that finding. Because the situation between the claimant and the employer deteriorated to the point that there was no communication, we conclude that the claimant was faced with a situation so severe that it left her without reasonable alternative to quitting. Because the claimant left work with good cause, a disqualification from benefits is not appropriate.”

Employer has petitioned for review.³

ORS 183.482(7) provides, in pertinent part:

“Review of a contested case shall be confined to the record, the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion.”

Thus, on review, we examine the record for substantial evidence. See Garcia v. Boise Cascade Corp., 94 Or App 362, 364, 756 P2d 1245 (1988).

Employer argues that EAB’s findings were inaccurate and, therefore, do not support its conclusion that claimant left work with “good cause.” The circumstances under which a claimant voluntarily left work, and the reasons for that decision, are questions to be determined by the trier of fact, i.e., EAB. We conclude that EAB’s findings are supported by substantial evidence. Although employer’s testimony conflicted with claimant’s, EAB adopted the referee’s finding that claimant is credible.

Employer also argues that, even given the facts as found by EAB, claimant had reasonable alternatives to leaving work, i.e., she could have tried to resolve the dispute with employer or stayed at work, even if the dispute continued. EAB found that employer would not communicate with claimant except to state several times that “as far as he was concerned she could leave the job now.” That finding supports the conclusion that claimant had no reasonable alternative but to leave work. Therefore, because EAB’s findings are supported by substantial evidence, and because the findings support the conclusion that claimant voluntarily left work with good cause, claimant is not disqualified from receiving unemployment compensation.

Affirmed.

1 ORS 657.176(2) provides, in relevant part:

“An individual shall be disqualified from the receipt of benefits * * * if the authorized representative designated by the assistant director finds that the individual:

* * * *

“(c) Voluntarily left work without good cause[.]”

2 The administrative decision was based on these findings:

“1. You were employed by Dr. Bert Teamey from December 6,1988 until February 10,1989.

“2. Your employer learned from statements you made in the office that you might be leaving as your husband was to be transferred with his employer.

“3. You had a discussion on February 9,1989 about billing and job stress, which ended with your employer saying that you talked too much.

“4. You worked half a day on February 10,1989 leaving a note indicating that you were terminating your employment.

“5. You did not return to work and received your final check by mail along with a letter expressing surprise at your resignation.”

3 Neither claimant nor Division has filed a brief in this court.