Higgins v. Employment Dept. ( 2023 )

309
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted October 6, 2022, affirmed July 26, 2023
Regina M. HIGGINS,
Petitioner,
v.
EMPLOYMENT DEPARTMENT
and Lawrence Company,
Respondents.
Employment Appeals Board
2021EAB0753; A177457
Regina M. Higgins filed the brief pro se.
Denise G. Fjordbeck waived appearance for respondent
Employment Department.
No appearance for respondent Lawrence Company.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
310 Higgins v. Employment Dept.
POWERS, J.
Claimant seeks judicial review of a final order by
the Employment Appeals Board (board) affirming her dis-
qualification from unemployment benefits on the ground
that she voluntarily quit work without good cause. Because
we conclude that the board’s decision is supported by sub-
stantial evidence and substantial reason, we affirm.
We review the board’s order for substantial evi-
dence, which exists when “the record, viewed as a whole,
would permit a reasonable person to make that finding.” ORS
183.482(8)(c). The board’s conclusions must be supported by
substantial reason; that is, its conclusions must reasonably
follow from the facts found. Kay v. Employment Dept., 284
Or App 167, 172, 391 P3d 969 (2017). Because the parties
are familiar with the underlying facts, we do not provide a
recitation of the factual and procedural background for this
nonprecedential memorandum decision.1
As we understand her argument on review, claim-
ant challenges the board’s order by asserting that her due
process rights were violated because, in her view, she did not
receive adequate notice of the continued hearing date and
time as required by ORS 183.413(2)(a). ORS 183.413(2)(a)
provides, in part: “Prior to the commencement of a con-
tested case hearing before any agency * * *, the agency
shall serve personally or by mail a written notice to each
party to the hearing that includes * * * [t]he time and place
of the hearing.” Claimant contends that she did not receive
the notice until two days after the continued hearing, that
she attempted to attend the hearing at the time that she
believed it to be, and that she promptly requested that the
hearing be reopened.
The board found that on August 6, 2021, an admin-
istrative law judge (ALJ) conducted a hearing at which
both claimant and employer appeared. Claimant testified,
but employer’s three witnesses did not, and the hearing
was continued until August 20, 2021, at 9:30 a.m. Evidence
in the record showed that the Office of Administrative
1
Respondent Lawrence Company did not file an answering brief and thereby
waived appearance on appeal. See ORAP 5.60 (providing that, “[i]f the respon-
dent files no brief, the cause will be submitted on the appellant’s opening brief”).
Nonprecedential Memo Op: 327 Or App 309 (2023) 311
Hearings mailed claimant notice of the continued hearing on
August 9, 2021, which was well within the required time-
frame. See OAR 471-040-0015(1) (requiring that notice be
personally delivered or mailed “at least five days in advance
of the hearing”). Additionally, claimant was at the August 6
hearing where the ALJ asked claimant if August 20 at
9:30 a.m. would work for her, repeatedly stated that the time
of the hearing would be 9:30 a.m., and concluded the hear-
ing by saying, “I’ll look forward to speaking with everybody
at 9:30 on Friday, August 20th.”
At the continued hearing on August 20, employer
appeared but did not bring witnesses, choosing instead to
rely on claimant’s testimony from the August 6 hearing.
Thus, no new evidence was presented at the continued
hearing, and the ALJ’s order concluding that claimant vol-
untarily quit work without good cause was based on the
evidence presented by claimant at the August 6 hearing.
Claimant requested that the board reopen the hearing, but
the board declined to do so because it concluded that claimant
had not “failed to appear” at the first hearing on August 6.
See OAR 471-040-0040(1) (providing that an ALJ may
reopen a hearing if, among other requirements, the party
requesting the reopening failed to appear at the hearing).
Thus, rather than a request to reopen, the board
construed claimant’s request as a request for the consider-
ation of additional evidence under OAR 471-041-0090(1)(b),
which allows for the consideration of additional evidence
provided that claimant makes a showing that the evidence
is relevant and material and that factors and circumstances
beyond the party’s reasonable control prevented the party
from offering the evidence into the hearing record. The
board concluded that claimant failed to meet the standard
in OAR 471-041-0090(1)(b) because: first, she did not articu-
late what additional evidence, if any, she would have offered
at the continued hearing; and second, she failed to show
that it was beyond her reasonable control to participate in
the continued hearing.
Based on evidence in the record from the August 6
hearing, the board concluded that “claimant failed to
establish that the reason she quit work was such that a
312 Higgins v. Employment Dept.
reasonable and prudent person of normal sensitivity, exer-
cising ordinary common sense, would have quit, especially
since claimant continued working for the employer for over
a year after break-ins and IP theft occurred.” See OAR
471-030-0038(4) (“Good cause for voluntarily leaving work
under ORS 657.176(2)(c) is such that a reasonable and pru-
dent person of normal sensitivity, exercising ordinary com-
mon sense, would leave work.”). Accordingly, the board
affirmed the ALJ’s decision that claimant quit work without
good cause and was disqualified from receiving benefits.
Having reviewed the record, we conclude that the
evidence in the record, viewed as a whole, would allow a rea-
sonable person to conclude that claimant was provided with
adequate notice of the continued hearing. That is, there is
substantial evidence in the record to support the board’s
findings. Further, we conclude that the board’s findings of
fact are rationally related to its conclusion that claimant
quit work without good cause.
Affirmed.