DocketNumber: 2014EAB0947; A157520
Citation Numbers: 283 Or. App. 859, 391 P.3d 887
Judges: Devore, Duncan, Flynn
Filed Date: 2/23/2017
Status: Precedential
Modified Date: 9/9/2022
Claimant seeks review of a final order of the Employment Appeals Board denying him unemployment insurance benefits because it found that claimant “voluntarily left work without good cause.” ORS 657.176 (2) (c). The board based its determination that claimant voluntarily left work on its finding that claimant could have continued working for employer after he refused to attend a meeting that employer had scheduled for claimant’s day off and at which claimant believed he would be fired. We review that order for “substantial evidence, substantial reason, and errors of law.” Franklin v. Employment Dept. 254 Or App 656, 657, 294 P3d 554 (2013). We conclude that the board’s determination that claimant could have continued working for employer is not supported by substantial reason. We reverse and remand on that basis, without addressing the board’s decision that claimant lacked “good cause” to quit.
BACKGROUND
We summarize the facts from the board’s findings and from the undisputed evidence in the record that is not inconsistent with those findings. Claimant had been employed as head chef at employer’s restaurant for almost four years when, just before the weekend of Valentine’s Day, a coworker told claimant that employer’s owner
Claimant left the restaurant at about 11:15 p.m. on Sunday and, at approximately 11:45 p.m., received a text
After scheduling the meeting, claimant questioned the coworker who reportedly had attended the secret meeting with employer and was told that employer had asked if the coworker “could take over [claimant’s] ordering duties”, and had said that claimant was being “fired” because employer “can’t afford [claimant’s] salary anymore.” Claimant then sent a text message to employer that stated:
“So I hear [you are] firing me. That is fine. Just mail me my check. Do you need my address?”
Employer never responded to that message.
Claimant did not attend the meeting on February 17. Instead, he sent employer an email at 10:05 a.m. that morning explaining his response to what he understood to be employer’s plan:
“I have learned of my dismissal from my subordinates and received a similar confirmation from your wife. It is unfortunate to receive this information in such an unprofessional and humiliating Manner. My subordinate cited [the restaurant’s] financial inability to continue to pay my salary as the reason for my termination, which was also confirmed by your wife. Naturally, I will not be attending a dismissal meeting (falling on my day off at a business I am no longer employed with) clearly designed to further humiliate. Please do forward my final check expeditiously to: [claimant’s address]”
Employer never responded to claimant’s email, and claimant did not show up for his next scheduled work shift on February 19.
Shortly after February 19, claimant received his final check, which was dated February 16—the Sunday that he last worked. Employer testified that there was no significance to this date other than that it was “in the realm of the
Employer testified at the hearing that he did not disagree with claimant’s description of events but that the coworker had misunderstood employer’s intentions. Employer testified that he told the coworker he was going to propose some changes to claimant and wanted to get the coworker’s opinion on whether the restaurant could continue operations without claimant if claimant “acted negatively” in response to the changes that employer wanted to make. When claimant did not show up for the meeting or his next scheduled shift, employer “figured [claimant] quit or he didn’t want to be there anymore.”
Employer acknowledged that when he received claimant’s text and email message expressing the belief that he was being discharged, employer “didn’t dispute it.” When asked why he didn’t respond to claimant’s text or email if it was not his intention to discharge claimant, employer responded that, “Well it could have been the end result of the meeting. I’m not saying it wasn’t a possibility. However—I mean I should have responded.”
On review, the board found that “[claimant believed the owner planned to discharge him” at the meeting, based in part “on the owner’s actions.” However, the board found,
DISCUSSION
On judicial review, claimant argues that the board’s conclusions are not supported by substantial evidence and are not “rationally related” to the board’s findings of fact. With respect to the board’s determination that claimant voluntarily quit, claimant contends that the board erred in relying entirely on the employer’s subjective plan—prior to the time of the scheduled meeting—without considering employer’s actions at the time of the scheduled meeting. Alternatively, claimant argues, his reasonable belief that he was being discharged provided good cause to leave work. We conclude that the board’s determination that claimant could have continued working for employer is not supported by substantial reason and we reverse and remand on that basis.
We begin with some general context for the dispute in this case. The threshold question in determining eligibility for unemployment benefits is whether the separation from employment occurred because the employee was discharged or because the employee voluntarily left work; “ [a] fter that question is resolved, the claimant’s entitlement to benefits depends on the reason for the discharge or voluntary quit[.]” Reynolds v. Employment Dept., 243 Or App 88, 90, 259 P3d 50 (2011). An employee is disqualified from receiving unemployment benefits if the employee has been “discharged for misconduct connected with work” or has “voluntarily left work without good cause.” ORS 657.176(2)(a), (c). The answer to the threshold question of whether an employee has “voluntarily left work” or been discharged is a legal conclusion that is based on factual findings. Van Rijn v. Employment Dept., 237 Or App 39, 41, 238 P3d 419 (2010).
A few of our cases suggest some additional, general propositions regarding the distinction between a discharge and a quit. First, our decision in Reynolds illustrates that an employee who resigns to avoid discharge may still have been discharged, if there is no evidence that the employee could have continued working. In Reynolds, the claimant resigned from her job after the employer told her that she would be discharged if she did not resign. The board determined that claimant could have continued working, because the employer did not say that the employee would be discharged “immediately” and because the employer had a progressive discipline policy under which “perhaps” the claimant would not have been discharged. 243 Or App at 91. We reversed and remanded, however, because there was no evidence that the claimant could have used the discipline policy to delay or avoid the impending discharge through the discipline policy. Id. at 92.
On the other hand, an employee’s mere belief that the employer will discharge him does not make his resignation a discharge. Sen v. Employment Dept., 218 Or App 629, 634, 180 P3d 95 (2008). In Sen, the claimant had been given a “written warning” about his behavior and was then offered money in exchange for a voluntary resignation. Id. at 631-32. The claimant believed that he would be discharged if he did not accept the offer, and he resigned. Id. at 632. The board found, however, that the claimant quit work without good cause, and we affirmed. In affirming the board’s
Next, our decision in Van Rijn illustrates that an employer can communicate that an employee will not be allowed to return to work without explicitly using those words. In Van Rijn, we reversed the board’s determination that the claimant voluntarily left work when the claimant left believing that he had been fired after he arrived three minutes late to work and his supervisor told the claimant, “I guess you just can’t make it to work on time” and to “fucking leave.” 237 Or App at 41. We concluded that nothing in the supervisor’s comment “would support a finding that claimant was welcome to remain at or return to work” for the employer. Id. at 43.
With those illustrations in mind, we conclude that employer’s actions at the time of the meeting could support a finding that claimant would not have been allowed to continue working and, thus, support a conclusion that he was discharged. The board’s determination that claimant could have continued working for employer relies entirely on employer’s testimony that—prior to the time of the meeting— he had not yet decided whether he would discharge claimant or allow him to continue working. However, employer’s plan going into the meeting is not dispositive of whether claimant could have continued working for employer when he was next scheduled to do so. The board did not consider whether employer’s actions at the time of the scheduled meeting demonstrate that claimant, ultimately, could not have continued working. That failure deprives the board’s decision of substantial reason.
We are directed to set aside or remand the order if “the order is not supported by substantial evidence in the record.” ORS 183.482(8)(c). Implicit in the requirement that the order be supported by substantial evidence is a requirement that the agency’s findings and conclusions be supported by “substantial reason.” Jenkins v. Board of Parole,
As we recently emphasized regarding the substantial reason requirement, “[i]t is essential that an agency articulate in a contested case the rational connection between the facts and the legal conclusion it draws from them.” Genova v. Veterinary Medical Examining Board, 282 Or App 234, 240, 386 P3d 40 (2016) (internal quotation marks omitted). In Genova, we determined that the agency’s order lacked substantial reason because it “failed to adequately address why it rejected” a key argument from the petitioner. Id. at 240.
For reasons similar to those that we articulated in Genova, we conclude that the board’s order lacks substantial reason. In determining that claimant could have continued working for employer, the board relied entirely on employer’s testimony that—before the meeting—he thought that, perhaps, that would be the outcome of the meeting. Yet any decision that employer made at the time of the scheduled meeting regarding whether claimant would be allowed to continue working is at least as relevant as employer’s intention prior to the meeting. Here, the evidence and the board’s own findings regarding that evidence suggest that employer made a decision at the time of the scheduled meeting that claimant would not be allowed to continue working.
Specifically, the board found that employer engaged in conduct that caused claimant to believe that he would not be allowed to continue working after the meeting. The board also found that claimant advised employer of that belief in a text and email message. Employer admitted that he saw those messages and chose not to correct claimant’s belief that he was being discharged. Instead, employer sent a final paycheck in a handwritten format that he reserved for employees who would not be continuing to work. Moreover,
Reversed and remanded.
The board uses the terms “owner” and “employer” interchangeably to refer to the individual owner whose actions are described in this opinion. We will use the term “employer” throughout this opinion.
The ALJ found that employer “was prepared to discharge claimant” based on “financial difficulties” and dissatisfaction “with claimant’s performance” in a variety of areas and had
“determined that if claimant could not change the methods by which he operated, he would be reduced from a salaried employee to an hourly employee. If claimant was unwilling to be reduced to an hourly employee or improve his performance, employer was prepared to discharge claimant.”