Date: 05-15-2013

Case Style: Kathy D. Campbell v. Employment Department

Case Number: A150346

Judge: Hadlock

Court: Oregon Court of Appeals on appeal from the Employment Appeals Board

Plaintiff's Attorney: Larry L. Linder and Law Office of Larry L. Linder, LLC, filed the brief for petitioner.

Defendant's Attorney: Denise G. Fjordbeck waived appearance for respondent Employment Department.

No appearance for respondent Willamette Education Service District.

Description: 2 Claimant seeks review of a final order on reconsideration of the
3 Employment Appeals Board (EAB) that denied her unemployment insurance benefits on
4 the ground that she had voluntarily resigned from her job without good cause. See ORS
5 657.176(2)(c) (individuals are disqualified from receiving benefits if they "[v]oluntarily
6 left work without good cause"). The EAB's order on reconsideration reached the same
7 conclusion as had its original order, which also denied claimant's request for benefits. As
8 discussed in more detail below, we reversed and remanded that initial order for
9 reconsideration because we determined that it was not supported by substantial reason.
10 Campbell v. Employment Dept., 245 Or App 573, 581, 263 P3d 1122 (2011) (Campbell
11 I). Claimant contends that the EAB's order on reconsideration also is flawed; she argues
12 both that the order is not supported by substantial evidence and reason and that the order
is inconsistent with our holding in Campbell I.1 13 We disagree and, for the reasons set
14 forth below, we affirm.
15 We review the EAB's order "for substantial evidence and errors of law, and
16 to determine whether [its] analysis comports with substantial reason." SAIF v. Ramos,
17 252 Or App 361, 363, 287 P3d 1220 (2012). Substantial evidence supports a factual
18 finding "when the record, viewed as a whole, would permit a reasonable person to make
19 that finding." ORS 183.482(8)(c). An order comports with substantial reason when it
1 Neither the Employment Department nor claimant's former employer filed a
response brief in this court.
2
1 "articulate[s] a rational connection between the facts of the case and the legal
2 conclusion." Endres v. DMV, 255 Or App 226, 229, 297 P3d 505 (2013).
3 In its order on reconsideration, the EAB adopted those factual findings that
4 it had made in its initial order, as summarized in Campbell I, and it also made additional
5 findings. Our decision in this case turns on the EAB's findings about events immediately
6 surrounding claimant's December 1, 2009, decision to leave her job. However, Campbell
7 I provides helpful background information regarding events that preceded claimant's
8 resignation, and we quote from that opinion here:
9 "Claimant was the director of fiscal services for the Willamette Educational
10 Service District (WESD) from July 1, 2007, until she resigned effective
11 December 1, 2009. Claimant reported directly to WESD's superintendent;
12 she was responsible for advising the superintendent on all fiscal matters,
13 preparing budget documents, and overseeing the budget process. Her
14 position also required her to authorize expenditures, and, as the EAB found,
15 she 'was responsible for their "good judgment" and "lawfulness," as
16 provided in the Oregon Accounting Manual (OAM) 10.40.00 PO.' During
17 her employment, claimant held a 'certificate of school business
18 management.'
19 "In October 2008, claimant began voicing concerns about financial
20 improprieties and mismanagement at WESD. One of her concerns centered
21 around the issuance of contracts that claimant contended were in violation
22 of Internal Revenue Service rules and Oregon statutes. She was also
23 concerned that school district funds were being improperly commingled
24 with other funds and not properly reported to the board or in the annual
25 audit. Claimant was disturbed that the superintendent had ordered an
26 increase in the rate that school districts would be charged for WESD's
27 services, even though the superintendent had been told that the increase was
28 not needed because the amounts collected in the prior year had not yet been
29 spent. The superintendent stated that a less than three percent increase
30 would 'look funny' and cause the districts to ask questions."
31 245 Or App at 575-76 (footnote omitted).
32 Claimant continued to raise concerns over the next several months, not only
3
1 with her supervisor, but also with WESD's auditors, board chair, and legal counsel. Id. at
2 576. Claimant was away from work on medical leave from early June through late
3 September 2009. During that period, she was dropped from two management e-mail lists
4 and some of her work duties were removed. Id. at 577. After claimant returned to work,
5 she and the deputy superintendent met with WESD's human resources director in late
6 November 2009. In Campbell I, we described the events culminating in claimant's
7 ultimate resignation:
8 "During the meeting, claimant brought up several concerns about the
9 misuse of funds. She also told the deputy that they were violating
10 independent contractor rules and that 'they should not be issuing a bad
11 contract today if they know they are violating the rules.' The deputy
12 indicated that 'they did not have to fix the contracting situation yet, the
Secretary of State's office would give him 4-6 weeks.'[2] 13 Claimant said that
14 it was 'very difficult for her to do her job' and that she felt that 'she was
15 being retaliated against and intimidated.'
16 "Claimant resigned on December 1, 2009, as EAB described it,
17 'because she believed her concerns were being ignored and that she would
18 be "forced to continue doing * * * improper things" that put her school
19 business manager certification at risk.'"
20 Id. at 577-78 (footnote omitted).
21 Claimant subsequently sought unemployment insurance benefits, which the
22 Employment Department denied. She then asked for and received a hearing before an
23 administrative law judge (ALJ), who agreed with the department and issued a decision
24 stating that claimant had resigned without "good cause" to do so and therefore was
2 At that time, the Secretary of State's office was reviewing WESD's financial
practices. In 2010--after claimant had resigned--the office produced a report that
"'identified extensive and obvious weaknesses at WESD that would not persist in an
organization that is responsibly governed, well managed, and open to concerns raised by
staff.'" Campbell I, 245 Or App at 577 n 3 (quoting audit report).
4
1 ineligible for unemployment benefits. In March 2010, claimant sought review by the
2 EAB, which affirmed the ALJ's decision.
3 The EAB's original order--like the one currently on review--was based on
4 the interplay between ORS 657.176(2)(c) and OAR 471-030-0038(4). Under ORS
5 657.176(2)(c), an individual who leaves work "without good cause" is disqualified from
6 receiving unemployment insurance benefits. The administrative rule, OAR 471-030-
7 0038(4), clarifies that "good cause" to resign exists where "a reasonable and prudent
8 person of normal sensitivity, exercising ordinary common sense, would leave work" and
9 the reason for resigning is "of such gravity that the individual has no reasonable
10 alternative but to leave work." (Emphasis added.) The claimant "has the burden of
11 proving good cause by a preponderance of the evidence." Kercher v. Employment Dept.,
12 250 Or App 409, 411, 280 P3d 1040 (2012). In this case, therefore, the EAB's evaluation
13 of claimant's request for unemployment benefits turned on whether she proved that she
14 had no reasonable alternative to leaving WESD on December 1, 2009.
15 In its 2010 order, the EAB observed that claimant's working conditions
16 "were not ideal[,]" and it quoted from the Secretary of State's audit report, which
17 described financial problems at WESD. Nonetheless, the EAB decided that claimant had
18 left work without good cause because, although claimant had held a subordinate position
19 and had been expected to accept direction from her superiors, "no one from WESD told
20 claimant she would be discharged or asked to resign" if she did not follow instructions.
21 The crux of the EAB's reasoning was that even "assuming, arguendo, [that WESD's]
5
1 improper financial practices * * * continued" in late 2009, claimant "had the option to
2 continue working and, if asked to do anything improper, refuse." (Emphasis added.)
3 On review, we held that the EAB's decision did not follow from its factual
4 findings because those findings did not support a conclusion that, if asked to continue
5 facilitating financial improprieties, claimant reasonably could have refused. Campbell I,
6 245 Or App at 581. That is, we rejected the EAB's reasoning that, even if claimant were
7 asked to commit improprieties, her purported ability to refuse to follow her superiors'
8 instructions constituted a reasonable alternative to leaving work.
9 On remand for reconsideration, the EAB affirmed the ALJ's order for a
10 second time, again deciding that claimant had voluntarily left work without good cause
11 and was, therefore, ineligible for unemployment benefits. However, the EAB's second
12 analysis did not hinge--as had the analysis in its first order--on whether claimant had the
13 option of refusing to facilitate any fiscal mismanagement. Instead, the order on
14 reconsideration focused on a factual question that we did not address in Campbell I:
15 whether claimant actually would have been expected to commit "improper" acts after
16 December 1, 2009 (the day she resigned).
17 On that point, the EAB made findings that undercut claimant's assertion
18 that she had no reasonable alternative to leaving work. Most directly, the EAB found
19 that, "if anyone at WESD was 'doing * * * improper things' by December 1, 2009, it was
20 not claimant." (Emphasis added.) That finding was echoed in the EAB's determination
21 that claimant had not proved that she would have been required to perform any improper
6
tasks after December 1 1. The EAB acknowledged claimant's testimony that "'the illegal
2 piece' that was 'probably still going on,' 'was the hiring of people on contracts'" that were
3 being prepared and approved "in a manner inconsistent with 'IRS rules and policies.'"
4 However, the board noted, claimant did not refute testimony given by the WESD's new
5 human resources director, who stated that, as of November 1, 2009, the contracting
6 practices that previously might have alarmed the IRS were "not continuing." Moreover,
7 the board explained that, although there was evidence that claimant had been asked to
8 participate in improper practices during April and May 2009,
9 "[b]y November 2009, public scrutiny of the improprieties that concerned
10 claimant was elevated, audits and investigations were well underway,
11 necessary reforms were being planned and implemented, with claimant
12 even being asked to 'take a lead' in their execution."
13 The EAB thus determined that, "[a]t most, claimant's evidence establishes
14 that, at the time she resigned, all needed reforms were not completed, and she disagreed
15 strongly with management about the timing and pace of those reforms." The board then
16 decided that claimant's disagreement with the pace of change did not result in her having
17 "no alternative but to leave work," judged by an objective standard. "Put another way,"
18 the board explained,
19 "a reasonable and prudent Director of Financial Services, of normal
20 sensitivity, exercising ordinary common sense in claimant's circumstances,
21 would have continued her employment past December 1, 2009, at least
until she found employment elsewhere that was more to her liking.[3] 22
3 We are troubled by the EAB's continued reference to the fact that claimant did not
obtain other employment before she resigned from WESD. As we have noted repeatedly-
-including in our opinion in Campbell I--an employee is not "required to seek other work
before resigning in order to establish 'good cause' under the rule[.]" 245 Or App at 581 n
7
1 Accordingly, claimant did not have 'good cause' to quit work when she did,
2 and is disqualified from receiving unemployment insurance benefits * * *."
3 Claimant's petition for judicial review challenges that determination.
4 Stated broadly, claimant makes two arguments on review: (1) that the
5 EAB's determination that she did not have good cause for leaving work lacks substantial
6 evidence and reason; and (2) that the EAB's decision is impermissibly inconsistent with
7 Campbell I. We disagree with both of those contentions.
8 We start with claimant's second argument, in which she asserts that
9 Campbell I held that, "based upon the facts in the record, [claimant] established 'good
10 cause' to resign." According to claimant, Campbell I "established the law of this case" on
11 that point, and the EAB committed legal error when it "fail[ed] to follow that decision."
12 As an initial matter, we disagree with claimant's characterization of
13 Campbell I. As explained above, in that case we held that the EAB's decision that
14 claimant could simply refuse to undertake any improper tasks that she was asked to
15 perform did not follow from its factual findings that she was in a "subordinate position"
16 and therefore was "expected" to follow instructions. 245 Or App at 581. As a result, we
17 decided that the EAB's decision lacked substantial reason. Id. But our determination that
5. To the contrary, the theory that a job search is a prerequisite to establishing "good
cause" for resigning has been "squarely rejected." Id. Notwithstanding the EAB's
reference to claimant having not "found employment elsewhere," reading the order on
reconsideration as a whole, we conclude that the EAB did not base its "no good cause"
determination on any absence of a job search but rather (as we discuss later in this
opinion) on its finding that claimant no longer was being required to engage in
improprieties by the time she resigned.
8
1 the EAB's reasoning did not support its conclusion that claimant lacked "good cause" for
2 resigning is not logically equivalent to an affirmative holding that claimant did establish
3 "good cause" for leaving her job. We held only the former in Campbell I, not the latter.
4 We also disagree with claimant's assertion that, on reconsideration, the
5 EAB "fail[ed] to rely on any additional facts for its holding" and merely reiterated the
6 conclusion that we rejected in Campbell I. First, although the EAB's order on
7 reconsideration did adopt the factual findings from its initial order, the EAB also
8 emphasized additional findings, including that claimant did not prove that she was doing
9 any "improper things" by December 1, 2009, or that she would be required to do any
10 improper things after that date. Those findings are supported by the testimony of
11 WESD's director of human resources, who indicated that claimant would not have been
12 asked to do anything improper after the beginning of November 2009. Thus, claimant's
13 analysis fails to the extent that it is premised on a contention that the order on
14 reconsideration is based on the same factual findings as was the original order.
15 Moreover, the order on reconsideration is based on a different analysis than
16 the one we rejected when the original order was before us on judicial review. In Campell
17 I, we focused on the EAB's flawed reasoning, viz., its determination that claimant
18 reasonably could have refused to obey any directions to commit financial improprieties.
19 Notably, neither our opinion in Campbell I nor the EAB's original order rested on any
20 decision about whether, in fact, claimant would have been asked to continue performing
21 improper acts after December 1, 2009. To the contrary, both decisions assumed,
9
1 arguendo, that WESD would have made such requests; the dispute was only over what
2 consequences followed from that assumed fact. See, e.g., Campbell I, 245 Or App at
3 580-81 (rejecting the EAB's conclusion that "claimant had the option to continue working
4 and, if asked to do anything improper, refuse" (emphasis added)). In its order on
5 reconsideration, the EAB addressed the underlying factual question, and it explicitly
6 found that claimant would not have been required to commit any improprieties after
7 December 1. Because the board's decision rests on facts and reasoning that we did not
8 address (and had no reason to address) in Campbell I, no "law of the case" principle
9 barred the board from analyzing claimant's situation the way it did on reconsideration.
10 The remaining question is whether the EAB's order on reconsideration is
11 supported by substantial evidence and comports with substantial reason. In that regard,
12 claimant's primary contention is that the EAB "failed to consider evidence of continued
13 misconduct[.]" But the order on reconsideration shows that the board did consider such
14 evidence, including claimant's own testimony. It apparently chose, however, to give
15 more weight to different evidence in the record, including the testimony of WESD's
16 human resources director, who stated that the contracting practices to which claimant had
17 particularly objected had ceased by November 2009. The EAB also relied on evidence
18 that major changes were underway at that point, and that claimant had been asked to take
19 a lead in the execution of necessary reforms. That evidence adequately supports the
20 EAB's determination that claimant was not being asked to do anything improper by the
21 time she resigned.
10
1 Claimant also asserts that the EAB "disregarded the evidence that
2 [claimant] was suffering retaliation and that she had exhausted her avenues of
3 complaining about [WESD's] misconduct." We find no indication in the order on
4 reconsideration that the EAB disregarded the evidence to which claimant points, i.e., her
5 removal from management e-mail lists, changes to some of her job duties, and changes to
6 certain modes of communication among claimant and her managers. To the contrary, the
7 EAB noted those circumstances in the findings included in its initial order, which it
8 adopted in the order on reconsideration. The EAB simply determined that those
9 circumstances did not create a situation in which "a reasonable and prudent Director of
10 Financial Services, of normal sensitivity, exercising ordinary common sense in claimant's
11 circumstances" would have "no alternative but to leave work." Claimant has not
12 identified any flaw either in that ultimate determination or in the analysis leading to it.
13 In the end, claimant asks us to substitute our judgment for the EAB's on the
14 determinative factual question of whether claimant "would be 'forced to continue doing *
15 * * improper things.'" But our role is not to determine whether we would have reached
16 the same result as the EAB if we were acting as fact finders. Rather, our review of an
17 administrative agency's decision is limited to determining whether substantial evidence
18 and reason support the agency's determination and whether the agency applied the law
19 correctly. See Kercher, 250 Or App at 412 ("[o]ur role is not to substitute our judgment
20 for that of the [EAB]" on the question of whether a claimant left work without good
21 cause, "but rather to determine if the findings of fact are supported by substantial
11
1 evidence"). Applying that standard of review, we find no basis for disturbing the EAB's
2 order on reconsideration.

Outcome: 3 Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: