Constantine v. Employment Department

117 P.3d 279, 200 Or. App. 677, 2005 Ore. App. LEXIS 902
Court of Appeals of Oregon·Decided July 27, 2005·No. 03-AB-2358; A123474·Published·Cited by 2 cases

Opinion

ARMSTRONG, J.

Claimant seeks review of an order of the Employment Appeals Board denying unemployment benefits. Claimant assigns error to the board’s conclusion that she voluntarily left work before pursuing all reasonable alternatives. We review the board’s conclusion for substantial evidence, substantial reason, and errors of law, ORS 183.482(8), and reverse and remand.

We state the pertinent facts found by the board. Claimant worked for Money Tree Software (employer) in a technical support position from June 16, 1997 to June 13, 2003. She married in 2001. Her husband physically abused her. At various times, he hit her, pushed her off of a bed, pushed her into walls, pulled on her arms, and threw things at her. Claimant’s husband also went to claimant’s workplace and argued with her on several occasions.

Claimant did not contact the police or seek medical attention related to her husband’s abuse until May 2003. At that time, claimant’s husband began drinking more alcohol than he had before. He hit claimant more often. On the evening of May 31, 2003, claimant’s husband pushed claimant around and shoved her against a wall, bruising her chest and one of her arms. That night, claimant and her husband agreed to dissolve their marriage. Claimant’s husband subsequently moved out of the house, and claimant changed the locks.

Claimant decided that she would be more secure if she moved out of Albany, where she and husband lived, to another city. On June 2, 2003, claimant gave employer two weeks notice that she would be leaving work to move to another city because her husband had been abusing her and she was concerned for her own safety. Claimant’s supervisor knew from prior conversations with claimant that claimant’s husband had been abusing her. Claimant did not talk to her employer about possible alternatives to leaving her job. Her employer did not have other locations to which claimant could have transferred. Claimant did not have the option of taking a leave of absence.

[680] On June 3, claimant sought and obtained a restraining order against her husband. The order prohibited claimant’s husband from contacting or attempting to contact her in person or by telephone or mail. The order also prohibited her husband from going to his son’s daycare center. When claimant’s husband went to collect his belongings from his and claimant’s residence, police officers accompanied him.

After she obtained the restraining order, claimant believed that her husband was very angry with her. She was uncertain about what he would do. He began calling her at work. Claimant talked to him when he called, despite the restraining order, because she was afraid of what he would do if she refused. When he called, he asked claimant about her plans and mocked and otherwise harassed her. Claimant did not report her husband’s calls to the police or a court because she was afraid that doing so would make him angrier. Claimant left work on June 13 and moved to another city.

Claimant then sought unemployment benefits. The board concluded that “claimant voluntarily left work without good cause” and was therefore ineligible to receive unemployment compensation under ORS 657.176(2)(c). In reaching that conclusion, the board considered ORS 657.176(12), which provides:

“(a) As used in this subsection, ‘domestic violence’ means the physical injury, sexual abuse or forced imprisonment, or threat thereof, of a person by another who is related by blood or marriage or has a significant relationship with the other person at the present, or who has been related or has had a significant relationship at some time in the past, to the extent that the person’s health, safety or welfare is harmed or threatened thereby.
“(b) An individual may not be disqualified from receiving benefits under subsection (2)(c), (d) or (e) of this section or be considered unavailable for purposes of ORS 657.155 if:
“(A) The individual is a victim of domestic violence;
“(B) The individual’s health, safety or welfare is endangered at a current workplace, or would be endangered at an available workplace, by a related person referred to in paragraph (a) of this subsection; and
[681] “(C) The individual acts as a reasonable and prudent person of ordinary sensitivities and has pursued all reasonable alternatives before voluntarily leaving work. Reasonable alternatives include, but are not limited to, actions such as seeking a restraining order, relocating to a secure area and seeking reasonable accommodations from the employer such as a transfer within the company.”

The board concluded that, under ORS 657.176(12)(b), claimant was a victim of domestic violence and that she was endangered at her workplace. However, the board also concluded that claimant was disqualified from receiving unemployment benefits because, contrary to ORS 657.176(12)(b)(C), she had not pursued “all reasonable alternatives before voluntarily leaving work.” The board reasoned:

“ORS 657.176(12) specifies that an individual who is a victim of domestic violence must pursue all reasonable alternatives before leaving work. In the present matter, claimant had the reasonable alternative of obtaining a restraining order and waiting to see if her husband would honor it, before giving the employer notice that she would be leaving work in two weeks.
“Claimant was able to obtain a restraining order against her husband the day after she gave her resignation notice. If claimant’s husband called her at work despite the restraining order, she reasonably could have reported his violations of the restraining order. In the absence of any futile attempt by claimant to obtain a restraining order and have it enforced, we are persuaded that the court would have issued and enforced the order.

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Constantine v. Employment Department, 117 P.3d 279, 200 Or. App. 677, 2005 Ore. App. LEXIS 902 (Or. Ct. App. 2005).

117 P.3d 279 (Constantine v. Employment Department) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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