Franklin v. Employment Department

294 P.3d 554, 254 Or. App. 656, 2013 WL 355584, 2013 Ore. App. LEXIS 114
CourtCourt of Appeals of Oregon
DecidedJanuary 30, 2013
Docket11AB0569; A148253
StatusPublished
Cited by4 cases

This text of 294 P.3d 554 (Franklin v. Employment Department) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Employment Department, 294 P.3d 554, 254 Or. App. 656, 2013 WL 355584, 2013 Ore. App. LEXIS 114 (Or. Ct. App. 2013).

Opinion

DUNCAN, J.

Claimant seeks review of a final order of the Employment Appeals Board (EAB) determining that she was discharged for “misconduct connected with work,” ORS 657.176(2)(a), and, therefore, that she is not eligible for unemployment benefits. The EAB concluded that an on-the-job error that claimant made, which gave rise to a disciplinary proceeding against her by the Oregon State Board of Nursing (Board of Nursing), was not misconduct. However, it reasoned that claimant’s negotiated resolution of that proceeding, in which she agreed to a temporary suspension of her nursing license, was misconduct. We review for substantial evidence, substantial reason, and errors of law, Freeman v. Employment Dept., 195 Or App 417, 421, 98 P3d 402 (2004), and conclude that the EAB erred in its interpretation of the Employment Department’s (department’s) rule defining misconduct. Consequently, we reverse and remand.

An unemployment claimant “shall be disqualified from the receipt of benefits” if the claimant “[h]as been discharged for misconduct connected with work.” ORS 657.176(2)(a). The employer bears the burden of showing that a claimant has been discharged for misconduct connected with work. McDowell v. Employment Dept., 348 Or 605, 610 n 2, 236 P3d 722 (2010) (“Long-standing Court of Appeals decisions hold that * * * an employer has the burden of proving that a discharge was for misconduct.”); Babcock v. Employment Div., 25 Or App 661, 664, 550 P2d 1233 (1976) (“The burden of proving claimant’s misconduct rests on the employer.” (Internal quotation marks omitted.)).

Pursuant to authority delegated to it in ORS 657.610(4), the department has defined “misconduct” as follows:

“(a) As used in ORS 657.176(2)(a) and (b) a willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee is misconduct. An act or series of actions that amount to a willful or wantonly negligent disregard of an employer’s interest is misconduct.
[658]*658“(b) Isolated instances of poor judgment, good faith errors, unavoidable accidents, absences due to illness or other physical or mental disabilities, or mere inefficiency resulting from lack of job skills or experience are not misconduct.
“(c) The willful or wantonly negligent failure to maintain a license, certification or other similar authority necessary to the performance of the occupation involved is misconduct, so long as such failure is reasonably attributable to the individual.”

OAR 471-030-0038(3) (emphasis added).

We take the facts, which are undisputed, from the EAB’s order and the record. Claimant is a registered nurse who worked for employer from July 28, 2009 to December 1, 2010. In December 2009, claimant was on probation with the Board of Nursing for conduct unrelated to this case. On December 4, 2009, claimant misread a handwritten patient chart and, as a result, oversaw administration of a 1.0 ml dose of methadone instead of the prescribed 0.1 ml.1

Another nurse, reading the same chart, made the same mistake a few days later. That nurse discovered both her mistake and claimant’s and reported the errors to employer. Employer suspended both nurses. Claimant filed for unemployment benefits for the period of her suspension, and, after a hearing, an administrative law judge (ALJ) concluded that claimant had not been suspended for misconduct because employer failed to prove that claimant’s conduct was willful or wantonly negligent, as required by OAR 471-030-0038(3)(a).

In keeping with the terms of claimant’s probation with the Board of Nursing, employer reported claimant’s mistake to the Board of Nursing. After receiving the report, the Board of Nursing initiated a disciplinary investigation of claimant. The result of that investigation was that on November 2, 2010, claimant and the Board of Nursing agreed to a stipulated order. Claimant acknowledged that her medication error, as alleged in the order, constituted “conduct derogatory to the standards of nursing,” see ORS 678.111(l)(f); OAR 851-045-0070, and agreed to a 60-day [659]*659suspension of her license and an extension of her probation.2 The order noted that a nurse’s “license may be revoked or suspended or the licensee may be placed on probation for a period specified by the Oregon State Board of Nursing and subject to such conditions as the Board may impose” for causes that include conduct derogatory to the standards of nursing. ORS 678.111(l)(f).

The order explained,“[claimant] wishes to cooperate with the Board in resolving the present disciplinary matter. Therefore, the [60-day suspension and extension of probation] will be proposed to the Board and is agreed to by [claimant].” It also provided, “[Claimant] understands that, by entering into this Stipulation, she waives the right to an administrative hearing under ORS 183.310 to 183.550.”

On the day that claimant’s license was suspended, employer terminated claimant’s employment. Claimant applied for unemployment benefits, and the department concluded that employer had discharged claimant for “misconduct,” ORS 657.176(2)(a), and, therefore, claimant was not eligible to receive unemployment benefits. Claimant requested an administrative hearing, and an ALJ affirmed the department’s decision. That ALJ’s conclusion rested on the premise that the conduct that gave rise to the stipulated order — the medication error that the first ALJ had concluded was not misconduct — was misconduct.

Claimant filed for review by the EAB. The EAB concluded that it was bound by the first ALJ’s determination that claimant’s medication error was not misconduct. Nevertheless, the EAB continued:

“[C]laimant and the ALJ overlook the fact that claimant knowingly and voluntarily entered into the Stipulation, in which she agreed to the suspension of her registered nurse license, and waived her right to an administrative hearing. Claimant knew that agreeing to the Stipulation would result in her license being suspended, effective December 1, 2010. Claimant’s decision not to request an administrative hearing demonstrated her indifference to the consequences [660]*660of her actions. Claimant’s failure to maintain her registered nurse license was at best wantonly negligent, and reasonably attributable to claimant.”

(Emphasis added.) As a result of its conclusion that claimant’s entry into the stipulated order with the Board of Nursing was misconduct, the EAB concluded that claimant was not eligible for unemployment benefits.

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Cite This Page — Counsel Stack

Bluebook (online)
294 P.3d 554, 254 Or. App. 656, 2013 WL 355584, 2013 Ore. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-employment-department-orctapp-2013.