Johnson v. Employment Department

67 P.3d 984, 187 Or. App. 441, 2003 Ore. App. LEXIS 577
CourtCourt of Appeals of Oregon
DecidedMay 1, 2003
Docket01-AB-1401; A115897
StatusPublished
Cited by16 cases

This text of 67 P.3d 984 (Johnson 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
Johnson v. Employment Department, 67 P.3d 984, 187 Or. App. 441, 2003 Ore. App. LEXIS 577 (Or. Ct. App. 2003).

Opinions

[443]*443KISTLER, J.

The Employment Appeals Board (board) held that claimant was disqualified from receiving unemployment benefits because he intentionally submitted a false work report. On review, claimant does not dispute that he submitted a false report. Rather, he argues that doing so should not disqualify him from receiving benefits. We affirm.

Claimant worked for Excell Marketing, a trading card distributor, as a territory account manager, and his position required him to service various retail outlets throughout Oregon and southwest Washington. Employer required claimant to submit, at the beginning of each week, an itinerary of the work that he expected to accomplish. At the end of each week, claimant was required to file a “call report” that reflected the work that he had actually done that week. Claimant had the discretion to set his own itinerary each week, although he was generally expected to visit four to five stores each day. Employer expected that most of those visits would take place during the daytime work hours, although occasional evening and weekend visits were permitted. Employer also expected, as stated in the employee handbook, that employees would not falsify company records, that they would keep accurate time records, and that they would not engage in dishonest conduct.

Claimant’s itinerary for February 26, 2001 through March 2, 2001, the time period that is relevant in this case, showed that he had an approved vacation day on Monday, February 26, but that he expected to make calls in southern Oregon and Portland the rest of the week. Claimant spent the weekend in Los Angeles and intended to leave for Oregon on Monday, February 26, to resume his job duties the next day. He was not feeling well, however, and delayed his departure. Claimant did not arrive in Oregon until Wednesday evening. He made one sales call that evening in Grants Pass at approximately 10:00 p.m. and then drove to Portland to resume work there Thursday morning.

When claimant submitted his call report for the week of February 26 through March 2, he reported that he had visited stores in Grants Pass, Roseburg, and Eugene on [444]*444Tuesday, February 27, a day that he was in California. He also reported that he had visited seven stores in Portland on Wednesday, February 28, when in fact he was en route from California to Oregon that day and made only one call that night. Claimant did, however, perform work on evenings and on Saturday in order to complete the calls that he reported making on February 27 and 28.

Several months later, employer matched claimant’s call report against his gas credit card receipts. Employer discovered that the locations shown on the credit card receipts conflicted with the work locations that claimant had reported visiting. Employer discharged claimant for falsifying his weekly call report.

Claimant applied for unemployment benefits. Relying on OAR 471-030-0038, the Employment Department (department) denied claimant benefits. It reasoned that he was “discharged for misconduct connected with [his] work” and that his “falsification of the report about [his] work was a willful disregard of the employer’s interest.” Claimant appealed, and an administrative law judge (AU) upheld the denial. Claimant appealed to the board, which also upheld the denial. The board reasoned:

“The employer discharged claimant for falsifying his weekly call report * * *. The employer reasonably expected claimant to be honest in documents he submitted to the employer for work-related purposes. We are persuaded claimant understood that expectation as a matter of common sense and because he admitted that he knew the employer expected accurate weekly call reports.
“* * * When claimant represented to the employer that he had worked in southern Oregon on February 27, 2001, he willfully violated the employer’s standards.
“Claimant also willfully violated the employer’s standards when he represented that he performed work in the Portland metropolitan area on February 28. * * *
“Claimant’s conduct was too serious to constitute an isolated instance of poor judgment. Claimant represented he performed work he did not perform for the employer on the [445]*445days he asserted. Claimant worked without ongoing supervision. The employer needed to have assurances that claimant was honest when not under direct supervision. Claimant’s conduct demonstrated that the employer could not rely on his integrity.”

An employee who “[h]as been discharged for misconduct connected with work” is disqualified from receiving unemployment benefits. ORS 657.176(2)(a). The department has defined the term “misconduct” by rule as

“willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee * * *. An act or series of actions that amount to a willful or wantonly negligent disregard of an employer’s interest is misconduct.”

OAR 471-030-0038(3)(a). However, the department has also provided that

“[ijsolated 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.”

OAR 471-030-0038(3)(b).

On review, claimant raises two assignments of error. In his first assignment of error, claimant contends that the board’s initial conclusion — that he willfully violated standards of behavior that employer had the right to expect of him — is not supported by substantial evidence. See OAR 471-030-0038(3)(a). Claimant does not dispute that he represented, on two different days on his call report, that he was in a particular location performing his work duties when, in fact, he was neither at that location nor performing his duties as he reported. He argues, however, that employer failed to prove that submitting a false work report violated company policy. That argument fails. There was evidence before the board that employer had a policy that prohibited dishonesty as well as filing inaccurate company records — a prohibition that the board reasonably could find encompassed claimant’s actions.1

[446]*446Claimant argues alternatively that, because he actually performed the work at a later date and time, his actions did not constitute a willful violation of his employer’s standards. The information, however, that claimant put on his call report was false and is not made any less so by the fact that he eventually performed the work. Substantial evidence supports the board’s finding that claimant willfully violated his employer’s policy against submitting false work reports.

In his second assignment of error, claimant contends that, even if submitting a false report were a willful violation of his employer’s standards, it was only an “isolated instanc[e] of poor judgment” and thus not misconduct that should disqualify him from receiving unemployment benefits. As the parties frame the issue on review, it turns on the proper interpretation of the department’s rule defining “misconduct.” Before turning to that question, we first identify “the responsible agency whose order is being reviewed” and then address our standard of review.

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Cite This Page — Counsel Stack

Bluebook (online)
67 P.3d 984, 187 Or. App. 441, 2003 Ore. App. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-employment-department-orctapp-2003.