Public Utility Commission v. Tillotson

150 P.3d 1083, 210 Or. App. 433, 2007 Ore. App. LEXIS 4
CourtCourt of Appeals of Oregon
DecidedJanuary 3, 2007
Docket05-AB-1620; A130712
StatusPublished
Cited by1 cases

This text of 150 P.3d 1083 (Public Utility Commission v. Tillotson) 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
Public Utility Commission v. Tillotson, 150 P.3d 1083, 210 Or. App. 433, 2007 Ore. App. LEXIS 4 (Or. Ct. App. 2007).

Opinion

LINDER, J. pro tempore

Employer, the Public Utilities Commission, seeks judicial review of an Employment Appeals Board decision awarding claimant unemployment benefits for a 30-day period during which employer had suspended claimant without pay for disciplinary reasons. The board concluded that the acts that resulted in claimant’s suspension constituted an isolated instance of poor judgment, not misconduct. We agree with employer that the board erred in that determination. We therefore reverse and remand.

We take the following facts from the board’s findings of fact, which employer does not challenge. Claimant worked as a compliance specialist in employer’s consumer services section. Her primary job duties included investigating complaints lodged with employer and writing reports about those investigations. Claimant’s supervisor, after becoming dissatisfied with claimant’s writing skills, specifically and repeatedly directed her to improve her spelling, punctuation, and grammar. Claimant believed her writing skills were adequate and repeatedly told her supervisor as much. On July 1, 2005, when claimant’s writing skills had not improved to meet her supervisor’s expectations, her supervisor gave her a final letter of warning and identified specific improvement goals that she was required to meet by September 30 and December 31, 2005. Claimant believed that her supervisor was being abusive and harassing in making those demands.

On August 3, 2005, claimant’s supervisor asked claimant to meet with him and his superior, the administrator of the central services division, at 1:30 p.m. to discuss three specific cases that claimant had worked on. At 1:15 p.m., claimant told the administrator — not her supervisor — that she was “tired of being harassed” and would not attend the meeting. She said that, if her supervisor insisted on meeting with her, the meeting should be scheduled with claimant’s lawyer.

Claimant’s supervisor then gave claimant a second chance to attend the meeting, while also placing claimant on notice of the consequences of her refusal. Specifically, at [436]*436about 1:55 p.m., claimant’s supervisor gave claimant a written reprimand for failing to attend the 1:30 p.m. meeting. The reprimand directed claimant to attend a meeting at 2:00 p.m. and stated that her failure to meet to discuss work-related issues would result in further discipline, up to and including dismissal. The reprimand had a place for her to sign to signify that she had read it and discussed it with her supervisor. Claimant refused to sign it, again saying that she would not do so without first discussing it with her attorney. Claimant also told her supervisor that she would not attend the 2:00 p.m. meeting without her attorney. The supervisor responded by again directing claimant to attend the meeting.

Claimant did not attend the 2:00 p.m. meeting. She did not attempt to call her attorney, either, until after 3:00 p.m. At 4:00 p.m., claimant’s supervisor suspended claimant with pay through August 5 and without pay from August 8 through September 8,2005. The ground for the suspension was claimant’s repeated refusals to obey a management directive to meet with her supervisor.

Claimant applied to receive unemployment benefits for the 30-day period that she was suspended without pay. The Employment Department administratively granted claimant’s request for benefits after determining that her conduct on August 3, 2005, amounted to an isolated instance of poor judgment.1 Employer appealed the department’s decision. After a contested case hearing, the ALJ concluded that “[claimant] willfully violated a standard of behavior the employer had a right to expect and willfully disregarded its interest by refusing to meet with management as directed.” The ALJ further concluded that “[claimant’s] violation and disregard were not an isolated instance of poor judgment. They were repeated and frequent. * * * Misconduct has been [437]*437established.” As a result, the ALJ reversed the decision of the department and denied claimant’s request for benefits.

Claimant appealed the ALJ’s decision to the board. The board reversed the ALJ’s decision and concluded that, although “[c]laimant’s conduct was a willful violation of the employer’s reasonable behavioral expectations [,] * * * [her] conduct can be excused as an isolated instance of poor judgment.” The board acknowledged that claimant’s conduct consisted of “three separate acts” — i.e., twice refusing to attend the meeting, and refusing to sign the written reprimand. The board further determined, however, that those separate acts were “connected in subject matter and in proximity.” Citing Perez v. Employment Dept., 164 Or App 356, 366, 992 P2d 460 (1999), the board reasoned that “[m]ultiple acts may still be considered an isolated incident, if when considered together, they constitute a single occurrence in the employment relationship.” Consequently, the board concluded that claimant’s multiple willful violations of employer’s reasonable behavioral expectations amounted to an isolated instance of poor judgment, not misconduct that disqualified claimant from benefits.

On judicial review in this court, employer argues that the board erred in so concluding. Employer’s principal contention is that the board misapplied the pertinent administrative rule defining what constitutes an isolated instance of poor judgment and, in particular, that the board did not follow the 2004 amendments to that rule. As we explain in greater detail below, we agree.

We begin our discussion with an overview of the applicable statutory and administrative framework. Under ORS 657.176(2)(b), an individual who has been “suspended from work for misconduct connected with work” is disqualified from the receipt of unemployment insurance benefits. “Misconduct connected with work” is not defined by statute. Instead, the term is a delegative one that the Employment Department has policy-making authority to interpret and refine by rule. Steele v. Employment Department, 143 Or App 105, 109, 923 P2d 1252 (1996), aff'd, 328 Or 292, 974 P2d 207 (1999).

[438]*438As defined by the applicable administrative rule, misconduct is “[a]n act or series of actions that amount to a willful or wantonly negligent[2] disregard of an employer’s interest!.]” OAR 471-030-0038(3)(a). The rule further specifies certain acts, such as good faith errors and unavoidable accidents, that are excluded from the scope of what qualifies as misconduct. OAR 471-030-0038(3)(b). Among those exclusions is conduct that amounts to “an isolated instance of poor judgment.” Id.

Until 2004, the rule did not further define or describe what qualifies as an “isolated instance of poor judgment.” Cases involving the term, such as Perez, frequently required our court to determine its meaning in specific factual contexts. In doing so, we sometimes have resolved the cases before us by comparing and contrasting the fact pattern in the case before us to those presented in prior cases. In Perez, for example, we reviewed several cases and distilled from them a conclusion that “our ‘isolated instance of poor judgment’ analysis focuses on whether the incident was ‘a single occurrence in the employment relationship,’ and not whether the incident involved more than one component ‘act’ by the employee.” 164 Or App at 366 (citations omitted; emphasis added).

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Bluebook (online)
150 P.3d 1083, 210 Or. App. 433, 2007 Ore. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-utility-commission-v-tillotson-orctapp-2007.