Franklin v. Emp't Dep't
| Decision Date | 30 January 2013 |
| Docket Number | 11AB0569,A148253. |
| Citation | 294 P.3d 554,254 Or.App. 656 |
| Parties | Suzanne G. FRANKLIN, Petitioner, v. EMPLOYMENT DEPARTMENT and Milwaukie Convalescent Hospital, Inc., Respondents. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Thomas K. Doyle filed the briefs for petitioner.
Peter D. Hawkes and Lane Powell, PC, filed the brief for respondent Milwaukie Convalescent Hospital, Inc.
Denise G. Fjordbeck, Attorney–in–Charge, Civil/Administrative Appeals, waived appearance for respondent Employment Department.
Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge Pro Tempore.
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 P.3d 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 P.3d 722 (2010) (); Babcock v. Employment Div., 25 Or.App. 661, 664, 550 P.2d 1233 (1976) .
Pursuant to authority delegated to it in ORS 657.610(4), the department has defined “misconduct” as follows:
“(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,” seeORS 678.111(1)(f); OAR 851–045–0070, and agreed to a 60–day suspension 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(1)(f).
The order explained, 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:
(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. Claimant seeks review of the EAB's order.
Claimant argues that the EAB's interpretation of the department's definition of “misconduct” is erroneous as a matter of law because claimant's conduct in entering into a stipulated agreement with the Board of Nursing “[cannot] be divorced from” the medication error that caused the Board of Nursing to take disciplinary action against claimant. That is, claimant asserts that, in evaluating whether a claimant's conduct with respect to the loss of a license is “misconduct,” the EAB may consider only the conduct that underlies the loss of license, not the claimant's resolution of a resulting disciplinary proceeding. In order to evaluate claimant's argument, we must interpret OAR 471–030–0038(3)(c) to ascertain whether employer proved that claimant's conduct amounted to a “failure to maintain a license.” 3
Before beginning our analysis, however, we turn to a question regarding our standard of review and the proper disposition of this case. Generally, we use “the same interpretive framework with respect to administrative rules that we use with respect to statutes.” Gafur v. Legacy Good Samaritan Hospital, 344 Or. 525, 532, 185 P.3d 446 (2008). That is, “[w]e begin by considering the text of the rule itself, together with its context, which includes other provisions of the same rule, other related rules, the statute pursuant to which the rule was created, and other related statutes.” Id. at 533, 185 P.3d 446.
When interpreting an administrative rule, we defer to any “plausible interpretation” by the agency that promulgated the rule. Don't Waste Oregon Com. v. Energy Facility Siting Council, 320 Or. 132, 142, 881 P.2d 119 (1994); Johnson v. Employment Dept., 189 Or.App. 243, 248, 74 P.3d 1159,adh'd to as modified on recons,191 Or.App. 222, 81 P.3d 730 (2003). A “plausible interpretation” is one that is not “inconsistent with the wording of the rule itself, or with the rule's context, or with any other source of law.” Don't Waste Oregon Com., 320 Or. at 142, 881 P.2d 119.
Determination of whether a particular act constitutes “misconduct” under OAR 471–030–0038(3)(c) requires an interpretation of that rule. Ring v. Employment Dept., 205 Or.App. 532, 536, 134 P.3d 1096 (2006); Jordan v. Employment Dept., 195 Or.App. 404, 409, 97 P.3d 1273 (2004); see also McPherson v. Employment Division, 285 Or. 541, 550, 591 P.2d 1381 (1979). However, the department, rather than the EAB, is the agency to which we defer: “[T]he ALJ and the [EAB] do not have the delegated authority to articulatepolicy through the interpretation of rules; they are reviewing bodies, not policy-making ones.” Ring, 205 Or.App. at 536, 134 P.3d 1096. The consequence of that arrangement is that we defer to the department's conclusion about whether particular conduct constitutes misconduct under the rule, but we do not defer to the EAB's...
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