Langer v. Employment Div.

• Jurisdiction: Oregon
• Citation: Langer v. Employment Div., 826 P.2d 6, 111 Or.App. 154 (Or. App. 1992)
• Docket Number: AB-516
• Parties: Jindrich H. LANGER, Petitioner, v. EMPLOYMENT DIVISION and Benton County, Respondents. 90-; CA A64721.
• Court: Oregon Court of Appeals
• Decision Date: 12 February 1992

Page 6

826 P.2d 6

111 Or.App. 154

Jindrich H. LANGER, Petitioner, v.EMPLOYMENT DIVISION and Benton County, Respondents.

90-AB-516; CA A64721.

Court of Appeals of Oregon.

Submitted on Record and Briefs Jan. 17, 1991.

Decided Feb. 12, 1992.

Jindrich H. Langer, pro se.

Jerome Lidz, Asst. Atty. Gen., Salem, waived appearance for respondent Employment Div.

Candace A. Haines, Asst. County Counsel, Corvallis, filed the brief for respondentBenton County.

Before RICHARDSON, P.J., JOSEPH, C.J., ^* and DEITS, J JOSEPH, Chief Judge.

Claimant seeks review of an Employment Appeals Board(EAB) order denying him unemployment benefits.EAB concluded that he had been discharged for misconduct connected with his work.ORS 657.176(2)(a).He makes a variety of challenges to the Board's findings, its reasoning and its conclusions.

EAB found:

"(1)Claimant began work for Benton County as an assistant district attorney on December 17, 1987.(2) Starting with the first of the year, 1989, claimant began expending all of his accumulated sick leave, personal leave time and vacation due to absences.By mid-April, claimant began accumulating unauthorized absences.(3)Claimant had been very depressed and withdrawn.In mid-April he requested a leave without pay because of what he described as stress.The district attorney gave claimant three weeks leave without pay.Claimant then requested and received a one week extension.(4)Claimant returned on May 16, 1989, and the district attorney noted claimant's performance and mental health seem [sic ] improved.(5) As claimant progressed into the summer months, the district attorney noted that claimant was acting 'hyperactive' and exhibiting erratic behavior.The district attorney found claimant to be excitable.Claimant talked incessantly, interrupted and behaved in such a manner that the district attorney believed claimant suffered from a manic-depressive illness.(6) In July, 1989, claimant exceeded his authority to divert an assault case in violation of the district attorney's rule (Exh. 3).(7)Claimant believed he acted correctly in violating the rule to divert the assault case.He did not agree with the district attorney's rule.(8) The district attorney had a policy which allowed two members of the local press access to criminal files.(9)Claimant disagreed with this policy.(10) In July, when the district attorney and his chief deputy were away from the office on vacation, claimant restricted access of the press in violation of the policy.The violation of the district attorney's policy caused disruption in the office.(11) On July 31, 1989, the district attorney and the chief deputy returned from vacation.They received complaints from the office staff about claimant's erratic behavior during their absence.(12) On August 7, the district attorney and the chief deputy met with claimant to discuss their concerns and the concerns of the staff about claimant's behavior.During this meeting, claimant objected to the policy of press access to criminal files.(13) On August 9, 1989, claimant removed some notes, which had been made by the chief deputy, from the desk of the district attorney.The notes had been made during a discussion between the district attorney and the chief deputy about claimant's erratic behavior.(14)Claimant photocopied the notes and returned them to the desk of the district attorney.(15)Benton County has a personnel policy which specifically prohibits anyone but a department head or other employee designated by the Board of Commissioners to look in or on anyone's desk (except their own).(16) On August 10, 1989, claimant telephoned the chief deputy demanding to know who had complained about him and suggesting that two employees be fired.Claimant told the chief deputy that the district attorney was violating the law by allowing the press to have access to files and repeatedly denied that he was paranoid, even though the chief deputy did not suggest paranoia.(17) On August 14, the district attorney and the chief deputy met with claimant.At that meeting, the district attorney ordered claimant to report to a doctor (chosen by the district attorney) for psychiatric examination to determine claimant's fitness to perform the duties as a deputy district attorney.The district attorney limited the examination to that reasonably necessary to evaluate claimant's performance.The examination would be completely paid for by the district attorney's office and a copy of the report would go to claimant.(18) At that meeting, claimant called other employees liars and backstabbers and told the district attorney and the chief deputy that they were violating the law and were stupid about allowing press access to criminal files.Claimant threatened to go to the Oregon State Bar and have the district attorney and the chief deputy suspended.He threatened to go to the news media and discuss all of the problems in the office.(19) The district attorney asked claimant how he became aware of the contents of the notes left on the district attorney's desk.Claimant refused to answer.(20) The district attorney suspended claimant with pay on August 14, pending a determination of claimant's fitness to continue working as a deputy district attorney.(21) The district attorney gave claimant a choice of reporting for a psychiatric examination at 9:00 a.m. on August 15 or 9:00 a.m. on August 16.(22) On August 16, claimant refused to report for the psychiatric examination and offered to be examined by a doctor from another county, chosen by claimant.(23) Sometime around August 16, the district attorney received a call from a defendant's attorney complaining that claimant had directly contacted a defendant prior to consulting with the defendant's attorney of record.The district attorney's rules prohibited such direct contact.The defendant told claimant that he was no longer represented by an attorney.(24) A due process hearing was held on September 22, 1989, to determine whether claimant should be terminated.(25) The district attorney discharged claimant effective October 2, 1989, for refusing the psychiatric examination and for violating the district attorney's established office policies (seeExh. 4)."

After discussing the statute involved, ORS 657.176(2)(a), and the administrative rule, OAR 471-30-038(3), EAB concluded:

"Claimant was absent between January and May 16, 1989, to the extent that he used all leave time and had to take four weeks of unpaid leave.Claimant had been very depressed and withdrawn and thought that stress caused problems which resulted in his absence.When claimant returned to work on May 16, 1989, he appeared to the district attorney to have improved.However, as time progressed, claimant became hyperactive and exhibited erratic behavior.The district attorney believed claimant suffered from a manic-depressive illness.We find that claimant's erratic behavior justified the district attorney's order for claimant to undergo psychiatric examination.The district attorney's office agreed to pay for the examination and see that the examination was limited to the question of claimant being able to continue to perform his work and that claimant would receive a copy of the report.Claimant refused to undergo the examination.Instead, he offered to be examined by a doctor from another county chosen by claimant.Since the district attorney's office would pay for the examination, the examination would be limited to the question of whether claimant could continue as a deputy district attorney and because claimant would be given a copy of the report, the district attorney was justified in insisting claimant be examined by a doctor chosen by the district attorney.In light of all the attendant circumstances, claimant's refusal to comply with the order of the district attorney constituted a deliberate...