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FILED: April 6, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JENNIFER L. DUBROW,

Petitioner,

v.

EMPLOYMENT DEPARTMENT
and OREGON PARKS & RECREATION DEPARTMENT,

Respondents.

Employment Appeals Board
09AB2634
A143488

Argued and submitted on September 02, 2010.

Kevin Keaney argued the cause and filed the brief for petitioner.

Tiffany Keast, Assistant Attorney General, argued the cause for respondents. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Judge.

WOLLHEIM, J.

Affirmed.

WOLLHEIM, J.

In this unemployment compensation case, the Employment Appeals Board (board) concluded that claimant was not entitled to unemployment benefits because she left work without good cause. Claimant challenges that determination on judicial review. We affirm because we conclude that the board's finding that claimant quit work to avoid discharge is supported by substantial evidence, and the board's conclusion that claimant voluntarily left work without good cause is supported by substantial reason. ORS 657.282; ORS 183.482(8).

The board found the following facts:

"(1) Claimant worked for [the] Oregon Parks & Recreation Department as a human resources analyst from July 10, 2006 to May 1, 2009.

"(2) In 2008, claimant underwent treatment for breast cancer. Claimant complained to supervisors about the behavior of her co-workers after she returned to work from medical leave, but the matter was not resolved. In December 2008, claimant filed a formal complaint with the department director, alleging discrimination and hostile working conditions. The employer investigated one of the incidents claimant reported, but was not able to confirm it. The employer notified claimant on December 31, 2008 that it did not intend to pursue her complaint.

"(3) From January 2, 2009 through March 29, 2009, claimant was absent from work on medical leave due to a concussion. While she was on leave, the employer imposed disciplinary actions for incidents that had occurred prior to and during the time she was stationed at home in December 2008. After claimant's attorney talked to the employer, the employer rescinded a demotion and economic sanctions, then reinstated them after it conducted a pre-disciplinary hearing. Claimant appealed to the Oregon Employment Relations Board and also filed an EEOC complaint with the Oregon Bureau of Labor and Industries.

"(4) Claimant returned to work part time on March 30, 2009. Her co-workers engaged in additional conduct that she considered to be harassing and hostile in nature, but claimant's manager did not take action. The manager assigned claimant duties that claimant considered to be retaliatory in nature. Claimant sent an email to her supervisor stating that she intended to address her concerns through legal channels. Her supervisor replied that claimant had engaged in insubordinate behavior by arguing about work assignments and other issues.

"(5) On April 6, 2009, claimant and her supervisor exchanged a series of contentious email messages. On April 7, the employer placed claimant on paid administrative leave 'pending an investigatory meeting and further disciplinary action.' * * * Claimant's supervisor ordered her to collect her things and leave the building immediately. On April 8, 2009, the employer sent claimant all personal items she had left in her work station. Claimant was certain that the employer intended to discharge her after the investigatory meeting.

"(6) Claimant underwent continuing treatment and monitoring for breast cancer. On April 10, 2009, claimant told her oncologist about her employment situation. Claimant's oncologist said that claimant needed to leave work if she could. Claimant was aware that stress could contribute to the recurrence of cancer. However, she did not resign from her job. She had not decided whether she wanted to attend the investigatory meeting.

"(7) The employer notified claimant that the investigatory meeting was scheduled for May 1, 2009. On May 1, 2009, claimant instructed her attorney to submit her written resignation, effective immediately."

In addition, the board found that "the timing of [claimant's] resignation indicated that she quit work when she did in order to avoid being discharged following the meeting"; and that claimant "failed to show that the possibility [that employer would terminate claimant's employment] was so serious she could not risk attending the meeting and responding to any charges against her, in order to retain her job pending the outcome of her legal actions." Accordingly, the board ordered claimant disqualified from receiving employment insurance benefits because she did not have good cause to voluntarily leave work.

On judicial review, claimant assigns error to the board's order denying unemployment benefits. Claimant concedes that she voluntarily left work. However, she contends that the board's finding that she left work to avoid discharge is not supported by substantial evidence; rather, claimant argues that she left work because the work environment had become so stressful that continuing to work for employer increased the risk that her breast cancer would recur. Furthermore, claimant argues that when she left work due to that risk, she did so for good cause.

We begin with an overview of the legal standards that apply to this case. When an individual voluntarily leaves work without good cause, the individual is disqualified from unemployment benefits. ORS 657.176(2)(c). Where, as here, claimant voluntarily left work, the issue is whether claimant had "good cause" for doing so. OAR 471-030-0038(4) provides:

"Good cause for voluntarily leaving work under ORS 657.176(2)(c) is such that a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, would leave work. For an individual with a permanent or long-term 'physical or mental impairment' (as defined at 29 CFR