S056569, Opinion — McDowell v. Employment Dept.

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# Argued and submitted September 14, 2009, decision of Court of Appeals reversed; order of Employment Appeals Board reversed, and case remanded to Employment Appeals Board for further proceedings August 5, 2010

Robert A. McDOWELL,
Petitioner on Review,
v.
EMPLOYMENT DEPARTMENT
and Klamath County School District,
Respondents on Review.
(Agency No. 07-AB-1130; CA A136061; SC S056569)
236 P3d 722

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606

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En Banc

On review from the Court of Appeals .*

Elizabeth A. Joffe, McKanna Bishop Joffe & Arms, LLP,
Portland argued the cause and filed the briefs for petitioner
on review.

Cecil A. Reniche-Smith, Assistant Attorney General,
Salem, argued the cause for respondent on review Employment
Department. With her on the brief were John R. Kroger,
Attorney General, and Jerome Lidz, Solicitor General.

No appearance for respondent on review Klamath County
School District.

Deborah G. Weston, Oregon Law Center, Portland, filed a
brief in support of the petition for review on behalf of amicus
curiae Oregon Law Center.

Barbara J. Diamond, Diamond Law, Portland, filed a brief
on the merits in support of petitioner on behalf of amici
curiae Oregon AFL-CIO, AFSCME Council 75, American
Federation of Teachers-Oregon, Clackamas County Peace
Officers' Association, Portland Fire Fighters' Association,
Oregon Education Association, and SEIU Local 503, OPEU.

LINDER, J.

The decision of the Court of Appeals is reversed. The order
of the Employment Appeals Board is reversed, and the case is
remanded to the Employment Appeals Board for further
proceedings.

\* Petition from Final Order of the Employment Appeals Board. 222 Or App
170, 193 P3d 989 (2008).

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## LINDER, J.

In this unemployment compensation case, the
Employment Appeals Board (the board) concluded that
claimant was not entitled to unemployment benefits because
he voluntarily left work without good cause. Claimant, on judi-
cial review of the board's order, challenged that determination;
the Court of Appeals affirmed. McDowell v. Employment
Dept., 222 Or App 170, 193 P3d 989 (2008). As explained
below, because we conclude that claimant voluntarily left
work with good cause, we reverse the Court of Appeals deci-
sion and remand to the board.

The facts, as pertinent to the issues before us, are
not challenged.1 We therefore describe the facts consistently
with those found by the board and the record that supports
the board's findings. See Meltebeke v. Bureau of Labor and
Industries, 322 Or 132, 134, 903 P2d 351 (1995) (where
agency's factual findings are not challenged, those findings
are the facts for purposes of judicial review).

Claimant worked for employer, Klamath County
School District, as a probationary first-year high school lan-
guage arts and drama teacher. Less than six months into his
job, claimant showed his senior English classes a 10-minute
clip depicting a dramatic monologue from the film "Glengarry
Glen Ross." The clip, which contained some profanity, was
intended as a lesson about language use and misuse. Show-
ing that film clip to the class violated employer's policy
requiring preapproval by the school principal before teachers
may show students films containing profanity. Employer,
however, had not advised claimant of that policy and the pol-
icy was not contained in employer's handbook.

As a result of claimant's action in showing the film
clip, employer placed claimant on administrative leave. On

1 In the Court of Appeals, claimant successfully challenged two of the board's
findings for lack of factual support in the record. Specifically, claimant asserted
that the board erred by factually finding: (1) that employer's film policy-the policy
that the employer believed claimant had violated-was contained in its employee
handbook; and (2) that the school principal, in addition to employer's personnel
director, recommended claimant's discharge. The court concluded that those find-
ings were not supported by substantial evidence. McDowell, 222 Or App at 175.
The Court of Appeals did not have to remand to the board for reconsideration, how-
ever, because neither finding was pivotal to the board's resolution of the issues.

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February 19, 2007, the personnel director for the district
informed claimant that he would be recommending claim-
ant's discharge at the upcoming school board meeting on
March 9, 2007. The personnel director also advised claimant
that he had the option to resign instead of being discharged.
The personnel director did not give claimant any information
as to whether he would have the opportunity to be heard at
the board meeting. Claimant sought advice from his union
representative and a union attorney. The union attorney told
claimant that "there was absolutely no chance that the school
board would overrule a recommendation from the district."
The union attorney therefore advised claimant to resign
before being discharged. Claimant did so on March 9, 2007,
the day on which the school board would have considered
whether to discharge him.

Claimant later sought unemployment benefits. The
Employment Department (department) denied benefits on
the ground that claimant had been "discharged for miscon-
duct." Claimant requested and received a hearing before an
administrative law judge (ALJ). The employer did not appear
at that hearing. The ALJ denied benefits on an alternative
legal basis-i.e., that claimant had "voluntarily left work
without good cause." Claimant appealed to the board. The
board determined, contrary to the department's determina-
tion, that claimant had not engaged in any misconduct. How-
ever, the board further determined, as had the ALJ, that
claimant had not been discharged and, instead, had volun-
tarily left work. Consistently with the ALJ's order, the board
concluded that, in voluntarily leaving work, claimant did so
without good cause. The board therefore affirmed the denial
of unemployment benefits to claimant.

On judicial review, the Court of Appeals affirmed.
McDowell, 222 Or App at 172. The Court of Appeals first con-
cluded that the board had correctly analyzed the case as one
involving a voluntary separation from work, not a discharge,
reasoning that "[c]laimant, not employer, ended the employ-
ment relationship." Id. at 173. The court further concluded
that the board had correctly determined that claimant vol-
untarily left work without "good cause." Id. at 174. The court
reasoned that claimant had a statutory right to a hearing at
which he could have argued against the personnel director's

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recommendation. Id. at 174-75. Thus, according to the Court
of Appeals, claimant had a reasonable alternative to volun-
tarily leaving work. Id. at 175. Claimant petitioned for
review, and we allowed the petition.

On review in this court, claimant argues, first, that
his separation from work should have been analyzed as a dis-
charge rather than a voluntary leaving-a so-called "volun-
tary quit." In support of that contention, claimant urges that
his separation was not voluntary, because he resigned in the
face of an imminent discharge. Alternatively, claimant con-
tends that, because he left work within 15 days of the date
that employer notified him that he would be discharged for
reasons other than misconduct, ORS 657.176(7) required
claimant's separation from work to be treated as a discharge,
even if it would otherwise be considered a voluntary quit. As
an alternative to both of those arguments, claimant urges
that, if his separation from work is adjudicated as a volun-
tary quit rather than a discharge, he had good cause for
resigning. In particular, according to claimant, he had no
reasonable alternative to leaving work, given the proposed
discharge and the circumstances that confronted him.

We begin with an overview of the legal standards
that apply to this case, which derive from a combination of
statutory provisions and implementing administrative rules.
A claimant is disqualified for unemployment benefits if, as
pertinent in this case, the claimant was "discharged for mis-
conduct connected with work" or "[voluntarily left work
without good cause." ORS 657.176(2)(a), (c). Thus, the initial
question is whether the employer discharged the claimant or
the claimant voluntarily quit.2 Under the department's rules,

2 Among other reasons why it might matter how the separation is classified,
the burden of proof may differ. No statute specifically assigns the burden of proof
on these issues. The general rule for allocating the burden of proof in administra-
tive cases is that the burden falls on "the proponent of a fact or position, the party
who would be unsuccessful if no evidence were introduced on either side." Harris v.
SAIF, 292 Or 683, 690, 642 P2d 1147 (1982); ORS 183.450(2) (burden of production
in contested cases rests on the proponent of the fact or position). Long-standing
Court of Appeals decisions hold that a claimant has the burden of proving by a pre-
ponderance of the evidence that, when he voluntarily left work, he did so with "good
cause," while an employer has the burden of proving that a discharge was for mis-
conduct. See, e.g., Babcock v. Employment Div., 25 Or App 661, 664, 550 P2d 1233
(1976) (burden of proving claimant's misconduct rests on the employer); Brotherton
v. Morgan, 17 Or App 435, 438-39, 522 P2d 1210 (1974) (burden of proof on

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none of which is challenged here, a separation from work is a
discharge "[i]f the employee is willing to continue to work for
the same employer for an additional period of time but is not
allowed to do so by the employer." OAR 471-030-0038(2)(b).
Conversely, the separation from work is a voluntary quit if
"the employee could have continued to work for the same
employer for an additional period of time[.]" OAR 471-030-
0038(2)(a). A potential exception to those definitions arises,
however, for an employee who resigns in lieu of being dis-
charged. Even if the separation from work qualifies as a vol-
untary quit, it is adjudicated as a discharge if: (1) the
employer has notified an individual that he or she will be dis-
charged on a specific date; (2) the discharge would not be for
work-related misconduct; (3) the individual voluntarily left
work without good cause before the date of the impending
discharge; and (4) the voluntary quit occurs no more than
15 days before the date of the impending discharge. ORS
657.176(7).3

Once that initial issue is resolved, entitlement to
benefits turns on the reasons for the discharge or the volun-
tary quit. For a discharge, that focus is on whether the dis-
charge was for misconduct in connection with work. As used

claimant to prove good cause for voluntarily leaving). The allocation of the burden
of proof on those issues is not a dispute in this case.

3 ORS 657.176(7) provides, in part:

"[W]hen an employer has notified an individual that the individual will be dis-
charged on a specific date and it is determined that:

"(a) The discharge would not be for reasons that constitute misconduct
connected with the work;

"(b) The individual voluntarily left work without good cause prior to the
date of the impending discharge; and

"(c) The voluntary leaving of work occurred no more than 15 days prior to
the date of the impending discharge,

"then the separation from work shall be adjudicated as if the voluntary leaving
had not occurred and the discharge had occurred. However, the individual
shall be ineligible for benefits for the period including the week in which the
voluntary leaving occurred through the week prior to the week in which the
individual would have been discharged."

(Emphasis added.)

For a claimant who leaves work with good cause, the statute is unnecessary,
because that claimant is entitled to benefits on that basis from the date of her or his
separation from work. Thus, the statute applies only to someone whose voluntary
separation is for reasons other than good cause.

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in this context, misconduct is a heightened standard, one
that requires more than mere neglect or ineptness in per-
forming a person's work. Instead, under the department's
rule, "misconduct" requires "a willful or wantonly negligent
violation of the standards of behavior which an employer has
the right to expect of an employee" or "[a]n act or series of
actions that amount to a willful or wantonly negligent disre-
gard of an employer's interest." OAR 471-030-0038(3)(a).

For a voluntary quit, the focus is on whether the
claimant left work with good cause. Under OAR 471-030-
0038(4),

"[g]ood 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. * * * [F]or all individuals, the reason
must be of such gravity that the individual has no reason-
able alternative but to leave work."

Thus, good cause under the rule is an objective standard that
asks whether a "reasonable and prudent person" would con-
sider the situation so grave that he or she had no reasonable
alternative to quitting.

With that legal backdrop in place, we turn to claim-
ant's first argument-whether his separation from work
properly should be adjudicated as a discharge or a voluntary
leaving. As earlier noted, the department determined that
the employer discharged claimant, and further determined
that the discharge was for misconduct. The board disagreed
with the department's misconduct determination and con-
cluded that the personnel director's reasons for recommend-
ing that claimant be discharged did not satisfy the legal stan-
dard for misconduct. The board did not, however, agree that
claimant's separation from work was a discharge. It deter-
mined, instead, that claimant voluntarily terminated the
employment relationship. The Court of Appeals, as we have
described, agreed with the board. Claimant takes issue with
that conclusion, arguing that claimant had no intention of
leaving his job, and did so only after the employer threatened
him with a discharge; his leaving, therefore, was not
"voluntary."

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We need not resolve that issue to decide this case,
however. There is no dispute that, if claimant was dis-
charged, the discharge was not for disqualifying misconduct.
The board, as we have described, so concluded. The record
amply permits that conclusion. Claimant was unaware of
any policy against showing films containing profanity with-
out first obtaining permission from the principal. The
employer's written policy manual contained no such policy
and the employer did not orally advise claimant of such a pol-
icy. Consequently, claimant's showing of the film was neither
a willful nor wantonly negligent violation of any employer
policy. Thus, if claimant's separation were to be considered a
discharge, the discharge would not be for misconduct, and
claimant would be entitled to unemployment compensation.
The department, which did not appear in the Court of
Appeals but has done so on review before this court, does not
contend otherwise.

Consequently, the essential dispute is whether, if
claimant's separation was a voluntary quit, claimant left
work with good cause. As we explain below, we conclude that,
in these circumstances, claimant had good cause for resign-
ing when he did. Because of that conclusion, claimant is enti-
tled to benefits regardless of how we might resolve the dis-
charge versus voluntary quit issue. We therefore turn to
whether, if claimant quit voluntarily, he did so with good
cause. 4

4 Under the pertinent statutes and administrative rules, were we to conclude
that claimant voluntarily quit without good cause, the analysis would not end with
that conclusion. We would then need to consider whether ORS 657.176(7) (resig-
nation in lieu of discharge is adjudicated as discharge in certain circumstances)
applies. Here, claimant maintains that it does, and he was entitled to benefits
under it. The department disagrees, arguing that the statute requires an employee
to be notified that the employee will, in fact, be discharged on a date certain, and
here, the personnel director told claimant only that the personnel director would
recommend on a particular date that the school district discharge claimant.
According to the department, such a recommendation does not trigger the statute.
The board, having concluded that claimant's separation from work was a voluntary
quit, and having further determined that he did so without good cause, should have
gone on to consider whether, as claimant urged, he was nevertheless entitled to
benefits under ORS 657.176(7). It did not do so. The Court of Appeals, having also
determined that claimant quit voluntarily without good cause, should have consid-
ered that statute and possibly remanded the case to the board for that purpose.
Because we conclude that claimant's separation from employment was with good
cause, however, the statute does not come into play.

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"Good cause" is a delegative term that the department
has authority to interpret and refine by rule. Springfield
Education Assn. v. School Dist., 290 Or 217, 228-29, 621 P2d
547 (1980). As noted, the general test for good cause under
the department's rule is whether "a reasonable and prudent
person of normal sensitivity, exercising ordinary common
sense, would leave work." OAR 471-030-0038(4). The test fur-
ther requires that the reason for leaving "be of such gravity
that the individual has no reasonable alternative but to leave
work." Id. In addition to setting out that general test for what
constitutes good cause, the department by rule also has iden-
tified particular circumstances or reasons for leaving work
that are not good cause. Pertinent to this case, OAR 471-030-
0038(5)(b)(F) states that "[l]eaving work without good cause
includes, but is not limited to: Resignation to avoid what
would otherwise be a discharge for misconduct or potential
discharge for misconduct[.]" (Emphases added.) Thus, the
department's policy is that resigning to avoid a discharge or
potential discharge for misconduct is not good cause for vol-
untarily leaving work. But that rule is limited to a resigna-
tion in lieu of a discharge or potential discharge "for miscon-
duct." Necessarily, then, the department has left open the
possibility that, when a resignation is in anticipation of a dis-
charge not for misconduct, the separation from work may
qualify as voluntarily leaving work for good cause.

Here, as discussed, claimant's prospective discharge,
if it had occurred, would not have been for misconduct.
Accordingly, OAR 471-030-0038(5)(b)(F) does not disqualify
claimant from receiving benefits. Claimant's entitlement to
benefits therefore turns on the test for a voluntary quit gen-
erally: whether a reasonable person of normal sensitivity,
exercising ordinary common sense, would have considered
the circumstances to be sufficiently grave that he or she had
no alternative but to resign. As we outline below, the board's
factual findings, and the evidence in the record that supports
those findings, required the good cause determination to be
resolved in claimant's favor.

On this record, it is beyond dispute that the conse-
quences of a discharge for claimant were grave. In his testi-
mony before the ALJ, claimant explained that he quit when

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he did because he had "hopes of teaching again one day and to
have that on [his] record would be * * * a kiss of death."
Claimant knew, from his experience in the field of education,
that "there's a very serious cloud over anyone who's been
actually fired." Claimant in fact had served on hiring com-
mittees in the past and, in the course of doing so, had
observed instances in which the deciding factor in declining
to hire an applicant was a past discharge on the applicant's
record. The board specifically found from that evidence that
"[c]laimant believed that his prospects of finding other work
as a teacher would be jeopardized if he were discharged."5

Claimant's belief in that regard was, moreover, cor-
roborated by his employer. The board found, again based on
claimant's testimony, that when the personnel director told
claimant that he was going to recommend that the school
board discharge claimant, the personnel director also advised
claimant that he could resign instead. That advice signaled
the employer's awareness of or sensitivity to the serious pro-
fessional stigma that claimant might suffer after a discharge.
At a minimum, a reasonable and prudent person likely would
take the employer's comments to be tacit encouragement to
quit in lieu of being discharged to spare the person the reper-
cussions of a discharge on future employment opportunities.

In concluding that claimant voluntarily left work
without good cause, the board in no way discounted the
strength of claimant's belief that a discharge would be "a kiss
of death" to his future employment. Nor did the board ques-
tion the reasonableness of that belief. Rather, the board
focused only on the likelihood of claimant's prospective dis-
charge. The board characterized claimant as "fac[ing] a mere
possibility of discharge." The board reasoned that, because
employer's personnel director had not yet recommended
claimant's discharge to the school board and the school board

" The employer made no appearance before the ALJ. Thus, no evidence rebuts
or contradicts claimant's testimony in that regard. The board was not obligated to
believe claimant, despite the lack of any contrary evidence, assuming it could artic-
ulate substantial reasons for rejecting claimant's uncontradicted testimony (e.g.,
lack of credibility, inherent unbelievability, etc.). See generally City of Portland v.
Bureau of Labor and Ind., 298 Or 104, 116, 116 n 6, 690 P2d 475 (1984) (where cred-
ibility of witnesses is concerned, trier of fact is not necessarily bound by uncontra-
dicted testimony, for trier of fact may simply not believe a witness). But here, the
board did believe claimant, and found facts consistently with claimant's testimony.

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had not yet voted to discharge claimant, a reasonable and
prudent person would not have left work rather than face the
prospect that the employer "might" discharge him at some
point in the future. The board also reasoned that claimant
had legal remedies available to him to challenge the dis-
charge decision and, as a result, his discharge was "not a fore-
gone conclusion." In our view, however, the board's reasoning
was flawed.

To characterize claimant as facing a "mere possibil-
ity of discharge" cannot be squared with the facts found by
the board. The board believed claimant's testimony that the
personnel director-who, by virtue of his position, must be
assumed to have had significant chain-of-command respon-
sibility for hiring and firing decisions-told claimant that he
would recommend claimant's discharge to the school board at
its upcoming meeting. The board also accepted claimant's
testimony that the union's attorney told him that "there was
absolutely no chance that the school board would overrule a
recommendation from the district." The board found that
claimant in fact "believe[d] * * * that he would be discharged
by the employer on March 9." The board did not find that
claimant's subjective belief was unreasonable or suggest that
a prudent person exercising ordinary common sense in claim-
ant's situation-viz., an employee who was advised by his
union and union attorney that there was "absolutely no
chance" that the school board would not discharge him-
would have believed that his discharge was a "mere
possibility."

Instead, the board's characterization appears to
have been prompted by its view that the evidence did not
establish that the school board in fact would have discharged
claimant on March 9. The board reasoned that claimant had
legal rights and remedies to avoid a discharge, and that a
reasonable person would have pursued them before voluntar-
ily separating from gainful employment. In particular, the
board pointed to ORS 342.835 and stated that "Oregon law
provided claimant with recourse, including the right to be
given a copy of the reasons for dismissal, the right to repre-
sentation and to be heard by the board, and the right to
appeal a dismissal decision for procedural errors." Later in
the decision, the board emphasized that, under Oregon law,

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the school district "could not have discharged [claimant]
without a hearing." The Court of Appeals reasoned similarly,
pointing out that claimant had a statutory right to be heard
before the school board would have taken action to discharge
claimant. See McDowell, 222 Or App at 174-75 (ORS 342.835
guarantees claimant a hearing at which he could have
argued against the personnel director's recommendation).

Claimant urges, however, that both the board and
the Court of Appeals were wrong about the predismissal rem-
edies to which claimant was legally entitled. Claimant, who
left his job in the first year of his employment, was a proba-
tionary teacher.6 According to claimant, he therefore was not
entitled under ORS 342.835(1)7 to a predismissal hearing at
all. Instead, claimant understands the statute to provide a
probationary teacher with only postdismissal notice and
opportunity to be heard, thus giving him a chance to contest
the dismissal only after the fact. In addition, claimant points
out that, under the statute, a probationary teacher may be
dismissed "at any time" and "for any cause considered in good
faith sufficient," thus providing a probationary teacher with
little substantive ground to contest a dismissal at the school
district level. Finally, claimant emphasizes that, under sub-
section (3) of the statute, an appeal to circuit court would
permit only procedural challenges, so that a probationary

6 See ORS 342.815(6) ("probationary teacher" is a teacher who is not a contract
teacher); ORS 342.815(3) ("contract teacher" is any teacher who has been regularly
employed by a school district for a probationary period of three successive school
years, and who has been retained for the next succeeding school year).

7 ORS 342.835 provides, in part:

"(1) The district board of any fair dismissal district may discharge or
remove any probationary teacher in the employ of the district at any time dur-
ing a probationary period for any cause considered in good faith sufficient by
the board. The probationary teacher shall be given a written copy of the rea-
sons for the dismissal, and upon request shall be provided a hearing thereon by
the board, at which time the probationary teacher shall have the opportunity
to be heard either in person or by a representative of the teacher's choice.

"(3) If an appeal is taken from any hearing, the appeal shall be to the cir-
cuit court for the county in which the headquarters of the school district is
located and shall be limited to the following:

"(a) The procedures at the hearing;

"(b) Whether the written copy of reasons for dismissal required by this
section was supplied[.]"

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teacher's judicial remedies are particularly limited. See
Henthorn v. Grand Prairie School Dist., 287 Or 683, 692, 601
P2d 1243 (1979) (interpreting ORS 342.835 to provide that
the appeal is by writ of review, which review is limited to the
procedures used in the dismissal process).

To assess whether claimant resigned with or with-
out good cause, we need not decide if claimant is correct about
what predismissal remedies are available to a probationary
teacher under ORS 342.835(1). Nor need we determine
whether, had claimant been offered a predismissal hearing,
his decision to resign when he did would constitute good
cause, given the limited grounds on which he could have con-
tested the personnel director's discharge decision. Here, it is
enough to conclude that the school district did not offer claim-
ant a predismissal opportunity to be heard. The board found
that claimant was told by the personnel director why the
director would be recommending discharge to the school
board. Claimant's testimony, on which that finding was nec-
essarily based, was that the personnel director gave him that
information orally. As claimant described and the board
found, claimant waited until the last possible moment-the
day of the school board meeting-to tender his resignation.
Claimant testified that he was never told anything about
whether he could be heard at the school board meeting in
which the discharge decision would be made. Thus, the only
conclusion that is permissible, given the board's findings and
the record support for them, is that the school district did not
give claimant the written notice that ORS 342.835(1)
requires, which would have triggered his right to a hearing.
The school district instead was prepared to proceed with the
discharge decision without giving claimant any predismissal
notice or hearing procedures.8 Thus, on this record, the right
to a hearing under ORS 342.835(1) was not a means by which
claimant could avoid the discharge. The board's reliance on
that statute in this case therefore was misplaced, as was that
of the Court of Appeals.

" The statute, as our earlier quotation of it reflects, is silent on the timing of the
written notice and opportunity for a probationary teacher to be heard. Thus, a
reasonable person could not know from the terms of the statute itself the timing of
any remedies available to a probationary teacher.

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Given the board's reasoning, it is worth emphasizing
the objective standard that applies to these cases. When, as
here, an employee is facing a prospective discharge, whether
resigning in lieu of that prospective discharge is for "good
cause" depends not on a hindsight determination of whether,
in fact, claimant would have been discharged by the school
board. The issue depends, instead, on whether a reasonable
person facing that prospect of discharge would consider the
prospect so grave a circumstance that resigning was the only
reasonable option. That objective inquiry depends on what
claimant in fact knew and reasonably should have known
when he made his decision, not on an assessment of how
events in fact would have played out.9

In light of the facts found by the board, and the rec-
ord that supports those facts, this case reduces to this:
Claimant believed that being discharged would create seri-
ous problems for him in obtaining future employment. Under
the circumstances, that belief was reasonable, and the board
did not conclude otherwise. Claimant also believed, based on
his union's attorney's advice, that the school board would fol-
low the personnel director's discharge recommendation-
that is, according to the advice claimant received, there was
"absolutely no chance" that the school district would overrule
the personnel director's recommendation. The school district
could legally dismiss claimant, given his probationary status,
at any time and for any good faith reason. Claimant thus
could legally contest his discharge on only the most narrow
substantive grounds. And he had no ability to do so predis-
missal-the school district made no overture to provide him
with any dismissal remedies in advance of the meeting in

9 In a footnote in its decision in this case, the board noted that it has "consis-
tently held that where, as here, a claimant voluntarily leaves work rather than face
the possibility of future discharge, Oregon law requires a disqualification from ben-
efits." To the extent that the board has suggested, in this or any other case, that a
future discharge must be "certain" before a resignation to avoid the discharge can
qualify as good cause, such a conclusion would be inconsistent with the "reasonable
and prudent person" standard in place. Under the applicable statutes and admin-
istrative rules, the question must be whether, given the circumstances as a whole,
the situation facing the employee was sufficiently grave that the employee had no
reasonable alternative to leaving employment. The likelihood of a prospective dis-
charge logically bears on the gravity of the situation. But the fact that a threatened
discharge is less than certain to occur, and the fact that the discharge, after it
occurs, is not irreversible, are not factors that are dispositive, in and of themselves.

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which a discharge decision would be made. Finally, as the
board recognized, claimant's judicial remedies were very
limited-in a circuit court appeal, he could raise only proce-
dural objections.

Under those circumstances, would a reasonable and
prudent person, of normal sensitivity and exercising ordinary
common sense, believe that he faced such a grave situation
that leaving work was the only reasonable course for him to
take? The only permissible answer to that question on this
record is yes. The board, as a matter of law, given its findings
of fact and its reasoning, was obligated to so conclude. As a
result, the board should have determined that claimant vol-
untarily left work with good cause and should have awarded
claimant unemployment benefits.

The decision of the Court of Appeals is reversed. The
order of the Employment Appeals Board is reversed, and the
case is remanded to the Employment Appeals Board for fur-
ther proceedings.