While Mr. Carr and [John] agreed that the lack of QA test was a serious problem for the company, it appears that [John] was unable to actually do the required QA test. It appears that [John] would get so rushed to move on to the next problem that he would never pause to consider which tests are required to be sure that the current problem was fully resolved. This was not a case of 'incompetent, slipshod'⁵⁶ work as described by Judge Smith, but rather unrealistic schedules for all of the CSE's including those outside of Mr. Carr's department. Further, given Mr. Carr's awareness of the costs of mistakes, it would have been misconduct and 'disregard of an employer's interest'⁵⁷ for Mr. Carr to close out tasks without completing appropriate tests, but Mr. was unreasonably prevented from making this important point.

Had Mr. Carr been permitted to present relevant evidence of the significant impact of mistakes as well as time sensitive nature of the work, Judge Smith likely would not have made the unfounded and incorrect finding that YESMAIL, INC. was a “direct mail marketing company”⁵⁸ rather than a 'email mass marketing company' and would have understood that it would have been irresponsible for Mr. Carr to complete forty tasks per week.

1.5 Security Concerns

Mr. Carr did not keep copies of his business records at home because it violated company security policies and Mr. Carr took security concerns very seriously. Another example which Mr. Carr intended to document and include in the record was a security exposure which he identified and how it was finally resolved.

Mr. Carr had assisted in the migration of one of the very first clients from the Jaguar system to Enterprise, Cingular, but because it was found that Mr. Carr was too critical to supporting the Jaguar he was then returned to the supporting the Jaguar system. When most of the Jaguar clients had been migrated to Enterprise, Mr. Carr was asked to assist in the migration of one of the last Jaguar clients, HSN, a very important client. At that time Mr. Carr observed that the procedure for setting up a client had been changed over the intervening period with a short cut which, sadly, created a security exposure.⁵⁹

The exposure was such that any of these new clients could access all data in the Enterprise system, not just their own data, but the data for all clients including proprietary YESMAIL, INC. data.⁶⁰ The only knowledge required to gain this access beyond what any client would already know was a normal working knowledge of the Unix operating system and Oracle database. Certainly the two dozen CSEs working for YESMAIL, INC. all had that basic knowledge, but there were also likely from 200 to 500 IT professionals working for clients with that knowledge. Sadly that figure included ex-employees and ex-customers, heightening the risk They just needed a little to curiosity to try the commands and could then gain access to all data. From Mr. Carr's perspective, a more serious threat was that anyone who had the ability to surreptitiously monitor the Internet traffic to and from YESMAIL, INC. would naturally pick up the required information (and would certainly already know which Unix and Oracle commands to use as it is quite challenging to selectively monitor Internet data). Further, while there aren't many people who have the ability to monitor Internet traffic (perhaps 200 to 400 throughout the world), most of them have nefarious purposes, are outside the scope of U.S. law, and would certainly have several uses for the data (all illegal, of course).

The short cut which had become common practice at that time only saved a couple of minutes from the traditional set up procedures, but to correct the exposure took from 15 to 45 minutes total for each client by different people in different departments. When Mr. Carr noticed the exposure, he first verified that anyone with Internet access could access all Enterprise data, and then began endeavoring to have the exposure fixed, notifying management and other CSEs. Mr. Carr's primary concern was that in a worst case scenario, all Enterprise data would get into the hands of some of the nefarious people overseas and as they utilized the data for monetary advantage, it would be found out. While this scenario was extremely unlikely, that particular scenario would likely bankrupt YESMAIL, INC. with Mr. Carr and all his co-workers losing their jobs, substantial loss in share holder value and great turmoil for all YESMAIL, INC. customers.

While the different CSEs stopped using this short cut, management was hesitant to move forward on fixing the 100 or so clients who had the exposure, downplaying the risk while focusing on pressing commitments for new function and new clients. The full correct ion was not implemented until several weeks later and it was all done in a few days after the sudden departure of another member of Mr. Carr's department.⁶¹ Mr. Carr would have recommended a more staged correction of the defect, but was happy to see the exposure corrected.

While Mr. Carr conscientiously followed all specified procedures in pursuing the correction of this defect, he was verbally reprimanded for interfering with the roll out of an important client on Enterprise by his manager. His manager later apologized as Mr. Carr had, in fact, followed all procedures, Mr. Carr's focus on correctness was not popular with management. To Mr. Carr, the consequences of such short cuts were not justifiable and this was another reason why Mr. Carr felt that he could not responsibly complete forty tasks per week in this environment. From his perspective, to give precedence to meeting schedules over correctness of the solution would have been 'wantonly negligent disregard of an employer's interest'⁶² and misconduct given the extreme consequences which were possible without prompt correction (i.e. bankrupt the company). However, Mr. Carr was unfairly prevented from demonstrating the seriousness to mistakes and that 'Forty tasks per week was ... could not be done responsibly'.⁶³

1.6 Enforcement of Written Policies

Had Mr. Carr been able to access the records he had archived at work, he would have documented the rather draconian manner in which written policies were implemented at InfoUSA, later renamed to be InfoGroup, the parent company of YESMAIL, INC.. When @Once was purchased by YESMAIL, INC., the CSEs in the San Carlos, CA office (then the headquarters of YESMAIL, INC.) were permitted to work from home one day each week and were reimbursed for up to $50 per month for home Internet access expenses. In December of 2004, the CSEs in the Portland office, were copied on an email stating that effective January 1, 2005 they would also be similarly reimbursed based on a verbal approval of these expenses to their third line manager from their fifth line manager (with InfoUSA in Omaha, Nebraska). For the next six months the members of Mr. Carr's department regularly submitted the expense reimbursement requests, but they were never reimbursed. Based on continued inquiries by several members of the staff, the Portland staff finally got word that they would not be reimbursed for the first six months of 2005 because they had not submitted the requests on the correct form and had not gotten the correct prior written approval of the expenses.

Mr. Carr took exception to this decision as he believed it violated generally accepted business practices and well as contract law. He asked that the decision be reviewed by higher levels of management. As more management were involved in the discussion, it was decided that InfoUSA would permit reimbursement of the first six months of 2005 for those CSEs who promptly resubmitted their expense reimbursement requests. Three staff members pulled the required documentation together and resubmitted the request with Mr. Carr being the first to submit his request. The other two members who were eligible for reimbursement did not resubmit requests as they no longer had the required documentation of the expense. After several weeks, the other two staff members who had requested the special reimbursement received their payments, but Mr. Carr had not. When he inquired as to why payment had not been made in his case, he was told (via email) that his request had not been processed as yet (with no reason given for the delay in processing his request) and that it was now too late to be processed, no payment would be made.

It appeared to Mr. Carr that the individual who processed the requests was discriminating against Mr. Carr because he was the person who had raised the issue to management in the first place. Whatever the cause, Mr. Carr was inclined to again raise the issue to higher levels of management including Mr Gupta, InfoUSA's CEO, as these were definitely not good business practices. However, the local management convinced Mr. Carr that he just let things alone because InfoUSA had a strict policy against anyone working from home under any circumstances and YESMAIL, INC. was a technology company which had to function 24 by 7 and could not function without staff being able to work from home (emergencies came up at any hour and had to be resolved without delay). There was a fear that if the issue was raised to higher levels, all reimbursement for home Internet access would be rescinded along with the ability to work from home. This would impact virtually the entire technical staff who were required to work from home on a regular basis as well as almost all of the sales staff who were expected to monitor and support customer mailings as they occurred (24 by 7). On this basis, Mr. Carr was convinced to drop this issue though it grated on his sense of how businesses should be run.

Several months later, Mr. Carr switched his Internet access from Comcast which was charging $53 a month to Qwest which offered the same services for $37, a $13 savings to the company. However, after he had made the switch he learned that Qwest always delayed the first bill for a month so that the first bill included two months of service. As Mr. Carr knew that InfoUSA would not pay any expense reimbursement request which was delayed a month and that there was a monthly limit on this reimbursement of $50, he submitted two separate requests, the first of which did not have the normal bill, but instead documentation of the expenses and an explanation of Qwest's policy of delaying the first bill. That first reimbursement request was returned noting that there was not adequate documentation, but by that time Qwest had sent the required bill and Mr. Carr resubmitted the request explaining that this bill covered two months. Mr. Carr did not receive any response but after a few months observed that he was missing a payment. When he asked for an audit of payments, he was told (via email) that one of the payments was denied because it exceeded the monthly limit of $50 (but he was not reimbursed for the $13 remaining either). Mr. Carr noted in response that it violated generally accepted accounting practices to make or deny payments without any confirmation to the requester (all payments were required to be made via direct deposit so there was never any explanation of what a payment was for). Mr. Carr noted that this manner of processing expense payments was extremely prone to fraud (payments could be misdirected however a criminal liked with no process to report the crime) and asked for a review of the practice in order to preserve share holder value. Mr. Carr was inclined to involve higher management on the decision to deny what he viewed as a quite reasonable request as well as a faulty process but was again convinced by his local management to simply let the matter go.

Several months later, Qwest credited the interest on Mr. Carr's deposit of $50 (InfoUSA would not reimburse deposits for obvious reasons) with a credit of 13 cents. However, InfoUSA reduced his payment by that same 13 cents. When Mr. Carr again inquired he was told that InfoUSA would only pay billable amounts and so his payment was reduced to the billable amount. Mr. Carr explained that the credit made to his account was not a discount, but rather a payment as the deposit and its interest were his, not InfoUSA's. However, no discussion of generally accepted accounting principles was effective. Again Mr. Carr dropped it rather than appealing to higher management, but it left a bad feeling with Mr. Carr.

Around this same time frame, Mr. Carr learned that with a $10 cable he could significantly improve his productivity, connecting a second monitor to his work computer (the monitor was already available). However, in order to spend $10 he had to submit the request for prior written approval (to protect share holder interests) getting the approval of five levels of management prior to purchasing the item. Knowing this, Mr. Carr got the approvals and the cable and was reimbursed as requested, but he was struck by the absurdity of the whole process.

It is possible that Mr. Carr was reimbursed through a larger bonus for some portion of the expenses which he felt were improperly denied, but this can not, of course, be verified as it requires a speculative figure, the amount of his bonus had the issue not come up at all. However, Mr. Carr suspected that there was widespread denial of legitimate expense reimbursements throughout the company as well as other illicit activity.

Mr. Carr's instincts were borne out when on July 22, 2008 the CEO, Mr Gupta was fired for improperly using corporate funds to pay for personal expenses. Mr. Gupta was pilfering the company coffers throughout the time Mr. Carr had his encounters with InfoUSA corporate staff. While Mr. Gupta was required to reimburse $9 million which he had misappropriated and was fired, the staff in InfoUSA who had supported Mr. Gupta's illicit activities remain in place. Mr. Carr's expectation of fair and reasonable treatment by InfoUSA was not much improved by this change in leadership.

Mr. Carr was prevented from documenting these absurd and draconian implementations of the written policies by InfoUSA as well as the fact that written policies were selectively enforced in an arbitrary and capricious manner by InfoUSA and contrary to Judge Smith's finding that “The claimant believed, mistakenly, that most or all of the other employees who worked for the employer were allowed to work from home on a regular basis”,⁶⁴ which Mr. Carr could have clearly demonstrated had he had access to the documents which he had requested.

1.7 Abuse of Work From Home

[Larry] made a general comment about abuse of the work from home, but this testimony was not tied to any behavior by Mr. Carr nor any specific knowledge concerning Mr. Carr's productivity when working from home.⁶⁵ However, Judge Smith created a completely unsupported allegation of irresponsible behavior when she typified Mr. Carr's work from home days as a 'day off'.⁶⁶ Had Mr. Carr been permitted to document his productivity when working from home, this confusion never would have resulted.

In particular, when Mr. Carr was working from home he always insured that he was more productive at home than he was in the office. When Mr. Carr was in the office he followed normal time tracking practices and charged break times, going to the bathroom and such, but certainly not lunch breaks, to the customer and task he was working on. However, when Mr. Carr was working from home, he made what he viewed as a harmless variation from these time tracking practices and did not charge any breaks to the task he was working on. It meant that he would be working a little longer when he was working from home, but Mr. Carr considered this as a minor gift to the company and, if applicable, billable customer for the trust of allowing him to work from home. When this minor variation was added to the lack of interruptions (less phone calls and such), Mr. Carr was able to verify that his productivity (tasks completed per hour) was consistently a slight but measurable amount higher when he was working from home. While Mr. Carr was not aware of anyone having any concerns about his productivity when working from home, he would occasionally check to verify that he still slightly more productive when working from home because the check was so simple and because it reaffirmed his confidence that he was not taking advantage of the company and the trust that was being placed in him.

The aspersion by Judge Smith that Mr. Carr was taking advantage of 'working from home' and treating it as a 'day off' to cheat the company⁶⁷ is unfounded and, had Mr. Carr had access to the records he kept, he intended to and would have demonstrated this before it was ever alluded to.

1.8 Accuracy of Witnesses

There is a fundamental problem with heavily relying on testimony as the basis for making determinations as recommended by Judge Seideman⁶⁸ in that there is often disagreement as to what had transpired, which is certainly the case in the matter at hand.. With burden of proof being on the claimant to prove the good cause in the case of voluntary separation⁶⁹, there is no way that claimant can be expected to overcome this burden of proof with disagreement in testimony unless the claimant is given full access to the other sources of evidence (which is not subject to the vagaries of memory as is the case with testimony), but this is not possible without a well documented and thorough discovery process as virtually all of the documents of relevance are retained by the employer. Given the bias of the burden of proof, any administrative hearing without both parties having full access to all the available evidence is not a meaningful hearing as required by due the process requirements of the Fourteenth Amendment of the U.S. Constitution.

However, given the lack of access to requested documents, Mr. Carr is forced to rely on arguing the relative accuracy of the different witnesses. It is worthy of note that while Mr. Carr requested all job performance evaluations,⁷⁰ he only received one⁷¹, the most recent and the one which was least favorable⁷². Further, it is unreasonable to imagine that after more than four years of employment with numerous pay raises and bonuses, there would only be one job performance evaluation. The absence of these documents which would clearly indicate that the productivity issue was quite recent indicates that the employer was attempting (successfully, it seems) to withhold incriminating evidence and suggests that the employer is attempting to shade the truth in other matters as well.

As to the accuracy of [Larry]'s testimony, there is also his self-admitted complicity in an illicit and possibly illegal scheme to violate written company policies. According to the testimony of both parties, [John] had stated that he would 'make good' on any lost paid time off (PTO) in violation of written company policy. When Mr. Carr asked that this promise be confirmed in writing, [John] declined but instead said that Mr. Carr should 'trust him'. When Mr. Carr expressed concern about this, [Larry] also agreed that Mr. Carr should trust [Larry] as well (a separate assurance that any any lost PTO would be made 'good'), but would not put that promise in writing either.⁷³

In the current U.S. business environment, when a promise is made verbally to provide a future benefit, but the promiser declines to put that promise in writing and instead asks the recipient to 'trust me', the promiser is almost certainly a liar and cheat. In a business environment, it is well understood that it is never possible to guarantee any future benefit. The enterprise could go bankrupt⁷⁴, the promiser could be removed from the position, or any number of other unforeseen events. A verbal promise to provide a future benefit is really just a statement that the promiser will make a best effort to provide the benefit. However, a fundamental foundation for that best effort is to put the promise in writing. This not only assures that both parties understand what is expected, it helps insure that in the event that the promiser is no longer able to bring about the benefit, then the recipient might be able to seek redress in the altered environment, be it a new manager or bankruptcy court. However, when the request to have the promise put into writing is declined, it implies that the promise is illicit and possibly illegal. Further, the response of 'trust me' means, at best, that the promiser is very aware of the risks and is trying to distract the promised recipient from acknowledging those risks. In essence, the promiser is trying to deceive the promised recipient by concealing the known risks, which is lying, while explicitly not making a best effort to provide the promised benefit, which is trying to cheat the recipient if not outright fraud. In the worst case, the promiser has no intention of ever providing the promised benefit and simply does not want to be found out in their lying and cheating.

Needless to say, Mr. Carr was appalled that two of his co-workers, his manager and the Human Resources representative, would be reduced to this level of deception, but the court should also take note the testimony of self-admitted liars and cheats is almost certainly shaded and should not be taken at face value.

2. Discharge Versus Voluntary Separation

The question of whether claimant voluntarily left work or was discharged logically precedes any inquiry into the bases of the alleged “discharge.” Perez v. Employment Department, 164 Or. App. 356 (1999). The burden of proof is not established until this question is resolved.⁷⁵ The standard for this finding is OAR 471-030-0038 (2):

The distinction between voluntary leaving and discharge is: if the employee could have continued to work for the same employer for an additional period of time, the separation is a voluntary leaving of work. If 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 the separation is a discharge

Judge Smith found:

The claimant voluntarily left work....⁷⁶

based on a finding that:

At the meeting on October 1, 2008 the claimant asked [John] and [Larry] if they were telling him he could not work from home the next day. When they assented, the claimant stated that he could not work for the employer any longer as the employer was changing the terms and conditions of employment. [Larry] was very surprised. He told the claimant that the employer wanted him to continue working. He asked the claimant whether he intended to pack up and leave. The claimant said he did. The claimant was then asked for his badge and keys and escorted to his desk to collect his belongings.⁷⁷

However, this is simply a restatement of [Larry]'s testimony without considering Mr. Carr's alternate testimony concerning that final meeting.⁷⁸ While [Larry] claimed that Mr. Carr had said 'Well then I can't work here anymore',⁷⁹ Mr. Carr denied making any such statement but rather had said 'I did not see how could meet those conditions'.⁸⁰ Given that the final meeting had occurred more than two months before the hearing, it is unlikely that we will ever know what was actually said, but the statement “I can't work here anymore” is not consistent with Mr. Carr's style of speaking (e.g. it is obviously false, logically speaking) whereas “I don't see how I can meet those conditions” is much more consistent with his style.

While Mr. Carr has no recollection of being asked 'Are you going to pack up and leave?' by [Larry],⁸¹ he does remember consistently stating his belief that he did not see how he could meet those conditions. If there were some question in that vein, Mr. Carr could have understood it as 'Are you willing to pack and leave if asked to?' which he would have certainly have answered affirmatively. However, his recollection was that he never stopped looking for alternatives to separation until [Larry] asked him for his keys.⁸² The real question is which party stopped seeking alternatives and ended the discussion. [Larry] only admitted it under cross,⁸³ but both parties agreed that it was [Larry] who terminated the meeting by asking Mr. Carr for his keys.⁸⁴

Given the substantial differences in the testimony between Mr. Carr and [Larry], the relative reliability of the witnesses has to be considered. It should be noted that it was [Larry] who was complicit in an illicit (and possibly illegal) scheme in violation of written company policy whereas Mr. Carr refused to have any involvement with any illicit activity.⁸⁵ Further, while [Larry] initially testified that Mr. Carr had never seen the 'Final Written Warning' document,⁸⁶ this was absurd as there was no way for Mr. Carr to know to ask for the document if he had not seen it. Once this absurdity was pointed out, [Larry] recanted his earlier testimony.⁸⁷ It appears that [Larry] was trying to avoid dealing with the harsh and inflexible terminology in the 'Final Written Warning' as it was hardly consistent with his other testimony about trying to be accommodating and understanding. However, the degree to which [Larry] opportunistically stretched his testimony in this area could be indicative of his accuracy in other areas as well.

Another factor to consider is that the meeting was scheduled by [John]⁸⁸ at the last possible moment even though [John] had had several weeks to get back to Mr. Carr on the issues being discussed.⁸⁹ From Mr. Carr's perspective, he had seen restrictions on work hours proposed in the past (e.g. just prior to the firing of Ms. Rowlette), but when he noted that they were not realistic, he was informed that he did not need to adjust his work patterns, they were fine.⁹⁰ [John]'s response of “I'll get back to you on that” was hardly a statement that Mr. Carr's concerns were irrelevant and that Mr. Carr was expected to abide by the new policies in any case. Rather than promptly attempting to address Mr. Carr's concerns, [John] used the intervening weeks as an opportunity “build a case” against Mr. Carr,⁹¹ taking advantage of his ambiguous response to attempt to show that Mr. Carr was a recalcitrant employee when, in fact, Mr. Carr was thoughtfully expressing his concerns about the feasibility of the new restrictions on work location and work hours and awaiting a response to the concerns.

Last Meeting Appearing as Ambush

Even though Mr. Carr had promptly notified all interested parties of his upcoming work schedule several days in advance (and in accordance with the policy which Mr. Carr believed was current),⁹² the meeting was scheduled such that it gave Mr. Carr no opportunity to alter his personal commitment⁹³ and minimizing the chance for compromise. Rather than preparing a thoughtful response to Mr. Carr's concerns about how he could handle personal commitments and emergencies, Mr. Carr was presented with a 'Final Written Warning' and claims that he had been insubordinate by violating a direct order⁹⁴ while he had been left with the impression that the issue was still under consideration. The net effect was one of an ambush orchestrated by [John] rather than an attempt to reach a mutually acceptable understanding. While [Larry] may have expressed surprise at the outcome of the meeting,⁹⁵ given the circumstances created by [John], a separation of some form certainly seems to have been the intent.

On further examination, [Larry] admitted that, contrary to his initial recounting of the meeting, Mr. Carr had in fact suggested several alternatives to separation while neither [John] and [Larry] had offered any alternatives.⁹⁶ Given that they knew well in advance what Mr. Carr's concerns were,⁹⁷ instead of presenting him with a written document which confirmed his concerns about not having any flexibility to meet personal commitments and emergencies,⁹⁸ they could have altered the written document to instead include provisions from the verbal policy described by [Larry] of liberal use of PTO to meet personal commitments and emergencies.⁹⁹ Indeed, they could have said, “Well, we understand from your email last week that you have personal commitments tomorrow, so why don't use PTO to cover it and on Friday we can discuss how you can use PTO in the future to cover any other personal commitments and emergencies which come up.” However, neither [Larry] or [John] offered any alternatives, they simply stood by a harsh and inflexible written policy, not even mentioning any liberal verbal policy.¹⁰⁰

Given that [John] scheduled the meeting such that Mr. Carr had no chance to reschedule his personal commitment,¹⁰¹ and [John] changed his position from one of further discussion¹⁰² to no consideration of any alternatives¹⁰³ and confirmed in writing that there was no flexibility in the use PTO or flexible hours to respond personal commitments or emergencies,¹⁰⁴ it is consistent that it would be [Larry] who ended the meeting (asking for Mr. Carr's keys) after Mr. Carr had made a statement that he did not see how he could meet the written requirements he was faced with. This would be a discharge as it is YESMAIL, INC. who is preventing Mr. Carr from working.

3. Good Cause, Misconduct

There are now two criteria to consider to determine whether Mr. Carr is eligible for unemployment benefits. If Mr. Carr was discharged as argued, the standard is ORS 657.176 (2) (a) and whether Mr. Carr was 'discharged for misconduct connected to work'. There is further guidance in OAR 471-030-0038 (3) with:

(a) As used in ORS 657.176(2)(a) and (b) a willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee is misconduct. An act or series of actions that amount to a willful or wantonly negligent disregard of an employer's interest is misconduct.
(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.

The question of misconduct considers whether an act is "wantonly negligent" and not an "isolated instance of poor judgment". In this regard, OAR 471-030-0038 (1) (c) states:

As used in this rule, "wantonly negligent" means indifference to the consequences of an act or series of actions, or a failure to act or a series of failures to act, where the individual acting or failing to act is conscious of his or her conduct and knew or should have know that his or her conduct would probably result in a violation of the standards of behavior which an employer has the right to expect of an employee.

Similarly, OAR 471-030-0038 (1) (d) states:

As used in this rule, the following standards apply to determine whether an "isolated instance of poor judgment" occurred:
(A) The act must be isolated. The exercise of poor judgment must be a single or infrequent occurrence rather than a repeated act or pattern of other willful or wantonly negligent behavior.
(B) The act must involve judgment. A judgment is an evaluation resulting from discernment and comparison. Every conscious decision to take an action (to act or not to act) in the context of an employment relationship is a judgment for purposes of OAR 471-030-0038(3).
(C) The act must involve poor judgment. A decision to willfully violate an employer's reasonable standard of behavior is poor judgment. A conscious decision to take action that results in a wantonly negligent violation of an employer's reasonable standard of behavior is poor judgment. A conscious decision not to comply with an unreasonable employer policy is not misconduct.
(D) Acts that violate the law, acts that are tantamount to unlawful conduct, acts that create irreparable breaches of trust in the employment relationship or otherwise make a continued employment relationship impossible exceed mere poor judgment and do not fall within the exculpatory provisions of OAR 471-030-0038(3).

If it is determined that Mr. Carr, voluntarily left his position, the determining law is ORS 657.176 (2) (c) and whether Mr. Carr left 'without good cause'. Additional guidance is provided by OAR 471-030-0038 (4) with:

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 all individuals, the reason must be of such gravity that the individual has no reasonable alternative but to leave work.

3.1 PTO and Work From Home Policies

While there was significant discussion at the hearing of December 19, 2008 concerning the YESMAIL, INC. policies for paid time off (PTO) and working from home with much apparent disagreement, there was, in fact, no actual disagreement in the evidence presented.

It was agreed by all parties that the only written policy for PTO was from the parent corporation which only permitted the usage of PTO when:

• The employee was sick and provided an after the fact statement from a doctor that the employee was too sick to work, or
• The employee had prior approval by management to use PTO.¹⁰⁵

This policy was stated less succinctly and much more obscurely at the bottom of every Leave Request.¹⁰⁶ There was no provision for personal emergencies or any requirement that management approve PTO requests on a reasonable basis.¹⁰⁷

There were also verbal / actual policies throughout the Portland office which provided for liberal granting of PTO as well as working from home when appropriate for personal emergencies and personal commitments, but these policies were not generally in writing and were made on a case by case basis.¹⁰⁸ Unbeknownst to [Larry], these policies had been written (or posted electronically to be more precise) for Mr. Carr's department for the entire time Mr. Carr worked for YESMAIL, INC., but over the last year and a half the written policies had been changed on multiple occasions and applied very selectively (consistent with the case by case basis which [Larry] had testified to).¹⁰⁹ Further, these later revisions added restrictions of work to business hours, but again these restrictions were only applied on a case by case basis.¹¹⁰ The written policy which was being applied to Mr. Carr for PTO, working during business hours, and working from home made no provisions for personal emergencies or personal commitments.

While [Larry] was confident that no such unreasonable demands were being made on Mr. Carr, he was not privy to the prior meetings between Mr. Carr and [John]. Further, when it was pointed out that the written document which he had presented to Mr. Carr, the Final Written Warning, did, in fact, insist on working only during business hours and restricting working from home without exception,¹¹¹ [Larry] expressed surprise at this.¹¹² However, as he had had this document for many months and was well aware of Mr. Carr's belief that it precluded any flexibility for personal emergencies or commitments, it is hard to believe he had not previously noticed that it said exactly what Mr. Carr had alluded. It brings to mind that previously [Larry] had been complicit in [John]'s scheme to illicitly (and possibly illegally) violate the published company policy on PTO.¹¹³ Given that [Larry] had no actual knowledge of the discussions between Mr. Carr and [John] (he simply expressed confidence without any actual facts to support it) and Mr. Carr was responding to written documents which he had requested access to, but which had not received, it is absurd that Judge Smith should conclude that [Larry] was presenting an accurate statement of the policies being imposed on Mr. Carr and Mr. Carr was incorrect.¹¹⁴

3.2 Prior Approval of PTO

For the first few years that Mr. Carr had worked for YESMAIL, INC., the approval process for PTO was that each individual would write the dates when they would be away on a paper calendar with restrictions that there could never be two people out on the same date and that during the busy season (preceding the holiday season) no one could be out for more than a day at a time. Working from home was restricted to one day every two weeks with a similar restriction that two people could not be working from home on the same day.¹¹⁵ Personal commitments were handled by the employee scheduling PTO or working from home on their own within the constraints mentioned previously. In the event of a personal emergency, the employee was expected to notify the rest of the department and work load was adjusted as necessary. The employee could work from home or use PTO as appropriate for the emergency. If PTO was used, the 'approval' paperwork was submitted shortly before or shortly after its usage so that the appropriate entries could be added to the payroll system.¹¹⁶

However, as customers were migrated from the Jaguar system onto the Enterprise system, there were numerous separations amongst the department staff. In a reorganization, [John] was made manager of the department, but with only three members remaining.¹¹⁷ Within a few months two of these three were separated so that the department was reduced to just Mr. Carr and [John]. At that time Mr. Carr reached the limit on accrued PTO and suggested to [John] that Mr. Carr take PTO on a regular basis, perhaps one day every two weeks to minimize impact to the workload while creating a buffer in the event that extenuating circumstances came up. [John] responded that no PTO would be approved as long as they were short staffed, but he also noted that there no plans to address the staffing situation.¹¹⁸ Mr. Carr did not agree that this was a reasonable alternative as it entailed him losing PTO as is discussed in '1.8 Accuracy of Witnesses' on page 25. While the InfoGroup policy on PTO did not require [John] to ever grant PTO, it permitted Mr. Carr to submit written requests for PTO, so Mr. Carr submitted numerous written requests in order to document that he had requested to use any PTO which he might eventually lose.¹¹⁹ It was Mr. Carr opinion that, while the written company policies did not ever require managers to approve PTO, the company was, in fact, legally required to approve PTO on a reasonable basis.

[John] proceeded to deny all these requests, inventing new requirements along the way. For example, when [John] stated that all PTO requests had to be submitted at least two weeks in advance,¹²⁰ Mr. Carr proceeded to fill out requests for one day every two weeks for the next 90 days (the leave request form itself precluded requests more than 90 days in the future), but [John] said that he would deny those which were submitted too far in advance as well (adding restrictions beyond the 90 days already specified by InfoUSA).¹²¹

[John] also refused to sign (neither approving or disapproving) several requests because the 'Remaining' field was incorrect.¹²² As there were no instructions on the meaning of that field or how to complete it (it was presumed to be the PTO balance after the requested leave was taken), Mr. Carr did not understand how it could be incorrect. Further, Mr. Carr could trivially think of at least a dozen different ways to compute some value for that field and, as they were all speculative, none of them were anything more than a guess as there were important factors beyond the control of the requester. Mr. Carr assumed that the purpose of that field was to alert the manager of two problem situations, when the PTO balance was close to zero and when it was close to 200, the upper limit. The accounting department certainly did not rely on that value and so an approximate value was quite sufficient. When Mr. Carr made corrections listing the 'Remaining' amount as unknown, [John] then refused to sign (neither approving or disapproving) because there were 'scratch outs', insisting that Mr. Carr resubmit corrected Leave Requests.¹²³

When Mr. Carr was close to actually losing PTO due to the denied leave requests, it appears that [John] reconsidered whether he had the authority to deny all PTO requests indefinitely and began granting requests sufficient that Mr. Carr would not lose PTO, but any decisions were made only a day or two in advance (making the two week in advance requirement completely superfluous). Indeed, of the six requests included in the record, five were refused and only one was granted. Further, that request was submitted at [John]'s request when he said that Mr. Carr could have tomorrow off if he wanted. When Mr. Carr had asked for a Friday off to create a long weekend to visit Seattle where his brother from Texas was visiting and while the Karmapa¹²⁴ was visiting, rather than directly approving or refusing the request, [John] simply left the request pending on his desk for weeks so that Mr. Carr could not make any plans.¹²⁵

The net effect was that PTO was reduced to being of almost no value for the purpose of personal commitments or vacation as there was no ability to plan and schedule events. Mr. Carr had to rely exclusively on working from home and flexible work hours to handle personal commitments and emergencies.

Indeed, if there really was a misunderstanding as purported by [Larry] where Mr. Carr was responding to the written policies which provided no flexibility for personal commitments and emergencies¹²⁷ while [Larry] was considering the verbal policies which provided for liberal access to PTO for these personal commitments and emergencies,¹²⁸ then YESMAIL, INC. had the very simple option of offering Mr. Carr a position, even his previous position, but with those policies clearly spelled out. If Mr. Carr declined this position, then it would be clear that he had left voluntarily left without good cause and was not eligible for unemployment benefits. However, while Mr. Carr's position on this matter has been known to YESMAIL, INC. for at least two months (and Mr. Carr would argue for almost six months) no job offer has been received by Mr. Carr to date.

3.3 Misconduct

If Mr. Carr was discharged by YESMAIL, INC., the question before this court is if he was guilty of misconduct. OAR 471-030-0038 (3) states:

a willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee is misconduct. An act or series of actions that amount to a willful or wantonly negligent disregard of an employer's interest is misconduct.

The 'right to expect' is critical in this matter. [Larry] readily acknowledged that it was not reasonable to expect that an employee work within specified hours at a specified location without regard to personal commitments and emergencies.¹²⁹ Indeed, one of the dangers of having a corporate written policy which makes no provisions for these personal requirements is that they must be provided for on an ad hoc, case by case basis in a verbal or otherwise informal manner. Unfortunately this reliance on ad hoc provisions for personal commitments and emergencies permits isolated incidents of strict enforcement of the intrinsically unreasonable written policies, which was the case here.

When Mr. Carr was faced with an unreasonable 'standard of behavior' at a 'one on one' meeting, he verbally expressed his concerns and received a verbal response of 'I'll get back to you on this'¹³⁰ which is at best an ambiguous 'standard of behavior' and expectations. In order to preserve the employer's interest as best possible while providing for personal commitments and emergencies, Mr. Carr continued to abide by the 'work from home' and flexible work hour guidelines as he understood them to be.¹³¹ At no time did Mr. Carr violate any standard of behavior which an employer has the right to expect of an employee nor did he fail to preserve the employer's interest.

3.4 Good Cause

If this court finds that Mr. Carr voluntarily left work, the question becomes whether or not there was good cause for his leaving. OAR 471-030-0038 (4) states:

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 all individuals, the reason must be of such gravity that the individual has no reasonable alternative but to leave work.

While it is true that Mr. Carr was never asked to sign the document in front of him, it was clear to him that he was being asked to agree that he would be at work by 9AM Monday through Friday no matter what.¹³² For Mr. Carr, verbal agreement is as binding as written agreement, and he could not see how he could meet this unrealistic standard which had been presented to him in writing. Even if Mr. Carr had been able to reschedule his personal commitment for the next morning, there is no way that Mr. Carr could have guaranteed that he would be able to be at work at 9AM, cars break down, buses don't come. Further, Mr. Carr could not imagine how he could schedule any personal commitment in the future given the difficulties he had had in getting approval for PTO. In his mind he would call the doctor's office to make an appointment, choose a time that fit in his schedule (no conflicting business requirements) as well as the doctor's, and then submit a PTO request which would likely be refused the day before the appointment, requiring Mr. Carr to reschedule the doctor's appointment in a most irresponsible fashion. These were the untenable circumstances that ran through Mr. Carr's head during this meeting. Had [Larry] or [John] suggested any reasonable alternative, one that Mr. Carr felt that he could live up to, Mr. Carr would have agreed to them. However, Mr. Carr could not in good conscience claim that he would abide by a written policy which he did not believe was workable. His steadfast refusal to agree to that written policy (one which [Larry] seems to have never reviewed) is what prompted [Larry] to ask Mr. Carr for his keys and terminated all further discussion.

While it is certainly true that Mr. Carr takes his word much more seriously than most in our society and does have a strong preference for written policies which he tends to interpret quite literally, these tendencies are hardly unreasonable. Mr. Carr would argue that they are, in fact, the mark of a reasonable and prudent person. Common sense suggests that agreeing to things you do not believe is unwise and likely to result in problems. His steadfast refusal to agree to unrealistic written standards caused [Larry] to ask Mr. Carr for his keys at which time there was no reasonable alternative to leaving work.

Conclusion

As a minimum, this matter should be returned to the Office of Administrative Hearings to conduct the discovery required for Mr. Carr to support his allegations with written evidence. Further, if there is not sufficient evidence at this time to find against the employer, then the Claimant asks that this court find against the state for all claims which have been made to date as it was the lack of provisions for adequate discovery which have delayed a decision in this matter until this time. If the Office of Administrative Hearings does not have sufficient authority to provide the required discovery, this court is asked to transfer this matter to the Oregon Circuit Court or, if that is not feasible, transfer the matter to U.S. Federal District Court (the claimant will initiate the appropriate action and make the required motions).

While there is much needless contention in the record as to what actually happened in the final meeting of Mr. Carr with [John] and [Larry] on October 1, 2008 due to the passing of time and the vagaries of memory, a careful review of the evidence indicates that there is really little controversy over the critical points. It is agreed by all parties that [John] scheduled the meeting and set the agenda at such a time and under such circumstances as to minimize any chance of an amicable resolution to the issues. It is further agreed that while Mr. Carr suggested several alternatives to separation, [John] and [Larry] offered none and that it was [Larry] who asked Mr. Carr for his keys thereby ending further discussions as Mr. Carr was clearly being discharged and not permitted to work any more. On this basis, this court is asked to make a finding that Mr. Carr was discharged by YESMAIL, INC..

As to the issue of whether Mr. Carr was guilty of misconduct, all parties agree that the published written policies of YESMAIL, INC. are not reasonable on their face as they make no provisions for personal commitments and emergencies. It is also clear that YESMAIL, INC. is, in fact, required to grant reasonable requests to use earned PTO by the employee. It would be an obvious violation of labor laws to force the loss of earned PTO through the refusal to approve the use of PTO under reasonable circumstances. Further, when the written policies of YESMAIL, INC. are combined with written policies which strictly restrict the hours and locations for work, the otherwise reasonable requirement that the employee work a certain number of hours becomes unreasonable. All people in our society have commitments of various forms, some of which must be accomplished during normal business hours. Further, there will always be certain circumstances which can prevent an employee from being in a particular location at a particular time. The failure to provide for these personal commitments and emergencies in some fashion renders any such combination of policies unreasonable. Mr. Carr was not guilty of misconduct because his behavior was, in fact, within the standard of behavior which an employer has the right to expect and preserved his employer's interests as he was best able.

Were this court to find that Mr. Carr left YESMAIL, INC. voluntarily, this court is asked to find that he did so with good cause. It is not reasonable to expect any person to agree that he/she will meet requirements that he/she does not believe is possible. Mr. Carr consistently expressed his concerns about the feasibility of meeting the combination of the various written policies he was faced with and these concerns were well founded. There were no provisions for personal commitments or emergencies and Mr. Carr knew that these came up. While Mr. Carr suggested several alternatives to separation, [John] and [Larry] simply asserted that Mr. Carr must meet the written policies or have his failure interpreted as a resignation (if he was ever not present at work at 9AM on Monday through Friday, his absence would be interpreted as a resignation according to the document in front of him). Mr. Carr maintained that he did not believe he could meet those requirements (as any conscientious and literal person would) and this was unacceptable. He was asked to surrender his keys and leave, which he did. At no time was Mr. Carr presented with any alternative which would allow him as a responsible person to continue working for YESMAIL, INC.; Mr. Carr left with good cause.

I certify under penalty of perjury under the laws of the state of Washington and the United States that the foregoing is true and correct.¹³³

Certification

I certify under penalty of perjury under the laws of the United States and the state of Washington that on this date I mailed at true and accurate copies of this Written Argument with first class postage affixed to:

Employmnet Appeals Board
Employment Department
875 Union Street NE
Salem, OR 97311

YESMAIL, Inc.
ATTN: Larry xxxxxx
309 SW 6^th Ave, Ste 700
Portland, OR 97204-1709.