Leung v. Employment Dept.
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FILED: November 13, 2014 IN THE COURT OF APPEALS OF THE STATE OF OREGON WAI PO LEUNG, Petitioner, v. EMPLOYMENT DEPARTMENT, Respondent. Employment Appeals Board 12AB1262 A151956 Argued and submitted on January 03, 2014. John D. Burgess argued the cause and filed the brief for petitioner. Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge. NAKAMOTO, J. Reversed and remanded. DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS Prevailing party: [X] [ ] [ ] Petitioner No costs allowed. Costs allowed, payable by Costs allowed, to abide the outcome on remand, payable by 1 NAKAMOTO, J. 2 Claimant seeks judicial review of a final order of the Employment Appeals 3 Board (EAB). The EAB affirmed the administrative law judge's (ALJ) denial of 4 claimant's late request for a hearing concerning his right to extended unemployment 5 insurance benefits that he had already received. Claimant, who is a native Cantonese 6 speaker, contends that the Employment Department (department) failed to follow its 7 policy on assisting claimants with limited English language proficiency. He contends 8 that those circumstances met the "good cause" standard for late hearing requests in OAR 9 471-040-0010(1). We reverse and remand. 10 11 I. FACTS AND PROCEDURAL HISTORY Agency findings of fact, unless challenged, are assumed to be correct on 12 review. Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 134, 903 P2d 351 13 (1995). The unchallenged findings of the EAB in this case are as follows: Claimant's 14 native language was Cantonese. Although he had lived and worked in the United States 15 for approximately thirty years, he spoke broken English. He could "listen pretty good" in 16 English, but reading English was a "problem." He sometimes had his wife assist him 17 with English communications. 18 Claimant filed an initial claim for unemployment insurance benefits in 19 February 2009. When payment on his claim for regular benefits was exhausted, he filed 20 for, and was paid, extended benefits. However, the department later determined that he 21 was not entitled to those extended benefits. In March 2011, claimant received a written 1 1 decision from the department to that effect, in English. 2 Within the time period allowed for a hearing request, claimant took the 3 2011 decision to a local office of the department, where a department employee 4 explained to him that he could request a hearing on the decision. Claimant therefore 5 understood that he had been denied extended benefits and that he could request a hearing 6 on the denial, but he did not comprehend the full legal effect of the decision, namely, that 7 he would have to repay the extended benefits that he had received. Claimant filled out a 8 hearing request form but never filed it. 9 Ten months later, in 2012, claimant received a notice from the department 10 stating that he had to repay the extended unemployment insurance benefits that he had 11 received. Once he received the repayment notice, claimant filed a late request for a 12 hearing on the department's March 2011 decision that he was ineligible for the extended 13 benefits. 14 The administrative record reveals the following procedural history. 15 Claimant appeared at two hearings regarding whether he had good cause for the lateness 16 of his 2012 hearing request; the second hearing was scheduled so that claimant could 17 have an interpreter. Claimant represented himself at both hearings. He did not introduce 18 a copy of the department's "limited English proficient" (LEP) policies as an exhibit. A 19 representative of the department appeared and testified, but no party presented testimony 20 from the department's employee in its Albany office who had spoken with claimant about 21 the March 2011 decision. The ALJ determined that claimant had not shown good cause 2 1 to extend the time he had to request a hearing to challenge the department's March 2011 2 decision that he was ineligible for the extended benefits. 3 Claimant appealed the ALJ's decision to the EAB. Before the EAB, 4 claimant focused on the terms of OAR 471-040-0010(2), specifically, whether the 5 department had failed to follow its policies regarding claimants who are LEP by failing 6 "to communicate orally or in writing in a language that could be understood" by him 7 "upon gaining knowledge" that he "needed or was entitled to such assistance." The EAB 8 affirmed, although it concluded that claimant had limited English proficiency. 1 The term 9 "limited English proficient person" is defined, for purposes of the department's contested 10 case proceedings, as "a person who, by reason of place of birth, national origin, or 11 culture, speaks a language other than English and does not speak English at all or with 12 adequate ability to communicate effectively in the proceedings." OAR 471-040- 13 0007(2)(a). 14 The EAB concluded that claimant had failed to demonstrate the 15 department's violation of its policy for providing services to persons who are LEP: 16 17 18 19 20 "Claimant failed to show the Department had, much less failed to follow, an LEP policy requiring its representatives to explain to claimant he would 'not be able to challenge any future attempt to collect' unless he appealed its decision, or knew claimant 'needed or was entitled' to translation, interpretive, or other LEP services it failed to provide." 21 The EAB found that claimant "did not assert or show he asked the Department in March 22 2011 'to communicate orally or in writing' in Cantonese." Rather, the EAB observed, 1 We reject the department's argument on review that no evidence in the record establishes that claimant was an LEP person. 3 1 "his testimony as to the advice he sought and was given" in the Albany office "was very 2 vague." 3 The EAB also noted that many claimants, both those who are native 4 English speakers and those who are not, do not understand that a failure to appeal a 5 notice of ineligibility for benefits received will have an adverse legal consequence: the 6 ineligibility determination will become final and binding and the claimant will have to 7 repay the benefits received. The EAB then concluded that "it does not appear claimant 8 was prevented from meeting the 20-day deadline by his failure to understand the deadline 9 existed." Rather, the EAB concluded that, like many other claimants, claimant was 10 operating under a misunderstanding of the legal effect of the March 2011 decision. 11 II. ANALYSIS 12 On review, claimant and the department dispute whether claimant met his 13 burden to establish good cause for an extension of time to request a hearing. We review 14 the EAB's final order to determine whether it is supported by substantial evidence in the 15 record. ORS 183.482(8)(c). We also review an agency's interpretation of law for legal 16 error. ORS 183.482(8)(a). We accord an agency's interpretation of its own 17 administrative rule deference; we will affirm "if the interpretation is plausible and is not 18 inconsistent with the wording of the rule itself, with the rule's context, or with some other 19 source of law." Stroeder v. OMAP, 178 Or App 374, 380, 37 P3d 1012 (2001); accord 20 Crystal Communications, Inc. v. Dept. of Rev., 353 Or 300, 311, 297 P3d 1256 (2013). 21 Under ORS 657.875, the period for a claimant to request a hearing to 4 1 challenge a determination regarding unemployment insurance benefits "may be extended, 2 upon a showing of good cause therefor." The department's rule that governs whether a 3 claimant can show "good cause" for extension of the period for requesting a hearing 4 provides: 5 6 7 "(1) 'Good cause' exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant's reasonable control. 8 "* * * * * 9 "(b) Good cause does not include: 10 "* * * * * 11 12 "(B) Not understanding the implications of a decision or notice when it is received. 13 14 15 16 17 18 19 20 "(2) Notwithstanding section (1) of this rule, good cause for failing to file a timely request for hearing shall exist when the appellant provides satisfactory evidence that the Employment Department failed to follow its own policies with respect to providing service to a limited English proficient person, including the failure to communicate orally or in writing in a language that could be understood by the limited English proficient person upon gaining knowledge that the person needed or was entitled to such assistance." 21 OAR 471-040-0010. Under the plain meaning of the text of OAR 471-040-0010(2), a 22 claimant has the burden to prove the facts necessary to meet the requirements for the 23 "good cause" exception based on the department's failure to follow its own LEP policies. 24 However, the EAB explained in its decision in this case that OAR 471-040-0010(2) "does 25 not require a causal connection between the Department's failure to follow its LEP 26 policies and the missed filing deadline." 27 On review, the department acknowledges that it does have an LEP policy 5 1 and has appended its applicable policy to its brief. Under a section entitled "Staff 2 Responsibilities," the policy provides that departmental staff will be trained and should 3 try to determine whether a customer needs language assistance: 4 "Training 5 6 7 8 9 "New staff will complete an online Universal Access training within the first 30 days of their employment. Instructional information offered is to acquaint new employees to the federal LEP Policy Guidelines, ADA laws and accessing contracted language services provided to staff. Certification will be issued upon completion of the online training. 10 "Customer Interaction 11 12 13 14 15 16 "Employment Department staff should make every attempt to determine whether a customer is in need of interpretive services. Staff should contact a qualified bilingual staff member if available to assist. If qualified staff are not available, use the 'Language Line Identification Cards' to determine the language spoken. The Language Line can then be used for interpretive services." 17 (Boldface in original.) Under a section entitled "Management Responsibilities," the 18 department's LEP policy in part provides: 19 "Written Communication 20 21 22 23 24 25 "All written communication mailed to LEP customers regarding agency services and programs such as Business & Employment Services, Child Care, Office of Human Resources, Tax, Workforce & Economic Research, and Unemployment Insurance--including benefits information, adjudication, or hearings decisions--will include a multi-language service insert offering language services at no cost to the LEP customer." 26 27 (Boldface in original.) The parties' specific dispute concerns whether claimant met the proof 28 requirements in OAR 471-040-0010(2). Claimant argues that the EAB's decision was not 29 supported by substantial evidence. He contends that the evidence instead established that 6 1 the department knew that he needed language assistance, asserting that the department (1) 2 knew that he did not understand the decision and asked the department's office in Albany 3 for help in understanding it and (2) knew that he was not a native or skilled English 4 speaker when he spoke in limited, broken English with a department employee about the 5 March 2011 decision (as evidenced by the ALJ having rescheduled the hearing so that he 6 could have an interpreter). Nevertheless, he asserts that, despite his LEP status and his 7 limited English skills when he orally communicates, the department indisputably failed to 8 determine whether he needed interpretive services and failed to communicate with him in 9 Cantonese. Claimant argues that he left the department's office in Albany understanding 10 that "he was not going to receive any more benefits, but for reasons which were obscure 11 to him." 2 12 The department first responds that claimant's challenge fails because he did 13 not prove in the first place that the department had an LEP policy. 3 We reject that 14 argument because the department's own rule concerning good cause, OAR 471-040- 15 0010(2), indicates that the department has an LEP policy, which it acknowledges, as 2 At his hearing before the ALJ, claimant testified that "I do not quite fully understand how the system work from the beginning to the end and I thought that because my benefit had ended, so I thought that I should not continue to file to the government and the time of the offices." 3 Given that a claimant need not prove causation, we reject the department's argument that claimant was required to prove that the LEP policy required the kind of information in his native Cantonese language that the EAB ruled would have prompted him to decide to request a hearing, namely, an explanation of the legal consequences of the March 2011 ineligibility decision. 7 1 noted earlier. 2 Rather, whether claimant established good cause for his late hearing request 3 turns on whether the department followed its LEP policies to provide language assistance 4 "upon gaining knowledge" that he "needed or was entitled to such assistance," as 5 provided in OAR 471-040-0010(2). That is because the only possible findings on this 6 record are that (1) claimant is an LEP person, as the EAB determined, and (2) the 7 department failed "to communicate orally or in writing" with claimant in his native 8 Cantonese. 9 On that key issue, the parties differ regarding what "knowledge" claimant 10 was required to prove under the department's "good cause" rule and, accordingly, whether 11 claimant met his burden of proof given the evidence in the record. In determining the 12 meaning of an administrative rule, we "determine the meaning of the words used, giving 13 effect to the intent of the enacting body." Abu-Adas v. Employment Dept., 325 Or 480, 14 485, 940 P2d 1219 (1997). We normally do so by considering "the text of the rule and its 15 context, including other portions of the rule and related laws, and the rule's adoption 16 history." Brand Energy Services, LLC v. OR-OSHA, 261 Or App 210, 214, 323 P3d 356 17 (2014). In this case, although the parties both contend that we should interpret the rule 18 simply by considering the text of OAR 471-040-0010(2), we consider the text of the rule 19 in context, specifically, in context with the department's LEP policy and federal law 20 requiring the department to provide access to LEP persons. 21 The department contends that OAR 471-040-0010(2) should be understood 8 1 to require a claimant to prove that the department knew both (1) that the claimant was a 2 limited English language person and (2) that the claimant was "in need of interpretive 3 services in a particular language." To prove the latter, the department asserts that 4 claimant had to, but failed to, prove that he "expressed a language preference or asked the 5 department to communicate with him in Chinese." In light of the rule's text and context, 6 we decline to accept the interpretation of the knowledge requirement that the department 7 advances. 8 9 The text of the rule itself does not support the department's interpretation. By its terms, OAR 471-040-0010(2) requires a claimant to prove that the department 10 "failed to follow its own policies with respect to providing service to a limited English 11 proficient person." The department's rule also provides that a sufficient showing includes 12 proof of the department's "failure to communicate orally or in writing in a language that 13 could be understood by the limited English proficient person upon gaining knowledge 14 that the person needed or was entitled to such assistance." The rule does not state that a 15 claimant must prove that the department knew that the claimant was an LEP person. 16 Rather, under the plain meaning of the text, a claimant who is an LEP person can prove a 17 failure to follow the LEP policy by proving that the department gained "knowledge" that 18 the claimant "needed or was entitled to" oral or written language assistance. In other 19 words, whether the claimant is an LEP person is separate from whether the department 20 gained knowledge that the claimant "needed or was entitled" to assistance. Thus, the 21 department's proffered interpretation appears to be inconsistent with the wording of the 9 1 2 rule itself. As for the department's position that a claimant must prove that he or she 3 expressed a language preference or asked the department to communicate in a particular 4 language, we again disagree that the department posits a plausible interpretation. The 5 department's interpretation does not comport with the text of the rule, which does not 6 require proof of any request on the part of the claimant or customer. Instead, the rule 7 indicates that it is department policy to provide language assistance "upon gaining 8 knowledge" that the claimant or customer needs or is entitled to such assistance. 9 The ordinary meaning of the transitive verb "gain" is "to get or attain to 10 possession" or to "cause to be obtained or given." Webster's Third New Int'l Dictionary 11 928 (unabridged ed 2002). Thus, to "gain" something, such as knowledge, suggests, at 12 least in some usages, some activity on the part of the actor to get or attain that thing. The 13 ordinary meaning of "knowledge" includes "the fact or condition of being cognizant, 14 conscious, or aware of something," such as knowledge "of what she had had to endure" 15 or the knowledge "that it was really important." Webster's at 1252. Although the 16 department could "gain knowledge" of a customer's need for language assistance by way 17 of a customer's request that the department communicate in a particular foreign language, 18 the department's rule is not couched in such specific, limited terms and suggests instead 19 that the department may get the knowledge or cause such knowledge to be obtained in 20 other ways, such as by engaging in communication with the customer and observing 21 limited English proficiency. 10 1 Context supports our analysis of the text of OAR 471-040-0010(2). The 2 department's proffered interpretation contradicts the terms of its LEP policy, which is 3 referenced in the rule and therefore provides context for understanding the rule. The LEP 4 policy states that "[d]epartment staff should make every attempt to determine whether a 5 customer is in need of interpretive services." The LEP policy thus does not require 6 customers to ask for an interpreter, nor does it require department employees to 7 determine whether a customer is an LEP person. The policy simply requires the 8 department's employees to determine whether the customer needs interpretive services. 9 The department's LEP policy also requires a multi-language insert "offering 10 language services at no cost." That written-communication provision does not depend on 11 customer or claimant request. That part of the LEP policy is further evidence that the 12 department does not require customers or claimants to request specific language 13 assistance in order for the department to fail to follow its LEP policy. 4 14 Moreover, states have an obligation to provide meaningful access to their 15 unemployment insurance programs for individuals with limited English proficiency. See 16 Section 601 of Title VI of the Civil Rights Act of 1964, codified at 42 USC § 2000d ("No 17 person in the United States shall, on the ground of race, color, or national origin, be 18 excluded from participation in, be denied the benefits of, or be subjected to 19 discrimination under any program or activity receiving Federal financial assistance."); 4 The March 2011 decision that claimant sought to challenge late had no such multilanguage insert, as the administrative record reveals. 11 1 Lau v. Nichols, 414 US 563, 568-69, 94 S Ct 786, 39 LEd 2d 1 (1974) (holding that 2 prohibited national origin discrimination under Title VI includes failing to provide LEP 3 individuals with meaningful access to recipient programs). A "program or activity" or 4 "program" in 42 USC section 2000d refers to "all of the operations of," among other 5 things, "a department, agency, special purpose district, or other instrumentality of a State" 6 or "the entity of such State * * * government that distributes such assistance and each 7 such department or agency (and each other State * * * government entity) to which the 8 assistance is extended, in the case of assistance to a State * * * government." 42 USC § 9 2000d-4a(1). The unemployment compensation program is a longstanding federal-state 10 program; Oregon enacted its unemployment compensation law in 1935. Puget Sound B. 11 & D. Co. v. S. U. C. C., 168 Or 614, 620, 126 P2d 37 (1942). 12 The department, therefore, has an obligation to provide LEP individuals 13 with access to its unemployment compensation program. The department recognizes that 14 obligation, as evidenced by the department's LEP policy. The department's LEP policy 15 states that federal laws, including Title VI and Executive Order 13166, 65 Fed Reg 50121 16 (Aug 11, 2000), were applied to the policy. 17 We thus do not view the department's LEP policy provision regarding 18 "Customer Interaction" and its wording that "[d]epartment staff should make every 19 attempt to determine whether a customer is in need of interpretive services" and "should 20 contact a qualified bilingual staff member if available to assist" as merely precatory. 21 Rather, we consider the department's rule that good cause for a late hearing request will 12 1 exist when an LEP person has not been given language assistance in violation of the 2 department's LEP policies in the context of the department's obligation under federal law 3 to provide persons with limited English proficiency meaningful access to the 4 unemployment insurance program. In that light, and given the LEP policy itself and 5 ordinary meanings of the words "gain" and "knowledge" used within the rule, we 6 conclude that the phrase "gaining knowledge that the person needed or was entitled to 7 such [language] assistance" in OAR 471-040-0010(2) refers to the department's 8 knowledge or awareness, obtained by any means, that the person needed or was entitled 9 to oral or written language assistance. We remand for reconsideration under the correct 10 11 understanding of OAR 471-040-0010(2). Reversed and remanded. 13
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