Faustin v. Emp. Dept.

274 October 28, 2026 No. 1045 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON Aurrin FAUSTIN, Petitioner, v. EMPLOYMENT DEPARTMENT and Serendipity Center, Inc., Respondents. Employment Appeals Board 2025EAB0590; A189445 Submitted October 6, 2026. Aurrin Faustin filed the brief pro se. Jona J. Maukonen waived appearance for respondent Employment Department. No appearance for respondent Serendipity Center, Inc. Before Ortega, Presiding Judge, Joyce, Judge, and O’Connor, Judge. JOYCE, J. Affirmed. Nonprecedential Memo Op: 354 Or App 274 (2026) 275 JOYCE, J. Claimant, appearing pro se, appeals from a final order of the Employment Appeals Board (board) determin- ing that employer had discharged claimant for misconduct and, therefore, claimant was disqualified from receiving unemployment benefits. Neither employer nor the depart- ment appear on appeal. Concluding that the board’s deci- sion is supported by substantial evidence and substantial reason, we affirm. Having considered claimant’s brief and the per- tinent parts of the record identified by claimant, we are unpersuaded that the board committed reversible error. In reaching that conclusion, we note that we have limited our review to claims of error that are properly presented in the opening brief. It is an appellant’s duty to identify the specific ruling(s) challenged on appeal, show us that the claims of error were adequately preserved, and provide a cogent argu- ment that conforms to the applicable standard of review and is supported by legal authority and citations to the appel- late record.1 Although we recognize the challenges inher- ent in appearing pro se in an appellate court and may show some leniency toward technical deficiencies up to a point, we cannot step out of our role as neutral arbiter to “make or develop a party’s argument.” Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259 (2003); see also Briggs v. Lamvik, 242 Or App 132, 142 n 9, 255 P3d 518 (2011) (stating similar). With that limitation in mind, we have considered claimant’s arguments, and we are unpersuaded that the board erred in the ways claimed. We review the board’s order for “substantial evidence, substantial reason, and errors of law.” Barrera v. Employment Dept., 333 Or App 673, 675, 553 P3d 48 (2024). 1 See, e.g., ORAP 5.45(3) (“Each assignment of error must identify precisely the legal, procedural, factual, or other ruling that is being challenged.”); ORAP 5.45(4)(a) (“The court may decline to consider any assignment of error that requires the court to search the record to find the error or to determine if the error properly was raised and preserved.”); ORAP 5.45(5) (standard-of-review requirements). 276 Faustin v. Emp. Dept. As we understand his arguments on appeal, claim- ant first contends that the board erred when it refused to consider the entirety of the written argument that he filed on October 10, 2025. We disagree. The board found that the written argument contained information that was not part of the hearing record and declined to consider that new evi- dence because claimant did not show that factors or circum- stances beyond his reasonable control prevented him from offering the evidence during the hearing. See OAR 471-041- 0090(1)(b) (the board may consider evidence that was not received into the hearing record when the party offering the additional evidence establishes both that “[t]he additional evidence is relevant and material to [the board’s] determi- nation” and that “[f]actors or circumstances beyond the par- ty’s reasonable control prevented the party from offering the additional evidence into the hearing record”). Although claimant now seems to argue on appeal that such factors and circumstances did exist, our review is confined to the record that was before the board. See ORS 183.482(7). We have reviewed the record, including claimant’s October 10 filing, and conclude that the board’s finding that claimant had not demonstrated that there were factors or circum- stances beyond his control that prevented him from offering the evidence during the hearing is supported by the evi- dence in the record. The board correctly determined that it could only consider claimant’s October 10 filing to the extent it was based on the hearing record. We next understand claimant to argue that several of the board’s findings, as articulated in the board’s findings of fact, were not supported by the evidence. Having reviewed the record, we conclude that the board’s findings are sup- ported by substantial evidence in the record. To the extent claimant is challenging the board’s ultimate finding that employer terminated claimant due to his behavior follow- ing feedback about emails claimant had sent, that finding is also supported by substantial evidence. Turning to claimant’s final argument, we under- stand him to contend that the board incorrectly found that claimant violated employer’s attendance notice policy. The board found that employer’s written attendance policy Nonprecedential Memo Op: 354 Or App 274 (2026) 277 stated, in part, that employees were “expected to personally notify [their] supervisor” if they were not able to report for work on time. The board also found that claimant’s super- visor informed him on April 2 that claimant was expected to notify his supervisor about absences, and that claimant nonetheless did not notify his supervisor of his absence on April 7. Claimant does not contest any of those findings. Instead, claimant largely focuses on the wording of employ- er’s written policy and argues that an expectation is not the same as a requirement, such that the board incorrectly found that claimant violated the policy when he called the receptionist instead of his supervisor to report his inabil- ity to come to work on April 7. However, the board’s find- ings that employer had a policy that employees must con- tact their supervisor to notify them of an absence and that claimant violated that policy when he failed to notify his supervisor about his absence on April 7 are all supported by substantial evidence. Affirmed.