STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION DOCKET NO. AP-16-05
DONALD C. BARRY, ) ) Petitioner ) ) ) ORDER ON RULE SOC APPEAL UNEMPLOYMENT INSURANCE ) COMMISSION, ) ) Respondent. )
I. Background
Petitioner Barry was employed full-time by Employer SAPPI paper mill
from 1986 to November 15, 2014. (R. at 32). Barry's final rate of pay was $31.00
per hour. (R. at 32).
The Employer had a policy requiring employees to call to report an
absence prior to the start of their shift. (R. at 32). The employer's rules were
written in the labor agreement which was distributed to all employees. (R. at 32).
On March 26, 2014, Barry failed to call in prior to the start of his shift and
was absent. (R. at 33). Barry was hospitalized and unconscious due to
pancreatitis and diabetes. Id. He called in as soon as he awoke at approximately
7:00 am. Id. The Employer issued him a written warning. (R. at 33).
On May 2, 2014, the Employer issued Barry another written warning and a
one-day suspension for failing to call out or appear for his scheduled shift. (R. at
33). Barry did not wake up to his alarm because of his alcoholism. (R. at 33).
Again, due to his alcoholism, Barry did not show up for his shift or call in
early on August 18, 2014. (R. at 33). At that time, the Employer gave Barry a Last
1 Chance Agreement. (R. at 33). The Last Chance Agreement stated that Barry's
employment would be terminated for any future policy violations in the next
two years. (R. at 33). At that time, the Employer suggested that Barry seek
treatment for his alcoholism. (R. at 33).
On November 16, 2014, Barry did not show up for work or call out in
advance because of his alcoholism. (R. at 33). Barry informed the Employer a few
days thereafter that he was pursuing long-term alcohol treahnent. (R. at 33).
Barry was hospitalized in Maine for eight days. (R. at 33). The Employer helped
Barry find an out of state treatment facility and put Barry on unpaid family
medical leave. (R. at 33).
Barry returned from treatment and met with the Employer on January 12,
2015, to discuss and investigate the absence on November 16, 2014. (R. at 33). On
February 2, 2015, the Employer terminated Barry's employment for poor
attendance and failure to notify the Employer of his absences. (R. at 33).
Barry's application for unemployment was denied on March 30, 2015. (R.
at 78-79). Barry appealed to the Division of Administrative Hearings, which held
a hearing on April 27, 2015. (R. at 36-74). On May 6, 2015, the Hearings Officer
issued a determination affirming the denial of benefits based upon a finding of
misconduct pursuant to 26 M.R.S. § 1043(23). Upon appeal to the State of Maine
Unemployment Insurance Commission (the "Commission"), the Commission
issued a determination on September 29, 2015, affirming and adopting the
Hearing Officer's decision, with additional findings and reasoning. (R. at 22-27).
Barry requested reconsideration of the Commission's decision. (R. at 5-14). The
Commission issued a decision upholding the September 29, 2015 decision, and
making certain additions and modifications. (R. at 1-4).
2 Barry filed for administrative review of the Commission's decision with the
Superior Court. Barry seeks an order reversing the Commission's decision
finding that he was discharged for misconduct and therefore ineligible to receive
unemployment insurance benefits.
II. Standard of Review
When the Court reviews a decision of the Maine Unemployment Insurance
Commission, its review "is limited to determining whether the Commission
correctly applied the law and whether its fact findings are supported by
competent evidence." McPherson Timberlands v. Unemployment Ins. Comm'n, 1998
ME 177, Cf[ 6, 714 A.2d 818. This standard of review "is identical to the 'clear
error' standard used by the Law Court." Gulick v. Bd. of Envtl. Prat.!/ 452 A.2d
1202, 1207-08 (Me. 1982). The Court must not disturb the decision of the
Commission "unless the record before the Commission compels a contrary
result." Id; see also Gerber Dental Ctr. v. Maine Unemployment Ins. Comm'n, 531
A.2d 1262, 1263 (Me. 1987). The Court must examine the entire record in order to
determine whether the Commission could fairly and reasonably find the facts as
it did. See 5 M.R.S.A. § 11007(4)(C)(5); Clarke v. Maine Unemployment Ins. Comm'n,
491 A.2d 549, 552 (Me. 1985).
The burden is on the petitioner to prove that "no competent evidence
supports the [agency's] decision and that the record compels a contrary
conclusion." Bischoff v. Maine State Ret. Sys., 661 A.2d 167, 170 (Me. 1995)
(citation omitted); see also Seven Islands Land Co. v. Maine Land Use Regulatory
Comm'n, 540 A.2d 475, 479 (Me. 1982). Additionally, the Court may not
substitute its judgment for that of the agency simply because the evidence could
3 give rise to more than one result. See Dodd v. Sec'y of State, 526 A.2d 583, 584 (Me.
1987); Gulick, 452 A.2d at 1209.
III. Discussion
An unemployed individual is disqualified from the receipt of
unemployment benefits where the individual was discharged for misconduct. 26
M.R.S. § 1193. Misconduct is defined as "a culpable breach of the employee's
duties or obligations to the employer or a pattern of irresponsible behavior,
which in either case manifests a disregard for a material interest of the
employer." 26 M.R.S. § 1043(23). The statute provides examples of acts or
omissions that are presumed to be misconduct including: "(2) Unreasonable
violation of rules that are reasonably imposed and communicated and equitably
enforced; ... (4) Failure to exercise due care for punctuality or attendance after
warnings" . 26 M.R.S. § 1043(23)(A). However, the statute also provides that
'"Misconduct' may not be found solely on: ... (2) Absenteeism caused by illness
of the employee or an immediate family member if the employee made
reasonable efforts to give notice of the absence and to comply with the
employer's notification rules and policies". 26 M.R.S. § 1043(23)(B).
The parties agree that Barry's employment was terminated. Barry
challenges the determination by the Commission upholding the Hearing
Officer's determination that Barry's employment was terminated for misconduct.
The Commission affirmed the Hearing Officer's reasoning that the Employer's
rule was reasonable and that "claimant's failure to show up to work as scheduled
and to contact the employer to notify them of his absence was a culpable breach
of his duties or obligations to the employer." (R. at 34). The Hearing Officer
4 found, and the Commission affirmed, that Barry's failure to call in or show up
for shifts after he was given warnings about this behavior displayed a "manifest
disregard for a material interest of the employer."
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STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION DOCKET NO. AP-16-05
DONALD C. BARRY, ) ) Petitioner ) ) ) ORDER ON RULE SOC APPEAL UNEMPLOYMENT INSURANCE ) COMMISSION, ) ) Respondent. )
I. Background
Petitioner Barry was employed full-time by Employer SAPPI paper mill
from 1986 to November 15, 2014. (R. at 32). Barry's final rate of pay was $31.00
per hour. (R. at 32).
The Employer had a policy requiring employees to call to report an
absence prior to the start of their shift. (R. at 32). The employer's rules were
written in the labor agreement which was distributed to all employees. (R. at 32).
On March 26, 2014, Barry failed to call in prior to the start of his shift and
was absent. (R. at 33). Barry was hospitalized and unconscious due to
pancreatitis and diabetes. Id. He called in as soon as he awoke at approximately
7:00 am. Id. The Employer issued him a written warning. (R. at 33).
On May 2, 2014, the Employer issued Barry another written warning and a
one-day suspension for failing to call out or appear for his scheduled shift. (R. at
33). Barry did not wake up to his alarm because of his alcoholism. (R. at 33).
Again, due to his alcoholism, Barry did not show up for his shift or call in
early on August 18, 2014. (R. at 33). At that time, the Employer gave Barry a Last
1 Chance Agreement. (R. at 33). The Last Chance Agreement stated that Barry's
employment would be terminated for any future policy violations in the next
two years. (R. at 33). At that time, the Employer suggested that Barry seek
treatment for his alcoholism. (R. at 33).
On November 16, 2014, Barry did not show up for work or call out in
advance because of his alcoholism. (R. at 33). Barry informed the Employer a few
days thereafter that he was pursuing long-term alcohol treahnent. (R. at 33).
Barry was hospitalized in Maine for eight days. (R. at 33). The Employer helped
Barry find an out of state treatment facility and put Barry on unpaid family
medical leave. (R. at 33).
Barry returned from treatment and met with the Employer on January 12,
2015, to discuss and investigate the absence on November 16, 2014. (R. at 33). On
February 2, 2015, the Employer terminated Barry's employment for poor
attendance and failure to notify the Employer of his absences. (R. at 33).
Barry's application for unemployment was denied on March 30, 2015. (R.
at 78-79). Barry appealed to the Division of Administrative Hearings, which held
a hearing on April 27, 2015. (R. at 36-74). On May 6, 2015, the Hearings Officer
issued a determination affirming the denial of benefits based upon a finding of
misconduct pursuant to 26 M.R.S. § 1043(23). Upon appeal to the State of Maine
Unemployment Insurance Commission (the "Commission"), the Commission
issued a determination on September 29, 2015, affirming and adopting the
Hearing Officer's decision, with additional findings and reasoning. (R. at 22-27).
Barry requested reconsideration of the Commission's decision. (R. at 5-14). The
Commission issued a decision upholding the September 29, 2015 decision, and
making certain additions and modifications. (R. at 1-4).
2 Barry filed for administrative review of the Commission's decision with the
Superior Court. Barry seeks an order reversing the Commission's decision
finding that he was discharged for misconduct and therefore ineligible to receive
unemployment insurance benefits.
II. Standard of Review
When the Court reviews a decision of the Maine Unemployment Insurance
Commission, its review "is limited to determining whether the Commission
correctly applied the law and whether its fact findings are supported by
competent evidence." McPherson Timberlands v. Unemployment Ins. Comm'n, 1998
ME 177, Cf[ 6, 714 A.2d 818. This standard of review "is identical to the 'clear
error' standard used by the Law Court." Gulick v. Bd. of Envtl. Prat.!/ 452 A.2d
1202, 1207-08 (Me. 1982). The Court must not disturb the decision of the
Commission "unless the record before the Commission compels a contrary
result." Id; see also Gerber Dental Ctr. v. Maine Unemployment Ins. Comm'n, 531
A.2d 1262, 1263 (Me. 1987). The Court must examine the entire record in order to
determine whether the Commission could fairly and reasonably find the facts as
it did. See 5 M.R.S.A. § 11007(4)(C)(5); Clarke v. Maine Unemployment Ins. Comm'n,
491 A.2d 549, 552 (Me. 1985).
The burden is on the petitioner to prove that "no competent evidence
supports the [agency's] decision and that the record compels a contrary
conclusion." Bischoff v. Maine State Ret. Sys., 661 A.2d 167, 170 (Me. 1995)
(citation omitted); see also Seven Islands Land Co. v. Maine Land Use Regulatory
Comm'n, 540 A.2d 475, 479 (Me. 1982). Additionally, the Court may not
substitute its judgment for that of the agency simply because the evidence could
3 give rise to more than one result. See Dodd v. Sec'y of State, 526 A.2d 583, 584 (Me.
1987); Gulick, 452 A.2d at 1209.
III. Discussion
An unemployed individual is disqualified from the receipt of
unemployment benefits where the individual was discharged for misconduct. 26
M.R.S. § 1193. Misconduct is defined as "a culpable breach of the employee's
duties or obligations to the employer or a pattern of irresponsible behavior,
which in either case manifests a disregard for a material interest of the
employer." 26 M.R.S. § 1043(23). The statute provides examples of acts or
omissions that are presumed to be misconduct including: "(2) Unreasonable
violation of rules that are reasonably imposed and communicated and equitably
enforced; ... (4) Failure to exercise due care for punctuality or attendance after
warnings" . 26 M.R.S. § 1043(23)(A). However, the statute also provides that
'"Misconduct' may not be found solely on: ... (2) Absenteeism caused by illness
of the employee or an immediate family member if the employee made
reasonable efforts to give notice of the absence and to comply with the
employer's notification rules and policies". 26 M.R.S. § 1043(23)(B).
The parties agree that Barry's employment was terminated. Barry
challenges the determination by the Commission upholding the Hearing
Officer's determination that Barry's employment was terminated for misconduct.
The Commission affirmed the Hearing Officer's reasoning that the Employer's
rule was reasonable and that "claimant's failure to show up to work as scheduled
and to contact the employer to notify them of his absence was a culpable breach
of his duties or obligations to the employer." (R. at 34). The Hearing Officer
4 found, and the Commission affirmed, that Barry's failure to call in or show up
for shifts after he was given warnings about this behavior displayed a "manifest
disregard for a material interest of the employer."
Barry disputes the determination that his employment was terminated for
misconduct. He does not dispute that he failed to call in or show up for his shift
on multiple occasions, however, he does dispute the finding that his absences
amounted to manifest disregard for the interests of the Employer. Barry argues
that his absences were because of an illness, namely alcoholism, and that his
efforts to contact the Employer as soon as he was able were reasonable.
Therefore, pursuant to the exception to disqualification for absences due to
illness found in 26 M.R.S. § 1043(23)(B), Barry argues that no competent evidence
supports the decision of the Hearing Officer.
The Court first looks to whether the determination that Barry's conduct
falls into a behavior listed in 26 M.R.S. § 1043(23)(A) as presumptively
misconduct is supported by evidence in the record. An unemployed individual
who is fired for "[u]nreasonable violation of rules that are reasonably imposed
and communicated and equitably enforced" presumptively was fired for
misconduct. See 26 M.R.S. § 1043(23)(B ). The Court has interpreted this to mean
that a finding of misconduct may follow determinations that an employer's rule
is objectively reasonable and that the employee acted unreasonably by failing to
comply with the rule. See Thompson v. Maine Unemployment Ins. Com., 490 A.2d
219, 222 (Me. 1985). Therefore, it is not enough that an employee violated a rule
for a finding of misconduct. The Commission must find that the employee acted
unreasonably under the circumstances. Moore v. Maine Dep 't ofManpower Affairs,
5 Employment Sec. Com., 388 A.2d 516, 519 (Me. 1978). The Court must look to the
employee's
objective manifestation of intent. It is not an essential of misconduct, as defined in the statute, that the employee have actual subjective intent to disregard the employer's interests. It is sufficient if the Commission justifiably determines that the employee's conduct was of a type, degree, or frequency that was so violative of employer interests that it may reasonably be deemed tantamount to an intentional disregard of those interests.
Sheink v. Maine Dep 't of Manpower Affairs, 423 A.2d 519, 522 (Me. 1980). The Law
Court has affirmed instances of negligent driving as misconduct. See Mcinnis v.
Maine Unemployment Ins. Comm'n, 513 A.2d 857, 859 (Me. 1986); Forbes-Lilley v.
Maine Unemployment Ins. Comm'n, 643 A.2d 377, 379 (Me. 1994). The Courts have
also found that findings of misconduct were supported where an employee
refused to follow the employer's instructions (Connolly v. Maine Unemployment
Ins. Comm'n, AP-2003-025, 2004 Me. Super. LEXIS 181 (Aug 30, 2004)), refused to
participate in a training program (Ellery v. Dep't of Labor Unemployment Ins.
Comm'n, 1999 ME 194, <[<[ 15-17, 742 A.2d 928), or ignored the employer's
warnings concerning accuracy in work product (Sheink, 423 A.2d at 522 (Me.
1980)). These determinations by the Law Court suggest that negligent violations
of reasonable rules and overt indifference for employers interests may be
sufficient for a finding of manifest intent and may be considered misconduct.
The parties do not dispute that the Employer's attendance rule was
objectively reasonable. The issues before the Court are whether the application of
the rule to Barry in this case was reasonable and whether his failure to strictly
adhere to the rule demonstrates an intent to disregard the Employer's interests.
Unlike the cases above where misconduct was found based upon failure
to comply with a rule by lack of reasonable care or by blatant indifference, in this
6 case, Barry failed to comply with the rule because he was unable to as a result of
illness. The Commission found that Barry was unable to call in or show up for
his shift because of his alcoholism. Barry subsequently made reasonable efforts to
contact the Employer. Barry's actions as described in the record do not support a
finding of objective intent to disregard the interests of Employer. When viewed
in light of all circumstances, there is no evidence to support a determination that
Barry acted unreasonably.
Even if the Court were to find that Berry violated a rule that was
reasonably applied to him, the Court would then look to whether the reason for
the absences triggers the exception to disqualification found in 26 M.R.S. §
1043(23)(B). The Court finds that the Hearing Officer's determination of
misconduct is contrary to the Hearing Officer's determination that Barry was
unable to call the Employer because he was ill. Barry's inability to call the
Employer due to illness, and his efforts to call once he was able, fall squarely into
the exception carved out to the presumption of misconduct for absenteeism. 1
The Court finds that no competent evidence on the record supports
Commission's determination that Barry is disqualified from the receipt of
unemployment insurance benefits for misconduct.
1 The Commission denied application of the exception to disqualification found
in 26 M.R.S. § 1043(23)(B) in this case because "the claimant did not take steps necessary to ensure that his illness would not result in another rule violation". Had there been steps that Barry could have taken to prevent future rule violations, and had he chosen not to take them, then the reasoning of the Commission would be sound. The Commission does not suggest any steps that Barry could have taken that would have accomplished this end. Because there is no support in the record for a finding that Barry could have prevented future disruption by taking certain actions and chose not to, the Court finds that the Commission's determination is unsupported.
7 IV. Conclusion
The Court reverses the determination of the Commission.
The Clerk is directed to incorporate this Order into the docket by reference
in accordance with M.R. Civ. P. 79(a).
DATE: Mic1iaela Murphy Justice, Superior Court