STATE OF MAINE SUPERIOR COURT OXFORD, ss. Docket No. AP-10-07 ()l\ dle yv - _-Ii t, r,· ~' - ~ / ;2..(] i,:) I) , ,
HARRY D. EVERY,
Petitioner
v. DECISION AND ORDER
UNEMPLOYMENT INSURANCE COMMISSION, STATE OF MAINE
Defendant
Petitioner Harry D. Every appeals from the decision of the Maine
Unemployment Insurance Commission, denying him unemployment benefits, based on
the Commission's determination that Every voluntarily left his employment without
good cause attributable to his employment. The Commission also ordered a
reimbursement of $2,444.
1. BACKGROUND
Every worked as a millwright and a welder in Massachusetts for his employer,
Downeast Machine & Engineering, Inc. from May 4, 2009, to May 13, 2009. Every's
nephew, Robert J. Nowak, worked with him as well. Nowak drove Every and another
worker to the worksite in Massachusetts.
Every, Nowak, and the other worker were originally told that the job would
involve working ten hours a day. When they arrived on the first day, however, the
employer informed them that they would be working for only eight-hours per day. The
employer paid the employees $75 a day for expenses, including travel, food and
lodging. The employer expected the employees to be responsible for their own
transportation to and from the jobsite. Because Every, Nowak, and the 45fhex.wor~er , _ .::! ,;,,~...~~,~. . - '"' ~ : .}
r' ,. / ...... <~_. ~ _.J .~. "-': .,~/ traveled to Massachusetts on short notice, the employer agreed to pay for the hotel
room on its credit card and take the cost of the room out of the Every's paycheck. The
employer expected Nowak and the other employee to reimburse Every for the cost of
the hotel.
During the second week on the job, Nowak became upset because he believed
that the employer did not pay him enough. All three workers, including Every,
believed that they were not being paid for the entire number of hours that they had
worked. According to Every, he had worked forty-eight hours, but had been paid for
only forty-four hours.
Nowak confronted the foreman about the discrepancy in their pay. The foreman
told the workers not to act like babies. Every tried to call the employer in Maine, but
could not reach anyone in the office. The employer contends that Every and the others
were paid for every hour they worked in Massachusetts.
Nowak was angry and decided not to finish the work week and to return to
Maine. Every wanted to stay to finish the work assigned, but he could not arrange for
transportation to and from the jobsite, and did not have money to return to Maine on
his own. Every rode back to Maine with Nowak and the other worker.
Every applied for unemployment benefits and was denied because the deputy
determined that he had left his work voluntarily and without good cause associated
with his employment. Every appealed the deputy's decision to the Division of
Administrative hearings, which came to the same conclusion.
Every appealed to the Unemployment Insurance Commission, which affirmed
and adopted the Administrative Hearing Officer's findings of fact and conclusions of
law on June 3, 2010. On request for reconsideration, in a two-to-one decision, the
Commission reaffirmed its prior decision and determined that another hearing was not
2 warranted after reviewing the record. Every now appeals to this court pursuant to
Rule 80e l
II. DISCUSSION
When acting as an appellate body pursuant to M.R. Civ. P. 80C, the court directly
examines the record before the agency and reviews its decision for errors of law,
findings not supported "by substantial evidence on the whole record," or other
indications that the decision was "[a]rbitrary or capricious or characterized by abuse of
discretion."2 5 M.R.S. § 11007(4)(C) (2011). The court generally gives "great deference
to the Commission's interpretation of its own regulations." Farley v. Maine
Unemployment Ins. Comm'n, 624 A.2d 1233,1234 (Me. 1993).
Maine's Employment Security Law disqualifies a claimant from receiving
unemployment benefits if the claimant voluntarily left regular employment "without
good cause attributable to that employment." 26 M.R.S. § 1193(1)(A) (2009). "Good
cause must be measured against a standard of reasonableness under all the
circumstances." Spear v. Me. Unemployment Ins. Comm'n, 505 A.2d 82, 84 (Me. 1986)
(quoting Merrow v. Me. Unemployment Ins. Comm'n, 495 A.2d 1197, 1201 n.2 (Me. 1985))
(citations omitted).
1 Every also requests that this court order a further hearing on the grounds that the transcript has 145 "indiscernible" statements. A "party contesting the adequacy of the record is required to provide notice of the claimed defect to the administrative agency within ten days:' York Hosp. v. Dep't of Human Servs., 2005 ME 41,
2 The court is missing pages 30-57 of the record, which appear to be portion of the hearing transcript. The parties do not object to these missing pages and the court will not rely on citations to these missing pages. The court concludes that the record is sufficient for judicial review.
3 In this case, the Commission found that Every left his job primarily because
Nowak, his only means of transportation back to Maine, decided to leave the job.3 The
Commission concluded that Every's reasons for leaving the job were personal, and thus
did not constitute good cause attributable to his employment. See Kilmartin v. Me.
Employment Sec. Comm'n, 446 A.2d 412, 414 (Me. 1982) (employee's inability to afford
expense for required business trip and reduction of wages as result of transfer not good
cause within meaning of section 1193(l)(A)); Toothaker v. Me. Employment Security
Comm'n, 217 A.2d 203, 209-10 (Me. 1966) ("Distance is rather a personal reason which
may render the work unsuitable apart from any conditions of employment.").
Generally, personal reasons not related to employment conditions do not constitute
good cause attributable to employment. Snell v. Me. Unemployment Ins. Com., 484 A.2d
609, 611 (Me. 1984).
The Commission also determined that one of Every's reasons for leaving the
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STATE OF MAINE SUPERIOR COURT OXFORD, ss. Docket No. AP-10-07 ()l\ dle yv - _-Ii t, r,· ~' - ~ / ;2..(] i,:) I) , ,
HARRY D. EVERY,
Petitioner
v. DECISION AND ORDER
UNEMPLOYMENT INSURANCE COMMISSION, STATE OF MAINE
Defendant
Petitioner Harry D. Every appeals from the decision of the Maine
Unemployment Insurance Commission, denying him unemployment benefits, based on
the Commission's determination that Every voluntarily left his employment without
good cause attributable to his employment. The Commission also ordered a
reimbursement of $2,444.
1. BACKGROUND
Every worked as a millwright and a welder in Massachusetts for his employer,
Downeast Machine & Engineering, Inc. from May 4, 2009, to May 13, 2009. Every's
nephew, Robert J. Nowak, worked with him as well. Nowak drove Every and another
worker to the worksite in Massachusetts.
Every, Nowak, and the other worker were originally told that the job would
involve working ten hours a day. When they arrived on the first day, however, the
employer informed them that they would be working for only eight-hours per day. The
employer paid the employees $75 a day for expenses, including travel, food and
lodging. The employer expected the employees to be responsible for their own
transportation to and from the jobsite. Because Every, Nowak, and the 45fhex.wor~er , _ .::! ,;,,~...~~,~. . - '"' ~ : .}
r' ,. / ...... <~_. ~ _.J .~. "-': .,~/ traveled to Massachusetts on short notice, the employer agreed to pay for the hotel
room on its credit card and take the cost of the room out of the Every's paycheck. The
employer expected Nowak and the other employee to reimburse Every for the cost of
the hotel.
During the second week on the job, Nowak became upset because he believed
that the employer did not pay him enough. All three workers, including Every,
believed that they were not being paid for the entire number of hours that they had
worked. According to Every, he had worked forty-eight hours, but had been paid for
only forty-four hours.
Nowak confronted the foreman about the discrepancy in their pay. The foreman
told the workers not to act like babies. Every tried to call the employer in Maine, but
could not reach anyone in the office. The employer contends that Every and the others
were paid for every hour they worked in Massachusetts.
Nowak was angry and decided not to finish the work week and to return to
Maine. Every wanted to stay to finish the work assigned, but he could not arrange for
transportation to and from the jobsite, and did not have money to return to Maine on
his own. Every rode back to Maine with Nowak and the other worker.
Every applied for unemployment benefits and was denied because the deputy
determined that he had left his work voluntarily and without good cause associated
with his employment. Every appealed the deputy's decision to the Division of
Administrative hearings, which came to the same conclusion.
Every appealed to the Unemployment Insurance Commission, which affirmed
and adopted the Administrative Hearing Officer's findings of fact and conclusions of
law on June 3, 2010. On request for reconsideration, in a two-to-one decision, the
Commission reaffirmed its prior decision and determined that another hearing was not
2 warranted after reviewing the record. Every now appeals to this court pursuant to
Rule 80e l
II. DISCUSSION
When acting as an appellate body pursuant to M.R. Civ. P. 80C, the court directly
examines the record before the agency and reviews its decision for errors of law,
findings not supported "by substantial evidence on the whole record," or other
indications that the decision was "[a]rbitrary or capricious or characterized by abuse of
discretion."2 5 M.R.S. § 11007(4)(C) (2011). The court generally gives "great deference
to the Commission's interpretation of its own regulations." Farley v. Maine
Unemployment Ins. Comm'n, 624 A.2d 1233,1234 (Me. 1993).
Maine's Employment Security Law disqualifies a claimant from receiving
unemployment benefits if the claimant voluntarily left regular employment "without
good cause attributable to that employment." 26 M.R.S. § 1193(1)(A) (2009). "Good
cause must be measured against a standard of reasonableness under all the
circumstances." Spear v. Me. Unemployment Ins. Comm'n, 505 A.2d 82, 84 (Me. 1986)
(quoting Merrow v. Me. Unemployment Ins. Comm'n, 495 A.2d 1197, 1201 n.2 (Me. 1985))
(citations omitted).
1 Every also requests that this court order a further hearing on the grounds that the transcript has 145 "indiscernible" statements. A "party contesting the adequacy of the record is required to provide notice of the claimed defect to the administrative agency within ten days:' York Hosp. v. Dep't of Human Servs., 2005 ME 41,
2 The court is missing pages 30-57 of the record, which appear to be portion of the hearing transcript. The parties do not object to these missing pages and the court will not rely on citations to these missing pages. The court concludes that the record is sufficient for judicial review.
3 In this case, the Commission found that Every left his job primarily because
Nowak, his only means of transportation back to Maine, decided to leave the job.3 The
Commission concluded that Every's reasons for leaving the job were personal, and thus
did not constitute good cause attributable to his employment. See Kilmartin v. Me.
Employment Sec. Comm'n, 446 A.2d 412, 414 (Me. 1982) (employee's inability to afford
expense for required business trip and reduction of wages as result of transfer not good
cause within meaning of section 1193(l)(A)); Toothaker v. Me. Employment Security
Comm'n, 217 A.2d 203, 209-10 (Me. 1966) ("Distance is rather a personal reason which
may render the work unsuitable apart from any conditions of employment.").
Generally, personal reasons not related to employment conditions do not constitute
good cause attributable to employment. Snell v. Me. Unemployment Ins. Com., 484 A.2d
609, 611 (Me. 1984).
The Commission also determined that one of Every's reasons for leaving the
jobsite was his concern about his compensation. 4 Concerns over his compensation,
however, was not Every's primary reason for leaving. Every stated that had he been
able to arrange his transportation to Maine by means other than with Nowak, he would
have stayed on the job and finished his work. s The facts of this case distinguish it from
3 Nowak also filed a claim with the Commission. See Nowak v. Down East Machine & Engr., Inc., No. 2009 A 10327 (Dec. 23, 2009). In that decision, the Commission found that Nowak left his position for good cause. 4 Contrary to the Commission's claims, Every gave the employer a reasonable time to change the offensive condition. Compare Merrow, 495 A.2d at 1201. Here, Every first brought his concerns to the foreman, who mockingly ordered Every to return to work. Every then attempted to contact the employer directly, leaving a message for the owner. Every's actions were sufficient to put the employer on notice about his concern.
5 The record supports Every's contention that he would have stayed on the job if he could have arranged alternative transportation:
Hearing Officer: So if your nephew had not left on that day would you have stayed on the job and finished out the job?
Every: Yes. I finished every other one that I was on.
4 those cases concluding that distance from the job location is a personal reason not
related to employment. Because Every was already at the job site in Massachusetts, and
because his only transportation home to Maine was with Nowak, and Nowak decided to
return to Maine without Every having time to arrange for other transportation, Every
was left with little choice but to return to Maine with Nowak. Every had good cause to
leave the job in Massachusetts when Nowak left. Accordingly, the Commission erred
when it found that Every left the position in Massachusetts without good cause.
III. CONCLUSION
Because the Commission's finding that Every voluntarily left his employment
without good cause is erroneous, the decision of the Commission must be vacated.
The entry is:
The decision of the Unemployment Insurance Commission is vacated. Remanded to the Commission for further proceeding~ co~t~th this Decision and Order. // \, / / '
DATED: April 21, 2011