Flynn v. Maine Employment Security Commission

448 A.2d 905, 1982 Me. LEXIS 750

• Court: Supreme Judicial Court of Maine
• Decided: August 9, 1982
• Status: Published

Opinions

McKUSICK, Chief Justice.

The Employment Security Commission denied unemployment benefits to the claimant Ambrose Flynn on the ground he had been discharged from his job as a security guard at a Catholic hospital because of his own misconduct connected with his work. The misconduct consisted in talking about religion to employees and patients at the hospital in violation of the request his employer expressly made to him before he was hired. Although in this court Flynn does not contest the finding of misconduct, he nonetheless contends that denial of unemployment benefits to him violates his First Amendment right to the free exercise of his religion. On the facts of the present case, we reject the claimant’s constitutional claim, and remand to the Superior Court (Androscoggin County) with direction to affirm the commission’s denial of unemployment benefits.

On December 11, 1980, claimant Flynn began working for Carrier Detective Agency as a security guard at St. Mary’s Hospital in Lewiston, a Catholic hospital that contracts with the detective agency for security services. Before commencing his duties, Flynn spoke at length with Camille Carrier, owner of the agency. As Carrier later recalled that conversation at an administrative hearing, he told Flynn that hospital officials had complained that previous guards had talked too much with patients and hospital employees. Carrier explained to Flynn that he was “to say yes and no only and to smile at people.”¹ When Flynn mentioned that he had for six years belonged to the Franciscan Order, Carrier expressly forbade him to discuss that aspect of his life with anyone at the hospital. Flynn agreed not to divulge his past association with the Franciscans and raised no objection to the general instruction to minimize conversation on the job.

A week or two after hiring the present claimant Flynn, Carrier began receiving complaints from his supervisor at the hospital that Flynn was upsetting emergency room patients, including psychotic and suicidal persons, by talking about religion with them. Carrier summoned Flynn for a second discussion. Asked whether he recalled being instructed to limit his conversation, Flynn admitted that he did, but said he did not think he had talked excessively. At the subsequent hearing, he testified that he realized religion was a sensitive subject, but that he did not believe he had caused any harm and that his Christian faith required him to try to calm troubled souls in the way he did.² Carrier again ordered Flynn not to engage in unnecessary discussions at work, and to refrain entirely from discoursing on religion.

Nonetheless, about two weeks after that second discussion of the matter with Flynn, Carrier again heard complaints that he was proselytizing among both patients and staff. On January 13,1981, Carrier and the present claimant had their third meeting. When Flynn told Carrier that he would continue talking as he had, Carrier discharged him.

One week later, Flynn applied for unemployment benefits from the Department of Manpower Affairs.³ A deputy of the department made an initial determination that claimant should receive benefits and that they should be charged to Carrier’s experience rating record.⁴ Carrier took the case to the Appeal Tribunal, which conducted a hearing on March 4,1981, and reversed the deputy’s decision. The tribunal found as a fact that when hired, the claimant “was told it would be best if he not mention his prior vocation or discuss his religious convictions with patients or hospital employees,” and that “the employer’s request was reasonable in view of the environment in which the claimant was working.” The tribunal also found that after Flynn began working at St. Mary’s Hospital, “the employer’s supervisor of the security guards at the hospital reported to [the employer] that there had been complaints that the claimant was discussing religious beliefs with hospital personnel while on duty.” As a matter of law the tribunal concluded that “the claimant’s actions and statements constituted insubordination and a deliberate disregard of the employer’s best interests which is deemed to be misconduct connected with his work and in connection with the employment.” The claimant appealed the tribunal’s decision to the Commission, which affirmed and adopted it. On a Rule 80B appeal, the Superior Court affirmed the finding that Flynn was guilty of misconduct connected with his work, but nonetheless held the Commission constitutionally bound to pay unemployment benefits to Flynn.⁵ On appeal we reverse the latter holding of the Superior Court.

An individual is temporarily disqualified for unemployment benefits if he is “discharged for misconduct connected with his work.” 26 M.R.S.A. § 1193(2) (1974). The legislature has defined “misconduct” to mean

conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has a right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

26 M.R.S.A. § 1043(23) (1974). Notwithstanding some language in that definition suggesting a subjective standard, the test for statutory misconduct is necessarily conducted under an objective “standard of reasonableness under all the circumstances.” Therrien v. Maine Employment Security Comm’n, Me., 370 A.2d 1385, 1389 (1977).

The Superior Court was plainly correct in affirming the administrative finding of statutory misconduct. The claimant’s repeated discussions about religion with hospital patients and staff, coming as they did after plaintiff had received from Carrier explicit directions at the time he was hired not to engage in such conversations, constituted a blatant disregard of his employer’s interests and a violation of standards the employer could reasonably have expected his employee to honor. Flynn’s transgression all the more clearly fits the definition of misconduct because of evidence in the record that he understood that such conduct could endanger his employer’s contract with the hospital.⁶

The claimant argues, and the Superior Court ruled, that notwithstanding that misconduct, the Commission violated the Free Exercise Clause of the First Amendment to the United States Constitution by denying him unemployment benefits. The argument proceeds chiefly from two cases decided by the United States Supreme Court, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), and a third decided by this court, Dotter v. Maine Employment Security Comm’n, Me., 435 A.2d 1368 (1981). In Sherbert, a Seventh Day Adventist was fired because she refused to work on Saturday, her sabbath, after her employer began requiring Saturday labor. The claimant was administratively denied unemployment benefits because she would not accept work with other, similar employers in the area, all of whom required their employees to work on Saturday. In Thomas, a Jehovah’s Witness who believed his faith forbade the manufacture of arms quit his job at a roll foundry when his employer transferred him to a division making tank turrets. He, too, was administratively denied unemployment benefits. And in Dotter, a private school teacher who for years had obtained leave to attend multiday festivals that were an important part of his religion, resigned when his employer finally refused him further leave. The Maine Commission held him ineligible for unemployment benefits. In all three cases, the ultimate court decision was that the denial of benefits constituted an unconstitutional burden on the claimants’ right to the free exercise of religion.

On the facts of the case at bar, we do not reach the constitutional issue on which that trilogy of cases turned. The Commission found, and the record supports the findings, that Flynn accepted employment on the express understanding that he was not to discuss religion with patients or staff at St. Mary’s Hospital; that the employer’s request for avoidance of religious talk was a reasonable one in the circumstances; that Flynn nonetheless had such discussions; and that he was discharged when he insisted that he would continue to talk about religion. The case at bar is not one where during the course of his employment the employee is forced by a change in policy by the employer to choose between violating the dictates of his faith and suffering unemployment. Nor can it be said that the claimant was confronted on the job with a different problem from any that Carrier’s instructions prepared him to expect. Even if the claimant were viewed to have reacted reasonably by offering words of encouragement to some emotionally troubled patients in the emergency room, his religious speech went much further, even to the point of proselytizing in the cafeteria among hospital employees. Flynn knew from the start of his employment that such missionary work was proscribed.

Unlike the claimants in Sherbert, Thomas, and Dotter, Flynn took the security job at St. Mary’s Hospital knowing that conduct he believed religiously compelled was forbidden by his employer. The Commission has not burdened his free exercise of religion, for he assumed the burden himself.

The entry must be:

Judgment reversed; case remanded to the Superior Court for entry of judgment affirming decision of the Maine Employment Security Commission.

ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., concurring.

1 . Carrier feared that garrulous security guards could endanger his contract with St. Mary’s Hospital. In his “Statement Supporting Deputy’s Findings of Fact,” plaintiff implicitly admitted his understanding of that rationale, de-daring “[m]y employer is only interested in keeping his contract at St. Mary’s.”

2 .Plaintiff admitted that he comforted patients by asking “why don’t you turn to Jesus Christ and ask Christ to come into your heart,” and “tell[ing] them about God’s unconditional love and acceptance for them.” He denied having discussed religion in the cafeteria with hospital employees, although Carrier testified that he had received complaints to that effect. The record is replete with evidence that plaintiff regarded it as his “duty to almighty God” to talk about his faith; hence there is no doubt that plaintiff’s conduct was “rooted in an honest religious conviction.” Dotter v. Maine Employment Security Comm’n, Me., 435 A.2d 1368, 1372 (1981).

3 . The Department of Manpower Affairs has since been renamed the Department of Labor. See P.L. 1981, ch. 168.

4 . See 26 M.R.S.A. § 1221(3) (1974).

5 . The complaint asserted as the basis for the action in Superior Court both an administrative appeal under M.R.Civ.P. 80B and a constitutional claim under 42 U.S.C. § 1983 (1976). The justice below conducted no factfinding but heard oral argument before reversing the commission’s decision. In its decision, the Superior Court recited both jurisdictional grounds and must be assumed to have disposed of all claims.

6 . See n. 1 above. Plaintiff filed notice of a cross-appeal contesting the finding of statutory misconduct, but has not pursued it.