STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. AP-10r42, I ,.,,.,,-!,f;.A 1 )) )'1 I 'I I' !') I II 5<"' ;' . . ( /!j''.-:>. I' ' ' ' ,'- !·' · v I !
JOSHUA D. JINNO
Petitioner
v. ORDER ON RULE 80(C) APPEAL
MAINE UNEMPLOYMENT SECURITY COMMISSION
Respondent
BACKGROUND
Before the Court is an appeal brought by Joshua D. Jinno from a decision of the
Maine Unemployment Insurance Commission (hereinafter, "Commission"). Mr. Jinno
was disqualified from receiving benefits because the Commission found that he left
regular employment without good cause within the meaning of26 MRSA §1193(1) and
1221(3).
Mr. Jinno was employed by Cold Mountain Builders as a carpenter in January of
2001. He is of Japanese descent. He started working for Cold Mountain Builders in
January of 2007 as a skilled carpenter. He resigned from this job on November 27, 2009
through a letter written to his employer. The letter indicated that Mr. Jinno believed he
was underpaid and underappreciated, and further informed his employer that he and his
family had been the subject of racial threats by certain co-workers. (Administrative
Record, hereinafter "Record" at 225). Mr. Jinno applied for unemployment benefits but
1 was denied when the deputy determined that he left work voluntarily without good cause,
and that there was no evidence to suggest that he had told his employer about the racial
slurs and threats. (R. at 221 ). That determination was appealed to the Division of
Administrative Hearings which also found that he left employment without good cause.
(R. at 107). The Administrative Hearing Officer (hereinafter AHO) found that while Mr.
Jinno had a reasonable basis for his complaints about his employment due to the racial
slurs and threats, he failed to meet his burden of proving that he took reasonable steps to
communicate his complaints to his employer. (R. at 106). Mr. Jinno appealed the AHO's
decision to the Commission, which affirmed the AHO's decision, finding that Mr. Jinno
did not inform his employer about the slurs and threats until the time he gave notice of
resignation, on Nov. 27, 2009. (R. at 3).
Mr. Jinno is represented by Attorney Kaighn Smith, Jr. and the Commission is
represented by Assistant Attorney General Elizabeth Wyman. The parties were heard at
oral argument on May 4, 2010. The Court has reviewed the administrative record,
considered the parties' written and oral arguments, and issues the following order
remanding the case to the Commission pursuant to 5 MRSA § 11 007( 4)(2) for further
factual development, consideration of regulations of the Commission, and
reconsideration of the "good cause" requirement.
ANALYSIS
This Court's review of decisions of administrative agencies is limited to
determining whether the agency's findings are supported by any competent evidence in
2 the record, and whether the agency correctly applied the law. McPherson v. Maine
Unemployment Insurance Commission, 714 A.2d 818 (Me. 1998). The agency decision
cannot be overturned unless the record before the agency compels a different result. !d. at
820.
In their decisions, both the AHO and the Commission relied upon the Law
Court's decisions in Merrow v. Maine Employment Security Commission, 495 A.2d 1197
(Me. 1985) and Therrien v. Maine Employment Security Commission, 3 70 A.2d 13 85
(Me. 1977). The Commission concluded that Mr. Jinno's burden ofproofincluded the
requirement that he communicate to his employer his concerns regarding his inability to
work in a changed work environment and his need for different conditions before leaving
employment. Failure to prove this, according to the Commission as well as the AHO,
compels a finding that the employee has not left work for "good cause" attributable to the
employment.
In addition, the AHO relied upon factors set forth in agency regulations, Chapter
17 of the Rules Governing the Administration of the Employment Security Law to be used
in making determinations under 26 MRSA §1193(1). The AHO found specifically that
while the comments Mr. Jinno heard in the workplace about race "demeaned him as a
person, and made him feel threatened," (R. at 106) that he was ineligible for benefits
because he did not take reasonable steps to communicate his concerns and fears to his
employer.
The Court would note that neither Merrow or Therrien are particularly on-point
factually with this case. The employee in Merrow was director of residential care in a
nursing home who claimed that changed conditions at work, in terms of hours worked
3 together with changed demands placed on her, were taking a toll on her health. The
Commission found that she failed to communicate her concerns to her employer, which
deprived the nursing home of the opportunity to remedy the conditions about which she
complained. Merrow, at 1201. Unlike Mr. Jinno, the employee was not confronted by a
situation in which threats of violence were made against the employee or the employee's
family, or in which the employee was the subject of racial slurs. The Court would note
that in this case, the Commission found that Mr. Jinno had "a compelling reason to leave
his employment" (R. at 3), and the AHO specifically found that it was reasonable for Mr.
Jinno to feel threatened, that the comments demeaned him, and that he "certainly had a
reasonable basis for his complaint about the employer." (R. at 106).
The employees in Therrien were unionized spinners who refused to participate in
what was described as a volunteer trial work program. The program required them to
increase production, for which they would be paid more money. They claimed that the
new demands were beyond their abilities. They refused to participate, and were
discharged for misconduct. The Law Court held that the Superior Court and Commission
applied the wrong legal standard, and remanded the case to the Commission for
additional findings to be made regarding whether the work demanded was objectively
beyond the employees' abilities. If it was, the Law Court suggested that they might be
entitled to receive benefits based upon the "good cause" standard. Clearly, the employer
in Therrien was well aware, through the union's involvement if nothing else, about the
claims being made by the employees about what they perceived to be intolerable
conditions. 370 A.2d at 1387. The case therefore does not address the central issue
presented here, which is whether an employee in Mr. Jinno's position was required to
4 communicate with his employer about his concerns or complaints before leaving
With regard to the regulations relied upon by the AHO, but which were not
mentioned in the Commission's decision, the Court would note that they do not explicitly
apply to cases where a person, such as Mr. Jinno, was subjected to threats and slurs based
upon race. They do apply to cases of "harassment," and it may well be that the AHO
believed that this regulation (CMR 12-172-017(6) most closely fit Mr. Jinno's situation.
The regulations imply that an employee may, under certain circumstances constituting
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. AP-10r42, I ,.,,.,,-!,f;.A 1 )) )'1 I 'I I' !') I II 5<"' ;' . . ( /!j''.-:>. I' ' ' ' ,'- !·' · v I !
JOSHUA D. JINNO
Petitioner
v. ORDER ON RULE 80(C) APPEAL
MAINE UNEMPLOYMENT SECURITY COMMISSION
Respondent
BACKGROUND
Before the Court is an appeal brought by Joshua D. Jinno from a decision of the
Maine Unemployment Insurance Commission (hereinafter, "Commission"). Mr. Jinno
was disqualified from receiving benefits because the Commission found that he left
regular employment without good cause within the meaning of26 MRSA §1193(1) and
1221(3).
Mr. Jinno was employed by Cold Mountain Builders as a carpenter in January of
2001. He is of Japanese descent. He started working for Cold Mountain Builders in
January of 2007 as a skilled carpenter. He resigned from this job on November 27, 2009
through a letter written to his employer. The letter indicated that Mr. Jinno believed he
was underpaid and underappreciated, and further informed his employer that he and his
family had been the subject of racial threats by certain co-workers. (Administrative
Record, hereinafter "Record" at 225). Mr. Jinno applied for unemployment benefits but
1 was denied when the deputy determined that he left work voluntarily without good cause,
and that there was no evidence to suggest that he had told his employer about the racial
slurs and threats. (R. at 221 ). That determination was appealed to the Division of
Administrative Hearings which also found that he left employment without good cause.
(R. at 107). The Administrative Hearing Officer (hereinafter AHO) found that while Mr.
Jinno had a reasonable basis for his complaints about his employment due to the racial
slurs and threats, he failed to meet his burden of proving that he took reasonable steps to
communicate his complaints to his employer. (R. at 106). Mr. Jinno appealed the AHO's
decision to the Commission, which affirmed the AHO's decision, finding that Mr. Jinno
did not inform his employer about the slurs and threats until the time he gave notice of
resignation, on Nov. 27, 2009. (R. at 3).
Mr. Jinno is represented by Attorney Kaighn Smith, Jr. and the Commission is
represented by Assistant Attorney General Elizabeth Wyman. The parties were heard at
oral argument on May 4, 2010. The Court has reviewed the administrative record,
considered the parties' written and oral arguments, and issues the following order
remanding the case to the Commission pursuant to 5 MRSA § 11 007( 4)(2) for further
factual development, consideration of regulations of the Commission, and
reconsideration of the "good cause" requirement.
ANALYSIS
This Court's review of decisions of administrative agencies is limited to
determining whether the agency's findings are supported by any competent evidence in
2 the record, and whether the agency correctly applied the law. McPherson v. Maine
Unemployment Insurance Commission, 714 A.2d 818 (Me. 1998). The agency decision
cannot be overturned unless the record before the agency compels a different result. !d. at
820.
In their decisions, both the AHO and the Commission relied upon the Law
Court's decisions in Merrow v. Maine Employment Security Commission, 495 A.2d 1197
(Me. 1985) and Therrien v. Maine Employment Security Commission, 3 70 A.2d 13 85
(Me. 1977). The Commission concluded that Mr. Jinno's burden ofproofincluded the
requirement that he communicate to his employer his concerns regarding his inability to
work in a changed work environment and his need for different conditions before leaving
employment. Failure to prove this, according to the Commission as well as the AHO,
compels a finding that the employee has not left work for "good cause" attributable to the
employment.
In addition, the AHO relied upon factors set forth in agency regulations, Chapter
17 of the Rules Governing the Administration of the Employment Security Law to be used
in making determinations under 26 MRSA §1193(1). The AHO found specifically that
while the comments Mr. Jinno heard in the workplace about race "demeaned him as a
person, and made him feel threatened," (R. at 106) that he was ineligible for benefits
because he did not take reasonable steps to communicate his concerns and fears to his
employer.
The Court would note that neither Merrow or Therrien are particularly on-point
factually with this case. The employee in Merrow was director of residential care in a
nursing home who claimed that changed conditions at work, in terms of hours worked
3 together with changed demands placed on her, were taking a toll on her health. The
Commission found that she failed to communicate her concerns to her employer, which
deprived the nursing home of the opportunity to remedy the conditions about which she
complained. Merrow, at 1201. Unlike Mr. Jinno, the employee was not confronted by a
situation in which threats of violence were made against the employee or the employee's
family, or in which the employee was the subject of racial slurs. The Court would note
that in this case, the Commission found that Mr. Jinno had "a compelling reason to leave
his employment" (R. at 3), and the AHO specifically found that it was reasonable for Mr.
Jinno to feel threatened, that the comments demeaned him, and that he "certainly had a
reasonable basis for his complaint about the employer." (R. at 106).
The employees in Therrien were unionized spinners who refused to participate in
what was described as a volunteer trial work program. The program required them to
increase production, for which they would be paid more money. They claimed that the
new demands were beyond their abilities. They refused to participate, and were
discharged for misconduct. The Law Court held that the Superior Court and Commission
applied the wrong legal standard, and remanded the case to the Commission for
additional findings to be made regarding whether the work demanded was objectively
beyond the employees' abilities. If it was, the Law Court suggested that they might be
entitled to receive benefits based upon the "good cause" standard. Clearly, the employer
in Therrien was well aware, through the union's involvement if nothing else, about the
claims being made by the employees about what they perceived to be intolerable
conditions. 370 A.2d at 1387. The case therefore does not address the central issue
presented here, which is whether an employee in Mr. Jinno's position was required to
4 communicate with his employer about his concerns or complaints before leaving
With regard to the regulations relied upon by the AHO, but which were not
mentioned in the Commission's decision, the Court would note that they do not explicitly
apply to cases where a person, such as Mr. Jinno, was subjected to threats and slurs based
upon race. They do apply to cases of "harassment," and it may well be that the AHO
believed that this regulation (CMR 12-172-017(6) most closely fit Mr. Jinno's situation.
The regulations imply that an employee may, under certain circumstances constituting
harassment, be required to communicate with the employer before separation. For
example, factor "F" allows the AHO to consider "the efforts made by the employer and
the claimant to control or adjust the situation." However, the regulations do not explicitly
require notification in situations of "harassment". 1 In addition, the regulations suggest
that notification to the employer is not required in cases of domestic violence before the
victim leaves employment. 2
The Commission's argument before this court is essentially that this is a case of
"changed circumstances" that falls squarely under the mbric of Merrow such that notice
to the employer before separation is unquestionably required. And indeed, the employer
testified that had he known about the threats and slurs he would not have tolerated either.
1 In Paige v. Maine Employment Security Commission, 217 A.2d 321 (Me. 1966) an employee successfully argued before the Law Court that she was entitled to benefits after having been threatened and assaulted by clients at an extended care facility for mentally retarded adults. The Court found this constituted "good cause." Factually, this case is more on point than either Merrow or Therrien. However, the employer in Paige was aware of her complaints and failed to change conditions. 217 A.2d at 324. 2 CMR 12-172-017 9(C)( 6) allows the AHO to consider in determining whether the claimant made "all reasonable efforts to preserve the employment" if the employee notified the employer "either before or within a reasonable time after separation" of the fact of the abuse. Mr. Jinno informed Cold Mountain Builder's owner, Mr. Fischer, at the time of separation.
5 Before determining that legal issue, however, the Court finds that it would be
appropriate for the Commission to consider its own regulations which appear to allow
AHO's to consider circumstances where an employee facing certain kinds of intolerable
work conditions (such as harassment) or emergencies (such as domestic violence) is
relieved of the obligation to report those circumstances to the employer before leaving
employment when attempting to establish "just cause." The Commission in its
conclusions seems to have assumed that the farlure to consult with an employer regarding
any sort of problem which motivates the employee to leave work prevents an employee
from establishing "good cause." However, the Commission's own regulations indicate
that it has, through rule-making conducted after both Merrow and Paige were decided,
carved out exceptions to the employer notification rule. These regulations suggest to this
Court a previous recognition by the Commission that the "changed circumstances"
doctrine discussed in Merrow and Paige is not as broad, and the "good cause" standard
not as unforgiving, as the Commission here argues.
In addition, missing from the Commission's decision are any explicit findings
with respect to the communications between Mr. Jinno and Rick Tyler, and between Mr.
Jinno and Nick Buck. The Commission simply concluded that Mr. Jinno failed to discuss
the problems with his employer or supervisors, and the Commission did so without
specific credibility determinations, and more importantly without regard to whether
communications to Mr. Buck should be attributed to Mr. Jinno's employer (R. at 3).
Rick Tyler was a supervisor, and Mr. Jinno testified that Mr. Tyler acknowledged
to him that he "might not want to buy that house" that he and his wife were thinking
about buying, in light of the threats by an employee to burn it. As Mr. Jinno points out in
6 his brief, Mr. Tyler admitted that he discussed cross-burnings with Mr. Jinno, as well as
Mr. Jinno's interest in buying a house in Searsmont. (R. at 74). Mr. Tyler at first could
not recall warning Mr. Jinno about moving to Searsmont, but eventually denied being
told this by Mr. Jinno. (Record at 76). With respect to Mr. Buck, Mr. Jinno testified that
Mr. Buck had been described by Rob Scheibel, a head site supervisor, as Mr. Jinno's
"direct supervisor. " (R. at 132). He also testified that he specifically went to Mr. Buck to
tell him about the threats not only because he was his supervisor but b
was in his view "a person of liberal kind of thinking who would be understanding to
something like racial issues." (R. at 132). Mr. Jinno described Mr. Buck's reaction as
"shocked." (R. at 133). Mr. Buck testified that he did not remember this conversation but
did not deny that it occurred. (R. at 68).
As noted above, the Commission found that Mr. Jinno "did not go to the employer
or a supervisor" to complain about the problems he was experiencing." (R. at 3). Mr.
Tyler at first did not remember, but eventually denied being told anything of particular
concern. Mr. Buck did not remember, but Mr. Jinno explicitly remembered his
communications with him. In the absence of credibility findings, or factual findings with
respect to whether Mr. Buck was in a supervisory position (or simply a very experienced
lead man), and/or whether it was reasonable for Mr. Jinno to believe he was a supervisor,
this Court believes further factual findings should be made by the Commission.
7 CONCLUSION
For the reasons stated above, the Court pursuant to 5 MRSA §11007(4)(B),
remands this case to the Commission for further factual findings, for consideration of the
Commission's regulations (CMR 12-172-017), and for reconsideration ofthe "good
cause" standard.
y J~ J/1 ~:\== DATE SUPERIOR COURT JUSTICE
8 Date Filed _ ____,9'-'-/...;;3'-L./-=1~0_ __ Kennebec Docket No. _ _ __.!A~P:_-....::1~0~--=4~2:....__ _ _ _ _ __ County
Action -----=P~e=-t=-1=-·t::..i=:o~n~F~o~r~R=ev~i~ew!!..__ _ __ soc J. Murphy
Maine Department of Labor, Joshua D. Jinno vs. Unemployment Insurance Commission
Plaintiff's Attorney Defendant's Attorney
Kaighn Smith, Jr., Esq. Elizabeth Wyman AAG 84 Marginal Way, Suite 600 6 SHS Portland, ME 04101-2480 Augusta, Maine
Date of Entry
9/10/10 Petition For Review Of Final Agency Action, filed 9/3/10. s/Smith, Esq. Application To Waive Payment Of Filing Fee and Affidavit Of Petitioner, filed 9/3/10. s/Smith, Esq.
9/14/10 ORDER, Murphy, J. (9/13/10) Filing fee is waived. Copy to Plaintiff's attorney.
9/20/10 Entry of appearance filed by Elizabeth Wyman AAG on behalf of the def.
9/30/10 Administrative Record, filed 9/29/10. s/Wyman, AAG (In vault)
9/30/10 Notice And Briefing Schedule mailed to attorneys of record.
11/10/10 Brief of Petitioner, filed 11/8/10. s/Smith, Esq.
12/10/10 Brief of Respondent Maine Unemployment Insurance Commission, filed.
4/8/11 Oral arguments scheduled for May 4, 2011 at 10:30.
5/4/11 Hearing on oral arguments held 5/4/11 . Murphy , J . Ka1·gh n Sm1•th , J r., Esq. for Petitioner, Elizabeth Wyman, AAG for Respondent. Tape 1414, Index 4360-5196. Taken under advisement.
8/5/11 ORDER ON RULE 80(C) APPEAL, Murphy. J. (8/4/11) For the reasons stated, the Court remands this case to the Commission for further factual findings, for consideration of the Commission's regulations, and for reconsideration of the "good cause" standard. Copy to Atty Smith and AAG Wyman Copy to repositories.
8/5/11 Notice of removal of record/exhibits mailed to Atty Smith and AAG Wyman.