STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS. CIVIL ACTION D'O. CVT NO. AP-12-2)' ~ MARGARET TESTAVERDE, ) ) ,·,t - .._ v CJA.IYl- 5)I /}Gt / ,)1/1)
Plaintiff, ) v. ) ) ORDER MAINE UNEMPLOYMENT ) INSURANCE co:rvo:ssioN ) ) Defendant. )
L Background
Plaintiff, Margaret Testaverde, was terminated from her position as a server at
Warren's Lobster House on May 18, 2011. Plaintiff had worked as a server at Warren's
Lobster House since May 2, 2007. Plaintiff was discharged after a dispute between
Plaintiff and her supervisor on May 12, 2011. Plaintiff had arrived at work and begun
serving the tables assigned to her by the hostess. Approximately an hour and a half later,
the rounds supervisor, Sean Spiller, approached her and told her she should not assume
the tables she was serving had been assigned to her. Plaintiff told Mr. Spiller that she had
checked her table assignment with the hostess. Mr. Spiller responded that he had not seen
Plaintiff check her assignment with the hostess. Plaintiff asked if he was calling her a liar
and demanded an apology. Mr. Spiller walked away.
Plaintiff later asked to speak with Mr. Spiller in the back area, away from patrons.
Mr. Spiller ignored her request. About fifteen minutes later Mr. Spiller asked what
Plaintiff wanted. Plaintiff told him that she wanted an apology. Mr. Spiller threatened to
write a warning for her conduct. Plaintiff pointed to the back area of the restaurant and
suggested they talk there. Mr. Spiller either slapped down Plaintiffs arm, according to
1 Plaintiff, or brushed Plaintiffs arm out of his way, according to the employer. A
discussion continued in the back area, in which Plaintiff asked for an apology and Mr.
Spiller threatened to give Plaintiff a warning. Plaintiff then returned to work.
The following day when Plaintiff arrived at work she met with the general
manager, Brad Cunningham, and an independent HR. consultant, Bette Rose. They
discussed the incident. Plaintiff wanted documentation that Mr. Spiller had assaulted her.
At the end of the meeting Mr. Cunningham told Plaintiff to go home and that she would
be contacted regarding her employment status. Plaintiff was informed that her
employment was terminated on May 18, 2011 by phone. A letter was subsequently sent
stating that she was fired for gross insubordination retroactive to May 12, 2011.
Petitioner filed for unemployment insurance benefits on May 24, 2011. The
Deputy hearing officer performed a fact finding interview on June 8, 2011 and denied
Petitioner's claim. After a hearing on July 11, 2011, an Amended Decision was issued
granting Plaintiff unemployment compensation benefits. The decision was appealed to
the Maine Unemployment Commission, which again reversed the decision, finding that
Plaintiff was fired for misconduct and disqualified from the receipt of unemployment.
Plaintiff has appealed the finding of the Unemployment Commission.
II. Standard ofReview
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, ~ 6,
714 A.2d 818. This standard of review "is identical to the 'clear error' standard used by
2 the Law Court." Gulick v. Bd. ofEnvtl. Prot., 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 of proof is on the petitioner to prove that "no competent evidence
supports the [agency's] decision and that the record compels a contrary
conclusion." Bischoffv. 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 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 individual discharged from work on the basis of misconduct is disqualified
from the receipt ofunemployment compensation pursuant to 26 M.R.S. § 1192. The
employer bares the burden of proving that the employee's conduct did meet the statutory
definition of misconduct. 12 CMR 172-18(1) (2012). The statute defines misconduct to
include "[u]nreasonable violation of rules that should be inferred to exist from common
knowledge or from the nature of the employment;" and ''[i]nsubordination or refusal
without good cause to follow reasonable and proper instructions from the employer;" 26
3 M.R.S. § 1043(23)(A)(2), (9) (2012). According to the decision in Forbes-Lilley v. Maine
Unemployment Ins. Comm 'n, "[c]laimant's admitted violation of a company rule does not
necessarily rise to the level of statutory misconduct. Rather, such a determination requires
a two-prong analysis: (1) the employer must have a reasonable standard for discharge and
(2) the employee must have acted unreasonably in failing to meet that standard." Forbes-
Lilley v. Maine Unemployment Ins. Comm'n, 643 A.2d 377, 379 (Me. 1994) (citations
omitted).
Under the first prong of the analysis, the Employer's rule must have been
reasonable. "[D]isqualification from receiving the benefits of the unemployment act must
be established with reference to an objeCtive standard." Moore v. Maine Dep't of
Manpower Affairs, Employment Sec. Comm 'n, 3 88 A.2d 516, 519 (Me. 1978) A policy
which is not uniformly enforced is unreasonable because "[f]ailure to enforce a policy
uniformly, whether to the employee's benefit or detriment, still influences the employee's
belief regarding the consequences of his actions." New England Wooden Ware Corp. v.
Comm'rofDep'tofEmployment& Training, 61 Mass. App. Ct. 532,535,811 N.E.2d
1042, 1045 (2004).
In this case, Plaintiff was informed by letter that she was fired for gross
insubordination. It is reasonable for an employer to have a rule prohibiting
confrontational behavior. As noted by the hearing officer in the Amended Decision, a
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS. CIVIL ACTION D'O. CVT NO. AP-12-2)' ~ MARGARET TESTAVERDE, ) ) ,·,t - .._ v CJA.IYl- 5)I /}Gt / ,)1/1)
Plaintiff, ) v. ) ) ORDER MAINE UNEMPLOYMENT ) INSURANCE co:rvo:ssioN ) ) Defendant. )
L Background
Plaintiff, Margaret Testaverde, was terminated from her position as a server at
Warren's Lobster House on May 18, 2011. Plaintiff had worked as a server at Warren's
Lobster House since May 2, 2007. Plaintiff was discharged after a dispute between
Plaintiff and her supervisor on May 12, 2011. Plaintiff had arrived at work and begun
serving the tables assigned to her by the hostess. Approximately an hour and a half later,
the rounds supervisor, Sean Spiller, approached her and told her she should not assume
the tables she was serving had been assigned to her. Plaintiff told Mr. Spiller that she had
checked her table assignment with the hostess. Mr. Spiller responded that he had not seen
Plaintiff check her assignment with the hostess. Plaintiff asked if he was calling her a liar
and demanded an apology. Mr. Spiller walked away.
Plaintiff later asked to speak with Mr. Spiller in the back area, away from patrons.
Mr. Spiller ignored her request. About fifteen minutes later Mr. Spiller asked what
Plaintiff wanted. Plaintiff told him that she wanted an apology. Mr. Spiller threatened to
write a warning for her conduct. Plaintiff pointed to the back area of the restaurant and
suggested they talk there. Mr. Spiller either slapped down Plaintiffs arm, according to
1 Plaintiff, or brushed Plaintiffs arm out of his way, according to the employer. A
discussion continued in the back area, in which Plaintiff asked for an apology and Mr.
Spiller threatened to give Plaintiff a warning. Plaintiff then returned to work.
The following day when Plaintiff arrived at work she met with the general
manager, Brad Cunningham, and an independent HR. consultant, Bette Rose. They
discussed the incident. Plaintiff wanted documentation that Mr. Spiller had assaulted her.
At the end of the meeting Mr. Cunningham told Plaintiff to go home and that she would
be contacted regarding her employment status. Plaintiff was informed that her
employment was terminated on May 18, 2011 by phone. A letter was subsequently sent
stating that she was fired for gross insubordination retroactive to May 12, 2011.
Petitioner filed for unemployment insurance benefits on May 24, 2011. The
Deputy hearing officer performed a fact finding interview on June 8, 2011 and denied
Petitioner's claim. After a hearing on July 11, 2011, an Amended Decision was issued
granting Plaintiff unemployment compensation benefits. The decision was appealed to
the Maine Unemployment Commission, which again reversed the decision, finding that
Plaintiff was fired for misconduct and disqualified from the receipt of unemployment.
Plaintiff has appealed the finding of the Unemployment Commission.
II. Standard ofReview
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, ~ 6,
714 A.2d 818. This standard of review "is identical to the 'clear error' standard used by
2 the Law Court." Gulick v. Bd. ofEnvtl. Prot., 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 of proof is on the petitioner to prove that "no competent evidence
supports the [agency's] decision and that the record compels a contrary
conclusion." Bischoffv. 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 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 individual discharged from work on the basis of misconduct is disqualified
from the receipt ofunemployment compensation pursuant to 26 M.R.S. § 1192. The
employer bares the burden of proving that the employee's conduct did meet the statutory
definition of misconduct. 12 CMR 172-18(1) (2012). The statute defines misconduct to
include "[u]nreasonable violation of rules that should be inferred to exist from common
knowledge or from the nature of the employment;" and ''[i]nsubordination or refusal
without good cause to follow reasonable and proper instructions from the employer;" 26
3 M.R.S. § 1043(23)(A)(2), (9) (2012). According to the decision in Forbes-Lilley v. Maine
Unemployment Ins. Comm 'n, "[c]laimant's admitted violation of a company rule does not
necessarily rise to the level of statutory misconduct. Rather, such a determination requires
a two-prong analysis: (1) the employer must have a reasonable standard for discharge and
(2) the employee must have acted unreasonably in failing to meet that standard." Forbes-
Lilley v. Maine Unemployment Ins. Comm'n, 643 A.2d 377, 379 (Me. 1994) (citations
omitted).
Under the first prong of the analysis, the Employer's rule must have been
reasonable. "[D]isqualification from receiving the benefits of the unemployment act must
be established with reference to an objeCtive standard." Moore v. Maine Dep't of
Manpower Affairs, Employment Sec. Comm 'n, 3 88 A.2d 516, 519 (Me. 1978) A policy
which is not uniformly enforced is unreasonable because "[f]ailure to enforce a policy
uniformly, whether to the employee's benefit or detriment, still influences the employee's
belief regarding the consequences of his actions." New England Wooden Ware Corp. v.
Comm'rofDep'tofEmployment& Training, 61 Mass. App. Ct. 532,535,811 N.E.2d
1042, 1045 (2004).
In this case, Plaintiff was informed by letter that she was fired for gross
insubordination. It is reasonable for an employer to have a rule prohibiting
confrontational behavior. As noted by the hearing officer in the Amended Decision, a
rule prohibiting confrontational behavior is reasonable on its face because:
"Confrontational behavior creates anxiety and mental distraction, compromising employee attention to their duties for the employer. Confrontational behavior can also escalate to a more serious altercation. Abusive behavior demonstrates lack of respect for co-workers and undermines the cooperative relatinships necessary for a productive work environment. Behavior that is loud and confrontational is also disturbing
4 to a restaurant's customers, and could reasonablybe expected to adversely affect the employer's repeat business. Abusive language towards management demonstrates a lack of respect for management and undermines the cooperative relationships necessary for a productive work environment." Amended Decision p. 4.
However, if confrontational behavior occurred in this case, the confrontational
behavior was demonstrated by both Plaintiff and Mr. Spiller. Nonetheless, only Plaintiff
was penalized for the incident. If the incident was exacerbated by the location where it
took place, Plaintiff did not determine the location. Plaintiff requested to speak with Mr.
Spiller out of the dining room area twice, and he declined. Considering the facts
presented, ifPlaintiff's behavior could be considered confrontational and grounds for
termination on the basis of misconduct, Mr. Spiller's conduct must be considered the
same. As he did not face termination on the same grounds, the Court finds the
enforcement of the rule inconsistent and therefore unreasonable. With no evidence to
support the finding that the rule was uniformly applied, the Court finds that the rule was
unreasonable and Plaintiff was discharged without cause.
N. Conclusion
The Court Reverses the decision of the Commission and finds Plaintiff was
discharged without misconduct as outlined in 26 M.R.S. § 1043(23).
DATE: John O'Neil, Jr. Justice, Superior Court
5 ATTORNEY FOR PLAINTIFF: WENDY MOULTON STARKEY, ESQ. ROSE LAWLLC 15 WOODBRIDGE ROAD YORK, ME 03909
ATTORNEY FOR DEFENDANT: ELIZABETH J. WYMAN, AAG OFFICE OF THE ATTORNEY GENERAL 6 STATE HOUSE STATION AUGUSTA, ME 04333