Roland A. Cole, Judge
This matter is before the court on Petitioner Walton Hansen's appeal of the Maine Unemployment Insurance Commission's decision to temporarily disqualify Hansen from receiving unemployment benefits pursuant to 26 M.R.S. § 1193(2). See 26 M.R.S. § 1194(8); 5 M.R.S. § 11001 et seq. The Commission affirmed and adopted the Administrative Hearing Officer's decision that the Petitioner should be temporarily disqualified from receiving unemployment benefits, because his termination was the result of misconduct related to his work, and that his employer's experience rating record would not be charged. This court held a hearing on this matter on November 5, 2013.
Factual and Procedural Background
At the time of the incident giving rise to this case, Hansen had worked for Hannaford Bros. Co. ("Hannaford") for over 37 years. Hansen was a warehouse associate with Hannaford working as a forklift operator. On July 30, 2012, Hansen and his wife were involved in an incident that involved the theft of property from a Hannaford in Westbrook. Hansen's wife took medication, as well as a couple of other items, placed them in her purse and walked out of the Hannaford. Hansen's wife was apprehended after she left the store, and Hansen was later apprehended after he left the store's restroom. Hansen and his wife were both issued summonses for theft by unauthorized taking.
Bruce Southwick, the distribution center manager and the man who decided to fire Hansen, was the representative from Hannaford present at Hansen's hearing in front of the Administrative Hearing Officer op October 23, 2012. Southwick asserted that Hansen knew his wife took the medication, and that in a phone call that he placed to Hansen a few days after the incident, Hansen admitted that he saw his wife place Imodium in her purse. Southwick stated that from the video it appeared that Hansen and his wife were facing one another when she put items into her bag. According to Southwick, both parties passed the registers and made their way towards the exit, where Hansen turned to use the bathroom and his wife walked out of the store.
Southwick took notes about the phone conversation at the time of the conversation, and those notes were admitted as an exhibit at the hearing. The notes state "Wally said they were shopping and I handed her some Imodium which she put in her purse. I was going to make her pay for it before we went through the registers." (R. at 128.)
Hansen disputes that he was aware that his wife had placed items in her purse before they were apprehended. Hansen also stated that he was unaware that his wife was planning on leaving the store, and he believed that she was going to the produce section while he was in the bathroom.
Following the incident, on or around August 9, 2012, Hansen was fired. Hannaford's personal behavior policy prohibits theft of company property, and also provides that "[b]ehavior at or away from the job site that results in criminal charges or conviction, may result in discipline up to and including suspension and/or termination of employment." (R. at 138-39.) Southwick stated that his decision to fire Hansen was based on still photographs of the incident taken from the video of the incident, his phone conversation with Hansen, the police report, and conversations with employees who had seen the video. South wick did not watch the video of the incident until after he had already terminated Hansen. The video and the still photographs of the video were not admitted into evidence.
After Hansen applied for unemployment benefits, a deputy's decision was issued on September 26, 2012 finding that Hansen was disqualified from receiving unemployment benefits. Following the October 23rd hearing, the Administrative Hearing Officer issued a decision affirming the deputy's decision and finding that Hansen was disqualified from receiving unemployment benefits because he was terminated for misconduct connected with his work pursuant to 26 M.R.S. §§ 1043(23) and 1193(2).
On February 20, 2013, the Commission reviewed Hansen's appeal and affirmed and adopted the Administrative Hearing Officer's decision. Hansen's request for reconsideration was subsequently denied.
Standard of Review
In its appellate capacity, the court reviews agency decisions for "abuse of discretion, error of law, or findings not supported by the evidence." Rangeley Crossroads Coal. v. Land Use Reg. Comm 'n, 2008 ME 115, ¶ 10, 955 A.2d 223. When the court reviews a Commission decision the court "examine[s] the record to determine whether any competent evidence supports the Commission's findings, as well as to determine whether the Commission has applied the applicable law." Bean v. Maine Unemployment Ins. Comm'n, 485 A.2d 630, 632-33 (Me. 1984). 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." Bischoff v. Maine State Ret. Sys., 661 A.2d 167, 170 (Me. 1995). "Inconsistent evidence will not render an agency decision unsupported." Id. "Judges may not substitute their judgment for that of the agency merely because the evidence could give rise to more than one result." Gulick v. Bd. of Envtl. Prot., 452 A.2d 1202, 1209 (Me. 1982).
The court must give great deference to an agency's construction of a statute it is charged with administering. Rangeley Crossroads Coal, 2008 ME 115, ¶ 10, 955 A.2d 223. "A court will 'not vacate an agency's decision unless it: violates the Constitution or statutes; exceeds the agency's authority is procedurally unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by bias or an error of law; or is unsupported by the evidence in the record.'" Kroeger v. Dep't of Environmental Prot., 2005 ME 50, ¶ 7, 870 A.2d 566) (quoted in Alexander, Maine Appellate Practice § 452 at 312 (4th ed. 2013)).
Where there have been multiple levels of administrative decision-making, the most recent decision will be the one subject to Superior Court review, if the most recent decision-maker had de novo capacity and/or the authority to conduct additional fact-finding. See Alexander, Maine Appellate Practice § 455(b) at 315; see also ...