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Barry v. Unemployment Insurance Commission

Superior Court of Maine, Kennebec

October 13, 2016

DONALD C. BARRY, Petitioner
v.
UNEMPLOYMENT INSURANCE COMMISSION, Respondent.

          ORDER ON RULE 80C APPEAL

          Michaela Murphy Justice

         I. Background

         Petitioner Barry was employed full-time by Employer SAPPI paper mill from 1986 to November 15, 2014. (R. at 32). Barry's final rate of pay was $31.00 per hour. (R. at 32).

         The Employer had a policy requiring employees to call to report an absence prior to the start of their shift. (R. at 32). The employer's rules were written in the labor agreement which was distributed to all employees. (R. at 32).

         On March 26, 2014, Barry failed to call in prior to the start of his shift and was absent. (R. at 33). Barry was hospitalized and unconscious due to pancreatitis and diabetes. Id. He called in as soon as he awoke at approximately 7:00 am. Id. The Employer issued him a written warning. (R. at 33).

         On May 2, 2014, the Employer issued Barry another written warning and a one-day suspension for failing to call out or appear for his scheduled shift. (R. at 33). Barry did not wake up to his alarm because of his alcoholism. (R. at 33).

         Again, due to his alcoholism, Barry did not show up for his shift or call in early on August 18, 2014. (R. at 33). At that time, the Employer gave Barry a Last Chance Agreement. (R. at 33). The Last Chance Agreement stated that Barry's employment would be terminated for any future policy violations in the next two years. (R. at 33). At that time, the Employer suggested that Barry seek treatment for his alcoholism. (R. at 33).

         On November 16, 2014, Barry did not show up for work or call out in advance because of his alcoholism. (R. at 33). Barry informed the Employer a few days thereafter that he was pursuing long-term alcohol treatment. (R. at 33). Barry was hospitalized in Maine for eight days. (R. at 33). The Employer helped Barry find an out of state treatment facility and put Barry on unpaid family medical leave. (R. at 33).

         Barry returned from treatment and met with the Employer on January 12, 2015, to discuss and investigate the absence on November 16, 2014. (R. at 33). On February 2, 2015, the Employer terminated Barry's employment for poor attendance and failure to notify the Employer of his absences. (R. at 33).

         Barry's application for unemployment was denied on March 30, 2015. (R. at 78-79). Barry appealed to the Division of Administrative Hearings, which held a hearing on April 27, 2015. (R. at 36-74). On May 6, 2015, the Hearings Officer issued a determination affirming the denial of benefits based upon a finding of misconduct pursuant to 26 M.R.S. § 1043(23). Upon appeal to the State of Maine Unemployment Insurance Commission (the "Commission"), the Commission issued a determination on September 29, 2015, affirming and adopting the Hearing Officer's decision, with additional findings and reasoning. (R. at 22-27). Barry requested reconsideration of the Commission's decision. (R. at 5-14). The Commission issued a decision upholding the September 29, 2015 decision, and making certain additions and modifications. (R. at 1-4).

         Barry filed for administrative review of the Commission's decision with the Superior Court. Barry seeks an order reversing the Commission's decision finding that he was discharged for misconduct and therefore ineligible to receive unemployment insurance benefits.

         II. Standard of Review

         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 the Law Court." Gulick v. Bd. of Envtl. 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 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) (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 ...


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