DONALD C. BARRY, Petitioner
UNEMPLOYMENT INSURANCE COMMISSION, Respondent.
ORDER ON RULE 80C APPEAL
Michaela Murphy Justice
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).
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).
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).
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).
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.
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).
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).
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).
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.
Standard of Review
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.
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 ...