Desta V. ME Unemployment Insurance Comm'n
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Sl:PERIOR COURT CIVIL ACTION Dockctl'.o. AP-14-17 STA l'E OF \1AINF CUMBERLAND, ss mw.-cum-JH1-J 'f ABPRA DESTA, Plaintiff ORDER ST~TE OF MAINE MAIJ'.:E UNEMPLOYMENT INSIJRANCF COMMISSJOJ\. c~~m~- < .. , , ; ·., ~'"'ri<~ Office NOV 20 2014 RECEIVED Defendant Before the court is Abcra lk;ta's appeal fiOJn a March 7, 2014 deciswn of the Maine Unemployment Insurance Commission (R. l-7) denying him unemployment benefits and ordering him to repay an overpayment of$ 5,453.00. Standard - of Review -- On this appeal the comt's role is to detcm1ine whether the Corruni.<Sion correctly applied the law and whether its findings are ~upported by any competent ev1dcnce. McPhersol} Timberlands Inc. v._ UnemPloyment Insurance Cornmis•ion 1998 ME 177 "f6, 714 A2d 818. The court cannot overrule a decision or the Commission unless the record before the Commisswn compels a contrary result. I d. The court should not substitute 1S OV..'Il judgment for that of the agency and must affirm findings of fact if they arc supported by substantial evidence in the record. Rangd(:y Crossroads Coalition v. Land Use }{egulationCommission, 2008 ML 115 ~ 10,955 A.2d 223. Fmdings by Hearing Officer vs. 1'\ndings by Corn_mission At the outset this case presents the question of whether the CC>mmission was entitled lCl disregard the findmgs made by a Hearing Offtcer after an ev1dentiary hearing where the Hearing Orticer bad tbe opportunity to listen to the witnesses and observe their demeanor. Th~ original decision by the Deputy denied benefits on the ground that Desta had left his employment voluntarily without good cause attributable to his employer. (R. 2R9). After a lengthy evident1ary hearing (R. 92 -2R 1), an agency hearing officer issued a deciswn Qvertuming the deputy's miginal ruling that Desta had left his cmp!C>yment vC>luntarily and alsC> rejecting the empl()ycr's argument that Desta wa> not entitled to benefits becau<e he had been discharged fC>r miseC>nducL (R. 60-66) On the employer's appeal to the Commission, the Commission did not hold another evidentiary hearing but set a heanng ''limltcd to Oral Argument Only" (R. 35) (emphasis in original). After hearing oral argument (R. 8-34), two members of the Commis8ion issued a decision that, contrary to the finding of the hoMing examiner, concluded that De,ta had been validly d1scharged for misconduct Within the meaning of 26 MR.S. § 1043(23) and was therefore disqualified from receiving benefits pursuant to 26 MRS § 1193(2)_ (R. 1-7). 1 One member of the Comm1ssicm dissented. (R. 7). Desta argues that the Commi'"ion, acting on what he characterizes as a cold record, is not entitled to m-crrurn findings by the Hearing Officer that were based on the Hearing Officer's first-hand evaluation of the credibility or witnesses. Counsel for the Commission di~agrces, arguing that the Commission is emitlcd to wake the final decision ba•ed on the administrative record. 1 The Commi;;ion d1d not adopt the Deputy's original decision that Desta had left hi;· cmpln}onent voluntmi ly. and the evidence m the record would not support a ftnding thal Desta had left hi.> employment voluntanly. 2 In this case some of the Commission's factual findings contradict those of the oflicn_ Whether the Commission is entitled to substitute its judgment o~ hcari~g lictual iswcs pose; a dif!icult questJOn and one on which many or the cases cited b}· the parties arc nGt particularly helpfuL Thus, while counsel for Dcsta relies on Poole v. Statler Tissue~, 400 A.2d lll67 (Me_ \979), and \1atthews v R. T. Allen & Sm1s Inc, 266 A.2d 240 (M"e. 1970), the Law Court ca"t S~gniflca~t doubt upon the analysis l!l those cases in Dunton v. Ea.,tcrn Fi~e Paper Co., 423 A.2d 512, 514-15, 517 p..1e. 198()). Similarly, the proposition that a "mrt should defer to lindings made by an administrative agency e\'C!l \Vhen those are based solely on a written record, sec CGsta v_ \1r. "G'" Foodliner, 431 A.2d 1292, 1294-95 (Yie. 19RI); Dunton, 423 A.2d at 51415, does not address the issue of whether the Commission can make Jindings inconsistent with those reached by a heanng officer alter an evidentiary hearing. Moreover, the Law CoLJit' s ruling m :"'ew England Telephone & lelegraph Co.~- PCC, 448 A.2d 272, 279 ("Vie. 1982), that CGmmissioners are entitled to rely on and essenllally adopt findings by agency hearing examiners docs not address whether Comm1ssioners arc instead entitled to contradict findings of their hearing offtcers wnhout h"lding a new evidentiary hearing_ However, the Law Coun'> decision in Green v. Commissioner of Mental Health Y:lental Retardation, and Substance Abuse Service_>;, 200! Commission on this issue. _9re~ 1\,ffi 86, 776 A.2d 612, supports the al>O involved a case where the final decision of the agency contradicted that ol' the agency hearing officer. The Law Court cmphaEized that it was the Clmnnissioner'> finding,, not those of the hearing officer, that were error. 2001 ME 86 ~ subj~cl to reyiew tOr dear 12. The court disagreed that only the hearing officer v..ho had beard the evidence and assessed the credibility ofwitnes~cs could make factual findings. 2001 ME 86 ~ 14. It added that 3 [a]s long as the decision-making o!liccr both familiarize~ himself 'With the evidence sufficient to assure him,df that all statutory criteria have been satislicd and retains the ultimate authority to make the decision, he can properly u11\ize subordinate oflieers to gather evidence and make preliminary reports (citation omiUed) ... Ko authority. however, binds the agency deci<>ion-maker to the ftndings conwined m the hearing officer's report. 200IMF86~15. To the extent that the Green deciswn does not resolve the issue. the record in this case also reflects that at least one of the Commissioners listened to the entire recording of the heuring before the hearing officer and the other two Coffillli>sioners also had the opportunity to review that h~aring. (R. 11 ). Und~r tho'c circumstanL"CS the court concludes that tl1e Commission was entitled to make findings in th1s case that were in~onsistent \Vith the findings previously reached by the hearing off1cer. Given that the Commis<ion was cntitkd to make its O\Vll findings, the court concludes that there is <ufficient evidence to uphold the Commission's finding that Desta engaged in misconduct in that he unrea><mably violated a rule that "as commumcated and equitably enforced ami that he refu~ed rea~onably imposed and without good cause to follow a reasonable and proper instruction lfom hi.' cmp loy cr. 26 M. R.S. § 104 3(23 )(\)(A )(2 ). (9)." There is al<o contrary evidence in the record hom which the Commission could have found that the rule wa< not rea~onably communicated, that the rule was not equitably enforced, and that Desta did not refuse without good cause to follow an instruction from his employer. However. the court ' Although the Commission's decision also referred to 26 M.R. S. § l 043(23)( 1)(A)( 4), the court interprets that subsection as requiring repeated instances of lateness '" absenteeism and doe; not find that there is evidence of such conduct in this case. 4 is not entitled to substitute !IS judgment for that of the Commission even if the court would have rea~hed a different concluswn llpon weighing the evidence. In this connection. there is on~ other issue that needs to be addressed. The statutory definition provide> that misconduct may not he found solely "on an isolated error in judgment or a failure to perform satisfactorily when the employee has made a good faith effort to perform the duties assigned.'' 25 M.R.S. § \Q43(23)(B)(I}. In this case the Comm1ssion IOund that although Desta "was terminated for what appean to be an isolated incident, his refusal without good cause to fol!O\V reasonable and pmpcr instructions from his employer represenl~ egregious behavior."' (R. 6). rhe court does not have to decide whether an isolated error in jlldgmem is not entitled to the safe harbor of & \043(2:J)(BJ(!J if the error in judgment is ·'egregious'· because it is evident that the Commi"'ion did not find that 'What it characteriY.ed as Desta's rd'usal to follow his employer's mstructions qualiliL-d as an error in judgment. Instead, the Commis~ion found thai Desta had ·'knowingly" refused to follow hi< employer's directive (R. 6) - a finding which n~ccssarily meant that, in the Cowmisswn·s view, Desta had not made a good faith effort to perform the duties assigned. Under§ 1043(23)(13)(1), an isolated error in j11dgment does not constitute misconduct but only when the employee has made a good faith effort to perfonn. 3 lt bears emphasis that the court IS not endorsing the Co!Ill11i<sion's findings on this issue but is constrained to conclude that there is sufficient ev1dence in the record from which the C<lmmission could have made the findings that it did. 3 lJesta also relies on statutory language that misconduct may not be found solely on absenteeism caused by illness of a fam1ly member 1fthc employee made reason~ble efforts to give notice and to comply with the employer's policies 26 M.R.S_ § l043(2J)(B)(2). In this case, however, there is no evtdencc that Desta 10\d the employer his mother was ill and no evidence that Desta's failure to return on April 22 was cauo;ed by any change in his mother's health_ Moreover, the Commission found that De;ta did not make a reasonable effort to comply with the employer's policies. 5 Other l.ISUeS Counsel fm Desta argues that the Commi8Nion failcJ to address Dcsta's claim that his tem1ination resulted from Jiscrimination, pumting >pecifically to the fact that Desta had filed for workers' ~ompensat\On benefits \Vhen the employer had allegedly told him not to file and that Dcsta had also asked for a kiter so his daughter could obtain 'vlaineCarc benefits. F1rst, although a discrimination claim was raised before the hearing officer, it dues not appear that that daim v.as pursueU when the case was appealed to the Commission. Scccmd, to the extenl that counsel for Desta 1> arguing that the rea"ms given by the ewployer for De'ta 's tefJ11ination were a pret.<::xt for d1scrimination, the Commission found the employer's statements were credible, thereby implicitly rqecting that the employer's reasons for termination were pretextual. Finally, the Commission', findings apply only to unemployment benefits and the Commission did not have Jurisdiction to consider discrimination under any other statute. Accordingly, the decision that Desta is not entitled to unemployment benef1ts is affinncd. The court does not. however, affirm Under the applic~ble th~ Commission's ruling that S 5,453.00 must be repaid. statute, recovery of any overpayment may not be sought until the determination of an erronc01.!.' payment is final. 26 :vi R.S. § 1051(5). That will not occ.;ur until the appeal period from this decision has expired or, 1f an appeal to the Law Court is taken, until that appeal has been decided. At that pmn1 Desta can seek a waiver of the overpayment, and would be entitled to a waiver if he is found to be without fault and if any recovery would defeat 6 the purpo5e of benefit, otherwis~ authorized or would be against equity and good conscience_ ld. In this ~asc the overpayment does not appear to be Dcsta's fault since it resulted from a hearing olflcer'< decision which was later set aside by the Commission. Howev~r, any decision nn whether Desta would otherwise be entitled to a waiver would be premature where the dctcnninatinn nf an overpayment has not become fmal and Desta has not applied for a waiver. 'l he entry shall be: With the exception ol'its ruling that$ 5,453.00 must be repaid- which 1S premature until the case is concluded and the Commission has acted on any request for a waiver that might be made the decision of the l:ncmploymcnt ln>urance Commission is affirmed. !'he clerk is d1rccted to incorporate this order in the docket by reference pursuant to Rule 79(a). Dated: };ovcmber_l_"i,2014 -~~~ 'I homas J)_ Warren Justice, Superior Court A different rule applies if an overpaym~'llt re>ults from misreprc:;entation or nondisclosure. 26M R S. § 1051(6), but there is nothing in the record that would support a finding of misrepresentation or mmdisclosure in this case. 4 7 CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101 NANCY MAClROWSKI AAG OFFICE OF THE ATIDRNEY GENERAL D STATE HOUSE STATION AUGUSTA Mf Q4333-000fi -- - - - -- - - - - - - - · - - - - - - - - --- --- ------- ~e"JoJ\'>'7 P, '1-\-o '"e_/ - - - - - --- --- ---- - - - CLERK OF COURTS Cumberland County 205 Newbury S\reet. Ground Floor Portland, ME 04101 FISCHER ESQ DRUMMOND WOODSUM JEREMY 84 MARGINAL WAY SUITE 60() PORTLAND ME 04101 ?I c.-, .-,0, '~'\' \"\-\'0--o rr;Q /
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