Malual v. Maine Unemployment Sec. Comm'n
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STATE OF MAINE KENNEBEC, ss SUPERIOR COURT AP-IO-18 ) ;11MNl _ KCJJ - S /J ~7':'.' MICHAEL MALUAL ORDER ON RULE 80 C APPEAL v. MAINE UNEMPLOYMENT SECURITY COMMISSION Procedural Background Before the Court is an appeal brought by Michael Malual of a March 11, 2010 decision of the Maine Unemployment Security Commission (hereinafter "Commission") disqualifying Mr. Malual from receiving unemployment benefits based on his discharge from employment for misconduct. Mr. Malual had previously been found eligible for benefits by a deputy's decision dated August 28,2009 as well as a Hearing Officer's decision dated October 30, 2009. Both the deputy and the Hearing Officer found that Mr. Malual had been discharged, but not for misconduct. The employer appealed to the Commission, and this appeal was brought by Mr. Malual pursuant to Rule 80 C of the Maine Rules of Civil Procedure. Mr. Malual is represented by Attorney John H. Branson, whose first involvement in the case was to ask for reconsideration of the Commission's March 11, 2010 decision. 1 September 12, 2008 to provide their area office with "a copy the degree/diploma/certificate of their highest level of education.' (R. at 113). The notice went on to say that the employee "should update this documentation if you obtain additional education, because that is a factor for consideration for pay increases." (R. at 113). On September 30, 2008 Granite Bay sent another notice to employees setting a November 1,2008 deadline to provide "documentation of the GED certification." The notice also indicated that if the employee did not pass the exam by that date, they needed to provide documentation that the test was taken and failed. Those employees were then required to retake the test by December 1, 2008, and by that date provide documentation that they had passed the test, or that they had taken the test and were awaiting results. (R. at 114). This same notice also stated: "If such documentation is not provided by December 1, 2008 then the Program Manager is responsible for taking corrective action leading to suspension and termination of the employee for failure to meet the educational requirements of their job." On December 2, 2008 Granite Bay received from Portland Adult Education a fax that stated that Mr. Malual was scheduled for an ESOL Intake appointment on December 15,2008 at 4:00 pm, and indicating that Granite Bay should call if they had any questions. (R. at 104). ESOL is a program designed to teach individuals who use English as a second language, and is described in the record as "a precursor to the GED program." (R. at 73). Mr. Malual is from Africa, and many employees of Granite Bay 3 the Commission hearing does not refer to it. (R. at 20). This unadmitted document warns the employee that failure to take corrective action "could result in further disciplinary action, including termination." (R. at 106). A deadline of July 1, 2009 was set for Mr. Malual to comply with the GED requirements. He testified that on the last day of June, 2009 he faxed further information from Portland Adult Education to the Sanford office of Granite Bay, and confirmed with Barbara, the receptionist, that Granite Bay had received it. (R. at 68). Christine Tiernan, who worked as the area director for Region I of Granite Bay, testified that she made it clear to Mr. Malual that ifhe did not provide the required documentation that he would be fired. (R. at 40). She stated that Granite Bay would need to know, "basically his grades, how he was doing in class... making sure he was attending." (R. at 56). She stated that she was very worried about Mr. Malual, who she valued as an employee because he worked hard and was punctual. She stated that many Granite Bay were very attached to him. (R. at 58). It was Ms. Tiernan's job to discuss Mr. Malual's termination with him. She indicated that Kelly, the program director, was crying she was so upset. She stated they both knew that Mr. Malual had six children and they were all worried about how he would support them. (R. at 43). Ms. Tiernan further testified that if Mr. Malual supplied the documentation as he described, it never reached "the program manager level." (R. at 63). She stated that she was certain that her office manager would have supplied the information to her since "she was really aware of where we were at as a team, she would have supplied it to us." (R. at 63). 5 It is the employer's burden to show that an employee's conduct meets this statutory definition of misconduct. 536 A,2d 618, 619 (Me. 1988). Mr. Malual does not challenge the reasonableness of the employer' OED requirement. (R. at 7). Rather, he alleges that when objectively viewed, his conduct was reasonable under all the circumstances of the case. Sheink v. Maine Dept. ofManpower Affairs, 423 A, 2d 519 (Me. 1980). Discussion In its decision, the Commission found explicitly that Mr. Malual did not meet the first two deadlines set by the employer (Sept. 12,2008 and November 1,2008) to provide documentation showing he had passed the OED exam or that he was scheduled to retake the test if he had failed it. There is clear support for that finding on this record. The Commission found additionally that on December 2, 2008 he was enrolled in a OED course at the Portland High School Adult Education Program. This finding is not supported by the record. Mr. Malual was not enrolled in a OED course as of that date, he was scheduled for an intake appointment for an ESOL course. The note he gave to his employer provided for a contact number in case the employer "had any questions." (R. at 104). The English proficiency course was, according to the employer's testimony, a precursor to the OED course, and was designed for individuals for whom English was not their primary language. (R. at 104). The Commission then cites Mr. Malual' s lack of action in response to the employer's March 4, 2009 letter, which had requested proof of Mr. Malual' s progress in the OED course. Employer's Exh. 7, which was admitted into evidence, confirmed once 7 necessary. 3 His answers or comments are at times non-responsive or only partially responsive. When asked by Chairman Peverada if he has any objection to the admission of Employer Exhibit 4 which (the Maine Care regulation), Mr. Malual indicates through the interpreter, "Yes. He has some questions." Mr. Malual then begins trying to explain, "This is not the first time I'm working for them. In 2006, when I was --- I think it was an obligation at that time to have aGED." (R. at 24). Other answers he gives are described as "indiscernible." When asked by Chairman Peverada if he remembers talking to his supervisor about the written warning, he indicates he does not remember receiving it, but does remember talking with his supervisor about it: "She called me to say it was not (indiscernible). (Speaking in English, but indiscernible.) If you don't have it with you, you should be fine." (R. at 38). Other parts of the proceeding are difficult to follow given the format used by the Commission and the challenges presented by the interpretive process. When Ms. Johnson is describing the process Granite Bay employed in deciding to terminate Mr. Malual, the transcript reads as follows: Ms. Johnson: A decision was made by (indiscernible) that we were going to terminate the people who had not provided the documentation as required, Mr. Malual being one of them. He had Exhibit 3 already entered, my July 2, 2009 letter to Mr. Malual, terminating him based on his failure to meet the requirements of the regulation and the requirements that (indiscernible). I believe it was Interpreter: (Begins to translate.) 3 Mr. Malual was pro se before the Commission. He had a live Arabic interpreter before the Commission. (R. at 23). Mr. Malual requested an interpreter before the Administrative Hearing Officer (AHO) some way into that hearing, and received assistance from Shima Kadhim for the rest of that hearing. (R. at 134-152). The employer objected to the AHO providing an interpreter, stating that "he worked for us for more than a year and had no problem communicating with the staff at this agency." (R. at 147). The name of the interpreter before the Commission was indicated as "Indiscernible." (R. at 21). Chairman Peverada in a colloquy with Heidi Johnson, the employer's representative, explains the instructions he gave the interpreter: "What he's going to do, and I talked with the interpreter and he talked to the claimant, is he's going to inquire every now and again if he understands what's going on ... and explain it if he does not." (R. at 23). Neither Mr. Malua! nor the Interpreter are recorded as commenting on these instruction or this procedure. 9 can testify, but do you got any questionsMr. Malual: Yeah. I never been talking to Christine about the GED, no. It was the program manager. Chairman Peverada: Okay. You're testifying. That's okay. Mr. Malual: She was talking about she was discussing with me aGED. Chairman Peverada: Okay. Mr. Malual: I never (indiscernible). (MDLTIPLE SPEAKERS) Chairman Peverada: He doesn't have to ask a question. He can go right into his testimony. I'll just have her go outside when he testifies then she may be recalled by the employer. But if he has any questions of her directly face-to-face, then ask them now. It doesn't bother me one way or the other. Mr. Malual (through interpreter): How did you reach the conclusion that I left the job myself? Ms. Tiernan: I didn't reach that conclusion. Mr. Malual (through interpreter): He seems to have understood that. He left his job, and you didn't Chairman Peverada: He can't keep talking when you're talking, okay. you're interpreting for him, so if he keeps going ahead of you, it's not going to work, okay. All right. Mr. Malual (through interpreter): He has an understanding that they - I left the job. I'm speaking first person, he left the job. Chairman Peverada: And is he asking if that's what the employer believed? Mr. Malual (through interpreter): My question to Chairman Peverada: Yeah. Mr. Malual (through interpreter): -- I was surprised when I see the paper that say I left the job (indiscernible). I was surprised by that. (Indiscernible) how I loved my job. Chairman Peverada: That's not a question to you. He's testifying. Mr. Malual (through interpreter): Who say that I left the job? Chairman Peverada: All right. No one is saying that you left the job voluntarily. Mr. O'Malley: Nobody's saying that. I know what he's - he had looked he had seen that in the notice when we raised both issues. That's what it is. Chairman Peverada: No. You were fired by the employer. Mr. O'Malley: Yes. Chairman Peverada: Okay. Mr. O'Malley: No doubt. Chairman Peverada: Nobody's question. Mr. O'Malley: No question that you left. Chairman Peverada: Okay. All right. Why don't you go wait outside. 11 Chairman Peverada: Yeah. Mr. Malual: I take it to my supervisor. (R. at 71) Upon further questioning by Chairman Peverada, Mr. Malual indicates that he was still enrolled in the ESOL class at the end of June. (R. at 74). In addition, as of the date of the January 28, 2010 hearing Mr. Malual was enrolled in the GED program. In response to questions about what course work he had taken at Adult Ed since 2008, he indicates through the interpreter that he has taken "English language, World History and World Culture, and they were supposed to start mathematics with me." (R. at 89). He also testified that he was taking some of these courses before he was terminated. (R. at 89). Mr. Malual also testified that when he asked the person or persons he spoke with at Adult Ed and asked for information required by Granite Bay, their response was to suggest that Granite Bay contact them directly. (R. at 88). While it is not at all clear why this was their response, one has to question whether Mr. Malual was able to adequately convey to them what was needed. The Court cites the above portions of testimony not to suggest that the Commission treated Mr. Malual unfairly, and the Court is mindful that neither party raised or argued the issue of Mr. Malual' s limited English proficiency. The Court cites the testimony in order to make clear the Court's concern about certain factual findings of the Commission that are not supported by the evidence. Those findings include that Mr. Malual faxed information about the GED program before his termination, and that he unreasonably failed over a significant period of time to give Granite Bay appropriate information about the GED course. The course or courses in which he was enrolled 13 The record does not support a finding that the employer met its burden to show the unreasonableness, or culpability, of the claimant's failure to provide evidence of his OED tests or grades. During the time frame in which the Commission found he was engaged in a OED course and not complying with the employer's request for information about his OED progress, he did provide information to his employer that showed that he was engaged in a course designed to increase his English proficiency. The ESOL course or courses were a prerequisite to the OED course, and the resultant delays made it impossible for him to meet the otherwise reasonable deadlines of his employer. The entry will be: Commission Decision No. 09-C-11263 is reversed. The Petitioner was discharged from employment, but not for misconduct within the meaning of 26 MRSA § 1043(23). This order shall be noted on the docket as incorporated by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure. '~[wJ--~ DATE SUPERIOR COURT JU TICE 15 Date Filed __5---,/,---1_3--=-/_1_0 _ Kennebec County Action _ _"--P-=-e-=-t-=i-=-t-=i-=-o.: . :n'-=-=F-=-o-=r----=..:R:. : e-=-v-=i:. : e. .:. :w 80C A_P_-_1_0_-_1_8 Docket No. _ Michael Malual _ I. Murphy Ys. Maine Unemployment Insurance Commission Defendant's Attorney Plaintiff's Attorney John H. Branson, Esq. PO Box 7526 Portland, ME 04112-7526 - Elizabeth Wyman, AAG 6 State House Station Augusta Maine 04333-0006 -Susan Driscoll, Esq. (Granite Bay Care PIJ Leah Rachin, Esq. 62 Portland Road, Suite 25 Kennebunk, Maine 04043 Date of Entry 5/14/10 Petition For Review Of Final Agency Action Pursuant To Rule 80C, filed 5/13/10. s/Branson, Esq. 5/19/10 Letter entering appearance, filed. s/Wyman, AAG 5/20/10 Entry of Appearance, filed. s/Driscoll, Esq. 6/16/10 s/Rachin, Esq. (party-in-int) Administrative Record, filed. s/Wyman, AAG NOTICE AND BRIEFING SCHEDULE ISSUED Copies to attys. of record. 7/27/10 7/29/10 8/3/10 8/3/10 8/9/10 Motion for a 7-day enlargement of time to file brief of petitioner. Filed 7/26/10 by Atty Branson. Letter filed by Atty Branson regarding the motion for 7-day enlargement of petitioner filed on 7/26/10. Letter filed informing the court there is no objection to the motion for enlargement of time, filed. s/Wyman, AAG< Brief of Petitioner in Support of Petition for Review of Final Agency Action pursuant to Rule 80C, filed. (8/2/10) MOTION, Murphy, J. BE IT HEREBY ORDERED THAT Motion for a 7-day Enlargement of Time to File Brief of Petitioner is hereby: GRANTED Copies to attys. of record. Party-in-Interest's Unopposed Motion to Enlarge Time to File Brief, filed. Rachin, Esq. Proposed Order, filed. 8/11/10 ORDER, Murphy, J. This order shall be incorporated on the docket. Copies to attys. of record. Date of Entry Docket No. 8/30/10 Brief of the respondent Maine Unemployment Insurance Commission filed by Elizabeth Wyman, AAG. 9/3/10 Letter notifying the Court that PII Granite Bay, Inc. joins in the brief of Respondent Maine Unemployment Insurance Commission and will not be filing a separate brief. s/Rachin, Esq. (filed 9/2/10) 12/8/10 Oral argument scheduled for 12/29/10 at 1:30 p.m. Motion/Oral Argument list mailed to attorneys of record. 5/17/11 ORDER ON RULE 80c APPEAL, Murphy, J. (5/13/11) Commission Decision No. 09-C-11263 is reversed. The Petitioner was discharged from employment, but not for misconduct within the meaning of 26 MRSA § 1043(23). This order shall be noted on the docket as incorporated by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure. Copy to Attorney Branson, Attorney Driscoll, AAG Wyman. Copy to repositories. 5/17/11 Notice of removal of record/exhibits mailed to all attorneys.
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