The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-02-21
DPM REN ~ 1505 Sou
DONNA SMITH, Ot
Petitioner
v. DECISION AND ORDER
MAINE UNEMPLOYMENT ARBRECHT
DONALD L. GARE"
INSURANCE COMMISSION, LAW LIBRAR®
R dent
esponden en 7 03
This matter is before the court on petitioner's M_R. Civ. P. 80C Petition for
Review of the Maine Unemployment Insurance Commission’s (“respondent” or
“Commission”) decision denying and disqualifying her from receiving Unemployment
Insurance benefits.
From April 1999 until November 2001, petitioner was employed as a
dockworker for Inland Seafood. Petitioner’s daughter worked for one of Inland
Seafood’s business competitors. In November 2001, petitioner reserved ferry space on
the Vinalhaven Ferry for her daughter’s firm to ship products off the island. Petitioner
reportedly made the reservation because her daughter was unavailable at the time, and
petitioner was at the wharf on other personal business. Petitioner was not on duty for
Inland Seafood when she made the reservation. Inland Seafood learned of the incident,
and terminated petitioner’s employment. Inland Seafood maintains that its decision to
terminate petitioner was based on a rule that its employees are not permitted to work
for competing firms in their off hours. Petitioner applied to respondent for benefits
under the Maine Employment Security Act. Her request for benefits was denied
because respondent maintained that petitioner was terminated for misconduct as
defined by the Employment Security Act. 26 M.R.S.A. § 1040 et seq.
In its decision, respondent determined that petitioner was discharged for
misconduct within 26 M.R.S.A. §§ 1043 (23) and 1193 (2), thereby disqualifying
petitioner for unemployment insurance. The issue is whether petitioner was properly
denied unemployment insurance under the circumstances of her termination.
Petitioner makes three contentions: (1) the employer’s rule forbidding its
employees from working for competing firms is unreasonable and against public
policy; (2) respondent erred as a matter of law when it found that petitioner’s conduct,
that occurred while she was off-duty, manifested a disregard for a material interest of
her employer; and (3) petitioner’s actions in assisting her daughter were not
unreasonable under the circumstances.
When the decision of an administrative agency is appealed pursuant to M_R. Civ.
P. 80C, this court reviews the agency’s decision directly for abuse of discretion, errors of
law, or findings not supported by the evidence.” Centamore v. Dep’t of Human Services,
664 A.2d 369, 370 (Me. 1995). The Superior Court will reverse or modify an
administrative decision only if the administrative findings, inferences, or conclusions
are: “(1) In violation of constitutional or statutory provisions; (2) In excess of the
statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by
bias or error of law; (5) Unsupported by substantial evidence on the whole record; or
(b) Arbitrary or capricious or characterized by abuse of discretion.” Hale-Rice v. Maine
State Retirement Sys., 1997 ME 64, J 8, 691 A.2d 1232, 1235 (quoting 5 M.R.S.A. § 11007
(4)(C) (1989)). When the dispute involves an agency’s interpretation of a statute
administered by it, the agency’s interpretation, although not conclusive, is entitled to
great deference and will be upheld unless the statute plainly compels a contrary result.
Centamore v. Department of Human Services, 664 A.2d 369, 370-371 (Me. 1995). Review
will be limited to “determining whether the agency’s conclusions are unreasonable,
unjust or unlawful in light of the record.” Imagineering, Inc. v. Superintendent of Ins., 593
A.2d 1050, 1053 (Me. 1991). “Inconsistent evidence will not render an agency decision
unsupported.” Seider v. Bd. Of Exam’r of Psychologists, 2000 M E 206, 1 9, 762 A.2d 551,
555 (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, J 6, 703 A.2d 1258, 1261).
“The burden of proof rests with the party seeking to overturn the agency’s decision...
and that party must prove that no competent evidence supports the Board’s decision.”
Id. (citations omitted).
In this case, the issue is whether petitioner committed misconduct so as to be
disqualified from receiving unemployment benefits after termination from her
employment. Here, the court’s review of the Commission’s order is limited to a
determination of whether competent evidence supports the Commission’s findings and
whether the Commission applied the correct law to its findings. Forbes-Lilly v. Maine
Unemployment Ins. Comm'n, 643 A.2d 377, 378 (Me. 1994) (citing Wellby Super Drug
Stores, Inc. v. Maine Unemployment Ins. Comm'n, 603 A.2d 476, 478 (Me. 1992).
Generally, an individual discharged from employment is eligible for
unemployment compensation pursuant to the eligibility requirements of 26 M.R.S.A.
§ 1192. An exception, however, is when an employee is discharged for misconduct
connected with her employment. 26 M.R.S.A. § 1193 (2). Employment Security Law
defines misconduct as follows:
[A] culpable breach of the employee’s duties or obligations to the
employer or a pattern of irresponsible behavior, which in either case
manifests a disregard for a material interest of the employer. This
definition relates only to an employee’s entitlement to benefits and does
not preclude an employer from discharging an employee for actions that
are not included in this definition of misconduct. A finding that an
employee has not engaged in misconduct for the purposes of this chapter
may not be used as evidence that the employer lacked justification for the
discharge.
26 M.RS.A. § 1043 (23). In Moore v. Maine Dep’t. of Manpower Affairs, 388 A.2d 516,519
(Me. 1978), the court specified that an employee’s violation of an employer's rule is not
misconduct per se within the meaning of the statute. Rather, there is a two-prong test
to determine when misconduct has occurred. The Commission must determine:
1. Whether the employer’s rule or expectation was reasonable; and
2. Whether the employee’s conduct in relation to the employer’s
rule was, upon an objective standard, unreasonable under the
circumstances of the case.
Id. See also Forbes-Lilly v. Maine Unemployment Ins. Comm'n, 643 A.2d 377, 379 (Me. 1994).
Moore also specifies that this ad hoc approach to determine disqualification for benefits
permits the Commission to attach different weight to different violations, depending on
the magnitude of the violation and whether it is willful or results from
misunderstanding or carelessness. Id. The employee’s behavior is measured as the
objective manifestation of intent. Id. (citing Sheink v. Maine Dept. of Manpower Affairs,
423 A.2d 519, 522(Me. 1980)). There is no requirement of a showing that the employee
had a subjective intent to disregard the employer’s interests. Thompson v. Maine
Unemployment Ins. Comm’n, 448 A.2d 905, 908 (Me. 1982).
There is sufficient evidence on the record for the Commission to have found that
Inland Seafood’s rule or expectation of petitioner was reasonable. Inland Seafood
maintained a rule prohibiting its employees from working for a competitor while
employed at Inland Seafood. Inland Seafood is a wholesale seafood dealer located on a
coastal island. Crucial to its business is prompt, regular delivery of the seafood or bait
to and from the island to the mainland. In order to insure reliable delivery, seafood
dealers compete for a limited number of “priority” ferry passes to transport their
_ products from the island to the mainland. The priority passes assure a slot ona
particular ferry at a particular time and same-day return; a representative of a seafood:
dealer is often at the ferry terminal as early as 2:00 a.m. to wait in line for a pass. There
are five seafood dealers who may be competing for priority passes in one day. Inability
to obtain one of the passes has serious consequences for a seafood company, such as
failure to deliver products to customers on the mainland or failure to get a truck on and
off the island within one day. Without the priority pass, it is very difficult to get a
seafood delivery truck on and off the island within one day. Petitioner did not sign a
contract regarding Inland Seafood’s rule; yet, Inland Seafood maintained the rule and
the expectation. Also, the rule was made clear to petitioner and petitioner
acknowledged that she would no longer violate the rule, as had previously occurred.
Petitioner argues that Inland Seafood’s rule or expectation prohibiting
simultaneous employment with a competitor is unreasonable and against public policy
because it constitutes a non-competition agreement. However, non-competition
agreements that have been clearly determined as against public policy are agreements
between an employee and his former employer. In fact, all the cases cited by petitioner,
as well as further research, deal with non-competition agreements with a former
employer. There, non-competition agreements with a former employer are often (not
always) viewed as against public policy because of their high potential for restricting an
employee’s capacity to support himself in his chosen occupation. See Chapman & Drake
v. Harrington, 545 A.2d 645, 646-47 (Me. 1988); Lord v. Lord, 454 A.2d 830, 834 (Me. 1983);
Roy v. Bolduc, 34 A.2d 479, 481 (Me. 1943). The cases do not address a requirement by a
current employer that an employee refrain from working for a competing employer at
the same time, as in the present case.
Thus, there is sufficient evidence on the record for the Commission to determine
that Inland Seafood’s rule or expectation was reasonable.
There is also sufficient record evidence for the Commission to determine that
petitioner’s violation of Inland Seafood’s rule or expectation was unreasonable under
the circumstances. Petitioner was specifically informed on two prior occasions that she
was not to stand in line to obtain a priority ferry pass for a competing company.
Petitioner even stated to her employer that she would no longer try to obtain a priority
for another company. Thus, petitioner’s behavior was unreasonable because petitioner
was well aware of her employer’s expectation; had assured the employer she would not
pursue a priority pass for a competitor; and did so nonetheless. Petitioner even
requested of her colleague, who found her trying to obtain a priority for the
competition, that she not inform their employer of petitioner’s actions.
Petitioner contends that she was “aiding” her daughter, who was unable to
obtain the priority herself for her employer. Yet, it is also on the record that petitioner
obtained the priority for “extra time and extra money.” Either way, the employee’s
behavior is measured as the objective manifestation of intent. Forbes-Lilly v. Maine
Unemployment Ins. Comm’n, 643 A.2d at 379 (citing Sheink v. Maine Dept. of Manpower
Affairs, 423 A.2d at 522). There is no requirement of a showing that the employee had a
subjective intent to disregard the employer’s interests. Thompson v. Maine
Unemployment Ins. Comm'n, 448 A.2d at 908. Therefore, looking at petitioner’s behavior
alone to determine her intent, her actions intentionally disregarded her employer’s
interests in obtaining a priority pass and his rule or expectation that she not obtain a
priority for a competitor.
For the reasons stated above, the entry will be:
The decision of the Maine Unemployment Insurance Commission
in the matter of Donna J. Smith, No. 02-C-00295, dated February 22, 2001,
is AFFIRMED.
Dated: December (2 2002 DBR
Donald H. Marden
Justice, Superior Court
Date Filed 3/21/02 Kennebec
APO02-21
County
Action 80C Appeal
Docket No.
Donna Smith
J. MARDEN
Maine Unemployment
VS. Insurance Commission
Plaintiff’s Attorney
Matthew Dyer, Esq.
Pine Tree Legal Assistance
PO Box 2429
Augusta ME 04338
Defendant’s Attorney:
Elizabeth Wyman, AAG
Pamela Waite, AAG
6 State House Station
Augusta ME 04333-0006
‘Notice of Case Filing
s/E. Wyman, AAG
The decision of the Maine Unemployment: Insurance Commission in the matter
of Donna J. Smith, No. 02-C-00295, dated February 22, 2001, is AFFIRMED.
Date of
Entry
3/21/02 Petition for Review, filed. s/M. Dyer, Esq.
issued to parties.
3/27/02 Letter of Appearance of Elizabeth Wyman, AAG on behalf of Maine
Unemployment Insurance Commission, filed.
4/22/02 Administrative Record, filed. s/Wyman, Esq.
Notice of briefing schedule mailed to attys of record.
6/3/02 Brief of Petitioner, filed. s/Jack Comart, for Matt Dyer, Esq.
7/10/02 Brief of Respondent Maine Unemployment Insurance Commission, filed.
s/E. Wyman, AAG (filed 7/5/02)
7/10/02 Petitioner's Reply Brief, filed. s/M. Dyer, Esq.
11/17/02 Hearing had on Appeal on 11/26/02, Hon. Donald Marden, Presiding.
Matthew Dyer-and Elizabeth Wyman present oral arguments to the court.
Court takes matter under advisement.
12/16/02 DECISION AND ORDER, MARDEN, J. (dated 12/13/02):
Copies mailed to attys of record.
Copies mailed to Deborah Firestone, Garbrecht Library and Goss.
12/21/02 Notice of removal of record mailed.