Cheney v. Maine Unemployment Ins. Comm.

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss CIVIL ACTION

DOCKET NO. AP14-71

SARAH E. CHENEY,

Petitioner

v. DECISION

MAINE UNEMPLOYMENT

INSURANCE COMMISSION

Petitioner Sarah E. Cheney filed a M.R. Civ. P. SOC appeal from the Decision of

the State of Maine Unemployment Insurance Commission ("Commission") finding

she is not eligible to receive unemployment benefits because she is not "available" to

work pursuant to 26 M.R.S § 1192(3). For the reasons discussed below, the Court

affirms the Commission's Decision and denies Petitioner's appeal.

Petitioner is a mother of five-children who has historically worked full-time,

primarily as a retail worker. Most recently, she worked as a cashier for the Augusta,

Maine Mobil on the Run gas station and convenience store, owned and operated by

Global Montello Group. Petitioner worked for Global Montello Group from

November 2008 until November 2013. She typically worked 40 hours a week,

working second or third shift during the week, with Mondays and Thursdays off and

working any shift on both weekend days.

In 2013, Petitioner took maternity leave from Global Montello Group for the

birth of her youngest son and returned to work on November 6, 2013. When

Petitioner returned to work, she was not provided an adequate place to pump

breast milk. On November 8, 2013, Petitioner provided her two-weeks notice to her

employer, stating that she was forced to resign due to her employer's failure to

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accommodate her need to pump breast milk throughout her shift and the

employer's refusal to accommodate her scheduling requests.

Due to a change in her husband's work schedule, Petitioner can only work

from 6:30p.m. until 6:30a.m. Monday through Friday, but is available for all shifts

on Saturday and Sunday when her husband can be home with their children.

Petitioner has transportation, is willing to commute as far as thirty miles, and is

willing to accept a minimum wage job. Petitioner obtained her GED and has been a

member of the workforce for the past ten years. As of at least February 27, 2014, she

has not turned down any job offers since she last worked.

Petitioner applied for unemployment benefits, but was denied by Deputy

Decision No.8, which found that she was not "available" to work. 1 Petitioner

appealed this decision to the Division of Administrative Hearings and, on February

27, 2014, a hearing was held. On February 28, 2014, the Hearing Officer issued a

decision finding that Petitioner was not able and available for work and hence,

disqualified from receiving unemployment benefits. Petitioner appealed that

decision to the Commission, which upheld the Hearing Officer's finding that

Petitioner is not available to work in a 2-1 majority decision.

The Commission majority explained that, "[a]s found by the Hearing Officer,

[Petitioner] was not available to work during the hours for which she could

reasonably be expected to work in her usual and customary occupation as a retail

1 Petitioner was also denied benefits by Deputy Decision No.6, which found that she

voluntarily left her employment without good cause attributable to the employment.

That decision was appealed and eventually reversed by the Commission. The

question of whether Petitioner voluntarily left her employment without good cause

is not at issue in the present appeal.

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worker." Previously, the Commission noted, Petitioner had worked all hours of the

day and days of the week as a retail worker. As a result, given her new restrictions,

"she was not available to work during the hours in which she could reasonably be

expected to be employed within the meaning of 26 M.R.S. § 1192(3) and the [Code of

Maine] Rules as stated in Chapter 9(2)(A) ofthe Rules [governing the

Unemployment Insurance Commission, which state that], "[c]laimants whose

occupations normally involve working on more than one shift must be available to

work on all such shifts."

The Commission majority also found that the "record does not show that

[Petitioner] was able and available for full-time work in occupations that did not

require weekday daytime hours" and that her unavailability from 6:30a.m. to 6:30

p.m. "generally encompasses standard hours for any retail establishment or

occupation or business for which [Petitioner's] prior training and experience would

make her fitted or qualified." Finally, the Commission majority determined that

Petitioner's situation does not fall within the exception for availability based on

parental obligations and does not otherwise constitute good cause. Petitioner

appealed from that Decision to the present Court.

In reviewing decisions of the Maine Unemployment Insurance Commission,

the Court's review is "limited to determining whether the Commission correctly

applied the law and whether its fact findings are supported by any competent

evidence." See McPherson v. Maine Unemployment Ins. Comm'n, 1998 ME 177, ~ 6,

714 A.2d 818. The Court will not disturb a decision of the Commission "unless the

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record before the Comtnission compels a contrary result." /d.; see also Gerber Dental

Center v. Maine Unemp1oyment Ins. Comm'n, 531 A.2d 1262, 1263 (Me. 1987).

Furthermore, the Court "will not overrule findings of fact supported by

substantial evidence, defined as 'such relevant evidence as a reasonable mind might

accept as adequate to support the resultant conclusion."' Lewiston Daily Sun v.

Maine Unemployment Ins. Comm'n, 1999 ME 90, ~ 7, 733 A.2d 344 (quoting Crocker

v. Maine Unemployment Ins. Comm'n, 450 A.2d 469,471 (Me.1982)). When

conflicting evidence is, presented, such conflicts are for the fact finder to resolve.

Bean v. Maine UnemplcPyment Ins. Comm'n, 485 A.2d 630, 634 (Me. 1984). In

particular, credibility determinations are "exclusively the province of the

Commission and will not be disturbed on appeal." Sprague Electric Co. v. Maine

Unemployment Ins. Comm'n, 544 A.2d 728, 732 (Me. 1988). Stated differently, the

Court may not substitute its judgment for that of the agency merely because the

evidence could give rise to more than one result. Dodd v. Secretary of State, 526 A.2d

583, 584 (Me. 1987) (titing Gulick v. Bd. of Envtl Protection, 452 A.2d 1202, 1209

(Me. 1982)). "The buJtden of proof clearly rests with the party seeking to overturn

the decision of an administrative agency." Seven Islands Land Co. v. Maine Land Use

Regulation Comm'n, 450 A.2d 475,479 (Me. 1982) (citation omitted).

In addition, th¢ Court gives "considerable deference to an agency's

interpretation of its own internal rules, regulations, and procedures and will not set

[a decision] aside, unless the rule or regulation plainly compels a contrary result."

Downeast Energy Co. v. Fund Ins. Review Bd., 2000 ME 151, ~ 13, 756 A.2d 948

(quotation omitted). "The [agency's] decision will not be disturbed ifitresults from

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a reasonable exercise of discretion and is supported by substantial evidence in the

record." Pine Tree Telephone & Telegraph Co. v. Public Utilities Commission, 634 A.2d

1302,1304 (Me. 1993). Nevertheless, ifthe Court determines thatthe Commission

committed an error oflaw, it must reverse or modify the Commission's decision.

McPherson v. Maine Unemployment Ins. Comm'n, 1998 ME 177, ~ 6, 714 A.2d 818. In

determining whether the Commission has correctly applied the law, it is critical to

consider "the purposes of the Employment Security Act" whose "remedial

nature ... dictates a liberal construction in favor of the employee" and that "[a]ny

disqualification, being penal in nature, must be strictly reviewed." Brousseau v.

Maine Employment Security Comm'n, 470 A.2d 327,329 (Me. 1984).

Petitioner argues that the Commission committed an error of law by finding

that she was not available to work within the meaning of the Employment Security

Act. First, she argues that the Commission turned an objective inquiry into the

nature of an occupation requiring availability during the hours which are customary

for the trade or occupation, into a subjective standard requiring Petitioner to be

available for all shifts because she personally worked various shifts in retail. She

argues that just because she has worked first, second, and third shifts at various

points does not mean that retail work, as an occupation, normally involves working

all three shifts. Furthermore, Petitioner contends that out of state authority has held

that an unemployment applicant with limited availability is still eligible for benefits

if those limitations do not have the effect of removing the applicant from the labor

market. (citing Hospital Service Ass'n of Northeastern Penn. v. Penn. Unemployment

Compensation Bd. of Review, 476 A.2d 516,517 (Pa. 1984) (finding that claimants

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who were only available to work the night shift due to child care obligations during

the day were eligible to receive unemployment benefits)).) In this case, Petitioner

contends benefits are warranted because Ms. Cheney is available to work

approximately 108 out of the 168 hours in a week and "there certainly are retail

jobs with late night, overnight and weekend shifts for which Ms. Cheney is available

to work."

Second, Petitioner argues that the Commission erred in failing to apply 26

M.R.S. § 1192(3) to determine Petitioner's availability to work in another

occupation for which she is qualified. As an initial matter, Petitioner contends that

she put forth the necessary evidence of her education and work history to allow the

Commission to determine the other trade, occupation, profession, or business for

which her prior training or experience shows she is fitted or qualified. (quoting 26

M.R.S. § 1192(3).). Petitioner shows that she is qualified for any entry level position

requiring, at most, a high school education, such as late-night or overnight cleaning,

call center or answering service operator, night time receptionist, or factory worker.

Rather than consider these positions, Petitioner contends the Commission dodged

the issue and held, without mentioning any other occupations, that her

unavailability during weekday daytime hours means she is unavailable to work in

retail or any other occupation she may be qualified for.

Third, Petitioner contends that her child-care responsibilities constitute good

cause for the limitations on her availability to work pursuant to 12-172 C.M.R. Ch. 9

§ 2(A) and Section 1192(3). While acknowledging that the Law Court has not

reached this issue, Petitioner points to out of state authority which has found that

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day time child care obligations may constitute cause of a necessitous and compelling

nature (quoting Hospital Service Ass'n of Northeastern Penn., 476 A.2d at 517 n.4

("Domestic responsibilities, including the care for small children, may constitute

cause of a necessitous and compelling nature".) Petitioner then argues that Section

1192(3)'s explicit carve out for unavailability due to child care between midnight

and 5 a.m. recognizes that child-care obligations can create an exception to the

availability requirements of the statute and rule.

Fourth, Petitioner argues that the Commission's Decision should be reversed

because it is contrary to the Employment Security Act and public policy. Keeping in

mind the purpose of the Employment Security Act to prevent the spread, and lighten

the burden of unemployment, Petitioner argues the Commission's Decision should

be reversed because its reasoning insinuates that a caretaker who needs to be home

with children during the day, but is available 108 out of 168 hours during the week

is "unavailable" for work Petitioner also argues that given the nature of her

restrictions, the Commissions' ruling, in effect, disproportionately disadvantages

women who remain the primary caretakers of children.

The Commission responds that its finding is based upon substantial evidence

in the record and a reasonable interpretation of the Employment Security Law.

First, the Commission explains that its determination that Petitioner was not

available to work during the hours for which she could be reasonably expected to

work as a retail worker was supported by substantial evidence on the record. In

particular, it points to Petitioner's inability to work on weekdays from 6:30a.m. to

6:30p.m., her history of working all hours ofthe day and days of the week as a retail

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worker, and Chapter 9(2)(a)'s requirement that "[c]laimants whose occupations

normally involve working on more than one shift must be available to work on all

such shifts." (quoting 12-172 C.M.R. Ch. 9 § 2(A).)

Second, the Commission explains that it found Petitioner was not available to

work in other occupations because she was not available for work on weekdays

from 6:30a.m. to 6:30p.m. The Commission contends that it made an appropriate

finding based upon common sense and its expertise in employment matters, that

Petitioner's unavailability during weekdays from 6:30a.m. to 6:30p.m. was within a

timeframe that generally encompasses standard hours for any retail establishment

or occupation or business for which Petitioner's prior training and experience

would make her fitted or qualified. The Commission also argues that its Decision

does not result in the conclusion that the Petitioner must be available 24/7 in order

to receive benefits. Instead, it argues that it found Petitioner was not available for 60

daytime hours over the course of five-week days, which "generally encompasses

standard hours for any retail establishment."

Third, the Commission argues that it considered and rejected Petitioner's

argument that her inability to work all shifts due to child-care issues was for good

cause. The Commission's Rules allow exceptions to the availability for work

requirement for "good cause" which includes, among others, "causes of a

necessitous and compelling nature. (citing 12-172-C.M.R. Ch. 1 § 3(T.) The

Commission argues that it reasonably concluded that Petitioner's child-care issues

did not constitute good cause of a necessitous and compelling nature because they

were ongoing and not an emergency.

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Fourth, the Commission argues that as an initial matter, Petitioner's public

policy arguments are for the Legislature to consider, not the Court. The Commission

then contends that, in any event, the Legislature has considered Petitioner's public

policy arguments as evidenced by Section 1192(3)'s exception that allows

unavailability due to child-care obligations during the hours between midnight and

5 a.m. Based on the rule of interpretation that express mention of one concept

implies the exclusion of others not listed, the Commission argues that the

Legislature determined that child-care obligations between the hours of 5 a.m. and

midnight do not constitute an exception for a workers availability. (citing Musk v.

Nelson, 647 A.2d 1198, 1201 (Me. 1994) and Wescottv. Allstate Ins., 397 A.2d 156,

169 (Me. 1979)).)

Petitioner replies that the Commission did not determine her availability to

work in another occupation despite adequate record evidence. Petitioner argues

that it strains credulity to assert that given Petitioner's GED and ten years of work

experience, there is no other occupation for which she is qualified and that the

Commission could not, in its expertise and based on common sense, find was

available given Petitioner's restrictions. The Commission, however, failed to do this

and simply found Petitioner was unavailable without mentioning any other

occupations. This, Petitioner contends, constitutes an error of law.

Finally, Petitioner replies that the Court may consider the purposes of the

Employment Security Act and the public policy implications of the Commission's

Decision because the Commission's Decision is plainly contrary to the remedial

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nature of the statute-dictating a liberal construction in favor of the employee-

since it does not lighten the burden of a large class of unemployed workers.

Under the Employment Security Law, an unemployed individual is eligible

for unemployment benefits with respect to any week only if:

The individual is able to work and is available for full-time work at the

individual's usual or customary trade, occupation, profession or

business or in such other trade, occupation, profession or business for

which the individual's prior training or experience shows the

individual to be fitted or qualified ... provided that no ineligibility may

be found solely because the claimant is unable to accept employment

on a shift, the greater part of which falls between the hours of

midnight to 5 a.m., and is unavailable for that employment because of

parental obligation ... and provided that an unemployed individual who

is neither able nor available for work due to good cause as determined

by the deputy is eligible to receive prorated benefits for that portion

of the week during which the individual was able and available.

26 M.R.S. § 1192(3). Chapter 9 of the Rules Governing the Administration of the

Employment Security Law sets forth the factors to be considered when addressing

the question ofwhether an individual is able and available for work. 12-172 C.M.R.

Ch. 9 § 2. Regarding availability for work, Chapter 9 explains, in pertinent part:

In order to meet the availability for work requirements of the

Employment Security Law, a claimant must be available to accept

work during the hours which are customary for the trade or

occupation in which he usually works or for the trade or occupation in

which he has prior training or experience. Claimants whose

occupations normally involve working on more than one shift must be

available to work on all such shifts ....

12-172 C.M.R. Ch. 9 §2(A). In addition, Chapter 1 of the Rules defines "good cause"

for purposes of not being available, as follows:

Good Cause. For the purposes of the Employment Security Law and

regulations, the Commission determines that "good cause" shall be

when the unemployed individual is ill, or when illness of the

unemployed individual's spouse or children, or parents, or

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stepparents, brothers or sisters, or relatives who have been acting in

the capacity of a parent of either the claimant or spouse, require his or

her presence; or he or she is in attendance at a funeral of such

relative; or required by religious conviction to observe a religious

holiday; or required by law to perform either a military or civil duty;

or other cause of a necessitous and compelling nature ....

12-172 C.M.R. Ch.1 § 3(T) (emphasis added).

The Court finds that substantial evidence supports the Commission's finding

that Petitioner was not "available" to perform retail work within the meaning of 26

M.R.S. § 1192(3) and 12-172 C.M.R. Ch. 9 §2(A). The record is clear that Petitioner is

not available to work from 6:30a.m. through 6:30p.m. The Commission, informed

by Petitioner's history of working all hours of the day and days of the week in prior

retail jobs, concluded that her occupation-retail work-"normally involves

working on all shifts .... " In light of 12-127 C.M.R. Ch. 9 § 2(A)'s requirement that, in

order to be available, claimants "whose occupations normally involve working on

more than one shift must be available to work on all such shifts ...," the Commission

concluded that Petitioner was not "available" to perform retail work. (emphasis

added). While this finding does imply that in order to be "available" to perform

retail work, a claimant must be available 24/7, it is consistent with Section 1192(3)

and the Commission's Rules.

The Court finds that the Commission did not abuse its discretion or commit

an error of law by finding that Petitioner was not "available" to work in another

trade, occupation, profession, or business for which her training or experience

shows she is fitted or qualified. This is because the Commission's determination

that Petitioner's unavailability between 6:30a.m. to 6:30p.m. "generally

encompasses standard hours for any retail establishment or occupation or business

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for which" Petitioner is qualified is a reasonable exercise of the Commission's

discretion, informed by its expertise in the labor market. While Petitioner makes a

rather compelling argument that she could work a number of positions that involve

late-night or overnight shifts, the Commission implicitly found that Petitioner's time

restrictions limit are substantial enough to render her unavailable within the

meaning of the Employment Security Act.

The Court finds that the Commission did not err in determining that

Petitioner's child-care responsibilities did not constitute good cause for the

limitations on her availability to work. As elaborated upon by the Commission, the

fact that Section 1192(3) includes a child-care carve out between the hours of

midnight and 5 a.m. indicates that no such carve out exists for child-care during the

other hours of the day. Musk v. Nelson, 647 A.2d 1198, 1201-1202 (Me. 1994)

("express mention of one concept [in a statute] implies the exclusion of others")

(citation omitted). With this in mind, it cannot be said that the Commission abused

its discretion in finding that Petitioner's child-care issues do not otherwise

constitute "good cause" based on their "necessitous and compelling nature" because

they involve an on-going, non-emergency situation.

The Court finds that the Commission's Decision is not contrary to the

Employment Security Act or public policy. While the primary purpose of the

Employment Security Act is to ameliorate the effect of unemployment on workers,

this policy is not pursued without limits. See Cornwall Industries, Inc. v. Maine Dep't

of Manpower Affairs, 351 A.2d 546,552 (Me. 1976). Instead, the Legislature, and the

Commission, crafted statutes and regulations to enforce and carry out those goals.

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Pertinent to the present dispute is the Legislature's express carve-out that prohibits

the Commission from finding a claimant ineligible simply because he or she cannot

work a shift that falls primarily between the hours of midnight to 5 a.m. due to

parental obligations. 26 M.R.S. § 1192(3). This carve-out indicates that the

Legislature was aware of the plight of unemployed parents with parental obligations

and chose to lessen their burden by not requiring them to be available between

midnight and 5 a.m. By limiting this carve out to the hours between midnight and 5

a.m., the Legislature implicitly determined that parental obligations during the

remaining hours of the day do not, by themselves, constitute good cause for being

unavailable. See Musk, 647 A.2d at 1201-1202. 2

The entry will be:

The Decision of the Unemployment Insurance Commission

#14-C-02918, dated September 30, 2014 is AFFIRMED.

Clerk may docket by reference.

October 13, 2015

JUSTICE, SUPERIOR COURT

2This result in this case is disturbing to the court for two reasons. Here is a woman

ready, willing and able to work full time as in the past albeit during certain hours,

hours which are considered highly undesirable to others. And, her limitations are

based upon her need to meet parental responsibilities.

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Date Filed 10/29/14 Kennebec Docket No. AP-14-71

County

Action: Petition for Review J. Marden J. Mullen

soc

Sarah E. Cheney vs. Unemployment Insurance Cmsn

Plaintiff's Attorney Defendant's Attorney

Adrianne Fouts, Esq. Nancy Macirowski, MG

84 Marginal Way, Ste. 600 6 State House Station

Portland, ME 04101-2480 Augusta, ME 04333-0006

Date of Entry

11/04/14 Petition for Review of Final Agency Action, filed (10/29/14). s/Fouts, Esq.

11/14/14 Letter entering appearance for UIC, filed. s/Macirowski, MG

12/2/14 Administrative Record, filed 12/1/14. s/Macirowski, MG

12/2/14 Notice and Briefing Schedule issued.

Copy to Atty Fouts and MG Macirowski

1/7/15 Consent Motion to Enlarge Time for Petitioner to File Brief, filed 1/6/15. s/Fouts, Esq.

1/13/15 ORDER, Mullen, J. (1/9/15)

Motion to Enlarge Time to file brief is GRANTED. Brief due 1/19/15.

Copy to Atty Fouts and MG Macirowski

1/21/15 Second Consent Motion to Enlarge Time for Petitioner to File Brief, filed ( 1/16/15)

s/Fouts, Esq.

1/26/15 ORDER, Mullen, J.

Motion to Enlarge, Granted (1/23/15). Deadline for Petitioner to file brief is extended

to January 27,2015.

1/30/15 Brief of Petitioner, filed (1/26/15). s/Fouts, Esq.

3/4/15 Respondent's Brief, filed (2/16/15). s/Macirowski, MG

3/17/15 Petitioner's Reply Brief, filed (3/13/15). s/Fouts, Esq.

7/2/15 Oral argument scheduled for 8/5/15 at 9:30

Notice of Hearing sent to Atty Fouts and MG Macirowski

7/20/15 Oral argument rescheduled for 8/11/15 at 9:30

Corrected Notice of Hearing sent to Atty Fouts and MG Macirowski

Page 1 AP-14-71