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Ellery v. Dept. of Labor (corrected 1-14-00)
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 194 
Docket:	 Yor-99-321
Argued:	December 6. 1999
Decided:	December 23, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

RAYMOND M. ELLERY

v.

DEPARTMENT OF LABOR
 
UNEMPLOYMENT INSURANCE COMMISSION

and

PARKER HANNIFIN CORPORATION

RUDMAN, J.
 
	[¶1]  The Unemployment Insurance Commission and Parker Hannifin
Corporation (employer) appeal from a judgment entered in the Superior
Court (York County, Perkins, A.R.J.) vacating the Commission's decision that
Raymond Ellery was discharged for misconduct and, therefore, ineligible for
unemployment benefits.  The Commission and employer assert that
competent evidence supported the Commission's finding and that the
Commission properly applied the applicable law.  We agree and vacate the
judgment of the Superior Court. 

I.  FACTS

	[¶2]  Parker Hannifin, a manufacturer of pump parts, employed
Raymond Ellery from November 1987 to May 12, 1997, as a "first class
press operator."  In 1994, Ellery complained of pain in his arms and legs. 
After Ellery reported his injuries to his employer, his supervisor assigned
him to light duty that included a modification of his regular work and some
work as an engineering technician. 
	[¶3]  Ellery was examined by the employer's physical therapist in
March 1995.  The therapist determined that Ellery was improving and
designed a plan to transition Ellery from physical therapy to a work-
hardening program that would increase his endurance and ability to perform
his job.  Eleven months passed before Ellery began his first work-hardening
program.  In the interim, he worked as a tool kitter, preparing paperwork
for the presses.
	[¶4]  Ellery participated in the first work-hardening program for four
months.  He then notified his supervisors that the pain in his arms and legs
was increasing.  Ellery's supervisors ended the first work-hardening
program.  Ellery was then examined by his doctor.  The doctor restricted
Ellery's repetitive work with his left hand and wrist to no more than thirty
minutes per hour.  Stacy Doyon, a physical therapist, performed a work site
evaluation before Ellery began the second work-hardening program.  
	[¶5]  Doyon evaluated the machines that Ellery used in both his light
duty job and his regular job and she also evaluated Ellery operating the
machines.  Doyon provided specific ways for Ellery to decrease the muscle
strain on his hand and wrist by altering his hand positions as he performed
his job.  She also recommended that Ellery make slow controlled motions
when operating the machines instead of his habitual "quick, jerky motions." 
She recognized that the majority of her recommendations required Ellery to
change his habits.  Doyon concluded that Ellery would be able to return to
"his regular job as long as he continues to monitor himself."  She advised a
gradual return to his regular job, four hours the first week and then two
additional hours for the next two weeks.  Ellery began the second work-
hardening program sometime in October 1996, but this effort only lasted for
one to two months.  
	[¶6]  When Ellery was off the presses, he assisted an engineer during a
company audit.  Ellery hoped to become a Tool Engineer for his employer. 
He had been taking classes for an associate's degree in technical graphics
and design technology and applied for a position posted within the
company, but he was not qualified for the position.  The employer asked
Ellery to return to his regular job when the audit was complete, but Ellery
warned that if he did, his arms would hurt.  
	[¶7]  After being back at his regular job for only a week, Ellery
complained that his pain was worsening; he went to a doctor who
proscribed Ellery's use of the presses.  Based upon the March 4, 1997
doctor's note, the employer ended the second program and sent Ellery back
to tool kitting.  The employer disagreed with the doctor's diagnosis because
the employer thought that the doctor had relied on inaccurate information
provided by Ellery.   
	[¶8]  The employer organized a team meeting to address Ellery's
problem.  The meeting included Ellery, his physician, physical therapist, his
supervisor, manager, general manager and human resources specialist.  They
met on April 24, 1997, and determined that Ellery would gradually return to
the presses in accordance with Doyon's October 1996 work-hardening
program.  The team modified the 1996 program to make it easier for Ellery
to follow.  The employer stated that if Ellery needed to ice his arm, he could
do so whenever necessary and suggested that Ellery receive therapy for his
stress.  Ellery refused the counselling.  Doyon agreed to reevaluate the work
site before the third work-hardening program began and did so on
May 9, 1997.
	[¶9]  After Doyon reevaluated the facilities, she, Ellery, his supervisor,
manager, and human resources specialist finalized the third work-hardening
program and agreed to begin the program on May 12, 1997.  The program
was extended from six to eleven weeks and Ellery and his supervisors
scheduled weekly progress meetings.  The employer also relieved Ellery of
his duty to scoop powder.
	[¶10]  On May 12, 1997, the work-hardening program was to begin. 
Ellery's manager arrived early to ensure that the program went smoothly. 
Ellery, however, approached his manager and told him that he refused to
participate in the work-hardening program.  Ellery tried to rely on his
March 4th doctor's note that stated "no use of the presses."  Ellery stated "I
plan to clean out my toolbox today - I'm taking my tools home so you guys
can't put me on a press.  You guys can either find me a job that I can do or
pay me worker's compensation."  His manager confirmed that Ellery was
refusing the program and asked him to go home so that the manager could
sort out the issue.  The manager helped him clean out his tools and carried
them to his car for him. 
	[¶11]  Later that morning, two managers and the human resources
specialist called Ellery at home.  They asked him if he was unwilling to
attempt the work-hardening program and he said, "For the second time,
yes, I'm not going to do it."  They told Ellery that his employment would be
terminated and that they considered his refusal to participate in the
program a resignation.  
	[¶12]  Ellery applied for unemployment compensation.  The employer
objected on the grounds that Ellery voluntarily terminated the employment
relationship.  The unemployment deputy officer found that Ellery did
voluntarily leave.  Ellery appealed to an administrative hearing officer, who
held a hearing and determined that Ellery was ineligible for unemployment
benefits pursuant to 26 M.R.S.A. § 1193(2){1} because his employer
discharged him for misconduct.{2}  Ellery then appealed to the
Unemployment Insurance Commission.  The Commission relied upon the
transcript of the hearing before the administrative hearing officer and
affirmed his decision.  Ellery petitioned for reconsideration, but the
Commission denied that request.  He next appealed to the Superior Court
and the court vacated the Commission's decision.  The court found that the
record did not support the Commission's findings.  This appeal followed.

II. STANDARD OF REVIEW

	[¶13]  When examining the Superior Court's review of an
Unemployment Insurance Commission decision, we directly review the
Commission's decision to determine whether "there exists any competent
evidence to support the [Commission's] findings and then ascertain whether
upon those findings the applicable law has been correctly applied."  See
Lewiston Daily Sun v. Unemployment Ins. Comm'n, 1999 ME 90, ¶ 7, 733
A.2d 344, 346 (internal citations omitted).  We do not accord special
deference to the Superior Court on such matters.  See Macaro v. Town of
Windham, 468 A.2d 604, 605 (Me. 1983).  We will not overrule the
Commission's findings of fact if the findings are supported by substantial
evidence.  See Lewiston Daily Sun, ¶ 7, 733 A.2d at 346.  Substantial
evidence is defined as "such relevant evidence as a reasonable mind might
accept as adequate to support the resultant conclusion."  Id.  We refrain
from assessing credibility because credibility is within the province of the
fact finder.  See Nisson v. Maine Employment Sec. Comm'n, 455 A.2d 945,
949 (Me. 1983). 
	[¶14]  The unemployment benefits statute states that an employee is
disqualified from receiving unemployment benefits if he was discharged for
misconduct.  See 26 M.R.S.A. § 1193(2) (1988).  The relevant statute
defines misconduct as conduct demonstrating "an intentional and
substantial disregard of the employer's interests or of the employee's duties
and obligations to his employer."   26 M.R.S.A. § 1043(23) (1988).  
A two-step analysis is required to determine misconduct: "(1) the
employer must have a reasonable standard for discharge and (2) the
employee must have acted unreasonably in failing to meet that standard."
Forbes-Lilley v. Maine Unemployment Ins. Comm'n, 643 A.2d 377, 379 (Me.
1994). 

III. REASONABLENESS OF EMPLOYER'S EXPECTATION

	[¶15]  The law requires that the employer's standard or expectation
be reasonable.  See id.  The evidence on the record supports the
Commission's finding that the employer had a reasonable expectation that
Ellery would participate in the work-hardening program.  See Thompson v.
Maine Unemployment Ins. Comm'n, 490 A.2d 219, 222 (Me. 1985)
(discussing reasonable expectation of employer).  The employer made a
concerted effort to address Ellery's physical ailments.  The employer ceased
Ellery's first work-hardening program when he complained of pain.  The
employer then allowed a physical therapist to evaluate its work place and
complied with the therapist's request that Ellery gradually return to his job. 
It also placed Ellery in a tool kitter job for almost eleven months.  When
Ellery was unable to complete the second work-hardening program after
being returned to his regular job, the employer conducted a meeting with
Ellery's doctor, physical therapist, and all of Ellery's supervisors.  The
employer offered counselling and had its work place re-evaluated for the
third work-hardening program.  It extended the work-hardening program
from six to eleven weeks; told Ellery that he could ice his arms whenever
necessary; and relieved Ellery of his obligation to scoop powder.  Ellery
agreed to the third work-hardening.
	[¶16]  Ellery asserts that the employer was unreasonable because the
employer did not install handles on some cabinet drawers; grease the
wheels of those cabinets; and provide a spatula or an ergonomic scoop.  
Although these accommodations may have eased Ellery's working
conditions, they were not necessary for Ellery to perform the work-
hardening program.  The physical therapist stated in her evaluation that the
majority of Ellery's injuries could be cured by Ellery changing and
monitoring his hand positions.  The foregoing evidence substantially
supports the Commission's finding that the employer had a reasonable
expectation that Ellery would participate in the third work-hardening
program. 

IV. UNREASONABLENESS OF ELLERY'S CONDUCT

	[¶17]  The Commission must determine Ellery's unreasonableness
upon an objective manifestation of intent evidenced by the circumstances of
the case.  See Forbes-Lilley, 643 A.2d at 379;  Thompson,  490 A.2d at 222. 
We will not vacate the Commission's finding of unreasonableness if "the
Commission could have justifiably determined that the employee's conduct
was of a type, degree, or frequency that was so violative of the employer's
interests that it may reasonably be deemed tantamount to an intentional
disregard of those interests." Forbes-Lilley, 643 A.2d at 379.  Here, the
evidence before the Commission justified the conclusion that Ellery
intentionally disregarded his employer's interests.  See id.  Ellery's refusal
to participate in the work-hardening program constituted an intentional
disregard of the employer's interests because Ellery refused to make an
effort to perform the job he was hired to do.  See  26 M.R.S.A. § 1043(23).
	[¶18]  In conclusion, the evidence before the Commission substantially
supported its finding that Ellery was not entitled to unemployment benefits
because he was discharged for misconduct.
	The entry is:
Judgment vacated.  Remand for entry of
a judgment affirming the decision of the
Unemployment Insurance Commission.
Attorney for plaintiff:

James L. Audiffred, Esq., (orally)
P O Box 1005
Saco, ME 04072-1005

Attorneys for defendants:

Andrew Ketterer, Attorney General
Elizabeth J. Wyman, Asst. Attorney General, (orally)
Gwendolyn D. Thomas, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Alison A. Denham. Esq., (orally)
Douglas, Denham, Rogers & Hood
P O Box 7108
Portland, ME 04112-7108
(for Parker Hannifin)