MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2016 ME 105
Docket:   Ken-15-572
Argued:   June 9, 2016
Decided:  July 12, 2016

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
                HUMPHREY, JJ.


                                SARAH E. CHENEY

                                         v.

                   UNEMPLOYMENT INSURANCE COMMISSION

MEAD, J.


         [¶1]    Sarah E. Cheney appeals from a judgment of the Superior Court

(Kennebec County, Marden, J.) affirming a decision of the Unemployment

Insurance Commission that upheld a hearing officer’s decision denying her claim

for unemployment benefits on the ground that she was not available to work

full-time within the meaning of 26 M.R.S. § 1192(3) (2015) and Commission

rules.    Cheney contends that the Commission erred in its construction of the

statute, and that its decision is contrary to public policy. We affirm the judgment.

                                 I. BACKGROUND

         [¶2] The following facts, drawn from the administrative record, are not

disputed. Sarah Cheney began working for Global Montello Group Corporation at

the Augusta “Mobil on the Run” gas station and convenience store in
2

November 2008, eventually becoming assistant manager. She normally worked

forty hours per week on shifts encompassing weekends and some weekdays.

Cheney was on maternity leave from mid-August 2013 until November 6, 2013.

When she returned, disputes with her employer arose over a change to her schedule

that made her childcare situation more difficult, and over an appropriate place for

her to pump breast milk at work. Two days later, due primarily to the latter issue,

she gave her two-week notice.

        [¶3] Cheney’s claim for unemployment benefits was denied by the Bureau

of Unemployment Compensation in two Deputy’s Decisions, both issued

January 22, 2014.          The first, Deputy’s Decision No. 6, ruled that Cheney

voluntarily left her employment without good cause.1                           The second, Deputy’s

Decision No. 8, ruled that Cheney was not “able to work and available for work”

within the meaning of 26 M.R.S. § 1192(3).2

        [¶4] Cheney appealed both decisions to the Department of Labor’s Division

of Administrative Hearings. See 26 M.R.S. § 1194(3) (2015). After holding

telephonic hearings on the appeals, during which Cheney testified, the Hearing

    1
      Title 26 M.R.S. § 1193(1)(A) (2015) provides, in part, that, “An individual shall be disqualified for
benefits . . . [f]or the week in which the claimant left regular employment voluntarily without good cause
attributable to that employment.”
    2
      The statute provides, in part, that “[a]n unemployed individual shall be eligible to receive benefits
with respect to any week only if . . . [t]he individual is able to work and is available for full-time work at
the individual’s usual or customary trade, occupation, profession or business . . . .” 26 M.R.S. § 1192(3)
(2015).
                                                                                3

Officer affirmed both Deputy’s Decisions. Cheney appealed the Hearing Officer’s

decisions to the Unemployment Insurance Commission pursuant to 26 M.R.S.

§ 1194(3), (5) (2015). In the first of two September 30, 2014, decisions, the

Commission set aside Deputy’s Decision No. 6 upon finding that the lack of a

suitable place to pump breast milk constituted good cause for Cheney to leave her

employment. That decision is not before us on appeal. The second decision

affirmed Deputy’s Decision No. 8, finding that Cheney “was not able and available

for full-time work within the meaning of 26 M.R.S. § 1192(3) and Chapter 9(2)(A)

of the Rules.”

      [¶5] Pursuant to M.R. Civ. P. 80C, Cheney petitioned the Superior Court to

review the Commission’s “able and available” decision. The court affirmed, and

Cheney appealed.

                                   II. DISCUSSION

A.    The Commission’s Decision

      [¶6]       We directly review the Commission’s decision.         Ramelli v.

Unemployment Ins. Comm’n, 2016 ME 6, ¶ 2, 130 A.3d 963. “Our review is

limited to determining whether the Commission correctly applied the law and

whether its factual findings are supported by any competent evidence.”        Id.

(alterations and quotation marks omitted). In conducting our review,
4

      [w]e 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. With
      respect to the law, we review de novo issues of statutory
      interpretation. However, we defer to an agency in those areas within
      its expertise unless a statute or regulation compels a contrary result.

Sinclair Builders, Inc. v. Unemployment Ins. Comm’n, 2013 ME 76, ¶¶ 9-10,

73 A.3d 1061 (citations and quotation marks omitted).                The burden of

demonstrating that a contrary result is compelled rests with Cheney as the party

seeking to overturn the Commission’s decision. Bischoff v. Bd. of Trustees, 661

A.2d 167, 170 (Me. 1995); see Schwartz v. Unemployment Ins. Comm’n, 2006 ME

41, ¶ 8, 895 A.2d 965.

      [¶7] The Commission based its decision on statutory provisions and rules

derived from those provisions. Pursuant to statute:

      An unemployed individual shall be eligible to receive 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; and . . . is actively seeking work in
      accordance with the regulations of the commission; 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
                                                                                 5

      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). “Good cause” as used in section 1192(3) “includ[es] child

care emergencies.” 26 M.R.S. § 1192(13) (2015).

      [¶8] The Commission’s rules provide that

      [i]n order to be considered to be “available for work,” a claimant must
      be “attached to the labor market.” This means that he must be ready
      and willing to accept work for which he is qualified under the
      conditions which would normally be associated with the labor market.
      He must be available to work in locations in which, and during the
      hours in which, he could reasonably be expected to be employed.

      ....

      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.

5 C.M.R. 12 172 009-2 § 2(A) (2004).

      [¶9]   Here, although the Commission noted Cheney’s availability and

willingness to work many hours during the week, the facts found by the

Commission in denying Cheney’s claim are supported by substantial record

evidence, and the statutes and rules cited supra do not compel a result contrary to

its decision. See Sinclair Builders, Inc., 2013 ME 76, ¶¶ 9-10, 73 A.3d 1061.
6

Cheney testified before the Hearing Officer that her normal occupation was retail

work; that over the course of a given year during her ten-year career in that

occupation she worked all days of the week on varied shifts, including day shifts

starting at 5:30 a.m. and overnight shifts lasting until 6:00 a.m.; and that since

January 6, 2014, she was unable to work her normal retail schedule because of her

husband’s job change and its impact on her childcare situation, and as a result she

was restricted to working weekdays from 6:30 p.m. until 6:00 a.m., and at any time

on the weekend.

      [¶10] The Commission found that by her own testimony, Cheney was not

“available for full-time work at [her] usual or customary . . . occupation,” 26

M.R.S. § 1192(3), because she was not available to work daytime shifts during the

week—shifts that she had worked in the past. That restriction on her availability

also runs afoul of Rule 2(A), which requires that “[c]laimants whose occupations

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

such shifts.” 5 C.M.R. 12 172 009-2 § 2(A) (2004).

      [¶11] Concerning the statutory alternative condition for eligibility, namely

that Cheney be “available for full-time work . . . in such other trade, occupation,

profession or business for which [her] prior training or experience shows [her] to

be fitted or qualified,” 26 M.R.S. § 1192(3), the Commission found that the record

did not demonstrate that she could work in a retail position that did not require any
                                                                                   7

weekday daytime hours, hours that it found “generally encompass[] standard hours

for any retail establishment or occupation.” We defer to the Commission’s finding

concerning the standard hours required for retail work as an “area[] within its

expertise.” Sinclair Builders, Inc., 2013 ME 76, ¶ 10, 73 A.3d 1061 (quotation

marks omitted).

      [¶12] Further supporting the Commission’s decision, the Legislature has

explicitly preserved eligibility for benefits for workers who cannot, due to

“parental obligation,” which would include childcare obligations, work shifts for

which the majority of the hours are midnight to 5:00 a.m. 26 M.R.S. § 1192(3).

As the Commission concluded, the implication of that exception is that eligibility

for benefits is not similarly protected for workers who cannot work other shifts

because of childcare obligations—in this case, daytime shifts during the week. If

eligibility were protected for those shifts as well, then logically the statute would

contain a childcare exception that was not time-restricted. See Musk v. Nelson, 647

A.2d 1198, 1201-02 (Me. 1994) (“[A] well-settled rule of statutory interpretation

states that express mention of one concept implies the exclusion of others not

listed. The statute [at issue] provides a single exception and implicitly denies the

availability of any other.” (citation omitted)).

      [¶13] Finally, the “good cause” provision of section 1192(3), providing that

“an unemployed individual who is neither able nor available for work due to good
8

cause as determined by the deputy is eligible to receive prorated benefits,” is not

triggered on these facts. The statute defines “good cause” as including “child care

emergencies,” implicitly excluding the kind of ongoing childcare situation that

Cheney testified to. 26 M.R.S. § 1192(13); see Musk, 647 A.2d at 1201-02. If

“good cause” encompassed Cheney’s situation, then the word “emergencies” is

superfluous, and when construing statutes we do not ignore language chosen by the

Legislature. See Blue Yonder, LLC v. State Tax Assessor, 2011 ME 49, ¶ 10,

17 A.3d 667 (“Words in a statute must be given meaning and not treated as

meaningless and superfluous.” (quotation marks omitted)).

      [¶14]   In sum, although the Commission recognized that its result was

“unfortunate[]” given Cheney’s “commendable” willingness to work many hours

during the week, a different result is not compelled by either statute or rule.

See Sinclair Builders, Inc., 2013 ME 76, ¶ 10, 73 A.3d 106.

B.    Public Policy

      [¶15] Cheney argues that the Commission’s result is contrary to public

policy because she is denied the protection of the Employment Security Law, see

26 M.R.S. § 1041 (2015), despite being willing and available to work full time.

That is an argument for the Legislature. See State v. Brown, 2014 ME 79, ¶ 1 n.1,

95 A.3d 82 (stating, in discussing other state policies, that “[t]hese policy

arguments are more appropriately addressed to the Maine Legislature”).
                                                                                  9

      [¶16]   In 1957, the Legislature stated the public policy underlying the

unemployment compensation system.          P.L. 1957, ch. 381, § 1 (effective

Aug. 28, 1957) (codified at 26 M.R.S. § 1042 (2015)). The Legislature has since

refined its declaration of public policy by enacting provisions protecting the

eligibility of workers facing childcare hardship in two circumstances: (1) when

required to work shifts for which the majority of the assigned hours are midnight to

5:00 a.m., and (2) when facing a “child care emergenc[y].”              26 M.R.S.

§ 1192(3), (13). It has given no similar indication that denying unemployment

benefits to a worker in Cheney’s situation violates public policy. Although we

have held that “Maine’s Employment Security Law is remedial legislation

mandating a liberal construction in favor of the claimant,” we have also recognized

that “a court may not enlarge the scope of the Employment Security Law.”

Ramelli, 2016 ME 6, ¶ 10, 130 A.3d 963 (citation and quotation marks omitted).

      The entry is:

                      Judgment affirmed.
10


On the briefs:

        Adrianne E. Fouts, Esq., Drummond Woodsum, Portland, for
        appellant Sarah E. Cheney

        Janet T. Mills, Attorney General, and Nancy Macirowski, Asst.
        Atty. Gen., Office of the Attorney General, Augusta, for
        appellee Unemployment Insurance Commission


At oral argument:

        Adrianne E. Fouts, Esq., for appellant Sarah E. Cheney

        Nancy Macirowski, Asst. Atty. Gen.,               for    appellee
        Unemployment Insurance Commission



Kennebec County Superior Court docket number AP-2014-71
FOR CLERK REFERENCE ONLY
