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Smart v. M.U.I.C. (corrected 3-4-97)
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 31
Docket:  PEN-96-561
Submitted on briefs February 14, 1997
Decided February 28, 1997

Panel:  WATHEN, C.J., GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

BRIAN SMART v. MAINE UNEMPLOYMENT INSURANCE COMMISSION

CLIFFORD, J.

	[¶1]  Brian Smart appeals from the judgment entered in the Superior
Court (Penobscot County, MacInnes, A.R.J.), affirming the decision of the
Maine Unemployment Insurance Commission (Commission) disqualifying
him for unemployment benefits.  The disqualification was based on a finding
that the claimant voluntarily left his employment without good cause
attributable to his employment within the meaning of 26 M.R.S.A. §
1193(1)(A) (Supp. 1996).  On appeal, Smart contends that the Commission
erred in determining that he voluntarily left work.  We disagree and affirm
the judgment.
	[¶2]  Smart worked as a line cook at the Governor's Restaurant in Old
Town from February 16, 1994, until July 9, 1995.  On July 2, 1995, Smart
informed his employer that he was leaving his employment in two weeks to
accept a job in Florida.  The employer accepted Smart's verbal notice of
resignation.  Smart was scheduled to work and did so during the next week. 
Although the employer scheduled Smart the same days for week of July
10th, after reviewing this schedule, Smart told his employer that he could
not work on either Saturday or Sunday of that week.  Saturday and Sunday
were generally the busiest two days at the restaurant.  Consequently, the
employer removed Smart from the schedule entirely and did not pay Smart
for the second week of the notice period.
	[¶3]  Pursuant to 26 M.R.S.A. § 1194(1) (1988), Smart applied for
unemployment benefits on July 17, 1995, and the restaurant contested the
claim.  The deputy disqualified him for benefits and found that Smart had
"left his regular employment voluntarily on 07/09/95 in hopes of relocating
to Florida for a potential job opportunity," and stated that the
"circumstances leading to the claimant's separation were not caused by the
employment and were beyond the responsibility and control of the
employer."  26 M.R.S.A. § 1194(2) (1988).  Smart appealed to the Division
of Administrative Hearings.  26 M.R.S.A. § 1194(2).  The Division
determined that Smart was discharged but not for misconduct connected
with his work under 26 M.R.S.A. §§ 1193(2) and 1043(23).  Smart was
granted unemployment benefits from July 16, 1995.
	[¶4]  The employer appealed this decision to the Commission. 26
M.R.S.A. § 1194(3) (1988).  The Commission reversed the decision of the
administrative hearing officer and concluded that Smart had voluntarily left
his employment without good cause attributable to the employment.  Smart
was denied unemployment benefits, and an overpayment of $2,250.00 was
established for the benefits he had received until that date.  Smart appealed
the Commission's decision to the Superior Court pursuant to 26 M.R.S.A.
§1194(8) (Supp. 1996) and 5 M.R.S.A. §§ 11001-11008 (1989).  The court
affirmed the Commission's decision on the grounds that it was supported by
the record and correct as a matter of law.  Smart then appealed.
	[¶5]  Smart contends that the plain language of the statute
demonstrates that he did not voluntarily leave work.  Smart argues that he
was terminated during the week of July 9, 1995, and that the employer's
actions in terminating his employment preclude a finding that he left
"voluntarily."  The Commission contends that its decision that Smart left his
employment voluntarily without good cause is supported by the record.  The
voluntary nature of Smart's resignation, it contends, does not change unless
an intervening event, such as the employer's acceptance of a retraction of
that resignation or rehiring him, occurred.
	[¶6]  When the Superior Court reviews the decision of the
Commission, we review the Commission's decision directly.  Spear v. Maine
Unemployment Ins. Comm'n, 505 A.2d 82, 83 (Me. 1986).  We examine the
record not only to determine whether competent evidence exists to support
the Commission's findings, but also to determine whether the Commission
has correctly applied controlling law.  Brousseau v. Maine Employment Sec.
Comm'n, 470 A.2d 327, 329 (Me. 1984).
	[¶7]  The Commission determined that Smart voluntarily left his
employment pursuant to 26 M.R.S.A. § 1193(1)(A) (Supp. 1996).{1}  Within
the context of 26 M.R.S.A. § 1193(1)(A), a claimant leaves employment
"voluntarily" only when he freely makes an affirmative choice to do so. 
Brousseau v. Maine Employment Sec. Comm'n, 470 A.2d at 330.  Chapter 18
of the Rules Governing Administration of the Employment Security Law
defines discharge as a "termination of the employer-employee relationship
which is initiated by the employer . . . ."  In this case, that Smart intended
to leave his job is clear.  The only question is whether the employer's
decision to remove Smart from the schedule one week before the end of his
notice period converted his resignation into a discharge.  Because the
Commission's determination that Smart's voluntary departure was not
altered by the employer's decision to remove him from the schedule  is not
clearly erroneous we affirm the Superior Court's affirmation of the
Commission's decision.
	[¶8]  The Commission found no intervening event that would justify
converting Smart's unequivocal resignation into a discharge.  See Brooking
v. Maine Employment Sec. Comm'n, 449 A.2d 1116, 1118 (Me. 1982) (the
rehiring of an employee at a second restaurant constitutes an intervening
event that overrides employee's original resignation); Gannett Publishing Co.
v. Maine Employment Sec. Comm'n, 317 A.2d 183, 187 (Me. 1974)
(resignation is an unconditional event that cannot be altered unless the
employer rehires employee or accepts retraction of notice).  Smart was
scheduled to work during the final week of his notice period but refused to
work for the two busiest of his last six scheduled days.  As a result, the
employer determined that it was in its best interest to remove Smart from
the work schedule one week prior to the end of his notice period.  The
Commission's determination that the employer's action was a reasonable
and sound business decision and did not alter the legal significance of
Smart's earlier resignation is not clearly erroneous.
	[¶9]  Finally, the Commission's finding that Smart left his employment
without good cause is supported by the record.  See Smith v. Maine
Employment Sec. Comm'n, 440 A.2d 1037, 1039 (Me. 1982) (mere
dissatisfaction with one's wages and benefits does not constitute good
cause).  The voluntary leave disqualification of 26 M.R.S.A. § 1193(1)(A),
therefore, prohibits Smart from receiving benefits.
	 The entry is:
								Judgment affirmed.

Attorney for plaintiff: Wayne Foote, Esq. Foote & Temple P O Box 1576 Bangor, ME 04402-1576 Attorneys for defendant: Andrew Ketterer, Attorney General Pamela W. Waite, Asst. Atty. General 6 State House Station Augusta, Maine 04333-0006
FOOTNOTES******************************** {1} 26 M.R.S.A. § 1193(1)(A) provides in pertinent part: § 1193 Disqualification An individual shall be disqualified for benefits: 1. Voluntarily leaves work. A. For the week in which the claimant left regular employment voluntarily without good cause attributable to that employment. The disqualification continues until the claimant has earned 4 times the claimant's weekly benefit amount in employment by an employer.