Opinion
No. 15–P–1691.
11-14-2016
John GODFREY v. DIRECTOR OF the DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Department of Unemployment Assistance (department) appeals from a District Court judge's order remanding the case to the department for additional evidence. See G.L. c. 30A, § 14(6). We vacate the remand order and direct the entry of a judgment affirming the department's decision.
Although the remand order is interlocutory in nature, “a judge's decision to remand a final agency ruling may be appealed by the agency itself.” Chief Justice for Admin. & Mgmt. of the Trial Ct. v. Massachusetts Commn. Against Discrimination, 439 Mass. 729, 730 n. 5 (2003).
Background. The employer, defendant Lenox–Martell, Inc., discharged its employee, plaintiff John Godfrey, shortly after Godfrey's driver's license was suspended as the result of his arrest on June 26, 2014, for operating a company vehicle while under the influence of alcohol (OUI). Godfrey appeared pro se at a hearing before a department review examiner to appeal the denial of unemployment benefits; the controller of Lenox–Martell represented the employer at the hearing. The review examiner affirmed the denial of benefits. Godfrey then sought review with the department's board of review, which affirmed the review examiner's decision.
Represented by counsel, Godfrey filed a complaint in the District Court for administrative review of the department's decision. In his complaint he alleged for the first time that he is “an admitted and recovering alcoholic” and that he lost his job “as the result of actions compelled by his alcoholism,” but that neither he nor the review examiner raised the issue whether the OUI incident was “the result of the compulsion of alcoholism.” A District Court judge remanded the case to the department to “accept evidence on the question of whether or not Godfrey was an alcoholic at the time of this driving incident and if so, whether or not his alcoholism resulted in a discharge from his employment” under G.L. c. 151A, § 25(e ).
Discussion. In an action for judicial review of an agency decision, if the aggrieved party can show that “additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper.” G.L. c. 30A, § 14(6), as appearing in St.1973, c. 1114, § 3. Acting upon Godfrey's motion for remand, the judge found “that there was good reason for [Godfrey] not to have presented evidence of his alcoholism” because “he was not asked a direct question about being an alcoholic and may have thought it irrelevant to his unemployment claim. He may also have been embarrassed about the condition.” The judge also found that such evidence “would be relevant and material.” The department argues that the judge abused his discretion in determining that Godfrey had established “good reason” for his failure to have presented his claim of alcoholism to the department and erred as a matter of law in determining that the claim was material. We agree with the department that Godfrey did not offer good reason for failing to raise the claim in the proceedings before the department.
Given the view we take, we do not address the department's contention that Godfrey's claim of alcoholism was immaterial to any issue before the department.
“Review pursuant to G.L. c. 30A is not the time to insert new issues into the case.” Secretary of Admin. & Fin. v. Commonwealth Employment Relations Bd., 74 Mass.App.Ct. 91, 95 (2009). Even though the review examiner did not ask Godfrey about being an alcoholic, and even if he was too embarrassed to raise the issue on his own or thought it irrelevant, this does not amount to “good reason.” Godfrey “had ample opportunity to present evidence to the review examiner.” Fanion v. Director of the Div. of Employment Sec., 391 Mass. 848, 850–851 (1984). Indeed, he raised a number of similar grounds in proceedings before the department. In his testimony before the review examiner, he gave numerous reasons for his conduct. These ranged from his marital problems and his lack of stable housing to his failure to take anti-anxiety medication. In his written appeal to the board of review, he contended that he “did not deliberately, willingly, or knowingly” violate company policy. Evidence that his conduct was the product of alcoholism would have been consistent with the defenses he actually did raise. In short, “[Godfrey]'s request amounts to no more than a request to retry [his] claim on a different theory and with counsel.” Id. at 851. “This is not a proper use of § 14(6).” Massachusetts Assn. of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 267 (2001).
Godfrey explained that he was on his way home from work when he was stopped for OUI. Just two days before the incident he “wasn't really getting along with [his] wife and she had asked [him] to—“ and he “really didn't have a home.” He drove his company vehicle from Boston to Carver to pick up a prescription. He drank one beer at a restaurant across the street from the pharmacy, but he smelled like beer because he had been working inside a refrigeration unit that smelled like beer.
Godfrey testified that he was not feeling well because he had not taken his medication—Klonopin, for anxiety—all day. When stopped, he was “really upset” and told the police officers that he “hadn't been taking [his] medication and stuff.”
Accordingly, it was an abuse of discretion for the judge to remand the case to the department to take evidence that Godfrey had ample opportunity to offer during the course of the prior proceedings. As Godfrey did not allege in his complaint any other reason for the judge to set aside or modify the department's decision, see G.L. c. 30A, § 16(7), and we detect none, a judgment is to be entered in the District Court affirming the decision of the department. See Boguszewski v. Commissioner of the Dept. of Employment & Training, 410 Mass. 337, 346 (1991).