Opinion
No. 15–P–1332.
07-12-2016
Phyllis JOHNSON v. DIRECTOR OF the DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A review examiner of the Department of Unemployment Assistance (department) found the plaintiff, Phyllis Johnson, ineligible for benefits on the ground that she had engaged in deliberate misconduct by refusing to sign her performance review and a written warning. See G.L. c. 151A, § 25(e )(2). The board of review (board) denied the application for review. A judge of the Boston Municipal Court affirmed the board's denial. On appeal, the plaintiff contends that the review examiner's findings were not supported by substantial evidence, and that the review examiner applied the wrong legal standard. We affirm.
Discussion. “We review the board's decision to determine whether it was unsupported by substantial evidence, arbitrary, capricious, or otherwise based on an error of law.” Lincoln Pharmacy of Milford, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass.App.Ct. 428, 431 (2009). Evidence is substantial when a reasonable mind might accept it as adequate to support a conclusion. Ibid. (quotation omitted). Although we review legal questions de novo, we “defer to the agency's interpretation and application of the statute within which it operates.” Tri–County Youth Programs, Inc. v. Acting Deputy Director of the Div. of Employment & Training, 54 Mass.App.Ct. 405, 408 (2002). Furthermore, we defer to the board on issues of credibility and the weight of evidence, see Leone v. Director of the Div. of Employment Sec., 397 Mass. 728, 731 (1986), and will not displace the board's choice between conflicting views, see Rioni v. Director of the Div. of Employment Sec., 392 Mass. 436, 438 (1984).
Johnson was an employee of the Office of the Inspector General. After her full-time position was eliminated, she assumed half-time status in November of 2013. In May of 2014, she provided confidential feedback concerning the director. Five weeks later, on June 19, 2014, she was given a performance review which was critical of her performance. She was given the opportunity to read it in private, after which the director reviewed it with her. The hearing examiner found that Johnson was “argumentative and combative” during the meeting.
Johnson was asked to sign the evaluation, which contained the following language after the signature line: “ *I acknowledge that I have read this appraisal and that I have been given the opportunity to provide comments below. My signature does not indicate my agreement or disagreement with the contents of this review. Furthermore, I understand that a copy of this evaluation will be placed in my personnel file.” Johnson did not sign the evaluation.
The director also issued a written warning dated June 19, 2014, for insubordination, unprofessional conduct, and unsatisfactory performance. Johnson was also asked to sign the written warning, which contained the following language after the signature line: “I acknowledge that I have read this memorandum. My signature does not indicate my agreement or disagreement with the contents of this document. Furthermore, I understand that a copy of this memorandum will be placed in my personnel file.” She declined to sign.
The director told Johnson that by refusing to sign the documents she was refusing a direct order from a supervisor, and that her signature did not mean that she agreed with the content of the documents only that she received the documents. The director then told Johnson that she could have more time to review the documents, and until June 24, 2014, at the latest, to sign them.
Johnson then filed a complaint with the human resources director alleging age and race discrimination and retaliation. A third-party investigator was hired by the employer to investigate the claims. On June 24, 2014, the director sent Johnson an e-mail asking her whether she was ready to turn in the documents. On June 25, 2014, Johnson responded, stating that she was not yet done reviewing the documents. That same day, the director responded to Johnson asking that she sign the documents or, if she needed more time, to let him know how much time she would need. Johnson did not respond to the director. She did not provide the director with the signed documents.
Subsequently, the matter was held in abeyance pending the discrimination and retaliation investigation. The investigation did not support Johnson's allegations, and on October 15, 2014, Johnson was called to a meeting and asked to sign the performance review and an updated written warning. She refused to sign the documents. At no time during the meeting did Johnson request more time to review the documents. After being warned that further refusal to sign the evaluation and the warning would be grounds for discharge, Johnson wrote “Read employees [sic ] attached response 10/15/14” on both documents. The claimant was thereafter discharged for insubordination.
The updated written warning contained a comment that Johnson had forwarded work e-mails to her personal email account, and it further indicated that Johnson would be required to attend certain meetings to review her performance.
Johnson contends that the review examiner failed to consider all of the attendant circumstances of the discharge, and that her factual findings were not supported by substantial evidence. The review examiner found that Johnson's claims that the warning was slightly different and that she needed additional time to review the updated documents were not the real reasons that she did not sign the documents. By way of evidentiary support, she found that when given additional time on June 19, 2014, Johnson did not read the documents, and that she knew from that meeting that she could ask for time to review the documents privately. The review examiner therefore discredited her testimony as to the reasons for her refusal to sign on October 15, 2014. At the end of the day, the inescapable fact remains that she did not sign the documents, in contravention of a direct order to do so. The review examiner's factual finding that “she had no intention of providing her signature on the documents” is supported by the evidence. See Leone, 397 Mass. at 731.
The claimant also contends that the review examiner applied an incorrect legal standard, because the employee's state of mind is the critical factor in determining whether the employee has engaged in deliberate misconduct, and that she did not engage in “deliberate misconduct in willful disregard of the employer's interest.” See Still v. Commissioner of the Dept. of Employment & Training, 423 Mass. 805, 810 (1996) ; G.L. c. 151A, § 25(e)(2). However, the factual finding that the claimant had no intention of signing the document is such a factual predicate, and is dispositive of this issue on appeal. See Gupta v. Deputy Director of the Div. of Employment & Training, 62 Mass.App.Ct. 579, 584 n. 5 (2004).
Judgment affirmed.