Opinion
No. 16–P–564.
12-27-2016
Edward SARRO v. CITY OF MALDEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendant, the city of Malden (city), of a decision by a District Court judge that reversed a decision of the board of review of the Department of Unemployment Assistance (DUA) and granted the plaintiff, Edward Sarro, unemployment benefits. We conclude that the DUA decision was supported by substantial evidence, and that the judge erred in determining that the plaintiff was subjected to a disciplinary hearing without proper notice. Accordingly, we reverse.
We note that no judgment appears to have been docketed. Nevertheless, appellate jurisdiction is proper. G.L. c. 151A, § 42.
Background. The essential facts are not in dispute. The plaintiff was employed by the city as a custodian, and worked in the senior center (the center). He was cosupervised by the center director, Sylvia Banos–Aguayo, and the city's director of facilities. On the morning of August 22, 2014, Banos–Aguayo informed the plaintiff that his work hours had to coincide with when the center was open. The plaintiff disagreed with this and became upset. The plaintiff claimed that he knew Banos–Aguayo was not working her scheduled hours, and thus she had no right to talk to him about his hours. The argument ended when Banos–Aguayo, frightened by the plaintiff's aggressive manner, retreated into her office.
The DUA review examiner found that the plaintiff walked towards Banos–Aguayo while making accusations about the hours she kept.
Banos–Aguayo immediately reported the incident to the plaintiff's other supervisor, as well as to the city's human resources (HR) director. The plaintiff was placed on administrative leave with pay, pending a meeting to determine what had happened. On August 26, 2014, the plaintiff met with the HR director. Also present at the meeting were the plaintiff's two cosupervisors—Banos-Aguayo and the director of facilities—as well as the city's attorney. The plaintiff attended the meeting without an attorney. During that meeting, the plaintiff revealed that he had been keeping a written record of Banos–Aguayo's comings and goings to and from the center, which he produced in the form of a notebook. He claimed this supported his argument that because she was not working her required hours, she was in no position to talk to him about his hours. The HR director and the city attorney found the plaintiff's revelation inappropriate and concerning, and ended the meeting so they could speak to the plaintiff privately. They informed him that they would like him to be evaluated by a professional for potential anger management training. They asked the plaintiff to telephone the HR director by the end of the following week to inform her if he would agree to be evaluated. The plaintiff agreed to make the telephone call, the parties shook hands, and the plaintiff thanked them before leaving.
The plaintiff did not contact the HR director by the next Friday. When the HR director contacted him by telephone that day, he informed her that he had not yet decided whether to get the evaluation. On September 5, 2014, the plaintiff arrived at the center to pick up his paycheck, and while there he met with the HR director and the director of facilities. He informed them both that he was not going to attend an anger management evaluation because he did not feel that he did anything wrong and that getting evaluated would be admitting guilt. He also stated that he felt the city was pushing him out by siding with Banos–Aguayo and that he did not want to work for the city anymore.
In a letter dated that same day, the director of facilities informed the plaintiff that his "conduct and judgment" since the August meeting, including not contacting the HR director after he agreed to, was "unacceptable." The letter stated that the plaintiff's "last and final opportunity to retain [his] position with the City of Malden" was to contact a professional for an anger management evaluation by September 9, 2014, or he "may be subject to disciplinary action." If the plaintiff provided proof that an evaluation was scheduled, the director of facilities was "prepared to provide reassignment duties to" him. The plaintiff took no action regarding this letter.
On September 19, 2014, the HR director sent the plaintiff another letter containing his final paycheck. That letter stated that the plaintiff's employment was terminated due to his conduct since the August meeting and his decision not to attend the required evaluation in order to be potentially reassigned. The letter further stated that the city would reconsider the plaintiff's termination if, by October 27, 2014, he attended an anger management evaluation. The plaintiff did not do so.
Discussion. 1. The DUA decision. In a case such as this, our duty is to review the decision of the DUA in accordance with the standards set forth in G.L. c. 30A, § 14(7). Kowalski v. Director of the Div. of Employment Security, 391 Mass. 1005, 1006 (1984). We consider, but do not defer to, the judge's decision. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 224 (1978). Instead, our function is to review the decision of the DUA board of review in accordance with the provisions of § 14. Ibid. Thus, we review the decision to determine whether the correct legal principles were applied, as well as whether the findings were "supported by substantial evidence." Bleich v. Maimonides Sch., 447 Mass. 38, 43 (2006), quoting from Quintal v. Commissioner of the Dept. of Employment and Training, 418 Mass. 855, 858–859 (1994). Substantial evidence is " ‘such evidence as a reasonable mind might accept as adequate to support a conclusion,’ taking ‘into account whatever in the record [fairly] detracts from its weight.’ " Lycurgus v. Director of the Div. of Employment Security, 391 Mass. 623, 627–628 (1984), quoting from New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981). In addition, we must defer to the administrative agency's fact-finding role, including the agency's right "to draw reasonable inferences from the facts found." Smith College, supra .
General Laws c. 30A, § 14(7), as appearing in St.1973, c. 1114, § 3, provides:
"The court may affirm the decision of the agency, or remand the matter for further proceedings before the agency; or the court may set aside or modify the decision, or compel any action unlawfully withheld or unreasonably delayed, if it determines that the substantial rights of any party may have been prejudiced because the agency decision is—(a ) In violation of constitutional provisions; or (b ) In excess of the statutory authority or jurisdiction of the agency; or (c ) Based upon an error of law; or (d ) Made upon unlawful procedure; or (e ) Unsupported by substantial evidence; or (f ) Unwarranted by facts found by the court on the record as submitted or as amplified under paragraph (6) of this section, in those instances where the court is constitutionally required to make independent findings of fact; or (g ) Arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.
"The court shall make the foregoing determinations upon consideration of the entire record, or such portions of the record as may be cited by the parties. The court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it."
A claimant is disqualified from benefits if the individual left work "by discharge shown to the satisfaction of the commissioner ... to be attributable solely to deliberate misconduct in wilful disregard of the employing unit's interest." G.L. c. 151A, § 25(e ), as appearing in St.1992, c. 26, § 19. Deliberate misconduct in wilful disregard of the employer's interest is intentional conduct or inaction that the employee knew was contrary to the employer's interest. Goodridge v. Director of the Div. of Employment Security, 375 Mass. 434, 436 (1978). The "critical factual issue in determining whether an employee's discharge resulted from his wilful or intentional misconduct is the employee's state of mind at the time of his misconduct." Torres v. Director of the Div. of Employment Security, 387 Mass. 776, 779 (1982). "The apparent purpose of [§ 25(e ) ] then is to deny benefits to a claimant who has brought about his own unemployment through intentional disregard of standards of behavior which his employer has a right to expect." Garfield v. Director of the Div. of Employment Security, 377 Mass. 94, 97 (1979).
We conclude that the DUA decision was supported by substantial evidence. Specifically, the DUA found that the plaintiff "deliberately and intentionally refused to comply with [the request to be evaluated], nor did the [plaintiff] present any mitigating circumstances that might have offset the apparent willfulness of his misconduct in disregard of the [city's] interests." This finding is supported by the record. The plaintiff was told in both the September 5 and September 19 letters that failure to attend an evaluation would be deemed unacceptable and would result in disciplinary action. Indeed, the judge below specifically confirmed this, finding that "[t]here is no question that [the plaintiff] chose to do something different than what his supervisor ordered him to do." In his DUA appeal documentation, the plaintiff admitted that he was aware that failure to attend an evaluation would result in his termination. Therefore, there is substantial evidence to support the finding that the plaintiff's termination was brought about by his wilful disregard of his employer's interests, namely, his failure to be evaluated for anger management training.
The city's determination that the plaintiff must attend an anger management evaluation before being considered for reassignment was reasonable in the circumstances. The DUA noted that, after the plaintiff engaged in behavior toward his supervisor that was "reasonably construed as hostile or aggressive" and displayed a notebook containing detailed observations he had made about her, the city "developed a reasonable concern about whether or not [the plaintiff] harbored and/or could control hostility toward his supervisor." The city has an interest in protecting its employees from abuse, and given that the plaintiff had frightened Banos–Aguayo and revealed that he had been monitoring her and keeping a written record, the city reasonably concluded that an anger management evaluation was necessary. Thus, the judge erred in finding that "[t]he necessary factors to establish the plaintiff's state of mind regarding his wilful disregard of the employer's interest were not met."
We also note that the city was prepared to continue the plaintiff's employment by reassigning him after the evaluation was completed, and they extended that offer twice before terminating that plaintiff's employment. This contradicts the plaintiff's claim that the city was attempting to push him out of his job.
2. Due process issues. Even though the judge found that the plaintiff had acted in wilful disregard of his employer's interests, he nonetheless reversed the DUA decision after finding that the plaintiff was subjected to a disciplinary hearing without proper notice. He bases this finding on the HR director's response to a question whether the city has a formal hearing process, where she stated, "We do. And typically it's in writing to the employee with the city solicitor, with whomever is involved, and offering them the opportunity to bring who they want with them." This statement is not sufficient to support a finding that the August meeting was a disciplinary hearing that deprived the plaintiff of his due process rights. The HR director stated multiple times during her testimony that the meeting was intended to be an informal way to gather information on the argument, and that the request to attend anger management evaluation came only after the plaintiff's revelations. In addition, the plaintiff's termination was not a result of his behavior during the argument with Banos–Aguayo; his termination was a result of his refusal to comply with his employer's request to attend an anger management evaluation. This request was made in response to the plaintiff's revelation, during the meeting, that he had been keeping records of his supervisor's comings and goings. During the period between the meeting and his termination, the plaintiff was represented by counsel, and had full notice, via the two letters sent to him, of the consequences that would result from his failure to attend an evaluation.
The plaintiff testified that he spoke with his attorney prior to the August meeting.
Furthermore, the plaintiff, as an at-will employee of the city, was not entitled to a full disciplinary hearing before being terminated. "[T]he interest of a government employee in retaining his job can be summarily denied. It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer." DeCanio v. School Comm. of Boston, 358 Mass. 116, 123–124 (1970), quoting from Cafeteria & Restaurant Wkrs. Union, Local 473 v. McElroy, 367 U.S. 886, 896 (1961). The plaintiff has not cited, and we are unaware of, any statute or case law that holds that an at-will government employee is entitled to a full disciplinary hearing before being terminated.
The decision of the DUA board of review was correct, finding the plaintiff ineligible to receive unemployment benefits. Accordingly, the decision of the District Court is reversed and a judgment is to enter affirming the decision of the DUA board of review in favor of the city. In addition, any benefits that have been paid erroneously are recoverable pursuant to G.L. c. 151A, § 42B, and G.L. c. 151A, § 69.
See note 1, supra.
So ordered.