Opinion
15-P-184
03-08-2016
SWANSEA WATER DISTRICT v. DIRECTOR OF UNEMPLOYMENT ASSISTANCE, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, to whom we shall also refer as Lawrence, appeals from a District Court order for judgment affirming the decision of the board of review (board) of the Department of Unemployment Assistance denying his application for unemployment benefits after he resigned his employment with the Swansea Water District (water district). At issue is whether the employee established "by substantial and credible evidence that he had good cause for leaving attributable to the employing unit." G. L. c. 151A, § 25(e), as appearing in St. 1992, c. 26, § 19. We affirm.
On December 23, 2010, Lawrence filed a claim for unemployment compensation. The department denied his claim on February 9, 2011. He appealed and a review examiner in the hearings department affirmed the department's decision. The employee sought a further appeal to the board, which, on July 27, 2011, reversed the review examiner's decision. Although the board adopted the review examiner's findings, it also relied on the employee's testimony that he spent eight to ten hours per week on work he performed on the computer while on call. This finding had not been made by the review examiner. But on the basis of that new finding, the board reversed on the ground that the employee resigned because he was not being compensated for overtime pay he was due.
The water district appealed to the District Court, which, on July 26, 2012, reversed the board's decision on the ground that it was not supported by the facts it (the board) had adopted (the eight to ten hours per week finding was not made by the review examiner). On October 22, 2012, the employee filed a motion for relief from judgment in the District Court, alleging newly discovered evidence. That new evidence was in the form of affidavits from two former commissioners which indicated that the seventy-five dollar stipend was compensation only for carrying the cellphone and computer and to be available, but that to the extent any time spent on the cellphone or computer was in excess of the regular forty hour workweek, the employee should be compensated with overtime pay. The District Court allowed the motion on April 11, 2013, and remanded the matter back to the board to evaluate the new evidence. The board, in turn, remanded to the review examiner to do the same.
After a new hearing, the review examiner issued consolidated findings to the board that incorporated several new findings concerning the affidavits that essentially questioned their authenticity. Specifically, the findings noted that the affidavits were not notarized and that the commissioners who signed the affidavits were on the commission when it voted that there was no entitlement to additional compensation for work done on the computer while on call. In addition, one of the affiants was on the board at the time the employee was awarded unemployment compensation by the department, and voted to appeal the award.
The board adopted the review examiner's consolidated findings and ruled that the employee had failed to meet his burden of establishing "by substantial and credible evidence" that he had good cause for leaving his employment. G. L. c. 151A, § 25(e)(1). Specifically, the board noted that the review examiner found that the water district did not expect the employee to work on the computer except in a momentary fashion, and that the employee, even after a remand, had failed to offer anything to support his assertion that he regularly conducted extensive work on the computer. The board noted that the affidavits were not notarized, that neither former commissioner appeared at the hearing to be cross-examined, and that both affidavits stopped short of stating that the employee had been required to work any cognizable overtime. The board's decision concluded:
"Given the claimant's failure even after remand to substantiate his assertion that he had been required to perform uncompensated overtime work, he has not met his burden to establish that he had good cause attributable to the employer for leaving his employment, as meant under G. L. c. 151A, § 25(e)(1). . . . We, therefore, conclude as a matter of law that the claimant is not entitled to benefits . . . because he voluntarily resigned from his employment without good cause attributable to the employer."The water district sought further judicial review with the District Court, which had retained jurisdiction; the District Court affirmed the board's decision and ordered entry of judgment for the water district. The employee has timely appealed.
Despite the order's reference that judgment was to enter for the water district, no separate judgment entered on the docket.
The decision of the board "may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Den Herder v. Director of the Div. of Unemployment Assistance, 82 Mass. App. Ct. 701, 703 (2012), quoting from Coverall N. America, Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852, 857 (2006). We "'give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.' G. L. c. 30A, § 14(7)." Ibid.
Ordinarily, "[c]laimants who leave work voluntarily without good cause attributable to their employer are temporarily disqualified from receiving benefits" under G. L. c. 151A, § 25(e)(1). Ducharme v. Commissioner of the Dept. of Employment & Training, 49 Mass. App. Ct. 206, 208 (2000). It is the employee's burden to prove circumstances establishing that he or she had good cause to leave. Ibid.
The employee challenges a number of the board's findings as not being supported by substantial evidence: that the employee did not work eight to ten hours per week on the computer while on call, that the employee failed to submit evidence supporting his assertion that he worked eight to ten hours on the computer, that the computer could only identify, not cure faults detected by the system, and the employee did not resign for health reasons. We are unpersuaded. The consolidated findings were each supported by substantial evidence.
The employee also claims the decision was infected with legal error, specifically that the on-call requirements resulted in him working overtime for which he was not compensated. Substantial evidence supports the board's finding that his work on the computer while on call was momentary. The employee argues that even if the work was momentary, he was entitled to overtime pay because it was in addition to his regular work schedule. However, Lawrence cites no authority to support his argument that "momentary" work while on call violates c. 151, § 1A (requiring overtime pay for work in excess of 40 hours per week) and c. 151, § 1B (prohibiting any agreement to forgo overtime pay).
The employee also argues that the board's reference to the original 2012 judgment of the District Court infected the decision with legal error. Essentially, he argues that the board, on remand, should have been bound by its prior finding that he worked eight to ten hours per week while on call, despite the District Court's determination that the finding was not supported by substantial evidence. He argues that because the District Court vacated its earlier decision on his rule 60(b) motion, it had no effect and the board committed legal error when it acknowledged the District Court's ruling on the matter. The argument is nonsensical and without merit. The purpose of the remand was to provide Lawrence with an opportunity to submit additional evidence to support his assertion that he actually "worked" while on call and that he was entitled to overtime pay for that work. Failure to acknowledge the District Court's prior decision in that context would have made no sense.
Lawrence also claims the board committed legal error on remand by considering anything other than the affidavits submitted to the District Court. He argues that the remand order was confined only to an evaluation of the credibility of the former commissioners' affidavits, and that the board exceeded the scope of the remand by revisiting the issue of whether the employee had worked overtime while on-call. As the affidavits specifically concerned the issue whether work on the computer while on call was subject to overtime pay, it was within the scope of the remand. Again, Lawrence's argument that the board was bound by its earlier finding that he worked eight to ten hours of overtime is nonsensical in light of the District Court's earlier ruling that the finding was not supported by substantial evidence.
Finally, the employee argues that the board's decision must be vacated because it failed to make any credibility findings concerning the affidavits as required by the District Court's remand order. The review examiner's findings, adopted by the board, implicitly determined that the affidavits lacked credibility, including findings that they were not notarized and that the positions stated in the affidavits were contrary to positions the affiants took while commissioners of the water district.
For these reasons we affirm the District Court's order for judgment and deny the employee's request for appellate attorneys' fees and costs.
Order for judgment affirmed.
By the Court (Cypher, Wolohojian & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 8, 2016.