Opinion
21-P-160
03-29-2022
TERRY THOMAS v. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff appeals from a District Court judgment affirming the decision of a review examiner of the Department of Unemployment Assistance (DUA) to deny the plaintiff's claim for unemployment benefits. We affirm.
Background.
The plaintiff worked for Sterling, Corp. from July 2008 until January 2020, initially in the position of "helper." In this role, he worked at Sterling's warehouse, loading and unloading freight trucks. In 2017, the plaintiff was promoted and began working as a driver. This position required that the plaintiff maintain a Class D driver's license.
On January 1, 2020, the plaintiff was arrested and charged with operating his personal vehicle while under the influence of intoxicating liquor (OUI). As a result, his license was suspended for thirty days. The plaintiff informed his supervisor of the suspension and asked whether he could be "[p]ut . . . back in the warehouse or, . . . [made] a helper again." However, on January 8, Sterling sent the plaintiff a letter stating that his employment had been terminated, "due to [the plaintiff's] inability to drive . . . following [his] recent receipt of an OUI citation."
The plaintiff applied for unemployment benefits from the DUA and was denied. The plaintiff appealed, and, after a hearing at which Sterling did not appear, the review examiner affirmed the denial of benefits. Thereafter, the plaintiff filed a complaint in the District Court pursuant to G. L. c. 151A, § 42. This appeal followed.
The board of review denied the plaintiff's application for further review. As a result, the decision of the review examiner became the final decision of the DUA. See G. L. c. 151A, § 41 (c).
Discussion.
The plaintiff's principal dispute on appeal is with the review examiner's determination that his separation from work constituted a "voluntary quit." He also contends that he was denied a fair hearing.
Our review of a DUA review examiner's determination that a claimant is disqualified from receiving benefits is "highly deferential to the agency" (citation omitted), Lincoln Pharm. of Milford, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass.App.Ct. 428, 431 (2009), and limited to deciding "whether the decision contains sufficient findings to demonstrate that the correct legal principles were applied, and whether those findings were supported by substantial evidence." Norfolk County Retirement Sys. v. Director of the Pep't of Labor & Workforce Dev., 66 Mass.App.Ct. 759, 764 (2006).
Here, the review examiner determined that the plaintiff was disqualified pursuant to G. L. c. 151A, § 25 (e) (1), because he voluntarily separated from work and that statute provides that an employee who leaves work voluntarily is not entitled to unemployment benefits. G. L. c. 151A, § 25 (e) (1). "[T]he word 'voluntarily,' as used in § 25 (e) (1), is a term of art that," as interpreted by our cases and the DUA, includes those circumstances where the claimant's own actions or conduct disqualify the claimant from the position in which he had been employed. Olmeda v. Director of the Div. of Employment Sec, 394 Mass. 1002, 1003 (1985). The DUA's interpretation of § 25 (e) (1) "is entitled to substantial deference" because it is "the agency charged with primary responsibility for administering it" (quotation and citation omitted). Raymond F. Gaines's Case, 98 Mass.App.Ct. 205, 207 (2020).
The plaintiff reported that he had been employed as a driver for the past two years, a position that required him to hold a driver's license. The plaintiff also reported that he was discharged from work because his license was suspended after having been charged with OUI. Indeed, during his testimony before the review examiner, the plaintiff recalled that he drove home after drinking "a couple of flutes of Asti Spumante," a decision that he stated was the "[b]iggest mistake of [his] life." We see no error in the review examiner's conclusion that the plaintiff's separation from work, caused by conduct resulting in the suspension of his license, was voluntary within the meaning of § 25 (e) (1), and that he was thus disqualified from receiving unemployment benefits. See Rivard v. Director of the Div. of Employment Sec, 387 Mass. 528, 530 (1982) (employee disqualified from receiving benefits where employee "caused his termination by his own voluntary acts") .
The plaintiff's personnel forms, accepted as exhibits at the hearing, indicated that the plaintiff had "move[d] from [working as a] helper to [working as a] non-cdl driver" in 2017. This, along with the plaintiff's testimony that, after his license was suspended, he asked his employer whether he could be "redirected to another job," shows that the plaintiff understood his position at Sterling was that of a driver, and that the position was predicated on maintaining a valid license.
By statute, the result of the plaintiff's breathalyzer test required automatic administrative suspension of the plaintiff's license. See G. L. c. 90, § 24 (1) (f) (2) . Cf. Leduc v. Commonwealth, 421 Mass. 433, 436 (1995) (suspension until trial on merits not "excessive in relation to [statute's] remedial purpose").
The plaintiff's argument, that his alcoholism "negated the state of mind requirement for a determination of 'voluntary quit, '" is not persuasive because it is unsupported by citation to legal authority. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). Moreover, G. L. c. 151A, § 25 (e) (1), unlike G. L. c. 151A, § 25 (e) (2), does not require that the DUA consider the employee's state of mind in determining eligibility for benefits. See Shepherd v. Director of the Div. of Employment Sec, 399 Mass. 737, 739-740 (1987).
Nor are we persuaded that the plaintiff was deprived of a fair and impartial hearing. Where, as here, an employer does not respond to the DUA's request for information, the review examiner will decide the claim "based on the available information." G. L. c. 151A, § 38 (a.) . Had the plaintiff wished to compel Sterling to produce certain documents or appear at the hearing, he was entitled to a subpoena directing Sterling to do so. See 801 Code Mass. Regs. § 1.02(10)(i) (1998), which was in effect at the time of the hearing ("Parties may issue subpoenas in accordance with M.G.L. c. 30A, § 12[3]). The plaintiff was provided notice of the issue before the review examiner and the relevant statutory provision. At the hearing, he had the opportunity to give testimony, present witnesses, and introduce exhibits. The transcript establishes that he was satisfied with the evidence he presented in support of his claim. Indeed, the administrative record reflects that the plaintiff argued, with some force, that his separation from work was a retaliatory discharge rather than the result of his license suspension. "The review examiner, however, was not required to believe [the plaintiff's] testimony as to the reason for his discharge," Rioni v. Director of the Div. of Employment Sec., 392 Mass. 436, 438 (1984), and, in any event, the plaintiff's argument is belied by the substantial evidence supporting the review examiner's findings. See Leone v. Director of the Div. of Employment Sec, 397 Mass. 728, 732-733 (1986).
Judgment affirmed.
The panelists are listed in order of seniority.