Opinion
10-P-1810
11-22-2011
MATTHEW WININGER v. DIRECTOR OF DIVISION OF UNEMPLOYMENT ASSISTANCE & another. [FN1]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Matthew Wininger, a business development specialist at Technology Sales Leads, Inc., was fired for swearing during a discussion with his supervisor regarding the issuance of a warning for violation of company protocol. After his discharge, Wininger filed a claim for unemployment benefits, which was initially approved by the division of unemployment assistance (DUA). Subsequently, however, a DUA review examiner and the DUA board of review both denied Wininger unemployment benefits. Wininger sought judicial review of the agency decision, G. L. c. 151A, § 42, and a District Court judge reversed the DUA decision, finding that it was not supported by substantial evidence. See G. L. c. 30A, § 14(7). We affirm.
Discussion. This case was governed by the deliberate misconduct prong of G. L. c. 151A, § 25(e)(2). The legislative purpose behind this statutory provision was '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.' Still v. Commissioner of the Dept. of Employment & Training, 423 Mass. 805, 810 (1996), quoting from Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97 (1979). A claimant may not be disqualified absent findings of both deliberate misconduct and wilful disregard of his employer's interest. See Jean v. Director of the Div. of Employment Sec., 391 Mass. 206, 208 (1984). '[T]he 'critical factual issue' in considering whether an employee's alleged misconduct is in wilful disregard of his employer's interest is the employee's state of mind at the time of the misconduct.' Id. at 209, quoting from Torres v. Director of the Div. of Employment Sec., 387 Mass. 776, 779 (1982). In evaluating whether the employee's state of mind showed wilful disregard of the employer's interest, three factors must be considered: the employee's knowledge of the employer's expectations; the reasonableness of those expectations; and the existence of any mitigating factors. See Still, 423 Mass. at 810-811.
When a discharged employee seeks reinstatement of compensation from the board of review, the issue before the board is 'not whether the employer was justified in discharging the claimant but whether the Legislature intended that benefits should be denied in the circumstances.' Garfield, 377 Mass. at 95. '[T]he entire compensation scheme must be 'construed liberally' in favor of the employee, given the overriding purpose of c. 151A 'to lighten the burden which . . . falls on the unemployed worker and his family." Still v. Commissioner of the Dept. of Employment & Training, 39 Mass. App. Ct. 502, 508 (1995), S. C., 423 Mass. 805 (1996), quoting from G. L. c. 151A, § 74.
Here, we agree with the judge that the findings of the review examiner were not supported by substantial evidence. The examiner concluded that the employer reasonably expected employees to 'refrain from directing obscene language at a supervisor.' However, the supervisor acknowledged that there was no such rule -- only his understanding that such an expectation was 'common sense.' There also was testimony, which the examiner did not appear to discredit, that 'swearing' was commonplace around the office. In addition, there was at least one prior incident with another employee involving a heated confrontation with his supervisor that did not result in any sanction to the employee. Finally, from the claimant's acknowledgment that, 'to some extent, it is common sense' not to swear at a supervisor, the examiner concluded, '[t]he claimant was aware of the employer's expectations in this regard.'
This incident occurred essentially in private. The employee's vulgarities were not directed towards a client or anyone outside of the company -- a relevant consideration when the employer asserts that benefits should be denied because of the claimant's deliberate misconduct and wilful disregard of his employer's interests. Contrast Still, 423 Mass. at 807; Gupta v. Deputy Director of the Div. of Employment & Training, 62 Mass. App. Ct. 579, 586 (2004). The employee was not given an opportunity to apologize, either privately or publicly. Contrast Sharon v. Director of the Div. of Employment Sec., 390 Mass. 376, 377- 378 (1983). The employee had never been warned or disciplined in any manner in the past. Contrast Gupta, supra. Nor did the employer present evidence of any other employee disciplined, much less terminated, for a similar incident. In short, the record does not support a conclusion that the claimant knew what would be the consequences of his action or that he acted with intentional disregard of his employer's interest.
Judgment affirmed.
By the Court (Trainor, Fecteau & Hanlon, JJ.),