Opinion
No. 12–P–1225.
2013-07-15
Justin L. BARRETT v. DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
By the Court (MILKEY, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
While employed as a Boston police officer, plaintiff Justin L. Barrett composed and widely disseminated an electronic mail message (e-mail) that contained patently offensive comments. After the Boston police department (BPD) learned of this, it placed him on paid administrative leave and eventually terminated him. On April 26, 2010, the Department of Unemployment Assistance (DUA) denied Barrett unemployment benefits. Following an administrative hearing, a review examiner reversed, but on the city's appeal, the board of review (board) reinstated the agency's initial determination. On Barrett's judicial appeal, a Boston Municipal Court judge ruled in Barrett's favor. We now reverse.
Background.
On July 22, 2009, the Boston Globe newspaper published an opinion piece commenting on the Cambridge police department's widely publicized arrest of a well-known college professor. Two days later, Barrett sent an e-mail to the columnist regarding her opinion piece and the underlying news story. Barrett's e-mail was astonishingly inappropriate in numerous respects, including but not limited to its use of racial epithets.
The board of review adopted the review examiner's findings of fact. The dispute before us is over whether the uncontested findings are sufficient to support the board's ruling.
Although Barrett sent the e-mail from a personal account, on his personal computer, while he was off duty, and signed it using only his initials, he identified himself in the e-mail as a “current police officer.” He sent the e-mail to the Boston Globe columnist and to the personal e-mail addresses of a number of his friends, including two other Boston police officers from his station and members of the public who knew he was a Boston police officer.
For example, Barrett's e-mail included several references to the professor—who is African–American—as a “jungle monkey.” Barrett also stated that the professor “is a suspect and will always be a suspect,” and said that if he (Barrett) had been in the Cambridge police officer's position, he “would have sprayed him in the face with [pepper spray] deserving of his belligerent noncompliance.”
The e-mail was further disseminated by its recipients, and it became a topic of discussion inside Barrett's police district station house.
Barrett testified at the DUA hearing that he sent the e-mail to around fifty people listed in his e-mail address book, including a total of five police officers.
Barrett's supervisor learned of the e-mail and commenced the disciplinary action that resulted in Barrett's termination. The e-mail also became more publicly known, and it and Barrett became a topic of discussion in the broadcast media; Barrett was even interviewed on major network news programs.
Although the hearing examiner made no findings on this point, there was uncontested testimony that the district station had been the site of racial tension in the past, and that the police captain believed the e-mail could set back strides the police had made to heal racial strife there.
Discussion. The board concluded that Barrett was ineligible for unemployment benefits because his termination was “attributable to deliberate misconduct in wilful disregard of the employing unit's interest.” G.L. c. 151A, § 25( e ) (2), as appearing in St.1992, c. 26, § 19. That the e-mail constituted “misconduct” cannot seriously be questioned; indeed, it violated several prohibitions in the BPD's “Rules and Procedures” regarding standards of conduct and public integrity, which specifically apply to off-duty conduct, and which also specifically prohibit discriminatory conduct while on or off duty. Barrett acknowledged in writing that he had read the policies, and that he had undergone diversity training both in the military and at the BPD. Similarly, because the e-mail harmed the BPD's interests in many different obvious ways, that the e-mail was sent in “disregard” of his employer's interests also cannot seriously be questioned.
Barrett's principal argument on appeal, as it was throughout these proceedings, is that the employer failed to carry its burden regarding his state of mind. See Commissioner of the Dept. of Employment & Training v. Dugan, 428 Mass. 138, 142 (1998). To justify the denial of benefits, the employer was required to prove both that Barrett's misconduct was “deliberate” and that his disregard of his employer's interest was “wilful.” Ibid. We disagree with Barrett's contention that these points were not established by substantial and credible evidence.
“The phrase ‘deliberate misconduct in wilful disregard of the employing unit's interest’ has been interpreted to cover any ‘intentional conduct or inaction which the employee knew was contrary to the employer's interest.’ “ Gupta v. Deputy Director of the Div. of Employment & Training, 62 Mass.App.Ct. 579, 585 (2004), quoting from Still v. Commissioner of the Dept. of Employment & Training, 423 Mass. 805, 810 (1996). That Barrett's conduct in sending the e-mail was “intentional” is readily apparent from the record. Rather than an ill-considered statement made in the heat of the moment, the e-mail was a lengthy written response to a newspaper column, sent two days following the column's publication. Contrast Still, supra at 808. The intentional nature of the act, combined with Barrett's familiarity with the policies it violated, suffice to show “deliberate misconduct.”
As for whether the action was taken in “wilful disregard” of the employer's interest, the three key considerations are “the worker's knowledge of the employer's expectation, the reasonableness of that expectation and the presence of any mitigating factors.” Id. at 810–811, quoting from Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97 (1979). Barrett was fully aware of his employer's expectations, including that he not “use epithets or terms that tend to denigrate any person(s) due to their race, color, creed or sexual orientation.” (Rule 102, Sec. 9, of BPD “Rules and Regulations.”) Such an expectation of a police officer is eminently reasonable (at the very least as applied to conduct that could become public and reflect on the police department). See Attorney Gen. v. McHatton, 428 Mass. 790, 793–794 (1999). Barrett has pointed to no factors that would mitigate his egregious misconduct, nor are any apparent to us. Thus, all three factors support the conclusion that Barrett acted in wilful disregard of his employer's interest.
Moreover, there was strong circumstantial evidence that Barrett knew his action was contrary to his employer's interest. Barrett testified that during the course of his lengthy military career he served as his unit's “EEO [Equal Employment Opportunity] officer” and received training in racial sensitivity. Given this training and his years of experience, as well as the obviousness of the potential harm to his employer's interest as a result of his action, it was reasonable for the board to infer that he was aware that the action was contrary to that interest. See Jorgensen v. Director of the Div. of Employment Sec., 394 Mass. 800, 805 (1985).
Proof of an employee's knowledge “may rest on ‘findings of specific acts or omissions of the worker which adversely affect the employer's interest.’ “ Gupta, supra at 584 n. 5, quoting from Garfield, supra at 99. As detailed above, the subsidiary findings made by the review examiner about Barrett's acts sufficed to permit the board to infer that his action was taken in wilful disregard of his employer's interest.
The absence of a specific subsidiary finding to that effect is not fatal to the board's decision where, as here, “there is an adequate basis to support the conclusion that [the employee's] misconduct was ‘obviously intentional.’ “ Grise v. Director of the Div. of Employment Sec., 393 Mass. 271, 275 (1984), quoting from Sharon v. Director of the Div. of Employment Sec., 390 Mass. 376, 378 (1983).
Barrett argues that the review examiner's subsidiary findings establish that his subjective purpose in sending the e-mail was not to harm the police department, thus precluding the board from finding that he engaged in deliberate misconduct in wilful disregard of his employer's interest. This argument rests on the faulty premise that the employer had to prove that he specifically intended to harm its interest. The employer was required only to show that Barrett acted intentionally while knowing such action to be contrary to his employer's interest. Whether Barrett specifically intended to harm his employer's interest is ultimately beside the point. See Jorgensen, 394 Mass. at 804–805;Still, 423 Mass. at 812–813.
Conclusion. The judgment of the Boston Municipal Court is reversed, and a new judgment is to enter affirming the decision of the board.
So ordered.