Opinion
14-P-423
06-09-2015
STEPHAN J. FERREIRA v. DEPARTMENT 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
From January 5, 2009, to July 2, 2012, Stephan J. Ferreira worked for Hampton Recreation, Inc., a retail motorcycle dealership (employer). Following his separation from employment, a representative of the Department of Unemployment Assistance (DUA) approved his application for unemployment benefits. A DUA review examiner effectively reversed that determination with the exception of one minor modification not relevant to this appeal. The DUA board of review (board) and a judge of the District Court affirmed that decision. See G. L. c. 151A, § 42, and G. L. c. 30A, § 14(7). After conducting the deferential and limited review called for by our case law, we affirm. See Coverall N. Am., Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852, 857 (2006); Norfolk County Retirement Sys. v. Director of the Dept. of Labor & Workforce Dev., 66 Mass. App. Ct. 759, 763-764 (2006).
Although no judgment was entered in the case, we shall treat, as the parties have done, the order appealed from as a final judgment. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995). Ferreira has not appealed from the earlier order dismissing the complaint against the employer.
The main question presented is whether the board erred in concluding that Ferreira had not met his burden of showing he came within one of the statutory exceptions to disqualification pursued below. See G. L. c. 151A, § 25(e)(1).
1. Urgent, compelling and necessitous reasons. Ferreira maintains that his resignation on June 28, 2012, was compelled as a result of his work-related, transient ischemic attack (TIA). An employee who leaves work due to a reasonable belief that his work environment was causing a health problem is not disqualified from benefits. See, e.g., Carney Hosp. v. Director of the Div. of Employment Security, 382 Mass. 691 (1981).
Here, the board was warranted in concluding that Ferreira had failed to present substantial evidence that he left work involuntarily for urgent, compelling, or necessitous reasons related to his health. First, as the board noted, his primary care physician did not instruct him to leave his job for health reasons. As the board further noted, Ferreira gave a full two weeks' notice of his intention to leave his employment. These facts were relevant to show the absence of urgency Ferreira faced at the time he resigned. See Norfolk County Retirement Sys. v. Director of the Dept. of Labor & Workforce Dev., supra at 768 (the key determination for eligibility purposes is whether the claimant acted reasonably in leaving his employment based on pressing circumstances). While other inferences were permissible, we cannot supplant the board's view of the facts with our own view. See Leone v. Director of the Div. of Employment Security, 397 Mass. 728, 731 (1986). Moreover, although certainly not strong evidence supporting disqualification, these subsidiary findings did not stand alone.
The advice rather was to see a psychiatrist and to start making some decisions. Ferreira's contention that his employer denied his requests "to take time off to get the proper tests and care for his ailments" was unsupported and in fact contradicted by the only evidence of record. We have disregarded all factual statements in his brief that were unsupported by the record. See Marnerakis v. Phillips, Silver, Talman, Aframe & Sinrich, P.C., 445 Mass. 1027, 1028 n.5 (2006).
In his letter of resignation, Ferreira wished Robert Cayo, his supervisor, "good luck and continued success." Ferreira did not indicate he was leaving for any specific reason, such as concerns about his health.
Ferreira returned to work one and one-half days after suffering a TIA during the second week of May, 2012. Ferreira admitted that at no time did he tell his supervisor that he believed that his TIA was caused by his work-related stress. As the board found on conflicting evidence, Ferreira did not follow the company protocol of appealing to the owner for intervention. Moreover, Ferreira did not request a leave of absence to address his health concerns. This failure to make reasonable attempts to preserve his employment supported the determination that the departure was voluntary. See Norfolk County Retirement Sys. v. Director of the Dept. of Labor & Workforce Dev., 66 Mass. App. Ct. at 766. Substantial evidence supported the board's ultimate finding that Ferreira's departure was not for urgent, compelling, and necessitous reasons.
On several occasions, Ferreira informed Cayo that his doctors had no idea what had caused the TIA. Prior to his separation from work, Ferreira did not update Cayo about the results from the further diagnostic testing or the causal connection between the TIA and his work-related stress.
We discern no misapplication of the relevant legal standard. "[O]rdinarily the agency must make findings as to the reasonableness of a claimant's belief that she left her employment for a compelling reason." Ibid., quoting from Leone v. Director of the Div. of Employment Security, supra at 732 n.4. Here, there was a lack of substantial evidence that health concerns drove Ferreira from his job.
Ferreira testified about a number of factors that lead up to his decision to resign, including concerns about his health, and the advice from his doctor to start making decisions. When questioned about why he submitted his resignation when he did, Ferreira testified that "what triggered [his letter of resignation] was the refusal of the time off that [he] was led to believe [he] could have, couple o' days off [in July]." Testing the strength of the other factors, the review examiner on three occasions asked Ferreira whether he would still have resigned if management had approved his time off requests in July. Each time, Ferreira responded that even if he had been given that time off, he might have "possibly" resigned. At no point did Ferreira testify that his health concerns required his departure. The board could have determined properly that Ferreira's testimony was too speculative or attenuated to support the desired finding that this concern was a compelling reason for his resignation. See Curtis v. Commissioner of the Div. of Unemployment Assistance, 68 Mass. App. Ct. 516, 520-521 (2007). In these circumstances, the board was not required to make a separate finding as to the reasonableness of Ferreira's beliefs about his health. Compare Fergione v. Director of the Div. of Employment Security, 396 Mass. 281, 284-286 (1985).
Where, as here, the board denied Ferreira's application for review on the record, the note from licensed mental health counselor Paulina Franco has no evidentiary significance. See G. L. c. 151A, § 41(a)-(b); Fergione v. Director of the Div. of Employment Security, 396 Mass. 281, 285 n.2 (1985).
2. Good cause attributable to the employing unit. The board was warranted in concluding that Ferreira did not leave work for good cause attributable to the employer. When the employer eliminated Ferreira's position and cut his salary in January, 2012, Ferreira submitted a notice of resignation. Before the resignation took effect, however, as Ferreira put it, they "worked it out," and Ferreira agreed to continue his employment with new terms effective March 1, 2012. The board properly could have determined that these changes implemented by agreement did not constitute good cause attributable to the employer for leaving work at the end of June, 2012.
The finding that Ferreira agreed to a new pay plan was amply supported by Ferreira's claimant statement, Cayo's testimony regarding the negotiations about the new terms, and the written agreement executed by Ferreira and Cayo on February 24, 2012.
Most of Ferreira's remaining good cause arguments were not tethered to any of the board's extensive subsidiary findings supporting its conclusion. Ferreira's argument that the demotion to service manager rendered his job "unsuitable," was not raised below, and need not be considered. See G. L. c. 151A, § 25(c); Manias v. Director of the Div. of Employment Security, 388 Mass. 201, 203 (1983); Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493-494 (1983). In any event, substantial evidence supported the board's dispositive finding that Ferreira did not take reasonable steps to preserve the employment relationship. See Kowalski v. Director of the Div. of Employment Security, 391 Mass. 1005, 1006 (1984) (claimant has the burden of showing that he made a reasonable attempt to correct the conditions of employment justifying his resignation or that such attempt would have been futile). Where Ferreira did not testify that he was forced to leave his employment as a result of dramatic changes in his wages and job duties, the board's failure to make findings regarding suitability was neither surprising nor improper.
The board discredited Ferreira's futility argument.
3. Unfair procedure. A pro se claimant seeking unemployment benefits "is entitled to reasonable assistance from the review examiner in presenting relevant evidence." McDonald v. Director of the Div. of Employment Security, 396 Mass. 468, 470 n.4 (1986). No dereliction of this duty by the review examiner is apparent on the record. As the District Court judge noted, there was no evidence that Ferreira was denied the right to present any evidence. The record demonstrated that the review examiner assisted Ferreira with his documentary and testimonial medical evidence. For example, after Ferreira disclosed the TIA, the review examiner asked follow-up questions about it, including what Ferreira's doctor had meant by his advice to "make some decisions" about his stressful job, the length of his absence from work, and whether he gave notice to his employer about the TIA and its work-related cause. Ferreira's claim that the review examiner conducted an unsatisfactory hearing was unsubstantiated. See 801 Code Mass. Regs. § 1.02(10)(f) (1998).
Contrary to Ferreira's assertion, the review examiner asked him if he knew what his doctor meant by "make some decisions." Ferreira explained that his doctor suggested that he discuss his stressful job situation with a psychiatrist. According to Ferreira, he loved his job, did not want to leave, and was very happy with the position and the people with whom he worked. However, he felt harassed and singled out for unfair treatment by upper management.
The decision of the District Court affirming the board's denial of unemployment benefits is affirmed.
So ordered.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 9, 2015.