Opinion
19-P-1260
08-17-2020
PETER GAINES v. DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
NOTICE: 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 employee appeals from a District Court judgment affirming the final decision of the Department of Unemployment Assistance (department) to deny him unemployment benefits under G. L. c. 151A, § 25 (e) (2). We affirm.
Background. After the employee was denied unemployment benefits, he appealed and received an evidentiary hearing. Following an adverse determination by a review examiner, the department's board of review (board) accepted the employee's application for review and remanded for a second evidentiary hearing. Thereafter, the review examiner again denied benefits, and issued the following consolidated findings of fact, which the board adopted in their entirety as supported by substantial evidence.
The review examiner found much of the employee's testimony not reasonable or credible. He also found that the employee's behavior toward the department's staff (described as "loud, aggressive, obstinate . . . [with] a singular focus about 'his legal rights'") bolstered the employer's asserted reason for the employee's discharge.
The employee was employed as a home health aide/personal care assistant by Comprehensive Home Care (employer), a home health agency, from September 25, 2017 until February 26, 2018.
On Wednesday, February 21, 2018, the employee learned that he was being taken off an assignment with a particular client, and he demanded to meet with his employer's director of services, sending five text messages that afternoon. The following day, Thursday, February 22, 2018, the director of services met with the employee and informed him that he was indeed being reassigned due to a complaint by a hospice care nurse regarding her interaction with the employee. The employee protested and demanded to meet with the employer's chief operating officer. The chief operating officer met with the employee the following day, Friday, February 23, 2018, at approximately 2 P.M. The employee again protested being removed from the assignment, and the chief operating officer expressed that the reassignment was something "they had to do" under the circumstances. The employee became upset and walked out of the meeting and the office.
At 12:27 P.M., the employee texted, "Please call me immediately. You have been lied to." At 12:29 P.M., the employee texted, "There is information you need to have. You're not aware of the truth." At 1:14 P.M., the employee texted, "I need to speak to you . . . please call me." At 2:58 P.M., the employee texted, "I have been slandered and I can't consciously allow this to happen to me." At 2:59 P.M., the employee texted, "I'll wait to hear from you . . . if I don't I'll need to pursue this with [the owner]."
The complaint was that the employee got into a heated argument with a hospice nurse at the client's house, was being "irrational," and it was difficult getting him to calm down. Earlier, there had been a similar complaint regarding the employee's interactions with a different nurse from the same hospice at a different client's house.
At 2:01 P.M., the employee texted the director of services: "I appreciate you meeting with me today. I'm sorry that you don't care about me or what is right. I'll handle it with [the owner] and [the chief operating officer]."
The employer determined that it was best to reassign the employee to preserve the cooperative relationship with the other provider. Reassignment of home health aides was a routine matter which occurred "almost on a daily basis," and could be prompted by requests from clients, third-party providers, and also aides.
During the meeting, the employee was so focused on how he was wronged by the hospice nurse's complaint against him that the employer was unable to discuss the possible reassignments to other clients, which were available.
Following the meeting, the employee e-mailed the employer several times in quick succession that afternoon. At 2:36 P.M., the employee sent an e-mail to his employer: "In regards to my upcoming shifts, I'm not able to attend due to a personal matter. I do still look forward to my present and future employment with [the employer]. Again . . . [i]f [the owner] has any questions, she can feel free to reach me either by phone or email. Have a wonderful weekend." The employee's next upcoming shift was within two hours of the e-mail, from 4 P.M. to 8 P.M. The employee did not appear for that Friday night shift. Nor did he appear for his scheduled shifts on Sunday, February 25, 2018, from 9 A.M. to 1 P.M. and 2 P.M. to 9:15 P.M.
The employee complained that "[w]hat they did to me is illegal" and that he was "not tolerating someone committing [d]efamation of [c]haracter" against him." He further stated that "[s]ince you clowns obviously don't care about me or what is right . . . I will pursue this legally."
An hour later, at 3:30 P.M., the employee texted: "Buckle up" and "I did everything in my power to stop what's about to legally happen. You did this . . . not me."
The employee called the scheduler that afternoon and stated: "I am being insubordinate and I am not going to work this afternoon." He called an hour later to notify the scheduler that he was also "calling out for the weekend work" and that he "didn't feel that he should be going to those two shifts."
Instead, over the weekend of Saturday, February 24, 2018, and Sunday, February 25, 2018, the employee continued to e-mail, text, and call the employer at the after-hours line, which was generally for client use. The communications complained of "slander and collusion" against him, threatened legal action, and imposed deadlines for avoiding "the costly and time-consuming fiasco" ahead; some were laced with vulgarity. The nature of the contacts made the employer's staff uncomfortable and afraid to deal with the employee; the office administrator feared that the employee would do something rash, causing her to suggest that the employer call the police.
On Monday, February 26, 2018, the employer discharged the employee via termination letter delivered to the employee's home. The letter stated: "We have made the decision to let you go because while you are a good caregiver, your behavior is erratic and aggressive. You are unaware of boundaries and lack self-control around anger. We work with vulnerable people in unsupervised environments and cannot offer you as a stable caregiver."
Based on its review of the entire record, the board affirmed the review examiner's decision, concluding that the employer met its burden of establishing that the employee was discharged for unprofessional and insubordinate conduct that amounted to deliberate misconduct in willful disregard of his employer's interest. The employee further appealed, and a judge in the District Court affirmed the department's disqualification decision. This appeal followed.
Discussion. We review the department's decision to deny unemployment benefits to "determine whether it was unsupported by substantial evidence, arbitrary, capricious, or otherwise based on an error of law." Lincoln Pharmacy of Milford, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass. App. Ct. 428, 431 (2009). Our review is "highly deferential to the agency," requiring us to accord "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it" (citation omitted). Hotchkiss v. State Racing Comm'n, 45 Mass. App. Ct. 684, 695-696 (1998). We may not displace the department's choice between two conflicting views. See Hanover Ins. Co. v. Commissioner of Ins., 443 Mass. 47, 50 (2004).
Here, we conclude that the board's decision was supported by substantial evidence and free from error of law. The decision was supported by evidence that the employee reacted to being taken off of a client assignment, a rather routine occurrence, by obsessive, hostile, aggressive, vulgar, and threatening communications with the employer. Additionally, he failed to report for three weekend shifts, giving less than two hours' notice before the first shift was to begin on a Friday night. This substantial evidence supported the determination that the employee engaged in "deliberate misconduct in wilful disregard" of his employer's interest. See Grise v. Director of the Div. of Employment Sec., 393 Mass. 271, 275 (1984) (determination of deliberate misconduct in willful disregard of employer's interest upheld where employee left work at start of shift without notification or authorization and took steps to avoid being contacted by supervisor until after shift ended); Sharon v. Director of the Div. of Employment Sec., 390 Mass. 376, 378 (1983) (employee's refusal to make public apology after calling manager "a liar and a crude, derogatory name" in front of other personnel constituted deliberate misconduct in willful disregard of employer's interest).
On appeal, the employee argues that the decision should be reversed since his employer terminated him because, and while, he was seeking legal counsel. While this was one of the employee's asserted reasons for his behavior, the review examiner rejected it, calling the employee's answer to the examiner's request for more specific facts "feeble." The board concluded that the review examiner could reasonably have rejected the justification because the employee could not explain how he could get competent legal advice from late Friday afternoon through the weekend. Additionally, the review examiner noted the employee's own somewhat conflicting statements to the employer that he was not going to do his scheduled shifts because he was being "insubordinate" and he did not "feel" he should do the shifts. We will not disturb the agency's credibility determinations. See Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674 (2010) ("[i]t is for the agency, not the reviewing court, to weigh credibility of witnesses and resolve factual disputes involving contradictory testimony" [citation omitted]).
Finally, the employee contends that the decision should be reversed because his actions were motivated by a legitimate concern for his mother's safety. According to the employee, he had been assigned to a client with a "deadly strain of Influenza" and was concerned about "bringing the contagion into [his] home" where he lived with his mother. As a result, he made some inquiries of "the primary overseer of the client's care to verify that [he] had proper and vital information." This interaction resulted in the hospice nurse's complaint, which ultimately caused the employer to remove the employee from the client. Yet, the employee was not terminated because of that interaction. Rather, he was terminated because of the manner in which he reacted toward his employer after being removed from the client assignment.
In this review of a denial of unemployment benefits, the issue is not the validity of the grounds for discharge, but rather the qualification of the employee for assistance in the entire circumstances of the discharge. See Gupta v. Deputy Director of the Div. of Employment & Training, 62 Mass App. Ct. 579, 584-585 (2004). Generally, unemployment benefits are afforded to those persons "who are out of work and unable to secure work through no fault of their own" (citation omitted). Cape Cod Collaborative v. Director of the Dep't of Unemployment Assistance, 91 Mass. App. Ct. 436, 437 (2017). However, an employee who leaves work by discharge due to deliberate misconduct in willful disregard of his employer's interests is subject to disqualification. See G. L. c. 151A, § 25 (e) (2). The intent of this statutory provision is generally "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 Dep't of Employment & Training, 423 Mass. 805, 810 (1996), quoting Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97 (1979).
Here, the board was warranted in concluding that the employer had a reasonable expectation that its employees would not behave in a "hostile, threatening, or aggressive manner" in the workplace; the employee's misconduct in sending "unprofessional, aggressive, and insulting" communications was "obviously intentional" and contrary to the conduct that the employer had the right to expect; the employee's acknowledgment of his insubordination to the scheduler established his awareness that his course of conduct was contrary to the employer's interest; and that the employee presented no credible evidence of mitigating circumstances that justified his conduct.
After review, we discern no cause to disturb the decision to deny unemployment benefits to the employee.
In his reply brief, the employee additionally argues that the decision of the District Court judge should be reversed because he did not have an impartial judge. He contends that the judge was biased against him because the judge had apparently ruled against the employee in an earlier matter involving "false accusations" brought by his employer with the collusion of a police officer. The record does not disclose that the employee moved to recuse the judge. See Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 548-549 (1998) (one seeking disqualification of judge must move to recuse at earliest time that basis for recusal is apparent). Nor does it disclose that the issue of bias was raised below. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issue not raised or argued below may not be argued for first time on appeal). We do not address it. In any event, we perform an independent judicial review of the same record that was before the District Court judge and give no deference to s decision. See G. L. c. 151A, § 42. Cf. Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n, 377 Mass. 897, 903 (1979); Heineken U.S.A., Inc. v. Alcoholic Beverages Control Comm'n, 62 Mass. App. Ct. 567, 568 n.3 (2004).
Judgment affirmed.
By the Court (Sacks, Singh & McDonough, JJ.,),
Justice McDonough participated in the deliberation on this case while an Associate Justice of this court, prior to his reappointment as an Associate Justice of the Superior Court.
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 17, 2020.