Opinion
14-P-948
03-30-2015
LAURA HALSEY v. DIRECTOR OF THE DIVISION 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
The plaintiff, Laura Halsey, appeals from a judgment of the Dorchester Division of the Boston Municipal Court Department affirming the decision of the board of review (board) of the Department of Unemployment Assistance (DUA) denying her application for unemployment insurance benefits. We affirm.
1. Background. The review examiner found the following facts, supplemented with undisputed facts from the record. Halsey was hired as a paralegal by Crowe & Mulvey, LLP (C&M) on November 28, 2011. Halsey received a C&M employee handbook, which provides, in pertinent part, that an employee taking time off due to illness is to leave a voicemail message in the firm's general mailbox and/or that of the employee's immediate boss, as well as leaving a message with C&M's controller, Kathleen Crowley. Attorney Michael Harris was Halsey's immediate supervisor. At the time Halsey was employed at C&M, all employees were allotted fifteen days of paid time off per year, which was to include vacation, sick, and personal time.
As of April 7, 2012, Halsey had utilized all of her allotted paid time off for that year. Thereafter, she took an additional three days off, unpaid. On May 23, 2012, Halsey took an additional four hours off and then, at 8:00 A.M. the following day, she sent an electronic mail message (e-mail) to C&M stating that her brother had been in an accident and that she was leaving for Texas to be with him. Crowley responded to Halsey, extending her sympathies and asking her to remain in touch. Harris's secretary did the same. The following Monday, Halsey e-mailed Crowley, Harris, and Harris's secretary, stating that she would return to work on Thursday, which she did. C&M did not discipline Halsey for e-mailing rather than telephoning about her absence. In June, 2012, Halsey took an additional three days off from work.
Harris spoke to Halsey several times after she had exhausted her paid time off and informed her that her continued absenteeism was problematic for C&M. Harris also reminded Halsey that she needed to telephone, rather than e-mail, about absences.
On July 3, 2012, Halsey sent an e-mail to Harris and Crowley that read, in its entirety, as follows: "mike/kathy, I'm not going to be in today.. I'm taking care of [my husband]. He was beat up by 5 people yesterday. :( laura." The e-mail was accidently directed to C&M's "spam" folder, and was accordingly left unread by both Harris and Crowley. Halsey received no response from her e-mail, which she acknowledged was unusual, but did not immediately follow up with anyone at C&M. On July 5, 2012, Halsey sent another e-mail stating, in sum total, "Kathy, I decided to take time off and will be out for a month[.] Laura." This e-mail likewise went to C&M's spam folder. Again, Halsey did not follow up with anyone at C&M.
"Spam" is a term that describes unsolicited or otherwise suspicious e-mail messages. Halsey's message was accidently misdirected to C&M's spam folder because she addressed the e-mail using only the "Cc" address field; she inadvertently left the "To" field of the e-mail blank.
On July 6, 2012, unaware of the e-mails sent and without any voicemail messages from Halsey, Harris telephoned Crowley. She suggested checking C&M's spam folder; Harris found the e-mails and forwarded them to Crowley. The two discussed the situation and, on July 12, 2012, decided to terminate Halsey. Halsey was later notified by e-mail and certified letter of her termination.
Following a hearing, a review examiner of the DUA found that Halsey was disqualified from receiving unemployment benefits because she was discharged for "deliberate misconduct in wilful disregard of the employ[er's] interest." G. L. c. 151A, § 25(e)(2). The board denied Halsey's application for further review. On Halsey's complaint for judicial review of the board's decision, a judge of the Dorchester Division of the Boston Municipal Court Department affirmed. This appeal followed.
2. Discussion. "We review the board's decision 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. 42 8, 431 (2009) (evidence is substantial when a "reasonable mind might accept [it] as adequate to support a conclusion"), quoting from G. L. c. 30A, § 1(6). Although we review legal questions de novo, we "defer to the agency's interpretation and application of the statute within which it operates." Tri-County Youth Programs, Inc. v. Acting Deputy Director of the Div. of Employment & Training, 54 Mass. App. Ct. 405, 408 (2002).
As noted supra, G. L. c. 151A, § 25(e)(2), disqualifies employees who are discharged due to "deliberate misconduct in wilful disregard" of the employer's interest. In other words, such employees intentionally disregard "standards of behavior which [the] employer has a right to expect." Garfield v. Director of the Div. of Employment Security, 377 Mass. 94, 97 (1979). See Gupta v. Deputy Director of the Div. of Employment & Training, 62 Mass. App. Ct. 579, 585 (2005). It was not unreasonable for C&M to expect Halsey to show up for work during her assigned hours.
On appeal, Halsey contends that the review examiner did not make any findings as to her actual state of mind and therefore reversal is warranted. We are unpersuaded by this argument as a "person's knowledge, intent, or any other state of mind is rarely susceptible of proof by direct evidence, but rather is a matter of proof by inference from all the facts and circumstances of the case." Id. at 584 n.5. Substantial evidence supports the review examiner's conclusion that Halsey knew of her employer's expectations regarding absences, which she then intentionally disregarded, both in the number of her total absences and the manner in which she communicated with C&M about them, as well as her unilateral pronouncement of a one-month leave of absence. There likewise was no error in the review examiner's conclusion that Halsey's conduct was in wilful disregard of the employer's interest, as Harris had spoken to Halsey about her absenteeism and the negative impact it was having on the operations of C&M.
Judgment affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 30, 2015.