Opinion
No. 14–P–1958.
09-20-2016
John LANE v. DIRECTOR OF the DIVISION OF UNEMPLOYMENT ASSISTANCE & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Lane, appeals from a judgment of the District Court affirming a decision of the Department of Unemployment Assistance (DUA) board of review (board) denying his application for unemployment benefits. Lane was a licensed practical nurse employed at the Courtyard Nursing Care Center (employer) from 2001 until his termination in November, 2011. He was discharged for fabricating an allegation of abuse or, alternatively, failing to timely report a suspected incident of abuse. We affirm.
1. Background. Upon his termination from employment, Lane applied for unemployment benefits. Finding that Lane was disqualified from receiving unemployment assistance under G.L. c. 151A, § 25(e)(2), as appearing in St.1992, c. 26, § 19, because his “discharge [was] due to deliberate misconduct in wilful disregard of the employing unit's interest,” the DUA denied his application for benefits. Lane appealed the denial to a DUA review examiner, who reversed. The employer then appealed to the board, which remanded the matter to a different DUA examiner for review.
After a de novo hearing before the second review examiner, the DUA's denial of Lane's application for unemployment benefits was reinstated. Lane appealed that determination to the board. The board allowed Lane's application for review, but took no further action. The DUA contends, and Lane does not contest, that after the expiration of twenty-one days without further action by the board, the examiner's decision became final pursuant to G.L. c. 151A, § 41(a). Lane sought judicial review in the District Court thereafter. See G.L. c. 151A, § 42 ; G.L. c. 30A, § 14. A judge of the District Court affirmed, and Lane's appeal followed.
2. Discussion. On appeal, Lane asserts that the examiner failed to give appropriate consideration to Lane's state of mind. He asserts that he was angry and tired when confronted by his employer and, as a result, unintentionally blurted out the accusation of sexual abuse. Given his state of mind, he contends his actions were neither deliberate nor wilful. We disagree.
To justify the denial of benefits, the employer was required to prove that Lane's misconduct was “deliberate” and that his disregard of his employer's interest was “wilful.” See Commissioner of the Dept. of Employment & Training v. Dugan, 428 Mass. 138, 142 (1998). “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 Employment & Training, 423 Mass. 805, 810 (1996). In other words, such employee's intentional disregard of “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).
Lane attested to becoming very angry when called by the director of nursing to respond to a fellow employee's complaints about him. In response to these complaints, he blurted out, “You ought to watch where she puts her hands.” Upon hearing this, the director of nursing indicated to Lane her intention to report the allegation of the other employee's sexual abuse of a patient to the Department of Public Health. She instructed Lane to go home and write a report describing what he had observed. Several hours later, Lane submitted a written statement in which he repeated his observation three weeks earlier of a colleague “appear[ing] to grasp the breast of [a resident].” Contrast Still, supra at 810–811. Any claim by Lane that his accusation was an unintentional outburst is belied by this subsequent written submission, in which Lane does not deny the accusation but rather describes his observation in greater detail.
We are not persuaded by Lane's contention that he attempted to retract his allegations but was “ordered to write the note.” The record reflects that Lane was not asked to write down what he had reported to the director of nursing, but rather, he was asked to write down what he had observed.
He wrote:
“I am recounting an incident that happened 3–4 weeks ago to the best of my knowledge. While seated at the nursing desk on F unit, I observed [PE], CNA, seated at the table in front of the TV next to her [patient] was seated in her w/c. I saw [PE] reach over and appear to grasp the breast of [the patient]. [The patient] didn't appear upset and the touching only lasted about a second. I saw no further touching between the two. Subsequently, [another CNA] stated to me that [PE] had ‘grabbed’ her breasts and those of a relation of hers....”
In determining whether the employee's state of mind demonstrated “wilful disregard” of the employer's interest, the key considerations are “the worker's knowledge of the employer's expectation, the reasonableness of that expectation and the presence of any mitigating factors.” Still, supra, quoting from Garfield, supra at 97. The record supports a finding that Lane knew of the employer's expectation and the reasonableness of these expectations. At the time of the incident, Lane had been employed for ten years. During that time, he received an employee's training manual that set forth the employer's expectations regarding mandated reporting requirements and the falsification of reports in general. There were also yearly training review sessions. Moreover, the director of nursing made clear the gravity of his accusations. She indicated her intention to notify the Department of Public Health and instructed Lane to prepare a written report of his observations, which he produced within a few hours.
While the examiner considered Lane's testimony that he was fatigued and acted out of anger, the examiner properly discounted these as not sufficiently mitigating. By Lane's own admission, Lane made the accusation to “cast negative things” about his colleague and to “degrade” her. Lane also perpetuated the allegation in his written submission, which was prepared after the confrontation with the nursing director. Even if Lane was still angered by his confrontation with the nursing director when he prepared the letter, by then he had left her office and had had time to reflect upon his words. Under these circumstances, we see no basis for concluding that the examiner's findings were clearly erroneous.
In addition, contrary to Lane's assertion, the examiner was not obligated to make a subsidiary finding that Lane attempted to injure his employer's interest by engaging in misconduct. The employer was required only to show that Lane acted intentionally while knowing such action to be contrary to his employer's interest. See Jorgensen v. Director of Div. of Employment Security, 394 Mass. 800, 804–805 (1985) ; Still, 423 Mass. at 812–813. The employer satisfied that criteria here. There is ample record support for a finding that Lane engaged in deliberate misconduct in wilful disregard of the employer's interest. See Still, supra at 807–808. Either Lane intentionally perpetuated a serious falsehood against another employee or he knowingly failed to disclose his observation of a colleague's sexual abuse of a patient. Under either scenario, he displayed an intentional disregard for his employer's interest. Accordingly, we discern no error in the denial of Lane's unemployment benefits. See Coverall N. America, Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852, 857 (2006) (“The agency's decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law”).
Judgment affirmed.