Opinion
No. 15–P–907.
07-01-2016
Kevin M. NOLAN, v. DIRECTOR and COMMISSIONER OF the DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from a judgment of the District Court, which reversed the decision of the defendant Director of the Department of Unemployment Assistance (department), the defendant city of Malden contends that the judge erred in her application of the standard of review to the administrative record, under G.L. c. 30A, § 14(7). We agree, and reverse the judgment.
“We may set aside the decision of an administrative agency if it is not supported by substantial evidence. See G.L. c. 30A, § 14(7)(e ) ; Massachusetts Mun. Wholesale Elec. Co. v. Energy Facilities Siting Council, 411 Mass. 183, 199 (1991). ‘Substantial evidence,’ as defined by statute, is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ G.L. c. 30A, § 1(6). In conducting this review, we must ‘give due weight to the experience, technical competence and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it,’ G.L. c. 30A, § 14(7), and should defer to the agency on questions of fact and reasonable inferences drawn from the record. Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992).”
Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. 385, 390 (1999). We accord deference to the expertise of the agency and will set aside the board's decision only if it is “unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Coverall N. America, Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852, 857 (2006). “A court may not displace an administrative board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Rioni v. Director of the Div. of Employment Security, 392 Mass. 436, 438 (1984), quoting from Labor Relations Commn. v. University Hosp., Inc., 359 Mass. 516, 521 (1971).
Under G.L. c. 151A, § 25(e )(2), as appearing in St.1992, c. 26, § 19, the department may deny benefits if a claimant's employment was terminated “by discharge shown to the satisfaction of the commissioner by substantial and credible evidence to be attributable to deliberate misconduct in wilful disregard of the employing unit's interest.” The phrase “deliberate misconduct in wilful disregard” of an employer's interest “denotes ‘intentional conduct or inaction which the employee knew was contrary to the employer's interest.’ “ Still v. Commissioner of the Dept. of Employment & Training, 423 Mass. 805, 810 (1996), quoting from Goodridge v. Director of the Div. of Employment Sec., 375 Mass. 434, 436 (1978). “The provision requires a two-part analysis: both ‘deliberate misconduct’ and ‘wilful disregard’ of the employer's interest must be shown in order to disqualify the employee, and the employee's state of mind at the time of the misconduct is an issue for both parts.” Still, supra.
In the present case, the review examiner found that the plaintiff took gasoline for personal use without authorization, and that the plaintiff did not request authorization to take the gasoline because he knew that the director of public works would most likely have denied such a request and required the plaintiff to obtain reimbursement (for monies he advanced on behalf of the water and sewer department) by filing an invoice and receipt. The review examiner's finding in that regard was supported by substantial evidence. We likewise agree with the review examiner that the plaintiff's act in taking the gasoline constituted deliberate misconduct in wilful disregard of the employer's interest, within the meaning of G.L. c. 151A, § 25(e )(2).
In her marginal endorsement, the judge stated that she was reversing the department's decision “for the reasons stated on the record,” though the transcript of the hearing does not contain a statement of reasons. To the extent the judge intended to adopt by reference the argument pressed in the plaintiff's memorandum in support of his complaint for review in the District Court, the memorandum furnishes inadequate basis to overturn the department's decision.
The plaintiff's memorandum attempts to characterize the act of taking gasoline as a “good faith error in judgment,” citing the review examiner's finding that “[h]e intended for this gas to reimburse himself in kind, for the gas he had purchased [for the water and sewer department] on the 7th. He did not consider this to be theft or dishonest as he believed he was owed reimbursement for the gas.” However, as the review examiner also observed, that “does not change the fact that he knowingly engaged in a practice he knew his Director would have disallowed.”
The judgment is reversed. A new judgment shall enter, affirming the decision of the department.
So ordered.