Opinion
No. 12–P–1660.
2013-07-22
David W. WHITE v. DIRECTOR OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE.
By the Court (GRASSO, HANLON & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
David W. White appeals from a judgment of the District Court that dismissed his complaint and affirmed the denial of his claim for unemployment benefits by the review board of the Division of Unemployment Assistance (DUA).
White argues that the review board incorrectly based the denial of benefits on G.L. c. 151A, § 25( e )(1), because he did not leave his employment voluntarily, and that had the review board applied the appropriate statutory provision, i.e., § 25( e )(2), the proof was insufficient to deny him benefits. We affirm.
The agency is now known as the Department of Unemployment Assistance.
1. Background. The record contains substantial evidence that in 2009 White began working as a relay truck driver for Boston Herald, Inc. (employer). As a condition of his employment, White was required to maintain a valid class B commercial driver's license (CDL), a fact of which he was admittedly aware. At the time of White's hiring, his employer checked and found White to have a valid CDL license. In a subsequent mandated yearly review, the employer learned that White's CDL was no longer valid and terminated his employment. White expressed surprise that his license had been suspended and, upon inquiry, learned that the suspension was for “too many infractions.” After the DUA denied his application for unemployment benefits, White requested a hearing. A DUA review examiner found that White was ineligible for unemployment benefits because by failing to maintain his CDL, White left work voluntarily, without “good cause attributable to the employer,” within the meaning of G.L. c. 151A, § 25( e )(1). After the review board denied the application for review, White appealed pursuant to G.L. c. 151A, § 42. A judge of the District Court affirmed and dismissed White's complaint.
2. Discussion. White contends the review examiner and the judge erroneously applied the leaving employment “voluntarily” provision of § 25( e )(1), as appearing in St.1992, c. 26, § 19 (as to which the employee has the burden of showing the departure was with good cause attributable to the employer), rather than the discharged for good cause provision of § 25( e )(2), as appearing in St.1992, c. 26, § 19 (as to which an employer has the burden of showing “a knowing violation of a reasonable and uniformly enforced rule or policy of the employer”). For substantially the reasons relied upon by the review examiner and the judge, we agree that White left his employment voluntarily within the meaning of § 25( e )(1) and is disqualified from receiving unemployment benefits.
The provisions of G.L. c. 151A, § 25( e ), are in the disjunctive, and White is ineligible if he falls within either § 25( e )(1)or § 25( e )(2). We discern no error in the determination that in these circumstances White left his employment voluntarily within the meaning of § 25( e )(1). See Hanover Ins. Co. v. Commissioner of Ins., 443 Mass. 47, 50 (2004). The word “voluntarily” is a “term of art that must be read in light of the statutory purpose of ‘provid[ing] compensation for those who “are thrown out of work through no fault of their own.” ’ “ Olmeda v. Director of the Div. of Employment Security, 394 Mass. 1002, 1003 (1985) (citations omitted). An employee who creates his own disqualification and causes his termination from employment does so voluntarily for purposes of the statute, notwithstanding the employee's subjective desire to remain employed. See Rivard v. Director of the Div. of Employment Security, 387 Mass. 528, 530 (1982). White's permitting his CDL to become invalid created his own disqualification and voluntarily made himself ineligible for further employment. See Harvard Student Agencies, Inc. v. Director of the Div. of Employment Security, 12 Mass.App.Ct. 871, 871–872 (1981).
Judgment affirmed.