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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-364
ADAM MOUCHARITE
vs.
DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a judgment of the District Court
affirming a determination by the Department of Unemployment
Assistance (DUA) that he is ineligible for unemployment benefits
pursuant to G. L. c. 151A, § 25 (e) (1).2 On appeal, the
plaintiff claims that the DUA review examiner (examiner) erred
in determining that the plaintiff resigned without good cause
and by making unsupported findings. We affirm.
1 State Street Bank and Trust Company.
2Because the DUA board of review (board) denied the plaintiff's appeal, the DUA review examiner's decision is the final decision of the board. Background. We summarize the examiner's factual findings,
supplementing as necessary with materials from the
administrative record. The plaintiff was a vice president and
application developer officer at State Street Bank and Trust
Company (bank) from January 3, 2011, until he resigned on April
1, 2022. He had previously worked for the bank from July 2000
to December 2008. In 2021, the bank's managing director
(director)3 became the plaintiff's supervisor. Unbeknownst to
the plaintiff, the director tasked another employee (employee A)
with managing the plaintiff. This reporting change was not
reflected in the bank's system. Between June 2021 and March 15,
2022, neither the director nor employee A met with the plaintiff
to discuss his job performance.
On February 14, 2022, employee A informed the plaintiff
that he could expect to receive a $9,000 bonus. When the
plaintiff did not receive a bonus, he called employee A, who
responded that he would look into it and call the plaintiff
back. On March 12, when the plaintiff had not yet heard back
from employee A, he emailed the director about his bonus. The
director responded that he would contact the plaintiff on March
14, but he did not.
3 For everyone but the plaintiff, we use the same terminology used in the DUA decision.
2 On March 14 and 15, the plaintiff emailed the human
resources department to inquire about his bonus. The vice
president of employee relations (vice president) responded that
"she would look into it."
On March 15, the director explained to the plaintiff that
he would not receive a bonus because, according to employee A's
feedback, the plaintiff underperformed in 2021. The plaintiff
responded that he did not work with employee A and had never met
with him to discuss his job performance. The plaintiff followed
up by emailing the vice president, who again said she would look
into his concerns.
The following day, the plaintiff viewed his online 2021
year-end performance evaluation which stated that he
"underperformed." Again, he followed up with the vice
president; again, she responded that she would look into his
concerns. That evening, the plaintiff became very upset; he
experienced stress, anxiety, and heart palpitations and was
unable to sleep. He did not seek medical attention, nor did he
request a leave of absence from the bank.4 The next day, the
plaintiff submitted his resignation with two weeks' notice. He
4 The plaintiff took a leave of absence in 2019 after he had a heart attack.
3 finished work by April 1, and then filed for unemployment
benefits with the DUA.
An initial hearing, affirmance, and appeal to the DUA board
of review (board) were resolved unfavorably to the plaintiff and
he filed a complaint for judicial review pursuant to G. L.
c. 151A, § 42. The parties then filed a joint motion to remand
the case for a new hearing, which was granted. Following de
novo hearings, the examiner issued a second written decision
affirming the determination that the plaintiff was not entitled
to receive unemployment benefits under G. L. c. 151A,
§ 25 (e) (1) because the plaintiff was not discharged and the
evidence was insufficient to show that he "left work
involuntarily for urgent, compelling, and necessitous reasons."
The board denied the plaintiff's application for review, thereby
affirming the DUA decision. The plaintiff's appeal to the
Attleboro District Court resulted in a judgment for the DUA.
Discussion. a. Standard of review. Our review of the
board's decision is governed by G. L. c. 30A, § 14 (7). See
G. L. c. 151A, § 42. "In reviewing an agency's decision, the
court 'shall give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as
to the discretionary authority conferred upon it.'" Coverall N.
Am., Inc. v. Commissioner of Div. of Unemployment Assistance,
4 447 Mass. 852, 857 (2006), quoting G. L. c. 30A, § 14 (7). We
review the board's decision to determine "whether [it] contains
sufficient findings to demonstrate that the correct legal
principles were applied, and whether those findings were
supported by substantial evidence." Norfolk County Retirement
Sys. v. Director of the Dep't of Labor & Workforce Dev., 66
Mass. App. Ct. 759, 764 (2006) (abrogated on other grounds by
DiGuilio v. Director of Dep't of Unemployment Assistance, 94
Mass. App. Ct. 292, 294 (2018)). "Substantial evidence" is
"such evidence as a reasonable mind might accept as adequate to
support a conclusion." Lisbon v. Contributory Retirement Appeal
Bd., 41 Mass. App. Ct. 246, 257 (1996), quoting G. L. c. 30A,
§ 1 (6).
b. Substantial evidence. The unemployment statute in
general, and G. L. c. 151A, § 25, in particular, "discourages
those who are not truly compelled to leave work by temporarily
disqualifying those who leave their jobs voluntarily." Raytheon
Co. v. Director of Div. of Employment Sec., 364 Mass. 593, 596
(1974). As applicable here, § 25 (e) (1) places the burden on
the claimant employee to prove "either that he left his
employment for good cause attributable to the employing unit, or
that his reason for leaving was of an urgent, compelling, and
necessitous nature that would render his departure involuntary."
5 Crane v. Commissioner of Dep't of Employment & Training, 414
Mass. 658, 660-661 (1993). Compare State St. Bank & Trust Co.
v. Deputy Director of Div. of Employment & Training, 66 Mass.
App. Ct. 1, 11 (2006) (employees who resigned following lay-off
plan announcement did so for good cause attributable to employer
because they "reasonably feared" they would be laid off) with
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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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-364
ADAM MOUCHARITE
vs.
DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a judgment of the District Court
affirming a determination by the Department of Unemployment
Assistance (DUA) that he is ineligible for unemployment benefits
pursuant to G. L. c. 151A, § 25 (e) (1).2 On appeal, the
plaintiff claims that the DUA review examiner (examiner) erred
in determining that the plaintiff resigned without good cause
and by making unsupported findings. We affirm.
1 State Street Bank and Trust Company.
2Because the DUA board of review (board) denied the plaintiff's appeal, the DUA review examiner's decision is the final decision of the board. Background. We summarize the examiner's factual findings,
supplementing as necessary with materials from the
administrative record. The plaintiff was a vice president and
application developer officer at State Street Bank and Trust
Company (bank) from January 3, 2011, until he resigned on April
1, 2022. He had previously worked for the bank from July 2000
to December 2008. In 2021, the bank's managing director
(director)3 became the plaintiff's supervisor. Unbeknownst to
the plaintiff, the director tasked another employee (employee A)
with managing the plaintiff. This reporting change was not
reflected in the bank's system. Between June 2021 and March 15,
2022, neither the director nor employee A met with the plaintiff
to discuss his job performance.
On February 14, 2022, employee A informed the plaintiff
that he could expect to receive a $9,000 bonus. When the
plaintiff did not receive a bonus, he called employee A, who
responded that he would look into it and call the plaintiff
back. On March 12, when the plaintiff had not yet heard back
from employee A, he emailed the director about his bonus. The
director responded that he would contact the plaintiff on March
14, but he did not.
3 For everyone but the plaintiff, we use the same terminology used in the DUA decision.
2 On March 14 and 15, the plaintiff emailed the human
resources department to inquire about his bonus. The vice
president of employee relations (vice president) responded that
"she would look into it."
On March 15, the director explained to the plaintiff that
he would not receive a bonus because, according to employee A's
feedback, the plaintiff underperformed in 2021. The plaintiff
responded that he did not work with employee A and had never met
with him to discuss his job performance. The plaintiff followed
up by emailing the vice president, who again said she would look
into his concerns.
The following day, the plaintiff viewed his online 2021
year-end performance evaluation which stated that he
"underperformed." Again, he followed up with the vice
president; again, she responded that she would look into his
concerns. That evening, the plaintiff became very upset; he
experienced stress, anxiety, and heart palpitations and was
unable to sleep. He did not seek medical attention, nor did he
request a leave of absence from the bank.4 The next day, the
plaintiff submitted his resignation with two weeks' notice. He
4 The plaintiff took a leave of absence in 2019 after he had a heart attack.
3 finished work by April 1, and then filed for unemployment
benefits with the DUA.
An initial hearing, affirmance, and appeal to the DUA board
of review (board) were resolved unfavorably to the plaintiff and
he filed a complaint for judicial review pursuant to G. L.
c. 151A, § 42. The parties then filed a joint motion to remand
the case for a new hearing, which was granted. Following de
novo hearings, the examiner issued a second written decision
affirming the determination that the plaintiff was not entitled
to receive unemployment benefits under G. L. c. 151A,
§ 25 (e) (1) because the plaintiff was not discharged and the
evidence was insufficient to show that he "left work
involuntarily for urgent, compelling, and necessitous reasons."
The board denied the plaintiff's application for review, thereby
affirming the DUA decision. The plaintiff's appeal to the
Attleboro District Court resulted in a judgment for the DUA.
Discussion. a. Standard of review. Our review of the
board's decision is governed by G. L. c. 30A, § 14 (7). See
G. L. c. 151A, § 42. "In reviewing an agency's decision, the
court 'shall give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as
to the discretionary authority conferred upon it.'" Coverall N.
Am., Inc. v. Commissioner of Div. of Unemployment Assistance,
4 447 Mass. 852, 857 (2006), quoting G. L. c. 30A, § 14 (7). We
review the board's decision to determine "whether [it] contains
sufficient findings to demonstrate that the correct legal
principles were applied, and whether those findings were
supported by substantial evidence." Norfolk County Retirement
Sys. v. Director of the Dep't of Labor & Workforce Dev., 66
Mass. App. Ct. 759, 764 (2006) (abrogated on other grounds by
DiGuilio v. Director of Dep't of Unemployment Assistance, 94
Mass. App. Ct. 292, 294 (2018)). "Substantial evidence" is
"such evidence as a reasonable mind might accept as adequate to
support a conclusion." Lisbon v. Contributory Retirement Appeal
Bd., 41 Mass. App. Ct. 246, 257 (1996), quoting G. L. c. 30A,
§ 1 (6).
b. Substantial evidence. The unemployment statute in
general, and G. L. c. 151A, § 25, in particular, "discourages
those who are not truly compelled to leave work by temporarily
disqualifying those who leave their jobs voluntarily." Raytheon
Co. v. Director of Div. of Employment Sec., 364 Mass. 593, 596
(1974). As applicable here, § 25 (e) (1) places the burden on
the claimant employee to prove "either that he left his
employment for good cause attributable to the employing unit, or
that his reason for leaving was of an urgent, compelling, and
necessitous nature that would render his departure involuntary."
5 Crane v. Commissioner of Dep't of Employment & Training, 414
Mass. 658, 660-661 (1993). Compare State St. Bank & Trust Co.
v. Deputy Director of Div. of Employment & Training, 66 Mass.
App. Ct. 1, 11 (2006) (employees who resigned following lay-off
plan announcement did so for good cause attributable to employer
because they "reasonably feared" they would be laid off) with
Connolly v. Director of Div. of Unemployment Assistance, 460
Mass. 24, 29 (2011) (no good cause attributable to employer
where employee who applied to terminate her employment "was not
compelled to apply," and "did not believe [her] job was in
jeopardy, and left in part for personal reasons").
An employee "has the burden of proving a reasonable attempt
to correct those conditions of employment which he now claims
justified his leaving his employment, unless he can show that
such an attempt would have been futile." Kowalski v. Director
of Div. of Employment Sec., 391 Mass. 1005, 1006 (1984). See
Guarino v. Director of Div. of Employment Sec., 393 Mass. 89,
94-95 (1984) (findings insufficient, in part, to support
conclusion plaintiff left work voluntarily and without good
cause attributable to employer where remedies available to
plaintiff and whether she pursued them were not detailed). In
determining whether the employee has met this burden, the agency
reviews whether the employee took "reasonable means to preserve
6 [their] employment." Norfolk County Retirement Sys., 66 Mass.
App. Ct. at 766, citing Raytheon Co., 364 Mass. at 597-598.
On appeal, the plaintiff asserts that the examiner
erroneously evaluated the circumstances that led to his
resignation. Specifically, he maintains that the mental and
physical distress he endured after viewing his 2021 performance
evaluation, combined with his fear of having a second heart
attack, compelled him to resign on March 17, 2022. He further
asserts that he had good cause to resign in light of his prior
negative experiences with the bank's human resources department.
In sum, the plaintiff maintains that he acted reasonably in
resigning.5 We are not persuaded.
On the night of March 16, 2022, the plaintiff suffered from
anxiety, high blood pressure, and heart palpitations. In some
situations, an employee's health may mandate resignation. See
Cahalen v. Commissioner of Dep't of Employment & Training, 41
5 On appeal, the DUA maintains that the plaintiff waived his argument that he left work for urgent, compelling, or necessitous reasons, either because of his health crisis or because of discrimination or harassment. An argument is waived when not raised below. See Lincoln Pharmacy of Milford, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass. App. Ct. 428, 436 (2009). These waiver claims are belied by the record, which includes multiple references to both the plaintiff's fragile health and to his claims of discrimination and harassment. Indeed, in its first decision, the DUA addressed the discrimination or harassment claim. Accordingly, the plaintiff did not waive this argument.
7 Mass. App. Ct. 26, 27-28 (1996), citing Director of Div. of
Employment Sec. v. Fitzgerald, 382 Mass. 159, 161 (1980)
(employee reasonably left job as welder due to pregnancy). In
assessing whether a case fits this paradigm, the examiner must
evaluate the reasonableness of the employee's resignation
together with the employee's attempts to preserve their
employment. See Norfolk County Retirement Sys., 66 Mass. App.
Ct. at 766, 768. In Dohoney v. Director of Div. of Employment
Sec., 377 Mass. 333, 336 (1979), for example, the Supreme
Judicial Court reasoned that unemployment benefits are not
intended to be paid to "a claimant who, anticipating a necessary
absence from work, fails to take reasonable means to preserve
[his or] her job." The Dohoney claimant made no attempt to
explore the possibility of returning to work when physically
able to do so after childbirth. Id. at 338. The court
emphasized the claimant's inaction and ruled that "it was proper
for the examiner to have concluded that if the claimant had
wanted to preserve her job, she would have requested a leave of
absence." Id.6
6 While it is not necessary to seek a leave of absence to preserve employment, see Guarino v. Director of Div. of Employment Sec., 393 Mass. 89, 94 (1984), here, the plaintiff neither sought such a leave nor allowed the human resources department time to review his concerns before he abruptly resigned.
8 Similarly, here, the plaintiff made no attempt to preserve
his employment. He did not request a leave of absence, and
there is no indication in the record that he notified his
supervisor of his health concerns, or otherwise sought
accommodations for his health needs. And by failing to seek
medical attention on the evening of March 16 (or before
tendering his resignation), the plaintiff deprived the examiner
of objective, contemporaneous evidence of the severity of the
plaintiff's health condition, which might have aided his cause.
The plaintiff also maintains that his departure was the
result of discrimination or harassment and asserts that under
430 Code Mass. Regs § 404(5), an employee need not take steps to
resolve a bad employment situation before leaving a position due
to racial, sexual, or other unreasonable harassment. As the
plaintiff acknowledges, he bears the burden of proof and must
"establish[] to the satisfaction of the commissioner" that his
separation was "due to sexual, racial or other unreasonable
harassment" of which "the employer, its supervisory personnel or
agents knew or should have known." G. L. c. 151A, § 25 (e); see
Sohler v. Director of the Div. of Employment Sec., 377 Mass.
785, 788 n.1 (1979) ("The burden of proof as to all aspects of
eligibility for unemployment benefits, including the burden of
establishing good cause, rests with the worker"). He did not
9 carry that burden here. Thus, in the circumstances the examiner
correctly determined that the plaintiff failed to take
reasonable steps to preserve his employment.7
The examiner's determination that the plaintiff's
resignation was "voluntary and without good cause attributable
to the employing unit" was supported by substantial evidence in
the record.
Judgment affirmed.
By the Court (Massing, Hershfang & Tan, JJ.8),
Clerk
Entered: May 16, 2025.
7 We are similarly unpersuaded by the plaintiff's contention that seeking a leave of absence or utilizing human resources' help would have been futile. The plaintiff was granted a leave of absence in 2019 for health reasons, so he was aware that a leave of absence was an available alternative. And the plaintiff's proclaimed distrust of the human resources department did not excuse him from seeking its intervention, nor from allowing it more than a day in which to respond to his complaints.
8 The panelists are listed in order of seniority.