ANGELICA E. ALVAREZ v. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & Another.

• Court: Massachusetts Appeals Court
• Decided: November 13, 2025
• Docket: 24-P-0760
• Status: Unpublished

Opinion

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-760

ANGELICA E. ALVAREZ

vs.

DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The applicant, Angelica E. Alvarez, appeals from a judgment

of a District Court judge affirming a decision of the Department

of Unemployment Assistance Board of Review (board) denying her

unemployment benefits. Concluding that substantial evidence

supported the board's finding that the applicant intentionally

acted contrary to her employer's interests where she interfered

with the store manager and then participated in a text message

conversation sent to multiple employees that included homophobic

slurs and threats of violence against the manager, we affirm.

1. Standard of review. "We review the department's

decision pursuant to G. L. c. 30A, § 14 (7)." Fallon Community

1 Canna Provisions, Inc. Health Plan, Inc. v. Acting Director of the Dep't of

Unemployment Assistance, 493 Mass. 591, 595 (2024). "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." DiGiulio v. Director of the Dep't of

Unemployment Assistance, 94 Mass. App. Ct. 292, 293 (2018),

quoting Coverall N. Am., Inc. v. Commissioner of the Div. of

Unemployment Assistance, 447 Mass. 852, 857 (2006). "We 'give

due weight to the experience, technical competence, and

specialized knowledge of the agency, as well as to the

discretionary authority conferred upon it.'" Cape Cod

Collaborative v. Director of the Dep't of Unemployment

Assistance, 91 Mass. App. Ct. 436, 440 (2017), quoting G. L.

c. 30A, § 14 (7).

2. Intentional misconduct. Pursuant to G. L. c. 151A,

§ 25 (e) (2), "an employee is disqualified from unemployment

benefits if he or she was discharged because of 'intentional

conduct or inaction which the employee knew was contrary to the

employer's interest.'" Fallon Community Health Plan, Inc., 493

Mass. at 593, quoting Still v. Commissioner of Employment &

Training, 423 Mass. 805, 810 (1996). The employer had the

burden of proof at the hearing. See Shriver Nursing Servs.,

2 Inc. v. Commissioner of the Div. of Unemployment Assistance, 82

Mass. App. Ct. 367, 370 (2012).

Here, evidence was presented that the store manager turned

up the volume of the music in the store and the applicant "kept

turning it down," requiring the manager to turn it up again.

This happened "over and over" until the manager sent her home.

Although the applicant testified that the manager did not

explicitly tell her not to change the volume, the

contemporaneous text messages reflect that the manager "TOLD HER

NOT TO TOUCH THE MUSIC." The applicant did not actually leave

until the manager threatened to call the police.2

Around this time, the applicant participated in a group

text message conversation in which she complained about the

manager. In that text conversation, a coworker used a

homophobic slur to refer to the manager and expressed the

intention to "punch the fucking lights out [of] his ass."

Another called the manager "a bitch."3 The applicant continued

to participate in the conversation and expressed her intention

to continue turning down the music. Besides the four

participants in the conversation, at least three other employees

received the text messages. Upon being told she was being

2 The board's statement that the manager actually called the police is in error.

3 Both coworkers were also fired.

3 terminated, the applicant immediately used profanity and stated

that she intended to increase her harassment of the manager.

Faced with this evidence, the board reasonably determined

that the applicant was intentionally insubordinate, contrary to

the employer's interests. Contrary to the applicant's

assertion, the board was not required to credit the applicant's

testimony that she acted in this way because she "couldn't

communicate with customers." See Lincoln Pharmacy of Milford,

Inc. v. Commissioner of the Div. of Unemployment Assistance, 74

Mass. App. Ct. 428, 434 (2009) ("We will not disturb the board's

decision to discredit [the witness's] explanation"). Indeed,

the evidence strongly supported the conclusion that she was

intentionally interfering with the management of the store out

of dislike for the manager. Similarly, the board had no duty to

credit the applicant's testimony about earlier misconduct by the

manager, much less to find that it established that her

insubordination was in service of her employer's best interests.

Also misplaced is the applicant's suggestion that only a

hostile work environment, as defined in the employment

discrimination context, could be contrary to the employer's

interest. Whether or not the text message conversation rose to

the level of employment discrimination, the board could

reasonably find that messages to numerous employees using slurs

and threatening violence against a store manager intentionally

4 created a hostile work environment contrary to the employer's

interests. Indeed, the applicant agreed that there was a

hostile work environment but merely asserted that "[w]e were

already in a hostile work environment." Even if true, the board

could find that the applicant's contribution to that environment

was intentional conduct contrary to the employer's interest.

The board's decision was lawful and supported by substantial

evidence.4

Judgment affirmed.

By the Court (Ditkoff, D'Angelo & Wood, JJ.5),

Clerk

Entered: November 13, 2025.

4 For reasons that are hard to fathom, the board's lawyer devotes nearly one-third of his argument section to arguing that the board erred in concluding that there was "insufficient evidence to establish that the discharge was for a knowing violation of the employer's reasonable and uniformly enforced rule or policy." Putting aside the fact that no such argument was raised in the District Court, the board's conclusion was well supported by the evidence, as the employer struggled to identify any such policy at the hearing.

5 The panelists are listed in order of seniority.