Hoye v. Director of the Division of Employment Security

475 N.E.2d 1218, 394 Mass. 411, 1985 Mass. LEXIS 1400
CourtMassachusetts Supreme Judicial Court
DecidedApril 3, 1985
StatusPublished
Cited by1 cases

This text of 475 N.E.2d 1218 (Hoye v. Director of the Division of Employment Security) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoye v. Director of the Division of Employment Security, 475 N.E.2d 1218, 394 Mass. 411, 1985 Mass. LEXIS 1400 (Mass. 1985).

Opinion

O’Connor, J.

Thomas Hoye appeals from a District Court judge’s affirmance of a denial of unemployment compensation benefits by the Division of Employment Security (division). The division denied the benefits on the ground that Hoye’s discharge resulted from “deliberate misconduct in wilful disregard of the employing unit’s interest.” G. L. c. 151A, § 25 (e) (2). We affirm the denial.

[412]*412After being discharged from his job at Cardinal Cushing General Hospital, Hoye filed a claim for unemployment compensation benefits. The division initially approved Hoye’s claim, and the hospital appealed. The division held a hearing, and the review examiner found the following facts that we quote in part and paraphrase in part.

From February 3, 1980, through November 14, 1982, Hoye worked for the hospital as a security officer on the 11:30 p.m. to 7:30 a.m. shift. He received a number of warnings, both oral and written, regarding, among other things, “excessive absenteeism [and] failure to give proper notice of the reason for his absence in accordance with [a hospital rule for security officers].” The rule, quoted by the review examiner in his findings, provided: “Whenever a security officer is unable to report for duty because of illness, he shall, at least two hours prior to the time he is scheduled for duty, notify and security chief, the security sergeant or the security officer on duty.” Hoye acknowledged having read the rule. In July, 1982, Hoye was warned that if he “continued to abuse the sick leave policy,” he “would be subject to disciplinary action that may result in suspension or termination.” “On Oct. 25, 1982, he was told to furnish a medical certificate after he had called in sick on two consecutive Sundays following a lengthy period of absence due to an industrial accident. He was told that he would be subject to disciplinary action if he failed to furnish a medical certificate. A doctor did declare [Hoye] medically fit for duty on Oct. 30, 1982, but he was again absent from work on Oct. 31, 1982, Nov. 5, 1982, Nov. 6, 1982, and Nov. 7, 1982.” On November 8, 1982, a doctor declared Hoye fit for duty as of November 10, and Hoye worked on November 10 and 11. On November 12, however, at 2:45 p.m. , Hoye “contacted the [hospital] by telephone and left a message with the switchboard operator that he would not be able to report to work for the next three days.” The hospital’s chief of security arranged for a replacement. Later that day, at 10:10 p.m. , Hoye again called the hospital. On that occasion, Hoye told the security guard on duty that he would report for work the next day. However, the chief of security did not let Hoye work on November 13 or [413]*41314, and, effective November 14, Hoye was discharged. “The claimant [Hoye] asserts that he was not able to work on Nov. 12, 1982, because his legs were swollen. However, he did not provide any medical evidence to support that his absence on Nov. 12, 1982 was necessary.”

Based on those findings, the review examiner concluded: “From the foregoing testimony and from the evidence, it is found that the claimant was discharged because of his failure to provide timely notice of the reason for his absence in accordance with the employing unit’s rules and regulations applicable to security officers as well as for excessive absenteeism. With respect to his failure to provide timely notice regarding the reason for his absence, it is further found that such failure was without good cause. With respect to the claimant’s most recent absence, it is further found that he had previously been warned that further absences could result in- his dismissal. It is also found that in the absence of medical evidence, it cannot be established that the claimant’s most recent absence* was due to a compelling reason. Therefore, the claimant’s discharge was due solely to deliberate misconduct in wilful disregard of the employing unit’s interest within the meaning of [G. L. c. 151A, § 25 (e)(2)].” The review examiner reversed the determination allowing benefits.

Hoye appealed the review examiner’s decision to the division’s board of review (board), but the board denied Hoye’s application for further review, thereby making the review examiner’s findings the board’s final decision. G. L. c. 151 A, § 41 (c). Before this court, Hoye argues that substantial evidence does not support the review examiner’s ultimate conclusion that Hoye’s discharge resulted “solely from deliberate misconduct in wilful disregard of the employing unit’s interest.” Hoye also argues that the review examiner’s subsidiary findings were insufficient to support his conclusion.

“The apparent purpose of § 25 (e) (2) . . . is to deny benefits to a claimant who has brought about his own unemployment through intentional disregard of standards of behavior which his employer has a right to expect.” Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97 (1979). “De[414]*414liberate misconduct in wilful disregard of the employer’s interest suggests intentional conduct or inaction which the employee knew was contrary to the employer’s interest.” Goodridge v. Director of the Div. of Employment Sec., 375 Mass. 434, 436 (1978). Therefore, to disqualify a discharged employee under § 25 (e) (2), the division must focus with particularity on one critical issue — the employee’s state of mind at the time of the misconduct. Torres v. Director of the Div. of Employment Sec., 387 Mass. 776, 779 (1982). Garfield, supra at 97. The division must-consider “the worker’s knowledge of the employer’s expectation, the reasonableness of that expectation and the presence of any mitigating factors.” Id.

The review examiner’s findings and conclusions demonstrate that Hoye “brought about his own unemployment through intentional disregard of standards of behavior which his employer ha[d] a right to expect.” Garfield, supra at 97. Although the findings are less clear than they ought to be, we think that they fairly may be read to say that Hoye was discharged because, on November 12, 1982, he knowingly and inexcusably violated a hospital rule that required him to give to the security chief, security sergeant, or security officer on duty, timely notice of his inability to work due to illness, and because, on the same day, he unjustifiably failed to report to work despite numerous prior absences and warnings about the potential consequences of further unexcused absences. That finding is supported by substantial evidence, and, when read in conjunction with the review examiner’s other findings, it supports the conclusion that Hoye’s discharge “was due solely to deliberate misconduct in wilful disregard of the employing unit’s interest.”

There was evidence of the hospital rule quoted by the review examiner in his findings, evidence that Hoye read the rule shortly after he began working at the hospital, and evidence that when Hoye called in sick on occasions before November 12, 1982, he always spoke to one of the three individuals to whom the rule required him to speak. Furthermore, there was evidence that, when Hoye telephoned the hospital on November 12, 1982, at 2:45 p.m. , he requested the security department, [415]*415but the switchboard operator informed him that the security chief and the security sergeant were not available, and that the security officer on duty was “on parking duty outside.”

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Related

Cantres v. Director of the Division of Employment Security
484 N.E.2d 1336 (Massachusetts Supreme Judicial Court, 1985)

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Bluebook (online)
475 N.E.2d 1218, 394 Mass. 411, 1985 Mass. LEXIS 1400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoye-v-director-of-the-division-of-employment-security-mass-1985.