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-313
WILLIAM FAHEY
vs.
DIRECTOR OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, William Fahey, appeals from a judgment of
the District Court affirming the Department of Unemployment
Assistance (DUA)'s determination that Fahey is ineligible for
unemployment insurance (UI) benefits. We affirm.
Background. We summarize the factual findings of the DUA
review examiner (examiner), which were adopted by the DUA's
board of review (board). Where necessary, we supplement those
findings with materials from the administrative record. Fahey
was employed by the town of Andover as full-time director of a
youth program from January 18, 1994, until May 10, 2021. During
his tenure, the town gave Fahey a cellular telephone and a
1 Town of Andover. laptop computer, both exclusively for use in his position at
work. The town also provided Fahey with a copy of the town's
employee handbook. The handbook contained policies on, among
other things, internet use and public relations which read in
relevant part:
"Personal and other unauthorized use of the Town's E- mail and Internet is strictly prohibited . . . . [U]nder no circumstances may employees create, send or retrieve sexually or otherwise offensive, derogatory or harassing messages to employees or others by e-mail or the Internet. Violations of such standards may result in disciplinary action up to and including discharge."
In approximately 2011, Fahey met a sixteen year old female
high school student, whom we shall call Sally. She was a
participant in the youth program under Fahey's supervision. In
2016, Sally alleged that Fahey had "engaged in inappropriate
conduct when she was a minor" in the youth program. As a result
of the allegations, the town placed Fahey on paid administrative
leave beginning February 5, 2021.
In April 2021, the town hired a third party to conduct an
investigation into the allegations that Fahey "engaged in . . .
sexually inappropriate behavior with a woman years earlier."
The investigator concluded that Sally's allegation that Fahey
engaged in sexually inappropriate behavior toward her was "not
credible." However, the investigation revealed that Fahey
"hugged program participants and told them that he loved them."
2 In addition, the investigator determined that Fahey stayed
involved with Sally after she turned eighteen and had left the
youth program. The investigator's inquiry also included a
search of Fahey's town-issued cellular telephone, which revealed
personal text messages between Fahey and Sally; in some
messages, Fahey told her that she was beautiful and that he
loved her. On one occasion, Fahey met Sally at his workplace
from around 9:00 P.M. until midnight and then drove her home in
his personal vehicle. The investigation also revealed that
Fahey accessed and viewed a pornographic video of Sally. After
Fahey watched the video, he brought the video to the attention
of Sally's mother, and they watched the video together.
As a result of the investigation, the town terminated Fahey
from his position as director of youth services on May 10, 2021.
Subsequently, Fahey filed for UI benefits. After review, the
DUA issued a notice of disqualification finding Fahey ineligible
for benefits pursuant to G. L. c. 151A, § 25 (e) (2), beginning
May 9, 2021, and indefinitely thereafter. Fahey appealed the
notice of disqualification, and two evidentiary hearings were
held.
Ultimately, the examiner affirmed the DUA's determination
on the grounds that Fahey's interactions with Sally and her
mother resulted in violations of the town's sexual harassment
and internet use policies, and the professional boundaries of
3 his position. The examiner determined that Fahey's behavior
constituted "deliberate misconduct in wilful disregard of the
[employer's] interest." Fahey appealed the examiner's decision
to the board.
The board issued a decision affirming the examiner's
decision on the grounds that Fahey "engaged in deliberate
misconduct in wilful disregard of the employer's interest,"
"violated the email and internet use policy . . . that requires
employees to maintain a professional manner at all times," and
"crossed professional boundaries."2 It also concluded that
"[n]othing in the record suggests that there were mitigating
circumstances that required [Mr. Fahey] to act" as he did. As
to Fahey's interaction with Sally's mother, the board concluded
that the examiner "reasonably concluded that viewing the video
. . . was unprofessional and contrary to how the employer
expected its employees to interact with the public."
Fahey appealed the board's decision to the District Court
pursuant to G. L. c. 151A, § 42. The judge concluded that the
board's decision was supported by substantial evidence and
affirmed the board's determination that Fahey was ineligible for
UI benefits.
2 Of note, the board did not agree with the examiner's conclusion that Fahey's conduct violated the employer's sexual harassment policy.
4 Discussion. An administrative agency's decision may only
be overturned if it is "unsupported by substantial evidence," or
the decision is "arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with law."
Commonwealth v. Commonwealth Employment Relations Bd., 101 Mass.
App. Ct. 616, 622 (2022), citing G. L. c. 30A, § 14 (7).
"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). Our review of the board's determination that a claimant
is disqualified from receiving benefits is "highly deferential
to the agency" (citation omitted), Lincoln Pharmacy of Milford,
Inc. v. Commissioner of the Div. of Unemployment Assistance, 74
Mass. App. Ct. 428, 431 (2009), and limited to deciding "whether
the decision 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).
As relevant here, G. L. c. 151A, § 25 (e) (2) bars an
employee from receiving UI benefits if they were terminated due
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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-313
WILLIAM FAHEY
vs.
DIRECTOR OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, William Fahey, appeals from a judgment of
the District Court affirming the Department of Unemployment
Assistance (DUA)'s determination that Fahey is ineligible for
unemployment insurance (UI) benefits. We affirm.
Background. We summarize the factual findings of the DUA
review examiner (examiner), which were adopted by the DUA's
board of review (board). Where necessary, we supplement those
findings with materials from the administrative record. Fahey
was employed by the town of Andover as full-time director of a
youth program from January 18, 1994, until May 10, 2021. During
his tenure, the town gave Fahey a cellular telephone and a
1 Town of Andover. laptop computer, both exclusively for use in his position at
work. The town also provided Fahey with a copy of the town's
employee handbook. The handbook contained policies on, among
other things, internet use and public relations which read in
relevant part:
"Personal and other unauthorized use of the Town's E- mail and Internet is strictly prohibited . . . . [U]nder no circumstances may employees create, send or retrieve sexually or otherwise offensive, derogatory or harassing messages to employees or others by e-mail or the Internet. Violations of such standards may result in disciplinary action up to and including discharge."
In approximately 2011, Fahey met a sixteen year old female
high school student, whom we shall call Sally. She was a
participant in the youth program under Fahey's supervision. In
2016, Sally alleged that Fahey had "engaged in inappropriate
conduct when she was a minor" in the youth program. As a result
of the allegations, the town placed Fahey on paid administrative
leave beginning February 5, 2021.
In April 2021, the town hired a third party to conduct an
investigation into the allegations that Fahey "engaged in . . .
sexually inappropriate behavior with a woman years earlier."
The investigator concluded that Sally's allegation that Fahey
engaged in sexually inappropriate behavior toward her was "not
credible." However, the investigation revealed that Fahey
"hugged program participants and told them that he loved them."
2 In addition, the investigator determined that Fahey stayed
involved with Sally after she turned eighteen and had left the
youth program. The investigator's inquiry also included a
search of Fahey's town-issued cellular telephone, which revealed
personal text messages between Fahey and Sally; in some
messages, Fahey told her that she was beautiful and that he
loved her. On one occasion, Fahey met Sally at his workplace
from around 9:00 P.M. until midnight and then drove her home in
his personal vehicle. The investigation also revealed that
Fahey accessed and viewed a pornographic video of Sally. After
Fahey watched the video, he brought the video to the attention
of Sally's mother, and they watched the video together.
As a result of the investigation, the town terminated Fahey
from his position as director of youth services on May 10, 2021.
Subsequently, Fahey filed for UI benefits. After review, the
DUA issued a notice of disqualification finding Fahey ineligible
for benefits pursuant to G. L. c. 151A, § 25 (e) (2), beginning
May 9, 2021, and indefinitely thereafter. Fahey appealed the
notice of disqualification, and two evidentiary hearings were
held.
Ultimately, the examiner affirmed the DUA's determination
on the grounds that Fahey's interactions with Sally and her
mother resulted in violations of the town's sexual harassment
and internet use policies, and the professional boundaries of
3 his position. The examiner determined that Fahey's behavior
constituted "deliberate misconduct in wilful disregard of the
[employer's] interest." Fahey appealed the examiner's decision
to the board.
The board issued a decision affirming the examiner's
decision on the grounds that Fahey "engaged in deliberate
misconduct in wilful disregard of the employer's interest,"
"violated the email and internet use policy . . . that requires
employees to maintain a professional manner at all times," and
"crossed professional boundaries."2 It also concluded that
"[n]othing in the record suggests that there were mitigating
circumstances that required [Mr. Fahey] to act" as he did. As
to Fahey's interaction with Sally's mother, the board concluded
that the examiner "reasonably concluded that viewing the video
. . . was unprofessional and contrary to how the employer
expected its employees to interact with the public."
Fahey appealed the board's decision to the District Court
pursuant to G. L. c. 151A, § 42. The judge concluded that the
board's decision was supported by substantial evidence and
affirmed the board's determination that Fahey was ineligible for
UI benefits.
2 Of note, the board did not agree with the examiner's conclusion that Fahey's conduct violated the employer's sexual harassment policy.
4 Discussion. An administrative agency's decision may only
be overturned if it is "unsupported by substantial evidence," or
the decision is "arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with law."
Commonwealth v. Commonwealth Employment Relations Bd., 101 Mass.
App. Ct. 616, 622 (2022), citing G. L. c. 30A, § 14 (7).
"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). Our review of the board's determination that a claimant
is disqualified from receiving benefits is "highly deferential
to the agency" (citation omitted), Lincoln Pharmacy of Milford,
Inc. v. Commissioner of the Div. of Unemployment Assistance, 74
Mass. App. Ct. 428, 431 (2009), and limited to deciding "whether
the decision 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).
As relevant here, G. L. c. 151A, § 25 (e) (2) bars an
employee from receiving UI benefits if they were terminated due
"to deliberate misconduct in wilful disregard of the employing
unit's interest." Fallon Community Health Plan, Inc. v. Acting
Director of the Dep't of Unemployment Assistance, 493 Mass. 591,
5 592 (2024), quoting G. L. c. 151A, § 25 (e) (2). In determining
an employee's state of mind, "the factfinder must take into
account the worker's knowledge of the employer's expectation,
the reasonableness of that expectation and the presence of any
mitigating factors" (quotations and citations omitted). Fallon
Community Health Plan, Inc., supra, at 593.
We conclude that the board appropriately reviewed the
entire record and its conclusion was supported by substantial
evidence. On appeal, Fahey asserts that the board ignored
"significant mitigating factors" regarding his state of mind.3
All of Fahey's arguments were considered and properly rejected.
As set forth supra, there was substantial evidence that Fahey
used his town-issued cellular telephone to send text messages to
Sally which "crossed professional boundaries," viewed a
pornographic video of Sally and then showed it to her mother,
and met alone with Sally on the employer's premises late at
night.
Additionally, the board's finding that Fahey's "conduct was
deliberate," such that he was aware of his actions and probable
consequences, was substantially supported by the evidence. The
3 Fahey lists various "mitigating factors," including that he helped Sally at her family's request and because Sally was "mentally unhealthy." We defer to the agency's determination that these mitigating factors were nonexistent. See Lincoln Pharmacy of Milford, Inc., 74 Mass. App. Ct. at 431.
6 board concluded that there was "no suggestion that any of [his]
actions . . . were accidental."4 The board assessed whether
there existed any mitigating circumstances sufficient to justify
Fahey's misconduct by reviewing the employer's interest "to
provide 'recreation, educational, and cultural programs for
youngsters.'" The board was unable to find anything in the
record to suggest "there were mitigating circumstances that
required [Fahey] to" act the way he did. Thus, the board
properly reviewed the evidence and concluded there were no
circumstances which negated the willfulness of Fahey's
disqualifying conduct. See Gupta v. Deputy Director of the Div.
of Employment & Training, 62 Mass. App. Ct. 579, 586-587 (2004).
The judge did not err in upholding the board's decision
that Fahey was disqualified from UI benefits due to his
4 In contrast to Fahey's assertion that he does not recall being provided with the employee handbook, he testified at the hearing that he was familiar with the town's public relations policy regarding the expectation that "employees will maintain a professional manner at all times." The board thus concluded that Fahey was "aware of the employer's expectation" regarding these policies.
7 deliberate misconduct in willful disregard of the employer's
interest.5
Judgment affirmed.
By the Court (Vuono, Brennan & D'Angelo, JJ.6),
Clerk
Entered: April 15, 2025.
5 We see no merit to Fahey's argument that it was improper to not allow cross-examination of a DUA witness who had no independent knowledge of the allegations contained in the investigator's report. If Fahey felt it was necessary to question the investigator directly, he could have asked for further time to summons the investigator to testify. See 801 Code Mass. Regs. § 1.02(10)(i) (2020). He did not do so.
6 The panelists are listed in order of seniority.