COMMONWEALTH OF MASSACHUSETTS


DIVISION OF ADMINISTRATIVE LAW APPEALS

Suffolk, ss.

Docket No. VS-09-478

NATHANIEL P. PATTERSON III,

Petitioner

v.

DEPARTMENT OF VETERANS' SERVICES,

Respondent

Appearance for the Petitioner:

Nathaniel P. Patterson III, pro se

25 Valley
Covington, GA 30016


Appearance for Respondent:

Gail Cavanaugh-McAuliffe, Esq.

Dep't. of Veterans Services
600 Washington St., Suite 1100
Boston, MA 02111


Administrative Magistrate:

Mark L. Silverstein, Esq.


Summary of Decision

M.G.L. c. 115 veterans' benefits were properly denied based upon voluntary unemployment because the applicant, perceiving a hostile work environment that he no longer found tolerable, decided he would not return to work unless the workplace environment was rectified to his satisfaction, absented himself from work without prior notice to or permission from his supervisor, and therefore quit before his supervisor terminated him after several days of absence.

DECISION

Background


Petitioner Nathaniel P. Patterson III, a United States Air Force veteran, applied to the Department of Veterans' Services (DVS) for M.G.L. c. 115 veterans' benefits on May 22, 2009 shortly after he received a letter terminating, for unauthorized work absences, his employment as case manager with the Western Massachusetts Bi-Lingual Veterans' Outreach Center in Springfield, Massachusetts. The benefits application was reviewed initially by the Springfield Veterans' Service Department, which acts as the City of Springfield's veterans service agent for the purpose of disbursing veterans' benefits. See M.G.L. c. 115, § 3. DVS regulations allow the veterans' agent to disqualify from benefits eligibility "[a] veteran . . . whose voluntary unemployment or continuous unwholesome habits had produced the need for benefits." 108 CMR 3.06 (1)(b). The Springfield Veterans' Service Department denied benefits on May 29, 2009 pursuant to this regulation because Mr. Patterson was "terminated due to not calling in and not showing up for [his] shift," and his need for benefits was therefore the result of his own actions.

Mr. Patterson appealed the denial of his veterans' benefits application to DVS on June 5, 2009. [fn. 1] He claimed inability to continue working at the Outreach Center because of a hostile work environment, including "continuous attacks" by co-workers and managerial indifference to them, that harmed him physically and mentally, impeded his work performance and made him reluctant to report for work.

Following a telephonic hearing, DVS issued a decision on July 15, 2009 sustaining the denial of M.G.L. c. 115 veterans' benefits pursuant to 108 CMR 3.06(1)(b). DVS concluded that Mr. Patterson had chosen to address workplace issues by not returning to work, which precipitated his dismissal and underscored that his need for veterans' benefits was the result of his voluntary unemployment.

Mr. Patterson filed a timely appeal challenging DVS's decision with the Division of Administrative Law Appeals (DALA) on July 16, 2009. [fn. 2] For the convenience of Mr. Patterson, who had asserted that traveling to Boston would cause him financial hardship, I held a telephonic hearing using a speakerphone and recorded on a single microcassette tape on October 6, 2009 at the Department of Veterans' Services at 600 Washington Street in Boston, with Mr. Patterson and one of DVS's proposed expected witnesses, James Mahoney (an investigator for the Springfield Veterans' Service Department), on conference call. [fn. 3] Mr. Patterson was sworn over the telephone, and DVS acknowledged hearing him take and subscribe to the oath to present truthful testimony. He testified on his own behalf and presented no other witnesses. After he completed his direct case, DVS, which was prepared to offer testimony by Mr. Mahoney and Evan Makrinikolas, DVS's Chief Authorizer, elected to dispense with providing direct testimony and submit its direct case comprising the agency's 15 hearing exhibits. DVS counsel also presented an oral summary of her agency's position, which tracked the findings and conclusions recited in its decision.

I admitted 17 exhibits into evidence, 16 of them at the hearing. DVS offered most of these: the exhibits to which DVS referred in its July 15, 2009 Decision (Exhs. 1-9), the Decision itself (Exh. 10) and additional documents, mostly correspondence in 2007 and 2008 between Mr. Patterson and his supervisor, that the agency filed on October 1, 2009 (Exhs. 11-15). Mr. Patterson offered a single exhibit-an email he sent to his former supervisor at the Western Massachusets Bi-Lingual Veterans' Outreach Center on April 23, 2009 (Exh. 16).

Upon the completion of DVS's case, I declared the hearing concluded and informed the parties that I was closing the record except for the receipt by October 16, 2009 of post-hearing memoranda, should either party elect to file one, and documentation regarding Mr. Patterson's eviction from his apartment in Springfield, Massachusetts that DVS had requested. [fn. 4] Mr. Patterson forwarded to DVS, and the agency filed on October 14, 2009, a copy of the Housing Court's August 31, 2009 execution on judgment for summary process by which Mr. Patterson was evicted from his Springfield apartment (Exh. 17).


Findings of Fact


I make the following findings of fact based upon the record before me.

1. Petitioner Nathaniel P. Patterson (d.o.b. April 19, 1958) is an honorably discharged United States Air Force veteran who was on active duty from November 5, 1979 until July 18, 1980. (Exh. 5.)

2. Beginning on October 2, 2006, Mr. Patterson was employed by the Puerto Rican Veterans' Association of Massachusetts, Inc. as case manager at the Western Massachusetts Bi-Lingual Veterans' Outreach Center in Springfield, Massachusetts, where he had previously lived as a resident and worked as a house manager. (Exh. 11.)

3. As case manager at the Outreach Center, Mr. Patterson was responsible for maintaining and repairing the Center's computers, work that he felt comfortable performing as he was an A+ certified computer technician. (Patterson testimony.) He was also required to act as house manager, which included tracking food use at the Center, maintenance tasks such as painting and cleaning rooms when residents moved out, ensuring that residents adhered to the Center's policies and procedures, and arranging for the screening and intake of new residents and for the transition of residents discharged from the Center. (Exh. 3.)

4. On May 15, 2007, Mr. Patterson received a letter of reprimand from his supervisor, Outreach Center Executive Director Gumersindo Gomez, because he had absented himself from work without prior authorization four days earlier, when he had been scheduled to join the Center's staff for training in Boston, and on the same day had not responded to cell phone calls directing him to report to work. (Exh. 12.) Mr. Gomzez stated in the reprimand letter that this was not the first such occurrence on Mr. Patterson's part. He asked that Mr. Patterson let him know whether there was "something personal" that was preventing him from reporting for work, and told him that although he had shown himself "to be one hell of an employee," he needed "to close the loop" on whatever was causing him to behave as he was doing, and he offered to provide help if Mr. Patterson needed it. (Id.)

5. These problems persisted. In early October, 2007, Mr. Patterson apologized to Mr. Gomez for missing work days and not controlling his temper in the workplace, problems he attributed to "negative life issues" and "being out of the office environment" for several years before working at the Outreach Center. (Exh. 13.)

6. On December 17, 2008, Mr. Gomez reprimanded Mr. Patterson for carrying on, in the supervisor's presence, an argument with a co-worker (Wilfredo Melendez) that had flared previously and had prompted an earlier warning from Mr. Gomez to keep his emotions, and his dispute with Mr. Melendez, out of the office. The letter warned Mr. Patterson that if this conduct continued, he would be suspended without pay or terminated from his job. (Exh. 14.)

7. Mr. Patterson continued to work at the Outreach Center after December 17, 2008, without suspension or termination of his employment for the conduct described in Mr. Gomez's reprimand. However, he had grown increasingly upset about what he perceived to be disrespect, underhanded conduct, and hostile conduct directed toward him by co-workers and indifference to it on Mr. Gomez's part. By early May 2009, he "had it with all this crap," had become angry and unable to sleep, and felt unable or unwilling to return to work at the Outreach Center unless the co-worker misconduct and hostility toward him that he experienced or perceived ceased. (Exh. 8; Patterson testimony.)

8. Mr. Patterson called Mr. Gomez on Tuesday, May 5, 2009, to tell him he was going to be absent from work on that day. He also did not report for work at the Outreach Center on May 6 and 7, 2009, but he did not contact Mr. Gomez on either of those days. (Exh. 8.)

9. On the morning of May 7, 2009, Mr. Gomez sent an email to Mr. Patterson in which he stated:

This is the second day that you have been absented from your job without me receiving a call nor an e-mail letting me know of your situation. Is there a problem that you can't call? This is really a serious situation for you pertaining to your job.

(Exh. 8).

10. Mr. Patterson replied by email the following day (Friday, May 8, 2009) that he would "return to work on Monday with a doctors note for the flu." Mr. Patterson also stated, in the same email, that:

I honestly am torn about my job, im discouraged to return to work because it seems like im fighting everyone.

I need to deal with this before I return. Edwin and Marshall (two co-workers) are really bothering me. Its not being addressed so im discouraged. They are truly making me hate being there. So while I get rid of this sickness I will be seriously considering my employment.

(Id.)

11. Mr. Patterson did not show up for work on Monday, May 11, 2009, did not produce a doctor's note for his supervisor as he had promised to do, and did not contact Mr. Gomez about this absence. (Exh. 8; second page of emails.)

12. Mr. Gomez notified Mr. Patterson on May 11, 2009 that he was terminating him as the Outreach Center's case manager. (Exhs. 3, 9.) The reasons Mr. Gomez gave for the termination were (1) Mr. Patterson's failure to give him notice in advance, by telephone or email, that he would be taking two days off on May 6 and 7, 2009, (2) not contacting him about these absences until May 8, 2009, after Mr. Gomez had emailed him the previously day, and (3) failing to appear for work on May 11, 2009, also without giving prior notice by telephone or email, after stating in his May 8 email that he was sick but would report to work on May 11 with a doctor's note. (Exh. 9.)

13. Although he had already mailed the termination letter, Mr. Gomez emailed Mr. Patterson on the morning on May 12, 2009 to inquire about his whereabouts. Mr. Gomez reminded Mr. Patterson that he had been absent from work without contacting his supervisor on May 6 and 7 and, despite a promise to report to work, again on May 11, 2009, and stated that Mr. Patterson did not seem to care that his job was "on the line." (Exh. 8.)

14. Mr. Patterson replied to Mr. Gomez by email on May 13, 2009 that although he enjoyed his work at the Outreach Center and wanted to return to work, he had been "at war" with his co-workers for the past year, had "never felt like part of the team," and had "become very unhappy" and had "shut down." Mr. Patterson furnished several examples of hostile and disrespectful co-worker conduct toward him: he was accused falsely of sexual harassment by "one of the volunteers" at the Center; a co-worker blocked his access to the internet, and someone erased two years of his work and his client files that he had stored on his computer; others had "sabotaged" computers he had set up in the Center's lobby; the Center's program manager blamed everyone for his own shortcomings, stole a resident's car alarm, spoke negatively about Mr. Patterson behind his back, and did not show up for work, which made it necessary for Mr. Patterson to paint rooms and hallways at the Center without assistance. Mr. Patterson stated that although he wanted to continue in his position and hoped he had not really lost his job, his "peace of mind mean[t] more" to him and the co-worker misconduct and hostility toward him needed to stop. (Exh. 8.)

15. Mr. Patterson appealed his termination to the Veterans' Outreach Center's Board of Directors on May 16, 2009. He conceded that he should have called Mr. Gomez in advance rather than simply failing to appear for work, but explained he was trying to draw his attention to his hostile work environment, as well as to "slander, lies, sabotage and outright aggression" by his co-workers and, in particular, to problems he had with the Center's program manager. (Exh. 3.)

16. Mr. Patterson applied to DVS for M.G.L. c. 115 veterans' benefits on May 22, 2009, asserting that he was unemployed because his employer had terminated him. (Exh. 4.)

17. On May 29, 2009, the Springfield Veterans' Service Department issued a Notice of Action denying Mr. Patterson's benefits application. Citing 108 CMR 3.06, the Springfield Veterans' Service Department stated that Mr. Patterson's previous employer had terminated him "due to not calling in and not showing up" for his shift, and his need for benefits was therefore "directly due" to his own actions. (Exh. 1.)

18. Mr. Patterson challenged the denial of his veterans' benefits application by filing a timely appeal with DVS on June 5, 2009. (Exh. 6.) He claimed, as he had asserted to his former supervisor, that a hostile work environment generated by co-worker misconduct had prevented him from performing his job duties and had made him reluctant to report for work. (Id.)

19. DVS held a hearing on Mr. Patterson's appeal at its Boston offices on July 10, 2009 at which he and DVS Chief Authorizer Evan Makrinikolas testified live, and testimony was taken by telephone from several DVS witnesses who were in Springfield (the City of Springfield's Veterans' Services Department Director, Daniel Walsh, and one of its investigators, James Mahoney, and Mr. Gomez, the Outreach Center's Director).

20. On July 15, 2009, DVS issued a Decision sustaining the denial of M.G.L. c. 115 benefits to Mr. Patterson. DVS concluded that benefits were denied properly under 108 CMR 3.06(1)(b) because Mr. Patterson's need for them resulted from his voluntary unemployment. DVS found that Mr. Patterson had chosen, on his own, "to stay at home and communicate with his employer via e-mail regarding his alleged illness and other work related matters that he felt were not resolved rather than reporting back to work to address the issues he was facing," and by electing to address an allegedly hostile work environment by failing to return to work at the Outreach Center and by using a period of asserted illness "to make a point to his employer which ultimately led to his dismissal." (Exh. 10.)

21. Mr. Patterson filed a timely appeal challenging DVS's decision with the Division of Administrative Law Appeals on July 16, 2009.


Discussion


Benefits made available to veterans under M.G.L. c. 115 are a form of needs-based public assistance. The statute specifies, among other things, that "[o]nly such amount shall be paid to or for any veteran or dependent as may be necessary to afford him sufficient relief or support and such benefits shall not be paid to any person who is able to support himself or who is in receipt of income from any source sufficient for his support." M.G.L. c. 115, § 5, second para. The statute also provides that "[n]o veterans' benefits shall be paid . . . to or for any veteran or applicant if the necessity therefor is caused by his voluntary idleness." M.G.L. c. 115, § 5, third para. Echoing this statutory directive, the Department of Veterans' Services regulations allow the veterans' agent to disqualify from benefits eligibility "[a] veteran . . . whose voluntary unemployment or continuous unwholesome habits had produced the need for benefits." 108 CMR 3.06(1)(b). The regulations define "voluntary unemployment" as "unemployment brought about by one's own acts or failure to act." 108 CMR 2.02. The issue to be decided here is whether Mr. Patterson's need for M.G.L. c. 115 benefits was "voluntary unemployment," as DVS determined, which would support the denial of veterans' benefits under 108 CMR 3.06(1)(b).

The record shows a history of tension and arguments between Mr. Patterson and his co-workers at the Outreach Center, beginning in 2007, that led him to perceive disrespect, underhanded conduct and slights directed toward him, and indifference to this hostility on management's part. Whether or not the situation was as Mr. Patterson perceived it, by early May 2009 he had found the work environment at the Outreach Center to be intolerable. (Findings 4-7.)

It is unnecessary to determine whether the work environment at the Center was as Mr. Patterson perceived it to be. For the purpose of determining whether veterans' benefits were properly denied, what matters is how Mr. Patterson chose to respond.

Mr. Patterson did not report to work beginning on May 5, 2009. Although he contacted Mr. Gomez about his absence on that date, he did not do so for his subsequent absences from work on May 6, 7 and 11, 2009. (Finding 8.) Although his email to Mr. Gomez on May 8, 2009 suggested he had been absent due to a bout of flu beyond his control, Mr. Patterson did not keep his promise to return to work on May 11, 2009, again without notifying his supervisor, or to produce a doctor's note. (Findings 10, 11.)

There was another explanation for the absence that Mr. Patterson initiated on May 5, 2009 and continued through May 11, 2009. His email exchange with Mr. Gomez, both before the supervisor terminated him on May 11, 2009 and after, reveal that Mr. Patterson had decided not to return to work unless the work environment was addressed to his satisfaction. Responding to the termination letter, Mr. Patterson informed Mr. Gomez on May 13, 2009 that because his peace of mind meant more to him than his position at the Center, he would not return to work unless and until the workplace environment was corrected as he requested. (Findings 14, 15.) Moreover, as Mr. Patterson explained in his May 16, 2009 appeal to the Center's Board of Directors challenging his termination, he had decided to absent himself from work at the Center to draw attention to the hostile workplace environment and to his co-workers' instances of misconduct and aggression toward him. (Exh. 3.) Mr. Patterson implemented his decision, starting on May 5, 2009-six days before he was terminated-by absenting himself from work without prior notice to or approval by his supervisor. Whether this decision was reasonable in the circumstances or not, and whether or not the absence also had a medical explanation (a proposition without evidentiary support, as Mr. Patterson did not produce the doctor's note he promised Mr. Gomez on May 8, 2009), it was a decision Mr. Patterson made, deliberately, because he perceived the workplace environment to be intolerable in terms of his own physical and mental health.

Scant, but sufficiently informative, caselaw instructs that workplace conflicts prompting a veteran to quit his job "cannot serve as the basis for veterans' benefits" because, whatever the underlying reason for doing so, quitting a job renders the veteran voluntarily unemployed. See Doriss v. Department of Veterans' Services, Docket No. VS-05-1485 (Mass. Div. of Admin. Law App., Mar. 7, 2006)(a veteran seeking M.G.L. c. 115 benefits rendered himself voluntarily unemployed when he quit his job due to personality conflicts with his supervisor). That conclusion squares with the regulatory definition of "voluntary unemployment" furnished by the regulations at 108 CMR 2.02, because choosing to leave a position and become jobless as a result is an act one undertakes on his own. Termination, in contrast, is an act undertaken by another (the employer) that brings about unemployment. There was a letter of termination here, to be sure-issued by Mr. Gomez on May 11, 2009-but it was issued after Mr. Patterson had decided that the work environment at the Outreach Center was no longer tolerable and that he would quit his position to preserve his physical and mental health, and after he had implemented this decision by not reporting to work beginning on May 5, 2009.

The Outreach Center engaged in no conduct that transformed Mr. Patterson's otherwise voluntary decision to quit his position into an involuntary one. Mr. Patterson faced no imminent job loss or discipline when he decided on or implemented this course of conduct. No suspension or involuntary termination had followed Mr. Gomez's December 17, 2008 reprimand letter regarding workplace conflict with his co-workers (Finding 6), and none was pending on May 7, 2009 after Mr. Patterson had absented himself from work for two days. It took a third day of unexcused absence and lack of communication by Mr. Patterson to prompt Mr. Gomez's termination letter, but even after doing so, Mr. Gomez appeared open to a less drastic outcome if Mr. Patterson demonstrated an awareness that his job was on the line and that he cared to salvage it. (Finding 13.) In addition, the Center offered Mr. Patterson neither financial incentive nor encouragement to quit his position. Cf. Curtis v. Div. of Unemployment Assistance, 68 Mass. App. Ct. 516, 863 N.E.2d 71 (2007) (upholding the denial of unemployment compensation benefits for voluntarily leaving work, under M.G.L. c. 151A, § 25(e), where a former employee left his position in return for voluntary separation benefits packages without a reasonable belief that he would be laid off if he did not do so, and management generated no confusion about the likelihood of layoffs or the consequences of accepting or declining the separation benefits it was offering).


Disposition


I conclude that Mr. Patterson's need for M.G.L. c. 115 veterans' benefits was the result of voluntary unemployment supporting benefits denial pursuant to M.G.L. c. 115, § 5 and 108 CMR 3.06(1)(b). The decision of the Division of Veterans' Services sustaining the denial of Mr. Patterson's application for veterans' benefits is therefore affirmed. [fn. 5]

SO ORDERED.


Notice of Appeal Rights


This is a final agency decision. Pursuant to M.G.L. c. 115, § 2, further review of such decision may be had by any party upon application made to the Governor and Council within ten days after receipt of the decision. Whether or not an application for further review is made to the Governor and Council, this decision of the Division of Administrative Law Appeals, or the decision of the Governor and Council if an application for further review is made, is subject to judicial review in accordance with the provisions of M.G.L. c. 30A, § 14. Any such appeal must be instituted within thirty (30) days of receipt of such decision, and filed with the Superior Court Department of the Trial Court.


DIVISION OF ADMINISTRATIVE LAW APPEALS


Mark L. Silverstein
Administrative Magistrate


Dated: November 30, 2009


Footnotes

1/ 108 CMR 8.07 provides that a veterans' benefits applicant may appeal any action taken by a veterans' service officer (VSO) to the Secretary of DVS within 21 days of the date of the VSO's notice of action. Mr. Patterson's appeal to DVS was unquestionably filed within 21 days after the Springfield Department of Veterans' Services issued a Notice of Action in which it denied his veterans' benefits application.

2/ A party aggrieved by DVS's decision on a veterans' benefits appeal may appeal further by filing an appeal with DALA "within ten days of the receipt of the [DVS hearing officer's] decision." 108 CMR 8.07(3).

3/ Mr. Mahoney was on the line from his office in Springfield, Massachusetts. Mr. Patterson was on the line from his son's residence in Covington, Georgia, to which he had relocated temporarily when he was evicted from his rental apartment in Springfield.

4/ DVS requested this documentation so it could determine whether Mr. Patterson remained eligible for state veterans' benefits as a resident of the Commonwealth. 108 CMR 3.01(2), entitled "Homeless Applicant," provides that "[a]n applicant lacking a present abode shall be required to provide an affidavit stating his identity, his last place of residence, and his intention to establish an abode within the city or town in which he applies."

5/ / I do not determine whether Mr. Patterson remains eligible for M.G.L. c. 115 benefits as a resident of the Commonwealth (see above, at 4, n. 4). Although Mr. Patterson's eviction from his Springfield apartment (Exh. 17) and his travel to Georgia for an extended visit of unknown duration with his son's family (Patterson testimony) suggest an intent not to return to Massachusetts, it is not clear that he has abandoned his ties to the Commonwealth for residency purposes. Neither the Springfield Veterans' Service Department nor DVS has yet made this determination, and neither party requested that I make it or submitted evidence sufficient for me to do so.

Accordingly, this Decision is without prejudice to the authority of the Springfield Veterans' Department or DVS to determine whether Mr. Patterson meets residency requirements for M.G.L. c. 115 benefits eligibility if he files a new benefits application or if this Decision is vacated or modified.