Board of Review Decision 334-FHJ6-M434

The claimant was discharged for sending threatening and harassing messages to a co-worker, even though she understood that the employer expected her not to threaten or harass other employees. Held the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest and is ineligible for benefits pursuant to G.L. c. 151A, § 25(e)(2).

Board of Review
100 Cambridge Street, Suite 400
Boston, MA 02114
Phone: [phone]
Fax: [phone]

Issue ID: 334-FHJ6-M434

Board of Review Decision

Introduction and Procedural History of this Appeal 

The claimant appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to deny unemployment benefits. Benefits were denied on the ground that the claimant was discharged for deliberate misconduct in wilful disregard of the employing unit’s interest and, thus, was disqualified pursuant to G.L. c. 151A, § 25(e)(2). 

The claimant had filed a claim for unemployment benefits, effective February 9, 2025, which was approved in a determination issued by the agency on May 1, 2025. The employer appealed to the DUA Hearings Department. Following a hearing on the merits, the review examiner reversed the agency’s initial determination in a decision rendered on July 25, 2025. The claimant sought review by the Board, which affirmed, and the claimant appealed to the District Court pursuant to G.L. c. 151A, § 42.

On December 15, 2025, the District Court ordered the Board to obtain further evidence. Consistent with this order, we remanded the case to the review examiner to take additional evidence concerning the circumstances surrounding the claimant’s separation. Both parties attended the remand hearing. Thereafter, the review examiner issued her consolidated findings of fact.

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant was discharged for deliberate misconduct in wilful disregard of the employer’s interest because she sent threatening and harassing messages to a co-worker, is supported by substantial and credible evidence and is free from error of law.

After reviewing the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, the claimant’s appeal, the District Court’s Order, and the consolidated findings of fact, we affirm the review examiner’s decision.

Findings of Fact

The review examiner’s consolidated findings of fact and credibility assessment, which were issued following the District Court remand, are set forth below in their entirety:

1. Prior to filing for benefits, the claimant worked as a head technician for the employer, a veterinary clinic. 
2. The claimant began working for the employer in the fall of 2019. She worked a full-time schedule, 8:30 a.m. – 5:30 p.m. Monday through Friday and one Saturday each month and earned $25.00 per hour.
3. The claimant’s supervisor was the employer’s owner (Owner). 
4. The employer has a Standards of Conduct policy prohibiting “Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors” (Policy). 
5. The purpose of the Policy is to promote a safe and collaborative workplace. 
6. The Policy is posted at the employer’s premises. 
7. Violations of the Policy “may result in disciplinary action, up to and including termination of employment”. 
8. The employer has an expectation that coworkers do not threaten one another.
9. The purpose of the employer’s expectation is to foster a safe work environment. 
10. The claimant knew of the employer’s expectation as a matter of common sense. 
11. During her employment, the claimant worked for the employer as a practice manager until on 11/17/2023, the employer demoted the claimant from the position of practice manager to head technician due to concerns regarding the claimant’s job performance and attendance. 
12. Throughout her employment, the claimant had concerns regarding the Owner’s behavior. 
13. In 2023, the employer hired a desk and scheduling manager (Manager). 
14. On several occasions, the claimant spoke to the Manager regarding her concerns about the Owner’s behavior. 
15. On 6/19/2024, the employer gave the claimant a written warning reviewing the claimant’s assigned tasks. 
16. In August 2024, three coworkers met with the Owner and the Manager (now the practice manager) and reported concerns regarding the claimant, including poor job performance and attendance issues. 
17. On 8/29/2024, the Owner and Manager met with the claimant regarding her coworkers’ concerns and advised the claimant that the employer would be reducing her rate of pay. The Owner gave the claimant a written warning. 
18. On 8/29/2024, the claimant messaged two coworkers and asked in relevant part, “So you didn’t saying about how “I don’t pull my own weight when working”. 
19. On 8/29/2024, one of the coworkers, a minor, contacted the Manager and reported that the claimant threatened her over social media in retaliation for the coworker bringing her concerns to the attention of the employer. The coworker provided screenshots of the claimant’s comments to the Manager. 
20. On 8/30/2024, the Manager reported the claimant’s messages from 8/29/2024 to the Owner. 
21. On 8/30/2024, the Owner and the Manager met with the claimant. The Owner raised her voice at the claimant. The claimant experienced a panic attack. 
22. On 8/30/2024, the claimant’s mother picked up the claimant from work.
23. The claimant last performed work for the employer on 8/30/2024. 
24. On 8/30/2024, the claimant messaged the Manager that she would not be coming to work the following day. The Manager replied, “Get some rest” and “I had a talk with (the Owner) after appointments. I think everything can be resolved” and “She told me before I even said anything that she feels bad”. 
25. On 8/30/2024, the Owner messaged the claimant stating, “I apologize for raising my voice and letting my emotions get the best of me today”. 
26. The claimant called out on 8/31/2024. The Manager messaged, “Take today off and hopefully I’ll see you Tuesday”. 
27. On 9/2/2024, the claimant messaged the Manager, in relevant part, “I will be taking a personal day tomorrow”. The Manager replied “Ok. There’s absolutely nothing wrong with that. Keep me posted”. 
28. On 9/3/2024, the claimant messaged the Manager that she would be out the following day and the Manager replied, “Ok”. 
29. On or about 9/4/2024, the claimant sought medical consultation regarding her panic attack. The medical provider advised rest and prescribed medication. 
30. On 9/4/2024, the Manager messaged the claimant, in relevant part, “I just wanted to let you know that we are giving you tomorrow and Friday off”. The claimant responded, “I will be using my pto for this rest of this week, then I will be on medical leave”. 
31. On or about 9/4/2024, the claimant filed a claim for medical leave under the Paid Family and Medical Leave Act (PFML). 
32. On 9/6/2024, the claimant received a termination of employment letter from the Owner stating that the claimant threatened a coworker in violation of the employer’s Policy, effective 8/30/2024. 
33. The employer discharged the claimant for messaging her coworker in violation of the Policy. 
34. On 5/1/2025, the Department of Unemployment Assistance (DUA) issued a Notice of Approval to the employer. The employer appealed that determination.

[Credibility] Assessment: 

The employer’s witnesses participated in the first hearing and the first session of the first remand hearing. The employer’s witnesses did not attend the continued session of the first remand hearing. The claimant was not present for the first hearing. She participated in both sessions of the first remand hearing along with two witnesses. The employer’s witnesses, the claimant, and a new witness for the claimant participated in the second remand hearing. 

At the second remand hearing, the employer’s owner argued that the employer determined that the claimant committed payroll fraud, “embezzeled thousands of dollars”, harassed younger employees “trying to get them to lie to us on her behalf”, and “walked off the job”. However, the employer’s owner affirmed that she decided to discharge the claimant for sending “torturing and harassing” messages to a coworker, corroborating her prior testimony. The employer’s witnesses declined to articulate in what way the claimant’s message to the coworker was harassment or torture. The employer’s office manager added that the claimant’s “seventeen-year-old” coworker contacted the witness and was “scared. She called me crying and sobbing… and she was afraid to come to work”, requiring the employer to act because the employee “felt threatened”, resulting in a meeting with the claimant on 8/30/2024. The testimony shows that on 8/30/2024, the claimant left the employer’s premises after the employer’s owner “raised (her) voice” causing the claimant to have a “panic attack”. Query when the claimant “walked off the job”. 

The employer’s office manager attested that on 8/30/2024, during the meeting with the claimant, the employer’s owner stated “What you did is unacceptable. You’re fired. Get your things and don’t come back”, which is inconsistent with both the prior testimony and the evidence on the record that shows that following the meeting, both the employer’s owner and office manager contacted the claimant and mentioned continued employment. 

Moreover, the employer’s office manager added that on 8/30/2024, at the end of the workday and after the claimant left the employer’s premises for the day, the employer ran a report on the employer’s payroll system that returned a result one to two weeks later of discrepancies with the claimant’s payroll in the amount of between seven and eight thousand dollars. As the employer’s witnesses concurred that the employer had decided to discharge the claimant prior to the payroll discrepancies coming to light, it is determined that this matter is not related to the separation.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the consolidated findings are supported by substantial and credible evidence; and (2) whether the review examiner’s ultimate conclusion is free from error of law. Upon such review, the Board adopts the review examiner’s consolidated findings of fact and deems them to be supported by substantial and credible evidence. We further believe that the review examiner’s credibility assessment is reasonable in relation to the evidence presented. As discussed more fully below, we believe that the review examiner’s consolidated findings of fact support the conclusion that the claimant is not eligible for benefits.

Because the claimant was discharged from her employment, her eligibility for benefits is governed by G.L. c. 151A, § 25(e)(2), which provides, in pertinent part, as follows: 

[No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter] . . . (e) For the period of unemployment next ensuing . . . after the individual has left work . . . (2) by discharge shown to the satisfaction of the commissioner by substantial and credible evidence to be attributable to deliberate misconduct in wilful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee’s incompetence . . . . 

“[T]he grounds for disqualification in § 25(e)(2) are considered to be exceptions or defenses to an eligible employee’s right to benefits, and the burdens of production and persuasion rest with the employer.” Still v. Comm’r of Department of Employment and Training, 423 Mass. 805, 809 (1996) (citations omitted). 

The employer maintains a written Standards of Conduct policy prohibiting employees from threatening, intimidating, or otherwise interfering with the job performance of fellow employees or visitors. Consolidated Finding 4. However, it retains discretion over how to discipline employees who violate that policy. Consolidated Finding 7. As the employer did not provide evidence showing that it discharged all other employees who had engaged in threatening, intimidating, or disruptive behavior, it has not met its burden to show a knowing violation of a reasonable and uniformly enforced policy. 

We next consider whether the employer has met its burden to show the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. To meet its burden under this provision, the employer must first show that the claimant engaged in the misconduct for which she was discharged. 

Although the employer stated multiple concerns about the claimant’s behavior while she was employed as a head technician, the review examiner found that the employer made the decision to discharge the claimant because she sent threatening and harassing messages to a co-worker in violation of the employer’s Standards of Conduct. See Consolidated Findings 4 and 32. Such assessments are within the scope of the fact finder’s role, and, unless they are unreasonable in relation to the evidence presented, they will not be disturbed on appeal. SeeSchool Committee of Brockton v. Massachusetts Commission Against Discrimination, 423 Mass. 7, 15 (1996). As the employer’s witnesses both confirmed that the employer had made the decision to discharge the claimant prior to discovering other issues with the claimant’s behavior in the workplace, we believe that the review examiner’s assessment is reasonable in relation to the evidence presented.

In this case, there was no dispute that the claimant messaged a co-worker on social media, accusing the co-worker of complaining about the claimant’s behavior to the employer’s owner and practice manager. Consolidated Findings 17–19. The screenshots of the conversation were admitted into evidence as Remand Exhibit 6. They show that the claimant told the co-worker “I know the things you said about me, after I’ve had ur [sic] back several times . . . .” and when the co-worker denied ever making such comments, the claimant reiterated that she heard the co-worker had said “multiple times that I don’t pull my own weight”, including in front of the employer’s owner. The claimant also asked the co-worker to disclose what other employees may have made comments about the claimant’s work performance. As the claimant made these accusations the day that she learned her pay was being reduced due to concerns over her performance, the language the claimant used in these messages demonstrates a level of frustration with the co-worker that goes beyond mere curious inquiry. 

Further, because the claimant’s role as head technician involved her training the co-worker on how to perform her job duties, the record indicates that the claimant had some level of supervisory authority over the co-worker. Viewed in the context of this power dynamic, the claimant’s inquiry into what the co-worker other employees may have said about her work performance to the office manager and owner was unprofessional and reasonably made the co-worker uncomfortable about returning to the work environment. See Consolidated Finding 18.

The claimant’s actions in contacting the co-worker were also self-evidently deliberate, as she had to make the decision to use that social media platform to draft and send each message. Therefore, the record confirms that the claimant engaged in the misconduct for which she was discharged. 

Inasmuch as the purpose of the employer’s policy is to foster a safe and productive work environment, its expectations regarding employee behavior are facially reasonable. Consolidated Finding 9. We further believe that this expectation was of heightened importance where, as here, the employer retained the services of a minor as part of a high school program. See Consolidated Finding 19.

However, the Supreme Judicial Court (SJC) has stated, “[deliberate] misconduct alone is not enough. Such misconduct must also be in ‘wilful disregard’ of the employer’s interest. In order to determine whether an employee’s actions were in wilful disregard of the employer’s interest, the proper factual inquiry is to ascertain the employee’s state of mind at the time of the behavior.” Grise v. Dir. of Division of Employment Security, 393 Mass. 271, 275 (1984). To evaluate the claimant’s state of mind, we 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.” Garfield v. Dir. of Division of Employment Security, 377 Mass. 94, 97 (1979). 

Where the claimant retained some level of supervisory authority, her decision to send unsolicited and accusatory messages about workplace behavior to a minor co-worker via social is self-evidently threatening and disruptive in nature. As the claimant testified that she understood that the employer expected its employees not to harass or threaten one another, we can reasonably infer that she was aware her decision to send such messages to the co-worker on August 29, 2025, was contrary to the employer’s expectations. Consolidated Findings 8 and 10. 

Finally, we consider whether the claimant has presented mitigating circumstances for her misconduct. Mitigating circumstances include factors that cause the misconduct and over which a claimant may have little or no control. See Shepherd v. Dir. of Division of Employment Security, 399 Mass. 737, 740 (1987).

Although the claimant had raised concerns about the owner’s behavior prior to August 29, 2024, there was no evidence that the owner’s behavior caused the claimant to message the co-worker on social media on that night. See Consolidated Finding 12. Further, while the owner had reacted by yelling at the claimant on August 30, 2024, this occurred after the claimant sent the messages to the co-worker. See Consolidated Findings 18 and 20. In the absence of any other evidence suggesting circumstances beyond the claimant’s control which caused her to engage with the co-worker via social media in such a manner on August 29, 2024, and we see none, she has not shown mitigating circumstances for her actions. 

We, therefore, conclude as a matter of law that the claimant’s discharge was attributable to deliberate misconduct in wilful disregard of the employer’s interest within the meaning of G.L. c. 151A, § 25(e)(2). 

The review examiner’s decision is affirmed. The claimant is denied benefits for the week ending February 15, 2025, and for subsequent weeks, until such time as she has had at least eight weeks of work and has earned an amount equivalent to or in excess of eight times her weekly benefit amount.

Boston, Massachusetts                                              Date of Decision – May 12, 2026

1. Remand Exhibit 6, while not explicitly incorporated into the review examiner’s findings, is part of the unchallenged evidence introduced at the hearing and placed in the record, and it is thus properly referred to in our decision today. See Bleich v. Maimonides School, 447 Mass. 38, 40 (2006); Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005).
2. The claimant’s testimony in this regard is also part of the unchallenged evidence introduced at the hearing and placed in the record.
3. The employer’s uncontested testimony in this regard is part of the unchallenged evidence introduced at the hearing as well.

Charlene A Stawicki, Esquire
Member

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court
(See Section 42, Chapter 151A, General Laws, Enclosed)

The last day to appeal this decision to a Massachusetts District Court is thirty days from the mail date on the first page of this decision. If that thirtieth day falls on a Saturday, Sunday, or legal holiday, the last day to appeal this decision is the business day next following the thirtieth day.

Visit this page to locate the nearest Massachusetts District Court.

Please be advised that fees for services rendered by an attorney or agent to a claimant in connection with an appeal to the Board of Review are not payable unless submitted to the Board of Review for approval, under G.L. c. 151A, § 37.

LSW/rh