Board of Review Decision 334-FHJR-58NK

Because the claimant met her burden to show that she was subject to sexual, unreasonable, and other harassment from her supervisor, she is eligible for benefits pursuant to G.L. c. 151A, § 25(e)(1), following her resignation.

Board of Review
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Issue ID: 334-FHJR-58NK

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 voluntarily left employment without good cause attributable to the employer or urgent, compelling, and necessitous reasons pursuant to G.L. c. 151A, § 25(e)(1). 

The claimant had filed a claim for unemployment benefits, effective July 7, 2024, which was denied in a determination issued by the agency on September 19, 2024. The claimant appealed to the DUA Hearings Department. Following a hearing on the merits attended by both parties, the review examiner affirmed the agency’s initial determination in a decision rendered on December 7, 2024. The claimant sought review by the Board, which denied the appeal, and the claimant appealed to the District Court pursuant to G.L. c. 151A, § 42.

On October 17, 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 that led to the claimant’s separation. Only the claimant 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 resigned after her leave of absence without good cause attributable to the employer or urgent, compelling, and necessitous reasons, 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 reverse 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. The claimant worked full-time for the employer, a game manufacturing company, beginning 2020 (present owner) to November 17, 2023. 
2. The claimant was hired in 2017 to work on the assembly line, receiving pay raises as she eventually became a line leader in 2021 earning $17.33 per hour, with no change in schedule. The claimant had the opportunity to work overtime as needed by the employer. 
3. In November of 2022, the claimant was promoted to the art department to work as a lead product coordinator assistant. The new position included a raise in her pay rate to $21.28 per hour and no change to her schedule of 7:00 a.m. - 3:30 p.m., Monday to Friday. 
4. On May 26, 2023, the claimant was offered, and accepted, the position of clerk in the shipping office. The claimant’s rate of pay stayed the same at $21.28 per hour with no change to her scheduled hours of 7:00 a.m. – 3:30 p.m., Monday to Friday. 
5. The claimant did not apply for any of her position changes, the employer offered each of the moves, and the claimant accepted the offers. 
6. The claimant had the ability to work overtime as a shipping clerk. Her pay reflected the overtime if she worked before 7:00 a.m. or after 3:30 p.m., or if the employer needed her to work on a Saturday to get orders out during a busy time. 
7. The claimant also had the ability to work shifts on the packing line on Saturdays for overtime pay. From July 2023 until September 2024, the claimant typically worked a four-hour Saturday overtime shift on the packing line, several times each month.
8. After a couple of months in the shipping department, the claimant began to feel like her supervisor was treating her poorly. The first month of training, the claimant worked out of the same office as her supervisor. The second month in the position, the claimant moved into her own office. Despite her moving, the shipping workers continued to put the paperwork that claimant processed on the supervisor’s desk. This frustrated the supervisor and she would regularly slam the paperwork onto the claimant’s desk. The claimant believed that this was because the supervisor was angry that she moved into her own office. 
9. In mid-July 2023, the claimant informed a coworker, [A], that was in the shipping office covering work for the supervisor, that her supervisor was yelling at her and calling her stupid and slamming paperwork on her desk. The coworker spoke with the supervisor about how she acted towards the claimant. 
10. In the end of July 2023, the claimant spoke the operations director regarding her supervisor treating her poorly, speaking harshly and rudely. The operations director spoke with the claimant’s supervisor, and, during the conversation, the supervisor informed the director that the claimant was making many mistakes and not retaining the information taught to her. The director told the supervisor to be positive and work with the claimant to develop her skills.
11. In the end of July 2023, the claimant’s supervisor apologized to the claimant for “barking” at her and hugged the claimant and kissed her cheek. The manager brushed her hand down the back of the claimant’s hair. The claimant told her supervisor that it wasn’t necessary to touch her hair. The claimant thought everything would be good from that point on. 
12. In the end of July 2023, the claimant received a call from a human resource representative and informed her that her coworker, [A], told the representative about the claimant’s issues with her manager. The representative asked if everything was going okay with her supervisor. The claimant told her that everything was good. 
13. In August of 2023, the claimant had an order with a packing slip count that did not match what the loading dock worker’s count was. The loading dock had 30 skids, and the claimant made 20 packing slips because the sales order she had only had 20 skids listed. The supervisor told the claimant that she needed to go out to the loading area and physically count the skids to confirm the number of packing slips she needs to have printed. The claimant informed the supervisor that there were 30 skids. The supervisor asked the claimant why she was questioning the dock employee’s count when he has been working there longer. She asked the claimant if she was being stupid. The claimant left the office and cried outside. The claimant then took the loading dock slips to the sales department and determined that sales had an incorrect count. The claimant was embarrassed by what happened and did not tell anyone. 
14. In August of 2023, the claimant had an order with a packing slip count that did not match what the loading dock worker’s count was. The supervisor told the claimant that she needed to go out to the loading area and physically count the skids to confirm. The supervisor came into the loading area and asked the claimant what she was still doing there. The claimant told her that she was still counting and not finished yet. The supervisor grabbed the claimant on the back of the claimant’s neck and led her back to the office area and pushed her into her chair. No other employees were present in the loading area or the office area. The claimant was embarrassed by what happened and did not tell anyone. 
15. Around September 2023, the claimant was in the shipping parking lot area getting a signature from a driver. The supervisor came outside and called out to them for the claimant to stop flirting with the driver and get back into the office. The claimant was extremely embarrassed by the supervisor’s comment. The claimant did not report the incident to anyone. 
16. On September 13, 2023, the claimant was in an accident, outside of work, and seen in the emergency department at a hospital. Subsequently, she was prescribed physical therapy three times per month for three- or four-months aftercare. 
17. On or about September 28, 2023, the claimant applied for Family Medical Leave (PFML) on an intermittent basis for physical therapy due to the accident. Intermittent leave was approved from September 13, 2023, to January 3, 2024. [Exhibit 2, pp. 40-43] Work Restrictions listed as: “Only on 9/13-9/14/23 she can do her regular job shipping clerk but cannot do floor work as overtime.”
18. On or about October 27, 2023, the claimant’s coworker, [A], was again covering for her supervisor. The claimant asked [A] how she thought the claimant was doing in her role. The coworker told the claimant that in her personal opinion (not as a company employee), she thought the claimant was not retaining information on the customer’s requirements and had to be told over and over again what needed to be done every day. 
19. At the beginning of November 2023, the claimant asked her supervisor if they could just start over and try to work things out. The supervisor responded that she would think about it because she would need to fix the bitch inside of her to be better to [the claimant]. 
20. The first week in November 2023, the claimant asked her coworker, [A], if she believed that her work was progressing. [A] was reluctant to answer and eventually told the claimant that she did not respond to emails, she needed to be reminded to do daily tasks and needed her work double checked to make certain it was being done and done correctly. 
21. On November 14, 2023, the claimant was out of work at a medical appointment. The claimant provided the employer with a medical note that she was seen that day, and the note stated she could return to regular work duties the following day, November 15, 2023. The letter did not include any restrictions on her return. 
22. On November 16, 2023, the claimant sent an email to HR in answer to a request for updated medical documentation. The claimant stated she received a diagnosis of fibromyalgia at her last doctor’s appointment. No medical documentation was provided to the employer regarding work restrictions for this diagnosis. [The claimant testified that she did not produce the email or diagnosis in the initial hearing because no one asked her about it.] 
23. On November 17, 2023, the director of operations met with the claimant. No one else was present at the meeting. He told the claimant that her work in the shipping department was not working out. He told her that she would be moved back to working on the warehouse floor starting on November 20, 2023. The claimant asked if her pay would be cut back down and the director told her that he did not know if her pay would be affected. The claimant told the director that she could not work on the floor, because she was on FMLA and was on restricted duty. The director told the claimant that he was not aware of her restricted duty and that he would speak with human resources regarding any physical limitations she has. The director told the claimant that she could leave for the remainder of the day, and she would be paid. 
24. On November 20, 2023, the claimant called out sick. The director, HR and claimant did not meet, and the claimant’s position remained as shipping clerk. No transfer occurred. 
25. The claimant remained out of work November 21-24, 2023. The HR manager requested that the claimant file an updated FML application if she would be out. 
26. On December 8, 2023, the claimant’s healthcare provider applied to change the claimant’s approved intermittent PFML to continuous leave for the same timeframe as already approved, with the expected end date of January 19, 2024. The change to continuous leave was due to the large number of medical appointments for the claimant’s injuries from the September 2023 accident and subsequent fibromyalgia diagnosis in November 2023, and therapy appointments that were scheduled for the claimant. [Exhibit 2, pp. 45-48]. The continuous leave was approved as of December 12, 2023. 
27. On December 11, 2023, the claimant submitted a complaint to the Massachusetts Commission Against Discrimination. The complaint is still active as of the date of the remand hearing. The claimant has not received a date for an investigation conference. 
28. As of March 14, 2024, the claimant began psychiatric care. The claimant was diagnosed with depression, post-traumatic stress disorder, and is receiving services and medication treatment. [Exhibit 8] 
29. The claimant believes that the symptoms started in November of 2023. No medical provider advised the claimant to stop working for the employer due to mental health issues. 
30. On February 23, 2024, the claimant provided the employer with a Fitness for Duty Recommendations letter from her healthcare provider, stating that she is unable to return to work until June 12, 2024. No ADA accommodations needs were listed. No temporary disability accommodation needs were listed. 
31. On March 8, 2024, the Department of Family Medical Leave approved the claimant’s application for a continuous leave of absence from March 4, 2024, to April 4, 2024. 
32. On April 2, 2024, the claimant sent an email to the Human Resource manager (HR) stating that her PFML was expiring on April 4, 2024, and she asked if the company would continue to pay her until her personal time/vacation time was exhausted. 
33. On April 2, 2024, the [sic] HR sent the claimant an email outlining the weeks that would apply to sick time and vacation. The claimant was informed that her available paid time would be exhausted as of May 2, 2024. 
34. On May 6, 2024, the claimant sent an email letter to HR stating that she was resigning as of May 10, 2024. The reason stated in the letter was that it was best for her to move on. Nothing specific prompted the claimant to resign, but she decided it would be best for her mental health and anxiety to not put herself back into the same situation. 
35. Prior to resigning, the claimant never discussed with HR any specific return to work date or requested accommodations or transfer to another position. The claimant assumed that she was reassigned to the packing line as of November 20, 2023, and because she performed that work before and knew what the job entailed, she believed that she was physically unable to perform that work. The claimant stated in her November 20, 2023, email to HR that “Matt only has the packing line for me to work on…” and the HR manager responded that the claimant needed to call her. The HR manager did not speak with the claimant until November 27, 2023. 
36. No medical documentation was submitted by the claimant to establish that she was medically restricted from any work duties on dates other than September 13, 2023, and September 14, 2023.

Credibility Assessment:

The claimant testified at the remand hearing that she was informed on November 17, 2023, that she was reassigned to the packing line as of November 20, 2023. The claimant testified that she asked if her pay would reduce and the director stated that it would be $17.33 per hour. The claimant further testified that she told the manager she was on restricted duty, which would not allow for her to work on the packing line, and she asked if there were any other positions available. She testified that the director told her that there were no other positions available there or in the Appleton facility and he would speak with HR. The claimant’s testimony is not credible. It is more reasonable that the director of operations needs to determine rate of pay and discuss the issue of possible accommodation upon being told by the claimant that she has medical restrictions. Furthermore, the hourly rate the claimant said she was quoted was exactly her hourly rate, to the penny, from 2021. It is unlikely that the rate of pay did not change at all in two years.

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 conclusion is free from error of law. After such review, the Board adopts the review examiner’s consolidated findings of fact and credibility assessment except as follows. We set aside Consolidated Finding # 36 because it is inconsistent with Consolidated Finding # 30, which is supported by the claimant’s documentary submissions. In adopting the remaining findings, we deem 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. However, as discussed more fully below, we now reject the review examiner’s legal conclusion that the claimant is ineligible for benefits. 

The findings show that the claimant chose to resign rather than return to work after her leave due in part to a hostile work environment created by her manager’s harassment and the effect this issue had on her mental health. See Consolidated Findings 8–10, 13-15, 28–29, and 34. Thus, her eligibility for benefits is governed by the following statutory provisions under G.L. c. 151A, § 25(e), which state, in relevant part: 

[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 (1) voluntarily unless the employee establishes by substantial and credible evidence that he had good cause for leaving attributable to the employing unit or its agent. . . . 

Because Consolidated Finding 11 suggests that the claimant’s supervisor engaged in inappropriate behavior of a sexual nature, we also consider the sixth paragraph of G.L. c. 151A, § 25(e), which provides as follows:

An individual shall not be disqualified, under the provisions of this subsection, from receiving benefits if it is established to the satisfaction of the commissioner that the reason for leaving work and that such individual became separated from employment due to sexual, racial or other unreasonable harassment where the employer, its supervisory personnel or agents knew or should have known of such harassment. 

For the purposes of this paragraph, the term “sexual harassment” shall mean sexual advances, . . . and other verbal or physical conduct of a sexual nature when . . .(c) such advances, . . . or conduct have the purpose of effect of creating an intimidating, hostile, humiliating or sexually offensive work environment. . . . 

The DUA has promulgated regulations, which clarify these statutory provisions. Specifically, 430 CMR 4.04(5)(a), defines sexual harassment, in relevant part, as follows: 

(2) Sexual harassment-sexual advances, requests for sexual favors, and other physical conduct of a sexual nature when . . . 

(c) such advances, requests or conduct have the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment. 

The regulation at 430 CMR 4.04(5) further provides, in relevant part, as follows: 

(b) Sexual, racial or other unreasonable harassment may result from conduct by the employer or the employer’s agents, supervisory employees, co-employees or non-employees. Such conduct may occur in or off the worksite and on or off company time. . . . 

(c) 1. A claimant shall not be disqualified from receiving benefits under M.G.L. c. 151A, § 25(e)(1) for leaving work voluntarily without good cause attributable to the employing unit or its agent if he or she establishes to the satisfaction of the Commissioner that his or her reason for leaving work and separation from employment is due to: 

a. sexual, racial or other unreasonable harassment by an employer, its agents or supervisory employees and the employer, its agents or supervisory employees knew or should have known of such harassment … 

2. For purposes of determining a claimant’s eligibility for benefits under 430 CMR 4.04([5])(c)1a., an employer is deemed to have knowledge of sexual, racial or other unreasonable harassment committed by its agents and supervisory employees in connection with the employment relationship regardless of whether the employer had actual knowledge of these acts.

(d) In determining whether a claimant’s reasons for leaving work is due to harassment, the Division will look at the totality of the factual circumstances resulting in the claimant’s separation from employment, such as the nature of the alleged harassment and the context in which the alleged harassing incidents occurred 

3. In all cases involving allegations of harassment (other than allegations of sexual, racial or other unreasonable harassment as defined at 430 CMR 4.04(7)(a)) by an employer, its agents or supervisory employees, a claimant shall not be disqualified from receiving benefits under M.G.L. c. 151A, § 25(e)(1) if he or she establishes to the satisfaction of the Commissioner that,

a. the employer, its agents or supervisory employees knew or should have known of the harassment and the employer failed to take immediate and appropriate corrective action; and 

b. he or she took reasonable steps to preserve his or her employment, which may include notifying the employer of the harassment, unless the circumstances indicate that such efforts would be futile or result in retaliation.

The express language of these provisions places the burden of proof upon the claimant.

Although the claimant testified that she experienced mental health challenges prior to her resignation, she contended that these issues arose from her employment. Specifically, the claimant alleged that her mental health was adversely affected by a hostile work environment created, in part, by her immediate supervisor’s harassment. See Consolidated Findings 8–10, 13–15, 28–29, and 34. When a claimant contends that the separation was for good cause attributable to the employer, the focus is on the employer’s conduct. Conlon v. Dir. of Division of Employment Security, 382 Mass. 19, 23 (1980).

Consolidated Finding 11 states that, in the end of July 2023, the claimant’s supervisor apologized to the claimant for “barking” at her, hugged the claimant, kissed her cheek, and brushed her hand down the back of the claimant’s hair. Although the review examiner found that this incident occurred once in July, 2023, it is the claimant’s undisputed testimony that this behavior occurred on a more frequent basis. Specifically, the claimant testified that, after every time she reported the supervisor’s behavior to the director of operations, “she [supervisor] would come and start saying how sorry she was for barking at me, and hugging me, giving me kiss on my cheek and playing with my hair.” Because the review examiner also found that the claimant told her supervisor on at least one occasion that it was not necessary to touch her hair, and the claimant subsequently filed a complaint with MCAD against the employer, we can infer that the supervisor’s conduct was not welcomed by the claimant. See Consolidated Findings 11 and 27; see also Exhibit 11. We believe that the supervisor’s behavior towards the claimant can reasonably be viewed as sexually harassing conduct, as defined by 430 CMR 4.04(5)(a)(2)(c) and 4.04(5)(b).

On one occasion, the claimant was in the shipping parking lot area getting a signature from a driver when her supervisor came outside and called out to them for the claimant to stop flirting with the driver and get back into the office, which caused the claimant to be extremely embarrassed. See Consolidated Finding 15. For reasons that are unclear from this record, the supervisor accused the claimant of engaging in flirting, a form of sexual conduct, with the driver. Because the comment created a humiliating work environment for the claimant, it meets the definition of 430 CMR 4.04 (5)(a)(2)(c). 

Because we conclude that the claimant quit in part due to a sexually offensive work environment, she is not required to show reasonable efforts to preserve her job before quitting. See 430 CMR 4.04(5)(c); see also Tri-County Youth Programs, Inc. v. Acting Deputy Dir. of Division of Employment and Training, 54 Mass. App. Ct. 405, 410–411 (2002) (“In cases involving allegations of sexual harassment, . . . claimant need not show that she took all or even ‘reasonable steps’ to preserve her employment.”). All she needs to show is that “the employer or its supervisory personnel knew or should have known of such harassment.” G.L. c. 151A, § 25(e). Inasmuch as all instances involved the claimant’s immediate supervisor, and the claimant reported the troubling, ongoing dynamic with her supervisor to the director of operations and at least one other supervisory employee, it is evident that the employer knew or should have known of the harassment. See Consolidated Findings 8–10, 12–15.

Apart from creating a sexually offensive work environment, the claimant established that her immediate supervisor created a toxic work environment in other ways. For instance, after only a couple of months in the shipping department, the supervisor would regularly slam paperwork onto the claimant’s desk, yell at her, and call her stupid. See Consolidated Findings 8-10 and 13. In what could be considered one of most egregious examples of unreasonable workplace conduct, the supervisor grabbed the claimant by the back of her neck, led her to the office area and pushed her into her chair. See Consolidated Finding 4. 

If the supervisor’s conduct constituted harassment within the meaning of 430 CMR 4.04(5)(c)3., the claimant may not be disqualified pursuant to G.L. c. 151A, § 25(e)(1), provided that the employer or supervisory employees knew or should have known of the behavior, and that the employer failed to take immediate and appropriate corrective action. All that is necessary is that the claimant must have taken reasonable steps to preserve her job, which may include notifying the employer of the behavior, unless the circumstances indicated that doing so would be futile or result in retaliation. See 430 CMR 4.04(5)(c)3.a–b.

The regulations direct us to look at the totality of circumstances, such as the nature of the alleged harassment and the context in which the incidents occurred to determine whether such conduct constitutes harassment. See 430 CMR 4.04(5)(d). Here, the findings show that the supervisor had a history of engaging in negative behavior toward the claimant during her tenure in the shipping department. 

It is also evident from the record that the employer was aware of the dynamic, as a supervisory employee and the director of operations had spoken with the claimant’s supervisor separately about how she acted towards the claimant, and a human resource representative had reached out to the claimant and asked her if everything was going okay with her supervisor. See Consolidated Findings 9–10 and 12. 

Consolidated Finding 35 provides that, after going on leave and prior to resigning, the claimant could have sought a transfer to another position. While this is true, we think that the claimant took reasonable steps to stop the harassment when she notified another supervisor and the director of operations about her supervisor’s behavior and subsequently took a leave of absence prior to her resignation. During the hearing, the claimant explained that the issue was not about her going to work on the packing line, but “that meant that I had to stay in [Location], and [supervisor] was there.” As such, we think the claimant could reasonably believe that the supervisor’s behavior would continue, and further efforts to preserve her employment would have been futile.

We, therefore, conclude as a matter of law that the claimant has met her burden to demonstrate that she resigned due to good cause attributable to the employer, including sexual and non-sexual harassment, within the meaning of 430 CMR 4.04(5)(c)1a. and 430 CMR 4.04(5)(c)3, and she may not be disqualified under G.L. c. 151A, § 25(e)(1).

The review examiner’s decision is reversed. The claimant is entitled to receive benefits for the week beginning July 7, 2024, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision – June 18, 2026

1. This portion of the claimant’s testimony is part of the unchallenged evidence introduced at the remand 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); and Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005).
2. Exhibit 11 is the MCAD complaint filed by the claimant against the employer on December 11, 2023. The claimant alleged the employer discriminated against her on the basis of disability, retaliation and sexual harassment. 
3. This portion of the claimant’s testimony is also part of the unchallenged evidence in the record. 

Martha M. Wishart, Esq.
Chair

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)

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