Board of Review Decision 334-FHKV-NKFD

Held that the claimant resigned under the reasonable belief that her discharge was imminent for ongoing attendance infractions, including timecard fraud. Further held that the claimant’s discharge would have been for deliberate misconduct in wilful disregard of the employer’s interest. She is ineligible for benefits pursuant to G.L. c. 151A, § 25(e)(1).

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Issue ID: 334-FHKV-NKFD

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 February 18, 2024, which was denied in a determination issued by the agency on March 30, 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 July 3, 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 June 11, 2025, the District Court allowed DUA’s Motion for Reconsideration and Remand and ordered the Board to obtain further evidence. Consistent with this Order, we remanded the case to the review examiner to take additional evidence regarding the claimant’s separation from employment. Both parties attended the remand hearing. Thereafter, the review examiner issued his consolidated findings of fact.

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant quit when she refused to attend a meeting scheduled by the employer and had not established a good cause reason for separating from her employment, 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. The employer is a property management company. The claimant worked as a full-time assistant property manager for the employer. The claimant worked for the employer from 8/16/2023 to 2/14/2024. 
2. The employer’s property manager (Supervisor 1) supervised the claimant. 
3. The employer has an office manager (Office Manager 1). 
4. The employer assigned the claimant to start work at 8:30 a.m. The employer never changed this start time. Neither Supervisor 1 nor any other authority ever gave permission to the claimant to start work at 9:00 a.m. 
5. The employer expected the claimant to work her scheduled shifts. 
6. The employer contracts with a payroll vendor (Vendor 1). Vendor 1 has an electronic time records system (System 1). The employer has kiosks in its workplace for employees to access System 1. The employer expected the claimant to use the kiosks to record her work start times and end times. The employer expected the claimant to enter her time herself. The employer assigned a three-digit passcode to the claimant. This passcode allowed the claimant to access System 1 to record her time. System 1 was also accessible via a cellular telephone application. The employer allowed the claimant to use this application to record her time. The claimant knew how to use System 1 when she worked for the employer. 
7. The employer did not allow the claimant to falsify her reported work start times and work end times. 
8. The employer has an employee handbook. The handbook features a policy titled “302 Timekeeping.” The policy reads, in part, “Accurately recording time worked is the responsibility of each employee.” The policy reads, in part, “Altering, falsifying, tampering with time records, or recording time on another employee’s time record will result in corrective action, up to and including termination of employment.” The employer is not obligated to follow, and does not follow, a prescribed discipline scheme. 
9. The employer gave a copy of its employee handbook to the claimant. The claimant signed an acknowledgement of the handbook on 8/16/2023. The claimant was aware of the employer’s timekeeping policy, because she reviewed the employee handbook. 
10. The claimant never asked the employer any questions about its timekeeping policy or timekeeping procedures. The claimant never gave any indication to the employer that she did not understand its timekeeping policies and procedures. 
11. The claimant did not comply with her assigned 8:30 a.m. work start time when she worked for the employer. The claimant started work at 9:00 a.m. or between 8:30 a.m. and 9:00 a.m. 
12. Supervisor 1 entered the claimant’s work start times and end times via System 1 in the period from August 2023 through January 2024. Supervisor 1 entered the claimant’s work start time and end times for the majority of the days in this period. The claimant reported false start times and end times to Supervisor 1, and Supervisor 1 then entered them into System 1. 
13. In August 2023, Office Manager 1 reviewed time records and discovered that the claimant did not punch herself in and out from [sic] work. Office Manager 1 told the claimant and Supervisor 1 that the claimant had to punch in and out and that she had to do this herself. Office Manager 1 sent System 1 login information to the claimant. 
14. Office Manager 1 sent an email to Supervisor 1 on 8/23/2023 (Email A1). The email reads, “Please review your payroll time sheets, there are no hours posted for [the claimant] last week.” 
15. Supervisor 1 responded to Email A1 on 8/23/2023 (Email A2). The email reads, “I asked [the claimant] if she had a training with you on [System 1], and she stated she hadn’t. Can you please assist with that and schedule with her to train her on [System 1] and any additional new hiring training/orientation that you consider relevant to that process that she may need? I appreciate any help you can provide.” 
16. Office Manager 1 sent an email to the claimant on 8/23/2023 (Email B1). The email reads, “Below is the information you will need to access your [System 1] account and to punch in/out. The temporary password is time sensitive, so please set up your account within the hour. If not, I will need to send a password reset email.” The email featured a link for System 1. 
17. The claimant responded to Email B1 on 8/29/2023 (Email B2). The email reads, “Can you please resend? I was doing some updates and notes and didn’t get to the email in time.” Office Manager 1 then sent the requested information to the claimant. 
18. Office Manager 1 sent an email to Supervisor 1 on 8/29/2023 (Email C1). Email C1 reads, “I emailed [the claimant] her login information for [System 1]. She will need to get that set up, she can call me if she needs help. You still need to add her hours since she started to her timesheet.” 
19. Supervisor 1 responded to Email C1 on 8/29/2023 (Email C2). Email C2 reads, “Great, I’ll have her hours entered in [System 1] on her behalf shortly.” 
20. The employer’s regional vice president (Vice President 1) sent an email to Office Manager 1 on 11/29/2023 (Email D1). The email reads, “Can you give me access to [A] in [System 1]? I am trying to see [the claimant’s] punches…I am not sure when she is working and want to check up on that.” 
21. Office Manager 1 responded to Email D1 on 12/1/2023 (Email D2). Email D2 reads, “She doesn’t even have any punches, looks like [Supervisor 1] has been adding her punches everyday [sic]. Why is she doing this if her staff have access to punch on their own? She cannot do this any longer, everyone needs to punch in/out for themselves.” 
22.  Vice President 1 responded to Email D2 on 12/01/2023 (Email D3). Email D3 reads, “Agreed! Exactly why I wanted access so I can check. Can you do me a favor….? Can you send an email to [the claimant] and copy both me and [Supervisor 1] and tell her she MUST punch in and out EVERY day?” 
23. Office Manager 1 sent an email to the claimant on 12/1/2023 (Email E1). Email E1 reads, “I wanted to make you aware that I have noticed that you do not have any in/out punches on your timesheet for the past two weeks. I can also see that [Supervisor 1] has added your punches to your timesheet each day. You need to punch in/out on your own each day. If the tablet at the office is not operable, then you must use your phone to punch each day and for lunches as well. This is your responsibility as an employee. [Supervisor 1] can enter any missing punches on occasion, but she is not to enter your time for each day. Please let me know if you have any questions.” 
24. The claimant responded to Email E1 on 12/4/2023 (Email E2). Email E2 reads, “Will do, thank you.” 
25. The claimant did not start work at 8:30 a.m. after the employer sent Email E1 to her. The claimant started work at 9:00 a.m. or between 8:30 a.m. and 9:00 a.m. The claimant did not have permission from the employer to start work later than 8:30 a.m. The claimant did not record her work start times and her work end times herself after she received Email E1. 
26. Vice President 1 sent an email to the claimant and Supervisor 1 on 1/4/2024 (Email F1). Email F1 reads, in part “Starting immediately, the following are the rules for the management office at [A]: Office hours are 8:30 a.m. to 5 p.m., Monday – Friday. If staff does not adhere to the hours they must be written up. All staff must punch in/out themselves. If staff continues to miss punches they must be written up.”
27. Supervisor 1 sent an email to Vice President 1 in response to Email F1. Supervisor 1 sent this email on 1/3/2024 (Email F2). The email reads, “Yes, just yesterday I sent something like this to all the staff. I will make sure this most recent update is clear to them. I'll be reinforcing this rule again during our [A] staff meetings ASAP.” 
28. Vice president 1 responded to Email F2 on 1/3/2024 (Email F3). Email F3 reads, “You also need to immediately address [the claimant’s] time with her. She is definitely not working 8 hours per day AND she is not getting in at 8:30 a.m. This needs to be corrected immediately or she is to be written up. This is probably why she is not punching in and/or out and expects you to do it.” 
29. Supervisor 1 responded to Email F3 on 1/3/2024 (Email F4). The email reads, “I agree; I was watching her and noticing this, I’ll follow up.” 
30. The employer created a document titled “Employee Warning & Disciplinary Action Notice.” The document is dated 1/18/2024. Supervisor 1 presented the document to the claimant on or around 1/19/2024. The document reads, in part, “Description of Infractions: Repeated failure to punch in / out at beginning and end of shift. Consistent and repeated tardiness / not adhering to established office hours. Attendance record, specifically when Manager was on vacation. Failure to meet deadlines / complete work as assigned.” The document reads, in part, “Plan for Improvement: Must punch in / out for start time, lunch and end time. If punches are missed, manager will be providing screenshot of entry to/exit from the office in order to be paid accordingly…No unexcused absences will be allowed. Tardiness – established office hours of 8:30 a.m. to 5:00 p.m. must be adhered to at all times.” The document reads, in part, “Consequences of Further Infractions: Unexcused absences will be cause for final warning and potential termination. Deviation of established office hours will be cause for final warning and potential termination. Failure to consistently punch in / out will be cause for final warning and potential termination.” The claimant wrote a comment on the document. The claimant wrote, “I am not in agreeance with this warning and would like to appeal/dispute.” The claimant refused to sign the document. Supervisor 1 signed the document. 
31. The claimant did not start work at 8:30 a.m. after the employer reviewed the January 2024 discipline document with her. The claimant started work at 9:00 a.m. or between 8:30 a.m. and 9:00 a.m. The claimant did not have permission from the employer to start work later than 8:30 a.m. The claimant did not record her work start times and her work end times herself. 
32. The claimant did not present for work at the employer’s office on 2/13/2024. The claimant told the employer that she was working from home on that day due to a snow emergency. 
33. The employer’s regional manager (Regional Manager 1) sent an email to the claimant on 2/13/2024 at 10:31 a.m. (Email G1). Email G1 reads, in part, “I have been asked review schedule and hours while [Supervisor 1] is out for several days. We want to remind everyone that you need to punch in/out on your own each day and for lunches as well.” The document reads, in part, “Office hours are 8:30 a.m. to 5 p.m.” 

34. The claimant sent an email to Office Manager 1 on 2/13/2024 at 2:49 p.m. (Email H1). Email H1 reads: 

    Before you wrap up your investigation would you please add the email below dated February 13, 2024 from [Regional Manager 1] to the file with the following questions: 

    Who is the RVP that asked [Regional Manager 1] to review our hours and attendance today during a state issued snow emergency? 

    I’m hoping it wasn’t [Vice President 1] who you said would not be contacting me while we tried to resolve the motivation for targeting me personally. I was expecting that to include not being filtered through a third party. 

    The email states it was sent as a reminder, yet I’m not familiar with the policies set forth. 

    Please let this email also serve as my reply to [Regional Manager 1’s] email. Since I live on the coast and due to the forecast, I took the necessary precautions recommended which I discussed with my manager, [Supervisor 1] on Monday morning and stayed home. I have been working from home, in communication with maintenance, speaking with contractors, responding to all my text, emails and calls, that work related since 7:30 a.m. this morning. These activities are logged and can be provided upon my return tomorrow. 

35. Office Manager 1 replied to Email H1 on 2/13/2024 at 4:02 p.m. (Email H2). Email H2 reads: 

    I will add your email to the file. I am not aware, however, that there was a state issued snow emergency today. Can you please point me to your source of that information? 

    I am surprised to hear that you are not familiar with the requirements in [Regional Manager 1’s] email. [Supervisor 1] said she sent something similar to staff on 1/2/24 and had discussed it during the staff meeting on 12/22/2023, and I know that I reminded you on 12/1/23 that you need to punch in/out on your own each day and for lunches as well. 

    The Handbook also is clear that even in the event of a severe weather emergency, if an employee chooses to stay home during it they are required to use any available PTO hours or take the day without pay (though you have no available PTO hours). Did [Supervisor 1] also approve you to work from home? 

36. The claimant replied to Email H2 on 2/14/2024 at 10:25 a.m. (Email H3). Email H3 reads:

    I should have been more specific. The storm warnings and snow emergencies were issued over several communities including the entirety of [A] county. But let’s not miss my point that it’s obviously [Vice President 1] communicating these messages through various filters, and she’s not supposed to be doing this under the current circumstances. 

    Please find the link below as the source of information. [Link omitted]. 

    I looked at the emails from the dates you highlighted and there’s no mention of needing approval from an RVP to call out (see email below). I do appreciate your advice though and since I’m not getting paid during those times, from this point forward I’ll make sure not to work while at home under any circumstances. 

    Thank you for your attention and please don’t forget to add these emails to your file as I am doing the same for MCAD. 

37. Office Manager 1 responded to Email H3 on 2/14/2024 at 2:11 p.m. (Email H4). Email H4 reads: 

    Thank you for confirming about the snow emergency and providing a copy of [Supervisor 1’s] email on 1/2/24. 

    You should not assume that [Vice President 1] was behind [Regional Manager 1’s] email about scheduling and hours, as you would be wrong. [The employer] asked [Regional Manager 1] to step in to the chain of command while your complaint is being investigated. With [Supervisor 1] out, the expectation is that scheduling and hours issues will be addressed with [Regional Manager 1] who is an RVP. 

    You will be paid for your time worked yesterday. Please provide the log you mentioned so I can record your time. Also, please answer the question, did [Supervisor 1] approve you to work from home yesterday? 

38. The claimant never answered Office Manager 1’s question about whether Supervisor 1 approved her to work from home on 2/13/2024. 
39. The employer suspected that Supervisor 1 falsified the claimant’s time records after it issued the warning in December 2025. The employer investigated this issue. The employer has cameras in its facility. Office Manager 1 viewed camera footage from late August 2023 through January 2024. The footage showed the claimant as she arrived for work and departed from work. For every day in the period from August 2023 through January 2024, the footage showed that the claimant did not arrive and depart at the times reported in her time records. 
40. System 1 generated a record. The record shows the work start times and work end times reported for the claimant for the period from late August 2023 through 2/1/2024. The record shows that Supervisor 1 entered the claimant’s start time and end times for the majority of the claimant’s shifts. 
41. The employer assigned the claimant to work shifts scheduled for 2/15/2024 and 2/16/2024. 
42. The claimant did not work her scheduled shift on 2/15/2024. The claimant reported her absence to Supervisor 1. The claimant reported that she had a medical appointment. Supervisor 1 accepted this and did not expect the claimant to report to work on 2/15/2024. The claimant visited the Massachusetts Commission Against Discrimination on 2/15/2024. The claimant filed a complaint against the employer. 
43. The employer interviewed Supervisor 1 on 2/15/2024. Supervisor 1 told the employer that she entered the claimant’s work start times and work end times into System 1. The employer told Supervisor 1 that she was discharged for perpetrating timecard fraud. Supervisor 1 told the employer that the claimant reported her work time to her and that she merely relied on this information. Supervisor 1 reported that she had text messages to show that the claimant perpetrated timecard fraud. The employer told Supervisor 1 that she would remain discharged unless she showed that the claimant was the perpetrator of the fraud. 
44. The employer wanted to meet with the claimant to discuss the timecard fraud issue. The employer wanted to determine whether the claimant or Supervisor 1 was the culprit. The employer scheduled a meeting with the claimant for 2/16/2024 at 10:00 a.m. The employer suspended the claimant’s access to its e-mail system on 2/15/2024. The employer did this as part of its investigation into the timecard fraud issue. The employer did not change the locks at its facility. 
45. The employer had not decided to discharge the claimant when it scheduled the 2/16/2024 meeting. The employer desired to gain an explanation from the claimant about the time record issue. 
46. Regional Manager 1 sent a text message to the claimant on 2/15/2024. In this text message, Regional Manager 1 wrote, “[The claimant’s name], this is [Regional Manager 1] from [the employer]. I understand you are not in the office today. Please do not return to [the claimant’s assigned work location], rather report to [Office Manager 1] at [another office], tomorrow morning @ 10:00.” 

47. The claimant sent an e-mail to Office Manager 1 on 2/16/2024 at 8:54 a.m. (Email J1). This e-mail reads: 

    While I was sitting at the state offices yesterday in [City A] filing out my discrimination complaint against [the employer], I found out Supervisor 1 had been terminated, the locks were changed at the building, [Regional Manager 1] texted me to meet at your office, and I’d been locked out of my email. 

    The case worker I was meeting with at MCAD was amazed to be hearing about this act of retaliation in real time. In order to complete my complaint for discrimination and retaliation with her today I need you to confirm this means I have also been terminated. 

    If I don’t here back from you I will inform MCAD that this in fact is the case. 

48. Office Manager 1 replied to Email J1 on 2/16/2024 at 9:24 a.m. (Email J2). This e-mail reads, “You are expected to meet at the home office at 10:00 a.m. this morning. If you decide not to come in then we will accept that as your resignation from employment.” 
49. The claimant did not report to work on 2/16/2024. The claimant did not meet with the employer on 2/16/2024. Supervisor 1 did not give permission to the claimant to miss work on 2/16/2024. The employer did not give permission to the claimant to miss work on 2/16/2024. 

50. The claimant replied to Email J2 on 2/16/2024 at 10:08 a.m. (Email J3). This e-mail reads: 

    Who do you think you’re dealing with? You’ve locked me out of the building, locked me out of my email, and [the employer] has told the staff to call the police if I’m seen near the property. Now you want to intimidate me into showing up for a meeting? 

    Not coming to the meeting you scheduled is not a sign of resignation, it’s an acknowledgement of being terminated and not allowing your vindictive management team the final opportunity of abusing me in person. By the way, how is the investigation on discrimination going? Have you finished it yet? 

51. Office Manager 1 replied to Email J3 on 2/16/2024 at 3:29 p.m. (Email J4). This e-mail reads, in part: 

    You are relying on inaccurate information and making unwarranted assumptions. For example only, the locks were not changed yesterday, and no one told the staff to call the police. 

    One purpose of the meeting was to give you an opportunity to explain your attendance and timekeeping, and to respond to serious allegations made against you yesterday. You were an employee of [the employer] when you chose not to attend the meeting this morning, and [the employer] accepts your actions as your resignation from employment. 

52. The meeting that the employer scheduled with the claimant for 2/16/2024 did not have any other purpose aside from the purpose that Office Manager 1 outlined in Email J4. 
53. The claimant and Office Manager 1 did not communicate via telephone on 2/16/2024 before Office Manager 1 sent Email J4. 
54. The employer never told the claimant that she was discharged or would be discharged. The employer did not discharge the claimant prior to the claimant’s refusal to report to work on 2/16/2024. 
55. The claimant never gave any explanation to the employer on any of the time records that the employer identified as problematic. 

56. Supervisor 1 wrote a memorandum to the employer (Document X). Document X is dated 2/20/2024. Document X reads: 

    I hope you're doing well. Following up on our recent conversation to talk about ongoing concerns regarding [the claimant’s] timekeeping challenges despite our previous efforts to resolve them. 

    Despite various forms of communication — primarily verbal discussions, one-on-one meetings, and on-site group office meetings, supplemented by emails and texts—these challenges have persisted until our most current payroll period. 

    As previously reported, I have personally received/requested time entry electronic corrections from [the claimant] and HR and processed several instances of PTOs/PTOb time off for her/other employees and HR to ensure accurate payroll processing. While many employees encounter similar difficulties, [the claimant's] inconsistency with her timekeeping prevails and requires additional assistance, often she verbally requests that I register her hours on her behalf, despite being aware that this workaround is no longer viable. 

    Despite her receiving suggestions, training, and advice on using Paylocity, [the claimant] continues to rely heavily on manual HR intervention and electronic timesheet corrections from me, expressing forgetfulness and discomfort with the system. Despite numerous verbal and written warnings, from me and my direct supervisor [B], she has not yet demonstrated consistent improvement. 

    Unfortunately, despite our continued efforts, [the claimant']s timekeeping difficulties persist, posing a challenge to our workflow and payroll accuracy. 

    Enclosed are some text examples of our communication with [the claimant] and other employees I oversee, as well as exchanges of information with my supervisor [B] demonstrating my commitment to my job, working in collaboration, looking for the company's best interest, and being responsible for my assignments and tasks. 

    Thank you for your attention to this matter. 

57. Supervisor 1 presented text messages to the employer. Supervisor 1 presented these messages with Document X. Supervisor 1 presented a text message that she sent to the claimant on 11/3/2025. In this exchange, Supervisor 1 wrote to the claimant, “Reminder – you need to clock in from your computer every morning. Also, record your lunchtime – regardless of whether those hours are none payable. Thank you.” Supervisor 1 presented a text message exchange dated 8/29/2025. In this exchange, supervisor 1 wrote to the claimant, “Please send me your hours for the past week. The deadline for payroll was yesterday, I am already late.” The claimant responded, “I am so sorry – 8:30 to 5 p.m.” Supervisor 1 replied, “That was everyday [sic]?” The claimant responded, “Yes, Best Regards.” Supervisor 1 replied, “Reminder – you need to clock in from your computer every morning. Also, record your lunchtime – regardless of whether those hours are none payable- Thank you.” 
58. The employer determined that the claimant’s time record submissions violated its timekeeping policy because she did not enter her own time and she reported inaccurate work start times. The employer concluded that the claimant did not start her shift at her assigned 8:30 a.m. start time. 
59. The employer rehired Supervisor 1 on 2/21/2024 because it concluded that the text messages that Supervisor 1 submitted showed that the claimant perpetrated the time fraud and because the claimant did not present for the 2/16/2025 meeting to refute Supervisor 1’s claims. The employer concluded that the text messages showed that the claimant reported false times to Supervisor 1. 
60. The employer determined that the claimant’s [sic] resigned from her employment when she did not present for the meeting on 2/16/2024.

Credibility Assessment: 

In the hearing, the claimant testified that she had permission from Supervisor 1 to start work at 9:00 a.m. The claimant testified that her punch in and punch out information was not false because she had permission to start work at 9:00 a.m. In the hearing, the employer testified that the claimant’s assigned start time was 8:30 a.m. and that it never changed this time. Given the totality of the testimony and evidence presented, the claimant’s testimony is rejected as not credible and it [sic] concluded that the claimant’s assigned start time was 8:30 a.m.; the employer never changed this start time; and Supervisor 1 did not give permission to the claimant to start work at 9:00 a.m. First, the December 2023 warning indicates that the claimant’s assigned start time was 8:30 a.m. Supervisor 1 signed this document. This is a clear indicator that the employer did not change the start time, and that Supervisor 1 did not approve the claimant to start work at 9:00 a.m. Second, the claimant admitted in the hearing that she never told Office Manager 1 or Vice President 1 that she had permission from Supervisor 1 to start work at 9:00 a.m. This is an indicator that the claimant, in fact, did not have this permission. Third, in the hearing, the claimant testified that Supervisor 1 told her that she could continue to come into work at 9:00 a.m. despite the December 2023 warning; she would punch the claimant in at 8:30 a.m. despite the December 2023 warning; and she would “deal with” Vice President 1. This diminished the claimant’s credibility, because it is unlikely that Supervisor 1 would contravene Vice President 1’s directive and perpetuate the fraud, especially when the record does not feature any information to suggest that Supervisor 1 had anything to gain from such a scheme.

In the hearing, the claimant testified that she had permission to not work on 2/16/2024. Given the totality of the testimony and evidence presented, the claimant’s testimony that she had permission to not work on 2/16/2024 is rejected as not credible. The claimant sent multiple e-mails to Office Manager 1 on 2/16/2024 after the regional manager directed her to report to the meeting. In this e-mail exchange, the claimant did not give any indication that she had the day off on 2/16/2024. Instead, the claimant expressed hostility toward the employer and insisted that she had been discharged. Doubtless, the claimant would have reported that she had the day off if she indeed had the day off. Furthermore, the claimant provided inconsistent testimony on a key point, and this degraded her credibility. In the hearing, the claimant initially testified that she sent an e-mail to Office Manager 1 on 2/15/2024. The claimant testified that she reported in this e-mail that she did not plan to come to the office on 2/16/2024 because she had 2/16/2024 off. The claimant later testified that she did not do this but instead sent an e-mail to Office Manager 1 that indicated she would not report for the meeting on 2/16/2024 because of “all the stuff that had happened” and because she believed she was already discharged. Clearly, this testimony and the e-mails that the claimant sent on 2/16/2024 show that the claimant did not decline to attend the meeting because she had the day off.

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, except where scrivener’s errors appear, as follows. 

This includes the portion of Consolidated Finding 39 indicating the employer issued a warning in December, 2025, where the record shows that the relevant timeline of events occurred from August, 2023, through February 16, 2024, and the warning in question was issued in December, 2023, during the claimant’s employment. Similarly, Consolidated Finding 57 misstates that the text messages were exchanged on November 3, 2025, and August 29, 2025, respectively, where documentary evidence submitted by the employer establishes the texts were issued on November 3, 2023, and August 29, 2023. Lastly, Consolidated Finding 59 incorrectly states the date of the scheduled meeting as February 16, 2025, where it is undisputed the meeting was scheduled to take place a year earlier, on February 16, 2024. 

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. As discussed more fully below, we agree with the review examiner’s legal conclusion that the claimant is ineligible for benefits.

The review examiner denied benefits after analyzing the claimant’s separation under G.L. c. 151A, § 25(e)(1), 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 (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. . . .

This statutory provision expressly places the burden of proof upon the claimant. 

Although the claimant’s actions on February 16, 2024, were what ultimately caused her separation, she maintained that she engaged in those actions because she believed that she was being discharged by the employer. See Consolidated Findings 47 and 50. Throughout the initial hearing sessions, the claimant often vacillated between arguing that she was already terminated before the February 16, 2024, meeting was to take place, and that she was afraid she was going to be terminated during the February 16, 2024, meeting. 

The consolidated findings show that the employer had not already fired the claimant prior to her refusal to attend the February 16, 2024, meeting. Specifically, after remand, the review examiner found the employer had assigned the claimant to work on February 15, 2024, and February 16, 2024, wanted to meet with her to discuss the timecard fraud issue, and scheduled a meeting on February 16, 2024, to do so. See Consolidated Findings 41 and 44. The review examiner also found that the employer had not yet decided to discharge the claimant when it scheduled the meeting, because it wanted to give the claimant an opportunity to explain her timekeeping records. See Consolidated Finding 45. The consolidated findings further show that the employer had not given the claimant permission to miss work on February 16, 2024, and, in an email sent to the claimant later that afternoon, informed her that the employer had considered her to be an employee when she chose not to attend that morning’s meeting. See Consolidated Findings 49 and 51. Given these facts, we do not think that the claimant could reasonably believe that she had already been discharged before the February 16, 2024, meeting. 

Alternatively, the claimant argued that, even if the employer had not already discharged her, her refusal to report to the employer’s meeting on February 16, 2024, stemmed from fear that she would be discharged during that meeting. Consolidated Finding 49 indicates that the claimant was not authorized to be away from work that day. Nothing in the claimant’s communications to the employer attempt to convey that she believed that she had approved time off and was unable to meet, as opposed to merely being unwilling to meet. See Consolidated Findings 47 and 50. By refusing to meet without offering additional information or requesting that the employer reschedule the meeting for another time, the totality of the claimant’s actions suggests that she did not intend or desire to remain employed by the employer when she emailed the office manager on February 16, 2024. Thus, the record supports a conclusion that the claimant initiated her separation from employment and effectively resigned from her position when she did not report to work or meet with the employer on February 16, 2024. See Consolidated Findings 49 and 54.

It is well-settled that an employee who resigns under reasonable belief that she is facing imminent discharge is not disqualified from receiving unemployment benefits merely because the separation was technically a resignation and not a firing. See Malone-Campagna v. Dir. of Division of Employment Security, 391 Mass. 399, 401–402 (1984). Thus, the first question is whether the claimant’s belief that she was being discharged was reasonable. 

Generally, a claimant must wait for her employer to complete its investigation into the claimant’s actions before showing that she reasonably believed that she was about to be discharged. See Board of Review Decision 0002 2960 41 (Jan. 7, 2014). Given the specific facts of this case, however, the claimant’s decision to resign before the employer’s investigation was complete does not preclude her from showing that she reasonably believed that she was about to be discharged.

Here, while the employer has repeatedly denied changing the locks while the claimant was away from work on February 15, 2024, and the review examiner credited this testimony, the employer nonetheless acknowledged that it suspended the claimant’s work email access and directed her to meet at a location that differed from her usual assigned workplace. See Consolidated Finding 44. Recently, the Board concluded that a claimant’s belief that he would be imminently discharged by his employer was reasonable when his computer access, including his access to email, had been shut off, noting that “common sense dictates that an employer blocks such [computer access and work email] only when there is a serious intent to discharge.” Board of Review Decision 0080 9224 28 (Sept. 27, 2024). 

During the initial hearing and in response to the claimant’s allegations that the employer had posted her job description online in early 2024, the employer acknowledged that, because it determined that the claimant’s job had been in jeopardy since January, 2024, it had published “blind ads” for her position at that time. Although not incorporated into the consolidated findings, it is undisputed that, on February 15, 2024, the claimant had learned directly from her supervisor that she had been terminated, and that the supervisor informed the claimant that the claimant was next, which the claimant took to mean that she, too, was about to be terminated from employment. See Exhibits 4, 5, and 13. Further, she was aware that she had received a written warning on January 19, 2024, for various infractions relating to attendance and timekeeping, and that her supervisor had been terminated on February 15, 2024, for perpetuating timekeeping fraud. See Consolidated Findings 30 and 43. Given this record, we think that the claimant could reasonably have believed that she was about to be terminated. 

When a claimant demonstrates a reasonable belief that she is about to be discharged, her separation is treated as involuntary and the inquiry focuses on whether, if the impending discharge had occurred, it would have been for a disqualifying reason under G.L. c. 151A, 
§ 25(e)(2). For example, impending separations based on imminent layoff or poor job performance would not be for disqualifying reasons, and an employee who quits in reasonable anticipation of such would be eligible for benefits. SeeWhite v. Dir. of Division of Employment Security, 382 Mass. 596, 597-599 (1981); and Scannevin v. Dir. of Division of Employment Security, 396 Mass. 1010, 1011 (1986) (rescript opinion). On the other hand, if the impending separation had been for deliberate misconduct in wilful disregard of the employer’s interest or a knowingly violation of a reasonable and uniformly enforced policy, then the employee would not receive benefits.

Accordingly, we consider whether the claimant’s discharge would have been disqualifying under G.L. c. 151A, § 25(e)(2), which provides, in relevant 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). 

Because the employer has not presented evidence that all employees are discharged under these circumstances, we cannot conclude that the claimant’s behavior was a knowing violation of a reasonable and uniformly enforced policy. Alternatively, the employer may show that the claimant’s discharge would have been due to deliberate misconduct in wilful disregard of the employer’s interest.

As a threshold matter, the employer must first show that the claimant engaged in conduct which would have resulted in her termination from employment. After remand, the employer provided extensive testimony, as well as supporting documentation, detailing the employer’s ongoing concerns with the claimant’s attendance and time reporting practices. See Consolidated Findings 13, 21-23, 26, 28, 30, and 33. The employer assigned the claimant to work during its office hours, from 8:30 a.m. to 5:00 p.m., and never changed this schedule. See Consolidated Findings 4 and 30. Nevertheless, the claimant did not comply with her assigned 8:30 a.m. start time when she worked for the employer, as she would start work at either 9:00 a.m. or between 8:30 a.m. and 9:00 a.m. Consolidated Findings 11, 25, and 31. The claimant also failed to record her work start and end times herself and reported from August, 2023, until at least January, 2024, false start and end times to her supervisor, who then entered them into the employer’s payroll system. See Consolidated Findings 12 and 57. When the employer investigated this issue, the office manager viewed camera footage from late August, 2023, through January, 2024, which showed the claimant as she arrived for work and departed from work, and showed that the claimant did not arrive and depart at the times reported in her time records. See Consolidated Finding 39. Because the record does not show that she notified the employer, had approved time off, or otherwise used paid time off to cover her instances of tardiness, the consolidated findings confirm that the claimant engaged in misconduct throughout her employment. Because nothing in the record suggests that the claimant’s conduct was inadvertent or accidental, we can infer that her actions were deliberate.

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).

The claimant confirmed at the remand hearing that she was aware of the employer’s attendance policies and understood that it expected her to report to work as scheduled. See Consolidated Findings 5, and 7–9. However, throughout the remand hearing, the claimant insisted that she had the supervisor’s permission to begin working at 9:00 a.m. The review examiner rejected this testimony as not credible, and instead found that the employer never gave the claimant permission to work any schedule that deviated from its established office hours of 8:30 a.m. to 5:00 p.m. See Consolidated Findings 4, 26, 28, and 30. 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. See School Committee of Brockton v. Massachusetts Commission Against Discrimination, 423 Mass. 7, 15 (1996). As the claimant did not provide any evidence to support her contention, we have accepted the review examiner’s credibility assessment as being supported by a reasonable view of the evidence. 

The record is also replete with evidence that the employer communicated its expectations to the claimant throughout her employment. See Consolidated Findings 16, 23, 26, and 33. In acknowledgement of one such email that the employer sent on December 1, 2023, the claimant replied, “will do, thank you.” See Consolidated Findings 23–24. Despite subsequently receiving a written warning in January, 2024, that described several attendance infractions, including the repeated failure to punch in/out and tardiness, a plan for improvement that required the claimant to punch in and out herself and attend work from 8:30 a.m. to 5:00 p.m., and potential consequences for further infractions that included termination of employment, the claimant continued to start work after 8:30 a.m. and failed to record her work start and end times herself. See Consolidated Findings 30–31.

From this record, we can reasonably infer that the claimant understood that the employer expected her not to misrepresent her hours worked on employer records. See Consolidated Findings 7–8. We can also reasonably infer that the claimant understood that her ongoing failure to adhere to the employer’s work schedule and time-reporting requirements was contrary to the employer’s expectations. See Consolidated Findings 13–16. 

Inasmuch as the employer paid the claimant based on an agreement that she would work a certain number of hours each week and would work a specific schedule each day, its expectations around accurate attendance and time reporting are facially reasonable.

Finally, the claimant did not present mitigating circumstances for her misconduct. Rather, she maintained that she had permission from her supervisor to begin work at 9:00 a.m. and therefore, had not misrepresented her time worked to her employer. The defense of mitigation is not available to employees who deny engaging in the behavior leading to discharge. SeeLagosh v. Comm’r of Division of Unemployment Assistance, No. 06-P-478, 2007 WL 2428685, at *2 (Mass. App. Ct. Aug. 22, 2007), summary decision pursuant to rule 1:28 (given the claimant’s defense of full compliance, the review examiner properly found that mitigating factors could not be found). 

We, therefore, conclude as a matter of law that that the claimant is disqualified pursuant to G.L. c. 151A, § 25(e)(1), because she resigned her job under the reasonable belief of imminent discharge for what would have been disqualifying circumstances under G.L. c. 151A, § 25(e)(2). 

The review examiner’s decision is affirmed. The claimant is denied benefits for the week beginning February 18, 2024, 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 – April 27, 2026

1. This portion of the employer’s testimony is part of the unchallenged evidence introduced at the initial 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. This portion of the claimant’s testimony, as well as Exhibits 4, 5, and 13, are also part of the unchallenged evidence contained in the record. Exhibit 4 is a screen shot showing that the claimant on the phone with her former supervisor on February 15, 2024, at 2:11 p.m. Exhibits 5 and 13 are subsequent text message exchanges between the claimant and one of her former co-workers, in which they discuss the termination of the claimant’s supervisor.

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.

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