Board of Review Decision 352-MLDD-NN87

The claimant declined the position she was offered when she returned from leave because it was an approximately one-hour commute. However, she failed to show the commuting distance rendered the offered work economically unsuitable. Since the work the claimant declined was for more hours and greater pay and did not interfere with any of her other obligations, she did not meet her burden to show she resigned for good cause attributable the employer pursuant to G.L. c. 151A, § 25(e)(1).

Board of Review
100 Cambridge Street, Suite 400
Boston, MA 02114
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Issue ID: 352-MLDD-NN87

Board of Review Decision

Introduction and Procedural History of this Appeal 

The employer appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to award unemployment benefits. We review, pursuant to our authority under G.L. c. 151A, § 41, and reverse. 

The claimant separated from her position with the employer on February 15, 2025. She filed a claim for unemployment benefits with the DUA, effective February 9, 2025, which was denied in a determination issued on May 21, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits, attended by both parties, the review examiner overturned the agency’s initial determination and denied benefits in a decision rendered on July 29, 2025. We accepted the employer’s application for review.

Benefits were awarded after the review examiner determined that the claimant had not engaged in deliberate misconduct in wilful disregard of the employer’s interest or knowingly violated a reasonable and uniformly enforced rule or policy of the employer and, thus, was not disqualified under G.L. c. 151A, § 25(e)(2). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the employer’s appeal, we remanded the case to the review examiner to obtain additional evidence about the circumstances surrounding the claimant’s separation. Both parties attended the remand hearing. Thereafter, the review examiner issued her consolidated findings of fact. Our decision is based upon our review of the entire record.

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant was entitled to benefits because the employer had discharged the claimant by removing her from her assignment while she was on a leave of absence and failing to offer her suitable work upon her return, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

The review examiner’s consolidated findings of fact are set forth below in their entirety:

1. The claimant worked as a security guard for the employer, a security company, from 8/7/24 to 2/15/25. 
2. The claimant initially worked 24 hours per week. She picked up an additional shift and worked 32 hours per week toward the end of her employment. 
3. The claimant lives in [City A], Massachusetts. 
4. The claimant’s assignment from August 2024 to February 2025 was at a hospital in [City A]. She worked Saturday to Tuesday, 3 p.m. to 11 p.m. Her hourly rate of pay was $20 per hour. 
5. The claimant does not have an automobile. She walked or received a ride to and from the hospital site. 
6. The claimant attended school and worked for the employer concurrently prior to 1/29/25. 
7. The claimant was enrolled in four college courses during the spring 2025 semester. The semester started on 1/22/25 and ended on 5/14/25. 
8. One of the claimant’s courses was Fundamentals of Public Speaking. Students were required to complete weekly assigned reading and corresponding activities online, there were slides and videos to view weekly, there were 2 formal recorded speeches plus 3 less formal recorded speaking activities, and written assignments to be submitted online. The course grade included a participation grade, which captured the student’s online “presence.” Students earned attendance/participation credit by completing work in a timely manner and by commenting on others’ work and providing feedback when asked. Assignments were posted online on Tuesday mornings and are [sic] due the following Monday. 
9. One of the claimant’s courses was Modern College Mathematics with Support. The professor offered an additional live zoom class each week. Students were given 9 homework assignments. There were 9 quizzes, a midterm exam, and a final exam. The professor offered two in-person office-hour sessions per week in [City C] and two online sessions per week in the afternoon. 
10. One of the claimant’s courses was Introduction to Nutrition. Students were required to complete weekly assignments and were given quizzes and tests. Instructional methods included lectures /power point presentations, weekly discussion board and assignments, nutrition videos, and publisher web based information. 
11. One of the claimant’s courses was Human Anatomy & Physiology I. The course consisted of three lecture hours and two lab hours per week. There were weekly modules with assignments, objectives, PowerPoints, recommended resources such as reference materials and video links to review. There were end of chapter exams and lab quizzes set up as mini-practical tests. 
12. Each of the above courses had a syllabus with details about weekly assignments, topics covered, quizzes and test dates, and due dates for assignments. 
13. The claimant’s spring 2025 classes were online and asynchronous. The claimant was not required to attend any classes online or in person on specific dates or at specific times. She could view or listen to lectures and review course materials at any time. 
14. Three of the courses did not have set office hours. Students had the option to contact these professors to ask for additional assistance/schedule a meeting with these professors. 
15. The claimant spent approximately 20 hours per week on school-related tasks during the spring 2025 semester. 
16. The claimant’s last physical day of work was 1/28/25. 
17. The claimant was absent from work on 2/1/25, 2/2/25, 2/3/25, and 2/4/25. She notified her on-site supervisor each day she was absent. 
18. On 2/5/25, the claimant spoke with Human Resources Generalist “KN” about her absences. She learned that she was not eligible for federal FMLA leave but could apply for state PFML benefits through DFML. 
19. The claimant was removed from her assignment at the hospital because the employer did not know when the claimant was going to return to work. 
20. The claimant was medically cleared to return to work effective 2/10/25.
21. The claimant was retroactively approved for a PFML medical leave of absence effective 2/1/25 to 2/9/25. 
22. The claimant was available to work 7 a.m. to 3 p.m. shifts, 3 p.m. to 11 p.m. shifts, and shifts that started and ended sometime after 7 a.m. and before 11 p.m., as of 2/10/25. 
23. The claimant was available to work during the above times while attending school because the courses were asynchronous. 
24. “KN” told the claimant there was an assignment available in [City B], Massachusetts, after the claimant was cleared to return to work. 
25. The claimant told “KN” she did not want an assignment outside of [City A], Massachusetts, as commuting outside of [City A] would be more difficult because she does not have an automobile. 
26. The claimant felt it was more difficult to commute to locations outside of [City A] because she would have to walk, use and pay for public transportation, use and pay for rideshare services or taxis, or a combination of these modes of transportation.
27. The [City B] assignment was for a 3 p.m. to 11 p.m. shift, five days per week. The closest public transportation stop to this location is the [City B] Center commuter rail station. 
28. The rate of pay for the [City B] assignment was $21.20 per hour. 
29. It is a 25-minute walk from the claimant’s house to [City A] commuter rail station, which is the closest commuter rail station to her house. It is a 25-to-30-minute ride from the [City A] commuter rail station to the [City B] Center station. 
30. There was an assignment available five days per week in [City C] with a 7 a.m. to 3 p.m. schedule. That assignment was not offered to the claimant after she said she did not want to work outside of [City A]. 
31. There were assignments available in Rhode Island. Those were not offered to the claimant after she said she did not want to work outside of [City A]. 
32. On 2/11/25, “KN” told the claimant there was a part-time assignment available with the City of [City A] at a rate of pay of $19 per hour. 
33. The claimant assumed her City of [City A] schedule would be similar to the hospital assignment because “KN” said she could transfer to an assignment with the City of [City A]. 
34. The claimant did not ask “KN” what her schedule would be and “KN” did not tell the claimant was [sic] her schedule would be with the City of [City A]. 
35. The claimant told “KN” that she accepted the City of [City A] position. She was scheduled to attend training for the position on the morning of 2/15/25. 
36. On 2/13/25, the claimant met with the site scheduling manager and picked up her uniform for the City of [City A] position. The scheduling manager told the claimant this was a per diem position. 
37. The claimant learned she would not be guaranteed a specific number of hours of work per week or guaranteed specific shifts at this per diem position. The City of [City A] would offer her shifts when shifts became available. 
38. The claimant sent a text message to “KN” after learning that this was a per diem position. 
39. The claimant filed an unemployment insurance claim on 2/13/25. 
40. The claimant did not go to her scheduled training at the City of [City A] assignment on 2/15/25. 
41. The claimant did not attend the training session because this was a per-diem position that would not guarantee her any hours, and, consequently, any wages, on a consistent basis, and she was not made aware of this until two days before the assignment was supposed to start. 
42. “KN” did not respond to the text message the claimant sent after learning that the City of [City A] assignment was a per diem assignment.

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. 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. However, as discussed more fully below, we reject the review examiner’s legal conclusion that the claimant is entitled to benefits. 

In this case, the review examiner initially found that the claimant was separated by the employer when she was removed from her assignment while absent from work. See Consolidated Findings 17 and 19. Following remand, however, the Consolidated Findings indicate that the claimant separated from the employer on February 15, 2025, after she failed to report for a new assignment. Consolidated Findings 1 and 40. Although the claimant was removed from her previous assignment while on leave, nothing in the record indicates that the employer severed her employment at that time. 

Upon her return, it offered her several other assignments, consistent with her continued employment as a security guard. Consolidated Findings 24 and 32. Although the claimant initially accepted the assignment with the City of [City A], she did not show up for her first day of training and did not have any subsequent communications with the employer. Consolidated Findings 35, 36, and 40. 

Inasmuch as the claimant failed to either report for her training or otherwise take steps to pursue other assignments from the instant employer, the claimant initiated her own separation from the instant employer. Therefore, this case is properly analyzed as a resignation pursuant to G.L. c. 151A, § 25(e)(1), 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 (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 . . . [or] if such individual established to the satisfaction of the commissioner that his reasons for leaving were for such an urgent, compelling and necessitous nature as to make his separation involuntary. . . . 

 The express language of these provisions assigns the burden of proof to the claimant.  

“When a claimant loses [her] regular job because of a reduction in available work and refuses a job from the same employer, eligibility for unemployment benefits depends on whether the employee has refused an offer of suitable employment.” Graves v. Dir. of Division of Employment Security, 384 Mass. 766, 767 (1981). “Leaving employment because it is or becomes unsuitable is, under the case law, incorporated in the determination of ‘good cause.’ See Graves v. Dir. of Division of Employment Security, 384 Mass. 766, 768 n. 3 (1981).” Baker v. Dir. of Division of Unemployment Assistance, No. 12-P-1141, 2013 WL 3329009 (Mass. App. Ct. July 3, 2013), summary decision pursuant to rule 1:28. In this case, the claimant’s previous assignment was no longer available to her when she was cleared for work on February 10, 2025. Consolidated Findings 19 and 20. However, the employer offered the claimant two other positions, both of which she ultimately declined. Consolidated Findings 24, 25, 35, and 40. Thus, the question becomes whether either position offered by the employer was unsuitable. In our view the job offer in [City B] was suitable. 

In Baker, the Appeals Court noted that, even if a claimant had initially thought that the job would be suitable for her, “the job may have been objectively unsuitable from the start.” Id. Thus, our focus is not so much on the claimant’s personal feelings or subjective belief as to whether she could do the job, but whether, objectively speaking, the job’s pay and requirements were suitable for a person in the claimant’s position. The suitability of a particular job may be dependent on various factors. See G.L. c. 151A, § 25(c) (noting factors to be considered in determining suitable employment include health, safety, morals of claimant; prior education and training; travel distance and costs; and remuneration); Pacific Mills v. Dir. of Division of Employment Security, 322 Mass. 345, 349–350 (1948).

The claimant turned down the offered work in [City B], MA because of her commute to and from the location. Specifically, she had a 25-minute walk to the commuter rail station, and a 25- to 30-minute train ride to [City B] station. See Consolidated Finding 29. According to the employer, the assignment in [City B] was easily accessible by public transit because it was located in [City B] Center. Thus, the record shows that her commute would take approximately an hour if she walked to public transportation. See Consolidated Findings 26–29. Given the offered schedule and the length of the claimant’s commute, she has not shown that the work offered to her was objectively unsuitable. Compare Board of Review Decision 0017 0254 99 (Aug. 25, 2016) (the claimant’s new position on nights and weekends was unsuitable where the claimant faced up to a five-hour commute due to his hours and the frequency of trains on the commuter rail schedule). 

There is also no evidence in the record of any other issues that might render the assignment in [City B] unsuitable. The claimant had been medically cleared to return to work in her position as a security guard as of February 10, 2025. Consolidated Finding 20. Although the claimant was attending school, her classes were asynchronous. Consolidated Finding 13. Because of this flexibility, the claimant confirmed she remained available for work during the hours available at the assignment in [City B]. Consolidated Findings 22, 23, and 27. Further, the assignment in [City B] was in the same position as her previous assignment and also represented a slight increase in pay. Consolidated Findings 1, 4, 22, 23, 27, and 28. Accordingly, the claimant has not met her burden to show that work she refused was unsuitable. 

We, therefore, conclude as a matter of law that the claimant has not met her burden to show that she left her job for good cause attributable to the employer pursuant to G.L. c. 151A § 25(e)(1). 

The review examiner’s decision is reversed. The claimant is denied benefits for the week of February 9, 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 – March 20, 2026

1. The employer’s uncontested testimony in this regard, although not explicitly incorporated into the review examiner’s findings of fact, 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).

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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LSW/rh