Board of Review Decision 352-MML9-2982

The claimant, an occupational therapist, was fired for falsifying information in a child’s clinical observation report. Whether or not she could use the parental consent to observe this child from a prior employer, there were no mitigating circumstances offered for the false entries. Board held her actions were deliberate misconduct in wilful disregard of the employer’s interest under G.L. c. 151A, § 25(e)(2).

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Issue ID: 352-MML9-2982

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. We review, pursuant to our authority under G.L. c. 151A, § 41, and affirm. 

The claimant was discharged from her position with the employer on May 2, 2025. She filed a claim for unemployment benefits with the DUA, effective May 4, 2025, which was denied in a determination issued on June 27, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits attended by both parties, the review examiner affirmed the agency’s initial determination and denied benefits in a decision rendered on September 2, 2025. We accepted the claimant’s application for review.

Benefits were denied after the review examiner determined that the claimant knowingly violated a reasonable and uniformly enforced policy or rule of the employer and, thus, was 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 claimant’s appeal, we remanded the case to the review examiner to obtain additional information regarding the claimant’s termination. 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 discharged for a knowing violation of a reasonable and uniformly enforced policy, is supported by substantial and credible evidence and is free from error of law, where the claimant falsely reported that she had performed an occupational therapy observation of a minor child on a date after receiving the parental consent given to the employer.

Findings of Fact

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

1. The claimant worked as a part-time occupational therapist for the employer, a town, from August 25, 2024, until May 2, 2025, when the employer discharged the claimant.
2. The claimant’s rate of pay was about $75 per hour.
3. The employer maintains a policy that prohibits falsification of records.
4. The discipline for violating the policy may be progressive up to and including termination depending on the circumstances.
5. The claimant did not receive the employer’s policies at the time of hire.
6. The employer expects employees to not falsify reports.
7. During her employment, the employer notified the claimant that they must obtain parental permission prior to observing students. The evaluations must be completed within 30 days of receiving consent from parents to observe their child. 
8. According to Special Education law, a child cannot be observed without first receiving parental consent to do so.
9. The employer did not issue the claimant any prior disciplinary action regarding any issues with her reports prior to her termination.
10. While working for the instant employer, the claimant worked for another employer, a city, through a CPPI grant.
11. The employer’s special education director was aware that the claimant worked for the CPPI grant for the other city.
12. Even if the claimant received prior authorization by a child’s parent to perform an observation from one school system, it is not customary practice to use the information obtained from that observation to perform an analysis for the same child at a different school if the person is assigned to the same child in both districts.
13. In late December 2024 or early January 2025, through the CPPI grant, the claimant, as part of a cohort, was assigned to observe a classroom. The claimant was not assigned to observe any student in particular. The cohort was to conduct a general observation of the classroom.
14. On January 21, 2025, the parents of a child gave the instant employer permission to observe their child for services.
15. The employer was not aware that the claimant had parental authorization to observe the minor child under a CPPI grant for the other city.
16. The child was a member of the classroom observed by the claimant under the CPPI grant in late December 2024 or early January 2025. The child was present in the classroom that was observed by the claimant through the CPPI grant.
17. The claimant was not assigned directly to the minor child under the CPPI grant.
18. The employer’s [X] SPED ([School X] Special Education) team members are the team chair, the speech therapist, the claimant, the special education teacher, the school adjustment counselor/ social worker, and the special education director.
19. The claimant submitted a report to the employer indicating that she observed the child on January 24, 2025, for 40 minutes at a daycare. Within the report the claimant stated that she observed the child [“]participating in his Lego building work.”
20. The claimant did not observe the child on January 24, 2025.
21. No one else contributed to the claimant’s occupational therapy reports.
22. At the time the report was issued, the child lived within the instant employer’s district.
23. At the time the report was issued, the child attended preschool in the other city’s school’s district.
24. The claimant’s reports do not have to be approved by a supervisor prior to being sent to the child’s parents.
25. No one on the [X] SPED team told the claimant that she could use a prior observation.
26. As an occupational therapist, the claimant is familiar with the special education law requiring parental consent prior to observations of a minor.
27. On March 25, 2025, during the [X] team meeting regarding the child, the claimant reiterated that she observed the minor child on January 24, 2025. The parents of the child requested further testing of the child.
28. On March 25, 2025, the attendees of the team meeting were the claimant, the child’s parents, the speech therapist, the chairperson for special education, the parent advocate, the behavior analyst, the school adjustment counselor, the school nurse, a preschool teacher, the special education director and the attorney for the school.
29. On April 1, 2025, the child’s parents signed permission to allow further testing of the child.
30. In April 2025, the child advocate representing the child’s parent wrote an email to the instant employer notifying them that the report indicating that the child was observed on January 24, 2025, was incorrect. 
31. The employer’s special education director contacted the childcare center and verified that there are no Legos in the classroom. The childcare center reported that they had no evidence that the claimant ever came in on January 24, 2025, to observe the child. The center indicated that the claimant may have visited the school in November or December 2024 as part of another grant.
32. On April 28, 2025, in accordance with the parents’ request for further testing, the claimant submitted an occupational therapy evaluation report to the instant employer indicating that she had conducted observations and administered 3 tests as part of her assessment of the child to determine whether the child would continue to receive school based occupational therapy intervention.
33. [The] April 28, 2025, report is an occupational therapy evaluation report submitted by the claimant after completing testing of the child as approved by the employer on April 1, 2025. 
34. [The] January 24, 2025, report is an observation report in which the claimant states that she observed the child on January 24, 2025.
35. Even if the employer was aware that the claimant was authorized to observe the minor child from both the CPPI grant and the employer, the employer would have terminated the claimant. This is because a child cannot be observed prior to obtaining prior parental consent for observation.
36. The Superintendent in the termination letter references the claimant’s report from January 24, 2025.
37. The employer discharged the claimant for falsifying her report by indicating that she observed the child on January 24, 2025.
38. The claimant indicated in her report that she observed the child on January 24, 2025, for unknown reasons.

Credibility Assessment:

The employer discharged the claimant for falsifying a report. The employer offered that the claimant falsified a report indicating that she had observed a student on January 24, 2025, within her duties for the employer. The employer obtained permission to observe the child on January 21, 2025. Within the submitted report, the claimant notes January 24, 2025, as the date of her observation of the child. The employer discovered from the child advocate that the claimant did not observe the child on January 24, 2024. The daycare indicated that the claimant was not present and did not observe the child on that date. The employer complied with the request for documentation relating to this separation. The employer provided the claimant’s submitted reports from January 24, 2025, and April 28, 2025.

The claimant does not dispute that she did not observe the child after the employer obtained the requisite permission. The claimant testified that she observed the child as part of her observation of the child’s classroom through work she was doing for another employer. This observation occurred at the end of December 2024 or early January 2025. The claimant contends that she stated the wrong date to the advocate orally by mistake. She also testified that she did not submit a written report with the wrong date on the report. However, documentation in the record from the claimant indicates that she admitted to the employer that she did place the wrong date on the report and that she regrets doing so. Moreover, the employer submitted the report from the claimant that contradicts her testimony, indicating that she did in fact list the date of her observation as January 24, 2025. The employer also testified that no one in the [X] team gave the claimant permission or informed her that it would be ok to use a prior observation for her report.

The claimant further contends that she wrote her report for this employer using her observations of the child from their prior encounter. She testified that she notified the [X] team of her prior observations and no one objected to her use of the prior observation of the child. She contends that such conduct is not uncommon nor did she intend to falsify her report. However, the claimant admittedly never observed the child outside of the classroom observation prior to writing that report. As an occupational therapist, the claimant is familiar with the special education law requiring parental consent prior to observations of a minor. At the remand hearing, the claimant admittedly observed the child as part of a general observation of the classroom, of which the child was a member. The claimant did not have any individual observation or testing event with the child prior to submitting her January 24, 2025, report to this employer.

Given the above, it is concluded that the claimant’s testimony is contradictory, inconsistent with the documentation and not credible.

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. We further believe that the review examiner’s credibility assessment is reasonable in relation to the evidence presented. However, as discussed more fully below, while we believe that the review examiner’s consolidated findings of fact support the conclusion that the claimant is not entitled to benefits, we do so on different grounds.

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

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

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

The employer maintains a policy that prohibits falsification of records. See Consolidated Finding 3. However, the policy states that violation of the policy may result in termination, and the employer did not show that it discharged all other similarly situated employees who falsified records. See Consolidated Finding 4. Absent such evidence, the employer has not met its burden to show a knowing violation of a reasonable and uniformly enforced policy. 

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

In this case, the employer discharged the claimant because she falsified the January 24, 2025, report. See Consolidated Findings 37. The claimant asserts that she did not falsify the report and that she performed an observation of the child after receiving parental consent. However, the review examiner rejected as not credible the claimant’s assertion that she had not falsified the report. 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 provided internally inconsistent testimony, we have accepted the review examiner’s credibility assessment as being supported by a reasonable view of the evidence.

Clinical observations of minor children can only be conducted after the school has received parental consent. See Consolidated Finding 8. Parental consent to perform an observation of the child was given to the instant employer on January 21, 2025, and the claimant was assigned to the child that day. See Consolidated Finding 14. See also Remand Exhibit 7.

The record shows that, sometime in late December, 2024, or early January, 2025, while on assignment with a different employer (under a CPPI grant) to perform a general observation of a classroom in another school district, the claimant became aware that the child was a member of that class. See Consolidated Findings 10, 13, and 16.  

After the employer received parental consent, the claimant wrote a clinical observation report for the instant employer stating that she had performed an observation of the child on January 24, 2025, and that she had observed him “participating in his Lego building work.” See Consolidated Finding 19. During a team meeting held on March 25, 2025, the claimant reiterated to the [X] SPED team that she had performed an observation of the child on January 24, 2025. See Consolidated Findings 18, 27, 28, and 34.

After the JES SPED team meeting, the child advocate notified the employer’s special education director that there were errors in the claimant’s January 24, 2025, report. See Consolidated Finding 30. The advocate explained that the claimant could not have viewed the child in a classroom setting on January 24, 2025, because the child and his classmates use the pool on Fridays and would not have been in the classroom that day. She further stated that there are no Lego bricks in the child’s classroom. See Remand Exhibit 7. The special education director contacted the childcare center and verified that there were no Lego bricks in the child’s classroom, and that the childcare center had no evidence of the claimant coming to the center on January 24, 2025, to perform an observation of the child, but that the claimant visited the school in November or December of 2024 as part of another grant. See Consolidated Finding 31. Because the claimant stated that she had observed the child on January 24, 2025, when there is no record of her being at the daycare center that day, and the report contained unsubstantiated observations of the child playing, the consolidated findings confirm the claimant did engage in misconduct for which she was discharged. 

Further, there is no evidence indicating that the claimant performed an observation of the child on a different date for the instant employer, which would suggest that the written date of observation in the report was a clerical mistake. The claimant confirmed that she was not assigned directly to the child under the CPPI grant, and, even if we assume she had, it was not customary practice to use information obtained from that observation to perform an analysis of the same child under a different school months later. See Consolidated Findings 12 and 17. Because there is no other explanation for her conduct, we can reasonably infer that the claimant’s act of falsifying the January 24, 2025, report was 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). 

During the hearing, the claimant confirmed that she was aware of the employer’s expectation not to falsify reports. Therefore, she knew that providing inaccurate information in her reports was contrary to the employer’s expectation not to falsify records. We believe that the employer’s expectation is inherently reasonable as it ensures fact-based information is reported to determine a child’s eligibility for educational services. 

During the initial and remand hearings, the claimant contends that she had parental consent to observe the child, and that the instant employer approved her use of the information she obtained from the general consent she had for the observation performed under the CPPI grant. However, the consolidated findings show that each employer required a separate parental consent to perform a specific form of observation or testing on a child. See Consolidated Findings 8, 13, 14, 16, 17, 26, 29, and 32–35. As an experienced occupational therapist, the claimant was aware that the instant employer required parental consent before any observation is conducted on a child in its name. See Consolidated Findings 7 and 26. Based on these findings, the claimant did not have specific parental consent from the instant employer to observe the child prior to January 21, 2025, as she suggests. Also, there is no indication that anyone from the [X] SPED team approved her use of the information obtained in a prior observation under the CPPI grant. See Consolidated Finding 25.

Next, we consider whether the record shows mitigating circumstances. Mitigating circumstances include factors that cause the misconduct and over which a claimant may have little or no control. See Shepherd v. Dir. of Division of Employment Security, 399 Mass. 737, 740 (1987). The absence of mitigating factors for the claimant’s misconduct indicates that the claimant acted in wilful disregard of the employer’s interest. See Lawless v. Department of Unemployment Assistance, No. 17-P-156, 2018 WL 1832587 (Mass. App. Ct. Apr. 18, 2018), summary decision pursuant to rule 1:28.

In this case, regardless of whether the claimant had the proper parental consent, she was unable to provide any explanation for the errors in her report. See Consolidated Finding 38. Absent any evidence that the claimant’s actions were outside of her control, and we see none, her actions were in wilful disregard of the employer’s interest. 

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

The review examiner’s decision is affirmed. The claimant is denied benefits for the week ending May 10, 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 – April 9, 2026

1. The claimant’s termination letter dated May 2, 2025, is Remand Exhibit 7. While not explicitly incorporated into the review examiner’s findings, as well as the claimant’s assignment date and the child advocate’s specific concerns regarding the claimant’s observation report referenced below, are 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.  SeeBleich 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 is also part of the unchallenged evidence introduced at the hearing.

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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