Board of Review Decision 352-MN63-44MR

The employer did not provide substantial and credible evidence showing the claimant engaged in any action or inaction that was inconsistent with the employer’s expectations. It, therefore, did not meet its burden to show that the claimant violated an employer policy or otherwise engaged in misconduct, and the claimant is not disqualified pursuant to G.L. c. 151A, § 25(e)(2).

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Issue ID: 352-MN63-44MR

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 affirm. 

The claimant was discharged from his position with the employer on June 4, 2025. He filed a claim for unemployment benefits with the DUA, effective June 8, 2025, which was denied in a determination issued on July 14, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits, attended only by the claimant, the review examiner overturned the agency’s initial determination and awarded benefits in a decision rendered on December 19, 2025. We accepted the employer’s application for review.

Benefits were awarded after the review examiner determined that the claimant did not engage in deliberate misconduct in wilful disregard of the employer’s interest or knowingly violate 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 afford the employer an opportunity to testify. Only the employer 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 did not violate the employer’s expectation to refrain from threatening and intimidating behavior, 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 and credibility assessment are set forth below in their entirety:

1. The claimant worked as a full-time landscaper for the employer, a landscaping company, between 5/19/2025 and 6/4/2025, when he separated. 
2. The claimant had a supervisor, a manager, and various foremen, depending on who was on each jobsite. 
3. The employer has a workplace violence policy prohibiting “any act of intimidation, threat, harassment, physical violence, verbal abuse, aggression or coercion against a coworker, vendor, or visitor” (the policy). 
4. The claimant received the policy during his employment. 
5. The policy stated, in part, that the employer “will take prompt remedial action, up to and including termination, against any employee found to have engaged in threatening behavior or acts of violence.” 
6. The claimant received the handbook that contained the policy upon hire. 
7. The employer expected employees not to have “physical or verbal altercations with someone at work.” 
8. The claimant knew of this expectation through the policy he received upon hire. 
9. On 6/4/2025, the claimant was approached by the “boss” at the employer who informed the claimant that one of the foremen [Foreman] received information from a customer that said they saw the claimant smoking cigarettes at the employer during his shift on 5/30/2025. 
10. The claimant informed the “boss” that he does not smoke cigarettes, and that he was using a vape pen. 
11. The claimant did not think he did anything wrong when he used the vape pen at work because he did not think it was against the employer’s policies. 
12. The claimant approached [Foreman] and stated, “That is crazy that you are going to risk my job for something I did not do. Next time, we are going to have problems.” 
13. [Foreman] stated, “I am not dealing with this,” and walked away from the claimant. 
14. The claimant raised his voice at [Foreman], but he did not yell. 
15. The claimant did not think that he would be disciplined due to the conversation he had with [Foreman] because he did not think it was threatening or violent behavior. 
16. The claimant did not make any threats to [Foreman]. 
17. At the time the claimant approached [Foreman], the claimant did not think he violated the workplace violence policy. 
18. The manager instructed the claimant to go home for the day. 
19. At approximately 5:00 p.m., the claimant received a phone call from the employer’s chief enforcement officer (CEO) or the manager, terminating his employment for his conduct during his conversation with [Foreman]. 
20. The employer filled out fact-finding documents for the Department of Unemployment Assistance (DUA). The employer’s CEO provided the written responses in the fact-finding questionnaire (Questionnaire). 
21. At the time of the remand hearing, on 3/16/2026, the CEO no longer worked with the employer. 
22. The employer’s Director of Administration did not work directly with the claimant during the claimant’s employment.

Credibility Assessment:

While the employer contended in their Questionnaire responses that the claimant was discharged for making threats to [Foreman] on 6/4/2025, the claimant’s direct testimony at the initial hearing on this matter about his discharge is deemed more credible than the employer’s written responses and the Director of Administration’s testimony during the remand hearing. 

The claimant testified during the initial hearing that he did not yell at [Foreman], and he did not think what he said to [Foreman] on 6/4/2025 was threatening or violent behavior. Despite the Director of Administration attending the remand hearing on behalf of the employer, she was forthcoming in her testimony that she did not have any firsthand information to provide about the claimant’s discharge. The Director of Administration was unable to provide any substantial and credible details of the claimant’s discharge. The Director of Administration was unable to confirm or deny the Questionnaire responses the employer provided the DUA. As such, the claimant’s testimony is more credible than the employer’s written responses and testimony at the remand hearing.

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

Because the claimant was discharged from his employment, his 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).

By its terms, the employer’s workplace violence policy allows for discretion in imposing discipline, as it states that the employer may take any action up to and including termination with regard to any employee found to have engaged in threatening behavior or acts of violence. See Connsolidated Finding 5. Further, the employer did not present any evidence that employees who engaged in similar behavior received the same discipline. Therefore, the employer has not met its burden to show a knowing violation of a reasonable and uniformly enforced policy. As such, we consider only whether the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. 

The claimant was fired for his conduct during his conversation with the foreman. See Consolidated Finding 15. While the findings show that the employer was displeased with the claimant’s interaction with the foreman on June 4, 2025, the record does not explain exactly how the claimant’s actions violated its workplace violence policy or its expectation not to have physical or verbal altercations with someone at work. See Consolidated Findings 3 and 7. For this reason, the record lacks substantial evidence showing that the claimant engaged in the misconduct for which he was fired. Accordingly, the employer did not meet its burden to show that the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. 

We, therefore, conclude as a matter of law that the employer has failed to show that the claimant knowingly violated a reasonable and uniformly enforced policy or engaged in deliberate misconduct in wilful disregard of the employer’s interest within the meaning of G.L. c. 151A, § 25(e)(2).

The review examiner’s decision is affirmed. The claimant is entitled to receive benefits for the week of June 8, 2025, and for subsequent weeks if otherwise eligible. 

Boston, Massachusetts                                              Date of Decision – April 14, 2026

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

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