Board of Review Decision 352-N3LM-83KJ

The claimant, a security guard, was discharged for allegedly stealing a check from a tenant of the employer’s client. Held the employer did not meet its burden to show the claimant engaged in conduct that violated an employer policy or expectation. Therefore, he was eligible for benefits pursuant to G.L. c. 151A, § 25(e)(2).

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Issue ID: 352-N3LM-83KJ

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 July 2, 2025. He filed a claim for unemployment benefits with the DUA, effective June 22, 2025, which was denied in a determination issued on September 10, 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 awarded benefits in a decision rendered on November 24, 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 events that led to the claimant’s separation. 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 employer failed to establish that the claimant committed the act for which he was discharged and, therefore, had not engaged in deliberate misconduct in wilful disregard of the employer’s interest or violated a reasonable and uniformly enforced rule or policy of the employer, 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. Prior to filing for benefits, the claimant worked as a security guard for the employer, a company providing armed and unarmed security services to clients. The claimant began working for the employer in or about September 2024. He worked a full-time schedule, 3:00 p.m. – 11:00 p.m., Monday through Friday and earned $20.00 per hour.
2. The claimant’s supervisor was the employer’s security supervisor.
3. Throughout the claimant’s employment, he received verbal counseling regarding his attendance.
4. The employer has a handbook containing the employer’s rules and policies, including section 5.1 that prohibits criminal activity, including larceny (Policy).
5. The purpose of the Policy is to ensure compliance with the laws of the Commonwealth.
6. The claimant admittedly knew of the Policy.
7. Violations of the Policy result in suspension leading to termination.
8. The employer has an expectation that employees do not steal from the employer’s client’s tenants.
9. The purpose of the employer’s expectation is to maintain the reputation of the employer.
10. The claimant admittedly knew of the employer’s expectation as a matter of common sense.
11. The claimant last performed work for the employer on 6/26/2025.
12. Between about 3:00 p.m. on 6/26/2025 and the morning of 6/27/2025, a tenant (Tenant) of the employer’s client (Client) reported to the Client’s management team that he was missing a check.
13. In the early morning on 6/27/2025, the Client contacted the employer’s owner and reported that the claimant had stolen the Tenant’s check.
14. On 6/27/2025, the employer’s supervisor and the employer’s client’s program director reviewed video surveillance footage provided by the Client and determined that the claimant took some envelopes from the mail delivery bin to deliver to the “back room”, removed one envelope from the stack, and placed it in his pocket on 6/26/2025 at 1:09 p.m..
15. On 6/27/2025, the Client’s program director called the employer’s owner and stated that the claimant was no longer allowed to [sic] the client’s location.
16. On 6/27/2025, the employer’s owner reviewed the video surveillance footage and decided to discharge the claimant for violation of the employer’s Policy.
17. On 6/27/2025, the employer’s owner and supervisor spoke to the claimant who denied any wrongdoing.
18. On 6/27/2025, the employer suspended the claimant pending further investigation. The employer’s investigation included reviewing the video surveillance footage and speaking with the Client’s management.
19. On or about 6/27/2025, the claimant messaged with a co-worker who affirmed that the Tenant “found his check” and “He says somebody trying to sign he check”.
20. On 6/28/2025, the Tenant notified the Client that he found the check.
21. On 7/2/2025, the employer discharged the claimant for violation of the Policy.
22. The employer had no alternative work available for the claimant at [sic] time of his separation.
23. The claimant had no intent to quit his employment.
24. On 9/10/2025, the Department of Unemployment Assistance (DUA) issued a Notice of Disqualification to the claimant. The claimant appealed that determination.

Credibility Assessment:

As a preliminary matter, the employer’s witness attested that the employer discharged the claimant for taking possession of a tenant’s check while on duty in violation of the employer’s ethics code.

The employer’s witness, the claimant’s supervisor, stated that on or about 6/27/2025, she reviewed video surveillance footage that showed the claimant “going into a mail bin that was placed behind the security desk and looking through some mail, then proceeding to a backroom area and going through the same pieces of mail and sticking an envelope in his pocket”. The testimony was corroborated by the video evidence. During the remand hearing, the employer’s witness verified that the timestamp on the video provided to the department by the employer was off by one hour, rather than the incident being at 2:09 p.m. on 6/26/2025, it happened at 1:09 p.m.

The employer’s witness offered testimony that the tenant reported the missing check to the management of the building “after the shift change” on 6/26/2025, resulting in the management team reviewing the surveillance footage and contacting the employer’s business owner “early in the morning” on 6/27/2025, “sometime after 8:00AM” but “before lunchtime”. The employer’s witness denied knowledge of the time when the client’s tenant reported the incident to management. She verified that case managers for the employer’s client working the morning shift usually leave between 3:00 p.m. – 4:00 p.m. As such, it is determined that the tenant reported the missing check to the employer’s client’s management between 3:00 p.m. on 6/26/2025 and the morning of 6/27/2025.

The employer’s witness failed to provide consistent testimony regarding when the claimant learned that the tenant had reported that his check had been stolen. During the initial hearing, both parties concurred that the claimant last performed work for the employer on 6/26/2025 and that the employer’s owner called the claimant prior to the start of his shift, advising him not to come to work on 6/27/2025. During the remand hearing, the employer’s witness initially affirmed that the claimant last performed work for the employer on 6/26/2025. She stated that on 6/27/2025, the employer’s president, one of the business owners, called the claimant prior to the start of his shift and advised him that he was “not allowed to return to the shelter at the request of the management of the site”. The witness admittedly had no first-hand knowledge of the conversation. Later, the employer’s witness gave inconsistent testimony that the claimant arrived for his shift on 6/27/2025 at or about 3:00 p.m., “most likely after” speaking to the employer’s owner regarding the incident. She stated that he was “immediately removed that day from the site when he showed up”. Then, the employer’s witness provided further inconsistent testimony that she and another officer arrived at the site between 3:30 p.m. and 4:00 p.m. and escorted the claimant from the building and further admitted that she did not know whether the employer’s owner told the claimant about the missing document before or after he showed up for work.

Regardless, the employer’s witness testified that on 6/27/2025, prior to being escorted out of the building, the claimant was performing his initial job duties. She provided extensive testimony about security access to each client’s tenant’s room, indicating that the claimant generally would have had limited or no access to the tenant’s room.

The employer’s witness stated she believed that the tenant found the check on 6/28/2025 “with a forged signature on the back” and reported it to the client’s management. She denied direct knowledge of when and where the tenant found his check. Moreover, the employer’s witness attested that she has no knowledge of what the claimant’s signature looks like. She was unable to recall in what way the signature matched the claimant’s signature pattern, failing to corroborate the employer’s allegation that its client “discovered the check with an attempted forged signature bearing distinctive characteristics matching (the claimant’s) signature pattern”.

Given the employer’s witness’s illogical and inconsistent testimony throughout the remand hearing, it is determined that her testimony was 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 except as follows. We reject Consolidated Finding 7 insofar as it infers that violations of the policy will result in suspension, as the employer testified that disciplinary action for violating policies in the employer’s handbook “can be suspension leading to termination.” 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 believe that the review examiner’s consolidated findings of fact support the conclusion that the claimant is entitled to 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).

To meet its burden under G.L. c. § 25(e)(2), the employer must, as a threshold matter, show that the claimant engaged in the misconduct or policy violation for which he was discharged. In this case, the employer discharged the claimant for allegedly violating its policy that prohibits criminal activity by stealing a check from a tenant of the employer’s client. SeeConsolidated Findings 4, 13, 16, and 21.

Video surveillance footage from 1:09 p.m. on June 26, 2025, shows the claimant removing an envelope from a stack of mail and putting it in his pocket. See Consolidated Finding 14. The tenant subsequently reported to the employer’s client that he was missing a check sometime between 3:00 p.m. on June 26, 2025, and the morning of June 27, 2025. The tenant later reported that he had found his check with an allegedly forged signature on the back. See Consolidated Findings 19 and 20.

As noted in the review examiner’s credibility assessment, the employer failed to provide substantial or credible evidence that this attempted forged signature matched the claimant’s signature pattern. The security camera footage only shows the claimant placing an envelope in his pocket while in the back room. This evidence does not show that the envelope contained the tenant’s check. Further, the employer’s witness testified that the claimant would have had limited or no access to the tenant’s room where the tenant found his check. Given this evidence, the record does not contain substantial evidence to support the employer’s allegation that the claimant stole a tenant’s check. Accordingly, the employer has failed to show that the claimant’s discharge was attributable to misconduct or a policy violation. 

We, therefore, conclude as a matter of law that the employer has not met its burden to show that the claimant was discharged for deliberate misconduct in wilful disregard of the employer’s interests or for a knowing violation of a uniformly enforced rule or policy, 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 beginning June 22, 2025, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision - April 27, 2026

1. While not explicitly incorporated into the review examiner’s findings, the employer’s testimony on this point 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). 
2. The testimony of both parties during the initial hearing that the tenant found his check in his room is also part of the unchallenged evidence introduced at the hearing and placed into the record.

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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