Board of Review Decision 352-N44N-HPKH

The claimant was discharged for unprofessional conduct because he argued with and swore at his supervisor when they were discussing his job duties. Being agitated that others had not done their work is not a mitigating circumstance. Held claimant ineligible for benefits under G.L. c. 151A, § 25(e)(2), due to deliberate misconduct in wilful disregard of the employer’s interest.

Board of Review
100 Cambridge Street, Suite 400
Boston, MA 02114
Phone: [phone]
Fax: [phone]

Issue ID:  352-N44N-HPKH    

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 separated from his position with the employer on June 10, 2025. He filed a claim for unemployment benefits with the DUA, effective June 8, 2025, which was approved in a determination issued on September 26, 2025. The employer appealed the determination to the DUA hearings department. Following a hearing on the merits attended only by the employer, the review examiner overturned the agency’s initial determination and denied benefits in a decision rendered on March 2, 2026. We accepted the claimant’s application for review.

Benefits were denied after the review examiner determined that the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest 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 evidence about the reason for 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 discharged because he engaged in unprofessional conduct when he argued with and swore at the employer’s hospital manager, 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 veterinary technician for the employer, a veterinary hospital, between September 1, 1980, and June 10, 2025, when he separated. 
2. The claimant worked Monday through Friday between 7:00 a.m.-3:00 p.m., earning $32.32 per hour. 
3. The claimant’s supervisor was the hospital manager (manager). 
4. The claimant’s job duties included cleaning the runs and surgical areas where the animals underwent procedures at the hospital. 
5. No written policies were presented. 
6. The employer maintained an expectation that its employees would refrain from unprofessional conduct in the workplace. 
7. The claimant was aware, as a matter of common sense, that he should refrain from unprofessional conduct in the workplace. 
8. On or about May 14, 2025, the claimant saw a dirty run in a cage. The claimant, upset because he believed no one else had been cleaning the runs, wrote a note indicating that the run was dirty and noted the date. He then placed the note at the bottom of the run and put it back without cleaning it. 
9. On May 28, 2025, the claimant and the manager got into a verbal altercation at work regarding blankets and towels that needed to be restocked. 
10. On May 28, 2025, the manager also realized that one of the runs was dirty. The manager picked up the item to clean it and saw the note that had been stuck to the bottom, which indicated that the run had not been cleaned since May 14, 2025. 
11. On May 28, 2025, the manager asked who had written the note, and it was revealed that the claimant had written the note and placed it on the item. 
12. On May 28, 2025, the manager asked the claimant about the note and why the area had not been cleaned. The claimant told the manager that “it was not [his] fucking job.” 
13. On May 28, 2025, the claimant and the manager engaged in a verbal argument regarding his job duties, including restocking blankets and towels and cleaning the runs. 
14. The manager did not swear at the claimant during the altercation. 
15. During his employment, although the claimant and the manager disagreed on issues, they did not always have verbal arguments. 
16. It was not commonplace for employees to swear at each other at the workplace because there were usually visitors and families around. 
17. On June 10, 2025, the employer discharged the claimant for being unprofessional towards the manager on May 28, 2025. 

Credibility Assessment: 

During the remand hearing, the claimant stated that his coworker frequently argued and used swear words during work. However, he also stated that such language was only used in a joking or playful context. He also testified that the manager did not swear at him on May 28, 2026. 

Furthermore, the manager testified that, although disagreements occurred, it was uncommon for employees to swear at each other, especially given the presence of visitors and families at the workplace. 

Based on the totality of the record, the employer’s testimony is deemed credible, as that testimony is more reasonable and logical.

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 believe that the review examiner’s consolidated findings of fact support the conclusion that the claimant is not 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). 

The employer did not present any express rules or policies. Therefore, it has not met its burden to show a knowing violation of a reasonable and uniformly enforced rule or policy. See Consolidated Finding 5. 

We next 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 that the claimant engaged in the misconduct for which he was discharged. 

In this case, the employer discharged the claimant because he acted unprofessionally towards the employer’s manager on June 10, 2025. Consolidated Finding 17. Since there is no dispute that he swore at and argued with the manager on that day, he engaged in the unprofessional conduct for which he was discharged. Consolidated Findings 12 and 13. In the context of being upset that no one else had cleaned the run, the claimant’s response, “it was not [his] fucking job”, to the manager who questioned him about not doing so is self-evidently deliberate. 

However, the Supreme Judicial Court has stated, “[deliberate] misconduct alone is not enough. Such misconduct must also be in ‘wilful disregard’ of the employer’s interest. 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). 

Following remand, the review examiner rejected as not credible the claimant’s testimony that employees often swore at one another. Consolidated Finding 16. 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). Upon review of the record, we believe that the review examiner’s assessment is reasonable in relation to the evidence presented.

The claimant conceded that he understood the employer expected its employees to act respectfully and professionally towards one another. Consolidated Finding 7. This expectation is reasonable, as it ensures that employees feel safe in the workplace and work together cooperatively and productively. 

As the review examiner found that it was uncommon for employees to swear at each other, her consolidated findings do not support a conclusion that the claimant reasonably believed that the employer permitted employees to swear at their supervisors. See Consolidated Finding 16. Therefore, the claimant’s termination for telling his supervisor “it was not [his] fucking job” to clean the runs cannot fairly be characterized as a surprise.

Finally, we consider whether the claimant presented mitigating circumstances for his misconduct. 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). Although the claimant may have been agitated because he believed that no one else was helping to clean the runs, there is no evidence that he was unable to control his behavior. Because the claimant chose to express his frustration by swearing at his supervisor, his actions were done in wilful disregard of the employer’s interest.

We, therefore, conclude as a matter of law that the employer has met its burden to show that the claimant’s discharge was attributable to 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 denied benefits for the week ending June 14, 2025, and for subsequent weeks, until such time as he has had at least eight weeks of work and has earned an amount equivalent to or in excess of eight times his weekly benefit amount.

Boston, Massachusetts                                              Date of Decision – July 17, 2026

Martha M. Wishart, Esq.
Chair

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.

Visit this page to locate the nearest Massachusetts District Court.

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.

LSW/rh