Board of Review Decision 352-N46L-MN45

Retail worker, who was fired for saying she was not allowed to express her feelings at work within earshot of a customer, was held to have engaged in deliberate misconduct in wilful disregard of the employer’s interest. Anger at her manager was not a mitigating circumstance. The claimant is ineligible for benefits pursuant to G.L. c. 151A, § 25(e)(2).

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Issue ID: 352-N46L-MN45

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 20, 2025. She filed a claim for unemployment benefits with the DUA, effective February 16, 2025, which was denied in a determination issued on September 30, 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 March 2, 2026. 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 afforded the parties an opportunity to submit written reasons for agreeing or disagreeing with the decision. Both parties responded. 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 had shown mitigating circumstances for making negative comments about the employer because she was angry after just having been spoken to by her supervisor about improving her demeanor when interacting with customers, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

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

1. The claimant worked full-time for the employer, a cannabis retailer, first as a bud tender and then as a shift lead, from December 2022 until her separation on February 20, 2025. 
2. The claimant was supervised by the General Manager. 
3. The employer maintained rules and standards of conduct (hereinafter “policy”) which described a series of behaviors that were considered “unacceptable in the workplace.” 
4. The purpose of the policy is to ensure a productive working environment. 
5. The policy provides for discipline “up to and including termination of employment” for conduct which is violative of the policy. 
6. The employer expected employees to avoid negative talk and to maintain positive interactions with coworkers and customers. 
7. The purpose of the expectation is to maintain a positive image for the business and to ensure profitability in an increasingly competitive cannabis market. 
8. The claimant was aware of the expectations from prior coaching sessions with the manager. 
9. On January 2, 2025, the claimant was called into the cash vault and spoken to by the Store Manager about the need for her to improve her attitude and demeanor when interacting with customers. 
10. Immediately following the meeting with the Store Manager on January 2, 2025, the claimant walked out into the store and was asked by a coworker why she was upset. The claimant responded to the coworker that she had been instructed to not share how she was feeling when at work. 
11. On January 18, 2025, a customer left a one-star review of the employer (out of a possible 5 stars) on a cannabis social media site. The post described a “short girl with glasses” as the employee who had said she could not say how she was feeling or risk being fired. 
12. On February 17, 2025, the Store Manager became aware of the 1-star review. 
13. On February 17, 2025, the claimant admitted to the Store Manager that she was the person described in the post and that she had been upset after being spoken to at the meeting of January 2, 2025. 
14. The employer discharged the claimant on February 20, 2025, for making a negative comment to a customer.

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 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 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. 

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). 

Although the employer maintained a policy prohibiting employees from engaging in unprofessional and negative conduct in the workplace, it retained discretion as to how it disciplined employees who violated this policy. Findings of Fact 3 and 5. Because it did not show that it discharged all similarly situated employees who made negative comments about the employer to coworkers and customers, it did not meet its burden to show a knowing violation of a reasonable and uniformly enforced rule or policy. 

We next consider whether the employer has met its burden to show 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 the misconduct for which she was discharged.

In this case, the employer discharged the claimant for making a negative comment about the employer to a coworker within earshot of a customer. Findings of Fact 10, 11, and 14. Specifically, the claimant stated that she had been instructed not to say how she was feeling at work, and the customer subsequently left a one-star review on a social media site referring to the claimant’s statement. See Findings of Fact 10 and 11. We agree that this type of comment presents the employer in a negative and unfair light. As the claimant did not dispute that she was the individual who made the comment referenced in the customer’s January 18, 2025, review, her testimony confirms that she engaged in the misconduct for which she was discharged. Findings of Fact 11 and 13. Inasmuch as this statement was made immediately after being coached not to make negative comments, and nothing in the record suggests that the claimant made the statement inadvertently, her statement is self-evidently deliberate. SeeFinding of Fact 10. 

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. 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). 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 claimant was aware that the employer expected her to avoid negative talk about the employer and to maintain positive interactions with co-workers and customers. Findings of Fact 6 and 8. In fact, she was warned about her attitude and demeanor just prior to making the negative comment on January 2, 2025. Findings of Fact 9 and 10. We believe this type of expectation to be a reasonable way to maintain a positive image for the business. Although the store manager’s behavior in the vault may have upset the claimant, it does not alter her understanding of the employer’s expectations around her statements to customers and coworkers. 

In this case, the review examiner erred in concluding that the claimant’s anger constituted mitigating circumstances for her actions. The store manager’s behavior in the vault may have upset the claimant, but nothing in that interaction compelled her to speak negatively about the employer when she returned to the sales floor or rendered her unable to control her behavior. The claimant chose to express her frustration with the employer when her co-worker asked why she was upset. Her 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 reversed. The claimant is denied benefits for the week ending February 22, 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 – June 11, 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.

LSW/rh