Board of Review Decision 352-N59F-MJ5L

After remand, the review examiner found that the claimant, a mental health specialist at a mental health facility, did not see a patient in his room at 11:56 a.m. when she conducted a safety check, as she had documented in the patient’s record. Board held that the claimant was discharged for deliberate misconduct in wilful disregard of the employer’s interest and she is ineligible for benefits pursuant to G.L. c. 151A, § 25(e)(2).

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Issue ID: 352-N59F-MJ5L

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 was discharged from her position with the employer on September 24, 2025. She filed a claim for unemployment benefits with the DUA, effective September 28, 2025, which was denied in a determination issued on October 30, 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 January 9, 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 remanded the case to the review examiner to allow the employer an opportunity to participate in the hearing. 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 was eligible for benefits because the employer had failed to demonstrate that the claimant had engaged in the conduct for which she was discharged, 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 mental health specialist for the employer, a mental health facility, from August 12, 2024, until September 24, 2025, when she separated.
2. The claimant worked forty (40) hours per week, earning $25.11 per hour.
3. The claimant’s direct supervisor was the clinical nursing director (supervisor).
4. The employer maintains an “Employee Conduct Policy” (policy) which requires employees to conduct proper safety checks of the patients and refrain from falsifying records. The exact contents of the policy are unknown.
5. At her time of hire, the claimant received the policy.
6. The employer retains discretion of [sic] the level of discipline in the event of a violation, which would result in disciplinary action up to and including termination.
7. The employer maintained an expectation that its employees would conduct proper safety checks of the patients and refrain from falsifying records.
8. The claimant was aware of the expectation having received the policy.
9. On September 18, 2025, the claimant was responsible for performing safety checks on patients on her assigned unit. These safety checks are carried out using an application on a cell phone, and the details are then recorded in the patients’ medical records.
10. The employees, including the claimant, are required to monitor the patients every 5 or 15 minutes, based on their medical needs.
11. During the safety checks, employees, including the claimant, must visualize the patient on the unit and record this information in the patient’s medical record using the app.
12. On September 18, 2025, one of the employer [sic] patient’s (patient A) eloped from the facility at 11:45 a.m. The patient A’s elopement was caught on the employer’s camera.
13. On September 18, 2025, the claimant indicated in patient A’s record that she had seen him in his room at 11:56 a.m. during the safety check.
14. The claimant did not see patient A in his room at 11:56 a.m. because he had already left the facility at 11:45 a.m.
15. On September 18, 2025, the claimant went to lunch at 12:00 p.m.
16. Before going to lunch, the claimant gave the safety check device to the nurse in charge.
17. At 12:45 p.m. on September 18, 2025, while another staff member was conducting the safety check, it was discovered that patient A was missing.
18. On September 18, 2025, the employer checked the camera footage and discovered that patient A had eloped at 11:45 a.m.
19. On September 18, 2025, the employer placed the claimant on administrative leave pending an investigation of the incident.
20. On September 23, 2025, the supervisor and employer’s human resources business partner (HR) interviewed the claimant, and she told them that she did not actually see patient A in his room, but she assumed that he was in the bathroom, which is in the room. The claimant told them that she did not knock on the bathroom door because others had yelled at her in the past for doing so.
21. The employer concluded that the claimant had violated the employer’s policy and expectations by not conducting the safety [sic] properly and for falsifying patient’s A medical record that he was in his room at 11:56 on September 18, 2025.
22. On September 24, 2025, the supervisor and HR discharged the claimant effective immediately for not conducting the safety checks properly and for falsifying the employer’s records.

Credibility Assessment:

During the initial hearing, the claimant stated that she saw patient A in his room at approximately 11:45 a.m. on September 18, 2025. She also stated that she did not see patient A leave his room after her check. The claimant further testified that patient A eloped between 11:46 a.m.-11:50 a.m. on that day. Additionally, she testified that she was told by a nurse at 12:40 a.m. after returning from lunch, that patient A had eloped. 

However, her initial testimony conflicts with the employer’s testimony and other evidence. During the remand hearing, the supervisor testified that the claimant recorded seeing patient A in his room at 11:56 a.m., but the supervisor testified that patient A eloped at 11:45 a.m. based on the employer’s camera footage. The claimant also testified that the elopement occurred between 11:46 a.m. and 11:50 a.m. and that she was informed by a nurse about this at 12:40 p.m. The supervisor, however, testified that it was not discovered until 12:45 p.m. that patient A had eloped. Additionally, during the initial hearing, the claimant said she saw patient A in his room during the safety check, but both employer witnesses provided consistent sequestered testimony, that during the interview on September 23, 2025, the claimant stated that she had not actually seen patient A in the room, but only assumed he was there in the bathroom. 

In light of the employer’s specific, detailed and credible testimony, it is concluded that the employer’s version of events is more credible than the claimant’s version.

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, we reject the review examiner’s legal conclusion that the claimant is eligible for benefits.

Because the claimant was terminated from her employment, her qualification for benefits is governed by G.L. c. 151A, § 25(e)(2), which provides, in relevant 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).

In this case, the employer discharged the claimant because she did not conduct safety checks properly and falsified records. See Consolidated Finding 22. These actions violated the employer’s employee conduct policy. See Consolidated Finding 4. 

Employees who violate this policy receive disciplinary action, up to and including termination, at the employer’s discretion. See Consolidated Finding 6. Since the employer maintains this discretion, the employer has not demonstrated that the claimant was discharged for violating a reasonable and uniformly enforced rule or policy.

We next consider whether the employer has shown that the claimant was discharged for 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 she was discharged. 

The employer expects employees who are conducting safety checks to monitor patients by visualizing them every 5 or 15 minutes. See Consolidated Findings 10 and 11. It also expected employees not to enter false information into patients’ records. See Consolidated Finding 7.

In her original decision, the review examiner found that, when the claimant conducted a safety check of patient A at approximately 11:45 a.m. on September 18, 2025, patient A was in his room. He subsequently eloped between 11:46 a.m. and 11:50 a.m. After remand, the review examiner found that patient A eloped at 11:45 a.m. on September 18, 2025. The claimant subsequently recorded in patient A’s medical record that she had seen patient A in his room at 11:56 a.m. while conducting safety checks. However, she did not see patient A at that time because he had already eloped.  Based on this revision, it is apparent that the review examiner no longer believed that the claimant saw patient A when she conducted her last safety check, nor did she believe that the information the claimant entered into patient A’s record was accurate. 

In her credibility assessment, the review examiner stated that the employer’s testimony regarding these events was specific and detailed, and its version of events was more credible than the claimant’s. Such credibility 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).

Given the record, we believe that the review examiner reasonably assigned more weight to the employer’s testimony. We will not disturb her credibility assessment. The employer met its burden to show that the claimant violated its expectations and, thus, engaged in the misconduct for which she was discharged. 

Next, the employer must show that the claimant’s misconduct was deliberate. Nothing in the record indicates that the claimant’s failure to visualize patient A or falsely record that she saw him in his room was inadvertent or a mistake. Rather, she told the employer in an interview conducted on September 23, 2025, that she had assumed that patient A was in the bathroom and refrained from knocking on the bathroom door to confirm that he was in there because others had yelled at her in the past for doing so. See Consolidated Finding 20. In choosing not to check the bathroom, it is evident that the claimant acted deliberately. 

However, deliberate misconduct is not enough. The employer must also show that the claimant acted 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). In order 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) (citation omitted).  

In this case, the claimant was aware of the employer’s expectations. She had received the employer’s employee conduct policy, which sets out the employer’s expectations, when she was hired. See Consolidated Findings 4, 5, 7, and 8.

The employer’s expectations that employees visualize patients when conducting safety checks is a reasonable means of ensuring that patients are actually safe. Expecting employees not to falsify records is innately reasonable. 

As for mitigating circumstances, the defense of mitigation is not available to employees who deny engaging in the behavior leading to discharge. See Lagosh v. Comm’r of Division of Unemployment Assistance, No. 06-P-478, 2007 WL 2428685, at *2 (Mass. App. Ct. Aug. 22, 2007), summary decision pursuant to rule 1:28 (given the claimant’s defense of full compliance, the review examiner properly found that mitigating factors could not be found). 

Here, the review examiner noted in her credibility assessment that, during the initial hearing, the claimant asserted that she saw patient A in his room at approximately 11:45 a.m. on September 18, 2025, and he subsequently eloped between 11:46 a.m. and 11:50 a.m. The claimant further testified that she had not falsified documentation.  In so testifying, the claimant was asserting that she did not engage in the misconduct, and a defense of mitigation may not be considered.

We, therefore, conclude as a matter of law that the employer has met its burden to show the claimant was discharged for deliberate misconduct in wilful disregard of the employer’s expectation 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 beginning September 28, 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 3, 2026

1. Compare Consolidated Findings 12–14 with the original hearing decision, Remand Exhibit 1, Findings of Fact 6 and 9.
2. We have supplemented the findings of fact, as necessary, with the unchallenged evidence before the review examiner. 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).

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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