Board of Review Decision 352-ND97-5V6M

In stating that the claimant’s actual demeanor during a meeting was unknown, the review examiner implicitly rejected as not credible the employer’s assertion that the claimant had been angry and confrontational. Because the employer discharged the claimant for this alleged behavior, it did not meet its burden to show the claimant engaged in conduct that violated an employer policy or expectation and he was, therefore, eligible for benefits pursuant to G.L. c. 151A, § 25(e)(2).

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

Issue ID: 352-ND97-5V6M

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 we affirm. 

The claimant separated from his position with the employer on September 19, 2025. He filed a claim for unemployment benefits with the DUA, effective October 5, 2025, which was denied in a determination issued on November 19, 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 20, 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 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 had not dozed off while in the employer’s operating room and had not violated the employer’s expectations that he act professionally in the operating room or that he change out of his scrubs when leaving the facility, 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. From August 12, 2025, through September 19, 2025, the claimant worked full-time as a certified surgical technologist for the employer, a cataract and laser surgery medical practice. 
2. The claimant reported to the employer’s lead surgical technician (the LST). 
3. Throughout his initial employment, the employer believed the claimant was not making adequate progress because the employer would often need to remind the claimant of something they had previously told him. 
4. Throughout his employment, the claimant always performed his job duties to the best of his ability. 
5. The claimant was aware that the employer expected him to remain awake while working in the operating room and not throw instruments across the room. He was also aware that he was not supposed to enter the operating room after a smoke break. 
6. On September 9, 2025, the claimant was setting up the table with another surgical technologist (ST2). While working quickly, the ST2 accidentally stuck the claimant in the finger with a needle. The claimant jerked backwards in reaction, saw the needle, pulled it from his finger and dropped it on the floor. The claimant had an allergic reaction to the medication in the needle, requiring him to go to the emergency room. 
7. The employer has a policy that requires employees to change their scrubs and shoes before entering an operating room if an employee goes outside wearing their scrubs and operating room shoes. Employees are not allowed to wear their outside shoes in the operating room. 
8. The claimant changed his scrubs every time he went outside before entering the operating room. 
9. On one occasion, the claimant went outside and forgot to change his shoes when he came back in. The LST pointed this out to him, and the claimant immediately changed his shoes. 
10. On September 17, 2025, the claimant participated in about 7 or 8 procedures. LST, who floats between the employer’s 2 operating rooms, participated in about half of the procedures in which the claimant participated. 
11. During a procedure on September 17, 2025, the LST observed the claimant’s eyes closing as his head moved forward into the oculars of the microscope. The claimant was observed doing this twice, each time lasting a few seconds. The LST believed the claimant was dozing off. 
12. Later that day, the LST asked the claimant to meet with her and the director of nursing (the DON). During that meeting, the LST informed the claimant that she had heard of several instances where he was dozing in the operating room and that she observed it once herself. The claimant became angry over the allegation and denied ever dozing off in the operating room. 
13. The claimant also raised concerns about which he was dissatisfied at work; including the fact that the needle with which he was stuck on September 9, 2025, was mislabled as to its contents and that instruments were not properly cleaned between procedures. 
14. The DON and the LST believed the claimant was confrontational during the meeting and sent him home following the meeting so they could investigate this further. 
15. On or about September 19, 2025, the claimant received a termination letter from the employer, terminating him effective September 19, 2025. The letter stated in part… “We have determined that your performance and conduct have not met the standards expected for your role. Specifically, there have been multiple concerning incidents, including dozing off in the operating room, throwing an instrument, displaying argumentative behavior, and a lack of progress in orientation. These behaviors indicate that the position is not a good fit…” 
16. On September 19, 2025, the employer discharged the claimant because of his behavior in the meeting on September 17, 2025. 
17. At no time throughout his employment was the claimant issued any warnings or discipline. 
18. At no time did the claimant throw a needle or any other instrument across the room. 
19. At no time did the claimant doze or fall asleep while in the operating room. 

Credibility Assessment: 

At first glance, the claimant’s testimony in the first hearing contradicted his testimony in the remand hearing, where he was more forthcoming than the total denials in the first hearing, but that is not actually the case.

During the initial hearing, the claimant was asked about the allegations in the termination letter using the terminology in that letter, having no other description to rely on, and thus, denied them. During the remand hearing, the employer’s LST described the allegations in greater detail, and the claimant was able to fully address the allegations in a more fulsome manner, now knowing exactly what the employer was referring to in the termination letter. 

For example, while the claimant denied throwing a needle or instrument across the room during both hearings, he was able to describe what happened when he was accidentally stuck with a needle once he understood what the employer was referencing during the remand hearing. It is also noted the LST was not present during that incident and thus has no firsthand knowledge of what happened. Additionally, when the claimant testified during the initial hearing that he always wore his own clothes and shoes to and from work, he readily admitted not changing his shoes on one occasion when he came in from outside and went to the operating room during the remand hearing once he heard the LST describe what she actually was referring to. The LST admittedly never saw the claimant enter the operating room from outside without changing his scrubs. Lastly, during the initial hearing, the claimant denied dozing off in the operating room at any time. At the remand hearing, the LST described what she witnessed on September 17, 2025, – the claimant’s head going forward into the oculars of the microscope, and his eyes closing for a few seconds. The claimant asserted and credibly explained that on that occasion, he moved his head toward the microscope only to look into it, and though he may have closed and opened his eyes quickly, he never nodded off or fell asleep. 

Finally, the LST testified that the meeting on September 17, 2025, was not meant to be a disciplinary meeting and the claimant would not have been discharged for any of the allegations, had he not been angry and confrontational during that meeting. When asked directly, “Was the claimant ultimately terminated for the dozing in the operating room or because of unsatisfactory job performance and not progressing in his orientation”, the LST candidly testified that the reason for his discharge was his behavior in the meeting on September 17, 2025, and not for any of the allegations in the termination letter. 

The LST admitted that the claimant was not generally argumentative at work, but described his behavior during the September 17, 2025, meeting as angry and confrontational. Although the claimant did raise concerns and dissatisfactions about some of the conditions he experienced at work during that meeting in response to the accusation of his dozing, he testified that he was not belligerent when doing so. While his actual demeanor in the meeting therefore remains unknown, it is noted that the claimant always displayed a calm demeanor when testifying in both sessions of his hearing, not displaying any anger when confronting the employer’s direct allegations against him during the second day of the 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. After such review, the Board adopts the review examiner’s consolidated findings of fact except as follows. We reject the portion of Consolidated Finding 12 that states that the claimant became angry during the September 17, 2025, meeting as inconsistent with the review examiner’s credibility assessment. 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). 

As a threshold matter, to meet its burden under G.L. c. 151A, § 25(e)(2), the employer must show that the claimant engaged in some misconduct which either violated an employer policy or expectation. Although the employer identified multiple issues that influenced its decision to terminate the claimant’s employment, the lead surgical technician confirmed in her testimony that the claimant was ultimately discharged because she and the employer’s director of nursing believed that the claimant was acting confrontational when they met to discuss performance issues on September 17, 2025. Consolidated Findings 15 and 16. 

Following remand, the review examiner rejected as not credible the employer’s assertions that the claimant had been angry and confrontational in the September 17, 2025, meeting. Instead, she stated in her credibility assessment that the claimant’s actual demeanor in the meeting was unknown. Although not fully articulated in this assessment, we can reasonably infer that the review examiner concluded that there was not substantial and credible evidence to support a finding that the claimant had been angry and confrontational in the meeting. 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). Following our review of the record, and in light of certain inconsistencies in the evidence presented by the employer, we believe that the review examiner’s assessment is reasonable in relation to the evidence presented.

Given the review examiner’s credibility assessment and corresponding lack of findings relating to the claimant’s alleged angry and confrontational behavior in the meeting on September 17, 2025, the employer has not shown by substantial and credible evidence that the claimant acted contrary to an employer policy or expectation when he met with his supervisor and the employer’s director of nursing on that day.

We, therefore, conclude as a matter of law that that the employer has failed to demonstrate that the claimant’s discharge was due 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. The claimant may not be disqualified under G.L. c. 151A, § 25(e)(2).  

The review examiner’s decision is affirmed. The claimant is entitled to receive benefits for the week ending October 11, 2025, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision – April 27, 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.

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