Board of Review Decision 352-NDHT-RVFN

The claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest pursuant to G.L. c. 151A, § 25(e)(2), when he used inappropriate and unprofessional behavior in communications with a client’s dispatcher. However, at the time of his separation from the instant part-time employer, he was unaware he was going to be laid off from his full-time primary job. In light of the DUA’s constructive deduction regulations, the disqualifying separation from his subsidiary part time employer does not render him ineligible for benefits.

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Issue ID: 352-NDHT-RVFN

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 we affirm in part and reverse in part. 

The claimant separated from his position with the employer on August 9, 2025. He filed a claim for unemployment benefits with the DUA, effective August 27, 2025, which was denied in a determination issued on November 25, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits attended by both parties, the review examiner affirmed the agency’s initial determination and denied benefits in a decision rendered on March 24, 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). Our decision is based upon our review of the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, and the claimant’s appeal.

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant was discharged for deliberate misconduct in wilful disregard of the employing unit’s interest when he ignored the client’s dispatcher’s call and swore at him via text message, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

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

1. From May 17, 2024, to August 9, 2025, when he was discharged, the clamant worked parttime as a security guard for the employer, a security services company. 
2. The claimant worked as security guard for the employer’s client. The claimant worked Fridays, from 10:00 p.m. to 6:00 a.m. The claimant’s hourly rate was $19.75. 
3. The claimant’s direct supervisor was the employer’s site supervisor. 
4. The employer maintains written rules and regulations which prohibit employees from engaging in unprofessional or inappropriate conduct towards clients, including “not responding to texts, emails or phone calls”, and “any inappropriate comments such as swearing, refusing or being dismissive of orders.” Employees who violate the rules will be subject to disciplinary action up to and including termination. 
5. The employer expected employees to act in a professional and respectful manner at work. 
6. The purpose of the written rules and policies and the employer’s expectation is to maintain a pleasant and professional environment for employees and clients. 
7. The rules and regulations are contained in the employee contract. The claimant signed the employee contract on May 17, 2024. 
8. The claimant knew the employer expected him to act in a professional and respectful manner. 
9. The claimant was responsible for touring the client’s facility at regular intervals. During his tour, the claimant was required scan specific checkpoints and electronically submit photos of the property to the client “tour report”. 
10. On or about July 19, 2025, the claimant and the client’s dispatcher had a disagreement, and the employer’s owner was notified. The owner told the claimant that he should not argue with the dispatcher. 
11. On August 9, 2025, the client’s dispatcher observed that a security checkpoint on the claimant’s tour had not been scanned for one hour. The dispatcher reviewed the claimant’s electronic tour report, and the claimant had not scanned the checkpoint. The dispatcher reviewed the claimant’s reports from earlier tours, and the photos were obstructed or not clear. The dispatcher called the claimant via radio multiple times and the claimant did not respond. At 4:13 a.m., the dispatcher asked the claimant to call him via text. The claimant told the dispatcher he did not need to talk to the dispatcher, that he did not respond to the dispatcher’s previous calls intentionally, that he did not have to answer dispatch calls from him, that he refused to talk to him, that the dispatcher was “always doing this shit”, that the employer’s owner hated the dispatcher, and the dispatcher was always “Kissing everyone off because you don’t know how to perform your job.” 
12. The dispatcher filed an “Infraction Report”, which contained the text correspondence and unclear photos, at 4:47 a.m. and reported the claimant’s misconduct to the owner. 
13. On August 9, 2025, the client terminated the claimant’s assignment. 
14. On August 9, 2025, the owner determined the claimant’s conduct violated the instant employer’s rules and expectations of professionalism and decided to discharge the claimant. 
15. On August 9, 2025, the owner discharged the claimant over the phone. 
16. The claimant did not quit his position with the employer. 
17. On August 27, 2025, the claimant filed a claim for unemployment benefits effective August 24, 2025. 
18. Beginning in March 2025, the claimant worked full-time as a financial analyst for a different employer (primary employer). The claimant worked Monday through Friday from 8:00 a.m. to 5:00 p.m. The claimant’s hourly rate of pay was $54.50. The claimant filed his claim because he was laid off from his full-time job on August 22, 2025.

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, we disagree with the review examiner’s decision to subject the claimant to a full disqualification from the receipt of benefits. 

In this case the review examiner found that the employer discharged the claimant, because he violated the employer’s rules prohibiting insubordination and unprofessional conduct. See Findings of Fact 4, 5, 11, and 14. Implicit in Finding of Fact 14 is that the review examiner rejected as not credible the claimant’s testimony that he quit because he was being mistreated by the employer’s client’s dispatcher. 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, and in light of certain inconsistencies in the evidence presented by the claimant, we believe that the review examiner’s assessment is reasonable in relation to the record.

Because the review examiner found that 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 maintains written policies prohibiting employees from engaging in unprofessional or inappropriate conduct towards clients, refusing to respond to texts, emails or phone calls, and refusing or being dismissive of orders. Finding of Fact 4. However, the employer did not provide evidence showing that it discharged all other employees who had violated these policies under similar circumstances. Therefore, it has not met its burden to show a knowing violation of a reasonable and uniformly enforced policy.

We next consider whether the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. As a threshold matter, the employer must show that the claimant engaged in the misconduct for which he was discharged. 

In this case, the claimant was discharged for acting unprofessionally when corresponding with the employer’s client’s dispatcher. Finding of Fact 14. Because there was no dispute that the claimant intentionally refused to answer calls from the dispatcher and used obscenities in text messages communicating with the dispatcher, the record confirms that the claimant engaged in the misconduct for which he was terminated. Finding of Fact 11. Moreover, as the claimant conceded that he chose not to answer the dispatcher’s calls and chose to respond to the dispatcher’s texts by using profanity, his actions in so doing were 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. Goodridge v. Dir. of Division of Employment Security, 375 Mass. 434, 436 (1978). 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).

In his testimony, the claimant confirmed that he understood that the employer expected him to interact professionally with clients, co-workers, and superiors. Finding of Fact 8. We believe this is a reasonable expectation for employees, as it is intended to maintain a pleasant and professional environment for employees and clients. See Finding of Fact 6. Although the claimant maintained that the dispatcher had been rude and unprofessional to him in the past, this is not evidence of mitigating circumstances, which rendered the claimant incapable of acting in a professional manner on August 9, 2025.

We, therefore, conclude as a matter of law that the employer has met its burden to show that the claimant was discharged for deliberate misconduct in wilful disregard of the employer’s interest within the meaning of G.L. c. 151A, § 25(e)(2). However, the claimant’s disqualifying separation from the instant part-time employer does not render him ineligible for benefits.

When a claimant separates from subsidiary part-time employment under a disqualifying circumstance under G.L. c. 151A, § 25(e), we must consider whether a constructive deduction, rather than a complete disqualification from receiving unemployment benefits should be imposed. 430 CMR 4.76 provides, in relevant part, as follows:

(1) A constructive deduction as calculated under, as calculated under 430 CMR 4.78, from the otherwise payable weekly benefit amount, rather than a complete disqualification from receiving unemployment insurance benefits, will be imposed on a claimant who separates from part-time work for any disqualifying reason under G.L. c. 151A, § 25(e), in any of the following circumstances:  

(a) if the separation is:

1. from subsidiary, part-time work during the base period, and at the time of the separation, the claimant knew or had reason to know of an impending separation from the claimant’s primary or principal work; . . .

While working for the instant employer part-time, the claimant had also worked full-time for a different employer. Findings of Fact 1 and 18. Records from the claimant’s employers contained in the DUA’s electronic recordkeeping system, confirm that he also earned the most money during his base period from his full-time employer. Therefore, his full-time employer was his primary employer and his work for the instant employer was subsidiary part-time work. See 430 CMR 4.75(3). 

During the hearing, the claimant provided uncontested testimony that he was not aware that he was going to be laid off from his primary employer at the time he separated from the instant employer. Since this record indicates that the claimant did not know or have reason to know he would be laid off from his primary employer at the time that he separated from the instant part-time subsidiary employer, a constructive deduction cannot be imposed.

In Board of Review Decision 0011 4858 86 (Jun. 19, 2014), we declined to impose any disqualification at all in situations like this. We explained that 430 CMR 4.76(1)(a) is designed to penalize individuals who choose to leave gainful part-time employment knowing that they are about to lose their full-time job. We stated, “it would be an anomaly to interpret the regulation to mean that an individual who quits a part-time job without knowledge of an impending separation from his full-time work receives the even harsher penalty of a full disqualification.” Id.

We, therefore, conclude as a matter of law that, although the claimant was discharged for deliberate misconduct in wilful disregard of the employer’s interest within the meaning of G.L. c. 151A, § 25(e)(2), the claimant is not disqualified from receiving benefits because he separated from a part-time, subsidiary job with the instant employer with no knowledge of his impending separation from his full-time job. He is entitled to his full weekly benefit amount.

The review examiner’s decision is affirmed in part and reversed in part. The claimant is entitled to receive benefits for the week ending August 30, 2025, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision – May 29, 2026

1. The claimant’s testimony in this regard, while not explicitly incorporated into the review examiner’s findings, 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).

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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LSW/rh