Board of Review Decision 352-NJ8L-K7FH

Where an employer discharged a developmental specialist for driving at a reckless speed in a company vehicle with a client, held it was due to deliberate misconduct in wilful disregard of the employer’s interest. He is ineligible for benefits pursuant to G.L. c. 151A, § 25(e)(2).

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Issue ID:  352-NJ8L-K7FH

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 was discharged from his position with the employer on November 7, 2025. He filed a claim for unemployment benefits with the DUA, effective November 2, 2025, which was approved in a determination issued on February 4, 2026. 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 26, 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, is 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 provide the claimant with an opportunity to present testimony and offer other evidence. 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 employer discharged the claimant because of an instance of unsafe and reckless driving while transporting a client, is supported by substantial and credible evidence and is free from error of law, given the record after the remand.

Findings of Fact

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

1. From March 24, 2024, until October 25, 2025, the claimant worked full-time as a Developmental Specialist for the employer, a human services company for adults with disabilities and mental health issues.
2. The claimant reported directly to one of the employer’s program directors (PD1). 
3. The employer maintained Safe Driving Rules as part of their [Employer] Maintenance and Safety Policies and Procedures Manual (the policy) in order to ensure that they are keeping staff, clients and the community safe when staff are transporting clients in company-owned vehicles. The policy read, in relevant part, “All [Employer] drivers must use good judgment when operating a vehicle on behalf of [Employer] and persons served. [Employer] assumes and directs that drivers will operate prudently and obey all required traffic rules. Failure to drive safely may result in corrective action up to and including termination. Some specific safety rules are outlined below: • Always drive within the speed limit and follow all applicable laws. • Always refrain from any aggressive driving behavior, including speeding or tailgating.” 
4. The employer retains discretion as to the discipline to be imposed for a violation of the policy.
5. A copy of the policy was given to the claimant during his training and new hire orientation.
6. The claimant received a certificate for completing the vehicle safety training on March 17, 2025.
7. The claimant was aware that the employer expected that all employees would follow the policy, drive safely, and abide by posted speed limits. In an emergency when driving, the employer expected its employees to pull over to a safe spot and call for help, if needed, after pulling over.
8. The employer has these expectations to keep the clients, the employees, the vehicle and the community safe, as well as to keep their insurance premiums low and to avoid traffic tickets.
9. The employer’s vehicles are equipped with a GPS monitor tracking device that sends a speed alert to the fleet manager and all program directors, as well as the human resources manager, whenever a car is driven at 90 miles per hour or more.
10. On October 25, 2025, the claimant was driving a company-owned vehicle, transporting a client to the gym on a road with a 65 miles per hour speed limit.
11. While driving the client, the claimant received a call from a co-worker that he needed the car to transport another client to the hospital. The claimant, who had been driving in the left lane, accelerated to pass the other cars and move into the right lane, so he could take the next exit off the highway.
12. The GPS monitor showed that the claimant hit a high speed of 106 miles per hour, and an average speed of 94 miles per hour over a 24 second period of time. This triggered a speed alert to immediately go to the fleet manager, all program directors and the human resources manager.
13. When the claimant returned to the employer’s facility on October 25, 2025, another program director (PD2) spoke with him about the speed alert she had received. The claimant confirmed that he had a client with him in the vehicle at the time and stated that he did not realize he had been speeding.
14. When the human resources manager (the HR mgr) arrived at work on October 27, 2025, she saw the speed alert and began an investigation into what happened. The HR mgr also sent an email to the claimant, telling him that he was suspended pending the investigation.
15. After speaking with PD2 and confirming that the claimant was driving the vehicle at the time of the speed alert and that there was a client in the vehicle with him at the time, the HR mgr reviewed the timeline on the GPS monitor. The HR mgr then spoke with the claimant over the phone. The claimant again confirmed he was driving and said he might have been speeding because he was on a highway but did not realize he was doing so. The claimant denied there was any emergency at the time; he did not mention that the client was pushing his seat or that he was uncomfortable and distracted by the client.
16. The claimant had not received any prior warnings or discipline while he was employed by the employer. 
17. Because the unsafe driving incident involving the claimant also involved a client, the employer had to file a report with the Department of Developmental Services, which could have led to a possible loss of funding.
18. On November 7, 2025, the HR mgr and PD2 discharged the claimant via a Zoom meeting because of speeding and reckless driving with a client in the vehicle on October 25, 2025.
19. On November 17, 2025, the claimant filed a claim for unemployment benefits, effective November 2, 2025.
20. In questionnaires submitted to the Department of Unemployment Assistance (DUA), the claimant stated that he was trying to get off the road because the client became agitated and was pushing his seat, making it uncomfortable and distracting.

Credibility Assessment: 

The claimant’s testimony is not credible, in that he was contradictory both during the hearing and between his hearing testimony and other times he was asked about the incident. At one point in the hearing, he admitted that, although he knew the employer required employees driving company vehicles, especially when they had a client in the vehicle, to obey all traffic rules and not to exceed the speed limit, he did not obey the speed limit while transporting a client in a company vehicle on October 25, 2025, and that there were no conditions that day that allowed him to disobey the speed limit. At other times in his testimony, the claimant testified that he did not realize he was speeding, although he testified that he did not dispute the GPS readings showing he was driving between 94 and 106 miles per hour. It is also not credible that someone driving at that rate of speed would not realize they were speeding, knowing the speed limit was 65 miles per hour. The claimant admitted that he accelerated to pass the other cars when he had to go from the left lane to the right lane (so he could exit the highway) but claimed he was not speeding in doing so, yet at another point in his testimony, he admitted that “I sped a little in doing so.” 

The claimant has given different explanations for speeding at different times. In his response to the fact-finding questionnaire, he stated it was because the client became agitated and was pushing his seat, making him uncomfortable and distracted. Yet, during the hearing, the claimant mentioned getting a call from a colleague who needed the vehicle to transport another client, causing the claimant to need to immediately get off the highway so he could get back to the residential home and turn the vehicle over to his colleague, something he did not mention in his response to the fact-finding questionnaire or during the investigation when he spoke with the HR mgr. When he spoke with the HR mgr during the investigation of the speeding incident, he did not mention there was any emergency, did not mention that he was distracted as a result of the client pushing his seat. The first time he mentioned accelerating to cross lanes and exit the highway was during his testimony; he did not mention that in his response to the fact-finding questionnaire or during his interview with the HR mgr. The claimant also mentioned for the first time during the hearing that the pedal on this vehicle was not as stiff as the pedal on other vehicles he had driven, which might have accounted for his speeding. 

The employer, on the other hand, gave consistent testimony that was supported by the GPS tracking information. Both the program director with whom he spoke when he returned the vehicle (PD2) and the HR mgr confirmed that the claimant said he did not realize that he was speeding. The HR mgr, who learned about the incident on October 27, 2025, immediately began conducting an investigation of the incident, speaking with the fleet manager and PD2, as well as the claimant, confirming that it was the claimant who was driving the vehicle at the time the GPS was triggered to send a speeding alert, and asking the claimant for his side of what happened. 

It is noted that the HR mgr testified that the claimant spoke English at all times while at work, yet he requested and was provided a Haitian Creole interpreter throughout the hearing and the documents sent to him by the DUA are in Haitian Creole. Thus, it is not a case of the claimant misunderstanding what was being asked of him during the hearing. I do note that a few times during the hearing, the claimant would start to answer a question before the interpreter was done or answer in English, thus supporting the HR mgr’s position that the claimant does understand and speak English.

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 believes that the review examiner’s credibility assessment is reasonable in relation to the evidence presented and adopts the review examiner’s consolidated findings of fact except as follows. We reject Consolidated Finding 11, as it is inconsistent with the review examiner’s credibility assessment. We also agree with the review examiner’s legal conclusion that the claimant is ineligible for 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 fired the claimant for speeding and reckless driving, in violation of its Maintenance and Safety Policies and Procedures Manual. See Consolidated Findings 3 and 18. The employer’s Safe Driving Rules provides that employees who fail to drive safely may receive “corrective action up to and including termination.” See Consolidated Finding 3. The review examiner also found that the employer retains discretion as to the discipline imposed for policy violations. See Consolidated Finding 4. Given employer’s discretion in administering discipline, the employer has not demonstrated that the claimant knowingly violated a reasonable and uniformly enforced policy.

Alternatively, the employer may show that the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. 

There is no dispute that on October 25, 2025, the claimant was driving a company owned vehicle while transporting a client. See Consolidated Finding 10. It was further undisputed that, during that time, the vehicle’s GPS monitor reported to the employer that it had reached a speed of 106 mph and maintained an average speed of 94 mph over a 24-second period. See Consolidated Findings 10 and 12. During the employer’s investigation, and at times during testimony, the claimant admitted that that he may have been speeding. See Consolidated Finding 15. Given this, we accept that, on October 25, 2025, the claimant broke the speed limit, driving in an unsafe manner, with a client in the vehicle. This establishes that the claimant engaged in the misconduct of reckless driving. 

Inasmuch as there is nothing in the record to suggest that the claimant was unaware of the 65-mph speed limit, and the review examiner did not find credible the claimant’s assertion that he did not know he was speeding, we can reasonably infer that he did so deliberately.

However, proving deliberate misconduct is not enough. To determine whether an employee’s actions constitute 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).

The claimant was aware of the employer’s expectations to refrain from driving recklessly or unsafely, which includes speeding, from his signed receipt of the employer’s policies and his completion of the employer’s vehicle safety training. See Consolidated Findings 4, 6, and 7. Such expectations are reasonable as a matter of public safety to minimize the employer’s liability, and because the employer must report incidents such as these to the Department of Developmental Services. See Consolidated Findings 8 and 17.

The next question is whether there were mitigating factors for the claimant’s 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).

For the sake of argument, mitigating circumstances may have been presented when the claimant testified that he sped to get the company vehicle to another employee to transfer a client to the hospital. See Consolidated Finding 11. However, the review examiner did not find the claimant’s testimony credible in this regard. 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). “The test is whether the finding is supported by “substantial evidence.’” Lycurgus v. Dir. of Division of Employment Security, 391 Mass. 623, 627 (1984) (citations omitted). “Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion,’ taking ‘into account whatever in the record detracts from its weight.’” Id. at 627–628, quoting New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 466 (1981) (further citations omitted). 

In her credibility assessment, the review examiner notes that the claimant did not provide this reason in his fact-finding questionnaire to the DUA or during the employer’s investigation. She further detailed the inconsistent explanations that the claimant provided for speeding, finding them contradictory throughout the hearing and the other times that he was asked about the incident. The review examiner ultimately concluded that it is not credible to believe that the claimant was unaware that he was driving between 94 and 106 mph, and there were no conditions that day that would have allowed the claimant to disobey the speed limit. We agree. Her assessment is reasonable given the record before her. The claimant did not establish any mitigating circumstances.

We, therefore, conclude as a matter of law, that the employer has met its burden to show that it discharged the claimant for deliberate misconduct in wilful disregard of the employer’s interest within the meaning of G.L. c. § 25(e)(2). 

The review examiner’s decision is affirmed. The claimant is denied benefits for the week beginning November 8, 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

1. While not explicitly incorporated into the review examiner’s findings, the claimant’s testimony in this regard, as well as the portions of his testimony referenced below, are part of the unchallenged evidence introduced at the hearing and placed in the record. As such, they are 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). 

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)

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