Constantineau v. Dir. of the Dep't of Unemployment Assistance & Another

• Decision Date: 19 July 2021
• Docket Number: 20-P-486
• Parties: Roland M. CONSTANTINEAU v. DIRECTOR OF the DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1102

172 N.E.3d 431 (Table)

Roland M. CONSTANTINEAU

v.DIRECTOR OF the DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.¹

20-P-486

Appeals Court of Massachusetts.

Entered: July 19, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (employee) worked as a driver for T. Jepson & Son, LLC (employer), a timber-harvesting and land-clearing company. His job required that he hold a valid commercial driver's license (CDL). The employee's license was suspended after an incident where he apparently had driven under the influence of alcohol. He therefore lost his job. The Department of Unemployment Assistance (DUA) denied the employee unemployment benefits on the grounds that he had not taken steps to manage his alcoholism before the incident. We affirm the District Court judgment upholding that denial.

Background. 1. Statutory background. Generally, an employee is not entitled to unemployment benefits if he leaves a job "voluntarily." G. L. c. 151A, § 25 (e ) (1). Where, as here, an employee's own actions cause him to be disqualified from holding his position, the termination is considered voluntary. See Rivard v. Director of Div. of Employment Sec., 387 Mass. 528, 528-529 (1982). Cf. Olmeda v. Director of Div. of Employment Sec., 394 Mass. 1002, 1003 (1985). However, a statutory exception provides that even an employee who left his job voluntarily can obtain unemployment benefits if he can establish "to the satisfaction of the commissioner that his reasons for leaving were of such an urgent, compelling and necessitous nature as to make his separation involuntary." G. L. c. 151, § 25 (e ). The case before us turns on whether DUA improperly declined to give the employee the benefit of that exception.

2. The employee's history. We briefly summarize the findings of the DUA review examiner, which the board of review adopted wholesale, and which the employee does not contest.³

For over forty years, the employee has suffered from alcoholism. His alcohol consumption escalated after his father died in or around 2015. In the last seven months of his employment, he typically consumed "two to three beers, and two to three pints of brandy each day, after work." In February of 2018, he was arrested and charged with operating under the influence ("OUI") while driving his personal vehicle. As a result, his license was suspended for thirty days. He continued drinking alcohol after that arrest.

One day in June of 2018, the defendant drove in his personal vehicle outside of work hours while drinking a pint of brandy and two or three beers. He drove erratically, ignored one police officer's instruction to stop, and stopped only when a different police officer used his vehicle to block the road the employee was driving down. After exiting his vehicle, he "started a physical altercation with" the police officers, precluding the administration of field sobriety tests.

The officers arrested the employee and transported him to a local police station, where he agreed to take a breathalyzer test. Although he appeared to be blowing air out of his mouth, no air was entering the breathalyzer's mouthpiece. The officer administering the test determined that the employee was refusing to submit to the test, and suspended the employee's driver's license for 180 days pursuant to G. L. c. 90, § 24 (1) (f ) (1).⁴

The next day, the employee told his employer that, due to the suspension of his license, he could no longer work as a driver.⁵ The employee entered an alcohol detoxification

program that same day, and was discharged two weeks later. At the time of the evidentiary hearing before DUA, he was attending Alcoholics Anonymous meetings on a weekly basis.

3. Proceedings before DUA. The employee filed an unemployment insurance claim on June 29, 2018, claiming that he had been terminated due to a lack of work. Upon inquiry from DUA, the employer explained the circumstances of the employee's departure. As a result, DUA concluded that the employee was not entitled to benefits and sent him a notice to that effect. According to the notice, the employee's separation from the employer was "considered voluntary and without good cause attributable to the" employer, because "[t]he loss of your drivers [sic] license due to fault on your part concerning a breathalyzer test resulted in your separation from work."

The employee timely appealed his disqualification. A DUA review examiner held a two-day evidentiary hearing. The employee was represented by counsel. After the hearing, the review examiner affirmed the denial of benefits.

The employee appealed again, this time to DUA's board of review. In March, the board affirmed the review examiner's decision that the employee had left his job voluntarily and was not entitled to benefits. In relevant part, the board held that "to render the separation involuntary due to urgent, compelling necessitous circumstances, the claimant would have to show that before the incident that caused him to lose his job, he knew he was an alcoholic and had tried, but was not successful at controlling the disease." Specifically, the board ruled that the employee had failed to show that he had made "sincere efforts to treat or otherwise control his alcohol consumption so that it would not adversely affect his employment."

Then, pursuant to G. L. c. 151A, § 42, the employee appealed the board's decision to the District Court. In December of 2019, a District Court judge affirmed the board of review. This appeal followed.

Standard of review. "We do not act as a fact finder in employment security cases, because it remains ‘the agency's responsibility to weigh the evidence, find the facts, and decide the issues.’ " Norfolk County Ret. Sys. v. Director of Dep't of Labor & Workforce Dev., 66 Mass. App. Ct. 759, 764 (2006), quoting Manias v. Director of Div. of Employment Sec., 388 Mass. 201, 205 (1983). "Our limited function is to determine whether the board of review applied correct legal principles in reaching its decision, whether the decision contains sufficient findings to demonstrate that the correct legal principles were applied, and whether those findings were supported by substantial evidence within the meaning of G. L. c. 30A, § 14 (7) (e )." Norfolk County Ret. Sys., supra at 764, quoting Guarino v. Director of Div. of Employment Sec., 393 Mass. 89, 92-93 (1984).

Discussion. Once the employee lost his CDL license, he became disqualified from his position as a driver. Where he lost his CDL license as a result of his own actions, his termination is considered "voluntary" under the case law.⁶ See Olmeda, 394 Mass. at 1003 ; Rivard, 387 Mass. at 528-529. The employee effectively acknowledged this point at oral argument.⁷ Thus, the employee is disqualified from receiving unemployment benefits unless he can show that his alcoholism rendered his departure from work so "urgent, compelling and necessitous ... as to make his separation involuntary."⁸ G. L. c. 151A, § 25 (e ). DUA determined that his departure was not so urgent, compelling, and necessitous. We agree.

"Normally, a worker who anticipates a legitimate absence from work can take steps to preserve her employment. When a worker fails to take such steps and severance results, it is the worker's own inaction rather than compelling personal reasons that causes the leaving." Dohoney v. Director of Div. of Employment Sec., 377 Mass. 333, 336 (1979). Thus, a "[p]rominent" factor in whether an employee's "personal reasons for leaving a job are so compelling as to make the departure involuntary is whether the [employee] had taken such ‘reasonable means to preserve her employment’ as would indicate the [employee's] ‘desire and willingness to continue her employment.’ " Norfolk County Ret. Sys., 66 Mass. App. Ct. at 766, quoting Raytheon Co. v. Director of Div. of Employment Sec., 364 Mass. 593, 596-598 (1974). This analysis applies in cases of medical conditions "that legitimately require absence from work," Dohoney, supra at 335-336, such as alcoholism.

Here, the employee was arrested for an OUI in February, months before the incident that led to his license suspension. Nonetheless, the review examiner found no evidence that the employee took any steps to manage his alcoholism between the February OUI and the June incident. Given these unchallenged factual findings, we conclude that the employee has not shown that he took "such ‘reasonable means to preserve h[is] employment’ as would indicate [his] ‘desire and willingness to continue h[is] employment.’ " Norfolk County Ret. Sys., 66 Mass. App. Ct. at 766, quoting Raytheon Co., 364 Mass. at 596-598. In other words,...