Fanion v. Director of Div. of Employment Sec.

• Decision Date: 15 May 1984
• Citation: 464 N.E.2d 69,391 Mass. 848
• Parties: Jo-Ann E. FANION v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 69

464 N.E.2d 69

391 Mass. 848

Jo-Ann E. FANION v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.¹

Supreme Judicial Court of Massachusetts Worcester.

Argued Jan. 9, 1984.

Decided May 15, 1984.

Andrew L. Mandell, Worcester (Jane Inez Colbath, Worcester, with him), for plaintiff.

Andrew C.J. Meagher, Worcester, for Guaranty Bank & Trust Company.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

The claimant challenges the determination of the director of the Division of Employment Security (division) disqualifying her from unemployment benefits because she voluntarily resigned without good cause attributable to the employing unit. See G.L. c. 151A, § 25(e )(1). The board of review (board) of the division affirmed as did a District Court judge. Pursuant to G.L. c. 151A, § 42, the case was reported to this court. We affirm.

We summarize the facts. The claimant worked at Guaranty Bank and Trust Company (bank) from April 29, 1980, to September 11, 1981. She was hired as an encoder on the night shift and worked in that position until April, 1981, when her supervisor offered her a promotion to the position of reconciliator. The supervisor explained that she would have to undergo six months' training before the promotion took effect, after which she would receive a wage increase. The amount of the increase was not set forth.

During the fifth month of the training period, the claimant requested and received specific details of the wage increase that she could expect. She was disappointed with the size of the increase and sought to be reassigned to her old job as an encoder. The position was unavailable. She was offered the opportunity to seek another job at the bank, but none was available during the night shift. She resigned effective September 11, 1981.

The review examiner found that the claimant's resignation was "voluntary [and] without good cause attributable to the employer, within the meaning of Section 25(e)(1) of the [Massachusetts Employment Security] Law." After the board denied the claimant's application for review, see G.L. c. 151A, § 41, the claimant petitioned a District Court, arguing that the decision was erroneous because her resignation was the result of severe headaches and extreme nervousness. Prior to the District Court hearing, the claimant subpoenaed bank records pertaining to the number of encoding jobs vacated and filled between March and December, 1981. The bank moved to quash the subpoena. The motion was allowed. ²

On the day of the court hearing, the claimant applied for leave to present additional evidence pursuant to G.L. c. 30A, § 14(6), claiming that, because she was not represented by counsel at the agency hearing, she was too nervous to articulate her position and present her version of the facts to the review examiner. The claimant made an offer of proof that if allowed to present additional evidence, she would prove that the bank misled the review examiner by stating that no encoding positions were available when the claimant sought to return to that position. She also would prove that there were "physical difficulties which led to her termination." The judge denied the claimant's application for leave to present additional evidence, affirmed the decision of the board and, pursuant to G.L. c. 151A, § 42, filed a report.

On appeal, the claimant argues that she should have been allowed to present additional evidence, see G.L. c. 30A, § 14(6), ³ on whether her physical difficulties were causally related to the new job and whether there was an encoder position available at the time she resigned. The claimant's sole reason for failure to present this evidence in the proceeding before the agency is that she was not represented by counsel and therefore was unable to put the evidence in a form acceptable to the review examiner. The record does not bear out her claim. The record indicates that the claimant had ample opportunity to present evidence to the review examiner ⁴ and to question her supervisor, ⁵ the witness representing the employer.

At the hearing, the claimant never mentioned severe headaches, extreme nervousness, or any other medical problems caused by working as a reconciliator. Rather, she said that had the wage increase been as large as she had expected, she would have remained on the job. The claimant's first mention of "emotional and physical difficulties which rendered her unable to perform her assigned tasks without great physical pain" occurred in her petition for review before the District Court. ⁶ Further, at the agency hearing, the claimant made no effort to dispute her supervisor's testimony that there were no encoder positions available. The claimant's request amounts to no more than a request to retry her claim on a different theory and with counsel. ⁷ This she cannot do.

To the extent that the claimant asserts that the record is deficient because it does not reflect the reasons she left work, the record's shortcomings can be laid to her fault and neglect. The claimant has not shown that "there was good reason for failure to present [the evidence] in the proceeding before the agency." G.L. c. 30A, § 14(6). The judge correctly denied the motion for leave to present additional evidence.

The record also reflects that the claimant resigned because she did not think that the salary she was receiving as a reconciliator was commensurate with the pressures inherent in the job. "Such disappointment does not rise to the level of good cause." Sohler v. Director of the Div. of Employment Sec., 377 Mass. 785, 789, 388 N.E.2d 299 (1979). Compa...