Glasser v. Director of Div. of Employment Sec.

• Decision Date: 19 December 1984
• Parties: Roy M. GLASSER v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1338

471 N.E.2d 1338

393 Mass. 574

Roy M. GLASSER v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 7, 1984.

Decided Dec. 19, 1984.

Vida K. Berkowitz, Maynard, for plaintiff.

Paul J. Molloy, Asst. Atty. Gen., for Director of the Div. of Employment Sec.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

LYNCH, Justice.

The plaintiff appeals from a decision of a District Court judge affirming a decision of the director of the Division of Employment Security (division) denying the plaintiff unemployment compensation benefits. The plaintiff appeals directly to this court pursuant to G.L. c. 151A, § 42, and argues that the division's decision was based on error of law, because the review examiner (examiner) wrongly determined that the plaintiff left work due to his being convicted of a misdemeanor. The plaintiff also contends that because his separation from employment was due solely to an unlawfully excessive sentence of imprisonment, his rights to due process of law and equal protection of the laws guaranteed by the United States Constitution have been violated. We affirm the judgment of the District Court.

The plaintiff was employed as an instructor by Airco, Inc. (Airco), at its Computer Learning Center in Somerville. In December, 1981, prior to the commencement of his employment with Airco, the defendant was convicted in a nonjury trial in a District Court of threatening to commit a crime, a misdemeanor. G.L. c. 275, § 2. The plaintiff was sentenced to the maximum penalty of six months' imprisonment, and he appealed to a jury session of the District Court. Pending the jury trial, the plaintiff was incarcerated for sixty-nine days. On January 25, 1983, a jury also found the plaintiff guilty, and he was again sentenced to six months' imprisonment. Under G.L. c. 127, § 129B, and G.L. c. 279, § 33A, the plaintiff should have been credited with the sixty-nine days that he had previously served. However, the judge initially gave the plaintiff credit for only thirteen days. Airco was notified on January 26 that the plaintiff would not be returning to work. On February 11, the judge correctly reduced the plaintiff's sentence to reflect all sixty-nine days that the plaintiff had been imprisoned before trial.

The plaintiff was released on April 21, 1983, ¹ and he filed a claim for unemployment benefits with the division on April 22. On May 1, the division denied the plaintiff's application, giving as a reason that: "Your leaving of work was due to incarcerated [sic]. Such leaving is subject to disqualification under the above-cited section of the law [G.L. c. 151A § 25(e )(3)]." ² Pursuant to G.L. c. 151A, § 39(b ), the plaintiff requested a hearing on this determination, which was held on June 13, 1983. At the hearing, Airco did not appear and the plaintiff represented himself.

The examiner found that the plaintiff's loss of employment "was as a result of a conviction of a misdemeanor," and therefore that the plaintiff was not entitled to benefits because of G.L. c. 151A, § 25(e )(3). ³ the plaintiff's application for review by the division's board of review, pursuant to G.L. c. 151A, §§ 40 and 41, was denied. This decision was affirmed by the District Court judge.

The plaintiff argues that his separation from employment was the direct result not of his conviction, but of an unlawfully excessive sentence imposed upon him. The plaintiff claims that he would have been reinstated in his prior position but for the excessive sentence. Thus, it is argued, G.L. c. 151A, § 25(e)(3), should not apply, because his separation from employment was not due solely to his conviction. ⁴ We conclude that the plaintiff's argument both misconstrues the statutory language and is unsupported by the record before us.

The statute directs the division to deny unemployment compensation benefits whenever the claimant "has left work ... because of conviction" (emphasis added). G.L. c. 151A, § 25(e). in this case, the examiner's finding that "by [the plaintiff's] incarceration as a result of said conviction he left his work" cannot be, and is not, disputed. Had the plaintiff not been convicted, he would have remained an employee of Airco.

The plaintiff goes on to argue, however, that he would have been rehired by Airco following his imprisonment if his sentence, as initially determined, had not been unlawfully excessive. This argument misconstrues the statutory language. Our task is to interpret the statute according to the intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be advanced. Commonwealth v. Galvin, 388 Mass. 326, 328, 446 N.E.2d 391 (1983). Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364, 326 N.E.2d 1 (1975). Here, the statute focuses on the reason that the plaintiff initially left his employment, not on the reason why the plaintiff at a later date, was not reinstated to his previous position. ⁵

The examiner also found that the plaintiff's loss of employment "was initiated solely by his conviction of a misdemeanor." Such a finding by the examiner will be set aside only if it is unsupported by substantial evidence. See Abramowitz v. Director of the Div. of Employment Sec., 390 Mass. 168, 173, 454 N.E.2d 92 (1983); Dohoney v. Director of the Div. of Employment Sec., 377 Mass. 333, 337 n. 3, 386 N.E.2d 10 (1979). We conclude that the examiner's decision was supported by substantial evidence. ⁶

Even if we accept the plaintiff's interpretation of the statute, his cause is not advanced. It is well-settled that the plaintiff bears the burden of proving his eligibility for unemployment compensation benefits. Smith v. Director of the Div. of Employment Sec., 384 Mass. 758, 761, 429 N.E.2d 700 (1981). Sohler v. Director of the Div. of Employment Sec., 377 Mass. 785, 788 n. 1, 388 N.E.2d 299 (1979). In practice, this requirement means that the plaintiff must present whatever evidence is necessary to support his claim. See, e.g., O'Brien v. Director of the Div. of Employment Sec., 393 Mass. 482, 488, 472 N.E.2d 253 (1984) (claimant's failure to prove lack of net earnings); Smith v. Director of the Div. of Employment Sec., supra (claimant's failure to prove discriminatory treatment); Stadig v. Director of the Div. of Employment Sec., 379 Mass. 172, 174, 396 N.E.2d 702 (1979) (claimant's failure to identify statutory provision showing eligibility); Sohler v. Director of the Div. of Employment Sec., supra 377 Mass. at 788, 388 N.E.2d 299 (claimant's failure to show good cause for leaving work). Under the plaintiff's theory, then, he had the burden to prove that the judge's failure, at sentencing, to give proper credit for the time the plaintiff had already been imprisoned at least contributed to the plaintiff's loss of employment. This the plaintiff has failed to do.

Because of the judge's sentencing error, it appeared at the time of sentencing that the plaintiff would not be released until July, 1983. The examiner found that: "The employer was unable to keep the position open that long for the claimant and replaced him permanently. The employer would have replaced him temporarily if his release date was earlier." The plaintiff contends that this finding was inconsistent with the finding that his loss of employment occurred solely because of his conviction. Thus, the plaintiff argues that the case should be remanded to the division for clarification.

We see no necessary inconsistency in these two findings. The plaintiff failed to introduce any evidence showing that a permanent replacement would not have been hired if Airco knew that the plaintiff would be released in April. The examiner's finding that the plaintiff would have been replaced temporarily if his release date was earlier, even if warranted, does not satisfy the plaintiff's burden of showing that the employer would not have provided a permanent replacement if it had known that the release date was April 21 instead of in July. Indeed, there was no evidence from which the examiner could have found the latter fact. ⁷ Moreover, the examiner had before him evidence that was inconsistent with the plaintiff's argument. In Airco's reply to the division's request for separation information, Airco replied: "Resigned personal reasons." Airco provided similar information in a later statement to the division. ⁸ The responsibility for deciding the weight to be accorded conflicting evidence properly rests with the examiner. Dowd v. Director of the Div. of Employment Sec., 390 Mass. 767, 770, 459 N.E.2d 471 (1984). Keough v. Director of the Div. of Employment Sec., 370 Mass. 1, 3, 344 N.E.2d 894 (1976). His decision will not be reversed unless it is unsupported by substantial evidence. Nantucket Cottage Hosp. v. Director of the Div. of Employment Sec., 388 Mass. 1006, 1007, 446 N.E.2d 75 (1983). We hold that substantial evidence...