Lycurgus v. Director of Div. of Employment Sec.

• Decision Date: 04 April 1984
• Citation: 462 N.E.2d 326,391 Mass. 623
• Parties: James LYCURGUS v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 326

462 N.E.2d 326

391 Mass. 623

James LYCURGUS v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.

¹

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Dec. 9, 1983.

Decided April 4, 1984.

Jim Hammerschmith, Northampton, for plaintiff.

George J. Mahanna, Asst. Atty. Gen., for Director of the Div. of Employment Sec.

Before WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiff appeals from a judgment of a District Court affirming a decision of the Division of Employment Security (division) denying the plaintiff unemployment compensation benefits. We affirm.

A review examiner of the division concluded that the plaintiff's discharge from work was attributable solely to deliberate misconduct in wilful disregard of the employer's interest within the meaning of G.L. c. 151A, § 25(e)(2). ² The board of review of the division (board) denied the plaintiff's application for review. A judge of the District Court on appeal remanded the case to the board for further findings. The same review examiner conducted another hearing, made further findings, and again concluded that the plaintiff's discharge was attributable solely to deliberate misconduct in wilful disregard of the employer's interest. Again the board denied the plaintiff's application for review. On appeal another judge of the District Court affirmed the board's decision. The plaintiff appeals from the action taken by the District Court.

Because the board denied the plaintiff's application for review, the decision of the review examiner is to be treated as that of the board. G.L. c. 151A, § 41(c ). We summarize the findings of the review examiner. The plaintiff worked for the employer from February 9, 1981, to May 28, 1981. The employer's attendance rules were strictly enforced with respect to new employees. During his first month at the job, the plaintiff was absent four days and late one day. On March 13, he received and signed a written warning that if he were sick or absent in the next two months, it would mean automatic probation. He was again absent March 18, and was placed on three months' probation from March 20 to June 20. He signed a probation notice stating that the consequence of an absence or lateness during his probationary period would be automatic termination. In April, the plaintiff was absent four days because of court appearances. Those absences were excused.

On May 11 the plaintiff was five minutes late returning from lunch. On May 12 he was two minutes late for work in the morning. On May 18 he returned from lunch five minutes late. On May 19 he was two minutes late for work. He was one minute late for work and five minutes late returning from lunch on May 20.

The plaintiff and his supervisor had several discussions about the plaintiff's tardiness. The supervisor suggested that the plaintiff try to start five minutes earlier in order to be on time. The plaintiff asserted that he was not required to be at work until 9 A.M. "on the dot" and there was nothing the supervisor could do about it.

On May 20 the plaintiff was given a written warning that he would be immediately terminated the next time he came to work late or returned late from lunch. The plaintiff admitted to the review examiner that he understood that warning.

The review examiner found that the plaintiff usually allowed himself one minute to return to the work site after lunch. His lunch period was forty-five minutes long. The plaintiff did not own a watch and he relied on the office clocks. On May 28, his last day of work, the plaintiff was lounging in the sun after lunch. He was watching a clock in that area. He estimated that he could reach his work site in five or ten seconds. According to the clock where he was lounging, the plaintiff started back to work a minute before he was required to be there. However, when he reached the work site he was two minutes late according to the clock there, and he was discharged.

The review examiner also found as follows: "From the testimony and written evidence presented at the hearing, it is found that the claimant was discharged for absenteeism and tardiness; that he had received a 60 day written warning, 90 days' probation, and a final written warning that he would be terminated immediately the next time he was tardy. It is further found that efforts by his supervisor to correct the claimant's attendance problems were met with a rebellious response by the claimant; that he deliberately remained away from work until the last minute, although fully aware that he was on the brink of termination.

"Since the claimant had been previously warned and was on notice of potential discharge, he knew he was in a precarious position and his actions were in wilful disregard of the employer's interests. Therefore, it is finally found that the claimant's discharge from work was attributable solely to deliberate misconduct in wilful disregard of the employing unit's interests within the meaning of [G.L. c. 151A, § 25(e ) (2) ]."

The plaintiff presents three arguments: (1) the "administrative record does not support the conclusion" that his discharge from employment was attributable "even in part" to deliberate misconduct in wilful disregard of his employer's interest, (2) a discharged employee is not disqualified from receiving unemployment benefits unless the discharge is attributable solely to deliberate misconduct in wilful disregard of the employer's interest, and the administrative record would not support that finding here, and (3) although the review examiner's decision states that he found that the plaintiff's "discharge from work was attributable solely to deliberate misconduct in wilful disregard of the employing unit's interests," the decision is fatally deficient because it fails to make findings which adequately support that conclusion.

We confront the plaintiff's third argument first. The plaintiff states that the review examiner found that the plaintiff "was discharged for absenteeism and tardiness." The plaintiff asserts that the evidence showed that many of the absences and incidents of tardiness were due to factors that were beyond his control, and therefore were not legitimate grounds for a denial of benefits. The significance of the finding that the plaintiff was discharged for absenteeism and tardiness is said to be that that finding negates the conclusion that the plaintiff was discharged solely for his conduct on May 28. The plaintiff argues that in the absence of a specific finding on the May 28 incident or of a finding that all the absences and incidents of tardiness were deliberate and in wilful disregard of the employer's interest, the review examiner's conclusion could have resulted in a denial of benefits because of conduct for which the law does not disqualify him. The argument is that without adequate subsidiary findings, the mere conclusion of the review examiner, adopting the statutory language, that the plaintiff's discharge "was attributable solely to deliberate misconduct in wilful disregard of the employing unit's interests," should not be enough to bar him from recovery.

Surely, a review examiner's decision is unacceptable if it does not contain sufficient subsidiary findings to demonstrate that correct legal principles were applied. Smith v. Director of the Div. of Employment Sec., 376 Mass. 563, 565-566, 382 N.E.2d 199 (1978). However, we are content that that requirement was met here and that the review examiner found that the plaintiff's discharge from work was attributable...