Norfolk County Retirement v. Dept. of Labor

• Decision Date: 19 July 2006
• Docket Number: No. 05-P-146.,05-P-146.
• Citation: 850 N.E.2d 1079,66 Mass. App. Ct. 759
• Parties: NORFOLK COUNTY RETIREMENT SYSTEM v. DIRECTOR OF The DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT & others.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

850 N.E.2d 1079

66 Mass. App. Ct. 759

NORFOLK COUNTY RETIREMENT SYSTEM v. DIRECTOR OF The DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT & others.¹

No. 05-P-146.

Appeals Court of Massachusetts, Norfolk.

Argued November 2, 2005.

Decided July 19, 2006.

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Andrew Lawlor, Norwood, for Pamela M. Masson-Smith.

Thomas W. Colomb, Quincy, for the plaintiff.

Present: LENK, DREBEN, & GREEN, JJ.

LENK, J.

After being employed by Norfolk County for sixteen years, Pamela Masson-Smith (claimant) left her job as a bookkeeper with the Norfolk County Retirement System (employer) at the end of 2002. She did so solely because of the conflict between her work hours and her child care responsibilities. Her application for unemployment benefits was initially denied by the Division of Employment and Training (division) because the division viewed her departure as having been voluntary and without good cause attributable to her employer. She appealed, and after an evidentiary hearing at which the claimant and her supervisor testified to essentially undisputed facts, the review examiner determined that the claimant was entitled to benefits because her departure from work was rendered involuntary by "urgent, compelling and necessitous reasons within the meaning of [G.L. c. 151A, § ] 25(e )(1)." The division's board of review denied the employer's application for review, thus adopting the review examiner's decision. See G.L. c. 151A, § 41(c ). The employer's appeal to the District Court met with more success, with the judge setting aside the board of review's decision as unsupported by substantial evidence. The claimant now appeals from the judge's decision.

The uncontroverted facts are these. The claimant worked as a full-time employee of the county for sixteen years, the last four as a bookkeeper for the defendant employer. She was valued as an employee who did "good work." While employed by the county, the claimant also worked nights for more than ten years waitressing at different restaurants.

In connection with the birth of her first child, the claimant requested and was granted a paid six-month maternity leave, which began November 18, 2001. She returned to her job part-time in April, 2002, six weeks earlier than required, in order to accommodate her employer's needs; she worked two days per week until mid-May, when her maternity leave was exhausted. For a brief time after that, she resumed her former full-time schedule (forty hours per week, Monday through Friday, 8:00 A.M. to 4:00 P.M.) but could not sustain it. Because of child care responsibilities for her six month old daughter, she asked for a three day per week schedule. The employer reluctantly acquiesced on a temporary basis, choosing to pay the claimant as a full-time employee while deducting two days a week from her accrued vacation time. In the fall, when the claimant's accrued vacation time was nearly used up, the employer advised her that she would soon be required to return to a full-time schedule.

The claimant told her employer that she could not work her former full-time schedule because she was unable to find suitable day care for her baby for more than three days a week. Her husband was a self-employed electrician working days who was unavailable until late in the afternoons to care for their child. Her mother and mother-in-law also worked, as did close friends, and all were unavailable. The claimant's sister was willing to watch the baby but, because of her own child care obligations and pregnancy, could not do so more than three days a week. The claimant also looked into commercial day care,² but in addition to being unable to find affordable care, she did not want to put her then ten month old child in care of that type: "She was too little." In addition, the claimant had a one-hour commute each way between her home in Mendon and her job in Canton.

The claimant offered to work three days a week at her employer's office and two other days from home, or in the evenings, or on weekends. The employer declined. Feeling that she "had to leave" but "didn't want to leave" her job so that she could take care of her child, the claimant gave her employer six weeks' notice and left on November 29, 2002.³

In concluding that the claimant was entitled to benefits under G.L. c. 151A, § 25(e )(1), the review examiner reasoned as follows:

"The claimant was not discharged. She initiated this separation. Whether she is entitled to benefits will therefore be determined in accord with the provisions of § 25(e )(1). Section 25(e )(2) is not applicable in this case.

"Under § 25(e )(1), the claimant has the burden of proof. She must show by substantial and credible evidence either that her voluntary leaving was for good cause attributable to the employer or that her leaving was rendered involuntary due to urgent, compelling and necessitous reasons.

"It is clear that the employer acted reasonably in this case. The employer has the right to operate its business as it sees fit. It hired the claimant to fill a full time position. It was under no obligation to modify the hours of that position to accommodate the claimant's changed circumstances. Although the employer chose to modify her hours for a period of time, it was not required to continue to do so. The parties agreed that no new contract of hire was negotiated when the claimant's hours were temporarily changed; no new promises were made. The claimant's leaving was not for good cause attributable to the employer within the meaning of § 25(e )(1).

"The claimant did meet her burden of proof in showing that her leaving was rendered involuntary due to urgent, compelling and necessitous reasons. The claimant was unable to locate any daycare that was satisfactory within her personal standards that would have permitted her to work the full time hours the employer demanded that she work. There were no alternative shifts or flex hours within the employer's organization that would have permitted her to put in a full time workweek. Her leaving work was therefore rendered involuntary due to urgent, compelling and necessitous reasons within the meaning of § 25(e )(1).

"This review examiner did not feel it was necessary to address the issue of whether the claimant had a right to make the choices that she made. Whether the claimant has the right to restrict the hours when she makes herself available to work is an independent and separate issue from the one posed by the determination at hand. See the second `Note to Local Office' below.[⁴]

"The claimant is therefore not subject to disqualification and she is entitled to benefits."

On appeal, the claimant maintains that the District Court judge erred in concluding that the board of review's decision was unsupported by substantial evidence. She contends that the review examiner had before him uncontroverted evidence that she left her job for compelling personal reasons—to fulfill child care responsibilities—after having first taken reasonable steps to preserve her employment, which the review examiner was entitled to accept as such. This met her burden of proving that her work separation was involuntary and that she was entitled to benefits.

The employer takes the opposite view, maintaining that the claimant had not shown her work separation to be anything but a purely voluntary choice on her part, a product of her subjective belief that commercial day care was not suitable in the circumstances and a mere personal preference that her baby be cared for by family members or close friends. The employer contends that the claimant failed to show that she "had no choice but to leave work" and did not offer "objectively reasonable" reasons of an urgent, compelling or necessitous nature for leaving her job. In view of this, as well as the review examiner's failure to make findings as to the "objective reasonability" of the claimant's conduct, the employer argues that the judge was correct to set aside the review examiner's decision as being unsupported by substantial evidence. The employer also contends that, even if we conclude that the review examiner's decision as to G.L. c. 151A, § 25(e )(1), was supported by substantial evidence, it nonetheless cannot stand because the review examiner failed to address the question of the claimant's availability for work under G.L. c. 151A, § 24(b ), given the restrictions she has placed on her work hours.

Discussion. Our review of the board's decision must "give due weight to the [agency's] experience, technical competence, and specialized knowledge[,] . . . as well as to the discretionary authority conferred upon it." O'Brien v. Director of the Div. of Employment Security, 393 Mass. 482, 486, 472 N.E.2d 253 (1984), quoting from G.L. c. 30A, § 14(7). 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." Manias v. Director of the Div. of Employment Security, 388 Mass. 201, 205, 445 N.E.2d 1068 (1983). See Guarino v. Director of the Div. of Employment Security, 393 Mass. 89, 92, 469 N.E.2d 802 (1984). 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 ). See Guarino v. Director of the Div. of Employment Security, supra at 92-93, 469 N.E.2d 802; O'Brien v. Director of the Div. of Employment Security, 393 Mass. at 485, 472 N.E.2d 253.

We begin by reviewing the fundamental legal principles the board of review must apply. The unemployment compensation statute in general, and the element of voluntariness included in G.L. c. 151A, § 25(e )(1), in particular, serve the purpose of "avoiding temporary disqualification for...