Shriver Nursing Servs., Inc. v. Comm'r of the Div. of Unemployment Assistance

• Decision Date: 27 August 2012
• Docket Number: No. 11–P–493.,11–P–493.
• Parties: SHRIVER NURSING SERVICES, INC. v. COMMISSIONER OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 367

974 N.E.2d 61

SHRIVER NURSING SERVICES, INC.

v.COMMISSIONER OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.¹

No. 11–P–493.

Appeals Court of Massachusetts, Worcester.

Argued Nov. 9, 2011.

Decided Aug. 27, 2012.

John Foskett, Boston, for the employer.

Douglas S. Martland, Assistant Attorney General, for Commissioner of the Division of Unemployment Assistance.

Present: GREEN, SIKORA, & WOLOHOJIAN, JJ.

SIKORA, J.

Shriver Nursing Services, Inc. (Shriver), employs and places professional nurses in the homes of patients for the delivery of skilled care. From June of 2003 to March of 2009, Shriver employed Renne Milinazzo, a licensed practical nurse. It then terminated her. She applied to the Division of Unemployment Assistance (DUA) for benefits. G.L. c. 151A, §§ 22, 23, 24. Shriver opposed the application. At the conclusion of DUA's adjudicatory process, its board of review (board) awarded her benefits. Shriver appealed to the District Court. G.L. c. 151A, § 42. A judge of that court entered judgment on the pleadings in favor of the DUA and Milinazzo. See Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). For the following reasons we reverse, and order the entry of judgment in favor of Shriver.

Background. 1. Facts. The material facts emerging from the adjudication by the DUA are undisputed. Throughout her employment with Shriver, Milinazzo worked full time as an overnight monitor for a boy with cerebral palsy. He breathed through a ventilator and required twenty-four hour per day care.² In 2009, the boy was eleven years old. Milinazzo's shift at his family home extended from 6:00 p.m. to 7:00 a.m. From a separate room in the house, she observed the patient by closed circuit television. If a problem arose with the ventilator equipment and the boy required assistance, such as suctioning or clearing out the breathing tube, an alarm would sound. Even before an alarm sounded, an observing nurse could detect changes in a patient's condition and the need for an intervention. Milinazzo's observation room contained a couch. To make her more comfortable during the shift, the boy's father provided her with a blanket and a pillow.³

Shriver's employee manual contained a list of “serious violations” exposing a worker to “immediate termination.” It included “sleeping on the job.” Milinazzo had read the manual and signed an acknowledgment of her understanding of its provisions on various dates, most recently on March 4, 2008. She testified that she knew that sleeping on the job would not allow her “to do [her] nursing duties and take care of the child to the best of [her] ability.”

On August 11, 2008, Milinazzo fell asleep during her shift. The boy's mother learned of the incident but did not report it to Shriver. Then, on February 27, 2009, Milinazzo again fell asleep on duty. The mother again did not report the incident to Shriver at the time of its occurrence.

On March 6, 2009, Milinazzo posted a comment on a social networking Web site, creating an inference that the patient's family was treating her shabbily. The mother saw the post and reported it to Shriver on March 9, 2009. At the same time she reported both sleeping incidents to Shriver. ⁴

Milinazzo met with Shriver personnel to discuss the mother's complaints and admitted to the occurrences. Shriver offered her the choice of termination or resignation; she chose to resign.

Milinazzo then applied for unemployment benefits from the DUA. It first disqualified her from eligibility on the ground that she had left employment voluntarily. G.L. c. 151A, § 25( e )(1). She appealed. A review examiner conducted a hearing, made findings, and reversed the disqualification. The examiner found that Milinazzo had not left employment voluntarily within the meaning of § 25( e )(1), but rather that Shriver had coerced her resignation so as to make it involuntary, and so as to require for disqualification a fault-based ground under § 25( e )(2). In pertinent part, § 25( e )(2), as appearing in St.1992, c. 26, § 19, disqualifies an applicant from unemployment benefits if she left her employment:

“by discharge shown to the satisfaction of the [DUA] by substantial and credible evidence to be attributable to deliberate misconduct and wilful disregard of the employing unit's interest, or to a knowing violation of a reasonable and uniformlyenforced rule or policy of the employer.”

The review examiner determined that Shriver had failed to establish “deliberate misconduct which would allow it to terminate [Milinazzo's] employment and disqualify her from benefits.”

Shriver next appealed to the board. After a remand to the review examiner for additional findings, the board affirmed the determination of eligibility for benefits.

In accordance with G.L. c. 151A, § 42, Shriver sought judicial review in the District Court under the standards of the Administrative Procedure Act, G.L. c. 30A, § 14(7). A judge affirmed the DUA decision without opinion or explanation. Shriver has timely appealed to this court. G.L. c. 151A, § 42.

Analysis. 1. Standard of review. The fundamental purpose of the statutory program of unemployment assistance is “to afford benefits to persons who are out of work and unable to secure work through no fault of their own.” Howard Bros. Mfg. v. Director of the Div. of Employment Security, 333 Mass. 244, 248, 130 N.E.2d 108 (1955). The statute calls for a liberal construction “in aid of its purpose.” G.L. c. 151A, § 74, as appearing in St.1990, c. 177, § 340. If an employer disputes the eligibility for benefits of a discharged employee, the issue is not the validity of the grounds for discharge, but rather the qualification of the former employee for assistance in the entire circumstances of the discharge. Still v. Commissioner of the Dept. of Employment & Training, 423 Mass. 805, 809, 672 N.E.2d 105 (1996). The grounds for disqualification prescribed in c. 151A, § 25( e )(2), constitute exceptions to eligibility; the burden of proof of either “wilful disregard of the employing unit's interest, or [of] a knowing violation of a reasonable and uniformly enforced rule or policy of the employer” rests upon the employer. Id. at 807–808, 672 N.E.2d 105. The statute subjects the final eligibility decision of the DUA to judicial review under the standards of the Administrative Procedure Act. G.L. c. 151A, § 42. In this instance Shriver challenges the DUA determination as an error of law, a finding unsupported by substantial evidence, and a disposition arbitrary, capricious, and abusive of discretion within the meanings of G.L. c. 30A, § 14(7)( c ), ( e ), and ( g ), respectively.

2. DUA reasoning. Upon the facts undisputed by the parties, the board rejected Shriver's challenge to Milinazzo's eligibility with the following rationale.

“Although the claimant's sleeping on the job twice clearly violated the employer's policy and expectation, we conclude that the employer's client—the child's mother—had condoned the claimant's sleeping on the job. The mother waited seven months after the first incident and an entire week after the second incident to complain to the employer. However, because the mother did not complain until she read the claimant's Facebook posting, her complaints were seemingly not motivated by the claimant's sleeping on the job. After sleeping twice on duty, the claimant still had no reason to believe that the mother would report her misconduct, particularly when the clients had provided a pillow and blanket to accommodate the claimant. She thus lacked the requisite intent to violate the employer's policy or expectation, since her action had been condoned by the employer's client.

“We, therefore, conclude as a matter of law that the claimant quit to avoid discharge, but that her discharge would not have been for deliberate misconduct in wilful disregard of the employer's interest or for a knowing violation of the employer's reasonable and uniformly enforced policy.”

On appeal the DUA defends this reasoning on the grounds (1) that we should defer to “the experience, technical competence, and specialized knowledge of the [DUA] as well as the discretionary authority conferred upon it,” citing G.L. c. 30A, § 14(7); and (2) that Milinazzo did not commit a “knowing violation” of a rule or policy because she had twice fallen asleep “inadvertently.”

First, no degree of deference for agency adjudication can salvage the board's condonation rationale. No provision of the statutory scheme and no decisional law support such a notion.⁵ Without the consent of the employer, the client, patient, or customer has no authority to define or to waive the standards of performance of the employment relationship. The vital interests in those standards belong exclusively here to Shriver. It never relaxed or abandoned them. If Milinazzo had slept through a clog in the ventilator breathing tube and if that malfunction had caused death or grave harm to the patient, Shriver would have suffered the consequences in both law (respondeat superior liability) and commerce (diminished reputation and goodwill). Condonation by the patient's family would not prevent the harm to those legal and economic interests. Shriver never knew of the mother's condonation, nor could it rationally have consented to it. As it points out, the mother's alleged tolerance of Milinazzo's lapses is immaterial to Shriver's interests and treatment of its employee. This ground of decision reduces to an error of law and a determination arbitrary, capricious, and abusive of discretion. G.L. c. 30A, § 14(7)( c ) and ( g ).

3. Knowing violation of rule or policy. The DUA argues that the board's decision rests also upon the implicit ground that Milinazzo's sleeping incidents could not constitute knowing violations of the prohibition against on-duty sleeping because they were inadvertent lapses. Shriver answers that such a broad exemption would violate statutory purpose and policy.⁶

In 1951 the Legislature...