Sohler v. Director of Division of Employment Sec.

• Decision Date: 06 April 1979
• Citation: 377 Mass. 785,388 N.E.2d 299
• Parties: Edith SOHLER v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 299

388 N.E.2d 299

377 Mass. 785

Edith SOHLER v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 5, 1979.

Decided April 6, 1979.

David A. Sonenshein, Boston University Legal Aid Program, for plaintiff.

Frank J. Scharaffa, Asst. Atty. Gen., for the Director of the Division of Employment Security.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

HENNESSEY, Chief Justice.

The appellant left her job as a staff nurse at a hospital on July 6, 1977. After a hearing held on August 31, 1977, the director of the Division of Employment Security denied Sohler unemployment benefits on the ground that she had been discharged from her employment for engaging in "deliberate misconduct, in wilful disregard of the employing unit's interest." G.L. c. 151A, § 25(E )(2), as amended through St.1975, c. 684, § 78. The division's board of review adopted the review examiner's decision. A judge of the Municipal Court of the City of Boston affirmed the board's decision and reported the case to this court. G.L. c. 151A, § 42. The record before us includes the evidence presented to the review examiner, his subsidiary findings of fact, and his conclusions of law.

We disagree with the reason advanced for denying the appellant unemployment benefits, i. e., that she was discharged for insubordination, because we conclude that the record does not support a finding that she was discharged at all. Nevertheless, we think that the denial of benefits was correct, despite the appellant's contention that she left her work voluntarily for good cause. See G.L. c. 151A, § 25(E )(1). The evidence does not warrant a finding of "good cause."

Sohler was employed as a staff nurse by the Massachusetts Rehabilitation Hospital from December 13, 1976, to July 6, 1977. On June 21, 1977, she submitted a letter of resignation dated June 17, 1977, to be effective within two or three weeks at her employer's discretion. It was decided that July 8, 1977, would be Sohler's last day of employment.

On the evening of July 6, 1977, Sohler had a disagreement with her supervisor over who, if anyone, had turned off an intravenous feeder. The details of this conversation are not clear from the record. However, at its close, the appellant was informed that she was being insubordinate and told that, although her resignation was effective within two or three days, she could leave that night "if she wanted to." The appellant left shortly thereafter.

At her hearing, the appellant denied being insubordinate but stated that she could not recall specific aspects of the conversation. No one appeared at the hearing on behalf of the hospital. However, the review examiner admitted in evidence a letter written by the supervisor which stated that, when the supervisor asked the appellant if she had shut off the intravenous feeder, the appellant said "it was not she who did it one word led to another I told Ms. Solar (Sic ) she was being insubordinate. She admitted she was."

After the hearing, the review examiner found that "the claimant submitted her resignation from her work on 6/21/77, to be effective 7/12/77 . . . (and) that the claimant was discharged from her work on 7/6/77, due to her insubordination and conduct unbecoming a professional nurse." The examiner further stated that, "Separation for the reasons of insubordination is deemed to be deliberate misconduct, in wilful disregard of the employing unit's interest, within the meaning of Section 25(e)(2) of the Law."

1. The appellant contends that the review examiner's decision is not supported by substantial evidence and, as such, requires reversal. She rests this contention on two grounds: (1) uncorroborated hearsay, i. e., the supervisor's letter, cannot as a matter of law constitute substantial evidence of deliberate misconduct, even before an administrative tribunal; and (2) even if uncorroborated hearsay could, in some circumstances, constitute substantial evidence of deliberate misconduct, the supervisor's letter in this case did not.

The appellant relies on Sinclair v. Director of Div. of Employment Security, 331 Mass. 101, 102, 117 N.E.2d 164 (1954), to support her first contention. However, Sinclair was decided before the enactment of the State Administrative Procedure Act, G.L. c. 30A, and in Goodridge v. Director of Div. of Employment Security, --- Mass ---, --- n.2 ^a, 377 N.E.2D 927 (1978), we left open the question whether Sinclair remains good law. We need not decide the point in this case either, because we find no evidence whatsoever to support a conclusion that the appellant was discharged from her place of employment. As a result, we are unconcerned with whether her conduct amounted to deliberate misconduct within the meaning of § 25(E )(2).

Both the supervisor's letter and the appellant's own testimony establish that the appellant was told that she could leave If she wanted to. Moreover, both parties in their briefs and arguments before this court characterized the appellant's June 6, 1977, departure as a premature resignation and argued that she left her position voluntarily. Finally, in its response to the division's Request for Separation and Wage Information, the hospital replied, "Edith Sohler has resigned her position with this facility. Work was available." We have before us no evidence to the contrary and therefore hold that Sohler's disqualification under § 25(E )(2) was error.

2. Since it has been shown that the appellant left her position voluntarily, she argues that she is entitled to benefits because she left her work for good...