Starks v. Director of Div. of Employment Sec.

• Decision Date: 11 April 1984
• Citation: 462 N.E.2d 1360,391 Mass. 640
• Parties: Pamela STARKS v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1360

462 N.E.2d 1360

391 Mass. 640

Pamela STARKS v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.

¹

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Feb. 7, 1984.

Decided April 11, 1984.

James L. Frederick, Southeastern Massachusetts Legal Assistance Corporation, Brockton, for employee.

Regina Williams Tate, Boston, for employer.

Before WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

ABRAMS, Justice.

This appeal challenges the decision of the board of review (board) of the Division of Employment Security (division), ² denying unemployment benefits to the plaintiff. The decision was affirmed by a judge of the Brockton District Court. Pursuant to G.L. c. 151A, § 42, this case came here for direct review with a report from that court. We affirm.

We summarize the facts found by the review examiner. The plaintiff worked as a nurse's aide for St. Joseph Manor Nursing Home (employer) from December, 1980, to November 4, 1982. She was thoroughly trained in all aspects of her work. Despite this, she frequently failed to follow job-related instructions, a number of which related to patient care. On October 15, 1982, the plaintiff was issued a written warning that further incidents would result in her termination. ³ She was placed on thirty days' probation. During the probationary period, the plaintiff left a patient unrestrained on a commode and personally used medicated cream belonging to another patient, both violations of the employer's policies. The plaintiff was discharged. The review examiner found that "[s]ince the claimant was fully trained in all aspects of her work and was capable of doing her work in the manner required by the employer, [and] since she had been adequately warned that her job was in jeopardy, her discharge is attributable solely to deliberate misconduct in wilful disregard of the employing unit's interest" within the meaning of G.L. c. 151A, § 25(e )(2).

The plaintiff contends that the board's finding that she was "fully trained in all aspects of her work" and "was capable of doing her work in the manner required" is not based on substantial evidence. The plaintiff's allegations go to the issue whether she had the requisite state of mind so that her actions could be found to be deliberate misconduct in wilful disregard of the employer's interest. See Torres v. Director of the Div. of Employment Sec., 387 Mass. 776, 779, 443 N.E.2d 1297 (1982); Reavey v. Director of the Div. of Employment Sec., 377 Mass. 913, 914, 387 N.E.2d 581 (1979); G.L. c. 151A, § 25(e )(2). the plaintiff argues tHat we should remand because the review examiner failed to make subsidiary findings with respect to state of mind. ⁴ Although the question is close, we conclude that the review examiner's findings are sufficient on this issue.

We agree "that the 'critical factual issue' in considering whether an employee's alleged misconduct is in wilful disregard of [her] employer's interest is the employee's state of mind at the time of the misconduct." Jean v. Director of the Div. of Employment Sec., 391 Mass. 206, 209, 460 N.E.2d 197 (1984), quoting Torres, supra, 387 Mass. at 779, 443 N.E.2d 1297. "In evaluating its subsidiary findings, the board must therefore take into account the worker's knowledge of the employer's expectation, the reasonableness of that expectation and the presence of any mitigating factors." Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97, 384 N.E.2d 642 (1979). Further, "[i]n the absence of any finding on the basic factual issue of the employee's state of mind, the agency decision cannot stand." Reavey v. Director of the Div. of Employment Sec., supra, 377 Mass. at 914, 387 N.E.2d 581. See Torres v. Director of the Div. of Employment Sec., supra, 387 Mass. at 779, 443 N.E.2d 1297. Accepting these principles, we believe the record is adequate to support the board's decision to deny benefits.

There is substantial evidence that the plaintiff was fully trained with respect to the rights of patients and the need for and use of restraints. She attended a five-hour initial orientation, a forty-hour orientation for her work on Level 2, and a series of forty-six in-service training sessions, including sessions on patients' rights, patient abuse, positioning, transfer and lifting, and "compassion." The record discloses that the plaintiff was warned many times not to leave patients unattended without a restraint. ⁵ Further, there was evidence that prior to the written warning the plaintiff had used the private property of patients without their permission and knew that such use was a violation of the employer's policies.

Relying on the obvious proposition that "[a] person's knowledge ... like his intent, is a matter of fact, which may not be susceptible of proof by direct evidence, [the review examiner assessed] ... the facts and circumstances developed at the trial," Commonwealth v. Holiday, 349 Mass. 126, 128, 206 N.E.2d 691 (1965), to determine the plaintiff's state of mind. In his findings, the review examiner focused on whether the plaintiff was adequately trained and adequately warned to determine if the plaintiff's actions might have been motivated by incompetence, good faith lack of understanding of employer policies or practices, or other causes that would entitle her to benefits. From the evidence adduced at the hearings (there were two), the review examiner eliminated these possibilities and concluded that leaving the patient unrestrained and using the patient's private property ⁶ were acts of deliberate misconduct in wilful disregard of the employer's interest.

In making her claim that another hearing is required, the plaintiff relies on her oral testimony to undermine the review examiner's conclusions. However, a reading of the findings of the review examiner indicates he did not give any credence to the plaintiff's testimony. The responsibility for determining the credibility and weight of...