Tri-County Youth Programs, Inc. v. ACTING DEPUTY DIRECTOR OF THE DIV. OF EMPLOYMENT & TRAINING.
| Citation | 54 Mass. App. Ct. 405,765 NE 2d 810 |
| Decision Date | 09 April 2002 |
| Docket Number | No. 99-P-625.,99-P-625. |
| Parties | TRI-COUNTY YOUTH PROGRAMS, INC. v. ACTING DEPUTY DIRECTOR OF THE DIVISION OF EMPLOYMENT AND TRAINING & another. |
| Court | Appeals Court of Massachusetts |
Present: BROWN, GREENBERG, & GELINAS, JJ.
Robert L. Quinan, Jr., Assistant Attorney General, for Acting Deputy Director of the Division of Employment & Training.
Albert R. Mason (Kathleen A. Moore-Kocot with him) for the plaintiff.
Tri-County Youth Programs, Inc. (Tri-County), appeals from a decision of the District Court affirming the decision of the board of review of the division of employment and training (board) to grant unemployment benefits to Denise Y. Lawrie (Lawrie). The board, in overturning a decision of the review examiner, concluded that Lawrie terminated her employment at Tri-County voluntarily, but for good cause, "due to sexual harassment and the resultant creation of an intimidating, humiliating and sexually offensive work environment," within the meaning of G. L. c. 151A, § 25(e).2 We affirm.
Facts. We offer a brief summary of the facts, based upon the undisputed findings of the review examiner, adopted in full by the board, supplementing from that source where context requires. Lawrie was hired in 1996 as a shift manager in a residence for emotionally troubled adolescents operated by Tri-County in Northampton. On November 22, 1997, in connection with her duties, Lawrie took two Tri-County clients on a shopping trip. While driving a company van, Lawrie was sexually assaulted by one of the clients, a fourteen year old male. Lawrie promptly reported the assault to her superiors. Without objection, but with no assistance from Tri-County, Lawrie reported the assault to police and pressed charges. Lawrie's assailant was arrested and placed into the custody of the Department of Youth Services (DYS). On December 4, 1997, Lawrie's supervisor informed her that her assailant would probably be returned to Lawrie's work site, with a "stay-away" order in place.
On December 10, 1997, Lawrie's assailant admitted delinquency to sexual assault, was adjudicated delinquent, and was placed on two years' probation. The court also ordered the juvenile to stay away from Lawrie and to have no contact with her. Later that day, with the assent of Tri-County, DYS returned the juvenile to the same residential facility where Lawrie worked. After discussion with her superiors, Lawrie resigned her position, effective January 7, 1998, giving as the reason her dissatisfaction with her employer's handling of the sexual assault incident. On December 15, 1997, at a meeting with her supervisor, Lawrie was informed that Tri-County had decided to make her resignation effective immediately. Lawrie made application for unemployment benefits, which were granted. Tri-County appealed, and a review examiner denied the benefits; Lawrie applied to the board for a review of the examiner's decision. The board, concluding that the examiner's decision was based on an error of law, modified the examiner's decision and awarded Lawrie benefits for the week ending December 27, 1997, and for subsequent weeks. Tri-County then petitioned the District Court to vacate the board's decision. From a judgment affirming the board's decision, Tri-County appeals to this court.
Standards of review. The standards of review applicable to findings and decisions of the board are established in the employment security statute, G. L. c. 151A, § 42; pursuant to the statute, the State Administrative Procedure Act, G. L. c. 30A, § 14, controls. Where our review is governed by the Act, we are required to give "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." G. L. c. 30A, § 14(7), St. 1973, c. 1114, § 3. See Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. 593, 595 (1974). We review the record "to determine whether the board applied correct legal principles in reaching its decision." Guarino v. Director of the Div. of Employment Sec., 393 Mass. 89, 92 (1984). We look "to discover whether the decision contains sufficient findings to demonstrate that correct legal principles were applied, and we must review the record to determine whether those findings are supported by substantial evidence." Ibid., citing Lycurgus v. Director of the Div. of Employment Sec., 391 Mass. 623, 626-627 (1984). "If an agency's finding of fact is supported by `such evidence as a reasonable mind might accept as adequate to support a conclusion,' it will not be disturbed by a reviewing court." Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. at 595, quoting from G. L. c. 30A, § 1(6), as inserted by St. 1954, c. 681, § 1.
As to interpretation of statutes governing the agency, we defer to the agency's interpretation and application of the statute within which it operates. See Hotchkiss v. State Racing Commn., 45 Mass. App. Ct. 684, 691-692 (1998). Where the agency's rules are concerned, the agency's interpretation is entitled to great weight, unless those interpretations are "arbitrary, unreasonable or inconsistent with the plain terms of the rule itself." Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478 (1976). However, pure questions of law are "subject to de novo judicial review." Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. at 595. See G. L. c. 30A, § 14(7)(c).
Sufficiency of the evidence. Tri-County does not dispute that the findings of fact adopted by the board are supported by substantial evidence. Rather, it argues that the board (in adopting without change the findings of the examiner, but reaching the opposite conclusion from those findings) did not have sufficient evidence with which to conclude Lawrie had resigned due to sexual harassment under G. L. c. 151A, § 25(e), and therefore she had not satisfied the burden of showing that she left with good cause attributable to the employer. Applying the standards set forth in Guarino v. Director of the Div. of Employment Sec., 393 Mass. at 92, discussed earlier, we conclude that the board's findings were neither inconsistent with the board's conclusion that Lawrie had been subject to sexual harassment, creating a hostile, humiliating, or sexually offensive work environment, nor unsupported by substantial evidence.
More specifically, the conclusion that Lawrie left due to sexual harassment, and the examiner's (and the board's) finding that she "left her job because of dissatisfaction with the employer's handling of the sexual assault incident," are not inconsistent. The board specifically found that Lawrie had been sexually assaulted by her employer's client, and that this client had been criminally prosecuted and ordered to stay away from Lawrie. From these specific material subsidiary findings, the board could draw the reasonable inference that Lawrie was subject to an "intimidating, hostile, humiliating and sexually offensive work environment" when her assailant returned to the same facility where she worked and that Tri-County made "no... effort" to stop the creation of such an environment. In so doing, Tri-County ran afoul of G. L. c. 151A, § 25(e), fourth and fifth pars. (see note 2, supra). This conclusion accords with the finding that Lawrie left her employment because she was dissatisfied with the way her employer handled the sexual assault, and it supports the further determination that her resignation was involuntary, with good cause attributable to Tri-County.
The board's conclusion in this regard was also consistent with the finding that Lawrie would not have had "any problems in performing her job duties" even if her assailant was returned to the facility wherein she worked. It is not inconsistent for an employee to be able to perform job duties but still be working within a hostile, humiliating, and sexually offensive environment. Further, Tri-County's argument, that Lawrie failed to raise the sexual harassment issue with the initial examiner, or with the board, is contradicted by the record. Lawrie's application for further review and her counsel's oral argument to the examiner, that Tri-County's stance in taking back the offending client without "anything in the works" for a transfer for Lawrie, were sufficient, in our view, to raise the issue that Tri-County had created a work environment that was sexually hostile.
Burden of proof. We reject Tri-County's argument that Lawrie failed to sustain her burden of proof. Generally, it is the employee's burden, under G. L. c. 151A, § 25(e) (see note 2, supra), to show that the employee left work involuntarily with good cause attributable to the employer, and that "he or she took reasonable steps to preserve his or her employment ... , unless the circumstances indicate that such efforts would be futile or result in retaliation." 430 Code Mass. Regs. § 4.04(5)(c)(3)(b) (1997).3 In cases involving allegations of sexual harassment, however, the claimant need not show that she took all or even "reasonable steps" to preserve her employment. The requirement is expressly excluded by G. L. c. 151A, § 25(e), fourth par. (see note 2, supra), and 430 Code Mass. Regs. § 4.04(5)(c)(3) (see note 3, supra). Contrast Guarino v. Director of Div. of Employment Security, 393 Mass. at 93-94 (). Hence, while the board explained that "the findings suggest Lawrie may not have taken all necessary measures to preserve her employment prior to resigning," under the statute and regulation Lawrie was not required to show that she had taken such measures.
It appears Lawrie would have sustained her burden even under the more stringent requirement. As noted, in its decision, the board concluded that Tri-County was...
To continue reading
Request your trial