Wedgewood v. Director of Div. of Employment Sec.

• Decision Date: 03 November 1987
• Citation: 514 N.E.2d 680,25 Mass.App.Ct. 30
• Parties: Jerry A. WEDGEWOOD v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: Appeals Court of Massachusetts

Page 680

514 N.E.2d 680

25 Mass.App.Ct. 30

Jerry A. WEDGEWOOD v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.¹

Appeals Court of Massachusetts Suffolk.

Argued Oct. 20, 1987.

Decided Nov. 3, 1987.

John F. Palmer, Boston, for employee.

Wendy Thaxter, Asst. Atty. Gen., for Director of Div. of Employment Sec.

Before DREBEN, KASS and FINE, JJ.

FINE, Justice.

Jerry A. Wedgewood was employed for fifteen years as a maintenance worker by Boston College. He worked the night shift. On March 22, 1985, he was discharged from his employment for falling asleep while on duty. He had previously been found asleep on the job and had been warned that if it happened again he would be discharged. Although he had been having personal problems which caused him to be short of sleep, he had declined the offer of a leave of absence, and he avoided discussing the specifics of his personal problems with his supervisor.

Wedgewood filed a claim for unemployment compensation benefits under G.L. c. 151A, § 22, which was denied first, after a hearing, by the Division of Employment Security review examiner and then by the division's board of review (board). He sought judicial review under G.L. c. 151A, § 42, in the Boston Municipal Court. This appeal is from a decision of a judge of that court affirming the decision of the board denying benefits.

We accept the facts found by the board. We think, however, they compel the opposite conclusion from that reached by the board and by the judge. We reverse the decision, therefore, and order the case remanded to the Boston Municipal Court so that it may be remanded, in turn, to the Division of Employment Security for entry of an order awarding Wedgewood unemployment compensation benefits in accordance with this opinion. See Jones v. Director of the Div. of Employment Security, 392 Mass. 148, 151, 465 N.E.2d 245 (1984).

The hearing examiner, in a decision adopted by the board, found that: "[t]he claimant was discharged for sleeping on the job, after being warned that such performance placed his job in jeopardy and would subject him to discharge; ... the claimant made no effort to reveal his reason for sleeping while at work; ... he was aware that he faced discharge at the next incident; ... he considered his reasons for his actions too personal to discuss with the employer; ... the claimant, although suspended from work in the midst of his personal problems, instituted no job action with his Union." In addition, there was uncontested testimony offered through the employer's witness that Wedgewood had been a stable employee of Boston College for fifteen years and had never fallen asleep on the job prior to the incidents, leading to his termination, which occurred over a period of about one month. Wedgewood testified, and the hearing officer found, that, at the time of those incidents, Wedgewood was experiencing personal problems which consisted, among other things, of a pending divorce and the very serious illness of both of his elderly parents with whom he was living and for whose care he was responsible. His seventy-eight year old mother was in a hospital intensive care unit suffering from pneumonia and his eighty year old father was at home terminally ill with cancer. He alternately visited his mother in the hospital and cared for his father at home. Wedgewood gave testimony, and there is no indication the hearing officer disbelieved it, that, as a result of the family problems, he did not have sufficient time to sleep during the day. On the night he was fired, according to testimony offered by the employer, Wedgewood's supervisor found him seated at a desk, asleep, in a four by eight foot custodial closet or locker room. The door was open. No evidence was presented concerning how many breaks he was allowed during the night or when they were in relation to when he was found asleep.

On the basis of its review, the board denied benefits, concluding that "the claimant was in full control of his actions and failed to protect his employment status when he knew he faced discharge, and therefore his separation was due solely to deliberate misconduct in wilful disregard of the employer's interest within the meaning of [G.L. c. 151A, § 25(e )(2) ]." That provision, as appearing in St.1973, c. 899, § 2, states that no benefits are payable to an individual for a "discharge shown to the satisfaction of the director to be attributable solely to deliberate misconduct in wilful disregard of the employing unit's interest."

The employer bears the burden of persuading the fact finder of the employee's wilful misconduct. See Cantres v. Director of the Div. of Employment Security, 396 Mass. 226, 231, 484 N.E.2d 1336 (1985); Shepherd v. Director of the Div. of Employment Security, 399 Mass. 737, 740, 506 N.E.2d 874 (1987). "The critical factual issue in determining whether an employee's discharge resulted from his wilful or intentional misconduct is the employee's state of mind at the time of his misconduct." Torres v. Director of the Div. of Employment Security, 387...