White v. Director of Div. of Employment Sec.

• Decision Date: 08 August 1985
• Citation: 395 Mass. 635,481 N.E.2d 461
• Parties: Rosamond WHITE v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 461

481 N.E.2d 461

395 Mass. 635

Rosamond WHITE v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 9, 1985.

Decided Aug. 8, 1985.

Monica Halas, Boston, for employee.

David J. Kerman, Quincy, for New England Medical Center.

Willie Ivory Carpenter, Jr., Asst. Atty. Gen., for Director of the Div. of Employment Sec., was present but did not argue.

Before HENNESSEY, C.J., and WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The plaintiff, Rosamond White, appeals from a judgment of the Municipal Court of the City of Boston which affirmed a determination by the board of review (board) of the Division of Employment Security (DES) denying White's request for unemployment benefits. New England Medical Center (NEMC) discharged White from her employment as a laboratory animal caretaker on November 29, 1982, effective November 18, 1982. White applied for, but was denied, unemployment benefits. After a hearing, a review examiner determined that, pursuant to G.L. c. 151A, § 25(e)(2) (1984 ed.), ² White was disqualified from receiving unemployment benefits. The board denied White's application for review, thereby making the decision of the review examiner the final decision of the board. G.L. c. 151A, § 41(c) (1984 ed.). White then filed a complaint for judicial review in the Boston Municipal Court. G.L. c. 151A, § 42 (1984 ed.). In response, DES filed a motion to remand the case to the agency "in order to make subsidiary findings of fact on the issue of whether or not [White's] discharge 'was due solely to deliberate misconduct in wilful disregard of the employing unit's interest.' " A Municipal Court judge granted that motion. After a hearing on remand, the board again affirmed the decision denying unemployment benefits. White then notified the court clerk in writing that she wished to reactivate her appeal. After a hearing, another Municipal Court judge affirmed the board's decision.

On appeal, NEMC contends that the judge did not retain jurisdiction of this dispute after granting the motion to remand. Furthermore, NEMC contends, White's letter seeking to reactivate her appeal did not comply with G.L. c. 151A, § 42. ³ NEMC argues that, as a result, the court lacked jurisdiction of the dispute. In rebuttal, White and the director argue that the court did have jurisdiction of her appeal. Alternatively, they argue that any procedural error in perfecting her appeal was not jurisdictional in nature and should not lead to the dismissal of the appeal. The director and NEMC also argue that the decision to deny White unemployment benefits was supported by substantial evidence. White disagrees. She also contends that the decision was based on an error of law where the board equated "a technical violation of a work rule with grounds for disqualification and where evidence of mitigating factors relevant to Mrs. White's state of mind was ignored." For the reasons set forth below, we conclude that the court properly entertained jurisdiction of this dispute and that the board's decision to deny White unemployment benefits was supported by substantial evidence.

We summarize the facts found by the board. White worked for NEMC from April 29, 1977, to November 18, 1982, most recently as a laboratory animal caretaker. NEMC requires employees to obtain permission before leaving assigned duties. Employees who violate this policy are subject to discharge. On July 12, 1982, White signed a statement which indicated that she had received and understood NEMC's code of employee conduct and the procedure for discipline describing the discharge policy.

On November 18, 1982, at about 1:10 P.M., White telephoned her supervisor's office and inquired whether he was in his office. The record indicates he was, but the board found that she did not ask to speak with him. At about 1:25 P.M. White's supervisor observed White leaving NEMC's premises in her car. The supervisor waited until 3:30 P.M. for White to return, but she did not. The supervisor also searched for White at her worksite without success. At the initial hearing regarding her unemployment claim, White asserted that she had worked through her lunch period before leaving work. She then left to shop for a dress to wear to a funeral of a family member. White's shopping lasted until 3 P.M.; she did not feel obliged to return to work for the remaining half hour. When White failed to return to work, her supervisor prepared written documentation of her absence.

On November 19, 1982, NEMC notified White that she was suspended and that NEMC would review the situation to determine what action would be taken regarding her absence from duty on the previous day. In conjunction with the suspension, NEMC allowed White to take a three-day bereavement leave from November 22, 1982, through November 24, 1982. NEMC considered it a serious deviation from its policy for White to leave duty without prior permission from an authorized management person. Upon White's return to work, NEMC discharged her effective November 18, 1982.

1. Jurisdiction. In granting DES's motion to remand, the judge did not explicitly retain jurisdiction of this dispute. After the board's decision on remand, White, rather than file a fresh complaint, requested in writing that the clerk "inform [her] as to the manner in which [she could] proceed with this case before this Court." The clerk informed White to "[n]otify the parties ... that the Director must file the transcript so a Court hearing may be commenced." White complied with these instructions. The method used to appeal the board's decision put NEMC and DES on notice. The nature of the claim was evident from the earlier complaint and did not change after the remand.

Although we have recognized that certain procedural requirements are jurisdictional, Schulte v. Director of the Div. of Employment Sec., 369 Mass. 74, 79, 337 N.E.2d 677 (1975), "recent decisions ameliorate the harshness of a jurisdictional view of such statutes and rules." Crane v. Commissioner of Pub. Welfare, 395 Mass. 435, 480 N.E.2d 995 (1985), and cases cited. "Sloppiness in following a prescribed procedure for appeal is not encouraged or condoned, but at the same time a distinction is taken between serious missteps and relatively innocuous ones." Schulte, supra. We conclude that any procedural error committed in perfecting this appeal was innocuous and not jurisdictional. Having failed to raise this nonjurisdictional procedural error below, NEMC cannot now raise this error on appeal. Albert v. Municipal Court of the City of Boston, 388 Mass. 491, 493-494, 446 N.E.2d 1385 (1983). ⁴

2. Merits. The substance of White's arguments is that the board's decision is not supported by substantial evidence. ⁵ White contends that the evidence does not support a finding that her conduct "constitute[d] deliberate misconduct in wilful disregard of [NEMC's] interest." White draws support for her argument from her testimony elicited at the hearings. White's testimony indicates that, sometime before she reported to work on the morning of the incident, her brother-in-law died. White asserted that she arrived at work distraught and exhausted. She testified that, during the morning, she called her supervisor's office and spoke to the assistant director. According to her testimony, she informed him that she would need time off for the funeral and that she also would like to leave early that day. White's contention is that she left work with the impression that she did have proper permission to leave.

A decision to deny benefits "is unacceptable if it does not contain sufficient subsidiary findings to demonstrate that correct legal principles were applied." Lycurgus v. Director of the Div. of Employment Sec., 391 Mass. 623, 626-627, 462 N.E.2d 326 (1984). In reviewing such a decision, we must determine whether the board's decision is supported by substantial evidence. Abramowitz v. Director of the Div. of Employment Sec., 390 Mass. 168, 172, 454 N.E.2d 92 (1983). "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion,' taking 'into account whatever in the record detracts from its weight.' " Lycurgus v. Director of the Div. of Employment Sec., supra, 391 Mass. at 628, 462 N.E.2d 326. In the face of conflicting testimony, DES's assessment of the credibility of the witnesses and its findings of fact should not be displaced. Rioni v. Director of the Div. of Employment Sec., 392 Mass. 436, 438, 466 N.E.2d 507 (1984), quoting New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466, 420 N.E.2d 298 (1981). "[T]he critical issue in determining whether disqualification is warranted is the claimant's state of mind in performing the acts that cause the discharge.... [T]he 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." (Citations omitted.) Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97, 384 N.E.2d 642 (1979). In this instance, White bears the burden of persuasion "as to all aspects of eligibility for unemployment benefits." Sohler v. Director of the Div. of Employment Sec., 377 Mass. 785, 788 n. 1, 388 N.E.2d 299 (1979).

The board's decision contains the findings necessary to support a determination that White was disqualified from receiving benefits pursuant to G.L. c. 151A, § 25(e) (2). ⁶ The...