Home ELIZABETH MOORE vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another. [Note 1]

390 Mass. 1004

December 6, 1983

William M. Leonard for the employee.

George J. Mahanna, Assistant Attorney General, for Director of the Division of Employment Security.

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

We summarize the review examiner's findings of fact. [Note 2] Moore worked for the Boston Zoological Society from January, 1975, to October 21, 1981, as a switchboard operator and receptionist. Moore's hours of work were 8:30 A.M. to 4:30 P.M. In early August, 1981, Moore moved to Plymouth. In early September, Moore began riding to work with her daughter-in-law. By riding with her daughter-in-law Moore arrived at work between 9 and 9:30 A.M. Moore's supervisor told her to be at the switchboard by 8:30 A.M. On October 16, 1981, Moore learned that she was eligible for fuel assistance, and that the application had to be made at Plymouth on October 19, 1981, between 9:30 A.M. and 12:30 P.M. Moore told the bookkeeper that she was taking October 19 off for personal business. On October 19, Moore telephoned her supervisor at 7:30 A.M. and left the same message. Moore did not complete the application for

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fuel assistance on October 19. She called her employer and left a message that she would not be in on October 20 because of personal business.

On October 21, 1981, Moore reported for work at 9:30 A.M. At approximately 12:30 P.M., Moore asked to speak to her supervisor about her absences and tardiness. Moore knew the supervisor was upset. At the meeting Moore told her supervisor if the supervisor did not like what she was saying, the supervisor could fire her. The supervisor fired Moore. Moore went back to the switchboard. At 3 P.M., Moore apologized to her supervisor for losing her temper. The supervisor instructed her to report to work the next day. The next day Moore reported to work at 9:30 A.M. Moore's employment was terminated.

The review examiner found that Moore was discharged because she reported to work at 9:30 A.M. instead of her regularly scheduled time of 8:30 A.M. The review examiner concluded that her discharge on October 22 was solely for deliberate misconduct in wilful disregard of the employing unit's interest within the meaning of G. L. c. 151A, Section 25 (e) (2). Moore claims that the board's conclusion that she was fired for arriving at 9:30 on October 22 is not supported by substantial evidence. We do not agree.

At the hearing, Moore said that she knew her employer wanted the switchboard opened at 8:30 A.M. She knew the hours of her job were 8:30 A.M. to 4:30 P.M. On October 22, Moore again came to work at 9:30 A.M., and she was discharged.

The purpose of Section 25 (e) (2) is "to deny benefits to a claimant who has brought about his own unemployment through intentional disregard of standards of behavior which his employer has a right to expect." Garfield v. Director of the Div. of Employment Security, 377 Mass. 94 , 97 (1979). Moore's failure to report for work at 8:30 A.M. could be found to be "intentional disregard of the standards of behavior which [her] employer ha[d] a right to expect." Id.

Moore claims that her absences from her job in order to obtain a fuel allowance and her quarrel with her supervisor were a significant part of the decision to discharge her, and those reasons do not constitute deliberate misconduct. In support of her argument Moore points to the letter of discharge which does not clearly state that her employment was terminated for tardiness. The short answer is that Moore's employment was not terminated after her absences or after she asked her supervisor to retract her dismissal; she was fired after she deliberately reported for work at 9:30 A.M., instead of 8:30 A.M. While Moore was free to argue that her employment was terminated because of her absences or the quarrel with her supervisor, the board was not required to believe her. "It is the agency's responsibility to weigh the evidence, find the facts, and decide the issues." Manias v. Director of the Div. of Employment Sec., 388 Mass. 201 , 205 (1983). Graves v. Director of the Div. of Employment Sec., 384 Mass. 766 , 769 (1981). The board could conclude that Moore's decision to arrive at work at 9:30 A.M. was "deliberate misconduct" within

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the meaning of the statute. [Note 3] The judgment of the District Court is affirmed.

So ordered.


FOOTNOTES

[Note 1] Boston Zoological Society.

[Note 2] The board adopted the findings of the review examiner, and we therefore treat them as the findings of the board.

[Note 3] Since we conclude that the board was warranted in determining that the discharge was attributable solely to wilful misconduct, we need not consider whether a discharge, based in part on wilful misconduct and in part on legitimate excusable reasons, disqualifies an employee from benefits under G. L. c. 151A, Section 25 (e) (2). See Garfield v. Director of the Div. of Employment Sec., supra at 96 n.2. At oral argument, Moore raised additional issues. An "appellate court need not pass upon questions or issues not argued in the brief." Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975).