LEONARDO CANTRES vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another. [Note 1]

ABRAMS, J. The plaintiff appeals from a judgment of a District Court judge affirming a decision of the Division of Employment Security (division) denying the plaintiff unemployment compensation benefits. A review examiner of the division

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concluded that the plaintiff's discharge from work was attributable solely to deliberate misconduct in wilful disregard of the employer's interest within the meaning of G. L. c. 151A, Section 25 (e) (2) (1984 ed.). [Note 2] The board of review of the division (board) denied the plaintiff's application for review. A judge of the District Court affirmed the board's decision.

Because the board denied the plaintiff's application for review, the decision of the review examiner is treated as that of the board. See G. L. c. 151A, Section 41 (c). We summarize the findings of the review examiner. The plaintiff was employed by Raytheon as a wire assembler for six years prior to his discharge on May 4, 1984. On April 3, 1984, the plaintiff notified the employer that he would be absent from work because of headaches. Thereafter, the plaintiff remained absent without further notification to the employer. On April 10, the employer requested a medical certificate from the plaintiff's physician substantiating his illness. On April 18, the employer received a document from the plaintiff's physician. The employer deemed that document insufficient excuse under the terms of its collective bargaining agreement with the plaintiff's union, and requested further verification from the plaintiff on April 27. After receiving no response from the plaintiff, the employer discharged him on May 4. The review examiner found "not persuasive" the plaintiff's contention that he had done all within his power to comply with the employer's requests.

The plaintiff appeals, claiming that the record lacks substantial evidence to support the board's conclusion that the employee deliberately acted in wilful disregard of his employer's interest. Thus, he concludes that on this record it was error to disqualify him under Section 25 (e) (2). We agree. We reverse the judgment of the District Court and order that a judgment be entered remanding the case to the Division of

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Employment Security for further proceedings consistent with this opinion. Last we comment on the burden of persuasion under G. L. c. 151A, Section 25 (e) (2).

A claimant is disqualified from benefits if the individual left work "by discharge shown to the satisfaction of the director to be attributable solely to deliberate misconduct in wilful disregard of the employing unit's interest." G. L. c. 151A, Section 25 (e) (2). Not every act of misconduct disqualifies a claimant. "The apparent purpose of Section 25 (e) (2) then 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. When a worker is ill-equipped for his job or has a good faith lapse in judgment or attention, any resulting conduct contrary to the employer's interest is unintentional; a related discharge is not the worker's intentional fault, and there is no basis under Section 25 (e) (2) for denying benefits." Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97 (1979).

The parties agree that 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 Sec., 387 Mass. 776, 779 (1982). The parties further agree that the director's decision must be based on substantial evidence. 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., 391 Mass. 623, 627-628 (1984).

The review examiner's conclusion that the plaintiff acted with deliberate and wilful disregard is not supported by substantial evidence. There is evidence that, as a result of the plaintiff's absence from work, the employer requested the plaintiff to provide medical documentation. The plaintiff's physician wrote a letter. The employer deemed the physician's letter "insufficient" and sent the plaintiff a telegram in which it requested

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"further documentation." [Note 3] This telegram is the only evidence that the plaintiff knew of the employer's expectations. There is no evidence of the employer's expectations as to the additional medical documentation it required, of the plaintiff's knowledge and understanding of those expectations, and of the reasonableness of the expectations. The employer's request for "further documentation" without elaboration is not substantial evidence on these issues. [Note 4] See Jean v. Director of the Div. of Employment Sec., 391 Mass. 206, 209 (1984); Garfield, supra at 97.

The plaintiff told the review examiner that after receiving the telegram he repeatedly asked his physicians to comply with his employer's request. The plaintiff concedes that he may have erred in relying on his physicians to mail the documents to the employer rather than hand-carrying the documents to his employer. [Note 5] But that error in judgment does not rise to the level of intentional fault or wilfulness which disqualifies an otherwise eligible claimant under Section 25 (e) (2). See Garfield, supra at 96-97.

Because it is clear from recent litigation [Note 6] that there is a need for further analysis of Section 25 (e) (2), we comment on the burden

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of persuasion under G. L. c. 151A, Section 25 (e) (2). We begin our analysis by considering the language of Section 25 (e) (2) to determine its legislative purpose. Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977). The section at issue disqualifies individuals whose termination comes about "by discharge shown to the satisfaction of the director to be attributable solely to deliberate misconduct in wilful disregard of the employing unit's interest." G. L. c. 151A, Section 25 (e) (2). The section itself does not specifically allocate the burden of persuasion. Thus, we look to the entire statute to discern the intention of the Legislature. See Negron v. Gordon, 373 Mass. 199, 201-202 (1977), citing Holbrook v. Holbrook, 1 Pick. 248, 250 (1823). In other parts of the statute, the Legislature used explicit language to place the burden of persuasion on the employee. For example, Section 25 (e) (1) disqualifies claimants who have left work "voluntarily without good cause attributable to the employing unit or its agent." The section states that "[n]o disqualification shall be imposed if such individual establishes to the satisfaction of the director that he left his employment in good faith . . ." and "[a]n individual shall not be disqualified . . . if such individual establishes to the satisfaction of the director that his reasons for leaving were for such an urgent, compelling and necessitous nature as to make his separation involuntary" (emphasis added). G. L. c. 151A, Section 25 (e), second par. See Sohler v. Director of the Div. of Employment Sec., 377 Mass. 785, 788 n.1 (1979). "[W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present." Beeler v. Downey, 387 Mass. 609, 616 (1982).

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Further, in claims under Section 25 (e) (1), the claimant is the party most likely to have information about his reasons for leaving work and therefore is required to carry the burden of persuasion. By contrast, under Section 25 (e) (2), the board must take into account the employer's expectations of the employee, the notice to the employee of these expectations, and the reasonableness of the expectations. See, e.g., Jean v. Director of the Div. of Employment Sec., 391 Mass. 206, 209 (1984); Moore v. Director of the Div. of Employment Sec., 390 Mass. 1004 (1983); Torres, supra at 780; Garfield, supra at 97. Because evidence bearing on those factors is found in the employer's possession, the employer ought to bear the burden of producing such evidence and persuading the board of its sufficiency. See P.J. Liacos, Massachusetts Evidence 41 (5th ed. 1981) ("burden of persuasion is on the party who . . . has freer access to the evidence"). Moreover, such evidence disqualifies a claimant who has otherwise established eligibility under Section 24. Whether wilful misconduct is considered a statutorily-created exception or an affirmative defense, principles of statutory construction dictate that the employer, as the party raising the exception or defense, must bear the burden of persuasion. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 617 (1983). See generally P.J. Liacos, supra at 40-44. [Note 7]

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Our interpretation is consistent with decisions in other jurisdictions interpreting similar statutory provisions. See, e.g., Magma Copper Co. v. Arizona Dep't of Economic Sec., 128 Ariz. 346 (Ct. App. 1981); Arvada v. Industrial Comm'n of Colo., 701 P.2d 623 (Colo. App. 1985); Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221 (1960); Roll v. Middleton, 105 Idaho 22 (1983); Potts v. Review Bd. of Indiana Employment Sec. Div., 475 N.E.2d 708 (Ind. App. 1985); Cosper v. Iowa Dep't of Job Serv., 321 N.W.2d 6(Iowa 1982); Charbonnet v. Gerace, 457 So. 2d 676 (La. 1984); Dubois v. Louisiana Dep't of Labor, Office of Employment Sec., 427 So. 2d 645 (La. App. 1983); Wallace W. Carlson Co. v. Hasler, 351 N.W.2d 688 (Minn. App. 1984); Adelsman v. Northwest Airlines, Inc., 267 Minn. 116, 123 (1963); Unemployment Comp. Bd. of Review v. Bacon, 25 Pa. Commw. 583, 586 (1976); In re Therrien, 132 Vt. 535 (1974); Kansas City Star Co. v. Department of Indus., Labor & Human Relations, 60 Wis. 2d 591, 602 (1973).

Our holding expressly limits the broad statement in Smith v. Director of the Div. of Employment Sec., 384 Mass. 758, 761 (1981), that the claimant "bears the burden of persuasion on issues affecting his eligibility for unemployment benefits." To the extent that cases following Smith have expressly or impliedly placed the burden of persuasion on the claimant on issues bearing on disqualification for benefits under Section 25 (e), (2), they will no longer be followed. See, e.g., White v. Director of the Div. of Employment Sec., 395 Mass. 635 (1985); DiNatale v. Director of the Div. of Employment Sec., 393 Mass. 655 (1985); Rioni v. Director of the Div. of Employment Sec., 392 Mass. 436 (1984).

In sum, the claimant still must meet the initial burden of establishing eligibility for benefits. Conley v. Director of the Div. of Employment Sec., 340 Mass. 315, 319 (1960). Farrar v. Director of the Div. of Employment Sec., 324 Mass. 45, 50 (1949). Once the claimant establishes eligibility, the burden is on the employer to persuade the director that the employee should be disqualified for wilful misconduct. The director's decision must be based on substantial evidence, and he must

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make subsidiary findings of fact on each issue essential to his decision. Manias v. Director of the Div. of Employment Sec., 388 Mass. 201, 205 (1983).

Because there may have been some misunderstanding as to the burden of persuasion, the board on remand may consider evidence on deliberate misconduct in wilful disregard of the employing unit's interest. Alternatively, the board may send this matter back to the review examiner for findings and a determination on that issue. The judgment of the District Court is reversed and a new judgment is to be entered remanding this matter to the Division of Employment Security for further proceedings consistent with this opinion.

So ordered.