Shriver Nursing Services, Inc. v. Commissioner of the Division of Unemployment Assistance

Green, J.

(dissenting). I agree with the majority’s conclusions that Milinazzo believed that Shriver’s client condoned her sleeping on the job, and that falling asleep is not inherently inadvertent (so that doing so never can constitute a knowing violation of an employer’s policy). However, because the review examiner applied an incorrect legal standard in evaluating Milinazzo’s eligibility for benefits, he did not reach the question whether her violation was wilful misconduct within the framework set *376 out in Wedgewood v. Director of the Div. of Employment Security, 25 Mass. App. Ct. 30, 33 (1987). As observed in Wedgewood, supra, “sleeping on the job may constitute such misconduct in wilful disregard of an employer’s interest as to justify the denial of unemployment compensation benefits. However, each such case must be examined individually in light of any mitigating circumstances.” (Emphasis supplied.) The majority undertakes that individualized assessment of the circumstances in the present case, based on the administrative record, concluding that Milinazzo’s conduct warrants denial of benefits. However, as we observed in Norfolk County Retirement Sys. v. Director of the Dept. of Labor & Workforce Dev., 66 Mass. App. Ct. 759, 763-764 (2006):

“Our review of the board’s decision must ‘give due weight to the [agency’s] experience, technical competence, and specialized knowledge[,] ... as well as to the discretionary authority conferred upon it.’ O’Brien v. Director of the Div. of Employment Security, 393 Mass. 482, 486 (1984), quoting from G. L. c. 30A, § 14(7). We do not act as a fact finder in employment security cases, because it remains ‘the agency’s responsibility to weigh the evidence, find the facts, and decide the issues.’ Manias v. Director of the Div. of Employment Security, 388 Mass. 201, 205 (1983). See Guarino v. Director of the Div. of Employment Security, 393 Mass. 89, 92 (1984). Our limited function is to determine whether the board of review applied correct legal principles in reaching its decision, whether the decision contains sufficient findings to demonstrate that the correct legal principles were applied, and whether those findings were supported by substantial evidence within the meaning of G. L. c. 30A, § 14(7)(e). See Guarino v. Director of the Div. of Employment Security, supra at 92-93; O’Brien v. Director of the Div. of Employment Security, 393 Mass, at 485.”

I respectfully disagree with the majority’s suggestion that the present case contains no disputes of fact or issues of substantial evidence. See ante at 374 n.8. Though the board is incorrect in its assertion that falling asleep never can constitute a knowing violation, the Wedgewood framework explicitly envisions a *377 particularized assessment of the facts of each case. In my view, settled principles of administrative law require that assessment to be performed by the agency in the first instance, and I accordingly would remand the case to furnish the review examiner and the board the opportunity to do so. 1

Contrary to the suggestion of the majority, see ante at 375 n.11, I do not envision any need for introduction of additional evidence following remand. Instead, I believe that the weighing and assessment of the evidence already in the record against the Wedgewood standard is the prerogative of the hearing examiner in the first instance, and is not the proper function of an appellate court.