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06/19/78 ROBERT E. GOODRIDGE v. DIRECTOR DIVISION

June 19, 1978

ROBERT E. GOODRIDGE
v.
DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY



Middlesex. Petition filed in the District Court of Somerville on March 4, 1975. The case was heard by DeMarco, J.

Hennessey, C.j., Braucher, Kaplan, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

State Administrative Procedure Act. Evidence, Hearsay evidence. Employment Security, Procedure, Findings by board of review. Words, "Substantial evidence."

The opinion of the court was delivered by: Wilkins

In a proceeding before the board of review of the Division of Employment Security, there was insufficient evidence to warrant the review examiner's finding that an employee had left his employer's premises on personal business after having sought and been denied permission to leave. [436-437]

In a proceeding before the board of review of the Division of Employment Security, the exclusion from evidence of portions of an employer's handbook for employees was improper where the employee claimed that in leaving his employer's premises on personal business he acted in reliance on statements in the handbook. [437]

Even though a finding by the board of review of the Division of Employment Security that an employee had left his employer's premises on personal business after having sought and been denied permission to leave was not warranted by the evidence, this court declined to enter judgment granting him benefits and remanded the case to the board of review for a new hearing where the reason for the employee's discharge was unclear on the record and there was evidence which might support a finding against him. [437-438]

The board of review of the Division of Employment Security determined that the appellant, Robert E. Goodridge, was disqualified from receiving unemployment benefits because his discharge from employment was shown "to be attributable solely to deliberate misconduct in wilful disregard of the employing unit's interest." G. L. c. 151A, § 25 (e) (2), as amended through St. 1973, c. 899, § 2.

The review examiner, whose decision is to be treated as that of the board of review (G. L. c. 151A, § 41), found that Goodridge had been warned against leaving his work area, without permission, to attend to personal business. He further found that on June 24, 1974, Goodridge left his employer's premises on personal business after having sought and been denied permission to leave. The review examiner ordered a denial of certain benefits and a reduction of Goodridge's benefit credit.

A District Court Judge affirmed the decision of the board of review. We reverse that judgment because there was no substantial evidence to warrant the finding that Goodridge left his work area after being expressly denied permission to do so and because of the improper exclusion of evidence.

Goodridge worked for the Massachusetts General Hospital (hospital) as an accounts payable clerk. He was discharged on June 25, 1974. A personnel assistant of the hospital testified that Goodridge was discharged because on June 24, 1974, he asked permission to leave his work area, was told he could not, but left anyway. Goodridge testified that he left the hospital to register a complaint against the hospital with the Equal Employment Opportunity Commission. He testified that he pursued his grievance in the manner he did in reliance on statements in the hospital's handbook for employees. The review examiner, however, excluded material in the handbook from evidence.

The issue here is not whether Goodridge was discharged for good cause or whether he was discriminated against. It is whether the Legislature intended that certain unemployment benefits should be denied in the circumstances of a case such as this. Deliberate misconduct alone is not enough. Such misconduct must also be in "wilful disregard" of the employer's interest. Deliberate misconduct in wilful disregard of the employer's interest suggests intentional conduct or inaction which the employee knew was contrary to the employer's interest. See Annot., 58 A.L.R.3d 674, 685 (1974).

There was no substantial evidence (G. L. c. 30A, § 1 [6]) to support the finding that Goodridge was expressly refused permission to leave the hospital on June 24. Therefore, that finding of the review examiner cannot be sustained. Goodridge testified that his supervisor granted him permission to leave. His supervisor testified that Goodridge just left without asking. Although a personnel assistant of the hospital testified that Goodridge sought and was denied permission to leave the hospital, that witness had no personal contact with Goodridge on that day. Neither Goodridge nor his supervisor, the only persons shown to have been directly involved, testified that Goodridge was expressly denied permission to leave the hospital.

The personnel assistant's testimony was hearsay of a character which would have been inadmissible under traditional rules of evidence. Those rules of evidence, of course, do not apply in proceedings under the State Administrative Procedure Act. *fn1 However, an agency finding must be supported by substantial evidence, that is, "such evidence as a reasonable mind might accept as ...


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