Heard: December 7, 2017.
action commenced in the Chelsea Division of the District
Court Department on December 21, 2015.
case was heard by Benjamin C. Barnes, J.
A. Guberman, Special Assistant Attorney General (Carolyn E.
Hunt also present) for the defendant.
M. Zankowski for the plaintiff.
Present: Agnes, Blake, & McDonough, JJ.
sole question before us is whether the plaintiff, Jessica
DiGiulio, is entitled to unemployment benefits after leaving
her employment in Massachusetts to relocate to Puerto Rico
with her husband, a special agent with the Drug Enforcement
Administration (DEA), who was transferred to work on the
island. We conclude that the twelfth paragraph of G. L. c.
151A, § 25 (e), controls the outcome of this case and
precludes DiGiulio from receiving unemployment benefits. We
therefore reverse the judgment issued by the District Court
essential facts are not in dispute. DiGiulio worked full time
as a registered nurse for Ideal Image of Massachusetts
beginning in May, 2014. Her husband works as a special agent
for the DEA. In April, 2015, DiGiulio's husband was
notified by the DEA that he would be transferred to Puerto
Rico in July, 2015, for a period of at least three years.
DiGiulio subsequently informed her manager that she intended
to resign from her position in August, 2015, due to her
husband's relocation. Her husband moved to Puerto Rico
and began his assignment on July 27, 2015. DiGiulio's
last day of work was on August 26, 2015. She remained in
Massachusetts for approximately one month before joining her
husband in Puerto Rico.
filed a claim for unemployment compensation with the
Department of Unemployment Assistance (department) in
September, 2015. In paperwork DiGiulio submitted to the
department, she explained that she could no longer continue
working at her job due to her "[h]usband's job
relocating us to [P]uerto [R]ico." The department issued
a notice of disqualification on September 25, 2015. On
September 30, 2015, DiGiulio requested a hearing on the
matter, and a telephonic hearing was conducted before a
department review examiner on October 20, 2015. The review
examiner concluded that DiGiulio was disqualified from
receiving unemployment compensation on the basis that she
left her employment to relocate with her husband to Puerto
Rico. DiGiulio appealed the decision of the review examiner
to the department's board of review (board), which denied
review and thereby adopted the review examiner's
decision. See G. L. c. 151A, § 41 (c). Thereafter,
DiGiulio filed a complaint for review in the District Court.
The judge ultimately vacated the decision of the board and
ordered the department "to pay [DiGiulio] her
unemployment compensation, if she is otherwise
eligible." The judgment was stayed pending final
disposition of the department's appeal, which is now
review the board's decision based on the standards set
forth in G. L. c. 30A, § 14 (7). See G. L. c. 151A,
§ 42. "The agency's decision may only be set
aside if the court determines that the decision is
unsupported by substantial evidence or is arbitrary or
capricious, an abuse of discretion, or not in accordance with
law." Coverall N. Am., Inc. v. Commissioner
of the Div. of Unemployment Assistance, 447 Mass. 852,
857 (2006). "[W]here an agency determination is based on
a question of law, we review the matter de novo."
Cape Cod Collaborative v. Director of the
Dep't of Unemployment Assistance, 91 Mass.App.Ct.
436, 440 (2017) .
Laws c. 151A, § 25, sets forth a number of circumstances
under which a claimant may be disqualified from receiving
unemployment benefits. Subsection (e) of G. L. c. 151A,
§ 25, has been amended numerous times since it was first
enacted in 1941. The first paragraph of G. L. c. 151A, §
25 (e), provides that a claimant may be barred from receiving
unemployment benefits where she leaves her employment
"voluntarily unless the employee establishes by
substantial and credible evidence that [s]he had good cause
for leaving attributable to the employing unit or its
agent." The third paragraph of § 25 (e) (paragraph
three), however, goes on to provide that "[a]n
individual shall not be disqualified from receiving benefits
under the provisions of this subsection, if such individual
establishes to the satisfaction of the commissioner that his
reasons for leaving were for such an urgent, compelling and
necessitous nature as to make his separation
involuntary." G. L. c. 151A, § 25 (e) . There are
decisions of both this court and the Supreme Judicial Court
recognizing that a claimant's personal circumstances,
including relocating with one's spouse or partner to
another locality, may constitute such "urgent,
compelling and necessitous" reasons for leaving gainful
employment so as to render the claimant's
"separation involuntary." Id. See
Norfolk County RetirementSys. v.
Director of the Dep't of Labor & Workforce Dev.,
66 Mass.App.Ct. 759, 765 (2006), and cases cited. Indeed, in
Director of the Div. of Employment Sec, v.
Fingerman, 378 Mass. 461, 462, 464 (1979), the Supreme
Judicial Court held that the board properly awarded