SIKORA, J.
Shriver Nursing Services, Inc. (Shriver), employs and places professional nurses in the homes of patients for the delivery of skilled care. From June of 2003 to March of 2009, Shriver employed Renne Milinazzo, a licensed practical nurse. It then terminated her. She applied to the Division of Unemployment Assistance (DUA) for benefits. G. L. c. 151A, §§ 22, 23, 24. Shriver opposed the application. At the conclusion of DUA's adjudicatory process, its board of review (board) awarded her benefits. Shriver appealed to the District Court. G. L. c. 151A, § 42. A judge of that court entered judgment on the pleadings
Background. 1. Facts. The material facts emerging from the adjudication by the DUA are undisputed. Throughout her employment with Shriver, Milinazzo worked full time as an overnight monitor for a boy with cerebral palsy. He breathed through a ventilator and required twenty-four hour per day care.
Shriver's employee manual contained a list of "serious violations" exposing a worker to "immediate termination." It included "sleeping on the job." Milinazzo had read the manual and signed an acknowledgment of her understanding of its provisions on various dates, most recently on March 4, 2008. She testified that she knew that sleeping on the job would not allow her "to do [her] nursing duties and take care of the child to the best of [her] ability."
On August 11, 2008, Milinazzo fell asleep during her shift. The boy's mother learned of the incident but did not report it to Shriver. Then, on February 27, 2009, Milinazzo again fell asleep on duty. The mother again did not report the incident to Shriver at the time of its occurrence.
On March 6, 2009, Milinazzo posted a comment on a social networking Web site, creating an inference that the patient's
Milinazzo met with Shriver personnel to discuss the mother's complaints and admitted to the occurrences. Shriver offered her the choice of termination or resignation; she chose to resign.
Milinazzo then applied for unemployment benefits from the DUA. It first disqualified her from eligibility on the ground that she had left employment voluntarily. G. L. c. 151A, § 25(e)(1). She appealed. A review examiner conducted a hearing, made findings, and reversed the disqualification. The examiner found that Milinazzo had not left employment voluntarily within the meaning of § 25(e)(1), but rather that Shriver had coerced her resignation so as to make it involuntary, and so as to require for disqualification a fault-based ground under § 25(e)(2). In pertinent part, § 25(e)(2), as appearing in St. 1992, c. 26, § 19, disqualifies an applicant from unemployment benefits if she left her employment:
The review examiner determined that Shriver had failed to establish "deliberate misconduct which would allow it to terminate [Milinazzo's] employment and disqualify her from benefits."
Shriver next appealed to the board. After a remand to the review examiner for additional findings, the board affirmed the determination of eligibility for benefits.
In accordance with G. L. c. 151A, § 42, Shriver sought judicial review in the District Court under the standards of the Administrative Procedure Act, G. L. c. 30A, § 14(7). A judge affirmed the DUA decision without opinion or explanation. Shriver has timely appealed to this court. G. L. c. 151A, § 42.
2. DUA reasoning. Upon the facts undisputed by the parties, the board rejected Shriver's challenge to Milinazzo's eligibility with the following rationale.
On appeal the DUA defends this reasoning on the grounds (1) that we should defer to "the experience, technical competence, and specialized knowledge of the [DUA] as well as the discretionary authority conferred upon it," citing G. L. c. 30A, § 14(7); and (2) that Milinazzo did not commit a "knowing violation" of a rule or policy because she had twice fallen asleep "inadvertently."
First, no degree of deference for agency adjudication can salvage the board's condonation rationale. No provision of the statutory scheme and no decisional law support such a notion.
3. Knowing violation of rule or policy. The DUA argues that the board's decision rests also upon the implicit ground that Milinazzo's sleeping incidents could not constitute knowing violations of the prohibition against on-duty sleeping because they were inadvertent lapses. Shriver answers that such a broad exemption would violate statutory purpose and policy.
In 1951 the Legislature inserted the "deliberate misconduct" criterion into the disqualification provision of the unemployment assistance program. St. 1951, c. 763, § 9(e). In 1992 it expanded the basis for disqualification by addition of the "knowing violation" ground. St. 1992, c. 26, § 19. Still, 423 Mass. at 811. Decisions applying the earlier deliberate misconduct standard can provide guidance for application of the later supplemental knowing violation test. "Knowing" requires a conscious intent both (a) to commit some action or behavior, and thereby (b) to violate the employer's rule or policy. Id. at 813. An employee usually must be aware of both elements, the immediate and the consequential. Ibid. See Allen of Mich., Inc. v. Deputy Director of the Div. of Employment & Training, 64 Mass.App.Ct. 370, 380 (2005) (assimilating into knowing violation inquiry antecedent
In this instance Milinazzo clearly knew of Shriver's rule and policy against sleeping on duty. She conceded its importance. She had read the manual and executed a written acknowledgment of its contents. The decisive question is whether she knew that she was falling asleep on the two occasions. The DUA's position is that the inherent inadvertence of falling asleep precludes its knowing character. Both precedent and policy militate against that categorical position. Instead, they require a circumstantial evaluation of a sleeping lapse.
Our most pertinent precedent is Wedgewood v. Director of the Div. of Employment Security, 25 Mass.App.Ct. 30 (1987), a case arising under the wilful misconduct standard. In that instance, a college discharged a custodian for sleeping during his night shift after a prior similar episode had resulted in a warning. The agency denied eligibility for benefits under the wilful misconduct standard, and a trial court judge affirmed. Wedgewood, supra at 31. With citations to cases in other jurisdictions, this court adopted the following approach to termination resulting from on-the-job sleeping.
Id. at 33. In that instance the custodian had accrued a fifteen-year history of satisfactory performance before the two sleeping incidents and was struggling with the multiple personal burdens of a pending divorce and child support payments, personal care of two seriously ill elderly parents, and inadequate time for daily sleep. Id. at 31-32. He had fallen asleep as he sat at a desk in a visible area.
In this case our individualized assessment of the circumstances requires disqualification. The first, and dominant, circumstance is the importance of the employee's responsibility. Milinazzo's assignment was to monitor the operation of life-sustaining medical equipment. The quintessential duty of that mission was alertness. It brought with it the obligation to preempt or to combat fatigue or drowsiness by such cautionary measures as adequate rest, on-the-job physical and mental exercises, safe stimulants, or calls for coverage or replacement. The gravity and sensitivity of the work imposed a commensurate duty of care,
Third, our case contains no mitigating personal circumstances of the nature presented in the Wedgewood case. Milinazzo did not report to the review examiner any personal difficulties or hardship causing her particular fatigue or stress. Shriver retained its burden of proof of ineligibility throughout the administrative process. In the course of its proof, it did not encounter any countervailing evidence of mitigating factors from Milinazzo.
Conclusion. In these circumstances, Milinazzo's instances of sleeping on duty constituted knowing violations of a rule or policy of Shriver within the meaning of G. L. c. 151A, § 25(e)(2). The mother's condonation of such violations was immaterial. The DUA's contrary conclusions are errors of law within the meaning of G. L. c. 30A, § 14(7)(c). We therefore reverse the judgment of the District Court and direct the entry of judgment in favor of Shriver.
So ordered.
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
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.9. Though the board is incorrect in its assertion that falling asleep never can constitute a knowing violation, the Wedgewood framework explicitly envisions a
No principled distinction appears to require different treatment for the knowing violation prong of disqualification of § 25(e)(2). If an employer's condonation were immaterial, all the more so would be that of the client, patient, or customer of the employer.
The DUA's contention that the inherently inadvertent character of falling asleep never can constitute a disqualifying knowing violation proves too much. That rationale would qualify for benefits even habitual sleepers and individuals derelict in the performance of duties important to the safety of others.
