Opinion
16-P-575
05-19-2017
George MACHADO v. DIRECTOR OF the DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, George Machado, appeals from a judgment of the Central Division of the Boston Municipal Court Department upholding a decision of the board of review (board) of the Department of Unemployment Assistance (DUA) denying him unemployment benefits stemming from his termination as a Junior Reserve Officer Training Corps (JROTC) teacher in Methuen. On appeal, he claims the judge erred in ordering the entry of the judgment of dismissal because the review examiner (examiner) did not state the specific facts he relied on in determining Machado's state of mind in performing the acts that brought about his termination. He also asserts issue with the review of the video recording shown that facilitated his termination, as well as the DUA's reliance on hearsay testimony during the DUA hearings. We affirm.
In general, to justify a denial of benefits under G. L. c. 151A, § 25(e ) (2), the examiner must make findings as to the claimant's state of mind, that is, that the claimant's misconduct was both "deliberate" and in "wilful disregard" of the employer's interests. Grise v. Director of the Div. ofEmployment Security, 393 Mass. 271, 274 (1984). Machado claims that the examiner's and the board's decisions here must be set aside because neither made specific, affirmative findings regarding his state of mind. Without deciding that the examiner failed to make adequate state of mind findings we observe that "a specific finding regarding state of mind is not required where 'obviously intentional' conduct is present." Id. at 275, quoting from Sharon v. Director of the Div. of EmploymentSecurity, 390 Mass. 376, 378 (1983).
Machado does not dispute that he was employed by the Methuen school district (district) as a high school instructor, that the district reasonably expected him to act in a professional manner and to refrain from exposing students to inappropriate materials, and that the district could terminate his employment if he allowed inappropriate video recordings to be shown to students. Nor does Machado genuinely dispute that he was present in the classroom when "The Amazing Racist" was shown; indeed, as depicted in a photograph taken during that class, Machado effectively concedes that he was located about five feet in front of and facing the classroom's large projection screen, on which a scene from "The Amazing Racist" can be discerned. Although Machado denies he was responsible for that class, Machado's supervisor, Bernard Stansbury, testified to the contrary and the examiner found that Machado was the responsible instructor.
Although Machado now characterizes "The Amazing Racist" as an inoffensive "nonracist comedic spoof" he testified otherwise below, then characterizing the video recording as "extreme" and inappropriate for display to high school students. Machado also agreed that if he "had realized the video was playing, I would have told the kids to turn it off." In short, substantial evidence fully supports the examiner's findings to the effect that: Machado knew that displaying inappropriate video recordings to students was contrary to the district's interests, Machado knew that "The Amazing Racist" was inappropriate for presentation in Machado's class, Machado was in charge of and physically present in class when the video recording was shown, and Machado took no action to prevent the video recording from being shown. While it is true that an actor's "knowledge, intent, or any other state of mind is rarely susceptible of proof by direct evidence," such matters may be established "by inference from all the facts and circumstances in the case." Gupta v. Deputy Dir. of the Div. of Employment & Training, 62 Mass. App. Ct. 579, 584 n.5 (2004). In this case, the natural inference arising from these mostly undisputed facts is that Machado's misconduct was "obviously intentional."
We are also unpersuaded that the examiner's findings are unsupported by substantial evidence to the extent that there was reliance on improper hearsay during the DUA hearings. Hearsay bearing sufficient indicia of reliability constitutes admissible, substantial evidence in administrative proceedings. Embers of Salisbury, Inc. v. Alcoholic Bevs. Control Commn., 401 Mass. 526, 530-531 (1988). The evidence of which Machado complains has such indicia, being well corroborated by other nonhearsay evidence, and the examiner properly could consider and rely on it.
The remainder of Machado's arguments concern, for the most part, the examiner's choices between possible and permissible inferences, credibility, and the relative weight to be afforded certain evidence. As the board observed, the evidence before the examiner was subject to multiple, conflicting inferences. But, as we have noted, it was for the examiner to resolve those conflicts. To the extent we have not explicitly discussed any of Machado's arguments, we have considered and found them to be without merit. The judge properly dismissed the action.
Judgment affirmed.