ADAM MOUCHARITE v. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-364

ADAM MOUCHARITE

vs.

DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment of the District Court

affirming a determination by the Department of Unemployment

Assistance (DUA) that he is ineligible for unemployment benefits

pursuant to G. L. c. 151A, § 25 (e) (1).2 On appeal, the

plaintiff claims that the DUA review examiner (examiner) erred

in determining that the plaintiff resigned without good cause

and by making unsupported findings. We affirm.

1 State Street Bank and Trust Company.

2Because the DUA board of review (board) denied the
plaintiff's appeal, the DUA review examiner's decision is the
final decision of the board.
Background. We summarize the examiner's factual findings,

supplementing as necessary with materials from the

administrative record. The plaintiff was a vice president and

application developer officer at State Street Bank and Trust

Company (bank) from January 3, 2011, until he resigned on April

1, 2022. He had previously worked for the bank from July 2000

to December 2008. In 2021, the bank's managing director

(director)3 became the plaintiff's supervisor. Unbeknownst to

the plaintiff, the director tasked another employee (employee A)

with managing the plaintiff. This reporting change was not

reflected in the bank's system. Between June 2021 and March 15,

2022, neither the director nor employee A met with the plaintiff

to discuss his job performance.

On February 14, 2022, employee A informed the plaintiff

that he could expect to receive a $9,000 bonus. When the

plaintiff did not receive a bonus, he called employee A, who

responded that he would look into it and call the plaintiff

back. On March 12, when the plaintiff had not yet heard back

from employee A, he emailed the director about his bonus. The

director responded that he would contact the plaintiff on March

14, but he did not.

3 For everyone but the plaintiff, we use the same
terminology used in the DUA decision.

2
On March 14 and 15, the plaintiff emailed the human

resources department to inquire about his bonus. The vice

president of employee relations (vice president) responded that

"she would look into it."

On March 15, the director explained to the plaintiff that

he would not receive a bonus because, according to employee A's

feedback, the plaintiff underperformed in 2021. The plaintiff

responded that he did not work with employee A and had never met

with him to discuss his job performance. The plaintiff followed

up by emailing the vice president, who again said she would look

into his concerns.

The following day, the plaintiff viewed his online 2021

year-end performance evaluation which stated that he

"underperformed." Again, he followed up with the vice

president; again, she responded that she would look into his

concerns. That evening, the plaintiff became very upset; he

experienced stress, anxiety, and heart palpitations and was

unable to sleep. He did not seek medical attention, nor did he

request a leave of absence from the bank.4 The next day, the

plaintiff submitted his resignation with two weeks' notice. He

4 The plaintiff took a leave of absence in 2019 after he had
a heart attack.

3
finished work by April 1, and then filed for unemployment

benefits with the DUA.

An initial hearing, affirmance, and appeal to the DUA board

of review (board) were resolved unfavorably to the plaintiff and

he filed a complaint for judicial review pursuant to G. L.

c. 151A, § 42. The parties then filed a joint motion to remand

the case for a new hearing, which was granted. Following de

novo hearings, the examiner issued a second written decision

affirming the determination that the plaintiff was not entitled

to receive unemployment benefits under G. L. c. 151A,

§ 25 (e) (1) because the plaintiff was not discharged and the

evidence was insufficient to show that he "left work

involuntarily for urgent, compelling, and necessitous reasons."

The board denied the plaintiff's application for review, thereby

affirming the DUA decision. The plaintiff's appeal to the

Attleboro District Court resulted in a judgment for the DUA.

Discussion. a. Standard of review. Our review of the

board's decision is governed by G. L. c. 30A, § 14 (7). See

G. L. c. 151A, § 42. "In reviewing an agency's decision, the

court 'shall give due weight to the experience, technical

competence, and specialized knowledge of the agency, as well as

to the discretionary authority conferred upon it.'" Coverall N.

Am., Inc. v. Commissioner of Div. of Unemployment Assistance,

4
447 Mass. 852, 857 (2006), quoting G. L. c. 30A, § 14 (7). We

review the board's decision to determine "whether [it] contains

sufficient findings to demonstrate that the correct legal

principles were applied, and whether those findings were

supported by substantial evidence." Norfolk County Retirement

Sys. v. Director of the Dep't of Labor & Workforce Dev., 66

Mass. App. Ct. 759, 764 (2006) (abrogated on other grounds by

DiGuilio v. Director of Dep't of Unemployment Assistance, 94

Mass. App. Ct. 292, 294 (2018)). "Substantial evidence" is

"such evidence as a reasonable mind might accept as adequate to

support a conclusion." Lisbon v. Contributory Retirement Appeal

Bd., 41 Mass. App. Ct. 246, 257 (1996), quoting G. L. c. 30A,

§ 1 (6).

b. Substantial evidence. The unemployment statute in

general, and G. L. c. 151A, § 25, in particular, "discourages

those who are not truly compelled to leave work by temporarily

disqualifying those who leave their jobs voluntarily." Raytheon

Co. v. Director of Div. of Employment Sec., 364 Mass. 593, 596

(1974). As applicable here, § 25 (e) (1) places the burden on

the claimant employee to prove "either that he left his

employment for good cause attributable to the employing unit, or

that his reason for leaving was of an urgent, compelling, and

necessitous nature that would render his departure involuntary."

5
Crane v. Commissioner of Dep't of Employment & Training, 414

Mass. 658, 660-661 (1993). Compare State St. Bank & Trust Co.

v. Deputy Director of Div. of Employment & Training, 66 Mass.

App. Ct. 1, 11 (2006) (employees who resigned following lay-off

plan announcement did so for good cause attributable to employer

because they "reasonably feared" they would be laid off) with

Connolly v. Director of Div. of Unemployment Assistance, 460

Mass. 24, 29 (2011) (no good cause attributable to employer

where employee who applied to terminate her employment "was not

compelled to apply," and "did not believe [her] job was in

jeopardy, and left in part for personal reasons").

An employee "has the burden of proving a reasonable attempt

to correct those conditions of employment which he now claims

justified his leaving his employment, unless he can show that

such an attempt would have been futile." Kowalski v. Director

of Div. of Employment Sec., 391 Mass. 1005, 1006 (1984). See

Guarino v. Director of Div. of Employment Sec., 393 Mass. 89,

94-95 (1984) (findings insufficient, in part, to support

conclusion plaintiff left work voluntarily and without good

cause attributable to employer where remedies available to

plaintiff and whether she pursued them were not detailed). In

determining whether the employee has met this burden, the agency

reviews whether the employee took "reasonable means to preserve

6
[their] employment." Norfolk County Retirement Sys., 66 Mass.

App. Ct. at 766, citing Raytheon Co., 364 Mass. at 597-598.

On appeal, the plaintiff asserts that the examiner

erroneously evaluated the circumstances that led to his

resignation. Specifically, he maintains that the mental and

physical distress he endured after viewing his 2021 performance

evaluation, combined with his fear of having a second heart

attack, compelled him to resign on March 17, 2022. He further

asserts that he had good cause to resign in light of his prior

negative experiences with the bank's human resources department.

In sum, the plaintiff maintains that he acted reasonably in

resigning.5 We are not persuaded.

On the night of March 16, 2022, the plaintiff suffered from

anxiety, high blood pressure, and heart palpitations. In some

situations, an employee's health may mandate resignation. See

Cahalen v. Commissioner of Dep't of Employment & Training, 41

5 On appeal, the DUA maintains that the plaintiff waived his
argument that he left work for urgent, compelling, or
necessitous reasons, either because of his health crisis or
because of discrimination or harassment. An argument is waived
when not raised below. See Lincoln Pharmacy of Milford, Inc. v.
Commissioner of the Div. of Unemployment Assistance, 74 Mass.
App. Ct. 428, 436 (2009). These waiver claims are belied by the
record, which includes multiple references to both the
plaintiff's fragile health and to his claims of discrimination
and harassment. Indeed, in its first decision, the DUA
addressed the discrimination or harassment claim. Accordingly,
the plaintiff did not waive this argument.

7
Mass. App. Ct. 26, 27-28 (1996), citing Director of Div. of

Employment Sec. v. Fitzgerald, 382 Mass. 159, 161 (1980)

(employee reasonably left job as welder due to pregnancy). In

assessing whether a case fits this paradigm, the examiner must

evaluate the reasonableness of the employee's resignation

together with the employee's attempts to preserve their

employment. See Norfolk County Retirement Sys., 66 Mass. App.

Ct. at 766, 768. In Dohoney v. Director of Div. of Employment

Sec., 377 Mass. 333, 336 (1979), for example, the Supreme

Judicial Court reasoned that unemployment benefits are not

intended to be paid to "a claimant who, anticipating a necessary

absence from work, fails to take reasonable means to preserve

[his or] her job." The Dohoney claimant made no attempt to

explore the possibility of returning to work when physically

able to do so after childbirth. Id. at 338. The court

emphasized the claimant's inaction and ruled that "it was proper

for the examiner to have concluded that if the claimant had

wanted to preserve her job, she would have requested a leave of

absence." Id.6

6 While it is not necessary to seek a leave of absence to
preserve employment, see Guarino v. Director of Div. of
Employment Sec., 393 Mass. 89, 94 (1984), here, the plaintiff
neither sought such a leave nor allowed the human resources
department time to review his concerns before he abruptly
resigned.

8
Similarly, here, the plaintiff made no attempt to preserve

his employment. He did not request a leave of absence, and

there is no indication in the record that he notified his

supervisor of his health concerns, or otherwise sought

accommodations for his health needs. And by failing to seek

medical attention on the evening of March 16 (or before

tendering his resignation), the plaintiff deprived the examiner

of objective, contemporaneous evidence of the severity of the

plaintiff's health condition, which might have aided his cause.

The plaintiff also maintains that his departure was the

result of discrimination or harassment and asserts that under

430 Code Mass. Regs § 404(5), an employee need not take steps to

resolve a bad employment situation before leaving a position due

to racial, sexual, or other unreasonable harassment. As the

plaintiff acknowledges, he bears the burden of proof and must

"establish[] to the satisfaction of the commissioner" that his

separation was "due to sexual, racial or other unreasonable

harassment" of which "the employer, its supervisory personnel or

agents knew or should have known." G. L. c. 151A, § 25 (e); see

Sohler v. Director of the Div. of Employment Sec., 377 Mass.

785, 788 n.1 (1979) ("The burden of proof as to all aspects of

eligibility for unemployment benefits, including the burden of

establishing good cause, rests with the worker"). He did not

9
carry that burden here. Thus, in the circumstances the examiner

correctly determined that the plaintiff failed to take

reasonable steps to preserve his employment.7

The examiner's determination that the plaintiff's

resignation was "voluntary and without good cause attributable

to the employing unit" was supported by substantial evidence in

the record.

Judgment affirmed.

By the Court (Massing,
Hershfang & Tan, JJ.8),

Clerk

Entered: May 16, 2025.

7 We are similarly unpersuaded by the plaintiff's contention
that seeking a leave of absence or utilizing human resources'
help would have been futile. The plaintiff was granted a leave
of absence in 2019 for health reasons, so he was aware that a
leave of absence was an available alternative. And the
plaintiff's proclaimed distrust of the human resources
department did not excuse him from seeking its intervention, nor
from allowing it more than a day in which to respond to his
complaints.

8 The panelists are listed in order of seniority.

10