MICHELLE DONOVAN BOUZAN 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

23-P-31

MICHELLE DONOVAN BOUZAN

vs.

DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Boston Municipal Court

judgment upholding a decision of the board of review of the

Department of Unemployment Assistance (board) denying her

unemployment benefits on the ground that she voluntarily

resigned from her position without good cause attributable to

her employer, Babson College (Babson). 2 On appeal, the plaintiff

claims that the review examiner's findings were insufficient,

and his conclusions were erroneous. The plaintiff also claims

1 Babson College.

2The board denied the plaintiff's application for review of
the review examiner's decision pursuant to G. L. c. 151A, § 40,
making the review examiner's decision the final decision of the
board.
that the judge abused his discretion in not remanding for the

taking of further evidence. We affirm.

Discussion. We review a decision of the board concerning

an individual's entitlement to unemployment assistance to

determine whether it contains sufficient findings, whether those

findings are supported by substantial evidence, and whether the

board applied correct legal principles in reaching its decision.

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

Mass. 24, 26-27 (2011); Tri-County Youth Programs, Inc. v.

Acting Deputy Director of Div. of Employment & Training, 54

Mass. App. Ct. 405, 408 (2002). Although no deference shall be

given to the judge's decision under these circumstances, see

Curtis v. Commissioner of Div. of Unemployment Assistance, 68

Mass. App. Ct. 516, 519 (2007), this 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." G. L. c. 30A, § 14. "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." DiGiulio v. Director of Dep't of

Unemployment Assistance, 94 Mass. App. Ct. 292, 293 (2018),

quoting Coverall N. Am., Inc. v. Commissioner of Div. of

Unemployment Assistance, 447 Mass. 852, 857 (2006).

2
Under G. L. c. 151A, § 25 (e), an employee who leaves her

position voluntarily is disqualified from receiving unemployment

assistance unless she can establish by substantial and credible

evidence that she had good cause for leaving attributable to her

employer or can establish that her reasons for leaving were for

such an urgent, compelling, and necessitous nature as to make

her separation involuntary. See Still v. Commissioner of

Employment & Training, 423 Mass. 805, 809 (1996). "[A]

resignation that might otherwise appear voluntary will be deemed

involuntary if the employee reasonably believed that [her]

discharge was imminent." Connolly, 460 Mass. at 25, citing

White v. Director of Div. of Employment Sec., 382 Mass. 596,

598-599 (1981).

Here, the plaintiff claims that she involuntarily resigned

under the reasonable belief that her termination was imminent.

The hearing examiner's findings and the administrative record

indicate that as of July of 2021, Babson instituted COVID-19

protocols that required all unvaccinated employees, such as the

plaintiff, to wear masks indoors while on campus and test weekly

for the virus but did not require the same of any vaccinated

employees. In early July of 2021, the plaintiff reached out to

both human resources and her supervisor with concerns about

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returning to in-person work 3 and requested an accommodation,

which was not provided due to the nature of her position as an

operations coordinator for undergraduate and graduate

admissions.

On July 9, 2021, she had a virtual meeting with Babson's

director of admissions, after which the plaintiff received an

email message stating she would need to report to work in person

3 The plaintiff claims that the review examiner
mischaracterized her position as merely not wanting to follow
the in-person COVID-19 protocols for unvaccinated employees.
She states that she consistently complied with these protocols
and had health and safety concerns about working in person
because vaccinated employees and visitors, who could still
contract and spread the virus, were not required to mask indoors
or test weekly. In support of this claim, the plaintiff
submitted some documents of her COVID-19 test results from 2020
and early 2021. Notably, however, none of these results were
received after Babson updated its COVID-19 protocols in July of
2021. The mere fact that the plaintiff complied with the in-
person protocols when they applied to all individuals,
regardless of vaccination status, does not prove that she
desired to follow the protocols once they no longer applied to
vaccinated individuals in July of 2021. The plaintiff also
testified at the hearing that she did not follow the updated
protocols because she believed it would have revealed her
vaccination status to others by nature of the fact that her
colleagues were all vaccinated. Moreover, the plaintiff's
letter of resignation stated, "I continue to feel isolated and
discriminated against and bullied into complying to protocols
that are only in place for a specific group of people. I feel
pressured to follow a protocol that is causing division and
fear, especially in light of information that is coming forth
showing that fully vaccinated people can still spread the
virus." Thus, the review examiner reasonably could have found
that the plaintiff did not want to follow the updated in-person
protocols for unvaccinated employees. This was, in fact,
Babson's position in objecting to the plaintiff's entitlement to
unemployment assistance.

4
on July 12, 2021, and follow COVID-19 protocols, as the failure

to do so "will result in disciplinary action." However, July

12, 2021, as well as the following day, were previously approved

vacation days for the plaintiff. Within four hours of receiving

the director's email message, the plaintiff submitted an

immediate resignation letter by email, in which she described

how she felt forced to resign from her position due to the

updated COVID-19 protocols, lack of an accommodation, and email

message she received from the director.

The review examiner did not err in concluding that the

plaintiff failed to meet her burden of establishing through

substantial and credible evidence that she left work

involuntarily under the reasonable belief that her termination

was imminent, or for urgent, compelling, and necessitous

reasons. The hearing examiner found that Babson provided

credible testimony that the July 12, 2021, date to return to

work was a mistake and that the plaintiff would not have been

expected to report to work on a scheduled vacation day. The

plaintiff does not dispute that she failed to make any further

inquiry of the director as to her scheduled vacation days and

instead sent her letter of resignation in response. The hearing

examiner also credited Babson's testimony that no employees were

discharged for not being vaccinated and the plaintiff's job was

not in jeopardy at the time she quit. As this court defers to

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the board on issues of credibility and the weight of the

evidence and will not displace the board's choice between

conflicting views, see Curtis, 68 Mass. App. Ct. at 520-521, the

review examiner could properly find that the plaintiff's belief

that she would be imminently terminated was unreasonable.

Alternatively, the plaintiff claims that she voluntarily

resigned for good cause attributable to Babson, i.e., that

Babson failed to address her health and safety concerns. The

plaintiff relies in part on Carney Hosp. v. Director of Div. of

Employment Sec., 382 Mass. 691 (1981), which held that an

employee's reasonable belief that her work environment was

causing a recurrent, severe skin infection constituted a reason

of "urgent, compelling, and necessitous nature" to render her

resignation involuntary. However, the plaintiff did not have a

reasonable belief that her work environment, itself, was causing

any severe health issues; in fact, the record lacks any evidence

that anyone, including the plaintiff, actually contracted COVID-

19 after Babson updated its COVID-19 protocols. Moreover, the

hearing examiner found that Babson's COVID-19 protocols were

reasonable to protect its staff and students during a global

pandemic, did not require the plaintiff to be vaccinated, and

provided a reasonable alternative if she chose to remain

unvaccinated, and that the plaintiff was not "singled out" by

them. Therefore, the hearing examiner did not err in concluding

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that the plaintiff voluntarily resigned without good cause

attributable to her employer.

Finally, the plaintiff claims that the judge abused his

discretion in not remanding for the taking of further evidence

concerning her allegations of harassment, discrimination,

imminent discharge, and an unsafe work environment. This claim

was not raised below, and it is therefore waived. See Green v.

Brookline, 53 Mass. App. Ct. 120, 128 (2001).

Even if the claim was not waived, it has no merit.

Substantial evidence regarding these allegations was adduced

through testimony at the hearing and in documents the parties

submitted to the board and the review examiner. The review

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examiner's findings also sufficiently indicate that he

considered these claims and rejected them.

Judgment affirmed.

By the Court (Meade,
Englander & Hodgens, JJ. 4),

Assistant Clerk

Entered: May 15, 2024.

4 The panelists are listed in order of seniority.

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