MARTHA J. BABIZE VS. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & ANOTHER.

MARTHA J. BABIZE VS. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & ANOTHER. [Note 1]

394 Mass. 806

January 10, 1985 - May 13, 1985

Hampshire County

Present: HENNESSEY, C.J., WILKINS, LIACOS, NOLAN, & O'CONNOR, JJ.

A review examiner of the Division of Employment Security was warranted in finding that a project supervisor employed by a federally-funded State education program who certified false payroll records at the suggestion of her supervisor in order to circumvent the effect of impending budget cuts had engaged in deliberate misconduct in wilful disregard of her employer's interest and thus was disqualified by G. L. c. 151A, Section 25 (e) (2), from receiving unemployment benefits. [807-808]

CIVIL ACTION commenced in the Northampton Division of the District Court Department on July 26, 1983.

The case was heard by Richard F. Connon, J.

James W. Nagle for the employer.

Jim Hammerschmith for the employee.

LIACOS, J. On November 24, 1982, Martha J. Babize was discharged from her position as a project supervisor with the Massachusetts Migrant Education Program (MMEP). Babize filed an application for unemployment benefits with the Division of Employment Security (division). Her application was denied pursuant to G. L. c. 151A, Section 25 (e) (2). [Note 2] She appealed from this denial. A hearing was held before a review examiner on March 3, 1983. The review examiner concluded that she properly had been disqualified from receiving unemployment compensation benefits under G. L. c. 151A, Section 25 (e) (2). Babize

Page 807

appealed to the board of review (board), which denied her application for review, thereby making the decision of the director the final decision of the board. See. G. L. c. 151A, Section 41 (c). Babize then sought judicial review in the Northampton District Court in accordance with G. L. c. 151A, Section 42. The District Court judge set aside the decision of the director, holding, without specific findings, that the director's decision was not supported by substantial evidence. The MMEP appeals the judgment of the District Court judge to this court. [Note 3] See G. L. c. 151A, Section 42.

This action arises from the same occurrence which precipitated the case of Jorgensen v. Director of the Div. of Employment Sec., ante 800 (1985). See Jorgensen, supra at 801-803, for a recitation of the basic facts of the present case. The review examiner in the present case [Note 4] made substantially the same findings and conclusion of law regarding Babize as he made regarding Jorgensen in Jorgensen, supra. We conclude, as we did in Jorgensen, and for the same reasons, that the review examiner's findings and conclusion were supported by substantial evidence in the record.

Babize worked as a project supervisor for two years and reported directly to Jorgensen, the project coordinator. As a project supervisor, Babize was, as the review examiner found, a member of "middle management." Her responsibilities at the time in issue included the task of certifying payroll records. She certified employee time sheets and payroll records which were false. Although she testified that she did not know of a prohibition against falsification of payroll records, the review examiner was not required to believe her on that point. See Starks v. Director of the Div. of Employment Sec., 391 Mass. 640 , 643 (1984). She admitted her participation in the falsification scheme, and when asked whether she was in full agreement with Jorgensen in the carrying out of their plan she responded, "It seemed to be the most logical thing to do."

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Although she submitted evidence of falsification of payroll records on other occasions, this evidence was irrelevant to the issue of her wrongdoing in this instance. Prior instances of falsification do not exonerate this act of falsification. Likewise, her argument that she simply was following Jorgensen's instructions, even if supported by the record, would not undermine the review examiner's conclusion that she had engaged in an act of deliberate misconduct in wilful disregard of the employing unit's interest. Like Jorgensen, she was an experienced employee in a responsible position. The review examiner could infer that she knew the danger to the employing unit's interests of her deliberate misconduct. See Jorgensen, supra at 804-805.

The judgment of the District Court is reversed. Judgment is to be entered in favor of the Director of the Division of Employment Security.

So ordered.

FOOTNOTES

[Note 1] Massachusetts Migrant Education Program.

[Note 2] General Laws c. 151A, Section 25 (e) (2), is quoted in Jorgensen v. Director of the Div. of Employment Sec., ante 800 n.2 (1985).

[Note 3] The director of the division has not participated in the appeal.

[Note 4] The review examiner in the present case was also the review examiner in Jorgensen, supra.