COMMONWEALTH OF MASSACHUSETTS APPEALS COURT JOSEPH F. COTRONA. vs. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.

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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

21-P-480 JOSEPH F. COTRONA

vs.

DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After the plaintiff, Joseph F. Cotrona, was fired by his employer for theft, the Department of Unemployment Assistance's board of review (board) ultimately denied him unemployment

benefits. A District Court judge upheld the board's decision.

On appeal, the plaintiff argues that the board's decision lacked evidentiary support, and that his employer failed to produce certain evidence that would have "exonerated" him. We affirm.

Background. The plaintiff's former employer, ABM Industry Groups, LLC (ABM), provides janitorial and other facility

maintenance services for other companies, including Charles River Laboratories (client). The plaintiff had a history with the client spanning fifteen years. In fact, the Department of

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Unemployment Assistance (department) later heard testimony that, before the client contracted out its facilities work to ABM, the plaintiff had worked directly for the client for approximately a decade. ABM had a policy specifically prohibiting "theft, will [sic] damage or unauthorized removal, possession or use of

Company, employee, visitor, supplier, or customer property,

equipment, records or information," and the plaintiff received a copy of that policy when he began working for ABM in 2015. In 2019, ABM fired the plaintiff after it concluded that he had ordered a set of pool anchors for personal use and billed them to the client.

The plaintiff subsequently applied for unemployment benefits with the department. The department denied his benefits pursuant to G. L. c. 151A, § 25 (e) (2), which bars applicants from receiving benefits if they were terminated due to "deliberate misconduct in willful disregard of the employing unit's interest." The plaintiff timely requested a hearing to review that decision.

A review examiner (examiner) then held a four-day hearing.

The examiner reviewed e-mail messages from the plaintiff's e- mail account documenting that the account had been used to order the pool anchors from the vendor. An invoice showed that the pool anchors were billed to the client. The examiner heard testimony that once the pool anchors were delivered, the

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plaintiff called a coworker at ABM to ask him to retrieve them and to place them under the plaintiff's desk while the plaintiff was on vacation. The examiner also heard testimony that the plaintiff's girlfriend had an inground pool, her existing pool anchors were corroded, and she closed her pool for the winter about two weeks after the plaintiff would have received the pool anchors.

Based on the evidence presented, the examiner found that

"the [plaintiff] ordered the pool stake anchors," which were not for the benefit of the client, and charged them to the client.

The examiner rejected as unreasonable the plaintiff's theory that another person must have accessed his office laptop to

place the orders, because "the [plaintiff] was the only employee authorized to place orders with the vendor, emails discussing the order came from the [plaintiff's] email address during the workday, and the [plaintiff] did not raise any questions about the order."

Nevertheless, the examiner ruled that the plaintiff was entitled to unemployment benefits on the theory that he had

"placed the order with at least implied consent, if not

expressed consent, from the client's purchase authorizer." The examiner reached that conclusion even while recognizing that such consent would have been "dubious" and "improper." The sole purported evidentiary basis of the examiner's conclusion that

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the client had consented to the plaintiff's placing the order was that the plaintiff had a long-term relationship with the client and that the client "was not particularly helpful in

producing evidence for [ABM] . . . even though such evidence was requested."

ABM then appealed this decision to the board, which largely adopted the factual findings and credibility determinations of the examiner. However, the board rejected the examiner's

inference that the client somehow consented to the purchase, noting that there was "nothing in either the findings or the record to suggest that the employer or the client authorized buying these pool stakes." In furtherance of its ruling, the board cited to Shriver Nursing Serv., Inc. v. Commissioner of Div. of Unemployment Assistance, 82 Mass. App. Ct. 367, 371

(2012) (without employer's consent, its client "has no authority to define or to waive the standards of performance of the

employment relationship"). The net result was that the board reversed the examiner's decision and denied unemployment

benefits.

Discussion. 1. Substantial evidence. The question of whether the client consented to the plaintiff's purchase is one of fact. In our review of factual findings, the applicable standard of review is "highly deferential to the agency,"

requiring us to accord "due weight to the experience, technical

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competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it" (quotations and citations omitted). Hotchkiss v. State Racing Comm'n, 45 Mass. App. Ct. 684, 695-696 (1998). Given the absence of

evidentiary support for the examiner's inference that the client consented to the purchase, it was proper for the board to

conclude that this finding was unsupported. Compare Boston Mut.

Life Ins. Co. v. Director of Div. of Employment Sec., 384 Mass.

807, 807 (1981) (decision reversed where factual findings by both examiner and board not supported by substantial evidence).

There was ample evidentiary support for the board's finding that the plaintiff purchased the pool anchors for personal use yet billed them to the client. The relevant e-mails came from the plaintiff's account, the plaintiff asked a coworker to hide the anchors once they arrived, and the plaintiff's girlfriend needed new pool anchors at the time the order was placed. In sum, there was substantial evidence that the plaintiff engaged in conduct that he knew was against ABM's interests. See Gupta v. Deputy Director of Employment & Training, 62 Mass. App. Ct.

579, 585 (2004).

2. Spoliation. Before the first hearing date, the plaintiff sent two subpoenas duces tecum to ABM requesting

materials including surveillance footage and phone records from the client's property. Further, at the hearing, the plaintiff's

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counsel asked ABM Human Resources Manager, Connie Stager,

whether she could produce "a record of when people come and go"

based on when their badges were swiped. However, the

surveillance, phone, and badging systems were owned and operated by the client -- not ABM. Although ABM was able to provide one surveillance video from the morning the plaintiff was suspended, Stager explained that this was because the client had already pulled the footage for unrelated reasons. Stager further stated that while she had requested more surveillance footage and the badge records, the client had provided neither to her.

The plaintiff's counsel recognized that Stager "tried to get everything [the plaintiff had] asked [for], but [was]

unsuccessful because [the client] didn't keep their end of it."

During closing arguments, he expressed "frustration" that

"important pieces of evidence that would have exonerated [the plaintiff] were never produced."2 The plaintiff did not argue to the examiner that ABM had violated its discovery obligations or that any sanctions should flow from such violations.3 Nor did

2 The plaintiff's counsel posited that the requested records would have shown that someone else had accessed the plaintiff's work computer to order the pool anchors without his knowledge or consent -- a theory both the examiner and the board rejected as unreasonable.

3 We additionally note that the plaintiff could have sought to enforce the subpoenas through a court order at the time of the hearing. See G. L. c. 30A, § 12 (5). He did not avail himself

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the plaintiff raise the issue to the board or to the District Court judge.

The plaintiff now argues -- for the first time -- that the employer's failure to produce records that would have cleared the plaintiff amounted to spoliation, and that the examiner

abused his discretion when he did not dismiss the case or impose some other sanction on ABM. However, the examiner and board cannot be faulted for not imposing a sanction that was never requested. Furthermore, the plaintiff waived the issue when he did not raise a spoliation argument at the various steps of appeal. See, e.g., Cape Cod Collaborative v. Director of the Dep't of Unemployment Assistance, 91 Mass. App. Ct. 436, 443 n.8 (2017) (argument not raised "before the administrative agency"

was "waived on appeal"); Moronta v. Nationstar Mtge., LLC, 88 Mass. App. Ct. 621, 626 n.12 (2015) ("We do not address

arguments raised for the first time on appeal").4 Accordingly,

4 Our memorandum and order should not be read as our suggesting that such sanctions would have been appropriate. Nothing in the record suggests spoliation; at most, this was an ordinary

discovery dispute. In addition, it appears uncontested that the relevant discovery was in the possession of the client, not the employer. Keene v. Brigham and Women’s Hosp., Inc., 439 Mass.

223, 233 (2003) ("there can be no discovery violation, and hence no rule 37 sanction[, under Mass. R. Civ. P. 37, amended, 423 Mass. 1406 (1996)], when a party fails to produce documents it does not possess").

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we affirm the District Court's judgment upholding the board's decision denying unemployment benefits to the plaintiff.

Judgment affirmed.

By the Court (Milkey,

Massing & Hershfang, JJ.5),

Clerk

Entered: March 23, 2022.

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