Dennis Palaza v. Director of the Department of Unemployment Assistance.

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-58

DENNIS PALAZA

vs.

DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal stems from Dennis Palaza's efforts to obtain

pandemic unemployment assistance (PUA) under the Coronavirus

Aid, Relief and Economic Security Act of 2020 (the CARES Act).

See 15 U.S.C. §§ 9021-9034. 1 The department of unemployment

assistance (department) denied Palaza's application for

benefits. The department's board of review (board) affirmed,

and Palaza appealed to the District Court, which granted

judgment to the board. We affirm.

1The PUA provided financial benefits to people who were not
eligible for regular unemployment compensation, including those
who were "unemployed, partially unemployed, or unable or
unavailable to work" in 2020 for certain COVID-19 related
reasons. 15 U.S.C. § 9021(a)(3)(A)(ii)(I). This included
someone who "was scheduled to commence employment and does not
have a job or is unable to reach the job as a direct result of
the COVID-19 public health emergency." 15 U.S.C.
§ 9021(a)(3)(A)(ii)(I)(gg).
Background. After Palaza's March 29, 2020 application for

PUA was denied, he appealed. At an evidentiary hearing, Palaza

testified that after an interview on March 4, 2020, Hub

Construction hired him to start work on March 16, 2020. The

company informed him "at that time, that they were not able to

hire anybody because of the pandemic." Palaza submitted a

written affidavit providing the same information. He also

submitted an affidavit signed by Vincent P. Gratta, vice

president of Hub Construction, which stated, "Mr. Palaza applied

for employment at Hub Construction in Hull, MA around early

March 2020. However, after the shut down we were not taking on

new employees." He offered to answer questions and provided a

telephone number.

The review examiner affirmed the denial of benefits. She

found that the Gratta letter stated only that Palaza had applied

for a job, but the company was not taking on new employees.

Gratta did not say that the company had offered Palaza a

position or that an offer was withdrawn due to the COVID-19

health emergency. Neither affidavit contained any detail as to

pay, hours, or job responsibilities. She also noted that the

affidavits were not notarized.

Palaza sought review from the board, which was allowed. He

provided a copy of his affidavit, which by this time had been

notarized. He also provided a notarized affidavit from a friend

2
stating that the friend had driven Palaza to the construction

company on March 4, 2020, so he could apply for a job. The

board affirmed the department's decision and Palaza appealed to

the District Court pursuant to G. L. c. 151A, § 42. 2 A judge

affirmed the decision of the board and entered a judgment on the

pleadings. This appeal followed.

Discussion. Palaza argues on appeal that the department

exceeded its authority and violated Federal law when it engaged

in fact-finding, rather than rely on his self-certification of

eligibility for PUA. He cites in support United States

Department of Labor, Employment and Training Administration,

Unemployment Insurance Program Letter No. 16-20, Change 6

(September 3, 2021) (letter). That letter provides, in relevant

part, that, "[b]ecause eligibility is based on self-

certification, no further fact-finding is involved."

Our review of the department's determination that a

claimant is disqualified from receiving benefits is "highly

deferential to the agency" (citation omitted), Lincoln Pharmacy

of Milford, Inc. v. Commissioner of the Div. of Unemployment

Assistance, 74 Mass. App. Ct. 428, 431 (2009), and limited to

deciding "whether the decision contains sufficient findings to

2 At the hearing before the judge, counsel for the board
candidly explained how the PUA program worked. Counsel also
explained, and we agree, that lack of notarization of affidavits
should not be held against Palaza.

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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).

Here, the department determined that Palaza was not

eligible for PUA because he did not offer any credible testimony

or documentation that he had received an offer of employment in

2020. It is not reasonable to read the Department of Labor

letter as prohibiting the department from investigating the

veracity of an applicant's self-certification, both because the

statute requires "documentation to substantiate employment," 15

U.S.C. § 9021(a)(3)(A)(iii), and because the letter itself says

that "states are required to take reasonable and customary

precautions to deter and detect fraud" and "[i]t is critical

that states implement processes that ensure payments are being

made only to eligible individuals and that states have

aggressive strategies and tools in place to prevent, detect, and

recover fraudulent payments." Cf. Simmons v. Arizona Dep't of

Economic Sec., 254 Ariz. 109, 113 (2022) ("The ALJ made no

finding that [the PUA applicant's] testimony was not credible").

On this record, we see no error in the department's

conclusion that Palaza was not offered employment in 2020, and

that he was thus not qualified to receive PUA. As the State

agency responsible for administering PUA, the department is

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required to find whether an individual is eligible for

unemployment entitlements. See 20 C.F.R. § 625.9(a)(1). The

statutory framework required Palaza to provide "documentation to

substantiate employment or self-employment or the planned

commencement of employment" in a qualifying time frame. 15

U.S.C. § 9021(a)(3)(A)(iii). The Gratta letter did not state

that Palaza had been offered a job or had an offer rescinded.

The department was not required to credit evidence by Palaza

that, if believed, might support a different conclusion. See

Boston v. Downing, 73 Mass. App. Ct. 78, 83 (2008) (court will

not displace agency's choice between two conflicting views of

evidence). See also Fisch v. Board of Registration in Med., 437

Mass. 128, 138 (2002) (it is agency's role, not court's, to

weigh credibility of witnesses).

Judgment affirmed.

By the Court (Neyman, Henry &
Ditkoff, JJ. 3),

Clerk

Entered: August 5, 2024.

3 The panelists are listed in order of seniority.

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