WILLIAM FAHEY v. DIRECTOR OF THE DIVISION 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-313

WILLIAM FAHEY

vs.

DIRECTOR OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, William Fahey, appeals from a judgment of

the District Court affirming the Department of Unemployment

Assistance (DUA)'s determination that Fahey is ineligible for

unemployment insurance (UI) benefits. We affirm.

Background. We summarize the factual findings of the DUA

review examiner (examiner), which were adopted by the DUA's

board of review (board). Where necessary, we supplement those

findings with materials from the administrative record. Fahey

was employed by the town of Andover as full-time director of a

youth program from January 18, 1994, until May 10, 2021. During

his tenure, the town gave Fahey a cellular telephone and a

1 Town of Andover.
laptop computer, both exclusively for use in his position at

work. The town also provided Fahey with a copy of the town's

employee handbook. The handbook contained policies on, among

other things, internet use and public relations which read in

relevant part:

"Personal and other unauthorized use of the Town's E-
mail and Internet is strictly prohibited . . . .
[U]nder no circumstances may employees create, send or
retrieve sexually or otherwise offensive, derogatory
or harassing messages to employees or others by e-mail
or the Internet. Violations of such standards may
result in disciplinary action up to and including
discharge."

In approximately 2011, Fahey met a sixteen year old female

high school student, whom we shall call Sally. She was a

participant in the youth program under Fahey's supervision. In

2016, Sally alleged that Fahey had "engaged in inappropriate

conduct when she was a minor" in the youth program. As a result

of the allegations, the town placed Fahey on paid administrative

leave beginning February 5, 2021.

In April 2021, the town hired a third party to conduct an

investigation into the allegations that Fahey "engaged in . . .

sexually inappropriate behavior with a woman years earlier."

The investigator concluded that Sally's allegation that Fahey

engaged in sexually inappropriate behavior toward her was "not

credible." However, the investigation revealed that Fahey

"hugged program participants and told them that he loved them."

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In addition, the investigator determined that Fahey stayed

involved with Sally after she turned eighteen and had left the

youth program. The investigator's inquiry also included a

search of Fahey's town-issued cellular telephone, which revealed

personal text messages between Fahey and Sally; in some

messages, Fahey told her that she was beautiful and that he

loved her. On one occasion, Fahey met Sally at his workplace

from around 9:00 P.M. until midnight and then drove her home in

his personal vehicle. The investigation also revealed that

Fahey accessed and viewed a pornographic video of Sally. After

Fahey watched the video, he brought the video to the attention

of Sally's mother, and they watched the video together.

As a result of the investigation, the town terminated Fahey

from his position as director of youth services on May 10, 2021.

Subsequently, Fahey filed for UI benefits. After review, the

DUA issued a notice of disqualification finding Fahey ineligible

for benefits pursuant to G. L. c. 151A, § 25 (e) (2), beginning

May 9, 2021, and indefinitely thereafter. Fahey appealed the

notice of disqualification, and two evidentiary hearings were

held.

Ultimately, the examiner affirmed the DUA's determination

on the grounds that Fahey's interactions with Sally and her

mother resulted in violations of the town's sexual harassment

and internet use policies, and the professional boundaries of

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his position. The examiner determined that Fahey's behavior

constituted "deliberate misconduct in wilful disregard of the

[employer's] interest." Fahey appealed the examiner's decision

to the board.

The board issued a decision affirming the examiner's

decision on the grounds that Fahey "engaged in deliberate

misconduct in wilful disregard of the employer's interest,"

"violated the email and internet use policy . . . that requires

employees to maintain a professional manner at all times," and

"crossed professional boundaries."2 It also concluded that

"[n]othing in the record suggests that there were mitigating

circumstances that required [Mr. Fahey] to act" as he did. As

to Fahey's interaction with Sally's mother, the board concluded

that the examiner "reasonably concluded that viewing the video

. . . was unprofessional and contrary to how the employer

expected its employees to interact with the public."

Fahey appealed the board's decision to the District Court

pursuant to G. L. c. 151A, § 42. The judge concluded that the

board's decision was supported by substantial evidence and

affirmed the board's determination that Fahey was ineligible for

UI benefits.

2 Of note, the board did not agree with the examiner's
conclusion that Fahey's conduct violated the employer's sexual
harassment policy.

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Discussion. An administrative agency's decision may only

be overturned if it is "unsupported by substantial evidence," or

the decision is "arbitrary or capricious, an abuse of

discretion, or otherwise not in accordance with law."

Commonwealth v. Commonwealth Employment Relations Bd., 101 Mass.

App. Ct. 616, 622 (2022), citing G. L. c. 30A, § 14 (7).

"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). Our review of the board'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 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).

As relevant here, G. L. c. 151A, § 25 (e) (2) bars an

employee from receiving UI benefits if they were terminated due

"to deliberate misconduct in wilful disregard of the employing

unit's interest." Fallon Community Health Plan, Inc. v. Acting

Director of the Dep't of Unemployment Assistance, 493 Mass. 591,

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592 (2024), quoting G. L. c. 151A, § 25 (e) (2). In determining

an employee's state of mind, "the factfinder must take into

account the worker's knowledge of the employer's expectation,

the reasonableness of that expectation and the presence of any

mitigating factors" (quotations and citations omitted). Fallon

Community Health Plan, Inc., supra, at 593.

We conclude that the board appropriately reviewed the

entire record and its conclusion was supported by substantial

evidence. On appeal, Fahey asserts that the board ignored

"significant mitigating factors" regarding his state of mind.3

All of Fahey's arguments were considered and properly rejected.

As set forth supra, there was substantial evidence that Fahey

used his town-issued cellular telephone to send text messages to

Sally which "crossed professional boundaries," viewed a

pornographic video of Sally and then showed it to her mother,

and met alone with Sally on the employer's premises late at

night.

Additionally, the board's finding that Fahey's "conduct was

deliberate," such that he was aware of his actions and probable

consequences, was substantially supported by the evidence. The

3 Fahey lists various "mitigating factors," including that
he helped Sally at her family's request and because Sally was
"mentally unhealthy." We defer to the agency's determination
that these mitigating factors were nonexistent. See Lincoln
Pharmacy of Milford, Inc., 74 Mass. App. Ct. at 431.

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board concluded that there was "no suggestion that any of [his]

actions . . . were accidental."4 The board assessed whether

there existed any mitigating circumstances sufficient to justify

Fahey's misconduct by reviewing the employer's interest "to

provide 'recreation, educational, and cultural programs for

youngsters.'" The board was unable to find anything in the

record to suggest "there were mitigating circumstances that

required [Fahey] to" act the way he did. Thus, the board

properly reviewed the evidence and concluded there were no

circumstances which negated the willfulness of Fahey's

disqualifying conduct. See Gupta v. Deputy Director of the Div.

of Employment & Training, 62 Mass. App. Ct. 579, 586-587 (2004).

The judge did not err in upholding the board's decision

that Fahey was disqualified from UI benefits due to his

4 In contrast to Fahey's assertion that he does not recall
being provided with the employee handbook, he testified at the
hearing that he was familiar with the town's public relations
policy regarding the expectation that "employees will maintain a
professional manner at all times." The board thus concluded
that Fahey was "aware of the employer's expectation" regarding
these policies.

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deliberate misconduct in willful disregard of the employer's

interest.5

Judgment affirmed.

By the Court (Vuono,
Brennan & D'Angelo, JJ.6),

Clerk

Entered: April 15, 2025.

5 We see no merit to Fahey's argument that it was improper
to not allow cross-examination of a DUA witness who had no
independent knowledge of the allegations contained in the
investigator's report. If Fahey felt it was necessary to
question the investigator directly, he could have asked for
further time to summons the investigator to testify. See 801
Code Mass. Regs. § 1.02(10)(i) (2020). He did not do so.

6 The panelists are listed in order of seniority.

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