The travel of the case is as follows. The claimant was employed for nine months by the employer. The claimant's last day of work was November 26, 2001. He filed for Employment Security benefits on November 30, 2001. In a decision dated January 3, 2002, the Director determined that the claimant was discharged under disqualifying circumstances, according to the provisions of Section 28-44-18 of  the Rhode Island Employment Security Act. The claimant filed a timely appeal of the decision on January 4, 2002. A hearing on the appeal was held on January 22, 2002, at which time the claimant appeared and testified. The claimant was represented by counsel during the hearing. The employer, with proper notice, failed to appear and testify.

Thereafter, a timely appeal was filed and the matter was heard by the Board of Review. The Board determined that the Referee’s decision was a proper adjudication of the facts, and upheld the Referee's decision. Thereafter, Timothy Agnew filed a complaint for judicial review; jurisdiction for review of the decisions of the Board is vested in the District Court by Rhode Island General Laws § 28-44-52.

The standard of review is provided by Rhode Island General Laws § 42-35-15(g), a section of the state Administrative Procedures Act, which provides as follows:

42-35-15. Judicial review of contested cases.

(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

 

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and

substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of

discretion.

 

Thus, on questions of fact, the District Court " . . . may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are clearly erroneous." Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980) citing Rhode Island General Laws § 42-35-15(g)(5). The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Cahoone v. Board of Review of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968). Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a contrary result. Cahoone v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968). See also D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).

The Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:

The issue before the Court is whether the Board’s determination that the Referee’s decision was a proper adjudication of the facts and that the claimant was discharged for misconduct in connection with his job was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

"I find by a preponderance of testimony and evidence the following findings of fact: The claimant was employed as a driver by the armored car service. The claimant returned from a leave of absence unannounced on November 26, 2001. The claimant was instructed to accompany another driver on his route due to the call-out of the individual assigned to accompany the driver. The claimant refused to accompany the driver and was sent home under suspension. The claimant was subsequently terminated for his refusal to work as assigned."

 

The Board of Review adopted the following conclusions of the Referee:

"The issue involved is whether or not the claimant was discharged from this job under disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act.

 

In cases of termination, the employer bears the burden to prove by a preponderance of testimony and credible evidence that the claimant committed an act or acts of misconduct as defined by the law in connection with his work. In the instant case, the claimant’s testimony supports his refusal to accompany a driver assigned by the employer. While the claimant indicates his concern about whether or not the elderly driver was indeed a safe driver, nothing has been presented to support that he was anything other than a safe and approved driver. In spite of the fact the claimant had just completed four or five safety and driving sessions in which employees were told to alert the employer to any safety issues, that in and of itself does not promote insubordination after the proper employer representatives make a determination. The claimant’s actions were clearly against the best interest of the employer.

 

Therefore, I find and determine that the claimant was discharged under disqualifying circumstances and benefits are denied."

 

An individual who is discharged for reasons of proven misconduct in connection with his work must be held to have been terminated under disqualifying circumstances under the provisions of Section 28-44-18 which provides, in part, as follows:

28-44-18. Discharge for misconduct. -- An individual who has been discharged for proved misconduct connected with his or her work shall thereby become ineligible for waiting period credit or benefits for the week in which that discharge occurred and until he or she establishes to the satisfaction of the director that he or she has, subsequent to that discharge, had at least eight (8) weeks of work, and in each of that eight (8) weeks has had earnings of at least twenty (20) times the minimum hourly wage as defined in chapter 12 of this title for performing services in employment for one or more employers subject to chapters 42 - 44 of this title; provided, however, that any individual who is required to leave his or her work pursuant to a plan, system, or program, public or private, providing for retirement, and who is otherwise eligible, shall under no circumstances be deemed to have been discharged for misconduct. However, if an individual is discharged and a complaint is issued by the regional office of the national labor relations board or the state labor relations board that an unfair labor practice has occurred in relation to the discharge, the individual shall be entitled to benefits if otherwise eligible. For the purposes of this section, "misconduct" shall be defined as deliberate conduct in willful disregard of the employer's interest, or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee's incompetence. Notwithstanding any other provisions of chapters 42 - 44 of this title, this section shall be construed in a manner which is fair and reasonable to both the employer and the employed worker.

 

The standard for defining "misconduct" under section eighteen was provided by the Rhode Island Supreme Court in Turner v. Department of Employment Security, 479 A.2d 740, 741-42 (R.I. 1984), in which the Court quoted from Boynton Cab Co. vs. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1940):

"'[M]isconduct' . . . is limited to conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute. Id. at 259-60, 296 N.W. at 640."

 

In reviewing the full record, the Court finds that there is evidence to show that the claimant refused an assignment to accompany a driver assigned by the employer. There is no evidence on the record to show that the assigned driver was not a safe driver and there was evidence to demonstrate that he was a safe and approved driver. There is evidence on the record to show that the claimant’s actions were against the best interest of the employer and that the claimant was discharged under disqualifying circumstances.

A review of the entire record demonstrates that there is substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.

On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency.

The scope of judicial review by the Court is limited by Section 28-44-54 which in its pertinent part provides:

28-44-54. Scope of judicial review - Additional evidence - Precedence of proceedings. - The jurisdiction of the reviewing court shall be confined to questions of law, and, in the absence of fraud, the findings of fact by the board of review, if supported by substantial evidence regardless of statutory or common law rules, shall be conclusive.

 

Upon careful review of the evidence, this Court finds that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby affirmed.