V. : A.A. 01-98

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

DEROBBIO, C.J. This matter is before the Court on the complaint of Adedigba A. Akinwunmi, filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor and Training, which upheld the finding of the Referee that the claimant, Adedigba A. Akinwunmi was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed for approximately six months. His last day of work was March 15, 2001. He filed a claim for Employment Security benefits on May 8, 2001. In a Director's decision dated June 20, 2001, it was determined that the claimant was discharged under disqualifying circumstances, under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal. A hearing on the appeal was held on July 18, 2001, at which time the claimant and four employer representatives appeared and testified.

The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant was discharged for misconduct in connection with his work and was thus disqualified pursuant to Rhode Island General Laws § 28-44-18.

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, Adedigba A. Akinwunmi 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:

. . . eligibility for benefits is to be determined in the light of the expressed legislative policy that "Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls upon the unemployed worker and his family." G.L.1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances. Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act. Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597 (1964).

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 work was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

The Board of Review adopted the following findings of fact of the Referee:

"The claimant was employed for six months as a direct care worker in a group home which housed clients who were mentally challenged and others who were in need of direct care for other problems. An employer's policy known and understood by the claimant prohibited any direct care workers or staff from any personal involvement with any residents, male or female. Contrary to the policy, the claimant engaged in a personal relationship with a female resident on several occasions prior to his last day of work, March 15, 2001. Acting on a complaint by the female resident, the claimant's director ordered the claimant suspended on March 17, 2001 pending further investigation. In a preliminary investigation, the claimant denied any involvement, sexual or otherwise, with the resident/client. A subsequent interview on March 30, 2001 resulted in an admission by the claimant of his involvement with the client in light of certain information presented by the employer to the claimant. As a result of the meeting on March 30, 2001, the claimant was formally terminated for having an inappropriate relationship with a client in violation of the employer's rules and policy."

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

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

An individual who is discharged for proved misconduct in connection with the work must be held to have been discharged under disqualifying circumstances within the meaning of Section 28-44-18.

Section 28-44-18 provides, in part, as follows:

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.

In cases of termination, the burden of proof to show misconduct in connection with the work rests solely upon the employer. The most credible testimony presented at the hearing was that of the employer's witnesses, which indicated that the claimant engaged in an inappropriate relationship with a resident/client in violation of the employer's policy known to him, which violation would result in immediate termination because of the nature of the employer's business. While the claimant initially denied any involvement with the client, upon further investigation and inquiry of the claimant, he acknowledged that he did in fact engage in such relationship. Under these circumstances, the actions of the claimant with regard to the resident/client constituted misconduct which was an intentional disregard of the employer's interest and policy and, therefore, he must be denied benefits under the above section of the Act."

Section 28-44-18 of the General Laws of the state of Rhode Island provides:

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. v. 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 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.

The Court reviewed the entire record. The evidence presented, including the testimony of the claimant, indicated that the claimant had a personal relationship with a client/resident of the employer. The record is clear that on the date of termination the claimant had been in a personal relationship with the resident/client. On the credible evidence presented, the employer had sustained its burden that the claimant had engaged in a personal relationship with a resident/client, which is in violation of the employer's policy which was known to the claimant. This conduct is a wilful and wanton disregard of the employer's interest.

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.