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, Archway, Inc. 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 from her employment but not for reasons of misconduct 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 had worked for this employer a period of eleven months through August 28, 2000. It was alleged by the employer that the claimant had an unsatisfactory employment record and was issued four separate warnings. The warnings indicate that the claimant refused to sign the warnings. The claimant refutes the issuance of those warnings. Approximately two weeks prior to the incident of termination, the claimant gave a notice of resignation. The employer accepted that notice of resignation. The claimant was scheduled to work until August 30, 2000. On August 28 a confrontation developed between the claimant and her superior, the manager. The General Manager was not present during that confrontation but did appear subsequently. It was alleged that during the course of that confrontation, the claimant became abusive. That situation was reported to the General Manager and the claimant was terminated on August 28, 2000. The claimant denies being abusive to the manager."

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

"The issue 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.

In order to impose a disqualification under the provisions of Section 28-44-18, there must be proof that the person who was discharged committed an act of misconduct in connection with the work.

Section 28-44-18 which 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.

The burden of proof in establishing misconduct rests solely upon the employer. The evidence presented establishes that the General Manager was not present during the actual alleged incident. There has been no direct testimony presented from the employer regarding the actual occurrences during the alleged confrontation. The sole, direct testimony is from the claimant regarding the events of August 28, 2000 and the claimant denies the employer's allegations. Under these circumstances, I cannot find that the employer has established by a preponderance of evidence that the claimant engaged in an act of misconduct on August 28, 2000. In the absence of that evidence, I must hold the claimant's termination is under other than disqualifying conditions and benefits may not be denied on this issue."

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 work shall thereby become ineligible for benefits for the week in which that discharge occurred and until he establishes to the satisfaction of the director that he has, subsequent to that discharge, had at least four (4) weeks of work, and in each of that four (4) weeks has had earnings of at least twenty (20) times the minimum hourly wage as defined in chapter 42 of this title. (Emphasis added.)

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 efficiency, 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.

A review of the record shows that although the claimant offered a resignation effective August 30, 2000, that the claimant was terminated on August 28, 2000. The burden rests with the employer to prove by a fair preponderance of the evidence that the claimant committed an act of misconduct. There is substantial probative and reliable evidence based upon the testimony of the general manager and the claimant to make a finding of failure to establish misconduct by a preponderance of the evidence.

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.