DEROBBIO, C.J. This matter is before the Court on the complaint of Vincent A. Armenio, M.D., 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 reversed the finding of the Referee that the claimant, Christine B. Derby was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant's last day of work for this employer was on October 13, 2000. The claimant had been employed for approximately four years. She filed a claim for Employment Security benefits on March 6, 2001.

On March 19, 2001 the Director determined the claimant was discharged under disqualifying circumstances as provided for under Section 28-44-18 of the Rhode Island Employment Security Act. On April 2, 2001 the claimant appealed the Director’s decision.

A hearing was held before a Referee on April 19, 2001. The claimant and the employer’s range foreman/property manager appeared and provided testimony. On April 19, 2001 the Referee affirmed the Director, concluding that the claimant’s conduct on September 15, 2000 constituted misconduct. Thereafter, the claimant filed a timely appeal with the Board of Review.

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 not a proper adjudication of the facts and that the claimant was not discharged for misconduct in connection with the work, and reversed the Referee's decision. Thereafter, Vincent A. Armenio, M.D. 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 not a proper adjudication of the facts and that the claimant was not discharged for misconduct in connection with her work was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

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

"The findings of fact contained in the decision of the Referee are affirmed and incorporated into this decision as if fully set forth herein; provided, however the Board makes the following findings which, if in conflict with the Referee’s findings, shall be controlling.

The claimant was employed as an animal caretaker. Her duties included caring for thoroughbred racehorses. The claimant had experience riding racehorses. One of the horses became ill and, after a short illness, succumbed on September 15, 2001. Upon being notified by her employer of the horse’s passing, the claimant became upset at the owner and she uttered certain comments to the employer which the latter determined to be inappropriate. Shortly thereafter, the claimant was informed that she was being terminated with two weeks notice. After two weeks the employer determined that he needed the claimant’s assistance and he extended her termination date an additional two weeks. On October 13, 2000 the claimant’s employment was terminated by the employer."

The Board of Review made the following conclusions:

"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.

The testimony before the Referee established that the claimant [sic] termination came shortly after the death on [sic] one of the employer’s horses. The record is complete that both the employer and claimant were upset over the incident. As a result of emotions resulting from the incident, the claimant uttered words which may be construed as insubordinate or inappropriate.

The remarks easily could have resulted in the employer’s conclusion that the claimant was a disloyal and unsatisfactory worker. However, in order to deny employment security benefits, the employer must show more that [sic] the claimant was an unsatisfactory employee. Rather, the employer must establish that the claimant’s conduct was the result of deliberate conduct directed toward the employer with the intent to harm the employer’s interest.

The record before the Board does not contain sufficient proof that the claimant’s conduct was motivated by a desire to cause the employer harm. Her comments were emotional and made without thinking.

In the case of Turner vs. Department of Employment and Training, Board of Review, 479 A 2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a general definition of the term, "misconduct", as enunciated in Boynton Cab Co. vs. Newbeck, [sic] 237 Wis. 249, 296 N.W. 636 (1941):

"'[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 care-

lessness 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."

We conclude that the claimant’s conduct was an isolated event. Her actions were not intentional. The claimant’s conduct, in this situation, does not constitute misconduct."

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.

This Court concurs with the findings of fact and conclusions of law reached by the Board of Review. The Court reviewed the entire record and the record demonstrates the following testimony by the Employer Representative, Dean Felides, at a hearing before the Referee (Page 7 Transcript).

"A. Well, the 15th, we had a, uh, -- we had a, uh, sick horse. It was a young horse, and, um, Chris noticed that he was, uh, he was getting -- getting sick.

He was dead in his stall when everybody got there in the morning. Uh, Dr. Armenio was the first one to observe it, and, um, when I showed up, and then Chris, and then Chris showed up.

Probably nobody had more of a problem with it than Dr. Armenio did. He was -- he was heartbroken about the horse, but she made some comments to the -- to the -- to the Doctor that the morning when she came in, and it was --

Q. (INAUDIBLE) --

A. -- a series --

Q. the comments?

A. I heard the back end of it. I wasn’t right -- I was probably 20, 30 feet away.

Q. I only want to know what you actually heard.

A. All I -- uh, what I heard was she said you killed him. She says it was your fault, and you killed him. That’s the only part that I heard."

As a result of these comments the petitioner/complainant ordered his employee to be terminated with two (2) weeks’ notice. However, because of the necessity to have continuity in the operation of the farm, the petitioner/complainant extended his employee’s employment an additional two (2) week period.

The claimant (employee) testified as follows to the incident (pages 11 and 12 of the transcript).

"CHRISTINE DERBY:

Being duly sworn, testifies as follows:

EXAMINATION BY MR. TKACZYK:

Q. What happened on that day?

A. The day I got there, I got there just before 7:00, and Vince -- Dr. Armenio was in the barn feeding.

Uh, Dean Felides was not there, and, um, he came down to the car, and I was getting out, and he -- he said the horse was dead, and I said -- I said you should’ve taken him to Tufts, and it kinda pissed me off a little bit, and I told him off, and, uh, he just said -- oh, all I says is like you shouldn’t have horses like this if you can’t take care of ‘em right, and we had -- I got -- during the time before that, and I had the Vet come out.

I had the Vet there. We were taking the temperature. I was giving the shots myself. I was trying to get the antibiotics down his throat, and it was very tough, and it was -- he was a yearling, and it was -- on his, uh, I couldn’t -- it was very hard, and, um, -- but I just -- as that day came, that one, he was dead, I had no qualms that he was gonna die, because Thursday, he was crying and screaming in pain, and there was nothing I could do, because I was told not to get a -- a Vet there; not to use Bristol County Vet -- Veterinarian Hospital at all; not to have them there. So, I couldn’t call anybody.

Q. Now, during that conversation, did you basically tell the Doctor that -- did you accuse him of killing the horse?

A. No, I did not say that.

Q. Now, when you told him off, what exactly did you say?

A. I just more or less said -- he said -- I said to him, you should’ve taken him to Tufts, and you can’t -- if you can’t take care of him right, you should get rid of ‘em all. I did say that."

The record is clear that he terminated her with notice after a four week period, after the alleged act of insubordination. Although he felt that the actions rose to the level of misconduct he needed her assistance and extended her employment.

Taking all of the evidence into consideration, the Board, from the findings of fact, which appear to be uncontradicted, reached its conclusions of law that the employee’s actions were an isolated incident and that the claimant did not act in an intentional, deliberate and wilful disregard of the employer’s interest.

The petitioner had a right to terminate the claimant’s employment. This could be considered an isolated act of bad judgment, but it does not rise to the level of misconduct as defined in Turner v. The Department of Employment Security.

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.