STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

MOORE, J. This matter is before the Court on plaintiff’s appeal from a Decision by the Board of Review denying benefits. The reason for the denial was misconduct by the employee, pursuant to G.L.R.I. 28-44-18.

The case came before a Referee on June 1, 2000 and the Referee affirmed the decision of the Director, denying benefits. The Board of Review held a hearing on June 8, 2000 and affirmed the denial. The employee appealed to the District Court and this Court remanded the case on May 18, 2001 for consideration of an Affidavit by a co-worker. The Board of Review held a hearing on May 31, 2001 and affirmed the earlier action denying benefits. Employee appealed that action.

A denial of benefits for misconduct is a mixed question of law and fact. This Court cannot substitute its judgment for that of the Board or consider credibility. The Board apparently accepted the testimony of the employer that the work at issue, manually cleaning a storm drain, was part of the job and had been performed by other employees. The employee’s position was that the request was retaliatory, that it was unsafe to clean the drain without special equipment, and that this was a novel request, not part of his regular job. The employee refused to go into the wet well on March 29, 2000, was suspended for two days, refused again on April 3 and was terminated.

G.L.R.I. 42-35-15(g) provides a limited scope of review and states "The Court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Therefore, the Court affirms the decision of the Board of Review.