STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT,  SIXTH DIVISION

DEROBBIO, C.J. This matter is before the Court on the complaint of Burrillville Racing, 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, James Taylor was entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed four and a half years by the employer. His last date of employment was November 30, 2000. He filed a claim for Employment Security benefits on December 4, 2000. In a Director's decision dated December 18, 2000 it was determined 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 of this decision on December 20, 2000. A hearing on the appeal was held on January 10, 2001 at which time the claimant appeared and testified. Two employer representatives also appeared and provided testimony at the hearing.

The Referee held the claimant was entitled to receive unemployment security benefits, based on the determination that claimant James Taylor was discharged but not for reasons of misconduct in connection with his work and was thus qualified 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, Burrillville Racing 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 not discharged for reasons of 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 four and a half years as a security officer through November 30, 2000. On November 30, 2000 the Director of Security entered the Control Room. He observed the claimant's wife in the Control Room. He asked her to leave and told the claimant he would be fired if it happened again. The Director of Security received information from another security officer, which indicated the claimant had made a spare key for his wife. Based upon this information the claimant was terminated. The claimant admits he has a spare key but keeps it in the glove compartment of his car in the event he forgets his original key. He never provided the key to his wife. She retrieved the key from the claimant's car. The employer did not provide any evidence to show there is a written policy, which prohibits making a spare key."

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.


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:

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 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 

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."

The burden of proof in establishing misconduct rests solely on the employer. In the instant case, the employer has failed to meet this burden. The credible evidence and testimony presented at this hearing shows that the claimant was discharged by the employer for allegedly making a spare key and giving it to his wife. The employer did not provide any evidence at this hearing to show there was a written policy, which prohibited the claimant from making a spare key. The only evidence the employer presented at the hearing to show that the claimant provided this spare key to his wife was of a hearsay nature. The claimant, who testified under oath at this hearing, denied the allegation and asserted that his wife retrieved the spare key from the glove compartment of his car. I cannot find that the employer has provided any evidence to show that the claimant violated any written policy or that his actions rise to the level of misconduct as defined in the above Section of the Act. Since there is no evidence of any proven misconduct on the part of the claimant, he cannot be disqualified from benefits under the above Section of the Act."

The facts are uncontradicted that the claimant was entrusted with a key to the Control Room. The record shows that the claimant had the key duplicated and kept this spare key in the glove compartment of his vehicle. It is also uncontradicted that the Director of Security entered the Control Room and observed the claimant's wife present. She was advised to leave and warned that the next time this event occurs he would be terminated.

In this case the duplicating of a key to be used as a spare key, without more, is not an act that rises to the level of misconduct as defined by Turner. There was no written policy for such a prohibition.

The only evidence that the employer presented on the record that the wife was given this duplicate spare key was provided by the security officer, which he received from another security officer, which was hearsay. The evidence presented by the claimant was a denial of the allegation. He alleged that his wife retrieved the key from the compartment of his vehicle.

The fact finder after hearing the testimony of the witnesses, makes a determination as to the credibility of the witnesses and the weight to be given to such evidence presented. This Court cannot substitute its judgment for that of the agency on the weight of the evidence or the credibility of the witnesses.

The burden of proving misconduct rests upon the employer. Based upon the findings of fact and conclusions reached by the hearing officer on the evidence presented and the weight and credibility, the Board of Review could come to the above conclusion that the claimant was discharged but not for proven misconduct in connection with his work.

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.

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.