STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
CAFÉ
INTERNATIONAL :
V. : A.A. 04-15
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 Café International,
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,
Cynthia A. Matera was entitled to receive employment security benefits.
The travel of the case is as follows. The claimant was employed for approximately
ten months as a cashier. Her last day of work was November 7, 2003. She filed
a claim for Employment Security benefits on November 12, 2003. In a Director's
decision dated November 25, 2003, it was determined the claimant was discharged
from her employment for disqualifying reasons, under the provisions of Section
28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely
appeal of that decision. A hearing on the appeal was held on December 30, 2003,
at which time the claimant and the employer both appeared and testified.
The Referee held the claimant was entitled to receive unemployment security
benefits, based on the determination that claimant was discharged, but not under
disqualifying circumstances, 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, Café International
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,
but not under disqualifying circumstances, 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 last worked as a cashier on November 7, 2003. Prior to that
date, the claimant had one written warning which she refused to sign dated October
27, 2003 which indicated that the employer was dissatisfied with her work performance.
On November 7, 2003 after reporting for work and being in attendance for approximately
one hour, the claimant requested from the employer's wife, who was also working
on the premises, permission to take a few minutes outside the establishment
for a coffee break. It was indicated to the claimant that it was ok since it
was not busy. At that point, the employer husband who had been attending to
cleaning the bathroom, came to the front of the coffee and bagel shop and observed
the claimant outside smoking. Because he was upset with the claimant's past
work performance, he took the claimant's check which was due her that day, went
out to the claimant, gave her the check and indicated that he was through with
her. The following day when the claimant approached the owner regarding the
status of her position, he reaffirmed that she was no longer working at that
establishment."
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. Based on the credible testimony,
facts and circumstances of this case, I find that the employer has failed to
meet that burden. Although the employer owner who appeared and testified indicated
that his wife did not give the claimant permission to go on a smoke break, his
wife was not presented as a witness to refute the sworn, credible testimony
of the claimant. Based on these factors, I find that the employer has failed
to meet its burden of proof by a preponderance of the evidence. I find, therefore,
that the claimant was terminated for other than disqualifying reasons and, therefore,
cannot 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 wilful 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 evidence which is contradictory.
The resolution of issues of fact are determined by the trier of facts. The credibility
of the witnesses is solely for the trier of facts. The burden of proof, in this
case of misconduct, rests upon the employer.
A review of the evidence demonstrates that the Board of Review could conclude
that the employer failed to show that the conduct of the employee/claimant rose
to the level of misconduct as defined in Turner v. 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.