STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
MARCEL CHARPENTIER :
V. : A.A. 03-46
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 Marcel Charpentier, 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,
Marcel Charpentier was entitled to receive employment security benefits.
The travel of the case is as follows. The claimant last worked on August 31,
2001. The claimant filed his new claim for Employment Security benefits on September
24, 2002.
On January 9, 2003 the Director determined the claimant was discharged under
non-disqualifying circumstances, in accordance with Section 28-44-18 of the
Rhode Island Employment Security Act. Employment Security benefits were allowed.
The employer filed an appeal on the award of benefits on January 15, 2003.
A hearing was held before a Referee on February 4, 2003, at which time the claimant
and an employer representative were present and provided testimony. On February
12, 2003 the Referee affirmed the decision of the Director concluding that the
employer had failed to prove misconduct. On February 14, 2003 the employer appealed
to the Board of Review.
The employer's appeal was before the Board, in accordance with Section 28-44-47
of the Rhode Island Employment Security Act. This Section allows the Board to
affirm, modify, or reverse the finding or conclusions of the Referee solely
on the basis of the evidence previously submitted or upon the basis of such
additional evidence it may direct to be taken. The Board elected to decide the
appeal based on the record of proceedings forwarded by the Referee.
The Board determined that the Referee's decision was not a proper adjudication
of the facts, and reversed the Referee's decision. Thereafter, Marcel Charpentier
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 discharged
for misconduct in connection with his employment was supported by reliable,
probative, and substantial evidence in the record and whether or not it was
clearly erroneous.
A majority of the Board of Review made the following findings of fact:
"The claimant worked as a full-time truck driver both intra and interstate
delivering equipment.
On his return to work on or about July 20, 2001, after being placed on Workers
Compensation, the employer indicated that it had received a customer complaint
regarding the claimant's dress appearance, while making deliveries. The complaints
concerned the wearing of cutoff shorts occasionally no shirt, and the wearing
of sandals. The employer addressed this situation with the claimant to the point
of issuing a written warning on or about August 29, 2002. The employer, on occasions,
had seen the claimant with unlaced boots and carrying sandals.
On August 31, 2002 the employer received information from a customer that the
claimant had made a delivery wearing sandals. Based on this information, prior
warnings and the employer's observations, the claimant was terminated."
A majority of the Board of Review made the following conclusions:
"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 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 of the Act 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 employer representative was the claimant's supervisor. The record of proceedings
is replete with incidences of an ongoing issue regarding the claimant's dress
appearance between July 20, 2002 to August 31, 2002. The claimant's own testimony
is that he would work, on occasions, without a shirt. When the employer addressed
the issue, the issue next became whether it was a cut-off shirt. Cut-off shorts
then became the subject between the parties. Next the wearing of sandals and
at what time and place.
The record undisputedly established that one of the employer's customers described
the claimant's appearance as "trashed", in the claimant's presence.
The employer would call customers to make inquiry regarding the claimant's appearance
and performance with the expectation that the claimant would follow the employer's
rules. For over 30 days the employer attempted to have the claimant conform
to its dress code. The documentary evidence and testimony of the claimant's
supervisor established that the claimant was not following the employer's reasonable
dress code. There is substantial probative evidence in the record of proceedings
to establish that the claimant deliberately and intentionally violated the employer's
reasonable rules regarding appearance."
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 record demonstrates that some of the evidence considered and
weighed was hearsay. It is held that hearsay evidence is admissible and can
be considered by the hearing officer in making a determination of the issues
in the matter being heard. In this case, the hearsay evidence by itself would
not be sufficient to substantiate a decision by the administrative agency; but
taking the hearsay evidence in the totality of all the evidence presented would
be sufficient to satisfy the standard of proof required.
In this case there is evidence on the record that the employer received complaints
about the appearance of the claimant. The employer addressed such customer complaints
and issued a written warning. The record also indicates that the employer witnessed
the manner of dress, including the unlaced boots and carrying of sandals. An
identified customer, called by the employer, described the claimant's appearance
as "trashed." The record also shows that the employer had established
a dress code. There is also evidence that for a period of over thirty days the
employer attempted to cure this conduct of the claimant so that he would conform
to the employer's dress code.
In viewing the totality of the evidence presented, this conduct of the claimant
did not rise to that level of expectation that the employer is entitled to.
This conduct could be considered by the Board of Review as conduct that evinces
a willful and wanton disregard of the employer's interest. 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.