STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

JOHN D. CLAYTON :

V. : A.A. 04-41

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

QUIRK, J. This matter is before the Court on the complaint of John D. Clayton, 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, John D. Clayton was not entitled to receive employment security benefits.

FACTS AND PROCEDURAL HISTORY

Claimant was employed by the Narragansett Bay Commission for twenty years. He was terminated on December 8, 2003 after being found at his work station asleep with a newspaper in his lap and his feet up on a desk. This sleep continued for a significant amount of time. (Tr. at 18-19, 26-27). This was the second time in six months he had been found sleeping while on duty. (Id. at 35).
On this particular day, he was employed as a plant laborer responsible for monitoring the operation of the incinerator. (Referee Tr. at 14). He was stationed in the control room where all monitoring devices, equipment and computers were located. (Id.) It was his job to pay close attention to temperatures and chemical readings and to make adjustments when necessary. (Id. at 15). This job was a "safety sensitive position" which if performed improperly could lead to risk of significant injury to people and property. (Id. at 15-16). Verbal and written notice had been given to claimant prior to this date regarding the employer's policy prohibiting the reading of newspapers during work hours. (Id. at 16).
Claimant does not deny he was sleeping while he was supposed to be monitoring the operation of the incinerator. (Tr. at 42). He attributes this event to the taking of medication for high blood pressure which he alleges made him sleepy. (Tr. at 43). He started treatment with a new doctor in April, 2003 who prescribed two kinds of medications in certain dosages. (Id.) Claimant alleges he never had a problem like this before taking these medications and he believes he had been given the wrong dosage of one of the medications which lead him to be "overdosed." (Id. at 44). In fact, he indicated "the lady" at the doctor's office told him he had been overdosing. (Id.)
Claimant acknowledges that the doctor who prescribed these medications had written a letter to his employer when the first sleeping incident had occurred and stated "he thought it was highly unlikely that [the medications] would cause drowsiness." (Id.) Claimant was terminated on this day and subsequently filed for Employment Security benefits on December 11, 2003.
The Director of the Department of Labor and Training, in a decision dated December 30, 2003, "determined that the claimant was discharged under disqualifying circumstances, according to the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of the decision on January 12, 2004.
A hearing on the appeal was held on February 3, 2004, at which time the claimant and four employer witnesses appeared and testified (Decision of Referee at 1) and the following findings of fact and conclusions were made:
The claimant was employed as a plant laborer by the Narragansett Bay Commission for twenty years. The claimant was working a first shift and responsible for the monitoring equipment controls. In order to maintain the safety of people, equipment, and his own personal safety, he was required to make those adjustments to the controls in order to keep the equipment functioning within the appropriate parameters. The claimant was observed asleep with a newspaper on his lap by his immediate supervisor. Two other supervisors observed the claimant from a distance. The supervisor requested additional observers since this was the second time the claimant was found asleep while on duty during 2003. The claimant was discharged.

* * *
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.

* * *

In the instant case, sufficient credible testimony and evidence has been provided to support that the claimant was found sleeping during his work hours for the second time within a six month period. The claimant had received proper warnings and discipline for his first offense. The claimant's actions may have resulted in death or injury to himself, those employees or individuals in the surrounding area as well as the major loss of equipment. Although the claimant indicates that he was sleepy due to the medication he was taking, sufficient evidence has been provided by him to support that … his medication does not cause drowsiness. The claimant was aware of his responsibilities and those safety issues involved in his duties yet never requested reassignment if in fact he felt he was suffering from some side effects or conditions that would not allow him to conduct his duties. Therefore, it is found and determined that the claimant was discharged under disqualifying circumstances.

(Id. at 1-3).

The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant was thus disqualified 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. Claimant submitted to the Board of Review a second letter from his doctor for consideration by the Board which indicated "[i]t seems that he may have been inadvertently taking the wrong medication regimen which could have contributed to his drowsiness." (Letter of Dr. Paul Brieding dated February 17, 2004). Claimant also submitted literature and packaging material from the manufacturer of the medications. Additionally, he submitted medical records from Rhode Island Hospital for a visit to the emergency room for an evaluation of high blood pressure that had been noted when he received physical therapy for a knee problem. (See documents contained in certified record.) In spite of this additional evidence, the Board determined that the Referee's decision was a proper adjudication of the facts, and upheld the Referee's decision. Thereafter, claimant 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 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 adopted the following findings of fact of the Referee indicating, "for the purposes of judicial review in accordance with Section 28-44-51, the decision of the Appeal Tribunal shall be deemed to be the decision of the Board of Review." (Decision of Board of Review).
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 substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.
Claimant does not dispute he was sleeping on the job and this was the second time in six months that he had been discovered doing so. He raised a medication problem as an excuse for the first incident and was given an opportunity to present support for this claim. A letter from his doctor failed to provide this support and, in fact, refuted the claim that the medication would cause drowsiness. Claimant offered no testimony or evidence that he took any measures to alleviate this "medication problem" at anytime after the first incident but before the second.
Claimant did submit additional medical documentary evidence to the Board of Review. The Board did not find these documents probative on the issue of whether claimant's blood pressure medication caused drowsiness.
The Board of Review also did not find the second letter submitted by claimant's doctor to be persuasive evidence that claimant's medication caused him to be sleeping on the job on December 8, 2003. An opinion of medical causation by a doctor must be held to a reasonable degree of medical certainty in order for the opinion to have evidentiary weight. Mullaney v. Goldman, 398 A.2d 1133 (R.I. 1979). The use of the words "may have", "could have", and "contributed" used by the doctor in his letter renders his opinion to be no more than speculation and irrelevant.
Regardless of what caused claimant to fall asleep at work on December 8, 2003, he alleges this act did not constitute willful misconduct pursuant to § 28-44-18. The record reveals, however, that not only was he asleep while charged with monitoring the incinerator: his feet were on the desk, his head was bobbing back, and there was a newspaper in his lap. Claimant did not just "nod off", he was asleep when his supervisor discovered him, remained asleep after the supervisor tried to arouse him by calling his name twice (Tr. at 18) and stayed asleep at least long enough for his supervisor to call two other gentlemen in management to come to the incinerator room to view claimant for a period of time. The totality of these observations lead the Board of Review to believe claimant was acting with an intentional and substantial disregard of the employee's duties and obligations to his employer.
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.