STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
MARK DASILVA :
V. : A.A. 03-114
DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :
D E C I S I O N
McLOUGHLIN, J.
This matter is before the Court on the complaint of Mark DaSilva, 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 complainant, Mark
DaSilva was not entitled to receive employment security benefits.
The travel of the case is as follows.
1. TRAVEL OF THE CASE
The claimant had been employed for Rhode Island Temps, Inc. a period of two
months. His last day of employment was July 11, 2003.
The Director determined that the claimant voluntarily left the job without good
cause under the provisions of Section 28-44-17 of the Rhode Island Employment
Security Act. The claimant filed a timely appeal.
A hearing on the appeal was scheduled. A notice of hearing was sent to all interested
parties. A hearing was held before a Referee on September 8, 2003. The claimant
appeared and testified represented by attorney. Two employer representatives
appeared and testified. Although there have been conflicting testimonies presented,
the findings of fact are based on the weight of the credible evidence presented.
On September 9, 2003 the Referee issued a decision in which he reversed the
determination of the Director. The employer appealed to the Board of Review.
A hearing was held before the full Board of Review on October 20, 2003. The
claimant appeared with counsel. Two employer representatives appeared at the
Board hearing.
2. FINDINGS OF FACT
The claimant had worked for this employer a period of two months at one assignment
at G-Tech. In June 2003 the claimant filed a complaint with the client and the
employer regarding sexual harassment by an employee of G-Tech. The matter was
under investigation.
The claimant worked through July 11, 2003 and at the completion of the workday
was notified by the employer that the client decided to discontinue the use
of the claimant's services and that the assignment was ending. The claimant
reported to the employer on July 14.
During a conversation on that date the claimant told his supervisor at R.I.
Temps that he no longer wished to work for Rhode Island Temps. He never again
contacted his employer. 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 in this case is whether or not the claimant left work voluntarily
with good cause within the meaning of Section 28-44-17 of the Rhode Island Employment
Security Act.
An individual who leaves work voluntarily must establish good cause for taking
that action or else be subject to disqualification under the provisions of Section
28-44-17.
Section 28-44-17 reads as follows:
'28-44-17 - Voluntary leaving without good cause. - An individual who leaves
work voluntarily without good cause shall be ineligible for waiting period credit
or benefits until he or she establishes to the satisfaction of the director
that he or she has subsequent to that leaving had at least eight (8) weeks of
work, and in each of those 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. For the purposes of this section, voluntary leaving
work with good cause shall include sexual harassment against members of either
sex. For the purposes of this section, voluntarily leaving work without good
cause shall include voluntarily leaving work with an employer to accompany,
join or follow his or her spouse in a new locality in connection with the retirement
of his or her spouse in a new locality in connection with the retirement of
his or her spouse, or failure by a temporary employee to contact the temporary
help agency upon completion of the most recent work assignment to seek additional
work unless good cause is shown for said failure; provided, however, that the
temporary help agency gave written notice to the individual that the individual
is required to contact the temporary help agency at the completion of the most
recent work assignment to seek additional work.'
While the claimant's assignment at GTech may have ended, the claimant was never fired by his employer, Rhode Island Temps. In fact, the claimant voluntarily left work when he told the employer that he no longer wished to work for Rhode Island Temps. The information presented by the claimant regarding the possible sexual harassment was not related to his employer, Rhode Island Temps and there was no connection made to any potential future assignment by the employer of the claimant to another position. Therefore, we conclude that he has not established that there was good cause for him to leave his position and benefits should be denied under the provisions of Section 28-44-17."
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.