STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
EDWARD
P. DAVIS :
V. : A.A. 04-14
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 Edward P. Davis, 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, Edward
P. Davis was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant was employed eleven months
by the employer. His last date of work was September 24, 2003. He filed a claim
for Employment Security benefits on November 5, 2003. In a Director's decision
dated November 21, 2003, 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 November 24, 2003. A hearing on the appeal was held on January
2, 2004, at which time the claimant appeared and testified. He was represented
by the union president. Three employer representatives appeared and provided
testimony at the hearing.
The Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant was discharged for misconduct
in connection with his work and 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. The Board determined that the Referee's decision was a proper adjudication
of the facts, and upheld the Referee's decision. Thereafter, Edward P. Davis
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
for 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.
A majority of the Board of Review adopted the following findings of fact of
the Referee:
"The claimant was employed eleven months as a custodian through September
24, 2003. On May 16, 2002, he attended a pre-disciplinary hearing. On August
29, 2002, a settlement agreement was signed by the employer and the claimant.
According to this settlement agreement, he received a written reprimand for
insubordination and inappropriate behavior towards his supervisor. He was also
advised any further incidents of this nature would result in progressive discipline
up to and including termination. On September 23, 2003, his supervisor located
the claimant in a locked area reading. His supervisor was upset because the
claimant was not performing his job duties. The claimant asked to speak with
his supervisor about the incident, but his supervisor indicated he did not have
time. The following day the supervisor was waiting for the claimant to arrive
at work in order to discuss the prior day's incident. When the claimant arrived,
his supervisor told him he wanted to speak with him. The claimant told him that
he had just gotten in to work and refused to speak to him. The claimant's workday
had already started at the time the supervisor wanted to speak with him. The
supervisor asked to speak with him two more times and again the claimant refused
to speak with him. Both the supervisor and the claimant became angry and raised
their voices at one another. At one point the claimant asked the supervisor,
'Who the f _ _ _ do you think you are?' He also bumped the supervisor with his
chest pushing him up against the file cabinets in the supervisor's office. After
this argument ended, the supervisor reported the incident to the Operations
Director. The supervisor did file a police report as a result of the claimant's
actions. The claimant was originally suspended on September 24, 2003 and was
terminated on October 2, 2003 as a result of his actions."
A majority of 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 met this burden. The claimant had previously
received a written warning for insubordination and inappropriate behavior towards
his supervisor. On September 24, 2003, the claimant was insubordinate to his
supervisor when he refused to speak with him after being requested to do so
on three separate occasions. The claimant was unable to provide any valid explanation
for his refusal to speak with the supervisor. In addition to refusing to speak
with his supervisor, he also bumped his supervisor with his chest pushing the
supervisor up against file cabinets which were located in the supervisor's office.
Since the claimant was insubordinate towards his supervisor after previously
being warned about such behavior, I find that his actions in this case do rise
to the level of misconduct as defined in the above Section of the Act. Further,
the claimant assaulted his supervisor by bumping him with his chest. This is
also an action which constitutes willful misconduct in connection with one's
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 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.
The Court reviewed the entire record. The following was in the dissenting decision:
"The employer's [sic] alleges that the claimant was discharged for assaulting
his supervisor yet the assault charge was dismissed. Therefore, there is no
proven misconduct and benefits must be granted."
The fact that the assault charge was not pursued does not affect any finding
of the Board of Review. It is not res judicata. The burden of proof and the
issues are different as it relates to the determination of misconduct in connection
with the employee's employment.
A review of the record demonstrates that the conduct of insubordination displayed
by the employee's acts and his aggressive behavior rise to the level of misconduct
as defined by Turner v. Department of Employment Security. The burden of proof
rests upon the employer. The conduct demonstrated in the record, if believed
by the Board, demonstrates misconduct.
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.