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

DOMENICK DeCANDO

V.  :    A.A. 04-95

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 Domenick DeCando, 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, Domenick DeCando was not entitled to receive relocation allowances.

            The travel of the case is as follows.  The claimant was employed for approximately six years by the employer.  His last date of work was March 8, 2003.  The claimant applied for Relocation Allowances under the Trade Act of 1974, as amended, Trade Adjustment Assistance for Workers.

On January 2, 2004 a representative for the Director determined that the claimant was not entitled to relocation allowances under the provisions of Section 617.41(6) of the Trade Act.  On February 11, 2004 the claimant filed an appeal.

A hearing was held before a Referee on March 8, 2004, at which time the claimant testified telephonically.  A representative for the Department of Labor and Training appeared and provided testimony and argument.  On March 15, 2004 the Referee affirmed the decision of the Director denying Relocation Allowances.  On March 25, 2004 the claimant filed an appeal with the Board of Review.

A hearing was held before the Chairman of the Board of Review on April 21, 2004.

The Board determined that the Referee’s decision was a proper adjudication of the facts, and upheld the Referee's decision.  Thereafter, Domenick DeCando 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 not entitled to allowances under Section 20 C.P.R. 617.42(1) was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

            The Board of Review made the following findings of fact:

“The claimant was employed as a head colorist.  The claimant had worked in the textile business for over 25 years.  He became unemployed when the company closed.  His salary was approximately $70,000 to $78,000 annually.  The claimant attempted to find work as a colorist or other similar work in the textile industry.  He looked for work in Rhode Island, New England area, and other areas in the Southern states, including the state of South Carolina.  The claimant also searched for work outside the textile industry.  The claimant was unsuccessful in his efforts.

During his work search the claimant was in receipt of Employment Security benefits and Extended Employment Security benefits.  The claimant received and did accept a customer service manager position with a large retailer in South Carolina.  This position pays approximately $10.50 an hour.”

      The Board of Review made the following conclusions:

“The issue in this appeal, as set forth in the Referee’s decision, is whether the claimant is entitled to a Relocation Allowance under Section 20 CFR 617.42(6).

            This latter section contains the requirement that the claimant secure suitable employment, as defined in 20 CFR Section 617.3(kk)(1).  This Section refers us to State law, which, in this case, are Sections 28-44-20(b) and 28-44-62(8) of the Rhode Island Employment Security Act.  Therefore, the issue turns on whether the claimant has secured suitable work or employment under the aforementioned state statute.

The claimant has not obtained or secured ‘suitable work’ or employment as that term is defined in Section 28-44-62 (8).

‘Suitable work’ means, with respect to any individual, any work which is within that individual’s capabilities; provided:

(i) That the gross average weekly remuneration payable for the work must exceed the sum of the individual’s weekly benefit amount as determined under subsection (g) of this section plus the amount, if any of supplemental unemployment benefits 26 U.S.C. 50 (C) (17) (D) payable to that individual for that week.

The facts established that the claimant accepted employment for less compensation than he received in Employment Security benefits.  Under Section 28-44-20(b) of the Rhode Island Employment Security Act, we have long held that suitable work is work at a pay scale commensurate with one’s past position.  Rhode Island Temps, Inc. v. Department of Labor & Training, 749 A.2d 1121 (R.I. 2000).  Accordingly, if the claimant were receiving Employment Security benefits and a job paying $10.50 per hour were available; [sic] the claimant’s refusal of such a position would not cause him to lose his Employment Security benefits.  Conversely, in this case, if the claimant accepts a lower paying position, he cannot derive a benefit (relocation allowances).  Absent other factors (training, etc.), a substantially lower paying job, as in this case, is not suitable employment.”

            A review of the record demonstrates that the facts are undisputed.  It is a question of law as to what “suitable work” is and what definition the Rhode Island statutes provide.

            This Court, in its review, agrees with the legal reasoning of the Board of Review.

            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).