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

STATE OF RHODE ISLAND DEPARTMENT OF CORRECTIONS:

V.   :   A.A. 03-118

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 Department of Corrections of the State of Rhode Island, 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, Lisa L. Comerford was not entitled to receive employment security benefits.

            The travel of the case is as follows.  The claimant was employed approximately five years.  Her last day of work was April 10, 2003.  She filed a claim for Employment Security benefits on May 15, 2003.

In a Director’s decision dated July 3, 2003 it was determined that the claimant voluntarily quit her job without good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of this decision on July 23, 2003.

A hearing was held before a Referee on August 18, 2003, at which time the claimant, her counsel, a witness, an employer representative and the employer’s counsel were present.  On August 22, 2003, the Referee affirmed the decision of the Director denying benefits but found that the claimant had been separated from employment through termination and that the employer had proved misconduct.  On August 23, 2003, the claimant appealed the decision to the Board of Review.

A hearing was held before the full Board of Review on September 23, 2003. Claimant’s counsel and the employer’s counsel were present.  The claimant did not appear at the hearing.

The Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee's decision.  Thereafter, State of Rhode Island, Department of Corrections 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 not discharged for misconduct in connection with her job 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 findings of fact contained in the decision of the Referee are confirmed and incorporated into this decision as if fully set forth herein.”

“FINDINGS OF FACT:

The claimant was employed five years as a correctional officer through April 10, 2003.  On April 11, 2003 she called her supervisor and informed him she was placing herself on stress leave.  According to the employer’s rules and policies, an employee who is absent three consecutive days must provide either a doctor’s note or an affidavit indicating their inability to work on those days due to illness.  On April 22, 2003 a letter was mailed to the claimant requesting her to provide medical evidence for her absences.  This letter states the medical must include the doctor’s diagnosis, prognosis and treatment plan.  The letter further advised the claimant she must provide the requested medical by April 29, 2003.  She saw her doctor on April 25, 2003.  Her doctor provided her with a medical note dated April 25, 2003.  The doctor’s note contained his diagnosis, prognosis and treatment plan for the claimant, which was requested in the letter, sent to the claimant on April 22, 2003.  The claimant did not provide this medical to the employer by April 29, 2003.  On April 30, 2003 the employer sent a letter of termination to the claimant.  She was terminated due to her failure to either return to work as of April 29, 2003 or provide medical evidence to show that she could not return to work.  The claimant provided the doctor’s note dated April 25, 2003 to the employer on May 2, 2003.”

      The Board of Review made the following conclusions:

“The issue in this case is whether or not the claimant was discharged under disqualifying circumstances within the meaning of Section 28-44-18 of the Rhode Island Employment Security Act.

In order to impose a disqualification under the provisions of Section 28-44-18, there must be proof that the person who was discharged committed an act of misconduct in connection with the work.

The Referee determined that the claimant was separated from employment through termination rather than a voluntary quit.  Further, the Referee determined that the employer had proved misconduct.

The critical issue to be determined is whether the claimant’s failure to provide the employer with a physician’s note constitutes misconduct as defined under Section 28-44-18 of the Act and as defined in the Supreme Court case Turner vs. Department of Employment and Training, Board of Review, 479 A 2d 740, 741-42.

On written notice, dated April 22, 2003, from the employer of separation from employment, the claimant was required to submit medical documentation regarding her absence from work.  She was three days late in supplying the documentation.  We must decide whether the claimant’s failure to abide by the employer’s instructions was deliberate and in willful disregard of the employer’s interest.

After a review of the record we cannot conclude that the claimant’s failure to abide by the employer’s instructions was a deliberate attempt to harm the employer’s interest.  The claimant’s actions have been negligent or may have been caused by certain other factors (automobile accident), however, there is insufficient proof in the record of proceedings to establish that the claimant’s actions were undertaken with deliberate purpose to disregard the employer’s interest.  The claimant’s conduct does not rise to the level of conduct required for the denial of benefits under Turner, supra.  The claimant is eligible for benefits under Section 28-44-18 of the Act.”

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 findings of fact of the Referee are not in dispute.  A review of the facts in the instant case has provided the basis for the Board of Review to conclude that the issue to be decided was whether a failure to return medical documentation of illness, after a notice of such request was received by the employee/claimant, was misconduct.  Although this failure to return such documentation timely might be sufficient for termination from her employment, does it rise to the standard as defined in Turner?  Was this conduct such a willful and wanton disregard of the employer’s interest?

A review of the record demonstrates that the Board could come to the conclusion that the
evidence was insufficient to show a deliberate act of misconduct that harmed the employer.  In fact, in this case the Board of Review could conclude that the claimant’s conduct was harmless, that it did not in any way affect the interests of the employer.

In addition, in this case it appears that the claimant has received and exhausted all unemployment benefits.  Such receipt of all benefits would render the issue moot, since the State is a self insurer and benefits paid are not recoverable.

            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.