STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
SHEILA
DREW
V.
:
A.A. 02-48
DEPARTMENT
OF LABOR ANDTRAINING, BOARD OF REVIEW
D
E C I S I O N
DEROBBIO,
C.J.
This matter is before the Court on the complaint of Sheila Drew, filed
pursuant to Rhode Island General Laws §
42-35-15, seeking judicial review of final decisions rendered by the respondent,
Board of Review, Department of Labor and Training, which upheld the finding of
the Referee that the claimant, Sheila Drew, was not entitled to receive
employment security benefits and was declared overpaid and at fault for the
overpayment of benefits received.
In this appeal, the Court will consider three individual decisions
rendered by the Board of Review.
The travel of the case is as follows.
The claimant was employed for one and one-half years.
Her last day of work was September 1, 2001.
She filed for Employment Security benefits on September 4, 2001.
In a Director’s decision dated January 7, 2002 it was determined that
the claimant voluntarily left her job without good cause within the meaning of
Section 28-44-17 of the Rhode Island Employment Security Act and was denied
benefits. It was further determined
that the claimant was subject to the recovery provisions of Section 28-42-68 of
the same Act.
It
was determined that the claimant did not meet the availability requirements of
Section 28-44-12 of the Rhode Island Employment Security Act.
Further,
it was determined that the claimant refused an offer of suitable work without
good cause under the provisions of Section 28-44-20 of the Rhode Island
Employment Security Act.
The
claimant filed a timely appeal. A
hearing on the appeal was held on January 30, 2002, at which time the claimant
and two employer representatives appeared and testified.
The claimant was represented by legal counsel.
The Referee held the claimant was not entitled to receive unemployment
security benefits, based on the determination that claimant voluntarily left her
employment without good cause; did not meet the availability requirements;
refused an offer of suitable employment; and was thus disqualified pursuant to
Rhode Island General Laws Sections 28-44-17, 28-44-12 and 28-44-20.
Thereafter, a timely appeal was filed and the matter was heard by the
Board of Review. The Board
determined that the Referee’s decisions were proper adjudications of the
facts, and upheld the Referee’s decisions.
Thereafter, Sheila Drew 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 decisions were proper adjudications of the facts and were
supported by reliable, probative, and substantial evidence in the record and
whether or not they were clearly erroneous.
The Court will review the issues dealing with disqualification, voluntary
leaving of her employment without good cause, her availability for employment,
and the refusal of offer of suitable employment.
The Board of Review adopted the following findings of fact of the
Referee:
“The
claimant was employed for one and one-half years as a registered nurse, per diem
employee. Prior to that date the
claimant had been laid off due to lack of work by her primary employer,
Lifespan. On September 1, 2001 the
claimant last worked as a per diem employee for Women & Infants Hospital,
this employer. As a per diem
employee the claimant was required to call in and maintain contact with her
employer concerning the availability of work with her employer.
All per diem employees were required to call in on a daily basis.
Following September 1, 2001, the claimant did not maintain contact with
her employer because she decided to seek other full-time employment with an
employer who would provide her with benefits.
The claimant made no attempt following September 1, 2001 to contact this
employer to indicate her availability and that she would be available for more
hours, including full-time employment. She
made no attempt to contact the employer directly to inquire if a full-time
position was available to suit her needs. By
failing to contact her employer, she provided it no opportunity to provide her
with more available hours. As a
result of her decision not to continue in the employment of this employer, she
filed a claim for benefits on September 4, 2001.
When
filing her claim for benefits on September 4, 2001 the claimant neglected to
provide information to the Department concerning her per diem employer and that
she left the employment of that per diem employer because she wished to seek
other full-time employment with benefits. She
provided no opportunity for the Department to consider the issue.
As a result of her failure to provide the Department with the exact
circumstances of her situation, she was in receipt of waiting period credit for
the week ending September 8, 2001 and benefits for the weeks ending September
15, 2001 through December 1, 2001 in the total amount of $4,980.00.”
“Following
the claimant’s last day of work, September 1, 2001, the claimant received an
offer of suitable work as a registered nurse on December 16, 2001, upon the same
terms and conditions that she had been working in the past.
The claimant refused the offer. The
reason the claimant refused the offer was that she believed that she was being
investigated concerning her claim and thought it was wise not to discuss
anything further with her former employer.”
The Board of Review adopted the following conclusions of the Referee:
“The
first 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.
In
order to show good cause for leaving one’s employment an individual must
either show the job was unsuitable or that she was placed in a situation which
left her no reasonable alternative but to leave that employment. Based on the credible testimony presented at the hearing, I
find that the claimant has failed to establish that her job as a per diem
employee was unsuitable, or that she had no reasonable alternative but to leave
that position. She made no attempt
to remain in continuous contact with her employer in order to work all the hours
that might have been available to her. She
made no inquiry directly to that employer as to whether or not that employer
could have provided her with full-time work or benefits.
She concluded that it did not and she did not wish to continue working on
a per diem basis. Further testimony indicated that during the period before and
after her last day of work she had been caring for the medical needs of certain
relatives. Under the circumstances
of this case I find that the claimant voluntarily left her employment without
good cause within the meaning of Section 28-44-17 of the Rhode Island Employment
Security Act and is, therefore, not entitled to benefits.
A
further “. . . issue in this case is whether or not the claimant is subject to
disqualification under the provisions of Section 28-44-20 of the Rhode Island
Employment Security Act.
Section
28-44-20 reads as follows:
’28-44-20.
Refusal of suitable work. – (a)
If an otherwise eligible individual fails, without good cause, either to apply
for suitable work when notified by the employment office, or to accept suitable
work when offered him or her, he or she shall thereby become ineligible for
waiting period credit or benefits for the week in which that failure occurred
and until he or she establishes to the satisfaction of the director that he or
she has, subsequent to that failure, 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 for performing services of
employment for one or more employer subject to chapters 42 -- 44 of this
title.’
Based
on the findings of fact and the credible testimony presented at the hearing, I
find that the claimant was called regarding an offer of suitable work on
December 10, 2001, which employment was working as a registered nurse but,
however, summarily refused the offer prior to getting the particulars of the
offer because she believed she was being investigated concerning her claim and
did not wish to have any further discussions with this employer.
Based on those findings and this conclusion, it is determined that the
claimant has failed to establish good cause for refusing an offer of work on
December 10, 2001 and, therefore, must be denied benefits under the above
Section of the 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, which provides:
28-44-17.
Voluntary leaving without good cause.
--
On and after July 2, 1978, an individual who leaves work voluntarily
without good cause shall be ineligible for waiting period credit or benefits
until he establishes to the satisfaction of the director that he has subsequent
to that leaving had at least four weeks of work, and in each of those four weeks
has had earnings of at least twenty (20) times the minimum hourly wage as
defined in chapter 42 of this title; . . .
For purposes of this section, voluntarily leaving work with good cause
shall include sexual harassment against members of either sex.
(Emphasis added.)
The approach to be taken in defining “good cause” was stated in 1964 in Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597-98 (1964). The court noted that a liberal reading of good cause would be adopted:
To
view the statutory language as requiring an employee to establish that he
terminated his employment under compulsion is to make any voluntary termination
thereof work a forfeiture of his eligibility under the act.
This, in our opinion, amounts to reading into the statute a provision
that the legislature did not contemplate at the time of its enactment.
In
excluding from eligibility for benefit payments those who voluntarily terminate
their employment without good cause, the legislature intended in the public
interest to secure the fund from which the payments are made against depletion
by payment of benefits to the shirker, the indolent, or the malingerer.
However, the same public interest demands of this court an interpretation
sufficiently liberal to permit the benefits of the act to be made available to
employees who in good faith voluntarily leave their employment because the
conditions thereof are such that continued exposure thereto would cause or
aggravate nervous reactions or otherwise produce psychological trauma.
The
court, as stated above, rejected the notion that the termination must be
“under compulsion” or that the reason therefor must be of a “compelling
nature.”
The Court reviewed the entire record.
The record demonstrates that the claimant worked as a full-time employee
for Lifespan for sixteen years, and was laid off on August 31, 2001.
The record also demonstrates that the claimant performed occasional per
diem work for Women & Infant’s Hospital on a sporadic basis when the
claimant had sufficient time to work. Her
employment at Lifespan required her to work between sixty and seventy hours
weekly, earning $84,000 per year, along with all benefits, including medical,
dental and retirement. Her
part-time employment with Women & Infants rendered her approximately $1,500
annually. She was employed with
Women & Infants for one and one-half (1 ½) years.
Her history of employment showed that she was not required to call in for
work on a daily basis; that she would call at times, and Women & Infants
Hospital would call at other times. It
should further be noted that she performed patient care at Women & Infants
Hospital, and held an administrative post with Lifespan.
The record also shows that the claimant was seeking comparable employment
with medical benefits. The record
is clear that claimant did not call Women & Infants Hospital after September
1, 2001. Women & Infants
Hospital called the claimant on December 6, 2001, and again on December 10,
2001, offering her employment.
The record is clear and uncontradicted that the claimant was laid off
from an $84,000 a year job with medical, dental, retirement and other fringe
benefits; this being good cause for leaving.
The record is also uncontradicted that she did not seek employment with
her part-time employment that rendered approximately $1,500 annually.
The record is clear that the claimant responded to the Department of
Labor and Training Tele-Serve system, indicating availability for full-time
employment.
Further, claimant did refuse an offer of suitable work offered by Women
& Infants Hospital on a call on December 6, and again on December 10, 2001.
From
a review of the record, the claimant’s efforts to make an adequate job search
could be determined to be a failure to make a real job search, and she did
refuse an offer of suitable work. The Act requires the claimant to make an active and
independent search. There is
substantial, reliable and probative evidence on the record to support the
findings and conclusions that the claimant failed in this endeavor.
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 the issue of availability and registration for work
pursuant to Section 28-44-12, and refusal of an offer of suitable work pursuant
to Section 28-44-20.
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 on the issues of availability for work and refusal of an offer of
suitable work 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).
A majority of the Board of Review adopted the following conclusions of
the Referee:
“The
second issue in this case is whether or not the claimant is overpaid Employment
Security Benefits and subject to recovery under the provisions of Section
28-42-68 of the Rhode Island Employment Security Act.
28-42-68.
Recovery of erroneously paid benefits. --
(a) Any individual who, by reason of a mistake or misrepresentation made by
himself, herself, or another, has received any sum as benefits under chapters 42
-- 44, of this title, in any week in which any condition for the receipt of the
benefits imposed by those chapters was not fulfilled by him or her, or with
respect to any week in which he or she was disqualified from receiving those
benefits, shall in the discretion of the director be liable to have that sum
deducted from any future benefits payable to him or her under those chapters, or
shall be liable to repay to the director for the employment security fund a sum
equal to the amount so received, plus, if the benefits were received as a result
of misrepresentation or fraud by the recipient, interest thereon at the rate set
forth in subsection 28-43-15. That
sum shall be collectible in the manner provided in subsection 28-43-18 for the
collection of past due contributions. All
interest received hereunder shall be credited to the unemployment security
interest fund created by subsection 28-42-65.
(b)
There shall be no recovery of payments from any person who, in the
judgment of the director, is without fault on his or her part and where, in the
judgment of the director, that recovery would defeat the purpose of chapters 42
-- 44 of this title.
The
credible testimony presented in this case indicates that the claimant, in filing
her claim on September 4, 2001, failed to indicate to the Department that she
had left her per diem employment and thereby prevented the Department from
considering that issue. As a result
of the claimant’s failure to disclose her exact circumstances to the
Department when filing her claim, she was in receipt of waiting period credit
for the week ending September 8, 2001 and benefits totaling $4,980.00 for the
weeks ending September 15, 2001 through December 1, 2001.
As a result of the claimant’s actions, she is determined to be overpaid
and at fault for the overpayment of those benefits and it would not defeat the
purpose for which the Employment Security Act was designed to require the
claimant to make restitution of those funds.
Based on these conclusions, I find that the claimant is required to make
repayment of those benefits as provided under Section 28-42-68 of the Rhode
Island Employment Security Act.”
The Court, in reviewing the record, finds that Lifespan, who was the
employer of the claimant, sent a letter to the Department of Labor and Training
(which is attached to this Decision) that the payment of all benefits for the
period of September 1, 2001 through January 27, 2002 be chargeable to
Lifespan’s account.
The Department’s memorandum of law filed with this Court on August 21,
2002, indicates that Lifespan is a noncontributory employer; that is, that
Lifespan does not contribute to the Employment Security Insurance Fund, and
reimburses the fund and is charged for the total benefits paid.
This Court agrees that there is no provision in the Act which allows an
employer to decide whether its employee is to be granted benefits.
Under the Act, the Department of Labor and Training is vested with the
jurisdiction to decide the issue of benefits.
In this case, the agreement of repayment of the entire amount by Lifespan
uses the Department of Labor and Training as a conduit for such repayment of
funds. The claimant was laid off
from a full-time job at an annual salary of $84,000 and did not seek employment
from a part-time employer where she earned only $1,500 annually.
The Department had knowledge of her disclosure of the existence of
occasional employment with Women & Infants Hospital.
A refusal of an offer of full-time employment did not occur until
December 10, 2002.
On the issue of whether or not the claimant is overpaid Employment
Security benefits and subject to recovery pursuant to Section 28-42-68, this
Court finds that the repayment of benefits would defeat the purposes of the Act.
Upon careful review of the evidence on the issue of overpayment, this
Court finds that the decision of the Board was “clearly erroneous in view of
the reliable, probative and substantial evidence on the whole record,” and
that said decision was “arbitrary and capricious and characterized by abuse of
discretion and clearly unwarranted exercise of discretion.”
Rhode Island general Laws §
42-35-15(g)(5)(6).
Accordingly, the decision of the Board of Review is affirmed in part and
reversed on the issue of overpayment.