STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
JOHN
F. DURR
V. : A.A. 04-33
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 John F. Durr, 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,
John F. Durr was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant was employed for approximately
five years and seven months by the employer. The claimant's last day of work
was October 10, 2003. The claimant filed for Employment Security benefits on
October 20, 2003.
On November 24, 2003 the Director determined that the claimant was separated
from his employment under non-disqualifying circumstances, as provided for under
Section 28-44-18 of the Rhode Island Employment Security Act. Employment Security
benefits were granted. The employer filed an appeal out of time.
A hearing was held before a Referee on January 26, 2004. An employer representative
and the employer's agent participated in the hearing before the Referee. The
claimant was not present. On January 27, 2004 the Referee allowed the late appeal
and reversed the Director's decision. Benefits were denied. The Referee concluded
that the claimant was terminated for reasons of misconduct, being late after
receiving a written warning. On February 3, 2004 the claimant appealed to the
Board of Review.
A de novo hearing was held before the full Board of Review on March 9, 2004.
The employer's agent and the claimant were present. An employer's witness, the
store manager, testified by telephone.
The Board determined that the Referee's decision was a proper adjudication of
the facts, and upheld the Referee's decision. Thereafter, John F. Durr 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 employment 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 made the following findings of fact:
"The claimant was employed as a sales manager. On September 4, 2003 the
claimant received a written warning for tardiness and recording time irregularities.
The claimant acknowledged that he read and understood the warning.
On September 25, 2003, the claimant was approximately 15 minutes late to work.
The claimant's report time was 6:00 am and the claimant arrived approximately
6:15 am. The employer discovered and confirmed the claimant's tardiness on or
about October 10, 2003, and the claimant was terminated."
A majority of 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.
Section 28-44-18 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.
The testimony and documentary evidence before [sic] Board established that the
claimant had been warned about his tardiness and was aware of the consequences
if he was to be late again. Less than 30 days after the warning the claimant,
who was a manager, was late again. The claimant offered no explanation other
than the traffic was heavy and this caused him to be late. We conclude that
the claimant's tardiness was deliberate and intentional, in view of the prior
warnings and incidents of tardiness. The claimant's repeated tardiness, over
a period of time, rose to the level as to constitute misconduct. The employer
has sustained its burden of proving misconduct and the claimant is disqualified
from receiving Employment Security benefits."
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.
A review of the record shows that the claimant received a written warning indicating
seven specific dates of tardiness. The warning indicated that if he was late
again he would be terminated. The record also indicates that there is evidence
that claimant was late from five minutes to 45 minutes, this being determined
from the records of the alarm company. There is evidence that the claimant filed
time cards indicating his work day started at 6:00 a.m. on each of the days.
The claimant argues that he was late on the dates testified to, but indicated
that he traveled 75 miles to work, and sometimes traffic became heavy.
A review of the record demonstrates that the Board of Review could conclude
that there was sufficient evidence that they believed that rises to the level
of misconduct as defined by Turner v. The Department of Employment Security.
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.