STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

JAY FLANAGAN APPRAISAL 

V. : A.A. 02-25

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 Jay Flanagan Appraisal, 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, Doreen Toombs was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant had been employed for approximately four months. The claimant’s last day of work was November 19, 2001. She filed a claim for Employment Security benefits on November 19, 2001.

On December 10, 2001 the Director 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. As a result, the claimant was disqualified from receiving Employment Security benefits. On December 13, 2001 the claimant filed a timely appeal of the decision.

A hearing was held before a Referee on January 3, 2002 at which time the claimant and the employer’s president were present and provided testimony and argument. On January 10, 2002 the Referee affirmed the Director’s findings and concluded that the claimant quit her job without good cause because the claimant failed to discuss her concerns with the employer prior to immediately leaving the job after the incident. On January 18, 2002 the claimant filed an appeal to the Board of Review.

A hearing was held before the Chairman of the Board of Review on February 5, 2002. The claimant and her attorney were present. The employer’s president and a witness for the claimant testified telephonically.

The Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee’s decision. Thereafter, Jay Flanagan Appraisal 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 did not voluntarily leave her work without good cause 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:

"On the claimant’s last day of work, the claimant received a telephone call from her employer. During the course of the telephone call, the employer used inappropriate language towards the claimant. During the employment relationship, the employer had, on occasions, used what the claimant believed to be inappropriate language. When the claimant was hired, the office manager advised her that the employer was intense and would likely use inappropriate language on occasions."

The Board of Review made the following conclusions:

"The 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.

Unlike the hearing before the Referee, the Board had the opportunity to examine the testimony of the claimant’s supervisor, the office manager. The record testimony established that the employer was passionate and intense about the manner in which his appraisal business was conducted. On repeated occasions the employer would use inappropriate language in addressing his employees.

The employer had his office in his home. His employee(s) worked out of the company office. On Friday, November 16, 2001, an incident occurred with an appraisal, which caused a client to call the employer. On the following Monday, November 19, 2001, the employer called the claimant and used inappropriate language. Although the claimant had dealt with the employer’s practice of using inappropriate language on other occasions, the language and circumstances surrounding the discussion on November 19, 2001 caused the claimant’s job to become unsuitable. The claimant has established good cause for leaving her employment."

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. - An individual who leaves work voluntarily without good cause shall be ineligible for waiting period credit or benefits for the week in which the voluntary quit occurred and until he or she establishes to the satisfaction of the director that he or she has subsequent to that leaving 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 of this title for performing services in employment for one or more employers subject to chapters 42 - 44 of this title. For the purposes of this section, voluntarily leaving work with good cause shall include sexual harassment against members of either sex. For the purposes of this section, voluntarily leaving work without good cause shall include voluntarily leaving work with an employer to accompany, join or follow his or her spouse in a new locality in connection with the retirement of his or her spouse, or failure by a temporary employee to contact the temporary help agency upon completion of the most recent work assignment to seek additional work unless good cause is shown for said failure; provided, that the temporary help agency gave written notice to the individual that the individual is required to contact the temporary help agency at the completion of the most recent work assignment to seek additional work.

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."

It should be noted that the employer filed the present complaint in his name, Jay G. Flanagan, pro se.

However, the employer is a corporation and chartered in accordance with the laws of Rhode Island. All contributions to the fund were paid by the corporation of which Jay G. Flanagan is the president. Although the action might fail based upon the failure of an indispensable and necessary party to bring this action, the Court will decide this matter on the merits.

A review of the record indicates that there is sufficient and substantial, reliable and probative evidence to demonstrate that the conduct of the employer was inappropriate. Although there was an established pattern of inappropriate language used by the employer on other occasions, on the occasion that the claimant left her employment, her leaving was justifiable. The record demonstrates that all of the circumstances and evidence surrounding this incident could be determined to make the job unsuitable.

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.