STATE OF RHODE
ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION
GERMAN VILLA
V. :
A.A. 05-106 : : DEPARTMENT OF LABOR AND : TRAINING, BOARD OF REVIEW :
DECISION
GORMAN, J. In this pro se appeal from a decision of the Department of Labor and Training, Board of Review, the petitioner seeks a reversal of a ruling which found that he voluntarily left his job which under Rhode Island General Laws §28-44-17, made him ineligible for unemployment benefits.
Plaintiff was employed as a loan officer for about three months by a mortgage broker. His duties involved following up on leads and arranging mortgage loans. When Mr. Villa joined this firm, he apparently brought some loan applicants with him, and worked on those matters for a period of time. At a later date, the claimant spent less time in the office, and his supervisor pointedly explained that loan officers were expected to come into the office every day and the hours he required them to work. The supervisor further testified that the plaintiff was advised of the working hours (10:00 a.m. to 7:00 p.m.) before claimant was hired.
Mr. Villa stopped coming in to work sometime shortly before April 27, and his supervisor called him numerous times, leaving a message “15 or 16” times, according to the testimony offered at the referee’s hearing. The supervisor was able to talk to plaintiff on one occasion and was told that the employee had poison ivy and would be out for a day or two. During the time he was absent from the office, one of the other employees saw plaintiff at a school where they both had children. Mr. Villa acknowledged that his office telephoned him, but said: “I did not want to answer the phone at that point.” He also stated that he never saw a doctor during his illness.
According to the supervisor, plaintiff came into the office one day during the time his employer was trying to reach him. Mr. Villa said that he would now be coming in. The following day he failed to appear. The supervisor called him and got no response. At this point, although the precise timing is difficult to glean from the record, the employer sent a memorandum addressed “TO ALL LOAN OFFICERS,” specifically naming plaintiff and five other individuals. The memo notified the loan officers that a “mandatory” fifteen minute meeting would be held on Monday, May 9, at 9:30 a.m., and advised that “IF YOU ARE NOT AT THE MEETING ON MONDAY MORNING YOU WILL BE TERMINATED.”
Plaintiff was given a copy of the memorandum by a secretary, but did not attend the meeting. At 11:00 a.m. the supervisor called Mr. Villa and told him: “I guess you’re not coming in no more, so I’m gonna pack your stuff, and I put it in a box, and I asked him to come pick it up.”
On May 12, plaintiff filed a claim for unemployment benefits, and his request was denied by the Director of the Department of Labor and Training who found claimant ineligible based on § 28-44-18 (proved misconduct). Mr. Villa appealed and, after a hearing, a referee disagreed with the director’s determination and found that plaintiff left his employment voluntarily without good cause barring claimant from receiving benefits under § 28-44-17. In a subsequent appeal the Board of Review of the Department of Labor and Training affirmed the referee’s decision, and a petition seeking judicial review was filed in this court, which has jurisdiction pursuant to § 42-35-15.
When reviewing action taken by administrative tribunals under § 42-35-15, the court is limited in several respects; it cannot substitute its judgment for that of the agency concerning the weight to be given evidence on questions of fact, and it must affirm the decision unless, looking at the record as a whole, it is not supported by reliable, probative, and substantial evidence. § 42-35-15(g).
In this case, there is extensive evidence in the record showing that plaintiff, an employee of only three months, repeatedly ignored the employer’s efforts to contact him, made no attempt to be present at the workplace during the hours prescribed by his supervisor; and was absent for approximately thirteen days without notifying the employer. The final event which led to his separation from the company involved his failure to attend a “mandatory meeting,” even though the notice said that if a person failed to appear, he “would be terminated.”
While the referee and the board relied on different provisions of the employment security statute, both found that because of his conduct, the plaintiff was not eligible for benefits. After reviewing the record in its entirety, the court believes either legal theory has a substantial factual basis, but a stronger case can be made for disqualification because of proved misconduct. The uncontested facts reflect that the plaintiff: 1) failed to show up at the office on a regular basis after being told of the hours mortgage brokers were expected to be there, 2) did not come to the office for several days in succession – although there was some dispute about the number of days, 3) repeatedly failed to return phone calls from his supervisor, and 4) did not attend a staff meeting after being given written notice that that attendance was mandatory and that if he failed to appear, it would lead to termination. This type of flagrant disregard for the directives of an employer and intentional refusal to respond to a supervisor’s efforts to contact an employee, come within the definition of misconduct identified by our supreme court in Turner v. Department of Employment Security, Board of Review, 479 A.2d 740, 741-742 (R.I. 1984).
This court’s preference for relying on § 28-44-18 to find Mr. Villa ineligible for unemployment benefits should not be construed as a rejection of the reasoning followed by the referee and board. It is understandable that an employee who rejects extensive efforts by a supervisor to get him to come to the office, stays out of work for a week or more with no apparent justification, and who neither calls in nor appears for a mandatory meeting could be found to have voluntarily left his job.