STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
DEBORA GUERTIN
:
V. : A.A. 04-26
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 Debora Guertin, 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, Debora
Guertin was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant was employed two years by
the employer. Her last date of work was July 29, 2003. She filed a claim for
Employment Security benefits on December 1, 2003. In a Director's decision dated
December 18, 2003, the Director determined 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 December 23, 2003. A hearing on the appeal was held on January 21, 2004,
at which time the claimant and an employer representative appeared and testified.
The Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant was discharged for misconduct
in connection with her employment and was thus disqualified pursuant to Rhode
Island General Laws § 28-44-18.
Thereafter, a timely appeal was filed and the matter was heard by the Board
of Review. The Board determined that the Referee's decision was a proper adjudication
of the facts, and upheld the Referee's decision. Thereafter, Debora Guertin
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 her 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 adopted the following findings of fact of
the Referee:
"The claimant was employed two years as a packager through July 29, 2003.
She was involved in an automobile accident on her way to work on July 30, 2003.
She was treated by a doctor and advised to remain out of work from August 4,
2003 through August 6, 2003. She went to her place of employment and provided
this medical to the employer. On August 6, 2003, she was treated by another
doctor. She was advised to remain out of work from August 6, 2003 to August
22, 2003. She provided this medical to the employer. On August 5, 2003, the
employer sent the claimant a Family Medical Leave application which was to be
completed by herself and her doctor. According to the instructions which accompanied
the Family Medical Leave application, she was required to return the application
within fifteen days. The claimant completed her portion of the Family Medical
Leave and provided it to her doctor. She asked her doctor to complete it and
return it to the employer. A Family Medical Leave application was returned to
the employer but it was incomplete. On August 27, 2003, the employer sent the
claimant a letter along with the incomplete Family Medical Leave application.
This letter indicated the completed Family Medical Leave application had to
be returned by September 5, 2003 or her job protection status under the Family
Medical Leave Act was in jeopardy. The claimant's doctor completed the Family
Medical Leave application as of September 3, 2003. The claimant did not return
the Family Medical Leave application to the employer until September 17, 2003.
There is nothing in the doctor's portion of the Family Medical Leave application
to indicate the claimant could not work. The doctor advised the claimant against
performing job duties which required lifting and bending. Due to the claimant's
failure to return the required Family Medical Leave application timely and her
failure to return to the employer to request suitable work based upon her medical
condition, she was terminated by the employer."
A majority of the Board of Review adopted the following conclusions of the Referee:
"While the Director determined that the claimant left work voluntarily
without good cause within the meaning of Section 28-44-17 of the Rhode Island
Employment Security Act, I find that she did not leave voluntarily. She was
discharged.
To be determined, therefore, is whether or not she was discharged under disqualifying
circumstances under the provisions 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 burden of proof in establishing misconduct rests solely on the employer.
In the instant case, the employer has met this burden. The claimant was terminated
by the employer when she failed to return to work following a medical leave
of absence and also failed to have a completed Family Medical Leave application
returned to the employer timely. While the claimant may have been suffering
some medical conditions, her doctor indicated that the claimant could return
to work with some restrictions. The claimant made no such effort to contact
the employer to request that she be able to return to work with some reasonable
accommodation. The claimant was required to return the Family Medical Leave
Act application by September 5, 2003 and did not return the completed application
until September 17, 2003. The claimant's failure to return to work and her failure
to complete the requested Family Medical Leave application timely are actions
which are in willful and deliberate disregard of the employer's best interest
and do rise to the level of misconduct as defined in the above Section 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.
A review of the entire record demonstrates that there is evidence to support
the following:
Claimant was involved in an auto accident on July 30, 2003.
The employer requested that the claimant cause to be completed and submitted
a Family Medical Leave application to protect her employment with her employer.
The record shows that the application was to be returned to the employer fifteen
(15) days from the date it was mailed on August 5, 2003. A letter was mailed
to the claimant on August 27, 2003, stating that if the completed application
was not received by September 5, 2003, her job would be in jeopardy. The Family
Medical Leave application was completed and dated by the doctor on September
3, 2003. There is evidence that the application was returned to the employer
on September 17, 2003.
There is also evidence on the record that the claimant could return to work
with some restrictions and that claimant did not discuss any restrictive work.
The record also shows that the claimant received Temporary Disability Insurance
benefits through December 13, 2003.
There is evidence to support the conclusion that the failure to comply with
the instructions of the employer to cause the Family Medical Leave application
to be timely completed and returned to the employer, and her failure to confer
with the employer as to availability of some type of restrictive employment
rises to the level of misconduct as defined by Turner v. Department of Employment
Security and that such conduct was in willful disregard of the employer's interest.
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.