STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

CHRISTINE HARRINGTON :

V. : A.A. 99-101

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW

D E C I S I O N

HIGGINS, J. This matter is before the Court on the complaint of Christine Harrington, 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, Christine Harrington was entitled to receive employment security benefits.
The claimant was employed by this employer for approximately three years. Her last day of work was February 4, 1999. The claimant filed a claim for benefits on July 8, 1999.
On July 27, 1999 the Director determined that the claimant refused an offer of suitable employment and, therefore, she was disqualified from receiving Employment Security benefits under Section 28-44-20 of the Rhode Island Employment Security Act. On August 3, 1999 the claimant filed a timely appeal.
A hearing was held before a Referee on August 19, 1999. The claimant and a representative of the employer, the payroll manager, appeared and provided testimony and argument. On August 24, 1999 the Referee reversed the Director concluding that the claimant, an administrative employee, had been offered a job as a factory worker. On August 26, 1999 the employer appealed the Referee's decision to the Board of Review.
The Referee held the claimant was entitled to receive unemployment security benefits, based on the determination that claimant's refusal is considered to be with good cause under the law as she has shown the job offer to be unsuitable and was thus qualified pursuant to Rhode Island General Laws § 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 decision was not a proper adjudication of the facts, and reversed the Referee's decision. Thereafter, claimant 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's refusal was not considered to be with good cause under the law as she has not shown the job offer to be unsuitable 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:
"The claimant had been employed by this employer in an administrative position performing office duties, including customer service, data entry and computer data maintenance.

The claimant went out on maternity leave. Prior to her return from maternity leave, on occasions the claimant would visit the employer's work place and converse with co-workers regarding issues related to the work place. The claimant contacted the employer and discussed the terms and conditions of her return to work with the employer's vice-president.

The claimant was advised that because of employer reorganization, the claimant's job had been eliminated. The employer offered the claimant an administrative position with the same rate of pay, same hours per week. The claimant refused the position. The claimant was cleared to return to work on June 15, 1999.



3. CONCLUSIONS:

The issue in this case is whether the claimant refused an offer of suitable employment with good cause, as set forth under Section 28-44-20 of the Rhode Island Employment Security Act.

Unlike the hearing before the Referee, the employer's vice-president was in attendance. It was the vice-president who discussed the claimant's return and who offered her an administrative job. The claimant's testimony and the employer's testimony are in conflict.

The claimant testified before the Referee that:

(1). "At no point was I told this was an administrative
position." (See P 22 of the Referee's transcript), and

(2) "She offered me . . . she said it was a factory job.
She said I would be taking over Lorraine's position."
(See P 19 ).

Before the Board, the claimant testified that she had several discussions with the employer regarding her options including working at home with a computer and part-time. The job offer occurred on or about June 18, 1999. According to the claimant, the employer indicated that the claimant would be taking over Lorraine's job, which included some data entry. At page 19 of the Referee's transcript, the claimant testified that she really did not know what Lorraine's job was after the restructuring. Before the Board the claimant again testified that she was unaware of what Lorraine's job was after restructuring, despite having made several visits to the work place and discussing the reorganization with co-workers. Based on the June 18, 1999 conversation with the employer, the claimant concluded that she would be performing factory work.

The employer testified that she had several discussions regarding the claimant's return to work and that the employer did offer the claimant an administrative position. The claimant would be performing some of the functions which had been performed by Lorraine after restructuring. Those functions consisted of data-entry as it related to inventory control.

The credible testimony established that the employer and claimant had several discussions regarding the claimant's return to work. The discussions included computer related activities at the claimant's home. The employer made no representations which would lead a reasonable person to conclude that the claimant was returning to a factory type position. However, the claimant maintains that as a result of her conversations with the employer's vice-president, she believed that the job offer was that of a factory worker. I conclude there is no reasonable basis for the claimant to conclude that she would work in another than administrative positions.

The employer offered the claimant an administrative position. Under Section 28-44-20 of the Act, the offer constitutes an offer of suitable work."

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."
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.