STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
KAREN
HARVEY:
V.
:
A.A. 03-75
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 Karen Harvey, 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, Karen Harvey was entitled to
receive employment security benefits.
The travel of the case is as follows.
The claimant was employed for approximately 33 months.
The claimant’s last day of work was March 13, 2003.
The claimant filed for Employment Security benefits on March 25, 2003.
On
April 4, 2003 the Director determined that the claimant was discharged under
disqualifying circumstances according to the provisions of Section 28-44-18 of
the Rhode Island Employment Security Act. On
April 7, 2003 the claimant appealed the Director’s decision.
A
hearing was held before a Referee on April 29, 2003. Only the claimant was
present. On April 30, 2003 the
Referee concluded that the preponderance of the evidence did not prove
misconduct. The claimant was
allowed benefits. On May 12, 2003
the employer filed an appeal with the Board of Review.
A
hearing was held before the full Board of Review on May 29, 2003.
The claimant, a witness for the claimant, the employer and a witness for
the employer were present.
The
Board determined that the Referee’s decision was not a proper adjudication of
the facts, and reversed the Referee's decision. Thereafter, Karen Harvey 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 was discharged under disqualifying circumstances 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 teacher. On the claimant’s last day of work the
employer had scheduled a staff meeting to discuss a number of issues including,
but not limited to, the employer’s concern that the staff was not performing
in accordance with employer expectations. The
claimant became upset as a result of the comments made at the meeting.
At the end of the meeting the claimant followed the employer into the
employer’s office. The claimant
confronted the employer in a loud voice. The
discussion became a verbal altercation and the claimant was asked to leave the
office. The claimant refused.
The employer told the claimant to leave and to hand in her keys.
The claimant refused. When
the employer told the claimant that she was calling the police, the claimant
left the office.”
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 provisions of Section 28-44-18 of the
Rhode Island Employment Security Act.
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.
Unlike
the hearing before the Referee, the employer presented testimony and argument
before the Board. The testimony is substantially similar except for the
contents of the language used between the parties.
However, except for this latter conflict, the record established that
after a staff meeting, a verbal altercation occurred between the claimant and
the employer, in the employer’s office.
The
credible testimony established that the claimant began the discussion by going
to the employer’s office. The
discussion between the parties came about after a staff meeting.
The rest of the staff departed after the meeting, with the exception of
the claimant, who vented her feelings toward the employer.
The discussion became more intense and the credible evidence is that the
claimant refused to leave the employer’s office when directed by the employer.
At the time the claimant refused to leave the office, the discussion had
progressed to a verbal altercation. The
claimant’s refusal to withdraw from the office as directed by the employer and
her inappropriate remarks were deliberate acts of insubordination. The employer
has proved misconduct, and the claimant is not eligible to receive Employment
Security benefits under Section 28-44-18 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.
The
record demonstrates that there is evidence that the claimant and the employer
had a verbal confrontation which became heated and that the claimant refused to
withdraw from the employer’s office when directed and only left when
threatened by police action. In this case, there is some evidence presented of a personal
relationship between the parties.
This
one incident appears to be an isolated incident of bad judgment.
The Court, in a review of the record, finds that this conduct does not
rise to the level of misconduct as defined by Turner v. Department of
Employment Security.
The
Court in this case, based upon the evidence, adopts the decision as stated in
the dissenting opinion of the Board of Review, which is as follows:
“I
view the facts as an isolated incident of bad judgment.
The record established that there was a difficult meeting in which the
staff, in general, was called to task. The
claimant took exception to the comments, and it is reasonable that she might
take the remarks personally. This
is the reason that caused the claimant to confront the employer.”
A review of the entire record demonstrates that there is not 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 "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was "arbitrary and capricious and characterized by abuse of discretion and clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).
Accordingly, the decision of the Board is hereby reversed.