STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

JAMES A. HILL, JR. :


V. : A.A. 00-54


DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

QUIRK, J. This matter is before the Court on the complaint of James A. Hill, Jr., 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, James A. Hill, Jr. was not entitled to receive employment security benefits.
The travel of the case is as follows.
"The claimant was employed for 33 years. His last day of work was February 18, 2000. He filed a claim for Employment Security benefits on February 21, 2000.

On March 2, 2000 the Director determined that the claimant voluntarily left his job without good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act. On March 13, 2000 the claimant filed an appeal of this decision.

A hearing was held before a Referee on March 30, 2000. Only the claimant was present. On March 31, 2000 the Referee affirmed the decision of the Director and denied benefits. On April 5, 2000 the claimant appealed to the Board of Review.

A hearing was held before the full Board of Review on April 25, 2000. The claimant and his counsel were present and provided testimony and argument." (Decision of Board of Review - May 3, 2000)

The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant voluntarily left his job without good cause and was thus disqualified pursuant to Rhode Island General Laws § 28-44-17.
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, the 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 a proper adjudication of the facts and that the claimant voluntarily left his job 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 adopted the following findings of fact of the Referee:
"The claimant was employed for 33 years as an electrician. In January 2000 the claimant and other employees were offered an early retirement program in an effort to downsize the company's operation. The claimant voluntarily accepted the offer, which included severance pay, medical insurance coverage, and full payment of unused, paid absence hours. The claimant was under no threat of termination if he did not accept the early retirement program. The decision for early retirement was completely voluntary. He could have remained in the workforce had he chosen to do so."

Additionally, the Board of Review made the following findings of fact in response to testimony presented at the hearing before the Board on April 25, 2000:
"In an effort to downsize the employer's operations, the employer offered an early retirement program to approximately 400 employees. The employer required that 25 workers accept the early retirement program."

The Board of Review adopted the following conclusions of the Referee while noting the Board's additional 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.

In order to show good cause for voluntarily leaving one's employment, an individual must either prove the work unsuitable or show that he was placed in a situation that left him no reasonable alternative but to leave that employment. Based on the credible testimony presented by the claimant at the hearing, neither of these situations was present. The claimant voluntarily accepted an early retirement program offered by his employer to eligible employees in an effort to downsize its operation. The claimant was not forced to take the retirement and could have remained at work. Leaving one's employment to accept a voluntary early retirement program when one could have remained at his work is not good cause for leaving that employment under the provisions of the above Act. Accordingly, I find that under the circumstances, the claimant voluntarily left his job without good cause and is not entitled to Employment Security benefits under the provisions of Section 28-44-17 of the Rhode Island Employment Security Act."

The following are the additional conclusions made by the Board of Review:
"The claimant's actions demonstrated a voluntary choice to leave his employment. The claimant had the option of continuing employment. In this case the risk of layoff was remote and does not, based on the record of proceedings and official file, make the claimant's job unsuitable." See Costa vs. Board of Review, AA 94-60 (Dist. Ct. 10/18/94) (DeRobbio, C.J.).

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 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, however, 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."
The Court, in a review of the record, finds that there is insufficient evidence to establish that the work itself had become unsuitable or that the claimant was faced with a situation that left him no reasonable alternative but to terminate his employment.
The record is clear the employer informed the employees of the company that there would be a future reduction in the work force. This reduction would include approximately fifty (50) employees worldwide, with approximately twenty-five (25) employees to be from the Providence location which employed four hundred (400) persons. Later the employees were notified that, in order to minimize the impact of this reduction, the company was offering an early retirement plan to employees age sixty (60) and older and this plan needed to be accepted by twenty-five (25) persons.
The record disclosed the claimant voluntarily resigned after accepting the early retirement offer. The alternative to this acceptance was to be placed on a lay-off list with the approximate four hundred (400) other employees. Therefore, the claimant would be at risk for a future lay-off. The claimant testified that at the time he elected to accept the early retirement offer, thirty-one (31) co-workers had already signed up for early retirement although claimant was unaware of this fact. Finally, the claimant indicated he was not aware of any actual lay-offs.
It is clear the claimant was speculating at the time he accepted early retirement that he would be one of the twenty-five (25) persons laid off out of a possible four hundred (400). He suggested that by virtue of the early retirement offer the company was targeting those over sixty (60) for lay-off, without acknowledging such targeting would in contravention of the laws against age discrimination.
The circumstances at the time the claimant voluntarily left his employment do not indicate his fears about job security were well founded. The claimant was facing only the possibility of a future lay-off, a possibility that was actually remote.
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.