STATE OF RHODE
ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION
BROOKE
C. HOLLINS :
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V. : A.A. 05-27
:
:
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 Brooke C. Hollins, 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, Brooke C. Hollins was
not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant filed for Employment Security
benefits on November 4, 2004. In a decision dated November 23, 2004, the Director
determined that the claimant failed to meet the availability requirements under
the provisions of Section 28-44-12 of the Rhode Island Employment Security Act.
The claimant filed a timely appeal of the decision on November 27, 2004. A telephonic
hearing on the appeal was held on December 21, 2004, at which time the claimant
testified.
The Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant failed to meet the requirement
of availability under Section 28-44-12 and was thus disqualified pursuant to Rhode
Island General Laws § 28-44-12.
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, Brooke C. Hollins
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 failed to
meet the availability requirements under Section 28-44-12 of the Employment Security
Act 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:
"I find by preponderance of credible testimony and evidence, the following
findings of fact:
The claimant is a junior at the Community College of Rhode Island. The claimant
worked two part-time jobs, the first at Waterfront Fitness two or three times
a week from 5 - 9 p.m. and the second at the Newport County Convention and Visitors
Bureau Friday through Sunday. The claimant continues to work the weekend job at
the Newport County Convention and Visitors Bureau.
The claimant's classes are primarily Monday through Thursday from 9 a.m. though
6 p.m. The claimant uses public transportation to return to Aquidneck Island.
That commute takes approximately 1 hour and 10 minutes. The claimant is searching
for night employment after 7 p.m. The claimant's work experience includes hospitality
and retail work as well as her customer service experience. The claimant applied
at one restaurant the first week in November, several jewelry retailers on the
island during mid-November and at two supermarkets during that same period. Work
has been available for the claimant but she has been unable to be available for
the work. The claimant is not able to change her class schedule. The claimant
has not been in contact with NetworkRI."
The Board of Review adopted the following conclusions of the Referee:
"The issue in this case is whether or not the claimant is subject to disqualification
under the provisions of Section 28-44-12 of the Rhode Island Employment Security
Act.
Section 28-44-12 reads as follows:
'28-44-12. Availability and registration for work. - (a) An individual is not
eligible for benefits for any week of his or her partial or total unemployment
unless during that week he or she is physically able to work and available for
work. To prove availability for work, every individual partially or totally unemployed
registers for work and:
(1) Files a claim for benefits within the time limits and with the frequency and
in such manner, in person or in writing, as the director may prescribe;
(2) Responds whenever called for work through the employment office; and
(3) Makes an active, independent search for suitable work. (b) If an unemployed
individual has been determined to be likely to exhaust regular benefits and to
need reemployment services pursuant to a profiling system established by the director,
the individual shall be eligible to receive benefits with respect to any week
only if the individual participates in reemployment services, such as job search
assistance services, unless the director determines that:
(1) The individual has completed those services; or
(2) There is justifiable cause for the individual's failure to participate in
those services.(c) No individual shall be eligible for any benefits for any week
in which he or she fails, without good cause, to comply with the requirements
as set forth above.'In the instant case, the claimant has a full schedule between
classes, commute, and her part-time work. It is clear that other work is available
for the claimant that she is not available for. It is also noted that the claimant's
work search has been limited and not fully documented.
Therefore, I find and determine that the claimant fails to meets [sic] the availability
requirements under the above Section of the Law."
The Court reviewed the entire record and adopts the findings of fact, conclusions
of law and decision of the Board of Review. The Court finds that there is evidence
to show that the claimant has a full schedule and part-time jobs. It is clear
that there is other work available to claimant, but claimant is not available
for such other work, being restricted by her existing schedule.
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.