STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT SIXTH DIVISION

CYNTHIA A. HOWLAND :

V. : A.A. 02-14

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 Cynthia A. Howland, 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, Cynthia A. Howland was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant had been employed as an administrative assistant a period of four months. Her last day of work was August 13, 2001. She was discharged from this job. The Director determined that the claimant had been discharged under disqualifying circumstances, within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal. A hearing on the appeal was scheduled. A Notice of Hearing was sent to all interested parties. The hearing was held on December 31, 2001. The claimant appeared and testified. Employer representative testified by telephone.
The Referee held the claimant, Cynthia A. Howland, 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, Cynthia A. Howland 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 had worked for this employer a period of four months through August 13, 2001, at which time she was discharged. On August 9 the employer became aware that the claimant had issued an e-mail letter to his [sic] superiors. The employer notified the claimant that since the contents were work related, and being her immediate superior, that she provide him with a copy of the letter. The claimant refused indicating that it was not his [sic] concern as the letter was not addressed to him. The employer made the claimant aware that her continued refusal would constitute insubordination and would place her job in jeopardy. Nevertheless, the claimant did continue to refuse on the subsequent days, resulting in the termination on August 13, 2001."

A majority of the Board of Review adopted the following conclusions of the Referee:
"The issue involved is whether or not the claimant was discharged under disqualifying circumstances within the meaning of Section 28-44-18 of the Rhode Island Employment Security Act.

An individual who is discharged for proved misconduct in connection with the work must be held to have been discharged under disqualifying circumstances within the meaning of Section 28-44-18.

Section 28-44-18 provides, in part, as follows:

For the purposes of this section, misconduct shall be
defined as deliberate conduct in wilful 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 evidence presented establishes that the claimant was in fact insubordinate when she was given a direct order and the order was a legitimate work order. The claimant's actions do constitute misconduct and benefits must be denied on this issue."

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 reveals that the facts in this matter are basically uncontradicted. The employer testified as follows:
"She had, Miss Howland, had generated me an email from her home computer and emailed to her computer here at work that was directed towards Executive Committee Officers and other members of the Yacht Club. I was informed by a member that I had received, that they had received an email from her and I had asked her about the email, acknowledged that she wrote it and I asked her to get a copy out of her computer here at work. We had a problem with American [sic] Online and could not access the computer at that time, I instructed her to contact America Online to correct the problem and also asked her to bring a copy of the email when she came to work the next day, this was all on August 9th. She agreed at that time to bring a copy of the email. I left the club for a while, when I came back, I found a note in my mailbox stating that she did not, from Miss Howland, stating that she did not feel I had any right to this letter because she was not directing it towards me. When, let's see, the next day, August 10th, um, I'm sorry, when she arrived at work I asked her for a copy of the email and she again reiterated what she had said in her note, that she felt that it was not for addressed to me, therefore, it was, she was under no obligation to provide it to me. Um, I asked her for a copy of the email, she said again, reiterated the same reasons, she said it was not for my eyes, it was a personal communication, I stated that that was incorrect that it had been, that the email had been forwarded from a Club computer which she was using while she was on the club payroll, and using the email address list of the Club, um, and that I considered her refusal to produce a copy of the email insubordination and asked her if she would be changing her mind and she said, no and at that point I terminated her."

The claimant testified:
"REF Miss Howland did you tell him that it wasn't for his eyes?
CLT Yes I did.

REF Why

CLT I told him, cause I didn't address it to me, I wrote it for the Commodore, the people who I dealt with on a daily basis. I did say it was not for Barry, it was for people around Barry just to let them know. I told him I had erased all the copies and that he had to get a copy from the Commodore or Vice Commodore because I didn't have one. And, I'm not at all vindictive or spiteful, I just think I am entitled to unemployment for being fired for such a silly reason, as not having a letter, because it was not club property, I wrote the letter on my own time, I did use the email addresses from their Conanicut Yacht Club, but it was not on the clock, it was before I was on the clock.

Did you use the employer's computer?

To forward the emails yes I did."

The facts are uncontradicted that the claimant refused to produce a copy of the E-mail. The record is clear and uncontradicted that she stated it was not for her immediate superior's eyes, and that she produced the E-mail at home on her own computer, forwarding the same to the employer's computer. The claimant also testified that she did not have a copy, and that copies may be available from the Commodore or Vice Commodore of the Yacht Club.
The E-mail in question related to her immediate superior. The claimant in this case, as the dissenting opinion stated, had reasons to discuss that superior with persons higher up the company ladder.
This Court believes that the conduct of the claimant does not rise to the level of misconduct as defined by Turner v. The Department of Employment Security.
The employer's agent testified further that it was not the Club's intent to do anything to deny benefits for Miss Howland.
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. The claimant is entitled to benefits.