STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

JR MUSIC SUPPLY, LLC :

V. : A.A. 05-30

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 JR Music Supply, LLC, 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, Marcy S. Langstein, was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed for approximately two years as a general manager. Her last day of work was July 20, 2004. She filed a claim for Employment Security benefits on July 22, 2004.

In a Director's decision dated August 18, 2004 it was determined that the claimant voluntarily left her job without good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of that decision.

A hearing was held before a Referee on September 15, 2004. The claimant and an employer representative appeared at the hearing. On September 17, 2004 the Referee issued a decision in which he modified the determination of the Director. The claimant had not voluntarily left her job but had been terminated from her job under disqualifying provisions of Section 28-44-18 of the Act. The Referee denied benefits. The claimant appealed to the Board of Review.
A hearing was held before the full Board of Review on December 14, 2004. The claimant and an employer representative appeared and testified at the Board hearing.
The Board determined that the Referee's decision was not a proper adjudication of the facts, and reversed the Referee's decision. Thereafter, JR Music Supply, LLC 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, but not 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.

The Board of Review made the following findings of fact:
"The claimant had been employed for over two years as a general manager for this employer. Her last day of work was July 20, 2004. On that date she learned that her mother, who lived in Florida, was ill. The claimant informed her employer by email that she would have to leave early and that she would be traveling to Florida to see her mother. There were other employees at the work place. When the claimant left, she informed them as to what she was doing as well. The claimant was terminated for her actions."

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 meaning of Section 28-44-18 of the Rhode Island Employment Security Act.

An individual who is discharged for reasons of proven misconduct in connection with his work must be held to have been terminated under disqualifying circumstances under the provisions of Section 28-44-18 of the Act.

In our opinion the actions of the claimant do not amount to misconduct within the standard set under the Supreme Court's decision in Turner vs. Department of Employment and Training, Board of Review, 479 A 2d 740, 741-42 (R.I. 1984). At the very most, the claimant's actions constituted an isolated incident which was justified by emergency circumstances concerning the claimant's family."

The Appellant, JR Music Supply, LLC, appealed this decision, requesting a hearing to present facts to this Court indicating:
"I am writing you today to request an appeal of the decision of the Board of Review 20043345 BU. The owner of the company had read this decision and feels that the facts of the case were certainly misrepresented to the board. He would therefore appreciate the opportunity to present the facts more accurately. Please allow him to do so by allowing an appeal hearing. He will be in the United States in May and would very much appreciate a hearing date between May 10th and June 9th."

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 Court reviewed the entire record. The employer/appellant in this case had notice and two full hearings, with an opportunity to present evidence relative to the matter being heard.
This Court is charged with the responsibility of reviewing the record, and questions and determination of fact are within the exclusive jurisdiction of the trier of fact or the administrative agency.
This Court cannot substitute its judgment on questions of fact of the administrative agency.
The request to present additional evidence in this case is denied.
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.