STATE
OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
JOSEPH
LANGTON
V.
A.A. 02-07
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 Joseph Langton, 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, Joseph Langton was not entitled to
receive employment security benefits.
The travel of the case is as follows.
The claimant’s last day of employment was September 7, 2001.
He filed a claim for benefits on September 21, 2001.
On November 16, 2001 the Director determined that the claimant was
discharged under disqualifying circumstances as set forth under Section 28-44-18
of the Rhode Island Employment Security Act.
On November 28, 2001 the claimant filed a timely appeal of the decision.
A
hearing was held before a Referee on December 13, 2001 at which time the
claimant, his legal counsel and an employer representative (who elected to
present testimony and argument telephonically) participated.
On December 18, 2001 the Referee determined that the claimant had been
discharged under disqualifying circumstances and Employment Security benefits
were denied. On December 19, 2001
the claimant filed an appeal to the Board of Review.
A hearing was held before the full Board of Review on January 9, 2002.
The claimant and his counsel were present.
The employer was not present. The
Board determined that the Referee’s decision was a proper adjudication of the
facts, and upheld the Referee's decision. Thereafter, Joseph Langton 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 his 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
made the following findings of fact:
“The
findings of fact contained in the decision of Referee are affirmed and
incorporated into this decision as if fully set forth herein; provided, however,
the Board makes the following additional findings, which if in conflict with the
Referee’s findings shall control.
In
late May the claimant was schedule [sic] to have surgery performed.
The employer granted the claimant a medical leave of absence and the
claimant was away from work on medical leave from approximately May 29 to
September 7, 2001.
During
this period the employer took no disciplinary action.
When the claimant returned to work from his medical leave of absence, the
employer held a hearing on the employer’s charge that the claimant misused the
employer’s time. As a result of
the hearing before the employer, the claimant was suspended and later separated
by employer in October."
The following are the findings of fact of the Referee:
“The
claimant had worked for Electric Boat a period of six years.
During that period of employment, the claimant had a less than
satisfactory employment record and was issued various other unrelated warnings.
The incident resulting in the claimant’s termination occurred during
the time span from February to May 2001. In
February the claimant was utilizing the company computer and spending time on
the Internet. He was given a
warning by his superior. Despite
being given the warning, the claimant continued to utilize the Internet on
company time. The situation was
discovered approximately the middle of May 2001.
The claimant was confronted on the matter and did acknowledge spending
time on the computer. The employer
researched the computer logs and found in a ten-day time span, the claimant was
on each and every one of those days for one hour on the Internet. Before the disciplinary procedure could be completed, the
claimant went on a leave of absence. At
the hearing, the claimant alleges that the use of the Internet was a compulsive
situation, that he had no control and that it was a result of his depression.
No competent medical evidence has been presented in support of that
allegation. After the claimant had returned from his leave of absence,
the employer resumed the investigation and decided to terminate the claimant
based on the fact that he had received a prior warning on that matter and
disregarded that warning.”
The majority of the Board of Review made the following
conclusions:
“In
order to impose a disqualification under the provisions of Section 28-44-18,
there must be proof that the person who was discharged committed an act of
misconduct in connection with the work.
As
the Referee noted in his decision, when an employee is terminated, the burden of
proof to establish misconduct is on the employer.
The employer must prove that the claimant’s actions or conduct were
deliberate and in willful disregard of the employer’s interest.
We
conclude that there is sufficient evidence of misconduct to support the
Referee’s conclusion that the claimant’s actions constitute misconduct.
The claimant had been warned previously that the use of the employer’s
computer on the Internet was prohibited. Nevertheless,
the claimant continued to use the Internet on the employer’s time.
The Referee concluded that the claimant was aware of the prohibition
against using the Internet, but that the claimant disregarded the policy and
used the Internet. The Referee
correctly concluded that the claimant’s personal use of the Internet was
deliberate and willful and that, therefore, constituted misconduct.”
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. vs. Neubeck, 237 Wis. 249, 259-60, 296 N.W.
636, 640 (1940):
'[M]isconduct'
. . . is limited to conduct evincing such willful 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 record demonstrates that the claimant had received a
warning regarding the personal use of the employer’s computer, spending the
employer’s time on the Internet; and despite the warning, the claimant
continued to spend time on the Internet. During
the course of the testimony before the Referee, the claimant admitted such
unauthorized use:
“Q.
Why were you going on the Net? Were
you going on there for personal business as -- as the employer has alleged?
A.
Uh, yes, I did. Uh, I mean
we use the Net for different things, but what he -- what my employer is talking
about was going into E-Bay.
Q.
Why were you going onto E-Bay?
A.
Uh, it was like an escape. I
-- I don’t know. I was just like
addicted to them; to E-Bay. I -- I
like model trains and I -- I was escaping depression, I guess, according to my
doctor. I mean normally I -- I
liked my job. I -- I wouldn’t do
anything to jeopardize. It’s like
I couldn’t help myself. It was
like an addiction.”
The claimant further testified on pages 33 and 34 of Referee’s
transcript:
“Q.
Well, how much time would you say that you were spending on E-Bay per --
let’s say, per day?
A.
I -- I don’t know, ‘cuz you -- you -- you get in there.
Yeah, I don’t have the numbers. You
know, they have the numbers at Electric Boat.
Q.
Were you going in there every day after the warning?
A.
Not every day, no, no.
Q.
Were you going in there once a week?
A.
Uh, maybe once or twice a week, yeah.
Q.
Okay, Now, did you know, when you were going in there once or twice a week, that
that wasn’t something that your employer wanted you to do?
A.
Well, yeah, he -- they had told me that, yes.
Q.
So, why did you keep going in there then?
A.
I just couldn’t help myself. I
just did it. I -- it’s like an
escape.”
There is evidence on the record that is clear and uncontradicted that the
claimant received a warning and continued the unauthorized use of the Internet.
The claimant argues that the unauthorized use was a compulsive situation,
that he had no control over his actions and was as a result of depression.
A search of the record does not support this contention.
There was no competent medical evidence presented to the Board of Review. The act of using the computer takes an intentional,
deliberate action on the part of the user.
The act of such unlawful use was intentional and deliberate.
The claimant argues the misconduct at issue must be simultaneous with or
very close in time to the termination. In
this case, the record demonstrates that the claimant continued to use the
Internet after a verbal warning in late April, 2001.
On May 22nd the employer confronted the claimant of the
unauthorized use. There was in fact
a delay from May 22, 2001 through September 7, 2001 when the claimant was
permitted to be out on sick leave. On
his return on September 7, 2001, the claimant was suspended and terminated on
October 10, 2001.
The record is clear that the actions of the employer did not prejudice
the claimant. Any delay in action,
while the claimant was out on sick leave, monetarily benefited him.
The conduct of the claimant in this case rises to the level of misconduct
as defined by Turner v. Department of Employment Security.
The unauthorized use of the Internet is conduct that evinces a willful
and wanton disregard of the employer’s best interests.
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.