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

Jessica Laquerre :

v. : A.A. No. 05-86:

Department of Labor & Training, Board of Review :

DECISION

Quirk, J. This matter is before this Court on the complaint of Jessica Laquerre (hereinafter "Claimant") filed pursuant to R.I.G.L. § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor & Training, (hereinafter "the Board") which upheld the finding of the Referee that complainant was not entitled to receive employment security benefits.

FACTS & TRAVEL

The travel of the case is as follows:
The claimant last worked on January 7, 2005. The claimant filed her new claim for Employment Security benefits on January 26, 2005. In a decision dated March 15, 2005, the Director determined that the claimant was discharged under disqualifying circumstances as provided for under Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of this decision. A hearing on this appeal was held on April 15, 2005, at which the claimant appeared and provided testimony. The claimant was represented by an attorney at this hearing. Two employer representatives appeared at the hearing and provided testimony. (Decision of Referee at 1.)

The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant was disqualified pursuant to R.I.G.L. § 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.
The Board of Review adopted the following findings of fact of the Referee:
The claimant had been working for a service providing organization last on January 7, 2005. The claimant would make home visits, performing certain functions providing daily needs and other therapy. This employer terminated the claimant once it was discovered that the claimant had falsified a signature on her timesheet. As part of the paperwork which should accompany all documentation to the resident's house, the claimant is to carry a timesheet. This is a log showing the hours worked and also the days worked. Once the claimant completes her daily and weekly assignment she is to have this reviewed by the parent or guardian of the resident to which she provides services and they have to sign off to validate that the claimant was there for the period of time as indicated on the time sheet. While the claimant was aware of this, she had never received these signatures and during the last occasion, contacted this parent and asked if it was OK to indicate approval by placing the parents (sic) initials on the timesheet. The parent agreed on this occasion. While this was a procedure, it was discovered under direct testimony that the claimant for approximately one year that this procedure was into effect had never received the signature or initials of a parent and had signed for the parent on her timesheets. The claimant felt that on the occasion when she did receive approval, she felt this was in a sense a general approval for the claimant to proceed as stated. Decision of Referee at 1.

The Board of Review adopted the following conclusions of the Referee:
In all cases of discharge, the burden of proof to show misconduct in connection with the work on the part of the claimant rests solely with the employer. In the instant case, the claimant was terminated for timesheet violations as stated. The testimony presented by both parties was credible but conflicting. I do find that the established timesheet procedure was to have the claimant receive a sign off by a parent or guardian of the individual she provided services, on the timesheet verifying her hours. The claimant did not follow this procedure for approximately one year. I do find that while occasionally due to the crush of business, time constraints, it may be okay to ask for approval to place the initials of the parent on a timesheet but this cannot be accepted as a regular and established alternative to the established procedure. I find that the employer has demonstrated the claimant's actions were a willful violation of the procedures that was in place and as such constitute misconduct rising to a level as defined above. Therefore, the claimant cannot be allowed benefits in this issue. Decision of Referee at 2.

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 R.I.G.L. § 28-44-52.
APPLICABLE LAW
This case involves the application and interpretation of the following provision of the Rhode Island Employment Security Act, which specifically touches on disqualifying circumstances; R.I.G.L. § 28-44-18 provides:
28-44-18. Discharge for misconduct. --- An individual who has been discharged for proved misconduct connected with his or her work shall 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. 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. 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" is 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 that is fair and reasonable to both the employer and the employed worker.

In the case of Turner v. Department of Employment and Training, Board of Review, 479 A.2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a definition of the term, "misconduct," in which they quoted from Boynton Cab Co. v. Newbeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1941):
'Misconduct' … 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.

The employer bears the burden of proving through a preponderance of evidence that the claimant's action, in connection with her work activities, constitutes misconduct.
STANDARD OF REVIEW
The standard of review is provided by R.I.G.L. § 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 R.I.G.L. § 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." R.I.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).

DISCUSSION

The Board determined that claimant was discharged under disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The issue before this Court is whether that decision was a proper adjudication of the facts and is supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.
The claimant was employed as a behavior therapist for five years and last worked on January 7, 2005. (Tr. at 6.) Through testimony, the employer stated the claimant was terminated due to her failure to have a parent sign her time sheet, verifying the actual time she provided services in behalf of the employer to a child client. (Tr. at 18 -19.) This was a crucial step in the payroll process which lead to claimant receiving compensation. Claimant acknowledged at the hearing that she was informed of this requirement by her employer as set forth in a "memo." (Tr. at 35) and that she understood if she didn't have the parents' signature she would not get paid. (Id.)
This "memo' represented a change in procedure, the parents' signature previously not being required. When claimant became aware of the new requirement, she called a parent to obtain the signature and was told by the parent to insert the initials "AB." (Id.) This is not disputed. From that point forward for over a period of at least one year and possibly in excess of four, claimant inserted this parent's initials each and every week instead of having the parent sign her own initials. This was in contravention of the employer's expressed policy of utilizing a procedure the purpose of which was to provide independent verification of the hours worked.
Claimant testified that she did not believe there was anything wrong with following this course of action. (Tr. at 39.) She should have. She should have because for several reasons. First, signing another person's signature or initials is inherently and obviously wrong if the recipient of the signed document is unaware of the falsification and relies on the authenticity of the signature or initials. Second, even if the parent authorized claimant to insert her initials on one occasion, this did not serve as a blanket authorization for claimant to repeat the process indefinitely, especially without the express permission of the employer. The entire scheme nullified the exact purpose for which the employer put the policy into effect. Finally, claimant inferentially acknowledged that she did understand that the practice of inserting the parent's initials on the time sheet was not proper. In responding to a question of the referee, Claimant stated the parent told her "…that it was okay. That she would - you know - if there was any problem, she would say that she signed them …." (Tr. at 44.) The necessity for such a falsehood would not exist if claimant truly believed the actions she was taking to receive her weekly pay were proper.
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." R.I.G.L. § 42-35-15(g)(5)(6).
Accordingly, the decision of the Board is hereby affirmed.