STATE OF RHODE ISLAND SIXTH DIVISION

PROVIDENCE, SC. DISTRICT COURT

MARC H. ROUSSEAU :

v. : A.A. # 00-120

BOARD OF REVIEW, DEPARTMENT OF LABOR AND TRAINING
and
PROVIDENCE AUTO BODY

RESPONDENT'S MEMORANDUM OF LAW
I. Standard of Review
The review of a decision of the Board by this Court is controlled by G.L. 1956 § 42-35-15(g), a section of Rhode Island's Administrative Procedures Act, which provides for review of a contested agency decision:

(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;
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
When reviewing a decision of an agency, the District Court may not substitute its judgment for that of the agency board on issues of fact, unless its findings are clearly erroneous. Guarino v. Department of Social Welfare, 122 R.I., 583,410 A.2d 425 (1980); ? v. Department of Employment and Training Board of Review, 637 A.2d 360, 366 (R.I. 1994) (citing DePetrillo v. Department of Employment Security, 623 A.2d 31, 34 (R.I. 1993); Whitelaw v. Board of Review, Department of Employment Security, 95 R.I. 154, 156, 185, A.2d 104, 105 (1962)). Findings of fact by an agency board "are, in the absence of fraud, conclusive upon this court if in the record there is any competent legal evidence from which those findings could properly be made". Mercantum Farm, 572, A.2d at 288 (citing Leviton, 120 R.I. at 287, 387, A.2d at 1036-37). Legally competent evidence is "marked by the presence of 'some' or 'any' evidence supporting the agency's findings". State v. Rhode Island State Labor Relations Board, 694 A.2d 24, 28 (R.I. 1997) (citing Environmental Scientific Corp. v. Durfee, 621 A.2d 200, 208 (RI 1993).
Section 28-44-54 of the Rhode Island Employment Security Act entitled:

Scope of judicial review - Additional evidence - Precedence of proceedings provides that "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 is supported substantial evidence regardless of statutory or common law rules, shall be conclusive".
II. THE EVIDENCE WHICH SUPPORTS THE REFEREE'S\BOARD OF REVIEW DECISION
After a hearing and a review of the official record, the Referee concluded that the claimant quit his job. The question before this Court is whether there is legally competent evidence to support the Referee's decision. It is submitted that the Referee's conclusion that the claimant quit is based on the following evidence set forth in the transcript of the Referee's hearing at Page 4.

"REF: When he said, uh, take your stuff and leave, what did you think he meant?

CLMT: He said, if you don't like it grab your F…n shit and screw.

REF Could you have determined that you could have stayed there? You think you could have stayed there

CLMT Yes, yes, I could have, yes, I could have stayed there. He didn' fire me."

The above-cited sworn testimony of the claimant is competent evidence to support the Referee's conclusion.

III. CONCUSION

In view of the sworn testimony contained in the record of proceedings, the decision of the Referee/Board that the claimant quit his job was not clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. The claimant's appeal should be dismissed and the decision of the Board should be affirmed.
Respectfully submitted,
BOARD OF REVIEW,
By its attorney,

Donald G. Elbert Jr., Esq., #1499
275 Westminster Street, Third Floor
Providence, RI 02903
(401) 222-3533

CERTIFICATION

I hereby certify that a true copy of the within Memorandum was mailed to Charles Kirwan, Esq., 36 Park Place, Pawtucket, RI, 02860; and Providence Auto Body, 350 Silver Spring Street, Providence, RI, 02904, on May , 2001.