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

KATHLEEN P. McCABE :

V. : A.A. 04-104

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

McLOUGHLIN, J. This matter is before the Court on the complaint of Kathleen P. McCabe, 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, Kathleen P. McCabe was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed for twenty-two months. The claimant's last day of work was January 29, 2004. The claimant filed for Employment Security benefits on February 19, 2004. In a decision dated March 17, 2004, the Director determined that the claimant was discharged under disqualifying circumstances, according to the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal on the decision on March 19, 2004. A hearing on the appeal was held on May 19, 2004, at which time the claimant and three employer witnesses appeared and testified. An attorney represented each party. One observer attended the hearing.

The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant was 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, Kathleen P. McCabe 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 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:
"This matter came on to be heard before the Board of Review on August 26, 2004, in connection with the claimant's appeal dated June 15, 2004, from a decision of a Referee dated May 26, 2004, imposing a disqualification on the claimant under the discharge provisions of the Rhode Island Employment Security Act. The claimant, counsel for the claimant and three employer representatives appeared at the hearing.

2. FINDINGS OF FACT:

I find by a preponderance of credible testimony and evidence the following findings of fact: The claimant was employed as an administrative assistant in the office of the Rhode Island National Guard/Adjutant General. The claimant had access to employee files and was privy to confidential documents, including those documents pertaining to various legal actions. The claimant was aware and privy to documents relating to a lawsuit between two members of the National Guard. On or about January 14, 2004, the claimant met with the Adjutant General. The Adjutant General requested the claimant reconsider submitting an earlier resignation given to the employer. Her resignation was not accepted at the time. Complaints by commanders continued against the claimant regarding her failure to work within the chain of command. The claimant had been advised and directed on the proper procedure for interacting with the various commanders and base staff. Allegations regarding a sexual harassment had also been leveled at the claimant.

Following the meeting, the claimant met with an administrative aide, Audrey Agli, who she knew to be involved in a case against a National Guard Sergeant and the employer. The case involved allegations of sexual harassment. The claimant provided Ms Agli with employer documents relating to the investigation and advised Ms. Agli not to tell anyone where she got them. Following distribution of copies by Ms. Agli to her attorney, Ms. Agli, aware that the document possession was improper, advised the employer. She told the employer that she received them from the claimant. The claimant was subsequently discharged for the inappropriate distribution of employer documents.

The Board of Review carefully reviewed the evidence and testimony contained in the record together with the evidence and testimony presented at this hearing.

It was their opinion that the decision of the Referee is a proper adjudication of the facts in this case and the law applicable thereto. Accordingly, the decision of the Referee is approved and confirmed and incorporated by reference herein.

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 issue involved is whether or not the claimant was discharged from this job under disqualifying circumstances within the provisions 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 which provides, in part, as follows:

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.

In the case of Turner vs. Department of Employment and Training, Board of Review, 479 A 2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a general definition of the term, 'misconduct', as enunciated in Boynton Cab Co. vs. Newbeck, [sic] 237 Wis. 249, 296 N.W. 636 (1941):

'[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 employer's interest or 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. Id. at 259-60, 296 N.W. at 640.

In cases of termination, the employer bears the burden to prove by a preponderance of credible testimony and evidence that the claimant committed an act or acts of misconduct as defined by the law in connection with her work. It must be found and determined that the employer has met their burden.

In the instant case, following a counseling session with her employer relative to the claimant's behavior and for the purpose of requesting she reconsider her previous resignation, the claimant took action against the best interest of her employer. The claimant sought out a co-worker and plaintiff against the employer and provided copies of confidential investigatory documents. The claimant wanted the transaction to be kept secret indicating she would get in trouble for the action. The claimant is clear that her responsibilities were primarily with the Master Cooperative Agreement and she was unaware of the confidentiality and sensitivity of the documents. She states that she felt Ms. Agli was already in possession of the documents. No credible testimony has been given to support a reason to distribute the documents other than intent to do harm. If she accidentally encountered the documents she clearly had the reasonable alternative to turn them over to the proper JAG representatives or refile them in the appropriate area. Ms. Agli, also an administrative aide, was immediately aware of both the confidentiality and significance of the documents being presented to her. That awareness was both through content review and the claimant's warning."

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.