STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

GEORGE L. MITCHELL :

V. : A.A. 02-94

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 George L. Mitchell, 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, George L. Mitchell was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant last worked on December 7, 2001. He filed a claim for Employment Security benefits on May 16, 2002. In a Director's decision dated June 26, 2002 it was determined that the claimant failed to meet the availability requirements of Section 28-44-12 of the Rhode Island Employment Security Act. The claimant filed a timely appeal. A hearing on the appeal was held on July 18, 2002 at which time the claimant appeared and testified. The claimant was represented by legal counsel.
The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant failed to meet the requirement of availability and was thus disqualified pursuant to Rhode Island General Laws § 28-44-12.
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, George L. Mitchell 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 subject to disqualification pursuant to Section 28-44-12 of the Rhode Island Employment Security Act was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.
The Board of Review adopted the following findings of fact of the Referee:
"Since the filing of his claim for benefits the claimant has been able and available for full-time work and his duties as a primary care giver for his elderly mother have not affected his availability because he is assisted by his wife. The claimant however, has failed to demonstrate that he has been conducting an adequate search for suitable employment as he as [sic] limited his inquiry to one application as a security officer at a local gambling casino."

The Board of Review adopted the following conclusions of the Referee:

"The issue in this case is whether or not the claimant is subject to disqualification under the provisions of Section 28- 44-12 of the Rhode Island Employment Security Act.

Section 28-44-12 reads as follows:

'28-44-12. Availability and registration for work. - (a) An individual is not eligible for benefits for any week of his or her partial or total unemployment unless during that week he or she is physically able to work and available for work. To prove availability for work, every individual partially or totally unemployed registers for work and:

(1) Files a claim for benefits within the time limits and with the frequency and in such manner, in person or in writing, as the director may prescribe;

(2) Responds whenever called for work through the employment office; and

(3) Makes an active, independent search for suitable work.

(b) If an unemployed individual has been determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the director, the individual shall be eligible to receive benefits with respect to any week only if the individual participates in reemployment services, such as job search assistance services, unless the director determines that:
(1) The individual has completed those services; or

(2) There is justifiable cause for the individual's failure to participate in those services.

(c) No individual shall be eligible for any benefits for any week in which he or she fails, without good cause, to comply with the requirements as set forth above.'

In order to be eligible for Employment Security benefits an individual must establish that he is able and available for full-time work and substantially attached to the labor market. The claimant must also demonstrate that he has been conducting an active search for suitable work. Based on the credible testimony presented by the claimant, I find that although he is substantially attached to the labor market, he has not been conducting a diligent active search for suitable work during the period in which he seeks benefits. Since the claimant has failed to demonstrate that he has been conducting an adequate work search, I find that he fails to meet the availability requirements of the above Section of the Act."

The Board of Review adopted the following decision of the Referee:

"The decision of the Director is affirmed. The claimant fails to meet the availability requirements of Section 28-44-12 of the Rhode Island Employment Security Act. He is denied benefits from the week ending May 18, 2002 and for an indefinite number of weeks thereafter until he meets the requirements of the law.

Claimant is advised that determination for availability and work search is ongoing; claimant may re-file in any week that he/she has met the availability and work search requirements."

The Court reviewed the entire record of the proceedings below and finds that there is evidence that he was available for full-time employment.
The record shows that the claimant testified (Transcript Pages 7 and 8).
"Q. How many - how many inquiries were you making, on an average, for work, for full-time work, at the time you filed your claim; subsequent?
A. Um, that's basically the only one I could, uh, find that was -
Q. So, the only effort you made exactly was an application you placed with Lincoln Downs as a security officer?
A. Yes.
Q. Did you limit your availability when you filed that application?
A. No.
Q. So, you didn't actively pursue any other applications after that? That's what you're telling me?
A. I didn't find any, uh, suitable as far as type of work that I'm proficient at."

A further review of the record reveals that the claimant made only one application for employment at Lincoln Downs, that claimant testified that he was checking classifieds.
A review of the record demonstrates that there is sufficient evidence that the Board could conclude that claimant failed to meet the requirements of Section 28-44-12 of the Rhode Island Employment Security Act.
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.