STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
SEAN
MITCHELL
V.
: A.A. 04-12
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 Sean 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, Sean Mitchell was not entitled to
receive employment security benefits.
The travel of the case is as follows.
The claimant last worked on November 8, 2003.
He filed for Employment Security benefits on November 10, 2003.
On November 20, 2003 the Director determined that the claimant had been
discharged under disqualifying circumstances and that benefits would be denied
him under the provisions of Section 28-44-18 of the Rhode Island Employment
Security Act. The claimant filed a
timely appeal on December 2, 2003. A
hearing was set down on this appeal on December 30, 2003, at which the claimant
appeared and testified. One witness
appeared and testified on behalf of the employer.
The
Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant was discharged for misconduct
in connection with his employment and was thus 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, Sean 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 discharged for misconduct in connection with his work 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:
“The
claimant had been employed with this employer for approximately two years and
ten months. The claimant was a
member of a union. The union
contract allowed for five late days within a sixty-day period.
The claimant was late approximately forty times during the course of his
employment. Further during the
course of his employment, the claimant violated the union rule by having more
than five late days within a sixty-day period.
The violation of the union rule occurred three times during the course of
his employment. The claimant was
given a written warning twice and was finally terminated on November 8, 2003 for
the excessive tardiness."
The Board of Review adopted the following conclusions of the Referee:
“The
issue in this case is whether or not the claimant was discharged under
disqualifying circumstances within the meaning of Section 28-44-18 of the Rhode
Island Employment Security Act.
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.
Section
28-44-18 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.
I
find from the credible evidence before me that the employer has met the burden
of proving misconduct within the meaning of the above Section of the Act.
The claimant’s continued tardiness in violation of the union contract
and following written warnings amounts to a willful disregard of his
employer’s interest. Benefits
must be denied him.”
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. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W.
636, 640 (1940):
'[M]isconduct'
. . . is limited to conduct evincing such wilful 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 admits he was late
at least forty (40) times, however, he did not believe them to be serious
offenses. The record also indicates
that there is evidence to demonstrate that he violated both company and union
policy concerning his tardiness.
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.