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

NEIGHBORHOOD HEALTH PLAN 

V.   :   A.A. 03-138

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 Neighborhood Health Plan, 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 reversed the finding of the Referee that the claimant, Shelley W. Brown was not entitled to receive employment security benefits.

            The travel of the case is as follows.  The claimant was employed for five years as a network development specialist.  Her last day of work was December 19, 2002.

In a Director’s decision dated January 10, 2003 it was determined that the claimant voluntarily left her job without good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act.  The claimant filed a late appeal of that decision on June 25, 2003.  A Referee’s decision dated July 30, 2003 denied the claimant’s late appeal.  Following a timely appeal to the Board of Review of the Referee’s decision, the Board of Review overruled the decision of the Referee and remanded the case to the Referee for a decision on the claimant’s appeal on the issue under Section 28-44-17 of the Rhode Island Employment Security Act based on testimony and evidence presented at the Referee’s hearing on July 28, 2003.  On October 6, 2003 the Referee issued a decision in which he sustained the determination of the Director.  The claimant appealed to the Board of Review.

A hearing was held before the Chairman of the Board of Review on November 4, 2003.  The claimant appeared with legal counsel at the Board hearing.  The employer, with notice, did not appear at the Board hearing.

            The Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee’s decision.  Thereafter, Neighborhood Health Plan 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 not a proper adjudication of the facts and that the claimant did not leave her employment without good cause was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

            The Board of Review made the following finding of fact:

“Based upon the evidence presented at the Board of Review hearing, which evidence apparently was not fully presented to the Referee, I find that the claimant had been subject to sexual harassment at her place of work.”

            The Board of Review made the following conclusions:

“The issue in this case is whether or not the claimant left work voluntarily with good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act.

An individual who leaves work voluntarily must establish good cause for taking that action or else be subject to disqualification under the provisions of Section 28-44-17.

Based upon the finding of fact that the claimant was the victim of sexual harassment, I conclude that she had good cause to leave her job within the meaning of Section 28-44-17.”

            An individual who leaves work voluntarily must establish good cause for taking that action or else be subject to disqualification under the provisions of Section 28-44-17, which provides:

“28-44-17 - Voluntary leaving without good cause.  -  An individual who leaves work voluntarily without good cause shall be ineligible for waiting period credit or benefits until he or she establishes to the satisfaction of the director that he or she has subsequent to that leaving had at least eight (8) weeks of work, and in each of those 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.  For the purposes of this section, voluntary leaving work with good cause shall include sexual harassment against members of either sex.  For the purposes of this section, voluntarily leaving work without good cause shall include voluntarily leaving work with an employer to accompany, join or follow his or her spouse in a new locality in connection with the retirement of his or her spouse, or failure by a temporary employee to contact the temporary help agency upon completion of the most recent work assignment to seek additional  work unless good cause is shown for said failure; provided, however, that the temporary help agency gave written notice to the individual that the individual is required to contact the temporary help agency at the completion of the most recent work assignment to seek additional work.”

            The approach to be taken in defining “good cause” was stated in 1964 in Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201,  200 A.2d 595, 597-98 (1964).  The court noted that a liberal reading of good cause would be adopted:

To view the statutory language as requiring an employee to establish that he terminated his employment under compulsion is to make any voluntary termination thereof work a forfeiture of his eligibility under the act.  This, in our opinion, amounts to reading into the statute a provision that the legislature did not contemplate at the time of its enactment.

In excluding from eligibility for benefit payments those who voluntarily terminate their employment without good cause, the legislature intended in the public interest to secure the fund from which the payments are made against depletion by payment of benefits to the shirker, the indolent, or the malingerer.  However, the same public interest demands of this court an interpretation sufficiently liberal to permit the benefits of the act to be made available to employees who in good faith voluntarily leave their employment because the conditions thereof are such that continued exposure thereto would cause or aggravate nervous reactions or otherwise produce psychological trauma.

The court, as stated above, rejected the notion that the termination must be “under compulsion” or that the reason therefor must be of a “compelling nature.”

            A notice of a conference was mailed to each of the parties.  The conference was scheduled for January 20, 2004 at 8:30 a.m.  Appellant did not appear.

            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.