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

Donna Neri

vs A.A. 04-29

Department of Labor and Training, Board of Review

DECISION

Gonnella, J. This matter is before the Court on the complaint of Donna Neri, filed pursuant to RIGL § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Department of Labor and Training, Board of Review, upholding the findings and conclusions of the Referee that claimant was not entitled to receive employment security benefits. For the reasons set forth below, this Court affirms the Board's decision to deny benefits.

The travel of the case is as follows. The claimant worked full time as a manager at her employer's restaurant. The claimant's last day of employment was November 21, 2003. The claimant filed for Employment Security benefits on November 25, 2003. In a decision dated December 12, 2003, the Director determined the claimant 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 timely appeal of the decision on January 27, 2004, and a hearing on the appeal was held before a Referee at which time the claimant appeared and testified. The claimant was represented by her attorney during the hearing.

The Referee held that the claimant was not entitled to receive unemployment security benefits, based upon the determination that claimant left work voluntarily without good cause and was thus disqualified pursuant to Rhode Island General Laws § 28-44-17.

Thereafter, a timely appeal was filed and the matter was heard by the Board of Review. The Board, in a two to one decision, determined that the Referee's decision was a proper adjudication of the facts, and upheld the Referee's decision. Thereafter, claimant filed a complaint for judicial review in this court. 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." RIGL § 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 Board of Review adopted the following findings of fact of the Referee:
"The claimant had last worked full time as a manager at a local restaurant. The claimant's last day of work was November 21, 2003. The claimant was under investigation along with other members of the restaurant staff because of a missing bank deposit. The claimant voluntarily left her job in anticipation of a termination over this issue and because she had received a previous warning in July about the same issue. The claimant testified that the employer informed her that the issue was under investigation and it was a serious matter and that the claimant might lose her job, but a definite determination had not been made at the time she left her job."

The issue to be decided by this appeal is whether there are sufficient facts in the record to conclude that the claimant left work voluntarily and without good cause. 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. Kane v. Woman's & Infants Hospital of R.I., 592 A.2d 137 (R.I. 1991).
In a factually similar setting the Rhode Island Supreme Court declared that whether an employee leaves voluntarily and with good cause is a mixed question of law and fact. D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039 (R.I. 1986). As such, if the facts as found by the Board could lead to more than one conclusion and the Board's decision was not clearly erroneous in resolving the mixed question of law and fact, then this Court is without authority to overrule the Board's decision. Id. In D'Ambra, the employee had been similarly suspected of wrongdoing in the loss of a bank deposit and in a separate incident of wrongdoing in the loss of handbags. In both of these instances, the employee was cleared of any wrongdoing and was not under the threat of being fired but was nevertheless upset over the accusations and left his employment. In upholding the decision of the Board, that the claimant left work voluntarily and without good cause, the Court in D'Ambra held: "We cannot say that the board committed an error of law or was clearly wrong in resolving the mixed question of law and fact in concluding as it did that the employee had left his employment voluntarily without good cause." D'Ambra, supra, at. 1041.
In order to establish good cause for leaving one's job, the claimant must show that the work had become unsuitable or that she was faced with such a situation that left her no reasonable alternative but to terminate her employment. Powell v. Department Of Employment Security, Board Of Review, 477 A. 2d 93 (R.I. 1984). The burden of proof in establishing good cause rests solely on the claimant.
In the present case the claimant quit work before the investigation had been completed because she anticipated that she would be fired for the lost bank deposit since she had been once before warned about lost bank deposits and had been told that this was her final warning. The claimant argues that because she believed that her firing was inevitable, she left with good cause. In support of her position, the claimant cites to two cases in Rhode Island. Powell v. DES, Board of Review, supra and Kane v. Woman's & Infants Hospital, supra.
In Powell, the Court was faced with the question of whether the claimant's decision to resign from his job with the United Way was without good cause. In Powell, the claimant was asked to issue a press release that was factually inaccurate and misleading. Instead of risking his reputation with the media, he chose to resign, since he believed that his continued career in the field of public relations depended upon his reputation for honesty. The Rhode Island Supreme Court held that the claimant in Powell left his employment for good cause under these circumstances and was, therefore, entitled to benefits. Id. at 97.
In Kane, supra, the Court was faced with a different question. In Kane, the Court was concerned with the issue of what constitutes a "voluntary" leave from one's employment. The employee/claimant in Kane was told to take an early retirement or be fired for misconduct. The employee/claimant chose to retire. The twist in Kane is that under RIGL § 28-44-17, if an employee leaves work voluntarily and pursuant to a retirement plan, then the employee is eligible for unemployment benefits. Thus, the employee/claimant in Kane was asserting that she left work voluntarily and took an early retirement in order to make her eligible for benefits. Her employer, on the other hand, was arguing that she left work involuntarily and without good cause because she was about to be fired for misconduct, which would make her ineligible for benefits. See, RIGL § 28-44-18 (Discharge for Misconduct). The Supreme Court agreed with the employer that retiring under the threat of being fired for misconduct does not constitute a voluntary act on the part of the claimant and, therefore, the claimant left work involuntarily and without good cause, thus making her ineligible for benefits. Id. at 140.
In the present case there is no dispute that claimant left her job voluntarily. She was not under the immediate threat of being fired since the investigation had not been completed. Moreover, neither the referee nor the Board premised it's decision to deny benefits on the theory that claimant left her job involuntarily. Therefore, Kane is of little relevance. The essence of claimant's argument is that if she was fired over the missing bank deposits, she would never be able to secure a job that required the handling of money, and if she stayed on the job, she would have to endure the intolerable situation of working under the suspicion of being a thief. Faced with these options, claimant asserts that her act of voluntarily leaving her job was with good cause under Powell. But in Powell there was no allegation by the employer that the claimant had engaged in misconduct. Rather, it was the claimant's position that it was the employer who was about to engage in misconduct by issuing a false and misleading press release and it was the employer in Powell who was asking the claimant to participate in this misconduct and to jeopardize his career.

In the present case the employer was investigating a possible theft of a bank deposit; claimant was on the list of suspects because it was her responsibility to make the deposit. In this situation, because she left before the investigation was completed claimant cannot maintain that she left with good cause. The investigation might have exonerated her from any wrongdoing and if so, she would have been in the same position as the employee in D'Ambra., having left voluntarily but without good cause and not entitled to benefits. On the other hand the investigation may have established either poor job performance or direct misconduct on her part, in which case she would have been fired and not eligible for benefits. See, RIGL § 28-44-18 (Discharge for Misconduct); Kane, supra. Claimant cannot avoid either or both of these consequences by quitting her employment before the investigation is completed. The good cause reasons that existed in Powell which led to the employee's resignation are simply not present in this case.

Upon careful review of the evidence, this Court finds that the decision of the Board was not clearly erroneous in view of the reliable evidence, and further, that the Board's decision was not arbitrary or capricious or an abuse of discretion and the factual findings of the Board were supported by competent evidence in the record. The mixed questions of law and fact presented in this case having been decided by the Board properly and without error, this Court is without authority to overrule the Board's decision. D'Ambra, supra.

Accordingly, the decision of the Board is herby affirmed.