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


KENNETH L. NOONAN:

v. : A.A. No. 06-112:


Department of Labor & Training, Board of Review :


DECISION

McLOUGHLIN, J.  This matter is before the Court on the complaint of Kenneth L. Noonan, 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 was not entitled to receive employment security benefits.
            The facts and travel of the case are as follows.  The claimant was employed eleven years by the Warwick Public School Department. The claimant’s last day of work was March 28, 2006.  The claimant filed for Employment Security benefits June 29, 2006.  In a decision dated July 17, 2006, the Director determined that the claimant left his 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 on the decision July 21, 2006.  A notice of hearing was mailed to all interested parties.  A hearing was postponed at the request of the employer and rescheduled.  A hearing on the appeal was held August 22, 2006, at which time the claimant and the employer appeared and testified. One claimant witness appeared and testified.  The employer was accompanied by one observer.  The claimant was represented by counsel during the hearing.
            The Referee made the following findings of fact. I find by preponderance of credible testimony and evidence, the following findings of fact:
“The claimant worked as a night custodian for the Warwick Public School Department.  The claimant was employed eleven years.  A Warwick Police Department investigation began on March 29, 2006 after the employer reported that the claimant made threatening remarks relating to the school.  The police department indicated that the school staff was not to engage in questioning potential witnesses since the police department would conduct an investigation.  The claimant voluntarily turned in firearms after becoming aware of the investigation and being advised to remain off school property.  The investigation resulted in confirmation that the claimant threatened the safety of the school during a March 27, 2006 conversation with co-workers relating to a recent study and potential lay offs.  The investigation further identified that the claimant had allegedly been tape recording conversations and had made threats regarding his ability to recover credit information on co-workers.  The investigation identified at least one other occasion where the claimant threatened to blow up the school and one occasion where the claimant threatened a co-worker and his family with death.  At the time, the claimant owned an AK47, that weapon was identified by the co-worker’s interviewed as being referred to by the claimant in his threat.

The claimant was placed on a paid suspension during the investigation and during the negotiations between the school department, the union representing the claimant and his attorney.  The school department determined that the employer would proceed with the recommendations of the Rhode Island Employee Assistance Program social worker that the claimant should have a forensic examination.  Following negotiations, the claimant was offered terms that would have required him to pay for half the estimated $3,000 to $5,000 cost.  The employer offered payment terms.  The claimant chose to resign prior to employment reviews as required under his union contract.

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.

  1. 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.
  2.  
  3. In order to show good cause for leaving his job, the claimant must show that the work had become unsuitable or that he was faced with such a situation that left him no reasonable alternative but to resign. The burden of proof rests solely on the claimant.  Insufficient testimony and no evidence has been provided to support either of the above conditions.
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  5. In the instant case, credible testimony and evidence has been provided to support that the claimant engaged in making serious threats to the safety and well being of co-workers and the school population at large.  The claimant had made it known that he possessed the weapons and materials to carry out such threats.  The claimant’s behavior in allegedly tape recording and threatening people’s credit served to support that the employer had an obligation to pursue the claimant’s fitness to continue employment and to protect the safety and well being of all involved.  The claimant’s actions clearly required action and the reasonable request that he be responsible for part of the cost, fails to make the job unsuitable or to cause the claimant to have no reasonable alternative but to resign.
  6.  
  7. Whether or not the claimant had the ability to take potential summer assignments as a forty-two week school employee would have had no impact on his ability to seek other temporary employment during the summer months and thereby eliminate any undo financial hardship as indicated during the hearing.  Additionally, a credible investigation by the Warwick Police Department supports that this is not the first occasion where threats were made by the claimant. Those threats supported by means and opportunity. Therefore, I find and determine that the claimant left his job without good cause and benefits are denied.”
  8.  
  9.             The Referee decided:
  10.  
  11. “DECISION:
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  13. The decision of the Director is affirmed.  The claimant left work voluntarily without good cause.  He is, therefore, subject to disqualification under the provisions of Section 28-44-17 of the Rhode Island Employment Security Act.  Benefits are denied for the week ending April 1, 2006 and until he has had at least eight weeks of work and in each of said weeks had earned an amount equal to or in excess of $142.00.”
  14.  

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, the claimant 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 Decision of the Board of Review was:
“This matter came before the Board of Review on an application for appeal filed on September 6, 2006, of a decision of the Appeal Tribunal (Referee) dated August 23, 2006 in accordance with Section 28-44-47 of the Rhode Island Employment Security Act, 1956, the decision of the Appeal Tribunal has been reviewed, and upon consideration of all the evidence submitted to the Appeal Tribunal  and the decision of the Appeal Tribunal thereon it is hereby declared to be the decision of the Board of Review and incorporated by reference herein.

  1. That the findings of the Appeal Tribunal on the factual issues which are hereby incorporated by reference constitute a proper adjudication of the facts; the conclusions of the Appeal Tribunal as to the applicable law thereto are correct and proper and such findings and conclusions are hereby affirmed.
  2. For the purposes of judicial review in accordance with Section 28-44-51, the decision of the Appeal Tribunal shall be deemed to be the decision of the Board of Review.

 

  1. 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:
  2. “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.”
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  4.             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:
  5. 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.
  6.  
  7. 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.
  8.  
  9. The court, as stated above, rejected the notion that the termination must be “under compulsion” or that the reason therefore must be of a “compelling nature.”

            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.

  1. 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).
  2. The Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:
  3. . . . 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).
  4.  
  5.             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.