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

LISA M. NOYES-DUGUAY, M.D. :


V. : A.A. 04-55


DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

HIGGINS, J. This matter is before the Court on the complaint of Lisa M. Noyes-Duguay, M.D., 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 entitled to receive employment security benefits.
The travel of the case is as follows. The claimant had been employed for the office of Dr. Lisa Noyes-Duguay a period of two years. Her last day of employment status was December 31, 2003. She was discharged from this job. The Director determined that the claimant had been discharged under other than disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The employer filed a timely appeal. A hearing on the appeal was scheduled. A notice of hearing was sent to all interested parties. The hearing was held on February 3, 2004. The claimant appeared and testified. The claimant's daughter appeared as an observer. Employer representative testified by telephone.
The Referee held the claimant was entitled to receive unemployment security benefits, based on the determination that claimant was thus qualified 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, the employer 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 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:
"2. FINDINGS OF FACT:

The claimant had worked for this employer a period of two years through December 31, 2003. The claimant was out of work from December 1, 2003 through December 5, 2003 because her dog was terminally ill. The employer granted permission for the claimant to be absent during that time period. While the claimant was absent the employer became aware that patients had complaints regarding the claimant's performance. The claimant returned to work on December 8, 2003 and worked without incident until December 31, 2003, when at that time she was terminated. The claimant was not informed of the specific allegations of complaints by patients nor were there individual circumstances identified. The claimant denies the allegations."

The Board of Review adopted the following conclusions of the Referee:
"3. CONCLUSION:

The issue involved is whether or not the claimant was discharged from this job under disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act.

In the case of Turner vs. Department of Employment and Training, Board of Review, 479 A 2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a general definition of the term, 'misconduct', as enunciated in Boynton Cab Co. vs. Newbeck, [sic] 237 Wis. 249, 296 N.W. 636 (1941):

''[M]isconduct' . . . is limited to conduct evincing such willful 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 employer's interest or 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. Id. at 259-60, 296 N.W. at 640.'

The right of an employer to discharge an employee is not at issue in this case. The sole issue is whether or not there is evidence of proved misconduct in connection with the work directly resulting in the termination. The burden of establishing proved misconduct rests solely upon the employer. The evidence presented establishes that although the claimant's absence from work during that week did create a hardship, nevertheless the employer did grant permission for the claimant to be absent. In addition, the evidence also establishes that the claimant was not informed of any specifics or given the opportunity to be aware of or defend herself on the allegation of patients' complaints. Although the employer was aware of these alleged complaints, no action was taken by the employer until December 31, 2003 when at that time the claimant was terminated. I find there has been insufficient evidence presented by the employer to establish misconduct as of the termination dated December 31, 2003. Benefits may not be denied on this issue."

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.