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

FREMY PARRA :

V. : A.A. 05-57

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 Fremy Parra, 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, Fremy Parra was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed for three years at Custom Craft Inc. The claimant's last day of work was January 25, 2005. The claimant filed for Employment Security benefits on January 26, 2005. In a decision dated February 7, 2005, the Director determined that the claimant was discharged under disqualifying circumstances according to the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of the decision on February 9, 2005. A hearing on the appeal was held March 14, 2005, at which time the claimant and the employer appeared and testified. The claimant was assisted by his interpreter during the hearing. In a separate decision dated February 7, 2005, the Director determined that the claimant failed to meet the availability requirements under the provisions of Section 28-44-12 of the Rhode Island Employment Security Act. The claimant filed a timely appeal.
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 the job and also failed to meet the availability requirements and was thus disqualified pursuant to Rhode Island General Laws §§ 28-44-18 and 28-44-12.

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, Fremy Parra 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 (1) was discharged for misconduct in connection with his work and (2) failed to meet the availability requirements of Section 28-44-12 was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.
On the first issue, the Board of Review adopted the following findings of fact of the Referee:
"I find by preponderance of credible testimony and evidence, the following findings of fact:

The claimant worked as an assembler at Custom Craft Inc. for three years. The Custom Craft work schedule is customarily Monday through Friday from 7 a.m. through 3:30 p.m. and on Friday from 7 a.m. through 11 a.m. for a total of forty hours per week. Any missed time or overtime is usually worked on Friday after the normal schedule has been completed. The claimant had a number of attendance and tardiness issues that were addressed by the employer. Most recently the claimant was driving to and from work with his brother. On Friday, January 21, 2005, the claimant left at 11 a.m. with his brother in spite of time missed and mandatory overtime. When the claimant was called in for a written warning on January 25, 2005, he provided no reasonable explanation and informed the employer that he would not work beyond 11 a.m. on Fridays. The claimant was given a choice of continuing employment and working the mandatory overtime or being discharged. The claimant refused and was discharged.

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

An individual who is discharged for reasons of proven misconduct in connection with his work must be held to have been terminated under disqualifying circumstances under the provisions of Section 28-44-18 which 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.

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.

In cases of termination, the employer bears the burden to prove by a preponderance of credible testimony and evidence that the claimant committed an act as defined by the law in connection with his work. It must be found and determined that the employer has met their burden.

In the instant case, both the claimant and his brother walked out following a warning regarding his attendance and failure to work mandatory overtime. No good cause was provided by the claimant for his position other than he had medical appointments and other personal issues to attend to. No reasonable evidence has been submitted to support that the normal and ongoing medical issues interfered or resulted in this lack of availability on Fridays.

Therefore, I find and determine that the claimant was discharged under disqualifying circumstances."

On the second issue, the Board of Review adopted the following finding of fact of the Referee:
"I find by preponderance of credible testimony and evidence, the following findings of fact:

Following the claimant's discharge from this assembly position at Custom Craft Inc. because of attendance and lack of availability, he filed for Employment Security benefits. The claimant is unavailable to work most Friday afternoons and limits himself to first shift work in an industry that provides three shifts. The claimant fails to have personal transportation and is reluctant to use public transportation. The claimant is looking for work in the nearby Providence area. The claimant applied for work with four potential employers during the month of February, three of those employers were retail businesses. The claimant registered with netWORKri."

The Board of Review adopted the following conclusions of law of the Referee:
"The issue in this case is whether or not the claimant is subject to disqualification under the provisions of Section 28-44-12 of the Rhode Island Employment Security Act.

Section 28-44-12 reads as follows:

'28-44-12. Availability and registration for work. - (a) An individual is not eligible for benefits for any week of his or her partial or total unemployment unless during that week he or she is physically able to work and available for work. To prove availability for work, every individual partially or totally unemployed registers for work and:

(1) Files a claim for benefits within the time limits and with the frequency and in such manner, in person or in writing, as the director may prescribe;

(2) Responds whenever called for work through the employment office; and

(3) Makes an active, independent search for suitable work.

(b) If an unemployed individual has been determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the director, the individual shall be eligible to receive benefits with respect to any week only if the individual participates in reemployment services, such as job search assistance services, unless the director determines that:

(1) The individual has completed those services; or

(2) There is justifiable cause for the individual's failure to participate in those services.

(c) No individual shall be eligible for any benefits for any week in which he or she fails, without good cause, to comply with the requirements as set forth above.'

In the instant case, the claimant has limited his availability to first shift work in the manufacturing and retail industry. The claimant has failed to engage in an active and independent job search for each of the weeks during which he applies for Employment Security benefits.

Therefore, I find and determine that the claimant fails to meet the availability requirements of the Act."

The Court reviewed the entire record both on the issue of misconduct and the issue of the availability requirements, and 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.