STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
RAMON
A. PENA
V.
: A.A. 03-96
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 Ramon A. Pena, 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, Ramon A. Pena was not entitled to
receive employment security benefits.
The travel of the case is as
follows. The claimant was employed
for seven months. The claimant’s last day of work was May 16, 2003.
The claimant filed for Employment Security benefits on May 16, 2003.
In a decision dated June 4, 2003 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 on June 6, 2003.
A notice of hearing was mailed to all interested parties June 19, 2003.
A Referee decision dated July 3, 2003 dismissed the claimant’s appeal
for want of prosecution. The
claimant filed a timely appeal on July 15, 2003.
A notice of hearing was mailed to all interested parties on July 28,
2003. A hearing on the appeal was
held on August 7, 2003 at which time the claimant appeared and testified.
The claimant was assisted by an interpreter during the hearing.
The employer, with proper notice, failed to appear and testify.
The
Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant was disqualified 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, Ramon
A. Pena 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 discharged under disqualifying circumstances and the denial of the
claimant’s request to reopen after a dismissal of the case for want of
prosecution 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:
“I
find by preponderance of credible testimony and evidence the following findings
of fact: The claimant was
discharged on May 16, 2003 and filed for Employment Security benefits that same
day. Following a denial by the
Department of Labor & Training the claimant filed an appeal on June 6, 2003.
The claimant’s May 27, 2003 adjudication was with the assistance of a
Spanish-speaking interpreter and included an explanation on the right to appeal
all decisions. Additional
information provided by the Department of Labor & Training explains that
process. On the morning of the
hearing, July 1, 2003, one hour before the hearing a telephone call by a party
identifying them self as a cousin telephoned indicating the claimant would be
unable to participate because of illness. The
claimant was identified to be out of state.
The claimant was not hospitalized and was expected to telephone in
personally. No contact was made in
a timely fashion and approximately 1:00 p.m. the claimant’s hearing was
dismissed. The clamant subsequently
telephoned from out of state to give an explanation.
The claimant needed a better connection and an interpreter.
Arrangements were made to telephone the claimant back at a telephone
number he provided, which turned out to be an erroneous number that did not
receive incoming calls. The claimant failed to contact the Board of Review office as
requested."
The Board of Review adopted the
following conclusions of the Referee:
“The
first issue is whether or not the claimant’s appeal hearing can be reopened.
Board
of Review Rules of Procedure, Rule 13, reopening by Referee state:
After
a decision, the Referee may reopen any matter for reason of fraud, mistake,
collusion or substantial new evidence, or when the interest of justice so
require.
The
claimant provided continuous conflicting testimony.
No credible testimony or evidence has been provided to support that there
was good cause for the claimant’s failure to appear.
While the alleged illness kept him from participating in the hearing,
there is no credible testimony to explain why he was unreachable if he was too
sick to be out and about.”
A review of the record shows that
the claimant failed to appear for a hearing on July 1, 2003.
A telephone call was received by a caller, identifying herself as the
claimant’s cousin, who indicated he was in New York.
The caller was informed that claimant must call on July 1, 2003.
A call was received at 12:13 p.m. There
was a bad connection. There was no
further call.
The record demonstrates that the
case was dismissed for failure to appear and for want of prosecution.
On July 15, 2003 the claimant filed
an appeal. On August 7, 2003, the
Referee heard the matter. The first
issue raised was a motion to reopen the hearing that was dismissed for want of
prosecution pursuant to Rule 13, and the discharge pursuant to 28-44-18.
The record demonstrates that the
Referee could conclude that the claimant failed to provide sufficient,
substantial and relevant evidence to demonstrate that there was fraud, mistake,
collusion or substantial new evidence that, in the interest of justice, this
matter should be reopened.
The issue in this case is a factual
issue. The Referee made findings of
fact and conclusions based upon his determination of the credible evidence
presented at the hearing.
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.