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

MANUEL POMBO :

V. : A.A. 05-09
: A.A. 05-63

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

MOORE, J. This matter is before the Court on an appeal by the employee from a decision by the Director, the Referee and the Board of Review denying benefits and finding that the employee was discharged under disqualifying circumstances pursuant to G.L.R.I. 28-44-18.
Mr. Pombo worked for the Providence Athenaeum for 14½ years as manager of Buildings and Grounds. He was discharged for excessive absences and tardiness. The testimony from the Director, Richard Olsen, was that Mr. Pombo frequently arrived late. On two occasions his tardiness resulted in problems with snow removal (12/3/03 and 3/17/04). Mr. Pombo informed the employer that he had several medical conditions, including depression, and the employer advised him to seek medical treatment. At no time did Mr. Pombo give the employer any medical documentation that his depression made it difficult for him to awaken on time to get to work. Mr. Pombo did not ask for any special accommodation in the hours of his job.

In June of 2004 Mr. Pombo removed some money from a cash box with the intention of repaying it. He had been warned about this behavior in December of 2003. In June the Personnel Committee of the Athenaeum voted to terminate Mr. Pombo but the Director wanted to give Mr. Pombo another chance.

On June 21st the Director delivered to Mr. Pombo a letter warning him about problems with his job performance. On June 22nd Mr. Pombo called in mid-morning to say he was ill and would not be into work. He was terminated on June 23rd.

This case was remanded by Chief Justice DeRobbio for consideration of medical reports collected by Mr. Pombo. On remand the Board of Review found claimant's evidence to be "unpersuasive."

In his appellate brief Mr. Pombo raises the issue of the reliability of several e-mails in regard to his tardiness. These e-mails only relate to two dates, April 20 and 21. The e-mails are time stamped earlier than the time of the events described. Although this is puzzling the Court believes that they are trustworthy and that there was an error in the e-mail program.

The Court affirms the decision of the Board of Review. The Court has a limited scope of review pursuant to G.L.R.I. 42-35-15(g). The Court believes that the medical evidence presented by Mr. Pombo is insufficient. None of the documents describe any treatment during the period in question February 2004 - June 2004. In fact Mr. Pombo's own e-mail states that he made an appointment with his psychiatrist only on June 17. (Included in Employer's Exhibit 5). There is no evidence that during the period when his job was in jeopardy that he made any serious efforts at treatment. Frequent tardiness and absenteeism have been found to be misconduct. Misconduct is defined in Turner v. Department of Employment Security, 479 A.2d 740 (R.I. 1984). In this situation Mr. Pombo's pattern of tardiness and absences did affect the operation of the Athenaeum. Mr. Pombo was warned in March 2004 but continued to arrive at work late.

For all the above reasons the Court affirms the Decision of the Board of Review and finds the claimant not eligible for benefits.