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

STEPHANIE A. PROVENCAL :

V. : A.A. 04-45

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 Stephanie A. Provencal, 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, Stephanie A. Provencal was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant last worked on October 28, 2003. She filed for Employment Security benefits on November 5, 2003. On December 15, 2003 the Director determined that the claimant had been discharged under disqualifying circumstances and that benefits would be denied her under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal on December 29, 2003. A hearing was set down on this appeal on January 20, 2004, at which the claimant appeared and testified. Two witnesses appeared and testified on behalf of the employer, and the employer was represented by counsel.

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 her work and was thus 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, Stephanie A. Provencal 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 for misconduct in connection with her employment 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:
"The claimant had been employed as a housing data clerk for approximately fifteen years and last worked on October 28, 2003. The claimant had a problem with excessive absenteeism and failure to work full days. Her attendance record was addressed on a number of occasions and on April 23, 2003 she was given a written warning. As of that date she had been out of work twenty full days and five partial days out of seventy-seven workdays. Absenteeism continued to be a problem and on October 2, 2003 the claimant entered into a 'LAST CHANCE AGREEMENT' with the employer. The provisions of that agreement provided that if the claimant was absent for more than six days within one hundred and eighty days commencing October 2, 2003 that she would be subject to immediate termination. On October 24, 2003 she left work early without prior approval of her supervisor. The last chance agreement also provided that the claimant would not be late or leave early unless she had the prior approval of her supervisor. The claimant did speak with a co-worker who was given notification of these types of things in the past when the supervisor was not present. In any event, the claimant was given a final written warning on October 28, 2003. The claimant called in on October 29, 2004 [sic] indicating that she would not be into work and then never returned to work following that. As of November 5, 2003 the claimant had been absent more than six times in violation of the last chance agreement and as a result, was terminated on November 6, 2003. The claimant did have medical reasons for some of her absences but many of her absences were not proven to be for medical reasons."

The Board of Review adopted the following conclusions of the Referee:
"The issue involved in this case is whether or not the claimant was discharged under disqualifying circumstances within the meaning of Section 28-44-18 of the Rhode Island Employment Security Act.

In order to impose a disqualification under the provisions of Section 28-44-18, there must be proof that the person who was discharged committed an act of misconduct in connection with the work.

Section 28-44-18 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.

I find from the credible evidence before me that the employer has met the burden of proving misconduct within the meaning of the above Section of the Act. The claimant's excessive absenteeism after many warnings amounted to a willful disregard of her employer's interest. Benefits must be denied her."

Section 28-44-18 of the General Laws of the state of Rhode Island provides:
28-44-18. Discharge for misconduct. -- An individual who has been discharged for proved misconduct connected with his or her work shall thereby become ineligible for waiting period credit or benefits for the week in which that discharge occurred and until he or she establishes to the satisfaction of the director that he or she has, subsequent to that discharge, had at least eight (8) weeks of work, and in each of that 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; provided, however, that any individual who is required to leave his or her work pursuant to a plan, system, or program, public or private, providing for retirement, and who is otherwise eligible, shall under no circumstances be deemed to have been discharged for misconduct. However, if an individual is discharged and a complaint is issued by the regional office of the national labor relations board or the state labor relations board that an unfair labor practice has occurred in relation to the discharge, the individual shall be entitled to benefits if otherwise eligible. 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.

The standard for defining "misconduct" under section eighteen was provided by the Rhode Island Supreme Court in Turner v. Department of Employment Security, 479 A.2d 740, 741-42 (R.I. 1984), in which the Court quoted from Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1940):
'[M]isconduct' . . . is limited to conduct evincing such wilful 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 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.

There is substantial evidence on the record that, if believed by the Board of Review, they could conclude that the claimant is guilty of excessive absenteeism and was given sufficient and timely warnings.
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.