Quiroa

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

VINICIO A. QUIROA

V. : A.A. 05-16

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 Vinicio A. Quiroa, 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, Vinicio A. Quiroa, was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant filed a claim for Employment Security benefits on October 8, 2004. The Director determined that the claimant was discharged under disqualifying circumstances under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The Director further determined that the claimant had been overpaid and required that the claimant make restitution under the provisions of Section 28-42-68 of the same Act. The claimant filed a timely appeal of this decision on November 9, 2004. A hearing on the appeal was held on December 1, 2004, at which time the claimant, with an observer, appeared and testified. The employer, with proper notice, did not appear.

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 his 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, Vinicio A. Quiroa 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 his employment and that the benefits received were erroneously paid and subject to repayment was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

A majority of the Board of Review adopted the following findings of fact of the Referee:

“The claimant was employed as a dining room manager by the employer. On October 7, 2004, the claimant failed to attend a mandatory weekly managers’ meeting. The claimant did not call the employer but went in at 4:30 p.m. for his regularly scheduled evening shift. The claimant had received a warning for missing several other mandatory weekly managers’ meetings, although, in those cases, he was unaware that the meetings had been rescheduled. On October 7, 2004, the claimant’s manager dismissed him for failing to attend the managers’ meeting held that day.

When he filed his claim for Employment Security benefits, the claimant indicated to the Department of Labor & Training that he had been laid off, although he had been terminated.”

A majority of the Board of Review adopted the following conclusions of the Referee:

“The first issue 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.

An individual who is discharged for proved misconduct in connection with the work must be held to have been discharged under disqualifying circumstances within the meaning of Section 28-44-18.

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.

The burden of proof in establishing misconduct in connection with the work rests solely on the employer. The credible evidence and testimony presented at the hearing establishes that the claimant was aware that he was required to attend the weekly managers’ meetings. He had received warnings regarding his prior failure to attend a number of meetings. The claimant failed to attend the meeting on October 7, 2004 and did not contact the employer until he went in to work for his regularly scheduled shift at 4:30 p.m. I find that the claimant’s failure to attend the mandatory managers’ meeting constitutes deliberate conduct in willful disregard of the employer’s interests, and therefore misconduct, under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. Accordingly, benefits must be denied on this issue.

The second issue in this case is whether or not the claimant is overpaid Employment Security Benefits and subject to recovery under the provisions of Section 28-42-68 of the Rhode Island Employment Security Act.

28-42-68. RECOVERY OF ERRONEOUSLY PAID BENEFITS. - (a) Any individual who, by reason of a mistake or misrepresentation made by himself, or another, has received any sum as benefits under chapters 42 -- 44, of this title, in any week in which any condition for the receipt of the benefits imposed by those chapters was not fulfilled by him or her, or with respect to any week in which he or she was disqualified from receiving those benefits, shall in the discretion of the director be liable to have that sum deducted from any future benefits payable to him or her under those chapters, or shall be liable to repay to the director for the employment security fund a sum equal to the amount so received, plus, if the benefits were received as a result of misrepresentation or fraud by the recipient, interest thereon at the rate set forth in subsection 28-43-15. That sum shall be collectible in the manner provided in subsection 28-43-18 for the collection of past due contributions. All interest received hereunder shall be credited to the unemployment security interest fund created by subsection 28-42-65.

(b) There shall be no recovery of payments from any person who, in the judgment of the director, is without fault on his or her part and where, in the judgment of the director, that recovery would defeat the purpose of chapters 42 -- 44 of this title.

The claimant received benefits for the weeks ending October 9, 2004 through October 30, 2004, inclusive. At the time he filed his claim for benefits, the claimant failed to report to the Department of Labor & Training that he had been discharged from his position. As a direct result of the claimant’s misrepresentation, he received benefits to which he was not entitled. Since the claimant is at fault for the misrepresentation, it would not defeat the purpose of the above Section of the Act to require that the claimant make restitution.”

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.

The Court made a review of the entire record. It should be noted that all parties were notified of the time and place for the hearing. The employer did not appear and did not testify telephonically. The burden of proving misconduct is placed upon the employer.

The evidence presented at the hearing is as follows:

DEPARTMENT EXHIBIT

#1 The Claimant’s Data Sheet

#2 The Decision of the Director

#3 The Claimant’s Appeal

#4 Request for Certification of Earnings

(2 Forms)

AND

Form signed by the employer indicating that

Clamant was terminated.

REFEREE EXHIBIT

#1 Notice of Hearing

EMPLOYER EXHIBIT

#1 A number of forms sent in by the employer.

The Referee explained the procedure of the hearing. (Referee Transcript, Page 4.)

“MS. HOWARTH: I’ll now explain the procedure for the hearing, Mr. Quiroa. Normally, if the employer is here, they testify first. You have an opportunity to question them, then you testify, and they have an opportunity to question you. If the employer appears very shortly after we begin, we’ll follow that procedure, but right now we’ll begin with your testimony.”

Immediately thereafter, the claimant was sworn in and questioned by the Referee. The record is clear that the Referee called the claimant as a witness to testify. He asked questions on direct examination and he cross-examined the claimant.

The claimant had no opportunity to cross-examine the employer, who had the burden of proving misconduct by a fair preponderance of the evidence. All exhibits presented by the employer, marked Employer Exhibit 1, are considered hearsay and were not subject to cross-examination to test the validity or the truth of the matters.

The employer has the burden of proof. In this case, the failure of the employer to present testimony at the hearing results in a failure on the part of the employer to meet his burden of proof in proving misconduct.

In this case, the Court finds that there is no sworn testimony by the employer to establish misconduct.

A review of the entire record demonstrates that there is no 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 “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record,” and that said decision was “arbitrary and capricious and characterized by abuse of discretion and clearly unwarranted exercise of discretion.” Rhode Island General Laws § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby reversed.