STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
HENRY
RAMIREZ
V.
: A.A. 00-66
DEPARTMENT
OF LABOR AND
TRAINING, BOARD OF REVIEW
D
E C I S I O N
QUIRK, J.
This matter is before the Court on the complaint of Henry Ramirez, 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, Henry Ramirez was not entitled to
receive employment security benefits. For
the reasons set forth below, the decision of the Board of Review is hereby
reversed.
The travel of the case is as follows.
The Referee found the claimant was employed by the employer for three
months, although the record has indications it could have been as long as two
years and three months (claimant data sheet) or ten months (employment record).
The
claimant’s last day of work was December 12, 1999. He filed for Employment Security benefits which were denied
by the Director of the Department of Employment and Training who determined the
claimant was discharged under disqualifying circumstances within the provisions
of §
28-44-18 of the Rhode Island Employment Security Act.
A
timely appeal was filed and a hearing held before the Referee on this appeal.
The Referee upheld the Director’s decision finding the claimant had
engaged in misconduct. A timely
appeal of the Referee’s decision to the Board of Review was filed.
The Board, without conducting a hearing, affirmed the Referee’s
decision and denied benefits based upon a review of the transcript.
A
timely appeal to the District Court resulted in a remand to the Board of Review
to conduct an evidentiary hearing. The
Board, after the conclusion of the hearing, determined that the Referee’s
decision was a proper adjudication of the facts and the decision was upheld.
Thereafter, claimant filed an Amended Complaint with the District Court
for judicial review. Jurisdiction
for review of the decisions of the Board of Review 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 engaged in misconduct 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:
“I
find by a preponderance of testimony the following findings of fact:
The claimant worked as a laborer for the employer for a period of three
months. The claimant was given an
employee handbook that explained leave of absence and termination policies.
The claimant requested a leave of absence in order to visit his sick
father in the Dominican Republic. The
claimant was granted a leave of absence beginning December 10, 1999 and
terminating January 2, 2000, contingent upon his completion of the appropriate
paperwork and providing a completed medical report on his father.
The claimant failed to report for work on January 3, 2000.
The claimant had automobile difficulties. Claimant reported for work on January 4, 2000, and was
terminated based upon his failure to provide the required medical documentation
and failure to report for work after the completion of the leave of absence.”
The Board of Review made the following additional findings of fact:
“The
employer has a policy that its employees must report an absence from work by
calling no later than 7:30 am. The
employer discussed with the claimant his failure to provide the required medical
documentation. The employer was
willing to grant the claimant an additional week to obtain the medical
documentation. The claimant advised
that he would need more time. Prior
to leaving his work to take a leave of absence to visit his sick father, the
employer supplied the claimant with a medical form to be completed.
The form was not completed upon the claimant’s return to work on
January 3, 2000. The claimant’s
father passed away while the claimant was visiting.”
A majority of the Board of Review adopted the following conclusions of
the Referee:
“In
cases of termination, the employer bears the burden to prove by a preponderance
of the credible testimony and evidence that the claimant committed an act or
acts of misconduct as defined by the law in connection with his work.
In the instant case, it must be found and determined that the employer
has met their burden.
The
claimant was advised by the employer, through a Spanish speaking human resource
representative, that his leave of absence was contingent upon his providing
medical documentation regarding his sick father.
Claimant was to forward this information from the Dominican Republic
prior to his return to work on January 3, 2000.
The claimant failed to forward any medical documentation to the employer.
Claimant failed to contact the employer or to return to work on January
3, 2000. No credible evidence or
testimony has been provided to support that the claimant was not in willful
disregard of the employer’s best interest.
Therefore, I find and determined that the claimant was discharged under
disqualifying circumstances and benefits are denied.”
The Board of Review made the following additional conclusions:
“It
is not contested that the claimant did not call his employer prior to 7:30 am to
report that he would not be present because of a problem with an automobile.
His initial reason for not doing so was that he did not have enough money
to make a long distance phone call. The
record shows that the claimant had very little money on arriving at the airport.
However, he was able to call a fr iend for a ride home and borrowed money
to purchase a car battery the following day.
Later on the claimant testified the reason he did not call was that after
7:30 am he did not think it mattered since he could not call prior to 7:30 am.
The employer had a policy that one had to report the absence prior to
7:30 am. The claimant believed the
absence could not be excused so there was no reason to call.
We also conclude that the claimant’s insistence that he needed an
additional 30 days to return the medical documentation was unreasonable.
We
affirm the Referee’s decision. The
claimant’s failure to call or report his absence on the day the employer
expected him back to work was misconduct. In
addition, his failure to bring the required medical documentation and to insist
that he needed an additional 30 days also constitutes misconduct. The claimant
was discharged for disqualifying reasons under Section 28-44-18 of the Act.”
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.
DISCUSSION
It is the claimant’s position that
the events which led to his termination did not rise to the level of misconduct
required by the Act as delineated in Turner.
A review of the record in its entirety reveals the claimant made a
request for a leave of absence to travel to the Dominican Republic to attend to
his sick father. The request was
granted for the period of December 10, 1999 to January 2, 2000, contingent upon
the return of medical forms provided to the claimant by the employer to verify
the illness of claimant’s father. These
forms included a section to be filled out by a physician.
The forms were explained to the claimant at the time of delivery through
the use of an interpreter. The
claimant does not speak English.
The claimant, upon his arrival in the Dominican
Republic, was confronted not only his father’s illness but also his unexpected
death on December 23, 1999, the burial of his father, and family
responsibilities related to his widowed mother and her minor sons.
The claimant testified he used all his money for these reasons in the
Dominican Republic and returned with no money upon arrival at the airport on the
evening of January 2, 2000.
The claimant testified he called a friend collect
from the airport to pick him up that night. He awoke the next day at 5:00 a.m. to a snow storm and
attempted to leave for work in sufficient time to arrive at the place of
employment which was located at least an hour away.
He discovered his car, which had not been started during his absence, had
a dead battery.
The claimant was under an obligation to report his
inability to get to work by calling his employer before 7:30 a.m.
He did not do so. He
testified he did not know his neighbors in his new apartment building and did
not feel he could ask them if he could use their phones.
He had no money to make a long distance call to the employer and a
collect call could not be received by the employer’s automated phone system.
A friend who was located by the claimant at a
beauty shop at approximately 1:30 p.m. agreed to let claimant borrow thirty-six
dollars to buy a new battery for the car. Claimant did not ask for money to make a long distance call
to the employer at that time because he believed the employer would regard the
absence as unexcused regardless of whether the claimant called at anytime after
7:30 a.m. The witnesses for the
employer confirmed this was true and that a call received after 7:30 a.m. would
not have prevented the claimant’s termination.
Claimant returned to work at 7:30 a.m. the
following day, January 4, 2000 knowing his absence the day before would be
construed as unexcused but not expecting termination. He was asked if he had the completed medical documents with
him. He did not.
He testified he did not have these forms completed because his attention
was focused on his father’s death. He
offered to supply the death certificate within thirty days.
The employer found this offer unacceptable and the claimant was
terminated.
A review of the transcript from the hearings before
the Referee and the Board of Review reveals the claimant was terminated for two
distinct reasons. The first was his
failure to return the completed medical forms on or before his scheduled return
from the leave of absence. The
second was his failure to return to work on January 3, 2000 without informing
the employer by 7:30 a.m. that day.
The issue before the Court is whether claimant’s
conduct related to these two reasons, considered with the totality of the
circumstances in which it occurred, was misconduct as contemplated by the Act.
Stated differently, did claimant engage in conduct “evincing such
willful or wanton disregard” of the employer’s interest and/or
“carelessness or negligence of such a degree or recurrence as to manifest
equal culpability, wrongful intent or evil design” so as to constitute
misconduct prohibiting the award of benefits.
If, however, the facts show “mere inefficiency, unsatisfactory conduct,
failure of good performance as a result of inability or incapacity,
inadvertencies or ordinary negligence in isolated instances, or good faith
errors in judgment or discretion” benefits should be awarded.
It is apparent the purpose of the requirement for
the return of the completed medical documents was to prove claimant’s need for
the leave of absence was truly the illness of his father.
The fact claimant’s father died during the leave substantially bears
out the claim of illness. Claimant’s
failure to strictly comply with the employer’s request prior to the expiration
of the leave, under the circumstance of his father’s death in a foreign
country, does not as a matter of law equate to “misconduct” within the
meaning of the Act. The death
certificate was obtained from the foreign country and presented to the Board of
Review. The employer would not have been prejudiced by allowing the
claimant sufficient time to produce this document and, if reasonably deemed
inadequate to prove the illness existed at the time the leave was granted, the
completed forms as originally requested. (Assuming,
of course, no health care confidentiality law exists in the Dominican Republic
which would prevent the completion of this form by the father’s health care
providers.)
The Board of Review’s conclusion that
claimant’s failure to return the completed medical document constituted
misconduct, disqualifying him from receiving benefits under §
28-44-18, was clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record.
Turning attention to the second reason claimant was
terminated, testimony offered by the employer indicated that claimant’s
unexcused absence from work on January 3, 2000 served as a basis for his receipt
of a third warning in three months by the employer regarding unacceptable
conduct. The issuance of this third
warning, in and of itself, resulted in termination pursuant to company policy.
It should be noted the prior two warnings did not relate to lateness or
absenteeism. The employer made it
clear at the hearing before the Board of Review that the failure of claimant to
call before 7:30 a.m. to report his expected absence would result in termination
and no call received after that time would prevent the termination.
Again, given the totality of the circumstances, the
issue before the Court is whether claimant’s failure to make the call to the
employer before 7:30 a.m. rises to the level of “misconduct” contemplated by
the Act. This Court is cognizant of
its duty to avoid substituting its judgment for that of the administrative
agency with regard to findings of fact and the assessment of credibility.
The agency’s decision must be affirmed unless its findings are clearly
erroneous. Guarino v. Department
of Social Welfare, id.
The record shows the credibility of claimant was a
substantial issue for the Referee and the Board of Review.
The hearing before the Referee commenced with the Referee asking the
interpreter:
“.
. . are you fluent in both Spanish and English?”
The
interpreter responded:
“In
Spanish, but in English, I can speak, but I’m not fluently. (sic)”
(Ref.
Tr. p. 1)
After
further colloquy with the interpreter, the hearing proceeded.
The Referee’s response to claimant’s claim that he did not have the
ability to call the employer before 7:30 a.m. on January 3, 2000 is clear from a
review of the Referee’s comments and questions during the hearing:
“Sir,
I understand, but let me make something clear. You
have a receipt for a battery, dated January 4, 2000.
There’s absolutely no name on this.
It’s just the receipt. You
were asked to provide a doctor’s note, and not necessarily an obituary. You didn’t provide that.
I have no idea when you actually returned. There’s no documentation.
You had absolutely no money to put in a pay phone on the day you
couldn’t go to work, sir? (Ref.
Tr. p. 29)
And
there’s nothing you could do to make a call to the employer?
* * *
But --I understand, but what would that be, like a
$2.00 call?
* * *
Yeah, to save your job, sir, you didn’t have
$2.00 left when you returned?”
(Ref.
Tr. p. 31)
It is clear the Referee was incredulous of the claim that the call could
not be made. This skepticism was
adopted at the hearing before the Board of Review.
The transcript reveals the following:
“ATTY.
FOR Well the testimony was that he had to
leave at 5:30 in
BOARD:
the morning to go to work, so if he went into his car at 5:30 in the
morning and found out his battery was dead, it seems to me that he could have
made a phone call by 7:30.
(Board
of Review, Tr. p. 33)
*
* *
CLAIMANT’S On the morning of January 3rd, his (inaudible) he
ATTY: didn’t have any money left after paying the funeral
expenses and for his ticket back and
providing for his family before he left. It
took him some time that day to locate a friend to borrow money from to get a new
car battery. He finally did find someone to borrow the money from for the
battery. He was unable to call.
ATTY
FOR BOARD: I understand, but the
record is full of conflict in that area, counsel.”
(Board
of Review, Tr. p. 5)
*
* *
CHAIRMAN:
He was expected back at a specific time, and he
was expected to provide some medical records.
Subsequently it didn’t get provided.
The narrow issue is to establish that, establish that there is some
reasons why that wasn’t doable or why a phone call couldn’t be made to the
employer which frankly I can’t establish from the testimony any credible
reason why a phone call wasn’t made.
ATTY
FOR CLAIMANT: (Inaudible) he had no money.
He didn’t have a phone in his house.
He doesn’t even have a phone card.
He lives about an hour away from where he works.
CHAIRMAN:
You got conflicting testimony in here that he lived with someone, then he
didn’t live with someone. You got
one statement that said he lives with a girlfriend, then he says he called his
neighbor the next day, and the neighbor who took him to work communicated with
the employer, so I mean the credibility issue is all over the place based on my
reading of the transcript.”
(Board
of Review, Tr. p. 7 and 8)
A fair reading of the transcript does not bear out the conclusion that
claimant gave conflicting testimony with regard to whether he lived with someone
at the time this claim arose. He
was asked by the Referee if he was married.
He responded by saying “he lived with someone”.
When the Referee construed this statement as a representation that he
lived with someone on January 3, 2000, the claimant immediately clarified that
he had lived with someone in the past (information he had offered as relevant to
the question of marital status) but no longer did so on January 3, 2000.
Therefore, the Chairman’s characterization of this testimony as “You
get conflicting testimony in here that he lived with someone, then he didn’t
live with someone…” (Board of Review, Tr. p. 7) is clearly erroneous.
The Chairman continued stating “… You got one
statement that said he lives with a girlfriend, then he says he called his
neighbor the next day, and the neighbor who took him to work communicated with
the employer, so I mean the credibility issue is all over the place based on my
reading of the transcript.” (Board
of Review, p. 7 and 8). Yet review
of the transcript from the hearing before the Referee reveals no testimony from
claimant indicating his neighbor ever communicated with the employer.
(Referee Tr. p. 28). Therefore,
a fair reading of the transcript again does not bear out the conclusion claimant
gave conflicting testimony. This
conclusion is clearly erroneous.
The Board’s erroneous conclusion
regarding claimant credibility most certainly effected it’s willingness to
accept any reason as being valid for claimant’s failure to report his absence
before 7:30 a.m. on January 3, 2000.
The findings, inferences,
conclusions, and decision of the Board of Review are clearly erroneous in view
of the reliable, probative, and substantial evidence on the whole record.
The decision to deny benefits does not respond to “the expressed
legislative policy that the Act 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.” Harraka
at 197. 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.”
Harraka.
Accordingly, the decision of the
Board is hereby reversed.