STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

HENRI T. RASCO

V. : A.A. 02-38


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 Henri T. Rasco, 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, Henri T. Rasco was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant was employed for eighteen months by the employer. The claimant's last day of employment was May 28, 2001. The claimant filed for Employment Security benefits on December 6, 2001. In a decision dated January 17, 2002 the Director determined the claimant left his job without good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of the decision on January 21, 2002. A hearing on the appeal was held on February 20, 2002 at which time the claimant appeared and testified. The claimant was represented by his attorney 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 left work voluntarily without good cause and was thus disqualified pursuant to Rhode Island General Laws § 28-44-17.
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, Henri T. Rasco 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 left work voluntarily without good cause 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 a preponderance of testimony and evidence the following findings of fact: The claimant worked as a supervisor in the CVS Distribution Center. After eighteen months of employment the claimant complained to the Human Resource Department that he was being harassed by his manager and a fellow supervisor regarding his ethnicity. On May 24, 2001 the claimant met with Human Resource officials and provided a written statement. The claimant requested that the investigation and action be kept confidential. The employer has a zero tolerance policy regarding discrimination. On or about Friday, May 25, 2001, the employer took action regarding the accusations and terminated the claimant's manager. The fellow supervisor was instructed to apologize to the claimant. The claimant returned to work on Monday, May 28, 2001. He subsequently filed for Temporary Disability Insurance benefits effective May 30, 2001. The claimant received the Temporary Disability Insurance benefits until those benefits exhausted during the week ending December 8, 2001. The employer sent the claimant a letter on December 4, 2001 regarding his failure to return to work on December 1, 2001. The claimant was given until December 21, 2001 to submit paperwork for an extension on his medical leave of absence if he required additional time. The claimant had determined that he would not return to work after his medical release on December 1, 2001 because of the working conditions that he felt were unacceptable. The claimant filed for Employment Security benefits on December 6, 2001."

The Board of Review adopted the following conclusions of the Referee:
"The issue in this case is whether or not the claimant left work voluntarily with good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act.

An individual who leaves work voluntarily must establish good cause for taking that action or else be subject to disqualification under the provisions of Section 28-44-17.

In order to establish that he had good cause for leaving his job, the claimant must show that the work had become unsuitable or that he was faced with such a situation that left him no reasonable alternative but to terminate his employment. The burden of proof in establishing good cause rests solely on the claimant. There has been insufficient testimony and no evidence presented to establish that the work itself had become unsuitable or that the claimant was faced with a situation that left him no reasonable alternative but to terminate his employment.

In the instant case, the claimant advised the Department of Labor & Training that he did not intend to return to his former employer after his release to do so from his doctor. While the claimant failed to describe the working conditions that kept him from his return, he gave no indication to the Department of Labor & Training that there was any discrimination issue. The record is void of any complaints filed with either the employer or any governmental/regulatory body prior to a May 22, 2001 complaint. Upon filing his written complaint the employer took immediate action according to the zero tolerance policy referred to by the claimant. While the claimant seems to have expected a covert action that would have concealed his identity, he was unable to express what type of action he expected. The alleged remarks were made in a public forum by management employees and directed at a management employee. It is alleged that the discriminatory remarks were directed at the claimant for his entire eighteen-month employment. Once notified the employer's swift action and the level of severity clearly show that the claimant had the full support of his employer.

Therefore, I find and determine that the claimant left his job without good cause and benefits are denied."

An individual who leaves work voluntarily must establish good cause for taking that action or else be subject to disqualification under the provisions of Section 28-44-17, which provides:
28-44-17. Voluntary leaving without good cause. - An individual who leaves work voluntarily without good cause shall be ineligible for waiting period credit or benefits for the week in which the voluntary quit occurred and until he or she establishes to the satisfaction of the director that he or she has subsequent to that leaving had at least eight (8) weeks of work, and in each of those 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. For the purposes of this section, voluntarily leaving work with good cause shall include sexual harassment against members of either sex. For the purposes of this section, voluntarily leaving work without good cause shall include voluntarily leaving work with an employer to accompany, join or follow his or her spouse in a new locality in connection with the retirement of his or her spouse, or failure by a temporary employee to contact the temporary help agency upon completion of the most recent work assignment to seek additional work unless good cause is shown for said failure; provided, that the temporary help agency gave written notice to the individual that the individual is required to contact the temporary help agency at the completion of the most recent work assignment to seek additional work.

The approach to be taken in defining "good cause" was stated in 1964 in Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597-98 (1964). The court noted that a liberal reading of good cause would be adopted:
To view the statutory language as requiring an employee to establish that he terminated his employment under compulsion is to make any voluntary termination thereof work a forfeiture of his eligibility under the act. This, in our opinion, amounts to reading into the statute a provision that the legislature did not contemplate at the time of its enactment.

In excluding from eligibility for benefit payments those who voluntarily terminate their employment without good cause, the legislature intended in the public interest to secure the fund from which the payments are made against depletion by payment of benefits to the shirker, the indolent, or the malingerer. However, the same public interest demands of this court an interpretation sufficiently liberal to permit the benefits of the act to be made available to employees who in good faith voluntarily leave their employment because the conditions thereof are such that continued exposure thereto would cause or aggravate nervous reactions or otherwise produce psychological trauma.

The court, as stated above, rejected the notion that the termination must be "under compulsion" or that the reason therefor must be of a "compelling nature."
A review of the record reveals that upon the receipt of the appeal from the decision of Director to the Referee, due notice was given to CVS.
At the hearing before the Referee, scheduled for February 5, 2002 and rescheduled to February 20, 2002, only the claimant/appellant appeared, was sworn and gave testimony under oath.
Statements presented to the Director were admitted into evidence over objection of counsel.
CVS (the employer) did not respond to the hearing. On February 4, 2002, CVS, through its unemployment compensation specialist, filed a withdrawal from hearing based on claimant's appeal.
The pertinent part of the letter from the employer dated February 4, 2002, is as follows:
"CVS Pharmacy, Inc. hereby withdraws from the hearing scheduled for the unemployment claim of Henri T. Rasco, SSN 035-46-6071. CVS continues to assert that Mr. Rasco left voluntarily without good cause when he failed to return from a medical leave of absence or complete the required documents to request an extension of his leave. This decision to withdraw is based on CVS' understanding that the determination of the RI Department of Labor and Training, Board of Review, is not admissible in any other forum.

Please send all future correspondence regarding this claim/hearing to:

CVS Pharmacy, Inc.
Attention: Unemployment Unit-SOC
One CVS Drive
Woonsocket, Rhode Island 02895

Should you have any questions regarding this withdrawal from the hearing, please contact me Monday through Friday at 1-800-876-4360, ext. 3, between 8:30 AM and 4:30 PM.

Thank you for your attention to this matter."

Although the employer maintained the employee left work without good cause, the employer failed to appear at the hearing, after due notice, to rebut the testimony of the employee/claimant.
It is well-settled law that an administrative agency may consider hearsay evidence. Uncontradicted, unrebutted and unimpeached evidence given under oath should not lightly be discarded. The record shows that there is evidence on the record that claimant did in fact make serious complaints to his employer.
The record of the hearing demonstrates that the claimant testified to the harassment and discrimination. (Pages 9 and 10.)
"Q. At any point, during your employment, did you experience harassment or discrimination at your work place?

A. Yes, sir.

Q. And that harassment and discrimination related to what, Mr. Rasco?

A. To uh, my ethnicticity (PHONETIC), my -- and, um, a lot of times it's my intellect.

Q. So your ethnicity, which is --

A. I'm -- I'm Hispanic.

Q. Hispanic; and the harassment came from coworkers?

A. Coworkers and my manager.

Q. And did you report this harassment to any proper administrative employees at CVS?

A. Yes, I did.

Q. And did the harassment interfere with your ability to do your job?

A. Absolutely, yes.
Q. And did the harassment cause you embarrassment and humiliation?

A. Yes.

Q. And did it cause you any physical or emotional pain and suffering?

A. Yes, sir.

Q. Did you seek medical attention for the physical or mental pain and suffering?

A. Yes.

Q. And did the medical treatment include medication?

A. It does now, yes.

Q. And did you leave work in May of 2001 due to the harassing conduct?

A. I -- yes, it was a combination of the harassing conduct and the emotional and physical stress I was under because of it.

Q. And did you -- the leave of absence was approved by CVS; that's correct; right?

A. Yes.

Q. And you didn't return to work because you felt as if they did not respond to your complaints of harassment; is that correct?

A. That's correct."

There was hearsay testimony that the employer, CVS, allegedly terminated one of the employees that was causing the harassment and that it did not end the situation that existed towards the claimant, and the complaints to the Human Resource Department continued.
In this case, the claimant testified to a series of incidents, all unrebutted and uncontradicted which, if believed, would result in discrimination and harassment by his fellow employees.
There is no evidence on the record that the employer responded to these complaints. In fact, the employer did not respond to the hearing before the Referee to rebut these allegations. (Again see letter of withdrawal from hearing. Id.)
In a review of the record, this Court finds that the employer did not file a brief.
Although this Court may not substitute its judgment for that of the Hearing Board on the weight of the evidence on questions of fact, the only weight that this Court can assess is the uncontradicted and unrebutted evidence that was presented by the claimant.
In Harraka, supra, the court held that "public interest demands of [the] court an interpretation sufficiently liberal to permit the benefit of the act to be made available to employees who in good faith voluntarily leave their employment because the conditions thereof are such that continued exposure thereto" would cause or otherwise produce psychological trauma. Id., 200 A.2d at 597-98. There is evidence on the record to establish that the Plaintiff's continued exposure to a hostile work environment would cause the Plaintiff to suffer psychological trauma and, because of the trauma, would leave the claimant no other alternative but to resign and voluntarily leave his employment.
Although the claimant did not present any medical documentation of health issues, the company did acknowledge that the claimant had a medical problem, that being established by the granting of medical leave.
The evidence of harassment and prejudice presented by the claimant stands uncontradicted and unrebutted. The employer had an opportunity to present evidence, and the entire record is devoid of any attempt to do so.
Even the hearsay testimony elicited from the claimant about the employer responding to the complaints by discharging a supervisor did not amount to a satisfactory resolution, as it appears on the record.
The burden of proving good cause rests upon the claimant in accordance with G.L. 28-44-17.
The claimant in this case voluntarily quit his employment. Based upon the entire record, including the fact that the employer withdrew from the hearing on the merits, this Court is of the opinion that there is evidence on the whole record, uncontradicted and unrebutted, that is substantial and relevant to the issue that the employment became unsuitable and that the claimant had no other alternative but to voluntarily leave his employment. The evidence on the record shows that the circumstances were beyond the control of the employee and within the control of the employer.
A review of the entire record demonstrates that there is not substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.
Generally, 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 or clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).
Accordingly, the decision of the Board is hereby reversed.