STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

DEROBBIO, C.J. This matter is before the Court on the complaint of Revens, Revens & St. Pierre, 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 reversed the finding of the Referee that the claimant, Laurie A. Belleville was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed three years. Her last date of work was November 16, 2001. On March 15, 2002, the claimant filed a claim for Employment Security benefits.

On April 17, 2002, the Director determined that the claimant left her job without good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act.  On April 24, 2002 the claimant appealed the Director’s decision.

A hearing was held before a Referee on May 16, 2002. The claimant, her representative, an employer representative and a witness for the employer testified and provided argument. On May 21, 2002 the Referee affirmed the Director concluding that the claimant had left without good cause. On May 30, 2002 the claimant appealed the Referee’s decision to the Board of Review.

A hearing was held before the full Board of Review on July 3, 2002. The claimant, a witness for the claimant, claimant’s representative and an employer representative were present.

The Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee’s decision. Thereafter, The Law Offices of Revens, Revens & St. Pierre 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 not a proper adjudication of the facts and that the claimant left her employment with 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 made the following findings of fact:

"The findings of fact contained in the decision of Referee are affirmed and incorporated into this decision as if fully set forth herein; provided, however, the Board makes the following additional findings, which, if in conflict with the Referee’s findings, shall be controlling.

 

In her employment the claimant reported to the senior partner. During the claimant’s absence from work, because of an automobile injury, the claimant and the senior partner would have telephone discussions regarding her return to work. When the claimant returned to work on March 4, 2002 at 8:30am, the senior partner was not present."

 

The findings of fact made by the Referee are as follows:

"The claimant was employed three years as a legal secretary through November 16, 2001. She was involved in an automobile accident on November 17, 2001 and was unable to work. She informed the employer of her inability to work and kept him updated on her medical progress by submitting doctor’s notes. She was cleared to return to work as of March 4, 2002. She reported to the office on March 4, 2002. She did not go into the office but instead looked in the window. When she looked in the window, she saw another person was sitting at her desk. She did not know who this person was or why this person was sitting at her desk. She decided not to go into the office to seek an explanation or to report for work. She went home and attempted to reach the employer by phone. She left messages for the employer to call her but never asked to speak to anyone else concerning her employment status. She was considered to have left her job when she failed to report for work on March 4, 2002."

 

The Board of Review made the following conclusions:

"While the Referee determined that the claimant left work voluntarily without good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act, the Board finds that she did not leave voluntarily. She was laid off due to a lack of work.

 

At the time the claimant arrived at work, she discovered another employee occupying her desk and work area. Her employer, the senior partner, was not present. The claimant’s testimony is that she did not want to enter the work area until she had talked to her employer, the senior partner. The senior partner did not arrive to work before 10:00 am because of other business commitments. Rather than wait in the office, the claimant returned home and placed two calls to the employer. The employer did not return the calls, despite his awareness that the claimant was returning to work.

 

The facts of this claim establish a lay off due to a lack of work. The employer was aware of the date the claimant was returning to work from a medical leave. The employer had arranged to have another employee sitting at the claimant’s desk. Rather than entering the office and waiting for over an hour to discuss the matter with the employer, the claimant chose to address the matter privately and confidentially with her employer.

 

The claimant called the employer two times. The employer did not return calls. We conclude that the employer’s conduct demonstrates an intention to lay the claimant off. The claimant, therefore, is entitled to Employment Security benefits."

 

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 voluntarily 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."

In this case, in order for the claimant to show good cause for leaving her employment, she must demonstrate and prove that the job became unsuitable or in the alternative show that she was placed in a situation which left her no other reasonable alternative but to leave her job.

The facts in evidence show that the claimant was absent from work due to medical injuries suffered in an automobile accident. She had been employed for three (3) years. Her last day of work was on November 16, 2001. She was cleared to return to work on March 4, 2002.

The evidence is uncontradicted that she reported to the office of the employer on March 4, 2002. She did not go into the office. She looked in the window and saw another secretary sitting at a desk previously assigned to her. She left, not knowing who was sitting at her desk; nor did she attempt to receive any explanation.

The record is clear that there is evidence that she called the employer twice that date and there was no return calls from the employer.

The Court, in reviewing the facts, finds that her failure to speak to anyone regarding her employment status is leaving her employment without good cause, and does not support an inference that a person is laid off from employment or discharged based upon the facts presented, that are uncontradicted in this case.

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.

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 or 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.