STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
ELBA
REYES
V.
: A.A. 03-140
DEPARTMENT
OF LABOR AND TRAINING,
BOARD OF REVIEW :
D
E C I S I O N
The travel of the case is as follows.
The claimant was employed ten months by the employer.
Her last date of work was September 1, 2003.
She filed a claim for Employment Security benefits on September 3, 2003.
In
a Director’s decision dated September 19, 2003 it was determined the claimant
was discharged under disqualifying circumstances under the provisions of Section
28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of this decision on
September 25, 2003.
A
hearing was held before a Referee on October 21, 2003, at which time the
claimant appeared and testified. The employer, who was properly noticed of the
hearing, failed to appear. On
October 22, 2003 the Referee issued a decision in which he reversed the
determination of the Director. The
employer appealed to the Board of Review.
A
hearing was held before the Chairman of the Board of Review on November 20,
2003. Three representatives of the
employer appeared and testified at the Board hearing. The Board attempted to telephone the claimant to participate
in the Board hearing but the telephone numbers given by the claimant would not
connect.
The
Board determined that the Referee’s decision was not a proper adjudication of
the facts, and reversed the Referee's decision. Thereafter, Elba Reyes 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 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 made the
following findings of fact:
“The
claimant had been employed for approximately ten months as a food server.
Her last day of work was September 1, 2003.
On that day the claimant became upset after being given a direction by
her supervisor.
She
was insubordinate to her supervisor. She
physically struck her supervisor. She
threatened a co-worker and threw scalding coffee on a co-worker.
The claimant was terminated after those incidents.
The claimant had previously been given verbal and written warnings
concerning her conduct.”
The Board of Review made the following conclusions:
“The
issue involved is whether or not the claimant was discharged from this job under
disqualifying circumstances within the provisions of Section 28-44-18 of the
Rhode Island Employment Security Act.
An
individual who is discharged for reasons of proven misconduct in connection with
his work must be held to have been terminated under disqualifying circumstances
under the provisions of Section 28-44-18.
The
claimant [sic] insubordination and physical and verbal abuse of her supervisor
and a co-worker clearly constitute misconduct within the meaning of Section
28-44-18.”
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.
Notice
was given to the appellant/claimant, Elba Reyes, for a conference to be held on
February 3, 2004 at 8:30 a.m. The
attorney for the Board of Review and the employer appeared.
The claimant/appellant did not appear.
There
is evidence on the record that the Board of Review, after hearing, could
conclude that the conduct of the claimant rises to the level of misconduct as
defined by Turner v. The Department of Employment
Security.
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.