STATE OF RHODE
ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION
RI TEMPS :
v. : A.A. No. 2007-49:
Director, Department of Labor & Training, and
Dept. of Labor & Training,
Board of Review :
DECISION
CENERINI, J. This matter is before the Court on the appeal of the Plaintiff / Employer, Rhode Island Temps, Inc. (“Rhode Island Temps” or “Employer”), from a final decision of the Board of Review of the Rhode Island Department of Labor and Training (“Board”), issued on January 29, 2007. Jurisdiction is pursuant to G.L. 1956 § 28-44-52.
FACTS AND TRAVEL
Claimant, Yesenia Robbins (“Claimant”), was employed by Rhode Island Temps and was on a continuous assignment to the Rhode Island Department of Health for approximately 10 months prior to September 29, 2006 (Decision of Referee, November 12, 2006 at 1). Claimant signed the Department of Health’s “Internet and Electronic Mail (E-mail) Acceptable Use Policy” (“E-mail Policy”), on November 21, 2005. On September 29, 2006, which was Claimant’s last day of work, Claimant was discharged by the Department of Health because she allegedly violated the E-mail Policy (Decision of Referee at 1). After Claimant was discharged by the Department of Health she contacted Rhode Island Temps for other work (Transcript of Referee Hearing at 6-7). Her superiors at Rhode Island Temps advised her that they had no other work for her (Id. at 7).
Claimant subsequently filed for unemployment benefits with the Rhode Island Department of Labor and Training, under the Rhode Island Employment Security Act, G.L. 1956 §§ 28-42-1 to 28-44-70. Claimant indicated that she was laid off due to lack of work (Director’s Decision, October 25, 2006). The Department of Labor and Training received information from Rhode Island Temps that Claimant was discharged from her job due to misconduct (Id.). On October 25, 2006, the Director of the Department of Labor and Training determined that Claimant was not discharged for any reason under G.L. 1956 § 28-44-18 that would disqualify her from receiving benefits, because sufficient evidence of misconduct was not presented. Id.
The Employer filed a timely appeal of the Director’s decision and a hearing was held before a referee of the Department of Labor and Training on November 22, 2006. At the hearing, the Employer offered a sheet that was faxed to the Employer by a representative of the Department of Health, Denise Cappelli, with a copy of the E-mail Policy. The cover sheet stated that Claimant was discharged from the Department of Health because she violated the Department’s E-mail Policy. In a decision dated November 22, 2006, the referee upheld the director’s decision. The Referee concluded that the Employer did not meet its burden of proof in establishing employee misconduct pursuant to § 28-44-18 because of the lack of any direct testimony from a Department of Health representative and the lack of any other evidence, or examples, of misconduct on the part of Claimant (Decision of Referee at 1).
The Employer timely appealed the Referee’s Decision to the Board of Review and a hearing was held on January 16, 2006. The Board considered all the evidence and testimony presented at the Referee’s hearing as well as additional evidence and testimony. The additional evidence included copies of e-mails sent by Claimant, many of which were alleged to be non-business related and in violation of the E-mail Policy (Transcript of Board Hearing at 6-8). The e-mails were dated from the end of April to July 10 of 2006 (Id. at 7). In a decision dated January 29, 2007, the Board upheld the decision of the Referee. The Board did not make any independent finding of fact or conclusions of law. Rather, the Board incorporated the findings and conclusions adopted by the Referee. One member of the Board offered a dissenting opinion, in which he stated that if “the proper and full evidence had been presented” misconduct on the part of the Claimant would have been shown.
It is from the January 29, 2007 decision of the Board that the Employer filed a timely appeal for judicial relief in this Court.
STANDARD OF REVIEW
Judicial review of the Board’s decision by the District Court is authorized under G.L. 1956 § 28-44-52. The standard of review which the District Court must apply is set forth under G.L. 1956 § 42-35-15 of the Rhode Island Administrative Procedures Act (“A.P.A.”). See Cahoone v. Bd. of Review of Dep’t of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968); Madison v. Bd. of Review of Dep’t of Employment Security, 105 R.I. 69, 249 A.2d 100 (1969). Section 42-35-15(g) provides as follows:
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 revise or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
Applying the A.P.A. standard, the District Court is not permitted to substitute its judgment for that of that of an agency unless its findings are clearly erroneous. Guarino v. Department of Social Welfare, 410 A.2d 425 (R.I. 2000). The Court may not substitute its judgment for that of an agency as to the weight of the evidence on questions of fact. Cahoone, 104 R.I. 503, 246 A.2d 213. Otherwise stated, the law requires that the findings of an agency (the Board in this case) will be upheld even though a reasonable mind might have reached a contrary result. Id. at 215; see also D’Ambra v. Bd. of Review, Dep’t of Employment Security, 517 A.2d 1039 (R.I. 1986).
THE BOARD’S DECISION
The issue before the Court is whether the Board’s decision to uphold the Referee was supported by reliable, probative, and substantial evidence on the record or whether the decision was clearly erroneous. The Employer argues that Claimant’s violation of the E-mail Policy constituted misconduct which disqualifies her from receiving benefits under § 28-44-48. The Employer also contends that the faxed memo from Denise Cappelli of the Department of Health and the copies of some e-mails sent by Claimant constitute legally sufficient evidence of misconduct.
In order to be ineligible for benefits pursuant to § 28-44-18 it must be proved that an employee was discharged for “misconduct”. See § 28-44-18. The statute defines misconduct as follows:
“For the purposes of this section, "misconduct" is 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 that is fair and reasonable to both the employer and the employed worker.” Id.
The Rhode Island Supreme Court has further defined “misconduct” under § 28-
44-18 as follows:
“’Misconduct’ 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 employer's interests or 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.” Turner v. Department of Employment Sec., Bd. of Review, 479 A.2d 740, 741-742 (R.I. 1984) (quoting Boynton Cab v. Neubeck, 237 Wis. 249, 259, 296 N.W.2d 636, 640 (1940); see also Lee v. R.I. Council 94, A.F.S.C.M.E., Local 186, 796 A.2d 1080 (R.I. 2002) (same).
The scope of judicial review by this Court is further limited by G.L. 1956 § 28-
44-54 which provides in pertinent part:
“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.”
A review of the evidence presented to the Referee and to the Board demonstrates that the Board was not clearly erroneous in its decision to uphold
the Referee. The only evidence of misconduct presented before the Referee was a fax cover sheet sent by a representative of the Department of Health claiming that Claimant violated the e-mail policy. The claimant’s testimony before the Referee refuted this allegation (Transcript of Referee Hearing at 14-15). No one from the Department of Health testified at the hearing before the Referee, or before the Board, concerning Claimant’s violation of the E-mail Policy. In addition, no further evidence, or examples, of misconduct were introduced at the hearing before the Referee regarding Claimant’s discharge. Both the Referee and the Board determined that the evidence offered at the Hearing before the Referee was insufficient to prove misconduct under § 22-44-18.
The Employer contends that this Court previously considered an e-mail statement by an employer to be sufficient evidence of misconduct under § 28-44-18, in Rhode Island Temps v. Department of Labor and Training, Board of Review, AA-2005-47 (Bucci, J). This Court initially notes that the findings of the Court in the 2005 Rhode Island Temps case are not binding on this Court. Regardless, the facts in Rhode Island Temps (2005), are dissimilar to the facts in the case at bar. In Rhode Island Temps (2005), the Court cited an e-mail sent to the employer by a temporary employer which thoroughly detailed multiple incidents of misconduct. The fax sent by the Department of Health in the present case did not contain such a detailed description of multiple incidents of misconduct. In addition, the Court in Rhode Island Temps (2005) noted “overwhelming evidence of recurring problems” and “uncontroverted testimony” of misconduct. Id. at 7-8. This indicates that other evidence and testimony of misconduct was considered in Rhode Island Temps (2005). In addition, all of the evidence presented by the Employer in the case at bar was contested by the Claimant. Therefore, the Employer’s reliance on Rhode Island Temps (2005) is misplaced.
At the hearing before the Board the Employer offered additional evidence of Claimant’s misconduct in the form of copies of e-mails sent by Claimant while she was working at the Department of Health. These copies contained only e-mails sent by Claimant during a partial period of her employment at the Department of Health. Notably, the latest e-mail was dated July 10, more than two months prior to Claimant’s discharge for violating the E-mail Policy. In addition, because the e-mail copies only included e-mails sent by Claimant, there was some confusion as to whether all the e-mails were personal in nature or business related (Transcript of Board Hearing at 20-23). Furthermore, the Claimant testified that any personal e-mails that she sent were sent during her break time, which she believed was acceptable under the E-mail Policy (Transcript of Board Hearing at 25-26). Claimant further testified that she was never warned against sending e-mails during her personal time and that doing such was common practice among other employees of the Department of Health (Id.). The record of this matter does not indicate any warnings given to the claimant that her conduct would be “… erosive of (her) employment status, Cardoza v. Board of Review, 669 A.2d 1165, 1166 (1996).
There was also uncontroverted testimony before the Referee indicating that the Claimant would have been retained as an employee of Rhode Island Temps if any work was available for her (Transcript of Referee Hearing at 25-26). Counsel for Claimant referenced this testimony at the hearing before the Board (Transcript of Board Hearing at 25-26). This testimony dispels any notion that Claimant was discharged from the Employer for any misconduct that may, or may not, have occurred while she was assigned to the Department of Health.
The Board considered all the evidence and testimony before it on January 16, 2005, and upheld the Referee, incorporating the Referee’s findings of fact in its decision. This Court will not substitute its judgment for that of the Board on questions of fact. See Cahoone, 104 R.I. 503, 246 A.2d 213. In addition, this Court can only reverse the Board’s decision if it is clearly erroneous in light of the substantial evidence on the record. See § 42-35-15(g). Upon review of all the evidence and the Board’s decision, the Court determines that the decision of the Board was not clearly erroneous.
CONCLUSION