STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

CRISTOBAL RIVAS :

V.  A.A. 02-05

DEROBBIO, C.J. This matter is before the Court on the complaint of Cristobal Rivas, 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, Cristobal Rivas was entitled to receive employment security benefits.

The travel of the case is as follows. The claimant's last day of work was September 12, 2001. He filed a claim for benefits on September 14, 2001.

On November 1, 2001 the Director determined that the claimant was discharged under disqualifying circumstances as set forth under Section 28-44-18 of the Rhode Island Employment Security Act. On November 1, 2001 the claimant filed a timely appeal of the decision.

A hearing was held before a Referee on November 20, 2001 at which time the claimant, an interpreter assigned by the Board of Review and two employer representatives were present. On November 30, 2001 the Referee reversed the Director, finding from the testimony before him, that the employer had failed to prove misconduct. The Referee allowed benefits. On December 7, 2001 the employer filed an appeal with the Board of Review.

A hearing was held before the Chairman of the Board of Review on December 19, 2001. The claimant, his interpreter and an interpreter provided by the Board were present. The employer’s director, maintenance supervisor and site supervisor were present and provided testimony and argument.

The Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee’s decision. Thereafter, Cristobal Rivas 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 under disqualifying circumstances 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 was employed as a maintenance person by the employer, a construction business. On September 12, 2001 the employer was repairing and replacing roofing. At approximately 2:30 pm the site supervisor instructed the claimant to assist in picking up the removed roofing. The claimant ignored the instructions. The site supervisor repeated the instructions and the claimant refused to comply. As a result of his actions, the claimant was later suspended. On September 12, 2001 the employer was suspended for failing to follow the instructions given by his supervisor at a job site. Later on September 12, 2001 the claimant was advised that he was suspended the following day, September 13, 2001, and that he was to report to work on September 14, 2001. On September 13, 2001 the claimant went to the job site and proceeded to interfere with the work and to make disparaging remarks about the employer."

The Board of Review made the following conclusions:

"In order to impose a disqualification under the provisions of Section 28-44-18, there must be proof that the person who was discharged committed an act of misconduct in connection with the work.

As the Referee has set out in his decision, the burden of proof is on the employer to prove misconduct. Also, cited by the Referee in his decision, is the definition of misconduct viz. that the claimant’s actions must be intentional.

Based on the official record and the testimony before the Referee and Board, it is determined that the claimant’s conduct constitutes misconduct. Unlike the hearing before the Referee, the employer’s site supervisor testified. His testimony is that the claimant was instructed to assist in removing the old roofing material from entrances and to the front of the premises. Despite repeated requests, the claimant did not comply.

The site supervisor’s testimony is determined to be credible and the claimant’s testimony not credible. The claimant's position that he was suspended because he would not stay to work overtime is not supported by the record testimony before the Board. The claimant was requested to perform the work on at least two occasions, and he refused or ignored the requests with the knowledge that certain workers would be required to work overtime. The claimant’s actions were deliberate and intentional.

Under Section 28-44-18 of the Act, the burden of proof is on the employer to prove misconduct. Also, cited by the Referee, in his decision, is the definition in Section 28-44-18 of Act, which requires the employer to establish deliberate and intentional misconduct.

The testimony before Board clearly established that the claimant came onto the job site on September 13, 2001. The claimant was aware that he had been suspended and was to remain away from the job site. However, the credible testimony before the Board showed that the claimant went to the job site and created a disturbance. The job site is a short distance from the claimant’s residence. His presence at the job site was deliberate and intentional and it was taken to harm the employer’s interest. The claimant is not eligible for benefits."

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 efficiency, 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.

A review of the record demonstrates that there is substantial, probative and reliable evidence that the claimant was instructed by his supervisor to assist in picking up removed roofing; that the claimant ignored such instructions; that claimant was suspended for such actions.

Further, there is evidence to demonstrate that the day after suspension the claimant went on the job site and proceeded to interfere with the work.

There is substantial, probative and reliable evidence to demonstrate and substantiate that the conduct of the claimant was deliberate and intentional and such conduct rises to that level of misconduct as defined in Turner v. 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.