STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

RANDOL RODRIGUEZ                            

V. :  A.A. 03-112

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW 

D E C I S I O N

HIGGINS, J.  This matter is before the Court on the complaint of Randol Rodriguez, 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, Randol Rodriguez was entitled to receive employment security benefits.

1.         TRAVEL OF THE CASE:

            The travel of the case is as follows.  The claimant was employed for approximately one year.  His last day of work was April 22, 2003.  On May 1, 2003 the claimant filed a claim for Employment Security benefits.

On May 16, 2003 the Director determined that the claimant had been terminated under disqualifying circumstances under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act and benefits were denied.  On May 21, 2003 the claimant filed an appeal.

A hearing was held before a Referee on June 12, 2003, at which time the claimant, an interpreter for the claimant, two employer representatives and the employer’s counsel were present.  On June 17, 2003 the Referee reversed the Director’s decision ruling that the claimant’s termination was under non-disqualifying circumstances because the claimant’s actions did not constitute misconduct.  On June 23, 2003 the employer appealed to the Board of Review.

The Referee held the claimant, Randol Rodriguez was entitled to receive unemployment security benefits.  The claimant was discharged but not for reasons of misconduct in connection with the work.

            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 not a proper adjudication of the facts, that the claimant’s conduct towards the director of human resources was insubordinate and in violation of the employer’s policy prohibiting sexual harassment, and reversed the Referee's decision.  Thereafter, the claimant 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 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:

“2.        FINDINGS OF FACT:

The claimant worked as a clothes separator.  On April 22, 2003 the employer’s director of human resources directed an employee to escort a non-employee from the work area.  The employer has a policy that prohibits non-employees from being at the work area.  The employee escorted the non-employee from the work area.

The claimant met the employee as the latter began his return to the work site.  On their way to the work site, the employee and the claimant passed by the director of human resources.  As they walked by, the claimant grabbed his genitals and made a gesture of a sexual nature.  The gesture was made in the presence and in the view of the human resource director.  The employer has a policy prohibiting sexual harassment.  The employer suspended and later terminated the claimant as a result of the gesture.”

      The Board of Review made the following conclusions:

“3.        CONCLUSION:

The issue in this case is whether or not the claimant was discharged from the job under disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act.

Section 28-44-18 of the Act provides, in part, as follows:

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 record of proceedings before the Referee, the official file and the evidence taken before the Board established that the claimant’s conduct towards the director of human resources was insubordinate and in violation of the employer’s policy prohibiting sexual harassment.

Before the Board the claimant demonstrated the gesture, he asserts, he made before the director of human resource.  The demonstrated gesture consisted of the pulling up of his trousers; the claimant wore loose fitting trousers.  After viewing the gesture, and the claimant’s testimony before the Referee, it is determined that the claimant’s version is not credible.

Before the Referee (Page 49, lines 9 through 13) the claimant and the employee were carrying on a conversation in a joking manner.  The claimant testified that he held his hands up (Page 50, line 8) when he approached the director of human resources.  Later on his testimony is that he was pulling up his trousers.  Considering all the circumstances, including an employee who had been reprimanded, joking conversation and the claimant’s conflict testimony about his gesture or lack of a gesture, the Board concludes that the claimant’s actions were insubordinate and in violation of the employer’s policy against sexual harassment.  The claimant’s actions on April 22, 2003 constitute misconduct.”

            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.