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

SANDRA SANTANA-LEVY :

V. : A.A. 04-106


DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

McLOUGHLIN, J.

FACTS/TRAVEL

This action before the District Court has been brought by Sandra Santana-Levy (Plaintiff/Appellant), appealing a decision by the Board of Review for the Department of Labor and Training (Board of Review). The decision of the Board of Review upheld a denial of the Appellant's request for unemployment compensation benefits. This case is properly before the District Court pursuant to G.L. 1956 § 42-35-15 of the Administrative Procedures Act.

The appellant was employed by Plan USA Child Reach (Employer) for a period of nine months; her employment terminated by discharge on May 21, 2004. The Director of the Department of Employment and Training (Director) determined that the Appellant had been discharged under the disqualifying circumstances proscribed in G.L. 1956 § 28-44-18, and thus was not entitled to employment security benefits. The Appellant filed a timely appeal, and a hearing was held before the Appeal Tribunal (Referee) on August 2, 2004. At that hearing the Referee affirming the decision of the Director, held:
"[A]n individual who is discharged for reason 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 which 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." (Decision of Referee, 2).

The Referee held that the evidence presented established that as of May 19, 2004 the Appellant had been informed, through a written warning, of the Employer's attendance expectations and that if such expectations were not met, the Appellant's employment was subject to termination. Both the Employer and the Appellant signed said warning. The Appellant was subsequently late on May 21, 2004, and such was regarded as a "willful disregard of the Employer's interests, policies and procedures." (Decision of Referee, 2). The Referee affirmed the Director's decision holding the Appellant was presently not entitled to employment security benefits for the week ending May 22, 2004. (Decision of Referee, 3).

The Appellant filed an appeal of the Decision of the Referee to the Board of Review on August 11, 2004. In a decision dated September 14, 2004, the Board of Review upheld Decision of the Referee stating:
"[T]hat the findings of the Appeal Tribunal on the factual issues which are hereby incorporated by reference constitute a proper adjudication of the facts; the conclusions of the Appeal Tribunal as to the applicable law thereto are correct and proper and such findings and conclusions are hereby affirmed." (Decision of Board of Review, September 14, 2004).

Following the Board of Review's decision, the Appellant timely filed this Administrative Appeal in District Court.
The Appellant was discharged after she arrived late to work on May 21, 2004, after having received previous verbal warnings and a written warning issued on May 19, 2004. The previous warnings informed the Appellant that she was to report to work between the hours of 8:00 a.m. and 9:30 a.m., and the written warning informed her that failure to do so had the potential to jeopardize her employment. ("Employer 1" Exhibit.) The written warning of May 19th documented previous undocumented verbal discussions between the Appellant and Amy Pizzuti, her supervisor. The Appellant allegedly repeatedly reported to work late, and remained in the building beyond the allotted hours, which became a serious safety concern for the Employer. There were also allegations in the written warning that the Appellant was disruptive within the confines of the work environment, exceeded her responsibilities by involving herself in the work of other departments within the company, and failed to complete her assignments within the required timeframe. The written warning included immediate actions to be taken by the Appellant, and stated "if further incidences of unacceptable behavior or performance occur, further action will be taken, up to and including termination." (Employer 1 Exhibit.) The Appellant arrived late on May 21st because she reported she was obsessed with a blemish that she was attempting to cover, and this "obsession," as well as her other difficulties with the work environment, were due to her medical conditions - Attention Deficit Disorder and Obsessive Compulsive Disorder. Tr. at 51-52. After the Appellant arrived late to work on May 21, 2004, she was discharged from her employment, and thus this action ensued.
The Appellant argues that she is entitled to employment security benefits because her alleged deficiencies did not rise to the level of "misconduct" as defined in § 28-44-18. Additionally, the Appellant contends that evidence of her medical condition, contributing to her difficulties within the Plan USA work environment, were erroneously disregarded by the Referee and the Board of Review. ("Note" Exhibit.) Lastly, the Appellant argues that the Employer's "progressive discipline policy" was not followed and thus precluded a finding that the Appellant was discharged for misconduct. ("Claimant 1" Exhibit.)
In support of her argument, the Appellant contends that her deficiencies do not rise to the level of misconduct as described by the Rhode Island Supreme Court in Turner v. Department of Employment Security, Board of Review, 479 A.2d 740 (R.I. 1984). The Turner Court, quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), defined misconduct, within the meaning of § 28-44-18, as behavior:
"* * * limited to conduct evincing such willful 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." Id. at 259-60, 296 N.W. at 640.

The Appellant argues that her conduct was not classified as "willful, wanton or manifesting wrongful or evil intent," and therefore the deficiencies in her employment and her subsequent discharge cannot be classified as misconduct under the statute.
A dissenting member of the Board of Review stated, "[t]he uncontradicted evidence is that the claimant was last late due to a medical condition. Therefore, this case cannot be one of willful misconduct and benefits should be granted." (Decision of Referee, 2). The Appellant attempted to present, at the August 2nd hearing, a Doctor's note, signed by Dr. Leon, diagnosing her with Bipolar Disorder and Attention Deficit Disorder; however, the note was from her then treating physician, not her treating physician at the time of the discharge. ("Note 1" Exhibit.) The Referee took judicial notice of the note's existence, and stated that he would "find it to be an after-the-fact." Tr. at 55. The Appellant argues that these medical problems should have been enough evidence "to rule out willful misconduct," and although Dr. Leon had not been her treating physician, the Rules of Evidence would allow him to have relied on the medical records transferred to him from her prior physician.
Lastly, the Appellant argues that the Employer has a "progressive discipline policy" in effect, and that its failure to comply with the procedures outlined in that policy should have precluded the Appellant from being discharged for misconduct as defined in § 28-44-18. (See "Claimant 1" Exhibit.)

The Employer argues that pursuant to § 42-35-25(g), the District Court may not modify or reverse the agency's decision unless "substantial rights of the [Petitioner] has 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. See, Bunch v. Board of Review, Department of Labor and Training, 690 A.2d 335, 337 (R.I. 1997). Therefore, unless such a violation was suffered by the Petitioner Appellant in this case, the Employer argues that this Court is precluded from modifying or reversing the agency's decision.

The Employer argues that the Board of Review properly affirmed the Referee's decision that the Appellant engaged in disqualifying misconduct. The Referee in his August 4th decision, clearly stated, "[L]ateness is a factor under the control of the claimant. The claimant's action of being late on May 21, 2004 does constitute a willful disregard of the employer's interests, policies and procedures." (Decision of Referee, 2). Therefore, the Employer contends that in his findings, the Referee provided sufficient support based upon the statutory definition, the Employer's warnings - both verbal and written - and the actions of the Appellant, to support his decision.

The Employer refutes the Appellant's argument in compliance with the progressive policy prohibits the Employer from terminating her under disqualifying circumstances. The Employer argues that employment is based upon at at-will agreement, and the discipline policy, while providing guidelines to follow, is not a contractual agreement or a guarantee of any continued employment. The fact that the verbal warnings were not memorialized in a memorandum until May 19th should not have precluded the Appellant's termination or the Board of Review's affirming such a decision. Therefore, neither is this Court precluded from upholding said decision.

Additionally, the Referee's judicial notice of Dr. Leon's medical note does not affect the validity of his decision. As the Referee, he took judicial notice and gave the note the weight he deemed appropriate in making his decision. Such a determination does not provide this Court with grounds for overturning such a decision under the standard of review in § 42-35-15(g).

ANALYSIS

Under § 28-44-18 "'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 such violation is not shown to be as a result of the employee's incompetence." The Referee, and subsequently the Board of Review in upholding the decision of the Referee, based their decision on evidence provided by the Employer demonstrating such misconduct on the part of the Appellant. The Appellant did not present evidence that the alleged violations were a result of the employee's incompetence as stated in the statute. The only evidence provided was Dr. Leon's note stating medical conditions that the Appellant had been diagnosed with; however, he was not the treating physician at the time of her discharge.

The Appellant, cites to Turner, supra, in which the Rhode Island Supreme Court adopted a definition expanding the statutory definition of "misconduct." In the Turner decision, the expanded definition adopted by Mr. Justice Kelleher, states that "mere inefficiency, unsatisfactory conduct, failure in good performance as a 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." Id. at 741-42. However, the Board of Review's decision upholding the findings of the Appeal Tribunal, that the Appellants' repeated violations of employer policies were appropriately labeled as misconduct, does not violate this above cited exception. Neither the Referee nor Board of Review found that the repeated violations were a result of inefficiency or unsatisfactory conduct, but rather that such were instances of deliberate disregard for the employer's interests and policies. While prior District Court cases have not found isolated instances of lateness as misconduct, a pattern of misconduct has been deemed misconduct, and such a denial of benefits was affirmed. See, Moreno v. Department of Employment and Training, A.A. No. 95-175 (Dist.Ct. 1/19/96)(DeRobbio, C.J.)(Claimant found entitled and employer appealed; Affirmed, where claimant was late one day - the day after employer moved start time back - due to child care problem); See also, Heroux v. Department of Employment and Training, A.A. No. 94-220, (Dist.Ct. 1/30/95)(DeRobbio, C.J.)(Pattern of lateness constitutes misconduct despite alleged medical condition; denial of benefits affirmed); Cotoia v. Department of Employment Security, A.A. No. 88-44, (Dist.Ct. 2/7/90)(Moore, J.)(Claimant found not entitled to benefits; Affirmed, where claimant's tardiness - 1 ½ hours - after prior warnings constituted misconduct). Nowhere in the hearing transcript or in the memorandums of law presented to this Court was evidence presented that an agreement had been reached between the Employer and the Appellant, permitting flexible hours of reporting to work or accommodations to the Appellant's assigned role within the company. Therefore, after verbal warnings and a written warning, a substantiated finding was made by the Director, and upheld by the Referee and the Board of Review, to hold that further violations by the Appellant evidenced a disregard for the Employer's "interests and policies."

The Appellant also argues that failure on the part of the Employer to strictly adhere to the progressive discipline policy should have precluded her discharge based upon misconduct. While the previous verbal conversations between the Appellant and her supervisor, Ms. Pizzuti, were not memorialized in a signed memorandum, there has been no refutation as to the existence of such conversations. Therefore, the Appellant was made aware of the Employer's discontent and desire for the Appellant to change her behavior with regard to her adherence to the Employer's policies and her interactions within the work environment. It is not evidenced by the language used in the progressive policy that adherence to said policy is in fact mandated, but rather the policy appears to be used a model to maintain uniformity in discipline and communication between the Employer and the employed.

Thus, it is decided that the Appellant's appeal is denied and the decision of the Board of Review is upheld.