STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

DEROBBIO, C.J. This matter is before the Court on the complaint of John M. Smith, 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 upheld the finding of the Referee that the claimant, John M. Smith was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant had worked for this employer for approximately fourteen months. The claimant's last day of work was November 7, 2000. The claimant filed his new claim for Employment Security benefits on November 14, 2000. In a decision dated November 28, 2000, the Director determined the claimant was discharged under disqualifying circumstances, as provided for under Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of this decision. A hearing on this appeal was held on January 3, 2001, at which the claimant appeared and provided testimony. A representative of the employer, the General Manager, also appeared and provided testimony.

The Referee held the claimant, John M. Smith, was not entitled to receive unemployment security benefits, based on the determination that claimant was discharged for misconduct in connection with his work and was thus disqualified pursuant to Rhode Island General Laws § 28-44-18.

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 a proper adjudication of the facts, and upheld the Referee's decision. Thereafter, John M. Smith 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 discharged for misconduct in connection with his employment was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

The Board of Review adopted the following findings of fact of the Referee:

"The claimant had worked as a cashier for a local parking lot. The claimant had worked for this employer for approximately fourteen months last on November 7, 2000. The claimant was terminated for poor customer service resulting in customer complaints. The claimant had received five warnings to this effect from April 6, 2000 through his separation date of November 7, 2000. In addition, the claimant received a three-day suspension, October 24-26, 2000, concerning this issue in."

The Board of Review adopted the following conclusions of the Referee:

"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 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.

In the case of Turner vs. Department of Employment and Training, Board of Review, 479 A 2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a general definition of the term, "misconduct", as enunciated in Boynton Cab Co. vs. Newbeck, [sic] 237 Wis. 249, 296 N.W. 636 (1941):

"'[M]isconduct' . . . is 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 care-

lessness 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

interest 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."

In all cases of discharge, the burden of proof to show misconduct in connection with the work on the part of the claimant rests solely with the employer. In the instant case, the claimant had worked for this employer for approximately fourteen months last on November 7, 2000. The claimant was terminated after receiving a three-day suspension concerning poor customer service resulting in customer complaints made against him. In addition, the claimant had received other written warnings concerning this issue. Based upon the credible evidence presented by both sides at this haring, [sic] I find that the claimant’s separation is considered to be under disqualifying circumstances. The employer has met their burden in this instance. They have shown that the claimant’s actions, which continued after written warnings were issued to the claimant, were of such in nature as to constitute misconduct in connection with the work. These continued actions on the part of the claimant concerning customer service lead directly to his separation on November 7, 2000. Therefore, the claimant cannot be allowed benefits on this issue."

The Court reviewed the entire record. After an examination and review thereof, the Court finds that the record contains facts relating to the conduct of the claimant during the course of employment with his employer. The record contains evidence of five warnings of poor customer relations characterized as "rudeness" and a suspension of three (3) days for a breach of conduct regarding customer complaints.

This is a factual issue and the Court will not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. § 42-35-15(g)(5)(6). Credibility of the witnesses is a determination solely for the trier of fact. From a review of the evidence, the Board of Review could make a conclusion that the conduct of the claimant rises to the level of misconduct as defined in 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.