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

Ronnie Suazo

Vs

A.A. 05-50 Department of Labor and Training, Board of Review

DECISION

Gonnella, J.  This matter is before the Court on the complaint of  Ronnie Suazo, filed pursuant to RIGL § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Department of Labor and Training Board of Review (Board of Review), upholding the findings and conclusions of the Referee that claimant was not entitled to receive employment security benefits and further that claimant was overpaid employment security benefits totaling $4,158.00 which were subject to recovery pursuant to R.I.G.L. § 28-42-68. The Board of Review, in a two to one decision, simply adopted the findings of fact and application of law issued by the Referee.  For the reasons set forth below, this Court reverses the Board’s decision to deny benefits and to order restitution.

The travel of the case is as follows:  The Claimant was employed for approximately six months with a temporary employment agency named Pro Staff. Pro Staff had placed Claimant with a company named American Bio Physics Corporation. Claimant’s last day of work with American Bio Physics Corporation was September 24, 2004. Claimant filed a claim for Employment Security Benefits on September 24, 2004. Thereafter, in a decision dated January 5, 2005, the Director determined that claimant had left his job voluntarily and without good cause within the meaning of R.I.G.L § 28-44-17. The Director further found  that claimant was paid some $4,158.00 during a period of disqualification and these monies were subject to repayment to the Department of Labor and Training pursuant to R.I.G.L. § 28-42-68. A timely appeal was filed by Claimant to the Referee who issued a decision affirming the Director that Claimant had left his employment with Pro Staff voluntarily and without good cause and was, therefore, not entitled to benefits under the Act and that Claimant was also subject to pay restitution to the Department of Labor and Training for the benefits received. Claimant filed a timely appeal of that decision to the Board of Review who issued its decision on March 24, 2005, affirming the Referee in all respects. Claimant thereafter filed a timely appeal to this court seeking a review of the Board’s decision.  Jurisdiction for review of the decisions of the Board of Review 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.

1. 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).
2. 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.”  RIGL § 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, 200, 200 A.2d 595, 597 (1964).

1.           The Board of Review adopted the following findings of fact of the Referee:
2.           “The claimant was employed by a temporary staffing agency and was laid off on September 24, 2004 from the position that he was assigned at the American Bio Physics Corporation. The claimant knew and acknowledged in writing, that he was to contact the employer when he became available for a new assignment within one day of the completion of any assignment and twice weekly when he was not working. The Claimant had worked approximately six months as a temporary worker through the employer employment agency at the American Bio Physics Corporation. The Claimant was advised by the on-site personnel director that his work assignment was over and that he would be reassigned. The Claimant called the employer’s representative at the American Bio Physics building and left a message. The Claimant further testified that he called the employer’s office directly approximately one week after leaving the American Bio Physics plant. The Claimant went to the Pro Staff facility on October 1, 2004, to pick up his check, and met with an employer representative.”
3.           The issue to be decided by this appeal is whether there are sufficient facts in the record to conclude that the claimant left work voluntarily and without good cause? An individual who leaves work voluntarily must establish good cause for taking that action or else be subject to disqualification under the provisions of Section 28-44-17. Kane v. Woman’s & Infants Hospital of R.I., 592 A.2d 137 (R.I. 1991).

The Rhode Island Supreme Court has declared that whether an employee leaves voluntarily and with good cause is a mixed question of law and fact. D’Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039 (R.I. 1986). As such, if the facts as found by the Board could lead to more than one conclusion and the Board’s decision was not clearly erroneous in resolving the mixed question of law and fact, then this Court is without authority to overrule the Board’s decision. Id.  In order to establish good cause for leaving one’s job, the claimant must show that the work had become unsuitable or that he was faced with such a situation that left him no reasonable alternative but to terminate his employment. Powell v. Department of Employment Security, Board of Review, 477 A. 2d 93 (R.I. 1984).  The burden of proof in establishing good cause rests solely on the claimant.
          At the hearing, Claimant testified along with a representative of Pro Staff, Carol Partridge, who was the operations manager on site at American Bio Physics Corporation. At the hearing there was no dispute between the parties that on September 24, 2004 Claimant was notified that he was being laid off and his job assignment was over at American Bio Physics Corporation. Claimant testified that on that day a representative of American Bio Physics Corporation suggested that Claimant apply for unemployment compensation. Carol Partridge also testified that she was informed that Claimant’s last day at American Bio Physics Corporation was September 24, 2004. When asked by the Referee whether Claimant had called Pro Staff after being laid off, Claimant testified:
          REF:  Did you talk, did you make a call to anyone at Pro Staff?
          CLT:  Yes, I did.
          REF:  Okay.
          CLT:  I have Actually, um, I phone bill here.
          REF:  Okay. Good.
          CLT:  After I got, this was a few days after, when I was calling, looking for work. There’s a two, some of them were made on my actual home phone, uh, so they don’t put that in your, local numbers don’t come out. But on your cell phone, they do. So there’s two there, at least two phone calls that I made to Carol at Pro Staff. And I never received any information. I was never –
          At that point in the hearing Claimant produced phone records from his cell phone showing calls made on two occasions, one to the Pro Staff project manager Carol Partridge at American Bio Physics Corporation, at 884-3500, on October 1, 2004, and one to American Bio Physics on October 5, 2004, at 877-699-8727, which is a toll free telephone number of American Bio Physics Corporation. Claimant testified that on each occasion he left a message for Carol Partridge and never received a return call.
          Claimant also testified that one week after being laid off, on October 1, 2004, he went to Pro Staff to pick up his last check and met with Carol Partridge as she was leaving and she asked Claimant if he would mail in his American Bio Physics Corporation badge and to call her for further work. Claimant testified that on the following Monday he did call and left her a message.
          Carol Partridge testified that she remembers bumping into Claimant as she was leaving the building on October 1, 2004, and that he was looking for more work, but she has no note that he called in on October 1, 2004 and left a message.  Ms Partridge explained that the number which appears on Claimant’s cell phone bill for October 1, 2004, 884-3500, is the main line into American Bio Physics Corporation and not her direct line into her office. She, therefore could not dispute that he made the call, but she claimed she never received a message from Claimant on that day.
          The Referee and the Board of Review, in denying Claimant benefits, relied heavily upon an exhibit marked as “Employer’s 1” which contained the acknowledgement that was signed by the Claimant. That acknowledgement reads in relevant part:
“I also understand that I am required to contact Pro Staff when I become available for an assignment, within one day of the completion of an assignment and twice weekly when I am not working. I understand if I fail to contact Pro Staff, I will be considered to have voluntarily resigned, which may impact my eligibility for unemployment benefits.”
(emphasis added).
          The issue on appeal is whether, in light of the liberal interpretation to be given to the Employment Security Act, the Board of Review’s decision to deny benefits under these circumstances was clearly erroneous. This court believes it was.
          Claimant complied with the spirit, if not the letter of the terms of the acknowledgement that he signed with Pro Staff. Not only did he testify that he made calls to Pro Staff from his home phone but he also produced cell phone records that on two occasions after being laid off he called the American Bio Physics Corporation’s plant and left messages for Carol Partridge of Pro Staff to return his call. Additionally, Carol Partridge testified that on September 24, 2004, she was made aware that Claimant was being laid off and would be available for a new assignment, and on October 1, 2004, she had a brief encounter with Claimant at the Pro Staff headquarters and Claimant told her then he was looking for work.
 The purpose of the terms of the acknowledgement is to keep Pro Staff appraised  of when an assignment has ended and to keep in touch with Pro Staff in case a further assignment becomes available. Claimant complied with his obligations to Pro Staff for both of these purposes.  Pro Staff never attempted to contact Claimant with another work assignment and no testimony was introduced at the hearing that there were any new assignments for Claimant. If the calls Claimant made to American Bio Physics Corporation did not reach Carol Partridge or her office it is not Claimant’s fault. This court will not exalt form over substance nor will it blindly adhere to terms of an acknowledgement that had no relevance to Claimant’s claim for benefits.
          As was stated by the Rhode Island Supreme Court in Harraka, supra:
We incline toward giving the statute [The Employment Security Act] such broad application because, in our opinion, the taking of a contrary view would be to frustrate the statutory declaration that it is to be liberally construed. The requirement of liberal construction may at times make it difficult to distinguish between a claim that is legitimate and that which is without merit, but this does not warrant evasions of the legislative direction. In the past, when considering the requirement of this statute for liberal construction, we have sought to apply what, in effect, might be described as a rule of reason.
Harraka, supra, at 98 R.I. 202, 200 A.2d 598.