STATE OF RHODE ISLAND AND PROVIDENCE
PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
RONALD TORCOLETTI
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V. : A.A. 03-51
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DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW
D E C I S I O N
DEROBBIO, C.J.
This matter is before the Court on the complaint of Ronald Torcoletti, 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,
Ronald Torcoletti was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant last worked on October 11,
2002. The claimant filed his new claim for Employment Security benefits on October
16, 2002. The claimant had been working for approximately seventeen years. In
a decision dated November 25, 2002, the Director determined the claimant voluntarily
left this job without good cause, as provided for under Section 28-44-17 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 8, 2003, at which
the claimant appeared and provided testimony. The claimant was represented by
an attorney at this hearing. The employer, who was duly noticed of this hearing,
did not attend.
The Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant was discharged for misconduct
in connection to his employment 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, Ronald Torcoletti
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 been working as an electrical engineer for the Department
of Navy as a civilian employee. The claimant's last day of work was October
11, 2002. This was a full-time job. The claimant had established a schedule
which was acceptable to his employer from Monday to Friday. As part of this
schedule, each day contained core hours, which were defined as 9:00 a.m. to
11:00 a.m. and 1:00 p.m. to 3:00 p.m. These are the hours the employer needed
the claimant at the site to perform his job duties without variation. The claimant
was suspended for five days in February 2002 after receiving warnings when he
was not at the facility during these core hours. The claimant was again suspended
for a two-week period of time in June 2002, again for the same issue. Upon his
return to work following this second suspension, again the claimant was not
at the facility during core hours in the afternoon. It was recommended that
the claimant be terminated and discharged from his position at that time. The
claimant was given an option to voluntarily retire. The claimant did retire
in an effort to preserve certain benefits, which he was entitled to and could
only receive had he retired."
The Board of Review adopted the following conclusions of the Referee:
"To be determined, therefore, is whether or not he was discharged under
disqualifying circumstances under the provisions of Section 28-44-18 of the
Rhode Island Employment Security Act.
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.
Section 28-44-18 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 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, while he did voluntarily retire, was forced
into this issue as the employer was terminating the claimant after written warnings
and two suspensions for continued actions concerning his failure to be on the
premises as required by his employer. Based upon the credible testimony presented
at the hearing and lack of evidence to the contrary, I find that the claimant's
separation in this instance is considered to be under disqualifying circumstances.
The claimant's actions were willful in nature and demonstrated a disregard in
the best interests of this employer. The claimant's actions rose to the level
of misconduct as cited above and led directly to this separation. Therefore,
the claimant cannot be allowed benefits in this issue."
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 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.
The Court, in its review of the entire record, finds that there is substantial
evidence on the record to substantiate the conclusions of the Referee, as adopted
by the Board of Review, that the claimant was terminated for his continued failure
to be present on the facility during the core hours of employment as determined
by the needs of the employer; which continued failures resulted in warnings,
suspensions and finally termination. The actions of the claimant rise to the
level of misconduct as defined by Turner v. The Department of Employment Security.
The claimant's actions amounted to a willful and wanton disregard for the interest
of the employer.
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.