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

JAMES R. URBAN, JR., M.D.:

V. :  A.A. 04-93

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 James R. Urban, Jr., M.D., 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, James R. Urban, Jr., M.D. was entitled to receive employment security benefits.

            The travel of the case is as follows.  The claimant was employed as chief radiology technician by the employer.  His last day of work was February 19, 2004. The Director determined that the claimant was discharged under disqualifying circumstances under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act.  On May 7, 2004 the claimant filed a timely appeal.

A hearing was held before a Referee on May 27, 2004.  Only the claimant was present.  On June 4, 2004 the Referee determined that the claimant’s conduct constituted misconduct and Employment Security benefits were denied.  On June 15, 2003 the claimant appealed the decision to the Board of Review.

“The claimant’s appeal is before the Board, in accordance with Section 28-44-47 of the Rhode Island Employment Security Act, 1956.  This Section allows the Board to affirm, modify, or reverse the findings or conclusions of the Referee solely on the basis of the evidence previously submitted, or upon the basis of such additional evidence the Board may direct to be taken.  The Board has determined that a Decision will be made based on the record forwarded by the Referee.”

The Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee's decision.  Thereafter, James R. Urban, Jr., M.D. 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 not a proper adjudication of the facts and that the claimant was not discharged for misconduct in connection with his work was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

            A majority of the Board of Review made the following findings of fact:

“The findings of fact contained in the decision of the Referee are affirmed and incorporated into this decision as if fully set forth herein.”

      The findings of fact of the Referee are as follows:

     “The claimant was employed as Chief Radiology Technician by the employer.  The claimant had been frequently late for work and had often been a no call, no show.  For some time, the claimant had been working less than his scheduled hours. The claimant was being treated by the employer for depression.  During the two weeks prior to his last day of work, the claimant had been scheduled to work 30 to 40 hours each week, but actually worked approximately 20 hours.  On February 22, 2004, the claimant went to the employer’s office to get his paycheck.  The employer met with the claimant and terminated him, based upon his attendance record.”

     A majority of the Board of Review made the following conclusions:

“The issue in this case is whether or not the claimant was discharged under disqualifying circumstances with [sic] the meaning of Section 28-44-18 of the Rhode Island Employment Security Act.

In order to deny Employment Security benefits, the employer must prove deliberate conduct in willful disregard of the employer’s interest.  The employer did not testify at the Referee hearing.

The uncontested testimony established that the claimant was absent on numerous occasions.  The record established, and the Referee found, that the claimant was suffering from depression.  Further, the record established that the employer was treating the claimant for depression.  The record testimony clearly showed that the claimant was an unsatisfactory worker.

The employer has a right to discharge an unsatisfactory worker.  However, in order to deny Employment Security benefits, the record must establish that the claimant’s actions were deliberate and intentional.  The reasonable conclusion to be made from the record is that the claimant’s actions were the result of an illness rather than a deliberate act to harm the employer’s interest.”

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.

            A review of the entire record demonstrates that the Board of Review drew inferences, from the facts provided at the hearing before the Referee, that the actions of the claimant were as a result of an illness rather than deliberate and intentional harm to the interest of the employer.

            In reviewing the facts, the Board can draw such inferences that were consistent with the evidence provided at the hearing, and a reasonable person reviewing the facts could conclude that the claimant, although an unsatisfactory worker, was suffering from an illness.

            This Court further finds from a review of the facts that there is sufficient evidence, drawing such reasonable inferences therefrom, that the Board of Review could conclude that the actions of the claimant did not rise to the level of misconduct as defined by Turner v. 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.