PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

DEROBBIO, C.J. This matter is before the Court on the complaint of Yolanda Willems, 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, Yolanda Willems was entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed for six months. Her last day of work was September 16, 2001. She filed a claim for Employment Security benefits on September 18, 2001.

In a decision dated October 9, 2001 the Director determined that the claimant’s separation from employment was under disqualifying circumstances under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed an appeal on the same day, October 9, 2001.

A hearing was held before a Referee on October 25, 2001 at which time the claimant, her legal counsel and three employer representatives were present. On November 2, 2001 the Referee reversed the Director, ruling that the record showed that the claimant might have been an unsatisfactory worker, but that the employer had not proved that the claimant’s actions were the result of misconduct. The Referee granted benefits. On November 20, 2001 the employer appealed to the Board of Review.

A hearing was held before the Chairman of the Board of Review on December 5, 2001. The employer’s executive director, president and counsel were present. The claimant and her counsel were present.

The Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee's decision. Thereafter, Yolanda Willems 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 discharged for misconduct in connection with her employment was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

The Board of Review made the following findings of fact:

"The findings of fact contained in the decision of the Referee are hereby affirmed and incorporated into this decision as if fully set forth herein; provided however, the Board makes the following additional findings, which, if in conflict with the Referee’s rulings shall be controlling.

 

The claimant was terminated on or about September 18, 2001 because of an incident, which occurred on September 14, 2001. On this date the claimant became angry and threatened to walk off the job because her partner had been changed. During the course of her employment, the claimant had been warned and been advised several times regarding her divisive and confrontational conduct in front of clients, professionals, co-workers and managers/super- visors. Despite the warnings, the claimant continued to exhibit confrontational conduct in her actions."

 

The Board of Review made the following conclusions:

"The issue in this case is whether or not the claimant was discharged under disqualifying circumstances within the meaning 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.

 

As the Referee cited in his decision, the issue is whether the claimant committed misconduct. Section 28-44-18 of the Rhode Island Employment Security Act defines misconduct as deliberate conduct in willful disregard of the employer’s interest.

 

Based on the official file, including the Referee’s transcript, and, as supplemented by, the testimony and argument before the Board, the employer has proved misconduct. The incident on September 14, 2001 standing alone may not rise to the level of misconduct. However, when viewed with the claimant’s past conduct, the incident on September 14, 2001 is misconduct.

 

The employer operates an emergency medical service. The claimant’s statement to the employer that she can walk off her job and, thereby, leave this critical service uncovered, is conduct against the employer’s interest.

 

The employer has produced evidence that the claimant has exhibited a divisive and confrontational attitude in the past. Her attitude has been discussed with her on several occasions during the brief employment relationship. The claimant has been made aware of the situation and what conduct is expected of an emergency medical technician. The September 24, 2001 incident, standing alone, might be considered as example of bad judgment. However, when the confrontational conduct is exhibited on continuing bases [sic] in the health care emergency profession, such conduct can only be described as deliberate and harmful. The claimant is not eligible for benefits under Section 28-44-18 of the Act."

 

The following are the findings of fact of the Referee:

"The claimant last worked for this employer full-time on September 16, 2001. The claimant had worked as an EMT Cardiac Technician for a local ambulance/transportation company. The employer terminated the claimant for being difficult with supervisors and for allegedly being difficult and rude to customers and physicians when she transported patients to and from treatments. The employer and two witnesses, an interim supervisor and the claimant’s regular supervisor testified to these circumstances surrounding the alleged incidences. The claimant did not testify at this hearing."

 

The claimant raises a number of issues.

(1) That the Board’s decision must be overturned due to violation of constitutional provisions.

(2) That the Board’s decision must be overturned due to errors of law in that the Board relied on hearsay evidence in concluding that the claimant was discharged for misconduct connected with her work.

(3) That there was no evidence before the Board establishing that the claimant was discharged for misconduct.

(4) The Board’s decision misconstrues misconduct as defined by statute and case law.

The Administrative Procedures Act is applicable to the state government agencies and Board unless specifically exempt.

Section 42-35-18(c) entitled Scope of Application and Exemptions provides in its pertinent part:

(c) The provisions of §§ 42-35-9, 42-35-10, 42-35-11, 42-35-12 and 42-35-13 shall not apply to:

(1) Any and all acts, decisions, findings, or determinations by the board of review of the department of labor and training or the director of the department of labor and training or his, her, its or their duly authorized agents and to any and all procedures or hearings before and by the director or board of review of the department of labor and training or his or her agents under the provisions of chapters 39 – 44 of title 28.

 

The claimant’s argument that 42-35-10 provides for the admissibility of evidence is not applicable to hearings conducted by the Department of Labor and Training.

Section 28-44-44 Procedure before appeal tribunal – Record.

28-44-44. Procedure before appeal tribunal – Record. - A reasonable opportunity for a fair hearing shall be afforded all interested parties, promptly. An appeal tribunal shall inquire into and develop all facts bearing on the issues and receive and consider evidence without regard to statutory and common law rules. The board of review shall adopt regulations governing the manner of filing appeals and the conduct of hearings and appeals, consistent with the provisions of chapters 42 – 44 of this title. A record shall be kept of all testimony and proceedings in an appeal, but testimony need not be transcribed unless further review is initiated.

 

The Board of Review is not limited by rules of evidence or the requirements of the Administrative Procedures Act that mandates adherence to the Superior Court Rules of Evidence in civil cases. Hackett v. Murray, 508 A.2d 642 (R.I. 1986). Hearsay evidence is admissible in Department of Labor and Training hearings. Evidence, in addition to that submitted to the Referee, may be introduced at a Board of Review hearing. Camille v. Board of Review, 557 A.2d 1234 (R.I. 1989).

28-44-47. Appeal to board of review. – Any party in interest, including the director, shall be allowed an appeal to the board of review from the decision of an appeal tribunal. The board of review on its own motion may initiate a review of a decision or determination of an appeal tribunal within fifteen (15) days after the date of the decision. The board of review may affirm, modify, or reverse the findings or conclusions of the appeal tribunal solely on the basis of evidence previously submitted or upon the basis of any additional evidence that it may direct to be taken.

 

Section 28-44-47 provides that the Board of Review may affirm, modify, or reverse the findings or conclusions of the Appeals Tribunal solely on the basis of evidence previously submitted or upon the basis of such additional evidence as it may direct to be taken.

A review of the record shows that the claimant was given an opportunity to present evidence before the Appeals Tribunal.

On review before the Board, testimony was presented by the employer. The record shows that after the employer finished its presentation, which was subjected to cross-examination, the claimant was given an opportunity to present evidence.

See Transcript of Board of Review pages 64 and 65.

"MS. HORAN: I have nothing further.

MR. DANIELS: All right. You -- you have nothing of Mr. Reis? You’re all --

MS. HORAN: No.

MR. DANIELS: -- set. All right, Mr. Formisano?

MR. FORMISANO: No, sir.

MR. DANIELS: Do you have anything of your claimant? Where do you wish to go? It’s -- do you --

MS. HORAN: (INAUDIBLE.)

MR. FORMISANO: Sir, --

MR. DANIELS: Anything additional that hasn’t been testified to?

MR. FORMISANO: Well, my position would be that the employer has not established misconduct.

MR. DANIELS: Okay, you can argue --"

 

On page 67 of the Transcript claimant’s attorney asked if the Board would like to hear more evidence and that he was prepared to give it.

However, the matter concluded with dialogue rather than more evidence.

A review of the record does not establish that the claimant’s due process rights were violated.

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. vs. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1940):

'[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 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.

 

Section 28-44-44 provides that all parties be given "A reasonable opportunity for a fair hearing." A review of the record demonstrates that the parties received a fair hearing and that evidence was received and reviewed by the Board of Review.

The record discloses that there is probative, reliable and substantial evidence on the record to establish a pattern of conduct that, in a review of the totality of all the evidence, the Board of Review could conclude was detrimental to the interests of the employer.

There is evidence on the record that the claimant was terminated for an incident that occurred on September 14, 2001 when she became angry and threatened to walk off the job because her partner was changed. The Board could take into consideration past warnings regarding her divisive and confrontational conduct in the presence of others, including clients, professionals, co-workers and others and conclude that the conduct rises to the level of misconduct as defined in Turner v. The Department of Employment Security.

This conduct is a willful and wanton disregard for the employer’s interests as is found in deliberate violations and disregard of the standards of behavior which the employer has a right to expect of his employees.

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.