STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT
SIXTH DIVISION
WILLIE WILLIAMS
V. A.A. 99-21
DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :
D E C I S I O N
QUIRK, J. This matter is before the
Court on the complaint of Willie Williams, 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, Willie Williams was not
entitled to receive employment security benefits.
The travel of the case is as follows:
"The claimant was employed for 14 months. His last date of work was November 16, 1998. He filed a claim for Employment Security benefits on November 24, 1998. In a Director’s decision dated December 15, 1998, it was determined the claimant was discharged under disqualifying circumstances under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of this decision on December 28, 1998. A hearing on the appeal was held on January 14, 1999, at which time the claimant and two employer representatives appeared and testified."
The Referee held the claimant was not entitled to receive unemployment security benefits, based on the determination that claimant engaged in misconduct 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 the conclusions as to the applicable law were correct and proper, and upheld the Referee’s decision. Thereafter, Willie Williams 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 under disqualifying circumstances under R.I.G.L. § 28-44-18 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 was employed for 14 months as a delivery truck driver. His last date of work was November 16, 1998. On November 16, 1998, the claimant failed to complete school milk deliveries accordance with his schedule and the requirements of the employer. The schools were located in the City of Cranston where the employer’s business was located. The claimant was aware and new [sic] of the necessity of completing school deliveries by approximately 11:00 a.m. daily. Acting on complaints from certain schools for nondelivery on November 16, 1998, the manager attempted to reach the claimant by pager but there was no response. The claimant thereafter contacted the employer at approximately 11:45 a.m. alleging he was lost. As a result, the employer was required to engage other drivers to assist in the completion of the school deliveries which were ultimately late. The employer made available to the claimant and other drivers four telephone numbers including an 800 number with which to contact the employer in the event there was a problem. A number of telephone numbers were printed on the side of each vehicle. The claimant made one call to one number and unable to make contact did not make any other attempt to contact the employer until approximately 11:45 a.m. The claimant had a prior history of late deliveries, customer complaints, and failure to fulfill the delivery schedule of the employer. The claimant made no "reasonable effort" to contact the employer to convey this problem with the school deliveries on November 16, 1998. The employer terminated the claimant on November 16, 1998, because of his failure to follow company procedures and policy relative to the delivery requirements of the employer and directives to contact the employer concerning problems with deliveries as soon as possible since the employer’s contracts depended on prompt delivery."
The Board of Review adopted the following conclusions of the Referee:
"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. 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.
The burden of proof in establishing misconduct in connection with the work rests solely on the employer. In the instant case, I find the more credible testimony presented was that of the employer and the employer’s witness. The claimant presented no plausible reason for his failure to comply with the delivery requirements of the employer on November 16, 1998. His testimony with regard to his getting lost and his inability to contact his employer with regard to those deliveries was not believable. Nor was his excuse that his pager was not working because it was low on batteries. The employer has the right to reasonably expect that his requirements concerning the service to his customers would be fulfilled by his employees. The claimant’s inaction concerning contacting his employer adequately to advise of his problems with the deliveries to the schools jeopardized the employer’s relationship with the school department. The employer’s witness, who was friendly to the claimant, provided supporting testimony of the claimant’s prior history of noncompliance. The employer’s witness both indicated that he had counseled the claimant on off hours concerning the claimant’s work ethics. Under these circumstances, based on the credible evidence provided at the hearing, I find the employer’s burden of proof has been met and determined that the claimant’s failure to complete his deliveries on November 16, 1998, in accordance with the employer’s requirements was misconduct in connection with his work was deliberate conduct and willful disregard of the employer’s interest and a knowing violation of a reasonable and uniformly enforced rule and policy of the employer, and, therefore, the claimant must be denied benefits under the above provision of the Act."
Section 28-44-18 of the General Laws of Rhode Island 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 work shall thereby become ineligible for benefits for the week in which that discharge occurred and until he establishes to the satisfaction of the director that he has, subsequent to that discharge, had at least four (4) weeks of work, and in each of that four (4) weeks has had earnings of at least twenty (20) times the minimum hourly wage as defined in chapter 42 of this title. (Emphasis added.)
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 there is substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.
The claimant was warned repeatedly in writing that the employer was dissatisfied with his attendance, continual lateness, unsatisfactory work quality and failure to follow instructions. These warnings began on June 20, 1998 and continued up to three days before the termination.
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 conclu- sive.
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.