DePetrillo v. Department of Employment Sec., Bd. of Review

• Decision Date: 19 April 1993
• Docket Number: No. 91-622-M,91-622-M
• Citation: 623 A.2d 31
• Parties: Thomas DePETRILLO, Jr. v. DEPARTMENT OF EMPLOYMENT SECURITY, BOARD OF REVIEW. P.
• Court: Rhode Island Supreme Court

Page 31

623 A.2d 31

Thomas DePETRILLO, Jr. v. DEPARTMENT OF EMPLOYMENT SECURITY, BOARD OF REVIEW.

No. 91-622-M.P.

Supreme Court of Rhode Island.

April 19, 1993.

Shannon Gilheeney, Marc DeSisto, Carroll, Kelly & Murphy, Providence, for plaintiff.

Pat Nero, Cranston, for defendant.

OPINION

MURRAY, Justice.

This case is before this court pursuant to a writ of certiorari filed by the plaintiff, Thomas DePetrillo, Jr. We deny the plaintiff's petition for certiorari.

Our assay of the record reveals that the facts and the procedural history of this case are as follows. On May 29, 1987, plaintiff filed for employment-security benefits with the Department of Employment Security (DES). The DES director determined that plaintiff did not meet the eligibility requirements for employment-security benefits and denied plaintiff's claim. The plaintiff appealed, and a hearing was held before a DES referee. The referee issued a decision which also found plaintiff ineligible for benefits. The plaintiff then appealed to the board of review of DES.

At a hearing before the DES board of review, plaintiff testified to the following. On January 1, 1986, plaintiff commenced work at the Rhode Island Department of the Attorney General as an investigator in the section 8 housing program, a program funded by the federal government. Approximately three months after plaintiff commenced work, a grand jury began investigating potential criminal conduct on the part of plaintiff in connection with plaintiff's employment. On March 25, 1986, then-Attorney General Arlene Violet suggested that plaintiff take a "leave without pay" during the grand-jury investigative process. The plaintiff testified that he took leave without pay with the belief that he could return to his job once the grand jury completed its investigation. The grand jury indicted plaintiff for obtaining money under false pretenses. The state later dismissed this indictment for lack of evidence. ¹

Although it is not exactly clear from the record, at some point the Department of the Attorney General changed plaintiff's status from leave without pay to suspended without pay and this change was made retroactive to March 26, 1986. On March 29, 1987, more than one year after plaintiff took the leave without pay, the Department of the Attorney General fired plaintiff. On May 29, 1987, plaintiff filed for unemployment benefits.

Following the hearing at which the aforementioned facts were established, the DES board of review issued a decision affirming the referee's denial of plaintiff's claim for benefits. The plaintiff then appealed to the District Court. A District Court judge affirmed the decision of the board of review, and in a written decision the District Court judge articulated three grounds to support the DES decision: (1) that plaintiff failed to comply fully with the statutory eligibility requirements found in G.L.1956 (1986 Reenactment) § 28-44-12, (2) that plaintiff was monetarily ineligible pursuant to § 28-44-11, and (3) that plaintiff failed to establish a "waiting period" in compliance with § 28-44-14.

I

We begin by reviewing the District Court judge's decision which affirmed DES's denial of plaintiff's claim. The District Court judge held that plaintiff did not meet the eligibility requirements of § 28-44-12, which states:

"Availability and Registration for work.--An individual shall not be eligible for benefits for any week of his partial or total unemployment unless during that week he is physically able to work and available for work. To prove availability for work, every individual partially or totally unemployed shall register for work and shall file claim for benefits at the employment office, within such time limits and with such frequency and in such manner, in person or in writing, as the director may prescribe. Every individual filing claim for benefits shall report whenever duly called for work through the employment office, and shall make an active, independent search for suitable work. No individual shall be eligible for benefits for any week in which he fails, without good cause, to comply with the requirements as set forth hereinabove."

As is evident from this statutory language, § 28-44-12 requires a claimant to prove that the claimant is totally or partially unemployed, that the claimant is available for work, and that the claimant has registered with DES and conducted an active, independent search for work.

Applying this test, the District Court judge agreed with DES that plaintiff became totally unemployed on March 25, 1986, the date plaintiff took a leave without pay. The General Assembly defined total unemployment in G.L.1956 (1986 Reenactment) § 28-42-3(15), which states:

"An individual shall be deemed totally unemployed in any week in which he performs no services * * * and for which he earns no wages * * * and in which he cannot reasonably return to any self-employment in which he has customarily been engaged."

Both the District Court judge and DES concluded that plaintiff became totally unemployed from March of 1986 because from that time forward plaintiff performed no services and received no wages. There being nothing to the contrary in the record, we believe that the District Court and DES implicitly concluded that plaintiff could not return to self-employment. The District Court judge also believed that plaintiff satisfied the second requirement, availability for work, because plaintiff "was not otherwise engaged" in other employment. The District Court judge found, however, that plaintiff never complied with the third requirement found in § 28-44-12. The evidence established that plaintiff never registered for work at a DES office, nor did plaintiff conduct an active and independent search for suitable work during the period of his suspension. Accordingly the District Court judge affirmed the DES decision that plaintiff was ineligible for benefits.

In arguments before DES and the District Court, plaintiff relied on the portion of § 28-44-12 that states that "[n]o individual shall be eligible for benefits for any week in which he fails, without good cause, to comply with the requirements as set forth hereinabove." The plaintiff argued that he had good cause for failing to comply with the requirements of § 28-44-12 because plaintiff believed he was ineligible for benefits during the period of his suspension. The District Court judge and DES disagreed and concluded that plaintiff's subjective understanding of his eligibility for benefits did not constitute good cause for not complying with § 28-44-12.

The District Court judge also affirmed DES on the ground that plaintiff was monetarily ineligible for unemployment benefits pursuant to § 28-44-11, which at the time of plaintiff's claim for benefits stated in pertinent part:

"Earnings requirement for benefits.--An individual shall be deemed eligible for benefits for any given week of his unemployment only if he has within the base period immediately preceding the benefit year in which that week of unemployment occurs earned wages amounting to at least twenty (20) times the minimum hourly wage as defined in chapter 42 of this title in each of at least twenty (20) weeks, or,...