Volino v. General Dynamics, 86-107-A

• Decision Date: 07 April 1988
• Docket Number: No. 86-107-A,86-107-A
• Citation: 539 A.2d 531
• Parties: 3 IER Cases 306 John VOLINO v. GENERAL DYNAMICS. ppeal.
• Court: Rhode Island Supreme Court

Page 531

539 A.2d 531

3 IER Cases 306

John VOLINO v. GENERAL DYNAMICS.

No. 86-107-Appeal.

Supreme Court of Rhode Island.

April 7, 1988.

Christopher J. Burke, Marc B. Gursky, Providence, for plaintiff.

Robert G. Flanders, Jr., Flanders & Medeiros, Providence, for defendant.

OPINION

SHEA, Justice.

This matter is before the Supreme Court on appeal of the plaintiff from judgment against him entered in Superior Court after the court granted the defendant's motion for summary judgment. We affirm.

The plaintiff had been employed by defendant General Dynamics, at its Quonset Point facility as a welder just short of three years prior to his discharge March 21, 1983. The plaintiff alleged that he had been wrongfully discharged by defendant "in retaliation for [his] reporting of several incidents of malpractice by defendant and its agents." There is no dispute that he left the plant on March 17, 1983, without obtaining authorization to do so from his supervisor. The defendant company contends that plaintiff was discharged because of that violation of company policy.

The plaintiff applied to the Rhode Island Department of Employment Security (DES) for unemployment compensation. His application was denied. His appeal from that denial was heard by a referee. At that hearing plaintiff was represented by counsel, and he was afforded the opportunity to testify and to cross-examine defendant's witnesses. In that proceeding plaintiff claimed that he had left work on the day in question because he was ill.

It is clear that the issue of plaintiff's action in leaving defendant's premises without authorization was litigated before the referee. However, nothing exists in the record to indicate that plaintiff's claim that he was discharged in retaliation for reporting violations of United States Navy construction standards was presented to or addressed by the referee. The referee found:

"There is no dispute that the claimant left work without authorization and without personally advising his supervisor. Though the claimant contends that he became physically ill at this time, the credible evidence would indicate that even if he had become ill, it was not of the nature which would have prevented him from complying with company policy relative to obtaining authorization to leave. We find that the claimant must bear responsibility for his unemployment. His actions on this day in question we find to be actions not in the best interest of his employer. Under these circumstances, we find that the claimant was discharged under disqualifying circumstances and benefits must be denied him."

The referee's decision was appealed to the DES Board of Review, which affirmed, stating, "[T]he decision of the Referee is a proper adjudication of the facts in this case and the law applicable thereto." The plaintiff did not seek judicial review in the District Court as was his right under G.L. 1956 (1979 Reenactment) § 28-44-52. Therefore, the decision of the board of review is final.

In the Superior Court defendant moved for summary judgment or, in the alternative, moved for dismissal for failure to state a claim. In support of its motion defendant submitted a memorandum supported by personnel records, indicating that plaintiff had been discharged for leaving the plant without authorization and because of a history of absenteeism. Additionally defendant argued that the law of Rhode Island is that an employment contract of indefinite duration can be terminated at any time with or without just cause.

In deciding the motion, the Superior Court ruled that...