Beagan v. Rhode Island Department of Labor and Training

         Sixth Division District Court A.A. 13-33 Jeanne E. LaFazia Magistrate Joseph P. Ippolito, Jr. Chief Judge

          For Claimant: Richard A. Sinapi, Esq.

          For Defendant: Valentino D. Lombardi, Esq. Donald G. Elbert, Jr.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Paul A. Suttell Chief Justice.

         The claimant, Michael J. Beagan, filed a petition for writ of certiorari to this Court pursuant to the Administrative Procedures Act, G.L. 1956 § 42-35-16, seeking review of a decision of the District Court affirming the denial of unemployment benefits to him. Following his termination from employment with the defendant, Albert Kemperle, Inc.^[1] (Kemperle, Inc. or employer), the Rhode Island Department of Labor and Training (DLT) denied Beagan's application for unemployment benefits on the basis that he had been discharged for "disqualifying reasons" pursuant to G.L. 1956 § 28-44-18 of the Rhode Island Employment Security Act^[2] and was therefore not entitled to such benefits. After exhausting his administrative remedies, Beagan sought review in District Court, where DLT's decision was affirmed. We issued a writ of certiorari; and, for the reasons stated herein, we quash the judgment of the District Court.

         I

         Facts and Procedural History^[3]

         Beagan was employed by Kemperle, Inc. as a full-time delivery driver for approximately four years before he was discharged on March 7, 2013. Shortly before his termination, Kemperle, Inc. had issued a new "accident policy" that Beagan had initially refused to sign. According to Beagan's manager, Henry Morancey, Beagan raised concerns over this new policy with other employees and began to cause a "ruckus." On March 6, 2013, Morancey clarified this new policy to Beagan in a conversation, after which Beagan agreed to sign the policy. During that conversation, Beagan also voiced concerns that he was not being paid 2.5 hours for overtime work each week.^[4] Following their exchange, Morancey wrote an email to the owner of Kemperle, Inc., Ronald Kemper, stating:

"I just wanted to keep you informed of a situation here in the Rhode Island location. When the new 'Standard Operations & Procedures' came out, I printed copies for each of my employees and asked them to read them over, sign and return to me. Over the next week or so, * * * Beagan, one of my drivers, began to complain about the policies and how unfair he thought they were, how his wife works for a Workers' Compensation attorney and she thinks [Beagan] should be compensated for at least 2-1/2 hours of overtime every week and he shouldn't have to comply with the standard operation procedures, etc. He has been voicing his opinions to not only the drivers here in Rhode Island, but also the drivers in the Hartford location creating a lot of ill-will.

"Yesterday I told everyone that the signed copies were due and needed to be returned to me as I had to return them to Corporate. [Beagan] initially refused to sign the document. He reiterated his feelings that the terms were unfair and he did not want to sign it. I told him it was his choice to sign or not, however, there would most likely be consequences if he did not comply. I went on to tell him that everyone in the company was required to sign the document, myself included. He began ranting about how his wife works for a Workers' Compensation attorney and he didn't have to sign."

         The following day, Morancey called Beagan into his office, intending to terminate his employment because, according to Morancey, the previous day the two "had some * * * words and [Beagan] [had taken] a couple of personal shots at [him]." He indicated that, although "normally" an employee was given three written warnings before being terminated, because "things were getting * * * pretty bad between" the two, "[he] felt it was in everyone's best interest to let [Beagan] go." Morancey testified that, while he was speaking to Beagan, Beagan "got teary-eyed and stuff" and that Morancey "kind of took a little bit of pity on him" and decided to give him another chance. Instead of terminating Beagan's employment, Morancey gave him a written notice;^[5] Beagan apologized, signed a copy of the email Morancey had sent to Kemper as well as the written notice, and acknowledged that he had exhibited insubordinate behavior. Beagan was informed that the next violation would result in termination. Morancey then explained what occurred next:

"I then proceeded to send [Beagan] on his daily routine to * * * make deliveries to customers. * * * [I]n * * * the office he made a comment about how * * * he can write whatever he wants on Facebook, which, I guess, is * * * his right under the Constitution of free speech. * * * I guess, he said a lot of stuff about me personally, on his Facebook account, none of which I ever followed. I do not use Facebook. * * * [H]e basically told me in the office, before we adjourned the meeting, that * * * I couldn't see what he writes on his Facebook because he has me blocked. So, that being said, * * * it had piqued my curiosity to see exactly what [he] was saying about me. So I had a third party, who I'd like to remain anonymous, log on to Facebook and bring up [Beagan's] page, at which point I * * * saw quite a few things that he had to say about me and about our meeting in the office that * * * morning of [March 7]."

         He later described that Beagan had spoken in a "smug manner" when he indicated that Morancey would not be able to find out what he says on Facebook. A post made on Beagan's Facebook page that day read: "It's a good thing my boss doesn't take things personal and wanna [sic], like, know if I wrote shit about him. I sometimes forget that despite that [sic] fact he walks and talk [sic] like a real person, he isn't a real boy, Geppeto [sic]."^[6] This post appears to have been made three hours prior to Morancey accessing Facebook.^[7] When Beagan returned from his morning deliveries, Morancey informed him that his employment was being terminated. Beagan recalled Morancey mentioning Facebook at that time, but he left the premises without any further discussion.^[8]

         A

         Administrative Procedures

         On March 18, 2013, Beagan filed a claim for unemployment benefits with DLT. The DLT form completed by Kemperle, Inc. noted the reason for Beagan's discharge as: "misconduct * * * [Beagan] was written up then left the office exhibiting insubordination in front of other employee [sic] right after signing a written notice. He was then terminated[.] Prior to be [sic] written up he was voicing his negative attatude [sic] in other business loccotons [sic]." Additionally, Kemperle, Inc.'s "employer statement, " again describing the cause of Beagan's termination, quoted the language of the written warning, described that Beagan was angry about the new policy and that, after signing the written policy, "[Beagan] went out of the office ranting and raging to other employees about management and the new policy. He wanted overtime. He was given [two] 15 minute breaks and ½ hour lunch[es]. [H]e was saying he wanted overtime and causing a commotion with other employees." Neither of these forms referenced any Facebook post as the cause of discharge.

         On April 22, 2013, the director of DLT denied Beagan's application because it found that Beagan had been discharged due to "unprofessional behavior in the workplace" and was disqualified from receiving benefits because his "actions were not in [the] employer's best interest[]" pursuant to § 28-44-18.

         Beagan timely appealed this determination to the appeal tribunal (referee) pursuant to § 28-44-43.^[9] On May 29, 2013, a hearing was held before the referee. At the hearing, both Beagan and Morancey testified. In addition to recounting the incidents of March 6 and 7 (as summarized herein), Morancey testified that "the Facebook posting was the reason [Beagan] was let go, ultimately." He also noted that the reason he terminated Beagan's employment, "aside from the fact that [Beagan] wrote what he did on Facebook, [was] that [there was] also a policy that [Beagan] [was] not supposed to use his cell phone for texting or Internet use while he[] [was] driving a company vehicle. And given the timeframe that he posted that threat, it[] [was] obvious that he was on the road."

         At the close of the hearing, the referee issued a written decision affirming the director's denial of benefits. In his decision, the referee made the following findings of fact:

"[Beagan] worked as a driver for Albert Kemperie [sic], Inc. for 4 years and 3 months, last on March 7, 2013. The employer terminated [Beagan] for violating the company policy concerning insubordination. [Beagan] was upset about new company policy changes concerning abuse of time off and driving accidents in company vehicles. [Beagan] was inciting coworkers in his office and also in the Connecticut office against the policy changes creating a lot of ill-will. The employer introduced evidence that showed that the claimant was posting derogatory comments about his supervisor on Facebook that named his supervisor. [Beagan] stated that he was terminated because he complained about not being paid 2.5 hours of overtime per week."

         The referee concluded that:

"[Beagan] was terminated for violating the company policy concerning insubordination, therefore, I find that sufficient credible testimony has been provided by the employer to support that the claimant's actions were not in the employer's best interest. Therefore, I find that [Beagan] was discharged for disqualifying reasons under Section 28-44-18 * * *."

         Beagan appealed the referee's decision to the full board of review (the board) pursuant to § 28-44-47. On August 2, 2013, the board affirmed the referee's decision, finding that there was a proper adjudication of the facts and a proper application of the law. The board declared the decision of the referee "to be ...