IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

June 09, 2023 02:38 2M
SM-2009-CV¥-00291

TAMARA CHARLES IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
CLERK OF THE COURT
DIVISION OF ST. CROIX

RUBIANN NIEVES
PETITIONER | SX-09-CV-291

Vv. Petition For Writ of Review

COMMISSIONER OF LABOR, VIRGIN ISLANDS

DEPT. OF LABOR AND BANCO POPULAR DE

PUERTO RICO.

RESPONDENTS

Cite as: 

APPEARANCES:

Law Office of K.G. Cameron

Attorney K. Glenda Cameron, Esq.,
#2006 Eastern Suburb, Suite 101
Christiansted, St. Croix, U.S.V.I. 00820

Attorney Micol Morgan, Esq.,

The Tunick Building, Suite 201
#1336 Beltjen Road

St. Thomas, U.S.V.I. 00802

Jomo Meade, Senior Sitting Judge

MEMORANDUM OPINION

{ 1. THIS MATTER is before the Court on a Petition for a Writ of Review
filed by Petitioner, Rubiann Nieves (hereinafter “Nieves”), requesting that
this Court reverses the decision of the Administrative Law Judge affirming
the adjudicator’s decision to deny her application for unemployment

benefits. For reasons given, Nieves‘ request for relief is denied.
Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico

SX-2009-CV-291

ORDER

Factual and Procedural Background
qT 2, Nieves was an employee of Banco Popular de Puerto Rico (hereinafter
“Bank”) as a bank service representative or teller. On November 19, 2008
Nieves was involved in a transaction with another bank representative in
which Nieves requested that the other bank representative transferred
cash to Nieves in the amount of Two Thousand ($2000.00) Dollars.
According to the Bank’s policy, when such transfers, called
interdepartmental transfers, are undertaken, a certain procedure is to be
followed. The procedure requires that the bank representative who needs
the cash make a written request and submit it to the main bank
representative or the representative from whom the cash is requested. The
representative who provides the cash will initiate an interdepartmenial
transfer ticket (IDT) which is sent electronically to the representative
receiving the cash. The representative who receives the cash should verify
the amount received and respond to the IDT confirming receipt of the cash.
To complete the transaction, the representative transferring the cash is
required to sign the credit sheet of the representative receiving the cash
while the representative receiving the cash signs the debit sheet of the
representative who transferred the cash. As it turned out, the cash was
transferred to Nieves, but the IDT process was never implemented. At the
end of the day, the Nieves’ cash balance reflected an excess of two

thousand eight dollars and ninety-three cents ($2008.93) while the cash
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Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico

SX-2009-CV-29 1

ORDER

balance of the representative from whom Nieves received the cash showed
a deficit of One Thousand Nine Hundred and Fifty-One Dollars and
Seventy-Six Cents ($1,951.76). Initially the bank representatives had
forgotten the earlier cash transfer but later informed the assistant bank
manager that the transfer may have been the reason for the cash balance
discrepancies. As a result of this incident, the Bank terminated Nieves’
employment on December 5, 2008.

qT 3. The Bank also has a policy against periodic or accumulated cash
balance discrepancies. Under this policy, bank representatives are
prohibited from having more than 36 cash balance differences of greater
than $5.00 over a twelve-month period. Accumulated cash balance
differences in excess of six hundred dollars over a twelve-month period
invoke remedial or disciplinary action by the Bank.

q 4. Nieves filed a claim for unemployment benefits on January 9, 2009.
On March 20, 2009, an adjudicator for the Virgin Islands Employment
Security Agency determined that Nieves was ineligible for benefits because
she was terminated for misconduct. The adjudicator found that Nieves was
terminated for repeated violation of the Bank’s policies and procedures
and that Nieves had received several warnings before being terminated.
Nieves appealed the decision of the adjudicator, and a hearing was
convened before an Administrative Law Judge (ALG) on April 28, 2009.

After taking the testimony of withesses and documentary evidence, the

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Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico

SX-2009-CV-291

ORDER

ALG affirmed the decision of the adjudicator, issuing an opinion on May
12, 2009. Nieves filed her Petition for Review with the Superior Court on
June 12, 2009,
Jurisdiction and Standard of Review

{ 5. The Superior Court has jurisdiction to hear and review final
decisions of administrative agencies. Title 5 V.LC §1421 to 1423 and
Superior Court Rule 15. This Court has jurisdiction to hear this Petition for
Review since it is a final decision of the ALJ, and Nieves filed her Petition
within thirty days of the issuance of the decision of the ALJ. Title 24 V.LC.
§ 306(e)(1). On a petition for review, the Superior Court functions in the
capacity of an appellate court. V.I. Gov’t Hospitals & Health Facilities Corp.
v. Gov't of the V.L, 

 (Super. Ct. 2006). In reviewing a
hearing officer's decision relating to unemployment benefits, the Court is
confined to questions of law. Holder v. V.I. Unemployment and Sec. Agency,

 (Super. Ct. 2014). Absent fraud, the hearing
examiner's findings of fact shall be conclusive if supported by substantial
evidence. Title 24 V.LC. §306(e)(3); Jackman v. Heyliger 

(DVI
1984). The determination of what amount of evidence is substantial is a
matter of law to be determined by the Court upon a considered evaluation
of the. entire record. The Court is only to determine whether there is
substantial evidence on the record to support the facts found by the

administrative agency below. Antilles Auto v. Dept. of Labor, 1998 VI.
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Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico

S$X-2009-CV-291

ORDER

LEXIS 42(Terr. Ct. 1998). Substantial evidence is defined as such relevant
evidence as a reasonable mind might accept as adequate proof to support
a conclusion. Richardson v. Perales, 

(197]).
DISCUSSION
A. Basis For Denying Unemployment Benefits
7 6. Under 24 V.LC. § 304(b), an applicant is disqualified from receiving

unemployment benefits if he or she was terminated for misconduct
connected with his or her most recent work. Misconduct is defined as an
act of wanton or willful disregard of an employer's interest, a deliberate
violation of the employer's rules, a disregard for the standard of behavior
which an employer has the right to expect from an employee or negligence
indicating an intentional disregard of the employer’s interests or
employee's duties and obligations to the employer. 

. In
the opinion affirming the denial of employment benefits, the ALJ stated:

Moreover, it is the understanding of this forum that this case

is about the Claimant being disciplined and terminated for

not complying with the Employer’s Rules of Conduct and

Operating Procedures. Simply put, the bank's cash

Transfer/IDT procedures were not utilized on November 19,

2008 when the Claimant sought to receive $2000.00 from

another bank representative without documenting her

request and seeking a prompt IDT response in order to

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Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico
SX-2009-CV-291

ORDER
complete the process. The actions of the Claimant on the
morning of November 19, 2008 were not in accordance with
the rules and policies of the bank, as they were against the
interests and expectations of the Employer.
I 7. The record indicates that Nieves, Sarah Gilbert, the bank

representative who provided the cash to Nieves, and the assistant bank
manager were among the witnesses who testified at the hearing. The
record also indicates that Nieves was well aware of the requirement to
implement the IDT procedure for cash transfers and of the Bank's policy
regarding cash balance discrepancies. In addition, the record indicates
that Nieves was issued written reprimands for violation of the Bank's rules
and code of conduct on other occasions. Based on the evidence, the ALJ
concluded that Nieves’ engagement in a cash transfer transaction in which
the IDT process was not implemented constitutes misconduct.
B. Nieves’ Challenge to the Finding of Misconduct
Ft 8. Nieves raised several arguments in her challenge to the decision of
the ALJ. First, she argues that her involvement in the cash transfer
transaction does not constitute misconduct. That is, Nieves contends that
her role in the IDT process was not to initiate it but to respond to it. Since
an IDT was not initiated, her failure to respond to one could not have

constituted misconduct. The ALJ determined that since Nieves was aware

that a cash transfer transaction without an IDT was in violation of the

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Rubiann Nieves v. Cormmissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico

SX-2009-CV-291

ORDER

Bank's policy, her involvement in the transaction constituted misconduct.
Accordingly, Nieves’ violation is not confined to whether she was required
to initiate the IDT but extended to whatever way she was involved in the
transaction. In fact, the ALJ specifically noted that Nieves did not
document her request for the cash in writing as the policy requires. The
ALJ also identified Nieves’ failure to make a written request for the cash
as an element of the violation.

qT 9. Second, Nieves contends that she was singled out for termination
because the bank representative who was involved in the same transaction
was required to initiate the IDT was not terminated. At the hearing, the
ALJ was presented with evidence that the Petitioner had been given
warnings in the past, including written reprimands, indicating that her
conduct was in violation of the Employer’s rules, policies and procedures.
In fact, the evidence in the record indicates that Nieves was issued a
written reprimand on November 14, 2008 and was advised that this was
her final warning before termination. The ALJ determined that Nieves was
terminated not merely for her actions of November 19, 2008 but pursuant
to the Employer's progressive disciplinary process after repeated violations
of the rules, policies and procedures of the Employer.

7 10. Third, Nieves argues that that the ALJ erred in its factual findings.
Specifically, she contends that the ALG failed to recognize the proper

sequence of events that constituted the IDT procedure and based her

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Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico

SX-2009-CV-291

ORDER

decision on the mistaken or erroneous claim that Nieves was required to
initiate the IDT process. Contrary to Nieves’ argument, the ALJ recognized
the sequence of events of the IDT procedure. However, the ALJ noted that
Nieves made a verbal rather than a written request for the cash and further
engaged in a transaction that was in violation of the Bank’s policy. The
ALJ took note of the fact that Nieves was not the only culpable employee
and recognized that the procedure required the other bank representative
to electronically initiate the IDT. However, the ALJ determined that the
culpability of the other employee did not absolve Nieves’ misconduct of
knowingly engaging in a transaction that was in violation of the Bank’s
policy.

"11. Fourth, Nieves contends that there was substantial evidence in the
record that would support a decision in her favor but the ALJ erred by
giving greater weight and credibility to the testimony of the assistant bank
manager than was given to the testimony of Nieves and Sarah Gilbert. This
Court, with its limited scope of review, can simply not say that a decision
of a hearing officer giving credence to the testimony of the witness present
and participating in the actual events at issue is not based

on substantial evidence. Hess Oil V.I. v. Gov't of the V.I. Dep't of Labor, 

, at *3 (D.V.I. 1983). The ALJ noted that there was
conflicting testimony as to the time that the assistant manager was

informed of the undocumented cash transfer and the remedial measures

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Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico

SX-2009-CV-291

ORDER

undertaken to rectify the cash balance discrepancy. Nieves insists that the
assistant manager was informed of the of the undocumented cash transfer
as the reason for the cash balance discrepancy on November 19, 2008 but
did not rectify the discrepancy on the same day. In addition, she contends
that when the remedy was attempted on the following day it was done
improperly making it appear that her accumulated cash discrepancy was
greater than it would have actually been. The ALG concluded that the
assistant manager was not informed of the cash transfer on the same day
that it occurred. The ALJ also determined that the evidence presented in
relation to the efforts to rectify the cash balance discrepancies indicate
that Nieves’ discrepancies were excessive by the standard of the Bank’s
established policy. Accordingly, the ALJ determined that Nieves violated
the Bank’s policies, both in terms of her engagement in the transaction on
November 19, 2008 and in terms of her accumulated cash discrepancies
over a given period. The ALG based her findings of fact on the evidence in
the record. This Court has no authority to disturb the ALJ's factual
findings in the absence of fraud.
C. The Substance of the Evidentiary Record

qT 12. This Court's role in reviewing a determination in an unemployment
case is limited to whether there is substantial evidence in the record to
support the facts as found by the agency below. Antilles Auto v. Gov’t of

the V.I. Dept. of Labor. 1998 VI LEXIS 42 (Terr. Ct. 1998). The ALJ's finding
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Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico

$X-2009-CV-291

ORDER

of facts was supported by evidence which revealed that Nieves engaged in
a cash transfer transaction with another bank representative that did not
involve the IDT process mandated by the Bank's policy for such cash
transfers. Nieves did not deny her engagement in the transaction.
However, she contends that the facts clearly show that she was not
required to initiate the IDT process and therefore her involvement does not
constitute misconduct. Accordingly, Nieves argues that in light of the
evidence which establish that she was not required to initiate the IDT,
there was substantial evidence upon which the ALJ could find in her favor.
However, besides the events of November 19, 2008 there was other
evidence in the record to support the ALJ's decision.

"13. The record indicates that Nieves admitted to being engaged in the
transaction at issue. The record also indicates that she was given training
in the Banks financial practices and policies and was fully aware that
engaging in such a transaction without implementing the IDT process was
a violation of the Bank’s policy. It is misconduct for an employee to engage
in conduct of which the employee is aware violates the employer's rules.

. The record further reveals that Nieves had been given
remedial exercises, prior warnings, reprimands, and other disciplinary
measures in relation to her instances of conduct which violated the Bank’s
rules, policies, and procedures. An employee’s engagement in conduct

which violates the employer's rules after being given prior warnings and

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Rubiann Nieves v. Commissioner of Labor, Cite as: 2023 VI Super 32p
VI Department of Labor and Banco Popular de Puerto Rico
SX-2009-CV-29]
ORDER

directives constitute misconduct. Holder v. VI Unemployment Sec. Agency.

2014 VI LEXIS 13 (Super. Ct. 2014)

CONCLUSION

There is substantial evidence from which the ALJ could find that

Petitioner committed misconduct during her employment with the Bank.

Accordingly, the decision of the ALJ is affirmed.

DONE AND SO ORDERED this 9¢# day of June 2023.

HONORABLE JOMO MEADE
Senior Sitting Judge of the Superior Court

ATTEST:

TAMARA CHARLES
Clerk of the Court

(bbb Mc >
By:

Court Clerk Seperviver

iI