Opinion
No. CV 02 0192730
May 21, 2003
MEMORANDUM OF DECISION
Sandra Passero (claimant) applied for unemployment compensation benefits after her employment with her former employer, Advanced Physical Therapy, Inc. (employer), ended on May 28, 2002. The claimant had been working for this employer for about two and a half years as an account manager.
The employer contends that the claimant's employment was terminated for wilful misconduct because she violated company policy in that, without permission, she decided to "zero out" approximately 170 old accounts by transferring them off the books.
Pursuant to General Statutes § 31-222 et seq., an examiner for the named defendant, the administrator of the Unemployment Compensation Act (administrator), determined on July 3, 2002 that the claimant was terminated for a "deliberate act of misconduct" and therefore denied her application for unemployment compensation benefits.
In accordance with General Statutes §§ 31-241 and 31-237j, the claimant appealed the administrator's decision to the Employment Security Appeals Division, where it was referred to an appeals referee for a hearing de novo. The appeals referee stated that the issue was whether the claimant had been discharged for wilful misconduct. The appeals referee made the following factual findings: (1) on December 26, 2001, the employer issued a memo to all employees that any adjustment to an account required approval from a supervisor; (2) the claimant violated this policy regarding accounts receivable and wrote off about $16,000 which might otherwise have resulted in refunds from insurance companies or payments to patients; and (3) adjustments by the claimant were made without approval from a supervisor or without discussion with other employees.
This memo indicated: "We have recently seen an increase in the number and amount of insurance write offs (insurance adjusts) and would like to have a better idea and concept on the steps we are taking prior to writing off unpaid amounts. Therefore, on a go forward basis, please, please bring all claim adjustments over $40.00 to my attention prior to writing them off."
The appeals referee concluded in a decision dated August 19, 2002 that the employer's rule not permitting adjustments to old accounts without permission from a supervisor was reasonable. The referee also concluded that by breaking a reasonable rule of conduct regarding accounts receivable, the claimant had engaged in intentional wilful misconduct because she had been specifically advised not to write off old accounts, and she had not submitted any "plausible explanation" for her conduct. Therefore, the referee affirmed the administrator's decision denying unemployment compensation benefits to the claimant.
The claimant appealed this decision to the Employment Security Appeals Division Board of Review (board) in accordance with General Statutes § 31-249. The board reviewed the record, including a tape recording of the hearing before the appeals referee, and on October 24, 2002, made the following factual determinations: (1) the December 26, 2001 memo was unclear because it did not indicate that a violation would result in termination of employment, or what "on a go forward basis" meant; (2) the employer did not effectively communicate the intent of the memo to its employees, including the claimant who was confused about the meaning of said memo; and (3) the punishment of termination of employment was "disproportionate" to the offense.
The board concluded that the employer had not established or proved that the claimant had acted in reckless disregard of the employer's interests. The appeals referee's decision was reversed and the claimant was granted unemployment compensation benefits.
The employer, referred to hereafter as the plaintiff, appeals to this court pursuant to General Statutes § 31-249b. The board filed a return of record, and a hearing was held on January 28, 2003.
Practice Book § 22-9(a) provides, in pertinent part, that:
"Such appeals are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses." Subsection (b) further provides that: "Corrections by the court of the board's findings will only be made upon the refusal to find a material fact which was an admitted or undisputed fact, upon the finding of a fact in language of doubtful meaning so that its real significance may not clearly appear, or upon the finding of a material fact without evidence."
"[T]he purpose of the unemployment compensation act is to provide income for the worker earning nothing because he is out of work through no fault or act of his own . . ." (Citations omitted.) Cervantes v. Administrator, 177 Conn. 132, 136, 411 A.2d 921 (1979). "[T]he [unemployment compensation] act is remedial and consequently, should be liberally construed in favor of its beneficiaries . . . Indeed the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualifaction in doubtful cases. General Statutes § 31-274 (c)." (Citations omitted; internal quotation marks omitted.). Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 278, 679 A.2d 347 (1996).
As to the standard of review, our Supreme Court has indicated that this court has a limited role when reviewing an unemployment compensation appeal. "To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry the facts nor hear evidence . . . If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." (Citations omitted.) United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).
"As a general rule, `[t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation under General Statutes §§ 31-235 and 31-236 involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.'" United Parcel Service, Inc. v. Administrator, supra, 209 Conn. 386. Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to great deference. Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986).
As to the merits of the appeal, the issue is whether "the decision of the board was logically and rationally supported by the evidence, and was not unreasonable, arbitrary, illegal or an abuse of the board's discretion." Calnan v. Administrator, 43 Conn. App. 779, 785, 686 A.2d 134 (1996).
General Statutes § 31-236 (a) (2) (B) provides in pertinent part that an individual is ineligible for benefits if he or she was discharged for "wilful misconduct in the course of the individual's employment." "Wilful misconduct" is defined as "deliberate misconduct in wilful disregard of the employer's interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied." General Statutes § 31-236 (a) (2) (16).
Additionally, Section 31-236-26a of the Regulations of Connecticut State Agencies provides that:
[I]n order to establish that an individual was discharged or suspended for deliberate misconduct in willful disregard of the employer's interest, the Administrator must find all of the following: (a) Misconduct. To find that any act or omission is misconduct the Administrator must find that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employer. (b) Deliberate. To determine that misconduct is deliberate, the Administrator must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such an act or omission. (c) Willful Disregard of the Employer's Interest. To find that deliberate misconduct is in willful disregard of the employer's interest, the Administrator must find that: (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest; and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer's expectation or interest.
Although if left to its own devices, the court would agree with the referee's logical and reasonable determination about benefits, it must be noted that the board's determination that the plaintiff's conduct did not constitute a reckless disregard of the employer's interests does finds support in Section 31-236-26b of the Regulations of Connecticut State Agencies regarding violations of an employers' rules and regulations. The board found that the policy regarding accounts receivable was somewhat ambiguous and the penalty was disproportionate to the offense.
Section 31-236-26b of the regulations provides in pertinent part that:
"a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied" occurs if: (1) the employee knew or should have known the rule; (2) the employee's conduct violates the rule; (3) the employee was aware that he or she engaged in such conduct; (4) the rule is reasonable in light of the employer's business interests; (5) there is a clear relationship between the rule, the conduct regulated and the employer's business interest; (6) the rule is uniformly enforced in that the employer treats similarly situated employees subject to the rule in a similar manner if the rule is violated; and (7) the rule is reasonably applied in that the action taken by the employer is appropriate in light of the violation of the rule and the employer's interest and there were no compelling circumstances preventing the employee from adhering to the rule.
Additionally, there are three other reasons why the court affirms the decision of the board in this particular case. The first involves Practice Book § 22-4, which provides, in pertinent part, that if an appellant wishes the board's findings to be corrected, he or she must, within two weeks after the record is filed with the court, "file with the board a motion for the correction of the finding" accompanied by either portions of or the entire transcript. In Calnan v. Administrator, supra, 43 Conn. App. 785, the court stated that filing a motion with the board for correction of the findings is "a necessary prerequisite to a challenge to the board's decision." Accord Chavez v. Administrator, 44 Conn. App. 105, 106-07, 686 A.2d 1014 (1997). The plaintiff in this present case did not file such a motion and therefore the board's factual findings and those conclusions which are based on the weight of the evidence and the credibility of witnesses cannot be challenged.
The second reason is that the plaintiff, a corporation, is attempting to file a pro se appearance in this court. However, "[i]n Connecticut, a corporation may not appear pro se . . ." Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994). The present appeal is subject to dismissal on that ground alone. Id., 551.
Finally, the court must take into account the axiom that "[t]he Superior Court does not retry the facts or hear evidence in appeals under our unemployment compensation legislation. Rather, it acts as an appellate court to review the record certified and filed by the board of review." Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984).
In conclusion, the court finds that for the reasons noted the board was justified in finding that the claimant did not engage in wilful misconduct and was entitled to unemployment benefits. Therefore, the defendant's motion (#101) for judgment dated December 31, 2002, is granted and the plaintiff's appeal is dismissed.
So Ordered.
Dated at Stamford, Connecticut, this 21st day of May 2003.
William B. Lewis, Judge